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HomeMy WebLinkAboutAttachment E, Exhibit 1, I - McCain AgreementEXHIBIT I McCain Agreement 5764- 44062UP13360UGR M131136768.6 5/1/13 INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT (MCCAIN SMITH ROAD) THIS INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT (MCCAIN SMITH ROAD) (this "Agreement ") is dated for identification purposes this day of , 2013, is entered into by and between the CITY OF TUSTIN ( "City "), a California municipal corporation and the SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT ( "SOCCCD "), a California public agency. The City and SOCCCD may also be individually referred to in this Agreement as a "Party" and collectively as the "Parties." RECITALS A. In May 2002, the United States of America, acting through the Department of the Navy (the "Navy "), approved an economic development conveyance of the former Marine Corps Air Station, Tustin ( "MCAS Tustin ") to City. On May 13, 2002, a portion of MCAS Tustin (the "City Fee Property ") was conveyed by federal deed to City. In addition, a portion of MCAS Tustin (the "City Leased Property ") was leased by the Navy to City. B. 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 "Conveyance Agreement "), pursuant to which City agreed to convey a portion of the City Property comprising approximately 68.37 acres to SOCCCD on the terms and conditions set forth therein. Pursuant to the Conveyance Agreement, (1) City conveyed to SOCCCD fee title to approximately 37.66 acres of the City Fee Property (the "SOCCCD Fee Property") and (2) City subleased to SOCCCD approximately 30.71 acres of the City Leased Property (the "LIFOC 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 SOCCCD Fee Property and LIFOC Area are collectively referred to herein as the "SOCCCD Property." C. On or about April 27, 2009, SOCCCD submitted to City an application for approval of a Concept Plan for Phase 3A of the ATEP Site (the "Concept Plan "), as required pursuant to that certain MCAS Tustin Reuse Plan/Specific Plan, as amended from time to time (as so amended, the "Specific Plan "). On July 26, 2010, the City's Zoning Administrator adopted Zoning Administrator Action 10 -002 (the "ZA Action ") approving the Concept Plan. D. Concurrently with the execution hereof, City and SOCCCD are entering into the following agreements, among others: (1) An agreement for the exchange of real property (the "City Exchange Agreement "), pursuant to which SOCCCD has agreed (among other things) to convey to City by quitclaim deed certain portions of the SOCCCD Property, and City has agreed (among other things) to concurrently convey to SOCCCD by quitclaim deed certain other portions of MCAS 1 5764 -44062 \RJD403 \948167.19 5/1/13 Tustin. For the purposes of this Agreement, the "Exchange Close of Escrow" shall refer to the "Close of Escrow," as defined in the City Exchange Agreement. (2) An amendment and restatement of the Conveyance Agreement and constituting a Development Agreement pursuant to California Government Code Sections 65864, el seq. (the "Development Agreement "), which Development Agreement will be recorded in the Official Records of Orange County, California immediately following the execution thereof. The Development Agreement will become effective in accordance with its terms upon the Exchange Close of Escrow. Prior to the Exchange Close of Escrow, the Conveyance Agreement remains in effect. E. This Agreement is entered into by the City and SOCCCD in order to provide for the future reservation of certain easements, and to establish certain obligations of the Parties for design and construction of certain private streets and access aisles contemplated in the Specific Plan, the Concept Plan, the Conveyance Agreement or the Development Agreement (as applicable). AGREEMENT NOW, THEREFORE, in consideration of the foregoing, and of the covenants, promises and undertakings set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and SOCCCD agree as follows: 1. Definitions. Terms used in this Agreement and not otherwise defined shall have the meanings set forth in the Conveyance Agreement or the Development Agreement (as applicable) or the Specific Plan. Unless the context otherwise requires, the following terms utilized in this Agreement shall have the meanings herein specified: "Actual Cost" means the following costs of the Constructing Party with respect to McCain Road as identified in this Agreement: (a) the construction costs for McCain Road; (b) the Constructing Party's actual, reasonable cost of professional services directly related to construction of McCain Road, including engineering, legal, accounting, and similar professional services related to design and preparation of the McCain Plans and costs of environmental evaluations required specifically for such improvements, which costs in total shall not exceed ten percent (10 %) of the construction costs for such improvements; (c) the Constructing Party's actual, reasonable cost of construction management services, which costs in total shall equal (i) three percent (3 %) of the construction costs for McCain Road if construction management services are provided by the Constructing Party utilizing its own employees or individuals acting as consultants to the Constructing Party, or (ii) five percent (5 %) of the construction costs of McCain Road if construction management services are provided by the Constructing Party through an arm's- length retention of a construction management firm; (d) the Constructing Party's actual, reasonable cost of contract services, which costs in total shall not exceed five percent (5 %) of the costs of construction of McCain Road, including (i) construction service fees in an amount equal to the amount of fees actually paid by the Constructing Party to governmental agencies in order to obtain permits, licenses or other necessary governmental approvals and review of McCain Road, (ii) inspection, construction staking, and materials testing and (iii) the premium costs for payment bonds, performance bonds or maintenance bonds and insurance for 2 5764- 74062\RAD403 \948167.19 5/1/13 McCain Road; and (e) no item of cost relating to McCain Road shall be included in more than one category of cost specified in clauses (a) through (d) of this definition. "Commencement of Construction Deadline" shall have the meaning as set forth in Section 2.3. "Constructing Party" means the first Party to proceed with a construction project defined below as a "Project Initiation." "Construction Completion Deadline" shall have the meaning as set forth in Section 2.10. "BSA" shall mean the California Division of the State Architect. "Liabilities" shall have the meaning as set forth in Section 2.13. "LIFOC Area" shall have the meaning as set forth in Recital B. "McCain Budget Change" shall have the meaning as set forth in Section 2.5.3. "McCain Budget Change Allowance" shall have the meaning as set forth in Section 2.5.2. "McCain Operating Budget" shall have the meaning as set forth in Section 2.5.2. "McCain Plans" shall have the meaning as set forth in Section 2.4. "McCain Preliminary Budget" shall have the meaning as set forth in Section 2.5.1. "McCain Right -of -Way" shall have the meaning as set forth in Section 2. "McCain Road" shall mean the road to be constructed within the McCain Right -of -Way pursuant to Section 2. "McCain Street Standards" shall have the meaning as set forth in Section 2.2. "Non- Constructing Party" means the Party other than the Constructing Party. "Payment Request" shall have the meaning as set forth in Section 2.12. "Project Initiation" shall mean the issuance of a notice to proceed letter by either Party to its general contractor for construction of a project of substantial scope other than construction of McCain Road (i.e., a project with a cost of $1,000,000 or more) and shall not include (a) demolition activities; (b) incidental works of construction such as minor landscaping improvements; or (c) environmental mitigation activities by either Party. 2. McCain Road. The area on which McCain Road is to be constructed is more particularly described in Exhibit A to this Agreement and identified as the "McCain Right -of- Way." The McCain Right -of -Way lies north of Valencia Avenue and generally runs in an arc 3 5764- 440621RJD403 \948167.19 5/1/13 from Valencia Avenue on the southeast to Lansdowne Avenue on the west. The McCain Right - of -Way is immediately adjacent, on the south, to a parcel (the "Valencia Parcel ") consisting partly of SOCCCD Fee Property and partly of LIFOC Area subleased by the City to SOCCCD between Valencia Avenue and Lansdowne Avenue and, on the north, to an approximate 24 -acre parcel of City Leased Property intended for a City Community Park (the "Park Site "). 2.1 Easement for McCain Road. Upon the conveyance of fee title to the LIFOC Area subleased by City to SOCCCD pursuant to the Conveyance Agreement, City shall reserve non - exclusive easements over the McCain Right -of -Way, which reservation of easements shall be in the form of Exhibit B attached hereto. 2.2 Standards for Design and Construction of McCain Road. McCain Road shall be designed and constructed within the McCain Right -of -Way in accordance with, at a minimum, the then - applicable City street standards for private streets and in accordance with the cross - section attached hereto as Exhibit C (the "McCain Street Standards "), subject to review and approval of plans by the City Engineer and the DSA as set forth in Section 2.4 below; provided, however, that the McCain Street Standards shall not include any requirement to install sidewalk, landscaping and lighting on the north side of the McCain Right -of -Way. Further, in the event SOCCCD wishes to also provide parking on the south side of the McCain Right -of- Way, the curb -to -curb width from centerline south to the curb face as shown on Exhibit C will need to be increased from fourteen feet (14') to eighteen feet (18'). 2.3 Constructing Party. Construction of McCain Road shall be undertaken by the first Party to proceed with Project Initiation on either the Park Site (in which event City shall be the Constructing Party), or the Valencia Parcel (in which event SOCCCD shall be the Constructing Party). The Constructing Party shall notify the non - Constructing Party that Project Initiation has occurred within five (5) business days after the date of Project Initiation. The Constructing Party shall commence the design work for construction of McCain Road within sixty (60) days of Project Initiation and commence construction of McCain Road within ninety (90) days after receiving approval of the McCain Plans from the City Engineer and the DSA (the "Commencement of Construction Deadline "). In the event that either Party elects to do so, it may also give notice to the other Party that it intends to construct McCain Road prior to Project Initiation. The Party giving such notice shall be deemed the Constructing Party and shall be required to commence design work for construction of McCain Road within sixty (60) days after delivery of such notice and commence construction of McCain Road within ninety (90) days after receiving approval of the McCain Plans from the City Engineer and the DSA. 2.4 Plans. The Constructing Party shall employ qualified engineers, at its initial cost and expense (subject to provisions of Section 2.12), to prepare all plans, specifications, documents and drawings necessary and required for the construction of McCain Road (collectively, "McCain Plans "). The McCain Plans shall conform to all applicable federal, state, and local governmental laws, ordinances, rules, and regulations, including without limitation the McCain Street Standards and the requirements of the DSA ( "Governmental Requirements "). Upon completion of design development drawings, the Constructing Party (if City is the Constructing Party), shall provide SOCCCD with a set of such design development drawings and SOCCCD (whether it is the Constructing Party or the Non - Constructing Party) shall provide the same to the DSA for preliminary review, in order to expedite DSA's review of 4 5761- 44062\R1D403 \948167.19 5/1/13 the McCain Plans for compliance with state laws, rules and regulations. The Constructing Party shall make such revisions to the McCain Plans as are required in order to address the DSA's preliminary comments, and shall then submit the same to the Non - Constructing Party. The Non - Constructing Party shall have thirty (30) days to approve or disapprove the McCain Plans in its reasonable discretion (if the City is the Non - Constructing Party, then the City Engineer or, in the event the City Engineer is not available, his designee, shall be responsible for the approval or disapproval of the McCain Plans on behalf of the City). In the event that the Non - Constructing Party disapproves the McCain Plans, then the Parties shall meet in good faith to resolve the remaining issues. Failure of the Non - Constructing Party to give notice of approval or disapproval of the McCain Plans within the applicable time period set forth above shall be deemed approval. Upon approval or deemed approval of the McCain Plans by the Non - Constructing Party, SOCCCD shall submit the same to the DSA for final approval in accordance with the DSA's rules and regulations. If the DSA requires any changes in the McCain Plans as submitted and the City objects to the proposed changes, the Parties shall meet in good faith to discuss the DSA's required changes, which may include a meeting at the DSA's San Diego Office if mutually agreed by the Parties. If the Parties are unable to cause the DSA to withdraw or modify the DSA's required changes to the mutual satisfaction of the Parties, then (a) the Constructing Party shall cause its civil engineer to revise the McCain Plans, and (b) if the DSA's required changes either (i) cause the cost of constructing McCain Road to increase beyond the cost of constructing McCain Road in accordance with the McCain Plans as submitted to the DSA or (ii) will cause the City's cost of maintenance of Bell Avenue upon the completion thereof to materially increase, then, in either such event, the cost of such changes shall be borne solely by SOCCCD. The Constructing Party shall pay all permit fees, inspection fees, connection fees, and other fees customarily charged by applicable governmental authorities, as may now exist or as may be charged in the future, arising out of or related to the planning, engineering or construction of McCain Road, subject to provisions for reimbursement set forth in Section 2.12. 2.5 Budget. 2.5.1 The Constructing Party shall prepare a preliminary budget for the construction of McCain Road in accordance with the approved McCain Plans (the "McCain Preliminary Budget "). The Constructing Party shall submit the McCain Preliminary Budget to the Non - Constructing Party, and the Non - Constructing Party shall have thirty (30) days to approve or disapprove the same in its reasonable discretion. If the Non - Constructing Party disapproves the revised McCain Preliminary Budget, then the Parties shall meet in good faith to resolve the Non - Constructing Party's issues. Failure of the Non - Constructing Party to give notice of approval or disapproval of the McCain Preliminary Budget within the applicable time period set forth above shall be deemed approval. 2.5.2 The Constructing Party shall prepare a final operating line item budget for the construction of McCain Road in accordance with the approved McCain Plans and the approved McCain Preliminary Budget (the "McCain Operating Budget "). The McCain Operating Budget shall include an allowance of Twenty Thousand Dollars ($20,000) for a McCain Budget Change pursuant to Section 2.5.3 below (the "McCain Budget Change Allowance "). Each Party shall be responsible for obtaining the approval of the McCain Operating Budget from its governing body. No construction of McCain Road shall commence 5 5764 -04062 \R1 D403 \948167.19 5/1/13 until the McCain Operating Budget shall have been approved by the governing bodies of both Parties. 2.5.3 If the Constructing Party becomes aware of the need for a change to the McCain Operating Budget (a "McCain Budget Change "), it shall immediately notify the Non - Constructing Party of the same and the reason for such McCain Budget Change. The Non - Constructing Party shall have the right to approve or disapprove such McCain Budget Change in its reasonable discretion. The Parties shall meet as frequently as necessary in order to agree on the McCain Budget Change, so that the construction of McCain Road can continue without interruption. Without limiting the generality of the foregoing, the Constructing Party shall use the McCain Budget Change Allowance if necessary so that construction of McCain Road can continue without interruption while the necessary approvals of the McCain Budget Change are obtained by the Parties from their respective governing bodies. 2.6 Construction. At such time as the Constructing Party is required to commence construction of McCain Road hereunder, the Constructing Party shall employ a licensed contractor or contractors to construct and complete McCain Road at the sole cost and expense of the Constructing Party (subject to the provisions of Section 2.12). The McCain Road construction project shall be let in accordance with California Public Contract and Labor Codes and in accordance with any other applicable laws, rules, and regulations of all governmental authorities having jurisdiction over McCain Road. McCain Road shall be installed in strict compliance with the City and DSA approved McCain Plans and this Agreement. All requirements of the applicable storm water pollution protection plans for the McCain Right -of- Way shall be implemented and maintained by the Constructing Party. In addition, the Constructing Party shall install and maintain construction fencing separating the construction area from non - construction activities. 2.7 License. During the construction of McCain Road, upon written request of the Constructing Party, the Non - Constructing Party shall grant to the Constructing Party's contractor(s) a revocable license to use such portions of the Non - Constructing Party's property, in addition to the McCain Right -of -Way, as the Constructing Party may reasonably require for the construction of McCain Road or for the staging of construction equipment and materials. The location of the license area shall be subject to the mutual agreement of the Parties. The Constructing Party shall use reasonable efforts not to interfere with any construction activities of the Non - Constructing Party. If the Constructing Party's contractor(s) disturb any portion of the Non - Constructing Party's property outside the McCain Right -of -Way, then the Constructing Party shall cause such portion of the Non- Constructing Party's Property to be restored to its condition prior to the commencement of construction. 2.8 Insurance. The Constructing Party and/or its selected contractor shall obtain and continue in effect or cause to be obtained and continued in effect at all times when conducting activities related to the construction of McCain Road insurance conforming with the requirements of Exhibit D attached hereto. The obligation of the Constructing Party to continue in effect (or cause to continue in effect) insurance pursuant to this Section 2.8 shall survive the termination of this Agreement for any reason. 6 5764- 41062W04031948167.19 5/1/13 2.9 Notice of Completion. Upon satisfactory completion of McCain Road in accordance with the McCain Plans, the Constructing Party shall file promptly with the County Recorder of the County of Orange a Notice of Completion pursuant to the provisions of California Civil Code Section 9204. The Constructing Party shall furnish to the Non - Constructing Party a duplicate copy of such Notice of Completion showing thereon the date of filing with the County Recorder. The Constructing Party shall be responsible for obtaining project close -out from the DSA, the Regional Water Quality Control Board and all other applicable governmental authorities. In the event that City is the Constructing Party, then SOCCCD shall act as liaison in obtaining project close -out from the DSA, and shall assist in the selection of the required DSA certified inspector. SOCCCD shall provide City with the necessary supplementary condition language to the construction documents for McCain Road in order to meet DSA inspection and certification requirements. In no event shall McCain Road be opened for use by the public until project close -out from the DSA has been obtained by the Constructing Party. 2.10 Time for Completion of Construction. In the event that the Constructing Party commences construction, then such construction shall be completed by the date (the "Construction Completion Deadline ") which is twelve (12) months after the earlier of (a) the actual date on which construction commences or (b) the Construction Commencement Deadline; provided that the Parties recognize that the Construction Completion Deadline is premised on the Parties' being able to timely resolve disagreements as between themselves and the DSA, if any, with respect to obtaining final approvals of the various McCain Plans and Budgets called for under this Agreement and, to that extent, the Parties agree to timely cooperate in good faith to resolve such issues. In the event that the Constructing Party is prevented from commencing or completing construction because of an event of Force Majeure (as defined below), then the time for the Constructing Party's performance shall be extended for the period of time equal to the duration of such event of Force Majeure which prevented the Constructing Party from commencing or completing construction, provided that the Constructing Party notifies the Non - Constructing Party in writing within thirty (30) days from the date upon which the Constructing Party became aware of such event of Force Majeure. "Force Majeure" shall mean any of the following events, to the extent that such events are beyond the control of the Constructing Party and its consultants and not due to an act or omission of such Constructing Party and its consultants: acts of God, war, unusually severe weather, casualty (fire, earthquake or other casualty, in each case only if causing material physical destruction or damage to the McCain Right -of -Way), civil unrest (an epidemic, blockade, quarantine, rebellion, insurrection, act of terrorism, strike or lock -out, riot, act of sabotage, civil commotion, freight embargo, or lack of transportation), delays in obtaining required approvals from any governmental authorities, injunctions or litigation (a lawsuit that restrains, enjoins, challenges, or delays construction of McCain Road which directly impairs the ability of the Constructing Party to perform), delays caused by the bankruptcy by the Constructing Party's contractor(s) or delays caused by the surety company that issued payment or performance bonds for the construction of McCain Road. 2.11 Right to Cure. If the Constructing Party fails to construct or complete the construction of McCain Road on or before the date set forth herein, then the Non - Constructing Party may demand, by giving written notice to the Constructing Party, that the Constructing Party cure its breach The written demand must identify the obligation that is breached and the steps that the Non - Constructing Party believes are required to cure the breach. If the 7 5764- 14062V21D403 \948167.19 5/1/13 Constructing Party fails to commence to cure the breach within thirty (30) days of receipt of the written notice and proceed diligently to completely cure the breach, then the Non - Constructing Party may cure the breach with contractors selected by the Non - Constructing Party, subject to the requirements of the surety company that issued payment or performance bonds for the construction of McCain Road. In such event, the Non - Constructing Party shall be entitled to reimbursement for the costs it incurs in accordance with Section 2.12 below. 2.12 Reimbursement for Costs of Constructing McCain Road. (a) Payment Request. The Non - Constructing Party shall reimburse the Constructing Party for the "Applicable Percentage" (as defined below) of the Actual Costs incurred by the Constructing Party in the design and construction of McCain Road, to the extent that such Actual Costs are incurred in accordance with the McCain Operating Budget approved or deemed approved by the Non - Constructing Party pursuant to Section 2.5 above. At such time as the Constructing Party shall have filed a Notice of Completion of McCain Road, the Constructing Party shall deliver a payment request (the "Payment Request ") to the Non - Constructing Party. The Payment Request shall set forth an itemized account of all Actual Costs incurred in connection with the design and construction of McCain Road. The Constructing Party shall provide to the Non - Constructing Party, together with the Payment Request, such written evidence as the Non - Constructing Party shall reasonably require (including but not limited to interim and final waivers of lien and sworn statements) that all persons, firms, and corporations supplying work, labor, materials, supplies and equipment for the design and construction of McCain Road have been paid, and that no claims on behalf of any such person, firm or corporation remain. The Non - Constructing Party shall remit to the Constructing Party within thirty (30) days after receipt of the Payment Request an amount equal to the Applicable Percentage of the Actual Costs. (b) Applicable Percentage. For purposes of this Agreement, the "Applicable Percentage" shall be determined as follows: If as of the date (the "Payment Notice Date ") that the Payment Notice is delivered by the Constructing Party, the Exchange Close of Escrow has occurred, then the Applicable Percentage shall be thirty-three and 33/100 percent (33.33 %) for SOCCCD and sixty -six and 67/100 percent (66.67 %) for City. If the City Exchange Agreement has been terminated as of the Payment Notice Date, then the Applicable Percentage shall be fifty percent (50 %) for SOCCCD and fifty percent (50 %) for City. In either of the foregoing cases, the allocation shall be final. (c) Audit. The Non - Constructing Party shall have the right within thirty (30) days after receipt of the Payment Request to require an audit of the books and records of the Constructing Party which pertain to the Actual Costs shown in the Payment Request. Such audit shall be conducted by a public accounting firm mutually agreed by the Parties. Such audit shall be conducted at the Constructing Party's office during normal business hours and after ten (10) days' prior written notice and shall be completed within sixty (60) days of receipt of the Payment Request, The Non - Constructing Party shall pay the Constructing Party an amount equal to the Applicable Percentage of the Actual Costs as calculated by the auditor within thirty (30) days after the auditor submits the results of the audit. If the auditor determines that the Actual Costs were overstated by ten percent (10 %) or more, then the Constructing Party 8 5764- 440629210403 \948167.19 5/1113 shall pay the reasonable expenses of the audit. Otherwise, the Non - Constructing Party shall pay such expenses. 2.13 Indemnity. The Constructing Party shall protect, indemnify, defend and hold harmless the Non - Constructing Party, and its agents, contractors, employees, principals, and officers, and the Federal Government (with respect to any portion of the SOCCCD Property that is LIFOC Area), with counsel reasonably acceptable to the Non - Constructing Party, from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable attorneys' fees and court costs and expenses (all of the foregoing, collectively "Liabilities "), resulting from the Constructing Party's activities under this Agreement including, but not limited to, construction of McCain Road, except as to those Liabilities attributable to the gross negligence or willful misconduct of the Non - Constructing Party, or its agents, contractors, employees, principals, and officers. The Constructing Party's indemnification obligations set forth herein shall survive the termination of this Agreement for any reason. 2.14 Certain Traffic Standards. The intersection of McCain Road with Valencia Avenue shall allow right -in and right -out traffic only and such intersection will be posted (signed) accordingly. The Constructing Party shall be responsible for installing such signs in conformance with City standards, and the costs of such signs shall be included as part of the Actual Costs. The intersection of McCain Road with Lansdowne Road shall allow all turning movements (right -in, right -out, left -in, left-out). 3. Modification of Obligations upon the Exchange Close of Escrow. Effective upon the Exchange Close of Escrow, SOCCCD shall be responsible for modifying the Valencia median to close its opening at the intersection with the proposed McCord Road. 4. Miscellaneous. 4.1 Captions; Incorporation by Reference. The captions used herein are for convenience only and are not a part of this Agreement and do not in any way limit or amplify the terms and provisions hereof. Each of the Exhibits attached to this Agreement is hereby incorporated into this document as if set forth in full herein. 4.2 Interpretation; Governing Law. This Agreement shall be construed as if prepared by both parties hereto. Any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the drafting party shall not be applicable and is hereby waived. This Agreement shall be governed by and construed under the laws of the State of California. 4.3 Attorneys' 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. 4.4 Post - Judgment Attorneys' Fees. The prevailing party in any Action shall be entitled, in addition to and separately from the amounts recoverable under Section 5.3 above, to the payment by the losing party of the prevailing party's reasonable attorneys' fees, expert 9 5764-44062 T.04031948167.19 5/1/13 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 ruling 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 5.4 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. 4.5 Severability. In the event that any phrase, clause, sentence, paragraph, section, article or other portion of this Agreement shall become illegal, null or void, or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in force and effect to the full extent permissible by law. 4.6 Authority. Each of the individuals executing this Agreement verifies that each of them has the authority to enter into this Agreement, that the necessary resolutions or other consents have been passed or obtained, and that this Agreement shall be binding on the Owner for whom each of them is signing. 4.7 Further Actions. The parties shall execute and deliver such further documents and shall take such further actions as may be reasonably necessary to effectuate the terms of this Agreement. 4.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but when taken together shall constitute one and the same instrument. 4.9 Amendment. This Agreement only may be amended by a written instrument executed and acknowledged by both parties. 4.10 Conditions to ZA Action. Pursuant to Condition 1.6 to the ZA Action, the Parties hereby confirm and acknowledge that Conditions 1.4 and 1.5 to the ZA Action are null and void. Signatures on following page 10 5764-4406211(104031948167.19 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: Title: APPROVED AS TO LEGAL FORM: By: Name: Title: DATED: SOCCCD: SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT, a California public agency By: Name: Title: II 5764- 44062 \R30403 \948167.19 5/1/13 McCain Right of Way I : 1 1 EXHIBIT A - MCCAIN SMITH RIGHT-OF-WAY CITY or -11:071N C f.-/,`(1(••::UNIt PARR (z::1- A PAR:* 1E3 RIGHT-OF-WAY • "PROPOSED RAN PCL IV J-4 SOCCCD LEASE (LIFOC) 5.60 AC. VALENaA I —1 MIME t VK\ •:;\\:\ PCL. IV J-5 ‘s. SOCCCD LEASE (LIFOC) 1.91 AC. CITY CF OM.‘,..Y•117 t:D! A A DATE CREATED CREATED: 8/21(2012 Exhibit B Reservation of Easements Over McCain Road Note —This Reservation of Easements shall be included in the Quitclaim Deed of the LIFOC Area by the City to SOCCCD pursuant to the Development Agreement. In this Reservation of Easements, "Grantor" refers to City and "Grantee" refers to SOCCCD. The Exhibits referred to in this Reservation of Easements will be attached to the Quitclaim Deed. RESERVING THEREFROM UNTO GRANTOR the following non - exclusive easements: (a) an easement (the "Construction Easement ") over that portion of the Property consisting of McCain Road as more particularly described in Exhibit attached hereto ( "McCain Road "), for purposes of constructing street, parking, utility and landscaping improvements in McCain Road (the "McCain Improvements ") pursuant to improvement plans to be mutually approved by Grantor and Grantee; and (b) an easement (the "Permanent Easement ") over McCain Road for purposes of maintenance and operation of the McCain Improvements. The Permanent Easement shall be used by members of the public for the purpose of pedestrian and vehicular access to and from that certain park site owned by Grantor adjacent to McCain Road and more particularly described in Exhibit attached hereto (the "Park Site "). The Construction Easement and the Permanent Easement shall be appurtenant to the Park Site and shall inure to the benefit of Grantor and all successive owners of the Park Site. The burden of the Construction Easement and the Permanent Easement is intended to and shall run with McCain Road, and shall bind successive owners of McCain Road. The Construction Easement shall tenninate upon the recordation in the Official Records of Orange County, California of a Notice of Completion of the McCain Improvements pursuant to California Civil Code Section 9204. The Permanent Easement shall be perpetual. Grantor shall be responsible for maintaining the McCain Improvements at its sole cost and expense; provided however, that Grantee shall be responsible for maintaining any parking areas on the south side of McCain Road (as depicted on Exhibit attached hereto). 5764- 14062\RJD403 1948167.19 5/1/13 Exhibit C Cross - Section of McCain Road Exhibit B - Cross - Section of McCain Smith Road PROPOSED Sty LINE 50' It 18' 32' CITY OF TUSTIN COMMUNITY PARK 14' 18' SIDEWALK, LANDSCAPING AND STREET LIGHTS BY OTHERS 9' 4' 5' PARKING/ L/S S/W LANDSCP. 2.0 2.0% PROFILE GRADE 2.0% 2.0% McCAIN SMITH ROAD (2 LANES) PRIVATE ROAD — PARKING ON ONE SIDE NOT TO SCALE 5764440621R173403 \948167.19 5/1/13 Exhibit D Insurance Requirements A. Constructing Party shall be aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability for Workers' Compensation or undertake self - insurance in accordance with the provisions of that Code and shall comply with such provisions before commencing the performance of the work of this Agreement. B. Constructing Party and all subcontractors shall carry workers' compensation insurance for the protection of its employees during the progress of the work. The insurer shall waive its rights of subrogation against Non - Constructing Party, its officers, agents and employees and shall issue an endorsement certificate to the policy evidencing same. C. Constructing Party shall at all times carry, on all operations hereunder, bodily injury, including death, and property damage liability insurance, including automotive operations, bodily injury and property damage coverage; and builders' all risk insurance. All insurance coverage shall be in amounts specified by Non - Constructing Party in the Insurance Requirements and shall be evidenced by the issuance of a certificate in a form prescribed by the Non - Constructing Party and shall be underwritten by insurance companies satisfactory to Non - Constructing Party for all operations, subcontract work, contractual obligations, product or completed operations, all owned vehicles and non -owned vehicles. Said insurance coverage obtained by the Constructing Party, excepting workers' compensation coverage, shall name the Non - Constructing Party, its Directors, Officers, Agents, Employees, Engineers, and Consultants for this Agreement, and all public agencies from whom permits will be obtained and their Directors, Officers, Agents and Employees, as determined by the Non - Constructing Party, as additional insureds on said policies. D. Before Constructing Party performs any work at, or prepares or delivers materials to, the site of construction, Constructing Party shall furnish certificates of insurance evidencing the foregoing insurance coverages and such certificates shall provide the name and policy number of each carrier and policy and that the insurance is in force and will not be canceled without thirty (30) days written notice to Non - Constructing Party. Constructing Party shall maintain all of the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by Non -• Constructing Party. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of Non - Constructing Party by Constructing Party under Section 2.12 of this Agreement. Notwithstanding nor diminishing the obligations of Constructing Party with respect to the foregoing, Constructing Party shall subscribe for and maintain in full force and effect during the life of this Agreement, the following insurance in amounts not less than the amounts specified and issued by a company admitted in California and having an A.M. Best's Guide Rating of "A -" Class VII or better: However, Non - Constructing Party will accept 5764 - 41062 \R30403 \948167.19 5 /I /Il State Compensation Insurance Fund, for the required policy of Worker's Compensation subject to Non - Constructing Party's option to require a change in insurer in the event the State Fund financial rating is decreased below `B." Workers' Compensation Public Liability, in the form of either Comprehensive General Liability or Commercial General Liability written on a per - occurrence basis In Accordance with the Workers' Compensation Act of the State of California - Minimum of $1,000,000. $2,000,000 Combined Single Limit, per occurrence for bodily injury, death, and property damage; OR $2,000,000 per occurrence, with $2,000,000 aggregate for bodily injury, death, and property damage; OR $3,000,000 aggregate, separate for this project for bodily injury, death and property damage. Automobile Liability, including non -owned $1,000,000 combined single limit per and hired vehicles occurrence. The Constructing Party or its contractor ( "Contractor ") shall also obtain at its sole cost and expense and maintain in effect from the inception of the Agreement until the filing of a Notice of Completion and with an extended reporting period of not less than five (5) years after the filing of a Notice of Completion, Pollution Legal Liability insurance which provides financial protection and assurance for the benefit of the City and SOCCCD, for all claims, losses, expenses and costs related to or arising from pollution conditions, including those related to asbestos containing materials, lead based paint, PCBs and petroleum products and their derivatives that are created, released or conveyed through the Constructing Party's or its Contractor's or the Contractor's agents' activities and performance under this Agreement including negligence or failure to perform the project ( "Environmental Pollution Insurance "). Contractor shall provide both Parties with a Certificate of Insurance form which evidences the required Environmental Pollution Insurance. This certificate shall be submitted with the Agreement documents and shall cover risks associated with personal injury, property damage, defense costs and remediation costs, in an aggregate amount of not less than $2 ,000,000.00 and with a self - insured retention amount not in excess of $100,000 per claim. Such insurance contract shall name the City, the Tustin Public Financing Authority, SOCCCD and the Department of the Navy (only for those portions of the project within a LIFOC Area) as additional insureds, without any limitations on coverage different from those provided for the Contractor. Such policy shall provide that the carrier waives any right of subrogation against the City, the Tustin Public Financing Agency and SOCCCD. Such policy shall not be a cancelable by the Constructing Party or its Contractor without the prior written consent of the Non - Constructing Party, and shall have the premium paid at inception and 100% earned at that time. The Constructing Party or its Contractor shall provide evidence of its ability to satisfy multiple self - insured 5764- 44062\R10403 \948167.19 5/1/13 retention amounts (multiple SIRs would be the SIR for each claim so if there were 5 claims, the Contractor would have to satisfy the $100,000 SIR 5 times). The Non - Constructing Party or its representatives shall at all times have the right to inspect and receive the original or a certified copy of all said policies of insurance, including certificates. The Constructing Party shall pay the premiums on the insurance hereinabove required. All or a portion of the insurance requirements provided herein may be satisfied through self - insured retentions maintained in the usual and customary practice of the Constructing Party. Notwithstanding the foregoing, City agrees that the "wrap up" insurance program previously approved by City in August 2009 shall be deemed to meet the requirements of this Exhibit D in the event that SOCCCD is the Constructing Party, provided that updated and current insurance certificates and required endorsements are submitted to the City in the same form as previously approved. However, to the extent that any subcontractors constructing the improvements pursuant to this Agreement are not covered by an additional named insured endorsement approved by the City, said subcontractor shall be required to meet the minimum insurance requirements noted herein. 5764- 440623RJ0403 \948167.19 5/1/13