City of Culver City, California
Agenda Item Report
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Meeting Date: 02/22/2011 Item Number: J-1
JOINT CITY COUNCIL/REDEVELOPMENT AGENCY BOARD AGENDA ITEM:
Adoption of City Council and Redevelopment Agency Board Resolutions to (i)
Approve of Option Agreements Granting the City the Right to Purchase Agency-
Owned Property and (ii) Approve of Instruments Securing Agency Obligations
related to the Option Agreements and Certain Cooperation Agreements.
Contact Person/Dept.:
Sol Blumenfeld/Community Development
Todd Tipton/Community Development
Phone Number:
(310) 253-5700
(310) 253-5760
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 Notification: Meetings and Agendas – City Council (02/18/11) Meetings and
Agendas – Redevelopment Agency (02/18/11)
Department Approval:
Sol Blumenfeld: (02/18/11)
City Attorney Approval:
Carol Schwab: (by H. Baker)
Agency General Counsel Approval:
Murray Kane: (02/18/11)
Chief Financial Officer Approval
Jeff Muir:
City Manager/Executive Director Approval:
John M. Nachbar: (02/18/11)
RECOMMENDATION:
Staff recommends that both the City Council and the Redevelopment Agency Board
(Agency Board) adopt Resolutions (i) granting the City the right to purchase real
property from the Agency pursuant to Option Agreements; (ii) pledging the Agency’s
various accounts (e.g., operation accounts, investment accounts, etc.) as security for
certain Agency Obligations (defined below) pursuant to a Pledge of Accounts; (iii)
pledging to the City the right to receive payments under the Agency’s promissory
notes and the Agency’s rights under the trust deeds and other security instruments
securing those notes, and to the Agency’s rights to receive payments under other
agreements pursuant to a Pledge of Notes; (iv) pledging to the City the right to receive
rents and leases from Agency-owned property pursuant to a Deed of Trust, Security
Agreement and Fixture Filing (With Assignment of Rents); and (v) perfecting the
security interests to the City pursuant to a UCC with Attachment.
BACKGROUND:
In response to the Governor Brown’s proposal for the state wide elimination of
redevelopment agencies as of July 1, 2011, the City and Agency entered into a
Cooperation Agreement dated January 15, 2011, as amended by a First Amendment
to Cooperation Agreement dated February 22, 2011 (collectively as amended, the City of Culver City, California
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“January 2011 Cooperation Agreement”) pursuant to Section 33220 of the California
Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) (the
“CRL”) to aid and cooperate in the planning, undertaking, construction, and operation
of certain redevelopment projects set forth in the Revised List of Projects attached
thereto as Exhibit No. 1.
In addition, the City and Agency entered into a Cooperation Agreement of even date
herewith (the “February 2011 Cooperation Agreement”) to provide for implementation
and funding for certain publicly owned buildings (e.g., the Public Safety Headquarters
and the Veterans Memorial Building) as more particularly set forth in the List of
Projects attached thereto as Exhibit No. 1. Collectively, the January 2011 Cooperation
Agreement and the February 2011 Cooperation Agreement are referred to herein as
the “Cooperation Agreements” and the “Projects” means the projects as more
particularly set forth in the Exhibits attached to the Cooperation Agreements.
The Agency and City further desire to enter into further agreements for purposes of
redevelopment and to secure the Agency’s obligations thereunder and under the
Cooperation Agreements.
DISCUSSION:
The City Council have adopted Redevelopment Plans for the Culver City
Redevelopment Projects (collectively, the “Project Areas”), which results in the
allocation of taxes from the Project Areas to the Agency for purposes of
redevelopment.
The Agency owns certain real property described in Attachment No. 1 (collectively, the
“Property”) located in the Project Areas and is subject to the Redevelopment Plans.
The Agency and City have prepared Option Agreements, a form of which is attached
hereto as Attachment No. 4 (collectively, the “Option Agreements”), whereby Agency
will grant the City an option to purchase the Property described therein for the City’s
use for municipal purposes to benefit the Project Areas in conformity with the
Redevelopment Plans, which purposes may include the Projects described above or
other municipal purposes, including the construction and installation of public
infrastructure and facilities or the use of the Property to increase, improve and
preserve the community’s supply of low and moderate income housing.
Under the Option Agreements, the City shall acquire the right to purchase the real
property described therein for the nominal sum of $10.00 which would be exercised by
the City in the event of adverse state action, including the potential liquidation of the
Property without the Projects or other municipal purposes contemplated thereon. The
City’s purchase of the real property under the Option Agreement will occur on the
terms and conditions described in the Purchase and Sale Agreement attached to each
Option Agreement as Exhibit B (collectively, the “Purchase Agreements”). In the event
an as-yet-to-be-defined successor state-entity to the Agency were to take the Property
and not sell it to the City, both the Option Agreements and Purchase Agreements City of Culver City, California
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require the Agency and its successors-in-interest to pay liquidated damages
representing a reasonable amount, including the fair market value of the real property
and the “opportunity cost” for not completing the Projects or other municipal purposes.
The Agency and City desire to secure the Agency’s obligations under (i) the
Cooperation Agreements, (ii) the Option Agreements and the Purchase Agreements,
and (iii) the liquidated damages provisions therein (collectively, the “Agency
Obligations”) with the following instruments (collectively, the “Security Instruments”),
forms of which have been prepared by the Agency and City and are attached hereto:
• Pledge of Accounts – Pledges the Agency’s various accounts (e.g., operating
accounts, investments accounts, etc.), as more particularly described in the
schedule attached hereto as Attachment No. 2, to the City as security for the
Agency Obligations described above.
• Pledge of Notes – Pledges the Agency’s right to receive payments under
promissory notes and the Agency’s rights under the trust deeds and other
security instruments securing those notes as well as the right to receive
payments imposed through a DDA/OPA but for which there is no promissory
note, all as more particularly described in the schedule attached hereto as
Attachment No. 3, as security for the Agency Obligations described above.
• A Deed of Trust, Security Agreement and Fixture Filing (With Assignment of
Rents) – Assigns the Agency’s right to receive rent and leases pertaining to the
Property set forth in Attachment No. 1 as security for the Agency Obligations
described above.
• A Uniform Commercial Code (UCC-1) Fixture Filing with Attachment – Perfects
the City’s security interests granted by the Option Agreements, the Pledge of
Accounts, the Pledge of Notes and the Deed of Trust, Security Agreement and
Fixture Filing (With Assignment of Rents).
FISCAL ANALYSIS:
Collectively, the Projects, programs and obligations identified in the Cooperation
Agreements amount to approximately $435,820,000. All costs generally include hard
and soft costs and land acquisition where applicable.
ATTACHMENTS:
1. Schedule of Real Property
2. Schedule of Accounts
3. Schedule of Notes, Deeds of Trust and Agreements
4. Proposed Option Agreement
5. Proposed Pledge of Accounts City of Culver City, California
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6. Proposed Pledge of Notes
7. Proposed Deed of Trust, Security Agreement and Fixture Filing (With
Assignment of Rents)
8. Proposed UCC-1 With Attachment
9. Proposed City Council Resolution
10. Proposed Redevelopment Agency Resolution
MOTIONS:
That the City Council Adopt a Resolution that:
1. Approves the form of Option Agreement; and
2. Approves the form of Pledge of Accounts; and
3. Approves the form of Pledge of Notes; and
4. Approves the form of Deed of Trust, Security Agreement and Fixture Filing
(With Assignment of Rents); and
5. Approves the form of UCC-1 With Attachment.
6. Authorize the City Attorney to review/prepare the necessary documents related
to items 1-5 above; and,
7. Authorize the Mayor to execute such documents related to items 1-6 above on
behalf of the City.
That the Redevelopment Agency Board Adopt a Resolution that:
1. Approves the form of Option Agreement; and
2. Approves the form of Pledge of Accounts; and
3. Approves the form of Pledge of Notes; and
4. Approves the form of Deed of Trust, Security Agreement and Fixture Filing
(With Assignment of Rents); and
5. Approves the form of UCC-1 With Attachment.
6. Authorize the Agency General Counsel to review/prepare the necessary
documents related to items 1-5 above; and,
7. Authorize the Executive Director to execute such documents related to items 1-
6 above on behalf of the Agency.
MEETING DATE: 02/22/11
AGENDA ITEM: JOINT CITY COUNCIL/REDEVELOPMENT AGENCY
BOARD AGENDA ITEM: Adoption of City Council
and Redevelopment Agency Board Resolutions to (i)
Approve of Option Agreements Granting the City the
Right to Purchase Agency-Owned Property and (ii)
Approve of Instruments Securing Agency
Obligations related to the Option Agreements and
Certain Cooperation Agreements.
ATTACHMENTS
Item Description Pages
1
2
3
4
5
6
7
8
9
10
Schedule of Real Property
Schedule of Accounts
Schedule of Notes, Deeds of Trust and
Agreements
Proposed Option Agreement
Proposed Pledge of Accounts
Proposed Pledge of Notes
Proposed Deed of Trust, Security Agreement
and Fixture Filing (With Assignment of Rents)
Proposed UCC-1 With Attachment
Proposed City Council Resolution
Proposed Redevelopment Agency Resolution
1-19
20
21-51
52-84
85-93
94-102
103-140
141-149
150-155
156-161 Page 1 of 161
Attachment No. 1 Proposed Schedule of Real Property
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Attachment No. 2 Proposed Schedule of Accounts
Account Name/Financial Institution Account Number Balance as of 2-18-11*
1 Union Bank of California No. XXXXXX1631 $24,005,810.10California
State Treasurer,
915 Capitol Mall Room #106, Sacramento, CA 95814
2 Bank of America RDA-LAIF No. XX-X9-020 $15,768,448.93California
State Treasurer,
915 Capitol Mall Room #106, Sacramento, CA 95814
3 Bank of America-RDA MAIN ACCOUNT No. XXXXX-X0362 $5,551,724.06
Capitol Mall Suite 1555, Sacramento, CA 95814
4 Bank of America RDA-LAIF No. XX-X9-072 $9,692,957.51
555 Capitol Mall Suite 1555, Sacramento, CA 95814
5 Fidelity Investments Institutional Services Company No. XXXXXXX1768 $57,239.13
82 Devonshire Street, Boston, MA 02109
6 Fidelity Investments Institutional Services Company No. XXXXXXX1750 $1,107,789.21
82 Devonshire Street, Boston, MA 02109
*The actual amounts may vary depending on deposits in transit and checks under clearance.
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Attachment No. 3 Proposed Schedule of Notes, Deeds of Trust and Agreements
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Attachment No. 4 Proposed Option Agreement
OPTION AGREEMENT
(Grant of Option by Agency in favor of City for the Purchase of Agency Real Property)
THIS OPTION AGREEMENT (this “Agreement”) is entered into this day of
February, 2011, by and between the CITY OF CULVER CITY (the “City”) and the CULVER
CITY REDEVELOPMENT AGENCY (the “Agency”), with reference to the following facts:
A. The Agency owns, or during the term of this Agreement, will own, certain real
property described in Exhibit A attached hereto (the “Property”).
B. The Agency has prepared the Redevelopment Plan for the Culver City
Redevelopment Project (the “Project Area”), which results in the allocation of taxes from the
Project Area to the Agency for purposes of redevelopment.
C. The Property is located in [insert if applicable - component Project Area No.
__ or Project Area] and is subject to the Redevelopment Plan for that Project Area.
D. The Agency desires to grant the City an option to purchase the Property from the
Agency and the City wishes to acquire the right to purchase the Property from the Agency under
the terms contained herein, for the City’s use for municipal purposes to benefit the Project Area
in conformity with the Redevelopment Plan, which purposes may include [insert description of
any projects listed in the Cooperation Agreement that are intended for this Property] or
other municipal purposes, including the construction and installation of public infrastructure and
facilities or the use of the Property to increase, improve and preserve the community’s supply of
low and moderate income housing.
NOW, THEREFORE, for good and valuable consideration paid by the City, receipt and
sufficiency of which is acknowledged by the Agency, the parties hereto do mutually agree as
follows:
1. Grant of Option. The Agency hereby grants the City, or its nominee, the option to
purchase the Property described in Exhibit A attached hereto on the terms and conditions set
forth in this Agreement. The purchase and sale of the Property on exercise of this option shall
be on the terms and conditions set forth in the Purchase and Sale Agreement attached as
Exhibit B (the “Purchase Agreement”).
2. Option Consideration. In consideration of the Agency’s grant of the option to the City,
upon the execution and delivery of this Agreement, the City shall pay to the Agency, in
immediately available funds, the sum of Ten Dollars ($10.00), which shall be deemed
consideration solely for the granting of the option by the Agency. On expiration of the option
term, the Agency shall retain all option consideration. If the option is exercised, the option
consideration shall not be credited against the purchase price of the Property.
3. Term of Option. The initial term of the option shall begin on the Effective Date and
shall terminate on the latter of (a) the thirtieth (30th) anniversary of the Effective Date and (b)
[insert the expiration date of the time limit on the effectiveness of the Redevelopment
Plan for the (component) Project Area containing the Property]. The term of the option may
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be extended for an additional thirty (30) years, or a shorter period agreed to by the parties, upon
the payment by the City to the Agency prior to the expiration of the initial option term, of an
extension fee in the sum of Ten Dollars ($10.00).
4. Exercise of Option. If the City is not in default under this Agreement and all conditions to
the exercise of the option are satisfied or are waived in writing by the Agency, the City may
exercise the option in accordance with this section. The option shall be exercised by City, if at
all, in the following manner. Prior to the expiration of the term of the option, the City shall deliver
written notice (the “Exercise Notice”) to the Agency in accordance with the notice provisions of
Section 18. The Exercise Notice shall affirmatively state that the City exercises the option
without condition or qualification. Within three (3) business days after exercise of the option, the
parties shall execute and deliver the Purchase Agreement and shall deposit the funds and
documents in escrow that the Purchase Agreement requires to be deposited when the Purchase
Agreement is executed.
5. Purpose. Pursuant to Section 33220 of the California Community Redevelopment Law
(Health and Safety Code Section 33000 et seq.), certain public bodies, including the City may
aid and cooperate in the planning, undertaking, construction, or operation of redevelopment
projects. The purpose of this Agreement is to grant the City the right, as set forth herein, to
acquire the Property from the Agency for municipal purposes to benefit the Project Area in
conformity with the Redevelopment Plan, which purposes may include [insert description of
any projects listed in the Cooperation Agreement that are intended for this Property] or
other municipal purposes, including the construction and installation of public infrastructure and
facilities or the use of the Property to increase, improve and preserve the community’s supply of
low and moderate income housing.
6. Covenants and Warranties of the Agency Concerning the Property. The Agency
covenants, warrants, and represents to the City that all the covenants, warranties, and
representations set forth in Section 14 of the Purchase Agreement are true and correct.
7. Condition of Title. As of the Effective Date of this Agreement, the Agency has
delivered to the City and the City has reviewed and approved a current preliminary report on the
Property prepared by [insert name of title company], together with copies of all documents
identified as exceptions in the report (collectively, the “Preliminary Report”). The City hereby
approves all of the exceptions shown in the Preliminary Report. [Modify this Section as
needed to indicate which exceptions must be removed on or before closing under the
Purchase Agreement.] The Agency shall consult with the City prior to placing or permitting any
additional liens or encumbrances on the Property or materially modifying the existing
improvements on the Property or making any additional improvements to the Property.
8. City’s Right to Investigate the Property. At any time and from time to time during the
term of the option, the City may enter the Property for purposes of inspection, survey, tests,
design of improvements, and other actions reasonably related to the investigation by the City of
the suitability of the Property for the City’s municipal purposes. The City shall use care and
consideration in connection with any of its inspections. The City shall indemnify, defend and
hold the Agency 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 the City’s, and/or the City’s agents, contractors and/or subcontractors directly
resulting from such entry or activities upon the Property.
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9. Memorandum of Option to be Recorded. Concurrently with the execution of this
Agreement, Agency and City shall execute, acknowledge and cause to be recorded in the
Official Records of Los Angeles County, California, the Memorandum of Option Agreement in
the form attached hereto as Exhibit C. Upon the expiration or earlier termination of this
Agreement as provided herein, the parties agree to execute a quitclaim deed or other
termination instrument in order to cause the memorandum to be terminated and removed of
record.
10. Transferability of Option. The City may not assign this option without the consent of the
Agency, which consent shall not be unreasonably withheld. An assignment approved by the
Agency shall be effective only if the assignee assumes all the duties and obligations of the City
under this Agreement in a writing duly executed and delivered to the Agency.
11. Broker. The City and the Agency 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.
12. Risk of Loss. If material physical loss or damage occurs to the Property during the
option term but before the City’s exercise of the option, the City may elect to terminate this
option by delivering written notice to the Agency within thirty (30) days after discovering such
loss or damage, and on such election the Agency shall immediately refund to the City the option
consideration paid to the Agency.
13. Time of Essence. Time is of the essence of this Agreement and is a material term of
this Agreement.
14. Failure to Exercise. If the City does not exercise the option as required by this
Agreement before expiration of the term of the option, the option and all rights of the City shall
automatically and immediately terminate without notice and the City shall have no interest in the
Property under this Agreement.
15. Liquidated Damages. FROM THE NATURE OF THIS TRANSACTION, IT IS
IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES THAT
THE CITY WOULD SUSTAIN IF THE AGENCY BREACHES ITS OBLIGATION TO SELL THE
PROPERTY TO THE CITY UPON THE CITY’S EXERCISE OF THE OPTION AS REQUIRED
BY THIS AGREEMENT. THE IMPRACTICABILITY AND DIFFICULTY OF FIXING ACTUAL
DAMAGES IS CAUSED BY, WITHOUT LIMITATION, THE FACT THAT THE PROPERTY IS
UNIQUE AND IS PARTICULARLY SITUATED FOR THE PURPOSE FOR WHICH IT IS BEING
ACQUIRED BY THE CITY. GIVEN THE FOREGOING FACTS, AMONG OTHERS, THE
AGENCY AND THE CITY AGREE THAT LIQUIDATE DAMAGES IN THE AMOUNT OF
[______________________ DOLLARS ($________)] ARE A REASONABLE ESTIMATE OF
THE DAMAGES THAT WOULD BE SUFFERED BY THE CITY AND SAID LIQUIDATED
DAMAGES ARE PARTICULARLY APPROPRIATE FOR THIS TRANSACTION. THE AGENCY
AND THE CITY AGREE THAT SAID LIQUIDATED DAMAGES MUST BE PAID IN THE EVENT
OF THE AGENCY’S BREACH OF ITS OBLIGATION TO SELL THE PROPERTY TO THE CITY
UPON THE CITY’S EXERCISE OF THE OPTION AS REQUIRED BY THIS AGREEMENT,
DESPITE ANY WORDS OR CHARACTERIZATIONS PREVIOUSLY USED OR CONTAINED
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IN THIS AGREEMENT IMPLYING ANY CONTRARY INTENT. THE PAYMENT OF SUCH
AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF CALIFORNIA CIVIL CODE §3275 OR §3369 BUT IS INTENDED
TO CONSTITUTE LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE
§§1671, 1676 AND 1677.
WE ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION:
CITY’S INITIALS: ______________ AGENCY’S INITIALS: _______________
16. City’s Remedies upon Agency’s Failure to Sell Property. If the Agency fails to sell the
Property to the City upon the City’s exercise of the option as required by this Agreement, the
City shall have the right in its sole discretion, without the necessity of giving notice or
opportunity to cure, to institute legal action in the Superior Court of the County of Los Angeles,
State of California, in any other appropriate court of that county, or in the United States District
Court for the Central District of California to cure, correct or remedy such default, to recover
damages for such default, or to obtain any other legal or equitable relief consistent with the
purpose of this Agreement, including but not limited to:
(a) an action for specific performance of the Agency’s obligation to sell the Property
to the City under the terms of this Agreement and the Purchase Agreement; or
(b) enforcement of the liquidated damages provision of this Agreement.
If the Agency defaults in its obligation to pay liquidated damages under this Agreement, the City
may foreclose on any security and exercise any other rights with respect to any security, all in
such order and manner as the City elects in its absolute discretion.
The rights and remedies of the City are cumulative, and the exercise by the City of one or more
of such rights or remedies shall not preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other default by the Agency. No waiver
of any default shall affect any default other than the default expressly waived, and any such
waiver shall be operative only for the time and to the extent stated.
17. Successors and Assigns. This Agreement shall be binding on and shall inure to the
benefit of all successors and assigns of the parties, whether by agreement or operation of law.
18. Notices. Formal notices, demands and communications between the Agency and
the City shall be sufficiently given if dispatched by registered or certified mail, postage prepaid,
return receipt requested, to the addresses 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 as provided in this Section. 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.
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To the Agency: Culver City Redevelopment Agency
Attn: Executive Director
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
To the City: City of Culver City
Attn: City Manager
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
19. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original, but all of
which together shall constitute one agreement binding on the Agency and the City.
20. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference.
21. Conflicts 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
personal interests or the interests of any corporation, partnership or association in which he is,
directly or indirectly, interested.
22. 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.
23. 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
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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.
24. 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 City and the Agency, 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
Agency’s Executive Director or designee and the City’s City Manager or designee, subject to
review and approval by the Board of the Culver City Redevelopment Agency or City Council of
the City of Culver City as needed to comply with applicable law and internal policies and
procedures. The waiver by the City or the Agency of any term, covenant, or condition herein
contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.
25. Further Actions. The Agency’s Executive Director or designee and the City’s City
Manager or designee are authorized and directed to take such other and further actions, and
sign such other and further agreements and documents on behalf of the Agency and the City,
respectively, as may be necessary or proper to effect the terms of this Agreement.
26. Effective Date. This Agreement shall be deemed effective on [insert the date the
Resolution was approved] (the “Effective Date”).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth opposite their signatures below.
Dated: CITY OF CULVER CITY
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By:
Christopher Armenta, Mayor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel
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EXHIBIT A
The “Property”
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Exhibit B
Purchase and Sale Agreement
AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
This AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (the “Agreement”) dated [insert date Agreement is executed], is entered
into by and between the CULVER CITY REDEVELOPMENT AGENCY (the “Seller”) and the
CITY OF CULVER CITY (the “Buyer”). Buyer and Seller are each a “Party” and are collectively
the “Parties.”
1. Purpose. The Property that is the subject of this Agreement is located in
[insert name of Project Area] and is subject to the Redevelopment Plan for that Project Area
adopted by the City Council of the City of Culver City on [insert date] by ordinance No.
_______. The purpose of this Agreement is to set forth the terms and conditions by which Seller
shall sell to Buyer the Property as hereinafter defined, for Buyer’s use solely for municipal
purposes to benefit the Project Area in conformity with the Redevelopment Plan, which
purposes may include [insert description of any projects listed in the Cooperation
Agreement that are intended for this Property] or other municipal purposes, including the
construction and installation of public infrastructure and facilities or the use of the Property to
increase, improve and preserve the community’s supply of low and moderate income housing.
The City’s agreement to use the Property for the purpose described in this section is a material
inducement to the Agency to sell the Property to the City, without which the Agency would not
enter into this Agreement.
2. Purchase and Sale. For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, 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.
3. Property. The Property to be acquired by Buyer from Seller under this
Agreement consists of that certain real property located in the City of Culver City, California,
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described in Exhibit A attached hereto (“Property”). For purposes of this Agreement, the term
“Property” shall mean and include the above-referenced parcel(s) 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.
4. Acquisition.
a. Purchase Price. The monetary purchase price to be paid by Buyer to
Seller for the Property and all Improvements in the condition provided below shall be Ten
Dollars ($10.00) (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
set forth in this Agreement, neither Seller nor any of Seller’s agents, contractors, consultants,
attorneys or representatives have made or 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.
5. Payment of Purchase Price. The Purchase Price for the Property shall be
payable by Buyer at the Close of Escrow hereunder as follows:
a. Cash Purchase Price. Full payment of the Purchase Price ($10.00) shall
be made at the Close of Escrow (defined below) in the form of readily available funds.
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 6.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 11 below. All escrow, recording and
title insurance costs shall be paid by Seller and Buyer in accordance with Paragraph 11 below.
6. 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
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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 6.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 the date
that is thirty (30) days after the execution of this Agreement, unless extended in writing by the
parties (“Closing Date”).
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.
7. 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. Unless otherwise agreed by the City, 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 7. Any liens, encumbrances, easements, restrictions, conditions, covenants,
rights, rights-of-way, or other matters affecting the Approved Condition of Title which may
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appear of record or be revealed after the date of the Preliminary Title Report described in
Paragraph 8. 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.
8. 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:
(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) a copy of the most recent tax bill relating to the
Property; (iii) 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
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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 14 shall be true and correct as of the Closing Date.
(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) Purchase Price. Buyer shall have delivered into Escrow the
Purchase Price in readily available funds;
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(2) 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
(3) 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.
9. 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.
b. Removal of Liens. Sufficient funds to pay all demands of lienholders with
valid claims as of the Closing Date, which have not been approved by Buyer to survive the
Close of Escrow.
10. 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. Certificate of Acceptance. A Certificate of Acceptance, duly executed by
Buyer, acknowledged and in recordable form, to be appended to the Grant Deed.
11. 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. 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.
12. 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.
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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 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.
13. 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 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 directed by the parties.
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. When issued, deliver the Title Policy to Buyer.
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e. Pay demands of existing lienholders. Pay all demands of lienholders with
valid claims as of the Closing Date, which have not been approved by Buyer to survive the
Close of Escrow.
14. 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
Buyer’s obligations hereunder):
a. Validly Existing. Seller is a public body, corporate and politic, 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 is
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.
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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 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 14 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 for such period
permitted by applicable law (the “Survival Period”).
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15. 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 municipal corporation, duly formed, validly existing and in good
standing under the laws of the State of California.
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.
f. 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.
g. 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 for the Survival Period.
16. 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
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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
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.
17. 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
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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 the Seller: Culver City Redevelopment Agency
Attn: Executive Director
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
To the Buyer: Culver City
Attn: City Manager
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
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.
18. 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.
19. Assignment. Buyer shall not be entitled to assign this Agreement without the
prior written consent of Seller, which consent shall not be unreasonably withheld.
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20. Liquidated Damages. FROM THE NATURE OF THIS TRANSACTION, IT IS
IMPRACTICABLE AND EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES THAT
BUYER WOULD SUSTAIN IF SELLER BREACHES ITS OBLIGATION TO SELL THE
PROPERTY TO BUYER AS REQUIRED BY THIS AGREEMENT. THE IMPRACTICABILITY
AND DIFFICULTY OF FIXING ACTUAL DAMAGES IS CAUSED BY, WITHOUT LIMITATION,
THE FACT THAT THE PROPERTY IS UNIQUE AND IS PARTICULARLY SITUATED FOR
THE PURPOSE FOR WHICH IT IS BEING ACQUIRED BY BUYER. GIVEN THE FOREGOING
FACTS, AMONG OTHERS, SELLER AND BUYER AGREE THAT LIQUIDATE DAMAGES IN
THE AMOUNT OF [______________________ DOLLARS ($________)] ARE A
REASONABLE ESTIMATE OF THE DAMAGES THAT WOULD BE SUFFERED BY BUYER
AND SAID LIQUIDATED DAMAGES ARE PARTICULARLY APPROPRIATE FOR THIS
TRANSACTION. SELLER AND BUYER AGREE THAT SAID LIQUIDATED DAMAGES MUST
BE PAID IN THE EVENT OF SELLER’S BREACH OF ITS OBLIGATION TO SELL THE
PROPERTY TO BUYER AS REQUIRED BY THIS AGREEMENT, DESPITE ANY WORDS OR
CHARACTERIZATIONS PREVIOUSLY USED OR CONTAINED IN THIS AGREEMENT
IMPLYING ANY CONTRARY INTENT. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED
DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING
OF CALIFORNIA CIVIL CODE §3275 OR §3369 BUT IS INTENDED TO CONSTITUTE
LIQUIDATED DAMAGES TO SELLER UNDER CALIFORNIA CIVIL CODE §§1671, 1676 AND
1677.
WE ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION:
BUYER’S INITIALS: ______________ SELLER’S INITIALS: _______________
21. 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 have the right to pursue any relief available to it at law or in equity, including
but not limited to:
(i) an action for specific performance of Seller’s obligation to sell the
Property to Buyer under the terms of this Agreement; or
(ii) enforcement of the liquidated damages provision of this
Agreement.
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If Seller defaults in its obligation to pay liquidated damages under this Agreement, Buyer may
foreclose on any security and exercise any other rights with respect to any security, all in such
order and manner as Buyer elects in its absolute discretion.
The rights and remedies of Buyer are cumulative, and the exercise by Buyer of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other default by Seller. No waiver of
any default shall affect any default other than the default expressly waived, and any such waiver
shall be operative only for the time and to the extent stated.
a. 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.
22. 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.
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. 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.
e. 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
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expense (including court costs and reasonable attorneys’ fees) incurred by the other party as a
result of a breach of this representation.
f. 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.
g. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference.
h. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
i. 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.
j. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the successors and assigns of the parties hereto.
k. 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 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.
l. 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.
m. 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.
n. 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.
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o. 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.
23. 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.
24. 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 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.
25. Entire Agreement, Waivers and Amendments.
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(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 Board of the Culver City Redevelopment Agency 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.
26. Further Actions.
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.
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BUYER
Dated: CITY OF CULVER CITY
By:
Christopher Armenta, Mayor
[signatures continue on next page]
SELLER
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
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KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel
Exhibit A – Legal Description
Page 79 of 161
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT C
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk, Culver City
9770 Culver Blvd.
Culver City, CA 90232
______________________________________________________________________
GOVERNMENT BUSINESS
Free Recording Requested
(Govt. Code §27383)
APN:________________
MEMORANDUM OF OPTION AGREEMENT
1. Parties; Property; and Redevelopment Plan. This memorandum of option
agreement is entered into by the CULVER CITY REDEVELOPMENT AGENCY (“Agency”) and
CITY OF CULVER CITY (“City”) concerning real property located in the City of Culver City and
County of Los Angeles, State of California, as more fully described in the attached Exhibit 1 (the
“Property”).
2. Memorandum. For good and valuable consideration from the City, the receipt
and sufficiency of which are acknowledged by the Agency, the Agency, as current fee owner of
the Property, has entered into an option agreement with the City dated for reference purposes
February , 2011 (the “Option Agreement”) permitting the City to purchase the
Property from the Agency under the terms and conditions thereof on or before the latter of (a)
the thirtieth (30th) anniversary of the Option Agreement or (b) [insert the expiration date of
the time limit on the effectiveness of the Redevelopment Plan for the Project Area
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containing the Property], as such term may be extended under the terms of the Option
Agreement.
3. Not Complete Summary. This instrument is not a complete summary of the
Option Agreement. Provisions herein shall not be used in interpreting the Option Agreement.
4. Purpose. This instrument is prepared for recordation purposes only and shall not
alter or affect in any way the rights and obligations of the Agency and the City under the Option
Agreement. In the event of any inconsistency between the terms, conditions, provisions and
covenants of this instrument and the Option Agreement, the terms, conditions and covenants of
the Option Agreement shall prevail.
The parties hereto have executed this instrument on the dates specified immediately
beside their respective signatures. This document may be executed and acknowledged before
a notary public with counterpart signature and acknowledgment pages, each of which shall be
deemed an original and which, when taken together, shall constitute the fully-executed
instrument.
Dated: CITY OF CULVER CITY
By:
Christopher Armenta, Mayor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel
Page 82 of 161
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Exhibit 1 to Memorandum of Option Agreement
Legal Description of Property
The land is situated in the State of California, County of Los Angeles and is described as
follows;
[to be inserted]
APN_________________
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State of California )
)
County of ___________ )
On ______________________ before me, ___________________________, a Notary Public,
personally appeared _________________________________, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________ (Seal)
State of California )
)
County of ___________ )
On ______________________ before me, ___________________________, a Notary Public,
personally appeared _________________________________, who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________________________ (Seal) Page 85
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Attachment No. 5 Proposed Pledge of Accounts
PLEDGE AGREEMENT
[agreement creating a security interest in the Agency’s promissory notes and other evidence of
indebtedness and in the security given to the Agency for those obligations]
THIS PLEDGE AGREEMENT (this “Agreement”) is entered into this day of
February, 2011, by and between the CITY OF CULVER CITY (the “City”) and the CULVER
CITY REDEVELOPMENT AGENCY (the “Agency”), with reference to the following facts:
E. The City Council of the City of Culver City (the “City Council”) adopted
Redevelopment Plans for the Culver City Redevelopment Projects (collectively, the “Project
Areas”), which results in the allocation of taxes from the Project Areas to the Agency for
purposes of redevelopment.
F. Pursuant to Section 33220 of the California Community Redevelopment Law
(Health and Safety Code Section 33000 et seq.) (the “CRL”), the City and Agency have entered
into a Cooperation Agreement dated January 15, 2011, as amended by a First Amendment to
Cooperation Agreement dated February 22, 2011 (collectively as amended, the “January 2011
Cooperation Agreement”) pursuant to Section 33220 of the California Community
Redevelopment Law (Health and Safety Code Section 33000 et seq.) to provide for
implementation of certain projects set forth in the Revised List of Projects attached thereto as
Exhibit No. 1.
G. In addition, the City and Agency entered into a Cooperation Agreement dated
February 22, 2011 (the “February 2011 Cooperation Agreement”) to provide for
implementation and funding for certain publicly-owned buildings (e.g., the Public Safety
Headquarters and the Veterans Memorial Building) as more particularly set forth in the List of
Projects attached thereto as Exhibit No. 1. Collectively, the January 2011 Cooperation
Agreement and the February 2011 Cooperation Agreement are referred to herein as the
“Cooperation Agreements” and the “Projects” means the projects as more particularly set
forth in the Exhibits attached to the Cooperation Agreements.
H. The City and the Agency have entered into or will enter into the Option
Agreements described in Exhibit 1 (collectively, the “Option Agreements”) whereby the Agency
grants the City an option to purchase the real property described therein. The City’s purchase of
the real property under the Option Agreement will occur on the terms and conditions described
in the Purchase and Sale Agreement attached to each Option Agreement as Exhibit ‘B’
(collectively, the “Purchase Agreements”).
I. The City and the Agency desire to secure the Agency’s obligations under the
Cooperation Agreements, the Option Agreements and the Purchase Agreements by the
evidences of indebtedness and the promissory notes secured by deeds of trust described in
Exhibit 2, which are to be pledged as collateral for such obligations.
NOW, THEREFORE, the parties hereto do mutually agree as follows:
27. Pledge. In consideration of any financial accommodations given or to be given or
continued to the Agency by the City, and as collateral security for the payment of any Page 86
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indebtedness, obligation, or liability of the Agency to the City, including but not limited to the
obligations of the Agency to the City under the Cooperation Agreement, the Option Agreements
and the Purchase Agreements, the Agency assigns, transfers to, and deposits with the City the
evidences of indebtedness, promissory notes, deeds of trust, assignments of rents and leases,
and security agreements described in Exhibit 2 (the “Collateral”), delivered by the Agency to
the City, or currently held by the Agency, and any additional property as may later be delivered
by the Agency to the City during the existence of this Pledge Agreement.
28. Warranties. The Agency warrants and represents the following with respect to the
Collateral:
a. The Agency is the absolute owner of the Collateral and the obligations described
in the documents that compose the Collateral are due and payable as stated in those
documents, and the obligors under the Collateral are not now in default in any respect as to any
obligations under the Collateral, except as previously disclosed to the City.
b. The Collateral is not subject to any prior assignment, claim, lien, or security
interest, and the Agency will not make any further assignment of the Collateral or create any
further security interest in the Collateral, and will not permit its rights in the Collateral to be
reached by attachment, levy, garnishment, or other judicial process.
c. The obligations of the obligors under the Collateral are not subject to any claim
for credits, allowances, or adjustments, excepted as previously disclosed to the City.
d. No notice of the bankruptcy or insolvency of any obligor under the Collateral has
been received by the Agency. On the Agency’s receipt of any such notice, the Agency will
immediately give the City written notice.
e. The Agency has maintained and will continue to maintain accurate and complete
records and accounts of all obligations given as the Collateral, and agrees to permit the City to
inspect these records and accounts. The Agency further agrees to submit statements of these
accounts to the City in any reasonable form prescribed by the City.
29. Power of Sale. The power of sale and all other powers granted by the Agency in this
Pledge Agreement will apply to all collateral of any kind, including all moneys, negotiable
instruments, bonds, stocks, and commercial paper, credits, choses in actions, claims or
demands of every kind at any time during the existence of this Pledge Agreement deposited
with or in the possession or control of the City or any of its agents.
30. Substitution of Collateral. If, with the consent of the City, the Agency substitutes or
exchanges other collateral, including but not limited to securities or instruments, in the place of
the Collateral described in Paragraph 1, then all of the rights of the City and all of the obligations
of the Agency under this Pledge Agreement will be applicable to the substituted or exchanged
collateral, and will be the same in all respects as the rights and obligations concerning the
Collateral originally pledged.
31. Collection of Collateral. The City will have the right to notify the obligor(s) under the
Collateral to make payment directly to it and to take control of all the proceeds of the Collateral,
or any part of it, and to enforce any of the obligations of the obligor(s) under the Collateral. The
City may exercise the rights described in this Paragraph at any time, whether or not the Agency Page 87
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is then in default under this Pledge Agreement and whether or not the Agency had been making
collections on the Collateral. Until such time as the City elects to exercise these rights by
mailing written notice to the Agency, the Agency is authorized to collect payments and to
enforce all rights under the Collateral concerning current and past-due payments, but is not
authorized to collect any prepayments, fire insurance proceeds, or condemnation awards
without the prior written consent of the City. The costs of collection and enforcement, including
attorneys’ fees and legal expenses, will be at the expense of the Agency. The Agency will
reimburse any costs or expenses, including attorneys’ fees and legal expenses, that are
incurred by the City.
32. Fire Insurance. All fire insurance required to be maintained by the obligors under
the terms of the Collateral will be written with loss payable to the City. The policies, or
certificates evidencing the policies, will be furnished to the City in a form satisfactory to it. If the
obligors and the Agency fail to pay any premium on any such insurance, the City may, but will
not be required to, pay the premium and may add the amount of the premium to the debt
secured by this Pledge Agreement. The Agency appoints the City to be its attorney-in-fact to
endorse any draft or check that may be payable to the Agency in order to collect the proceeds
of any such insurance or any condemnation award, and any balance of proceeds remaining
after payment in full of all amounts secured by this Pledge Agreement will be paid to the
Agency. The amount collected under any fire or any other insurance policy and any
condemnation award may be applied by the City to any indebtedness secured by this Pledge
Agreement, in any order that the City may determine, or, at the option of the City, any or all of
the entire amount collected may be released to the Agency.
33. Default. The Agency will be in default under this Pledge Agreement on the
occurrence of any of the following events or conditions:
a. Default in the payment or performance of any of the obligations, covenants, or
liabilities secured by this Pledge Agreement
b. Any warranty, representation, or statement made or furnished to the City by or on
behalf of the Agency proves to have been false in any material respect when made or furnished.
c. Death, dissolution, termination of existence, insolvency, business failure,
appointment of a receiver for any part of the Collateral, assignment for the benefit of creditors,
or the commencement of any proceeding under any bankruptcy or insolvency law by or against
the Agency.
d. Any default by any obligor(s) under the terms of the Collateral.
8. Remedies. On the occurrence of any event of default, and at any later time, the City
may declare all the obligations and liabilities of the Agency under this Pledge Agreement to
become immediately due and payable, notwithstanding any credit or extension of time allowed
to the Agency by any instrument evidencing any of these liabilities. In addition, the City may
proceed to enforce payment and may exercise any rights and remedies provided by the
California Commercial Code, as well as other rights and remedies either at law or in equity
possessed by the City, including but not limited to the following rights:
a. On notice to the Agency as required by the California Commercial Code, the City
may sell or otherwise dispose of the Collateral. The sale may be as a unit or in parts, at any Page 88
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time and place and on any terms, provided the City acts in good faith and in a commercially
reasonable manner. Out of the proceeds of any sale, the City may retain an amount equal to the
indebtedness secured by this Pledge Agreement, plus the amount of the expenses of the sale,
and will pay any balance of the proceeds of any sale to the Agency. The Agency agrees to pay
to the City, on demand, whatever balance may be owing on the indebtedness secured by this
Pledge Agreement after the sale of the Collateral and the application of the proceeds as
provided by this Paragraph and as required by law.
b. On notice as required by the California Commercial Code, the City may accept
the Collateral in satisfaction of all obligations of the Agency secured by this Pledge Agreement.
If the Agency or other person entitled to receive notice objects in writing within twenty (20) days
after notice was sent, the City must dispose of the Collateral under the terms and conditions
provided in paragraph a. above, or as otherwise authorized by law. In the absence of any
written objection, the City may accept the collateral, without any right of redemption, in full
satisfaction of the Agency’s obligations and indebtedness to the City.
9. Waiver of Rights by the Agency. The Agency waives any right to require the City to
(1) proceed against any person, (2) proceed or exhaust any collateral, or (3) pursue any other
remedy in the City’s power. The Agency also waives any defense arising from any disability or
other defense of any other person. The Agency authorizes the City to (1) take and hold security,
other than the Collateral, for the payment of the indebtedness or any part of the indebtedness,
and exchange, enforce, waive, and release the Collateral or any part of it or any other security,
and (2) release or substitute any other pledgor.
10. Assignment. This assignment of a security interest in the Collateral will be for the
benefit of the City and its successors or assigns. In the event that the City assigns, endorses,
sells, or transfers to any other person or entity the Collateral, or any other notes, evidence of
indebtedness, bonds, stocks or other securities deposited under this Pledge Agreement or
secured or intended to be secured by this Pledge Agreement, or any part of it, the assignment
or transfer will automatically constitute an assignment and transfer of this Pledge Agreement
and all of the rights granted by this Pledge Agreement. The assignee, endorsee, transferee, or
successor of the City will have all of the rights given to the City in accordance with the terms of
this Pledge Agreement.
11. Satisfaction of Obligation. On the satisfaction of all obligations of the Agency to the
City, the City will return to the Agency the Collateral and all other documents and securities
given as collateral under this Pledge Agreement, and will endorse all instruments to the Agency
and give an assignment of all of the Collateral.
12. Payments and Notices. All payments and notices under this Pledge Agreement or
otherwise required by law will be made to the City and the Agency at the addresses set forth
below. All notices, demands and communications shall be sufficiently given if dispatched by
registered or certified mail, postage prepaid, return receipt requested, to the addresses 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 as provided in this
Section. 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 Page 89
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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.
To the Agency: Culver City Redevelopment Agency
Attn: Executive Director
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
To the City: City of Culver City
Attn: City Manager
9770 Culver Blvd.
Culver City, CA 90232
13. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original, but all of
which together shall constitute one agreement binding on the Agency and the City.
14. Applicable Law. This Pledge Agreement will be construed in accordance with
Uniform Commercial Code as enacted in California and other applicable laws of the State of
California.
15. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference.
16. Conflicts 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
personal interests or the interests of any corporation, partnership or association in which he is,
directly or indirectly, interested.
17. Severability. If any provision of this Pledge Agreement shall be held invalid, illegal or
unenforceable in any respect 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 construed as if the invalid, illegal, or unenforceable provision had never
been contained in it. Page 90
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18. 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.
19. 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 Collateral. 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 City and the Agency, 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
Agency’s Executive Director or designee and the City’s City Manager or designee, subject to
review and approval by the Board of the Culver City Redevelopment Agency or City Council of
the City of Culver City as needed to comply with applicable law and internal policies and
procedures. The waiver by the City or the Agency of any term, covenant, or condition herein
contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.
19. Further Actions. The Agency’s Executive Director or designee and the
City’s City Manager or designee are authorized and directed to take such other and further
actions, and sign such other and further agreements and documents on behalf of the Agency
and the City, respectively, as may be necessary or proper to effect the terms of this Agreement.
20. Effective Date. This Agreement shall be deemed effective on [insert the date
the Resolution was approved] (the “Effective Date”).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth opposite their signatures below.
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Dated: CITY OF CULVER CITY
By:
Christopher Armenta, Mayor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel Exhibit 1 – Description of Option Agreements
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EXHIBIT 1
DESCRIPTION OF THE OPTION AGREEMENTS
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EXHIBIT 2
DESCRIPTION OF THE COLLATERAL
Please refer to Attachment No. 1, 2 and 3 from the 2-22-11 Joint Meeting of the City Council
and the Culver City Redevelopment Agency entitled: JOINT CITY
COUNCIL/REDEVELOPMENT AGENCY BOARD AGENDA ITEM: Adoption of City Council
and Redevelopment Agency Board Resolutions to (i) Approve of Option Agreements
Granting the City the Right to Purchase Agency-Owned Property and (ii) Approve of
Instruments Securing Agency Obligations related to the Option Agreements and Certain
Cooperation Agreements.
Page 94 of 161
Attachment No. 6 Proposed Pledge of Notes
PLEDGE AGREEMENT
[agreement creating a security interest in the Agency’s promissory notes and other evidence of
indebtedness and in the security given to the Agency for those obligations]
THIS PLEDGE AGREEMENT (this “Agreement”) is entered into this day of
February, 2011, by and between the CITY OF CULVER CITY (the “City”) and the CULVER
CITY REDEVELOPMENT AGENCY (the “Agency”), with reference to the following facts:
J. The City Council of the City of Culver City (the “City Council”) adopted
Redevelopment Plans for the Culver City Redevelopment Projects (collectively, the “Project
Areas”), which results in the allocation of taxes from the Project Areas to the Agency for
purposes of redevelopment.
K. Pursuant to Section 33220 of the California Community Redevelopment Law
(Health and Safety Code Section 33000 et seq.) (the “CRL”), the City and Agency have entered
into a Cooperation Agreement dated January 15, 2011, as amended by a First Amendment to
Cooperation Agreement dated February 22, 2011 (collectively as amended, the “January 2011
Cooperation Agreement”) pursuant to Section 33220 of the California Community
Redevelopment Law (Health and Safety Code Section 33000 et seq.) to provide for
implementation of certain projects set forth in the Revised List of Projects attached thereto as
Exhibit No. 1.
L. In addition, the City and Agency entered into a Cooperation Agreement dated
February 22, 2011 (the “February 2011 Cooperation Agreement”) to provide for
implementation and funding for certain publicly-owned buildings (e.g., the Public Safety
Headquarters and the Veterans Memorial Building) as more particularly set forth in the List of
Projects attached thereto as Exhibit No. 1. Collectively, the January 2011 Cooperation
Agreement and the February 2011 Cooperation Agreement are referred to herein as the
“Cooperation Agreements” and the “Projects” means the projects as more particularly set
forth in the Exhibits attached to the Cooperation Agreements.
M. The City and the Agency have entered into or will enter into the Option
Agreements described in Exhibit 1 (collectively, the “Option Agreements”) whereby the Agency
grants the City an option to purchase the real property described therein. The City’s purchase of
the real property under the Option Agreement will occur on the terms and conditions described
in the Purchase and Sale Agreement attached to each Option Agreement as Exhibit ‘B’
(collectively, the “Purchase Agreements”).
N. The City and the Agency desire to secure the Agency’s obligations under the
Cooperation Agreements, the Option Agreements and the Purchase Agreements by the
evidences of indebtedness and the promissory notes secured by deeds of trust described in
Exhibit 2, which are to be pledged as collateral for such obligations.
NOW, THEREFORE, the parties hereto do mutually agree as follows:
34. Pledge. In consideration of any financial accommodations given or to be given or
continued to the Agency by the City, and as collateral security for the payment of any
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indebtedness, obligation, or liability of the Agency to the City, including but not limited to the
obligations of the Agency to the City under the Cooperation Agreement, the Option Agreements
and the Purchase Agreements, the Agency assigns, transfers to, and deposits with the City the
evidences of indebtedness, promissory notes, deeds of trust, assignments of rents and leases,
and security agreements described in Exhibit 2 (the “Collateral”), delivered by the Agency to
the City, or currently held by the Agency, and any additional property as may later be delivered
by the Agency to the City during the existence of this Pledge Agreement.
35. Warranties. The Agency warrants and represents the following with respect to the
Collateral:
f. The Agency is the absolute owner of the Collateral and the obligations described
in the documents that compose the Collateral are due and payable as stated in those
documents, and the obligors under the Collateral are not now in default in any respect as to any
obligations under the Collateral, except as previously disclosed to the City.
g. The Collateral is not subject to any prior assignment, claim, lien, or security
interest, and the Agency will not make any further assignment of the Collateral or create any
further security interest in the Collateral, and will not permit its rights in the Collateral to be
reached by attachment, levy, garnishment, or other judicial process.
h. The obligations of the obligors under the Collateral are not subject to any claim
for credits, allowances, or adjustments, excepted as previously disclosed to the City.
i. No notice of the bankruptcy or insolvency of any obligor under the Collateral has
been received by the Agency. On the Agency’s receipt of any such notice, the Agency will
immediately give the City written notice.
j. The Agency has maintained and will continue to maintain accurate and complete
records and accounts of all obligations given as the Collateral, and agrees to permit the City to
inspect these records and accounts. The Agency further agrees to submit statements of these
accounts to the City in any reasonable form prescribed by the City.
36. Power of Sale. The power of sale and all other powers granted by the Agency in this
Pledge Agreement will apply to all collateral of any kind, including all moneys, negotiable
instruments, bonds, stocks, and commercial paper, credits, choses in actions, claims or
demands of every kind at any time during the existence of this Pledge Agreement deposited
with or in the possession or control of the City or any of its agents.
37. Substitution of Collateral. If, with the consent of the City, the Agency substitutes or
exchanges other collateral, including but not limited to securities or instruments, in the place of
the Collateral described in Paragraph 1, then all of the rights of the City and all of the obligations
of the Agency under this Pledge Agreement will be applicable to the substituted or exchanged
collateral, and will be the same in all respects as the rights and obligations concerning the
Collateral originally pledged.
38. Collection of Collateral. The City will have the right to notify the obligor(s) under the
Collateral to make payment directly to it and to take control of all the proceeds of the Collateral,
or any part of it, and to enforce any of the obligations of the obligor(s) under the Collateral. The
City may exercise the rights described in this Paragraph at any time, whether or not the Agency
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is then in default under this Pledge Agreement and whether or not the Agency had been making
collections on the Collateral. Until such time as the City elects to exercise these rights by
mailing written notice to the Agency, the Agency is authorized to collect payments and to
enforce all rights under the Collateral concerning current and past-due payments, but is not
authorized to collect any prepayments, fire insurance proceeds, or condemnation awards
without the prior written consent of the City. The costs of collection and enforcement, including
attorneys’ fees and legal expenses, will be at the expense of the Agency. The Agency will
reimburse any costs or expenses, including attorneys’ fees and legal expenses, that are
incurred by the City.
39. Fire Insurance. All fire insurance required to be maintained by the obligors under
the terms of the Collateral will be written with loss payable to the City. The policies, or
certificates evidencing the policies, will be furnished to the City in a form satisfactory to it. If the
obligors and the Agency fail to pay any premium on any such insurance, the City may, but will
not be required to, pay the premium and may add the amount of the premium to the debt
secured by this Pledge Agreement. The Agency appoints the City to be its attorney-in-fact to
endorse any draft or check that may be payable to the Agency in order to collect the proceeds
of any such insurance or any condemnation award, and any balance of proceeds remaining
after payment in full of all amounts secured by this Pledge Agreement will be paid to the
Agency. The amount collected under any fire or any other insurance policy and any
condemnation award may be applied by the City to any indebtedness secured by this Pledge
Agreement, in any order that the City may determine, or, at the option of the City, any or all of
the entire amount collected may be released to the Agency.
40. Default. The Agency will be in default under this Pledge Agreement on the
occurrence of any of the following events or conditions:
e. Default in the payment or performance of any of the obligations, covenants, or
liabilities secured by this Pledge Agreement
f. Any warranty, representation, or statement made or furnished to the City by or on
behalf of the Agency proves to have been false in any material respect when made or furnished.
g. Death, dissolution, termination of existence, insolvency, business failure,
appointment of a receiver for any part of the Collateral, assignment for the benefit of creditors,
or the commencement of any proceeding under any bankruptcy or insolvency law by or against
the Agency.
h. Any default by any obligor(s) under the terms of the Collateral.
20. Remedies. On the occurrence of any event of default, and at any later time, the City
may declare all the obligations and liabilities of the Agency under this Pledge Agreement to
become immediately due and payable, notwithstanding any credit or extension of time allowed
to the Agency by any instrument evidencing any of these liabilities. In addition, the City may
proceed to enforce payment and may exercise any rights and remedies provided by the
California Commercial Code, as well as other rights and remedies either at law or in equity
possessed by the City, including but not limited to the following rights:
c. On notice to the Agency as required by the California Commercial Code, the City
may sell or otherwise dispose of the Collateral. The sale may be as a unit or in parts, at any
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time and place and on any terms, provided the City acts in good faith and in a commercially
reasonable manner. Out of the proceeds of any sale, the City may retain an amount equal to the
indebtedness secured by this Pledge Agreement, plus the amount of the expenses of the sale,
and will pay any balance of the proceeds of any sale to the Agency. The Agency agrees to pay
to the City, on demand, whatever balance may be owing on the indebtedness secured by this
Pledge Agreement after the sale of the Collateral and the application of the proceeds as
provided by this Paragraph and as required by law.
d. On notice as required by the California Commercial Code, the City may accept
the Collateral in satisfaction of all obligations of the Agency secured by this Pledge Agreement.
If the Agency or other person entitled to receive notice objects in writing within twenty (20) days
after notice was sent, the City must dispose of the Collateral under the terms and conditions
provided in paragraph a. above, or as otherwise authorized by law. In the absence of any
written objection, the City may accept the collateral, without any right of redemption, in full
satisfaction of the Agency’s obligations and indebtedness to the City.
21. Waiver of Rights by the Agency. The Agency waives any right to require the City to
(1) proceed against any person, (2) proceed or exhaust any collateral, or (3) pursue any other
remedy in the City’s power. The Agency also waives any defense arising from any disability or
other defense of any other person. The Agency authorizes the City to (1) take and hold security,
other than the Collateral, for the payment of the indebtedness or any part of the indebtedness,
and exchange, enforce, waive, and release the Collateral or any part of it or any other security,
and (2) release or substitute any other pledgor.
22. Assignment. This assignment of a security interest in the Collateral will be for the
benefit of the City and its successors or assigns. In the event that the City assigns, endorses,
sells, or transfers to any other person or entity the Collateral, or any other notes, evidence of
indebtedness, bonds, stocks or other securities deposited under this Pledge Agreement or
secured or intended to be secured by this Pledge Agreement, or any part of it, the assignment
or transfer will automatically constitute an assignment and transfer of this Pledge Agreement
and all of the rights granted by this Pledge Agreement. The assignee, endorsee, transferee, or
successor of the City will have all of the rights given to the City in accordance with the terms of
this Pledge Agreement.
23. Satisfaction of Obligation. On the satisfaction of all obligations of the Agency to the
City, the City will return to the Agency the Collateral and all other documents and securities
given as collateral under this Pledge Agreement, and will endorse all instruments to the Agency
and give an assignment of all of the Collateral.
24. Payments and Notices. All payments and notices under this Pledge Agreement or
otherwise required by law will be made to the City and the Agency at the addresses set forth
below. All notices, demands and communications shall be sufficiently given if dispatched by
registered or certified mail, postage prepaid, return receipt requested, to the addresses 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 as provided in this
Section. 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
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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.
To the Agency: Culver City Redevelopment Agency
Attn: Executive Director
9770 Culver Blvd.
Culver City, CA 90232
Telephone: [INSERT]
Facsimile: [INSERT]
To the City: City of Culver City
Attn: City Manager
9770 Culver Blvd.
Culver City, CA 90232
25. Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be an original, but all of
which together shall constitute one agreement binding on the Agency and the City.
26. Applicable Law. This Pledge Agreement will be construed in accordance with
Uniform Commercial Code as enacted in California and other applicable laws of the State of
California.
27. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby
incorporated herein by this reference.
28. Conflicts 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
personal interests or the interests of any corporation, partnership or association in which he is,
directly or indirectly, interested.
29. Severability. If any provision of this Pledge Agreement shall be held invalid, illegal or
unenforceable in any respect 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 construed as if the invalid, illegal, or unenforceable provision had never
been contained in it.
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30. 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.
31. 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 Collateral. 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 City and the Agency, 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
Agency’s Executive Director or designee and the City’s City Manager or designee, subject to
review and approval by the Board of the Culver City Redevelopment Agency or City Council of
the City of Culver City as needed to comply with applicable law and internal policies and
procedures. The waiver by the City or the Agency of any term, covenant, or condition herein
contained shall not be a waiver of such term, covenant, or condition on any subsequent breach.
21. Further Actions. The Agency’s Executive Director or designee and the
City’s City Manager or designee are authorized and directed to take such other and further
actions, and sign such other and further agreements and documents on behalf of the Agency
and the City, respectively, as may be necessary or proper to effect the terms of this Agreement.
22. Effective Date. This Agreement shall be deemed effective on [insert the date
the Resolution was approved] (the “Effective Date”).
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth opposite their signatures below.
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Dated: CITY OF CULVER CITY
By:
Christopher Armenta, Mayor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel Exhibit 1 – Description of Option Agreements
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EXHIBIT 1
DESCRIPTION OF THE OPTION AGREEMENTS
Exhibit 1 – Description of Option Agreements
Page 102 of 161
EXHIBIT 2
DESCRIPTION OF THE COLLATERAL
Please refer to Attachment No. 1, 2 and 3 from the 2-22-11 Joint Meeting of the City Council
and the Culver City Redevelopment Agency entitled: JOINT CITY
COUNCIL/REDEVELOPMENT AGENCY BOARD AGENDA ITEM: Adoption of City Council
and Redevelopment Agency Board Resolutions to (i) Approve of Option Agreements
Granting the City the Right to Purchase Agency-Owned Property and (ii) Approve of
Instruments Securing Agency Obligations related to the Option Agreements and Certain
Cooperation Agreements.
Exhibit 1 – Description of Option Agreements
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Attachment No. 7 Proposed Deed of Trust, Security Agreement and Fixture Filing (With
Assignment of Rents) RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk, Culver City
9770 Culver Blvd.
Culver City, CA 90232
_____________________________________________________________________
GOVERNMENT BUSINESS
Free Recording Requested
(Govt. Code §27383)
APN:________________
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of
Rents)(the “Deed of Trust”) is given as of the date signed by the CULVER CITY
REDEVELOPMENT AGENCY, a public body corporate and politic (hereinafter referred to as
“Trustor”) whose address is __________________________________________ to First
American Title Company, a California corporation (hereinafter called “Trustee”), for the benefit Exhibit 1 – Description of Option Agreements
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of the CITY OF CULVER CITY (hereinafter called “Beneficiary”), whose address is
_________________________________________.
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to
Trustee, its successors and assigns, in trust, with POWER OF SALE TOGETHER WITH RIGHT
OF ENTRY AND POSSESSION the following property (the “Trust Estate”):
(a) That certain real property in the City of _______________, County
of _____________________, State of California more particularly described in Exhibit A
attached hereto and by this reference made a part hereof (such interest in real property is
hereafter referred to as the “Subject Property”);
(b) All buildings, structures and other improvements now or in the
future located or to be constructed on the Subject Property (the “Improvements”);
(c) all tenements, hereditaments, appurtenances, privileges,
franchises and other rights and interests now or in the future benefitting or otherwise relating to
the Subject Property or the Improvements, including easements, rights-of-way and development
rights (the “Appurtenances”). (The Appurtenances, together with the Subject Property and the
Improvements, are hereafter referred to as the “Real Property”);
(d) subject to the assignment to Beneficiary set forth in Paragraph 4
below, all rents, issues, income, revenues, royalties and profits now or in the future payable with
respect to or otherwise derived from the Trust Estate or the ownership, use, management,
operation leasing or occupancy of the Trust Estate, including those past due and unpaid (the
“Rents”);
(e) all present and future right, title and interest of Trustor in and to all
inventory, equipment, fixtures and other goods (as those terms are defined in Division 9 of the
California Uniform Commercial Code (the “UCC”), and whether existing now or in the future)
now or in the future located at, upon or about, or affixed or attached to or installed in, the Real Exhibit 1 – Description of Option Agreements
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Property, or used or to be used in connection with or otherwise relating to the Real Property or
the ownership, use, development, construction, maintenance, management, operation,
marketing, leasing or occupancy of the Real Property, including furniture, furnishings, theater
equipment, seating, machinery, appliances, building materials and supplies, generators, boilers,
furnaces, water tanks, heating ventilating and air conditioning equipment and all other types of
tangible personal property of any kind or nature, and all accessories, additions, attachments,
parts, proceeds, products, repairs, replacements and substitutions of or to any of such property,
but not including personal property that is donated to Trustor (the “Goods,” and together with the
Real Property, the “Property”); and
(f) all present and future right, title and interest of Trustor in and to all
accounts, general intangibles, chattel paper, deposit accounts, money, instruments and
documents (as those terms are defined in the UCC) and all other agreements, obligations, rights
and written material (in each case whether existing now or in the future) now or in the future
relating to or otherwise arising in connection with or derived from the Property or any other part
of the Trust Estate or the ownership, use, development, construction, maintenance,
management, operation, marketing, leasing, occupancy, sale or financing of the property or any
other part of the Trust Estate, including (to the extent applicable to the Property or any other
portion of the Trust Estate) (i) permits, approvals and other governmental authorizations, (ii)
improvement plans and specifications and architectural drawings, (iii) agreements with
contractors, subcontractors, suppliers, project managers, supervisors, designers, architects,
engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout,
refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and
insurance policies, together with insurance payments and unearned insurance premiums, (vi)
claims, demands, awards, settlements, and other payments arising or resulting from or
otherwise relating to any insurance or any loss or destruction of, injury or damage to, trespass
on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the
Property, (vii) license agreements, service and maintenance agreements, purchase and sale
agreements and purchase options, together with advance payments, security deposits and
other amounts paid to or deposited with Trustor under any such agreements, (viii) reserves,
deposits, bonds, deferred payments, refunds, rebates, discounts, cost savings, escrow
proceeds, sale proceeds and other rights to the payment of money, trade names, trademarks,
goodwill and all other types on intangible personal property of any kind or nature, and (ix) all
supplements, modifications, amendments, renewals, extensions, proceeds, replacements and
substitutions of or to any of such property (the “Intangibles”).
Exhibit 1 – Description of Option Agreements
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Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security
interest in all present and future right, title and interest of Trustor in and to all Goods and
Intangibles and all of the Trust Estates described above in which a security interest may be
created under the UCC (collectively, the “Personal Property”). This Deed of Trust constitutes a
security agreement under the UCC, conveying a security interest in the Personal Property to
Trustee and Beneficiary. Trustee and Beneficiary shall have, in addition to all rights and
remedies provided herein, all the rights and remedies of a “secured party” under the UCC and
other applicable California law. Trustor covenants and agrees that this Deed of Trust
constitutes a fixture filing under Sections 9313, 9502 and 14109 of the UCC.
FOR THE PURPOSE OF SECURING due, prompt and complete observance,
performance and discharge of each and every condition, obligation, covenant and agreement
contained herein or contained in:
(1) that certain Cooperation Agreement dated January 15, 2011, as amended by a First
Amendment to Cooperation Agreement dated February 22, 2011 (collectively as amended, the
“January 2011 Cooperation Agreement”); and
(2) that certain Cooperation Agreement dated February 22, 2011 (the “February 2011
Cooperation Agreement”) to provide for implementation and funding for certain publicly-owned
buildings (e.g., the Public Safety Headquarters and the Veterans Memorial Building) as more
particularly set forth in the List of Projects attached thereto as Exhibit No. 1. Collectively, the
January 2011 Cooperation Agreement and the February 2011 Cooperation Agreement are
referred to herein as the “Cooperation Agreements” and the “Projects” means the projects as
more particularly set forth in the Exhibits attached to the Cooperation Agreements; and
(3) those certain Option Agreements as more particularly described in Exhibit B attached
hereto and incorporated herein (collectively, the “Option Agreements”) whereby the Trustor
granted the Beneficiary an option to purchase the real property described therein. The
Beneficiary’s purchase of the real property under the Option Agreement will occur on the terms
and conditions described in the Purchase and Sale Agreement attached to each Option
Agreement as Exhibit B (collectively, the “Purchase Agreements”),
Exhibit 1 – Description of Option Agreements
Page 107 of 161
executed by Trustor and Beneficiary in addition to any documents ancillary thereto. The
obligations and restrictions set forth in said Cooperation Agreements and Option Agreements
(collectively “Secured Obligations”) and all of their terms are incorporated herein by reference
and this conveyance shall secure any and all extensions, amendments, modifications or
renewals thereof however evidenced, and additional advances evidenced by any instrument
reciting that it is secured hereby.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS
AND AGREES:
i) That Trustor shall perform the obligations of the Trustor as set forth in the
Cooperation Agreements and the Option Agreements at the time and in the manner respectively
provided therein;
ii) That Trustor shall not permit or suffer the use of any of the property for any
purpose other than the use for which the same was intended at the time this Deed of Trust was
executed;
iii) That the Secured Obligations are incorporated in and made a part of the Deed of
Trust. Upon default of a Secured Obligation, and after the giving of notice and the expiration of
any applicable cure period, the Beneficiary, at its option, may exercise its remedies hereunder.
iv) That all rents, profits and income from the property covered by this Deed of Trust
are hereby assigned to the Beneficiary for the purpose of discharging the debt hereby secured.
Permission is hereby given to Trustor so long as no default exists hereunder after the giving of
notice and the expiration of any applicable cure period, to collect such rents, profits and income.
v) That upon default hereunder or under the aforementioned Cooperation
Agreements and Option Agreements, and after the giving of notice and the expiration of any
applicable cure period, Beneficiary shall be entitled to the appointment of a receiver by any Exhibit 1 – Description of Option Agreements
Page 108 of 161
court having jurisdiction, without notice, to take possession and protect the property described
herein and operate same and collect the rents, profits and income therefrom;
vi) That Trustor will keep the improvements now existing or hereafter erected on the
property insured against loss by fire and such other hazards, casualties, and contingencies as
may reasonably be required in writing from time to time by the Beneficiary, and all such
insurance shall be evidenced by standard fire and extended coverage insurance policy or
policies. In no event shall the amounts of coverage be less than 100 percent of the insurable
value of the Property. Such policies shall be endorsed with standard mortgage clause with loss
payable to the Beneficiary and certificates thereof together with copies of original policies shall
be deposited with the Beneficiary;
vii) To pay, at least 10 days before delinquency, any taxes and assessments
affecting said Property; to pay, when due, all encumbrances, charges and liens, with interest, on
said Property or any part thereof which appear to be prior or superior hereto; and to pay all
costs, fees, and expenses of this Trust. Notwithstanding anything to the contrary contained in
this Deed of Trust, Trustor shall not be required to pay and discharge any such tax,
assessment, charge or levy so long as Trustor is contesting the legality thereof in good faith and
by appropriate proceedings, and Trustor has adequate funds to pay any liabilities contested
pursuant to this Section 7.
viii) To keep said property in good condition and repair, subject to ordinary wear and
tear, casualty and condemnation, not to remove or demolish any buildings thereon; to complete
or restore promptly and in good and workmanlike manner any building which may be
constructed, damaged, or destroyed thereon and to pay when due all claims for labor performed
and materials furnished therefor; to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon (subject to Trustor's right to contest the validity
or applicability of laws or regulations); not to commit or permit waste thereof; not to commit,
suffer or permit any act upon said property in violation of law and/or covenants, conditions
and/or restrictions affecting said property; not to permit or suffer any material alteration of or
addition to the buildings or improvements hereafter constructed in or upon said property without
the consent of the Beneficiary;
Exhibit 1 – Description of Option Agreements
Page 109 of 161
ix) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and
expenses, including cost of evidence of title and reasonable attorney's fees in a reasonable
sum, in any such action or proceeding in which Beneficiary or Trustee may appear;
x) Should Trustor fail, after the giving of notice and the expiration of any applicable
cure period, to make any payment or do any act as herein provided, then Beneficiary or Trustee,
but without obligation so to do and without notice to or demand upon Trustor and without
releasing Trustor from any obligation hereof, may make or do the same in such manner and to
such extent as either may deem necessary to protect the security hereof. Following default,
after the giving of notice and the expiration of any applicable cure period, Beneficiary or Trustee
being authorized to enter upon said property for such purposes, may commence, appear in
and/or defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; may pay, purchase, contest, or compromise any
encumbrance, charge, or lien which in the judgment of either appears to be prior or superior
hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and
pay his reasonable fees;
xi) Beneficiary shall have the right to pay fire and other property insurance
premiums when due should Trustor fail to make any required premium payments. All such
payments made by the Beneficiary shall be added to the indebtedness and obligations secured
hereby in the Cooperation Agreement, or any other instrument drawn and agreed upon between
th;
xii) To pay immediately and without demand all sums so expended by Beneficiary or
Trustee, under permission given under this Deed of Trust, with interest from date of expenditure
at the rate of ten percent (10%) pursuant to Section 3289 of the California Civil Code;
xiii) Trustor further covenants that it will not voluntarily create, suffer, or permit to be
created against the property subject to this Deed of Trust any lien or liens except as authorized
by Beneficiary and further that they will keep and maintain the property free from the claims of
all persons supplying labor or materials which will enter into the construction of any and all
buildings now being erected or to be erected on said premises. Notwithstanding anything to the
contrary contained in this Deed of Trust, Trustor shall not be obligated to pay any claims for Exhibit 1 – Description of Option Agreements
Page 110 of 161
labor, materials or services which Trustor in good faith disputes and is diligently contesting,
provided that Trustor shall, at Beneficiary's written request, within thirty (30) days after the filing
of any claim or lien (but in any event, and without any requirement that Beneficiary must first
provide a written request, prior to foreclosure) record in the Office of the Recorder of Los
Angeles County, a surety bond in an amount one-and-one-half (1½) times the amount of such
claim item to protect against a claim of lien, or provide such other security reasonably
satisfactory to Beneficiary;
xiv) That any and all improvements made or about to be made upon the premises
covered by the Deed of Trust, and all plans and specifications, comply with all applicable
municipal ordinances and regulations and all other applicable regulations made or promulgated,
now or hereafter, by lawful authority, and that the same will upon completion comply with all
such municipal ordinances and regulations and with the rules of the applicable fire rating or
inspection organization, bureau, association or office; and
xv) Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing
representative of the Beneficiary a reasonable charge for providing a statement regarding the
obligation secured by this Deed of Trust as provided by Section 2954, Article 2, Chapter 2 Title
14, Division 3, of the California Civil Code.
IT IS MUTUALLY AGREED THAT:
xvi) Should the property or any part thereof be taken or damaged by reason of any
public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any
other manner, subject to the rights of any beneficiary of a deed of trust senior or junior in priority
to this Deed of Trust (“Lender”), Beneficiary shall be entitled to all compensation, awards, and
other payments or relief therefor which are not used to reconstruct, restore or otherwise improve
the property or part thereof that was taken or damaged, and shall be entitled at its option to
commence, appear in and prosecute in its own name, any action or proceedings, or to make
any compromise or settlement, in connection with such taking or damage. Subject to the rights
of any Lender, all such compensation, awards, damages, rights of action and proceeds which
are not used to reconstruct, restore or otherwise improve the property or part thereof that was
taken or damaged, including the proceeds of any policies of fire and other insurance affecting
said property, are hereby assigned to Beneficiary. Exhibit 1 – Description of Option Agreements
Page 111 of 161
xvii) If Trustor shall fail to perform any covenant or agreement in this Deed of Trust or
the Cooperation Agreements or the Option Agreements within 30 days after written demand
therefor by Beneficiary (or, in the event that more than 30 days is reasonably required to cure
such default, should Trustor fail to promptly commence such cure, and diligently prosecute
same to completion), after the giving of notice and the expiration of any applicable cure period,
Beneficiary may deliver to Trustee a written declaration of default and demand for sale, and of
written notice of default and of election to cause the property to be sold, which notice Trustee
shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust.
Beneficiary shall also deposit with Trustee this Deed, the Cooperation Agreements, the Option
Agreements and all documents evidencing expenditures secured hereby;
xviii) After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as then required by
law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it
in said notice of sale, either as a whole or in separate parcels, and in such order as it may
determine at public auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said property by
public announcement at the time and place of sale, and from time to time thereafter may
postpone the sale by public announcement at the time and place of sale, and from time to time
thereafter may postpone the sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in the Deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds
of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of
this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale,
and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost
of any search and/or other evidence of title procured in connection with such sale and revenue
stamps on Trustee's Deed; (3) all consideration paid by Beneficiary as referred to in the
Cooperation Agreements or Option Agreements, with accrued interest at the highest rate of
interest permitted by law; (4) all other sums then secured hereby; and (5) the remainder, if any,
to the person or persons legally entitled thereto;
xix) Beneficiary may from time to time substitute a successor or successors to any
Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and Exhibit 1 – Description of Option Agreements
Page 112 of 161
without conveyance to the successor trustee, the latter shall be vested with all title, powers, and
duties conferred upon any Trustee herein named or acting hereunder. Each such appointment
and substitution shall be made by written instrument executed by Beneficiary, containing
reference to this Deed of Trust and its place of record, which, when duly recorded in the proper
office of the county or counties in which the property is situated, shall be conclusive proof of
proper appointment of the successor trustee;
xx) The pleading of any statute of limitations as a defense to any and all obligations
secured by this Deed of Trust is hereby waived to the full extent permissible by law;
xxi) Upon written request of Beneficiary stating that all obligations secured hereby
have been satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and
retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property
then held hereunder. The recitals in such reconveyance of any matters or fact shall be
conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be
described as “the person or persons legally entitled thereto”;
xxii) The trust created hereby is irrevocable by Trustor;
xxiii) This Deed of Trust applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The
term “Beneficiary” shall include not only the original Beneficiary hereunder but also any
successors or assignees. In this Deed of Trust, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number includes the
plural. All obligations of Trustor hereunder are joint and several;
xxiv) Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made public record as provided by law. Except as otherwise provided by law
the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust
or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless
brought by Trustee;
Exhibit 1 – Description of Option Agreements
Page 113 of 161
xxv) The undersigned Trustor requests that a copy of any notice of default and of any
notice of sale hereunder be mailed to Trustor at the address set forth in the first paragraph of
this Deed of Trust.
xxvi) Trustor agrees at any time and from time to time upon receipt of a written request
from Beneficiary, to furnish to Beneficiary detailed statements in writing of income, rents, profits,
and operating expenses of the premises, and the names of the occupants and tenants in
possession, together with the expiration dates of their leases and full information regarding all
rental and occupancy agreements, and the rents provided for by such leases and rental and
occupancy agreements, and such other information regarding the premises and their use as
may be requested by Beneficiary.
xxvii) Trustor agrees that the indebtedness secured by this Deed of Trust is made
expressly for the purpose of financing the construction of housing that is to be sold exclusively,
at an affordable housing cost, to Moderate Income households, as provided in the Cooperation
Agreement.
xxviii) Notwithstanding specific provisions of this Deed of Trust, non-monetary
performance hereunder shall not be deemed to be in default where delays or defaults are due
to: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; unusually severe weather; inability
to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the
other party; acts or failure to act of the City of Los Angeles or any other public or governmental
agency or entity (except that any act or failure to act of Beneficiary shall not excuse
performance by Beneficiary); or any other causes beyond the reasonable control or without the
fault of the party claiming an extension of time to perform. An extension of time for any such
cause (a “Force Majeure Delay”) shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause. If, however, notice by the
party claiming such extension is sent to the other party more than thirty (30) days after the
commencement of the cause, the period shall commence to run only thirty (30) days prior to the
giving of such notice. Times of performance under this Deed of Trust may also be extended in
writing by the Beneficiary and Trustor. Notwithstanding the foregoing, none of the foregoing
events shall constitute a Force Majeure Delay unless and until Trustor delivers to Beneficiary
written notice describing the event, its cause, when and how Trustor obtained knowledge, the Exhibit 1 – Description of Option Agreements
Page 114 of 161
date the event commenced, and the estimated delay resulting therefrom. Trustor shall deliver
such written notice within fifteen (15) days after it obtains actual knowledge of the event.
xxix) (a) Subject to the extensions of time set forth in Section 28, and subject to the
further provisions of this Section 29, failure or delay by Trustor to perform any term or provision
respectively required to be performed under the Cooperation Agreements or the Option
Agreements or this Deed of Trust constitutes a default under this Deed of Trust.
(b) Beneficiary shall give written notice of default to Trustor, specifying the
default complained of by the Beneficiary. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default.
(c) Any failures or delays by Beneficiary in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or of any such rights or
remedies. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive
Beneficiary 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) If a monetary event of default occurs, prior to exercising any remedies,
Beneficiary shall give Trustor written notice of such default. Trustor shall have a reasonable
period of time after such notice is given within which to cure the default prior to exercise of
remedies by Beneficiary under the Note and/or this Deed of Trust. In no event shall Beneficiary
be precluded from exercising remedies if its security becomes or is about to become materially
impaired by any failure to cure a default or the default is not cured within ten (10) calendar days
after the notice of default is received or deemed received.
Exhibit 1 – Description of Option Agreements
Page 115 of 161
(e) If a non-monetary event of default occurs, prior to exercising any
remedies, Beneficiary shall give Trustor notice of such default. If the default is reasonably
capable of being cured within thirty (30) calendar days after such notice is received or deemed
received, Trustor shall have such period to effect a cure prior to exercise of remedies by the
Beneficiary. If the default is such that it is not reasonably capable of being cured within thirty
(30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in
good faith works to effect a cure as soon as possible, then Trustor shall have such additional
time as is reasonably necessary to cure the default prior to exercise of any remedies by
Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security
becomes or is about to become materially jeopardized by any failure to cure a default or the
default is not cured within ninety (90) days after the notice of default is received or deemed
received.
(f) Any notice of default that is transmitted by electronic facsimile
transmission followed by delivery of a “hard” copy, shall be deemed delivered upon its
transmission; any notice of default 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 Trustor; and any notice of default that is sent by registered or certified mail, postage
prepaid, return receipt required shall be deemed received on the date of receipt thereof.
xxx) This Deed of Trust shall be subordinate and junior to the following: the [insert
superior Deed of Trust with Absolute Assignment of Leases and Rents, Security
Agreement and Fixture Filing] recorded concurrently herewith securing a loan in the amount
of [insert amount of loan] made by [insert name of lender]. The Executive Director of the
Beneficiary or his designee shall execute such instruments as may be necessary to subordinate
the lien of this Deed of Trust to the deed of trust described in this Section 30, above. In the
event of a default or breach by Trustor of any security instrument securing a senior obligation
described in this Section 30, Beneficiary shall have the right to cure the default prior to
completion of any foreclosure. In such event, Beneficiary shall be entitled to reimbursement by
Trustor of all costs and expenses incurred by Beneficiary in curing the default. The amount of
any such disbursements shall be a lien against the Subject Property and added to the obligation
secured by this Deed of Trust until repaid, with interest at the highest rate permitted by law.
IN WITNESS WHEREOF Trustor has executed this Deed of Trust as of the day and year
set forth above.
Exhibit 1 – Description of Option Agreements
Page 116 of 161
Signature of Trustor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel
Exhibit 1 – Description of Option Agreements
Page 117 of 161
State of California )
) ss
County of _____________ )
On ____________________________________________________________ before
me, _______________________________________________, a Notary Public, personally
appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________________ (Seal)
Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 118 of 10
EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 119 of 10
EXHIBIT B
LIST OF OPTION AGREEMENTS
Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 120 of 10
Attachment No. 7 Proposed Deed of Trust, Security Agreement and Fixture Filing
(With Assignment of Rents)
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City Clerk, Culver City
9770 Culver Blvd.
Culver City, CA 90232
_____________________________________________________________________
GOVERNMENT BUSINESS
Free Recording Requested
(Govt. Code §27383)
APN:________________
DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 121 of 10
This Deed of Trust, Security Agreement and Fixture Filing (With Assignment of
Rents)(the “Deed of Trust”) is given as of the date signed by the CULVER CITY
REDEVELOPMENT AGENCY, a public body corporate and politic (hereinafter referred to as
“Trustor”) whose address is __________________________________________ to First
American Title Company, a California corporation (hereinafter called “Trustee”), for the benefit
of the CITY OF CULVER CITY (hereinafter called “Beneficiary”), whose address is
_________________________________________.
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to
Trustee, its successors and assigns, in trust, with POWER OF SALE TOGETHER WITH RIGHT
OF ENTRY AND POSSESSION the following property (the “Trust Estate”):
(a) That certain real property in the City of _______________, County
of _____________________, State of California more particularly described in Exhibit A
attached hereto and by this reference made a part hereof (such interest in real property is
hereafter referred to as the “Subject Property”);
(b) All buildings, structures and other improvements now or in the
future located or to be constructed on the Subject Property (the “Improvements”);
(c) all tenements, hereditaments, appurtenances, privileges,
franchises and other rights and interests now or in the future benefitting or otherwise relating to
the Subject Property or the Improvements, including easements, rights-of-way and development
rights (the “Appurtenances”). (The Appurtenances, together with the Subject Property and the
Improvements, are hereafter referred to as the “Real Property”);
(d) subject to the assignment to Beneficiary set forth in Paragraph 4 Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 122 of 10
below, all rents, issues, income, revenues, royalties and profits now or in the future payable with
respect to or otherwise derived from the Trust Estate or the ownership, use, management,
operation leasing or occupancy of the Trust Estate, including those past due and unpaid (the
“Rents”);
(e) all present and future right, title and interest of Trustor in and to all
inventory, equipment, fixtures and other goods (as those terms are defined in Division 9 of the
California Uniform Commercial Code (the “UCC”), and whether existing now or in the future)
now or in the future located at, upon or about, or affixed or attached to or installed in, the Real
Property, or used or to be used in connection with or otherwise relating to the Real Property or
the ownership, use, development, construction, maintenance, management, operation,
marketing, leasing or occupancy of the Real Property, including furniture, furnishings, theater
equipment, seating, machinery, appliances, building materials and supplies, generators, boilers,
furnaces, water tanks, heating ventilating and air conditioning equipment and all other types of
tangible personal property of any kind or nature, and all accessories, additions, attachments,
parts, proceeds, products, repairs, replacements and substitutions of or to any of such property,
but not including personal property that is donated to Trustor (the “Goods,” and together with the
Real Property, the “Property”); and
(f) all present and future right, title and interest of Trustor in and to all
accounts, general intangibles, chattel paper, deposit accounts, money, instruments and
documents (as those terms are defined in the UCC) and all other agreements, obligations, rights
and written material (in each case whether existing now or in the future) now or in the future
relating to or otherwise arising in connection with or derived from the Property or any other part
of the Trust Estate or the ownership, use, development, construction, maintenance,
management, operation, marketing, leasing, occupancy, sale or financing of the property or any
other part of the Trust Estate, including (to the extent applicable to the Property or any other
portion of the Trust Estate) (i) permits, approvals and other governmental authorizations, (ii)
improvement plans and specifications and architectural drawings, (iii) agreements with
contractors, subcontractors, suppliers, project managers, supervisors, designers, architects,
engineers, sales agents, leasing agents, consultants and property managers, (iv) takeout, Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 123 of 10
refinancing and permanent loan commitments, (v) warranties, guaranties, indemnities and
insurance policies, together with insurance payments and unearned insurance premiums, (vi)
claims, demands, awards, settlements, and other payments arising or resulting from or
otherwise relating to any insurance or any loss or destruction of, injury or damage to, trespass
on or taking, condemnation (or conveyance in lieu of condemnation) or public use of any of the
Property, (vii) license agreements, service and maintenance agreements, purchase and sale
agreements and purchase options, together with advance payments, security deposits and
other amounts paid to or deposited with Trustor under any such agreements, (viii) reserves,
deposits, bonds, deferred payments, refunds, rebates, discounts, cost savings, escrow
proceeds, sale proceeds and other rights to the payment of money, trade names, trademarks,
goodwill and all other types on intangible personal property of any kind or nature, and (ix) all
supplements, modifications, amendments, renewals, extensions, proceeds, replacements and
substitutions of or to any of such property (the “Intangibles”).
Trustor further grants to Trustee and Beneficiary, pursuant to the UCC, a security
interest in all present and future right, title and interest of Trustor in and to all Goods and
Intangibles and all of the Trust Estates described above in which a security interest may be
created under the UCC (collectively, the “Personal Property”). This Deed of Trust constitutes a
security agreement under the UCC, conveying a security interest in the Personal Property to
Trustee and Beneficiary. Trustee and Beneficiary shall have, in addition to all rights and
remedies provided herein, all the rights and remedies of a “secured party” under the UCC and
other applicable California law. Trustor covenants and agrees that this Deed of Trust
constitutes a fixture filing under Sections 9313, 9502 and 14109 of the UCC.
FOR THE PURPOSE OF SECURING due, prompt and complete observance,
performance and discharge of each and every condition, obligation, covenant and agreement
contained herein or contained in:
(1) that certain Cooperation Agreement dated January 15, 2011, as amended by a First Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 124 of 10
Amendment to Cooperation Agreement dated February 22, 2011 (collectively as amended, the
“January 2011 Cooperation Agreement”); and
(2) that certain Cooperation Agreement dated February 22, 2011 (the “February 2011
Cooperation Agreement”) to provide for implementation and funding for certain publicly-owned
buildings (e.g., the Public Safety Headquarters and the Veterans Memorial Building) as more
particularly set forth in the List of Projects attached thereto as Exhibit No. 1. Collectively, the
January 2011 Cooperation Agreement and the February 2011 Cooperation Agreement are
referred to herein as the “Cooperation Agreements” and the “Projects” means the projects as
more particularly set forth in the Exhibits attached to the Cooperation Agreements; and
(3) those certain Option Agreements as more particularly described in Exhibit B attached
hereto and incorporated herein (collectively, the “Option Agreements”) whereby the Trustor
granted the Beneficiary an option to purchase the real property described therein. The
Beneficiary’s purchase of the real property under the Option Agreement will occur on the terms
and conditions described in the Purchase and Sale Agreement attached to each Option
Agreement as Exhibit B (collectively, the “Purchase Agreements”),
executed by Trustor and Beneficiary in addition to any documents ancillary thereto. The
obligations and restrictions set forth in said Cooperation Agreements and Option Agreements
(collectively “Secured Obligations”) and all of their terms are incorporated herein by reference
and this conveyance shall secure any and all extensions, amendments, modifications or
renewals thereof however evidenced, and additional advances evidenced by any instrument
reciting that it is secured hereby.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS
AND AGREES: Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 125 of 10
xxxi) That Trustor shall perform the obligations of the Trustor as set forth in the
Cooperation Agreements and the Option Agreements at the time and in the manner respectively
provided therein;
xxxii) That Trustor shall not permit or suffer the use of any of the property for any
purpose other than the use for which the same was intended at the time this Deed of Trust was
executed;
xxxiii) That the Secured Obligations are incorporated in and made a part of the Deed of
Trust. Upon default of a Secured Obligation, and after the giving of notice and the expiration of
any applicable cure period, the Beneficiary, at its option, may exercise its remedies hereunder.
xxxiv) That all rents, profits and income from the property covered by this Deed of Trust
are hereby assigned to the Beneficiary for the purpose of discharging the debt hereby secured.
Permission is hereby given to Trustor so long as no default exists hereunder after the giving of
notice and the expiration of any applicable cure period, to collect such rents, profits and income.
xxxv) That upon default hereunder or under the aforementioned Cooperation
Agreements and Option Agreements, and after the giving of notice and the expiration of any
applicable cure period, Beneficiary shall be entitled to the appointment of a receiver by any
court having jurisdiction, without notice, to take possession and protect the property described
herein and operate same and collect the rents, profits and income therefrom;
xxxvi) That Trustor will keep the improvements now existing or hereafter erected on the
property insured against loss by fire and such other hazards, casualties, and contingencies as Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 126 of 10
may reasonably be required in writing from time to time by the Beneficiary, and all such
insurance shall be evidenced by standard fire and extended coverage insurance policy or
policies. In no event shall the amounts of coverage be less than 100 percent of the insurable
value of the Property. Such policies shall be endorsed with standard mortgage clause with loss
payable to the Beneficiary and certificates thereof together with copies of original policies shall
be deposited with the Beneficiary;
xxxvii) To pay, at least 10 days before delinquency, any taxes and assessments
affecting said Property; to pay, when due, all encumbrances, charges and liens, with interest, on
said Property or any part thereof which appear to be prior or superior hereto; and to pay all
costs, fees, and expenses of this Trust. Notwithstanding anything to the contrary contained in
this Deed of Trust, Trustor shall not be required to pay and discharge any such tax,
assessment, charge or levy so long as Trustor is contesting the legality thereof in good faith and
by appropriate proceedings, and Trustor has adequate funds to pay any liabilities contested
pursuant to this Section 7.
xxxviii) To keep said property in good condition and repair, subject to ordinary wear and
tear, casualty and condemnation, not to remove or demolish any buildings thereon; to complete
or restore promptly and in good and workmanlike manner any building which may be
constructed, damaged, or destroyed thereon and to pay when due all claims for labor performed
and materials furnished therefor; to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon (subject to Trustor's right to contest the validity
or applicability of laws or regulations); not to commit or permit waste thereof; not to commit,
suffer or permit any act upon said property in violation of law and/or covenants, conditions
and/or restrictions affecting said property; not to permit or suffer any material alteration of or
addition to the buildings or improvements hereafter constructed in or upon said property without
the consent of the Beneficiary;
xxxix) To appear in and defend any action or proceeding purporting to affect the Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 127 of 10
security hereof or the rights or powers of Beneficiary or Trustee, and to pay all costs and
expenses, including cost of evidence of title and reasonable attorney's fees in a reasonable
sum, in any such action or proceeding in which Beneficiary or Trustee may appear;
xl) Should Trustor fail, after the giving of notice and the expiration of any applicable
cure period, to make any payment or do any act as herein provided, then Beneficiary or Trustee,
but without obligation so to do and without notice to or demand upon Trustor and without
releasing Trustor from any obligation hereof, may make or do the same in such manner and to
such extent as either may deem necessary to protect the security hereof. Following default,
after the giving of notice and the expiration of any applicable cure period, Beneficiary or Trustee
being authorized to enter upon said property for such purposes, may commence, appear in
and/or defend any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; may pay, purchase, contest, or compromise any
encumbrance, charge, or lien which in the judgment of either appears to be prior or superior
hereto; and, in exercising any such powers, may pay necessary expenses, employ counsel, and
pay his reasonable fees;
xli) Beneficiary shall have the right to pay fire and other property insurance
premiums when due should Trustor fail to make any required premium payments. All such
payments made by the Beneficiary shall be added to the indebtedness and obligations secured
hereby in the Cooperation Agreement, or any other instrument drawn and agreed upon between
th;
xlii) To pay immediately and without demand all sums so expended by Beneficiary or
Trustee, under permission given under this Deed of Trust, with interest from date of expenditure
at the rate of ten percent (10%) pursuant to Section 3289 of the California Civil Code;
xliii) Trustor further covenants that it will not voluntarily create, suffer, or permit to be Exhibit 1 – Description of Option Agreements
Deed of Trust
Page 128 of 10
created against the property subject to this Deed of Trust any lien or liens except as authorized
by Beneficiary and further that they will keep and maintain the property free from the claims of
all persons supplying labor or materials which will enter into the construction of any and all
buildings now being erected or to be erected on said premises. Notwithstanding anything to the
contrary contained in this Deed of Trust, Trustor shall not be obligated to pay any claims for
labor, materials or services which Trustor in good faith disputes and is diligently contesting,
provided that Trustor shall, at Beneficiary's written request, within thirty (30) days after the filing
of any claim or lien (but in any event, and without any requirement that Beneficiary must first
provide a written request, prior to foreclosure) record in the Office of the Recorder of Los
Angeles County, a surety bond in an amount one-and-one-half (1½) times the amount of such
claim item to protect against a claim of lien, or provide such other security reasonably
satisfactory to Beneficiary;
xliv) That any and all improvements made or about to be made upon the premises
covered by the Deed of Trust, and all plans and specifications, comply with all applicable
municipal ordinances and regulations and all other applicable regulations made or promulgated,
now or hereafter, by lawful authority, and that the same will upon completion comply with all
such municipal ordinances and regulations and with the rules of the applicable fire rating or
inspection organization, bureau, association or office; and
xlv) Trustor herein agrees to pay to Beneficiary or to the authorized loan servicing
representative of the Beneficiary a reasonable charge for providing a statement regarding the
obligation secured by this Deed of Trust as provided by Section 2954, Article 2, Chapter 2 Title
14, Division 3, of the California Civil Code.
IT IS MUTUALLY AGREED THAT:
xlvi) Should the property or any part thereof be taken or damaged by reason of any Exhibit 1 – Description of Option Agreements
Deed of Trust
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public improvement or condemnation proceeding, or damaged by fire, or earthquake, or in any
other manner, subject to the rights of any beneficiary of a deed of trust senior or junior in priority
to this Deed of Trust (“Lender”), Beneficiary shall be entitled to all compensation, awards, and
other payments or relief therefor which are not used to reconstruct, restore or otherwise improve
the property or part thereof that was taken or damaged, and shall be entitled at its option to
commence, appear in and prosecute in its own name, any action or proceedings, or to make
any compromise or settlement, in connection with such taking or damage. Subject to the rights
of any Lender, all such compensation, awards, damages, rights of action and proceeds which
are not used to reconstruct, restore or otherwise improve the property or part thereof that was
taken or damaged, including the proceeds of any policies of fire and other insurance affecting
said property, are hereby assigned to Beneficiary.
xlvii) If Trustor shall fail to perform any covenant or agreement in this Deed of Trust or
the Cooperation Agreements or the Option Agreements within 30 days after written demand
therefor by Beneficiary (or, in the event that more than 30 days is reasonably required to cure
such default, should Trustor fail to promptly commence such cure, and diligently prosecute
same to completion), after the giving of notice and the expiration of any applicable cure period,
Beneficiary may deliver to Trustee a written declaration of default and demand for sale, and of
written notice of default and of election to cause the property to be sold, which notice Trustee
shall cause to be duly filed for record and Beneficiary may foreclose this Deed of Trust.
Beneficiary shall also deposit with Trustee this Deed, the Cooperation Agreements, the Option
Agreements and all documents evidencing expenditures secured hereby;
xlviii) After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as then required by
law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it
in said notice of sale, either as a whole or in separate parcels, and in such order as it may
determine at public auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said property by
public announcement at the time and place of sale, and from time to time thereafter may
postpone the sale by public announcement at the time and place of sale, and from time to time Exhibit 1 – Description of Option Agreements
Deed of Trust
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thereafter may postpone the sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser its Deed conveying the property so sold,
but without any covenant or warranty, express or implied. The recitals in the Deed of any
matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including
Trustor, Trustee or Beneficiary, may purchase at the sale. The Trustee shall apply the proceeds
of sale to payment of (1) the expenses of such sale, together with the reasonable expenses of
this trust including therein reasonable Trustee's fees or attorney's fees for conducting the sale,
and the actual cost of publishing, recording, mailing and posting notice of the sale; (2) the cost
of any search and/or other evidence of title procured in connection with such sale and revenue
stamps on Trustee's Deed; (3) all consideration paid by Beneficiary as referred to in the
Cooperation Agreements or Option Agreements, with accrued interest at the highest rate of
interest permitted by law; (4) all other sums then secured hereby; and (5) the remainder, if any,
to the person or persons legally entitled thereto;
xlix) Beneficiary may from time to time substitute a successor or successors to any
Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and
without conveyance to the successor trustee, the latter shall be vested with all title, powers, and
duties conferred upon any Trustee herein named or acting hereunder. Each such appointment
and substitution shall be made by written instrument executed by Beneficiary, containing
reference to this Deed of Trust and its place of record, which, when duly recorded in the proper
office of the county or counties in which the property is situated, shall be conclusive proof of
proper appointment of the successor trustee;
l) The pleading of any statute of limitations as a defense to any and all obligations
secured by this Deed of Trust is hereby waived to the full extent permissible by law;
li) Upon written request of Beneficiary stating that all obligations secured hereby
have been satisfied, and upon surrender of this Deed of Trust to Trustee for cancellation and
retention and upon payment of its fees, Trustee shall reconvey, without warranty, the property Exhibit 1 – Description of Option Agreements
Deed of Trust
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then held hereunder. The recitals in such reconveyance of any matters or fact shall be
conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be
described as “the person or persons legally entitled thereto”;
lii) The trust created hereby is irrevocable by Trustor;
liii) This Deed of Trust applies to, inures to the benefit of, and binds all parties
hereto, their heirs, legatees, devisees, administrators, executors, successors, and assigns. The
term “Beneficiary” shall include not only the original Beneficiary hereunder but also any
successors or assignees. In this Deed of Trust, whenever the context so requires, the
masculine gender includes the feminine and/or neuter, and the singular number includes the
plural. All obligations of Trustor hereunder are joint and several;
liv) Trustee accepts this Trust when this Deed of Trust, duly executed and
acknowledged, is made public record as provided by law. Except as otherwise provided by law
the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust
or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless
brought by Trustee;
lv) The undersigned Trustor requests that a copy of any notice of default and of any
notice of sale hereunder be mailed to Trustor at the address set forth in the first paragraph of
this Deed of Trust.
lvi) Trustor agrees at any time and from time to time upon receipt of a written request
from Beneficiary, to furnish to Beneficiary detailed statements in writing of income, rents, profits,
and operating expenses of the premises, and the names of the occupants and tenants in
possession, together with the expiration dates of their leases and full information regarding all Exhibit 1 – Description of Option Agreements
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rental and occupancy agreements, and the rents provided for by such leases and rental and
occupancy agreements, and such other information regarding the premises and their use as
may be requested by Beneficiary.
lvii) Trustor agrees that the indebtedness secured by this Deed of Trust is made
expressly for the purpose of financing the construction of housing that is to be sold exclusively,
at an affordable housing cost, to Moderate Income households, as provided in the Cooperation
Agreement.
lviii) Notwithstanding specific provisions of this Deed of Trust, non-monetary
performance hereunder shall not be deemed to be in default where delays or defaults are due
to: war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God;
acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; unusually severe weather; inability
to secure necessary labor, materials or tools; delays of any contractor or supplier; acts of the
other party; acts or failure to act of the City of Los Angeles or any other public or governmental
agency or entity (except that any act or failure to act of Beneficiary shall not excuse
performance by Beneficiary); or any other causes beyond the reasonable control or without the
fault of the party claiming an extension of time to perform. An extension of time for any such
cause (a “Force Majeure Delay”) shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause. If, however, notice by the
party claiming such extension is sent to the other party more than thirty (30) days after the
commencement of the cause, the period shall commence to run only thirty (30) days prior to the
giving of such notice. Times of performance under this Deed of Trust may also be extended in
writing by the Beneficiary and Trustor. Notwithstanding the foregoing, none of the foregoing
events shall constitute a Force Majeure Delay unless and until Trustor delivers to Beneficiary
written notice describing the event, its cause, when and how Trustor obtained knowledge, the
date the event commenced, and the estimated delay resulting therefrom. Trustor shall deliver
such written notice within fifteen (15) days after it obtains actual knowledge of the event. Exhibit 1 – Description of Option Agreements
Deed of Trust
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lix) (a) Subject to the extensions of time set forth in Section 28, and subject to the
further provisions of this Section 29, failure or delay by Trustor to perform any term or provision
respectively required to be performed under the Cooperation Agreements or the Option
Agreements or this Deed of Trust constitutes a default under this Deed of Trust.
(b) Beneficiary shall give written notice of default to Trustor, specifying the
default complained of by the Beneficiary. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default.
(c) Any failures or delays by Beneficiary in asserting any of its rights and
remedies as to any default shall not operate as a waiver of any default or of any such rights or
remedies. Delays by Beneficiary in asserting any of its rights and remedies shall not deprive
Beneficiary 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) If a monetary event of default occurs, prior to exercising any remedies,
Beneficiary shall give Trustor written notice of such default. Trustor shall have a reasonable
period of time after such notice is given within which to cure the default prior to exercise of
remedies by Beneficiary under the Note and/or this Deed of Trust. In no event shall Beneficiary
be precluded from exercising remedies if its security becomes or is about to become materially
impaired by any failure to cure a default or the default is not cured within ten (10) calendar days
after the notice of default is received or deemed received.
Exhibit 1 – Description of Option Agreements
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(e) If a non-monetary event of default occurs, prior to exercising any
remedies, Beneficiary shall give Trustor notice of such default. If the default is reasonably
capable of being cured within thirty (30) calendar days after such notice is received or deemed
received, Trustor shall have such period to effect a cure prior to exercise of remedies by the
Beneficiary. If the default is such that it is not reasonably capable of being cured within thirty
(30) days, and Trustor (i) initiates corrective action within said period, and (ii) diligently and in
good faith works to effect a cure as soon as possible, then Trustor shall have such additional
time as is reasonably necessary to cure the default prior to exercise of any remedies by
Beneficiary. In no event shall Beneficiary be precluded from exercising remedies if its security
becomes or is about to become materially jeopardized by any failure to cure a default or the
default is not cured within ninety (90) days after the notice of default is received or deemed
received.
(f) Any notice of default that is transmitted by electronic facsimile
transmission followed by delivery of a “hard” copy, shall be deemed delivered upon its
transmission; any notice of default 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 Trustor; and any notice of default that is sent by registered or certified mail, postage
prepaid, return receipt required shall be deemed received on the date of receipt thereof.
lx) This Deed of Trust shall be subordinate and junior to the following: the [insert
superior Deed of Trust with Absolute Assignment of Leases and Rents, Security
Agreement and Fixture Filing] recorded concurrently herewith securing a loan in the amount
of [insert amount of loan] made by [insert name of lender]. The Executive Director of the
Beneficiary or his designee shall execute such instruments as may be necessary to subordinate
the lien of this Deed of Trust to the deed of trust described in this Section 30, above. In the
event of a default or breach by Trustor of any security instrument securing a senior obligation
described in this Section 30, Beneficiary shall have the right to cure the default prior to
completion of any foreclosure. In such event, Beneficiary shall be entitled to reimbursement by
Trustor of all costs and expenses incurred by Beneficiary in curing the default. The amount of
any such disbursements shall be a lien against the Subject Property and added to the obligation
secured by this Deed of Trust until repaid, with interest at the highest rate permitted by law.
Exhibit 1 – Description of Option Agreements
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IN WITNESS WHEREOF Trustor has executed this Deed of Trust as of the day and year
set forth above.
Signature of Trustor
Dated: CULVER CITY REDEVELOPMENT AGENCY
By:
John Nachbar, Executive Director
APPROVED AS TO FORM:
CAROL SCHWAB, City Attorney
KANE BALLMER & BERKMAN
MURRAY O. KANE, Agency General Counsel
Exhibit 1 – Description of Option Agreements
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Exhibit 1 – Description of Option Agreements
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State of California )
) ss
County of _____________ )
On ____________________________________________________________ before
me, _______________________________________________, a Notary Public, personally
appeared who proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_______________________________________ (Seal)
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EXHIBIT A
LEGAL DESCRIPTION OF SUBJECT PROPERTY
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EXHIBIT B
LIST OF OPTION AGREEMENTS
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Attachment No. 8 Proposed UCC-1 With Attachment
ATTACHMENT
UCC-1 Financing Statement
Debtor: The Culver City Redevelopment Agency
Secured Party: The City of Culver City.
Item 4: Collateral Description.
This Financing Statement covers all of the following items and/or types of property, whether any
of the foregoing is owned now or acquired later; all accessions, additions, replacements, and
substitutions relating to any of the foregoing; all records of any kind relating to any of the
foregoing; and all proceeds relating to any of the foregoing (including insurance, general
intangibles and account proceeds):
(1) Any and all general intangibles, instruments, documents, chattel paper, accounts,
accounts receivable, cash, deposit accounts, contract rights and rights to payment pursuant to,
or in any way now or hereinafter arising out of, in connection with or otherwise relating to: (a)(i)
that certain Cooperation Agreement dated January 15, 2011 by and between the Culver City
Redevelopment Agency (“Agency”) and the City of Culver City (“City”), as amended by a First
Amendment to Cooperation Agreement dated February 22, 2011 (collectively as amended, the
“January 2011 Cooperation Agreement”) (ii) that certain Cooperation Agreement dated February
22, 2011 (the “February 2011 Cooperation Agreement”) by and between the Agency and City to
provide for implementation and funding for certain publicly-owned buildings (e.g., the Public
Safety Headquarters and the Veterans Memorial Building) as more particularly set forth in the
List of Projects attached thereto as Exhibit No. 1; (iii) those certain Option Agreements by and
between the Agency and City as more particularly described in Exhibit A attached hereto and
incorporated herein (collectively, the “Option Agreements”) which contain a liquidated damages
provision. The City’s purchase of the real property under the Option Agreement will occur on
the terms and conditions described in the Purchase and Sale Agreement attached to each
Option Agreement as Exhibit B (collectively, the “Purchase Agreements”) which also contain a
liquidated damages provision; (iv) that certain Pledge Agreement dated February 22, 2011 by
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and between the Agency and City; and (v) those certain Pledge Agreements made on behalf of
the City by the Agency as more particularly described in Exhibit B attached hereto and
incorporated herein (collectively, the “Pledge Agreements”), each and every agreement as now
existing or as it may hereinafter be amended, modified, supplemented, or superseded; (b) any
and all related documents, instruments, and agreements, as now existing or as may be
modified, supplemented, or amended from time to time; and (c) any and all present and future
collateral, of whatever kind or nature, now or hereafter granted to secure payment and
performance of any and all of the foregoing (collectively and severally referred to as the
“Collateral”); and
(2) Together with whatever is receivable or received when any of the Collateral or proceeds
thereof are sold, assigned, transferred, collected, exchanged, or otherwise disposed of, whether
such disposition is voluntary or involuntary, including without limitation (a) all accounts, contract
rights, chattel paper, instruments, general intangibles, money and rights to payment of any kind
now or hereafter arising from any such sale, assignment, transfer, collection, exchange, or other
disposition of any of the foregoing; and (b) all rights to payment, including without limitation,
rights to payment with respect to any cause of action affecting or relating to any of the foregoing
(referred to as the “Proceeds”).
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Exhibit A
List of Option Agreements
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Exhibit B
List of Pledge Agreements for Accounts
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Attachment No. 9 Proposed City Council Resolution
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Attachment No. 10 Proposed Redevelopment Agency Resolution
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