CONTRACT 4887A AmendmentAgreement No. 4887A
FIRST AMENDED AND RESTATED SETTLEMENT AGREEMENT BETWEEN
THE WISEBURN UNIFIED SCHOOL DISTRICT AND
THE CITY OF EL SEGUNDO
This Agreement ( "Agreement ") is made and entered into this 19th day of January 2016
by and between the Wiseburn Unified 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. On May 22, 2013, the Parties entered into a Settlement Agreement that resolved a
dispute regarding District's High School and the Property (the "Original
Agreement "). To the extent they are applicable, the definitions set forth in the
Original Agreement are incorporated into this Agreement by reference.
B. To the extent they continue to be relevant for purposes of this Agreement, the
recitals set forth in Section 1 of the Original Agreement are incorporated by
reference.
C. Since the Original Agreement was executed, representatives from each Parry met
met to implement the terms and conditions of the Original Agreement.
D. Following a revision to the Project and an Addendum to the FEIR approved on
November 20, 2014, the Parties identified additional mutual interests for helping
to resolve the Dispute. Among other things, the Parties seek to construct a larger
Aquatics Center than anticipated in the Original Agreement.
E. The District Board and City's 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.
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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 Center" on the
Property.
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 54 x 25 meter pool for swimming, water polo, physical
education/recreational use. In addition, based on the El Segundo "Upgrade
Option," the Aquatics Center should include a snack or small kitchen
facility and a four lane shallow warm up pool with separate changing
facilities for men and women. If the Aquatics Center budget allows (as
reasonably determined by each Party), the Aquatics Center should include
spring board diving board.
ii. Two moveable bulkheads for short course swim.
iii. Associated support structures /facilities to include at a minimum locker
rooms and restrooms with an additional family restroom.
iv. Separate meters for electricity, water, and gas to be installed to-
differentiate the Aquatics Center from the rest of the High School. If the
Aquatics Center budget allows (as reasonably determined by each Party),
the Aquatics Center should include a Cogeneration system.
V. The Aquatics Center may include solar panels to reduce the cost of
utilities.
vi. The original conceptual design for the Aquatics Center is attached as
Exhibit "A," and incorporated by reference (the "Conceptual Design ") and
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the New El Segundo Upgrade Option is attached in Exhibit `B" and
incorporated by reference "New El Segundo Upgraded Option."
C. If, before construction commences on the Aquatics Center, the final budget for the
Aquatics Center provides inadequate funding for all of the options identified in
Section 2(B), then the Parties agree to cooperate to reduce the cost of the Aquatic
Center through value engineering; eliminating or reducing elements; and
otherwise redesigning the Aquatics Center to make it more cost effective.
D. 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 representation 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
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 provided that such
recommendations do not cause District's total costs for the Aquatics
Center to exceed project funding/budget of $6,000,000 as specified in
Section 6(A) below, or City pays for any costs in excess of this amount.
V. Should City and District have a dispute regarding matters under clause
(iv), District and City agree to submit such a dispute to nonbinding
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mediation as quickly as is practicable. The mediator must be a person
specializing 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.
E. 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.
F. The Aquatics Center will be named "City of El Segundo — Wiseburn Unified
School District Aquatics Center ", or such other name as mutually agreed to by
District and City.
3. PROCESSING AQUATICS CENTER PROJECT.
A. Timing Milestones /Requirements:
If the amended settlement agreement is approved by District Board,
District must immediately rnodify- its - Project flans -t(, itielttde-4he-AEluatics-- =--- --
Center and submit such plans to the Division of State Architect ( "DSA ")
as soon as reasonably practical.
ii. 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 District's progress and be
provided the Notice Inviting Bids, as well as construction schedules
submitted by the successful bidder.
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iii. 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.
The JUA will be executed by the Parties to this Agreement only; no other person
including, without limitation, the ESUSD, will be a party to the JUA or a third -
party beneficiary. City may, in its sole discretion, determine how (or if) ESUSD
may access or use the Aquatics Center other than as provided in 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, and a
subsequent 25 year renewal option that may only be exercised at City's
request.
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
I'll .,, ,,of.the ,,Aquatics - Centers including -the therapy -pool; -Monday4hrough - , -
Friday, for a maximum of six hours per day for the period commencing
one week before the start of the District's School Year through the end of
the District's School Year, and on select pre- agreed upon, non - school days
which days cannot exceed twelve days per year. All other 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
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academic year commences, District, ESUSD and City will develop a
master calendar for Aquatics Center use. The District and the City agree
to cooperate and entertain flexibility concerning scheduling of the uses of
the Aquatic Center.
iv. District's 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 ESUSD's sole exclusive use period. At all times during which City
has use of the Aquatics Center, City may utilize its park permitting
regulations as set forth in El Segundo Municipal Code ( "ESMC ") §§ 9 -8-
1, et seq. for purposes of scheduling events at the Aquatics Center with the
understanding that all persons residing in the District's boundaries are
considered City residents for purposes of the Aquatics Center only and
__.m _ - eniitled to ease he Aquatics, Center .on-the same.te�n -
residents of the City. If it is determined that the park permitting
regulations violate the bond restrictions, appropriate adjustments will be
made by the City.
vi. Except as otherwise provided, City will operate the Aquatics Center for
the term of the JUA. After the Aquatics Center receives its certificate of
occupancy, however, City may cease operations after providing District
with a two -year written notice. Notwithstanding City's ability to cease
operations, City will nevertheless, at a minimum, maintain and repair the
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pool and therapy pool for use by District students for at least five years
after the Aquatics Center receives its certificate of occupancy.
vii. City will provide as much notice as practicable before terminating the
JUA.
viii. The JUA must contain a mutual defense, indemnification and hold
harmless provision.
ix. 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.
X. The cost of utilities will be allocated between District and City based on
their respective exclusive use periods for the Aquatics Center.
xi. During the term of the JUA, District's share of revenue from the operation
of the Aquatics Facility must be allocated to City to offset City's share of
operation and maintenance costs.
xii. ESUSD's 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.
I. District and City will establish a replacement reserve fund ( "Replacement
Reserves ") to be maintained by District. The timing of the payments will
be governed by the JUA. The Replacement Reserves must be used by
District to make necessary capital improvements. City is not entitled to
reimbursement of any Replacement Reserves if it terminates the JUA, or
the JUA expires, before the expenditure of such funds.
ii. For the initial 25 year term of the JUA, District must contribute the sum of
$40,000 annually to the Replacement Reserves.
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iii. If the second 25 -year term of the JUA is exercised, District will annually
contribute $40,000 to the Replacement Reserves.
iv. In any subsequent terms of the JUA beyond a total of 50 years, if they are
exercised, District and City must each annually contribute $20,000 to the
Replacement Reserves.
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 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.
i. 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 ").
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 party's attorney's 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
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Agreement No. 4887A
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 JOINT USE AGREEMENT. The Parties agree to enter into an
agreement for use of the fields at the Project and at City -owned athletic fields at the northeast
corner of Mariposa Avenue and Nash Street (the "Athletic Field Agreement" or "AFA ").
Further, the Parties agree to cooperate in identifying other athletic facilities where joint and
reciprocal use of athletic facilities may be possible. The AFA may be part of the JUA or a
separate agreement.
6. DISTRICT RESPONSIBILITIES. Without admitting that the FEIR is deficient, District
must undertake the following obligations in response to City's concerns regarding the FEIR and
the Project:
A. District must pay up to $6,000,000 for the design, development, planning and
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 1600 students
to ensure Small Learning Communities.
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
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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. 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.
B. 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.
C. Both Parties agree to cooperate in efforts to seek outside funding — whether
through grants, donations, or corporate sponsorship — to help fund the Aquatics
Center budget.
D. Should the budget be inadequate to construct the Aquatic Center as anticipated by
this Agreement, and as otherwise modified in accordance with Section 2 of this
Agreement, City may (in the City Council's sole discretion) provide up to
$1,800,000 in funding.
E. - Notwithstanding -any- other - provision, City agrees to- provide $300,-000 -to- the - -
Aquatics Center budget for design costs, payable within 30 days of District
receiving approved (stamped) plans from the Division of the State Architect
(DSA). Should City opt to provide additional funds to the Aquatics Center budget,
i.e., up to an additional $1,500,000, those funds will be provided to the Aquatics
Center budget before bidding commences, in addition to all necessary funds to
complete the Aquatic Center Project. City understands and agrees that the
$300,000 provided for design costs will not be refunded to City even if this
Agreement terminates or if District fails to build the Aquatics Center.
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8. NO LIMITATION OF POWERS.
A. Nothing in this Agreement is intended to, nor can it, act as a limitation on City's
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.
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 District's 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
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the City's 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.
i. 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
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Agreement No. 4887A
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.
iv. A notice of completion for the Aquatics Center must be recorded not later
than July 31, 2018. If a notice of completion is not recorded by that date,
City is entitled to liquidated damages. City's entitlement to liquidated
damages will be extinguished upon a notice of completion being recorded
for the Aquatics Center.
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, - wliether -
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.
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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
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: fc1°1 y'
[DISTRICT].
"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 City's and District's decision to execute this Agreement, regardless of whether City's or
District's 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 parry 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
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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 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 Parry fully understands the terms of this Agreement.
17. FULL DISCLOSURE. Each Party acknowledges and represents that each Parry 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 Parry 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 Parry 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
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DISTRICT
Wiseburn Unified School District
13530 Aviation Boulevard
Hawthorne, California 90250
Attention: Superintendent
SETTLEMENT AGREEMENT
Agreement No. 4887A
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
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
attorneys' 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 District's 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. Except as otherwise provided, 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. This Agreement is intended to, and does, amend and restate the Original Agreement.
While specific provisions of the Original Agreement were incorporated by reference, the text of
this Agreement takes precedence over any conflicting provision of the Original Agreement and
accurately reflects the Parties' understandings.
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
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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.
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. AUTHORITY /MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and
to engage in the actions described herein. This Agreement may be modified by written
agreement. City's city manager may execute any such amendment on behalf of City.
30. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original.
VA
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IN WITNESS WHEREOF the parties hereto have executed this Agreement the day and
year first hereinabove written.
Wiser trtt Unifi (pool District
tl
srael Mora Date
President, Board of Trustees
Tom Rflinston,F/E :1.D. Date
Superintendent
ppi v& as to Form:
t olii Dietrich, .
t� inson, Andelson, Loya, Ruud & Romo
Attorneys for Wiseburn Unfied School District
17
City of El Segundo
� ''1 1")
Aw'4 S'�'
° IM�l ° "aentes Date
'irryo;r
Greg, rrpa nter` Date
7� ci' y Manager
App:rro�'eJ,,as to Form:
Mark D. Hensley,
City Attorney
SETTLEMENT AGREEMENT