City of Culver City, California
Agenda Item Report
Meeting Date: 07/14/2014 Item Number: JPH-1
JOINT CITY COUNCIL-SUCCESSOR AGENCY PUBLIC HEARING: Approval of an
Implementation Agreement between the City of Culver City, the Successor
Agency to the Culver City Redevelopment Agency and Lowe Enterprises Real
Estate Group in Order to Convey Real Property Located at 8829, 8831, 8839, 8841,
8843 Exposition Boulevard; 8801, 8803 Washington Boulevard; 8824, 8825, 8828,
8830-8834, 8836, 8838, 8840, 8842, 8846 National Boulevard; 8900-8906, 8910-
8912, 8914-8918, 8920, 8926, 8930, 8936 Venice Boulevard to Develop a High
Quality Transit Oriented Development.
Contact Person
Sol Blumenfeld/CDD
Phone Number:
(310) 253-5700
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 (E-Mail) Meetings and Agendas – City Council/Successor agency
(07/09/14)
Department Approval:
Sol Blumenfeld (07/09/14)
City Attorney/Successor Agency General
Counsel Approval:
Carol Schwab (by H. Baker) (07/09/14)
City/SA Special Counsel Approval:
Murray Kane (07/09/14)
Chief Financial Officer Approval:
Jeff Muir (07/09/14)
City Manager/Executive Director Approval:
John M. Nachbar (07/09/14)
RECOMMENDATION:
Staff recommends the City Council and Successor Agency Board (SA) approve the
Implementation Agreement between the City, the Successor Agency, and Lowe
Enterprises Real Estate Group (Implementation Agreement) in order to convey real
property located at 8829, 8831, 8839, 8841, 8843 Exposition Boulevard; 8801, 8803
Washington Boulevard; 8824, 8825, 8828, 8830-8834, 8836, 8838, 8840, 8842, 8846
National Boulevard; 8900-8906, 8910-8912, 8914-8918, 8920, 8926, 8930, 8936 Venice
Boulevard (collectively Property) to develop a high quality transit oriented development
(Project).
City of Culver City, California
Agenda Item Report
PROCEDURE:
1. The Mayor/Chair seeks a motion from the City Council/Successor Agency Board to
receive and file the affidavits of publication and posting of notices and
correspondence received in response to the public hearing notices; and,
2. The Mayor/Chair calls for a staff report and the City Council/Board Members may
pose questions to staff as desired; and,
3. The Mayor/Chair seeks a motion to open the public hearing; and,
4. The Mayor/Chair seeks motion to close the public hearing after all public testimony
has been presented; and,
5. The City Council/Successor Agency Board discuss the item and arrives at a
decision.
BACKGROUND:
In early 2000 the City and former Culver City Redevelopment Agency (former CCRA)
commenced planning for a transit oriented development (TOD) project and began
assembling the property known as the “Triangle Site” around the (then) proposed Culver
City Expo Station at Venice and Exposition Boulevards. Expo light rail train (LRT)
construction commenced in 2006. The Triangle Site is located within Culver City and
Los Angeles.
A conceptual plan was approved by the former CCRA in 2007 that called for a mid-rise,
mixed use TOD surrounding a large central open space with ample subterranean
parking for the development and the Expo Station.
In anticipation of advance planning for the Property, the City and former CCRA
negotiated a Memorandum of Understanding (MOU) with the Los Angeles County
Metropolitan Transit Authority (LACMTA) to allow use of a portion of the LACMTA right-
of-way (Easement Area) for parking and development purposes. The MOU was
executed in January 2011. An Option and Perpetual Easement Agreement was
subsequently executed in September 2011 to provide an option for a permanent
easement to use the Easement Area.
The former CCRA committed approximately $3.1 million in 2010 to strengthen the Expo
train platform columns to accommodate subterranean parking and project development.
The Expo station was completed on June 20, 2012, and, after significant public input on
the project over the years, in January 2012, the City issued an RFP to solicit project City of Culver City, California
Agenda Item Report
developers and selected Lowe Enterprises Real Estate Group (Developer) to develop
the Project featuring residential, office, retail, restaurants and a hotel uses surrounding
one-third acre of central open space on the Property
On January 31, 2012, a letter agreement (Letter Agreement) was executed in advance
of entering into an Implementation Agreement for the Project. On February 1, 2012,
redevelopment agencies throughout the state of California, including the Culver City
Redevelopment Agency, were dissolved pursuant to operation of State Law. On
December 10, 2012, the Property was rezoned Planned Development (PD). The
Developer will be required to submit a Comprehensive Plan for Planning Commission
and City Council consideration and approval to effectuate the zoning and develop the
Project.
DISCUSSION:
The City owns seven parcels along Venice Boulevard (City Parcels), and the SA owns
11 parcels at Washington, National and Exposition Boulevards (SA Parcels) which
collectively substantially comprise the Property. The SA Parcels are approximately 4.15
net acres and the City Parcels are approximately 1.37 net acres.
The Project is included in the Successor Agency’s Long Range Property Management
Plan (LRPMP) approved on March 18, 2014 by the State’s Department of Finance
(DOF) in the property disposition category “Properties to be Sold for Future
Development.” In accordance with the LRPMP, the Letter Agreement and draft
Implementation Agreement, the Property sales price is $23,800,000, which is comprised
of the City Parcels with a fair market value of $15,600,000 and the SA Parcels with a
fair market value of $8,200,000.
Implementation Agreement
The Implementation Agreement provides for the disposition of the City Parcels and
the SA Parcels and the assignment of the Easement Area for development of the
Project including a transit plaza, office, retail, restaurants, residential and hotel uses
surrounding 1/3 acre of central open space above two subterranean parking levels
providing approximately 1,600 parking spaces on the 5.52 acre site. The parking
will serve the Project and Expo Transit Station.
The Implementation Agreement is divided into eight sections:
1. Definitions
2. Subject of Implementation Agreement City of Culver City, California
Agenda Item Report
3. Disposition of the City and Agency Parcels
4. Development of the Site
5. Covenants and Restrictions
6. Defaults, Remedies and Termination
7. General Provisions
8. Attachments
The major terms and conditions of the Implementation Agreement include:
? Scope of Development - Reflects the PD Zoning for the property to be effectuated
with the approval of a Comprehensive Plan submitted by the Developer for
Planning Commission and City Council approval.
? Schedule of Performance - Identifies all of the milestone tasks and the timing to
complete the Project.
? Sales Price – The fair market value of the City Parcels and SA Parcels, payable
one business day prior to the Close of Escrow and including the Art in Public
Places Fee (if applicable) and Developer’s share of escrow fees.
? Letter of Credit – Related to site restoration involving prebuilding permits for
grading and to secure reimbursement for relocation costs.
? City Parcels Purchase Price Credits – Credits toward the purchase price for Utility
Relocation, Infrastructure and Relocation Costs deducted from the sales price
based upon the Construction Contract approved at the Close of Escrow.
? Site Map Identifies the Project location.
? Assignable Agreements - LACMTA Option and Perpetual Easement Agreements
and Temporary Parking License and Reciprocal Easement, LACMTA Parcel
Private Use Lease Agreement, Construction License Agreement, City Parking
License for Shared Expo Parking during off-peak hours. City agrees to consult with
Developer and carefully consider any recommendations and objections raised by
Developer on the final forms of the Perpetual Easement Agreement, Reciprocal
Easement Agreement and other Agreements with the City of Los Angeles and
LACMTA, necessary to facilitate development of the Project.
? Restrictions on Transfers – Limits the transfer of the Project subject to City
approval for 5 years.
City of Culver City, California
Agenda Item Report
? Restrictions on Control - Limits ownership to the current Developer unless
otherwise approved by the City and limiting the use of the site for collateral for any
financial transaction.
? Representations - The City and SA are empowered to act to deliver the Property
and that the Developer is a duly organized and valid, existing corporation
empowered to act to deliver the Project.
? Relocation – Developer to fund, indemnify, and arrange for relocation of City
Parcels’ tenant(s) or reimburse the City for same, prior to Close of Escrow and the
City reserves the right to exercise the power of eminent domain to effectuate
tenant relocation in the event it is necessary to do so. Relocation costs include
any costs of acquisition of any interest in real property necessary to relocate
tenants. City shall have the right to draw on the Letter of Credit for relocation cost
recovery.
? City Participation Payment – City shall confirm the following: the Developer will pay
to the City 20% profit sharing above 25% of net return to the Project equity
investment following completion and stabilization as noted in the Participation
Agreement.
? Close of Escrow – City Conditions Precedent – Participation Agreement,
Construction Contract, Assignment of Reports and Plans, LACMTA Lease
Assignment, deposit of funds for the sales price of the Property and related
disposition costs, evidence of financing, insurance, no pending litigation,
construction loan, evidence of City of Los Angeles and City of Culver City
approvals, exercise of the LACMTA Option Agreement.
? Close of Escrow - Developer Conditions Precedent - No defaults in Agreement,
execution of documents, execution of the Participation Agreement, LACMTA
Lease Assignment, Assignment of Transfer of Easement Area Documents for
development rights of LACMTA easement area, City Parking License, City and SA
Grant Deeds, Reciprocal Easement Agreements with LACMTA for Perpetual
Easement Agreement, Approval of the Conditions of Title, Title Company payment,
City Delivery of Exercise of Option of LACMTA Option Agreement, Credits
established per Section 301.2 of the Implementation Agreement
? Condition of Title – No liens, encumbrances, easements or exceptions to title.
? Title Insurance – Title insurance on the conveyance of title to the City Parcels and
SA Parcels.
City of Culver City, California
Agenda Item Report
? Insurance and Indemnities – For Duration of Project until the Release of
Construction Covenants
? Right of Property Entry – For environmental testing.
? Evidence of Financing- Pursuant to the Schedule of Performance demonstrating to
the satisfaction of the City, Developer has obtained sufficient capital and
commitments for financing the Project acquisition and development.
? Parking Encroachments – Developer to obtain such necessary encroachments
from Culver City, the City of Los Angeles and CalTrans prior to Close of Escrow in
accordance with the Comprehensive Plan as that plan may be approved by Culver
City.
? Disclosure of Site Remediation – Developer to advise City if hazardous material is
discovered or released during environmental testing after Developer takes title of
City Parcels and SA Parcels.
? Issuance of Grading and Excavation Permits – Prior to issuance of building
permits, Developer may request and City may grant, grading and excavation
permits as permissible under the Culver City Municipal Code.
? Prevailing Wage- Developer agrees to pay prevailing wage to the extent required
by law in order to carry out the Project.
? Compliance with Laws – Developer agrees to design and construct the Project
pursuant to all applicable laws.
? Release of Construction Covenants – Within 15 days of Developer notice that the
Project has been completed pursuant to approved plans, the City shall furnish a
Release of Construction Covenants document in a form to be recorded against the
site and shall not unreasonably withhold and shall furnish the Release within 10
days of such Developer notice.
? Defaults – Developer fails to comply with provisions of Implementation Agreement;
defaults under the Construction Loan, fails to timely perform under the Schedule of
Performance; halts construction for more than 3 months or fails to comply with the
completion dates for any time allocated in the Schedule of Performance, halts
construction for more than 30 consecutive days for any cause not exempted in the
Schedule of Performance, fails to obtain required approvals, licenses or permits or
permits are withdrawn or suspended for more than 30 consecutive days, or
Developer fails to pay debts when due. If the default is not cured within 30 days City of Culver City, California
Agenda Item Report
after notice, or monetary default after 90 consecutive days, the Developer is liable
for damages.
? Termination by Developer- The Developer may terminate the Implementation
Agreement prior to Close of Escrow if the City does not deliver clear title to the City
Parcels; the SA cannot deliver clear title to the SA Parcels, the City and SA fail to
cure default within 30 consecutive days of Notice; one or more conditions
precedent to Close of Escrow is not satisfied; the Developer is unable after diligent
and good faith efforts to deliver the Project due to one or more reasons beyond its
control to obtain construction financing. In such event, both parties share 50% of
any escrow cancellation costs.
? Right of Reverter – The City and SA retain their respective rights, at their options,
to reenter and take the City Parcels and SA Parcels, as appropriate, if the
Developer is in default.
? Enforced Delay – Neither party shall be in default and the Performance Schedule
shall be extended due to Force Majeure.
FISCAL ANALYSIS:
The Implementation Agreement reflects the property disposition described in the
LRPMP with land sales proceeds paid to the taxing entities. The Implementation
Agreement requires the SA to convey the SA Parcels to the Developer for $8.2 million.
This is amount is $7.4 million greater than the fair market value supported by the SA
Parcels on an individual basis, and $100,000 less than the estimated fair reuse value
of the SA Parcels pursuant to the Health and Safety Code Section 33433 Summary
Report (attached).
The Implementation Agreement requires the City to convey the City Parcels to the
Developer for $15.6 million less the credits to the land price as defined in the
Implementation Agreement and the Health and Safety Code Section 33433 Summary
Report.
ATTACHMENTS:
1. Implementation Agreement and attachments;
2. Summary report pursuant to California Health and Safety Code Section 33433;
3. Proposed City Council resolution approving the Implementation Agreement with
Lowe Enterprises; City of Culver City, California
Agenda Item Report
4. Proposed Successor Agency resolution approving the Implementation Agreement
with Lowe Enterprises.
MOTION:
That the City Council:
1. Approve an Implementation Agreement between the City and the Successor
Agency and Lowe Enterprises Real Estate Group in order to convey the real
property located at [8829, 8831, 8840, 8841, and 8843 Exposition Boulevard; 8801,
8803, 8824, 8825, 8828, 8830-8834, 8836, 8839, 8842, and 8846 National
Boulevard; 8900-8906, 8910-8912, 8914-8918, 8920, 8926, 8930, and 8936 Venice
Boulevard] for the development of a high quality transit oriented development; and
(2) related actions; and,
2. Authorize the City Attorney and City Special Counsel to review/prepare the
necessary documents; and,
3. Authorize the City Manager to execute such documents on behalf of the City.
AND
That the Successor Agency to the Culver City Redevelopment Agency:
1. Approve and recommend to its Oversight Board approval of (1) an Implementation
Agreement between the City of Culver City and the Successor Agency and Lowe
Enterprises Real Estate Group in order to convey the real property located at [8829,
8831, 8840, 8841, and 8843 Exposition Boulevard; 8801, 8803, 8824, 8825, 8828,
8830-8834, 8836, 8839, 8842, and 8846 National Boulevard; 8900-8906, 8910-
8912, 8914-8918, 8920, 8926, 8930, and 8936 Venice Boulevard] for the
development of a high quality transit oriented development; (2) the Successor
Agency’s use of the net purchase price proceeds received by the Successor
Agency after close of escrow in accordance with the Dissolution Act and other
applicable law; and (3) related action; and,
2. (Subject to the Approval of the Oversight Board and the State Department of
Finance) Authorize the Successor Agency General and Special Counsel to
review/prepare the necessary documents; and,
City of Culver City, California
Agenda Item Report
3. (Subject to the Approval of the Oversight Board and the State Department of
Finance) Authorize the Executive Director to execute such documents on behalf of
the Successor Agency.
MEETING DATE: 07/14/2014
AGENDA ITEM: JOINT CITY COUNCIL-SUCCESSOR AGENCY AGENDA
ITEM: Approval of an Implementation Agreement
between the City and the Successor Agency and Lowe
Enterprises Real Estate Group in order to convey the real
property located at 8829, 8831, 8839, 8841, 8843
Exposition Boulevard; 8801, 8803 Washington
Boulevard; 8824, 8825, 8828, 8830-8834, 8836, 8838 8840,
8842, 8846 National Boulevard; 8900-8906, 8910-8912,
8914 -8918, 8920, 8926, 8930, 8936 Venice Boulevard to
develop a high quality transit oriented development.
ATTACHMENTS
Pages
1. Implementation Agreement 1-222
2. 33433 Report 223-231
3. Proposed City Council Resolution 232-240
4. Proposed Successor Agency Resolution 241-249
IMPLEMENTATION AGREEMENT
by and among
THE CITY OF CULVER CITY,
a municipal corporation and charter city of the State of California
and
THE SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT AGENCY, a
successor agency under California Health & Safety Code Section 34173,
and
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
(Washington National)
Attachment No. 1
1100. DEFINITIONS .....................................................................................................................4
101. Definitions ..............................................................................................................4
102. Singular and Plural Terms ....................................................................................16
103. Accounting Principles ..........................................................................................16
104. References and Other Terms ................................................................................16
105. Attachments Incorporated ....................................................................................17
200. SUBJECT OF IMPLEMENTATION AGREEMENT ....................................................17
201. Purpose of the Implementation Agreement ..........................................................17
202. The Redevelopment Plan .......................................................................................17
203. The Project Area ..................................................................................................17
204. The Site ................................................................................................................17
204.1 City Parcels and Agency Parcels ...............................................................18
204.2 Easement Area ...........................................................................................18
204.3 Transfers ..................................................................................................18
205. Parties to the Agreement ......................................................................................19
205.1 The City .....................................................................................................19
205.2 The Successor Agency ...............................................................................19
205.3 Developer ...................................................................................................19
206. Prohibition Against Transfer and Change in Management and Control of
Developer ...................................................................................................19
206.1 Prohibition................................................................................................19
206.2 Change of Ownership; Restriction on Investments ...................................20
206.3 Permitted Transfers ..................................................................................20
206.4 Request for Transfer or Change of Control; Approval ............................21
207. Third Party Beneficiaries .......................................................................................21
208. Representations and Warranties .............................................................................22
208.1 City’s Representations ...............................................................................22
208.2 Successor Agency’s Representations .........................................................22
208.3 Developer’s Representations .....................................................................23
209. Special Limited Obligation ..................................................................................24
300. DISPOSITION OF THE CITY PARCELS AND THE AGENCY PARCELS ..............25
301. Sale and Purchase ...................................................................................................25
301.1 Sale and Purchase of the City Parcels and the Agency Parcels; Purchase
Prices ........................................................................................................25
301.2 City Parcels Purchase Price Credits ...........................................................26
301.3 City and Agency Parcels Purchase Price Payments; Scheduled Close of
Escrow......................................................................................................26
301.4 Relocation; Developer’s Relocation Obligations Payments ....................27
301.5 City Parcels Participation Payments ........................................................29
302. Escrow ..................................................................................................................29
302.1 Escrow Instructions ..................................................................................29
302.2 Costs of Escrow........................................................................................30
302.3 General Provisions Applicable to Escrow Agent.......................................30
Attachment No. 1
2302.4 Authority of Escrow Agent ......................................................................31
302.5 Termination of Escrow ............................................................................32
302.6 Closing of Escrow ....................................................................................33
302.7 Closing Procedure ....................................................................................33
303. Conditions Precedent to Closing ..........................................................................34
303.1 City’s Conditions ......................................................................................34
303.2 Successor Agency Conditions ..................................................................35
303.3 Developer’s Conditions ...............................................................................36
304. Form of Deeds ......................................................................................................37
305. Time For and Place of Delivery of Deeds and other Documents ........................37
306. Condition of Title ...................................................................................................37
307. Title Insurance ......................................................................................................39
308. Insurance ..............................................................................................................39
308.1 General Requirements ..............................................................................39
308.2 Endorsements .............................................................................................40
308.3 Deductible and Self-Insured Retention ....................................................41
308.4 Evidence of Insurance ..............................................................................41
308.5 Failure to Maintain Coverage ..................................................................41
308.6 Insurance for Contractors and Subcontractors ...........................................41
309. Taxes and Assessments ........................................................................................42
310. Occupants of the City Parcels and the Agency Parcels ........................................42
311. Zoning of the Site ...................................................................................................42
312. Condition of the Site; Release of City and Successor Agency ............................42
313. Preliminary Work by Developer ..........................................................................43
314. Evidence of Financing ..........................................................................................44
315. [INTENTIONALLY OMITTED] ........................................................................46
316. Assignment of Agreements; City Parking License ..............................................46
316.1 Assignment of Agreements ......................................................................46
316.2 City Parking License ................................................................................46
317. Real Estate Commissions .......................................................................................47
318. Parking Encroachments ........................................................................................47
319. Developer Responsibilities after Closing ...............................................................47
320. Required Disclosures after Closing ......................................................................48
321. Taxes and Assessments ........................................................................................49
322. City Rights of Entry ...............................................................................................49
323. Indemnification ....................................................................................................49
400. DEVELOPMENT OF THE SITE ....................................................................................50
401. Scope of Development; Project Entitlements ......................................................50
401.1 Scope of Development ..............................................................................50
401.2 PD Zone Requirements ...............................................................................52
401.3 Consultation and Coordination ................................................................52
401.4 Defects in Plans........................................................................................52
402. [INTENTIONALLY OMITTED] ........................................................................53
403. Permits..................................................................................................................53
404. Schedule of Performance .......................................................................................54
Attachment No. 1
3405. Project Costs...........................................................................................................54
406. Construction Budget; Construction Loan ...............................................................54
407. Construction Contract ..........................................................................................55
408. Rights of Access .....................................................................................................56
409. Compliance with Laws ...........................................................................................56
409.1 Prevailing Wages ......................................................................................57
410. Nondiscrimination in Employment .........................................................................58
411. Levies and Attachments on Site .............................................................................58
412. Financing of the Improvements .............................................................................58
412.1 No Encumbrances Except Mortgages and Deeds of Trust ........................58
412.2 Holder Not Obligated to Construct Improvements .....................................59
412.3 Default Notice to Mortgagee or Deed of Trust Holders; Right to Cure ....59
412.4 Failure of Holder to Complete Improvements ..........................................61
412.5 Right of City and Successor Agency to Cure Mortgage or Deed of Trust
Default......................................................................................................61
413. Release of Construction Covenants .......................................................................62
414. Bodily Injury and Property Damage Indemnification ..........................................63
415. Indemnification ....................................................................................................63
416. Disclaimer of Responsibility of City....................................................................64
500. COVENANTS AND RESTRICTIONS ..........................................................................64
501. Covenant Regarding Specific Uses ......................................................................64
502. Covenants Regarding Maintenance ......................................................................65
503. Covenants Regarding Nondiscrimination ............................................................66
504. Effect of Violation of this Section .........................................................................67
600. DEFAULTS, REMEDIES AND TERMINATION ...........................................................68
601. Defaults - General ...................................................................................................68
602. Institution of Legal Actions ...................................................................................69
603. Termination by Developer Prior to Closing ...........................................................69
604. Termination by City ...............................................................................................70
604.1 Termination Prior to Closing .....................................................................70
604.2 Termination After Closing .........................................................................71
605. Applicable Law ....................................................................................................72
606. Acceptance of Service of Process ........................................................................72
607. Rights and Remedies Are Cumulative ...................................................................72
608. Damages .................................................................................................................72
609. Specific Performance .............................................................................................73
610. Inaction Not a Waiver of Default ...........................................................................73
611. Attorneys’ Fees ....................................................................................................73
612. Right of Reverter ..................................................................................................74
700. GENERAL PROVISIONS ..............................................................................................75
701. Notices, Demands and Communications Between the Parties ...............................75
702. Intentionally Omitted .............................................................................................76
703. Conflicts of Interest ..............................................................................................76
Attachment No. 1
4704. Warranty Against Payment of Consideration for Agreement ..............................76
705. Nonliability of City and Successor Agency Officials and Employees ................77
706. Enforced Delay; Extension of Times of Performance ...........................................77
707. Plans and Data ......................................................................................................78
708. Approval by City and Developer ...........................................................................78
709. Relationship Between City and Developer ..........................................................78
710. [INTENTIONALLY OMITTED] ........................................................................78
711. Computation of Time .............................................................................................78
712. Legal Advice ........................................................................................................79
713. Time of Essence .....................................................................................................79
714. Disclosure Authorization .......................................................................................79
715. Administration......................................................................................................79
716. Mutual Cooperation ...............................................................................................80
717. Ground Breaking and Grand Openings ................................................................80
718. Estoppel Letters ....................................................................................................80
719. Counterparts ...........................................................................................................80
720. Entire Agreement, Waivers and Amendments .......................................................80
721. Time for Acceptance of Agreement by City ........................................................81
Attachment No. 1
5
ATTACHMENT NO. 1-A WASHINGTON NATIONAL SITE MAP
[Depicts Agency Parcels, City Parcels, Easement Area, and LACMTA
Parcel]
ATTACHMENT NO. 1-B WASHINGTON NATIONAL PARKING
ENCROACHMENTS
ATTACHMENT NO. 2-A LEGAL DESCRIPTION – AGENCY PARCELS
ATTACHMENT NO. 2-B LEGAL DESCRIPTION – CITY PARCELS
ATTACHMENT NO. 2-C LEGAL DESCRIPTION – EASEMENT AREA
ATTACHMENT NO. 2-D LEGAL DESCRIPTION – LACTMTA PARCEL
ATTACHMENT NO. 3 SCOPE OF DEVELOPMENT
ATTACHMENT NO. 4 SCHEDULE OF PERFORMANCE
ATTACHMENT NO. 5-A SUCCESSOR AGENCY GRANT DEED
ATTACHMENT NO. 5-B CITY GRANT DEED
ATTACHMENT NO. 5-C TRANSFER OF EASEMENT AREA DOCUMENTS
ATTACHMENT NO. 6 RELEASE OF CONSTRUCTION COVENANTS
ATTACHMENT NO. 7 PARTICIPATION AGREEMENT
ATTACHMENT NO. 8 ASSIGNMENT OF CONSTRUCTION CONTRACT
ATTACHMENT NO. 9 ASSIGNMENT OF PLANS, REPORTS AND DATA
ATTACHMENT NO. 10 ASSIGNMENT AND ASSUMPTION AGREEMENT
ATTACHMENT NO. 11 TITLE OBJECTION LETTER
Attachment No. 1
6IMPLEMENTATION AGREEMENT
(Washington National)
This Implementation Agreement (“Implementation Agreement”) is entered into by and
among THE CITY OF CULVER CITY, a municipal corporation and charter city of the State of
California (“City”), THE SUCCESSOR AGENCY OF THE CULVER CITY
REDEVELOPMENT AGENCY, a successor agency under California Health & Safety Code
Section 34173 (“Successor Agency”), and LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation (“Developer”). This Implementation Agreement is dated, for reference
purposes, as of the date the last of the City and the Successor Agency executes this
Implementation Agreement (“Effective Date”). The City, the Successor Agency and Developer
agree as follows:
RECITALS
The following recitals are a substantive part of this Implementation Agreement. All
capitalized terms set forth in the recitals shall have the meanings ascribed to such terms in
Section 101 hereof.
A. On January 31, 2012, following a publicly issued request for proposals, Developer
was selected to negotiate an agreement with the City regarding the acquisition and development
of the Site. Thereafter, the City and Developer entered into that certain Commitment Letter
Agreement dated January 31, 2012 (the “Original Agreement”), a public record on file in the
office of the City Clerk. All terms not otherwise defined herein have the meaning used in the
Original Agreement.
B. The Original Agreement provides that Developer shall acquire the Site and
thereafter develop and construct the Project - a high quality, transit oriented, place making
development on the Site. The Site is composed of the Agency Parcels, the City Parcels, and the
Easement Area located on LACMTA Parcel owned by the Los Angeles County Metropolitan
Transportation Authority (“LACMTA”), all as hereinafter described and defined.
C. With the exception of a portion of the City Parcels, the Site is located within the
geographical area of the Culver City Redevelopment Project, Component Area 3 (“Project
Area”). The Project complies with and furthers the goals and objectives of the Redevelopment
Plan for the Project Area approved and adopted by the City Council of the City on November 23,
1998 by Ordinance No. 98-014, as amended on November 23, 1998 by Ordinance No. 98-015,
and as further amended on January 12, 2004 (“Redevelopment Plan”).
D. On or about June 28, 2011, ABIX 26 (as amended from time to time, the
“Dissolution Law”) became effective and was added to the laws of the State of California,
providing for the dissolution and winding down of redevelopment agencies throughout the State,
including the Culver City Redevelopment Agency (the “Former Agency”). On January 9, 2012,
pursuant to the Dissolution Law, the City elected to serve as the Successor Agency, and the
Successor Agency, as a separate public entity from the City, administers the dissolution and
winding down of the Former Agency. On February 1, 2012, pursuant to the Dissolution Law, the
Attachment No. 1
7Former Agency was dissolved by operation of law, and upon dissolution, all assets, properties
and contracts of the Former Agency, including the MOU and the Agency Parcels, were
transferred by operation of law to the Successor Agency pursuant to the terms of Health & Safety
Code Section 34175(b) and the Successor Agency was thenceforth obligated pursuant to the
terms of Health & Safety Code Section 34177 to make payments due for enforceable obligations
and to perform obligations required pursuant to enforceable obligations, including but not limited
to the MOU.
E. On or about March 14, 2011, prior to either the adoption or effectiveness of the
Dissolution Law, the Agency Parcels were conveyed to the City. On or about October 10, 2012,
in recognition of the passage and effectiveness of the Dissolution Law, and in accordance with
the terms and provisions of the Dissolution Law, the Agency Parcels were conveyed to the
Successor Agency with the same legal effect as if title to the Agency Parcels were held by the
Former Agency on January 31, 2012.
F. LACMTA is a public entity created by the State Legislature pursuant to PUC
sections 130050.2 et. seq, for many purposes including, but not limited to, the design,
construction, and operation of rail and bus transit systems and other transportation facilities in
Los Angeles County, including the Los Angeles – Exposition light rail transit project from Metro
Rail station at 7th and Flower Streets in the City of Los Angeles to the Downtown area of the
City of Santa Monica (“EXPO Light Rail Project”).
G. Phase 1 of the EXPO Light Rail Project is an approximately 9 mile light rail line
extending southward from Downtown Los Angeles to Exposition Park, and then westward along
Exposition Boulevard to Venice Boulevard/Robertson Boulevard, and traversing through and
ending at the aerial Culver City Station located on the LACMTA Parcel. Phase 2 of the EXPO
Light Rail Project is an approximately 6.6 mile light rail line extending westward from the
Culver Station and ending at the Downtown Santa Monica Station in Santa Monica, California.
H. The Exposition Metro Line Construction Authority (“Authority”) is a public
entity created by the California State Legislature pursuant to Public Utilities Code (“PUC”)
section 132600 for the purpose of awarding and overseeing final design and construction
contracts for the completion of the EXPO Light Rail Project, including the EXPO Light Rail
Project Culver City Station and ancillary improvements located within the LACMTA Parcel as
illustrated on Attachment No. 1-A.
I. LACMTA, Authority, City and the Former Agency have heretofore entered into
that certain Memorandum of Understanding executed as of January 18, 2011 (“MOU”), a public
record on file in the office of the City Clerk, which established mutual obligations of the parties
pertaining to the EXPO Station and the Project and requires the undertaking of certain
expenditures and related commitments to implement and carry out the Expo Light Rail Project
and the Project which is the subject of this Implementation Agreement.
J. In accordance with and as required by the MOU, LACMTA has heretofore
granted the City an option pursuant to that certain Option Agreement for Perpetual Easement
dated September 29, 2011 (“Option Agreement”) by and among LACMTA, the Former Agency
and the City, recorded on October 3, 2011 in the Official Records of Los Angeles County,
Attachment No. 1
8California (the “Official Records”) as Instrument No. 20111337175, a public record on file in the
office of the City Clerk, to acquire an easement over the Easement Area to develop and construct
a portion of the Project, including, among other things: (i) the Isolation Wall, (ii) the Ancillary
Uses (as defined therein), and (iii) the Parking Garage, pursuant to a Perpetual Easement
Agreement to be executed by the City and LACMTA substantially in the form attached as
Exhibit F thereto (“Perpetual Easement Agreement”), and pursuant to a Reciprocal Easement
Agreement to be entered into between LACMTA and the City consistent with the provisions of
the Option Agreement and the Perpetual Easement Agreement.
K. In consideration of the grant of the option by LACMTA over the Easement Area,
the City and Former Agency (i) granted to LACMTA certain parking rights in the Agency
Parcels, subject to the rights to relocate such parking to the Ince Parking Structure in Culver
City, pursuant to that certain License Agreement for Use, Operation, Maintenance and Repair of
Temporary Parking Spaces dated September 29, 2011 (“Parking License Agreement”), a public
document on file in the office of the City Clerk; and (ii) granted to Authority a construction
license to construct a temporary parking lot on the Agency Parcels pursuant to that certain
License Agreement for Construction of Temporary Parking Spaces dated September 28, 2011
(“Construction License Agreement”), a public record on file in the office of the City Clerk.
Authority has constructed the Temporary Parking Spaces on the Agency Parcels and is using the
Temporary Parking Spaces in accordance with the Construction License Agreement and the
Parking License Agreement.
L. The Option Agreement and the executed agreements and agreements
contemplated therein to be executed are intended to satisfy the legal parking requirements for the
EXPO Station and the Project, respectively. Phase 1 of the EXPO Light Rail Project requires
600 parking spaces for the EXPO Station, which are currently located on the Agency Parcels
pursuant to the Parking License Agreement, and which are then to be located within the Parking
Garage. Said agreements provide that upon completion of Phase 2 of the EXPO Light Rail
Project, the parking required to service the EXPO Station will be reduced to 300 parking spaces.
The residual parking no longer required for the EXPO Station provides additional parking to
service increased office and residential development of the Project. In order to effectuate the
Project in compliance with such agreements and the Original Agreement, the City and the
Successor Agency shall at the Closing (i) assign their respective rights, interests and obligations
in and to the Parking License Agreement and the Construction License Agreement to Developer
(provided that Successor Agency shall retain any applicable obligations thereunder with respect
to relocation and maintenance of EXPO Station parking to the Ince Parking Structure, and at the
Closing Developer shall assume such obligations; and (ii) execute and assign their respective
rights, interests and obligations in and to the Reciprocal Easement Agreement and the Perpetual
Easement Agreement to Developer, and at the Closing Developer shall assume such obligations;
such assignments and assumptions to be effectuated at the Closing pursuant to a Transfer of
Easement Area Documents substantially in the form of the “Transfer of Easement Area
Documents” attached hereto and labeled Attachment No. 5-C.
M. Pursuant to H&S Code Section 34191.5(b) of the Dissolution Act, on July 18, 2013,
the Successor Agency prepared and submitted to the California Department of Finance (the “DOF”)
for approval its initial Long Range Property Management Plan, as approved by its Oversight Board,
that addressed the disposition and use of certain real properties of the Former Agency, including the
Attachment No. 1
9disposition of the Agency Parcels to Developer pursuant to the Original Agreement. On March 13,
2014, the Successor Agency prepared and submitted to the DOF for approval certain revisions to its
initial Long Range Property Management Plan, as approved by its Oversight Board. The DOF, by
letter dated March 18, 2014, issued its determination on the Successor Agency’s Long Range
Property Management Plan (comprised solely of the July 18, 2013 initial submittal as revised by the
March 13, 2014 revision) (“LRPMP”), approving the Successor Agency’s use and disposition of all
the properties listed in the LRPMP, including the Agency Parcels. The DOF-approved LRPMP
provides for the Successor Agency’s sale and transfer of the Agency Parcels to Developer (together
with the City’s conveyance to Developer of the City Parcels) pursuant to the Original Agreement.
N. The purpose of this Implementation Agreement is to effectuate the Original
Agreement and the Successor Agency’s approved Long Range Property Management Plan by
clarifying certain obligations of the Parties, including (i) to provide for a Project scope of
development; (ii) to provide for a Project schedule of performance; (iii) to clarify certain terms
and conditions for payment of the City Purchase Price by Developer to the City for the City
Parcels and for payment of the Agency Parcels Purchase Price by Developer to the Successor
Agency for the Agency Parcels; (iv) to provide for certain assignment of rights associated with
the heretofore referenced agreements in Recitals H and I related to parking and uses of the Site
and (v) for such other clarifications to the Original Agreement as mutually agreeable to the City,
the Successor Agency and Developer as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is
hereby acknowledged, the City, the Successor Agency and Developer hereby agree as follows:
100. DEFINITIONS
101. Definitions
The following terms as used in the Agreement shall have the meanings given unless
expressly provided to the contrary:
“Act” means the California Community Redevelopment Law, Health and Safety
Code Section 33000, et seq.
“Affiliate” shall mean (i) any Person directly or indirectly controlling, controlled
by or under common control with another Person, (ii) any Person owning or controlling 50% or
more of the outstanding voting securities of such other Person, (iii) any officer, director or
partner of such Person, or (iv) if such other Person is an officer, director or partner, any company
for which such Person acts in any such capacity. The term “control” as used in the immediately
preceding sentence means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of the controlled Person, or the power to control
election of the board of directors.
“Agency Parcels” means those certain parcels of real property owned by the
Successor Agency, as depicted on the “Washington National Site Map” attached hereto, labeled
“Attachment No. 1-A” and incorporated herein by this reference, and as described in the “Legal
Description – Agency Parcels” attached hereto, labeled “Attachment No. 2-A” and incorporated
herein by this reference.
Attachment No. 1
10“Agency Parcels Purchase Price” means the purchase price to be paid by
Developer to the Successor Agency for the Agency Parcels, in the amount of Eight Million Two
Hundred Thousand Dollars ($8,200,000).
“Agreement” means the Original Agreement as implemented by this
Implementation Agreement, including all exhibits attached to this Implementation Agreement,
which exhibits are incorporated herein by this reference, all other documents incorporated herein
by reference, and all other documents referenced in this Implementation Agreement for
execution by the Parties upon the Closing.
“ALTA Policy” is defined in Section 307.
“Anti-Terrorism Laws” shall mean all laws relating to terrorism or money
laundering, including, without limitation, the Executive Order and the Bank Secrecy Act, as
amended by the USA Patriot Act.
“Art in Public Places Program” means the Art in Public Places Program duly
adopted by the City Council of the City and set forth and described in Sections 15.06.100
through 15.06.175 of the Culver City Municipal Code.
“Assignment of Construction Contract” means an assignment signed by
Developer and delivered to and for the benefit of the City, substantially in the form attached to
the Agreement as Attachment No. 8. The City acknowledges that such assignment will be
subordinate to the lien of any deed of trust, mortgage, collateral assignment and/or assignment
delivered by Developer to the provider of any Construction Loan approved by the City pursuant
to its approval of Developer’s Evidence of Financing as provided herein.
“Assignment of Plans, Reports and Data” means an assignment signed by
Developer and delivered to and for the benefit of the City, substantially in the form attached to
the Agreement as Attachment No. 9. The City acknowledges that such assignment will be
subordinate to the lien of any deed of trust, mortgage, collateral assignment and/or assignment
delivered by Developer to the provider of any Construction Loan approved by the City pursuant
to its approval of Developer’s Evidence of Financing as provided herein.
“Bank Secrecy Act” means the Currency and Foreign Transactions Reporting Act
of 1970, Pub. L. No. 91-508, 84 Stat. 1305 (1970), as amended from time to time.
“CEQA” means the California Environmental Quality Act, California Public
Resources Code Section 21000 et seq., the CEQA Guidelines (California Code of Regulations,
Title 14, Division 6, Chapter 3, Sections 15000-15387) as hereinafter modified or amended.
“Change of Control” means the issuance or transfer of ownership interests in
Developer to any Person, when, as a result of such issuance or transfer, either (i) a new Person or
entity becomes the direct or indirect owner of more than fifty percent (50%) of the ownership
interests of Developer, or (ii) a Person holding more than fifty percent (50%) of Developer no
longer holds an ownership interest in Developer of more than fifty percent (50%). “Change of
Control” shall exclude a Permitted Transfer.
Attachment No. 1
11“City” means The City of Culver City, a municipal corporation and a charter city
of the State of California, having its offices at 9770 Culver Boulevard, Culver City, California
90232-0507, and any assignee of, or successor to, the rights, powers, and responsibilities of the
City.
“City Documents” means, collectively, the Agreement, Right of Entry,
Assignment of Plans, Reports and Data, Assignment of Construction Contract, Assignment of
Agreements, Parking License Agreement, Construction License Agreement, Reciprocal
Easement Agreement, Perpetual Easement Agreement, Transfer of Easement Area Document,
LACMTA Private Use Lease Assignment(s), City Parking License, Participation Agreement,
Relocation Agreement, the City Grant Deed, and any and all other agreements, amendments or
modifications entered into by and between the City and Developer to effect the purposes of the
foregoing.
“City’s Conditions Precedent to Closing” is defined in Section 303.1.
“City Grant Deed” means the grant deed by which City will convey the City
Parcels to Developer, substantially in the form attached to the Agreement as Attachment No. 5-
B.
“City Manager” means the City Manager of the City or designee.
“City of Los Angeles” means the City of Los Angeles, California, a California
municipal corporation.
“City of Los Angeles Art Development Fee” means the Art Development Fees
program set forth and described in Sections 91.107.4.6.1 through 91.107.4.6._ of the City of Los
Angeles Municipal Code.
“City Parcels” means those certain parcels of real property owned by the City, as
depicted on the Washington National Site Map (Attachment No. 1-A) and as described in the
“Legal Description – City Parcels” attached hereto, labeled “Attachment No. 2-B” and
incorporated herein by this reference.
“City Parcels Purchase Price” means the purchase price to be paid by Developer
to the City for the City Parcels, in the amount of Fifteen Million Six Hundred Thousand Dollars
($15,600,000), subject to the City Parcels Purchase Price Credits and the City Parcels
Participation Payments.
“City Parcels Purchase Price Credits” means the credits to be applied against
the City Parcels Purchase Price at Close of Escrow in favor of Developer in the amounts set forth
in Section 301.2.
“City Parcels Participation Payments” means the payments by Developer to
City of additional consideration for the performance by the City of its obligations set forth herein
and in related documents referred to herein, as set forth in the Participation Agreement.
“Closing” or “Close of Escrow” is defined in Section 302.6.
Attachment No. 1
12“Completion” shall mean, with regard to development of the Project, the
satisfaction of each of the following events: (i) the City shall have determined that development
of the Project has been completed in accordance with the Agreement, the Scope of Development
and the Plans approved by the City, (ii) certificates of occupancy shall have been issued with
respect to the Improvements, (iii) the time for Developer’s contractor, suppliers and
subcontractors to file a claim pursuant to Civil Code Sections 3115-3117 has expired or
Developer has delivered to the City unconditional lien releases for its contractor, suppliers and
subcontractors, and any mechanic’s liens that have been recorded or stop notices that have been
delivered have been paid, settled or otherwise extinguished, discharged, released, waived,
bonded around or insured against, provided that a notice of completion pursuant to Civil Code
Section 3117 has been duly recorded in the Official Records.
“Consent to Assignment” means a consent, executed by the General Contractor,
substantially in the form of Exhibit “B” attached to the Assignment of Construction Contract.
“Construction Contract” is defined in Section 314(c).
“Construction Loan” is defined in Section 314(b).
“Construction Lender” means the Institutional Lender making the Construction
Loan to Developer for Developer to Develop and Cause Construction of the Improvements and
to fund other costs of development of the Site.
“Days” shall mean calendar days and the statement of any time period herein
shall be calendar days and not working days, unless otherwise specified.
“Default” means the failure of a Party to perform any action or covenant required
by the Agreement within the time periods provided therein following notice and opportunity to
cure, as set forth in Section 701.
“Develop and Cause Construction” means, with respect to any component of the
Project, that Developer shall develop and cause a qualified and licensed contractor to construct
such component. As used in the immediately preceding sentence, “cause” shall include without
limitation Developer taking all necessary steps and signing all necessary documents to effectuate
such construction activities to be performed by duly licensed construction contractors or to
otherwise be done in compliance with all applicable contractor licensing requirements of the
State of California. The Parties acknowledge that while Developer may be a licensed general
contractor, they do not intend, and nothing in the Agreement shall be interpreted to mean, that
Developer is acting as a general contractor.
“Developer” means LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation, whose address is 11777 San Vicente Boulevard, Suite 900, Los Angeles,
California 90049, Attention: Thomas W. Wulf, Senior Vice President, and any permitted
successors, assignees or nominee.
“Developer Equity” shall mean funds provided by Developer for payment of
Developer’s share of Project Costs not funded by the Construction Loan and shall not include the
Construction Loan or any other funds borrowed by Developer.
Attachment No. 1
13“Developer’s Conditions Precedent to Closing” is defined in Section 303.2.
“Developer’s Relocation Obligations Payments” is defined in Section 301.4.
“Easement Area” means an area over the northerly 91 feet of the LACMTA
Parcel, including surface, air and subterranean portions thereof, as depicted on Attachment No.
1-A and as described on the “Legal Description – Easement Area” attached hereto as
“Attachment No. 2-C” and incorporated herein by this reference.
“Effective Date” means the date upon which the Agreement is executed by both
the City and the Successor Agency.
“Environmental Law(s)” means, as amended from time to time, (i) Sections
25115, 25117, 25122.7 or 25140 of the California Health and Safety Code, Division 20, Chapter
6.5 (Hazardous Waste Control Law)), (ii) Section 25316 of the California Health and Safety
Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act),
(iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95
(Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California Administrative
Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33 U.S.C. Sec.1317),
(vii) Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Sec.6901 et seq.
(42 U.S.C. Sec.6903) or (viii) Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sec. 6901 et seq.
“Environmental Reports” means reports or assessments related to the
environmental condition of the Site, including, without limitation, the following reports provided
to Developer:
Name of publication: Soil Characterization & Groundwater Well Installation, 8801
Washington Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: December 2, 2002
Name of publication: 2
nd
Quarter 2004 – Groundwater Sampling, 8801 Washington
Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: July 26, 2004
Name of publication: 2
nd
Quarter 2007 – Groundwater Sampling, 8801 Washington
Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: July 2, 2007
Name of publication: 2
nd
Half Semi Annual 2009 – Groundwater Sampling, 8801
Washington Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: December 18, 2009
Attachment No. 1
14Name of publication: Second Half Semi Annual 2009 – Groundwater Sampling, 8801
Washington Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: December 18, 2009
Name of publication: First Half Semi Annual 2013 – Groundwater Sampling, 8801
Washington Boulevard, Culver City, California
Author of publication: Alpha Environmental (Alpha)
Date of publication: July 8, 2013
Name of publication: Third Quarter 2007 Groundwater Monitoring Report, Federal
Express Facility, 3700 South Robertson Boulevard, Culver City,
Author of publication: Bureau Veritas North America (BVNA) (available on GeoTracker)
Date of publication: September 19, 2007
“Escrow” means the escrow for the Closing to be established pursuant to Section
302.1.
“Escrow Agent” means the escrow agent of the Escrow Company for the Closing
as set forth in Section 302.1.
“Escrow Company” means First American Title Company acting out of its Los
Angeles, California office located at 777 South Figueroa Street; Suite 400, Los Angeles,
California 90017 or such other escrow company as may be requested by Developer and approved
by the City Manager.
“Escrow Costs” is defined in Section 302.2.
“Event of Default” is defined in Section 701.
“Evidence of Financing” is defined in Section 314.
“Former Agency” shall mean The Culver City Redevelopment Agency, a former
public body, corporate and politic.
“General Contractor” is defined in Section 407.
“Governmental Requirements” means all laws, ordinances, statutes, codes, rules,
orders, decrees, requirements, resolutions, policy statements and regulations (including, without
limitation, those relating to land use, subdivision, zoning, the environment, labor relations,
prevailing wage, notification of sale to employees, Hazardous Materials, occupational health and
safety, water, earthquake hazard reduction and building and fire codes; and including all
Environmental Laws and Labor Laws) of the United States, the State of California, the County of
Los Angeles, the City and of any other political subdivision, agency or instrumentality exercising
jurisdiction over the City, Developer or the Site.
“Hazardous Materials” means any substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of California, or the United
States Government, including, but not limited to, asbestos; polychlorinated biphenyls (whether or
not highly chlorinated); radon gas; radioactive materials; explosives; chemicals known to cause
Attachment No. 1
15cancer or reproductive toxicity; hazardous waste, toxic substances or related materials; petroleum
and petroleum product, including, but not limited to, gasoline and diesel fuel; those substances
defined as a “Hazardous Substance”, as defined by Section 9601 of the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq., or as
“Hazardous Waste” as defined by Section 6903 of the Resource Conservation and Recovery Act,
42 U.S.C. 6901, et seq.; an “Extremely Hazardous Waste,” a “Hazardous Waste” or a “Restricted
Hazardous Waste”, as defined by The Hazardous Waste Control Law under Section 25115,
25117 or 25122.7 of the California Health and Safety Code, or is listed or identified pursuant to
Section 25140 of the California Health and Safety Code; a “Hazardous Material”, “Hazardous
Substance,” “Hazardous Waste” or “Toxic Air Contaminant” as defined by the California
Hazardous Substance Account Act, laws pertaining to the underground storage of hazardous
substances, hazardous materials release response plans, or the California Clean Air Act under
Sections 25316, 25281, 25501, 25501.1 or 39655 of the California Health and Safety Code;
“Oil” or a “Hazardous Substance” listed or identified pursuant to 311 of the Federal Water
Pollution Control Act, 33 U.S.C. 1321; a “Hazardous Waste,” “Extremely Hazardous Waste,” or
an “Acutely Hazardous Waste” listed or defined pursuant to Chapter 11 of Title 22 of the
California Code of Regulations Sections 66261.1-66261.126; chemicals listed by the State of
California under Proposition 65 Safe Drinking Water and Toxic Enforcement Act of 1986 as a
chemical known by the State to cause cancer or reproductive toxicity pursuant to Section
25249.8 of the California Health and Safety Code; a material which due to its characteristics or
interaction with one or more other substances, chemical compounds, or mixtures, materially
damages or threatens to materially damage, health, safety, or the environment, or is required by
any law or public agency to be remediated, including remediation which such law or government
agency requires in order for the property to be put to the purpose proposed by the Agreement;
any material whose presence would require remediation pursuant to the guidelines set forth in the
California Leaking Underground Fuel Tank Field Manual, whether or not the presence of such
material resulted from a leaking underground fuel tank; pesticides regulated under the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 et seq.; asbestos, PCBs, and other
substances regulated under the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; any
radioactive material including, without limitation, any “source material,” “special nuclear
material,” “by-product material,” “low-level wastes,” “high-level radioactive waste,” “spent
nuclear fuel” or “transuranic waste” and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. 2011 et seq., the Nuclear
Waste Policy Act, 42 U.S.C. 10101 et seq., or pursuant to the California Radiation Control Law,
California Health and Safety Code, Sections 25800 et seq.; hazardous substances regulated under
the Occupational Safety and Health Act, 29 U.S.C. 651 et seq., or the California Occupational
Safety and Health Act, California Labor Code, Sections 6300 et seq.; and/or regulated under the
Clean Air Act, 42 U.S.C. 7401 et seq. or pursuant to the California Clean Air Act, Sections 3900
et seq. of the California Health and Safety Code; or any other substance, whether in the form of a
solid, liquid, gas or any other form whatsoever, which by any Governmental Requirements either
requires special handling in its use, transportation, generation, collection, storage, handling,
treatment or disposal, or is defined as “hazardous” or harmful to human health or the
environment.
“Hazardous Materials Activity” means any actual, proposed or threatened
storage, holding, existence or suspected existence, release or suspected release, emission,
discharge, generation, processing, abatement, removal, disposition, treatment, handling or
Attachment No. 1
16transportation of any Hazardous Materials from, under, into, on, above, or across the Site or
surrounding property or any other use of or operation on the Site or the surrounding property that
creates a risk of Hazardous Materials contamination of the Site in violation of Environmental
Laws.
“Improvements” means the improvements that Developer will Develop and
Cause Construction upon the Site in accordance with the Agreement, as more particularly
described in the Agreement and the Scope of Development (Attachment No. 3), including
without limitation the On and Off Site Infrastructure Improvements. The Improvements will
include a multi-level high quality transit oriented development consistent with the Scope of
Development, the Agreement and the Project Entitlements.
“In-Lieu Public Art Fee” means the fee to be paid by Developer to the City on or
before the Closing toward the installation of public art within the City in accordance with the Art
in Public Places Program, as required in Section 903.
“Ince Parking Structure” means that certain City-owned parking facility located
at 9099 Washington Boulevard, Culver City.
“Institutional Lender” means any of the following institutions having assets or
deposits in the aggregate of not less than Fifty Million Dollars ($50,000,000): a California
chartered bank; a bank created and operated under and pursuant to the laws of the United States
of America; an “incorporated admitted insurer” (as that term is used in Section 1100.1 of the
California Insurance Code); a “foreign (other state) bank” (as that term is defined in Section
1700(1) of the California Financial Code); a federal savings and loan association (Cal. Fin. Code
Section 8600); a commercial finance lender (within the meaning of Sections 2600 et seq. of the
California Financial Code); a “foreign (other nation) bank” provided it is licensed to maintain an
office in California, is licensed or otherwise authorized by another state to maintain an agency or
branch office in that state, or maintains a federal agency or federal branch in any state (Section
1716 of the California Financial Code); a bank holding company or a subsidiary of a bank
holding company which is not a bank (Section 3707 of the California Financial Code); a trust
company, savings and loan association, insurance company, investment banker; college or
university; pension or retirement fund or system, either governmental or private, or any pension
or retirement fund or system of which any of the foregoing shall be trustee, provided the same be
organized under the laws of the United States or of any state thereof; a Real Estate Investment
Trust, as defined in Section 856 of the Internal Revenue Code of 1986, as amended, provided
such trust is listed on either the American Stock Exchange or the New York Stock Exchange; a
private equity fund or sovereign wealth fund; or an investment fund, limited liability company or
partnership with investors who themselves are Institutional Investors and who hold at least a
50% capital interest in such fund, limited liability company or partnership. A wholly owned
subsidiary of an Institutional Lender may be utilized by such Institutional Lender as the direct
lender for the Project as part of the City approved Evidence of Financing.
“LACMTA Parcel” means that certain LACMTA-owned 150-foot-wide parcel
located between Venice Boulevard and Washington Boulevard in the City of Culver City, as
depicted on Attachment No. 1-A and as described in the “Legal Description – LACMTA Parcel”
Attachment No. 1
17attached hereto as “Attachment No. 2-D” and incorporated herein by this reference, on which the
EXPO Station is located and a portion of the Project is to be constructed.
“LACMTA Parcel Private Use Lease” means the lease or leases entered into
between LACMTA and the City pursuant to Paragraph 12 of the Option Agreement to provide
for residential purposes and/or commercial uses which exceed 20,000 square feet.
“LACMTA Parcel Private Use Lease Assignment” means the Lease Assignment
from City to Developer at Close of Escrow of the LACMTA Parcel Private Use Lease, pursuant
to which the City’s rights under the LACMTA Parcel Private Use Lease are assigned to
Developer, and under which Developer assumes and agrees to perform all of the obligations of
City under such lease.
“Losses and Liabilities” means and includes all claims, causes of action,
liabilities (including liability for claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or cost of any kind, whether actual,
alleged or threatened, including attorneys’ fees and costs, court costs, interest or defense costs,
and expert witness fees), losses, damages (including, without limitation, penalties, fines and
monetary sanctions), injuries, expenses, charges, penalties or costs of whatsoever character,
nature and kind, including reasonable attorney’s fees and costs incurred by the indemnified party
with respect to counsel of its choice, whether to property or to person, whether by direct or
derivative action, and whether known or unknown, suspected or unsuspected, latent or patent.
“Maintenance Standards” is defined in Section 502.
“Notice” shall mean a notice in the form prescribed by Section 801.
“Offering Notice” is defined in Section 601.1.
“Official Records” shall mean the Official Records of the Los Angeles County-
Registrar/Recorder.
“Outside Closing Date” means August 31, 2017 or such later date as may be
agreed to in writing signed by City and Developer.
“Participation Agreement” means an instrument substantially in the form
attached to the Agreement as Attachment No. 7, providing for the City Parcels Participation
Payments.
“Party” means any of Developer, Successor Agency or City, “Parties” means all
of Developer, Successor Agency and City.
“PD Zone Requirements” means the requirements of Planned Development Zone
No. 11 for the Washington National Transit Oriented Development Planned Development (PD)
Zone No. 11 adopted as an amendment to the Culver City Zoning Map and Zoning Code
pursuant to Section 17.200.015 of the Culver City Municipal Code.
Attachment No. 1
18“Permitted Transfer” means a Transfer to any Person to whom a Transfer of the
Agreement or the Site has been approved by the City in writing not to be unreasonably withheld
or delayed or to whom the express provisions of Section 206.3 of the Agreement permit a
Transfer to be made without City approval. A Permitted Transfer shall include any transfer of
the ownership interests of Developer, or of the ownership interests in any entity which directly or
indirectly controls Developer, provided that following such transfer such reorganized Developer
(a) retains or succeeds to substantially all of the assets of Developer existing immediately prior
to such transaction and (b) any of Robert J. Lowe, Robert J. Lowe Jr., and/or Michael H. Lowe
directly or indirectly control such reorganized Developer, and (c) does not otherwise result in a
Change of Control and (d) does not involve any Prohibited Person or otherwise result in a
violation of Anti-Terrorism Laws.
“Person” shall mean an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company or other entity, domestic or foreign.
“Plans” shall mean any architectural and construction plans and drawings
prepared on behalf of Developer for the Project in accordance with the Agreement, including
without limitation all such plans and drawings required by the City and the PD Zone
Requirements.
“Prohibited Person” shall mean any of the following:
(a) a Person that is listed in the Annex to, or is otherwise subject to the
provisions of, the Executive Order;
(b) a Person owned or controlled by, or acting for or on behalf of, any Person
that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order;
(c) a Person with whom Developer or Investor Limited Partner is prohibited
from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(d) a Person who or that commits, threatens, or conspires to commit or
supports “terrorism,” as defined in the Executive Order; or
(e) a Person that is named as a “specially designated national and blocked
person” on the most current list published by the Office of Foreign Asset Control of the U.S.
Treasury Department at its official web site or any replacement website or other replacement
official publication of such list.
“Project” means, collectively, the Improvements, as more particularly described
in the Agreement including, without limitation, the Scope of Development, and which Developer
shall Develop and Cause Construction on the Site in accordance with the Agreement.
“Project Area” means The Culver City Redevelopment Project, Component Area
3, described in Recital paragraph C.
Attachment No. 1
19“Project Costs” means all costs which are actually incurred by Developer for the
development of the Project, and shall include, without limitation, all of the items of cost as
determined for the design, planning, development and construction of the Improvements.
“Project Entitlements” means all discretionary land use entitlement, zoning, and
environmental approvals (including CEQA) needed for the development, construction, use, and
occupancy of the Project, including, without limitation, (a) the following approvals from the
City: (i) approval of a Comprehensive Plan pursuant to the PD Zone Requirements; (ii) a
subdivision map; (iii) vacation of the portion of Exposition Boulevard located within the portion
of the Agency Parcel located within the City (which may be accomplished through such
subdivision map); (iii) Design for Development approval including height variances, if
applicable; and (iv) certification or adoption of an environmental review document pursuant to
CEQA; (b) the following approvals from the City of Los Angeles: (i) General Plan amendment;
(ii) Site Plan Review; (iii) zone change; (iv) vacation of the portion of Exposition Boulevard
located within the portion of the Triangle Parcel located within the City of Los Angeles (which
may be accomplished through such subdivision map); (v) a subdivision map; (vi) conditional use
permits for the sale of alcoholic beverages from Improvements located within the City of Los
Angeles; (c) if applicable, the Parking Encroachment permits, as defined in Section 318 of this
Agreement; and (d) the resolution of any conflict between development standards and/or
conditions of approval issued by the two municipalities involved. For clarity, Project
Entitlements do not include building permits or certificates of occupancy for the Improvements.
“Project Entitlement Date” means the date on which all Project Entitlements
have been issued, and all applicable appeal periods with respect thereto have expired without
appeal having been taken or litigation filed, if any such appeal or litigation has been taken or
filed, such appeal or litigation shall have been concluded, dismissed or finally determined in a
way which permits Developer to develop the Project in accordance with this Agreement.
“Redevelopment Plan” means the Redevelopment Plan for the Project Area
approved and adopted by the City Council of the City on November 23, 1998 by Ordinance No.
98-014, as amended on November 23, 1998 by Ordinance No. 98-015, and as further amended
on January 12, 2004, as described in Recital B.
“Release of Construction Covenants” means the document which evidences
Developer’s satisfactory completion of the construction of the Improvements in accordance with
the Agreement, as set forth in Section 413, and to be recorded against the Site, substantially in
the form which is attached hereto as Attachment No. 6.
“Relocation Costs” shall have the meaning as set forth in Section 301.4 of the
Agreement.
“Relocation Laws” shall mean all applicable state and local laws providing
relocation benefits and assistance, and providing for compensation for the acquisition of property
interests, including, without limitation, the California Relocation Assistance Law, Government
Code section 7260 et seq. and the implementing regulations thereto in the California Code of
Regulations, Title 24, section 6000 et seq. and the local implementing regulations thereto, and
all applicable federal relocation laws, including, without limitation, the Uniform Relocation
Attachment No. 1
20Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. 4201-4655, and 49
CFR Part 24, the acquisitions and eminent domain laws in Government Code section 7267 et
seq. and Code of Civil Procedure section 1240.000 et seq. and any other applicable federal, state
or local enactment, regulation or practice providing for relocation assistance and benefits, and
compensation for the acquisition of property interests.
“Representatives” means the agents, employees, members, independent
contractors, affiliates, principals, shareholders, officers, council members, board members,
committee members, and planning and other commissioners, partners, attorneys, accountants,
representatives, and staff of the referenced entity and the predecessors, heirs, successors and
assigns of all such persons.
“Right of Entry Agreement” means any agreement to be executed by the Parties
allowing Developer to access the Site for predevelopment work, substantially in the form entered
into by the City and Successor Agency with Developer prior to the execution of this Agreement.
“Schedule of Performance” means that certain Schedule of Performance,
attached to the Agreement as Attachment No. 4, setting forth the dates and/or time periods by
which certain obligations set forth in the Agreement must be accomplished by both Parties. The
Schedule of Performance is subject to revision from time to time as mutually agreed upon in
writing between Developer and the City Manager, and the City Manager is authorized to make
such revisions as the City Manager deems reasonably necessary.
“Scope of Development” means that certain Scope of Development, attached to
the Agreement as Attachment No. 3, describes the details of the Project. The Scope of
Development shall be deemed revised, effective upon the Project Entitlement Date, to
incorporate the Comprehensive Plan approved by the City pursuant to the PD Requirements.
“Site” consists of the Agency Parcels, the City Parcels and the Easement Area, as
illustrated on Attachment No. 1-A and as described respectively in Attachments 2-A, 2-B and 2-
C, on which Developer will Develop and Cause Construction of the Improvements pursuant to
this Agreement.
“Successor Agency Documents” means, collectively, the Agreement, Right of
Entry, Assignment of Plans, Reports and Data, Assignment of Construction Contract,
Assignment of Agreements, Parking License Agreement, Construction License Agreement,
Reciprocal Easement Agreement, Perpetual Easement Agreement, Relocation Agreement, the
Successor Agency Grant Deed, Transfer of Easement Area Documents and any and all other
agreements, amendments or modifications entered into by and between the Successor Agency
and Developer to effect the purposes of the foregoing.
“Successor Agency Grant Deed” means the grant deed by which Successor
Agency will convey the Agency Parcels to Developer, substantially in the form attached to the
Agreement as Attachment No. 5-A.
“Survey” is defined in Section 306.
“Title Company” is defined in Section 306.
Attachment No. 1
21“Title Report” is defined in Section 306.
“Transfer” means and includes any sale, transfer, assignment, lease, sublease,
license, franchise, conveyance, gift, hypothecation, mortgage, pledge or encumbrance, or
refinancing, or the like (including those described in Section 414.1 but excluding any Permitted
Transfer) of the Site or Developer or any portion thereof or any interest therein or of the
Agreement, to any Person. Subsequent to the Completion of construction of the Project,
“Transfer” shall expressly exclude any lease or sublease for occupancy of a residential or retail
unit of the Improvements.
“Transfer of Easement Area Documents” means a document substantially in the
form of Attachment No. 5-C under which City and Successor Agency assign to Developer at
Close of Escrow all of their rights and obligations in and to the Parking License Agreement, the
Construction License Agreement, the Perpetual Easement Agreement, the Reciprocal Easement
Agreement and the Private Use Lease, and Developer assumes and agrees to perform such
obligations.
“USA Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-
56, 115 Stat. 272 (2001), as amended from time to time.
“Washington National Site Map” means the map of the Site identifying the
Agency Parcels, the City Parcels, the Easement Area, and the LACMTA Parcel, attached as
Attachment No. 1-A.
102. Singular and Plural Terms
Any defined term used in the plural herein shall refer to all members of the
relevant class and any defined term used in the singular shall refer to any number of the members
of the relevant class.
103. Accounting Principles
Any accounting term used and not specifically defined herein shall be construed
in conformity with, and all financial data required to be submitted herein shall be prepared in
conformity with, generally accepted accounting principles applied on a consistent basis or in
accordance with such other principles or methods as are reasonably acceptable to the City
Manager or designee.
104. References and Other Terms
Any reference to any document shall include such document both as originally
executed and as it may from time to time be modified. In the event of any difference between
the definition of a capitalized term in the Original Agreement or herein, the definition in this
Implementation Agreement will control. References herein to Sections and Attachments shall be
construed as references to the Agreement unless a different document is named. References to
subparagraphs shall be construed as references to the same Section in which the reference
appears. The term “document” is used in its broadest sense and encompasses agreements,
Attachment No. 1
22certificates, opinions, consents, instruments and other written material of every kind. The terms
“including” and “include” mean “including (include), without limitation.”
105. Attachments Incorporated
All attachments to the Agreement, or agreements entered into by the Parties
substantially in the form of such attachments, as now existing and as the same may from time to
time be modified, are incorporated herein by this reference.
200. SUBJECT OF IMPLEMENTATION AGREEMENT
201. Purpose of the Implementation Agreement
The purpose of this Implementation Agreement is to effectuate the Successor
Agency’s approved Long Range Property Management Plan, and the Redevelopment Plan, by
providing for the sale of the Agency Parcels and the City Parcels and the Transfer of Easement
Area Documents and the development of the Site. Except as modified by or expressly provided
otherwise in this Implementation Agreement and the Attachments and Exhibits to this
Implementation Agreement, the Original Agreement, and each document executed or entered
into pursuant to the Original Agreement, remains in full force and effect, enforceable in
accordance with its terms, without diminution or waiver of any kind of any right or remedy of
the parties hereunder. All references in the Original Agreement and this Implementation
Agreement to the “Agreement” shall be modified to mean the Original Agreement as amended
by this Implementation Agreement; provided, however, any inconsistent or contrary terms in the
Original Agreement are hereby replaced in their entirety by this Implementation Agreement.
The Agreement is entered into for the purpose of development of the Project on
the Site pursuant to the Agreement. The fulfillment generally of the Agreement is in the vital
and best interest of the City, the Successor Agency and the health, safety, and welfare of its
residents, and in accord with the public purposes and provisions of the applicable federal, state
and local laws and requirements under which the Project has been undertaken and is being
assisted.
202. The Redevelopment Plan
The Agreement is subject to the provisions of the Redevelopment Plan (as the
same may have been amended or superseded by the Dissolution Law). The Redevelopment Plan
is incorporated herein by this reference and made a part hereof as though fully set forth herein.
203. The Project Area
The Project Area is located in the City and is legally described in the
Redevelopment Plan.
204. The Site
The Site consists of the City Parcels, the Agency Parcels and the Easement Area
as described in Recital paragraph B.
Attachment No. 1
23 204.1 City Parcels and Agency Parcels
The Agency Parcels are illustrated on the Site Map attached as Attachment
No. 1-A and as legally described in the Legal Description as Attachment No. 2-A. A temporary
parking lot constructed and used by the Authority pursuant to the Construction License
Agreement and thereafter by LACMTA pursuant to the Parking License Agreement is currently
located on the Agency Parcels. The City Parcels are illustrated on the Site Map attached as
Attachment No. 1-A and as legally described in the Legal Description as Attachment No. 2-B.
The Agency Parcels and the City Parcels shall be conveyed to Developer “as is.” The cost of
any demolition of the improvements on the temporary parking lot shall be the sole responsibility
of Developer.
204.2 Easement Area
The Easement Area is comprised of an area over the northerly 91 feet of
the LACMTA Parcel, including surface, air and subterranean portions thereof, as illustrated on
Attachment No. 1-A and legally described in Legal Description as Attachment No. 2-C.
Subject to Section 715 hereof, provided the Option Conditions set forth in
Section 5 of the Option Agreement for Perpetual Easement Agreement have been satisfied or
waived by LACMTA, within the time set forth in the Schedule of Performance, the City, on
behalf of itself and the Successor Agency agrees to exercise the Option (as defined therein) to
acquire the easement on the LACMTA Parcel by delivering written notice to LACMTA (the
“Option Notice”) and by entering into and assigning to Developer at the Closing the Perpetual
Easement Agreement and the Reciprocal Easement Agreement with LACMTA; and further
provided, however, that no such determination by LACMTA shall satisfy or waive the City’s
independent right to determine whether the City’s Conditions Precedent to Closing herein or
Successor Agency’s Conditions Precedent to Closing, respectively, have been satisfied or waived
by the City or the Successor Agency, respectively, under the terms and conditions set forth
herein. Notwithstanding the foregoing, the City and the Successor Agency hereby agree to
satisfy the Conditions Precedent set forth in Sections 5(a), (e), (f), and (g) of 5 of the Option
Agreement for Perpetual Easement Agreement under the terms and conditions set forth therein
within the time set forth in the Schedule of Performance.
Within the time set forth in the Schedule of Performance Developer
hereby agrees to satisfy the Conditions Precedent set forth in Sections 5(b), (c), (d), and (e) of the
Option Agreement for Perpetual Easement Agreement and be bound by the terms thereof.
Failure of Developer to satisfy said Conditions thereunder shall not constitute a default by the
City hereunder.
204.3 Transfers
Subject to the restrictions on Transfer set forth in Section 206, Developer
agrees that upon any Transfer of the Site or any portion thereof, the transferred portion of the
Site shall be subject to all of the terms, provisions, covenants and conditions of the Agreement,
all Project Entitlements and all exceptions, reservations, liens, encumbrances, qualifications,
Attachment No. 1
24covenants, conditions, restrictions, easements, rights of way, and any and all matters or
conditions reflected on or arising out of any Project Entitlements.
205. Parties to the Agreement
205.1 The City
The City is a municipal corporation and charter city of the State of
California.
The principal office of the City is located at 9770 Culver Boulevard,
Culver City, California 90232-0507.
205.2 The Successor Agency
The Successor Agency is a public entity separate from the City of Culver
City that operates as the successor agency to the Former Agency pursuant to the Dissolution Act.
The principal office of the Successor Agency is located at 9770 Culver
Boulevard, Culver City, California 90232-0507.
205.3 Developer
Developer is LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation, whose address is 11777 San Vicente Boulevard, Suite 900, Los Angeles,
California 90049, Attention: Thomas W. Wulf, Senior Vice President, and any permitted
assignees or nominee. Developer shall be in good standing under the laws of the state in which
such entity is registered during the effectiveness of the Agreement.
All of the terms, covenants and conditions of the Agreement shall be
binding on, and shall inure to the benefit of, Developer and any Permitted Transferee. Wherever
the term “Developer” is used herein, such term shall mean and include any such Permitted
Transferee.
206. Prohibition Against Transfer and Change in Management and Control of
Developer
206.1 Prohibition
The qualifications and identities of Developer and its members are of
particular concern to the City. It is because of those unique qualifications and identities that the
City has entered into the Agreement with Developer and is imposing restrictions upon any
Change of Control of Developer and any Transfer which is not a Permitted Transfer until the
City issues the Release of Construction Covenants. Developer represents that it is purchasing the
Site to Develop and Cause Construction of the Project on the Site, and that it is not purchasing
the Site for purposes of resale of the Site to a third party prior to the Completion of construction
of the Project. Accordingly, Developer agrees not to Transfer the Site prior to the Completion of
construction of the Project. No voluntary or involuntary successor in interest to Developer shall
Attachment No. 1
25acquire any rights or powers in the Site or under the Agreement except as expressly set forth
herein.
Without the prior written approval of City, which approval may be granted
or withheld in the discretion of the City, but which approval shall not be unreasonably withheld
or delayed, Developer shall not (i) Transfer all or any part of its interest in or rights under the
Agreement or the Site other than a Permitted Transfer, or (ii) effect any Change of Control. Any
Permitted Transfer shall require notice to, but not the consent of, the City.
Notwithstanding the foregoing, if control or ownership of Developer must
be changed in order to obtain financing to construct the Project, the City shall grant or withhold
its approval in its reasonable discretion provided that Robert Lowe, Sr., Robert Lowe, Michael
Lowe, Richard Newman and/or Thomas Wulf or other employees of Developer reasonably
approved by the City, remain the individuals exercising management control over the Project and
the implementation of the Agreement (subject to oversight by Developer’s or Developer’s parent
entity’s Board of Directors) and remain Developer’s primary contact with City.
Any Transfer or Change of Control in violation hereof will constitute a
breach and entitle the City to use any remedy available to it at law or equity, including, but not
limited to, the right to terminate the Agreement.
The restrictions on a Change of Control set forth in this Section 206 shall
terminate five (5) years subsequent to the issuance of the Release of Construction Covenants.
206.2 Change of Ownership; Restriction on Investments
If control or ownership of Developer must be changed in order for
Developer to obtain debt or equity financing, then Developer shall seek the prior written consent
of the City, not to be unreasonably withheld or delayed, for such Change of Control in
accordance with this Section.
Developer agrees that during the term hereof, it shall not use the Site as
collateral for any loan or other financial transaction other than a loan or financial transaction for
which the proceeds therefrom are used for the construction of the Improvements or for operation
or long term financing of the Project.
206.3 Permitted Transfers
In addition to the transfers described in the definition of “Permitted
Transfer” and a Transfer to any person or party to whom a Transfer of the Agreement has been
approved by the City in writing, the following shall constitute “Permitted Transfers” hereunder:
(a) The conveyance or dedication of any portion of the Site to the
City, Agency or other appropriate governmental agency, or the granting of easements or permits
to facilitate construction of the Improvements; and
Attachment No. 1
26(b) Subject to the requirements of Section 501, the rental or lease of
retail, rental or office space in the Improvements upon Completion of construction of the
Improvements.
In the event of a Transfer by Developer under subparagraphs (a) and (b),
(inclusive), above not requiring the City’s prior approval, Developer nevertheless agrees that at
least thirty (30) days prior to such Transfer it shall give Notice to City of such Transfer.
206.4 Request for Transfer or Change of Control; Approval
Except as specifically set forth herein, upon Developer’s delivery of
written Notice to City requesting such approval, the City reserves discretion to approve or
disapprove a request for Transfer or Change of Control made pursuant to this Section, which
approval shall not be unreasonably withheld or delayed. Any such Notice shall be accompanied
by sufficient evidence regarding the proposed assignee’s or purchaser’s development and/or
operational qualifications and experience, and its financial commitments and resources, in
sufficient detail to enable the City to evaluate the proposed assignee resulting from the Change
of Control or Transfer as reasonably determined by the City. An assignment and assumption
agreement substantially in the form of the “Assignment and Assumption Agreement” attached
hereto and labeled “Attachment No. 10” shall also be submitted to City for all proposed
Transfers. No Transfer shall be effective nor shall Developer be relieved of liability hereunder
unless and until the transferee assumes all of the obligations of Developer with regard to the
Agreement and the Site, and delivers a signed assignment and assumption agreement in the
required form.
Within thirty (30) days after the receipt of Developer’s written Notice
requesting City approval of Transfer or Change of Control pursuant to this Section, the City shall
either approve or disapprove such proposed Transfer or Change of Control or shall respond in
writing by stating what further information, if any, the City reasonably requires in order to
determine the request complete and determine whether or not to grant the requested approval.
Upon receipt of such a response, Developer shall promptly furnish to the City such further
information as may be reasonably requested. Developer agrees to promptly pay all of the City’s
out-of-pocket costs, including reasonable attorneys’ fees, incurred in connection with review and
processing of any request for Transfer or Change of Control and/or consummation of such
Transfer or Change of Control and preparation of any documentation and/or agreements in
connection therewith.
207. Third Party Beneficiaries
The Agreement is made and entered into for the sole protection and benefit of the
City, its successors and assigns, the Successor Agency, its successors and assigns, and
Developer, its permitted successors and assigns, and no other person or persons shall have any
right of action hereon or hereunder.
Attachment No. 1
27208. Representations and Warranties
208.1 City’s Representations
City represents and warrants to Developer as follows:
(a) Authority. The City is a municipal corporation and charter city of
the State of California. The execution, performance and delivery of the Agreement by the City
have been fully authorized by all requisite actions on the part of the City.
(b) No Conflict. To the best of the City’s knowledge, the City’s
execution, delivery and performance of its obligations under the Agreement will not constitute a
default or a breach under any contract, agreement or order to which the City is a party or by
which it is bound.
(c) No City Bankruptcy. To the best of the City’s knowledge, the City
is not the subject of a bankruptcy proceeding.
(d) Title. At the Closing, the City shall deliver title or cause to be
delivered to the City Parcels and the Easement Area free of any right of any third party (except
Developer) to possession of all or any part of the Site.
(e) Litigation. To the best of the City’s knowledge, there are no
pending actions, suits, material claims, legal proceedings, or any other proceedings affecting title
of the Site or any portion thereof, at law or in equity before any court or governmental agency,
domestic or foreign.
(f) Governmental Compliance. The City has not received any notice
from any governmental agency or authority alleging that the Site is currently in violation of any
law, ordinance, rule, regulation or requirement applicable to its use and operation. If any such
notice or notices are received by the City following the Effective Date of the Agreement, the
City shall, within ten (10) Days of receipt of such notice, notify Developer.
Until the Closing, the City shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section not to be true,
immediately give written notice of such fact or condition to Developer.
208.2 Successor Agency’s Representations
Successor Agency represents and warrants to Developer as follows:
(a) Authority. Successor Agency is the public entity that is the
successor agency to the Former Agency under the Dissolution Act. The execution, performance
and delivery of this Agreement by the Successor Agency has been fully authorized by all
requisite actions on the part of the Successor Agency, including, without limitation, approval by
Successor Agency’s Oversight Board and the State Department of Finance.
Attachment No. 1
28(b) No Conflict. To the best of the Successor Agency’s knowledge,
the Successor Agency’s execution, delivery and performance of its obligations under this
Agreement will not constitute a default or a breach under any contract, agreement or order to
which the Successor Agency is a party or by which it is bound.
(c) No Bankruptcy. To the best of the Successor Agency’s
knowledge, the Successor Agency is not the subject of a bankruptcy proceeding.
(d) Title. At the Closing, the Successor Agency shall deliver title or
cause to be delivered to the Agency Parcels and the Easement Area free of any right of any third
party (except Developer) to possession of all or any part of the Agency Parcels.
(e) Litigation. There are no pending actions, suits, material claims,
legal proceedings, or any other proceedings affecting title of the Agency Parcels or any portion
thereof, at law or in equity before any court or governmental agency, domestic or foreign.
(f) Governmental Compliance. The Successor Agency has not
received any notice from any governmental agency or authority alleging that the Agency Parcels
are currently in violation of any law, ordinance, rule, regulation or requirement applicable to its
use and operation. If any such notice or notices are received by the Successor Agency following
the Effective Date of this Agreement, the Successor Agency shall, within ten (10) Days of
receipt of such notice, notify Developer.
Until the Closing, the Successor Agency shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section not to be
true, immediately give written notice of such fact or condition to Developer.
208.3 Developer’s Representations
Developer represents and warrants to the City and the Successor Agency
as follows:
(a) Organization. Developer is a duly organized, validly existing
corporation in good standing under the laws of the state in which each such entity is registered
and each has the power and authority to own and lease property and carry on its business as now
being conducted. The copies of the documents evidencing the organization of Developer and
setting forth the membership interests, control and management of Developer delivered to the
City are true and correct (and true copies of the originals, if applicable) as of the Effective Date.
(b) Authority. Developer has the legal power, right and authority to
execute, deliver and enter into the Agreement and any and all other agreements and documents
required to be executed and delivered by Developer in order to carry out, give effect to, and
consummate the transactions contemplated by the Agreement, and to perform and observe the
terms and provisions of all of the above. The Parties who have executed the Agreement and all
other documents or instruments executed and delivered, or to be executed and delivered,
pursuant to the Agreement are authorized to execute and deliver the same on behalf of Developer
and all actions required under Developer’s organizational documents and applicable governing
law for the authorization, execution, delivery and performance of the Agreement and all other
Attachment No. 1
29documents or instruments executed and delivered, or to be executed and delivered pursuant
hereto, have been duly taken.
(c) Valid and Binding Agreements. The Agreement and all other
documents or instruments which have been executed and delivered pursuant to or in connection
with the Agreement constitute or, if not yet executed or delivered, will constitute when so
executed and delivered, legal, valid and binding obligations of Developer enforceable against it
in accordance with their respective terms.
(d) Contingent Obligations. Developer does not have any contingent
obligations or any contractual agreements which could materially adversely affect the ability of
Developer to carry out its obligations hereunder.
(e) Litigation. To the best of Developer’s knowledge, no action, suit
or proceedings are pending or threatened before any governmental department, commission,
board, bureau, agency or instrumentality to which Developer is or may be made a party or to
which any of its property is or may become subject, which has not been fully disclosed to the
City which could materially adversely affect the ability of Developer to carry out its obligations
hereunder.
(f) No Conflict. Developer’s execution and delivery of the Agreement
and any other documents or instruments executed and delivered, or to be executed or delivered,
pursuant to the Agreement, and the performance of any provision, condition, covenant or other
term hereof or thereof, do not or will not conflict with or result in a breach of any statute, rule or
regulation, or any judgment, decree or order of any court, board, commission or agency
whatsoever binding on Developer, or any provision of the organizational documents of
Developer, or will conflict with or constitute a breach of or a default under any agreement to
which Developer is a party, or will result in the creation or imposition of any lien upon any
assets or property of Developer, other than liens established pursuant hereto.
(g) No Developer Bankruptcy. To the best of Developer’s knowledge,
no attachments, execution proceedings, assignments for the benefit of creditors, insolvency,
bankruptcy, reorganization, receivership or other proceedings are pending or threatened against
Developer, nor are any of such proceedings contemplated by Developer. In the event that
Developer’s interest is assigned to an Affiliate in accordance with Section 206, such
representation and warranty shall remain true with respect to Developer (i.e., the Assignee of the
original Developer), its managing member or general partners, as applicable, and Lowe
Enterprises Real Estate Group.
Until the Closing, Developer shall, upon learning of any fact or condition
which would cause any of the warranties and representations in this Section not to be true,
immediately give written notice of such fact or condition to the City.
209. Special Limited Obligation
Any obligation of the City hereunder shall be a special limited obligation, which
is not and shall not be a pledge of or an obligation payable through the City’s general fund.
Accordingly, nothing in this Agreement shall require or be deemed to require the City to expend
Attachment No. 1
30or commit to expend monies from its general fund to satisfy any of the obligations set forth in the
Agreement. In the event the City does not have the funds or the property contemplated herein to
fulfill any obligation under this Agreement, it shall not be considered in default under this
Agreement. The City shall have no obligation whatsoever to utilize any other source of funds to
make any payments to Developer required hereunder. Notwithstanding anything in this Section
209 to the contrary, Developer shall have the right to seek specific performance or mandamus to
enforce any of the City’s obligations under the Agreement.
300. DISPOSITION OF THE CITY PARCELS AND THE AGENCY PARCELS
301. Sale and Purchase
301.1 Sale and Purchase of the City Parcels and the Agency Parcels;
Purchase Prices
Upon satisfaction of the City’s Conditions Precedent to Closing and
within the time frame set forth in the Schedule of Performance, the City agrees to convey to
Developer with the City Grant Deed, subject to the rights reserved therein, and Developer agrees
to purchase from the City all of the City’s right, title and interest in and to the City Parcels, for a
purchase price payable at Close of Escrow from Developer to the City of FIFTEEN MILLION
AND SIX HUNDRED THOUSAND DOLLARS ($15,600,000) (“City Parcels Purchase
Price”), less the City Parcels Purchase Price Credits. Upon satisfaction of the Successor
Agency’s Conditions Precedent to Closing and within the time frame set forth in the Schedule of
Performance, the Successor Agency agrees to convey to Developer with the Successor Agency
Grant Deed, subject to the rights reserved therein, and Developer agrees to purchase from the
Successor Agency all of the Successor Agency’s right, title and interest in and to the Agency
Parcels, for a purchase price payable at Close of Escrow from Developer to the Successor
Agency of EIGHT MILLION AND TWO HUNDRED THOUSAND DOLLARS ($8,200,000)
(“Agency Parcels Purchase Price”). The City and the Successor Agency have respectively
determined that the City Parcels Purchase Price and the Agency Parcels Purchase Price are each
equal to the appraised fair market value of such respective parcels. In addition to paying the City
the City Parcels Purchase Price less the City Parcels Purchase Price Credits, as additional
consideration for the conveyance to Developer of the City Parcels and the City’s efforts and
expense incurred in negotiation of the Option Agreement and additional related agreements,
Developer agrees to (a) Develop and Cause Construction of the Project, including the
Improvements, in accordance with the terms of the Agreement, (b) make payments to the City
under the Participation Agreement, (c) make Developer’s Relocation Obligations Payments, and
(d) be bound by the obligations, covenants and restrictions set forth in the Agreement.
Developer’s acquisition of the Site and development of the Project
pursuant to the Agreement, and the fulfillment generally of the Agreement, are in the best
interests of the City, the Successor Agency and the welfare of its residents, and in accordance
with the public purposes and provisions of applicable federal, state, and local laws and
requirements.
Attachment No. 1
31301.2 City Parcels Purchase Price Credits
Subject to the limitations set forth below and the general limitation that the
City Parcels Purchase Price Credits shall not exceed the amount of the City Parcels Purchase
Price, Developer shall receive a credit to be applied towards its obligation to pay the City Parcels
Purchase Price at the Close of Escrow in the following amounts:
(a) Utility Relocation Costs. A credit (the “Utility Relocation Cost
Credit”) equal to the costs and expenses to be incurred by Developer, as set forth in the
Construction Contract approved by the City at the Close of Escrow by the City Manager or
designee prior to the Close of Escrow, for Developer’s utility relocation obligations set forth in
Section 401.1.
(b) Infrastructure Costs. A credit (the “Infrastructure Cost Credit”)
equal to the costs and expenses to be incurred by Developer, as set forth in the Construction
Contract approved by the City Manager of the City or designee prior to the Close of Escrow, for
Developer’s infrastructure obligations set forth in Section 401.1.
(c) Relocation Costs. A credit (the “Relocation Cost Credit”) equal to
the Relocation Costs to be incurred by Developer paid prior to Closing or payable after Closing
pursuant to Section 301.4, as reasonably determined by the City Manager or designee prior to the
Close of Escrow, provided, however, in no event shall the Relocation Cost Credit exceed the cost
(as set forth in the Construction Contract approved by the City Manager or designee prior to the
Close of Escrow) of constructing the Isolation Wall as required by the Perpetual Easement
Agreement.
301.3 City and Agency Parcels Purchase Price Payments; Scheduled Close
of Escrow
Within one (1) business day prior to the scheduled Close of Escrow,
Developer agrees to deposit into Escrow in cash the total amount equal to (i) the Agency Parcels
Purchase Price, plus (ii) the City Parcels Purchase Price minus the City Parcels Purchase Price
Credits determined pursuant to Section 301.2, plus Developer’s share of Escrow fees and costs
and the In Lieu Public Art Fee as applicable. Escrow shall be scheduled to close on such date as
the Successor Agency’s Conditions to Closing, the City’s Conditions to Closing and Developer’s
Conditions to Closing are met. Escrow shall close no later than the Outside Closing Date.
At the Closing, Escrow shall disburse to the Successor Agency the Agency
Parcels Purchase Price in the amount of Eight Million Two Hundred Thousand Dollars
($8,200,000), less the Successor Agency’s share of closing costs as provided herein, and shall
disburse to the City an amount equal to the City Parcels Purchase Price of Fifteen Million Six
Hundred Thousand Dollars ($15,600,000) less the City Parcels Purchase Price Credits and the
City’s share of closing costs as provided herein.
Attachment No. 1
32301.4 Relocation; Developer’s Relocation Obligations Payments
(a) City on behalf of the City, and, subject to the City’s approval, not
to be unreasonably withheld or delayed, Developer shall each use its good faith efforts to arrange
for the vacation of the Site by all existing tenants and occupants prior to the Close of Escrow, or,
if applicable, the entry into binding relocation or termination agreements providing for the
vacation of any premises located with the Site prior to the Close of Escrow, all in accordance
with the Relocation Laws. Relocation obligations, if any, which arise from the Agreement shall
be administered by the City (or its designee, a qualified relocation consultant chosen by the City
in consultation with Developer) in conformity with the Relocation Laws and in cooperation with
Developer, with such administration paid by Developer. The City may decide either to limit its
attempts to acquire any interests in property that may be required for such relocation to voluntary
negotiation with property owners or to consider, in the City’s sole and absolute discretion,
exercising the power of eminent domain. The City expressly reserves the right to comply with
all applicable laws in connection with any exercise or potential exercise of the power of eminent
domain.
(b) The relocation of any occupants or businesses, if any, required for
demolition, development and operation of the Site in accordance with the Agreement, including
provision of relocation assistance and benefits and compensation for the acquisition of interests
in property pursuant to Relocation Laws, and including all Relocation Costs as defined below,
shall be the sole financial responsibility of Developer, other than, if Closing occurs, the
Relocation Payment Credit.
(c) "Relocation Costs" means the costs of acquisition of any interest
in real property necessary to relocate any occupants on the Site incurred by Developer, City or
the Successor Agency by negotiation or eminent domain including, but not limited to, the
purchase price, just compensation for the taking or threatened taking of property interests
(leasehold interests, buildings, fixtures, equipment, loss of goodwill and improvements); all and
any costs, expenses, benefits or assistance provided or required by Relocation Laws; costs for
payment of goodwill as provided under California law in eminent domain actions; fees and
actual expenses of acquisition agents; escrow fees; costs of drawing the deeds for each property
acquired; recording fees; notary fees and premiums for title insurance policies; any state, county
or city documentary stamps or transfer tax; court costs; witness fees; expert witness fees;
prorated taxes; appraisal fees; reasonable attorney fees; deposits to obtain an order of
prejudgment possession, if incurred; amounts to satisfy judgments of condemnation. All of the
Relocation Costs shall be the sole financial responsibility of Developer and shall be administered
and reviewed by the City (or its designee), in consultation and cooperation with Developer.
(d) Thirty (30) days after the date of this Agreement Developer shall,
at the sole cost and expense of Developer, deliver to the City an irrevocable letter of credit, first
approved in writing by the City as to form, content and issuer, in the amount of Nine Hundred
Thousand Dollars ($900,000) (the “Letter of Credit”), to be used subject to the provisions of this
Section 301.4 to assure the payment by Developer of its obligations under this Section 301.4 to
pay Relocation Costs and indemnify the City and the Successor Agency with respect to same.
Attachment No. 1
33 (e) In the event that City reasonably determines that remaining
Relocation Costs are likely to exceed the amount of the original Letter of Credit, then within
thirty (30) days after the City provides written notice thereof to Developer setting forth the
amount of the anticipated shortfall and the bases for the City determination, Developer shall, at
the sole cost and expense of Developer, deliver to the City additional letter(s) of credit and/or
amendment(s) to the original Letter of Credit, first approved in writing by the City as to form,
content and issuer (each referred to herein as an “Additional Letter of Credit”), in the amount of
such shortfall requested by the City.
(f) Developer shall (i) pay any Relocation Costs incurred by the City
and (ii) reimburse the City for any Relocation Costs incurred by the City, within thirty (30) days
following the City’s delivery to Developer of written notice thereof (which notice shall include
unpaid invoices or demands and other reasonable documentation for such Relocation Costs paid
or incurred by the City). In the event that Developer does not pay or reimburse the City for such
Relocation Costs within such thirty (30) day period, the City shall have the right to draw on the
Letter of Credit and any Additional Letter of Credit from time to time to pay such Relocation
Costs. The only condition for any draw on the Letter of Credit shall be a certification by the City
Manager or designee that the draw is permitted under the terms of this Agreement. Developer
and City shall consult so as to attempt to schedule relocating and business closures so as to
lawfully minimize Relocation Costs without delaying completion of the Project.
(g) The term of the original Letter of Credit shall be not less than two
(2) years, and such term shall be subject to extension if Relocation Costs will or might be
incurred following the scheduled expiration of the Letter of Credit. If the term of the Letter of
Credit is not so extended within thirty (30) days following a request by the City for such an
extension, the City shall have the right to draw on the Letter of Credit in an amount deemed
sufficient by the City in its discretion to cover any Relocation Costs that may be incurred after
the expiration of the Letter of Credit.
(h) Developer hereby covenants and agrees to indemnify, save,
protect, hold harmless, pay for, and defend the City and the Successor Agency, and their
respective representatives, volunteers, officers, employees, agents, and consultants (collectively,
“Indemnities”) from and against any and all Relocation Costs, liabilities, suits, actions, claims,
demands, penalties, damages (including, without limitation, penalties, fines, and monetary
sanctions), losses, costs, or expenses, including, without limitation, reasonable consultants’ and
reasonable attorneys’ fees (collectively, “Liabilities”) which may now or in the future be
incurred or suffered by Indemnities by reason of, or resulting from, in full or in part, or in any
respect whatsoever from the displacement of businesses or other occupants pursuant to the
Agreement. All of any costs or expenses of Developer that may be incurred arising out of this
indemnification provision or arising out of the release set forth in the immediately following
Section 301.4(i), except for the negligence or wilful misconduct of Developer, shall be
considered Relocation Costs for purposes of calculating the amount of the City Parcels Purchase
Price Credit to the extent provided in Section 301.2(c) of this Agreement. This indemnification
shall survive the termination of the Agreement (but only with respect to such Relocation Costs
and Liabilities incurred or arising as a result of this Agreement prior to such termination) and
shall continue after Completion.
Attachment No. 1
34(i) Developer, on behalf of itself and any and all successors and
assigns, hereby fully and finally releases the City and the Successor Agency, and their respective
past and present elective and appointive boards, commissions, officials employees,
representatives and agents from any and all manner of actions, causes of actions, suits,
obligations, liabilities, judgments, executions, debts, claims, and demands of every kind and
nature whatsoever, known and unknown, which Developer or any of its successors or assigns
may now have or hereafter obtain against the City or the Successor Agency, or their respective
past and present elective and appointive boards, commissions, officials employees,
representatives and agents by reason of, arising out of, relating to, or resulting from, in full or in
part, the Relocation Laws. The Parties agree that, with respect to the release of claims as set
forth above, all rights under Section 1542 of the California Civil Code and any similar law of any
state or territory of the United States are expressly waived. Section 1542 reads as follows:
Civil Code Section 1542. Certain claims not affected by general
releases. A general release does not extend to claims which the
creditor does not know or suspect to exist in his or her favor at the
time of executing the release which if known by him or her must
have materially affected his or her settlement with the debtor.
________________
Developer’s Initials
301.5 City Parcels Participation Payments
As additional consideration for the performance by the City of its
obligations herein, and in recognition of the City’s past efforts in providing for the development
of the community that has made the Project possible, Developer shall pay to the City the City
Parcels Participation Payments in amounts equal to twenty percent (20%) profit sharing above
twenty five percent (25%) of net return to the Project equity investment upon capital events
following completion and stabilization, as more particularly set forth in the Participation
Agreement attached to the Agreement as Attachment No. 7.
302. Escrow
302.1 Escrow Instructions
The City, the Successor Agency and Developer shall open an escrow for
the sale and purchase of the City Parcels and the Agency Parcels (“Escrow”) with an escrow
agent (“Escrow Agent”) acceptable to the City, Successor Agency and Developer within the
times established therefor in the Schedule of Performance. The Agreement constitutes the joint
escrow instructions of the City, the Successor Agency and Developer, and a duplicate original of
the Agreement shall be delivered to the Escrow Agent upon the opening of the Escrow. The
City, Successor Agency and Developer shall provide such additional escrow instructions as shall
be necessary and consistent with the Agreement. The Escrow Agent is hereby empowered to act
under the Agreement and upon indicating its acceptance of the provisions of this Section 302.1 in
writing, delivered to the City and the Successor Agency and to Developer within five (5) Days
after the opening of the escrow, shall carry out its duties as Escrow Agent hereunder.
Attachment No. 1
35 302.2 Costs of Escrow
The fees, charges and costs associated with the Closing (“Escrow Costs”)
shall be paid as follows:
Developer shall pay:
(a) One half of the escrow fees;
(b) The premium for title insurance policies, as required by Section
303.2(e) of the Agreement (Developer shall also pay the cost of any extended coverage requested
on its lender’s title insurance policy and for all endorsements other than endorsements which the
City or the Successor Agency has agreed to provide to cure a title objection);
(c) Notary fees;
(d) Ad valorem taxes, if any, upon the City Parcels and the Agency
Parcels after Closing, or ad valorem taxes, if any, upon the Agreement, or any rights thereunder,
after the Closing of title.
The City shall pay:
(i) Costs necessary to place the title to the City Parcels in the
condition for conveyance required by the provisions of the Agreement;
(ii) Any and all state, county, or city documentary stamps or transfer
tax pertaining to the City’s conveyance of the City Parcels;
(iii) One quarter of the escrow fees.
The Successor Agency shall pay:
(i) Costs necessary to place the title to the Agency Parcels in the
condition for conveyance required by the provisions of the Agreement;
(ii) Any and all state, county, or city documentary stamps or transfer
tax pertaining to the Successor Agency’s conveyance of the Agency Parcels;
(iii) One quarter of the escrow fees.
302.3 General Provisions Applicable to Escrow Agent
The following general provisions shall be applicable to the Escrow Agent.
(a) All disbursements shall be made by check of the Escrow Agent.
All funds received in the Escrow shall be deposited in a federally insured separate interest-
earning escrow account with any bank doing business in the State of California and approved by
the City and Developer.
Attachment No. 1
36(b) The Parties to the Escrow jointly and severally agree to pay all
costs, damages, judgments and expenses, including reasonable attorneys’ fees, suffered or
incurred by the Escrow Agent in connection with, or arising out of the Escrow, including, but
without limiting the generality of the foregoing, a suit in interpleader brought by the Escrow
Agent. In the event that the Escrow Agent files a suit in interpleader, the Escrow Agent shall be
fully released and discharged from all obligations imposed upon the Escrow Agent in the
Escrow.
(c) All prorations and/or adjustments called for in the Escrow shall be
made on the basis of a thirty (30) Day month unless the Escrow Agent is otherwise instructed in
writing.
(d) Any amendment to these escrow instructions shall be in writing
and signed by the City and Developer. At the time of any amendment, the Escrow Agent shall
agree to carry out its duties as Escrow Agent under such amendment.
(e) The liability of the Escrow Agent under the Agreement is limited
to performance of the obligations imposed upon it under Sections 302.1 to 302.7, inclusive, of
the Agreement.
302.4 Authority of Escrow Agent
The Escrow Agent is authorized to, and shall:
(a) pay and charge Developer, the Successor Agency and the City for
Escrow Costs in accordance with Section 302.2 hereof;
(b) pay and charge the City any amount necessary to place title to the
City Parcels in the condition necessary to satisfy Section 306 hereof and pay and charge the
Successor Agency any amount necessary to place title to the Agency Parcels in the condition
necessary to satisfy Section 306 hereof and its share of other Escrow Costs payable under
Section 302.2 hereof;
(c) pay and charge Developer for the premium of the CLTA Policy
and ALTA Policy as set forth in Section 307 hereof and, if applicable, pay and charge Developer
for any upgrade of the Title Policy or Additional Endorsements to the Title Policy which are
requested by Developer pursuant to Section 307 hereof;
(d) when Developer’s Conditions Precedent to Closing, the Successor
Agency’s Conditions Precedent to Closing and the City’s Conditions Precedent to the Closing
are satisfied or waived in writing by the Party for whom the condition was established, disburse
funds to the City and the Successor Agency and record the recordable documents and deliver
such recordable and non-recordable documents (i) to the City, the City Parcels Purchase Price
less the City Parcels Purchase Price Credits and the In Lieu Public Art Fee as applicable (less
City’s share of Escrow fees and costs, if any), (ii) to the Successor Agency, the Agency Parcels
Purchase Price (less Successor Agency’s share of Escrow fees and costs, if any), (iii) to the City
with copies to Developer, the Transfer of Easement Area Documents, the Assignment of Plans,
Reports and Data, the Assignment of Construction Contract, , (iv) to Developer, the City Grant
Attachment No. 1
37Deed and the Successor Agency Grant Deed, provided, however, that funds deposited shall not
be disbursed by the Escrow to the City or the Successor Agency unless and until the Escrow
Agent has recorded the City Grant Deed and the Successor Agency Grant Deed, and delivered
the Title Policy to Developer;
(e) insert appropriate amounts and the date of the Closing in
documents deposited by the Parties in the Escrow;
(f) do such other actions as necessary to fulfill the Escrow Agent’s
obligations under the Agreement, including, if applicable, obtaining the Title Policy and
recording any instrument delivered through Escrow if necessary and proper in the issuance of the
Title Policy;
(g) within the discretion of the Escrow Agent, direct Developer and
the City to execute and deliver any instrument, affidavit or statement, and to perform any act
reasonably necessary to comply with the provisions of FIRPTA and any similar state act or
regulation promulgated thereunder. The City and the Successor Agency agree to execute a
Certificate of Non-Foreign Status, a Certificate of Compliance with Real Estate Reporting
Requirement of the 1986 Tax Reform Act and/or a California Franchise Tax Board Form 590 or
similar form to assure Developer that there exist no withholding requirements imposed by
application of law as may be required by the Escrow Agent, on forms supplied by the Escrow
Agent;
(h) prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms, including
an IRS 1099-S form, and be responsible for withholding taxes, if any such forms and/or
withholding are provided for or required by law; and
(i) prepare and deliver to Developer, the City for review and approval
prior to the Closing settlement statements.
302.5 Termination of Escrow
If the Escrow is not in a condition to close by the Outside Closing Date, as
the same may be extended pursuant to the Agreement, then any Party which has fully performed
its obligations to be performed by that time under the Agreement may, in writing, demand the
return of money, documents or property and terminate the Escrow and the Agreement. If either
Party makes a written demand for the return of its money, documents or property, the Agreement
shall not terminate until ten (10) Days after the Escrow Agent shall have delivered copies of such
demand to the other Party at the respective addresses set forth in Section 701 hereof. If any
objections are raised by written Notice within such ten (10) Day period, the Escrow Agent is
authorized to hold all money, documents or property until instructed by a court of competent
jurisdiction or by mutual written instructions of the Parties. If no such objections are timely
made, the Escrow Agent shall immediately return the demanded money and/or documents, and
the escrow cancellation charges shall be paid equally by the Parties. Termination of the Escrow
shall be without prejudice as to whatever legal rights, if any, any Party may have against another
party arising from the Agreement. If no demands are made, the Escrow Agent shall proceed with
Attachment No. 1
38the Closing as soon as possible consistent with the terms of the Agreement. Nothing in this
Section shall be construed to impair or affect rights Developer may have to specific performance
or mandamus.
302.6 Closing of Escrow
The Close of Escrow shall occur within five (5) Days of the date upon
which Developer’s Conditions Precedent to Closing, Successor Agency’s Conditions Precedent
to Closing and the City’s Conditions Precedent to Closing are satisfied, but not later than the
Outside Closing Date. Regardless of whether Developer’s Conditions Precedent to Closing, the
Successor Agency’s Conditions Precedent to Closing and the City’s Conditions Precedent to
Closing are satisfied, if the Closing does not occur on or before the Outside Closing Date, the
Agreement shall terminate and be of no further force and effect. The Closing shall occur at the
offices of the Escrow Company. “Closing” or “Close of Escrow” shall mean the time and day
that the City Grant Deed, the Successor Agency Grant Deed and the Perpetual Easement
Agreement are recorded in the Official Records.
Possession of the City Parcels and the Agency Parcels shall be delivered in
“as is” condition to Developer immediately following the Closing, except that limited access
shall be permitted prior to Closing as permitted in Section 313 of the Agreement. Developer
shall accept title subject to the Approved State of Title and possession (subject to the City
Parking Agreement if applicable) on the Closing.
302.7 Closing Procedure
Upon receipt of written direction from both of the Parties to do so, Escrow
Agent shall Close the Escrow as follows:
(a) record the Grant Deeds with instruction to the Los Angeles County
Registrar/Recorder to deliver the Grant Deeds to Developer and a conforming copy thereof to the
City and the Successor Agency;
(b) record the Perpetual Easement Agreement and Reciprocal
Easement Agreement with instruction to the Los Angeles County Registrar/Recorder to deliver
such documents to Developer and a conforming copy thereof to City;
(c) record the deed of trust and any other recordable instruments
securing the Construction Loan with instruction to the Los Angeles County Registrar/Recorder to
deliver the originals to the Construction Lender and conforming copies to Developer and City;
(d) deliver the Title Policy issued by the Title Company to Developer;
(e) deliver to the City the funds in an amount equal to the City Parcels
Purchase Price less the City Parcels Purchase Price Credits, plus the In Lieu Public Art Fee as
applicable, less prorations and charges applicable against the City, including its share of the
Escrow Costs and other costs set forth in Section 303.2 hereof, as evidenced by the settlement
statement approved by the City;
Attachment No. 1
39(f) deliver to the Successor Agency the funds in an amount equal to
the Agency Parcels Purchase Price, less prorations and charges applicable against the Successor
Agency, including its share of the Escrow Costs and other costs set forth in Section 303.2 hereof,
as evidenced by the settlement statement approved by the Successor Agency;
(g) file any informational reports required by Internal Revenue Code
Section 6045(e), as amended, and any other applicable requirements;
(h) deliver the FIRPTA Certificate, if any, to Developer; and
(i) forward to Developer and the City a separate accounting of all
funds received and disbursed for each Party and copies of all executed, recorded or filed
documents deposited into Escrow, with such recording and filing date and information endorsed
thereon; and
303. Conditions Precedent to Closing
The obligation of Developer and City to instruct the Escrow Agent to effect the
Closing is conditioned upon satisfaction of the terms and conditions designated in this Section.
303.1 City’s Conditions
The City’s obligation to close Escrow and thereby effect the Closing is
conditioned upon the satisfaction or written waiver by the City of each and every one of the
conditions precedent (a) through (m), inclusive, described below (“City’s Conditions Precedent
to Closing”), which are solely for the benefit of the City:
(a) No Default. Developer shall not be in default of any of its material
obligations under the terms of the Agreement and all representations and warranties of
Developer contained herein shall be true and correct in all material respects.
(b) Execution of Documents. Developer shall have executed and
delivered into Escrow all documents to which it is a party hereunder or otherwise reasonably
requested by the City, including without limitation the following:
(1) Participation Agreement;
(2) Assignment of Construction Contract;
(3) Assignment of Plans, Reports and Data;
(4) LACMTA Parcel Private Use Lease Assignment(s);
(5) Transfer of Easement Area Documents for purposes of
assuming the City’s rights, interests and obligations in
accordance with the Agreement of the following
agreements: (i) the Reciprocal Easement Agreement, (ii)
Attachment No. 1
40the Perpetual Easement Agreement, (iii) the Parking
License Agreement, (iv) and the Construction License); and
(c) Deposit of Funds. Developer shall have deposited into Escrow
funds equal to the amount of City Parcels Purchase Price less the City Parcels Purchase Price
Credits, plus the in Lieu Public Art Fee as applicable, and any such amounts necessary to pay
Developer’s share of prorations and charges applicable against Developer, including its share of
the Escrow Costs, the Title Policy and other costs set forth in Section 302.2 hereof, as evidenced
by the settlement statement approved by the City.
(d) Evidence of Financing. Developer shall have submitted to the
City, and the City shall have approved, the Evidence of Financing in accordance with Section
314 hereof and the Schedule of Performance.
(e) No Litigation. No litigation shall be pending or threatened by any
third parties which seeks to enjoin the Project or the transactions contemplated herein or to
obtain damages in connection with the Agreement.
(f) Insurance. Developer shall have delivered to the City the
insurance certificates and endorsements required pursuant to Section 308 hereof.
(g) Construction Loan. The Construction Loan shall have been
approved by the City in accordance with the Agreement and the Construction Lender and
Developer shall have executed the Construction Loan.
(h) Construction Contract. The Construction Contract shall have been
approved by the City in accordance with the Agreement, and the General Contractor and
Developer shall have executed the Construction Contract.
(i) Approvals. The Project Entitlements Date shall have occurred and
subject to Section 403 the City shall have confirmed the availability for issuance of building
permits and the completion of plan check by the City Building and Safety Division.
(j) Exercise of Option. The City shall have delivered the Option
Notice and thereafter exercised the Option pursuant to the Option Agreement.
(k) City Parking License. The City Parking License shall be approved
for execution and delivery at the Closing by LACMTA.
303.2 Successor Agency Conditions
The Successor Agency’s obligation to close Escrow and thereby effect the
Closing is conditioned upon the satisfaction or written waiver by the Successor Agency of each
of the conditions precedent (a) and (b), inclusive, described below (“Successor Agency’s
Conditions Precedent to Closing”), which are solely for the benefit of the Successor Agency,
provided, however, that the Successor Agency hereby designates and appoints the City to act on
its behalf in the issuance of any such waiver and the City hereby accepts such appointment and
authority:
Attachment No. 1
41(a) The conditions precedent in favor of the City set forth under
Section 303.1, above, shall have been satisfied or waived by the City; and
(b) Deposit of Funds. Developer shall have deposited into Escrow
funds equal to the amount of Agency Parcels Purchase Price, and any such amounts necessary to
pay Developer’s share of prorations and charges applicable against Developer, including its
share of the Escrow Costs, the Title Policy and other costs set forth in Section 302.2 hereof, as
evidenced by the settlement statement approved by the City.
303.3 Developer’s Conditions
Developer’s obligation to close Escrow is conditioned upon the
satisfaction or written waiver by Developer of each and every one of the conditions precedent (a)
through (g), inclusive, described below (“Developer’s Conditions Precedent to Closing”), which
are solely for the benefit of Developer:
(a) No Default. Neither the City nor the Successor Agency shall be in
default of any of their obligations under the terms of the Agreement and all representations and
warranties of the City and the Successor Agency contained herein shall be true and correct in all
material respects.
(b) Execution of Documents. The City and the Successor Agency
shall have executed and delivered into Escrow all documents to which each is a party hereunder
or otherwise reasonably requested by Developer, including without limitation the following:
(1) Participation Agreement;
(2) LACMTA Parcel Private Use Lease Assignment(s);
(3) Assignment of Agreements and Transfer of Easement Area
Documents for purposes of assuming the City’s rights,
interests and obligations in accordance with the Agreement
of the following agreements: (i) the Reciprocal Easement
Agreement, (ii) the Perpetual Easement Agreement, (iii) the
Parking License Agreement, (iv) and the Construction
License;
(4) City Parking License; and.
(5) the City Grant Deed and the Successor Agency Grant Deed.
(c) Form of LACMTA Documents. The City, LACMTA and
Developer (limited to its reasonable discretion in accordance with the criteria set forth below in
this Section 303.3(c)) shall have approved the forms of the Reciprocal Easement Agreement, (ii)
the Perpetual Easement Agreement, and (iii) the Private Use Lease. For purposes hereof, it shall
be unreasonable for Developer to withhold such approval if it cannot demonstrate that such
forms would have a material, adverse effect on its construction or operation of the Project.
Attachment No. 1
42(d) Review and Approval of Title. Developer shall have reviewed and
approved any changes in the condition of title, as provided in Section 306.
(e) Title Policy. The Title Company shall, upon payment of the Title
Company’s regularly scheduled premium, be irrevocably committed to issue the ALTA Policy
upon the Closing, in accordance with Section 307.
(f) No Litigation. No litigation shall be pending by any third parties
that seek to enjoin the Project or the transactions contemplated herein.
(g) Exercise of Option. The City shall have delivered the Option
Notice and thereafter exercised the Option pursuant to the Option Agreement.
(h) Credits. The City Purchase Price Credits shall have been
reasonably determined pursuant to Section 301.2 of this Agreement.
304. Form of Deeds
The City shall convey to Developer title to the City Parcels in the condition
provided in Section 306 of the Agreement by delivery of the City Grant Deed and the Successor
Agency shall convey to Developer title to the Agency Parcels in the condition provided in
Section 306 of the Agreement by delivery of the Successor Agency Grant Deed.
305. Time For and Place of Delivery of Deeds and other Documents
The parties shall deposit the deeds and other documents required to be executed
and delivered by it with the Escrow Agent at least one (1) business day prior the date established
for Closing in the Schedule of Performance.
306. Condition of Title
Prior to entering into the Agreement, Developer satisfied itself that the title to the
City Parcels and the Agency Parcels was in an acceptable condition (the “City Parcels and the
Agency Parcels Approved Title Condition"), provided there are no liens, encumbrances,
easements or other exceptions to title except those shown as approved or conditionally approved
on Developer’s Title Objection Letter to First American Title Insurance Company, dated June 6,
2014 (“Title Objection Letter”), attached hereto as Attachment No. 11 (provided that, (i) for
conditionally approved exceptions, the language required for each such exception as set forth on
the Title Objection Letter is added or the action required therein with respect to each such
exception is carried out and satisfied and (ii) each of the required endorsements set forth in the
Title Objection Letter shall be issued at Closing at Developer’s expense) which reflects
Developer’s comments to the preliminary title report issued by First American Title Insurance
Company Order No. NCS-661365-LA2, dated as of March17, 2014 (the “Preliminary Report").
In addition, prior to entering into the Agreement, Developer satisfied itself that title to the
Easement Area was in an acceptable condition (the “Easement Area Approved Title
Condition"), provided that it was in the “Approved Title Condition” as such term is defined in
Section 7 of the Option Agreement. The Preliminary Report has also been marked up to reflect
the exceptions to title of the Easement Area consistent with the Easement Area Approved Title
Attachment No. 1
43Condition. As used herein, the term “Site Approved Title Condition” means, collectively, the
City Parcels/Agency Parcels Approved Title Condition and the Easement Area Approved Title
Condition. Neither the City nor the Successor Agency shall take any action that will adversely
affect the Site Approved Title Condition as applicable to the Site without the prior consent of
Developer, which consent shall not be unreasonably withheld, conditioned or delayed. Upon
Closing, the City and the Successor Agency shall deliver title to the City Parcels and the Agency
Parcels in the City Parcels and the Agency Parcels Approved Title Condition, and shall deliver
the Transfer of Easement Area Documents in the Easement Area Approved Title Condition.
If Title Company issues any additional title report or supplement to the
Preliminary Report (either, a “Supplemental Report”) and it reveals exceptions to title that are
not within the Site Approved Title Condition and which did not arise through the fault of actions
Developer after the Effective Date (“New Exceptions”), Developer shall have ten (10) business
days to deliver written notice to the City and the Successor Agency objecting to same. Any New
Exception that (i) Developer does not timely object to in writing, and (ii) if timely objected to, is
not reasonably objected to by Developer, shall be deemed to have been accepted and shall
thereafter become part of the Site Approved Title Condition. If Developer timely and reasonably
objects to any New Exceptions, then (a) with respect to such disapproved New Exceptions that
affect the City Parcels, (i) if the exception arose as a result of a breach of the City’s covenant set
forth above, the City shall cause such disapproved New Exception to be insured over or removed
upon Closing or (ii) if the exception arose for reasons other than as a result of a breach of the
City’s covenant set forth above despite commercially reasonable efforts, the City is not able to
cause such disapproved New Exception to be insured over or removed upon Closing, the City
may elect by written notice to Developer within ten (10) Business Days, either to (y) cause such
disapproved New Exception to be insured over or removed upon Closing or (z) elect not to cure
such New Exception, whereupon Developer shall have the right to terminate this Agreement or
waive such right whereupon such New Exception shall become part of the Site Approved
Condition of Title; (b) with respect to such disproved New Exceptions that affect the Agency
Parcels, (i) if the exception arose as a result of a breach of the Successor Agency’s covenant set
forth above, the Successor Agency shall cause such disapproved New Exception to be insured
over or removed upon Closing or (ii) if the exception arose for reasons other than as a result of a
breach of the Successor Agency’s covenant set forth above, the Successor Agency may elect by
written notice to Developer within ten (10) Business Days, either to (y) cause such disapproved
New Exception to be insured over or removed upon Closing, or (z) elect not to cure such New
Exception, whereupon Developer shall have the right to terminate this Agreement or waive such
right whereupon such New Exception shall become part of the Site Approved Condition of Title;
and/or (c) with respect to such disapproved New Exceptions that affect the Easement Area, (i) if
the exception arose as a result of a breach of LACMTA’s covenant set forth in Section 7 of the
Option Agreement, the City shall cause LACMTA to cause such disapproved New Exception to
be insured over or removed upon Closing, or (ii) if the exception arose for reasons other than as
a result of a breach of LACMTA’s covenant set forth in Section 7 of the Option Agreement, the
City may elect by written notice to Developer within ten (10) Business Days, either to (y) cause
such disapproved New Exception to be insured over or removed upon Closing, or (z) elect not to
cure such New Exception, whereupon Developer shall have the right to terminate this Agreement
or waive such right whereupon such New Exception shall become part of the Site Approved
Condition of Title. Notwithstanding the foregoing, in no event shall either of the following types
of exceptions be included in the Site Approved Title Condition: (i) any exception to title to the
Attachment No. 1
44Agency Parcels arising out of State Department of Finance or Successor Agency Oversight
Board action or inaction with respect to such conveyance thereof to Developer or (ii) any
exception created by action of City or Successor Agency after the effective date of the
Preliminary Report (other than the documents described in Section 303.1(b). Developer agrees
(subject to the satisfaction of Developer’s Conditions to Closing) to take title to the Site in the
Site Approved Title Condition. In addition, title to the City Parcels, the Agency Parcels and the
Easement Area shall be subject to, the Perpetual Easement, the City Parking Agreement (if
applicable), the Private Use Lease, the Redevelopment Plan and all rights reserved to the City as
set forth in the City Grant Deed and the Transfer of Easement Area Documents, and to the
Successor Agency as set forth in the Successor Agency Grant Deed.
Developer may, at its sole cost and expense, obtain a current survey of the City
Parcels, the Agency Parcels and the Easement Area (“Survey”).
307. Title Insurance
Concurrently with recordation of the Grant Deeds conveying title to the City
Parcels and the Agency Parcels, the Title Company shall provide and deliver to Developer, at
Developer’s expense, an American Land Title Association Extended Coverage Policy Form of
title insurance (“ALTA Policy”) together with such endorsements (i) as Developer may
reasonably request and/or (ii) as the City or the Successor Agency may have committed to
provide in order to cause objected to title exceptions to be removed or insured over as provided
in Section 306 above, with a policy coverage limit in an amount equal to the sum of the City
Parcels Purchase Price and the Agency Parcels Purchase Price insuring that the title to the City
Parcels, the Agency Parcels and the rights under the Perpetual Easement Agreement and Transfer
of Easement Area Documents are vested in Developer in the Site Approved Title Condition
required by Section 306. Such title policy shall be subject to the Title Company’s standard
terms, conditions and exceptions and such other exceptions to title as are approved by Developer
(including matters approved as provided above). The Title Company shall provide the City with
a copy of the ALTA Policy.
308. Insurance
308.1 General Requirements
At all times during the term of the Agreement until a Release of
Construction Covenants is issued by the City, without limiting the indemnity provisions set forth
herein, to the fullest extent permitted by law, Developer, at its sole cost, shall procure and
maintain in full force and effect the following policies of insurance (provided that the required
insurance may be provided with a combination of primary and umbrella policies) from a
company or companies authorized to do business in the State of California or from a company or
companies listed on the California list of Eligible Surplus Lines Insurers (http://www.sla-
cal.org/carrier_info/lesli/) with a current rating from A.M. Best Company of A:VIII or better:
(a) General Liability. Commercial general liability insurance which
affords coverage at least as broad as Insurance Services Office (ISO) Commercial General
Attachment No. 1
45Liability coverage form ISO CG 00 01 11 85 [NUMBER BEING CHECKED] with minimum
limits of not less than $5,000,000 [NUMBER BEING CHECKED] per occurrence.
(b) Automobile Liability. Commercial automobile liability insurance
with coverage at least as broad as ISO CA 00 01 06 92 [NUMBER BEING CHECKED]
covering Symbol 1 (“Any Auto”), with minimum limits of $5,000,000 [NUMBER BEING
CHECKED] combined single limits.
(c) Worker’s Compensation. Workers’ Compensation insurance, as
required by the State of California, and Employer’s Liability insurance, with a minimum limit of
$1,000,000 [NUMBER BEING CHECKED] per accident or occupational illness for bodily
injury or disease.
(d) Property Insurance. Fire and hazard “all risk” insurance covering
100% of the replacement cost of the Improvements (including offsite materials) in the event of
fire, lightening, windstorm, vandalism, malicious mischief and all other risks normally covered
by “all risk” coverage policies in the area where the Site is located (including loss by flood if the
Site is in an area designated as subject to the danger of flood and earthquake (if commonly
carried by similar projects in the region and available at reasonable rates)).
Insurance policies required by this Section 308 shall conform to the form,
amounts and other requirements that are applicable in connection any approvals required by
LACMTA in connection with the development of the Project by Developer. The City Manager
or designee shall be authorized to agree to modifications of the requirements of this Section 308
that may arise in connection with such LACMTA approvals.
Insurance policies held by the City or the Successor Agency on the Site
(including, without limitation, those for fire or casualty) are not to be transferred, and the City
and the Successor Agencies will cancel their own policies in connection with the Site effective
upon the Closing.
Subsequent to the issuance of a Release of Construction Covenants,
Developer shall maintain such insurance coverage as is customary for a building of the same
general size and use in a similar area within the Culver City area and/or Los Angeles County.
308.2 Endorsements
The policy or policies of insurance required by Section 308.1(d), above,
shall be endorsed as follows:
(1) The policies shall include an executed endorsement, on the
applicable policy endorsement form, showing the City and the Successor Agency as additional
insureds.
(2) A waiver of subrogation stating that the insurer waives
indemnification from the City or Successor Agency.
(3) The policy or policies shall not be canceled or the coverage
reduced until the first to occur of (a) a thirty (30)-Day written notice of cancellation has been
Attachment No. 1
46served upon the City Risk Manager and the City Manager by registered or certified mail, or (b)
the completion of construction of the Project.
308.3 Deductible and Self-Insured Retention
In the event any of the insurance coverages required to be furnished by
Developer have deductible or self-insured provisions, Developer shall fully protect the City and
the Agency in the same manner as those interests would have been protected had the policy not
contained the deductible or self-insured provision. The deductible or self-insured amount shall
be shown on any “evidence of insurance” provided to the City, and the City reserves the right to
limit said amount and to review Developer’s financial statements if the amount exceeds a level
reasonably acceptable to the City Risk Manager. A deductible amount of not more than Ten
Thousand Dollars ($10,000.00) shall be acceptable to the City.
308.4 Evidence of Insurance
Developer shall deliver said policy or policies of insurance or certified
true copies thereof, or endorsement forms furnished by the City Risk Manager (“evidence of
insurance”) for approval as to sufficiency by the City Risk Manager and approval as to form by
the City Attorney, as appropriate, which approval or disapproval shall be given within ten (10)
business days and shall not be unreasonably withheld or delayed. The endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. If Workers’
Compensation Coverage is placed with the State Compensation Insurance Fund, a State
Compensation Insurance Fund Certificate of coverage will be acceptable if endorsed in
accordance with Section 308.2(b), above.
308.5 Failure to Maintain Coverage
Should Developer fail to maintain policies with the coverages and limits
specified in Section 308.1 above, in full force and effect at all times, the City shall have the right
to suspend Developer’s operations until Developer has fully complied with these provisions and
furnished the required evidence of insurance. In the event that Developer’s operations are
suspended for failure to maintain acceptable insurance coverage, Developer shall not be entitled
to an extension of time for completion of the work.
308.6 Insurance for Contractors and Subcontractors
All contractors and subcontractors shall be included as additional insureds
under Developer’s policies, or Developer shall be responsible for causing such contractors and
subcontractors to purchase the appropriate insurance in compliance with the terms of this
Section. All coverages and endorsements of coverages for contractors and subcontractors shall
be subject to all of the requirements stated herein, unless otherwise first approved in writing by
the City in advance of such contractors and subcontractors entry onto the Site. In addition,
contractors and subcontractors whose profession requires licensure, including, but not limited to
architects and engineers, shall be required to maintain professional liability insurance, applicable
to their respective professions, in an amount not less than $1 million [NUMBER BEING
CHECKED] per claim, without environmental restrictions, for a period whose prior acts
Attachment No. 1
47coverage shall be no later than the first date of the Agreement and whose extended reporting
coverage period shall be at least three (3) years [NUMBER BEING CHECKED] from the time
that all work under the Agreement is completed.
309. Taxes and Assessments
Ad valorem taxes and assessments, if any, on the City Parcels, the Agency Parcels
and the Easement Area or any portion thereof accruing after the Closing, and ad valorem taxes
upon the Agreement or any rights thereunder, if any levied, assessed or imposed before or after
the Closing shall be paid by Developer.
310. Occupants of the City Parcels and the Agency Parcels
The City Parcels and the Agency Parcels shall be conveyed free of any possession
or right of possession except that of Developer and matters included within the Site Approved
Title Condition.
311. Zoning of the Site
The Project Entitlements at the time of the Closing shall permit development of
the Improvements and the use, operation and maintenance of such Improvements in accordance
with the provisions of the Agreement.
312. Condition of the Site; Release of City and Successor Agency
Except as expressly provided in Sections 208.1 (as to the City only), 208.2 (as to
the Successor Agency only) and 317, and in the next paragraph of this Section 312, the City and
the Successor Agency each expressly and specifically disclaims the making of any
representations or warranties, express or implied, regarding the Site or matters affecting the Site
including, without limitation, the physical and environmental condition of the Site. The City and
the Successor Agency shall, to the greatest extent legally allowable, assign to Developer all
rights, claims, actions and/or causes of action it may have against prior owners of the Site and
tenants and/or anyone who has occupied the Site in connection with the environmental condition
of the Site.
The City and the Successor Agency represent and warrant that each has delivered
to Developer all Environmental Reports prepared by the City or the Successor Agency pertaining
to the Site and/or in the City’s or the Successor Agency’s possession with respect to the Site.
Developer acknowledges and agrees that the Site is to be conveyed to, and accepted by,
Developer, in its present condition, “AS IS,” and Developer hereby assumes the risk of adverse
physical characteristics and conditions, including, but not limited to, the presence of Hazardous
Materials. After taking title to the Site, Developer shall be solely responsible for responding to
and complying with any administrative notice, order, request or demand, or any third party claim
or demand relating to potential or actual contamination of the Site.
Upon the Closing, the physical and environmental condition, possession or title of
the Site is and shall be delivered from the City and the Successor Agency to Developer in an “as-
is” condition, with no warranty expressed or implied by the City or the Successor Agency,
Attachment No. 1
48including without limitation, the presence of Hazardous Materials or the condition of the soil, its
geology, the presence of known or unknown seismic faults, or the suitability of the Site for the
development purposes intended hereunder.
Except for obligations of the City and/or the Successor Agency set forth in the
Agreement, upon the Closing, Developer hereby waives, releases and discharges forever the City
and the Successor Agency and their Representatives from all present and future Losses and
Liabilities, present and future, arising out of or in any way connected with the City’s, the
Successor Agency’s or Developer’s use, maintenance, ownership or operation of the Site, except
those arising out of the sole negligence or willful misconduct of the City, the Successor Agency
or their Representatives.
Developer acknowledges that it is aware of and familiar with the provisions of
Section 1542 of the California Civil Code which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Developer hereby waives and relinquishes all rights and benefits which it may
have under Section 1542 of the California Civil Code with respect to the matters described in this
Section 312. Unless explicitly set forth elsewhere in the Agreement, Developer does not waive
or relinquish any such rights and benefits it may have with respect to any other obligations of the
City or the Successor Agency set forth in the Agreement.
With respect to any remediation of Hazardous Materials in, on or around the Site,
if requested by Developer, at Developer’s cost, (a) Successor Agency will use its reasonable best
efforts to undertake all steps necessary for Developer to realize the limited immunity and other
benefits available, if any, under The Polanco Redevelopment Act, and (b) the City will use its
reasonable best efforts to undertake all steps necessary for Developer to realize the limited
immunity and other benefits available under AB440 (Health & Safety Code Section 25403 et
seq.
Nothing contained in this Section 312 is intended to modify the indemnities
contained in the Agreement.
313. Preliminary Work by Developer
Developer shall submit all permit applications, drawings and the Evidence of
Financing and satisfy all other obligations and conditions of the Agreement to be satisfied prior
to Closing within the times established therefore in the Schedule of Performance.
Prior to the Closing and upon the Parties’ execution of Right of Entry Agreements
and Developer’s satisfaction of conditions precedent therein, the City shall permit Developer
and/or Developer’s representatives to enter the City Parcels at reasonable times, and the
Successor Agency shall permit Developer and/or Developer’s representatives to enter the
Agency Parcels at reasonable times, for the purpose of soils testing, survey work and other
Attachment No. 1
49predevelopment activities and shall make commercially reasonable efforts to secure such right of
entry on property which is not in the possession of the City or Successor Agency. The City
agrees to provide, or cause to be provided, to Developer all data and information pertaining to
the City Parcels which is available to the City when requested by Developer, and the Successor
Agency shall do likewise with respect to the Agency Parcels when requested by Developer.
Developer shall defend, indemnify, and hold the City and the Successor Agency harmless for all
Losses and Liabilities incurred by the City and/or the Successor Agency arising out of any entry
onto the Site by Developer, its employees, representatives, contractors or agents pursuant to this
Section 313.
314. Evidence of Financing
Within the time set forth therefore in the Schedule of Performance, Developer
shall submit to the City evidence reasonably satisfactory to the City that Developer has obtained
sufficient equity capital and commitments for the financing necessary for the acquisition of the
Site and development of the Improvements. The City shall approve or disapprove such Evidence
of Financing within twenty (20) Days of submission, with such approval not to be unreasonably
withheld or delayed. Such evidence (collectively, “Evidence of Financing”) shall include, at a
minimum:
(a) A construction budget(s) for the Improvements.
(b) Construction loan documents from a lender reasonably acceptable to the
City as required by Section 406 (including any amendments thereto, the “Construction Loan”)
along with evidence reasonably satisfactory to the City Manager that the lender intends to
execute the same and provide an initial funding on or before the Closing. A Construction Loan
may be secured by a deed of trust or other security instrument recorded against the Site, as
reasonably approved by the City. Any such Construction Loan shall provide for notice of default
to the City, the right to cure and such other terms as required by Section 406.
(c) Evidence of such other loans or grants or Developer Equity as may be
required to pay (i) the amount of the Construction Contract for the Improvements, plus (ii) an
amount equal to all consultant and loan fees, “points,” commissions, charges, furnishings,
fixtures, taxes, interest, startup costs, Developer’s overhead and administration, and other costs
and expenses of developing and completing the Improvements.
(d) The Construction Contract as set forth in Section 407 (including any
amendments thereto, “Construction Contract”) or other commitment reasonably acceptable to
the City along with evidence reasonably satisfactory to the City Manager that the contractor
intends to execute the same and is ready, willing and able to construct the Improvements for the
cost indicated therein subsequent to the Closing. The Construction Contract will be a fixed price
or guaranteed maximum cost contract unless Developer reasonably demonstrates that another
type of contract will not adversely affect the financing of the project. Any such Construction
Contract shall provide for delivery to the City by the Contractor of copies of any notice of
default to the City, the right to cure such default and such other terms as required by Section 407.
Attachment No. 1
50(e) A copy of the most recently prepared reviewed Annual Financial
Statements (including the opinion of Developer’s accountant) for Developer, their managing
members and parent company, if any, and a copy of Developer’s most recent internally prepared,
unaudited financial statements, which shall include a balance sheet, income statement, statement
of retained earnings, statement of cash flows, and footnotes thereto, prepared in accordance with
generally accepted accounting principles consistently applied. If requested by Developer, such
financial statement may be made to the City’s financial consultant rather than delivered to the
City or the Successor Agency.
(f) To the extent required by the Construction Loan documents as a condition
of disbursement of the Construction Loan, evidence of permanent financing or a commitment
therefore in an amount sufficient to repay in full the Construction Loan at such time as the
Construction Loan shall require full repayment.
(g) Such other documentation and financial information as may be requested
by the City with respect to Developer or otherwise with respect to the Closing and construction
and operation of the Project so as to permit the City to reasonably determine that Developer has
obtained sufficient financing for Completion of the Improvements.
The cost of acquisition of the Site and the cost of the design, planning,
construction and development of the Improvements may be financed with funds other than the
proceeds of a Construction Loan, provided that evidence satisfactory to the City that Developer
has, at the time such evidence of financing is required to be demonstrated, sufficient equity
capital, or other form of funds in sufficiently liquid form, not otherwise encumbered by any
pledge or grant of a security interest to a third party (other than the source of such other
financing for the Project), to assure complete funding for the development and construction of
the Improvements (as set forth in the Scope of Development and provided for in the Agreement).
Developer shall have the right to use any funds or assets available to Developer for actual
payment of costs, notwithstanding that said funds or assets may be different from the sources of
equity capital or other form of funds utilized to demonstrate the evidence of equity financing or
other form of funds required by the Agreement. Developer’s evidence of equity financing shall
be satisfied by evidence of any combination of the following:
(a) Cash, on deposit in a construction account, checking account, money
market account, escrow or other immediately available form of deposit, held in the name of
Developer, over which Developer retains the right to direct investments;
(b) An irrevocable direct pay letter of credit, in favor of Developer, drawn on
a bank or other financial institution first approved in writing by the City, with a term that is
consistent with the anticipated need for funds during the construction period, the terms of which
are consistent with the Agreement;
(c) An available line of credit with a bank or other financial institution
approved in writing by the City Manager, the terms of which are consistent with the Agreement,
provided that the collateral or assets pledged by Developer for such line of credit shall not
otherwise be utilized to demonstrate the evidence of equity financing required by the Agreement,
unless Developer has the right to substitute such collateral or assets with other collateral or assets
Attachment No. 1
51which other collateral or assets are not otherwise utilized to demonstrate the evidence of equity
financing required by the Agreement and which may or may not be liquid; or
(d) Evidence of any other comparable form of assets that the City Manager
reasonably determines is sufficiently liquid to assure that it will be available to Developer when
needed to pay Project expenses, including capital commitments from direct and indirect owners
of Developer supported by assets that the City Manager reasonably determines are sufficiently
liquid to assure that it will be available to Developer when needed to pay Project expenses. If
requested by Developer, such evidence may be made to the City’s financial consultant rather
than delivered to the City or the Successor Agency.
315. [INTENTIONALLY OMITTED]
316. Assignment of Agreements; City Parking License
316.1 Assignment of Agreements
By the Close of Escrow and subject to the terms and conditions of the
Agreement, the City shall execute and thereafter assign the following documents to Developer
pursuant to the Transfer of Easement Area Documents in the form attached hereto as Attachment
No. 5-C:
(1) The Perpetual Easement Agreement;
(2) The Reciprocal Easement Agreement;
(3) The Parking License Agreement; provided, however, City retains
the obligation to provide Temporary Spaces in the Ince Parking
Structure as contemplated therein;
(4) The LACMTA Parcel Private Use Lease Assignment(s); and
(4) The Construction License Agreement.
The City agrees to consult with Developer and carefully consider any
recommendations and objections raised by Developer regarding the preparation of the final
forms of the Perpetual Easement Agreement, the Reciprocal Easement Agreement and any other
agreements with the City of Los Angeles, LACMTA or the Authority deemed reasonably
necessary by the City to facilitate development of the Project.
316.2 City Parking License
The Option Agreement contemplates that LACMTA shall not
unreasonably withhold approval of, and will reasonably consider, any proposals made by City, to
share the Temporary Parking and EXPO Spaces during Non-Peak Hours as more particularly
described in the form of the Perpetual Easement Agreement attached thereto at Article III,
Section 3.4. As part of the development of the Improvements therefore, the Parties hereto agree
to cooperate with LACMTA such that the City shall retain use during non-peak hours of the
Attachment No. 1
52Temporary Parking and EXPO Spaces which shall be memorialized in the form of a parking
license to be executed by the City and LACMTA by the Close of Escrow (“City Parking
License”). The City Parking License shall have a term of fifty five (55) years with an option for
renewal in accordance with the terms therefor.
317. Real Estate Commissions
Neither the City nor the Successor Agency shall be liable for any real estate
commissions or brokerage fees which may arise in connection with the sale of the City Parcels
and the Agency Parcels to Developer. Each of the City and the Successor Agency represents and
warrants that it has engaged no broker, agent, finder or third party in connection with this
transaction. Developer hereby indemnifies the City from and against any and all costs, claims
and judgments arising out of or related to the services of any broker or finder in connection with
the City Parcels and/or the Agency Parcels engaged by Developer, and Developer shall be solely
responsible for any compensation that may be due such broker or finder.
318. Parking Encroachments
By the Close of Escrow Developer shall obtain or cause to be obtained at the time
of conveyance thereof all encroachments to the extent necessary to permit Developer to Develop
and Cause Construction of the Improvements and the use, operation and maintenance of such
Improvements in accordance with the provisions of the Agreement and the Comprehensive Plan
approved by the City pursuant to the PD Zone Requirements, including the following known
encroachments (collectively, the “Parking Encroachments”), as more particularly depicted on
Attachment No. 1-B:
(1) From the City of Los Angeles, encroachments on (i) Venice Boulevard,
(ii) National Boulevard and (iii) the LACMTA Parcel;
(2) From the California Department of Transportation, encroachments on
Venice Boulevard; and
(3) From the City of Culver City, encroachments on National Boulevard
(“City Parking Encroachments”)
The City shall make commercially reasonable efforts to assist Developer and
work with all governmental agencies, including the City of Los Angeles and the California
Department of Transportation, to obtain the necessary Parking Encroachments; provided,
however, nothing shall prevent the City from reviewing and approving or disapproving the City
Parking Encroachments acting in its governmental capacity.
319. Developer Responsibilities after Closing
After the Closing, it shall be Developer’s responsibility to remedy any soil or
geologic condition at its cost and to fulfill its obligations hereunder. Developer shall perform all
preparation of the Site for construction of the Project in accordance with Environmental Laws.
Developer shall be responsible for all Site preparation costs after the Closing. Developer shall
take all reasonably necessary precautions to prevent the release of any Hazardous Materials onto
Attachment No. 1
53the Site or into the environment in connection with the use or development thereof in violation of
applicable Governmental Requirements. Such precautions shall include complying with and
causing all activities on the Site to comply with all Governmental Requirements with respect to
Hazardous Materials. In addition, Developer shall install and utilize such equipment and
implement and adhere to all procedures, requirements and restrictions imposed by Governmental
Requirements pertaining to the disclosure, storage, use, removal and disposal of Hazardous
Materials. Developer further covenants that it shall not, except for customary materials used and
applied in accordance with all Governmental Requirements and in the ordinary course of
completing, maintaining and operating the Improvements or customarily utilized by households
for domestic purposes in accordance with all Governmental Requirements, (i) deposit Hazardous
Materials in, on or upon the Site, in violation of any applicable Governmental Requirements, nor
(ii) permit the deposit of Hazardous Materials in, on or upon the Site in violation of any
applicable Governmental Requirements.
Prior to and during construction of the Project, the City and Developer shall not
engage in any Hazardous Materials Activity, except in strict compliance with all Environmental
Laws, and shall comply with all Environmental Laws in connection with any activity on or about
the Site, including the construction and operation of the Project. Developer shall maintain the
Site and any Improvements thereon in good condition free from graffiti and from any
accumulation of debris or waste materials, and otherwise in conformity with the Culver City
Municipal Code and all other applicable Governmental Requirements.
320. Required Disclosures after Closing
If, after Developer takes title to the City Parcels and the Agency Parcels,
Developer discovers the presence of Hazardous Materials under or upon the Site in violation of
applicable Governmental Requirements, or there is a release of Hazardous Materials on or from
the Site, Developer shall provide to the City a copy of any environmental permits, disclosures,
applications, entitlements or inquiries relating to such Hazardous Materials, including any
notices of violation, notices to comply, citations, inquiries, clean up or abatement orders, cease
and desist orders, reports filed pursuant to self-reporting requirements and reports filed or
applications made pursuant to any Governmental Requirements relating to Hazardous Materials
and underground tanks including, specifically, without limitation, the following:
(1) All required reports of releases of Hazardous Materials, including notices
of any release of Hazardous Materials as required by any Governmental Requirements;
(2) All notices of suspension of any environmental permits;
(3) All notices of violation from federal, state or local environmental
authorities;
(4) All orders under the State Hazardous Waste Control Act and the State
Hazardous Substance Account Act and corresponding federal statutes, concerning investigation,
compliance schedules, clean up, or other remedial actions;
(5) All orders under the Porter Cologne Act, including corrective action
orders, cease and desist orders, and clean up and abatement orders;
Attachment No. 1
54(6) Any notices of violation from OSHA or Cal OSHA concerning
employees’ exposure to Hazardous Materials; and
(7) All complaints and other pleadings filed against Developer relating to
Developer’s storage, use, transportation, handling or disposal of Hazardous Materials on the Site.
In the event any Hazardous Materials are discovered on the Site after the Date of
Agreement in violation of applicable Governmental Requirements, or a release of Hazardous
Materials into the environment occurs in violation of applicable Governmental Requirements,
Developer shall promptly and fully remediate such Hazardous Materials in accordance with all
Governmental Requirements, and such remediation shall be at Developer’s sole cost and
expense. Upon request of the City, Developer shall furnish to the City a copy of any and all
other environmental documents or inquiries relating to or affecting the Site from time to time
during Developer’s ownership or possession thereof.
321. Taxes and Assessments
Subsequent to the Closing, Developer shall pay, when due, all taxes, assessments,
and special taxes levied on the Site, in accordance with applicable Governmental Requirements.
322. City Rights of Entry
If at any time Developer fails to maintain the Site in accordance with all
applicable Governmental Requirements and such condition is not corrected (i) within forty eight
(48) hours after written notice from the City for problems related to public health and safety,
such as debris or waste material; (ii) within five (5) Days after written notice from the City for
graffiti and general maintenance; or (iii) thirty (30) Days after written notice from the City with
respect to landscaping and building improvements, then the City, in addition to whatever
remedies it may have at law or at equity, shall have the right to enter upon the applicable portion
of the Site and perform all acts and work necessary to protect, maintain, and preserve the Site
and the Improvements and landscaped areas thereon, and to attach a lien upon the Site, or to
assess the Site, in the amount of the expenditures arising from such acts and work of protection,
maintenance, and preservation by the City and/or costs of such cure, including a ten percent
(10%) administrative charge, which amount shall be promptly paid by Developer upon demand.
323. Indemnification
Following the Closing, Developer agrees to save, protect, defend, indemnify and
hold harmless the City and the Successor Agency, and their respective Representatives, from and
against any and all Losses and Liabilities (including, without limitation, reasonable attorneys’
and consultants’ fees, investigation and laboratory fees, and remedial and response costs but
excluding the extent to which such loss or liability arises from the active negligence or
intentional misconduct of the City or Agency) which may now or in the future be incurred or
suffered by the City and/or Agency, or their Representatives, by reason of, resulting from or
arising in any manner whatsoever as a direct or indirect result of (i) the ownership (or
possession) of all or any part of the Site for purposes of any Governmental Requirements
regulating Hazardous Materials first discovered on the Site following the Closing, (ii) any act or
omission on the part of Developer, or its Representatives, contractors or invitees with respect to
Attachment No. 1
55the Site or construction of the Improvements thereon, (iii) the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission or release from the Site of any Hazardous
Materials first discovered on the Site following the Closing, (iv) any environmental or other
condition of the Site first discovered following the Closing, and (v) any Losses and Liabilities
incurred with respect to the Site under any Governmental Requirements relating to Hazardous
Materials first discovered on the Site following the Closing. Developer’s obligations under this
Section 323 shall survive the issuance of the Release of Construction Covenants or any
termination of the Agreement.
400. DEVELOPMENT OF THE SITE
401. Scope of Development; Project Entitlements
401.1 Scope of Development
Developer shall be solely responsible for making the Site usable for the
Project and appropriate for construction of the Improvements as a result of any Site conditions,
including, but not limited to, flood zones, Alquist Priolo, and similar matters. Within the times
set forth in the Schedule of Performance Developer shall Develop and Cause Construction of the
Improvements at the sole cost and expense of the Developer, subject only to the City Purchase
Price Credits, in accordance with the Scope of Development, the Schedule of Performance, the
Conceptual Plan approved by the City pursuant to the PD Zone Requirements, the other Project
Entitlements and all conditions of approval to the Project Entitlements. The Construction
Contract entered into by Developer for the Improvements shall require construction of the
Improvements in a manner consistent with the Conceptual Plan approved by the City pursuant to
the PD Zone Requirements, the other Project Entitlements and all conditions of approval to the
Project Entitlements.
As used herein, the term “Improvements” includes the development of a
mixed-use, place making, sustainable development, consistent with the Conceptual Plan
approved by the City pursuant to the PD Zone Requirements, the other Project Entitlements and
all conditions of approval to the Project Entitlements, and shall include the following:
(a) On and Offsite Infrastructure Improvements. On and Offsite
Infrastructure Improvements shall include:
(1) Utility Relocation. All necessary utility relocation on or
around the Site (collectively, the “Utility Relocation”). The projected costs for the Utility
Relocation shall be credited against the City Parcels Purchase Price pursuant to Section 301.2
hereof.
(2) Infrastructure Improvements. All necessary infrastructure
improvements on the Site for the Improvements as approved by the City, including (collectively,
the “Infrastructure Improvements”): curbs, gutters, sidewalks, street trees, lighting, special
paving at crosswalks abutting the Project. The projected costs for the Infrastructure
Improvements shall be credited against the City Parcels Purchase Price pursuant to Section 301.2
hereof.
Attachment No. 1
56(3) Isolation Wall. A shoring wall, subject to approval of the
LACMTA pursuant to the Option Agreement for Perpetual Easement, to be located underground
approximately 24 feet deep (the contemplated depth of the Parking Garage), or the depth of the
Parking Garage, whichever is deeper, along the property line between the Easement Area and the
EXPO Light Rail Project for the purpose of protecting the EXPO Light Rail Project from adverse
impacts such as the weakening of subjacent support due to the excavation for the construction of
the Parking Garage (the “Isolation Wall” or “Shoring Wall”).
(b) Development Program. A multi-level high quality transit
orientated development with the sizes, uses, densities and other elements set forth in the Scope of
Development, which Developer shall Develop and Cause Construction on the Site in accordance
with the Agreement.
In the event that Phase 2 of the EXPO Light Rail Project is not completed
or is not in operation on or prior to the Closing, the Comprehensive Plan shall include the
approval by the City, in its sole discretion, of (a) an off-site parking plan or (b) an alternative
mechanism such as alternative parking facility improvements, stacked and valet parking or
automated parking, such that in any case all of the parking requirements for the entire Project are
satisfied as a part of the Project Entitlements in effect at time the Closing is scheduled to occur in
the Schedule of Performance.
Developer acknowledges that the City has not agreed to or endorsed any
of the foregoing options, and that such options shall be subject to approval of the City, in its sole
and absolute discretion, pursuant to the Project Entitlements and may be subject to the
requirement for recordation of covenants on the Site (which covenants shall be deemed included
within the Site Approved Condition of Title) and other properties.
The Project shall be developed such that the Project will meet the
requirements to qualify for LEED certification from the U.S. Green Building Council under the
Leadership in Energy and Environmental Design Green Building Rating System for New
Construction and Major Renovations (LEED-NC) (Version 2.2), provided that Developer will
not be required to actually apply for such certification.
All Project concepts shall comply with the CalGreen requirements as
mandated by the City, and should incorporate sustainable development principles as required by
the Project Entitlements.
The Project shall be developed consistent with the Scope of Development
(Attachment No. 3) which is based on and reflects (i) the Request for Proposals issued by the
City on , (ii) Developer’s Response to Request for Proposals dated January 27,
2012, (iii) the Redevelopment Plan, and (iv) the PD Zone Requirements.
As part of its development of the Site and the Improvements, Developer
shall comply with the provisions of the Art in Public Places Program and be responsible for
either paying the In Lieu Public Art Fee in the amount required by the Art in Public Places
Program and/or providing on-Site artwork equal in value to the amount required by the Art in
Public Places Program, in accordance with the terms and conditions set forth in the Art in Public
Attachment No. 1
57Places Program and the Comprehensive Plan approved by the City pursuant to the PD Zone
Requirements. If Developer chooses to satisfy the Art in Public Places Program by paying the In
Lieu Public Art Fee in accordance with the Art in Public Places Program, Developer shall submit
payment of the In Lieu Public Art Fee to the City by the Close of Escrow. Nothing contained in
this Section 401.1 shall be deemed to entitle Developer to any City approval necessary in
connection with the requirements of the Art in Public Places Program, or waive any applicable
City requirements relating thereto. Nothing in the Agreement shall obligate the City to
contribute any funds toward artwork on the Project.
401.2 PD Zone Requirements
On or before the date set forth in the Schedule of Performance, Developer
shall submit to the City all plans, drawings and other submittals required for the Project in
accordance with the PD Zone Requirements, including Developer’s Comprehensive Plan
submittals under the PD Zoning. Developer shall diligently and in good faith take all necessary
steps and expeditiously submit all necessary documents, drawings and plan revisions and pursue
the approval by the City of such PD Zoning submittals and the approval of Project Entitlements
consistent with the procedures set forth in applicable provisions of the Culver City Municipal
Code, so that Developer is able to commence and complete the construction of the Improvements
on a schedule consistent with the Schedule of Performance.
401.3 Consultation and Coordination
During the preparation of the drawings and other submittals required for
the Project in accordance with the PD Zone Requirements, the City and Developer shall hold
regular progress meetings to coordinate the preparation of, submission to, and review of the
drawings by the City. The staff of the City and Developer shall communicate and consult
informally as frequently as is necessary to ensure that the final submittal of any documents to the
City can receive prompt and thorough consideration.
401.4 Defects in Plans
The City shall not be responsible either to Developer or to third parties in
any way for any defects in the drawings, nor for any structural or other defects in any work done
according to the approved drawings approved by the City pursuant to the PD Zone Requirements
or Plan Check. Developer hereby waives and releases any claim it may have against the City or
and the Successor Agency or their respective officers, employees, agents, representatives and
volunteers, for any monetary damages or compensation as a result of defects in the drawings,
including without limitation the violation of any laws, and for defects in any work done
according to the approved drawings. Developer makes such release with full knowledge of Civil
Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release,
if such Section 1542 is applicable. Section 1542 of the Civil Code provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Attachment No. 1
58 Developer hereby agrees to indemnify and hold harmless the City, the
Successor Agency and their respective Representatives for any Losses and Liabilities (including
reasonable attorneys’ fees and costs) incurred as a result of third party claims of defects in the
Project plans, design or drawings, including without limitation the violation of any laws, and for
defects in any structural or other work performed by or on behalf of Developer in designing or
constructing the Project.
402. [INTENTIONALLY OMITTED]
403. Permits
Subject to the provisions of the immediately following paragraph, before
commencement of the construction of the Improvements or other work upon the Site, Developer
shall, at its own expense, secure or cause to be secured any and all permits and approvals which
may be required by the City or any other applicable governmental agency for the construction of
the Improvements. Developer shall, without limitation, apply for and secure the following, and
pay all costs, charges and fees associated therewith: all permits and fees required by the City, the
City of Los Angeles, LACMTA, the California Department of Transportation, the County of Los
Angeles, and all other governmental agencies with jurisdiction over the Improvements and the
Site.
To the extent permitted by applicable provisions of the Culver City Municipal
Code, Developer may, following the Closing, request the issuance of grading and excavation
permits by the City and may commence grading and excavation activities pursuant to such
permits prior to the completion of the plan check required for the issuance of building permits for
the construction of the Improvements, provided, however, that the City’s Director of Community
Development has first approved in writing a Restoration Plan under which (i) Developer will be
obligated to restore the Site to the condition it was in prior to the commencement of such
excavation and grading work in the event for any reason the building permits are not obtained by
Developer to proceed with the construction of the Improvements within the times required by the
Schedule of Performance, and (ii) Developer will prior to the commencement of such excavation
and grading work, post a letter of credit in a form reasonably satisfactory to the Director of
Community Development or other security reasonably acceptable to the Director of Community
Development securing the performance of Developer’s obligations under the Restoration Plan in
an amount equal to the estimate of the cost of such restoration as reasonably determined by the
Director of Community Development.
The City staff will work cooperatively with Developer to assist in coordinating
the expeditious processing and consideration of any additional necessary permits, entitlements
and approvals. However, the execution of the Agreement by the City does not constitute the
granting of or a commitment to obtain any required land use permits, entitlements or approvals
required by the City, nor does it affect in any way the exercise of the police power by the City as
permitted by applicable law. This Agreement is not a Development Agreement pursuant to
Government Code Sections 65864 et seq. or any other similar statutes.
Attachment No. 1
59404. Schedule of Performance
Developer shall submit all drawings, commence and substantially complete all
construction of the Improvements, and satisfy all other obligations and conditions of the
Agreement within the times established therefore in the Schedule of Performance.
405. Project Costs
The Project Costs of developing the Site and designing and constructing the
Project, including any off-site or on-site improvements required by the City in connection
therewith, shall be the responsibility of Developer, without any cost to City, except as
specifically and expressly set forth in the Agreement as an obligation of the City.
Developer shall Develop and Cause Construction of the Improvements to
Completion and shall fund, without any cost to the City, all of the cost of planning, designing,
developing and constructing all of the Improvements, in conformance with the approved Plans
and Schematic Drawings.
406. Construction Budget; Construction Loan
By the deadline specified in the Schedule of Performance, Developer shall submit
to the City a draft Construction Loan for financing the acquisition of the City Parcels and the
Agency Parcels, the construction of the Improvements and other costs of development of the
Site. In connection with submission of the Construction Loan, Developer shall submit to and
obtain the City’s written approval (which such approval shall not be unreasonably withheld or
delayed) of a construction budget, showing the projected predevelopment and development costs
of the Improvements and a sources and uses statement showing that the projected funding
sources will be available as needed to fund all such projected costs for the Project at the time
incurred and that any permanent financing shall be sufficient in amount to repay the Construction
Loan. The City shall approve or disapprove the Construction Loan with the time period set forth
on the Schedule of Performance, which such approval shall not be unreasonably withheld or
delayed.
The Construction Loan shall be consistent with the terms and provisions of the
Agreement and shall provide, among other matters, that a copy of all change orders and
construction draw requests must be provided to the City Manager concurrently with their
submittal to the Construction Lender. Prior to execution of any final Construction Loan
documents by Developer, Developer shall secure the City’s approval of the terms and conditions
of those Construction Loan documents, which approval shall be limited to and only for the
purpose of assuring compliance of the Construction Loan documents with the requirements of
the Agreement and the Construction Contract. The City shall approve or disapprove said
Construction Loan documents (which such approval shall not be unreasonably withheld or
delayed). Concurrent with any disapproval, the City shall inform Developer in writing of the
reasons for such disapproval.
The Construction Loan shall be made by an Institutional Lender and secured by
Developer’s interest in the Site and the Improvements to be constructed thereon and such other
Attachment No. 1
60collateral and/or credit enhancement as needed. The Construction Loan documents shall include
such other matters as reasonably requested by the City, including, without limitation, the right to
notice of default and the right (but not the obligation) to cure such default and assume Developer
obligations and rights under the Construction Loan.
In no event shall the Construction Loan be cross defaulted with any other loan
secured by any other property of Developer other than the Site. Developer shall draw upon and
utilize the proceeds of the Construction Loan only for financing the Project costs for the Site, and
the Construction Loan shall be disbursed and applied in accordance with the approved
construction budget, as it may be amended from time to time upon notice to the City.
The City approval of the Construction Loan shall not constitute a waiver by the
City of any breach or violation of the Agreement that is a result of acts that are or purport to be
in compliance with or in furtherance of said Construction Loan. The City shall not be obligated
to close Escrow unless it has received written confirmation from the construction lender that the
Construction Loan is in a position to be recorded concurrently therewith.
407. Construction Contract
By the deadline specified therefore in the Schedule of Performance and prior to
the execution of any final contract, Developer agrees to deliver to the City, for its review and
approval, a Construction Contract(s) for all of the Improvements, which Construction Contract
shall obligate a reputable and financially responsible general contractor(s) (“General
Contractor”), capable of being bonded and licensed in California and with experience in
completing the type of Improvements contemplated by the Agreement, to commence and
complete the construction of those Improvements in accordance with the Agreement and at the
price stated therein.
Each Construction Contract shall give the City the right, but not the obligation, to
cure defaults thereunder and to assume Developer’s obligations and rights under the contract;
provided, that such right to cure and assume that contract shall be subject to the rights, if any, of
Developer’s Construction Lender with respect to such Construction Contract. In addition, each
Construction Contract shall provide, among other matters, that all change orders and all
construction draw requests must be provided to the City Manager concurrently with their
submittal to the Construction Lender. Further, each Construction Contract shall set forth a
reasonably detailed schedule for completion of each stage of construction.
The City shall approve or disapprove said draft Construction Contract by the date
set forth in the Schedule of Performance, which such approval shall not be unreasonably
withheld or delayed. The City approval of a Construction Contract shall not constitute a waiver
by the City of any breach or violation of the Agreement that is a result of acts that are or purport
to be in compliance with or in furtherance of said Construction Contract. The City shall not be
obligated to close Escrow until it has approved the Construction Contract and Developer and the
General Contractor have signed the Construction Contract.
In the event of any disapproval of the draft Construction Contract, the City shall,
concurrently with delivery of the notice of such disapproval to Developer, inform Developer in
writing of the reasons for disapproval and the required changes to the draft Construction
Attachment No. 1
61Contract. Developer and General Contractor shall have twenty (20) Days from receipt of any
notice from the City specifying required changes (“Construction Contract Disapproval
Notice”), within which to notify the City that Developer agrees to negotiate with the General
Contractor to make such changes or that Developer objects to any such requested changes. If
Developer notifies the City within said twenty (20) Day period of its objections to any such
requested changes, then the City and Developer shall meet at a mutually acceptable time to
discuss their differences within fifteen (15) Days after Developer gives such notice. Following
such meeting, Developer shall use commercially reasonable efforts to cause the General
Contractor to revise the Construction Contract and resubmit it for approval to the City as
required by the Agreement by the later of (i) fifteen (15) Days after receipt of the Construction
Contract Disapproval Notice, or (ii) fifteen (15) Days after such meeting, unless the nature of
such changes requires a longer period of time, in which case Developer shall resubmit said
revised Construction Contract as soon as possible, and, in any case, no later than thirty (30) Days
after receipt of the Construction Contract Disapproval Notice. Any such resubmissions shall be
approved or disapproved and revised within the times set forth herein with respect to the initial
submission, and such resubmissions shall not extend any of the outside dates set forth in the
Schedule of Performance. If, notwithstanding compliance with the above procedure, Developer
fails to provide the City with a Construction Contract acceptable to the City within the time
provided in the Schedule of Performance (or within such additional time as the City shall allow),
then either party may thereafter elect to terminate the Agreement.
408. Rights of Access
Prior to the issuance of the Release of Construction Covenants, for purposes of
assuring compliance with the Agreement, representatives of the City shall have the right of
access to the Site, without charges or fees, at normal construction hours during the period of
construction for the purpose of ensuring compliance with the Agreement, including but not
limited to, the inspection of the work being performed in the construction of the Improvements
so long as the City representatives comply with all safety rules and, at Developer’s option, are
escorted by a representative of Developer. The City (or its Representatives) shall, except in
emergency situations, notify Developer prior to exercising its rights pursuant to this Section.
The City shall indemnify, defend and hold harmless Developer for any Losses and Liabilities
(including, without, limitation, attorneys’ fees and costs) arising out of any of the foregoing
inspection activities, except those arising out of the negligence or misconduct of Developer or its
employees, officers, agents or representatives.
409. Compliance with Laws
Developer shall carry out the design and construction of the Project in conformity
with all applicable Governmental Requirements, including without limitation all Labor Laws, PD
Zone Requirements, including the Comprehensive Plan approved by the City pursuant thereto,
and applicable building, plumbing, mechanical and electrical codes, and all other provisions of
the Culver City Municipal Code, and all applicable disabled and handicapped access
requirements (including without limitation the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section
11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.). The Agency
Attachment No. 1
62makes no representation or warranty to Developer regarding the applicability of any Labor Laws
to the Project.
409.1 Prevailing Wages
(a) Developer hereby agrees to carry out development, construction
(as defined by applicable law) and operation of the Improvements on the Site, including, without
limitation, any and all public works (as defined by applicable law), in conformity with all
applicable Federal and State labor laws, including, without limitation, the payment of State
prevailing wages, to the extent required by law.
(b) Developer hereby expressly acknowledges and agrees that neither
City nor Successor Agency has ever previously affirmatively represented to Developer or its
contractor(s) for the improvements in writing or otherwise, in a call for bids or otherwise, that
the work to be covered by the bid or contract is not a “public work,” as defined in Section 1720
of the Labor Code. Developer hereby agrees that Developer shall have the obligation to provide
any and all disclosures, representations, statements, rebidding, and/or identifications which may
be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or
amended from time to time, or any other provision of law, to the extent applicable. Developer
hereby agrees that Developer shall have the obligation to provide and maintain any and all bonds
to secure the payment to contractors (including the payment of wages to workers performing any
public work) which may be required by the Civil Code, Labor Code Section 1781, as the same
may be enacted, adopted or amended from time to time, or any other provision of law, to the
extent applicable. Developer hereby agrees that Developer shall have the obligation, at
Developer’s sole cost, risk and expense, to obligate any party as may be required by Labor Code
Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or
any other provision of law, to the extent applicable. Developer shall indemnify, protect, defend
and hold harmless the Successor Agency, City and their respective officers, employees,
contractors and agents, with counsel reasonably acceptable to Agency and City, from and against
any and all loss, liability, damage, claim, cost, expense, and/or “increased costs” (including labor
costs, penalties, reasonable attorneys’ fees, court and litigation costs, and fees of expert
witnesses) which, in connection with the development, construction (as defined by applicable
law) and/or operation of the Improvements, including, without limitation, any and all public
works (as defined by applicable law), results or arises in any way from any of the following: (1)
the noncompliance by Developer of any applicable local, state and/or federal law, including,
without limitation, any applicable federal and/or state labor laws (including, without limitation, if
applicable, the requirement to pay state prevailing wages); (2) the implementation of Sections
1726 and 1781 of the Labor Code, as the same may be enacted, adopted or amended from time to
time, or any other similar law; (3) failure by Developer to provide any required disclosure,
representation, statement, rebidding and/or identification which may be required by Labor Code
Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or
any other provision of law; (4) failure by Developer to provide and maintain any and all bonds to
secure the payment to contractors (including the payment of wages to workers performing any
public work) which may be required by the Civil Code, Labor Code Section 1781, as the same
may be enacted, adopted or amended from time to time, or any other provision of law; and/or (5)
failure by Developer to obligate any party as may be required by Labor Code Sections 1726 and
Attachment No. 1
631781, as the same may be enacted, adopted or amended from time to time, or any other provision
of law.
(c) It is agreed by the parties that, in connection with the development,
construction (as defined by applicable law) and operation of the Improvements, including,
without limitation, any public work (as defined by applicable law), Developer shall bear all risks
of payment or nonpayment of state prevailing wages and/or the implementation of Labor Code
Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time,
and/or any other provision of law, to the extent applicable. “Increased costs” as used in this
Section shall have the meaning ascribed to it in Labor Code Section 1781, as the same may be
enacted, adopted or amended from time to time.
(d) The foregoing indemnity shall survive termination of this Agreement and
shall continue after recordation of the Release of Construction Covenants.
410. Nondiscrimination in Employment
Developer certifies and agrees that all persons employed or applying for
employment by it and all general contractors, subcontractors, bidders and vendors, are and will
be treated equally by it without regard to, or because of race, color, religion, ancestry, national
origin, sex, age, pregnancy, childbirth or related medical condition, medical condition (cancer
related) or physical or mental disability, and in compliance with Title VII of the Civil Rights Act
of 1964, 42 U.S.C. Section 2000, et seq., the Federal Equal Pay Act of 1963, 29 U.S.C. Section
206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621, et seq., the
Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b, et seq., 42 U.S.C.
Section 1981, the California Fair Employment and Housing Act, Cal. Government Code Section
12900, et seq., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government
Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and
all other antidiscrimination laws and regulations of the United States and the State of California
as they now exist or may hereafter be amended. Developer shall allow representatives of the
City access to its employment records related to the Agreement during regular business hours to
verify compliance with these provisions when so requested by the City.
411. Levies and Attachments on Site
Developer shall remove or have removed any levy or attachment made on Site or
any part thereof, or assure the satisfaction thereof within a reasonable time other than those
levies or attachments imposed as a result of City activities or Successor Agency activities.
Nothing herein shall be deemed to prohibit Developer from contesting the validity or amount of
any levy or attachment nor to limit the remedies available to Developer with respect thereto.
412. Financing of the Improvements
412.1 No Encumbrances Except Mortgages and Deeds of Trust
Mortgages and deeds of trust through an Institutional Lender for the
purpose of securing loans of funds are to be used for (i) financing the acquisition,
Attachment No. 1
64predevelopment or development of the Site or other costs of development of the Site, (ii)
financing the construction of the Improvements (including architecture, engineering, legal, and
related direct costs as well as indirect hard and soft costs such as real property taxes, insurance
premiums, closing costs, loan carrying costs, costs of financing and overhead) on or in
connection with the Site, or (iii) any other purposes necessary and appropriate in connection with
the Project under the Agreement; and shall be permitted before issuance of the Release of
Construction Covenants only with the City’s prior written approval in accordance with Section
206. The City shall cooperate with Developer and will in good faith consider all reasonable
requests by an Institutional Lender to modify the Agreement. Any mortgage or deed of trust or
other grant of a security interest in the Site shall constitute a Transfer for purposes of the
Agreement. The words “mortgage” and “trust deed” solely as used in this Section 414.1 shall
include sale and lease-back and other means of financing which involve the granting of a
security interest.
412.2 Holder Not Obligated to Construct Improvements
The holder of any mortgage or deed of trust authorized by the Agreement
shall not be obligated by the provisions of the Agreement to construct or complete the
Improvements or any portion thereof, or to guarantee such construction or completion; nor shall
any covenant or any other provision in the Agreement be construed so to obligate such holder.
Nothing in the Agreement shall be deemed to construe, permit or authorize any such holder to
devote the Site to any uses or to construct any improvements thereon, other than those uses or
Improvements provided for or authorized by the Agreement.
412.3 Default Notice to Mortgagee or Deed of Trust Holders; Right to Cure
With respect to any mortgage or deed of trust granted by Developer as
provided herein, whenever the City may deliver any notice or demand to Developer with respect
to any material breach or default by Developer, the City shall at the same time deliver to each
holder of record of any mortgage or deed of trust authorized by its Agreement a copy of such
notice or demand. Each such holder shall (insofar as the rights granted by the City are
concerned) have the right, at its option, within sixty (60) Days after the expiration of all cure
periods available to Developer but in no event longer than one hundred eighty (180) Days after
receipt of notice hereunder, to cure or remedy or commence to cure or remedy and thereafter to
pursue with due diligence the cure or remedy of any such default. Any cost incurred by such
holder in curing or remedying such default may be added to the mortgage debt and the lien of its
mortgage. If such default shall be a default which can only be remedied or cured by such holder
upon obtaining possession of the Site or any portion thereof and such holder promptly
commences and diligently prosecutes efforts to obtain possession with diligence through a
receiver or otherwise, such holder shall have until sixty (60) Days after obtaining possession to
cure such default but in no event longer that three hundred sixty-five (365) Days after receipt of
notice hereunder. Notwithstanding anything to the contrary contained herein, in the case of a
default which cannot with diligence be remedied or cured within sixty (60) Days, such holder
shall have such additional time as reasonably necessary to remedy or cure such default with
diligence but in no event longer that three hundred sixty-five (365) Days after receipt of notice
hereunder; provided, further, such holder shall not be required to remedy or cure any uncurable
Attachment No. 1
65default of Developer (such as an unauthorized attempted assignment or the failure to meet a
deadline).
Nothing contained in the Agreement shall be deemed to permit or
authorize such holder to undertake or continue the construction or completion of the
Improvements, or any portion thereof (beyond the extent necessary to conserve or protect the
improvements or construction already made) without first having expressly assumed Developer’s
obligations to the City by written agreement reasonably satisfactory to the City. The holder in
that event shall only be liable or bound by Developer’s obligations hereunder during the period
that the holder is in possession of such portion of the Site in which the holder has an interest and,
notwithstanding anything to the contrary contained in the Agreement, shall only be liable to the
extent of its interest in such property and the improvements owned by it thereon. In addition, the
holder, in that event, must agree to complete, in the manner provided in the Agreement, the
improvements to which the lien or title of such holder relates. Any such holder properly
completing such improvement shall be entitled, upon compliance with the requirements of
Section 413 of the Agreement, to a Release of Construction Covenants.
It is understood that a holder shall be deemed to have satisfied the sixty
(60) Day time limit set forth above for commencing to cure or remedy a Developer default which
requires title and/or possession of the Site (or portion thereof) if and to the extent any such
holder has within such sixty (60) Day period commenced proceedings to obtain title and/or
possession and thereafter the holder diligently pursues such proceedings to completion and cures
or remedies the default within three hundred sixty-five (365) Days of receipt of notice hereunder.
All rights and obligations of a lender or holder pursuant to the Agreement shall also accrue to
any purchaser, assignee or successor of a lender or holder upon acquisition of title to any portion
of the Site by such purchaser, assignee or successor pursuant to a judicial or nonjudicial
foreclosure or a deed in lieu of foreclosure, or pursuant to a conveyance from a holder by deed in
lieu of foreclosure. In the event of such conveyance to a purchaser, assignee or successor, then
the City agrees that it shall not unreasonably withhold, condition or delay its approval of further
extensions of time for performance of Developer’s obligations under the Agreement as
appropriate but in no event for a period of time longer than three hundred sixty-five (365) Days
to permit such purchaser, assignee or successor to obtain possession of such property and enter
into contracts for the construction of improvements to complete the development of such
property.
Breach of any of the covenants, conditions, restrictions, or reservations
contained in the Agreement shall not defeat or render invalid the lien of any mortgage or deed of
trust made in good faith and for value as to the Site or any interest therein, whether or not said
mortgage or deed of trust is subordinated to the Agreement, but unless otherwise herein
provided, the terms, conditions, covenants, restrictions and reservations of the Agreement shall
be binding and effective against the holder and any owner of the Site or any portion thereof,
whose title thereto is acquired by foreclosure, trustee’s sale, or otherwise.
No purported modification, amendment and/or termination of the
Agreement affecting the rights of a holder shall be binding upon any holder holding a mortgage
or deed of trust from and after the date of recordation of such mortgage or deed of trust unless
and until the written consent of such holder is obtained.
Attachment No. 1
66412.4 Failure of Holder to Complete Improvements
In any case where, sixty (60) Days after the holder of any mortgage or
deed of trust creating a lien or encumbrance upon the Site or any part thereof receives a notice
from the City of a default by Developer in completion of construction of any of the
Improvements under the Agreement, and such holder has not exercised the option to construct
within the time period set forth in Section 412.3, or if it has exercised the option but has
defaulted hereunder and failed to timely cure such default, the City may, upon thirty (30) Days
prior written notice to holder, purchase the mortgage or deed of trust by payment to the holder of
the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all
other sums and advances secured by the mortgage or deed of trust. If the ownership of the Site
or any part thereof has vested in the holder and if such holder has not exercised its right to
assume the obligations hereunder and commence construction activities, the City, if it so desires,
may purchase such ownership interest from the holder upon payment to the holder of an amount
equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less collection and application of rentals and other income received during
foreclosure proceedings);
(b) All expenses with respect to foreclosure including reasonable
attorneys’ fees;
(c) The expenses, if any (inclusive of general overhead), incurred by
the holder as a direct result of the subsequent management of the Site or part thereof (including
without limitation, insurance premiums and real property taxes);
(d) The costs of any improvements made by such holder;
(e) An amount equivalent to the interest at the applicable rate
(including, without limitation, interest at the default rate to the extent provided for in the
applicable loan documents) that would have accrued on the aggregate of the amounts described
in Section (a) from and after the time title became vested in holder and in Sections (b) through
(d), inclusive, had all such amounts become part of the mortgage or deed of trust debt and such
debt had continued in existence to the date of payment by the City; and
(f) Any late payment fees and/or prepayment charges imposed by the
lender pursuant to its loan documents.
412.5 Right of City and Successor Agency to Cure Mortgage or Deed of
Trust Default
In the event of a material, uncured mortgage or deed of trust default or
breach by Developer prior to the issuance of the Release of Construction Covenants (unless
Developer is contesting such default in good faith), Developer shall immediately deliver to the
City a copy of such mortgage holder’s notice of default. If the holder of any mortgage or deed of
trust has not exercised its option to construct within the time periods set forth in Section 412.3,
the City shall have the right, but not the obligation, upon ten (10) Days’ Notice to Developer, to
Attachment No. 1
67cure the default. In such event, the City shall be entitled to reimbursement from Developer of all
proper direct and actual out-of-pocket costs and expenses incurred by the City in curing such
default. The City shall also be entitled to a lien upon the Site to the extent of such costs and
disbursements; provided that any such lien shall be junior and subordinate to the mortgages,
deeds of trust or any other security interests granted in accordance with this Section 412.5 and
the City Manager, as a condition to the imposition of its lien, shall execute subordinate
agreements to the extent required by the holder of any such mortgage, deed of trust or other
security interests.
413. Release of Construction Covenants
Within fifteen (15) days of receipt by the City of Notice from Developer that the
construction of the Improvements has been completed in conformity with the Agreement, the
City shall furnish Developer with the Release of Construction Covenants. The Release of
Construction Covenants shall be a conclusive determination of satisfactory completion of the
construction of the Improvements and the Release of Construction Covenants shall so state. Any
party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Site
shall not (because of such ownership, purchase, lease or acquisition) incur any construction
obligation under the Agreement.
The Release of Construction Covenants shall be in such form as to permit it to be
recorded against the Site in the Official Records.
The City shall not unreasonably withhold a Release of Construction Covenants.
If the City refuses or fails to furnish the Release of Construction Covenants, after written request
from Developer, the City shall, within ten (10) days of written request therefore, provide
Developer with a written statement of the reasons the City refused or failed to furnish the
Release of Construction Covenants. The statement shall also contain the City’s opinion of the
actions Developer must take to obtain the Release of Construction Covenants. If the reason for
such refusal is confined to the immediate unavailability of specific items or materials or
otherwise constitutes minor unfinished work for which a cost can be specified, the City will issue
its Release of Construction Covenants upon the posting of a bond, letter of credit or cash security
by Developer with the City in an amount representing one hundred fifty percent (150%) of the
fair value of the work not yet completed or other evidence reasonably satisfactory to the City
assuring the City that Developer will pay for and complete the same. If the reason for such
refusal includes other uncompleted obligations of Developer under the Agreement which can
otherwise be provided for to the reasonable satisfaction of the City, the City will issue its Release
of Construction Covenants upon the City’s approval of such measures as will reasonably satisfy
the City that such obligations will be completed. Even if the City shall have failed to provide
such written statement within such ten (10) day period, Developer shall not be deemed entitled to
the Release of Construction Covenants. The Release of Construction Covenants shall not
constitute evidence of compliance with or satisfaction of any obligation of Developer to any
holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the
Improvements, or any part thereof. The Release of Construction Covenants is not a notice of
completion as referred to in Section 3093 of the California Civil Code.
Attachment No. 1
68414. Bodily Injury and Property Damage Indemnification
Developer agrees to and shall defend, release, indemnify and hold harmless the
City, the Successor Agency and their respective Representatives from and against any and all
Losses and Liabilities arising from or as a result of the death of any person or any accident,
injury, loss, or damage whatsoever caused to any person or to the property of any person which
shall occur directly or indirectly as a result of or in connection with the acts of or on behalf of
Developer in connection with the development of the Site, the construction of the Improvements
and operation of the Improvements, whether such damage shall occur or be discovered before or
after termination of the Agreement.
This indemnification provision supplements and in no way limits the scope of the
indemnification set out elsewhere in the Agreement. The indemnity obligation of Developer
under this Section shall survive the expiration or termination, for any reason, of the Agreement.
415. Indemnification
To the full extent permitted by law, Developer shall indemnify, defend and hold
harmless the City, the Successor Agency, and their respective Representatives, from and against
any and all Losses and Liabilities, where the same arise out of, are a consequence of, or are in
any way attributable to, in whole or in part, to: (i) Developer’s compliance with or failure to
comply with all applicable Governmental Requirements, including all applicable Labor Laws;
(ii) defects in the design of the Project, including (without limitation) the violation of any
Governmental Requirements, and for defects in any work done according to the City approved
plans; or (iii) any breach of or any other performance or act or failure to perform or act pursuant
to the Agreement by Developer, or by any individual or entity that Developer shall bear the legal
liability thereof, including but not limited to, officers, agents, employees, contractors or
subcontractors of Developer.
Without affecting the rights of the City, the Successor Agency, and their
respective Representatives, under any provisions of the Agreement, Developer shall not be
required to indemnify and hold harmless the City, the Successor Agency, and their respective
Representatives, for the percentage of liability attributable to the active negligence or intentional
misconduct of the City, the Successor Agency, and their respective Representatives, provided
such active negligence or intentional misconduct is determined by agreement between the Parties
or by the findings of a court of competent jurisdiction.
Developer agrees to be fully responsible to the City, the Successor Agency, or
their respective Representatives, and defend, indemnify and hold harmless such parties for any
and all Losses and Liabilities resulting from any acts of each and every contractor or any other
person or entity involved by, for, with or on behalf of Developer in the performance of the
Agreement.
In the event that any claim or legal action is brought against Developer and/or the
City and/or the Successor Agency pertaining to an act or failure of Developer to act for which
the City or the Successor Agency is indemnified hereunder or pertaining to the compliance of the
construction, alteration, demolition, installation or repair of the Improvements with any Labor
Laws, Developer shall defend itself and, without cost to the City or the Successor Agency,
Attachment No. 1
69defend, indemnify and hold the City and the Successor Agency harmless therefrom. Upon
Developer’s failure to defend, indemnify and hold the City and the Successor Agency harmless
from such claims, the City and the Successor Agency shall be entitled to recover from Developer
all of the City’s and the Successor Agency’s costs and expenses incurred on account of such
failure, including (but not limited to) reasonable attorneys’ fees and costs. Each Party shall
promptly notify the other Party of the filing of any such claim or action and cooperate with the
defense thereof. Developer shall not settle or compromise the defense of such claim or action on
behalf of the City or the Successor Agency, or permit a default judgment to be taken against the
City or the Successor Agency, without the prior written approval of the City or the Successor,
which shall not unreasonably be withheld.
Failure of the City, the Successor Agency, or their respective Representatives to
monitor compliance with these requirements imposes no additional obligations on the City, the
Successor Agency, or their respective Representatives and will in no way act as a waiver of any
rights hereunder. This obligation to indemnify and defend the City, the Successor Agency, or
their respective Representatives as set forth herein is binding on the successors, assigns or heirs
of Developer and shall survive the expiration or termination of the Agreement or this
Section 415.
416. Disclaimer of Responsibility of City
The City neither undertakes nor assumes nor will have any responsibility or duty
to Developer or to any third party to review, inspect, supervise, pass judgment upon or inform
Developer or any third party of any matter in connection with the development or construction of
the Improvements on the Site, whether regarding the quality, adequacy or suitability of the plans,
whether or not approved by the City, any labor, service, equipment or material furnished to the
Site, any person furnishing the same, or otherwise. Developer and all third parties shall rely
upon its or their own judgment regarding such matters, and any review, inspection, supervision,
exercise of judgment or information supplied to Developer or to any third party by the City in
connection with such matter is for the public purpose of redeveloping the Site, and neither
Developer (except for the purposes set forth in the Agreement) nor any third party is entitled to
rely thereon. The City shall not be responsible for any of the work of construction, improvement
or development of the Site or any part of the Project relating to the Site.
500. COVENANTS AND RESTRICTIONS
501. Covenant Regarding Specific Uses
Developer, for itself and on behalf of its successors and assigns to all or any
portion of the Site, or any interest therein, covenants and agrees to (i) construct the Project as
required by this Agreement; (ii) devote the Site to the uses required by, and use the Site and
conduct all activities undertaken pursuant to the Agreement in conformity with, all applicable
provisions of the Redevelopment Plan, the Comprehensive Plan approved by the City pursuant to
the PD Zone Requirements, the Project Entitlements, all conditions of approval of the Project
Entitlements, the Culver City Municipal Code and any other applicable Governmental
Requirements; (iii) use such property in conformity with and abide by the covenants and
restrictions set forth in the Successor Agency Grant Deed and the City Grant Deed attached
Attachment No. 1
70hereto respectively as Attachments No. 5-A and 5-B; and (iv) perform all obligations of
Developer the set forth in the Participation Agreement (Attachment No. 7).
502. Covenants Regarding Maintenance
Developer, for itself and on behalf of its successors and assigns to all or any
portion of the Site, or any interest therein, covenants and agrees to (i) maintain the Site and all
Improvements thereon, including landscaping, lighting and signage, in good condition, free of
debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan and with
all applicable provisions of the Culver City Municipal Code and in accordance with the
“Maintenance Standards,” as hereinafter defined; (ii) contract with and hire licensed and
qualified personnel or contractors to perform the maintenance work, including the provision of
labor, equipment, materials, support facilities, and any and all other items necessary to comply
with the requirements of the Agreement; (iii) obtain the prior written approval of the City of any
declaration of easements and restrictions or any reciprocal easement agreement entered into by
and between the Developer and the owner or owners of other privately owned portions of the
Site, and obtain the prior written approval of the City of any amendment to any such declaration
or reciprocal easement agreement; and (iv) comply with the following standards (“Maintenance
Standards”) and to cause its contractors and subcontractors to adhere to the Maintenance
Standards:
(a) The Maintenance Standards shall apply to all buildings, signage, lighting,
landscaping, irrigation of landscaping, architectural elements identifying the Site and any and all
other common area of the Improvements on the Site. The Site shall be maintained in
conformance and in compliance with the approved building permit drawings, and reasonable
maintenance standards for similar, neighboring structures, including but not limited to painting
and cleaning of all exterior surfaces and other exterior facades comprising all private
improvements and public improvements to the curbline. The Site shall be maintained in good
condition and in accordance with the custom and practice generally applicable to comparable
developments.
(b) Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road
conditions and visibility, and irrigation coverage; replacement, as needed, of all plant materials;
control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking
for support of trees.
(c) Clean up maintenance shall include, but not be limited to: maintenance of
all sidewalks, paths and other paved areas in clean and weed free condition; maintenance of all
such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal
of all trash, litter and other debris from improvements and landscaping prior to mowing;
clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris
are properly disposed of by maintenance workers.
Attachment No. 1
71The City agrees to notify Developer in writing if the condition of the Site does not
meet with the Maintenance Standards specified herein and to specify the deficiencies and the
actions required to be taken by Developer to cure the deficiencies. Upon notification of any
maintenance deficiency, Developer shall have thirty (30) Days within which to correct, remedy
or cure the deficiency, unless such deficiency cannot be reasonably corrected, remedied or cured
within such period, in which case, such period shall be extended for such time as is necessary to
accomplish the same provided that Developer is diligently pursuing such correction, remedy or
cure. If the written notification states the problem is urgent relating to the public health and
safety of the City, then Developer shall have forty-eight (48) hours to commence curing the
problem. In the event Developer does not maintain the Site in the manner set forth herein and in
accordance with the Maintenance Standards specified herein, the City shall have, in addition to
any other rights and remedies hereunder, the right to maintain the Site, or to contract for the
correction of such deficiencies, after written notice to Developer, and Developer shall be
responsible for the payment of all such out of pocket third party costs incurred by the City.
503. Covenants Regarding Nondiscrimination
The foregoing covenants shall run with the land.
Developer covenants by and for itself and any successors in interest that there
shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site or any part thereof, including
without limitation the Retail and Restaurant Space and the office space of the Project, nor shall
Developer itself or any person claiming under or through them establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The
foregoing covenants shall run with the land.
Developer shall refrain from restricting the rental, sale or lease of the Site or any
part thereof on the basis of race, color, religion, sex, marital status, ancestry or national origin of
any person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a) In deeds. “The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land.”
(b) In leases: “The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or through
him or her, and this lease is made and accepted upon and subject to the following conditions:
Attachment No. 1
72That there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy of tenants,
lessees, sublessees, subtenants, or vendees in the premises herein leased.”
(c) In contracts: “There shall be no discrimination against or segregation of,
any person, or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices of discrimination
or segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the premises.”
504. Effect of Violation of this Section
All of the covenants set forth in Sections 501-503, inclusive shall be covenants
running with the land. The City and the Successor Agency are the beneficiaries of the terms and
provisions of the Agreement and of the covenants running with the land, for and in their own
right and for the purposes of protecting the interests of the community and other parties, public
or private, in whose favor and for whose benefit the Agreement and the covenants running with
the land have been provided, without regard to whether the City or Successor Agency has been,
remains or is an owner of any land or interest therein in the Site or in the Project. The City and
the Successor Agency shall have the right, if the Agreement or any covenants herein are
breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such breaches to which it or any other
beneficiaries of the Agreement and any covenants may be entitled. To the extent permitted by
applicable law, Successor Agency shall assign to the City the rights of the Successor Agency to
enforce the covenants set forth in Sections 501-503, inclusive.
The covenants contained in this Section shall remain in effect as follows:
(a) The covenants pertaining to the Improvements as set forth in Section 501,
shall remain in effect for forty-five (45) years, provided, however, that after twenty-five (25)
years, such covenants shall be deemed amended to reflect any changes to the Project
Entitlements that may be approved by the City.
(b) The covenants pertaining to Change in Control of Developer and Transfer,
shall remain in effect for five (5) years following the issuance of the Release of Construction
Covenants for the Project.
(c) The covenants pertaining to maintenance of the Site and all Improvements
thereon, as set forth in Section 502, shall remain in effect for forty-five (45) years, provided,
however, that after twenty-five (25) years, such covenants shall be deemed amended to reflect
any changes to the Project Entitlements that may be approved by the City; and further provided,
Attachment No. 1
73however, that the covenants set forth in Section 502(iii) relating to restrictions and easements
shall remain in effect for ten (10) years following the issuance of the Release of Construction
Covenants for the Project.
(d) The covenants against discrimination, as set forth in Section 503, shall
remain in effect in perpetuity.
600. DEFAULTS, REMEDIES AND TERMINATION
601. Defaults - General
Subject in each case to the extensions of time set forth in Section 706, failure or
delay by either Party to perform any term or provision of the Agreement constitutes a “Default”
under the Agreement.
In addition, each of the following (in each case subject to the extensions of time
set forth in Section 706) shall constitute a Default of Developer hereunder:
(a) Developer materially fails to comply with any provision contained in the
City Documents; or
(b) The delivery to Developer or recordation of any notice of default under the
Construction Loan or other loan documents secured by an interest in the Site prior to the
completion of construction following the expiration of any applicable notice or cure period set
forth therein; or
(c) Construction of the Improvements is not timely commenced, or is
abandoned for a period of three (3) months, or, subject to the provisions of Section 706, any
element of the Improvements is not completed within the time allocated for it in the Schedule of
Performance or the Improvements are not completed by the date set forth therefore in the
Schedule of Performance; or
(d) Construction of the Improvements is halted prior to completion for any
period of thirty (30) consecutive Days for any cause which is not described in Section 706; or
(e) Any required approval, license or permit is withdrawn or suspended, and
the order, withdrawal or suspension remains in effect for a period of thirty (30) consecutive
Days; or
(f) Developer is in default, after the expiration of any applicable notice or
cure periods, under the architecture contract, any engineering contract, the Construction Contract
or any other contract for or pertaining to the construction of the Improvements, and, as a result
thereof, construction of the Project ceases for three (3) months; or
(g) Developer (i) is unable to pay its debts as they become due, or files of a
petition in bankruptcy (or otherwise commences bankruptcy or a similar proceeding), or (ii) has
filed by or against Developer, under any applicable bankruptcy, insolvency or similar law now or
Attachment No. 1
74hereafter in effect, a petition in bankruptcy or other commencement of a bankruptcy or similar
proceeding which petition is not dismissed within 90 days.
The injured Party shall give written Notice of Default to the Party in default,
specifying the default complained of by the injured Party. Except as required to protect against
further damages, and except as otherwise expressly provided in the Agreement, the injured Party
may not institute proceedings against the Party in default until thirty (30) Days after giving such
notice. Failure or delay in giving such notice shall not constitute a waiver of any Default, nor
shall it change the time of Default.
If the Default is not cured or commenced to be cured and thereafter diligently
pursued to completion by the defaulting Party within thirty (30) Days after service of the Notice
of Default as to any monetary default, or within ninety (90) Days after service of the Notice of
Default as to any non-monetary default, such failure shall constitute an “Event of Default” under
the Agreement and the defaulting Party will be liable to the other Party for any damages caused
by the Default and other relief as is afforded by applicable Governmental Requirements. An
Event of Default shall also result hereunder upon the occurrence of any failure or delay of
performance under any other agreement secured by the Site (including, without limitation, the
Construction Loan) and such delay or failure to perform is not remedied within the cure period
set forth in the appropriate governing agreement.
The Agreement may be terminated by the nondefaulting Party upon an Event of
Default, and, in addition, the nondefaulting Party may exercise any other rights and remedies to
which it may be entitled under the law.
602. Institution of Legal Actions
In addition to any other rights or remedies, either Party may institute legal action
to cure, correct or remedy any Default, or to recover damages for any Event of Default, or to
obtain any other remedy consistent with the purpose of the Agreement. To the extent permitted
by law, such legal actions must be instituted in the Superior Court of the County of Los Angeles,
State of California, in an appropriate Municipal Court in that County, or in the Federal District
Court in the Central District of California.
603. Termination by Developer Prior to Closing
In the event that Developer is not in Default and prior to the Closing:
(a) The City does not (or demonstrably cannot) deliver title to any portion of
the City Parcels pursuant to the City Grant Deed in the manner and condition set forth herein on
or before the Outside Closing Date, or
(b) The Successor Agency does not (or demonstrably cannot) deliver title to
any portion of the Agency Parcels pursuant to the Successor Agency Grant Deed in the manner
and condition set forth herein on or before the Outside Closing Date, or
(c) The City and/or the Successor Agency is in Default and has failed to cure
the Default within thirty (30) Days after receipt of Notice of Default, or
Attachment No. 1
75(d) One or more of Developer’s Conditions Precedent to Closing is not
satisfied on or before the Outside Closing Date; or
(e) The Project Entitlement Date has not occurred by the Outside Closing
Date after and despite Developer’s diligent and good faith efforts and due to one or more reasons
beyond the control of Developer;
(f) Developer is unable, after and despite its diligent and good faith efforts
and due to one or more reasons beyond the control of Developer, to obtain the Construction Loan
and any other component of Project financing required as part of the Evidence of Financing
pursuant to Section 314 above;
(g) Developer reasonably determines that due to the presence of any
Hazardous Materials located upon, under, over or from the City Parcels or Agency Parcels, or the
presence of any other environmental conditions or any Governmental Requirements relating
thereto, the costs of remediation would materially increase the cost of the construction and
development of the Improvements for the Developer so as to render the Project infeasible;
provided that the foregoing right to terminate must be exercised by Developer within one
hundred eighty (180) days after the Effective Date; or
(h) A major condition of approval is imposed on any of the Project
Entitlements causing a material increase to the cost of the construction and development of the
Improvements for the Developer so as to render the Project infeasible;
then the Agreement may, at Developer’s option, be terminated by Notice
to the City and the Successor Agency. From the date of the Notice of termination of the
Agreement by Developer to the City and the Successor Agency and thereafter the Agreement
shall be deemed terminated and there shall be no further rights or obligations between the
Parties. Upon such termination by Developer, all monies or documents deposited by any Party
into Escrow shall be returned to the Party making such deposit. If the Agreement is terminated
due to Default of the City and/or the Successor Agency, the City and/or Successor Agency as
applicable shall pay all escrow cancellation costs. If the Agreement is terminated for any other
reason, the Parties shall each pay one-half of the escrow cancellation costs.
604. Termination by City
604.1 Termination Prior to Closing
In the event that the City and the Successor Agency are not in Default and
prior to the Closing:
(a) Developer does not accept title to any portion of the City parcels
and/or the Agency Parcels pursuant to the City Grant Deed or the Successor Agency Grant Deed
in the manner and condition set forth herein on or before the Outside Closing Date, or
(b) Developer is in Default and has failed to cure the Default within
the applicable cure period, or
Attachment No. 1
76 (c) One or more of the City’s Conditions Precedent to Closing is not
satisfied on or before the Outside Closing Date, or
(d) Developer assigns or Transfers or attempts to assign or Transfer
the Agreement (or any rights herein), or sells, Transfers, conveys, assigns, or leases the whole or
any part of the Site (or any portion thereof) or of the Improvements to be constructed thereon,
except for a Permitted Transfer, or undergoes a Change of Control in violation of the Agreement,
and after the City delivers a written demand to Developer to void, cancel, rescind and terminate
such Transfer or Change of Control within thirty (30) Days after the date of receipt of such
demand, such Transfer or Change of Control is not voided, cancelled, rescinded and terminated
within said thirty (30) Day period, or
(e) Developer fails to submit to the City in accordance with the
Schedule of Performance the Schematic Drawings and/or the final drawings and related
documents as required by Sections 402 and 403 of the Agreement or the Evidence of Financing
as required by Section 314 of the Agreement, and after the City delivers a written demand to
Developer to cure such failure within thirty (30) Days after the receipt of such demand and such
failure is not cured within said thirty (30) Day period,
then the Agreement may, at the City’s option, be terminated by
Notice to Developer. From the date of the Notice of termination of the Agreement by the City to
Developer and thereafter the Agreement shall be deemed terminated and there shall be no further
rights or obligations between the Parties. Upon such termination by the City, all monies or
documents deposited by any Party into Escrow shall be returned to the Party making such
deposit. If the Agreement is terminated due to Default of Developer, Developer shall pay all
escrow cancellation costs. If the Agreement is terminated for any other reason, the Parties shall
each pay one-half of the escrow cancellation costs.
604.2 Termination After Closing
After the Close of Escrow but before Completion of the Project, the City
shall have the additional right to terminate the Agreement, subject to any rights or interests
provided in the Agreement for the protection of the holder or successors-in-interest of such
mortgages, deeds of trust or other security instruments, in the event any of the following defaults
shall occur:
(a) Developer fails to commence construction of the Project as
required by the Agreement for a period of ninety (90) days after written notice from the City,
provided that Developer shall not have obtained an extension or postponement to which
Developer may be entitled pursuant to Section 706 hereof; or
(b) Developer abandons or substantially suspends construction of the
Project for a period of ninety (90) days after written notice has been given by the City to
Developer, provided Developer has not obtained an extension or postponement to which
Developer may be entitled to pursuant to Section 706 hereof; or
Attachment No. 1
77 (c) Developer assigns or Transfers or attempts to assign or Transfer
the Agreement (or any rights herein), or sells, Transfers, conveys, assigns, or leases the whole or
any part of the Site (or any portion thereof) or of the Improvements to be constructed thereon,
except for a Permitted Transfer, or undergoes a Change of Control in violation of the Agreement,
and after the City delivers a written demand to Developer to void, cancel, rescind and terminate
such Transfer or Change of Control within thirty (30) Days after the date of receipt of such
demand, such Transfer or Change of Control is not voided, cancelled, rescinded and terminated
within said thirty (30) Day period; or
(d) Developer otherwise materially breaches the Agreement, and such
breach is not cured within the time provided in Section 601 of the Agreement.
The rights established in this Section 604.2 shall not apply to any part of
the Project with respect to which the City has issued a Release of Construction Covenants.
In the event the City terminates the Agreement pursuant to this Section
604.2, the City shall retain its rights under Section 612, notwithstanding the termination of the
Agreement.
605. Applicable Law
The laws of the State of California shall govern the interpretation and
enforcement of the Agreement.
606. Acceptance of Service of Process
If any legal action is commenced by Developer against the City, service of
process on the City and the Successor Agency shall be made by personal service upon the City
Manager or in such other manner as may be provided by law.
If any legal action is commenced by the City or the Successor Agency against
Developer, service of process on Developer shall be made by personal service upon an officer or
member of Developer or in such other manner as may be provided by law, and shall be valid
whether made within or without the State of California.
607. Rights and Remedies Are Cumulative
Except as otherwise expressly stated in the Agreement, the rights and remedies of
the Parties are cumulative, and the exercise by either Party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same time or different times, of any other
rights or remedies for the same default or any other default by the other Party.
608. Damages
If either Developer or the City or the Successor Agency defaults with regard to
any of the provisions of the Agreement, the non-defaulting Party shall serve written Notice of
such Default upon defaulting party. If the Default is not cured or commenced to be cured and
thereafter diligently pursued to completion by the defaulting Party within the applicable cure
Attachment No. 1
78period, the defaulting Party shall be liable to the other party for any damages caused by such
Default.
City shall give Developer a credit against the payment of any damages that might
be imposed against the Developer in an amount equal to Developer’s cost of any studies, reports,
plans and the like which are transferred to City ownership and which the City reasonably
determines are necessary or desirable for the future development of the Site.
609. Specific Performance
If either Developer or the City or the Successor Agency defaults under any of the
provisions of the Agreement, the non-defaulting Party shall serve written Notice of such Default
upon the defaulting Party. If the Default is not commenced to be cured by the defaulting Party
within the applicable cure period, and thereafter diligently pursued to completion, the non-
defaulting Party at its option may institute an action for specific performance of the terms of the
Agreement.
The rights established in this Section are not intended to be exclusive of any other
right, power or remedy, but each and every such right, power, and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and remedy authorized herein or
now or hereafter existing at law or in equity.
610. Inaction Not a Waiver of Default
Any failures or delays by either Party 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,
or deprive either such Party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or remedies at any
time.
611. Attorneys’ Fees
In any action between the Parties to interpret, enforce, reform, modify, rescind or
otherwise in connection with any of the terms or provisions of the Agreement, the prevailing
Party in the action or other proceeding shall be entitled, in addition to damages, injunctive relief
or any other relief to which it might be entitled, reasonable costs and expenses including, without
limitation, litigation costs, expert witness fees and reasonable attorneys’ fees and costs.
As used in the Agreement, the terms “attorneys’ fees” or “attorneys’ fees and
costs” means the reasonable fees and expenses of counsel to the Parties hereto (including,
without limitation, in-house or other counsel employed by the City or Developer) which may
include printing, duplicating and other expenses, air freight charges, and fees billed for law
clerks, paralegals and others not admitted to the bar but performing services under the
supervision of an attorney. The terms “attorneys’ fees” or “attorneys’ fees and costs” shall also
include, without limitation, all such fees and expenses incurred with respect to enforcement of
judgments, appeals, arbitrations and bankruptcy proceedings, and whether or not any action or
proceeding is brought with respect to the matter for which said fees and expenses were incurred.
Attachment No. 1
79612. Right of Reverter
The City shall have the additional right, at its option, to re-enter and take
possession of the property conveyed to Developer pursuant to this Agreement, with all
improvements thereon, and revest in the City the estate theretofore conveyed to Developer if,
after Closing of title and prior to recordation of the Release of Construction Covenants,
Developer (or its successors in interest):
(a) Fails to proceed with the construction of Improvements as required by the
Agreement for a period of three (3) months, plus any extension as may be granted pursuant to
Section 706 of the Agreement, after written notice thereof from the City.
(b) Abandons or substantially suspends construction of improvements for a
period of three (3) months after written notice of such abandonment or suspension from the City,
plus any extension as may be granted pursuant to Section 706 of the Agreement, after written
notice thereof from the City.
(c) Transfers or suffers any involuntary Transfer of the Site, or any part
thereof, in violation of the Agreement.
Such right to repurchase, re-enter and repossess shall be subject to and be
limited by and shall not defeat, render invalid, or limit:
(i) Any mortgage, deed or trust or other security instrument permitted
by the Agreement.
(ii) Any rights or interests provided in the Agreement for the
protection of the holder or successors-in-interest of such mortgages, deeds of trust or other
security instruments.
In the event it is determined by the City or by a court of competent jurisdiction
that the City does not have the legal authority to validly exercise the right of reverter granted
herein as to the Agency Parcels, then the City may proceed with its rights and remedies under
this Section 612 as to the City Parcels, and the Successor Agency may proceed with the rights
and remedies under this Section 612 as to the Agency Parcels, and all references in this Section
to City shall be deemed to refer to the Successor Agency as to the Agency Parcels.
The City Grant Deed and the Successor Agency Grant Deed shall contain
appropriate reference and provision to give effect to the City’s right, as set forth in this
Section 612 subject to the foregoing provisions.
Upon issuance of a Release of Construction Covenants for the Improvements to
be constructed on any applicable portion of the Site, the City’s right to reenter, terminate and
revest as to such portion of the Site shall terminate, and the City shall only be entitled to reenter,
terminate and revest with respect to the other parcels within the Site for which no Release of
Construction Covenants has been issued.
Attachment No. 1
80Upon the revesting in the City of title to the Site as provided in this Section 612,
the City shall use its best efforts to resell the Site or part thereof as soon and in such manner as
the City shall find feasible to a qualified and responsible party or parties (as determined by the
City), who will assume the obligation of making or completing the Improvements, or such
improvements in their stead as shall be satisfactory to the City and in accordance with the uses
specified for such Site or part thereof in this Agreement. Upon such resale of the Site, the
proceeds thereof shall be applied:
(x) First, to reimburse the City on its own behalf or on behalf of the
Agency for all reasonable and necessary costs and expenses incurred by the City,
including but not limited to, salaries of personnel employed or utilized in connection with
the recapture, management and resale of the Site or part thereof (but less any income
derived by the City from the Site or part thereof in connection with such management);
all taxes, assessments and water and sewer charges with respect to the Site or part thereof
(or, in the event the Site is exempt from taxation or assessment or such charges during the
period of ownership to such taxes, assessments or charges (as determined by the City
assessing official) as would have been payable if the Site were not so exempt); any
payments made or necessary to be made to discharge to prevent from attaching or being
made any subsequent encumbrances or liens due to obligations, defaults or acts of
Developer, its successors or transferees; any expenditures made or obligations incurred
with respect to the making or completion of the improvements or any part thereof on the
Site or part thereof; and any amounts otherwise owing the City by Developer and its
successor or transferee; and
(y) Second, to reimburse Developer, its successor or transferee up to
the amount equal to (1) the sum of the purchase price paid to the City by Developer for
the Site; (2) the costs incurred for the development of the Site and for the improvements
existing on the Site at the time of the re-entry and repossession, less (3) any gains or
income withdrawn or made by Developer from the Site or the improvements thereon; and
(z) Finally, any balance remaining after such reimbursements shall be
retained by the City as its sole property.
To the extent that the rights established in this Section involves forfeiture, the
rights of the City hereunder must be strictly interpreted in favor of the City, the Party for whose
benefit the right of reverter is created. The right of reverter and other rights established in this
Section are to be interpreted in light of the fact that the City will convey the Site to Developer for
development of the Project as set forth herein and not for speculation.
700. GENERAL PROVISIONS
701. Notices, Demands and Communications Between the Parties
Unless otherwise specified in the Agreement, it shall be sufficient service or
giving of any notice, request, certificate, demand or other communication if the same is sent by
(and all notices required to be given by mail will be given by) first-class registered or certified
mail, postage prepaid, return receipt requested, or by private courier service which provides
Attachment No. 1
81evidence of delivery. Unless a different address is given by any Party as provided in this
Section, all such communications will be addressed as follows:
To City: The City of Culver City
Attn: Sol Blumenfeld, Community Developer Director
9770 Culver Boulevard
Culver City, California 90232-0507
Copy to: The City of Culver City
Attn: Carol Schwab, City Attorney
9770 Culver Boulevard
Culver City, California 90232-0507
Copy to: Kane, Ballmer & Berkman
Attn: Murray O. Kane, Esq.
515 S. Figueroa Street; Suite 780
Los Angeles, California 90071
To Developer: Lowe Enterprises Real Estate Group
Attn: Thomas W. Wulf
Senior Vice President; and
Attn: John DeMarco, Esq.
General Counsel
11777 San Vicente Boulevard; Suite 900
Los Angeles, California 90049
Copy to: Liner LLP
Attn: Michael J. Kiely
1100 Glendon Avenue, 14
th
Floor
Los Angeles, California 90024
Any Notice shall be deemed received as of the date of courier service delivery or
shall be deemed received on the third day from the date it is postmarked if delivered by
registered or certified mail.
702. Intentionally Omitted
703. Conflicts of Interest
No member, official or employee of the City shall have any direct or indirect
interest in the Agreement, nor shall such member, official or employee participate in any
decision relating to the Agreement which is prohibited by law.
704. Warranty Against Payment of Consideration for Agreement
Developer warrants that it has not paid or given, and will not pay or give, any
third person any money or other consideration for obtaining the Agreement, other than normal
Attachment No. 1
82costs of conducting business and costs of professional services such as project managers,
architects, engineers, attorneys, and public relations consultants.
705. Nonliability of City and Successor Agency Officials and Employees
No member, official or employee of the City or the Successor Agency shall be
personally liable to Developer, or any successor in interest, in the event of any default or breach
by the City or the Successor Agency or for any amount which may become due to Developer or
successor or on any obligation under the terms of the Agreement.
706. Enforced Delay; Extension of Times of Performance
Failure by either Party to perform shall not be deemed a default hereunder and
times for performance (including but not limited to the Outside Closing Date) shall be extended
as provided herein where delays are due to war; insurrection; strikes; lockouts; 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 (including, without limitation, any litigation challenging this Agreement, City's or
Successor Agency’s ability to perform under the Agreement, or the Project Entitlements);
unusually severe weather; inability to secure necessary labor, materials or tools; delays of any
contractor or supplier; acts of the other party; acts of failure to act of any public or governmental
agency or entity (other than that acts or failure to act of the City or the Successor Agency shall
not excuse performance by the City or the Successor Agency) or similar causes beyond the
control and without the fault of the Party claiming an extension of time to perform (collectively,
a “Force Majeure” delay); provided, however, that the Party claiming the existence of a Force
Majeure delay and an extension of its obligation to perform shall notify the other Party in writing
of the nature of the matter causing the delay within thirty (30) Days from the occurrence thereof.
The lack of funding to complete the design and development of the Site shall not
constitute grounds of Force Majeure delay pursuant to this Section 706. Developer expressly
assumes the risk of real estate market conditions, construction costs, interest rates, and other
similar general economic circumstances that may make funding and/or construction of the
Project difficult, more expensive, or infeasible, whether or not such events or causes are
foreseeable as of the date of the Agreement. Developer acknowledges and agrees that the
provisions of this Section 706 shall not operate to excuse Developer from prompt payment of
Purchase Price or other monies when due.
The extension of time to perform shall commence to run from the time of the
commencement of the cause and shall continue only for the period of the Force Majeure delay.
Failure to give the notice of the nature of the matter causing the delay within thirty (30) days
from the occurrence thereof does not waive the right to assert a Force Majeure delay, but in such
event the extension of time to perform will only commence from the date of notice and not from
the commencement of the cause.
Times of performance under the Agreement may also be extended in writing by
mutual agreement of the City and Developer.
Attachment No. 1
83707. Plans and Data
If the Agreement is terminated by Developer pursuant to Section 603, the City
shall have the right, but not the obligation, to purchase from Developer all plans, drawings,
studies and related documents concerning the Project within Developer’s possession and control,
without representation or warranty. The purchase price for all or any part of such materials shall
be their cost to Developer.
If the Agreement is terminated by the City pursuant to Section 604, then, pursuant
to the exercise of City’s rights under the Assignment of Plans, Reports and Data, Developer shall
deliver to the City any and all plans, drawings, studies and related documents concerning the
Project within Developer’s possession and control, without representation or warranty. Upon
delivery to the City, the City shall have the right to use such materials as it deems necessary and
appropriate to fulfill the purposes of the Agreement without obligation to Developer.
708. Approval by City and Developer
Approvals required of the Parties shall be given within the time set forth in the
Schedule of Performance or, if no time is given, within a reasonable time. Wherever the
Agreement requires the City or Developer to approve any contract, document, plan, proposal,
specification, drawing or other matter, such approval shall not be unreasonably withheld or
delayed. In the event that a Party declines to approve any contract, document, plan, proposal,
specification, drawing or other matter, such denial shall be in writing and shall include the
reasons for such denial. The Party considering the request for such approval shall use
commercially reasonable efforts to respond to such request for approval within thirty (30) Days
of receipt unless expressly provided to the contrary herein.
709. Relationship Between City and Developer
The Parties agree that Developer, in the performance of the Agreement, shall act
as and be an independent contractor and shall not act in the capacity of an agent, employee or
partner of the City. It is hereby acknowledged that the relationship between the City and
Developer is not that of a partnership or joint venture and that the City and Developer shall not
be deemed or construed for any purpose to be the agent of the other. Developer agrees to
indemnify, hold harmless and defend the City from any claim made against the City arising from
a claimed relationship of partnership or joint venture between the City and Developer with
respect to the development, operation, maintenance or management of the Project on the Site or
the Improvements developed thereon by Developer.
710. [INTENTIONALLY OMITTED]
711. Computation of Time
The time in which any act is to be done under the Agreement is computed by
excluding the first day (such as the day escrow opens), and including the last day. If any act is to
be done by a particular time during a day, that time shall be Pacific Time Zone time.
Attachment No. 1
84712. Legal Advice
Each Party represents and warrants to the other the following: they have carefully
read the Agreement, and in signing the Agreement, they do so with full knowledge of any right
which they may have; they have received independent legal advice from their respective legal
counsel as to the matter set forth in the Agreement, or have knowingly chosen not to consult
legal counsel as to the matters set forth in the Agreement; and, they have freely signed the
Agreement without any reliance upon any agreement, promise, statement or representation by or
on behalf of the other Party, or their respective agents, employees, or attorneys, except as
specifically set forth in the Agreement, and without duress or coercion, whether economic or
otherwise.
713. Time of Essence
Time is expressly made of the essence with respect to the performance by the
City, the Successor Agency and Developer of each and every obligation and condition of the
Agreement.
714. Disclosure Authorization
By executing the Agreement, Developer hereby authorizes, consents and agrees to
the disclosure to the City by any public or private entity of any information or data deemed
necessary by the City in order to implement the provisions of the Agreement including, but not
limited to, the Purchase Price.
715. Administration
The Agreement shall be administered by the City Manager or Community
Development Director following approval of the Agreement by the City. Whenever a reference
is made in the Agreement to an action, finding or approval to be undertaken by the City, the City
Manager or the Community Development Director is authorized to act on behalf of the City
unless specifically provided otherwise or the context should require otherwise. Whenever a
reference is made in the Agreement to an action, finding or approval to be undertaken by the City
Manager, the Community Development Director is authorized to act on behalf of the City
Manager as his designee. The City Manager or the Community Development Director shall have
the authority to issue interpretations, waive provisions and enter into amendments of the
Agreement on behalf of the City so long as such actions do not substantially change the uses or
development permitted for the Project, or add to the costs of the City as specified herein or as
agreed to by the City Council. Notwithstanding the foregoing, the City Manager or the
Community Development Director may in his or her sole and absolute discretion refer any matter
to the City Council for action, direction or approval.
Whenever a reference is made in the Agreement to an action, finding or approval
to be undertaken by the Successor Agency, the Executive Director of the Successor Agency is
authorized to act on behalf of the Successor Agency unless specifically provided otherwise
herein. Notwithstanding anything to the contrary herein, wherever a reference is made in the
Agreement to an action or approval to be performed or issued by the City, the Successor Agency
Attachment No. 1
85is not required to, and shall not, take such action or issue such approval (or disapproval) in
addition to, or on behalf of, the City.
716. Mutual Cooperation
Each Party agrees to cooperate with the other in this transaction and, in that
regard, to sign any and all documents which may be reasonably necessary, helpful or appropriate
to carry out the purposes and intent of the Agreement. To the extent that any lender to, or equity
investor in the Project requires modifications to the Agreement or any attachment hereto, the
City agrees to make such modification within a reasonable time on the condition that such
modification does not materially change the rights and obligations of the Parties as set forth
herein.
717. Ground Breaking and Grand Openings
To insure proper protocol and recognition of the City Council, Developer shall
cooperate with City staff in the organization of any Project-related ground breaking, grand
openings or any other such inaugural events/ceremonies sponsored by Developer and celebrating
the development which is the subject of the Agreement providing City staff with at least three (3)
weeks written prior notice of any such event.
718. Estoppel Letters
Each Party shall, upon the reasonable request of the other, issue to any actual or
prospective lender, mortgagee, equity investor, purchaser, ground lessee, lessee or sublessee of
the other, within fifteen (15) business Days after receipt of any such request, estoppel letters
indicating whether the Agreement has been duly assigned, modified or amended in any way (and
if it has then stating the nature thereof)the absence of any default of the requesting Party, if such
be the case, and the effectiveness of the Agreement, if such be the case.
719. Counterparts
The Agreement may be signed in counterparts, each of which shall be deemed to
be an original.
720. Entire Agreement, Waivers and Amendments
The Agreement is executed in four (4) duplicate originals, each of which is
deemed to be an original. The Agreement and all Attachments and Exhibits hereto constitute the
entire understanding and agreement of the Parties.
The 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 the subject matter hereto.
All waivers of the provisions of the Agreement must be in writing and signed by
the appropriate authorities of the City or Developer, and all amendments hereto must be in
writing and signed by the appropriate authorities of the City and Developer; provided, however,
Attachment No. 1
86that the Successor Agency’s approval shall be required for any amendments hereto that result in
a reduction of the Agency Purchase Price payable by Developer to the Successor Agency for the
Agency Parcels.
721. Time for Acceptance of Agreement by City
The Agreement, when executed by Developer and delivered to the City and the
Successor Agency, must be authorized and executed by the City and the Successor Agency
within one hundred twenty (120) Days after date of signature by Developer or the Agreement
shall be void, except to the extent that the City, the Successor Agency and Developer shall
consent in writing to a further extension of time for the authorization, execution and delivery of
the Agreement by the City and the Successor Agency. The date of the Agreement shall be the
date when the Agreement shall have been signed by the City and the Successor Agency.
[Signatures on Following Page]
Attachment No. 1
87IN WITNESS WHEREOF, the City and Developer have signed this Implementation
Agreement as of the date set opposite their signatures.
“DEVELOPER”
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
Dated: _____________________ By: _____________________________________
Thomas W. Wulf
Senior Vice President
[Signatures Continue on Following Page]
Attachment No. 1
88
“CITY”
THE CITY OF CULVER CITY,
a municipal corporation and charter city of the State
of California
Dated: ______________________ By: ____________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Sol Blumenfeld
Community Development Director
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: _________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
Attachment No. 1
89
“SUCCESSOR AGENCY”
THE SUCCESSOR AGENCY TO THE CULVER
CITY REDEVELOPMENT AGENCY,
a successor agency under California Health &
Safety Code Section 34173
Dated: ______________________ By: ____________________________________
John M. Nachbar
Executive Director
APPROVED AS TO CONTENT:
By: ______________________________
Sol Blumenfeld
Community Development Director
ATTEST:
By: ______________________________
Successor Agency Secretary
APPROVED AS TO FORM:
By: _________________________________
KANE, BALLMER & BERKMAN
Successor Agency Special Counsel
Attachment No. 1
90ATTACHMENT NO. 1-A
WASHINGTON NATIONAL SITE MAP
[See Attached]
[Includes Depiction of Agency Parcels, City Parcels, Easement Area, and LACMTA Parcel]
Attachment No. 1
912.177 ACRES (98,486 SF)
.957 ACRES (41,700 SF)
.617 ACRES (26,855 SF)
1.258 ACRES (54,783 SF)
.413 ACRES (17,990 SF)
.147 ACRES(6,400 SF)
EXPO LRT PLATFORM
MTA ROW
EXPOSITION BLVD.
SUCCESSOR AGENCY
PARCEL
CITY PARCEL
City of Los Angeles
City of Culver City
WASHINGTON NATIONAL TRIANGLE SITE
NET DEVELOPABLE AREA BY PARCEL
Attachment No. 1
92ATTACHMENT NO. 1-B
WASHINGTON NATIONAL PARKING ENCROACHMENTS
[See Attached]
Attachment No. 1
93City of Los Angeles Encroachments
Attachment No. 1
94ATTACHMENT NO. 2-A
LEGAL DESCRIPTION – AGENCY PARCELS
[See Attached]
Attachment No. 1
95Attachment No. 1
96Attachment No. 1
97Attachment No. 1
98Attachment No. 1
99Attachment No. 1
100Attachment No. 1
101Attachment No. 1
102ATTACHMENT NO. 2-B
LEGAL DESCRIPTION – CITY PARCELS
[See Attached]
Attachment No. 1
103LEGAL DESCRIPTIONS
8900-8906 Venice Blvd
Real property in the City of Los Angeles and the City of Culver City, County of Los
Angeles, California, described as follows:
LOTS 16, 17 AND 18 IN THE CITY OF LOS ANGELES, AND LOTS 19 AND 20
PARTLY IN THE CITIES OF LOS ANGELES AND CULVER CITY, IN THE COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, ALL OF TRACT NO. 5461, AS PER
MAP RECORDED IN BOOK 57 PAGE 76 OF MAPS, IN THE OFFICE OF THE
RECORDER OF SAID COUNTY.
APN: 4312-014272
8910-8912 Venice Blvd
Real property in the City of Los Angeles, County of Los Angeles, State of California,
described as follows:
LOTS 14 AND 15 OF TRACT NO. 5461, IN THE CITY OF LOS ANGELES, AS PER
MAP RECORDED IN BOOK 57, PAGE 76 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 4312-014-281
8914-8916-8918 Venice Blvd
Real property in the City of Los Angeles, County of Los Angeles, State of California,
described as follows:
LOTS 11, 12 AND 13 OF TRACT NO. 5461, IN THE CITY OF LOS ANGELES, AS PER
MAP RECORDED IN BOOK 57, PAGE 76 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 4312-014-278 and 4312-014-279 and 4312-014-280
Attachment No. 1
104
8926 Venice Blvd
Real property in the City of Los Angeles, County of Los Angeles, State of California,
described as follows:
LOTS 7, 8 AND 9 OF TRACT NO. 5461, IN THE CITY OF LOS ANGELES, AS PER
MAP RECORDED IN BOOK 57, PAGE 76 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 4312-014-277
8930 Venice Blvd
Real property in the City of Los Angeles, County of Los Angeles, State of California,
described as follows:
LOTS 4, 5 AND 6 OF TRACT NO. 5461, IN THE CITY OF LOS ANGELES, AS PER
MAP RECORDED IN BOOK 57, PAGE 76 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 4312-014-273 and 4312-014-274 and 4312-014-275
8936 Venice Blvd
Real property in the City of Los Angeles, County of Los Angeles, State of California,
described as follows:
LOTS 1, 2 AND 3 OF TRACT NO. 5461, IN THE CITY OF LOS ANGELES, AS PER
MAP RECORDED IN BOOK 57, PAGE 76 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY.
APN: 4312-014-273 and 4312-014-274 and 4312-014-275
Attachment No. 1
105ATTACHMENT NO. 2-C
LEGAL DESCRIPTION – EASEMENT AREA
[See Attached]
Attachment No. 1
106Attachment No. 1
107Attachment No. 1
108Attachment No. 1
109ATTACHMENT NO. 2-D
LEGAL DESCRIPTION – LACTMTA PARCEL
[See Attached]
Attachment No. 1
110Attachment No. 1
111Attachment No. 1
112Attachment No. 1
113ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
The Project will include a multi-level high quality transit orientated development compliant
with the PD Zone Requirements with a maximum 55% site coverage consisting of 120-200
residential dwelling units; 159,734-200,000 square feet of office uses; 25,000-85,000 square
feet of retail and restaurant uses; a high end boutique hotel with 142-148 rooms; at least one
third (1/3) of an acre dedicated to open space; with a minimum of two (2) levels of below
grade parking (the “Parking Garage”)that will include 300 EXPO parking spaces up to a
maximum of 1,567 total parking spaces in compliance with the PD Zone Requirements and
potentially limited podium parking away from visible street frontage; and a transit plaza at
the Phase 1 EXPO Station connecting the second story EXPO Station platform to the shops
and plaza below, as more particularly described in this Agreement and consistent with the
Project Entitlements.
Attachment No. 1
114ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
[See Attached]
Attachment No. 1
115
Attachment No. 4 –
Page 1
16200.001-1152644v2.2
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
ITEM OF PERFORMANCE TIME FOR COMPLETION
1. Opening of Escrow. The Parties open Escrow and
execute Escrow Instructions (§ 302.1)
Within 10 days after the
Effective Date
2. Developer Submit Relocation LC. Developer to
deliver to City a Letter of Credit for [$900,000]
(301.4(c))
Within 30 days after the
Effective Date
3. Notice of Proposed Conceptual Plan. Developer to
deliver to City its proposed conceptual plan for the
Project
Within 90 days after Effective
Date
4. Initial Presentation of Conceptual Plan to
LACMTA.
Within 30 days after
submission to City
5. Preparation of 30% Drawings for LACMTA
Approval Areas and Submission to LACMTA. Per
Option Agreement Section 5.b.ii
Within 60 days after City
staff’s approval of proposed
Conceptual Plan
6. LACTMA Approval of 30% Drawings for
LACMTA Approval Areas. Per Option Agreement
Section 5.b.ii
Within 60 days after
Developer’s submission of
30% Drawings
7. Submit Preliminary Project Review application-
Conceptual Site Plan. Under PD Zone
Requirements, submission goes to Project Review
Committee
Within 45 days after
LACMTA Approval of 30%
Drawings
8. Submit Preliminary Vesting Tentative Tract Map
application. Under Vesting Tentative Tract Map
provisions, this submission goes to the City Planner
Within 45 days after
LACMTA Approval of 30%
Drawings
9. Submit Application for the Comprehensive Plan.
Under PD Zone Requirements. Application would
also include tract map (including street vacations),
Design for Development approval under
Redevelopment Plan; also, Environmental
Assessment Form.
Target within 60 days after
Project Review Committee
sign off
Attachment No. 1
116
Attachment No. 4 –
Page 2
16200.001-1152644v2.2
ITEM OF PERFORMANCE TIME FOR COMPLETION
10. Submit Application for the City of Los Angeles
Entitlements. Application would include General
Plan Amendment, zone change, site plan review,
possibly tract map [including street vacations],
Conditional use permits for alcohol
Within 10 days after City
notifies Developer that Culver
City application is complete.
11. Submit Application for CalTrans Parking
Encroachments (if applicable).
Within 10 days after City
notifies Developer that Culver
City application is complete.
12. Evidence of Financing. Developer to submit
Evidence of Financing to City (§314; 406)
Thirty (30) days prior to
Closing
13. City Approval of Financing. City to approve or
disapprove Evidence of Financing (§314; 406)
Within 20 days after
Developer’s submission of
Evidence of Financing to City
14. Submission – Construction Contract. Developer to
submit Construction Contract to City (§§314, 407)
30 days prior to Close of
Escrow
15. City Approval of Construction Contract. City to
approve or disapprove Construction Contract
(§314)
Within 20 days after
Developer’s submission of
Construction Contract to City
16. Exercise of Option for Perpetual Easement
Agreement. City and Successor Agency to give
Option Notice to LACMTA of exercise of Option
for Perpetual Easement Agreement
30 days prior to Close of
Escrow
17. Permits. Developer submits to necessary
governmental agencies all applications, pays all fees
for, and obtains, all permits and approvals required
for the initial construction (i.e., demolition and site
work) (§403)
60 days prior to Close of
Escrow
18. Submission – Construction Loan Documents.
Developer to submit Construction Loan Documents
to City for initial Phase (§§314, 406)
Prior to Closing
19. City Approval of Construction Loan Documents.
City to approve or disapprove Construction Loan
Documents (§314; 406)
Within 20 days after
Developer’s submission of
Construction Loan Documents
to City
Attachment No. 1
117
Attachment No. 4 –
Page 3
16200.001-1152644v2.2
ITEM OF PERFORMANCE TIME FOR COMPLETION
20. Developer and City Establish City Parcels Purchase
Price Credit. (§301.2(c))
30 days prior to Close of
Escrow
21. Outside Closing Date. Closing to occur by Outside
Closing Date (§§101, 301.3, 302.5, 302.6,
August 31, 2017
22. Deposit of Closing Documents and Funds.
Developer, City and Successor Agency to deposit
into Escrow the documents and funds for which
each is responsible, and any other required closing
documents (§303.1, 303.2)
One (1) Business Day prior to
the Close of Escrow
23. Commencement of Construction. Developer
commences construction of Project
Within 30 days after the Close
of Escrow.
24. Completion of Project. Developer completes
construction of the Improvements and all related
landscaping and common area improvements
(§____)
Within 30 months after
commencement
25. Release of Construction Covenants. City to deliver
following completion (§413)
Within 15 days after
Developer’s Notice to City of
Completion of Construction
Attachment No. 1
118ATTACHMENT NO. 5-A
SUCCESSOR AGENCY GRANT DEED
[See Attached]
Attachment No. 1
119ATTACHMENT NO. 5-A
SUCCESSOR AGENCY GRANT DEED
OFFICIAL BUSINESS
Document entitled to free recording
per Government Code Section 27383
RECORDING REQUESTED BY:
SUCCESSOR AGENCY TO THE
CULVER CITY REDEVELOPMENT AGENCY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Redevelopment Project Manager
WHEN RECORDED MAIL TO AND SEND
TAX STATEMENTS TO:
LOWE ENTERPRISES REAL ESTATE GROUP
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Thomas W. Wulf, Senior Vice President
SPACE ABOVE THIS LINE FOR RECORDING USE
Parcel Number:
Separate Statement of tax due submitted
per Revenue and Taxation Code Section 11932
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, the SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT
AGENCY, a public body, corporate and politic, herein called “Grantor”, acting to carry out the
Redevelopment Plan under the Community Redevelopment Law of the State of California,
hereby grants to LOWE ENTERPRISES REAL ESTATE GROUP, a California corporation,
herein called “Grantee”, the real property, hereinafter referred to as the “Property”, described
in the document attached hereto, labeled Exhibit A and incorporated herein by this reference.
(1) Said Property is conveyed in accordance with and subject to the Redevelopment Plan,
which was approved and adopted on November 23, 1998 by Ordinance No. 98-014 of the City
Council of the City of Culver City, as amended, and the Implementation Agreement (the
“Implementation Agreement”) entered into by and between Grantor, the CITY OF CULVER
CITY, a municipal corporation (“City”) and Grantee as of ______________________, 2014,
both of which documents are public records on file in the offices of the City Clerk of City and
Attachment No. 1
1202
the Secretary of Grantor. “Implementation Agreement” as used herein shall mean, refer to and
include the Implementation Agreement, as well as any riders, exhibits, addenda, implementation
agreements, amendments and attachments thereto or other documents expressly incorporated by
reference in the Implementation Agreement. Any capitalized term not herein defined shall have
the same meaning as set forth in the Implementation Agreement. The Implementation
Agreement is hereby incorporated herein by this reference.
(2) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees to (i) construct the Project as required by
the Implementation Agreement; (ii) devote the Property to the uses required by, and use the
Property and conduct all activities undertaken pursuant to the Implementation Agreement in
conformity with, all applicable provisions of the Redevelopment Plan, the Comprehensive Plan
approved by City pursuant to the PD Zone Requirements, the Project Entitlements, all conditions
of approval of the Project Entitlements, the Culver City Municipal Code and any other applicable
Governmental Requirements; (iii) use such property in conformity with and abide by the
covenants and restrictions set forth in the City Grant Deed and this Grant Deed; and (iv) perform
all obligations of Grantee the set forth in the Participation Agreement (Attachment No. 7 to the
Implementation Agreement).
(3) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees to (i) maintain the Property and all
Improvements thereon, including landscaping, lighting and signage, in good condition, free of
debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan and with
all applicable provisions of the Culver City Municipal Code and in accordance with the
“Maintenance Standards,” as hereinafter defined; (ii) contract with and hire licensed and
qualified personnel or contractors to perform the maintenance work, including the provision of
labor, equipment, materials, support facilities, and any and all other items necessary to comply
with the requirements of the Implementation Agreement; (iii) obtain the prior written approval of
the City of any declaration of easements and restrictions or any reciprocal easement agreement
entered into by and between Grantee and the owner or owners of other privately owned portions
of the Property, and obtain the prior written approval of the City of any amendment to any such
declaration or reciprocal easement agreement; and (iv) comply with the following standards
(“Maintenance Standards”) and to cause its contractors and subcontractors to adhere to the
Maintenance Standards:
(a) The Maintenance Standards shall apply to all buildings, signage, lighting,
landscaping, irrigation of landscaping, architectural elements identifying the
Property and any and all other common area of the Improvements on the Property.
The Property shall be maintained in conformance and in compliance with the
approved building permit drawings, and reasonable maintenance standards for
similar, neighboring structures, including but not limited to painting and cleaning
of all exterior surfaces and other exterior facades comprising all private
improvements and public improvements to the curbline. The Property shall be
maintained in good condition and in accordance with the custom and practice
generally applicable to comparable developments.
Attachment No. 1
1213
(b) Landscape maintenance shall include, but not be limited to: watering/irrigation;
fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural
appearance and safe road conditions and visibility, and irrigation coverage;
replacement, as needed, of all plant materials; control of weeds in all planters,
shrubs, lawns, ground covers, or other planted areas; and staking for support of
trees.
(c) Clean up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas in clean and weed free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter
which is unsafe or unsightly; removal of all trash, litter and other debris from
improvements and landscaping prior to mowing; clearance and cleaning of all
areas maintained prior to the end of the day on which the maintenance operations
are performed to ensure that all cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
City has agreed to notify Grantee in writing if the condition of the Property does not meet
with the Maintenance Standards specified herein and to specify the deficiencies and the actions
required to be taken by Grantee to cure the deficiencies. Upon notification of any maintenance
deficiency, Grantee shall have thirty (30) Days within which to correct, remedy or cure the
deficiency, unless such deficiency cannot be reasonably corrected, remedied or cured within such
period, in which case, such period shall be extended for such time as is necessary to accomplish
the same provided that Grantee is diligently pursuing such correction, remedy or cure. If the
written notification states the problem is urgent relating to the public health and safety of the
City of Culver City, then Grantee shall have forty-eight (48) hours to commence curing the
problem. In the event Grantee does not maintain the Property in the manner set forth herein and
in accordance with the Maintenance Standards specified herein, City shall have, in addition to
any other rights and remedies hereunder, the right to maintain the Property, or to contract for the
correction of such deficiencies, after written notice to Grantee, and Grantee shall be responsible
for the payment of all such out of pocket third party costs incurred by City.
(4) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees that:
(a) The qualifications and identities of Grantee and its members are of particular
concern to City. It is because of those unique qualifications and identities that
City has entered into the Implementation Agreement with Grantee and is
imposing restrictions upon any Change of Control of Grantee and any Transfer
which is not a Permitted Transfer until City issues the Release of Construction
Covenants. Grantee represents that it is purchasing the Property to Develop and
Cause Construction of the Project on the Property, and that it is not purchasing the
Property for purposes of resale of the Property to a third party prior to the
Completion of construction of the Project. Accordingly, Grantee agrees not to
Transfer the Property prior to the Completion of construction of the Project. No
voluntary or involuntary successor in interest to Grantee shall acquire any rights
Attachment No. 1
1224
or powers in the Property or under the Implementation Agreement except as
expressly set forth herein.
(i) Without the prior written approval of City, which approval may be granted
or withheld in the discretion of City, but which approval shall not be
unreasonably withheld or delayed, Grantee shall not (i) Transfer all or any
part of its interest in or rights under the Implementation Agreement or the
Property other than a Permitted Transfer, or (ii) effect any Change of
Control. Any Permitted Transfer shall require notice to, but not the
consent of, City.
(ii) Notwithstanding the foregoing, if control or ownership of Grantee must be
changed in order to obtain financing to construct the Project, City shall
grant or withhold its approval in its reasonable discretion provided that
Robert Lowe, Sr., Robert Lowe, Michael Lowe, Richard Newman and/or
Thomas Wulf or other employees of Grantee reasonably approved by City,
remain the individuals exercising management control over the Project
and the implementation of the Implementation Agreement (subject to
oversight by Grantee’s or Grantee’s parent entity’s Board of Directors)
and remain Grantee’s primary contact with City.
(iii) Any Transfer or Change of Control in violation hereof will constitute a
breach and entitle City to use any remedy available to it at law or equity,
including, but not limited to, the right to terminate the Implementation
Agreement.
(iv) The restrictions on a Change of Control set forth herein shall terminate 5
years subsequent to the issuance of the Release of Construction
Covenants.
(b) Mortgages and deeds of trust through an Institutional Lender for the purpose of
securing loans of funds are to be used for (i) financing the acquisition,
predevelopment or development of the Property or other costs of development of
the Property, (ii) financing the construction of the Improvements (including
architecture, engineering, legal, and related direct costs as well as indirect hard
and soft costs such as real property taxes, insurance premiums, closing costs, loan
carrying costs, costs of financing and overhead) on or in connection with the
Property, or (iii) any other purposes necessary and appropriate in connection with
the Project under the Implementation Agreement; and shall be permitted before
issuance of the Release of Construction Covenants only with City’s prior written
approval in accordance with Section 206 of the Implementation Agreement. City
shall cooperate with Grantee and will in good faith consider all reasonable
requests by an Institutional Lender to modify the Implementation Agreement.
Any mortgage or deed of trust or other grant of a security interest in the Property
shall constitute a Transfer for purposes of the Implementation Agreement. The
words “mortgage” and “trust deed” solely as used herein shall include sale and
Attachment No. 1
1235
lease-back and other means of financing which involve the granting of a security
interest.
(5) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees that:
City shall have the right, at its option, to re-enter and take possession of the Property,
with all improvements thereon, and revest in City the estate theretofore conveyed by Grantor to
Grantee if, after Closing of title and prior to recordation of the Release of Construction
Covenants, Grantee (or its successors in interest):
(a) Fails to proceed with the construction of Improvements as required by the
Implementation Agreement for a period of three (3) months, plus any extension as
may be granted pursuant to Section 706 of the Implementation Agreement, after
written notice thereof from City.
(b) Abandons or substantially suspends construction of improvements for a period of
three (3) months after written notice of such abandonment or suspension from
City.
(c) Transfers or suffers any involuntary Transfer of the Property, or any part thereof,
in violation of the Implementation Agreement.
Such right to repurchase, re-enter and repossess shall be subject to and be limited by and
shall not defeat, render invalid, or limit: (i) any mortgage, deed or trust or other security
instrument permitted by the Implementation Agreement; or (ii) any rights or interests provided in
the Implementation Agreement for the protection of the holder of such mortgages, deeds of trust
or other security instruments.
In the event it is determined by City or by a Court of competent jurisdiction that City
does not have the legal authority to validly exercise the Right of Reverter as to the Property, then
Grantor may proceed with the rights and remedies hereunder as to the Property, and all
references in this paragraph to City shall be deemed to refer to Grantor as to the Property.
Upon issuance of a Release of Construction Covenants for the Improvements to be
constructed on any applicable portion of the Property, City’s right to reenter, terminate and
revest as to such portion of the Property shall terminate, and City shall only be entitled to reenter,
terminate and revest with respect to the other parcels within the Property for which no Release of
Construction Covenants has been issued.
Upon the revesting in City of title to the Property as provided herein, City shall use its
best efforts to resell the Property or part thereof as soon and in such manner as City shall find
feasible to a qualified and responsible party or parties (as determined by City), who will assume
the obligation of making or completing the Improvements, or such improvements in their stead
as shall be satisfactory to City and in accordance with the uses specified for such Property or part
thereof in the Implementation Agreement. Upon such resale of the Property, the proceeds
thereof shall be applied:
Attachment No. 1
1246
(x) First, to reimburse City on its own behalf or on behalf of Grantor for all
reasonable and necessary costs and expenses incurred by City, including but not
limited to, salaries of personnel employed or utilized in connection with the
recapture, management and resale of the Property or part thereof (but less any
income derived by City from the Property or part thereof in connection with such
management); all taxes, assessments and water and sewer charges with respect to
the Property or part thereof (or, in the event the Property is exempt from taxation
or assessment or such charges during the period of ownership to such taxes,
assessments or charges (as determined by City assessing official) as would have
been payable if the Property were not so exempt); any payments made or
necessary to be made to discharge to prevent from attaching or being made any
subsequent encumbrances or liens due to obligations, defaults or acts of Grantee,
its successors or transferees; any expenditures made or obligations incurred with
respect to the making or completion of the improvements or any part thereof on
the Property or part thereof; and any amounts otherwise owing City by Grantee
and its successor or transferee; and
(y) Second, to reimburse Grantee, its successor or transferee up to the amount equal
to (1) the sum of the purchase price paid to Grantor by Grantee for the Property;
(2) the costs incurred for the development of the Property and for the
improvements existing on the Property at the time of the re-entry and
repossession, less (3) any gains or income withdrawn or made by Grantee from
the Property or the improvements thereon; and
(z) Finally, any balance remaining after such reimbursements shall be retained by
City as its sole property.
To the extent that the rights established in this paragraph involves forfeiture, the rights of
City hereunder must be strictly interpreted in favor of City, the Party for whose benefit the right
of reverter is created. The right of reverter and other rights established in this paragraph are to
be interpreted in light of the fact that Grantor will convey the Property to Grantee for
development of the Project as set forth herein and not for speculation.
(6) Grantee covenants and agrees for itself, its successors, its assigns, and all persons
claiming under or through them that there shall be no discrimination against or segregation of
any person or group of persons on account of sex, sexual orientation, marital status, race, color,
creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Property, nor shall Grantee itself or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the
land.
(7) All deeds, leases or contracts made relative to the Property, improvements thereon, or any
part thereof, shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
Attachment No. 1
1257
1. In deeds: “The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of any basis listed in subdivision (a) or (d)
of Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed,
nor shall the grantee or any person claiming under or through him or her, establish
or permit any practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land.”
Notwithstanding the paragraph, with respect to familial status, paragraph (1) shall
not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall also apply to the above
paragraph.
2. In leases: “The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the
following conditions:
That there shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the premises herein leased
nor shall the lessee himself or herself, or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased.”
Notwithstanding the above paragraph, with respect to familial status, paragraph
(2) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (2) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11, and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
Attachment No. 1
1268
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the above paragraph.
3. In contracts entered into by Grantee relating to the sale, transfer, or leasing of land
or any interest therein acquired by Grantee within any survey area of
redevelopment project the foregoing provisions in substantially the forms set forth
shall be included and the contracts shall further provide that the foregoing
provisions shall be binding upon and shall obligate the contracting party or parties
and any subcontracting party or parties, or other transferees under the instrument.
(8) All conditions, covenants and restrictions contained in this Grant Deed shall be covenants
running with the land, and shall, in any event, and without regard to technical classification or
designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for
the benefit and in favor of, and enforceable by City and its successors and assigns, against
Grantee, its successors and assigns, to or of the Property conveyed herein or any portion thereof
or any interest therein, and any party in possession or occupancy of said Property or portion
thereof.
(9) The covenants contained in this Grant Deed shall remain in effect as follows:
(a) The covenants pertaining to the Improvements shall remain in effect for forty-five
(45) years as set forth in paragraph 2 above, provided, however, that after twenty-
five (25) years, such covenants shall be deemed amended to reflect any changes to
the Project Entitlements that may be approved by City.
(b) The covenants pertaining to Change in Control of Developer and Transfer, shall
remain in effect with respect to Transfers of portions of the Site that include the
Parking Garage, open space and Transit Plaza for three (3) years following the
issuance of the Release of Construction Covenants and with respect to other
portions of the Site shall terminate upon issuance of the Release of Construction
Covenants.
(c) The covenants pertaining to maintenance of the Property and all Improvements
thereon set forth in paragraph 3, above, shall remain in effect for forty-five (45)
years, provided, however, that after twenty-five (25) years, such covenants shall
be deemed amended to reflect any changes to the Project Entitlements that may be
approved by City.
(d) The covenants against discrimination set forth in paragraph 7, above, shall remain
in effect in perpetuity.
(10) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees that:
(a) In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that City shall be deemed a beneficiary of the agreements and
covenants provided hereinabove both for and in its own right and also for the
purposes of protecting the interests of the community. City shall have the right, in
Attachment No. 1
1279
the event of any breach of any such agreement or covenant, to exercise all the
rights and remedies, and to maintain any actions at law or suit in equity or other
proper proceedings to enforce the curing of such breach of agreement or
covenant.
(b) Grantor hereby assigns to City the rights of Grantor to enforce the covenants set
forth in in this Grant Deed.
(11) No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or
charge of any mortgage or deed of trust or security interest permitted by paragraph (4)(b) of this
Grant Deed; provided, however, that any subsequent owner of the Property shall be bound by
such remaining covenants, conditions, restrictions, limitations, and provisions, whether such
owner’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
(12) None of the terms, covenants, agreements or conditions heretofore agreed upon in writing
in other instruments between the parties to this Grant Deed with respect to obligations to be
performed, kept or observed by Grantee or Grantor in respect to said Property or any part thereof
after this conveyance of said Property shall be deemed to be merged with this Grant Deed until
such time as a Release of Construction Covenants issued by City is recorded for the Property, or
such part thereof, conveyed hereby.
(13) The covenants contained in this Grant Deed shall be construed as covenants running with
the land and not as conditions which might result in forfeiture of title, except for the covenant
and condition contained in paragraph (5) of this Grant Deed.
[signatures on following page]
[remainder of page intentionally left blank]
Attachment No. 1
12810
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be executed on
their behalf by their respective officers hereunto duly authorized this ____ day of ___________,
201__.
GRANTOR
SUCCESSOR AGENCY TO THE CULVER CITY
REDEVELOPMENT AGENCY, a public body,
corporate and politic
Date: _________________ By:
John Nachbar
Executive Director
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
KANE, BALLMER & BERKMAN
By: _______________________ By: ____________________________________
Murray O. Kane Sol Blumenfeld
Agency General Counsel Assistant Executive Director
Grantee hereby accepts the written deed, subject to all of the matters hereinbefore set forth.
GRANTEE
LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation
Date: ________________ By: ___________________________________
Thomas W. Wulf
Senior Vice President
Attachment No. 1
12911
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
130
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
131ATTACHMENT NO. 5-B
CITY GRANT DEED
[See Attached]
Attachment No. 1
132ATTACHMENT NO. 5-B
CITY GRANT DEED
OFFICIAL BUSINESS
Document entitled to free recording
per Government Code Section 27383
RECORDING REQUESTED BY:
CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Community Development Director
WHEN RECORDED MAIL TO AND SEND
TAX STATEMENTS TO:
LOWE ENTERPRISES REAL ESTATE GROUP
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Thomas W. Wulf, Senior Vice President
SPACE ABOVE THIS LINE FOR RECORDING USE
Parcel Number:
Separate Statement of tax due submitted
per Revenue and Taxation Code Section 11932
GRANT DEED
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, the CITY OF CULVER CITY, a municipal corporation, herein called
“Grantor”, acting to carry out the Redevelopment Plan under the Community Redevelopment
Law of the State of California, hereby grants to LOWE ENTERPRISES REAL ESTATE
GROUP, a California corporation, herein called “Grantee”, the real property, hereinafter
referred to as the “Property”, described in the document attached hereto, labeled Exhibit A and
incorporated herein by this reference.
(1) Said Property is conveyed in accordance with and subject to the Redevelopment Plan,
which was approved and adopted on November 23, 1998 by Ordinance No. 98-014 of the City
Council of Grantor, as amended, and the Implementation Agreement (the “Implementation
Agreement”) entered into by and between Grantor, Grantee and the SUCCESSOR AGENCY
TO THE CULVER CITY REDEVELOPMENT AGENCY, a public body, corporate and politic
(“Successor Agency”) as of ______________________, 2014, both of which documents are
public records on file in the offices of the City Clerk of Grantor. “Implementation Agreement”
Attachment No. 1
1332
as used herein shall mean, refer to and include the Implementation Agreement, as well as any
riders, exhibits, addenda, implementation agreements, amendments and attachments thereto or
other documents expressly incorporated by reference in the Implementation Agreement. Any
capitalized term not herein defined shall have the same meaning as set forth in the
Implementation Agreement. The Implementation Agreement is hereby incorporated herein by
this reference.
(2) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees to (i) construct the Project as required by
the Implementation Agreement; (ii) devote the Property to the uses required by, and use the
Property and conduct all activities undertaken pursuant to the Implementation Agreement in
conformity with, all applicable provisions of the Redevelopment Plan, the Comprehensive Plan
approved by Grantor pursuant to the PD Zone Requirements, the Project Entitlements, all
conditions of approval of the Project Entitlements, the Culver City Municipal Code and any
other applicable Governmental Requirements; (iii) use such property in conformity with and
abide by the covenants and restrictions set forth in the Successor Agency Grant Deed and this
Grant Deed; and (iv) perform all obligations of Grantee the set forth in the Participation
Agreement (Attachment No. 7 to the Implementation Agreement).
(3) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees to (i) maintain the Property and all
Improvements thereon, including landscaping, lighting and signage, in good condition, free of
debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan and with
all applicable provisions of the Culver City Municipal Code and in accordance with the
“Maintenance Standards,” as hereinafter defined; (ii) contract with and hire licensed and
qualified personnel or contractors to perform the maintenance work, including the provision of
labor, equipment, materials, support facilities, and any and all other items necessary to comply
with the requirements of the Implementation Agreement; (iii) obtain the prior written approval of
Grantor of any declaration of easements and restrictions or any reciprocal easement agreement
entered into by and between Grantee and the owner or owners of other privately owned portions
of the Property, and obtain the prior written approval of Grantor of any amendment to any such
declaration or reciprocal easement agreement; and (iv) comply with the following standards
(“Maintenance Standards”) and to cause its contractors and subcontractors to adhere to the
Maintenance Standards:
(a) The Maintenance Standards shall apply to all buildings, signage, lighting,
landscaping, irrigation of landscaping, architectural elements identifying the
Property and any and all other common area of the Improvements on the Property.
The Property shall be maintained in conformance and in compliance with the
approved building permit drawings, and reasonable maintenance standards for
similar, neighboring structures, including but not limited to painting and cleaning
of all exterior surfaces and other exterior facades comprising all private
improvements and public improvements to the curbline. The Property shall be
maintained in good condition and in accordance with the custom and practice
generally applicable to comparable developments.
Attachment No. 1
1343
(b) Landscape maintenance shall include, but not be limited to: watering/irrigation;
fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural
appearance and safe road conditions and visibility, and irrigation coverage;
replacement, as needed, of all plant materials; control of weeds in all planters,
shrubs, lawns, ground covers, or other planted areas; and staking for support of
trees.
(c) Clean up maintenance shall include, but not be limited to: maintenance of all
sidewalks, paths and other paved areas in clean and weed free condition;
maintenance of all such areas clear of dirt, mud, trash, debris or other matter
which is unsafe or unsightly; removal of all trash, litter and other debris from
improvements and landscaping prior to mowing; clearance and cleaning of all
areas maintained prior to the end of the day on which the maintenance operations
are performed to ensure that all cuttings, weeds, leaves and other debris are
properly disposed of by maintenance workers.
Grantor agrees to notify Grantee in writing if the condition of the Property does not meet
with the Maintenance Standards specified herein and to specify the deficiencies and the actions
required to be taken by Grantee to cure the deficiencies. Upon notification of any maintenance
deficiency, Grantee shall have thirty (30) Days within which to correct, remedy or cure the
deficiency, unless such deficiency cannot be reasonably corrected, remedied or cured within such
period, in which case, such period shall be extended for such time as is necessary to accomplish
the same provided that Grantee is diligently pursuing such correction, remedy or cure. If the
written notification states the problem is urgent relating to the public health and safety of the
City of Culver City, then Grantee shall have forty-eight (48) hours to commence curing the
problem. In the event Grantee does not maintain the Property in the manner set forth herein and
in accordance with the Maintenance Standards specified herein, Grantor shall have, in addition to
any other rights and remedies hereunder, the right to maintain the Property, or to contract for the
correction of such deficiencies, after written notice to Grantee, and Grantee shall be responsible
for the payment of all such out of pocket third party costs incurred by Grantor.
(4) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees that:
(a) The qualifications and identities of Grantee and its members are of particular
concern to Grantor. It is because of those unique qualifications and identities that
Grantor has entered into the Implementation Agreement with Grantee and is
imposing restrictions upon any Change of Control of Grantee and any Transfer
which is not a Permitted Transfer until Grantor issues the Release of Construction
Covenants. Grantee represents that it is purchasing the Property to Develop and
Cause Construction of the Project on the Property, and that it is not purchasing the
Property for purposes of resale of the Property to a third party prior to the
Completion of construction of the Project. Accordingly, Grantee agrees not to
Transfer the Property prior to the Completion of construction of the Project. No
voluntary or involuntary successor in interest to Grantee shall acquire any rights
Attachment No. 1
1354
or powers in the Property or under the Implementation Agreement except as
expressly set forth herein.
(i) Without the prior written approval of Grantor, which approval may be
granted or withheld in the discretion of Grantor, but which approval shall
not be unreasonably withheld or delayed, Grantee shall not (i) Transfer all
or any part of its interest in or rights under the Implementation Agreement
or the Property other than a Permitted Transfer, or (ii) effect any Change
of Control. Any Permitted Transfer shall require notice to, but not the
consent of, Grantor.
(ii) Notwithstanding the foregoing, if control or ownership of Grantee must be
changed in order to obtain financing to construct the Project, Grantor shall
grant or withhold its approval in its reasonable discretion provided that
Robert Lowe, Sr., Robert Lowe, Michael Lowe, Richard Newman and/or
Thomas Wulf or other employees of Grantee reasonably approved by
Grantor, remain the individuals exercising management control over the
Project and the implementation of the Implementation Agreement (subject
to oversight by Grantee’s or Grantee’s parent entity’s Board of Directors)
and remain Grantee’s primary contact with Grantor.
(iii) Any Transfer or Change of Control in violation hereof will constitute a
breach and entitle Grantor to use any remedy available to it at law or
equity, including, but not limited to, the right to terminate the
Implementation Agreement.
(iv) The restrictions on a Change of Control set forth herein shall terminate 5
years subsequent to the issuance of the Release of Construction
Covenants.
(b) Mortgages and deeds of trust through an Institutional Lender for the purpose of
securing loans of funds are to be used for (i) financing the acquisition,
predevelopment or development of the Property or other costs of development of
the Property, (ii) financing the construction of the Improvements (including
architecture, engineering, legal, and related direct costs as well as indirect hard
and soft costs such as real property taxes, insurance premiums, closing costs, loan
carrying costs, costs of financing and overhead) on or in connection with the
Property, or (iii) any other purposes necessary and appropriate in connection with
the Project under the Implementation Agreement; and shall be permitted before
issuance of the Release of Construction Covenants only with Grantor’s prior
written approval in accordance with Section 206 of the Implementation
Agreement. Grantor shall cooperate with Grantee and will in good faith consider
all reasonable requests by an Institutional Lender to modify the Implementation
Agreement. Any mortgage or deed of trust or other grant of a security interest in
the Property shall constitute a Transfer for purposes of the Implementation
Agreement. The words “mortgage” and “trust deed” solely as used herein shall
Attachment No. 1
1365
include sale and lease-back and other means of financing which involve the
granting of a security interest.
(5) Grantee, for itself and on behalf of its successors and assigns to all or any portion of the
Property, or any interest therein, covenants and agrees that:
Grantor shall have the additional right, at its option, to re-enter and take possession of the
Property, with all improvements thereon, and revest in Grantor the estate theretofore conveyed to
Grantee if, after Closing of title and prior to recordation of the Release of Construction
Covenants, Grantee (or its successors in interest):
(a) Fails to proceed with the construction of Improvements as required by the
Implementation Agreement for a period of three (3) months, plus any extension as
may be granted pursuant to Section 706 of the Implementation Agreement, after
written notice thereof from Grantor.
(b) Abandons or substantially suspends construction of improvements for a period of
three (3) months after written notice of such abandonment or suspension from
Grantor.
(c) Transfers or suffers any involuntary Transfer of the Property, or any part thereof,
in violation of the Implementation Agreement.
Such right to repurchase, re-enter and repossess shall be subject to and be limited by and
shall not defeat, render invalid, or limit: (i) any mortgage, deed or trust or other security
instrument permitted by the Implementation Agreement; or (ii) any rights or interests
provided in the Implementation Agreement for the protection of the holder of such mortgages,
deeds of trust or other security instruments.
Upon issuance of a Release of Construction Covenants for the Improvements to be
constructed on any applicable portion of the Property, Grantor’s right to reenter, terminate and
revest as to such portion of the Property shall terminate, and Grantor shall only be entitled to
reenter, terminate and revest with respect to the other parcels within the Property for which no
Release of Construction Covenants has been issued.
Upon the revesting in Grantor of title to the Property as provided herein, Grantor shall
use its best efforts to resell the Property or part thereof as soon and in such manner as Grantor
shall find feasible to a qualified and responsible party or parties (as determined by Grantor), who
will assume the obligation of making or completing the Improvements, or such improvements in
their stead as shall be satisfactory to Grantor and in accordance with the uses specified for such
Property or part thereof in the Implementation Agreement. Upon such resale of the Property, the
proceeds thereof shall be applied:
(x) First, to reimburse Grantor on its own behalf or on behalf of the Successor
Agency for all reasonable and necessary costs and expenses incurred by Grantor,
including but not limited to, salaries of personnel employed or utilized in
connection with the recapture, management and resale of the Property or part
thereof (but less any income derived by Grantor from the Property or part thereof
Attachment No. 1
1376
in connection with such management); all taxes, assessments and water and sewer
charges with respect to the Property or part thereof (or, in the event the Property is
exempt from taxation or assessment or such charges during the period of
ownership to such taxes, assessments or charges (as determined by Grantor
assessing official) as would have been payable if the Property were not so
exempt); any payments made or necessary to be made to discharge to prevent
from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of Grantee, its successors or transferees; any
expenditures made or obligations incurred with respect to the making or
completion of the improvements or any part thereof on the Property or part
thereof; and any amounts otherwise owing Grantor by Grantee and its successor
or transferee; and
(y) Second, to reimburse Grantee, its successor or transferee up to the amount equal
to (1) the sum of the purchase price paid to Grantor by Grantee for the Property;
(2) the costs incurred for the development of the Property and for the
improvements existing on the Property at the time of the re-entry and
repossession, less (3) any gains or income withdrawn or made by Grantee from
the Property or the improvements thereon; and
(z) Finally, any balance remaining after such reimbursements shall be retained by
Grantor as its sole property.
To the extent that the rights established in this paragraph involves forfeiture, the rights of
Grantor hereunder must be strictly interpreted in favor of Grantor, the Party for whose benefit the
right of reverter is created. The right of reverter and other rights established in this paragraph are
to be interpreted in light of the fact that Grantor will convey the Property to Grantee for
development of the Project as set forth herein and not for speculation.
(6) Grantee covenants and agrees for itself, its successors, its assigns, and all persons
claiming under or through them that there shall be no discrimination against or segregation of
any person or group of persons on account of sex, sexual orientation, marital status, race, color,
creed, religion, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure, or enjoyment of the Property, nor shall Grantee itself or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the Property. The foregoing covenants shall run with the
land.
(7) All deeds, leases or contracts made relative to the Property, improvements thereon, or any
part thereof, shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) In deeds: “The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of any basis listed in subdivision (a) or (d)
Attachment No. 1
1387
of Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed,
nor shall the grantee or any person claiming under or through him or her, establish
or permit any practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land.”
Notwithstanding the paragraph, with respect to familial status, paragraph (1) shall
not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall also apply to the above
paragraph.
(b) In leases: “The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the
following conditions:
That there shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the premises herein leased
nor shall the lessee himself or herself, or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased.”
Notwithstanding the above paragraph, with respect to familial status, paragraph
(2) shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing
in paragraph (2) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10,
51.11, and 799.5 of the Civil Code, relating to housing for senior citizens.
Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the above paragraph.
(c) In contracts entered into by Grantee relating to the sale, transfer, or leasing of land
or any interest therein acquired by Grantee within any survey area of
Attachment No. 1
1398
redevelopment project the foregoing provisions in substantially the forms set forth
shall be included and the contracts shall further provide that the foregoing
provisions shall be binding upon and shall obligate the contracting party or parties
and any subcontracting party or parties, or other transferees under the instrument.
(8) All conditions, covenants and restrictions contained in this Grant Deed shall be covenants
running with the land, and shall, in any event, and without regard to technical classification or
designation, legal or otherwise, be, to the fullest extent permitted by law and equity, binding for
the benefit and in favor of, and enforceable by Grantor, its successors and assigns, against
Grantee, its successors and assigns, to or of the Property conveyed herein or any portion thereof
or any interest therein, and any party in possession or occupancy of said Property or portion
thereof.
(9) The covenants contained in this Grant Deed shall remain in effect as follows:
(a) The covenants pertaining to the Improvements set forth in paragraph 2, above,
shall remain in effect for forty-five (45) years, provided, however, that after
twenty-five (25) years, such covenants shall be deemed amended to reflect any
changes to the Project Entitlements that may be approved by Grantor.
(b) The covenants pertaining to Change in Control of Developer and Transfer, shall
remain in effect with respect to Transfers of portions of the Site that include the
Parking Garage, open space and Transit Plaza for three (3) years following the
issuance of the Release of Construction Covenants and with respect to other
portions of the Site shall terminate upon issuance of the Release of Construction
Covenants
(c) The covenants pertaining to maintenance of the Property and all Improvements
thereon set forth in paragraph 3, above, shall remain in effect for forty-five (45)
years, provided, however, that after twenty-five (25) years, such covenants shall
be deemed amended to reflect any changes to the Project Entitlements that may be
approved by Grantor.
(d) The covenants against discrimination set forth in paragraph 7, above, shall remain
in effect in perpetuity.
(10) In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Grantor shall be deemed a beneficiary of the agreements and covenants
provided hereinabove both for and in its own right and also for the purposes of protecting the
interests of the community. Grantor shall have the right, in the event of any breach of any such
agreement or covenant, to exercise all rights and remedies, and to maintain any actions at law or
suit in equity or other proper proceedings to enforce the curing of such breach of agreement or
covenant.
(11) No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or
charge of any mortgage or deed of trust or security interest permitted by paragraph (4)(b) of this
Grant Deed; provided, however, that any subsequent owner of the Property shall be bound by
Attachment No. 1
1409
such remaining covenants, conditions, restrictions, limitations, and provisions, whether such
owner’s title was acquired by foreclosure, deed in lieu of foreclosure, trustee’s sale or otherwise.
(12) None of the terms, covenants, agreements or conditions heretofore agreed upon in writing
in other instruments between the parties to this Grant Deed with respect to obligations to be
performed, kept or observed by Grantee or Grantor in respect to said Property or any part thereof
after this conveyance of said Property shall be deemed to be merged with this Grant Deed until
such time as a Release of Construction Covenants issued by Grantor is recorded for the Property,
or such part thereof, conveyed hereby.
(13) The covenants contained in this Grant Deed shall be construed as covenants running with
the land and not as conditions which might result in forfeiture of title, except for the covenant
and condition contained in paragraph (5) of this Grant Deed.
[signatures on following page]
[remainder of page intentionally left blank]
Attachment No. 1
14110
IN WITNESS WHEREOF, Grantor and Grantee have caused this instrument to be executed on
their behalf by their respective officers hereunto duly authorized this ____ day of ___________,
201__.
GRANTOR
CITY OF CULVER CITY, a municipal corporation
Date: _________________ By:
John Nachbar
City Manager
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
KANE, BALLMER & BERKMAN
By: _______________________ By: ____________________________________
Murray O. Kane Sol Blumenfeld
City Special Counsel Community Development Director
Grantee hereby accepts the written deed, subject to all of the matters hereinbefore set forth.
GRANTEE
LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation
Date: ________________ By: ___________________________________
Thomas W. Wulf
Senior Vice President
Attachment No. 1
14211
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
143
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
144ATTACHMENT NO. 5-C
TRANSFER OF EASEMENT AREA DOCUMENTS
[See Attached]
Attachment No. 1
145
1
ATTACHMENT NO. 5-C
TRANSFER OF EASEMENT AREA DOCUMENTS
OFFICIAL BUSINESS
Document entitled to free recording
per Government Code Section 27383
RECORDING REQUESTED BY:
CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Community Development Director
WHEN RECORDED MAIL TO AND SEND
TAX STATEMENTS TO:
LOWE ENTERPRISES REAL ESTATE GROUP
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Thomas W. Wulf, Senior Vice President
SPACE ABOVE THIS LINE FOR RECORDING USE
Parcel Number:
Separate Statement of tax due submitted
per Revenue and Taxation Code Section 11932
TRANSFER OF EASEMENT AREA DOCUMENTS ASSIGNMENT AGREEMENT
This Transfer of Easement Area Documents Assignment Agreement (this “Agreement”),
dated as of ______________________, 201__, is entered into by and between, on the one hand,
the CITY OF CULVER CITY, a municipal corporation (“City”) and the SUCCESSOR
AGENCY TO THE CULVER CITY REDEVELOPMENT AGENCY, a public body, corporate
and politic (“Successor Agency”) (collectively, the “Assignor”) and, on the other hand, LOWE
ENTERPRISES REAL ESTATE GROUP, a California corporation (“Assignee”), with reference
to the following facts:
RECITALS
A. Assignor and Assignee entered into that certain Implementation Agreement dated
______________________, 2014, a public record on file in the office of the City Clerk
Attachment No. 1
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2
(the “Implementation Agreement”), relating to, among other things, that certain real
property located in the County of Los Angeles, State of California and legally described
in Exhibit A attached hereto and incorporated herein by this reference (the “Property”).
“Implementation Agreement” as used herein shall mean, refer to and include the
Implementation Agreement, as well as any riders, exhibits, addenda, implementation
agreements, amendments and attachments thereto or other documents expressly
incorporated by reference in the Implementation Agreement. Any capitalized term not
herein defined shall have the same meaning as set forth in the Implementation
Agreement. The Implementation Agreement is hereby incorporated herein by this
reference.
B. As more particularly set forth in the Implementation Agreement, Assignor obtained
certain rights and obligations in and to the Parking License Agreement, the Construction
License Agreement, the Perpetual Easement Agreement, the Reciprocal Easement
Agreement and the LACMTA Parcel Private Use Lease (collectively, the “Easement
Area Documents”). Assignor’s respective rights and obligations in and to the Easement
Area Documents (excluding therefrom (i) any obligations thereunder of Successor
Agency with respect to relocation and maintenance of EXPO Station parking to the Ince
Parking Structure and (ii) any rights of City and/or the public to use during non-peak
hours the Temporary Parking and EXPO Spaces pursuant to the City Parking License)
shall collectively be referred to herein as the “Easement Area Documents Rights and
Obligations”.
C. Assignor hereby desires to assign the Easement Area Documents Rights and Obligations
to Assignee, and Assignee desires to assume the Easement Area Documents Rights and
Obligations from Assignor.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
AGREEMENT
1. Assignor hereby assigns all of its right, title and interest in and to the Easement Area
Documents (other than any rights of City and/or the public to use during non-peak hours
the Temporary Parking and EXPO Spaces pursuant to the City Parking License) to
Assignee, and Assignee hereby accepts such assignment and assumes all of the Easement
Area Documents Rights and Obligations of Assignor under the Easement Area
Documents arising and accruing from and after the date hereof and agrees to be bound
thereby in accordance with the terms thereof. This Agreement is intended to be an
assignment in accordance with Section 14.12 of the Perpetual Easement Agreement.
2. Assignee shall assume and perform all executory obligations of Assignor pursuant to the
Easement Area Documents accruing from and after the date hereof, without exception,
other than any obligations thereunder of Successor Agency with respect to relocation and
Attachment No. 1
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3
maintenance of EXPO Station parking to the Ince Parking Structure.
3. Assignee shall indemnify, defend and hold Assignor harmless from and against any and
all claims, damages, losses, liabilities and costs, including, without limitation, reasonable
attorneys’ fees (including, without limitation, the reasonable value of the services
rendered by the City Attorney Office), costs and disbursements, to the extent arising from
or relating to any failure by Assignee, Assignee’s Affiliates or any of their respective
employees, officers, agents, contractors, guests or invitees to comply with any or all of
the assumed Easement Area Documents Rights and Obligations. The indemnities set
forth in this Paragraph 3 shall survive the expiration or earlier termination of this
Agreement.
4. Assignee shall not make any sale, transfer, conveyance or assignment of the Property (a
“Transfers”), the Easement Area and/or the Easement Area Documents Rights and
Obligations or any part thereof or the buildings or structures thereon, without the prior
written approval of City, except as expressly permitted by the Implementation
Agreement. Assignee shall not place or suffer to be placed on the Property any lien or
encumbrance other than any mortgages, deeds of trust, or any other form of conveyance
permitted by the Implementation Agreement. Assignee shall not enter into any such
conveyance for financing without prior written approval of City, which approval City
agrees to give if any such conveyance is permitted by the Implementation Agreement and
with a responsible financial or lending institution or other acceptable person or entity.
5. City shall have the right at its option to enter and take possession of the Property, the
Easement Area and/or the Easement Area Documents Rights and Obligations hereby
conveyed (or portion thereof) with all improvements thereon, and to terminate and revest
in City the assigned rights in the Property, the Easement Area and/or the Easement Area
Documents Rights and Obligations hereby conveyed (or portion thereof) to Assignee if
Assignee (or its successors in interest):
(a) fails to proceed with the construction of Improvements as required by the
Implementation Agreement for a period of three (3) months, plus any extension as
may be granted under the Implementation Agreement, after written notice thereof
from City.
(b) abandons or substantially suspends construction of improvements for a
period of three (3) months after written notice of such abandonment or suspension
from the City.
(c) Transfers or suffers any involuntary Transfer of the Property, or any part
thereof, in violation of the Implementation Agreement.
Assignee agrees to cooperate with Assignor in connection with such termination and
revesting, by, inter alia, promptly executing, delivering and recording any and all
Attachment No. 1
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4
documents which may be reasonably necessary, helpful or appropriate in order to carry
out such termination and revesting.
6. The right to reenter, repossess, terminate and revest shall be subject to and be limited by
and shall not defeat, render invalid, or limit (i) any mortgage or deed of trust or other
security interest permitted by Paragraph 4 of this Agreement or (ii) any rights or interests
provided for the protection of the holders of such mortgages, deeds of trust, or other
security interests.
7. To the extent that this right of reverter involves a forfeiture, it must be strictly interpreted
against Assignor, the party for whose benefit it is created. This right is to be interpreted
in light of the fact that Assignor hereby makes the assignments herein to Assignee for
development and not for speculation in undeveloped land.
8. The principal address of Assignee for purposes of the Easement Area Documents is as
follows:
LOWE ENTERPRISES REAL ESTATE GROUP
11777 San Vicente Boulevard, Suite 900
Los Angeles, California 90049
Attention: Thomas W. Wulf, Senior Vice President
9. Assignee covenants and agrees for itself, its successors, its assigns, and all persons
claiming under or through them that there shall be no discrimination against or
segregation of any person or group of persons on account of sex, sexual orientation,
marital status, race, color, creed, religion, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall
Assignee itself or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees
in the Property. The foregoing covenants shall run with the land.
10. All deeds, leases or contracts made relative to the Property, improvements thereon, or any
part thereof, shall contain or be subject to substantially the following nondiscrimination
or nonsegregation clauses:
(i) In deeds: “The grantor herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of any basis listed in subdivision (a) or (d)
of Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease,
transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed,
Attachment No. 1
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5
nor shall the grantor or any person claiming under or through him or her, establish
or permit any practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The
foregoing covenants shall run with the land.”
Notwithstanding the paragraph, with respect to familial status, subparagraph (1)
shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the Government Code. With respect to familial status, nothing in
paragraph (1) shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11,
and 799.5 of the Civil Code, relating to housing for senior citizens. Subdivision
(d) of Section 51 and Section 1360 of the Civil Code and subdivisions (n), (o),
and (p) of Section 12955 of the Government Code shall also apply to the above
paragraph.
(ii) In leases: “The lessee herein covenants by and for himself or herself, his or her
heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the
following conditions:
That there shall be no discrimination against or segregation of any person or
group of persons, on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections
12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section
12955, and Section 12955.2 of the Government Code, in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the premises herein leased
nor shall the lessee himself or herself, or any person claiming under or through
him or her, establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use, or occupancy,
of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased.”
Notwithstanding the above paragraph, with respect to familial status,
subparagraph (ii) shall not be construed to apply to housing for older persons, as
defined in Section 12955.9 of the Government Code. With respect to familial
status, nothing in paragraph (2) shall be construed to affect Sections 51.2, 51.3,
51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for senior
citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and
subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the above paragraph.
(iii) In contracts entered into by Assignee relating to the sale, transfer, or leasing of
land or any interest therein acquired by Assignee within any survey area of
redevelopment project the foregoing provisions in substantially the forms set forth
Attachment No. 1
150
6
shall be included and the contracts shall further provide that the foregoing
provisions shall be binding upon and shall obligate the contracting party or parties
and any subcontracting party or parties, or other transferees under the instrument.
11. All conditions, covenants and restrictions contained in this Agreement shall be covenants
running with the land, and shall, in any event, and without regard to technical
classification or designation, legal or otherwise, be, to the fullest extent permitted by law
and equity, binding for the benefit and in favor of, and enforceable by City, its successors
and assigns, against Assignee, its successors and assigns, to or of the Property, the
Easement Area and/or the Easement Area Documents Rights and Obligations assigned
herein or any portion thereof or any interest therein, and any party in possession or
occupancy of said Property, the Easement Area and/or the Easement Area Documents
Rights and Obligations or portion thereof.
12. All covenants in this Agreement shall remain in perpetuity, except as otherwise expressly
provided herein.
13. In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that City shall be deemed a beneficiary of the agreements and
covenants provided hereinabove both for and in its own right and also for the purposes of
protecting the interests of the community. All covenants without regard to technical
classification or designation shall be binding for the benefit of City, and such covenants
shall run in favor of City for the entire period during which such covenants shall be in
force and effect, without regard to whether City is or remains an owner of any land or
interest therein to which such covenants relate. City shall have the right, in the event of
any breach of any such agreement or covenant, to exercise all the rights and remedies,
and to maintain any actions at law or suit in equity or other proper proceedings to enforce
the curing of such breach of agreement or covenant.
14. No violation or breach of the covenants, conditions, restrictions, provisions or limitations
contained in this Agreement shall defeat or render invalid or in any way impair the lien or
charge of any mortgage or deed of trust or security interest permitted by Paragraph 4 of
this Agreement; provided, however, that any subsequent owner of the Property shall be
bound by such remaining covenants, conditions, restrictions, limitations, and provisions,
whether such owner’s title was acquired by foreclosure, deed in lieu of foreclosure,
trustee’s sale or otherwise.
15. The covenants contained in this Agreement shall be construed as covenants running with
the land and not as conditions which might result in forfeiture of title, except for the
covenant and condition contained in Paragraph 5 of this Agreement.
16. This Agreement is made for the sole benefit and protection of the parties hereto and their
successors and assigns, and no other person or persons shall have any right of action or
right to rely hereon. As this Agreement contains all the terms and conditions agreed upon
Attachment No. 1
151
7
between the parties, no other agreement regarding the subject matter thereof shall be
deemed to exist or bind any party unless in writing and signed by the party to be charged.
17. Successor Agency hereby assigns to City the rights of Successor Agency under this
Agreement to enforce the covenants set forth in this Agreement.
18. This Agreement may be executed in several duplicate originals, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument, and shall become effective upon execution by the parties, as indicated by the
signatures below. The signature pages of one or more counterpart copies may be
removed from such counterpart copies and all attached to the same copy of this
Agreement, which, with all attached signature pages, shall be deemed to be an original
agreement. When fully executed, the date of this Agreement shall be the later of the
dates indicated below.
19. This Agreement shall be governed by the laws of the State of California.
20. If any term or provision of this Agreement, the deletion of which would not adversely
affect the receipt of any material benefit by any party hereunder, shall be held by a court
of competent jurisdiction to be invalid or unenforceable, then the remainder of this
Agreement shall not be affected thereby and each other term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the
intention of the parties hereto that in lieu of each clause or provision of this Agreement
that is illegal, invalid or unenforceable, there be added as a part of this Agreement an
enforceable clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible.
21. Time is expressly declared to be of the essence in this Agreement.
22. No provision in this Agreement is to be interpreted for or against either party because that
party or its legal representatives drafted such provision.
23. The parties hereto hereby agree to execute such other documents and to take such other
action as may be reasonably necessary to further the purposes of this Agreement.
24. The parties hereto further represent and declare that they carefully read this Agreement
and know the contents thereof, and that they sign the same freely and voluntarily.
25. Each party hereto hereby represents that the person executing this Agreement on behalf
of said party has full authority to do so and to bind the party to perform pursuant to the
terms and conditions of this Agreement.
[remainder of this page intentionally left blank]
Attachment No. 1
152
8
IN WITNESS WHEREOF, the parties have caused this instrument to be executed on
their behalf by their respective officers hereunto duly authorized this ____ day of ___________,
201__.
ASSIGNOR
CITY
CITY OF CULVER CITY, a municipal corporation
Date: _______________ By: ___________________________________
John Nachbar
City Manager
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
KANE, BALLMER & BERKMAN
By: _______________________ By: ____________________________________
Murray O. Kane Sol Blumenfeld
City Special Counsel Community Development Director
SUCCESSOR AGENCY
SUCCESSOR AGENCY TO THE CULVER CITY
REDEVELOPMENT AGENCY, a public body,
corporate and politic
Date: _______________ By: ___________________________________
John Nachbar
Executive Director
APPROVED AS TO FORM: APPROVED AS TO CONTENT:
KANE, BALLMER & BERKMAN
By: _______________________ By: ____________________________________
Murray O. Kane Sol Blumenfeld
Agency General Counsel Assistant Executive Director
[signatures continue on following page]
Attachment No. 1
153
9
ASSIGNEE
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
Date: ________________ By: ___________________________________
Thomas W. Wulf
Senior Vice President
Attachment No. 1
154
10
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
155
11
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
156
12
CONSENT TO TRANSFER OF EASEMENT AREA DOCUMENTS ASSIGNMENT
AGREEMENT
In accordance with Section 14.12 of the Perpetual Easement Agreement and in reliance
upon the assumption by LOWE ENTERPRISES REAL ESTATE GROUP, a California
corporation, as Assignee (“Assignee”), of all Easement Area Documents Rights and Obligations
pursuant to the foregoing Transfer of Easement Area Documents Assignment Agreement, the
LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
(“LACMTA”) does hereby consent to and approve of the assignment of the Easement Area
Documents Rights and Obligations by the CITY OF CULVER CITY, a municipal corporation
(“City”) and the SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT
AGENCY, a public body, corporate and politic (“Successor Agency”), collectively, as Assignor,
to Assignee. Therefore, City and Successor Agency are hereby relieved and released from the
Easement Area Documents Rights and Obligations.
“LACMTA”
LOS ANGELES COUNTY METROPOLITAN
TRANSPORTATION AUTHORITY
By: ________________________________
Name: _____________________________
Title: ______________________________
Attachment No. 1
157
13
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
158
14
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
159ATTACHMENT NO. 6
RELEASE OF CONSTRUCTION COVENANTS
[See Attached]
Attachment No. 1
160
Page 1 of 3
ATTACHMENT NO. 6
RELEASE OF CONSTRUCTION COVENANTS
OFFICIAL BUSINESS
Document entitled to free recording
per Government Code Section 27383
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Community Development Director
SPACE ABOVE THIS LINE FOR RECORDING USE
Parcel Number:
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (this “Release”) is
hereby made as of this day of , 201__, by the CITY OF CULVER CITY, a
municipal corporation (“City”) in favor of LOWE ENTERPRISES REAL ESTATE
GROUP, a California corporation (“Developer”).
RECITALS
WHEREAS, City, the SUCCESSOR AGENCY TO THE CULVER CITY
REDEVELOPMENT AGENCY, a public body, corporate and politic, and Developer
entered into that certain Implementation Agreement dated ______________________,
2014, a public record on file in the office of the City Clerk (the “Implementation
Agreement”), relating to, among other things, that certain real property located in the
County of Los Angeles, State of California and legally described in Exhibit A attached
hereto and incorporated herein by this reference (the “Property”). “Implementation
Agreement” as used herein shall mean, refer to and include the Implementation
Agreement, as well as any riders, exhibits, addenda, implementation agreements,
amendments and attachments thereto or other documents expressly incorporated by
reference in the Implementation Agreement. Any capitalized term not herein defined
shall have the same meaning as set forth in the Implementation Agreement. The
Implementation Agreement is hereby incorporated herein by this reference; and
WHEREAS, in accordance with and pursuant to Section 413 of the
Implementation Agreement, upon notice from Developer of the completion of the
construction of the Improvements, City shall issue for recordation against the Property a
Attachment No. 1
161Page 2 of 3
Release of Construction Covenants acknowledging Developer’s satisfactory completion
of the construction of the Improvements in accordance with the Implementation
Agreement; and
WHEREAS, Developer has satisfactorily completed the construction of the
Improvements as required by the Implementation Agreement and has requested that City
issue this Release; and
WHEREAS, City has inspected and determined that the construction required by
the Implementation Agreement has satisfactorily been completed and now desires to
issue this Release pursuant to the terms and conditions of the Implementation Agreement.
NOW THEREFORE, it is hereby acknowledged and certified by City that:
1. The construction of the Improvements has been fully and satisfactorily
performed and completed in accordance with the Implementation Agreement.
2. After the recordation of this Release, any person or entity then owning or
thereafter purchasing, or otherwise acquiring any interest in the Property will not
(because of such ownership, purchase, or acquisition) incur any obligation or liability
under the Implementation Agreement to construct the Improvements; however, such
party shall be bound by any and all of the Implementation Agreement’s covenants,
conditions, and restrictions concerning the Property which survive the recordation of this
Release.
3. Nothing contained in this instrument shall modify any provisions of the
Implementation Agreement.
4. This Release is not a notice of completion as referred to in Section 3093 of
the California Civil Code.
[signatures on following page]
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Attachment No. 1
162Page 3 of 3
IN WITNESS WHEREOF, City has executed this Release as of the date set
forth above.
“CITY”
CITY OF CULVER CITY,
a municipal corporation
By: ________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Sol Blumenfeld
Community Development Director
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ________________________________
Carol Schwab
City Attorney
By: ________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
Attachment No. 1
163
State of California )
)
County of Los Angeles )
On __________________, 201__ before me, ______________________(here insert name of the
officer), 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 of Notary Public
[Seal]
Attachment No. 1
164
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
165ATTACHMENT NO. 7
PARTICIPATION AGREEMENT
[See Attached]
Attachment No. 1
166 1
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Section 6103
Recording Requested by
and when Recorded Return to:
CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232
Attention:
_________________________________________________________________
SPACE ABOVE THIS LINE FOR RECORDER'S USE
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT (the “Participation Agreement”) is
entered into by and between the THE CITY OF CULVER CITY, a municipal corporation
and charter city of the State of California (the "City"), and LOWE ENTERPRISES
REAL ESTATE GROUP, a California corporation (the "Developer").
The City and Developer hereby agree as follows:
1. PURPOSE OF PARTICIPATION AGREEMENT
a. The City, the Successor Agency to the Culver City Redevelopment
Agency and Developer have heretofore entered into that certain Implementation
Agreement dated __________, 2014, (the "Implementation Agreement”) concerning the
sale, transfer, assignment and development of that certain real property described and
referred to in the Implementation Agreement as the Site. The Site is legally described in
“Exhibit A” attached hereto, incorporated herein by this reference and made a part
hereof. A true and correct copy of the Implementation Agreement is on file as a public
record in the office of the City Clerk of the City.
b. Pursuant to the Implementation Agreement and concurrently with the
recordation of this Participation Agreement, the City Parcels were conveyed by the City
to the Developer, the Agency Parcels were conveyed by the Successor Agency to the
Developer, the Transfer of Easement Area Documents was entered into assigning to
Developer certain rights and obligations arising from and related to the Easement Area,
and the LACMTA Parcel Private Use Lease Assignment was entered into assigning the
LACMTA Parcel Private Use Lease to Developer.
c. As additional consideration for the performance by the City of its
obligations under the Implementation Agreement, including without limitation the
Attachment No. 1
167 2
conveyance of the City Parcels to Developer and the Transfer of Easement Area
Documents, in recognition of the City’s past efforts in providing for the development of
the community that has made the Project possible, in order to permit the City to recover
all or part of the expenses incurred which will not otherwise be recovered by the City,
and to participate in the values created in the City Parcels, the Implementation Agreement
provides that Developer shall pay to the City the City Parcels Participation Payments in
amounts equal to twenty percent (20%) profit sharing above twenty five percent (25%) of
Net Return to the Project Equity Investment upon Capital Events following Completion
and Stabilization. The purpose of this Participation Agreement is to set forth as a matter
of record such additional consideration as provided for in the Implementation Agreement.
d. The City incurred substantial public expenses for City Parcels and
Easement Area acquisition, relocation, demolition, clearance, public improvements and
financing costs in connection with the assembly and preparation for development of the
land comprising the City Parcels and the Easement Area.
e. In addition, the City is engaged in activities to renew and revitalize
downtown Culver City in a manner which is intended to further enhance the Site as part
of a revitalized urban community.
f. Accordingly, the parties desire to provide in this Participation Agreement
for the terms and conditions under which the Developer will pay the Participation
Payments to the City.
2. GENERAL DEFINITIONS
All capitalized terms not defined herein shall have the meaning ascribed to them
in the Implementation Agreement. For the purposes of this Participation Agreement, the
following capitalized terms shall have the following respective meanings:
"Affiliate" shall mean any corporation, limited liability company, limited
partnership or other entity which is owned and controlled by __________________. The
term “control” as used in the immediately preceding sentence, shall mean the power to
direct the management or the power to control election of the board of directors. It shall
be a presumption that control with respect to a corporation or limited liability company is
the right to exercise or control, directly or indirectly, more than fifty percent (50%) of the
voting rights attributable to the controlled corporation or limited liability company, and,
with respect to any individual, partnership, trust, other entity or association, control is the
possession, indirectly or directly, of the power to direct or cause the direction of the
management or policies of the controlled entity.
“Bona Fide Arm’s Length Third Party Sale” shall mean the bona fide arm’s-
length sale of the entirety of one or more of the Hotel Parcel, the Retail Space Parcel, the
Apartment Parcel and the Office Parcel by conveyance of fee title from Developer to any
person who is not an Affiliate of Developer.
Attachment No. 1
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“Capital Event” shall mean any of the following: (a) each refinancing of the
Construction Loan or any portion thereof encumbering any Project Component or portion
thereof or interest therein after Stabilization of that Project Component and prior to the
first Bona Fide Arm’s Length Third Party Sale of that Project Component after
Stabilization; and (b) the first Bona Fide Arm’s Length Third Party Sale of a Project
Component after Stabilization.
“City” shall mean the City of Culver City, a municipal corporation and charter
city of the State of California.
"Close of Escrow" shall mean the date on which the City conveyed title to the
City Parcels to the Developer.
“Expiration Date” shall mean for each Project Component the earlier of (i) the
date by which Developer has paid to the City all Participation Payments payable under
this Participation Agreement; and (ii) the date which is ninety-nine (99) years after the
date of recordation of this Participation Agreement.
“Gross Revenues” shall mean, as to the Apartments, Retail Space, and Offices,
Gross Rents, and as to the Hotel, Gross Hotel Revenue.
“Gross Rents” means all revenues of any kind or nature paid to Developer or an
agent of Developer each Operating Year from the rental, lease, licensing, operation, use
or ownership of the Apartments, Retail Space, or Offices and any other revenue of any
kind or nature received by or on behalf of Developer associated with the operation of the
Apartments, Retail Space, or Offices. Gross Rents shall include without limitation the
following:
a The annual total rent and other payments paid by each tenant,
subtenant and licensee (including, without limitation, fees or rents paid for carts,
kiosks and temporary users, antennae licensee fees, and fees paid for signage or
other advertising) to Developer, or their successors or affiliates, whether
designated as base rent, percentage rent, or additional rent, including
Developer’s markup on rent or charges;
(2) payments for any services provided by Developer for tenants;
(3) all amounts from facilities, including but not limited to, laundry
facilities, recreational facilities, health facilities, special activities, furniture
rentals and vending machines;
(4) all amounts for utility payments or pass-throughs, including but not
limited to, electric, water, natural gas, telephone and cable television;
(5) telecommunications revenue, including without limitation, revenue
derived from licenses or rental of rooftop access, and/or riser access;
Attachment No. 1
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(6) interest and other investment income earned on funds received in
connection with operations such funds remain on deposit;
(7) operating expense reimbursements, including amortized capital
maintenance expenses passed back to the tenants as an operating expense;
(8) miscellaneous revenue, including without limitation revenue from
ATM’s, pay phones, internet service etc; and
(9) proceeds of business interruption and similar insurance payable as
a result of any loss;
“Gross Hotel Revenue” shall mean all revenues of any kind or nature paid
to Developer each Operating Year from the rental, lease, licensing, operation, use or
ownership of the Hotel and any other revenue of any kind or nature received by or on
behalf of Developer associated with the operation of the Hotel. Gross Hotel Revenues
shall include without limitation the following:
(1) all revenue of any kind or nature, paid to Developer and/or the
operator of the Hotel for the rental, licensing and/or use of the Hotel guest rooms
and suites (including meeting and banquet rooms and similar areas in the Hotel)
rented, licensed or otherwise provided whether on cash basis or credit by
Developer and/or the operator of the Hotel to third parties, the total revenues
received from the letting of rooms in the Hotel and the letting of Hotel banquet
facilities (including food, beverage and service revenues);
(2) all room payments of any kind, room deposits forfeited, room
cancellation fees;
(3) proceeds of business interruption and similar insurance payable as
a result of loss of room revenues;
(4) fees for use of any Hotel facilities, including without limitation
food, beverage, mini-bar, health club, parking, telephone, internet
usage and rentals for equipment.
(5) payments for any services provided by Developer for room guests;
(6) all amounts from facilities, including but not limited to, laundry
facilities, recreational facilities, health facilities, special activities, furniture
rentals and vending machines;
(7) interest and other investment income earned on funds received in
connection with the operation of the Hotel while such funds remain on deposit;
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(8) miscellaneous revenue, including without limitation revenue from
ATM’s, pay phones, internet service etc.
“Implementation Agreement” shall mean that certain Implementation Agreement
entered into between City and Developer dated __________, 2014, concerning the
conveyance of the City Parcels and Transfer of Easement Area Documents from City to
Developer and the conveyance of the Agency Parcels from the Successor Agency to the
Developer, and the development of the Project by Developer on the Site.
"Developer" shall mean the Developer as of the date hereof, and its successors to
the Site or any portion thereof, or any interest therein.
"Financial Statement" shall mean the audited financial statements of Project
Costs, Gross Revenues and Operating Expenses, prepared at the Developer's expense,
which shall form the basis for determining the Participation Payments for each Operating
Year.
“Hotel” shall mean all hotel buildings, structures, equipment and other
improvements constructed or installed or caused to be constructed or installed by
Developer on the Site pursuant to the Implementation Agreement and Project
Entitlements.
“Hotel Parcel” shall mean that portion of the Site containing the Hotel.
“Apartments” shall mean all apartment buildings, structures, equipment and other
improvements constructed or installed or caused to be constructed or installed by
Developer on the Site pursuant to the Implementation Agreement and Project
Entitlements.
“Apartment Parcel” shall mean shall mean that portion of the Site containing the
Apartments.
“Offices” shall mean all office buildings, structures, equipment and other
improvements constructed or installed or caused to be constructed or installed by
Developer on the Site pursuant to the Implementation Agreement and Project
Entitlements.
“Office Parcel” shall mean shall mean that portion of the Site containing the
Offices.
“Retail Space” shall mean all retail buildings, structures, equipment and other
improvements constructed or installed or caused to be constructed or installed by
Developer on the Site pursuant to the Implementation Agreement and Project
Entitlements.
Attachment No. 1
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“Retail Space Parcel” shall mean shall mean that portion of the Site containing the
Retail Space.
“Net Profit” shall mean and include all of the following for each Project
Component (a) Gross Revenues for each Operating Year after Stabilization less
Operating Expenses for that Operating Year; (b) Net Refinancing Proceeds payable to or
for the credit of Developer from each refinancing of the Project Component after
Stabilization and prior to the first Bona Fide Arm’s Length Third Party Sale of the
Project Component; and (c) Net Sales Proceeds payable to or for the credit of Developer
from the first Bona Fide Arm’s Length Third Party Sale of the Project Component after
Stabilization.
“Net Refinancing Proceeds” shall mean gross refinancing proceeds net of closing
costs, escrow fees, real estate brokerage commissions, repayment of all Outstanding Debt
and Liabilities.
“Net Sale Proceeds” shall mean gross sale proceeds net of closing costs, escrow
fees, real estate brokerage commissions, and repayment of all Outstanding Debt and
Liabilities.
“Outstanding Debt and Liabilities” shall mean the outstanding balance as of the
date of the sale of all obligations secured by an encumbrance or lien on the Parcel or
Parcels involved, including the Construction Loan.
"Operating Expenses" shall mean the following items actually incurred: (a)
ordinary and customary non-capital costs paid in connection with maintenance;
(b) ordinary and customary general, administrative and overhead costs paid as part of the
operation of the improvements involved, including but not limited to: (i) computer
service, supplies and telephone costs; (ii) marketing, advertising and promotion costs,
legal and other fees related to the operation of the improvements; (iii) the cost of any
insurance claims, CAM audits or other disputes; (iv) accounting fees for preparing annual
audits; (v) utility and other costs related to vacant spaces; (vi) bank fees; (vii) the costs of
accounting fees paid in connection with filing reports with or responding to inquiries
from governmental authorities relating to the each Project Component; (c) ordinary and
customary payroll costs incurred in connection with employees working on or for each
Project Component on a full-time or part-time basis; (d) gross receipts tax and annual tax
paid to the State of California as to each Project Component; (e) a reasonable and
customary management fee not to exceed three percent (3%) of Gross Rents (as to the
Apartments, Retail Space or Offices) or Operating Revenues (as to the Hotel); (f) any
deposits paid into reserve and impound accounts; (g) insurance and (h) City taxes;
provided, however, to the extent Developer proposes to include, as part of Operating
Expenses, any such costs which are incurred pursuant to a contract with an Affiliate, such
contract shall first be subject to the reasonable approval of the City Manager or designee.
For purposes of this definition, whether a particular cost or expense is "ordinary
and customary" shall be determined by comparison to expenses of comparable
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developments of comparable age in the Culver City area; provided, any expense listed in
this definition must be for a cost or price that is generally comparable to the industry
standard competitively charged for comparable items in the Culver City area.
Operating Expenses shall not include:
(a) any payments to City under this Participation Agreement;
(b) debt service, including all amounts that are paid by Developer
pursuant to a loan, including costs and requirements such as those which are
conditions precedent to the closing of the loan, monetary reserves, any
prepayments of principal or other charges, participation interest, late charges,
default interest differential, administrative fees, or any other payments of any type
whatsoever made to or for the benefit of the lender in connection with the loan
(and also including commissions paid to brokers for services performed on behalf
of Developer in obtaining the loan, and payments to third parties, such as
appraisers, for services required in order to meet the requirements of a primary
lender or the requirements of a Primary Lender's loan commitment);
(c) capital costs for the construction, improvement, expansion,
alteration or reconstruction of improvements;
(d) expenses paid for with any loan or equity funds disbursed to pay
costs for the initial development and construction of the improvements, including
any cost overruns;
(e) costs incurred as a seller or buyer of Developer's interest in the Site
and the Improvements, and costs incurred in connection with any financing or
refinancing thereof;
(f) local, state and federal income, corporate franchise or excise taxes,
except business and similar taxes that are directly attributable to the operation,
management, leasing, repair and renovation of the improvements;
(g) depreciation, cost recovery and other non-cash items;
(h) costs which shall be borne exclusively by Developer, such as,
without limitation: Relocation Costs or payment for any audit by City due to
underpayment of Participation Payments;
(i) any fees, charges, penalties or interest which are assessed against
Developer as a result of its failure to timely comply with any law, regulation or
contract obligation, including without limitation any delinquent impositions and
attorneys’ fees;
Attachment No. 1
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(j) deposits into any reserve fund until such funds are disbursed from
such reserve fund for payment of an Operating Expense;
(k) any amounts paid to an Affiliate; and
(l) payment of development, architectural and other consultant and
professional fees incurred for the development of the improvements and deferred
for payment.
“Operating Year” shall mean each calendar year; provided, however, that the first
Operating Year to occur after the Completion shall include both (i) the period of time
between the Completion and the first January 1 to occur after the Completion, and (ii) the
first full calendar year to occur after the Completion.
“Participation Payments” shall mean the City Parcels Participation Payments
required by Section 301.5 of the Implementation Agreement and the payments the
Developer has agreed and covenanted to pay to the City at the required times and in the
required manner and as calculated pursuant to this Participation Agreement.
“Project Component” shall mean each of the Apartments, the Retail Space, the
Offices, and the Hotel.
“Project Costs” for any Project Component shall mean the total verified
construction and development costs for each such Project Component, including the
Apartments, the Hotel, the Offices, and the Retail Space, as determined and allocated
pursuant to Section 4 below.
“Project Equity Investment” for any Project Component shall mean the Project
Costs expended for and allocated to that Project Component less the amount of such
Project Costs paid for with the proceeds of the Construction Loan.
“Stabilization” shall mean for each Project Component a period of time ending at
(a) Completion of that Project Component for purposes of calculating Net Refinancing
Proceeds; (b) three (3) years after the Completion of that Project Component for purposes
of calculating annual Net Profit, and (c) ten (10) years after the Completion of that
Project Component for purposes of calculating Net Sales Proceeds.
“Threshold Net Return” shall mean for each Project Component a Net Profit equal
to twenty-five percent (25%) of Project Equity Investment.
“Above-Threshold Net Return” shall mean for each Project Component that
portion, if any, of Net Profit which is above Threshold Net Return, less the cumulative
Developer Net Return Shortfall if any calculated for that Project Component at the time
of the Capital Event which triggers the payment to the City of the City Net Return Share.
Attachment No. 1
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“City Net Return Share” shall mean for each Project Component an amount if any
equal to twenty percent (20%) of Above-Threshold Net Return.
“Developer Net Return Shortfall” shall mean for each Project Component an
amount if any by which annual Net Profit in any Operating Year is less than Threshold
Net Return.
“Transfer” shall mean the sale, long term lease, transfer, conveyance,
encumbrance, or assignment of any kind however effected of any or all of the Apartment
Parcel, the Retail Space Parcel, the Hotel Parcel, and the Office Parcel, or any portion
thereof or interest therein, whether voluntary, involuntary, by operation of law or
otherwise, or any agreement to do so; the execution of any installment land sale contract
or similar instrument affecting all or a portion of any or all of the Project Component
parcels; or the lease of all or substantially all of any or all of the Project Component
parcels, other than the short-term lease of space for occupancy by a tenant. “Transfer”
shall also mean the transfer, assignment, hypothecation or conveyance of legal or
beneficial ownership of any interest in Developer, or any conversion of Developer to an
entity form other than that of Developer at the time of execution of this Participation
Agreement, except for the following: (A) a cumulative change in the ownership interests
of any individual limited liability company member of forty-nine percent (49%) or less
shall not be deemed a “Transfer” for purposes of this Note; and (B) a transfer of a portion
or a majority of stock of any corporation to a trust formed in connection with a qualified
employee ownership plan shall not, by itself, be deemed to constitute a change in
ownership for purposes of this Note.
3. PARTICIPATION PAYMENTS AND PAYMENT PROCEDURES
The Developer covenants and agrees for itself, its successors, its assigns and
every successor in interest to the Site or any part thereof or any interest therein, to pay to
the City the Participation Payments as follows:
A. Calculation of City Net Return Share for each Operating Year
Commencing for the fourth Operating Year, Developer shall annually, within one
hundred twenty (120) days after the end of each Operating Year, provide City with
complete financial statements of the Project for the preceding Operating Year, separately
stated for each Project Component, determining the amount of Net Profit, Threshold Net
Return, Above-Threshold Net Return, City Net Return Share, if any, and Developer Net
Return Shortfall if any generated in that Operating Year for each Project Component
(“Financial Statements”). The Financial Statements shall be reasonably satisfactory to
City in support of all calculations of the Participation Payments, broken down amongst
the Project Components by specific line items consistent with the definitions set forth in
this Participation Agreement. The City shall review and approve such Financial
Statement, or request revisions, within 30 days after receipt, and shall not unreasonably
withhold or delay such approval.
Attachment No. 1
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B. Notice of Capital Event
If the Developer elects to effectuate or enter into any agreement providing for the
effectuation of any Capital Event, it shall deliver to City a written notice of such Capital
Event and any such agreement and supporting documentation at least ninety (90) days
prior to the scheduled close of such Capital Event (the “Capital Event Notice”).
Concurrently with delivery of the Capital Event Notice to City, Developer shall
provide City with a calculation of Net Refinancing Proceeds or Net Sale Proceeds as may
be applicable to the Capital Event involved, together with a calculation of Net Profit,
Threshold Net Return, Above-Threshold Net Return and City Net Return Share, if any,
generated by such Capital Event.
The calculations shall be reasonably satisfactory to City. The City shall review
and approve such calculations, or request revisions, within 30 days after receipt, and shall
not unreasonably withhold or delay such approval.
C. Participation Payments
On or before the closing of each Capital Event, Developer shall pay to the City an
amount equal to the sum of (i) the City Net Return Share relating to the Capital Event, if
any, plus (ii) the City Net Return Share relating to each Operating Year since the last
Capital Event, if any.
Illustrative examples related to the implementation of this Section 3 are set forth
in the attached Exhibit “B”. Such examples are for purposes of illustration only and in
the event of a conflict between said Exhibit “B” and this Participation Agreement, the
provisions of this Participation Agreement shall prevail.
D. Release of Participation Agreement Upon First Bona Fide Arm’s
Length Third Party Sale
This Participation Agreement, as to each Project Component, shall be released
upon the closing of the first Bona Fide Arm’s Length Third Party Sale and conveyance of
fee title to each Project Component and the payment to the City of the applicable
Participation Payments due in connection therewith.
In the event of a Transfer of any or all of the Project Components or any portions
thereof which is not a Bona Fide Arm’s Length Third Party Sale, Developer shall have no
right to terminate the payment of Participation Payments, and Participation Payment shall
continue as required under this Participation Agreement without change or adjustment of
any kind until the Expiration Date.
Attachment No. 1
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E. Notice of Transfer
If the Developer elects to effectuate or enter into any agreement providing for a
Transfer of any Project Component or portion thereof or interest therein, it shall deliver
to City a written notice of such proposed Transfer and any such agreement at least ninety
(90) days prior to the close of such Transfer (the “Transfer Notice”).
The City shall reasonably determine whether the proposed Transfer involves a
Capital Event or not and shall provide written notice to Developer of such determination
within forty-five (45) days of receipt by City of the Transfer Notice and all requested
supporting documentation. In the event the Transfer is determined to be a Capital Event
then the Developer shall provide for the City’s approval the calculations as and when
required by this Participation Agreement and shall make the payments to the City as and
when required by this Participation Agreement for the Capital Event involved.
4. DETERMINATION AND ALLOCATION OF PROJECT COSTS
The Project Costs and the amount of the Project Cost paid for with the proceeds
of the Construction Loan for each Project Component shall be reasonably determined and
certified by the City in consultation with the Developer prior to issuance by City of a
Release of Construction Covenants for the Project Component involved based on the
Evidence of Financing approved by the City in connection with the Closing and subject
to such changes to the costs that arose in the ordinary course of business of construction
in accordance with the Implementation Agreement and Project Entitlements, including
without limitation change orders and the like.
The Project Costs for each Project Component shall include the costs directly
related to the construction and development of the Project Component, and a share of the
costs indirectly related to the Project Component. Such indirect costs shall be allocated
to each Project Component in the proportion that that Project Component’s direct costs
bears to the total direct Project Costs for the Project.
In conjunction with the certification of Project Costs, City shall concurrently
therewith also certify the amount of Project Equity Investment to be allocated to each of
the Project Components.
Illustrative examples of various scenarios related to the implementation of this
Section 4 are set forth in the attached Exhibit “C”. Such examples are for purposes of
illustration only and in the event of a conflict between said Exhibit “C” and this
Participation Agreement, the provisions of this Participation Agreement shall prevail.
5. ELIGIBILITY OF REVENUES AND EXPENSES
All actually received revenues and actually paid expenses which are to be
included in Gross Rents, Gross Hotel Revenues and/or Operating Expenses, as
applicable, shall be computed on an accrual accounting basis and shall include, for each
Attachment No. 1
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Operating Year, only those revenues and expenses applicable to such Operating Year.
Gross Rents, Gross Hotel Revenues and/or Operating Expenses shall be included in the
Operating Year to which they are properly allocated in accordance with generally
accepted accounting principles consistently applied; provided that any material revenues
included in a Operating Year which are not actually received by the date required for the
delivery of the Financial Statement for such Operating Year, shall be excluded for such
Operating Year and shall be included, if received, in the Operating Year when actually
received. There shall be no double counting of the expenses (or revenues) described
above, and if any expenses (or revenues) incurred in any Operating Year could be placed
in more than one category, it shall be placed in only one of the applicable categories for
that Operating Year and accounted for one time in that Operating Year.
7. MANAGEMENT
Developer agrees to conduct itself in the development and operation of the
Improvements and in the computation of the amounts and payments referred to in this
Participation Agreement in a reasonable and customary manner that is consistent with
other comparable developments, or comparable development components, and consistent
with other developments of Developer, so as not to cause a distortion of costs, revenue or
expenses, or distortion of allocations among categories of costs, revenues and expenses,
to the detriment of the City in the calculation of the amounts and payments referred to in
this Participation Agreement.
1. All operating expenses shall be those directly paid to employees and to
third party vendors, suppliers, utilities, insurers, contractors, consultants,
taxing entities, regulatory and permitting agencies and others for goods and
services provided to, and for the direct benefit of, the project's on-going
operations and maintenance.
2. Developer and its managers and operators shall not enter into any
agreement relating to the operation of the Parcel or Parcels involved, or any
lease of commercial, retail, parking or residential space, or any agreement
for the purchase of goods and services, unless such agreement or lease is
the result of an arm's-length transaction, and the rents, fees and charges are
generally comparable to the industry standard competitively charged for
comparable items in downtown Culver City. Any such agreement or lease
which is with an Affiliate shall be submitted for review by the City for
consistency with the criteria of this Section 11.
8. ADMINISTRATIVE CHARGES
The failure of the Developer to pay any sums due and payable to City hereunder,
on or before their respective due dates as set forth therein, shall constitute a default under
this Participation Agreement, in which case the Developer shall be given ten (10) days
from the receipt of written notice of such default from the City to cure such default. In
the event such default is not timely cured by the Developer, in addition to any other
Attachment No. 1
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remedy provided by this Participation Agreement, the Developer shall pay the delinquent
amount(s) plus an administrative charge of five percent (5%) of such amount(s) as a
reasonable estimate of the administrative costs incurred by the City for servicing the
delinquent account.
9. BOOKS AND RECORDS; AUDIT
A. Records. The Developer shall make available in the City of Culver City
full and accurate books and accounts, records, cash receipts and other pertinent data
reasonably satisfactory to the City showing the operation of each Project Component.
Such books of account, records, cash receipts and other pertinent data shall be kept by the
Developer until the later of (a) a ten (10) year period after the applicable Operating Year,
and (b) upon the first Bona Fide Arm’s Length Third Party Sale for each Project
Component. The City shall be entitled during such period to inspect, examine and to
copy at the City's expense, the Developer's books of account, records, cash receipts and
other pertinent data as necessary or appropriate for the purpose of this Participation
Agreement. The Developer shall cooperate fully with the City during any such
inspection.
B. Audit. The City shall also be entitled at its expense, once within one
hundred twenty (120) days after the close of each Operating Year, to perform an
independent audit of the Developer's books of account, records, cash receipts, and other
pertinent data applicable to up to five (5) immediately preceding Operating Years, by a
certified public accountant to be designated by the City. Any such audit shall be
conducted during normal and usual business hours. A copy of any such audit shall be
provided to Developer and the Developer shall be provided with an opportunity to
address the findings of the audit. Should the City determine that based on the audit there
is a deficiency in the Participation Payments due and payable to the City, the deficiency
amount shall be immediately due and payable to the City. If such deficiency exceeds two
percent (2%) of the amount of Participation Payments actually paid to the City for the
applicable Operating Year for which there was a deficiency, or if the Developer fails to
pay the deficiency amount within fifteen (15) days after written notice from the City
requesting payment of the deficiency amount, the Developer shall, in addition to paying
the deficiency amount to the City, reimburse the City for the cost of the audit plus ten
percent (10%) of the deficiency amount as compensation to the City for administrative
costs and loss of interest on the deficiency amount. However, in the event the City audit
discloses that such deficiency is less than two percent (2%) of the actual City
Participation Payments paid to the City for the applicable Operating Year and the
Developer pays such deficiency amount within fifteen (15) days after written notice from
the City requesting such payment, only the deficiency amount shall be due and payable to
the City.
The Developer agrees to pay all such deficiency amounts and further agrees that
any administrative or late charges applicable thereto represent a fair and reasonable
estimate of the costs that the City will incur from the Developer's late payment.
Attachment No. 1
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Acceptance of late charges and any portion of the late payment of the deficiency amount
by the City shall in no event constitute a waiver of any other default under this
Participation Agreement with respect to any other late payments by the Developer nor
prevent the City from exercising any of its other rights and remedies granted in this
Participation Agreement or under operation of law.
10. BINDING ON SUCCESSORS
All covenants, conditions and agreements contained in this Participation
Agreement shall be covenants running with the land, and shall, until the Expiration Date,
and without regard to technical classification or designation, legal or otherwise, be, to the
fullest extent permitted by law and equity, binding for the benefit and in favor of, and
enforceable by, the City and its successors and assigns, against the Developer and its
successors and assigns to or of the Site or any portion thereof or any interest therein.
All references in this Participation Agreement to “Developer” shall apply to
Developer and its successors and assigns to or of the Site or any portion thereof or any
interest therein.
In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that the City shall be deemed a beneficiary of the covenants provided
for in this Participation Agreement both for and in its own right and also for the purposes
of protecting the interests of the community. All covenants without regard to technical
classification or designation shall be binding for the benefit of the City, and such
covenants shall run in favor of the City for the entire period during which such covenant
shall be in force and effect, without regard to whether the City is or remains an owner of
any land or interest therein to which such covenants relate.
11. REMEDIES OF CITY
The Developer shall pay the amounts of Participation Payments for each
Operating Year, on or before the dates provided herein for each such payment, in lawful
money of the United States at the City's office at the address set forth in this Participation
Agreement. Each payment due the City hereunder shall be due without any right of
offset or retention for any reason whatsoever.
Each such amount, if not paid, shall become delinquent on the specified due date.
Any delinquencies may be enforced and/or collected by an action at law against the
Developer and/or any other person or entity personally obligated to pay the same, or in
any other manner provided in this Participation Agreement.
Each remedy provided for in this Participation Agreement is separate, distinct and
nonexclusive. Failure to exercise a particular remedy shall not be construed as a waiver
thereof. Failure or delay to enforce any provision hereof (including collection of any
particular payment due) shall not constitute a waiver of the right to enforce said provision
(or collect such payment) or any other provision (or payment) hereof.
Attachment No. 1
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The City shall have the right, in the event of any breach of any such covenant,
agreement or condition, to exercise all the rights and remedies provided by law, and to
maintain any actions at law or suit in equity or other proper proceedings to enforce the
curing of such breach of covenant, agreement or condition. To the extent required, the
Successor Agency shall join in the exercise of any of such rights and remedies pursuant
to the Joinder of Successor Agency set forth in Section 12.J below.
12. GENERAL PROVISIONS
A. Irrevocability; Term of Participation Agreement
This Participation Agreement shall be irrevocable by the Developer, its successors
and assigns to the Site and all improvements developed thereon, or any portion thereof or
interest therein in accordance with its terms. The provisions of this Participation
Agreement shall continue in effect until the Expiration Date.
B. Amendment of Participation Agreement
Only the City, its successors and assigns, and the Developer, and the successors
and assigns of the Developer in and to the Site shall have the right to consent and agree in
writing to changes in, or to eliminate in whole or in part, any of the covenants or
conditions contained in this Participation Agreement.
C. Validity
The Developer, its successors and assigns, shall not contest, directly or indirectly,
the validity of this Participation Agreement an/or any payment to the City hereunder.
D. Applicable Law
This Participation Agreement shall be governed by and construed according to the
laws of the State of California.
E. Number, Gender, and Headings
As used in this Participation Agreement, the singular shall include the plural and
the masculine shall include the feminine and the neuter, unless the context requires the
contrary. All headings are not a part hereof, and shall not affect the interpretation of any
provision.
F. Notices
Any formal notices, demands or communications given pursuant to this
Participation Agreement shall be deemed sufficiently given when delivered personally to
the City or the Developer, or any duly authorized officer of the City or Developer
Attachment No. 1
181 16
respectively, or upon deposit in the U.S. mail postage prepaid, certified mail and return
receipt requested, addressed respectively to:
To City: The City of Culver City
Attn: Sol Blumenfeld, Community Developer
Director
9770 Culver Boulevard
Culver City, California 90232-0507
Copy to: The City of Culver City
Attn: Carol Schwab, City Attorney
9770 Culver Boulevard
Culver City, California 90232-0507
To Developer: Lowe Enterprises Real Estate Group
Attn: Thomas W. Wulf
Senior Vice President and
Attn: John DeMarco, Esq.
General Counsel
11777 San Vicente Boulevard; Suite 900
Los Angeles, California 90049
Such notices, demands or communications may be sent in the same manner to
such other addresses as either party may from time to time designate in a notice give
pursuant to this Section.
G. Developer Waivers. Developer waives presentment for payment, demand,
protest, and notices of dishonor and of protest; the benefits of all waivable exemptions;
and all defenses and pleas on the ground of any extension or extensions of the time of
payment or of any due date under this Participation Agreement, in whole or in part,
whether before or after maturity and with or without notice. Developer hereby agrees to
pay all costs and expenses, including reasonable attorney's fees, which may be incurred
by the holder hereof, in the enforcement of this Participation Agreement, the Participation
Deed of Trust, the Implementation Agreement, or any term or provision of either thereof.
H. Rights Held Invalid. If the rights created by this Participation Agreement
shall be held by a court of competent jurisdiction to be invalid or unenforceable as to any
part of the obligations described herein, the remaining obligations shall be completely
performed and paid.
I. Discrepancies. In the case of any inconsistency between the provisions of
this Participation Agreement and the Implementation Agreement, the provisions of this
Participation Agreement shall prevail.
J. Joinder of Successor Agency. The joinder of the Successor Agency to this
Participation Agreement and the execution of this Participation Agreement is limited to
Attachment No. 1
182 17
the performance of the obligation of the Successor Agency to the extent required to take
any necessary steps and sign any necessary documents in order to enable the enforcement
of the covenants of Developer pertaining to the Agency Parcels.
[signatures begin on following page]
Attachment No. 1
183 18
IN WITNESS WHEREOF, the City and the Developer have caused this
Participation Agreement to be executed on their behalf by their respective officers
hereunto duly authorized, and the Successor Agency has joined in the execution of this
Participation Agreement pursuant to Section 12.J above.
CITY OF CULVER CITY
Dated:______________ By: _________________________
Its: _________________________
KANE, BALLMER & BERKMAN
City Special Counsel
By: _________________________
Murray O. Kane
[signatures continue on following page]
Attachment No. 1
184 19
THE SUCCESSOR AGENCY TO THE
CULVER CITY REDEVELOPMENT
AGENCY
Dated:______________ By: _________________________
Its: _________________________
KANE, BALLMER & BERKMAN
Successor Agency Special Counsel
By: _________________________
Murray O. Kane
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
Dated:______________ By: ______________________
Thomas W. Wulf
Its: Senior Vice President
Attachment No. 1
185 20
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)
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)
Attachment No. 1
186 21
Exhibit “A”
“Legal Description of the Site"
[behind this page]
Attachment No. 1
187 22
Exhibit “B”
Illustrative Examples of Participation Payments
Attachment No. 1
188 23
Exhibit “C”
Illustrative Examples of Project Costs Determination and Allocation
Attachment No. 1
189ATTACHMENT NO. 8
ASSIGNMENT OF CONSTRUCTION CONTRACT
[See Attached]
Attachment No. 1
190
ATTACHMENT NO. 8
ASSIGNMENT OF CONSTRUCTION CONTRACT
ASSIGNMENT OF CONSTRUCTION CONTRACT
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
LOWE ENTERPRISES REAL ESTATE GROUP, a California corporation (“Developer”), as
additional security for its obligations under that certain Implementation Agreement (the
“Implementation Agreement”), dated ______________________, 2014, to which Developer,
the CITY OF CULVER CITY, a municipal corporation (“City”), and the SUCCESSOR AGENCY
TO THE CULVER CITY REDEVELOPMENT AGENCY, a public body, corporate and politic,
are parties, hereby assigns to City all of Developer’s rights, title and interest, but not its obligations,
in, under and to a construction contract between Developer and ________________________, a
________________________ (“Contractor”) dated ______________________, 201__ upon the
following terms and conditions. “Implementation Agreement” as used herein shall mean, refer to
and include the Implementation Agreement, as well as any riders, exhibits, addenda,
implementation agreements, amendments and attachments thereto or other documents expressly
incorporated by reference in the Implementation Agreement. Any capitalized term not herein
defined shall have the same meaning as set forth in the Implementation Agreement. The
Implementation Agreement is hereby incorporated herein by this reference.
A. Pursuant to the Implementation Agreement, Developer intends to construct certain
Improvements on that certain real property described in Exhibit A attached hereto and incorporated
herein by this reference (the “Property”).
B. As a requirement of the Implementation Agreement and in order to protect City’s
right in the event the Property reverts to City, City has required that Developer execute and deliver
this Assignment of Construction Contract (this “Assignment”) to City as security for the
performance of Developer’s obligations under the Implementation Agreement. All of the terms
and agreements contained in this Assignment shall be binding upon Developer and Developer’s
successors and assigns.
NOW THEREFORE, Developer hereby agrees, for itself and its successors and assigns, as
follows:
1. (a) Developer agrees to obtain and deliver to City, concurrently with delivery
of this Assignment, a Consent to Assignment of Construction Contract from Contractor
substantially in the form attached hereto as Exhibit B and incorporated herein by this reference
(the “Consent”).
(b) This Assignment and the Consent do not relieve Developer of its obligations
under the Construction Contract (as hereinafter defined). City does not hereby assume any of
Developer’s obligations or duties concerning any Construction Contract including, without
limitation, any obligation to pay for the work done pursuant thereto.
Attachment No. 1
191
-2-
2. Developer hereby assigns, conveys and transfers to City, as security for
Developer’s obligations under the Implementation Agreement, all of Developer’s rights, title,
interest, privilege, benefit and remedies in, to and under the following:
(a) the construction contract and any other agreements with Contractor listed
in Exhibit C attached hereto and incorporated herein by this reference (collectively, the
“Construction Contract”); and
(b) all other agreements now or hereafter entered into by Developer with
Contractor in connection with construction of the Improvements; and
(c) any and all present and future amendments, modifications, supplements,
change orders and addenda to any of the items described in clauses (a) and (b) above.
A complete copy of each document listed on Exhibit C shall be provided to City
concurrently with delivery of this Assignment. Each of the agreements described above in this
Section 2 is referred to herein as an “Agreement”.
3. Upon the occurrence of a triggering event specified in Section 612 under the
Implementation Agreement (a “Trigger Event”)resulting in City’s exercise of its right of reverter
under Section 612 of the Implementation Agreement, City may, at its option and with no
obligation, upon written notice to the appropriate Contractor, exercise any or all of the rights and
remedies granted to Developer under the Construction Contract as if City had been an original
party to such Construction Contract. City may elect to assume some or all of the obligations of
Developer under the Construction Contract by giving notice to that effect to Contractor; provided,
however, that City shall not be responsible for any default, liability, or obligation of Developer
under the Construction Contract occurring prior to the time that City gives such notice to
Contractor.
4. Upon the occurrence of a Trigger Event, Developer shall be deemed to have
irrevocably constituted and appointed City as its attorney in fact, which power is coupled with an
interest so that City shall have the right to demand, receive and enforce Developer’s rights with
respect to the Construction Contract, to give appropriate receipts, releases and satisfactions for and
on behalf of Developer, and to do any and all acts in the name of Developer or in the name of City
with the same force and effect as Developer could have done.
5. Developer hereby represents and warrants to City that, except for any assignment
as may be required by Developer’s construction lender for the Improvements, Developer has not
made any previous assignment of the Construction Contract, and Developer agrees not to assign,
sell, pledge, transfer or otherwise encumber its interest in the Agreements so long as this
Assignment is in effect. Developer represents and warrants that the copy of the Construction
Contract provided by Developer to City shall be the complete and entire agreement between the
parties thereto. Developer agrees not to modify the Construction Contract without City’s written
consent, except to the extent otherwise permitted in the Implementation Agreement.
6. If any provision of this Assignment shall be invalid, illegal or unenforceable, then
it shall not affect or impair the validity, legality and enforceability of the other provisions of this
Assignment or of the Implementation Agreement. This Assignment may not be amended,
Attachment No. 1
192
-3-
modified or changed, nor shall any waiver of any provision hereof be effective, except by a written
instrument signed by the party against whom enforcement of the waiver, amendment, change, or
modification is sought.
7. Developer shall indemnify and hold harmless City against any liabilities, claims,
costs or expenses, including reasonable attorneys’ fees (including the reasonable value of the
services of in-house counsel), incurred by City as a result of this Assignment or City’s exercise of
its rights hereunder. The indemnity contained in this section shall not extend to any actions, suits,
claims, demands, liabilities, losses, damages, obligations, costs or expenses caused as a result of
City’s gross negligence or willful misconduct.
8. This Assignment shall be binding upon Developer and Developer’s successors,
legal representatives and assigns, and shall inure to the benefit of City, its successors and assigns,
including any purchaser upon foreclosure of the deed of trust securing any loan contemplated by
the Implementation Agreement, any receiver in possession of the property described therein, and
any corporation formed by or on behalf of City which assumes City’s rights and obligations under
the Implementation Agreement.
9. Upon the due recordation of a Release of Construction Covenants in accordance
with the Implementation Agreement, this Assignment shall automatically terminate.
10. This Assignment shall be governed by and construed in accordance with the laws
of the State of California.
[signatures on following page]
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Attachment No. 1
193
IN WITNESS WHEREOF, Developer has caused this Assignment to be executed as of
the date first set forth above.
DEVELOPER
LOWE ENTERPRISES REAL ESTATE GROUP, a
California corporation
Date: _________________ By: ____________________________________
Thomas W. Wulf
Senior Vice President
Attachment No. 1
194
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
195
EXHIBIT B
CONSENT TO ASSIGNMENT OF CONSTRUCTION CONTRACT
The undersigned hereby consents to that certain Assignment of Construction Contract (the
“Assignment”) dated as of even date herewith, executed by LOWE ENTERPRISES REAL
ESTATE GROUP, a California corporation (“Developer”) for the benefit of the CITY OF
CULVER CITY, a municipal corporation (“City”), and agrees to perform pursuant to the terms
and conditions of the undersigned’s Construction Contract and/or Agreement with Developer
described in Exhibit C attached to the Assignment. If requested by City in the exercise of its rights
under the Assignment, the undersigned shall continue to perform its obligations under its
Construction Contract and/or Agreement for which the undersigned shall be compensated in
accordance with such document. The undersigned agrees that, upon request by City, the
undersigned shall provide a complete list of all of its subcontractors in connection with work for
or on the Property done or to be done pursuant to the Implementation Agreement and shall
cooperate to provide and permit access to City or its agents for inspection of the Property and the
work in process. The undersigned also agrees that, in the event of a breach by Developer of any
of the terms and conditions of said Construction Contract and/or Agreement, the undersigned will
give prompt written notice of such breach to City at City’s address set forth below. City shall have
sixty (60) calendar days from the receipt of such notice of default to remedy or cure said default;
provided, however, that neither the Assignment nor this Consent shall require City to cure said
default, but City shall, in its sole discretion, have the option to do so but without the obligation
therefor. The undersigned acknowledges that City is relying on this Consent and the assurances
herein in approving the Implementation Agreement and that this Consent shall also be for the
benefit of and bind any assignee or successors of City and the undersigned. All capitalized terms
used in this Consent shall have the same meaning as in the Assignment. The Construction Contract
and/or Agreement between Developer and the undersigned is in full force and effect as of the date
hereof.
Dated as of ________________, 201__ __________________________________,
a _________________________________
By: _______________________________
Name: ____________________________
Title: _____________________________
Contractor’s Address:
_________________________
_________________________
_________________________
_________________________
City’s Address:
Culver City Redevelopment Agency
0507
CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Community Development Director
Attachment No. 1
196
EXHIBIT C
LIST OF CONSTRUCTION CONTRACTS
[behind this page]
Attachment No. 1
197ATTACHMENT NO. 9
ASSIGNMENT OF PLANS, REPORTS AND DATA
[See Attached]
Attachment No. 1
198
Page 1 of 4
ATTACHMENT NO. 9
ASSIGNMENT OF PLANS, REPORTS AND DATA
ASSIGNMENT OF PLANS, REPORTS AND DATA
FOR VALUE RECEIVED, the receipt and sufficiency of which are hereby
acknowledged, LOWE ENTERPRISES REAL ESTATE GROUP, a California corporation
(“Developer”), does hereby, pursuant to this Assignment of Plans, Reports and Data (this
“Assignment”), to the extent assignable, assign, pledge, transfer and set over to the CITY OF
CULVER CITY, a municipal corporation (“City”), all of its rights, title and interest in and to the
following (collectively, “Plans, Reports and Data”): any and all plans, drawings, studies,
reports and related documents concerning that certain real property described in Exhibit A
attached hereto and incorporated herein by this reference (the “Property”), and all amendments,
modifications, supplements, general conditions and addenda thereto, including, without
limitation, Environmental Reports (defined below), all architectural and engineering plans, any
architect’s agreement entered into hereafter (the “Architect’s Agreement”) by and between
Developer and any architect engaged to perform services with respect to the Property
(“Architect”) and those certain plans and specifications referred to therein, and all amendments,
modifications, supplements, general conditions and addenda thereto (collectively, the
“Architectural Plans”) prepared by Architect for the account of Developer in connection with
the development of certain real property located on the Property. The Plans, Reports and Data,
including, without limitation, the Architect’s Agreement and the Architectural Plans, are hereby
assigned as consideration for City’s execution of that certain Implementation Agreement (the
“Implementation Agreement”), dated ______________________, 2014 and entered into by
and among Developer, City and the SUCCESSOR AGENCY TO THE CULVER CITY
REDEVELOPMENT AGENCY, a public body, corporate and politic. “Implementation
Agreement” as used herein shall mean, refer to and include the Implementation Agreement, as
well as any riders, exhibits, addenda, implementation agreements, amendments and attachments
thereto or other documents expressly incorporated by reference in the Implementation
Agreement. Any capitalized term not herein defined shall have the same meaning as set forth in
the Implementation Agreement. The Implementation Agreement is hereby incorporated herein
by this reference. For purposes hereof, “Environmental Reports” means any “Phase I” and/or
“Phase II” investigations of the Property, and all final reports and test results (not including
drafts) provided by Developer’s environmental consultant.
Upon the occurrence of any triggering event specified in Section 612 of the
Implementation Agreement, City shall have the right, but not the obligation, at any time, in its
own name or in the name of Developer, or otherwise, to take such action as City may at any time
or from time to time determine to be necessary or desirable in order to cure any default by
Developer under the Architect’s Agreement, including, without limitation, the protection of
Developer’s rights with respect to the Architectural Plans or to protect the rights of Developer
thereunder. Developer hereby indemnifies and agrees to hold City harmless from and against
any and all loss, claim, demand, cost, liability, damage or expense, including, without limitation,
reasonable attorneys’ fees and expenses in connection with any such action or actions. The
Attachment No. 1
199
Page 2 of 4
indemnity contained in this section shall not extend to any actions, suits, claims, demands,
liabilities, losses, damages, obligations, costs or expenses caused as a result of City’s gross
negligence or willful misconduct. Developer agrees to have each Architect engaged to perform
services in connection with the Property execute a Consent in the form attached hereto.
Upon a termination of the Implementation Agreement, City may exercise its rights
hereunder and take possession of and title to the Plans, Reports and Data. Developer shall
deliver possession of and title to the Plans, Reports and Data to City promptly upon City’s
request.
Developer and Architect, by executing the Consent to this Assignment, agree that City
does not assume any of Developer’s obligations or duties concerning the Architect’s Agreement
and the Architectural Plans, including, without limitation, the obligation to pay for the
preparation of the Architect’s Agreement and the Architectural Plans, until and unless City shall
exercise its rights hereunder.
Developer hereby represents and warrants to City that, except for any assignment as may
be required by Developer’s construction lender for the Improvements, no previous assignment
of its interest in the Plans, Reports and Data, including, without limitation, the Architect’s
Agreement and the Architectural Plans, has been made, and Developer agrees not to assign, sell,
pledge, transfer, mortgage or otherwise encumber its interest in the Plans, Reports and Data,
including, without limitation, the Architect’s Agreement and the Architectural Plans, so long as
this Assignment is in effect.
Upon the due recordation of a Release of Construction Covenants in accordance with the
Implementation Agreement, this Assignment shall automatically terminate.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal
representatives, assigns, or successors in interest of Developer and City.
[signatures on following page]
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Attachment No. 1
200
Page 3 of 4
IN WITNESS WHEREOF, Developer has caused this Assignment of Plans, Reports and
Data to be executed as of ______________________, 201__.
DEVELOPER
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
Date: _________________ By: ____________________________________
Thomas W. Wulf
Senior Vice President
Attachment No. 1
201
Page 4 of 4
CONSENT
The undersigned has prepared or will prepare the Architectural Plans and hereby consents
to the above Assignment. The undersigned also agrees that in the event of a breach by
Developer of any of the terms and conditions of the Architect’s Agreement or any other
agreement entered into with the undersigned in connection with the Architectural Plans, that so
long as Developer’s interest in the Architectural Plans is assigned to City, the undersigned shall
give written notice to City of such breach. City shall have sixty (60) calendar days from the
receipt of such notice of default to remedy or cure said default; however, nothing herein shall
require or obligate City to cure said default, but only gives it the option to do so.
The undersigned also agrees that in the event of default by Developer under any of the
documents or instruments entered into in connection with said Architect’s Agreement, the
undersigned, at City’s request, shall continue performance under the Architect’s Agreement in
accordance with the terms hereof, provided that the undersigned shall be reimbursed in
accordance with the Architect’s Agreement for all services rendered on City’s behalf.
Dated:
ARCHITECT:
___________________________________
By:
Name:
Title:
Attachment No. 1
202
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
203ATTACHMENT NO. 10
ASSIGNMENT AND ASSUMPTION AGREEMENT
[See Attached]
Attachment No. 1
2041
ATTACHMENT NO. 10
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement (this “Agreement”), dated as of
______________________, 20____, is entered into by and between LOWE ENTERPRISES
REAL ESTATE GROUP, a California corporation (“Assignor”) and
_____________________________, a _____________________________ (“Assignee”), with
reference to the following facts:
RECITALS
A. Assignor, the CITY OF CULVER CITY, a municipal corporation (“City”), and the
SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT AGENCY, a
public body, corporate and politic, entered into that certain Implementation Agreement
dated ______________________, 2014, a public record on file in the office of the City
Clerk (the “Implementation Agreement”), relating to, among other things, that certain
real property located in the City of Culver City, County of Los Angeles, State of
California and legally described in Exhibit A attached hereto and incorporated herein by
this reference (the “Property”). “Implementation Agreement” as used herein shall mean,
refer to and include the Implementation Agreement, as well as any riders, exhibits,
addenda, implementation agreements, amendments and attachments thereto or other
documents expressly incorporated by reference in the Implementation Agreement. Any
capitalized term not herein defined shall have the same meaning as set forth in the
Implementation Agreement. The Implementation Agreement is hereby incorporated
herein by this reference.
B. Assignor hereby desires to assign all of its rights and delegate all of its duties under the
Implementation Agreement to Assignee, and Assignee intends to assume all rights and
obligations of Assignor thereunder.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
AGREEMENT
1. Assignor hereby assigns all of its right, title and interest in and to the Implementation
Agreement and any and all related agreements to Assignee.
2. Assignee hereby expressly acknowledges the existence and description of the
Improvements within the Project, all of the written agreements among the parties
affecting the Improvements or related thereto, the obligations of Assignee under such
agreements, and the rights of City and its successors and of the owner, lessee and/or
Attachment No. 1
2052
operator of the Improvements under such agreements, and hereby expressly accepts such
assignment and agrees to assume, perform and comply with such obligations and rights,
without exception.
3. Approval of this Agreement by City shall not be construed to relieve or release Assignor
from its duty to comply with any of its obligations.
4. The principal address of Assignee for purposes of the Implementation Agreement and
any and all related agreements is as follows:
______________________
______________________
______________________
Attn: _________________
5. This Agreement is made for the sole benefit and protection of the parties hereto and their
successors and assigns, and no other person or persons shall have any right of action or
right to rely hereon. As this Agreement contains all the terms and conditions agreed upon
between the parties, no other agreement regarding the subject matter thereof shall be
deemed to exist or bind any party unless in writing and signed by the party to be charged.
6. This Agreement may be executed in several duplicate originals, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument, and shall become effective upon execution by the parties, as indicated by the
signatures below. The signature pages of one or more counterpart copies may be
removed from such counterpart copies and all attached to the same copy of this
Agreement, which, with all attached signature pages, shall be deemed to be an original
agreement. When fully executed, the date of this Agreement shall be the later of the
dates indicated below.
7. This Agreement shall be governed by the laws of the State of California.
8. If any term or provision of this Agreement, the deletion of which would not adversely
affect the receipt of any material benefit by any party hereunder, shall be held by a court
of competent jurisdiction to be invalid or unenforceable, then the remainder of this
Agreement shall not be affected thereby and each other term and provision of this
Agreement shall be valid and enforceable to the fullest extent permitted by law. It is the
intention of the parties hereto that in lieu of each clause or provision of this Agreement
that is illegal, invalid or unenforceable, there be added as a part of this Agreement an
enforceable clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible.
9. Time is expressly declared to be of the essence in this Agreement.
10. No provision in this Agreement is to be interpreted for or against either party because that
party or its legal representatives drafted such provision.
Attachment No. 1
2063
11. The parties hereto hereby agree to execute such other documents and to take such other
action as may be reasonably necessary to further the purposes of this Agreement.
12. The parties hereto further represent and declare that they carefully read this Agreement
and know the contents thereof, and that they sign the same freely and voluntarily.
13. Each party hereto hereby represents that the person executing this Agreement on behalf
of said party has full authority to do so and to bind the party to perform pursuant to the
terms and conditions of this Agreement.
[remainder of this page intentionally left blank]
Attachment No. 1
2074
IN WITNESS WHEREOF, Assignor and Assignee have signed this Agreement as of
the date set opposite their signatures.
“ASSIGNOR”
LOWE ENTERPRISES REAL ESTATE GROUP,
a California corporation
Date: _________________ By: ____________________________________
Thomas W. Wulf
Senior Vice President
“ASSIGNEE”
_________________________________________,
a ________________________________________
Date: _________________ By: ____________________________________
Name: ____________________________________
Title: ____________________________________
Attachment No. 1
2085
CONSENT TO ASSIGNMENT AND ASSUMPTION AGREEMENT
In reliance upon the assumption by _____________________________, a
_____________________________, as Assignee, of all rights and obligations pursuant to the
foregoing Assignment and Assumption Agreement, the CITY OF CULVER CITY, a municipal
corporation (“City”) does hereby consent to and approve of the assignment of the rights and
obligations by LOWE ENTERPRISES REAL ESTATE GROUP, a California corporation, as
Assignor, to Assignee. Approval thereof by City shall not be construed to relieve or release
LOWE ENTERPRISES REAL ESTATE GROUP, a California corporation, from its duty to
comply with any of its obligations.
“CITY”
CITY OF CULVER CITY,
a municipal corporation
By: ________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Sol Blumenfeld
Community Development Director
ATTEST:
By: ______________________________
City Clerk
APPROVED AS TO FORM:
By: ________________________________
Carol Schwab
City Attorney
By: ________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
Attachment No. 1
2096
EXHIBIT A
LEGAL DESCRIPTION
[behind this page]
Attachment No. 1
210ATTACHMENT NO. 11
TITLE OBJECTION LETTER
[See attached]
Attachment No. 1
211
ATTACHMENT NO. 11
TITLE OBJECTION LETTER
LOWE ENTERPRISES
WASHINGTON NATIONAL TOD
Title Review Chart
June 6, 2014
First American Title Company
Commitment dated as of March 17, 2014
Commitment No.: NCS-661365-LA2
Title Officer: Sharon K. Ryan
Telephone: (213) 271-1748; E-Mail: skryan@firstam.com
TITLE COMPANY - PLEASE PREPARE A PROFORMA POLICY INCORPORATING THE FOLLOWING TITLE POLICY
REQUIREMENTS AND CLTA ENDORSEMENTS AND DELIVER THE SAME TO COUNSEL AS SOON AS POSSIBLE.
TITLE POLICY REQUIREMENTS:
OWNER:
? The City of Culver City (the “City”), a public body corporate and politic, as to Lots 1 through 9,
inclusive and Lots 11 through 18, inclusive of Parcel A;
? The Successor Agency to the Redevelopment Agency of the City of Culver City (the “SA”), a
public entity, as to Lots 19 through 52, inclusive of Parcel A; and
? Los Angeles County Transportation Commission (the “MTA”), a county transportation
commission, as to Parcel B.
NOTE: Lot 10 (APN: 4312-014-270) is not shown as either “owned” by either City, SA, MTA. Pursuant to
Quitclaim Deed (Doc. No. 2012-1530395), City deeded to SA (contrary to what is stated above).
LIABILITY AMOUNT:
ESTATE Fee
LEGAL DESCRIPTION
(the “Property”):
PARCEL A:
LOTS 1 THROUGH 52, INCLUSIVE OF TRACT NO. 5461, PARTLY IN THE CITY OF CULVER CITY,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 57,
PAGE 76 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, OIL RIGHTS, NATURAL GAS RIGHTS, MINERAL RIGHTS, ALL
OTHER HYDROCARBON SUBSTANCES BY WHATSOEVER NAME KNOWN, AND ALL WATER,
CLAIMS OR RIGHTS TO WATER, TOGETHER WITH APPURTENANT RIGHTS THERETO, WITHOUT
HOWEVER, THE RIGHT TO ENTER UPON THE SURFACE OF SAID LAND AS RESERVED BY
DEEDS OF RECORD.
PARCEL B:
ALL THE PARCEL OF LANDS SITUATED, LYING AND BEING IN THE COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, BEING THAT PORTION OF THAT PART OF RANCHO RINCON DE LOS
BUEYES, AS SHOWN ON A MAP RECORDED IN BOOK 1, PAGES 207 AND 208 OF PATENTS, AS
DESCRIBED IN THAT CERTAIN DEED FROM FRANCISCO HIGUERRA TO THE LOS ANGELES AND
INDEPENDENCE RAILROAD COMPANY, RECORDED IN BOOK 47, PAGE 152 AND IN BOOK 53,
PAGE 522 BOTH OF DEEDS, IN THE OFFICE OF THE COUNTY RECORDED OF SAID COUNTY,
AND THAT PORTION OF THAT PART OF RANCHO RINCON DE LOS BUEYES, PROPERTY OF
CLEMENTE C. DE CORONEL, AS PER MAP RECORDED IN BOOK 13, PAGE 18 OF
Attachment No. 1
212
MISCELLANEOUS RECORDS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,
AS DESCRIBED IN THAT CERTAIN DEED FROM CLEMENTA CRUZ DE CORONEL, WIFE OF
MANUEL CORONEL TO THE LOS ANGELES AND INDEPENDENCE RAILROAD COMPANY,
RECORDED IN BOOK 53, PAGE 535 OF DEEDS OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION OF SAID LAND LYING NORTHWESTERLY OF
SOUTHEASTERLY LINE OF VENICE BOULEVARD 155 FEET WIDE AND THAT PORTION OF SAID
LAND LYING WESTERLY OF THE EASTERLY LINE OF ROBERTSON BOULEVARD OF VARIOUS
WIDTH AS BOTH STREETS SHOWN ON PARCEL MAP NO. 16367, PARCEL MAP NO. L.A. NO. 5735
FILED IN BOOK 203, PAGES 57 AND 58 OF PARCEL MAPS.
ALSO EXCEPTH THEREFROM THAT PORTION LYING SOUTHEASTERLY OF THE
NORTHWESTERLY LINES OF WASHINGTON BOULEVARD 60 FEET WIDE.
APN(s): 4312-014-270 thru 4312-014-281; 4213-014-900 thru 4213-014-920; and 4213-031-900 and
4213-031-901.
POLICY JACKET
REQUIREMENTS:
AMERICAN LAND TITLE ASSOCIATION EXTENDED COVERAGE TITLE INSURANCE POLICY
(2006),
ENDORSEMENTS: Required Endorsements are set forth below
SCHEDULE B EXCEPTIONS: Title Policy may include only those exceptions listed below as “APPROVED”. All conditionally
approved exceptions may be shown, provided that the language required for each such exception as set
forth herein is added or the action required herein with respect to each such exception is carried out and
satisfied.
PROPOSED CLTA ENDORSEMENTS TO BE ISSUED:
100 Comprehensive (modified for
Owner)
100.18 CC&Rs – No Right of
Reverter
With respect to 6 and 8.
100.20 CC&Rs With respect to Exceptions Nos. 6, 8, 33, 45 (modified for Owner and insuring against past,
present or future violations of such CC&Rs)
100.23 Oil/Gas Lease (modified for
Owner)
With respect to Exceptions Nos. 12-14, 17-19, and 22-25
100.29 Mineral Rights With respect to Exceptions Nos. 12-14, 17-19, and 22-25
103.2 Easement Damage With respect to Exceptions Nos. 5, 7, 9-11, 16, 31, 33, 39
103.5 Water Rights With respect to Exception No. 4
103.10 Damage by Subsurface
Owners
With respect to Exceptions Nos. 12-14, 17-19, and 22-25
103.11 Access As to Parcel A
Insuring Access to Venice, National, Washington, and Exposition Boulevard
As to Parcel B
Insuring Access to Venice, Exposition, Washington and Robertson
110.1 Arbitration Deleting arbitration provisions
110.9 No Environmental Protection
Liens
116 Improvements
116.1 Survey
Attachment No. 1
213
116.7 Subdivision Map Act
123.1 Zoning
129.1 Multiple Tax Parcels
SCHEDULE B EXCEPTIONS:
#
EXCEPTION DESCRIPTION
Date
Doc #
BUYER’S COMMENTS TO
EXCEPTIONS/
NOTES TO TITLE COMPANY
1-3.
e.g. - Taxes
- - APPROVAL CONDITIONED UPON
1. Confirmation that general and special
taxes for the tax year of closing (and all
prior tax years) have been paid to date
or are exempt from being paid.
2. Any exception referencing
supplemental taxes will be show as
follows: "The lien of supplemental taxes,
if any, assessed pursuant to Chapter 3.5
commencing with Section 75 of the
California Revenue and Taxation Code,
resulting from changes of ownership or
completion of construction on or after
the date of the policy."
4. Water Rights
- - APPROVAL CONDITIONED UPON the
Title Company's agreement to issue a
CLTA 103.5 endorsement.
5. Easement for Sewer Lines 7/30/1889 Book 591, page 69 APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 Endorsement (Easement,
Damage – Use or Maintenance)
(modified for Owner) and (b)
modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
Note: Review Plotted Easement to
Determine Impact on Development.
(Not identified on survey prepared by
PSOMAS.)
6. Covenants, Conditions and Restrictions
Grantor: Los Angeles-First National Trust
& Savings Bank, a National
Banking Association
Book 2285, Page
245
DELETE because duplicative of
Exception Number 8.
Note: This document is the same
document identified in 7(l).
7. Easement for Pipes, Conduits, Strom
Drains
Grantor: Los Angeles-First National Trust
& Savings Bank, a National
Banking Association (a)-(c), (f)-
(h), (j), (m)-(o), (r)-(s), (z), (cc),
(gg), (kk)
(a) Book 7812, Page 338
(Lot 1)[4/28/28];
(b) Book 1708, Page 247
(Lot 2)[11/3/22];
(c) Book 6018, Page 456
(Lot 3)(2/18/26);
(d) Book 10733, Page 148
(Lot 4)(3/14/31);
(e) Book 3800, Page 261
(Lot 5)(6/10/29);
(f) Book 2285, Page 245
APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
Notes:
Attachment No. 1
214
Security-First National Bank of
Los Angeles (d)-(e), (i), (p)-(q),
(t)-(u), (w)-(y), (ee)-(ff), (hh), (ll)-
(mm), (pp)-(vv)
Pacific-Southwest Trust &
Savings Bank, forrmerly Los
Angeles rust and Savings Bank
(k)-(l), (v), (aa), (dd), (ii), (nn)-
(oo)
(Lot 6)(3/31/23);
(g) Book 7788, Page 37
(Lot 7)(10/4/27);
(h) Book 7126, Page 109
(Lot 8)(5/28/28);
(i) Book 11649, Page 368
(Lot 9)(6/6/32);
(j) Book 7262, Page 137
(Lot 10)(8/13/28);
(k) Book 6139, Page 231
(Lot 11)(12/16/26);
(l) Book 2285, Page 245
(Lot 12);
(m) Book 7817, Page 65
(Lot 13)(1/9/26);
(n) Book 7047, Page 301
(Lot 14)(12/5/27);
(o) Book 7860, Page 230
(Lot 15)(1/16/28);
(p) Book 8124; Page 214
(Lot 16)(4/5/29);
(q) Book 4453, Page 6
(Lots 17 and 18)(5/22/25);
(r) Book 7106, Page 356
(Lot 19)(6/28/28);
(s) Book 7136, Page 1
(Lot 20)(1/7/28);
(t) Book 7701, Page 178
(Lot 21)(8/15/27);
(u) Book 15238, Page 349
(Lot 22)(3/12/37);
(v) Book 1854, Page 141
(Lot 23)(10/19/22);
(w) Book 10702, Page 214
(Lot 24)(2/25/31);
(x) Book 9376, Page 45
(Lot 25)(8/16/29);
(y) Book 11484, Page 192
(Lot 26)(2/15/32);
(z) Book 7723, Page 120
(Lot 27)(10/17/27);
(aa) Book 7752, Page 175
(Lot 28)(8/15/27);
(bb) Book 9246, Page 334
(Lot 29)(8/15/27);
(cc) Book 7229, Page 204
(Lot 30)(8/25/28);
(dd) Book 5594, Page 167
(Lot 31)(2/25/26);
(ee) Book 11454, Page
293 (Lot 32)(3/21/32);
(ff) Book 8263, Page 157
(Lot 33)(7/13/29);
(gg) Book 10320, Page
104 (Lots 34 and
35)(12/28/28);
(hh) Book 14534, Page
140 (Lot 36)(10/28/36);
(ii) Book 2475, Page 77
(Lot 37)(5/24/23);
(jj) Instrument No. 18659
(Lots 38, 41, and 42);
(kk) Book 7730, Page 323
(Lot 39)(2/6/28);
(ll) Book 9662, Page 272
1. Review Plotted Easements to
Determine Impacts on
Development. (Not identified on
survey prepared by PSOMAS.)
2. For each parcel, a 3 ‘ wide
easement under the lines of the
premises for pipes, conduits,
storm drains, poles, and wires
except for Lots 12, 29, 36, 38, 41
and 42.
3. Delete 7(l) because it is
duplicative of 7(f) and does not
relate to Lot 12 – only relates
to Lot 6.
4. Delete Exception 7(bb) because
it refers to a 1929 lis pendens –
not an easement.
5. Delete Exception 7(hh) because
it is a quitclaim deed – not an
exception and does not establish
an easement.
6. Delete Exception 7(jj) because it
is a court order with no ongoing
relevance.
Attachment No. 1
215
(Lot 40)(1/16/30);
(mm) Book 3796, Page
220 (Lot 43)(5/21/29);
(nn) Book 2734, Page 28
(Lot 44 and 46)(7/27/23);
(oo) Book 6756, Page 307
(Lot 45)(8/31/27);
(pp) Book 10021, Page
168 (Lot 47)(1/9/30);
(qq) Book 16290, Page
274 (Lot 48)(9/30/39);
(rr) Book 16102, Page 311
(Lot 49)(1/18/39);
(ss) Book 9995, Page 310
(Lot 50)(6/9/30);
(tt) Book 11649, Page 368
(Lot 51)(6/10/32); and
(uu) Book 16290, Page
274 (Lot 52)(1/5/39).
8. Covenants, Conditions, Restrictions
prohibiting the sale of alcohol or
installation of advertising signs.
Grantor: Los Angeles-First National Trust
& Savings Bank, a National
Banking Association
Covenants in favor of: Tract 5461
NOTE: MAY BE POSSIBLE TO
TERMINATE UPON CLOSING ON ALL
PARCELS IN DEVELOPMENT
See above APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such CC&Rs including specifically any
exercise of the right of reverter.
Note: Exception No. 8 relates to the
same instruments as Exception 7.
Accordingly, the same notes apply.
9. Easement for street and incidental
purposes [Lot 1]
Easement in favor of: City of LA
1/23/32 Book 11417, Page
67
APPROVED.
Notes:
1. Covers west corner of site at
Exposition and Venice. We
expect this easement to be
vacated.
2. Review Plotted Easements to
Determine Impacts on
Development. (Not
identified on survey prepared
by PSOMAS.)
10. Easement for pole lines [All lots excepting
Lots 32, 33, 34 and 52]
Grantor: Security-First National Bank
Easement in favor of: Southern California
Telephone
Company
9/5/39 Book 16842, Page
307
APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
Attachment No. 1
216
Note: Easement runs along rear three ‘
of all lots excepting Lots 32, 33, 34 and
52.
Note: Review Plotted Easements to
Determine Impacts on Development.
(Not identified on survey prepared by
PSOMAS.)
11. Easement for Public Utilities [Lot 36 – for
aerial and underground telephone,
telegraph]
Grantor: Commonwealth Engineering
Corporation
Easement in favor of: The Pacific
Telephone and
Telegraph
Company
12/16/49 Instrument No. 2282
in Book 31787, Page
134
APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
Notes:
1. Cannot place buildings on the
easement.
2. Review Plotted Easements to
Determine Impacts on Development.
12. Oil and Gas Lease [Lot 44] 7/23/54 Book 45142, Page
269
APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights), (b) CLTA
103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
13. Oil and Gas Lease [Lots 43 and 45]
Lessee: Aladdin Oil Company
11/24/54 Book 46197, Page
185
APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights), (b) CLTA
103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
14. Oil and Gas Lease [Lots 43 and 45]
Lessee: Aladdin Oil Company
11/24/54 Instrument No. 2614 DISAPPROVED. Exception No. 14 is
duplicative of Exception No. 13.
15. Covenants and Agreement [Lots 14 and
15] – [Agreement that Lots 14 and 15 will
not be sold separately]
Covenant in favor of: City of LA
5/10/55 Instrument No. 3313
in Book 47733, Page
115
APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such covenants.
16. Easement [Lots 31, 32 and 36][General
Right of Way]
Easement in favor of: Comm’wealth
Engineering
Company
7/29/59 Instrument No. 2230
in Book D-552, Page
715
APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
Attachment No. 1
217
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
17. Oil and Gas Lease [Lots 10, 21, 47, 48, 49
and 52]
Lessee: Standard Oil Company
8/10/62 Book M1081, Page
251
APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights), (b) CLTA
103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
18. Oil and Gas Lease [Lot 40]
Lessee: Aladdin Oil Company
12/4/62 Book M1081, Page
251
APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights), (b) CLTA
103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
19. Oil and Gas Lease [Lot 40]
Lessee: Aladdin Oil Company
12/4/62 Instrument No. 2697 Note: Title provided us with Document
No. 18 and needs to provide referenced
lease.
20. Covenant [Lots 13, 14 and 15 shall be
held as one parcel]
Covenant in favor of: City of LA
10/24/66 Instrument No. 1821 APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such agreement.
21. Covenant and Agreement [Lots 10, 21,
47, 38, 39, 52] – Lot 10 shall be parking
space until buildings no longer exist
Covenant in favor of: City of Culver City
4/24/63 Instrument No. 2456 APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such agreement.
22. Oil and Gas Lease [Lots 16, 17, 18, 19,
20, 45, 46]
Lessee: Aladdin Oil Company
8/20/68 Instrument No. 2176 APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights), (b) CLTA
103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
23. Oil and Gas Lease [Lots 16, 17, 18, 19,
20, 45, 46]
Lessee: Standard Oil Company
9/4/68 Instrument No. 2559
in Book M2973,
Page 409
APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue (a)
CLTA 100.29 (Mineral Rights) and (b)
CLTA 103.23 (Oil/Gas Lease) (modified
for Owner).
24. Oil and Gas Lease
***THE DOCUMENT IS ILLEGIBLE***
Lessee: Standard Oil Company
9/13/68 Instrument No. 3442 APPROVAL CONDITIONED UPON the
(a) delivery of a legible copy of such
document and (b) in the alternative, (i)
deletion of this exception, or (ii) the Title
Attachment No. 1
218
Company's agreement to issue CLTA
Title Company’s agreement to issue (1)
CLTA 100.29 (Mineral Rights), (2) CLTA
103.10 (Damage by Subsurface
Owners) and (3) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
25. Oil and Gas Lease [Lots 37, 38, 39]
Lessee: Aladdin Oil Corporation
11/7/68 Instrument No. 2189 APPROVAL CONDITIONED UPON the
Title Company’s agreement to issue
(a)CLTA 100.29 (Mineral Rights), (b)
CLTA 103.10 (Damage by Subsurface
Owners) and (c) CLTA 103.23 (Oil/Gas
Lease) (modified for Owner).
26. Full Reconveyance [Lot 55] 5/20/69 Instrument No. 2248 DISAPPROVED. Preliminary Title
Report incorrectly references “Covenant
and Agreement” and references a
reconveyance of a loan that
encumbered property that is not
included in the Legal Description.
27. Temporary Right of Entry [Lot 24]
In favor of: City of LA
8/18/69 Instrument No. 2651 DISAPPROVED. Construction has
been completed. Accordingly,
temporary right of entry has expired.
28. Temporary Right of Entry [Lot 21]
In favor of: City of LA
8/21/69 Instrument No. 3173 DISAPPROVED. Construction has
been completed. Accordingly,
temporary right of entry has expired.
29. Temporary Right of Entry [Lot 23]
In favor of: City of LA
11/24/69 Instrument No. 1801 DISAPPROVED. Construction has
been completed. Accordingly,
temporary right of entry has expired.
30. Temporary Right of Entry [Lot 27]
In favor of: City of LA
1/15/70 Instrument No. 2858 DISAPPROVED. Construction has
been completed. Accordingly,
temporary right of entry has expired.
31. Easement [Lot 34]
In favor of: Culver City
8/21/69 Instrument No. 1647 APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
32. Covenant [Lots 1, 2 and 3 shall be held as
one parcel]
In favor of: City of LA
9/13/72 Instrument No. 2974 APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such agreement.
33. An Offer of Dedication for Public Street
Purposes [Lot 1]
Un favor of: City of LA
9/26/72 Instrument No. 2769 APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
Attachment No. 1
219
reference the fact that said offer of
dedication is as depicted on the
ALTA/ACSM Survey prepared by
___________________ as Job No.
________________.
34. Covenant and Agreement Regarding Off-
Site Parking [Lots 29, 30, 31, 32, 33, and
36]
In favor of: City of LA
9/18/75 Instrument No. 3682 DISAPPROVED. Covenant and
Agreement expired upon demolition of
buildings on these lots.
35. Land lies within the boundaries of the
Washington – Culver No. 3
Redevelopment Project Area
11/26/75 Instrument No. 4313 APPROVED.
36. Covenant Regarding Off-Site Parking
[Lots 34 and 35]
In favor of: Culver City
2/11/83 Instrument No. 83-
170829
DISAPPROVED. Covenant and
Agreement expired upon demolition of
buildings on these lots.
37. Covenant [Lots 4 and 5 shall be held as
one parcel]
In favor of: City of LA
3/1/88 Instrument No. 88-
279126
APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such agreement.
38. Covenant [Lots 4, 5 and 6 shall be held as
one parcel]
In favor of: City of LA
7/7/89 Instrument No. 89-
1085707
APPROVAL CONDITIONED UPON the
Title Company's agreement to issue an
endorsement insuring against any loss
or damage arising from any attempted
enforcement of the conditions,
covenants and restrictions referenced in
the document evidencing this exception
arising from any past or present violation
of such agreement.
39. Grant Deed and Easement Agreement
In favor of: MTA
1/15/91 Instrument No. 91-
63428
APPROVAL CONDITIONED UPON (a)
the Title Company’s agreement to issue
CLTA 103.2 (Easement, Damage – Use
or Maintenance) (modified for Owner)
and (b) modification of said exception to
reference the fact that said easement is
as depicted on the ALTA/ACSM Survey
prepared by ___________________ as
Job No. ________________.
40. Deed of Trust [Lot 46] [Between Marc
Chiat, as Trustor and Deanie Kramer as
Beneficiary for $210,000.00]
Note: Marc Chiat does not own the
property anymore and the DOT should
have been reconveyed during a previous
transfer of the Property.
12/18/2002 Instrument No. 02-
3104847
DISAPPROVED.
41. Deed of Trust [Lots 34 and 35] [Between
8801 Limited, LLC, as Trustor, and
California Environmental Redevelopment
Fund, LLC, as Beneficiary]
1/4/05 Instrument No. 05-
0027751
DISAPPROVED.
Attachment No. 1
220
Note: Property no longer owned by 8801
Limited, LLC. Believe DOT should have
been reconveyed through transfer of the
Property.
42. Option Agreement [Lots 10, 21, 47, 48
][Option in favor of City of Culver City]
3/10/11 Instrument No.
20110371813
DISAPPROVED.
43. Deed of Trust [Culver City Redevelopment
Agency, as Trustor and City of Culver
City, as Beneficiary][[To Secure (a)
Cooperation Agreement dated 1/15/09, (b)
Cooperation Agreement dated 1/15/11, (c)
Cooperating Agreement dated 2/22/11,
and (d) Option Agreement. [Lots 10, 21,
47, 48]
3/10/11 Instrument No.
2011037184
DISAPPROVED.
44. A financing statement recorded March 10,
2011 as Instrument No. 20110371817
recorded in California. [Lots 10, 21, 47,
48]
3/10/11 Instrument No.
20110371817
DISAPPROVED
45. Grant Deed between Culver City
Redevelopment Agency, as Grantor, and
the City of Culver City as Grantor. [Lots 28
– 36, 46]
All: Quitclaimed back to CCRA on
10/9/12
Conditions
(1) Develop, use, operate and
maintain the Property solely in
accordance with the Purchase
Agreement.
(2) Not discriminate upon the basis
of race, color, ancestry, national
origin, etc. (NOTE: Sexual
orientation not protected)
(3) All leases, deeds or contracts
shall contain specific
nondiscrimination or
nonsegregation clauses.
3/14/11 Instrument No.
20110388074
DISAPPROVED
46. Option Agreement for Perpetual
Easement between LACMTA, Agency,
and Culver City
10/3/11 Instrument No.
2011337175
DISAPPROVED.
47. Lien for property tax ($178.96) 3/13/13 Instrument No.
20130376885
DISAPPROVED.
48. Lien for property tax ($75.52) 3/13/13 Instrument No.
20130376886
DISAPPROVED.
49. Lien for property tax ($178.96) 3/13/13 Instrument No.
20130376887
DISAPPROVED.
50. Lien for property tax ($75.52) 3/13/13 Instrument No.
20130376888
DISAPPROVED.
51. Lien for property tax ($184.56) 3/13/13 Instrument No.
20130376889
DISAPPROVED.
52. Lien for property tax ($72.31) 3/13/13 Instrument No. DISAPPROVED.
Attachment No. 1
221
20130376890
53. Lien for property tax ($392.60) 3/13/13 Instrument No.
20130376891
DISAPPROVED.
54. Lien for property tax ($97.39)
3/13/13 Instrument No.
20130376892
DISAPPROVED.
55. Rights of Parties in Possession DISAPPROVED. Please either specify
any of the “parties in possession” or
delete this exception.
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SUMMARY REPORT PURSUANT TO
CALIFORNIA HEALTH AND SAFETY CODE SECTION 33433
ON AN
IMPLEMENTATION AGREEMENT
BY AND AMONG
THE CITY OF CULVER CITY
AND
THE SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT AGENCY
AND
LOWE ENTERPRISES REAL ESTATE GROUP,
A CALIFORNIA CORPORATION
The following Summary Report has been prepared pursuant to California Health and Safety
Code Section 33433 (Section 33433). The Summary Report sets forth certain details of the
proposed Implementation Agreement (Agreement) by and among the City of Culver City (City),
the Successor Agency to the Culver City Redevelopment Agency (Successor Agency) and
Lowe Enterprises Real Estate Group (Developer). The Agreement requires the City and the
Successor Agency to convey an irregularly shaped property located at the intersections of
Venice, Washington and National Boulevards to the Developer. In turn, the Developer is
required to construct a mixed-use commercial and residential project that also includes a large-
scale public open space, and parking to serve the adjacent Expo Line station.
The “Development Site” consists of the following properties:
1. Parcels totaling 98,486 square feet that were originally owned by the former Culver City
Redevelopment Agency (Former Agency), and were transferred to the Successor
Agency to the Culver City Redevelopment Agency (Successor Agency) on October 12,
2012 (Agency Parcels);|1010|
2. A 41,700 square foot parcel that is owned by the City (City Parcel);
3. A 72,773 square foot “Easement Area” that is located on the northerly 91 feet of a right-
of-way parcel owned by the Los Angeles County Metropolitan Transit Authority
(LACMTA); and
4. The vacation of 33,255 square feet of Exposition Boulevard.
As a result of the dissolution of redevelopment throughout the State of California, the Successor
Agency was required to submit a Long Range Property Management Plan (LRPMP) to the State
of California Department of Finance (DOF). The LRPMP submitted by the Successor Agency
included the sale of the Agency Parcels to the Developer based on the terms and conditions
|1010| In June 2011, the State of California dissolved redevelopment agencies throughout California. The
Agency Parcels were transferred by operation of law to the Successor Agency.
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identified in the Agreement. In correspondence dated March 18, 2014, the DOF approved the
Successor Agency’s LRPMP. Thus, it can be concluded that the financial terms included in the
Agreement have been approved by the DOF.
The Former Agency used property tax increment revenue to assemble the Agency Parcels over
a multi-year period commencing in 2005. As a result, the proposed conveyance of the Agency
Parcels to the Developer is subject to the reporting requirements imposed by Section 33433.
Specifically, Section 33433 requires the conveying entity to prepare a report that summarizes
the financial terms associated with the disposition transaction for the Agency Parcels. The
following Summary Report is based upon the information contained within the Agreement, and
is organized into the following seven sections:
I. Salient Points of the Agreement: This Section summarizes the major responsibilities
imposed on the Developer, the Successor Agency and the City by the Agreement.
II. Cost of the Agreement to the Former Agency: This section details the costs incurred
by the Former Agency to implement the Agreement.
III. Estimated Value of the Interests to be Conveyed Determined at the Highest Uses
Permitted under the Redevelopment Plan: This section estimates the value of the
Agency Parcels determined at the highest use permitted under the Redevelopment Plan
for the Culver City Redevelopment Project, Component Area 3 (Project Area). This
valuation is also based on the scope of development allowed by Planned Development
Zone No. 11 for the Washington National Transit Oriented Development Planned
Development (PD) Zone No. 11 adopted as an amendment to the Culver City Zoning
Map and Zoning Code pursuant to Section 17.200.015 of the Culver City Municipal Code
(PD Zone).
IV. Estimated Reuse Value of the Interests to be Conveyed: This section summarizes
the valuation estimate for the Agency Parcels based on the required scope of
development, and the other conditions and covenants required by the Agreement.
V. Consideration Received and Comparison with the Established Value: This section
describes the compensation to be received by the Successor Agency, and explains any
difference between the compensation to be received and the established value of the
Agency Parcels.
VI. Blight Elimination: This section explains how the Agreement will assist in alleviating
blight in the Project Area.
VII. Conformance with the AB1290 Implementation Plan: This section describes how the
Agreement achieves goals identified in the adopted AB1290 Implementation Plan.
This Summary Report and the Agreement are to be made available for public inspection prior to
the approval of the Agreement.
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I. SALIENT POINTS OF THE AGREEMENT
Scope of Development
The required scope of development for the entire Development Site can be described as
follows:
Land Use Minimum Maximum
Office 159,734 square feet 200,000 square feet
Retail / Restaurant 25,000 square feet 85,000 square feet
Hotel 128 rooms 148 rooms
Apartments 120 units 200 units
Parking 1,526 space 1,567 spaces
The “Project” must comport with the PD Zone in place on the Development Site. In addition to
the land use requirements identified in the preceding table, the Project must comply with the
following requirements:
1. The Developer must include at least 14,500 square feet of public open space in the
Project;
2. The Project’s site coverage may not exceed 55%;
3. The Project’s height cannot exceed 56 feet; and
4. The Developer must provide 600 parking spaces to serve the adjacent Expo Line station
during Phase I of the Expo Line construction process; the Expo Line parking requirement
will be reduced to 300 spaces during the second phase of Expo Line construction.
Developer Responsibilities
The Agreement requires the Developer to accept the following responsibilities:
1. The Developer must purchase the Agency Parcels from the Successor Agency for a
purchase price of $8.2 million.
2. The Developer must purchase the City Parcels at a base purchase price of $15.6 million.
The purchase price for the City Parcels will be reduced to reflect the following
extraordinary costs, which will be established in the construction contract approved by
the City Manager at the close of escrow for the conveyance of the City Parcels:
a. The Developer’s cost to undertake all necessary utilities relocation on or around
the Development Site;
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b. The Developer’s cost to provide all necessary infrastructure improvements to the
Development Site including curbs, gutters, sidewalks, street trees, lighting, and
special paving at crosswalks abutting the Project; and
c. The costs incurred by the Developer to relocate existing tenants and occupants
of businesses located on the City Parcels:
i. The Developer must comply with all applicable federal, state and local
laws pertaining to relocation benefits and assistance.
ii. Within 30 days following the execution of the Agreement, the Developer
must provide the City with a $900,000 irrevocable letter of credit to be
used to assure the Developer’s payment of the required relocation
benefits.
iii. The Developer must indemnify the City and the Successor Agency from
any relocation cost liabilities, lawsuits, penalties and damages.
3. The Developer must provide the City with participation payments if the Project achieves
cumulative annual returns that exceed 25% of the Developer’s equity investment in the
Project. The participation payment obligation will be calculated each time any
component of the Project is refinanced, and upon the first sale of each component of the
Project.
4. The Developer must accept conveyance of the Development Site in an as-is condition.
The costs required to demolish the temporary parking lot located on the Development
Site must be borne by the Developer.
5. The Developer must provide the following prior to the close of escrow on the
conveyance of the Development Site:
a. Executed copies of all documents to which the Developer is a party;
b. The adjusted purchase price for the City Parcels;
c. The Art in Public Places in-lieu fee, if applicable;
d. The insurance certificates and endorsements required by the Agreement;
e. An executed construction contract;
f. Evidence that sufficient construction loan and equity funds have been committed
to pay for the Project costs;
g. Evidence that the project entitlements have been approved, that building permits
are available for issuance, and the completion of plan check by the City; and
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h. Conveyance of all encroachments required to permit the Developer to construct
the scope of development required by the Agreement.
6. The Developer may not transfer ownership of the Development Site prior to the
completion of the Project’s construction. The Developer may request approval from the
City to change control or ownership in order to obtain financing to construct the Project
as long as the key members of the Developer continue to exercise management and
operational control of the Project.
7. The Developer, and any contractors and subcontractors engaged to construct the
Project, must comply with any applicable federal and state labor law requirements.
8. The Developer must construct the Project in accordance with the Scope of Development
and Schedule of Performance Attachments to the Agreement. In addition to the Project
scope previously described, the Developer must fulfill the following requirements:
a. The Developer must construct a “Shoring Wall” or “Isolation Wall” to be located
underground at the depth of the parking garage along the property line between
the Easement Area and the Expo Light Rail project. This Wall must be
constructed to protect the Expo Light Rail project from adverse impacts created
by the construction of the Project’s parking garage.
b. In addition to the dedicated Expo Line parking spaces, the Developer must
construct a sufficient number of parking spaces to fulfill the City’s Parking Code
requirements for the commercial and residential uses in the Project. No shared
parking reductions will be provided by the City.
c. The Project must be developed to meet the requirements to qualify for LEED
certification from the United States Green Building Council under the Leadership
in Energy and Environmental Design Green Building Rating System for New
Construction and Major Renovations. However, the Developer will not be
required to apply for certification.
d. The Project must comply with the CalGreen requirements and sustainable
development principles required by the Project’s entitlements.
e. The Developer must comply with the Art in Public Places Program requirement
imposed by the City. A portion of the requirement can be fulfilled with art
provided within the Project, and the balance can be fulfilled by the payment of an
in-lieu fee to the City.
9. The Developer must maintain the Development Site and the Project in compliance with
the terms of the Redevelopment Plan and the applicable provisions of the Culver City
Municipal Code.
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Successor Agency and City Responsibilities
The Agreement imposes the following responsibilities on the Successor Agency and the City:
1. The Successor Agency must convey the Agency Parcels to the Developer, in
accordance with the terms of the Agreement, for a purchase price of $8.2 million.
2. The City must convey the City Parcels to the Developer for a base purchase price of
$15.6 million minus the credits to the land price defined in the Agreement.
3. The City must make commercially reasonable efforts to assist the Developer in obtaining
the necessary encroachments from the City of Los Angeles, the California Department of
Transportation, and any other applicable governmental agencies.
4. During the Project’s construction period, the City must provide temporary replacement
parking in the Ince Parking structure to serve the Expo Line station.
II. COST OF THE AGREEMENT TO THE FORMER AGENCY
The Former Agency incurred the following costs associated with the Successor Agency Parcels:
Land Acquisition $18,425,000
Demolition Costs 3,095,000
Relocation 1,393,000
Miscellaneous Assemblage Costs 329,000
Station Redesign/CIDH Piles Construction 3,237,000
Total Previously Incurred Costs $26,479,000
Based on the terms of the Agreement, the Successor Agency will receive a land payment of
$8,200,000. Thus the net cost associated with the Agency Parcels is $18,278,000.
III. ESTIMATED VALUE OF THE INTERESTS TO BE CONVEYED DETERMINED AT
THE HIGHEST USE PERMITTED UNDER THE REDEVELOPMENT PLAN
Section 33433 requires the Former Agency to identify the value of the interests being conveyed
at the highest use allowed by the requirements imposed by the Redevelopment Plan. The
valuation must be based on the assumption that near-term development is required, but the
valuation does not take into consideration any extraordinary use, quality and/or income
restrictions that are being imposed on the development.
The Agency Parcels are subject to the PD Zone development requirements, and to a parking
license agreement with LACMTA that remains in effect through September 2031. In an
appraisal dated June 10, 2013, Lea Associates, Inc. (Appraiser) concluded that the current fair
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market value of the Agency Parcels is $800,000. This conclusion is based on the following
findings:
1. The requirement that 300 parking spaces be provided to serve the Expo Line station
reduces the value supported by the Agency Parcels to a negative amount.
2. The current value of the Agency Parcels, before consideration of the LACMTA parking
license agreement, is estimated at $9.5 million. This equates to $100 per square foot for
the Agency Parcels.
3. The Appraiser escalated the current unencumbered value of $9.5 million at a 3% annual
land value escalation rate through 2021. This 2031 value was then discounted to
present value at a development land speculation rate of 15% to 20% per year. The
resulting present value falls within the range of $500,000 to $1.1 million.
4. The Appraiser selected the $800,000 mid-point of the value range as the current fair
market value of the Agency Parcels.
IV. ESTIMATED REUSE VALUE OF THE INTERESTS TO BE CONVEYED
Under the terms of the Agreement, the Agency Parcels are being combined with the City
Parcels, the Easement Areas and the vacation of Exposition Boulevard to create the
Development Site. The creation of this larger, more efficiently configured site, significantly
enhances the value supported by the Agency Parcels.
The fair reuse value supported by the Agency Parcels is estimated at $8.3 million based on the
following assumptions:
1. The Appraiser estimated the fair market value of the Agency Parcels at $9.5 million
assuming no extraordinary encumbrances are imposed.
2. The Agreement imposes extraordinary requirements on the Developer that create the
following impact on the supportable value for the Agency Parcels:
a. The extraordinary costs are currently estimated at $3 million.
b. When the $3 million in extraordinary costs are allocated across the Development
Site, the costs equate to approximately $12 per square foot of land area.
c. The Agency Parcels total 98,486 square feet of land area. At $12 per square of
land area, the extraordinary costs attributable to the Agency Parcels equal $1.2
million.
d. The resulting fair reuse value of the Agency Parcels is estimated at $8.3 million.
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V. CONSIDERATION RECEIVED AND COMPARISON WITH THE ESTABLISHED
VALUE
The Agreement requires the Successor Agency to convey the Agency Parcels to the Developer
for $8.2 million. This is amount is $7.4 million greater than the fair market value supported by
the Agency Parcels on a standalone basis, and $100,000 less than the estimated fair reuse
value of the Agency Parcels.
The consideration to be received by the Successor Agency is approximately 1% less than the
estimated reuse value, which can be considered an insignificant differential. This difference is
further mitigated by the fact that the sales proceeds to be received by the Successor Agency
are a fixed amount. Comparatively, the credits for extraordinary costs that will be applied to the
purchase price for the City Parcels are not a capped amount. Therefore, if the extraordinary
costs that are actually incurred by the Developer exceed $3 million, the excess costs will be
completely absorbed in the form of a reduction to the compensation for the City Parcels.
It is clear that substantial value enhancement is created by consolidating the Agency Parcels
with the adjacent properties that make up the Development Site. When that is considered in
conjunction with the risk mitigation associated with the fixed purchase price payment that will be
received for the Agency Parcels, it can be concluded that the Successor Agency is receiving fair
compensation for the interests being conveyed to the Developer.
VI. BLIGHT ELIMINATION
The Agency Parcels consist of 31 blighted commercial properties that were assembled by the
Former Agency over a multi-year period. The Former Agency demolished the existing
improvements, and replaced these improvements on a temporary basis with a surface parking
lot. Development of the Agency Parcels with a major transit oriented development will eliminate
the blighting conditions caused by the improper use and underutilization of land.
The development of the Agency Parcels will address the following blighting conditions in
Component Area No. 3 of the Project Area that were identified in the 2010 – 2014
Implementation Plan:
? Section 3.7 – Significant business vacancies were noted in the eastern end of
Component Area 3; and
? Section 3.9 – Code enforcement issues were identified in the Washington and National
Boulevards area.
Thus, the proposed Project fulfills the blight elimination requirement imposed by Section 33433.
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VII. CONFORMANCE WITH THE AB1290 IMPLEMENTATION PLAN
The development of a transit oriented mixed-use development on the Agency Parcels, in
concert with LACMTA, was specifically identified in the Five Year Implementation Plan for 2010
– 2014. The transit oriented development project was identified as the largest project proposed
to be undertaken during the Implementation Plan term. The stated goal was to redirect the
development of the Agency Parcels into a commercial/residential mixed-use complex that will
synergistically integrate with the Expo Line station. The implementation of the Agreement fulfills
the goals established in Five Year Implementation Plan for 2010 – 2014.
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RESOLUTION NO. 2014-R____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CULVER
CITY, CALIFORNIA PURSUANT TO THE PROVISIONS OF
CALIFORNIA HEALTH AND SAFETY CODE SECTION 33433
APPROVING (1) ENTRY BY THE CITY AND THE SUCCESSOR
AGENCY TO THE CULVER CITY REDEVELOPMENT AGENCY
INTO A PROPOSED IMPLEMENTATION AGREEMENT BETWEEN
THE CITY AND THE SUCCESSOR AGENCY AND LOWE
ENTERPRISES REAL ESTATE GROUP IN ORDER TO CONVEY
THE REAL PROPERTY LOCATED AT 8829, 8831, 8839, 8841, 8843
EXPOSITION BOULEVARD; 8801, 8803 WASHINGTON
BOULEVARD; 8824, 8825, 8828, 8830-8834, 8836, 8838, 8840, 8842,
8846 NATIONAL BOULEVARD; 8900-8906, 8910-8912, 8914-8918,
8920, 8926, 8930, AND 8936 VENICE BOULEVARD FOR THE
DEVELOPMENT OF A HIGH QUALITY TRANSIT ORIENTED
DEVELOPMENT; AND (2) RELATED ACTIONS.
WHEREAS, Assembly Bill No. X1 26 (2011-2012 1st Ex. Sess.) (referred to
herein as “Dissolution Act”) was signed by the Governor of California on June 28, 2011,
making certain changes to the California Community Redevelopment Law (Part 1
(commencing with Section 33000) of Division 24 of the California Health and Safety Code)
(the “Redevelopment Law”) and to the California Health and Safety Code (“H&S Code”)
including adding Part 1.8 (commencing with Section 34161) (“Part 1.8”) and Part 1.85
(commencing with Section 34170) (“Part 1.85”) to Division 24 of the H&S Code; and
WHEREAS, on December 29, 2011, the California Supreme Court delivered its
decision in California Redevelopment Association v. Matosantos, finding the Dissolution Act
largely constitutional and reformed certain deadlines set forth in the Dissolution Act; and
WHEREAS, pursuant to the Dissolution Act, as modified by the California
Supreme Court on December 29, 2011 by its decision in California Redevelopment
Association v. Matosantos, all California redevelopment agencies, including the Culver City
Redevelopment Agency (“Former CCRA”), were dissolved on February 1, 2012, and
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successor agencies were designated and vested with the responsibility of paying, performing
and enforcing the enforceable obligations of the former redevelopment agencies and
expeditiously winding down the business and fiscal affairs of the former redevelopment
agencies; and
WHEREAS, the City Council of the City of Culver City adopted Resolution No.
2012-R001 on January 9, 2012, pursuant to Part 1.85 of the Dissolution Act, accepting for the
City the role of successor agency to the Former CCRA (“Successor Agency”); and
WHEREAS, on February 6, 2012, the Board of Directors of the Successor
Agency, adopted Resolution No. 2012-SA001 naming itself the “Successor Agency to the
Culver City Redevelopment Agency”, the sole name by which it will exercise its powers and
fulfill its duties pursuant to Part 1.85 of the Dissolution Act and establishing itself as a
separate legal entity with rules and regulations that will apply to the governance and
operations of the Successor Agency; and
WHEREAS, the Dissolution Act was amended by Assembly Bill No. 1484 (“AB
1484”) on June 27, 2012, which, among other things, imposed procedures for the Successor
Agency’s disposition of certain Former CCRA-owned real property including the required
preparation of a Long Range Property Management Plan specifying the use and disposition
of all such property and for the required approval of the Long Range Property Management
Plan by the California Department of Finance (“DOF”). The Dissolution Act has since been
further amended by Assembly Bill No. 1585, Senate Bill No. 341 and Assembly Bill No. 471;
and
WHEREAS, pursuant to H&S Code Section 34191.5(b) of the Dissolution Act,
on July 18, 2013, the Successor Agency prepared and submitted to the DOF for approval its
initial Long Range Property Management Plan, as approved by its Oversight Board, that
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addressed the disposition and use of certain real properties of the Former CCRA. On March
13, 2014, the Successor Agency prepared and submitted to the DOF for approval certain
revisions to its initial Long Range Property Management Plan, as approved by its Oversight
Board, that addressed changes to the disposition of certain parking parcels of the Former
CCRA as described in the revised Long Range Property Management Plan; and
WHEREAS, the DOF, by letter dated March 18, 2014, issued its determination
on the Successor Agency’s Long Range Property Management Plan (comprised solely of the
July 18, 2013 initial submittal as revised by the March 13, 2014 revision) (“LRPMP”),
approving the Successor Agency’s use and disposition of all the properties listed in the
LRPMP. The DOF’s letter states that its approval of the LRPMP took into account Resolution
No. 2014-OB004 approving the March 13, 2014 revised LRPMP and accompanying Agenda
Item Report and acknowledges the Successor Agency’s submittal of its LRPMP on July 18,
2013 and the revised LRPMP on March 13, 2014; and
WHEREAS, the DOF-approved LRPMP provides for the Successor Agency’s
sale and transfer of that certain real property located at 8829 Exposition Boulevard, 8831
Exposition Boulevard, 8840 National Boulevard, 8841 Exposition Boulevard, 8843 Exposition
Boulevard, 8824 National Boulevard, 8825 National Boulevard, 8828 National Boulevard,
8801 Washington Boulevard, 8803 Washington Boulevard, 8830-8834 National Boulevard,
8836 National Boulevard, 8838 National Boulevard, 8839 Exposition Boulevard, 8842
National Boulevard, and 8846 National Boulevard, Culver City, California, and 8920 Venice
Boulevard, Los Angeles, California (“Agency Parcels”) from the Successor Agency to Lowe
Enterprises Real Estate Group (“Developer”) for the development of a high quality transit
oriented development (“Project”); and
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WHEREAS, in furtherance of the LRPMP, the Successor Agency proposes to
enter into an Implementation Agreement (“Implementation Agreement”) with the City and the
Developer for the development of the Project; and
WHEREAS, the City proposes to enter into the Implementation Agreement with
the Successor Agency and the Developer for the development of the Project; and
WHEREAS, the Implementation Agreement also provides for the City’s sale and
transfer of that certain real property identified in the Implementation Agreement as the “City
Parcels” from the City to the Developer for the development of the Project; and
WHEREAS, the Implementation Agreement contains all of the provisions, terms
and obligations required by State and local law, and the Developer represents that it
possesses the qualifications and financial resources necessary to develop and operate the
Project as set forth in the Implementation Agreement, all of which development will be in
accordance with the purposes and objectives of the Redevelopment Law; and
WHEREAS, pursuant to Section 33433 of the Redevelopment Law, the
Successor Agency is authorized, with the consent of the City Council, to sell or lease for
development pursuant to the applicable redevelopment plan property of the Successor
Agency acquired in whole or in part, directly or indirectly, with tax increment moneys; and
WHEREAS, the site for the Project contains such property; and
WHEREAS, a copy of the Implementation Agreement and a summary of this
transaction (which by this reference is incorporated herein as if set forth in full at this point)
setting forth all of those matters required by the provisions of Section 33433 of the
Redevelopment Law have been available for public inspection from and after June 26, 2014;
and
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WHEREAS, notice of the July 14, 2014 hearing to consider the Implementation
Agreement was given in the manner required by law; and
WHEREAS, at said public hearing, the City Council received and considered a
staff report (which by this reference is incorporated herein as if set forth in full at this point)
and testimony; and
WHEREAS, in accordance with the California Environmental Quality Act
(“CEQA”) set forth in California Public Resources Code Section 21000 et seq., the State
CEQA Guidelines set forth in Title 14, California Code of Regulations Section 15000 et seq.,
and procedures adopted by the City relating to environmental evaluation of public and private
projects, an environmental impact report was certified and adopted by the Former CCRA on
November 2, 1998, which identified and analyzed the potential environmental impacts
associated with the Project, among others; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have
occurred.
NOW, THEREFORE, the City Council of the City of Culver City DOES HEREBY
RESOLVE as follows:
SECTION 1. The foregoing recitals are true and correct and are a substantive
part of this Resolution.
SECTION 2. The City Council has received and heard all oral and written
objections to the Successor Agency’s proposed sale and transfer of the Agency Parcels to
the Developer in accordance with the terms set forth in the Implementation Agreement,
pursuant to the authority of the DOF-approved LRPMP, and to other matters pertaining to this
transaction, and that all such oral and written objections are hereby overruled.
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SECTION 3. The Implementation Agreement will assist in the elimination of
blight.
SECTION 4. The Implementation Agreement is consistent with the
implementation plan adopted pursuant to Section 33490 of the Redevelopment Law.
SECTION 5. The consideration for the Agency Parcels is not less than the fair
market value at its highest and best use in accordance with the redevelopment plan.
SECTION 6. The City Council hereby approves the Successor Agency’s entry
into the Implementation Agreement and the sale and transfer of the Agency Parcels located
at 8829 Exposition Boulevard, 8831 Exposition Boulevard, 8840 National Boulevard, 8841
Exposition Boulevard, 8843 Exposition Boulevard, 8824 National Boulevard, 8825 National
Boulevard, 8828 National Boulevard, 8801 Washington Boulevard, 8803 Washington
Boulevard, 8830-8834 National Boulevard, 8836 National Boulevard, 8838 National
Boulevard, 8839 Exposition Boulevard, 8842 National Boulevard, and 8846 National
Boulevard, Culver City, California, and 8920 Venice Boulevard, Los Angeles, California from
the Successor Agency to the Developer in accordance with the terms set forth in the
Implementation Agreement, pursuant to the authority of the DOF-approved LRPMP.
SECTION 7. The City Council hereby approves the City’s entry into the
Implementation Agreement and the sale and transfer of the City Parcels from the City to the
Developer in accordance with the terms set forth in the Implementation Agreement.
SECTION 8. The City Council hereby authorizes and directs the City Manager,
of the City, or designee, (i) to take all actions and to execute any and all documents,
instruments, and agreements necessary or desirable on behalf of the City, as approved by
the City Manager of the City and the City Attorney, in order to implement and effectuate the
sale and transfer of the City Parcels from the City to the Developer in accordance with the
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terms and conditions set forth in the Implementation Agreement and to effectuate all other
actions approved by this Resolution, including, without limitation, approving extensions of
deadlines, amendments, changes, implementations, or revisions to documents, instruments,
and agreements as determined necessary by the City Manager, or designee, and executing
all documents, instruments, and agreements on behalf of the City as necessary or required
including, without limitation, the Implementation Agreement, the City Grant Deed, the
Transfer of Easement Area Documents, the Release of Construction Covenants, the
Participation Agreement, and the Consent to Assignment and Assumption Agreement and (ii)
to administer the City’s obligations, responsibilities, and duties to be performed pursuant to
this Resolution and all documents, instruments, and agreements required by and for the sale
and transfer of the City Parcels from the City to the Developer.
SECTION 9. If any provision of this Resolution or the application of any such
provision to any person or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this Resolution that can be given effect without the invalid
provision or application, and to this end the provisions of this Resolution are severable. The
City Council declares that it would have adopted this Resolution irrespective of the invalidity
of any particular portion of this Resolution.
SECTION 10. The adoption of this Resolution is not intended to and shall not
constitute a waiver by the City of any constitutional, legal or equitable rights that the City may
have to challenge, through any administrative or judicial proceedings, the effectiveness
and/or legality of all or any portion of the Dissolution Act, any determinations rendered or
actions or omissions to act by any public agency or government entity or division in the
implementation of the Dissolution Act, and any and all related legal and factual issues, and
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the City expressly reserves any and all rights, privileges, and defenses available under law
and equity.
SECTION 11. The City hereby determines that an environmental impact report
was certified and adopted by the Former CCRA on November 2, 1998, which identified and
analyzed the potential environmental impacts associated with the Project, among others. As
currently conceptualized, this activity has been determined to be adequately addressed in the
EIR, and there is no substantial change in circumstances, new information of substantial
importance, or project changes which would warrant additional environmental review at this
time; therefore, no further environmental review is required at this time under CEQA pursuant
to State CEQA Guidelines Section 15162. In the future, substantial change in circumstances,
new information of substantial importance, or project changes will likely occur, warranting
additional environmental review at that time under CEQA pursuant to State CEQA Guidelines
Section 15162.
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SECTION 12. This Resolution shall take effect upon the date of its adoption.
APPROVED AND ADOPTED, this day of , 2014.
MEGHAN SAHLI-WELLS, Mayor
City of Culver City
ATTEST: APPROVED AS TO FORM:
MARTIN R. COLE, City Clerk CAROL SCHWAB, City Attorney
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RESOLUTION NO. 2014-SA____
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
SUCCESSOR AGENCY TO THE CULVER CITY REDEVELOPMENT
AGENCY APPROVING, AND RECOMMENDING TO ITS
OVERSIGHT BOARD APPROVAL OF, (1) THE SUCCESSOR
AGENCY’S ENTRY INTO AN IMPLEMENTATION AGREEMENT
BETWEEN THE CITY OF CULVER CITY AND THE SUCCESSOR
AGENCY AND LOWE ENTERPRISES REAL ESTATE GROUP IN
ORDER TO CONVEY THE REAL PROPERTY LOCATED AT 8829,
8831, 8839, 8841, 8843 EXPOSITION BOULEVARD; 8801, 8803
WASHINGTON BOULEVARD; 8824, 8825, 8828, 8830-8834, 8836,
8838, 8840, 8842, 8846 NATIONAL BOULEVARD; 8900-8906, 8910-
8912, 8914-8918, 8920, 8926, 8930, AND 8936 VENICE
BOULEVARD FOR THE DEVELOPMENT OF A HIGH QUALITY
TRANSIT ORIENTED DEVELOPMENT; (2) THE SUCCESSOR
AGENCY’S USE OF THE NET PURCHASE PRICE PROCEEDS
RECEIVED BY THE SUCCESSOR AGENCY AFTER CLOSE OF
ESCROW IN ACCORDANCE WITH THE DISSOLUTION ACT AND
OTHER APPLICABLE LAW; AND (3) RELATED ACTIONS.
WHEREAS, Assembly Bill No. X1 26 (2011-2012 1st Ex. Sess.) (referred to
herein as “Dissolution Act”) was signed by the Governor of California on June 28, 2011,
making certain changes to the California Community Redevelopment Law (Part 1
(commencing with Section 33000) of Division 24 of the California Health and Safety Code)
(the “Redevelopment Law”) and to the California Health and Safety Code (“H&S Code”)
including adding Part 1.8 (commencing with Section 34161) (“Part 1.8”) and Part 1.85
(commencing with Section 34170) (“Part 1.85”) to Division 24 of the H&S Code; and
WHEREAS, on December 29, 2011, the California Supreme Court delivered its
decision in California Redevelopment Association v. Matosantos, finding the Dissolution Act
largely constitutional and reformed certain deadlines set forth in the Dissolution Act; and
WHEREAS, pursuant to the Dissolution Act, as modified by the California
Supreme Court on December 29, 2011 by its decision in California Redevelopment
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Association v. Matosantos, all California redevelopment agencies, including the Culver City
Redevelopment Agency (“Former CCRA”), were dissolved on February 1, 2012, and
successor agencies were designated and vested with the responsibility of paying, performing
and enforcing the enforceable obligations of the former redevelopment agencies and
expeditiously winding down the business and fiscal affairs of the former redevelopment
agencies; and
WHEREAS, the City Council of the City of Culver City adopted Resolution No.
2012-R001 on January 9, 2012, pursuant to Part 1.85 of the Dissolution Act, accepting for the
City the role of successor agency to the Former CCRA (“Successor Agency”); and
WHEREAS, on February 6, 2012, the Board of Directors of the Successor
Agency, adopted Resolution No. 2012-SA001 naming itself the “Successor Agency to the
Culver City Redevelopment Agency”, the sole name by which it will exercise its powers and
fulfill its duties pursuant to Part 1.85 of the Dissolution Act and establishing itself as a
separate legal entity with rules and regulations that will apply to the governance and
operations of the Successor Agency; and
WHEREAS, the Dissolution Act was amended by Assembly Bill No. 1484 (“AB
1484”) on June 27, 2012, which, among other things, imposed procedures for the Successor
Agency’s disposition of certain Former CCRA-owned real property including the required
preparation of a Long Range Property Management Plan specifying the use and disposition
of all such property and for the required approval of the Long Range Property Management
Plan by the California Department of Finance (“DOF”). The Dissolution Act has since been
further amended by Assembly Bill No. 1585, Senate Bill No. 341 and Assembly Bill No. 471;
and
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WHEREAS, pursuant to the Dissolution Act, each successor agency shall have
an oversight board with fiduciary responsibilities to holders of enforceable obligations and to
the taxing entities that benefit from distributions of property taxes and other revenues
pursuant to H&S Code Section 34188 of the Dissolution Act; and
WHEREAS, the oversight board has been established for the Successor
Agency (hereinafter referred to as “Oversight Board”) and all seven (7) members have been
appointed to the Oversight Board pursuant to H&S Code Section 34179. The duties and
responsibilities of the Oversight Board are primarily set forth in H&S Sections 34179 through
34181 of the Dissolution Act; and
WHEREAS, pursuant to H&S Code Section 34191.5(b) of the Dissolution Act,
on July 18, 2013, the Successor Agency prepared and submitted to the DOF for approval its
initial Long Range Property Management Plan, as approved by its Oversight Board, that
addressed the disposition and use of certain real properties of the Former CCRA. On March
13, 2014, the Successor Agency prepared and submitted to the DOF for approval certain
revisions to its initial Long Range Property Management Plan, as approved by its Oversight
Board, that addressed changes to the disposition of certain parking parcels of the Former
CCRA as described in the revised Long Range Property Management Plan; and
WHEREAS, the DOF, by letter dated March 18, 2014, issued its determination
on the Successor Agency’s Long Range Property Management Plan (comprised solely of the
July 18, 2013 initial submittal as revised by the March 13, 2014 revision) (“LRPMP”),
approving the Successor Agency’s use and disposition of all the properties listed in the
LRPMP. The DOF’s letter states that its approval of the LRPMP took into account Resolution
No. 2014-OB004 approving the March 13, 2014 revised LRPMP and accompanying Agenda
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Item Report and acknowledges the Successor Agency’s submittal of its LRPMP on July 18,
2013 and the revised LRPMP on March 13, 2014; and
WHEREAS, the DOF-approved LRPMP provides for the Successor Agency’s
sale and transfer of that certain real property located at 8829 Exposition Boulevard, 8831
Exposition Boulevard, 8840 National Boulevard, 8841 Exposition Boulevard, 8843 Exposition
Boulevard, 8824 National Boulevard, 8825 National Boulevard, 8828 National Boulevard,
8801 Washington Boulevard, 8803 Washington Boulevard, 8830-8834 National Boulevard,
8836 National Boulevard, 8838 National Boulevard, 8839 Exposition Boulevard, 8842
National Boulevard, and 8846 National Boulevard, Culver City, California, and 8920 Venice
Boulevard, Los Angeles, California (“Property”) from the Successor Agency to Lowe
Enterprises Real Estate Group (“Developer”) for the development of a high quality transit
oriented development (“Project”); and
WHEREAS, in furtherance of the LRPMP, the Successor Agency proposes to
enter into an Implementation Agreement (“Implementation Agreement”) with the City and the
Developer for the development of the Project; and
WHEREAS, the Implementation Agreement contains all of the provisions, terms
and obligations required by State and local law, and the Developer represents that it
possesses the qualifications and financial resources necessary to develop and operate the
Project as set forth in the Implementation Agreement, all of which development will be in
accordance with the purposes and objectives of the Redevelopment Law; and
WHEREAS, pursuant to Section 33433 of the Redevelopment Law, the
Successor Agency is authorized, with the consent of the City Council, to sell or lease for
development pursuant to the applicable redevelopment plan property of the Successor
Agency acquired in whole or in part, directly or indirectly, with tax increment moneys; and
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WHEREAS, the site for the Project contains such property; and
WHEREAS, by resolution duly and regularly adopted at a regular meeting held
on the 14th day of July, 2014, the City Council provided the consent required by Section
33433 of the Redevelopment Law; and
WHEREAS, notice of the July 14, 2014 hearing to consider the proposed sale
was given in the manner required by law; and
WHEREAS, at said public hearing, the Successor Agency received and
considered a staff report (which by this reference is incorporated herein as if set forth in full at
this point) and testimony; and
WHEREAS, in accordance with the California Environmental Quality Act
(“CEQA”) set forth in California Public Resources Code Section 21000 et seq., the State
CEQA Guidelines set forth in Title 14, California Code of Regulations Section 15000 et seq.,
and procedures adopted by the City relating to environmental evaluation of public and private
projects, an environmental impact report was certified and adopted by the Former CCRA on
November 2, 1998, which identified and analyzed the potential environmental impacts
associated with the Project, among others; and
WHEREAS, the Successor Agency’s sale and transfer of the Property to the
Developer will be for the Agency Parcels Purchase Price as defined in Section 101 of the
Implementation Agreement and in accordance with the terms and conditions set forth therein.
The net purchase price proceeds received by the Successor Agency after the close of escrow
will be used by the Successor Agency in accordance with the Dissolution Act and other
applicable law; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have
occurred.
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NOW, THEREFORE, the Board of Directors of the Successor Agency to the
Culver City Redevelopment Agency DOES HEREBY RESOLVE as follows:
SECTION 1. The foregoing recitals are true and correct and are a substantive
part of this Resolution.
SECTION 2. The Successor Agency Board has received and heard all oral and
written objections to the Successor Agency’s proposed sale and transfer of the Property to
the Developer in accordance with the terms set forth in the Implementation Agreement,
pursuant to the authority of the DOF-approved LRPMP, and to other matters pertaining to this
transaction, and that all such oral and written objections are hereby overruled.
SECTION 3. The Successor Agency Board hereby approves, and recommends
to its Oversight Board the approval of, the Successor Agency’s entry into the Implementation
Agreement and the sale and transfer of the Property located at 8829 Exposition Boulevard,
8831 Exposition Boulevard, 8840 National Boulevard, 8841 Exposition Boulevard, 8843
Exposition Boulevard, 8824 National Boulevard, 8825 National Boulevard, 8828 National
Boulevard, 8801 Washington Boulevard, 8803 Washington Boulevard, 8830-8834 National
Boulevard, 8836 National Boulevard, 8838 National Boulevard, 8839 Exposition Boulevard,
8842 National Boulevard, and 8846 National Boulevard, Culver City, California, and 8920
Venice Boulevard, Los Angeles, California from the Successor Agency to the Developer in
accordance with the terms set forth in the Implementation Agreement, pursuant to the
authority of the DOF-approved LRPMP.
SECTION 4. The Successor Agency Board hereby authorizes and directs, and
recommends to its Oversight Board that it authorize and direct, the Executive Director, or
designee, of the Successor Agency, to use the net purchase price proceeds received by the
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Successor Agency after close of escrow for the Successor Agency’s sale and transfer of the
Property to the Developer in accordance with the Dissolution Act and other applicable law.
SECTION 5. The Successor Agency hereby authorizes and directs, and
recommends to its Oversight Board that it authorize and direct, the Executive Director of the
Successor Agency, or designee, (i) to take all actions and to execute any and all documents,
instruments, and agreements necessary or desirable on behalf of the Successor Agency, as
approved by the Executive Director of the Successor Agency and Successor Agency General
Counsel, in order to implement and effectuate the sale and transfer of the Property from the
Successor Agency to the Developer in accordance with the terms and conditions set forth in
the Implementation Agreement, to use the net purchase price proceeds received by the
Successor Agency after the Close of Escrow in accordance with the Dissolution Act and other
applicable law, and to effectuate all other actions approved by this Resolution, including,
without limitation, approving extensions of deadlines, amendments, changes,
implementations, or revisions to documents, instruments, and agreements as determined
necessary by the Executive Director, or designee, and executing all documents, instruments,
and agreements on behalf of the Successor Agency as necessary or required including,
without limitation, the Implementation Agreement, the Successor Agency Grant Deed, the
Transfer of Easement Area Documents, and the Participation Agreement, and (ii) to
administer the Successor Agency’s obligations, responsibilities, and duties to be performed
pursuant to this Resolution and all documents, instruments, and agreements required by and
for the sale and transfer of the Property from the Successor Agency to the Developer.
SECTION 6. If any provision of this Resolution or the application of any such
provision to any person or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of this Resolution that can be given effect without the invalid
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provision or application, and to this end the provisions of this Resolution are severable. The
Successor Agency declares that its Board would have adopted this Resolution irrespective of
the invalidity of any particular portion of this Resolution.
SECTION 7. The adoption of this Resolution is not intended to and shall not
constitute a waiver by the Successor Agency of any constitutional, legal or equitable rights
that the Successor Agency may have to challenge, through any administrative or judicial
proceedings, the effectiveness and/or legality of all or any portion of the Dissolution Act, any
determinations rendered or actions or omissions to act by any public agency or government
entity or division in the implementation of the Dissolution Act, and any and all related legal
and factual issues, and the Successor Agency expressly reserves any and all rights,
privileges, and defenses available under law and equity.
SECTION 8. The Successor Agency hereby determines that an environmental
impact report was certified and adopted by the Former CCRA on November 2, 1998, which
identified and analyzed the potential environmental impacts associated with the Project,
among others. As currently conceptualized, this activity has been determined to be
adequately addressed in the EIR, and there is no substantial change in circumstances, new
information of substantial importance, or project changes which would warrant additional
environmental review at this time; therefore, no further environmental review is required at
this time under CEQA pursuant to State CEQA Guidelines Section 15162. In the future,
substantial change in circumstances, new information of substantial importance, or project
changes will likely occur, warranting additional environmental review at that time under CEQA
pursuant to State CEQA Guidelines Section 15162.
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SECTION 9. This Resolution shall take effect upon the date of its adoption.
APPROVED AND ADOPTED, this day of , 2014.
JEFFREY COOPER, Chair
Successor Agency
ATTEST: APPROVED AS TO FORM:
MARTIN R. COLE, Secretary CAROL SCHWAB, Successor Agency
General Counsel
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