KSL & Peters/Perimeter Wall 98ORIGINAL
TRIPARTY AGREEMENT RE PERIMETER WALL, LANDSCAPING
AND BUILDING PERMITS
This Agreement i� made as of this 24th day of November, 1998 ("Agreement") by
and among KSL Recreation Corporation and KSL Land Corporation, Delaware corporations
(collectively and/or individually; "KSL"), Capital Pacific Holdings, LLC, a Delaware limited
liability company (successor in interest to Capital Pacific Holdings, Inc., a Delaware corporation
[formerly known as J.M. Peters Company, Inc.]) ("CPH"), American Motorists Insurance
Company ("AMIC") and the City of La Quinta (the "City"), with reference to the matters
described below.
RECITALS:
A. In or around September, 1989, KSL's predecessor -in -interest, Landmark
Land Company of California, Ioc. ("Landmark"), and J.M. Peters Company, Inc., a Nevada
corporation, predecessor -in -interest to CPH ("Peters"), entered into a Real Estate Purchase
Agreement (as amended, the "Purchase Agreement") wherein Peters purchased a portion of
approximately two hundred twenty-three (223) acres of certain real property located in Riverside
County, California for the purpose of subdividing the land and erecting residential units. CPH is
the successor -in -interest to Peters and has assumed the obligations of Peters.
B. On April i,30, 1990, Landmark, Peters and the City entered into that certain
Subdivision Improvement Agreement (the "Subdivision Improvement Agreement") which
governs, among other things, the construction and installation of certain improvements pursuant
to the final subdivision map of Tract No. 24890-1 in the City. Pursuant to the Subdivision
Improvement Agreement, certaijn obligations were to be performed, including the construction of
the perimeter wall and lot landscaping as more particularly set forth in the Subdivision
Improvement Agreement. Pursuant to the Subdivision Improvement Agreement, performance
and payment bonds were to be Furnished to the City "to assure the faithful performance" of the
Subdivision Improvement Agreement and to "assure the payment of the cost of labor and
materials supplied to construct the required improvements," respectively.
C. In or around July 1993, Landmark and Peters entered into that certain
Option Agreement (the "Option Agreement") and Landmark granted to Peters an option to
purchase certain real property.
D. On June 27, 1997, the City filed an action entitled City of La Quinta v.
J.M. Peters Company, Inc., et al., Case No. 002597 (the "City Lawsuit"), in the Superior Court of
the State of California for the County of Riverside, alleging breach of the Subdivision
Improvement Agreement and seeking specific performance, declaratory relief and recovery under
a performance bond related to construction of the perimeter wall and perimeter landscaping
improvements (the "Perimeter Improvements"). For purposes of this Agreement, the parties
agree that the term "Perimeter Improvements" excludes any drainage improvements related to the
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construction of the perimeter wall and perimeter landscaping or otherwise. On July 1, 1997,
KSL Recreation Corporation filed an action entitled KSL Recreation Corporation v Capital
Pacific Holdings, Inc., Case No.1002642 (the "KSL/CPH Lawsuit"), in the Superior Court of the
State of California for the County of Riverside, alleging, among other things, breach by CPH of
its obligations under the Subdivision Improvement Agreement and the Option Agreement. On
July 31, 1997, CPH filed a cross complaint in the City Lawsuit and the KSL/CPH Lawsuit,
alleging, among other things, breach by KSL of certain of its obligations under the Subdivision
Improvement Agreement, the Purchase Agreement and the Option Agreement. The City Lawsuit
and the KSL/CPH Lawsuit were! consolidated on July 25, 1997.
E. The City has refused to issue to KSL or CPH certain building permits to
allow KSL or CPH (or their successors and assignees) to begin or complete construction of the
homes on the property owned by KSL and CPH within the Citrus Subdivision (the "KSL
Property" and the "CPH Property," respectively) until such time as the Perimeter Improvements
(including the bonding requirements) are satisfied by either KSL or CPH. Consequently, KSL
and CPH are unable to construct homes on the KSL Property or the CPH Property and have lost,
or are in imminent danger of losing, sales to competing merchant builders in the area.
F. On October 22, 1997, KSL and the City entered into that certain
Agreement Re Perimeter Wall, Landscaping and Building Permits (the "KSL/City Agreement")
pursuant to which KSL agreed to post security for completion of a portion of the Perimeter
Improvements and to construct a portion of the perimeter wall in consideration of the issuance of
150 building permits by the City. On July 27, 1998, CPH and the City entered into that certain
Agreement Re Perimeter Wall, Landscaping and Building Permits (the "CPH/City Agreement")
pursuant to which CPH agreed to pay $109,560 to the City, applicable toward CPH's obligation
pertaining to certain perimeter improvements and landscaping requirements, in consideration of
the issuance of 33 building permits by the City.
G. To date, 41though additional Perimeter Improvements have been
constructed by and additional security has been posted by KSL, neither the construction of the
perimeter wall nor installation of lot landscaping has been completed. KSL contends
construction and completion of the Perimeter Improvements and the posting of securitiesibonds
to secure the completion of the Perimeter Improvements are solely the obligations of
Peters/CPH, and CPH contends that the construction and completion of the Perimeter
Improvements and the posting of the securities/bonds securing the completion of the Perimeter
Improvements are solely the obligations of KSL.
H. CPH has; and the City represents and warrants that CPH has, constructed
all of the on -site street improvements required by and/or with respect to Tract Map 24890-1 and
has done so in accordance with',the conditions of approval of Tract Map 24890-1 (the "Street
Improvements"), and that no f trtther Street Improvements or any other work with respect thereto
remains to be done..
I. The parties to this Agreement have concluded that it is in the best interests
of the parties to allow for the prompt commencement of the Perimeter Improvements in
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accordance with the terms and conditions set forth below, and to provide for the settlement and
dismissal with prejudice by the City of the City Lawsuit, while KSL and CPH reserve all rights,
remedies, claims, defenses and arguments they may have with respect to one another, and now
enter into this Agreement to memorialize their agreement with respect to the City Lawsuit.
NOW, THEREFORE, pursuant to the mutual desires set forth above and in
consideration of the mutual covenants and conditions set forth below and without any admission
of any kind, or the waiver of any rights, remedies, claims, defenses and arguments except as
otherwise expressly set forth hereein, the parties hereto enter into the following agreement:
AGREEMENT:
PerimeterjImprovements and Street Improvements.
(a) Acknowledging that the City will not issue any additional building
permits to KSL or CPH without completion of the Perimeter Improvements, and desiring to
mitigate their potential damages and subject to the payment to KSL of the CPH Payment (as
defined below), KSL will build pr complete, or cause to be built or completed, the Perimeter
Improvements (including, but not limited to, wall construction, sidewalk construction and
installation of landscape irrigation and full landscaping) located along Avenue 52 and Jefferson
Street ("KSL Perimeter Improvemments") as described in the Subdivision Improvement
Agreement and which remain incomplete, as more specifically depicted on Exhibit "A" attached
hereto and by this reference made a part hereof, but shall have no further obligations to the City
with respect thereto. In consideration of the foregoing, CPH agrees to pay to KSL the sum of
Ninety Five Thousand Dollars ($95,000.00) simultaneously with its execution of this Agreement
(the "CPH Payment"). The CPH Payment shall be applied solely to the construction of the KSL
Perimeter Improvements.
(b) Acknowledging that the City will not issue any additional building
permits to KSL or CPH without ,completion of the Perimeter Improvements, and desiring to
mitigate their potential damages CPH will build or complete, or cause to be built or completed,
the Perimeter Improvements (including, but not limited to, wall construction, sidewalk
construction and installation of landscape irrigation and full landscaping) located along Calle
Rondo, Calle Tampico and ParkAvenue ("CPH Perimeter Improvements") as described in the
Subdivision Improvement Agreement and which remain incomplete, as more specifically
depicted on Exhibit "A" attached hereto and by this reference made a part hereof, but shall have
no further obligations, other than the CPH Payment or as otherwise set forth herein, to the City
with respect thereto.
(c) The portions of the Perimeter Improvements identified in
Subsections I (a) and 1(b) shall be built substantially in accordance with the conditions placed on
the construction of the wall and associated landscaping in the original approvals, as those
conditions may have been amended from time to time, and, subject to obtaining agreements in
writing from the applicable homeowners association(s) to accept conveyance of, and maintain,
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such Perimeter Improvements (t�e "Association Approval"), according to the timeline set forth in
Exhibit "B" attached hereto (the "Timeline"). Notwithstanding the foregoing, or any other
provision in this Agreement or t e Exhibits, all portions of the Perimeter Improvements
identified in Subsections 1(a) and 1(b) shall be completed no later than thirty-six (36) months
from the date of this Agreement
2.
(a) To secure completion of the KSL Perimeter Improvements and
subject to the payment to KSL of the CPH Payment, KSL shall obtain a letter of credit, for the
benefit of the City, in the amount of Seven Hundred Seventy -Nine Thousand Seven Hundred and
Forty Seven Dollars ($779,747. 0) the issuer of which shall be FirstBank, N.A. (the "KSL
LOU). The KSL LOC shall be obtained and delivered to the City no later than ten (10) business
days after execution of this Agreement by all parties.
(b) e KSL LOC can be drawn upon only in the event of a KSL
Default as defined and describe in Section 4 below.
(c) lcompletion of 50% of the KSL Perimeter Improvements, the
KSL LOC shall be reduced to�)on
amount of Six Hundred Thirty -Eight Thousand Eight Hundred
and Fifty Eight Dollars ($638,8�8.00) ; thereafter, the KSL LOC shall be further reduced in
accordance with and to the extent of the amount of work done, but to not less than One Hundred
Ninety -One Thousand Six Hundred and Fifty Eight Dollars ($191,658.00) so long as bonds are
posted for the sum representing Ithe difference between $638,858.00 and the amount to which the
KSL LOC is reduced. That $63�,858.00 of security (in a combination of the KSL LOC and/or
bonds, in KSL's sole discretion)I shall be maintained for a period of 90 days after recordation of a
notice of completion for the KSt Perimeter Improvements and the City's acceptance of the KSL
Perimeter Improvements (which the City shall be reasonably obligated to accept). For a period
of one year after recordation of said notice of completion, a letter of credit (either a new
instrument or a modification of the KSL LOC) or bond in favor of the City, in the amount of
$191,658.00 shall be posted and maintained for the guarantee and warranty of the KSL Perimeter
Improvements against any defective work or labor done or defective materials furnished, and any
security being held in excess of that $191,658.00 may be released (assuming no liens or similar
claims have been filed). The Perimeter Improvement bonds posted as of the date of this
Agreement shall be, and are hereby, exonerated, and the parties shall take such actions as are
necessary and appropriate to ca>iise and complete said exoneration in accordance with Section
3(b) below..
(d) Tb secure completion of the CPH Perimeter Improvements, CPH
shall obtain a letter of credit, for the benefit of the City, in the amount of One Hundred Eighty -
One Thousand Eight Hundred gighty-Four Dollars ($181,884.00), the issuer of which will be
acceptable to the City, which agceptance shall not be unreasonably withheld (the "CPH LOC").
The CPH LOC shall be obtained and delivered to the City no later than ten (10) business days
after execution of this Agreement by all parties. In the alternative, CPH may elect to post cash
with the City in the event of the CPHLOC, in which case all references hereafter to the CPHLOC
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shall refer to the cash posted by QPH and all references in the Agreement to reductions to the
CPHLOC shall be deemed to re�er to returns of the proportionate amount of the posted cash to
CPH.
(e) The CPH LOC can be drawn upon only in the event of a CPH
Default as defined and described in Section 4 below.
(f) Upon completion of 50% of the CPH Perimeter Improvements, the
CPH LOC shall be reduced to the amount of One Hundred Forty Five Thousand Seven Hundred
Twenty -Two Dollars ($145,722.00); thereafter, the CPH LOC shall be further reduced in
accordance with and to the extent of- the amount of work done, but to not less than Forty Three
Thousand Seven Hundred and S venteen Dollars ($43,717.00) so long as bonds are posted for
the sum representing the difference between $145,722.00 and the amount to which the CPH LOC
is reduced. That $145,722.00 o security (in a combination of the CPH LOC and/or bonds, in
CPH's sole discretion) shall be maintained for a period of 90 days after recordation of a notice of
completion for the CPH Perimeter Improvements and the City's acceptance of the CPH Perimeter
Improvements (which the City s�all be reasonably obligated to accept). For a period of one year
after recordation of said notice cIf completion, a letter of credit (either a new instrument or a
modification of the CPH LOC) or bond in favor of the City, in the amount of Forty -Three
Thousand Seven Hundred Dollars ($43,717.00) shall be posted and maintained for the guarantee
and warranty of the CPH Perimeter Improvements against any defective work or labor done or
defective materials furnished, and any security being held in excess of that $43,717.00 may be
released (assuming no liens or similar claims have been filed). The Perimeter Improvement
bonds posted as of the date of this Agreement shall be, and are hereby, exonerated, and the
parties shall take such actions as are necessary and appropriate to cause and complete said
exoneration in accordance with Section 3(b) below.
(g) A provals of the construction of the portions of the wall and
associated landscaping describe in Subsections 1(a) and 1(b) shall be obtained in accordance
with the typical approval proces for such walls within the City and such other approvals as may
be required for such constructio . Once the security, as described in Subsections 2(a) and 2(b)
has been posted with the City, K.SL and CPH shall commence and reasonably pursue to
completion the obtaining of their respective approvals necessary for construction of their
respective Perimeter Improvements described in Subsections 1(a) and 1(b) in accordance with
the Timeline. Any delay in obtaining the necessary approvals beyond that scheduled in Exhibit
"B" hereto which is not solely the fault of KSL shall serve to extend the Timeline with respect to
the KSL Perimeter Improvements by the amount of such delay. Any delay in obtaining the
necessary approvals beyond that scheduled in Exhibit "B" hereto which is not solely the fault of
CPH shall serve to extend the Timeline with respect to the CPH Perimeter Improvements by the
amount of such delay. Additio ally, if KSL's construction of the KSL Perimeter Improvements
is delayed in any form or fashio , other than through the fault of KSL, whether such delay be
caused by any other person or eI ity, by labor disputes, fire, delay in deliveries, unavoidable
casualties, failure to obtain Association Approval or other causes beyond KSL's control, or by
any other causes which may justify a delay, then the Timeline within which the construction is to
be completed shall be extended �for the time of such delay. Additionally, if CPH's construction of
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the CPH Perimeter Improvemen s is delayed in any form or fashion, other than through the fault
of CPH, whether such delay be aused by any other person or entity, by labor disputes, fire,
delay in deliveries, unavoidable casualties, failure to obtain Association Approval or other causes
beyond CPH's control, or by anyl other causes which may justify a delay, then the Timeline
within which the construction is jto be completed shall be extended for the time of such delay.
(h) I ediately upon KSL's posting of the KSL LOC , the City will
release all building permits for t e residential lots owned or previously owned by KSL within the
Citrus Subdivision (Tract Nos. 24889, 24890-1, 24890-2, 24890-3, 24890-4, 24890-5, 24890-6,
24890-7, 24890-8, 24890-9). The City agrees that the issuance of the building permits to or on
behalf of KSL will in no way bel contingent on KSL's or CPH's obligations with respect to the
Perimeter Improvements other than the posting of the KSL LOC.
(i) Immediately upon CPH's posting of the CPH LOC and its making
the CPH Payment, the City will (release all building permits for the residential lots owned or
previously owned by CPH within the Citrus Subdivision (Tract Nos. 24889, 24890-1, 24890-2,
24890-3, 24890-4, 24890-5, 24 90-6, 24890-7, 24890-8, 24890-9). The City agrees that the
issuance of the building permit3,to or on behalf of CPH will in no way be contingent on KSL's or
CPH's obligations with respect too the Perimeter Improvements other than the posting of the CPH
LOC, its making the CPH Payment, or as otherwise required pursuant to this Agreement.
0) a City agrees that none of KSL's or CPH's other permits,
developments, development rig ts, approvals, certificates of occupancy, maps and other
entitlements will be tied to, conditioned on, or otherwise related to, in any way, any action by
KSL or CPH with respect to the Subdivision Improvement Agreement, other than the posting of
the KSL LOC (with respect to kSL),and the posting of the CPH LOC and the payment of the
CPH Payment (with respect to (PH)as described herein.
(k)
described in Subsection 2(c),
parties shall take all such acti
release/exoneration.
(1)
described in Subsection 2(f),
parties shall take all such act
release/exoneration.
(m)
long as KSL's Perimeter Imf
Association Approval with r
have been made against the
have lapsed, then KSL shall
not been drawn down or had
($16,000.00), but only if the
less than $95 000 00
on expiration of the one year period after notice of completion
security posted by KSL shall be released/exonerated, and the
necessary and/or appropriate to accomplish such
)n expiration of the one year period after notice of completion
security posted by CPH shall be released/exonerated, and the
necessary and/or appropriate to accomplish such
pon the release of the security as described in Subsection 2(k), so
cements have been accepted by the City and KSL has received
ect to the KSL Perimeter Improvements, and so long as no claims
lrity posted by KSL, and the time periods for any such claims
and to CPH its pro rata portion of the security posted which has
Lims made against it, up to Sixteen Thousand Dollars
rk relating to such security has been completed and actually cost
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3. Other
(a) C:
maintenance, upkeep and other
property management practices,
and about Calle Rondo (until su
the appropriate homeowners' as:
necessary and appropriate action
allowing the encroachment of w
allowing any other negative inci
shall continue on and survive eN
Improvements and the release/e:
the City and the appropriate hor
all ongoing responsibilities asso
acknowledges and agrees that tl
exceed $20,000..
(b) E
posted the CPH LOC, and all t
release and exonerate, and/or c
Payment Bond No. 3SM 757 8
0
(a)
mean and refer only to the foil
as described in Subsection 4(c
reasonably and in good faith:
Perimeter Improvements as de
Improvements in accordance N
Obligations.
i shall be responsible for the construction, development,
pects, in accordance with good and safe health, safety and
f the storm and other drainage components and systems in, at
i components and systems have been accepted by the City and
ciation and transferred to one or the other), and shall take all
to satisfy such responsibilities, without encroaching upon, or
er or other matters, persons or things upon, or creating or
nental impact upon, the Citrus golf course. This obligation
i after completion of construction and turnover of the Perimeter
ineration of the security as set forth herein until acceptance by
:owners' association as provided above and the assumption of
ated therewith by one or the other. The City expressly
costs associated with the above improvements shall in no case
er, but only after, CPH has made the CPH Payment and has
parties hereto have executed this Agreement, the City shall
se the release and exoneration of, AMIC Performance and
00.
. event of Default by KSL, as that term is used herein, shall
ling: the failure of KSL, after notice and an opportunity to cure
to comply with its obligations under Subsection 1(a) to proceed
obtain the approvals necessary for the construction of the KSL
-ibed in Subsection 1(a) and to construct the KSL Perimeter
h the provisions of Section 1 hereof.
(b) An event of Default by CPH, as that term is used herein, shall
mean and refer only to the follo ing: the failure of CPH to make the CPH Payment to KSL
pursuant to the provisions of Subsection 1(a) hereof; and/or the failure of CPH, after notice and
an opportunity to cure as described in Subsection 4(c): to comply with its obligations under
Subsection 1(b) to proceed reasonably and in good faith: to obtain the approvals necessary for
the construction of the Perimeter Improvements as described in Subsection 1(b) and to construct
the CPH Perimeter Improvements in accordance with the provisions of Section 1 hereof; and/or
the failure of CPH to post the CPH LOC and/or the other security described herein; and/or the
failure of CPH, after notice and an opportunity to cure as described in Subsection 4(c), to comply
with the provisions of Section J hereof.
(c) If the City believes that either KSL or CPH is in Default (the
"Defaulting Party"), then the C ty must first, in order to have the Defaulting Party found in
default or otherwise in breach of this Agreement, notify the Defaulting Party in writing (via fax
and certified first-class mail) and in detail of the claimed Default, specifying the action that the
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City claims is necessary to cure
commence, reasonably and in g
(30) days after its receipt of the
despite its reasonable and good
within such thirty (30) day peril
time as is necessary or reasonat
(d) In
not cured in accordance with thi
draw down on the KSL LOC. Ii
Agreement, which is not cured i.
remedy shall be to draw down o.
Subsection 3(a) of this Agreeme
City's sole and exclusive remedi,
e claimed Default. The Defaulting Party shall be required to
3 faith, the actions necessary to cure the Default within thirty
ty's notice. In the event that the Defaulting Party cannot,
th efforts, commence the actions necessary to cure the Default
then the Defaulting Party shall be allowed such additional
to commence such actions.
he event of a Default by KSL under this Agreement, which is
Agreement, the City's sole and exclusive remedy shall be to
the event of a Default by CPH under Subsection 1(b) of this
accordance with this Agreement, the City's sole and exclusive
the CPH LOC. In the event of a Default by CPH under
1, which is not cured in accordance with this Agreement, the
shall be to draw down on the Street Improvement LOC.
(e) Notwithstanding anything to the contrary set forth herein, KSL
shall not be responsible or liable for any Default, breach or other action by CPH, and CPH shall
not be responsible or liable for any Default, breach or other action by KSL. There shall be no
cross -defaults under this Agreement, and KSL and CPH shall each be responsible for its own
obligations as set forth herein, b t not for the other's.
G1
(a) Th
respective past, present and futw
in -interest, assigns, assignees, of
employees and agents, if any, he
releases and forever discharges I
and future successors, successor;
assignees, affiliates, members, si
officers, directors, shareholders,
"KSL/CPH Affiliated Entities")
actions, causes of action, whethe
liabilities (contingent or nonconl
attorneys' fees, losses or compen
unknown, whether past, present
or equitable theory of recovery (
the Perimeter Improvements and
security for same (except for tho
which the City has or may have
City, on its own behalf and on behalf of each and all of its
successors, successors -in -interest, predecessors, predecessors-
iliates, associates, partners, parties, co -parties, counsel,
eby jointly, severally, fully, irrevocably and unconditionally
.SL and CPH and each and all of their respective past, present
-in-interest, predecessors, predecessors -in -interest, assigns,
bsidiaries, principals, associates, counsel, employees, agents,
)artners, parties, co -parties and alter egos, if any (collectively,
end AMIC, from any and all rights, claims, demands, liability,
in law or in equity, damages (liquidated or unliquidated),
.ngent), obligations, indebtedness, costs and expenses including
,ation of every kind and nature whatsoever, whether known or
it future whether based upon contract, tort, statute, or other legal
;ollectively "Claims"), related to the construction/completion of
the Street Improvements and/or related to the posting of
;e obligations imposed by and set forth in this Agreement)
against KSL and/or CPH.
(b) K L, CPH and AMIC, on their own behalf and on behalf of each
of their respective past, present end future successors, successors -in -interest, predecessors,
predecessors -in -interest, assigns assignees, affiliates, members, subsidiaries, principals,
associates, counsel, employees, agents, officers, directors, shareholders, partners, parties, co-
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parties and alter egos, if any, he by jointly, severally, fully, irrevocably and unconditionally
release and forever discharge the: City, and each and all of its respective past, present and future
successors, successors -in -interest, predecessors, assigns, assignees, city councils and city council
members, officers, employees, agents, representatives and counsel, if any, from any and all
rights, claims, demands, liability, actions, causes of action, whether in law or in equity, damages
(liquidated or unliquidated), liabilities (contingent or noncontingent), obligations, indebtedness,
costs and expenses including attorneys' fees, losses or compensation of every kind and nature
whatsoever, whether known or unknown, whether past, present or future whether based upon
contract, tort, statute, or other le al or equitable theory of recovery, all claims related to the
construction/completion of the Perimeter Improvements and the Street Improvements and/or
related to the posting of security for same (except for those obligations imposed by and set forth
in this Agreement) which either or both KSL and/or CPH has or may have against the City.
(c) T e City hereby agrees to, and shall, dismiss with prejudice the
complaint in the City Lawsuit against KSL, CPH, AMIC and all other defendants therein. The
City hereby fully and finally releases KSL, CPH, the KSL/CPH Affiliated Entities, and AMIC
from all Claims arising from or relating to (i) the City Lawsuit and the transactions, events and
facts underlying the City Lawsu t (including, without limitation, claims actually asserted or
which could have been asserted n the City Lawsuit), and (ii) all obligations under the
Subdivision Improvement Agreement, and (iii) otherwise with respect to the Perimeter
Improvements and/or the securi ies/bonding therefor except as explicitly reserved in this
Agreement.
(d) T e claims released in this paragraph 5 are hereafter collectively
referred to as the "Released Cla. s."
(e) The City warrants and represents to KSL, CPH and AMIC that it
(i) is the sole and lawful owner of all rights, title and interest in and to the Released Claims as to
which it is giving releases; (ii) has not assigned, transferred or conveyed or purported to assign,
transfer or convey to anyone any Claims concerning the subject of the Released Claims; and (iii)
is unaware of any other pending or contemplated legal actions or proceedings by any party to this
Agreement against any other party to this Agreement other than released herein, except as
between KSL and CPH as set f rth in the City Lawsuit and/or the KSL/CPH Lawsuit.
(f) KSL, CPH and AMIC warrant and represent to the City that it (i)
each is the sole and lawful owner of all rights, title and interest in and to the respective Released
Claims as to which it is giving r leases; (ii) has not assigned, transferred or conveyed or
purported to assign, transfer or convey to anyone any Claims concerning the subject of the
Released Claims; and (iii) is unaware of any other pending or contemplated legal actions or
proceedings by any party to this Agreement against any other party to this Agreement other than
released herein, except as between KSL and CPH as set forth in the City Lawsuit and/or the
KSL/CPH Lawsuit.
(g) Each party to this Agreement understands and acknowledges that
after execution of this Agreement, it may incur or suffer loss, damage or injury which is in some
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way caused by or relat1ed to the
unanticipated at the time of the i
damage presently known may b
Each party assumes such risk, &
unknown and unanticipated rest
those known or anticipated, and
to such Claims, application of S
A GEN]
CLAIMS, WHI
SUSPECT TO
EXECUTING "
MUST' HAVE ]
4L_
.
WITH THE DF�Q
Initials
Initials
6. Reservati
remedies, claims, defenses and ,
the other concerning the obligat
Improvement Agreement, the P
and the KSL/CPH Lawsuit. In
take such steps and file such me
claims, defenses and arguments
the previous consolidation of th
[aims released in this Agreement, but which is unknown or
Kecution of this Agreement. Further, there is a risk that loss or
or become greater than such party now expects or anticipates.
d the releases contained in this Agreement shall apply to all
is arising from or relating to the Released Claims, as well as to
zpon the advice of legal counsel, the party expressly waives, as
ction 1542 of the California Civil Code, which provides:
�L RELEASE DOES NOT EXTEND TO
THE CREDITOR DOES NOT KNOW OR
".ST IN HIS FAVOR AT THE TIME OF
RELEASE, WHICH IF KNOWN BY HIM
TERIALLY AFFECTED HIS SETTLEMENT
OR. (f 64�
Initials Initials
Initials
a of Claims. KSL and CPH hereby reserve all of their rights,
guments that either of them may have with respect to or against
,ns and responsibilities of each of them under the Subdivision
chase Agreement and the Option Agreement, the City Lawsuit
is regard, KSL and CPH will cooperate with each other and
ons as shall be necessary to preserve such rights, remedies,
1 the City Lawsuit and the KSL/CPH Lawsuit notwithstanding
City Lawsuit and the KSL/CPH Lawsuit and the City's
dismissal of its complaint in the City Lawsuit. Nothing in this Agreement shall be construed to
limit or supersede the provisions of this Section 6.
7. Authority to Execute Agreement. Each person signing this Agreement
warrants and represents that he or she has full authority to execute the same on whose behalf he
or she so signs, and that he ors she is acting within the scope of such authority.
8. Advice o Counsel. Each party hereto has received the advice of legal
counsel prior to signing the Agreement, and signs the Agreement voluntarily and with full
knowledge of the consequences thereof.
9. Successors and Assigns. This Agreement shall be binding upon and inure,
jointly and severally, to the benefit of the City, KSL, CPH and AMIC and each of their
respective assigns, assignees, successors and successors -in -interest, etc.
10. Waiver,Modification. and Amendment. No provision herein may be
waived unless in writing and sil ned by the party or parties whose rights are thereby waived.
Waiver of any one provision he ein shall not be deemed to be a waiver of any other provision
herein. This Agreement may b modified or amended only by written agreement executed by all
the parties hereto.
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triparty.fnl. doc/PEB/K4985-012/ 11
11. ;Attorney
attorneys' fees relativell to the pr
contemplated hereby; however,
regard to the City Lawsuit and i
forth therein, Section 6 hereof
the non -prevailing party in any
under or pursuant to this Agrees
parties' reasonable attorneys' fei
gees. All parties to this Agreement shall pay their own
gyration and/or review of this Agreement and the transactions
issue of attorneys' fees, as between KSL and CPH with
KSL/CPH Lawsuit shall be governed by Section 15 and, as set
the event of any legal proceeding relating to this Agreement,
)ceeding to enforce or construe any of the provisions or rights
nt, shall be fully responsible for and shall pay the prevailing
costs, and expenses.
12. Governing Law. This Agreement is made and entered into in the State of
California and shall in all respects be interpreted and enforced and governed by and under the
laws of the State of California.
13. IConstruct'on. Each party and counsel for each party has participated in
the drafting of this Agreement arid, accordingly, the normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement. With the exception of the permit release provisions, in the
event that one or more of the pro isions or portions thereof to this Agreement is determined to be
illegal or unenforceable, the remainder of this Agreement shall not be affected thereby and each
remaining provision or portion thereof shall remain and continue to be valid and effective and
shall be enforceable to the fullest extent permitted by law.
14. Counte s. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which when taken together
shall constitute the Agreement.
15. Liti2ation Expenses. The City, on the one hand as the first party, and CPH
and KSL, on the other hand as the second party, agree that each of those two parties as defined in
this Section shall bear its own costs and attorneys' fees incurred. However, as between CPH and
KSL, with respect to the City Lawsuit and the KSL/CPH Lawsuit, the provisions of Section 6
hereof shall control and apply in luding any attorneys' fees provisions between CPH and KSL
and/or any other right to attome s' fees. The City, CPH, KSL and AMIC agree that, with respect
to any claims by or against AMI , each party shall bear its own costs and attorneys' fees incurred
in connection with the, City Lawsuit, the KSL/CPH Lawsuit and the dispute concerning the
subject of this Agreement, inclu ing the construction of the Perimeter Improvements, and the
posting of security with respect thereto.
16. Entire Aideement. This Agreement contains all of the agreements of the
parties hereto with respect to the matters contained herein and no prior or contemporaneous
agreement or understanding, oral or written, pertaining to any such matters shall be effective for
any purpose.
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triparty.fnl.doc/PEBXK4985-012/11-24-98/ b
17. Title and CaDtions. Sections, titles and captions contained in this
Agreement are inserted only as matter of convenience and for reference and shall in no way be
construed to define, limit or ext d the scope of this Agreement or the intent of any of its
provisions.
DATED: / Z , 1998 THE CITY O LA QUINTA
By:
lllIts: City Manager
DATED: �� , 1998 KSL RECREATION CORPORATION, a Delaware
corpo"cutive
By:
President
DATED: < <' , 1998 KSL LAND CORPORATION, a Delaware
corporat'
Its: resi ent
DATED: , 1998 CAPITAL PACIFIC HOLDINGS, LLC, a
Delaware limited liability company
By: Capital Pacific Holdings, Inc., a Delaware
corporation, Managing Member
By: r
Its:
DATED: %' �� , 1998 AMERICAN MOTORISTS INSURANCE
COMPANY
By:
Its: V ,
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triparty.fnl.doc/PEB/K4985-012/11-24-9 /jb
EXHIBIT "A"
CITRUS COURSE
October 27, 1998
EXHIBIT "B"
Timeline for Construction of
The Citrus @ La Quinta Resort & Club Perimeter Improvements
Project Location
Entity to Construct
Timing
Wall Jefferson Street
KSL •
Complete construction within 12 months from
the date of execution of Tri-Party Agreement
Landscaping Jefferson Street
KSL 0
Same timing as Jefferson Street Wall
Avenue',52, east
KSL °
Same timing as Jefferson Street Wall
and west of gate
Calle Rondo
CPH 0
Same timing as Jefferson Street Wall
Calle Te mpico
CPH °
Same timing as Jefferson Street Wall
Park Av Dnue
CPH °
Same timing as Jefferson Street Wall