City of Culver City, California
Agenda Item Report
Meeting Date: 01/30/12 Item Number: J-2
JOINT CITY COUNCIL/REDEVELOPMENT AGENCY BOARD AGENDA ITEM: (1)
Approval of a Purchase and Sale Agreement with Hackman Capital Partners to
Purchase Public Parking Spaces at 8550 Higuera/8600 Hayden Place; and (2)
Direction to Staff to Commence Formation of a Parking District in the Hayden Tract.
Contact Person / Department:
Joe Susca/CDD
Todd Tipton/ CDD
Phone Number:
(310) 253-5763
(310) 253-5783
Fiscal Impact: Yes [X] No [] General Fund: Yes [X] No []
Public Hearing: [] Action Item: [X] Attachments: [X]
Commission Action Required: Yes [] No [X] Date: _______________
Public Notification (E-Mail) Redevelopment Agency Projects (01/27/12); (E-Mail) Meetings
and Agendas – Redevelopment Agency (01/27/12); (E-Mail) The Advisory Committee on
Redevelopment (01/17/12); (E-Mail) The Culver City Chamber of Commerce (01/17/12);
(U.S. Post) A public notice was mailed to businesses, residents, and property owners in
excess of a 500’ radius of the site (01/17/12); (E-Mail) Hackman Capital Partners
(01/26/12).
Department Approval:
Sol Blumenfeld: (01/25/12)
City Attorney Approval:
Carol Schwab (by H. Baker) (01/25/12)
City Special Counsel Approval:
Murray Kane: (01/25/12)
Chief Financial Officer Approval:
Jeff Muir (by N. Kimball)(01/26/12)
City Manager/Executive Director Approval:
John M. Nachbar (01/26/12)
RECOMMENDATION:
Staff recommends the City Council approve a Purchase and Sale Agreement
(Agreement) with Hackman Capital Partners (Hackman) to purchase 180 public
parking spaces in a proposed parking structure at 8550 Higuera Street/8600
Hayden Place.
BACKGROUND:
The parking supply in the Hayden Tract is deficient and the City Council/Agency
Board has expressed a strong interest in developing needed parking to support the
area and foster growth of businesses. If approved, the proposed purchase will
provide 180 parking spaces to businesses in the Hayden Tract for expansion and/or
intensification purposes, through long-term and monthly city parking leases. The
funds committed must be used for the delivery and use of the public parking spaces.
In the event that Hackman does not deliver the public parking spaces within three
years of the City’s payment then the funds shall be refunded to the City.
City of Culver City, California
Agenda Item Report
Terms of the Purchase and Sale Agreement:
Hackman will construct a 556-space, 5-level parking structure with ancillary retail on
the ground floor (Project). The City will purchase a long-term easement in the
Project for $5 million in order to control and access the 180 spaces. The term of the
easement is equivalent to the longer of 50 years; provided however, the City can use
the easement for so long as developer retains the structure for parking. There is no
provision for buyout of the City parking easement. The price per space is
approximately $27,500 ($5 million total).
The City will:
1. Fund it’s pro rata share of the ongoing maintenance/operation costs, which will
be established by an independent bid approved by both the City and Hackman.
2. Pay its pro rata share of capital costs for any long-term maintenance.
3. Deposit $5 million in a separate interest bearing account for the parking structure
construction. In the event the Project is not built, the funds in the deposit account
will be returned to the City. Any interest accrued will be provided to Hackman in
consideration for costs incurred.
4. Lease the garage spaces at market rate to Hayden Tract property and business
owners on a monthly or long term basis. Long term leases may be entered into
for a maximum term consistent with the easement.
Hayden Tract Parking District:
In order to facilitate use of the 180 spaces by existing and prospective businesses in
the Hayden Tract, staff recommends pursuing creation of a City-initiated parking
district encompassing the Hayden Tract boundaries. The process to establish a
parking district can commence immediately upon execution of the Agreement with
City Council direction.
FISCAL ANALYSIS:
Sufficient former Agency tax exempt bond proceeds exist in the Hayden Tract
Parking Structure project (48894130) to fund the City contribution of $5 million for
the 180 public parking spaces. Maintenance and operational costs for the 180
spaces is estimated at $75,600 annually. Assuming 80% occupancy (144 spaces), if
the City leases the spaces at the current market rate of $125 per space per month,
the total annual revenue is $216,000 calculated as follows: (180 spaces x .80
occupancy = 144 spaces leased monthly x $125 = $18,000 per month x 12 =
$216,000 annually). The estimated total annual maintenance and operation cost is City of Culver City, California
Agenda Item Report
approximately $75,600 ($35/month per space), which will be offset by City leasing
revenues.
Comparing revenue against operational costs, the net annual income from the
spaces would be $140,400 in General Fund revenues ($216,000 - $75,600 =
$140,400). These cost and revenues would reflect the actual bid amounts for
maintenance and operation services.
ATTACHMENTS:
1. Project Area Map;
2. Purchase and Sale Agreement;
3. Public Parking Easement Agreement.
4. Public Notice
MOTION:
That the City Council:
1. Approve a Purchase and Sale Agreement with Hackman Capital Partners for the
purchase of a long-term easement for 180 public parking spaces in a parking
structure to be constructed at 8550 Higuera Street/8600 Hayden Place; and
2. Authorize the City Attorney and City Special Counsel to review/prepare the
necessary documents; and
3. Authorize the City Manager to execute the Purchase and Sale Agreement on
behalf of the City, and to issue interpretations, waive provisions, enter into
amendments on behalf of the City, and to sign all such other documents and
instruments necessary to implement and carry out the agreement on behalf of
the City in such form as is reasonably acceptable to the City Manager; and
4. Authorize the formation of a Parking District in the Hayden Tract by the City.
MEETING DATE: 01.30.12
AGENDA ITEM: (1) Approval of a Purchase and Sale Agreement with
Hackman Capital Partners to Purchase Public Parking
Spaces at 8550 Higuera/8600 Hayden Place; and (2)
Direction to Staff to Commence Formation of a Parking
District in the Hayden Tract.
ATTACHMENTS
Pages
1. Project Area Map 1
2. Purchase and Sale Agreement 2-35
3. Public Parking Easement Agreement 36-55
4. Public Notice 56
WASHINGTON BL
HIGUERA ST
WARNER ST
STELLER DR
HELMS AV
SCHAEFER ST
HAYDEN AV
LANDMARK ST
NATIONAL BL
EASTHAM DR
RODEO RD
HOKE AV
INCE BL
KRUEGER ST
HUBBARD ST
CARSON ST
WILLAT AV
WESLEY ST
LINDBLADE ST
POI NSETTIA CT
LUCERNE AV
FARRAGUT DR
LUCERNE AV
HAYDEN PL
HIGUERA ST
ROBERTSON BL
8660
HAYDEN
PLACE
8550
HIGUERA
STREET
8511
WARNER
STREET
0 500 1,000 1,500 2,000 250
Feet
±
HAYDEN TRACT BOUNDARY
Agreement of Purchase and Sale and Joint Escrow Instructions
Page 1 of 22
AGREEMENT OF PURCHASE AND SALE
AND JOINT ESCROW INSTRUCTIONS
This AGREEMENT OF PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (this “Agreement”) dated this 31st day of January 2012 (the “Effective
Date”), is entered into by and between the CITY OF CULVER CITY, a charter law city, duly
formed, validly existing and in good standing under the laws of the State of California (the
“BUYER” or “CITY”) and HAYDEN HIGUERA PROPERTIES, LLC, Delaware limited
liability company (the “SELLER”). BUYER and SELLER are each a “Party” and are
collectively the “Parties.”
RECITALS
A. The purpose of this Agreement is to effectuate the Redevelopment Plan for the Culver
City Redevelopment Project approved and adopted by the City Council of Culver City on
November 23, 1998 by Ordinance No. 98-105 and amended on January 12, 2004 (the
“Redevelopment Plan”).
B. The intent of the Redevelopment Plan is, in part, to provide for the creation of necessary
public infrastructure and facilities and to perform specific actions necessary to promote the
redevelopment and the economic revitalization of the Project Area, including to provide for
additional public parking within the City of Culver City; and to take all other necessary actions
to implement the Redevelopment Plan and to expend tax increment to accomplish the goals and
objectives of the Redevelopment Plan.
C. Pursuant to Redevelopment Plan objectives, the BUYER desires to acquire an easement
for additional public parking (the “Parking Easement”) on a portion of the land located in
Culver City, California, described in the “Legal Description” attached hereto as Exhibit A and
incorporated herein by this reference, and known as APNs: 4024-005-011 and 4024-005-012
(the “Property”), on which portion the SELLER is developing a parking garage more
particularly described on Exhibit C (the “Future Parking Structure”), attached hereto and
incorporated herein by this reference, with a portion (the “Parking Funds”) of net available tax
increment pursuant to that certain Cooperation Agreement For Payment of Costs Associated with
Certain Redevelopment Agency Funded Projects by and between the Redevelopment Agency of
the City of Culver City and the City dated January 15, 2011, as amended by that certain First
Amendment thereto dated February 22, 2011 (collectively, the “Cooperation Agreement”), a
public record, a copy of which may be obtained in the Office of the City Clerk.
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Agreement of Purchase and Sale and Joint Escrow Instructions
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NOW, THEREFORE, the parties hereto do mutually agree as follows:
1. Recitals. The recitals above are an integral part of this Agreement and set forth
the intentions of the parties and the premises on which the parties have decided to enter into this
Agreement
2. Purchase and Sale. Pursuant to the terms and conditions set forth in this
Agreement, SELLER does hereby agree to sell to BUYER and BUYER does hereby agree to
purchase from SELLER the Parking Easement for the sum of Five Million Dollars ($5,000,000)
(the “Purchase Price”) on the terms and conditions hereinafter set forth. The Purchase Price
represents Twenty-Five Thousand Five Hundred Dollars ($27,500) per parking space, which the
BUYER has determined does not exceed the market value of what it would cost to acquire 180
parking spaces within a parking structure in the vicinity of the Property.
The terms and conditions of this Agreement and the instructions to Lawyers Title
Company, 915 Wilshire Boulevard, Suite 2100, Los Angeles, California 90017, Attention
________________ (“Escrow Holder”) with regard to the escrow (“Escrow”) created pursuant
hereto shall constitute the joint escrow instructions of BUYER and SELLER to Escrow Holder
as well as an agreement between BUYER and SELLER. In the event of a conflict between the
provisions of this Agreement and Escrow Holder’s general escrow instructions, the provisions of
this Agreement shall prevail.
3. Grant of the Parking Easement by Seller. Upon the Close of Escrow (as defined
in Paragraph 5(b) below), SELLER will deliver to BUYER a perpetual and exclusive Parking
Easement on the Property providing for the exclusive use by BUYER and its invitees of 180
parking spaces, which Parking Easement shall substantially in the form attached hereto as
Exhibit B and incorporated herein by this reference (the “Parking Easement Agreement”).
4. Payment of Purchase Price. The Purchase Price for the Parking Easement shall be
payable by BUYER as follows:
a. Escrow of Parking Funds. On or before the Effective Date, BUYER has
deposited or caused to be deposited with Escrow Holder (i) an electronic wire transfer or (ii) a
cashier’s or certified check from the Parking Funds an amount equal to the Purchase Price PLUS
$25,000 (which amount represents 110% of the reasonably estimated BUYER’S share of its
Closing Costs and prorations as provided in Paragraph 10 and 11 below) (collectively, the
“Escrowed Funds”). If interest shall accrue or be payable thereon while in Escrow, such
interest shall be the property of BUYER and shall be promptly be paid to BUYER.
b. Closing Funds. Within five (5) days of written request from Escrow
Holder, and in any event at least one (1) business day prior to the Close of Escrow (as defined in
ATTACHMENT 2
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Agreement of Purchase and Sale and Joint Escrow Instructions
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Paragraph 5(b) below), BUYER shall deposit or cause to be deposited with Escrow Holder, in
cash or by a certified or bank cashier’s check made payable to Escrow Holder or a confirmed
wire transfer of funds any additional funds above the Escrowed Funds (including the Purchase
Price) required in respect of BUYER’S share of its Closing Costs and prorations as provided in
Paragraphs 10 and 11 below. All Escrow, recording and title insurance costs shall be paid by
SELLER and BUYER in accordance with Paragraph 10 below.
c. Special Limited Obligation; No General Fund Liability. The obligation of
the City to pay any costs in connection with this Agreement shall be a special limited obligation
of the City payable exclusively from the aforementioned Parking Funds. Nothing contained
herein shall be construed to create any obligation payable from the City of Culver City’s general
fund.
5. Escrow.
a. Opening of Escrow. For purposes of this Agreement, the Escrow shall be
deemed opened on the date Escrow Holder shall have received an executed original counterpart
of this Agreement from both BUYER and SELLER (“Opening Date”). Escrow Holder shall
notify BUYER and SELLER, in writing, of the Opening Date and the Closing Date, as defined in
paragraph 5(b), below. In addition, BUYER and SELLER agree to execute, deliver, and be
bound by any reasonable or customary supplemental escrow instructions of Escrow Holder, or
other instruments as may reasonably be required by Escrow Holder, in order to consummate the
transaction contemplated by this Agreement. Any such supplemental instructions shall not
conflict with, amend, or supersede any portion of this Agreement. If there is any inconsistency
between such supplemental instructions and this Agreement, then this Agreement shall control.
b. Close of Escrow. The consummation of the purchase transaction
contemplated herein (the “Close of Escrow” or “Closing”) shall occur on or before the
(“Closing Date”) which is no later than one hundred eighty (180) Business Days after the
Effective Date, unless extended pursuant to Paragraph 15 or Paragraph 21(q) or otherwise in
writing by the parties.
6. Conditions of Title. It shall be a condition to the Close of Escrow and a covenant
of SELLER that SELLER shall convey the Parking Easement to BUYER, free and clear of any
and all conditions, restrictions, reservations, liens, encumbrances, assessments, easements, unless
specifically accepted as part of the Parking Easement as agreed to by BUYER, leases (recorded
or unrecorded), deeds of trust and/or mortgages, and any clouds or defects in title which would
prevent the Parking Easement for being used for the purposes described therein, and subject only
to the following approved conditions of title (herein the “Approved Conditions of Title”):
a. Matters affecting the Approved Conditions of Title created by or with the
written consent of BUYER.
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Agreement of Purchase and Sale and Joint Escrow Instructions
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b. Matters affecting the Approved Conditions of Title that are not reasonably
likely to impair the use and enjoyment of the Parking Easement by BUYER.
c. Deeds of trust and/or mortgages, the holders of which have consented to
the grant of the Parking Easement and either subordinated their liens to the Parking Easement or
otherwise delivered commercially reasonable forms of non disturbance agreement.
d. Exceptions which are disclosed by the Preliminary Title Report described
in Paragraph 7(a)(1) hereof and which are approved or deemed approved by BUYER in
accordance with Paragraph 7(a)(2) hereof.
e. SELLER covenants and agrees during the term of this Escrow, SELLER
will not cause or knowingly permit title to the Property to differ from the Approved Condition of
Title described in this Paragraph 6. Any liens, encumbrances, easements, restrictions,
conditions, covenants, rights, rights-of-way, or other matters affecting the Approved Condition
of Title which may appear of record or be revealed after the date of the Preliminary Title Report
described in Paragraph 7(a)(1) below, shall also be subject to BUYER’S approval, other than
matters which (i) are not reasonably likely to impair the use and enjoyment of the Parking
Easement by BUYER, (ii) are removed or insured over prior to Close of Escrow, or (iii) deeds of
trust and/or mortgages, the holders of which, prior to Close of Escrow, consent to the grant of the
Parking Easement and either subordinate their liens to the Parking Easement or otherwise deliver
commercially reasonable forms of non-disturbance agreements. BUYER shall have the right to
disapprove such matters by delivery of written notice to SELLER within five (5) days after the
date BUYER receives knowledge of such matters, and SELLER shall have the right to elect to
cure the same, upon delivery of written notice to BUYER within five (5) days after SELLER’S
receipt of such notification from BUYER.
7. Conditions to Close of Escrow.
a. Conditions to BUYER’S Obligations. The Close of Escrow and
BUYER’S obligation to consummate the transaction contemplated by this Agreement are subject
to the satisfaction of the following conditions for BUYER’S benefit on or prior to the dates
designated below for the satisfaction of such conditions:
(1) Delivery of Due Diligence Materials/Title. Within thirty (30) days
after the Opening Date, SELLER will deliver to BUYER copies of the following items, if and to
the extent such items are in SELLER’S possession: (i) a current preliminary title report for the
Property and the best legible copies available of all documents, whether recorded or unrecorded,
referred to in said preliminary title report (collectively, the “Preliminary Title Report”); (ii) a
copy of the most recent tax bill relating to the Property; (iii) any and all environmental reports
relating to the Property; and (iv) copies of any and all material documents that pertain to the
physical condition of the Property (collectively referred to herein as the “Due Diligence
ATTACHMENT 2
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Agreement of Purchase and Sale and Joint Escrow Instructions
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Materials”). The Due Diligence Materials do not include (a) materials relating solely to the
physical conditions of any improvements on the Property other than improvements if any on the
portions of the Property on which the Future Parking Structure will be located, including
building inspection or other reports relating to the office building thereon, or (b) financial
information. BUYER shall have the right to review, at BUYER’S sole cost and expense, any
environmental reports, soils inspection, conditions of title, zoning, surveys, physical inspections
of the portion of the Property on which the Future Parking Structure is to be located, the Due
Diligence Materials, and all other reports or inspections as BUYER may deem necessary or
appropriate in connection with this Agreement.
(2) Representations, Warranties, and Covenants of SELLER.
SELLER shall have duly performed each and every material agreement to be performed by
SELLER hereunder and SELLER’S representations, warranties, and covenants set forth in
Paragraph 13 shall be true and correct as of the Closing Date in all material respects.
(3) Inspections and Studies. BUYER shall have been given the
opportunity to conduct any and all inspections, investigations, tests and studies (including,
without limitation, investigations with regard to zoning, building codes and other governmental
regulations, architectural inspections, engineering tests, and soils, seismic and geologic reports)
with respect to the portions of the Property on which the Future Parking Structure will be located
(including all structural and mechanical systems and leased areas) as BUYER may elect to make
or obtain. The cost of any such inspections, tests and studies shall be borne by BUYER. During
the term of this Escrow, BUYER, its agents, contractors and subcontractors, upon at least
twenty-four (24) hours’ written notice, shall have the right to enter upon the portions of the
Property on which the Future Parking Structure will be located, at reasonable times during
ordinary business hours, to make any and all inspections and tests as may be necessary or
desirable in BUYER’S sole judgment and discretion. BUYER shall use care and consideration
in connection with any of its inspections. BUYER shall indemnify, defend and hold SELLER
and the Property harmless from any and all claims, liabilities, damages, costs and expenses
(including reasonable attorneys’ fees) arising out of, or resulting from the negligence of
BUYER’S, and/or BUYER’S agents, contractors and/or subcontractors directly resulting from
such entry or activities upon the Property. BUYER shall have no right to terminate this
Agreement as the result of any such inspection or any other matter, including Paragraph 7(a)(1)
above, relating to the physical condition of the Property of the Future Parking Structure
UNLESS such matter is reasonably likely to result in substantial liability exposure to BUYER,
as advised in a written opinion from BUYER’S counsel.
(4) Title Policy. The SELLER shall have caused the Title Company to
have issued, or to be irrevocably committed to issue, a CLTA title insurance policy, insuring
BUYER’S easement interest pursuant to the Parking Easement Agreement, subject only to the
Approved Conditions of Title (the “Title Policy”).
ATTACHMENT 2
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Agreement of Purchase and Sale and Joint Escrow Instructions
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b. Conditions Precedents to SELLER’S Obligation. For the benefit of
SELLER, the Close of Escrow shall be conditioned upon the occurrence and satisfaction of each
of the following conditions (or SELLER’S waiver thereof, it being agreed SELLER may waive
any or all of such conditions):
(1) BUYER’S Obligations. BUYER shall have timely performed all
of the obligations required by the terms of this Agreement to be performed by BUYER.
(2) BUYER’S Representations. All representations and warranties
made by BUYER to SELLER in this Agreement shall be true and correct as of the Close of
Escrow.
8. Deposits by SELLER. At least three (3) business days prior to the Close of
Escrow, SELLER shall deposit or cause to be deposited with Escrow Holder the following
documents and instruments:
a. Public Parking Easement Agreement. The Public Parking Easement
Agreement granting the Parking Easement to BUYER duly executed by SELLER, acknowledged
and in recordable form.
b. Deposit Account Pledge Agreement. The Deposit Account Pledge
Agreement (as defined below) duly executed by SELLER and the Bank (as defined below),
acknowledged and in recordable form. SELLER covenants and agrees that the Escrowed Funds
constituting the Purchase Price received from the Escrow Holder to SELLER shall be deposited
by SELLER into an account (the “Deposit Account”) pursuant to that certain Deposit Account
Pledge Agreement substantially in the form attached hereto as Exhibit D and incorporated herein
by this reference (the “Deposit Account Pledge Agreement”), in accordance with and under the
following terms and conditions:
(1) The Deposit Account shall be an interest bearing account at Wells
Fargo Bank, N.A. or other bank located in Los Angeles County and reasonably approved by the
BUYER. All interest earned on the funds in the Deposit Account will be the property of the
SELLER and may be withdrawn from the Deposit by the SELLER from time to time
(2) Funds held in the Deposit Account (other than interest) shall only
be withdrawn by SELLER upon delivery to the BUYER of the Public Parking Spaces and
Parking Passes as defined in and pursuant to the Public Parking Easement Agreement).
(3) The Deposit Account Pledge Agreement shall provide for a
security interest in the funds held in the Deposit Account in favor of BUYER to secure
SELLER’S obligations under this Agreement.
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Agreement of Purchase and Sale and Joint Escrow Instructions
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(4) The BUYER acknowledges that the SELLER may from time to
time encumber the Property with mortgages, deeds of trust, conveyances, sale/leases-back
transactions, or other forms of conveyance required for financing of the Property for the ownership,
development, construction, use, operation or reconstruction of improvements thereon, including the
Future Parking Structure. Any such “mortgage” and “deed of trust” as used herein includes all other
modes of financing Mortgage, deed of trust, or other instrument is referred to herein as a “Lender
Security Instrument”. The holder of any Security Instrument shall in no way be obligated by the
provisions of this Agreement to construct or complete the Future Parking Garage. Each such holder
shall (insofar as the rights of the BUYER are concerned) have the right at its option to cure or
remedy or commence to cure or remedy any SELLER default consistent with the terms and
conditions of this Agreement and/or the Public Parking Easement. Any such holder will have the
right to take a security interest in the Deposit Account provided it is expressly subordinated to the
security interest created by, and all of the BUYER’s rights under, the Deposit Account Pledge
Agreement. The BUYER and the SELLER shall cooperate to include in this Agreement by
suitable amendment, or in a separate agreement, from time to time any provisions which may
reasonably be requested by any proposed lender/holder of any Security Instrument for the
purpose of implementing reasonable and customary “lender protection” provisions similar to
those contained in ground leases and other agreements where the interests of one party can be
encumbered by Security Instruments and allowing such holder of any Security Instrument
reasonable means to protect or preserve such holder’s lien and security interest in this
Agreement, the Public Parking Easement Agreement or the Deposit Account on the occurrence
of any default under the terms of this Agreement, the Public Parking Easement Agreement or the
Deposit Account. The BUYER and the SELLER shall execute and deliver (and acknowledge, if
applicable, for recording purposes) any such amendment or agreement and any reasonable
subordination and non-disturbance agreement requested by any holder of any Security
Instrument; provided, however, that any such amendment and/or subordination and non-
disturbance agreement shall not in any material respect adversely affect any rights of the
BUYER under this Agreement, Public Parking Easement Agreement or the Deposit Account,
create personal liability on the part of the BUYER, or otherwise subject the BUYER or the
BUYER’s interest under the Public Parking Easement to liability whatsoever for such loan.
9. Deposits by BUYER. At least three (3) business days prior to the Close of
Escrow, BUYER shall deposit or cause to be deposited with Escrow Holder the following
documents and instruments:
a. Public Parking Easement Agreement. The Public Parking Easement
Agreement granting the Parking Easement to BUYER duly executed by BUYER, acknowledged
and in recordable form.
b. Deposit Account Pledge Agreement. The Deposit Account Pledge
Agreement duly executed by BUYER.
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c. Funds. All funds required under this Agreement from BUYER, including
the Escrowed Funds.
10. Costs and Expenses. The cost and expense of the Title Policy attributable to
ALTA coverage, plus the cost attributable to any endorsement insuring BUYER’S title against
any mechanics’ liens as of the Closing Date, shall be paid by BUYER. BUYER shall pay any
Escrow fees. BUYER shall pay all documentary transfer taxes, if any, payable in connection
with the recordation of the Public Parking Easement Agreement. The amount of consideration
for the grant of Parking Easement shall not be posted on the Parking Easement Agreement, but
shall be supplied by separate affidavit. BUYER shall pay the Escrow Holder’s customary
charges to BUYER and SELLER for document drafting, recording, and miscellaneous charges.
Each party shall be responsible for their respective legal fees and costs in connection with this
transaction.
11. Prorations. Escrow Holder shall prorate all rents, real estate taxes, bonds or
assessments (general and special) as of 12:01 a.m. on the date of the Close of Escrow.
a. All operating expenses of the Future Parking Structure including, without
limitation, utility charges, maintenance charges, management fees, and other costs and expenses
shall be prorated between BUYER and SELLER as of 12:01 a.m. on the date of Close of Escrow,
such that SELLER will pay for all such expenses for the period prior to the Closing Date, and
BUYER shall pay its proportional share for all such expenses on and following the Closing Date.
As used in this Paragraph 11(a), BUYER’S proportional share means the percentage derived by
dividing 180 by the total number of parking spaces in the Future Parking Structure. For each
item of expense, such prorations shall relate only to the billing period in which Closing Date
occurs; thereafter BUYER’S sole responsibility with respect to such expenses will be pursuant to
the Parking Easement Agreement. By way of example of the foregoing, if the Closing Date
occurs on the 15
th
of the calendar month, and the then current bill for electricity service to the
Future Parking Structure covers that entire calendar month, then such bill will be prorated in
accordance with the foregoing, and BUYER’S share of all subsequent electricity charges will be
governed solely by the Parking Easement Agreement.
b. At least three (3) business days prior to the Closing Date, SELLER shall
provide to BUYER a schedule of all prorations accompanied by the latest available billings for
any operating expenses, if applicable. BUYER and SELLER shall agree upon such prorations
and notify Escrow Holder on or before two (2) business days prior to the Closing Date.
c. SELLER shall pay all bills incurred with respect to the Property prior to
the Close of Escrow; provided, however, with respect to bills not received by SELLER before
the Close of Escrow, SELLER shall pay the portion of such bills attributable to the period prior
to the Close of Escrow within ten (10) days after SELLER’S receipt of same. Said covenant of
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SELLER shall survive the Close of Escrow. BUYER shall pay all bills incurred with respect to
the Property following the Close of Escrow.
d. In the event that there are any unknown amounts to be prorated as of the
Close of Escrow, then SELLER and BUYER will prorate the same promptly after the Close of
Escrow and outside the escrow.
e. Notwithstanding anything to the contrary in this Paragraph 11, SELLER
shall continue to be responsible for payment of all taxes, penalties and costs on the Property
during the term of the Parking Easement Agreement, other than any amounts attributable to
BUYER’S possessory interest in the Future Parking Structure pursuant to the Parking Easement
Agreement.
12. Disbursements and Other Actions by Escrow Holder. Upon the Close of Escrow,
the Escrow Holder shall promptly undertake all of the following in the manner indicated:
a. Prorations. Prorate all matters referenced herein, based upon the
statement delivered into Escrow signed by the parties.
b. Recording. Cause the Parking Easement Agreement and any other
documents which the parties hereto may mutually direct, to be recorded in the Official Records
of Los Angeles County, California (“Official Records”), in the order set forth in this
subparagraph. Escrow Holder is instructed not to affix the amount of documentary transfer tax,
if any, on the face of the Parking Easement Agreement, if any, but to supply same by separate
affidavit. The UCC Financing Statement shall be recorded in the Official Records and filed with
the Office of the Secretary of State of California.
c. Funds. Immediately disburse from the Escrowed Funds and other funds
deposited by BUYER with Escrow Holder toward payment of all items chargeable to the account
of BUYER, less the Purchase Price which shall be disbursed to SELLER to be deposited into
SELLER’S Deposit Account, pursuant thereto in payment of such costs, and disburse the balance
of such funds to BUYER.
d. Documents to BUYER. Deliver conformed copies of the Parking
Easement Agreement, UCC Financing Statement and Deposit Account Pledge Agreement to
BUYER and SELLER, and, when issued, the Title Policy to BUYER.
13. SELLER’S Representations and Warranties. In consideration of BUYER
entering into this Agreement, and as an inducement to BUYER to purchase the Parking
Easement, SELLER makes the following representations and warranties, each of which is
material and is being relied upon by BUYER (and the continued truth and accuracy of which
shall constitute a condition precedent to BUYER’S obligations hereunder):
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a. Validly Existing. SELLER is a Delaware limited liability company, duly
formed, and validly existing under the laws of the State of its formation and in good standing
under the laws of the State of California.
b. Authorization. This Agreement has been duly and validly authorized,
executed and delivered by SELLER, and no other action is requisite to the execution and
delivery of this Agreement by SELLER.
c. Threatened Actions. There are no actions, suits or proceedings pending
against, or, to SELLER’S actual knowledge, threatened or affecting the Property in law or
equity.
d. Third Party Consents. No consents or waivers of, or by, any third party
are necessary to permit the consummation by SELLER of the transactions contemplated pursuant
to this Agreement, including the recordation of the Parking Easement Agreement, other than (i)
consents, subordinations and/or non-disturbance agreements from current and future holders of
deeds of trust or mortgages on the Property, and (ii) demolition, grading, building and similar
permits from the City, acting in its governmental capacity.
e. No Violation of Law. To SELLER’S actual knowledge, there is no
violation of law or governmental regulation by SELLER with respect to the Property.
f. Condemnation. There are no pending, or, to SELLER’S actual
knowledge, threatened proceedings in eminent domain or otherwise, which would affect the
Property or any portion thereof.
g. Compliance with Law. To SELLER’S actual knowledge, all laws,
ordinances, rules, and requirements and regulations of every governmental authority, body, or
subdivision thereof bearing on the Property have been complied with by SELLER.
h. Agreements. SELLER is not a party to any agreement (whether oral or
written) affecting or relating to the right of any party with respect to the possession of the
Property, or any portion thereof, which are obligations which will affect the Property or any
portion thereof subsequent to the recordation of the Parking Easement Agreement, except as may
be reflected in the Approved Condition of Title, including deeds of trust or mortgages on the
Property.
i. Documents. To SELLER’S actual knowledge, all Due Diligence
Materials delivered to BUYER pursuant to Paragraph 7(a)(2) of this Agreement are true and
complete copies of originals.
j. Occupancy Agreements. There are no leases, subleases, occupancies or
tenancies in effect pertaining to the portion of the Property on which the Future Parking
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Structure will be constructed, and SELLER has no knowledge of any oral agreements with
anyone, including tenants, with respect to the occupancy of such portion of the Property.
k. Hazardous Materials. As of the date of its execution of this Agreement,
SELLER has no actual knowledge of any use or condition of the Property by SELLER or by any
predecessor in interest of SELLER which would have caused Hazardous Materials to exist in,
on, under or about the Property. SELLER agrees to and shall defend, indemnify and hold
harmless BUYER, and its council members, officers, agents and employees (the “Indemnified
Parties”) from and against all claims, liability, loss, damage, costs or expenses (including
reasonable attorneys’ fees and court costs) incurred by the Indemnified Parties, arising from or
as a result of any Hazardous Materials which may be found on the Property, at any time, which
(a) were caused to exist in, on, under or about the Property by SELLER, and (b) existed on the
Property prior to the Closing Date. For purposes of this Agreement, the term “Hazardous
Materials” means any substance, material or waste which is regulated as
hazardous/contaminating or potentially hazardous/contaminating by the United States
government, the State of California, or any local or other governmental authority, including,
without limitation, any material, substance or waste which is (i) defined as a “hazardous waste,”
“acutely hazardous waste,” “restricted hazardous waste,” or “extremely hazardous waste” under
Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health
and Safety Code; (ii) defined as a “hazardous substance” under Section 25316 of the California
Health and Safety Code; (iii) defined as a “hazardous material,” “hazardous substance,” or
“hazardous waste” under Section 25501 of the California Health and Safety Code; (iv) defined as
a “hazardous substance” under Section 25281 of the California Health and Safety Code; (v)
petroleum; (vi) asbestos; (vii) lead; (viii) a polychlorinated biphenyl; (ix) listed under Article 9
or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the
California Code of Regulations, Chapter 20; (x) designated as a “hazardous substance” pursuant
to Section 311 of the Clean Water Act (33 U.S.C. Section 1317); (xi) defined as a “hazardous
waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act (42 U.S.C.
Section 6903); (xii) defined as a “hazardous substance” pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section
9601); (xiii) any other substance, whether in the form of a solid, liquid, gas or any other form
whatsoever, with respect to which any governmental regulations or requirements provide for
special handling in its use, transportation, generation, collection, storage, treatment or disposal;
(xiv) any substance, product, waste, or other material of any nature whatsoever which may give
rise to liability under any of the above statutes or under any statutory or common law theory
based on negligence, trespass, intentional tort, nuisance or strict liability or under any reported
decisions of a state or federal court; (xv) petroleum or crude oil other than petroleum and
petroleum products which are contained within regularly operated motor vehicles; and (xvi)
asbestos.
l. Due Diligence Materials. To SELLER’S actual knowledge, there are no
other reports relating to the physical condition of the portion of the Property on which the Future
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Parking Structure will be located that are in existence, which are not in SELLER’S possession
but that SELLER has the legal right to obtain.
m. Local, State, and Federal Laws. SELLER hereby expressly acknowledges
and agrees that BUYER has never previously affirmatively represented to the SELLER or its
contractor(s), in writing or otherwise, that the Future Parking Structure is not a “public work,” as
defined in Section 1720 of the Labor Code. SELLER hereby agrees that SELLER shall have the
obligation to provide any and all disclosures or identifications required by Labor Code Section
1781, as the same may be enacted, adopted or amended from time to time, or any other similar
law. SELLER shall indemnify, protect, defend and hold harmless BUYER, and its council
members, officers, employees, contractors and agents, with counsel reasonably acceptable to
City and Agency, from and against any and all loss, liability, damage, claim, cost, expense,
and/or “increased costs” (including 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 SELLER of any applicable local, state and/or federal law,
including, without limitation, any applicable federal and/or state labor laws (including, without
limitation, the requirement to pay state prevailing wages); (2) the implementation of Section
1781 of the Labor Code, as the same may be enacted, adopted or amended from time to time, or
any other similar law; and/or (3) failure by SELLER to provide any required disclosure or
identification as required by Labor Code Section 1781, as the same may be enacted, adopted or
amended from time to time, or any other similar law. It is agreed by the parties that, in
connection with the development and operation of any improvements on the Property, including
any and all public works (as defined by applicable law), SELLER shall bear all risks of payment
or non-payment of state prevailing wages and/or Labor Code Section 1781, as the same may be
enacted, adopted or amended from time to time, and/or any other similar law. “Increased costs”
as used in this Paragraph 13(m) 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. The foregoing
indemnity shall survive termination of this Agreement and shall continue after the Close of
Escrow.
SELLER’S representations and warranties made in this Paragraph 13 shall be continuing
and shall be true and correct as of the Close of Escrow with the same force and effect as if
remade by SELLER in a separate certificate at that time. The truth and accuracy of SELLER’S
representations and warranties made herein shall survive the Close of Escrow for a period of one
year (the “Survival Period”).
14. BUYER’S Representations and Warranties. In consideration of SELLER
entering into this Agreement, and as an inducement to SELLER to sell the Property to BUYER,
BUYER makes the following representations and warranties, each of which is material and is
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being relied upon by SELLER (the continued truth and accuracy of which shall constitute a
condition precedent to SELLER’S obligations hereunder):
a. BUYER is a charter law city, duly formed, validly existing and in good
standing under the laws of the State of California.
b. BUYER has the full right, power and authority to enter into this
Agreement and the instruments referenced herein; and to consummate the transactions
contemplated hereby.
c. The persons executing this Agreement, the instruments referenced herein,
and any other documents executed and delivered on behalf of BUYER have the full right, power
and authority to do so and have been duly authorized to do so by BUYER, and no other persons
are required to execute this Agreement on behalf of BUYER.
d. The City Manager, upon the execution and delivery of this Agreement by
BUYER has the full, right, power and authority to accept the Parking Easement Agreement on
behalf of BUYER.
e. This Agreement and all documents executed by BUYER under this
Agreement which are to be delivered to SELLER are, and at the time of Close of Escrow will be,
duly authorized, executed, and delivered by BUYER, are, and at the Close of Escrow will be
legal, valid, and binding obligations of BUYER, and do not, and at the Close of Escrow will not
violate any provisions of any agreement or judicial order to which BUYER is a party or to which
it is subject.
The representations and warranties of BUYER set forth in this Paragraph 14 shall be true
on and as of the Close of Escrow as if those representations and warranties were made on and as
of such time and shall survive the Close of Escrow for the Survival Period.
15. Condemnation Prior to Closing. Subject to Paragraph 21, in the event that prior
to the Closing, all or any material portion of the portion of the Property on which the Future
Parking Structure will be constructed is subject to a taking or a threatened taking by a public
authority, BUYER shall have the right, but not the obligation, exercisable by giving notice to
SELLER within fifteen (15) days after receiving written notice of such taking, either (i) to
terminate this Agreement, in which case neither party shall have any further rights or obligations
hereunder except that (a) all funds and documents deposited into Escrow shall be returned to the
party depositing the same, and (b) BUYER and SELLER each shall be responsible for one-half
of any title or escrow cancellation fee, and (c) either (i) this Agreement will terminate except for
provisions hereof which expressly survive termination, or (ii) provided that the Future Parking
Structure of sufficient size can be built on the remaining portion of the Property following such
taking, to accept the Parking Easement for a reduced number of spaces equal to 30% of the total
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spaces in such reduced Future Parking Structure, but in no event less than 100 total spaces but
otherwise in the condition required herein, and to proceed with the Closing, except that the
Purchase Price will be correspondingly reduced (i.e., reduced to an amount equal to $27,500
times the actual number of Public Parking Spaces to be delivered), and BUYER shall not be
entitled to receive any of SELLER’S rights to any condemnation award payable by reason of
such taking.
16. Notices. Formal notices, demands and communications between BUYER and
SELLER shall be deemed sufficiently given if dispatched by first class mail, registered or
certified mail, postage prepaid, return receipt requested, or by electronic facsimile transmission
followed by delivery of a “hard” copy, or by personal delivery (including by means of
professional messenger service, courier service such as United Parcel Service or Federal
Express, or by U.S. Postal Service), to the addresses of the BUYER and SELLER as set forth
below. Such written notices, demands and communications may be sent in the same manner to
such other addresses as either party may from time to time designate by mail. Any notice that is
transmitted by electronic facsimile transmission (delivered during normal business hours)
followed by delivery of a “hard” copy, shall be deemed delivered upon its transmission; any
notice that is personally delivered (including by means of professional messenger service,
courier service such as United Parcel Service or Federal Express, or by U.S. Postal Service),
shall be deemed received on the documented date of receipt; and any notice that is sent by
registered or certified mail, postage prepaid, return receipt required shall be deemed received on
the date of receipt thereof.
To BUYER: City of Culver City
Attn: City Manager
9770 Culver City Boulevard
Culver City, California 90232-0507
Facsimile: (310) 253-5779
To SELLER: Hayden Higuera Properties, LLC
Hackman Capital Partners, LLC
1111 Santa Monica Boulevard, Suite 750
Los Angeles, CA 90025
Attention: Beth Berke, Chief Operating Officer
Email: bberke@hackmancapital.com
With a copy to: Sheppard Mullin Richter & Hampton LLP
333 South Hope Street, 43
rd
Floor
Los Angeles, CA 90071
Attention: Michael J. Kiely
Email: mkiely@sheppardmullin.com
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Notice of change of address shall be given by written notice in the manner detailed in this
paragraph. Rejection or other refusal to accept, or the inability to deliver because of changed
address of which no notice was given, shall be deemed to constitute receipt of the notice,
demand, request, or communication sent.
17. Legal Fees. Each party shall be responsible for their respective legal fees and
costs in connection with any action or suit against the other party hereunder arising out of this
Agreement. The foregoing is not intended to limit BUYER’S right to collect legal fees incurred
by BUYER in connection with the defense of third party claims for which SELLER has
indemnified BUYER pursuant to this Agreement.
18. Assignment. BUYER shall not be entitled to assign this Agreement without the
prior written consent of SELLER, which consent shall not be unreasonably withheld.
19. Legal and Equitable Enforcement of this Agreement.
a. Default by SELLER. Subject to Paragraph 22(q), in the event the Close of
Escrow and the acquisition of the Parking Easement by BUYER does not occur by reason of any
default by SELLER, which default continues for a period of at least thirty (30) days following
SELLER’S receipt of written notice from BUYER, or, if such default cannot reasonably be cured
within thirty (30) days, such longer period, not to exceed 180 days provided that SELLER
proceeds to cure within such thirty (30) day period and thereafter diligently prosecutes such cure
to completion, then BUYER shall be entitled as its sole remedy the return of the Escrowed Funds
and all of its out-of-pocket expenses incurred in connection with the transaction, up to a cap of
$100,000. BUYER hereby waives any right to pursue the specific performance of this
Agreement.
b. Default by BUYER. Subject to Paragraph 22(q), in the event the Close of
Escrow and the acquisition of the Parking Easement by BUYER does not occur by reason of any
default by BUYER, which default continues for a period of at least five (5) days following
BUYER’S receipt of written notice from SELLER, then SELLER shall be entitled to the retain
the Purchase Deposit, recovery of all of its out-of-pocket expenses incurred in connection with
the transaction, and shall have the right to pursue any other remedy available to it at law or in
equity, including the specific performance of this Agreement.
c. Survival. This Paragraph 19 will survive termination of this Agreement.
20. Seller Relocation Obligations. SELLER shall comply with the requirements of all
applicable relocation laws, including, but not limited to, the Uniform Relocation Act and the
California Relocation Assistance Act, and shall comply with related notice requirements and
shall provide the BUYER with true and correct copies of such notices. SELLER shall also retain
all required records and the originals and/or copies of notices in its files as mandated by
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applicable law. The costs, if any, of complying with all applicable relocation requirements
pursuant to this Agreement shall be the responsibility of the SELLER.
21. Post Closing Termination of the Parking Easement Agreement.
a. Termination by SELLER. At any time prior to the Commencement Date
(as defined in the Public Parking Easement Agreement), SELLER shall have the right to
terminate the Public Parking Easement Agreement, by providing written notice to BUYER.
Upon such termination, SELLER shall pay to BUYER an amount (the “Termination Payment”)
equal to $5,000,000. Such payment will be made to BUYER concurrently with the delivery by
BUYER to SELLER of the Quitclaim (as defined in Paragraph 21(c) below.
b. Termination by BUYER. Subject to Paragraph 22(q), if the
Commencement Date (as defined in the Public Parking Easement Agreement) has not occurred
by June 30, 2014, then BUYER shall have the right to terminate this Agreement upon written
notice to SELLER. Upon such termination, SELLER shall pay to BUYER the Termination
Payment. Such payment will be made to BUYER concurrently with the delivery by BUYER to
SELLER of the Quitclaim.
c. Quitclaim. If either party exercises its right to terminate this Agreement
in accordance with this Paragraph 21, concurrently with such payment as set forth hereinabove,
BUYER shall execute and deliver to SELLER all documents reasonably required by SELLER,
including, without limitation, a quitclaim deed (the “Quitclaim”) terminating and releasing
BUYER’s interest in the Public Parking Easement Agreement and the Public Parking Easement
therein.
22. Miscellaneous.
a. Survival of Covenants. The covenants, representations and warranties of
both BUYER and SELLER set forth in this Agreement shall survive the recordation of the Public
Parking Easement Agreement and the Close of Escrow for the Survival Period.
b. Required Actions of BUYER and SELLER. BUYER and SELLER agree
to execute such instruments and documents and to diligently undertake such actions as may be
reasonably required in order to consummate the purchase and sale herein contemplated, and shall
use their commercially reasonable efforts to accomplish the Close of Escrow in accordance with
the provisions hereof.
c. Time of Essence. Time is of the essence of each and every term, condition,
obligation, and provision hereof.
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d. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument. The
signature page of this Agreement may be detached from and added to any counterpart of this
Agreement identical in form.
e. Captions. Any captions to, or headings of, the paragraphs or
subparagraphs of this Agreement are solely for the convenience of the parties hereto, are not a
part of this Agreement, and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof.
f. Broker. BUYER and SELLER each represent and warrant to the other
party that neither has dealt with or engaged a broker in connection with this transaction, and
agrees to indemnify and save harmless the other party from and against all claims, costs,
liabilities and expense (including court costs and reasonable attorneys’ fees) incurred by the
other party as a result of a breach of this representation.
g. No Obligations to Third Parties. Except as otherwise expressly provided
herein, the execution and delivery of this Agreement shall not be deemed to confer any rights
upon, nor obligate any of the parties hereto, to any person or entity other than the parties hereto.
h. Exhibits and Schedules. The Exhibits and Schedules attached hereto are
hereby incorporated herein by this reference.
i. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
j. Fees and Other Expenses. Except as otherwise provided herein, each of
the parties shall pay its own fees and expenses in connection with this Agreement.
k. Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties hereto.
l. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day Escrow opens), and including
the last day, unless the last day is a holiday or Saturday or Sunday, in which case the time shall
be extended to the next business day. As used herein, the term “Business Day” means any day
which is not a Saturday, Sunday, a legal holiday in the State of California, or a day on which
national banks are closed.
m. Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against any
party by reason of the authorship of this Agreement or any other rule of construction which
might otherwise apply.
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n. Conflicts of Interest. No member, official or employee of the BUYER or
the SELLER shall have any personal interest, direct or indirect, in this Agreement nor shall any
such member, official or employee participate in any decision relating to this Agreement which
affects his personal interests or the interests of any corporation, partnership or association in
which he is, directly or indirectly, interested.
o. Gender and Number. As used in this Agreement, masculine, feminine or
neuter gender and the singular or plural number shall each be deemed to include the others
wherever and whenever the context so dictates.
p. Severability. If any provision of this Agreement shall be adjudged invalid,
illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall not be affected thereby, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provisions had not been contained herein, and the remainder of
this Agreement shall be valid and enforceable to the fullest extent permitted by law.
q. Permitted Delay, Extension of Times of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not be
deemed to be in default where delays or default are due to war, insurrection, strikes, walkouts,
riots, floods, drought, earthquakes, fires, blizzards, unusually heavy rainfall, casualties, acts of
God, acts of terrorism, governmental restrictions imposed or mandated by other governmental
entities, enactment of conflicting state of federal laws or regulations, new or supplementary
environmental regulation, litigation, or similar bases for excused performance (“Permitted
Delay”). If written notice of such delay is given to BUYER within thirty (30) days of the
commencement of such delay, an extension of time for such cause shall be granted in writing for
the period of the Permitted Delay, or longer as may be mutually agreed upon.
23. Indemnification of Escrow Holder.
a. If this Agreement or any matter relating hereto shall become the subject of
any litigation or controversy, BUYER and SELLER agree, jointly and severally, to hold Escrow
Holder free and harmless from any loss or expense, including attorney’s fees, that may be
suffered by it by reason thereof except for losses or expenses as may arise from Escrow Holder’s
negligent or willful misconduct. If conflicting demands are made or notices served upon Escrow
Holder with respect to this Agreement, the parties expressly agree that Escrow Holder shall be
entitled to file a suit in interpleader and obtain an order from the court requiring the parties to
interplead and litigate their several claims and rights among themselves. Upon the filing of the
action in interpleader, Escrow Holder shall be fully released and discharged from any obligations
imposed upon it by this Agreement, and
b. Escrow Holder shall not be liable for the sufficiency or correctness as to
form, manner, execution, or validity of any instrument deposited with it, nor as to the identity,
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authority or rights of any person executing such instrument, nor for failure of BUYER or
SELLER to comply with any of the provisions of any agreement, contract or other instrument
filed with Escrow Holder, or referred to herein. Escrow Holder’s duties hereunder shall be
limited to the safekeeping of all monies, instruments, or other documents received by it as
Escrow Holder, and for their disposition in accordance with the terms of this Agreement.
24. Entire Agreement, Waivers and Amendments.
a. This Agreement shall be executed in four (4) duplicate originals each of
which is deemed to be an original. This Agreement and its attached Exhibits shall constitute the
entire understanding and agreement of the parties.
b. This Agreement integrates all of the terms and conditions mentioned
herein or incidental hereto, and supersedes all negotiations or previous agreements between the
parties with respect to all (or any part of or any interest in) the Property. This Agreement and all
documents incorporated herein contain the entire understanding among the parties hereto relating
to the transactions contemplated herein and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written.
c. All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the BUYER and the SELLER, and all amendments
hereto must be in writing and signed by the appropriate authorities of the parties to be bound
thereby. This Agreement and any provisions hereof may be amended by mutual written
agreement by the BUYER’S City Manager or designee, subject to review and approval by the
SELLER, as needed to comply with applicable law and internal policies and procedures. The
waiver by BUYER or SELLER of any term, covenant, or condition herein contained shall not be
a waiver of such term, covenant, or condition on any subsequent breach.
25. Further Actions. The BUYER’S City Manager or designee and the SELLER are
hereby authorized and directed to take such other and further actions, and sign such other and
further agreements and documents on behalf of the BUYER and the SELLER, respectively, as
may be necessary or proper to effect the terms of this Agreement.
[Signatures being on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
“BUYER”
CITY OF CULVER CITY
By:
JOHN NACHBAR, City Manager
APPROVED AS TO CONTENT:
By: ____________________________
SOL BLUMENFELD, Community Development Director
APPROVED AS TO FORM:
By:
CAROL SCHWAB, City Attorney
APPROVED AS TO FORM:
By:
THEODORE M. BALLMER, Special Counsel
[Signatures continue on following page.]
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“SELLER”
HAYDEN HIGUERA PROPERTIES, LLC,
Delaware limited liability company
By:
Name:
Its:
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Culver City, County of Los Angeles, State of California, described
as follows:
Parcel 1:
Lot 4 of Tract No. 32560, in the City of Culver City, County of Los Angeles, State of California, as per
map recorded in Book 865, Page(s) 11 to 14 inclusive of Maps, in the Office of the County Recorder of
said County.
Except an undivided one-fourth of all mining and mineral rights or substances whether solid or liquid, in
or under said land, as reserved by RKO Teleradio Pictures, Inc., in deed recorded January 30, 1958, as
Instrument No. 1381, in Book 56452, Page 110, Official Records.
The right to use or occupy the surface and subsurface area of said land to a depth of 500 feet was
relinquished to the record owner of said land, by a deed recorded March 4, 1959, in Book D-387,
Page 496, Official Records.
Assessor's Parcel Number: 4204-005-011
Parcel 2:
Lot 5 of Tract No. 32560, in the City of Culver City County of Los Angeles, State of California, as shown
on the map filed June 29, 1976, in Book 865, Page(s) 11 through 14 inclusive of Maps, in the Office of
the County Recorder of said County.
Excepting therefrom an undivided one-fourth of all mining and mineral rights or substances whether solid
or liquid, in or under said land, as reserved by RKO Teleradio Pictures, Inc., in deed recorded January 30,
1958, as Instrument No. 1381, in Book 56452, Page 110, Official Records.
The right to use or occupy the surface and subsurface area of said land to a depth of 500 feet was
relinquished to the record owner of said land, by a deed recorded March 4, 1959, as Instrument No. 3921,
in Book D-387, Page 496, Official Records.
Assessor's Parcel Number: 4204-005-012
Parcel 3:
Non-exclusive easements for (a) pedestrian and vehicular ingress and egress, (b) installation, maintenance
and operation of public utilities services, and (c) construction, maintenance, and repair of private
driveways, curbs, gutters, parking lighting and landscaped areas, as set forth in that certain Declaration of
Protective Covenants, Conditions and Restrictions and Grant of Easement, made November 12, 1976, and
recorded on November 26, 1976, as Instrument Number 2360 in the Official Records of Los Angeles
County, California.
ATTACHMENT 2
23
EXHIBIT B
FORM OF PUBLIC PARKING EASEMENT AGREEMENT
[Behind this page.]
ATTACHMENT 2
24
EXHIBIT C
DESCRIPTION OF FUTURE PARKING GARAGE
Parking Structure – between 545 and 565 spaces, on 5 levels (one at grade and 4 above grade),
generally in the location depicted on the Site Plan attached hereto, to be constructed in
accordance with plans and specifications approved by the City of Culver City Department of
Building and Safety. The Parking Structure will include a gated access system, ramps, bollards
and/or wheel stops, revenue collection machinery, way finding signage, advertising signage,
elevators (to the extent required by applicable law), staircases, light fixtures, emergency access,
emergency equipment, utility equipment and fixtures, landscaping, management and
maintenance office/closets, trash receptacle closet and other improvements reasonably and
customarily included in similarly situated, comparably sized parking structures in Culver City,
some of which features are depicted on the Preliminary Schematics drawings attached hereto as
Schedule 1 and incorporated herein by this reference. The architectural design will be
representative of the innovative and progressive aesthetic prevalent amongst the remodeled
industrial buildings in the Hayden Tract, incorporating urban graphics, low water consumption
landscape elements and high efficiency lighting.
ATTACHMENT 2
25
SCHEDULE 1 TO EXHIBIT C
PRELIMINARY SCHEMATIC DRAWINGS
[Behind this page.]
ATTACHMENT 2
26
EXHIBIT D
FORM OF DEPOSIT ACCOUNT PLEDGE AGREEMENT
[Behind this page.]
ATTACHMENT 2
27
Deposit Account Control Agreement 1
DEPOSIT ACCOUNT CONTROL AGREEMENT
This DEPOSIT ACCOUNT CONTROL AGREEMENT (this “Agreement”), dated as
of _______________________, 2012, is made by and among HAYDEN HIGUERA
PROPERTIES, LLC, Delaware limited liability company (the “Debtor”), WELLS FARGO
BANK, N.A., a national banking association (the “Bank”) and CITY OF CULVER CITY, a
charter law city, duly formed, validly existing and in good standing under the laws of the State of
California (the “Secured Party” or “City”). The date of this Agreement as set forth above is for
reference purposes only, and this Agreement will not be effective and binding until the Closing
Date (as defined in the Purchase Agreement [as defined below]).
RECITALS:
A. Pursuant to that certain Agreement Of Purchase And Sale And Joint Escrow
Instructions dated as of the 31st day of January 2012 (the “Purchase Agreement”) between the
City and the Debtor, City has acquired from Debtor the Public Parking Easement within a
parking structure (the “Parking Structure”) to be developed and constructed on land located at
8555 Higuera Avenue, Culver City, California, and also known as APNs: 4024-005-011 and
4024-005-012 (the “Property”).
B. Pursuant to the Purchase Agreement, and as a condition the Closing thereunder,
Debtor is required to deposit certain funds received in respect of the Purchase Price, in the
amount of $5,000,000, into Debtor’s “Deposit Account” (as defined in Section 1 below), grant
to Secured Party a security interest therein, and enter into this Agreement.
C. The term “Beneficiary Parties” as used herein shall mean Secured Party and its
successors and assigns. Capitalized terms that are used but not defined in this Agreement shall
have the meanings set forth in the Purchase Agreement.
NOW THEREFORE, in consideration for Closing under the Purchase Agreement, and in
order to induce Secured Party to do so, Debtor agrees for the benefit of Secured Party as follows:
Section 1. Establishment of Account. The Bank hereby confirms and agrees that:
(a) The Bank has established Account Number _______________ titled
“HAYDEN HIGUERA PROPERTIES, LLC – Purchase Price Account” (such
account and any successor account, the “Deposit Account”), and the Bank shall not
change the name or account number of the Deposit Account without the prior written
consent of the Secured Party;
(b) The Deposit Account shall be subject to (i) the Bank’s commercial deposit
account agreement as amended from time to time, and (ii) the Bank’s rules and
regulations that relate to the Deposit Account ((i) and (ii) collectively, the “Other
Agreements”), provided that, in the event that any of the terms and provisions of the
ATTACHMENT 2
28
Deposit Account Control Agreement 2
Other Agreements conflict with or are inconsistent with any of the terms and provisions
of this Agreement, the terms and conditions of this Agreement shall control;
(c) The Bank is a “Bank” (as that term is defined in Section 9-102(8) of the
Uniform Commercial Code (“UCC”) as adopted in California) and is acting in such
capacity with respect to the Deposit Account;
(d) The Bank acknowledges that the Secured Party has a security interest in
the Deposit Account and all funds and instruments deposited therein from time to time
and the Bank is maintaining the Deposit Account subject to such security interest; and
(e) The Deposit Account shall not constitute nor contain “Investment
property,” as such term is defined in Section 9-102(49) of the UCC.
Section 2. Delivery of Deposit Deposits; Use of Funds. On the Closing Date, Debtor
shall cause to be deposited into the Deposit Account from the Escrow under the Purchase
Agreement the amount of $5,000,000 (“Deposit”), which amount represents the Purchase Price
less the Purchase Deposit under the Purchase Agreement. Funds in the Deposit Account shall be
disbursed by Bank only (i) for distribution of interest earned on such Deposit Account to Debtor,
provided that the total balance in the account shall in no event be less than the initial amount
deposited, and (ii) as otherwise instructed by Secured Party.
Section 3. No Withdrawals by Debtor. Debtor shall not withdraw and shall have no
right to demand the release or disbursement of funds held in the Deposit Account other than in
accordance with the terms of Section 2 above. Debtor hereby waives any claims that it may have
against Bank or Secured Party with respect to any disbursement, release or application of the
funds held in the Deposit Account, except to the extent of Bank’s gross negligence or willful
misconduct in connection with any disbursement of funds held in the Deposit Account.
Section 4. Pledge by Debtor. The Debtor hereby unconditionally and irrevocably
pledges, mortgages, assigns, grants a security interest in, deposits, sets over and confirms unto
the Secured Party and its successors and assigns the Deposit and the funds held in the Deposit
Account, together with any and all interest thereon, if any (the “Pledged Deposits”), as security
for the Debtor’s obligations to Secured Party under the Purchase Agreement. Except as
expressly provided in this Agreement, this Agreement shall not abridge any rights the Secured
Party or the Bank may otherwise have.
Section 5. Control. The parties hereto agree that this Agreement shall establish
“control”, as defined in Section 9-104 of the UCC, of the Deposit Account, which control is
effective to perfect the Secured Party’s security interest in the Deposit Account. If the Bank
shall receive any instruction from the Secured Party regarding disposition of funds in the, the
Bank shall comply with such direction without further consent by the Debtor or any other person.
The Secured Party shall make a good faith effort to send a copy of any such instruction to the
Debtor, but the failure to do so shall not affect the enforceability of such instruction. If the
Debtor issues instructions and such instructions conflict with any instructions issued by the
Secured Party, the Bank shall disregard such instructions and shall follow the instructions issued
ATTACHMENT 2
29
Deposit Account Control Agreement 3
by the Secured Party. The Secured Party agrees with the Debtor that it shall issue instructions
hereunder in the exercise of its rights and remedies as set forth in the Purchase Agreement.
Section 6. Blocked Account; Non-Interest-Bearing. Bank and a designated
representative of Bank shall have the sole right to make withdrawals from the Deposit Account.
Bank shall hold the Pledged Funds in one or more non-interest-bearing accounts (or a non-
interest-bearing book entry subaccount within a single account). The moneys in the Deposit
Account shall be invested in accordance with [INSERT RELATIVELY SAFE OVERNIGHT
SWEEP PROGRAM]. The Debtor acknowledges and agrees that neither the Bank nor Secured
Party shall be responsible for (i) any decline in the market value of the Pledged Deposits or the
failure to notify the Debtor thereof, (ii) any losses resulting from the investment of the Pledged
Deposits or for obtaining any earnings on such investment, or (iii) the failure to take any action
with respect to the Pledged Deposits, except as expressly provided in this Agreement, or in
accordance with this Agreement.
Section 7. Subordination of Lien; Waiver of Set-Off. In the event that the Bank has
or subsequently obtains by agreement, by operation of law or otherwise a security interest in the
Deposit Account or any funds credited thereto, the Bank hereby agrees that such security interest
shall be subordinate to the security interest of the Secured Party. The Bank agrees that the funds
deposited to the Deposit Account will not be subject to deduction, set-off, banker’s lien, or any
other right in favor of the Bank or any person other than the Secured Party (except that the Bank
may set off (i) all amounts due to the Bank in respect of customary fees and expenses for the
routine maintenance and operation of the Deposit Account and (ii) the face amount of any checks
which have been credited to the Deposit Account but are subsequently returned unpaid because
of uncollected or insufficient funds). If there are not sufficient available and collected funds in
the Deposit Account to cover all such fees, expenses and returned items, the Bank may charge
the same against any other account maintained by the Debtor or the Bank may give written
notice thereof to Debtor and Debtor shall pay Bank the full amount of such unpaid fees, charges
and returned items.
Section 8. Choice of Law. Both this Agreement and the Deposit Account shall be
governed by the laws of the State where the Property is located (“Property Jurisdiction”).
Regardless of any provision in any other agreement, for purposes of Article 9 of the UCC, the
Property Jurisdiction shall be deemed to be the Bank’s jurisdiction and the Deposit Account shall
be governed by the laws of the Property Jurisdiction.
Section 9. No Other Agreements, Amendments.
(a) No amendment or modification of this Agreement or waiver of any right
hereunder shall be binding on any party hereto unless it is in writing and is signed by all
of the parties hereto;
(b) The Bank hereby confirms and agrees that: (i) it has not entered into, and
until the termination of this Agreement will not enter into, any agreement with any other
person relating to the Deposit Account and/or any funds credited thereto pursuant to
which it has agreed to comply with instructions of such other person; and (ii) it has not
entered into, and until the termination of this Agreement will not enter into, any
ATTACHMENT 2
30
Deposit Account Control Agreement 4
agreement with the Debtor purporting to limit or condition the obligation of the Bank to
comply with Secured Party’s instructions as set forth in Section 2 hereof.
Section 10. Maintenance of Deposit Account. In addition to, and not in lieu of, the
obligation of the Bank to honor instructions as agreed in Section 2 hereof, the Bank agrees to
maintain the Deposit Account as follows:
(a) Sole Control. The Bank will take all instruction with respect to the
Deposit Account solely from the Secured Party.
(b) Statements and Confirmations. The Bank will promptly send copies of all
statements, confirmations and other correspondence concerning the Deposit Account
simultaneously to each of the Debtor and the Secured Party at the address for each set
forth in Section 13 of this Agreement. The Debtor and the Secured Party shall review the
periodic account statements provided by the Bank with respect to the Deposits Account.
(c) Tax Reporting. All interest credited to the Deposit Account, if any, shall
be reported to the Internal Revenue Service and all state and local taxing authorities
under the name and taxpayer identification number of the Debtor.
Section 11. Release from Liability and Indemnification of the Bank. The Debtor and
the Secured Party hereby agree that (i) the Bank is released from any and all liabilities to the
Debtor and the Secured Party arising from the terms of this Agreement and the compliance of the
Bank with the terms hereof, except to the extent that such liabilities arise from the Bank’s gross
negligence, breach of this Agreement or willful misconduct and (ii) the Debtor, its successors
and assigns shall at all times indemnify and save harmless the Bank from and against any and all
claims, actions and suits of others (other than the Secured Party or its successors and assigns)
arising out of the terms of this Agreement or the compliance of the Bank with the terms hereof,
except to the extent that such arises from the Bank’s gross negligence, breach of this Agreement
or willful misconduct, and from and against any and all liabilities, losses, damages, costs,
charges, reasonable counsel fees and other reasonable expenses of every nature and character
arising by reason of the same, until the termination of this Agreement.
Section 12. Successors; Assignment. The terms of this Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective successors or heirs
and personal representatives who obtain such rights solely by operation of law. The Bank may
assign its rights hereunder only with the express written consent of the Secured Party and by
sending written notice of such assignment to the Debtor.
Section 13. Notices. Any notice, request or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to have been properly
given when delivered in person, or when sent by telecopy or other electronic means and
electronic confirmation of error free receipt is received or five days after being sent by certified
or registered United States mail, return receipt requested, postage prepaid, addressed to the party
at the address set forth below.
ATTACHMENT 2
31
Deposit Account Control Agreement 5
If to Debtor: Hayden Higuera Properties, LLC
Hackman Capital Partners, LLC
1111 Santa Monica Boulevard, Suite 750
Los Angeles, CA 90025
Attention: Beth Berke, Chief Operating Officer
Facsimile: (310) ___-____
Email: bberke@hackmancapital.com
with a copy to: Sheppard Mullin Richter & Hampton LLP
333 South Hope Street, 43rd Floor
Los Angeles, California 90071
Attention: Michael J. Kiely, Esq.
Facsimile: (213) 443-2855
mkiely@sheppardmullin.com
If to Secured Party: City of Culver City
Attn: City Manager
9770 Culver City Boulevard
Culver City, California 90232-0507
Facsimile: (310) 253-5779
with a copy to: Kane Ballmer & Berkman, LLP
515 South Figueroa Street,
Suite 1850
Los Angeles, California 90071
Attention: Theodore Ballmer, Esq.
Facsimile: (213) 213-625-0931
If to Bank: Wells Fargo Bank, N.A.
433 North Camden Drive, Suite 1200
Beverly Hills, California 90210
Attention: Ms. Margaret Kubiak
Facsimile: (310) ___-____
Any party may change its address for notices in the manner set forth above.
Section 14. Termination. Upon the earlier to occur of (i) the Commencement Date, or
(ii) payment in full of the Termination Payment as required by the Purchase Agreement, Bank
shall release the Pledged Deposits (less all amounts which may have been applied by Bank
pursuant to the terms of this Agreement) to Debtor, pursuant to written instructions from the
Debtor, and this Agreement shall be deemed terminated.
Section 15. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any party hereto may
execute this Agreement by signing and delivering one or more counterparts.
ATTACHMENT 2
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Deposit Account Control Agreement 6
Section 16. Additional Provisions Regarding the Bank. The duties and obligations of
the Bank hereunder shall be determined solely by the express provisions of this Agreement. The
Bank shall not be liable except for the performance of its duties and obligations as are
specifically set forth in this Agreement and no implied covenants or obligations shall be read into
the Agreement against the Bank. Except as expressly provided herein, the Bank shall not be
bound in any way by any contract to which it is not a party (whether or not the Bank has
knowledge thereof), it being understood this Agreement expressly sets forth all of Bank’s duties
and obligations with respect to the subject matter hereof. The Bank may, for any reason, resign
from its obligations under this Agreement on sixty (60) days’ notice to Debtor and Secured Party
in which case all funds and other property held in the Deposit Account shall be promptly
delivered in accordance with Secured Party’s written direction.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ATTACHMENT 2
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Deposit Account Control Agreement S-1
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date first written above.
DEBTOR:
HAYDEN HIGUERA PROPERTIES, LLC, a
Delaware limited liability company
By: By:
a ______________________
By:
Name:
Its:
ATTACHMENT 2
34
Deposit Account Control Agreement S-2
BANK:
WELLS FARGO BANK, N.A., a national banking
association
By:
________________________, Vice President
ATTACHMENT 2
35
Public Parking Easement Agreement
Page 1 of 14
PUBLIC PARKING EASEMENT AGREEMENT
OFFICIAL BUSINESS
Document entitled to free recording
per Government Code Section 6103
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attention: City Manager
ABOVE SPACE FOR RECORDER’S USE ONLY
PUBLIC PARKING EASEMENT AGREEMENT
THIS PUBLIC PARKING EASEMENT AGREEMENT (“Agreement”) is made and
entered into as of the ___ day of ____________________, 2012, by and between HAYDEN
HIGUERA PROPERTIES, LLC, Delaware limited liability company (“Grantor”), and the
CITY OF CULVER CITY, a charter law city, duly formed, validly existing and in good standing
under the laws of the State of California (“Grantee”). Grantor and Grantee are each sometimes
referred to herein as a “Party” and, collectively, as the “Parties.”
RECITALS
A. The Grantor is in the process of developing an above ground parking structure
containing approximately 556 parking spaces (the “Parking Structure”) on land located at 8555
Higuera Avenue, Culver City, California, described in the “Legal Description” attached hereto
as Exhibit A and incorporated herein by this reference, and known as APN: 4024-005-011 and
4024-005-012 (the “Property”).
B. In accordance with that certain Agreement of Purchase and Sale and Joint Escrow
Instructions entered into by and between Grantor and Grantee as of January 31, 2012 (the
“Purchase Agreement”), Grantee desires to grant and Grantee desires to acquire an exclusive
parking easement on the Property (the “Public Parking Easement”) providing for the exclusive
use by Grantee and its invitees of 180 parking spaces (the “Public Parking Spaces”) in the
Parking Structure on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Grantor and Grantee hereby agree as follows.
AGREEMENT
ATTACHMENT 3
36
Public Parking Easement Agreement
Page 2 of 14
1. Public Parking Easement.
a. Grant of Easement. Subject to the terms and conditions set forth in this
Agreement, Grantor hereby grants to Grantee a non-exclusive easement on the Property for the
exclusive use by Grantee and its invitees of 180 undesignated parking spaces in the Parking
Structure, together with the non-exclusive right to go over, upon and across those portions of the
Property designated by signage for reasonably necessary for pedestrian and vehicular ingress into
and egress from the Parking Structure and the parking spaces (collectively, the “Public Parking
Easement”).
b. Off Street Parking Covenants. The Public Parking Easement includes the
right for Grantee to assign, transfer, covenant, or otherwise designate its right to use the Public
Parking Spaces pursuant to the Public Parking Easement, or any of them, to the owners of
parcels of real property located within the Hayden Tract area of Culver City, for credit against
off-street parking requirements for buildings on such parcels in accordance with the City’s
applicable land use regulations. Any such assignment, transfer, covenant, or other designation
with respect to a Public Parking Space is referred to herein as an “Off Street Parking
Covenant”.
c. Term of Easement. The Public Parking Easement shall expire on the
fiftieth (50
th
) anniversary of the date (the “Commencement Date”) of initial delivery of the
Parking Passes (as defined in Section 2 below) by Grantor to Grantee, which shall not be
delivered prior to the completion of the Parking Structure, as evidenced by issuance by the City,
in its governmental capacity, of a certificate of occupancy for the Parking Structure. Promptly
following the initial delivery of the Parking Passes by Grantor to Grantee, Grantor will cause to
be recorded in the Official Records of Los Angeles County (the “Official Records”), a
memorandum referencing this Agreement and setting forth the Commencement Date and
expiration date as provided in this Section 1.c. Notwithstanding the foregoing, for so long as the
Parking Structure remains used for parking purposes by Grantor, the Public Parking Easement
and all terms of this Agreement related thereto shall remain in full force and effect.
2. Parking System. The Parking Structure will contain an operating system (the
“Parking System”) whereby Pass Holders (as defined below) shall have the right, by using a key
card, code or other similar access control mechanism (“Entry Mechanism”) to enter the Parking
Structure and by displaying such device, a sticker, placard and/or other identification device
(each, a “Parking Sticker” and together with its related Entry Mechanism, a “Parking Pass”),
to enter and park in the Parking Structure at any time, on an unreserved basis, without payment
or tariff, subject to the Parking Rules and Regulations. The holder of any Parking Pass is
referred to herein as a “Pass Holder”). Each Passholder must register his/her/its name and
vehicle with the Grantor. There will be no charge to Grantee for issuance of a Parking Pass,
other than for replacement of a Parking Pass that is lost by a Pass Holder. All costs associated
with the Parking System, including issuance of Parking Passes and Parking Stickers, will be
Operating Expenses (as defined into Section 4 below).
3. Use and Maintenance of the Parking Easement Area. The use and maintenance of
the Parking Easement shall be subject to the following terms and conditions:
ATTACHMENT 3
37
Public Parking Easement Agreement
Page 3 of 14
a. Issuance and Sale of Parking Passes. Grantor will issue to Grantee a
Parking Pass for each Public Parking Space and Grantee will have the right to sell each such
Parking Pass and related Parking Sticker to members of the public, and retain all consideration
received therefore. Grantor will have the right to sell all other Parking Passes and related
Parking Stickers to members of the public, and retain all consideration received therefore. It is
the intention of the parties that each Parking Pass will be sold for its then fair market value,
taking into account the term of the parking contract, and the parties agree to meet periodically to
establish rates. Notwithstanding the foregoing, provided that (i) Grantor is the owner of the
building located at 8555 Higuera Avenue and 8600 Hayden Place (collectively, the “Adjacent
Buildings”), and (ii) such use does not interfere with the availability of parking spaces for Pass
Holders, Grantor will have the right to permit access to the Parking Structure for parking by
invitees and guests of the Adjacent Buildings, on a ticket validation or other basis and retain all
revenues derived therefrom.
b. No Improvements. Grantee shall have no right to make any
improvements, alterations, additions or changes to any portion of the Parking Structure, or any
appurtenance thereto.
c. Grantor shall maintain and repair the Parking Structure, including the
Public Parking Spaces, and all appurtenances thereto (including landscaping, lighting and
signage) in a manner consistent with Grantor’s operation of the Parking Structure. Grantor shall
keep the Parking Structure reasonably free of debris, waste and graffiti.
d. Grantor’s obligation to maintain and repair the Parking Structure, including
the Public Parking Spaces, shall include, but not be limited to the following:
(1) Maintaining the surface of all automobile and pedestrian areas
smooth and evenly covered with the type of surfacing materials originally installed thereon or
such substitute therefor as shall be in all respects equal thereto or better in quality, appearance
and durability;
(2) Maintaining such appropriate entrance, exit and directional signs,
markers and lighting as shall reasonably be required;
(3) Cleaning lighting fixtures and relamping and/or reballasting as
needed;
(4) Repainting striping, markers, directional signs, and the like, as
necessary to maintain the same in quality condition;
(5) Maintaining access between the Property and public rights-of-way,
including streets, sidewalks, curbs, gutters, driveways, signs and poles, curb painting and
markings;
(6) Maintaining surface and storm lateral drainage systems;
(7) Maintaining and repairing (including painting and cleaning) all
exterior surfaces and improvements;
ATTACHMENT 3
38
Public Parking Easement Agreement
Page 4 of 14
(8) Maintaining landscaping consistent with the custom and practice
generally applicable to comparable parking facilities in the City, including, without limitation,
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning,
trimming and shaping of trees and shrubs to maintain a natural and healthy appearance, road
visibility, and irrigation coverage; replacement, as reasonably 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; and
(9) Maintaining all sidewalks, paths-of-travel and other paved areas in
and around the Public Parking Spaces in a clean and weed-free condition; including, without
limitation, 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; clearance and cleaning of all areas on which maintenance operations are performed
to ensure that all cuttings, weeds, leaves and other debris are properly disposed of in a timely and
reasonable manner.
e. Grantor may, from time to time, reasonably limit the use of the Parking
Structure, including the Public Parking Spaces, in order to accommodate maintenance, security,
repairs and restoration of any portion of the Parking Easement Area and/or to prevent the
establishment of prescriptive rights. Except in cases of emergency, Grantor shall provide at least
ten (10) days advance notice to Grantee prior to undertaking any maintenance, repairs,
installations, replacements or restorations within the Parking Easement Area that require closure
of portions of the Parking Structure such that more than ten percent (10%) of the spaces are
rendered unusable.
f. If Grantee gives written notice to Grantor that the Grantor has failed to
perform any repairs, maintenance and/or other obligations as required under this Section 3, and
such notice describes the deficiencies claimed by the Grantee, Grantor shall correct, remedy or
cure such deficiency within thirty (30) days after receipt of such notice, or such longer period of
time as is reasonably necessary, given the circumstances; provided, however, that if Grantee
notifies the other Party that such deficient repair and/or maintenance is an urgent matter relating
to public health and safety, then Grantor shall commence to cure, or shall cause such cure to be
commenced, within forty-eight (48) hours following the submission of Grantee’s deficiency
notice and shall proceed to cure such deficiency as soon as possible thereafter, using all
commercially reasonable efforts.
g. Grantor shall provide all utility services necessary for or supplied to the
Parking Structure, which may include, without limitation, electric power, gas, water, telephone,
and all other utility services.
h. The use and exercise of the Public Parking Easement by Grantee and
Grantee’s permittees and invitees shall be subject to rules and regulations established by the
Grantor; provided, however, (i) such rules and regulations shall not conflict with the terms and
conditions of this Agreement, (ii) materially diminish the utility of the Public Parking Easement
or the use of the Public Parking Spaces, or (iii) apply or be applied on a discriminatory basis to
holders of Parking Passes issued by Grantee. Such rules and regulations may reasonably limit or
ATTACHMENT 3
39
Public Parking Easement Agreement
Page 5 of 14
otherwise restrict access to the Parking Structure and the time, manner and scope of use of the
Public Parking Easement and the Public Parking Spaces.
i. Grantor shall pay, or cause to be paid, as and when they become due and
payable, and before any fine, penalty, interest or cost may be added thereto, or become due or be
imposed by operation of law for the nonpayment thereof, all taxes, assessments, franchises,
excises, license and permit fees, and other governmental levies and charges, general and special,
ordinary and extraordinary, unforeseen and foreseen, of any kind and nature whatsoever which at
any time may be assessed, levied, confirmed, imposed upon, or become due and payable out of
or in respect of, or become a lien on the Property or any improvements constructed thereon or
any part thereof or any appurtenance thereto. Notwithstanding the foregoing, the portion of the
taxes on the Property reasonably allocable to the Parking Structure and the land on which it is
situated will be included within Operating Expenses.
j. Prior to either Party’s exercise of any rights or obligations under this
Agreement, each Party shall furnish to the other evidence of commercial general liability
insurance, in form, coverage and with limits reasonably acceptable to the other Party but not less
than two million dollars ($2,000,000.00). The above notwithstanding, the Grantee may submit
as a substitute for the required form, a Certificate of Self Insurance with proper evidence of
excess liability coverage. The other Party shall be named as an additional insured on the
insuring Party’s liability policy. The following language or its equivalent shall appear in each
policy or the applicable certificate of insurance: “It is hereby understood and agreed that this
policy is primary and noncontributing with any other valid and collectible insurance.” Each
policy shall be underwritten by insurance companies with a “Best’s Key Rating Guide” rating of
A or better and financial size of VIII or greater. Each policy shall contain an endorsement
providing for an unqualified thirty (30) days advance written notice to the other Party prior to
cancellation, termination or material reduction in coverage, or ten (10) days prior to termination
for nonpayment of premium. Each Party shall provide a certified copy of such insurance policy
to the other Party. Each Party shall cause its insurance obligation under this Section 3.k to
survive any termination or expiration of this Agreement for a period of two (2) years. In
addition, Grantor shall maintain broad form property damage insurance coverage for physical
damage or destruction of the Parking Structure, including damage from fire, water, collapse,
theft, riot, malicious mischief, earthquake (unless not required by the holder of any first deed of
trust lien on the Parking Structure) and flood, with a full replacement cost endorsement. The
premiums for such property coverage will be Operating Expenses hereunder. To the extent any
such property coverage includes buildings other than the Parking Structure, premiums therefore
and deductibles thereunder will be reasonably allocated.
k. Each Party (the “Indemnifying Party”) shall be liable to the other Party
(the “Indemnified Party”) for any damage to the Property and/or the Parking Structure that may
be sustained by reason of the gross negligence of the Indemnifying Party or the Indemnifying
Party’s permittees, invitees, agents, contractors, subcontractors, employees, officials, members
and other representatives, but NOT including the holder of any Parking Pass issued or sold by
such Indemnifying Party (the “Indemnifying Party’s Representatives”). Each Indemnifying
Party hereby agrees to protect, defend, indemnify and hold harmless the Indemnified Party and
the Indemnified Party’s permittees, invitees, agents, contractors, subcontractors, employees,
officials, members and other representatives (the “Indemnified Party’s Representatives”) from
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and against any and all liabilities, claims, actions, damages, losses, expenses, judgments,
demands and defense costs (including, without limitation, costs and fees of litigation, including
attorney’s fees and costs) (collectively, the “Indemnified Claims”) caused by the Indemnifying
Party’s and/or any of the Indemnifying Party’s Representative’s willful misconduct or
negligence or the Indemnifying Party’s and/or any of the Indemnifying Party’s Representative’s
failure to comply with any obligation contained in this Agreement; provided that no
Indemnifying Party shall be required to indemnify an Indemnified Party or any Indemnified
Party’s Representatives for any Indemnified Claim to the extent caused by the negligence or
willful misconduct of the Indemnified Party and/or any of the Indemnified Party’s
Representatives. Any insurance policy limits shall not act as a limitation upon the amount of
indemnification to be provided pursuant to this Agreement. The indemnity provisions of this
Section 3.l shall survive any expiration or termination of this Agreement.
l. If Grantor shall fail to pay and to discharge any mortgage, pledge, lien,
charge, encumbrance or claim (collectively, “Liens”), for which the Property or any portion
thereof has been pledged by Grantor as security, Grantee may (but shall not be obligated to) pay
or discharge it, and the amount paid by Grantee and the amount of all costs, expenses, interest
and penalties connected therewith, including attorney fees, together with interest at the rate of
three percent (3%) over the prime rate of Wells Fargo Bank or comparable institution in the State
of California on the date payment is made by Grantee, shall be deemed to be and shall be
payable by Grantor to Grantee on demand.
m. Grantor reserves the right to develop and use the Property and the Parking
Structure for any purpose not inconsistent with the Public Parking Easement.
n. Nothing herein shall prevent Grantor from transferring or encumbering
any interest in the Property or the Parking Structure or any portion thereof.
4. Operating Expenses.
a. Grantee shall pay to Grantor, in the manner and at the times provided
herein, “Grantee’s Share” (as defined below), of costs and expenses (collectively, "Operating
Expenses") incurred by Grantor in the operation, maintenance, management, repair,
replacement, upgrade and cleaning of the Parking Structure in accordance with Section 3 during
the Term (collectively, “Maintenance”). Operating Expenses will include, without limitation,
those listed on Exhibit "B" attached hereto, and capital expenditures to the extent reasonably
necessary, in the reasonable, good faith judgment of Grantor, to the safe, efficient, cost effective
operation, maintenance, management, repair, replacement, upgrade and cleaning of the Parking
Structure. Grantor shall seek competitive bids from at least three (3) qualified contractors with
respect to each contract to be entered into by Grantor with respect to Maintenance with a value in
excess of the Contract Minimum (as defined below). No contracts for maintenance will be
entered into with contracting parties who are affiliated with Grantor (which for purposes of this
sentence means Grantor has a greater than ten percent (10%) direct or indirect ownership interest
in such contractor). To the extent that any contract for services or utilities covers both the
Parking Structure and any portion of the Adjacent Buildings, then such contract will be equitably
prorated between such Adjacent Buildings and the Parking Structure. Grantor will be entitled to
retain all or any portion of the maximum parking management fee described on Exhibit “B”.
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b. Certain Definitions. As used herein, “Grantee’s Share” means the
percentage yielded by dividing 180 spaces by the total number of spaces in the parking Structure.
As used herein, “Contract Minimum” means, initially $20,000, which amount will increase, but
not decrease, on each anniversary of the Commencement Date (each, an "Adjustment Date") by
adding an amount (the "CPI Escalation Amount") equal to the product obtained by multiplying:
(a) the Contract Minimum then in effect times (b) for the first Adjustment Date, the percentage
increase in the CPI (defined below) from the Commencement Date through the first Adjustment
Date, and thereafter, the percentage increase in the CPI from the immediately prior Adjustment
Date to the current Adjustment Date. In no event shall the Contract Minimum in effect
immediately prior to any Adjustment Date be decreased, or shall Grantee be entitled to any credit
because of any decrease in the CPI. "CPI" shall mean the Consumer Price Index for All Urban
Consumers, All Items for the Los Angeles-Long Beach Primary CMSA (Base year 1982-84 =
100) published by the United States Department of Labor, Bureau of Labor Statistics. If the
Bureau of Labor Statistics substantially revises the manner in which the CPI is determined, an
adjustment shall be made in the revised CPI which would produce results equivalent, as nearly as
possible, to those which would be obtained hereunder if the CPI were not so revised. If the
1982-84 average shall no longer be used as an index of 100, such change shall constitute a
substantial revision. If the CPI becomes unavailable to the public because publication is
discontinued, or otherwise, Grantor shall substitute therefor a comparable index based upon
changes in the cost of living or purchasing power of the consumer dollar published by a
governmental agency, major bank, other financial institution, university or recognized financial
publisher. If the CPI is available on a monthly (or alternating monthly) basis, the CPI for the
months in which (or immediately preceding, as the case may be) the Commencement Date and
Adjustment Date(s), respectively occur shall be used.
c. Audit Right. Grantor shall keep in its offices in Los Angeles County full
and accurate books and accounts, records, cash receipts, and other pertinent data relating to the
Maintenance of the Parking Structure. Such books of account, records, cash receipts, and other
pertinent data shall be kept for a period of five (5) years after the end of the calendar year to
which such items pertain. Grantee shall be entitled during such five (5) years to inspect, examine
and to copy, once during and as to each calendar year, at Grantee's expense Grantor's books of
account, records, cash receipts, and other pertinent data as necessary or appropriate for the
purpose of this Section 4. Grantor shall cooperate fully with Grantee in making the inspection.
Grantee shall also be entitled at Grantee's expense, once during each calendar year
and once within ninety (90) days after expiration or termination of this Agreement, to an
independent audit of Grantor's books of account, records, cash receipts, and other pertinent data
relating to the Maintenance of Parking Structure, by a certified public accountant to be
designated by Grantee. Any such audit shall be conducted during usual business hours. If the
audit shows that there is an overpayment of Grantee’s share of Operating Expenses, the
overpayment shall become immediately due and payable to Grantee. If such overpayment
exceeds the amount of the greater of Five Thousand Dollars ($5,000.00), or three percent (3%) of
Grantee’s actual share of Operating Expenses due in any year in which there is an overpayment,
Grantor shall reimburse Grantee for the cost of Grantee's audit. If the audit shows that there is an
underpayment of Grantee’s share of Operating Expenses, the underpayment shall become
immediately due and payable to Grantor. If Grantee has not audited Grantor hereunder with
respect to a particular calendar year within the above five year period, or has not advised Grantor
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in writing of any exceptions based on said audit within said five year period, then Grantee shall
be deemed to have waived its right to redetermine Grantee’s Share of Operating Expenses for
such year.
5. Right to Grant Easements. Nothing contained in this Agreement shall be deemed
to prohibit or limit the right of Grantor to (a) issue Parking Passes to members of the public,
including tenants and employees of tenants in the Adjacent Buildings, and (b) grant easements to
any third party, including, without limitation, any governmental agency, public body and/or
utility company for the construction, installation, operation, use, maintenance, relocation,
modification, enlargement, replacement, removal, extension or alteration of streets or the
installation of utilities and/or utility facilities including, without limitation, electrical power lines,
transformers and transformer pads and other public services.
6. Termination By Grantee.
a. Termination for Failure of Commencement Date to Occur Timely. If the
Commencement Date has not occurred by June 30, 2014 (subject to Permitted Delays, as defined
in the Purchase Agreement) (the “Outside Commencement Date”), then, upon written notice by
Grantee and Grantor’s payment of the Termination Payment (as defined in the Purchase
Agreement), this Agreement will terminate and be of no further force or effect.
b. Other Termination Right. Grantee shall have the right, upon not less than
ninety (90) days prior written notice to Grantor, to terminate this Agreement, including the
Public Parking Easement. Upon any such termination, (i) all Off Street Parking Covenants shall
be deemed to have terminated and all Parking Passes shall be deemed to be revoked and invalid,
at no expense to Grantor, and (ii) Grantee will be responsible for the payment of Grantee’s Share
of Operating Expenses until the effective date of termination.
c. Quitclaim. If Grantee exercises its termination right in accordance with
the provisions of this Section 6, Grantee shall execute and deliver to Grantor all documents
reasonably required by Grantor, including, without limitation, the Quitclaim (as defined in
Section 7.d below). Except as set forth in Sections 3.k and 3.l, 4 and 6(b) above, as of the
termination date both Parties shall be freed and discharged of all further obligations hereunder.
7. Damage; Other Termination by Grantor.
a. Material Damage or Destruction Prior to Commencement Date. Subject to
Permitted Delays (as defined in the Purchase Agreement), if material damage to or destruction of
the Parking Structure occurs prior to the issuance of a certificate of occupancy for the Future
Parking Structure by the City (acting in its governmental capacity), Grantor shall give Grantee
written notice thereof (“Damage Notice”) within sixty (60) days following the damage.
Provided that (i) such damage is fully insured, other than deductible amounts which Grantor
certifies in such Damage Notice it has deposited with its construction lender, such that there are
sufficient funds to complete construction of the Parking Structure, and (ii) such Damage Notice
contains a schedule showing the estimated time to completion, including the period of delay
(“Damage Delay Period”) resulting from such damage and the repair thereof; and (ii) such
Damage Notice includes the written approval of the holders of all deeds of trusts or mortgage
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encumbering the Property, consenting to the items in clauses (i) and (ii) above, then (y) Grantor
shall proceed within 90 days following such damage to diligently repair such damage, and (z) the
Outside Commencement Date will be deemed to have bee extended by the number of days in the
Damage Delay Period. If such damage is not fully insured (other than customary deductibles)
for any reason other than a default by Grantor to maintain insurance required hereunder, Grantor
shall have the right, but not the obligation, exercisable by giving notice to Grantor within fifteen
(15) days after receiving written notice of such damage or destruction, to terminate this
Agreement in which case neither party shall have any further rights or obligations hereunder
except that Grantor shall cause to be paid to Grantee the Termination Payment (as defined in and
in accordance with the Purchase Agreement) concurrently with its receipt of the Quitclaim (as
defined below), and this Agreement will terminate except for provisions hereof which expressly
survive termination.
b. Material Damage or Destruction Following the Commencement Date. If
material damage to or destruction of the Parking Structure occurs following the Commencement
Date, Grantor shall give Grantee a Damage Notice within sixty (60) days following the damage.
Provided that (i) such damage is fully insured, other than deductible amounts, which Grantor
certifies in such Damage Notice it has deposited with the holder of the first deed of trust lien on
the Property, such that there are sufficient funds to complete construction of the Parking
Structure, and such Damage Notice includes the written approval of the holders of all deeds of
trust or mortgages encumbering the Property, consenting to the items in clauses (i) and (ii)
above, then (y) Grantee shall deliver to Grantor an amount equal to Grantee’s Share of the
deductible amounts, and (z) Grantor shall proceed within ninety (90) days following such
damage to diligently repair such damage. If Grantor elects to repair or restore such damaged or
destroyed portions of the Parking Structure, then Grantee agrees that its right to use the Parking
Easement Area and the Public Parking Spaces may be temporarily suspended during Grantor’s
repair and/or restoration of the Parking Structure. If such damage is not fully insured (other than
customary deductibles) for any reason other than a default by Grantor to maintain insurance
required hereunder, or if Grantor so elects in its sole discretion, Grantor shall have the right,
exercisable by giving notice to Grantor within fifteen (15) days after receiving written notice of
such damage or destruction, to terminate this Agreement in which case neither party shall have
any further rights or obligations hereunder except that Grantor shall cause to be paid to Grantee
an amount equal to Grantee’s Share of the insurance proceeds received by Grantor in connection
with such casualty concurrently with its receipt of the Quitclaim (as defined below), and this
Agreement will terminate except for provisions hereof which expressly survive termination.
c. Termination After End of Stated Term. Grantor will have the right, upon
not less than 90 days prior written notice, to terminate this Agreement and the Parking Easement
and demolish the Parking Structure any time after the fiftieth (50
th
) anniversary of the
Commencement Date, without payment of consideration of any kind Grantee and/or the holders
of any Off Street Parking Covenant.
d. Quitclaim. If Grantor exercises its termination right in accordance with
the provisions of this Section 7.a, concurrently with its receipt of the Termination Payment or
Grantee’s Share of insurance proceeds, as applicable, Grantee shall execute and deliver to
Grantor all documents reasonably required by Grantor, including, without limitation, a quitclaim
deed (“Quitclaim”), to terminate this Agreement, including the Public Parking Easement.
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8. Eminent Domain. In the event that all or any material portion of the portion of
the Property on which the Parking Structure will or is constructed is subject to a taking or a
threatened taking by a public authority, Grantee shall have the right, but not the obligation,
exercisable by giving notice to Grantor within fifteen (15) days after receiving written notice of
such taking, either (i) to terminate this Agreement, in which case, unless otherwise agreed, this
Agreement will terminate and each party will be entitled to pursue and receive any condemnation
award payable by reason of such taking with respect to its interest. Neither party may settle any
such claims with respect to the other party’s interests hereunder.
9. Miscellaneous.
a. Notices. Any notice, consent or approval required or permitted to be
given under this Agreement shall be in writing and shall be deemed to have been given upon (i)
hand delivery, (ii) one (1) “Business Day” (as hereinafter defined) after being deposited with
Federal Express or another reliable overnight courier service for next day delivery, (iii) upon
facsimile transmission (except that if the date of such transmission is not a Business Day, then
such notice shall be deemed to be given on the first Business Day following such transmission),
or (iv) three (3) Business Days after being deposited in the United States mail, registered or
certified mail, postage prepaid, return receipt requested, and addressed as follows (or such other
address as either party may from time to time specify in writing to the other):
If to Grantor: Hayden Higuera Properties, LLC
c/o Hackman Capital Partners, LLC
1111 Santa Monica Boulevard, Suite 750
Los Angeles, CA 90025
Attention: Beth Berke, Chief Operating Officer
Email: bberke@hackmancapital.com
If to Grantee: The City of Culver City
9770 Culver Boulevard
Culver City, CA 90232
Attention: City Manager
Fax: 310/253-5779
Notice of change of address shall be given by written notice in the manner
detailed in this Section. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no notice was given shall be deemed to constitute receipt of the notice,
demand, request or communication sent.
b. Entire Agreement. This Agreement contains the entire agreement between
the Parties with respect to the matters set forth herein, and supersedes all prior or
contemporaneous agreements (whether oral or written) between the Parties with respect to the
matters set forth herein.
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Public Parking Easement Agreement
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c. Successors and Assigns. Grantor and Grantee hereby agree that the
Property is and shall be held, conveyed, hypothecated, encumbered, leased, rented, used and
occupied subject to the limitations, restrictions, easements, covenants and conditions set forth in
this Agreement and that all of the limitations, restrictions, easements, covenants and conditions
set forth in this Agreement shall run with the land, shall be binding on and inure to the benefit of
all parties having or acquiring any right, title or interest in the Property and each of their
respective successors and assigns and shall be enforceable in accordance with applicable law,
including, but not limited to, the law of contracts, easements, equitable servitudes and the
provisions of Section 1468 of the California Civil Code; provided, however, upon the transfer by
the Grantor of the Property, including, without limitation, the transfer by Grantor of Grantor’s
interest in the Property, to a condominium owners’ association, Grantor shall be automatically
released from its obligations and any liabilities under this Agreement arising subsequent to the
date of such transfer and any such obligations and liabilities shall become the sole responsibility
of the transferee who acquires an interest in the Property; provided, further, however, in no event
shall any owner of one or more condominiums within the Property, other than Grantor or any
“affiliate” (as hereinafter defined) of Grantor, have any obligation or liability in connection with
the obligations set forth in this Agreement. As used in this Agreement, the term “affiliate” shall
mean an entity controlling, controlled by or under common control with the entity to which the
term applies, whether by ownership, contract or voting control.
d. Amendment. This Agreement may be modified only in a writing signed
by the Parties in interest at the time of the modification.
e. Legal Action. Any Party may, in addition to any other rights or remedies,
institute legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, seek to enjoin any threatened or attempted violation hereof, or enforce by specific
performance the obligations and rights of the Parties hereto.
f. Future Litigation Expenses. Each party shall be responsible for their
respective legal fees and costs in connection with any action or suit against the other party
hereunder arising out of this Agreement.
g. Severability. In case any one or more provisions set forth in this
Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, any such
invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been incorporated herein; provided that the deletion of such provision does not materially
alter this Agreement.
h. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California.
i. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, taken together, shall
constitute one and the same instrument. Any signature page may be detached from any
counterpart and re-attached to another counterpart to make one full and complete executed
agreement.
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Public Parking Easement Agreement
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j. Authority. Each Party to this Agreement represents and warrants that it
has authority to enter into this Agreement and to grant the rights and assume the obligations set
forth in this Agreement. Each individual signing this Agreement represents and warrants that he
or she has been authorized to do so by proper action of the Party on whose behalf he or she has
signed.
k. Non-Liability of City Officials and Employees. No member, official,
agent, legal counsel or employee of City or the Agency shall be personally liable to Grantor or
any of its successors in interest in the event of any default or breach by City or the Agency or for
any amount which may become due or on any obligation under the terms of this Agreement.
l. Captions. The captions of this Agreement are inserted for convenience
and are not part of this Agreement.
m. No Third Party Beneficiary. This Agreement is entered into solely for the
benefit of the Parties hereto and their successors and assigns. Other than the Parties hereto and
their successors and assigns, no third party shall be entitled to directly or indirectly base any
claim, or to have any right arising from or related to this Agreement.
n. Mutual Cooperation. The Parties shall take all further actions, including
the execution of such additional documents, as shall be necessary to effectuate the purpose of
this Agreement.
o. Facsimile Signatures. Signatures delivered by facsimile shall be as
binding as originals upon the Parties so signing and delivering.
p. Business Days. As used herein, the term “Business Days” shall mean
days other than Saturdays, Sundays, and legal holidays and closures observed by the Grantee,
and “days” means calendar days. If the time for performance of an obligation under this
Agreement falls on other than a Business Day, the time for performance shall be extended to the
next Business Day.
[Signatures being on following page.]
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Public Parking Easement Agreement
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
as of the date first above written.
“GRANTOR”
HAYDEN HIGUERA PROPERTIES, LLC,
Delaware limited liability company
By:
Name:
Its:
By:
Name:
Its:
[Signatures continue on following page.]
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Public Parking Easement Agreement
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“GRANTEE”
CITY OF CULVER CITY
By:
JOHN NACHBAR, City Manager
APPROVED AS TO CONTENT:
By: ____________________________
Sol Blumenfeld, Community Development Director
APPROVED AS TO FORM:
By:
CAROL SCHWAB, City Attorney
APPROVED AS TO FORM:
By:
THEODORE M. BALLMER, Special Counsel
ATTACHMENT 3
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Public Parking Easement Agreement
CALIFORNIA ACKNOWLEDGEMENT
State of California
County of __________________________)
On _______________________ before me,
(insert name and title of the officer)
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 3
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Public Parking Easement Agreement
CALIFORNIA ACKNOWLEDGEMENT
State of California
County of __________________________)
On _______________________ before me,
(insert name and title of the officer)
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 3
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Public Parking Easement Agreement
CALIFORNIA ACKNOWLEDGEMENT
State of California
County of __________________________)
On _______________________ before me,
(insert name and title of the officer)
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 3
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Public Parking Easement Agreement
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
Real property in the City of Culver City, County of Los Angeles, State of California, described
as follows:
All that certain real property situated in the County of Los Angeles, State of California, described as
follows:
Parcel 1:
Lot 4 of Tract No. 32560, in the City of Culver City, County of Los Angeles, State of California, as per
map recorded in Book 865, Page(s) 11 to 14 inclusive of Maps, in the Office of the County Recorder of
said County.
Except an undivided one-fourth of all mining and mineral rights or substances whether solid or liquid, in
or under said land, as reserved by RKO Teleradio Pictures, Inc., in deed recorded January 30, 1958, as
Instrument No. 1381, in Book 56452, Page 110, Official Records.
The right to use or occupy the surface and subsurface area of said land to a depth of 500 feet was
relinquished to the record owner of said land, by a deed recorded March 4, 1959, in Book D-387,
Page 496, Official Records.
Assessor's Parcel Number: 4204-005-011
Parcel 2:
Lot 5 of Tract No. 32560, in the City of Culver City County of Los Angeles, State of California, as shown
on the map filed June 29, 1976, in Book 865, Page(s) 11 through 14 inclusive of Maps, in the Office of
the County Recorder of said County.
Excepting therefrom an undivided one-fourth of all mining and mineral rights or substances whether solid
or liquid, in or under said land, as reserved by RKO Teleradio Pictures, Inc., in deed recorded January 30,
1958, as Instrument No. 1381, in Book 56452, Page 110, Official Records.
The right to use or occupy the surface and subsurface area of said land to a depth of 500 feet was
relinquished to the record owner of said land, by a deed recorded March 4, 1959, as Instrument No. 3921,
in Book D-387, Page 496, Official Records.
Assessor's Parcel Number: 4204-005-012
Parcel 3:
Non-exclusive easements for (a) pedestrian and vehicular ingress and egress, (b) installation, maintenance
and operation of public utilities services, and (c) construction, maintenance, and repair of private
driveways, curbs, gutters, parking lighting and landscaped areas, as set forth in that certain Declaration of
Protective Covenants, Conditions and Restrictions and Grant of Easement, made November 12, 1976, and
recorded on November 26, 1976, as Instrument Number 2360 in the Official Records of Los Angeles
County, California.
ATTACHMENT 3
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Public Parking Easement Agreement
EXHIBIT B
OPERATING EXPENSES
Operation, maintenance, management, repair,
replacement and cleaning of the Parking
Structure
Fire sprinkler, emergency generator, fire
control room and other fire/life safety
equipment maintenance
Gardening Cost of the electrical power
Landscaping Property taxes (allocable to portion of property
on which Parking Structure is situated)
Repaving and resurfacing the access roads,
driveways and walkways
Property management fee, not to exceed seven
percent (7%) of the total Operating Expenses
in any period
Repairs and replacements of equipment Reserve for anticipated Common Area
Expenses
Painting, re-striping driveways and walkways Primary Sign Maintenance
Repair and replacement of lighting Secondary Sign Maintenance
Water and sewer and other utilities charges Maintenance of Waste Management Facility
Common refuse storage and removal Ongoing charges for security and fire
protection equipment and services, and similar
items
Cleaning, sweeping and trash removal
ATTACHMENT 3
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Deposit Account Control Agreement S-3
SECURED PARTY:
CITY OF CULVER CITY
By:
JOHN NACHBAR, City Manager
APPROVED AS TO CONTENT:
By: ____________________________
SOL BLUMENFELD, Community Development Director
APPROVED AS TO FORM:
By:
CAROL SCHWAB, City Attorney
APPROVED AS TO FORM:
By:
THEODORE M. BALLMER, Special Counsel
ATTACHMENT 2
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ATTACHMENT 3
55
ATTACHMENT 3
55
The City Council is pleased to invite your participation in the following discussion:
THE CITY COUNCIL WILL CONSIDER AN AGREEMENT WITH HACKMAN CAPITAL PARTNERS
LLC. OUTLINING THE TERMS AND CONDITIONS IN WHICH PUBLIC PARKING SPACES WILL
BE CREATED AT 8550 HIGUERA STREET/8660 HAYDEN PLACE.
WHO: Staff Contact – Joe Susca, Redevelopment Project Manager,
310.253.5763 or joe.susca@culvercity.org
WHAT: Approval of an agreement outlining the terms and conditions in which public parking spaces will
be created in a new parking structure to be constructed at 8550 Higuera Street/8660 Hayden
Place in the Hayden Tract.
WHERE: City Hall – Mike Balkman Council Chambers
9770 Culver Boulevard, Culver City, CA 90232
WHEN: Monday, January 30, 2012 – 7:00 PM
WHY: To obtain public comment and input on the proposed terms and conditions of the public parking
agreement.
More Info: The staff report will be available for viewing on the City’s website on or after January 25, 2012,
at www.culvercity.org/agendas or at the City Hall Redevelopment Division, or the Julian Dixon
Library, 4975 Overland Avenue, Culver City. Persons unable to attend the meeting but wish to
submit written comments may do so by any of the following means to Joe Susca,
Redevelopment Project Manager BEFORE Noon on January 30, 2012:
1. By LETTER (Culver City-City Hall, Redevelopment Division,
9770 Culver Blvd., Culver City, CA 90232);
2. By FAX to 310-253-5779
3. By E-MAIL to joe.susca@culvercity.org
4. By PHONE at 310-253-5763
City Council/Agency Board meetings can be viewed live on Channel 35 by most Time-Warner
subscribers. To view the meetings live online please visit www.culvercity.org/agendas.
You may sign up for the City’s E-Mail Notification System by visiting www.culvercity.org and selecting “Subscribe” from
the very top right of the webpage or by calling the City Clerk’s Office at 310-253-5851. A U.S. Post notification system is
also available. They are both FREE!
This notice was mailed on January 17, 2012
Consideration of an Agreement with
Hackman Capital Partners, LLC to
Create Public Parking Spaces in the
Hayden Tract
City of Culver City
Official Courtesy Notification
ATTACHMENT 4
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