Koenig/Ralphs Shopping Center OPA 93OWNER PARTICIPATION AGREEMENT
IMPOSING COVENANTS AFFECTING REAL PROPERTY
by and between
LA QUINTA REDEVELOPMENT AGENCY,
and
KOENIG COMPANIES
Agency
Participant
TABLE OF CONTENTS
I. [§100] SUBJECT OF AGREEMENT ..............................
A. [§ 101 ] Purpose of Agreement ..............................
B. [§102] The Redevelopment Plan .............................
C. [§103] The Site .......................................
D. [§104] Parties to the Agreement .............................
1. [§105] The Agency ................................
2. [§106] The Participant ..............................
3. [§107] Prohibition Against Change in Ownership, Management and
Control of Participant, Transfer of the Site or
Improvements, and Assignment of Agreement ...........
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II. [§200] AGENCY PARTICIPATION .............................. 4
A. [§201] Agency Consideration For Covenants Affecting Real Property ...... 4
B. [§202] Recordation of Documents ............................ 4
III.. [§300] DEVELOPMENT OF THE SITE ............................ 4
A. [§301] Development of the Site by the Participant .................. 4
1. [§302] Development of the Site ........................ 4
2. [§303] Cost of Construction .......................... 5
3. [§304] Construction Schedule .......................... 5
4. [§305] Bodily Injury and Property Damage Insurance ............ 5
5. [§306] City and Other Governmental Agency. Permits ........... 6
6. [§307] Rights of Access ............................. 6
7. [§308] Local, State and Federal Laws .................... 7
8. [§309] Non-discrimination During Construction .............. 7
B. [§310] Taxes, Assessments, Encumbrances and Liens ............... 7
C. [§311] Certificate of Completion ............................ 7
IV. [§400] USE OF THE PROPERTY ............................... 8
A. [§401] Uses. [Subject to negotiation and consultation with Agency.] ...... 8
B. [§402] Reciprocal Access Requirements ........................ 8
C. [§403] Maintenance of the Site ............................. 8
D. [§404] Rights of Access .................................. 9
E. [§405] Effect of Violation of the Terms and Provisions of this Agreement
After Completion of Construction ....................... 9
F. [§406] Non-discrimination After Completion of Improvements .......... 9
V. [§500] DEFAULTS AND REMEDIES ............................ 11
A. [§501] Defaults --General ................................ 11
B. [§502] Legal Actions .................................. 12
1. [§503] Institution of Legal Actions ..................... 12
2. [§504] Applicable Law ............................. 12
3. [§505] Acceptance of Service of Process .................. 12
PUBL:9786_111871B2588.0
C. [§506] Rights and Remedies Are Cumulative ....................
D. [§507] Inaction Not a Waiver of Default ......................
E. [§508] Remedies upon Default .............................
1. [§509] Damages . ................................
2. [§510] Specific Performance .........................
3. [§511] Termination by the Participant ...................
4. [§512] Termination by the Agency .....................
VI. [§600] GENERAL PROVISIONS ...............................
A. [§601] Notices, Demands and Communications Between the Parties ......
B. [§602] Conflicts of Interest ...............................
C. [§603] Enforced Delay; Extension of Times of Performance ..........
D. [§604] Nonliability of Officials and Employees of the Agency .........
E. [§605] Amendments to this Agreement .......................
F. [§607] Time of Essence ... ........................... .
G. [§608] Attorneys' Fees ..................................
VII. [§700] ENTIRE AGREEMENT, WAIVERS ........................
VIII. [§800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY ........
ATTACHMENTS
Attachment No. 1
Site Map
Attachment No. 2
Legal Description
Attachment No. 3
Scope of Development
Attachment No. 4
Schedule of Performance
Attachment No. 5
Agreement Regarding Covenants to Develop, Use and Maintain the Site
Attachment No. 6
Certificate of Completion
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PUBL:9786_111871B2588.0 H
OWNER PARTICIPATION AGREEMENT
THIS OWNER PARTICIPATION AGREEMENT (the "Agreement") is entered
into by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body corporate
and politic (the "Agency"), and KOENIG COMPANIES, a California general partnership (the
"Participant"). The Agency and the Participant hereby agree as follows:
I. [§100] SUBJECT OF AGREEMENT
A. [§ 101 ] Purpose of Agreement
The purpose of this Agreement is to effectuate the Redevelopment Plan (as
hereinafter defined) for the La Quinta Redevelopment Project Area No. 1 (the "Project") by
providing for the development of certain property situated within the Project Area of the Project
(the "Project Area") as a grocery retail center. That portion of the Project Area to be developed
pursuant to this Agreement (the "Site") is depicted on the "Site Map", which is attached hereto as
Attachment No. 1 and incorporated herein by reference. This Agreement is entered into for the
purpose of developing such a grocery retail center on the Site and not for speculation in land
holding. Completing the development of the Site pursuant to this Agreement is in the vital and
best interest of the City of La Quinta, California (the "City") and the health, safety and welfare
of its residents, and in accord with the public purposes and provisions of applicable state and
local laws and requirements under which the Project has been undertaken.
B. [§102] The Redevelopment Plan
The Redevelopment Plan for the La Quints Redevelopment Project Area No. 1
was approved and adopted by the City Council of the City of La Quinta by Ordinance No. 43 on
November 29, 1983; said ordinance and the Redevelopment Plan as so approved (the
"Redevelopment Plan") are incorporated herein by reference.
C. [§103] The Sit
The Site consists of one (1) parcel of real property located at the northwest corner
of Washington Street and Calle Tampico. The Site shall be all or a portion of the area included
within the "Legal Description" which is attached hereto as Attachment No. 2 and incorporated
herein by reference.
D. [§104] Parties to the Agreement
1. [§105] The Agency
The Agency is a public body, corporate and politic, exercising
governmental functions and powers and organized and existing under Chapter 2 of the
Community Redevelopment Law of the State of California. The principal office and mailing
address of the Agency is 78-495 Calle Tampico, La Quinta, California 92253.
PusL:9786_111871B2588.0
"Agency", as used in this Agreement, includes the La Quinta
Redevelopment Agency, and any assignee of or successor to its rights, powers and
responsibilities. Any action or approval of the Agency required hereunder may be taken or given
by the Agency Executive Director or his or her designee, when specifically provided herein.
2. [§106] The Participant
The Participant is Koenig Companies, a California corporation. The
President is John W. Koenig. The Participant has represented to the Agency that the Participant
has the experience and qualifications necessary to perform the obligations of Participant pursuant
to this Agreement. The principal office of the Participant is 2601 Airport Drive, Suite 240,
Torrance, California 90505.
By executing this Agreement, each person signing on behalf of the
Participant warrants and represents to the Agency that the Participant is duly formed and
operating in compliance with all applicable laws, that the Participant has the full power and
authority to enter into this Agreement, that all authorizations required to make this Agreement
binding upon the Participant have been obtained, and that the persons executing this Agreement
on behalf of the Participant are fully authorized to do so.
3. [§107] Prohibition Against Change in Ownership. Management and
Control of Participant. Transfer of the Site or Improvements. and
Assignment of Agreement
(a) Prohibition. The qualifications and identity of the Participant as a
developer and operator of a grocery retail center are of particular concern to the City and the
Agency. It is because of those qualifications and identity that the Agency has entered into this
Agreement with the Participant. Until the issuance of a Certificate of Completion pursuant to
Section 313 herein, no voluntary or involuntary successor in interest of the Participant shall
acquire any rights or powers under this Agreement, nor shall Participant make any total or partial
sale, transfer, conveyance, assignment or lease of the whole or any part of the Site or the
improvements thereon without prior written approval of the Agency, except as expressly set forth
herein.
(b) Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, prior to expiration of the Term (as that term is defined in Section 401
hereof), Agency approval of an assignment of this Agreement or conveyance of the Site or
improvements, or any part thereof, shall not be required in connection with any of the following:
(i) Any transfers to an entity or entities in which the
Participant retains a minimum of fifty-one percent (51 %) of the ownership or beneficial interest
and retains management and control of operations of the transferee entity or entities.
(ii) Transfers resulting from the death or mental or physical
incapacity of an individual partner of Participant.
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(iii) The conveyance or dedication of any portion of the Site to
the City or other appropriate governmental agency, or the granting of easements or permits to
facilitate construction of the improvements (as defined herein).
(iv) Any requested assignment for a mortgage or deed of trust
on the Site for financing purposes, including, without limitation, the grant of a deed of trust to
secure the funds necessary for construction and thereafter permanent financing or refinancing of
the Site acquisition and improvements.
(v) Transfers or assignments in trust for the benefit of a
spouse, children, grandchildren or other family members.
(vi) Leases to tenants.
(vii) Transfers of stock in publicly traded companies or
beneficial interest in publicly held partnerships or real estate investment trust ("REIT").
In the event of an assignment by Participant under subparagraphs (i)
through (v), inclusive, above not requiring the Agency's prior approval, Participant nevertheless
agrees that at least thirty (30) days prior to such assignment it shall give written notice to Agency
of such assignment.
(c) Agency Consideration of Requested Transfer. The Agency agrees
that it will not unreasonably withhold approval of a request to assign or transfer made pursuant to
this Section 107, provided the Participant delivers written notice to the Agency requesting such
approval. Such notice shall be accompanied by evidence regarding the proposed assignee's or
transferee's retail qualifications and experience, projected taxable sales volume and its financial
commitments and resources sufficient to enable the Agency to evaluate the proposed assignee or
purchaser pursuant to the criteria set forth in this Section 107 and other criteria as reasonably
determined by the Agency. The Agency shall evaluate each proposed transferee or assignee on
the basis of its development and/or retail qualifications and experience and may reasonably
disapprove any proposed transferee which the Agency determines lacks the qualifications and
experience necessary for development of the improvements described in the Scope of
Development attached hereto as Attachment No. 3 and incorporated herein by this reference. It
shall also be reasonable for the Agency to disapprove an assignee or transferee if the primary use
of the facility will be other than a use which is complimentary to the grocery retail center.
Within thirty (30) days after the receipt of the Participant's written notice
requesting Agency approval of an assignment or transfer pursuant to this Section 107, the Agency
shall respond in writing by stating what further information, if any, the Agency reasonably
requires in order to determine the request complete and determine whether or not to grant the
requested approval. Upon receipt of such a response, the Participant shall promptly furnish to
the Agency such further information as may be reasonably requested.
(d) Successors and Assigns. All of the terms, covenants and
conditions of this Agreement shall be binding upon the Participant and the permitted successors
and assigns of the Participant. Whenever the term "Participant" is used in this Agreement, such
term shall include any other permitted successors and assigns as herein provided.
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(e) Termination of Restrictions. The restrictions of this Section 107
shall terminate and be of no further force and effect after the issuance of a Certificate of
Completion for the improvements pursuant to Section 311.
II. [§200] AGENCY PARTICIPATION
A. [§201] Agency Consideration For Covenants Affecting Real Property
1. Purpose. The primary purpose of this Agreement is for the Participant to
covenant to develop, use, and maintain the Site as a grocery retail center in accordance with all
the covenants and restrictions in this Agreement, the Redevelopment Plan and current zoning and
general plan designations. In return for the Participant's covenants, the Agency shall provide
financial incentives to aid in the Participant's performance as provided in this Section 201.
2. Agency Assistance. Agency agrees to pay the cost attributable to Participant for
each of the following: (i) twenty-five percent (25 %) of the cost of share of traffic signal
located at the intersection of Washington and Tampico; (ii) fifty percent (50%) of the cost of the
traffic signal 550 feet west of Washington Street; and (iii) fifty percent (50%) of the cost of the
traffic signal approximately 750 feet north of Calle Tampico.
3. Indemnification for Third -Party Claims. Participant shall hold harmless,
indemnify and defend Agency for any cause of action or claim asserted against Agency or City,
including a claim for injunctive relief, by a third party arising out of or relating to the validity or
enforceability of this Agreement or the condition of the Site, including, but not limited to, any
environmental or hazardous waste clean-up requirement or claim pursuant to any state or federal
law.
B. [§202] Recordation of Documents
Prior to the issuance of the Certificate of Completion and prior to the payment of
any Agency Assistance, the Agreement Regarding Covenants to Develop, Use and Maintain the
Site attached hereto as Attachment No. 5 and incorporated herein by this reference shall be
recorded against the Site.
III.. [§300] DEVELOPMENT OF THE SITE
A. [§301] Development of the Site by the Participant
1. [§302] Development of the Site
The Site shall be developed in accordance with the Scope of Development
(Attachment No. 3), including any applicable mitigation measures.
The development shall include all improvements depicted on any plans and
specifications submitted to and approved by City, and shall incorporate or show compliance with
all applicable condition of approval and mitigation measures.
PUBL:9786_11187IB2588.0 4
2. [§303] Cost of Construction
The Participant, at the Participant's sole cost and expense, shall construct
or cause the construction of all of the improvements and on -site public improvements to be
constructed pursuant to this Agreement and the Scope of Development (Attachment No. 3).
Additionally, the Participant shall pay for hazardous site remediation and for the demolition and
removal of any subsurface improvements and existing buildings or improvements, if any, on the
Site prior to the commencement of construction of the improvements.
3. [§304] Construction Schedule
The Participant shall cause the commencement and completion of the
improvements by the respective times set out in the Schedule of Performance (Attachment
No. 4). For the purposes of this Agreement, to "commence" or "begin" construction means
completion of grading and commencement of the foundations.
If Participant fails to commence or complete construction within such time
periods, but Participant has obtained financing for the improvements pursuant to Section 303
hereof and if Participant can otherwise demonstrate to the Agency's satisfaction that it is able to
perform its obligations in conformance with this Agreement (such ability to proceed to be
determined by the Agency in its sole and absolute discretion), then the Agency Executive
Director may in his or her reasonable discretion provide the Participant with written notice of the
Agency's approval to begin or complete construction of the improvements at a later time.
4. [§305] Bodilyjury and Property Damage Insurance
The Participant shall defend, assume all responsibility for and hold the
Agency and the City, and their officers, representatives, agents and employees, harmless from,
all claims or suits for, and damages to, property and injuries to persons, including accidental
death (including attorneys fees and costs), which may be caused by any of the Participant's acts,
omissions, failures to act or other activities under this Agreement, whether such activities or
performance thereof be by the Participant or anyone directly or indirectly employed or contracted
with by the Participant and whether such damage shall accrue or be discovered before or after
termination of this Agreement.
The Participant shall take out and maintain or cause to be taken out and
maintained a comprehensive liability policy in the amount of One Million Dollars ($1,000,000)
combined single limit policy, including contractual liability, which shall protect the Participant,
City and Agency and their respective officers, representatives, employees and agents from
claims, losses or damages for any claims arising out of acts or omissions occurring from the date
of this Agreement up to and including the date of the issuance of a Certificate of Completion for
the improvements in connection with Participant's activities hereunder.
The Participant shall furnish a certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage which shall be in conformance with this
Section 305. This countersigned certificate shall name the City and the Agency and their
officers, employees, agents and representatives as additional insureds under the policy. The
PU13L:9786_111871B2588.0 5
certificate by the insurance carrier shall contain a statement of obligation on the part of the
carrier to notify City and the Agency of any material change, cancellation or termination of the
coverage at least thirty (30) days in advance of the effective date of any such material change,
cancellation or termination. Coverage provided hereunder by the Participant shall be primary
insurance and not contributing with any insurance maintained by the Agency or City, and the
policy shall contain such an endorsement. The insurance policy or the certificate of insurance
shall contain a waiver of subrogation for the benefit of the City and the Agency. The required
certificate shall be furnished by the Participant at the time set forth therefor in the Schedule of
Performance (Attachment No. 4).
The Participant shall also furnish or cause to be furnished to the Agency
evidence satisfactory to the Agency that any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this Agreement carries workers'
compensation insurance as required by law.
The Participant's obligation to maintain insurance as set forth in this
Section 305 shall remain in effect only until (i) a Certificate of Completion has been furnished for
the improvements as hereafter provided in Section 311 of this Agreement if the policy is on an
"occurrence" basis and (ii) two (2) years following issuance of a Certificate of Completion for
the improvements if the policy is on a "claims made" basis.
5. [§306] City and Other Governmental Agency Permits
Prior to the commencement of construction of the improvements, the
Participant shall secure or cause to be secured any and all permits which may be required by the
City or any other governmental agency affected by or with jurisdiction over such construction.
6. [§307] Rights of Access
For the purpose of assuring compliance with this Agreement,
representatives of the Agency and the City shall have the right of access to all portions of the
Site, without charges or fees, at normal construction hours for the purposes of this Agreement,
including, but not limited to, the inspection of the work being performed in constructing the
improvements, so long as they comply with all generally applicable safety rules. Such
representatives of the Agency or of the City shall be those who are so identified in writing by the
Executive Director of the Agency. The Agency shall hold the Participant harmless from any
bodily injury or related damages arising out of the activities of the Agency and the City as
referred to in this Section 307.
The Participant and the Agency agree to cooperate in placing and
maintaining on the Site one sign indicating the respective parts of the Participant and the Agency
in the construction of the improvements. The cost of the sign shall be borne solely by the
Participant. All such signs required under this Section 307 are subject to City ordinances and
approvals.
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7. [§308] Local. State and Federal Laws
The Participant shall carry out the construction of the improvements in
conformity with all applicable laws, including all applicable federal and state labor standards,
provided, however, Participant and its contractors, successors, assigns, transferees and lessees do
not waive their rights to contest any such laws, rules or standards.
8. [§309] Non-discrimination During Construction
The Participant, for itself and its successors and assigns, agrees that in the
construction of the improvements, the Participant will not discriminate against any employee or
applicant for employment because of race, color, creed, religion, sex, marital status, national
origin or ancestry.
B. [§310] Taxes. Assessments. Encumbrances and Liens
The Participant shall pay when due all ad valorem taxes and assessments on the
Site. Prior to issuance of the Certificate of Completion pursuant to Section 311, the Participant
shall not place on the Site, or any part thereof, any mortgage, trust deed, encumbrance or lien
other than as expressly allowed by this Agreement. The Participant shall remove or have
removed any levy or attachment made on any of the Site or any part thereof, or assure the
satisfaction thereof within a reasonable time but in any event prior to a sale thereunder.
The holder of any mortgage or deed of trust authorized by this Agreement shall
not be obligated by the provisions of this Agreement to construct or complete the improvements
or to guarantee such construction or completion; nor shall any covenant or any other provision in
the deed for the Site be construed so to obligate such holder. Nothing in this Agreement shall be
deemed to construe, permit or authorize any such holder to devote the Site to any uses or to
construct any improvements thereon, other than those uses or improvements provided for or
authorized by this Agreement.
C. [§311] Certificate of Completion
After completion of all construction and development required by this Agreement
to be completed by the Participant upon the Site in conformity with this Agreement, the Agency
shall furnish the Participant with a Certificate of Completion within thirty (30) days of written
request therefor by the Participant. The Agency shall not unreasonably withhold the Certificate
of Completion. The Certificate of Completion shall be a conclusive determination of satisfactory
completion of the construction of the improvements required by this Agreement upon the Site and
the Certificate of Completion shall so state. The Certificate of Completion shall be in such form
as to permit it to be recorded in the Recorder's Office of Riverside County and shall be in
substantially the form of Attachment No. 6 hereto and incorporated herein by reference. After
recordation of the Certificate of Completion, all of the conditions, terms and covenants contained
in this Agreement shall remain in full force and effect, except as provided otherwise herein.
If the Agency refuses or fails to fiirmsh the Certificate of Completion described
above after written request from the Participant, the Agency shall, within thirty (30) days of
written request therefor, provide the Participant with a written statement of the reasons the
PUBL:9786_111871B2588.0 7
Agency refused or failed to furnish such Certificate of Completion. The statement shall also
contain Agency's opinion of the actions that the Participant must take to obtain a Certificate of
Completion. If the reason for such refusal is confined to the immediate availability of specific
items of materials for landscaping or minor "punch list" items, the Agency may in its reasonable
discretion issue such Certificate of Completion upon the posting of a bond or an unconditional
letter of credit (in form and substance reasonably acceptable to the Agency and its legal counsel)
by the Participant with the Agency in an amount representing the fair value of the work not yet
completed.
The Certificate of Completion described herein shall not constitute evidence of
compliance with or satisfaction of any obligation of the Participant to any holder of any
mortgage, any insurer of a mortgage securing money loaned to finance the improvements or any
part thereof. The Certificate of Completion issued pursuant to this Section 311 is not notice of
completion as referred to in California Civil Code Section 3093.
IV. [§400] USE OF THE PROPERTY
A. [§401] Uses
The Participant covenants and agrees for itself, its successors, its assigns, and
every successor in interest to the Site or any part thereof, that upon completion of construction
and thereafter, until the expiration date of the Redevelopment Plan, the Participant, such
successors and such assignees, shall not maintain, use or operate the Site as anything other than a
retail center in accordance with the provisions of this Section 401, the Redevelopment Plan, the
Agreement Regarding Covenants to Develop, Use and Maintain the Site (Attachment No. 5) and
this Agreement. No use or operations other than the above -described use shall be allowed on the
Site without the prior written approval of the Agency (which approval the Agency may grant or
deny at its sole discretion) until the expiration date of the Redevelopment Plan.
The covenants established in this Section 401 shall, without regard to technical
classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, the City and any successor in interest to the Site or any part thereof.
B. [§402] Reciprocal Access Requirements
Participant shall require reciprocal easement rights with respect to the retail uses
within the Site to allow for shared parking, access and circulation on the Site, and which
specifies the allocation of responsibility for performing and paying for maintenance
responsibilities and costs for each tenant's parking areas and access roads.
C. [§403] Maintenance of the Site
The Participant covenants and agrees to maintain the improvements, in good
condition conforming to all applicable local laws, and shall keep the Site free from any
accumulation of debris or waste materials. The Participant shall also maintain the landscaping
required to be planted on the Site in a healthy condition in accordance with the approved
landscape plan. To insure Participant's continued maintenance of the improvements required in
PUBL:9786_111871 B2588.0 . 8
this Agreement, Participant agrees to execute the Agreement Regarding Covenants to Develop,
Use and Maintain the Site (Attachment No. 5).. Issuance of a Certificate of Completion by the
Agency shall not affect Participant's obligations under this section.
D. [§404] Rights of Access
After completion of the improvements, the Agency, for itself and for the City and
other public agencies, at their sole risk and expense, reserves the right to enter the Site or any
part thereof at all reasonable times upon not less than twenty-four (24) hours' prior notice except
in emergency situations, and upon the consent of the Participant, for the purpose of construction,
reconstruction, maintenance, repair or service of any public improvements or public facilities
located on the Site. The Participant agrees to cooperate with the Agency to make the Site
available for the Agency's access and inspection, and agrees and acknowledges that if for any
reason the Agency is unable to obtain the Participant's consent to such access the Agency may
obtain an administrative inspection warrant or other appropriate legal or equitable order or
remedy to obtain entry to the Site and/or improvements. Agency shall indemnify and hold
Participant harmless from any costs, claims, damages or liabilities pertaining to any entry, and
shall promptly repair and restore any damage to the Site made as a result of such entry.
E. [§405] Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction
The covenants established in this Agreement and the Agreement Regarding
Covenants to Develop, Use and Maintain the Site (Attachment No. 5) shall, without regard to
technical classification and designation, be binding for the benefit and in favor of the Agency, its
successors and assigns, as to those covenants which are for its benefit. The covenants contained
in Sections 401 through 404 inclusive, of this Agreement shall -remain in effect until the
termination date of the Redevelopment Plan, and the covenants against discrimination contained
in Section 406 herein shall remain in effect in perpetuity.
The Agency is deemed the beneficiary of the terms and provisions of this
Agreement and of the covenants running with the land, for and in its own rights and for the
purposes of protecting the interests of the community and other parties, public or private, in
whose favor and for whose benefit this Agreement and the covenants running with the land have
been provided. The Agreement and the covenants shall run in favor of the Agency, without
regard to whether the Agency has been, remains or is an owner of any land or interest therein in
the Site or in the Project Area. The Agency shall have the right, if the Agreement or covenants
are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in
equity or other proper proceedings to enforce the curing of such breaches to which it or any
other beneficiaries of this Agreement and the covenants may be entitled.
F. [§406] Non-discrimination After Completion of Improvements
The Participant covenants by and for itself and any successors in interest that there
shall be no discrimination against or segregation of any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Site or the improvements, nor
shall the Participant itself or any person claiming under or through it establish or permit any such
MBL:9786_111871 M588.0 9
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site or the
improvements. The foregoing covenants shall run with the land and shall remain in effect in
perpetuity.
The Participant shall refrain from restricting the rental, sale or lease of the Site or
the improvements on the basis of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be
subject to substantially the following non-discrimination or nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and for himself or herself,
his or her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the land herein conveyed, nor shall the grantee himself or herself or any
person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons
claiming under, or through him or her, and this lease is made and accepted
upon and subject- to the following conditions:
"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, ancestry or national origin in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the premises herein leased nor
shall the lessee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
3. In contracts: "There shall be no discrimination against, or segregation of,
any person, or group of persons on account of race, color, creed, religion,
sex, marital status, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall
the transferee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
PUBL:9786_1 1 1871B2588.0 10
The foregoing covenants regarding discrimination shall run with the land and shall
remain in effect in perpetuity.
V. [§500] DEFAULTS AND REMEDIES
A. [§501] Defaults --General
Subject to the extensions of time set forth in Section 603, failure or delay by
either party to perform any term or provision of this Agreement constitutes a default under this
Agreement. A party claiming a default (claimant) shall give written notice of default to the other
party, specifying the nature of the default complained of and referencing the appropriate
section(s) of this Agreement under which such default arises.
Except as may be required to protect against irreparable injury, the claimant shall
not institute proceedings against the other party if the other party, within thirty (30) days from
receipt of such notice, immediately, with due diligence, commences to cure, correct or remedy
such failure or delay and shall complete such cure, correction or remedy within thirty (30) days
from the date of receipt of such notice or if the cure cannot reasonably be completed within thirty
(30) days, that the cure has been commenced and is diligently pursued to completion.
With respect to any mortgage or deed of trust granted by Developer as provided
herein, whenever the Agency shall deliver any notice or demand to Developer with respect to any
breach or default by the Developer hereunder, the Agency shall at the same time deliver to each
holder of record of any mortgage or deed of trust authorized by this Agreement a copy of such
notice or demand, provided that such holder has requested such notice by a separate writing
received by the Agency. No notice of default shall be effective as to the holder unless such
notice is given. Each such holder shall (insofar as the rights of the Agency are concerned) have
the right, at its option, within thirty (30) days after the receipt of the notice, to cure or remedy or
commence to cure or remedy any such default and to add the cost thereof to the mortgage debt
and the lien of its mortgage. In the event possession of the Site (or portion thereof) is required
to effectuate such cure or remedy, the holder shall be deemed to have timely cured or remedied
if it commences the proceedings necessary to obtain possession thereof within thirty (30) days,
diligently pursues such proceedings to completion, and, after obtaining possession, diligently
completes such cure or remedy. Nothing contained in this Agreement shall be deemed to permit
or authorize such holder to undertake or continue the construction or completion of the Developer
improvements (beyond the extent necessary to conserve or protect the improvements or
construction already made) without first having expressly assumed the Developer's obligations to
the Agency by written agreement reasonably satisfactory to the Agency's legal counsel. Any
such holder properly completing such Developer improvements shall be entitled, upon compliance
with the requirements of Section 311 of this Agreement, to a Certificate of Completion (as
therein defined).
KML:9786 111871 B2588.0 11
B. [§502] Legal Actions
1. [§503] Institution of Legal Actions
In addition to any other rights or remedies, and subject to the restrictions
in Section 501, either party 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
Agreement. Such legal actions must be instituted in the Superior Court of the County of
Riverside, State of California, in an appropriate municipal court in that county, or in the Federal
District Court in the Central District of California.
2. [§504] Anulicable Law
The laws of the State of California shall govern the interpretation and
enforcement of this Agreement.
3. [§505] Acceptance of Service of Process
In the event that any legal action is commenced by the Participant against
the Agency, service of process on the Agency shall be made by personal service upon the
Executive Director or in such other manner as may be provided by law.
In the event that any legal action is commenced by the Agency against the
Participant, service of process on the Participant shall be made by personal service on John W.
Koenig or any partner of the Participant, whether made within or without the State of California,
or in such other manner as may be provided by law.
C. [§506] Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this Agreement, the rights and remedies of
the parties are cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of any other rights
or remedies for the same material default or any other material default by the other party.
D. [§507] Inaction Not a Waiver of Default
Any failures or delays by either party in asserting any of its rights and remedies
as to any default shall not operate as a waiver of any default or of any such rights or remedies,
or deprive either such party of its right to institute and maintain any actions or proceedings which
it may deem necessary to protect, assert or enforce any such rights or remedies.
E. [§508] Remedies upon Default
1. [§509] Dom.
If either party defaults with regard to any of the provisions of this
Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting
party in the manner provided in Section 501 hereof. If the default is not cured or commenced to
PUBL:9786_1 1 187 1 B2588.0 12
be cured by the defaulting party within the applicable time period, the defaulting party shall be
liable to the other party for any damages caused by such default.
2. [§510] Specific Performance
If either party defaults with regard to any of the provisions of this
Agreement, the non -defaulting party shall serve written notice of such default upon the defaulting
parry in the manner provided in Section 501 hereof. If the default is not cured by the defaulting
party within the applicable time period, the non -defaulting party at its option may thereafter (but
not before) commence an action for specific performance of the terms of this Agreement.
3. [§511] Termination by the Participant
In the event that Participant is unable to obtain satisfactory financing,
tenant commitments, or it reasonably determines that the project is financially infeasible, or in the
event the Agency does not make payment of Agency Assistance in the manner and condition and
by the date provided in this Agreement, and any such failure shall not be cured within the
applicable time period after written demand by the Participant, then this Agreement may, at the
option of the Participant, be terminated by written notice thereof to the Agency.
4. [§512] Termination by the Agency
Subject to the notice and opportunity to cure requirements of Section 501
hereof, in the event that prior to the expiration of the Term:
(a) The Participant (or any successor in interest) assigns the Agreement
or any rights therein or in the Site in violation of this Agreement; or
(b) There is a change in the ownership of the Participant contrary to
the provisions of Section 107 hereof; or
(c) The Participant fails to obtain a Certificate of Completion for the
improvements as provided in Section 311 hereof by the date set forth in the Schedule of
Performance (Attachment No. 4); or
(d) The Participant is otherwise in default of this Agreement;
then this Agreement and any rights of the Participant or any assignee or transferee in the
Agreement, or arising therefrom with respect to the Agency or the Site, shall, at the option of the
Agency, be terminated by the Agency. From the date of the written notice of termination of this
Agreement by the Agency to the Participant and thereafter this Agreement shall be deemed
terminated and there shall be no further rights or obligations between the parties.
PusL:9786_1 1 is71s2sss.o 13
VI. [§600] GENERAL PROVISIONS
Written notices, demands and communications between the Agency and the
Participant shall be sufficiently given if delivered by hand, sent by overnight delivery service or
telecopy, or dispatched by registered or certified mail, postage prepaid, return receipt requested,
to the principal offices of the Agency and the Participant. Such written notices, demands and
communications may be sent in the same manner to such other addresses as either party may
from time to time designate by mail as provided in this Section 501.
B. [§602] Conflicts of Interest
No member, official or employee of the Agency shall have any personal interest,
direct or indirect, in this Agreement, nor shall any member, official or employee participate in
any decision relating to the Agreement which affects his or her personal interests or the interests
of any corporation, partnership or association in which he or she is directly or indirectly
interested. The Participant warrants that it has not paid or given, and will not pay or give, any
third party any money or other consideration for obtaining this Agreement.
C. [§603] Enforced Delay: Extension of Times of Performance
In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default, and all performance and other dates specified in
this Agreement shall be extended, where delays or defaults are due to: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of transportation; inability to secure
any necessary labor, materials or tools; delays of any contractor, subcontractor or supplier;
governmental restrictions or priority; litigation; inclement weather; acts or omissions of the other
party; or any other causes beyond the control or without the fault of the party claiming an
extension of time to perform. Notwithstanding anything to the contrary in this Agreement, an
extension of time for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if notice by the party
claiming such extension is sent to the other party within thirty (30) days of the commencement or
discovery of the cause.
D. [§604] Nonliability of Officials and Employees of the Agency
No member, official or employee of the Agency or the City shall be personally
liable to the Participant, or any successor in interest, in the event of any default or breach by the
Agency (or the City) or for any amount which may become due to the Participant or its
successors, or on any obligations under the terms of this Agreement.
E. [§605] Amendments to this Agreement
Participant and Agency agree to mutually consider reasonable requests for
amendments to this Agreement which may be made by lending institutions, or Agency's counsel
MBL:9786_11187182588.0 .14
or financial consultants, provided said requests are consistent with this Agreement and would not
substantially alter the basic business terms included herein.
F. [§607] Time of Essence
It is understood and expressly agreed that time is of the essence for the
performance of each and every covenant, condition and obligation of this Agreement.
G. [§608] AttornCys' Fees
If any attorney is engaged by Agency to enforce or defend any provision of this
Agreement as a consequence of any default by the Participant under this Agreement, Participant
shall pay to Agency, immediately upon demand, the amount of all attorneys' fees and costs
incurred by Agency in connection therewith. In the event of any dispute between the parties
hereto arising out of the subject matter of this Agreement, the prevailing party shall be entitled to
recover reasonable expenses, attorneys' fees and costs.
VII. [§700] ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in four (4) duplicate originals, each of which is deemed to be
an original. This Agreement includes pages 1 through _ and Attachments 1 through 6, which
constitutes the entire understanding and agreement of the parties.
This Agreement integrates all of the terms and conditions mentioned herein or incidental
hereto, and supersedes all negotiations or previous agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must be in writing by the appropriate
authorities of the Agency and the Participant, and all amendments hereto must be in writing by
the appropriate authorities of the Agency and the Participant.
In any circumstance where under this Agreement any party is required to approve or
disapprove any matter, approval shall not be unreasonably withheld, conditioned or delayed.
VIII. [§800] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
Participant shall execute and deliver four (4) copies of this Agreement to the
Agency. The Agency must authorize, execute and deliver at least one (1) copy of this Agreement
to Participant on or before forty-five (45) days after the execution and delivery of this Agreement
by Participant or this Agreement shall be void, except to the extent that the Participant shall
consent in writing to a further extension of time for the authorization and delivery of this
Agreement. The effective date of this Agreement shall be the date when it shall have been
approved by the Agency.
PUBL:9796_111871$2588.0 15
IN WITNESS WHEREOF, the Agency and the Participant have signed this
Agreement on the respective dates set forth below.
DATED: / z 2 / f 3
A ST:
ecretary
APPRO -ED AS TO FORM:
Stradling, Yocca, Carlson & Rauth,
Agency Special Counsel
Dated:
LA QUINTA REDEVELOPMENT
AGENCY, a public body corporate and
politic n
1,95ttI/1 "'"'�
�S
"AGENCY"
KOENIG COMPANIES
"PARTICIPANT"
PUBL:9786_1 1 187 1 B2588.0 16
ATTACHMENT NO. 1
SITE MAP
[To Be Inserted]
PUBL:9786_111871B2588.0 1-1
ATTACIDdENT NO. 2
LEGAL DESCRIPTION OF SITE
That land situated in the State of California, County of Riverside, City of La Quinta,
described as follows:
PUBL:9786_111871B2588.0 2-1
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
Scope of development is to be consistent with the conditions of that certain Plot Plan 91-
456 approved by the City Council after a noticed public hearing on April 16, 1991 and any
amendments thereto.
PUBL:9786_111871B2588.0 3-1
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
1. Execution of Agreement by
Agency. The Agency shall
execute this Agreement, and
if approved, shall deliver
one (1) executed copy
thereof to the Participant.
2. Commencement of Construction.
Participant shall commence
construction of the improvements.
I Completion of Construction.
Participant shall complete
construction of the improvements
4. Recordation of Agreement Regard-
ing Covenants (Attachment No. 5).
Record Agreement Regarding
Covenants.
5. Record Certificate of Completion.
Obtain a certificate of occupancy
and Certificate of Completion for the
improvements.
Within forty-five (45)
days after Participant's
delivery to Agency of
four (4) executed copies
of the Agreement.
By April 1, 1995.
Within 12 months
after the commencement of
construction; but not later than April 1,
1996.
Prior to obtaining a Certificate of
Completion.
Prior to obtaining Agency Assistance.
PusL:9786_11187 1 B2588.0 4-1
ATTACHMENT NO. 5
AGREEMENT REGARDING COVENANTS
TO DEVELOP, USE AND MAINTAIN THE SITE
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO )
AND MAIL TAX STATEMENTS TO: )
La Quinta Redevelopment Agency )
78-495 Calle Tampico )
La Quinta, California 92253 )
Attention: Executive Director )
[Space above for Recorder.]
This document is exempt from the payment of a
recording fee pursuant to Government Code
Section 6103.
Signature of declarant or agent determining tax and
exempt from recording fee
AGREEMENT REGARDING COVENANTS TO DEVELOP,
USE AND MAINTAIN
THIS AGREEMENT REGARDING COVENANTS TO DEVELOP, USE AND
MAINTAIN (the "Agreement") is hereby entered into by and between the CITY OF LA
QUINTA, California municipal corporation (the "City"), the LA QUINTA REDEVELOPMENT
AGENCY, a public body corporate and politic (the "Agency"), and KOENIG COMPANIES, a
California corporation, as of the day of , 199_.
RE.Q11ALa
A. The Agency and the Participant have entered into an Owner Participation
Agreement Imposing Covenants Affecting Real Property ("OPA") on , 1993, for the
development of a grocery retail center located on certain real property located in the La Quinta
Redevelopment Project Area No. 1, which is more particularly and legally described on Exhibit
"A" attached hereto and made a part hereof (the "Site"). The OPA is a public record available
for public inspection at the offices of the City Clerk of the City of La Quinta, whose address is
78-495 Calle Tampico, La Quinta, California 92253. The OPA requires that Participant shall
execute, and shall develop, use and maintain the improvements and the landscaping on the Site in
accordance with, this Agreement.
PuBL:9786_111871B2588.0 5-1
B. The City, the Agency, and the Participant desire to set forth herein their
respective rights and obligations and the maintenance standards (including without limitation the
definition of "City Standards") concerning the development, use and maintenance of all the
improvements on site.
NOW, THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
I. [§ 1001 PURPOSE OF THIS AGREEMENT
The purpose of this Agreement is to set forth general development, use, operation
and maintenance standards and obligations of Participant in its maintenance of the improvements
on and within the Site.
II. [§ 2001 PARTIES TO THE AGREEMENT
The City of La Quinta is a municipal corporation. The "City" as used in this
Agreement includes the City of La Quinta and any assignee of or successor to its rights, powers,
and responsibilities.
The La Quinta Redevelopment Agency is a public body corporate and politic of
the State of California. The "Agency" as used in this Agreement includes the La Quinta
Redevelopment Agency and any assignee of or successor to its rights, powers and
responsibilities.
III. [§ 3001 REPRESENTATIVES OF THE PARTIES AND SERVICE OF NOTICES
The representatives of the respective parties who are authorized to administer this
Agreement and to whom formal notices, demands and communications shall be given are as
follows:
City and Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn.: Executive Director
Participant: Koenig Companies
2601 Airport Drive, Suite 240
Torrance, California 90505
Attn.: John W. Koenig
Formal notices, demands and communications to be given hereunder by any party
shall be made in writing and may be effected by personal delivery, telecopy, overnight delivery
service or by registered or certified mail, postage prepaid, return receipt requested.
IV. [§ 4001 COMPLIANCE WITH REDEVELOPMENT PLAN AND USE NON-
DISCRIMINATION COVENANTS
PUBL:9786_1 1 187 1 B2588.0 5-2
Use Covenant. The Participant covenants and agrees for itself, its successors, its assigns
and every successor in interest to the Site, or any part thereof, that during the term, said
Participant; successors and assigns shall [not] maintain, use [and/or] operate the Site [for any
purpose other than] as a grocery retail center in accordance with the OPA, the Redevelopment
Plan and this Agreement. [No use or operations other than the above -described use shall be
allowed on the Site without the prior written approval of the Agency (which approval the Agency
may grant or deny at its sole discretion) until the expiration of the Term.] [Nothing contained
herein or elsewhere in this Agreement shall be deemed or construed as a covenant to operate.]
Non-discrimination After Completion of Improvements. The Participant covenants by and
for itself and any successors in interest that there shall be no discrimination against or segregation
of any person or group of persons on account of race, color, creed, religion, sex, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site or the improvements, nor shall the Participant itself or any person claiming
under or through it establish or permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees of the Site or the improvements. The foregoing
covenants shall run with the land and shall remain in effect in perpetuity.
The Participant shall refrain from restricting the rental, sale or lease of the Site or
the improvements on the basis of race, color, creed, religion, sex, marital status, handicap,
national origin or ancestry of any person. All such deeds, leases or contracts shall contain or be
subject to substantially the following non-discrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself,
his or her heirs, executors, administrators and assigns, and all persons
-claiming under or through them, that there shall be, no discrimination
against or segregation of, any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the land herein conveyed, nor shall the grantee himself or herself or any
person claiming under or through him or her, establish or permit any such
practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted
upon and subject to the following conditions:
"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, ancestry or national origin in the leasing, subleasing, transferring,
use, occupancy, tenure or enjoyment of the premises herein leased nor
shall the lessee himself or herself or any person claiming under or through
him or her, establish or permit any such practice or practices of
PUBL:9786-1 1 187 1 B2588.0 5-3
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
C. In contracts: "There shall be no discrimination against, or segregation of,
any person, or group of persons on account of race, color, creed, religion,
sex, marital status, ancestry or national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall
the transferee himself or herself or any person claiming under or through
him or her, establish or'permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
The foregoing covenants regarding discrimination shall run with the land and shall
remain in effect in perpetuity.
V. R Soo] PERFORMANCE OF MAINTENANCE
A. Participant shall maintain in accordance with City Standards, as hereinafter
defined, the improvements and landscaping on the Site. Said improvements shall include, but not
be limited to, buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping,
architectural elements identifying the Site and any and all other improvements on the Site.
B. To accomplish the maintenance, Participant shall either staff or contract with and
hire licensed and qualified personnel to perform the maintenance work, including the provision of
labor, equipment, materials, support facilities and any and all other items necessary to comply
with the requirements of this Agreement.
C. CITY STANDARDS
The following standards ("City Standards") shall be complied with by Participant
and its maintenance staff, contractors or subcontractors:
1. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy, natural appearance and safe road
conditions and visibility and optimum irrigation coverage; replacement, as needed, of all plant
materials; control of weeds in all planters, shrubs, lawns, ground covers or other planted areas;
and staking for support of trees.
2. Clean-up maintenance shall include, but not be limited to: maintenance of
all sidewalks, paths and other paved areas in clean and weed -free condition; maintenance of all
such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal
of all trash, litter and other debris from improvements and landscaping prior to mowing;
clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris
are properly disposed of by maintenance workers.
PUBL:9786_111871B2588.0 5-4
3. All maintenance work shall conform to all applicable federal and state
Occupation Safety and Health Act standards and regulations for the performance of maintenance.
4. Any and all chemicals, unhealthful substances, and pesticides used in and
during maintenance shall be applied only by persons possessing valid California applicators
licenses, and in strict accordance with all governing regulations. Precautionary measures shall be
employed recognizing that all areas are open to public access.
S. The improvements on the Site shall be maintained in conformance and in
compliance with the approved Site construction and architectural plans and design scheme, as the
same may be amended from time to time with the approval of the City (and Agency, if such
approval is required) and reasonable commercial development maintenance standards for retail
shopping centers, including but not limited to: painting and cleaning of all exterior surfaces and
other exterior facades comprising all improvements.
VI. [§ 6001 FAILURE TO MAINTAIN IMPROVEMENTS
In the event Participant does not maintain the Site improvements in the manner set
forth herein and in accordance with City Standards, Agency and/or City shall have the right to
maintain such improvements, or to contract for the correction of such deficiencies, after written
notice to Participant. However, prior to taking any such action, Agency agrees to notify
Participant in writing if the condition of said improvements do not meet with City's Standards
and to specify the deficiencies and the actions required to be taken by Participant to cure the
deficiencies. Upon notification of any maintenance deficiency, Participant shall have thirty (30)
days within which to correct, remedy or cure the deficiency. If the written notification states the
problem is urgent relating to public health and safety, theft Participant shall have forty-eight (48)
hours to rectify the problem.
In the event Participant fails to correct, remedy or cure or has not commenced
correcting, remedying or curing such maintenance deficiency after notification and after the
period of correction has lapsed, then City and/or Agency shall have the right to maintain such
improvements. Participant agrees to pay Agency such charges and costs. Until so paid, the
Agency shall have a lien on the Site for the amount of such charges or costs, which lien shall be
perfected by the recordation of a "Notice of Claim of Lien" against the Site. Upon recordation
of a Notice of a Claim of Lien against the Site, such lien shall constitute a lien on the fee estate
in and to the Site prior and superior to all other monetary liens except: (i) all taxes, bonds,
assessments and other levies which, by law, would be superior thereto; (ii) the lien or charge of
any mortgage, deed of trust or other security interest then of record made in good faith and for
value, it being understood that the priority of any such lien for costs incurred to comply with this
Agreement shall date from the date of the recordation of the Notice of Claim of Lien. Any such
lien shall be subject and subordinate to any lease or sublease of the interest of Participant in the
Site or any portion thereof and to any easement affecting the Site or any portion thereof entered
into at any time (either before or after) the date of recordation of such a Notice. Any lien in
favor of the Agency created or claimed hereunder is expressly made subject and subordinate to
any mortgage or deed of trust made in good faith and for value, recorded as of the date of the
recordation of the Notice of Claim of Lien, and no such lien shall in any way defeat, invalidate
or impair the obligation or priority of any such mortgage or deed of trust, unless the mortgage or
PUBL:9786_111871 B2588.0 5-5
beneficiary thereunder expressly subordinates his interest, of record, to such lien. No lien in
favor of the Agency created or claimed hereunder shall in any way defeat, invalidate or impair
the obligation or priority of any lease, sublease or easement unless such instrument is expressly
subordinated to such lien. Upon foreclosure of any mortgage or deed of trust made in good faith
and for value and recorded prior to the recordation of any unsatisfied Notice of Claim of Lien,
the foreclosure -purchaser shall take title to the Site free of any lien imposed by the Agency that
has accrued up to the time of the foreclosure sale, and upon taking title to the Site, such
foreclosure -purchaser shall only be obligated to pay costs associated with this Agreement
accruing after the foreclosure -purchaser acquires title to the Site. If the Site is ever legally
divided with the written approval of the Agency and fee title to various portions of the Site is
held under separate ownerships, then the burdens of the maintenance obligations set forth herein
and in this Agreement and the charges levied by the Agency to reimburse the Agency for the cost
of undertaking such maintenance obligations of Participant and its successors and the lien for
such charges shall be apportioned among the fee owners of the various portions of the Site under
different ownerships according to the square footage of the land contained in the respective
portions of the Site owned by them. Upon apportionment, no separate owner of a portion of the
Site shall have any liability for the apportioned liabilities of any other separate owner of another
portion of the Site, and the lien shall be similarly apportioned and shall only constitute a lien
against the portion of the Site owned in fee by the owner who is liable for the apportioned
charges levied by the Agency and secured by the apportioned lien and against no other portion of
the Site. Participant acknowledges and agrees City and Agency may also pursue any and all
other remedies available in law or equity. Participant shall be liable for any and all attorneys'
fees and other legal costs or fees incurred in collecting said maintenance costs.
VII. [§ 7001 COMPLIANCE WITH LAW
Participant shall comply with all local, state and federal laws relating to the uses
of or condition of the Site. Local laws for the purposes of this section shall include only those
ordinances which are nondiscriminatory in natare and applicable to the public welfare, health,
safety and aesthetics. If any new local laws relating to uses of or condition of the improvements
create a condition or situation that constitutes a lawful nonconforming use as defined by local
ordinance with respect to the Site or any portion thereof, then so long as the lawful
nonconforming use status remains in effect (i.e., until such lawful status is properly terminated
by amortization as provided for in the new local law or otherwise), Participant shall be entitled to
enjoy the benefits of such lawful nonconforming use pursuant to the lawful nonconforming uses
ordinance.
VIII. [§ 8001 COVENANTS RUN WITH THE LAND
The improvements and the development, use, operation and maintenance thereof
touch and concern the Site and inure to the benefit of any and all present or successive owners of
the Site. Therefore, whenever the word "Participant" is used herein, it shall include the owner
as of date of execution of this Agreement, and any and all successive owners or assigns of the
Site, and the provisions hereof are expressly binding upon all such successive owners or assigns,
and the parties agree all such provisions shall run with the land. Agency or City shall cause a
fully executed copy of this Agreement to be recorded in the Office of the Los Angeles County
Recorder. Notwithstanding the foregoing, in the event Participant or its successors or assigns,
shall convey its fee interest in all or any portion of the Site, the conveying owner shall be free
MBL:9786_11187I B2588.0 5-6
from and after the date of recording such conveyance of all liabilities, respecting the performance
of the restrictions, covenants or conditions contained in this Agreement thereafter to be
performed with respect tothe'Site, or any part thereof, it being intended that the restrictions,
covenants and conditions shall be binding upon the record owners of the Site only during such
time as they own the same, provided that the conveying owner shall remain liable for any actions
prior to the date of the conveyance.
VIII. R 10001 INDEMNIFICATION
Participant agrees to protect, defend, indemnify and hold harmless City and
Agency and their elective and appointive boards, officers, agents and employees from any and all
claims, liabilities, expenses or damages of any nature, including reasonable attorney fees, (a) for
injury to, or death of, any person, and for injury to any property, including consequential
damages of any nature resulting therefrom, arising out of or in any way connected with the
performance of this Agreement by Participant or its agents, servants, employees or contractors,
but not from (i) the negligence or intentional acts of the City or Agency, or their agents,
servants, employees or contractors in connection with supervision or direction of the work, or
(ii) third parties unrelated to Participant or its agents, servants, employees or contractors, but not
by the City or Agency or their respective agents, servants, employees or contractors and (b) from
violation of any statute, law regulation or other legal requirement concerning a safe place for
employment of workers by Participant or its agents, servants, employees or contractors, but not
by (i) the City or the Agency or their respective agents, servants, employees or contractors or
(ii) third parties unrelated to Participant or its agents, servants, employees or contractors.
Participant shall comply with all of the provisions of the Workers' Compensation
Insurance and Safety in Employment laws of the State of California, including the applicable
provisions of Divisions 4 and 5 of the California Labor Code and all amendments thereto and all
similar state, federal or local laws applicable; and shall indemnify and hold harmless City and
Agency from and against all claims, liabilities, expenses, damages, suits, actions, proceedings
and judgments of every nature and description, including reasonable attorneys' fees, presented,
brought or recovered against City or Agency, for or on account of any liability under any of said
laws which may be incurred by reason of work performed under this Agreement by Participant or
its agents, servants, employees, contractors, but not by the sole acts of City and/or the Agency or
if available,their respective agents, servants, employees or contractors.
City and Agency do not, and shall not, waive any rights against Participant which
they may have by reason of the aforesaid hold harmless agreements because of the acceptance by
City or the deposit with the City by Participant of any insurance policies or certificate of
insurance purporting to indemnify for the aforesaid losses. The aforesaid hold harmless
agreements by Participant shall apply to all liabilities, claims, expenses and damages of every
kind, including but not limited to reasonable attorney fees, suffered or alleged to have been
suffered, by reason of the aforesaid operations by Participant or any of its agents, servants,
employees or contractors, regardless of whether or not such insurance policies are applicable.
Similarly, the City and the Agency shall protect, defend, indemnify and hold
harmless Participant, its successors and assigns, and/or if available, their respective partners,
boards, officers, agents and employees from any and all claims, liabilities, expenses or damages
of any nature, including reasonable attorney's fees, (a) for injury to, or death of, any person and
rusL:9786_1 1 187 1 B2588.0 5-7
for injury to any property, including consequential damages of any nature resulting therefrom,
arising out of or in any way connected with the acts or inactions taken by the City and/or the
Agency and/or its officers, employees, agents and representatives pursuant to the terms of this
Agreement, but not the negligence or intentional acts of Participant, or its partners, agents,
servants, employees or contractors; and (b) from violation of any statute, law, regulation or other
legal requirement concerning a safe place for employment of workers by the City and/or the
Agency, or their respective agents, servants, employees or contractors or by (i) Participant or its
agents, servants, employees or contractors or (ii) third parties unrelated to the City or Agency or
their respective agents, servants, employees or contractors.
The City and/or the Agency shall comply with all the provisions of the Workers'
Compensation Insurance and Safety and Employment Laws of the State of California, including
the applicable provisions of Divisions 4 and 5 of the California Labor Code an all amendments
thereto, and all similar state, federal or local laws applicable; and shall indemnify and hold
harmless Participant and its successors and assigns, from and against any and all claims,
liabilities, expenses, damages, suits, actions, proceedings and judgments of every nature and
description, including reasonable attorneys' fees, presented, brought or recovered against
Participant or its successors and assigns, for or on account of any liability under any of said laws
which may be incurred by reason of any work performed under this Agreement by the City
and/or Agency, or their respective agents, servants, employees or contractors, but not by
(i) Participant or its agents, servants, employees or contractors or (ii) third parties unrelated to
the City or Agency or their respective agents, servants, employees or contractors.
Participant or its successors or assigns do not, and shall not, waive any rights
against the City and/or the Agency which it (they) may have by reason of the aforesaid hold
harmless agreement because of any insurance policies or certificates of insurance purporting to
indemnify for the aforesaid losses. The aforesaid hold harmless agreement by the City arid/or the
Agency shall apply to all liabilities, claims, expenses and damages of every kind, including, but
not limited to, reasonable attorney's fees, suffered or alleged to have been suffered, by reason of
the aforesaid operations by the City and/or the Agency, or their respective agents, servants,
employees or contractors, regardless of whether or not such insurance policies are applicable.
IX. [§ 1100] WORKERS COMPENSATION INSURANCE REQUIREMENTS
Participant shall not commence work under this contract until it has obtained all
insurance required herein, nor shall Participant allow any subcontractor to commence work on its
subcontract until all similar insurance required of the subcontractor shall have been so obtained
and approved. Participant shall submit to the Agency evidence of all required insurance prior to
commencement of work and upon request of the Agency thereafter.
Failure of Participant to supply and failure of City or Agency to secure and/or
approve specified insurance shall not alter or invalidate this Agreement.
Participant shall obtain and maintain during the life of this Agreement workers'
compensation insurance and if any work is sublet by Participant, then Participant shall require the
subcontractor similarly to provide workers' compensation insurance. Participant agrees to
indemnify City and Agency for any damages resulting to it from failure of either Participant or
any subcontractor to obtain or maintain such insurance.
PUBL:9786-111871 B2588.0 5-8
If any work is sublet by the City and/or the Agency, then the City and/or the
Agency shall contractually require the subcontractor to provide workers' compensation insurance.
The City and/or Agency agree to indemnify Participant and/or its successors and assigns for any
damages resulting to it from failure of either the City or the Agency or any subcontractor to
obtain or maintain such insurance.
X. [§ 12001 BODILY INJURY AND SITE DAMAGE INSURANCE
REQUIREMENTS
The Participant shall defend, assume all responsibility for and hold the Agency
and the City and their officers, employees and agents, harmless from, all claims or suits for, and
damages to, property and injuries to persons, including accidental death (including attorneys fees
and costs), which may be caused by any of the Participant's activities under this Agreement,
whether such activities or performance thereof be by the Participant or anyone directly or
indirectly employed or contracted with by the Participant and whether such damage shall accrue
or be discovered before or after termination of this Agreement. The Participant shall take out
and maintain in effect a comprehensive liability policy in the amount of Two Million Dollars
($21,000,000) combined single limit policy, including contractual liability, as shall protect the
Participant, City and Agency from claims for such damages.
The Participant shall furnish a certificate of insurance countersigned by an
authorized agent of the insurance carrier on a form of the insurance carrier setting forth the
general provisions of the insurance coverage. This countersigned certificate shall name the City
and the Agency, and if available their respective officers, agents, and employees, as additional
insureds under the policy. The certificate by the insurance carrier shall contain a statement of
obligation on the part of the carrier to notify City and the Agency of any material change,
cancellation or termination of the coverage at least thirty (30) days in advance of the effective
date of any such material change, cancellation or termination. Coverage provided hereunder by
the Participant shall be primary insurance and not contributing with any insurance maintained by
the Agency or City, and the policy shall contain such an endorsement. The insurance policy or
the certificate of insurance shall contain a waiver of subrogation for the benefit of the City and
the Agency.
M. [§ 13001 WAIVER
Failure or delay by either party to perform any term or provision of this
Agreement constitutes a default under this Agreement. The aggrieved party shall give written
notice of the default to the party in default as set forth in Section 300 hereof. The defaulting
party must within a reasonable time commence to cure, correct or remedy such default, and shall
complete such cure, correction or remedy with reasonable and due diligence, and during such
period or curing shall not be in default.
The waiver by one party of the performance of any covenant, condition or
promise shall not invalidate this Agreement nor shall it be considered a waiver by such party of
any other covenant, condition or promise hereunder. The exercise of any remedy shall not
preclude the exercise of other remedies City, Agency or Participant may have at law or at equity.
ML:9786_11187 ( B2588.0 5-9
XII. [§ 14001 MODIFICATION
This Agreement may be modified only by subsequent mutual written agreement
executed by Participant, Agency and City.
XIII. [§ 15001 ATTORNEY'S FEES
In the event of litigation arising out of any breach of this Agreement, the
prevailing party shall be entitled to recover reasonable costs and attorney's fees.
CITY OF LA QUINTA, a mu . ipal corporation
Dated: 12 21 cj 3 By;
(113
MAYO
A T:
ity Clerk
APPROVED AS TO FORM:
Dated: 2 2 / 5 ?J
"CITY"
LA QUINTA REDEVELOPMENT AGENCY, a
public body corporate and politic
By:
Ch
"AGENCY"
PUBL:9786_11 ls71B25as.o 5-10
APPROVED AS TO FORM:
Stradling, Yocca, Carlson & Rauth,
Special Counsel to the Agency
KOENIG COMPANIES, a California
corporation
By: w .
Dated: Its: _
PuaL:9786_111871 M588.0 5-11
ATTACHMENT NO. 6
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
KOENIG COMPANIES )
[Space above for Recorder.]
This document is exempt the payment of a recording fee
pursuant to Government Section 6103.
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made by the LA
QUINTA REDEVELOPMENT AGENCY, a public body corporate 3nd politic (the "Agency"),
in favor of KOENIG COMPANIES, a (he "Participant").
RECITALS
A. The Agency and the Participant have entered into that certain Owner Participation
Agreement (the "OPA") dated , 1993 concerning the develo ment of certain real property
situated in the City of La Quinta, California as more fully described ' Exhibit "A" attached
hereto and made a part hereof.
B. As referenced in Section 311 of the OPA, the Agency] is required to furnish the
Participant or its successors with a Certificate of Completion upon mpletion of construction and
development of the improvements, which certificate shall be in such -as to permit it to be
recorded in the official records of Riverside County. This Certificate of Completion is required
to be conclusive determination of satisfactory completion of the cons ction and development
required by the OPA.
C. The Agency has conclusively determined that such co truction and development
has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies follows:
1. The improvements to be constructed by Participant h ve been fully and
satisfactorily completed in conformance with the OPA and the Agr ment Regarding Covenants
to Develop, Use, Maintain and Operate recorded in Instrument No.
2. This Certificate of Completion shall not constitute evidence of compliance with or
satisfaction of any obligation of the Participant -to any holder of any mortgage, or any insurer of a
mortgage loaned to finance the improvements, or any part thereof.
PuBL:9786_111871 W.588.0 6-1
3. This Certificate of Completion is not a notice of completion as referred to in
California Civil Code Section 3093.
IN WITNESS WHEREOF, the Agency has executed this certificate this
day of , I9_.
LA QUINTA REDEVELOPMENT AGENCY, a
public body corporate and politic
By:
Its:
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
Stradling, Yocca, Carlson & Rauth,
Agency Special Counsel
The undersigned Participant accepts the Site subject to the conditions and covenants
hereinabove set forth.
KOENIG COMPANIES, a California corporation
By:
Dated: Its:
PUBL:9786_I11871B2588.0 6-2
EXHIBIT "A"
LEGAL DESCRIPTION
That land situated in the State of California, County of Riverside, City of La Quinta,
described as follows:
[To Be Inserted]
PUBL:9786_111871B2588.0 6-3
State of California
ss.
County of
On , 199_, before me,
(nine, tide of officer, e.g., Jane Doe, Notary Public")
personally appeared
(nanw(s) of signer(s))
❑ personally known to me —OR-
0 proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity/ies, and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which person(s)
acted, executed the instrument.
Witness my hand and official seal.
Capacity claimed by signer:
❑ Individual
❑ Corporate Officer(s):
❑ Partner(s):
❑ General ❑
❑ Attorney -in -fact
❑ Trustee(s)
❑ Guardian/Conservator
❑ Other:
Limited
(Signature of Notary)
(This section is OP77ONAL.)
Signer is representing:
mmne of persons or entity m
Attention Notary: Although the information requested below is OPTIONAL, it could prevent
fraudulent attachment of this certificate to an unauthorized document.
THIS CERTIFICATE Title or Type of Document
MUST BE ATTACHED
TO THE DOCUMENT Number of Pages Date of Document.
DESCRIBED AT RIGHT: Signer(s) Other than Named Above
wat,:9786_111871 M588.0 6-4