AMENDMENT TO DEVELOPMENT AND CONSTRUCTION CONTRACT
FOR PUBLIC IMPROVEMENTS
This Amendment to Development and Construction Cont ract For Public Improvements (this “ Amendment ”) is entered into as of September 1, 2025 (the “ Amendment Date ”), by and between the CITY OF CULVER CITY, a municipal corpor ation (the “ City ”), and CULVER PUBLIC MARKET, LLC, a Delaware limited liability company (the “ Developer ”). The City and the Developer shall sometimes be referred to herein individually as a “ Party ” and collectively as the “ Parties ”.
RECITALS
A. The City and the Developer entered into that certain Development and Construction Contract for Public Improvements, dated as of May 31, 2019 (the “ Original DCC ”), incorporated herein by this reference, pursuant to which the Developer was to construct a parking structure and related improvements upon real property owned by th e City. Capitalized terms not otherwise defined herein shall bear the respective meanings set forth therefor in the Original DCC.
B. The Successor Agency to the Culver City Redevelopme nt Agency, a public entity existing under the laws of the State of California and successor-in-interest to the former Culver City Redevelopment Agency (the “ Successor Agency ”), and the Developer entered into that certain Disposition and Development Agreement dated as of October 8, 2018 (the “ Original DDA ”), pursuant to which the Developer was to construc t a retail development partly upon real property owned by the Developer and partly upon real property owned by the City.
C. Pursuant to that certain Force Majeure Extension Ag reement dated July 8, 2022 (the “Original FM Extension Agreement ”), as amended by (i) that certain First Amendment to Force Majeure Extension Agreement, dated as of December 12, 2022 (the “First Amendment to FM Extension Agreement ”), (ii) that certain Second Amendment to Force Maj eure Extension Agreement, dated as of June 9, 2023 (the “Second Amendment to FM Extension Agreement ”), (iii) that certain Third Amendment to Force Majeure Extension Agreement, dated as of November 14, 2023 (the “ Third Amendment to FM Extension Agreement ”), (iv) that certain Fourth Amendment to Force Majeure Extension Agreement, dat ed as of June 20, 2024 (the “ Fourth Amendment to FM Extension Agreement ”), and (v) that certain Fifth Amendment to Force Majeure Extension Agreement, dated as of September 20, 2024 (the “ Fifth Amendment to FM Extension Agreement ”), the Successor Agency, the Developer, and the Ci ty extended certain timeframes for performance under the Original DDA a nd the Original DCC and otherwise modified certain limited aspects of the Original DD A and the Original DCC as more particularly set forth therein. The Original FM Extension Agreement, as amended by the First Amendment to FM Extension Agreement, the Second Amendment to FM Extension Agreement, the Third Amendment to FM Extension Agreement, the Fourth Ame ndment to FM Extension Agreement, and the Fifth Amendment to FM Extension Agreement s hall be referred to herein as the “ Joint FM Extension Agreement ”. Pursuant to that certain Sixth Amendment to For ce Majeure Extension Agreement, dated as of February 15, 2025 (the “ Sixth Amendment to FM Extension Agreement ”), that certain Seventh Amendment to Force Majeure Extension Agreement, dated as of March 21, 2025 (the “ Seventh Amendment to FM Extension Agreement ”), and that certain
2 Eighth Amendment to Force Majeure Extension Agreeme nt, dated as of May 27, 2025 (the “Eighth Amendment to FM Extension Agreement ”), the Developer and the City further extended certain timeframes for performance under the Original DCC as more particularly set forth therein. The Joint FM Extension Agreement, as amen ded by the Sixth Amendment to FM Extension Agreement, the Seventh Amendment to FM Ex tension Agreement, and the Eighth Amendment to FM Extension Agreement, shall be refer red to herein as the “ FM Extension Agreement ”. The Original DCC, as amended by the FM Extension Agreement, shall be referred to herein collectively as the “ Existing DCC ”. The Original DDA, as amended by the Joint FM Extension Agreement, shall be referred to herein collectively as the “ Extended DDA ”.
D. The Successor Agency and the Developer entered into that certain Amendment to Disposition and Development Agreement, dated as of February 15, 2025 (the “First Amendment to DDA ”) which, among other things, modified certain aspe cts of the Extended DDA including, without limitation, the scope of the Project and the time periods for the development of the Project.
The Extended DDA, as amended by the First Amendment to DDA, shall be referred to herein as the “ Updated DDA ”. Pursuant to that certain Force Majeure Extensio n Agreement, dated as of February 15, 2025 (the “ Original DDA FM Extension Agreement ”), as amended by that certain First Amendment to Force Majeure Extension Agreemen t, dated as of May 27, 2025 (the “ First Amendment to DDA FM Extension Agreement ”), the Successor Agency and the Developer extended certain timeframes for performance under t he Updated DDA. The Original DDA FM Extension Agreement, as amended by the First Amendm ent to DDA FM Extension Agreement, shall be referred to herein as the “ DDA FM Extension Agreement ”. The Updated DDA, as amended by the DDA FM Extension Agreement, shall be referred to herein as the “ DDA ”.
E. The City and the Developer desire to amend the Exis ting DCC such that the Developer’s rights and obligations under the Existing DCC as hereby amended shall be consistent with those applicable to the Project under the DDA including, without limitation, to address the scope and timing of the Developer’s obligations to construct the Public Parking Improvements, and such other matters as are set forth in this Amendment.
F. The Parties desire to enter into this Amendment upo n the terms and conditions set forth herein.
NOW THEREFORE , in consideration of the mutual obligations set fo rth herein, the Parties hereby covenant and agree as follows:
AGREEMENT
1. Recitals. The foregoing Recitals are true and corr ect and are a substantive part of this Amendment.
2. Definitions. The following terms shall have the meaning ascribed thereto in this Section 2 below. The below defined terms and any other defined terms set forth in this Amendment shall amend and supersede any corresponding defined terms set forth in the Existing DCC.
3 a. “Additional Contracts ” means any contracts for an amount greater than Fi ve Thousand and 00/100 Dollars ($5,000.00), in addition to the Construction Contract, entered into by the Developer after the Amendment Date pursuant to Section 2.1(d) of the Original DCC with additional consultants and /or contractors for the construction of the Public Parking Improvements, or any portion thereof. Each of the Additional Contracts shall be referred to herei n as an “Additional Contract”.
Notwithstanding anything to the contrary set forth in this Contract, the Additional Contracts shall expressly exclude the Existing Contracts. The Developer covenants and agrees that the Additional Contracts shall comp ly with all prevailing wage requirements applicable to the services being perfo rmed under California Labor Code Section 1720 et seq ., including, without limitation, complying with applicable requirements of California Senate Bill No. 854 signed into law on June 20, 2014.
b. “Condominium CC&Rs ” means that certain Declaration of Covenants, Conditions and Restrictions to be entered into between the City, as the owner of the Public Parking Improvements, the land on Site A-1 and the Site A-1 Public Parking Condominium, and the Developer, as the owner of the Site and the Site A-1 Retail Condominium, and the Common Elements. The Condomin ium CC&Rs are to be recorded against the Site and Site A-1 in the Offic ial Records. Exhibit D to the Original DCC is hereby deleted in its entirety.
c. “Contract ” shall mean the Existing DCC, as amended by this A mendment. From and after the Amendment Date, all references in the Existing DCC or this Amendment to the “Contract” shall mean and refer to the Existing DCC, as amended by this Amendment.
d. “Plans ” means any and all final construction, architectural, design, landscaping and grading plans, drawings and specifications prepared for the Project and the Public Parking Improvements and approved by the City pursu ant to this Amendment. At such time as the Plans are finalized, the Developer shall provide the City with notice thereof, accompanied by a complete list of the Plan s; thereafter, the Plans may be modified with respect to the Public Parking Improve ments as set forth in Section
2.6 of the Original DCC.
e. “Project Improvements ” means the buildings and other improvements to be constructed by the Developer on the Site and the Si te A-1 Retail Condominium as the Project pursuant to the DDA. For clarification purposes, the Project Improvements do not include the Public Parking Improvements.
f. “Public Parking Improvements ” means certain public parking improvements, to be located on Site A-1 and to be owned by the City, which Public Parking Improvements the Developer shall Develop and Cause Construction to Completion on Site A-1, in accordance with the approved Plans and this Contract. The Parties acknowledge that the Public Parking Improvements sh all expressly exclude any improvements constructed by the Developer upon or w ithin the Site A-1 Retail Condominium (if any).
4 g. “Public Parking Improvements Scope of Work ” means that work to be performed by the Developer in connection with the d esign, entitling and construction of the Public Parking Improvements tha t is set forth on Exhibit I attached hereto and incorporated herein by this reference. Exhibit I to the Original DCC is hereby deleted in its entirety.
h. “Schedule of Performance ” means that certain Schedule of Performance, attached to this Amendment as Exhibit K and incorporated her ein by this reference, setting forth the dates and/or time periods by which certai n obligations set forth in this Contract must be accomplished by the Parties. The Schedule of Performance is subject to revision from time to time as mutually a greed upon in writing between the Developer and the City Manager, and the City Ma nager is authorized to make such revisions as the City Manager deems reasonably necessary. Exhibit K to the Original DCC is hereby deleted in its entirety.
3. Plans, Budget, and Contract for Public Parking Improvements.
a. Plans for Public Parking Improvements. Notwithstanding anything to the contrary set forth in the Existing DCC, as of the Amendment Date, given that the Project Improvements and the Public Parking Improvements wi ll be materially different from those contemplated under the Original DDA and the Original DCC, the Developer has prepared and delivered to the City ne w or updated proposed architectural, design, landscaping, and grading pla ns and drawings for the Project and the Public Parking Improvements (collectively, the “ Preliminary Plans ”), and the City has approved the Preliminary Plans. The List of Plans attached as Exhibit G to the Original DCC is hereby deleted in its enti rety. Within the time period provided for in the Schedule of Performance, the Developer shall deliver to the City proposed construction drawings for the Project and the Public Parking Improvements based on the Preliminary Plans (the “ Construction Drawings ”) for the City’s review and approval, not to be unreasona bly withheld, conditioned, or delayed. The City shall approve or disapprove of t he proposed Construction Drawings within twenty (20) Business Days of the Developer’s delivery thereof to the City. To be valid, the City’s disapproval of a ny aspect of the proposed Construction Drawings shall set forth the specific reasons for such disapproval, and the City’s approval rights pursuant to this Section 3.a shall be limited to those aspects of the Construction Drawings that pertain s olely to the Public Parking Improvements. If the City fails to respond to the Developer’s request for approval of the proposed Construction Drawings within twenty (20) Business Days after receipt of said request from the Developer, then th e proposed Construction Drawings shall be deemed approved; provided, howeve r, that the Developer’s submission of such notice states in bold capitalize d letters in 14-point type on the cover page of such submittal that the “ THE CITY’S FAILURE TO RESPOND TO THIS DOCUMENT WITHIN TWENTY (20) BUSINESS DAYS S HALL BE DEEMED TO CONSTITUTE THE CITY’S APPROVAL REQUEST ED
IN THIS DOCUMENT PURSUANT TO THE DCC ”. If the City disapproves the proposed Construction Drawings, then the Develo per and the City shall
5 cooperate in good faith to agree upon changes to th e proposed Construction Drawings to make them acceptable to the City. Once approved by the City, such approved Construction Drawings shall be deemed the Plans.
b. Budget for Public Parking Improvements. Notwithsta nding anything to the contrary set forth in the Existing DCC, as of the A mendment Date, given that the Project Improvements and the Public Parking Improve ments will be materially different from those contemplated under the Original DDA and the Original DCC, the Developer will be required to prepare a new or updated proposed Public Parking Improvements Budget. The Public Parking Improvemen ts Budget attached as Exhibit H to the Original DCC is hereby deleted in its entirety. Within the time period provided in the Schedule of Performance, the Developer shall deliver to the City a proposed final Public Parking Improvements B udget for the City’s review and approval, not to be unreasonably withheld, conditioned, or delayed. The Public Parking Improvements Budget is expected to be an ex hibit to the proposed Construction Contract, which will segregate the con tracted amount for the Public Parking Improvements from the Project Improvements. The City shall approve or disapprove of a proposed Public Parking Improvement s Budget within ten (10) Business Days of the Developer’s delivery to the Ci ty of such proposed Public Parking Improvements Budget. To be valid, the City ’s disapproval of a proposed Public Parking Improvements Budget shall set forth the specific reasons for such disapproval. If the City fails to respond to the Developer’s request for approval of the Public Parking Improvements Budget within ten ( 10) Business Days after receipt of said request from the Developer, then th e proposed Public Parking Improvements Budget shall be deemed approved; provi ded, however, that the Developer’s submission of such notice states in bold capitalized letters in 14-point type on the cover page of such submittal that the “ THE CITY’S FAILURE TO RESPOND TO THIS DOCUMENT WITHIN TEN (10) BUSINESS D AYS SHALL BE DEEMED TO CONSTITUTE THE CITY’S APPROVAL
REQUESTED IN THIS DOCUMENT PURSUANT TO THE DCC ”. If the City disapproves the Public Parking Improvements Budget, then the Developer and the City shall cooperate in good faith to agree upo n changes to the Public Parking Improvements Budget to make it acceptable to the City.
c. Construction Contract for Public Parking Improvemen ts. As of the Amendment Date, the Construction Contract that the Developer entered into in connection with the execution and delivery of the Original DCC and the Original DDA has not been formally terminated, but it pertains to Public Park ing Improvements and Project Improvements that are materially different from the Public Parking Improvements and Project Improvements that the Developer intends to develop as contemplated under the Original DCC as modified by this Amendmen t. By executing this Amendment, the City acknowledges and agrees that (i ) the form of Construction Contract attached as Exhibit M to the Original DCC, and (ii) the Contractor identified therein (Ed Grush General Contractor, In c.), are both hereby approved by the City and meet and comply with all requiremen ts of this Contract and the City’s public bid process relating to the letting of such Construction Contract. For
6 the avoidance of doubt, the City acknowledges that the Construction Contract attached as Exhibit M to the Original DCC is not th e actual Construction Contract pursuant to which the Developer shall Develop and C ause Construction of the Public Parking Improvements, but that a Construction Contract in substantially the same form as that attached as Exhibit M to the Original DCC shall be acceptable to the City; provided, however, that nothing herein sh all limit the City’s rights to approve the Public Parking Improvements Budget purs uant to Section 3.b above.
In the event that the Developer retains a different Contractor from that approved by the City as referenced above, such Contractor shall meet the standards set forth in Section 407 of the Original DDA for construction of the Improvements thereunder.
In the event that the Construction Contract that the Developer proposes to enter into to Develop and Cause Construction of the Public Par king Improvements is materially different from the form of Construction Contract attached as Exhibit M to the Original DCC, such proposed Construction Con tract shall be subject to approval by the City in accordance with the procedu res and requirements set forth in Section 407 of the Original DDA. The City shall approve or disapprove of a proposed Construction Contract within ten (10) Busi ness Days of the Developer’s delivery to the City of such proposed Construction Contract. To be valid, the City’s disapproval of a proposed Construction Contract shall set forth the specific reasons for such disapproval, and furthermore, the City may only disapprove of the proposed Construction Contract if materially differ ent from the form of Construction Contract attached as Exhibit M to the Original DCC. If the City fails to respond to the Developer’s request for approval of the Construction Contract within ten (10) Business Days after receipt of said request from the Developer, then the proposed Construction Contract shall be deemed approved; provided, however, that the Developer’s submission of such notice stat es in bold capitalized letters in 14-point type on the cover page of such submittal t hat the “ THE CITY’S FAILURE TO RESPOND TO THIS DOCUMENT WITHIN TEN (10)
BUSINESS DAYS SHALL BE DEEMED TO CONSTITUTE THE CIT Y’S
APPROVAL REQUESTED IN THIS DOCUMENT PURSUANT TO THE
DCC ”. If the City disapproves the Construction Contract, then the Developer and the City shall cooperate in good faith to agree upo n changes to the Construction Contract to make it acceptable to the City. From a nd after the City’s approval or deemed approval of the new Construction Contract, a ll references in the Existing DCC or this Amendment to the “Construction Contract” shall mean and refer to the new Construction Contract.
4. Schedule of Performance. Exhibit K to the Original DCC (Schedule of Performance) is hereby deleted in its entirety and replaced with Exhibit K attached hereto. Notwithstanding any dates set forth in Exhibit K to the Original DC C or any extension of any such dates made pursuant to the FM Extension Agreement, the da tes for Developer's performance under the DCC including, without limitation, the da tes for submission of the proposed Construction Contract, and the dates for commencement and completion of construction of the Public Parking Improvements, shall be governed by Exhibit K attached to this Amendment. Due to significant prior Project delays ( i.e., the Original DCC deadline for substantial completion of the Public Parking Improvements was July 24, 2021), the Parties
7 hereby agree that neither Party shall hereinafter b e entitled to any further Force Majeure delay due to the COVID-19 pandemic, and provided further that, with respect to any Force Majeure delay occurring from and after the Amendmen t Date, the 18-month limitation on the cumulative length of such delay set forth in Section 10.18(b) of the Original DCC shall apply.
5. City Fee Waiver. Exhibit O to the Original DCC (Ca lculation of City Fee Waiver) is hereby deleted in its entirety. At such time as the Developer receives estimates of projected Permit and Impact Fees, the Developer shall notify the City of such fees and shall deliver to the City an updated chart of such Permit and Imp act fees to be included in the City Fee Waiver substantially in the form of Exhibit O attached to the Original DCC.
6. Update of Exhibits. Without limiting any other updates or modifications to the Exhibits to the Original DCC set forth in this Amendment above, Exhibit A, Exhibit B, Exhibit E, Exhibit F, Exhibit I, Exhibit J-1, Exhibit J-2, Exhibit K, and Exhibit Q to the Original DCC are hereby deleted in their entirety and replaced with the corresponding Exhibit A, Exhibit B, Exhibit E, Exhibit F, Exhibit I, Exhibit J-1, Ex hibit J-2, Exhibit K, and Exhibit Q attached to this Amendment.
7. Assignment of Construction Contract and Plans, Repo rts, and Data. Prior to the commencing construction of the Public Parking Improvements, the Developer shall deliver to the City fully executed Assignment of Constructi on Contract substantially in the form of Exhibit A attached hereto and a fully executed Assignment of Plans, Reports, and Data substantially in the form of Exhibit B attached her eto. Such Assignment of Construction Contract and Assignment of Plans, Reports, and Data shall entirely supersede and replace that Assignment of Construction Contract and Assign ment of Plans, Reports, and Data which the Developer delivered to the City pursuant to the Original DCC.
8. Potential Alternative to Condominium Plan . Notwithstanding that the City and the Developer contemplate that the Condominium Plan wil l be created pursuant to which the Site A-1 Retail Condominium and Site A-1 Public Par king Condominium will be created and be located upon the land constituting Site A-1, the Developer and the City agree to use good faith and commercially reasonable efforts, dur ing the construction of the Project Improvements, to negotiate (and if mutually accepta ble, to agree upon) an alternative to such Condominium Plan such as, by way of example, a lot line adjustment such that (i) the Project Improvements shall be located entirely on l and owned by the Developer, (ii) the Public Parking Improvements shall remain located up on Site A-1, and (iii) in lieu of the Condominium CC&Rs, the City and the Developer would enter into a reciprocal access agreement between Site A-1 and the property owned b y the Developer immediately adjacent to Site A-1 (referred to as “Site A-2” in the DDA).
9. Designated Representative. Section 10.22(a) of the Original DCC is hereby modified to replace Mr. John Nahas with Mr. Ray Kayacan as the designated representative for the Developer.
8 10. Notices. Section 9.0(a) of the Original DCC is her eby amended to provide that the applicable addresses for notices, demands, requests , elections, approvals, disapprovals, consents or other communications given under the Contract shall be as follows:
To City: City of Culver City
Attn: Ms. Elaine Gerety-Warner, Economic Develo pment Director 9770 Culver Boulevard
Culver City, California 90232-0507
Copy to: City of Culver City
Attn: Heather Baker, Esq., City Attorney
9770 Culver Boulevard
Culver City, California 90232-0507
Copy to: Kane, Ballmer & Berkman
Attn: Todd C. Mooney, Esq.
515 S. Figueroa Street, Suite 780
Los Angeles, California 90071
To Developer: Culver Public Market, LLC
c/o Regency Centers Corporation
915 Wilshire Boulevard, Suite 2200
Los Angeles, California 90017
Attn: Mr. Ray Kayacan
Copy to: Culver Public Market, LLC
c/o Regency Centers Corporation
One Independent Drive, Suite 114
Jacksonville, Florida 32202-5019
Attn: Legal Department
Copy to: Kennerly, Lamishaw & Rossi LLP
707 Wilshire Blvd., Suite 1400
Los Angeles, California 90017
Attn: Robert L. Madok, Esq.
11. Further Actions. The Parties shall take such actio ns and execute such documents as are reasonably necessary to effectuate the intent of this Amendment on behalf of the Parties.
12. Counterparts. This Amendment may be executed in co unterparts, each of which shall be deemed an original, but all of which shall constitute but one and the same instrument.
13. Effect of Amendment. Except as otherwise expressly provided herein, the terms and conditions of the Agreement shall remain unmodified and in full force and effect.
9 14. Conditional Effectiveness. Notwithstanding any oth er provision of this Amendment, this Amendment shall not take effect unless and until th at certain Amendment to Parking License Agreement, or alternatively, that certain A mended and Restated Parking License Agreement, either dated as of September 1, 2025, to reduce the number of Licensed Spaces (as defined therein), is entered into by and between the Parties.
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10 IN WITNESS WHEREOF, the Parties have executed this Amendment as of the date first set forth above.
“CITY ”
CITY OF CULVER CITY,
a municipal corporation
By: ____________________________________
John M. Nachbar
City Manager
APPROVED AS TO FORM AND CONTENT:
By: ________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
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11 “DEVELOPER ”
CULVER PUBLIC MARKET, LLC,
a Delaware limited liability company
By: Regency Centers, L.P.,
a Delaware limited partnership,
its Managing Member
By: Regency Centers Corporation,
a Florida corporation,
its General Partner
By: __________________________
Ray Kayacan
Vice President, Investments
Exhibit A
FORM OF ASSIGNMENT OF CONSTRUCTION CONTRACT
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Exhibit B
FORM OF ASSIGNMENT OF PLANS, REPORTS AND DATA
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Exhibit E
DISBURSEMENT PROCEDURES
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Exhibit F
EXISTING CONTRACTS
DRC Engineering, Inc.
Krazan & Associates, Inc.
Ed Grush General Contractor, Inc.
Architects Orange, LLP
Exhibit I
PUBLIC PARKING IMPROVEMENTS SCOPE OF WORK
In accordance with approved Plans, the Developer wi ll construct a two-level public parking structure that shall provide approximately 125 park ing spaces to serve the project and the local community, including, without limitation, improveme nts ancillary thereto such as, by way of example but not limitation, lighting, landscaping, and walkways.
Exhibit J-1
FORM OF RIDER – CONSTRUCTION CONTRACTS
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Exhibit J-2
FORM OF RIDER – CONSULTANT CONTRACTS
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Exhibit K
SCHEDULE OF PERFORMANCE
Task Deadline
1. Developer delivers to City proposed
Construction Drawings for City’s
review and approval
January 9, 2026
2. Developer delivers to City proposed
Public Parking Improvements Budget
for City’s review and approval
75 Days after Developer receives comments
and proposed revisions from City building
department on proposed Construction Drawings
3. Developer delivers to City proposed
Construction Contract for Public
Parking Improvements for City’s
review and approval
30 Days after date City approves Public Parking
Improvements Budget
4. Developer provides City with updated
proof of all insurance required by
Section 4.2.2 of Original D CC
Prior to Developer’s commencement of
construction of Public Parking Improvements
5. Developer commences construction of
Public Parking Improvements
Later of (i) 30 Days after building permit for
Public Parking Improvements ready to be
issued by City, or (ii) 10 Days after City’s
approval of Construction Contract
6. Developer substantially completes
construction of all Public Parking
Improvements
24 months after commencement of construction
of Public Parking Improvements
7. Developer and City record
Condominium CC&Rs against Site and
Site A -1 in Official Records
Within 30 days after Developer’s substantial
completion of construction of all Public Parking
Improvements
Exhibit Q
GUARANTY
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ASSIGNMENT OF CONSTRUCTION CONTRACT
For valuable consideration, the receipt and suffici ency of which are hereby acknowledged, CULVER PUBLIC MARKET, LLC, a Delaware limited liability company (the “Developer ”), as additional security for its obligations unde r that certain Development and Construction Contract for Public Improvements dated May 31, 2019 (as amended, the “ DCC ”), to which the Developer and the CITY OF CULVER CITY, a municipal corporation (the “ City ”), are parties, effective upon the Effective Date (as hereinafter defined), hereby assigns to the City all of the Developer’s rights, title and interest, but not its obligations, in, under and to a construction contract between the Developer and ED GRUSH GENERAL CONTRACTOR, INC., a California corporation (the “ Contractor ”) dated ______________________, 202__ upon the following terms and condition set forth he rein. “DCC” as used herein shall mean, refer to and include the DCC, as well as any riders, exhi bits, addenda, implementation agreements, amendments and attachments thereto or other documen ts expressly incorporated by reference in the DCC. Any capitalized term not herein defined s hall have the same meaning as set forth in the DCC. The DCC is hereby incorporated herein by this reference.
A. Pursuant to the DCC, the Developer intends to co nstruct certain Public Parking Improvements on that certain real property describe d in Attachment 1 attached hereto and incorporated herein by this reference (“ Site A-1”).
B. As a requirement of the DCC, the City has requir ed that the Developer execute and deliver this Assignment of Construction Contract (this “Assignment ”) to the City as security for the performance of the Developer’s obligations under the DCC. All of the terms and agreements contained in this Assignment shall be bi nding upon the Developer and the Developer’s successors and assigns.
NOW THEREFORE, the Developer hereby agrees, for its elf and its successors and assigns, as follows:
1. (a) The Developer agrees to obtain and deliver t o the City, concurrently with delivery of this Assignment, a Consent to Assignmen t of Construction Contract from the Contractor substantially in the form attached heret o as Attachment 2 and incorporated herein by this reference (the “ Consent ”).
(b) This Assignment and the Consent do not relieve the Developer of its obligations under the Construction Contract (as her einafter defined). The City does not hereby assume any of the Developer’s obligations or duties concerning any Construction Contract including, without limitation, any obligation to pay for the work done pursuant thereto.
2. Effective upon the date on which the City termin ates the DCC as a result of an Event of Default by the Developer thereunder and th e City elects pursuant to Section 2.11 of the DCC to take assignment of the Construction Contract (the “ Effective Date ”), the Developer hereby assigns, conveys and transfers to the City, all of the Developer’s rights, title, interest, privilege, benefit and remedies in, to and under the following:
(a) the construction contract and any other agreem ents with the Contractor listed in Attachment 3 attached hereto and incorpor ated herein by this reference (collectively, the “Construction Contract ”); and
(b) all other agreements now or hereafter entered into by the Developer with the Contractor in connection with construction of the Public Parking Improvements; and
(c) any and all present and future amendments, mod ifications, supplements, change orders and addenda to any of the items described in clauses (a) and (b) above.
A complete copy of each document listed on Attachm ent 3 shall be provided to the City concurrently with delivery of this Assignm ent. Each of the agreements described above in this Section 2 is referred to herein as an “Agreement ”.
3. Upon the City’s termination of the DCC as a resu lt of an Event of Default by the Developer thereunder and election to take assignmen t of the Construction Contract pursuant to Section 2.11 of the DCC, made, if at all, within ni nety (90) days following such termination, the City may, at its option and with no obligation, upon written notice to the Contractor, exercise any or all of the rights and remedies granted to the De veloper under the Construction Contract as if the City had been an original party to such Constru ction Contract. The City may elect to assume the obligations of the Developer under the Construc tion Contract by giving notice to that effect to the Developer and Contractor within ninety (90) days of the termination of the DCC pursuant to an Event of Default by the Developer; provided, however, that the City shall not be responsible for any default, liability, or obligati on of the Developer under the Construction Contract occurring prior to the time that the City gives such notice to the Contractor.
4. Intentionally Omitted.
5. The Developer hereby represents and warrants to the City that, except for any assignment as may be required by the construction l ender (if any) and/or the DDA, the Developer has not made any previous assignment of t he Construction Contract, and the Developer agrees not to assign, sell, pledge, trans fer or otherwise encumber its interest in the Construction Contract so long as this Assignment is in effect, except for any assignment, sale, pledge, transfer, mortgage, or other encumbrance th at is (i) subject and subordinate to the City’s rights under this Assignment, (ii) consented to by the City, such consent not to be reasonably withheld, conditioned, or delayed, or (iii) made in connection with a transfer that is otherwise permitted in the DCC.
6. If any provision of this Assignment shall be inv alid, illegal or unenforceable, then it shall not affect or impair the validity, legalit y and enforceability of the other provisions of thi s Assignment or of the DCC. This Assignment may not be amended, modified or changed, nor shall any waiver of any provision hereof be effecti ve, except by a written instrument signed by the party against whom enforcement of the waiver, a mendment, change, or modification is sought.
7. The Developer shall indemnify and hold harmless the City against any liabilities, claims, costs or expenses, including reasonable att orneys’ fees, accruing under the Construction Contract prior to the Effective Date. The Develope r shall be released from all liability under the Construction Contract from and after the Effective Date. The indemnities contained in this Section 7 shall not extend to any actions, suits, c laims, demands, liabilities, losses, damages, obligations, costs or expenses caused to the extent arising from the acts or omissions of the indemnified party.
8. This Assignment shall be binding upon the Develo per and the City, and their respective successors, legal representatives and as signs, and shall inure to the benefit of the City and the Developer, and their respective successors, legal representatives, and assigns.
9. Upon Completion of the Public Parking Improvemen ts in accordance with the DCC, this Assignment shall automatically terminate.
10. This Assignment shall be governed by and constr ued in accordance with the laws of the State of California.
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IN WITNESS WHEREOF , the Developer has caused this Assignment to be executed as of the date set forth below.
“DEVELOPER ”
CULVER PUBLIC MARKET, LLC,
a Delaware limited liability company
By: Regency Centers, L.P.,
a Delaware limited partnership,
its Managing Member
By: Regency Centers Corporation,
a Florida corporation,
its General Partner
Date: _________________ By: __________________ ______________ Ray Kayacan
Vice President, Investments
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“CITY ”
CITY OF CULVER CITY,
a municipal corporation
Date: _________________ By: ___________________ _________________ John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ____________________________________
Elaine Gerety-Warner
Economic Development Director
ATTEST:
By: ____________________________________
Jeremy Bocchino
City Clerk
APPROVED AS TO FORM:
By: ____________________________________
Heather Baker
City Attorney
By: ____________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
ATTACHMENT 1
LEGAL DESCRIPTION OF SITE A-1
That certain real property located in the City of C ulver City, County of Los Angeles, State of California, more particularly described as follows:
PARCEL 1 OF THAT CERTAIN PARCEL MAP NO. 74999 RECOR DED IN BOOK 402, PAGES 47-48 OF PARCEL MAPS OF LOS ANGELES COUNTY, CALIFORNIA.
ATTACHMENT 2
CONSENT TO ASSIGNMENT OF CONSTRUCTION CONTRACT
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CONSENT TO ASSIGNMENT OF CONSTRUCTION CONTRACT
The undersigned hereby consents to that certain Ass ignment of Construction Contract (the “Assignment ”) dated as of even date herewith, executed by CULV ER PUBLIC MARKET, LLC, a Delaware limited liability company (the “ Developer ”) for the benefit of the CITY OF CULVER CITY, a municipal corporation (the “ City ”), and in the event that the City elects to take assignment of the Construction Contract pursua nt to the terms of the Assignment, the undersigned agrees to perform pursuant to the terms and conditions of the undersigned’s Construction Contract and/or Agreement with the Dev eloper described in Attachment 3 attached to the Assignment. If requested by the City in the exercise of its rights under the Assignment, the undersigned shall continue to perform its oblig ations under its Construction Contract and/or Agreement for which the undersigned shall be compen sated in accordance with such document.
The undersigned agrees that, upon request by the Ci ty, the undersigned shall provide a complete list of all of its subcontractors in connection wit h work for or on Site A-1 done or to be done pursuant to the DCC and shall cooperate to provide and permit access to the City or its agents for inspection of Site A-1 and the work in process. Th e undersigned also agrees that, in the event of a breach by the Developer of any of the terms and c onditions of said Construction Contract and/or Agreement which is not cured by the Develope r within the applicable notice and cure periods set forth in the Construction Contract, the undersigned will give prompt written notice of such breach to the City at the City’s address set f orth below. The City shall have 60 calendar days from the receipt of such notice of default to remedy or cure said default; provided, however, that neither the Assignment nor this Consent shall require the City to cure said default, but the City shall, in its sole discretion, have the option to do so but without the obligation therefor. The undersigned acknowledges that the City is relying o n this Consent and the assurances herein in approving the DCC and that this Consent shall also be for the benefit of and bind any assignee or successors of the City and the undersigned. All ca pitalized terms used in this Consent shall have the same meaning as in the Assignment. The Constru ction Contract and/or Agreement between the Developer and the undersigned is in full force and effect as of the date hereof.
Dated as of ___________________, 202__ ED GRUSH GEN ERAL CONTRACTOR, INC., a California corporation
By: _______________________________
Name: ____________________________
Title: _____________________________
Contractor’s Address:
Ed Grush General Contractor, Inc.
3236 East Willow Street
Signal Hill, CA 90755
Attn: David Karian & Bob Grush
City’s Address: CITY OF CULVER CITY
9770 Culver Boulevard
Culver City, California 90232-0507
Attn: Economic Development Director
ATTACHMENT 3
LIST OF CONSTRUCTION CONTRACTS
1. Lump Sum Contract for Construction of Culver Public Market between Culver Public Market, LLC, a Delaware limited liability company and Ed Grush General Contractor Inc., a California corporation dated ______________________, 202__
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ASSIGNMENT OF PLANS, REPORTS, AGREEMENTS, AND DATA
FOR VALUE RECEIVED,
the receipt and sufficiency of which are hereby
acknowledged, CULVER PUBLIC MARKET, LLC, a Delaware limited liability company (the “Developer ”), effective upon the Effective Date (as hereinaft er defined), does hereby, pursuant to this Assignment of Plans, Reports, Agreements, a nd Data (this “ Assignment ”), to the extent assignable, assign, pledge, transfer and set over t o the CITY OF CULVER CITY, a municipal corporation (the “ City ”), all of its rights, title and interest in and to the following (collectively, the “Plans, Reports, Agreements, and Data ”): any and all plans, drawings, studies, reports and related documents concerning that certain real prop erty described in Attachment 1 attached hereto and incorporated herein by this reference (“ Site A-1 ”), and all amendments, modifications, supplements, general conditions and addenda thereto, including, without limitation, Environmental Reports (as hereinafter d efined), all architectural and engineering plans, any architect’s agreement entered into herea fter (the “ Architect’s Agreement ”) by and between the Developer and any architect engaged to perform services with respect to Site A-1 (the “ Architect ”) and those certain plans and specifications refer red to therein, and all amendments, modifications, supplements, general con ditions and addenda thereto (collectively, the “ Architectural Plans ”) prepared by the Architect for the account of the Developer in connection with the development of certain real property located on Site A-1. Effective upon the Effective Date, the Plans, Reports, Agreements, and Data, including, without limitation, the Architect’s Agreement and the Architectural Plans, are hereby assigned as consideration for the City’s execution of that certain Development and Co nstruction Contract for Public Improvements dated May 31, 2019 (the “ DCC ”), and entered into by and between the Developer and the City. “DCC” as used herein shall mean, refer to and include the DCC, as well as any riders, exhibits, addenda, implementation ag reements, amendments and attachments thereto or other documents expressly incorporated b y reference in the DCC. Any capitalized term not herein defined shall have the same meaning as set forth in the DCC. The DCC is hereby incorporated herein by this reference. For purposes hereof, “ Environmental Reports ” means any “Phase I” and/or “Phase II” investigation s of the Property, and all final reports and test results (not including drafts) provided by the Developer’s environmental consultant.
The “ Effective Date ” shall be the date on which the City terminates th e DCC as a result of an Event of Default by the Developer thereunder and elects, pursuant to Section 10.17 of the DCC, to take assignment of the Plans, Reports, and Data. Effective upon the Effective Date, the City shall have the right, but not the obligation, at any time to take such action as the City may at any time or from time to time determine to be neces sary or desirable in order to cure any default by the Developer under the Architect’s Agreement, i ncluding, without limitation, the protection of the Developer’s rights with respect to the Archi tectural Plans or to protect the rights of the Developer thereunder. The Developer shall indemnif y and hold harmless the City against any liabilities, claims, costs or expenses, including r easonable attorneys’ fees, accruing under the Architect’s Agreements prior to the Effective Date. The Developer shall be released from all liability under the Architect’s Agreements from and after the Effective Date. The indemnities contained in this paragraph shall not extend to any actions, suits, claims, demands, liabilities, losses, damages, obligations, costs or expenses cau sed to the extent arising from the acts or omissions of the indemnified party. The Developer agrees to have each Architect engaged to perform services in connection with Site A-1 execute a Consent in the form attached hereto.
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Upon the Effective Date, the City may exercise its rights hereunder and take possession of and title to the Plans, Reports, Agreements, and Data. The Developer shall deliver possession of and title to the Plans, Reports, Agreements, and Data to the City promptly upon the City’s written request. The City hereby acknowledges and agrees that any Plans, Reports, Agreements, and Data which are assigned to the City (or its successors or assigns) pursuant to this Assignment shall be strictly on an “as is, with all faults” ba sis, and the City hereby acknowledges and agrees that the Developer shall not be deemed to have made any representation or warranty whatsoever as to the quality, accuracy, utility, or compliance with law of the Plans, Reports, Agreements, and Data, and the City (and its successors and assi gns) shall utilize and/or rely on any of the Plans, Reports, Agreements, and Data at its sole risk.
The Developer and the Architect, by executing the Consent to this Assignment, agree that the City does not assume any of the Developer’s obl igations or duties concerning the Architect’s Agreement and the Architectural Plans, including, w ithout limitation, the obligation to pay for the preparation of the Architect’s Agreement and th e Architectural Plans, until and unless the Effective Date has occurred.
The Developer hereby represents and warrants to th e City that, except for any assignment as may be required by the construction lender (if a ny) and/or the DDA, no previous assignment of its interest in the Plans, Reports, Agreements, and Data, including, without limitation, the Architect’s Agreement and the Architectural Plans, has been made, and the Developer agrees not to assign, sell, pledge, transfer, mortgage or otherwise encumber its interest in the Plans, Reports, Agreements, and Data, including, without limitation , the Architect’s Agreement and the Architectural Plans, so long as this Assignment is in effect, except for any assignment, sale, pledge, transfer, mortgage, or other encumbrance th at is (i) subject and subordinate to the City’s rights under this Assignment, (ii) consented to by the City, such consent not to be reasonably withheld, conditioned, or delayed, or (iii) made in connection with a transfer that is permitted pursuant to the DCC.
Upon Completion of the Public Parking Improvements in accordance with the DCC, this Assignment shall automatically terminate.
This Assignment shall be binding upon and inure to the benefit of the heirs, legal representatives, assigns, or successors in interest of the Developer and the City.
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IN WITNESS WHEREOF, the Developer has caused this Assignment to be executed as of the date set forth below.
“DEVELOPER”
CULVER PUBLIC MARKET, LLC,
a Delaware limited liability company
By: Regency Centers, L.P.,
a Delaware limited partnership,
its Managing Member
By: Regency Centers Corporation,
a Florida corporation,
its General Partner
Date: _________________ By: __________________ ______________ Name: Ray Kayacan
Vice President, Investments
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CONSENT
The undersigned has prepared or will prepare the Architectural Plans and hereby consents to the above Assignment. The undersigned also agre es that in the event of a breach by the Developer of any of the terms and conditions of the Architect’s Agreement or any other agreement entered into with the undersigned in conn ection with the Architectural Plans, the undersigned shall give written notice to the City o f such breach. The City shall have 60 calendar days from the receipt of such notice of default to remedy or cure said default; however, nothing herein shall require or obligate the City to cure said default, but only gives it the option to do so.
The undersigned also agrees that in the event of de fault by the Developer under any of the documents or instruments entered into in connec tion with said Architect’s Agreement, the undersigned, at the City’s request, shall continue performance under the Architect’s Agreement in accordance with the terms hereof, provided that the undersigned shall be reimbursed in accordance with the Architect’s Agreement for all services rendered on the City’s behalf.
Dated:
ARCHITECT:
ARCHITECTS ORANGE, LLP,
a California limited liability partnership
By:
Name:
Title:
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ATTACHMENT 1
LEGAL DESCRIPTION OF SITE A-1
That certain real property located in the City of C ulver City, County of Los Angeles, State of California, more particularly described as follows:
PARCEL 1 OF THAT CERTAIN PARCEL MAP NO. 74999 RECOR DED IN BOOK 402, PAGES 47-48 OF PARCEL MAPS OF LOS ANGELES COUNTY, CALIFORNIA.
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DISBURSEMENT PROCEDURES
1. Defined Terms. As used herein, capitalized terms s hall have the meanings set forth in the Development and Construction Contract for Public Improvements (the “ DCC ”) to which these Disbursement Procedures are attached as Exhibit E, all attachments and exhibits to the DCC (which are hereby incorporated herein by th is reference), and any amendments or modifications which may be entered into in accordance therewith (collectively, the “ Contract ”).
2. Deposit and Use of City Funds; Post-Closing Funding Account.
a. City Funds.
(1) Prior to the date of the Amendment to which this Ex hibit E is attached, the City deposited the City Funds into an account opened by the City (the “ Post- Closing Funding Account ”) to be held at a mutually acceptable escrow compa ny (the “ Post- Closing Funding Account Holder ”) in an amount equal to the total Maximum Public P arking Improvements Contribution for the Public Parking Im provements as set forth in the Contract, which amount represents the City’s maximum amount t o be contributed to the projected Public Parking Improvements Costs. The Public Parking Imp rovements Costs, including, without limitation, all such costs incurred pursuant to the terms of the approved Construction Contract and Additional Contracts, up to but not exceeding t he Maximum Public Parking Improvements Contribution, shall be paid by the City in accordan ce with and subject to the terms and conditions of the Contract and these Disbursement P rocedures. The City shall be responsible, at its sole cost and expense, for any and all costs as sociated with the Post-Closing Funding Account, and such costs shall not be included in or applied toward the Maximum Public Parking Improvements Contribution.
(2) As interest has accrued or hereafter accrues on the City Funds deposited in the Post-Closing Funding Account, such interest shall be and remain the sole property of the City and shall be disbursed to the City from time to time. The principal of the City Funds and any accrued interest thereon held in the Post-Closing Funding Account shall not be pledged to any lender, contractor, consultant, o r other third party, the Developer, or any Developer contractor or consultant, and the princip al of the City Funds and any accrued interest thereon held in the Post-Closing Funding Account sh all not constitute security for any loan or other obligation of the City. Prior to disbursemen t of any City Funds pursuant to and in accordance with the terms of the Contract and these Disbursement Procedures, the principal of the City Funds and any accrued interest thereon hel d in the Post-Closing Funding Account shall be owned by the City, in accordance with the rights of the City as provided in the Contract and these Disbursement Procedures.
(3) The Developer hereby acknowledges and agrees that n either the Developer nor the Contractor, other Developer contr actors or consultants, or any third party has any lien on or security interest in, or right of se toff in respect of, the City Funds deposited and held in the Post-Closing Funding Account, including any accrued interest thereon, for the payment of fees and expenses or for any other purpo se whatsoever. Except for the City’s rights to closure of the Post-Closing Funding Account and receipt of all remaining City Funds held in
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the Post-Closing Funding Account including accrued interest, as discussed below, nothing in the foregoing shall otherwise allow the City to withdra w the City Funds from the Post-Closing Funding Account or to alter these Disbursement Proc edures without the written consent of both the City and the Developer.
b. Monthly Disbursements.
(1) The City Funds, together with any accrued interest thereon which has not been released to the City and has been curr ently budgeted and appropriated by the City for use toward the City’s share of the Public Parki ng Improvements Costs, shall be held and applied to pay for the City’s share of the Public P arking Improvements Costs in accordance with the terms of the Contract and these Disbursement Procedures.
(2) Monthly payments from the Post-Closing Funding Acco unt will be made to the Developer in accordance with the Contract and these Disbursement Procedures. The City shall maintain and keep accurate records regar ding amounts on deposit in the Post-Closing Funding Account, including any and all interest ear ned thereon, and shall provide the Developer with monthly statements of the Post-Closing Funding Account, including all interest earned thereon.
(3) The Developer shall have the right, upon not less t han five (5) Business Days’ advance written notice, to inspect t he City’s books and records relating to the amounts deposited into and disbursed from the Post- Closing Funding Account and the uses of such funds.
3. Conditions Precedent to Disbursement of City Funds. All disbursements of City Funds to the Developer shall be used by the Develop er for reimbursement of the Public Parking Improvements Costs incurred and/or paid by the Deve loper, including payment to third-party contractors, subcontractors or creditors of the Pub lic Parking Improvements, as the case may be, upon the City’s approval of the Payment Request (as defined below) and the amount of the payment in accordance with these Disbursement Proce dures. Disbursement of any City Funds hereunder shall be subject to the satisfaction of all of the following conditions precedent:
a. The Construction Contract shall have been delivered to the City in its final executed form;
b. The Assignment of Construction Contract and the Ass ignment of Plans, Reports and Data each shall have been signed by the Developer and consented to by the Contractor or architect, respectively, and with res pect to any request by the Developer for payment of any amounts incurred under any Additiona l Contract, the City shall have the right to withhold authorization of such payment until the co ntractor under the subject Additional Contract shall have also consented to an assignment of its contract in the same general form as the Assignment of Construction Contract;
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c. Any Additional Contract under which the Developer i s requesting payment from the Post-Closing Funding Account shall have been delivered to the City in its final executed form;
d. The Developer shall have obtained from the Contract or a written estimate, based upon the Contractor’s good faith judgment, of what portion of the total maximum Construction Contract price is allocable to the per formance of the Public Parking Improvements Scope of Work, and what portion thereof of the tota l maximum Construction Contract price is attributable to the Off-Site Improvement Costs, and shall have delivered evidence of such allocation to the City. The “ Public Parking Improvements Cost Percentage ” shall be that fraction, expressed as a percentage, (i) the numera tor of which shall be the amount allocated to the performance of the Public Parking Improvements Scope of Work as set forth in the immediately preceding sentence and (ii) the denomin ator of which shall be the total maximum price payable under the Construction Contract (incl uding the construction of both the Public Parking Improvements and the Project Improvements), less the Off-Site Improvement Costs. For example purposes only, if the total maximum amount set forth in the Construction Contract for the construction of the Public Parking Improvements and the Project Improvements, minus the Off-Site Improvement Costs, were Twenty Million and 00/100 Dollars ($20,000,000.00), and the amount allocated pursuant to the foregoing to the P ublic Parking Improvements was Nine Million and 00/100 Dollars ($9,000,000.00), then th e Public Parking Improvements Cost Percentage would be forty-five percent (45%); and
e. The Developer shall not be in default under the Con tract beyond any applicable notice and/or cure period(s).
4. Disbursements. Upon satisfaction of all conditions precedent as set forth in Section 3 above, the City shall disburse City Funds in the Post-Closing Funding Account once per month for application in accordance with the Pu blic Parking Improvements Budget. The amount disbursed from the Post-Closing Funding Acco unt in response to a Payment Request shall be in accordance with the provisions of Secti on 5 below. The City shall reasonably determine whether or not the conditions precedent t o its obligation to disburse (or consent to disbursement of) City Funds have been satisfied.
5. Documentation of Amounts to be Disbursed for Costs of Public Parking Improvements. Disbursements of City Funds for the payment of the City’s share of the Public Parking Improvements Costs shall be conditioned upo n submission to the City of a written itemized statement or payment request substantially in the form described in this Section 5 (each, a “ Payment Request ”). The Developer shall submit and deliver a copy of each Payment Request to the City. Each Payment Request shall consist of at least all of the following:
a. A cover letter signed by the Developer and dated as of the date of the Payment Request. The letter must include the perio d covered by the Payment Request, the amount of the Payment Request, the description of w ork performed, material supplied and/or costs incurred or due for which disbursement is req uested. The Developer shall pre-approve all third-party invoices submitted to the City for paym ent, before submittal to the City. The Developer shall include as separate line items on e ach monthly Payment Request the specific
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amounts due and payable for construction of the Pub lic Parking Improvements consistent with the specificity required for such costs by these Di sbursement Procedures, including references to the applicable line item(s) on the Public Parking I mprovements Budget. Each Payment Request shall be sequentially numbered.
b. A spreadsheet including line items conforming to th e Public Parking Improvements Budget. The spreadsheet must set fort h the amounts of all disbursements of City Funds, including the current Payment Request, and must show the remaining City Fund balances.
c. A summary invoice for the total amount requested, w ith the amount of each backup invoice shown on the summary as a separate line item. Consultant fees, if any, must be shown as a separate line item.
d. Backup invoices or such other appropriate documenta tion reasonably acceptable to the City including, without limitatio n, approved change order(s), to evidence, document, justify and support each line item in the summary invoice, with each backup item approved in writing by the Developer.
e. Conditional and unconditional lien releases as requ ired by the City and such other additional backup documentation and info rmation as may be reasonably required by the City in order to determine the appropriateness of the specific costs for which payment is requested ( e.g., vouchers, invoices, and architect’s inspector’s an d/or engineer’s periodic certifications of the percentage and/or stage of construction that has been completed).
6. Approval of Payment Requests; Disbursement of Funds.
a. Each Payment Request shall be subject to the review and reasonable approval of the City, which approval shall be limit ed to the City’s confirming that the Payment Request is consistent with and meets all applicable requirements of the terms and conditions of the Contract and these Disbursement Procedures. An y City Funds so disbursed from the Post- Closing Funding Account shall only be expended by t he Developer for the City’s share of the Public Parking Improvements Costs as set forth in t he approved Public Parking Improvements Budget. A Payment Request shall be submitted not m ore frequently than once monthly.
Notwithstanding the foregoing, disbursements of City Funds shall not be withheld or delayed due to nonmaterial errors or omissions in the form or c ontent of a Payment Request. The Developer shall be diligent in its efforts to respond to all requests by the City for supplemental or corrective measures.
b. Any disbursements from the Post-Closing Funding Acc ount shall require only written instructions or authorization from the City.
c. Subject to Section 6.d below, within ten (10) Busin ess Days following the receipt of any Payment Request, subject to the term s and conditions of the Contract and these Disbursement Procedures, the City shall pay (or sha ll instruct in writing the Post-Closing Funding Account Holder to pay) to the Developer (or such third party(ies) as may be requested by the Developer), the amount equal to the Public P arking Improvements Costs incurred by the
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Developer as set forth in the subject Payment Reque st (the “ Public Parking Improvements Payment Amount ”), less a retention of ten percent (10%) (the “ Retention ”) of the Public Parking Improvements Payment Amount. The Retention shall be released by the Post-Closing Funding Account Holder to the Developer for payment to the Contractor or other applicable Developer contractors upon Completion of the Public Parking Improvements, or sooner as may be required by applicable law or these Disbursement Procedures, and consistent with the provisions of the Construction Contract and any Additional Contracts.
d. If the City does not approve all or a portion of th e Public Parking Improvements Payment Amount, then the City shall pr ovide written Notice to the Developer within ten (10) Business Days of receipt of a Payme nt Request setting forth in specific detail the amount at issue and the reason(s) for such disappro val period. If the City does not object within that ten (10) Business Day period, then the City sh all proceed with disbursement of the Payment Request and shall promptly instruct the Post-Closin g Funding Account Holder to disburse the subject Public Parking Improvements Payment Amount to the Developer, less any applicable Retention. If the City timely objects to a Payment Request, then the City shall proceed to promptly instruct the Post-Closing Funding Account Holder to disburse to the Developer the amounts set forth in the Payment Request (less the applicable Retention), if any, that are not contested by the City pursuant to this Section 6.d. If any portion of the Public Parking Improvements Payment Amount is disputed by the City pursuant to this Section 6.d, then the Parties shall promptly meet and discuss in good fai th the disputed matter and reasonably attempt in good faith to resolve any difference in position with respect thereto, and, in that event, each of the Parties shall make itself available for such me eting(s) and reasonably negotiate in good faith to resolve any difference between the Parties. In the event that the Parties are not able to resolve any differences pursuant to the foregoing within thirty (30) Days of either Party’s request to meet and confer on the subject disputed matter, either P arty shall have the right to pursue such remedies as are available under the Contract, at la w, or in equity including, without limitation, seeking declaratory relief from a court of competent jurisdiction.
e. Upon Completion of the Public Parking Improvements, or sooner as may be required by applicable law or the provisions of the Contract or these Disbursement Procedures, the City shall pay or promptly instruct the Post-Closing Funding Account Holder to pay the Retention to the Developer.
7. Termination of Post-Closing Funding Account. Upon the Developer’s receipt of written notice from the City notifying the Develope r of the occurrence of any of the following events: (i) a termination of the Contract by eithe r of the Parties; (ii) the Successor Agency’s successful exercise of the right of reverter revest ing title to the Site in the Successor Agency pursuant to the DDA; (iii) Completion of the Public Parking Improvements and payment in full of all costs of the Public Parking Improvements and other amounts (if any) due and payable by the City under the Contract; or (iv) the Developer’ s written agreement with the City to close the Post-Closing Funding Account and disburse all remai ning funds therein to the City, the Post- Closing Funding Account shall be closed and, except for any amount owing by the City to the Developer for work performed and/or events occurring prior to the date of any of the occurrences set forth in the immediately preceding clauses (i) through (iv), any and all City Funds remaining in the Post-Closing Funding Account (including prin cipal and accrued interest thereon, if any)
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shall be promptly disbursed to the City, and all such funds shall be retained by the City as its sole and separate property.
8. Reservation of Rights. Nothing contained herein sh all be construed as restricting, limiting, amending or modifying the rights of the P arties in the Contract. In the event of a conflict between the terms of these Disbursement Pr ocedures and the terms of the Contract, the terms of these Disbursement Procedures shall control.
City Contract Requirements (Public Parking) 1
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RIDER TO CONTRACT
This Rider to Contract (this “ Rider ”) is attached to and incorporated in that certain ____________________ (the “ Agreement ”) dated ______________________, 20____, by and between CULVER PUBLIC MARKET, LLC, a Delaware limit ed liability company (the “Developer ”) and _______________________________, a Californi a corporation (the “Contractor ”). This Rider shall form an integral part of the Agreement, and the provisions set forth below shall be controlling notwithstanding anything to the contrary in the Agreement. Wherever possible, the provisions of this Rider and the Agreement shall be construed consistently so that each is given application to the fullest extent possible consistent with its intent. All defined terms used in this Rider and not otherwise defined herein, shall have the meaning prescribed for such term in the Agreement.
1. The Contractor hereby agrees that, with respect to the work and/or services to be performed by the Contractor for the proposed public parking improvements (and not for any portion of the private project improvements) under the Agre ement (such work and/or services shall hereinafter be referred to as the “ Public Improvements Services ”), the City of Culver City, a municipal corporation (the “ City ”), shall be an express third party beneficiary of the Agreement, including, without limitation, a third party benefi ciary of all guaranties, warranties, indemnitees, defend and hold harmless provisions and remedies provided to the Developer pursuant to the terms of the Agreement with the same right and authority to enforce the same either concurrently with or separate from the Developer. Loss, waiver or other limitation on such rights as to the Developer shall not affect or impact the City’s rights under those provisions, nor shall any such loss, waiver or other limitation on such rights as to the City affe ct or impact the Developer’s rights under such provisions, and each of the Developer and the City shall have the right to separately and independently exercise such rights as their interes ts may appear. Nothing herein shall limit the Contractor’s right to require the Developer’s timely performance of any duties or obligations of the Developer in accordance with the terms of the Agreement. Nothing in this Section 1 shall modify the provisions of the Agreement requiring and/or providing for the Contractor to take direction from or obtain the approvals of the Developer, and the Contractor shall rely and act upon such directions and approvals from the Developer in accordance with the provisions of the Agreement.
2. Without limiting Section 1 above, the Contractor specifically acknowledges that, with respect to the Public Improvements Services, the City shall be an express third party beneficiary of the indemnities by the Contractor of the Developer set forth in the Agreement. The Contractor further acknowledges and agrees that the Contractor’s indemnity obligations under those provisions to the City are not limited by the insurance coverages that the Contractor is required to maintain and if, for any reason such insurance coverages are ins ufficient to cover all obligations under those indemnity provisions, the Contractor shall neverthe less remain responsible to perform those indemnity obligations in full. The Contractor further acknowledges and agrees that the Contractor’s indemnity obligations under those provisions shall survive termination of the Agreement.
3. The City shall also be named as an additional insur ed in an endorsement to the insurance policies required by the Agreement. The Contractor shall furnish the City with evidence that such insurance has been obtained upon execution of this Rider by the Contractor, the Developer and the City.
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4. The Contractor acknowledges that it is acting as an independent contractor in performing its obligations under the Agreement and that, notwithstanding anything in the Agreement, the Contractor shall in no event be considered an agent or employee of the City, and in no event shall the Contractor or any of its employe es have any right to participate in any pension plan, insurance, bonus, worker’s compensation or si milar benefits the City provides for its employees. The Contractor shall be responsible to pay and hold the City harmless from any and all payroll and other taxes and interest thereon and penalties therefor which may become due as a result of any obligations, services or other matters performed by the Contractor or its agents or employees pursuant to the Agreement.
5. The City neither undertakes nor assumes nor will it have any responsibility or duty to the Contractor or to any employee or agent of the C ontractor to review, inspect, supervise, pass judgment upon or inform the Contractor or any such third party of any matter in connection with the design, development or construction of the public parking improvements, whether regarding (i) the quality, adequacy or suitability of the plans, whet her or not approved by the City, (ii) any labor, service, equipment or material furnished to or used in connection with the Public Improvements Services, (iii) any person furnishing the same or ( iv) other like matters. The Contractor and all employees and agents of the Contractor shall rely upon their own judgment regarding such matters, and any review, inspection, supervision, exercise o f judgment or information supplied to the Contractor or to any such third party by the City i n connection with such matters is for the public purpose of redeveloping the site, and neither the C ontractor nor any third party is entitled to rely thereon. Nothing contained in this Rider shall abrogate, supersede or nullify any right the Developer has to approve documents produced by the Contractor as set forth in the Agreement.
6. Any notices to the City pursuant to the Agreement shall be delivered to the City in the manner provided in the Agreement at the address set forth below. For purposes of this Section 6, a general business day on which the Culver City City Hall is closed shall not constitute a business day:
To City: City of Culver City
Attn: Ms. Elaine Gerety-Warner, Economic Developer Director 9770 Culver Boulevard
Culver City, CA 90232-0507
With a Copy to: City of Culver City
Attn: Heather Baker, Esq., City Attorney
9770 Culver Boulevard
Culver City, CA 90232-0507
With a Copy to: Kane, Ballmer & Berkman, City Speci al Counsel Attn: Todd C. Mooney, Esq.
515 South Figueroa Street, Suite 780
Los Angeles, CA 90071
7. For the benefit of the City as well as the Developer, the Contractor shall comply with all applicable laws, ordinances, rules, regulations and requirements governing the public parking improvements, including, without limitation, curren t California state laws regarding water consumption and stormwater and waste water retention and discharge. The Contractor shall also, at
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its expense, procure and maintain all permits, licenses and certificates which may be required at any time in connection with the performance of any work or services performed by or through the Contractor pursuant to the Agreement, including, wi thout limitation, a Culver City business tax certificate. Without limitation of the foregoing, the Contractor specifically acknowledges and agrees that it shall be responsible for complying with all prevailing wage requirements applicable to the Contractor’s services under California Labor Code S ection 1720 et seq ., including any work performed by employees, agents or contractors of th e Contractor pursuant to the Agreement, and including, without limitation, complying with applicable requirements of California Senate Bill No. 854 signed into law on June 20, 2014.
8. To the extent that applicable Public Improvements Services have been paid for under the Agreement, the Contractor specifically acknowledges and agrees that with respect to the work performed, gathered and prepared by the Contractor or caused to be performed, gathered and prepared by the Contractor in the Contractor’s performance of the Public Improvements Services, if any, the City shall also have the right to exercise and enjoy the benefits of the irrevocable, nonexclusive license described therein, including the right to copy, retain and use all computations, plans, drawings, studies, specifications, design documents and any other instruments, data, computer media and materials gathered or prepared by the Contractor or caused to be gathered or prepared by the Contractor in the Contractor’s performance of the Public Improvements Services, if any, at no further cost to the City, and without cost, expense or obligation to the Contractor, the Developer or any third party, and whether or not the Agreement i s terminated for any reason, and whether the public parking improvements are developed or not. All such work product shall be transmitted or caused to be transmitted to the City by the Contractor within ten (10) calendar days after a written request therefor is made by the City. The City sha ll also have the right to exercise and enjoy the benefits of such an irrevocable, nonexclusive license, including the right to copy, retain and use all such design or other work product produced by any t hird party contractor whose services are retained by the Contractor for the public parking i mprovements, and the Contractor shall deliver such work product to the City within the timeframe described in this Section 8 when the City provides the Contractor a written request for such work product. All written documents that are intended for public review shall be provided to the City by the Contractor in a format suitable for posting on the Internet. Any reuse of such drawings, specifications and other documents by the City for a purpose other than for the public parking imp rovements, or any portion thereof, without the written agreement of the Contractor shall be at the City’s risk and expense, and without any liability or exposure to the Contractor; and the City shall indemnify and hold harmless the Contractor from any and all third party claims, damages, losses and expenses arising out of or resulting therefrom.
9. In maintaining its records of Public Improvements S ervices and reimbursable expenses, the Contractor shall maintain sufficientl y detailed records of the Public Improvements Services performed by or on behalf of the Contractor and resulting work that are attributable to the public parking improvements so that the calculations and resulting costs and expenses attributable to the portion of the Contractor’s Public Improvements Services shall be separately identified and distinguished from the remaining scope of work perf ormed by or on behalf of the Contractor pursuant to the Agreement.
10. The Contractor acknowledges and agrees that by virtue of its execution and delivery of this Rider the Contractor shall have no rights or remedies against the City for any payments due by the Developer to the Contractor under the Agreem ent or for the performance of any of the
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Developer’s obligations under the Agreement, and th e City’s execution of this Rider shall not be construed or interpreted in any way as the City’s a greement or consent to be subject to the Developer’s obligations under the Agreement or to b e a guarantor for the performance of the Developer’s obligations under the Agreement. Except as expressly provided in the last sentence of Section 8 above, the City shall have no liability w hatsoever to the Contractor due to the City’s execution of this Rider or otherwise.
11. In connection with performance and implementation of the Agreement, the Contractor agrees that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure o r enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, less ees, subtenants, sublessees or vendees of the premises. Without limitation of the foregoing, the Contractor further certifies and agrees that all persons employed or applying for employment by it and all of its subcontractors, sub-consultants, bidders and vendors, are and will be treated equally by it without regard to, or because of race, color, religion, ancestry, national origin, sex, age, sexu al orientation, pregnancy, childbirth or related medical condition, medical condition (cancer relate d) or physical or mental disability, and in compliance with Title VII of the Civil Rights Act o f 1964, 42 U.S.C. Section 2000 et seq ., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621 et seq ., the Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b et seq ., 42 U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal. Government Code Section 12900 et seq ., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq . and all other antidiscrimination laws and regulat ions of the United States and the State of California as they now exist or may hereafter be amended. The Contractor shall allow representatives of the Developer and the City access to its employment records related to the Agreement and this Rider during regular busines s hours to verify compliance with these provisions when so requested by the Developer or the City.
12. In connection with performance and implementation of the Agreement, the Contractor agrees to reasonably coordinate its performance of the Public Improvements Services as necessary with other consultants or contractors retained by t he Developer or the City for the public parking improvements.
13. There shall be no modification, waiver or other alteration or change to the provisions of this Rider without the written consent of all of the parties hereto. In order to evidence their agreement to the provisions of this Rider and their incorporation into the Agreement in accordance with the terms above, the Contractor, the Developer and the City have separately executed this Rider below.
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IN WITNESS WHEREOF , the Developer, the City and the Contractor have c aused this Rider to be executed as of the date first set forth above.
“DEVELOPER”
CULVER PUBLIC MARKET, LLC,
a Delaware Limited Liability Company
By: Regency Centers, L.P.,
a Delaware limited partnership,
its Managing Member
By: Regency Centers Corporation,
a Florida corporation,
its General Partner
By: ________________________________
Name: _____________________________
Its: ________________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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“CITY ”
CITY OF CULVER CITY,
a municipal corporation
By: _________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Elaine Gerety-Warner
Economic Development Director
ATTEST:
By: ______________________________
Jeremy Bocchino
City Clerk
APPROVED AS TO FORM:
By: _________________________________
Heather Baker
City Attorney
By: _________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
[SIGNATURES CONCLUDE ON FOLLOWING PAGE]
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“CONTRACTOR”
_____________________________,
a California corporation
*see notes below
By: _________________________________
Name: _______________________________
Title: ________________________________
By: _________________________________
Name: _______________________________
Title: ________________________________
*Notes: This document must be executed by the Corporation’s Chief Executive Officer, President or Vice-President, on the one hand, and the Corporation’s Chief Financial Officer, Treasurer, Assistant Treasurer or Secretary on the other hand.
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RIDER TO CONTRACT
This Rider to Contract (this “ Rider ”) is attached to and incorporated in that certain ____________________ (the “ Agreement ”) dated ______________________, 20____, by and between CULVER PUBLIC MARKET, LLC, a Delaware limit ed liability company (the “Developer ”) and _______________________________, a Californi a corporation (the “Consultant ”). This Rider shall form an integral part of the Agreement, and the provisions set forth below shall be controlling notwithstanding anything to the contrary in the Agreement. Wherever possible, the provisions of this Rider and the Agreement shall be construed consistently so that each is given application to the fullest extent possible consistent with its intent. All defined terms used in this Rider and not otherwise defined herein, shall have the meaning prescribed for such term in the Agreement.
1. The Consultant hereby agrees that, with respect to the work and/or services to be performed by the Consultant for the proposed public parking improvements (and not for any portion of the private project improvements) under the Agre ement (such work and/or services shall hereinafter be referred to as the “ Public Improvements Services ”), the City of Culver City, a municipal corporation (the “ City ”), shall be an express third party beneficiary of the Agreement, including, without limitation, a third party benefi ciary of all guaranties, warranties, indemnitees, defend and hold harmless provisions and remedies provided to the Developer pursuant to the terms of the Agreement with the same right and authority to enforce the same either concurrently with or separate from the Developer. Loss, waiver or other limitation on such rights as to the Developer shall not affect or impact the City’s rights under those provisions, nor shall any such loss, waiver or other limitation on such rights as to the City affe ct or impact the Developer’s rights under such provisions, and each of the Developer and the City shall have the right to separately and independently exercise such rights as their interes ts may appear. Nothing herein shall limit the Consultant’s right to require the Developer’s timely performance of any duties or obligations of the Developer in accordance with the terms of the Agreement. Nothing in this Section 1 shall modify the provisions of the Agreement requiring and/or providing for the Consultant to take direction from or obtain the approvals of the Developer, and the Consultant shall rely and act upon such directions and approvals from the Developer in accordance with the provisions of the Agreement.
2. Without limiting Section 1 above, the Consultant specifically acknowledges that, with respect to the Public Improvements Services, the City shall be an express third party beneficiary of the indemnities by the Consultant of the Developer set forth in the Agreement. The Consultant further acknowledges and agrees that the Consultant’s indemnity obligations under those provisions to the City are not limited by the insurance coverages that the Consultant is required to maintain and if, for any reason such insurance coverages are ins ufficient to cover all obligations under those indemnity provisions, the Consultant shall neverthe less remain responsible to perform those indemnity obligations in full. The Consultant further acknowledges and agrees that the Consultant’s indemnity obligations under those provisions shall survive termination of the Agreement.
3. The City shall also be named as an additional insur ed in an endorsement to the insurance policies required by the Agreement. The Consultant shall furnish the City with evidence that such insurance has been obtained upon execution of this Rider by the Consultant, the Developer and the City.
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4. The Consultant acknowledges that it is acting as an independent contractor in performing its obligations under the Agreement and that, notwithstanding anything in the Agreement, the Consultant shall in no event be considered an agent or employee of the City, and in no event shall the Consultant or any of its employe es have any right to participate in any pension plan, insurance, bonus, worker’s compensation or si milar benefits the City provides for its employees. The Consultant shall be responsible to pay and hold the City harmless from any and all payroll and other taxes and interest thereon and penalties therefor which may become due as a result of any obligations, services or other matters performed by the Consultant or its agents or employees pursuant to the Agreement.
5. The City neither undertakes nor assumes nor will it have any responsibility or duty to the Consultant or to any employee or agent of the C onsultant to review, inspect, supervise, pass judgment upon or inform the Consultant or any such third party of any matter in connection with the design, development or construction of the public parking improvements, whether regarding (i) the quality, adequacy or suitability of the plans, whet her or not approved by the City, (ii) any labor, service, equipment or material furnished to or used in connection with the Public Improvements Services, (iii) any person furnishing the same or ( iv) other like matters. The Consultant and all employees and agents of the Consultant shall rely upon their own judgment regarding such matters, and any review, inspection, supervision, exercise o f judgment or information supplied to the Consultant or to any such third party by the City in connection with such matters is for the public purpose of redeveloping the site, and neither the C onsultant nor any third party is entitled to rely thereon. Nothing contained in this Rider shall abrogate, supersede or nullify any right the Developer has to approve documents produced by the Consultant as set forth in the Agreement.
6. Any notices to the City pursuant to the Agreement shall be delivered to the City in the manner provided in the Agreement at the address set forth below. For purposes of this Section 6, a general business day on which the Culver City City Hall is closed shall not constitute a business day:
To City: City of Culver City
Attn: Ms. Elaine Gerety-Warner, Economic Developer Director 9770 Culver Boulevard
Culver City, CA 90232-0507
With a Copy to: City of Culver City
Attn: Heather Baker, Esq., City Attorney
9770 Culver Boulevard
Culver City, CA 90232-0507
With a Copy to: Kane, Ballmer & Berkman, City Speci al Counsel Attn: Todd C. Mooney, Esq.
515 South Figueroa Street, Suite 780
Los Angeles, CA 90071
7. For the benefit of the City as well as the Developer, the Consultant shall comply with all applicable laws, ordinances, rules, regulations and requirements governing the public parking improvements, including, without limitation, curren t California state laws regarding water consumption and stormwater and waste water retention and discharge. The Consultant shall also, at City Contract Requirements (Public Parking) 3
4843-8089-9733, v. 1
its expense, procure and maintain all permits, licenses and certificates which may be required at any time in connection with the performance of any work or services performed by or through the Consultant pursuant to the Agreement, including, wi thout limitation, a Culver City business tax certificate. Without limitation of the foregoing, the Consultant specifically acknowledges and agrees that it shall be responsible for complying with all prevailing wage requirements applicable to the Consultant’s services under California Labor Code S ection 1720 et seq ., including any work performed by employees, agents or contractors of th e Consultant pursuant to the Agreement, and including, without limitation, complying with applicable requirements of California Senate Bill No. 854 signed into law on June 20, 2014.
8. To the extent that applicable Public Improvements Services have been paid for under the Agreement, the Consultant specifically acknowledges and agrees that with respect to the work performed, gathered and prepared by the Consultant or caused to be performed, gathered and prepared by the Consultant in the Consultant’s performance of the Public Improvements Services, if any, the City shall also have the right to exercise and enjoy the benefits of the irrevocable, nonexclusive license described therein, including the right to copy, retain and use all computations, plans, drawings, studies, specifications, design documents and any other instruments, data, computer media and materials gathered or prepared by the Consultant or caused to be gathered or prepared by the Consultant in the Consultant’s performance of the Public Improvements Services, if any, at no further cost to the City, and without cost, expense or obligation to the Consultant, the Developer or any third party, and whether or not the Agreement i s terminated for any reason, and whether the public parking improvements are developed or not. All such work product shall be transmitted or caused to be transmitted to the City by the Consultant within ten (10) calendar days after a written request therefor is made by the City. The City sha ll also have the right to exercise and enjoy the benefits of such an irrevocable, nonexclusive license, including the right to copy, retain and use all such design or other work product produced by any t hird party contractor whose services are retained by the Consultant for the public parking i mprovements, and the Consultant shall deliver such work product to the City within the timeframe described in this Section 8 when the City provides the Consultant a written request for such work product. All written documents that are intended for public review shall be provided to the City by the Consultant in a format suitable for posting on the Internet. Any reuse of such drawings, specifications and other documents by the City for a purpose other than for the public parking imp rovements, or any portion thereof, without the written agreement of the Consultant shall be at the City’s risk and expense, and without any liability or exposure to the Consultant; and the City shall indemnify and hold harmless the Consultant from any and all third party claims, damages, losses and expenses arising out of or resulting therefrom.
9. In maintaining its records of Public Improvements S ervices and reimbursable expenses, the Consultant shall maintain sufficientl y detailed records of the Public Improvements Services performed by or on behalf of the Consultant and resulting work that are attributable to the public parking improvements so that the calculations and resulting costs and expenses attributable to the portion of the Consultant’s Public Improvements Services shall be separately identified and distinguished from the remaining scope of work perf ormed by or on behalf of the Consultant pursuant to the Agreement.
10. The Consultant acknowledges and agrees that by virtue of its execution and delivery of this Rider the Consultant shall have no rights or remedies against the City for any payments due by the Developer to the Consultant under the Agreem ent or for the performance of any of the City Contract Requirements (Public Parking) 4
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Developer’s obligations under the Agreement, and th e City’s execution of this Rider shall not be construed or interpreted in any way as the City’s a greement or consent to be subject to the Developer’s obligations under the Agreement or to b e a guarantor for the performance of the Developer’s obligations under the Agreement. Except as expressly provided in the last sentence of Section 8 above, the City shall have no liability w hatsoever to the Consultant due to the City’s execution of this Rider or otherwise.
11. In connection with performance and implementation o f the Agreement, the Consultant agrees that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person cla iming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, less ees, subtenants, sublessees or vendees of the premises. Without limitation of the foregoing, the Consultant further certifies and agrees that all persons employed or applying for employment by it and all of its subcontractors, sub-consultants, bidders and vendors, are and will be treated equally by it without regard to, or because of race, color, religion, ancestry, national origin, sex, age, sexu al orientation, pregnancy, childbirth or related medical condition, medical condition (cancer relate d) or physical or mental disability, and in compliance with Title VII of the Civil Rights Act o f 1964, 42 U.S.C. Section 2000 et seq ., the Federal Equal Pay Act of 1963, 29 U.S.C. Section 206(d), the Age Discrimination in Employment Act of 1967, 29 U.S.C. Section 621 et seq ., the Immigration Reform and Control Act of 1986, 8 U.S.C. Section 1324b et seq ., 42 U.S.C. Section 1981, the California Fair Employment and Housing Act, Cal. Government Code Section 12900 et seq ., the California Equal Pay Law, Cal. Labor Code Section 1197.5, Cal. Government Code Section 11135, the Americans with Disabilities Act, 42 U.S.C. Section 12101 et seq . and all other antidiscrimination laws and regulat ions of the United States and the State of California as they now exist or may hereafter be amended. The Consultant shall allow representatives of the Developer and the City access to its employment records related to the Agreement and this Rider during regular busines s hours to verify compliance with these provisions when so requested by the Developer or the City.
12. In connection with performance and implementation o f the Agreement, the Consultant agrees to reasonably coordinate its performance of the Public Improvements Services as necessary with other consultants or contractors retained by the Developer or the City for the public parking improvements.
13. There shall be no modification, waiver or other alteration or change to the provisions of this Rider without the written consent of all of the parties hereto. In order to evidence their agreement to the provisions of this Rider and their incorporation into the Agreement in accordance with the terms above, the Consultant, the Developer and the City have separately executed this Rider below.
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IN WITNESS WHEREOF , the Developer, the City and the Consultant have c aused this Rider to be executed as of the date first set forth above.
“DEVELOPER”
CULVER PUBLIC MARKET, LLC,
a Delaware Limited Liability Company
By: Regency Centers, L.P.,
a Delaware limited partnership,
its Managing Member
By: Regency Centers Corporation,
a Florida corporation,
its General Partner
By: ________________________________
Name: _____________________________
Its: ________________________________
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
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“CITY ”
CITY OF CULVER CITY,
a municipal corporation
By: _________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Elaine Gerety-Warner
Economic Development Director
ATTEST:
By: ______________________________
Jeremy Bocchino
City Clerk
APPROVED AS TO FORM:
By: _________________________________
Heather Baker
City Attorney
By: _________________________________
KANE, BALLMER & BERKMAN
City Special Counsel
[SIGNATURES CONCLUDE ON FOLLOWING PAGE]
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“CONSULTANT”
_____________________________,
a California corporation
*see notes below
By: _________________________________
Name: _______________________________
Title: ________________________________
By: _________________________________
Name: _______________________________
Title: ________________________________
*Notes: This document must be executed by the Corporation’s Chief Executive Officer, President or Vice-President, on the one hand, and the Corporation’s Chief Financial Officer, Treasurer, Assistant Treasurer or Secretary on the other hand.
GUARANTY
This Guaranty (this “ Guaranty ”) is made and entered into by REGENCY CENTERS CORPORATION, a Florida corporation (the “ Guarantor ”), to and for the benefit of the CITY OF CULVER CITY, a municipal corporation (the “ City ”), and its successors and assigns, effective as of ______________________, 2025.
RECITALS
A. CULVER PUBLIC MARKET, LLC, a Delaware limited l iability company (the “Developer ”) and the City entered into that certain Developme nt and Construction Contract for Public Improvements, dated as of May 31, 2019 (the “DCC ”). All of the terms and provisions of the DCC are fully incorporated herein by this refer ence as though fully set forth herein. The “DCC” as used herein shall mean, refer to and inclu de the DCC, as well as any riders, exhibits, addenda, implementation agreements, amendments and attachments thereto or other documents expressly incorporated by reference in the DCC. An y capitalized term not herein defined shall have the same meaning ascribed to such term in the DCC.
B. The Guarantor is an affiliate of the Developer, and it will directly benefit should the Developer develop the Public Parking Improvemen ts on Site A-1, in the manner and in accordance with the terms of the DCC. The Guaranto r acknowledges that this Guaranty is required by the City as a condition precedent and a s an inducement to the City to carry out its obligations in accordance with the terms of the DCC.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration given by the City to the Developer an d the Guarantor, the receipt and sufficiency of which are hereby acknowledged, and in further co nsideration of and to induce the City to perform its obligations under the DCC, the Guarantor does hereby irrevocably warrant, guarantee and agree, as follows:
1. The Guarantor acknowledges receipt of a copy of the DCC and all of the instruments described therein and/or attached thereto.
2. If for any reason, other than acts or omissions of the City, the Developer should fail to perform any of its construction obligations under the DCC (in accordance with the Schedule of Performance therefor, which has been or may be revised or extended from time to time) including, without limitation, failure to com plete its construction of the Public Parking Improvements on or before the date required by the DCC in all respects and in accordance with and in the manner set forth in the DCC and the appr oved plans and specifications (which obligations are hereinafter referred to collectivel y as the “ Performance Obligations ”), then the City, at its option, and upon 30 calendar days’ pri or written notice to the Guarantor, shall have the right to call upon the Guarantor, and the Guara ntor shall assume each and all of the outstanding obligations of the Developer constituti ng the Performance Obligations and shall promptly commence and diligently prosecute to compl etion all such Performance Obligations in accordance with the terms of the DCC.
3. If for any reason, other than acts or omissions of the City, the Developer fails to pay any amounts for which the Developer may become liable under the DCC, including, without limitation, the costs of development, construction and construction management of the Public Parking Improvements, other than the City’s obligat ion to pay the Maximum Public Parking Improvements Contribution and any obligations which the City may incur under Section 2.6(b) or any other provisions of the DCC (which Developer obligations are collectively and hereinafter
referred to as the “ Payment Obligations ”), then the City, at its option, and upon 30 calen dar days’ prior written notice to the Guarantor, shall call upon the Guarantor, and the Guarantor shall assume each and all of the outstanding financial ob ligations of the Developer constituting the Payment Obligations, and promptly pay each and all of the outstanding balances of the Payment Obligations in accordance with the terms of the DCC as they become due and payable.
4. The Guarantor’s performance of the Performance Obligations may be excused during periods of delay caused by the City or by th e occurrence of events described in Section
10.18 of the DCC.
5. To the full extent of the Developer’s responsib ility therefor under the DCC, the Guarantor shall pay and discharge all mechanic’s an d materialmen’s liens or claims therefor imposed against Site A-1 and/or the Public Parking Improvements.
6. This Guaranty is a present, absolute and contin uing Guaranty during the term hereof as set forth in Section 16 below; the City’s performance of its obligations under the DCC shall conclusively evidence the reliance by the Cit y upon this Guaranty and the obligations and agreements of the Guarantor as set forth herein.
7. The Guarantor waives (i) any right to require t hat any action be brought against the Developer or any other person or to require tha t resort be first had to any security for the performance of the Developer’s obligations prior to the enforcement of this Guaranty by the City, and (ii) any right to pursue any remedy in th e Developer’s power whatsoever, and if any right of action shall accrue to the City by reason of the failure of the Developer to perform any of the Performance Obligations or pay any of the Payme nt Obligations required of the Developer pursuant to the DCC then, unless such default shall be cured by the Guarantor as aforesaid, the City, at its election, may proceed against (A) the Guarantor, together with the Developer, (B) the Guarantor and the Developer, severally, or (C) the Guarantor only, in each case, without having commenced any action or having obtained any judgmen t against the Developer and whether or not the Developer is a party in any such action.
8. The obligations of the Guarantor shall not be d ischarged, impaired or otherwise affected by (i) any sale, transfer, assignment, ple dge, surrender, indulgence, forbearance, alteration, substitution, exchange, change in, amen dment, revision, modification or other disposition of the DCC, (ii) the acceptance by the City of any security for or other guarantors with respect to the Performance Obligations and/or the Payment Obligations guaranteed hereunder (collectively, the “ Guaranteed Obligations ”), (iii) any failure, negligence or omission on the part of the City to enforce the ter ms of the DCC, or (iv) the release by the City of any security for the performance of the Guarante ed Obligations or the release by the City of any person (including any other guarantor) from liability for the Guaranteed Obligations; it being expressly understood and agreed that the undertakin gs, liabilities and obligations of the Guarantor shall not be affected, discharged, impair ed or varied by any act, omission or circumstance whatsoever (whether or not specificall y enumerated herein) except the due and punctual performance of the Guaranteed Obligations.
9. The Guarantor hereby expressly waives (i) notic e of acceptance of this Guaranty, (ii) all notices to which the Guarantor might other wise be entitled, except as required herein, (iii) any defense arising (A) by reason of any disability of the Developer or (B) by reason of the cessation from any cause whatsoever (except a defen se available to the Developer under the DCC) of the liability of the Developer other than f ull performance of the Guaranteed Obligations, (iv) diligence in enforcement and any and all formalities which might otherwise be legally required to charge the Guarantor with liabi lity, and (v) all diligence in collection or
protection and all presentment, demand, protest and notice of protest, notice of dishonor and notice of default.
10. In the event that the Guarantor should fail to fully perform the Guaranteed Obligations promptly as herein provided, the City shall have the following remedies:
(a) at its option and without any obligation so t o do, but upon 30 calendar days’ prior written notice to the Guarantor, procee d to perform and/or pay on behalf of the Guarantor any and all of the Guaranteed Obligations , and the Guarantor shall, upon demand, pay to the City all such sums expended by the City in s uch performance on behalf of the Guarantor; and
(b) from time to time and without first requiring full performance of any of the Guaranteed Obligations by the Developer and wit hout being required to exhaust any or all security held by the City, to require (subject to S ection 4 hereof) performance by the Guarantor of all of the Guaranteed Obligations (or any part t hereof) pursuant to the terms hereof, by action at law or in equity or both, and further to collect in any such action compensation for all loss, cost, damage, injury and expense sustained or incur red by the City as a consequence of such breach.
11. This Guaranty is a guarantee of the performanc e and payment of certain obligations contained and provided for herein by th e Guarantor, and the Guarantor shall be personally liable for any claims by the City agains t the Developer with respect to the Guaranteed Obligations. Nothing contained herein shall limit or otherwise impair the Guarantor’s obligation to pay to the City, upon demand, all actual, reason able, out-of-pocket fees and costs (including, without limitation, attorneys’ fees and disbursemen ts) incurred by the City in instituting and/or maintaining any action for damages against the Guarantor pursuant to the terms of this Guaranty.
12. As of the date of execution of this Guaranty, ( i) the Guarantor warrants that it has full authority to execute this Guaranty and comply with its terms, and (ii) the Guarantor declares to and covenants with the City and its successors a nd assigns, that the Guarantor knows of no defense whatsoever to any action, suit or proceedin g, at law or otherwise, that may be instituted on this Guaranty.
13. No failure on the part of the City to pursue a ny remedy hereunder or under the DCC shall constitute a waiver on its part of the ri ght to pursue said remedy on the basis of the same or a subsequent breach.
14. The Guarantor shall promptly advise the City i n writing of any material adverse change in its business or financial condition.
15. Until the Guaranteed Obligations have been per formed in full, the Guarantor shall have no right of subrogation, and hereby waives any right to enforce any remedy that the City now has or may hereafter have against the Developer and waives the benefit of, and any right to participate in, any security now or hereafter held by the City from the Developer, except to the extent such security remains after full performance of the Guaranteed Obligations.
16. This Guaranty shall terminate upon the later o f (i) the Completion of the Public Parking Improvements, and (ii) the date of full pay ment by the Developer of the financial obligations constituting the Payment Obligations ac crued in connection with the Developer’s Completion of the Public Parking Improvements.
17. This Guaranty shall be binding upon the Guaran tor and its successors and assigns.
18. Each reference herein to “City” shall be deeme d to include the City and each of its successors and assigns, and all of the provisio ns of this Guaranty shall run in favor of said named City and its said successors and assigns.
19. The Guarantor agrees that it shall reimburse t he City for all actual, reasonable, out-of-pocket expenses, including reasonable attorn eys’ fees (including the reasonable value of the services of in-house counsel), incurred by the City in enforcing the Developer’s performance of the Guaranteed Obligations or incurred by the Ci ty in the enforcement of this Guaranty. Any sums required to be paid by the Guarantor to the Ci ty pursuant to the terms hereof shall bear interest at the rate of 3% over the Bank of America reference rate (up to the maximum rate permitted by law) on the due date from the date sai d sums shall be due to the City until the same shall have been paid in full.
20. This Guaranty shall be governed by and constru ed in accordance with the laws of the State of California.
21. In addition to any other rights or remedies, t he parties hereto may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Gu aranty. Such legal actions must be instituted in the Superior Court of the County of Los Angeles, State of California, in any other appropriate court of that county, or in the Federal District Co urt in the Central District of California.
Notwithstanding anything herein, no party, however, shall have any right to indirect or consequential or punitive damages against another, and each party hereby waives the right to claim the same against the other.
22. In the event that any legal action is commence d by the Guarantor against the City, service of process on the City shall be made by per sonal service upon the City Manager of the City, or in such other manner as may be provided by law. In the event that such legal action is commenced by the City against the Guarantor, service of process on the Guarantor shall be made by personal service upon the registered agent in Ca lifornia for the Guarantor and shall be valid whether made within or without the State of California, or in such manner as may be provided by law.
23. Time is of the essence of every part hereof.
24. If any term, provision, covenant or condition hereof or any application thereof should be held by a court of competent jurisdiction to be invalid, void or unenforceable, then all terms, provisions, covenants and conditions hereof, and all applications thereof not held invalid, void or unenforceable, shall continue in full force and effect and shall in no way be affected, impaired or invalidated thereby.
25. This Guaranty may be executed by the parties h ereto in any number of counterparts, each of which shall be deemed to be a n original and all of which together shall constitute but one and the same instrument. The pa rties specifically agree that signatures on this Guaranty transmitted electronically or by facsimile shall be legally binding and that each party is entitled and authorized to rely on such electronic or facsimile signature of the other parties hereon as if it were an original signature. Origin al signatures of the Guarantor shall also be provided to the City for its records.
[Signatures on Following Page]
IN WITNESS WHEREOF, the Guarantor has executed thi s Guaranty as of the date first above written.
“GUARANTOR ”
REGENCY CENTERS CORPORATION,
a Florida corporation
By: ___________________________________
Ray Kayacan
Vice President, Investments
[Signatures Continue on Following Page]
The City hereby accepts this Guaranty in accordance with the terms and conditions contained herein.
“CITY ”
CITY OF CULVER CITY,
a municipal corporation
By: ____________________________________
John M. Nachbar
City Manager
APPROVED AS TO CONTENT:
By: ______________________________
Elaine Gerety-Warner
Economic Development Director
ATTEST:
By: ______________________________
Jeremy Bocchino
City Clerk
APPROVED AS TO FORM:
By: _____________________
Heather Baker
City Attorney
By: _________________________________
KANE, BALLMER & BERKMAN
City Special Counsel