City of Culver City, California
Agenda Item Report
Meeting Date: 1/15/2011 Item Number: _J-3
JOINT CITY COUNCIL / REDEVELOPMENT AGENCY BOARD AGENDA ITEM:
Approval of a Purchase Agreement to Transfer Ownership of the Cardiff Parking
Structure located at 3846 Cardiff Avenue from the City of Culver City to the Culver
City Redevelopment Agency.
Contact Person/Dept.:
Sol Blumenfeld, Community Development
Todd Tipton, Community Development
Phone Number:
(310) 253-5700
(310) 253-5783
Fiscal Impact: Yes [X] No [] General Fund: Yes [] No [X]
Public Hearing: [X] Action Item: [] Attachments: [X]
Commission Action Required: Yes [] No [X] Date: _______________
Public Notification: Meetings and Agendas – City Council (01/13/11); Meetings and
Agendas – Redevelopment Agency (01/13/11); Interested Media (01/13/11)
Department Approval:
Sol Blumenfeld (01/13/11)
City Attorney Approval:
Carol Schwab (by H. Baker) (01/13/11)
Agency General Counsel Approval:
Murray Kane: (01/13/11)
Chief Financial Officer Approval:
Jeff Muir
City Manager/Executive Director Approval:
John M. Nachbar
RECOMMENDATION:
Staff recommends the City Council and Culver City Redevelopment Agency Board
(Agency Board) approve a Purchase Agreement to transfer ownership of the Cardiff
Parking Structure located at 3846 Cardiff Avenue from the City of Culver City (City)
to the Culver City Redevelopment Agency (Agency).
BACKGROUND/DISCUSSION:
The Cardiff Parking Structure is owned by the City. The operations are overseen by
Agency staff. Because the parking structure is owned by the City, the Agency’s
authority is limited when it comes to how the parking spaces are controlled. To
address this, staff recommends that ownership be transferred from the City to the
Agency pursuant to a Purchase Agreement with the following terms:
1. Payment from the Agency to the City in the amount of $14 million;
2. Seven percent simple interest;
3. Payment due within 20 years after the close of escrow;
4. No prepayment penalty.
Please note that the transfer of the parking structure from the City to the Agency will
not adversely affect parking agreements that currently exist.
City of Culver City, California
Agenda Item Report
FISCAL ANALYSIS:
The payment price for the structure is $14 million, which will be funded with tax
increment proceeds.
ATTACHMENTS:
1. Draft Purchase Agreement
MOTION:
That the City Council:
1. Approve a Purchase Agreement to transfer ownership of the Cardiff Parking
Structure located at 3846 Cardiff Avenue from the City of Culver City to the
Culver City Redevelopment Agency for the price of $14,000,000; and
2. Authorize the City Attorney to review/prepare the necessary documents; and
3. Authorize the Mayor to execute such documents on behalf of the City.
That the Redevelopment Agency Board:
1. Approve a Purchase Agreement to transfer ownership of the Cardiff Parking
Structure located at 3846 Cardiff Avenue from the City of Culver City to the
Culver City Redevelopment Agency for the price of $14,000,000; and
2. Authorize Agency General Counsel to review/prepare the necessary
documents; and
3. Authorize the Executive Director to execute such documents on behalf of the
Agency.
MEETING DATE: January 15, 2011
AGENDA ITEM: Approval of a Purchase Agreement to
Transfer Ownership of the Cardiff Parking
Structure located at 3846 Cardiff Avenue
from the City of Culver City to the Culver
City Redevelopment Agency.
ATTACHMENTS
Pages
1. Draft Purchase Agreement 1 - 18
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AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS FOR
PROPERTY LOCATED AT 3846 CARDIFF AVENUE
(APN:________________)
This AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS ( the “Agreement”) dated this _____ day of __________ 2011, is entered into
by and between the CULVER CITY REDEVELOPMENT AGENCY, a public body corporate
and politic (the “Buyer”) and the CITY OF CULVER CITY, a municipal corporation (the
“Seller”). Buyer and Seller are each a “Party” and are collectively the “Parties.”
1. Purchase and Sale. Pursuant to the terms and conditions set forth in this
Agreement, Seller does hereby agree to sell to Buyer and Buyer does hereby agree to purchase
from Seller the Property as hereinafter defined, on the terms and conditions hereinafter set forth,
together with all Improvements as hereinafter defined.
The terms and conditions of this Agreement and the instructions to an escrow company
mutually agreed upon by the parties (“Escrow Holder”) with regard to the escrow (“Escrow”)
created pursuant hereto shall constitute the joint escrow instructions of Buyer and Seller to
Escrow Holder as well as an agreement between Buyer and Seller. In the event of a conflict
between the provisions of this Agreement and Escrow Holder’s general escrow instructions, the
provisions of this Agreement shall prevail.
2. Property. The Property to be acquired by Buyer from Seller under this
Agreement consists of that certain real property located at 3846 Cardiff Avenue in the City of
Culver City, California, described in the “Legal Description” attached hereto as Exhibit A and
incorporated herein by this reference, shown on the “Site Map” attached hereto as Exhibit B and
incorporated herein by this reference and known as APN:_______________(“Property”). For
purposes of this Agreement, the term “Property” shall mean and include the above-referenced
parcel of land, any fixtures and equipment, buildings, structures and/or improvements located on
said land (“Improvements”), and all singular estates, rights, privileges, easements and
appurtenances owned by Seller and belonging or in any way appertaining to the Property. Seller
currently owns fee title to the Property and all of the Improvements.
3. Acquisition.
a. Purchase Price. The purchase price to be paid by Buyer to Seller for the
Property and all Improvements in the form provided below, shall be Fourteen Million
$14,000,000 Dollars (the “Purchase Price”).
b. As-Is. The Property and all existing Improvements on the Property shall
be conveyed in its present "as is" condition. Except for Seller’s representations and warranties
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set forth in this Agreement, neither Seller nor any of Seller’s agents, contractors, consultants,
attorneys or representatives have made, make and specifically negate and disclaim, and Buyer is
not relying on, any representations, warranties, promises, covenants, agreements or guarantees of
any kind whatsoever, whether express or implied, oral or written, past, present or future with
respect to the Property.
4. Payment of Purchase Price. The Purchase Price for the Property shall be payable
by Buyer at the Close of Escrow hereunder as follows:
a. Promissory Note in Favor of Seller. Full payment of the Purchase Price
($14,000,000) shall be made at the Close of Escrow (defined below) in the form of a Promissory
Note in favor of the Seller in the amount of Fourteen Million Dollars, payable by Buyer two
years (Fiscal Year 2012-2013) after the Close of Escrow (“Note Amount”). Unpaid principal
under the Promissory Note shall accrue simple interest at the rate of seven (7%) percent per
annum. The Promissory Note shall be in a form and substance mutually agreed to by the parties.
The Promissory Note evidencing the Note Amount shall be secured by a Deed of Trust, which
Deed of Trust shall be in a form and substance approved by the parties hereto.
b. Closing Funds. Within five (5) days of written request from Escrow
Holder, and in any event prior to the Close of Escrow (as defined in Paragraph 5.b. below),
Buyer shall deposit or cause to be deposited with Escrow Holder, in cash or by a certified or
bank cashier’s check made payable to Escrow Holder or a confirmed wire transfer of funds, the
Buyer’s share of its Closing Costs as provided in Paragraph 10 below. All escrow, recording and
title insurance costs shall be paid by Seller and Buyer in accordance with Paragraph 10 below.
5. Escrow.
a. Opening of Escrow. For purposes of this Agreement, the Escrow shall be
deemed opened on the date Escrow Holder shall have received an executed original counterpart
of this Agreement from both Buyer and Seller (“Opening Date”). Escrow Holder shall notify
Buyer and Seller, in writing, of the Opening Date and the Closing Date, as defined in paragraph
5.b, below. In addition, Buyer and Seller agree to execute, deliver, and be bound by any
reasonable or customary supplemental escrow instructions of Escrow Holder, or other
instruments as may reasonably be required by Escrow Holder, in order to consummate the
transaction contemplated by this Agreement. Any such supplemental instructions shall not
conflict with, amend, or supersede any portion of this Agreement. If there is any inconsistency
between such supplemental instructions and this Agreement, then this Agreement shall control.
b. Close of Escrow. The Close of Escrow shall occur on or before January
31, 2012, unless extended in writing by the parties (“Closing Date”).
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c. Due Diligence Period. Buyer shall have sixty (60) days from the Opening
Date (the “Due Diligence Period”) to inspect the Property and Due Diligence Materials. In the
event Buyer finds the Property unsatisfactory for any reason, Buyer at its sole discretion shall
notify Seller and Escrow Holder in writing prior to expiration of the Due Diligence Period.
Thereafter, Buyer and Seller shall have no obligation to each other (except as otherwise set forth
herein). In the event of a cancellation of Escrow, Buyer and Seller shall each bear one-half of
any Escrow cancellation fees.
6. Conditions of Title. It shall be a condition to the Close of Escrow and a covenant
of Seller that Seller shall convey good and marketable fee simple title to the Property by the
Grant Deed, subject only to the following approved conditions of title ( herein the “Approved
Condition of Title”):
a. Matters affecting the Approved Condition of Title created by or with the
written consent of Buyer.
b. Exceptions which are disclosed by the Preliminary Title Report described
in Paragraph 7. a. (1) hereof and which are approved or deemed approved by Buyer in
accordance with Paragraph 7. a. (2) hereof.
c. Title to the Property shall be conveyed from Seller to Buyer under this
Agreement free and clear of any easement, right of way or any other right whatsoever in Seller to
access or use the Property.
Seller covenants and agrees during the term of this Escrow, Seller will not cause
or knowingly permit title to the Property to differ from the Approved Condition of Title
described in this Paragraph 6. Any liens, encumbrances, easements, restrictions, conditions,
covenants, rights, rights-of-way, or other matters affecting the Approved Condition of Title
which may appear of record or be revealed after the date of the Preliminary Title Report
described in Paragraph 7. a. (1) below, shall also be subject to Buyer’s approval. Buyer shall
have the right to disapprove such matters by delivery of written notice to Seller within five (5)
days after the date Buyer receives knowledge of such matters, and Seller shall have the right to
elect to cure the same, upon delivery of written notice to Buyer within five (5) days after Seller’s
receipt of such notification from Buyer.
7. Conditions to Close of Escrow.
a. Conditions to Buyer’s Obligations. The Close of Escrow and Buyer’s
obligation to consummate the transaction contemplated by this Agreement are subject to the
satisfaction of the following conditions for Buyer’s benefit on or prior to the dates designated
below for the satisfaction of such conditions:
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(1) Delivery of Due Diligence Materials/Title. Within thirty (30) days
of the Opening Date, Seller will deliver to Buyer copies of the following items, if and to
the extent such items are in Seller’s possession: (i) a current Preliminary Title Report for
the Property and legible copies of all documents, whether recorded or unrecorded,
referred to in the Preliminary Title Report; (ii) any and all environmental reports relating
to the Property; and (iv) copies of any and all material documents that pertain to the
physical and/or economic condition of the Property (collectively referred to herein as
the “Due Diligence Materials”).
(2) Review and Approval of Documents and Materials. Prior to the
expiration of the Due Diligence Period, Buyer shall have the right to review and approve
or disapprove, in its sole and subjective discretion, at Buyer’s sole cost and expense, any
environmental reports, soils inspection, conditions of title, zoning, surveys, all physical
inspections of the Property, the Due Diligence Materials, and all other reports or
inspections as Buyer may deem necessary or appropriate in connection with this
Agreement. Failure of Buyer to give disapproval of the Due Diligence Materials on or
before the expiration of the Due Diligence Period shall be deemed to constitute Buyer’s
approval of all Due Diligence Materials. If Buyer disapproves or conditionally approves
any matters of title shown in any of the title reports, then Seller may, within fourteen (14)
days after its receipt of Buyer’s notice of disapproval of the Due Diligence Materials,
elect to eliminate or ameliorate to Buyer’s satisfaction the disapproved or conditionally
approved title matters. Seller shall thereupon give Buyer written notice of those
disapproved or conditionally approved title matters, if any, which Seller covenants and
agrees to either eliminate from the Approved Condition of Title as exceptions to title to
the Property or to ameliorate to Buyer’s satisfaction by the Closing Date as a condition to
the Close of Escrow for Buyer’s benefit. If Seller does not elect to eliminate or
ameliorate to Buyer’s satisfaction any disapproved or conditionally approved title
matters, or if Buyer disapproves of Seller’s notice, or if, despite its commercially
reasonable efforts, Seller is unable to eliminate or ameliorate to Buyer’s satisfaction all
such disapproved matters prior to the Closing Date, then Buyer shall have the right to, by
a writing delivered to Seller and Escrow Holder: (i) waive its prior disapproval, in which
event the disapproved matters shall be deemed approved; or (ii) terminate this Agreement
and the Escrow created pursuant thereto, in which event Buyer shall be entitled to the
return of all monies previously deposited with Escrow Holder or released to Seller
pursuant to this Agreement, and the Escrow and the rights and obligations of the parties
hereunder shall thereafter terminate.
(3) Representations, Warranties, and Covenants of Seller. Seller shall
have duly performed each and every agreement to be performed by Seller hereunder and
Seller’s representations, warranties, and covenants set forth in Paragraph 13 shall be true
and correct as of the Closing Date.
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(4) No Material Changes. At the Closing Date, there shall have been
no material adverse changes in the physical condition of the Property.
(5) Inspections and Studies. Prior to the expiration of the Due
Diligence Period, Buyer shall have approved the results of any and all inspections,
investigations, tests and studies (including, without limitation, investigations with regard
to zoning, building codes and other governmental regulations, architectural inspections,
engineering tests, economic feasibility studies and soils, seismic and geologic reports)
with respect to the Property (including all structural and mechanical systems and leased
areas) as Buyer may elect to make or obtain. The failure of Buyer to approve the results
on or prior to the expiration of the Due Diligence Period shall be deemed to constitute
Buyer’s disapproval of the results. The cost of any such inspections, tests and studies
shall be borne by Buyer. During the term of this Escrow, Buyer, its agents, contractors
and subcontractors, upon at least twenty-four (24) hours’ written notice, shall have the
right to enter upon the Property, at reasonable times during ordinary business hours, to
make any and all inspections and tests as may be necessary or desirable in Buyer’s sole
judgment and discretion. Buyer shall use care and consideration in connection with any
of its inspections. Buyer shall indemnify, defend and hold Seller and the Property
harmless from any and all claims, liabilities, damages, costs and expenses (including
reasonable attorneys’ fees) arising out of, or resulting from the negligence of Buyer’s,
and/or Buyer’s agents, contractors and/or subcontractors directly resulting from such
entry or activities upon the Property.
b. Conditions Precedents to Seller’s Obligation. For the benefit of Seller, the
Close of Escrow shall be conditioned upon the occurrence and satisfaction of each of the
following conditions (or Seller’s waiver thereof, it being agreed Seller may waive any or all of
such conditions):
(1) Promissory Note. Buyer shall have executed and delivered into
Escrow the Promissory Note in favor of Seller in the amount of the Purchase Price,
which Promissory Note shall be in a form and substance mutually agreed to by the
parties;
(2) Deed of Trust. Buyer shall have executed and delivered into
Escrow the Deed of Trust, in recordable form, for the benefit of Seller, securing the
Promissory Note, which Deed of Trust shall be in a form and substance mutually agreed
to by the parties;
(3) Buyer’s Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer, and
(4) Buyer’s Representations. All representations and warranties made
by Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow.
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8. Deposits by Seller. At least three (3) business days prior to the Close of Escrow,
Seller shall deposit or cause to be deposited with Escrow Holder the following documents and
instruments:
a. Grant Deed. A grant deed in a form and substance approved by the parties
( the “Grant Deed”) conveying the Property to Buyer, duly executed by Seller, acknowledged
and in recordable form. Upon receiving said executed Grant Deed, Escrow Holder is instructed
to forward a copy of Grant Deed to Buyer so that an Original Certificate of Acceptance can be
attached.
9. Deposits by Buyer. At least three (3) business days prior to the Close of Escrow,
Buyer shall deposit or cause to be deposited with Escrow Holder the following:
a. Promissory Note. Executed Promissory Note in favor of Seller in the
amount of the Purchase Price; and
b. Deed of Trust. Executed Deed of Trust for the benefit of Seller, in
recordable for, securing the Promissory Note.
10. Costs and Expenses. The cost and expense of the Title Policy attributable to
ALTA coverage, plus the cost attributable to an endorsement insuring Buyer’s title against any
mechanics’ liens as of the Closing Date, shall be paid by Buyer. Buyer shall pay any Escrow
fees. Buyer shall pay all documentary transfer taxes, if any, payable in connection with the
recordation of the Grant Deed. The amount of such transfer taxes shall not be posted on the
Grant Deed, but shall be supplied by separate affidavit. Buyer shall pay the Escrow Holder’s
customary charges to Buyer and Seller for document drafting, recording, and miscellaneous
charges. Each party shall be responsible for their respective legal fees and costs in connection
with this transaction.
11. Prorations. Escrow Holder shall prorate all rents, real estate taxes (including those
levied pursuant to the RMA), bonds or assessments (general and special) as of 12:01 a.m. on the
date of the Close of Escrow.
a. All operating expenses of the Property including, without limitation, utility
charges, maintenance charges, management fees, and other costs and expenses shall be prorated
between Buyer and Seller as of 12:01 a.m. on the date of Close of Escrow. Any utility services
shall be transferred to the name of the Buyer effective as of the Close of Escrow and Seller shall be
relieved of any future liability for such charges incurred after the Close of Escrow. In the event
Seller has made any utility deposits, Seller shall be entitled to a refund of such deposits directly
from the utility companies and any future deposits shall be paid directly to the utility companies by
Buyer; provided, however, that Buyer may elect, in its sole discretion, to require Seller to assign
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the rights to utility deposits to Buyer in exchange for a credit to Seller through Escrow for the
amount of such deposits.
b. At least three (3) business days prior to the Closing Date, Seller shall
provide to Buyer a schedule of all prorations accompanied by the latest available billings for any
operating expenses and statements for rent, if applicable. Buyer and Seller shall agree upon such
prorations and notify Escrow Holder on or before two (2) business days prior to the Closing Date.
c. Seller shall pay all bills incurred with respect to the Property prior to the
Close of Escrow; provided, however, with respect to bills not received by Seller before the Close of
Escrow, Seller shall pay the portion of such bills attributable to the period prior to the Close of
Escrow within ten (10) days after Seller’s receipt of same. Said covenant of Seller shall survive the
Close of Escrow. Buyer shall pay all bills incurred with respect to the Property following the Close
of Escrow.
d. In the event that there are any unknown amounts to be prorated as of the
Close of Escrow, then Seller and Buyer will prorate the same promptly after the Close of Escrow
and outside the escrow.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow,
the Escrow Holder shall promptly undertake all of the following in the manner indicated:
a. Prorations. Prorate all matters referenced herein, based upon the
statement delivered into Escrow signed by the parties.
b. Recording. Cause the Grant Deed, Deed of Trust and any other
documents which the parties hereto may mutually direct, to be recorded in the Official Records
of Los Angeles County, California, in the order set forth in this subparagraph. Escrow Holder is
instructed not to affix the amount of documentary transfer tax on the face of the Grant Deed, but
to supply same by separate affidavit.
c. Funds. Disburse from funds deposited by Buyer with Escrow Holder
toward payment of all items chargeable to the account of Buyer, pursuant thereto in payment of
such costs, and disburse the balance of such funds to Buyer.
d. Documents to Buyer. Deliver the Bill of Sale, executed by Seller, and,
when issued, the Title Policy to Buyer.
13. Seller’s Representations and Warranties. In consideration of Buyer entering into
this Agreement, and as an inducement to Buyer to purchase the Property, Seller makes the
following representations and warranties, each of which is material and is being relied upon by
Buyer (and the continued truth and accuracy of which shall constitute a condition precedent to
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Buyer’s obligations hereunder):
a. Validly Existing. Seller is a municipal corporation, duly formed, validly
existing and in good standing under the laws of the State of California.
b. Authorization. This Agreement has been duly and validly authorized,
executed and delivered by Seller, and no other action is requisite to the execution and delivery of
this Agreement by Seller.
c. Threatened Actions. There are no actions, suits or proceedings pending
against, or, to Seller’s actual knowledge, threatened or affecting the Property in law or equity.
d. Third Party Consents. No consents or waivers of, or by, any third party
are necessary to permit the consummation by Seller of the transactions contemplated pursuant to
this Agreement.
e. No Violation of Law. To Seller’s actual knowledge, there is no violation
of law or governmental regulation by Seller with respect to the Property.
f. Condemnation. There are no pending, or, to Seller’s actual knowledge,
threatened proceedings in eminent domain or otherwise, which would affect the Property or any
portion thereof.
g. Compliance with Law. To Seller’s actual knowledge, all laws,
ordinances, rules, and requirements and regulations of every governmental agency, body, or
subdivision thereof bearing on the Property have been complied with by Seller.
h. Documents. To Seller’s actual knowledge, all documents delivered to
Buyer pursuant to this Agreement are true and complete copies of originals, and any and all
information supplied to Buyer by Seller in accordance with Paragraph 7.a.(2) hereof is true and
complete.
i. Hazardous Materials. As of the date of the execution of this Agreement,
Seller has no actual knowledge of any use or condition of the Property by Seller or by any
predecessor in interest of Seller which would have caused Hazardous Materials to exist in, on,
under or about the Property. Seller agrees to and shall defend, indemnify and hold harmless
Buyer, and its officers, agents and employees (the “Indemnified Parties”) from and against all
claims, liability, loss, damage, costs or expenses (including reasonable attorneys' fees and court
costs) incurred by the Indemnified Parties, arising from or as a result of any Hazardous Materials
which may be found on the Property, at any time, which (a) were caused to exist in, on, under or
about the Property by Seller, and (b) which existed on the Property prior to the Closing Date.
For purposes of this Agreement, the term “Hazardous Materials” means any substance, material
or waste which is regulated as hazardous/contaminating or potentially hazardous/contaminating
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by the United States government, the State of California, or any local or other governmental
authority, including, without limitation, any material, substance or waste which is (i) defined as a
“hazardous waste,” “acutely hazardous waste,” “restricted hazardous waste,” or “extremely
hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140,
of the California Health and Safety Code; (ii) defined as a “hazardous substance” under Section
25316 of the California Health and Safety Code; (iii) defined as a “hazardous material,”
“hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and
Safety Code; (iv) defined as a “hazardous substance” under Section 25281 of the California
Health and Safety Code; (v) petroleum; (vi) asbestos; (vii) lead; (viii) a polychlorinated
biphenyl; (ix) 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; (x)
designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act (33
U.S.C. Section 1317); (xi) defined as a “hazardous waste” pursuant to Section 1004 of the
Resource Conservation and Recovery Act (42 U.S.C. Section 6903); (xii) defined as a
“hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601); (xiii) any other substance, whether in
the form of a solid, liquid, gas or any other form whatsoever, with respect to which any
governmental regulations or requirements provide for special handling in its use, transportation,
generation, collection, storage, treatment or disposal; (xiv) any substance, product, waste, or
other material of any nature whatsoever which may give rise to liability under any of the above
statutes or under any statutory or common law theory based on negligence, trespass, intentional
tort, nuisance or strict liability or under any reported decisions of a state or federal court; (xv)
petroleum or crude oil other than petroleum and petroleum products which are contained within
regularly operated motor vehicles; and (xvi) asbestos.
j. Due Diligence Materials. To Seller’s knowledge, there are no other reports
relating to the physical condition of the Property that are in existence, but not in Seller’s
possession.
Seller's representations and warranties made in this Paragraph 13 shall be continuing and
shall be true and correct as of the Close of Escrow with the same force and effect as if remade by
Seller in a separate certificate at that time. The truth and accuracy of Seller's representations and
warranties made herein shall survive the Close of Escrow (the “Survival Period”).
14. Buyer’s Representations and Warranties. In consideration of Seller entering into
this Agreement, and as an inducement to Seller to sell the Property to Buyer, Buyer makes the
following representations and warranties, each of which is material and is being relied upon by
Seller (the continued truth and accuracy of which shall constitute a condition precedent to
Seller’s obligations hereunder):
a. Buyer is a public body corporate and politic, duly formed, validly existing
and in good standing under the laws of the State of California.
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b. Buyer has the full right, power and authority to enter into this Agreement
and the instruments referenced herein; and to consummate the transactions contemplated hereby.
c. The persons executing this Agreement, the instruments referenced herein,
and any other documents executed and delivered on behalf of Buyer have the full right, power
and authority to do so and have been duly authorized to do so by Buyer, and no other persons are
required to execute this Agreement on behalf of Buyer.
d. This Agreement and all documents executed by Buyer under this
Agreement which are to be delivered to Seller are, or at the time of Close of Escrow will be, duly
authorized, executed, and delivered by Buyer, and are, or at the Close of Escrow will be legal,
valid, and binding obligations of Buyer, and do not, and at the Close of Escrow will not violate
any provisions of any agreement or judicial order to which Buyer is a party or to which it is
subject.
e. The representations and warranties of Buyer set forth in this Agreement
shall be true on and as of the Close of Escrow as if those representations and warranties were
made on and as of such time and shall survive the Close of Escrow.
15. Damage or Condemnation Prior to Closing.
a. Material Damage or Destruction. In the event of material damage to or
destruction of the Property prior to Closing, through no fault of Seller, Buyer shall have the
right, but not the obligation, exercisable by giving notice to Seller within fifteen (15) days after
receiving written notice of such damage or destruction, either (i) to terminate this Agreement, in
which case neither party shall have any further rights or obligations hereunder except that (a) all
funds deposited into Escrow or documents in Escrow shall be returned to the party depositing the
same, and (b) Buyer and Seller each shall be responsible for one-half of any title or escrow
cancellation fee, or (ii) to accept the Property in its then condition and to proceed with the
Closing, in which event upon the Close of Escrow, Buyer shall be entitled to receive an
assignment of all of Seller’s rights to any insurance proceeds payable by reason of such damage
or destruction. If Buyer elects to proceed under clause (ii) above, Seller shall not compromise,
settle or adjust any claims to such proceeds without Buyer’s prior written consent.
b. Eminent Domain. In the event that prior to the Closing, all or any material
portion of the Property is subject to a taking or a threatened taking by a public authority, Buyer
shall have the right, but not the obligation, exercisable by giving notice to Seller within fifteen
(15) days after receiving written notice of such taking, either (i) to terminate this Agreement, in
which case neither party shall have any further rights or obligations hereunder except that (a) all
funds deposited into Escrow or documents in Escrow shall be returned to the party depositing the
same, and (b) Buyer and Seller each shall be responsible for one-half of any title or escrow
cancellation fee, or (ii) to accept the Property in its then condition and to proceed with the
Closing without an abatement or reduction in the Purchase Price, in which case Buyer shall be
entitled to receive an assignment of all of Seller’s rights to any condemnation award payable by
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reason of such taking. If Buyer elects to proceed under clause (ii) above, Seller shall not
compromise, settle or adjust any claims to such award without Buyer’s prior written consent.
c. Non-Material Taking or Damage. In the event that prior to the Closing,
any Non-Material portion of the Property is damaged, destroyed or subject to a taking or a
threatened taking by a public authority, Buyer shall accept the Property in its then condition and
proceed with the Closing without any abatement or reduction in the Purchase Price, in which
case Buyer shall be entitled to receive an assignment of all of Seller’s rights to (i) any applicable
insurance proceeds; and/ or (ii) any condemnation award payable by reason of such taking. In
the event of any such Non-Material damage, destruction or taking, Seller shall not compromise,
settle or adjust any claims to such award without Buyer’s prior written consent.
16. Notices. Formal notices, demands and communications between Buyer and Seller
shall be deemed sufficiently given if dispatched by first class mail, registered or certified mail,
postage prepaid, return receipt requested, or by electronic facsimile transmission followed by
delivery of a "hard" copy, 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 Buyer and Seller as set forth below. 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 (delivered during normal business hours) 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; 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.
To Buyer: Culver City Redevelopment Agency
Attn: Sol Blumenfeld
9770 Culver Boulevard
Culver City, CA 90232-0507
Telephone: (310) 253-5702
Facsimile: (310) 253-5779
To Seller: City of Culver City
Attn: John M. Nachbar
9770 Culver Boulevard
Culver City, CA 90232-0507
Telephone: (310) 253-6000
Facsimile: (310) 253-6010
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With a Copy To: Culver City City Attorney
9770 Culver Boulevard
Culver City, CA 90232-0507
Attn: Carol Schwab
Telephone: (310) 253-5660
Facsimile: (310) 253-5664
Notice of change of address shall be given by written notice in the manner detailed in this
paragraph. Rejection or other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to constitute receipt of the notice,
demand, request, or communication sent.
17. Legal Fees. Each party shall be responsible for their respective legal fees and
costs in connection with any action or suit against the other party hereunder arising out of this
Agreement.
18. Assignment. Buyer shall not be entitled to assign this Agreement without the
prior written consent of Seller, which consent shall not be unreasonably withheld.
19. Legal and Equitable Enforcement of this Agreement.
a. Default by Seller. In the event the Close of Escrow and the acquisition of
the Property by Buyer does not occur by reason of any default by Seller, which default continues
for a period of at least five (5) days following Seller’s receipt of written notice from Buyer, then
Buyer shall be entitled to the return of all of its out-of-pocket expenses incurred in connection
with the transaction, and shall have the right to pursue any other remedy available to it at law or
in equity, including the specific performance of this Agreement.
b. Default by Buyer. In the event the Close of Escrow and the acquisition of
the Property by Buyer does not occur by reason of any default by Buyer, which default continues
for a period of at least five (5) days following Buyer’s receipt of written notice from Seller, then
Seller shall be entitled to the return of all of its out-of-pocket expenses incurred in connection
with the transaction, and shall have the right to pursue any other remedy available to it at law or
in equity, including the specific performance of this Agreement.
20. Miscellaneous.
a. Survival of Covenants. The covenants, representations and warranties of
both Buyer and Seller set forth in this Agreement shall survive the recordation of the Grant Deed
and the Close of Escrow for the Survival Period.
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b. Required Actions of Buyer and Seller. Buyer and Seller agree to execute
such instruments and documents and to diligently undertake such actions as may be reasonably
required in order to consummate the purchase and sale herein contemplated, and shall use their
commercially reasonable efforts to accomplish the Close of Escrow in accordance with the
provisions hereof.
c. Time of Essence. Time is of the essence of each and every term, condition,
obligation, and provision hereof.
d. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which, together, shall constitute one and the
same instrument.
e. Captions. Any captions to, or headings of, the paragraphs or
subparagraphs of this Agreement are solely for the convenience of the parties hereto, are not a
part of this Agreement, and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
f. Broker. Buyer and Seller each represent and warrant to the other party
that neither has dealt with or engaged a broker in connection with this transaction, and agrees to
indemnify and save harmless the other party from and against all claims, costs, liabilities and
expense (including court costs and reasonable attorneys’ fees) incurred by the other party as a
result of a breach of this representation.
g. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, nor obligate any of the parties hereto, to any person or entity other than the parties hereto.
h. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference.
i. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
j. Fees and Other Expenses. Except as otherwise provided herein, each of
the parties shall pay its own fees and expenses in connection with this Agreement.
k. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
l. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day Escrow opens), and including
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the last day, unless the last day is a holiday or Saturday or Sunday, in which case the time shall
be extended to the next business day.
m. Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against any
party by reason of the authorship of this Agreement or any other rule of construction which
might otherwise apply.
n. Conflicts of Interest. No member, official or employee of the Buyer or the
Seller 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 personal interests or the interests of any corporation, partnership or association in
which he is, directly or indirectly, interested.
o. Gender and Number. As used in this Agreement, masculine, feminine or
neuter gender and the singular or plural number shall each be deemed to include the others
wherever and whenever the context so dictates.
p. Severability. If any provision of this Agreement shall be adjudged invalid,
illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall not be affected thereby, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein, and the remainder of
this Agreement shall be valid and enforceable to the fullest extent permitted by law.
21. Mutual Indemnification. In contemplation of the provisions of Section 895.2 of
the California Government Code imposing certain tort liability jointly upon public entities solely
by reason of such entities being parties to an agreement as defined by Section 895 of said Code,
the parties hereto, as between themselves, pursuant to the authorization contained in Section
895.4 and 895.6 of said Code, will each assume the full liability imposed upon it, or any of its
officers, agents or employees by law for injury caused by negligent or wrongful act or omission
occurring in the performance of this Agreement to the same extent that such liability would be
imposed in the absence of Section 895.2 of said Code. To achieve the above stated purpose each
party indemnifies and holds harmless the other party for any loss, cost or expense that may be
imposed upon such other party solely by virtue of said Section 895.2. The provisions of Section
2778 of the California Civil Code are made a part hereof as if fully set forth herein.
22. Indemnification of Escrow Holder.
a. If this Agreement or any matter relating hereto shall become the subject of
any litigation or controversy, Buyer and Seller agree, jointly and severally, to hold Escrow
Holder free and harmless from any loss or expense, including attorney’s fees, that may be
suffered by it by reason thereof except for losses or expenses as may arise from Escrow Holder’s
negligent or willful misconduct. If conflicting demands are made or notices served upon Escrow
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Holder with respect to this Agreement, the parties expressly agree that Escrow Holder shall be
entitled to file a suit in interpleader and obtain an order from the court requiring the parties to
interplead and litigate their several claims and rights among themselves. Upon the filing of the
action in interpleader, Escrow Holder shall be fully released and discharged from any obligations
imposed upon it by this Agreement, and
b. Escrow Holder shall not be liable for the sufficiency or correctness as to
form, manner, execution, or validity of any instrument deposited with it, nor as to the identity,
authority or rights of any person executing such instrument, nor for failure of Buyer or Seller to
comply with any of the provisions of any agreement, contract or other instrument filed with
Escrow Holder, or referred to herein. Escrow Holder’s duties hereunder shall be limited to the
safekeeping of all monies, instruments, or other documents received by it as Escrow Holder, and
for their disposition in accordance with the terms of this Agreement.
23. Entire Agreement, Waivers and Amendments.
(a) This Agreement shall be executed in two duplicate originals each of which
is deemed to be an original. This Agreement and its attached Exhibits shall constitute the entire
understanding and agreement of the parties.
(b) This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all (or any part of or any interest in) the Property. This Agreement and all
documents incorporated herein contain the entire understanding among the parties hereto relating
to the transactions contemplated herein and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written.
(c) All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the Buyer and the Seller, and all amendments hereto
must be in writing and signed by the appropriate authorities of the parties to be bound thereby.
This Agreement and any provisions hereof may be amended by mutual written agreement by the
Buyer’s Executive Director or designee and Seller’s City Manager or designee, subject to review
and approval by the Culver City Redevelopment Agency Board or City Council of the City of
Culver City as needed to comply with applicable law and internal policies and procedures. The
waiver by Buyer or Seller of any term, covenant, or condition herein contained shall not be a
waiver of such term, covenant, or condition on any subsequent breach.
(d) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. The signature page of this
Agreement may be detached from and added to any counterpart of this Agreement identical in
form.
24. Further Actions.
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The Buyer’s Executive Director or designee and the Seller’s City Manager or designee
are hereby authorized and directed to take such other and further actions, and sign such other and
further agreements and documents on behalf of the Buyer and the Seller, respectively, as may be
necessary or proper to effect the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
“Buyer”
CULVER CITY REDEVELOPMENT AGENCY, a
public body corporate and politic
Dated:________________________ By: _________________________________
John Nachbar
Executive Director
APPROVED AS TO FORM:
KANE, BALLMER & BERKMAN
By: ___________________________
Murray O. Kane
Agency General Counsel
[Signatures Continued on Following Page]
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“Seller”
CITY OF CULVER CITY, a municipal corporation
Dated:________________________ By: _________________________________
Christopher Armenta
Mayor
APPROVED AS TO FORM:
___________________________________
Carol A. Schwab
City Attorney
Agreement No.: _______
APN:___________
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Culver City, County of Los Angeles, State of California, located at
3846 Cardiff Avenue and described as follows:
[INSERT]
Also more commonly known as Assessor’s Parcel Numbers ____________________________