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HomeMy WebLinkAboutAGENDA REPORT 2018 0221 CC SPC ITEM 05A ITEM 5.A. CM'OF? OrIRP Rds,,CALIFORNIA City Council Meeting of .7Z, al.aoiS AC"a li ON: „e %r MOORPARK CITY COUNCIL AGENDA REPORT BY: �- -` , TO: Honorable City Council FROM: David A. Bobardt, Community Development Director DATE: February 20, 2018 (CC Special Meeting of 2/21/2018) SUBJECT: Consider Mutual Release and Pre-Litigation Settlement Agreement between The Bennett Partnership and the City of Moorpark BACKGROUND/DISCUSSION On October 25, 2006, the City and Manuel Asadurian, Jr. entered into a Settlement Agreement in connection with the City's construction of a street widening and improvement project along Princeton Avenue. The Settlement Agreement also addressed unpermitted uses on property at 14110 Princeton Avenue and their encroachment onto adjacent City-owned property and the unimproved La Falda Avenue right-of-way, which bi-sects the property. This Settlement Agreement was recorded and binding on successors in ownership of the property at 14110 Princeton Avenue. On October 26, 2006, The Bennett Partnership purchased the property. For years, The Bennett Partnership did not take any action to address the terms of the 2006 Settlement Agreement and deadlines for performance specified in the Settlement Agreement had passed. As a result, on May 8, 2015, the City and The Bennett Partnership entered in to an Exchange Agreement and Mutual Escrow Instructions (Attachment 2) to update expired terms of the 2006 Settlement Agreement in order to effectuate the transfer to the City of road right of way in fee, a landscape easement, and an access and maintenance easement, or temporary construction easement from the 14110 Princeton Avenue property owned by The Bennett Partnership and to transfer to The Bennett Partnership portions of adjacent real property owned by the City. In addition, on April 26, 2017, the City and The Bennett Partnership entered into a License Agreement for Use of City-Owned Property for Access that authorized the use of City- owned property, including the La Falda Avenue right of way and to provide access to the 10,850 square foot real property purchased from the City by The Bennett Partnership. 1 Honorable City Council February 21, 2018 Page 2 The Bennett Partnership has still not fulfilled some of the terms of the 2015 Exchange Agreement, including the removal of unpermitted uses and the obtaining of an Industrial Planned Development (IPD) Permit. On September 18, 2017, The Bennett Partnership filed an application with CITY for IPD Permit No. 2017-02. These plans include the use of the property for their Fence Factory business, which they are proposing to relocate from its current location in Agoura Hills. This application was rejected by the • Community Development Department as incomplete on October 18, 2017 due to municipal code violations relating to continuing unpermitted uses on the property and incomplete plans. The Bennett Partnership now has initiated the removal of unpermitted uses from the property; however, at least one tenant with an unpermitted use has not cooperated in leaving the site. The unpermitted use of this property remains as the only outstanding item that makes the application for IPD Permit No. 2017-02 incomplete. • The Bennett Partnership has requested to be allowed to immediately begin moving its Fence Factory business on to the property as the business must be removed from the Agoura Hills location by April 30, 2018. Given the unpermitted business still on the property and the time needed to advertise and hold public hearings before both the Planning Commission and City Council, Community Development staff is unable to process IPD Permit application in time to allow Fence Factory to move on to the site and open for business by April 30, 2018. The attached draft Mutual Release and Pre-Litigation Settlement Agreement would allow the Fence Factory business to occupy the site on a temporary basis with a Temporary Use Permit until a decision is made on the IPD Permit application, and it sets forth new deadlines for compliance with all the uncompleted terms of the 2015 Exchange Agreement, except for those dependent on the Princeton Avenue widening project. Performance would be supported by a $20,000.00 payment for past City expenses related to the agreement and $100,000 cash deposit which would be refunded upon compliance with the terms of the agreement. In summary, The Bennett Partnership would have to perform the following: 1. By February 28, 2018, pay $120,000 in cash or cashier's check Deposit Payment to City. 2. By February 28, 2018, submit TUP Application to City for Temporary Occupancy of PROPERTY by Fence Factory for Sales and Equipment Rentals. Comply with all Conditions of TUP upon issuance. 3. By March 1, 2018, all taxable sales occurring on the property shall be reported to the State as occurring in Moorpark and proof shall be provided to the Community Development Director. 4. By March 22, 2018, remove all tenants, all stored items, all unclaimed items, all equipment, all materials, all stored or parked vehicles, operating or not, and all 2 Honorable City Council February 21, 2018 Page 3 vehicle parts from property that are not a part of the IPD Permit Application and abate any other code compliance violations on the site. In case tenant violates notification to vacate and court action is needed, tenant must be off property no later than October 22, 2018. 5. Maintain Business Registrations with City for all uses on site. 6. Bennett, Fence Factory and any other entity on the Property shall terminate all uses, vehicle and material storage within thirty (30) days of decision on IPD Permit No. 2017-02 if IPD Permit denied. 7. Complete all conditions of approval, including completion of all on-site and off- site improvements associated with IPD Permit by December 31, 2018. 8. Comply with any other terms of the May 8, 2015 Exchange Agreement, the License Agreement and the terms of the recorded Grant Deeds and temporary construction easements between the parties, not modified by this Agreement. 9. All buildings on the site shall comply with applicable local and California Building Codes prior to occupancy. FISCAL IMPACT None. STAFF RECOMMENDATION Authorize City Manager to sign Mutual Release and Pre-Litigation Settlement Agreement, subject to final language approval by the City Manager and City Attorney. Attachments: 1. 2015 Exchange Agreement 2. Draft Mutual Release and Pre-Litigation Settlement Agreement 3 CC ATTACHMENT I APNs 513-0-022-095, 105 & 125 (Owner—City of Moorpark) APN 513-0-022-015(Owner—Bennett) EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS This EXCHANGE AGREEMENT AND JOINT ESCROW INSTRUCTIONS ("A reement°) is made and entered into on •this 1:3441 day of , 2015, by and between the CITY OF MOORPARK, a municipal corpora ion ("City") and THE BENNETT PARTNERSHIP, A GENERAL PARTNERSHIP ("Bennett"), and constitutes an agreement to exchange certain real property interests between the Parties and the Parties' joint escrow instructions directed to Camarillo Escrow Company ("Escrow Holder"). RECITALS • A. The City of Moorpark ("City") and Manuel Asadurian, Jr. ("Asadurian") entered into a Settlement Agreement on-October 25, 2006 ("Settlement Agreement") in connection with the City's construction of a street widening and improvement project along Princeton Avenue(hereafter"Project"). B. The Settlement Agreement involved certain real properties owned by Asadurian, which are identified as Ventura County Assessor's Parcel Numbers 513-0- 022-015 and 513-0-040-105. It also involved the City-owned real property known as "Parcel A", which is a portion of the real property identified as Ventura County Assessor's Parcel Number 513-0-022-105, and Parcel "B", which is commonly known as La Falda Avenue. Parcel "A" and Parcel "B" are depicted on Exhibit 1. to the Settlement Agreement. The Settlement Agreement is attached as Attachment 1 hereto and is incorporated herein by this reference. C. On October 26, 2006, Bennett purchased from Asadurian that certain real property identified as APN 513-0-022-015, subject to the Settlement Agreement. Pursuant to the Settlement Agreement, the City and Asadurian agreed to the following transfers of real property interests: i. Asadurian agreed to sell to the City a road right of way in fee, a landscape easement, access and maintenance easement, and a temporary construction easement. Pursuant to the Settlement Agreement, the City agreed to (a) sell to Asadurian Parcel A in fee, subject to a reservation in favor of the City for a slope easement and landscape easement for future construction purposes and (b) authorize Asadurian to use Parcel B (La Falda Avenue) pursuant to a License Agreement. ii. Pursuant to the Settlement Agreement, the City and Asadurian agreed that the City would obtain fair market value appraisals of the subject property rights described in the Settlement Agreement and that they would each accept the fair Moorpark-Bennett Exchange Agreement Page 1 of 29 1549231 v2 4 market values set forth in the appraisals. The City and Asadurian also agreed to transfer to each other the subject property interests free and clear of any monetary encumbrances. D. Asadurian did not transfer to the City the road right of way in fee, landscape easement, access and maintenance easement, or temporary construction easement on that certain real property identified as APN 513-0-022-015 prior to conveying that property to Bennett. The City seeks to construct the Project. Accordingly, the purpose of this Agreement is to implement the transfer of the real property interests set forth in the Settlement Agreement and to update the completion dates of certain obligations of Bennett under the Settlement Agreement. E. The City will use an approximate 2,697 square foot portion of the City- owned property identified as Assessor's Parcel Number 513-0-022-105 to construct the public street and related improvements in connection with the Project. The City has determined, however, that it can construct the Project with a reservation of a temporary construction easement on Assessor's Parcel Number 513-0-022-105 in place of the reservation of the slope easement and landscape maintenance easement that the City reserved in the Settlement Agreement. Accordingly, the City and Bennett agree to modify the Settlement Agreement as set forth below to effect the transfers of the following real property interests in place of the real property interests contemplated in the Settlement Agreement: i. City Sale Property. At the Close of Escrow, as defined below, the City shall transfer to Bennett the following real property interests (referred to collectively below as the "City Sale Property") described more particularly on Attachment 2 to this Agreement, which is incorporated herein by this reference: • An approximate 10,850 square foot portion of the real property identified as Ventura County Tax Assessor's Parcel Number 513-0- 022-105 in fee described more particularly on Exhibit "A" and depicted on Exhibit "C" to Attachment 2 to this Agreement, which is incorporated herein by this reference. The City expressly reserves in favor of the City an approximate 5,265 square foot temporary construction easement for the construction of the Project. The City will use this 5,265 square foot temporary construction easement to construct the Project; to install landscaping; to make minor physical changes to the slope and grade in the 5,265 square foot area; and to demolish a structure and two foundation pads located in the 5,265 square foot area. The approximate 5,265 square foot temporary construction easement that the City is reserving in favor of itself is described more particularly on Exhibit "B" and depicted on Exhibit "C" to Attachment 2 to this Agreement, and incorporated herein by this reference. Moorpark-Bennett Exchange Agreement Page 2 of 29 1549231 v2 5 ii. Bennett Sale Properties, At the Close of Escrow, as defined below, Bennett shall transfer to the City the following real property interests (referred to collectively below as the "Bennett Sale Properties") described more particularly on Attachment 3 to this Agreement, which is incorporated herein by this reference: • An approximate 7,146 square foot area in fee for public street purposes, and all uses necessary or convenient thereto described more particularly on Exhibit "A" and depicted on Exhibit "C" to Attachment 3 to this Agreement, and incorporated herein by this reference. ° • An approximate 5,560 square foot temporary construction easement to facilitate the City's construction of the Project. The City will use the temporary construction easement to facilitate the construction of a retaining wall for the Project. The City will also use the 5,560 square foot temporary construction easement to complete minor grading in this area as part of the Project. The City will remove the existing driveway, fencing and pavement from the approximate 5,560 square foot temporary construction easement area. The approximate 5,560 square foot temporary construction easement is described more particularly on Exhibit"B" and depicted on Exhibit "C" to Attachment 3 to this Agreement, and incorporated herein by this reference. F. Except as set forth in this Agreement, the Parties are not modifying any other terms of the Settlement Agreement. Except as set forth in this Agreement, no additional compensation shall be paid by either party in consideration of the changes described in this Recital E. Now therefore, in consideration of the mutual covenants and agreements contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Bennett agree as follows: AGREEMENT 1. Exchange of Properties. a. Conveyance of City Sale Property to Bennett. In exchange for the conveyance by Bennett to the City of the Bennett Sale Properties, the City hereby agrees to convey to Bennett the City Sale Property discussed above in Recital E.i. and described more particularly on Exhibit "A" and depicted on Exhibit "C" to Attachment 2 to this Agreement. As set forth above in Recital E.i., the City expressly reserves in favor of the City an approximate 5,265 square foot temporary construction easement for the construction of the Project. The City will use this 5,265 square foot temporary construction easement to construct the Project; to install landscaping; to make minor physical changes to the slope and grade in the 5,265 square foot area; and to demolish Moorpark-Bennett Exchange Agreement Page 3 of 29 1549231 v2 • 6 a structure and two foundation pads located in the 5,265 square foot area. The approximate 5,265 square foot temporary construction easement is described more particularly on Exhibit "B" and depicted on Exhibit "C" to Attachment 2 to this Agreement. b. Conveyance of Bennett Sale Properties to City. In exchange for the conveyance by the City to Bennett of the City Sale Property, Bennett hereby agrees to convey to the City the Bennett Sale Properties described above in Recital E.ii. The Bennett Sale Properties include (i) an approximate 7,146 square foot area in fee for public street purposes, and all uses necessary or convenient thereto described more particularly on Exhibit "A" and depicted on Exhibit "C" to Attachment 3 to this Agreement, and (ii) an approximate 5,560 square foot temporary construction easement described more particularly on Exhibit "B" and depicted on Exhibit "C" to Attachment 3 to this Agreement to facilitate the City's construction of the Project. The City will use the 5,560 square foot temporary construction easement to to construct the Project; to install landscaping; to make minor physical changes to the slope and grade, and to construct a retaining wall. 2. Consideration. a. Consideration for Bennett Sale Property. As consideration for Bennett's conveyance to the City of the Bennett Sale Properties, the City shall, at the Close of Escrow (as defined below in Section 5.b.): i. Convey the City Sale Property to Bennett by executing and delivering to Escrow Holder a Grant Deed conveying the City Sale Property with the reservation in favor of the City of the approximate 5,265 square foot temporary construction easement in the form attached hereto as Attachment 4, which is incorporated herein by this reference. ii. Pay to Bennett the total sum of One Hundred Thirty-five Thousand Six Hundred Thirty-four Dollars ($135,634.00) for the Bennett Sale Properties. This sum includes the payment for the fair market value of the Bennett Sale Properties, payment for the loss, replacement and moving of any improvements, except for the mobilehome used as an office that is located within the approximate 5,560 square foot temporary construction easement area that the City will protect in place during the construction of the Project. The City's payment of the $135,634.00 is subject to the deduction of the amount of the Bennett Cash Payment (as defined in Section 2.b.). Said sums shall be paid by the City at the Close of Escrow (as defined below in Section 5.b.). iii. Enter into a License Agreement with Bennett in the form attached hereto as Attachment 5 authorizing Bennett to use Parcels B and F, which are depicted as access roadways on Exhibit 1 to Attachment 1 to this Agreement. Moorpark-Bennett Exchange Agreement Page 4 of 29 1549231v2 7 1 b. Consideration for City Sale Property. As consideration for the City's conveyance to Bennett of the City Sale Property and Bennett's use of City Parcels B and F pursuant to the License Agreement described in Section 2.a.iii., Bennett shall, at the Close of Escrow (as defined below in Section 5.b.): i. Convey the Bennett Sale Properties _to the City by (a) executing.and delivering to Escrow Holder a Grant Deed in the form attached hereto as Attachment 6 conveying to the City in fee the approximate 7,146 square foot area described on Exhibit A and depicted on Exhibit C to Attachment 3 to this Agreement for public street purposes and all uses necessary or convenient thereto; and (b) executing and delivering to Escrow Holder a Grant of Temporary Construction Easement in the form attached hereto as Attachment 7 conveying to the City the approximate 5,560 square foot temporary construction easement to facilitate the construction of the Project. Attachments 6 and 7 are incorporated herein by this reference. ii. Pay to the City the sum of Three Hundred Twenty-two Thousand Two Hundred Thirty-eight Dollars and Seventy-four Cents ($322,238.74) ("Bennett Cash Payment"), consisting of the following components: (a) One Hundred Ninety-five Thousand Three Hundred Dollars ($195,300.00) for the fair market value of the City Sale Property, replacement and moving of any improvements; (b)Twenty-Two Thousand Five Hundred ($22,500) for the cost of the six-foot tall screen wall described below in Section 3; (c) 7 % cents per square foot per month for the rental amounts due City by Asadurian, and Asadurian's successor-in-interest, commencing on October 25, 2006 up to the Close of Escrow for the rental of the approximate 10,850 square foot City Sale Property, which rental was converted to a month-to-month rental upon the holdover by Asadurian and Asadurian's successor-in-interest on the City Sale Property (said rental amount is One Hundred Four Thousand Four Hundred Thirty Dollars and Seventy-four Cents ($104,430.74) as of March 31, 2015); and (d) Eight Dollars ($8.00) for the unpaid license fee ($1.00 per year due annually commencing October 25, 2006 through October 25, 2014) due to City by Asadurian and Asadurian's successor-in- interest. Bennett shall pay the above sums in favor of the City at the Close of Escrow (as defined below in Section 6.b.). 3. Modifications to Settlement Agreement. a. Screening Wall and Improvements. i. Screening Wall. In lieu of Bennett constructing the 8-foot high screen wall required in Paragraph 1.j. of the Settlement Agreement, the Parties agree to modify the Settlement Agreement to expressly authorize the City to build a 6- foot high screen wall as part of the construction of the Project and that the City shall recapture the estimated cost of $22,500 from Bennett during Escrow. This sum is described above in Section 2.b.ii.(b). ii. City's Construction of Improvements. City shall further construct and install the curb, gutter, sidewalk and street improvements pursuant to Moorpark-Bennett Exchange Agreement Page 5 of 29 1549231v2 8 Paragraph 1.k. of the Settlement Agreement. Bennett shall pay to the City the cost of those improvements as provided in Section 1.k. of the Settlement Agreement within 15 calendar days of receiving an invoice from the City for the City's costs of installation of the curb, gutter, sidewalk and street improvements in accordance with Paragraph 1.k. of the Settlement Agreement. b. Business Registration. Within 30 calendar days from the Effective Date of this Agreement, Bennett shall pay or cause to be paid a business registration for all uses on real property identified as APN 513-0-022-015 determined to be legal and thus authorized to be on said property by the City. c. Industrial Planned Development Permit, Pursuant to the Settlement Agreement, Bennett's predecessor-in-interest sought to obtain approval of an Industrial Planned Development Permit (IPD) to establish the development and use rights of the Property and Parcel A. The time period for processing the IPD under the Settlement Agreement has lapsed. Accordingly, modifications to the time periods set forth in the Settlement Agreement are required. Within 60 calendar days of the Effective Date of this Agreement, Bennett shall submit to the City an Industrial Planned Development Permit (IPD) with all accompanying plans and documents. Bennett shall diligently pursue the IPD Permit application to completion in accordance with the Permit Streamlining Act. i. Unless outdoor storage is approved by the City on the real property identified as APN 513-0-022-015 or on Parcel A, Bennett shall remove and cease all outdoor storage on said parcels within (a) one year of the effective date of this Agreement, or(b) the.approval of the IPD Permit, whichever occurs first. ii. If the IPD is approved by the City, Bennett shall complete the construction and implementation of the conditions of the IPD within three years of the date of the City's approval of said IPD. If Bennett fails to complete the construction and implementation of the conditions of the IPD within three years of the effective date of the City's approval of the IPD, Bennett shall be deemed noncompliant and shall remove from the real property identified as APN 513-0-022-015 and on Parcel A all uses authorized by the IPD. 4. Driveway Access. In accordance with the Settlement Agreement, if Bennett has not constructed a new improved driveway access along Parcel F prior to construction of the Project, then the City shall design and construct said new improved driveway access, at its sole cost and expense. 5. Terms of Temporary Construction Easements. a. Duration of Temporary Construction Easements. The City shall have the right to enter, use and possess the following temporary construction easements to construct the Project 30 calendar days after the date that the City mails the Notice of Commencement of Construction of the Project to Bennett at the address Moorpark-Bennett Exchange Agreement Page 6 of 29 1549231v2 9 listed herein: (i) 5,560 square foot temporary construction easement described on described on Exhibit "B" and depicted on Exhibit"C" to Attachment 3 to this Agreement, and (ii) the approximate 5,265 square foot temporary construction easement that it is reserving in favor of itself described on Exhibit "B" and depicted on Exhibit "C" to Attachment 2 to this Agreement. The City's right to use these temporary construction easements shall terminate on the date that the City records the Notice of Completion of Construction for the Project. b. Restoration by City of Temporary Construction Easements. City shall generally restore the temporary construction easement areas described above in Section 5.a. to as close as possible to the pre-construction condition of these areas. Bennett, however, agrees and acknowledges that these temporary construction easements will have permanent minor grading and topography changes in the after condition as a result of the construction of the Project. The City will construct the Project and make these permanent changes to the temporary construction easements areas in accordance with the street improvement plans for the Project. Bennett further agrees and acknowledges that the temporary construction easement areas will not be returned to their pre-construction condition after the City completes the construction of the Project. c. Removal by Bennett of Personal Property from Temporary Construction Easements. Bennett agrees to remove any personal property, including mobilehomes and vehicles, from the Temporary Construction Easements within 30 days after Notice of Commencement of Construction is sent to Bennett at the address listed herein. City agrees to protect in place during construction the mobilehome currently utilized as an office by Bennett on Assessor's Parcel Number 513-0-022-015. 6. Opening and Close of Escrow. a. Opening of Escrow. For the purposes of this Agreement, the escrow ("Escrow") shall be deemed opened (the "Opening of Escrow") on the date Escrow Holder receives a copy.of this Agreement fully executed by City and Bennett. Escrow Holder shall promptly notify City and Bennett in writing of the date of the Opening of Escrow. City and Bennett may agree to execute, deliver and be bound by supplemental escrow instructions; provided, however, that no such supplemental escrow instructions shall be inconsistent or in conflict with, amend or supersede any portion of this Agreement. If there is any conflict or inconsistency between the terms of such instruments and the terms of this Agreement, then the terms of this Agreement shall control. b. Close of Escrow. For purposes of this Agreement, the "Close of Escrow" shall be the date that the City Deed, Bennett Deed and Bennett Grant of Temporary Construction Easement (as defined below in Section 9) are recorded pursuant to applicable law in the Official Records of the County of Ventura, California. Unless changed in writing by the City and Bennett, and provided all of City's Contingencies (as defined below) and Bennett's Contingencies (as defined below) have Moorpark-Bennett Exchange Agreement Page 7 of 29 1549231v2 10 been satisfied or waived in writing by the City and Bennett, respectively, the Close of Escrow shall occur sixty-days after the Opening of Escrow ("Outside Closing Date"); provided, however, that if either the City or Bennett is not prepared for the Close of Escrow, the Outside Closing Date shall automatically be extended by 15 business days. In no event shall the Close of Escrow occur after the Outside Closing Date unless a later date is mutually agreed to in writing by the Parties. This Agreement shall automatically terminate if the Close of Escrow has not occurred on or before, the Outside Closing Date, or later date extended by the Parties. 7. Title and Title Insurance. Upon the Opening of Escrow, Escrow Holder will obtain and issue title commitments for the City Sale Property and the Bennett Sale Properties. Escrow Holder will also request two copies each of all instruments identified as exceptions on said title commitments. Upon receipt of the foregoing, Escrow Holder will deliver these instruments and the title commitments to the City and Bennett. Escrow Holder will insure the City's fee interest in the approximate 7,146 square foot portion of the Bennett Sale Properties described on Exhibit "A" and depicted on Exhibit "C" to Attachment 3 to this Agreement at the Close of Escrow by a CLTA Owners' Standard of Policy Insurance ("City Policy"). Escrow Holder will insure Bennett's fee interest in the approximate 10,850 square foot City Sale Property described on Exhibit "A" and depicted on Exhibit "C" to Attachment 2 to this Agreement at the Close of Escrow by a CLTA Owners' Standard of Policy insurance ("Bennett Policy"). The City Policy and the Bennett Policy provided for pursuant to this Section will insure, respectively, (i) the City's interest in the Bennett Sale Properties and (ii) Bennett's interest in the City Sale Property. free and clear of all liens, restrictions and encumbrances, subject only to the following permitted conditions of title ("Permitted title Exceptions"): a. General and special real property taxes for the then current tax fiscal year that are a lien not then due and payable; b. The applicable zoning, building and development of any regulations of any municipality, county, state or federal jurisdiction affecting the Property; c. Public rights of way and utility easements of record; and d. Those non-monetary exceptions as provided below for the Bennett Sale Properties and the City Sale Property. i. Bennett Sale Properties. Those non-monetary exceptions approved by the City regarding the Bennett Sale Properties within ten (10) business days after the date the City receives the title commitment and legible copies of all instruments noted as exceptions therein. If the City unconditionally disapproves any such exceptions, Escrow will thereupon terminate, all funds deposited therein by the City will be refunded to the City (less City's share of escrow cancellation charges), and this Agreement will have no further force or effect. If the City conditionally disapproves any such exceptions, then Bennett will use Bennett's best efforts to cause such Moorpark-Bennett Exchange Agreement Page 8 of 29 1549231v2 11 exceptions to be removed by the Close of Escrow. If such conditionally disapproved non-monetary exceptions are not removed by the Close of Escrow, the City may, at the City's option, either accept the Bennett Sale Properties subject to such encumbrances, or terminate the Escrow and receive a refund of all funds deposited into Escrow by the City (less City's share of escrow cancellation charges), if any, and this Agreement will thereupon be of no further force or effect. At the Close of Escrow, the City's interest in the Bennett Sale Properties will be free and clear of all monetary encumbrances. ii. City Sale Property. Those non-monetary exceptions approved by Bennett regarding the City Sale Property within ten (10) business days after the date Bennett receives the title commitment and legible copies of all instruments noted as exceptions therein. If Bennett unconditionally disapproves any such exceptions, Escrow will thereupon terminate, all funds deposited therein by Bennett will be refunded to Bennett (less Bennett's share of escrow cancellation charges), and this Agreement will have no further force or effect. If Bennett conditionally disapproves any such exceptions, then the City will use the City's best efforts to cause such exceptions to be removed by the Close of Escrow. If such conditionally disapproved non-monetary exceptions are not removed by the Close of Escrow, Bennett may, at Bennett's option, either accept the City Sale Property subject to such encumbrances, or terminate the Escrow and receive a refund of all funds deposited into Escrow by Bennett (less Bennett's share of escrow cancellation charges), if any, and this Agreement will thereupon be of no further force or effect. At the Close of Escrow, Bennett's interest in the City Sale Property will be free and clear of all monetary encumbrances. 8. Deposit into Escrow of Funds Described in Section 2. a. The City covenants and agrees to deposit the funds described in Section 2.a.ii. with Escrow Holder within 15 business days after the date this Agreement is fully executed by the Parties. b. Bennett covenants and agrees to deposit the funds described in Section 2.b.ii. with Escrow Holder within 15 business days after the date this Agreement is fully executed by the Parties. 9. Deposit of Documents in Escrow by Parties. a. Deposit of City Documents. On or before the Close of Escrow, the City shall deposit, or cause to be deposited, with Escrow Holder the following items, duly executed and, where appropriate, acknowledged ("City's Delivered Items"): i. City Grant Deed. The Grant Deed conveying in fee to Bennett the approximate 10,850 square foot area subject to the City's reservation of an approximate 5,265 square foot temporary construction easement in the form attached hereto as Attachment 4 ("City Grant Deed"). Moorpark-Bennett Exchange Agreement Page 9 of 29 1549231 v2 12 ii. FIRPTA. The Certification of Non-Foreign Status in accordance with Internal Revenue Code Section 1445 (the "City FIRPTA Certificate"). iii. 593-C Form. A Withholding Exception Certificate (Form 593(c)) as contemplated by California Revenue and Taxation Code Section 18662 (the "City Withholding"). iv. Authority. Such evidence of City's authority and authorization to enter into this Agreement and to consummate the Close of Escrow as may be reasonably requested by Bennett and/or the Title Company. v. Further Documents, Funds or Items. Any other documents, funds or items, including, but not limited to, funds sufficient to pay for the City's Costs (as defined below in Section 14.a.), reasonably required for the Close of Escrow. b. Bennett's Deliveries to Escrow Holder. On or before the Close of Escrow, Bennett shall deposit, or cause to be deposited, with Escrow Holder the following items, duly executed and, where appropriate, acknowledged ("Bennett's Delivered Items"): i. Bennett Grant Deed. The Grant Deed conveying to the City in fee the 7,146 square foot area of the Bennett Sale Properties in the form attached hereto as Attachment 6 ("Bennett Grant Deed"). ii. Bennett Grant of Temporary Construction Easement. The Grant of Temporary Construction Easement to the City granting to the City the approximate 5,560 square foot temporary construction easement on the Bennett Sale Properties in the form attached hereto as Attachment 7 ("Bennett Grant of Temporary Construction Easement"). iii. FIRPTA. The Certification of Non-Foreign Status in accordance with Internal Revenue Code section 1445 (the "Bennett FIRPTA Certificate"). iv. 593-C Form. A Withholding Exception Certificate (Form 593(c)) as contemplated by California Revenue and Taxation Code § 18662 (the "Bennett Withholding"). v. Authority. Such evidence of Bennett's authority and authorization to enter into this Agreement and to consummate the Close of Escrow as may be reasonably requested by City and/or the Title Company. vi. Further Documents, Funds or Items. Any other documents, funds or items, including, but not limited to funds sufficient to pay for Bennett's costs (as defined below) reasonably required for the Close of Escrow. Moorpark-Bennett Exchange Agreement Page 10 of 29 1549231v2 13 10. The City's Due Diligence Contingency. a. Due Diligence, The City's obligation to acquire the Bennett Sale Properties and Bennett's obligations to convey the Bennett Sale Properties to the City are contingent upon the City determining, in the exercise of its sole and absolute discretion, that it is satisfied with its due diligence of all aspects of the Bennett Sale Properties ("City Due Diligence Contingency"). b. Properly Documents. Within ten business days after the Execution Date, Bennett shall provide to the City copies of any and all information regarding the Bennett Sale Properties in Bennett's possession or control, including but not limited to the following: soil reports, environmental or hazardous waste studies, engineering studies or any other studies or reports relating to the physical condition of the property or any agreements relating to the physical condition or use and development of the Bennett Sale Properties, if any ("Bennett Sale Properties Documents"). c. Right of Access. The City and its agents, employees and designees shall be afforded reasonable access and entry onto the Bennett Sale Properties during the Due Diligence Period to conduct such studies, tests, inspections and other investigations as determined by the City in its sole and absolute discretion in order to fully investigate the Bennett Sale Properties. All such studies, tests, inspections and other investigations shall occur at the City's sole cost and expense. The City shall provide Bennett with at least two business days' advance written notice prior to entering upon the Bennett Sale Properties for such purposes. The City shall indemnify, defend and hold Bennett harmless from any claim, liability, loss or expense asserted against Bennett or the Bennett Sale Properties in connection with the City's or its agents', employees' and designees' entry on the Bennett Sale Properties for such purposes, and, so long as this Agreement has not been terminated by the City due to Bennett's nonperformance, the City shall provide Bennett, at no cost to Bennett, copies of all reports issued in connection with the tests, studies, inspections and/or other investigations conducted by the City on the Bennett Sale Properties. d. Due Diligence Period. The City shall have 30 calendar days from the Execution Date ("City Due Diligence Period") within which to determine the City's satisfaction in its'sole and absolute discretion with the City Due Diligence Contingency. If the City is not satisfied with the City Due Diligence Contingency within the City Due Diligence Period, the City may terminate this Agreement by delivering written notice of such termination to Bennett on or before the expiration of the City Due Diligence Period, in which case all of the Parties' rights and obligations hereunder(other than those which are intended to survive such termination by the express terms hereof) shall terminate as well. Upon such termination, each party shall promptly take any and all actions necessary to cancel Escrow and to cause any documents or monies deposited therein to be returned to the depositing party. If the City does not provide written notice of termination of this Agreement within the City Due Diligence Period, the City Due Diligence Contingency shall be deemed to have been satisfied and waived, and this Agreement shall continue in full force and effect. Moorpark-Bennett Exchange Agreement Page 11 of 29 1549231v2 14 e. Condition of the Bennett Sale Properties. The satisfaction and waiver of the City Due Diligence Contingency shall constitute the City's determination that it is satisfied with its investigation of the condition of the Bennett Sale Properties and all material facts bearing on its acquisition of the Bennett Sale Properties. Except for Bennett's express representations and warranties under this Agreement, the City will acquire the Bennett Sale Properties "AS IS", with any and all faults and defects. 11. Bennett's Due Diligence Contingency. a. Due Diligence. Bennett's obligation to acquire the City Sale Property and the City's obligations to convey the City Sale Property to Bennett are contingent upon Bennett determining, in the exercise of its sole and absolute discretion, that it is satisfied with its due diligence of all aspects of the City Sale Property ("Bennett Due Diligence.Contingency"). b. Property Documents. Within ten business days after the Execution Date, the City shall provide to Bennett copies of any and all information regarding the City Sale Property in the City's possession or control, including but not limited to the following: soil reports, environmental or hazardous waste studies, engineering studies or any other studies or reports relating to the physical condition of the property or any agreements relating to the physical condition or use and development of the City Sale Property, if any("City Sale Property Documents"). c. Right of Access. Bennett and its agents, employees and designees shall be afforded reasonable access and entry onto the City Sale Property during the Due Diligence Period to conduct such studies, tests, inspections and other investigations as determined by Bennett in its sole and absolute discretion in order to fully investigate the City Sale Property. All such studies, tests, inspections and other investigations shall occur at Bennett's sole cost and expense. Bennett shall provide the City with at least two business days' advance written notice prior to entering upon the City Sale Property for such purposes. Bennett shall indemnify, defend and hold the City harmless from any claim, liability, loss or expense asserted against the City or the City Sale Property in connection with Bennett's or its agents', employees' and designees' entry on the City Sale Property for such purposes, and, so long as this Agreement has not been terminated by Bennett due to the City's nonperformance, Bennett shall provide the City, at no cost to the City, copies of all reports issued in connection with such studies, tests, inspections and/or other investigations conducted by Bennett on the City Sale Property. d. Due Diligence Period. Bennett shall have 30 days from the Execution Date ("Bennett Due Diligence Period") within which to determine Bennett's satisfaction in its sole and absolute discretion with the Bennett Due Diligence Contingency. If Bennett is not satisfied with the Bennett Due Diligence Contingency within the Bennett Due Diligence Period, Bennett may terminate this Agreement by delivering written notice of such termination to the City on or before the expiration of the Bennett Due Diligence Period, in which case all of the Parties' rights and obligations Moorpark-Bennett Exchange Agreement Page 12 of 29 1549231v2 15 hereunder (other than those which are intended to survive such termination by the express terms hereof) shall terminate as well. Upon such termination, each party shall promptly take any and all actions necessary to cancel Escrow and to cause any documents and monies deposited therein to be returned to the depositing party. If Bennett does not provide written notice of termination of this Agreement within the Bennett Due Diligence Period, the Bennett Due Diligence Contingency shall be deemed • to have been satisfied and waived, and this Agreement shall continue in full force and effect. e. Condition of the City Sale Property. The satisfaction and waiver of the Bennett Due Diligence Contingency shall constitute Bennett's determination that it is satisfied with its investigation of the condition of the City Sale Property and all material facts bearing on its acquisition of the City Sale Property. Except for the City's express representations and warranties contained in this Agreement, Bennett will acquire the City Sale Property"AS IS", with any and all faults and defects. 12. City's Conditions Precedent and Termination Right. a. City's Conditions Precedent. The Close of Escrow and City's obligation to consummate the transaction contemplated by this Agreement are subject to the timely satisfaction or written waiver of the following conditions precedent (collectively, "City's Contingencies"), which are for City's benefit only. Due Diligence Contingency. The City's Due Diligence Contingency has been satisfied or waived. ii. Title Policy. On or before the Close of Escrow, the Title Company shall, upon payment of the Title Company's regularly scheduled premium, have agreed to issue to City a CLTA standard coverage owner's policy of title insurance naming City as the insured (such policy being referred to herein as the "City's Title Policy") in the amount of the purchase price as noted in Section 2.a.ii showing fee title to the approximate 7,146 square foot portion of the Bennett Sale Properties described on Exhibit "A" and depicted on Exhibit "C" to Attachment 3 to this Agreement vested solely in the City and subject only to the Permitted Title Exceptions and matters affecting the Bennett Sale Properties created by or approved by the City. iii. No Changes. As of the Close of Escrow, the physical condition of the Bennett Property shall be substantially the same as the condition existing as of the expiration of the City Due Diligence Period. iv, Representations and Warranties. All representations and warranties of Bennett contained in this Agreement shall be materially true and correct as of the date made and as of the Close of Escrow with the same effect as if those representations and warranties were made at and as of the Close of Escrow. Moorpark-Bennett Exchange Agreement Page 13 of 29 1549231v2 16 v. No Default. As of the Close of Escrow, Bennett shall not be in Default (as defined below). b. Termination Right. Should any of City's Contingencies not be met, City may, by written notice to Bennett, terminate this Agreement. in the event that this Agreement is so terminated, any escrow, title or other cancellation fees shall be shared equally by City and Bennett unless Bennett is in default hereunder, in which case Bennett shall pay all such fees. c. Waiver. The City may waive any of City's Contingencies. 13. Bennett's Conditions Precedent and Termination Right. a. Bennett's Conditions Precedent. The Close of Escrow and Bennett's obligation to consummate the transaction contemplated by this Agreement are subject to the timely satisfaction or written waiver of the following conditions precedent (collectively, "Bennett's Contingencies"), which are for Bennett's benefit only. i. Due Diligence Contingency. Bennett's Due Diligence Contingency has been satisfied or waived. ii. Title Policy. On or before the Close of Escrow, the Title , Company shall, upon payment of the Title Company's regularly scheduled premium, have agreed to issue to Bennett an ALTA standard coverage owner's policy of title insurance naming Bennett, as the insured (such policy being referred to herein as "Bennett's Title Policy) in the amount of the purchase price as noted in Section 2.b.ii showing fee title to the approximate 10,850 square foot City Sale Property described on Exhibit "A" and depicted on Exhibit "C" to Attachment 2 to this Agreement vested solely in Bennett, subject only to the reservation in favor of the City of the approximate 5,265 square foot temporary construction easement described on Exhibit "B"to Attachment 2, Permitted Title Exceptions and matters affecting the City Sale Property created by or approved by Bennett. iii. No Changes. As of the Close of Escrow, the physical condition of the City Sale Property shall be substantially the same as the condition existing as of the expiration of the Bennett Due Diligence Period. iv. Representations and Warranties. All representations and warranties of City contained in this Agreement shall be materially true and correct as of the date made and as of the Close of Escrow with the same effect as if those representations and warranties were made at and as Of the Close of Escrow. v. No Default. As of the Close of Escrow, City shall not be in Default. b. Termination Right. Should any of Bennett's Contingencies not be met, Bennett may, by written notice to City, terminate this Agreement. In the event that Moorpark-Bennett Exchange Agreement Page 14 of 29 1549231v2 17 this Agreement is so terminated, any escrow, title or other cancellation fees shall be shared equally by City and Bennett unless City is in default hereunder, in which case City shall pay all such fees. c. Waiver. Bennett may waive any of Bennett's Contingencies. 14. Costs and Expenses. a. City's Costs. If the Close of Escrow is consummated, then City shall bear the following costs and expenses: (i) the Escrow Holder's fee; (ii) the cost of the City's Title Policy and Bennett's Title Policy; (iii) all document recording fees; (iv) the cost of all endorsements to City's Title Policy; (v) City's share of all charges prorated under this Agreement; and (vi) all documentary transfer taxes (collectively, "City's Costs"). b. Bennett's Costs. Subject to the provisions of Section 14.a. above, if the Close of Escrow is consummated, then Bennett shall bear the following costs and expenses: (i) the cost of all endorsements to Bennett's Title Policy; and (ii) Bennett's share of all charges prorated under this Agreement (collectively, "Bennett's Costs"). c. Generally. If, through no fault of either City or Bennett, the Close of Escrow fails to take place, City and Bennett shall share equally all of Escrow Holder's fees and charges; provided, however, that if the Close of Escrow fails to occur as the result of the Default of either party, then such defaulting party shall bear all Escrow Holder's fees and expenses. Each party shall bear the costs of its own attorneys and consultants in connection with the negotiation and preparation of this Agreement and the consummation of the Close of Escrow. Except as set forth in this Section 14, all other costs and expenses shall be allocated between City and Bennett in accordance with the customary practice of the County of Ventura, California. The items provided in this Section 14.c, are hereinafter referred to as "General Expenses." 15. Prorations. Property taxes and assessments will be prorated as of the Close of Escrow based on a 30 day month and 360 day year. Bennett is solely responsible for applying to the County Tax Collector of the County of Ventura for any refund of taxes to which Bennett may be entitled in connection with Bennett's payment of taxes on the Bennett Sale Properties. 16. Procedure for Close of Escrow. When the Title Company is ready to issue City's Title Policy and Bennett's Title Policy and all required documents and funds have been deposited with Escrow Holder, Escrow Holder shall immediately close Escrow in the manner and order provided below. a. Payment from Funds Deposited by City into Escrow to Clear Monetary Encumbrances on Bennett Sale Properties. Escrow Holder will use the proceeds deposited in Escrow by the City to obtain a partial reconveyance or subordination of any monetary liens or deeds of trust encumbering the Bennett Sale Moorpark-Bennett Exchange Agreement Page 15 of 29 1549231v2 18 Properties so that the City's fee interest in the approximate 7,146 square foot area described on Exhibit "A" and depicted on Exhibit"C"to Attachment 3 is free and clear of monetary liens and encumbrances as at the Close of Escrow. Escrow Holder will provide the City and Bennett written confirmation of the funds required to clear the monetary encumbrances prior to disbursing any such proceeds to the holder(s) of the monetary liens encumbering the Bennett Sale Properties, including but not limited to any bond demands and delinquent taxes due in any year except the year in which this escrow closes, together with penalties and interest thereon, and/or delinquent and unpaid non-delinquent assessments which have become a lien at the close of escrow. b. Payment from Funds Deposited by Bennett into Escrow to Clear Monetary Encumbrances on City Sale Property. Escrow Holder will use the proceeds deposited in Escrow by Bennett to obtain a partial reconveyance or subordination of any monetary liens or deeds of trust encumbering the City Sale Property so that Bennett's fee interest in the approximate 10,850 square foot area described on Exhibit "A" and depicted on Exhibit "C" to Attachment 2 is free and clear of monetary liens and encumbrances at the Close of Escrow. Escrow Holder will provide the City and Bennett written confirmation of the funds required to clear the monetary encumbrances prior to disbursing any such proceeds to the holder(s) of the monetary liens encumbering the City Sale Property, including but not limited to any bond demands and delinquent taxes due in any year except the year in which this escrow closes, together with penalties and interest thereon, and/or delinquent and unpaid non-delinquent assessments which have become a lien at the Close of Escrow. c. Recording. Escrow Holder shall cause the City Deed, the Bennett Deed, the Bennett Grant of Temporary Construction Easement and any other documents that the Parties may mutually direct to be recorded pursuant to applicable law in the Official Records of the County of Ventura, California, and obtain conformed copies thereof for distribution to City and Bennett. d. Disburse Funds. Escrow Holder shall debit or credit (as provided herein) all City's Costs, Bennett's Costs and General Expenses and disburse funds, if any, to the party entitled thereto. e. Documents to City. Escrow Holder shall deliver to City the original Bennett FIRPTA Certificate and Bennett Withholding, and conformed copies of the Bennett Grant Deed, the Bennett Grant of Temporary Construction Easement and the City Deed. f. Documents to Bennett. Escrow Holder shall deliver to Bennett the original City FIRPTA Certificate and City Withholding, and conformed copies of the Bennett Grant Deed, the Bennett Grant of Temporary Construction Easement and the City Deed. g. Title Policies. Escrow Holder shall cause the Title Company to issue City's Title Policy to City and Bennett's Title Policy to Bennett. Moorpark-Bennett Exchange Agreement Page 16 of 29 1549231v2 19 h. Closing Statement. Escrow Holder shall forward to both City and Bennett a separate accounting of all funds received and disbursed for each party in connection with the Close of Escrow. i. Informational Reports. Escrow Holder shall file any information reports required by Internal Revenue Code Section 6O45(e), as amended. 17. Representations and Warranties. a. City's Representations and Warranties. In consideration of Bennett entering into this Agreement and as an inducement to Bennett to acquire the City Property, City makes the following representations and warranties as of the date this Agreement is fully executed by the Parties and at and as of the Close of Escrow, each of which is material and is being relied upon by Bennett. i. Power. City has the legal power, right and authority to enter into this Agreement and the instruments attached hereto and referenced herein, and to consummate the transaction contemplated hereby. ii. Requisite Action. All requisite action has been taken by City in connection with entering into this Agreement and the instruments referenced herein; and, by the Close of Escrow, all such necessary action will have been taken to authorize the consummation of the transaction contemplated hereby. By the Close of Escrow no additional consent of any administrative body, governmental authority or other party shall be required for City to consummate the transaction contemplated by this Agreement. • iii. Individual Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of City have the legal power, right and actual authority to bind City to the terms and conditions hereof and thereof. iv. No Conflict. Neither the execution or delivery of this Agreement or the documents or instruments referenced herein, nor incurring the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement or the documents or instruments referenced herein or therein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, lease or other agreement or instrument to which any of the City is a party or that affect the City Sale Property. v. Property Documents. All of the copies of the City Sale Property Documents delivered to Bennett are true and complete copies of their respective originals. Moorpark-Bennett Exchange Agreement Page 17 of 29 1549231v2 20 vi. Compliance with Laws and Codes. City has not received any written notice of any current alleged violations of any law, statute or regulation at or about the City Sale Property. vii. Environmental. Except as described in the City Sale Property Documents, or as otherwise disclosed in writing to Bennett prior to the end of the Due Diligence Period, to City's actual knowledge, City has received no written notice of any Hazardous Materials (as defined below in Section 22) located on or under the City Sale Property. viii. No Defaults. City has received no written notice of default under any of the City Sale Property Documents or City Title Matters, nor has City received written notice of any event that with notice or the passage of time, or both, would constitute a default thereunder. ix. No Liens or Prior Transfers. Except for the Settlement Agreement described in Recital A., City has not previously assigned, transferred, conveyed or encumbered (or entered into any agreement to do any of the foregoing) any or all of its right, title or interest in or to the City Sale Property. x. No Tax or Economic Advice. City has not received or relied on any tax or economic advice from Bennett or Bennett's Counsel with respect to the transactions contemplated by this Agreement or to the economic advisability or feasibility of such transactions. b. Bennett's Representations and Warranties. In consideration of City entering into this Agreement and as an inducement to City to acquire the Bennett Sale Properties, Bennett makes the following representations and warranties as of the Execution Date and at and as of the Close of Escrow, each of which is material and is being relied upon by City. i. Power. Bennett has the legal power, right and authority to enter into this Agreement and the instruments attached hereto and referenced herein, and to consummate the transaction contemplated hereby. ii. Requisite Action. All requisite action has been taken by Bennett in connection with entering into this Agreement and the instruments referenced herein; and, by the Close of Escrow, all such necessary action will have been taken.to authorize the consummation of the transaction contemplated hereby. By the Close of Escrow no additional consent of any individual, director, shareholder, partner, member, manager, trustee, trustor, beneficiary, creditor, investor, judicial or administrative body, governmental authority or other party shall be required for Bennett to consummate the transaction contemplated by this Agreement. iii. Individual Authority. The individuals executing this Agreement and the instruments referenced herein on behalf of Bennett have the legal Moorpark-Bennett Exchange Agreement Page 16 of 29 1549231v2 21 power, right and actual authority to bind Bennett to the terms and conditions hereof and thereof. iv. No Conflict. Neither the execution or delivery of this Agreement or the documents or instruments referenced herein, nor incurring the obligations set forth herein, nor the consummation of the transaction contemplated herein, nor compliance with the terms of this Agreement or the documents or instruments referenced herein or therein conflict with or result in the material breach of any terms, conditions or provisions of, or constitute a default under, any bond, note or other evidence of indebtedness or any contract, indenture, mortgage, deed of trust, loan, lease or other agreement or instrument to which Bennett is a party or that affect the Bennett Property. v. No Bankruptcy. No bankruptcy or other insolvency proceeding has been filed or threatened by or against Bennett. vi. Property Documents. All of the copies of the Bennett Sale Properties Documents delivered to City are true and complete copies of their respective originals. • vii. Compliance With Laws and Codes. Bennett has not received any written notice of any current alleged violations of any law, statute or regulation at or about the Bennett Sale Properties. viii. Environmental. Except as described in the Bennett Property Documents, or as otherwise disclosed in writing to City prior to the end of the City Due Diligence Period, to Bennett's actual knowledge, Bennett has received no written notice of any Hazardous Materials located on or under the Bennett Sale Properties. ix. No Defaults. Bennett has received no written notice of default under any of the Bennett Property Documents or the Bennett Title Matters, nor has Bennett received written notice of any event that with notice or the passage of time, or both, would constitute a default thereunder. x. No Liens or Prior Transfers. Bennett has not previously assigned, transferred, conveyed or encumbered (or entered into any agreement to do any of the foregoing) any or all of its right, title or interest in or to the Bennett Sale Properties. xi. No Leases. Bennett warrants that there are no oral or written leases on all or any portion of the Bennett Sale Properties. Bennett agrees to hold the City harmless and reimburse City for any and all of its losses and expenses, including, but not limited to reasonable attorney's fees, incurred by City in connection with any claims made or litigation filed against the City in connection with any such lease. Moorpark-Bennett Exchange Agreement Page 19 of 29 1549231v2 22 xii. No Tax or Economic Advice. Bennett has not received or relied on any tax or economic advice from City or City's Counsel with respect to the transactions contemplated by this Agreement or to the economic advisability or feasibility of such transactions. 18. Indemnification. City shall defend, indemnify, and hold Bennett harmless from any and all claims, damages, costs, judgments, or liability caused by City or its officers, employees or agents specifically arising from the City construction of the Project and restoration work in the areas comprising the temporary construction easements described on Exhibit "B" to Attachment 2 and Exhibit "B" to Attachment 3 to this Agreement during the term of the temporary construction easements set forth in this Agreement, the Bennett Grant of Temporary Construction Easement and in the reservation set forth in the City Grant Deed. Bennett agrees and acknowledges, however, that Bennett has expressly authorized the City to complete the work and improvements described in the Bennett Grant of Temporary Construction Easement and the reservation in the City Grant Deed. 19. As-Is Conveyance/City Sale Property. BENNETT ACKNOWLEDGES AND AGREES THAT BENNETT WILL BE CONCLUDING THE ACQUISITION OF THE CITY SALE BASED SOLELY UPON BENNETT'S INSPECTION AND INVESTIGATION OF THE CITY SALE PROPERTY, AND, THAT BENNETT WILL BE ACQUIRING THE CITY SALE PROPERTY ON AN "AS IS, WHERE IS" BASIS, WITH ALL FAULTS, LATENT AND PATENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BENNETT ACKNOWLEDGES AND AGREES THAT CITY HAS NOT MADE, IS NOT HEREBY MAKING AND CITY HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT THOSE EXPRESSLY CONTAINED IN SECTION 17.a OF THIS AGREEMENT, ON WHICH BENNETT IS RELYING AS TO ANY MATTER CONCERNING THE CITY SALE PROPERTY, INCLUDING, WITHOUT LIMITATION, MATTERS RELATING TO THE ZONING, LAND- USE OR OTHER ENTITLEMENTS, THE ENVIRONMENTAL CONDITION OF THE CITY SALE PROPERTY (INCLUDING, WITHOUT LIMITATION, THE EXISTING ENVIRONMENTAL CONDITION), AND/OR SOILS, SEISMIC, GEOTECHNICAL AND/OR OTHER MATTERS RELATING TO THE CONDITION OF THE CITY SALE PROPERTY. BENNETT ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE CITY SALE PROPERTY BY OR ON BEHALF OF CITY, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL REPORTS AND THE OTHER DOCUMENTS AND INSTRUMENTS TO BE DELIVERED TO, OR OTHERWISE MADE AVAILABLE TO, BENNETT WAS OBTAINED FROM A VARIETY OF SOURCES, THAT CITY HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, THAT ALL SUCH INFORMATION HAS BEEN AND SHALL BE PROVIDED SOLELY AS AN ACCOMMODATION TO BENNETT, THAT CITY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. AS PART OF BENNETT'S AGREEMENT TO ACQUIRE AND ACCEPT THE CITY SALE PROPERTY Moorpark-Bennett Exchange Agreement Page 20 of 29 1549231v2 23 "AS-IS, WHERE-IS," AND "WITH ALL FAULTS", AND NOT AS A LIMITATION ON SUCH AGREEMENT, BENNETT HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL CLAIMS OR RIGHTS AGAINST THE CITY PARTIES (AS HEREINAFTER DEFINED) ARISING OUT OF THE INACCURACY OR INCOMPLETENESS OF ANY MATERIALS SO FURNISHED, ARISING OUT OF OR IN CONNECTION WITH THE ENVIRONMENTAL CONDITION OF THE CITY SALE PROPERTY AND ANY AND ALL ACTUAL OR POTENTIAL CLAIMS OR RIGHTS BENNETT MIGHT HAVE REGARDING ANY FORM OF REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE, RELATING TO THE CITY SALE PROPERTY OTHER THAN IN CONNECTION WITH THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN SECTION 17.a. OF THIS AGREEMENT. SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. SUCH WAIVER INCLUDES, BUT IS NOT LIMITED TO, A WAIVER OF EXPRESS WARRANTIES, IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF HABITABILITY, STRICT LIABILITY RIGHTS, AND CLAIMS, LIABILITIES, DEMANDS OR CAUSES OF ACTION OF EVERY KIND AND TYPE, WHETHER STATUTORY, CONTRACTUAL OR UNDER TORT PRINCIPLES, AT LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, CLAIMS REGARDING DEFECTS WHICH MIGHT HAVE BEEN DISCOVERABLE, CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE, PRODUCT LIABILITY CLAIMS, PRODUCT LIABILITY TYPE CLAIMS, ALL OTHER EXISTING OR LATER CREATED OR CONCEIVED STRICT LIABILITY OR STRICT LIABILITY TYPE CLAIMS AND RIGHTS, AND ANY AND ALL CLAIMS RELATING TO THE ENVIRONMENTAL CONDITION OF THE CITY SALE PROPERTY. EFFECTIVE UPON THE CLOSE OF ESCROW,AND TO THE FULLEST EXTENT PERMITTED BY LAW, BENNETT HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS CITY AND EVERY ENTITY AFFILIATED WITH CITY AND ALL OF ITS AND THEIR RESPECTIVE PARTNERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS AND INDEPENDENT CONTRACTORS AND THE SUCCESSOR OF EACH AND EVERY ONE OF THEM (COLLECTIVELY, THE "CITY PARTIES") FROM ALL DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES WHICH BENNETT MAY SUFFER OR INCUR RELATING TO THE CITY SALE PROPERTY_ SPECIFICALLY, AND NOT BY WAY OF LIMITATION, BENNETT HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS THE CITY PARTIES FROM ALL DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES ARISING OUT OF OR OTHERWISE RELATING TO THE ENVIRONMENTAL CONDITION OF THE CITY SALE PROPERTY. AS PART OF THE PROVISIONS OF THIS SECTION, BUT NOT AS A LIMITATION THEREON, BENNETT HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND BENNETT HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAWS, RULES OR Moorpark-Bennett Exchange Agreement Page 21 of 29 1549231v2 24 REGULATIONS, INCLUDING WITHOUT LIMITATION, SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA OR ANY SIMILAR STATUTE, LAW, RULE OR REGULATION OF ANY OTHER STATE. BENNETT ACKNOWLEDGES THAT SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA PROVIDES AS FOLLOWS: "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 EXECUTION OF THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." IN THIS CONNECTION AND TO THE FULLEST EXTENT PERMITTED BY LAW, BENNETT HEREBY AGREES, REPRESENTS AND WARRANTS THAT BENNETT REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO BENNETT MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND BENNETT FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT BENNE Ei NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT THE CITY PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH MIGHT IN ANY WAY BE INCLUDED IN THE WAIVERS AND MATTERS RELEASED AS SET FORTH IN THIS SECTION. THE PROVISIONS OF THIS SECTION ARE MATERIAL AND INCLUDED AS A MATERIAL PORTION OF THE CONSIDERATION GIVEN TO CITY BY BENNETT IN EXCHANGE FOR CITY'S PERFORMANCE HEREUNDER. CITY HAS GIVEN BENNETT MATERIAL CONCESSIONS REGARDING THIS TRANSACTION IN EXCHANGE FOR BENNETT AGREEING TO THE PROVISIONS OF THIS SECTION. CITY AND BENNETT HAVE EACH INITIALED THIS SECTION TO FURTHER INDICATE THEIR AWARENESS AND ACCEPTANCE OF EACH AN RY PROVISION HEREOF. CITY ki BENNETT 20. As-Is Conveyance/Bennett Sale Properties. CITY ACKNOWLEDGES AND AGREES THAT CITY WILL BE CONCLUDING THE PURCHASE OF THE BENNETT SALE PROPERTIES BASED SOLELY UPON CITY'S INSPECTION AND INVESTIGATION OF THE BENNETT SALE PROPERTIES, AND THAT CITY WILL BE ACQUIRING THE BENNETT SALE PROPERTIES ON AN "AS IS, WHERE IS" BASIS, WITH ALL FAULTS, LATENT AND PATENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CITY ACKNOWLEDGES AND AGREES THAT BENNETT HAS NOT MADE, IS NOT HEREBY MAKING AND BENNETT HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY REPRESENTATIONS OR WARRANTIES OF ANY Moorpark-Bennett Exchange Agreement Page 22 of 29 1549231 v2 25 KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, EXCEPT THOSE EXPRESSLY CONTAINED IN SECTION 17.b. OF THIS AGREEMENT, ON WHICH CITY IS RELYING AS TO ANY MATTER CONCERNING THE BENNETT SALE PROPERTIES, INCLUDING, WITHOUT LIMITATION, MATTERS RELATING TO THE ZONING, LAND-USE OR OTHER ENTITLEMENTS, THE ENVIRONMENTAL CONDITION OF THE BENNETT SALE PROPERTIES (INCLUDING, WITHOUT LIMITATION, THE EXISTING ENVIRONMENTAL CONDITION), AND/OR SOILS, SEISMIC, GEOTECHNICAL AND/OR OTHER MATTERS RELATING TO THE CONDITION OF THE BENNETT SALE PROPERTIES. CITY ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE BENNE! i SALE PROPERTIES BY OR ON BEHALF OF BENNETT, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL REPORTS AND THE OTHER DOCUMENTS AND INSTRUMENTS TO BE DELIVERED TO, OR OTHERWISE MADE AVAILABLE TO, CITY WAS OBTAINED FROM A VARIETY OF SOURCES, THAT BENNETT HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, THAT ALL SUCH INFORMATION HAS BEEN AND SHALL BE PROVIDED SOLELY AS AN ACCOMMODATION TO CITY, THAT BENNETT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, TRUTHFULNESS OR COMPLETENESS OF SUCH INFORMATION. AS PART OF CITY'S AGREEMENT TO ACQUIRE AND ACCEPT THE BENNETT SALE PROPERTIES "AS-IS, WHERE-IS," AND "WITH ALL FAULTS", AND NOT AS A LIMITATION ON SUCH AGREEMENT, CITY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL CLAIMS OR RIGHTS AGAINST THE BENNETT PARTIES (AS HEREINAFTER DEFINED)ARISING OUT OF THE INACCURACY OR INCOMPLETENESS OF ANY MATERIALS SO FURNISHED, ARISING OUT OF OR IN CONNECTION WITH THE ENVIRONMENTAL CONDITION OF THE BENNETT SALE PROPERTIES AND ANY AND ALL ACTUAL OR POTENTIAL CLAIMS OR RIGHTS CITY MIGHT HAVE REGARDING ANY FORM OF REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR TYPE, RELATING TO THE BENNETT SALE PROPERTIES OTHER THAN IN CONNECTION WITH THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY CONTAINED IN SECTION 17.b. OF THIS AGREEMENT. SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL AND UNLIMITED IN ANY WAY. SUCH WAIVER INCLUDES, BUT IS NOT LIMITED TO, A WAIVER OF EXPRESS WARRANTIES, IMPLIED WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR USE, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF HABITABILITY, STRICT LIABILITY RIGHTS, AND CLAIMS, LIABILITIES, DEMANDS OR CAUSES OF ACTION OF EVERY KIND AND TYPE, WHETHER STATUTORY, CONTRACTUAL OR UNDER TORT PRINCIPLES, AT LAW OR IN EQUITY, INCLUDING, BUT NOT LIMITED TO, CLAIMS REGARDING DEFECTS WHICH MIGHT HAVE BEEN DISCOVERABLE, CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE, PRODUCT LIABILITY CLAIMS, PRODUCT LIABILITY TYPE CLAIMS, ALL OTHER EXISTING OR LATER CREATED OR CONCEIVED STRICT LIABILITY OR STRICT LIABILITY TYPE CLAIMS AND RIGHTS, AND ANY AND ALL CLAIMS RELATING TO THE ENVIRONMENTAL CONDITION OF THE BENNETT Moorpark-Bennett Exchange Agreement Page 23 of 29 1549231v2 26 SALE PROPERTIES. EFFECTIVE UPON THE CLOSE OF ESCROW, AND TO THE FULLEST EXTENT PERMITTED BY LAW, CITY HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS BENNETT AND EVERY ENTITY AFFILIATED WITH BENNETT AND ALL OF ITS AND THEIR RESPECTIVE PARTNERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, ATTORNEYS AND INDEPENDENT CONTRACTORS AND THE SUCCESSOR OF EACH AND EVERY ONE OF THEM (COLLECTIVELY, THE "BENNETT PARTIES") FROM ALL DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES WHICH CITY MAY SUFFER OR INCUR RELATING TO THE BENNETT SALE PROPERTIES. SPECIFICALLY, AND NOT BY WAY OF LIMITATION, CITY HEREBY RELEASES, DISCHARGES AND FOREVER ACQUITS THE BENNETT PARTIES FROM ALL DEMANDS, CLAIMS, LIABILITIES, OBLIGATIONS, COSTS AND EXPENSES ARISING OUT OF OR OTHERWISE RELATING TO THE ENVIRONMENTAL CONDITION OF THE BENNETT SALE PROPERTIES. AS PART OF THE PROVISIONS OF THIS SECTION, BUT NOT AS A LIMITATION THEREON, CITY HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED, AND CITY HEREBY WAIVES ANY AND ALL RIGHTS AND BENEFITS WHICH IT NOW HAS, OR IN THE FUTURE MAY HAVE CONFERRED UPON IT, BY VIRTUE OF THE PROVISIONS OF FEDERAL, STATE OR LOCAL LAWS, RULES OR REGULATIONS, INCLUDING WITHOUT LIMITATION, SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA OR ANY SIMILAR STATUTE, LAW, RULE OR REGULATION OF ANY OTHER STATE. CITY ACKNOWLEDGES THAT SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA PROVIDES AS FOLLOWS: "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 EXECUTION OF THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." IN THIS CONNECTION AND TO THE FULLEST EXTENT PERMITTED BY LAW, CITY HEREBY AGREES, REPRESENTS AND WARRANTS THAT CITY REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO CITY MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND CITY FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT CITY NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND .ACQUIT THE BENNETT PARTIES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH MIGHT IN ANY WAY BE INCLUDED IN THE WAIVERS AND MATTERS RELEASED AS SET FORTH IN THIS SECTION. THE Moorpark-Bennett Exchange Agreement Page 24 of 29 I549231v2 27 PROVISIONS OF THIS SECTION ARE MATERIAL AND INCLUDED AS A MATERIAL PORTION OF THE CONSIDERATION GIVEN TO BENNE 1 BY CITY IN EXCHANGE FOR BENNETT'S PERFORMANCE HEREUNDER. BENNETT HAS GIVEN CITY MATERIAL CONCESSIONS REGARDING THIS TRANSACTION IN EXCHANGE FOR CITY AGREEING TO THE PROVISIONS OF THIS SECTION. BENNETT AND CITY HAVE EACH INITIALED THIS SECTION TO FURTHER INDICATE THEIR AWARENESS ACC PTANCE OF EACH AND EVERY PROVISION HEREOF. d/z.: BENNETT CITY 21. Relocation Assistance and Loss of Goodwill. a. It is understood and agreed between Bennett and the City that the conveyance of the City Sale Property to Bennett and consideration set forth in this Agreement and in the Settlement Agreement, represents an all-inclusive settlement and is full and complete payment of compensation for the City's acquisition of the Bennett Sale Properties and includes and satisfies any and all other payments, if any, that the law may require the City to pay to Bennett arising out of the City's acquisition of the Bennett Sale Properties, including without limitation relocation assistance and benefits, claims for severance and other damages, attorney's fees, interest, expenses of litigation, expert's fees, precondemnation damages, inverse condemnation, loss of business goodwill under the Eminent Domain Law, Code of Civil Procedure Section 1263.510, and all costs and expenses whatever in connection therewith. b. It is further understood that based on the acknowledgment of the consideration described in this Agreement, Bennett covenants and agrees to take full responsibility for promptly moving all of its personal property, if any, from the Bennett Sale Properties. c. It is further understood that the City will have no further obligation to Bennett under any federal or state relocation laws or regulations, including without limitation, the Uniform Relocation Assistance and Real Subject Property Acquisition Policies Act of 1970 (42 U.S.C. 4601 et seq.), if applicable, or under Title 1, Division 7, Chapter 1 of the Government Code of the State of California (Section 7260 et seq.), or the Relocation Assistance and Real Subject Property Acquisition Guidelines (Chapter 6 of Title 25 of the California Code of Regulations). 22. Hazardous Materials. For the purposes of this Agreement, "Hazardous Materials" shall mean any substance, material or waste which is or becomes, regulated by any local governmental authority, the State of California or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste," "acutely hazardous waste," "extremely hazardous waste," or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section Moorpark-Bennett Exchange Agreement Page 25 of 29 1549231 v2 28 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter- Presley-Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Code of Regulations, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. Section 1317), (x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act(42 U.S.C. Sections 6901 et seq.), (xi) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Sections 9601 et seq.), (xii) Methyl-Tertiary Butyl Ether, or (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation, generation, collection, storage, handling, treatment or disposal, or is defined as "hazardous" or harmful to the environment. 23. Notices. All notices and demands will be given in writing by certified mail, postage prepaid, and'return receipt requested or by Federal Express. Notices will be considered given upon the earlier of (a) two business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested, or (b) one business day following deposit with Federal Express. The Parties will address such notices as provided below or as may be amended by written notice: CITY: City of Moorpark Attention: Steven Kueny, City Manager 799 Moorpark Avenue Moorpark, CA 93021 COPY TO: Richards, Watson &Gershon Attention: Kevin Ennis, City Attorney 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 BENNETT: The Bennett Partnership Attention: Michael R. Bennett, Partner 2419 Palma Drive Ventura, California 93003 ESCROW Camarillo Escrow Company HOLDER: 445 Rosewood Avenue, Suite L Camarillo, California, 93010 Moorpark-Bennett Exchange Agreement Page 26 of 29 1549231 v2 29 24. Further Documents. Each party will, wherever and as often as it shall be requested by the other party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further instruments and documents, including further escrow instructions, as may reasonably be necessary in order to complete the sale, conveyance, and transfer herein provided and to do any and all other acts and to execute, acknowledge, and deliver any and all documents as may be requested in order to carry out the intent and purpose of this Agreement. 25. Miscellaneous. a. Authority to Bind Parties and Execute Agreement. The City and Bennett represent and warrant to one another that this Agreement constitutes a binding obligation on each of them and that the person executing this Agreement is authorized to execute the Agreement on behalf of the respective party and to bind it. b. Brokers. Each of the Parties hereby represents and warrants to the other that it has dealt with no broker or finder in connection with this transaction. Each party hereto agrees to indemnify, defend and hold harmless the other party from and against any and all losses, liens, claims, judgments, liabilities, costs, expense or damages (including reasonable attorneys' fees and court costs) of any kind and character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by such party or on its behalf with any broker or finder in connection with this Agreement or the transactions contemplated by this.Agreement. The foregoing indemnity will survive the Close of Escrow or the termination of this Agreement and shall not be limited by any provision of this Agreement. c. Governing Law. This Agreement is deemed to have been prepared by each of the Parties hereto, and any uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if such uncertainty or ambiguity exists, shall be interpreted according to the applicable rules of interpretation of contracts under the laws of the State of California, and not the substantive law of another state or the United States or federal common law. This Agreement shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the Parties shall be governed by, and construed and enforced in accordance with, the laws of the State of California. d. Amendment or Modification. This may be modified or amended only by a writing executed by all Parties to this Agreement. e. Partial Invalidity/Severability. Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application of such provision to any person or circumstance is, to any extent, deemed to be invalid or unenforceable, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or Moorpark-Bennett Exchange Agreement Page 27 of 29 1549231v2 30 unenforceability, unless such provision or such application of such provision is essential to this Agreement. f. Legal Representation. The Parties, and each of them, acknowledge that in connection with the negotiation and execution of this Agreement, they have each been represented by independent counsel of their own choosing and the Parties executed the Agreement after review by such independent counsel, or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of any of the Parties not so represented; and, prior to executing this Agreement, each of the Parties has had an adequate opportunity to conduct an independent investigation of all the facts and circumstances with respect to the matters which are the subject of this Agreement g. Counterparts, Facsimile & Electronic Signatures. This Agreement may be executed in whole or in counterparts which together shall constitute the entire Agreement. Facsimile or electronic signatures/counterparts to this Agreement shall be effective as if the original signed counterpart were delivered. h. Fees and Costs. Each of the Parties shall bear its own attorneys' fees and costs, including, but not limited to expert fees, incurred in connection with negotiating the matters described in this Agreement. i. Settlement Agreement. Except for the modifications to the Settlement Agreement set forth in this Agreement, this Agreement is not intended to supersede the Settlement Agreement. The Parties are responsible for any outstanding obligations set forth in the Settlement Agreement. j. Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the heirs, executors, administrators, successors and assigns of the Parties hereto. k. Remedies Not Exclusive and Waivers. No remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other remedy and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies will not constitute a waiver of the right to pursue other available remedies. I. Attorneys' Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party its reasonable attorney's fees and other costs incurred in connection with such action. Moorpark-Bennett Exchange Agreement Page 28 of 29 1549231v2 31 The provisions of the Agreement shall survive the granting and recordation of the interests described herein. No obligation other than those set forth herein and in the Settlement Agreement will be recognized. Dated: 4z/ ( 5 Dated: 5/08//S- THE D81STHE BENNETT PARTNERSHIP, CITY OF MOORPARK, a general partnership a municipal corporation By: IA/ill/64(4 •MichaeeBy: ven ueny, City nager ATTEST: By: e__„.i Maureen Benson, City Clerk Approved as to form: Richards, Watson & Gershon By: 14.ws-7 E cy,„g4.; Kevin Ennis, City Attorney 11141149414 Moorpark-Sennett Exchange Agreement Page 29 of 29 1549231v2 32 CC ATTACHMENT 2 MUTUAL RELEASE AND PRE-LITIGATION SETTLEMENT AGREEMENT BETWEEN THE BENNETT PARTNERSHIP AND THE CITY OF MOORPARK This MUTUAL RELEASE AND PRE-LITIGATION SETTLEMENT AGREEMENT ("Agreement") is made and entered into on this day of February, 2018, by and between the CITY OF MOORPARK, a municipal corporation ("CITY"), on the one hand, and THE BENNETT PARTNERSHIP, A GENERAL PARTNERSHIP ("BENNETT"), on the other hand, regarding the use of a 2.65-acre property at 14110 Princeton Avenue. RECITALS A. The CITY and Manuel Asadurian, Jr. ("ASADURIAN") entered into a Settlement Agreement on October 25, 2006 ("2006 Settlement Agreement") in connection with the City's construction of a street widening and improvement project along Princeton Avenue. B. On October 26, 2006, BENNETT purchased from ASADURIAN that certain real property ("PROPERTY") at 14110 Princeton Avenue, also identified as APN 513-0-022-015, subject to the 2006 Settlement Agreement. C. BENNETT did not fulfill the terms of the 2006 Settlement Agreement, including completion of the terms within the specified deadlines. Therefore, on May 8, 2015, CITY and BENNETT entered in to an Exchange Agreement and Mutual Escrow Instructions ("EXCHANGE AGREEMENT") to effectuate the transfer to the CITY of road right of way in fee, landscape easement, access and maintenance easement, or temporary construction easement from PROPERTY owned by BENNETT and to transfer to BENNETT portions of adjacent real property owned by CITY. D. In addition, on April 26, 2017, CITY and BENNETT entered into a License Agreement for Use of City-Owned Property for Access ("LICENSE AGREEMENT") that authorized BENNETT to use certain City-owned Property and that certain real property known as "La Falda Avenue" described in the License Agreement to provide access to the 10,850 square foot real property commonly known as Lots 52 and 53 purchased from the CITY by BENNETT. E. The conveyance documents for the exchange of the CITY and BENNETT properties referenced in the EXCHANGE AGREEMENT were recorded on April 26, 2017, including Grant Deeds between the CITY and BENNETT and a Temporary Construction Easement granted by BENNETT to the City in connection with the widening of Princeton Avenue. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 1 of 10 20180220 Draft 33 F. BENNETT has not fulfilled some of the terms of the EXCHANGE AGREEMENT, including the removal of unpermitted uses from the PROPERTY and the obtaining of an Industrial Planned Development (IPD) Permit for the PROPERTY. G. On September 18, 2017, BENNETT filed an application with CITY for IPD Permit No. 2017-02. These plans include the use of the PROPERTY for a Fence Factory business which BENNETT owns and operates and is proposing to relocate from its current location in Agoura Hills. This application was rejected by CITY as incomplete on October 18, 2017 due to municipal code violations relating to unpermitted uses on the PROPERTY and incomplete plans. H. BENNETT has initiated the removal of unpermitted uses from the PROPERTY; however, at least one tenant with an unpermitted use has not cooperated in leaving the site. The unpermitted use of this PROPERTY remains as the only outstanding item that makes the application for IPD Permit No. 2017-02 incomplete. I. BENNETT has requested to be allowed to immediately begin moving the Fence Factory business on to the PROPERTY as the business must be removed from the Agoura Hills location by April 30, 2018. J. CITY is unable to process IPD Permit application in time to allow Fence Factory to move on to the site and open for business by April 30, 2018 due to the unpermitted business on the PROPERTY. K. The purpose of this Agreement is to set forth the terms under which CITY will 1) process IPD Permit No. 2017-02 in advance of the unpermitted business leaving the PROPERTY and 2) process a Temporary Use Permit ("TUP") to allow Fence Factory to relocate onto the property at 14110 Princeton Avenue on a temporary basis in advance of obtaining IPD Permit No. 2017-02. AGREEMENT For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and in consideration of these promises, agreements, representations, warranties, covenants, and conditions contained herein, CITY and BENNETT (and each of them) hereby agree as follows: 1. Deposit by BENNETT to CITY BENNETT agrees to deposit with CITY the sum of ONE-HUNDRED TWENTY- THOUSAND DOLLARS ($120,000.00) in cash or cashier's check by February 28, 2018 as security for compliance with the terms of this Agreement ("DEPOSIT PAYMENT"), which will be held and then expended by CITY as provided in this Agreement. 2. Conditional Return of Portion of DEPOSIT PAYMENT by CITY to BENNETT upon Completion of Obligations of BENNETT under this Agreement Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 2 of 10 20180220 Draft 34 CITY shall make a partial return of the DEPOSIT PAYMENT to BENNETT in the amount of ONE-HUNDRED THOUSAND DOLLARS ($100,000.00) ("CONDITIONAL PAYMENT") within sixty (60) days of BENNETTs completion at its sole cost and expense of all of the tasks outlined in Exhibit A of this agreement to the satisfaction of the City Manager. The remaining $20,000.00 of the DEPOSIT PAYMENT shall be retained by CITY to reimburse the City for its costs and expenses in entering into this Agreement, monitoring its compliance, and implementing the terms of this Agreement. If the tasks outlined in Exhibit A of this Agreement are not completed to the satisfaction of the City Manager IN FULL by December 31, 2018, CITY shall have no obligation to make the CONDITIONAL PAYMENT. BENNETT, FENCE FACTORY and any other entity on the property shall terminate all uses, vehicle and material storage within thirty (30) days of decision on IPD Permit No. 2017-02 if IPD Permit denied. BENNETT hereby expressly agrees that it will forfeit any claim to any portion of the CONDITIONAL PAYMENT should it fail to satisfy all of the foregoing conditions IN FULL by December 31, 2018, and that time is of the essence. BENNETT understands and agrees that the full amount of the CONDITIONAL PAYMENT shall be ONE-HUNDRED THOUSAND DOLLARS ($100,000.00), that no interest shall accrue on such sum, and that BENNETT shall have no claim on the remaining $20,000.00, whether or not IPD Permit No. 2017-02 is approved or disapproved. 3. Processing by CITY of TUP to Allow Fence Factory to Occupy PROPERTY and Operate Business Upon receipt of DEPOSIT PAYMENT identified in Section 1, CITY agrees to accept a TUP Application by BENNETT for Fence Factory to occupy PROPERTY and operate business of sales and equipment rentals and further agrees to promptly process this application and issue a decision that would allow for Fence Factory to operate under the conditions of the TUP through October 5, 2018 or until a decision is effective on IPD Permit No. 2017-02, whichever comes first. BENNETT hereby expressly agrees that it will forfeit any claim to any portion of the CONDITIONAL PAYMENT should it fail to comply with all of the conditions of the TUP while it is in effect. 4. Processing by CITY of IPD Permit No. 2017-02 Upon receipt of DEPOSIT PAYMENT identified in Section 1, CITY agrees to promptly process, hold hearings before the Planning Commission and City Council, and reach a final decision on the application for IPD Permit No. 2017-02 no later than October 15, 2018. 5. Mutual Release (a) Subject to the performance of the provisions of this Agreement, and except for enforcement of the obligations and undertakings set forth in this Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 3 of 10 20180220 Draft 35 Agreement, the 2006 Settlement Agreement, the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, and IPD Permit No. 2017-02, if approved, the CITY, hereby releases, and discharges BENNETT, and its subsidiary and affiliated corporations, and its predecessors and successors-in-interest, affiliates, officers, lessees, operators, retailers, franchisees, dealers, distributors, members, directors, employees, partners, shareholders, agents, consultants, attorneys and insurers, past, present and future (collectively, the "BENNETT RELEASED PARTIES"), for and from any and all claims, causes of action, expenses, liabilities, demands, obligations, indemnities, liens, contribution or subrogation rights, damages, loss of income, loss of property use, diminution in property value, assessments, fines, penalties, emotional distress, exemplary damages, judgments, wrongful death, bodily injury, personal injury, property damage, debts, interest, attorneys' fees, expert witness fees, consultants' fees, costs, investigations, or equitable relief, whether past, present or future, known or unknown, (collectively, "CLAIMS"), arising out of or in any way related to unpermitted uses of the property described in this Agreement, which include truck, equipment, and material storage by business tenants on the PROPERTY (collectively, the "RELEASED MATTERS"). Nothing herein shall be construed as a waiver of the City's rights to enforce any violation of any law, municipal code, municipal regulation or policy, on the Bennett Property that is not expressly identified in this Agreement as the "RELEASED MATTERS." (b) Subject to the performance of the provisions of this Agreement, and except for the enforcement of the obligations and undertakings set forth in this Agreement, the 2006 Settlement Agreement, the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, and IPD Permit No. 2017-02, if approved, BENNETT, on behalf of itself and its subsidiary and affiliated corporations, and their predecessors and successors-in-interest, affiliates, officers, lessees, operators, retailers, franchisees, dealers, distributors, members, directors, employees, partners, shareholders, agents, consultants, attorneys and insurers, hereby forever release, discharge and covenant not to sue the CITY, its officers, administrators, employees, agents, consultants, representatives, insurers, attorneys and assigns, past, present and future (collectively, the "CITY RELEASED PARTIES"), for and from any and all claims, causes of action, expenses, liabilities, demands, obligations, indemnities, liens, contribution or subrogation rights, damages, loss of income, loss of property use, diminution in property value, assessments, fines, penalties, emotional distress, exemplary damages, judgments, wrongful death, bodily injury, personal injury, property damage, debts, interest, attorneys' fees, expert witness fees, consultants' fees, costs, investigations, or equitable relief, whether past, present or future, known or unknown, (collectively, "CLAIMS"), arising out of or in any way related to unpermitted uses of the property described in this Agreement, which include truck, equipment, and material storage by business tenants on the PROPERTY (collectively, the "RELEASED MATTERS"). Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 4 of 10 20180220 Draft 36 (c) In connection with the RELEASED MATTERS, each Party specifically waives any benefit of the provisions of Section 1542 of the California Civil Code, which provides as follows: "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." (d) Each Party (and each of them) hereby knowingly and voluntarily waives any right that he/she/it may have under Section 1542 of the California Civil Code or any similar provision of the statutory or non-statutory law of any other jurisdiction, to the full extent that he/she/it may lawfully waive all such rights and benefits pertaining to the RELEASED MATTERS. In connection with such waiver and relinquishment, each Party acknowledges that he/she/it is aware that said Parties or their attorneys, consultants, or accountants may hereafter discover claims, facts, damages or injuries in addition to or different from those which they now know or believe to exist with respect to the subject matter of this Agreement or the other Parties hereto, and that it is his/her/its intention hereby fully, finally and forever to settle and release all of the RELEASED MATTERS, whether known or unknown, suspected or unsuspected, which now exist, may exist in the future, or heretofore have existed between any of the Parties hereto with respect to the RELEASED MATTERS. (e) It is the intention of the Parties in executing this Agreement and in giving and receiving the consideration called for by this Agreement that this Agreement shall be effective as a full and final accord and satisfaction of and from all RELEASED MATTERS. 6. Applicability of EXCHANGE AGREEMENT Unless expressly and directly provided otherwise in this Agreement, all terms of the EXCHANGE AGREEMENT , shall continue to apply and remain in full force and effect. Because the LICENSE AGREEMENT is recorded, no provision of this Agreement shall supersede or override the provisions of the LICENSE AGREEMENT. 7. Notices All notices, demands and other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be delivered personally, by overnight courier, or sent by registered or certified mail to the undersigned Parties as follows: CITY: City of Moorpark Attention: City Manager Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 5 of 10 20180220 Draft 37 799 Moorpark Avenue Moorpark, CA 93021 COPY TO: Richards, Watson & Gershon Attention: Kevin Ennis, City Attorney 355 South Grand Avenue, 40th Floor Los Angeles, California 90071-3101 BENNETT: The Bennett Partnership Attention: Michael R. Bennett, Partner, and Laurie Bennett, Partner 2419 Palma Drive Ventura, California 93003 8. No Admission of Liability or Waiver The Parties hereto expressly recognize that the terms and conditions of this Agreement constitute a compromise and settlement of disputed claims and an accord and satisfaction of contested matters. This Agreement shall not be construed in any manner as an admission by any Party hereto of any liability of any kind to the other Party, nor shall be it considered or interpreted as an assumption of any liability by either Party. This Agreement shall be admissible for the sole purpose of enforcing the terms hereof. 9. Waiver, Modification and Amendment This Agreement may not be changed, modified or amended except by a written instrument signed by all Parties hereto, specifying that it amends this Agreement. No provision of this Agreement may be waived unless in writing signed by all Parties hereto. Waiver of any one provision shall not be deemed to be a waiver of any other provision herein. 10. Parties in Interest Except as specifically set forth herein, nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any person other than the Parties to it, nor shall any provision give any third person any right of subrogation or other action over or against any Party to this Agreement. 11. Interpretation This Agreement shall be construed without regard to the Party or Parties responsible for the preparation of the same and shall be deemed to have been prepared jointly by the Parties hereto. If any ambiguity or uncertainty exists herein, such ambiguity or uncertainty shall not be interpreted against any Party Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 6 of 10 20180220 Draft 38 hereto, but rather, shall be interpreted according to the application of other rules of contract interpretation. 12. Governing Law And Venue This Agreement is to be construed simply and fairly and not strictly for or against any of the Parties and shall be governed by the laws of the State of California without giving effect to conflicts of laws thereof. The state courts in Ventura County and the federal courts in Los Angeles, California shall have exclusive jurisdiction over any lawsuits arising out of or relating to this Settlement Agreement and Release. Each party hereto submits to the jurisdiction of those courts and venue therein. 13. Indemnification Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees, attorneys, consultants and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any provision thereof, or any other subsequent entitlements for the property and including any related environmental approval. This provision shall survive the termination, expiration or invalidation of the provisions of this Agreement. 14. Execution Knowing and Voluntary The Parties hereby acknowledge, represent and warrant that they (a) have fully and carefully read this Agreement prior to execution; (b) have had the opportunity to be fully apprised by independent legal counsel of their choice of the legal effect and meaning of this document and all terms and conditions hereof; (c) have had the opportunity to make whatever investigation or inquiry they deem necessary in connection with the subject matter of this Agreement; (d) have been afforded the opportunity to negotiate as to any and all terms hereof; and (e) are executing this Agreement as free and voluntary acts, without any duress, menace, pressure, or undue influence of any kind or nature whatsoever. 15. Representations Re: Execution and Authority Each person executing this Agreement expressly represents that such person is duly authorized to execute this Agreement on behalf of the entity he or she purports to represent, and each such entity expressly waives any defense it now has, or in the future may have, with respect to the valid and binding execution of this Agreement by an authorized representative. The Parties expressly represent and warrant that each Party has full power, authority and capacity to release the CLAIMS and RELEASED MATTERS that are the subject of this Agreement and has not previously transferred, assigned or encumbered any CLAIMS or RELEASED MATTERS to any other person or entity. Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 7 of 10 20180220 Draft 39 16. Entire Agreement Except with respect to the EXCHANGE AGREEMENT, the LICENSE AGREEMENT and the terms of the recorded Grant Deeds and Temporary Construction Easements between the parties, this Agreement contains the sole and entire agreement and understanding between the Parties with respect to the entire subject matter' hereof, and any and all prior discussions, negotiations, commitments and understandings related hereto are hereby merged herein. No representations, oral or otherwise, express or implied, other than those contained in the EXCHANGE AGREEMENT, the LICENSE AGREEMENT, the terms of the recorded Grant Deeds and Temporary Construction Easements, and this Agreement between the parties, have been made by any Party hereto. No other agreements not specifically referred to herein, oral or otherwise, shall be deemed to exist or bind any of the Parties hereto. 17. Attorneys' Fees If any action, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party. These fees, which may be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be • entitled. This provision applies to the entire Agreement. 18. Execution This Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall be deemed to constitute a single agreement, notwithstanding that the signatures of the Parties do not appear on the same page. Signatures by facsimile shall be binding, but the Parties shall promptly exchange original signatures on this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date set forth below. [Signatures on Next Page] Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 8 of 10 20180220 Draft 40 Dated: Dated: THE BENNETT PARTNERSHIP, CITY OF MOORPARK, a general partnership a municipal corporation By: By: Michael R. Bennett, Partner Steven Kueny, City Manager ATTEST: By: Charles J. Bennett, Partner By: Maureen Benson, City Clerk Approved as to form: By: Laurie D. Bennett, Partner Richards, Watson & Gershon By: Kevin Ennis, City Attorney By: Steven J. Bennett, Partner Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 9 of 10 20180220 Draft 41 Exhibit A Items Required to be Completed by BENNETT in Association With This Agreement 1. By February 28, 2018, pay $120,000 in cash or cashier's check Deposit Payment to City. 2. By February 28, 2018, Submit TUP Application to City for Temporary Occupancy of PROPERTY by Fence Factory for Sales and Equipment Rentals. Comply with all Conditions of TUP upon issuance. 3. By March 1, 2018, all taxable sales occurring on the PROPERTY shall be reported to the State as occurring in Moorpark and proof shall be provided to the Community Development Director. 4. By March 22, 2018, remove all tenants, all stored items, all unclaimed items, all equipment, all materials, all stored or parked vehicles, operating or not, and all vehicle parts from PROPERTY that are not a part of the IPD Permit Application and abate any other code compliance violations on the site. In case tenant violates notification to vacate and court action is needed, tenant must be off PROPERTY no later than October 22, 2018. 5. Maintain Business Registrations with City for all uses on site. 6. BENNETT, FENCE FACTORY and any other entity on the PROPERTY shall terminate all uses, vehicle and material storage within thirty (30) days of decision on IPD Permit No. 2017-02 if IPD Permit denied. 7. Complete all conditions of approval, including completion of all on-site and off- site improvements associated with IPD Permit by December 31, 2018. 8. Comply with any other terms of the May 8, 2015 EXCHANGE AGREEMENT, the LICENSE AGREEMENT and the terms of the recorded Grant Deeds and temporary construction easements between the parties, not modified by this Agreement. 9. All buildings on the site shall comply with applicable local and California Building Codes prior to occupancy. • Moorpark-Bennett Mutual Release and Pre-Litigation Settlement Agreement Page 10 of 10 20180220 Draft 42