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HomeMy WebLinkAboutAttachment E, Exhibit 1 of Res No. 13-34 - Agreement for Exchange of Real Property between City of Tustin and SOCCCDExhibit 1 of Resolution No. 13 -34 Agreement for the Exchange of Real Property between the City of Tustin and South Orange County Community College District DRAFT DATED: 5/1/13 AGREEMENT FOR THE EXCHANGE OF REAL PROPERTY BETWEEN THE CITY OF TUSTIN AND SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT DATED: , 2013 5764 .44062 \A P[3360\AGR Mll 1 136768.6 5/1/13 TABLE OF CONTENTS Page 1. AGREEMENT 6 1.1 Notice of Determination 6 1.2 Exchange 6 2. ESCROW 6 2.1 Escrow Instructions 6 2.2 Definition of Close of Escrow 7 3. APPROVAL OF CONDITION OF TITLE 7 3.1 SOCCCD's Approval of Condition of Title 7 3.2 City's Approval of Condition of Title 7 4. TITLE INSURANCE POLICIES 7 4.1 SOCCCD Title Insurance Policy 7 4.2 City Title Insurance Policy 8 5. DUE DILIGENCE REVIEW 8 5.1 Access to the Exchange Parcels 8 5.2 Documents 9 5.3 Approval 9 5.4 Environmental Insurance 9 6. INTENTIONALLY DELETED 9 7. CONDITIONS PRECEDENT TO CLOSE OF ESCROW 9 7.1 Mutual Conditions 9 7.2 SOCCCD's Conditions IO 7.3 City's Conditions 10 8. CLOSE OR CANCELLATION OF ESCROW 11 8.1 Closing Procedures 11 8.2 Escrow Cancellation 11 8.3 Items to be Delivered into Escrow 12 8.4 Escrow Holder's Instructions 14 8.5 Post - Closing Matters 15 8.6 IRS Form 1099 -S 15 9. COSTS AND PROBATIONS 15 9.1 Costs to be Paid by SOCCCD 15 9.2 Costs to be Paid by City 15 5764- 14062\API3360 \AGRM RI 136768.6 5/1113 TABLE OF CONTENTS (continued) Page 10. REPRESENTATIONS AND WARRANTIES; COVENANTS 16 10.1 SOCCCD's Representations and Warranties 16 10.2 City's Representations and Warranties 16 10.3 Interim Lease 16 11. MUTUAL RELEASES 17 11.1 Mutual Release and Waiver 17 11.2 Acknowledgment Concerning Releases 18 11.3 Monument Sign 18 11.4 Additional Agreements 18 12. DEFAULT 18 12.1 Events of Default 18 12.2 Remedies 18 13. POST - CLOSING COVENANTS 19 13.1 Possession 19 13.2 Subsequent Closings 19 13.3 County Land Exchange Closing 19 13.4 Perimeter Fencing 19 13.5 Reciprocal Access Agreement 19 13.6 Dedication of Bell Avenue ROW 19 13.7 Acquisition of Valencia Parcel No. 3 19 14. MISCELLANEOUS 20 14.1 Notices 20 14.2 Time of the Essence 21 14.3 Interpretation; Governing Law 21 14.4 Performance of Acts on Business Days 21 14.5 Attorney's Fees 21 14.6 Post - Judgment Attorneys' Fees 21 14.7 Further Assurances; Survival 21 14.8 Entire Agreement; Amendments 21 14.9 No Waiver 21 14.10 Assignment 22 14.11 Binding Effect 22 14.12 Headings; Cross - References; Exhibits 22 14.13 Counterparts 22 14.14 Effective Date 22 it 5 7 64- 41062\APB 360t\GR MT 1 136768.6 5/1/13 Designation LIST OF EXHIBITS Description Section Reference A Site Map Recital K B Legal Description of Warner Parcel (Area 1) Recital L C -1 Legal Description of Valencia Parcel No. 1 (Area 9) Recital L C -2 Legal Description of Valencia Parcel No. 2 (Area 7) Recital L D Legal Description of Child Care Parcel (Area 8) Recital L E -1 Legal Description of Portion of Red Hill Parcels Recital L North of Future Bell Avenue (Area 6) E -2 Legal Description of Portion of Red Hill Parcels Recital L South of Future Bell Avenue (Area 2) F -1 Legal Description of SOCCCD ROW Fee Property Recital M (Area 4) F -2 Legal Description of SOCCCD ROW Subleased Recital M Property (Area 5) G Legal Description of City ROW (Area 6) Recital M H Development Agreement Recital 0 I McCain Agreement Recital 0 J Bell Agreement Recital 0 K General Escrow Provisions Section 2.1 L City Exchange Parcels Commitment Section 3.1.1 M SOCCCD Exchange Parcels Commitment Section 3.2.1 N SOCCCD -City Quitclaim Deed Section 8.3.1(6) O SOCCCD -City Bill of Sale Section 8.3.1(c) P Bell Avenue Dedication Section 8.3.1(e) Q Sublease Amendment Section 8.3.1(f) R Notice of Sublease Amendment Section 8.3.1(g) 5 764- 14062\AP13360\AGR M'1\ 113676/1.6 5/1/13 S Termination of Notice Section 8.3.1(h) T Notice of Effective Date Section 8.3.10) U Amendment to CC &Rs Section 8.3.1(j) V Amendment to Bill of Sale Section 8.3.1(k) W Nonforeign Transferor Declaration (SOCCCD) Section 8.3.1(m) X -1 City - SOCCCD Quitclaim Deed Section 8.3.2(b) X -2 City ROW Deed Section 8.3.2(b) Y City - SOCCCD Bill of Sale Section 8.3.2(c) Z Nonforeign Transferor Declaration (City) Section 8.3.2(m) AA Interim Lease Section 10.3 iv 5764-44062 \ A PB360\AG R NI M 1 136768.6 5/1/13 AGREEMENT FOR THE EXCHANGE OF REAL PROPERTY THIS AGREEMENT FOR THE EXCHANGE OF REAL PROPERTY (this "Agreement "), dated for identification purposes this day of , 2013, is entered into by and between the CITY OF TUSTIN, a municipal corporation organized under the laws of the State of California ( "City "), and the SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, a public agency ( "SOCCCD "). City and SOCCCD are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS The Parties enter into this Agreement on the basis of the following facts, understandings and intentions: A. Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of Title XXIX of Public Law 101 -510; U.S.C. Section 2687 Note), as amended (the "Base Closure Law"), the United States of America determined to close the Marine Corps Air Station Tustin ( "MCAS Tustin ") located substantially within the City of Tustin. In 1992, the City was designated by the Office of Economic Adjustment on behalf of the Secretary of Defense as the local redevelopment authority ( "LRA ") for preparation of a reuse plan for MCAS Tustin and in order to facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic development of the City and surrounding region. B. In its capacity as the LRA, the City served as the lead agency for preparing the base reuse plan, the applicable environmental documents under Califomia law, and other documents related to the planning for the civilian reuse of MCAS Tustin. The City determined that the most appropriate tool to guide the conversion of the base from military to civilian use and to facilitate review and approval of entitlements, permits, and uses was the preparation of a combined reuse plan and specific plan. Accordingly, in or about October 1996, the City submitted the MCAS Tustin Reuse Plan (the "Reuse Plan ") to the United States of America, acting by and through the Department of the Navy (the "Navy "). The City subsequently amended the Reuse Plan in or about September 1998. C. On January 16, 2001, the Tustin City Council adopted Resolution 00 -90 that certified the Joint Final EIS/EIR for the Disposal and Reuse of MCAS Tustin (the "Final EIS /EIR "), and adopted Resolution 00 -91 that adopted General Plan Amendment 00 -001 establishing an MCAS Tustin Specific Plan general plan land use designation for the Tustin portion of the former MCAS Tustin. D. On March 2, 2001, the Navy published a Record of Decision approving the Reuse Plan as amended and approving the Final EIS /EIR. E. In May 2002, the Navy approved that certain Agreement between the United States of America and the City of Tustin, California for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin (the "Navy Conveyance Agreement "), which sets forth the terms and conditions for the conveyance of a portion of MCAS Tustin by the Navy to the City 1 5764-44062 \API.3360 AGRM111 1 36768.6 5/1/13 (the "City Property "). On May 13, 2002, in accordance with the Navy Conveyance Agreement, a portion of MCAS Tustin was conveyed by deed to the City (the "City Fee Property "). In addition, a portion of the City Property was leased by the Navy to the City (the "City Leased Property ") pursuant to that certain Lease in Furtherance of Conveyance between the United States of America and the City of Tustin, California for Portions of the Former Marine Corps Air Station Tustin dated May 13, 2002 (the "LIFOC "). F. The City adopted a final Specific Plan/Reuse Plan (the "Specific Plan ") covering MCAS Tustin by Ordinance 1257 adopted February 3, 2003. The Specific Plan was subsequently amended by a series of Ordinances as follows: Ordinance Nos. 1294, 1295, 1296 and 1297 adopted March 7, 2005; Ordinance 1299 adopted June 5, 2005; Ordinance 1311 adopted April 17, 2006; Ordinance 1335 adopted June 5, 2007; Ordinance 1379 adopted March 2, 2010; and Ordinance 1406 adopted October 18, 2011. G. On or about April 22, 2004, City and SOCCCD entered into that certain Agreement between the City of Tustin and the South Orange County Community College District for Conveyance of a Portion of MCAS, Tustin and the Establishment of an Advanced Technology Educational Campus (the "City Conveyance Agreement "), pursuant to which the City agreed to convey a portion of the City Property comprising approximately 68.37 acres (the "ATEP Site ") to SOCCCD on the terms and conditions set forth therein. Pursuant to the City Conveyance Agreement, (1) the City conveyed to SOCCCD fee title to approximately 37.66 acres of the City Fee Property (the "SOCCCD Fee Property"), pursuant to that certain Quitclaim Deed and Environmental Restriction Pursuant to Civil Code Section 1471 (the "2004 Quitclaim Deed ") recorded on April 29, 2004 as Instrument No. 2004000369376 in the Official Records of Orange County, California (the "Official Records "), and conveyed the personal property and utility distribution systems associated with the Initial Parcel and the Sublease Area (as defined below) pursuant to that certain Bill of Sale (the "2004 Bill of' Sale ") delivered concurrently with the 2004 Quitclaim Deed; and (2) City subleased to SOCCCD approximately 30.71 acres of the City Leased Property (the "Sublease Area "), pursuant to that certain Sublease between the City of Tustin and the South Orange County Community College District for a Portion of MCAS Tustin dated April 29, 2004 (the "Sublease "), a Short Form Notice of which was recorded in the Official Records on April 7, 2004 as Instrument No. 2004000373082. H. The Navy Conveyance Agreement has been amended by (1) that certain "Modification One (1) to Agreement between the United States of America Acting by and through the Secretary of the Navy and the City of Tustin California for Conveyance of a Portion of the Marine Corps Air Station, Tustin" dated April 10, 2006; (2) that certain "Modification Two (2) to Agreement between the United States of America Acting by and through the Secretary of the Navy and the City of Tustin, California, for Conveyance of a Portion of the Marine Corps Air Station, Tustin" dated July 31, 2006; and (3) that certain "Modification Three (3) to the Agreement between the United States of America and the City of Tustin California, for the Conveyance of a Portion of the Former Marine Corps Air Station Tustin" dated December 19, 2011. The term "Navy Conveyance Agreement" as used herein means the original Navy Conveyance Agreement as amended by the three Modifications described above. I. For the purposes of this Agreement, (1) the Navy Conveyance Agreement, the LIFOC and all other documents executed or to be executed prior to the "Closing Date" (as 2 5764-44062V1/4N3360 AGRMI \ 1 136768.6 5/1/13 defined in Section 8.1 below) by the Navy or the Navy and the City pursuant thereto affecting the ATEP Site shall be collectively referred to herein as the "Navy Conveyance Documents" and (2) the City Conveyance Agreement, the 2004 Quitclaim Deed, the Sublease and all other documents executed or to be executed prior to the Closing Date by the City or by the City and SOCCCD pursuant thereto affecting the ATEP Site shall be collectively referred to herein as the "City Conveyance Documents." J. Pursuant to Zoning Administrator Action 10 -002 adopted on July 26, 2010, the Zoning Administrator of the City approved Concept Plan 09 -001 for Phase 3A of the ATEP Site ( "Concept Plan 3A "). Pursuant to Concept Plan 3A, SOCCCD may develop up to 305,000 square feet of buildings (each, a "Phase 3A Building "; collectively, "Phase 3A Buildings ") that meet the current definition of an "Advanced Technology Educational Campus" (as such term is defined in the City Conveyance Agreement), subject to compliance with the conditions of approval of Concept Plan 3A. K. SOCCCD and the County of Orange (the "County") have entered into that certain Agreement for the Exchange of Real Property dated February 7, 2012, as amended by Amendment No. 1 thereto dated April 28, 2012, Amendment No. 2 thereto dated June 26, 2012 and Amendment No. 3 thereto dated , 2013 (as so amended, the "County Land Exchange Agreement"). As set forth in the County Land Exchange Agreement, SOCCCD and County desire to effectuate a land exchange (the "SOCCCD- County Land Exchange ") involving the following parcels within the former MCAS Tustin as identified on the map attached hereto as Exhibit A (the "Site Map "): SOCCCD desires to exchange a portion of the ATEP Site consisting of a ten (10) acre parcel identified on the Site Map as the "Armstrong Parcel" with a ten (10) acre parcel identified on the Site Map as the "County Parcel." L. In addition to the SOCCCD -County Land Exchange, SOCCCD and City believe that an exchange of parcels owned by the Parties within the former MCAS Tustin would be beneficial to both Parties. Such land exchange will involve the following parcels, each as identified on the Site Map (collectively, the "Exchange Parcels "): (1) SOCCCD will exchange the following parcels within the ATEP Site (collectively, the "SOCCCD Exchange Parcels "): (a) Warner Parcel: An approximately 6.8 acre parcel adjacent to future Warner Avenue and to the current Sheriffs Training Facility (the "Warner Parcel "). The Wamer Parcel is shown as Area 1 on the Site Map and is more particularly described in Exhibit B attached hereto. Previously, the Warner Parcel was improved with a helicopter hangar and an office building; however, SOCCCD has demolished such improvements, so that the only remaining improvements are at or below grade (b) Valencia Parcels: Two (2) parcels comprising approximately 3.98 acres in the aggregate located north of Valencia Avenue. One such parcel is located to the west of Lansdowne Road ("Valencia Parcel No. 1 "), is shown as Area 9 on the Site Map and is more particularly described in Exhibit C -1 attached hereto. The other parcel is located to the east of Lansdowne Road ("Valencia Parcel No. 2 "), is shown as Area 7 on the Site Map and is more particularly described in Exhibit C -2 attached hereto. Valencia Parcel No. 1 and Valencia Parcel No. 2 shall be collectively referred to herein as the "Valencia Parcels." Valencia Parcel No. 1 is 3 5764 -14062 \AP[ 360 \AGR MT 1 136768.6 5/1/13 currently improved with buildings comprising approximately 14,676 square feet which SOCCCD currently uses for classrooms, administrative offices and other educational uses. Valencia Parcel No. 2 is currently improved with a parking lot. (2) City will exchange the following parcels within the City Property (collectively, the "City Exchange Parcels "): (a) Child Care Parcel: An approximately 2.37 acre parcel adjacent to the County Parcel (the "Child Care Parcel"). The Child Care Parcel is shown as Parcel 8 on the Site Map and is more particularly described in Exhibit D attached hereto. The Child Care Parcel is currently improved with an approximately 14,936 square foot building that was previously used as a child care facility for MCAS Tustin, a parking lot, playground areas and ancillary structures. (b) Red Hill Parcels: Two (2) parcels comprising approximately 9.0 acres in the aggregate located adjacent to Red Hill Avenue (collectively, the "Red Hill Parcels "). The Red Hill Parcels are shown as Area 6 and Area 2 on the Site Map and are more particularly described in Exhibit E -1 and in Exhibit E -2 attached hereto. The Red Hill Parcels have been improved with certain former military buildings and related improvements that are scheduled to be demolished. (3) The Parties acknowledge that Valencia Parcel No. 2 and the Child Care Parcel are currently part of the City Leased Property. Accordingly, in order to effectuate the land exchange described above, it will be necessary to amend the Sublease to delete Valencia Parcel No. 2 and add the Child Care Parcel. M. City and SOCCCD also desire to extend Bell Avenue from its current eastern terminus at Red Hill Avenue across the ATEP Site to Armstrong Avenue, as shown on the Site Map (the "Bell Avenue Extension "). In order to effectuate the Bell Avenue Extension, the following transfers will be required pursuant to Section 13.6 below, each as identified on the Site Map: (1) SOCCCD ROW: SOCCCD will irrevocably dedicate to City from property it currently owns within the SOCCCD Fee Property a right -of -way comprising approximately 1.4 acres, is shown as Area 4 on the Site Map and is more particularly described in Exhibit F -1 attached hereto (the "SOCCCD ROW Fee Property"). In addition, SOCCCD will irrevocably dedicate to City all of its current and future right, title and interest in a right -of -way comprising approximately 1.1 acres within the Sublease Area that is shown as Area 5 on the Site Map and is more particularly described in Exhibit F -2 attached hereto (the "SOCCCD ROW Subleased Property "). Finally, SOCCCD will irrevocably dedicate to City the "City ROW" (as defined in Recital M(2) below) immediately following the conveyance of the same by City to SOCCCD pursuant to Recital M(2) below. (2) City ROW: The City will convey to SOCCCD from property that City currently owns in fee within the City Property a right -of -way comprising approximately 1.3 acres is shown as Area 3 on the Site Map and is more particularly described in Exhibit G attached hereto (the "City ROW "). SOCCCD will, in turn, immediately dedicate the City ROW to City as set forth in Recital M(1) above. 4 5764-44062 \APB360 AGRM111 136768.6 5/1/13 (3) Bell Avenue ROW. The SOCCCD ROW Fee Property, the SOCCCD ROW Subleased Property and the City ROW shall be collectively referred to herein as the "Bell Avenue ROW." There are certain former military buildings and related improvements that are partially located on portions of the Bell Avenue ROW. N. Prior to the execution hereof, City and SOCCCD entered into that certain Agreement for CEQA Processing and Joint Defense, dated October 29, 2012 (the "CEQA Processing Agreement "), which provides for compliance by City and SOCCCD with California Environmental Quality Act, California Public Resources Code, Sections 21000, et seq. ("CEQA ") in connection with the approval of this Agreement and the Development Agreement and certain related matters. O. Concurrently with the execution hereof, City and SOCCCD are entering into the following agreements: (1) Development Agreement: An amendment and restatement of the City Conveyance Agreement and constituting a Development Agreement pursuant to California Government Code Sections 65864, et seq. (the "Development Agreement ") in the form of Exhibit 1-1 attached hereto, which Development Agreement will be recorded in the Official Records immediately following the execution thereof; (2) McCain Agreement: An agreement concerning the improvement of McCain - Smith Road, and concerning the sharing of the cost of such improvements, in the form of Exhibit l attached hereto (the "McCain Agreement "); and (3) Bell Avenue Agreement: An agreement concerning the improvement of Bell Avenue and concerning the sharing of the cost of such improvement within the Bell Avenue ROW, in the form of Exhibit J attached hereto (the "Bell Agreement "). P. On , 2013, the City Council of the City (the "City Council ") adopted Resolution No. approving an amendment to the City's General Plan (the "CPA ") and conducted a first reading of proposed Ordinance No. approving an amendment to the Specific Plan (the "SPA "), each of which incorporates changes that accommodate this Agreement, the Development Agreement and the Bell Agreement. On , 2013, the City Council conducted a second reading and adopted Ordinance No: , approving the SPA. Q. On , 2013, the City Council conducted a first reading of proposed Ordinance No. approving the Development Agreement. On , 2013, the City Council conducted a second reading and adopted Ordinance No. , approving the Development Agreement. On , 2013, the City Council adopted Resolution No. approving this Agreement, the McCain Agreement and the Bell Agreement. R. In consideration of entering into this Agreement, the Development Agreement, the McCain Agreement and the Bell Agreement (collectively, the "SOCCCD -City Agreements "), the Parties desire to mutually release and waive any claims that they may have against each other under the City Conveyance Documents, effective as of the closing of the transactions described below. 5 5764 - 44062 \APB360 \AGRMT1 1 136768.6 5/1/13 S. Prior to the execution and delivery hereof, the governing body of each of the Parties has approved the execution and delivery of this Agreement. In connection with such approval, the governing body of each of the Parties, after independent review and consideration, certified a document (the "CEQA Document "), which is intended to render the action of the applicable governing body with respect to the approval hereof in compliance with the provisions of CEQA. NOW, THEREFORE, based upon the foregoing facts, in consideration of the mutual covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows: 1. Agreement. 1.1 Notice of Determination. Each of the Parties shall file a Notice of Determination under Section 21152 of the California Public Resources Code within five (5) working days after the approval of this Agreement and the certification of the CEQA Document by their respective goveming bodies. 1.2 Exchange. Upon the satisfaction or waiver of all of the conditions precedent to the Close of Escrow set forth in Section 7 below, then the following conveyances shall occur concurrently (collectively, the "Exchange "): (i) City shall convey to SOCCCD by quitclaim deed the Red Hill Parcels; (ii) SOCCCD shall convey to City by quitclaim deed the Warner Parcel and Valencia Parcel No. 1; and (iii) the Sublease shall be amended to delete Valencia Parcel No. 2 and add the Child Care Parcel. The dedication of the Bell Avenue ROW shall occur subsequent to the Exchange pursuant to Section 13.6 below, as follows: (I) SOCCCD shall dedicate to City for street purposes (A) its fee interest in the SOCCCD ROW Fee Property; (B) its subleasehold interest in the SOCCCD ROW Subleased Property and (C) the City ROW; and (II) City shall convey to SOCCCD by quitclaim deed its fee interest in the City ROW. The Exchange and the dedication of the 13el1 Avenue ROW shall include all buildings and other improvements located on the Exchange Parcels and the Bell Avenue ROW, respectively. 2. Escrow. 2.1 Escrow Instructions. The Exchange shall be consummated through Escrow No. (the "Escrow ") at First American Title Insurance Company, 5 First American Way, Santa Ana, California 92707 Attention: Patty Beverly (the "Escrow Holder "). Escrow shall be opened within three (3) days following the execution of this Agreement by delivery to Escrow Holder of a fully executed copy of this Agreement by the Parties. The date that the Escrow is opened as indicated by the Acceptance by Escrow Holder attached hereto shall be the "Escrow Opening Date." This Agreement, together with the general escrow provisions attached hereto as Exhibit K shall constitute Escrow Holder's instructions. The Parties agree to execute and deliver to Escrow Holder such additional and supplemental instructions as Escrow Holder may require in order to clarify Escrow Holder's duties under this Agreement. However, in the event of any conflict or inconsistency between this Agreement and the general escrow provisions, the terms of this Agreement shall govern the duties of Escrow Holder and the rights and obligations of the Parties. 6 5764-44062 \APB360 136768.6 5/1/13 2.2 Definition of Close of Escrow. For purposes of this Agreement, the term "Close of Escrow" shall mean the time when Escrow Holder shall have recorded the instruments set forth in Section 8.4.2 below. 3. Approval of Condition of Title. 3.1 SOCCCD's Approval of Condition of Title. 3.1.1 City Exchange Parcels Commitment. Prior to the Effective Date, as defined in Section 14.14 below, SOCCCD received and approved that certain Title Commitment, identified as Order No. NCS and dated , 2013 (the "City Exchange Parcels Commitment "), covering the City Exchange Parcels issued by First American Title Insurance Company (the "Title Company "). A copy of the City Exchange Parcels Commitment is attached hereto as Exhibit L. Those exceptions to title set forth in the City Exchange Parcels Commitment are hereinafter referred to as the "City Exchange Parcels Permitted Exceptions." The City Exchange Parcels Permitted Exceptions shall exclude any delinquent taxes or any taxes due and payable prior to the Close of Escrow and any other monetary liens or encumbrances on the City Exchange Parcels. 3.1.2 SOCCCD Current Restrictions. The Parties acknowledge that the SOCCCD Fee Property is currently subject to certain covenants, conditions and restrictions set forth in the 2004 Quitclaim Deed (the "2004 CC &Rs "), which 2004 CC &Rs require modification in order to conform to this Agreement, Development Agreement and the Bell Agreement. Accordingly, upon the Close of Escrow and as a condition precedent thereto, the Parties shall execute, acknowledge and deliver an amendment to the 2004 CC &Rs in the form of the "Amendment to CC &Rs" (as defined in Section 8.3.1(k) below), pursuant to Sections 8.3.1(k) and 8.3.2(k) below. 3.2 City's Approval of Condition of Title. 3.2.1 SOCCCD Exchange Parcels Commitment. Prior to the Effective Date, City has received and approved that certain Title Commitment issued by the Title Company, identified as Order No. NCS and dated , 2013 ( "SOCCCD Exchange Parcels Commitment ") covering the SOCCCD Exchange Parcels, a copy of which is attached hereto as Exhibit M. Those exceptions to title set forth in the SOCCCD Exchange Parcels Commitment are hereinafter referred to as the "SOCCCD Exchange Parcels Permitted Exceptions." The SOCCCD Exchange Parcels Permitted Exceptions shall exclude any delinquent taxes or any taxes due prior to the Close of Escrow and any other monetary liens or encumbrances on the SOCCCD Exchange Parcels. 4. Title Insurance Policies. 4.1 SOCCCD Title Insurance Policy. At the Close of Escrow and as a condition thereto, the Title Company shall issue to SOCCCD a policy of title insurance (the "City Exchange Parcels Title Policy ") as to the City Exchange Parcels, containing the terms and provisions set forth in this Section 4.1. The City Exchange Parcels Title Policy shall be an ALTA Standard Coverage Owner's Policy (2006 Policy Form) in an amount mutually agreed to by the Parties, and in no event less than the fair market value of the City Exchange Parcels, 7 5764-14062 \ AI'Ei360\AGRM11 1 136768.6 5/1/13 showing fee simple or subleasehold title to the City Exchange Parcels (as applicable) vested in SOCCCD, subject only to the City Exchange Parcels Permitted Exceptions, and such other matters as to which SOCCCD may consent in writing. The premium for the City Exchange Parcels Title Policy and any costs incurred in connection with the search and examination of title and /or for the issuance of the City Exchange Parcels Commitment shall be paid by City. The City Exchange Parcels Title Policy shall be issued without reliance on any indemnity of City or any third party to induce Title Company to issue the City Exchange Parcels Title Policy, without the prior written consent of SOCCCD. If SOCCCD so elects and the Title Company agrees, the City Exchange Parcels Title Policy may include such endorsements as SOCCCD may reasonably request; provided however, that all such endorsements shall be issued at SOCCCD's sole cost and expense. In addition, if SOCCCD so elects and the Title Company agrees to issue an ALTA Extended Coverage Owner's Policy (2006 Policy Form), the "City Exchange Parcels Title Policy" as defined above shall be an ALTA Extended Coverage rather than an ALTA Standard Coverage policy, with all other elements remaining the same; provided however, that the additional premium for such extended ALTA coverage shall be paid by SOCCCD. 4.2 Citv Title Insurance Policy. At the Close of Escrow and as a condition thereto, the Title Company shall issue to City a policy of title insurance (the "SOCCCD Exchange Parcels Title Policy ") as to the SOCCCD Exchange Parcels, containing the terms and provisions set forth in this Section 4.2. The SOCCCD Exchange Parcels Title Policy shall be an ALTA Standard Coverage Owner's Policy (2006 Policy Form) in an amount mutually agreed to by the Parties, and in no event less than the fair market value of the SOCCCD Exchange Parcels, showing fee simple or leasehold title to the SOCCCD Exchange Parcels (as applicable) vested in City, subject only to the SOCCCD Exchange Parcels Permitted Exceptions, and such other matters as to which City may consent in writing. The premium for the SOCCCD Exchange Parcels Title Policy and any costs incurred in connection with the search and examination of title and /or for the issuance of the SOCCCD Exchange Parcels Commitment shall be paid by SOCCCD. The SOCCCD Exchange Parcels Title Policy shall be issued without reliance on any indemnity of SOCCCD or any third party to induce Title Company to issue the SOCCCD Exchange Parcels Title Policy, without the prior written consent of City. If City so elects and the Title Company agrees, the SOCCCD Exchange Parcels Title Policy may include such endorsements as City may reasonably request; provided however that all such endorsements shall be issued at City's sole cost and expense. In addition, if City so elects and the Title Company agrees to issue an ALTA Extended Coverage Owner's Policy (2006 Policy Form), the "SOCCCD Exchange Parcels Title Policy" as defined above shall be an ALTA Extended Coverage rather than an ALTA Standard Coverage policy, with all other elements remaining the same; provided however, that the additional premium for such extended ALTA coverage shall be paid by City. 5. Due Diligence Review. 5.1 Access to the Exchange Parcels. Prior to the Effective Date, City and SOCCCD executed that certain License Agreement dated March 14, 2013, in order to give each Party access to those Exchange Parcels which it shall receive pursuant to this Agreement for purposes of conducting its due diligence review (the "License Agreement "). The License Agreement shall remain in full force and effect in accordance with its terms. 8 5764 - 140626 \PB3601AGRNI7\1136768.6 5/1113 5.2 Documents. Prior to the Effective Date, each Party has delivered to the other Party copies of all written information in such Party's possession with respect to the Exchange Parcels to be acquired by the other Party, including all reports, maps and other written information in such Party's possession with respect to such Exchange Parcels, including all reports, maps and other written information, if any, which relate to the environmental condition of the Exchange Parcels. 5.3 Approval. Prior to the Effective Date, each Party has conducted such due diligence review of the Exchange Parcels which such Party shall receive pursuant to this Agreement as it deems appropriate, and each Party hereby approves the condition of the Exchange Parcel that it will receive pursuant to this Agreement. 5.4 Environmental Insurance. As part of its due diligence review, SOCCCD has determined that it is feasible to amend its existing Environmental Pollution Legal Liability Policy ( "Environmental Insurance ") for the ATEP Site to delete the SOCCCD Exchange Parcels and add the City Exchange Parcels without additional premium. In lieu of adding City as an additional insured to the Environmental Insurance as to the Warner Parcel, SOCCCD shall pay to City at the Close of Escrow the sum of Sixty Seven Thousand Seven Hundred Seventy - One and no /100 Dollars ($67,771.00) (the "Environmental Insurance Credit "). City shall have the right (but not the obligation) to obtain its own policy of environmental insurance as to the Warner Parcel after the Close of Escrow on such terms and conditions as it deems acceptable, at its sole cost and expense. 6. Intentionally Deleted. 7. Conditions Precedent to Close of Escrow. 7.1 Mutual Conditions. The following shall constitute conditions precedent to the obligations of SOCCCD and City to close the Escrow and may be waived only by a written waiver executed by both SOCCCD and City and delivered to Escrow Holder. 7.1.1 GPA/SPA. Each of the following events shall have occurred: (a) the GPA and SPA adopted by the City as described in. Recital P above shall each be in full force and effect; (b) no revision of the GPA or the SPA shall be in any stage of any approval process; and (c) any and all applicable statutes of limitation with respect to a CEQA challenge to the adoption of the GPA, the SPA, the CEQA Document or the City's compliance with CEQA in connection with the GPA or the SPA, shall have expired or, if the GPA, the SPA, the CEQA Document or the City's CEQA compliance shall have been challenged, such challenge shall have failed to affect the City's approval of the GPA, the SPA, the CEQA Document or the validity of the City's CEQA compliance. 7.1.2 Development Agreement. Each of the following events shall have occurred: (a) City and SOCCCD shall have approved and executed the Development Agreement and shall have delivered the same to Escrow Holder pursuant to Section 8.3 below; and (b) any and all applicable statutes of limitation with respect to a judicial CEQA challenge or electoral challenge to the Development Agreement shall have expired, or if the Development Agreement shall have been challenged, such challenge shall have failed to affect the validity of the Development Agreement. 9 5764- 440621A I' a 360 AGM M 1\ 1 13 676 8.6 5/1113 7.1.3 Bell Agreement. City and SOCCCD shall have approved, executed and delivered the Bell Agreement. 7.1.4 McCain Agreement. City and SOCCCD shall have approved, executed and delivered the McCain Agreement. 7.2 SOCCCD's Conditions. Each of the following shall constitute a condition precedent to the obligations of SOCCCD to close the Escrow and may be waived only by a written waiver executed by SOCCCD and delivered to City and to Escrow Holder: 7.2.1 Interim Lease. City and SOCCCD shall have entered into the Interim Lease described in Section 10.3 below. 7.2.2 Environmental Insurance. The carrier of SOCCCD's Environmental Insurance shall have irrevocably committed to issue an amendment to the policy of Environmental Insurance deleting the SOCCCD Exchange Parcels from coverage and adding the City Exchange Parcels for coverage effective upon the Close of Escrow, for no additional premium. 7.2.3 City Documents. City shall have deposited in Escrow the funds and documents set forth in Section 8.3.2 below. 7.2.4 Title Policy. The Title Company shall be irrevocably committed to issue the City Exchange Parcels Title Policy upon the Close of Escrow. 7.2.5 No Material Change. As of the Close of Escrow, there shall be no material change in the City Exchange Parcels that would materially impair SOCCCD's use or development of the City Exchange Parcels. 7.2.6 Representations and Warranties. All of City's representations and warranties as set forth herein shall be true as of the Close of Escrow. 7.2.7 No Default. City shall not be in default hereunder. If SOCCCD does not give Escrow Holder written notice of City's default, for purposes of this Section 7.2.7 only, City shall be deemed not to be in default hereunder, and Escrow Holder shall proceed with the Close of Escrow as though City were not in default. SOCCCD's failure to give such notice to Escrow Holder shall not excuse performance by City of any obligation hereunder. 7.3 City's Conditions. Each of the following shall constitute a condition precedent to the obligations of City to close the Escrow and may be waived only by a written waiver executed by City and delivered to SOCCCD and to Escrow Holder: 7.3.1 SOCCCD Conveyance Documents. SOCCCD shall have deposited in Escrow the funds and documents set forth in Section 8.3.1 below. 7.3.2 Title Policy. The Title Company shall be irrevocably committed to issue the SOCCCD Exchange Parcels Title Policy upon the Close of Escrow. 10 5764-44062 \ A P 6360 \A G R M T 1 136768.6 5/1/13 7.3.3 No Material Change. As of the Close of Escrow, there shall be no material change in the SOCCCD Exchange Parcels that would materially impair City's use or development of the SOCCCD Exchange Parcels. 7.3.4 Representations and Warranties. All of SOCCCD's representations and warranties as set forth herein shall be true as of the Close of Escrow. 7.3.5 No Default. SOCCCD shall not be in material default hereunder. If City does not give Escrow Holder written notice of SOCCCD's default, for purposes of this Section 7.3.5 only, SOCCCD shall be deemed not to be in default hereunder, and Escrow Holder shall proceed with the Close of Escrow as though SOCCCD were not in default. City's failure to give such notice to Escrow Holder shall not excuse performance by SOCCCD of any obligation hereunder. 8. Close or Cancellation of Escrow. 8.1 Closing Procedures. The Parties agree that the Escrow shall close and Escrow Holder is instructed to close the Escrow upon the satisfaction or waiver of the last to be satisfied or waived of the conditions precedent to the Close of Escrow set forth in Section 7 above, but in no event later than June 28, 2013 (the "Closing Date "). 8.1.1 Issuance of Title Policies. Escrow Holder by closing the Escrow shall be deemed to have irrevocably committed to cause the Title Company to issue the City Exchange Parcels Title Policy and the SOCCCD Exchange Parcels Title Policy. 8.1.2 Failure of Close of Escrow to Occur. In the event that the Close of Escrow fails to occur by the Closing Date and neither Party is in default of its obligations hereunder, then either Party may cancel the Escrow by written notice to the other Party and to Escrow Holder. In the event that, due to a default by either Party, the Close of Escrow fails to occur by the Closing Date, then without waiving any rights or remedies which the non- Defaulting Party may have against the Defaulting Party (as defined in Section 12.1 below) under this Agreement, the non - Defaulting Party may cancel the Escrow upon written notice to the Defaulting Party and to Escrow Holder. 8.2 Escrow Cancellation. 8.2.1 If, for any reason, the Escrow is cancelled pursuant to Section 8.1.2 above, Escrow Holder shall return to the Parties delivering same all instruments which are then held by Escrow Holder in connection with the Escrow. 8.2.2 If the Escrow is cancelled pursuant to Section 8.1.2 above and neither Party is in default of its obligations hereunder, this Agreement shall be deemed to be terminated (with the exception of those provisions which expressly state that they are to survive such termination), and SOCCCD and City shall each bear one -half (1/2) of the title and Escrow fee and cancellation charges, if any. In such event, neither Party shall be obligated to the other to close the Escrow hereunder. 11 5764-1- 1062 \APB360 \AG RN1 r\ 1 136768.6 5/1/13 8.2.3 If the Escrow is cancelled pursuant to Section 8.1.2 above and SOCCCD is the Defaulting Party, SOCCCD shall pay the Escrow fee and cancellation charges. 8.2.4 If the Escrow is cancelled pursuant to Section 8.1.2 above and City is the Defaulting Party, City shall pay the Escrow fee and cancellation charges. 8.3 Items to be Delivered into Escrow. 8.3.1 SOCCCD. On or before one (1) business day prior to the date set for Close of Escrow, SOCCCD shall execute, acknowledge (as applicable) and deposit into Escrow the following: (a) Immediately available funds in the amount of the Environmental Insurance Credit plus District's share of costs described in Section 9.1 below; (b) One (1) original of a quitclaim deed as to the Warner Parcel and Valencia Parcel No. 1 in the form of Exhibit N attached hereto (the "SOCCCD -City Quitclaim Deed "); (c) Two (2) counterparts of a bill of sale as to the Warner Parcel and Valencia Parcel No. 1 in the form of Exhibit 0 attached hereto (the "SOCCCD -City Bill of Sale "); (d) Two (2) counterparts of the City - SOCCCD Bill of Sale (as defined in Section 8.3.2(c) below); (e) One (1) original of an irrevocable offer of dedication for street purposes of the Bell Avenue ROW in the form of Exhibit P attached hereto (the "Bell Avenue Dedication "); (t) Two (2) counterparts of an amendment to the Sublease deleting Valencia Parcel No. 2 and adding the Child Care Parcel in the form of Exhibit 0 attached hereto (the "Sublease Amendment "); (g) One (1) original of an Amendment to Short Form Notice of Sublease in the form of Exhibit R attached hereto (the "Notice of Sublease Amendment "); (h) One (1) original of a Termination of Short Form Notice of Agreement in the form of Exhibit S attached hereto (the "Termination of Notice "); (i) One (1) original of a Notice of Effective Date of Development Agreement in the form of Exhibit T attached hereto (the "Notice of Effective Date "); (j) One (1) original of an Amendment No. 1 to Covenants, Conditions and Restrictions in the form of Exhibit U attached hereto (the "Amendment to CC &Rs "); (k) Two (2) counterparts of an Amendment No. 1 to Bill of Sale in the form of Exhibit V attached hereto (the "Amendment to Bill of Sale "); 12 5764.44062b\P13360 \AGRA11\1136768.6 5/1/13 (1) Two (2) counterparts of the Interim Lease in the form of Exhibit AA attached hereto; (m) A nonforeign transferor declaration (the "Nonforeign Transferor Declaration (SOCCCD) ") substantially in the form of Exhibit W attached hereto; (n) A California state tax withholding certificate in accordance with the requirements of California Revenue and Taxation Code Section 18668 (the "California Tax Certificate (SOCCCD) "); and (o) Such other documents as may be reasonably required by Title Company or Escrow Holder in order to issue the SOCCCD Exchange Parcels Title Policy or otherwise required to transfer the SOCCCD Exchange Parcels to City in accordance with the terms of this Agreement. 8.3.2 Cj. On or before one (1) business day prior to the date set for Close of Escrow, City shall execute and deposit into Escrow the following: (a) Immediately available funds in the amount of City's share of costs described in Section 9.2 below; (b) One (1) original of a quitclaim deed as to the Red Hill Parcels in the form of Exhibit X -1 attached hereto (the "City - SOCCCD Quitclaim Deed "); and one (1) original of a quitclaim deed as to the City ROW in the form of Exhibit X -2 attached hereto (the "City ROW Deed "); (c) Two (2) counterparts of a bill of sale as to the Red Hill Parcels in the form of Exhibit Y attached hereto (the "City - SOCCCD Bill of Sale "); (d) Two (2) counterparts of the SOCCCD -City Bill of Sale; (e) Two (2) counterparts of the Sublease Amendment; (1) One (I) original of the Notice of Sublease Amendment; (g) One (1) original of the Termination of Notice; (h) One (1) original of the Notice of Effective Date; (i) One (I) original of the Amendment to CC &Rs; (j) Two (2) counterparts of the Amendment to Bill of Sale; (k) Two (2) counterparts of the Interim Lease; (1) A nonforeign transferor declaration (the "Nonforeign Transferor Declaration (City) ") substantially in the form of Exhibit Z attached hereto; 13 5764-421062 \ APB3601AGR1■1111 136768.6 5/I/13 (m) A California state tax withholding certificate in accordance with the requirements of California Revenue and Taxation Code Section 18668 (the "California Tax Certificate (City) "); and (n) Such other documents as may be reasonably required by Title Company or Escrow Holder in order to issue the City Exchange Parcels Title Policy or otherwise required to transfer the City Exchange Parcels to SOCCCD in accordance with the terms of this Agreement. 8.4 Escrow Holder's Instructions. At such time as all of the conditions precedent to the Close of Escrow shall have been satisfied or waived, the Escrow Holder shall proceed as follows: forth below: 8.4.1 Date as of the Close of Escrow, all instruments calling for a date. 8.4.2 Record the following documents in the Official Records in the order set (a) The City - SOCCCD Quitclaim Deed; (b) The SOCCCD -City Quitclaim Deed; (c) The Notice of Sublease Amendment; (d) The Termination of Notice; (e) The Notice of Effective Date; and (f) The Amendment to CC &Rs. 8.4.3 Deliver the following documents and funds: (a) To City: (i) The Environmental Insurance Credit; (ii) One (I) fully- executed counterpart of each of the following: (A) the City- SOCCCD Bill of Sale; (B) the SOCCCD -City Bill of Sale; (C) the Amendment to Bill of Sale; (D) the Sublease Amendment; and (E) the Interim Lease; and (iii) The SOCCCD Exchange Parcels Title Policy. (b) To SOCCCD: (i) One (1) fully- executed counterpart of each of the following: (A) the City - SOCCCD Bill of Sale; (B) the SOCCCD -City Bill of Sale; (C) the Amendment to Bill of Sale; (D) the Sublease Amendment; and (E) the Interim Lease; and (ii) The City Exchange Parcels Title Policy. 14 5764 - 44062 \APn36O AGRWTI 136768.6 5/1/13 8.4.4 Retain in Escrow the City ROW Deed and the Bell Avenue Dedication for later recordation pursuant to Section 13.6 below. 8.4.5 Give SOCCCD and City telephonic notice that the Close of Escrow has occurred. 8.5 Post - Closing Matters. After the Close of Escrow, Escrow Holder shall deliver the following: 8.5.1 To City: A copy, as recorded, of the documents recorded pursuant to Section 8.4.2 above, the original of the Nonforeign Transferor Declaration (SOCCCD) and the original of the California Tax Certificate (SOCCCD). 8.5.2 To SOCCCD: A copy, as recorded, of the documents recorded pursuant to Section 8.4.2 above, the original Nonforeign Transferor Declaration (City), and the original California Tax Certificate (City). 8.5.3 To Jackson, DeMarco, Tidus & Peckenpaugh, counsel to SOCCCD: Copies of all documents to be delivered to SOCCCD pursuant to Section 8.5.2 above. 8.5.4 To Kutak Rock, LLP, counsel to City: Copies of all documents to be delivered to City pursuant to Section 8.5.1 above. 8.6 IRS Form 1099 -S. For purposes of complying with Section 6045 of the Code, as amended by Section 1521 of the Code, Escrow Holder shall be deemed the "person responsible for closing the transaction," and shall be responsible for obtaining the information necessary to file and shall file within the time specified with the Internal Revenue Service Form 1099 -5, "Statement for Recipients of Proceeds from Real Estate, Broker and Barter Exchange Transactions." 9. Costs and Prorations. 9.1 Costs to be Paid by SOCCCD. SOCCCD shall pay the following costs: 9.1.1 The portion of the premium for the City Exchange Parcels Title Policy that is SOCCCD's responsibility pursuant to Section 4.1 above; 9.1.2 The premium for the SOCCCD Exchange Parcels Title Policy that is SOCCCD's responsibility pursuant to Section 4.2 above; and 9.1.3 One -half (1/2) of the Escrow fee. 9.2 Costs to be Paid by City. City shall pay the following costs: 9.2.1 The premium for the City Exchange Parcels Title Policy that is City's responsibility pursuant to Section 4.1 above; 9.2.2 The portion of the premium for the SOCCCD Exchange Parcels Title policy that is City's responsibility pursuant to Section 4.2 above; and 15 5764- 44062\A PB360 \AGR MT 1 136763.6 5/1/13 9.2.3 One -half (1/2) of the Escrow fee. 10. Representations and Warranties; Covenants. 10.1 SOCCCD's Representations and Warranties. As a material inducement to City to enter into this Agreement, SOCCCD makes the following covenants, representations and warranties to City set forth in this Section 10.1 as of the date hereof and as of the Close of Escrow. 10.1.1 SOCCCD's Authority to Execute Agreement. SOCCCD hereby represents to City that on and as of the date of this Agreement and on and as of the Close of Escrow, SOCCCD has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by SOCCCD pursuant hereto, and all required action and approvals therefor have been duly taken and obtained for the Close of Escrow. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of SOCCCD shall be duly authorized to sign the same on SOCCCD's behalf and to bind SOCCCD thereto. This Agreement and all documents to be executed pursuant hereto by SOCCCD are and shall be binding upon and enforceable against SOCCCD in accordance with their respective terms. 10.1.2 AS -IS. SOCCCD acknowledges that SOCCCD has inspected the City Exchange Parcels and made its own independent investigation of the same. SOCCCD further acknowledges that it is acquiring the City Exchange Parcels "AS -IS," in reliance solely on its own inspection of the City Exchange Parcels and on City's representations and warranties as set forth herein. 10.2 City's Representations and Warranties. As a material inducement to SOCCCD to enter into this Agreement, City makes the following covenants, representations and warranties to District set forth in this Section 10.2 as of the date hereof and as of the Close of Escrow. 10.2.1 City's Authority to Execute Agreement. City hereby represents to SOCCCD that on and as of the date of this Agreement and on and as of the Close of Escrow, City has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by City pursuant hereto, and all required action and approvals therefor have been duly taken and obtained for the Close of Escrow. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of City shall be duly authorized to sign the same on City's behalf and to bind City thereto. This Agreement and all documents to be executed pursuant hereto by City are and shall be binding upon and enforceable against City in accordance with their respective terms. 10.2.2 AS -IS. City acknowledges that City has inspected the SOCCCD Exchange Parcels and made its own independent investigation of the same. City further acknowledges that it is acquiring the SOCCCD Exchange Parcels "AS -IS," in reliance solely on its own inspection of the SOCCCD Exchange Parcels and on SOCCCD's representations and warranties as set forth herein. 10.3 Interim Lease. Upon the Close of Escrow, City, as lessor, and SOCCCD, as lessee, shall enter into a lease (the "Interim Lease ") of Valencia Parcel No. I and a portion of 16 5764-4-1062 W Pt3360 WGIt NMI 136768.6 5 /1 /13 Valencia Parcel No. 2 for a term of three (3) years. The Interim Lease shall be in the form attached hereto as Exhibit AA. 11. Mutual Releases. 11.1 Mutual Release and Waiver. Except as expressly set forth in this Agreement, City, on the one hand, and SOCCCD, on the other hand, each hereby agrees to and does forever waive, release, acquit and forever discharge the other Party and such other Party's predecessors, successors, subsidiaries and affiliates, and each of their respective elected and appointed officials, officers, directors, shareholders, members, partners, limited partners, agents, attomeys, employees, insurers and affiliates, and each of them, of and from any and all claims, losses, demands, obligations, liabilities, indebtedness, breaches of contract, disclosures, breaches of duty or any relationship, acts, omissions, misfeasance, cause or causes of action, debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, costs, fees, sanctions, losses and expenses of every kind, nature, description or character, and irrespective of how, why or by reason of what facts, which could, might or may be claimed to exist or whatever kind or name, whether known or unknown, suspected or unsuspected, developed or undeveloped, liquidated or unliquidated, which ever existed, now exists or may hereafter exist, each as though fully set forth herein at length, which in any way arise out of, are connected with or relate to the City Conveyance Agreement or the other City Conveyance Documents, except for any obligations expressly set forth in this Agreement, the Development Agreement, the CEQA Processing Agreement, the McCain Agreement, the Bell Agreement, or any of the documents that are attached thereto as exhibits and incorporated by reference therein (all of the Claims released under this Section 11.1 shall be collectively referred to as the "Released Claims "). Each Party each hereby covenants and agrees not to sue or assert, or to cause or assist any other person or entity to sue or assert, any claim or cause of action which is released by the Released Claims or which is based upon the Released Claims. The releases provided under this Section 11.1 shall be effective on the Close of Escrow. Each Party agrees, represents and warrants that it realizes and acknowledges that it may hereafter discover facts, in addition to or different from those which the Party now knows or believes to be true with respect to the subject matter of this Agreement and the Released Claims, and in furtherance of this intention, the releases given herein shall be and remain in effect notwithstanding the discovery of such additional or different facts. Each Party hereby expressly waives any and all rights conferred upon it by the provisions of California Civil Code Section 1542, and expressly consents that this release shall be given full force and effect according to each and all of its express terms and provisions. Section 1542 provides: "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." City Initials SOCCCD Initials 17 5764- 4- 1062 \\P B360\\GRMT 1 136768.6 5/1/13 Each Party hereby understands and acknowledges the significance and consequences of such release and specific waiver of Section 1542 and has been advised by independent legal counsel concerning the same. 11.2 Acknowledgment Concerning Releases. Notwithstanding anything in Section 11.1 above, each Party acknowledges and agrees that the Released Claims do not include any claim seeking to enforce or obtain a remedy for a breach of obligations created by the SOCCCD -City Agreements, or any of the documents that are attached thereto as exhibits and incorporated by reference therein. 11.3 Monument Sign. Without limiting the generality of the releases set forth in Section 11.1 above, effective upon the Close of Escrow, any obligation that SOCCCD may have to construct a monument sign on that portion of the Valencia Parcels generally described as the northeast corner of Red Hill and Valencia Avenues (whether pursuant to the Specific Plan, the conditions of approval for the construction of the Valencia Parcels Improvements, or any other document) shall be abrogated and shall be of no further force or effect. 11.4 Additional Agreements. The Parties further agree: 11.4.1 The settlement and resolution embodied in this Agreement is in good faith and is equitable; 11.4.2 This Agreement, its terms and provisions, and the releases set forth herein have been carefully read in their entirety by each of the Parties, each of which has had the benefit and advice of counsel of its choosing; 11.4.3 In entering into this Agreement and the settlement and releases set forth herein, each of the Parties is acting freely and voluntarily and without influence, compulsion or duress of any kind from any course, including, but not limited to, any other Party, its attorneys, representatives or anyone acting or purporting to act on behalf of any Party; and 11.4.4 Each Party to this Agreement represents and warrants that it has not heretofore assigned, transferred, encumbered or purported to assign, transfer or encumber in whole or in part, any claim, right or other matter transferred or released under this Agreement. 12. Default. 12.1 Events of Default. The failure of a Party (the "Defaulting Party ") to perform any material act to be performed by such Party, to refrain from performing any material prohibited act, or to fulfill any condition to be fulfilled by such Party under this Agreement, or under any agreement referred to herein or attached hereto as an exhibit, within thirty (30) days after written notice of such failure from the Non - Defaulting Party shall be an "Event of Default" by the Defaulting Party with respect to the Defaulting Party's obligations hereunder. 12.2 Remedies. Upon the occurrence of any Event of Default by a Defaulting Party, the non - Defaulting Party shall have such rights or remedies available to it under this Agreement or at law or in equity. 18 5764 -74062 AP13360 \AGRM7\ 1 136768.6 5/1/13 13. Post - Closing Covenants. 13.1 Possession. Possession of the SOCCCD Exchange Parcels shall be delivered to City upon the Close of Escrow, subject only to the SOCCCD Exchange Parcels Permitted Exceptions. Possession of the City Exchange Parcels shall be delivered to SOCCCD upon the Close of Escrow, subject only to the City Exchange Parcels Permitted Exceptions. Except as otherwise provided in the Bell Agreement, each Party shall be solely responsible after the Close of Escrow for demolishing any former military buildings or other improvements located on the Exchange Parcels received by such Party at its sole cost and expense. 13.2 Subsequent Closings. The Parties acknowledge and agree that fee title to the Child Care Parcel and the balance of the Sublease Property shall be conveyed to SOCCCD in one or more "Subsequent Closings" pursuant to the terms of Section 1.3.4 of the Development Agreement. 13.3 County Land Exchange Closing. The Parties agree to cooperate and to execute all documents necessary to consummate the SOCCCD- County Land Exchange pursuant to the County Land Exchange Agreement and Section 17 of the Development Agreement. 13.4 Perimeter Fencing. From and after the Close of Escrow, each Party shall be responsible for erecting and maintaining at its sole expense all perimeter fencing on the parcels acquired by such Party pursuant to this Agreement as required by the SPA, any applicable conditions of approval issued by City affecting the ATEP Site, or by any applicable agreements between SOCCCD and City. The Parties shall equally share the cost of erecting and maintaining any required perimeter fencing on any common property lines. 13.5 Reciprocal Access Agreement. In the event that the Parties mutually determine following the Close of Escrow that a reciprocal access agreement is necessary between Valencia Parcel No. 2 and Valencia Parcel No. 3 (as defined in Section 13.7 below), then the Parties agree to negotiate such reciprocal access agreement in good faith. 13.6 Dedication of Bell Avenue ROW. Either City or SOCCCD shall give Escrow Holder a notice (the "Dedication Notice ") to record the City ROW Deed and the Bell Avenue Dedication upon the first to occur of (a) the delivery by the City to SOCCCD of the "Project Initiation Notice" as defined in the Bell Agreement; or (b) the two (2) year anniversary of the Closing Date. Upon receipt of the Dedication Notice, Escrow Holder shall record the City ROW Deed and the Bell Avenue Dedication (in that order) in the Official Records. 13.7 Acquisition of Valencia Parcel No. 3. The Parties acknowledge that City desires to acquire from SOCCCD that certain 4.53 acre parcel of real property adjacent to Valencia Parcel No. 2 that is identified on the Site Map as Area 10 ("Valencia Parcel No. 3 "). SOCCCD and City agree to negotiate in good faith concerning the purchase price and the other terms and conditions of the acquisition of Valencia Parcel No. 3. In the event that the Parties are able to reach such agreement, then SOCCCD shall give City a credit against the purchase price of Valencia Parcel No. 3 in an amount equal to the "Demolition Avoided Cost" (as defined below). The "Demolition Avoided Cost" shall be equal to Five Hundred Thousand and no /100 Dollars ($500,000.00), and is equal to the amount that SOCCCD would otherwise have spent in order to demolish the helicopter hangar apron and other improvements at or below grade (to a depth of 19 5764- 47062\APB360 \AGRMT\ 1 136768.6 5/1/13 ten (10) feet) on the Warner Parcel if the Exchange had not occurred. In the event that the Parties are unable to reach agreement on the purchase price and the other terms and conditions of the acquisition of Valencia Parcel No. 3 within eighteen (18) months after the Closing Date, then SOCCCD shall pay to City within sixty (60) days after the expiration of such eighteen (18) month period an amount equal to one -half 0/2) of the Demolition Avoided Cost. 14. Miscellaneous. 14.1 Notices. All notices or other communications between City and SOCCCD required or permitted hereunder shall be in writing and personally delivered or sent by certified mail, return receipt requested and postage prepaid, sent by reputable overnight courier (such as Federal Express, UPS or DHL), or transmitted by electronic facsimile transmission (with electronic confirmation of receipt), to the following addresses: If to City: with a copy to: If to SOCCCD: with a copy to: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: Jeffrey Parker, City Manager Telefacsimile No. (714) 838 -1602 Kutak Rock, LLP 1101 Connecticut Avenue N.W., Suite 1000 Washington, D.C. 20036 Attention: George Schlossberg, Esq. Telefacsimile No.: (202) 828 -2488 South Orange County Community College District 28000 Marguerite Parkway Mission Viejo, California 92692 Attention: Debra Fitzsimons, Vice Chancellor of Business Services Telefacsimile No.: (949) 347 -2472 Jackson, DeMarco, Tidus & Peckenpaugh 2030 Main Street, 12th Floor Irvine, California 92614 Attention: Andrew P. Bernstein, Esq. Telefacsimile No.: (949) 752 -0597 A notice shall be effective on the date of personal delivery if personally delivered before 5:00 p.m. or otherwise on the day following personal delivery, or when received, if transmitted by electronic facsimile transmission (with electronic confirmation of receipt), or two (2) business days following the date the notice is postmarked, if mailed, or on the day following delivery to the applicable ovemight courier, if sent by overnight courier. Either Party may change the address to which notices are to be given to it by giving notice of such change of address in the manner set forth above for giving notice. 20 5764 - 44062 \APB360\AGRM1\ 1 136768.6 5/1/13 14.2 Time of the Essence. Time is of the essence of this Agreement and each and every term and provision hereof. 14.3 Interpretation; Governing Law. This Agreement shall be construed as if prepared by both Parties. This Agreement shall be construed, interpreted and governed by the laws of the State of Califomia and the laws of the United States of America prevailing in California. 14.4 Performance of Acts on Business Days. Unless specifically stated to the contrary, all references to days herein shall be deemed to refer to calendar days. In the event that the final date for payment of any amount or performance of any act hereunder falls on a Saturday, Sunday or holiday, such payment may be made or act performed on the next succeeding business day. 14.5 Attorney's Fees. In the event of any legal action or other proceeding between the parties regarding this Agreement (an "Action "), the prevailing party shall be entitled to the payment by the losing party of its reasonable attorneys' fees, expert witness fees, court costs and litigation expenses, as determined by the court. 14.6 Post - Judgment Attorneys' Fees. The prevailing party in any Action shall be entitled, in addition to and separately from the amounts recoverable under Section 14.5 above, to the payment by the losing party of the prevailing party's reasonable attorneys' fees, expert witness fees, court costs and litigation expenses incurred in connection with (a) any appellate review of the judgment rendered in such Action or of any other rating in such Action, and (b) any proceeding to enforce a judgment in such Action. It is the intent of the Parties that the provisions of this Section 14.6 be distinct and severable from the other rights of the Parties under this Agreement, shall survive the entry of judgment in any Action and shall not be merged into such judgment. 14.7 Further Assurances; Survival. Each Party will, whenever and as often as it shall be requested to do so by the other Party, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all such further conveyances, assignments, approvals, consents and any and all other documents and do any and all other acts as may be necessary to carry out the intent and purpose of this Agreement. All covenants and obligations contained in this Agreement which imply or require performance after the Close of Escrow and all representations and warranties of the Parties contained in this Agreement shall survive the Close of Escrow. 14.8 Entire Agreement; Amendments. This Agreement, together with the other written agreements referred to herein, is intended by the Parties to be the final expression of their agreement with respect to the subject matter hereof, and is intended as the complete and exclusive statement of the terms of the agreement between the Parties. As such, this Agreement supersedes any prior understandings between the Parties, whether oral or written. Any amendments to this Agreement shall be in writing and shall be signed by all Parties hereto. 14.9 No Waiver. A waiver by either Party hereto of a breach of any of the covenants or agreements hereof to be performed by the other Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions hereof. 2t 5764-44062 W PB360\AGRMTI 136768.6 5/1113 14.10 Assignment. Neither Party hereto shall assign its rights under this Agreement without the prior written consent of the other Party, which consent shall be in such Party's sole discretion; provided, however, that notwithstanding the foregoing SOCCCD shall have the right to assign its rights and delegate its obligations hereunder to an entity the board members of which are the same as the members of the Board of Trustees of SOCCCD or to a wholly -owned subsidiary of such an entity. 14.11 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assigns. 14.12 Headings; Cross - References; Exhibits. The headings and captions used in this Agreement are for convenience and ease of reference only and shall not be used to construe, interpret, expand or limit the terms of this Agreement. All cross - references in this Agreement, unless specifically directed to another agreement or document, shall refer to provisions in this Agreement and shall not be deemed to be references to any other agreements or documents. Each of the exhibits attached to this Agreement is hereby incorporated into this Agreement by this reference. 14.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. 14.14 Effective Date. This Agreement shall become effective on the date (the "Effective Date ") this Agreement is executed by the last of the persons required to bind the parties hereto as set forth opposite their respective signatures below. 22 5761- 44162\AP13 360\AG R M I\ 1 136768.6 5/1/13 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date set forth opposite their respective signatures below. DATED: CITY: CITY OF TUSTIN, a California municipal corporation By: Name: Jeffrey C. Parker Title: City Manager APPROVED AS TO LEGAL FORM: By: Name: Title: DATED: SOCCCD: SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, a California public agency By: Name: Gary L. Poertner Title: Chancellor 23 5764 - 4062 \AP13360 \AGliM 131136768.6 5/1/13 ACCEPTANCE BY ESCROW HOLDER Escrow Holder hereby acknowledges receipt of this fully executed Agreement on the day of , 20_, which date shall be the Escrow Opening Date, and accepts the escrow instructions set forth herein. ESCROW HOLDER: FIRST AMERICAN TITLE INSURANCE COMPANY By: Name: Title: 5764-14062 \ A PB360 \AGR MI11136763.6 5/1/13