City of Culver City, California
Agenda Item Report
Meeting Date: 12/05/2011 Item Number:JC-3
JOINT CITY COUNCIL/REDEVELOPMENT AGENCY BOARDAGENDA ITEM:
Approval of (1) an Exclusive Negotiation Agreement and (2) a License Agreement
Between the City of Culver City, the Culver City Redevelopment Agency and
Habitat for Humanity of Greater Los Angeles for the Development of the
City/Agency-Owned Site located at 4044-4068 Globe Avenue for Low and Moderate
Income Ownership Housing.
Contact Person/Dept.: John Fisanotti
Tevis Barnes
Phone Number: (310) 253-5767
(310) 253-5782
Fiscal Impact: Yes [X] No [] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [X] Attachments: [X]
Commission Action Required: Yes [] No [X] Date: _______________
Public NotificationE-mail, Agenda and Meetings – City Council, and Redevelopment
Agency (12/01/2011), Affordable Housing (11/28/2011), Habitat for Community of Greater
Los Angeles (11/11/2011), All Residents and Business Within 500 Sq./Ft. of Project Site
(11/22/2011 and 11/29/2011)
Department Approval:
Sol Blumenfeld: (11/22/11)
City Attorney Approval:
Carol Schwab (by H. Baker) (11/28/11)
Agency General Counsel Approval:
Murray Kane: (11/21/11)
Chief Financial Officer Approval:
Jeff Muir (by N. Kimball) (11/29/11)
City Manager/Executive Director Approval:
John Nachbar: (12/01/11)
RECOMMENDATION:
Staff recommends that the Agency Board participates in the deliberation regarding:
1. An Exclusive Negotiation Agreement (ENA) with Habitat for Humanity of Greater
Los Angeles (Developer) related to a proposed Disposition and Development
Agreement (DDA) for the construction of 10 affordable ownership housing units
located at 4044-4068 Globe Avenue (Site); and,
2. A License Agreement with the Developer to allow the Developer the opportunity to
conduct due diligence on the City-owned property located at the Site.
Staff recommends that the City Council:
1. Approve an Exclusive Negotiation Agreement (ENA) with Habitat for Humanity of
Greater Los Angeles (Developer) related to a proposed Disposition and
Development Agreement (DDA) for the construction of 10 affordable ownership
housing units located at 4044-4068 Globe Avenue (Site); and,
City of Culver City, California
Agenda Item Report
2. Approve a License Agreement with the Developer to allow the Developer the
opportunity to conduct due diligence on the City-owned property located at the
Site.
BACKGROUND:
In 2005, the Culver City Redevelopment Agency (Agency) acquired sevensurplus
properties using Housing Set Aside Funds located at 4044-4068 Globe Avenue from
the California Department of Transportation (Caltrans) for $3.1 million for the
purpose of developing low and moderate income housing.
On March 17, 2008, the AgencyBoard reviewed and approved implementation of
Years 1 and 2 of the Comprehensive Housing Strategy (CHS) in order to prioritize
affordable housing project development and allocate funding.|1010|
On November 22, 2010, the AgencyBoard authorized the release of a Request for
Proposals (RFP) to solicit qualified housing developers to develop the Site.On June
13, 2011, the City Council/Agency Board approved the selection of the Developer to
create low and moderate income ownership housing and directed staff to negotiate
the terms and condition of the ENA for the preparation and execution of a DDA. The
City Council directed staff to examine reducing the number of required units to ten.
DISCUSSION:
Proposed Project
The proposed project consists of ten for-sale affordable single-family townhome
units consistent with the property’s R-2 zoning. The townhome driveways will retain
as much street parking as possible and maintain the existing street trees to the
extent possible. The townhomes consist of two different floor plans, 4 bedrooms -
2.5 bathrooms, or 3 bedrooms - 2.5 bathrooms. All townhomes will be two stories
with the living space on the first floor and the bedrooms on the second floor. A
covered carport will be supplied to each townhome. One of the townhome units will
be fully accessible with a downstairs bedroom and full bathroom. All townhomes will
incorporate energy saving appliances and will be constructed using sustainable
materials, environmentally-friendly building practices, and solar panels. The
townhomes will be built to the LEED Silver residential standard and will be at least
10% more efficient than Title 24 requirements.
Five of the townhomes will be sold to low-income buyers (50%-80% of Area Median
Income), and five of the townhomes will be sold to moderate-income buyers (less
than 120% of Area Median Income). Each townhome will carry a 45-year
affordability restriction per California Redevelopment Law (California Health and
Safety Code Section 33334.3 (f)(1)(B)).
City of Culver City, California
Agenda Item Report
Exclusive Negotiation Agreement
The Exclusive Negotiation Agreement shall remain in effect for 120 days
commencing from the 36
th
day of the effective date of the agreement.
The key general terms and provisions of the ENA are set forth below:
• Monthly Status Reports. The Developer shall provide monthly status reports
to the City. These reports shall include progress associated with the
Schedule of Performance, identification of the issuesraised by community
residents and the Developer’s progress in addressing those issues, and
Developer’s efforts to secure qualified buyers for the Project.
• Financial Analysis. The Developer shall provide the City with a detailed
financial analysis for the Project including a detailed development cost
budget, proposed sales prices, and a detailed operating income and expense
estimate for maintenance of the common areas.
• Submittal and Review of Conceptual Plans. The Developer shall submit to
the City conceptual plans for the development of the Site
• City’s Planning Process. The Developer, at its sole cost and expense, shall
submit to the City’s Planning Division such plans as are necessary to conduct
the review for the Project.
• California Environmental Quality Act (CEQA) Compliance. The Developer, at
its sole cost and expense, shall be responsible for compliance with CEQA in
connection with the development of the Site and the Project.
• Community Meetings. The Developer shall conduct three community
meetings in connection with Project entitlements.In addition, the Developer
shall meet with the Advisory Committee on Redevelopment.
• Disposition and Development Agreement (DDA) Process. If the negotiations
culminate in a DDA, such an agreement becomes effective only after a DDA
has been considered and approved by the City Council after a public hearing.
• City’s Right to Additional Information. The City reserves the right, during the
Term of this Agreement, to request reasonable additional information and
data from the Developer necessary for review and evaluation of the Site and
the Project.
• Hazardous Materials and Site Conditions. The Developer shall be solely
responsible for all necessary testing of the Site for hazardous materials
pursuant to all applicable laws, statutes, rules and regulations.
• Developer’s Due Diligence.Developer shall have the right to examine, inspect
and investigate the Site to determine whether the Site is acceptable to
Developer, which right of Developer is subject to and conditioned upon the
terms and provisions of the License Agreement incorporated as an Exhibit to
the ENA.
• City Not Responsible for Costs. Except as otherwise may be mutually agreed
to in writing by the Parties, as part of this Agreement or the DDA, neither the
City nor the Agency shall be liable for any costs and expenses associated
with the preparation of any reports to be prepared by the Developer or the City of Culver City, California
Agenda Item Report
planning or development of the Site pursuant to or arising from this
Agreement.
California Supreme Court Stay
Because of the stay issued by the California Supreme Court on 08/11/2011, the
Agency is prevented from taking action on certain items until the Court renders a
decision (expected by January, 2012) in the case of California Redevelopment
Association et al v. Matosantos et al. Pursuant to the Cooperation Agreement
between the Agency and the City, the City has full authority to enter into the ENA
with the Developer. Therefore, the Agency Board is only participating in the
deliberations regarding the proposed ENA and License Agreement.
FISCAL ANALYSIS:
The Agency expended $3,100,000 to purchase the Globe Avenue site from Caltrans
in 2005. The total constructionbudget is $3,400,000, which equals approximately
$340,000 per unit. The Developer is seeking the contribution of the property and
financial assistance from the City, using former Low-Moderate Income Housing
funds, in the amount of $1,565,000. There are sufficient funds appropriated in the
FY 2011-12 Budget (48297410) to fund this assistance.
In addition to assistance from the City, the Developer will draw project funding from
the following sources: 1) Corporate/Faith Sponsorship in the amount of $600,000, 2)
A conventional loan in the amount of approximately $1,160,000, and 3) WISH
Program funds in the amount of $75,000. Corporate/Faith Sponsorship are grant
funds that are awarded from Habitat for Humanity International. These sponsors also
will participate in building the homes. The Developer is also willing to apply for Cal
HOME funds from the State of California if funding becomes available next year. If
awarded, these funds could be used to reduce the City’s level of financial
participation. The Cal HOMEProgram provides up to $60,000 per unit.
At the beginning of Fiscal Year 2010/2011, the fund balance in the Agency’s
Housing Set Aside Fund was approximately $17,000,000. Pursuant to the
Cooperation Agreements, the site was conveyed from the Agency to the City, and
those Former Agency Funds are now held by the City and will be usedto support the
development of the proposed Globe Avenue project.
ATTACHMENTS:
1. Exclusive Negotiation Agreement
2. License Agreement
City of Culver City, California
Agenda Item Report
MOTION:
That the City Council:
1. Approve an Exclusive Negotiation Agreement (ENA) with Habitat for Humanity
of Greater Los Angeles for the preparation of a Disposition and Development
Agreement for the development of 10 affordable ownership housing units
located at 4044-4068 Globe Avenue; and,
2. Approve a License Agreement with Habitat for Humanity of Greater Los
Angeles and City to perform due diligence on the City-owned property located
at 4044-4068 Globe Avenue; and,
3. Authorize the City Attorney/City Special Counsel to review/prepare the
necessary documents; and,
4. Authorize the City Manager to execute such documents on behalf of the City.
NOTES:
1
The CHS identifies housing sites and development costs and allocates monies from the Housing Set
Aside Fund in an effort to improve the City’s affordable housing stock and meet housing production
requirements under the Regional Housing Needs Assessment (RHNA) planning period. Under
RHNA, over the next seven years, the City must create 504 units of housing with 294 of those units
being designated for very-low, low and moderate households. The Agency-owned site located at
4044-4068 Globe Avenue is one of 3 sites identified under Years 1-2 of the CHS.
MEETING DATE: 12.05.11
AGENDA ITEM: Approval of (1) an Exclusive Negotiation Agreement and (2) a
License Agreement Between the City of Culver City and Culver
City Redevelopment Agency and Habitat for
Humanity of Greater Los Angeles for the Development of the
City/Agency-Owned Site located at 4044-4068 Globe Avenue,
Culver City, CA. for Low and Moderate Income Ownership
Housing
ATTACHMENTS
Pages
1. Exclusive Negotiation Agreement 1-34
2. License Agreement 35-54
EXCLUSIVE NEGOTIATION AGREEMENT
BY AND BETWEEN
THE CITY OF CULVER CITY AND
HABITAT FOR HUMANITY OF GREATER LOS ANGELES
(4044-4068 Globe Avenue)
THIS EXCLUSIVE NEGOTIATION AGREEMENT (“Agreement”) is made and entered
into this ___ day of November __, 2011 (“Effective Date”), by and between the CITY OF
CULVER CITY, a public body, corporate and politic (“City”) and HABITAT FOR
HUMANITY OF GREATER LOS ANGELES, a California non-profit corporation
(“Developer”), individually referred to herein as the “Party” and collectively referred to herein as
the “Parties”, with reference to the following:
RECITALS
WHEREAS, the City and the Developer desire to enter into negotiations concerning the
development of certain land (defined below as the “Site”) in furtherance of the goals and
objectives of the Community Redevelopment Law of the State of California (“Community
Redevelopment Law”, set forth at California Health and Safety Code §§33000, et seq.); and
WHEREAS, the City holds fee title to seven (7) real properties located at 4044, 4048,
4050, 4054, 4058, 4062, and 4068 Globe Avenue, City of Culver City, California (collectively
referred to herein as the “Site”); and
WHEREAS, the Developer submitted a development proposal in response to the Request
for Proposals (“RFP”) issued in November 2010, for acquisition and development of twelve (12)
for-sale townhome units on the Site that will be offered for sale to low and moderate income
buyers; and
WHEREAS, the Parties have since agreed that the project may consist of ten (10) for-sale
townhome units on the Site that will be offered for sale to low and moderate income buyers; and
WHEREAS, the Parties recognize and acknowledge the purpose of this Agreement is to
seek to negotiate the terms of a Disposition and Development Agreement (“DDA”) which will
accomplish the objectives described in this Agreement.
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES
CONTAINED HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION,
THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED BY EACH OF THE
PARTIES HERETO, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are hereby incorporated into this Agreement by this
reference, as though fully set forth herein.
Section 2. THE SITE
ATTACHMENT 1
1The Site is composed of the real properties located at 4044-4068 Globe Avenue, in the
City of Culver City, legally described in the Legal Description attached hereto as Exhibit “A”
and incorporated herein by this reference. The Site is depicted on the Site Map attached hereto
as Exhibit “B” and incorporated herein by this reference.
Section 3. PURPOSE OF AGREEMENT
A The purpose of this Agreement is to provide for the negotiation by the
Parties of a DDA, which shall take into consideration, among other items, each of the following:
Project Description
The proposed project (“Proposed Project”) consists of ten (10) for-sale affordable single
family townhome units. The area is zoned R-2. Each townhome driveway must retain as much
street parking as possible, and the Proposed Project must maintain the existing street trees to the
extent possible; the written consent of the City‘s Community Development Director shall be
required prior to removal of any trees. Each townhome unit will be available in either of two (2)
different floor plans: a 3 bedroom - 2 bathroom unit of approximately 1300 sq ft, or a 3 bedroom
- 2.5 bathroom unit of approximately 1325 sq feet. All residences will be two stories with the
living space on the first floor, and the bedrooms on the second floor. Each townhome unit shall
have two (2) covered parking spaces. One (1) of the townhome units will be fully accessible
with a downstairs bedroom and full bathroom. All townhomes will incorporate energy saving
appliances, conform to the City’s building codes, and be constructed using sustainable materials
and environmentally-friendly building practices. The townhomes will be built to the LEED
Silver residential standard and will be at least 10% more efficient than Title 24 requirements. A
Tentative Tract Map and a Comprehensive Plan will be processed as part of the entitlement
process.
Five (5) of the townhomes will be sold to low-income buyers (50%-80% Area Median
Income) and five (5) of the townhomes will be sold to moderate-income buyers (less than 120%
of Area Median Income). The location of the low- and moderate-income units will be mixed
throughout the development. Each townhome will carry a 45-year affordability restriction (per
California Redevelopment Law).
Developer will be the building contractor for the Proposed Project, and will utilize
volunteer labor in the construction of the townhomes. Additionally, selected buyers of the
townhomes will be required to contribute 500 “sweat equity” hours toward the construction of
their home and/or other homes owned by Developer. If any buyers are single parent or disabled
households, only 250 “sweat equity” hours will be required.
Affordability Mix
The affordability mix of the Proposed Project will include five (5) low-income units
designated for households at 50%-80% of area median income (AMI) and five (5) moderate-
income households at 81%-120% of AMI.
ATTACHMENT 1
2
City Assistance
Developer contemplates that qualified low-income buyers will purchase a townhome unit
using a zero interest loan provided by Developer with silent second mortgage assistance.
Developer further contemplates that moderate-income buyers will be provided a list of lenders
working with Developer and will also receive assistance with the mortgage lending process.
Developer is seeking City assistance in the form of a low or zero interest construction loan, that
will be converted to silent second buyer mortgages upon completion of construction of the
Proposed Project.
Other Considerations for the DDA
(i) The Proposed Project will be consistent with the description set
forth in this Section 3(A) and that certain proposal dated [insert date], 2011,
submitted by the Developer to the City in response to the November 2010 RFP,
and incorporated herein by this reference, subject to changes or revisions to the
Proposed Project as agreed to by the Developer and the City. The Proposed
Project must satisfy the requirements for LEED Silver certification, at a
minimum.
(ii) The coordination of the planning, design and construction of the
Proposed Project must provide affordable housing for low- and moderate-income
households, to maximize the Proposed Project’s compatibility with the abutting
and adjacent uses, and to minimize environmental, traffic and other impacts on
the abutting and adjacent uses.
(iii) Developer must be solely responsible for all development costs of
the Proposed Project (subject to the receipt of the City assistance contemplated
herein). Neither the City or the Agency, nor any of their officers, employees or
agents have provided any direct or indirect information which in any way would
indicate that the Proposed Project is or is not subject to the State of California’s
prevailing wage requirements. The City will not impose any prevailing wage
requirements on the Proposed Project to the extent not otherwise required by
applicable State or Federal law).
(iv) Such other provisions regarding the participation and
responsibilities of the Developer and the City deemed necessary or advisable by
the City to further the purpose of developing the Proposed Project, and meeting
all applicable legal requirements.
B By entering into this Agreement, the Parties’ goal is to provide a Proposed
Project which implements the Community Redevelopment Law, the City’s General Plan and the
Comprehensive Housing Strategy, meets the objective of providing affordable housing for low
and moderate income households, and complements the redevelopment activities already begun
in the West Washington area.
ATTACHMENT 1
3C Notwithstanding any provisions of this Agreement, the Developer
acknowledges and agrees that nothing in this Agreement shall obligate the City to approve a
DDA or the Proposed Project or shall otherwise expressly or impliedly obligate the City to sell
any property or interests therein. The Developer further acknowledges and agrees that the
approval of this Agreement and a DDA and the participation in any portion of the Proposed
Project by the City shall be in the sole and absolute discretion of the City. The Developer further
acknowledges and agrees that this Agreement does not confer upon the Developer the right to
have a DDA, the Proposed Project or any portion of the Proposed Project approved by the City.
The Parties in no way intend for this Agreement to waive or restrict the City’s exercise of its
independent, discretionary judgment with regard to a DDA and any and all portions of the
Proposed Project.
Section 4. EXCLUSIVE RIGHT TO NEGOTIATE
A The City hereby grants to the Developer and the Developer hereby accepts
this Agreement for a period of One Hundred Twenty (120) calendar days, commencing from the
36th day from the Effective Date of this Agreement until the earlier of (i) expiration or earlier
termination of this Agreement pursuant to Sections 8 or 9 of this Agreement and (ii) the date that
a DDA for the Proposed Project is approved or disapproved by the City Council (“Term”).
B Subject to earlier termination pursuant to Sections 8 or 9 of this
Agreement, this Agreement shall remain in effect for the Term so long as Developer has not
breached this Agreement.
C The City and the Developer agree, so long as this Agreement is effective
and for the period set forth in this Section 4 of the Agreement, to negotiate diligently and in good
faith to prepare a DDA to be entered into by the City and the Developer with regard to the
objectives described above and the purposes of this Agreement. During the Term, the City
agrees not to negotiate for the acquisition, financing and/or development of the Site, or any
portion thereof, with any party other than the Developer, or approve or conduct a public hearing
for any other acquisition, financing and/or development of the Site, or any portion thereof.
D Subject to the reasonable approval of the City Manager or designee, the
Term may be extended one or more additional times for a period not to exceed an aggregate of
an additional Ninety (90) calendar days upon the request of the Developer.
E If the Developer requests an additional extension of the Term of this
Agreement beyond the extension described in Section 4.D., then any such extension shall be
granted, if at all, in the sole and absolute discretion of the City Manager or designee and only if
the Developer agrees to reimburse the City and City for all reasonable costs and expenses for
staff and consultant time expended on the negotiation and preparation of the DDA during such
extended term, up to a maximum amount of TWENTY-FIVE THOUSAND DOLLARS
($25,000). Such extension shall be at no cost to the Developer if delays are caused by events
outside of the Developer’s control, such as City review and approval time, scheduling conflicts
and similar matters.
ATTACHMENT 1
4F If, upon the expiration of the Term of this Agreement, the Parties have not
each approved and executed a DDA, then this Agreement shall automatically terminate and the
Developer shall have no further rights regarding the subject matter of this Agreement or all or
any part of the Site and the City shall be free to negotiate with any other persons or entities with
regard to all or any part of the Site.
Section 5. TERMS
A The City and the Developer hereby agree to comply with each of the
following in accordance, as applicable, with the timing described below and the Schedule of
Performance attached hereto as Exhibit “C” and incorporated herein:
(i) Monthly Status Reports. On or before the tenth (10th) day of each
month starting with the first full month after the effective date of this Agreement,
the Developer shall provide monthly status reports to the Community
Development Director or designee in a format reasonably requested by the
Community Development Director or designee. These reports, at a minimum,
shall include status reports regarding progress associated with the Schedule of
Performance, identification of the issues and concerns raised by community
residents, organizations, businesses and property owners and the Developer’s
progress in resolving those issues and concerns, and the Developer’s efforts to
secure quality buyers for the Proposed Project.
(ii) Financial Analysis. Developer shall provide the City with a
detailed financial analysis for the Proposed Project containing matters typically
contained in such analyses, including without limitation, a detailed development
cost budget, proposed sales prices and a detailed operating income and expense
estimate for maintenance of the common areas. The financial analysis will be
used to evidence the financial feasibility of the Proposed Project and to assist in
the negotiation of terms regarding the financing of the Proposed Project. The
analysis shall describe the proposed amount and uses of any financial assistance
requested to be provided by the City. The City staff shall use reasonable efforts to
review and comment on the Financial Analysis in a timely manner.
(iii) Submittal and Review of Conceptual Plans. The Developer shall
submit to the City conceptual plans for the development of the entire Site
(“Conceptual Plans”). The Conceptual Plans shall be consistent with those certain
conceptual plans submitted by the Developer to the City for the Proposed Project,
and hereby incorporated herein by this reference, subject to changes to the
conceptual plans as agreed upon by the City. The City staff shall use reasonable
efforts to review and comment on the Conceptual Plans in a timely manner.
(iv) City’s Planning Process. The Developer, at its sole cost and
expense, shall submit to the City’s Planning Division such plans as are necessary
to conduct the preliminary plan review (“PPR”) for the Proposed Project that the
Planning Division and the Community Development Director or designee
determine must be completed prior to the submittal of the DDA for City Council
ATTACHMENT 1
5approval. Such plans shall be for the entire Site and Proposed Project. The
Developer shall be solely responsible for paying any and all costs and expenses
associated with Developer’s preparation of such plans and with the review and
processing of the plans by the City. The City (as owner of the Site) at no material
cost thereto, shall reasonably cooperate with the Developer in processing the
plans, including, without limitation, execution of all necessary applications to the
City.
(v) CEQA Compliance. The Developer, at its sole cost and expense,
shall be responsible for compliance with CEQA in connection with the
development of the Site and the Proposed Project. The Developer shall be solely
responsible for paying any and all costs and expenses associated with the City’s
compliance with applicable CEQA requirements (including, without limitation,
any required Environmental Impact Report and/or other required environmental
documents). The Developer shall cooperate fully and in a timely manner to
requests for information from the City and any of the City’s consultants. The City
(as the owner of the Site) at no material cost thereto, shall reasonably cooperate
with the Developer in processing CEQA analysis, including, without limitation,
execution of all necessary applications therefor.
(vi) Community Meetings. The Developer shall continue to conduct
community meetings to identify and attempt to resolve potential concerns
regarding the Proposed Project and agrees to conduct and/or participate in not
more than three (3) such meetings as shown in the Schedule of Performance
attached as Exhibit “C”, commencing promptly after the City’s execution of this
Agreement. In addition, the Developer shall meet with the Advisory Committee
on Redevelopment as needed to identify and resolve project design and impact
issues.
(vii) Reserved.
(viii) DDA Process. In accordance with this Agreement, the City shall
conduct any required CEQA review and process and approve or disapprove a
DDA. If the negotiations hereunder culminate in a DDA, such an agreement
becomes effective only after and if a DDA has been considered and approved by
the Council after public hearing. The City shall reasonably cooperate with the
Developer in order to enable the Developer to meet its deadlines (including,
without limitation, using reasonable efforts to make City staff and consultants
available as reasonably needed to allow the City to timely perform its obligations
under this Agreement); however, City is not obligated to expedite any reviews,
approvals, notices, meetings or other matters, and nothing contained in this
Agreement shall be construed to limit the City’s discretion in its activities in
connection with the Proposed Project.
(ix) City’s Right to Additional Information. The City reserves the
right, during the Term of this Agreement, to request reasonable additional
information and data from the Developer necessary for review and evaluation of
ATTACHMENT 1
6the Site and the Proposed Project, provided, however, Developer shall not be
obligated to provide any information or data not obtained by the Developer in the
course of its review and evaluation of the Project. The Developer agrees to
provide such additional information or data as requested in a timely manner. All
information regarding the Developer’s business practice which may be provided
to the City shall remain confidential to the extent permissible by law including,
without limitation, the California Public Records Act. If the City at the request of
the Developer is required to defend an action under the California Public Records
Act with regard to a request for disclosure of any of the documents or reports
related to the Project, Developer agrees to defend and indemnify the City from all
costs and expenses of such defense, including reasonable attorneys fees of the
City or attorneys fees awarded by a court arising out of such action.
(x) Hazardous Materials and Site Conditions. The Developer shall be
solely responsible for all necessary testing of the Site for hazardous materials
pursuant to all applicable laws, statutes, rules and regulations. As between the
City and the Developer, upon the Developer’s acquisition of the Site in its
entirety, the Developer shall also be responsible for making the Site usable for the
Proposed Project as a result of any Site conditions including, without limitation,
flood zones, Alquist-Priolo Earthquake Fault Zoning Act, and similar matters.
For purposes of this Agreement, “hazardous materials” shall mean asbestos;
polychlorinated biphenyls (whether or not highly chlorinated); radon gas;
radioactive materials; explosives; chemicals known to cause cancer or
reproductive toxicity; hazardous waste, toxic substances or related materials;
petroleum and petroleum product, including, but not limited to, gasoline and
diesel fuel; those substances defined as a "Hazardous Substance", as defined by
Section 9601 of the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601, et seq., or as “Hazardous Waste” as
defined by Section 6903 of the Resource Conservation and Recovery Act, 42
U.S.C. 6901, et seq.; an “Extremely Hazardous Waste,” a “Hazardous Waste” or a
“Restricted Hazardous Waste,” as defined by The Hazardous Waste Control Law
under Section 25115, 25117 or 25122.7 of the California Health and Safety Code,
or is listed or identified pursuant to Section 25140 of the California Health and
Safety Code; a “Hazardous Material”, “Hazardous Substance,” “Hazardous
Waste” or “Toxic Air Contaminant” as defined by the California Hazardous
Substance Account Act, laws pertaining to the underground storage of hazardous
substances, hazardous materials release response plans, or the California Clean
Air Act under Sections 25316, 25281, 25501, 25501.1 or 39655 of the California
Health and Safety Code; “Oil” or a “Hazardous Substance” listed or identified
pursuant to 311 of the Federal Water Pollution Control Act, 33 U.S.C. 1321; a
“Hazardous Waste,” “Extremely Hazardous Waste” or an “Acutely Hazardous
Waste” listed or defined pursuant to Chapter 11 of Title 22 of the California Code
of Regulations Sections 66261.1 through 66261.126; chemicals listed by the State
of California under Proposition 65 Safe Drinking Water and Toxic Enforcement
Act of 1986 as a chemical known by the State to cause cancer or reproductive
toxicity pursuant to Section 25249.8 of the California Health and Safety Code; a
material which due to its characteristics or interaction with one or more other
ATTACHMENT 1
7substances, chemical compounds, or mixtures, materially damages or threatens to
materially damage, health, safety, or the environment, or is required by any law or
public agency to be remediated, including remediation which such law or
government agency requires in order for the Site to be put to the purpose proposed
by this Agreement; any material whose presence would require remediation
pursuant to the guidelines set forth in the State of California Leaking
Underground Fuel Tank Field Manual, whether or not the presence of such
material resulted from a leaking underground fuel tank; pesticides regulated under
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq.;
asbestos, PCBs, and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. 2601 et seq.; any radioactive material including, without
limitation, any “source material,” “special nuclear material,” “by-product
material,” “low-level wastes,” “high-level radioactive waste,” “spent nuclear fuel”
or “transuranic waste” and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. 2011 et
seq., the Nuclear Waste Policy Act, 42 U.S.C. 10101 et seq., or pursuant to the
California Radiation Control Law, California Health and Safety Code, Sections
25800 et seq.; hazardous substances regulated under the Occupational Safety and
Health Act, 29 U.S.C. 651 et seq., or the California Occupational Safety and
Health Act, California Labor Code, Sections 6300 et seq.; and/or regulated under
the Clean Air Act, 42 U.S.C. 7401 et seq. or pursuant to The California Clean Air
Act, Sections 3900 et seq. of the California Health and Safety Code. Any studies
and reports generated by the Developer’s testing for hazardous materials shall be
made available to the City without representation or warranty upon the City’s
request, except to the extent such studies and reports are protected by the
attorney-client privilege. Within fourteen (14) days from the execution of this
Agreement, the City will deliver to the Developer all reports within its possession
or under its control regarding Hazardous Materials relating to the Site. In
furtherance of this Agreement, City shall undertake to complete a Phase I
Environmental Site Assessment no later than six (6) weeks from the Effective
Date and provide a copy of any reports generated from said assessment to
Developer.
(xi) Developer’s Due Diligence. During the Term of this Agreement,
Developer shall have the right to examine, inspect and investigate the Site and to
determine whether the Site is acceptable to Developer, which right of Developer
is subject to and conditioned upon the terms and provisions of the License
Agreement attached hereto as Exhibit “D,” incorporated herein by this reference.
(xii) City Not Responsible for Costs. Except as otherwise may be
mutually agreed to in writing by the Parties, as part of this Agreement or the
DDA, neither the City nor the Agency shall be liable for any costs and expenses
associated with the preparation of any reports to be prepared by the Developer or
the planning or development of the Site pursuant to or arising from this
Agreement. Notwithstanding the foregoing or anything to the contrary set forth
elsewhere herein, in the event this Agreement is terminated for any reason other
than a default by Developer, City agrees to purchase from Developer, the work
ATTACHMENT 1
8product prepared for the Proposed Project by the Developer or third parties, at a
cost not to exceed EIGHT THOUSAND DOLLARS AND NO CENTS
($8,000.00).
(xiii) DDA to Supersede this Agreement. This Agreement will be
superseded by the DDA, if and when the proposed DDA is executed by the
Developer, approved by the City in the manner required by law, and executed by
the City.
(xiv) Real Estate Commissions. Neither the City nor the Developer
shall be liable for any real estate commissions or brokerage fees which may arise
herefrom. The City and the Developer each represents it has not engaged a
broker, agent or finder in connection with this transaction. The Developer agrees
to defend, hold harmless and indemnify the City and Agency from any claim by
any broker, agent or finder retained, or claimed to have been retained, by the
Developer. The City agrees to defend, hold harmless and indemnify the
Developer from any claim by any broker, agent or finder retained, or claimed to
have been retained by the City.
(xv) Change in Ownership or Control of Developer. The Developer
understands the City is entering into this Agreement based on the prior experience
and qualifications of the individuals who work for the Developer as of the date of
this Agreement. Therefore, the Developer shall not assign, sell or otherwise
transfer any or all of its rights under this Agreement, or interest herein, without
the prior written approval of the City. Further, no voluntary or involuntary
successor in interest of the Developer shall acquire any rights or powers under
this Agreement except as expressly set forth herein. For the reasons cited herein,
the Developer represents and agrees for itself and any successor in interest that
prior to the expiration of the Term, and without the prior written approval of the
City, there shall be no significant change in the management or control of the
Developer or with respect to the identity of the parties in control of the Developer,
by any method or means. For purposes hereof, a significant change in the
management or control of the Developer or with respect to the identity of the
parties in control of the Developer shall mean a change in the identity of the
President and Chief Executive Officer of Developer, Erin Rank. The Developer
shall promptly notify the AgencyCity of all changes whatsoever in the identity of
the President and Chief Executive Officer. This Agreement may be terminated by
the City if there is any change (voluntary or involuntary) in the identity of the
President and Chief Executive Officer prior to the expiration of the Term without
the prior consent of AgencyCity. Periodic, routine changes in board membership
that cumulatively affect less than 50% of the membership of the Board shall not
be considered a “significant change”. If, except as provided in this Subsection,
there is an assignment of this Agreement, or change in the President and Chief
Executive Officer or membership of the Board of the Developer which the City
does not approve, the City may take such reasonable action as the City may deem
appropriate including, without limiting the generality of the foregoing,
terminating this Agreement and exercising any other rights of the City.
ATTACHMENT 1
9Section 6. TERMS TO BE NEGOTIATED
A The City and the Developer shall meet regularly with each other in order
to negotiate a proposed DDA which shall include, without limitation, the following provisions:
(i) A Scope of Development setting forth the number of housing units,
the total square feet of each townhome unit, amenities for the common areas, the
number of required parking spaces and the design parameters for the Site
including, but not be limited to, building height, acceptable architectural and
landscape quality, access and circulation, determination of parcel boundaries, on-
site and off-site improvements, site-perimeter treatment, landscaped buffers,
parking, signage, lighting, and easements, if applicable. Use issues involving the
compatibility and amount of uses, their financial feasibility and their physical
compatibility, shall also be resolved.
(ii) The manner in which the edges of the development are designed to
maximize compatibility with the abutting and adjacent uses by the use of a variety
of materials to provide a sense of visual relief and openness, to preserve the
privacy of adjacent residential units and to minimize noise and other impacts.
(iii) A sources and uses budget, which shall be based upon a financial
pro forma that has been approved by the City, and a feasible method of financing,
reasonably demonstrating to the City the availability of all funds needed to
complete the development of the Proposed Project. The DDA shall require the
submittal of documentation of all proposed construction financing and donor
equity needed to carry out the proposed method of financing. AgencyCity
acknowledges that a substantial portion of the financing for construction of the
Proposed Project will be supplied by donation of funds, equipment, construction
materials and labor. Developer agrees to make continuing full disclosure to City
of its proposed methods of financing the Proposed Project, including the financing
of any off-site improvements that are required to obtain the necessary entitlements
for the Proposed Project.
(iv) The timing and conditions precedent for the conveyance of the Site
or portions thereof.
(v) Financial consideration to the City for conveyance of fee title
ownership of the Site to the Developer for purposes of redevelopment pursuant to,
and in accordance with, the Community Redevelopment Law. Such consideration
may include a cash payment to the City for a portion of the purchase price for the
Site, with the balance to be paid with a loan from the City.
(vi) The terms of any additional financial assistance to be provided by
the City and the Developer’s construction of additional off-site improvements
requested by the City and agreed to by the Developer.
ATTACHMENT 1
10(vii) Appropriate controls to regulate the use of the Site, including but
not limited to an Agreement Affecting Real Property, setting forth the
Developer’s affordable housing obligations.
(viii) Declaration of Covenants Conditions and Restrictions, including a
management and maintenance plan for the common areas of the Proposed Project.
(ix) A Marketing Plan for sales of the townhome units.
(x) The performance guarantees and amount of liquidated damages, if
any. The proposed DDA shall require the Developer and successor owners of the
Site and improvements located thereon to pay, when due (subject to any
abatement available pursuant to Section 214(g) of the California Revenue and
Taxation Code), all taxes, assessments, and special taxes levied on the Site, in
accordance with applicable laws, and shall provide for appropriate restrictions on
appeals or challenges of assessments of the fair market value of the Site for
property tax purposes. Notwithstanding the foregoing, Developer and successor
owners of the Site and improvements located thereon shall be permitted to request
that the Los Angeles County Assessor and any appropriate related entity assess
property tax on the affordable units based on the affordable housing sales price, or
a similar methodology that acknowledges that the units are subject to affordability
restrictions and therefore were not purchased at fair market value.
(xi) A schedule of performance encompassing appropriate and
necessary legal, administrative, transfer of property ownership, financial and
construction benchmarks to be met by the appropriate Party.
(xii) As between the City, City and Developer, the Developer’s sole
responsibility for all costs and fees associated with the removal or remediation of
any potentially hazardous materials from the Site, demolition of all improvements
on the Site, and relocation of any persons, entities or equipment from the Site.
(xiii) To satisfy the parking needs of the Proposed Project, the
Developer shall comply with any and all requirements of the City.
(xiv) The DDA shall be subject to the City’s standard insurance
requirements and all other applicable and customary City and City policies. The
DDA shall require appropriate performance and payment bonds with regard to the
construction of the Proposed Project or another form of assurance that is
acceptable to the City.
Section 7. LIMITATIONS ON REMEDIES FOR BREACH OR DEFAULT
AND RELEASE OF CLAIMS
A No City Liability for Costs. Except as provided under Section 5.A(xii)
herein, Developer acknowledges and agrees that City shall not have any responsibility to pay or
reimburse Developer for costs and expenses incurred by the Developer in connection with this
Agreement, unless the City assumes any such specific responsibility in the fully executed DDA.
ATTACHMENT 1
11
B Rights and Remedies. If either Party defaults with regard to any of the
provisions of this Agreement, then the non-defaulting Party shall serve written notice of such
default upon the defaulting Party. If the default is not cured within a reasonable time (but not
more than thirty (30) calendar days), then the non-defaulting Party shall have the right to
terminate this Agreement. Developer and City each agree that it shall have no right to obtain
monetary damages, lost profits or consequential damages against the other Party, with respect to
this Agreement, and that its sole remedy shall be termination in accordance with Sections 8 and
9.
C Developer Acknowledgement.
By execution of this Agreement, Developer hereby acknowledges and agrees that it is
aware of the State action with respect to Assembly Bills x1 26 and AB x1 27 which were passed
by the State Legislature on June 15, 2011 and signed by the Governor on June 28, 2011 and any
future or current litigation related thereto, including California Redevelopment Assn. v.
Matosantos (S194861). Notwithstanding any provisions of this Agreement, the City’s failure to
meet its obligations under this Agreement as a result of State action with respect to Assembly
Bills x1 26 and AB x1 27 and any future or current litigation related thereto, including California
Redevelopment Assn. v. Matosantos (S194861), shall not constitute a default by the City under
this Agreement.
D Section 1542. Each Party acknowledges that it is aware of the meaning
and legal effect of California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her would have
materially affected his or her settlement with the debtor.
E General Release. California Civil Code Section 1542 notwithstanding, it
is the intention of both of the Parties to be bound by the limitation on damages and remedies set
forth in this Section 7 of the Agreement, and the Parties hereby release any and all claims against
each other and their respective officers, officials, employees, consultants or agents for damages
or specific performance (except as set forth above) related to any breach of this Agreement,
whether or not any such released claims were known or unknown to either of the Parties as of the
date of this Agreement. Each of the Parties hereby waives the benefits of California Civil Code
Section 1542 and all other statutes and judicial decisions (whether state or federal) of similar
effect with regard to the limitations on damages and remedies and waivers of any such damages
and remedies contained in this Section 7.
______________ ________________
City’s Initials Developer’s Initials
F Survival of Terms. The terms of this Section 7 shall survive the
termination of this Agreement in the event the Parties do not enter into a DDA which supersedes
ATTACHMENT 1
12this Agreement.
Section 8. TERMINATION BY AGENCYCITY
A The City shall have the right to terminate this Agreement in the event of
either of the following:
(i) The Developer fails timely to perform any of its obligations
hereunder or is otherwise in default under this Agreement; or
(ii) The Developer proposes provisions in the proposed DDA which
materially vary from the Proposed Project, and fails to rescind such proposals
after the City notifies the Developer of its intent to terminate this Agreement as a
result of such proposals.
B The City’s right of termination shall be subject to the thirty calendar day
(30-day) notice and cure provisions set forth in Section 7(B) of this Agreement.
Section 9. TERMINATION BY DEVELOPER
A. The Developer shall have the right to terminate this Agreement in the
event of the occurrence of any of the following:
(i) The Developer determines, in its sole and absolute discretion, that (x) the
development of the Proposed Project is not financially feasible or (y) it is
reasonably likely that the Proposed Project will not obtain all necessary
entitlements and environmental clearances necessary for the development and
operation of the Proposed Project.
(ii) In the course of its investigation of the Site, Developer discovers any
currently unknown conditions or circumstances which would materially impact
the cost of the Proposed Project and/or the use of all or any portion of the
Proposed Project; or
(iii) The City fails timely to perform any of its obligations hereunder or is
otherwise in default under this Agreement.
B. The Developer’s right of termination shall be subject to the thirty (30)
calendar day notice and cure provisions set forth in Section 7(B) of this Agreement.
Section 10. INDEMNITY
Other than arising from a dispute between the Developer and City regarding any such
Party’s performance hereunder, Developer shall indemnify, defend, and hold the City and
Agency, their directors, officers, employees, agents, and successors and assigns (collectively, the
“Indemnitees” in this Section) harmless against all suits and causes of action, claims, costs, and
liability, including, but not limited to, reasonable attorney’s fees and costs of any litigation, or
arbitration or mediation, if any, brought (1) challenging the validity, legality or enforceability of
ATTACHMENT 1
13this Agreement (other than an action brought by a Party hereto or any action to enforce chapters
5 and 6, Statutes 2011, First Extraordinary Session (Assembly Bill No. x1 26 x1 and Assembly
Bill No. x1 27 x1, respectively)) or (2) seeking damages which may arise directly or indirectly
from the negotiation, formation, execution, enforcement or termination of this Agreement, or
which are incident to the performance of the activities contemplated in this Agreement (other
than an action brought by a Party hereto or any action to enforce chapters 5 and 6, Statutes 2011,
First Extraordinary Session (Assembly Bill No. x1 26 x1 and Assembly Bill No. x1 27 x1,
respectively)). Nothing in this Section shall be construed to mean that Developer shall hold the
Indemnitees harmless and/or defend them to the extent of any claims arising from, or alleged to
arise from the sole negligence, willful misconduct or illegal acts of any of the Indemnitees, the
failure of the City and/or Agency to follow any rule, procedure or law applicable to the City or
Agency, and/or any claims that this Agreement violates any current agreement to which the City
and/or Agency is subject. The City and Agency agree that they shall fully cooperate with
Developer in the defense of any matter in which Developer is defending and/or holding the
Indemnitees harmless. The City and Agency may make all reasonable decisions with respect to
their representation in any legal proceeding, including, but not limited to, the selection of
attorney(s). This indemnity obligation shall survive the termination of this Agreement.
Section 11. NO THIRD PARTY BENEFICIARIES
The City and the Developer expressly acknowledge and agree they do not intend, by their
execution of this Agreement, to benefit any persons or entities not signatory to this Agreement,
except the Agency to the extent expressly provided for herein. Except for the Agency to the
extent expressly provided for herein, no person or entity not a signatory to this Agreement shall
have any rights or causes of action against either the City or the Developer arising out of or due
to the City’s or the Developer’s entry into this Agreement.
Section 12. NOTICES
A Any notice, request, approval or other communication to be provided by
either Party shall be in writing and dispatched by first class mail, registered or certified mail,
postage prepaid, return-receipt requested, or by personal delivery (including by means of
professional messenger service, courier service such as United Parcel Service or Federal Express,
or by U.S. Postal Service), to the addresses of the City and the Developer set forth in this Section
12 of the Agreement. Such written notices, requests, approvals or other communication may be
sent in the same manner to such other addresses as either Party may designate from time to time.
B Any notice personally delivered (including by means of professional
messenger service, courier service such as United Parcel Service or Federal Express, or by U.S.
Postal Service), shall be deemed received on the documented date of receipt; and any notice that
is sent by registered or certified mail, postage prepaid, return-receipt requested shall be deemed
received on the date of receipt thereof.
If to the City:
City of Culver City
Attn: Sol Blumenfeld, 9770 Culver Boulevard
ATTACHMENT 1
14Culver City, California 90232-0507
Telephone: (310) 253-5700
With a copy to:
Kane, Ballmer & Berkman
Attn: Susan Y. Cola
515 S. Figueroa Street; Suite 1850
Los Angeles, California 90071-3301
Telephone: (213) 617-0480
If to the Developer:
Habitat for Humanity Greater Los Angeles
Attn: Erin Rank
17700 S. Figueroa Street
Gardena, CA 90248
(310) 323-4663
With a copy to:
Leibold McClendon & Mann, PC
Attn: Joy Heuser Otsuki
23422 Mill Creek Drive, Suite 105
Laguna Hills, California 92653
Telephone: (949) 457-6300
Section 13. NO CONFLICT OF INTEREST
No member, official, or employee of the City or the Agency shall have any personal
interest, direct or indirect, in this Agreement, nor shall any such member, official or employee
participate in any decision relating to this Agreement which affects his or her personal interests
or the interests of any corporation, partnership or association in which he or she is, directly or
indirectly, interested. The Developer warrants that it has not paid or given, and will not pay or
give, directly or indirectly, any City or Agency employee or official any money or other
consideration at all, whether or not connected in any way with the subject matter of this
Agreement. Further, the Developer warrants that it has no knowledge of any financial interest of
any City or Agency employee or official in the Developer, directly or indirectly, or in any person
or entity affiliated with the Developer, or in any transaction in which the Developer has been
involved.
Section 14. LIMITATION ON EFFECT OF AGREEMENT
This Agreement shall not obligate either Party to enter into a DDA or to enter into any
particular DDA. The City and Developer do not intend this Agreement to be a purchase
ATTACHMENT 1
15agreement, ground lease, license, option or similar contract. Nor do City and Developer intend to
be bound in any way by this Agreement except during the Negotiating Period as expressly set
forth herein. By execution of this Agreement, the City is not committing itself to or agreeing to
undertake acquisition, disposition, or exercise of control over any portion of the Site nor is
Developer committing itself to undertake the acquisition of any portion of the Site or the
development, financing or construction of the Proposed Project. Execution of this Agreement by
the City and Developer is merely an agreement to conduct a period of exclusive negotiations and
to prepare recommendations to the City Council in accordance with the terms hereof, reserving
for subsequent City action the final discretion and approval regarding the execution of a DDA
and all proceedings and decisions in connection therewith. Any DDA resulting from
negotiations pursuant to this Agreement shall become effective only if and after such DDA has
been considered and approved by the City Council following performance of all legally required
procedures. Each party assumes the risk that, notwithstanding this Agreement and good faith
negotiations, the Parties may not enter into a DDA due to the Parties’ failure to agree upon
essential terms of a transaction or a decision by the City Council not to authorize execution of a
DDA. Except as expressly provided in this Agreement, a Party shall have no obligations or
duties to the other Party hereunder and no liability whatsoever in the event the Parties fail to
execute a DDA.
Section 15. MISCELLANEOUS PROVISIONS
A Counterparts. This Agreement may be executed in counterparts, each of
which when so executed shall be deemed an original, and all of which, when taken together,
shall constitute but one and the same instrument.
B Entire Agreement/Integration. This Agreement represents the entire
agreement of the Parties and integrates all of the terms and conditions mentioned herein or
incidental hereto, and supersedes all negotiations or previous agreements, oral or written,
between the Parties with respect to development of the Site.
C Waivers; Amendments. All waivers of the provisions of this Agreement
must be in writing and signed by the appropriate authorities of the Party to be charged, and all
amendments and modifications hereto must be in writing and signed by the appropriate
authorities of the Parties. Except as otherwise expressly provided in this Agreement, any failure
or delay by either Party in asserting any of its rights or remedies as to any Default shall not
operate as a waiver of said Default or of any rights or remedies in connection therewith or of any
subsequent Default or any rights or remedies in connection therewith, or deprive such Party of its
right to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
D Governing Law and Venue. This Agreement and the legal relations
between the Parties shall be governed by, interpreted under, construed and enforced in
accordance with, the internal laws of the State of California without reference to the rules
governing the conflict of laws. This Agreement is made and entered into in the County of Los
Angeles, California, and any legal actions or proceedings arising from or related to this
Agreement shall be brought in the County of Los Angeles.
ATTACHMENT 1
16E No Association Between the Developer and City and/or Agency. The
Parties in no way intend for this Agreement to give rise to or create any relationship of
partnership, joint venture, or any other form of association of any kind or nature between the
Developer and the City and/or the Agency.
F Representation of the City. The City Manager, or his or her designee
shall represent the City in all matters pertaining to this Agreement whenever a reference is made
herein to an action or approval to be undertaken by the City, the City Manager is authorized to
act unless this Agreement specifically provides otherwise or the context shall otherwise require.
G Assignment. This Agreement shall not be assignable by either Party
without the prior written consent of the other Party. The City shall have the right to terminate
this Agreement if Developer assigns this Agreement or if there is any material change in the
management or control of the Developer.
H Ambiguities. This Agreement is in all respects intended by each Party
hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties
hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted
against either of them. Except as expressly limited by this Section 15(H) of the Agreement, all of
the applicable rules of interpretation of contracts shall govern the interpretation of any
uncertainty or ambiguity of this Agreement.
I Captions and Headings. The headings and captions of the various sections
and paragraphs of this Agreement have been inserted only for the purpose of convenience and
are not a part of this Agreement and shall not be deemed in any manner to modify, explain,
expand or restrict any of the provisions of this Agreement.
J Severability. Every provision of this Agreement is intended to be
severable. If any provision of this Agreement or the application of any provision hereof to any
party or circumstance is declared to be illegal, invalid or unenforceable for any reason
whatsoever by a court of competent jurisdiction, such invalidity shall not affect the other terms
and provisions hereof or the application of the provision in question to any other party or
circumstance, all of which shall continue in full force and effect.
K Warranty Against Payment of Consideration for Agreement. Developer
warrants that it has not paid or given, and will not pay or give, any third party any money or
other consideration for obtaining this Agreement.
L Nonliability of Officials, Officers, Members, and Employees. No
member, official, officer, or employee of the City or the Agency shall be personally liable to
Developer, or any successor in interest, in the event of any default or breach by the City or for
any amount which may become due to Developer or to his successor, or on any obligations under
the terms of this Agreement. No member, officer or employee of Developer shall be personally
liable to the City, or any successor in interest, in the event of any default by the Developer or for
any amount which may become due to the City or its successor, or an obligation under the terms
of this Agreement.
ATTACHMENT 1
17M Developer’s Obligation For Equal Opportunity. Developer will not
discriminate against any employees or applicants for employment because of race, color,
religion, creed, national origin, ancestry, sex, sexual orientation, age, disability, medical
condition, or marital status.
N Use of Project Images. Developer hereby consents to the use by City of
images of the Proposed Project, its models, plans and other graphical representations of the
Project and its various elements (“Project Images”) in connection with marketing, public
relations, and special events, websites, presentations, and other uses required by the City and/or
City in connection with the Project through the Negotiating Period. Such right to use the Project
Images shall not be assignable by the City to any other party (including, without limitation, any
private party) without the prior written consent of Developer. Use by City of Project Images,
Developer’s name or names of its affiliates will be subject to prior Developer approval, which
shall not be unreasonably withheld or delayed. For any Project Images provided to City by
Developer, Developer shall use reasonable efforts to obtain any rights and/or consents from any
third parties necessary to provide these Project Image use rights to City. In the event that the
Parties enter into a DDA, the City’s right to use the Project Images shall be as set forth in the
DDA.
ATTACHMENT 1
18O Authority to Enter Agreement. The Developer represents and warrants
that it has all requisite power and authority to conduct its business and to execute, deliver, and
perform the Agreement. Each Party warrants that the individuals who have signed this
Agreement have the legal power, right, and authority to make this Agreement and to bind each
respective Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first written above.
CITY OF CULVER CITY REDEVELOPMENT
Dated: ______________ By: _________________________
John M. Nachbar
City Manager
APPROVED AS TO FORM:
KANE, BALLMER & BERKMAN
By: _______________________________
Murray O. Kane
Special Counsel
HABITAT FOR HUMANITY OF GREATER
LOS ANGELES, a California non-profit
corporation
Dated: _______________ By: _________________________
Erin Rank
President and CEO
ATTACHMENT 1
19EXHIBIT “A”
LEGAL DESCRIPTION OF
PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
ATTACHMENT 1
20ATTACHMENT 1
21ATTACHMENT 1
22ATTACHMENT 1
23ATTACHMENT 1
24ATTACHMENT 1
25ATTACHMENT 1
26ATTACHMENT 1
27EXHIBIT “B”
MAP OF THE SITE
[Immediately Follows This Page.]
ATTACHMENT 1
28ATTACHMENT 1
29ATTACHMENT 1
30EXHIBIT “C”
SCHEDULE OF PERFORMANCE
[Immediately Follows This Page.]
ATTACHMENT 1
31EXHIBIT “C”
SCHEDULE OF PERFORMANCE
Deadline for
Performance
Days from
Effective Start Date
(Step 3)
1. City approves ENA
December 5, 2011 -35
2. Developer consults with City staff
for submittal and CEQA
requirements.
December 7, 2011 -33
3. Effective Start Date due to Holiday
Hiatus - 35 days after ENA approval
January 9, 2012 0
4. Developer conducts first
community meeting.
January 12, 2011 3
5. Developer conducts second
community meeting
February 9, 2012 31
6. Developer submits financial pro
forma, including proposed sources
and uses and cash flow projections
February 13, 2012 35
7. Developer submits Conceptual
Plans to Planning staff for
Preliminary Plan Review and
necessary studies for CEQA analysis
February 13, 2012 35
8. City staff determines whether
Conceptual Plans are complete to
submit for a Preliminary Plan
Review (PPR) and commences
CEQA review, as required, and
submits draft of DDA to Developer
February 20, 2012 42
9. Developer submits proposed term
sheet to City staff
February 20, 2012 42
ATTACHMENT 1
3210. City delivers Phase I Environmental
Study to Developer
February 2012 42
11. PPR Meeting
March 1, 2012 52
12. Developer conducts third
community meeting
In lieu of a 3
rd
meeting, Developer
gets credit for the
ACOR Meetings in
January and March
of 2009.
13. Developer submits revised PPR
plans for the DDA
March 26, 2012 77
14. City staff completes draft CEQA
initial study.
March 29, 2012 80
15. DDA and 33433 Report finished and
start of CEQA review period
April 12, 2012 94
16. First Public Hearing Notice
Published
April 12, 2012 94
17. Second Public Hearing Notice
Published
April 19, 2012 101
18. Public hearing on proposed DDA.
City approves or disapproves
Conceptual Plans and DDA
May 7, 2012 119
ATTACHMENT 1
33EXHIBIT “D”
LICENSE AGREEMENT
[Immediately Follows This Page.]
ATTACHMENT 1
34LICENSE AGREEMENT
BY AND BETWEEN
THE CITY OF CULVER CITY AND
HABITAT FOR HUMANITY OF GREATER LOS ANGELES
(4044-4068 Globe Avenue)
THIS LICENSE AGREEMENT is entered into by and between the CITY OF CULVER
CITYCITY, a public body, corporate and politic (the “City”) and HABITAT FOR HUMANITY
OF GREATER LOS ANGELES, a California non-profit corporation (the “Developer”). The City
and Developer agree as follows:
RECITALS
A. The City holds fee title to certain real properties hereinafter defined as the “Site”
and Developer desires to acquire the Site from the City for the construction and operation on the
Site of the improvements (the “Proposed Project”) described in the Exclusive Negotiation
Agreement between the City and the Developer dated as of August __, 2011 (the “ENA”).
B. The City and Developer desire that Developer have an opportunity to conduct due
diligence on the Site, which may include performing physical tests on the Site, prior to the
parties entering into a written agreement to convey the Site to the Developer.
NOW THEREFORE, the Parties agree as follows:
1. Parties to the Agreement.
(a) The City is a public body, corporate and politic, exercising municipal
functions and powers. The principal office of the City is located at 9770 Culver Boulevard,
Culver City, California 90232-0507 or such other location of which notice is given pursuant to
this Agreement. Its facsimile number is (310) 253-5779. “City” as used in this Agreement
includes any assignee of or successor to its rights, powers and responsibilities.
(b) The Developer is Habitat for Humanity of Greater Los Angeles, a
California non-profit corporation. The principal office of the Developer is located at 17700 S.
Figueroa Street, Gardena, California 90248 or such other location of which notice is given
pursuant to this Agreement. Its facsimile number is (310) ___-____.
2. Description of Site.
The City is the owner of certain real properties located at 4044-4068 Globe
Avenue in the City of Culver City, Los Angeles County, California, and more particularly
described in Exhibit A and illustrated by the site map in Exhibit B, which are attached to this
Agreement and hereby incorporated by reference (the “Site”).
3. Grant of License.
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35(a) Subject to and conditioned upon the terms and conditions of this
Agreement, the City grants to Developer and its authorized agents a license (the “License”) to
perform the following acts on the Site: (1) obtain soil samples and make such other surveys,
investigations and tests reasonably necessary to determine the suitability of the Site for the
development, financing and/or construction of the Proposed Project; and (2) conduct reasonable
investigations on and beneath the Site and all improvements thereon to determine the presence of
Hazardous Materials and/or other soil conditions. As used herein, the phrase “Hazardous
Materials” shall have the same meaning given to it in the ENA.
(b) Developer may not use the Site for any other purpose without obtaining
the City’s prior written consent.
4. Term.
This License shall commence on the Effective Date of the ENA and shall
automatically expire, without need for further notice of any kind, upon the expiration of the
Term of the ENA, unless otherwise mutually extended beforehand by the parties in writing or
earlier terminated in accordance with its terms (the “Term”).
5. Compliance With Laws.
Developer, at its expense, shall comply in all material respects with all applicable
federal, state and local laws, ordinances, regulations, rules and orders with respect to the Site,
including all applicable federal and state labor laws. Developer, its agents, contractors, licensees,
employees or invitees shall not permit to be placed upon the Site any Hazardous Materials,
except for de minimis quantities used in compliance with all applicable environmental laws and
required in connection with Developer’s permitted activities under this License. Developer shall
conduct all of its operations on the Site at its sole cost and expense.
6. Reports and Studies.
In consideration of the City’s granting of this License, Developer shall promptly
provide the City without representation or warranty with a copy of all reports and test results
arising from this License which are not legally privileged.
7. License Nonassignable.
This License is personal to Developer and shall not be assigned. Any attempt to
assign the License shall automatically terminate it, without need for notice of any kind. No legal
title or interest in the Site is created or vested in Developer by the grant of this License.
8. Nonexclusive License.
This License is nonexclusive. Nothing contained herein shall be construed to
restrict or prevent the entry onto and use of the Site during the Term of the License by the City or
its agents, consultants, assigns and other licensees.
9. Surrender.
ATTACHMENT 2
36On or before the termination date for the License, Developer shall remove all of
its personal property from the Site and shall (except as prohibited by any local State or Federal
agency) fill any excavations made by Developer to return the Site to its previous condition and
shall surrender possession of the Site to the City in good order and repair to the satisfaction of
the City, normal wear and tear excepted.
10. Release and Indemnity.
Developer, as a material part of the consideration to be rendered to the City for
the granting of this License, for itself and its successors and assigns, hereby agrees:
(a) to indemnify, defend, protect and hold the City and Culver City
Redevelopment Agency (“Agency”), their directors, officers, employees, agents, and successors
and assigns (the “Indemnified Parties”), free and harmless against all suits and causes of action,
claims, costs, and liability, including, but not limited to, reasonable attorney’s fees and costs of
any litigation, or arbitration or mediation, if any, arising from the exercise of the License,
including, but not limited to:
(1) any and all risks of or exposure to any loss or liability arising from
activities conducted by Developer on the Site under this License;
(2) any and all claims arising from or relating to the transportation,
storage, handling or use of any material taken from the Site pursuant to the
License, or from any substance, known or unknown, emanating or derived
therefrom; and
(3) any and all claims for damage to the Site, any improvements
thereon, or to the property or person of any third party, alleged to have been
caused by, or in any way connected with the activities conducted by Developer on
the Site under this License or any material taken from the Site pursuant to the
License.
Nothing in this Section shall be construed to mean that Developer shall hold the
Indemnified Parties harmless and/or defend them to the extent of any claims arising from, or
alleged to arise from the sole negligence or willful misconduct of any of the Indemnified Parties.
The City and Agency agree that they shall fully cooperate with Developer in the defense of any
matter in which Developer is defending and/or holding the Indemnified Parties harmless. The
City and Agency may make all reasonable decisions with respect to their representation in any
legal proceeding, including, but not limited to, the selection of attorney(s). This indemnity
obligation shall survive the termination of this Agreement. Notwithstanding the foregoing,
Developer shall have no obligation to indemnify an Indemnified Party for loss, liability, claims,
damages and expenses arising solely from Developer’s discovery of Hazardous Materials already
present on the Site prior to the commencement of this License, so long as Developer has not
materially contributed to the placement, release or migration of such pre-existing Hazardous
Materials.
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37(b) To fully and finally release the Indemnified Parties from any and all
claims, demands, actions, or suits of any kind or nature arising out of any liability, known or
unknown, present or future, including, but not limited to, rights or claims for implied
contribution or indemnity, or any claim or liability based or asserted pursuant to any law or
ordinance which seeks to impose any liability or damage whatsoever upon any Indemnified Party
arising from the execution and/or performance of this License Agreement, or from any of its
terms.
In connection with the foregoing release, Developer hereby acknowledges that it
has been advised by legal counsel and is familiar with the provisions of California Civil Code,
section 1542, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Developer, being aware of such code section, agrees to expressly waive any rights
it may have thereunder, as well as under any other statute or common law principles of similar
effect.
______________ ________________
City’s Initials Developer’s Initials
11. Insurance.
(a) Developer shall maintain or cause to be maintained Commercial General
liability insurance, to protect against loss from liability imposed by law for damages on account
of bodily injury, including death therefrom, suffered or alleged to be suffered by any person or
persons whomsoever on or about the Site, resulting directly or indirectly from any acts or
activities of Developer, or any person acting for Developer, or under its respective control or
direction, and also to protect against loss from liability imposed by law for damages to any
property of any person occurring on or about the Site, or in connection with Developer’s
activities thereon, caused directly or indirectly by or from acts or activities of Developer, or any
person acting for Developer, or under its control or direction. Such property damage and
personal injury insurance shall also provide for and protect the City against incurring any legal
cost in defending claims for alleged loss. Such personal injury and property damage insurance
shall be maintained in full force and effect during the Term in the following amounts:
commercial general liability in a general aggregate amount of not less than Two Million Dollars
($2,000,000); and a per occurrence limit not less than One Million Dollars ($1,000,000) of
bodily injury and property damage insurance. Developer agrees that provisions of this paragraph
as to maintenance of insurance shall not be construed as limiting in any way the extent to which
Developer may be held responsible for the indemnification of City or the payment of damages to
persons or property resulting from Developer’s activities, or the activities of any other person or
persons for which Developer is otherwise responsible.
ATTACHMENT 2
38(b) Developer shall maintain or cause to be maintained workers’
compensation insurance issued by a responsible carrier authorized under the laws of the State of
California to insure employers against liability for compensation under the workers’
compensation laws now in force in California, or any laws hereafter enacted as an amendment or
supplement thereto or in lieu thereof. Such workers’ compensation insurance shall cover all
persons employed by Developer in connection with the Site and shall cover liability within
statutory limits for compensation under any such act aforesaid, based upon death or bodily injury
claims made by, for or on behalf of any employee of Developer incurring or suffering injury or
death in connection with the Site or the operation thereof by Developer. Notwithstanding the
foregoing, Developer may, in compliance with the laws of the State of California and in lieu of
maintaining such insurance, self-insure for workers’ compensation in which event Developer
shall deliver to City evidence that such self-insurance has been approved by the appropriate State
authorities.
(c) All policies shall name the City and the Agency as additional insureds.
(d) All insurance provided under this section shall be for the benefit of
Developer, City and Agency. Developer agrees to timely pay all premiums for such insurance
and, at its sole cost and expense, to comply and secure compliance with all insurance
requirements necessary for the maintenance of such insurance. Developer agrees to submit
policies of all insurance required by this section, or certificates evidencing the existence thereof,
and additional insured endorsements to City not less than 15 days prior to its commencement of
any activities on the Site, indicating full coverage of the contractual liability imposed hereby.
“Full coverage” for contractual liability in this section (d) is defined as the coverage grant under
the ISO CG 0001 policy form definition of an “insured contract.” All insurance herein provided
for shall be effected under policies issued by insurers of recognized responsibility, licensed and
admitted to do business in the State of California (or if not admitted in California shall have a
“General Policyholders Rating” of at least “A-” as set forth in the most current issue of “Best’s
Key Rating Guide”), reasonably approved by City. All policies or certificates of insurance shall
provide that such policies shall not be canceled or limited in any manner without at least thirty
(30) days prior written notice to City.
(e) The evidence of insurance required hereunder is a condition precedent to
Developer’s right to enter upon the Site. If Developer fails or refuses to procure or maintain the
insurance required by this Agreement, the License granted by this Agreement shall automatically
terminate and be of no further force or effect.
12. City’s Authorized Representative.
Unless otherwise specified or the context requires otherwise, all references to the
City in this Agreement and its attachments shall mean the City Manager of the City or any
officer or employee of the City to whom the City Manager or the City Council of the City
delegates authority to perform, carry out and/or enforce this Agreement. Unless otherwise
specified or the context requires otherwise, all references to the City Manager shall mean the
City Manager or his or her designee.
13. Notices, Demands And Communications Between The Parties.
ATTACHMENT 2
39Formal notices, demands and communications between the City and Developer
shall be sufficiently given if dispatched by registered or certified mail, postage prepaid, return
receipt requested, to the principal offices of the City and the Developer. Such written notices,
demands and communications may be sent in the same manner to such other addresses as either
party may from time to time designate by mail. Any notice that is transmitted by electronic
facsimile transmission followed by delivery of a “hard” copy, shall be deemed delivered upon its
transmission; any notice that is personally delivered (including by means of professional
messenger service, courier service such as United Parcel Service or Federal Express, or by U.S.
Postal Service), shall be deemed received on the documented date of receipt by the recipient; and
any notice that is sent by registered or certified mail, postage prepaid, return receipt required
shall be deemed received on the date of receipt thereof.
14. Conflict of Interest.
To the extent prohibited by law, no member, official or employee of the City shall
have any personal interest, direct or indirect, in this Agreement nor shall any such member,
official or employee participate in any decision relating to the Agreement which affects his or
her personal interests or the interests of any corporation, partnership or association in which he
or she is directly or indirectly interested.
Developer warrants that it has not paid or given, and will not pay or give, any
third party any money or other consideration for obtaining this Agreement.
15. Non-liability of Officials and Employees.
(a) No member, official or employee of the City or the Agency shall be
personally liable to Developer, or any successor in interest, in the event of any default or breach
by the City or for any amount which may become due to Developer or on any obligations under
the terms of this Agreement. This release shall not apply in the event of fraud by the City or the
Agency or any member, officer or employee thereof.
(b) No member, official or employee of Developer shall be personally liable
to the City, or any successor in interest, in the event of any default or breach by Developer or for
any amount which may become due to the City or its successor or on any obligations under the
terms of this Agreement. This release shall not apply in the event of fraud by Developer or any
member, official, or employee of Developer.
16. Interpretation of Agreement; Terminology; Application of Law.
This Agreement has been negotiated at arm’s length and between persons
sophisticated and knowledgeable in the matters addressed herein. In addition, each Party has
been given the opportunity to consult with experienced and knowledgeable legal counsel.
Accordingly, any rule of law (including Civil Code section 1654) or legal decision that would
require interpretation of any ambiguities in this Agreement against the Party that has drafted it is
not applicable and is waived. The provisions of this Agreement shall be interpreted in a
reasonable manner to effectuate the purpose and intent of the parties to this Agreement. This
Agreement shall be construed and enforced in accordance with the internal laws of California
ATTACHMENT 2
40and not the law regarding conflict of laws, except to the extent that Federal law preempts State
law
When the context so requires when used in this Agreement, the masculine gender
shall be deemed to include the feminine and neuter gender and the neuter gender shall be deemed
to include the masculine and feminine gender. When the context so requires when used in this
Agreement, the singular shall be deemed to include the plural. The paragraph and section
headings have been used for convenience only, and shall not be used in the interpretation hereof.
17. Waivers.
A waiver by the City or Developer of any term, covenant, or condition herein
contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.
All waivers must be in writing and signed by the appropriate representatives of the City or
Developer.
18. Time of the Essence.
Time is of the essence in this Agreement and each and all of its provisions in
which performance is a factor.
19. Attorneys’ Fees and Costs.
If any action or proceeding is brought by any Party against any other Party under
this Agreement, whether for interpretation, enforcement or otherwise, the prevailing Party shall
be entitled to recover all costs and expenses, including the reasonable fees of its attorney and any
expert witnesses in such action or proceeding. This provision shall also apply to any post-
judgment action by either Party, including without limitation efforts to enforce a judgment.
20. Severability.
Any provision of this Agreement that shall prove to be invalid, void, or illegal
shall in no way affect, impair, or invalidate any other provision hereof and such other provisions
shall remain in full force and effect.
21. Entire Understanding Of The Parties; Amendments.
This Agreement, including any document or instrument incorporated herein by
reference, contains a complete and final expression of the agreement between the City and
Developer relating to this License, and there are no promises, representations, agreements,
warranties, or inducements either express or implied other than as are set forth in this
Agreement. Any and all previous discussions or agreements between the City and Developer
with respect to this License, whether oral or written, are superseded by this Agreement. No
amendment, change, or addition to, or waiver of termination of, this Agreement or any part
hereof shall be valid unless in writing and signed by the City and Developer.
22. No Third Party Beneficiaries.
ATTACHMENT 2
41The parties to this Agreement acknowledge and agree that the provisions of this
Agreement are for the sole benefit of the City and the Developer, and not for the benefit, directly
or indirectly, of any other person or entity, except as otherwise expressly provided herein.
23. Further Assurances.
Each of the parties hereto shall execute and deliver any and all additional papers,
documents and other assurances, and shall do any and all necessary acts and things in connection
with the performance of their obligations hereunder and to carry out the intent and agreements of
the parties.
24. Execution in Counterparts.
This Agreement may be executed in several counterparts and all such executed
counterparts shall constitute one agreement, binding on all of the parties hereto, notwithstanding
that all of the parties hereto are not signatories to the original or to the same counterpart. This
Agreement shall not be binding unless and until all parties hereto have executed this Agreement.
25. Authority to Sign.
The Developer represents and warrants that it has all requisite power and
authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party
warrants that the individuals who have signed this Agreement have the legal power, right, and
authority to make this Agreement and to bind each respective Party.
ATTACHMENT 2
42IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed as of the date first written above.
CITY OF CULVER CITY
Dated: _______________ By: __________________________
John M. Nachbar
City Manager
APPROVED AS TO FORM:
KANE, BALLMER & BERKMAN
By: _______________________________
Murray O. Kane
Special Counsel
HABITAT FOR HUMANITY OF GREATER
LOS ANGELES, a California non-profit
corporation
Dated: ___________________ By: ____________________________
Erin Rank
President and CEO
ATTACHMENT 2
43EXHIBIT A
LEGAL DESCRIPTION OF SITE
THAT REAL PROPERTY LOCATED IN THE CITY OF CULVER CITY, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
ATTACHMENT 2
44ATTACHMENT 2
45ATTACHMENT 2
46ATTACHMENT 2
47ATTACHMENT 2
48ATTACHMENT 2
49ATTACHMENT 2
50ATTACHMENT 2
51EXHIBIT “B”
SITE MAP
ATTACHMENT 2
52ATTACHMENT 2
53ATTACHMENT 2
54