Loading...
2003 12 02 CCCity Council Agendas are Available on the City's Web Page @ www.la-quinta.org CITY COUNCIL AGENDA CITY COUNCIL CHAMBERS 78-495 Calle Tampico La Quinta, California 92253 Regular Meeting Tuesday, December 2, 2003 - 2:00 P.M. Beginning Resolution No. 2003-1 16 Ordinance No. 393 CALL TO ORDER Roll Call: Council Members: Henderson, Osborne, Perkins, Sniff, and Mayor Adolph PUBLIC COMMENT At this time, members of the public may address the City Council on any matter not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. Please watch the timing device on the podium. CLOSED SESSION NOTE: Time permitting, the City Council may conduct Closed Session discussions during the dinner recess. In addition, persons identified as negotiating parties are not invited into the Closed Session meeting when the Agency is considering acquisition of real property. 1. CONFERENCE WITH LEGAL COUNSEL PURSUANT TO GOVERNMENT CODE SECTION 54956.9(c) — INITIATION OF LITIGATION (ONE MATTER). i City Council Agenda 1 December 2, 2003 RECONVENE AT 3:00 P.M. PLEDGE OF ALLEGIANCE PUBLIC COMMENT At this time members of the public may address the City Council on items that appear within the Consent Calendar or matters that are not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. When you are called to speak, please come forward and state your name for the record. Please watch the timing device on the podium. For all Business Session matters or Public Hearings on the agenda, a completed "request to speak" form should be filed with the City Clerk prior to the City Council beginning consideration of that item. CONFIRMATION OF AGENDA PRESENTATIONS - NONE WRITTEN COMMUNICATIONS 1. CORRESPONDENCE FROM JOHN A. JAMES, CHAIRMAN, CABAZON BAND OF MISSION INDIANS. APPROVAL OF MINUTES - NONE CONSENT CALENDAR NOTE: Consent Calendar items are considered to be routine in nature and will be approved by one motion. 1. APPROVAL OF DEMAND REGISTER DATED DECEMBER 2, 2003. 2. APPROVAL OF DECLARATION OF SURPLUS PROPERTY. 3. APPROVAL OF A BANKING SERVICES CONTRACT WITH WELLS FARGO BANK. 4. DENIAL OF CLAIM FOR DAMAGES FILED BY MITCHELL CLARK - DATE OF LOSS: NOVEMBER 5, 2003. City Council Agenda 2 December 2, 2003 5. APPROVAL OF A REQUEST BY THE CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD TO UTILIZE THE CITY COUNCIL CHAMBERS ON JANUARY 14, MARCH 10, MAY 12, JUNE 30, SEPTEMBER 8, AND NOVEMBER 10, 2004, FROM 9:00 AM TO 2:00 PM. 6. ADOPTION OF A RESOLUTION GRANTING CONDITIONAL APPROVAL OF A FINAL MAP AND SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT NO. 31627, THE RESIDENCE CLUB AT PGA WEST, - NADADOR, LLC. 7. AUTHORIZATION FOR OVERNIGHT TRAVEL FOR THE CITY CLERK TO ATTEND THE INTERNATIONAL MUNICIPAL CLERK'S ANNUAL CONFERENCE IN WHISTLER, B.C. CANADA, MAY 23-27, 2004. 8. APPROVAL TO: 1) APPROPRIATE FUNDING TO INCLUDE THE LA QUINTA PARK SKATE PARK IMPROVEMENTS WITHIN THE FISCAL YEAR 2003/2004 CAPITAL IMPROVEMENT PLAN; 2) APPROVE A REQUEST FOR PROPOSALS (RFP) TO OBTAIN DESIGN/BUILD SERVICES; AND 3) APPOINT A CONSULTANT SELECTION COMMITTEE. BUSINESS SESSION 1. CONSIDERATION OF ARTIST BRIDGE RAILINGS FOR WASHINGTON STREET AND JEFFERSON STREET BRIDGES NORTH OF HIGHWAY 111 AND EISENHOWER BRIDGE NORTH OF CALLE TAMPICO. A. MINUTE ORDER ACTION 2. CONSIDERATION OF A CLOCK TOWER ON THE CIVIC CENTER CAMPUS. A. MINUTE ORDER ACTION 3. CONSIDERATION OF A SCULPTURE HONORING PUBLIC SAFETY OFFICERS AT THE CIVIC CENTER CAMPUS A. MINUTE ORDER ACTION 4. CONSIDERATION OF AN ORDINANCE AMENDING SECTION 6.08.050 OF THE LA QUINTA CHARTER AND MUNICIPAL CODE RELATIVE TO DISTURBANCES BY CONSTRUCTION NOISES. A. MOTION TO TAKE UP ORDINANCE BY TITLE AND NUMBER ONLY AND WAIVE FURTHER READING B. INTRODUCE ORDINANCE NO. ON FIRST READING 3 City Council Agenda 3 December 2, 2003 5. CONSIDERATION OF A RESOLUTION RELATING TO THE PROPOSED TAX SHARING CONTRACTS OFFERED BY THE CITY OF INDIO FOR THE RELOCATION OF CHAMPION CADILLAC AND CHAMPION CHEVROLET. A. RESOLUTION ACTION 6. CONSIDERATION OF SECOND READING OF ORDINANCE NO. 391 ADOPTING THE COACHELLA VALLEY MODEL DUST CONTROL ORDINANCE. A. ADOPT ORDINANCE NO. 391 ON SECOND READING 7. CONSIDERATION OF SECOND READING OF ORDINANCE NO. 392 APPROVING ZONING CODE AMENDMENT 2003-077, AN AMENDMENT TO CHAPTER 8.13 OF THE LA QUINTA MUNICIPAL CODE PERTAINING TO THE WATER EFFICIENT LANDSCAPE ORDINANCE. A. ADOPT ORDINANCE NO. 392 ON SECOND READING. STUDY SESSION — NONE REPORTS AND INFORMATIONAL ITEMS 1. ANIMAL CAMPUS COMMISSION (PERKINS) 2. CITY COUNCIL AD HOC COMMITTEE REPORTS 3. CVAG COMMITTEE REPORTS 4. CHAMBER OF COMMERCE WORKSHOP/INFORMATION COMMITTEE (OSBORNE) 5. C.V. MOSQUITO AND VECTOR CONTROL DISTRICT (PERKINS) 6. C.V. MOUNTAINS CONSERVANCY (SNIFF) 7. DESERT RESORTS REGIONAL AIRPORT AUTHORITY (OSBORNE) 8. LEAGUE OF CALIFORNIA CITIES (HENDERSON) 9. PALM SPRINGS DESERT RESORTS CONVENTION & VISITORS AUTHORITY (HENDERSON) 10. PALM SPRINGS INTERNATIONAL AIRPORT COMMISSION (ROBERT TYLER) 11. RIVERSIDE COUNTY DESERT LIBRARY ZONE ADVISORY BOARD (HENDERSON) 12. RIVERSIDE COUNTY TRANSPORTATION COMMISSION (HENDERSON) 13. SAN JACINTO/SANTA ROSA NATIONAL MONUMENT ADVISORY COMMITTEE (HENDERSON) 14. SUNLINE TRANSIT AGENCY/SUNLINE SERVICES GROUP (ADOLPH) 15. INVESTMENT ADVISORY BOARD MINUTES OF OCTOBER 8, 2003 16. CULTURAL ARTS COMMISSION MINUTES OF SEPTEMBER 11 AND OCTOBER 9, 2003 City Council Agenda 4 December 2, 2003 DEPARTMENT REPORTS 1. CITY MANAGER 2. CITY ATTORNEY 3. CITY CLERK A. REPORT ON UPCOMING EVENTS 4. BUILDING AND SAFETY DIRECTOR'S MONTHLY REPORT - NONE 5. COMMUNITY DEVELOPMENT DIRECTOR'S MONTHLY REPORT - NONE 6. COMMUNITY SERVICES DIRECTOR'S REPORT - NONE 7. FINANCE DIRECTOR'S REPORT - NONE 8. PUBLIC WORKS DIRECTOR/CITY ENGINEER'S REPORT - NONE 9. POLICE CHIEF'S MONTHLY REPORT - NONE 10. FIRE CHIEF'S QUARTERLY REPORT - NONE MAYOR'S AND COUNCIL MEMBERS' ITEMS - NONE RECESS TO REDEVELOPMENT AGENCY MEETING RECESS TO 7:00 P.M. 7:00 P.M. PUBLIC COMMENT This is the time set aside for public comment on any matter not listed on the agenda. Please complete a "request to speak" form and limit your comments to three (3) minutes. Please watch the time clock on the speakers podium. PRESENTATIONS - NONE PUBLIC HEARINGS For all Public Hearings on the agenda, a completed "request to speak" form must be filed with the City Clerk prior to the start of City Council consideration of that item. The Mayor will invite individuals who have requested the opportunity to speak, to come forward at the appropriate time. Any person may submit written comments to the La Quinta City Council before a public hearing may appear and be heard in support of, or in opposition to, the approval of project(s) at the time of the hearing. If you challenge any project(s) in court, you may be limited to raising only those issues you or someone else raised at the public hearing or in written correspondence delivered to the City Clerk at, or prior to the public hearing. J City Council Agenda 5 December 2, 2003 1. CONTINUED PUBLIC HEARING TO CONSIDER ADOPTION OF RESOLUTIONS CERTIFYING A MITIGATED NEGATIVE DECLARATION OF ENVIRONMENTAL IMPACT FOR ENVIRONMENTAL ASSESSMENT 2002-462, DEVELOPMENT PRINCIPLES AND DESIGN GUIDELINES FOR SPECIFIC PLAN 2002-062 AND DEVELOPMENT PLANS FOR SITE DEVELOPMENT PERMIT 2002-754, SUBJECT TO FINDINGS AND CONDITIONS OF APPROVAL, TO ALLOW A COMMERCIAL SHOPPING CENTER ON A 10.7 ACRE SITE LOCATED AT THE SOUTHWEST CORNER OF JEFFERSON STREET AND FRED WARING DRIVE. APPLICANT: JEFFERSON-WARING, LLC. (Note: The Community Development Department anticipates this item being continued) 2. PUBLIC HEARING TO ADOPT AN ORDINANCE OF THE CITY COUNCIL AMENDING THE FOLLOWING LA QUINTA MUNICIPAL CODE SECTIONS: 1) 9.160.020, TABLE 9-17.7 RELATING TO CHRISTMAS LIGHTS. 2) 9.40.040 TABLE 9-1 OTHER USES — ADDING CHURCHES AS CONDITIONALLY PERMITTED; 3) 9.60.100(D)(1) TO INCLUDE ATTACHED AND DETACHED GUESTHOUSES; AND 4) 13.12.160(B) — EXTENSIONS OF TIME FOR TENTATIVE TRACT MAPS AS GRANTED BY THE COMMUNITY DEVELOPMENT DEPARTMENT. A. MOTION TO TAKE UP ORDINANCE BY TITLE AND NUMBER ONLY AND WAIVE FURTHER READING B. INTRODUCE ORDINANCE ON FIRST READING 3. JOINT PUBLIC HEARING TO CONSIDER REVISIONS TO A PREVIOUSLY -APPROVED DISPOSITION AND DEVELOPMENT AGREEMENT AND A DEVELOPMENT AGREEMENT BY AND BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY AND CENTER POINT DEVELOPMENT, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, OF AGENCY PROPERTY LOCATED SOUTHEAST OF THE INTERSECTION OF WASHINGTON STREET AND MILES AVENUE IN LA QUINTA PROJECT AREA NO. 2. A. RESOLUTION ACTION ADJOURNMENT Adjourn to a regularly scheduled meeting of the City Council to be held on December 16, 2003, commencing with closed session at 2:00 p.m. and open session at 3:00 p.m. in the City Council Chambers, 78-495 Calle Tampico, La Quinta, CA 92253. r City Council Agenda 6 December 2, 2003 6 DECLARATION OF POSTING I, Phyllis Manley, Deputy City Clerk of the City of La Quinta, do hereby declare that the foregoing agenda for the La Quinta City Council meeting of Tuesday, December 2, 2003, was posted on the outside entry to the Council Chamber, 78-495 Calle Tampico and on the bulletin board at the La Quinta Chamber of Commerce and at Stater Bros. 78-630 Highway 111, on Wednesday, November 26, 2003. DATED: November 26, 2003 PHYLLIS MANLEY, Deputy City Clerk City of La Quinta, California Public Notices The La Quinta City Council Chamber is handicapped accessible. If special equipment is needed for the hearing impaired, please call the City Clerk's Office at 777- 7025, twenty-four (24) hours in advance of the meeting and accommodations will be made. If special electronic equipment is needed to make presentations to the City Council, arrangement should be made in advance by contacting the City Clerk's Office at 777- 7025. A one (1) week notice is required. If background material is to be presented to the City Council during a City Council meeting, please be advised that eight (8) copies of all documents, exhibits, etc., must be supplied to the City Clerk for distribution. It is requested that this take place prior to the beginning of the 3:00 PM session or the 7:00 PM session. �I City Council Agenda 7 December 2, 2003 Amy, 194�40-9 Pam. Cerm rv"'o.� College of the Desert General Obligation Bond Measure Frequently Asked Questions Q. 1. What are the facility needs of College of the Desert? A. There are not enough state funds to pay for the refurbishing and infrastructure upgrades needed for COD. Student population is expected to double in the next 10-15 years; we are currently unable to meet such an increase. There is a need for more classroom space which can accommodate larger lectures; continued access to modem technology and expanded college programs to meet the needs of our students, faculty and staff. As indicated in the Educational Master Plan, we must serve the needs of the growing student population in the Eastern Valley. The cost of leasing space is increasing annually. By law, the College of the Desert must list on the ballot the specific projects that will be funded by the general obligation bond. College of the Deserfs projects, as they appear on the official ballot, are: Job and Career Training Projects • Build an Allied Health and Nursing Facility that will allow the College of the Desert to increase the number of trained nurses and help relieve the serious nursing shortage in the local area. • Build a new Public Safety Academy to train public safety personnel in administration of justice, fire fighting technology, and police officer standards. • Build a state-of-the-art Technology Center to provide computer and information systems, classrooms/labs and student access to lab technicians, to prepare student for careers and four-year degrees in science and technology jobs and professions. EI; (Project List, continued) Classroom Buildings and Facilities • Redesign and wire classrooms to increase the uses of technology, computers and high speed Internet access for teaching including enhancement of distance learning. • Build large lecture hall facility to accommodate larger classrooms and conferences. • Build and acquire college classrooms to accommodate more students who want to enroll in classes and improve the quality of learning and expand academic and vocational learning opportunities, horticultural department facilities, and sites. • Add modern science labs. • Renovate and upgrade buildings, facilities, gym, fields and classrooms for each of safety, efficiency, and expanded enrollment. • Construct an early childhood education and development center to train teachers and a centralized student center, a fitness and wellness center and performing arts facility. Health and Safety Projects • Repair and maintain deteriorating campus flooring, roofs, walls, windows, plumbing and electrical systems. • Install new fire alarm systems and energy efficient lighting. • Reduce earthquake risks by seismic retrofitting older buildings, which are currently over half of all buildings on the Palm Desert campus. • Upgrade water, sewer, mechanical, heating, ventilation and gas infrastructure to current safety codes. Energy Efficiency Improvements • Replace/upgrade energy systems, heating, ventilation and air conditioning systems and related utility systems. • Refinance Existing Lease Obligations to Lower Interest Rate and Increase Funds Available For Instruction and Ongoing Maintenance of Classrooms and Buildings. Safety and Security; Sites • Improve pedestrian access routes across Campus for � p safety. • Improve campus safety and security by adding exterior lighting. 2 t, • Implement safety upgrades to relieve traffic flow and parking congestion. • Repair or replace outdated natural gas, water, sewer, storm drain systems. • Acquire property to expand student capacity. • Improve emergency access and evacuation routes to improve student safety, redesign campus road network to eliminate dangerous intersections and unsafe conditions, reduce gridlock, improve pedestrian safety and increase access for emergency vehicles. Q. 2. Will a general obligation bond pay for the staffing and maintenance of the buildings? A. No, but the added square footage when available will allow the college to be eligible for increased growth funds from the state. Donor funds will be solicited as well. An endowment has already been received for the operations of the Business and Community Center. Q. 3. Will funds from a general obligation bond pay for the equipment and furniture needed in the buildings? A. Yes, the law passed in 2000, Proposition 39 allows for funds to be used from the Bond for the purpose of furniture and equipment. Q. 4. Can the college's general fund dollars be used for a general obligation bond? A. Research, education and dissemination of information can be financed through the general fund of a college, but the decision was made not to use any COD general fund dollars to support the Bond campaign at any time. Q. 5. Will the general obligation bond pay for new administration for a new college? A. No new college is planned and therefore there is no intent to add more administration. A Bond campaign will not pay for any salaries long term. Inter, a center is planned for the Eastern Valley, which the bond would pay for, and the added square footage will allow the college to be eligible for more growth funding for operations. A center is an added college site for a one college district like COD The Board has no plans to make COD a two college district that would be a multi college district. That would make no sense given the proximity of the Eastern Valley. Q. 6. How much will the general obligation bond cost homeowners? A. The maximum the college would be eligible for would be a bond costing homeowners $25 per $100,000 assessed value of the home. The college is anticipating something in the range of $19.95 per $100,000 of assessed value of their home. 1.0 3 Q. 7. What was the result of the poll conducted to determine the community interest in the campaign? A. An opinion poll was conducted by a professional organization that specializes in this type of survey, using the stratified sample needed to assure accurate results. The poll showed that 69% of likely voters supported a bond measure for College of the Desert. Clearly, there is strong interest in the community in the College moving forward to solve its facilities problems through a Bond campaign. Q. 8. What were the greatest areas of interest from the community? A. The community poll determined that the greatest areas of interest were in the College fixing its aging infrastructure, renovating existing campus buildings and adding new classrooms and facilities to meet the future increase of students. Facilities used for job and career training was especially important to the voters in our community. Q. 9. ff we have specified details for buildings are we locked into exactly what is in the Facilities Master Plan? A. The Facilities Master Plan provides the College with great flexibility and voters will approve a general plan not what is in the detailed Facilities Master Plan. Q. 10. What will voters see on the ballot? A. They will see a 75-word statement question outlining generally what will be done with the fund and a list of projects to be funded by the bond. The 75 word statement appearing in the ballot is: EXHIBIT A College of the Desert Job Training Overcrowding, Repair/Safety Measure: "To train local residents for jobs, prepare students for four-year colleges, accommodate increasing student enrollment at College of the Desert by: • Expanding nursing/police/fire-fighting training facilities; • Repairing sewer systems, leaky roofs, decaying walls, plumbing, electrical systems; • Upgrading/adding classrooms for computer technology; • Repairing, acquiring, constructing, equipping buildings, sites, classrooms; shall Desert Community College District issue $346.500,000 in bonds, at legal rates, with citizen oversight, annual audits, no money for administrators' salaries?" Bonds - Yes Bonds— No Q. 11. Will there be a staffing plan to staff new buildings? A. As new buildings are planned there will be at least a 2 — 3 year time frame to determine the staffing needs and the staffing funding plan for each new building. This plan will determine the timing of each new building. N)- 4 Q. 12. What is the Citizen's Oversight Committee? A. It is a legally required independent auditing group that will assure that the bond funds are spent appropriately legally and as promised during the election. Q. 13. Will bonds be issued all at once or over time? A. The bonds will be phased in over time, as needed. The total may never be completely issued based on priorities set by the College. The voters would have approved the total amount based upon need determined in 2003. 1z Endorsements College of the Desert Bond Campaign As of 11-27-03 Elected Officials Cathedral City Council Coachella City Council Mayor Matt Weyuker, Desert Hot Springs Indian Wells City Council Mayor Pro Tern Mayor Roche, Indian Wells Councilman Percy Byrd, Indian Wells Councilman Conrad Negron, Indian Wells Councilwoman Terry Henderson, La Quinta Mayor Jean Benson, Palm Desert Councilman Buford Crites, Palm Desert Councilman Dick Kelly, Palm Desert Councilman Bob Spiegel, Palm Desert Mayor Dana Hobart, Rancho Mirage Councilman Richard Kite, Rancho Mirage Sheriff Bob Doyle Supervisor Roy Wilson Assemblywoman Bonnie Garcia Assemblyman John Benoit State Senator Denise Moreno Ducheny Member Array Swan -Draper — DSUSD Board of Education GrogWOmanizations Cathedral City Chamber of Commerce Coachella Chamber of Commerce Desert Hot Springs Chamber of Commerce Indio Chamber of Commerce Palm Desert Chamber of Commerce Palm Springs Chamber of Commerce Legislative Coalition of Coachella Valley Cities Chambers of Commerce Friends of the College of the Desert Library College of the Desert Foundation Auxiliary Coachella Valley Economic Partnership Legislative Committee CVEP Work Force Development Committee 13 Police and Fire Chiefs Lift Stan Henry Police Chief, Cathedral City Roy Hill —Police Chief, Desert Hot Springs John Horton —Police Chief, Coachella/La Quinta Gary Jeandron ---Police Chief, Palm Springs Pat McManus —Police Chief, Indian Wells/ Palm Desert/ Rancho Mirage Brad Ramos —Police Chief, Indio Counly Michael Andrews —Chief Deputy, Riverside County Sheriffs Neil Lingle —Assistant Sheriff Wayne Walker —Sheriffs Lieutenant Ignacio Otero — Division Chief — Palm Desert Fire Station Civic and Business Leaders Claudia Castorena, Division Chair — Martha's Village & Kitchen Bill Claire, Owner — Claire Associates Father John Connor - Coachella Bill Cuff, Principal — Maryanov, Madsen, Gordon & Campbell CPA's Robert Hargreaves, Partner, Best, Best & Krieger LLP Jean Ann Hirschi, Attorney -at -law Scott Kiner, Partner, Kiner/Goodsell, Inc. Jim Lewis, Coachella Valley Rescue Mission Bill Lohman Jay McQuillon, Jr. — Regional Manager — Granite Construction Co. Richard Oliphant, President — Oliphant & Lizza Development Group Bill Powers, President/CEO — Pacific Western Bank Enzo Provenza, Owner — Fiduciary Services Ray Rodriguez, Owner — Casuelas Cafe BondEndrsmtfile 2 4 Cities and unincorporated areas in the College of the Desert Assessment District Cathedral City Coachella Desert Hot Springs Eagle Mountain/Eastem Desert Indian Wells Indio/Bermuda Dunes Indio East Indio Hills/North Indio (second largest unincorporated population) La Quinta Mecca Hills Oasis Painted Hills Palm Desert Palm Springs Rancho Mirage Salton City Sun City Palm Desert Thermal (largest unincorporated population) Thousand Palms IS ZIPCODESUMMARY 12-01-03 DESERT COMMUNITY COLLEGE DISTRICT N WHERE COLLEGE OF THE DESERT STUDENTS RESIDE FALL 2002, BASED ON ZIP CODES SUMMARY INDIO/BERMUDA DUNES 2145 21.4% PALM DESERT 1836 18.0 CATHEDRAL CITY 1458 14.4 PALM SPRINGS 983 9.7 LA QUINTA 932 9.2 COACHELLA 738 7.3 DESERT HOT SPRINGS 653 6.5 RANCHO MIRAGE 276 2.7 THERMAL 232 2.3 THOUSAND PALMS 177 1.7 MECCA 129 1.3 YUCCA VALLEY 114 1.1 MORONGO VALLEY 49 .5 INDIAN WELLS 44 .4 JOSHUA TREE 31 .3 29 PALMS 31 .3 SALTON CITY 16 .2 OTHER ZIP CODES 297 2.9 101174 100.0% J' ZIPCODESUMMARY 12-01-03 Our Voice: College on target with bond issue It could be solution to dire need for repairs, expansion The Desert Sun September 19th, 2003 College of the Desert's limited financial resources, coupled with the state's fiscal woes, combine to make conditions right to put a bond issue before voters. If they don't, the growing list of needs, which already include leaky roofs and outdated plumbing and electrical systems, will only get longer. If repairs are not addressed, the college could free -fall into a state of disrepair. It's not just repairs that need to be addressed; there's also the growing need for a permanent location for an Eastern Valley Center. The college's existing Eastern Valley Center operates out of a leased building in Indio. And, according to the facility's master plan, that center will need to be replaced by a full -service campus center in a more easterly location to adequately serve the area's growing population. It will all take money -- money the college currently does not have. Placing a bond issue before voters is nothing new, and it's easier than it has been in the past, adding to its appeal. Since California's Proposition 39 in 2000 lowered the voter approval threshold from two-thirds to 55 percent for school -facility bond measures, community colleges increasingly are placing bond issues on the ballot. Last year, 23 California community colleges conducted bond campaigns, and all but two were successful. COD doesn't have an official bond campaign yet, but it should. In addition to the successful track record of community colleges around the state working to its advantage, COD also has the results of an opinion survey working in its favor. The results of the survey showed overwhelming support for the college and a bond issue. The college should capitalize on the growing momentum because this is about so much more than decrepit old buildings or the desire for new ones. It's about students' education and their futures. Inadequate, overcrowded and neglected school facilities impair learning, encourage dropouts and, in the worst situations, might even put lives at risk. COD plays a vital role in this valley. It helps prepare students for transfer programs that ensure their access to public and private universities and higher -education degrees. They also provide two-year degrees and certificate programs that lead to employment, which serves every community well. In addition, community colleges open the doors to those with limited English skills and those with low self-esteem -- a door to education that otherwise might be closed to them. The longer leaders debate and stall the merits of a bond issue, the bigger the backlog of remodeling and construction projects grows. 17 Used by permission of The (Palm Springs, CA) Desert Sun LLEGE OF THE DESERT IS A GREAT DEAL FOR THE COACHELLA VALLEY COMMUNITY Summary of an Economic Impact Study of College of the Desert Performed by Michael J. Bazdarlch, MB Economics & Director, UCR Forecasting Center The College of the Desert (COD) provides upward of $374 million per year in economic benefits to the Coachella Valley, far in excess of the $112 million in cash and human resources expended to sustain College operations. This is the principal finding of an economic impact study we conducted for COD. Our study calculated the benefits of the College of the Desert as the increments to lifetime earning power students achieve each year in their studies, as well as the cost savings they achieve by being able to attend COD, rather than other colleges much further away. Our estimates utilized results from federal government studies of the effects of education on earnings power for men and women of different ages. $112 Million in Economic Costs. Only $28 Million Of Which Are COD Cash Expenses. We also performed an exhaustive accounting of the resources the community commits to sustaining College operations. We included as costs of COD operation not only its $28 million of cash expenditures, but also the value of time and materials students expend in their studies, as well as the value of land and buildings devoted to COD operations rather than to alternate uses. In fact, we found that the value of time and materiel students expend in obtaining their education is far larger than COD's cash budget and nearly two-thirds of the total economic costs of COD operations. Benefits: $343 Million Worth of Education Credits and $31 Million in Saved Commudna Costs. Despite this exhaustive cost accounting, the benefits from COD were found to cover costs nearly three times over. COD students save more than $31 million each year by being able to study locally rather than having to commute to or board elsewhere. This benefit alone exceeds COD's cash expenses. Nevertheless, it is dwarfed by $343 million of beneficial effect of COD's education on students' earnings potential. The government studies mentioned above indicate that completion of a Bachelor's degree raises lifetime earning potential by $660,000 for men and $382,000 for women. We estimate that 40% of this increment from a B.A. can be attributed to the community college component of college studies. Completion of an Associate's degree or the equivalent was found to raise lifetime earnings power by $201,000 for men and $134,000 for women. Smaller increments to earnings can be expected for students achieving "Some College" but finishing without a degree and for students earning their high school diploma or GED. Meanwhile, out of COD's total enrollment of 9,800 students, about 500 will graduate each year with an A.A. or equivalent, 335 of which can be expected to eventually earn a Bachelor's degree. About 1,250 new credit students at COD each year will eventually stop short of a degree but still accumulate "Some College" experience, and about 50 students each year will complete their high school studies. Applying the lifetime earnings estimates discussed above to these demographics results in our estimate of $343 million per year in educational benefits provided by COD. Benefit Estimates Are Conservative. Notice that this estimate does not even attempt to include the vocational and adult education benefits provided by College operations. At every step of the way, we have been careful to error on the "downside" and to estimate only those benefits for which we could utilize "hard" figures derived from authoritative sources, and thus we believe these figures are conservative estimates of the benefits of COD operations. -COD Deserves Community Supoo While COD offers an extremely attractive cost -benefit picture to the '9bmmunity, it is important to distinguish between the economic benefits/costs delineated here and the cash revenues/expenses actually flowing through the College. COD's $28+ million in cash expenses are met by only $25 million in base revenues. Given state budget conditions, additional funding from SacramenjoAs not an option. Meanwhile, student fee levels are controlled by Sacramento, and, as seen above, COD students already invest over $70 million per year worth of their own time and resources into their education, not including fees. The need for community support of COD is clear, and the findings of our study indicate that such community investment in COD will prove to be a remarkably profitable one. The College of the Desert is here for all Coachella Valley residents, but most especially for its most underprivileged ones, the citizens most needing of community college educational services, but also those for whom the benefits bestowed by a COD education will make the most critical difference. Again, COD is here, it is functioning, and it is doing so wildly successfully, considering its nearly 3-to-1 coverage of benefits over costs. COD is surely worthy of community support, and Valley residents will be well rewarded in their provision of this support. Coll 43-500 Monterey Avet FOR IMMEDIATE RELEASE: October 29, 2003 serf Desert, CA 92260-2499 FOR MORE INFORMATION: Tom Wixon (760) 773-2589 Public Relations Officer Economic Impact Study Shows COD Adds $357 Million To Community PALM DESERT, CA —College of the Desert (COD) is an important economic engine for the Coachella Valley, imparting a long list of fiscal benefits to the community, according to recently completed study by a well-known area financial analyst. The study shows that COD delivers about $357 million annual in various benefits to the community. Economist Michael Bazdarich said the findings are based on conservative estimates. "That $357 million estimate is not the result of some wild-eyed application of job creation and multiplier effects," said Dr. Bazdarich in an executive summary of the study to be released at a press conference on the COD campus on Oct. 29. "Rather, these benefits accrue from a careful and sober application of federal government findings on the incremental value of education in enhancing earning power over a lifetime." The press conference is set for 11:00 a.m. at the Velma Dawson House on the COD campus, in the Foundation Board Room. Dr. Bazdarich will be available to answer questions. "We've wondered for a long time about the economic impact we were having on our communities," said Sam Hook, Executive Director, COD Foundation. "We're often asked the question, so recently we asked Dr. Bazdarich's firm, MB Economics of La Canada, to undertake an economic impact study." Dr. Bazdarich is widely recognized here for his annual forecasts presented at the McCallum Theatre each January at the Economic Forecast Breakfast sponsored by COD's Center for Training and Development (formerly the Economic Development office). His local forecasts have turned out to be extremely accurate for several years in a row, according to Pam LiCalsi, Dean, COD Center for Training and Development. The study included a comprehensive cost accounting of COD's operations, and determined that the college utilizes nearly $110 million worth of the Valley's time and resources each year. That is more than offset by the $357 million in economic benefits, creating a benefits/costs ratio of about 3.5 to 1, which Dr. Bazdarich calls "staggering" because the ratio is so much higher than he expected it to be. (Page 1 of 2) Desert Community College District 9 760/346-8041 The study measures the economic impact of the college is by adding up the incremental earnings power for students who graduate, enter the workforce with some college, earn their high school diploma or GED at COD, or take courses to enhance their career. In constructing these figures," Dr. Bazdarich said, "we were careful at every step of the way to ascribe value to COD benefits only when we had hard data with which to make that evaluation. When any judgment call was made in determining results, the decision was made so as to understate benefits in order to keep our estimates conservative." As a result, no effort was made to calculate the economic impact of COD's 10,000 students or 600 employees, including 300 faculty members, on the retail community. Many such studies include those figures, and would further measure the ripple effect of a $23 million annual payroll. However, Bazdarich left these obvious benefits off the list because their inclusion would lead to the use of "multipliers" and the resulting numbers, which would be much higher than the $357 million put forth by the study, could be subject to exaggeration. In addition, the study leaves out benefit calculations for the general education COD provides in English as a Second Language courses, career advancement, and other non-credit student activity that is common at our college. "The economic benefits provided to such students are known to be enormous," Dr. Bazdarich said. "But lacking a hard metric for such benefits, we have refrained from including them in our estimates." In other words, Hook said, COD's economic impact on our communities is even greater than the study suggests. "And this is above and beyond the intangible benefits to the individual sense of achievement inherent in learning." (Page 2 of 2) WRITTEN CORRESPONDENCE ITEM: i - SEP 2 3 2003 T. l Mayor Don Adolph 78-495 Calle Tampico La Quinta, CA 92253 Dear Mayor, As in previous years, the Cabazon Band of Mission Indians is setting another round of meetings with member cities of the Coachella Valley Association of Governments to give key city staff a look at the tribe's projects under development. We take pride in working closely with local governments, and it's our goal to keep communications open with our surrounding communities. We'd like to set a meeting with you and your staff to give you a first look at our developments and projects, such as the resort hotel now under construction, and other projects that are on schedule for the future. Please let us know if your council and staff can arrange for a visit to the reservation in October. Your contact, Nancy Tarascio, our public information officer, will work with you to set a meeting date at your convenience. She can be reached at our office, 760- 342-2593, extension 3014. Sincerely, John A. James Chairman, Cabazon Band of Mission Indians Cc: Tom Genovese, city manager 1� T 0 4t!t 4 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: DECEMBER 2, 2003 ITEM TITLE: Demand Register Dated December 2, 2003 BUSINESS SESSION CONSENT CALENDAR STUDY SESSION PUBLIC HEARING RECOMMENDATION: Approve Demand Register Dated December 2, 2003 BACKGROUND: Prepaid Warrants: 56279 - 56284) 6,022.22 56285 - 563131 18,788.02 56314 - 56317) 69843.46 56318 - 56323 } 1,070.00 Wire Transfers} 4255874.23 P/R 31539 - 31624) 127,777.58 P/R Tax Transfers) 359187.03 Payable Warrants: 56324 - 564571 829,615.55 $194515178.09 FISCAL IMPLICATIONS• Demand of Cash -City $1,001,211.42 Demand of Cash -RDA $449,966.67 John M. Falconer, Finance Director 23 CITY OF LA QUINTA BANK TRANSACTIONS 11/13/03—11/25/03 11/21/03 WIRE TRANSFER — ICMA $8,961.31 11/21/03 WIRE TRANSFER — CREDIT UNION $6,067.00 11/21/03 WIRE TRANSFER — PERS $14,036.50 11/21/03 WIRE TRANSFER — RDA ESCROW $85,000.00 11/21/03 WIRE TRANSFER — LAND PURCHASE $74,055.32 11/21/03 WIRE TRANSFER — LAND PURCHASE $237,754.10 TOTAL WIRE TRANSFERS OUT $425,874.23 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 2:04PM 11/25/03 CITY OF LA QUINTA BANK ID: DEF PAGE 1 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT ***NO CHECKS WERE USED FOR PRINT ALIGNMENT.*** 56324 11/25/03 &02141 DANNY RIOS 45.00 56325 11/25/03 &02142 DBX INC 5.00 56326 11/25/03 &02143 PALM SPRING PUMP INC 40.00 56327 11/25/03 &02144 DANIELLE ARIETA 50.00 56328 11/25/03 &02145 MARIA RAMOS 50.00 56329 11/25/03 &02146 TAWNA SHOOK 55.00 56330 11/25/03 &02147 KAREN STONE 300.00 56331 11/25/03 &02148 ELENA RUIZ 50.00 56332 11/25/03 ACE010 ACE HARDWARE 85.41 56333 11/25/03 ADT100 ADT SECURITY SVC INC 66.05 56334 11/25/03 AME175 AMERICAN FORENSIC NURSES 113.80 56335 11/25/03 AME200 AMERIPRIDE UNIFORM SVCS 57.32 56336 11/25/03 ARC101 ARCH WIRELESS 1166.48 56337 11/25/03 ATC010 ATCO INTERNATIONAL 704.95 56338 11/25/03 BAN015 DAVE BANG ASSOCIATES INC 642.33 56339 11/25/03 BER150 BERRYMAN & HENIGAR.INC 29564.36 56340 11/25/03 BI0100 BIO TOX 82.70 56341 11/25/03 CAD010 CADET UNIFORM SUPPLY 193.40 56342 11/25/03 CAL140 CAL CONTRACTORS SUPPLIES 107.93 56343 11/25/03 CAL237 CALIFORNIA OVERNIGHT 15.00 56344 11/25/03 CAL240 CALIFORNIA POOLS & SPAS 214.00 56345 11/25/03 CAR070 CARDIFF LIMOUSINE INC 669.50 56346 11/25/03 CAR300 CARQUEST 106.45 56347 11/25/03 CAR500 TIFFANY CARTER 500.00 56348 11/25/03 CDS100 CDS OFFICE PRODUCTS INC 938.51 56349 11/25/03 CDW050 CDW GOVERNMENT INC 592.39 56350 11/25/03 CEN300 CENTEX DESTINATION 5250.00 56351 11/25/03 CHE050 CHECKMATE EXCHANGE 244.69 56352 11/25/03 COA029 COACHELLA VLLY CHAP ICC 50.00 563.53 11/25/03 COA080 COACHELLA VALLEY WATER 108.80 56354 11/25/03 DEN100 CRISTINA DENIEL 261.84 56355 11/25/03 DEP150 DEPARTMENT OF JUSTICE 875.00 56356 11/25/03 DES012 DESERT CITIES CATERING 4278.21 56357 11/25/03 DES018 DESERT ELECTRIC SUPPLY 1291.92 56358 11/25/03 DES019 DESERT FIRE EXTINGUISHER 115.00 56359 11/25/03 DESO47 DESERT PHOTO LAB/STUDIO 62.21 56360 11/25/03 DES060 DESERT SUN PUBLISHING CO 2446.92 56361 11/25/03 DES065 DESERT TEMPS INC 2206.96 56362 11/25/03 DOU200 LES DOUGLAS 338.10 56363 11/25/03 DUN050 DUNN-EDWARDS CORP 385.74 56364 11/25/03 ECO100 ECONOLITE CONTROL PRODUCT 172.39 56365 11/25/03 ELM100 ELMS EQUIPMENT RENTAL INC 3006.52 56366 11/25/03 ENV050 ENVIRONMENTAL PRODUCTS 2000.00 56367 11/25/03 EQUO10 DALE EQUITZ 25.00 56368 11/25/03 EXP200 EXPRESS DETAIL 430.00 56369 11/25/03 FIR017 FIRST CHOICE SERVICES" 276.27 56370 11/25/03 FOU100 FOUNDATION FOR RETARDED 250.52 r 3 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 2:04PM 11/25/03 CITY OF LA QUINTA BANK ID: DEF PAGE 2 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT 56371 11/25/03 GCS010 GCS WESTERN POWER & EQUIP 2531.76 56372 11/25/03 GE0010 GEORGE'S GOODYEAR 27.50 56373 11/25/03 GMA100 GMA 41730.00 56374 11/25/03 GMS100 GMSR 74.48 56375 11/25/03 HEG050 HEGGE ELECTRICAL 3249.61 56376 11/25/03 HEI100 HEISLER LANDSCAPE 400.00 56377 11/25/03 HEN100 HENRY'S GLASS CO 631.34 56378 11/25/03 HEW100 HEWLETT-PACKARD CO 4252.89 56379 11/25/03 HIG010 HIGH TECH IRRIGATION INC 17.84 56380 11/25/03 HOA010 HUGH HOARD INC 548.76 56381 11/25/03 HOM030 HOME DEPOT 1458.40 56382 11/25/03 IMP150 IMPERIAL SIGN CO INC 206.88 56383 11/25/03 INF030 INFORMATION RESOURCES 250.00 5'6384 11/25/03 INF100 INFORMATION TECHNOLOGY 2497.57 56385 11/25/03 INT017 INTERNATL ASSC PLUMBING 150.00 56386 11/25/03 JAS100 JAS PACIFIC INC 19439.84 56387 11/25/03 JEN100 JENSEN'S FINEST 700.00 56388 11/25/03 JON120 TIMOTHY R. JONASSON 36.41 56389 11/25/03 JPRO10 JP REPROGRAPHICS 1319.96 56390 11/25/03 JUD010 JUDICIAL DATA SYSTEMS COR 118.23 56391 11/25/03 KAM100 KAMAN INDUSTRIAL TECH 131.60 56392 11/25/03 KIN100 KINER/GOODSELL ADVERTISNG 6752.11 56393 11/25/03 KIR050 RICHARD KIRKLAND 70.00 56394 11/25/03 KRI100 BRUCE KRIBBS CONSTRUCTION 9189.00 56395 11/25/03 KUS100 KUSTOM IMPRINTS 96.98 56396 11/25/03 LAN220 LANDMARK GEO-ENGINEERS & 419.00 56397 11/25/03 LAQ030 LA QUINTA CAR WASH 14.95 56398 11/25/03 LAQ074 LA QUINTA PALMS REALTY 600.00 56399 11/25/03 LEX100 LEXIS NEXIS MATTHEW BENDR 500.00 56400 11/25/03 L00010 LOCK SHOP INC 160.12 56401 11/25/03 LUN050 LUNDEEN PACIFIC CORP 4536.99 56402 11/25/03 MAR045 SALLY MARSHALL 308.00 56403 11/25/03 MDS100 MDS CONSULTING 2520.00 56404 11/25/03 MOB200 MOBILE SATELLITE VENTURES 219.56 56405 11/25/03 M00095 MOORE MAINTENANCE & 5101.93 56406 11/25/03 MOY100 RICARDO MOYA DBA 330.00 56407 11/25/03 MSC100 M-S CASH DRAWER CORP 98.09 56408 11/25/03 MUN010 MUNI FINANCIAL SERV INC 3160.81 56409 11/25/03 MUN175 IRVING MUNOWITZ 525.00 56410 11/25/03 NAT033 NATIONAL SAFETY COUNCIL 280.00 56411 11/25/03 NAW010 RON NAWROCKI 653.00 56412 11/25/03 NAW011 AIRI ANNA LIISA NAWROCKI 147.00 .56413 11/25/03 NEX010 NEXTEL COMMUNICATIONS 137.63 56414 11/25/03 NOR500 NORTH AMERICAN COMMUNICA- 343.25 56415 11/25/03 OFF005 OFFICE DEPOT INC 222.96 56416 11/25/03 PAL010 PALM SPRINGS DESERT RESRT 130000.00 56417 11/25/03 PAL400 PALMER COURSE DESIGN CO 3897.73 56418 11/25/03 POW300 POWER PERSONNEL INC 1123.20 56419 11/25/03 PRI020 THE PRINTING PLACE 62.50 46 !l ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 2:04PM 11/25/03 CITY OF LA QUINTA BANK ID: DEF PAGE 3 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT 56420 11/25/03 PUR100 PURKISS ROSE-RSI 525.00 56421 11/25/03 RAS020 RASA - ERIC NELSON 4607.00 56422 11/25/03 RAS035 CHARLOTTE RASHMI-GRAFF 315.00 56423 11/25/03 RES005 RESERVE ACCOUNT 4000.00 56424 11/25/03 REV050 REVENUE EXPERTS INC 1548.00 56425 11/25/03 RIV080 RIVERSIDE COUNTY HEALTH 2345.00 56426 11/25/03 RIV081 RIV COUNTY HEALTH SERVICE 81.00 56427 11/25/03 RIV100 RIVERSIDE COUNTY SHERIFFS 351595.58 56428 11/25/03 ROS010 ROSENOW SPEVACEK GROUP 48968.58 56429 11/25/03 RUI050 JOSE RUIZ 29.04 56430 11/25/03 SAX100 SAXON ENGINEERING SERVICE 10430.00 56431 11/25/03 SCA130 SCACEO 300.00 56432 11/25/03 SEL020 SELECT FIRST AID 129.25 56433 11/25/03 SIE075 SIERRA LANDSCAPE CO INC 3630.00 56434 11/25/03 SIM020 JAMES E SIMON CO 16718.24 56435 11/25/03 SMA010 SMART & FINAL 265.79 56436 11/25/03 SOU003 SOUND IMAGE 3095.23 56437 11/25/03 SOU008 SOUTHWEST MOBILE STORAGE 215.50 56438 11/25/03 SOU100 SOUTHLAND GEOTECHNICL INC 629.50 '56439 11/25/03 STA049 STAPLES BUSINESS ADVANTGE 1219.32 56440 11/25/03 ST0040 CAM STONE'S AUTOMOTIVE 2642.14 56441 11/25/03 SUD100 SUDHAKAR CO INTERNATIONAL 10796.32 56442 11/25/03 SUN075 SUNLINE TRANSIT AGENCY 972.75 56443 11/25/03 TEM100 TEMECULA COPIERS 1361.14 56444 11/25/03 TIM075 TIME WARNER CABLE 89.95 56445 11/25/03 TOP010 TOPS'N BARRICADES INC 1761.72 56446 11/25/03 TRA015 TRANSACTION TERMITE INC 600.00 56447 11/25/03 TRIO10 TRI LAKE CONSULTANTS INC 37285.50 56448 11/25/03 TRU010 TRULY NOLEN INC 133.00 56449 11/25/03 USB050 U.S.BANK TRUST NATL ASSOC 1530.00 56450 11/25/03 VAL005 VALLEY ANIMAL CLINIC 225.00 56451 11/25/03 VAL020 VALLEY PLUMBING 132.81 56452 11/25/03 VAL200 VALLEY PARTNERSHIP 146.00 56453 11/25/03 VCA100 VCA CODE GROUP 1725.00 56454 11/25/03 VER200 VERIZON 334.76 56455 11/25/03 WAL010 WAL MART COMMUNITY 120.47 56456 11/25/03 WIR100 WIRELESS WEST 287.90 56457 11/25/03 XER012 XEROX CORPORATION 229.51 56458 11/25/03 YOU100 YOUNG ENGINEERING SERVICE 6860.00 CHECK TOTAL 829,615.55 27 r-I r-I N H N M V' V' 1- In l0 I, O O V' H E-I z M 0 In CN ri U (- N N V' V' V• 'V� V' t` V' V' V' d' r-I r-1 r-1 N N N N N ri N N N N w a r-1 H r-1 E-H H H r-1 H r-I H e1 H ri H r-I H ri E-+ r-1 H '-1 H r l H ri H M ri E-H O O O O O O O O O O O O O O O O r♦ V LI) O O O O OD N M .--1 z W H z In O O O t!) O O 2: ?I :: O V' V' un Ln In O M Ln 00 M M r-I r 1 Ln a O O O o o 0 0 0 0 O 0 o 0 0 0 0 .1 Vw In O o OD Lr .W Sri a 0 w V' O LO O Lr V O o O Ln L. 00 10 W M .� > O H H M rI w n w z a v A a >4 a U) a w a w a a a s w z 4 4 FC W 4 A 4 A 4 4 H 4. 0 A 0 0 0 00 0 W 0 H 0 a 0 E+ a W o H H 0 to H � p4 0 E-+ � a� 0 H U) q 0 H Z H x f� E-E H H --IH P° M w H a 0 am a a s 04 a U a m a �aa a v) a >> a a OH > a A O A 8 O A A A O A A Q G] A O A A O A O A A w H O A !n to O A (DO z A z H U U) z x z w z x z w z z o W z a z W z x z W z x z W z D z w z z a w a a z W z w H z x w to W A w> w w> w w> W w> w w> w w> W w> w w> W a> a a > O> O U) . O w a a a a a a a a M LO a N x H A a OD Lo r- O � > 1. z > z f� V lG V'_ _ M _ r-1 Ln C M m 0) %r __ m L m OD O_ON H A H H 'z 0) V' M V' OD V' Ol V r- V' OD O r- Ol l— 01 OD W fM M A N N N N N 00 Ln Ln ri a H a4 a ao w m a � o o w H a In N o 0 0 0 0 0 0 0 Ln W A ri M M II') O O O O O O O O O O O O O O I- tO r- to OD In M tG z M M U) O tO r-1 (n lO m W M %D W O ON O 0) O 0) O 0) O �O V' N N V' N N r- tO tO tO W H z O O O N O O O O O O O O O O O Ln 1` Ln -4 0 ri O N O O O r- O O O O O O M m M m N U U -4 r-1 r-I r♦ '-i .--1 ri r-1 r-1 ri ri r-1 '-I r� 0 O O 0 0 0 O ri Cl ri o ri 0 ri 0 H 0 r-1 O r♦ U) W (A a U > U U U A z fn M H H H $ LO at e-+ / vi 0 I" Q a v>i z 0 pW O pwp�� H H w W r� W H z W O H z H a RC w O o x z O H H 3 A a a s A H H 0 x U a A U) U) a U U a Cl H z uwi uWi a z E H H Z w 04 Oz a z Q A as E U) H rw z O w > '1 N M LO W w 00 O O O In O O >4 '-/ ri ri ri V' r-1 V r♦ V' r-I V• ri -4 O O r♦ O r 4 I� f-i - O N U H U H N O N O N O N O N O N O N O N O W H H W W 6 00 r O O1 N O ri N M C o w 0) O O r-I N M C u) —1 H e-1 r-1 r--1 r-i H r--1 ri r-1 r1 N N N N N N H z M O \ x N ,-i U r V' w r -W qr qT -V cr qT q, r V' � qw V. v w r-I r-I N N N ri N N N N N N N N H N N N N N N W � '-i r-I ri ri r-1 r-1 r-I r4 r-I r-I H r-I H r-i ri H r-I r-I .-f r-1 m H H H H H H H H E+ H H H H H H H H E1 E-E H Ha r M OD N O M l0 O O O O O O O O Ln O (N u) O co M �..� [- u) -W M O O N O O O O O r H O OD ri O N ON ri Z 2 to N N N l0 o r O o u7 L O N O 61 M u) O r D w aro t0 Vw r-1 W m O O N r u) 0o O) r O H N t0 V7 O (+') 1.f) 01 N 01 O r-1 Q 0 H ci+ O r-I H N 00 u7 M t0 O O M ON M M r V' 0 w co rn Ln W r-I r oWG to U > u) ri r-I x cn of N a H H cn W Ei H W H a a a a A � a U U U U U V a a a Q F1: 0 4 cn U) > > > > > > 4 A RC z H E-1 H a H z' z cn cn to Cl) o cn H O H E 4 0 0 0 0 cn 0 0 0 0 0 0 0 W" H H H H U U x x x x x x H a H E4 OE-4 U 4 U U V U U U m H 0 a H a 0 > U) 04 0 M W W o4 W O H P) z 0 x U x U W x w x W x W x W x W x fL 04 g A w w �a w a w a w a m w to H >% z U A z x A z H a H A a z H A x z z U U U U (i U z z H z a o 0 0 0 0 a o o z a H cn W w > w 0 W > a Q+ w w (L > a w > Fti FL FCC FC FC W x w > O > w H w H w H w H w H w H w a > Oa A FC o::) rx oc a 1 a 1 a s o z z z z z z fn w cn U) cn M ar w 04 a a w co 0 0 x x m w 44 U W N r-I ri H A w 10 rn rn O O >> W m N M O cn O M u7 V' r OD OD Ol O r-IN u) V' OD 00 r N N O z O) N N OD (%j M M Vw V' u7 u) u7 N M o 0 0 m m sr M O O r r u) Oo aD w 00 w O LO r W W t0 to W t0 H z M O O r N N N N N N N N r-1 r r A r-1 r-I Ol Ol u) H ri w V' V W Vr V Vw lw ri o r-1 .-1 H O O h a m W m a 1 0 0 w H o o r r r r r r W o 0 0 0 0 o r W t0 V' (N ri o O to u7 u) u) u7 Ln OD O O O O O O V' t0 O0 OD t0 o O to N u) Ln u7 u) Ln O O O o O O 00 M M r-1 o u) m m m m 01 M O1 r r r r r r m z M O O N o 0 0 0 0 0 0 0 O r-1 r-I ri r-1 ri r-i O tp r r t0 t0 t0 t0 t0 t0 w t0 t0 t0 W to w t0 W W r M iM V' V' M M N (N N N N N, r i r M cr r fM V V' U') u) u) u7 N N u) w) u7 u1 to to O u) u7 u) o u) u) u) 0 ri sr C r r c V' Vr sr M M M a U U ri r-1 ri r-I ri H r-) ri r-1 - r-4 ri ri r-4 ri r-i r-I ri ri r-I H r� O o 0 a a 0 0 0 0 0 0 a o O O O O o a O ri r-1 ri ri ar tT r-i r-i r-i ri ri r-I r-i ri ri ri H r 4 ra H U � W H H H H H H H H a WH a a a a a a a a a a a a U) H C7 0 U' Ur 0 0 U (D a A A D A D u) O O U H H H H H H H H f/) fn m m m fn fn 14 H H 0 z z z z z z z z a FC Cl) H H cn W W W W W W W W a H 1 0) rr+ FC U) x x x x x x x x o 0 0 0 0 0 a _ a a s �� w w �, �, �, •� w r=.r w w w w H H H H H H H a2 a H o a a a a aa oa gx H H m >, > yH >4 >4>4>4 >4 H H H H H H H U a 00 W wwwwww g U O U > a w a w a w a w a w a w x w x w 0 H A < A 4 A 4 A 4 A 4 A 4 a 4 H H FC A m m m m m m m m m U U U V U V U H w z 0 W > H O O LO O O o O O o O O O O O O O o O O A O ri r4 r-1 o u7 u7 to 0 u7 u) 0 o 1-1 r-I ri ri ri r-I -r O yr r-I rU O O O H r-i ri ri r-I r-I r 4 ri ra CD O O O O o r-I U H U U z a oc x 0c 0c a Pc x 0 A A A A A A a U H a H H FC w w w w w w w w H FC FC Q K 4 4 < 4 U 44 m m m m m m m m m m O D U U U U V M ri 00 Ol O r-1 N M V' N V' V' N LO l0 ri N N (M M M M ON M ri C) E z O CN � M u 1— 1- r-( E4 r-Iri N N N N N .--1 N ra � ri r-1 r• 4 r-I r-I r-I .-4 ri r-I r-I r-I 1-4 ri r-4 a co EE+ E E E E E E E E E E E E E E r M 0 0 0 o In In In o Ul IV o ri E O O O N M V' l0 O V' O M O V' N O r-I z w E z t(l 1: r� Ol O r1 4 O Ol 01 N O C O O ri Co O l0 N l0 N O N O 0) Ill ri (Y) Ui O r I r-( l0 Ul I- N U7 N r-( ri Q Ul a ('M O O O LO O ri ON O a> Ol O O U') V' O LO M O ko I` Ul z Ol l0 O 00 N O V o r4 .-4 O ko 0 o (n rn z LO � r•4 N H 4.0 r-I E U) ON to CN N a 0 W U) H a a E a z H E-4 HH U H M fn w H U H H w EE-I H >> E A W 2x F 0) E-4�(nO E-4 E-4 E-4 2 cC-4 O HE-4 E-4 ax4 H a a z z a o oc C w w w x m a co V) a a s cn a O zz x ia 9 a QHQ �L H Q& H O O O W W O A w O A A O A n4 04 O A fn a: z U z z z HHZ cn A w z a H s H c4 H A z A A z z H AAZ H E A z z z W W z W H U W a w z z W a W 4< I4 w o w a a w Ow w o w 3 3 w W W > w> D A> U> a a a> rw > a a> E> w> W U) > E A > 0 0 x W W W W a::) o w z E U) o w w w a a w x cn U) U a H A CG l� 1- to 00 00 H r-I ri Ol ON 0) 0) ri 00 0 r-1 r-1 r-I >j 1 > 1— O0 W V• 0) M al V' r-I l0 M r•1 r♦ .-4 V' Ol 00 M M M N M LO Or-Ir r-I H A H N ko k Ol O O Co V' 'V N z cr) U7 H z ri rl H V' r-I r1 ri N N U I— ri A V' M M N 1- 1- r- . I ri QI (Y) M H x a av w w a 1 O O csw H p; O M O O M ON M O ri H .-4 ao M O O W o a o O Ul sr N O ri r-I r4 ri 0o o O 1Yi O to O O l0 to l0 O 00 00 00 M U') O O LO 0) Ol M Ol M 0) M M M M m M M Ol z IV O O O r-I r-I -4 w Cl O O V' O O V' tD t0 l0 to W W N r- l� cp t0 1� W E z (V) M ri r-A r-i O N N N O M to r 1 rj U7 Ul Lo Ul O O O O O O O O Ul al LO 0 ri M V' N Ill Ill V) O Ul Ul U7 O (rl IV M U U ri ri ri rl ri r♦ r-i r-1 N N N ri ri ri ri O O O O O O O O O O O O O O O ri ri r-I r4 Ul In Ul r♦ Ul Ul Ill ri ri ri ri U U U WW U H H H H H U z14 w w � z o z w U)z H Ho U a > S 8 � s z z U a O w w o w a w w w H x x a H H H !�H a w w H IH-7 V cwi cwi w w A z z z z E-E E E H H W A E E H a a a: 64 V] Cl) U) >+ w 44 > a o O o w w w w z rJ4 w o k w I[s1 w w H A ,) A 0 0 C9 W a H H H A a a a w E-4U U U a S a A a FC FC a 4 w H Cl) A U) A a A - z w w x W x O I -a W z FC U FC U RC U RC U U U U E U U U U U U U z O a 1� 0 0 O 0 0 0 0 0 0 O O o o ON 'a M -W V r- O O O O O O Ul O U7 Ul N O }I N N N CD M Mp Ill ri ri O M 0 0 O pM O A A w x x O U H �U FC U FC UU FC FC U FC UUU FC Q FC U UU U U UU U 30 O Q W r lD M r a O M O ri Ln w r m m N N N M ri M r1 M r-i rA r-q V O E/ z M O an 04 � x r-i _ N N N r-i N r1 N N N N r-q r-I H H rl r-I rl ri r 4 r-I r-1 H r-1 H H r-I a 04 E-4 E-+ e• E+ H EH E-4 E. E+ EA E-+ H H H E-4 E-, r M O O O O r-I N O V' r r O Ln 0 O O ri Ea OD O OD O O N ON O V' r H O r O N tD .--I z W EA z N M rl O OD r 4 to O r-1 to r OD lD C4 M 2 D 01 H lD r I to r Ol r-4 *w N OD w er %D O >4 O N M Ln N N ri M Ol r a a O ri N O r-1 N O OD OD O N 01 O N O O r-1 N OD r I to N lD 04 W to O tD r r rn r+ lD V V' r-1 N cn OD H N N ri r-I N O z cn Cl) U H ( n cn cn cn a W x O o Ei 0 0 a H a a A z a a A W. x a� w z E� E-E FC E-H A 0 0 E 1 z E-+ FC E-4 F4 E+ a s E+ z E-4 U z O O O O O O O W O O O O 0 0 0 0 O 7 H W H E 1 E+ a E-4 a s E-+ a E-4 E 1 U E-4 z z E-+ H z z z E-H W M U E-4 U U x Oa m O 9 O O E-H H H H D H 04 04 > > 04 W 04 04 fY, cn p4 to 04 H H 04 04 W W w 04 E-H W OH 8 cn cn °A 8 z z 8 8 I S a OA cHi E-40U A a H H H oA A z U z lx I x z A w z H H z A z A z r.0 z w W z U z 04 04 z z H M W W > W w W y > W 5 O H w a a W a D z w a a W cn 9 cn m. W W > W W > > E-4 z D Gu A FC d o$ o z z z D A A A o w 0) 3 3 Ei co cn x cn F:4 H H cn �C FC �C U 04 O O V M H A 04 O V V V . 0 14 M M O O LO r-I Ln m M M > l CQ W %D 01 OD O O Ol a• to N N N �o z O O OD 4.0 0) tD OD OD r♦ N N N 01 Ol H A r r 01 O1 O O c -W O r r r O H z O O v V -1 ri OD OD fn ri r-I r-I r-I ri A �p tp cn r f"1 M A N N N r'1 Ln H x a as W am a l O o w E� o m. o 0 o rn qw o W O O O OD OD O V H O Ln O O O r M O O O O Ln LO O co %D O Ln O O Co Ln to O r-4 r-1 r 0) Ol M M 01 m 01 rl M M m to lD z M M M 00 O O O O O In v v O O rA W ko r r w W to W U-) V' E-1 z N N r I r-1 r-1 r-i -W N lD r-I r 1 ri '1 r♦ V' 0 rJ' O O Ln O O O Un O LO N O O O O u) O O N N r-1 en M 04 V' N V' r N N V' M M O U (,) - r-i ri ri ri r♦ ri r-I r1 r-I r-1 r-1 ri rl ri ri r-I - �; 0 0 O O O O O O 0 0 0 0 0 O 0 0 r I ri r-I r-1 H ri ri 14 r-I V' r-1 r-1 r-I r-1 r-i -1 U U U W O O U n A w w w w z a uxi Ei E+ U U H a H D D z z z z H H a' a E1 Ei H H H H M 3 3 E-4 E-4 cn x x x x �' am am in a s w U H k can 0a4 H H a a s H w w cn a w D D D D RC AC z O O w � O o a a a a a s W o E+ E+ H w a 0 0 z z z z E W H z z H U a w H [L4 x w x a D cn D cn D cn D cn w E-4 w E-4 D 4 H W W z H E-4 E 1 E 1 P E4 E-+ E-H Ea E-+ E-+ E+ E+ E• 04 04 04 04 a a a a 04 04 04 04 z a U U cn w w w w w w w W w (4 W $ o o H a a w a w cn w U)cn w w w N w cn w cn w O W M w cn w U)°i W cn z U U U A A A A A ca A A A 0 A on z p > o o O o o N oD 0) r r o 0 0 0 �n U-)D co OD O Ln LO r-1 r4 ri V' V %D to w w to lD 0 o ri 14 ri O Co 0 0 0 0 0 0 0 0 0 U EEC 4 8 z a a cn cn cn cn cn cn cn cn cn cn cn U H O W W W W W W W W W w W w W W A`� a U U U A A A A A A A Q A A A A A 9 M LO qw Ln t0 r co 0) O O .-1 r1 N Ln N a CY) W a C cw *w Ln N N Ln N Ln Ln 0. N E-L z . M O Ln N x r-i W H N N N cr N IV N -r N -W N -W N qw N r-L N H H N C7 a Q pq '-1 H T--1 E-L H H r-1 H ri E-H H H r-1 E+ H H H H ri H ri H H H rq H ri H I r•i H r M O t.O O C' Ol M N C O O O O O O O ri -4 H N N ko r H E-{ z W H z lC r LO N ri O r Ln N r r ri Ol N O O N O M Ol 0) r r N V; N rt (Y) aD LY1 0) lD Ln M (Y) O M r r-1 N -T H H H U')N . 0 N N a W M O H C r Ol M N Ln O O O O O O r N N Ln 1, O O M Ln co L4' N H r LD O E. O Ui O z Ln N O M r >+ O >I Ln N M M a H CD CDm a N �Hy �G N W W N 14 1-1 W A A 04 x H 0 H 0 w w a a a a s a Ems+ a 0 a FC W FC w H 1-4,r. H 4 w a Fc H FC a 0 Q 4 a E+ z E-+ H x E-+ a a H H H H Fc z U U H H E-L 04 H � 40 ►-+ 0 0 0 U)0 w w 0 14 W 0 w W HH �. U) EEr W E-4 EA z E-L H H H x H H H FC H 04 w H x a4 E+ W x U H H a H H Z 0 H a U)a 0 U a z w z W a cn Fc a > a 3 a D U) D cn P.,Fc U U a a 0 H U U 0 U 0 W 0 0 A a 04g 3 0 A U z 0 Cl w a S W 0 W A h h 0 A W > z pG U FFCC a4 FC A aG z Da w z H A a z a Fc z aL a z In z H z U z w w z w w z a H (n H H W H W 04 W z W H H W W w d4 W H w Gu fJ4 W 44 rr, W w W z z > cn > a > C9 > D '> > a > > x > 44 W > FC 4 > w A 0 0 z D H a s H FG w 0 0 H H 3 cn U U H W !n W W 04 > U U to U) fn U44 W rn o o Ln H A a Ol p M l0 O M > z I > z m X: -W r-1 N M Ln O .O LO O r-1 l0 Ol O O O r r to O M O M O M M O H A H H D z r•1 H r-4 H O 0) 01 Ln O O r O I M Ln Ln Ol qwqw ON 01 ri Ol r-1 Ln lfl Q CV) (Y) r 1 N a C O N Ln Ln W W >C H �Y, a at w w a I o 0 W H x � a N r rn o 0 0 o r-1 0 o r o M W m m ON Ln W 00 H tG O O O O O O O O Ln O O co O -W O O O Ln W z Ln O Ln O Ol O (n O ri N Ln .-4 Ln H r 1 N Ol O ON H M O M O LM O (Y) O Ol r1 In Ln W H V' In C' Ln N O M Ln cl' Ln M Ln M Ln O O ri Ln ri O M Ln M Ln M Ln tG Ln r•i O 0 (V) (Y) N C' a' V' CL O M Ln r 1 r-1 qr cP In U U� H 0 r-L 0 r21 o H O H O H Cl r-1 o w c H O H o H 0 H 0 H 0 H 0 r-1 O H ri ri ri ri ri r-i N ri Ln r-i r-1 r-1 ri Ln H U U w H Q A D A A W O a s H U) U) Q W H F � U U La o a a w w 0 >> w w a z z O w a oG a W w a4 a 3 Lon 04 H H U z z z a H � U) a 0 as 0 0 04 I to A U a a z H w A H H z z a a z H H C 3 H a z w x x H H H H D 0 Q W H a a W s W z 0 a W w U) U U H FC H Fc U) W s+ D a H a E-H s A 1 0 a w H H A A 3 Fc x w w z z U) m H w a cn cn z z a 0 cn cn cn z D 0 U 1: a E s > z �a a x o4 H C4 H D 0 D 0 U) U V) A z W A W A w a A w W W W Q W rX4 w W rX4 t9 H z w 0 W > Ln Ln CD O o O CD p p O r r o 0 0 D 0 yL O O O N Ln O o -4 0 r-1 0 r-1 Ln O r-I O o N r-L O r-i O o r-1 0 r-i r� O U U E4 H m w cn w D 0 z 0 U E 1.44 z > z D a a x Z H Z H D 00 D cn U a U A A A A w w w w w w W r=. rra Ga 0 3 10 M sm M to w r OD m V' O ri N fM V' U) k0 U-) to N U) to U7 0 0 N l0 l0 to l0 W w l0 H O z M O U-) C-4 �o x . I N N r♦ N N N N N H N N N N N N N H ri r-1 r-1 rl H H r-1 H H . H ri r l H r♦ H a GA H H H H H H H H H H H H H H H H r M O O O co r-1 O O O O u1 r-1 tf') E.4 U) O O d' O W O (D O M l0 N OD N O N r 1 W 2 N U) O C' M l0 O O O ri Ol M r M 01 M 2: :D to y r O M tf) 01 r-1 -4 O H > 4 O vW H N H H N M a � � �o O O OD H o sr rn r to o -W OD M H r O W C 01 O Qp rI \0 N r M N U M W r d' O A (Y) H M H N (n M C' - 3 a A H U w w w w C4 O a a a a H H E H a Q s w a Q a H FC O< s a < H z O H O Q'i EH 114 O U) z O 4 H O < Cn H O z H z H z H z H H 0; H (n E-4 O 3 H H FG H H H U H H Eo- `.4 C0-1 n EO-+ P+ W EO-1 EU1 H H W C)i c a W x U) a (9 a H a a a a a x a > < oc a H tea' a M a w w 0" 0 w w 0 U o 00 z z z z o 040 440 O w o W w a > w A C4 p4 A z A H A H H H H H A W A a 0 A H A G4 0G W z U z z 9 z (n z H H H H z W z 1-I z A H z a z N H cn W W W W w � W x x x x w E-+ W a W U) In W 04 W U U W W > x x> > a> 0 0 0 0> �> W> > w> FC FC W A H H w (� H H H H x L11 04 D > > 04 v) H H cn a a a a a cn w rC x (n x x G+ U W N m M 1 > I > in w l0 O Co m 0 N r-1 O N N LO M M -4 z z $' M 1-1 1-1 O O O O r-I l0 OD O O r to M C H A H ,"7. M C' 1 U) m m m M U) -4 01 M OD U) O LO H z t0 l0 M V 1--1 M M M O r c' -T ri rn 0) On (] qw C O V' r-1 r-1 H ri lM r M M M M H ,zYr a FC W ao a 1 0 o w H x o 0 0 0 0 0 0 o r♦ o .-4 o 0 0 0 0 W to an O 0 0 0 0 0 ra o 9-+ 0 O O r-4 O pq �0 0 0 0 0 0 O ko o OD 0 0 0 %n o a% a1 to ri ri r-I r-I r-1 ri r-i M U) ri r-1 Ol 14 7., ri H O O N N N N N N O to N N O N l0 to t0 %0 l0 w w w to (0 r OD lD l0 W W H W ri O ri O M N r4 O r U7 9-1 U) r-I to r to 'v' U) r-I O N O N O r1 to r u) N O N O O to to r r-1 M N N M 1w m U) U) N M N N U U ri r-I r-1 r-1 ri 1-4 r-1 r 4 r-I r-/ N N r4 H H ri Q, O O O O O O O O O O O O O O O O U) to V' r-1 r-I r-1 ri r-I r-1 r-1 U) In r-i r-I r-1 1-1 U z H z 0 a ta� W W RC FC FC 44 U G1 c] C7 to > >+ U U U U U H U U U Q A A H H H H v, cn G4 z z z 00 a a a W A a H H H a s w H w w w w �4 a z t U)U)a a a a cn 1 H 1 E-1 U W 0 0 0 a W H x x x >i Ol 0 ((D w w w w >4 W Q a o: a4 x 0 0 0 0 cn x a s x x x x a O 00 cn E 0 W 0 w 0 W 0 w H W z W 3 W 3 W H O O O En A z W W H 174 W z 0 > O O 0 0 0 0 0 0 o O 0 0 0 0 0 0 A r-+ ri O 0 o to to to o 0 0 o r-I r q 14 1-1 O> 4 0 o ra r 4 O o 0 o ri 1-4 r-I r-I O 0 0 0 U H 00 (n 0 0 0 0 H z 3 3 (7 < 4 4 U H W w z: E w w w w w w w w ►-+ O O O ` < U 0 (7 0 U x x x x x x x x x x x x J) 11 r r 1n O0 Ol O H W O N r OD ON O H N CV) tG N lO tO r r N N r N N N M M m M O '-1 E z m O In N r � x U � r �r �� � r �r a• r r r r r r r ri W E N .'-� N N N N �--� N N r♦ �-'� e--1 �'"� �"� '"'� ri c� a ri H ri ri H ri ri ri ri ,� r� .� ,� ri ri a o4 E E E E E E E E E E E E-+ E( E E E r M to l0 W M r ao O r O NV O ri Ln Lo W O ri E-I N OD O W OD 00 0 LO O OD O 1w . 10 Ln N lC ri W M ri Ol to ri l0 O r O Ql O lD . N V z ,z =) H O 0) r OD O In Ol (n M O M N N N (n }I O ri V' r H N N V' H C r ri 1-1 < N rI a to o OD o r o v O r �r OD o In o OD 0 a Co r o rn 0 �o VW Ln O W (n ON tf) (h O m In sr N x N V H V• r ri U N 0l r-I 0 00 O H EA 4 M:4 z 4 z Fti E Q E Q E a4 U E KC E a 0:4 a E U E z E E 0 1% 0 0 0 �C o E o o > o w o x o H E E E 0a E F4 H E rn E O E E-1 U H H a a x W W 0 W C4 a W 04 H Q4 x rz E C4 w a a4 o ff W S w w W W o o w o a a U) o a s U o 0 >4 o 4 0 a o a m w w 0 >• Qc C4 H a H a H a H a a z rn a z >1 O z L 7 z z W z 9 z o z m z EI E E F1 z H U Cl) U z W a a a a W W a W o W m w E W H (4 z W z z z z W < > - a a a a > U > a > H > z > z > a > H > H H H H a > o o C) o w z a w O o w a a a x Cl) x cn x x w ca W o z U x a a a a a 0 IUi A A4 In m w N 1n 0 M M v ri W Ol w mO w r o r M z' z z Ol O O N O O M ri r H r Ln w H M H Q H M V' N N M r-I O M I (n co (n cr M l0 O H z m o ri ri o k0 to W 11 H 'V' r Ol N V a M OD 00 OD W M M 04 o Ixl N lO ri r r H x a at w cn a 1 0 0 w E pfi O O r 0 (o ri O O O r O O O O N N o V' O N r O o 0 V O O O O M M G[1 O O OD O O Ul O O O (O O O O O In Ln ri M M m (Y) 01 M U') 0) LO M (P) to r Ln Ln z N 0 0 0 0 O 0 (n V• O O Cl O v O o OD W w w w w E z r M cP r C ri V' H ri C ri CV) M N r r ^� (n (n In 1O In O O O LO Lr) o N N O N N O (V) V' V' M V' M 1-4 to (M (V) N r r V r r U U r-I r-i ri r-( ri ri .--1 r♦ ri H ri ri r-1 '-i ri ri a o 0 0 0 o O O 0 0 0 o O 0 0 0 0 .-I ri H ri ri ri r-I (o ri ri ri V' qr ri V' v O z U W O GO M H a o a O rn a U U U U LnOU U) U U E a U W 14 • U z v) z H H H H a E H o a a a a 1 Izq H z 1-3 rC a E E EI E U) O O W W E a4 O O O O s E E rZ+ H v� cz 0 O C) O 0 O 0 O a z H FC o x a- w a a w a a w a w a r-1 H E z U rC - z x x a a a oc a x a a y, 01 a a4 a W E-I w w w w a x w w w w W 0 o w 0 x ac 0c 0c a rC O C7 z z z z a w [sa E V) z E r�--77 a a o 0 0 o E z z z w H a a a a W z x ].' �. x x H H H H h h E h h h h E Gu W z 0 > O o 0 0 0 0 0 Cl r Co 0 0 0 0 0 0 O ri M M M M 10 M o r♦ Co O N 1-1 ri ri ri 0 >4 O O o 0 0 '-I o 1-4 O ri ri r 1 O O O O U E-1 rc � z E E a w w E V) z z a a a Pc U H 0 O o 0 0 z z z z w o a a a a 12 C7 V' Lr) tO r O 01 C O H N LO M W M 01 r r r r r r r rM OD OD OD M O H O z M O N OD I x U cr c sr c cw r H N N N N N N N H N N N H N H H H H a H H H H H H H H H H H H H H H a m H H H H H H E+ H EH H H H E-H r M M O N m o 0 0 o OD o an o 0 E4 N Vw H VW l0 o O O o 0 01 O Ol O O H W z• OD H O M N O N tD 01 V' O O H H N t0 N t0 r OD LO Ln (M H H C) O H H to V' r U-)M `N d' l0 d' H O a W M O H O o O o LO o m N tp H O O Ol O 01 O 01 C0 H O H E-H N E- O l0 01 C' U O fn H H M H U U In 0l r 0+ OD Ol H H Q O H H U A A r- U zA rn a Wo Pw4 °a °a a H w H H H H a z a s 0c H Kc U a ° a a H H c� )� a aa' a ca w o a a 4 a 4 H AC H FC A H W Ha W E+ H H a W 3 Q) z H 3 FC FC H z Ei x E+ W E 4 a z 0 0 4 H H O O z a a 0 m o 04 a H 0 O 0 0 cA O o4 0 z W H El H E+ H W w O H F. E+ N E-H H a E 1 H Ei 4 H � H r�- U E• U a 3 3 A O S x a H 3 a H w i4 a cn cn fz 4 w w Pb a 04 H w 0 W4 9c 94 FC 04 m 4 rx O H O 0 O W W O U z z g 0+ 0 m z -, ►-+ 0 m 0 E-+ 0 A W O a A v7 O H w H > C 4 A z .0 H H A A a 0 ?+ A v) z H z U z H z a a z v qT v z 0 z w oc z w z z U z W U) H cn w >> �4 W G+ a4 W o 0 0 W > W 04 H W >+ W > a W 0-4 W W > H W >CQ q p ,a" :> M M M Q> O H O> H W 04 W U) a cn U) o O O H U) a, U > G.4 > FC 3 o OD H A R; in LOI M N M m N > U') r N av cr O H O r OD '>> W N N m 01 Ol OD 0) H L H �"1 H A H 'CD r O O r r r N d' U O H W N I I 0 z V V H U e-i U O H 01 H 0) H H N a LO r a Ol H r H x a m owo a 0 0 w H N N N O O O O O O H O O W O Nr V' N N N Cl O O O O O Ln O o (q O OD OD OD OD OD O O O O O O W O O M l'M CM In fM (Y) M m M M LO 0) U') H z O O O O C d' M l0 O o Cl O H m %D r � H z H qm IT M N O V' C t0 cM f'M O H O H LAO to Lo O O O to 01 Ln Ln Ln N O H O 0 M a' H 0) 0) M %0 C' C' N r Ln r N U U H H H H � l0 H H H H H H H H H a o o 0 o O o 0 0 o o o O o o O H H H H C v H sr H H H C Ln qw H ap 0 0 A z z z 0 w U) x x H ,H H L) L a H wm U U x oc x D A D w a w W w w w w a x x w M E-H H E+ > > > E-H E-4 H z x W W O A A A w fn V) H Cl) G4 x O a s A z. 3 O H H 0 0 0 U) U)H pa, a s a U U U H W E E-4 a• W W W EnH o 0o44 a I E FC E v) Ems-+ to u7 cn v7 d4 04 U)cn m m m a w U w H p a s A A A H m A A 0 O x H 0 0 x 040G H x H E+ W H H H 0 C7 U A z x x x z z z 1-1 1-1 ax 0 D Ol Lh z w H H w w w U U U H OI OI xo w zzz U U) z waz H H H aa a a 4 a CO x m m m a a z0 > O o 0 0 0 0 0 0 0 0 0 0 0 o Z:) H O Co O O O U-) O O O O N CY) r O p H H H H H O H H H H N O O 14 k A h H x H x H x H H a x a a x a 13 VW 00 u) OD tD 00 h OD 00 co h M 00 tM Ol O OD 0% ri 0) N Ol M 0) LO 0) tO 0) h 01 0) M O H z M O U7 N "-, rn x ri H (s� U H V• N Nr N V' N v N N h H h ri V' v N N V' N V• N N V' N V N qr N h ri a pq H H H H r-1 H r♦ H H H H H ri E-H ri H H H H H H H H H H H ri H 1-1 H H H h M H ri h N O O tO h O M M O ri M U) O r.l E-4 H O tD M O Cl LO O O m ON Co fM 0) ri OD H z w H z h M t0 O 00 O 01 O N M u) O V' u) N O x '3 0 u) H M ri O -WM O N u) H N O 00 M 00 00 OD M M I v U) tT N M a O O N H O1 al O O O O tp u) M Ol O O 01 O O O to 00 O Ol H � O 00 W H u) cn u) N G4 L M Gu N a z > H � C] Q H RC U) z 0 RC E+ 0 H 0 H H g H o H O VI FL' z E+ O o O 4 x H ago > > (n cn > to - Un �H 4 H 0 C7 z H o H o H In W H E-+ H H 04 H U H E-1 a a a w H H E+ H 0 A4 H 04 O 04 Q a 4 a a Q O CO-4 IZ U O x a U$ H z H O H H 04 04 H 04 N D; 0 z FC W IZ O cn w cn w W 04 W o x H > z 1Y, U 0 z [ U) z U cn U o Cl) z DO x z z 00 a z O O H H O H m 0 z ' a U a z HHHO a a a z a H u) W a W > U) >+ w b4 W U > o a 0 W > H W G7 > z W > a W W E-H ,> 4 H H zz a H z r� x H W w > H o w > a a 0::) a a a w a > a a U o U) x a H m v) f0 G4 a U) cn U) a U w H 0 a h 1` LO > I > O[1 Ol 1n h O H r l H M 0) O N OD O z z 2: t0 M M frl M O 00 OD 00 LI) 00 m V' M H a H D m H N N Ol O m M M h LO w 00 lD H q z N N tO (s] 00 h OD h N N O H ON 0) H H Cl H O N v N V' N V' N Ol N H .Y. a a� w as a 1 0 O w H 0 o N o o H o O is] h O O Ol O tD M M M O H t0 H H OD 00 O OD tD O O U) O tD tD tD t0 O OD z M O 01 O Cl O ON O Ol O u) - O u) M M M O O M O H N 0) O M O cn O cn O h tO h tO lO tO lO tO lO tD lO tO lD tO h h h N H z V h V' V' M M (n h N ri r♦ N N N N O D 0 u) V' Ln M U) V' U7 V' u) N N h Ul .i U7 O M. N U) N U7 N LO lM O U7 O u) O u) O O U U H H H H H .--1 H H H H H H N N N O O O O O O O O O O O O O O O Co N H H V' ri H 1-1 ri H r-1 In u) Lo h U) z oa4 04 JZ F4 w �s w kz w a a a a a a H > oy > w o c u w w w w u U u Ln H H H I A w w w a U z U z [•a H L*a H a a U) z H a a z z W W z W z w �C I H H U U Ei W H H H p >+ z cf) a H z z z z 0Ow A z O O a s H H H H 0 x W x (n x z ►-+ pq H a x w x w z w z w z o w 0 FC a �+ >� QI w a w 0 >+ a U a H w w 0: 04 w G4 w lz U U F"'1 w 0 A4 0 b4 0 w a A o 800800 H m111 w w z a s a s co E E E E x E E z 0 > o 0 0 o U) o O u) u) Ln Ln Cl Cl O o Cl O H H u) u) V' O O Ol Ol Ol 0) O O Co O ri 0 >4 U E+ O U O U O z O z O r-I U) 0 N co O O O O O O O O O O O O O H >4 O H UUU W r-1 co H U) O z n J U H U O a O s O a O s E z z1: z %-# 14 O ­4 N M OD m C C CA 0) LO t.0 N r OD O O 1-1 O 0) C VW O O LO LO O M Et 0. z r-I r-1 ri ri r1 O LO C%j o r 1 x r-4 r-1 . 1 r-1 N r-4 cV H ri N H N N ri N r 1 N CW7 Wm r-1 P r 1 E-0 ri E-+ ri E-t H E-4 rl Ei r-1 H r-4 E+ e-4 F H E-4 H H ri Ei r-1 E-1 r-I E-4 r-I E-4 H p r-1 Ei ri E-1 r M r-1 E-1 00 to to 0) 01 r-1 01 N O O O O O O O O O O O O O O (D d' M N N U-) N r'1 r O O � r-1 Z W Q E+ z D . l0 h OD . V� r tD . V� tD M . V' O h . to N LO . O M . O 1P) N O O M r qw rl O O to r a r♦ tD l0 r1 r M d M N N O O N O O O O M t0 to ri a 0 (r) r-1 r-1 OD O O O O O O O O lr) to N tD O 0h O W W w W W w W W w W O W tD W to N LO O OD N W M to wx r V r I r M ri M V M N O N O N 00 z W W M U) H z � a 0 o A A Q z z >> V') U) z E-4 v) H H 0 H Ei 0 H H A m 4 H &4 a Eq z a H E-4 H RC \ Z a E-t a 4 \ E-4 W z O w a z FC O EA a rC E-4 a U) a 4 z< Ei H E+ a) a D W O H Q Q A Q O E-t 04 O E-4 O H Q O E-1 Q z EA z 0 H O E+ E-4 O Z E-4 x a x 0 s E+ O U) E-4 w O Q O E-a z E4 D O U U H E• a a z H a x H a z H a X: W H O O EH W p E4 0+ H Ei 07 C4 oZ O r>; > w 2: x U) E+ W O w £ w = O U) O cn a U)O z OS 00 x Q M WWO HHO U) 0: w 0; O E4 0 x U z > z H a U U) w a FC U a 6 U a R U C� a Z �(', W U> W E-4 U)> Q Z El WHO U cA m w z -Z W a> U H a m m H z U W h O> A z w On H Z z w > WWO a w a a z W W 0: > a+ z W W a> a a a a w w> z W Z W 0 W Q> r00�GG U) A O a O a O a O a z H D W a U D a 0 a a C7 H 3 H m w Ei D to D v) D m w W UW H A O W OD Ol rA M cW N O to M N O NW .1 OD 0) 0) Lr) V' > 1 z H A > z H m �, D O M l0 O M tD O M l0 O M tD r M h LO to to to 0) N to LO ri 0) r V' OD h tf) C (D V' to N r w C' M O O 0) H Q z 01 N m N 0) N Cl N 0) 04 OD N OD N OD N OD N l0 M r-i d' W H N N (14 N OD N rv) 0) a m w 1 O O w E{ p4 w (n O O O O O O O O O O O O N 0) to 01 r-1 OD N (1 1n M to U-) O O O M tf) LO O O O O t0 t0 O w tD O O O O O 0 O O 0 M ui O O O z h t0 N r tD (14 r t0 N r t0 N 0) O t0 M O r an O tD m O t0 01 -W N 01 O tD m d' N In M t0 M M tD to M t0 r-I O r M O r to O t0 to O t0 E-4 z D O O O O O O O O O O O O O N O N to to M U) to M Ol r tD O O O r N r O O O M to r-t M tf) r 4 ('M to r-I N Co rl W to -W m O r-t cr) N r U U to N r O M r to M r O V' r r-4 O r1 r-1 O r t r-1 O r 1 H O c r♦ O H r-I O <r H O -4 r-I O r 1 r-1 O r-1 r-I O r-I rt O . I ri O r 1 r-1 O 1-4 r-I O a U H z H z H z H H U H U U O U) U) 1 H z E+ W OS U M a a a Q4 O O rC H H W H p o U') w w W to w to w m N U >+ U >4 z r1,' E-1 Q U Q U O U U z U z W U) W U) w Q �. 4 H Q H 4 H � H H M. W 44 (rE(,i� k1 H Fi H H H z D z O � FY U H H H E-4 Q U W � 1 Q S4 E-4Q yUy zU ZU zU FC O D 4 < U)O (�44 �4 O a4 O 1.4 4 z 0g U U H W O W A O W A 0 H c>+ O U H D H w H rw H w H w 0 Q z 4 z S Q� m 4 �a W W U U w W }Cl a W O A H D H z D H z D H z D z H > a 00 H E4 Q H E-+ RC z z O z z O z z O H a4 H E-4 x w E-t x W x Ei x O H w w H w w a FC E a Q U) E4 w Z w 04 a s z z z O O a a z 0 n O >r U E+ > O ri O z O r 4 O z O r-4 O z O r-1 O z to r r1 z ('M fM O E-4 (n M O Ei O r 1 O 3 O r-4 O 3 CD r-I O 3 i r 1 O 3 O r-1 O x Cl H O x O O LO a O to O O w 44 LO O O w w O 1-4 O a a O O c a U H D E < z z z z z z w z w z z 0 0 a a E-+ Q z to O ri l� O r-I 00 O r-I Ol O r-I r1 LO N In O r-1 r--1 r4 r-I ri N r-I ri M r4 ri V' H H to ri r-I ri ri In to I— H r'1 00 r-1 r" I 01 ri r'I M O .0 N \ 1-4 r 4 ri H W (7 a x H /� p N H H N ri EI N H H N ri H - r-1 H H H H H N r-i H N ri H N r-I H N H E-I N r-i H N ri H N r-I E-+ .-I r-I H r-4 ri H N H H N r-I H N r--1 H t` M r-i ri H z. W H z D r N sr m o N M N O Lo N o O In N 0 O O fM 0 O O 00 0 O ri l— 0 O N ­4 0 O N I- 0 O N w 0 O 9 r-I 0 O M ko 0 O r1 0 O O 0 O C 0 O M 0 O ri 0 O 07 >a Q M H rn lO 'Rr 00 M N cM cr N M O LO O on M I, z r� O I N fM O Ln N O O 10 O O [: O O Lo O O O O O 00 O O 1n a W Ol 00 W M w N H H ko N LO O tD C H M O O V' V LO r-I V' M N W a x z O a a cn a J E-1 00 U > EH O w A a rC A 4 H O as >+ H I� H O U > w U > U > U > U > U > U > U > a 4 H O a 4 H O w w E a 14 4 H o U) z O� H H H O cn a w E-H A vi a a w r>r E-E H ►a O H w x x a a W U H > z H Er a a U U H x a U z (n H U tea' E-+ a A z U cn w z H a A z H z m o H a A z a4 U w cxi d4 UU w u a4 U w L) a4 U w cxi `N4 U w cxi ?G U w u a4 U w u b4 U w cxi H a O a H S D$ z (z H a z O 44 w H 0 z r4 F+ H U z H a o z W x cn A W H x co a a A z E O U cn H U) H a) A W a> O H o> U W H �> W W U Ol> f-1 W a z a iT. a a a a a z a a W E" I > z> H W H o> a W H A> Q, W z RC W z> FC a a U44 H O z H p W I A H z H Fr J z %D ON m m 00 O N Ol N M r-f m O to r4 H m N N r-I Ol N 0 N m N M N m N -W N m N M H m N VW r-I m N N N m N lD r- ri 11 N ri r i N ri I` a) x N r- V) x O Ol �O M H a w aC. as cn I O H a o w a W m o o o v M In 00 ko In 0 o O r an 1n I` LO 0 I` LO 0 r 'In 0 r in 1n I` LO 1n I+ Io 0 r to 0 N rn In O o o ri ko M 00 Irn M 00 Ln %D O 1n C) z H LO o %o In 0 In rn 0 ON 0 Ol 0 ON 0 rn 0 rn 0 O's 0 rn 0 rn 0 rn 0 w ON 0 %D 1n -W ko rn o ko rn 0 W m 0 %o Ul 0 ko z p Q U m N (+ to LO V H O M sT Im ko N to C' N 0 V' N to V' N 0 C N 0 V' N 0 V N Un C N LO v N O N M 1r1 ri N u') M M LO M M to M ri Io N U Q r-1 O r-i O H o ri O r-1 O r-i O ri r-I O r 4 ri O ri ri O ri ri O r-I O r-I O r-4 O r-1 O ri Co r-i O ri O ri o ri M o U C.DU) H a) z H W U z 0 z 0 z 0 z 0 z 0 z 0 z 0 z 0 w C7 I z H Cx+ x H FC x W U > W x O In a W p c a W a U H cn a w V1 a w z w a w z to a w z m A w z m A w z w A w z 0 A w z A w z H E x r�C H z o cn Hz W >i H o >+ H z o H a FC x I W A H z a L:) o U O V) a a z H H z cn O a U H a w U H a w U H a w U H a w U H a w U H a w U H a w U H a w w � U U rC w a x w w U W U w Q >4 H a >+ OI z a W a a a H cn H a I �a I c I �a I I tea' I I �'a I o 14 > a o z W a U) a w a U) s w s o U a v, H z , D Q U w 0 >1 H w > a4 o O V� ►-1 a 0 O M 3 o N O H O o r-i a o N O W �a 0 N O O 0 N O W 0 N O U �a 0 N O Cl) �a 0 N o a) tea' 0 N 0 a) o` 0 N 0 Cl) 1.n M O cn �a owc LO o O cn o Lo O > a 0 O O > o 00 O > H 0D O > a � tH a a a a c� a� � a� a o a 16 c r-I N m v 0 lD r OD m o ri N M'V N %D r O M O r-I N M 1n lD r N N N N N N N N N Q ri ri r-i r-1 ri r-1 r-I ri r-I ri r-1 r-1 r-1 ri r-i e--1 ri e-I ri ri E-1 z m O L N N \ ri x N N N N N N N N N N N N N N N N N N N N N N N N N N C� H H H E-H H Ei ri H r♦ H r-i H r-1 H H EH H H ri E+ ri HE-4 H r-I Ei r-i H r-I EA H H r-I H rA H ri H r-I H ri H r-1 H H H ri H r-I H r-1 H a r M O O O O O lD O O N 1n O O .N M O w lD O lD tD lD O O a Cl O ri H V• r (N Cl OD M O N 0) N Cl r♦ OD N O 0) Ol O V' V' N 1n 1n O O O W z O r-1 01 O 01 OD r M l0 O O 01 r In N N O sM C' d N N 01 O p OD 1n M r W 01 O O r 1n O kD r m r V' v O r r O lC W N O }I 0 N M O1 N W OD V' r 0 V' O M r-1 M 0) Ol N O O N 1n 1n OD ri F� cM lD OD OD v O %D OD a r H d' M M M CY) 0�4 ISG Ol N cM M H r-1 H 1-1 O r-i O O O L Ln O OD Ol N Lnr-I 041 N � O O O co Q aaa U > U > U > U > U > U > U > U > U M > H w x H Ea H >4 W A A 0 o O W a) c!I 0 cA z >+ A> c7 0 0 z z H H H H H H H H H H z< a z O z O H M 0 0 O U o G z H z H z H w w 0 z z z z z z z z z o za' H H M c� a a a cn 0 �a � a w 4 Ur-) >> < w w E w w '� w w E w F w 4 E E-I R cD ZZMH 0 x z a as w o OOONNH o er HEI In z O H O g W W W W W W w W W 0 w W H H W 0 0 0 x x x O 1-7 O W H H U U U U U U U U U H H x x H D z z z O o E+ a H 2L d4 U H w w z a w a w w x x rC cn m z o H H H rC rC FC z z D+ U U H a a o 0 0 0 0 0 0 0 o w U H 4 RC W x w M W H H H a O w w w 0 H w w w w W w w w w 0 z cn 3 s E a 0 o z z z H H O m 0 x x 8 z z z z z z z z z A W\\ to a o 0 0 H H H U U A A U U z U z W W W W W W W W W z 0 fn W FC x x x m 0 0 w W z co z H 0 W > 3 3 3 3� 3 3 3 W 3> a W w W H a a a h ww> h W E W w> z z a o r3� x w H H m w w w w a4 a4 x Q W z z z 0 w a n: M M M fM M M M M M M M M M M H A D; O O O O O O O O O O O O O O N r Q (Lj V� V V' V V• C O O O O O O O O O O O O O O V �' 04cr) 04 N N N N N N N N N N N N N N N N N N ►> A z H O M ri M ri M r-I -4 M r 4 M -4 r-1 M ri rn ri H H H H H H H H H H H H H H r-i I ri I H H z x x x x x x x x x U U U U U U U U U U U U U U M M A O cn O cn to to cq c/? O O O O O O O O O O O O O O O O H A4 a 4 w w a I 0 O rL E-I p; m O O N m O ao 1n ri 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O r r W In r r w to w w w r o 0 0 0 0 0 0 0 d 0 0 0 0 0 o a pq 0 1n 1n 1n 0 1n 1n 1n 1n O O o 0 0 0 0 0 0 0 0 0 0 0 O Ln 1n O Ol Ol Ol Ol 01 Ol Ol M M M M M M M M M M M M M M ri In 1n z O O O O O O O O O O O O O O O O O O O O O O O O O Cl %D tD W to %D lD tD tD %D %D lD %D W to %D W %D w w lD w tD %D r lD lD H H'jr r-I r-I ri r i H r 1 r i ri N N ►n lD M M M lD M M to lD to lD D O O O O O O O O O O O O O O O O O O O O O O O Cl 1n 1n Q M m M M 1M M (r') M M O1 01 0) Ol 01 0) 0) O1 01 Ol 0) 0) ON O1 ri M M U U ri r-i ri ri r♦ ri r-I r4 ri In u1 lD lD 1n 1n to tD 1n In lD tD tD lD 1-1 r� 0 0 0 0 0 0 0 0 0 0 0 0 v v sr V' V' V' v v cP o -V o 0 0 ri r♦ ri r-1 r-I ri H 7-1 ri V V' V N N N N N N N N N V' N ri ri ri U U �H" �H" H H" P-I H" H H Hr 04 04 W W a4 W W LL LL LL GL Da U U > > a a a a a a a a a x x x o 0 o a o x a a a w w w w w w w w w o 0 0 0 0 0 0 0 0 0 0 0 00 w w x x x ac x x x x x a a a a a a a z a a a a a oc W M VI w v� to f/? f4 U) W fA C9 C7 C7 C7 C7 C7 C� C7 C7 C7 C7 (� C9 C9 >i >i ?1 >i >a >+ x x x x x x x x x x x x aG (9 z C7 z 1f) H H H H H H H H H W W W W W W W W W W W W W W H H w Q z 0 z a z o z a z a z O z p z 0 z 0 U < U Q U RC U Q U FC U ft U a U s U FC U U < U a U rC U a>+ x W a w 0 0 0 O o 0 0 0 0 > > > > > > > > > > > > > > w w i U U U U U U U U U w w w w w w w w w w w w w w z z w w w w a.1 w w w w w w w w as H H W H cq to cn N cn to W c4 W Cn O cn O H m A A H A H A H A H A H A H A H A H 3 3 3 3 3 3 3 3 3 3 3 3 3 3 a z f4 z W H ry+ 0 H m 0 w m to m w m w O O O O O O O O O O O O O O IY4 }I a z oG m a z z z z z z z z z z z z z z z z z a w w w w w w w w w w w w w w w w w w w w w w w w o 0 er r 0 > > > > > > > > > 0 m 0 W 0 0 w m m O W O 0 O w O m O 0 O W 0 A z H a H a H a H a H a H a H a H a H a O a O a O a O x O a O a O rz O x a x x a x a h z 0 > o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O O O O O O O O O O 'A -4 -4 ra r♦ r-1 ri r-I H 1-4 1-1 r-I ri H LO O O r-1 1-4 ri r-4 ri ri r-I ri ri O O O d O O O O O O O O O w O w O H r1 r-I U H > > > > > > > > > to m W w 0 O m m O m O O O O O m O to O O O a Q U H 4 U H 0c H x H 0c H oa H 0c H x H x H a H a O oc O 04 O a O a x O ac oc rx 04z Pc Dc x x 17 ?9 w C Ln Ln un -4 H u) H Ln H Lr) H Ln H 0 0 H 0 '-1 w H w H %o H w ri w H %o r-1 C r H %D ko H r %o '-I 00 W r-1 Ol w r-I O r H m O E4 z r-i H r-1 .- '-1 N \ H H M H a x U Q CC1 C N H E-1 C N H E-4 �r N H E-I a N H E-+ C N H H C N H P a N H E-I v� N H P C N H E-I C N H H C N H E 4 C N H H a N H E 4 IV N H E-4 C N H E4 a N H E 4 C N H E+ C N H F4 �r N H E+ C N H Ei C N H E 4 V' N H E 4 qw N H E� N H H r M H H E+ z W E-+ z �J 0 O O r o o O 0 O 0 O 0 CD 0 O C CD 0 o 0 O 0 Lf 0 CD 0 0 O 0 C u) O 0 O H O 0 O Ln M o 0 O C H O 0 O 0 r O 0 O w u) o 0 O u7 O O 0 O H O 0 O to M O 0 O r o 0 O to M O O O O M u) N O; N H O u) O r N O ul O1 L M C N 00 H r u7 00 r C H H O H H r H H H N 0 O 0 O U-) N o O N O M C 0 H O O M O\ N H O M M Oo .Y. . I FC a H E-+ W > z0 U > cn U > U > 0 U > w U > w U > cn U > m U > cn U > cn U > cn U > cn U > cn U > cn U > v� U > cn U > cn U > rn U a > 4 cn HA O w a a 4 oU) Cl) H w a a 04 E O a H co s H a 9 ai O a a H O w z w w W U H ,-, E4 a ff A4 U W x a4 U w x a4 U w x x U W x x U W x a4 U W x x U w x aG U w x aG U w x bG U W x a4 U w x x U W x x U w x x U W x x U W x a4 U W x U w x x p U W a x 8 a H x a E-1 a 0 EH A H a 04 °A z 0 a E+ z 0 a a A E-+ W a s A > \ U)o H z H o U U U U U U U U U U U U U U U U U U z > W w> z Ei z w> w h W z w> Cl)z > a 04 cn w w a a a a a a a at a a a a a a 134 a4 aAE 1-3 ai Hra O > A 1 > H a W Pd M sr N H ON C N H Do C N H C -W N H H C N H to a N H N Do N H H Do N H to r N H Ul r N H 0 r N H r r N H O co N H H u) N H N u) N H O to N H ON r N H w C N H to co 0) M �"1 C -W W w 01 H 00 H A H A H z M O M O M O M O M O M O M o M 0 M 0 M 0 M 0 M 0 M 0 M 0 M 0 M 0 M 0 M 0 C k N a W m 1 0 E+ a 0 w a W r C Ln r C v) r C ul r C u) r C ul r C u) r C v) r C Ln r C v) r C to r C u) r C u7 r C 0 r C d) r C uo r V u) r C Ln r C Lo o O O rn H O o O Ln M u) u) M Uo LO r U') W z to O W Lo O W u) O W u) O %D u) O W to O %o u) O W u) O %o u) O W u'1 0 %o u) o %o u) O W u) O %o to O W u) O %o u) 0 W ul O W u) O W 01 C t.o M O r Co H W m O W ON O ko M to t.c E-4 0 U V' V7 m V' v) M V v) fM V' u) M V' u,) M V' Ln cM V' u) M V' u) M V' Ln M V' u) M V u7 M V' Ln. M V' u) M V' u) (V) a u7 M C Ln M V' Ln M V' u) M N u) M LO u) M V' N r V N r C 01 to '"i Lf) N U a H o H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 H H 0 ri H 0 H 0 .-i o ri O C Co C 0 C 0 r-+ w U H > a w U H > a w U H > a w U H > a w U H > a w U H > a w U H > a w U Fi > a w U H > a w U H > a w U H > a w U H > a w U H > a w U H > 0c w U H > a w U H > a w U H > a w U H > a U H U H w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w w W w U U 0 o o U') a Ch z H a w C7 z H a w th z H a w C7 z H a w c9 z H a w ch z H a w C7 z H a w ch z H a w C7 z H oc w C7 z H a w c7 z H a w C9 z H a w c7 z H a w C9 z H a w C7 z H a w c9 z H a w C9 z H a w t9 z H a w A H a w a 4 U U) W a 6 U U) o U z O a 1 W E� W z H C7 w z H C7 w z H C7 w z H (7 w z H C7 w z H C7 w z H C7 w z H C9 w z H C9 w z H C7 w z H C7 w z H C7 w z H C7 w z H C7 w z H C7 w z H C7 w z H U w z H C7 E• U) H w H U) H [*a a a+ a z a z z 0 z z 0 z z 0 z z 0 z w z 0 z w z o z w z O z w z o z w z 0 z w z 0 z w z 0 z w z y7 0. z w z o z w z 0 z w z o z w z o�� z w z 0 z w z o °w U w W a s W w W ta E' a v� Ei z A w 0 Qa z W > 0 O Cl v] o O vl 0 O v] 0 O v] 0 O cn 0 O to 0 O rn 0 O to 0 O cn 0 O 0 O m 0 (D to 0 O ry cn 0 O 0 o cn 0 O O 0 o to 0 O U cn 0 cr) W cn 0 N O H 0 Ln r o H M u) r O h o N O cn 0 H O UH 4 U H cn H cn H cn H cn H W H cn H W H cn H co H a) H W H W H cn H cn H Cl) H (n H cn H cn H U (n W cn H cA H cA H to cn 18 40- .--I N CY) to ON t0 r• CD O r-t N m C to to r O m O r-I rn N ON M rn C M Lo M r- r• rr r r, r r r• OD OD O OD OD OD OD OD OD OD ON p.-+ ri ri ri r-4 r A 11 H z m O N \ C ri x U -W -Wqw C C sr w IT C �r V� V� V� V �r V� VN V V4 C V r4 r♦ HFC N N N N N N N N N N N N N N N N N N N N N N N N H ri ri ri ri ri H ri H r-i H H H H ri r-1 ri ri r♦ H ri H r1 H r-1 H ri H r-1 H a Ln H H H E-+ H H E-F H E+ H H E+ H H H H E+ H r• M O) N M M O O O O ri r M ap O O M O1 N CA N Wm N N to ri F r- O O N to O O LO r C N to W r• m r- ON C r- C� M O) OD tO ri z F4 H z r N OD r• U; tO to to N 10 N C to C C to w O) r-1 ON ri CD H N C M M C ri NW O) M m r ri N N H to O O N ri r-i M r-I H Vq O H M ri a O) M O O N N to to M a FC FC Sri L i ui C i rn O) ri N ri N N N H O O Cl) M `o Cl) a U 94 U a Ch H a P4 a a a w a a a -+ o ff H z H H z W W E cn z z 0 o- a a a a a o O D U O U o z 0 o HHUP O w F W H > H H E+ WE-4 H H a a a owwww4 ow4 a En (n En a °G a °° a Q a U a cn cn W cn m cn W W cn cn a H O H W W W o a 0 W O F F H O W W W W W W W W W W W O w w w w w > a H H H A W A 0 A > A H H H H H H H H H F-1 H A a a a a a a a A z z H z U W a GL ra a a a a a a a a a a a a a a a a w a z W W U H U H U H U H U H H !n w a w w w w> W > i W O> W a W s > a 13L, 04 a, Qd 04 w rli 04 PA 04 > x x x x x A O O A H HHO a a A 0 A A D A A D A w w w w w cn cn W W U W w w a cn m cn cn W m cn cn cn cn > > > > > LO OD O O H r- r- O O N r• M O O H A a r1 O H H O) N �r lO r• Ol ri C M Oo. O) O W N 1 1 1 N O `4 OD r N r- ri to 110 N to OD to t0 O) > 1 > m O m t0 O) f'M (Y) (Y) 0 OD to M r- OD to to C t0 OD O N M N r w z ,z 2: H r p C M O O O O O O O O O CD O O N O r- C C m M H A H .7 ri ri ­4 C IT C C C C OD C C V' M m M Cr) m H z ('Y) LO ri O OD r1 ri ri 0 0 0 O O O w O O N O N N N N A OD r-1 r•1 O ri N N N M M M M M M 0 M m to M N H x z a co w cn a 1 0 O w H a o 0 0 o M o 0 0 0 0 0 0 0 0 0 o N o 0 0 0 0 0 0 W o 0 0 o LO 0 0 0 0 0 0 0 0 0 0 0 0 0 0 to 0 0 to 0 0 0 0 o to 0 0 0 0 0 0 0 0 0 0 0 w O o to tc to to W M M M M O) to u) ON ri M ri ra -4 M M r♦ M M m Ol O) O) O) O) z O O O to O O O O O O O O O O O O O O O r-1 H r 1 H H w r- r r ao W W W ko r r r r r r r r• r r r• tO w w tO H z M N r• r m O O Ol r-i N r-1 r-i 9-4 tO to ri M tO W r-1 1-1 ­4 ri 1-1 to O to L r N N M to tt) u) to to to .u) to to Lr) to O O O O O 0 N N M M to M V N M M C C N ri C C to to to to to U U r-1 H r1 r-I r-i r♦ • ri ri ri r-i ri ri r-1 r1 r-1 ri r-1 r-1 r-i r-i r-i r-1 .--I r1 rs; 0 0 p O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ri H ri r-1 C C C C r-1 H H ri H ri ri ri H ri r♦ to 0 In to to U U U w W w W w w W W w w W W z z z C7 C7 0 0 0 a 0 0 0 a 0 C7 H H H F E+ H E+ H H H F H H H za' �a �a > > > > > O U U U > > > > > > > > > > > H H H H H [i H H H A A A Q A A A A A A A H H H H H M cn z z z FC FC RC rC FC FC FC RC O O O O O O O O O O o W UUU W v] W to u) cn cn cn cn a W W W V] m cn rn rn W m cn o to H H H H E4 w H H H H W W W W W W W W W W W D O D a D ra a co O O O z z z z z z z z z z z FC FC FC FC FC a' a' O W W W H H H H H H H H H H H to I z z z W C7 C9 C9 cn O 0 cn cn to rn W W W cn rn cn rn H H H CJ J O D a D a a 0 0 a D W E..t r=+ r..t rsa LC1 OU AU Oq m m m m mm m z z z z z 01z+ 0 to %a H W w z sC zA r� zA r� U)(n U) U) U) U)Cl)cn Cl) U)u) O O o O O x t� a to W W W W W W W W W W W H H H rn H rn H to >, 01 H H F A x x x a a A a a a a a a a a cn cn r>; p, a a z O H H o H O F a 114 FC n, FC w Q w FC as FC w FC w FC w P w w w FC O 0 O O O H E-t F H F F H F &; H HH H cn z M cn cn m cn cn cn cn r ) cn cn cn cn rn cn U) W Cl) cn U U U U U H z r+a 0 W > 0 Cl 0 M OD 0 Cl o rn rn rn rn rn rn m rn rn rn m o Cl 0 0 0 O ri r-1 ri 0 0 0 0 0 C C V C C C C C C C C c Vm 0 C o C O C 0 O o CD p o o ri H 1-4 0 00 0 0 0 0 00 0 00 0 0 0 0 0 E O O a O A O a O D O 4 F 4 H 4 E-i 4 H 4 H 4 H 4 H 4 H 4 E-t FC F 4 E-+ H H H H H FC U cn cn cn v) U) cn cn cn cn cn v) cn cn cn cn cn cn cn o cn cn rn m 19 41 lO 0) r Ol co Ol 0) 0) O 00 H N O M O v O 0 O W O r O M O O1 O O H H H N H M H Q H H H H N N N N N N N N N N N N N N H z M O Ln H x U a� sr a• er �r a d` d' �r a� C sr V' C' C N tT N •a N V' N H W (� H a N H N H N H N H N H cw H N H N H N H N H N H N H N H N H H H H H a [q H H E-4 EA H H H H H H H H H H H H H H r M H OD O N Ln 0 C' N •w Ln 01 Ol Lo O O 0 O 0 O 0 O H H O d' H M N Ln H m W N r r N O Ln H z W H z O H cl' 1p V' ao H 01 M O1 O1 01 01 O Ln O CO Ln lO F. D Ln W 0 Ol l0 O t0 OD V' O W W OD O OD M f'M H M H r O 1* Ln M H M sT C M l0 N r W 0 H M 'V' N Ln a Ln N O O H M r H M r O Ln N -W H t0 i 01 N r H kO Ol 00 H O O Ln 00 tD M r 01 M N N O O O H H r- CV W U) H U U U) s a A w a a a a a U) a a a a a� U z H 4 H 4 H 4 4 H A 4 W H 0 CO 0 FC V) H �. H H w 4 U H 4 H < a H 4 H w cn a s 0 w aL w 0 x o 0 z o U o 0 00 w 0 00 w H w `� w a w H x H W U) H ►r�-+ H r� H H o4 H z H H H w w z 04 z H a a o 04 En U) a E o4 H a a z 04 x o ff w w w 0 H o En U) 0 g w 0 0 0 0 H 0 0 0 > a a a A Q H A 4 4 A x z o p U a Um w U U z U U U U z z z a w z W z a: z v) rn 0 z z W z X: H U) H H H W W W W H W W W z z z z z w E+ W as w H H H W x x x > H > U) U) > aL > E•+ > 0 0 t7 0 U > U) > CI), > E•+ U) U) A W W W w D D 0 z H H H H. H w z w w > > > p; pp pq U H O U] fn U) U) a, H H W 04 44 O o o r O0 W C4 N O DHD N M N > I > a1 N O r I W r M Ln kO Ln Ln H 0) O O O z z 2: M N O Cw H H O O V' N N N CN OD 00 1 W 1 kO 1 lO H Q H H D z M M M M N M H Ln 00 m OD 0) H d' M OD Ln OD Ln OD Ln OD Ln O Ln Ln lO O lO p N N N M H H OD 01 Ol O1 O1 D1 H H O O 0 H x a at w ca a 1 0 0 w H p4 0 0 0 o o M M M M M a o W Ln Ln Ln O H H O O M M M M M M O M OD M O N N l0 O 00 00 OD 00 O t0 O t0 Ln %O m M M Cl) M M (71 0) M M M M M Ch M O1 0) Olt z H H H O O O O O O O O O O O O O O O lO tD lO %O N N lO lC r r r r r W w w W �D H z H H H M O O m N M M M M M H W N N H D O O O Ln O o Ln O Ln Ln Ln Ln Ln Ln Ln O Ln Ln 0 Ln Ln Ln qcr O O H Ln qP cr V' V' d' N sr N M N U U H H H H H H H N H H H H H H H H H H O O O O O O O O O O O O O O O O O o Ln Ln Ln H H H H Ln H H H H H H H H H H Q z z U O H >> H- U U U U U U U H HHH E-L z z z z z z z U) H H E-4 a' W W H H H H H W H H 4 p 2: z 114 4 F:g W w 0 0 w w papqq A p A A A P4 a U U U W D D D z H H W FC 9 4 4F:9 4 W D z z z Cl) U) H U U U E-4 U) H H H 1 N w W U U W aU aU aU Q U zzz W W w W a H W 0 W 0 W o H H z FC FC W P° D m H H W a 0 z a 0 z a 0 z pq Iz-1 H H H W z W z D 3 z z z z z 9 D rj) U) H H U - - - - - u) a >+ >+ >4 01 U) a s w W � cn ��� a a a t) r:)j W H 0 0 0 0 0 a a CD4 a U U U U) U) U) H H H H H H H H H H H H H z G4 o W > o 0 0 o Ln Ln o Ln o 0 0 0 o Ln o H 0 H 0 H 0 /� H ` Q /� D W cw C' O r r O r H H H H H H O o 0 O >L O o o H 0 0 H o 0 w 0 a 0 a, 0 a, 0 as 0 rC 0 H a D O U E+ 0 E., 0 E-4 0 E-4 A D z D z D E W E H O O O O O oG a a x x U ry H U U] co U) U) U) U) E-H H H H H H H H E-H H H H 20 z LO r OD rn o .� N M v Ln w Ir OD m o M r-4 M r ri r•4 , r4 r 1 r 1 N N N N N N N N N N N N O N N N N N N N N N N N N N N N N H z m O N ko \ ri x U a lw ,-I E-4 N N N N N N N F N H N N H N N r-I N . A N ri N r-I N H N ri N r-i Qa pq H E r-I E H E H E r-1 E ri EN . E-4 H r•I E H r-I H H H H H H E H t` M O O O ri O O O qP OD co O V' H O N O 01 ui r-4 H O O O 00 O O H v r-4 v C rl 0) O H M M ►n H z W E z O Lo OD Ir O O o rn 4 Ln io Ln c OD M N w t0 cT N N ON N M ON ri C' r1 M C' 00 Q0 Ln N r♦ H r♦ H a O o O ri o O 0 o O OD o O r d' of o Ln a U N �o a 4 o N M H M V] N N N (n " m U H C ri N r- cM M r-4 W > rX4 A Q H U a a U o w z EQ.4 EQ-4 H a 04 EQ4 EQ-I a) Fq z H o 4Yi a H O a s W H EO-I rn H E-4 a a H E-4X EO+ z E 1 H H H H U E., rn CD a O a U w a O H D > U > U > U > C4 U H U) U) f/) U) . Q' A OI A a H a Qa H PG a CD 08 4 fn fn V) f!i OA a H A W W > Qi L7 V) A > A H H A > fa U A. H H H A a z w W z U z w z w z x as z w z z (, W w W w z H a a a a a W z z H U) W H W w E E w w w H z z z z w z a a> 0 0 w > a> H> D D> a> > x o 0 0 0> w a a a x x A w W a 1-44 z x x x x .> D D D D a s cn U) > a s W a H a a a a W w w M 0 M r r1 M H O A z W 4.0 I` O qr c> M Cl O N Ln r4 I- O O r-I I` N O \O Ln I- 0) 0) > > tI1 Olt 0)N N v r4 r-4 r- N 00OD N r-4 ri O M M O r-4 r-4 M m Ol r I` OD OD 00 V' v' r-4H N A H D U) 0 0 H O Ln r-I v' V' O O O O O O O O O O C t0 H z E-E E EH U N tO W 0 0 0 0 A U 3 3 O M r M r ul Lo 0 a 04 w m a o o w H a O C O O O N O O O O O O O 01 O O O W O V' O O O C' M 0 0 0 0 O O O d' O W to O Ln O O O N w O O O O O O O W O t0 lO (� Lo ri ri M Ln r1 Lo Ln In 4n .-4 M r-4 01 M 4n Lo z O O N N O O M m M M M to O O ri O M t.o M %D w W %o t.o ko %n ko ilo W W ko I` I` W Ir W H ri M r-I (- d' V' C .-4 r♦ M M M M -V ri lO M M O Lr) Lo Ln O N Ln In Lo Lo Ln Lo Lo O O Ln 4n N 0 0► M N M H M V' N N H r-I N N r-4 Lo w H r-I U (� r♦ .--I ri H ri r-4 r-4 r-4 r-4 r-I 1-4 r1 .--4 ri r-1 .-4 Q O O O O O O O O O O O O O O O O O O M . i ri r-4 ri ri 1-4 H H H H ri ri H Lo ri H ri U O U U) Q U a H H H H o H Ems+ EE-4 E-4 H H H H H Q Cl)a H H W D D D E E E H H o 0 U) cn x x E-4 o°G 0 0 o w w W Q EE-o H A a A s p4 U U U U U U 3 3 2 x a W H E H H E cn U) a s A 0 z 0 z 0 z 0 z 0 z 0 a a s w w >4 Ol GO w w w w U N N N N N a W s W o a a A a 1-a s a a Q H a H x H x H a H a a a a ,a a a s Qa , A U) Q Q Q U w w W w W Q a Q a Q H H U) z D > > > > > > > > > > 3 3 3 3 3 S 3 z o > o Lo 0 0 0 0 0 0 0 0 0 O o 0 0 0 0 0 D to O N N O O O O O O O .-4 ri 1-4 r-I r-I O 4 O 0 O O 0 0 NH N N N N N CD a O a O a O a O a r a ra s H m a a s a Q a rx w a oc Q Q Q Q H H U H cn Q Q Q Q U w w w w w Q 3 3 3 3 Q U D > >> > > > > > > > 3 3 3 21 43 N M V' Ln M M M l'M 0. N N N N Ei 2 M O N [� a ao E-4 Ea Ei E-4 M %D o O .-i Ea rn o 0 H WW" z a� o; LO ui QN lD N a Ff O rI O 01 Ln O (� C 1 O OD N kD N N OD w �' �' o o w o o w H H E+ E• x x E-4 W W H w a C4 Vl a p4 o ff w W g x x H U U H a > w o > > A x x cn a Cl) a4 a W [X4 o r H a 0 w OD O L H A H rD r H z M co M CM q tD I O O H ,Y. a x w ora a o O w E+ x o N r- r- W ko o aw aw W Oo u,) Ln z M O O O 1p f� tD t0 E+ z J u1 Ln Ln N U a o 0 0 0 w w U U H H a a W W U) U) CM o z C9 C7 0 o z z tea' w w U) a a� 3 H H H fA L) W W a w a a a a D $ o 0 cn z 3 E-4 44 z O 'wj O N 0 0 A O r-I O O a a L)i H a O O Q U 3 uO Li lD Ol N OD a E+ O H E- z a a `F • 22 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 4:38PM 11/21/03 CITY OF LA QUINTA BANK ID: DEF PAGE 1 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT ***NO CHECKS WERE USED FOR PRINT ALIGNMENT.*** 56318 11/21/03 BUR051 BUREAU RECLAMATION YUMA 200.00 56319 11/21/03 GAL075 JOSE GALARZA 150.00 56320 11/21/03 LOP200 JUAN PABLO LOPEZ 60.00 56321 11/21/03 MEN040 RUBEN M MENDOZA 240.00 56322 11/21/03 NUN100 ANICETO NUNEZ 270.00 56323 11/21/03 SAL155 SANTOS SALAS 150.00 CHECK TOTAL 1,070.00 45 23 0 cr r- M w u) 0 E-4 z M 0 H N H H E Q Ew-H Cw-4 E-i EW-� a a �o 0 0 0 0 0 0 0 0 E, o 0 0 o O o 0 0 0 0 0 W z o 0 0 A o U') [- Ln r i+ O N -i N N .-+ O a 0 0 0 0 0 0 0 o O O O o a o 0 0 0 0 o a U o Ln r` L H N H N N H a w Q H z a H 1� z ?� E l U H U E- U E-H U E-4 U E-4 w O r$ O H O H O H O H O H O W H 3 Ei w E4 w E-H w P w E 1 w E-F 0 o o o H w w a 0 a a a a a O H °A °A °A ° ° W a a a n a A z L) E+ z W z W z w z W z W z H r/] x W U W U W U w U w U a C� H O O O O O m a Cl) cn U) cn cn A H H A a a z z z Q H z F A H aC, a m w m a O O w E-i a o rn rn rn ON rn W o co co co co co pq o un un to Ln LO rn rn rn ON rn z Co 0 0 0 0 0 E-4 z M m M M a N Lrn Ln u� O N N N N N U O O O O O O a r-4 r-4 .-r H a M z o O O H N E N W 0+ a a N z a z aW E-4 z a z W w o oa a z a w w wa H E� m z oa h a E4 w W O 9 r- o o � n o W a � H a a U m ca a E z cn 46 24 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 10:04AM 11/21/03 CITY OF LA QUINTA BANK ID: DEF PAGE 1 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT ***NO CHECKS WERE USED FOR PRINT ALIGNMENT.*** 56314 11/21/03 HTE100 HTE INC 5685.11 56315 11/21/03 MAR350 RAOUL MARTINEZ 400.00 56316 11/21/03 TR0025 TROPICANA HOTEL 163.35 56317 11/21/03 UNI051 UNIVERSITY OF WISCONSON 595.00 CHECK TOTAL 6,843.46 47 25 N M tQ� E4 O Z M 0 IU' IU' t7 N U U) H am z H EW-E EW+ N o; a z z z z O U N v1 r4 1sf O M C. O C. ,z 'z LA lJ O M V U) JJ O d' .1 £ N � a La d o a o d o .-1 0 r•1 O s~ O c o ai o > o o to E-4 E-4 zo w V •-1 •-+ H H E-4 W E+ H H M 1 M 1 cM 1 m 1 E-4\ U) Q N \ o \ O \ O W I OD H r-1 O r-1 O H O U N co N O N O N O H z ■w \ \ \ \ p H O M r l M H r- r- > r-1 M rl M r-1 M r-I W tC H Q U O O � ul) Hsi W a Ln a O z N WA 1% w O O O o W ou t9 Ln 1 0 0 E-0 z d a a \ ai z z° 0 H a a o W M M U' M M E+ E• � H x a A N W N H N O N x a a i w � a� �4 a r� z-+o UZ I z > z0 O E H Q Z EH-4 a o g O U �✓ H H H Q U)a8 ace °a a a o ca w E4 E-4 w H 0 O 1 • Q H 94 E-4 H a N>4 a ►1 Ow A WON W 'aM a o 0 a w z H a C4 . z H W co E• 3 %o E• w �pj o n o U')N ga a a U > z H %D O O aw O M O qr CD EA W 0 U Q D EF W E U w � O 0 E-4 n a z H z �+ E+ v) a w E 413 26 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 10:40AM 11/20/03 CITY OF LA QUINTA BANK ID: DEF PAGE 1 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT ***NO CHECKS WERE USED FOR PRINT ALIGNMENT.*** 56285 11/20/03 BRA150 JOHN BRANSTETTER 770.00 56286 11/20/03 BRO100 SHELDON BRODSKY 75.00 56287 11/20/03 CAL167 CALPERS LONG-TERM CARE 85.39 56288 11/20/03 COA080 COACHELLA VALLEY WATER 6578.28 56289 11/20/03 DAN200 DANONE WATERS OF NORTH 477.85 56290 11/20/03 DAV005 DAVEYS LOCKER SPORTFISHNG 330.00 56291 11/20/03 DEN100 CRISTINA DENIEL 75.00 56292 11/20/03 EMP050 EMPLOYMENT DEVELOPMENT 1857.00 56293 11/20/03 FEL100 FELIX CARPET INSTALLATION 145.00 56294 11/20/03 GAS010 GASCARD INC 3032.01 56295 11/20/03 HEM200 NICOLAS P HEMES 75.00 56296 11/20/03 IMPO10 IMPERIAL IRRIGATION DIST 179.79 56297 11/20/03 JON130 MARCIA JONASSON 516.00 5629& 11/20/03 LAQ050 LA QUINTA CITY EMPLOYEES 582.79 56299* 11/20/03 LEW010 TOM LEWIS 75.00 56300 11/20/03 LOU100 ELSE LOUDON 75.00 56301 11/20/03 MOU100 DONALD J MOULIN 75.00 56302 11/20/03 OLA100 MILTON OLANDER 75.00 56303 11/20/03 POW300 POWER PERSONNEL INC 1067.04 56304 11/20/03 RIV040 RIVERSIDE CNTY DEPT CHILD 426.50 56305 11/20/03 SOU002 SOUL"OF CHINA 296.79 56306 11/20/03 STA044 DARREN STANLEY 62.50 56307 11/20/03 TYL050 ROBERT T TYLER 75.00 56308 11/20/03 UNIO05 UNITED WAY OF THE DESERT 182.00 56309 11/20/03 USD050 US DEFT OF EDUCATION 170.83 56310 11/20/03 VER200 VERIZON 1214.25 56311 11/20/03 VER210 VERIZON INTERNET SOLUTION 69.00 56312 11/20/03 WEI050 MARK WEISS 70.00 56313 11/20/03 YOU050 LINDA YOUNG 75.00 CHECK TOTAL 18,788.02 27 43 OD OD (n H lO 1` w m 01 O -4 N O M 1.0 V' Ln 1-4 N M H 0 z 0 0 W H 0 ON 0) Ch 0 E W 0 E W 0 E W 0 E W C7 E W 0 E w 0 E w C7 E W C7 E w C7 E W C7 W Q) E W H C7 E w H 0 x W H a H H E-1 H H H H H H H H H H H r N O H O O O O 01 M O !` a N O N O rn u) o1 O O Ln c' U-) u7 0 01 O O O O O O O CD N rn H z w H z • O � . Ln !` to OD . 1` H 0) to . H 1` 0) N OD H O C O O d' r- . M W O M LO !` LO OD u) V H r N 01 Q a O M H H N O M H H M H '-4 0 O o O rn M OD N Ln OD O O Co O Cl O o O O [� u) z cn a Ln �, O M O H 9 w OD 0 u) W H a a �o ao z H a a U H x a > m H W 3 � z O W E-4 w O E-+ E 4 pG 0 0 4 E-H 1 O H O w H 4 w E+ FC w E+ 4 w H FC w H EH FC O A U g H H E-H O A �a 4 E+ O �a H H z O a� W E-H H 0 W U) W H H w a H z a a H a s EH 4 a > > > E0 > a 3 r� S 0 3 U 3 Q) 3 H 0 a H 0 a H E+ w a W H >4 a z H O > z H C4 U H 0$ r.4 A E-E z D z a) O •.� A A z v) a v) a to a Cl) 0 A a z z HHIIIIHO A4 z x z a4 z b4 z 0 a4 z H O to A a z F O H A to z O O 00 a z O a A 0 z D LL H to W A z w D> 0 H W 4> � w a> w H a w H w H Q w w H> z H a z H a z H a z H a z w H> a D W U> x W W >> z E w W> z "W z> w 0 w D w U a+ 3 3 3 A A A A A W ►-+ D W w O > A 1 > W M O O N V) D 0 to D 0 V) D 0 N 1 O t- O I H LO M 1 H OD W I N H M 1 l0 m N CM( O O N M u) M O C H A H E Z >o H > H > H (R,�� O -W O H M H 0) H Ol H OD N O z 1 M 0) H M M V' H A z ,7 H a w as 1 a O O H w a W (>a M u) 1n O O O O 0* O NMWN M 4.0 lO W w %D M w O O O OD aD OD aD OD b' OD O O O O O O O O O O O O lO d �0 �j z 01 O tO M o u) OD M N H (r) tO H M tO H M %0 H tM lO H M W M O 1` M O t` M O 1` M O r- M O t` ON O u) 1` t0 u1 H N w 0) H lO H Uw M to N O O Ln d' u) d' C in lw C u) V' H o CM M u7 H M u) H M u7 H M ur) C' M Ln N H u) H C O H N O N H O u) U ry H O d' H O H H O H H O H H O H H O H H O H H O H H O H H O H H 0 H H 0 H H O H H O H H O H H o H H O V7 x Oz w a w H a w H a w H a w H w H a w H a w H a w H a w H a to H w H z W 2 a M U Q 0 z 0 z 0 z 0 z 0 z H a0 O H o In a w H �+ a4 s w H wwww a �+ a �+ a s+ a w 00000 w w w w a to a w A w > m z H a 4 i w H A 0 z >>>> a a a to a w to a w to a w to a w to a w a w x H z w w A H W U 94 A z U) a O a H 3 H H 3 H 3 H 3 U #4 A 4 E-+ w a+ z H w r>: D O► a 0 m z x z 0 A A W to a w a a a w x U 4 a w x U Q a w x U 4 a w x U w z 0 z w z 0 z w z 0 zz w z 0 w z 0 z to W > z H H Cl) ►-+ 2: N 0 a a U x H a A a r>; U to a to z vxi v c0i v o O A aA Q Q 0 u w w 0 z D 0 > o an O O r lO o aD 0 O 0 w 0 w O 0 o 0 0 0 0 0 0 0 ur) O O O O u) O O O H O H O O UH r>: > U H at H a a1 H FC U O O U O O U O O U O O U Nzz Q A N Q A Nz FC A N z A N A 0- F:4 A H W Q X w W k+ 4 (�- 0 t l o 28 N 0) M N M LA O cr M L C cp N N M N Vw IV VV M 0. H z M 0 0 H ON rn ��+ w U) ON a% w w w w w w p�q EW+ H H H H H H H E+ H H F' r N 0� O al O 01 O O O O O O O O d' O O LO m r .-� H z W EH z p V p N r rn O r N U; u� ir1 r 0) m£ C) h c h r h r l0 O N d N . � 4 r-1 to a Q H o ON O rn o o O 0 O 0 0 O Un 0 o r o r o 0 N U) a► V? l0 O (14 LA U) t!) Ln h A lfl o z r z� A Ln O r z h O r O r o > v °° ao In 'i a z o a � w o o o I cxn H U V) O (n �% H z �a �a �.4 a > a a V) a > a Q 4 > a Q 4 a a a a 4 x w z W V) H cn HH C7 E 1 a H A Q HE+ � $4 E4 0 KC E-i U U E 4 F1O 0 H z H W " z H EE, �H1O1O E, E• H H E-H Ea H E+ U) H H a a s a U rz + a 43 ac W a a s W a W a H a + x zua zzzH g Az AzU)z zz V)z �g z oz 0 H U) a W H W U W W W w W H W w W W W H W W a> z A �> �> a> o\c> a> z> a> z> z> o> o w k, W a a H U H H U a U U W M M M M M H A a o0 o O O O a Co p O o > 1 > N O N N N N lD H A H m > > > > z O z z z z p H z z r H x a 00 w as a 1 0 O w H x �o o N o 0 0 0 0 O o O M o O 0 O W O M O O O O O O O O Co Co Ln O O j 01 01 r H M C% O m O 0) O cm O ►n O N M z rI tp O Ln N l0 N N N N Ln N LO LO Ln N H z r♦ ri V' O O ri V) to w LO O O O •J Q p an N N LO -W O O O O LO 1-4 LO N r-4 e-1 0 U r-4 O r-1 O r-4 O .--4 O r-4 O r-4 Cl r-I O r-1 O .-1 O 1P) ri r•4 ri ri ri ri H ri ri r-1 H Q a V) W H x A O U M HO E H W A W W C70 E-• WwE-+ E a z E 1 U x H z U E V) U x z. H °' a z a ° H H a h o w A w a u 0 w a a H w w 4 cc a E w z a 3 > a 0 A m F4 U H rx 0 a O H O H 0 V) z 0 z H z H W A ;$ a a V) H z W 0 W > O Co O O O O O O O O O N Cj r-1 O ri M LO O ri O O O e 1 O .-1 O M V' O O O O U %+ E., O U) N E O a ri z Ol 3 ri D RC 3 > U H Q w E o w a o a 0 z a o o a H a o U) U o x H h 29 1� r-I LO N t0 r In w r OD m O r-i N m %D r z N N N N N M M M M m M (Y) d' O H z m O O N M U � U rn rn C7 C7 C7 C7 C7 (� C7 C7 C7 0 C7 C9 C7 r\.1 H E-4 Ol .�' Cif C11 �. .� F. �+ }�. �. �..• .�' �. �' �." �+ W o, W rn rn W W W W W W W W W W W E-I W E+ H a pq H H H H E+ H E-F H H H H H H H r N O O O M �-1 r ul N M N In .-� C11 O O O O O O E-H Ln O O OD o O h CoN U) Ln r lM O O O O H N O I Ol OoN O C h Ol M o Oo l0 h OD h un N N TA O N C) Cr) OD lD M (") r OD h O H '-i r-1 In M ` a Fa' co ON O O O M LO O O O O O h LO O O OD N O �D r c7 r 0:4 rn E CD Q r E4 O E H I z 3 :D O H � a z a E a E4 H a z a W C: W 0 U w a cn Vi a a U a >4 0E E 0E-4x z EU E E-H E a zE-4 UE x z z H E-4 O O O O 1 0 O 1 0 1 0 r� W 0 z z O U O H U RC O H H H H H [-I W U H H H si H H t% H $4 E+ • . $4 H U >> U rC 0 >> 0 0 z 0 H 0 H H a H Ix w w W w a a s H w 04 On 41 �S p4 O 0 0G 8 4J Hon Mx °�'S 04 �'�'w`�`na4azo zon m�g �00 >a x z x x z a z z U z 0 z ►-+ z ca z o z w w a w w 4 (D U Ix z W W U U W H W H fn W W FC W W W z z H z z 6 z U H a H W H> W H> z z> a> 1 W > a> > a> 0c > o o 0 Ds z a D ca \ Cl)\ \ x x x f1+ x A+ H 0 Pc H x H z H H a s U o 04 1,14 w w W Ou H H al CY) FC O A M p O N Oil O OD 0 M .-i M ri 00 W • w p M w O N h r N 0 �D N W > I > N r O N N r N M m O m V' M Ol Cr) N V' r-1 In N N r - > I H ca H Z -wLnc �D -4 O x '-i r d• c -4�--� r O O O �D r r M M r .i z H O z N H un r r H ,Y, a m w w a 1 O o w H a4 0 0 0 0 0 0 0 0 o rn Un co 0 0 0 0 0 w O O O O O O h 0 OD .-i lD w O O 0 0 O pq O O O o Cl O %D O Ln %D W W 0 Co O O o j ri rn U) r-+ M M m an rn r r-I H rn rn r u' rn z N O N N (+) M O CM O N M M O O M O O N Ln N N W %D %D w w w w w w tD l0 W LO E-4 z O H O O M .--I h .--1 H V• V' V' N N N M e-1 J p O O O 0 O 0 O O 0 N 0 0 O ON LO O 0 V' O O '-i M M M M V' v v Ln N r 1 h N U U rA .--1 .-i H r-1 14 ri 14 r-1 1-4 -1 -4 N N .-i 1-4 r-I O O O O O O O O O O O O O tl7 O If) O H O IKV O H z o LO I w H m z �y a i� a. C4 z a ?y EH (� j °� o H H 00 W o a P4 W ca � o Q z o (4 E-4 z o E-4 Ci w o H a W Q cn a z O N H w > z O N H w > z O N H w > z O N H w > z O N " w > z O N H w > z O N H w > z O N H w > z O N H w > O H H O a 0 H w x 1zi z O N H w > vi w 3 a i vi a w 1-4 >4 3 .�i Q a z O 0 ry U > a O EI cA o LO O >4 H Ln o O H z O o LO O Q tq 0 0 N a. W > 0 0 N 1% W > 0 0 N a W > 0 0 N s W > 0 0 N oc W > 0 0 N a W > 0 0 N a W > 0 0 N x W > 0 o N a W > 0 ­4 N a W > 0 U-) O W 3 0 0 U-) In O C W O 3 >• 30 04 ACCOUNTS PAYABLE - AP5005 CHECK REGISTER 10:08AM 11/13/03 CITY OF LA QUINTA BANK ID: DEF PAGE 1 CHECK CHECK VENDOR PAYMENT NUMBER DATE NO. NAME AMOUNT ***NO CHECKS WERE USED FOR PRINT ALIGNMENT.*** 56279 11/13/03 DRA100 WALTER DRAKE INC 43.34 56280 11/13/03 FET100 DWAYNE FETTIG 325.00 56281 11/13/03 HOD100 TODD HODULIK 500.00 56282 11/13/03 PET005 CASH/PETTY CASH 169.07 56283 11/13/03 SHAO05 SHADE STRUCTURES 3779.03 56284 11/13/03 WEL025 WELLS FARGO BANKCARD 1205.78 CHECK TOTAL 6,022.22 31 1�3 N M V' to W 1+ w M O . I N M V� to lD H �--I c-i Sri '•-1 H �--1 O E+ z M O M ,\-1 � V U (7 C7 C7 C7 C7 C7 C7 C7 C7 C7 F C7 E U' E C7 E C7 C7 �-1 W H E E W E W W W W E W W E W E W W W W W W W C7 W cC pq W E+ H H E-+ H H H H E-+ H H H H H H H O O � O M M 0 0 0 0 M 00 00 LO M V' (" 1 1� w O O O O O C l li r� to 1 w z m LO O N Wo N O O w O 01 N M lD O w w 00 (y) Ol M �+ (N O N C' M N r-1 H N 1- N M H V' O M to M � a � O O M O w M O O O OH tO O sp z N M V) O H N M O H a0 W H w 2 w W W x x x x x x x 0 U > W o o rn (n (n (n W a o a a U U U U U U a a U a s x A Q Q H H H H H H o Sao "o �o >.>4�H�H>4>4>40 Uo a H a FC o E-4 W H U H 04 E-! H H P H H H H H E-4 W U E-4 C7 D: E+ U a z H a H W H W H W H W H w H W H w a H a CO o o a v) a H 0 a H 0q 0 H Oq a a a a a a a Oq CO A z Z H z a a a O cz w z o0 oci W OC) W m z w z H H a O H z z H U O H z W W H W W W E E H E> H 0> w w w a w W W W > z > E-4 > H H H H H q a Cl) W a a a x a x a v) E E w U N M M M M M U W A o4 M o 0 0 0 0 H 0 0 0 0 0 N 1 M N lD N lD N lD N lD lD z z O to Ln N Ln Ln H A H U) w w w w w z U) q a c4 W m a 1 0 O w H o 0 0 0 0 0 o N o 0 0 W o W O O LO O O O O. O O O (r) O O O M O O a) O O l0 O O O Cl O O O LO O O O LO tD M m (M 1-4 1- t- 1- 1- LO M M O O M z O O �O �O O tD M M �D M tD M lD O 1D tD lD I� tD 1D � � tp lD R lD lD H z N N V O N O M LO e 1 O N. O LO N LO O (n � O N O N O H to Cl -W'a O O N 0 N Ln N ri N N V V' V' V• c-1 N 1--4 U U r� O O O 0 0 0 o O O o 0 0 o O O o � -4 � � H � � � � V' T-4 1-1 1-1 1-4 M U U U U U v) . H (�. �i Q �. (fi �i „•' H U U U U U U U 1 H U O O O O O a H a >+ a+ >• H >+ >+ >+ o xa' °a4 m H q o w w w E-4 E-4 w w C/) w w w w w >4 Q1 x \ a a a a a` w v) U) (n m U) a x H q x x x x x x x o a a a a a a a a a a q O (n a W U) U) a U) a U) a o a a a 3 a 3 U)z g q H U U U U U U U U) $ 3 3 z 0 > O o o Un an LO Ln LO u') u) in uo ui LO Ln uo O O O O O O O O O O O O NNNNN O O O O 0 >41 H H .-1 a O H O H O H O H O H O H O H O (D a a a a a W O W W W W W W W W W W W W RC U q w x a a a a a a a v) 3 3 3 S S N N N N O a Q H 0 E-H H z w E a a 1 A H a W CU 1 O H 32 ' 4 df,• OF�4 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: December 2, 2003 BUSINESS SESSION: ITEM TITLE: Approval of the Declaration of Surplus Property CONSENT CALENDAR: cs�+ STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: Approve the Declaration of Surplus Property declaring the items listed in Attachment 1 as surplus and authorize staff to advertise its sale and if unsold to discard of the property by other legal means. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The City has accumulated obsolete and non-functional property items over the last six months. The equipment has little or no market value and in accordance with Section 3.12.320 of the Municipal Code, the City may dispose of the equipment by auction, by sale or otherwise, after receiving bids and proposals. Staff is proposing advertising the surplus equipment in the Desert Sun newspaper and receiving sealed bids. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: t; Jv 1. Approve the Declaration of Surplus Property declaring the items listed in Attachment 1 as surplus and authorize staff to advertise its sale and, if unsold, to discard of the property by other legal means; or 2. Do not approve the Declaration of Surplus Property declaring the items listed in Attachment 1 as surplus and authorize staff to advertise its sale and, if unsold, to discard of the property by other legal means; or 3. Provide staff with alternative direction. Respectfully submitted, John M. Falco er, Finance Director Approved for submission by: t Mark Weiss, Acting City Manager Attachments: 1. Declaration of Surplus Property 2 ATTACHMENT a Z 5 d a J LL 0 C) E Q W N a L cn cn E O C.) s�W q:kgqa�F �• ': N � � N N N N � N fix. E `*a V t CD`,..... ,C C Y C Y C Y C Y C Y C Y C Y C Y Y C Y C Y Y Y L L L C O Y p L m L O L m L O L m L 0 L 0 L 0 L 0 L O L O L O L O O L m L O L O O L m O L m — — — O VC Z y� of �ttLO d' O o0)0ln�o V- 00 qt co .q M LO M M CO N LO M CO V- M 00 ) N M O N M A cOrcocoOco0o)cO �O�V—UMr-0)v-tco00Mo0do0rnt tt 0 Lo m M Rt qt 0 d' m qt ... d' CO M CO M m v- qt r- d' r- 0 o 0 M If' M O N r O 00 Q 0 tt LU O Q LO Q Q �t LA d' N N qtN 0 M It*0 m 0 d' N qt 0 0 m lA 00 � I� O0��� O Z� 0�� O O O O M m LO O 0 Lo d LA r- _ e- L (D +J L (D +J L (D +-+ L d) +J L Q) '+J L (D +J L 4) +-+ L Q) +J L 4) +-+ L O L O L O L O L O L O L O L O L O L O L O L O L O L O m m � � � +d +J +� +J +J +J +J -E � -E +J � � $aaaaaaaaa ti E E E E E E E 'c o c'c 0 0 c'c 0 0 c 0 c"c 0 0 c 0 0 0 c'c'c 0 0 0 E E �UUUUUUUUU y:n�'y5r kY4T. . � � �"_ LA LA LA O 00 0 0 00 0 LA L1) r*-r. 0 r- r- e- r- r- 0Mm0a)00M0 /0\ .-r-o0c LO LO nU)L6 OOO�W�000000�0 i- LA '! Ln LOLOU;LOU; 0. CL O O O X 0 0 0 0 0 N N � N N W W N N N K mok oo $$. ..: (� \V \V •V m m m m •V \V m, cu m m M m w \V co . � +J + +J J +J + +J +-I +J (D +J +J J +J + +-+ +J m Y a� +J +J +J +J aD +0 (D +-+ o Y a� +J co s cv (D cv 0 ca 0 cv 0 co (D cv 0 c0 (D c0 (D c0 0 c0 C7 cv (D ca 0 c0 (D co d � c0 C7 c0 C7 ca C7 cv C7 cv C7 c0 C7 C7 s= a. E- Q W 0 c 3 O G N cm O 3: cm CF) t i 0 -p O 0 L.G. 7( tiYt1: AZ LO O O O -; NO 00 O LL aD 'a •a +r cxo LL 0 0 cxa LL •� U U CL Y/ WV— LD � G V- 4. CL X „.a ><. +r +.J tm L L. x O 0 G X to 'a x x tic X x !71. %I, 5 --r--- 000, 0 o�z OF Q AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: December 2, 2 0 0 3 ITEM TITLE: Approval of a Banking Services Contract with Wells Fargo Bank RECOMMENDATION: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve a Banking Services Contract (" Contract") with Wells Fargo Bank from January 1, 2004 through December 31, 2007. FISCAL IM PLMATIONS: Bank fees will be approximately $1,200 per month based on current service levels. The prices quoted by the bank are based on a per unit charge and are the same for the four year life of the Contract. CHARTER CITY IMPL-ICATIONS: None. BACKGROUND AND OVERVIEW: The Investment policy requires that the City go out for a request for proposal for banking services every four years. In September, staff brought forward to the Investment Advisory Board (IAB) a proposed request for proposal (RFP) package to be sent to interested banks. RFPs were sent to nine banks listed as follows: Union Bank (3) Valley Independent Bank (2) G0 Wells Fargo Bank (2) (3) Bank of America (2) (3) Washington Mutual (2) currently under construction Pacific Western Bank (2) First Bank (2) Palm Desert National Bank (2) PFF Bank and Trust (1) (2) (1) City Registry (2) Branch in La Quinta (3) Listed in California Municipal Treasurers Association Roster The City received responses from: Union Bank Wells Fargo Valley Independent Washington Mutual PPF Bank and Trust Bank of America Staff met with the IAB in November to interview each of the six banks that submitted proposals. Each bank made -a presentation at the November IAB meeting discussing their services and expertise. Due to the size of each proposal, a copy is available in the City Clerk's Office for review and public inspection. At the conclusion of their presentations, staff recommended to the IAB that Wells Fargo, who is the City's current bank, continue to serve in that role. Staff's recommendation was based upon past service, scope of banking products, response to the RFP, the IAB presentation and the local branch/location. After discussion, the IAB voted four Ayes, zero Nays and one absent, to forward to the City Council staff's recommendation to retain Wells Fargo as the City's bank. The Contract between Wells Fargo and the City has been reviewed by the City Attorney (Attachment 1), and a schedule of bank fees has been included as Attachment 2. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 61 2 1 . Approve a Banking Services Contract with Wells Fargo Bank from January 1, 2004 through December 31, 2007; or 2. Do not approve a Banking Services Contract with Wells Fargo Bank from January 1, 2004 through December 31, 2007; or 3. Provide staff with alternative direction. Respectfully submitted, John M. Falcondr, Finance Director Approved for submission by: S Mark Weiss, Acting City Manager Attachments: 1. Wells Fargo Bank Contract 2. Schedule of Fees 3 ATTACHMENT 1 Commercial Account Agreement 63 4 Commercial Account Agreement General In this Commercial Account Agreement ( "Agreement" ), "Company" refers to the owner (accountholder) of a Wells Fargo bank commercial deposit account (the "account"), and "Bank" refers to the Wells Fargo bank at which Company maintains the account. This Agreement contains the terms and conditions governing the account and replaces any prior agreements regarding the account. All fees and other charges for the account and the Services referenced below are detailed in Bank's separate fee and information schedule which has been provided to Company. By using the account or a Service after receipt of this Agreement, Company is deemed to have agreed to all terms and conditions set forth in this Agreement, as may be modified or supplemented by Bank from time to time. This Agreement incorporates by reference the applicable fee and information schedule, collection schedule, funds availability policy, and rate sheets for interest -bearing accounts that have been separately provided to Company concerning the account. Dispute Resolution Program: Arbitration Agreement Company and Bank further agree: Non -Judicial Resolution of Disputes: Maintaining good relationships is very important to Bank. Company must contact Bank immediately if Company has a problem with one of its accounts or a Service Bank provides. Often a telephone call to Company's relationship manager at Bank resolves the matter quickly and amicably. However, if Company and Bank are not able to resolve such differences informally, Company agrees, by opening or maintaining a commercial deposit account with Bank or by accepting a Service from Bank, that any dispute between Company and Bank, regardless of when it arose, will be settled using the following procedures. Company understands and agrees that both Company and Bank are waiving the right to a jury trial or a trial before a judge in a public court. Disputes: A dispute is any unresolved disagreement between Company and Bank that relates in any way to this Agreement, Company's account(s), Services, or to Company's use of any Bank branch, Bank ATM, online Internet banking or any other method Company may use to access Bank. It includes any claim that rises out of or is related to Company's account(s), Service(s) or related agreements. It includes claims based on broken promises or contracts, torts (injuries caused by negligent or intentional conduct), or other wrongful actions. It also includes statutory, common law and equitable claims. A dispute also includes any disagreement about the meaning of this Arbitration Agreement, and whether a disagreement is a "dispute" subject to binding arbitration under this Arbitration Agreement. Binding Arbitration: Binding arbitration is a means of having an independent third parry resolve a dispute without using the court system, judges or juries. Either Company or Bank may require the submission of a dispute to binding arbitration at any reasonable time notwithstanding that a lawsuit or other proceeding has been commenced. If either Company or Bank fails to submit to binding arbitration following a lawful demand, the one who fails to submit bears all costs and expenses incurred by the other compelling arbitration. Neither Company nor Bank shall be entitled to join or consolidate disputes by or against others in any arbitration, or to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a private attorney general capacity. 64 5 Each arbitration, including the selection of the arbitrator(s), shall be administered by the American Arbitration Association (AAA), according to the Commercial Arbitration Rules and the Optional Rules For Emergency Measures Of Protection of the AAA ("AAA Rules"). To the extent that there is any variance between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall control. Arbitrator(s) must be licensed attorney(s) of the state in which the Bank office where Company executed this Agreement is located with expertise in the substantive laws applicable to the subject matter of the dispute. Company and Bank agree that in this relationship each is participating in transactions involving interstate commerce, and that each arbitration is governed by the provisions of the Federal Arbitration Act (Title 9 of the United States Code), and, to the extent any provision of that Act is inapplicable, unenforceable or invalid, the laws of the state that govern the relationship between Company and Bank about which the dispute arose. To find out how to initiate an arbitration, please call any office of the AAA. Right Of Set Off Preserved: This Arbitration Agreement and the exercise of any of the rights Company or Bank have under this Arbitration Agreement do not stop Company or Bank from exercising any lawful rights either has to use other remedies available to preserve, foreclose or obtain possession of real or personal property; exercise self-help remedies, including set-off and repossession rights; or obtain provisional or ancillary remedies such as injunctive relief, sequestration, attachment, garnishment or court appointment of a receiver. Miscellaneous: Company and Bank agree to take all steps, and execute all documents, necessary for the implementation of arbitration proceedings. The arbitrator may hear and rule on appropriate dispositive motions as part of the arbitration proceeding, such as motions for judgments on the pleadings, summary judgment or partial summary judgment. The AAA, arbitrator(s), Company and Bank, must take all feasible steps to assure that an arbitration proceeding, as described herein, is completed within 180 days of filing the dispute with the AAA and may not disclose the existence, content or results of the arbitration, except for disclosures of information by Company or Bank required in the ordinary course of business or by applicable law or regulation. Arbitration proceedings are conducted in the state in which the Bank office where Company executed this Agreement is located, at a location determined by the AAA. All statutes of limitations applicable to any dispute apply to any arbitration between Company and Bank. The provisions of this Arbitration Agreement shall survive termination, amendment or expiration of this Agreement, Company's account relationship or any other relationship between Company and Bank. This Arbitration Agreement constitutes the entire agreement between Company and Bank and supersedes all prior arrangements and other communications concerning dispute resolution. In the event more than one arbitration agreement has been entered into between Company and Bank, the one most directly related to the account or transaction that is the subject of the dispute shall control. Modification of Terms. Bank reserves the right to add, change, or delete (individually and collectively referred to as a "modification") the terms and conditions described in this Agreement and the fees contained in any fee and information schedule. Except in the case of modifications in FDIC charges, Bank will send Company prior notice of any such modification. If Company does not wish to be bound by modification, it may discontinue using the Service affected by the modification or close the account before the effective date of the modification. Company's continued use of the account, or, if the modification only affects a specific Service, Company's use of that Service, after the modification becomes effective will be deemed to be Company's agreement to it. U� Laws Governing the Account. The account is governed by the laws and regulations of the United States and, to the extent applicable, the laws of the state in which the office of the Bank that maintains the account is located (unless Bank has notified Company in writing that the laws of another state shall govern the account), without regard to conflicts of laws principles. Company and Bank agree that any lawsuits, claims, or other proceedings arising from or relating to the account or this Agreement will be venued exclusively in the state or federal courts in the state whose laws govern the account. Any term or condition contained in this Agreement which is inconsistent with applicable law or regulation will be deemed modified and applied in a manner consistent with such law or regulation. Any term or condition deemed unenforceable or invalid will not affect the enforceability or validity of the remaining provisions of this Agreement. Verification of Transactions; Right to Reverse Erroneous Credits. All transactions, including without limitation those for which Bank has provided a receipt, are subject to Bank's final verification. Bank is not responsible for a deposit until it has been received and verified by a Bank employee. A receipt received at the time of deposit is not evidence that a deposit has been verified. Bank may reverse or otherwise adjust any credit it believes it has erroneously made to the account at any time without prior notice to Company. Affiliates. Deposits and withdrawals may be made at a bank affiliated with Bank (an "affiliate"), provided the affiliate agrees. If a deposit is made at an affiliate, the availability of the deposit for withdrawal will be described in the affiliate's funds availability policy. If an affiliate cashes an Item for Company, Bank may place a hold on the account for a corresponding amount of funds. If the Item is later returned to the affiliate for any reason, Bank may debit the account at Bank for the amount of the Item. Statements and Items Paid. Statements, notices, and other information regarding the account will be mailed to the address reflected in Bank's records for the account, unless Bank agrees otherwise in writing. Company agrees to promptly examine each statement received from Bank and to promptly report any erroneous credit or debit. Company also agrees that within thirty (30) days after Bank mails or otherwise makes the statement available, Company will report to Bank any claim for credit or refund due to an erroneous or unauthorized debit, a missing signature, an unauthorized signature, or an alteration. Statements are deemed to have been mailed on the first business day following the statement date. Within six (6) months after Bank mails or otherwise makes the statement available, Company will report to Bank any claim for credit or refund resulting from a forged, unauthorized, or missing endorsement. Such reports are to be made by (i) calling the telephone number listed on Company's account statement for such purpose and (ii) submitting a written report to Bank as soon as possible, but in any event, within the time frames described in this section. Without regard to care or lack of care on the part of Bank, if Bank does not receive notice within the time frames specified above, Bank is released from all liability for the Items charged to the account and for all other transactions or matters covered by the statement. Check Endorsement Requirements. By Federal regulation, the area on the back of an Item between 1-1/2 inches from the "trailing edge" and 3 inches from the "leading edge" is reserved for depository bank endorsement (the "Depository Bank Endorsement Area") and must be kept clear and unobstructed. The endorsement of the payee or depositor should be placed on the back of the Item along the "trailing edge" but must not be placed in the Depository Bank Endorsement Area. 6s V� If Company marks or obscures the Depository Bank Endorsement Area or Company cashes or deposits an Item on which the Depository Bank Endorsement Area is marked or obscured, a delay may occur if the Item must be returned. Examples of marks which may obscure the reserved area are endorsements, rubber stamp imprints, carbon bands and preprinted information. Any resulting delay or loss is Company's responsibility. COMPANY AGREES TO HOLD BANK HARMLESS FROM ANY LOSS, LIABILITY, OR DAMAGE BANK MAY SUFFER OR INCUR ARISING FROM OR IN ANY WAY RELATED TO MARKS APPEARING IN THE DEPOSITORY BANK ENDORSEMENT AREA AT THE TIME OF ENCASHMENT OR DEPOSIT. When Deposits Are Credited to the Account. All over-the-counter deposits or ATM deposits to the account which are received before Bank's established cutoff time on any Business Day will be credited (and will be considered deposited) to the account as of the close of business that day, and will be reflected in that day's Ledger Balance. All other deposits (such as cash letter or lockbox) will be processed in accordance with separate agreements or banking practice. All deposits received after Bank's established cutoff time on a Business Day or at any time on a day which is not a Business Day will be credited (and will be considered deposited) to the account at the end of the next Business Day. Deposits placed in one of Bank's "night depositories" before the established deadline on any Business Day will be credited to the account at the close of business on that same day; all other deposits placed in the "night depository" will be credited to the account at the end of the next Business Day. All deposits are accepted subject to verification. Bank reserves the right to make adjustments to the account for computation or other errors. Use of Funds. Company's use of funds deposited to its account will be governed by Bank's separately disclosed collection schedule and funds availability policy. The collection schedule describes when deposits of items that satisfy certain criteria will be considered collected. Uncollected funds may not be available to be used for all purposes. There may also be a fee charged in connection with any use of uncollected funds that is permitted by Bank. The funds availability policy describes when funds deposited to Company's checking account will be available to be used for all purposes. The collection schedule and funds availability policy may change from time to time without prior notice. Deposited Items Returned. Bank has the right to charge back or otherwise debit any of Company's account(s) for any Deposited Item that is returned (and to reverse or recover any associated interest that may have accrued), even if Company made withdrawals against it. This right of charge -back or debit is not affected by the expiration of any applicable midnight deadline, provided Bank does not have actual knowledge that such deadline has expired, or having such knowledge, Bank concludes that: (i) the Deposited Item is returned according to a law, regulation, or rule (including a clearinghouse rule) that is binding on Bank; or (ii) Bank has received a claim that a transfer or presentment warranty has been breached in connection with the Deposited Item. Bank has the right to pursue collection of such Deposited Item, even to the extent of allowing the payor bank to hold the Deposited Item beyond the midnight deadline in an attempt to recover payment. Bank may redeposit a returned Deposited Item and represent it for payment by any means (including electronic means), unless Bank has received instructions from Company not to redeposit such Deposited Item. Bank will have no liability for taking or failing to take any action to recover payment of a returned Deposited Item. If a Deposited Items is returned with a claim that there has been a breach of a warranty (for 61 �7 example, that it bears a forged endorsement or has been altered in any way), Bank may debit Company's account for the amount of the Deposited Item (plus any associated fees) and pay the amount to the claiming party. Bank is under no duty to question the truth of the facts that are being asserted, to assess the timeliness of the claim, or to assert any defense. Bank need not give Company any prior notification of its actions with respect to the claim. Bank will have no liability to Company if there are insufficient available funds to pay your Items because Bank has withdrawn funds from the account or in any way restricted Company's access to funds because it has placed a hold on or debited the account in connection with a Deposited Item returned for a breach of a warranty claim. Company agrees to immediately repay any overdraft caused by the return of a Deposited Item. Breach of Warranties. If Company breaches any warranty with respect to any Item, Company is not released or otherwise discharged from any liability for such breach as long as Bank notifies Company of the breach within one hundred twenty (120) days after Bank is notified. If Bank fails to notify Company within this one hundred twenty (120) day period, Company is released from liability and discharged only to the extent that Banks failure to provide Company notice within such time period caused a loss to Company. Determining Balance; Debiting the Account; Order of Posting. A determination of the account balance for purposes of making a decision to dishonor an Item for insufficiency or unavailability of funds may be made at any time between the presentment of the Item (or earlier upon receipt of any notice of presentment) and the time of return of the Item. No more than one such determination need be made. The account may be debited on the day an Item is presented by any means, including without limitation electronically, or at an earlier time based on notification received by Bank that an Item will be presented for payment or collection. Bank may pay Items presented against the account in any order it chooses, unless a particular order is either required or prohibited by law. In particular, Bank may, if it chooses, pay Items in the order of highest dollar amount to lowest dollar amount (unless such a practice is specifically prohibited by an applicable state or federal law, rule, or regulation). Bank may change the order of posting Items to the account at any time without notice. Security Interest; Bank's Right to Setoff. Bank may setoff against any accounts of Company maintained with Bank or any affiliate (including matured and unmatured time accounts) for any obligation Company owes Bank, whether due or not, at any time and for any reason as allowed by law. Company grants Bank a security interest in the account for the purpose of securing any obligations that may from time to time arise under this Agreement. Bank may consider this Agreement as Company's consent to Bank's exercising its right of setoff or asserting its security interest should any law require consent. Bank may fund all or a portion of any overdraft in one of Company's accounts at Bank by charging any of Company's other deposit accounts at Bank or any affiliate of bank, including without limitation any transaction account that is part of a sweep account, even though such charge overdraws the other account. The rights described in this section are in addition to and apart from any other rights, including any rights granted under any security interest agreement, that may have been granted to Bank. Lost Items. When Company cashes or deposits a check or other Item at Bank, Bank acts as Company's collecting agent to collect the Item. Company has the risk of loss, including reconstruction costs, for Items lost while in the process of collection. If an Item deposited in the account is lost in transit, Bank may reverse the credit given for PA that Item. If an Item Company cashes at Bank is lost in transit, Bank may recover the funds given to Company from any of Company's accounts at Bank or any affiliate, or directly from Company. Service Fees. Company agrees to pay Bank in accordance with the fees set out in Bank's then current fee and information schedule applicable to the account. Company also agrees to pay an amount equal to any applicable taxes, however designated, exclusive of taxes based on the net income of Bank. Usury Savings Clause. It is never the intention of Bank to violate any applicable usury or interest rate laws. Bank does not agree or intend to contract for, charge, collect, take, reserve or receive (collectively referred to herein as "charge or collect"), any amount in the nature of interest or in the nature of a fee, penalty or other charge, which would in any way or event (including demand, prepayment or acceleration) cause Bank to charge or collect more than the maximum Bank would be permitted to charge or collect by any applicable federal or state law. Any such excess interest or unauthorized fee will, notwithstanding anything stated to the contrary, be applied first to reduce the true indebtedness, if any, and any excess amounts will be refunded. Earnings Allowance. The average monthly Investable Balance in a commercial demand deposit account may earn an "Earnings Allowance" which, depending on the arrangement with Bank, may be applied against that month's service fees for the account. An Earnings Allowance in excess of the total monthly service fees cannot be credited to the account as interest and may not be carried forward to the following month. Earnings Allowances are calculated on a 365/366-day year basis using an "Earnings Allowance Rate", which is a variable rate established by Bank (and which may be as low as zero percent). This rate is determined monthly and is applied to the average Investable Balance for that month using the following formula: Earnings Allowance Rate multiplied by the number of days in the month divided by 3651366 days multiplied by the average Investable Balance for that month. As the factors used in the formula change, the Earnings Allowance earned on a given average monthly Investable Balance will vary. Payment of Fees; Finance Charges. Company may either be directly debited or invoiced for fees, charges and taxes incurred in connection with the account. Except as otherwise agreed in writing, all fees and taxes will be periodically debited against Company's accrued Earnings Allowance. Bank may debit Company's account(s) with Bank for any amount by which the fees or taxes exceed the accrued Earnings Allowance, or may send an invoice to Company for such amount which Company will promptly pay. Bank may assess finance charges on any invoiced amounts that are not paid within forty (45) days of the date of invoice. Finance charges are assessed at a rate of 1.5 % per month (18 % per annum) or the highest amount permitted by law, whichever is less. Charges for accrued and unpaid interest and previously assessed finance charges will not be included when calculating finance charges. Payments and other reductions of amounts owed will be applied first to that portion of outstanding fees attributable to charges for accrued and unpaid interest and previously assessed finance charges, then to other fees and charges. Debiting of service fees occurs on the twentieth day of each month, or; if the twentieth day is not a Business Day, on the next succeeding Business Day. Dates and Special Instructions on Checks. Bank may, without inquiry or liability, pay Company's checks even though: (i) special instructions written on the checks indicate that Bank should refuse payment (e.g., "Void after 30 days," "Paid -in - Full", or "Void over $100"); (ii) the check is stale -dated (i.e., it bears a date that is 69 10 more than six (6) months in the past), even if Bank has knowledge of the date on the check; (iii) the check is post-dated (i.e., it bears a date in the future); or (iv) the check is not dated. In addition, Bank may pay in U.S. dollars the amount that has been MICR -encoded on any check drawn by Company, even though Company has purportedly drawn the check in a foreign currency. Stop Payment Orders; Notices of Post Daring. The term "stop payment order" refers to both an order to Bank not to pay a check and to a notice of postdating. To be effective, a stop payment order must be received in a time and manner that gives Bank a reasonable opportunity to act on it before paying, accepting, certifying, cashing or otherwise becoming obligated to pay Company's check as provided in the Uniform Commercial Code. In addition to Company's name and account number, Bank requires the exact name of the payee, the exact check number, and the exact amount of the check. All of the information must be correct in order for Bank to stop payment of a check. Bank will have no liability for paying the check if any of. the information provided in the stop payment order is incorrect or incomplete. Bank may require information regarding the underlying transaction for which the check was issued including without limitation proof that Company does not owe the money to the payee of the check prior to making any decision regarding recrediting the account. Bank need not honor a written stop payment order for more than six (6) months. However, there are circumstances in which Bank may, in its sole discretion, elect to honor a stop payment order for a longer period of time without notice. Company must renew its stop payment order if it does not want the stop payment order to expire. Each renewal is treated as a new stop payment order. If the check is presented for payment during the period a stop payment order is effective, every effort will be made to return the check, provided the stop payment order is accurate and complete. Bank may pay a check after an order has expired even though the check is more than six (6) months old. An instruction to revoke a stop payment order must be received in a time and manner that gives Bank a reasonable opportunity to act on it. If Bank recredits the account after paying a post-dated check over a valid and timely notice, Bank may charge the account for the amount of the check as of the date of the check. If Company does not comply with these conditions, Company will be responsible to Bank for the full amount of the check, and Bank may charge the account for that amount. Adverse Claims. If Bank receives a claim to all or a portion of the account that is adverse to Company's interest or if a dispute arises regarding the identity of the authorized signer(s), and .Bank (i) cannot in good faith determine the relative rights of the person(s) making claim to the funds or authority or (ii) does not believe that it is otherwise adequately protected if it ignores the claim or dispute, Bank may without liability to Company and in its sole discretion: (a) place a hold on funds in the account or any other Company account subject to the claim or dispute, (b) close the account and send the funds to Company or to Company and the claimant(s), or (c) interplead the funds. If Bank places a hold on the funds, the hold may be placed for any period of time Bank believes to be reasonably necessary to allow a legal proceeding to determine the merits of the claim or dispute to be instituted. Overdrafts and Insufficient Funds. Bank may, at its option, pay or refuse to pay any Item if it would create an overdraft without regard to whether Bank may have previously established a pattern of honoring such Items. Bank may place a hold on balances in any other account of Company until the overdraft is paid or it may setoff the amount of the overdraft against any other accounts of Company in accordance with the terms of this Agreement. Bank has no obligation to notify Company before it decides to either pay an Item that creates an overdraft or to 10 11 dishonor an Item that is drawn against insufficient funds. If Bank pays an Item against insufficient funds, Company agrees to repay any overdraft immediately. Company will be required to pay for any costs of collection that Bank incurs in recovering the overdraft from it, including its reasonable attorneys' fees and court costs. Acts and Omissions of Other Financial Institutions. When Bank cashes or collects an Item for CoTany or accepts an Item for deposit to the account (each of which is referred to in this Agreement as a "Deposited Item"), Bank is not responsible for the insolvency, neglect, misconduct, mistake or default of another bank or person or for the loss or destruction of an Item or notice of non-payment in transit or in the possession of others. If a Deposited Item is lost or misrouted by another financial institution (a "Collecting Bank") during the collection process: (i) Bank will have no responsibility to Company for the actions or inactions of the Collecting Bank; (ii) Bank may charge the account for the amount of the Deposited Item (and reverse any interest that may have accrued to the account in connection with the Deposited Item); and (iii) Company agrees to cooperate with Bank in recreating the Deposited Item. Checks Presented Over -the -Counter for Payment by a Non -Customer. If a check drawn against the account is presented over-the-counter for payment by a person who is not a deposit customer of Bank, Bank may charge a fee to the person presenting the check as a condition for payment of the check. Bank may require identification acceptable to Bank and not prohibited by law, including a fingerprint of the person presenting the check. Bank may dishonor the check if the person refuses to pay the fee or provide the identification requested by Bank. Forgeries or Missing Signatures; Alterations. Bank will have no responsibility for reviewing the number or combination of signatures on an Item drawn against the account. This means that if Company has indicated that more than one signature is required in connection with an Item drawn on the account, Bank will have no liability to Company if a transaction is conducted on or through the account contrary to the signature requirements Company has specified, provided at least one of the required signatures appears on the Item. Bank will have no liability to Company for failing to detect a forged signature or an alteration of an Item, if the forgery or alteration is such that a reasonable person could not reasonably be expected to detect it. Limitation of Liability; Indemnification WHETHER IN CONNECTION WITH A SERVICE OR THE ACCOUNT, IN NO EVENT WILL BANK, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, WHETHER ANY CLAIM IS BASED ON CONTRACT OR TORT OR WHETHER THE LIKELIHOOD OF SUCH DAMAGES WAS KNOWN TO BANK. Except to the extent that Bank is liable, Company agrees to indemnify and hold Bank and its directors, officers, employees and agents harmless from all claims, demands, losses, liabilities, judgments, and expenses (including their reasonable attorneys' fees and legal expenses) arising out of or in any way connected with performance under this Agreement. Company agrees that this indemnification will survive termination of this Agreement. Legends. Company is responsible for all claims, demands, losses, liabilities, judgments or expenses that result from a restrictive legend or notation on Company's checks. 71 12 Facsimile or Mechanical Signatures. If Company uses a facsimile or other mechanical signature (including a stamp) to sign Items or endorse Items, Bank may rely on that signature as Company's authorized signature without regard to when or by whom or by what means such signature may have been made or affixed to an Item deposited to the account or drawn against or otherwise debited from the account. If Company uses a facsimile or other mechanical signature (including a stamp) to sign or endorse Items, Bank may also conclusively treat as authorized any signature that reasonably resembles Company's facsimile or mechanical signature. Lost or Stolen Checks. Company is in the best position to prevent the wrongful use of the account. If Company's checks are lost or stolen, Company must immediately notify Bank at the telephone number listed on Company's account statement for such purpose. Failure to do so will hamper Bank's ability to prevent loss and will, therefore, relieve Bank of any liability regarding the checks. Upon such notification, Bank may at its discretion, close the account and open a new one. All checks will then be returned as "Account Closed" unless Company specifically requests that a particular check be paid. (To make such an exception, Bank must agree to provide the service and Company must in a timely manner provide Bank with the check number, dollar amount and the name of the payee.) If third parties make regular deposits to or withdrawals from the account (such as wires or ACH transfers), Company must notify those parties of the new account number immediately. Protection Against Unauthorized Items. Company acknowledges that there is a growing risk of loss from the increasing use of unauthorized Items including without limitation counterfeit checks, demand drafts, and unauthorized ACH items. Company is aware that Bank offers Services that provide effective means for controlling the risk from unauthorized Items. These Services include: • "Positive Pay" Service (offered by Bank in conjunction with Bank's account reconcilement plan Services), and • "ACH Fraud Filter." Bank has advised Company that if Company does not use Bank's Positive Pay Service and ACH Fraud Filter Service, Bank will be unable to prevent losses on Company's account(s) from unauthorized Items including without limitation counterfeit checks, demand drafts, and unauthorized ACH items, and Company will therefore be treated as having assumed the risk of these losses. Internal Controls. Company shares responsibility for preventing the fraudulent or unauthorized use of the account. Company agrees to take reasonable steps to ensure the integrity of its internal procedures with respect to its checks and the account. Payment Authorization Service. Company may, by executing and delivering to Bank a Payment Authorization Service Setup Form ("Setup Form"), elect to utilize Bank's Payment Authorization Service for the account. Under the terms of such Service, Bank will, without Company's specific approval as to any particular Item, (i) automatically return unpaid (marked "REFER TO MAKER") Items drawn against the account which are presented to Bank, and which exceed the "Maximum Dollar Authorized Payment Amount" specified on the Setup Form, (ii) refuse encashment of Items drawn against the account which are presented to Bank through its branch/store network, and which exceed the "Maximum Check Cashing Amount" specified on the Setup Form, (iii) refuse withdrawal requests against the account which are presented to Bank through its branch/store network, and which exceed the "Maximum over the Counter Withdrawal Amount" specified on the 13 Setup Form, and/or (iv) refuse encashment of Items drawn against the account which are presented to Bank through its branch/store network, and which are made payable to an individual. Transferring an Interest in the Account. The account may not be pledged, assigned, or in any other manner transferred, whether in whole or in part, without the written agreement of Bank. Bank does not have to accept or in any way recognize the transfer. Interest -Bearing Accounts. If the account earns interest, the account is a variable - rate account. Interest is compounded daily and paid monthly to the account when the statement cycles. The account earns interest on the Investable Balance maintained. Bank may in its sole discretion change the interest rate on the account at any time. If an Item, such as a check, is deposited to the account, interest begins to accrue no later than the Business Day Bank receives credit for the deposit of that Item. Checking Subaccounts. For each checking account, Bank may establish on Company's behalf, a master account and two subaccounts. All information that is made available to Company about the account will be at the master account level. The subaccounts are comprised of a savings account and a transaction account. At the beginning of each statement period, Bank will allocate funds between the two subaccounts as it deems appropriate. Checks received by Bank that are drawn against the master account will be presented for payment against the transaction subaccount. Funds will be transferred from the savings subaccount to cover checks presented against the transaction subaccount as may be needed. On the sixth transfer from the savings subaccount during a statement period all of the funds on deposit in the savings subaccount will be transferred to the transaction subaccount. If the account earns interest, the use of subaccounts will not affect the interest earned. Additional Terms Applicable to All Commercial Money Market Deposit Accounts. Bank has the right to require seven (7) days' written notice before Company withdraws money from any commercial money market deposit account ("MMDA"). Preauthorized transfers, automatic transfers, on-line transfers, point of sale purchases, payments to other persons, and transfers by telephone from Company's MMDA are limited to a total of six in any calendar month or statement cycle. Preauthorized transfers include automatic bill payments, transfers to Company's other accounts with Bank, or automatic transfers to other persons that Company has authorized Bank to make. If Bank permits transfers from Company's MMDA by check, draft, check card or any similar order for withdrawal, no more than three of the six transfers may be made by such means in any calendar month or statement cycle. If Bank determines that Company is exceeding the limits described above on more than an occasional basis, Bank will, at its option, either close Company's MMDA, transfer the funds on deposit in Company's account to another account that Company is eligible to maintain, or terminate Company's right to make transfers and write Items against its MMDA. Target Balance Accounts. If Company maintains multiple accounts at Bank, Company may designate in writing one such account as its "Principal Account" and one or more additional accounts as "Target Balance Accounts". For each Target Balance Account, Company will separately specify to Bank in writing the Ledger Balance or Collected Balance which Company wishes to maintain in such account (the "Target Balance"). At the end of each Business Day, Bank will determine the applicable balance on deposit in each Target Balance Account. If the applicable balance in a Target Balance Account exceeds its Target Balance, Bank will transfer from the Target Balance Account to the Principal Account such funds as are 10 73 14 necessary to bring the applicable balance to the Target Balance. If the applicable balance is less than the Target Balance, Bank will transfer from the Principal Account to the Target Balance Account such funds as are necessary to bring the applicable balance to the Target Balance. Bank may, but will not be required to, transfer funds if the transfer would create an overdraft or exceed the Collected Balance then on deposit in the Principal Account. Funds Transfers Rules of Funds Transfer Systems. Funds transfers to or from the account will be governed by the rules of any funds transfer system through which the transfers are made, as amended from time to time, including without limitation the National Automated Clearing House Association and any regional association (each an "ACH"), Clearing House Interbank Payments Society, Society for Worldwide Interbank Financial Telecommunications, and Electronic Check Clearing House Organization. The following terms and conditions are in addition to, and not in place of, any other agreements Company has with Bank regarding electronic transactions. Notice of Receipt of Funds. Unless Bank has otherwise agreed in writing, it will notify Company of funds credited to the account through Company's account statement covering the period in which the funds were credited. Bank is under no obligation to provide Company with any additional notice or receipt. ACH Transactions. The following terms apply to payments to or from the account that are transmitted through an ACH. • Company's rights as to payments to or from the account will be governed by the laws of the state that govern the account. • Credit given by a receiving bank to its customer for a payment from the account is provisional until final settlement has been made or until payment is considered received under applicable law. • If final settlement or payment is not made or received, the receiving bank will be entitled to a refund from its customer and Company, as the originator of the payment, will not be considered to have paid Company's customer. • If a payment is made to the account and Bank does not receive final settlement or payment is not received under applicable law, Company will not be considered to have received payment and Bank will be entitled to reimbursement from Company for that payment. Business ATMTM and Express ATMTM Services. Company may elect to utilize Bank's Business ATM Service or Express ATM Service by completing and returning to Bank a Business ATM Setup Form or an Express ATM Setup Form, respectively. These Services will allow Company to make deposits to the account using a Business Express Deposit Card ( "Deposit Card") and either a designated depository attached to an ATM ("Business ATM Depository") (in the case of the Business ATM Service) or a designated ATM (in the case of the Express ATM Service.) Company shall make such deposits according to the instructions Bank provides and shall gain access to the Business ATM Depository or ATM using the Deposit Card and a PIN, the risk of misuse of both of which Company agrees to assume. Bank will process the deposits, and each deposit to the account will be generated electronically via Company's ATM input. Company will receive immediate intra-day availability for currency and food 11 15 stamps subject to the standard cut-off time established for the ATM into which the deposit was entered and funds availability for checks in accordance with Bank's most recent ATM funds availability policy schedule. If there is a difference between Bank's total and Company's total (as shown on Company's ATM receipt) of the dollar amount of the Deposited Items, Bank will send Company a statement showing the amount of this difference. In the event that such difference cannot be resolved, Banks count of the dollar amount will be conclusive and binding on Company. Company will have full responsibility for each bag or envelope used to make deposits and its contents until the bag has dropped completely down into a Business ATM Depository or the envelope has been completely physically accepted into the ATM depository. If Company contends that a Deposited Item was lost or stolen while in Bank's custody, Company acknowledges that it has the burden of proving that claim. Company authorizes Bank to initiate debits to the account and credits to the accounts of third party vendors to cover the cost of Business ATM or Express ATM Service supplies provided to Company. Transfers may be processed through an automated clearing house or any other means chosen by Bank and will be subject to the rules of the funds transfer system used by Bank. This authorization will remain in full force and effect until Bank has received written notification from Company of its termination in such time and in such manner as to afford Bank and any third party vendor a reasonable opportunity to act on it. CheXstorl' Service. Company may elect to utilize Bank's CheXstor Service in connection with the account. As part of this Service, Bank will maintain microfilm records of all Items paid against the account for a period of seven years or any longer period required by applicable law ("Record Period"). Canceled Items are shredded and recycled as part of Bank's commitment to improve the environment. Under this service, Bank will provide a photocopy of any Item posted against the account which Company requests during the Record Period. Company may request a photocopy electronically via its personal computer or by contacting Bank at the telephone number listed on Company's account statement for such purpose. If Bank fails to provide Company with a copy of an Item Company requests during the Record Period, Bank will reimburse Company for (and Bank's liability will be limited to) any direct loss Company incurs as a result of the Item's unavailability (not to exceed the amount of the Item). Bank will require Company to substantiate any claimed loss. Treasury Expresssm Deposit bag ("TEDV) service. If Company elects to utilize Bank's TEDb service, Company will prepare, package and deliver TEDb deposits to Bank in accordance with Bank's instructions. Bank will provisionally credit Company's account for the currency shown on the deposit ticket enclosed in Company's TEDb bag as follows: (i) same day credit for deposits delivered to a Bank office before that office's cut-off time on any Business Day or for deposits placed in a Bank night depository before 6:00 a.m. on any Business Day; or (ii) next Business Day credit for deposits delivered on any Business Day on or after the Bank's office's cut-off time or on any non -Business Day. All TEDb deposits are subject to Bank's acceptance and verification. Bank will verify the currency in Company's TEDb bag either at a later time in the Bank office or when Company's TEDb bag is delivered to Bank's cash vault. Checks will be verified when they are delivered to Bank's check processing center. Bank reserves the right to adjust (debit or credit) Company's account if Bank determines that the amount shown on Company's deposit ticket is incorrect. Because the frequency of armored courier transportation from Bank's offices to Bank's vaults varies from office to office, the time it takes to verify 12 r.0 16 Company's deposit may vary, depending on the office to which Company's TEDb bag is delivered. In most cases, adjustments will be made and notification will be sent within three Business Days. Adjustments will be effective as of the date provisional credit was given for Company's deposit. Legal Process. Bank may accept and act on any legal process that it believes is valid, whether served in person, by mail or by facsimile transmission, at any Bank location. Legal process includes a levy, garnishment or attachment, tax levy or withholding order, injunction, restraining order, subpoena, search warrant, government agency request for information, forfeiture, or other legal process relating to the account. Any such legal process is subject to Bank's security interest and right of setoff. Bank will not notify Company of a grand jury subpoena affecting its account. Any fees or expenses Bank incurs in responding to any such legal process may be charged against any account, Company maintains with Bank. Bank will not have any liability if there are insufficient available funds to pay Company's Items because Bank has withdrawn funds from the account or in any way restricted Company's access to funds because of legal process. Disclosure of Information. Generally, Bank will not disclose information about Company's accounts, but may do so under the following circumstances: (i) to comply with a statute, regulation, or rule; (ii) in connection with examinations by state and federal banking authorities; (iii) to comply with any legal process, including without limitation a subpoena, search warrant or other order of a government agency or court; (iv) when Bank determines that disclosure is necessary or appropriate in order to complete a transaction; (v) to verify the existence and condition of the account for a third party, such as a merchant or credit bureau; (vi) to provide information to Company's legal representative or successor; (vii) when reporting the involuntary closure of the account; (viii) when Bank concludes that disclosure is necessary to protect Company, the account, or the interests of Bank; (ix) to agents, independent contractors, and other representatives of Bank in connection with the servicing or processing of the account or account transactions, account analysis, or similar purposes; (x) to its affiliated banks and companies; or (xi) if Company gives its permission. Inactive Accounts. If the account has had no withdrawal or deposit activity, and Bank has had no contact from Company regarding the account for one year, the account will be considered inactive and Bank may cease sending account statements. Except where prohibited, Service fees and other terms applicable to active accounts, including all changes to these terms, will apply to the account while it is inactive. If the account has any deposit or withdrawal activity or Company contacts Bank about the account, it will be reinstated as an active account. Closing the Account. Either Company, through its authorized signer(s), or Bank may close the account at any time without prior notice. If the signature of more than one authorized signer is required for signing checks, the same number of authorized signers will be required for Company to close its account. Instructions received by facsimile to close the account will not be accepted. Closure of the account will not affect Company's obligation to pay Wells Fargo any amounts owed with respect to the account. Customer Service. In the event of questions or errors regarding Company's account transactions, records or statements Company should immediately call the telephone number listed on Company's account statement for such purpose. 13 76 17 Warranty. In addition to any other warranties that Company makes by law or agreement, Company also warrants that all signatures on any Deposited Items are authentic and authorized. Monitoring Telephone Communications. Bank may monitor, record and retain telephone conversations, electronic messages, electronic records and other data transmissions at any time without further notice to anyone and will have no liability for doing or failing to do so. Credit Reports. Company authorizes Bank to obtain credit reports and make whatever other inquiries Bank deems appropriate concerning Company. Questions. Company's relationship manager can answer questions and assist in resolving any issues that may arise from time to time. Miscellaneous. This Agreement will constitute the entire agreement between Bank and Company and supersede prior oral or written representations, conditions, warranties, understandings, proposals or agreements regarding the account. Headings do not constitute a part of this Agreement. Any notice or other communication may be sent to Company at its then current address on file with Bank. Bank will have a reasonable time after receipt of any notice or other communication to act on it. No person or entity will be deemed to be a third party beneficiary under this Agreement. Bank may establish cut-off times, and may change those cut-off times upon reasonable notice to Company. Certain Defined Terms Business Day —is a day, other than a Saturday, Sunday or day when Federal Reserve Banks are closed. Collected Balance —is the Ledger Balance in the account less Deposit Float. Deposit Float —is the total dollar amount of Items deposited in the account for which, based on the collected funds schedule used by Bank or the applicable affiliate for this type of account, the account has not yet been credited for purposes of calculating the Collected Balance. Investable Balance —is the Collected Balance in the account less (i) the portion of such Collected Balance that Wells Fargo is required by law to hold in reserve at a Federal Reserve Bank and (ii) other adjustments. Item —includes a check, draft, demand draft, preauthorized draft, or other order or instruction for the payment, transfer, or withdrawal of funds (including a withdrawal slip), automatic transfers, and electronic transactions (including ACH, ATM, and POS). "Item" also includes any writing created or authorized by Company that would be a check or draft but for the fact that it has not been signed. Ledger Balance —is the balance in the account after all debits and credits for the day are posted. Service —any Service Bank provides to Company including, without limitation, any Treasury Management Service. 14 18 © 2003 Wells Fargo Banks All rights reserved. Members FDIC COM 5603 (2-03-57950) f ACCOUNT RECONCILIATION PLAN SERVICE DESCRIPTION 1. Description of Services. Bank's Account Reconciliation Plan ("ARP") assists commercial customers in reconciling their checking account to their internal accounting records (the "Services"). The Services offered by Bank pursuant to the terms of this Service Description, one or more of which have been separately designated by Company in the ARP Services Set-up Form delivered to Bank, are generally described as follows: 1.1. Full ARP Service: The Full ARP Service will provide Company with assistance in reconciling statements for the transaction account(s) at Bank separately designated in writing including electronic writings (the "Account') as provided in this Service Description and the other Service Documentation. Company will provide Bank with the issue date, serial number and dollar amount of each check it has issued on the Account (the "issued check information"). Issued check information may be submitted via electronic transmission directly to Bank, or Company may deliver it in the form of either MICR, diskette or magnetic tape to a data processing specialist, in accordance with Bank's instructions. Bank will electronically reconcile the Account by matching the issued check information against checks that have been paid. Bank will send a full ARP statement to Company after receiving Company's final issued check information for the period covered by the statement. Bank will provide a full ARP statement to Company via paper media or online through Commercial Electronic Office®. The full ARP statement will include the following sections: ■ Detailed Credits ■ Detailed Checks ■ Detailed Other Debits ■ Balance by Date • Issue By Date ■ Reconcilement Summary ■ Reconcilement Detail • Statement Recap ■ Input Not Accepted The following additional optional reports will detail specific portions of the full ARP statement and are available in the media of Company's choice. A variety of options exist for grouping, sorting and subtotaling reports, including: ■ Issue Notices Not Received Report ■ Outstanding Checks Report ■ Voids and Cancels Report ■ Issues This Cycle Report ■ Unpaid Checks Report ■ Match Paid Items Report ■ Prior Payments Report ■ Posted Items Report ■ Credits Report ■ Bank Originated Entries Report • Stop Payment Report Account Reconciliation Plan Service Description (Revised 07103) ■ Reversed Checks Report • Paid Checks Report ■ Deposit Location Report Page 1 of 2 79 20 1.2. Partial ARP Service: The partial ARP Service will enable Company to receive a paper report and/or computer readable file of paid check information to assist Company to reconcile statements for the transaction account(s) at Bank separately designated in writing (the "Account") as provided in this Service Description and the other Service Documentation. On Company's account statement date, Bank will prepare a partial ARP statement. Bank will provide a partial ARP statement to Company via paper media or online through Commercial Electronic Office®. Company may have the activity on the statement grouped, sorted and subtotaled according to its predetermined needs. The partial ARP statement will include the following sections: ■ Detailed Credits ■ Balance By Date ■ Detailed Checks ■ Statement Recap ■ Detailed Other Debits The following optional reports will be available at frequencies that will match Company's business cycles and a variety of options exist for grouping, sorting and subtotaling reports, including: ■ Posted Items Listing ■ Bank -Originated Entries Report ■ Credits Report ■ Reversed Checks Report ■ Stop Payments Report ■ Deposit Location Report ■ Paid Checks Report Bank may charge additional fees for these optional services. Bank may add or delete reports and revise the content and format of the partial ARP statement and the reports at any time. 1.3. Deposit Location Reporting: Deposit Location Reporting ("DLR") is a Service feature that can enhance the usefulness of the deposit portion of Company's bank statement. DLR is offered in conjunction with both the Full ARP and Partial ARP Services. DLR provides the location number and location name on the ARP optional reports. If Company chooses to use DLR, Company will provide Bank with a list of its location numbers and names, and may amend the list from time to time by notice to Bank in writing. DLR includes the following features: ■ Company's location names are systematically matched with location numbers and reported on optional reports. ■ A Deposit by Location optional report, containing all deposit -related activity, is available. ■ Deposit -related transactions may include: cash vault deposits, branch deposits, automated clearing house transactions, business automated teller machine express deposits, deposit adjustments and returned items. 2. Statement Cycles. The cycle for both full and partial ARP statements will be the same as the cycle for the Account statements. 2.1 Election to SUDDress Paper Statements: Company may, by notificaiton to Bank, elect to terminate its receipt of periodic paper account statements in lieu of online statements or electronic data transmissions. If such an election is made, Bank will not be able to recreate statements retroactively. 3. Adjustments. Bank will make debit and credit adjustments to Company's account in conformity with then current banking industry practices to reflect encoding errors made by third parties during the check collection process. Company agrees that it shall not have any right to nor make a claim for the amount of any such adjustment that is $25.00 or less, and Bank change such amount from time to time without notice to Company. Account Recondiation Plan Service Descriptan (Revised 07103) Page 2 of 2 80 21 CheXstor" Service Description Description of Service. Company may elect to utilize Bank's CheXstor Service in connection with deposit accounts which Company maintains at Bank (each an "account"). As part of this Service, Bank will maintain microfilm records of all Items paid against the account for a period of seven years or any longer period required by applicable law ("Record Period"). Canceled Items are shredded and recycled. As part of this Service, Bank will provide a photocopy of any Item posted against the account which Company requests during the Record Period. Company may request a photocopy electronically via its personal computer or by contacting Bank at the telephone number listed on Company's account statement for such purpose. If Bank fails to provide Company with a copy of an Item Company requests during the Record Period, Bank will reimburse Company for (and Bank's liability will be limited to) any direct loss Company incurs as a result of the Item's unavailability (not to exceed the amount of the Item). Bank will require Company to substantiate any claimed loss. TM-1410 CheXstor Service Description - Revised 2/15/2002 ® 2002 Wells Fargo Banks, All rights reserved. 22 COMMERCIAL DEPOSITORY SERVICE DESCRIPTION 1. Cash Orders from Bank's Cash Vault; Cash Vault Service. Company agrees that the following procedures will govern Company's ordering of currency and coin ("cash") from Bank's cash vault and Bank's making such cash available to an armored car service acting as Company's agent ("Agent") at Bank's cash vault (collectively, the "Cash Vault Service.") 1.1 Cash Requests. Company may request in writing, telephonically by operator -assisted call or by touch-tone/automated response, or electronically via transmission, facsimile, or the Commercial Electronic Office® (CEO4� portal (each a "Cash Request") that Bank make available to Company's Agent at Bank's cash vault, in an amount designated in the Cash Request, shipments of cash (each a "Cash Shipment") in bags or other containers ("Cash Bags"). Bank is authorized to act upon any Cash Request Bank receives in accordance with this Service Description, and which Bank believes in good faith to have been made by an authorized representative of Company. Bank has no obligation whatsoever to verify, and will not be liable for its failure to verify or investigate,. any Cash Request. 1.2 Making Cash Available to Company's Agent. Bank is authorized to make Cash Shipments available to any person whom Bank in good faith believes to be Company's Agent. Bank will have no further responsibility, and Company assumes all risk of loss, for cash made available to any such person. Bank will make Cash Shipments available only at the locations, on days, and during the hours published by Bank from time to time. Bank reserves the right to suspend its Cash Vault Service at any time without notice. 1.3 Company's Authorized Representatives. Company will promptly certify to Bank the identity of: (a) the person with whom Bank is authorized to communicate regarding authorization codes or other security procedures; (b) of Company's Agent authorized to accept delivery of cash; and ( c) where applicable, the persons who are authorized users of the Cash Vault Service. Company agrees to give prior written notice to Bank of any change in the person(s) or Agent so authorized by Company. Bank will be fully protected in relying on each such notification and on the obligation of Company to promptly notify Bank of any change in the person(s) or Agent so authorized by Company 1.4 Security Procedures. For requests made in writing or by faccimile, operator -assisted telephone call or transmission, a Customer ID assigned by Bank is required. For CEO requests, a User ID assigned by Bank is required. For touch-tone/automatic response telephone requests, an Access Code is required which can be assigned either by Bank or by Company. Operator limits may also be required. It is Company's responsibility to put into place internal procedures that will minimize the risk of an unauthorized person gaining access to the Customer ID, User ID(s) and Access Code(s). Such internal procedures include, but are not limited to, requiring users to maintain such number(s) and code(s) in strict confidence. Company must notify Bank immediately in the event a breach of security is suspected. 1.5 Debit of Account. On the Business Day that Bank makes available any Cash Shipment to Company's Agent, Bank is authorized to debit Company's designated account ("Designated Account") for the aggregate amount of the shipment. Company must maintain collected balances in the Designated Account sufficient at all times to cover fully any debit. Bank has no obligation to release a requested Cash Shipment or any portion thereof to Company's Agent unless there are sufficient collected funds in the Designated Account to fully cover the amount of the Shipment at the time the Shipment is to be made available to Company's Agent. If Company fails to specify a Designated Account to Bank, Bank may debit any account which Company maintains with Bank for the amount of a requested Cash Shipment. TM-1416 Commercial Depository Sennce DesWptan (Revised 62003) Page 1 of 4 82! 23 1.6 Packing Slip: Differences in Shipment Amount. Each Cash Shipment will be accompanied by a packing slip. The packing slip will disclose the aggregate amount of the Cash Shipment, the overall number of containers included in the Cash Shipment, and the number of containers delivered to Company's Agent for transmittal to Company. With respect to any Cash Shipment made available to Company's Agent, Company will notify Bank immediately in writing of any difference between the amount specified on the packing slip for that Shipment and the amount, as counted by Company, of the Shipment. In the event that the difference cannot be resolved, Bank's count of the amount of the disputed Shipment will be conclusive and binding on Company. 2. Delivery and Processing of Deposit Shipments at Bank's Cash Vault. The following procedures will govern Company's delivery of currency, coin, checks, other negotiable instruments or food coupons (each a "Deposit Shipment") to Bank's cash vault locations, and Bank's processing of such Deposit Shipments: 2.1 Use of Agent to Deliver Shipments. Company will deliver Deposit Shipments in deposit bags or other containers ("Deposit Bags") to one of Bank's cash vaults via an armored car service acting as Company's agent ("Agent"). Company is responsible for making all arrangements with its Agent for delivery of Deposit Shipments. Bank may accept Deposit Shipments from any person Bank believes in good faith to be Company's Agent. The delivery of a Deposit Bag to Bank or Bank's receipt for it on a manifest will not be deemed proof of Bank's receipt of the contents listed on the deposit slip contained in the Deposit Bag or Company's records. Bank will have no responsibility for any Deposit Bag or its contents delivered to one of Bank's cash vaults until the Deposit Bag is accepted by Bank in accordance with its procedures and the contents of the Deposit Bag are counted by Bank. 2.2 Delivery Procedures. In delivering a Deposit Shipment to Bank's cash vault, Company agrees to comply (and to cause its Agent to comply) with the following procedures: ■ Deliver Deposit Bags only at the locations, on the days, and during the hours published by Bank from time to time; Properly endorse all checks and other negotiable instruments included in a Deposit Shipment; Use only Bank -approved Deposit Bags that are properly secured; ■ Specify the number of Deposit Bags belonging to Company which are included in the overall shipment delivered to Bank, as well as the contents of each Deposit Bag, on a delivery manifest, a copy of which Company's Agent will provide to Bank at the time of delivery; ■ Obtain the signature of Bank's employee who accepts delivery on that portion of the delivery manifest which the Agent retains; and ■ Retain a copy of the receipt or other document covering each Deposit Bag delivered by Company to its Agent for at least one year from the date of delivery to Company's Agent. Company agrees that Deposit Bags will be used only for the deposit of currency, coin, checks, other negotiable instruments or food coupons (collectively "items"), and will not be used in any unauthorized manner or for any unlawful purpose. As to any property other than items included in a Deposit Bag, Bank will not be deemed a bailee and will have no liability for any loss of or damage to such property which may occur. 2.3 Cut-off Time: Deposit to Designated Account. If a Deposit Shipment is received at one of Bank's cash vaults on a Business Day before Bank's published "cut-off time" for that cash vault, the aggregate amount of the deposits in such Shipment will be credited on that Business Day to the account with Bank specified on the deposit slip for that Shipment (the "Depository Account"). If a Deposit Shipment is received at a cash vault on a Business Day after Bank's "cut-off time," the aggregate amount of the deposits in that Shipment will be credited to the Depository Account on the next succeeding Business Day. Bank will not deposit any items received in any Deposit Shipment unless the account number of the Depository Account into which the deposit is to be made is specified on the deposit slip for that Shipment. T A#-1416 Commercial Depository SeMw Description (Revised 62003) Page 2 of 4 83 24 2.4 Processing of Deposit Shipments. Company authorizes Bank to open each Deposit Bag, count the contents, credit the amount of items to the Depository Account indicated on the deposit slip contained in the Deposit Bag and process any food coupons, all in accordance with Bank's customary procedures. All deposits are subject to verification, and Bank's count of the items will be conclusively deemed to be correct and complete for all purposes. No relationship of debtor and creditor will arise between Bank and Company until the count has been completed and the deposit credited to the Depository Account. Company acknowledges that it has had an opportunity to have Bank's applicable count and verification procedures explained to its representative and agrees that the same will be deemed commercially reasonable. Company understands that no photocopying or microfilming of items will be performed at any cash vault location. 2.5 Adjustment Procedures. If the aggregate amount of the items in any Deposit Shipment, as counted by Bank, is less than that reported on the deposit slip covering that Shipment, Bank will debit the Depository Account specified on the deposit slip by such difference and report the difference to Company. If that Depository Account has an insufficient collected and available balance to cover the debit, Bank will debit any of Company's other accounts with Bank for the difference, and Company agrees to promptly reimburse Bank for the difference (or any portion thereof) for which there are insufficient available balances in Company's accounts with Bank. If the aggregate amount of the items in any Deposit Shipment, as counted by Bank, is more than that reported on the deposit slip covering the Shipment, Bank will credit the Depository Account specified on the deposit slip for the difference and notify Company of the difference. 3. Delivery and Processing of Deposit Shipments at Bank's Night Depository Locations. The following procedures will govern Company's delivery of currency, coin, checks, other negotiable instruments or food coupons (each a "Night Deposit") to Bank's night depository locations, and Bank's processing of Night Deposits. 3.1 Night Depository Locations; Issuance of Keys. Company may make Night Deposits to its deposit account(s) with Bank by placing the items to be deposited into disposable bags furnished by Bank (each a "Night Bag") and then placing the Night Bags in the night depository receptacle ("Night Depository") at one of Bank's branches/stores (each a "Store") listed on Bank's Night Depository Set-up Form. Each office of Company listed on the Night Depository Set-up Form will receive one key to the Night Depository at a designated Store. Company will designate in writing to Bank the individuals to receive the key for each of its offices; Bank may require such individuals to sign a receipt for the keys they receive. 3.2 Contents of Night Bags: Deposit of Night Baas. Company agrees that Night Bags will be used only for the deposit of currency, coin, food coupons, checks or negotiable instruments properly endorsed by Company (collectively "items"), and will not be used in any unauthorized manner or for any unlawful purpose. As to any property other than items included in a Night Bag, Bank will not be deemed a bailee and will have no liability for any loss of or damage to such property which may occur. Each Night Bag must contain one or more deposit slips listing all the items contained in that Bag and their total dollar amount, and identifying the deposit account of Company into which the dollar amount of the deposit is to be credited (the "Designated Account"). After each Night Bag is placed in a Night Depository, the Night Depository must be securely locked. At the time each Night Bag is placed in a Night Depository the Bag must be securely closed and placed completely in the Night Depository. 3.3 Processing of Night Deposits. Bank may open each Night Bag and remove its contents without Company or any of its representatives being present. The contents of each Night Bag will be processed in accordance with Bank's standard procedures, and if placed in a Night Depository before Bank's established "cut-off time" on any Business Day, those items acceptable for deposit will be deposited into the Designated Account as of the close of business on that same Business Day. The cut-off time for deposits made through the night depository may be different from that for deposits made at the teller line. Night Deposits placed in a Night Depository after Bank's established "cut-off time" will be credited to the Designated Account on the next succeeding Business Day. Company understands and agrees that the contents of a Night Bag will not be credited to the Designated Account, nor will the relationship between Company and Bank be that of a debtor to a creditor with respect to any item in a Bag, until Bank has TM-1416 Commercial Depository Service Desaipbonon (Revised 612003) Page 3 of 4 Me 25 accepted the item for deposit into the Designated Account after counting all the items in the Bag and calculating the total dollar amount of all such items. 3.4 Counting and Adjustment Procedures. If Company's records regarding the total dollar amount of the items in any Night Bag differ from Bank's calculation of the total dollar amount of the items in the Bag, Company has the burden of proving that its records show the correct amount in the Bag or Bank's total will be accepted as final. If there is a difference between Bank's total and Company's total for the amount of items in a Night Bag (as Company's total is shown on the deposit slip or slips in the Bag), Bank will send Company a statement indicating the amount of the difference. In the event that the difference cannot be resolved, Bank's count of the dollar amount will be conclusive and binding on Company. 3.5 Claims of Lost or Stolen Items. Company will have the burden of proving the amount of any item which it claims was lost or stolen while it was at a designated Store and that disappearance of the item occurred while it was at the designated Store. Company agrees to notify Bank immediately if Company determines that any Night Bag or any item in a Night Bag has been lost or stolen while at one of Bank's Stores. Company agrees that it will have total responsibility for each Night Bag and its contents until the Bag has dropped completely into a Night Depository. 4. Special Instructions. Company may submit to Bank in writing any special handling instructions it may have in connection with cash orders or deposits of items at Bank's cash vault or night depository locations. Bank may at its option accept or reject the instructions and so notify Company. Even if accepted, Bank may stop complying with the instructions upon prior notice to Company if, in yank's opinion, continued compliance would increase Bank's costs or risks, interfere with its established or revised procedures, or diminish the efficiency of Bank's operations. Any loss attributable to increased risk resulting from a special handling procedure will be borne solely by Company. 5. Survival. Sections 1.6, 2.4, 2.5, 3.4, 3.5, and 5 will survive termination of the Service. 6. Terminology. Unless specifically defined in this Service Description, capitalized terms used in this Service Description have the meanings if any, provided in the Master Agreement for Trasury Management Services ( the "Agreement") , as amended from time to time. TM-1416 Commercial Depository Servke Description (Revised 0003) Page 4 of 4 26 POSITIVE PAY - PAY DEFAULT SERVICE DESCRIPTION 1. Description of Service. The Positive Pay check fraud reduction program (the "Service") will enable Company to instruct Bank to return counterfeit checks, checks otherwise not validly issued and certain altered checks. The Service is available only in conjunction with Bank's Account Reconciliation Plan Service, which is subject to the terms of additional Service Documentation, which Company acknowledges having accepted by using this Service. 1.1 Service Election. Company may select from three types of Positive Pay Service: 1.1.1 Perfect Presentment Positive Pays". If Company selects the Perfect Presentment Positive Pay service offered through our Greenville or Van Wert controlled disbursement endpoints, exceptions will be identified on the day of presentment prior to posting and items that can be corrected, such as encoding errors, will be corrected, so that only unresolved exceptions are reported to Company. 1.1.2 Positive Pay. If Company selects the Positive Pay service, its transactions will be compared against Company's issue file after items have posted, all exception items will be reviewed, and items that can be corrected, such as encoding errors, will be reversed and reposted on the following Business Day, so that only unresolved exceptions are reported to Company. 1.1.3 Basic Positive Pay. If Company selects the Basic Positive Pay service, it will receive exceptions reports that contain all exception items, including encoding errors. 1.2 Teller Payee Validation Option. Company may elect the Teller Payee Validation option with any Positive Pay service. The Teller Payee Validation option allows Company to provide a payee name, in addition to date, serial number and amount, for each check listed on its issue file. Prior to encashment. Bank will compare the payee name appearing on the check presented at a Bank store to the payee name on Company's issue file. Teller Payee Validation may be performed only on checks presented to Bank's stores for encashment and does not include deposited items. Company's exception report will not include information about checks presented at Bank stores. If no payee name is provided in Company's issue file, Bank will perform the Positive Pay Service based solely on the basis of serial number and amount listed on the issue file. 2. Check Issue Data. Company will provide Bank with the complete issue date, serial number, and amount and, if the Teller Payee Validation option has been selected, the payee, of each check issued (the "Check Issue Data") on the transaction account(s) at Bank separately designated in the Positive Pay Service Set-up Form or otherwise in writing from time to time (the "Account"). The Check Issue Data will be provided to Bank in the format and medium, by the deadline(s), and at the place(s) specified by Bank in the Positive Pay Service Set-up Form or otherwise in writing to Company. On each Business Day, the Check Issue Data, as Bank has recorded it up to and including that Business Day, will be electronically matched to checks presented against the Account. The Check Issue Data will also be provided to Bank's stores to assist its tellers in making decisions about cashing checks. In performing the Service, Bank will be required to use only the Check Issue Data that Company has provided to Bank in the format and medium, by the deadline(s), and at the place(s) specified by Bank. Company assumes full responsibility for providing timely and accurate Check Issue Data to Bank. 3. Payment of Matching Checks. If a check presented against the Account matches the Check Issue Data Company has given Bank (a "matching check"), Bank will make final payment and charge it to the Account. T91418 Pos v+e Pay Service Desc►ipM7 (Pay Wad) Page 1 of 3 (Revised 52003) 27 4. Exceptions Report. Company will be informed of the check number and amount of each check which is not a matching check in a report (the "Image Positive Pay Exceptions Report") which Company must access through one of the information reporting systems now or hereafter offered by Bank. If Company is receiving the Basic Positive Pay Service, the Image Positive Pay Exceptions Report will also include checks which are not matching checks because of encoding errors. 5. Return Instructions. On the Business Day on which Company is informed that a check is not a matching check, Company may instruct Bank through one of the information reporting systems now or hereafter offered by the Bank to pay or return the check, identifying the check by complete serial number and amount, and Bank will do so if Bank receives the instruction at the place(s) and before the deadline(s) specified by Bank on the Image Positive Pay Exceptions Report. Company will make the pay or return decision based on the Magnetic Ink Character Recognition information provided. If requested by Company, Bank will use reasonable efforts to provide an image of a check, but will have no liability if it is unable to do so prior to the deadline for returning the check. 6. Payment of Checks. If Company misses the deadline for requesting the return of a check, Bank will make final payment of the check and charge it to the Account. 7. Greenville Holdover Exceptions. In the event that Company is receiving the Perfect Presentment Positive Pay Service with Controlled Disbursement and a check is processed by Greenville in the normal course of business for provisional settlement after the cutoff time for preparation of Greenville's Final Presentment Detail File but before the end of Greenville's banking day, Greenville will transmit a holdover file (the "File") to Bank on the morning of Greenville's next business day. On each Business Day, the Check Issue Data, as Bank has recorded it up to and including that Business Day, will be electronically matched to checks presented in the File. Bank will pay each check that is not a matching check if it is for an amount less than the threshold set by Bank from time to time. Bank will make one attempt to contact Company by telephone at the telephone number Bank has for Company in its files, to notify Company of each check that is not a matching check and is in an amount equal to or greater than the threshold. Company will contact Bank at Bank's phone number left in the telephone message prior to the cutoff time set by Bank from time to time if Company does not want such a check paid. 8. Limitation of Liability and Indemnification. Each check Bank returns in accordance with this Service Description will be deemed not to be properly payable. Each matching or other check Company has authorized Bank to pay in accordance with this Service Description will be paid without Bank performing its customary (or any other) check verification procedures, and Bank will have no liability whatsoever for paying the check if its serial number, amount, or, if the Teller Payee Validation option has been selected, payee name, is altered, or if it is counterfeit, bears a forged or unauthorized signature or was otherwise not validly issued. Company (i) agrees to indemnify and hold Bank harmless from any losses or liabilities it may suffer or incur as a result of its return of a matching or other check at Company's instruction, and (ii) releases and forever discharges Bank, and its parent, subsidiaries, affiliates, successors, officers, directors, employees and agents, from any and all manner of action or actions, suits, claims, damages, judgments, levies, executions, expenses, costs, interest, attorney's fees and legal expenses, whether known or unknown, liquidated or unliquidated, fixed, contingent, direct or indirect, which Company has, or ever can, may or shall have or claim to have against Bank regarding or relating to the payment or return of any check pursuant to the provisions of this Service Description. 9. Stop Payment and Return Decisions. The Service will not be used as a substitute for Bank's stop payment service. Company will follow Bank's standard stop payment procedures if it desires to return a matching or other check that was validly issued. Nothing in this Service Description will limit Company's right to stop payment on any matching or other check or Bank's right to return any matching or other check that Company has authorized Bank to pay in accordance with this Service Description if Bank determines in its sole discretion that the check is not properly payable for any reason (without Bank's agreeing to, or being required to, make such determination in any circumstance) or that there are insufficient collected and available funds to pay it in the Account. 10. Termination. The Service will automatically terminate if the Account is closed for any reason. Termination of the Service will not terminate Company's or Bank's rights or obligations under this 7M-1418 Positive Pay Senrice Desc dption (Pay Default) (Revised 62003) 87 Page 2 0,(3 a-01 Service Description or the Service Documentation with respect to events or actions which occurred before such termination. 11. Survival. Section 8 will survive termination of the Service. TM-1418 Positive Pay Se►vke Desc dpdon (Pay Default) (Revised 5512003) Page 3 of 3 29 ACH SERVICES DESCRIPTION 1. The ACH Services (the "Services"). The Services, one or more of which have been separately designated by Company in the ACH Services Set-up Form delivered to Bank, are generally described as follows: 1.1. Origination Services. 1.1.1. Direct ACH Origination. The Direct ACH Origination Service will enable Company, using Company's software, to create entries and files in standard ACH format and send them electronically to Bank for transmission in accordance with the Rules (see Subsection 4.1). 1.1.2. Third Party ACH Origination. ation. The Third Party ACH Origination Service ;will enable Company's agent, using that agent's software, to create entries and files in standard ACH format and send them electronically to Bank for transmission in accordance with the Rules (see Subsection 4.1). 1.1.3. ACH Express. The ACH Express Service will enable Company to create entries and files in standard ACH format at its own personal computer and send them electronically to Bank for transmission in accordance with the Rules (see Subsection 4.1). All files transmitted through the ACH Express Service must be created and transmitted to Bank using software specified by Bank which is the original, confidential, valuable and proprietary property of Politzer & Haney (the "Software"), which has licensed it to Bank, or to an affiliate of Bank, with the right to sublicense it to Company. Bank grants Company a non-exclusive and non -assignable sublicense to use the Software solely for the purpose of initiating entries in accordance with the provisions of the license (a copy of which is available to Company on request), this ACH Services Description and the other Service Documentation. This sublicense will terminate upon the earlier to occur of termination of the license or termination of this Service. Upon termination, Company will promptly return all copies of the Software to Bank. 1.1.3.1. IN NO EVENT WILL BANK BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA, PROGRAMS, PROFITS (ANTICIPATED, ACTUAL OR OTHERWISE), OR BENEFITS RESULTING FROM USE OF, RELIANCE UPON, OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF WHETHER OR NOT BANK HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION. IN NO EVENT WILL BANK'S CUMULATIVE LIABILITY TO COMPANY IN RELATION TO THIS SUBLICENSE EXCEED A SUM EQUAL TO THE TOTAL SUBLICENSE FEE ACTUALLY PAID TO BANK. COMPANY ACKNOWLEDGES THAT NEITHER POLITZER AND HANEY NOR BANK MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE. 1.1.3.2. Company agrees that, if required by law, the Software will not be exported directly or indirectly, separately or as a part of a system, without first obtaining a license from the United States Department of Commerce or any other appropriate agency of the United States Government. 1.1.3.3. Bank may make copies of any enhanced versions of the Software available to Company at such price as Bank will determine at its sole discretion. Company acknowledges that Politzer and Haney has the right to enforce the terms of the license directly against Company in the event of a breach of its terms by Company. Company may not assign the license or this sublicense to anyone. Bank may discontinue to provide to Company any maintenance or other support with respect to the Software which it now, or hereafter provides upon prior written notice to Company. TM-1423 ACH Services Description — Revised 7/2002 page 1 of 6 89 30 1.1.3.4. Company will not publish, disclose, display or otherwise make the Software available to others. Company will secure and protect the Software in a manner consistent with the protection of its own proprietary information and take appropriate action by instruction or agreement with its employees who are permitted access to the Software to ensure such protection. Company acknowledges that, except as specifically permitted in writing by Bank, Company will not provide, transmit, further sublicense, transfer or otherwise distribute the Software or any part of it to a third party, or copy, reverse engineer, reverse compile, or reverse assemble, modify or alter the Software or any part Of it. 1.1.4. International ACH. The International ACH Service will enable Company to create entries and files using a modified NACHA format for the purpose of debiting or crediting selected country accounts held outside the United States and send them electronically to Bank for transmission in accordance with .the Rules (see Subsection 4.1), which for purposes of International ACH shall also include the International ACH Origination Reference Guide, the Cross -Border Payment Operating Rules, and any other applicable ACH rules, including those promulgated by a local ACH association or governmental body ("Other ACH Rules." ) For purposes of originating credits and debits to a USD or CAD denominated account located in Canada, the Other ACH Rules shall include the Rules of the Canadian Payments Association (the "CPA Rules.") 1.1.4.1. With respect to credit entries, Bank will convert the amount to be transferred from United States Dollars to the currency of a designated foreign government or intergovernmental organization ("Foreign Currency") at Bank's buying rate for exchange in effect on the date the entry is transmitted by Bank to the ACH or gateway operator. If the financial institution designated to receive the funds does not pay the beneficiary specified in the entry, or if the entry is subsequently determined to be erroneous, Bank will not be liable for a sum in excess of the value of the entry after it has been converted from Foreign Currency to United States Dollars at Bank's selling rate for exchange at such time as the entry is returned to Bank. 1.1.4.2. With respect to debit entries (where permitted), Bank will convert the amount of each Entry from Foreign Currency at Bank's selling rate for exchange in effect on the settlement date of the entry. If the financial institution designated to receive the entry subsequently returns it, Bank may charge the Account (see Subsection 4.2) for the sum equal to the value of the returned entry as measured in Foreign Currency at Bank's buying rate for exchange at such time as the entry is returned to Bank. 1.1.4.2.1. Before Company may intiate any debit entries that settle to a USD or CAD denominated account located in Canada , it will be required to: (a) sign and return to Bank the Payee Letter of Undertaking for Canadian Pre -Authorized Debits provided by Bank; and (b) collect from each payor of a debit a debit authorization in a form which complies with the CPA Rules. Company acknowledges that Bank has provided it with a means for accessing the CPA Rules, including Rule H1. 1.1.4.3. Bank will not be liable for any failure or delay by a gateway operator, any intermediary financial institutions, or the receiving depository financial institution in the designated foreign country in processing or failing to process any entry Bank transmits, or for acts or omissions by a third party, including by way of example and not by way of limitation, the delay or failure of any third party to process, credit or debit any entry. 1.1.4.4. Company acknowledges that the ACH system may not be used to conduct any transaction in violation of Federal law. Company expressly warrants that no Entry delivered to Bank will, if acepted by Bank, cause Bank to be in violation of any sanction administered by the Office of Foreign Assets Control 1.1.5. Internet ACH. Internet ACH will enable Company to originate ACH transactions via the Internet. Company will provide for its own access to the Internet through either an Internet service provider or through a local area network connection to an Internet service provider. If Company's service provider is unable to provide access at any time, Company will not be able to access the Service. After Company has successfully completed the authentication process and obtained access to the Service, TM-1423 ACH Services Description — Revised 7/2002 page 2 of 6 90 31 Company will build a database of payment transactions. Company's database and applications will reside on a Bank owned and managed server. Company will, from that database, create a batch. Company will be responsible for verifying its batch totals and settlement date. Once verified, Company will only need to press a button to "release" that batch to Bank for processing. Bank will create a file of released batches in standard ACH format and process the file in accordance with the Rules (see Subsection 4.1). 1.2. Receiving Services. 1.2.1. ACH Transaction Filter. The ACH Transaction Filter Service will enable Company to better protect its accounts at Bank from unauthorized debit entries. Bank offers three options that monitor the debit entries posted to accounts. Company has elected one of the following options on the ACH Services Set-up Form: ■ to have all debit entries automatically blocked from its account(s); ■ to have all debit entries presented to it for review and its request for further action; or ■ to authorize specific debit entries to be posted to its account(s). If Company has chosen the review option (see the middle bullet above), it will immediately review each Intercept Report and notify Bank in the manner and by the applicable cutoff time as required in the Guide of any debit entry listed on the Intercept Report which is unauthorized. If it does not, Bank will be entitled to post the debit entry to Company's account. 1.2.2. ACH Investment Fund. -The ACH Investment Fund Service will enable Company to offer direct deposit or direct payment arrangements to its customers. Bank will prepare detailed transaction information which it will send to Company in one file each morning on a business day. Company has elected either individual postings or a consolidated settlement of transactions on the ACH Services Set- up Form. 2. Provisions Applicable Only to Origination Services. 2.1. Security Procedure. Bank will verify that Company has authorized, canceled or amended an entry that constitutes a payment order (as that term is defined in Section 4A-103(a)(1) of the Uniform Commercial Code, as amended from time to time) solely by means of the security procedure separately agreed to in writing by Bank and Company. The security procedure will not be used to detect errors. Company will promptly notify Bank in writing of the identity of each person authorized to receive information regarding the security procedure (each singly or in the aggregate, an "authorized person") and of any change in an authorized person. Bank will have a reasonable time after receipt of a notice to act on it. Company will establish and maintain effective internal procedures to safeguard against unauthorized transmissions and batch releases. Company warrants that no individual will be allowed to initiate transfers or batch releases in the absence of proper supervision and safeguards, and Company will take reasonable steps to maintain the confidentiality of the security procedure and any passwords, codes, security devices and related instructions provided by Bank. If Company believes or suspects that any such information or instructions have been known or accessed by unauthorized persons, Company will notify Bank immediately followed by written confirmation. Bank will have a reasonable time after receipt of notice to act on it. If a payment order, or a request for cancellation or amendment of a payment order, received by Bank purports to have been transmitted or authorized by Company, it will be deemed effective as Company's payment order or request and Company will be obligated to pay Bank the amount of the payment order even though the payment order or request was not authorized by Company, provided Bank accepted the payment order in good faith and acted in compliance with the security procedure. If a payment order, or request for cancellation or amendment of a payment order, received by Bank was authorized by Company, Company will pay Bank the amount of the payment order, whether or not Bank complied with the security procedure with respect to that payment order. 2.2. Rejected Entries. Without limiting Bank's general right to reject entries or files under the Rules, Bank may reject any entry or file which does not comply with the requirements in this Service TM-1423 ACH Services Description — Revised 7/2002 page 3 of 6 91 32 Description, the Rules or the security procedure, or with respect to which the Account (see Subsection 4.2) does not contain sufficient available funds to pay for the entry. Bank may reject an entry received for credit to an account maintained at Bank (an "on -us entry") for any reason for which an entry may be returned under the Rules. If an entry or file is rejected, Bank will make a reasonable effort to notify Company promptly so that Company may repair and retransmit the entry or file. A notice of rejection will be effective when given. Bank will have no liability to Company by reason of the rejection of any entry or file, the fact that notice is not given at an earlier time than that provided for in this Service Description or for any loss resulting from Bank's failure to provide notice. If Company requests that Bank repair an entry or file and Bank endeavors to do so, Bank will not be liable for its failure to make the requested repair. Company will pay all charges and expenses Bank incurs in connection with file repairs. 2.3. Payment Obligations: Settlement. Company will maintain in the Account (see Subsection 4.2) as of the applicable settlement date and time immediately available funds sufficient to cover all credit entries Company originates through Bank. If requested, the funds will be prepaid to Bank before Bank delivers the credit entries to the ACH or gateway operator. Company's obligation to pay Bank for each credit entry matures at the time Bank transmits or otherwise delivers the credit entry to the ACH or gateway operator and is unaffected by termination of the Services. Bank is authorized to debit the Account for the total amount of all credit entries on or before the applicable settlement date. Bank is not, however, intending to make a loan to Company. Notwithstanding any other provision of this Service Description or the other Service Documentation, Bank is authorized upon notice to Company to place a hold on an equal amount of funds in the Account or in any other accounts at Bank or any affiliate of Bank owned in whole or in part by Company, or to take any other action it deems appropriate to ensure that it receives payment. Bank may charge the Account or any other Company account at Bank or any affiliate of Bank for any debit, correcting or reversing entry which is later returned to Bank. Bank may also set off against any amount it or an affiliate of Bank owes to Company in order to obtain payment of Company's obligation as set forth in this Service Description. 2.4. Cancellation or Amendment. Company will have no right to cancel or amend any entry or file after its receipt by Bank. However, if the request complies with the security procedure Bank may use reasonable efforts to act on it prior to transmitting the entry or file to the ACH or gateway operator or, in the case of an on -us entry, prior to crediting a receiver's account, but will have no liability if the cancellation or amendment is not effected. Company will reimburse Bank for any expenses, losses or damages Bank may incur in effecting or attempting to effect Company's request. 2.5. Returned Entries. Except for an entry or file retransmitted by Company in accordance with the requirements of this Service Description, Bank will have no obligation to retransmit a returned entry or file to the ACH or gateway operator if Bank complied with the terms of this Service Description with respect to the original entry or file. 2.6. Preparation of Entries and Files; Processing Schedules: Reconstruction. Each entry and file delivered to Bank, including any amendments, cancellations, reversals, corrections or changes related to it will be prepared in accordance with the Rules, the Service Documentation and Bank's then current instructions. Bank will process each entry or file in accordance with its then current processing schedule, provided (i) the entries or files are received by Bank's applicable cut-off time on a business day and (ii) the ACH is open for business on that business day. Entries or files will be deemed received by Bank, in the case of transmittal by tape, when received by Bank at the location stated in the ACH Services Set-up Form, and in the case of transmittal by electronic transmission, when the transmission (and compliance with any applicable security procedure) is completed. If Bank receives an entry, file or batch release after its processing deadline, Bank will not be responsible for failure to meet the deadlines of the ACH operator for processing and transmitting the entries or files. If any of the requirements of clause (i) or (ii) of this Subsection 2.6. are not met, Bank will use reasonable efforts to transmit the entries or files to the ACH by the next applicable deadline of the ACH which is on a business day on which the ACH is open for business. Except as provided in Subsection 2.4, in the case of an on -us entry, Bank will credit the receiver's account in the amount of the entry on the Effective Entry Date contained in any instructions accompanying the entry, provided the requirements set forth in clauses (1) and (ii) of this Subsection 2.6 are met. If either of those requirements is not met, Bank will use reasonable efforts to credit the receiver's account in the amount of the entry no later than the next business day following the Effective Entry Date. Company will retain copies of each entry and file delivered to Bank or will be able to fully and TM-1423 ACH Services Description — Revised 7/2002 page 4 of 6 92 33 completely reconstruct each entry and file for a period of five (5) business days after the applicable settlement date and will submit the copy or reconstructed entry or file to Bank upon request. 2.7 Effective EnLry Date. The instructions accompanying an entry or file will specify a business day on which the entry or file is to be delivered to the ACH or gateway operator (the "Effective Entry Date"). 3. Provisions Applicable Only to Receiving Services. 3.1. Notice to Receiver. Unless required by applicable law, Bank will have no obligation to notify Company of the receipt of an entry, other than by showing it on the periodic statement for the affected deposit account (see Subsection 4.2). 4. Provisions Applicable to Both Origination and Receiving Services. 4.1. Rules. Origination, receipt, return, adjustment, correction, cancellation, amendment and transmission of ACH entries must be in accordance with the Operating Rules of the ACH in which Bank is a participant and, with respect to credit entries which constitute payment orders, Article 4A of the Uniform Commercial Code as adopted in the state whose law governs the Agreement, as both are varied by this Service Description and the other Service Documentation, and as both are amended from time to time (the "Rules"). Company acknowledges that it has had an opportunity to review and agrees to comply with and be bound by the Rules. Company will be responsible for promptly obtaining all future amendments. 4.2. Account. Company will maintain at least one deposit account with Bank as designated in the ACH Services Set-up Form (the "Account"). 4.3. Provisional Credit. Any credit Bank gives to Company is provisional until Bank receives final settlement and the entry for which credit was given is deemed to be finally paid as provided in this Service Description, the Rules and all laws, rules and regulations governing any aspect of the entry, including the laws, rules and regulations of the country to which the entry was sent. If Bank does not receive final settlement, it is entitled to a refund from the credited person and Company will not be deemed to have paid that person. 4.4. Reversing Entries. At Company's request, Bank will make a reasonable effort to reverse an entry, but will have no responsibility for the failure of any other person or entity to honor Company's request. 4.5. Warranties. Company acknowledges that under the Rules, Bank makes certain warranties with respect to each entry. Company agrees to reimburse Bank for any loss Bank incurs, including its reasonable attorneys' fees and legal expenses, as the result of a breach of a warranty made by Bank unless the breach resulted solely from Bank's own negligence or intentional misconduct. 4.6. Indemnification. Company acknowledges that under the Rules, Bank indemnifies certain persons. Company agrees to reimburse Bank for any loss Bank incurs, including its reasonable attorneys' fees and legal expenses, as the result of the enforcement of an indemnity, unless enforcement resulted solely from Bank's own negligence or intentional misconduct. 4.7. Identify Authorized Persons. Any person identified by Company in the ACH Services Set-up Form or any certification, notice or other communication delivered to Bank may receive information, communications and notices regarding the Services, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Services. If the identity of such a person changes Company will promptly notify Bank in writing. Bank will have a reasonable time after receipt of a certification, notice or other communication to act on it. 4.8. Agents. If Company elects to use an agent with respect to the Services, Company, and not Bank, will be solely responsible for the acts and omissions of Company's agent, and its agent will, TM-1423 ACH Services Description — Revised 7/2002 page 5 of 6 93 34 without limitation, be authorized to originate, receive, return, adjust, correct, cancel, amend and transmit entries and files, and select the security procedure used to authenticate entries. Company agrees that any security procedure selected by its Agent will be treated as commercially reasonable for all purposes. Bank may rely on instructions it receives from Company's agent and need not make any inquiries to verify or confirm that instructions are within the scope of the agency. 4.8.1. Company will certify each agent's identity and any changes to Bank in writing. Bank will be fully protected in relying on each certificate and on the obligation of Company to promptly certify any change in the agents so certified. Bank will have a reasonable time after receipt of a certification or change to act on it. 4.8.2. Bank may at any time use agents and/or independent contractors to process entries or provide all or any other portion of the Services, and will be solely responsible for the acts and omissions of its agents and independent contractors. However, Bank will not be deemed to be the agent of, nor responsible for the acts or omissions of any other person, including without limitation any Federal Reserve Bank, ACH, Internet service provider or transmission or communications facility, any receiver or receiving depository financial institution (including without limitation the return of an entry by such receiver or receiving depository financial institution), and no such person will be deemed Bank's agent. 4.9. Software. Hardware and Backup Requirements. Subject to Paragraph 1.1.3, Company will, at its own cost and expense, obtain, install and, at all times during its utilization of the Services, maintain in good working order all software, hardware and other equipment necessary for it to perform in accordance with this Service Description. Except with respect to the Internet ACH Service, Company agrees to implement, on a periodic basis not less than weekly, backup -measures, including, among other things, copying onto a diskette(s) each week's current data base files. With respect to the Internet ACH Service, Bank will perform data base backup on a scheduled basis. In the event of any failure of such software, hardware or other equipment, Company will deliver to Bank all data which it would otherwise have provided that is necessary for Bank to perform Bank's obligations in connection with the Services. 4.10. Survival. Subsections 2.3, 4.3, 4.5, 4.6 and 4.10 will survive termination of the Services. 4.11. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in the Rules, as amended from time to time. As used in this Service Description, "negligence" will mean a material failure to use that degree of care that would be used under the same or similar circumstances by a national banking association having substantially the same volume and type of ACH activity and approximately the same number, size and diversity of ACH customers. TM-1423 ACH Services Description — Revised 7/2002 page 6 of 6 94 35 ACH Services Security Procedure Agreement Bank and Company have entered into a Master Agreement for Treasury Management Services (the "Agreement") which governs the ACH services to be provided by Bank. Bank and Company agree: 1. Security Procedure Selection. The Token Card/Passcode - File Transmission/Batch Release security proce- dure described below is required for the product known as the Internet ACH Service. If Company uses the Internet to access ACH services, but does not use the Internet ACH Service, the Secure File Transport securi- ty procedure is required. For each of the other ACH services, Company acknowledges that Bank offers each of the security procedures described below for the purpose of verifying the authenticity of an instruction to originate an ACH credit or debit entry (a "payment order") received by Bank in the name of Company. Company refuses to have its payment orders verified by any security procedure other than the security pro- cedure it has expressly designated. Company has reviewed various security procedures including the follow- ing and has determined that the security procedure designated in the Acceptance of Services best meets its requirements, given the size, type and frequency of the payment orders it will issue to Bank: Token Card/Passcode - File Transmission/Batch Release (for Internet ACH Service) - This procedure com- bines a token card with a personal identification number (PIN). A token card will be assigned to each Operator (as defined below). The PIN is set by each Operator individually upon first logon. The token card generates a random and unique security code every minute. The code combines with the PIN to pro- vide a unique password every minute. The password must be presented with the ACH transmission or batch release authorization and is used by Bank to authenticate the identity of Company and/or the person originating the transmission or release. Bank will verify each request to access the Service by determining if the Passcode is valid for the associated Operator ID and if the Operator ID used by the person requesting access is the Operator ID of one of the persons Company has designated as being authorized such access. Bank has no obligation to confirm in any other way the identity of any person making such a request. If Company has requested self -administration of Company's access to the CEO, Bank will assign a Company ID code and will set up Company's first Company administrator ("FCA") by assigning a personal ID code and password to be used when the FCA first enters the CEO. The FCA can then set up additional Company administrators (who will have access to all services Company receive through the CEO), administrators and users. A User is an Operator. (Administrators and Users will have access only to the specific service(s) they are set up to access.) Any Company administrator: (a) can set up additional Company administrators, administrators and users, issuing them a password that will be changed upon first entry to the CEO and a personal ID code; (b) can reset passwords for all services; and (c) shall be required to immediately disable access to the CEO for any Company administrator, administrator or user who ceases to be a Company administrator, administrator or user. Administrators can set up additional administrators and users and reset passwords for the specific service(s) they are set up to access. Bank will not know the password of any Company administrator, administrator, or user except the initial password assigned to the FCA. Bank will give the Company administrators and the administrators a token card and a personal identification number ("PIN"), known only by them and Bank. Self -administration will allow a Company administrator or an administrator to initiate a request to Bank to reassign an existing token card to another Company administrator, administrator or user. TM-1425 ACH Services Security Procedure Agreement - Revised 6/19/2002 Page 1 of 2 95 36 If Company has requested self -administration with dual control, Bank will assign a Company ID code and will set up Company's first two Company administrators (the FCAs) by assigning each a personal ID code and password to be used when each first enters the CEO. All actions which can be performed by a Company administrator or administra- tor in the preceding paragraph will require that one Company administrator or administrator with appropriate func- tion access to initiate the action and a second Company administrator or administrator with appropriate function access to approve the action. If Company does not have self -administration, Company's Security Administrator will determine which of Company's employees will be authorized to create/modify and to verify ACH transfer requests (each, an "Operator") and the dol- lar limits per transaction and per day assigned to each Operator and will communicate this information to Bank. Bank will set up the Operators by assigning each an Operator ID. The Security Administrator will also be responsible for communicating any changes in Operators or in Operator limits or authorization(s) to Bank and promptly reporting any lost or stolen token cards. Secure File Transmit_- This procedure uses 128-bit SSL encryption and requires the use of a transmission ID, a transmission password, and a digital certificate. Password - File Transmission - This procedure requires that a unique eight -digit code separately agreed upon in writing by Company and Bank be presented with Company's ACH file. Company may be required to change the code on a regular basis. Password - Taped or Written Instructions - This procedure requires that Company present taped or written instructions in a tamper proof container accompanied by a unique code separately agreed upon in writing by Company and Bank. 2. Security Procedure Protection. Company and Bank will preserve the confidentiality of the security proce- dure. If Company becomes aware of a breach, or suspects that a breach may occur, it will immediately noti- fy Bank in a matter affording Bank a reasonable opportunity to act on the information. 3. Company Bound by Payment Orders. Company will be bound by any payment order, whether or not authorized, issued in its name and accepted by Bank in compliance with the designated security procedure. 4. inconsistency of Name and Number. If a payment order describes the receiver inconsistently by name and account number (i) payment may be made on the basis of the account number even if it identifies a person different from the named receiver (ii) Bank may in its sole discretion refuse to accept or may return the pay- ment order. If a payment order describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the finan- cial institution. If a payment order identifies a non-existent or unidentifiable person or account as the receiver or the receiver's account, Bank may in its sole discretion refuse to accept or may return the payment order. S. Terminology. Unless specifically defined in this Security Procedure Agreement, terms used herein have the meanings, if any, provided in the Agreement and the other Service Documentation, as each may be amended from time to time. ACH Services Security Procedure Agreement ® 2002 Wells Fargo Banks. All rights reserved. Page 2 of 2 37 COMMERCIAL ELECTRONIC OFFICES" ("CEO") SERVICE DESCRIPTION 1. Description of the CEO Service. The CEO Service will allow Company to enter Bank's CEO website and access those treasury management services offered through the CEO (each, a "Service") for which Company has enrolled. Company agrees to use the CEO only as provided in the Service Documentation (which term includes notices and information posted on the CEO website.) Persons entering the CEO for Company (the "Users") must also accept the Terms of Use for the CEO which appears on the CEO when a User initially logs on. Before Company may use a Service, Company must sign or accept the Service Documentation for that Service. 2. Security Procedures. 2.1 Unless Company requests self -administration of its access to the CEO, Bank will give each User an ID code and a password to be used when the User first enters the CEO. (Self -administration may not be available for all services offered through the CEO.) Bank will also assign a Company ID code for use each time a User enters the CEO. Although the Company ID code and the ID codes for each User will remain the same for each entry into the CEO, the password Bank assigns to each User must be changed to a new password the User selects when the User first enters the CEO. Bank will not know the new passwords or any subsequent passwords selected by the Users. 2.2 If Company requests self -administration of its access to the CEO, Bank will assign a Company ID code and will set up the first Company administrator ("FCA„) by assigning a personal ID code and password to be used when the FCA first enters the CEO. The FCA can then set up additional Company administrators (who will have access to all Services Company receives through the CEO) and administrators or Users (each of whom will have access only to the specific Service(s) they are set up to access.) Any Company administrator: (a) can set up additional Company administrators, administrators and Users, issuing them a password and a personal ID code; (b) can reset passwords for all Services; and (c) shall be required to immediately disable access to the CEO for any Company administrator, administrator or User who ceases to be a Company administrator, administrator or User. Administrators can set up additional administrators and Users and reset passwords for the specific Service(s) they are set up to access. The Company ID and each personal ID code will remain the same for each entry into the CEO, but the password assigned to each Company administrator, administrator, and User must be changed to a new password they select when they first enter the CEO. Bank will not know the password of any Company administrator, administrator, or User except the initial password assigned to the FCA. Company's administrative contact with respect to the CEO will be the FCA. 2.3 If Company requests self -administration of Company's access to the CEO, Bank will give the Company administrators and the administrators a token card and a personal identification number ("PIN"), known only by them and Bank, to use each time they give personal ID codes and passwords to Company administrators, administrators, and Users. Token cards and PINs will be given to Users by Bank only if they have access to a Service which requires a token card for access. The token card generates a random and unique security code for each token card everryy minute. The code combines with the PIN to provide a unique password (the "Passcode") every minute. 2.4 Company will be able to manage and control who in Company has access to the CEO and the Services by the ID codes, passwords, token cards, PINs, and Passcodes. It is Company's responsibility to ensure that the ID codes, passwords, token cards, PINs, and Passcodes are known to, and used only by, persons who have been properly authorized by Company to access the CEO and use the Services through the CEO. TM-1426 Commercial Electronic Office Service Description (Rev. 9/02 ) Page 1 of 3 97 38 2.5 FAILURE TO. PROTECT ID CODES, PASSWORDS, TOKEN CARDS, PINs, OR PASSCODES MAY ALLOW AN UNAUTHORIZED PARTY TO (1) USE THE SERVICES, 2 CORRECT, CHANGE, VERIFY, OR SEND DATA USED WITH THE SERVICES, 3 SEND INFORMATION AND COMMUNICATIONS TO, OR RECEIVE INFORMATI N AND COMMUNICATIONS FROM, BANK OR (4) ACCESS COMPANY'S ELECTRONIC COMMUNICATIONS AND FINANCIAL DATA. ALL ENTRIES INTO THE CEO, ALL COMMUNICATIONS SENT, AND ALL USES OF THE SERVICES, THROUGH COMPANY'S ID CODES, PASSWORDS, TOKEN CARDS, PINs, OR PASSCODES WILL BE DEEMED TO BE ENTRIES, COMMUNICATIONS, AND USES AUTHORIZED BY COMPANY AND BE BINDING UPON COMPANY. COMPANY ASSUMES THE ENTIRE RISK FOR THE FRAUDULENT OR UNAUTHORIZED USE OF ALL ID CODES, PASSWORDS, TOKEN CARDS, PINs, AND PASSCODES. Company acknowledges the importance of developing internal procedures to limit such risk, which procedures will include, at a minimum, (a) if Company is not on self -administration, notifying Bank immediately when any new person becomes a User or when any existing User stops being a User, (b) if Company is on self - administration, disabling access to the CEO immediately for each Company administrator, administrator, and User who stops being a Company administrator, administrator, or User, and (c) not keeping, in any form or in any place, lists of ID codes, passwords, PINs or Passcodes. 2.6 Company agrees to notify Bank immediately when Company becomes aware of any loss or theft of, or any unauthorized use of, any ID codes, passwords, token cards, Pins, or Passcodes. Company also agrees to notify Bank immediately when Company becomes aware of any unauthorized entry into the CEO. 3. Financial Information. Financial market data, quotes, news, research, and other financial information developed by third parties and transmitted to Bank (collectively, "Financial Information") will be available at the CEO. The posting of any Financial Information or any other information or data at the CEO will not be a recommendation by Bank that any particular Service or transaction is suitable or appropriate for Company or that Company should receive or in any way use any Service. Bank does not guarantee the accuracy, completeness, timeliness or correct sequencing of any Financial Information, nor is it in any way responsible for the actions or omissions of the third parties developing or transmitting Financial Information or for any decision made or action taken by Company in reliance upon any Financial Information. 4. Use of Certain Software to Access the CEO. In using the CEO, Company will be sending financial and other data as well as electronic messages directly to Bank through the Internet. Company acknowledges that when the Internet, or any other electronic communications facilities, are used to transmit or receive data and messages, the data and the messages may be accessed by unauthorized third parties. To reduce the likelihood of such third party access, Company agrees to transmit and receive data and messages through the CEO using only software, including, but not limited to, browser software, or other access devices that support the Secure Socket Layer (SSL) protocol- or other protocols required by, or acceptable to, Bank, and to follow the Bank log -on procedures that support such protocols. 5. Disclaimers. Bank will not be Company's advisor or fiduciary with respect to this Agreement or any Service. 6. Limitation of Liabilitv. Bank will not be liable to Company for any direct or indirect damages or losses suffered or incurred by Company in connection with the CEO, any of the Services, any Financial Information, any other information or data Company receives through the CEO, or any failure to provide, or delay in providing, access to the CEO, any Service, or any Financial Information, except to the extent any Service Documentation specifically provides otherwise and except to the extent such damages or losses arise directly from the negligence or willful misconduct of Bank. TM-1426 Commercial Electronic Office Service Description (Rev. 9/02 ) Page 2 of 3 7. Restricting or Terminatina Access to the CEO. In addition to, and not in substitution for, any provision in this Agreement or any of the other Service Documentation, Company understands and agrees that Bank will not in any way be obligated to permit Users access to any Financial Information or the use of any Service through the CEO if (a) such use or access is not in accordance with any term or condition applicable to the Service or the CEO or to the information to be accessed, (b) such use or access is not permitted by any state or federal law or regulation, (c) Bank has reasonable cause to believe that such use or access may not be authorized by Company or any third person whose authorization Bank believes is necessary for such use or access, or - (d) Bank has reasonable cause to deny such use or access for Company's protection or the protection of Bank . If any Service cannot be used through the CEO, Bank will make reasonable efforts for such Service to be used by other means. Bank shall not have liability to Company for any losses or damages Company may suffer or incur as a result of any such termination. 8. Survival. Sections 3,6,7 and 8 will survive termination of the Service. 9. Terminology. Unless specifically defined in this Service Description, capitalized terms used in this Service Description have the meanings, if any, provided in the Master Agreement for Treasury Management Services (the "Agreement„), as amended from time to time. TM-1426 Commercial Electronic Office Service Description (Rev. 9/02 ) Page 3 of 3 99 40 Information Reporting Service Description This Service Description contains provisions which, in addition to the provisions contained in the Master Agreement for Treasury Management Services between Bank and Company (the "Agreement"), will govern the Information Reporting Service. 1. The Service. Company may, using a computer or a computer and a browser acceptable to Bank, receive account balance and certain other types of account information related to Customer's deposit accounts) or its accounts with other financial institutions. 2. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in the Agreement and the other Service Documentation, as each may be amended from time to time. TM-1431 Information Reporting Service Description - Revised 2/15/02 - ® 2002 Wells Fargo Banks. All rights reserved. Page 1 of 1 100 41 Stops —Photocopy —Search Service Description This Service Description contains provisions which, in addition to the provisions contained in the Master Agreement for Treasury Management Services between Bank and Company (the "Agreement"), will govern the Stops —Photocopy —Search Service (the "Service"). 1. The Service. Company may, using a computer or a computer and browser acceptable to Bank, request stop payment orders on checks drawn on Company's deposit account(s) or Company's account(s) with another financial institution maintained in connection with the Controlled Disbursement Service (a "Controlled Disbursement Account") and, where applicable, request photocopies of checks that have cleared Company's deposit account(s) or Controlled Disbursement Account(s). 2. Stop Payments. 2.1 Requirements. Bank may pay a check against Company's deposit account(s) whenever it is presented and without regard to its date. If Company does not want Bank to pay a check, it must place a stop payment order which is.valid for the period specified when Company opened its deposit account and must be received within sufficient time for Bank to act. 2.2 Limitations. A stop payment order will be ineffective with respect to (a) a check deposited to an account at a Wells Fargo Bank if it cannot be charged back without creating an overdraft in that account, and (b) a check that was cashed by any Wells Fargo Bank. Company authorizes Bank to accept telephone stop payment orders from any person who Bank in good faith believes is acting on Company's behalf. In Texas, Company must confirm an oral stop payment order in writing. 3. Survival. The provisions of this Service Description designated as Sections 2 and 3 will survive termination of the Service. TM-1434 Stops -Photocopy -Search Service Description - Revised 2/15/02 - 02002 Wells Fargo Banks. All rights reserved. Page 1 of 1 101 42 WellsImage® Service Description 1. Description of the Wellsimage Service (the "Service"). The Service will allow Company to receive images of the front and back of all checks paid against its deposit account(s). The images may be received using a Wellsimage CD ROM (each, a "CD ROM") or online through Check Image Retrieval via the Commercial Electronic O f ficesm ("CEO") Service. 2. Prerequisites. Before commencement of the Service, all of Company's deposit account(s) receiving the Service must be in good standing and a Wellsimage Set -Up Form must be completed by Bank. If Company is receiving Check Image Retrieval through the CEO, Company must also have completed requirements for receiving the CEO Service. 3. Wellsimage via CD-ROM. 3.1 CD-ROMs. Each CD-ROM will contain an index of the checks paid against Company's commercial deposit account during the time period covered by the CD-ROM, which index may be uploaded by Company to a master check image index for all Company's CD-ROMs. If a check on a CD-ROM index is not imaged on the CD-ROM, Bank will, upon request and without charge, send a photocopy of the front and back of the check. Bank will, at Company's request, recreate a CD-ROM, but only for a limited time after the CD-ROM is first created. CD-ROMs will be sent to Company at the address designated in the United States after the end of each CD-ROM cycle. 3.2 Sublicense, Under a non-exclusive, non -assignable sublicense from Bank, Company will receive WellsImage Vision Software (the "Software") to read its CD-ROMs on a PC using a Windows® - compatible operating system. Company may request more than one copy of the Software. Company will receive a sublicense for each copy of the Software sent to it. The sublicense appears in shrink- wrap format on the package containing the Software or has been provided separately to Company by Bank. 4. Canceled Checks. Company will automatically receive the CheXstor® Service, unless Company specifically instructs Bank on the WellsImage Setup form to return all paid checks to it. S. Termination. In addition to the provisions of the Master Agreement for Treasury Management Services (the "Agreement"), the Service may also be terminated by Bank immediately on written notice to Company if (a) all Company's deposit account(s) receiving the Service are closed for any reason, or (b) Company fails to comply with its obligations under the sublicense for use of the Software. 6. Survival. The provisions of Software sublicense will survive termination of the Service. 7. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in the Agreement and the other Service Documentation, as each may be amended from time to time. TM-1437 Wellsimage Service Description -Revised 2/15/02 ® 2002 Wells Fargo Bank, N.A. All rights reserved. Page 1 of 1 10243 WIRE TRANSFER SERVICES DESCRIPTION 1. Description of the Wire Transfer Services (the "Services"). The Services will enable Company to give instructions ("Orders") to Bank to (i) transfer funds by wire from the account(s) designated in the Wire Transfer Services Set-up Forms (the "Account"), and (ii) instruct another depository institution to debit an account at that institution and transfer the funds to Bank or debit the Account at Bank and transfer the funds to that institution ("Drawdown Requests"). In this Service Description, the term "Transfer Instruction" refers to both Orders and Drawdown Requests. This Service Description is in addition to, and not in place of, any other agreement which Company may have entered into with Bank regarding Wire Transfer Instructions. 2. Security Procedure. Company agrees that Bank may verify that Company has authorized a Transfer Instruction solely in accordance with the Wire Transfer Services Security Procedure Agreement then in effect (the "Security Procedure"). The Security Procedure will not apply to Transfer Instructions delivered to Bank in person by Company or its authorized representative. The Security Procedure will not be used to detect erroneous Transfer Instructions. Company agrees that the Security Procedure it selected is commercially reasonable and is the Security Procedure that best meets its requirements given the size, type and frequency of the Transfer Instructions Company will issue to Bank. Company further agrees to safeguard any number, code, password, test key, or other identifier assigned to it from discovery by any unauthorized person. If Company has chosen the telephone verification option and the individual contacted by Bank identifies himself or herself as an individual designated by Company and confirms that the Transfer Instruction was sent to Bank by Company, Bank will be conclusively deemed to have complied with the telephone security procedure. If Company becomes aware of a breach of the Security Procedure, or suspects that a breach may occur, it will immediately notify Bank in a time and manner that gives Bank a reasonable opportunity to act on it. 3. Identify Authorized Persons. Company will notify Bank in writing of the identity of each individual authorized to receive information regarding the Security Procedure. Company will promptly notify Bank in writing of any change in an authorized individual. Company's notice will be binding on Bank if it is received in a time and manner that gives Bank a reasonable opportunity to act on it. Bank will be fully protected in relying on Company's notices. Bank may, but will not be required to, electronically record any oral communication that it receives from Company. 4. Authorization to Pay. Company authorizes and instructs Bank to pay any Order that complies with the Security Procedure. For each Transfer Instruction executed by Bank in accordance with the terms of this Service Description, Company authorizes Bank to debit or credit, as applicable, the account specified in the Transfer Instruction (and if no account is specified, the Account or any other account of Company at Bank or an affiliate) even if a debit results in an overdraft. Company agrees to have sufficient available funds in the account specified in the Transfer Instruction (and if no account is specified, the Account) at the time of each debit. 5. Finality of Transfer Instructions. A Transfer Instruction will be final and will not be subject to stop payment or recall, except that Bank may, at Company's request, make an effort to effect such stop payment or recall. In that case, Bank will incur no liability for its failure or inability to do so. TM-1440 Wire Transfer Service Description Page 1 of 3 Revised 10/02 1013 44 6. Inconsistency of Name and Number. If a Transfer Instruction describes the person to receive payment inconsistently by name and account number (i) payment may be made on the basis of the account number even if the account number identifies a person different from the named person or (ii) Bank may in its sole discretion refuse to accept or may return the Transfer Instruction. If a Transfer Instruction describes a participating financial institution inconsistently by name and identification number, the identification number may be relied upon as the proper identification of the financial institution. If a Transfer Instruction identifies a nonexistent or unidentifiable person or account as the beneficiary or beneficiary's account, Bank may in its sole discretion refuse to accept or may return the Transfer Instruction. 7. Company's Duty to Exercise Ordinary Care. Company will exercise ordinary care to determine whether a Transfer Instruction accepted by Bank was either erroneous or not authorized and to notify Bank of the facts within a reasonable time not exceeding fourteen (14) days after Company has received notification from Bank that the Transfer Instruction was accepted or that the Account was debited or credited with respect to the Transfer Instruction, whichever is earlier. Company will be precluded from asserting that Bank is not entitled to retain payment for a Transfer Instruction unless Company objects within the fourteen (14) day period. 8. Information Requests. Company may request the issuance of tracer messages concerning uncompleted transfers. Company will provide Bank with any transaction information it considers necessary to process Company's inquiry. In addition to Bank's fees for this service, Company will reimburse Bank for any charges it incurs from third parties in connection with Company's requested tracer messages. 9. International Wire Transfers. A Transfer Instruction expressed in U.S. Dollars will be sent in U.S. Dollars. Company may request that prior to executing an Order or outgoing Drawdown Request, Bank converts the amount to be transferred from U.S. Dollars to the currency of a designated foreign government or intergovernmental organization ("Foreign Currency") at Bank's selling rate for exchange in effect on the date the Order or outgoing Drawdown Request is executed by Bank. If the financial institution designated to receive the funds does not pay the beneficiary specified in the Order or outgoing Drawdown Request and it is payable in Foreign Currency, Bank will not be liable for a sum in excess of the value of the Order or outgoing Drawdown Request after it has been converted from Foreign Currency to U.S. Dollars at Bank's buying rate for exchange at the time the cancellation of the Order or outgoing Drawdown Request is confirmed by Bank. 10. Responsibility of Bank. Bank is only responsible for making a good faith effort to execute Company's Transfer Instructions. Transfer Instructions may be sent by wire, telegraph, telephone, cable I or whatever other transmission method Bank considers to be reasonable. Orders and outgoing Drawdown Requests may be transmitted directly to the beneficiary's financial institution, or indirectly to the beneficiary's financial institution through another financial institution, government agency or other third party that Bank considers to be reasonable. Bank may execute an incoming Drawdown Request that conforms with instructions it receives through Fed Wire, SWIFT or any other funds transfer system, provided such instructions are not inconsistent with instructions contained in an applicable Set-up Form. The authority to execute the incoming Drawdown Request shall continue until Bank receives express written notice from Company that such authority is revoked. Bank will not be liable for any third party's failure to or delay or error in processing a Transfer Instruction. If the beneficiary bank does not pay the beneficiary specified in the Transfer Instruction, a refund will be made only after Bank has received confirmation of the effective cancellation of the Transfer Instruction and Bank is in free possession of the funds debited or earmarked in connection with the Transfer Instruction. If TM-1440 Wire Transfer Service Description Page 2 of 3 Revised 10/02 104 45 Bank is notified that it did not transfer the full amount stated in a Transfer Instruction, Bank's sole obligation will be to promptly execute a second Transfer Instruction in the amount of the stated deficiency. If Bank executes a Transfer Instruction in excess of the amount stated in the Transfer Instruction, to the extent that the originator does not receive the benefit of the Transfer Instruction, Bank will only be liable for any loss of the principal amount transferred in excess of the amount stated in the Transfer Instruction. Additionally, Bank will be liable for the amount of interest the originator has lost due to the transfer of the excess amount, computed at the then current Federal Funds rate. However, Bank's liability for loss of interest will be limited to twenty (20) calendar day's interest. This section sets forth Bank's complete liability for a Transfer Instruction issued or received under this Service Description. IN NO EVENT WILL BANK BE LIABLE FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY IF THE TRANSFER INSTRUCTION IS EXECUTED BY BANK IN GOOD FAITH AND IN ACCORDANCE WITH THE TERMS OF THIS SERVICE DESCRIPTION. As used in the Master Agreement for Treasury Management Services (the "Agreement„), with respect to the Services, "negligence" means a material failure to use the degree of care used under similar circumstances by a national bank having a similar volume of funds transfers and similar number, size and diversity of funds transfer customers. 11. Governing Law; Rules and Regulations. Bank's and Company's rights and obligations regarding Transfer Instructions will be governed solely by this Service Description and the other Service Documentation and, to the extent applicable, federal law and the law of the state in which Bank's principal office is located, as amended from time to time. Article 4A of the Uniform Commercial Code will, to the extent possible, be applied by analogy to any Drawdown Requests. All Transfer Instructions will also be subject to the rules and regulations of any funds transfer system used by Bank as amended from time to time. If a Transfer Instruction is to be processed in accordance with a statute, rule, regulation or license of the United States, or any federal agency, the Transfer Instruction will be governed by that statute, rule, regulation or license. 12. Notices; Receipt of Confirmations. In addition to the notice provision set forth in Section 10.6 of the Agreement, the following will apply: A bank statement showing a Transfer Instruction sent by first class mail to Company's last address as shown in Bank's records and not returned will be conclusively presumed to have been received by Company seven (7) days after it is sent. 13. Agents. Bank may use agents of its choice to perform any of its obligations. 14. Survival. Sections 4, 7, 9, 10 and 14 will survive termination of the Services. 15. Terminology. Unless specifically defined in this Service Description, terms used in this Service Description have the meanings, if any, provided in Article 4A of the Uniform Commercial Code, as amended from time to time. Each Bank request, instruction and set-up form completed by or on behalf of Company in connection with the Services will be deemed to be a "Set-up Form" as that term is used in the Service Documentation. TM-1440 Wire Transfer Service Description Page 3 of 3 Revised 10/02 105 46 Wire Transfer Services Security Procedure Agreement See the Wire Transfer Reference Guide for required documentation and complete instructions. Section 1 - Agreement NEW ❑REPLACEMENT Account Number: This agreement is made this day of , 20 by and between ("you or "your" ) and Wells Fargo Bank , N.A. ("Bank"). By signing below or, if applicable, on the Acceptance of Service, you acknowledge receiving and agreeing to be bound by these terms and conditions and those referred to in Bank's Wire Transfer Customer Setup Form (the "Setup Form") and the Wire Transfer Services Agreement or the Master Agreement for Treasury Management Services and Wire Transfer Services Description and, if applicable, the CEO Service Description. You understand that in any instructions to transfer funds by wire from accounts you maintain at Bank ("Orders"), Bank may rely solely (i) on the account number of the person ("Beneficiary") who is to receive the wire transfer rather than the Beneficiary's name, and (ii) if provided by you, on the identification number of any other financial institution through or to which the funds are to be transferred, rather than the name of the financial institution. You agree that you are bound by any Order, whether or not authorized, issued in your name and accepted by Bank in compliance with the security procedure selected by you. Section 2 - Standard Security Procedures 2.1 Voice Initiated Orders. Bank's standard security procedures consist of confirming that the personal identification number ("PIN") that accompanies an Order corresponds with a valid PIN assigned to you on voice -initiated Orders. A PIN is required for all voice -initiated transfers. 2.2 Terminal Initiated Orders. Bank's standard security procedures for terminal -initiated Orders (including Orders placed via the Internet) consist of RSA SecurID® or other system security features offered by Bank. Section 3 - Additional Security Procedures for Specific Services. (Unless designated as "optional". the following security procedures are required in addition to the Standard Security Procedures.) 3.1 Voice -Initiated, Non -Repetitive Wires. 3.1.1 ❑ Telephone Verification. (Optional) By initialing this box, you have agreed that Bank will make a reasonable attempt to telephone a person(s) designated by you on Bank's most current Setup Form, to verify that a voice -initiated, non -repetitive Order is authorized if it exceeds $ . (If no amount is designated, $500,000 will be used.) If Bank is unable to complete the call, the Order will not be processed. Bank will not telephone to verb a Repetitive Order. A "Repetitive Order" is an Order to Bank to pay a specified amount of money to a previously designated Beneficiary at a previously designated Beneficiary's financial institution. TM-1441.doc Revised080102 - 1—of 3 3.2 Commercial Electronic Office (CEO ) Wire Transfer Service (or WelhNet Wire Transfer Service.) 3.2.1 Availability of Self -Administration. If you request Self -Administration of your access to the CEO, most of the set-up and administration of your access to CEO services (including the CEO Wire Transfer Service) will be performed by your Company Administrator rather than Bank. Three levels of access authorization are available: Company Administrator, Administrator and Operator. A "Company Administrator" has access to all services you receive through the CEO and is able to set up and administer access for other Company Administrators, Administrators and Operators for all such services. An "Administrator" has access to specific CEO services and can set up other Administrators and Operators for such specific services. "Operators" are authorized to access specific services and functions (for example, the create/modify function or the verify function for wire transfer requests) within those services, but they are not authorized to set up or administer access for such services or functions. 3.2.1.1 No Self -Administration. If you do not have Self -Administration, your designated security administrator will determine Operators and the dollar limits per transaction and per day assigned to each Operator and will communicate this information to Bank. Bank will set up the Operators by assigning each a personal ID code. Your security administrator will also be responsible for communicating any changes in Operators or in Operator limits or authorization(s) to Bank. You will promptly report to Bank any lost or stolen token cards. 3.2.1.2 Self -Administration. If you have requested Self -Administration, Bank will assign a Company ID code and will set up your first Company Administrator by assigning a personal ID code and password to be used when he/she first enters the CEO number. He/She can then set up additional Company Administrators, Administrators or Operators. Any Company Administrator: (a) can set up additional Company Administrators, Administrators and Operators (issuing each a password that will be changed upon first entry to the CEO) and a personal ID code; (b) can reset passwords for all services; and (c) shall be required to immediately disable access to the CEO for any Company Administrator, Administrator or Operator who ceases to be a Company Administrator, Administrator or Operator. An Administrator can set up additional Administrators and Operators and reset passwords for the specific service(s) he/she is set up to access. Bank will not know the password of any Company Administrator, Administrator, or Operator except the initial password assigned to the first Company Administrator. Bank will give each Company Administrator and Administrator a token card and a PIN, known only by them individually and Bank. Self -Administration will also allow a Company Administrator or an Administrator to initiate a request to Bank to reassign an existing token card to another Company Administrator, Administrator or Operator. 3.2.1.3 Self -Administration with Dual Control. If you have requested Self -Administration with dual control, Bank will assign a Company ID code and will set up your first two Company Administrators by assigning each a personal ID code and password to be used when each first enters the CEO. All actions that can be performed by a Company Administrator or an Administrator in Section 3.2.1.2 will require that one Company Administrator (or Administrator with appropriate function access) initiate the action and a second Company Administrator (or Administrator with appropriate function access) approve the action. 3.2.2 Token Cards. Bank will assign a token card to each Operator. The token card generates a random and unique security code every minute. The code combines with a PIN to provide a unique password (the "Passcode") every minute. The PIN is set by each Operator individually upon first logon. The Passcode must be presented with each request to access the Service and is used by Bank to authenticate the identity of Company and/or the person originating the request. Bank will verify each request to access the Service by determining if the Passcode is valid for the associated personal ID code for the Operator and if the personal ID code used by the person requesting access is the personal ID code of one of the persons you have designated in writing as being authorized such access. Bank has no obligation to confirm in any other way the identity of any person making such a request. 3.2.3 Non Repetitive Requests. For domestic and international non -repetitive wire transfer requests, Operators who create/modify such requests additionally will be required to use a Password which is initially provided to the Operator by Bank, or by a Company Administrator or Administrator if you have Self -Administration, and is changed by the Operator upon first to on. 3.3 Electronic Commerce/Payment Manager Services. (Check applicable box.) 3.3.1 ❑ Password- File Transmission (Non -Encrypted). This procedure requires that a unique eight -digit code separately agreed upon in writing by you and Bank be presented with your wire file. You may be required to change the code on a regular basis 3.3.2. ❑ Secure File Transport (Encrypted). This procedure uses 128-bit SSL (Secure Sockets Layer) encryption and requires the use of a transmission ID and a transmission password. Use of a digital certificate is optional. Section 4 - Additional Provisions 4.1 Separation of Operator Function. You may separate among Operators using the Wire Transfer Service the ability to create/modify and to verify wire transfer requests. When an Operator is authorized to create/modify both domestic and international repetitive and non -repetitive transfer requests, Bank requires that you assign a separate Operator to verify these transactions. Bank requires that you separate such functions to reduce your risk of suffering a loss resulting from an unauthorized or fraudulent wire TM-1441.doc Revised080102 - 2 —of 3 10 7 48 transfers 4.2 Additional Actions by Bank. Any actions Bank takes to detect erroneous wire transfer requests, or any actions Bank takes beyond those described above in an attempt to detect unauthorized requests or instructions will be taken at Bank's sole discretion. No matter how many times Bank takes these actions they will not become part of Bank's standard procedures for attempting to detect such erroneous or unauthorized requests or instructions, and Bank will not in any situation be liable for failing to take or to correctly perform these actions. 4.3 Protection of Passwords, PINS, etc. It is your responsibility to ensure that the ID codes, passwords, token cards, PINs, and Passwodes are known to, and used only by, persons who have been properly authorized by you to use the Wire Transfer Service. Bank, in its sole discretion, may cancel or reissue any PIN it believes may have been compromised, including, without limitation, a PIN that has never been acknowledged as having been received and any PIN that has been used by anyone other than the intended authorized user. NOTE: Customer is NOT REQUIRED to complete Sections S and 6 below if it has accepted a wire transfer security procedure by signing the Acceptance of Service. Section 5 - Individuals authorized to receive information re rding the security procedure Name Name Name Name 4ectinn 6 - rimMmer Annrnvals - Signature(s) as reauired by certificate of authority on signature card Legal Name of Customer Tax ID/SSN Printed Name of Authorized Signer Printed Name of Authorized Signer Title Title Signature X Signature X Date Date Sectinn 7 - Bank Annrovals Bank Name RAU/CC/AU Banker/Officer Name MAC Banker/Officer Signature X Phone Number Date TM-1441.doc Revised080102 - 3 —of 3 108 49 Master Agreement For Treasury Management Services The Service Documentation described below contains the terms under which Wells Fargo provides treasury management services ("Services" ). The Wells Fargo bank through which the Services will be provided ( "Bank" ) and the Company to which the Services will be provided are identified in the Acceptance of Services ( "Acceptance"). Bank and Company agree: 1. Service Documentation. The Service Documentation includes: 1.1 The Service Description for each Service. 1.2 The Acceptance. 1.3 This Master Agreement for Treasury Management Services ( "Master Agreement"). 1.4 The account agreement for the business or commercial deposit account(s) (each, an "Account") that Company or Company's affiliate or subsidiary maintains at Bank or Bank's affiliate in connection with a Service. The account agreement includes the Dispute Resolution Program that Company and Bank agree to use to resolve any disagreements between Company and Bank regarding accounts and Services governed by the Service Documentation. 1.5 User Guides which include software, software licenses, reset diskettes, price schedules, specifications, instructions, and notices. 1.6 The set-up form(s) for each Service. The Service Documentation also applies to any Service that is provided by an affiliate of Bank and any Service that is used by an affiliate or a subsidiary of Company. "Bank" includes each such affiliate, and "Company" includes each such affiliate and subsidiary. All terms defined in this Master Agreement shall have the same meaning when used in the Service Documentation. If there is a conflict among the documents that make up the Service Documentation, the documents will govern in the order set forth above. Company acknowledges receiving a copy of the Service Documentation for each Service it requested when it entered into this Master Agreement. 2. Services. Bank and Company will agree upon the Service(s) to be provided. 3. Changes to Services. Bank may change (or add to) the terms and fees in the Service Documentation at any time upon prior written notification. If Company discontinues using the affected Service before the change becomes effective, it will not be bound by the change. If Company continues to use a Service after the change becomes effective, it will be bound by the change. 4. Term and Termination. Unless terminated sooner in accordance with the Service Documentation, this Master Agreement and all Services will continue in effect until terminated by either party upon thirty (30) days prior written notice to the other party (unless a Service is terminated sooner in accordance with the Service Documentation). Bank may terminate any Service following notice to Company of a breach of any provision of the Service Documentation and Company's failure to cure the breach within fifteen (15) days of the date of such notice. Bank may also terminate any Service without notice to Company if Company is subject to a TM-1450 Master Agreement For Treasury Management Services- Revised 2/15/02 Page 1 of 4 1 9 50 petition under the U. S. Bankruptcy Code or if Bank determines, in its sole discretion, that a material adverse change has occurred in Company's ability to perform its obligations under the Service Documentation. The termination of a Service will not affect Company's or Bank's rights with respect to transactions which occurred before termination. Bank shall not be liable to Company for any losses or dam- ages Company may incur as a result of any termination of any Service. S. Service Fees. Company shall pay Bank the fees described in the Service Documentation and any taxes appli- cable to each Service, however designated, exclusive of taxes based on Bank's net income. Bank may debit Company's account(s) with Bank for any fees not covered by earnings credits and any taxes that are due, or it may send an invoice to Company for such amounts, which Company shall promptly pay. Bank may assess finance charges at a rate of 1.5 % per month (18 % per annum) or the highest rate permitted by law, whichever is less, on any invoiced fees or taxes that are not paid within thirty (30) days of the due date and shall apply payments and other reductions of amounts owed first to unpaid interest and then to other fees and charges. 6. Confidential Information. Unless otherwise provided in the Service Documentation, all User Guides and computer programs provided pursuant to this Master Agreement constitute Bank's or its vendor's confiden- tial information ( "Confidential Information"). Bank or its vendor will remain the sole owner of all such Confidential Information, and Company will not acquire any interest in or rights to it as a result of Company's use of any Service except as set forth in the Service Documentation. Company will maintain the confidentiality of the Confidential Information and will not disclose (or permit its employees or agents to disclose), copy, transfer, sublicense or otherwise make any of it available to any person or entity, other than its employees who have a need to use the Confidential Information in connection with the applicable Service. Company shall notify Bank immediately if it knows or suspects that there has been any unautho- rized disclosure, possession, use or knowledge (each, an "Unauthorized Use") of any Confidential Information, and if it is responsible for the Unauthorized Use, it will, at its expense, promptly take all actions, including without limitation initiating court proceedings to recover possession or prevent further Unauthorized Use of the Confidential Information and obtain redress for any injury caused to Bank as a result of such Unauthorized Use. In addition, except as permitted by applicable law, Company may not decompile, reverse engineer, disassemble, modify, or create derivative works of any computer program pro- vided pursuant to this Master Agreement. 7. Third Party Networks; Use of Required Software. If Bank determines that any funds transfer or communica- tions network, Internet service provider, or other system(s) it has selected to provide a Service is unavailable, inaccessible or otherwise unsuitable for use by Bank or Company, Bank may, upon notice to Company, sus- pend or discontinue the affected Service. Company shall use and maintain in good working order (and at its own expense) software, hardware and other equipment necessary for Company to use the Service(s) in accordance with the Service Documentation. 8. No Representations or Warranties of Bank or Software Vendor. Neither Bank nor any software vendor makes any express or implied representations or warranties with respect to the Services or any software used in connection with the Services including without limitation any warranty as to the merchantability or fit- ness for a particular purpose, other than those expressly set forth in the Service Documentation. Master Agreement For Treasury Management Services Page 2 of 4 110 51 9. Liability and Indemnification. 9.1 Bank will perform each Service in accordance with reasonable commercial standards applicable to Bank's business; laws, regulations and operating circulars governing the activities of Bank; applicable funds transfer system(s) and clearinghouse rules; and the Service Documentation. 9.2 Bank is under no obligation to honor, in whole or in part, any entry, file, batch release, payment order, transaction or instruction (each, an "Order"), which a) exceeds Company's available funds on deposit in an Account with Bank related to the Order, unless otherwise provided in the Service Documentation; b) is not in accordance with the Service Documentation or Bank's applicable policies, procedures or practices as Bank may from time to time establish and make available to Company; c) Bank has reason to believe may not been duly authorized, should not be honored for its or Company's protection, or involves funds subject to a hold, dispute, restriction or legal process that prevents their withdrawal; or d) would possibly result in Bank violating any applicable rule or regulation of any fed- eral or state regulatory authority including without limitation any Federal Reserve risk control pro- gram or guidelines such as the limitations on Bank's intra-day net funds position. 9.3 Company shall promptly furnish written proof of loss to Bank and notify Bank if it becomes aware of any third party claim related to a Service. Company shall cooperate fully (and at its own expense) with Bank in recovering a loss. If Company is reimbursed by or on behalf of Bank, Bank or its designee will be subrogated to all rights of Company. 9.4 Any claim, action or proceeding against Bank for losses or damages arising from a Service, including Bank's honoring or dishonoring a check covered by a Service, must be brought within one (1) year from the date of the act or omission or in the case of a check from the date the check was first paid or returned by Bank. 9.5 Bank will have no liability for failure to perform or delay in performing a Service if the failure or delay is due to circumstances beyond Bank's reasonable control. 9.6 Except in the case of Bank's gross negligence or intentional misconduct, Company shall indemnify and hold Bank, its directors, officers, employees and agents harmless from all losses or damages that arise out of a) the performance of a Service in accordance with the Service Documentation including with- out limitation any warranty Bank is required to make to a third party in connection with a Service; b) an act or omission of any agent, courier or authorized representative of Company; and c) if the Service includes a license or sublicense of any software to Company, the use or distribution of the software by Company or any person gaining access to the software through Company that is inconsistent with the license or sublicense. 9.7 Bank will only be liable to Company for its direct monetary losses or damages due to Bank's negli- gence or breach of this Master Agreement. Except in the case of Bank's gross negligence or intentional misconduct, Bank's liability to Company will be limited to an amount not to exceed ten (10) times Bank fees incurred during the calendar month immediately preceding the calendar month in which such loss or damages were incurred (or, if no Bank fees were incurred in such month, Bank fees incurred in the month in which the losses or damages were incurred). In no event will either party to this Master Agreement be liable to the other party for any special, consequential, incidental (including without limitation court costs and attorneys' fees), indirect, or punitive losses or damages, whether any claim is based on contract or tort, or whether the likelihood of such losses or damages was known to the other party and regardless of the form of the claim or action. Master Agreement For Treasury Management Services Page 3 of 4 111 52 10. General. 10.1 The Service Documentation will be governed by substantive federal laws, regulations and rules and, to the extent such laws, regulations and rules are not applicable, those of the state in which the principal office of the Bank identified on the Acceptance is located, without regard to conflicts of laws princi- ples. Any portion of the Service Documentation which is inconsistent with applicable laws, regulations or rules will be deemed modified and applied in a manner consistent therewith, and Bank will incur no liability to Company as a result of the inconsistency or modification and application. If any portion of the Service Documentation is deemed unenforceable or invalid, it will not otherwise affect the enforce- ability or validity of the Service Documentation. 10.2 The Service Documentation is the entire agreement between Bank and Company and supersedes all prior representations, conditions, warranties, understandings, proposals or agreements regarding a Service. No course of dealing or waiver of any right on one occasion will constitute a modification of the Service Documentation or be a waiver of that right on a subsequent occasion. 10.3 Company agrees to provide Bank promptly upon Bank's request any existing financial statements or other information pertaining to Company's financial condition or any previously unprepared financial statements which Bank may require Company to prepare and/or to be audited or reviewed by inde- pendent certified public accountants acceptable to Bank. 10.4 Company expressly warrants that a Service will not be used in a manner which violates any federal or state law including without limitation any sanction or control administered by the Office of Foreign Assets Control or Bureau of Export Administration. 10.5 Sections 4, 5, 6, 8, 9, 10.4 and 10.5 of this Master Agreement will survive termination of this Master Agreement. 10.6 Either party may provide notice to the other party by mail, personal delivery, or electronic transmis- sion. Bank shall use the most recent address for Company in Bank's records, and any notice from Bank will be effective when sent. Company shall use the address where Company's relationship man- ager or other manager is located and address any notice to the attention of such manager. Any notice from Company will be effective when actually received by Bank. Bank will be entitled to rely on any notice from Company that it believes in good faith was authorized by an authorized representative of Company and, except as expressly stated in the Service Documentation, shall have no obligation to verify the signature (including an electronic signature). Each party will have a reasonable time after receipt of any notice to act on it. 10.7 All uses of the Services through Company's ID codes, passwords, token cards, PINs, or passcodes (each, a "Code") will be deemed to be authorized by and binding on Company. Company's failure to protect Codes may allow an unauthorized party to a) use the Services, b) access Company's electronic communications and financial data, and c) send or receive information and communications to Bank. Unencrypted electronic transmission are not secure. Company assumes the entire risk for unauthorized use of Codes and any unencrypted electronic transmissions. 10.8 Company may not assign or transfer its rights or obligations with respect to the Service Documentation without Bank's prior written consent. Bank may assign its rights and obligations with respect to the Service Documentation to any successor by merger, consolidation or corporate reorgani- zation. 10.9 Unless otherwise provided in the Service Documentation, the term "Banking Day" means that part of a business day occurring prior to the cutoff time determined in accordance with Bank's applicable funds availability policy. Master Agreement For Treasury Management Services 02002 Wells Fargo Banks. All rights reserved. Page 4 of 4 112 53 FARGO WELLSTAX® SERVICE DESCRIPTION 1. Description. The WeIlsTax Service will allow Company to transfer funds (a "Transfer") from its account(s) (each, an "Account") with Bank to pay its federal payroll taxes to the Internal Revenue Service ("IRS") and to pay certain other federal, State or other taxes listed from time to time in the WeIlsTax User Guide ("User Guide"). Company may initiate Transfers by touch-tone telephone or from its PC using the WeIlsTax Windows -based software (the "Software") Bank supplies to Company. 2. Means for initiating Transfers. Bank will originate Company's transfers from its Account(s) to a third party ("Receiver") account ("Credit Entries") using the automated clearing house ("ACH") system or book transfer, as appropriate. All transfers will be made in accordance with the terms of this Service Description and, where applicable, the Operating Rules of the National Automated Clearing House Association ("NACHA Rules"). 3. Procedures for Initiating Transfers. Transfers may be initiated using either touch-tone telephone or PC origination. In order to initiate a Transfer, Company must use an access code and personal identification number ("PIN"). 4. Security Procedures. • Company will manage and control the access to the WeIlsTax Service by means of its access code and PIN. Company assumes the entire responsibility at all times for the supervision, management, control and confidentiality of its access code and PIN and assumes the entire risk for the fraudulent or unauthorized use of its access code or PIN. Company understands that failure to protect its access code and PIN may allow an unauthorized person or entity to access the WeIlsTax Service. Company agrees to develop and put in place internal procedures to limit such risk, including, among other things, (a) changing the PIN at least once every 90 days, (b) changing the PIN each time an employee who had access to the PIN leaves Company or is reassigned, and (c) keeping the access code and PIN under secure conditions. Company also agrees to notify Bank immediately if it knows or suspects that the confidentiality of its access code of PIN has been breached. • Company agrees that all persons or entities employed by Company to prepare, process or transmit Company's Credit Entries to Bank will be deemed Company agents and will be subject to the same requirements as Company under this Service Description, including, among other things, compliance with the Security Procedures and the NACHA Rules. 5. Accuracy of Data. Company must provide to Bank the data and information necessary to enable Bank to inform the government agency or entity to be paid of the payment of the tax within the time period required by any rule or regulation governing the payment. Company authorizes Bank to rely on the accuracy of such data and information furnished by it. 6. Transfer Deadline. Any Transfer initiated on any Business Day (a day on which Bank is open to provide the WeIlsTax Service, other than Saturdays, Sundays or public holidays) after the cutoff hour Bank establishes, or any time on a non -Business Day, will be deemed initiated on the following Business Day. Transfers must be initiated by the applicable deadline ("Transfer Initiation Deadline") as follows: Transfers to a taxing authority must be initiated at least one Business Day prior to the date payment is due to the taxing authority. TMA 520 WeIlsTax Service Description Revised 9/02 Page 1 of 3 113 54 7. Authorized Reporting Agent. In performing the WeIlsTax Service, Bank is acting as Company's authorized reporting agent. If Company is a taxpayer that is mandated by Federal Law to make FTD payments and submit FTD information through the EFT system, Bank must make Company payments as FTD payments and submit Company payment information through the EFT system, regardless of Company's designation to the contrary. 8. Acceptance of Transfer Requests. The Security Procedures describe what steps must be taken to attempt to prevent unauthorized Credit Entries. Company agrees to be bound by any Credit Entry (1) authorized or transmitted by Company or (ii) made in Company's name and accepted by Bank in good faith and in compliance with the Security Procedures, even if not properly authorized by Company. If Bank takes any actions beyond those described in the Security Procedures in an attempt to detect unauthorized Credit Entries or to detect errors in the transmission or content of Company's Credit Entries, Company agrees that no matter how many times Bank takes these actions (i) they will not become part of the Security Procedures and (ii) Bank will not be liable in any situation for failing to take or correctly perform these actions. Without limiting Bank's general right to reject entries or files under the NACHA Rules, Bank may reject any entry or file which does not comply with the requirements in this Service Description, the NACHA Rules or the Security Procedures, or with respect to which payment is not made in accordance with this Section 8. A request for a Transfer may not be accepted by Bank or the making of a requested Transfer may be delayed if the Transfer would (a) exceed the available funds in the Account on Transfer Initiation Deadline, (b) cause Bank to violate any applicable laws or regulations, or (c) cause Bank to exceed any limitation on intra-day net funds position established in accordance with Federal Reserve or other regulatory guidelines or violate any other Federal Reserve or other regulatory risk control program. If Bank does not accept a request for a Transfer or must delay making a requested Transfer, Bank, will attempt to notify Company by telephone. Company agrees to pay Bank, in immediately available funds, an amount equal to the full amount of the requested Transfer. Each such payment must be received by Bank on the date of initiation, which must be on or before the Transfer Initiation Deadline. Company expressly authorizes Bank to debit the Account for the total amount of such Transfer on the date of initiation. If Bank rejects a Credit Entry Company has requested, Bank will endeavor to notify Company promptly on or before its scheduled Settlement Date, but Bank shall have no liability to Company for any such rejection or for any loss resulting from Bank's failure to provide such notice. Bank may process Company's Credit Entries either directly or through any mechanism it selects. Company represents and warrants with respect to each Credit Entry that Bank originates for Company that on its Effective Entry Date, on the date it is originated, and on the dates Bank debits the Account for the Credit Entry, (1) each Receiver has authorized the crediting of its account, and (ii) each Credit Entry is in all other respects properly authorized. Company agrees to indemnify Bank for any losses, liabilities, costs or expenses Bank suffers or incurs as a result of any breach of these representations and warranties. Bank will determine the funds transfer system or other third party communications systems and the means by which each Credit Entry will be originated. Any instruction attempting to restrict Bank's acceptance of Company's Credit Entries or to reverse or delete any Credit Entry must be made in accordance with this Service Description and where applicable, the NACHA Rules. At Company's request, Bank will make reasonable efforts to reverse or delete a Credit Entry, but Bank will have no responsibility for the failure of any other person or entity to comply with Company's request. 9. No Verification of Transfer Requests. Bank is under no obligation whatsoever at any time to verify any Transfer request, and will have no liability for failing to investigate or verify any Transfer request. TM-1520 WeIlsTax Service Description Revised 9/02 Page 2 of 3 114 55 10. Confirmations. Bank will confirm each Transfer by an entry on Company's account statement that Company will receive at regular intervals (or on any bank information reporting service that Bank provides Company). Company must immediately inform Bank of any Transfer that is incorrect or not authorized by Company. 11. Debits to Accounts for Transfers. Company hereby authorizes Bank to debit the Account for all Transfers made by Bank from such Account. Company agrees to maintain in each Account at all times good and sufficient funds to cover all Transfers out of such Account. If sufficient good funds are not maintained in an Account to cover fully a Transfer out of such Account, Bank will have no obligation to perform the WellsTax Service for Company or to make any Transfer out of such Account for Company even if Company has instructed Bank to do so. 12. Amendments and Cancellations of Transfer Requests. After Bank has made a Transfer, it cannot be canceled, amended or reversed. 13. Attempts to Restrict Acceptance of Transfer Requests. Instructions attempting to restrict Bank's acceptance of Company's requests for Transfers out of an Account may only be made in a writing, sent by telecopy or mail or personal delivery, which is signed by at least one of the persons authorized on the account documentation for such Account to withdraw funds by check from the Account or by a person authorized in Company's Board of Director's resolutions to enter into funds transfer arrangements with banks or into this Service Description. Such instructions will only be effective with respect to requests for Transfers made on the first Banking Day after Bank receives such instructions. 14. Records, Information and Audits. Company agrees to determine promptly the accuracy of all records and information regarding the WellsTax Service or any Transfer delivered by Bank to Company and to notify Bank immediately of any errors in such records or information. Nothing in this Service Description shall relieve Company from (a) any responsibility imposed by law, regulation or contract with regard to the maintenance of records, or (b) any responsibility to perform audits and account reviews customarily conducted by persons or entities whose businesses are similar to Company's business. 15. Responsibility for Paying Taxes. Any interruption in the WellsTax Service for any reason beyond Bank's control will not relieve Company of any obligation to pay any tax to the IRS, or any other government agency or entity owed the tax, and Bank will have no liability to Company for any failure by Company in such circumstances to pay any tax. 16. Changes to Information. Except as provided otherwise in this Agreement, the information on any Set -Up Form can only be changed by delivering a new Set -Up Form to Bank. Each completed Set -Up Form must be sent to Bank. 17. Software. Bank hereby grants Company a non-exclusive and non -assignable sublicense to use the Software for the purpose of initiating Credit Entries. The Software is the original, confidential, valuable and proprietary product of govONE Solutions, LP which has licensed the Software to Bank with the right to sub -license to Company. Company has only the right to use the Software consistent herewith and with the other WellsTax Service Documentation. 18. Maintenance. Company will, at Company's own cost and expense, obtain, install and, at all times during Company's utilization of the WellsTax Service, maintain in good working order all hardware and equipment necessary for the WellsTax Service. Company shall implant on a regular basis and not less than weekly, backup measures to the WellsTax Service, including, among other things, if Company is originating Credit Entries through Company's PC, copying onto diskette each week's current data base files. In the event of any failure of hardware or software, Company will deliver to Bank all data necessary to perform Bank's obligations in connection with this WellsTax Service. TMA520 WellsTax Service Description Revised 9/02 Page 3 of 3 115 56 ACCEPTANCE OF SERVICES yE �„ Yam` Bank: Wells Fargo Bank , N. A. ❑ New Agreement ❑ Additional Service Each person signing this Acceptance of Services rAcceptance') certifies that: (a) the undersigned Company has received and agrees to be bound by the Service Documentation, as defined in Bank's Master Agreement for Treasury Management Services ("Agreement's, and, if checked below, the Bank's Security Procedures, Sweep Services and Credit Sweep Services; (b) he or she has full authority to execute this Acceptance on behalf of Company, to enter into other agreements with Bank for Services now or hereafter offered by Bank and to amend, terminate or otherwise act on behalf of Company with respect to such agreements and Services, and (c) Company's use of any Service confirms its agreement to be bound by the Service Documentation relating to that Service. All terms defined in the Agreement shall have the same meaning when used in this Acceptance. Company's elections with respect to Security Procedures, Sweep Services, and Credit Sweep Services are: ❑ Yes ❑ No Security Procedures — ACH. (If yes, go to Part ll, below) ❑ Yes ❑ No Security Procedures — Wire Transfers. (If yes, go to Part 11, below) ❑ Yes ❑ No Sweep Services. (If yes, go to Part Ill, below) ❑ Yes ❑ No Credit Sweep Services. (Obligation #_) A. Important Information about Security Procedures. Company understands that when Bank acts on any instruction to transfer funds by ACH or wire transfer from accounts Company maintains at Bank (each, an "Order's, Bank and any beneficiary's bank may rely solely on (i) the beneficiary's account number even if it identifies a person different from the named beneficiary, and (ii) if provided to Bank, the identification number of any other financial institution through or to which the funds are to be transferred, rather than the name of the financial institution. Company expressly agrees to be bound by any Order, whether or not authorized, issued in its name and accepted by Bank in compliance with the security procedure(s) Company has selected as indicated below. If Company selects a security procedure that is set forth in an Addendum, that Addendum is incorporated in this Acceptance by this reference. B. Security Procedures for ACH Services. (Select Option 1 or Option 2.) Option 1 ❑ Yes ❑ No Bank's Standard Security Procedures (as set forth in Bank's ACH Services Security Procedures Agreement that is incorporated in this Acceptance by this reference). If Company elects Bank's Standard Security Procedures, Company must select one of the following Security Procedures: ❑ Yes ❑ No Internet ACH security procedure. ❑ Yes ❑ No Other ACH Services security procedures (If yes, select procedure that applies.) ❑ Token Car&Passcode — ❑ Password — File Transmission File TransmissionBatch Release ❑ Secure File Transport. ❑ Password — Taped or Written Instructions. 116 TM-1444 Acceptance of Services (Revised 04/03) Page 1 of 4 57 Option 2 ❑ Yes ❑ No Special Security Procedures. Company has refused the security procedures set forth in Option 1 above. Instead Company has requested use of the security procedure(s) set forth in the Addendum. Individual(s) authorized to receive information regarding the ACH security procedure selected above: Name Name Name Name C. Security Procedures for Wire Transfer Services. (Select Option 9 or Option 2.) Option 1 ❑ Yes ❑ No Bank's Standard Security Procedures (as set forth in Bank's Wire Transfer Services Security Procedures Agreement that is incorporated in this Acceptance by this reference). In addition to Bank's Standard Security Procedures, Company has selected the following security procedures: ❑ Yes ❑ No Security Procedure for Telephone Verification (voice -initiated Orders only). Voice -initiated, non -repetitive Orders exceeding $ will be subject to telephone verification. (If no amount is designated, $500,000 will be used.) ❑ Yes ❑ No Security Procedure for Commercial Electronic Offices"' ("CEO") Mrs Transfer Service (or Wellshlet Wins Transfer Service.) ❑ Yes ❑ No Security Procedures for Electronic Commerce/Payment Manager Services (If yes, select procedure that applies.) ❑ Password - File Transmission (Non -encrypted). (This procedure requires that a unique eight -digit code separately agreed upon in writing by Company and Bank be presented with Company's wine rile. Company may be required to change the code on a regular basis.) ❑ Secure File Transport (Encrypteaq. (This procedure uses 128-bit Secure Sockets Layer encryption and requires the use of a transmission ID and a transmission password. Use of a digital certificate is optional.) Option 2 ❑ Yes ❑ No Special Security Procedures. Company has refused the security procedures set forth in Option 1, above. Instead Company has requested use of the security procedure(s) set forth in the Addendum. Individual(s) authorized to receive information regarding the Wire Transfer security procedure selected above: Name Name Name Name TM-1444 Acceptance of Services (Rev. 4/03) 117 Page 2 of 4 58 ,✓ „ ma ., r: ;� Ww.� £v ` 9 >F 5t,. :io. L.MMINN., Ji' tt , , 3 A. IMPORTANT DISCLOSURES 1. General. The investment instruments below that are offered, sold, or placed by Bank are not deposits in or obligations of, and are not guaranteed by, Bank or any affiliate (except for Repurchase Agreements, see below); are not insured by the FDIC, the Securities Investors Protection Corporation, or the United States of America, and are subject to investment risk including possible loss of principal invested or the nonpayment of interest. Yields vary with market conditions. Past performance is no guarantee of future results. Bank makes no representation or warranty as to the suitability or safety with respect to any investments. Bank and its affiliates and their respective employees, officers and directors, will not be liable to Company for any reason whatsoever related to investments or redemptions made through the Services. 2. Mutual Funds. Wells Fargo Funds Management, LLC, a wholly -owned subsidiary of Wells Fargo & Company, provides investment advisory and administrative services for the Wells Fargo Funds. Other affiliates of Wells Fargo & Company provide sub -advisory and other services for the Funds. The Funds are distributed by Stephens, Inc., Member NYSE/SIPC. Wells Fargo & Company and its affiliates are not affiliated with Stephens, Inc. Fees for such services are disclosed in the prospectuses for these Funds. Bank may act as agent or as principal for Company for mutual fund transactions. The Dreyfus Corporation and certain of its affiliates, which are not affiliated with Wells Fargo or Stephens, Inc., provide investment advisory, sub -advisory and(or shareholder services to the Dreyfus Funds. The Dreyfus Funds are sponsored and distributed by the Dreyfus Corporation, Member NYSE/S/PC. For more complete information about the Wells Fargo Money Market Funds or Dreyfus Money Market Funds, including fees and expenses that apply to an investment in them, obtain a current prospectus by contacting your Treasury Management sales officer, relationship or other manager or Institutional Brokerage & Sales representative. Please read the prospectus carefully before investing. Money market mutual funds seek to preserve the value of your investment at $1.00 per share; it is possible to lose money by investing in the money market mutual funds. 3. Eurodollar Sweep. Funds invested in the Eurodollar Sweep account are not domestic bank deposits, are not insured by the Federal Deposit Insurance Corporation and are not guaranteed by the United States government or any agency thereof. 4. Repurchase Agreements. Repurchase Agreement transactions are obligations of, but not deposits with, the repurchase counterparty (Bank or affiliates). 5. Government Sponsored Enterprises rGSE"). Bank will act as principal for all GSE transactions. Discount notes and other short-term obligations issued by GSE's are obligations of their respective issuers. The obligations of such issuers are not obligations of, nor are they guaranteed by the United States of America. B. DESIGNATION OF INVESTMENT INSTRUMENTS Company designates the following investment instruments (Select only one per checking account): ❑ Yes ❑ No OVERLAND EXPRESS SWEEP (Wells Fargo Overland Express Sweep Fund) ❑ Yes ❑ No INVESTACCOUNT. In addition to this Acceptance and the Service Description, a Master Repurchase Agreement must be completed and signed. ❑ Yes ❑ No EURODOLLAR SWEEP ❑ Yes ❑ No CORPORATE CASH MANAGEMENT ACCOUNT rCCMA") In addition to this Acceptance and the Service Description, a Master Repurchase Agreement must be completed and signed. ❑ Yes ❑ No CORRESPONDENT FED FUNDS SOLD. In addition to this Acceptance and the Service Description, a Federal Funds Sale Agreement -Principal Only -Sweep letter must by completed and signed. 118 TM-1444 Acceptance of Services (Rev. 4/03) Page 3 of 4 59 CCMA INVESTMENT OPTIONS 1. You may select multiple investment options. If you do, please rank them in the order that you wish to invest your funds; for example, 1 for first, 2 for second, etc. Rank Mutual Fund (MF) choices higher than Govemment Sponsored Enterprise (GSE) choices. 2. If you do not wish to invest your funds with a particular issuer, please leave that issuer line blank. 3. If you select a MF issuer(s), then you must also select at least one GSE issuer. • Mutual Fund Investment Option Wells Fargo Cash Investment Money Market Fund Wells Fargo Treasury Plus Institutional Money Market Fund Dreyfus Treasury Prime Cash Management • Government Sponsored Enterprise Investment Option (Select at least one) Federal Farm Credit Bank rFFCB J Federal Home Loan Bank rFHLBJ Federal National Mortgage Association rFannie Mae') • Concentration Account Elections The Concentration Account, Interest Account and Specked Balance listed below are subject to the Corporate Cash Management Account Service Description. Concentration Account Name Account Number Specked Balance (if desired) Interest Account Name Account Number ((May be the Concentration Account) Agreed To and Accepted By. - Company: By., Name: Title: Date: 11,49 TM-1444 Acceptance of Services (Rev.4/03) Page 4 of 4 60 ATTACHMENT 2 S: BANKING SERVICES BID FORM CITY OF QUINTA PRO-FORMA"MATRIX SERVICEtNTHLY VOLUME UNIT COST•COST GENERAL ACCOUNT Account Maintenance With Check Retum 2 $10.0000 $20.0 Credits Posted 40 $1.1000 $44.0 Armored Car Refer to RFP for Detail DEPOSITORY Cash Deposited Night Dro /$1- Monthly Total SE 11,320 $0.0013 $15.0 Vault Deposit Adjustment 1 $5.0000 $5.0 Branch Checks Deposited On -Us 10 $0.0850 $0.8 Branch Checks Deposited Local Clead house 25 $0.0850 $2.1 Branch Checks Deposited Local 9 $0.0850 $0.7 Branch Checks Deposited Transit 19 .08501 $1.6 Branch Checks Deposited All Other 16 $0.0990 $1.5 Vault Checks Deposited On -Us 106 $0.08 $9.4 Vault Checks Deposited Local Cleadn house 237 $0.0850 $20.1 Vault Checks Deposited Local 12 $0.0850 $1.0 Vault Checks Deposited Transit 155 $0.0850 $13.1 Vault Checks Deposited All Other 326 $0.0850 $27.71 Foreign Item Deposited 1 $5.0000 $5.0 Retumed Items 6 $3.5000 $21.0 Retumed Items Special Instruction Maintenance 2 $1.0000 $2.0 Retumed Items S ial Instruction Per Item PAPER Image CD-ROM - Maintenance 6 DISBURSEMENT 1 $0.250 $30.0000 $1.5 $30.0 Image CD-ROM - Per Item 442 $0.0600 $26.5 Checks Paid Against Account 392 $0.1100 $43.1 Paid Checks Retumed with Statement 392 $0.0500 $19.6 Stop Payment -Phone 1 $10.0000 $10.0 Online Stop Payment 1 $5.0000 $5. Official Bank Check GENERAL Electronic Credits Posted 9 ACH SERVICES 8 $5.00001 _$0.00001 $45.0 $0.001 Electronic Debits Posited 21 $0.0000 $0.0 ACH Received Item 6 $0.0300 $0.1 ACH Originated - Addenda Rec 4 $0.0300 $0.1 Online ACH Base Fee 1 $25.0000 $25.0 Online ACH Batch Release 4 $4.0000 $16.0 Online ACH Same -Day Item 1 $1.0000 $1.0 Online ACH One -Day Item 4 $0.25001 $1.0 Online ACH Two -Day Item 190 $0.15001 $28.5gl 61 Tax Payment Service - Mo. Maintenance 1 $10.0000 $10.0 PC Tax Payment 2 $2.0000 $4.0 Tax Payment Fax Receipt 2 $2.0000 $4.0 Wells Tax Access Code WIRES. OTHER Incomin Domestic Wire 11 FUNDSTRANSFER SERVICES 5 $3.00001 $3.0 $7.0000 $35.0 Wire Template Storage 2 $0.0000$0.0 Online Outgoing Book Transfer 1 $5.0000 $5. Online Outgoing Domestic Transfer 10 $7.0000 $70.0 Manual Out oin Wire - Domestic INFORMATION Previous Day Balance Report 1 SERVICES 2 $7.0000 $60.00001 $7.0 $120.0 Previous Day Detail Report 2 $0.0000 $0.0 Previous Day Detail Per Item 450 $0.1000 $45.0 Online Inquiry 1 $0.0000 $0.0 Services .Sweep Sweeo Maintenance 1 $0.000 $0.0 Full Acct Recon - Maintenance 2 $50.0000 $100.0 Full Acct Recon - Input Per Item 392 $0.0000 $0.0 Full Acct Recon - Input Per Item Manual 1 $0.0000 $0. Full Acct Recon - Per Transmission 20 $0.0000 $0.0 Full Acct Recon - Optional Report 1 $6.0000 $6.0 Full Acct Recon - Per Item Reconcilement 392 $0.0400 $15.6 ACH Fraud Filter/Stop Review Per Account $5.000 ACH Fraud Filter/Stop Review Item Charge $1.0000 Check Image Retrieval Base Fee $10.0000 Check Image Retrieval Per Item -1st 15 Free $0.0000 Positive Pa - Maintenance 2 $0.0000 $0.0 Positive Pa - Exception Report 20 $0.0000 $0.0 Positive Pa - Exception Item 1 $0.5000 $0.5 Positive Pa - Exception Return Item 1 $10.0000 $10.0 Positive Pa - Photocopy/Image 1 $0.5000 $0.5 CEO Im Positive Pa Im a ONE ACH Set-up - Per ID TIME SET UP FEES 1 $0.5000 $43.0000 Waived ACH Fraud Filter Set Up 3 $10.0000 Waived Full Acct Recon - Per Acct 2 $100.0000 Waived Image CD-ROM - Per Acct 1 $25.0000 Waived Tax Payment Service - Per Acct 1 $10.0000 Waived On-line Services $0.0000 62 of9 COUNCIL/RDA MEETING DATE: December 2, 2003 ITEM TITLE: Denial of Claim for Damages Filed by Mitchell Clark - Date of Loss: November 5, 2003 RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Deny the Claim for Damages filed by Mitchell Clark, with a reported date of loss of November 5, 2003. FISCAL IMPLICATIONS: The total amount of the claim was $ 357.07. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: A claim was filed by Mitchell Clark with a reported date of loss of November 5, 2003 (Attachment 1). It was forwarded to Carl Warren & Co., the City's claims administrator. Carl Warren & Co. has reviewed the matter and recommends that the City Council deny the claim. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: �w 1 . Deny the Claim for Damages filed by Mitchell Clark with a reported date of loss November 5, 2003; or 2. Accept the claim, or some portion thereof; or 3. Provide staff with alternative direction. Respectfully submitted, Approved for submission by: Mark Weiss, Acting City Manager Attachment: 1. Mitchell Clark, Claim for Damages 123 2 ATTACHMENT 1 FILE WITH: CLAIM FOR DAMAGE CITY CLERK'S OFFICE City of La Quints TO PERSON OR PROPERTY CLAI4(fbJR, �5.�. P.O. Box 1159 La Quinta, CA 92253 Pi4 12: 4 6 INSTRUCTIONS 1. Claims for death, injury to person or to personal property must be filed not later than six months after the occurrence. (Gov. Code § 911.2.) C 1 Y O lk L O U IN T A IT Y C L E R XS OFFICE 2. Claims for damages to real property must be filed not later than 1 year after the occurrence. (Gov. Code § 911.2.) 3. Read entire claim form before filing. 4. See page 2 for diagram upon which to locate place of accident 5. This claim form must be signed on page 2 at bottom. 6. Attach separate sheets, if necessary, to give full details. SIGN EACH SHEET. TO: [Name of City] Date of Birth of Claimant: L& 6-t - Name of Lai nt; Occupation of Claimant: ' AJ 'T u �i Home Address of Claimant: City and State 4��C'lC7 CSC• �-Qkxkerk C k Home Telephone of Claimant: 3 6 U - MW Business Telephone of Claimant: Business Address of Claimant: City nd State -Zb ( �• Z� Z,7 Z. Give address and telephone number to which you desire notices or communications to be sent Claimant's Social Security No.: . regarding claim: 4Wto g-wk.t>e, Lx QwvvCki Ck When did D GE or INJURY occur? Names of any city employees involved in INJURY or DAMAGE: Date: - 6 Time: 3d If Claim is for Equitable Indemnity, give date claimant served with the complaint: Date: Where did DAMAGE or INJURY occur? Describe fully. and locate on diagram on reverse lido of this cheat Whoa nnnrnnrinfc niun eirnm n,%rn r. and address and measurements from landmarks: QSEr a'Am�� b�Q—. (fibvrR -30u43T� 53000 3—rwe LrW GRu6 NONhvle y 4 eAtt,L' C�V14VA 4aA *0s5317-re LJe sr Stir TAfc S-7'ecrape Lr /s o..J T,� Cis r 15i6L Describe in detail how the DAMAGE or INJURY occurred. -L-- W �S 1)¢xv %k1 kt N ors Kl 5a -J ,a r"), 0 rA ' G1, ►,-� "Cis Ei 1.Er-'T' LA"J e: �a p A O w( C Z-4> i' i �Ct---:` ; NJ,- o --Vny 'REv I IE v J Ali`% Q,aoJ - S-31 coS is m j v �6 s1tti 51 hp vF - - - 51 -- Why do you claim the city is responsible? 16 Describe in detail each INJURY or DAMAGE to L-N31EW M t a.-t-- W -41 5 K KZ`CWY I t ►OPA C4 op rNL (,ruck , SEE PAGE 2 (OVER) THIS CLAIM MUST BE SIGNED ON RE Efy I The amount claimed, as of the date of presentation of this claim, is computed as follows: Damages incurred to date (exact): Estimated prospective damages as far as known: Damage to property ..................... $ e •—► Expenses for medical and hospital care ..... $ Loss of earnings ........................ $ Special damages for ..................... $ General damages ....................... $ Total damages incurred to date .......... $ Total amount claimed as of date of presentation of this claim: $ Future expenses for medical and hospital care .$ Future loss of earnings ................ .$ Other prospective special damages ..........$ Prospective general damages ..............$ Total estimated prospective damages .......$ 3S7,c! Was damage and/or injury investigated by police? b If so, what city? Were paramedics or ambulance called? Al10 If so, name city or ambulance If injured, state date, tine, name and address of doctor of your initial visit WITNESSES to DAMAGE or INJURY: List all persons and addresses of persons known to have information: Name Address Name Address Phone Name Phone Address Phone DOCTOR AND HOSPITALS: Hospital Address Doctor Address Phone Doctor Address Phone Phone READ CAREFULLY For all accident claims place on following diagram name of streets, including North, aoddent by "A-1" and location of yourself or your vehicle at the time of the accident East, South, And West; indicate place of accident by "X" and by showing house by "13-1" and the point of impact by "X." numbers or distances to street comers. If City Vehicle was involved, designate by letler "A' location of City Vehicle when you first saw it, and by "B" location of yourself NOTE: If diag ms below do not fit the s� uation, attach hereto a proper diagram or your vehicle when you first saw City Vehicle; location of Cityvehicle at time of p P 9 signe by claimant. CURB to Claimant: .531 IDEW LK RKW Y S EWA K coad 0 y�nt personZ g on his behalf giving relationship Typed Name: f 0tr(q NOTE: CLAIMS MUSI &I SW 404Je--_ CURB --1 C. C k BE FILED WITH CITY CLERK (Gov. Code § 915a.) Presentation of a false claim is a felony (Pen. Code § 72.) 105 4 Nov 04 03 04s25p MAN (U:' l'R(m 14101t I. tNN, Pa VE:N r'Awr No ;?,1'IAAG FIESTA FORD INC NAIL t)t)1)t)c''; I NV# TERM PAY TY I'- E i :.;T TAX ORIG LNV# QTY 1,N E)::;(- LI:;,r I 243,07 7728123 13:; I'Ar�Tl; INVOI(:ham (804.3,9) t "I' C'l1:.; l 1 :-;ALE: f) �► t.) PRT ALI, c r or .3E1�1' Clo.s'r COMP NOTE MN ?-1307 Wrc.H 'M.IR ASY— • "QUOTE: ONLY- " r,I:;'I, .;ELI, 24:1. 07 243. 07 + rAX 126 5 Lo . 00 n �rS 48 x m0 z � U in It cr s l Q9 z ❑ O Sa J a Za .0 ui Q 4 to V yZ its WQ ❑ w 0 NOW 133NM t cm ❑ O O LL CK3 IRM M9111! a $ S €� ~ o eo °C o o 7 s VIW sae i3�lllA NN3t! )K)Ild a a W o .. 1 Y g ° S IB 'H3NIIA J� )CIYd cam„ ��$ o a wa W � g c o UP i,r 9 33)IM X33H0 °.° ❑ "3 33WIN8 - 311110Z! NOILD3dSIM 9orrS �+ 3M.f113s N011a3rNi 13f1i a , a .. NYA 3MM 31ULL r w Q b jib tliA� 9 3NgN3 MU ° a b J 02 ® M30NI1AO t 3NY 13 3M1 A"� € w g $� NOISSYML 331AM 3NRL 3\06 IMUL M0U81 19 � � � � W � g z S�3 33LVM SAS 9N W3 m J W C C V IIA c ��g E$ HSYM N o� MUM 33mm too ice If I W 12( T • d LZ T 8ZLL09L ami UIS3I J d6S r f0 Co 40 ^ON Cii!?ity� 4 44" COUNCIL/RDA MEETING DATE: December 2, 2003 Approval of a Request by the California Regional Water Quality Control Board to Utilize the Council Chambers on January 14, March 10, May 12, June 30, September 8, and November 10, 2004, 9:00 a.m. to 2:00 p.m. RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: 60 STUDY SESSION: PUBLIC HEARING: Approve a request from the California Regional Water Quality Control Board to utilize the Council Chambers on January 14, March 10, May 12, June 30, September 8, and November 10, 2004, 9:00 a.m. to 2:00 p.m. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The California Regional Water Quality Control Board has requested that the Council Chambers be made available for Regional Board meetings on the following days in 2004: January 14, March 10, May 12, June 30, September 8, and November 10. The request meets all the requirements of facility use as contained in the City's Guidelines. A complete application has been submitted (Attachment 1) for the City Council's consideration. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve a request from the California Regional Water Quality Control Board to utilize the Council Chambers on January 14, March 10, May 12, June 30, September 8, and November 10, 2004, 9:00 a.m. to 2:00 p.m.; or Jos 2. Do not approve the request from the California Regional Water Quality Control Board to utilize the Council Chambers; or 3. Provide staff with alternative direction. Respectfully submitted, Tom Hartung, Director of Kilding & Safety Approved for submission by: i Mark Weiss, Acting City Manager Attachments: 1. Application ATTACHMENT 1 ""'y' 4 ' `�'Q" Organisation: , CA ' Regiona_ter Quality Control Board jftrsou(s) In- Charge: Robert Perdue Phone: (760) 776-8938 jkddresx: 73-720 Fred Waring Dr. Ste. 100 Palm Desert, CA 92260 Facility Rwp".tlds City Council Chambers type of Zvlat: Public x private Vescription of Activity; Regional Board Meetings #Ate(z) of Uses Sew A Agenda Report Site of Groups lim, of use: Start (a.m. /D•m-) 9:00 a.m.Ffaish 2:0� • dotal louts of Use x $32,00_lhour i _N/A 4ertilicate *of Additional iWurad Attached' 41ty Insurance Requested: Fos paid: sue___-__ 114tundabl• Cleaning Deposit Paids ._... N/A l�assiou ioae ; $200 CiamcilL c.ber. (up to 53 people) _ $300 i1 C.ba�■beza (54 people plus) SS00 Ibtal paid s ...... - S .- N/A -- *a uadersigned hereby aqTee• to abide by the rules and regulations at the City of La Quints► relati bo us 1 is facilities. Dues signatures Title: Assistant Executive Of� ficer Drspos i t ]required Fort a A Deposit p/A N/A Returnod: Data. f �.._ !1s res.es eipiy tie a�tileatias aN tko .assaft.ot et iatenrtttes swot be as e!liesr eo tie ep oruw 4"M.asar-&". it fte rreef to sot as ettiear of the asssoi.aati.s for raid arplasatlea is ssre. as/sae ou t areaest otitees s+acaeri.esaea [sue mo fsw se e490. 1J COUNCIL/RDA MEETING DATE: December 2, 2003 ITEM TITLE: Adoption of a Resolution Granting Conditional Approval of a Final Map and Subdivision Improvement Agreement for Tract Map No. 31627, The Residence Club at PGA West, Nadador, LLC RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Adopt a Resolution of the City Council granting conditional approval of a Final Map and Subdivision Improvement Agreement (SIA) for Tract Map No. 31627, The Residence Club at PGA West, Nadador, LLC. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: Tract Map No. 31627 is generally located east of Jefferson Street and south of Avenue 54 (Attachment 1). This residential subdivision will consist of 33 single-family lots on approximately 21 acres (Attachment 2). On September 16, 2003, the City Council approved Resolution 2003-87 for Tentative Tract Map No. 31627. On November 23, 2003, the developer requested street name changes which are subject to the Fire Department, Police Department, and City staff approval. The developer has requested the City Council's conditional approval of the Final Map which will allow 30 days for completion of its processing. To date, the SIA (Attachment 3) has been executed by the developer but the associated securities have not yet been received. The Final Map is technically complete and is being routed for signatures. The developer expects to have the associated securities and all signatures will be in place within the time allowed for its conditional approval. As a result, City staff has prepared the Resolution which provides for conditional approval of the Final Map and SIA. The approval is contingent upon receipt within 30 days (January 5, 2003), of a technically correct Final Map, suitable for recording by the County Recorder, with all required signatures (except the City Clerk), associated securities, and City approval of the proposed street name changes. Once these items are received, the City Clerk will affix the City Seal to the Final Map and offer the Final Map for recording by the County Recorder. If any of the required items are not received by City staff within the specified time frame, the Final Map will be considered disapproved and will be rescheduled for City Council consideration only after all required items have been received. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council granting conditional approval of a Final Tract Map No. 31627, The Residence Club at PGA West, Nadador, LLC; or 2. Do not adopt a Resolution of the City Council granting conditional approval of a Final Tract Map No. 31627, The Residence Club at PGA West, Nadador, LLC; or 3. Provide staff with alternative direction. Respectfully submitted, 0 imothy . Jon on, P. E. Public Works Director/ City Engineer Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Vicinity Map 2. Tract Map 3. Subdivision Improvement Agreement RESOLUTION NO. 2003-(Clerk's Office will enter) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, GRANTING CONDITIONAL FINAL MAP APPROVAL OF TRACT MAP NO. 31627, THE RESIDENCE AT PGA WEST, NADADOR, LLC, AND AUTHORIZING A TIME EXTENSION FOR SATISFACTORY COMPLETION OF THE CONDITIONAL REQUIREMENTS TO VALIDATE THE APPROVAL WHEREAS, the City Council conducts only two regular meetings per month and the time interval between these meetings occasionally creates an undue hardship for business enterprises and individuals seeking approval of subdivision maps; and WHEREAS, the City Council, as a matter of policy, allows a subdivider to have City staff present the map for approval consideration when the requisite items necessary for final map approval are nearly, but not completely, finished thus yielding to the subdivider additional production time for preparation of those items; and WHEREAS, the subdivider has demonstrated to City staff and the City Council that it has made sufficient progress with items required for final map approval, and it is reasonable to expect the subdivider to satisfactorily complete the items, including City staff review time, within thirty (30) days without adversely impacting other ongoing work commitments of City staff; and WHEREAS, Section 66458(b) of the Subdivision Map Act grants the City Council broad authority to authorize time extensions regarding final map approval, or disapproval, upon receiving it for consideration; and WHEREAS, the City Council relies on professional City staff to review all required items for conformance with relevant requirements, and it is therefore appropriate for the City Council to approve the final map subject to review and confirmation of the required items by professional City staff, within a reasonable period of time as specified by the City Council. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, California, as follows: Section 1. The final map for Tract Map 31627 is conditionally approved provided the subdivider submits all required items on or before January 5, 2004. 3 1u3 Resolution No. 2003- Tract Map No. 31627, The Residence Club at PGA West Adopted: December 2, 2003 Page 2 Section 2. The City Council's approval of the final map shall not be considered valid until the City Engineer has signed the map indicating that it conforms to the tentative tract map, the Subdivision Map Act and all ordinances of the City. Section 3. The City Engineer shall withhold his signature from the map until the subdivider has completed the following requirements to the City Engineer's satisfaction. A. Place appropriate securities in accordance with the approved Subdivision Improvement Agreement. B. Finalize the final Tract Map, subject to the proposed street name change approval, and obtain all necessary signatures. Section 4. The City Clerk shall withhold affixing the City Seal to the map title page, along with her attesting signature, until the City Engineer has signed the map. Section 5. The time extension for satisfying the requirements of the conditional approval for this final map shall expire when City offices close for regular business on January 5, 2004. If the subdivider has not satisfied the requirements in Section 3, herein, by the expiration deadline, the final map shall be considered disapproved. Disapproval does not deny any rights the subdivider may have under the Map Act to resubmit the final map for approval, or disapproval. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 2nd day of December, 2003, by the following vote, to wit: AYES:Council Members (Clerk's Office will enter) NOES: None ABSENT: None ABSTAIN: None DON ADOLPH, Mayor City of La Quinta, California 4 1:' 4 Resolution No. 2003- Parcel Map No. 31627, The Residence Club at PGA West Adopted: December 2, 2003 Page 3 ATTEST: JUNE S. GREEK, CMC, CITY CLERK City of La Quinta, California (City Seal) APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California 5 135 ATTACHMENT 1 52nd. AVENUE 53rd AVENUE o z 54th AVENUE SITE O PGA WEST AIRPORT BLVD. T o � �.- WEISKOPF 58th AVENUE VICINITY MAP NOT TO SCALE ATTACHMENT 2. N THE CITY OF U Q UNTA, COUNTY OF RIVERSIDE, SPATE OF CALIRWa SHEEP 1 OF • SHEETS TRACT NO. 31627 RECORD01 SITFILED TM -DAY .,. BEING A SUBDIVISION OF LOTS 1 THROUGH 61, INCLUSIVE AND LETTERED LOTS A THROUGH 0 AND 0 THROUGH U. AT N. INBOOK OF MAPS, IEIL:LUStVE, OF TRACT NO. 29678, IN THE GUY OF LA QUINTI` AS SHOWN BY MAP ON FILE IN 8001C 332. PAGES 26 AT PAGE AT 1HE REQUEST OF 111E TFIROUGH 33 OF MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF RIVERSIDE COUNTY, CALJFQDK CITY CLM DF IHE CITY OF LA QUNTA ND. MDS CONSULTM OCTOBER, 2003 GW W. DOIOCH LL4003 FEE GARY L. ORSO. COUNTY RECORDER or DEPUTY SI8DrAM GUARARTEE Or FIDELITY NATXIIAL Im COMPAnY OWNER'S STATEMENT MET OWY STATE THAT VE ARE THE OWENS OF THE LAID INCLUDED 111H110 THE SUBDIVISION SHOW HEREON: THAT WE ARE THE OILY PERSONS MN M CONSENT IS NECESSARY TO PASS A CIEAR 711M TO SAD LAND. THAT WE CONSENT TO THE MAKING AND REC13ROM OF THIS SLIBOVISIOII AS SHOWN 1MIIIN THE 8STNC1IVE BORDER LINE. IE HEREBY DEDICATE TO TIE CITY OF LA WNTA AN EASEMENT FOR PUBLIC UTWTES AND FOR RIGHT OF INGRESS AND EGRESS OF SERVICE AND EMERGENCY VEHICLES OVER THOSE AREAS DESIGNATED AS LOTS A THROUGH E. INCLUSIVE. THESE AREAS ARE RETAINED AS PRIVATE STREETS FOR OURSELVES, OUR SUCCESSORS. ASSICIEES, AND LOT OWNERS WIINN IM TRACT. VIE HEREBY OEDICATE TO TIE CITY OF LA QLMNTA AN EASEIMFIIT FOR RIGHT OF INGRESS AND EGRESS OF SERVICE AND EMERGENCY VEHICLES OVER LOTS I AND T AS SHOWN. WE HEREBY DEDICATE TO THE 07Y OF LA OUINTA PUBLIC UTILITY EASEMENTS AS SHOMN IEREOH, TIE HEREBY OFFER FOR DEDICATION TO IM COACNELLA VALLEY HATER DISIIBCT E4993119 FOR DOME511C RATER LINE AM SANITATION PURPOSES OVER L075 A THROLM E INCLUSIVE. DESIGIAIED AS 'PRIVATE STREET'. TEE EASEMENTS SO DEDICATED INCLUDE THE ININT 70 ENTER UPON SAD LAIRS, TO SURVEY, CONSTRUCT, RECONSTRUCT. LAY. RELAY, MAINTAIN, OPERATE, CONTROL. USE AND REMOVE PWELINM FIXTURES AND APPURTENANCES, AND TO REMOVE OBAM INTERFEINNG MM 1HE CON51RUC7XK OPERATION AND MAINTENANCE THEREOF. THERE K ALSO OFFERED FOR AN EASEMENT FOR INGRESS AND EASEMENT OVER LOT 0. THERE ARE ALSO OFFERED FOR DEDICATION AS EASEMENT OVER LOT 21. A LOT W AND DOMESTIC WATER! SANITARY SEWER EASEMENTS WE HEREBY OFFER FOR DEDICATION TO THE IMPERIAL IRRIGATION DISTRICT, AN EASEMENT AWACENT TO LOTS A 1NMOLM E, MUS1VE, AS SHIONN ON SAID MAP, FOR THE EXCAVAlICK LAYING, CONSTRUCTION. INSTALLATION. MANTENANCL OPERATION, INNO Ift REPAA, RUV& ENT M10 REMOVAL OF ELECIAICAL LINES, WIVES. CABLES, DUCTS. SUPPORTS, FD WdM FAC UIIES AND APPURTENANCES. 11TH THE RXi1T OF WORBI AND EGRESS OVER AND MBAR SAME FOR MAINTENANCE, OPERATION AND EMERGENCY 1R11CLES. WE HERBY RESERVE LOTS F 1 1R000H X; NOMSVE, FOR OPEN SPACE. LANDSCAPING, MANIEIIAICE AND RECREATIONAL PUPPOWS FOR THE t01E BENEFIT OF OUIISEL.VES, OUR SUCCESSORS, A59ONMS AND LOT OMIERS IBTIHN THIS TRACT. TIE HERBY RESERVE TIE PRIVATE S70RU DRAIN EASEMENTS SHORN IEIEON FOR OURSELVES, 00 SUCCESSORS. ASSIGNEES AND LOT OWNERS VAMN IMS TRACT. NADADOR, LLC A UMflEO UAILLITY COMPARY BY TERRY MANL EY MANAGING MUM" HADADOR, LLLC NOTARY ACKNOWLEDGMENT STATE Of CN.FOIWA )SS COUNTY OF j ON PHIS DAY OF 2003. BEFORE ME A NOTARY PUBLIC N AND FOR SAID STATE PERSONALLY APPEARED PERSONALLY NNOWN TO MEAROVED ON TIE BASIS OF SATISFACTORY EWENIDL TO IR THE PERSONS 11101E NAMES ARE SUBSCRIBED TO THE MTHMN INSTRUMENT AND ACIDION EDGED TO ME THA7 THEY DECUTEO IHE SAYE N THOR AUAIORRED CAPACITFS, AND THAT BY 114]R SIONAILWa ON THE NSTRWENT THE PERSONS ON THE ENTITY UPON BEHALF OF MICH THE PERSONS ACTED, EIECIITF.D IRE WS7RUMENT. MHTNESS MY HARD: SONAIUAL, MY PRINCIPAL RACE OF BUSINESS NOTARY PUBLIC N AND FOR SAID STATE 15 N COUNTY MY CONMISSNN EXPIRES SIGNATURE OMISSIONS PURSUANT TO SECD011 $6435 E THE SURIVSION MAP ACT, 71E SCHATURES OF THE FOLUD" DOM OF EASEMENTS AND/OR OVER NTEIESTS HAVE IEEN D1IRIED: A ISBT O WAY AID EASEMENT MWIED TO COACHL A 1DMLEY COWRY WAU BLSBICT N FAVOR Or I E PUBLIC FOR PUBLIC ROADS AN INOIIS OF WAY, MVATE EASIMEIM AND EARTHS OF WAY M ROADS, PIPET S. WIC ES. AND COIIITS OIL OWER. UNDER OR AMOSS 1HE NEfOR OESOIBED PNOPHIIVOINC FOR THE PURIM Or /IE1ES1 AND tDIEBs FROM ORO LANDS BY MEANS OF Suds ROADS AND FOR THE PURPOSE OF DO191111 C KWAIRNC AND DWESW MAIER TO So DMpR LANDS BY MEANS W WCH PIPE LIES, 017C7ES AND CONI U M IERBRAL 1189410NE COWANY W CAXFOMk A COIPORAWN. HO TEA OF EASEMENTS) FOR UIDF1010140 CODUTS, CABLES, MARES AND APPURTDIANCa FOR ALE TRANSMSSIN OF EAECTNC 800 FOR COldWWAAON AND ODD PU RM RC01DED .AIL.Y 7. 1111111. AS NS7RUMENT MCI. 15MI: FOR ANY AND ALL PRESENT OR FURK TE OROIE AEIAIM W% RECORDED DE CEMBER IIL 15/L AS MADUI N NO. 3201% AND FOR ELECIROIBL SIMMONS SITE. WORDED .MBAIARY 34 15M AS RIVIUME MT At 36431% ALL OF MOM RECODL IMPEIIAL MWAAON OISTIICT. A PUBUC AGENCY Of THE STAIE OF CAUFORIA, NOUDERR OF EASEMENTS) FOR UNOMPROM afCTRICAL POOH LINE AND NECESSARY IfEVICI m ARD APPURIEMAN= BEODROED OL4L2)ER 16, INS. AS RRIRIW NCI. 2mm W OFFICIAL IECOID9. CATE OF ACCEPTANCE I HEREBY CERTFY MAT UNDER 11E AUINOIOTY GRANTED 70 ME BY THE BOARD OF DIFECTCRS OF THE IMPERIAL MRIC.A11014 D151RICT, PER RESOLUTION NO. 15-21X DATED MARCH 22, 1990. INAT 1 ACCEPT ON BEHALF OF SAID DISTRICT, ITS SUCCESSORS OR ASSIGNS. THE DE ICA710N OF EASEMENTS FOR ELECTRICAL POWER FACILITIES AS OFFERED, M M M. DATED: or JIM IELLEY SUPERASO, REAL ESTATE IMPERIAL IRRIGATION OISRICT SURVEYOR'S STATEMENT 7#99 MAP WAS PREPARED By ME OR UNDER MY DIRECTION AND E BASED UPON A FIELD iURYEY N CONFORMANCE IM IM REQUIREMENTS OF THE SUBDINSION MAP ACT AND LOCAL OROWWCE AT IM REOUEST OF MAQADOR, LLC ON AUGUST. 2003. 1 HEREBY STATE THAT ALL SMAGMTS ARE OF THE CHARACIER AND OCCUPY THE PORTIONS I DICAIM OR INAT THEY ARL BE SET N WON POS1110NS, AND THAT SAID MONUMENTS AWE SUFFICIENT TO ENABLE THE SURVEY TO BE RrMACW. 1 HEREBY STATE GNAT THIS FINAL MAP SUBSTANTIALLY CONFORMS 70 THE CONDI1100NALLY APPROVED TENTATIVE MAP. DATE: , 2OD3 t GARY W. DOWN L.S. 4093 EW. 2/30/05 LL = R 4 M-" tt 0 CITY SURVEYOR'S STATEMENT I HEREBY STATE THAT I HAVE EXAMINED THE MEIN NAP OF IRAC7 NO, 31127 CONSISTING OF EIGHT (1) SIEiTS AND I AM SAIISFEO 1HAT SAID MAP a WXmFCALLY CORRECT. DATE: , 2m ERIC A. N1SDN P.LS. SSB3 EXP. 913CAS ACIDIC CITY SURVEYOR CITY ENGINEM STATEMENT 1 HEREBY STATE MAT 1 HAVE EXAMINED ED THE W M MIIEXED MAP OF TRACT HM 31627 CONMYING Of EIWW (5) SHEET$ THAT 111 SUIDIVISON S110MI MEW R SIIBSTMIWLT IFE SAME AS IT APPEARED ON THE 1ENTAIVE MAP AND NIY APPR01kD ALMAIIOXI THEREOF; THAT ALL PROVISIONS W TW SIBDMSI011 MAP ACT AND ANY LOCAL. ORONAWBS APPLICABLE AT THE TIME OF APPROVAL OF THE TERTAIHIE MAP HAVE BEEN CMfvW WDM. GATE . 2003 TIMDIW RL .DNASSON R.C.E. 45W EXP. 12/31/05 CITY DEG NE R, Cm OF LA QUNTA CITY -WARS_ STA7EMp1T L JUNE S. CREEK, CITY CI.EIBL AND D-OFF00 OMW OF 1E CITY CavaL CIF IRE Cm OF LA OUITA► CALFOIBBA, HEREBY STATE INAT SAD CITY COURCL AT LDS WEOILAR MEETING MEETING HELD ON 21103 APPROVED 11E I1117NN NO OF 1RACT NO. 31027; AND itdffi THE EASF]ETITS FOR INGRESS AID EGRESS OF $RICE AND EMERGENCY VEHICLES OVER LOTS A 1IIOUOI E, NCLU9IVE, AND OVER LOW I AHD T. AS SHOWN; AND ACCEPTS THE PUBLIC U11L1TY EASDAEN73 AS OEOICATED HEREOIL DATED: CITY CLERK AND EK-OF = CLM OF THE CITY COUNCIL CITY OF LA WINTA TAX OOIiECTOR'S COWCATE 1 HEREBY CERTIFY THAT MCGRONG M THE RECORDS OF THIS OFFICE, AS W THIS DAIS WA ARE NO LENS AGAINST AE PROPERTY SHOMI ON T NE inm MAP FOR UNPAID STATE. CMM. MUNICIPAL OR LOCAL TAXES OR SPECIAL ASSESSIMIS COLLWm AS TAKES, EXCEPT TAXES OR SPECIAL ASSESSMENTS CINLECTED AS TAXES NON A LIEN, BUT NOT YET PAYABLE. WCH ARE ESTIMATED TO BE ! . PALL MCDOFNVIL DATE COUNTY TAX COLLECTOR DEPUTY TAX I HEREBY CERTIFY THAT A BOND N INE SUM OF !_NAB REEII W=10 AND FILED WITH THE BOARD OF SUPERVSORS OF THE COUNTY OF RIVERSIDE, CALIFORNIA, COIDITIDNED UPON THE PAYMENT Or ALL TAXES, STATE, COUNTY. MUSCPAL OR LOCAL. AD ALL SPECIAL ASSESSMENT COLLECTED AS TAXES. MNICH AT WE WIVE OF FLOG OF IM MN miN THE COUNTY RECORDER ARE A LIEN AGAINST SAID PROPERTY BUT NOT YET PAYABLE AND SAID BOND KAS KEN OILY APPROVED BY SAID BOARD OF SUPERVISORS, DATE: CASH TAX BOND NAICY ROMERO PALL MWON NE L CI MT OF THE BOARD OF SUPERVISORS COUNTY TAX COLLECTOR BY`. OEPIITY BY: DEPUTY CERTMTEOF ACCEPTANCE I HEREBY CM" IHAT UNDER MIINOITY GRANTED TO ME BY. M30WIIM NO. 76-24B, DATED SEPTEM BER IS, 11K I ACCEPT ON BEHALF OF TIE COAL ELLA VALLEY WATER WSOOCT 7W DEDICATION OF EASEiMDITS FOR DOMESAC W AT6R AND SANITATION PURPOSES, THE EASEMENT FOR INGRESS AND EGRESS OVER LOT 0. AND THE LLOW-OFF EASEMENT OVQ LOT 3L AANA FERNANDEZ, WCRRETART COACHEILA VALLEY WATER DISTRICT IN THE CRY OF LA QUANTA, COUNTY OF RNERSIOE, STATE OF CALIFORNIA SHEET 2 OF 8 SHEETS TRACT NO, 31627 BEING A 9 KIMSION OF Lots i 7HtOUGH 61. INCLUSIVE AND tETMW LOTS A THROUGH O AND 0 7HR000H U, BY INCLUSNE, OF TRACT NO 29W8. INCR PS. INTFE Y OF lA OONTA, AS SHOWN MAP ON FOE IN BOOK 332. PAOES 28 ,THROUGH 33 OF MATHE OFFICE OF THE COUKtY RECORDER OF RIANSDE OOUKlY, CALFORNIA. MOS CONSULTWG OCTOOM 2003 GARY W. DONICH LS.4693 NORTNNEST CORNER SECTION Is. NORTH OWRIER CORNER SECTION 15 T. IS.. R. X. S.B.M. FOUND 1' LP. W/RASTIC PLUG FOUND W RISK w 1. 3018 TAG STAMPED L.S. 3018. FI. USH PER P L lL i?— -5S — — — — — — — — — _PER P.1LB 1Y9/1!-SS — — — —I —r- -�; N WWII[ t SIX Hx AVENUE 54 SIX QGOR aw VIN_----.----- g Ir LOT 1 l 14,,+ AArs o�vE NORT IDr ° ' N.A.F. \� / I \ 82'' / \ 7 f I f tf n 16 it 21 .4zoo ' i 1 LUX `V \\ I \ r\ $ \ S I u I IS ty 'O /IUw Ulf 9 I\ 6 13 14 / 23 � 4� Im 0 44 1/ � I N v LWT \ I A LfF P I / \ Ls1loEwa. 6 "' RO, 7 scALE 1'_,Ro p ND00 A 10.00 FOOT EASEMFNr RNI —- ZI — —► —. IRpw eaftrol7ED T° \ �9- — /TRACT NO. 2D878 m- DSETIENT 10 cvlFJL Fox DoMEsm \ , 4T h V M8. 332 / 28-83 TO XCRY OF LA OUW FOR I \ i 1 NAP. / /i 1N5T. NO. 48T00 OF sE11lICE NO aHERGoIctiVEHICLES\ `{� m I R. 2/26/88 0 _ AC n wair PUllPOSw OEOV= TO \ i \ ; ' `--- , _ I � TRACT M. 20878 alr OF to GUNTA �I 1 I MB. 332 / 28-33 PU M F OF� � SM. N�� I I HOC. Ism. 3=10 AND 3N31. OJL I 1 r I I CURVE TABLE m- Z vi M, PER � IN IN= OiORE \ I 1 r� $ I No Data► NM Mc ua WN ® E040ESrms o F" EI IN I P lEss Arro I 1 isI _ f I I nw f�m mar txFri _ 1171r3r MW n1r 4M j 3 3mir 3140s low HIM I 4 3l21'1r suns mu, lstfl' �- now A an FOOT DOMMIC Nl1TEx I y a I S ! 21ra'SY leas am 31-V NNE D►lE116NT DRDRA M TO C.V W. L I I I I I 6 21r45V iff m rur 44x m- MOTES A am FOOT sMlufv mm F/aEHIUT 8WAIM 10 C.Y.MA. I I I 13s I I SURVEYOR'S NOTES • — INDICATES FOUND 1• I.P. VAIN METAL RSC STAMPED R.C.E. 1300S MUST) ig RW ' PER FARM MAP NO, 20M P.M.S. 12f/41-55. AND TRACE NO. 2fW74 � ,` � fI301YE 1 9 I ' Ms. M/2UNLESS-n uws OTHERWISE Volta � PAW) T ps) i Is— INDICATES FOUND 1' I.P. TAGGED LS 4624 FLUSH. PER PARCEL MAP NO. In D L 297M. PAX 127/80-8I AND TRACT NO, 21678. Mi. 332/25-33 UNI Lei . q tt OTFIERAISENOTED. t� lDi1 s�.01 4rM) r 4`71 �7-f/) / O — INDICATES SET 1' IF. TAGGED L3. 4M. FWSH. (51.rt) �; xz:i w` —" / p 1• 10 14PE TAGGED L.S. 4f11 RUSK OR SPIKE & WA Ek Ox LEAD TACK to = LS. MI3 IN CONCRETE TO SE SET AT ALL LOT CORIE]!SC OR IF LOT J. m ail / oD11NER FALLS ON FACE OF axe. LE40 AM W TAGGED L.S 4E13 N TOP , �i OF CURB ON A 0.25' OFFSET TO SE SET a ALL FRONT LOT E)tcEFt i P.R.C.! Wi ANY A SIKEF WiCN ME NOT lAi AT LC.-* E.C.'% CORNDIS NT MMOMIs SIDE LOT LNAND IS. TO a SET AT ALL CEMERLRE ERSDCR ONS. yL62 y� WS. E.C.1 MID ALL OW CENTF7 UNE POINTS OF CCIWROL HIR SS ORRR- BASIS OF BEARINGS YA WISE gym• THE BEARINGS SHORN TERM ARE SAM ON My / ALL YONUMET4TS sea `SET' SHALL SE SET IN ACCORDANCE11fT1 THE THE CENTERLINE OF AVENUE 64 AS SHORN ON PARCEL NAP N RG H. FILED N BOOK / MONUMENTATKUN AGREEMENT FOR THIS MAP, UNLESS DTHOIMSF NOTED. AT PAGES 60 THROUGHa1 OF PARCEL MAPS. / DETAIL ( )— iNOiCAIES MEAAUFEO t RECORD PER P.M. R9f7i P.M.B. 372/26-33 RECORDS OF RAERSCE COIW rf. CALIFORNIAN 60NG NDRTN Nf7a'tr [wSt_ f7SS3TEI SAlm -- SCALE 1•-SW THIS TRACT MAP CONTAINS 33 NUMBERED L073 AND 23 LETIERED LOTS LOT J IM TRACT MAP CONTAINS 21.312 ACRES Af 0 120 140 310 410 1Vv IN THE GOY OF LA QURNTA. COUNTY OF RNUSM SME OF CAL MIA SHM7 3 OF 8 SHEET5 TRACT NO, 311627 SONG A SUMMON OF LOTS 1 THROUGH 01. INCLUSIVE AND LETTERED LOTS A THROUGH 0 AND 0 'THROUGH U. INCUIBNE. OF TRACT NO. 2M76, IN THE CITY OF LA QUANTA. AS SHOWN BY MAP ON FLE IN BOOK 332, PAGES 26 THROUGH 33 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF RIVERSIDE COUNTY, C XORNA. MDS CONSULTING OCTOBER. 2003 Gw W. DOKICH L.SAM3 W Cx SE 1"-40 LLB LL- LLJ H R -p — -- -- — _ —-� f� i 's� QLsorENTs p- lk=TB A 1440 FM FA6'000 F MM OR= PLLMM DSWATDD TO wow DUdO m" Ot61MCT. wlml AM s om Puma AND \ m T1E COY OF LA GMA FOIL ww= �I NO 01� OF SUMCE AN DOWS CY �,1t ®- MpCAIES A TOAD MY (iA3L7M FOR C OF OLVILRYIM m p- .n1CA12s�A11 DOOM Fa niwu u1t111Y FtgP s, M FAran OF M. PER MST. � koL 137361. 3=10 " 36M. OR , ©- MWAM A iDAO W MUM FOR P11M/C UkRY PUPO M M FAMM OF LLD.. Pa ow. N0. 251M .O.IL Q- MI2CATES All EMDR FOR MESS AM a t3cllEl6 DEWAM TO C.Y.111D m- ML#CM A 20JO FOOT WMESI C IMM LACK FASEraMT DMICOM TO C.r.,/a. 1 �� ® MOD FM M EA MCMADO 90 TO QV WA sit j •� / `f ,LOT Y SEE SW 2 FOR SWPAVOWS I r� I MIA NM AND BASIS OF BFIWINIIS '#` + t Tii / 1 ND Ut2{'1T � e 1 CURVE TABLE , ' • t �1` w 817A ■APA MC IAI l j S rag 102w 2Ltr low T 13T3T 2uw 1 1 `• N 7224W JaW illy ` DOYESIC iMER AIO f�I 4 tA !. su00aNi>Ett�el bs w OLDrA1to i . • \ N MIA A'i' \ \ ''` � \ 0 20 a M) 12D Igo \ \ AVENUE 54 I IN THE Cliff OF LA QU M, COLMTY OF RNE MIX STALE OF CMMNIA SHEET 4 OF S SHEETS TRACT NO. 31627 BEING A SI.IB SION OF LOB 1 TH IMM 81. INCLt19NE " LETTM LOTS A THNtOM O AND 0 THROUGH U. INCLUSIVE. OF TRACT NO. 25878. IN THE CRY OF LA QUNTA. AS SHOWN BY MAP ON ME IN BOOK 332. PAGE'S 28 711R000H 33 OF MAPS. W THt: OFFICE OF THE COUNTY RECORDER OF RIVERsw COUNTY. CAuFORNtk MOS CONSULTING OCTOBER. 2003 GARY W. DOIOOH LS.4693 AVENUE 54 YINU �r ��- 1ux.r ' :I 1 I• LOT T 3w 0474 IfY 1 1:1 1 tile- pm4 lum At f 1' I>= NOW 1 10 1 �1 �--� IMIr _ r IS tola I --------- --- LOT ( ----- -- [ - w�12ROr WL00 � r OS73iE t r- _- --- r Q Oa1a At taaoQ l IMQ1•[ - MD.17.ar- - �� - -- 1 , ti Da IV I.OL91, S 79 KINGSBARN OR ' it •- �� la•+s� sub � �rllrtr 1.n• aan ys il�•T I --------- 1--------- i -,-MIr_I- L-_15•--- c $,+XI 1 �• 1 a# S;1 In �yy I y B 9 10I� 17 i 6° 18 19a20 V 1 zs ` -�-f 1M PNaAIE � LOT M r 1 LOT N Maw I Ml'ClGI 31 RM WAR Vl U14 r- t SaC or 1 Irlaat 15D0 Maw I I IOS W I M.1 N q]rlr E 2aSIr 1 N W31Vir E 2A.11' v air I IN ff3WIT E 117.711 s ��R11 I izly� CURVE TABLE Ill) am PAM Mc to 1 , r 1 16 2 121o•1S ! T,r � 11 'ti 1: ..• ; SON t� 1 �® S ♦T4M /'M AAI• aAlYlr 1 1' 1 id11'Ir ! 101' M MM 41V I' Irfaor 211M 4L7r iac w ar1.07M MY MY up 'IN�.c a 1:1ow totem' 4zm il7o E 15 e � r !�-p'- N armly I INS i 3T15'!!T 243r tnla�7' Mxlt'2% A.1rltir n or" um ZEN 13 t THIS Mm SIM / ♦ H I11T1f 40M 117ar IS rarif 41Dr 21.1a' ; is lTISW 24M 1517 12 I. +� �� o 1 15 24 1 SCAIE i's{y 3 PC aw 1 LW Art.-! MID SFW M y� tYP R./i �� b ARID 14 LOT 0 Mac (uNMMA 8M 1 zyl a-171.w L+at1 m- aaulEs A 1QOD FOOT D1fEYEM Fqt r4l- NOICAIM AN Dl9 M FOR rlMM 1A M AINIO Uril1Y rUllOiS MDIG1TEa TD rlfElaAE NID%TNN t�eflllCf PIIIIPDSi� N fA1gR OF Ml PfA NlT. ML 167351. ttmew AND sata. oR ®- EASEMDff To LVWa. FOR MIME ©- aaCM A IGM FMr LMBIDR FOR 111M AND SA1AWON f1RM= AND 10 7K an aF LA WM Troll UMMS Rl0 )C IIIaJIY PIRIPOSES N FAYOR OF ua• FEN Der. ND. 251010. OA. 27 AND IMM OF S IM MBO EM �]- tNDO= M EMOIDIT FOR RAW AND VD CLM EMM DMICAIM W C.Y11a. 0- NDICAIFS A 14M MOT MEW FOR Puauc OWN wlRfosEs DF17IMM TO ©_ MIZAIM A 20.00 FOOT DOM1SOt: LATER LK PS" OED010) M 0191.a CRY Of IA OUMA ®- NOICM A 2000.FOOT SANOARY SE M EASFWff DIOI = TO C.Mll GTR3 BNo B1 OBM / 28 SEE SHEET NO. 6 ° 20 ro aD 120 IN SEE SHEET NO. 7 N 10 1 .0 IN THE CITY OF LA QUINK COUNTY OF RNERSIDE, STALE OF CAUMNIA SHEET 5 OF 8 SHEETS TRACT NO. 31627 BEING A SUBDIVISION OF LOTS 1 THROUGH 61. INCWSIVE ANO LETTERED LOTS A THROUGH 0 A140 Q THROUGH U, INCLUSIVE. OF TRACT NO. 29876, IN THE CITY OF LA QUWA. AS SHOWN BY AIM ON FILE IN BOOK 33L PAGES 26 THROUGH 33 OF MAPS. IN THE OFFICE OF THE COUNTY RECORDER OF RIVERSIDE CMRM. CAL.IF•ORNU. IDS CONSULTING OCTOBER, 2003 GARY W. DOIOCH L.S.4693 of am! Neff) �C—�- 14 AVENUE 54 ol IIIWMISC�+awl 7151Wm 11243' n10 LOT T ( I Ch. 0391AR j*i aifti aemw L"and51• UP� i 1 ow Ly 11. a al p Fq od ` ere oo Il vsrSrE ' LOT I ' _� " r 1 R• Am av let. JLIC----- MPr�, tz _ —°—+"w°"-- A.ts I T 1. DD L.11 • I KIN « u pis;4Y Ito co fb 21 ! 20 / h 19 _ i oFnJla O 70 G�Md ,/ �c V. / 1 �4, Wtm --,N« WWII E Sella• A.tor IF Ilala.or •+4 wr A•,,�1��ay,r auw FAM39v N `g a q , 22 1 � 6 # 1j SCALE 1'-40' Air NsyFP,� l f CURVE TABLE ♦ 1,' % O1TA RNMIS LYE i f I mra um my 23 /' 2 30PI 344JIF Aomea) LOT 0 ! !` (uMOCAIP p / ,'SC /.� �I ,' COURSE TABLE 1 A N 31'S0'da'N W ' rm 24 �,' �+f4 �a +. 62 s' /.. ��• i� / Ar ;4 A-1354diLOT .M1CA10 A 10AD FDOT FIREMEN FOR ! o't �. .!• PUBLIC Imun PUNPm DOCIUEO TO 1>� E WPEIML nR1011TI0r1 DSW. �± `Jp ! O, 4• ; .' Y ,O� ; �C ��t'� ' ND SCALE ©- EASELEN TO CFOR COMES11C UPURPOSES MO 10 THE CRT OF LA OIANA FOR a4 MS AND EGRESS DF SERVICE AND EM26 ERGENCY ® PM1U A 10.00 Fool EASE" FOR ''• ` ' ! / PUBLIC UTRRT PURPOSES ocOrcM M C& Or LA 4MA p- NUCAIM AN OAS[MEN FOIY PLFRAC IMP ! % !. /' �C .¢ Y4 ! ` MOSES• / R. IN FMM OF G.TF.. PER NSF. NOS. 157351, 3=10 AND 3/439. OJI. ©- MCATES A 10A0 FMT FASDW FOR z ; / ` ¢ at Q PUBLIC VlmmPU r RPOSES W FAYMR OF 27 / I.I.Q. PER MST. NO. rom OR p- 00CM A 20.00 FDOF DOIESTIC WAM • . `C / LINE EASE)ADa DEDICATED 10 CY.W.D. 4Ti VMWATES A 20.00 FOOT SANIWIY SM Q7 / EASEIIENF DEDrauED To C.r,11.11. / SEE SHEET 2 FOR SURVEbM / D a0 40 w tm 160 HIM AND BASIS OF OEM= SEE - SHE NO. 7 wm-m �� 14.E M THE CITY Of LA OUINTA, COUNTY Of RNERSDE, STATE OF CAL MMIA TRACT NO. 31627 BEING A SUBOMSION OF LOTS 1 THROUGH 81, INCLUSNE AND LETTERED L07S A THROUGH 0 AND Q THROUGH U. OF � 29873,CITY OF E MAP NE COUN IN BOOK26 E TMOMM THROUGH MAPS. 7F THCOUNTY REOOROEERR OAF RNERSIDRML4-.MES ADS CONSULTING OCTOBER, 2003 QW W. DORICH LS.461113 SEE SHEET NO. 3 \ SEE SHW \ 13 s \ 3 s \ \ 2 M SHEET f OF B SliifTS \ \ w LOT 0 4o0 At for33 LOT F �. LOT Aun Al �r�\ S.i► \ NS �s WR4BP1lr am AM N a;:o c 1r11m' SCAM 1'-�O SSE, 1 D �' P��./S` F'� sq p tfj% CURVE TABLE \ A � •` i NO Dm1 Rua NBC LGr p \ * ! Y YI'1? SAW v 3 14i3rlV 24M iR9S \ • iti � - 1dY � �� �� �• s =/ S (3R01'N' 80 4S13►y \ r ♦ `ti � � i� � i c sar4f I61M 27AT \ m � LOT L� �, �6' � ( 14 14 $ f �'� � � 30 7 !]T44 tA.00 lT.DY' PARCEL 1 \ �°� �v� \ may$ \31 Vps PARCEL MAP NO. 20420 PMB 120 / 49-55 LOT P \��4N V!! 1• N \ p- NDIrATEs A 1aaD EOOr EAR MR DORM. TO \ p �� M EIS ©- uv EASEMENT TO C.vAL FORMOM DOBESTIC \ 4r \ -0�D N OSIiC[ an R TO IRE µCRRYOrr LA M i�ss aU a ARc t�:�'i' MD EGRESS OF SERVICE AND EYERODICY N \ © nMWAMuNA 10.00 Ur or WNW FOR \ \ � __ �--- � TRACTBNo. 2DO78 LA D- arc of auN'' � � � _ - AA& 322/ZB-93_ M C410 AN DMIX FOR MW MffMMM \ \ 351, SOD AND T3i4M. ORPOt S ©-`DOOM A 1a00 FOOT EASEMENT FOR \ ` ixty) URM PWMOSES INFAVOR OF \ L1A PER an. Na 2"M, O.R. ®- NIMAI S AN EASDOff FOR R=133 AND \ N.A.P. EG m omN•ATm To LYWA JINS7 ND. 49700 ©- LINE USEA DAA:M o°MMM oTO � \\ m REC. 2/2SAW [�- 0 018 A 20.00 FOOT SA aAff PSEKAT DE PWW TO CY.W.D. SEE SNEQ 2 FOR SURMOWS \ \ NOTES AND BASIS Of BEAMS o m •o so 120 fin SEE SHEET NO. 8 k��11r\MA�1017�K7�/M 10�A-Q 1�� 12 IN THE CRY OF LA GUNTA, COUNTY OF RNER K STATE OF CAUFORNIA SHEET 7 OF 8 SHEETS TRACT NO. 31627 BONO A SUBDIVISION OF LOTS 1 THROUGH 61. INCWSNE AND LETTERED LOTS A THROUGH 0 AND O 7HR000H U, INCLUSIVE, OF TRACT NO. 298M IN THE CITY OF LA GUNTA, AS SHOWN BY MAP ON FIE IN BOOK 332. PAGES 26 THROUGH 33 OF MAPS, IN THE OFFICE OF THE COUNTY REOORDER OF RIVERSIDE COUNTY, CN.FORNIA. IDS CONSULTING OCTOBER. 2003 CARP W. 0010CH L.S.4893 SEE SHEET NO. 5 ri mr SEE SHEET NO. 8 / / SEE SHMr Z FOR SURVEMn NDIES AND BW OF BFAfEM 0 10 40 eo I20 100 13 143 W THE CIHY OF LA WMA. CMITY OF RNEF= SPATE OF CNYDMU TRACT NO. 31627 BEING A SUBDIVISION OF L07S 1 THOUGH 61, INCLUSIVE AND LETTERED LOTS A THROLFtiH O AND 0 THROUGH U. INCLUSIVE, OF 7RACT NO. 29676, IN THE CITY OF LA OUIHTA, AS SHOWN BY IMP ON FLE IN BOOK 332. PAOES 26 THROUGH 33 OF MAPS. IN THE OFFlCE OF THE COUNTY RECORDER OF RIVERSIDE COUNTY, IOS CONSLL71NG OCTOOM 2003 CARP W. DOKICH LS.4093 SEE SHEET NO. 6 SEE SHEET NO. 730 �% 1st \` 31 ; /k, % %� LOT P 0% \ ', a�K NGSBARNS ORI \ LOT R � - -- \ an AL - — - � � K �— N amrww 2nm&-4ff4-F 83 \ ,o 4 , TRACT N0. =378, 332/28_-33 G NAP, INST. No. 48700 \ o H;���► REC.2/26/88 _ -� SCALE r-,o• \ o `TRACT NO. 20878 MB. 332/28-33 t 1 �1f 1 EMM (D- DIDIMB APMMF O S TO MAX MR F 0EOlCaW II IM IIWOATd1 DOWCr. I ®- FASE m W cum FOR DDMESTIC I �+ I WATER AM SANaAFOII PUPO9ES AND M TIIE Car OF u QW0 FOR NORM INO EMBS OF SfBYICE AND EMUMICT VDIM p- IOCA B A Tom root MIEIIr FOR ( O� l PLMLE crnr OF; a oEGla►TEo To T Q- Ne>WB AN ENDOW FOR PUIUC tmm Wpm NI FAVOR OF G M. PER NOT. I W,157 1. mmlo MD MIN. O.I. I vv O I ©- WOCM A Ion mar Ei12EYErlr FOR I i m I U.C. PER MR. NO. "101OA OA AM EONS OMUU TO MVATJ I I © WATER GIV LINE USEAEIrr OEDICAIED TO VLL 000013 A "M FOOT SWATANY SEWER W EASEMI)ff DEDICATED TO CY.WA I I I70 SEE SLEET 2 FOR SURVEYOR'S NOTES AND 91LSIS OF WFJVtl IM I I I o 20 0 w in Leo SHEET 8 OF 8 SHEETS 14 14 4- CITY of LA QvINTA ATTACHMENT 3 SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO. 31627 OFF -SITE IMPROVEMENTS THIS SUBDIVISION IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this day of , 20 by and between Nadador, LLC a Nevada Limited Liability Company hereinafter referred to as "Subdivider," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared and filed a final map or tract map (the "Map") of a unit of land in the City of La Quinta, County of Riverside, which unit of land is known as Tract Map No. 31627 (the "Tract") pursuant to the provisions of Section 66410, et sec. of the California Government Code (the "Subdivision Map Act"). B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private improvements (the "Improvements"). C. The Improvements have not been installed and accepted at this time. D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the Improvements as provided in Section 66462 of the Subdivision Map Act. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Improvement Plans. Prior to submittal of the Map for approval by the City Council, Subdivider shall furnish original improvement plans meeting the requirements of the City Engineer. 2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping, and other improvements required to be constructed or agreed to be constructed under this Agreement as listed in Exhibit "A", and shall bear the full cost thereof. The methods, standards, specifications, sequence, and scheduling of construction shall be as approved by the City Engineer. 3. Improvement Security. A. One class of security to be provided by Subdivider, hereinafter referred to as performance security," shall assure the faithful performance of this Agreement including construction of the Improvements, payment of Subdivider's fair share of Improvements which have been or will be constructed by others ("Participatory Improvements"), and payment of plan check and permit fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "warranty security," shall serve as a guarantee and warranty of the Improvements for a period of one year following the completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security prior to and as a condition of City Council approval of the Map. Subdivider shall provide warranty security after Improvements are complete and accepted by the City Council and prior to or concurrently with the final release of performance security. Warranty security shall not be required for Monumentation or Participatory Improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. As part of the obligation secured by each of the performance security, payment security and warranty security, and in addition to the face amount of each such security, each such security shall include and assure the payment of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing the obligations thereby r secured. 15 1 of 7 B. Improvement security shall conform with Section 66499 of the California Government Code and one or more of the following: 1) A cash deposit with City or a responsible escrow agent or trust company, at City's option. 2) Surety bonds, of the form specified in subsection 66499.2 of the California Government Code, issued by a surety or sureties listed in the U.S. Department of Treasury Circular 570 (latest version). 3) Certificates of deposit, in City's name, from one or more financial institutions subject to regulation by the state or federal government and having a financial quality rating of "A" or better and a commitment reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurer's office). 4) Irrevocable letters of credit, issued by one or more financial institutions meeting the requirements of Paragraph (3), pledging that the funds necessary to carry out the completion of the Improvements are on deposit, guaranteed for payment, and constitute a trust fund which is not subject to levy or attachment by any creditor of the depositor until released by City. Letters of credit shall guarantee that all or any portion of the funds available pursuant to the letters of credit will be paid upon the written demand of City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. The duration of any such letter of credit shall be for a period of not less than one year from the execution of the agreement with which it is provided and shall state, on its face, that the letter of credit will be automatically renewed until such time that City authorizes its expiration or until sixty (60) days after City receives notice from the financial institution of intent to allow expiration of the letter of credit. 5) A lien upon the subdivided property, if City finds that it would not be in the public interest to require the installation of the Improvements sooner than two (2) years after recordation of the final map or parcel map for which the Improvements are required. The lien shall provide a collateral value of three (3) times the estimated cost of the Improvements and shall include the power of sale of the real property, all buildings and improvements thereon, or that may be erected upon or made thereto, together with all hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the property shall be established at Subdivider's expense through an appraisal approved by City. 6) An instrument of credit from an agency of the state, federal or local government, when any agency of the state, federal, or local government provides at least Twenty Percent (20%) of the financing for the Improvements. 7) When Subdivider is a non-profit organization, security may be negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor of City, as specified in Section 16430 of the California Government Code, deposited, at City's option, with City or a responsible escrow agent or trust company. C. All securities shall be furnished in accordance with the provisions of Exhibit A. The amount of the performance security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including payment of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative of the City Engineer. The amount of Payment security shall equal the amount of the amount of performance security, except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Warranty security shall equal Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At the time of submittal of security, Subdivider shall pay to City administrative fees applicable to the form of security provided. Administrative fees shall apply to the subdivision (final map, parcel map or waiver of parcel map) rather than to individual security instruments. The fees shall be paid separately for each different form and/or source (surety or financial institution) of security initially submitted and for substitution of securities but shall not be required for submittal of 16 1 t 11r 2of7 warranty security if the warranty security is of the same form and from the same source as the performance security it replaces. Administrative fees for security shall be as follows: 1) For certificates of deposit, bonds and letters of credit as described in Paragraphs 2), 3) and 4) of SECTION 3.13., which require the establishment of evidence of the reliability of the surety or financial institution, the administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.B., for which City will prepare lien agreements and subordination agreements, administer valuation of the real property and administer the agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider shall pay to City an administration fee of One Half of One Percent (0.5%) of the estimated cost of the improvements secured but not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00). 3) For other forms of security listed in Section 3 B, above, there will be no administrative fee. E. Participatory Improvements, if any, are identified in Exhibit A. Security for Participatory Improvements shall remain in place until the Participatory Improvements are constructed and actual costs are known and paid by Subdivider, or until Subdivider pays to City the estimated cost of the Participatory Improvements, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of security guaranteeing Participatory Improvements. If Subdivider fails to deposit said cash within 30 days of the date of the written demand from City, City may present a written demand to Subdivider's Surety for payment of said cash and Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, including non-payment of premiums, modifications of this Agreement and/or expiration of the time for performance stated in this Agreement, without express authorization from City unless the surety provides City with sixty (60) days written notice by registered or certified mail, return receipt requested. G. Security shall be released in the following manner: 1) Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the Improvements subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance security as work progresses, upon application by Subdivider. However, no such reduction shall be for an amount less than Ten Percent (10%) of the total performance security provided for the faithful performance of the act or work. In no event shall security be reduced below that required to guarantee the completion of the act or work or obligation secured, plus Ten Percent (10%). The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement. 3) Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory Improvements. 4) If City receives no notice of recorded claims of lien, labor and materials security shall be released in full 90 days after final acceptance and/or approval by the City Council, of the Improvements. If City receives notice of any recorded lien, the provisions of the Subdivision Map Act shall apply. 5) Warranty security not utilized during the warranty period shall be released one year after final acceptance or approval by the City Council of all Tract Improvements. However, if at the end of the one-year warranty period, there are one or more outstanding requests by City for performance of work or provision of materials under the terms of the warranty, warranty 17 3of7 security shall be retained until the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Required. Prior to commencing any phase of work, Subdivider shall obtain all permits required for that phase of work and pay all required fees. Work performed under a permit or permits shall comply with all provisions of the required permits. 5. Off -site Improvements. When the construction of one or more of the Improvements requires or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best efforts purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful, despite its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing that City attempt to acquire such real property. City may, but is not required to, agree to attempt to acquire such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written agreement in a form acceptable to the City Attorney. Said separate agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property. Any unexpended portion of said advance shall be refunded to Subdivider. Any additional funds required for acquisition of the real property shall be paid by Subdivider to City upon the conveyance of said real property to Subdivider. In no event shall the failure of Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdivider's obligation to construct the applicable improvement pursuant to this Agreement or the Conditions of Approval. 6. Completion of Improvements. Subdivider shall begin construction of the Improvements within ninety (90) days and shall complete construction within twelve (12) months after the approval of this Agreement. Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set forth in Exhibit A. Failure by Subdivider to begin or complete construction of the Improvements within the specified time periods shall constitute cause for City, in its sole discretion and when it deems necessary, to declare Subdivider in default of this agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements in response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdivider's obligations hereunder. 7. Force Maieure. In the event that Subdivider is unable to perform within the time limits herein due to strikes, act of God, or other events beyond Subdivider's control, the time limits for obligations affected by such events will be extended by the period of such events. 8. Time Extension. Subdivider may make application in writing to the City Council for an extension of time for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny the request or conditionally approve the extension with additions or revisions to the terms and conditions of this Agreement. As a condition of the time extension, Subdivider shall furnish securities, similar in form and substance to those required in SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain incomplete at the time of the extension, and to provide warranty security on completed Improvements. 9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments in accordance with the provisions of Sections 66495, et sec. of the Subdivision Map Act and of the La Quinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments have been set, evidence of payment and receipt thereof by the engineer or surveyor setting the monuments, and intersection monument tie -outs for monuments set in public streets. 10. Final Acceptance of Improvements. At the completion of construction and prior to acceptance of the Improvements by City, Subdivider shall submit a request for final approval by City. The request shall be accompanied by any required certifications from Subdivider's engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority for improvements required by this Agreement or the Conditions of Approval, and any required construction quality documentation not previously submitted. 1s 12$ 4 of 7 Upon receipt of said request, the City Engineer or a duly -authorized representative will review the required documentation and will inspect the Improvements. If the Improvements are determined to be in accordance with applicable City standards and specifications, and .as provided herein, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the Improvements by the City Council. 11. Revisions to Plans. When the Improvements have been inspected and approved by the City Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be clearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to practice in California, and the plans shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the Improvements by the City Council, against any defective work or labor done, or defective materials furnished, and shall repair or replace such defective work or materials. 13. Release of Security. City shall retain and release securities in accordance with the provisions of Section 3 of this agreement. Prior to the release of payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient to show claims of lien, if any, that may affect the amount of payment security released. 14. City Right to Cure. If Subdivider fails to perform any obligation hereunder and such obligation has not been performed within sixty (60) days after written notice of default from City, then City may perform the obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and reasonable attorney's fees incurred by City in enforcing such obligation. In cases of emergency or compelling public interest, as determined by the City Engineer, the requirement for written notice of default and/or the passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect. 15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents, representatives, executors, administrators, guarantors, heirs, and assigns, and agrees to indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with Subdivider's performance herein under, including costs of suit and reasonable attorneys' fees. 16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s) is (are) incorporated herein by reference, the provisions in the Conditions of Approval shall remain in effect and shall control. 17. Severability. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect. 18. General Provisions, A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated on the return receipt. Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. 19 149 5of7 C. Neither party to this Agreement relies upon any warranty or representation not contained in this Agreement. D. This Agreement shall be governed by and interpreted with respect to the laws of the State of California. E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party. F. Any failure or delay 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 provided for hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 (760) 777-7075 Thomas P. Genovese, City Manager ATTEST: City Clerk Nadador, LLC. 78-120 Calle Estado, Suite 203 La Quinta, CA 92253 (760) 564-8888 By:_ Title: By: Title: Reviewed and Approved: City Engineer Approved as to Form: Date Date Date Date City Attorney Date 201- 0 Exhibit A SECURITY — TRACT MAP NO. 31627 OFF -SITE IMPROVEMENTS Improvements designated as "Participatory" have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases shall be for not less than ten percent (10%) of the total performance security for the tract and shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. Partial releases of performance security will be evaluated and may be granted, in whole or in part, by the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed and the value thereof, shall be made in writing to the City Engineer. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. Improvement Description Street Improvements Domestic Water Totals Standard 10% Contingencey Total Construction Cost Professional Fees, Design 10% Professional Fees, Const 10% No Plans Contingency 25% Bond Amount Performance Labor & Materials $ 95,045 $ 95,045 $ 284,299 $ 284,299 $ 379,340 $ 379,340 $ 37,930 $ 37,930 $ 417,270 $ 417,270 $ 41,730 $ 41,730 $ 41,730 $ 41,730 $ 104,320 $ 104,320 $ 605,100 $ 605,100 w 21 JI 7of7 CITY OF LA QUINTA SUBDIVISION IMPROVEMENT AGREEMENT TRACT MAP NO. 31627 ON -SITE IMPROVEMENTS THIS SUBDIVISION IMPROVEMENT AGREEMENT (the "Agreement") is made and entered into this day of , 20 by and between Nadador, LLC. a Nevada Limited Liability Company hereinafter referred to as "Subdivider," and the City of La Quinta, a municipal corporation of the State of California, hereinafter referred to as "City." RECITALS: A. Subdivider has prepared and filed a final map or Tract map (the "Map") of a unit of land in the City of La Quinta, County of Riverside, which unit of land is known as Tract No. 31627 (the "Tract") pursuant to the provisions of Section 66410, et sec. of the California Government Code (the "Subdivision Map Act"). B. Prior to approval of the Map, Subdivider is required to install or agree to install certain public and private improvements (the "Improvements"). C. The Improvements have not been installed and accepted at this time. D. It is therefore necessary that Subdivider and City enter into an agreement for the installation of the Improvements as provided in Section 66462 of the Subdivision Map Act. NOW, THEREFORE, it is agreed by and between the parties hereto as follows: 1. Improvement Plans. Prior to submittal of the Map for approval by the City Council, Subdivider shall furnish original improvement plans meeting the requirements of the City Engineer. 2. Improvements. Subdivider shall construct the public and private street, drainage, utility, landscaping, and other improvements required to be constructed or agreed to be constructed under this Agreement as listed in Exhibit "A", and shall bear the full cost thereof. The methods, standards, specifications, sequence, and scheduling of construction shall be as approved by the City Engineer. 3. Improvement Security. A. One class of security to be provided by Subdivider, hereinafter referred to as "performance security," shall assure the faithful performance of this Agreement including construction of the Improvements, payment of Subdivider's fair share of Improvements which have been or will be constructed by others ("Participatory Improvements"), and payment of plan check and permit fees. A second class of security to be provided by Subdivider, hereinafter referred to as "payment security," shall assure the payment of the cost of labor, equipment and materials supplied to construct the Improvements. A third class of security to be provided by Subdivider, hereinafter referred to as "warranty security," shall serve as a guarantee and warranty of the Improvements for a period of one year following the completion and acceptance of the Improvements. Subdivider shall furnish performance and payment security prior to and as a condition of City Council approval of the Map. Subdivider shall provide warranty security after Improvements are complete and accepted by the City Council and prior to or concurrently with the final release of performance security. Warranty security shall not be required for Monumentation or Participatory Improvements. However, the City may utilize Monumentation Security for performance of or payment for the work in accordance with the Subdivision Map Act. As part of the obligation secured by each of the performance security, payment security and warranty security, and in addition to the face amount of each such security, each such security shall include and assure the payment of costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by City in successfully enforcing the obligations thereby secured. 22 1 0 1 of 7 B. Improvement security shall conform with Section 66499 of the California Government Code and one or more of the following: 1) A cash deposit with City or a responsible escrow agent or trust company, at City's option. 2) Surety bonds, of the form specified in subsection 66499.2 of the California Government Code, issued by a surety or sureties listed in the U.S. Department of Treasury Circular 570 (latest version). 3) Certificates of deposit, in City's name, from one or more financial institutions subject to regulation by the state or federal government and having a financial quality rating of "A" or better and a commitment reliability rating of "R-2" or better on the Investment Data Exchange (of the Los Angeles County Treasurer's office). 4) Irrevocable letters of credit, issued by one or more financial institutions meeting the requirements of Paragraph (3), pledging that the funds necessary to carry out the completion of the Improvements are on deposit, guaranteed for payment, and constitute a trust fund which is not subject to levy or attachment by any creditor of the depositor until released by City. Letters of credit shall guarantee that all or any portion of the funds available pursuant to the letters of credit will be paid upon the written demand of City and that such written demand need not present documentation of any type as a condition of payment, including proof of loss. The duration of any such letter of credit shall be for a period of not less than one year from the execution of the agreement with which it is provided and shall state, on its face, that the letter of credit will be automatically renewed until such time that City authorizes its expiration or until sixty (60) days after City receives notice from the financial institution of intent to allow expiration of the letter of credit. 5) A lien upon the subdivided property, if City finds that it would not be in the public interest to require' the installation of the Improvements sooner than two (2) years after recordation of the final map or parcel map for which the Improvements are required. The lien shall provide a collateral value of three (3) times the estimated cost of the Improvements and shall include the power of sale of the real property, all buildings and improvements thereon, or that may be erected upon or made thereto, together with all hereditaments and appurtenances thereunto belonging, or in any wise appertaining, and the reservations, remainders, rents, issues, and profits thereof. The collateral value of the property shall be established at Subdivider's expense through an appraisal approved by City. 6) An instrument of credit from an agency of the state, federal or local government, when any agency of the state, federal, or local government provides at least Twenty Percent (20%) of the financing for the Improvements. 7) When Subdivider is a non-profit organization, security may be negotiable bonds, of the kind approved for securing deposits of public moneys with City or in favor of City, as specified in Section 16430 of the California Government Code, deposited, at City's option, with City or a responsible escrow agent or trust company. C. All securities shall be furnished in accordance with the provisions of Exhibit A. The amount of the performance security shall equal One Hundred Percent (100%) of the estimated cost of constructing the Improvements, including payment of plan check and permit fees, as estimated by the City Engineer or a duly authorized representative of the City Engineer. The amount of Payment security shall equal the amount of the amount of performance security, except as otherwise set forth in Exhibit A, and shall be furnished as a separate security. Warranty security shall equal Ten Percent (10%) of the amount of performance security except as otherwise set forth in Exhibit A. D. At the time of submittal of security, Subdivider shall pay to City administrative fees applicable to the form of security provided. Administrative fees shall apply to the subdivision (final map, parcel map or waiver of parcel map) rather than to individual security instruments. The fees shall be paid separately for each different form and/or source (surety or financial institution) of security initially submitted and for substitution of securities but shall not be required for submittal of 15 3 23 2of7 warranty security if the warranty security is of the same form and from the same source as the performance security it replaces. Administrative fees for security shall be as follows: 1) For certificates of deposit, bonds and letters of credit as described in Paragraphs 2), 3) and 4) of SECTION 3.13., which require the establishment of evidence of the reliability of the surety or financial institution, the administrative fee shall be One Hundred Fifty Dollars ($150.00). 2) For liens on real property as described in Paragraph 5) of SECTION 3.B., for which City will prepare lien agreements and subordination agreements, administer valuation of the real property and administer the agreements over the life of the lien, all of which require legal assistance and financial advice, Subdivider shall pay to City an administration fee of One Half of One Percent (0.5%) of the estimated cost of the improvements secured but not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00). 3) For other forms of security listed in Section 3 B, above, there will be no administrative fee. E. Participatory Improvements, if any, are identified in Exhibit A. Security for Participatory Improvements shall remain in place until the Participatory Improvements are constructed and actual costs are known and paid by Subdivider, or until Subdivider pays to City the estimated cost of the Participatory Improvements, and shall guarantee the reimbursement by Subdivider of Subdivider's share of the cost of the Participatory Improvements. Payment security and warranty security shall not be required for Participatory Improvements. Upon written demand from City, Subdivider shall deposit cash with City in lieu of or in replacement of security guaranteeing Participatory Improvements. If Subdivider fails to deposit said cash within 30 days of the date of the written demand from City, City may present a written demand to Subdivider's Surety for payment of said cash and Subdivider's Surety shall pay to City the lesser of: 1) the amount demanded, or 2) the amount of the security. F. Security shall not expire, be reduced or become wholly or partially invalid for any reason, including non-payment of premiums, modifications of this Agreement and/or expiration of the time for performance stated in this Agreement, without express authorization from City unless the surety provides City with sixty (60) days written notice by registered or certified mail, return receipt requested. G. Security shall be released in the following manner: 1) Performance security shall be released upon the final completion and acceptance or approval, by the City Council of the Improvements subject to the provisions of paragraph B. 2) The City Engineer may authorize partial reduction of performance security as work progresses, upon application by Subdivider. However, no such reduction shall be for an amount less than Ten Percent (10%) of the total performance security provided for the faithful performance of the act or work. In no event shall security be reduced below that required to guarantee the completion of the act or work or obligation secured, plus Ten Percent (10%). The City Engineer shall not allow more than two partial reductions of security furnished for any improvement agreement. 3) Participatory Improvement security shall be released upon payment by Subdivider of Subdivider's share of the cost or estimated cost of the Participatory Improvements. 4) If City receives no notice of recorded claims of lien, labor and materials security shall be released in full 90 days after final acceptance and/or approval by the City Council, of the Improvements. If City receives notice of any recorded lien, the provisions of the Subdivision Map Act shall apply. 5) Warranty security not utilized during the warranty period shall be released one year after final acceptance or approval by the City Council of all Tract Improvements. However, if at the en of the one-year warranty period, there are one or more outstanding requests by City f v 4 performance of work or provision of materials under the terms of the warranty, wBcranty L 3of7 security shall be retained until the outstanding requests are satisfied or until Subdivider has made other arrangements satisfactory to the City Engineer. 4. Permits Required. Prior to commencing any phase of work, Subdivider shall obtain all permits required for that phase of work and pay all required fees. Work performed under a permit or permits shall comply with all provisions of the required permits. 5. Off -site Improvements. When the construction of one or more of the Improvements requires or necessitates the acquisition of real property not owned by Subdivider or City, Subdivider shall use its best efforts purchase such real property at a reasonable price. In the event that Subdivider is unsuccessful, despite its best efforts, to acquire such real property at a reasonable price, Subdivider may request in writing that City attempt to acquire such real property. City may, but is not required to, agree to attempt to acquire such real property on behalf of Subdivider. If City so agrees, City and Subdivider shall enter a separate written agreement in a form acceptable to the City Attorney. Said separate agreement shall provide that Subdivider advance to City One Hundred Fifty Percent (150%) of the appraised fair market value of the real property. Any unexpended portion of said advance shall be refunded to Subdivider. Any additional funds required for acquisition of the real property shall be paid by Subdivider to City upon the conveyance of said real property to Subdivider. In no event shall the failure of Subdivider or City to acquire such real property excuse, waive, or otherwise terminate Subdivider's obligation to construct the applicable improvement pursuant to this Agreement or the Conditions of Approval. 6. Completion of Improvements. Subdivider shall begin construction of the Improvements within ninety (90) days and shall complete construction within twelve (12) months after the approval of this Agreement. Portions of the Improvements may be completed at a later date, as determined by the City Engineer or as set forth in Exhibit A. Failure by Subdivider to begin or complete construction of the Improvements within the specified time periods shall constitute cause for City, in its sole discretion and when it deems necessary, to declare Subdivider in default of this agreement, to revise improvement security requirements as necessary to ensure completion of the improvements, and/or to require modifications in the standards or sequencing of the Improvements in response to changes in standards or conditions affecting or affected by the Improvements. Said failure shall not otherwise affect the validity of this agreement or Subdivider's obligations hereunder. 7. Force Maieure. In the event that Subdivider is unable to perform within the time limits herein due to strikes, act of God, or other events beyond Subdivider's control, .the time limits for obligations affected by such events will be extended by the period of such events. 8. Time Extension. Subdivider may make application in writing to the City Council for an extension of time for completion of the Improvements. The City Council, in its sole and absolute discretion, may approve or deny the request or conditionally approve the extension with additions or revisions to the terms and conditions of this Agreement. As a condition of the time extension, Subdivider shall furnish securities, similar in form and substance to those required in SECTION 3 hereinabove, to cover the period of extension. The value of the securities shall be sufficient to ensure the performance of and payment for Improvements that remain incomplete at the time of the extension, and to provide warranty security on completed Improvements. 9. Survey Monuments. Before final approval of street improvements, Subdivider shall place survey monuments in accordance with the provisions of Sections 66495, et sec. of the Subdivision Map Act and of the La Quinta Municipal Code. Subdivider shall provide the City Engineer written proof that the monuments have been set, evidence of payment and receipt thereof by the engineer or surveyor setting the monuments, and intersection monument tie -outs for monuments set in public streets. 10. Final Acceptance of Improvements. At the completion of construction and prior to acceptance of ,the Improvements by City, Subdivider shall submit a request for final approval by City. The request shall be accompanied by any required certifications from Subdivider's engineers or surveyors, approval letters from other agencies having jurisdiction over and approval authority for improvements required by this Agreement or the Conditions of Approval, and any required construction quality documentation 1 not previously submitted. 25 4of7 Upon receipt of said request, the City Engineer or a duly -authorized representative will review the required documentation and will inspect the Improvements. If the Improvements are determined to be in accordance with applicable City standards and specifications, and as provided herein, obligations required by the Conditions of Approval and this Agreement have been satisfied, and Subdivider has provided revised plans as required in Paragraph 11, hereinafter, the City Engineer shall recommend acceptance of the Improvements by the City Council. 11. Revisions to Plans. When the Improvements have been inspected and approved by the City Engineer, Subdivider shall make any necessary revisions to the original plans held by City so the plans depict the actual Improvements constructed. When necessary revisions have been made, each separate sheet of the plans shall be clearly marked with the words "As -Built," "As -Constructed," or "Record Drawing," the marking shall be stamped by an engineer or surveyor, as appropriate for the improvements thereon, who is licensed to practice in California, and the plans shall be resubmitted to the City Engineer. 12. Improvement Warranty. Subdivider hereby guarantees the Improvements to City for a period of one (1) year, beginning on the date of final acceptance of the Improvements by the City Council, against any defective work or labor done, or defective materials furnished, and shall repair or replace such defective work or materials. 13. Release of Security. City shall retain and release securities in accordance with the provisions of Section 3 of this agreement. Prior to the release of payment security, the City Engineer may require Subdivider to provide a title report or other evidence sufficient to show claims of lien, if any, that may affect the amount of payment security released. 14. City Right to Cure. If Subdivider fails to perform any obligation hereunder and such obligation has not been performed within sixty (60) days after written notice of default from City, then City may perform the obligation, and Subdivider shall pay the entire cost of such performance by City including costs of suit and reasonable attorney's fees incurred by City in enforcing such obligation. In cases of emergency or compelling public interest, as determined by the City Engineer, the requirement for written notice of default and/or the passage of sixty (60) days shall be deemed waived and all other provisions of this Article shall remain in effect. 15. Indemnification. Subdivider hereby binds itself, its officers, employees, agents, representatives, executors, administrators, guarantors, heirs, and assigns, and agrees to indemnify, defend and hold City and its officers, employees, agents, representatives, and assigns harmless from and against any losses, claims, demands, actions, or causes of action of any nature whatsoever, arising out of or in any way connected with Subdivider's performance herein under, including costs of suit and reasonable attorneys' fees. 16. No Modification of Conditions. This Agreement shall in no respect act to modify or amend any provision of the Conditions of Approval. In the event that any requirement or condition of this Agreement is inconsistent with or fails to include one or more provisions of the Conditions of Approval, which document(s) is (are) incorporated herein by reference, the provisions in the Conditions of Approval shall remain in effect and shall control. 17. Severability. In the event that any provision or provisions of this Agreement are held unenforceable, all provisions not so held shall remain in full force and effect. 18. General Provisions. A. All notices pursuant to this Agreement shall be in writing and shall be personally delivered or sent by registered or certified mail, return receipt requested, to the parties at their respective addresses indicated hereon. Notices personally delivered shall be effective upon delivery. Notices mailed as provided herein and sent postage prepaid shall be effective upon the date of delivery or refusal indicated on the return receipt. Either party may change its address for notices hereunder by notice to the other given in the manner provided in this subparagraph. B. The terms, conditions, covenants, and agreements set forth herein shall apply to and bind the heirs, executors, administrators, assigns, and successors of the parties hereto. , 26 ') d 5of7 C. Neither party to this Agreement relies upon any warranty or representation not contained in this Agreement. D. This Agreement shall be governed by and interpreted with respect to the laws of the State of California. E. In the event of any dispute between the parties with respect to this Agreement, the prevailing party shall be entitled to prompt payment of its reasonable attorneys' fees from the non -prevailing party. F. Any failure or delay 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 provided for hereunder. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. CITY: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 760/777-7075 Thomas P. Genovese, City Manager ATTEST: City Clerk Nadador, LLC 78-120 Calle Estado, Suite 203 La Quinta, CA 92253 (760) 564-8888 By:_ Title: By: Title: Reviewed and Approved: City Engineer ' Approved as to Form: City Attorney Date Date Date Date Date 27 1 ' 7 6of7 Exhibit A SECURITY — PARCEL MAP NO.31627 ON -SITE IMPROVEMENTS Improvements designated as "Participatory" have been or will be constructed by others. Security for Participatory Improvements shall remain in place indefinitely until called upon or released by City. Monumentation security shall guarantee performance of or payment for the work and shall be utilized or released as specified in Chapter 4, Article 9 of the Subdivision Map Act. As elements of the work are completed, Subdivider may request a maximum of two partial releases of performance security. Partial releases shall be for not less than ten percent (10%) of the total performance security for the tract and shall not reduce total performance security below the amount necessary to complete the Improvements plus ten percent (10%) of the original amount. Partial releases of performance security will be evaluated and may be granted, in whole or in part, by the City Engineer. Requests for partial releases, setting forth in detail the amount of work completed and the value thereof, shall be made in writing to the City Engineer. Labor & materials security shall remain in place until 90 days after all required tract improvements are complete and accepted by the City Council. Improvement Description Performance Labor & Materials Grading $ 281,829 $ 281,829 Drainage $ 165,140 $ 165,140 Street Improvements $ 245,107 $ 245,107 Domestic Water $ 193,665 $ 193,665 Sanitary Sewer $ 122,840 $ 122,840 Dry Utilities $ 82,500 $ 82,500 Monumentation $ 7,500 $ - Totals $ 1,098,580 $ 1,091,080 Standard 10% Contingencey $ 109,860 $ 109,100 Total Construction Cost $ 1,208,440 $ 1,200,180 Professional Fees, Design 10% $ 120,840 $ 120,020 Professional Fees, Const 10% $ 120,840 $ 120,020 No Plans Contingency 25% $ 302,110 $ 300,050 Bond Amount $ 1,7529200 $ 19740,300 28 7 of 7 Cot LUG, wa OF COUNCHJRDA MEETING DATE: December 2, 2003 AGENDA CATEGORY: ITEM TITLE: Authorization for Overnight Travel for the BUSINESS SESSION: City Clerk to attend the International Institute of CONSENT CALENDAR: Municipal Clerks Annual Conference in Whistler, B.C., Canada, May 23 through 27, 2004 STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: Approve authorization for Overnight Travel for the City Clerk to attend the International Institute of Municipal Clerks Annual Conference in Whistler, B.C., Canada, May 23 through 27, 2004. FISCAL IMPLICATIONS: The seminar will be funded from Travel, Training and Meetings Account No. 101-201- 637-000. The breakdown of estimated expenditures is as follows: • Registration $ 495 • Air Travel $ 400 • Ground Travel $ 100 • Lodging $ 690 • Meals $ 300 $1,985 CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The International Institute of Municipal Clerks holds its annual conference each year in a different region of the United States, Canada, Europe, Australia or South Africa. The conference provides excellent opportunities to network with city clerks from other parts of the country and the world as well as attending outstanding educational sessions. This year, as a result of the conference being held on the west coast, the airfare is affordable, when booked well in advance, and the favorable exchange rate makes lodging and other costs considerably less expensive. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve authorization for overnight travel for the City Clerk to attend the International Institute of Municipal Clerks Annual Conference in Whistler, B.C., Canada, May 23 through 27, 2004; or 1. Do not approve authorization for overnight travel for the City Clerk to attend the International Institute of Municipal Clerks Annual Conference in Whistler, B.C., Canada, May 23 through 27, 2004; or 2. Provide staff with alternative direction. Respectfully submitted, June Greek, Ci y. Clerk Oor Approved for submission by: r� Mark Weiss, Acting City Manager Attachments: 1. Conference Program �q 1G 0 a> 58TH I IMC ANNUAL CONFERENCE MAY 23 - 27, 2004 WHISTLER British Columbia, Canada Attend this Conference and Earn AMCA and CMC Points. See Page 4 & S. Conference Discount Program (See Registration Form) Two outstanding speakers, Chris Johnson and Dr. Patt Schwab, will give you new perspectives on our profession on Tuesday and Thursday mornings, respectively. These are custom -designed presentations for our members delivered by accomplished and superbly knowledgeable presenters. RESTORING HUMOR AND HUMANITY IN THE WORKPLACE OF TODAY Tuesday, May 25 • B: OQ a. m. - 9: 00 a. nni. Chris Johnson, B.Ed, M.Ed.... Dr. Laugh Vancouver, B.C. , Canada Chris Johnson leads a fun -filled, interactive and hands-on session that is creatively designed to explore the role that playfulness has in our lives and to offer insightful ideas and skills that can be utilized to decrease stress levels and increase organizational effectiveness. Whether in the life of the workplace or in our personal interactions with our families, the positive impact that the world of fun and play has on our mental and physical well being carries through into every aspect of our world. Johnson works with audience members and helps them explore strategies involving trust, coopera- tion and communication and sends delegates out the door with tools, techniques and valuable insights that can be utilized in every facet of the day. Customized to reflect the needs of each individual group, this presentation is intended to illustrate to audience members the importance of laughter and fun in our day-to-day lives. A high-energy, destressing addition to any conference, Dr. Laugh advises participants in this session to dress comfortably, arrive prepared to laugh and enjoy an activity session designed to break up the routine of the everyday business conference. Chris Johnson is a physical educator by profession. He has taught at all levels from preschool through elementary, secondary, college to university level. He is much sought after as a public speaker all across Canada and the U.S. He speaks not only on laughter and humor, but coaching sport and chil- dren, team building and quality physical education programs in our schools_ He is also in demand as an emcee for corporate and non -corporate functions. He has received many local, provincial and national awards in recognition of his outstanding service to' coaching and teaching. He hails from Yorkshire, England. To make the Municipal Clerk an even more valuable member of the municipality management team, in-depth administrative and managerial topics are offered as follows: • The Clerk and the City Manager/Mayor: A Partnership In Peril? • Gender & Communication: Sorry, There's Still A Difference! • Finance: A Crash Course In Understanding Municipal Finance • An Update On Elections: Handling The Demands an Democracy • Clerks Training Clerks - Celebrating Colorado's Success • Communication Strengths: Building Work Relationships • Nutrition: A Lifestyle Choice • E-Government: Benefits and Drawbacks • Disaster Planning And Recovery Above and Beyond —A Higher Level of Education g 58th IIMC Annual Conference 1f2 WHEN HELL FREEZES OVER - ICE S.K.A.T.E.! Thursday, May 27 • 10. 30 a. m Patt Schwab, Ph.D., CSP FUNdamentally Speaking Seattle, WA The future is bearing down on us like a pavement steamroller. Our choice is to climb into the driver's seat or to risk becoming part of the road! Facing change and adversity is increasingly a part of life for many of us. It may be the daily struggle with costs, politics, constituents and new tech- nologies, It might be coping with an undesirable regulatory decision, with new technology, a broken heart or a debilitating personal injury. Such adversities can be genuine setbacks for anyone. - Using a five -step formula of wit and wisdom, Dr. Schwab will show you how to weather change and adversity and emerge the better for it. The formula uses the word "SKATE" as an acronym: • S - SCREAM and acknowledge your feelings • K - KEEP your perspective with humor • A - ANALYZE what went wrong and ACCEPT what you have to • T - THINK of all the good things • E - EVALUATE your options and move on Dr. Patt Schwab is a world-renowned humorist and President of FUNdamentally Speaking, an interna- tional speaking business that puts "FUN" before "damental." She has presented in over 30 U.S. Canadian and European venues and has entertained Municipal Clerks in Institute programs for over 10 years. Dr. Schwab won a campus hog -calling contest in college, and credits this dubious honor with launching her public speaking career. In this humorous session are practical ideas for a better personal and professional life. • Scope Creep: How To Manage Your Time And Your Life • You And Your Records: Are They Perfect Together? • Personal Emergency Preparedness For You! • Mediation: Professional Dispute Resolution • Building Better Decision -Making Teams • Navigating The C's Of Change • Customer Service And You! • Futures Group: Looking Ahead And Looking Out For The Municipal Clerk • Community Consultation: The Principled Approach • Implementing Records And Electronic Document Management Above and Beyond —A Higher Level of Education • IIMC Mentoring Program: Commitment To Collegial Growth • Welcome To St. Paul in 2005! • How To Communicate And Avoid Thought Traps • The CIVIC, MMCA And Recertification Programs: Philosophy, Policy & Procedures • Open Meeting Laws - Let In More Sunshine? • Homeland Security: The Municipal Clerk's Responsibilities • How To Plan A Successful Conference • Performance Management In Local Government - An International View • IIMC's New Distance Education Program 58th IIMC Annual Conference 163 5 / T z Iwo • tJ 4 OF T�ti9 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: December 2, 2003 ITEM TITLE: Approval to 1) Appropriate Funding and Include the La Quinta Park Skate Park Improvements Within the Fiscal Year 2003/2004 Capital Improvement Plan; 2) Approve a Request for Proposal to Obtain Design Build Services; and 3) Appoint a Consultant Selection Committee RECOMMENDATION: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Appropriate $100,000 from Quimby Funds, $56,486 from RZH Recreation Grant; and $176,000 from Department of Parks and Recreation Per Capita Grant; Include the La Quinta Park Skate Park Improvements within the Fiscal Year 2003/2004 Capital Improvement Plan (CIP); Approve a Request for Proposals (RFP) to obtain Design Build services; and Appoint a Consultant Selection Committee. FISCAL IMPLICATIONS: The following represents the project's recommended funding and funding sources: Quimby: $100,000.00 RZH Recreation Grant (Prop. 12): $56,486.00 DPR Per Capita Grant (Prop. 12): $176,000.00 Total Proposed Funding: $332,486.00 The following represents the anticipated project budget: Construction: Design: Inspection/Test/Survey: Administration: Professional: Contingency: Total: $223,598.00 $23,249.00 $25,768.00 $16,624.00 $10,000.00 $ 33, 248.00 $332,486.00 164 As illustrated, the total recommended project budget is $332,487.00. Of this amount, $246,847.00 will be assigned toward the Design/Build work effort. The balance of the budget will be used for Inspection, Testing and Survey, City Administration, Professional Services, and Contingency. CHARTER CITY IMPLICATIONS: Since this project is funded through non local funds (Proposition 12), the contractor will be required to pay prevailing wages. BACKGROUND AND OVERVIEW: On August 21, 2001, the City Council adopted a Resolution approving the application for grant funds from the Safe Neighborhood Parks, Clean Water, Clean Air and Coastal Protection Bond Act of 2000 (Proposition 12 and Roberti-Z'berg- Harris Urban Space and Recreation Block Grant Program (RZH Recreational Grant)). On February 21, 2003, the City submitted grant applications in the amount of $176,000 and $56,486 respectively to the California Department of Parks and Recreation. These grants were approved in April 2003 by the California Department of Parks and Recreation and the City was authorized to proceed with the development of the skate park. The proposed skate park is included in the Fiscal Year 2003/2004 through 2007/2008 CIP, approved by the City Council on May 20, 2003, as an Add Project. Add Project AD09 consists of installing approximately 14,000 square foot skate park amenity at the La Quinta Park located at the corner of Adams Street and Westward Ho Drive. Attached is an RFP for designing and constructing the project as a single process (i.e., design/build contract). Staff recommends the design/build approach for this project to better integrate the design of the skate park features with their construction. The City successfully used a similar process for the skate park at Fritz Burns Park. The Consultant Selection Process outlined within City Resolution 96-80 shall be followed. In accordance with Resolution 96-80, the City Council is notified of the potential need to contract for professional services in excess of $10,000. Staff suggests the City Council appoint a Consultant Selection Committee consisting of the following members: -Timothy R. Jonasson, P.E., Public Works Director/City Engineer -Dodie Horvitz, Community Services Director -Tom Hartung, Building and Safety Director -Steve Speer, P.E., Assistant City Engineer -Nick Nickerson, Project Manager 2 165 Contingent upon City Council approval of the project and authorization to distribute the attached RFP (Attachment 1) on December 2, 2003, the following represents the project schedule: Issue RFP December 3, 2003 Proposal Due Date January 7, 2004 Consultant Selection Process January 7, 2004 - January 31, 2004 Recommendations to City Council February 17, 2004 Project Design/Construction March - August 2004 FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Appropriate $100,000 from Quimby Funds, $56,486 from RZH Recreation Grant and $176,000 from the California Department of Parks and Recreation Per Capita Grant; include the La Quinta Park Skate Park Improvements within the Fiscal Year 2003/2004 Capital Improvement Plan; approve a Request for Proposal to Obtain Design Build Services; and appoint a Consultant Selection Committee; or 2. Do not appropriate $100,000 from Quimby Funds, $56,486 from RZH Recreation Grant and $176,000 from the California Department of Parks and Recreation Per Capita Grant; do not include the La Quinta Skate Park Improvements within the Fiscal Year 2003/2004 Capital Improvement Plan; do not approve a Request for Proposal to Obtain Design Build Services; and do not appoint a Consultant Selection Committee; or 3. Provide staff with alternative direction. Respectfully submitted, 4m4onthyytR.�6nas4k P.E. Public Works Director/City Engineer Attachments: 1. Design/Build RFP Approved for submission by: VA�-\f - Mark Weiss, Acting Executive Director 3 166 ATTACHMENT 1 CITY OF LA QUINTA REQUEST FOR PROPOSAL TO PROVIDE DESIGNBUILD SERVICESFOR THE DESIGN AND CONSTRUCTION OF THE SKATE PARK FACILITIES WITHIN THE LA QUINTA PARK The City of La Quinta is requesting proposals from qualified firms and/or individuals to provide design/build services for the Skate Park Facilities within the La Quinta Park. This will include the design, construction, construction management, survey, soils, materials and appurtenances, and inspection services during construction. Proposals will be received by the City of La Quinta, (City) Public Works Department located at 78-495 Calle Tampico, P.O. Box 1504, La Quinta, California 92253, until 5:00 p.m., Monday, December 22, 2003. Proposals will be addressed to the attention of Mr. Nick Nickerson, Project Manager. TYPICAL SERVICES: Typical services to be provided include, but are not limited to: ► Prepare plans, specifications and cost estimates of the proposed skate park facilities at the La Quinta Park. ► Provide construction management and inspection services. ► Coordinate the plans with all effected agencies that require input for the construction, maintenance, and operation of proposed skate park facilities. ► Attend Community Services meetings and City Council meetings during the design phase of the project. ► Obtain all required permits. ► Prepare and track project schedules. ► Monitor and report on project status; budget vs. actual expenditures; contract time vs. actual time. ► Complete all sub -surface studies utilizing existing as -built plans of the La Quinta Park and any boring that may be required to determine any sub -surface obstructions that must be mitigated or removed for the construction of a skate park. This includes unknown buried objects. ► As part of the design, reroute the existing irrigation system to function on the remaining landscaping after the project is complete. ► Provide all materials and labor for the construction and installation of a skate park, and appurtenances. ► Provide all soils geotechnical services required to properly complete the project in accordance with all public codes. 4 167 INSURANCE: In accordance with Section 5 of the attached agreement, the consultant shall procure and maintain, at its cost: 1. Personal and public liability and property damage insurance; 2. Automobile liability insurance of $1,000,000; 3. Workers' Compensation Insurance; and 4. Professional errors and omission's liability insurance. PROPOSAL: Consultants are encouraged to keep their proposals brief and relevant to the specific services required. The City has $246,847.00 budgeted for this entire project, "turn key," including, but not limited to: Plans, specifications and estimates, professional services, soils, inspections, permits, approvals, any and all meetings, and full construction of all facilities. For this proposal, Facilities are defined as follows: "Facilities" mean the improvements to the area at the La Quinta Park designated as a skate park which include, but are not limited to: The skate park at the La Quinta Park will be a combination of a concrete bowl and modular components. The components shall consist of the following: CONCRETE WORK, MODULAR SKATE PARK EQUIPMENT, SITE FURNISHINGS, AND MUSCO LIGHTING. The site location is provided in the site map, which is approximately 14,000 square feet, however, the contractor is responsible for the actual square footage of the site. Contractor shall provide three references of design and construction of past work on three concrete skate parks in Southern California and specifically one or more of these referenced skate parks should be located in a desert region. Musco TLC lights will be included and installed in accordance with the manufacturer's specifications presented in Attachment 1. Lighting for the skate park will be incorporated into the existing Musco lighting system for the park including connection to the master control system. (1-800-659-0117) Amenities for the skate park will include a concrete bowl. The actual dimensions above and below grade will be determined during the design stage of the project. Concrete work will be installed in accordance with the specifications presented in Attachment 2. 5 168 Modular equipment shall be from Huna Designs (1-800-669-2585) (or approved equal) and installed per manufacturer's instructions based upon certified geometries and incorporated into the overall skate park design. Specific amenity design will be provided by Huna Designs. Huna components shall have blue powder coated frames. Site furnishings shall match existing site furnishings and include the following: (1-800-669-2585) a. Two Victor Stanley #TH-36 trash cans with blue frames and lids and gray recycled materials slates b. Two Victory Stanley #C-96 benches with blue frames and gray recycled materials slates Pursuant to provisions of the Labor Code Section 1770, et. seq., of the State of California, the Director of the Department of Industrial Relations has ascertained the prevailing rate of per diem wages of the locality in which the Work is to be performed and applicable to the work to be done. The Contractor and Sub -Contractors shall comply with the Davis -Bacon Fair Labor Standards Act (40 USC a-276 a-5), and the implementation regulations issued pursuant thereto (29 CFR Section 1, 5) and any amendments thereof. Contractor will be responsible for attending up to two Community Services Commission meetings and one City Council meeting during planning and construction of the skate park. Contractor will be responsible for all permits needed. Five copies of the proposals shall be submitted and include the project approach, project schedule, consultant team (including all professional and construction companies involved), and a listing of similar projects with references that are relevant to this type of work. A rendering of the proposed facility is also required. In a separate sealed envelope, consultants must submit a cost breakdown for each item and phase of the proposed work. Each representative of the consultant team must be listed along with each firm name. SELECTION PROCESS: Proposals will be reviewed by a Consultant Selection Committee. The Committee will rank each consultant team for contract negotiations based upon the team's experience, approach to the project, project schedule, and qualifications. The City Council has directed that this project will be complete and open for operation no later than August 2004. The maximum amount allocated to this project is $246,847.00 for all work previously listed complete. No amendments or change orders to this contract are authorized. The firms will be ranked based on their written proposal and verbal presentation to the Consultant Selection Committee. It is anticipated that interviews will be conducted during the week of January 19, 2003, with a contract award tentatively scheduled for the Council meeting of February 17, 2004. The successful consultant will be expected to enter into the Professional Services/Construction Agreement presented in Attachment 3. 6 1 r) ,g i I ;, „F ,f�j • '• , �I ICI• I TO R MMN I Alph Eat ��0�1 ��wewa®��®� ■ AV lions ■ ■ !r . -7-55 ■■ O yii■ ■ O■■■■■®■■■�■®■W■WN�Y■■H1a■ r w !� ,� O e O� � D O �i � •q>,� �x.�. z o • o ♦ �O rill 2 e w 221 ♦♦ ,,�.., No ATTACHMENT La Quinta Community Park Skate Park Lighting Project Musco Lighting Specifications I "I 1 Presented to: La Quinta Community Park North Skate Park Lighting Project La Quinta, CA October 9, 2003 Submitted by: Musco Lighting, LLC 15311 Barranca Parkway Irvine, CA 92618 Phone: 949/754-0503 or 800/659-0117 Fax: 949/754-0637 West Gen Spec Revision Level: 7 ©1988, Revised 2003 This information is provided by Musco exclusively for this project. Reproduction or distribution of the enclosed documents or information without the written permission of Musco Lighting, LLC. is prohibited. 9 172 TABLE OF CONTENTS A. LIGHTING PERFORMANCE..............................................................................................3 B. POINT BY POINT ANALYSIS.................................................................................................5 C. INSPECTION AND VERIFICATION..................................................................................6 D. LIGHT -STRUCTURE SYSTEM..........................................................................................6 E. LUMINAIRE STRUCTURE..................................................................................................7 F. WIRE HARNESS..................................................................................................................8 G. ELECTRICAL COMPONENT ENCLOSURE(ECE)........................................................8 H. POLE STRUCTURE...........................................................................................................10 I. FOUNDATION.....................................................................................................................12 J. SAFETY SPECIAL CONDITIONS....................................................................................13 K. INSTALLATION....................................................................................................:..............14 L. PATENT RIGHTS AND INFRINGEMENT......................................................................15 M. MANUFACTURER'S REPRESENTATIVE ON SITE VISIT.........................................15 N. ALTERNATE SUBMITTAL DATA TO BE PROVIDED.................................................16 1 t7 3 2 10 LIGHTING A. LIGHTING PERFORMANCE The manufacturer shall supply lighting equipment and computer generated point by point analysis to meet the following: 1. Performance Criteria a. All computer generated point by point light scans shall be base on a maximum of 105,000 lumens per lamp. b. The specified light levels shall be derived by applying Light Loss Factors to the Initial and Maintained lighting designs in the following manner (Per IESNA Lighting Handbook Reference and Application, Ninth Edition, page 9-17). C. Light levels are to be based on footcandles as calculated from the photometric report of the luminaire (per the lamp manufacturer's 100 hour lamp lumens) x Ballast Factor x Voltage Factor x Ambient Temperature Factor x Lamp Tilt Factor. The average Initial Light Levels shall meet or exceed the following: Area of Lighting Entire Field Skate Park 37.5 footcandles d. Target (or Maintained) Light Levels are based on Initial Light Levels multiplied by the Recoverable Light Loss Factor of jo$M. The average Target Light Levels shall meet or exceed the following: Area of Lighting Entire Field Skate Park 30 footcandles e. The manufacturer guarantees field light intensity levels and uniformity ratios at initial start-up or within the first fifteen (15) hours of operation. Light level readings shall be completed as detailed in the point by point analysis specification. 2. Performance Criteria — Light Uniformity a. Maximum to Minimum Uniformity Ratio — The uniformities of the playing field shall be measured by comparing the maximum reading to the minimum reading. This ratio shall not exceed the following: Area of Lighting Entire Field Skate Park 2.5:1 b. Uniformity gradient (UG) — The ratio of greater footcandles to lesser footcandle levels between any two adjacent points in the defined grid, shall not exceed the following: Area of Lighting Entire Field Skate Park 1.37:1 C. Coefficient of Variance (CV) — The ratio of the standard deviation for all of the footcandle values to the mean. The maximum (CV) shall not exceed the following: Area of Lighting Entire Field Skate Park 0.14:1 3. Energy Usage a. Kilowatt consumption — The kilowatt consumption based on the required number of fixtures to meet the specified light levels shall not exceed the following specified kilowatts per hour: Area of Lighting KW Consumption Skate Park 12.84 b. Penalty for kilowatt consumption exceeding the maximum allowable to achieve the light performance shall be as follows: • 20 years (life cycle) x 2 x $.10 per kilowatt hour x number of kw exceeding specification x hours of use per year = penalty for non- compliance. 4. Glare/Spill Light a. To ensure proper aiming angles for reduced glare and to provide better playability, the new pole mounting heights from the playing field surface shall not be less than 50 feet. b. Photometric reports must be provided to demonstrate the capability of achieving the specified photometric performance. Photometric reports must contain candela tabulations for each reflector type utilized. Each report must have the minimum quantity of test points as defined by the IESNA publication LM-35-89 or the most recent edition. Only reports from an independent testing laboratory with a minimum of five years of experience or an NVLAP accredited laboratory will be accepted. C. Arc Tube Brightness (Luminance) - No portion of the arc tube shall be visible at any horizontal angle greater than 35 degrees, measured from the geometric center of the lamp's arc tube, as viewed from any vertical angle above photometric center. 4 12 1 1 J No portion of the arc tube shall be visible at any vertical angle greater than 12 degrees, measured from the geometric center of the lamp's arc tube, as viewed from any horizontal angle. d. Upper Beam Definition — No one fixture shall exceed the candlepower or the specified degrees above the center of the beam in the vertical plane as specified in the following table. A candlepower value of 12,000 is the amount of luminous intensity that often begins to cause discomfort and interfere with vision and closely approximates the intensity of low beam headlights. The referenced candlepower should not consider the fixture's tilt factor. Beam Vertical NEMA Classification Candlepower Degrees Above the Center of the Beam in the Vertical Plane 3 12,000 17 degrees 4 12,000 17 degrees 5 12,000 23 degrees 6 12,000 25 degrees e. Lower beam definition — To ensure proper efficiency within the target area, the approved lighting fixture shall meet or exceed the below specified candlepower at defined angles below the center of the beam. The candlepower referenced should not consider the fixture's tilt factor. Beam Vertical NEMA Classification Minimum Candlepower to be Achieved Degrees Below the Center of the Beam in the Vertical Plane 3 3521000 -1.5 degrees 4 211,000 -2.5 degrees 5 103,000 -4.0 degrees 6 88,000 -5.0 degrees B. POINT BY POINT ANALYSIS 1. Computer Models - Test Stations Area of Lighting # of Points Size of Area to be Covered Grid Spacing Skate Park 100 100' x 100' 10' x 10' a. Submitted computer models shall depict the Measurements of light shall be demonstrated on a computer generated model which consists of a grid of a specified number of points covering a stated area on an equally spaced grid. See the below chart for the exact specifications of points, areas, and grid spacing for each field. b. Bidder shall submit two (2) different models, one depicting initial design and the second depicting light levels with described maintenance factor applied. 5 13 176 C. INSPECTION AND VERIFICATION 1. Test and Measurement Procedures a. The lighting manufacturer guarantees the specified illumination levels and uniformity ratios at initial start-up or within the first fifteen (15) hours of operation. The measured illumination levels must be equal to or greater than the specified average initial illumination levels. Corrective action should be taken to bring the installation into conformance with these expectations. b. Testing of the facility shall be done based on the test stations as described in section B.1. C. All testing will be done with entire facility illuminated. d. In the event that the specified spill light readings as defined in Section B.1 are exceeded in the field, ambient light readings shall be taken and subtracted from the respective light readings. The ambient readings must be taken at the same location and orientation as the previously recorded readings. e. The manufacturer will be required to grid the complete field(s) based on the computer models submitted requirements and take readings at each grid point. The manufacturers will be required to utilize two (2) separate Goosen Panalux meters or approved equals with proof of calibration certificates within the past six (6) months. The average of the two meter readings will be recorded as the light intensity of each grid point. f. For final approval of the project the manufacturer shall provide a final report from the test results that shall provide the following items: (1) Identification of number and location of the test stations, that shall agree in number and location with description provided in B.1. (2) Actual horizontal footcandle readings taken at each test station. (3) Number of hours of operation and number of system starts. D. LIGHT -STRUCTURE SYSTEM General Description - The Light -Structure System as manufactured by Musco Sports Lighting, Model #LS-TLC-1000 shall consist of the listed equipment features below. 1. Pre -stressed centrifugal spun concrete base 2. Hot -dip galvanized steel shafts. 3. Hot -dip galvanized steel crossarms. 4. Fixture consisting of: lamp, lamp socket, reflector, lens, lamp cone, reinforcing retaining ring. 5. UL listed fusing for the lamp circuits. 6. Enclosure to consist of: NEMA 3R enclosure with ballasts and capacitors. 7. Circuit disconnect utilized as a local electrical disconnecting device. 8. All wiring from the load side of the disconnect to the lamp socket 6 14 177 9. Plug-in or landing lug connection devices for all electrical circuits on the pole. 10. Aiming method for alignment of the luminaires. 11. Method for re -alignment of the luminaire after movement for relamping. E. LUMINAIRE STRUCTURE 1. Factory Construction - The lamp and reflector mounting device shall be factory assembled to the crossarms and the crossarms shall be attached to a section of the pole by the manufacturer. 2. Single Photometric Unit - Each reflector shall be attached to the crossarm in such a way that its aiming position has been determined relative to all other fixtures on the pole so that in the factory all luminaires on the assembly are oriented to form a single photometric unit. 3. Lamps - Lamps shall be 1000 watt metal halide and shall meet ANSI designation M47PA-1000 and be Philips MH1000MZ or an approved equal. 4. Reflector and Lamp Supports - The reflector shall be fastened to the lamp cone with a reinforcing retaining ring containing an acrylic compressed fiber ring which centers and stabilizes the lamp in the reflector and provides heat shield to protect the lamp socket from heat. 5. Lens - A removable lens of impact and thermal resistant glass with silicone gasket shall be centered in a stainless steel lens rim and attached to the reflector with a hinged cable or chain. 6. Aiming - The manufacturer shall provide a memory positioning device for each luminaire on the assembly. The device shall provide for automatic repositioning of the aiming after relamping. 7. Field Alignment- Luminaire assembly shall be provided from the factory to the job site as a unit which may be universally oriented in a manner that the entire luminaire assembly can be field aimed as a single unit. 8. Materials and Coatings - All steel components shall be hot dip galvanized to the most current ASTM A-123 standards. High purity reflector grade aluminum shall be alzak finished. All other aluminum components shall be polyurethane powder coat painted or anodized to MIL-A-8625E and coated with a clear thermoset polymer. All non -current carrying fasteners, hinges, and latches shall be stainless steel and shall be coated with thermoset epoxy type organic coatings such as Empigard to prevent galvanic interaction. 9. Crossarm Welding - Crossarms for the luminaire assembly shall be welded to the pole section before galvanizing by American Welding Society certified welders. Any additional fasteners used for the attachment of accessories to the crossarm shall be stainless steel and coated with Empigard or equivalent. All weld joints utilized will be pre -qualified per the American Welding Society or qualified by an AWS certified inspector or testing firm. 10. Structural Strength - To assure continued alignment of the critical aiming of the luminaires and to avoid wind damage to the crossarms or its components, the 7 1�$ 15 crossarm, reflector, and its attachment to the pole shall be designed to withstand winds of 125 mph with a 1.3 gust factor. Luminaires shall be attached to the crossarm by a minimum of two bolts. To assure longterm durability the bolts shall be stainless steel. To avoid corrosive reaction to adjacent material the stainless material shall be Empigard coated. Also to protect against potential corrosive conditions there shall be no penetrations of the top or sides of the crossarms. F. WIRE HARNESS 1. Strain Relief - The wiring harness shall be supported at the top of the pole by a stainless steel wire mesh grip matched to the size of the harness. There shall be not more than 13 conductors supported by a single wire mesh grip. If harness is longer than 65' an interim wire mesh grip support shall be located approximately half way down the pole. 2. Strain Relief Slippage - There shall be protection around the conductors, in addition to the insulation to protect from damage from the wire mesh grip and also to avoid slippage of the grip on the wire harness. The wire mesh grip shall also be clamped to the harness with a cable tie at the bottom of the grip to avoid loosening. 3. Pole Attachment - The wire mesh grip shall be mechanically attached to the pole to an enclosed mounting loop so that it cannot accidentally be removed in any direction. 4. Spiral Winding - The harness being supported by the wire mesh grip shall consist of multiple 14 gauge THHN conductors and shall be continuously spiral wound and bound with mylar wrap to prevent slippage of individual conductors within the wiring harness. Additionally, a cable tie shall be tightly wrapped around the harness at not more than 10' increments. 5. Abrasion Protection Sleeving - The wire harness shall be completely encased in flexible abrasion resistant sleeving to alleviate wear on the insulation of the conductors caused by abrading the interior of the pole. The wire harness sleeving shall begin no more than 32 inches from the top of the wire harness and end no more than 5 inches from the bottom of the wire harness. If additional wire mesh grips are provided, the sleeving shall begin no more than 4 inches above and below the grip. 6. Labeling - All wiring harness conductors shall be color -coded and clearly labeled. 7. Plug Ins - Each end of the wire harness shall be terminated into a plug-in with conductors sequenced consistent with the pattern of the wiring schematic provided by the manufacturer. G. ELECTRICAL COMPONENT ENCLOSURE (ECE) NEMA 311 - The ECE shall be a NEMA 3R rated gasketed enclosure to house the ballasts, capacitors, fuses, circuit disconnect, and distribution lugs. 2. Material - ECE shall be constructed out of .080" thick 5052-1-132 aluminum for high corrosion resistance and thermal conduction. Optional: Steel materials 8 16 11,73 galvanized prior to fabrication will not be accepted. 3. Coating - ECE shall be coated with 1.5-2.5 mils of high thermally radiant polyester powder coat paint. Paint shall pass the following performance tests: Method ASTM D2794 ASTM D522 ASTM D3363 ASTM D3359 ASTM 13117 Description Dir./Rev. Impact Flexibility, Mandrel Pencil Hardness Cross Hatch Adhesion Salt Spray Value 120 in.-lbs./120in.-lbs. 1 /8" Dia. (no fracture) 3H 5B (no loss) 1,000 Hrs. 4. Two Compartments - The ECE shall be divided into two compartments. The upper compartment shall house the ballasts, capacitors, and fuses. The lower compartment shall provide for the circuit disconnect, distribution lugs, and connection of all circuits coming into and out of the ECE. 5. Stainless Steel - All latches, hinges, and non -current carrying fasteners, either outside or inside the enclosure, shall be stainless steel of at least an 18-8 standard. All stainless steel shall be passivated and plated with .0002" thick cadmium to prevent galvanic interaction and to maintain electrical contact for grounding purposes. 6. Hinged Door Access - The access door to the ECE shall be attached by a full- length stainless steel or powder coated aluminum hinge and shall be secured when closed by lockable stainless steel latches. 7. Pole Attachment - The ECE shall attach to the pole by means of a device which is sufficient to align the ECE and support its weight. There shall be a sealed joint with a non -threaded connection to provide wiring access from the pole to the ECE for both the primary and secondary circuits. The connection shall be gasketed for water -tight protection. All wire passages shall be protected to prevent wire abrasion or damage. 8. Capacitors - In the ECE, capacitor cases shall be made from aluminum. The capacitor case shall not make direct contact with surface of the ECE, but shall be mounted on an aluminum channel. The capacitor case shall be grounded to the ECE. Capacitors shall be rated in unison with the ballast to operate the lamps at the specified wattage. 9. Disconnecting Device - There shall be provided within the ECE a UL listed circuit disconnect utilized as a local electrical disconnecting device such that electrical power to all equipment on the pole served by the feeder circuit shall be disengaged by the operation of one switch. The breaker shall be located in a compartment separated from any capacitors or ballasts. 10. Lugs - The breaker shall provide landing lugs for the conductors which provide power to the pole. 11. Distribution Terminal Blocks - There shall be provided by the manufacturer a set of distribution terminal blocks which shall be factory wired from the breaker to the blocks. These blocks shall provide for termination of all ballast connection 0 l .3 0 17 wiring. 12. Fusing - There shall be provided an individual fuse in a supported fuse block for each ballast conductor, except neutral conductors which shall not be fused or switched. 13. Plug -In - All lamp supply circuits in the ECE shall be color -coded and labeled and shall terminate into a UL recognized plug-in device located in the lower compartment of the ECE in a manner suitable for plug-in to the wiring harness. 14. Wire Harness Connection - The wiring harness circuits from the lamps shall be attached to the ECE circuits by UL recognized plug-in connectors. 15. Grounding - There shall be provided in the ECE located in the lower compartment of the enclosure three (3) feet of #6 wire rigidly fastened to the enclosure for attachment to the pole ground lug. 16. Ballast Type - There shall be an individual ballast for each luminaire. The ballast shall be a lead peak auto -regulating ballast and be available for use with any standard supply voltage. The ballast shall be located remote from the luminaire crossarm and shall be placed approximately ten (10) feet above ground level. Ballast box must be a NEMA 3R enclosure and must be manufactured by the luminaire assembly manufacturer and all mounting hardware shall be included with the ballast box assembly. The remote ballast system described above shall be located on the same pole as the luminaire assembly in the NEMA 3R enclosure with the capacitors. The assembly design shall be adaptable to various standard manufactured ballast and must retain UL listing. 17. Drawings Attached - The manufacturer shall provide an electrical schematic of the ECE circuits, which schematic shall be of a durable material and affixed to the inside of the ECE door for use by maintenance personnel. 18. Location - The ECE shall be attached to the pole with the lower end approximately 10' above grade at the pole foundation. 19. UL Listing - The ECE shall be listed by UL both for use with 90 degrees C rated supply conductors and as suitable for use in wet locations. POLE STRUCTURE 1. Structural Design The stress analysis and safety factor of the poles shall conform to 2001 California Building .Code. 2. Wind Loading The wind load on the pole shaft and all attachments shall be determined based on CBC 2001, 70 mph basic wind speed with 50 year mean recurrence, exposure category C. 3. Pole Material The pole shaft shall be constructed of low carbon, tapered tubular steel 10 18 181 conforming to ASTM A595 Grade A or ASTM A572 Grade 65. A non -tapered section of pole conforming to ASTM A513 may be used at the top of the pole for attachment of the luminaire crossarms. 4. Direct Buried Steel To alleviate concerns of corrosion at or near grade level, and to eliminate the need for corrosion inspection and maintenance, direct buried steel poles will not be accepted. 5. Pole Shaft Connections All connections of pole shafts shall be telescopic with a minimum overlap of 1.5 times the inner diameter of the upper shaft at the exposed end. 6. Corrosion Protection — The pole shaft and luminaire crossarms shall be fabrication to conform with ASTM A123. To ensure coating with good adherence, all steel components luminaire crossarm, and other attachments must b e All exposed steel components of the pole shall be at least 18" above final grade to avoid exposure of the steel to moisture and oxygen laden air present both above and below the surface. There shall be a pole cap to cover the top of the pole and covers for all access openings in the pole wall so that rain will not enter the pole. All fasteners and attaching hardware shall either be stainless steel or be hot dip galvanized to conform with ASTM A153. 7. Height — Each pole shall provide the following mounting height above final grade at the location of the pole: Pole Designation Mounting Height New Poles: SK1, SK2, SK3 50' Existing Pole: S15 50' 8. Powder Coat Painting of Poles Poles are to be powder coat painted (color) after galvanizing. The painting process shall consist of a light sanding or shot blasting etch to texture the surface to permit good paint adhesion. A subsequent cleaning process shall take place after the sanding or blasting to remove any loose particles that would prevent proper adhesion. The pole will then be primed with a Self -Bonding Polyethylene Primer and top coated with a (color) polyester powder coat paint. Each pole section shall have appropriate grounding brackets and/or lugs welded or mechanically attached that adhere to National Electrical Code criteria to maintain grounding continuity. Additionally, the grounding system shall meet the Lightning Protection Code defined by the National Fire Protection Association (NFPA 780). I. FOUNDATION 1. Foundation Design The foundation design shall conform to 2001 CBC. 2. Precast Concrete Base The pole shall be supplied with a centrifugally cast, pre -stressed concrete base constructed of 9,500 psi concrete capable of carrying the structural loads from the steel pole shaft. The upper end of the base shall be tapered to allow a telescopic connection to the steel pole shaft. Exposed ends of prestressing steel shall be epoxy coated for corrosion protection. 3. Backfill Backfill used for the foundation must be concrete. Due to the risk of shifting, and due to the risk of improper placement and compaction, gravel or crushed rock backfill will not be accepted. 4. Concrete Curing Any concrete which contains reinforcing steel shall be allowed to cure for a minimum of 28 days prior to erection of the pole onto the foundation. 5. Foundation Drawings Project specific foundation drawings stamped by a registered engineer in the State of California must be provided with the bid. The foundation drawings must list the moment, shear (horizontal) force, and axial (vertical) force at ground level for each pole. 6. Soil Conditions The design criteria for these specifications are based on soil design parameters as outlined in the geotechnical report. If a geotechnical report is not provided by the owner, the foundation shall be based on soils that meet or exceed those of a Class 5 material as defined by 2001 CBC, Table 18-1-A. It shall be the contractors responsibility to notify the owner if soil conditions exist other than those on which the foundation design is based. The owner shall then be responsible and absorb the additional costs associated with: a. Providing engineered foundation embedment design by a registered engineer in the State of California for soils other than specified soil conditions. b. Additional materials required to achieve alternate foundation. 12 20 183 The design criteria for these specifications are based on readily excavated soil types. It shall be the contractors responsibility to notify the owner of soil conditions that cannot be readily excavated. The owner shall then be responsible and absorb the additional costs associated with excavation and removal of materials other than normal soils, such as rock, caliche, etc. 7. Lightning Protection a. All structures shall be equipped with lightning protection meeting standards established by NFPA 780 (National Fire Protection Association). b. There shall be provided at each structure at least one copper -clad steel ground rod of not less than 5/8" in diameter and not less than 10' in length. An 8' ground rod would be permissible provided it extends vertically into the earth at least 10'. C. The ground rod(s) shall be connected to the structure by a copper main down conductor. This conductor shall be not less than a #2 conductor if the structure is 75' or less above grade. If the structure is greater than 75' above grade the conductor shall be not less than a #2/0 conductor. d. For steel poles, the main down conductor shall extend from the base of the steel pole to the ground rod(s) and shall be bonded to the steel pole and the equipment ground. All metal components on the pole shall be bonded to the pole. e. All main down conductors and all bonding conductors shall maintain a horizontal or downward coursing path, free from "U" or W" (down and back up) pockets. Such pockets, often formed by metal components mounted below the pole top bond location, shall be provided with a down conductor from the base of the component to ground or to an adjacent main down conductor. f. No bend of any conductor shall form an included angle of less than 90 degrees nor shall it have a radius bend of less than 8". J. SAFETY SPECIAL CONDITIONS Listing - There shall be provided a UL listing for all electrical components from its connection to the feeder conductors, to its completion at the lamp socket including all connections. This listing shall be based upon UL testing and evaluation of the compatibility of the enclosures and the components for use in combination in this application in addition to the individual components being UL listed or recognized. Bidder shall supply, in advance of bid, a page summarizing the Underwriters Laboratory listing numbers covering the entire luminaire assembly and pole lighting structure being bid for the owner's review and retention. 2. Codes - Sports Lighting Structure shall meet National Electrical code. 13 21 184 3. Warranty - 7 Year Warranty a. Manufacturer shall warrant in writing the entire structure (excluding fuses .and lamps) to be free from defects in materials and workmanship for a period of seven years starting from the date of delivery. b. Manufacturer agrees in writing to provide labor and materials for a period of two years to replace defective parts or repair defects in workmanship, or, at its election, to pay reasonable costs of labor for such repairs. For the remainder of the warranty period, replacement materials will be provided at no charge. C. Lamps shall be warranted by the manufacturer in writing not to fail for two years from the date of delivery. Lamps which fail during the first year of the warranty period will be replaced and installed at no cost to the owner. Lamps which fail during the second 12 months will be replaced by the manufacturer but installation will be the owner's responsibility. d. Manufacturer warrants in writing accurate alignment of the luminaires on the luminaire assembly for a period of seven years starting from the date of delivery. e. The contractor shall furnish to the owner of the facility 5% extra and 5 extra fuses for future use. f. At the completion of the project and in the presence of the Contractor, Project Engineer, Owner's Representative, and Manufacturer's Representative, actual light performance meter reading shall be taken and verified. g. If, in the opinion of the Owner or his appointed Representative, the actual minimum performance levels including footcandles, uniformity ratios, and maximum kilowatt consumptions are not in conformance with the requirements of the performance specifications and submitted information, the Manufacturer shall be liable to any or all of the following: h. The Manufacturer shall at his expense provide and install any necessary additional fixtures to meet the minimum lighting standards. The Manufacturer shall also either replace the existing poles to meet the new wind load (EPA) requirements or verify by certification by a licensed structural engineer that the existing poles will withstand the additional wind load. i. The Manufacturer shall minimize the Owner's additional long term fixture maintenance and energy consumption costs created by the additional fixtures by reimbursing the Owner the amount of $1,000.00 (one thousand dollars) for each additional fixture required. j. The Manufacturer shall remove the entire unacceptable lighting system and install a new lighting system to meet the specifications. K. INSTALLATION Weight and Size - To permit ease of handling of material at the job site and to 14 22 1,35 avoid damage to the existing facility, no single component of the pole shall be in excess of 1050 lb., nor be greater than 41' in length. 2. Backfill - The pole base shall be installed in an excavation as prescribed by the UBC standards for foundation design. Concrete backfill is required. 3. Assembly - The pole base shall be separate from the pole such that the base may be installed, properly plumbed, and enlarged as to the bearing surface by concrete backfill allowing for inspection prior to the attachment of the steel pole. 4. Electrical Wiring - The pole and the luminaires shall be designed such that all wiring remains underground before entering the base of the pole and that no wiring shall be exposed to sun or weather as it transitions through the pole and to the ballast and on to each lamp. There shall be provided a non -threaded hot -dip galvanized steel or concrete enclosed raceway for transition of the pole feeder conductors from the trench to the ECE. 5. Field Connections - All field electrical connections on the pole shall be achieved by UL listed plug-in or lug method of attachment from the load side of the disconnect to the lamp socket. The feeder and grounding conductors from the service entrance to the pole shall be connected at the pole by landing lugs. 6. Ease of Maintenance - To minimize crane expense, when service is necessary, by placement of ballast, fuses, capacitors, along with disconnect, near ground level (IESNA RP-6-01, page 20). Wiring harness shall be designed with abrasion protection sleeving, proper suspension support, etc. L. PATENT RIGHTS AND INFRINGEMENT There are various established performance criteria throughout this request for products and services. There may exist patent coverage for some means and methods of achieving those performance criteria. Bidders are responsible for ascertaining that means and methods of the products and services which they are providing are not being provided in violation of any such patent rights. Bidders responsibilities are as follows: 1. To hold harmless, the owner, as to any violation to include dollar amounts that could be owing as a result of damages for infringement including potential treble damages as provided for under U.S. Patent Law. 2. Any and all costs that the owner would incur in replacing materials and services which are determined to infringe patent rights. 3. All administrative, legal and other costs that would be incurred as a result of an infringement. If any product or services proposed to be provided by the bidder are known by the bidder to be subject to any existing claims of infringement, bidder shall notify owner of such claim and provide evidence of financial ability to perform on the above hold harmless requirements. M. MANUFACTURER'S REPRESENTATIVE ON SITE VISIT Manufacturer shall provide a qualified, factory trained, representative on -site after the completion of the project installation. The manufacturer shall make any necessary 15 23 136 adjustments to the aiming in order to ensure that the specified lighting performance is met. This service is to be provided free of charge provided the lighting equipment was installed in accordance with the manufacturer's design and specifications. N. ALTERNATE SUBMITTAL DATA TO BE PROVIDED Failure to provide any of the following information with the alternate submittal will be grounds for rejection of the alternate. Each item listed below shall be provided in the form of clear and concise statements and/or plans and drawings which can be easily read and clearly interpreted. Each item shall also be clearly lettered to correspond with the following list. All items shall be assembled in the order indicated and secured or bound in a neat and orderly fashion for easy use and reference. Faxed bids will not be accepted. Owner must notify all bidders of any approved alternate by addendum only. Bidders requesting to use equipment other than that specified shall submit 10 days prior to bid opening the following: 1. Lighting layout design showing luminaire mounting heights, aiming focus points, reflector types, number of luminaires per pole and kilowatt consumption. 2. A drawing of the Sports Lighting Structure meeting or exceeding specified criteria. 3. Computer generated point -by -point analysis of field light values as set forth in accordance with lighting performance specifications. 4. Complete photometric reports produced by an independent testing laboratory for each type of reflector to be utilized to achieve performance criteria. 5. Computer generated spill/glare analysis in accordance with lighting performance specifications. 6. Written statements of model number and manufacturer for all equipment bid. 7. Written warranty from the manufacturer covering entire structure as outlined in specifications. 8. Certified engineer, independent of manufacturer, shall verify and stamp wind load test of luminaire assembly to meet or exceed structural strength as described in specifications. Please note, EPA test does not constitute mis- alignment verification. 9. UL Listing - Bidder shall supply, in advance of bid, a page summarizing the Underwriters Laboratory listing numbers covering the entire luminaire assembly and pole lighting structure being bid for the owner's review and retention. 10. Manufacturer shall submit in writing a minimum of five similar lighting projects in the 'state of California where the specifications outlined have been met. Include the project name, contact person and telephone numbers. 11. Manufacturer shall submit a letter guaranteeing that footcandle levels and uniformities as specified will be met. In addition, manufacturer's remedy to deficiencies will be noted. NOTE: Penalty clause for the non-conformance under energy usage of the specifications. 16 24 187 12. There shall be provided by the pole supplier sufficient data and calculations to show that the specified criteria will be met, including a foundation design certified by an engineer in the state of California. 13. ITL reports must be submitted with bid. Failure to do so will be cause for immediate rejection of bid. Failure to provide any of the above described documentation will be grounds for immediate rejection. 17 25 188 SECTION 09860 - ANTI -GRAFFITI COATINGS I. GENERAL A. Summary: 1. Section includes Graffiti Resistant Coatings 2. Related Sections: Section 09900 - Painting: Applicable preparation and application requirements. B. Submittals: 1. Product Data In accordance with the provisions of Section 01340, submit complete manufacturer's literature and specifications. Include complete lists of materials proposed for use, giving the manufacturer's name, product numbers, and product information sheets for each specified item (four copies). 2. Samples When specified system requires that the graffiti resistant coating be applied over a paint color, submit sample of system showing each coat. The architect will use this sample to approve color. 3. Application and Safety Submit the manufacturer's recommended methods of installation, including limitations, safety and environmental cautions, material safety data sheets, and application rates. C. Quality Assurance 1. Qualifications a. Use products by manufacturers regularly engaged in manufacturing of this product and with a history of at least three successful applications within the last three years. b. Use skilled workers who are thoroughly trained and experienced and who are complete familiar with the specified requirements and methods. 2. Regulatory Requirements Comply with applicable codes and regulations. All products must comply with current VOC requirements for the air quality management district where application takes place. Where those requirements conflict with this Specification, comply with the more stringent provisions. 3. Field Samples Apply the system as specified in a designated area in accordance with Section 01440. This will serve as an indication that applicator can provide acceptable results and will be used as the standard for the rest of the work. 1 09860 - Anti -Graffiti Coatings 18. 26 D. Delivery, Storage, and Handling 1. Acceptance at Site Materials shall be delivered to Project in original containers, complete sealed and bearing name of coating contained therein. 2. Storage and Protection Use all means necessary to protect the materials of this Section before, during, and after installation. E. Project Conditions 1. Project Conditions Do not apply coatings when surface temperature is more than 90°F in the shade, or when the relative humidity is more than 70 percent. Do not apply coating when adverse weather conditions are imminent. II. PRODUCTS A. Manufacturers 1. Design is based on products manufactured by Dunn -Edwards Corporation, Los Angeles, CA (213) 771-3330 and Okon, Inc., Lakewood, CO. Okon products are distributed by Dunn -Edwards Corporation or equal. B. Materials 1. Clear Finish Over Block Masonry Types a. Waterborne sealer with an active solids content of 10% b. Clear Finish. A two component aliphatic urethane polyester based mixture. III. EXECUTION A. Examination: 1. Verification of Conditions Prior to the commencement of the Work of this Section, examine the installed work of other trades and verify that all such work is completed or properly corrected to the points where this installation may properly commence. Commencement of work will indicate that applicator has accepted the conditions. B. Preparation: 1. Protection Protect and cover finished work and materials of all other traded that may be affected by work of this Section during coating application. Protect all surrounding vegetation and adjacent areas from overspray. 2 09860 - Anti -Graffiti Coatings 27 1,10 C. D. E. 2. Surface Preparation a. Substrates to receive sealers or primers prior to graffiti resistant coatings must be cleaned of all dirt, bondbreakers, and all other foreign materials that will adversely affect the required appearance of the finished product. b. Power wash all surfaces in accordance with manufacturer's recommendations. Application: 1. General a. Apply primers, paints, and coatings in strict accordance with the manufacturer's recommendations as accepted by the Architect or Landscape Architect. b. The number of coats specified is the minimum that will be applied. Apply additional coats when undercoats, stains, or other conditions show through final paint coat, until paint film is of uniform color and appearance. C. When additional coats of the graffiti resistant coating are required, allow no more than 48 hours between coats. d. Apply a total dry film thickness of not less than 1.2 mils for primers and paint finishes and not less than 1.5 mils for graffiti resistant coatings. Cleaning, Touch -Up, and Refinishing 1. General a. Carefully remove all splatters, spots, and blemishes caused by work of this Section. b. Upon completion of the work, remove all rubbish, cans, and accumulated materials. All areas must be left in a clean and orderly condition. C. Runs, sags, misses, holidays, stains, and other defects in the coated surfaces, including inadequate coverage and mil thickness will be satisfactorily touched -up or refinished. 2. Removal of Graffiti a. Gramover Graffiti Remover, a water soluble solvent. 3. Curing of Polyurethane Enamels. a. Seven to ten days curing time required in order for coating to resist graffiti Finish Schedule: Block Masonry Types (Clear Gloss Finish) One Coat OKON, Masonry Sealer (W 2) Two Coats ULTRASHIELD, Clear Polyurethane Enamel (IP 631) 3 09860 - Anti -Graffiti Coatings ATTACHMENT 2 La Quinta Community Park Skate Park Lighting Project Specifications for Concrete Work 29 SECTION 03200 - CONCRETE FORMWORK I. GENERAL The provisions of the Standard Specifications for Public Works Construction (SSPWC) 1997 edition apply except as modified herein. A. Work Included in this Section: Deliver and store all material in such a manner as to protect it from damage and deterioration. Design, construction, and safety of all formwork shoring and reshoring shall be the complete responsibility of the Contractor. It shall be the responsibility of the Contractor to insure that all applicable safety laws are strictly enforced and to maintain a safe construction project. B. Related Work Specified Elsewhere: Concrete reinforcement: Section 03200 Cast -in -place concrete: Section 03300 Rough Carpentry: Section 06100 C. quality Assurance: The following codes and standards apply to, and form a part of, this section, where applicable: Product Standard PS 1-74 for Softwood Plywood. American Concrete Institute Standard Recommended Practice for Concrete Formwork, ACI 347. II. PRODUCTS A. Materials: Where finish concrete is below grade or scheduled to be plastered, plywood or sawed lumber formwork shall be constructed of substantial material as selected by the Contractor. Where finished concrete is above grade *and scheduled to be exposed, use Plyform Class I and 11 B-B, EXT-DFPA. Form coating shall be a non -grain -raising and non -staining type that will not leave residual matter on the surface of the concrete or adversely affect bonding to concrete of paint, plaster, or other applied materials. III. EXECUTION A. Erection: All concrete above grade shall be cast -in -plywood forms. 1 03100 - Concrete Formwork 193 30 All concrete below grade shall be cast -in -plywood or sawed lumber forms. Concrete below grade may be poured directly against earth in open trenches where specifically approved by the Structural Engineer. All forms shall be constructed true to line and level, sufficiently tight to prevent leakage of mortar. and shall conform exactly to the dimensions of the finished concrete as shown on the drawings. In walls and columns over 8' high, clean out panels shall be provided at the bottom of forms to facilitate cleaning prior to pour. Where studs in formwork are spaced not over 12" o.c., 5/8" minimum plywood shall be used. Where studs are spaced not over 16" o.c., 3/4" minimum plywood shall be used. For cheek walls Contractor shall form and pour all stairs first. Cheek walls shall be formed and poured after acceptance of the step construction. Cheek walls shall be a minimum of 10" wide. Place long dimension of plywood sheets perpendicular to direction of studs. e. Removal of Forms: Do not disturb or remove forms until the concrete has developed sufficient strength to safely sustain its own weight and the superimposed loads above. After concrete is placed, the following minimum time periods shall elapse before the removal of forms: Forms Shores Sides of walls and edges of slabs and footings. 3 days5 days e 2 03100 - Concrete Formwork 1911 31 SECTION 03200 - CONCRETE REINFORCEMENT I. GENERAL The provisions of the Standard Specifications for Public works Construction (SSPWC) latest edition apply except as modified herein. A. work Included in this Section: Bundle reinforcement and tag with suitable identification to facilitate sorting and placing. Store all reinforcement to protect from rust, oil, dirt. and splash. 6. Related Mork specified Elsewhere: Concrete formwork: Section 03100 Cast -in -Place Concrete: Section 03300 Miscellaneous Metals: Section 05010 Concrete Specialty - Shotcrete: Section 03360 C. Quality AssuraDCe: Material quality standards and testing procedures shall be in accordance with the American Society for Testing Materials, hereinafter referred to as "ASTM". All ASTM standards and testing procedures shall be the latest requirements. Fabrication and installation of reinforcing steel shall be in conformance with the Manual of Standard Practice for Detailing Reinforced Concrete Structures ACI 315. Tests and Inspections: Tests and inspections shall be made by a testing laboratory approved by the Structural Engineer. The cost of sampling and testing required by these Specifications shall be borne by the Owner. Sampling of reinforcing steel shall be done by a representative of the testing laboratory. One tensile and one bend test shall be made of each ten tons or fraction thereof for each size reinforcing steel bar 05 and larger. These tests shall be performed only if required by the Test and Inspection Request form prepared by the Structural Engineer. Prepare and distribute copies of test reports to City Engineer. Additional tests shall be made when and as directed by the Structural Engineer. Costs of test shall be borne by the Contractor. a. submittals: The Contractor is not required to submit placing drawings for approval. All reinforcing will be checked in its installed position. 1 03200 - Concrete Reinforcement 195 32 II. PRODUCTS A. Materials: Reinforcing steel bars shall be of the Intermediate Grade conforming to ASTM A615, Grade 40, and shall be rolled from new billets. All bars shall be identified by mill. heat numbers. Steel support chairs shall be galvanized. Steel chairs making contact with exterior concrete surfaces shall have plastic coated legs so that finished concrete surfaces will not be marred or stained by rusting. Tie wire shall be 16 gauge annealed wire. Welded wire fabric shall conform to ASTM A-185. B. Fabrications Fabricate bars of indicated size. Accurately form to shapes and lengths indicated by methods not injurious to the materials. Do not heat reinforcement for bending. Bars with kinks or bends not scheduled will be rejected. III. EXECUTION A. Placings Coordinate all 'work with other trades. All bars shall be as shown on the drawings, accurately placed and wired in position by 16 gauge annealed wire. Tie stirrups to bars at both top and bottom. Bend wire ties away from forms. Maintain proper distance and clearance between parallel bars and forms. Provide metal spreaders and spacers to hold steel in position as necessary. Support steel at proper height upon approved chairs, transverse steel bars with hangers, or in other manner as necessary to accurately place and secure bars. Maintain clear spacing between parallel bars of not less than 1 h times the bar diameter. but in no case less than 1 J10. Lap and splice bars in the manner and at the locations shown on the drawings. ` Bars on footings or slabs on grade shall be supported on concrete blocks. Reinforcing steel in beams and suspended slabs shall be supported on steel chairs. Provide additional reinforcing bars at sleeves and openings. Before placing reinforcing and again before concrete is placed, clean reinforcement of loose mill scale, oil or other coating that might destroy or reduce bond. Splices shall be made with a lap of 30 bar diameters unless noted otherwise. 2 03200 - Concrete Reinforcement 196 33 SECTION 03300 - CAST -IN -PLACE CONCRETE (VERTICAL ELEMENTS) I. GENERAL The provisions of the Standard Specifications for Public Works Construction (SSWC) latest edition apply except as modified herein. Available through Building News Publicvtions. Telephone !: (714) 517-0970. A. Related Work Specified Elsewhere: Concrete.formwork. Concrete reinforcement. Concrete specialty - Shotcrete. Miscellaneous Metals. B. quality Assurance: Material quality standards and testing procedures shall be in accordance with the American Society for Testing Materials, hereinafter referred to as "ASTM". All ASTM standards and testing procedures shall be the latest requirements. All tests shall be wade by a testing laboratory acceptable and approved by the City Representative. The cost of sampling and testing concrete required by the specifications shall be borne by the City. One mechanical analysis and one decantation test shall be made of the sand and coarse aggregate proposed for the work. Concrete specimens shall be taken when directed by the City Representative. At least one pair of specimens shall be taken from each pour of concrete or from each one -hundred cubic yards of concrete or major fraction thereof. One cylinder from each pair shall be tested at 7 days. One from each pair shall be tested at the age of 28 days. Concrete for specimens shall be taken from place of deposit. Specimens shall be prepared and tested in accordance with the latest ASTM specifications. Additional tests shall be made when and as directed by the City Representative. Cost of additional tests shall be borne by City. Defective Concrete: "F Should concrete strengths not attain the minimum specified at 28 days, the area of substandard work shall be.examined by the City Inspector. The defective concrete shall be removed and replaced or the work shall be strengthened in a manner as directed by the City inspector. The cost of all examination and testing of defective material, as well as corrective measures, shall be borne by the Contractor. C. Record Drawings: The Contractor shall provide record drawings that accurately locate embedded utilities and components when they are concealed from view. 1 03300 - Cast -in -Place Concrete 34 197 The cost of all examination and testing of defective material, as well as corrective measures, shall be borne by the contractor. II. PRODUCTS A. Materials: All concrete for the project shall have a minimum ultimate compressive strength at 28 days of 3,500 psi. Portland cement shall be Type II, low alkali, and shall conform to ASTM C150. Concrete aggregate shall conform to ASTM C33. All aggregate shall be well graded and selected from'a source that has a proven history of non -reactivity and shall conform to ASTM c 28g. Maximum aggregate size shall be one (1) inch. Fine aggregate shall consist of washed natural sand having hard, strong and durable particles and which does not contain more than 24 by weight of clay, loam, shale, alkali, organic matter or other deleterious substances. Coarse aggregate shall consist of clean, hard. fine grained, sound crushed rock or gravel, which does not contain more than 5% by weight of flat, chip -like. thin, elongated, friable or laminated pieces. Any piece having a major dimension in excess of two and one-half (2 h) times the average thickness and which will adversely affect the strength of the concrete shall not be used. Water shall be clean and free from deleterious amounts of acids, alkalis, and organic materials. B. Proportions and Mixing: The concrete shall be composed of cement, sand and coarse aggregate in the proportions as determined by the testing laboratory. The water/cement ratio shall be a maximum of 0.48. Maximum slump of concrete shall be four (4) inches. The concrete shall be mixed as directed herein: Each transit mixer shall be equipped with automatic devices for recording the number of revolutions of the drwa prior to completing the,mixing, with peripheral drum speed of approximately 200 feet per minute. Transit -six concrete shall be mixed for a period of not less than ten minutes. At least three minutes of the mixing period shall be immediately prior to discharging at the job. Transit -mix concrete shall not be delivered to the work site with the total specified amount of water incorporated therein. Two gallons of water per cubic yard shall be withheld. and may be incorporated in the six. before the concrete is discharged from the mixer truck. Transit -mix concrete shall be rejected if not placed in final position within ninety (g0) minutes after water is first added to the batch. The concrete, at time of placing, shall be in such condition that it can be properly placed. 2 03300 - Cast -in -Place Concrete 35 193 Concrete shall be air -entrained by use of an approved admixture to provide an air content of S-1/2% t A. Submit Aix design for review by City. III. EXECUTION A. Placing of Concrete: Before the -placing of any concrete, all forms shall be thoroughly cleaned and wet. Concrete shall be poured into forms immediately after it is mixed, and so that no separation will occur. No concrete which has stood for more than fifteen (15) minutes after leaving the mixer shall be used. Concrete shall be rejected if not placed in final position within ninety (go) minutes after water is first added to the batch. All forms and reinforcement to be inspected prior to pour by City Representative. Sandblast all surfaces on which concrete is to be placed. City Representative to approve a 240 square sample. Maximum free drop of concrete shall not be more than 5'-0•. Use tremies in deep sections. The location of all stoppages shall be approved by the City Representative. The flow surface of the freshly poured concrete shall be level wherever any pour is stopped and tight dams shall be built as necessary to accomplish this result. Construction joints shall be made only when unavoidable, and then only at the point determined by the City Representative. Details of such joints shall be as directed by the City Representative. Before the placing of any concrete. the surface of.the previously poured concrete shall be wet. 3 03300 - Cast -in -Place Concrete 193 36 SECTION 03320 - CONCRETE (FLATMORK) I. GEREM The provisions of the Standard Specifications for Public Works Construction (SSWC) latest edition apply except as modified herein. Available through Building Hews Publicotfons, Telephone #: (714) 517-0970. A. work Included in This Section: Exterior walks and slabs. as shown on drawings. Forms. Reinforcing steel. Cement finish, joints and saw cuts. Mall footings. Curing. Testing. Miscellaneous concrete items. B. Related Work Specified Elsewhere: Concrete for work. Concrete finishes. Subgrade preparation. Miscellaneous Metals. C. standards: Testing, materials and workmanship shall conform to the requirements of the applicable Building Code. II. PRODUCTS A. Materials All concrete for the project shall have a minimum ultimate compressive strength at 28 days of 3,500 psi. Portland Cement shall be Type II, low alkali, and shall conform to ASTM C150. Concrete aggregate shall conform to ASTM C33. All aggregate shall be well graded and selected from a source that has a proven history of non -reactivity and shall conform to ASTM C 289. Maximum aggregate size shall be 3/4 inch. Fine aggregate shall consist of washed natural sand having hard, strong and durable particles and which does not contain more than 2% by weight of clay, loam. shale, alkali, organic matter or other deleterious substances. Coarse aggregate shall consist of clean, hard, fine grained, sound crushed rock or gravel, which does not contain more than 5% by weight of flat, chip -like, thin, elongated, friable or laminated pieces. Any piece having a major dimension in excess of two and one-half (2-1/2) times the average thickness and which will adversely affect the strength of the concrete shall not be used. Water shall be clean and free from deleterious amounts of acids, alkalis, and organic materials. 1 03310 - Concrete Air entrainment admixture shall conform to Standard Specification Section 6.02.3(3)A and ASTM CZ60. B. Proportions and Mixing: The concrete shall be composed of cement, sand and coarse aggregate in the proportions as determined by the testing laboratory. Submit mix design for review by city. The water/cement ratio shall be a maximum of 0.48. Maximum slump of concrete shall be four (4) inches. The concrete shall be mixed as directed herein: Each transit mixer shall be equipped with automatic devices for recording the number of revolutions of the drum prior to completing the mixing, with peripheral drum speed of approximately 200 feet per minute. Transmit -Aix concrete shall be mixed for a period of not less than ten minutes. At least three minutes of the nixing period shall be immediately prior to discharging at the job. Transit -mix concrete shall not be delivered to the work site with the total specified amount of water incorporated therein. Two gallons of water per cubic yard shall be withheld. and may be incorporated in the mix, before the concrete is discharged from the :mixer truck. Transit -mix concrete shall be rejected if not placed in final position within ninety (90) minutes after water is first added to the batch. The concrete, at time of placing, shall be in such condition that it can be properly placed. Concrete shall be air entrained by use of an approved admixture to provide an air content of 5-1/2* t It. C. Crack Joint Control: As shown on plans. See Section 03350 - Concrete finishes - Material "E" install per manufacturer's recommendations. D. concrete Formwork: General. Forms shall be constructed true to line and grade; shall conform to the shape and dimensions of the required concrete and shall be sufficiently tight to prevent the leakage of mortar and sufficiently.rigid to prevent displacement or sagging between supports. Forms shall be so constructed that they can be removed without damage to the concrete. Forms for curved surfaces shall be so constructed and placed that the finished surface will not deviate from the arc of the curve, flat spots shall not be permitted. Approval of Forms and Reinforcement. Forms and metal reinforcement shall be checked and approved by the City Representative before concrete is placed. 2 03310 - Concrete 38 O.'W 1 III.. EXECUTION D. General: install concrete and cement finish work true to lines, dimensions -and levels, and finish with smooth unblemished surfaces for interior work, exterior finishes specified on plans. Remove and replace defective concrete or cement work with new materials. Permission to patch any defective area shall not be a waiver of the Cities right to require complete removal of defective work if patching does not restore quality and appearance of work. No advertising impression, stamp, or mark of any description will be permitted on surface of concrete or cement finish. E. Cement finish: Compact and tamp concrete as specified to bring 3/8" of mortar to surface, wood float to straight edges and screeds, and apply following finishes. Do Wt use steel or plastic floats of any kind for initial floating operations. Unless otherwise specified, do not apply following finishes until surface water disappears and surface is sufficiently hardened. Remove any bleed water and laitance as it appears. finish texture to be a light sandblast finish. F. Skateboard Area i. Skateboard Surface a. All surfaces to be lightly sandblasted. b. Contractor to do a 2' x 2' test area for City approval. C. Thickness; 4• minimum. d. Expansion Joints: as noted on plans a. Location of Expansion and Control Joints: Locate expansion and control joints to least impair the strength and appearance of the structure. in no case place an intersecting construction joint in such a way that two intersecting walks are separated by a construction or control joint at the point. of intersection. Transition curves shall be part of a continuous pour of the intersection slab. Expansion joints shall be a maximum of 20 feet apart, with control joints a MaxiMM of 10 feet apart. Exception to this are specialty work joints which will be laid out as shown on the drawings. Contractor shall obtain City Representative's approval of layout showing proposed location of joints before pouring concrete. H. caulking: Caulking of expansion joints where called for on drawings, shall be done with a non -tracking, multi -part flow type, self -leveling, polyurethane sealant manufactured by Chem -Seal, W.R. Grace, 3-M or approved equivalent. Color shall be medium gray. Caulking shall be done by an experienced applicator in a workmanlike manner, in smooth straight runs, after thoroughly cleaning and priming joints. All work shall be done in strict accordance with manufacturer's printed recommendations. Do not permit traffic to travel over sealed joints until sealer has fully cured. 3 03310 - Concrete 39 �� i. Protection: After the concrete has significantly hardened to allow foot traffic spread 2" of plaster sand evenly over all concrete flat surfaces. Once the project is complete (minimum 28 curing days), remove sand from site. M. quALITY CONTROL A. smoothness Tolerance: Exterior cement finish surfaces shall be of such smoothness and evenness that they shall contact the entire length of a 101 straight edge or template (drag form) cut to design radius or form, laid in any direction, with an allowable tolerance of 1/8 inch. Any operations necessary to achieve this result shall be performed by the Contractor at no additional cost to the City . B. Inspections: Inspections will be provided as necessary. Call for inspection two (2) working days prior to need. The Contractor shall call for inspection during specific phases of construction. They shall include: All formwork prior to pouring. All footings prior to pouring. Subgrade prior to pouring. Reinforcement. Drag form approval. Contractor shall notify the City Representative two (2) working days prior to pouring any concrete. Any work covered prior to inspection shall be opened to view by the Contractor at his expense. C. Testing: Tests required. Compression tests of concrete -shall be made as required by the Building Code except that compression tests of any grade of concrete shall be made whenever the quantity of that grade used in the project exceeds 23 cubic yards. At least four identical cylinders of each grade of concrete for poured in place and shotcrete shall be taken of each 10o cubic yards of concrete or fraction thereof placed in the work. The cylinders shall be tested in a testing laboratory and test reports submitted.to the City.. Storage of test cylinders on the site and after delivery to the testing shall be in accordance with A.S.T.M. Designation C31. One mechanical analysis and one decantation test shall be made of the sand and coarse aggregate proposed for the work. Concrete specimens shall be taken when directed by the City Representative. At least one pair of specimens shall be taken from each pour of concrete or from each one -hundred cubic yards of concrete or major fraction thereof. One cylinder from each pair shall be tested at 7 days. One from each pair shall be tested at the age of 28 days. concrete for specimens shall be taken from place of deposit. Specimens shall be prepared and tested in accordance with the.latest ASTM specifications. 4 03310 - Concrete 40 4 J Additional tests shall be made when and as directed by the City Representative. Cast of additional tests shall be borne by the City. Should the strength by test fail, the mix shall be adjusted so that the resulting concrete will comply with the minimum regeiCr'e��actor.and Furtheadditional should the strength of any grade adjustment shall be borne by t by test fall below minimum, and if sucncrete hmthe testsdefective show the concrete t ibein place defective�.ybe the tested by the core method, concrete shall be removed and replaced or adequately strengthened as required under the governing Code; and all expenses involved shall be borne by the Contractor. The cost of sampling and testing defective materials as well as corrective measures shall be borne by the Contractor. 5 03310 - Concrete SECTION 03310A - CONCRETE F. GENERAL The provisions of Title 24 CCR 1991 Edition, except as modified herein'. A. Work Included in This Section: Exterior walks and slabs, as shown on drawings. Forms. Reinforcing steel and wire mesh for concrete. Cement finish, joints, saw cuts and patching. Wall footings and building foundations. Footings for fence post. Setting of items to be inserted into concrete. Curing. Testing. Miscellaneous concrete items. B. Related Work Specified Elsewhere: Concrete finishes - Section 03350. Furnishing and determining location of items to be inserted into concrete. Subgrade preparation. Aggregate base - Earthwork b Grading - Section 02200. - C. Standards: Testing, materials and workmanship shall conform to the requirements of the Standard Specifications and the applicable Building Code. The most stringent requirement shall apply. II. MATERIALS A. Reinforcing Steel and Wire Mesh: Reinforcing steel shall conform to Section 201-2.2 of the Standard Specifications and shall be Grade 40. Wire mesh shall conform to Section 201-2.4, Standard Specifications. B. Portland Cement Concretes All materials shall conform to the requirements of Title 24 Part 2 Chapter 26 CCR. C. Crack Joint Control: Shall be "Quick Joint' or approved equal. Submit samples of preformed materials for approval of the Agency Representative. D. Curing Compound: Type 1' per Section 201-4, Standard Specifications. 1 03310A - Concrete i) . t•- 42 <- J E. Concrete formwork: Tie wire: Black annealed, not lighter than No. 12. Forms shall be constructed of approved materials. lumber for studs, wales, and other structural components shall be No. 2 or better Douglas fir, SISIF, or S4S, not less than 2" in nominal thickness. Plywood shall be Plyform, Grade B-B, either exterior or interior type conforming to Commercial Standard CS45-48 for Douglas fir plywood, not less than 5/8" in thickness when used without sheathing and of any standard thickness when used as a lining. General. Forms shall be constructed true to line and grade; shall conform to the shape and dimensions of the required concrete and shall be sufficiently tight to prevent the leakage of mortar and sufficiently rigid to prevent displacement or sagging between supports. Forms shall be so constructed that they can be removed without damage to the concrete. Forms for curved surfaces shall be so constructed and placed that the finished surface will not deviate from the arc of the curve, flat spots shall not be permitted. Approval of Forms and Reinforcement. Forms and metal reinforcement shall be checked and approved by the Engineering or Building Inspector before concrete is placed. III. EXECUTION A. General: All work shall conform to the requirements of Title 24. Part 2, Chapter 25 CCR. Install concrete and cement finish work true to lines, dimensions and levels, exterior finishes specified on plans. Remove and replace defective concrete or cement work with new materials. Permission to patch any defective area shall not be a waiver of the Engineer's right to require complete removal of defective work if patching does not restore quality and appearance of work. No advertising impression, stamp, or mark of any description will be permitted on surface of concrete or cement finish. Any site furnishings, such as benches, fountains, etc., shall be installed prior to placing any surrounding slab. Sleeves may be used upon approval of shop drawings by Agency Representative. $. Miscellaneous Items of Concrete Work: The Contractor shall thoroughly study the plans to determine the extent of concrete curbs, gutters, and mowing strips, all of which shall be included in the work of this Section. The Contractor shall thoroughly study the Mechanical and Electrical plans to determine the extent of the following and similar items of concrete work which may occur, all of which shall be included in the work of this Section (unless otherwise specified): 2 03310A - Concrete 43 Valve or yard boxes (except pre -cast). Foundations or bases for mechanical and electrical equipment. Concrete pads for exterior cleanouts. Where structural details for the minor structures listed above are not complete, the walls, floors and covers shall be 6" in thickness and reinforced with 3/8" round bars, 6" on centers both ways in center of the members. The Mechanical and Electrical subcontractors shall provide the Contractor with detailed information concerning the location, size and elevation of any and all of the items of the work listed above. They shall also provide all anchor bolts and other inserts that may be required and shall check the setting thereof prior to the pouring of concrete. C. Cement finish: Compact and tamp concrete as specified to bring 3/8" of mortar to surface, wood float to straight edges and screeds, and apply following finishes. Do not use steel or plastic floats of any kind for initial floating operations. Unless otherwise specified, do not apply following finishes until surface water disappears and surface is sufficiently hardened. Remove any bleed water and laitance as it appears. D. Slabs and Walks: 1. Broom Finish: Apply steel float finish as specified hereinbefore. While surface is still sufficiently soft, apply broom finish using approved wire broom. Apply finish perpendicular to direction of traffic. 2. Formed Concrete Stairs and Landings: Form angles neatly and run nosings straight and level to template. Cut risers back as shown. Apply abrasive finish on treads and landings, and give risers a burnished monolithic trowel finish. 3. Expansion joint materials shall be the non -extruding and resilient type consisting of premolded stripe of a durable resilient compound composed of mineral or vegetable matter or a stable mixture of these elements. The surface of the previously constructed concrete shall have a trowel coat of an approved bituminous cement. The filler shall extend to the bottom of the slab and shall be approximately 1/2" below the top of the finished surface. The filler strip shall be secured to insure against mbvement during placing of the concrete. Adjacent strips shall be clipped together to insure continuity and to avoid the possibility of the concrete getting into the expansion joint space. Before the pavement is opened to traffic, the groove above the filler shall be cleaned and then sealed with an approved joint sealing compound, in accordance with paragraph for "Caulking" below. E. Location of Expansion and.Control Jointst Locate expansion and control joints to least impair the strength and appearance of the structure. In no case place an intersecting construction joint in such a way that two intersecting walks are separated by a construction or control joint at the point of intersection. Transition curves shall be part of a continuous pour of the intersection slab. Expansion joints shall be a maximum of 20 feet apart, with control joints a maximum of 10 feet apart. Exception to this are specialty work 3 03310A - Concrete 44 joints which will be laid out as shown on the drawings. Contractor shall obtain Agency Representative's approval of layout showing proposed location of joints before pouring concrete. F. Caulking: Caulking of expansion joints where called for on drawings, shall be done with a non -tracking, multi -part flow type, self -leveling, polyurethane sealant manufactured by Chem -Seal, W.R. Grace, 3-M or approved equivalent. Color shall be medium gray. Caulking shall be done by an experienced applicator in a workmanlike manner, in smooth straight runs, after thoroughly cleaning and priming joints. All work shall be done in strict accordance with manufacturer's printed recommendations. Do not permit traffic to travel over sealed joints until sealer has fully cured. G. Curing: All concrete slabs on grade shall be covered within 24 hours after troweling with a strong waterproof, non -staining, 2-ply kraft paper with an asphalt membrane in the center, reinforced with crossed fibers embedded in the asphalt. The paper shall be lapped 3 inches at the joints and sealed at joints and edges in an approved manner. The paper shall remain in place until removal is authorized. Heavy boards shall be provided when necessary to protect the paper and slabs from damage by other construction work. IV. QUALITY CONTROL A. Smoothness Tolerance: Interior and exterior cement finish surfaces shall be -of such smoothness and evenness that they shall contact the entire length of a 10' straight edge laid in any direction, with an allowable tolerance of 1/8 inch. Any operations necessary to achieve this result shall be performed by the Contractor at no additional cost to the Agency. B. Inspections: Inspections will be provided as necessary. Call for inspection two (2) working days prior to need. The Contractor shall call for inspection during specific phases of construction. They shall include: All form work prior to pouring. All footings prior to pouring. Subgrade prior to pouring. Contractor shall notify the Engineer twenty-four (24) hours prior to pouring any concrete. Any work covered prior to inspection shall be opened to view by the Contractor at his expense. C. Testing: 4 03310A - Concrete 45 W u Tests required. Compression tests of concrete shall be made as required by Title 24 CCR(refer to Section 01410-01420) tests of any grade of concrete shall be made whenever the quantity of that grade used in the project exceeds 25 cubic yards. At least two identical cylinders of each grade of concrete shall be taken of each 100 cubic yards of concrete or fraction thereof placed in the work.. The cylinders shall be tested in a testing laboratory and test reports submitted to the Engineer. Storage of test cylinders on the site and after delivery to the testing shall be in accordance with A.S.T.M. Designation C31. All concrete not covered by the Building Code will be tested according to Standard Specifications. Should the strength by test fail, the mix sha11 be adjusted so that the resulting concrete will comply with the minimum requirements, and all additional expense resulting from such adjustment shall be borne by the Contractor. Further, should the strength of any grade by test fall below minimum, concrete from the defective pours which is in place may be tested by the core method, and if such tests show the concrete to be defective, the concrete shall be removed and replaced or adequately strengthened as required under the governing Code; and all expenses involved shall be borne by the Contractor. 5 03310A - Concrete 46 SECTION 03350 - CONCRETE FINISNES I. GENERAL ition The provisions of the Standard Specifications hrough Building News PubZ Construction i onsSSWC) latest Telephone l�:d (714 j apply except as modified herein. 517-0970. A Scope. Furnish materials and perform labor required to execute this work as indicated on the drawings, as specified, and as necessary to complete the Contract, including, but not limited to, these major items: Finish of all concrete. Curing of flatwork. Sealers. Interlocking Pavers. a. Related Work Specified Elsewhere: Formwork. Reinforcement. C . General Requi renments : 1. Field Conditions. Verify drawing dimensions with actual field conditions. Inspect related work and adjacent surfaces. This section supplements Concrete. Finish all surfaces to present a uniform appearance throughout the area involved, and throughout adjacent areas with the same treatment. All concrete surfaces - flatwork and Shotcrete shall receive a light sandblast finish. All finished surfaces shall conform to the grading plan to drain. All surfaces shall be smooth free of dips, pools or other minor obstructions for a continuous fall to drain. Where finishing occurs adjacent to finished metal or other finished surfaces, particularly where serrated or indented. remove all traces of cement films before it hardens. This applies particularly to steel edges and copings. All Shotcrete surfaces shall be sculpted and shaped with drag forms approved by City representative or Landscape Architect. Trowel surface for a smooth even finish, free of lumps and bumps. Apply a light sandblast finish to all Shoterete surfaces when concrete has cured and hardened. Light sandblast finish shall be applied after the concrete is thoroughly dried and cured. Apply light sandblast finish after a minimum of 20 curing days. 1 03350 - Concrete Finishes 47 4W 2. Samples. Submit 24" square concrete panel samples of the light sandblast finish to the City Representative and Landscape Architect for approval or at the site a small section of the skate park will be used to test for sandblast finish. Landscape Architect or city representative shall be present during sandblast testing. II. MATERIALS A. Portland Cement: Per Section cast -in -place -concrete. B. Aggregates: Per Section cast -in -place -concrete. C. Water: Per Section cast -in -place -concrete. D. Divider Strips Embedded in Concrete FM 03 As indicated on the plans. E. Expansion Joint Sealer for Use Except Where Sealants Specified Under Caulking and Sealants are Required: "Igas Joint Sealer", by Sika Chemical Corp., or other approved by the Architect. F. Sealer: Hunt "MD-7C", Sonneborn "Kure-n=Seal", or Upco "Polyclear".. Apply in accordance with manufacturer's recommendations. Apply to all concrete surfaces. M. EXECUTION A. Floatiag: Bring slabs to proper level, using screeds and strikeoff with a straightedge. Remove excess water and laitance. Compact by rolling with weighted rol-.jers and by tamping with grid tampers. Float with power rotary floating machine. Thoroughly hand tamp areas not accessible for rolling. Float areas not accessible for power floating by hand, using a wood float. Test surface with a 10' straightedge, and eliminate high and low spots of 1/8" or more. Cumulative tolerances are not allowed. i. Screeds. Of such type and construction,. and so spaced and located as to provide surface tolerances specified. Use continuous screeds to provide surface over which to drag straightedges. Refer to requirements under Concrete Section which apply to this work. 2 03350 - Concrete Finishes 48 a. Metal Divider Strips: Where concrete finish against other materials, set combination screed and divider strip, secured in place and protected by shares until concrete on opposite side is installed. Insure that top of screed is at the exact required relationship with the top of the two finished surfaces to finish flush. C. Defective Fiwishingg Finish which is not true to line and plane, which is not thoroughly troweled and properly surfaced as required. which varies in excess of requirements along a 10' straightedge, which scuffs or has a rough top surface (except where required), which does not connect properly to adjoining work, which does not slope to drains, which does not match approved samples, or is not properly cured, will be deemed defective. Remove and replace with proper work and material conforming with contract requirements, and to limits directed by the City Representative. D. Protection: Protect all finished work from damage by impact or from building rubbish. Protect work of others from damage by this work. Protect exposed slabs from soiling from foot traffic and skaters and subsequent work performed after finishing; spread 2" of plaster sand over entire slab. Maintain protection in effective condition during the concrete curing process (min 28 days). Control the use of water so that no damage to previously installed work or finish occurs. 3 03350 - Concrete Finishes 49 � 1 SECTION 03360 - SPECIALTY PLACED CONCRETE - SNOTCRETE I. GENERAL The provisions of the Standard Specifications for Public Works Construction (SSWC) latest edition apply except as modified herein. Available through auilding News pubU cations, Telephone f: (714) 517-0970. A. Related work specified elsewheres Concrete formwork. Concrete reinforcement. Cast -in -Place Concrete. Miscellaneous Metals. 3. Quality Assurance: 1. Material quality standards and testing procedures shall be in accordance with the American Society for Testing Materials. hereinafter referred to as 'ASTM". All ASTM standards and testing procedures shall be the latest requirements. 2. All tests shall be made by a testing laboratory acceptable and approved by the City Representative. 3. Shotcrete shall conform to U.B.C. Code Section 1922 for pneumatically placed concrete. 4. A minimum of three cores shall be taken for each 100 cubic yards, or fraction thereof, of pneumatic concrete deposited. The cores shall be taken and tested by the methods described in U.B.C. Standard No. 26-10. .The cores shall be tested 7 and 28 days from the date the pneumatic concrete is deposited and the tests shall show a 28-day strength at least equal to the (f..:) specified on the plans. S. The cost of sampling and testing concrete required by the specifications shall be borne by the City. 6. One mechanical analysis and one decantation test shall be made of the sand and coarse aggregate proposed for the work. 7. Additional tests shall be made when and as directed by the City Representative. Cost of additional tests shall be borne by City. 8. Should concrete strengths not attain the minimum specified at 28 days, the area of substandard work shall be examined by the City Inspector. The defective concrete shall be removed and replaced or the work shall be strengthened in a manner as directed by the City Representative. 9. The cost of all examination and testing of defective material, as well as corrective measures. shall be borne by the Contractor. II. PRODUCTS A. Materialse 1 03360 - Specialty Placed Concrete - Shotcrete 50 013 1. The proportions of cement to aggregate in loose dry volumes shall not be less than 1 to 4-1/2. The quantities of aggregate and cement shall be accurately measured. All Shotcrete shall attain a minimum compressive strength of 3500 psi 28 days. 2. All cement shall comply with U.B.C. Code Section 1903.Z. 3. All aggregates shall comply with U.B.C. Code Section 1903.3. 4. Portland Cement shall be Type I1, low alkali, and shall conform to ASTM C150. 5. Concrete aggregate shall conform to ASTM C33. All aggregate shall be well graded and selected from a source that has a proven history of non -reactivity. Maximum aggregate size shall be 3/8 inch. 6. Fine aggregate shall consist of washed natural sand having hard, strong and durable particles and which does not contain more than 24 by weight of clay, loam, shale, alkali, organic matter or other deleterious substances. 7. Coarse aggregate shall consist of clean, hard, fine grained, sound crushed rock or gravel, which does not contain more than 6% by weight of flat, chip -like, thin, elongated, friable or laminated pieces. Any piece having a major dimension in excess of two and one-half (2-1/2) times the average thickness and which will adversely affect the strength of the concrete shall not be used. 8. Water shall be clean and free from deleterious amounts of acids, Alkalis and organic materials. S. Proportions and Mixing 1. The concrete shall be composed of cement, sand and aggregate in the proportions as determined by the testing laboratory. 2. The proportions of water to cement shall be accurately controlled so as to produce thorough and uniform hydration of the concrete, which..when placed, will form a homogenous mass containing neither sags nor dry sand formation. An accurately calibrated pressure gauge shall be provided in the water line. The water shall have a minimums pressure of 60 psi plus an additional 5. psi for each 10 feet of rise in elevation between the pressure gauge and the nozzle. 3. The cement and aggregate shall be mixed without added water in a batch mixer for less than one minute and shall be discharged completely before the mixer is recharged. Other types of mixing equipment may be used when approved by the department. Nozzles used to place concrete for structural purposes shall have a maximum size of 1-5/8 inches. 4. Unfinished work shall not be allowed to stand for more than 30 minutes unless all abrupt edges are sloped to a thin edge. Before resuming work, this sloped portion shall be cleaned and where the concrete has reached its initial set, the surface shall be thoroughly wetted. III. EXECUTION A. Placing of Shotcrete 1. Placing of pneumatic concrete shall be started at the bottom of the section and the top surface shall be held at a minimum of 45 degrees with the horizontal to 2 03360 - Specialty Placed Concrete - Shotcrete facilitate removal of rebound. Pneumatic concrete shall be applied to beams from the side to permit removal of the rebound. 2. Pneumatic concrete shall not be placed where the stream from the nozzle cannot directly impinge on the surface on which the concrete is to be placed. Where shooting conditions are difficult, the proper results shall be obtained by maintaining normal air pressure and water ratio and reducing supply of material. 3. Whenever possible, except when enclosing reinforcing steel, the nozzle shall be held at right angles to the surfaces and a distance of not more than 3 feet. 4. Any deposits of loose sand or rebound shall be carefully removed from the surface before applying additional concrete. When enclosing reinforcing steel, the nozzle shall be held so as to direct the material around the bars. Each bar shall be shot from at least two directions. A second experienced person equipped with an air jet shall attend the operators whenever reinforcing steel is being enclosed and shall carefully precede the nozzle and blow out all rebound and sand which may be lodged behind the steel. 5. The air pressure at the machine end of the hose shall be not less than 45 psi for hose lengths of 100 feet or less and shall be increased 5 psi for each additional 50 feet or fraction thereof, for hose in excess of the first 100 feet. in addition, the air pressure shall be increased 5 psi for each 25 feet, or fraction thereof, of vertical rise. 6. Pneumatic concrete shall be kept constantly damp for a period of not less than 14 days after being deposited, unless other approved methods are specified on the stamped plans. 7. Rebound, pockets, sags. sloughing and other defects occurring.in the work shall be cut out and replaced. 8. The reinforcing steel shall be securely tied in place in a manner that prevents any movement during the gunite installation. 9. Lap splices in reinforcing bars shall be by the noncontact lap splice method with at least 2 inches clearance between bars. The City Representative may permit the use of contact lap splices when necessary for the support of the reinforcing provided it can be demonstrated by means of preconstruction testing, that adequate encasement of the bars at the splice can be achieved and provided that the splices are placed so that a line through the center of the two spliced bars is perpendicular to the surface of the Shotcrete work. 10. The finish surface shall be troweled smooth and lightly sandblasted to match other proposed concrete work. 11. Form and reinforcement shall be inspected prior to application. Drag form for all ramps and transistors shall be approved prior to application. 12. Contractor to continuously check continuity of degrees of slope or radius of transitions with drag forms. No unevenness, bumps in the concrete or low spots will be approved. 3 03360 - Specialty Placed Concrete - Shotcrete 52 �i J ATTACHMENT 3 La Quinta Community Park Skate Park Lighting Project Professional Services Agreement 53 4 16 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and ("Consultant"). The parties hereto agree as follows: 1.0 SERVICES OF CONSULTANT 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Consultant shall provide those services related to the Design/Build Contract for the La Quinta Skate Park and Amenities as specified in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by this reference (the "services" or "work"). Consultant warrants that all services will be performed in a competent, professional, and satisfactory manners in accordance with the standards prevalent in the industry for such services. 1.2 Compliance with Law. All services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of La Quinta and any Federal, State or local governmental agency of competent jurisdiction. 1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein, Consultant shall obtain at its sole cost and expense such licenses, permits and approvals as may be required by law for the performance of the services required by this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the performance of the services required by this Agreement. 1.4 Familiarity with Work. By executing this Agreement, Consultant warrants that (a) it has thoroughly investigated and considered the work to be performed, (b) it has investigated the site of the work and fully acquainted itself with the conditions there existing, (c) it has carefully considered how the work should be performed, and (d) it fully understands the facilities, difficulties and restrictions attending performance of the work under this Agreement. Should Consultant discover any latent or unknown conditions materially differing from those inherent in the work or as represented by City, it shall immediately inform City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof). 1.5 Care of Work. Consultant shall adopt reasonable methods during the life of the Agreement to furnish continuous protection to the work performed by Consultant, and the equipment, materials, papers, plans, and other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the work by City, except such losses or damages as may be caused by City's own negligence. The performance of services by Consultant shall not relieve Consultant from any obligation to correct any incomplete, inaccurate or defective work at no further cost to City, when such inaccuracies are due to the negligence of Consultant. 1.6 Additional Services. In accordance with the terms and conditions of this Agreement, Consultant shall perform services in addition to those specified in the Scope of Services as required to provide the proper completion of the La Quinta Skate Park and Amenities. There will be no change orders or amendments to this contract. N:\PROJECTS\CLQ T Drive Project Files\PROJECTS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreement.doc Page 1 of 9 54 .17 2.0 COMPENSATION 2.1 Contract Sum. For the services rendered pursuant to this Agreement, Consultant shall be compensated in accordance with Exhibit "B" (the "Schedule of Compensation") in a total amount not to exceed Dollars ($ ) (the "Contract Sum"). The method of compensation set forth in the Schedule of Compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the services, payment for time and materials based upon Consultant's rate schedule, but not exceeding the Contract Sum, or such other methods as may be specified in the Schedule of Compensation. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, and similar costs and expenses when and if specified in the Schedule of Compensation. 2.2 Method of Payment. Any month in which Consultant wishes to receive payment, Consultant shall submit to City no later than the tenth (10th) working day of such month, in the form approved by City's Finance Director, an invoice for services rendered prior to the date of the invoice. Such invoice shall (1) describe in detail the services provided, including time and materials, and (2) specify each staff member who has provided services and the number of hours assigned to each such staff member. Such invoice shall contain a certification by a principal member of Consultant specifying that the payment requested is for work performed in accordance with the terms of this Agreement. City will pay Consultant for all expenses stated thereon which are approved by City pursuant to this Agreement no later than the last working day of the month. 3.0 PERFORMANCE SCHEDULE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The City Council has directed that the La Quinta Skate Park and Amenities be completed and operational by August 2004. a. Liquidated Damages: It is agreed by the parties to the Contract that time is of the essence; and that in the case all work is not completed before or upon the expiration of the time limit set forth, damage will be sustained by the City and it is, therefore, agreed that the Design/Build Team will pay to the City an amount; for contracts in excess of $100,000 in value with a contract length of greater than 30 consecutive calendar days, shall be $500 per day, for contracts less than $100,000 in value with a contract length of less than 30 consecutive calendar days, shall be $300 per day, plus any amount of actual damages incurred by the City caused by the Design/Build Team's failure to complete the work in the time agreed. It is further agreed that the City has the right to deduct from payments actual costs to the City for engineering, inspection, superintendence, and other overhead expenses, which are directly chargeable to the Contract, and which accrue during the period of such delay, except that the cost of final surveys and preparation of the final estimate shall not be included in such charges. The expenses and damages described above will be deducted from any money due the Design/Build Team under this Contract; the Design/Build Team and his sureties shall be liable for any such excess cost. The Design/Build Team shall not be deemed in breach of its Contract and no forfeiture due to delay shall be made because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the Design/Build Team, provided the Design/Build Team requests an extension of time in accordance with procedures approved by the Public Works Director. Unforeseeable causes of delay beyond the control of the N:\PROJECTS\C1.Q T Drive Project Files\PROJECTS\2003 Prjcu\2003-12 Community Park Skate Park\SkateParkAgreement.doc Page 2 of 9 55 18 Design/Build Team shall include acts of God, acts of a public enemy, acts of the government, or acts of another contractor in the performance of a contract with the City, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, weather, or delays caused by failure of the City or the owner of a utility to provide for removal or relocation of existing utility facilities. Delays caused by actions or neglect of the Design/Build Team, its agents, employees, officers, subcontractors, or suppliers shall not be excusable. Excusable delays (those beyond Design/Build Team's control) shall not entitle the Design/Build Team to any additional compensation. The sole remedy of the Design/Build Team shall be to seek an extension of contract time. 3.2 Schedule of Performance. All services rendered pursuant to this Agreement shall be performed diligently and within the time period established in Exhibit "C" (the "Schedule of Performance"). Extensions to the time period specified in the Schedule of Performance may be approved in writing by the Contract Officer. 3.3 Force Majeure. The time period specified in the Schedule of Performance for performance of the services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Consultant, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than City, and unusually severe weather, if Consultant shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the services for the period of the forced delay when and if in his or her judgement such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. 3.4 Term. Unless earlier terminated in accordance with Sections 7.7 or 7.8 of this Agreement, this Agreement shall continue in full force and effect until completion of the services, except as otherwise provided in the Schedule of Performance. 4.0 COORDINATION OF WORK 4.1 Representative of Consultant. The following principals of Consultant are hereby designated as being the principals and representatives of Consultant authorized to act in its behalf with respect to the work specified herein and make all decisions in connection therewith: F]F rel It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services hereunder. The foregoing principals may not be changed by Consultant and no other personnel may be assigned to perform the service required hereunder without the express written approval of City. 4.2 Contract Officer. The Contract Officer shall be the Public Works Director/City Engineer or such other person as may be designated by the City Manager of City. It shall be Consultant's responsibility to assure that the Contract Officer is kept informed of the progress of the N:\PROJECTS\CLQ T Drive Project Files\PROJF.CTS\2003 Prjcts\2003-12 Conmuoity Park Skate Park\SkateParkAgreemeat.doc Page 3 of 9 56 4.19 performance of the services and Consultant shall refer any decisions which must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability and reputation of Design/Build Team, its principals and employees were a substantial inducement for City to enter into this Agreement. Except as set forth in this Agreement, Design/Build Team shall not contract with any other entity to perform in whole or in part the services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be assigned or transferred, voluntarily or by operation of law, without the prior written approval of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode or means by which Consultant, its agents or employees, perform the services required herein, except as otherwise set forth. Consultant shall perform all services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Consultant shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. 4.5 City Cooperation. City shall provide Consultant with any plans, publications, reports, statistics, records or other data or information pertinent to services to be performed hereunder which are reasonably available to Consultant only from or through action by City. 5.0 INSURANCE, INDEMNIFICATION AND BONDS. 5.1 Insurance. Consultant shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, personal and public liability and property damage insurance against all claims for injuries against persons or damages to property resulting from Consultant's acts or omissions rising out of or related to Consultant's performance under this Agreement. The insurance policy shall contain a severability of interest clause providing that the coverage shall be primary for losses arising out of Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to any such loss. A certificate evidencing the foregoing and naming City and its officers and employees as additional insured shall be delivered to and approved by City prior to commencement of the services hereunder. The amount of insurance required hereunder shall be determined by the Contract Sum in accordance with the following table: Contract Sum Personal Injury/Property Damage Coverage Less than $50,000 $100,000 per individual; $300,000 per occurrence $50,000 - $300,000 $250,000 per individual; $500,000 per occurrence Over $300,000 $500,000 per individual; $1,000,000 per occurrence Consultant shall carry automobile liability insurance of $1,000,000 per accident against all claims for injuries against persons or damages to property arising out of the use of any automobile by Consultant, its officers, any person directly or indirectly employed by Consultant, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Consultant's performance under this Agreement. The term "automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed for travel on public roads. The automobile insurance policy shall contain a severability of interest clause providing that coverage shall be primary for losses arising out of Consultant's performance hereunder and neither City nor its insurers shall be required to contribute to such loss. A certificate N:\PROJECTS\CL.Q T Drive Project Files\PROJECTS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreement.doc Page 4 of 9 (1 57 evidencing the foregoing and naming City and its officers and employees as additional insured shall be delivered to and approved by City prior to commencement of the services hereunder. Consultant shall carry Workers' Compensation Insurance in accordance with State Worker's Compensation laws. Consultant shall procure professional errors and omissions liability insurance in an amount acceptable to City. All insurance required by this Section shall be kept in effect during the term of this Agreement and shall not be cancelled without thirty (30) days written notice to City of proposed cancellation. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Consultant's obligation to indemnify City, its officers, employees, contractors, subcontractors, or agents. 5.2 Indemnification. Consultant shall defend, indemnify and hold harmless the City, its officers, employees, representatives and agents ("Indemnified Parties"), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and attorneys' fees, for injury to or death of person(s), for damage to property (including property owned by City) and for errors and omissions committed by Consultant, its officers, employees and agents, which arise out of Consultant's negligent performance under this Agreement, except to the extent of such loss as may be caused by City's own negligence or that of its officers or employees. In the event the Indemnified Parties are made a party to any action, lawsuit, or other adversarial proceeding in any way involving such claims, Consultant shall provide a defense to the Indemnified Parties, or at the City's option, reimburse the Indemnified Parties their costs of defense, including reasonable attorney's fees, incurred in defense of such claim. In addition, Consultant shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified Parties. 5.3 Remedies. In addition to any other remedies City may have if Consultant fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement. b. Order Consultant to stop work under this Agreement and/or withhold any payment(s) which become due to Consultant hereunder until Consultant demonstrates compliance with the requirements hereof. C. Terminate this Agreement. 5.4 Construction Bonds. The successful Design/Build Consultant Team will be required to furnish a Labor and Materials Bond in the amount equal to one hundred percent (100%) of the Contract price for construction, as well as a Faithful Performance Bond, in the amount equal to one hundred percent 0 00%) of the Contract price for construction. Exercise of any of the above remedies, however, is an alternative to any other remedies City may have. The above remedies are not the exclusive remedies for Consultant's failure to maintain or secure appropriate policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Consultant may be held responsible for payments of damages to persons or property resulting from Consultant's or its subcontractors' performance of work under this Agreement. N:\PROJECTS\CLQ T Drive Project Files\PROJECfS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreemem.doc Page S of 9 58 4. .V RECORDS AND REPORTS. 6.1 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning Consultant's performance of the services required by this Agreement as the Contract Officer shall require. 6.2 Records. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable the Contract Officer to evaluate the cost and the performance of such services. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principals. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 6.3 Ownership of Documents. Originals of all drawings, specifications, reports, records, documents and other materials, whether in hard copy or electronic form, which are prepared by Consultant, its employees, subcontractors and agents in the performance of this Agreement, shall be the property of City and shall be delivered to City upon termination of this Agreement or upon the earlier request of the Contract Officer, and Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials hereunder. Consultant shall cause all subcontractors to assign to City any documents or materials prepared by them, and in the event Consultant fails to secure such assignment, Consultant shall indemnify City for all damages suffered thereby. In the event City or any person, firm or corporation authorized by City reuses said documents and materials without written verification or adaptation by Consultant for the specific purpose intended and causes to be made or makes any changes or alterations in said documents and materials, City hereby releases, discharges, and exonerates Consultant from liability resulting from said change. The provisions of this clause shall survive the completion of this Contract and shall thereafter remain in full force and effect. 6.4 Release of Documents. The drawings, specifications, reports, records, documents and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer or as required by law. Consultant shall not.disclose to any other entity or person any information regarding the activities of City, except as required by law or as authorized by City. 7.0 ENFORCEMENT OF AGREEMENT. 7.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 7.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the Contract Officer; provided that if the default is an immediate danger to the health, safety and general welfare, City may take such immediate action as City deems N:\PROJECTS\CLQ T Drive Project Files\PROJECTS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreenlent.doc Page 6 of 9 59 4.4.4 warranted. Compliance with the provisions of this section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to Section 7.8. 7.3 Retention of Funds. City may withhold from any monies payable to Consultant sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Consultant in the performance of the services required by this Agreement. 7.4 Waiver. No delay or omission in the exercise of any right or remedy of a non defaulting party on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval of any act by Consultant requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Consultant. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 7.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive 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 default or any other default by the other party. 7.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, at law or at equity, to cure, correct or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 7.7 Termination Prior to Expiration of Term. This section shall govern any termination of this Agreement, except as specifically provided in the following Section 7.8 for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written notice to Consultant. Upon receipt of any notice of termination, Consultant shall immediately cease all services hereunder except such as may be specifically approved by the Contract Officer. Consultant shall be entitled to compensation for all services rendered prior to receipt of the notice of termination and for any services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except as provided in Section 7.3. 7.8 Termination for Default of Consultant. If termination is due to the failure of Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 7.2, take over work and prosecute the same to completion by contract or otherwise, and Consultant shall be liable to the extent that the total cost for completion of the services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Consultant for the purpose of setoff or partial payment of the amounts owed City as previously stated in Section 7.3. 7.9 Attorneys' Fees. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs of suit from the losing party. N:\PROJECTS\CLQ T Drive Project Files\PROJECTS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreement.doc Page 7 of 9 60 ��� 8.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION. 8.1 Non -liability of City Officers and Employees. No officer or employee of City shall be personally liable to Consultant, or any successor in interest, in the event or any default or breach by City or for any amount which may become due to Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 8.2 Conflict of Interest. No officer or employee of City shall have any personal interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which affects his or her personal interest or the interest of any corporation, partnership or association in which she or he is, directly or indirectly, interested, in violation of any State statute or regulation. Consultant warrants that it has not paid or given and will not pay or give any third party any money or general consideration for obtaining this Agreement. 8.3 Covenant against Discrimination. Consultant covenants that, by and for itself, its heirs, executors, 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 performance of this Agreement. Consultant shall take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, national origin or ancestry. 9.0 MISCELLANEOUS PROVISIONS 9.1 Notice. Any notice, demand, request, consent, approval, communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this section. To City: To Consultant: CITY OF LA QUINTA Attention: City Manager Attention: 78-495 Calle Tampico P.O. Box 1504 La Quinta, California 92253 9.2 Integrated Agreement. This Agreement contains all of the agreements of the parties and all previous understanding, negotiations and agreements are integrated into and superseded by this Agreement. 9.3 Amendment. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing signed by both parties. 9.4 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder. N:\PROJECTS\CLQ T Drive Project Fiies\PROJECTS\2003 Prjcts\2003-12 Community Parr Skate Park\SkateParkAgre--- t.doc Page 8 of 9 61 4ti� 9.5 Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. CITY OF LA QUINTA a California municipal corporation Don Adolph, Mayor ATTEST: June Greek, City Clerk APPROVED AS TO FORM: M. Katherine Jenson, City Attorney CONSULTANT: By: Name: Title: Date: Date N:\PROJECTS\CL.Q T Drive Project Files\PROJECTS\2003 Prjcts\2003-12 Community Park Skate Park\SkateParkAgreement.doc Page 9 of 9 • 62 ��� Exhibit A Scope of Services The Scope of Services includes, but is not limited to, completing the design, plans, detailed specifications, and cost estimate for the La Quinta Skate Park, and supporting amenities. The work also includes construction management and inspection services throughout the duration of the contract. Coordinate meetings with City staff for the design and construction of the skate park. The attached plan indicating the proposed layout shall be used in consideration of the design. The consultant shall also complete any studies required to determine any underground obstructions that must be mitigated or removed. The Consultants Scope of Work, dated is attached and made a part herein. 63 ��� Exhibit B Schedule of Compensation Payment shall be in full at the rates listed in the Schedule of Billing Rates attached herewith for the actual work completed in conformance with Section 2.2 of the Agreement. Total compensation for all work under this contract shall not exceed Dollars ($ 1 except as specified in Section 1.6 - Additional Services of the Agreement. 64 007 4W4W Exhibit C Schedule of Performance Consultant shall complete all services within consecutive calendar days of the date of this Agreement. 65 4-18 Exhibit D Special Requirements 66 AW 4. 1 COUNCIL/RDA MEETING DATE: November 4, 2003 ITEM TITLE: Consideration of Artist Bridge Railings for Washington Street and Jefferson Street Bridges, North of Highway 1 1 1 and Eisenhower Bridge North of Calle Tampico RECOMMENDATION: As deemed appropriate by the City Council. FISCAL IMPLICATIONS: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: The Art in Public Places Account has an uncommitted balance of $462,361 as of October 31, 2003. The cost of the bridge railings has not been determined at this time, however, there are several Art in Public Places projects being proposed in the near future that, if all were approved, could deplete the Art in Public Places balance. Staff is seeking direction as to possibly earmarking Art in Public Places funds for artist bridge railings for the Washington Street and Jefferson Street bridges north of Highway 1 1 1 and the Eisenhower Street bridge north of Calle Tampico. It is estimated that the cost to provide artistic bridge railings for the three bridges would not exceed $ 250,000. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: On September 15, 1998, the City Council approved the concept for decorative bridge railings for the Washington Street Bridge Widening project (south of Avenue 50). The Cultural Arts Commission recommended commissioning Juan and Patricia Navarrette to design the bridge railings. The finished project is shown on Attachment 1. On February 20, 2001, the City Council approved the concept for decorative bridge railings for the Jefferson Street Bridge Widening project (south of Avenue 52). The Cultural Arts Commission again recommended the Navarrettes be commissioned to produce artistic bridge railing designs for City Council consideration. After the commissioning of the bridge railing designs, the City owns the rights to the designs produced by the Navarrettes. The finished project is shown on Attachment 2. At the August 7, 2001 City Council meeting, the City Council directed staff to research the possibility of adding decorative bridge railings to the Washington Street bridge north of Hwy. 1 1 1, as well as the Eisenhower Bridge north of Calle Tampico (Attachment 3). When the Washington and Jefferson Street bridge railing projects were discussed, there was also discussion as to whether all major bridges in the City should have decorative bridge railings. "Decorative bridge railings" is defined as the concrete barrier and the wrought iron rails. Jefferson Street north of Hwy. 1 1 1 is being reconfigured to a six -lane road. As part of this project, a six -lane bridge over the wash north of Fiesta Lane will be added. At the September 11, 2003 Cultural Arts Commission meeting, the Commission considered two options: modifying the existing designs of the Jefferson and Washington Street bridge railings to be in scale with the new Jefferson and Washington Street bridge railings; or commissioning new designs for the two bridges. The Commission is recommending the bridge railings on Washington and Jefferson Street bridges north of Hwy. 1 1 1 be consistent with the bridge railings on Jefferson and Washington Streets south of Hwy. 1 1 1. In addition, the Commission is recommending the Eisenhower Street bridge north of Calle Tampico include decorative bridge railings. Should the City Council direct staff to have artistic bridge railings included as part of the construction of the new bridges (Jefferson Street and Eisenhower Street) and add artistic bridge railings to the Washington Street bridge, staff will begin the preliminary design, define budget estimates to design and construct artistic bridge railings, and investigate alternative funding sources (i.e., including CVAG dollars) for the three bridges. The length of bridge railings needed for the Washington Street Bridge is 1,030 linear feet and Jefferson Street Bridge railings would require 1,000 linear feet. The linear feet of bridge railings needed for the Eisenhower Bridge is 200 feet. Based upon the cost per linear foot of artistic bridge railings, the estimated cost for the Washington Street bridge artistic railings would be $103,000, the Jefferson Street bridge would be $100,000, and the Eisenhower Street bridge would be $20,000. Accordingly, an estimated grand total of $223,000 is required for artistic bridge railings on the three bridges. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Direct staff to consult a bridge designer for an engineer's estimate to design and construct artistic bridge railings on Washington and Jefferson Street bridges north of Hwy. 1 1 1, and on Eisenhower Street bridge north of Calle Tampico, and appropriate up to $250,000 from the Art in Public Places Fund for this project; or 2. Do not direct staff to consult a bridge designer for an engineer's estimate to design and construct artistic bridge railings on Washington and/or Jefferson Street bridges north of Hwy. 1 1 1, and/or on Eisenhower Street bridge north of Calle Tampico, and do not appropriate up to $250,000 from the Art in Public Places Fund for this project; or 3. Provide staff with alternative direction. I lly s bmitted, V Dodie Horvitz, Co unity Services Director Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Washington Street Bridge Railings 2. Jefferson Street Bridge Railings 3. City Council Minutes of August 7, 2001 Meeting U 3 232 MKM 11 Ke COW - 'to VA ATTACHMENT 2 4w 3 5 V ATTACHMENT 3 City Council Minutes 3 August 7, 2001 i ► 11 e 11 [fill • APPROVAL OF MINUTES MOTION - It was moved by Council Members Sniff/Henderson to approve the City Council, Minutes of July 17, 2001, as submitted. Motion carried unanimously. CONSENT CALENQAR 1. APPROVAL OF DEMAND REGISTER DATED AUGUST 7, 2001. 2. ACCEPTANCE OF A. FISCAL YEAR 2001 LOCAL LAW ENFORCEMENT BLOCK GRANT (LLEBG) AWARD IN THE AMOUNT OF $26,704 FROM THE BUREAU OF JUSTICE ASSISTANCE. 3. AUTHORIZATION FOR OVERNIGHT TRAVEL FOR ONE COUNCIL MEMBER AND PERSONNEL/RISK MANAGER TO ATTEND THE CALIFORNIA JOINT POWERS INSURANCE AUTHORITY ANNUAL RISK MANAGEMENT CONFERENCE TO BE HELD OCTOBER 10-12, 2001, .IN SAN FRANCISC0, CALIFORNIA, 4. ACCEPTANCE OF STREET RIGHT-OF-WAY DEDICATION NORTHWEST CORNER OF DUNE PALMS ROAD AND WESTWARD HO DRIVE. .5. ADOPTION OF A RESOLUTION GRANTING CONDITIONAL .APPROVAL OF AN AMENDED FINAL MAP AND SUBDIVISION IMPROVEMENT AGREEMENT FOR TRACT 29348-2, TOLL BROTHERS,. INC., TOLL CA II L.P. (RESOLUTION NO. 2001-99) 6. APP i 0:1/ ►I ( MfS I Nr. f I1E1 : N R RID-�CE OVER THE LA CIUINTA EVAUi►TICIILA 1DI'flAT PROJECT FOR FISCAL YEAR 2002 S.T.I.P. DISCRETIONARY FUNDS. 7. AUTHORIZATION FOR OVERNIGHT TRAVEL FOR THE PLANNING MANAGER AND PRINCIPAL PLANNER TO ATTEND THE APA 2001 ANNUAL CONFERENCE TO BE HELD OCTOBER 20-22, 2001, IN SACRAMENTO, CALIFORNIA. 2 ,, 7 City Council Minutes 4 August 7, 2001 g, APPROVAL OF MEMORANDUM OF UNDERSTANDING WITH THE CAMPESINOS UNIDOS, INC. FOR THE RESIDENTIAL ENERGY ASSISTANCE RATE PROGRAM. MOTION - It was moved by Council Members Sniff/Adolph to approve the Consent Calendar as recommended with Item No. 5 being approved by RESOLUTION NO. 2001-99. Council Member Henderson spoke regarding Item No. f and suggested decorative raiing Ybe considered forthl ridge dn=Eivsbnb6.W.er Drive, as we r as the existing bridge on Washington Street north of Highway 1 1 1. Council concurred to direct staff to look into the possibility. Motion carried unanimously. MINUTE ORDER NO. 2001.110. 6US.INESS .SESSION 1, CONSIDERATION. OF COMMUNITY SERVICE GRANT REQUESTS. Community Services Director Horvitz presented the staff report. County Sheriff's Department Pistol Team: Council Member . Adolph voiced support for the organization but expressed concern about approving grant requests for organizations not based in La Quinta given the recent reduction .in the 'Special .Projects Contingency Fund. After a brief discussion,. Council concurred to approve a grant in. the. amount of $1, 500. Barbara Sinatra C,_ hildren's Center: Council Member. Adolph. stated he would support an amount of only $1,000 since the organization is not based in La Quinta. Council Member Sniff supported the requested amount of $2,000. Council Member Henderson commented on the large size of the organization and stated she felt the intent of the. Community Services Grant Program is to ��8 COUNCIL/RDA MEETING DATE: November 4, 2003 ITEM TITLE: Consideration of a Clock Tower on the Civic Center Campus RECOMMENDATION: As deemed appropriate by the City Council. FISCAL IMPLICATIONS: AGENDA CATEGORY: BUSINESS SESSION: C?. CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Dependent upon prior City Council action, the Art in Public Places Account has an uncommitted balance of $462,361 as of October 31, 2003. The proposed cost for the clock tower art piece is $70,000. However, this does not include engineering or installation, or the amenities that the Cultural Arts Commission is recommending. The total estimated cost for the clock tower could exceed $125,000. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: At the February 13, 2003 Cultural Arts Commission meeting, Mr. Rob Atkins presented a concept for a clock tower to be placed on the Civic Center Campus. After some discussion, Commissioner Young volunteered to head this project, but asked that it be continued to the fall of 2003. At the October 9, 2003 Cultural Arts Commission meeting, Commissioner Young presented information from her research on the Civic Center clock tower project. She reported the minimum price for this project would be $70,000, with a six-month delivery time. The $70,000 cost does not include the required engineering or installation of the clock. The clock tower would be 25' to 30' in height, and would support artist wind chimes or sculptures. These amenities were not included in the $70,000 estimate. Attachment 1 provides information on the clock tower proposal. The Cultural Arts Commission recommends the City Council consider commissioning a clock tower to be included on the Civic Center Campus. When Mr. Atkins originally suggested a clock tower for the Civic Center Campus, he recommended the clock tower be placed near the Senior Center. Attachment 2 provides a map of the Civic Center and the art pieces that are currently located on the site. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Authorize the concept of a clock tower for the Civic Center Campus and direct staff to finalize a Professional Services Agreement; or 2. Do not authorize the concept of a clock tower for the Civic Center Campus and/or do not direct staff to finalize a Professional Services Agreement; or 3. Provide staff with alternative direction. j ctfully s t mitted, VA Dodie Horvitz, ComNunity Services Director Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Memorandum From Linda Young, Cultural Arts Commissioner 2. Map of the Civic Center Campus ,2 2 �10 r n CD y � � � o Gd 0 N (D �r d CD CD o a vq CD CD O CD lV a O CD y 3 i t t f i F M rd JIL 1- �. ATTACHMENT 2 memo from: Ida In? To: (64 ht (ate Rt God Tower Thursk Odok 09, 2003 To date the following is the information I have obtained: 1. Clock Tower Fabrication remains an Estimate of a minimum of $70,000.00 2. Can be Delivered and Installed within 6 months of order 3. Will be twenty-five to thirty feet in height 4. Will be able to support four artist wind chimes or hanging metal sculptures To summarize I have met with the metal fabricators for this type of structure. This is a cos#yy project for La Quinta however it's Artistic Nature and Magnificent Skeleton offer a structure to Display Metal Chime Sculpture for Centuries to come. The monumental size of the structure and it's Design unique to any other make this a worthy addition to the City's Art Collection. Please give this careful consideration as to what it will mean to the future of La Quinta&ce it will tower abo - the city as a beacon of the culture that is an everyday part of our lives. *See Attachments for a similar structure (ours will be one of a kind) drawing is depicting one side, with a metal sculpture chime addition. The Clock Tower proposed is four sided `42 sm SFAM FAM r Der sn ANNOD x UDMR- is z =•*s W LU S Imcm ArAw pw.) TA.L *A. STL TUBES, rt& %uC.. . TrP. cn LPA3.S .o t �U't'NiLS1ER o KXKKMXa CLACK" 749'rh'k FMCLASS Ass W/ ALUL s i ;\ z i ._......_ s•', rR ..^ : ' a T.O. x amm 11cwPVRCM1 MO ACCESS PAMM CWW W.Mt OF CLK. RnagM PANGM Uln t EXI mw PAMM t0 mm:" titR. y, 'MowawC CUP" Lg'x3x2 SR. 3U (4 PLC-5 Al CU( at 8 PL&S A7 PION) AV" A'x4* 30 SM RDLLTD) MID SUM SECT ANAL AA Al _..... `> s o i tLJIL iJ i �• NT i • \ .<........ � F . ,_ W, ° s PLAN VIEW liens p I a x u x1v _ 7 4" `gA6E PUQE' �• 1'xi'-6'x t!' STL PL. (4 M*D) 4) L-w MMM PFCADED R 1' DUl APB +� L ^� ar am cowm LOUMN FOR CLDOKS "M Mmv00 a PLAN VIEW ! as ar-t r O - Is)':*x4 �5 .3 � e e oil �-��lip - ® A �tp � r-r i, +t O— ®�+ 6 .p 'bap \{I�"ii;lil tilt r p NWR a IV .a IZP � 246 IML COUNCIL/RDA MEETING DATE: November 4, 2003 ITEM TITLE: Consideration of a Public Safety Officer Sculpture for the Civic Center Campus RECOMMENDATION: As deemed appropriate by the City Council. FISCAL IMPLICATIONS: AGENDA CATEGORY: BUSINESS SESSION: y� CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Dependent upon prior City Council action, the Art in Public Places Account has an uncommitted balance of $462,361 as of October 31, 2003. The estimated cost for the Public Safety Officer sculpture as presented is $65,750. Any changes to the art piece could result in an increase in the cost. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: At the June 3, 2003 City Council meeting, the City Council asked that the Cultural Arts Commission work on a memorial to be located on the Civic Center Campus in honor of fallen officers (Attachment 1) . The Cultural Arts Commission considered this item at their July 10, 2003 meeting and recommended the following: Artist Bill Ware submit a concept for an Acknowledgement Area for Fallen Officers, to be consistent with the design of the Acknowledgment Areas for Veterans, Sports Figures and Artists, at the Civic Center Campus. The City Council directed a sculpture for public service officers be commissioned for the Civic Center Campus. The art piece was to be lifelike and not an abstract piece. `' 4 6 A Request for Proposals was sent out to approximately 250 artists throughout the nation. One artist, Gary Alsum, responded to the Request for Proposal (Attachment 2). Mr. Gary Alsum is proposing a firefighter holding a small girl in his arms. The air tank on the firefighter's back could have the initials "LQFD" or "CDF" on it, signifying the La Quinta Fire Department or the California Department of Forestry, respectively, or the tank could be left blank. At the Cultural Arts Commission meeting on November 13, 2003, the Commission stated that they did not feel that reviewing one proposal was appropriate and recommends that the City Council direct staff to reissue a Request for Proposals for this project. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Approve the Public Safety Officer sculpture proposal by Gary Alsum and direct staff to prepare a Professional Services Agreement for consideration; or 2. Direct staff to reissue the Request for Proposal for the Public Safety Officer sculpture; or 3. Provide staff with alternative direction. Respectfully sulmitted, • A Door Horvitz, Commanity Services Director Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Minutes from the June 3, 2003 City Council Meeting 2. Public Safety Officer Sculpture Proposal 2 ATTACHMENT 1 City Council Minutes 10 June 3, 2003 SunUne Transit Agency — Mayor Adolph referenced an issue about a street sweeper purchase that was reported in the newspaper. He stated it seems obvious the Board was not aware of what had transpired, and will be making sure it doesn't happen again. Coachella Valley Economic Partnership — In response to Council Member Henderson, Mayor Adolph confirmed new Executive Director Pat Melvin is on board. All other reports were noted and filed. PUBLIC COMMENT Audrey Ostrowsky asked for special permission to address the Council at this time on an issue related to street sweeping. She suggested the street sweeping schedule be posted on signs so residents know when to remove their vehicles from the curb for proper street cleaning. Council Member Perkins noted some cities post one side of the street for no parking between 8:00 a.m. and Noon on a certain day of the week and post the other side for a different day. Council Member Sniff asked if the streets are cleaned weekly, to which City Manager Genovese responded, "Yes." DEPARTMENT REPORTS Council Member Henderson referenced the requests to rename The La auinta Park after Deputy Bruce Lee, and commented on the need to send a response. She noted the City has directed the Cultural Arts Commission to work on a memorial for the Civic Center, and that could be included in the letter. After a brief discussion, City Manager Genovese stated staff will send a response to the residents informing them of what the City is doing, and how to contact the Community Services Department regarding the park -naming process. City Clerk Greek asked what date the Council prefers to hold the Volunteer Firemen's Dinner. °4s k Proposal by Gary Alsurn and the National Sculptors' Guild We propose the placement of the bronze limited edition sculpture, Reunion, by Gary Alsum for the City of LaQuinta' Public Officers Sculpture. The sculpture depicts a fireman holding a little girl and dog after she has been reunited with her pet. The first in an edi- tion of 7 of this sculpture was placed at a City of Thornton, Colorado fire station this spring. The sculpture is 87" high, 47" wide and 36" deep. The patina (coloration) will be as shown in the following photos. The artist and the National Sculptors' Guild, which Gary Alsum is a member, will fabricate, ship and install the sculpture. Our project approach will be to create a design team consisting of Gary Alsum, sculptor, John Kinkade, director of the National Sculptors' Guild and a representative of the City. This design team will make all necessary decisions or recommendations concerning, site design and construction. The National Sculptors' Guild shall act as the general contractor for the installation. It is initially recommended that the sculpture be placed on a plinth approximately 24" tall and 5' wide and 4' deep. The design of this pedestal will be determined by the surrounding environment. The plinth shall have adequate surfaces for appropriate plaques and shall be structurally designed. The sculpture will be installed with the use of either a fork lift or a crane, depend- ing upon the site. It will be permanently attached to the plinth per the instructions of the recommendations of our structural engineer. The National Sculptors' Guild will be respon- sible for obtaining a sealed foundation plan and the necessary permits. Lighting shall be designed based upon the requirements of the site. The project schedule shall be based upon the four month time frame to fabricate the sculpture. Site preparation shall be completed during this time, including electrical and foundation work. There should be no problem meeting the May 2004 completion. Please see the attached resume for similar projects. We are happy to submit addi- tional information on any of the completed public placements. Thank you for your consideration. Please let us know if you have any questions. Gary Alsum Sculptor John Kinkade National Sculptors' Guild REUNION by GARY ALSUM: 87"H x 47"W x 36"D A choice is a decision that we have the option to make, but a hero's choice is a decision that's made for another's sake. A Hero's Choice C by Linda Ellis Courage is the first of human qualities because it is the quality which guaran- tees all others. --Winston Churchill M- r 8 �. ��3 � , u V• 1 it \A J V 1 I V \r v %o l %A 1 l v V Fire Department Initials 10 Reunion Study with Boy by GARY ALSUM: 115% life size Reunion Study with Boy by GARY ALSUM: 115% life size A. , �2 Other Work by GARY ALSUM Jack and Company by GARY ALSUM: 15'H 4 ~s 1.3 Harmony by GARY ALSUM: 120% life size 09- Giant Steps by GARY ALSUM: 88" H x 26"W x 40"D 15 by GARY ALSUM: 115% Life Size 261 Pls Picture Books by GARY ALSUM: 35" H x 52"W x 22"D Frog Legs by GARY ALSUM: Life Size 26 Budget Reunion by Gary Alsum $50,000.00 Packing, Shipping and Insurance 3,000.00 Structural Engineer 850.00 Plinth Design, Footing and Construction 4,500.00 Lighting and Electrical Service 2,500.00 Travel 2,000.00 Installation. 1,200.00 Bronze Plaques 1,600.00 Total $65,750.00 f)6 �' 20 Gary Alsum References • Urban Trail League, Asheville, NC, Promenade, Blue Grass, and Toy Hojun Welker, Director 828/259-5855 • City of Oxnard, CA, Giant Steps, Frog Legs and And ... They're Off! Andrew Voth, Director of Museums 805-385-8148 • City of Palm Desert, CA Proceed With Caution John Nagus, Community Arts Manager 760-346-0611 • HKS, Inc., Dallas, TX Two 125% Life-size, one -of -a -kind Commissions. Javier de la Garza, Interior Architect, 214-969-5599 Mr. de la Garza coordinated the artwork for the American Stores project, Salt Lake City, UT, with the National Sculptors' Guild, Loveland, CO. 1,21 GARY ALSUM BORN: October 30,1957 Denver, CO EDUCATION: 1984 Life Drawing, University of Northern Colorado Greeley, CO 1975-79 B.A. Dordt College Sioux Center, IA 1975 Graduated, Denver Christian High School Denver, CO COMMISSIONS AND PUBLIC ART PLACEMENTS: 2002 Firefighter Memorial, City of Thornton Thornton, CO "Jack & Co." 16'h Fountain, Na'aina Kai Botanical Gardens Kilauea, Haua'i, HI 2001 "Steps to Success", Southeast Tennis & Learning Center Washington, DC "Jazz", City of Iowa City Iowa City, IA 2000 "Joy", City Of Honolulu Honolulu, HI "Giant Steps", "Frog Legs", Na'aina Kai Botanical Gardens Kilauea, Haua'i, HI "New Adventures", Upper Iowa University Fayette, IA "New Adventures", University of Colorado Nursing School Colorado Springs, CO "New Adventures", Traut Elementary School Fort Collins, CO 1999 "Appalachian Dance" -Five Figures, City Of Asheville Asheville, NC "And... They're Off!", Home State Bank Loveland, CO Multiple Purchases, City Of Oxnard Oxnard, CA 1998 "Harmony", American Stores, Inc. Salt Lake City, UT "Proceed With Caution", City of Palm Desert Palm Desert, CA 1997 "Picture Books", "Frog Legs", City Of Glendale Glendale, AZ 1996 "'Grandpa's Workbench", Deines Lumber Loveland, CO 1995 "And... They're Off!", "Giant Steps", Greenfield Village Denver, CO "Grandpa's Workbench", Public Display Committee Holland, MI CORPORATE COLLECTIONS: American Stores, Inc Salt Lake City, UT Diamond Vogel Paints Orange City, IA Donahue Foundation Denver, CO Dordt College Sioux Center, IA Edgewood Ranch Endowment Orlando, FL Freedom Group Bradenton, FL Phillips Petroleum Bartlesville, OK PROFESSIONAL MEMBERSHIPS: National Sculptors' Guild Since 1992 "NEW ADvENTURES" • THE NATIONAL SCULPTORS' GUILD • GARY ALSUM • • 2683 N TAFT AVENUE • LOVELAND, COLORADO 80538 • 970.667.2015 • • WWW.COLUMBINENSG.COM 0 FAx970.667.2068 • NSG 11iFRII.COM - �� ay �fj 1 ^�2 SELECTED EXHIBMONS: 2002 Two -Person Show, Columbine Galleries Loveland, CO 1998-01 Sculpture in the Park, National Juried Exhibition Loveland, CO 1992-01 Colorado Governor's Invitational Loveland, CO 1998,00 Allied Artists of America Annual Exhibitions New York, NY 1995 Solo -Show, Columbine Galleries Loveland, CO 1994 The Shining Mountains, Foothills Art Center Golden, CO Allied Artists of America Annual Exhibitions New York, NY Solo -Show, Home State Bank Loveland, CO El Paseo Exhibition Palm Desert, CA Danada Sculpture Show Chicago, IL 1993 Art in the Park, Warren Place Tulsa, OK "The Art of Celebrating", Invitational Show Fort Collins, CO Danada Sculpture Show Chicago, IL 1992 Strokes of Genius, Scottsdale Artists' School Scottsdale, AZ Allied Artists of America Annual Exhibitions New York, NY North American Sculpture Exhibition Golden, CO 1991 Best and Brightest, Scottsdale Artists' School Scottsdale, AZ 1988-91 Sweetheart City Sculpture Show Loveland, CO 1990 Allied Artists of America Annual Exhibitions New York, NY 1989 Colorado Art Open Golden, CO North American Sculpture Exhibition Golden, CO Best and Brightest, Scottsdale Artists' School Scottsdale, AZ 1988-89 Poudre Valley Art League Regional Exhibit Fort Collins, CO 1988 Art Burst 1988 Orange City, IA Two -Person Show, Columbine Gallery Loveland, CO "HaxMornr" • THE NATIONAL SCULPTORS' GUILD • GARY ALSUM • • 2683 N TAFT AVENUE • LOVELAND, COLORADO 80538 • 970.667.2015 • 9 WW'W.COLUMBINENSG.COM • FAx970.667.2068 • NSG@FRII.COM - 23 COUNCIL/RDA MEETING DATE: AGENDA CATEGORY: BUSINESS SESSION: December 2, 2003 CONSENT CALENDAR: STUDY SESSION: Consideration of an Ordinance Amending Section 6.08.050 of the La Quinta Charter and Municipal Code PUBLIC HEARING: Relative to Disturbances by Construction Noises RECOMMENDATION: A). Motion to take up Ordinance No. further reading. B). Motion to introduce Ordinance No. FISCAL IMPLICATIONS: None. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: by title and number only and waive on first reading. At the November 18, 2003 City Council meeting, staff was directed to bring the issue of construction hours back for review and possible amendment. Section 6.08.050 of the La Quinta Charter and Municipal Code lists the permitted hours for construction activities (Attachment 1). Staff recommends amendment of several portions of the section for clarification purposes. Attachment 2 is a red -lined version of the recommended changes. Attachment 3 is correspondence submitted by Mr. Wells Marvin requesting review of construction hours. The first recommended amendment is to specifically list the Government Code Holidays referred to in the section. This will remove any confusion as to what holidays are covered by the Ordinance. The following are Government Code Holidays by definition, because they have been adopted by the State as well as the City: New Year's Day (January 1) Dr. Martin Luther King Jr. Day (third Monday in January) President's Day (third Monday in February formerly Washington's birthday) Memorial Day (last Monday in May) 269 Independence Day (July 4) Labor Day (first Monday in September) Veteran's Day (November 1 1) Thanksgiving (fourth Thursday in November) Christmas Day (December 25) [It may be noted that the City recognizes additional holidays not on the State list (i.e., the day after Thanksgiving). Staff does not enforce constructs n hours on these days.] At the direction of the City Council, any of these holidays may be excluded for the purposes of the proposed Ordinance. Staff also recommends the deletion of wording that restricts work during certain hours, only if it creates noise that "disturbs the peace and quiet of any person of normal sensitivity." This criterion is subjective and causes enforcement controversy. The proposed language would prohibit all construction activities outside of listed hours and would not be dependent on the level of noise being created. Staff is not recommending that restrictions vary depending on the zone in which the construction is taking place. While most would agree that the residential zones should be protected, some may feel that commercial zones should be exempt from restrictions because construction noise wouldn't disturb anyone. A contradiction to that assertion, however, could be made by outside diners in the Village and elsewhere who could find construction noise disturbing during their dining experience. Additionally, residential properties may be approved and developed within or abutting commercial zones. Currently, all approved plans issued to builders are stamped with the permitted construction hours. Pending the City Council's action on this item, an additional stamp listing the Government Code Holidays will be added to the approved plans. Finally, with respect to other requests and assertions contained within Mr. Marvin's letter, staff has denied the request for extended hours and would not recommend that enforcement personnel be required to locate specific property owners prior to enforcing on -site code violations. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. A). Motion to take up Ordinance No. by title and number only and waive further reading. B). Motion to introduce Ordinance No. on first reading; or 2. Do not motion to take up Ordinance No. by title and number only and waive further reading and do not motion to introduce Ordinance No. on first reading; or 3. Provide staff with alternative direction. Respectfully submitted, Tom Hartung, Direct6r of Building and Safety Approved for submission by: 0 Mark Weiss, Acting City Manager Attachments: 1. LQMC Section 6.08.050 2. Redline version of Section 6.08.050 3. Correspondence from Mr. Wells Marvin 271 ORDINANCE NO. AN ORDINANCE OF THE CITY OF LA QUINTA, CALIFORNIA, REPEALING AND REPLACING SECTION 6.08.050 *OF THE LA QUINTA CHARTER AND MUNICIPAL CODE RELATING TO DISTURBANCES BY CONSTRUCTION NOISES THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. That Section 6.08.050 of the La Quinta Charter and Municipal Code is hereby repealed and replaced as follows: 6.08.50 Disturbances by construction noises A. It is a nuisance and it is unlawful, for any person to be engaged or employed, or for any person to cause any other person to be engaged or employed, in any work of construction, erection, alteration, repair, addition to, or improvement to realty, except between the hours set forth as follows: October V Monday - Friday: seven a.m. to Through five -thirty p.m. April 30" Saturday: eight a.m. to five p.m. Sunday: none Government Code Holidays*: none May 1" Through Monday -Friday: six a.m. to seven September 30th P. M. Saturday: eight a.m. to five p.m. Sunday: none Government Code Holidays*: none * For purposes of this section, the following shall* be considered Government Code Holidays: New Year's Day (January 1) Dr. Martin Luther King Jr. Day (third Monday in January) President's Day (third Monday in February formerly Washington's ��ti birthday) Memorial Day (last Monday in May) Independence Day (July 4) Labor Day (first Monday in September) Veteran's Day (November 11) Thanksgiving (fourth Thursday in November) Christmas Day (December 25) B. No person doing or causing work prohibited by subsection A of this section, after being informed orally or in writing that the work is in violation of Section A, shall fail, refuse or neglect to cease said work. Exceptions: 1. Emergency repair of existing installations or equipment or appliances; 2. Construction work complying with the terms of a written early work permit which may be issued by the city manager or his designee, upon showing of sufficient need due to hot or inclement weather, or the use of an unusually long process material, or other circumstances of unusual and compelling nature. SECTION 2. EFFECTIVE DATE: This Ordinance shall be in full force and effect thirty (30) days after its adoption. PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City Council held on this day of 2003, by the following vote: AYES: Council Members NOES: None ABSENT: None ABSTAIN: None DON ADOLPH, Mayor City of La Quinta, California ATTEST: JUNE S. GREEK, CMC, City Clerk City of La Quinta, California (City Seal) �73 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss. CITY OF LA QUINTA ) I, JUNE S. GREEK, City Clerk of the City of La Quinta, California, do hereby certify the foregoing to be a full, true, and correct copy of Ordinance No. which was introduced at a regular meeting on the day of and was adopted at a regular meeting held on the day of not being less than 5 days after the date of introduction thereof. I further certify that the foregoing Ordinance was posted in three places within the City of La Quinta as specified in a Resolution of the City Council. JUNE S. GREEK, CMC, City Clerk City of La Quinta, California DECLARATION OF POSTING I, JUNE S. GREEK, City Clerk of the City of La Quinta, California, do hereby certify that the foregoing ordinance was posted on , pursuant to Council Resolution. JUNE S. GREEK, City Clerk City of La Quinta, California ATTACHMENT 1 6.08.050 Disturbances. by ,cQustrruc-ti.en .noises. A. It is a nuisance and it is unlawful, for any person to be .engaged or employed, or for any pe cause any other person to be engaged or .employed, in any work of construction, erection, alteration, addition to, or improvement to realty, except between the hours set forth as follows, if the noise or other produced by the work is of such intensity or quality that it disturbs the peace and quiet of any other of normal sensitivity. The permitted hours for such work are as follows: October 1st through April 30th Monday —Friday: Saturday: Sunday: Government Code holidays: 15'7 seven a.m. to five -thirty p.m. eight a.m. to five p.m. none none May 1st through Monday Friday: six a.m. to seven p.m. September 30th Saturday: eight a.m. to five p.m. Sunday: none G:avernment; CPdc holy.''' none (La Quints 9-96) B. No person doing or causing work prohibited by subsection A of this section, after being informed orally or in writing that the work has caused noise or sounds which disturb any other person's peace and quiet, shall fail, refuse or neglect to take whatever steps or use whatever means are necessary to assure that the work does not again disturb 'the- other person's peace and quiet. Exceptions: 1. Emergency repair of existing installations or equipment or appliances; 2. Construction work complying . l :in with the terms of a written early work permit which .may be issued by the city manager or his designee, upon a showing of sufficient need due to hot or inclement weather, or the use of an unusually long process material, or other circumstances of unusual and compelling nature. (Ord. 18 § 11 1982) Wep 4P.lJ Redline Version of Existing Ordinance Attachment 2 6.08.51 Disturbances by construction noises A. It is a nuisance and it is unlawful, for any person to be engaged or employed, or for any person to cause any other person to be engaged or employed, in any work of construction, erection, alteration, repair, addition to, or improvement to realty, except between the hours set forth as follows_; +#"#e OF etheF sound pFedueed by the WOFk is of sueh intensity eF quality that The pe ffnitted he ern fOF s ph WOFk Mre as follows; October 1 Monday - Friday: seven a.m. to Through five -thirty p.m. April 30th Saturday: eight a.m. to five p.m. . Sunday: none Government Code Holidays*: none May 1' Through Monday -Friday: six a.m. to seven September 30" p. M. Saturday: eight a.m. to five p.m. Sunday: none Government Code Holidays*: none • For purposes of this section, the following shall be considered Government Code Holidays: New Year's Day (January 1) Dr. Martin Luther King Jr. Day (third Monday in January) President's Dav (third Monday in February formerly Washington's birthday) Memorial Day (last Monday in May) Independence Day (July 4) Labor Day (first Monday in September) Veteran's Day (November 11) Thanksgiving (fourth Thursday in November Christmas Day (December 25) B. No person doing or causing work prohibited by subsection A of this section, after being informed orally or in writing that the work has ed noise eF quiet, is in violation of Section A, shall fail, refuse or neglect to take to cease said work. Exceptions: 1. Emergency repair of existing installations or equipment or appliances; 2. Construction work complying with the terms of a written early work permit which may be issued by the city manager or his designee, upon showing of sufficient need due to hot or inclement weather, or the use of an unusually long process material, or other circumstances of unusual and compelling nature. 0%"17 4.1 , Hil �. oLa Tovc�n LA QvintA November 11, 2003 Acting City Manager of La Quinta Members of the City Council 78-495 Calle Tampico La Quinta, CA 92253 RE: Old Town La Quinta Shut Down by Dog Catcher Request for relief Dear Mark and Members of the City Council: ATTACHMENT 3 I have had enough of city interference with the development of Old Town. At every step of the way the city has delayed, complicated and hindered our construction. But today was the final straw when at about 9:45 a.m: your dog catcher showed up on site and passed out large pink sheets "Construction Hours". She told all the workers on the site (about 100 at the time) that they would be finned $50 each if they did not immediately leave the site. They promptly began to "roll up" and leave. This is an outrage. If she thought it was a holiday she should have contacted me or my superintendent who were only half a block away in our office above the Library. This action has caused delay and has cost me money. The poster she gave out says "Government Code Holidays None". What does that mean? Did she shut down Walmart? Target? or are we the only one who got shut down? I immediately flew into action and called the Mayor at home and he called the director of Code Enforcement, who agreed with the Mayor that this holiday was not a "Code Holiday". Do you give notice of Code Holidays? Is there a list of them given out with each permit? What is a Code Holiday? Do you know what a "Code Holiday" is? Did you stop your golf course consultants from working? I saw city contracted landscapers working on the median on Avenue 52. Is there a double standard here? The Mayor seems to be the only person in the City bureaucracy who is practical about what the City should be doing. There is a tremendous arrogance in the way the staff interacts with developers. Public works inspectors walk on the site regularly and dispense advice when no inspections have been called for. A top to bottom review of your procedures is needed to avoid more costly delays caused by city staff. I have never seen a City which has tried so hard to hinder the development of a project they claim to support. I cannot be silent any longer on this issue. ti 8 GstJo; S die 201 . L., Quin+a, G,A o-n3 ♦ (760) 777-1770 Fax (760) .J�✓S/ 771-�/1 �7 ♦ t'.—IttCU I \� : L'.LIti111� �. � � c?\� Il �l�t:till�i..t.i �?tlt ♦ C� � }C��V1l clC�LtlFlt<a.i.c)Ilt Page 2 City of La Quinta 11-11-03 Old Town is already two months generating more tax Dollars .for you to s Overdue in opening to the public a courses. I need immediate relief from th end building monuments andgolfnd Town is not near any residences an a construction hour restrictions. Therefore, I request that you allow d does not interfere with an on $s q Old a.m. until 10:00 work to be Performed at Old Tow s quiet. P•m. everyday of the week until Januaryn from 6:00 signed by the appropriate cityoffic' opening and success o Official authorizing these 20' 2004' A letter f La Quinta's new Main Street. our is imperative to the Very truly yours, Wells L. Marvin Old Town La Quinta Misc Letters, Construction Hours 11-11-03 00, M1M1 Y G� OF 'q COUNCIL/RDA MEETING DATE: December 2, 2003 ITEM TITLE: Consideration of a Resolution Relating to the Proposed Tax Sharing Contracts Offered by the City of Indio for the Relocation of Champion Cadillac and Champion Chevrolet RECOMMENDATION: As deemed appropriate by the City Council. FISCAL IMPLICATIONS: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Based upon the sales tax projections the City of Indio employed to formulate their assistance package to the Champion dealerships, the tax sharing contract could provide an estimated $3.5 million of sales tax revenue to the City of La Quinta over a ten-year period. CHARTER CITY IMPLICATIONS: None. BACKGROUND AND OVERVIEW: On November 13, 2003, the Indio City Council held a special meeting at which time it took actions to set public hearings on December 30, 2003, for consideration of two financial assistance agreements it proposes to enter into with Champion Chevrolet and Champion Cadillac, to induce those dealerships to move from Highway 1 1 1 in La Quinta to the 1-10 Auto Mall in Indio. In setting the hearing for December 30, 2003, Indio is attempting to approve their financial assistance agreement before a change in the law that takes effect on January 1, 2004, which would prohibit such a contract. 30 The Champion dealerships currently operate at 78611 Highway 1 1 1. According to the Tax Assessor's information, the site is owned by Desert Automotive, LLC. According to the draft Financial Assistance Agreements that have been provided to City staff, Indio is proposing to enter into agreements with Desert Automotives, LLC, to facilitate the move of the Champion dealerships to the 1-10 Auto Mall. An entity by the name of HRA Investments is purported to have acquired a 5.75 acre site at the 1-10 Auto Mall for this purpose. Under each of the financial assistance agreements as drafted, each dealership will be entitled to receive a total of $900,492.00 in sales tax rebates as reimbursements for making certain improvements. The agreements anticipate that the rebates will be paid over a number of years. The formula percentages are listed as 75% in year one, 50% in year two, 30% in year three, 21.5 % in year 4, and 16.5 % in year five and after. However, these percentages can increase or decrease by up to 10% based upon how the actual sales taxes compare to the projected sales taxes set forth in the schedule of estimated sales tax revenue. Thus, it is conceivable that as much as 85 % of the sales tax could be paid to the dealerships in the first year. According to Indio staff, at the special meeting held on November 13, 2003, the Indio City Council approved the form of two separate tax sharing contracts to be offered to the City of La Quinta. The City of Indio has stated that it is offering these contracts in accordance with Government Code Section 53084. On November 14, 2003, the City of Indio delivered to the City of La Quinta the package which is provided as Attachment 1. Pursuant to Government Code Section 53084, the City of La Quinta has only 30 days from November 14, 2003, to act upon the proposed tax sharing contracts. The only regular City Council meeting scheduled for this time period is the December 2, 2003 City Council meeting. It is therefore necessary for the City Council to consider and act upon the proposed contracts at this time, unless the Council wishes to schedule a special meeting to consider these matters. In broad terms, the proposed contracts would require Indio to share, on a 50-50 basis, (after certain administrative costs are deducted) the sales tax remaining after the rebates to the dealerships are paid. The cap on what the City of La Quinta may receive would be the amount of sales tax it received for the last full fiscal year that the dealerships operated in La Quinta. 02 Thus, for example, if Champion Chevrolet produced $476,694 in sales in its first fiscal year of operation, $357,520 would be paid to the dealership and $1 19,174 would be split between Indio and La Quinta. Under this scenario, the City would be entitled to $59,587. The site's reuse potential includes a replacement dealership, retail, and/or restaurant uses. The parcel's size, however, limits the type of dealership that the site may accommodate. High volume car and truck dealerships, such as a Chevrolet, Ford or Toyota franchises, require a 5- to 6-acre site. This site is approximately 3.9 acres in size, which limits its reuse to a lower volume dealer franchise, which typically generates approximately $150,000 to $200,000 in annual sales tax income. Existing zoning would permit approximately 60,000 square feet of retail or restaurant uses; potential annual sales tax revenue from these uses would range from $150,000 to $250,000 per year. Staff has reviewed the proposed tax sharing contract, and believes that certain clarifications may be warranted to ensure that the contracts meet the requirements of Government Code Section 53084. As of the writing of this report, the City Attorney has been in contact with legal counsel for Indio but has not yet been able to finalize any such clarifications. Pursuant to Government Code section 53084(c)(2), the La Quinta City Council may approve the contracts by enacting a resolution, approved by a two-thirds vote of the La Quinta City Council. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City of La Quinta approving the proposed tax sharing contracts with the City of Indio for the relocation of the Champion Cadillac and the Championship Chevrolet dealerships, subject to the changes and clarifications, if any, deemed appropriate by the Acting City Manager and City Attorney, and agreed upon by the City of Indio, and authorize the Acting City Manager to execute the contracts on behalf of the City; or 2. Schedule a Special Meeting on or before December 121 2003, for the purpose of taking action on this item at a later date but within the 30-day period provided for by Government Code Section 53084; or 3. Do not approve the proposed tax sharing contracts with the City of Indio for the relocation of the Champion Cadillac and the Championship Chevrolet dealerships; or 2 03 282 4. Provide staff with alternative direction. Respectfully submitted, D. Merman munity Development Director Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Package delivered by Indio on November 14, 2003 3 04 283 RESOLUTION NO. 2003- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, APPROVING THE PROPOSED TAX SHARING CONTRACTS OFFERED BY THE CITY OF INDIO FOR THE RELOCATION OF CHAMPION CADILLAC AND CHAMPION CHEVROLET WHEREAS, the Champion Cadillac and Champion Chevrolet dealerships (collectively, "Champion Dealerships") currently operate at 78611 Highway 1 1 1 in the City of La Quinta; and WHEREAS, the City of Indio and the Champion Dealerships have stated their intent to enter into financial assistance agreements in order to relocate the Champion Dealerships to the 1-10 Auto Mall in the City of Indio; and WHEREAS, on November 14, 2003, the City of Indio delivered to the City of La Quinta two tax sharing contracts to the City of La Quinta, which the City of Indio contends comply with Government Code Section 53084; and WHEREAS, the proposed contracts offered by Indio are attached hereto as Exhibit "A" (the Championship Chevrolet contract) and Exhibit "B" (the Championship Cadillac contract); NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, California, as follows: SECTION 1 The above recitals are incorporated as true and correct and are hereby adopted as the findings by the City Council. SECTION 2 The City Council hereby approves the proposed Tax Sharing Contracts for the relocation of the Champion Cadillac and Champion Chevrolet dealerships, subject to the changes and clarifications, if any, deemed appropriate by the Acting City Manager and the City Attorney, and agreed upon by the City of Indio. SECTION 3 The City Council authorizes the Acting City Manager to execute the contracts on behalf of the City of La Quinta. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this 2nd day of December, 2003, by the following vote to wit: 05 S:\CityMgr\STAFF REPORTS ONLY\BS6 Reso.DOC iw City Council Resolution 2003- Approval of Tax Sharing Agreements - Champion Dealerships December 2, 2003 Page 2 AYES: NOES: ABSENT: ABSTAIN: DONALD ADOLPH, Mayor City of La Quinta, California ATTEST: JUNE S. GREEK, City Clerk City of La Quinta, California APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California we EXHIBIT A Economics Research Associates MARKET STUDY FOR A PROPOSED CHEVROLET DEALERSHIP PREPARED FOR THE CITY OF INDIO PREPARED BY ECONOMICS RESEARCH ASSOCIATES NOVEMBER 12, 2003 ERA PROJECT NO. 15303 10990 Wilshire Boulevard Suite 1500 Los Angeles, CA 90024 ERA is affiliated with Drivers Jonas 310.477.9585 FAX 310.478.1950 www.econres.com Los Angeles San Francisco San Diego r V Chicago Washington DC London Economics Research Associates Memorandum Date: November 12, 2003 To: Mr. Rudy Acosta Mr. Paul Servelle From: David A. Wilcox Amitabh Barthakur RE: Proposed Relocation of Chevrolet Dealership ERA No. 15303 The purpose of this memorandum report is to meet the Market Study requirement stipulated by Government Code Section 53084, which governs municipal governments, and parallel legislation pertaining to redevelopment agencies. This requirement was triggered by the proposed relocation of Champion Chevrolet, currently operating in La Quinta, California to the I-10 Auto Mall in Indio, California. Under this law, the City of Indio will be required to compensate the City of La Quinta. Current Location Champion Chevrolet is currently located on an approximately 2-acre site on Highway l I l at Simon Drive in La Quinta. This section of Highway 111 is essentially a surface street, controlled by periodic 4-way signal lights, and is experiencing increasing traffic congestion. The site, which also houses Champion Cadillac and a service center, is surrounded by retail uses. A 335,000 sq.ft. power center anchored by a Super Wal-Mart, Target, and Kohls is under construction immediately across Simon Drive (east of the dealership). Across Highway 111, immediately north of the dealership lies a newer community shopping center which includes a Ross Dress For Less, Starbucks Coffee, and family restaurants, among others. The site is framed with dramatic mountain views. Proposed Location (1-10 Auto Row) I-10 Auto Row is located on Varner Road —essentially a frontage road for Interstate 10— between Washington and Jefferson at the very north-western edge of Indio. It is highly visible from the freeway, and easily accessible from either direction. Currently, I-10 Auto Row is home to the following 6 dealerships: • Ford • GM (carrying Buick, GMC, and Pontiac) • Honda • Hyundai • Toyota Volkswagen. 10990 Wilshire Boulevard Suite 1500 Los Angeles, CA 90024 08 310.477.9585 FAX 310.478.1950 www.econres.com Los Angeles San Francisco San Diego New York Chicago Dallas Washington DC London 4.87 Economics Research Associates November 12, 2003 Page 2 The cluster was established in March, 1999, initially with two dealerships which were joined by a third in July of that year. The fourth dealer opened in January, 2000, the fifth r in May, 2001, and the sixth opened in January, 2003. In 2002, the five auto row dealerships were among the top 10 sales tax generators in the City of Indio. The owner of Champion Chevrolet (La Quinta) has secured a 5.75 acre site at the western edge of the existing I-10 Auto Row, at the corner of Varner and Fifties Way. He has requested development assistance from the City of Indio for construction of public improvements associated with the dealership. The site is located within the City's Business Park general plan designation. Surrounding land uses include low density residential to the north at the west end of the center, vacant and agricultural land to north and east, and a small neighborhood retail center containing two gas stations,. fast food, and a family restaurant, at the intersection of I-10 and Varner Road. The land on the south side of I-10 appears to be agricultural and low density residential. Market Analysis In the following sections ERA will discuss the key market and economic factors that need to be considered in view of the relocation of the dealership from La Quinta to Indio. These factors can be summarized under the following categories: • Population growth trends • Freeway location/visibility e Auto cluster synergy e Lack of space constraints • More appropriate use for site 0 Opportunity to consolidate operations of several dealerships Each of these factors is discussed below. Population Growth & Demographic Trends Table 1 presents 1990 and 2000 Census populations by jurisdiction for the nine Coachella Valley cities, compared with Riverside County as a whole. Between 1990 and 2000, all of the Coachella Valley communities except Palm Springs experienced growth in excess of the countywide average of 2.8 percent per year. Table 2 presents the same information for households, which reflects similar growth trends. California Department of Finance estimates show that,growth has further accelerated since 2000. As shown in Table 3, Indio added more than 5,300 residents between 2000 and 2003, an average annual increase of 3.5 percent. As of 2003, the 9 jurisdictions in the Coachella Valley combined are estimated to have a population of 283,422 persons. Of this, the three `East Valley' cities of La Quinta, Indio, and Coachella account for approximately 39 percent with 111,674 persons. However, Coachella Valley cities added 09 Economics Research Associates November 12, 2003 Page 3 more than 27, 600 persons during the 2000-2003 period, and the three East Valley cities accounted for 58 percent of this growth. This clearly demonstrates a shift in population growth towards the east end of the valley. The combined effect of high residential demand in the current market and availability of developable land in the east valley is the primary reason behind catalyzing this growth. Table 4 presents housing unit growth in Riverside County during the 2000-2003 period as reported by the California Department of Finance. The three East Valley cities comprise approximately 30 percent of the housing units in the Valley but account for approximately 55 percent of housing unit growth during the 2000- 2003 period. To illustrate population centers throughout the Coachella Valley, Figure 1 presents a dot density map depicting 2001 population, while Figure 2 presents the same based on 2006 projections. Both maps are based on estimates and forecasts from the Environmental Systems Research Institute (ESRI) Business Systems, Inc. These forecasts may not include some recent annexations and several new major housing projects planned for the area. Indio anticipates the addition of more than 8,000 housing units during the next five years (2003-2008). City of Indio officials state that these developments will shift Coachella Valley population further east. As illustrated in Table 5 below, Coachella Valley jurisdictions vary widely in terms of median household income. The community of Indian Wells, located southwest of La Quinta, enjoys the highest median household income at $93, 887, which is more than twice the countywide average. Indio has the third lowest median household income, at $34,600, 20 percent below the countywide median. Comparison of Trade Areas Based on our past experience with auto retailing establishments, familiarity with the Coachella Valley market, and perceptions of travel time for potential auto buyers, ERA has defined the overall trade area for the dealership as a 30-minute drive time. Auto dealerships in the area may penetrate market areas beyond the 30-minute distance, but the magnitude of this is likely to be marginal. ERA then used Geographic Information Systems (GIS) utility to generate spatial overlays of the drive times. Figure 3 illustrates 15- and 30- minute drive times from each of the sites, which are essentially identical. The I-10 Auto Mall site does enjoy an advantage in the 30-minute drive time market, as this market extends further westward along I-10 than the La Quinta site 30-minute drive time market. The existing and proposed Champion Chevrolet sites are just a few miles apart, undoubtedly located within the same trade area, both as defined by law, and based on proximity and access to consumer markets. It is also evident the primary trade areas of both locations are focused on the Coachella Valley communities. Table 6 presents comparative information on the 30-minute drive time market for the La Quinta and Indio locations. As shown, in 2001, population in the 30-minute drive time market for the Indio site exceeds population in the La Qunita 30-minute drive time market by more than 23,300, a 7 percent gain. Though median and average household incomes are lower in the Indio market, aggregate household income exceeds the La Quinta site by approximately $311. Projections for 2006 show a further improved picture, with an 10 4W V VIM November 12, 2003 Economics Research Associates Page 4 increase in population, households, average household income and aggregate household income. Taxable Sales Trends Table 7 displays annual taxable sales trends in key Coachella Valley cities. In 2001, Indio captured nearly $532 million in taxable sales, 35 percent of which was attributable to auto dealers and auto supplies. Between 1999 and 2000, total taxable sales increased by 18 percent, while taxable sales in auto -related categories increased by 36 percent. Between 2000 and 2001, taxable sales in auto -related categories grew even further, increasing 43 percent, while total taxable sales increased by only 12 percent. During both periods, auto - related taxable sales growth in Indio outpaced auto -related sales growth in the county. Table 8 presents quarterly taxable sales trends in key Coachella Valley cities for the most k recent three quarters. Prior to these three quarters, taxable sales data for auto -related categories was not available for La Quinta. This table allows a comparison of sales tax in auto -related categories between Indio, La Quinta, and Cathedral City, which hosts the other major auto cluster in the Coachella Valley. Among the three cities, Cathedral City receives the most taxable sales, and the greatest proportion from auto dealers and supplies (43 percent). Indio ranks squarely between Cathedral City in terms of total taxable sales as well as share attributable to auto -related sales (37 percent). Taxable sales from auto - related categories make up just 21 percent of total taxable sales in La Quinta, which slightly exceeds the proportion countywide of 18 percent. Existing Competition Secondary research reveals that there are approximately 25 auto dealerships' in the Coachella Valley, selling approximately 34 unique brands. Figure 4 presents the location of these dealerships, with existing Chevrolet dealerships indicated by a red triangle2. Table 8 presents an inventory of the dealerships in the valley. Note that this list is not comprehensive and ERA has used a number of sources including windshield surveys, yellow pages research, and other internet based listings from manufacturers in compiling it. There is also a Chevrolet dealership in Yucca Valley, which lies outside of the market area, but within the desert region. There are also auto clusters in inland southern California that provide some competition for the site including the Riverside Auto Mall, San Bernardino Auto Row (along I-210) and the Temecula/Murrieta auto cluster. Regional commuting patterns result in a market where consumers may buy a car far beyond where they live. Auto Cluster Synergy The retail auto industry has documented that when dealers are clustered, sales at each individual dealership exceed what they would have if they were located alone. Taxable sales trends for I-10 Auto Mall dealers bear this out in Indio, as shown in Table 9. As shown, I-10 auto dealerships generated nearly $18 million in taxable sales in 1999, or $8.2 ' Excluding used car -only dealerships. 2 Due to the scale of the map and the fact that some dealerships are very close to one another, some of the markers overlap, thus there are fewer than 25 dots visible on the map. 11 Economics Research Associates November 12, 2003 Page 5 million per dealership per year. By 2000, total taxable sales from I-10 dealerships had increased to more than $46 million. In 2000, there were four fully operational dealerships in the park, for average taxable sales of more than $11.6 million per dealership —an increase of 40 percent over the previous year. In 2001, when the Auto Mall added a fifth dealership, average sales per dealership jumped to nearly $20.5 million, a 76 percent increase over the previous year. Though sales slowed markedly in 2002, a reflection of nationwide consumer trends, average sales per dealership increased by approximately $500,000, a 2 percent increase —completely absorbing the addition of a new dealership. Direct Point Advisors, Incorporated, consultant to the retail auto industry has provided estimated sales volumes for Champion Chevrolet assuming a relocation to the I-10 Auto Mall in 2005. These estimates show a 6 percent increase in sales during the first year of operation and an additional 16 percent increase in the second year, once the dealership is fully established. Freeway Location/Visibility The retail auto industry has also documented the benefits of freeway -visible location. In a densely populated urban metro area, freeway visibility and associated ease of access are critical. In a less concentrated region such as the Coachella Valley, freeway visibility is ' somewhat less critical but still presents benefits to auto dealers. Lack of Space Constraints The current dealership location in La Quinta is completely constrained to its current size of two acres. Since acquiring the dealership in 2001, the dealer has markedly increased sales, indicating support for expanded facilities. More Appropriate Use for Site The current dealership on Highway 111 is located on a key retail corner in La Quinta, on the city's main east -west corridor just east of (and visible from) Washington, the city's main north -south thoroughfare. Though visible, the dealership is out of proper context, completely surrounded by community and big box retail uses. It is reasonable to assume that the highest and best use for the site may be a use other than an auto dealership and service center, more likely higher intensity retail or commercial. ERA has, however, not conducted a highest and best use analysis of the existing location to confirm this. In contrast, the I-10 auto mall is a highly appropriate place for a Chevrolet dealership. Opportunity to Consolidate Dealership Operations The Cadillac dealership currently located with the Chevrolet dealership in La Quinta is under the same ownership. The I-10 Auto Mall location is large enough to allow the relocation of both businesses, which will maintain current operating efficiencies of a combined dealership. The operational benefits of co -location must not be understated. Co -location will allow for efficiencies in management, accounting, and other back office operations, as well as sales and financing operations. Due to stringent regulations established by GM protecting brand Economics Research Associates November 12, 2003 Page 6 territory, this opportunity to co -locate may not be readily available elsewhere in the Coachella Valley. Market Study Conclusion ERA concludes that the current and proposed dealership sites are within the same market area based on our review of independent studies and literature and the following factors: • In a comprehensive study of the San Bernardino/Riverside County sub -region conducted by ERA in 1995, ERA determined that the Coachella Valley is a distinct market area within the San Bernardino/Riverside County sub -region. • The distance between sites is both within the prior "I 0-mile rule" and within the newer "40-mile trade area" guideline established by California law. • ERA analyzed taxable sales data from the California State Board of Equalization regarding sales performance in cities with auto clusters and those without auto clusters in the Coachella Valley. • ERA used demographic and Geographical Information Systems data from ESRI Business Solutions to determine the 30-minute drive time market for each site. • ERA used Department of Finance population estimates to document the current population and recent growth by jurisdiction in the Coachella Valley. General Limiting Conditions Every reasonable effort has been made to ensure that the data contained in this study reflect the most accurate and timely information possible, and they are believed to be reliable. This study is based on estimates, assumptions and other information developed by Economics Research Associates from its independent research effort, general knowledge of the industry and consultations with the client and the client's representatives. No responsibility is assumed for inaccuracies in reporting by the client, the client's agent and representatives or any other data source used in preparing or presenting this study. This report is based on information that was current as of November 2003 and Economics Research Associates has not undertaken any update of its research effort since such date. No warranty or representation is made by Economics Research Associates that any of the projected values or results contained in this study will actually be achieved. Possession of this study does not carry with it the right of publication thereof or to use the name of "Economics Research Associates" in any manner without first obtaining the prior written consent of Economics Research Associates. No abstracting, excerpting or summarization of this study may be made without first obtaining the prior written consent of Economics Research Associates. This report may not be reproduced without prior written consent of Economics Research Associates. This report is not to be used in conjunction with any public or private offering of securities or other similar purpose where it may be relied upon to any degree by any person other than the client without first obtaining the prior written consent of Economics Research Associates. This study may not 13 ., Economics Research Associates November 12, 2003 Page 7 be used for purposes other than that for which it is prepared or for which prior written consent has first been obtained from Economics Research Associates. This study is qualified in its entirety by, and should be considered in light of, these limitations, conditions and considerations. 14 `'93 Table 1 Riverside County and Coachella Valley Population, 1990-2000 ` Change 1990-2000 1990 2000 Absolute % CAGR Riverside County 1,170,413 1,545,387 374,974 32.0% 2.8% Cathedral City 30,085 42,647 12,562 41.8% 3.6% Coachella 16,896 22,724 5,828 34.5% 3.0% Desert Hot Springs 11,668 16,582 4,914 42.1% 3.6% Indian Wells 2,647 3,816 1,169 44.2% 3.7% Indio 36,793 49,116 12,323 33.5% 2.9% La Quinta 11,215 23,694 12,4.79 111.3% 7.8% Palm Desert 23,252 41,155 17,903 77.0% 5.9% Palm Springs 40,181 42,807 2,626 6.5% 0.6% Rancho Mirage 9,778 13,249 3,471 35.5% 3.1% 9-City Subtotal 182,515 255,790 73,275 40.1 % 3.4% Source: US Census Bureau (1990 & 2000 Censuses) Table 2 Riverside County and Coachella Valley Households, 1990-2000 1990 2000 Change 1990-2000 Absolute % CAGR Riverside County 402,067 506,218 104,151 25.9% 2.3% 0 Cathedral City 10,918 14,027 3,109 28.5% 2.5% Coachella 3,713 4,807 1,094 29.5% 2.6% Desert Hot Springs 4,586 5,859 1,273 27.8% 2.5% Indian Wells 1,258 1,982 724 57.6% 4.7% Indio 10,747 13,871 3,124 29.1% 2.6% La Quinta 3,931 8,445 4,514 114.8% 7.9% Palm Desert 10,595 1.9,184 8,589 81.1 % 6.1 % Palm Springs 18,622 20,516 1,894 10.2% 1.0% Rancho Mirage 4,833 6,813 1,980 41.0% 3.5% 9-City Subtotal 69,203 95,504 26,301 38.0% 3.3% Source: US Census Bureau (1990 & 2000 Censuses) 15 . Table 3 Population Estimates by Jurisdiction for Riverside County, 2000-2003 Change 2000-2003 CAGR 2000 2001 2002 2003 Absolute % 2000-2003 i Banning 23,562 23,878 24,655 25,504 1,942 8.2% 2.7% Beaumont 11,384 11,517 12,212 13,783 2,399 21.1% 6.6% Blythe 20,463 20,788 21,230 21,211 748 3.7% 1.2% Calimesa 7,139 7,186 7,276 7,333 194 2.7% 0.9% Canyon Lake 9,952 10,124 10,352 10,511 559 5.6% 1.8% Cathedral City 42,647 43,937 45,445 47,292 4,645 10.9% 3.5% Coachella 22,724 23,277 24,295 26,772 4,048 17.8% 5.6% Corona 124,966 129,284 134,046 137,006 12,040 9.6% 3.1 % Desert Hot Springs 16,582 16,715 16,896 17,181 599 3.6% 1.2% Hemet 58,812 59,821 61,534 62,223 3,411 5.8% 1.9% Indian Wells 3,816 4,133 4,351 4,396 580 15.2% 4.8% Indio 49,116 50,267 52,218 54,450 5,334 10.9% 3.5% La Quinta 23,694 25,993 28,732 30,452 6,758 28.5% 8.7% Lake Elsinore 28,928 29,925 31,075 33,035 4,107 14.2% 4.5% Moreno Valley 142,381 143,833 146,522 150,203 7,822 5.5% 148% Murrieta 44,282 46,281 51,661 56,982 12,700 28.7% 8.8% Norco 24,157 24,419 24,912 25,245 1,088 4.5% 1.5% Palm Desert 41,155 41,933 42,889 43,917 2,762 6.7% 2.2% Palm Springs 42,807 43,254 43,741 43,997 1,190 2.8% 0.9% Perris 36,189 36,781 37,532 38,200 2,011 5.6% 1.8% Rancho Mirage 13,249 13,795 14,353 14,965 1,716 13.0% 4.1% Riverside 255,166 261,302 269,558 274,071 18,905 7.4% 2.4% San Jacinto 23,779 24,530 25,305 26,041 2,262 9.5% 3.1 % Temecula 57,716 61,558 72,758 75,014 17,298 30.0% 9.1 % Unincorporated 420,721 429,766 441,771 465,753 45,032 10.7% 3.4% Riverside County Total 1,545,387 1,584,297 1,645,319 1,705,537 160,150 10.4% 3.3% Source: California Department of Finance (Table 2: E--5 City/County Population and Housing Estimates, 41112000 DRU Benchmark) Table 4 Household Estimates by Jurisdiction for Riverside County, 2000-2003 Change 2000-2003 CAGR 2000 2001 2002 2003 Absolute % 2000-2003 Banning 8,923 8,987 9,212 9,511 588 6.6% 2.2% Beaumont 3,881 3,902 4,109 4,633 752 19.4% 6.1% Blythe 4,103 4,192 4,300 4,318 215 5.2% 1.7% Calimesa 2,982 2,983 2,998 3,015 33 1.1 % 0.4% Canyon Lake 3,643 3,683 3,737 3,786 143 3.9% 1.3% Cathedral City 14,027 14,349 14,728 15,292 1,265 9.0% 2.9% Coachella 4,807 4,893 5,068 5,572 765 15.9% 5.0% Corona 37,839 38,906 40,034 40,824 2,985 7.9% 2.6% Desert Hot Springs 5,859 5,869 5,887 5,973 114 1.9% 0.6% Hemet 25,252 25,535 26,084 26,321 1,069 4.2% 1.4% Indian Wells 1,982 2,133 2,228 2,246 264 13.3% 4.3% Indio 13,871 14,112 14,556 15,152 1,281 9.2% 3.0% La Quinta 8,445 9,207 10,100 10,680 2,235 26.5% 8.1% Lake Elsinore 8,817 9,064 9,340 9,907 1,090 12.4% 4.0% Moreno Valley 39,225 39,376 39,806 40,713 1,488 3.8% 1.2% Murrieta 14,320 14,875 16,483 18,143 3,823 26.7% 8.2% Norco 6,136 6,183 6,347 6,429 293 4.8% 1.6% Palm Desert 19,184 19,425 19,717 20,144 960 5.0% 1.6% Palm Springs 20,516 20,603 20,678 20,751 235 1.1 % 0.4% Perris 9,652 9,749 9,872 10,025 373 3.9% 1.3% Rancho Mirage 6,813 6,972 7,164 7,425 612 9.0% 2.9% Riverside 8Z,005 83,358 85,230 86,332 4,327 5.3% 1.7% San Jacinto 8,314 8,525 8,729 8,963 649 7.8% 2.5% Temecula 18,293 19,388 22,555 23,199 4,906 26.8% 8.2% Unincorporated 137,329 139,447 142,501 149,978 12,649 9.2% 3.0% Riverside County Total 506,218 515,716 531,463 549,332 43,114 8.5% 2.8% Source: California Department of Finance (Table 2: E-5 City/County Population and Housing Estimates, 41112000 DRU Benchmark) 17 Table 5 .Median Household Income Coachella Valley Cities Median Household Income in 1999 Riverside County $42,887 Indian Wells $93,986 Rancho Mirage $59,826 La Quinta $54,552 Palm Desert $48,316 Cathedral City $38,887 Palm Springs $35,973 Indio $34,624 Coachella $28,590 Desert Hot Springs $25,987 Source: US Census Bureau (2000 Census). �J� c O •�^^ MMO 0 n _ t*Or`!� Np0 MM 01 c w 0 00M00 '5 N f*"% — ^ 00 O M Iq N 1, n1 ri d' %D V4 M T- 49# iR m Ln 0 1--. W CI q* Ln m 00 t%'� 1-� fv t0 M � 00 dq M e•- 404 V°V c O c \ o o c to F.M N LA 0 00 ^ Ln O .- fMY1 O O r- .-M N 00 4R b4 � v Ln m O 1- 00 C ' rn 0 M V- N n O 00 LA M 00 00 O �1 C1 O M Ln rq J N V4 V4 MSC Ong �00 ton^. d; I to 00 r- C�OtG nG1Ui O .E N4 a •G 5 c' h b O ++ O •C O b � G zi O u c 4° .° ,g+ w o � as +� C •� •OG .� Cr h O �0 U ` .-x 01 Li H Oi O O w O G �C G b '^ ,N O e V a`, b IS �+ H V O u iiUb O S. E E O O h W a cc cc tm Z W W Q 1 1 VO9 19 Table 7 Auto -Related Taxable Sales, 1999-2001 (thousands) 1999 2000 2001 % Change $ % - $ $ °IV 1999-2000 2000-2001 radio Auto dealers and auto supplies $95,464 24% $130,246 27% $185,893 35% 36% 43% All Retail Outlets $318,955 80°% $385,117 81 % $444,519 84% 21 % 15°% Total All Outlets $401:104 100% $473,781 100% $531,686 100% 18% 12% La Ouinta Auto dealers and auto supplies n/a Na n/a n/a n/a n/a n/a n/a All Retail Outlets $185,731 77°% $248,586 78% $268,789 81°% 34% 8% Total All Outlets $240,453 100% $318,057 100% $333,840 100% 32% 5% Cathedral Crtv Auto dealers and auto supplies $227,984 100°% $260,198 38°% $282,616 40% 14°% 9°% All Retail Outlets $495,960 218% $570,563 84% $596,982 84°% 15% 5% Total All Outlets $609,829 267% $680,502 100% $707,465 100°% 12% 4% Palm Desert Auto dealers and auto supplies $8,878 1°% $8,108 1°% $8,825 1% -9% 9% All Retail Outlets $912,663 83% $1,020,025 84°% $1,015,932 84% 12% 0% Total All Outlets $1,098,211 100% $1,217,986 100°% $1,211,069 100% 11% -10% Palm Springs Auto dealers and auto supplies $66,789 12°% $74,409 12°% $78,645 13% 11% 6°% All Retail Outlets $400,185 74% $454,198 76% $481,196 77°% 130% 6% Total All Outlets $542,041 100% $601,316 100% $623,956 100°% 11% 4°% Riverside County Auto dealers and auto supplies $2,161,678 14°% $2,615,997 15% $2,924,508 16°% 21 % 12% All Retail Outlets $10,685,724 71°% $12,190,474 72% $13,173,281 72% 14% 8°% Total All Outlets $15,076,945 100°% $16,979,449 100% $18,231,555 100°% 13% 7°% Source: California State Board of Equalization and Economics Research Associates. 00 093 r - t Table 8 r Auto -Related Taxable Sales, 2003 Year -to -Date (thousands) 2003 YTD Total 1st Quarter 2nd Quarter 3rd Quarter $ % Indio Auto dealers and auto supplies $47,020 $50,659 $49,761 $147,440 37% All Retail Outlets $109,375 $117,441 $107,961 $334,777 84% Total All Outlets $131,498 $139,462 $127,671 $398,631 100% La Ouinta Auto dealers and auto supplies $17,186 $17,363 $20,810 $55,359 21% All Retail Outlets $76,138 $76,051 $69,157 $221,346 82% Total All Outlets $96,175 $93,175 $79,616 $268,966 100% Cathedral City Auto dealers and auto supplies $77,122 $79,015 $82,776 $238,913 43% All Retail Outlets $158,385 $161,257 $157,201 $476,843 85% Total All Outlets $185,596 $190,551 $184,602 $560,749 100% Palm Desert Auto dealers and auto supplies $1,866 $1,641 $1,723 '$5,230 1% All Retail Outlets $276,967 $242,120 $192,259 $711,346 84% Total All Outlets $328,630 $290,659 $230,915 $850,204 100% Palm Springs Auto dealers and auto supplies $17,216 $15,523 $15,969 $48,708 11% All Retail Outlets $130,028 $124,379 $100,324 $354,731 78% Total All Outlets $170,048 $160,503 $125,181 $455,732 100% Riverside County Auto dealers and auto supplies $785,062 $832,432 $883,534 $2,501,028 18% All Retail Outlets $3,322,175 $3,551,916 $3,450,150 $10,324,241 73% Total All Outlets $4,559,989 $4,896,534 $4,760,280 $14,216,803 100% Note: Data for the fourth quarter, 2003 has not yet been released. Source: California State Board of Equalization and Economics Research Associates. 300 Table 9 Inventory of Coachella Valley Auto Dealerships Brand Dealer. Location Acura Acura Of The Desert Cathedral City Buick Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Cadillac Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Chrysler Crystal Chrysler Center Cathedral City Ford Palms Springs Ford Lincoln Mercury Cathedral City GMC Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Honda Honda of the Desert Cathedral City Hummer Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Hyundai Crystal Hyundai Cathedral City Lexus Desert Lexus Cathedral City Lincoln Palms Springs Ford Lincoln Mercury Cathedral City Mazda Mazda of the Desert Cathedral City Mercury Palms Springs Ford Lincoln Mercury Cathedral City Mitsubishi Champion Mitsubishi Cathedral City NA RPM Motors Cathedral City Pontiac Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pontiac Cathedral City SAAB Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pontiac Cathedral City Saturn Saturn Of The Desert Cathedral City Subaru Subaru Super Store Cathedral City Toyota Toyota Of The Desert Inc. Cathedral City Buick Coachella Valley Pontiac Buick GMC Indio GMC Coachella Valley Pontiac Buick GMC Indio Honda Unicars Honda Indio Hyundai 1-10 Hyundai Indio Pontiac Coachella Valley Pontiac Buick GMC Indio Suzuki Desert Suzuki Indio Toyota 1-10 Toyota Indio Volkswagen Paradise Volkswagen Indio Ford Fiesta Ford Indio Cadillac Champion Cadillac La Quinta Chevrolet Champion Chevrolet La Quinta Jeep Dodge City Chrysler Jeep La Quinta Kia Kia Superstore La Quinta Mazda Mazda Superstore La Quinta Nissan Palm Springs Nissan La Quinta Nissan Torre Nissan La Quinta Subaru Subaru Superstore La Quinta NA Auto On the Mall Palm Desert NA Desert Auto Sales Palm Desert BMW BMW of Palm Springs Palm Springs Buick Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Cadillac Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Chevrolet Mac Magruder Chevrolet Palm Springs GMC Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Infiniti Palm Springs Infiniti Palm Springs Mercedez Benz Mercedes-Benz of Palm Springs Palm Springs NA Exotic Motor Cars Palm Springs Oldsmobile Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Land Rover Land Rover Rancho Mirage Rancho Mirage NA Desert European Motor Cars Ltd Rancho Mirage Source: Verizon Yellowpages, individual maufacturer websites, and Economics Research Associates. �2 301 Table 10 Average Taxable Sales Per 1-10 Auto Mall Dealership i 1999-2002 1999 2000 2001 2002 Total Taxable Sales $423,506,400 $495,881,400 $530,933,700 $559,902,900 Autos and Transportation $130,531,700 $164,238,400 $220,108,500 $224,292,200 1-10 Auto Dealerships $17,981,784 $46,471,242 $93,858,175 $96,148,600 # Dealerships in Mall' 2.2 4.0 4.6 5.0 Average Taxable Sales/Dealership $8,299,285 $11,617,811 $20,478,147 $20,977,876 % Change from Previous Year -- 40% 76% 2% 4 Timeline: Month/Year # Open March 1999 2 July 1999 3 January 2000 4 May 2001 5 January 2003 6 ' Weighted based on month dealerships added (Timeline). Source: City of Indio Finance Department. 23 3G2 w W C 0 .c N s 0 a 0 a a� 24 u, 3 s C m m 14 Tvli Wj 26 3 a i wl h _ µY f I _ J J Y i �Py •::{ 4,4 _i a 6 u 306 EXHIBIT B Economics Research Associates MARKET STUDY FOR A PROPOSED CADILLAC DEALERSHIP PREPARED FOR THE CITY OF INDIO PREPARED BY ECONOMICS ASSOCIATES NOVEMBER 12, 2003 ERA PROJECT NO.15303 28 10990 Wilshire Boulevard Suite 1500 Los Angeles, CA 90024 ERA Is affiliated with Drivers Jonas 310.477.9585 FAX 310.478.1950 www.econres.com Los Angeles San Francisco San Diego 1 Chicago Washington DC London 3 c % a. Economics Research Associates i Memorandum Date: November 12, 2003 To: Mr. Rudy Acosta Mr. Paul Servelle From: David A. Wilcox Amitabh Barthakur RE: Proposed Relocation of Cadillac Dealership ERA No. .15303 The purpose of this memorandum report is to meet the Market Study requirement stipulated by Government Code Section 53084, which governs municipal governments, and parallel legislation pertaining to redevelopment agencies. This requirement was _triggered by the proposed relocation of Champion Cadillac, currently operating in La Quinta, California to the I-10 Auto Mall in Indio, California. Under this law, the City of Indio will be required to compensate the City of La Quinta. Current Location Champion Caddillac is currently located on an approximately 2-acre site on Highway 111 at Simon Drive in La Quinta. This section of Highway I I I is essentially a surface street, controlled by periodic 4-way signal lights, and is experiencing increasing traffic congestion. The site, which also houses Champion Chevrolet and a service center, is surrounded by retail uses. A 335,000 sq.ft. power center anchored by a Super Wal-Mart, Target, and Kohls is under construction immediately across Simon Drive (east of the dealership). Across Highway 111, immediately north of the dealership_ lies a newer community shopping center which includes a Ross Dress For Less, Starbucks Coffee, and family restaurants, among others. The site is framed with dramatic mountain views. Proposed Location (1-10 Auto stow) I-10 Auto Row is located on Varner Road —essentially a frontage road for Interstate 10— between Washington and Jefferson at the very north-western edge of Indio. It is highly visible from the freeway, and easily accessible from either direction. Currently, I-10 Auto Row is home to the following 6 dealerships: • Ford • GM (carrying Buick, GMC, and Pontiac) • Honda • Hyundai • Toyota Volkswagen. 9 10990 Wilshire Boulevard Suite 1500 Los Angeles, CA 90024 310.477.9585 FAX 310.478.1950 www.econres.com Los Angeles San Francisco San Diego New York Chicago Dallas Washington DC London 303 November 12, 2003 Page 2 Economics Research Associates The cluster was established in March,1999, initially with two dealerships which were joined by a third in July of that year. The fourth dealer opened in January, 2000, the fifth in May, 2001, and the sixth opened in January, 2003. In 2002, the five auto row dealerships were among the top 10 sales tax generators in the City of Indio. j . The owner of Champion Cadillac (La Quinta). has secured a 5.75 acre site at the western edge of the existing I-10 Auto Row, at the corner of Varner and Fifties Way. He has ` requested development assistance from the City of Indio for construction of public improvements associated with the dealership. The site is located within the City's Business Park general plan designation. Surrounding land uses include low density residential to the north at the west end of the center, vacant and agricultural land to north and east, and a small neighborhood retail center containing two gas stations,. fast food, and a family restaurant, at the intersection of I-10 and.Varner ` Road. The land on the south side of I-10 appears to be agricultural and low density residential. Market Analysis In the following sections ERA will discuss the key market and economic factors that need to be considered in view of the relocation of the dealership from La Quinta to Indio. These factors can be summarized under the following categories: • Population growth trends • Freeway location/visibility • Auto cluster synergy F • Lack of space constraints • More appropriate use for site • Opportunity to consolidate operations of several dealerships Each of these factors is discussed below. Population Growth & Demographic Trends Table 1 presents 1990 and 2000 Census populations by jurisdiction for the nine Coachella Valley cities, compared with Riverside County as a whole. Between 1990 and 2000, all of the Coachella Valley communities except Palm Springs experienced growth in excess of the countywide average of 2.8 percent per year. Table 2 presents the same information for households, which reflects similar growth trends. California Department of Finance estimates show that growth has further accelerated since 2000. As shown in Table 3, Indio added more than 5,300 residents between 2000 and 2003, an average annual increase of 3.5 percent. As of 2003, the 9 jurisdictions in the Coachella Valley combined are estimated to have a population of 283,422 persons. Of this, the three `East Valley' cities of La Quinta, Indio, and Coachella account for approximately 39 percent with 111,674 persons. However, Coachella Valley cities added ERA_ Economics Research Associates November 12, 2003 Page 3 more than 27, 600 persons during the 2000-2003 period, and the three East Valley cities accounted for 58 percent of this growth. This clearly demonstrates a shift in population 1 growth towards the east end of the valley. The combined effect of high residential demand in the current market and availability of developable land in the east valley is the primary reason behind catalyzing this growth. Table 4 presents housing unit growth in Riverside r County during the 2000-2003 period as reported by the California Department of Finance. The three East Valley cities comprise approximately 30 percent of the housing units in the Valley but account for approximately 55 percent of housing unit growth during the 2000- 2003 period.. To illustrate population centers throughout the Coachella Valley, Figure 1 presents a dot density map depicting 2001 population, while Figure 2 presents the same based on 2006 projections. Both maps are based on estimates and forecasts from the Environmental. Systems Research Institute (ESRI) Business Systems, Inc. These forecasts may not include some recent annexations and several new major housing projects planned for the area. Indio anticipates the addition of more than 8,000 housing units during the next five years (2003-2008). City of Indio officials state that these developments will shift Coachella Valley population further east. As illustrated in Table 5, Coachella Valley jurisdictions vary widely in terms of median household income. The community of Indian Wells, located southwest of La Quinta, enjoys the highest median household income at $93, 887, which is more than twice the countywide average. Indio has the third lowest median household income., at $34,600, 20 I ercent below the countywide median. Comparison of Trade Areas Based on our past experience with auto retailing establishments, familiarity with the Coachella Valley market, and perceptions of travel time for potential auto buyers, ERA has defined the overall trade area for the dealership as a 30-minute drive time. Auto dealerships in the area may penetrate market areas beyond the 30-minute distance, but the magnitude of this is likely to be marginal. ERA then used Geographic Information Systems (GIS) utility to generate spatial overlays of the drive times. Figure 3 illustrates 15- and 30- minute drive times from each of the sites, which are essentially identical. The I-10 Auto Mall site does enjoy an advantage in the 30-minute drive time market, as this market extends further westward along I-10 than the La Quinta site 30-minute drive time market. The existing and proposed Champion Cadillac sites are just a few miles apart, undoubtedly located within the same trade area, both as defined by law, and based on proximity and access to consumer markets. It is also evident the primary trade areas of both locations are focused on the Coachella Valley communities. Table 6 presents comparative information on the 30-minute drive time market for the La Quinta and Indio locations. As shown, in 2001, population in the 30-minute drive time market for the Indio site exceeds population in the La Qunita 30-minute drive time market by more than 23,300, a 7 percent gain. Though median and average household incomes are lower in the Indio market, aggregate household income exceeds the La Quinta site by approximately $311. Projections for 2006 show a further improved picture, with an 31. 3.1 0 Economics Research Associates November 12, 2003 Page 4 increase in population; households, average .household income and aggregate household i- income. The I-10 Auto Mall is located slightly further from the wealthier areas of Coachella Valley than the current location in La Quinta, and the dealer has provided information indicating that this is expected to temper sales growth initially upon relocation. However, the dealer has also indicated his expectation that the dealership will thrive once it becomes ` established in its new location. Taxable Sales Trends Table 7.displays annual taxable sales trends in key Coachella Valley'cities. In 2001, Indio captured nearly $532 million in taxable sales, 35 percent of which was attributable to auto dealers and auto supplies. Between 1999 and 2000, total taxable sales increased by 18 percent, while taxable sales in auto -related categories increased by 36 percent. Between 2000 and 2001, taxable sales in auto -related categories grew even further, increasing 43 percent, while total taxable sales increased by only 12 percent. During both periods, auto - related taxable sales growth in Indio outpaced auto -related sales growth in the county. Table 8 presents quarterly taxable sales trends in key Coachella Valley cities for the most recent three quarters. Prior to these three quarters, taxable sales data for auto -related categories was not available for La Quinta. This table allows a comparison of sales tax in auto -related categories between Indio, La Quinta, and Cathedral City, which hosts the other major auto cluster in the Coachella Valley. Among the three cities, Cathedral City receives the most taxable sales, and the greatest proportion from auto dealers and supplies (43 percent). Indio ranks squarely between Cathedral City in terms of total taxable sales as well as share attributable to auto -related sales (37 percent). Taxable sales from auto - related categories make up just 21 percent of total taxable sales in La Quinta, which. slightly exceeds the proportion countywide of 18 percent. Existing. Competition Secondary research reveals that there are approximately 25 auto dealerships' in the Coachella Valley, selling approximately 34 unique brands. Figure 4 presents the location of these dealerships, with existing Cadillac dealerships indicated by a red circle?. Table 9 presents an inventory of the dealerships in the valley. Note that this list is not comprehensive and ERA has used a number of sources including windshield surveys, yellow pages research, and other internet based listings from manufacturers in compiling it. There are also auto clusters in inland southern California that provide some competition for the site including the Riverside Auto Mall, San Bernardino Auto Row (along I-210) and ;the Temecula/Murrieta auto cluster. Regional commuting patterns result in a market where consumers may buy a car far beyond where they live. 1 Excluding used car -only dealerships. ? Due to the scale of the map and the fact that some dealerships are very close to one another, some of the markers overlap, thus there are fewer than 25 dots visible on the map. 311 November 12, 2003 Economics Research Associates Page 5 Auto Custer Synergy The retail auto industry has documented that when dealers are clustered, sales at each individual dealership exceed what they would have if they were located alone. Taxable sales trends for I-10.Auto Mall dealers bear this out in Indio, as shown in Table 10. As shown, I-10 auto dealerships generated nearly $18 million in taxable sales in 1999, or $8.2 million per dealership per year. By 2000, total taxable sales from I-10 dealerships had increased to more than $46 million. In 2000, there were four fully operational dealerships in the park, for average taxable sales of more than $11.6 million per dealership —an increase of 40 percent over the previous year. In 2001, when the Auto Mall added a fifth dealership, average sales per dealership jumped to nearly $203 million, a 76 percent increase over the previous year. Though sales slowed markedly in 2002, a reflection of nationwide consumer trends, average sales per dealership increased by approximately $500,000, a 2 percent increase —completely absorbing the addition of a new dealership. Freeway Location/Visibility The retail auto industry has .also documented the benefits of freeway -visible location. In a . densely populated urban metro area, freeway visibilityand associated ease of access are critical. In a less concentrated region such as the Coachella Valley, freeway visibility is , somewhat less critical but still presents benefits to auto dealers. Lack of Space Constraints The current dealership location in La Quinta is completely constrained to its current size of two acres. Since acquiring the dealership in 2001, the dealer has markedly increased sales, indicating support for expanded facilities. More Appropriate Use for Site The current dealership on Highway 111 is located on a key retail corner in La Quinta, on the city's main east -west corridor just east of (and visible from) Washington, the city's main north -south thoroughfare. Though visible, the dealership is out of proper context, completely surrounded by community and big box retail uses. It is reasonable to assume that the highest and best use for the site may be a use other than an auto dealership and service center, more likely higher intensity retail or commercial. ERA has, however, not conducted a highest and best use analysis of the existing location to confirm this. In contrast, the I-10 auto mall is a highly appropriate place for an auto dealership. Opportunity to Consolidate Dealership Operations The Chevrolet dealership currently located with the Cadillac dealership in La Quinta is under the same ownership. The I-10 Auto Mall location is large enough to allow the relocation of both businesses, which will maintain current operating efficiencies of a combined dealership. The operational benefits of co -location must not be understated. Co -location will allow for efficiencies in management, accounting, and other back office operations, as well as sales and financing operations. Due to stringent regulations. established by GM protecting brand i 11 33 :� 1 4 Economics Research Associates November 12, 2003 Page 6 territory, this opportunity to co -locate may not be readily available elsewhere in the Coachella Valley. Market Study Conclusion ERA concludes that the current and proposed dealership sites are within the same market area based on our review of independent studies and literature and the following factors: • In a comprehensive study of the San Bernardino/Riverside County sub -region conducted by ERA in 1995, ERA determined that the Coachella Valley is a distinct market area within the San Bemardino/Riverside County sub -region. • The distance between sites is both within the prior "I 0-mile rule" and within the newer "40-mile trade area" guideline established by California law. • ERA analyzed taxable sales data from the California State Board of Equalization regarding sales performance in cities with auto clusters and those without auto clusters in the Coachella Valley. • ERA used demographic and Geographical Information Systems data from ESRI Business Solutions to determine the 30-minute drive time market for each site. • ERA used Department of Finance population estimates to document the current population and recent growth by jurisdiction in the Coachella Valley. General Limiting Conditions Every reasonable effort has been made to ensure that the data contained in this study reflect the most accurate and timely information possible, and they are believed to be reliable. This study is based on estimates, assumptions and other information developed by Economics Research Associates from its independent research effort, general knowledge of the industry and .consultations with the client and the client's representatives. No responsibility is assumed for inaccuracies in reporting by the client, the client's agent and representatives or any other data source used in preparing or presenting this study. This report is based on information that was current as of November 2003 and Economics Research Associates has not undertaken any update of its research effort since such date. No warranty or representation is made by Economics Research Associates that any of the projected values or results contained in this study will actually be achieved. Possession of this study does not carry with it the right of publication thereof or to use the name of "Economics Research Associates" in any manner without first obtaining the prior written consent of Economics Research Associates. No abstracting, excerpting or summarization of this study may be made without first obtaining the prior written consent of Economics Research Associates. This report may not be reproduced without prior written consent of Economics Research Associates. This report is not to be used in conjunction with any public or private offering of securities or other similar purpose where it may be relied upon to any degree by any person other than the client without first obtaining the prior written consent of Economics Research Associates. This study may not 34 313 r• Economics Research Associates November 12, 2003 Page 7 be used for purposes other than that for which it is prepared or for which prior written consent has first been obtained from Economics Research Associates. This study is qualified in its entirety by, and should be considered in light of, these limitations, conditions and considerations. 35 314 Table 1 Riverside County and Coachella Valley Population, 1990-2000 Change 1990-2000 1990 2000 Absolute % CAGR Riverside County 1,170,413 1,545,387 374,974 32.0% 2.8% Cathedral City 30,085 42,647 12,562 41.8% 3.6% Coachella 16,896 22,724 5,828 34.5% 3.0% Desert Hot Springs 11,668 16,582 4,914 42.1% 3.6% Indian Wells 2,647 3,816 1,169 44.2% 3.7% Indio 36,793 49,116 12,323 33.5% 2.9% La Quinta 11,215 23,694 12,479 111.3% 7.8% Palm Desert 23,252 41,155 17,903 77.0% 5.9% Palm Springs 40,181 42;807 2,626 6.5% 0.6% Rancho Mirage 9,778 13,249 3,471 35.5% 3.1 % 9-City Subtotal 182,515 255,790 73,275 40.1 % 3.40/6 Source: US Census Bureau (1990 & 2000 Censuses) Table 2 Riverside County and Coachella Valley Households, 1990-2000 Change 1990-2000 1990 2000 Absolute. % CAGR Riverside County 402,067 ' 506,218 104,151 25.9% 2.3% 0 Cathedral City 10,918 14,027 3,109 28.5% 2.5% Coachella 3,713 4,807 1,094 29.5% 2.6% Desert Hot Springs 4,586 5,859 1,273 27.8% 2.5% Indian Wells 1,258 1,982 724 57.6% 4.716r6 Indio 10,747 13,871 3,124 29.1% 2.6% La Quinta 3,931 8,445 4,514 114.8% 7:9% Palm Desert 10,595 19,184 8,589 81.1 % 6.1 % Palm Springs 18,622 20,516 1,894 10.2% 1.0% Rancho Mirage 4,833 6,813 1,980 41.0% 3.5% 9-City Subtotal 69,203 95,504 26,301 38.0% 3.3% Source: US Census Bureau (1990 & 2000 Censuses) 315 i t Table 3 Population Estimates by Jurisdiction for Riverside County, 2000-2003 Change 2000-2003 CAGR 2000 2001 2002 2003 Absolute % 2000-2003 Banning 23,562 23,878 .24,655 25,504 1,942 8.2% 2.7% . Beaumont 11,384 11,517 12,212 13,783 2,399 21.1% 6.6% Blythe 20,463 20,788 21,230 21,211 748 3.7% 1.2% Calimesa 7,139 7,186 7,276 7,333 194 2.7% 0.9% Canyon Lake 9,952 10,124 10,352 10,511 559 5.6% 1.8% Cathedral City 42,647 43,937 45,445 47,292 4,645 10.9% 3.5% Coachella 22,724 23,277 24,295 26,772 4,048 17.8% 5.6% Corona 124,966 129,284 134,046 137,006 12,040 9.6% 3.1 % Desert Hot Springs 16,582 16,715 16,896 17,181 599 3.6% 1.2% Hemet 58,812 59,821 61,534 62,223 3,411 5.8% 1.9% Indian Wells 3,816 4,133 4,351 4,396 580 15.2% 4.8% Indio 49,116 .50,267 52,218 54,450 5,334 10.9% 3.5% La Quinta 23,694 25,993 28,732 30,452 6,758 28.5% 8.7% Lake Elsinore 28,928 29,925 31,075 33,035 4,107 14.2% 4.5% Moreno Valley 142,381 143,833 146,522 150,203 7,822 5.5% 1.8% Murrieta 44,282 46,281 51,661 56,982 12,700 28.7% 8.8% Norco 24,157 24,419 24,912 25,245 1,088 4.5% 1.5% Palm Desert 41,155 41,933 42,889 43,917 2,762 6.7% 2.2% Palm Springs 42,$07 43,254 43,741 43,997 1,190 2.8% 0.9% Perris 36,189 36,781 37,532 38,200 2,011 5.6% 1.8% Rancho Mirage 1.3,249 13,795 14,353 14,965 1,716 13.0% 4.1 % Riverside 255,166 261,302 269,558 274,071 18,905 7.4% 2.4% San Jacinto 23,779 24,530 25,305 26,041 2,262 9.5% 3.1 % Temecula 57,716 61,558 72,758 75,014 17,298 30.0% 9.1% Unincorporated .420,721 429,766 441,771 465,753 45,032 10.7% 3.4% Riverside County Total 1,545,387 1,584,297 1,645,319 1,705,537 160,150 10.4% 3.3% Source: California Department of Finance (Table 2: E-5 City/County Population and Housing Estimates, 41112000 DRU Benchmark) Table 4 Household Estimates by Jurisdiction for Riverside County, 2000-2003 Change 2000-2003 CAGR 2000 2001 2002 2003 Absolute % 2000-2003 Banning 8,923 8,987 9,212 9,511 588 6.6% 2.2% Beaumont 3,881 3,902 4,109 4,633 752 19.4% 6.1% Blythe 4,103 4,192 4,300 4,318 215 5.2% 1.7% Calimesa 2,982 2,983 2,998 3,015 33 1.1 % 0.4% Canyon Lake 3,643 3,683 3,737 3,786 143 3.9% 1.3% Cathedral City 14,027 14,349 14,728 15,292 1,265 9.0% 2.9% Coachella 4,807 4,893 5,068 5,572 765 15.9% 5.0% Corona 37,839 38,906 40,034 40,824 2,985 7.9% 2.6% Desert Hot Springs 5,859 5,869 5,887 5,973 114 1.9% 0.6% Hemet 25,252 25,535 26,084 26,321 1,069 4.2% 1.4% Indian Wells 1,982 2,133 2,228 2,246 264 13.3% 4.3% Indio 13,871 1-4,112 14,556 15,152 1,281 9.2% 3.0% La Quinta 8,445 99207 10,100 10,680 2,235 26.5% 8.1% Lake Elsinore 8,817 9,064 9,340 9,907 1,090 12.4% 4.0% Moreno Valley 39,225 39,376 39,806 40,713 1,488 3.8% 1.2% Murrieta 14,320 14,875 16,483 18,143 3,823 26.7% 8.2% Norco 6,136 6,183 6,347 6,429 293 4.8% 1.6% Palm Desert 19,184 19,425 19,717 20,144 960 5.0% 1.6% Palm Springs 20,516 20,603 20,678 20,75.1 235 1.1% 0.4% Perris 9,652 9,749 9,872 10,025 373 3.9% 1.3% Rancho Mirage 6,813 60972 7,164 7,425 612 9.0% 2.9% Riverside 82,005 83,358 85,230 86,332 4,327 5.3% 1.7% San Jacinto 8,314 8,525 8,729 8,963 649 7.8% 2.5% Temecula 18,293 19,388 22.,555 23,199 4,906 26.8% 8.2%. Unincorporated 137,329 139,447 142,501 149,978 12,649 9.2% 3.0% Riverside County Total 506,218 515,716 531,463 549,332 43,114 8.50/6 2.8% Source: California Department of Finance (Table 2: E-S City/County Population and Housing Estimates, 41112000 DRU Benchmark) '38 �1; Table 5 Median Household Income Coachella Valley Cities Median Household Income in 1999 Riverside County $42,887 Indian Wells $93,986 Rancho Mirage $59,826 La Quinta $54,552 Palm Desert $48,316 Cathedral City $38,887 Palm Springs $35,973 Indio $34,624 Coachella $28,590 Desert Hot Springs $25,987 Source: US Census Bureau (2000 Census). 39 ��8 C O c c o -.e c 0 C N ^ t0 G O N C1 iA M N4 49 M M O CtoC1 o0M0 . N ^ ^ 00 OM �l N r,rn ' q* M � HRH G1 Ln pn00 to n0� 1) qt Ln C1 00 O M qq w V4 n1 r- 404 4r9 c O +=+OC finO M LLAOr- •-- r- M i n N M r4`A 0 ; v v N .wLnM ono C M O N r%% M Co. Ln M 00 00 0 Ln M O N rn Ln iq M+R MtD 1--00 p I.- V- t0 t- n tG tp n C1 Lr O �E w w _ E v 2 O d C v c C 2 %A 2 u 2 0 2 +� O h �0 =N m 23 2 d 60 d.2 OQQ 40 j1� Table 7 Auto -Related Taxable Sales, 1999-2001 (thousands) 1999 2000 2001 % Change $ % _ $ % $ % 1999-2000 2000-2001 Indio Auto dealers and auto supplies $95,464 24% $130,246 27% $185,893 35% .36% 43% All Retail Outlets $318,955 80% $385,11.7 81 % $444:519 840A 21 % 15% Total All Outlets $401,104 100% $473,781 100% $531,686 100% 18%. 12% La Ouinta Auto dealers and auto supplies Na Na Na Na Na n/a Na n/a All Retail Outlets $185,731 77% $248,586 78% $268,789 81% . 34% 8% Total All Outlets $240,453 100% $318,057 100% $333,840 100% 32% 50A . Cathedral .City Auto dealers and auto supplies $227,984 100% $260,198 38% $282,616 40% 14% 9% All Retail Outlets $495.960 218% $570,563 84% $596,982 84% 15% 5% Total All Outlets $609,929 267% $680,502 100% $707,465 100% 12% 4% Palm Desert Auto dealers and auto supplies $8,878 1 % $8,108 1 % . $8,825 1 % -9% 9% All Retail Outlets $912,663 83% . $1,020,025 84% $1,015,932 84% 12% 0% Total All Outlets $1,098,211 100% $1,217,986 100% $1,211,069 160% 11% -1% Palm Springs Auto dealers and auto supplies $66,789 12% $74,409 12% $78,645 13% 11% 6% All Retail Outlets $400.185 74% $454,198 76% $481,196 77% 13% 6% Total All Outlets $542,041 100% $601,316 100% $623,956 100% 11% 4% Riverside Countv Auto dealers and auto supplies $2,161,678 14% $2,615,997 15% $2,924,508 16% 21% 12% All Retail Outlets $10,685,724 71% $12,190,474 72% $13,173,281 72% 14% 8% Total All Outlets $15,076,945 100% $16,979,449 100% $18,231,555 100% 13% 7% Source: California State Board of Equalization and Economics Research Associates. 41 r t�/n0 Table 8 Auto -Related Taxable Sales, 2003 Year -to -Date (thousands) 2003 YTD Total 1st Quarter 2nd Quarter 3rd Quarter $ % Indio Auto dealers and auto supplies $47,020 $50,659 $49,761 $147,440 37% All Retail Outlets $109,375 $117,441 $107,961 $334,777 84% Total All Outlets $131,498 $139,462 $127,671 $398,631 100% La' Quinta Auto dealers and auto supplies $17,1.86 $17,363 $20,810 $55,359 21% All Retail Outlets $76,138 $76,051 $69,157 $221,346 82% Total All Outlets $96,175 $93,175 $79,616 $268,966 100% Cathedral City Auto dealers and auto supplies $77,122 $79,015 $82,776 $238,913 43% All Retail Outlets $158,385 $161,257 $157,201 $476,843 85% Total All Outlets $185,596 $190,551 $184,602 $560,749 1fl0 /o Palm Desert Auto dealers and auto supplies $1,8fi6 $1,641 $1,7Z3 $5,230 1% All Retail Outlets $276,967 $242,120 $192,259 $711,346 84% Total All Outlets $328,630 $290,659 $230,915 $850,204 100% Palm Springs Auto dealers and auto supplies $17,216 $15,523 $15,969 ' $48,708 11% All Retail Outlets $130,028 $124,379 $100,324 $354,731 78% Total All Outlets $170,048 $160,503 $125,181 $455,732 100% Riverside County Auto dealers and auto supplies $785,062 $832,432 $883,534 $2,501,028 18% All Retail Outlets $3,322,175 $3,551,916 $3,450,150 $10,324,241 73% I All O tle is $4 559 989 $4,896,534 $4,760,280 $14,216,803 100% Tota u Note: Data for the fourth quarter, 2003 has not yet been released. Source: California State Board of Equalization and Economics Research Associates. 42 Table 9 _ Inventory of Coachella Valley Auto Dealerships t Brand Dealer location Acura. Acura Of The Desert Cathedral City Buick Jessup Auto Plaza --.Cadillac SAAB Hummer Buick Pon Cathedral City Cadillac Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Chrysler Crystal Chrysler tenter Cathedral .City Ford Palms Springs Ford Lincoln Mercury Cathedral City GMC Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Honda Honda of the Desert Cathedral City Hummer Jessup. Auto Plaza -- Cadillac SAAB Hummer Buick Pon Cathedral City Hyundai Crystal Hyundai Cathedral City Lexus Desert Lexus Cathedral City Lincoln Palms Springs.Ford Lincoln Mercury Cathedral City Mazda Mazda of the Desert Cathedral City Mercury Palms Springs Ford Lincoln Mercury Cathedral. City Mitsubishi Champion Mitsubishi Cathedral City NA RPM Motors Cathedral City Pontiac Jessup Auto Plaza — Cadillac SAAB Hummer Buick Pontiac Cathedral City SAAB Jessup Auto Plaza -- Cadillac SAAB Hummer Buick Pontiac Cathedral City r Saturn Saturn Of The Desert Cathedral City Subaru Subaru Super Store Cathedral City Toyota Toyota Of The Desert Inc. Cathedral City t Buick Coachella Valley Pontiac Buick GMC Indio GMC Coachella Valley Pontiac Buick GMC Indio Honda Unicars Honda Indio Hyundai 1-10 Hyundai Indio .Pontiac Coachella Valley Pontiac Buick GMC Indio Suzuki Desert Suzuki Indio Toyota 1-10 Toyota Indio Volkswagen Paradise Volkswagen Indio Ford Fiesta Ford Indio Cadillac Champion Cadillac La Quinta Chevrolet Champion Chevrolet La Quinta Jeep Dodge City Chrysler Jeep La Quinta Kia Kia Superstore La Quints Mazda Mazda Superstore La Quinta Nissan Palm Springs Nissan La Quinta Nissan Torre Nissan La Quinta. Subaru Subaru Superstore La Quinta NA Auto On the Mall Palm Desert NA Desert Auto Sales Palm Desert BMW BMW -of Palm Springs Palm Springs Buick Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Cadillac Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Chevrolet Mac Magruder Chevrolet Palm Springs GMC Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Infiniti Palm Springs Infiniti Palm Springs Merced ez Benz Mercedes-Benz of Palm Springs Palm Springs NA Exotic Motor Cars Palm Springs Oldsmobile ° Plaza Motors Oldsmobile Cadillac Buick GMC Palm Springs Land Rover Land Rover Rancho Mirage Rancho Mirage NA Desert European Motor Cars Ltd Rancho Mirage , Source: Verizon Yellowpages, individual maufacturer websites, and Economics Research Associates. 43 r Table 10 Average Taxable Sales Per 1-10 Auto Mall Dealership 1999-2002 1999 2000 2001 2002 Total Taxable Sales $423,506,400 $495,881,400 $530,933,700 $559,902,900 Autos and Transportation $130,531,700 $164,238,400 $220,108,500 $224,292,200 1-10 Auto Dealerships $17,981,784 $46,471,242 $93,858,175 $96,148,600 # Dealerships in Mall' 2.2 4.0 4.6 5.0 Average Taxable Sales/Dealership $8,299,285 $11,617,811 $20,478,147 $20,977,876 %Change from Previous Year — 40% 76'/0 2% Timeline: Month/Year_ # Open March 1999 2 July 1999 3 January 2000 4 May 2001 5 January 2003 6 ' Weighted based on month dealerships added (Timeline). Source: City of Indio Finance Department 44 340.3 • � 8 r I - • ;�. f • .2Y. t,• • I w e • - . aOle s _J .-. • , �� it may.: • - NCI • �. r-"_"' j. •'y , • • • � l "� 1.--, i! a • •AC OL .. • ...- y U � 1•t � • � v".g • • tx MOM- iK • t J ar �• - 1 • • • 4 .a .' • • • • • • • •o • i • • , to i_ • � 1 tom. • • '• •, • .• -4.. - - t • •... • g • • . . w•,.. • . h II J 3=+ �) i f t* j _ t r i. � t� C: r �{ i r{ Sc 4b �y • .. • •• .• is ' • • •• • • aLop L ..- jr sip i +� • •,•00 • r • • .,• • • to t. Y _ jj;,•. , �• r! •-'•.fit!• V � •''`:: • _;.,',�;. t • AS 0 • • .•o • • • Ilk • • '�i '" • .. • • • 41iol •. . _ .- .• as x� • to • • -_ : :: •• - • • • ,' • • • • 1p ,so • , •,.• • f . •. • •J • s • • I • r 1•••• • • •• • • • N - W,- 48 N ATTACHMENT Mt CITY OF INDIO INCORPORATED 1930 Novemberia, 2003 HAND DELIVERED Mark Weiss, Acting City Manager City of La Quinta 78495 Calle Tampico La Quinta, CA 92253 rE FpPl, �--: - 71 NOV Ia 20M " RE: Financial Assistance to Desert Automotive, LLC for relocation of Champion Chevrolet and Champion Cadillac to the City of Indio Dear Mr. Weiss: Pursuant to Govt. Code Section 53084, the City of Indio is required to provide notice of certain documents to the City of La Quinta in two ways: 1) under 53084(b), notice of the public hearing(s) called by the Council for December 30, 2003, and a copy of the market area report(s) shall be mailed to La Quinta. In addition, under subsection (c), at least 45 days prior to the December 30 public hearing, the City of Indio must send to you a tax -sharing contract approved by a 4/5ths vote of the Indio City Council. That contract was approved by the Council on November 13, 2003, and we believe it meets the criteria set out in Section 53084. That contract and the enclosed staff report are your notification that the City of Indio intends to give financial assistance to these two dealerships, pending a successful outcome of the Govt. Code Section 53084 process. r Staff has been authorized to negotiate with you regarding that contract. Please contact Rudy Acosta, Redevelopment Agency/Economic Development Director at (760) 342-6500 if you have questions or comments. We look forward to working with you. Very truly yours, CITY OF INDIO JTHIABHEERNANDEZ DEPUTY CITY CLERK, CMC CITY OF INDIO • 100 CIVIC CENTER MALL • P.O. DRAWER 1788 • INDIO, CA 92202 49 DEPARTMENT TELEPHONE NUMBERS, ALL IN 760 AREA CODE City Clerk 865-5437 City Manager 342-6580 • Economic Development/Redevelopment 342-6541 Finance 342-6560 Fire 347-0756 • Human Resources 342-6540 • City Hall Fax 342-6556 r)..l:..,. 10A7 OC77 Cnv QA7_AQ17 • Gnninonrinn gA7-Rz;'2n • r.itu Vorrl '2d7-1 Or%R • CAninr r:PntPr R47-5111 301218 4 STAFF REPORT CITY COUNCIL. MEETING . . F TO: Honorable Mayor and Members of the Indio City Council : a TH1 IJ _ Tom Ra-murez .Citx Manager • Rudy Acosta, Director of RedevelopmenVtconomic Development^ FROM. . y sta., , IaAT Noveml?cf 13, 2003 StMOI C'T: Financial Assistance. to. Deseri•Automotive, PLC For Relocation of pion Chevrolet and ChampionCadill ac Desert Automotive LLC has requested that the City. of Indio consider providing' financial assistance for the development of the auto dealerships in the form of sales tax rebates: The assistance provided would be contained in two separate agreements, one with Champion Chevrolet and the other with Champion Cadillge, Both dealerships are .currently located within the city of La Qninta on Highway 111 but are. experiencing expansion constraints due to existing adjacent developments4 Therefore, Desert Automotive L.L.C., has approached the City of Indio with their proposal to take advantage of the ' I-10 Auto Mall location. In order to facilitate providing said I toe City of Indio must follow the strict process as required by Govef�a ent Code Section 53084 and: outlined in the background section, of this staffrepoft., ALCKGROUND:: proposed The ro osed financial assistance to the (stand alone) Chevrolet dealership would be. . -used to fund the construction of the public improvement portion of the development site located at Varner Road and Fifties way. This site is approximately 5.75 acres in area. Overall project improvements *ill include civil and landscaping improvements as well as a 35,000 square foot structure to be used for sales, showroom and - maintenance services. For the Cadillac dealership, the assistance would be used for the relocation of that dealership to a site within the I-10 Auto Mall Area and to fund the 50 ITEM NO. 3 3� 1 Staff Report Page 2 public improvements associated vvithi the cos'trruction of a separate standalone dealership on such site. Similarly, the project fi-nprovements will include civil and landscape improvements as well -as the sales, showroom and service facilities. The proposals are consistent with the current use of the area as it relates to automobile sales - in the I=10 Auto Mall district and the proposed site is located in the City's Business. Park (BP) zoning designation. New cars are proposed to be sold at bOth deaf eiships as the primary sales product with used car sales as a. secondary product. , If approved, the.requested financial assistance is proposed to. be distributed through a performance based sales tax sharing plan (Financial Assistance Agreement)prorated over a five (5) year period and commencing upon operation of the dealerships. The assistance provided, to each dealership;. will be capped at $900,492.00 and rebated as follow year one at 75%2 year two at 50%, year three at 300/6- and 5% and less in .the yond has-been The Finnca-Ass noacap amount istance Agreements are attached for your information but cannot be scheduled: for - approval until after a notice public hearing- as explained below. - The estimated dealership development cost (for the Chevrolet site) is $'7.7 million, 'including land acquisition of approximately $2 million. For the Cadillac dealership, the developer is seeking a site at the Auto Mall area within similar cost range and it is anticipated that the dealership facilities cost will be. equal to the Chevrolet facilities. PROCESS OF APPROVAL: •. - Because each dealership will essentially be relocating from the City of La Quinta and- 11id..City of Indio will be providing financial assistance at the new locations; such financial assistance must be approved after following the process as set forth in Government Code Section 53084:- -In addition, such financial assistance must be approved prior to January 1; 2004, after which time it will be prohibited by new:(Jovt. Code Section 53084 (Stats. 2003, ch: 781). finally, as also required by state law, the City has prepared a Market Area Study Report which concludes that the dealerships are relocating within the same market' area. Because of that, the City must schedule a public hearing and provide the report to the public not less than 45 days before the hearing. The hearing is proposed for December 30, 2003: The report will be made public tomorrow, November 14, 2003. � � n . Staff Report Page 3 'Tha Fiiia cial Assistance agreements. will be scheduled for approval by the Council at the conclusri on of that public hearing, = - the Market Study Notice of the heari g mu t be. published an�d:..pr+ovided along with , report to the City of La Quinta. - finally,,and most im ortantly, in order to go forward, tonight the City Council must p vtract':with the City of La Quinta which provides for with that City . approve a con ty _ the increase in the sales tax generated by the relocated dealership. A copy of that Tax Sharing Contract is attached, The sharing is calculated as follows 1i the. amount of assistance provided is subtracted from the sales tax received and the balance, if any, is . . ' to annuall. will not be divided evenly with La Quits. The amount given to La Quui Y : • moire than that which was received in the .year before relocation of the dealership: The sharinga ement lasts for a period of 10 yearsi- we have provided that thc. T � .. • to challenges this • , Sharing Agreement will be of no force. anti effect f La Quin relocation .inany war. Sharing Contract with Q .Mta must be approved. by a 4/5ths: vote;of the The Tax g Council. If so approved, .it must be delivered to La Quints tomorrow (Friday, November 14, .2003). _ the develo er and City staff are performing the requires CEQA. rev a and- of before such fuj&nggs will be before you. ori.Decbmber:30►� 2bo3.,. if n , STAFFS REC41N .NI)ATIONi - the followin • 1 I tic on of prw4.- dukes p'ursuaYit to rrovts -Code w Staff recommendsg; Section 530849 to enter into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the relocation *and development of the Champion Chevrolet dealership from Highway 111 in the City of La Quintsto the I-10 Auto Mail in Indio; receive and consider the market study report. from ERA consultants adopt resolution setting a public hearing regarding, such financial assistance on December 3 0, 2003 and providing rovidin public -notice thereof; adopt the Tax Sharing Contract with La Quints and instruct and authorize staff to transmit and negotiate such contract to that city tomorrow and, (2) Initiation of procedures pursuant to Govt. Code Section 53084 to enter into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the relocation and development of the Champion Cadillac dealership from Highway 111 in the City of La Quints to the I-10 Auto Mall in Indio; receive and 52 3%31 .. Staff Report Page 4 ct�n rder ;fihe market study report for ERA consultants;, adopt r alutio�: setUn public hearing regarding such financial assistance on December 30, 2003 and prowl4ing• public notice thereof; adopt form of contract for tax sharing with City of La Quinta and instruct s autho ze sta to transmit and neg�otlat �su h coritr t PAOPOSED MOTION.4-' moire for approval'of 'and authorization for; (1 ) Initiation of procedures pursuant to ovt. Code Section 53084, to enter into an agreement with Desert Autonotiie,L.C. to provide financial assistance fbr the relocation' and-' developiritnt of the Champion Chevrolet dealership from Highway 111 m the t4 of La Quinta• ' o the T-4 0. Auto Ma11 in Indio; receive and consider the market study report from ERA consultants ; adopt resolution setting a public hearing regarding such financial assistance on December 30, 2003 -and providing public notice thereof; adopt Tax Sharing Contract with La Q ita and instruct and authorize: staff to transmit and negotiate such contract to that City; .and, (2) Initiations of procedures pursuant to Govt. Code -Section 53084 to' enter Otto an agreement with. Desert Automotive, L.L.C. to provide financial assistance for the r ibcat Eft •and- development of the Champion Cadillac dealership from I-fighwa� 111 in the City of Quints to the-1- Auto Mail in radio; receive anci consider the market study report.forERA consultant; adopt resolution setting public hearing: regarding such financial assistance on December 30, 2003 .arid providing public :none thereof; adopt Tax Sharing Contract with City of La Quinta and instruct and authorize staff to - ?s t a� . ne of a ncl Cot t to tha -City.. ...: Y f 53 3Q TAX SHARING CONTRACT This contract is made this day of 2003, by and between the City of Indio ("Indio') and the City of La Quinta ("La Quinta") in compliance with Govt. Code Section 53084. Recitals A. The purpose of this contract is to..apportion the sales tax generated from the relocated Champion Cadillac dealership ("Dealership's between Indio and La Quinta after the relocation of such Dealership as. required by Govt.: Code Section. 530.84-as it was in effect on December. 31, 2403. B.This Conract shall be executed. by the City of La Quinta. on or before December .:1:5 2003. - Now, therefore, the parties .agree as follows, - 1. Recitals. The Recitals set out above are true and correct. 2. Definitions: As used herein, the following words shall have the following meanings. a.. • Fiscal Year. "Fiscal Year" shall mean each city's fiscal year, 'Which commences on July 1 and ends on June 30. b.. Oualified Business. '"Qualified Business" shall mean the operation of the Dealership. ... c. "Quarter" shall mean any one of the three (3) month periods commencing July 1, October 1, January 1 or April 1. d. "Relocation." "Relocation" shall. mean the date on which Dealership reopens to the public and commences the sale of vehicles.after physically removing its operations from La Quinta and reopening in Indio. It shall not include such time as both t locations remain open. - ` e. Sales Tax. "Sales Tax" means, for each Quarter during the term of ."the Indio's tax sharing obligations hereunder, that portion of taxes M received by Indio from the imposition of the Bradley -Burns - Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue & Taxation Code) directly from the operation of the Qualified Business on the Property, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. For purposes of this: Agreement, the term "Sales Tax" shall not include the State Board of Equalization's administrative and processing fee attributable to Indio's portion of such taxes (calculated at the same 54 333 percentage of such taxes as applies citywide). In addition, "Sales Tax" shall not be deemed received by Indio until the Indio is able j to confirm receipt of such taxes from the State Board of Equalization. If California state law changes during the term of this Agreement so as to materially alter the method by which sales tax revenues are allocated among Jurisdictions, then the parties shall negotiate in good faith modifications to this Agreement to carry out its intended economic costs and benefits to each party. 3.. Term: Jhe term of this contract shall- commence on the date of Relocation; the fiscal year in which Relocation occurs shall be the first fiscal year hereof and this contract thereafter shall continue for a total of 10 fiscal years, after which time it shall terminate and be -of no further force and effect. (By way only of example, if the contrast commences on July. 1, 2005, it will terminate on June 30, 2015). -The contract may be extended on the same terms and conditions by the written agreement of both parties. The contract shall terminate immediately, before the end and regardless of the 10-year.° term, if the Dealership closes or otherwise ceases to sell vehicles to the public. 4. Determination of Tax Sharin a. Amount of Sales Tax: In June of each fiscal year, and annually thereafter for the term of this contract, commencing: with the fiscal year in.which the Relocation op.curs,'tndio shall determine the amount of Sales Tax. b. Financial Assistance Amount. Indio then shall subtract from the amount of Sales Tax the amount of financial assistance provided to the Dealership pursuant to the Financial Assistance Agreement - - between Indio and Dealership dated December 30, 2003 for that fiscal year (the• "Financial Assistance Amount'). C. Sales Tax Share. The Sales Tax remaining after the calculation in (A) shall be divided evenly between Indio and La Quinta. The amount to be paid to La Quinta's share shall be compared to the amount of sales tax that La Quinta received from the .Dealership in the 2003-2004 year (the fiscal year prior to Relocation) (the "base sales tax.') La Quints shall receive a share of the Sales Tax which 'is the same as or less than the base. sales tax (the "Sales Tax Share'). Prior to the first fiscal year in which the Sales Tax Share `will be determined, La Quinta shall provide to Indio the amount of base sales tax for the fiscal year prior to Relocation and supporting documentation therefore. d. Payment of the Sales Tax Share. The Sales Tax Share shall be paid . to La Quinta promptly and shall be accompanied by a summary of the formula used to reach the amount paid. 55 3: 4 0 e. Notwithstanding anything -herein to the contrary, in no event shall Indio be required to pay La Quinta any amount from any -funds other than from Sales Tax or any amount of any kind in any fiscal . year in which no Sales Tax is received or the amount of the Sales Tax minus the Financial Assistance Amount is zero (0) or less. 6. Miscellaneous. a. Headings and Captions.. The headings and captions in this contract are for.. convenience only and shall not be referred to in the interpretation of this Agreement. b. Waiver. The failure of any Party to exercise any power given it hereunder or to insist upon strict compliance with the terms of this contract shall not constitute a waiver of that.Party's right to demand exact compliance with the terms hereof. Waiver by a Party of any particular default by the other shall not affect or impair its rights with respect to any subsequent defaults of the same or of a different kind; nor shall any delay or omission by a Party to exercise any rights arising from any default affect or impair its right as to such default or any future default. Any consent or waiver by a party with respect to a breach by the other party, whether express. or implied, shall not constitute consent to, waiver of, or excuse for, any other different or subsequent breach. Failure by a party to enforce a provision of this contract at any time shall not be construed as a waiver of that provision. c. Severance. Should any part of this Agreement be declared invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the Parties. if such part is determined to be invalid and/or unenforceable any remainder of such provision, and of the entire Agreement, shall remain in full force and effect. d. Entire Agreement.. This contract contains the entire agreement between the Parties. Any and all verbal or written agreements made prior to the' date of this Agreement are superseded by this Agreement and shall have no further effect. No modification or change to the terms of this contract will be binding on a Party unless in writing and signed by an authorized representative of that Party. t 3-'.3JY f. Authorization. The persons executing this Agreement on behalf of the Parties hereby warrant that they have the authority and are duly authorized and are duly authorized to execute this Agreement on behalf of the Party they purport to .represent and can bind that Party to this Agreement. IN Witness Whereof, the patties have executed this Agreement effective as of 2003: 57 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA SETTING THE TIME AND PLACE FOR A PUBLIC HEARING REGARDING FINANCIAL ASSISTANCE TO CHAMPION CADILLAC TOPE USED IN PART FOR RELOCATION OF ITS DEALERSHIP 'TO THE CITY OF INDIO The .City Council of the City of Indio, Califomia DOES HEREBY DETERMINE, ORDER AND RESOLVE as follows: Section 1. That it has determined to proceed with financial assistance .to a relocating auto dealership pursuant to and by undertaking the process set out in Government Code Section 53084; and Section 2. That the has received a market area report from ERA which indicates that the dealership which proposes to relocate and to which financial assistance would be given, Champion Cadillac, is relocating within the same market area Section 3. That the market area "report Will -be made available to the public at the counter in City Hall, 100 Civic Center Mall, on November 14, 2003, which is at least 45 days before the public hearing; and Section 4. That the City Council understands that sales taxes generated by the relocated dealership are subject to division with the City of La Quinta pursuant to Govt. Code Section 53084 and have approved a contract to send to La Quinta offering that division; Section 5. That the hour of 6:00 PM one the 30th19th day of December, .2003, and the Council Chamber at .150 Civic Center Mall, Indio, California, are hereby fixed as the time and place for the .public hearing o evidence from any person(s) interested in, or objecting to, the proposed vacation of said streettright-of-way. Section 6. That the City Clerk is hereby instructed to publish this Resolution, 'providing notice of said hearing to the public, once weekly, for at least three successive weeks prior to said hearing, in the Desert Sun Newspaper, as required by Govt. Code Section 6063. Section 7. That the staff is hereby instructed to mail this notice along with a copy of the report prepared by ERA to the City of La Quinta and to provide any and all other notice requested by La Quinta pursuant to that City's request for special notice; PASSED, APPROVED and ADOPTED this 13th" day of November, 2003, by the following vote: 58 This FINANCIAL ASSISTANCE AGREEMENT (the "Agreement") is made and entered into as of the 3 Oth day of December, 2003, by and between the CITY of WDIO, a municipal corporation (the "City), and DESERT AUTOMOTIVE, LL(.,p a Delaware limited liability company ("Business').. RECITALS: A. their Cadillac HRA Investments, LLC and Business have determined to relocated -dealership from Highway 111 in La Quinta to the 1- 16 Auto Mall in Indio in order to have additional space and fi-eeway frontage not available at the current location and separate from the Champion Chevrolet de4lership; HRA Investments LLC and Business are in the process of locating and acquiring a separate parcel of land within the I- 10 Auto Mall (the area of which is described on Exhibit "A" attached hereto) suitable for the relocation, operation, maintenance and expansion of the Cadillac dealershipq and will make the showroom, maintenance and storage area improvements to such parcel as described on Exhibit A (collectively, the Parcel to be acquire and the improvements are referred to as the "Property"). C31 Business intends to relocate to and thereafter operate its Champion Cadillac dealership on the Property utilizing,in part, financial assistance from the City as set out in this Agreement D. ­ The City has agreed to provide contingent financial assistance to the Business on the terms and subject to the conditions hereinafterset forth. & The City has found that the provision of such financial assistance as set out here: (i) promotes the long-term employment of residents of the City and will f the significantly contribute to the maintenance, growth, and expansion o economic base of the City- (H) constitutes a valid exercise of the police powers of the City and serves public purposes in which the City has peculiar and unique interests; and (iii) otherwise substantially relates to the municipalaffairs of the city. COVENANTS: Based upon the foregoing Recitals and for good and valuable consideration2 the sufficiency of which is acknowledged by both parties, the City and Business hereby agree as follows: M owing terms shall We 1. 'Certain Defined Terms. As used this Agreement the fO11 the -meanings hereinafter set forth: 60 12283-0001\736663vl3.doc a. Fiscal Year. "Fiscal.Year" small mew the City's fiscal year, which commences on July 1 and ends on June 30. b. Qualified Business. "Qualified Business" shall mean the operation of a first-class Cadillac dealership by Business, �. "(� shall mean anyone of the three (3) month periods commencing July 1, October 1, January 1 or April 1. d. Sales Tax. "Sales Tax" means, for each Quarter during the term of the City's.payment obligations hereunder, that portion of taxes received by the City from the imposition of the Bradley -Burns Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue & Taxation Code) from the operation of the Qualified Business on the Property, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. For purposes of this Agreement, the term "Sales Tax" shall not include: (i) any portion of taxes received by the City from the operation of any of the Property that the City may be required to pay, transfer, assign, or allocate to any other entity or entities by virtue of any law now or hereafter existing, or by virtue of any agreement entered into between City and any other governmental entity under California Government Code Section 53084, specifically included that contract offered to the City. of La Quinta herewith as required by that state law; (H) the State Board of . Equalization's administrative and processing fee attributable to the City's portion of such taxes (calculated at the same percentage of such taxes as applies city-wide); and (iii) the sum of $500.00 per Quarter (representing a stipulated payment for the City's estimated Quarterly direct and indirect costs of administering this Agreement). In addition, "Sales Tax" shall not be considered to have been - received by the City until the City is able to confirm receipt of such taxes from the State Board of Equalization;, If California state law changes during the term of this Agreement so as to materially alter the method by which sales tax revenues are allocated among jurisdictions, then the parties shall negotiate in good faith modifications to this Agreement to carry out its intended economic costs and benefits to each party. . 2. Conditions Precedent. - Satisfaction (or written waiver) of each of the following are conditions to the parties' obligations under this Agreement: on or before * - (i) City's confiirmation of HRA Investments, LLC's or Business' acquisition of the Property, as shown by a copy of a title policy delivered to City, and delivery to.City of the plan for the improvements .on such specific parcel as well as a. copy of the Lease or other document(s) by which Business is given rights to operate the Qualified Business on the Property for at least the term of this Agreement; (H) the recordation in the Office of the County Recorder of Riverside County, California of "conditions, covenants and restrictions" ("CC&Rs") duly executed and acknowledged by Business containing the provisions of Sections 6(b) and (d), that are not subordinate to any lien (as shown by a current title policy in favor of City; (iii) Business's 12U3.-M1\73W3v13..doc 2 r „ obtaining financing for the construction of the improvements necessary for the Qualified Business, as shown by copies of executed financing documents delivered to .City; (iv) the City's receipt of a copy of the insurance ( and additional insured endorsement) described in Section 6e below; (v). compliance with any and all CEQA requirements of applicable land and/or the City; and (vi) on or before December 319 2003, the City's compliance. with California Government Code Section 53084 in connection with the transactions described herein. 3. Contingent Payments by City. In consideration of Business's compliance with Section 6 below in each full or partial Fiscal Year during the Term (as defined in. Section 4 below), the City shall make quarterly payments to Business in an amount equal to the applicable percentages of the total Sales Tax generated by the Qualified Business and received by the City during Fiscal Year as set forth in the following table (as. adjusted by the last paragraph of this Section 3). - . .... ... . , .. .., ... Each Fiscal Fiscal Year 1 2. 3 4. 5 yew. Thereafter Percent Payable to 75% 50%. 30%, ; 21.5%16.5% 16.5% Business The above percentages shall be increased or decreased, as applicable, by a percentage equal to: (a) the amount by which actual sales taxes from the operation of the Qualified Business in a particular Quarter.are greater or less than the projected sales taxes set forth in Exhibit "B" attached hereto, divided by (b) the projected sales taxes for such Quarter, determined by dividing by four (4) the projected sales tax -for the Fiscal Year containing the applicable Quarter that is set forth on Exhibit "B" (such that in the event actual sales taxes are greater than projected taxable sales for a Quarter, the percentage in the above table applicable to that Quarter shall be proportionately increased for such Quarter,. and in the event actual sales taxes for a Quarter are less. than projected sales taxes for that Quarter, the percentage in the above table applicable to that Quarter shall be proportionately decreased for that Quarter); provided, however, that each percentage increase or decrease in any. percentages set forth in the above table shall not exceed ten percent (10°le). 4. Term. This Agreement shall commence on December 30, 2003, after approval at the December 30, 2003, public hearing and, unless sooner terminated pursuant to Section 7 herein, shall expire on the date on which the City has fully. paid (without interest) to Business the sum of NINE HUNDRED THOUSAND FOUR HUNDRED NINETY-TWO DOLLARS ($9009492.00) (the "Term") or such date as Business relocates from the City. 5. Payment Procedures. a. Within thirty (30) days after the end of each Quarter during the Term of . this Agreement commencing with the first Quarter in which the Qualified Business opens for business to the general public as required by Section 6, 12283-MA736663v13.doc 3 3.:1 Business shall submit to the City's Finance Director, in writing, a payment request for Business's share of Sales Tax paid during such Quarter. The request shall include copies of all reports which have been submitted by Business to the State Board of Equalization for such Quarter, together with evidence available- to Business regarding the sales taxes actually paid to the State Board of Equalization by or on behalf of the Qualified Business . for such Quarter (e.g., cancelled checks). Following submission by Business of its completed payment request, the. City's Director of Finance (or designee) shall determine whether the payment request is complete and accurate, and if the determination of the Director (or designee) is that the request is complete. and accurate, the Director (or designee) shall approve or disapprove (subject to the : provisions below) such request. If the payment request contains the reports submitted by Business to the State Board of Equalization for the applicable Quarter and cancelled checks evidencing payment of sales tax . - to the State Board of Equalization for the. applicable Quarter; and if all reports required from Business by the State Board of Equalization relating to sales tax for that Quarter shall have been submitted to the -State Board of Equalization (with A concurrent copy delivered to the -City), then the payment request shall be deemed approved (unless there is an error in the payment request). Any disapproval shall state in writing the reasons for disapproval and the changes or additional information or documentation which the City deems necessary to comply with Business's request. In the event of a disapproval by the City, Business shall revise or supplement the request, and shall resubmit same to the City's Director of Finance as soon as is possible after receipt of the notice of disapproval. Thereafter, the City, through its Director of Finance, shallPramPtfy review, corifnr, and if determined to be complete and accurate, shall approve the -amount of the Sales Tax, if any, due to be paid to Business for the applicable Qu&ter. ' `- The review of the request for completeness "of documentation and information shall be completed by the City within fifteen (15) business days following the receipt of the request. The review of the requestior determination of accuracy may be based upon corroborating information provided to the City by either the State Board of Equalization andlor'any sales tax consultant retained by the City. - " c. Nothing contained in this Agreement shall obligate or -otherwise commit the City to' pay the portion of the Sales Tax. determined by the City to be due and payable to Business unless and until the City receives verification satisfactory to the City that it has received the Sales Tax attributable to sales from the Qualified Business for the Quarter for which a request has been made and approved by the City. d. Payment of the amount determined by -the City to be owing to Business for each Quarter during the Term of this Agreement shall be made by the City within fifteen (IS) days after the City has approved the payment request 63 12283-00011736663v13.doc 4 7 and has received verification satisfactory to it that it has received the Sales : Tax. attributable to sale from the Qualified Business for the Quarter for which a request has been made and approved by the City. 6.. Covenants and Representations of Business. During the Term of this Agreement, Business hereby covenants and agrees with the City as follows: a.. Business shall complete construction of all improvements for the Qualified Business and shall open- the Qualified Business on the .Property to the general public by June 30, 2005,. and Business shall thereafter continuously operate the Qualified Business on the Property; b. Business shall maintain and repair or cause.to be.maintained and repaired the improvements. and landscaping on the Property in good order, and in the condition (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws. In this regard, Business shall further r prevent the accumulation of any waste materials, rubbish, graffiti, weedsi or debris on the Property .and shall not permit any unlawful use or public or private nuisance -to occur on the Property. c. Business shall not oppose the formation of a redevelopment project area adopted in accordance with applicable law which includes the Property, or the amendment of a redevelopment plan adopted in accordance with applicable law which annexes the Property into a redevelopment project . area.. d. In its operation of the Property and the Qualified Business, Business agrees not to violate applicable laws regarding discrimination against any person or class of persons by reason of gender, marital status, race, color, creed, mental or physical disability, religion, age, ancestry, or national origin or otherwise. e. Business shall defend (with -counsel reasonably acceptable to City), indemnify and hold City and. its councilpersons, officers, agents and employees (collectively, the "Indemnified Parties") harmless from and against. all losses,. costs and expenses (including, without limitation, reasonable attorneys' fees or counsel acceptable to the City and costs), damages (including, without limitation, consequential damages), claims and liabilities arising from the activities of Business; its members, officers, employees, agents, contractors, invitees and any third parties on the Property, but only to the extent not caused by the acts, negligence or willful misconduct of the Indemnified Parties. The obligations of Business under this Section 6e shall survive the'expiration or any earlier termination, as applicable, of this Agreement. Business shall obtain contractual liability insurance to cover Business's obligations under this Section 6e and Business shall cause City to be required as'an additional insured on such insurance. G /1 12283-WO 11736663v 13.doc f. Promptly after the opening of the Qualified Business on the Property, Business shall join the "I-10 Auto Mall Association" and shall remain a member thereof during the Term *of this Agreement so long after the expiration or earlier termination of this Agreement as the Qualified Business operates on the Property. This Section 6g shall survive the expiration and any earlier termination of this Agreement and may be enforced by the "I-10 Auto Mall Association". g. The sole business of the entity operating the Qualified Business shall be sales, leasing and servicing of motor vehicles and other activities relating thereto. .7. Defaults and Termination. Failure by City to make a payment to Business that is required to be made by City to Business under this Agreement shall constitute a default by City under this Agreement. Notwithstanding any other provision set forth in this Agreement to the contrary, this Agreement and any obligation of the City to make payments to Business hereunder shall terminate without further notice or demand, at the City's option, upon the occurrence of the following events of default: a. Failure in the due, prompt, and complete observance or performance of any covenant or obligation set forth in this Agreement for a period of thirty (30) days after written notice to Business from the City Manager specifying the nature thereof; provided that Business shall not be in default under this subparagraph if the failure to observe or perform the covenant or obligation in question is curable but is of such a nature that it is incapable of being cured with reasonable diligence within that thirty (30) day period and Business commences such cure within that thirty (30) - day period and diligently and continuously pursues the same to completion. b. "Any of the representations or warranties by Business to the City contained. in Section 9m below proves to have been materially false or misleading when made. 8. Certain Remedies. ' City's sole and exclusive remedy for a default by Business under. Section 7a or 7b shall be termination of this Agreement pursuant to Section 7 above and/or injunctive relief, except that, in the event of a default by Business under Section 6(a) consisting of Business's failure to continuously operate the Qualified Business during the Term of this Agreement, then if Business or any owner of Business also opens a Cadillac automobile dealership outside of the City but within the same market area as the Qualified Business, then Business shall pay to City, and City shall be entitled to recover from Business, all payments made by City to Business under this Agreement made prior to the opening by Business of such Cadillac automobile dealership within the same market as the Qualified Business (collectively, the "Prior Payments'). Business hereby stipulates and agrees that the amount of the Prior Payments are a reasonable estimate of the damages and costs City shall incur by reason of the events described in the preceding sentence, and that such damages and costs are, by their nature, difficult and impractical to calculate and determine. 65 12U3-0001\73W3v13.doc 6 9. Provisions. a. General Provisions. This Agreement constitutes the. entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements and understandings of the parties with respect to the subject matter hereof. This Agreement may not be modified, amended, supplemented, or otherwise changed, except by a writing executed by both ..parties hereto. b Waiver. No failure or delay by any party in the exercise of any right hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of -any such right preclude other or further exercise thereof, or any other right. c. Captions. Section headings used in this Agreement.are for convenience of reference only and shall not affect the construction. of any provisions of this Agreement. d,. Assignment. Except as expressly provided herein, Business shall not . 'assign any of the rights or obligations under this Agreement without the prior written consent of City in its sole and absolute discretion. Business may assign this Agreement to an entity at least fifty one percent (51%) of the direct or indirect ownership interests of which are owned by Business (or by the owners of Business), or to an unaffiliated third party purchaser of the Qualified Business which has a good reputation and significant experience in operating a Cadillac automobile dealership (as determined in good faith by City), provided: (i) Business gives City at least ten (10) business days' prior written notice of the assignment with reasonable - evidence of the required ownership (oT reputation and experience, as . . applicable) and a copy of the assignment document(s); and (H) the assignee assumes all obligations of Business under this Agreement. In no event shall any assignment relieve Business from its obligations under this Agreement. e.. Calculation of Time. Except as may otherwise be provided, wherever this . Agreement states a period of time and number of days, it. shall be construed to mean calendar days; provided, however, that when any period of time so stated would end upon a Saturday, Sunday, or legal holiday, such period shall be construed to .end upon the%next day following which is not a Saturday, Sunday or legal holiday. f, Counterparts. This Agreement may be executed in two or more counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. 12283-OOOli73b663v13.doc 7 5: g. Governing Law. This Agreement shall be deemed w be a oontract made under the laws of the State of California and for all* purposes shall be governed by and construed in accordance with the laws of the State of - California. Authori ` : Each individual executing this Agreement on behalf of Business represents and warrants. did he/she is -duly authorized -to execute and deliver this Agreement on behalf of Business. - L Inability to Perform. Except as may be otherwise provided herein, performance by any party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where the party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonable control of the party (financial inability excepted) such as but not limited to war, . insurrection; acts of terrorism; riots; floods; earthquakes; fires; casualties; acts of nature; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; litigation that directly prevents performance by the Business or the City; weather; and other causes beyond the reasonable control or without the fault of the party. claiming an extension of time to perform that are not excluded above - (collectively, "Enforced Delays"); provided, however, that the party claiuung the extension notify the other party in writing of the nature of the matter constituting' the Enforced Delay within thirty (30) days after the party claiming the extension has notice of the occurrence of the Enforced Delay. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light -of the Enforced Delay and shall commence to run fi-om the time of the commencement of the cause. j. Notices. Notices given or to be given by City or Business to the other party hereunder may be personally served or may be served by certified return -receipt mail addressed to the appropriate address'hereinafter set forth or to such other address as such party may hereafter designate by written notice. If served by certified mail, service will be considered completed and binding on the party served on the date set forth in the certification receipt. To C : City of Indio 100 Civic Center Mall Indio, California 92202 Attn: City Manager To Business: Desert Automotive LLC clo Champion Cadillac Cadillac 78-611 Highway - 111 La Quinta, CA 92253 12283-WW1\73t663v13.doc 8. �� �j k. With a copy to: Attn: Richard Hauke, President PlanetAutomotive Group, Inc. 2333 Ponce de Leon Blvd., Ste. 600 Coral Gables, Florida 33134 Attn: President and Chief Financial Officer Attomeys' Fees and Costs. If a dispute arises under or in connection with this Agreement that -results in an arbitration ('including, without limitation, the enforcement or interpretation of this Agreement), the prevailing party (as determined by the arbitrators) shall be entitled to recover its reasonable attorneys' fees and costs incurred in such arbitration from the other party. 1.. Alternative Dispute Resolution. If a dispute arises regarding the making, formation, interpretation, or performance of this Agreement, City and Business agree to. adhere to the dispute resolution protocol as delineated and explained. herein. (i) NEGOTIATION: City and Business will make a good faith effort to resolve any claim or issues as to this Agreement, through negotiation. The parties shall meet at the offices of the City to negotiate within ten (10) days after any party sends a notice to the other referring to this Section. (ii) MEDIATION: If City and Business cannot resolve such a claim or issue as to this Agreement, through negotiation by the date that is fifteen (15) business days after the date of the notice described in clause (a) above, then that claim or issue shall be the subject of mediation, administered by a mediator. (iii) ARBITRATION. Should mediation fail to resolve such a claim or issue as to this Agreement, then that claim or issue shall be the subject of arbitration administered by an arbitrator or multiple arbitrators sitting on a panel... (iv) LITIGATION (Limited): City or Business may pursue an action at law or in equity with respect to a claim or. issue as to this Agreement that has been subject to mediation -and arbitration only as specified in clause (v) below. (v) Any mediator and/or arbitrator administering proceeding pursuant to. this Agreement shall be selected from the roster of the Los Angeles, California office of the American Arbitration Association, hereinafter "die AAA," and must be approved by all involved parties, provided that if the.paxtes are unable to agree I n a mediator or arbitrator, as applicable, within ten (10) business days after a party has notified the other parties in writing that it desires mediation or . arbitration, as applicable, then the AAA's first selection of a'mediator or arbitrator shall govern and bind the parties. Mediation and/or arbitration pursuant to this Agreement shall be conducted pursuant to the AAA's "Commercial Dispute Resolution Procedures (Including Mediation and Arbitration Rules)" as amended and effective on July 1, 2002, or alternatively, such AAA Commercial Wdiation and/or Arbitration rules as may supercede. The AAA Optional Rules for 6 12283-0001\73W3v13.doc 9 Emergency Measures of Protection shall apply to proceedings pursuant to this Agreement. An award made pursuant to mediation and/or arbitration shall be final, binding and conclusive upon City and Business, those claiming under them, and their successors and assigns. No mediator and/or arbitrator(s) shall have the power to make any award inconsistent wid4 or contrary to the terms and provisions of.this Agreement. The costs and expenses of mediation and/or arbitration, including but not limited to full reasonable attorneys' fees of the prevailing party, shall be borne and paid by the party who does not prevail therein. If there is no prevailing party within the judgment of the mediator and/or arbitrator(s), costs and expenses, including but not limited to full reasonable attorneys' fees of each party, shall be borne and paid as awarded and/or directed in the decision of the mediator and/or arbitrator(s). A judgment on an award rendered by a mediator and/or arbitrators) may be entered in any court having jurisdiction as to the malpractice claim, or the issue as to this Agreement, in question. The submission to mediation and/or arbitration of any matter pursuant to this Section is hereby made a condition precedent to the institution of any action or law or in equity or an issue as to this Agreement. No party shall institute an action at law or in equity with respect to any matter subject to mediation and/or arbitration pursuant to this Section until after an arbitration award has. been rendered. Such an action shall be restricted solely to the subject matter of a'. challenge to such an award on the grounds, and shall only be pursued in the manner, permitted by California law. Such an action at law shall not be a trial de novo as to the merits, but shall be restricted to challenge of the award on such -grounds as are permitted by California law. Business's Initials: city is Initials: "NOTICE: BY INITIALING IN. THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY. INITIALING IN THE SPACE BELOW 'YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE INCLUDED IN THE FOREGOING ARBITRATION PROVISION. IF YOU . REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA. CODE- OF CIVIL PROCEDURE. YOUR AGREES TO THIS ARBITRATION PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL .ARBITRATION:' 69. 12283-MIt736663YI3.doc 10 Business's Initials: City's Initials: M. Ownership: Authority. Business hereby represents and warrants to City that HRA Investments, LLC has acquired the Property. The persons and entities executing this Agreement on behalf of Business represent and warrants that. Business has duly authorized this Agreement, that they are duly authorized to execute this Agreement on behalf of Business, and that . they have provided a copy of this Agreement to each owner (whether a person or a business entity) of an interest in Business. n. Successors and Assig cis. The obligations of the parties hereunder shall bind their successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this. Agreement to be executed and delivered as of the daze first above written. "BUSINESS": DESERT AUTOMOTIVE, LLC, a Delaware limited liability company ATTEST: Cynthia Hernandez Deputy City Clerk APPROVED AS TO FORM: 12283-0W1\736663v13.doc Richard Hack, President «CITY1. CITY OF INDIO, a municipal corporation By: Roy T. Ramirez City Manager Title: APPROVED: HRA IIWESTMENTS, LLC, a Delaware limited liability company .By Richard Hauke, 11 Richards, Watson & Gershon . Special counsel to City Rv 12283-00011736663v13-doe 12 President EXHIBIT "A" LEGAL DESCRIPTION OF LAND (Attached.) y i 12283-Ml\736663v13.doc 13 35 1 EDIT "B'-' PROJEC TED. ANNUAL SALES -.TAXES Rud 1 2 3 4 S 6 7 8 9 10 Year Projected $376,544 $464,009 $551,960 $568,518 $595,574 $603,141 $621,235 $639,972 $659,069 $678,941 Sales Taxes 7.3. 12283-0001\736663v13.doc 14 r- 3 ;.; RESOLUTION NO.6753 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA SETTING THE TIME AND PLACE FOR A PUBLIC HEARING REGARDING FINANCIAL ASSISTANCE TO CHAMPION CHEVROLET TO BE USED IN PART FOR RELOCATION OF ITS DEALERSHIP TO THE CITY OF INDIO The City Council of the City of Indio, California DOES HEREBY DETERMINE, ORDER AND RESOLVE as follows: Section 1. That it has determined to proceed with financial assistance to a relocating auto dealership pursuant to and by undertaking the process set out in Government Code Section 53084. Section 2. That the has received a market area report from ERA which indicates that the dealership which proposes to relocate and to which financial assistance would be given, Champion Chevrolet, is relocating within the same market area. Section 3. That the market area report will be made available to the public at the counter in City Hall, 100 Civic Center Mall, on November 14, 2003, which is at least 45 days before the public hearing. Section 4. That the City Council understands that sales taxes generated by the relocated dealership are subject to division with the City of La Quinta pursuant to Govt. Code Section 53084 and have approved a contract to send to La Quinta offering that division. Section 5. That the hour of 6:00 PM on the 30th day of December, 2003, and the Council Chamber at 150 Civic Center Mall, Indio, California, are hereby fixed as the time and place for the public hearing for evidence from any person(s) interested in, or objecting to, the proposed financial assistance. Section 6. That the City Clerk is hereby instructed to publish this Resolution, providing notice of said hearing to the public, once weekly, for at least three successive weeks prior to said hearing, in the Desert Sun Newspaper, as required by Govt. Code Section 6063. Section 7. That the staff is hereby instructed to mail this notice along with a copy of the report prepared by ERA to the City of La Quinta and to provide any and all other notice requested by La Quinta pursuant to that City's request for special notice. 74 PASSED, APPROVED and ADOPTED this 13th day of November, 2003, by the following vote: AYES: Bethel, Gilbert, Godfrey, Wilson NOES: NONE ABSENT: Fesmire MICHAEL H. WILSON, MAYOR ATTEST: CYOrHIA HERNANDEZ DEPUTY CITY CLERK, CMC 75. 3 ; 4 STAFF REPORT CITY COUNCIL MEETING_ November 13.92003. TO: 'Honorable Mayor and Members of the Indio City. Council Tf R Tom Ramire4 .City Manager FROM: Rudy Acosta, Director of RedevelopmenVEconomic Development I)ATE:. November 13, 2003 SUBJECT: Financial Assistance to. Desert. Automotive, LLC For Relocation of Champion Chevrolet and Champion Cadillac S Y: Desert Automotive LLC has requested that the. City of Indio consider providing .financial assistance for the development of the auto dealerships in the form of sales tax rebates: The assistance provided would be contained in two separate. agreements, one with Champion Chevrolet and the other with Champion Cadillac. Both dealerships{are currently located within the city of La Quinta on Highway 111 but are. experiencing -expansion constraints due to existing adjacent developments. Therefore, Desert Automotive .L.L.C., has approached the City of Indio with their proposal to take advantage of the I-10 Auto Mall location. In order to facilitate providing said assistance, the City of Indio must follow the strict process as required by Govermnent Code Section 53084 and outlined in the background. section of this staff report.. B ROUND:. The proposed financial assistance to the (stand alone) Chevrolet dealership would be -used to fund the construction of the public improvement portion of the development site located at Varner Road and Fiifieg way. This site is approximately 5.75 acres in area. Overall project improvements gill include civil and landscaping improvements as well as a 35,000 square foot structure to be used for sales, showroom and maintenance services, For the Cadillac dealership, the. assistance. would be used for the relocation of that dealership to a site within the I-10 Auto Mall Area and to fund the r 76 ITEM NO, 2 Staff Report Page 2 public improvements associated with the construction of a separate stand alone dealership on such site. Similarly, the project improvements will include civil and landscape improvements as well -as the sales, showroom and service facilities. The . proposals are consistent with the current use of the area as it relates to automobile sales in the I40 Auto Malldistrict and the proposed site is located in the City's Business. Park (BP) zoning designation. New cars are proposed to be sold at both .dealerships as the pirimary sales product with used car sales as a secondary product. If approved, the requested financial assistance is proposed to be distributed through a performance based sales tax sharing plan (Financial Assistance Agreement) prorated over a five (5) year period and commencing upon operation of the dealerships.. The assistance provided, to each dealership, will be capped at $900-492.00 and- rebatedF as follows; year one at 75%, year two at 50%, year. three at 30% and 5% and less in.the years beyond until the total cap -amount has-been reached. The Financial Assistance Agreements are attached for your information but cannot be scheduled for approval until after a notice public hearing- as explained below. The estimated dealership development cost (for the Chevrolet site) is $7.7 million; including land acquisition of approximately $2 million. For the Cadillac dealership, the developer is seeking a situ at the Auto Mall area within similar cost range and it is anticipated that the dealership facilities cost will be equal to the Chevrolet facilities. PROCESS OF APPROVAL: Because each dealership will essentially be relocating from the City of La Quints. and the City of Indio will be providing financial assistance at the new locations, such financial assistance must be approved after following the process as set forth in Govemment.Code Section 53084: Jn addition, .such financial assistance must be approved prior to January 1; 2004, after which time it will be prohibited by new. Govt. Code Section 53084 (Stats. 2003, ch.* 781). Finally, as also required by state law, the City has prepared a Market Area Study Report which concludes that the dealerships are relocating within the same market area. Because of that, the City must schedule a public hearing and provide the report to the public not less than 45 days before the hearing. The hearing is proposed for December 3 0, 1003 . The report will be made public tomorrow, November 14, 2603. 77 u 6 Staff 'Report Page 3 The Financial Assistance agreements will be scheduled for approval by the Council at the conclusion of"that public hearing. Notice, of the hear*mpmust be published and provided along, with the Market Study report to the City of La Quinta. Finally, and most importantly, in order to go forward., tonight the City Council must approve a contract'with the City of La Quinta which provides for sharing with that City the increase in the sales tax generated by the relocated dealership. A copy of that Tax Sharing Contract is attached. The sharing is calculated as follows: the amount of assistance provided is subtracted from the sales tax received and the balance, if any, is divided evenly with La Quinta, The amount given to La Quinta annually. will. not be more than that which was received in the year. before relocation, of the dealershipi, The q sharing agreement lasts for -a period of 10.- years- We have provided., that the Tax. Sharing Agreement- will be. of no force and effect if La. Quinta challenges this. relocation in any way. .The Tax Sharing Contract with La Quinta must be approved by a 4/5ths vote 'of the Council. If so approved, it must be delivered -to La Quinta tomorrow (Friday, November 14, 2003). Finally, the devel' staff are perfoimmig the re review, and developer and City required CEQA such findings will be before you on. December 3 01 2003, if not before.' STAFF'S RECOMMENDATION: Staff recommends the following; (1) Initiation of procedures pursuant. to Govt. - Code Section 53084, to enter into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the relocation and development of the Champion Chevrolet dealership from Highway I I I in the City of La Quinta to the 1-- 10 Auto Mall in Indio; receive and consider the market' study report from ERA consultants ; adopt resolution setting a public hearing tegarding such financial assistance on December 3 0, 2003 and providing public -notice thereof; adopt the, Tax Sharing Contract with La Quinta and instruct and authorize staff to transmit and negotiate such contract to that city tomorrow and, (2) Initiation of procedures pursuant to Govt. Code Section.53084 to enter into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the relocation and. development of the Champion Cadillac dealership from Highway 111 in the City of La Quinta to the 1- 10 Auto Mall in Indio; receive and 78 3 Staff Report Page 4 consider -the market study report for ERA consultants; adopt resolution setting public hearing regarding such -financial assistance on December 30, 2003 and providing public notice thereof; adopt form of contract for tax. sharing with City of La Quinta and instruct and authorize staff to transmit and negotiate such contracts PAOPOSED MOTION. I move for approval of and authorization for; (1) Initiation of procedures pursuant to Govt. Code Section 53084, to enter into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the relocation and development of the Champion Chevrolet idealership from ffighway 11.1 n the City of La Quinta to- the I-10. Auto Mall in Indio; receive and consider the market study report from ERA consultants ; adopt resolution setting a public hearing regarding such financial assistance on December 30, 2003 and providing public notice thereof; adopt Tax Sharing Contract with La Quinta and instruct and authorize staff to transmit and negotiate such eontract to that City; and, (2) Initiations of procedures pursuant to Govt. Code Section 53084 to` enter. into an agreement with Desert Automotive, L.L.C. to provide financial assistance for the r6locatiollp and. development of the Champion Cadillac dealership from Hig.hwiy 111 in the City of La Quinta to the 1-10 Auto Mall in Indio; receive and consider the market study report for ERA consultants; adopt resolution setting public hearing regarding such financial assistance on December 30, 2003 ..arid providing public notice thereof; adopt Tax Sharing Contract with City of La Qninta and instruct and authorize staff to transmit and negotiate such contract to .that City. 79 TAX SHARING CONTRACT This contract is made this day of , 2003, by and between the City of Indio ("Indio') and the City of La Quinta ("La Quinta') in compliance with Govt. Code Section 53084. Recitals A. The purpose of this contract is to apportion the sales tax generated from the relocated Champion Chevrolet dealership ("Dealership') between Indio and La Quinta after the relocation of such Dealership as required by Govt. Code Section 53084 as it was in effect on December 3 1 ; 2003. B.This Conract shall be executed -by the City of LaQuinta on or before December 15; 2003. Now, therefore, the parties agree as follows. 1. Recitals. The Recitals set out above are true and correct. 2. Definitions: As used herein, the following words shall have the following meanings. a. Fiscal Year. "Fiscal Year" shall mean each city's fiscal year, which commences on July 1 and ends on June 30. b. Qualified Business. "Qualified Business" shall mean the operation of the Dealership. c. Quarter. "Quarter" shall mean any one of the threw (3-).*month periods commencing July 1, October 1, January 1 or April 1. d. "Relocation." "Relocation" shall mean the date on which Dealership reopens to the public and commences the -sale of vehicles after physically removing its operations from La Quinta and reopening in Indio. It shall not include such timeas both locations remain open. e. Sales Tax. "Sales Tax" means, for each Quarter during the term of the Indio's tax sharing obligations hereunder, that portion of taxes received by Indio from the imposition of the Bradley -Burns Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue &Taxation Code) directly from the operation of the Qualified Business on the Property, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. For purposes of this Agreement, the term "Sales Tax" shall not include the State Board of Equalization's administrative and processing fee attributable, to Indio's portion of such taxes (calculated at the same t percentage of such taxes as applies citywide). In addition, "Sales Tax" shall not be deemed received by Indio until the Indio is able to confirm receipt of such taxes from the State Board of Equalization. If California state law changes during the term of this Agreement so as to materially alter the method by which sales tax revenues are allocated among jurisdictions, then the parties' shall negotiate in good faith modifications to this Agreement to carry out its intended economic costs and benefits to each party. 3. Term: - The term of this contract shall commence on the date of Relocation; the fiscal year in which Relocation occurs shall be the first fiscal year hereof and this contract thereafter shall continue for a total of 10 fiscal years, after* which time it shall terminate and be of no further, force and effect. (By. -way only of example, if the contract commences on July 1, 2005, it will terminate on June 30, 2015). The contract may be extended on the same terms and conditions by the written agreement of both parties. The contract shall terminate immediately, before the end and regardless of the 10 year, term, if the Dealership- closes or otherwise ceases to sell vehicles to the public. 4. Determination of Tax Sharin a. Amount of.Sales Tax. In June of each fiscal year, and annually thereafter for the term of this contract; commencing with the fiscal .year in which the Relocation occurs, Indio shall determine the amount of Sales Tax. b. Financial Assistance Amount. Indio then shall subtract from the amount of Sales Tax the amount of financial assistance provided to the Dealership pursuant to the Financial Assistance Agreement between Indio and Dealership dated December 30, 2003 for that fiscal year. (the "Financial Assistance Amount'l. C. Sales Tax Share. The Sales Tax remaining after the calculation in (A) shall be divided evenly between Indio and La Quinta. The `. amount to be paid to La Quinta's share shall be compared to the amount of sales tax that La Quinta received from the Dealership in the 2003-2004 year (the fiscal year prior to*Relocation) (the "base sales tax.') La Quints shall receive a share of the Sales Tax which is the same as or less than the base sales tax (the "Sales Tax Share'). Prior to the first fiscal year in which the Sales Tax Share will be determined, La Quinta shall provide to Indio the amount of base sales tax for the fiscal year prior to Relocation and supporting documentation therefore. d. Payment of the Sales Tax Share. The Sales Tax Share shall be paid to La Quinta promptly and shall be accompanied by a summary of the formula used to reach the amount paid. 81. 360 e. Notwithstanding anything herein to -the contrary, in no event shall Indio be required to pay La Quinta any amount from any funds other than from Sales Tax or any amount of any kind in any fiscal year in which no Sales Taxis received or the amount of the Sales Tax minus the Financial Assistance Amount is zero (0 of less-; 6. Miscellaneous. a. Headings and Captions. The headings and captions in this contract are for convenience only and shall not be referred to in the interpretation of this Agreement. b. Waiver. The failure of any Party to exercise any power given it hereunder or to: insist upon strict compliance with the terms of this contract shall not constitute a waiver of that Party's right to demand exact compliance with the terms hereof. Waiver by a Party of any particular default by the other shall not affect or impair its rights with respect to any subsequent defaults of the same or of a different kind; nor shall any delay or omission by a Party to exercise any rights arising from any default affect or impair its right as to such default or any future. default. Any consent or waiver by a party with respect to a breach by the other party, whether express or implied, shall not constitute consent to, waiver of, or excuse for, any other different or subsequent breach. Failure by a party to enforce a provision of this contract at any time sha11 not be construed as a waiver of that provision. C. Severance. Should any part of this. Agreement be declared invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the Parties. If such part is determined to be invalid and/or unenforceable any remainder of such provision, and of the entire Agreement, shall remain in full force and effect. d. Entire Agreement. This contract contains the entire agreement between the Parties. Any and all verbal or written agreements made prior to the date of this Agreement are superseded by this Agreement and shall have no further effect. No modification or change to the terms of this contract will be binding on a Party unless in writing and signed by an authorized representative of that Party. Me f. Authorization. The persons executing this Agreement on. behalf of the Parties hereby warrant that they have the authority and are duly authorized and are duly authorized to execute this Agreement on behalf of the Party they purport to represent and can bind that Party to t this Agreement .. F IN Witness. Whereof, the parties have executed this Agreement effective as of 2003. 83 362 RESOLUTION NO: - RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA SETTING THE TIME AND PLACE FOR A PUBLIC HEARING REGARDING FINANCIAL ASSISTANCE TO CHAMPION CHEVROLET TO BE USED IN PART FOR RELOCATIOiV OF ITS DEALERS:HIP TO THE CITY OF INDIO The City Council of the City of Indio, California DOES HEREBY DETERMINE, ORDER AND RESOLVE as follows: Section 1. That it has determined to proceed with financial assistance to a relocating auto dealership pursuant to and by undertaking. the process set out in Government Code Section 53084; and Section 2. That the has received a market area report from ERA which indicates that the dealership which. proposes to relocate and to which financial assistance would be given, Champion Chevrolet, is relocating within the same market area Section 3. That the market -area report will -be made available to the public at the counter in. City Hall, 100 Civic Center Mall, on November 14, 2003, which is at least 45 days before the public hearing; and Section 4. That the City Council understands that sales taxes generated by the relocated dealership are subject to division with the City of La Quinta pursuant to Govt. Code Section 53084 and have approved a contract to send to La Quinta offering that division; Section 5. That the hour of 6:00 PM on the 30th19th day of December, 2003, and the Council Chamber at 150 Civic Center Mall, Indio, California, are hereby fixed as the time.and place for the public hearing o evidence from -any person(s) interested in, or objecting to, the proposed vacation of said street/right-of-way. Section 6.. 'That the City.Clerk is hereby instructed to publish this Resolution, providing notice of said hearing to the public, once -weekly, for at least three successive weeks prior to said hearing, in the Desert Sun Newspaper, as required by Govt. Code Section 6063. Section 7. That the staff is hereby instructed to mail this notice along with a copy of the report prepared. by ERA to the City of La Quinta. and to provide any and all other notice requested by La Quinta pursuant to that City's request for'special notice; PASSED, APPROVED and ADOPTED this 13thst day of November, 2003, by the following vote: 0 363 85 3E4 FINANCIAL ASSISTANCE AGREEMENT. WITH CHAMPION GHEVROLET This FINANCIAL ASSISTANCE AGREEMENT (the "Agreement') is made and entered into as of the 30'h day of December, 2003, by and between the CITY of INDIO., a municipal corporation (the "City'), and DESERT AUTOMOTIVE, LLC, a Delaware limited liability company ("Business'). RECITALS: A.. HRA Investments, LLC has acquired the land described on Exhibit "A" attached hereto and all improvements thereon (collectively, the "Property") and Business intends to relocate from Highway 111 in La Quinta and thereafter operate on the Property its Champion Chevrolet dealership on the Property. The reason for such relocation is to be able to expand the dealership to a location next to a major interstate and have sufficient room for a showroom, maintenance, storage and future expansion. This relocation will utilize, in part, financial assistance from the City as set out in this Agreement as set out here. B. The City has agreed to provide contingent financial assistance to the Business on the terms and subject to the. conditions hereinafter set forth. C. The City has found that the use and operation of the Property proposed by Business: (i) promotes the long-term employment of residents of the City and will significantly contribute to the maintenance, growth, and expansion of the base of the City; (u) constitutes -a valid exercise of the police powers of the City and serves public purposes in which the City has, peculiar and unique interests; and (iii)-otherwise substantially relates to the municipal affairs of the City. COVENANTS: Based upon the foregoing Recitals and for good and valuable consideration, the. sufficiency of.which is acknowledged by both parties, the City and Business hereby agree as, follows!. . 1: Certain Defined Terms. As used in this Agreement, the following terms shall have the meanings hereinafter set forth: a. Fiscal Year. "Fiscal Year" shall mean the City's fiscal year, which -commences on July 1 and ends on June 30. b. Qualified Business. - "Qualified Business" shall mean the operation of a first-class Chevrolet dealership by Business, 12283-0001\736663v13.doc 1 ' 365 C. Quarter. "Quarter" shall mean any one of the throe (3) month periods commencing July 1, October 1, January 1 or April 1. d. Sales Tax, "Sales Tax" means, for each Quarter during the term of the City's payment obligations hereunder, that portion of taxes received by the City from the imposition of the Bradley -Burns Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue & Taxation Code) from the operation of the Qualified Business on the Property, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. ' For purposes of this. Agreement, the term "Sales Tax" shall not include: (i) any portion of taxes received by the City from the operation of any of the Property that the City may be required to pay, transfer, assign, or allocate to any other entity or entities by virtue of any law now or hereafter existing, or by virtue of any agreement entered into between City and.any other governmental entity under California Government Code Section 53084, specifically included that contract offered to the City of La Quinta herewith as required by than state law; (ii) the State Board of Equalization's administrative and processing fee attributable to the City's portion of such taxes (calculated at the same percentage of such taxes as applies city-wide); and (iii) the sum of $500.00 per Quarter (representing a ..stipulated payment for the City's estimated Quarterly direct and indirect costs -of administering this Agreement). In addition, "Sales Tax" shall not be considered to have been received by the City until the City is able to confirm receipt of such taxes from the State Board of Equalization. If California state law- changes during the term of this Agreement so as to materially alter the method by which sales tax revenues are allocated a o ig j irisdictioiis then tho parties s all negotiate mi g faith modifications to this Agreement to carry out its intended economic costs and. benefits to. each party. 2. Conditions Precedent. Satisfaction (or written waiver) of each of the following are conditions to the parties' obligations under this Agreement: on or before (i) City's confirmation of HRA Investments, LLC's ownership of the Property, as shown by a copy of a title policy delivered to City, and delivery to City of a copy of the Lease or other documents) by which Business is given rights to operate the Qualified Business on the Property; (H) the recordation in the Office of the County Recorder of Riverside County, California of "conditions, covenants and restrictions" ("CC&Rs') duly executed and acknowledged by Business containing the provisions of Sections 6(b)- and (d), that are not subordinate to any lien (as shown by a current title policy in favor of City; (iii) Business's obtaining financing for the construction of the improvements necessary for the Qualified Bus*mess2as shown by copies of executed financing documents delivered to City; (iv) the City's receipt of a copy of the insurance ( and .additional insured endorsement) described in Section 6e below; and (v) on or before December 31, 2003, the City's compliance ,with California Government Code Section 53084 in connection with the transactions described herein. 8'7 1 2283-000.1\73b663v13.doc 2 '" 3. Contin e_g nt Pa3ments by City. Inconsideration of Business's compllance with Section 6 below in eachfull or partial Fiscal Year during the Term (as defined in Section 4 below); the.City shall make quarterly payments to Business in an amount equal to the applicable percentages of the total Sales Tax generated by the Qualified Business and received by the City during Fiscal Year as set forth in the following table (as adjusted by the last paragraph of this Section 3): Each Fiscal Fiscal Year 1 2 3 4 5 Year Thereafter Percent .. - , . . Payable to 75% 50%° 30% 21.5% 16.5% 16.5% Business The above percentages shall be increased or decreased, -as. applicable, by a percentage equal to: (a) the amount by. which actual sales taxes from the operation of the Qualified Business in a particular Quarter are greater or less than the projected sales taxes set. forth in Exhibit "B" attached hereto, divided by (b) the projected sales taxes. for such Quarter, determined by dividing by four (4) the poj ected sales tax for the Fiscal Year:_ containing the applicable Quarter that is set forth. on Exhibit "B" (such that in the event actual sales taxes are greater than projected taxable sales for a Quarter, the percentage in the above, table applicable to that Quarter shall be proportionately increased for such Quarter, and in the event actual sales taxes for a Quarter are less than projected sales. taxes for. that Quarter; the percentage in the above table applicable to that Quarter shall be proportionately decreased. for that Quarter); provided,. however, that each percentage increase or decrease in any percentages set forth in the above table shall not exceed ten percent (10%} 4: Term. This Agreement shall commence on December 31, 2003, .after approval -at the December 30; �2003, public hearing and, unless sooner termivated pursuant to Section 7 herein, shall expire one the dateon which the City has fully paid (without interest) to Business the sum of NINE HUNDRED THOUSAND FOUR HUNDRED NINETY-TWO DOLLARS ($9003,492.00) (the. "Terms") or such date as Business relocates from the City. 5. Payment Procedures. a. Within thirty (30) days after the end of each Quarter during the* Term of this Agreement commencing with the first Quarter in which the Qualified Business opens for business to the general public as required by Section 6, Business shall submit to the City's Finance Director, in writing, a. payment request for Business's share of Sales Tax paid during such Quarter. The request* shall include copies of all reports which have been submitted by Business to the State Board of Equalization for such Quarter, together with evidence available to Business regarding the sales taxes actually paid to the State Board of Equalization by or on behalf of the Qualified Business for such Quarter (e.g., cancelled checks). M i 12283-M01\73i%63v13.doc 3 3 6 '� b: Following submission by Business of its completed payment request, the City's -Director of Finance (or designee) shall determine whether the payment request is complete and accurate, and if the determination of the. Director (or designee) is that the request is complete and accurate, the Director (or designee) shall approve or disapprove (subject to the provisions below) such request. If the payment request contains the reports submitted by Business to the State Board of Equalization for the applicable Quarter and cancelled checks evidencing payment of sales tax to the State Board of Equalization for the applicable Quarter, and if all, reports required from Business by the State- Board -of Equalization relating to sales tax for that Quarter shall have been submitted to the State Board of.Equalization.(with a concurrent copy delivered to the City), then the payment request shall be deemed approved (unless there is an error in the payment request). Any disapproval shall state in writing the reasons for disapproval and the. changes -or additional information or documeutato�n which the City deems necessary to comply with Business's request. In the event of a disapproval by the City, Business shall revise " or supplement the request, and shall resubmit same to the City's Director of Finance as soon as is possible after receipt of the notice of disapproval. Thereafter, the City, through its Director of Finance, shall promptly review, confirm;' and if determined to be complete and accurate, shall approve the amount of the Sales Tax, if any,. due to be paid to Business for the applicable Quarter. The review of the request. for completeness of documentation and information shall be completed by the City within fifteen (15) business. days following the receipt of the request. The review of the request for determination of accuracy may be based upon corroborating inforatoni - provided to the City by either the State Board -of Equalization and/or any sales tax consultant retained by the City.. C. Nothing contained in this Agreement shall obligate or otherwise commit the City to pay the portion of the Sales Tax determined by the City to be due and payable to Business unless and. until the :City receives verification satisfactory to the City that it has received the Sales Tax attributable to sales from the. Qualified Business for the Quarterfor which'a request has, been made and approved by the City. d. Payment of the amount determined by the City to be owing to Business for _ each Quarter during the Term of this Agreement shall be made by the City t ' within fifteen (15) days after the City has approved the payment request and has received verification satisfactory to it that it has received the Sales Tax attributable to sale from the Qualified Business for the Quarter for which a request has been made and approved by the City. 6. Covenants and Representations of Business. During the Terra. of this Agreement, Business hereby covenants and agrees with the City as follows:, 89 12283-OW 1\736663 v 13.doc a. Business shall complete construction of all improvements for the Qualified Business and shall open the Qualified Business on the Property to the general public by June 30, 2005, and Business shall thereafter continuously operate the Qualified Business on the Property; b. Business shall maintain and repair or cause to be maintained and repaired the improvements and landscaping on the Property in good order, and in the condition (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws. In this regard, Business shall further - prevent the accumulation of any waste materials, rubbish, graffiti, weeds, or debris on the Property and shall not permit any unlawful use or public . or private nuisance to occur on the Property. C. Business shall not oppose the formation of a redevelopment project area adopted in accordance with applicable law which includes the Property, or the amendment of a redevelopment plan adopted in accordance with applicable law which annexes the Property into a redevelopment project area. d. In its operation of the Property'"and the Qualified. Business, Business agrees not to violate applicable laws regarding discrimination against any person or class of persons by reason of gender, marital status, race, color, creed, mental or, physical disability, religion, age; ancestry, or national origin or otherwise. e:. Business shall defend (with counsel reasonably acceptable to City), indemnify and hold City and its councilpersons, officers, agents and employees. (collectively, the "Indemnified Parties') harmless from and. against all losses, ,costs and expenses (including, without limitation, reasonable attorneys' fees or counsel acceptable to the City and costs), damages. (including, without limitation, consequential damages), claims and liabilities and from the activities of Business, its members, officers, employees, agents, contractors, invitees and any third parties on the Property, but only to the extent not caused by the acts, negligence or willful misconduct of the Indemnified Parties. The obligations of Business under this Section 6e shall survive the expiration or any earlier termination, as applicable, of this Agreement. Business shall obtain contractual liability insurance to cover Business's obligations under this Section 6e and Business shall cause City to be required as an additional ' insured on such insurance. f. Promptly after the opening of the Qualified Business on the Property; Business shall join the "I-10 Auto Mall Association" and shall remain a member thereof during the Term of this Agreement so long after the expiration or earlier termination of this Agreement as the Qualified Business operates on the Property. This Section 6g shall survive the 00 12283-OW1\736663v13.doc 5 expiration and any earlier termination of this Agreement and may be enforced by the 4I-10 Auto Mall Association". g. The sole business of the entity operating the Qualified Business shall be sales, leasing and servicing of motor vehicles and other activities relating _ thereto. 7. Defaults and Termination. Failure by City to make a payment to Business that is required to be made by City to Business under this Agreement shall constitute a default by City under this Agreement. Notwithstanding .any other provision set forth in this Agreement to the contrary, this Agreement and any obligation of the City to make payments to Business hereunder shall terminate without further notice or demand, at the City's option, upon the occurfenoe of the following events of default: a. Failure in the due, prompt, and complete observance or performance of any covenant or obligation set forth in this Agreement for a period of thirty (30) days after written notice to Bus Hi ms.from the City Manager, specifying the nature thereof; provided that Business shall not be in default under this subparagraph if the failure to observe or perform the covenant or obligation in question is curable but is of such a nature that it is incapable of being cured with reasonable diligenoe within that thirty (3.0) day period and. Bus Spiess. commenoes.such cure -within that thirty (30) day period and diligently and. continuously pursue$ the same to completion: b..f- Any of the representations or warranties by Business to the City contained in Section 9m below proves to .have been materially false or misleading when made. 8.. Certain Remedies. City's. sole. and exclusive remedy for a default. by Business under Section 7a. or 7b shall be termination of this Agreement pursuant to Section 7 above and/or injunctive relief, except that, in the event of a default by Business under Section 6(a),consisting of Business's failure to continuously operate -the Qualified Business during the Term*.of this Agreement, then if Business or any owner of Business also opens a Chevrolet automobile dealership outside of the City but within the same market area as the Qualified Business, then Business shall pay to City, and City shall be entitled to recover from Business, all payments made by City to Business under this Agreement made prior to the opening by Business of such Chevrolet automobile dealership within the same market as the Qualified Business (collectively, the "Prior Payments'): Business hereby stipulates and agrees that the amount of the Prior Payments are a reasonable estimate of the damages and costs City shall. incur by *reason of the, events described in the preceding sentence, and that such damages and costs are, by their nature, difficult and impractical to calculate and determine. . 9: General Provisions. a. General Provisions. This.. Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes 91. 12283-MI\736663v13.dac 6 all prior agreements and understandings of the parties with respect to the subject matter hereof. This Agreement may not be modified, amended, supplemented, or otherwise changed, except by a writing executed by both parties hereto. b. Waiver. No failure or delay by any party in the exercise of any right hereunder shall constitute a waiver thereof, nor shall any single or partial exercise of any such right preclude other or further exercise thereof, or any other right. C.� Captions. Section headings used in this Agreement are for convenienoe of reference only and shall not. affect the constriction of any provisions of this Agreement. d.. Assignment. Except as expressly provided herein, Business shall not assign any of the rights or obligations under this Agreement without the prior written consent of City in its sole and absolute discretion. Business may assign this Agreement to an entity at least fifty one percent (51 %) of the direct or indirect ownership interests of which are owned by Business (or by the owners of Business), or to an unaffiliated third party purchaser of the Qualified Business which has a good reputation and significant J experience in operating a Chevrolet automobile. dealership (as determined in good faith by City), provided: (i) Business gives City at least ten (10) business days' prior written notice of the assignment with reasonable evidence of the required ownership (or reputation and experience, as applicable) and a copy of the assignment document(s); and (ii) the assignee assumes all obligations of Business under, this Agreement. In no �._ _ ovent. shall any assignment relieve Business from its obligafiors under this Agreement. .e. Calculation of Time. Except as may otherwise be provided, wherever this .Agreement states. a period of time and number of days, it shall be construed to mean calendar days; provided, however, that when any period of time so stated would end upon a Saturday, Sunday, or legal holiday, such period shall be construed to end upon the next day following which is not a Saturday, Sunday or legal holiday. f. Counterparts. This Agreement may be executed in two or more counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. g. Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of California and for all purposes shall be governed by and construed in accordance with the laws: ofthe State of California. 92 12283-0001\736663v13.doc 7 h Authority. Each individual executing this Agreement on behalf of Business represents andwairants that he/she is duly authorized to execute and deliver this Agreement on behalf of Business. i. Inability to Perform. Except as may be otherwise provided herein, performance by any party hereunder shall not be -deemed to be in default, and all performance. and other dates specified in this Agreement shall be _. extended, where the party seeking the extension has acted diligently and delays or defaults are due to events beyond the reasonable control of the party (financial inability excepted) such as but not limited to war; insurrection; acts of terrorism; riots; floods; earthquakes; fires; casualties; acts of nature; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions; litigation that directly prevents performance by the Business or the City; weather; and other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform that are not excluded above (collectively, "Enforced Delays'); provided, however, that the party claiming the extension notify the other party in writing of the nature of the matter. constituting the Enforced Delay within thirty (30) days after the party claiming the extension has notice of the occurrence of the Enforced Delay. Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall be for the period of time reasonable in light of the Enforced Delay and shall commence to run from -� the time of the commencement of the cause. j . Notices. Notices given .or to be given by City or Business to the other party hereunder may be personally served or may be served by certified return -receipt mail addressed to the appropriate address irexeiaaiter set forth or to such other address as such party may hereafter designate by written notice. If served by certified mail, service will be considered completed and binding on the party served on the date set forth in the certification receipt. To City : City of Indio 1.00 Civic Center Mall Indio, California 92202 Attn: City Manager To Business: Desert Automotive LLC Wo Champion Cadillac Chevrolet 78-611 Highway 111 La Quinta, CA 92253 93 12283-OW1\736663v13.doc 8 3 7 Attn: Richard Hauke, President With a cop�to: Planet Automotive Group, Inca 2333 Ponce de Leon Blvd., Ste. 600 Coral Gables, Florida 33134 . Attn: President and Chief Financial Officer k. Attornevs' Fees and Costs. If a dispute arises under or in connection with this Agreement that results in an arbitration (including, without limitation, the enforcement or interpretation of this Agreement), the prevailing party (as determined by the arbitrators) shall be entitled to recover its reasonable attorneys' fees and costs incurred in such arbitration from,the other party. 1. Alternative Dispute Resolution. If a dispute arises regarding the making, formation, interpretation, or performance of this Agreement, City and Business agree to adhere to the dispute resolution protocol as delineated :and explained herein. (i) NEGOTIATION: City and Business will make a good faith effort to resolve any claim or issues as to this Agreement, through negotiation. The parties shall meet at the offices of the City to negotiate within ten (10) days after any party sends a notice to the other referring to this Section. (ii) MEDIATION: If City 'and Business cannot resolve! such a claim or . issue as to this Agreement, through negotiation by the. date that is fifteen (15) business days after the date of the notice described in clause (a) above, then that claim or issue shall be the subject of mediation, administered by a mediator. " (iii) ARBITRATION: Should mediation fail to resolve such a claim or issue as to this Agreement, then that claim or issue shall be the subject of arbitration administered by an arbitrator or multiple arbitrators sitting on a panel. (iv) LITIGATION (Limited): City or Business may pursue an action at law or in- equity with respect to a claim or issue as to this Agreement that has been subject to mediation and arbitration only as specified in clause (v) below.. (v) Any mediator and/or arbitrator administering proceeding pursuant to this Agreement shall be selected from the roster of the Los Angeles, California office of the American Arbitration Association, hereinafter "the AAA," and must be approved by all involved parties, provided that if the parties are unable to agree on a mediator or arbitrator, as applicable, within ten (10) business days after a party has notified the other parties in writing that it desires mediation or arbitration, as applicable, then the AAA's first selection of a mediator or arbitrator shall govern and bind the parties. Mediation and/or arbitration pursuant to this Agreement shall be conducted pursuant to the AAA's "Commercial Dispute Resolution Procedures (Including Mediation and Arbitration Rules)" as amended and effective on July 1, 2002, or alternatively, such AAA Commercial Mediation and/or Arbitration rules as may supercede. - The AAA Optional Rules for 12283-0001\736663v 13.doc 9 Emergency Measures of Protection shall apply to proceedings pursuant to this Agreement. An award made pursuant to mediation and/or arbitration shall be final, binding and conclusive upon City and Business, those claiming under them, and their successors and assigns. No mediator and/or arbitrator(s) shall have the power to make any award inconsistent with, or contrary to the terms and provisions of this Agreement. The costs and expenses of mediation and/or arbitration, including but not limited -to full reasonable attorneys' fees of the prevailing party, shall be borne and paid by the party who does not prevail therein. If there is no prevailing party within the judgment of the mediator and/or arbitrator(s), costs and expenses, including but not limited to full reasonable attorneys' fees of each party, shall be borne and paid as awarded and/or directed in the decision of the mediator and/or arbitrator(s). A judgment on an award rendered by a mediator and/or arbitrator(s) may be entered in any court having jurisdiction as to the malpractice claim, or'the issue as to this Agreement, in. question. The submission to mediation and/or arbitration of any matter pursuant to this Section is hereby made a condition precedent to the institution of any action or law or in equity or an issue as to this Agreement. No party shall institute : an action at law or in equity with respect to any matter subject to mediation and/or. arbitration pursuant to this Section until after an arbitration award has been rendered. Such an action -shall be restricted solely to the subject matter of a challenge to such an award on the grounds, and shall only be. pursued in the manner, permitted by California law. Such an action at law shall not be a trial de novo as to the merits, but shall be restricted to- challenge of the award on such grounds as are permitted by California law. Business's Initials: City Initials: `210TICE: BY INITIALING IN THE SPACE BELOW -YOU ARE .AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION' PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE 'THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS. ARE INCLUDED IN. THE FOREGOING ARBITRATION PROVISION. IF YOU REFUSE TO • SUBMIT TO ARBITRATION AFTER- AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF • CIVIL PROCEDURE. YOUR AGREEMENT TO THIS ARBITRATION { - PROVISION IS VOLUNTARY." "WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF THE MATTERS INCLUDED IN THE `ARBITRATION OF DISPUTES' PROVISION TO NEUTRAL ARBITRATION." 95 12283-0001\736663v13.doc 10 374 Business's Initials: City's Initials: In. Ownership; Authority. Business hereby represents and warrants to City that HRA Investments, LLC has acquired the Property. The persons and entities executing this Agreement on behalf of Business represent and warrants that Business has duly authorized this Agreement, that they. are duly authorized to execute this Agreement on behalf of Business, and that they have provided a copy of this Agreement to each owner (whether a . person or a business entity) of an interest in Business. n. Successors and Ass i ng_s. The obligations of the parties hereunder shall bind their successors and assigns. IN WITNESS. WHEREOF, the parties hereto have caused this Agreement to be executed' and delivered as of the date first above written. "BUSINESS" DESERT AUTOMOTIVE, LLC, a Delaware limited liability company Richard Hauke, President CITY -OF* RgDIO, a municipal corporation 0 Title: Roy T. Ramirez City Manager 96 12283-0001\736663v13.doc 11 ATTEST: - APPROVED: Cynthia Hernandez a Delaware limited liability company Deputy, City Clerk By APPROVED AS TO FORM: Richard Hauke ... President By: Deputy City Attorney 9'7 I2283-.00011736663vl3.doc 12 EXIMIT "A" LEGAL DESCRIPTION OF.LAND.- . (Attached.) 98 12283-OQO1\7 W303.doc 13 EX MIT "B" PROJECTED ANNUAL SALES. TAXES Fiscal 1 2 3 4 5 6 7 8 9 10 Year Projected $476,694 $499,067 $556,251 $605,194 $656,011 $718,870 $773,811 $810,920 $850,460 $892,564 Sales Taxes 99 12283-0001\736663vl3Am 14 V, RESOLUTION NO.6754 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF INDIO, CALIFORNIA SETTING THE TIME AND PLACE FOR A PUBLIC HEARING REGARDING FINANCIAL ASSISTANCE TO CHAMPION CADILLAC TO BE USED IN PART FOR RELOCATION OF ITS DEALERSHIP TO THE CITY OF INDIO The City Council of the City of Indio, Califomia DOES HEREBY DETERMINE, ORDER AND RESOLVE as follows: Section 1. That it has determined to proceed with financial assistance to a relocating auto dealership pursuant to and by undertaking the process set out in Government Code Section 53084. Section 2. That the has received a market area report from ERA which indicates that the dealership which proposes to relocate and to which financial assistance would be given, Champion Cadillac, is relocating within the same market area. Section 3. That the market area report will be made available to the public at the counter in City Hall, 100 Civic Center Mall, on November 14, 2003, which is at least 45 days before the public hearing. Section 4. That the City Council understands that sales taxes generated by the relocated dealership are subject to division with the City of La Quinta pursuant to Govt. Code Section 53084 and have approved a contract to send to La Quinta offering that division. Section 5. That the hour of 6:00 PM -on the 30th day of December, 2003, in the Council Chamber at 150 Civic Center Mall, Indio, California, are hereby fixed as the time and place for the public hearing for evidence from any person(s) interested in, or objecting to, the proposed financial assistance. Section 6. That the City Clerk is hereby instructed to publish this Resolution, providing notice of said hearing to the public, once weekly,, for at least three successive weeks prior to said hearing, in the Desert Sun Newspaper, as required by Govt. Code Section 6063. Section 7. That the staff is hereby instructed to mail this notice along with a copy of the report prepared by ERA to the City of La Quinta and to provide any and all other notice requested by La Quinta pursuant to that City's request for special notice. l 0 379 PASSED, APPROVED and ADOPTED this 13thst day of November, 2003, by the following vote: AYES: Bethel, Gilbert, Godfrey, Wilson NOES: NONE ABSENT: Fesmire MICHAEL H. WILSON, MAYOR ATTEST: � 4'4�x�'4 'dYATHIA HERNANDEZ DEPUTY CITY CLERK, CMGO 1n1. 380 TAX SHARING CONTRACT This contract is made this day of , 2003) by and between the City of Indio ("Indio") and the City of La Quinta ("La Quinta") in compliance with Govt. Code Section 53084. Recitals A. The purpose of this contract is to apportion the sales tax generated from the relocated Champion Chevrolet dealership ("Dealership") between Indio and La Quinta after the relocation of such Dealership as required by Govt. Code Section 53084 as it was in effect on December 31, 2003. B. This Ge Fac4fnnIrW shall be executed by the City of La Quinta on or before December 15, 2003. Now, therefore, the parties agree as follows. 1. Recitals. The Recitals set out above are true and correct. 2. Definitions: As used herein, the following words shall have the following meanings. a. Fiscal Year. "Fiscal Year" shall mean each city's fiscal year, which commences on July 1 and ends on June 30. b. Qualified Business. "Qualified Business" shall mean the operation of the Dealership. C. Quarter. "Quarter" shall mean any one of the three (3) month periods commencing July 1, October 1, January 1 or April 1. d. "Relocation." "Relocation" shall mean the date on which Dealership reopens to the public and commences the sale of vehicles after physically removing its operations from La Quinta and reopening in Indio. It shall e. Sales Tax. "Sales Tax" means, for each Quarter during the term of the Indio's tax sharing obligations hereunder, that portion of taxes received by Indio from the imposition of the Bradley -Burns Uniform Local Sales and Use Tax Law (commencing with Section 7200 of the California Revenue & Taxation Code) directly from the operation of the Qualified Business on the Pr-epeftAgrelocation site, prorated in the first and last Quarters during the term of this Agreement based upon the number of days in such partial Quarters. DurinZ the fiscal adjustment period (as defined by Cal. Rev. & Tax & 97.68(b)(1)), Sales Tax shall also include the amount of grQiy tax revenue allocated to Indio from the Riverside County Sales and Use Tax Compensation Fund or the 381 'versWe County Fdua Tonal Revenive Augmentation Fund pursuant to Cal. Rev. Tax Code 8 97.68 whi h is equal to the reduced sales and use tax revenue attr*hutahle to the n ialifi d Rusin ss that will h replaced by an equal amount of property tax under section 97,68. For purposes of this Agreement, the term "Sales Tax" shall not include the State Board of Equalization's administrative and processing fee attributable to Indio's portion of such taxes (calculated at the same percentage of such taxes as applies citywide)- In addition, "Sales Tax" shall not be deemed received by Indio until the Indio is able to confirm receipt of such taxes from the State Board of Equalization. If California state law changes during the term of this Agreement so as to materially alter the method by which sales tax revenues are allocated among jurisdictions, then the parties shall negotiate in good faith modifications to this Agreement to carry out its intended economic costs and benefits to each party. 'Ell lkarll�rll L- M11 I EI' I go' 3. Term: The term of this contract shall commence on the July 13t imm dia ely foliowin the date of Relocation; the fiscal year inimmediately following the, date which Relocation occurs shall be the first fiscal year hereof and this contract thereafter shall continue for a total of 10 fiscal years following Relocation, after which time it shall terminate and be of no further force and effect. (By way only of example, if the et eef mieneesRelocation occurs on ecemher 31. 2004 then the Contract will commence on July 1, 2005, and it will terminate on June 30, 2015). The contract may be extended on the same terms and conditions by the written agreement of both parties. mdnat„ ed fe f the The Vvii {.1 �.LV L J11GL11 {.V1111111RLt/ , RMM� lam== 4. Determination of Tax Sharing: a. Amount of Sales Tax. In June of each fiscal year, and annually thereafter for the term of this contract, commencing with the fiscal year in which the Relocation occurs, Indio shall determine the amount of Sales Tax. b. Financial Assistance Amount. Indio then shall subtract from the amount of Sales Tax the amount of financial assistance provided to the Dealership pursuant to the Financial Assistance Agreement* between Indio and Dealership dated December 3 0, 2003 for that fiscal year (the "Financial Assistance Amount"). C. Sales Tax Share. The Sales Tax remaining after the calculation in (Ah_) shall be divided evenly between Indio and La Quinta. The amount to be paid to La Quinta's-share shall be compared to the amount of sales tax that La Quinta received from the Dealership in the 2003-20 fiscal -2- 382 year prior to Relocation) (the "base sales tax..") fiscal year.l. La Quinta shall receive a share of the Sales Tax which is the same as or less than the base sales tax (the "Sales Tax Share"). Prior to the first fiscal year in which the Sales Tax Share will be determined, La Quinta shall provide to Indio the amount of base sales tax for the fiscal year prior to Relocation and supporting documentation therefore. Andia shall he entitled to the same independent review of such amount as is La uinita under C helow. d. Payment of the Sales Tax Share. The Sales Tax Share shall be paid to La Quints (30) days of Indio receiving Sales Tax and shall be accompanied by a summary of the formula used to reach the amount paid. At the end of each Fiscal Year Indio shall recondle. suhiect to La Quintals independent review and approval. the Sales Tax Share paid throughout such Fiscal Year to La Ouinta to determine whether the Sales Tax Share was over or understated. If the amount of Sales Tax Share paid to La Ouinta exceeds the amount of Sales Tax Share calculated Dursuant to reconcilement then I& Quinta shall pay such difference to Indio within thirty (30) days or Indio may withhold such amount from future payments. If. however. the amount of Sales Tax Share paid to La Ouinta is less than the amount of Sales Tax Share calculated pursuant to reconcilement then .Indio shall pay such difference to La Ouinta within thirty (301 days. e. Notwithstanding anything herein to the contrary, in no event shall Indio be required to pay La Quinta any amount from any funds other than from Sales Tax or any amount of any kind in any fiscal year in which no Sales Tax is received or -the amount of the Sales Tax minus the Financial Assistance Amount is zero (0) or less. : 1 i' immerrimmimmm. 1' 1 1 1 1' 1 M1, rMffMi-OrTITM,: 1 II1 1 11 I 111 1, 1 1 11 1ROVIMMUCTU 1 I, 11 , 1 1 MIMI MCI IMM11 II 1 I 1 1 MW Ml TZ I IM• Il ["WIVA 261411 • I I 1 1' 1' I 1' I . 1 1 I, 1 . 1' i ' 1 I 11 1 , 1FM, min ni melI 11 I 1 1 r 1 1 1 1 1 1 1 1' 1 I 1' II I. 1 1 TIM WXITMI I PUTIM-011 IQ M IM 11 I'M 21V 17712 1 1 f 1 MI I ff II 11 1 MUM ril MOM, 1' 1 W47Mtbf=-VT3r Miffilff 1 1 1 1' 1 1 11 1 1 11 1 1 11 I I ' 1' 11 1' 1 1 11 I I 1 I, 1' , 1 1 1 I 1 1 I' , 1 -3- 383 6. Miscellaneous. a. Headings and Captions. The headings and captions in this contract are for convenience only and shall not be referred to in the interpretation of this Agreement. b. Waiver. The failure of any Party to exercise any power given it hereunder or to insist upon strict compliance with the terms of this contract shall not constitute a waiver of that Party's right to demand exact compliance with the terms hereof. Waiver by a Party of any particular default by the other shall not affect or impair its rights with respect to any subsequent defaults of the same or of a different kind; nor shall any delay or omission by a Party to exercise any rights arising from any default affect or impair its right as to such default or any future default. Any consent or waiver by a party with respect to a breach by the other party, whether express or implied, shall not constitute consent to, waiver of, or excuse for, any other different or subsequent breach. Failure by a party to enforce a provision of this contract at any time shall not -be construed as a waiver of that provision. C. Severance. Should any part of this Agreement be declared invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the Parties. If such part is determined to be invalid and/or unenforceable any remainder of such provision, and of the entire Agreement, shall remain in full force and effect. si. d Entire Agreement. This contract contains the entire agreement between the Parties. Any and all verbal or written agreements made prior to the date of this Agreement are superseded by this Agreement and shall have no further effect. No modification or change to the terms of this contract will be binding on a Party unless in writing and signed by an authorized representative of that Party. "ikyql"M 111AMMM M 7611111 IS 2774 1 on MM1 Fri re ra=- 1MMIMMIM fA e 1 1777Z I 1 I M 1 I 11 I ,,, 19 -4- 394 f. Authorization. The persons executing this Agreement on behalf of the Parties hereby warrant that they have the authority and are duly authorized and are duly authorized to execute this Agreement on behalf of the Party they purport to represent and can bind that Party to this Agreement. -5- 3 8 J IN Witness Whereof, the parties have executed this Agreement effective as of 2003. 386 BUSINESS SESSION ITEM: (P ORDINANCE NO. 391 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, REPEALING AND REPLACING CHAPTER 6.16 OF THE LA QUINTA CHARTER AND MUNICIPAL CODE RELATING TO FUGITIVE DUST CONTROL THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. That Chapter 6.16 of the La Quinta Charter and Municipal Code is hereby repealed and replaced to read as follows: Chapter 6.16 FUGITIVE DUST CONTROL Section 6.16.010 Purpose The purpose of this chapter is to establish minimum requirements for construction and demolition activities and other specified sources in order to reduce man-made fugitive dust and the corresponding PM 10 emissions. Section 6.16.020 Definitions For the purpose of this chapter, the following definitions are applicable: 1. AGRICULTURAL OPERATIONS are any operation directly related to the growing of crops, or raising of fowls or animals for the primary purpose of making a livelihood. 2. AQMD is the South Coast Air Quality Management District and the representatives thereof. 3. AVERAGE DAILY TRAFFIC (ADT) is the number of motor vehicles that traverse a given unpaved or paved surface during a specified 24-hour period. ADT levels are calculated as the average daily volume over a specified 48- hour period as determined by the City in consultation with the AQMD. 4. BULK MATERIAL is all sand, gravel, soil, aggregate and other organic and inorganic particulate matter. 387 Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 2 5. CHEMICAL DUST SUPPRESSANTS are non -toxic chemical soil binders that are not prohibited for use by the City, the California Regional Water Quality Control Board, the California Air Resources Board, the U.S. Environmental Protection Agency (U.S. EPA), or any other law, rule or regulation, used to reduce dust on disturbed surfaces. 6. COACHELLA VALLEY BEST AVAILABLE CONTROL MEASURES (CV BACK are methods to prevent or mitigate the emission and/or airborne transport of fugitive dust, as identified in the Coachella Valley Fugitive Dust Control Handbook. 7. COACHELLA VALLEY FUGITIVE DUST CONTROL HANDBOOK is the most recently approved reference document by the AQMD that includes a description of fugitive dust control measures, guidance for preparation of Fugitive Dust Control Plans, notification forms, signage provisions, and test methods. 8. CONSTRUCTION ACTIVITIES are any on -site activities preparatory to or related to the building, alteration, rehabilitation, or improvement of property, including, but not limited to the following activities; grading, excavation, trenching, loading, vehicular travel, crushing, blasting, cutting, planting, shaping, breaking, equipment staging/storage areas, weed abatement activities or adding or removing bulk materials from storage piles. 9. DEMOLITION ACTIVITIES are the wrecking or taking out of any load - supporting structural member of a structure or building and related handling operations or the intentional burning of any structure or building. 10. DISTURBED SURFACE AREA is any portion of the earth's surface (or material placed thereupon) that has been physically moved, uncovered, destabilized, or otherwise modified from its undisturbed native condition (including vehicular disturbances) thereby increasing the potential for the emission of fugitive dust. This definition does not include land that has been restored to a native condition, such that the vegetative ground cover and soil characteristics are equal to surrounding native conditions. 11. EARTH -MOVING OPERATIONS are the use of any equipment for an activity where soil is being moved or uncovered. Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 3 12. FINISH GRADE is the final grade of the site that conforms to the approved grading plan. 13. FUGITIVE DUST is any solid particulate matter that becomes airborne, other than that emitted from an exhaust stack, directly or indirectly as a result of human activities. PM 10 is a subset of fugitive dust and is defined as particulate matter with an aerodynamic diameter of 10 microns or less. 14. FUGITIVE DUST CONTROL PLAN is a document that describes fugitive dust sources at a site and the corresponding control measures and is prepared in accordance with the guidance contained in the Coachella Valley Fugitive Dust Control Handbook. 15. HIGH -WIND EPISODE is when wind speeds exceed 25 miles per hour as measured by: a. the closest AQMD monitoring station, or b. a certified meteorological monitoring station, or C. an on -site wind monitor calibrated and operated on -site in accordance with the manufacturer's specifications with a data logger or strip chart. 16. OPERATOR is any` person who owns, leases, operates, controls, or supervises any potential fugitive dust generating operation subject to the requirements of this ordinance. This definition includes any person who has been officially designated by a property owner as the person responsible for fugitive dust control at a site, as indicated in an approved Fugitive Dust Control Plan. 17. PAVED ROAD is an improved street, highway, alley, public way, or easement that is covered by roadway materials (e.g., cement, asphalt or asphaltic concrete). 18. PHYSICAL ACCESS RESTRICTION is any barrier, including but not limited to; curbs, fences, gates, posts with fencing, shrubs, trees, or other measures that are effective in preventing vehicular and Off -Highway Vehicle (OHV) use of a specified site. 389 Ordinance No. 391 Chapter 6.16 - La auinta Municipal Code Adopted: December 2, 2003 Page 4 19. SILT is any bulk material with a particle size less than 75 micrometers in diameter that passes through a Number 200 sieve as determined by American Society of Testing and Materials (ASTM) Test Method C 136 or any other test method approved by the U.S. EPA and AQMD. 20. SITE is the real property on which construction, demolition, or other activities subject to this ordinance may occur. 21. STABILIZED SURFACE is any portion of land that meets the minimum standards as established by the applicable test method contained in the Coachella Valley Fugitive Dust Control Handbook. 22. STORAGE PILE is any accumulation of bulk material with a height of three feet or more and a total surface area of 300 or more square feet. 23. UNPAVED PARKING LOT is an area utilized for parking vehicles and associated vehicle maneuvering that is not covered with roadway materials (e.g.,'cement, asphalt or asphaltic concrete). 24. UNPAVED ROAD is any service roads, internal access roads, heavy and light duty equipment paths and other roadways which are not covered by typical roadway materials (e.g., cement, asphalt, asphaltic concrete). 25. TEMPORARY UNPAVED PARKING LOTS are those used less than 24 days per year. Section 6.16.030 Performance Standards and Test Methods All performance standards and test methods referenced in this ordinance shall be based on the methodologies included in the Coachella Valley Dust Control Handbook, approved and adopted by the La Quinta City Council on December 2, 2003, or the most current version available. Section 6.16.040 Control Requirements A. Work Practices — All Fugitive Dust Sources 1. No operator shall conduct any potential dust -generating activity on a site unless the operator utilizes one or more Coachella Valley Best Available Control Measures, as identified in the Coachella Valley Fugitive Dust Control Handbook for each fugitive dust source such that the applicable performance standards are met. 3,90 Ordinance No. 391 Chapter 6.16 - Le Quints Municipal Code Adopted: December 2, 2003 Page 6 2. Any operator involved in any potential dust -generating activity on a site with a disturbed surface area greater than one acre shall, at a minimum, operate a water application system as identified in the Coachella Valley Fugitive Dust Control Handbook, if watering is the selected control measure. Performance Standards and Test Methods 3. No person subject to the requirements contained in Section 6.16.050.A.1 shall cause or allow visible fugitive dust emissions to exceed 20 percent opacity, or extend more than 100 feet either horizontally or vertically from the origin of a source, or cross any property line. B. Construction and Demolition Activities 1. Any operator applying for a grading permit, or a building permit for an activity with a disturbed surface area of more than 5,000 square feet, shall not initiate any earth -moving operations unless a Fugitive Dust Control Plan has been prepared pursuant to the provisions of the Coachella Valley Fugitive Dust Control Handbook and approved by the City. 2. A complete copy of the approved Fugitive Dust Control Plan must be kept on site in a conspicuous place at all times and provided to the City and AQMD upon request. 3. Any operator involved in demolition activities shall comply with AQMD Rule 1403 (Asbestos Emissions from Demolition/Renovation Activities) requirements, and the requirements of Title 40, Part 61 of the code of Federal Regulations. 4. Any operator involved in earth -moving operations shall implement at least one of the following short-term stabilization methods during non- working hours: a. maintaining soils in a damp condition as determined by sight or touch; or b. establishment of a stabilized surface through watering; or C. application of a chemical dust suppressant in sufficient quantities and concentrations to maintain a stabilized surface. 91 Ordinance No. 391 Chapter 6.16 - La Quints Municipal Code Adopted: December 2, 2003 Page 6 5. Within 10 days of ceasing activity, an operator shall implement at least one of the following long-term stabilization techniques for any disturbed surface area where construction activities are not scheduled to occur for at least 30 days: a. revegetation that results in 75 percent ground coverage provided that an active watering system is in place at all times; or b. establishment of a stabilized surface through watering with physical access restriction surrounding the area; or C. use of chemical stabilizers to establish a stabilized surface with physical access restriction surrounding the area. 6. Any operator shall remove all bulk material track -out from any site access point onto any paved road open to through traffic: a. within one hour if such material extends for a cumulative distance of greater than 25 feet from any site access point; and b. at the conclusion of each workday. 7. Any operator of a project with a disturbed surface area of five or more acres or of any project that involves the import or export of at least 100 cubic yards of bulk material per day shall install and maintain at least one of the following control measures at the intersection of each site entrance and any paved road open to through traffic with all vehicles exiting the site routed over the selected device(s): a. pad consisting of minimum one inch washed gravel maintained in a clean condition to a depth of at least six inches and extending at least 30 feet wide and at least 50 feet long; or b. paved surface extending at least 100 feet and at least 20 feet wide; or C. wheel shaker / wheel spreading device consisting of raised dividers (rails, pipe, or grates) at least three inches tall and at least six inches apart and 20 feet long; or d. a wheel washing system. 392 Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 7 8. Any operator required to submit a Fugitive Dust Control Plan under Section 6.16.040.B.1 shall install and maintain project contact signage that meets the minimum standards of the Coachella Valley Fugitive Dust Control Handbook, including a 24-hour manned toll -free or local phone number, prior to initiating any type of earth -moving operations. 9. Any operator of a project with a disturbed surface area of 50 or more acres shall have an Environmental Observer on the site or available on -site within 30 minutes of initial contact that: a. is hired by the property owner or developer; and b. has dust control as the sole or primary responsibility; and C. has successfully completed the AQMD Coachella Valley Fugitive Dust Control Class and has been issued a Certificate of Completion for the class; and d. is identified in the approved Fugitive Dust Control Plan as having the authority to immediately employ sufficient dust mitigation 24-hours per day, seven days a week and to ensure compliance with this ordinance, the approved Fugitive Dust Control Plan, and AQMD regulations. Performance Standards and Test Methods 10. No operator required to submit a Fugitive Dust Control Plan under Section 6.16.040.B.1 shall cause or allow visible fugitive dust emissions to exceed 20 percent opacity, or extend more than 100 feet either horizontally or vertically from the origin of a source, or cross any property line. 11. Exceedance of the visible emissions prohibition in Section 6.16.040.B.1 occurring due to a high -wind episode shall constitute a violation of Section 6.16.040.B.1, unless the operator demonstrates to City all the following conditions: a. all Fugitive Dust Control Plan measures or applicable Coachella Valley Best Available Control Measures were implemented and maintained on site; and 393 Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 8 b. the exceedance could not have been prevented by better application, implementation, operation, or maintenance of control measures; and C. appropriate recordkeeping was complied and retained in accordance with the requirements in Section 6.16.040.B.12 through 6.16.040. B.15; and d. documentation of the high -wind episode on the day(s) in question is provided by appropriate records. Reporting / Recordkeeping Before Construction 12. The operator of a project with ten acres or more of earth -moving operations shall: a. forward two copies of a Site -Specific, Stand Alone [8'h by 11 inch] Fugitive Dust Control Plan to the AQMD within ten days after approval by the City. [Note: A separate AQMD approval will not be issued]; and b. notify the City and the AQMD at least 24-hours prior to initiating earth -moving operations. During Construction C. operator involved in earth -moving operations shall compile, and maintain for a period of not less than three years, daily self - inspection recordkeeping forms in accordance with the guidelines contained in the Coachella Valley Fugitive Dust Control Handbook. d. operator involved in earth -moving operations that utilizes chemical dust suppressants for dust control on a site shall compile records indicating the type of product applied, vendor name, and the method, frequency, concentration, quantity and date(s) of application and shall retain such records for a period of not less than three years. Ordinance No. 391 Chapter 6.16 - La auinta Municipal Code Adopted: December 2, 2003 Page 9 After Construction e. operator subject to the provisions of Section 6.16.040. B.12 shall notify the City and the AQMD within ten days of the establishment of the finish grade or at the conclusion of the finished grading inspection. C. Disturbed Vacant Lands / Weed Abatement Activities 1. Owners of property with a disturbed surface area greater than 5,000 square feet shall within 30 days of receiving official notice by the City prevent trespass through physical access restriction as permitted by the City. 2. In the event that implementation of Section 6.16.040.C.1 is not effective in establishing a stabilized surface within 45 days of restricting access, the owner shall implement at least one of the following long term stabilization techniques within an additional 15 days, unless the City has determined that the land has been restabilized: a. uniformly apply and maintain surface gravel or chemical dust suppressants such that a stabilized surface is formed; or b. begin restoring disturbed surfaces such that the vegetative cover and soil characteristics are similar to adjacent or nearby undisturbed native conditions. Such restoration control measure(s) must be maintained and reapplied, if necessary, such that a stabilized surface is formed within 8 months of the initial application. 3. Any operator conducting weed abatement activities on a site that results in a disturbed surface area of 5,000 or more square feet shall: a. apply sufficient water before and during weed abatement activities such that the applicable performance standards are met; and b. ensure that the affected area is a stabilized surface once weed abatement activities have ceased. 395 Ordinance No. 391 Chapter 6.16 - La auinta Municipal Code Adopted: December 2, 2003 Page 10 Performance Standards and Test Methods 4. No person subject to the provisions of Sections 6.16.040.C.1 through 6.16.040.C.3 shall cause or allow visible fugitive dust emissions to exceed 20 percent opacity, or extend more than 100 feet either horizontally or vertically from a source, or cross any property line, and shall either: a. maintain a stabilized surface; or b. maintain a threshold friction velocity for disturbed surface areas corrected for non -erodible elements of 100 centimeters per second or higher. Reporting / Recordkeeping 5. Within 90 days of ordinance adoption, operators of property with disturbed surface area of 5,000 or more square feet shall notify the City of the location of such lands and provide owner contact information. 6. Any person subject to the provisions of Sections 6.16.040.C.1 through 6.16.040.C.3 shall compile, and retain for a period of not less than three years, records indicating the name and contact person of all firms contracted with for dust mitigation, listing of dust control implements used on -site, and invoices from dust suppressant contractors/vendors. D. Unpaved Roads 1. Owners of private unpaved roads with -average daily traffic levels between 20 and 150 vehicles must take measures (signage or speed control devices) to reduce vehicular speeds to no more than 15 miles per hour. 2. Owners of a cumulative distance of six or less miles of private unpaved roads shall pave each segment having 150 or more average daily trips or, alternatively apply and maintain chemical dust suppressants in accordance with the manufacturer's specifications for a travel surface and the performance standards included in Section 6.16.040.D.4 in accordance with the following treatment schedule: a. one-third of' qualifying unpaved road segments within one year of ordinance adoption; and 396 Ordinance No. 391 Chapter 6.16 - La auinta Municipal Code Adopted: December 2, 2003 Page 11 b. remainder of qualifying unpaved road segments within three years of ordinance adoption. (Note: treatments in excess of annual requirements can apply to future years.) 3. Owners of a cumulative distance of more than six miles of private unpaved roads shall stabilize each segment having 150 or more average daily trips in accordance with the following treatment schedule: a. at least two miles paved or four miles stabilized with chemical dust suppressants in accordance with the manufacturer's specifications for a travel surface and the performance standards established in Section 6.16.040.D.4 within one year of the ordinance adoption; and b. at least two miles paved or four miles stabilized with chemical dust suppressants in accordance with the manufacturer's specifications for a travel surface and the performance standards included in Section 6.16.040.D.4 in accordance with the following treatment schedule annually thereafter until all qualifying unpaved roads have been stabilized. (Note: treatments in excess of annual requirements can apply to future years) . Performance Standards and Test Methods 4. Owners of any private unpaved road shall not allow visible fugitive dust emissions to exceed 20 percent opacity, or extend more than 100 feet either horizontally or vertically from the origin of a source, and shall either: a. not allow silt loading to be equal to or greater than 0.33 ounces per square foot; or b. not allow the silt content to exceed six percent. Reporting / Recordkeeping 5. Within 90 days of ordinance adoption, owners of unpaved roads shall provide to the City and the AaMD the location and ADT estimates for all unpaved roads. ,.i 97 Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 12 6. Owners of unpaved roads that utilize chemical dust suppressants shall compile, and retain for a period of not less than three years, 'records indicating the type of product applied, vendor name, and the method, frequency, concentration, quantity and date(s) of application. E. Unpaved Parking Lots 1. Owners of parking lots established subsequent to ordinance adoption are required to pave such areas, or alternatively apply and maintain chemical dust suppressants in accordance with the manufacturer's specifications for traffic areas and the performance standards included in Section 6.16.040.E.4. 2. Owners of existing private unpaved parking lots shall implement one of the following control strategies within 180 days of ordinance adoption: a. pave; or b. apply and maintain dust suppressants in accordance with the manufacturer's specifications for traffic areas and the performance standards included in Section 6.16.040.E.4; C. apply and maintain washed gravel in accordance with the performance standards included in Section 6.16.040.E.4. 3. Owners of private temporary unpaved parking lots (those that are used 24 days or less per year) shall apply and maintain chemical dust suppressants in accordance with the manufacturer's specifications for traffic areas and the performance standards included in Section 6.16.040.E.4 prior to any 24-hour period when more than 40 vehicles are expected to enter and park. The owner of any temporary unpaved parking lot greater than 5,000 square feet shall implement the disturbed vacant land requirements contained in Section 6.16.040.0 during non -parking periods. Performance Standards and Test Methods 4. The operator of any private unpaved parking lot shall not allow visible fugitive dust emissions to exceed 20 percent opacity, or extend more than 100 feet either horizontally or vertically from the origin of a source, and shall either: �98 Ordinance No. 391 Chapter 6.16 - La auinta Municipal Code Adopted: December 2, 2003 Page 13 a. not allow silt loading to be equal to or greater than 0.33 ounces per square foot; or b. not allow the silt content to exceed eight percent. Reporting / Recordkeeping 5. Within 90 days of ordinance adoption, owners of unpaved parking lots shall provide to the City and the AQMD the location and ADT estimates and the size (in square feet) of unpaved parking lots. 6. Owners of unpaved parking lots that utilize chemical dust suppressants or apply gravel shall compile, and retain for a period of not less than three years, records indicating the type of product applied, vendor name, and the method, frequency, concentration, quantity and date(s) of application. F. Public or Private Paved Roads 1. Any owner of paved roads shall construct, or require to be constructed all new or widened paved roads in accordance with the following standards: a. curbing in accordance with the American Association of State Highway and Transportation Officials guidelines or as an alternative, road shoulders paved or treated with chemical dust suppressants or washed gravel in accordance with the performance standards included in Section 6.16.040.D.4 with the following minimum widths: Average Daily Trips Minimum Shoulder Width 500 - 3,000 4 feet 3,000 or greater 8 feet b. paved medians or as an alternative, medians surrounded by curbing and treated with landscaping, chemical dust suppressants, or washed gravel applied and maintained in accordance with the performance standards included in Section 6.16.040.D.4. 399 Ordinance No. 391 Chapter 6.16 - La Quints Municipal Code Adopted: December 2, 2003 Page 14 2. Any owner of public or private paved roads shall remove or cause to be removed any erosion -caused deposits of greater than 2,500 square feet within 24-hours after receiving notice by the City or the AQMD or prior to resumption of traffic where the paved area has been closed to vehicular traffic. Section 6.16.050 Administrative Requirements 1. Any operator preparing a Fugitive Dust Control Plan shall complete the AQMD Coachella Valley Fugitive Dust Control Class and maintain a current valid Certificate of Completion. 2. At least one representative of each construction or demolition general contractor and subcontractor responsible for earth -movement operations shall complete the AQMD Coachella Valley Fugitive Dust Control Class and maintain a current valid Certificate of Completion. 3. All reporting / recordkeeping required by Section 6.16.040.13 shall be provided to the City and AQMD representatives immediately upon request. 4. All reporting / recordkeeping required by Section 6.16.040.0 through Section 6.16.040.F shall be provided to the City and AQMD representatives within 24-hours of a written request. Section 6.16.060 Exemptions 1. The provisions of this ordinance shall not apply to: a. agricultural operations including on -field sources and unpaved roads used solely for agricultural operations. b. any dust -generating activity where necessary fugitive dust preventive or mitigative actions are in conflict with either federal or State Endangered Species Act provisions as determined in writing by the appropriate federal or state agency. C. any action required or authorized to implement emergency operations that are officially declared by the City to ensure the public health and safety. 400 Ordinance No. 391 Chapter 6.16 - La auinte Municipal Code Adopted: December 2, 2003 Page Is 2. The provisions of Section 6.16.040.13.1 shall not apply to any construction or demolition activity meeting any of the following activity levels or requirements: a. the activity is occurring entirely within an enclosed structure from which no visible airborne particulate matter escapes; or b. activities that do not require issuance of a grading permit or those that require a building permit provided that the project results in 5,000 or less square feet of soil disturbance. 3. . The provisions of Section 6.16.040.13.8 shall not apply to: a. projects that takes two weeks or less to complete provided that a long-term stabilization technique(s) identified in Section 6.16.040.0 are implemented; and b. line projects (i.e., pipelines, cable access lines, etc.). Section 6.16.070 Compliance 1. A person violating any section of this chapter or with any portion of an approved Fugitive Dust Control Plan is guilty of an infraction punishable by a fine of not more than one hundred dollars ($100.00) for a first violation and a fine not exceeding four hundred dollars ($400.00) for a second violation within one year. A third violation, or more, within one year shall each be prosecuted at a level consistent with a misdemeanor violation. 2. In addition to any other remedy provided by law, failure to correct any condition indicated in a notice of violation within one hour of issuance will allow the City to initiate one or more of the following actions where appropriate: a. Criminal proceedings. b. Civil proceedings to obtain an injunction; or any other relief against the owner or operator to stop operations at the site. C. Refusal to issue future permits and/or release of securities held until owner or operator has adequately demonstrated compliance with the notice of violation. Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: Qecember 2, 2003 Page 16 d. Correction of the condition by the City through the use of any securities held under this chapter. e. Any enforcement methods authorized by Chapter 1.09 of this code. SECTION 2. EFFECTIVE DATE: This Ordinance shall be in full force and effect thirty (30) days after its adoption. SECTION 3. POSTING: The City Clerk shall within fifteen (15) days after passage of this Ordinance, cause it to be posted in at least three (3) public places designated by resolution of the City Council; shall certify to the adoption and posting of this Ordinance; and shall cause this Ordinance and its certification, together with proof of posting, to be entered into the Book of Ordinances of the City of La Quinta. PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City Council held on this 2"d day of December, 2003, by the following vote: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta, California 40 Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 17 ATTEST: JUNE S. GREEK, CMC, City Clerk City of La Quinta,. California (City Seal) APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California Ordinance No. 391 Chapter 6.16 - La Quinta Municipal Code Adopted: December 2, 2003 Page 18 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss. CITY OF LA QUINTA ) I, JUNE S. GREEK, City Clerk of the City of La Quinta, California, do hereby certify the foregoing to be a full, true and correct copy of Ordinance No. 391 which was introduced at a regular meeting held on the 18th day of November, 2003, and was adopted at a regular meeting held on the 2"d day of December, 2003, not being less than 5 days after the date of introduction thereof. I further certify that the foregoing Ordinance was posted in three places within the City of La Quinta as specified in a Resolution of the City Council. JUNE S. GREEK, CMC, City Clerk City of La Quinta, California 4#-4 BUSINESS SESSION ITEM: 7 ORDINANCE NO. 392 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, APPROVING AN AMENDMENT TO CHAPTER 8.13 OF THE MUNICIPAL CODE ZONING ORDINANCE AMENDMENT 2003-077 CITY OF LA QUINTA THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. Assembly Bill 325 requires each city to adopt a Water Efficient Landscape Ordinance, or adopt the State model Water Efficient Landscape Ordinance; and SECTION 2. A Water Efficient Landscape Ordinance will promote water conservation and appropriate plant material to match the La Quinta theme and climate; and SECTION 3. That Chapter 8.13, Water Efficient Landscaping, of the La Quinta Municipal Code, be amended as contained in the attached Exhibit "A"; and SECTION 4. Environmental Determination. This Ordinance has compiled with the requirements of "The Rules to Implement the California Environmental Quality Act of 1970" in that the Community Development Department has determined that the Amendments to the Municipal Code are exempt pursuant to Chapter 2.6, Section 21080 of the Public Resources Code, California Environmental Quality Act (CEQA) Statutes, and Section 15268, ministerial project, of the CEQA Guidelines. PASSED, APPROVED, and ADOPTED at a regular meeting of the La Quinta City Council held on this 2"d day of December, 2003, by the following vote: AYES: NOES: ABSENT: ABSTAIN: 0J Ordinance No. 392 Water Efficient Landscaping Chapter 8.13 - La Quinta Municipal Code Adopted: December 2, 2003 Page 2 DON ADOLPH, Mayor City of La Quinta, California ATTEST: JUNE S. GREEK, CMC, City Clerk City of La Quinta, California (City Seal) APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California 4�� Ordinance No. 392 Water Efficient Landscaping Chapter 8.13 - La Quints Municipal Code Adopted: December 2, 2003 Page 3 STATE OF CALIFORNIA) COUNTY OF RIVERSIDE) ss. CITY OF LA QUINTA ) I, JUNE S. GREEK, City Clerk of the City of La Quinta, California, do hereby certify the foregoing to be a full, true, and correct copy of Ordinance No. 392 which was introduced at a regular meeting on the 18th day of November, 2003, and was adopted at a regular meeting held on the 2"d day of December, 2003, not being less than 5 days after the date of introduction thereof. I further certify that the foregoing Ordinance was posted in three places within the City of La Quinta as specified in a Resolution of the City Council. JUNE S. GREEK, CMC, City Clerk City of La Quinta, California 407 EXHIBIT "A" WATER EFFICIENT LANDSCAPING ORDINANCE Sections: 0.00.01.0 Purpose and intent. 0.00.020 Definitions. 0.00.030 Provisions for new or rehabilitated landscapes. 0.00.040 Provisions for existing landscapes. 0.10.050 Fees for initial review. and program monitoring. 0.10.060 Appeals. 0.00.010 Purpose and intent. A. . The purpose of this ordinance is to establish effective water efficient landscape requirements for newly installed and rehabilitated landscapes. It is also the intent of this ordinance to implement the requirements of the State of California Water Conservation in Landscaping Act, Statutes of 1990, Chapter 1145 (AB 325). B. It is the intent of the city council to promote water conservation through climate appropriate plant material and efficient irrigation as well as to create a city landscape theme through enhancing and improving the physical and natural environment. 0.00.020 Definitions. The words used in this chapter have the meanings set forth below: A. "Anti -drain valve" or "check valve" means a valve located under a sprinkler head to hold water in the system so it minimizes drainage from the lower elevation sprinkler heads. B. "Application rate" means the depth of water applied to a given area, ` usually measured in inches per hour. Also known as precipitation rate (sprinklers) or emission rate(drippers/microsprayers) in gallons per hour. C. "Applied water" means the portion of water supplied by the irrigation system to the landscape. D. "Automatic controller" means a mechanical or solid-state timer, capable of operating valve stations to set the days and length of time of a water application. E. "Backfiow prevention device" means a safety device used to prevent pollution or contamination of the water supply due to the reverse flow of water from the irrigation system. F. "Conversion faction (0.62)" means a number that converts the maximum applied water allowance from acre -inches per acre per year to gallons per square foot per year. The conversion factor is calculated as follows: (325,851 gallons/43,560 square feet)/12 inches = (0.62) 325,851 gallons = one acre-foot 43,560 square feet = one acre 12 inches = one foot To convert gallons per year to 100 cubic feet per year, the common billing unit for water, divide gallons per year by' T48. (748 gallons = 100 cubic feet) G. . "Ecological restoration project" means a project where the site is intentionally altered to establish a defined, indigenous, historic ecosystem. H. "Effective precipitation" or "usable rainfall" means. the portion of total natural precipitation that is* used by the plants. Precipitation is not a reliable source of water in the desert. I. "Emitter" means drip irrigation fittings that deliver water slowly from the system to the soil. J. "Established landscape" means the point at which plants in the landscape have developed roots into the soil adjacent to the root ball. K. "Establishment period" means the first year after installing the plant in the landscape. L. " Estimated annual applied water use" means the portion of the estimated annual total. water use that is derived from applied water. The estimated annual applied water use shall not. exceed the maximum applied water allowance. M. "Estimated total water use" means the annual total amount of water estimated to be needed to keep the plants in the landscaped area healthy. It is based upon such factors as the local evapotranspiration rate, the size of the landscaped area, the types of plants, and the efficiency of the irrigation system. N. "ET adjustment factor" means a factor of 0.6 that, when applied to reference evapotranspiration, adjusts for plant factors and irrigation efficiency, two major influences upon the amount of water that needs to be applied to the landscape. A combined plant mix with a site -wide average 0.45 is the basis of the plant factor portion of this calculation. The irrigation efficiency for purposes of the ET adjustment factor is 0.75. Therefore, the ET adjustment factor (0.6) = (0.45/0.75). O. "Evapotranspiration" means the quantity of water evaporated from adjacent soil surfaces and transpired by plants during a specific time. P. "Flow rate" means the rate at which water flows through pipes and valves (gallons per minute or cubic feet per second). Q. "Hydrozone" means a portion of the landscaped area having plants with similar water needs that are served by a valve or set of valves with the same schedule. A hydrozone may be irrigated or nonirrigated. For example, a naturalized area planted with native vegetation that will not need supplemental irrigation once established is a nonirrigated hydrozone. 409. R. "Infiltration rate" means the rate of water entry into the soil expressed as a depth of water per unit of time (inches per hour). S. "Irrigation efficiency" means the measurement of the amount of water beneficially used divided by the amount of water applied. Irrigation efficiency is derived from measurements and estimates of irrigation system characteristics and management practices. The minimum irrigation efficiency for purposes of this chapter is 0.75. Greater irrigation efficiency can be expected from well -designed and maintained systems. T. "Landscape irrigation audit" means a process to perform site inspections, evaluate irrigation systems, and develop efficient irrigation schedules. U. ' "Landscaped area" means the entire parcel less the building footprint, driveways, nonirrigated portions of parking lots, hardscapes such as decks and patios, and other nonporous areas. Water features are included in the calculation of the landscaped area. V. . "Lateral line" means the water delivery pipeline that supplies water to the emitters or sprinklers from the valve. W. "Main line" means the pressurized pipeline that delivers water from the water meter to the valve or outlet. X. "Service line" means the pressurized pipeline that delivers water from the water source to the water meter. Y. "Maximum applied water allowance" means for design purposes, the upper limit of annual applied water for the established landscaped area. It is based upon the area's reference evapotranspiration, the ET adjustment factor, and the size of the landscaped area. The estimated applied water use shall not exceed the maximum applied water allowance. Z. ."Mined -land reclamation projects" means any surface mining operation with a reclamation plan approved in accordance with the Surface Mining and Reclamation Act of 1975. AA. "Mulch" means any material such -as gravel, small rocks, pebbles, decorative sand, decomposed granite, bark, straw or other material left loose and applied to the soil surface for the beneficial purpose of reducing evaporation. BB. "Operating pressure" means the manufacturer's recommended pressure at which a system of sprinklers, bubblers, drippers or microsprayers is designed to operate. CC "Overhead -sprinkler irrigation systems" means those with high flow rates (pop -ups, impulse sprinklers, rotors, etc.).. DD. "Overspray" means the water which is delivered beyond the landscaped area, wetting pavements, walks, structures, or other nonlandscaped areas. EE. "Plant factor" means a factor that when multiplied by reference evapotranspiration, estimates the 410 amount of water used by plants. For purposes of this ordinance, the average plant factor of very low water using plants ranges from 0.01 to 0.10, for low water using plants the range is 0.10 to 0.35, for moderate water using plants the range is 0.35 to 0.60 and for high water using plants, the range is '0.60 to 0'.90. FF. "Rain sensing device" means a system which automatically shuts off the irrigation system when it rains. . GG. "Record drawing" or "as-builts" means a set of reproducible drawings which show significant changes in the work made during construction which are usually based on drawings marked up in the field and other data furnished by the contractor. HH. "Recreational area" means areas of active play or recreation such as sports fields, school yards, picnic .grounds, or other areas with intense foot traffic. II. "Recycled water," "reclaimed water" or "treated sewage effluent water" means treated or recycled waste water of a quality suitable for nonpotable uses such as landscape irrigation; not intended for human consumption. JJ. "Reference evapotranspiration". or "ETo" means a standard measurement of environmental parameters which affect the water use of plants. ETo is given in inches per day, month, or year, and is an estimate of the evapotranspiration of a large field of cool -season grass that is well watered. Reference evapotranspiration is used as a basis of determining the maximum applied water allowances so that regional differences in climate can be accommodated. For purposes of this ordinance, the following ETo zone map will be used(See attached). KK. "Rehabilitated landscape" means any relandscaping .project whose choice of new -plant material and/or new irrigation system components is such that the calculation of the site's estimated water use will be significantly changed. The new estimated water use calculation must not exceed the maximum applied water allowance calculated for the site using a 0.6 ET adjustment factor. LL. "Runoff" means water which is not absorbed by the soil or landscape to which it is applied and flows from the planted area. For example, runoff may result from water that is applied at too great a rate (application rate exceeds infiltration rate), when there is a severe slope or when water is misapplied to hardscapes. MM. "Soil moisture sensing. device" means a device that measures the amount of water in the soil. NN. "Soil texture" means the classification of soil based on the percentage of sand, silt and clay in the soil. 00. "Sprinkler head* means a device which sprays water through a nozzle. 411 PP. "Static water pressure" means the pipeline pressure when water is not flowing. QQ. "Station" means an area served by one valve or by a set of valves that .operates simultaneously. RR. "Turf" means a surface layer of earth containing mowed grass with its roots. Perennial and Annual Ryegrass are cool season grasses. Hybrid and common Bermuda grass, are warm season grasses. SS. "Valve" means a device used to control the flow of water in the irrigation system. TT. "Water Conservation Concept Statement" means a one -page checklist and a narrative summary of the project. UU. "Water Feature" means any water applied to the landscape for non -irrigation decorative purposes. Fountains, streams, ponds and lakes are considered water features. Water features use more water than efficiently irrigated turfgrass and are assigned a plant factor value of 1.1 for a stationary body of water and 1.2 for a moving body of water. VV. "Recreational Turfgrass" means turfgrass that serves as a playing surface for sports and recreational activities. Athletic fields, golf courses, parks and school playgrounds are all examples of areas hosting recreational turfgrass. WW. "Recreational Turfgrass ET adjustment factor" means a factor of 0.82 that, when applied to reference evapotranspiration, adjusts for the additional stress of high traffic on recreational turfgrass and the higher irrigation efficiencies of long range rotary sprinklers. These are the two major influences upon the amount of water that needs to be applied to a recreational landscape. A mixed cool/warm season turfgrass with a seasonal average of 0.7 is the basis of the plant factorportion of this calculation. The irrigation efficiency of long range sprinklers for purposes of the ET adjustment factor is 0.85. Therefore, the ET adjustment factor is 0.82 = 0.7/0.85. Note: Section 65594, Government Code. Reference: Section 65597, Government Code. (Ord. 220 § 1 (Exh. A) (part), 1993) 0.00.030 Provisions for new or rehabilitated landscapes. A. Applicability. .10 Except as provided in subsection (A) (3) of this section, this section shall apply to: a. All new and rehabilitated landscaping for private, public, commercial and governmental development projects that require a permit; and b. Developer -installed landscaping in single-family tracts and multifamily projects. 2. Projects subject to this section shall conform to the provisions in this section. 41� 3. This section shall not apply to: a. Resident homeowner -provided landscaping at single-family residences B. Landscape Documentation Package. 1. Each landscape documentation package shall include the following elements, which are described in subsection C of this section. a. Water conservation concept statement; b. . Calculation of the maximum applied water allowance; C. Calculation of the estimated applied water use; d. Calculation of the estimated total water. use; e. Landscape design plan; f. Irrigation design plan; g. Grading design plan: h. Soil analysis (optional); i. Certificate of substantial completion. (To be submitted by certified landscape designer, auditor or landscape architect after installation of the project.) 2. Three copies of the landscape documentation package conforming to this chapter shall be submitted to the city. No permit shall be issued until the city reviews and approves the landscape documentation package. . Prior to preparation and submission of the landscape documentation package, the preliminary landscape design shall be approved by the planning commission. 3. A copy of the approved landscape documentation package shall be provided to the property owner or site manager along with the record drawings and any other information normally forwarded to the property owner or site manager. 4. Upon completion of construction, a copy of the water conservation concept statement and the certificate of substantial completion shall be sent by the project, manager to the water management specialist of the water district and city/county having jurisdiction. C. . Elements of Landscape Documentation Package. 1. Water Conservation Concept Statement. Each landscape documentation package shall -include a cover sheet, referred to as the water conservation statement similar to the following example. It serves as a checklist to verify that the elements of the landscape documentation package have been completed and has a narrative summary of the project. 413 SAMPLE WATER CONSERVATION CONCEPT STATEMENT Project Site: Project Location: Case Number: Landscape Architect/Irrigation Designer/Contractor: Included in this project. submittal package. are: (Check to indicate completion) ' 1. Maximum Annual Applied Water Allowance: Conventional Landscape: 100 cubic feet/year + Recreational Turfgrass Landscape: 100 cubic feet/year(if applicable) Total Maximum Annual Applied Water Allowance: 100 cubic feet/year 2. Estimated Annual Applied Water Use by Hydrozone: Turfgrass: 100 cubic feet/year Recreational Turfgrass: 100 cubic feet/year Exotic Trees/Shrubs/Groundcovers: 100 cubic feet/year Desert Plants: 100 cubic feet/year Water features: 100 cubic feet/year Other 100 cubic feet/year 3. Estimated Annual Total Water Use: 100 cubic feet/year 4. Landscape Design Plan 5. Irrigation Design Plan 6. Grading Design Plan 7. Soil Chemical Analysis (optional) Description of Project: (Briefly describe the planning and design actions that are intended to achieve conservation and efficiency in water use.) Date: Prepared by: 414 1. The Annual Maximum Applied Water Allowance. a. A project's annual maximum applied water allowance shall be calculated using the following formula: MAWA = (ETo) (0.6) (LA) (0.62) where: MAWA = Maximum applied water allowance (gallons per year) ETo = Reference evapotranspiration fie 75.0 inches per year) 0.6 = ET adjustment factor_ LA Landscaped area (square feet) 0.62 = Conversion factor (to gallons per square foot) b. An example calculation of the annual maximum applied - water allowance is: Project site: Landscape area of fifty thousand square feet in Zone #3a of the Coachella Valley ETo Map. MAWA = (ETo) (A (LA) (.62) _ 475.0 inches) (.6) (50,000 square feet) (.62) Maximum _applied water allowance = 1,395,000 gallons per year, 1,865 hundred -cubic -feet per year(billing units), 4.28 Acre Feet/Acre per year or 51.4" of water per year. 2. Estimated Annual Applied Water Use. a. The annual estimated applied water use shall not exceed the annual maximum applied water allowance. b. A calculation of the estimated annual applied water use shall be submitted with the landscape documentation package. c. The estimated annual total water use for each hydrozone is calculated from the following formula: EWU (hydrozones) = (ETo) (PH (HA) (.62)/748 (in 100 cubic feet) (IE) EWU (hydrozone) = Estimated water use (gallons per year) ETo = Reference evapotranspiration fie. ETo Zone 3a = 75.00 inches per year) PF = Plant factor (see definitions) HA = Hydrozone area (square feet) (.62) = Conversion factor OE) = Irrigation efficiency (see definitions) 748 = Conversion to billing units 0 00 cubic feet) 415 3. Estimated Annual Total Water Use. A calculation of the estimated annual total hydrozone water use shall be submitted with the landscape documentation package. The estimated annual total water use for the entire landscaped area equals the sum of the estimated annual water use (EWU) of all hydrozones in that landscaped area. 4. Landscape Design Plan. A landscape design plan meeting the following requirements shall be submitted as part of the landscape documentation package. a. Plant Selection and Grouping. i. Any plants may be used in the landscape, providing the estimated annual applied water use recommended does not exceed the maximum annual applied water allowance and that the plants meet the specifications set forth in (ii), (iii) and (iv). ii. Plants having similar water use shall be grouped together in distinct hydrozones. M. Plants shall be selected appropriately based upon their adaptability to the climate, geologic, and topographical conditions of the site. Protection and preservation of native species .and natural areas is encouraged. The planting of trees is encouraged whenever it is consistent with the other provisions of this chapter. iv. Fire prevention needs shall be addressed in areas that are fire prone. Information about fire prone areas and appropriate landscaping for fire safety is available from the fire marshal. b. Water Features. i. Recirculating water shall be used for decorative water features. c. Landscape Design Plan Specifications. The landscape design plan shall be drawn on project base sheets at a scale that accurately and clearly identifies: i. Designation of hydrozones; H. Landscape materials, trees, shrubs, groundcover, turf and other vegetation. Planting symbols shall be clearly drawn and plants labeled by botanical name, common name, water use classification, container size, spacing and quantities of each group of plants indicated; iii. Property lines and street names; iv. Streets, driveways, walkways and other paved areas; v. Pools, ponds, water features, fences and retaining walls; vi. Existing and proposed buildings and structures including elevation, if applicable; vii. Location of all overhead and underground utilities. viii. Natural features including but not limited to rock outcroppings, existing trees and shrubs that will remain; ix.Tree staking, plant installation, soil preparation details, and any other applicable planting and installation details; , x. A calculation of the total landscaped area; xi. Designation of recreational areas. 5. Irrigation Design Plan. An irrigation design plan meeting the following conditions shall be submitted as part of the landscape documentation package. a. Irrigation Design Criteria. i. Runoff and Overspray. Soil types and infiltration rate shall be considered when designing irrigation systems. All irrigation systems shall be designed to avoid runoff, low -head drainage, overspray, or other similar conditions where water flown onto adjacent property, nonirrigated areas, walks, roadways or structures. Proper irrigation equipment and schedules, including features such as repeat cycles, shall be used to closely match application' rates to infiltration rates therefore minimizing runoff. Special attention shall be given to avoid runoff on slopes and to avoid overspray in planting areas with a width less than ten feet. No overhead sprinkler irrigation systems shall be installed in median strips or islands ii. Irrigation Efficiency. For the purpose of determining the maximum applied water allowance, irrigation efficiency is assumed to be 0.75. Mixed irrigation system types shall be designed, maintained and managed to meet or exceed an average of 0.75 efficiency. iii. Equipment. (A) Water Meters. Separate landscape water meters shall be installed for all projects except for single-family homes or any project with a landscaped area of less than twenty five hundred square feet. (B) Controllers. Automatic control systems (solar or electric) . shall be required for all irrigation systems and must be able to accommodate all aspects of the design. Mechanical irrigation controllers are prohibited. . (C). Valves. Plants which require different amounts of water shall be irrigated by separate valves. If one valve is used for a given area, only plants with similar water use shall be used in that area.. (D) Anti -drain (check) valves shall be installed in strategic points to prevent low -head drainage. (E) Sprinkler Heads. Heads shall have application rates appropriate to the plant water use requirements within each control valve circuit. Sprinkler heads shall be selected for proper area coverage, application rate, matched precipitation rate nozzles, operating pressure, adjustment capability and ease of maintenance. (F) Scheduling Aids: Soil Moisture Sensing Devices. It is required that soil moisture sensing devices be installed on all turfgrass sites exceeding 1.0 acres(43,560 square feet) of planted area. (G) Scheduling Aids: ETo Controllers. It is recommended that ETo controllers be considered for installation on all sites. 417 (H) Equipment in Publicly Maintained Areas. Irrigation .equipment in areas which may or will be maintained by the city. shall conform to specifications .of the city. (1) Emitters. Emitters shall have application rates appropriate to the plant water use requirements within each control valve circuit. Emitters shall be selected for specific area coverage (individual plants), application rates, operating pressure, adjustment capability and ease of maintenance. b. Recycled Water. i. The installation of recycled water irrigation systems (dual distribution systems) shall be required to allow for the current and future use of recycled water, unless a written exemption has been granted as described in the following subsection ii. ii. Irrigation systems shall make use of recycled water unless a written exemption has been granted by the water district having jurisdiction, stating that recycled water meeting all health standards is not available and will not be available in the foreseeable future. iii. Recycled water irrigation systems shall be designed and operated in accordance with all local and state codes and be applicable to all of the provisions of this ordinance. c. Irrigation Design Plan Specifications. Irrigation systems shall be designed to be consistent with hydrozones. The irrigation design plan shall be drawn on project base sheets. It shall be separate from, but use the same format as, the landscape design plan. The scale shall be the same as that used for the landscape design plan. The irrigation design plan shall accurately and clearly identify: i. Location and size of separate water meters for the landscape; ii. Location, type, and size of all components of the irrigation system, including automatic controllers, main and lateral lines, valves, sprinkler heads, moisture sensing devices, rain - switches, quick couplers, and backflow prevention devices; iii. Static water pressure at the point of connection to the water supply; iv. Flow rate (gallons per minute), application rate (inches per hour), and design operating pressure (psi) for each station; v. Recycled water irrigation systems. 6. Grading Design Plan. Grading design plans satisfying the city/county grading ordinance and the following conditions shall be submitted as part of the, landscape documentation package. a. A grading design plan shall be drawn on project base sheets. It shall be separate from but use the same format as the landscape design plan. b. The grading design plan shall indicate finished configurations and elevations of the landscaped area, including the height of graded slopes, drainage patterns, pad elevations, and finish grade. 7. Soil Analysis. 418 a. A soil analysis satisfying the following conditions should be submitted as part of the landscape documentation package: i. Determination of soil texture, indicating the available water holding capacity. ii. An approximate soil infiltration rate (either) measured or derived from soil texture/infiltration rate tables. A range of infiltration rates shall be noted where appropriate. iii. Measure of pH and total soluble salts. 8. Certification. a. A licensed landscape architect, designer of record or designated city staff shall conduct a final field observation and shall provide a certificate of substantial completion to the city. The certificate shall specifically indicate that plants were installed as specified, that the irrigation system was installed as designed, and that an irrigation audit has been performed, -along with a list of any observed deficiencies. b. Certification shall be accomplished by completing a certificate of substantial completion and delivering it to the city, to the retail water supplier, and to the owner of record. A sample of such a form, which shall be provided by the city is: 419 EXAMPLE CERTIFICATE OF SUBSTANTIAL COMPLETION Project Site: Project Number: Project Location: Preliminary Project Documentation Submitted: (Check indicating submittal) 1. Total Maximum Applied Water Allowance: (100 cubic feet per year) 2. Estimated Applied Water Use by Hydrozone: Turfgrass: 100 cubic feet/year Recreational Turfgrass: 100 cubic feet/year Exotic Trees/Shrubs/Groundcovers: 100 cubic feet/year Desert Plants: 100 cubic feet/year Water features: 100 cubic feet/year Other 100 cubic feet/year 3. Estimated Total Water Use: (100 cubic feet per year) 4. Landscape Design Plan 5. Irrigation Design Plan 6. Grading Design Plan 7. Soil Analysis (optional) Post -Installation Inspection: (Check indicating substantial completion) A. Plants installed as specified B. Irrigation system installed as designed dual distribution system for recycled water minimum run-off or overspray Project submittal package and a copy of this certification has been provided to owner/manager and local water agency. 420 EXAMPLE CERTIFICATE OF SUBSTANTIAL COMPLETION(Page #2) Comments: I/we certify that work has been installed in accordance with the contract documents: Contractor Signature Date State License Number /we certify that based upon periodic site observations, the work has. been substantially completed in accordance with the Water Efficient Landscape Ordinance and that the landscape planting and irrigation installation conform with the approved plans and specifications. Landscape Architect Signature Date State License Number or Designer of Record or Designated City Staff ' I/we certify that I/we have received all of the contract documents and that it is our responsibility to see that the project is maintained in accordance with the contract. documents. Owner Signature Date Note: Authority cited: Section , Government Code. Reference: Section Government Code. 421 D. Public Education. 1. Publications. a. The city, county or water district will, upon request, provide information to the public regarding the design, installation, and maintenance of water efficient landscapes. b. Information about the efficient use of landscape water shall be provided to water users throughout the community. c. The landscape architect will provide a site -specific landscape irrigation package for the homeowner or irrigation system operator. The. package will include a set of drawings, a recommended monthly irrigation schedule and a recommended irrigation system maintenance schedule. d. Irrigation Schedules. Irrigation schedules satisfying the following conditions shall be submitted as part of the landscape irrigation package: i. An annual irrigation program with monthly irrigation schedules shall be required for the plant establishment period, for the established landscape, and for any temporarily irrigated areas. The irrigation schedule shall: (A) Include run time (in minutes per cycle), suggested number of cycles per day, and frequency of irrigation for the station; and (B) Provide the amount of applied water (in hundred cubic feet) recommended on a monthly and annual basis. (C) Whenever possible, irrigation scheduling shall incorporate the use of evapotranspiration data such as those from the California Irrigation Management Information System (CIMIS) weather stations to apply the appropriate levels of. water for different climates. (D) Whenever possible, landscape irrigation shall be scheduled between 10:00 p.m.' and 5:00 a.m. to avoid irrigating during times of high wind or high temperature. e. Maintenance Schedules. A regular maintenance schedule satisfying the following . conditions shall be submitted as part of the landscape documentation package: i. Landscapes shall be maintained to ensure water efficiency. A regular maintenance schedule shall include but not be limited to checking, adjusting, cleaning and repairing equipment; resetting the automatic controller, aerating and dethatching turf areas; replenishing mulch; fertilizing; pruning; and weeding in all landscaped areas. H. Repair of irrigation equipment shall be done with the originally specified materials or their approved equivalents. 2. Information shall be provided about designing, installing, and maintaining water efficient landscapes. Note: Authority cited: Section Government Code. Reference: Section . (Ord. § 1 (Exh. _) (part), ) 4412 0.00.040 Provisions for existing landscapes. A. Water Management. All existing landscaped areas which exceed 1.0 acre(43,560 square feet), including golf courses, green belts, common areas, multifamily housing, schools, businesses, public works, parks, and cemeteries may be subject to a landscape irrigation audit at the discretion of the water purveyor if the water purveyor has determined that the annual maximum applied water allowance has been exceeded for a minimum of 2 consecutive years. At a minimum, the audit shall be conducted by a certified landscape irrigation auditor and shall be in accordance with the California Landscape Irrigation Auditor Handbook, the entire document which is hereby incorporated by reference. (See Landscape Irrigation Audit Handbook, Department of Water Resources, Water Conservation Office (June, 1990, Version 5.5.) B. Water Waste Prevention. Water waste resulting from inefficient landscape irrigation including run-off, low -head drainage, overspray, or other similar conditions where water flows onto adjacent- property, nonirrigated areas, walks, roadways, or structures shall be prohibited. All broken heads and pipes must be repaired within 72 hours of notification. Penalties for violation of these prohibitions shall be established. Note: Authority cited: Section , Government Code. Reference: Section , Government Code. (Ord. § _ (Exh. _) (part), ) 0.00.050 Fees for initial review and program monitoring(Optional). The following fees are deemed necessary to review landscape documentation packages and monitor landscape irrigation audits and shall be imposed on the subject applicant, property owner or designee. A. A landscape documentation package review fee will be due at the time initial project application submission to the planning and development department. B. If a landscape documentation package is not submitted prior to the start of landscape construction work, for those persons required to submit a package, a late submittal fee of twice the review fee shall be required. - C. The city council, by resolution, shall establish the amount of the above fees in accordance with applicable law. (Ord. 220 § 1 (Exh. A) (part), 1993) 0.00.060 Appeals. Decisions made by the planning and development director or public works director . may be appealed by an applicant, property owner(s), or designee(s) of any applicable project to the planning commission and thereafter the city council by an application in writing to the planning and development director and city clerk of the city council respectively within fifteen days from the date of notification of decision. (Ord. § _ (Exh. _) (part), ) 423 0.00.070 Effective Date. This ordinance will become effective on All plans approved after are subject to the provisions of this ordinance. 424 _ REPORT/INFORMATIONAL ITEM: 15 INVESTMENT ADVISORY BOARD Meeting October 8, 2003 I CALL TO ORDER Regular meeting of the La Quinta Investment Advisory Board was called to order at the hour of 5:30 P.M. by Chairman Mahfoud, followed by the Pledge of Allegiance. PRESENT: Board Members Moulin, Olander, Mahfoud and Chairman Lewis (5:33) ABSENT: Board Member Deniel OTHERS PRESENT: John Falconer, Finance Director and Vianka Orrantia, Secretary II PUBLIC COMMENTS III CONFIRMATION OF AGENDA IV CONSENT CALENDAR A. Approval of Minutes of Meeting on September 10, 2003 for the Investment Advisory Board. MOTION - It was moved by Board Members Moulin/Olander to approve the Minutes of September 10, 2003. Motion carried unanimously. V. BUSINESS SESSION A. Transmittal of Treasury Report for August 2003 Mr. Falconer informed the Board that there were no purchases or sales in the month of August and there was a large debt service payment due September 1, the money was sent at the end of August to the Trustee, after the LAIF draw down. MOTION - It was moved by Board Members Olander/Moulin to approve, receive and file the Treasury Report for.August 2003. Motion carried unanimously. 425 Investment Advisory Board OCOTOBER 8, 2003 Minutes VI CORRESPONDENCE AND WRITTEN MATERIAL A. Month End Cash Report — September 2003 Mr. Falconer informed the Board that on page 09 of the Month End Cash Report, the LAIF report has been modified to reflect a two week tracking of the daily yield, which is currently at 1.60%. Noted and Filed B. Pooled Money Investment Board Reports — July 2003 Board Member Olander commented to the Board that the commercial paper has dropped from the previous month, which is down 6.54%. Board Member Mahfoud asked the Board if they had seen the item on page 3, reverses. Chairman Lewis replied to the Board that reverse repurchases periodically are reported. Board Member Moulin commented to the Board that the cash report numbers reflect the loans that dropped in July 10% and the report through August 31 reflect the loans now at 14%. Mr. Falconer commented to the Board that the report is for the entire PMI portfolio and the LAIF funds do not participate in the loans. Noted and Filed C. Update of Work Plan Considered at October 7, 2003 City Council Meeting Mr. Falconer informed the Board on the recent comments made at the City Council meeting. During the business session portion of the Council meeting, the work plan was approved as discussed at the previous Board meeting. Two comments were made, one from Mayor Adolph, who wanted to stress the safety of the portfolio and the second item, was the educational meetings; Councilman Osborne wanted to make a small modification that the educational meetings with Board Members should be on areas of managing the City funds. Staff had stated educational meetings were with investment advisors and Council wanted it changed to educational meeting with Board 2 r Investment Advisory Board Minutes OCOTOBER 8, 2003 members, two or three meetings which could be scheduled during the year with whom the Board suggested to meet with to discuss investment options. Board Member Lewis asked the Board 'if these comments were from the joint meeting that was held with the City Council. Mr. Falconer replied that these comments came from the City Council meeting on Tuesday, October 7. Mr. Falconer informed the Board that the only representative at the September 30 meeting was Board Member Moulin. Board Member Moulin advised the Board that Council Member Osborne asked why the Board was looking at money managers. Board Member Moulin replied to Council Member Osborne that there were several cities that used money managers, the Board would like to see what the managers might have to offer and also see if they could do anything for the City. Board Member Moulin also informed the Board that he had stated to the Council that there were several Board Members that thought this was a very good idea, the work plan was discussed and Mr. Falconer followed -up with a summary and that the Mayor's comments were directed towards the safety of principal. Board Member Moulin stated to the Board that this was also a primary concern for the Board and the first item in the Investment Policy. There was also a discussion of the yield not being high and the Investment Advisory Board and the Treasurer agreeing to protect principal and not risking principal to chase yield, which is why the Board has not currently purchased any commercial paper. Board Member Moulin also informed the Board that the City Council asked if it was necessary for the Board to meet monthly. With the exception of August and due to the lag in the information received the Board did not want to review information 2 to 3 months in arrears, therefore, it was important to meet monthly. Board Member Moulin also informed the Board that he informed the City Council of the upcoming RFP's for banking services. In response to Board Member Olander, Board Member Moulin advised the Board that Council Member Osborne was questioning the need for a money manager and Council Member Henderson wanted to know exactly what was going to be done. Board Member Moulin stated to the Board that there is reason for questions, due to the Board's 3 427 Investment Advisory Board Minutes OCOTOBER 8, 2003 current buy and hold policy, money managers have a tendency to buy and sell. Board Member Moulin reviewed the purchase of investments and how a money manager would fit into this current process. Mr. Falconer advised the Board that in next couple months, the Board's focus will be on the banking RFP's and the scheduled meeting with the auditors in December. Therefore, the Board could possibly schedule the money managers in the months of January or February. Mr. Falconer also advised the Board that it would be up to the Chairman and the Board for their recommendations as to who would make these presentations. Chairman Lewis asked the Board if they knew of any firms, that a brief line item could be discussed at the next scheduled meeting and than schedule the firms after the first of the year. Board Member Mahfoud suggested to the Board that there should also be criteria set for these firms, such as years of experience, track record, etc... Chairman Lewis advised the Board that based on the previous month's meeting minutes, these firms are coming to discuss what they can or cannot do for the City, not to sign a contract at the time of the presentation. Even if there is ,one the Board would like to use, the Investment Policy would have to be revised, approval would have to come from the City Council before someone could be signed on, if this is a service that could add value to the City. Mr. Falconer advised the Board that the City Council looks at these presentations as educational tools, there might be some things that the money manager does, that Staff can do. If the Board decides not to use a money manager, Staff could learn from their presentations. Chairman Lewis advised the Board that at some point and time the Board might have to look to other areas as the portfolio grows, this might be a good time review some options. Board Member Moulin advised the Board that he also commented to the City Council about SilverRock Ranch and how this could also have an effect. Noted and Filed 4 Investment Advisory Board OCOTOBER 8, 2003 Minutes Vill BOARD MEMBER ITEMS Chairman Lewis asked the Board for an update on the LAIF Conference trip. Mr. Falconer informed the Board that he and Board Member Deniel attended and due to the fact that she is currently on vacation, she had told him that she will update the Board by written summary at the next scheduled meeting. Chairman Lewis updated the Board on his current job change. Board Member Moulin advised the Board that both Fannie Mae and Freddie Mac have been getting continued publicity due to the financial deviations of Freddie Mac and that it appears that they are turning over responsibilities of supervision to Treasury instead of HUD. This has had an affect on Fannie Mae and is suffering, they have also advocated that the Federal Home Loan Banks be subject to the same supervision. Board Member Moulin also advised the Board that it shouldn't be a concern of the City or increases the risk of the investments in these corporations. Chairman Lewis stated that this was more of a positive move in treasuries. Board Member Olander stated to the Board that this has been one of the Board's concerns, can anyone get their hands around GSE's, including Federal Home Loan Bank. Board Member Moulin stated that the banking system is under the Treasury. If the banks have always had a multi jurisdiction, if they are insured by the FDIC, if it's a state bank and federally insured then they are examined by the division of the Treasury. Chairman Lewis advised the Board that national banks are examined by the Office of the Controller of Currency, (OCC) and can be examined by the FDIC, state banks are examined by the FDIC and state regulatory agencies. Board Member Moulin stated to the Board that it will be interesting as to which "a rm" will govern Fannie Mae and Freddie Mac. Vill Adjournment MOTION - It was moved by Chairman Lewis/Board Member Olander to adjourn the meeting at 5:56 p.m. Motion carried unanimously. Sub2-d by, Y Vianka Orrantia Secretary W �^i ri REPORT/INFORMATIONAL ITEM: /(00 CULTURAL ARTS COMMISSION MINUTES September 11, 2003 1. CALL TO ORDER A regular meeting of the Cultural Arts Commission was called to order at 7:00 p.m. in the Study Session Room of the La Quinta Civic Center. Chairperson Else Loudon presided over the meeting. Commissioner Reynolds led the Pledge of Allegiance. MEMBERS PRESENT: Commissioner Else Loudon Commissioner Nicolas Hemes Commissioner Elaine Reynolds Commissioner Sheldon Brodsky MEMBERS ABSENT: Commissioner Linda Young (excused absence) STAFF PRESENT: Dodie Horvitz, Community Services Director Hally Savio, Community Services Secretary II. PUBLIC COMMENT Kathy Dunham of the La Quinta Arts Association requested that the Commission develop an Artist's Directory for the City of La Quinta to be updated annually. She suggested that the Commission work with the La Quinta Arts Foundation to assist with this project. Chairperson Loudon commented that the Coachella Valley Arts Alliance is working on a similar project. Commissioner Reynolds suggested that the Chamber Newsletter could be used to advertise so interested La Quinta artists would be notified of the opportunity to be included in the directory. III. CONFIRMATION OF AGENDA 430 Cultural Arts Commission Meeting Minutes September 11, 2003 Page 2. IV. CONSENT CALENDAR A. Approval of Minutes of June 12, 2003 B. Financial Report for April 2003 C. Monthly Department Report for March 2003 It was moved by Commissioners Hemes/Reynolds to approve the Consent Calendar as submitted. Unanimous. V. PUBLIC HEARING - NONE VI. BUSINESS ITEMS A. Election of Vice Chair Chairperson Loudon opened nominations for Vice Chair.. Commissioner Reynolds nominated Commissioner Hemes. It was moved by Commissioners Reynolds/Loudon to appoint Commissioner Hemes as Vice Chairperson. Unanimous. B. Washington & Jefferson Street Bridge Railings Staff sought direction from the Commission as to the design for decorative bridge railings on the new Washington Street and Jefferson Street bridges. Commissioners viewed photographs of the existing railings. Commissioner Reynolds recommended that the mountain theme be continued on the new bridges. Commissioner Hemes also suggested that the future Eisenhower Drive bridge railings continue the same concept for uniformity in the City. , It was moved by Commissioners Reynolds/Brodsky that the existing bridge railing designs. be modified to fit the new Jefferson and Washington Street bridges. Unanimous. C. "A Day of Art in the Park" Commissioners were asked to support and participate in the La Quinta Art Association's "Day of Art in the Park" program (date to be determined). Commissioner Reynolds volunteered to attend and assist with this activity. Commissioners also discussed the recent Community Services Grant of $2,000 to the La Quinta Art Association. Commissioner Hemes suggested inviting a representative of the Association to a future meeting to recommend how these funds should be spent. Commissioner Brodsky will discuss with Kathy Dunham of the La Quinta Art Association. SACommunity Services\CAC\CACMIN.9.11.03.doc �- ?1 Cultural Arts Commission Meeting Minutes September 11, 2003 Page 3. D. Washington/Miles Potential Art Piece Commissioners discussed with staff the proposed art piece for the southeast corner of Washington Street and Miles Avenue, approved by the City Council in September, 2002. Since the final plan for the Residency Inn proposed for this site have not been approved, consensus of the Commission was to delay proposing an art piece for the location until the plans are approved and building permits have been issued. E. Veterans Day Event Director Horvitz apprised Commissioners of the Veteran's Day event being planned for the Civic Center Acknowledgement Area on November 11, 2003, and asked the Commissioners to participate by arranging for and coordinating entertainment for the event. Commissioner Hemes volunteered to contact the Marine Corps Band based at Twentynine Palms, and if they are unavailable, to contact the La Quinta High School Marching Band. It was moved by Commissioners Reynolds/themes that the Cultural Arts Commission try to arrange to have the Marine Corps Band and/or the La Quinta High School Marching Band play at the Veteran's Day Ceremony at the Civic Center on November 11, 2003, and for all Commissioners to attend and assist with this event. Unanimous. F. December Holiday.Event Staff sought direction from the Commission regarding musical entertainment as part of the annual Tree Lighting Ceremony on Friday, December 5, 2003 at the Civic Center. Chairperson Loudon suggested the City have a Holiday Vehicle Parade (passenger cars and golf carts only) in addition to the traditional Tree Lighting Ceremony. Tentative plans for the Parade were discussed, including vehicle entry fees, possible parade route, advertising, and ways to incorporate the tree lighting ceremony with a parade. Chairperson Loudon also requested that staff check out the possibility of changing the location of the holiday tree from the Civic Center Courtyard to the Amphitheater. Commissioner Hemes suggested including a holiday house decorative lighting contest judged by Council Members with prizes for the top three entries. SACommunity Services\CAC\CACMIN.9.11.03.doc e� 4 32 Cultural Arts Commission Meeting Minutes September 11, 2003 Page 4. Chairperson Loudon suggested the theme for the parade would be "Lets Light Up La Quinta" and would be open to all La Quinta businesses and residents. Volunteers from the community would also be welcome. Commissioners agreed to take the idea for the holiday parade forward to the City Council. It was moved by Commissioners Hemes/Reynolds that the Cultural Arts Commission participate in the tree lighting. ceremony on December 5, 2003, and provide entertainment in the form of a vehicle parade including automobiles and golf carts starting at the home of Council Member Terry Henderson through the streets of La Quinta and ending at the Civic Center Campus, to provide holiday choirs and refreshments served at the Senior Center, and to look at a secondary location for the City's Christmas tree in the Civic Center amphitheater. Unanimous. G. Artist Partnership Day Chairperson Loudon provided background on this annual event to encourage students to go into art careers, and announced the dates for this year's Artist Partnership Day have been set for Wednesday, October 22"d at the La Quinta Middle School, and Thursday, October 23d at La Quinta High School. It was moved by Commissioners Brodsky/Reynolds that all Commissioners will attend the Artist Partnership Day events on October 22" . and 23rd, and assist where necessary, including greeting the guests and attending lunch with the artists. Unanimous. Commissioner Brodsky left the meeting at 8:25 PM. H. Soliciting Donations for Special Events After brief discussion regarding donations, Commissioners agreed to wait and see the response to solicitations for the proposed Holiday Parade, and discuss this item further at the January, 2004 Commission meeting. Chairperson Loudon also asked that Commissioners bring ideas to the October 9th Commission meeting. I. Possible Artwork Locations Commissioners reviewed the list of possible art locations throughout the community compiled by former Commission members. Chairperson Loudon invited Commissioners to recommend sites for artworks. SACommunity Serv1ces\CAC\CACMIN.9.11.03.doc Z 4-33 200 Cultural Arts Commission Meeting September 11, Minutes Paggee. 55. Commissioner Reynolds suggested calling for art to upgrade the Civic Center Amphitheater similar to the City of Palm Desert's to make it adequate for future concerts. Commissioner Hemes pointed out that an architect would be needed for such a construction project. It was moved by Commissioner Reynolds/Hemes to recommend that the City Council bring in architects and or/ artists to give ideas on expansion of the amphitheater to make it suitable for concert in the park type events in the future. Unanimous. It was moved by Commissioner Hemes/Reynolds that the Silver Rock Ranch entrance site be considered for an art piece with the assistance of the RDA. Unanimous. J. Joint Meeting with Community Services Commission Commissioners discussed selection of a date for their requested joint meeting with the Community Services Commission to discuss entertainment for the annual holiday tree lighting event on Friday December 5, 2003. It was moved by Commissioners Reynolds/Hemes that the joint special meeting with the Community Services Commission be held at 7:00 PM on Monday, October 13th, to coincide with the regularly scheduled Community Services Commission meeting. Unanimous. VII. CORRESPONDENCE AND WRITTEN MATERIALS A. La Quinta Court Landscape plan Director Horvitz updated Commissioners on the progress on the La Quinta Court landscaping project, reporting that the City Council approved the recommendations of the Commission at their August 5, 2003 meeting. The landscape architect, Ray Lopez Associates, has begun working on the construction documents, and the Public Works department staff is working on permission from Caltrans to change the color of the decomposed granite in the "pork chop" area of the site. B. RFP for Arch Sculpture Modification Director Horvitz reported there has been no response to the RFP issued for the addition of a quail and palm trees to the arch sculpture at Fritz Burns Park. Staff will revise and advertise this project again. SACommunity Serv1ces\CAC\CACMIN.9.11.03.doc 4?4 . 5 Cultural Arts Commission Meeting Him itam September 11, 2003 Page 6. C. Memorial Art Piece for Fallen Officers Director Horvitz' informed Commissioners that the City Council, at its August 5, 2003 meeting, directed staff to issue an RFP for a suitable art piece to acknowledge the officers and fire fighters that serve the City of La Quinta. The proposals will be brought before the Cultural Arts Commission for consideration at a future meeting. D. Flyers for October Concert Series Flyers were distributed to Commissioners for the free concert series on Sundays in October to be presented at the La Quinta Middle School amphitheater. VIII. COMMISSIONER ITEMS Chairperson Loudon announced the Coachella Valley Arts Alliance annual dinner dance to be held on Saturday, November 1, 2003, at the Renaissance Esmerelda Resort in Indian Wells, to benefit children's arts education programs. Commissioners were invited to attend the event, which will include entertainment, opportunity drawings and a silent auction. XI. ADJOURNMENT - It was moved by Commissioners Hemes/Reynolds to adjourn the Cultural Arts Commission meeting. Unanimous. Meeting adjourned at 8:55 PM. NEXT MEETING INFORMATION: Thursday, October 9, 2003 La Quinta Civic Center Study Session Room Submitted by: Hally Savi Community Services Secretary SACommunity Serv1ces\CAC\CACMIN.9.11.03.doc 000, • i 4 OF CULTURAL ARTS COMMISSION MINUTES October 9, 2003 I. CALL TO ORDER A regular meeting of the Cultural Arts Commission was called to order at 7:00 p.m. in the Study Session Room of the La Quinta Civic Center. Chairperson Else Loudon presided over the meeting. Commissioner Brodsky led the Pledge of Allegiance. MEMBERS PRESENT: Commissioner Else Loudon Commissioner Nicolas Hemes Commissioner Elaine Reynolds Commissioner Sheldon Brodsky Commissioner Linda Young STAFF PRESENT: Dodie Horvitz, Community Services Director Hally Savio, Community Services Secretary PUBLIC PRESENT: Martin Langer 11. PUBLIC COMMENT 111. CONFIRMATION OF AGENDA IV. CONSENT CALENDAR A. Approval of Minutes of September 11, 2003 B. Financial Reports for August & September 2003 C. Monthly Department Report for August 2003 It was moved by Commissioners Hemes/Reynolds to approve the Consent Calendar as submitted. Unanimous. V. PUBLIC HEARING -NONE Cultural Arts Commission Meeting Minutes October 9, 2003 Page 2. VI. BUSINESS ITEMS D. Amphitheater Improvements (This item was taken out of order.) Architects Reuel Young and Michael McAuliffe, of Interactive Design Corporation were invited by Commissioner Reynolds to give a presentation of the amphitheater project now underway that they designed for the City of Palm Desert Civic Center. The presentation included a slideshow of the $2.2Million project, featuring teflon-coated fabric roof segments. Following the slideshow, Commissioners discussed with architects the feasibility of creating a smaller venue for La Quinta's Civic Center and expanding the project over time as the City's budget allows. Martin Langer, producer of the City's Fall Concert Series, commented that Commissioners should first determine what kind of facility is desired, and how it will be utilized. A. Veteran's Day Ceremony Commissioner Hemes reported he was unable to book the Marine Corps Band for the November 11" Civic Center Veteran's Ceremony. Chairperson Loudon will contact and arrange for the La Quinta High School Marching Band to play for the ceremony on Veteran's Day. It was moved by Commissioners Hemes/Reynolds that the Commission will arrange for the marching band and commit to attend and assist with the Veteran's Day Ceremony on November 111h from 1:00 to 3:00 PM. B. Tree Lighting Ceremony Director Horvitz informed Commissioners that the City Council, at its meeting of October 9", considered the Commission's idea for a Holiday Parade to replace the traditional Tree Lighting Ceremony, and suggested that perhaps a parade can be added to the Commission's Work Plan for next year, with planning for the event to begin in July, 2004. For this year, the Council directed the Commission to assist with the Tree Lighting Ceremony on Friday, December 5" by arranging for and hosting the entertainment. After discussion by Commissioners, consensus was not to attend the Special Joint Meeting with the Community Services Commission scheduled for U:2 \\CLQADMFSI\SHARED\Community Services\CAC\CACMIN.10.09.03.doc 437 Cultural Arts Commission Meeting October 9, 2003 Minutes Page 3. Monday, October 13th, as more time was needed to research and arrange for entertainment for the Tree Lighting Ceremony on Friday, December 5". Items of discussion included local theater groups, the Truman Elementary School Choir and possible donations from local businesses of trees and/or holiday flowers to decorate the Civic Center. C. Civic Center Clock Tower Commissioner Young presented information from her research on the Civic Center Clock Tower project. She reported the minimum price for this project would be $70,000, with a six-month delivery time. The Clock Tower would be 25' to 30' in height, and would support artist wind chimes or sculptures. Commissioner Young recommended sending the idea to the Council for consideration. It was moved by Commissioners Young/Reynolds to present findings to the Council to see if they want to proceed with the Clock Tower project at this time. Motion carried, with Commissioner Brodsky dissenting. E. Soliciting Donations for Special Events Chairperson Loudon discussed having Commissioner Young compose a letter of solicitation for use by the Commission to solicit donations for special events, and suggested this item be added to the November Agenda. VII. CORRESPONDENCE AND WRITTEN MATERIALS A. Joint Meeting with Community Services Commission Cultural Arts Commissioners will not attend this scheduled special meeting on Monday, October 13, 2003. B. Santa Rosa & San Jacinto National Monument Annual Celebration Commissioners received an invitation to attend the Santa Rosa and San Jacinto National Monument Visitors Center Open House on Saturday, October 25, 2003. C. Building Industry Association Letter Commissioners received a letter concerning City street obelisks from the Executive Director of the Building Industry Association's Desert Chapter. \\CLQADMFSI\SHARED\Community Services\CAC\CACMIN.10.09.03.doc 408 Cultural Arts Commission Meeting Minutes October 9, 2003 Page 4. VIII. COMMISSIONER ITEMS Chairperson Loudon and Commissioner Hemes discussed plans for Artist Partnership Day at La Quinta Middle School on Wednesday, October 22"d, and La Quinta High School on Thursday, October 23`d. Five artists are scheduled on the program for the Middle School. The High School program will feature La Quinta artists H. Andre Blanche and John Weidenhamer. Luncheon following the morning program will be at La Quinta Resort. In answer to an inquiry from Chairperson Loudon, staff reported that work on the plans for landscape improvements near LG's Steakhouse is ongoing. Commissioner Reynolds announced she will be out of the country for the November 13' Commission meeting. XI. ADJOURNMENT It was moved by Commissioners Young/Brodsky to adjourn the Cultural Arts Commission meeting. Unanimous. Meeting adjourned at 9:10 PM. NEXT MEETING INFORMATION: Thursday, November 13, 2003 La Quinta Civic Center Study Session Room Submitted by: Hally Savill:::o Community Services Secretary \\CLQADMFSI\SHARED\Community Services\CAC\CACMIN.10.09.03.doc a DEPARTMENT REPORT: 3 " A DECEMBER 2 DECEMBER 5 DECEMBER 5 DECEMBER 6 DECEMBER 16 JANUARY 6 JANUARY 20 FEBRUARY 3 FEBRUARY 17 CITY COUNCIL'S UPCOMING EVENTS CITY COUNCIL MEETING HOLIDAY OPEN HOUSE 11:30 A.M. - 3:30 P.M. CITY CHRISTMAS TREE LIGHTING 6:00 P.M. - 8:00 P.M. EMPLOYEE RECOGNITION BANQUET CITY COUNCIL MEETING CITY COUNCIL MEETING CITY COUNCIL MEETING CITY COUNCIL MEETING CITY COUNCIL MEETING 4 9 December 2003 La Quinta City Council Monthly Planner Sun Monda day y Tuesday Wednesday Thursday Friday --7 Saturday 2 3 4 5 6 2:00 PM City Council Meeting 10:00 AM ALRC 12:00 PM SunLine - Adolph 11:30 AM - 3:30 PM Employees Recognition Holiday Open House Banquet 6:00 PM - 8:00 PM Christmas Tree Lighting Ceremony 9 10 11 12 13 7 8 7:30 AM CVEP-Adolph 7:00 PM Mosquito 9:00 AM RCTC- 12:00 PM Energy/Envi- 10:00 AM Pub. Sfty- Abate. -Perkins Henderson Sniff Perkins 7:00 PM Planning 5:30 PM Investment 7:00 PM Cultural Arts 12:00 PM Transp.- Commission Advisory Board Commission Perkins 6:00 PM League - Henderson 7:00 PM Com. Serv. Comm. 14 15 16 17 18 19 20 9:00 AM CVA-Henderson 3:00 PM Historic Preser- 2:00 PM City Council vation Commission Meeting 21 22 23 24 25 26 27 7:00 PM Planning Commission 0 0 0 1st Day of Winter Christmas Eve Christmas Day Extended Christmas (City Hall OPEN) (City Hall CLOSED) Holiday (City Hall CLOSED) 28 29 30 31 6:00 PM CVAG-Exec Com -Adolph November 03 January 04 S S M T W T F S S M T W T F S 1 8 2 3 4 5 6 7 8 1 5 9 10 11 12 13 14 15 22 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 . New Years Eve (City Hall OPEN) I HWHII I ... ..:,a. I i I i i 23 24 25 26 27 28 29 30 ME '... - i 18 19 20 21 22 23 24 25 26 27 28 29 30 31 ME I I Printed by Calendar Creator Plus on 11/25/2003 440 January 2004 La Quinta City Council Monthly Planner ..... ..... Sunday Monday Tuesday Wednesday TIlUrsday . . . . . . . . . . . . Friday . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Saturday 2 3 December 03 February 04 9:00 AU - 4:00 PM SJSR NtI. Monument- S M T W T F S S M T W T F S Henderson 1 2 3 4 5 6 1 2 3 4 7 8 9 10 11 12 13 • 8 10 11 16 17 18 19 20 15 16 17 18 5 6 7 •9 12 13 14 19 20 21 New Years Day Extended New Years Holiday (City Hall 14 15 21 22 23 24 25 26 27 22 23 24 25 26 27 28 (City Hall CLOSED) CLOSED) 28 29 30 31 29 4 5 6 7 8 9 10 2:00 PIVI City Council 10:00 AM ALRC 12:00 PM Energy/Envi- Meeting Sniff 7:00 PIVI Cultural Arts Commission 1 12 13 14 15 16 17 7:30 AM CVEP-Adolph 7:00 PM Mosquito 9:00 AM RCTC- 3:00 PM Historic Preser- 10:00 AM Pub. Sfty- Abate. -Perkins Henderson vation Commission Perkins 7:00 PM Planning 5:30 PM Investment 12:00 PM Transp.- Commission Advisory Board Perkins 3:00 PM Mtns. Con -Sniff 6:00 PM League - Henderson 7:00 PIVI Com. Serv. Comm. 18 19 20 21' 22 23 24 9:00 AM CVA-Henderson 9:00 AM LAFCO- 2:00 PM City Council Henderson Meeting Martin Luther King's Birthday (CITY HALL CLOSED) 25 26 27 28 29 30 31 6:00 PM CVAG-Exec 7:00 PM Planning 12:00 PM CVAG Human/ Com-Adolph Commission Comm -Osborne 12:00 PM Sunline-Adolph 4:00 PM ORRA Airp- Osborne ... .. . ....... . Printed by Calendar Creator Plus on 11/25/2003 4 d 1 February .2004 La Quinta City Council Monthly Planner .. ... .. ....... .. •.. 1 2 3 4 5 6 7 2:00 PM City Council 10:00 AM ALRC Meeting 8 9 10 11 12 13 14 7:30 AM CVEP-Adolph 7:00 PM Mosquito 9:00 AM RCTC- 12:00 PM Energy/Envi- 10:00 AM Pub. Sfty- Abate. -Perkins Henderson Sniff A* Perkins 7:00 PM Planning 5:30 PM Investment 7:00 PM Cultural Arts 12:00 PM Transp.- Commission Advisory Board Commission Valentines Day Perkins 6:00 PM League - Henderson 7:00 PM Com. Serv. Comm. 15 16 17 18 19 20 21 9:00 AM CVA-Henderson 3:00 PM Historic Preser- 2:00 PM City Council vation Commission Meeting President's Day (CITY HALL CLOSED) 22 23 24 25 26 27 28 6:00 PM CVAG-Exec 7:00 PM Planning 12:00 PM CVAG Human/ 9:00 AM LAFCO- Com-Adolph Commission Comm -Osborne Henderson 12:00 PM Sunline-Adolph 4:00 PM DRRA Airp- Osborne • 29 S.i { ii IEE€j€il �IlI i�jIIiIlI'II�Il E:I{I�/II!.{I! IIjj1 ..ly, I �{�I{ ! �IjjII•{IiI�'�!.! �I! I III �• I`F{i;l`•! '�€€I{ I iI� !` 'I` ! " I `I`• �'� I � •i' • !' � `I 'I• �I'i! ' • {' ;•' � •'I�I�S��`�I I •' iiI I, i� {�:i iI' '•! !! j�I rIl4! �li4}{! ai January ry Ii { March •l{ �I {! i!I �I!{ .l4j``�` I{j,���{!! j!{{! � i{ I!{! I{i { EI!iI!i1 y1({!i ii1 S M T W T 1 F S 2 3 S M T W T F S 1 2 3 4 5 6 i• 1I .l{{�l!• {Ij` {!�1 !!I'I! iI. j{ iI4i '!{I ! .I E• 45678910 i l' 78910111213 { ' !�=!•I�t t111 12 13 14 15 19 20 21 22 16 17 23 24 14 15 21 22 16 17 18 19 20 23 24 25 26 27 {��ti=; { �l!!!{E�I{{I '{ �I1 18 5 272829 30 31 28 2931 i� I! E II.! {;I! :I;I!='��Il�{SII 4�{i1 I• ' ifi !j`ii i : . ! II[ !OM! Printed by Calendar Creator Plus on 11/25/2003 44q T UNCIL/RDA MEETING DATE: December 2, 2 0 0 3 tee'solutions M TITLE: Public Hearing to Consider Adoption of Certifying a Mitigated Negative claration of Environmental Impact for Environmental Assessment 2002-462, Development Principles and esign Guidelines for Specific Plan 2002-062 and Development Plans for Site Development Permit 2002- 54, Subject to Findings and Conditions of Approval, W Allow a Commercial Shopping Center on a 10.7 Acre Site, Located at the Southwest Corner of • efferson Street and Fred Waring Drive. Applicant: • efferson-Waring, LLC MENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Staff recommends that this item be continued to January 20, 2004 meeting to allow the applicant additional time to revise the project as requested by the City Council at their November 4, 2003 meeting. Respectfully submitted, Herfng—n munity Development Director Approved for submission by: Mark Weiss, Acting City Manager PH 1 443 COUNCIL/RDA MEETING DATE: December 2, 2003 Public Hearing to Consider Adoption of an Ordinance Approving Zoning Code Amendment 2003-079, an Amendment to the Following La Quinta Municipal Code Sections: 1) 9.160.020, Table 9-17.7, Relating to Christmas Lights; 2) 9.40.040, Table 9-1, Other Uses — Adding Churches as Conditionally Permitted; 3) 9.60.100(D)(1), to Include Attached and Detached Guesthouses; and 4) 13.12.160.13, Extension of Time for Tentative Tract Maps as Granted by the Community Development Department RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Move to take up Ordinance No. by title and number only and waive further reading. Move to introduce Ordinance No. on first reading approving Amendments to Sections 9.160.020 (Table 9-17.7), 9.40.040 (Table 9-1), 9.60.100 and 13.12.160(B) of the La Quinta Municipal Code. FISCAL IMPLICATIONS: None. BACKGROUND AND OVERVIEW: The following is a list of proposed Code changes. These changes are proposed to clarify and carry out the intent of the existing Code, to comply with current practices or streamline the entitlement process. 9.160.020 Exempt signs The current Code provisions require that holiday decorations be removed seven days after the applicable holiday. The Council previously determined that this time period is too short and directed staff to modify the Code to allow additional time. The Planning 444 S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 3 - ZOA 079.doc Commission recommends that temporary holiday decoration be erected no earlier than 45 days from the applicable holiday and be removed 21 days after the applicable holiday. The Planning Commission recommends the following amendment: Excerpt of: Table 9-17 Exempt Signs Not Requiring a Sign Permit Sign Type Placement Maximum Illumination Area 7. Temporary decorations n/a n/a Yes clearly incidental and customary and commonly associated with any national, local or religious holiday, provided such signs are erected no earlier than forty-five (45) days from the applicable holiday and removed within seven twenty-one (21) days after the applicable holiday. Section 9.040.040, Table 9-1 The City allows houses of worship in residential districts subject to conditional use permits. However, Table 9-1 of the Zoning. Code does not list churches, temples or other houses of worship as uses allowed in residential districts. The Planning Commission recommends these uses be listed in the Table as uses conditionally permitted. Please note that the conditional use permit will continue to allow the City the ability to review theses uses, their location, and impacts. Proposed Addition to Table 9-1 Permitted Uses in Residential Districts P = Principal use District A = Accessory use C = Conditional use permit M = Minor use permit H = Home occupation permit S = Specific plan required �X = Prohibited use Very Medium - Low Low Medium High High Density Density Cove Density Density Density Residential Residential; Residential' Residential Residential Residential S:\CityMgr\STAFF REPORTS ONLY\PH 3 - ZOA 079.doc 0: 2 4 4 5 F(and Use[7�kRVL wa_p _ .RL wR_� Churches, C ... C _.... ,r_ ...... w C wr temples and other places of worshi Section 9.60.100 RM RM H C C C Currently, Section 9.60.100 of the La Quinta Zoning Code requires that detached guesthouses conform to "...all applicable building code standards and all development and design standards of the zoning district which they are located." In addition, this Section provides certain requirements (e.g. deed restrictions, no cooking facilities) that prevent the use of a guesthouse as a second dwelling. The Planning Commission recommends that attached guesthouses also comply with the current guesthouse provisions. The intent of the Code should apply to attached or detached guesthouses. The Planning Commission proposes the following language be added to Section 9.60.100: (8)(1) ""Guest house" means a detached or attached unit which has sleeping and sanitary facilities but no cooking facilities and which is used primarily for sleeping purposes by members of the family occupying the main building, their nonpaying guests, and domestic employees. " Section 13.12.160(B) Chapter 13.12 of the La Quinta Municipal Code provides the entitlement requirements for tentative tract maps; specifically, Section 13.12.160(B), sets forth the time extension requirements for tentative tract maps. Currently, all time extension requests require public hearings and review and approval by the Planning Commission and City Council. The Planning Commission proposes that the Community Development Director approve time extensions for tentative tract maps that have no changes. Time extension requests for tentative tract maps with changes would still require review and approval by both the Planning Commission and the City Council. Note that the Code currently allows the Community Development Director the authority to approve certain minor land divisions such as lot line adjustments, parcel mergers, and final map amendments. The Planning Commission proposes the following language be added in Section 13.12.160(B): "B. Request by the Subdivider. Before the expiration of the tentative map, the subdivider may apply for a one-year extension of time. Requests for extensions of time shall be filed with the community development department on either an approved form or by letter. All requests for extensions of time shall include: S:\CityMgr\STAFF REPORTS ONLY\PH 3 - ZOA 079.doc 446 1. A completed application form or letter 2. An identification of the length of time requested and reasons for the request; 3. The current processing fee as charged by the city for tentative map time extensions; 4. Twenty-five copies of the tentative map as approved by the city council. Additional copies may be requested subsequent to the application submittal. Extensions of time may be granted by the Community Development Director if there are no changes to the approved tentative map. The Director may waive some or all submittal material as noted in Section 1 through 4 herein. Extensions of time ar-e that include modifications to the approved tentative map are subject to the public notification procedure provided for in Section 13.12.090 and will be considered at a public hearing, to be held by the designated approval authority as set forth in Section 13.04.060. The approval authority may approve a maximum of three one-year time extensions and shall impose additional conditions of approval if such conditions are intended to maintain the public health, safety and welfare and/or to comply with current city, state or federal requirements. If, as part of the request for extension of the term of a tentative map, the subdivider requests changes or amendments to the tentative map or the conditions of approval for that map, the city may impose other conditions or amendments to the tentative map or the conditions of approval including the then -current standards and requirements for approval of tentative maps. Note that LQMC Section 13.04.060 (Review and approval authority) must be modified to reflect the change in the approval authority. Staff recommends the following modifications: Type of Action lReview Authority Approval Authority Tentative map City staff City council extensions Other responsible Community agencies Development Planning Director } Commission ' Planning Commission shall review tentative tract map when City Council is the Approval Authority 2 Community Development Director may only consider extension if there are no changes to the tentative tract map 04 S:\CityMgr\STAFF REPORTS ONLY\PH 3 - ZOA 079.doc 447 Planning Commission Action On November 18, 2003, the Planning Commission adopted Resolution 2003-103 recommending approval of the various Amendments to the Municipal Code. Public Notices This request was advertised in the Desert Sun newspaper on November 8, 2003 for the City Council meeting. Statement of Mandatory Findings The findings necessary to approve these Amendments can be made, as noted in the attached Resolution. FINDINGS AND ALTERNATIVES: Alternatives Available to the City Council include: 1. Move to take up Ordinance No. by title and number only and waive further reading. Move to introduce Ordinance No. on first reading approving Amendments to Sections 9.160.020 (Table 9-17.7), 9.40.040 (Table 9-1), 9.60.100 and 13.12.160(B) of the La Quinta Municipal Code; or 2. Do not adopt the above Ordinance of the City Council approving Amendments to Sections 9.160.020 (Table 9-17.7), 9.40.040 (Table 9-1), 9.60.100 and 13.12.160(B) of the La Quinta Municipal Code; or 4. Provide staff with alternative direction. Respectfully submi I Herm9h munity Development Director Approved for submission by: Mark Weiss, Acting City Manager 05 448 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, APPROVING AMENDMENTS TO SECTIONS 9.160.020 (TABLE 9- 17.7), 9.40.040 (TABLE 9-1), 9.60.100 AND 13.12.160.13 OF THE LA QUINTA MUNICIPAL CODE ZONING ORDINANCE AMENDMENT 2003-079 CITY OF LA QUINTA THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, DOES ORDAIN AS FOLLOWS: SECTION 1. These Municipal Code Amendments clarify and carry out the intent of the Code to comply with current practices, or streamline the entitlement process; and SECTION 2. That the La Quinta Municipal Code, be amended as contained in the attached Exhibit "A"; and SECTION 4. Environmental Determination. This Ordinance has compiled with the requirements of "The Rules to Implement the California Environmental Quality Act of 1970" in that the Community Development Department has determined that the Amendments to the Municipal Code are exempt pursuant to Chapter 2.6, Section 21080 of the Public Resources Code, California Environmental Quality Act (CEQA) Statutes, and Section 15268, ministerial project, of the CEQA Guidelines. PASSED, APPROVED and ADOPTED at a regular meeting of the La Quinta City Council held on this day of , 2003, by the following vote to wit: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta, California 06 W Ordinance No. Various Code Amendments Page 2 ATTEST: JUNE S. GREEK, CMC, City Clerk City of La Quinta, California (City Seal) APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California 07 S:\CITYMGR\STAFF REPORTS ONLY\PH 3 ORDINANCEMOC -4 5 0 Ordinance No. Zoning Code Amendment 2003-079 Adopted: EXHIBIT "A" Table 9-17, Section 9.160.020 is amended to include the following: Excerpt of: Table 9-17 Exempt Signs Not Requiring a Sign Permit Sign Type Placement` Maximum; Illumination Area 7. Temporary decorations clearly n/a n/a Yes incidental and customary and commonly associated with any t national, local or religious holiday, provided such signs are erected no earlier than forty-five (45) days from the applicable holiday and removed within twenty-one (21) days after the applicable holiday. Table 9-1, Section 9.40.040 is amended to include the following: Proposed Addition to Table 9-1 Permitted Uses in Residential Districts P = Principal use District A = Accessory use C = Conditional use permit M = Minor use permit H = Home occupation permit S = Specific plan required X = Prohibited use Very Medium - Low Low Medium High High Density Density Cove Density Density Density ResidentialResidential. Residential] Residential Residential Residential' `Land Use RVL RLC RM �RMH RH Churches, temples and other C C C C C C places of worship PAOscar\Zoning Issues\Christmas tights\Exhibit A Ord.doc 1. 8 5 Ordinance No. Zoning Code Amendment 2003-079 Adopted: Section 9.60.100(13)(1) is hereby amended to include the following: (B) (1) ""Guest house" means a detached or attached unit which has sleeping and sanitary facilities but no cooking facilities and which is used primarily for sleeping purposes by members of the family occupying the main building, their nonpaying guests, and domestic employees.A.. Section 13.12.160 (B) is hereby amended to include the following: "B. Request by the Subdivider. Before the expiration of the tentative map, the subdivider may apply for a one-year extension of time. Requests for extensions of time shall be filed with the community development department on either an approved form or by letter. All requests for extensions of time shall include: 1. A completed application form or letter; 2. An identification of the length of time requested and reasons for the request; 3. The current processing fee as charged by the city for tentative map time extensions; 4. Twenty-five copies of the tentative map as approved by the city council. Additional copies may be requested subsequent to the application submittal. Extensions of time may be granted by the Community Development Director if there are no changes to the approved tentative map. The Director may waive some or all submittal material as noted in Section 1 through 4 herein. Extensions of time are that include modifications to the approved tentative map are subject to the public notification procedure provided for in Section 13.12.090 and will be considered at a public hearing, to be held by the designated approval authority as set forth in Section 13.04.060. The approval authority may approve a maximum of three one-year time extensions and shall impose additional conditions of approval if such conditions are intended to maintain the public health, safety and welfare and/or to comply with current city, state or federal requirements. If, as part of the request for extension of the term of a tentative map, the subdivider requests changes or amendments to the tentative map or the conditions of approval for that map, the city may impose other .. 019 Ordinance No. Zoning Code Amendment 2003-079 Adopted: conditions or amendments to the tentative map or the conditions of approval including the then -current standards and requirements for approval of tentative maps. Section 13.04.060 is hereby amended to include the following: Type of Action £ Review Authority Approval Authority �) Tentative map City staff City council extensions Other responsible Community agencies Development Planning Director Commission' 1 Planning Commission shall review tentative tract map when City Council is the Anyroval Authority 2 Community Development Director may only consider extensions if there are no changes to the tentative tract maU ATTACMENT n DISPOSITION AND DEVELOPMENT AGREEMENT By and Between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, and CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company 882/015610-0061 (j v t� 380889.08 al1/26/03 1 DISPOSITION AND DEVELOPMENT AGREEMENT THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of , 2003 ("Effective Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company (the "Developer"). RECITALS The following recitals are a substantive part of this Agreement: A. Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health & Safety Code Section 33000, et seq.). B. Developer is a California limited liability company, specializing in the development of multi -use commercial projects. C. Agency owns fee title to that certain real property located southeast of the Miles Avenue and Washington Street intersection in the City of La Quinta, California 92253 (the "Property"). The Property is located in La Quinta Redevelopment Project No. 2 (the "Project Area"), which Project Area is located in the City of La Quinta, California. D. The Agency and the Developer desire by this Agreement for Developer to purchase the Property from Agency and to construct, complete, and operate thereon a commercial project containing a medical office/surgical facility, a development containing sanctuary villas, a mid -price suites hotel, a resort -style condominium/casitas development, two (2) sit-down restaurants, and two (2) single-family residential developments, with forty (40) of the single-family homes restricted for sale to "Eligible Buyers" at an "Affordable Housing Cost" (as those terms are defined below) (collectively, the "Project"). E. The Agency's disposition of the Property to the Developer, and the Developer's subsequent construction, completion and operation of the Project thereon, pursuant to the terms of this Agreement, are in the vital and best interest of the City of La Quinta and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. NOW, THEREFORE, the Agency and Developer hereby agree as follows: 100. DEFINITIONS "Affordable Homes" means the forty (40) single family homes in the Affordable Housing Component of the Parcel 7 Residential Development that are restricted for sale to Eligible Buyers. Any individual such home shall be referred to as an "Affordable Home." "Affordable Homes Mix" means the mix of Affordable Homes, which is attached hereto and incorporated herein as Attachment No. 6. 882/015610-0061 + v J 380889.08 al1/26/03 "Affordable Housing Component" means the component of the Parcel 7 Residential Development that consists of Developer's construction on a portion of Residential Parcel 7 of forty (40) single family homes restricted for sale to Eligible Buyers at an Affordable Housing Cost, as further described in the Scope of Development. "Affordable Housing Cost" means a purchase price which would result in monthly housing payments, including the cost for a thirty (30) year mortgage for that portion of the purchase price which is to be paid in the form of loan proceeds under currently prevailing mortgage loan rates or the interest rate of any below -market mortgage program for which such purchaser has obtained a first trust deed loan, of (i) not less than twenty-eight percent (28%) of the gross income of the household, nor more than thirty-five percent (35%) of one hundred ten percent (110%) of Riverside County median income adjusted for family size appropriate for the home, if the household earns not more than one hundred ten percent (110%) of Riverside County median income; or (ii) not more than thirty-five percent (35%) of the actual gross income of the household, if the gross income of the household exceeds one hundred ten percent (110%) of Riverside County median income. Sample calculations of an Affordable Housing Cost for the Affordable Homes are set forth in Attachment No. 19 hereto and in Exhibit B to the Declaration. "Agency" means the La Quinta Redevelopment Agency, 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, Health and Safety Code, Section 33000, et seq., and any assignee of or successor to its rights, powers and responsibilities. "Agency Loan" is defined in Section 401 hereof. "Agency Loan Amount" is defined in Section 401 hereof. "Agency's Conditions Precedent to Closing" means the conditions precedent to a Closing to the benefit of Agency, as set forth in Section 205.1 hereof. "Agreement" means this Disposition and Development Agreement between the Agency and the Developer. "Best Knowledge" or "Actual Knowledge" means, for purposes of a representation or warranty given hereunder, that such party has conducted a reasonable review of its files and has made reasonable inquiry of its employees and agents responsible for the acquisition, development and disposition of Sanctuary Villas Parcel 8, Sanctuary Villas Parcel 9, Casitas Parcel 2, Casitas Parcel 3, Casitas Parcel 4, Landscape Parcel C, Landscape Parcel E, Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, Medical Office/Surgical Facility Parcel 12, Medical Office/Surgical Facility Parcel A, Residential Parcel 5, Residential Parcel 7, Restaurant Parcel 1, Restaurant Parcel 13, Seeley Drive Parcel, or Suites Hotel Parcel. "Buyer Affordable Housing Documents" means those documents substantially in the form attached hereto and incorporated herein as Attachment No. 18, a complete set of which shall be required to be executed by each Eligible Buyer of one of the Affordable Homes. 882/015610-0061 380889.08 al 1/26/03 -2- v "Casitas Development" means the component of the Project that consists, collectively, of Developer's construction and subsequent operation on Casitas Parcel 2 of the Parcel 2 Casitas Development Component, on Casitas Parcel 3 of the Parcel 3 Casitas Development Component, and on Casitas Parcel 4 of the Parcel 4 Casitas Development Component. The Casitas Development shall contain approximately one hundred thirty-six (136) resort -style condominium/casitas units, as further described in the Scope of Development. "Casitas Parcel 2" means that approximately 2.27 acres of real property on which the Developer shall construct the Parcel 2 Casitas Development Component. Casitas Parcel 2 is depicted in the Site Map. "Casitas Parcel 3" means that approximately 3.44 acres of real property on which the Developer shall construct the Parcel 3 Casitas Development Component. Casitas Parcel 3 is depicted in the Site Map. "Casitas Parcel 4" means that approximately 2.91 acres of real property on which Developer shall construct the Parcel 4 Casitas Development Component. Casitas Parcel 4 is depicted in the Site Map. "City" means the City of La Quinta, a California municipal corporation. "Closing" means the close of escrow for the conveyance from the Agency to the Developer of (i) the Property, if Developer elects to purchase the Property pursuant to Option "A", or (ii) one or more Parcels, if Developer elects to purchase the Property pursuant to Option "B", as set forth in Section 202.5 hereof. "Closing Date" means the date Escrow closes for the conveyance from the Agency to the Developer of (i) the Property, if Developer elects to purchase the Property pursuant to Option "A", or (ii) one or more Parcels, if Developer elects to purchase the Property pursuant to Option "B", as set forth in Section 202.5 hereof. "Completion of Construction Date" is defined in Section 306 hereof. "Condition of Property Title" is defined in Section 203 hereof. "Contractor Bonds" means payment and performance bonds ensuring the completion of a Phase of Development. "Declaration" means that certain Declaration of Covenants, Conditions, and Restrictions for Property substantially in the form attached hereto and incorporated herein as Attachment No. 15, which Developer is required to execute as one of Agency's Conditions precedent to the Closing pursuant to which Agency shall convey to Developer Residential Parcel7. The Declaration shall be recorded against Residential Parcel 7 at said Closing. "Deed of Trust" means that certain Deed of Trust with Assignment of Rents and Rider Attached Hereto substantially in the form attached hereto and incorporated herein as Attachment No. 10, which secures Developer's repayment to Agency of the Agency Loan. The Deed of 882/015610-0061 4' r� 380889.08 al1/26/03 —3— Trust shall be recorded against Residential Parcel 7 at the Closing pursuant to which Agency conveys said Parcel to Developer. "Default" means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 601 hereof. "Design Development Drawings" means those plans and drawings to be submitted to the City with respect to the development of each Phase of Development, as set forth in Section 302 hereof. "Developer" means CP Development La Quinta, LLC, a California limited liability company, and its successors and assigns. "Developer Representatives" means, collectively, Developer's directors, engineers, analysts, officials, employees, agents, contractors, representatives, attorneys, advisers, and consultants, including an Environmental Consultant. "Developer's Conditions Precedent to Closing" means the conditions precedent to a Closing to the benefit of Developer, as set forth in Section 205.2. "Development Agreement" means the Development Agreement, substantially in the form attached hereto and incorporated herein as Attachment No. 13, which Developer is required to execute as one of Agency's Conditions Precedent to the Closing for, (i) the Property Escrow, if Developer elects to purchase the Property pursuant to Option "A", or (ii) the Initial Escrow, if Developer elects to purchase the Property pursuant to Option "B". "Disbursement Schedule" means that certain disbursement schedule, attached hereto and incorporated herein as Attachment No. 5, which sets forth the disbursement schedule and terms of disbursement of the Agency Loan. "Early Entry Agreement' means an Early Entry Agreement substantially in the form attached hereto and incorporated herein as Attachment No. 11. "Easement Agreement" means an Easement Agreement substantially in the form attached hereto and incorporated herein as Attachment No. 12, which Agency and Developer shall execute and record at or prior to the Closing for (i) the Property Escrow, if Developer elects to purchase the Property pursuant to Option "A", or (ii) the Initial Escrow, if Developer elects to purchase the Property pursuant to Option "B". "Eligible Buyer" means a buyer of one of the Affordable Homes that qualifies as a "person or family of moderate income" within the meaning of Health and Safety Code Section 50093 (i.e., household whose income, adjusted for family size appropriate to the home, does not exceed one hundred twenty percent (120%) of the Riverside County median income). "Environmental Consultant" means a consultant engaged by Developer, at Developer's sole cost and expense, which conducts the environmental investigations of the Property pursuant to Section 207.2 hereof. 882/015610-0061 Q 390889.08 a11/26/03 -4- V V "Escrow" is defined in Section 201 hereof. "Escrow Agent" is defined in Section 202 hereof. "Evidence of Financial Capability" means evidence reasonably satisfactory to Agency's Executive Director that Developer has the financial resources and commitments necessary for the acquisition of the Property and the subsequent development of each respective Phase of Development, as further described in Section 311. "FIRPTA" means the Foreign Investment in Real Property Transfer Act. "Good Funds" means a confirmed wire transfer of immediately available funds, cashier's or certified check drawn on or issued by the office of a financial institution located in Riverside County, or cash. "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State of California, the County of Riverside, the City, or any other political subdivision in which the Property, or any portion thereof, is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over the Agency, the Developer, and/or the Property, or any portion thereof. "Grant Deed" means a grant deed, substantially in the form attached hereto and incorporated herein by this reference as Attachment No. 4, pursuant to which Agency shall convey to Developer title to (i) the Property, if Developer elects to purchase the Property pursuant to Option "A", or (ii) one or more Parcels, if Developer elects to purchase the Property pursuant to Option "B". "Hazardous Materials" means any substance, material, or waste which is, or becomes, regulated by any local governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. 882/015610-0061 380889.08 a11/26/03 -5- "Initial Escrow" is defined in Section 201.2. "Landscape Parcel Cl shall mean that approximately .33 acres of Agency -owned real property on which City intends to install landscaping, upon City's receipt of the Landscaping Grants, and which Developer shall be required to maintain, subsequent thereto, as further described in Section 312. Landscape Parcel C is depicted in the Site Map. "Landscape Parcel E" shall mean that approximately .13 acres of Agency -owned real property on which City intends to install landscaping, upon City's receipt of the Landscaping Grants, and which Developer shall be required to maintain, subsequent thereto, as further described in Section 312. Landscape Parcel E is depicted in the Site Map. "Landscape Parcel H" shall mean that approximately .54 acres of Agency -owned real property on which City intends to install landscaping, upon City's receipt of the Landscaping Grants, and which Developer shall be required to maintain, subsequent thereto, as further described in Section 312. Landscape Parcel H is depicted in the Site Map. "Landscape Parcel 1" shall mean that approximately .12 acres of Agency -owned real property on which City intends to install landscaping, upon City's receipt of the Landscaping Grants, and which Developer shall be required to maintain, subsequent thereto, as further described in Section 312. Landscape Parcel I is depicted in the Site Map. "Medical OfficeISurgical Facility" means the component of the Project that consists of Developer's construction and subsequent operation on Medical Off ce/Surgical Facility Parcel 10 of the Parcel 10 Medical Office/Surgical Facility Component, on Medical Office/Surgical Facility Parcel 11 of the Parcel 11 Medical Office/Surgical Facility Component, on Medical Office/Surgical Facility Parcel 12 of the Parcel 12 Medical Office/Surgical Facility Component, and on Medical Office/Surgical Facility Parcel A of the Parcel A Medical Office/Surgical Facility Component. The Medical Office/Surgical Facility shall be a medical office and clinic that offers specialized medical services, as further described in the Scope of Development. "Medical Office/Surgical Facility Parcel A" means that certain approximately 6.47 acres of real property on which Developer shall construct the Parcel A Medical Office/Surgical Facility Component. Medical Office/Surgical Facility Parcel A is depicted in the Site Map. "Medical Office/Surgical Facility Parcel 10" means that certain approximately .73 acres of real property on which Developer shall construct the Parcel 10 Medical Office/Surgical Facility Component. Medical Office/Surgical Facility Parcel 10 is depicted in the Site Map. "Medical Office/Surgical Facility Parcel 11" means that certain approximately 1.23 acres of real property on which Developer shall construct the Parcel 11 Medical Office/Surgical Facility Component. Medical Office/Surgical Facility Parcel 11 is depicted in the Site Map. "Medical Office/Surgical Facility Parcel 1211 means that certain approximately .73 acres of real property on which Developer shall construct the Parcel 12 Medical Office/Surgical Facility Medical Component. Medical Office/Surgical Facility Parcel 12 is depicted in the Site Map. 882/015610-0061 460 380889.08 al1/26/03 -6- "Notice" shall mean a notice in the form prescribed by Section 701 hereof. "Option 'A` means Developer's option to purchase all of the Property, pursuant to the Property Escrow, as further described in Section 201.1 hereof. "Option Agreement" means the option agreement substantially in the form attached hereto and incorporated herein as (i) Attachment No. 14A, if Developer elects to purchase the Property pursuant to Option "A", or (ii) Attachment No. 14B, if Developer elects to purchase the Property pursuant to Option `B". In the event the Developer elects to purchase the Property pursuant to Option "A", the Option Agreement shall be recorded against the Property at the close of the Property Escrow. In the event the Developer elects to purchase the Property pursuant to Option "B", the Option Agreement shall be recorded against each set of Related Parcels, at the first close of Escrow that includes any one of such Parcels. "Option `B "' means Developer's option to purchase the Property in multiple phases, as further described in Section 201.2 hereof. "Outside Date for Closing" means the last date Escrow may close for the conveyance from Agency to Developer of, (i) the Property, if Developer elects to purchase the Property pursuant to Option "A", or (ii) each Parcel, if Developer elects to purchase the Property pursuant to Option "B". The Outside Date for Closing is referenced in Section 202.5 hereof and is set forth in the Schedule of Performance. "Parcel" means any of the following: Casitas Parcel2, Casitas Parcel3, Casitas Parcel 4, Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, Landscape Parcel I, Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, Medical Office/Surgical Facility Parcel 12, Residential Parcel s, Residential Parcel 7, Restaurant Parcel 1, Restaurant Parcel 13, Sanctuary Villas Parcel 8, Sanctuary Villas Parcel 9, Seeley Drive Parcel, Suites Hotel Parcel, or the Well Site Parcel. The term "Parcels" means all of the Parcels described in the immediately preceding sentence. "Parcel A Medical OfficelSurgical Facility Component" means the component of the Project that consists of Developer's construction and subsequent operation on Medical Office/Surgical Facility Parcel A of a portion of the Medical Office/Surgical Facility, as further described in the Scope of Development. "Parcel I Restaurant" means the component of the Project that consists of Developer's construction and subsequent operation on Restaurant Parcel 1 of a sit-down restaurant, as further described in the Scope of Development. "Parcel2 Casitas Development Component" means the component of the Project that consists of Developer's construction and subsequent operation on Casitas Parcel 2 of a portion of the Casitas Development, as further described in the Scope of Development. "Parcel3 Casitas Development Component" means the component of the Project that consists of Developer's construction and subsequent operation on Casitas Parcel 3 of a portion of the Casitas Development, as further described in the Scope of Development. 882/015610-0061 46.1 380889.08 a11/26/03 -7- "Parcel4 Casitas Development Component" means the component of the Project that consists of Developer's construction and subsequent operation on Casitas Parcel 4 of a portion of the Casitas Development, as further described in the Scope of Development. "Parcel S Residential Development" means the component of the Project that consists of Developer's construction and subsequent operation on Residential Parcel 5 of a single-family residential development containing thirteen (13) single-family homes. "Parcel 7 Residential Development" means the component of the Project that consists of Developer's construction and subsequent operation on Residential Parcel 7 of a single family residential development containing fifty-four (54) single family homes, forty (40) of which shall be the Affordable Homes. "Parcel 7 Residential Development Site Map" means the map of the Parcel 7 Residential Development, which map identifies the location of each of the homes to be constructed on Residential Parcel 7. The Parcel 7 Residential Development Site Map is attached hereto and incorporated herein as Attachment No. 7. "Parcel 8 Sanctuary Villas Component" means the component of the Project that consists of Developer's construction and subsequent operation on Sanctuary Villas Parcel 8 of a portion of the Sanctuary Villas Development, as further described in the Scope of Development. "Parcel 9 Sanctuary Villas Component" means the component of the Project that consists of Developer's construction and subsequent operation on Sanctuary Villas Parcel 9 of a portion of the Sanctuary Villas Development, as further described in the Scope of Development. "Parcel 10 Medical Office/Surgical Facility Component" means the component of the Project that consists of Developer's construction and subsequent operation on Medical Office/Surgical Facility Parcel 10 of a portion of the Medical Office/Surgical Facility, as further described in the Scope of Development. "Parcel 11 Medical Office/Surgical Facility Component" means the component of the Project that consists of Developer's construction and subsequent operation on Medical Office/Surgical Facility Parcel 11 of a portion of the Medical Office/Surgical Facility, as further described in the Scope of Development. "Parcel 12 Medical Office/Surgical Facility Component" means the component of the Project that consists of Developer's construction and subsequent operation on Medical Office/Surgical Facility Parcel 12 of a portion of the Medical Office/Surgical Facility, as further described in the Scope of Development. "Parcel 13 Restaurant" means the component of the Project that consists of Developer's construction and subsequent operation on Restaurant Parcel 13 of a sit-down restaurant, as further described in the Scope of Development. "Phase of Development" means any of the following components of the Project: Parcel A Medical Office/Surgical Facility Component, Parcel 1 Restaurant, Parcel 2 Casitas Development Component, Parcel 3 Casitas Development Component, Parcel 4 Casitas 882/015610-0061 -g- r) 380889.08 a11/26/03 Development Component, Parcel 5 Residential Development, Parcel 7 Residential Development, Parcel 8 Sanctuary Villas Component, Parcel 9 Sanctuary Villas Component, Parcel 10 Medical Office/Surgical Facility Component, Parcel 11 Medical Office/Surgical Facility Component, Parcel 12 Medical Office/Surgical Facility Component, or Parcel 13 Restaurant. "Preliminary Development Budget" means the preliminary budget attached hereto as Attachment No. 17 and incorporated herein by this reference. "Preliminary Title Report" means the preliminary title report issued by the Title Company that covers the Property, as described in Section 203. "Project" means the commercial development to be constructed on the Property that consists of a medical office/surgical facility ("Medical Office/Surgical Facility"); a development containing approximately twenty-six (26) sanctuary villas ("Sanctuary Villas Development"); a mid -price suites hotel containing approximately one hundred thirty-four (134) guest rooms ("Suites Hotel"); a resort -style condominium/casitas project containing approximately one hundred thirty-six (136) condominium/casitas units ("Casitas Development"); two (2) sit-down restaurants; a residential development containing thirteen (13) single-family homes ("Parcel 5 Residential Development"); and a residential development containing fifty-four (54) single- family homes ("Parcel 7 Residential Development"), forty (40) of which shall be restricted for sale to Eligible Buyers at an Affordable Housing Cost ("the Affordable Housing Component"). "Promissory Note" or "Note" means that certain Promissory Note substantially in the form attached hereto and incorporated herein as Attachment No. 99 which sets forth the terms and conditions for Developer's repayment to Agency of the Agency Loan. "Project Area" means the La Quinta Redevelopment Project No. 2, adopted by the City pursuant to the Redevelopment Plan. "Property" means that approximately 42.47 acres of real property located southeast of the Miles Avenue and Washington Street intersection in the City of La Quinta, California 92253. The Property is legally described in the Property Legal Description and depicted in the Site Map. "Property Environmental Reports" means the collective environmental investigations of the Property conducted pursuant to Section 207.2 hereof. "Property Escrow" is defined in Section 201.1 hereof. "Property Exceptions" is defined in Section 203. "Property Legal Description" means the description of the Property which is attached hereto as Attachment No. 1 and incorporated herein by this reference. "Purchase Price" means the price to be paid by Developer to the Agency in consideration of the Agency's conveyance to Developer of fee title to (i) the Property, if Developer elects to purchase the Property pursuant to Option "A", or (ii) a Parcel, if Developer elects to purchase the Property : pursuant to Option "B". The Purchase Price is referenced in 882/015610-0061 463 380889.08 a11/26/03 -9- Section 202.2 hereof. The Purchase Price for the Property and for each Parcel is set forth in Attachment No. 3 hereto. "Redevelopment Plan" means the Redevelopment Plan for the Project Area, adopted on May 16, 1989, by Ordinance No. 139, of the City Council of the City of La Quinta, which Redevelopment Plan is incorporated herein by reference. "Related Parcel" means a Parcel that has a substantially similar use as another Parcel. The following are groupings of Parcels deemed to be Related Parcels: (1) Sanctuary Villas Parcel 8 and Sanctuary Villas Parcel 9; (2) Casitas Parcel 2, Casitas Parcel 3, and Casitas Parcel 4; (3) Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12; (4) Residential Parcel 5 and6 Residential Parcel 7; and (5) Suites Hotel Parcel, Restaurant Parcel 1, and Restaurant Parcel 13. "Release of Construction Covenants" means the document which evidences the Developer's satisfactory completion of a Phase of Development, as set forth in Section 310 hereof, substantially in the form of Attachment No. 16 hereto which is incorporated herein by this reference. "Residential Parcel 5" means that certain approximately 2.19 acres of real property on which Developer shall construct the Parcel 5 Residential Development. Residential Parcel 5 is depicted in the Site Map. "Residential Parcel 7" means that approximately 8.99 acres of real property on which Developer shall construct the Parcel 7 Residential Development. Parcel 7 is depicted in the Site Map and in the Parcel 7 Residential Development Site Map. "Restaurant Parcel 1" means that approximately .92 acres of real property on which Developer shall construct the Parcel 1 Restaurant. Restaurant Parcel 1 is depicted in the Site Map. "Restaurant Parcel 13" means that approximately 1.12 acres of real property on which Developer shall construct the Parcel 13 Restaurant. Restaurant Parcel 13 is depicted in the Site Map. "Sanctuary Villas" means the component of the Project that consists, collectively, of Developer's construction and subsequent operation on Sanctuary Villas Parcel 8 of the Parcel 8 Sanctuary Villas Component and on Sanctuary Villas Parcel 9 of the Parcel 9 Sanctuary Villas Component. The Sanctuary Villas Development shall contain approximately twenty-six (26) villas, as further described in the Scope of Development. "Sanctuary Villas Parcel 8" means that certain approximately 3.74 acres of real property on which Developer shall construct and subsequently operate the Parcel 8 Sanctuary Villas Component. Sanctuary Villas Parcel 8 is depicted in the Site Map. 01 882/015610-0061 -10- t, 380889.08 al1/26/03 "Sanctuary Villas Parcel 9" means that certain approximately 1.10 acres of real property on which Developer shall construct and subsequently operate the Parcel 9 Sanctuary Villas Component. Sanctuary Villas Parcel 9 is depicted on the Site Map. "Schedule of Performance" means the Schedule of Performance attached hereto and incorporated herein as Attachment No. 20, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished. "Scope of Development" means the Scope of Development attached hereto and incorporated herein as Attachment No. 8, which describes the scope, amount and quality of development of the Project to be constructed by the Developer pursuant to the terms and conditions of this Agreement. "Seeley Drive" means the component of the Project which consists of Developer's development on the Seeley Drive Parcel of a public right of way, as further described in the Scope of Development. "Seeley Drive Parcel" means that approximately 2.76 acres of real property on which Developer shall construct a right-of-way and which shall subsequently be conveyed to the City, as a public right of way. The Seeley Drive Parcel is depicted in the Site Map. "Site Map" means the map of the Property, which is attached hereto as Attachment No. 2 and incorporated herein by this reference. The Site Map is not a tract map and the parcels depicted thereon are not legal parcels. Upon Developer's preparation of a tract map that creates legal parcels substantially consistent with the Site Map, Developer shall prepare legal descriptions for each Parcel, and Agency and Developer shall cooperate to attach such legal descriptions to any document where such descriptions are required. "Suites Hotel" means that component of the Project that consists of Developer's construction and subsequent operation on the Suites Hotel Parcel of a Hilton Homewood Suites, or such other comparable suites hotel that has a national reservation system, such as a Hawthorne Suites or a Staybridge Suites Hotel by Holiday Inn. The Suites Hotel shall contain approximately one hundred thirty-four (134) guest rooms, as further described in the Scope of Development. "Suites Hotel Parcel" means that approximately 3.3 5 acres of real property on which Developer shall construct the Suites Hotel. The Suites Hotel Parcel is depicted in the Site Map. "Title Company" is defined in Section 203 hereof. "Title Policy" is defined in Section 204 hereof. "Transfer" is defined in Section 703.1 hereof. "Unrestricted Homes" means the fourteen (14) single-family homes in the Parcel 7 Residential Development that are not restricted for sale to Eligible Buyers. Any individual such home shall be referred to herein as an "Unrestricted Home". 882/015610-0061 -1 1- 4 65 380889.08 a11/26/03 "Updated Report" means an update to the Preliminary Title Report, as described in Section 203. "Well Site Parcel" means that approximately .52 acres of real property which Developer shall dedicate to the Coachella Valley Water District. 200. CONVEYANCE OF THE PROPERTY 201. Disposition of the Property. Developer agrees to purchase the Property from the Agency, and the Agency agrees to sell to the Developer the Property, in accordance with and subject to all of the terms, covenants, and conditions of this Agreement. Developer shall have the election of (i) purchasing the Property from Agency all at once ("Option `A"') or, alternatively, (ii) purchasing the Property from Agency in multiple phases, with each phase containing one or more Parcels ("Option `B "'). If Developer elects to purchase the Property pursuant to Option "A", the terms and conditions of Section 201.1 shall apply. If Developer elects to purchase the Property pursuant to Option "B", the terms and conditions of Section 201.2 shall apply. The purchase price for the Property, and the purchase price for each of the individual Parcels, is set forth in Attachment No. 3 hereof (each, a "Purchase Price"). Each such Purchase Price represents the fair market value of the Property or the Parcel, as applicable. 201.1 Option "A" If Developer elects Option "A", Developer shall purchase the Property from Agency all at once, through one escrow (the "Property Escrow"), in accordance with the escrow provisions of Section 202 hereto. Notwithstanding the use of the term "Property Escrow" in this Section 201.1, all of the general requirements for each Escrow, as set forth in Section 202, shall apply to the Property Escrow, and every reference to an "Escrow" in this Agreement shall be deemed to include the "Property Escrow". Notwithstanding Developer's ownership of all of the Property, Developer shall be required to comply with the following limitations regarding its construction of the Project (for purposes of this Section 201.1, the term "construction" shall not include grading the Property and/or installing wet and dry utilities, all of which activities Developer shall be entitled to undertake pursuant to the Early Entry Agreement, as described in Section 305 hereof): (a) The First Permitted Phase of Construction. Upon Developer's acquisition of the Property, Developer may construct only the Suites Hotel, the Parcel 2 Casitas Development Component, the Parcel 3 Casitas Development Component, the Parcel 4 Casitas Development Component, the Parcel 8 Sanctuary Villas Component, the Parcel 9 Sanctuary Villas Component, the Parcel 1 Restaurant, the Parcel 13 Restaurant, and Seeley Drive (the "First Permitted Phase of Construction"). (b) The Second Permitted Phase of Construction. Upon Developer's completion of (i) the installation of the foundation for the Suites Hotel, as determined by City's Building Inspector, and (ii) the first pavement lift and the curbs and gutters of Seeley Drive, as verified by the City Engineer, Developer may construct, in addition to those items permitted to be constructed as part of the First Permitted Phase of Construction, (a) the Parcel A Medical Office/Surgical Facility Component, (b) any one (1) of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, or the Parcel 12 Medical Office/Surgical Facility Component, and (c) twenty (20) of the Affordable Homes on 882/015610-0061 + 6 380889.08 a11/26/03 -12- Residential Parcel 7 (the "Second Permitted Phase of Construction"). Notwithstanding anything herein to the contrary, Developer shall construct on Medical Office/Surgical Facility Parcel A one-third of the parking spaces to be developed thereon with the development of each of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, and the Parcel 12 Medical Office/Surgical Facility Component, whether such development occurs during this Second Permitted Phase of Construction or any subsequent phase of construction. (c) The Third Permitted Phase of Construction. Upon Developer's completion of the framing of all of the exterior walls of the Suites Hotel, as determined by the City's Building Inspector, Developer may construct, in addition to those items permitted to be constructed as part of the First Permitted Phase of Construction and the Second Permitted Phase of Construction, (i) the remaining twenty (20) Affordable Homes on Residential Parcel 7, and (ii) any one (1) of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, or the Parcel 12 Medical Office/Surgical Facility Component (the "Third Permitted Phase of Construction"). (d) The Fourth Permitted Phase of Construction. Upon Developer's completion of the construction of the exterior walls and roof of the Suites Hotel, as verified by Developer's project architect for the Suites Hotel and confirmed by City's Building Inspector, Developer may construct, in addition to those items permitted to be constructed as part of the First Permitted Phase of Construction, the Second Permitted Phase of Construction, and the Third Permitted Phase of Construction, (i) the Parcel 5 Residential Development, (ii) any or all of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, or the Parcel 12 Medical Office/Surgical Facility Component, and (iii) the Unrestricted Homes on Residential Parcel 7. 201.2 Option `B" If Developer elects Option "B", Developer shall be entitled to purchase the Parcels, and commence construction thereon of the applicable Phase of Development, in the order set forth in this Section 201.2; provided, however, that nothing herein is intended to permit Developer to elect not to purchase any or all of the Parcels. For purposes of this Section 201.21 the term "construction" shall not include grading the Property and/or installing wet and dry utilities, all of which activities Developer shall be entitled to undertake pursuant to the Early Entry Agreement, as described in Section 305 hereof. Notwithstanding anything herein to the contrary, each conveyance by Agency to Developer of one or more Parcels shall be effected through an escrow ("Escrow") in accordance with the provisions of Section 202 hereto. With the exception of the "Initial Escrow" (as that term is described in paragraph (a) below), which shall be opened within the time set forth in the Schedule of Performance, each such Escrow shall be opened within the time reasonably required to affect each applicable conveyance. (a) The Initial Escrow. Within the time set forth in the Schedule of Performance, Developer and Agency shall open an escrow for Agency's conveyance to Developer of the Seeley Drive Parcel, the Suites Hotel Parcel, Casitas Parcel 2, and the Well Site Parcel (the "Initial Escrow"). Pursuant to the Initial Escrow, Developer may, at its election, also purchase any or all of Casitas Parcel 3, Casitas Parcel 4, Sanctuary Villas Parcel 8, Sanctuary Villas Parcel 9, Restaurant Parcel 1 and/or Restaurant Parcel 13 (collectively, the "Initial Escrow 882/015610-0061 4 6 380889.08 al1/26/03 -13- Permitted Parcels"). In the event Developer elects not to purchase any or all of the Initial Escrow Permitted Parcels at the Initial Escrow, Developer may purchase any or all of such Parcels at any subsequent Escrow permitted by this Agreement. Notwithstanding the use of the term "Initial Escrow" in this Section 201.2, all of the general requirements for each Escrow, as set forth in Section 202, shall apply to the Initial Escrow, and each reference to an "Escrow" in this Agreement shall be deemed to include the Initial Escrow. (b) The Second Permitted Phase. Upon Developer's completion of (i) the installation of the foundation for the Suites Hotel, as determined by City's Building Inspector, and (ii) the first pavement lift and the curbs and gutters of Seeley Drive, as verified by the City Engineer, Developer may purchase (a) Residential Parcel 7, (b) Medical Office/Surgical Facility Parcel A, and (c) any one (1) of Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12. Notwithstanding Developer's acquisition of Residential Parcel 7, Developer shall be limited to the construction of twenty (20) of the Affordable Homes on Residential Parcel 7 until all of the exterior walls of the Suites Hotel have been framed, as determined by the City's Building Inspector ("Completion of the Suites Hotel Framing"). Notwithstanding anything herein to the contrary, Developer shall construct on Medical Office/Surgical Facility Parcel A one-third of the parking spaces to be developed thereon with the development of each of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, and the Parcel 12 Medical Office/Surgical Facility Component, whether such development occurs during this phase of construction or any subsequent phase of construction. (c) The Third Permitted Phase. Upon Developer's completion of the Suites Hotel Framing, Developer may construct the remaining twenty (20) Affordable Homes on Residential Parcel 7 and may purchase any one (1) of Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12. (d) The Fourth Permitted Phase. Upon Developer's completion of the construction of the exterior walls and roof of the Suites Hotel, as verified by Developer's project architect for the Suites Hotel and confirmed by City's Building Inspector, Developer may purchase (i) Residential Parcel 5 and (ii) any or all of Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12, and may construct the Unrestricted Homes on Residential Parcel 7. 202. Escrow. The parties shall open each Escrow with First American Title Company, at its office located at 3625 Fourteenth Street, Riverside, California 92502-0986, or another escrow company mutually satisfactory to both parties (the "Escrow Agent"). 202.1 Costs of Escrow. (i) Agency shall pay the premium attributable to the ALTA standard form policy of title insurance for the Property or the applicable Parcel(s), as set forth in Section 204 hereof, (ii) Developer shall pay for the documentary transfer taxes, if any, due with respect to the conveyance of the Property or said Parcel(s), as applicable, and (iii) Developer and Agency each agree to pay one-half of all other usual fees, charges, and costs which arise from the Escrow. 882/015610-0061 -14- ` 380889.08 a11/26/03 202.2 Payment of Purchase Price. On or before 5:00 p.m. on the business day preceding the applicable Closing Date (or such earlier time as required by Escrow) for the Property or one or more of the Parcels, Developer shall deposit with Escrow Agent the applicable Purchase Price in Good Funds, and such additional funds as may be required to meet Developer's portion of the closing costs as hereinafter provided. 202.3 Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency for each Escrow described herein, and the Escrow Agent to whom instructions are delivered is hereby empowered to act under this Agreement. Insurance policies for fire or casualty are not to be transferred, and Agency will cancel its own policies after the applicable Closing. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check from such account. If in the opinion of either party and/or the construction lender it is necessary or convenient in order to accomplish the Closing of the Property, or of any of the Parcels, and to specify the order of recording of closing and loan documents, such parry may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. Each Closing hereunder shall take place within thirty (30) days after the date when both the Agency's Conditions Precedent to the Closing and the Developer's Conditions Precedent to the Closing as set forth in Section 205 have been satisfied or waived by the respective parties. Escrow Agent is instructed to release Agency's escrow closing and Developer's escrow closing statements to the respective parties. 202.4 Authority of Escrow Agent. At each Closing, Escrow Agent is authorized to, and shall: (a) Pay and charge Developer and Agency for their respective shares of the premium of the applicable Title Policy and any endorsements thereto as set forth in Section 204 and any amount necessary to place title in the condition necessary to satisfy Section 203 of this Agreement. (b) Pay and charge Developer and Agency for their respective shares of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement. (c) Disburse funds, deliver one or more executed Option Agreement(s) to the Agency, and deliver and record the applicable Grant Deed(s) and the applicable Option Agreement(s) when both the Developer's Conditions Precedent to the Closing and the Agency's Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency. (d) At the Closing for, as applicable, the Property Escrow or the Initial Escrow only, deliver the executed Easement Agreement and Development Agreement to the Agency, and deliver and record the Easement Agreement and Development Agreement when 882/015610-0061 469 380889.08 a11/26/03 -15- both the Developer's Conditions Precedent to the Closing and the Agency's Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency. (e) At the Closing which includes Residential Parcel 7, deliver the executed Promissory Note, Deed of Trust, and Declaration to the Agency, and deliver and record the Deed of Trust and Declaration when both the Developer's Conditions Precedent to the Closing and the Agency's Conditions Precedent to the Closing for said Parcel have been fulfilled or waived by Developer and Agency. (f) Do such other actions as necessary, including obtaining the applicable Title Policy, to fulfill its obligations under this Agreement. (g) Within the discretion of Escrow Agent, direct Agency and Developer to execute and deliver any instrument, affidavit and statement, and to perform any act reasonably necessary to comply with the provisions of the Foreign Investment in Real Property Transactions Act ("FIRPTA") and any similar state act and regulation promulgated thereunder. Agency agrees to execute a Certificate of Non -Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (h) Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law. 202.5 Closing. Each transaction shall close ("Closing") within thirty (30) days after the parties' satisfaction of all of Agency's Conditions Precedent to the Closing and all of the Developer's Conditions Precedent to the Closing as set forth in Section 205 hereof, but in no event later than the applicable Outside Date for Closing, which is set forth in the Schedule of Performance. The Outside Date for Closing for the Property or each Parcel, as applicable, may be extended for up to six (6) months, by mutual agreement of Agency and Developer. Subject to the provisions in this Section 202.5, Closing shall occur at a time reasonably agreed on by the parties. A "Closing" shall mean the time and day the applicable Grant Deed(s) is recorded with the Riverside County Recorder. A "Closing Date" shall mean the day on which the applicable Closing occurs. 202.6 Termination. If an Escrow is not in condition to close by the applicable Outside Date for Closing, then either party which has fully performed under this Agreement may, in writing, demand the return of money or property and terminate such Escrow. If either party makes a written demand for return of documents or properties, the Escrow shall not terminate until ten (10) days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said ten (10) day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Developer, however, shall have the sole option to withdraw any money deposited by it with respect to the Closing less Developer's share of costs of the Escrow. Termination of said Escrow shall be without prejudice as to whatever legal rights either party may have against the 882/015610-0061 rl 380889.08 al 1/26/03 -16- 410 other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the applicable Closing as soon as possible. 202.7 Closing Procedure. Escrow Agent shall close each Escrow as follows: (a) (i) Record the applicable Grant Deed(s), the applicable Option Agreement(s), deeds of trust and other security instruments securing Developer's construction financing, (ii) at the Property Escrow or the Initial, Escrow (as applicable) only, record the Development Agreement and the Easement Agreement, (iii) at the Closing which includes Residential Parcel 7, record the Deed of Trust and the Declaration, and (iv) deliver copies of each of the documents listed in clauses (i) through (iii) above, showing recording information to Agency and Developer; (b) Deliver (i) the Option Agreement(s), (ii) at the Property Escrow or the Initial Escrow (as applicable) only, the Development Agreement and the Easement Agreement, and (iii) at the Closing which includes Residential Parcel 7, the Promissory Note, Deed of Trust, and Declaration to the Agency and a copy to Developer; (c) Deliver the applicable Title Policy and Grant Deed(s) to Developer, (d) File any informational reports required by Internal Revenue Code Section 6045(e), as amended and any other applicable requirements; and (e) Deliver the FIRPTA Certificate, if any, to Developer; and (f) Forward to both Developer and Agency a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into the Escrow, with such recording and filing date and information endorsed thereon. 203. Review of Title of Property. The Agency shall cause First American Title Company, or another title company mutually agreeable to both parties (the "Title Company"), to deliver to Developer a standard preliminary title report dated no earlier than the Effective Date (the "Preliminary Title Report") with respect to the title to the Property, together with legible copies of the documents underlying the exceptions ("Property Exceptions") set forth in the Preliminary Title Report, within thirty (30) days after the Effective Date. The Developer shall have the right to approve or disapprove the Property Exceptions and any proposed encumbrances to the Property in the exercise of its sole discretion; provided, however, that the Developer hereby approves the following Property Exceptions: (a) The Redevelopment Plan. (b) The lien of any non -delinquent property taxes and assessments (to be prorated at close of each respective Escrow. (c) All documents to be recorded at the close of the applicable Escrow. 882/015610-0061 380889.08 a11/26/03 -17- Developer shall have fifteen (15) days after the later of (i) the date of its receipt of the Preliminary Title Report, or (ii) the date Developer receives the documents underlying the Property Exceptions to give written notice to Agency and Escrow Holder of Developer's approval or disapproval of any of such Property Exceptions. Developer's failure to give written disapproval of the Preliminary Title Report within such time limit shall be deemed approval of the Preliminary Title Report. If Developer notifies Agency of its disapproval of any Property Exceptions in the Preliminary Title Report, Agency shall have the right, but not the obligation, to remove any disapproved Property Exceptions within thirty (30) days after receiving written notice of Developer's disapproval or provide assurances satisfactory to Developer that such Property Exception(s) will be removed on or before the applicable Closing. If Agency cannot or does not agree to remove any of the disapproved Property Exceptions before the applicable Closing, Developer shall have fifteen (15) days after the expiration of such thirty (30) day period to either give the Agency written notice that Developer elects to proceed with the purchase of the Property subject to the disapproved Property Exceptions or to give the Agency written notice that the Developer elects to terminate this Agreement. Developer's failure to give written notice of its election within such fifteen (15) day period shall be deemed to be an election to proceed with the purchase of the Property subject to the disapproved Property Exceptions. The condition of title, including all of the Property Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the "Condition of Property Title". From and after the Effective Date hereof, and continuing until the earlier of (i) the Close of Escrow for the last portion of the Property Developer intends to acquire from Agency, or (ii) termination of this Agreement, Agency shall not further encumber. the Property with additional Property Exceptions without the Developer's prior written consent. Developer shall have the right to approve or disapprove any further Property Exceptions reported by the Title Company after Developer has approved the Condition of Property Title (which are not created by Developer). Developer and the Executive Director of the Agency, on behalf of the Agency, shall have the authority to extend the foregoing fifteen (15) day period by written agreement. 204. Title Insurance. Concurrently with recordation of the applicable Grant Deed(s) conveying title to the Property or one or more of the Parcels (as applicable), there shall be issued to Developer a CLTA owner's policy of title insurance (the "Title Policy"), together with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring that the title to the Property or the Parcel, as applicable, is vested in Developer in the Condition of Property Title approved by Developer pursuant to Section 203 of this Agreement (except that if the Developer elects to purchase the Property pursuant to Option "B", such Title Policy shall only reflect the applicable Parcels and the Property Exceptions applicable thereto). Agency shall pay the title insurance premium attributable to the CLTA owner's form policy of title insurance. The Title Company shall, if requested by Developer, increase the amount of the title insurance policy or provide the Developer with an extended policy, coverages, or endorsements. Developer shall pay the portion of the premium associated with such extended or additional coverages or endorsements, and the costs of preparation of a current survey of the Property, if requested by Developer. The Title Company shall provide the Agency with a copy of the Title Policy. 205. Conditions of Closing. Each Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below: 882/015610-0061 380889.08 al1/26/03 -18- 205.1 Agency's Conditions of Closing. Agency's obligation to proceed with each Closing is subject to the fulfillment or waiver by Agency of each and all of the conditions precedent (a) through (1), inclusive, described below ("Agency's Conditions Precedent to the Closing"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by the time periods provided for herein: (a) No Default. Prior to the close of each Escrow, Developer shall not be in default of any of its obligations under the terms of this Agreement with respect to said Escrow and all representations and warranties of Developer contained herein shall be true and correct in all material respects. (b) Execution of Documents. Developer shall have executed and delivered into the Escrow (i) the applicable Grant Deed(s), the applicable Option Agreement(s), and any other documents required hereunder, (ii) at the Property Escrow or the Initial Escrow (as applicable) only, the Easement Agreement and the Development Agreement, and (iii) at the Closing that includes Residential Parcel 7, the Promissory Note, Deed of Trust, and Declaration. (c) Payment of Funds. Prior to each Closing, Developer shall have paid all of its required costs of the Closing into the applicable Escrow in accordance with Section 202 hereof. (d) Design Approvals. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have obtained approval by the City of the Design Development Drawings for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, as set forth in Section 302 herein. If Developer elects to purchase the Property pursuant to Option "B", Developer shall have obtained approval by the City of the Design Development Drawings for the Phase of Development applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof. (e) Land Use Approvals. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have received all land use approvals and other discretionary permits and approvals required for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, pursuant to Section 302.5 hereof. If Developer elects to purchase the Property pursuant to Option "B", Developer shall have received all land use approvals and other discretionary permits and approvals required for the Phase of Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5 hereof. (f) Insurance. Developer shall have provided proof of insurance as required by Section 306 hereof and Agency shall have approved of the same. (g) Financing. As provided in Section 311.1 hereof, if (i) Developer elects to purchase the Property pursuant to Option "A", the Agency shall have approved Developer's financing for the development of the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive and, (ii) if Developer elects to purchase the Property pursuant to Option `B", the Agency shall have approved Developer's financing for the Phase of 882/015610-0061 380889.08 a11/26/03 -19- Development applicable to each Parcel to be acquired at the Closing, and such financing shall close and be available to the Developer upon the Closing. (h) Grading Plans and Permits. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have obtained City approval of its final grading plans for the Property, and grading permits shall be ready to be issued (upon payment of necessary fees, posting of required security, and similar items). If Developer elects to purchase the Property pursuant to Option `B", Developer shall have obtained City approval of its final grading plans for the Phase of Development applicable to each Parcel to be acquired at the Closing, and grading permits shall be ready to be issued (on payment of necessary fees, posting of required security, and similar items). (i) Building Plans and Permits. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have obtained City approval of its building plans for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, and building permits shall be ready to be issued (on payment of necessary fees, posting of required security, and similar items). If Developer elects to purchase the Property pursuant to Option "B", Developer shall have obtained City approval of its building plans for the Phase of Development applicable to each Parcel to be acquired at the Closing, and building permits shall be ready to be issued (on payment of necessary fees, posting of required security, and similar items). (j) Construction Costs and Contract. The Agency shall have approved the Preliminary Development Budget pursuant to Section 304 hereof, and the Developer shall have provided the Agency Executive Director a copy of the proposed contract, certified by the Developer to be a true and correct copy thereof, between the Developer and one or more duly licensed general contractors reasonably acceptable to the Agency for the construction of (i) the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, if Developer has elected to purchase the Property pursuant to Option "A", or (ii) the Phase of Development applicable to each Parcel to be acquired at the Closing, if Developer has elected to purchase the Property pursuant to Option "B". (k) Performance Bond. The Developer shall have obtained from Developer's contractor and delivered to the Agency evidence, in a form satisfactory to Agency, that said contractor has obtained Contractor Bonds for the completion of the construction of (i) the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, if Developer has elected to purchase the Property pursuant to Option "A", or (ii) the Phase of Development applicable to each Parcel to be acquired at the Closing, if Developer has elected to purchase the Property pursuant to Option "B". Said Contractor Bonds shall provide that the Agency is authorized to enforce the same as a third party beneficiary. (1) Franchise Agreement. _ At the Initial Escrow or the Property Escrow (as applicable) only, Developer shall have submitted to Agency and Agency shall have approved, a franchise agreement or operating agreement with Hilton Homewood Suites, or a comparable mid -price suites hotel that uses a national reservation system. 882/015610-0061 380889.08 a11/26/03 -20- 205.2 Developer's Conditions of Closing. Developer's obligation to proceed with the purchase of the Property or each Parcel (as applicable) is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent (a) through (i), inclusive, described below ("Developer's Conditions Precedent to the Closing"), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein: (a) No Default. Prior to the applicable Closing, Agency shall not be in default of any of its obligations under the terms of this Agreement and all representations and warranties of Agency contained herein shall be true and correct in all material respects. (b) Execution of Documents. Agency shall have executed (i) the applicable Grant Deed(s), the applicable Option Agreement(s), and any other documents required hereunder, (ii) at the Property Escrow or the Initial Escrow (as applicable) only, the Easement Agreement, the Development Agreement, and (iii) at the Closing that includes Residential Parcel 7, the Promissory Note, Deed of Trust, and Declaration, and delivered all such documents into the Escrow. (c) Review and Approval of Title. Developer shall have reviewed and approved the Condition of Property Title, as provided in Section 203 hereof. (d) Title Policy. The Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to provide to the Developer a Title Policy at the applicable Closing, in accordance with Section 204 hereof. (e) Environmental. The Developer shall have approved the environmental condition of the Property, or applicable portion thereof, and shall not have elected to terminate this Agreement with respect to the Property, or applicable portion thereof, pursuant to Section 207.2 hereof. (f) Design Approvals. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have obtained approval by the City of the Design Development Drawings for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, as set forth in Section 302 herein. If Developer elects to purchase the Property pursuant to Option "B", Developer shall have obtained approval by the City of the Design Development Drawings for the Phase of Development applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof. (g) Land Use Approvals. If Developer elects to purchase the Property pursuant to Option "A", Developer shall have received all land use approvals and other discretionary permits and approvals required for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, pursuant to Section 302.5 hereof. If Developer elects to purchase the Property pursuant to Option "B", Developer shall have received all land use approvals and other discretionary permits and approvals required for the Phase of Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5 hereof. 882/015610-0061 380889.08 al 1/26/03 —21— �� (h) Grading and Building Permits. If Developer elects to purchase the Property pursuant to Option "A", all grading permits required for the Property, and all building Permits required for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, shall be available for issuance upon the payment of applicable fees. If Developer elects to purchase the Property pursuant to Option "B", all grading and building permits required for the construction of the Phase of Development applicable to each Parcel to be acquired at the Closing shall be available for issuance upon the payment of applicable permit fees. (i) Financing. As provided in Section 311.1 hereof, if (i) Developer elects to purchase the Property pursuant to Option "A", Developer shall have obtained and the Agency shall have approved Developer's financing for the development of the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive and, (ii) if Developer elects to purchase the Property pursuant to Option "B", Developer shall have obtained and the Agency shall have approved Developer's financing for the Phase of Development applicable to each Parcel to be acquired at the Closing, and such financing shall close and be available to the Developer upon the applicable Closing. 206. Studies and Reports. 206.1 Access to Property. Prior to the Closing for the Property Escrow or the Initial Escrow (as applicable), Agency shall provide representatives of Developer the right of access to all portions of the Property for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including without limitation the investigation of the environmental condition of the Property pursuant to Section 207 hereof. Any preliminary work undertaken on the Property by Developer prior to the Closing for the Initial Escrow or the Property Escrow (as applicable) shall be done at the sole expense of the Developer. In no event shall Developer conduct any intrusive testing procedures on the Property without the prior written consent of Agency, which consent shall not be unreasonably withheld. Such investigations may be made by Developer or any of the Developer Representatives during any normal business hours. Developer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, codes, and ordinances which relate to the use and occupancy of the Property. Agency shall cooperate to assist Developer in completing such inspections and special investigations at no cost or expense to Agency. Such inspections and investigations shall be conducted only upon no less than twenty-four (24) hours' notice to Agency and shall be conducted at such times and in such a manner as to minimize any disruption to the Property. Agency shall have the right, but not the obligation, to accompany Developer during such investigations and/or inspections. As a condition to any such entry, Developer shall (i) conduct all work or studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Property during or after such investigation; (ii) comply with all applicable laws and governmental regulations; (iii) keep the Property free and clear of all materialmen's liens, lis pendens and other liens arising out of the entry and work performed under this paragraph; (iv) maintain or assure maintenance of workers' compensation insurance (or state approved self-insurance) on all persons entering the property in the amounts required by the State of California; (v) provide to Agency prior to initial entry a certificate of insurance evidencing that Developer and/or the persons entering the Property have procured and have in effect the insurance required by Section 306. Any preliminary work undertaken pursuant to this Section 206 shall be undertaken only after securing any necessary 882/015610-0061 380889.08 a11/26/03 -22- 4 1% 6 permits from the appropriate governmental agencies. The Developer's approval of the environmental and soils condition of the Property shall be a Developer's Condition Precedent to the Closing, as set forth in Section 205.2 hereof. If the Developer, based upon the above tests, reports and review, disapproves the environmental or soils condition of the Property, or any part thereof, in its sole and absolute discretion, then the Developer may (i) remediate the Property, or any specific contaminated portion thereof, to an acceptable condition, (ii) terminate this Agreement with respect to those portions of the Property which Developer has disapproved, as a result of the environmental or soils condition thereof; or (iii) terminate this Agreement by written Notice to the Agency pursuant to Section 603 hereof. Notwithstanding anything herein to the contrary, if the Developer elects to terminate this Agreement with respect to certain contaminated portions of the Property, in accordance with clause (ii) above, Developer may not elect not to purchase the Suites Hotel Parcel or Residential Parcel 7. From and after the Effective Date hereof, and continuing until the earlier of (a) the Close of Escrow for the last portion of the Property Developer intends to acquire from Agency, or (b) termination of this Agreement, Agency shall not take any affirmative action to affect the condition of the Property without the Developer's prior written consent. 206.2 Indemnification. Developer shall protect, defend, indemnify and hold harmless Agency and City and Agency's and City's respective officers, officials, members, employees, agents, and representatives (any of the foregoing shall be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and expert witness fees, but excluding those resulting from environmental contamination of the Property or other defects on the Property existing prior to Developer's entry thereon or not otherwise caused by Developer or any of the Developer Representatives, but including, without limitation, injury to or death of any person or persons and damage to or destruction of any property, threatened, brought or instituted ("Claims"), arising out of or in any manner directly or indirectly connected with the entry upon the Property by Developer or any of the Developer Representatives pursuant to this Section or Section 207, below, including without limitation: (a) any damage to the Property and any liability to any third party incurred by reason of any acts or omission of, or any commission of any negligent or tortious acts, by Developer or the Developer Representatives; (b) any mechanics' or materialmen's liens, claims, demands, actions or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for Developer, or (ii) any activities of any of the Developer Representatives on or relating to the Property (including, without limitation, any claims by any of such Developer Representatives); and (c) any costs of removing Developer or the Developer Representatives from the Property after the expiration of the term hereof unless Developer is otherwise entitled to possession of the Property at such time. 882/015610-0061 380889.08 al1/26/03 -23- A ►-1 207. Condition of the Property 207.1 Disclosure. The Agency shall, within the time set forth in the Schedule of Performance, provide to the Developer copies of any environmental studies and reports with respect to the Property which it has in its possession. 207.2 Investigation of Property. Pursuant to Section 206 hereof, the Developer may engage an Environmental Consultant to make such investigations as Developer deems necessary, including any "Phase 1" and/or "Phase 2" investigations of the Property, and the Agency shall promptly be provided a copy of all reports and test results provided by the Environmental Consultant (the "Property Environmental Reports"). The Developer shall be permitted to make such inspections of the Property pursuant to the requirements of Section 206. The Developer shall approve or disapprove of the environmental condition of the Property, or portion thereof, in the Developer's sole discretion, not later than thirty (30) days prior to the scheduled date for the Closing of the Initial Escrow or the Property Escrow (as applicable). The Developer's approval of the environmental condition of the Property shall be a Developer's Condition Precedent to the Closing, as set forth in Section 205 hereof. If the Developer, based upon the Property Environmental Reports, disapproves the environmental condition of the Property for any reason, in the Developer's sole discretion, then the Developer may (i) remediate the Property, or any specific contaminated portion thereof, to an acceptable condition, (ii) terminate the Agreement with respect to those portions of the Property in which Developer has disapproved, as a result of the environmental or soils condition thereof; or (iii) terminate this Agreement by written Notice to the Agency pursuant to Section 603 hereof. Notwithstanding anything herein to the contrary, if the Developer elects to terminate this Agreement with respect to certain contaminated portions of the Property, in accordance with clause (ii) above, Developer may not elect not to purchase the Suites Hotel Parcel or Residential Parcel 7. 207.3 No Further Warranties As To Property; Release of Agency. The physical condition, possession and title of the Property is and shall be delivered from Agency to Developer in an "as -is" "where is" "with all faults" condition, with no warranty expressed or implied by Agency, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Property for the development purposes intended hereunder. The Developer hereby waives, releases and discharges forever the Agency and the City, and their employees, officers, agents, members and representatives, from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with the condition of the Property, any Hazardous Materials on the Property, or the existence of Hazardous Materials contamination due to the generation of Hazardous Materials from the Property, however they came to be placed there, except that arising out of the negligence or intentional misconduct of the Agency, the City, or their employees, officers, agents or representatives. The Developer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows: 882/015610-0061 4 (3 380889.08 al1/26/03 -24- "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor". Only with respect to the condition of the Property as set forth in this Section 207.3, the Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. Developer's Initials Notwithstanding anything herein to the contrary, if Developer elects to purchase the Property pursuant to Option "B", the release set forth in this Section 207.3 shall become effective as to the individual Parcels comprising the Property on the date Developer acquires fee title to each of said Parcel(s). 207.4 Developer Precautions After the Closing. Upon the Closing for the Property or for one or more Parcels (as applicable), the Developer shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which are located in, on or under the Property or such Parcels. Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, the Developer shall install and utilize such equipment and implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. 207.5 Developer Indemnity. Upon the Closing for the Property, or for one or more Parcels (as applicable), Developer agrees to indemnify, defend and hold Agency harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of any such Hazardous Materials to or from, the Property or the Parcels (as applicable) which occurs after the Closing for the Property or such Parcels, or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in or about to or from, the Property or the applicable Parcels which occurs after the Closing for the Property or such Parcels. This indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. At the request of the Developer, the Agency shall cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that the Agency shall not be obligated to incur any expense in connection with such cooperation or assistance. 882/015610-0061 1 9 380889.08 al1/26/03 -25- 300. DEVELOPMENT OF THE PROJECT 301. Scope of Development. The Developer shall develop or cause the development of the Project in accordance with the Scope of Development, the City Municipal Code, and the plans, drawings and documents submitted by the Developer and approved by the Agency as set forth herein. Prior to commencement of construction of any Phase of Development the Developer shall obtain and deliver to the Agency evidence of Contractor Bonds covering the applicable Phase of Development, in an amount sufficient to complete the construction of said Phase of Development, in the form approved by the Agency pursuant to Section 205.1(k), and which provide that the Agency is authorized to enforce such completion bond as the primary beneficiary or as a third party beneficiary. 302. Design Review. 302.1 Developer Submissions. Before commencement of construction of any Phase of Development, and as a condition precedent to close of escrow pursuant to Section 205.1(d), and at or prior to the time set forth herein, the Developer shall submit to the City any plans and drawings (collectively, the "Design Development Drawings") which may be required by the City with respect to any permits and entitlements which are required to be obtained to develop a Phase of Development, and such plans for the Phase of Development as required by the City in order for the Developer to obtain building and grading permits for the Phase of Development. Within thirty (30) days after the City's disapproval or conditional approval of such plans, the Developer shall revise the portions of such plans identified by the City as requiring revisions and resubmit the revised plans to the City. 302.2 City Review and Approval. The City shall have all rights to review and approve or disapprove all Design Development Drawings and other required submittals in accordance with the City Municipal Code, and nothing set forth in this Agreement shall be construed as the City's approval of any or all of the Design Development Drawings. 302.3 Revisions. Any and all change orders or revisions required by the City and its inspectors which are required under the City Municipal Code and all other applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall be included by the Developer in its Design Development Drawings and other required submittals and shall be completed during the construction of the applicable Phase of Development. 302.4 Defects in Plans. The Agency and the City shall not be responsible either to the Developer or to third parties in any way for any defects in any of the Design Development Drawings, nor for any structural or other defects in any work done according to the approved Design Development Drawings, nor for any delays reasonably caused by the review and approval processes established by this Section 302. 302.5 Land Use Approvals. Before commencement of construction of any Phase of Development or other works of improvement upon the Property, the Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required for the applicable Phase of Development or work of 4 S 0 882/015610-0061 L 380889.08 al1/26/03 -26- improvement by the City or any other governmental agency affected by such construction or work, including but not limited to, any environmental studies and documents required pursuant to the California Environmental Quality Act. 303. Schedule of Performance. The Developer shall submit all Design Development Drawings, commence and complete all construction of the Project, and satisfy all other obligations and conditions of this Agreement, within the times established therefor in the Schedule of Performance; provided, however, Developer's commencement of construction of each Phase of Development shall be in compliance with (i) Section 201.1, if Developer elects to purchase the Property pursuant to Option "A", and (ii) Section 201.2, if Developer elects to purchase the Property pursuant to Option "B". 304. Cost of Construction. Attached hereto as Attachment No. 17 is a preliminary development budget for the Project, which sets forth the proposed development costs in detail (the "Preliminary Development Budget"). All of the cost of planning, designing, developing and constructing the Project, site preparation and grading shall be borne solely by the Developer. 305. Developer's Early ntry onto the Property. Within the time set forth in the Schedule of Performance, Developer and Agency shall execute the Early Entry Agreement, pursuant to which Agency shall permit Developer to enter upon the Property for purposes of grading the Property, or any portion thereof, installing wet and dry utilities, and developing Seeley Drive, in accordance with the terms and conditions set forth therein. 306. Insurance Requirements. The Developer shall indemnify, defend, and hold harmless the Agency and the City, and their respective officers, officials, employees, agents, and representatives, from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including expert witness fees, attorneys fees, and costs), which may be caused by any of the Developer's activities under this Agreement. Commencing with the Effective Date hereof and ending on the date Agency issues a Release of Construction for the final Phase of Development to be constructed on the Property (the "Completion of Construction Date"), Developer shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to the Executive Director, the following policies of insurance: A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than: (A) for death and bodily injury, either (i) a combined single limit of Three Million Dollars ($3,000,000.00) or (ii) Three Million Dollars ($3,000,000.00) per person and Three Million Dollars ($3,000,000.00) per occurrence, and Three Million Dollars ($3,000,000.00) in the aggregate, and (B) for property damage, Three Million Dollars ($3,000,000.00) per occurrence. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Developer and Agency against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by. Developer in the course of carrying out the work or services contemplated in this Agreement. 982/015610-0061 481 380889.08 a11/26/03 -27- A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Three Million Dollars ($3,000,000.00) per person and Three Million Dollars ($3,000,000.00) per occurrence, and property damage liability limits of Three Million Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate or (ii) combined single limit liability of Three Million Dollars ($3,000,000.00). Said policy shall include coverage for owned, non - owned, leased, and hired cars. The following additional requirements shall apply to all of the above policies of insurance: All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name Agency, City, and their respective officers, officials, members, employees, agents, and representatives as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against Agency, City, and their officers, officials, members, employees, agents, and representatives, and their respective insurers. All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days' prior written notice to Agency and City. In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Executive Director. Not later than the Effective Date of this Agreement, Developer shall provide the Executive Director with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the Executive Director. The policies of insurance required by this Agreement shall not require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless approved in writing by Agency's Executive Director in his or her sole and absolute discretion. Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 307. Indemnity. Commencing on the Effective Date and ending on the Completion of Construction Date, the Developer shall defend, indemnify, assume all responsibility for, and hold the Agency and the City, and their representatives, volunteers, officers, employees and agents, harmless from all claims, demands, damages, defense costs or liability of any kind for damage to property or injuries to persons, including accidental death (including attorneys' fees and costs), which may be caused by any acts or omissions of the Developer under this Agreement, whether such activities or performance thereof be by the Developer or by anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement including, but not limited to, Developer's failure to pay, if required, prevailing wages on the construction and development of any Phase of Development. The Developer shall not be liable for property damage or bodily injury occasioned by the negligence or willful misconduct of the Agency, the City or their respective agents or employees. 882/015610-0061 4 8 S2 380889.08 a11/26/03 -28- 308. Rights of Access. Prior to the Completion of Construction Date, for purposes of assuring compliance with this Agreement, representatives of the Agency shall have the right of access to the Property, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in constructing the Project so long as Agency representatives comply with all safety rules and do not interfere with construction. The Agency (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its rights pursuant to this Section 308. Agency shall indemnify, defend, and hold Developer harmless from and against all costs, claims, liability and judgments arising from the Agency's exercise of its right of access hereunder. 309. Compliance With Laws; Payment of Taxes. 309.1 Compliance with Laws. The Developer shall carry out the design, construction and operation of the Project and each Phase of Development in conformity with all applicable laws, including all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, at seq., and the Unruh Civil Rights Act, Civil Code Section 51, at seq. 309.2 Taxes and Assessments. The Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Property (after such time that Developer acquires fee title to each of the Parcels composing the Property), subject to the Developer's right to contest in good faith any such taxes. The Developer shall not apply for or receive any exemption from the payment of property taxes or assessments on any interest in or to the Project or any of the Parcels composing the Property. The Developer shall not take action, including any assessment appeal, to decrease the assessed value of any of the Property (including the value of each respective Phase of Development) below the final assessed value at the time the development of the Property or a Phase of Development (as applicable) is completed. The foregoing restriction shall not apply to individual homeowners who have purchased homes within the Parcel 5 Residential Development or the Parcel 7 Residential Development. 310. Release of Construction Covenants. Upon the City's issuance of the last and final certificate of occupancy for a Phase of Development, the Developer may request that the Agency furnish the Developer with a Release of Construction Covenants for the applicable Phase of Development. The Agency shall not unreasonably withhold any such Release of Construction Covenants, and if the Developer is entitled thereto shall furnish to Developer a Release of Construction Covenants for the applicable Phase of Development within fifteen (15) days after Developer's request thereof. The Release of Construction Covenants shall be a conclusive determination of satisfactory completion of the applicable Phase of Development and the Release of Construction Covenants shall so state. Any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the real property for which a Release Construction Covenants has been issued shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants as described in Article 400 of this Agreement. rO 882/015610-0061 380889.08 a] 1/26/03 -29- If the Agency refuses or fails to furnish a Release of Construction Covenants after written request from the Developer, the Agency shall, within fifteen (15) days after written request therefor, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish a Release of Construction Covenants. The statement shall also contain the Agency's opinion of the actions the Developer must take to obtain a Release of Construction Covenants for the applicable Phase of Development. A Release. of Construction Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the applicable Phase of Development, or any part thereof. The Release of Construction Covenants is not a notice of completion as referred to in Section 309.3 of the California Civil Code. For purposes of this Section 310 only, the term "Phase of Development" shall refer to Developer's construction of any of, the Casitas Development, the Sanctuary Villas Development, the Medical Office/Surgical Facility, the Suites Hotel, the Parcel 1 Restaurant, the Parcel 13 Restaurant, the Parcel 5 Residential Development, the Parcel 7 Residential Development, and Seeley Drive. Notwithstanding anything in this Section 310 to the contrary, Developer shall not be entitled to a Release of Construction Covenants for the final Phase of Development to be constructed on the Property until Developer has completed the final pavement lift of Seeley Drive, as verified by the City Engineer. 311. Financing of the Protect. 311.1 Approval of Financing. (a) If the Developer elects to purchase the Property pursuant to Option "A", the following shall apply: Within the time set forth in the Schedule of Performance, and as one of Agency's Conditions Precedent to the Closing for the Property Escrow, Developer shall submit to Agency evidence that Developer has obtained (i) commitments for construction financing from a commercial lender necessary to undertake the development of the Suites Hotel Parcel, Casitas Parcel 2, and the Seeley Drive Parcel, and the construction of the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, in accordance with this Agreement (the "Construction Loan"); (ii) "Mezzanine" financing in a form acceptable to Agency; and (iii) sufficient equity capital to cover the difference between (a) the sum of the Construction Loan and the Mezzanine financing and (b) the total cost of developing the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive ("Developer's Equity Contribution"). The Agency shall approve or disapprove such evidence of financing commitments within thirty (30) days after receipt of a complete submission. Approval shall not be unreasonably withheld or conditioned. If Agency shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating the reasons for such disapproval and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 311.1(a) for the approval or disapproval of the evidence of financing as initially submitted to Agency. Such evidence of financing shall include the following: (a) a copy of a loan commitment(s) obtained by Developer from one or more financial institutions for the Construction Loan, subject to such lenders' reasonable, customary and normal conditions and terms, and (b) documentation satisfactory to the Agency as evidence of the "Mezzanine" financing and Developer's Equity Contribution. As a condition to Developer's commencement of construction of any subsequent Phase of Development, Developer shall have, 882/015610-0061 4,34 380889.08 al1/26/03 "30- as a condition to the receipt of building permits from the City, submitted to Agency and obtained Agency's approval of, all of the items listed in clauses (i) through (iii) above, as they pertain to the development of said Phase of Development. (b) If the Developer elects to purchase the Property pursuant to Option "B", the following shall apply: Within the times set forth in the Schedule of Performance, and as one of Agency's Conditions Precedent to the Closing for each Escrow, Developer shall submit to Agency evidence that Developer has obtained (i) commitments for construction financing from a commercial lender necessary to undertake the development of the applicable Parcel, and the construction of the applicable Phase of Development, in accordance with this Agreement (a "Construction Loan"); (ii) "Mezzanine" financing in a form acceptable to Agency; and (iii) sufficient equity capital to cover the difference between (a) the sum of the Construction Loan and the Mezzanine financing and (b) the total cost of developing the applicable Phase of Development ("Developer's Equity Contribution"). The Agency shall approve or disapprove such evidence of financing commitments within thirty (30) days after receipt of a complete submission for the applicable Phase of Development. Approval shall not be unreasonably withheld or conditioned. If Agency shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating the reasons for such disapproval and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 311.1(b) for the approval or disapproval of the evidence of financing as initially submitted to Agency. Developer shall close each approved Construction Loan prior to or concurrently with the real estate closing for the applicable Phase of Development. Such evidence of financing shall include the following: (a) a copy of a loan commitment(s) obtained by Developer from one or more financial institutions for the Construction Loan, subject to such lenders' reasonable, customary and normal conditions and terms, and (b) documentation satisfactory to the Agency as evidence of the "Mezzanine" financing and Developer's Equity Contribution. 311.2 Changes Requested by Lenders. In the event that a lender which has been approved pursuant to Section 311.1 hereof requires one or more amendments to this Agreement, or any of the attachments hereto, which amendments are reasonably acceptable to the Agency Executive Director and do not materially affect Agency's interest hereunder, the Agency Executive Director or his or her designee is hereby authorized to make such amendments without further authorization from the Agency; provided, however, that the foregoing is not intended to restrict or limit the Agency's legislative discretion. 311.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project or any Phase of Development, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is 882/015610-0061 -31- 485 380889.08 al1/26/03 understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 311.4 Failure of Holder to Complete Project. In any case where, sixty (60) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Property or any part thereof receives a notice from Agency of a default by the Developer in completion of construction of the Project, or any Phase of Development under this Agreement, and such holder has not elected to construct as set forth in this Section 311, or if it has exercised the option but has defaulted hereunder and failed to timely cure such default, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust. If the ownership of the Property or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: (a) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All expenses with respect to foreclosure including reasonable attorneys' fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Property or part thereof; (d) The costs of any improvements made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (f) Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 311.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the Project or any Phase of Development, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not elected to construct, the Agency shall have the right but no obligation to cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Property, or portion of the Property against which the mortgage or deed of trust is recorded, to the extent of such costs and disbursements. 882/015610-0061 380889.08 a11/26/03 -32- 86 311.6 Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust encumbering the Property shall not be obligated by the provisions of this Agreement to construct or complete the Project, or any portion thereof, or to guaranty such construction or completion; nor shall any such covenant or any other provision in this Agreement be construed so to obligate such holder. 312. Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, and Landscaue Parcel I. In accordance with, and as further described in, the Development Agreement, the City of La Quinta has applied for certain grants (the "Landscaping Grants") to partially fund the cost of certain landscaping improvements (the "Landscaping Improvements") the City desires to install on certain parkways adjacent to the Property (the "Parkway Areas"), and on Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, and Landscape Parcel I. Upon the City's receipt of the Landscaping Grants and the City's subsequent installation of the Landscaping Improvements, the Developer will be responsible for maintaining the Landscaping Improvements. If the City does not obtain the Landscaping Grants by March 1, 2004„ Developer shall be obligated to construct landscaping improvements on the Agency Landscape Property, in accordance with the standards set forth in the Landscaping Plan that was approved as part of the various Site Development Permits for the Project (the "Developer Landscape Improvements"). Developer shall complete construction of the Developer Landscape Improvements at the time Developer completes construction of the adjacent phase of Development, and Developer shall not be entitled to a Release of Construction Covenants until it has completed the applicable landscaping. For example, the Developer must complete the Developer Landscape Improvements within Landscape Parcel I prior to or at the same time the Developer is required to complete the Parcel 5 Residential Development, and Developer shall not be entitled to a Release of Construction Covenants for the Parcel 5 Residential Development until Developer has installed the Developer Landscape Improvements within Landscape Parcel I, as evidenced by a City inspection and approval of same. At the Closing of the Initial Escrow or the Property Escrow, as applicable, Agency and Developer shall execute the Easement Agreement, which grants the Developer easements to enter onto the Agency Landscape Property for purposes of (i) installing on the Agency Landscape Property the Developer Landscape Improvements (which easement shall automatically terminate if the City obtains the Landscaping Grants before March 1, 2004), and (ii) maintaining the Landscaping Improvements or the Developer Landscape Improvements, as applicable. The Easement Agreement sets forth said maintenance responsibilities. Notwithstanding anything herein to the contrary, the City is not a party to this Agreement and nothing herein is intended to impose any obligations on the City. 400. AGENCY LOAN; HOMEBUYER ASSISTANCE 401. Agency Loan, Disbursement. Subject to the terms and conditions of this Agreement, including, but not limited to, the conditions to disbursement set forth in the Disbursement Schedule, Agency shall assist in the financing of the construction of the Affordable Housing Component by providing Developer with a loan (the "Agency Loan") from the Agency's Low and Moderate Income Housing Fund in the amount of TWO MILLION FIVE 882/015610-0061 -33- 487 380889.08 al1/26/03 HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000.00) (the "Agency Loan Amount"). The Agency. Loan shall be disbursed in accordance with the terms of the Disbursement Schedule. 402. Developer's Homebuyer Credit, Homebuyer Loan. Developer shall provide a credit towards the purchase price of each Affordable Home, by reducing the purchase price thereof from the market price to a purchase price that constitutes an Affordable Housing Cost to an Eligible Buyer (each, a "Developer Credit"). Each Developer Credit shall, upon the close of escrow for such Affordable Home, be converted into a loan from the Agency to said Eligible Buyer (a "Homebuyer Loan"), to be repaid, if at all, in accordance with the terms of the "Buyer Promissory Note," as described in Section 404 below, and in the Declaration. Notwithstanding anything herein to the contrary, in the event Developer provides Developer Credits in a cumulative amount up to or exceeding the Agency Loan Amount prior to the time the last Affordable Home has been sold to an Eligible Buyer, Developer shall continue to provide a Developer Credit to Eligible Buyers of the remaining Affordable Homes. Developer shall not be entitled to any reimbursement or setoff from Agency for any such Developer Credits that are provided in excess of the Agency Loan Amount. 403. Agency Note; Agency Deed of Trust. The Agency Loan shall be evidenced by the Agency Note and Agency Deed of Trust. Interest, in the amount of seven percent (7%) per annum, shall accrue on each portion of the Agency Loan commencing on the date such portion is disbursed. Repayment of the Agency Loan shall be in accordance with the terms of the Agency Note. Repayment of the Agency Note shall be partially secured by the Deed of Trust. Notwithstanding any of the foregoing, however, (i) the Agency Loan Amount shall be automatically reduced by the amount of each Developer Credit provided by Developer to an Eligible Buyer, (ii) the Deed of Trust shall be reconveyed with respect to each single family home that has been sold and conveyed by Developer to an individual purchaser, and (iii) at such time when Developer has provided Developer Credits in a cumulative amount that equals or exceeds the Agency Loan Amount, the Agency Note shall be cancelled and the Deed of Trust reconveyed. 404. Buyer Affordable Housing Documents. Each buyer of an Affordable Home shall be required to execute all of the following to assure the affordability of the Affordable Home to Eligible Buyers for a period of forty-five (45) years following the date of transfer of said Affordable Home from Developer to an Eligible Buyer ("Covenant Period"): (i) an affordable housing agreement that prohibits during the Covenant Period the resale of the Affordable Home except to an Eligible Buyer and grants the Agency an option to purchase the Affordable Home ("Option to Purchase") in the event the then -owner is unable to locate an Eligible Buyer ("Buyer Affordable Housing Agreement"); (ii) a memorandum reciting Agency's Option to Purchase ("Buyer Memorandum Re Option to Purchase"); (iii) a promissory note ("Buyer Promissory Note") whose terms shall include, (a) principal in the amount of the Homebuyer Loan, (b) seven percent (7%) interest per annum, compounded annually, (c) a 45-year term, (d) that no payments shall be due unless an "Event of Acceleration" (as that term is defined in the Declaration) occurs, triggering acceleration and repayment of the Homebuyer Loan amount, (e) assumability by an Eligible Buyer, and (f) full credit of all payments at end of term if all conditions, covenants and restrictions have been satisfied; (iv) a second deed of trust securing the Buyer Promissory Note 882/015610-0061 -34- 483 380889.08 a11/26/03 ("Buyer Second Trust Deed"); and (v) a disclosure statement acknowledging and consenting to all of the affordability and resale restrictions contained in the aforementioned documents ("Buyer Disclosure Statement"). The documents listed in clauses (i)-(v) above shall be collectively referred to herein as the "Buyer Affordable Housing Documents." Current sample forms of each of the Buyer Affordable Housing Documents are attached hereto and incorporated herein as Attachment No. 18. Said forms shall be subject to change to conform with this Agreement and all applicable Fannie Mae, HUD or other government or lender requirements. 500. USE OF THE PROPERTY 501. Use in Accordance with Redevelopment Plan. 501.1 The Developer covenants and agrees for itself, its successors, assigns, and every successor in interest to the Property or any part thereof, that upon the Developer's acquisition of the Property and during construction and operation of the Project, and thereafter, the Developer shall devote the Property to the uses specified in the Redevelopment Plan and this Agreement for the term of the land use controls of the Redevelopment Plan. 501.2 All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the Redevelopment Plan and all applicable provisions of the City Municipal Code. The foregoing covenants shall run with the land until the expiration of the land use controls of the Redevelopment Plan. 502. Maintenance Covenants. The Developer shall maintain the Property and all improvements thereon, including all landscaping, in compliance with the terms of the Redevelopment Plan, and with all applicable provisions of the City Municipal Code. 503. Nondiscrimination Covenants. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall the Developer 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 Property. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the Property or portion thereof on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, 882/015610-0061 380889.08 a11/26/03 -3 5- 489 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: "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 leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased". (c) In contracts relating to the disposition of the realty: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises". 504. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. 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 right, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Property or the Project Area. The Agency shall have the right, if this Agreement or the covenants herein are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches and to avail itself of the rights granted herein to which it may be entitled, except as may be otherwise set forth in this Agreement. The covenants contained in this Agreement shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having an interest in such other real property. The covenants contained in this Agreement shall remain in effect for the periods described herein, specifically including, without limitation, the following: (a) The environmental covenants set forth in Sections 207.3, 207.4, and 207.5 shall remain in effect in perpetuity. (b) The covenants pertaining to use of the Property which are set forth in Section 501 shall remain in effect until the expiration of the land use controls of the Redevelopment Plan. 882/015610-0061 -36-4 9� 380889.08 a11/26/03 (c) The covenants pertaining to maintenance of the Property, and all improvements thereon, as set forth in Section 502, shall remain in effect until the expiration of the land use controls of the Redevelopment Plan. (d) The covenants against discrimination, as set forth in Section 503, shall remain in effect in perpetuity. (e) The indemnity obligations, as set forth in Section 307 hereof, shall remain in effect for the time period set forth in Section 307. (f) The indemnity obligations, as set forth in Section 207.5 hereof, shall remain in effect in perpetuity. 505. Representations and Warranties. 505.1 Agency Representations. Agency represents and warrants to Developer as follows: (a) Authority. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000), which has been authorized to transact business pursuant to action of the City. Agency has full right, power and lawful authority to acquire, grant, sell and convey the Property as provided herein, and the execution, performance and delivery of this Agreement by Agency has been fully authorized by all requisite actions on the part of Agency. (b) FIRPTA. Agency is not a "foreign person" within the parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any similar state statute, or has complied and will comply with all the requirements under FIRPTA or any similar state statute. (c) No Conflict. To the Agency's best knowledge, Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. (d) Conformance with Redevelopment Plan. The development and use of the Project as required hereunder is in conformance with the Redevelopment Plan. Until the Closing for the Property, or for any of the Parcels (as applicable), Agency shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 505.1 not to be true as of the respective Closing, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer shall have a right to approve or disapprove. If Developer elects to close the applicable Escrow following disclosure of such information, Agency's representations and warranties contained herein shall be deemed to have been made as of the applicable Closing, subject to such exception(s). If, following the disclosure of such information, Developer elects to not close the applicable Escrow, then this Agreement as to the applicable Escrow shall automatically 882/015610-0061 491 380889.08 a11/26/03 -37- terminate, and neither party shall have any further rights, obligations or liabilities hereunder; provided, however, that in the event the Developer elects to purchase the Property pursuant to Option "B", and the Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this Agreement. In the event Developer elects to purchase the Property pursuant to Option "B", and the Initial Escrow fails to close, this Agreement shall automatically terminate and neither party shall have any further rights or obligations hereunder, except that both parties agree to take whatever actions are reasonably necessary to terminate any other agreements that may have been executed in furtherance hereof. The representations and warranties set forth in this Section 505.1 shall survive each of the real estate closings provided for herein. 505.2 Developer's Representations. Developer represents and warrants to Agency as follows: (a) Authority. Developer is a duly organized limited liability company formed within and in good standing under the laws of the State of California. Developer has full right, power and lawful authority to purchase and accept the conveyance of each of the Parcels, and to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of the Developer. (b) Experience. The Developer is experienced in the development of the type of commercial projects which would satisfy the development requirements set forth herein. (c) No Conflict. To the best of Developer's knowledge, Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which the Developer is a party or by which it is bound. (d) No Developer Bankruptcy. Developer is not the subject of a current or pending bankruptcy proceeding. Until the Closing for the Property or any of the Parcels (as applicable), Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 505.2 not to be true as of the respective closing, immediately give written notice of such fact or condition to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute an exception which Agency shall have a right to approve or disapprove. If Agency elects to close the applicable Escrow following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of the applicable Closing, subject to such exception(s). If, following the disclosure of such information, Agency elects to not close the applicable Escrow, then this Agreement as to the applicable Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder; provided, however, that in the event Developer elects to purchase the Property pursuant to Option "B", and the Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this Agreement. In the event Developer elects to purchase the Property pursuant to Option "B", and the Initial Escrow fails to close, this Agreement shall automatically terminate 882/015610-0061 _3g_ 4 9 4W 380889.08 a11/26/03 and neither party shall have any further rights or obligations hereunder, except that both parties agree to take whatever actions are reasonably required to terminate any other agreements that may have been executed in furtherance hereof: The representations and warranties set forth in this Section 505.2 shall survive each of the real estate closings provided for herein. 600. DEFAULTS AND REMEDIES 601. Default Remedies. Subject to the extensions of time set forth in Section 702 of this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party cures such default within thirty (30) days from receipt of such notice, or if the nature of such default is that it cannot reasonably be expected to be cured within such thirty (30) day period, if such party, with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30) days from receipt of such notice, and completes such cure, correction or remedy with diligence. 602. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Agency shall also have, separate and independent from its Deed of Trust, the right to pursue damages up to the amount of the Agency Loan Amount, for Developer's defaults; provided, however, that in no event shall the Agency be entitled to consequential damages for any Developer breach. For purposes of this Agreement, "consequential damages" shall include, but not be limited to, potential loss of anticipated tax revenues from the Project or any component thereof. Notwithstanding the foregoing, however, in no event shall the Developer be entitled to damages of any kind from Agency, including damages for economic loss, lost profits, or any other losses or consequential damages of any kind. 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 District of the United States District Court in which such county is located. 603. Termination Prior to the Close of the Property Escrow or the Initial Escrow. 603.1 Termination Under Option "A". In the event Developer elects to purchase the Property pursuant to Option "A", the following termination provisions shall apply. (a) Termination by Developer. In the event that prior to the close of the Property Escrow (a) the Agency does not tender title to the Property pursuant to the applicable Grant Deed in the manner and condition and by the date provided in this Agreement, or (b) one or more of the Developer's Conditions Precedent to the Closing for the Property Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer, or (c) any default of the Agency under this Agreement prior to the close of the Property Escrow is not cured within the time set forth in Section 601 882/015610-0061 380889.08 a11/26/03 -39- hereof, after written demand by the Developer, or (d) the Developer timely disapproves the environmental condition of all or a portion of the Property pursuant to Section 207 hereof, then this Agreement may, at the option of the Developer, be terminated by written Notice thereof to the Agency. From the date of the written Notice of termination of this Agreement by the Developer to the Agency and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties with respect to the Property, or any portion thereof, by virtue of or with respect to this Agreement. In the event of Developer's disapproval of the environmental condition of a portion of the Property, pursuant to clause (d) above, Developer may, as an alternative to terminating this Agreement in its entirety, terminate this Agreement with respect to those portions of the Property which Developer has disapproved as a result of the environmental or soils condition thereof, by written Notice thereof to Agency; provided, however, Developer may not elect to terminate this Agreement with respect to the Suites Hotel Parcel or Residential Parcel 7 unless Developer terminates this entire Agreement. Upon such partial termination of this Agreement, there shall be no further rights or obligations between the parties with respect to the portions of the Property covered by said termination. (b) Termination by Agency. In the event that prior to the close of the Property Escrow (a) the Developer (or any successor in interest) assigns the Agreement or any rights herein or in the Property, or any portion thereof, in violation of this Agreement; or (b) one or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily commenced, then this Agreement shall, at the option of the Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date of the written Notice of termination of this Agreement by the Agency to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties. 603.2 Termination Under Option "B". In the event Developer elects to purchase the Property pursuant to Option `B", the following termination provisions shall apply. (a) Termination by Developer. In the event that prior to the close of the Initial Escrow (a) the Agency does not tender title to the Suites Hotel Parcel, Casitas Parcel 2, and/or any of the Initial Escrow Permitted Parcels Developer has elected to purchase at the Initial Escrow pursuant to the applicable Grant Deed(s) in the manner and condition and by the date provided in this Agreement, or (b) one or more of the Developer's Conditions Precedent to the Closing for the Initial Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer, or (c) any default of the Agency under this Agreement prior to the close of the Initial Escrow is not cured within the time set forth in Section 601 hereof, after written demand by the Developer, or (d) the Developer timely disapproves the environmental condition of the Property pursuant to Section 207 hereof, then this Agreement may, at the option of the Developer, be terminated by written Notice thereof to the Agency. From the date of the written Notice of termination of this Agreement by the Developer to the Agency and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties with respect to the Property, or any portion thereof, by virtue of or with respect to this Agreement. 882/015610-0061 380889.08 a11/26/03 -40" (b) Termination by Agency. In the event that prior to the close of the Initial Escrow (a) the Developer (or any successor in interest) assigns the Agreement or any rights herein or in the Suites Hotel Parcel, Casitas Parcel 2, and/or any of the Initial Escrow Permitted Parcels Developer has elected to purchase at the Initial Escrow in violation of this Agreement; or (b) one or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily commenced, then this Agreement shall, at the option of the Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date of the written Notice of termination of this Agreement by the Agency to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties. 604. Termination Prior to Subsequent Parcel Conveyance. In the event Developer elects to purchase the Property pursuant to Option "B", the following termination provisions shall apply to each Escrow subsequent to the Initial Escrow. 604.1 Termination by the Developer. In the event that, after the close of the Initial Escrow but prior to the close of any subsequent Escrow (a) the Agency does not tender title to the applicable Parcel(s) pursuant to the applicable Grant Deed in the manner and condition and by the date provided in this Agreement, or (b) one or more of the Developer's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer, or (c) any default of the Agency under this Agreement prior to the Closing is not cured within the time set forth in Section 601 hereof, after written demand by the Developer, then this Agreement with respect to that Escrow may, at the option of the Developer, be terminated by written Notice thereof to the Agency. From the date of the written Notice of termination of this Agreement by the Developer to the Agency, this Agreement shall be deemed terminated with respect to such Escrow and there shall be no further rights or obligations between the parties with respect to said Parcel(s) by virtue of or with respect to this Agreement; provided, however, that termination of this Agreement with respect to the terminated Escrow shall not relieve the Developer of its obligations to construct the Suites Hotel and the Casitas Development, and to purchase from Agency Residential Parcel 7 pursuant to the terms of this Agreement, which shall survive said termination. 604.2 Termination by the Agency. In the event that, after the close of the Initial Escrow but prior to the close of any subsequent Escrow (a) the Developer (or any successor in interest) assigns the Agreement or any rights herein or in the applicable Parcel(s) in violation of this Agreement; or (b) one or more of the Agency's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on or before the applicable Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily commenced, then this Agreement with respect to that Escrow shall, at the option of the Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date of the written Notice of termination of this Agreement 882/015610-0061 380889.08 al 1/26/03 -41- 4905 �"" V by the Agency to the Developer, this Agreement with respect to the such Escrow shall be deemed terminated and there shall be no further rights or obligations between the parties with respect to said Parcel(s) by virtue of or with respect to this Agreement; provided, however, that termination of this Agreement with respect to the terminated Escrow shall not relieve the Developer of its obligations to construct the Suites Hotel and the Casitas Development, and to purchase from Agency Residential Parcel 7 pursuant to the terms of this Agreement, all of which shall survive said termination. 605. Agency ption to Acquire Plans. If, at any time after the close of the Initial Escrow or the Property Escrow (as applicable), this Agreement is terminated by the Agency as a result of a default by the Developer, at the option of the Agency and without any additional consideration, which option may be exercised in the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed assignment in a form reasonably acceptable to the Agency of the Developer's right to use all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to the construction of the Project on the Property (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Project to date of the termination. Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency understands and agrees that the assignment to Agency under this Section 605 is subject and subordinate to any assignment which Developer may make to a lender providing financing for the project, and Agency agrees to execute any documents required by such lender acknowledging and effectuating such subordination of Agency's rights in and to the assignment. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. 606. Option Agreement. In addition to any rights and remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute discretion, to repurchase the Property, or a portion thereof, with all of the improvements thereon, from Developer in the event that, (i) Developer fails to commence construction of a Phase of Development within certain specified timeframes, (ii) after commencement of construction, Developer fails to continuously proceed with, and complete, construction of a Phase of Development within certain specified timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a portion thereof, in violation of the terms hereof. Said repurchase rights shall be as set forth in an option agreement to be recorded, at the applicable closing, (a) against the Property, if Developer elects to purchase the Property pursuant to Option "A", or (b) against each set of Related Parcels, if Developer elects to purchase the Property pursuant to Option "B". The form of the Option Agreement is attached hereto and incorporated herein as Attachment No. 14 ("Option Agreement"). 607. Right to Reverter and Power of Termination. In addition to any rights and remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute discretion, to reenter and take possession of the Property, or a portion thereof, with all of the improvements thereon, from Developer in the event that (i) Developer fails to commence construction of a Phase of Development within certain specified timeframes, (ii) after 882/015610-0061 n 380889.08 a11/26/03 -42- () commencement of construction, Developer fails to continuously proceed with and complete, construction of the Phase of Development within certain, specified timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a portion thereof, in violation of the terms hereof. Said rights shall be as set forth in each Grant Deed pursuant to which Agency shall convey the Property or a Parcel (as applicable) to Developer. 608. Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency 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 Developer, service of process on the Developer shall be made by personal service upon any officer of the Developer, whether made within or outside the State of California, or in such other manner as may be provided by law. 609. 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 default or any other default by the other party. 610. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 611. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. 612. Non -Liability of Officials and Employees of the Agency. No member, official or employee of the Agency or the City shall be personally liable to the Developer, 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 Developer or its successors, or on any obligations under the terms of this Agreement. 613. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. 700. GENERAL PROVISIONS 701. Notices, Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. 49�� 882/015610-0061 —43 _ 4 380889.08 a11/26/03 To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director To Developer: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, California 92211 Phone No.: 760-776-9900 Facsimile No.: 760-776-9971 Attention: Richard Oliphant With copies to: Selzer, Ealy, Hemphill & Blasdel, LLP 777 Tahquitz Canyon Way, Suite 328 Palm Springs, California 92262 Attention: Emily Perri Hemphill, Esq. and Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, California 92210 Phone No.: 760-360-7886 Facsimile No.: 760-345-7175 Attention: Francis A. Wong With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. Any written notice, demand or communication shall be deemed received upon delivery if delivered by hand, and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 702. 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 causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include the following: 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; 882/015610-0061 493 380889.08 a11/26/03 -44- governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which shall not excuse performance by the Agency). 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 of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and Developer. Notwithstanding any provision of this Agreement to the contrary, the lack of funding to complete the Project or any Phase of Development shall not constitute grounds of enforced delay pursuant to this Section 702. 703. Transfers of Interest in Property or Agreement. 703.1 Prohibition. The qualifications and identity of the Developer as the developer of high quality commercial developments are of particular concern to the Agency. Furthermore, the parties acknowledge that the Agency has negotiated the terms of this Agreement in contemplation of the development and operation of the Project on the Property and the property tax increment and transient occupancy tax revenues to be generated by the operation of the Project on the Property. Accordingly, until the Completion of Construction Date, (a) no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, (b) nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Property or the Project thereon (collectively referred to herein as a "Transfer"), except as provided in this Section 703. 703.2 Transfers Prior to Completion of Project. Prior to the Completion of Construction Date, the Agency may approve or disapprove a proposed Transfer in its sole and absolute discretion; provided that the Agency agrees to reasonably consider a proposed Transfer to an entity in which the Developer or Dick Oliphant retains a minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains management and control of the transferee entity. The Agency may condition its approval of such a proposed Transfer prior to the Completion of Construction Date (other than transfers approved pursuant to the immediately preceding sentence) upon the payment of one-half of the net proceeds of the Transfer. Notwithstanding the foregoing, Agency approval of a Transfer prior to the Completion of Construction Date shall not be required in connection with any of the following: (a) The conveyance or dedication of any portion of the Property to the City or other appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project (as defined herein). (b) Any assignment for financing purposes (subject to such financing being permitted pursuant to Section 311 herein), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project or of a Phase of Development. 40.9 882/015610-0061 380889.08 al1/26/03 -45- (c) A transfer of any of the Suites Hotel, the Suites Hotel Parcel, the Parcel 2 Casitas Development Component, Casitas Parcel 2, the Parcel 3 Casitas Development Component, Casitas Parcel 3, the Parcel 4 Casitas Development Component and/or Casitas Parcel 4 to Center Point Hotel Development, LLC, a California limited liability company. (d) A transfer of any of the Parcel 8 Sanctuary Villas Component, Sanctuary Villas Parcel 8, the Parcel 9 Sanctuary Villas Component, and/or Sanctuary Villas Parcel 9 to Center Point Sanctuary, LLC, a California limited liability company. (e) A transfer of any of the Parcel A Medical Office/Surgical Facility Component, Medical Office/Surgical Facility Parcel A, Parcel 10 Medical Office/Surgical Facility Component, Medical Office/Surgical Facility Parcel 10, Parcel 11 Medical Office/Surgical Facility Component, Medical Office/Surgical Facility Parcel 11, Parcel 12 Medical Office/Surgical Facility Component, and/or Medical Office/Surgical Facility Parcel 12 to Medical Service Center of La Quinta, LLC, a California limited liability company intended to be formed by Developer. (f) A transfer of any of the Parcel 5 Residential Development, Residential Parcel 5, the Parcel 7 Residential Development, and/or Residential Parcel 7 to (i) Ehline Development Co., a California corporation ("Ehline"), or (ii) a limited liability company or limited partnership to be formed by Ehline, and in which Ehline is the managing member of the liability company or the general partner of the limited partnership. In the event of a Transfer by Developer under subparagraphs (a), (b), (c), (d), (e), or (f) above not requiring the Agency's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such Transfer it shall give written notice to Agency of such assignment and satisfactory evidence that the assignee has assumed in writing through an assignment and assumption agreement of all of the obligations of this Agreement. In the event such transfer is under subparagraph (e) or (f) above (other than a transfer to Ehline), Developer shall, along with the notice required to be given pursuant to the immediately preceding sentence, provide Agency with evidence that such proposed transferee entity has been duly formed in accordance with the laws of the State of California. Any Transfer by Developer under subparagraph (f) above may include the right to receive disbursements of the Agency Loan pursuant to the terms of this Agreement. 703.3 Assignment and Assumption of Obligations. An assignment and assumption agreement in form reasonably satisfactory to the Agency's legal counsel shall also be required for all proposed Transfers requiring the Agency's approval. 703.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 703.5 Assignment by Agency. The Agency may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval 882/015610-0061 60 O 380889.08 a11/26/03 -46- shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer any of its interests hereunder to the City at any time without the consent of the Developer. 704. Relationship Between Agency and Developer. It is hereby acknowledged that the relationship between the Agency and the Developer is not that of a partnership or joint venture and that the Agency and the Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, the Agency shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. 705. Agency Approvals and Actions. The Agency shall maintain authority of this Agreement and the authority to implement this Agreement through the Agency Executive Director (or his duly authorized representative). Any reference to the Agency Executive Director herein shall be deemed to include such authorized representative. The Agency Executive Director, or his or her designee, shall have the authority to make approvals, issue interpretations, waive provisions, and/or enter into amendments of this Agreement on behalf of the Agency so long as such actions do not materially or substantially change the uses or development permitted on the Property, or materially or substantially add to the costs incurred or to be incurred by the Agency as specified herein, and such approvals, interpretations, waivers and/or amendments may include extensions of time to perform as specified in the Schedule of Performance. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the Agency Board. 706. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. This Agreement is executed in two (2) originals, each of which is deemed to be an original. 707. Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Attachment Nos. 1 through 20, which are incorporated herein. 708. Real Estate Brokerage Commission. The Agency and the Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with the Developer's acquisition of the Property from the Agency. The parties agree to defend and hold harmless the other party from any claim to any such commission or fee from any other broker, agent or finder with respect to this Agreement which is payable by such party as a result of the actions of the indemnifying party. 709. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. 882/015610-0061 380889.08 a11/26/03 -47- C> ! Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 710. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation". This Agreement shall be interpreted as though prepared jointly by both parties. 711. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 712. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each Ply• 713. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 714. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during a day, that time shall be Pacific Standard Zone Time. 715. Legal Advice. Each parry represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 716. Time of Essence. Time is expressly made of the essence with respect to the performance by the Agency and the Developer of each and every obligation and condition of this Agreement. 717. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or 882/015610-0061 380889.08 at 1/26/03 -4 8- it appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 718. 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 such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. 719. Time for Acceptance of Agreement by Agency. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before forty-five (45) days after signing and delivery of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. 982/015610-0061 380889.08 a11/26/03 -49- IN WITNESS WHEREOF, the Agency and the Developer have executed this Disposition and Development Agreement as of the date set forth above. ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP M. Katherine Jenson Agency Counsel AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic 0 Acting Executive Director "Grantor" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President 882/015610-0061 380889.08 al1/26/03 -50- Jl ATTACHMENT NO.1 PROPERTY LEGAL DESCRIPTION IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027138" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 960.27 FEET; THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE; THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00026140" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °42'33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 4404432" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41 ", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 1089797 O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; 882/015610-0061 380889.08 a11/26/03 THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL licit, A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL licit, A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C" AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 41, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011'26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11 005'41 ", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033102" EAST, A DISTANCE OF 4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033123" EAST; THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 0003228"9 AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75053'46" EAST; 882/015610-0061 2 380889.08 a11/26/03 j -- THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 07041'06"31 AN ARC DISTANCE OF 280.60 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 68013' 18" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 67006156" EAST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 66001' 12" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 0002813711 WEST, A DISTANCE OF 153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36057'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 42.47 ACRES (1,8509000 SQUARE FEET), MORE OR LESS. 882/015610-0061 -3 - 6 7380889.08 al1/26/03 P.O.C. CTR. 1 /4 COR. SEC. 19 _ 5 005.00' `E - MILES AVENUE- 75.00• N 89'31'23" E 487.01' N 89'33' N 00'28'37" W 153.41' T.P.O.B. n 9 S� i in s60.27 -�� L7 S 00'26'40" E 112.88' "Y .\ S 44'44'32" E )► \\� 90.06' C 2 .« SITE N 89*4 56'" E N ss•0R�,2 E AREA-42.47 AC. L4 PORTION OF THE S. 1 /2 OF N 1 " �3 SEC. 19, T.5S., R.7E., S.B.M. .� (R) N 75 53 46 E � R) v pEt\ES L3 PT. B NF�r 1 "=300' . N C t y. N 86' 11'26" E `, /�� �3" £ C4C�0 R LINE DATA NUMBER DIRECTION DISTANCE L1 S 00' 18'01." E 397.49' L2 N 48'09 56" W 22.00' L3 N 75`33'02" E 4.22' L4 N 6706'56" E 20.00' L5 S 6706'56" W 20.00' L6 N 00'26'40" W 20.00' L7 N :89'33'22" E 80.00' EXCEPTION PARCEL s 7q, N (R 0` ~ CURVE DATA NUMBER NUMBER DELTA DELTA RADIUS RADIUS ARC LENGTH ARC LENGTH TANGENT TANGENT C7 C1 41'42'33 41'42'33" 440.00 440.00 320.30 320.30 1 7.62 167.62 rn C2 ac n9 w� 45 2T41" nn m 80.00 G� AA 63.48 i\ 5'J 33.52 C3 1 02'57'46" 4565,17 236.07 t 18.06 C4 19'24'03" . 2500.00 846.52 427.35 C5 11'05'.41 " 2072.00 401.22 201.24 C6 19.58*08" 2092.00 729.11 368.29 C7 02' 12'44" 2072.00. 80.00 40.01 C8 0T41.-''06" :209100 1280.60 1140.51 C9 00*32*28" . 2500.00 123.61 111.81. C10 18'S1'35" Z$00.00 822.91 415.21 I'll 0 rn W N O 0 PT. A 1-� N 42'S9'27" E � cR> '7 w 4¢48 ¢ wwIIAA.. n L2 J.N. 1612 882/015610-0061 380889.08 a11/26/03 -4- ATTACHMENT NO.2 SITE MAP The Site Map is not a tract map and the parcels depicted thereon are not legal parcels. Upon Developer's preparation of a tract map that creates legal parcels substantially consistent with the Site Map, Developer shall prepare legal descriptions for each Parcel, and Agency and Developer shall cooperate to attach such legal descriptions to any document where such descriptions are required. LOTS LAND USE *LOT 'H' 23483 s f. LOT 1 RESTAURANT 0.54 «. LOT 2 RESORT CASITAS *LOT •D• 14930 s f. 0.34 «. LOT 3 - RESORT CASITAS LOT 1 40186 s.f. LOT 4 RESORT CASITAS 0.92 « LOT 5 RESIDENTIAL *LOT 8 PARK LOT 7 - RESIDENTIAL *LOT •C• 14297 0. LOT 8 - THE SANCTUARY a33 a«. %yam LOT 9 - THE SANCTUARY LOT 10 - MEDICAL OFFICE BUILDINGS Q LOT 11 MEDICAL OFFICE BUILDINGS 1, A_ LOT 12 - MEDICAL OFFICE BUILDINGSLOT 13 - RESTAURANT t LOT -14 - HOTEL *LOT •E 54M s.f. 0.13 «. COMMON LOTS LAND USE LOT •A' - - - - - - - MEDICAL OFFICE PARKING / LANDSCAPE LOT 'B' - - - - - SEELEY DRIVE *LOT 'C- - - - - - - 20' PARKWAY (WASHINGTON STREET) * LOT 'D• - - - - ` CITY LANDSCAPE ENTRY * LOT -E- - - - - - - - 20' PARKWAY (WASHI!IGTON STREET) LOT •F• - - - - - - WELLSITE * LOT 'G- - - - - - WELLSITE (N.A.P.) * LOT IW - - - - - - 20' PARKWAY (MILES AVENUE) * LOT •r - - - - - - 20' PARKWAY (MILES AVENUE) LOT 14 145094 a.f. 3.35 «. LOT 13 48813 s.1. 1.12 «. * LOT •' 5480 s.f. WALES AWNUE 0.12 or - LOT 3 149672 0. 3.44 «. LOT 4 - 126628 af. 2.91 «. LOT 2 96934 a.f. 2.27 «. LOT 'A• 282056 a.f. 6.47 «. sue., 120233� LOT 12 315M 0J. LOT 10 31555 a.f. LOT 0.73 «. �110«1• LOT 'A• 11 10T •F• LOT 9- 4eoes a.f. 1.10 00. * Thew parcels are not being conveyed by the 1A Quints Redevelopment Agency. They are depicted on this Site Map for convenience of refeaence only. LOT 5 95591 a.f. 2.19 «. LOT •G' 225M a.f. 0.52 «. *LOT 6 116798 a.f. 2.68 «. LOT 7 3915M J. 8.92 so. LOT 8 163122 al 3,74 «. I X N.T.S. NOVEMBER 21. 2003 882/015610-0061 380889.08 al1/26/03 ATTACHMENT NO.3 PURCHASE PRICE Sanctuary Villas Parcel 8 $ 841,193.42 Sanctuary Villas Parcel 9 247,409.82 Casitas Parcel 2 5109563.92 Casitas Parcel 3 773,718.02 Casitas Parcel 4 654,511.46 Landscape Parcel C 0 Landscape Parcel E 0 Landscape Parcel H 0 Landscape Parcel I 0 Medical Office/Surgical Facility A 1,455,219.64 Medical Office/Surgical Facility 10 164,190.15 Medical Office/Surgical Facility 11 276,649.17 Medical Office/Surgical Facility 12 164,190.15 Residential Parcel 5 135,694.34 Residential Parcel 7 557,028.39 Restaurant Parcel 1 206,924.58 Restaurant Parcel 13 251,908.18 Seeley Drive Parcel 0 Suites Hotel Parcel 753,475.39 Well Site Parcel 116,957.37 Property $7,109,634.00 j 1. 882/015610-0061 380889.08 a11/26/03 ATTACHMENT NO.4 FORM OF GRANT DEED [See Following Pages] 882/015610-0061 { 380889.08 a11/26/03 j RECORDING REQUESTED BY, MAIL TAX STATEMENTS TO AND WHEN RECORDED MAIL TO: CP DEVELOPMENT LA QUINTA, LLC 77-900 Avenue of the States Palm Desert, CA 92211 Attn: Richard Oliphant This document is exempt from payment of a recording fee pursuant to Government Code Section 27383 GRANT DEED [Parcel/Property] For valuable consideration, receipt of which is hereby acknowledged, The LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan ("Redevelopment Plan") for the La Quinta Redevelopment Project No. 2 (the "Project Area"), under the Community Redevelopment Law of California, hereby grants to CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Developer"), the real property hereinafter referred to as the "[Parcel/Property]," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described there. 1. Reservation of Mineral Rights. Agency excepts and reserves from the conveyance herein described all interest of the Agency in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than five hundred (500) feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the [Parcel/Property] lying more than five hundred (500) feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said [Parcel/Property] or other lands, but without, however, any right to use either the surface of the [Parcel/Property] or any portion thereof within five hundred (500) feet of the surface for any purpose or purposes whatsoever, or to use the [Parcel/Property] in such a manner as to create a disturbance to the use or enjoyment of the [Parcel/Property]. 2. [Parcel/Property] Conveyance in Accordance With Redevelopment Plan, Disposition and Development Agreement. The [Parcel/Property] is conveyed in accordance with and subject to the Redevelopment Plan for the La Quinta Redevelopment Project No. 2 ("Redevelopment Plan") which was approved and adopted by Ordinance No. 139, on May 16, 1989, of the City Council of the City of La Quinta, and a Disposition and Development Agreement entered into between Agency and Developer dated , 2003 (the "DDA"), a copy of which is on file with the Agency at its offices as a public record and which is incorporated herein by reference. The DDA generally requires the Developer to construct and operate on the [Parcel/Property] a [Project Description] (the "[Phase of Development/Project]"), and other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 3. Permitted Uses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the [Parcel/Property] or any part thereof, that upon 882/015610-0061 380889.08 a11/26/03 the date of this Grant Deed ([Parcel/Property]) ("Grant Deed") and during construction through completion of development and thereafter, the Developer shall devote the [Parcel/Property] to the uses specified in the Redevelopment Plan for the periods of time specified therein. All uses conducted on the [Parcel/Property], including, without limitation, all activities undertaken by the Developer pursuant to the DDA, shall conform to the DDA, the Redevelopment Plan, and all applicable provisions of the City Municipal Code. The foregoing covenants shall run with the land. 4. Restrictions on Transfer. The Developer further agrees that for the period commencing upon the date of this Grant Deed and until the date Developer obtains a Release of Construction Covenants for the [Phase of Development/final Phase of Development to be constructed on the Property], no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the [Parcel/Property] or the [Phase of Development/Project] thereon, except as permitted or approved by the Agency pursuant to Section 703 of the DDA. 5. Binding on Successors. All of the terms, covenants and conditions of this Grant Deed shall be binding upon the Developer and the permitted successors and assigns of the Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall include any other successors and assigns as herein provided. 6. Nondiscrimination. The Developer herein covenants by and for itself, its 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 Developer itself or any person claiming under or through Developer, 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. The Developer shall refrain from restricting the rental, sale or lease of the [Parcel/Property] on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land". 882/015610-0061 380889.08 a11/26/03 -2- J �j (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased". (c) In contracts relating to the disposition of the realty: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises". 7. Agency's Right of Reverter and Power of Termination. The Agency has the right, at its election, to reenter and take possession of the [Parcel/Property], with all improvements thereon, and terminate and revest in the Agency the estate conveyed to the Developer if after the closing and prior to the Agency's issuance of the Release of Construction Covenants for the [Phase of Development/final Phase of Development to be constructed on the Property], the Developer (or its successors in interest) shall: a. fail to start construction of the [Phase of Development/Project] as required by the DDA for a period of ninety (90) days after written notice thereof from the Agency; or b. abandon or substantially suspend construction of the [Phase of Development/Project] required by the DDA and fail to resume construction within ninety (90) days after written notice thereof from the Agency; or C. contrary to the provisions of Section 703 of the DDA Transfer or suffer any involuntary Transfer in violation of the DDA, and such Transfer is not rescinded within sixty (60) days of notice thereof from the Agency. For purposes of this Grant Deed, the term "construction" shall mean excavation work or physical construction, but shall not include any grading work completed by Developer on the [Parcel/Property] prior to the execution date hereof. Such right to reenter, terminate and revest shall be subject to and be limited by, shall not defeat, render invalid or limit, and shall be subordinate to: 1. Any mortgage or deed of trust permitted by the DDA; or 882/015610-0061 380889.08 al1/26/03 -3- 2. Any rights or interests provided in the DDA for the protection of the holders of such mortgages or deeds of trust. Upon the revesting in the Agency of title to the [Parcel/Property] as provided in this Section 7, the Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the [Parcel/Property] as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the [Phase of Development/Project], or such improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for such [Parcel/Property] or part thereof in the Redevelopment Plan. Upon such resale of the [Parcel/Property], the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the [Parcel/Property] which is permitted by the DDA, shall be applied: i. First, to reimburse the Agency, on its own behalf or on behalf of the City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but specifically, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the [Parcel/Property] or part thereof (but less any income derived by the Agency from the [Parcel/Property] or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the [Parcel/Property] or part thereof which the Developer has not paid; any payments made or necessary to be made to discharge any encumbrances or liens existing on the [Parcel/Property] or part thereof at the time or revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the [Parcel/Property], or part thereof; and any amounts otherwise owing the Agency, and in the event additional proceeds are thereafter available, then ii. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred by Developer for the acquisition and development of the [Parcel/Property] and for the improvements existing on the [Parcel/Property] at the time of the reentry and possession, less (b) any gains or income withdrawn or made by the Developer from the [Parcel/Property] or the improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its property. The rights established in this Section 7 are not intended to be exclusive of any other right, power or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that the Agency will have conveyed the [Parcel/Property] to the Developer for redevelopment purposes, particularly for development of the [Phase of Development/Project], and not for speculation in undeveloped land. 8. Violations Do Not Impair Liens. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or 882/015610-0061 r, 380889.08 a11/26/03 -4- t) 1 render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by Section 703 of the DDA. 9. Covenants Run With Land. All covenants contained in this Grant Deed shall be covenants running with the land. All of Developer's obligations hereunder, except as otherwise provided hereunder, shall terminate and shall become null and void upon the expiration of the effectiveness of the Redevelopment Plan. Every covenant contained in this Grant Deed against discrimination contained in paragraph 6 of this Grant Deed shall remain in effect in perpetuity. 10. Covenants For Benefit of Agency. All covenants without regard to technical classification or designation shall be binding for the benefit of the Agency, and such covenants shall run in favor of the Agency for the entire period during which such covenants shall be in force and effect, without regard to whether the Agency is or remains an owner of any land or interest therein to which such covenants relate. The Agency, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. 11. Revisions to Grant Deed. Both Agency, its successors and assigns, and Developer and the successors and assigns of Developer in and to all or any part of the fee title to the [Parcel/Property] shall have the right with the mutual consent of the parties to consent and agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or entity having any interest less than a fee in the [Parcel/Property]. However, Developer and Agency are obligated to give written notice to and obtain the consent of any first mortgagee prior to consent or agreement between the parties concerning such changes to this Grant Deed. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. No amendment to the Redevelopment Plan shall require the consent of the Developer, but no such amendment shall diminish or restrict the Developer's rights or expand the Developer's obligations hereunder or under the DDA without the Developer's consent. AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Date: 92003 By: ATTEST: Secretary of the Agency Acting Executive Director 882/015610-0061 380889.08 a11/26/03 -5- 016 APPROVED AS TO FORM: RUTAN & TUCKER, LLP M. Katherine Jenson Agency Counsel Date: 92003 DEVELOPER: CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member 0 Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager 0 Its: Richard R. Oliphant President 882/015610-0061 380889.08 a11/26/03 -6- STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, 51 personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 _7_ 313 380889.08 al1/26/03 EXHIBIT A LEGAL DESCRIPTION OF [Parcel/Property] [TO BE INSERTED] 882/015610-0061 380889.08 al1/26/03 ATTACHMENT NO.5 DISBURSEMENT SCHEDULE AND PROCEDURES A. DISBURSEMENT OF AGENCY LOAN [All disbursements subject to the Disbursement Procedures below] Notwithstanding the timeframes listed below for the disbursements to Developer of portions of the Agency Loan, no portion of the Agency Loan shall be disbursed to Developer until the latest of the following dates: (i) the date Developer (a) completes the installation of the foundation of the Suites Hotel, (b) completes the first pavement lift of Seeley Drive, and (c) constructs all of the required curbs and gutters along Seeley Drive; (ii) the date Developer acquires fee title to Residential Parcel 7 from the Agency; and (iii) the date Ehline Development Co., a California corporation, purchases Residential Parcel 7 from Developer, and assumes all of Developer's right, title, and interest in and to this Agreement with respect to the development of the Parcel 7 Residential Development on Residential Parcel 7, thereby becoming the "Developer" with respect to the development of the Parcel 7 Residential Development. 1. Architectural, Structural Engineering Component of the Agency Loan. Developer shall be entitled to receive, at the time periods specified in this Section 1, portions of the Agency Loan (referred to herein as the "Architectural and Structural Engineering Component of the Agency Loan") for purposes of reimbursing Developer for (i) architectural and structural engineering costs that have been incurred by Developer in its preparation of plans and drawings for the Affordable Housing Component ("Affordable Housing Component Plans and Drawings"), and (ii) costs Developer incurs to cause the Affordable Housing Component Plans and Drawings to be in compliance with Title 24 of the Uniform Building Code, which has been incorporated by reference into the La Quinta Municipal Code. a. As of the date that is sixty (60) days after the Effective Date, Developer shall be entitled to a portion of the Architectural and Structural Engineering Component of the Agency Loan in an amount up to, but not exceeding, Fifty -Two Thousand Dollars ($52,000). b. As of the date that is one hundred fifty (150) days after the Effective Date, Developer shall be entitled to a portion of the Architectural and Structural Engineering Component of the Agency Loan in an amount up to, but not exceeding, Ninety -Eight Thousand Dollars ($98,000). 2. Civil/Soil Engineering Component of the Agency Loan. Developer shall be entitled to receive, at the time periods specified in this Section 2, portions of the Agency Loan (referred to herein as the Civil/Soil Engineering Component of the Agency Loan") for purposes of reimbursing Developer for civil engineering and soil engineering costs that have been incurred by Developer in its preparation of Residential Parcel 7 for development of the Affordable Housing Component. 882/015610-0061 380889.08 a11/26/03 Or.�a a. As of the date that is sixty (60) days after the Effective Date, Developer shall be entitled to a portion of the Civil/Soil Engineering Component of the Agency Loan in an amount up to, but not exceeding, Seven Thousand Dollars ($7,000). b. As of the date that is ninety (90) days after the Effective Date, Developer shall be entitled to a portion of the Civil/Soil Engineering Component of the Agency Loan in an amount up to, but not exceeding, Twenty Thousand Dollars ($20,000). C. As of the date that is one hundred eighty (180) days after the Effective Date, Developer shall be entitled to a portion of the Civil/Soil Engineering Component of the Agency Loan in an amount up to, but not exceeding, ten Thousand Dollars ($10,000). d. As of the date that is two hundred ten (210) days after the Effective Date, Developer shall be entitled to a portion of the Civil/Soil Engineering Component of the Agency Loan in an amount up to, but not exceeding, Eighty -Five Thousand Dollars ($85,000). e. As of the date that is two hundred forty (240) days after the Effective Date, Developer shall be entitled to a portion of the Civil/Soil Engineering Component of the Agency Loan in an amount up to, but not exceeding, Fifteen Thousand Dollars ($15,000). 3. Permits/Fees Component of the Agency Loan. Developer shall be entitled to receive, at the time periods specified in this Section 3, portions of the Agency Loan (referred to herein as the "Permits/Fees Component of the Agency Loan") for purposes of reimbursing Developer for permit costs incurred, and building permit fees paid, for development of the Affordable Housing Component. a. As of the date that is one hundred eighty (180) days after the Effective Date, Developer shall be entitled to a portion of the Permits/Fees Component of the Agency Loan in an amount up to, but not exceeding, One Hundred Fifty Thousand Dollars ($150,000). b. As of the date that is two hundred ten (210) days after the Effective Date, Developer shall be entitled to a portion of the Permits/Fees Component of the Agency Loan in an amount up to, but not exceeding, One Hundred Fifty Thousand Dollars ($150,000). C. As of the date that is two hundred forty (240) days after the Effective Date, Developer shall be entitled to a portion of the Permits/Fees Component of the Agency Loan in an amount up to, but not exceeding, One Hundred Fifty -Two Thousand Dollars ($152,000). 4. Acquisition Costs Component of the Agency Loan. As of the date that is three hundred days after the Effective Date, Developer shall be entitled to a portion of 882/015610-0061 1,'1) 380889.08 A 1/26/03 -2- 04.1 the Agency Loan in an amount up to, but not exceeding, One Million Four Hundred Seven Thousand Dollars ($1,407,000) for purposes of reimbursing Developer for a portion of the costs Developer incurred in acquiring Residential Parcel 7 from CP Development La Quinta, LLC, a California limited liability company. 5. Construction Costs Component of the Agency Loan. As of the date that is three hundred ninety (390) days after the Effective Date, Developer shall be entitled to a portion of the Agency Loan, in an amount up to, but not exceeding, Three Hundred Seventy -Four Thousand Dollars ($374,000) for purposes of reimbursing Developer for the costs incurred in constructing the Affordable Housing Component. B. DISBURSEMENT PROCEDURES AND REQUIREMENTS 1. Conditions for Each Disbursement. Prior to each and every disbursement of a portion of the Agency Loan, the following conditions shall be satisfied: a. Promissory Note; Deed of Trust. Developer shall have executed the Promissory Note and Deed of Trust, and shall have delivered to Agency the Deed of Trust for recordation in the Official Records of the County of Riverside. b. Agency's Title Policy. Agency shall have accepted the Title Policy for Residential Parcel 7, in accordance with Section 204 of the Agreement. C. Evidence of Insurance. Developer shall have timely submitted to the Agency's Executive Director, and obtained approval from same, of Developer's evidence of insurance. d. Declaration. Developer shall have signed the Declaration and delivered same to Agency for recordation. e. No Default. Developer shall not be in default of its obligations under the Agreement or under the Declaration. f. Land Use Entitlements. Developer shall have obtained all of the necessary land use entitlements to construct the Parcel 7 Residential Development. g. Application. Developer shall have delivered the Application attached hereto as Exhibit "A", including supporting documentation showing the work performed and the actual cost thereof to the Agency Executive Director at least fifteen (15) business days prior to the requested disbursement. The Application shall be completed and certified to be accurate by Developer. The Application shall specifically identify the nature of each expense, and shall identify the status of completion of such construction. 882/015610-0061 380889.08 al1/26/03 -3- h. Approval of Application. The Executive Director shall review and approve the Application and accompanying documents, and the Executive Director shall determine that the work is reimbursable pursuant to this Attachment No. 5 within ten (10) business days. The Executive Director shall advise Developer of any issues within the ten (10) day period and shall pay by check all uncontested amounts requested by the Application within twenty (20) days of the receipt of the Application. i. Lien Waivers. Agency shall have received unconditional releases of mechanics' and materialmen's lien rights and stop notice rights, pursuant to the California Civil Code, executed by all contractors, subcontractors, and other persons rendering services or delivering materials covered by the requests made in the Application. j . Frequency. Agency shall not be obligated to make disbursements more frequently than once per month. k. Use of Disbursements. Developer shall use or apply all of the assistance set forth in this Attachment No. 5 solely for reimbursement or payment of the items described in the Application pursuant to which the disbursement was made. 882/015610-0061 J � 3 380889.08 a11/26/03 -4- EXHIBIT "A" FORM OF APPLICATION FOR DISBURSEMENT [SEE FOLLOWING PAGES] ► 1 ,ri j44 882/015610-0061 380889.08 al1/26/03 TO: La Quinta Redevelopment Agency ("Agency") REQUEST NO. DATE: "DEVELOPER": CP DEVELOPMENT LA QUINTA, LLC PROJECT: CENTER POINT DEVELOPMENT PROJECT: AFFORDABLE HOUSING COMPONENT Pursuant to a Disposition and Development Agreement dated as of (the "Agreement") between Developer and Agency, Developer hereby requests that Agency disburse $ of the financial assistance identified in Attachment No. 5 to the Agreement. This advance is requested to pay for the expenses set forth below as described in Attachment No. 5. Developer hereby certifies that the amounts shown on the attached schedule and the accompanying invoices represent costs incurred for improvements identified which are eligible for reimbursement at this time in accordance with the provisions of Attachment No. 5 and the Agreement. SUBMITTED BY: REVIEWED AND APPROVED BY: Item of Cost Date: Agency Inspector Date: DISBURSEMENT SCHEDULE Maximum Reimbursement Amount Previously Amount Disbursed Amount Requested this Disbursement 882/015610-0061 J 380889.08 a11/26/03 ATTACHMENT NO.6 AFFORDABLE HOMES MIX ParkPlace at Centre Pointe Washington Miles AFFORDABLE HOMES One Story Single Family Homes (Number of Units) # of Bedrooms / # of Bathrooms Square Foota e 1430 1672 1778 3bd/2Y2ba 1 7 7 1 4 Two Story "Cluster" Homes (Number of Units) # of Bedrooms / # of Bathrooms Square Footage 1270 1295 1400 1520 3bd/2ba 4 3 bd/2Y2ba 5 7 4bd/2ba 6 882/015610-0061 J 380889.08 a11/26/03 ATTACHMENT NO. 7 RESIDENTIAL PARCEL 7 SITE MAP %� tr '��. Vf Af- y 882/015610-0061 380889.08 al 1/26/03 ATTACHMENT NO.8 SCOPE OF DEVELOPMENT I. GENERAL SUMMARY This document outlines the general requirements for the improvements to be constructed on the Property. Specific details are addressed in the Center Point Project Specific Plan SP2001- 055, as amended by Resolution No. 2003-35, which was duly adopted by the City Council on June 3, 2003 ("Specific Plan"), and in the construction plans that will be prepared for the development. The Property is identified as APN 604-04-12, APN 604-04-13, APN 604-04-23, and APN 604-04-37, located southeast of the intersection of Miles Avenue and Washington Street in the City of La Quinta, and is approximately 43.58 acres in size. The Specific Plan provides for the development of a commercial development project that contains all of the following: (i) a medical office/surgical facility ("Medical Office/Surgical Facility"), (ii) a sanctuary villas development containing approximately 26 villas ("Sanctuary Villas Development"), (iii) a mid -price suites hotel containing approximately 134 guest rooms ("Suites Hotel"), (iv) a resort -style condominium/casitas project containing approximately 136 casitas units ("Casitas Development"), (v) 2 sit-down restaurants (the "Restaurants"), and (vi) two single family residential developments containing, collectively, approximately 67 units ("Single Family Developments"), all as further described below. II. PROJECT COMPONENTS A. Medical Office/Surgical Facility The Medical Office/Surgical Facility, which will be constructed on approximately 9.2 acres, will contain approximately 120,000 square feet, in the aggregate, and house a medical office and surgical center, which will provide medical screening, testing, diagnosis, and treatment, in several medical disciplines, including the areas of neurosurgery, orthopedic and vascular care, and pain management. The facility will provide individual offices for physicians associated with the facility, as well as areas for patient treatment and diagnosis, approximately 5 operating theaters, and a recovery room containing beds for short term stays. The facility will not include emergency room facilities, and all patient care will be on a pre -arranged basis. The maximum height of the Medical Office/Surgical Facility buildings will be two stories. B. Sanctuary Villas Development The Sanctuary Villas Development, which will be constructed on approximately 5.5 acres, will feature a spa and approximately 26 villas, each containing 1200 square feet or more. Each of the buildings in the Sanctuary Villas Development will be one story in height, with the units constructed in a configuration to maximize privacy and views. The Wellness Center, located in the center of the Sanctuary Villas Development, will be two stories in height. Villas within the Sanctuary Villas Development will be individually sold, however, individual owners will be encouraged to rent their units to transient guests when not being used by the owners. All such transient occupancies will be subject to the City's transient occupancy tax ordinance. 882/015610-0061 380889.08 al1/26/03 C. Suites Hotel The Suites Hotel, which will be constructed on approximately 3.8 acres, will consist of a three-story, "extended stay" hotel having approximately 134 units. The Suites Hotel will be branded as a Homewood Suites by Hilton, or another national brand which has a centralized reservation system, such as a Hawthorne Suites or a Staybridge Suites Hotel by Holiday Inn, and will offer both parlor and one bedroom suites, all of which will include fully equipped kitchens. The Suites Hotel will also have a public lobby area, a pool and an exercise facility. The Suites Hotel will be one of the components of the Project that will be constructed in the first phase of development of the overall Project. The Suites Hotel will have approximately 132 parking spaces for hotel guests, and the parking area landscaping will provide shading. D. Casitas Development The Casitas Development, which will be constructed on approximately .7.6 acres, will consist of the construction of approximately 136 condominiums, which will be built in three phases and located adjacent to the Suites Hotel. The buildings within the Casitas Development will be one and two stories in height. Each of the condominium units is expected to contain two bedrooms. The Casitas Development will also contain pool areas for the use of condominium owners and guests. Each condominium unit will be individually sold, fully furnished, to a private owner. All owners will be encouraged to make their unit available for transient rentals when not in use, and all such transient uses will be subject to the City's transient occupancy tax ordinance. The Casitas Development is expected to be constructed in three phases, with the first phase including approximately 40 units. This first phase will be constructed concurrently with the Suites Hotel, as part of the first phase of the overall Project. The Casitas Development will have approximately 210 parking spaces, and the parking area landscaping will provide shading in accordance with the Specific Plan. E. Restaurants (Parcel 1 Restaurant; Parcel 13 Restaurant) The overall Project includes two Restaurant pads, with one pad on approximately .98 acres, and the other pad on approximately 1.22 acres. One of the pads will be used for the construction of a "dinner house" Restaurant to provide a quality dining experience for owners and guests within the Project. The second Restaurant will be a full -service, sit-down style Restaurant offering, at a minimum, breakfast and lunch. The individual design and construction of the Restaurants will be determined when the operators are identified. Neither Restaurant will be of the "fast food" or "quick serve" type, and neither will be permitted to have a drive through. F. Single Family Developments The Project will contain two Single Family Developments. The first of the Single Family Developments, which is referred to in the Agreement as the "Parcel 5 Residential Development," will be constructed on approximately 2.2 acres, and will consist of 13 one and two story "cluster courtyard villas." The second of the Single Family Developments, which is referred to in the Agreement as the "Parcel 7 Residential Development," will be constructed on approximately 8.9 acres, and will consist of 54 single-family homes, with 25 one-story single-family homes on the perimeter of the development, and 29 courtyard single family homes in the interior of the 882/015610-0061 :14. 380889.08 a11/26/03 -2- development. Forty of the homes in the Parcel 7 Residential Development will be restricted for sale to moderate -income families at an affordable housing cost. The residential units within the Single Family Developments will range in size from 1250 square feet to 2800 square feet. All units will have two car garages with the exception of approximately 6 of the cluster courtyard villas, each of which will have single car garages. Each of the Single Family Developments will include common area with pools, barbeque areas and passive play areas. III. DEVELOPMENT CONCEPT The Property shall be improved by the Developer in accordance with the provisions of this Agreement, the Specific Plan, and all applicable codes, ordinances, and statutes including requirements and procedures set forth in the La Quinta Municipal Code, and the Redevelopment Plan regulations adopted in conjunction with or subsequent to execution of this Agreement. IV. ON -SITE DEVELOPMENT AND IMPROVEMENTS Developer shall prepare such plans, reports, and studies, and obtain such permits and approvals as required, including, but not limited to, grading plans for construction of the Project. Plans shall be prepared by a licensed civil engineer in good standing and subject to the approval of the Director of Public Works. Developer shall grant and permit all necessary and appropriate utility easements and rights for the development of the Project, including but not limited to sanitary sewers, storm drains, water, electrical power, telecommunications, natural gas, cable television, etc. V. LANDSCAPING Developer shall be responsible to fully landscape the Project in accordance with the Specific Plan and landscape plans approved by the City. Developer shall also be responsible for the maintenance obligations set forth in the Easement Agreement that pertain to Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, Landscape Parcel I, and the Parkway Areas. VI. PUBLIC IMPROVEMENTS Developer shall be responsible for the construction of Seeley Drive, the interim street through the Project, and all other public improvements that may be identified per the Specific Plan including, but not limited to, all required internal utilities. All such construction shall be done to City specification. Additionally, Developer shall be responsible for obtaining and delivering to the City such bonds or other improvement security as City may require in accordance with applicable law, including but not limited to payment and performance bonds. Upon Developer's completion of Seeley Drive, Developer shall dedicate the same to the City for use as a public street. VII. DEVELOPMENT STANDARDS All development on the Property shall conform to the development standards set forth in the Specific Plan, and other applicable City codes and development standards. 882/015610-0061 380889.08 al1/26/03 -3- ATTACHMENT NO.9 PROMISSORY NOTE [See Following Pages] 882/015610-0061 380889.08 al 1/26/03 NOTE , 2003 ("Note Date") $2,520,000 ("Loan Amount") FOR VALUE RECEIVED, the undersigned (herein, the "Maker") hereby promises to pay to the order of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Holder" or "Agency"), at a place designated by Holder, the principal sum of TWO MILLION FIVE HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000) ("Note Amount"), plus accrued interest, or such lesser amount which shall from time to time be owing hereunder pursuant to the terms hereof. The principal sum hereof shall be disbursed pursuant to the terms and conditions set forth herein and in that certain Disposition and Development Agreement by and among Maker and Holder, dated ("DDA"), pertaining to Maker's redevelopment of certain real property defined in the DDA as the "Property". Reference is also made to the following additional agreements and documents, of even date herewith, involving Maker and Holder and/or pertaining to the Property: (i) Deed of Trust with Assignment of Rents and Rider Attached Hereto by and between Maker as borrower, Holder as beneficiary, and First American Title Insurance Company as Trustee, and recorded in the Office of the Riverside County Recorder ("Agency Deed of Trust"). The Agency Deed of Trust partially secures repayment of this Note. (ii) Declaration of Covenants, Conditions, and Restrictions for Property, by and between Maker and Holder, for the benefit of Holder, and recorded in the Office of the Riverside County Recorder ("Declaration"). The DDA, Agency Deed of Trust, and Declaration are referred to herein collectively as the "Agency Agreements". The Agency Agreements are incorporated herein as though fully set forth. Except as otherwise provided herein, the defined terms used in this Note shall have the same meaning as set forth in the DDA. 1. Purpose of Loan. The loan evidenced by this Note is a loan for the purpose of assisting Maker with a portion of Maker's Property acquisition costs and for a portion of Maker's costs for constructing the Project on the Property -in accordance with the DDA. 2. Principal Amount. The principal amount of this loan shall be TWO MILLION FIVE HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000) ("Loan Amount"). Simple interest shall accrue on the outstanding principal amount at seven percent (7%) per annum, compounded annually. Interest shall accrue as set forth in Section 4 in the event of a Maker default. 3. Disbursement of Agency Loan. 3.1 The Agency Loan shall be disbursed in accordance with the Disbursement Schedule attached to the DDA as Attachment No. 5. 882/015610-0061 380889.08 al 1/26/03 —2— ;� J 4. Term of Note; Repayment. Repayment of the Loan Amount, as adjusted and redefined as the "Adjusted Loan Amount" pursuant to this Section 4, shall be through monthly installment repayment amounts. 4.1 Subject to the provisions of (a) Section 5 herein which provide for acceleration of the then outstanding principal and accrued interest and immediate payment thereof in the event of a default by Maker and (b) Sections 4.2 through 4.4 below, which provide for the cancellation of this Note in the event certain specified conditions are met: (A) Maker shall not be required to make any payments of principal or interest on this Note until the earlier of, (i) such time as Maker has sold all of the Affordable Homes or (ii) such time as Maker has sold all of the homes in the Parcel 7 Residential Development (the first to occur is hereinafter referred to as the "Final Sale Date"). Within thirty (30) days after the Final Sale Date (the "Maker Repayment Date"), any outstanding balance remaining on the Note shall be due and payable to Holder in accordance with paragraph (B) below. (B) Maker agrees that interest shall accrue on any amounts of the Agency Loan that have been disbursed, and not transferred to Eligible Buyers in the form of Developer Credits, prior to the Maker Repayment Date, and that as a result thereof, the outstanding principal and accrued interest to date due Holder on the Maker Repayment Date shall be adjusted to reflect said accrual ("Adjusted Loan Amount"). 4.2 Notwithstanding the foregoing, this Note shall be deemed paid in full when Maker has repaid the Holder an amount equal to the Adjusted Loan Amount, as set forth in this Note. 4.3 Notwithstanding anything to the contrary herein, (i) the Note Amount shall be automatically reduced by the amount of each Developer Credit provided by Developer to an Eligible Buyer, (ii) the Deed of Trust shall be reconveyed with respect to each Affordable Home that has been sold and conveyed to an Eligible Buyer, and (iii) at such time when Developer has provided Developer Credits in a cumulative amount that equals or exceeds the Note Amount, this Note shall be cancelled, as evidenced by Holder's return to Maker of the original of this Note marked "cancelled," and the Deed of Trust shall be immediately reconveyed, all as described more fully in Sections 4.2 and 4.3 of the DDA. 4.4 Maker shall have the right to prepay all or any portion of this Note at any time without penalty, and upon such repayment the Agency Deed of Trust shall be reconveyed. Prepayment shall not affect the Declaration or the term of the Declaration. 4.5 Any payments made by Maker in payment of this Note shall be applied in the following order: (i) first to the interest then accrued and due on the unpaid principal balance under this Note, (ii) second to reduction of the principal balance of this Note. 5. Default; Acceleration; Cross -Default. In the event: 5.1 Maker fails to timely make a payment required by this Note within ten (10) days following the due date of any payment due hereunder; or 882/015610-0061 380889.08 a11/26/03 -3- 5.1 Maker fails to timely make any other payment due hereunder within ten (10) days after notice thereof from Holder; or 5.2 Maker is in material default of any of the covenants, terms, or provisions of this Note, or any of the Agency Agreements, including, without limitation, Maker's sale of an Affordable Home to a buyer that does not qualify as an Eligible Buyer, and Maker fails to timely cure such default under the terms of the applicable agreement, it being understood and agreed by Maker that a default of this Note, or of any of the Agency Agreements (beyond any applicable cure period) shall be a default of all of the foregoing listed documents; then Maker shall be in default of this Note, and all portions of the Loan Amount that have been disbursed to Maker and all accrued interest thereon shall become immediately due and payable. The rate of interest applicable to periods of default for the defaults set forth in this Section 5 shall be calculated at the lesser of ten percent (10%) per annum or the maximum legal rate, and shall accrue as of the date such payment was originally due. 6. Collection Costs; Attorneys' Fees. If, because of any event of default under this Note or any of the Agency Agreements, any attorney is engaged by Holder to enforce or defend any provision of this instrument, whether or not suit is filed hereon, then Maker shall pay upon demand reasonable attorneys' fees, expert witness fees and all costs so incurred by Holder together with interest thereon until paid at the applicable rate of interest payable hereunder, as if such fees and costs had been added to the principal owing hereunder. 7. Waivers by Maker. Maker and all endorsers, guarantors and persons liable or to become liable on this Note waive presentment, protest and demand, notice of protest, demand and dishonor and nonpayment of this Note and any and all other notices or matters of a like nature, and consent to any and all renewals and extensions near the time of payment hereof and agree further that at any time and from time to time without notice, the terms of payment herein may be modified or the security described in any documents securing this Note released in whole or in part, or increased, changed or exchanged by agreement between Holder and any owner of the premises affected by said documents securing this Note, without in any way affecting the liability of any party to this Note or any persons liable or to become liable with respect to any indebtedness evidenced hereby. 8. Severability. The unenforceability or invalidity of any provision or provisions of this Note. as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. 9. Modifications. Neither this Note nor any term hereof may be waived, amended, discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof be effective except by an instrument in writing signed by Maker and Holder. No delay or omission on the part of Holder in exercising any right hereunder shall operate as a waiver of such right or of any other right under this Note. 10. No Waiver by Holder. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure of the Holder of this Note to take, or any 882/015610-0061 _4_ J 380889.08 al1/26/03 delay be implied from any failure by the Holder in taking action with respect to such breach, default or failure from any prior waiver of any similar or unrelated breach, default or failure. 11. UsM. Notwithstanding any provision in this Note, the total liability for payment in the nature of interest shall not exceed the limit imposed by applicable laws of the State of California. 12. Nonassignability. Maker may only Transfer (as that term is defined in the DDA) this Note in accordance with provisions and restrictions pertaining to a transfer of the DDA as set forth in the DDA. Holder may freely Transfer Holder's interest in this Note in any manner, at Holder's sole discretion; provided, that at the time of such Transfer Holder also transfers the DDA to such transferee. 13. Governing Law. This Note has been executed and delivered by Maker in the State of California and is to be governed and construed in accordance with the laws thereof. 14. Time of Essence. Time is of the essence in the performance of the obligations and provisions set forth in this Note. IN WITNESS WHEREOF, Maker has executed this Note as of the Note Date. "MAKER" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President 882/015610-0061 380889.08 a11/26/03 -5- V� ATTACHMENT 10 DEED OF TRUST [See Following Pages] Recording Requested By And When Recorded Return to: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director SPACE ABOVE THIS LINE FOR RECORDER'S USE EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383 DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO NOTE: RIDER ATTACHED TO THIS DEED OF TRUST CONTAINING TERMS INCLUDING SECURITY AGREEMENT AND FIXTURE FILING. This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO ("Deed of Trust"), is made , between CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company, herein called TRUSTOR, whose address is , First American Title Insurance Company, a California corporation, herein called TRUSTEE, and LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, herein called BENEFICIARY. WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, Trustor's estate, dated on or about the date hereof, in that property in the City of La Quinta, County of Riverside, State of California, described in Exhibit "A" (the "Property"), together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of TWO MILLION FIVE HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000), with interest thereon according to the terms of a promissory note or notes of even date herewith made by Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each agreement of Trustor incorporated by reference or contained herein; and (3) payment of additional sums and interest thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that they are secured by this Deed of Trust. To protect the security of this Deed of Trust, and with respect to the Property above described, Trustor expressly makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of the county recorder of the county where said property is located, noted below opposite the name of such county, namely: COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda 1288 556 Kings 858 713 Placer 1028 379 Sierra 38 187 Alpine 3 130-31 Lake 437 110 Plumas 166 1307 Siskiyou 506 762 Amador 133 438 Lassen 192 367 Riverside 3778 347 Solano 1287 621 Butte 1330 513 Los Angeles T-3878 874 Sacramento 5039 124 Sonoma 2067 427 Calaveras 185 338 Madera 911 136 San Benito 300 405 Stanislaus 1970 56 Colusa 323 391 Marin 1849 122 San Bernardino 6213 768 Sutter 655 585 Contra Costa 4684 1 Mariposa 90 453 San Francisco A-804 596 Tehama 457 183 Del Norte 101 549 Mendocino 667 99 San Joaquin 2855 283 Trinity 108 595 El Dorado 704 635 Merced 1660 753 San Luis Obispo 1311 137 Tulare 2530 108 Fresno 5052 623 Modoc 191 93 San Mateo 4778 175 Tuolumne 177 160 Glenn 469 76 Mono 69 302 Santa Barbara 2065 881 Ventura 2607 237 Humboldt 801 83 Monterey 357 239 Santa Clara 6626 664 Yolo 769 16 Imperial 1189 701 Napa 704 742 Santa Cruz 1638 607 Yuba 398 693 Inyo 165 672 Nevada 363 94 Shasta 800 633 Kern 3756 690 Orange 7182 18 San Diego SERIES 5 Book 1964, Page 149774 882/015610-0061 7 J .� ►y 380889.08 al1/26/03 v shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge therefor does not exceed the maximum allowed by law. Notwithstanding anything herein to the contrary, this Deed of Trust shall be reconveyed with respect to each lot comprising the Property that has been developed with a single family home and sold by Trustor to an individual purchaser. Beneficiary agrees to execute the document(s) necessary to effect any such partial reconveyance. The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him at his address hereinbefore set forth. SEE RIDER ATTACHED TO THIS DEED OF TRUST STATE OF CALIFORNIA COUNTY OF Signature of Trustor } CP DEVELOPMENT LA QUINTA, LLC } a California limited liability company On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(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 signatures(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (This area for official notarial seal) By: Oliphant Family Trust Its: Member Its: Richard R. Oliphant Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Its: Richard R. Oliphant President 882/015610-0061 g �� v 380899.08 al1/26/03 DO NOT RECORD The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein. A. To protect the security of this Deed ofTrust, Trustor agrees: 1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general. 2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. 3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. 4) To pay: at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water stock; when dui all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust. Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is such manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees. 5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from the date of expenditure at the amount allowed by law in effect at the date hereof, and b pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded. B. It is mutually agreed: 1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance. 2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay. 3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof, join in granting any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof. 4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto". 5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any such default (beyond any applicable cure period, and during the continuance of such default), Beneficiary may at any time without notice, either in person, by agent, or be a receiver to be appointed by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own J name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may determine. The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as aforesaid, shall not cure or waive any default ornotice of default hereunder or invalidate any act done pursuant to such notice. 6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby. After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof, all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto. 7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the courty or counties where said property is situated shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee. 8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee. DO NOT RECORD REQUEST FOR FULL RECONVEYANCE TO , TRUSTEE: The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same. Dated Please mail Deed of Trust, Note and Reconveyance to Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before reconveyance will be made. 882/015610-0061 380889.08 al 1 /26/03 2 �# LEGAL DESCRIPTION OF PROPERTY [The legal description of the Property will be inserted prior to recordation of this Deed of Trust. The term "Property" refers to that certain parcel of real property identified as "Residential Parcel 7" in that certain Disposition and Development Agreement executed by and between Trustor and Beneficiary on or about 541 RIDER TO SUBORDINATED DEED OF TRUST WITH ASSIGNMENT OF RENTS THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS (.'Rider") is executed this day of , , by CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company, herein "Trustor," in favor of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, herein "Beneficiary," the same parties to that certain form Deed of Trust With Assignment of Rents, of even date hereto, to which this Rider is attached. This Rider is made a part of and is incorporated into said Deed of Trust. This Rider shall supersede any conflicting term or provision of the form Deed of Trust to which it is attached. Reference is made to (i) that certain Note by and between Trustor and Beneficiary, dated on or about the date set forth above, the repayment of which by Trustor is secured by this Deed of Trust ("Agency Note"), and (ii) to the Agency Agreements which are described in the Agency Note. The parties hereto agree: 1. Propegy. The estate subject to this Deed of Trust is Trustor's fee estate in the real property legally described in the foregoing Deed of Trust to which this Rider is attached (the "Property"). 2. Obligations Secured. Trustor makes this grant and assignment for the purpose of securing the following obligations ("Secured Obligations"): a. Payment to Beneficiary of all indebtedness at any time owing under the terms of the Note; b. Payment and performance of all obligations of Trustor under this Deed of Trust; C. Payment and performance of all obligations of Trustor under the Agency Agreements. d. Payment and performance of all future advances and other obligations of Trustor or any other person, firm, or entity with the approval of Trustor, may agree to pay and/or perform (whether as principal, surety or guarantor) for the benefit of Beneficiary, when the obligation is evidenced by a writing which recites that it is secured by this Deed of Trust; and e. All modifications, extensions and renewals of any of the obligations secured hereby, however evidenced. 3. Obli atg ions. The term "obligations" is used herein in its broadest and most comprehensive sense and shall be deemed to include, without limitation, all interest and charges, prepayment charges, late charges and fees at any time accruing or assessed on any of the Secured Obligations. 4. Subordination. Beneficiary agrees to subordinate this Deed of Trust to Trustor's construction loan and subsequent permanent and/or construction loans, provided that (i) the maximum cumulative principal amount of the construction and/or permanent loan shall not exceed ninety percent (90%) of the lender's appraised value of the Property upon completion of the affordable housing project ("Project") described in the Agency Agreements, which amount shall be verified in writing to Beneficiary's Executive Director's reasonable satisfaction; (ii) the loan(s) shall obligate Trustor to expend loan proceeds for no other purpose than the Project or refinance of a loan secured by the Project that was previously subordinated to by the Beneficiary; and (iii) the loan(s) shall be entered into in connection with execution by Agency of a subordination agreement that has been approved by Beneficiary's legal counsel (which form Beneficiary agrees to promptly execute and deliver upon Trustor's request therefor) ("Subordination Agreement"). Beneficiary agrees that the lender may, during the period of default, proceed with its rights and remedies against Trustor as a result of such default, subject only to the cure rights provided in the Subordination Agreement. In agreeing to provide the subordination referred to in the preceding sentence, Beneficiary hereby incorporates the finding required to be made in accordance with Health and Safety Code Section 33334.14. 5. Incorporation. All terms of the Agency Note, Agency Agreements, and the Secured Obligations are incorporated herein by this reference. All persons who may have or acquire an interest in the Property shall be deemed to have notice of the terms of all of the foregoing documents. 6. Mortgagee -in -Possession. Neither the assignment of rents set forth in the Deed of Trust nor the exercise by Beneficiary of any of its rights or remedies hereunder shall be deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect to the Property, unless Beneficiary, in person or by agent, assumes actual possession thereof. Nor shall appointment of a receiver for the Property by any court at the request of Beneficiary or by agreement with Trustor, or the entering into possession of the Property by such receiver, be deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect to the Property. 7. No Cure. In the event Beneficiary collects and receives any rents under the Deed of Trust upon any default hereof, such collection or receipt shall in no way constitute a curing of the default, except if and to the extent the same are sufficient to cure all monetary defaults and no other defaults then exist. 8. Possession Upon Default. Upon the occurrence of and during the continuation of a default, Beneficiary, after having given notice and the applicable cure periods having expired with the default having not been cured (hereinafter, a "default"), may, at its option, without any action on its part being required and without in any way waiving such default, take possession of the Property in accordance with applicable law and have, hold, manage, lease and operate the same, on such terms and for such period of time as Beneficiary may deem proper, and may collect and receive all rents and profits, with full power to make, from time to time, all commercially reasonable alterations, renovations, repairs or replacements thereto as may seem proper to Beneficiary, and to apply such rents and profits to the payment of (a) the cost of all 882/015610-0061 2 380889.08 a11/26/03 J4 3 such alterations, renovations, repairs and replacements, and all costs and expenses incident to taking and retaining possession of the Property, and the management and operation thereof, and keeping the same properly insured; (b) all taxes, charges, claims, assessments, and any other liens which may be prior in lien or payment of the Note, and premiums for insurance, with interest on all such items; and (c) the indebtedness secured hereby, together with all costs and attorney's fees, in such order or priority as to any of such items as Beneficiary in its sole discretion may determine, any statute, law, custom or use to the contrary notwithstanding. Any amounts received by Beneficiary or its agents in the performance of any acts prohibited by the terms of this assignment, including, but not limited to, any amounts received in connection with any cancellation, modification or amendment of any lease prohibited by the terms of this assignment and any rents and profits received by Trustor after the occurrence of a default shall be held by Trustor as trustee for Beneficiary and all such amounts shall be accounted for to Beneficiary and shall not be commingled with other funds of the Trustor. Any person receiving any portion of such trust funds shall receive the same in trust for Beneficiary as if such person had actual or constructive notice that such funds were impressed with a trust in accordance therewith. 9. Receiver. In addition to any and all other remedies of Beneficiary set forth under this Deed of Trust or permitted at law or in equity, if a default shall have occurred and not have been cured within any applicable cure period, Beneficiary, to the extent permitted by law and without regard to the value, adequacy or occupancy of the security for the Note and other sums secured hereby, shall be entitled as a matter of right if it so elects to the appointment of a receiver to enter upon and take possession of the Property and to collect all rents and profits and apply the same as the court may direct, and such receiver may be appointed by any court of competent jurisdiction by ex parte application and without notice, notice of hearing being hereby expressly waived. The expenses, including receiver's fees, attorneys' fees, costs and agent's compensation, incurred pursuant to the power herein contained shall be secured by this Deed of Trust. 10. Notice to Beneficiary. Notices to Beneficiary shall be sent to Beneficiary addressed to: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92263 Attn: Executive Director [SIGNATURE ON NEXT PAGE] 882/015610-0061 380889.08 al1/26/03 3 J 4 IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's acknowledgment herein below, to be effective for all purposes as of the day and year first set forth above. TRUSTOR: CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President 882/015610-0061 i' ' P- 380889.08 al1/26/03 4 J # t STATE OF CALIFORNIA ss. COUNTY OF On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 380889.08 al1/26/03 ATTACHMENT NO. 11 EARLY ENTRY AGREEMENT [See Following Pages] 882/015610-0061 380889.08 a11/26/03 �-; A :' EARLY ENTRY AGREEMENT This Early Entry Agreement ("Agreement") is entered into as of , 2003, by and among the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and CP DEVELOPMENT LA QUINTA, LLC., a California limited liability company ("Developer"), with reference to the following facts: RECITALS A. Agency is the present owner of that certain property located in La Quinta, California, described on Exhibit "A" hereto (herein "Property"). B. Agency has executed that certain Disposition and Development Agreement with Developer ("DDA"), pursuant to which Agency shall sell to Developer the Property for Developer's development thereon of a commercial project consisting of mid -price suites hotel, two restaurants, a sanctuary villas development, a condominium/casitas development, a medical facility, and two single-family residential developments (collectively, the "Project"). C. Developer has requested the right to enter onto and about the Property to perform certain work specified herein, and Agency is willing to allow such entry on the terms and conditions hereinafter specified. NOW, THEREFORE, in consideration of the covenants and agreements contained herein and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged by the parties hereto, the parties covenant and agree as follows: 1. Grant of License. Agency hereby grants to Developer and its employees, agents, consultants, and contractors ("Related Parties") a license for the term set forth in Paragraph 3 ("License") to enter upon the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, for the purposes of (i) grading on all or any portion of the Property, (ii) installing wet and dry utilities on all or any portion of the Property, (iii) installing signs on the Property, provided such installation is in accordance with Section 9.160.070 of the City of La Quinta Municipal Code (Permitted Semipermanent Signs), and (iv) paving Seeley Drive, an interior street to be developed by Developer and subsequently conveyed to the City of La Quinta ("City") for City's use thereafter as a public street (collectively, the "Permitted Work") in connection with the proposed development of the Project. Notwithstanding the above, at least forty-eight (48) hours prior to any of the Related Parties' first entry onto the Property to commence the Permitted Work, Developer shall notify Agency of its intention of the same, and shall thereafter provide such notice before again entering the Property if there is an interruption of such initial entry for a period of even (7) consecutive days (excluding interruptions for events of force majeure). Said notice shall be provided by facsimile, addressed to the person listed in Section 8.8 hereof at the number provided therein. Agency may reject any proposed entry by providing telephonic notification to Developer to the person listed in Section 8.8 hereof, at the number provided therein, at any time prior to the time of the proposed entry. Agency has full right, title and authority to grant Developer the License for the Permitted Work, and no third party permission or consent is needed in connection therewith. Such License 882/015610-0061 380889.08 a11/26/03 -2- ` shall be non -revocable for the Term defined in Paragraph 3 below, except as otherwise set forth herein. Agency specifically agrees that Developer shall have access to and be entitled to perform the Permitted Work on all portions of the Property, provided, however, that neither Developer nor any of the Related Parties shall interfere with any other real or personal property, or enter upon any other real property, without first obtaining the written consent of the owner(s) of such other real or personal property. 2. Agency's Authority to Revoke. Agency may revoke this License upon two (2) days written notice to Developer delivered in accordance with Subparagraph 8.8 below in the event: (i) in the reasonable judgment of Agency, such revocation is necessary to protect the public health, safety, or welfare pursuant to the exercise of Agency's police powers; or (ii) Developer is in violation of the terms of this Agreement or any applicable law, statute, ordinance, rule, or regulation pertaining to the Permitted Work or Developer's or the Related Parties' entry upon the Property pursuant to this Agreement, and Developer has failed to cure such violation within two (2) days following Developer's receipt of notice of such violation from Agency. 3. Term. Unless earlier revoked or terminated pursuant to the provisions of this Agreement, the term of the License shall commence on full execution hereof and shall terminate on the earlier of (i) as to each portion of the Property, the date Developer acquires such portion from Agency, or (ii) one hundred eighty-five (185) days from the date hereof. 4. Repair and Restoration of Property. Developer shall repair any damage it causes to the Property in the course of performing the Permitted Work pursuant hereto and shall, except for the actual Permitted Work allowed hereby, restore the Property to the condition existing prior to Developer's or Related Parties' entry onto the Property, unless this requirement is waived by the Agency Executive Director or the Community Development Director in his or her sole and absolute discretion. 5. Compliance with Laws. Developer shall obtain, at is sole cost and expense, all governmental permits and authorizations required by any governmental agencies for the Permitted Work. Developer shall comply with, and shall cause all of its Related Parties to comply with, all applicable governmental laws, rules, regulations and requirements governing the Permitted Work. Prior to Developer's or any of the Related Parties' entry onto the Property to perform any of the Permitted Work, Developer shall have prepared, obtained approval from the City thereof, and implemented, a dust control program. 6. Indemnity. Developer shall protect, defend, indemnify and hold harmless Agency and City and their respective officers, officials, members, employees, agents, and representatives (any of the foregoing shall be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and expert witness fees (hereinafter "Claims"), brought in connection with any death or personal injury to any person or persons or damage or destruction of any property arising out of or in any manner directly or indirectly connected with the entry upon the Property by Developer or any of its Related Parties or the activities on the Property (including but not limited to the Permitted Work) by Developer or any 982/015610-0061 380989.08 a11/26/03 of its Related Parties, but excluding from the foregoing any Claims resulting from environmental contamination of the Property or other defects on the Property existing prior to Developer's entry thereon and not otherwise caused by Developer or any of the Related Parties. The foregoing indemnification shall also cover: (a) any mechanics' or materialmen's liens, claims, demands, actions or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for Developer, or (ii) any activities of any of its Related Parties on or relating to the Property (including, without limitation, any claims by any of such Related Parties); and (b) any costs of removing Developer or its Related Parties from the Property after the expiration of the term hereof unless Developer is otherwise entitled to be on the Property at such time under this Agreement. 7. Insurance. (a) Before entering the Property for any purpose, Developer shall cause the insurance required under this paragraph to be issued and thereafter to be maintained until one (1) year following the end of the Term. Developer shall procure and maintain: (1) A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than: (i) for death and bodily injury, either (A) a combined single limit of Three Million Dollars ($3,000,000) or (B) Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000) in the aggregate, and (ii) for property damage, Three Million Dollars ($3,000,000) per occurrence. (2) A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Developer and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Developer in the course of carrying out the work or services contemplated in this Agreement. (3) A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and property damage liability limits of Three Million Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit liability of Three Million Dollars ($3,000,000). Said policy shall include coverage for owned, non -owned, leased, and hired cars. (b) The following additional requirements shall apply to all of the above policies of insurance: (1) All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, the Agency, and their 882/015610-0061 _4_ 380889.08 al1/26/03 respective officers, officials, members, employees, agents, and representatives as additional insureds. (2) The insurer shall waive all rights of subrogation and contribution it may have against City, Agency, and their respective officers, officials, members, employees, agents, and representatives, and their respective insurers. (3) All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. (4) The policies of insurance required by this Agreement shall not require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless approved in writing by the City Manager in his or her sole and absolute discretion. (c) In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. (d) Not later than the date of this Agreement, Developer shall provide the Agency Executive Director with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the Executive Director. (e) Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 6 or the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 8. Miscellaneous. 8.1 Authority. Each signatory hereto warrants to the other party that it has authority to sign on behalf of the party for whom it purports to sign. 8.2 Attorney's Fees. In the event any party hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees. 8.3 Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. 8.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 882/015610-0061 380889.08 a11/26/03 5 8.5 Litigation Matters. The Municipal and Superior Courts of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. 8.6 Non -liability of Agency Officers and Employees. No officer, official, member, employee, agent, or representative of Agency shall be personally liable to Developer, or any successor or assign of same; in the event of any default or breach by Agency, or for any amount which may become due to Developer, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement. 8.7 Covenant Against Discrimination. Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. 8.8 Notices. Unless other sections of this Agreement allow certain specific notices to be given by other means, all notices required to be delivered under this Agreement or under applicable law shall be delivered by one of the following means: (a) personal delivery; (b) delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by reputable document delivery service that provides a receipt showing date and time of delivery; or (d) delivery by facsimile provided the sender receives confirmation the facsimile was received. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second business day following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that any faxed notices which are transmitted at any time other than 8:00 a.m. to 4:30 p.m. Monday through Friday (excluding legal holidays) shall be deemed transmitted as of the next business day. Notices shall be delivered to the following addresses: To Agency: La Quinta Redevelopment Agency Attn: Executive Director 78-495 Calle Tampico La Quinta, CA 92253 Telephone: (760) 777-7000 Facsimile: (760) 777-7101 With a copy to: Rutan & Tucker, LLP Attn: M. Katherine Jenson, Esq. 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626-1998 Telephone: (714) 641-5100 Facsimile: (714) 546-9035 882/015610-0061 380889.08 al1/26/03 -6- R• JV�.r To Developer: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, CA 92211 Attn: Richard Oliphant Telephone: (760) 776-9900 Facsimile: (760) 776-9971 With copies to: Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Telephone: (760) 360-7886 Facsimile: (760) 345-7175 and Selzer, Ealy, Hemphill & Blasdel, LLP 777 E. Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill, Esq. Telephone: (760) 320-5977 Facsimile: (760) 320-9507 Changes in the address to be used for receipt of notices shall be effected in accordance with this Paragraph 8.8. 8.9 Time of Essence. Time is of the essence in the performance of the Agreement. 882/015610-0061 . 380889.08 al1/26/03 -7- IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above -written. "DEVELOPER" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager Io Its: "AGENCY" Richard R. Oliphant President LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic 0 Name: Its: Acting Executive Director 882/015610-0061 380889.08 al1/26/03 g EXHIBIT "A" TO EARLY ENTRY AGREEMENT LEGAL DESCRIPTION OF PROPERTY IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027138" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 960.27 FEET; THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE; THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °42'33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044132" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41 ", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 10897% O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; 882/015610-0061 380889.08 al1/26/03 -9- J ♦J THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'461, AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL licit, A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL licit, A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL licit AND ITS NORTHWESTERLY PROLONGATION NORTH 64021103" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 21. A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011'26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11 005'41 ", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033102" EAST, A DISTANCE OF 4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033123" EAST; THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 00032'28"7 AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75053'46" EAST; 882/015610-0061 -10- V 380889.08 a11/26/03 THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 07041'06"51 AN ARC DISTANCE OF 280.60 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 67006156" WEST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 68013' 18" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 66001' 12" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028137" WEST, A DISTANCE OF 153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36057'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 42.47 ACRES (I,850,000 SQUARE FEET), MORE OR LESS. 882/015610-0061 J 380889.08 a11/26/03 -11- ■ P.O.C. CTR. 1 /4 COR. SEC. 19 MILES AVENUE S ° 75 00 " E _ L6 _ - - N 89'31'23" E 487.01' N 89'33 22 E 960.27 L7 N 00'28'37" W S 00'26'40" E 153.41 ' in 112.88' T.P.O.B. � y y S 44'44'32" E \\\ 90.06' c2 0� N 89*47'47" E N 66'01'12" E SITE 239.56' n cR AREA-42.47 AC. o L4 PORTION OF THE S. 1 /2 OF N SEC. 19, T.5S., R.7E., S.B.M. tR1 v P L3 1 "=300' ' N 86' 11'26" E , R LINE DATA NUMBER DIRECTION DISTANCE L1 S 00' 18'01 E -397.49' L2 N 48'09'56" W 22.00' L3 N 75*33'02" E 4.22' L4 N: 67'06'56" E 20.00' L5 S 67.06'56" w zo:Do' L6 N , 00'26'40" 'W 20.00' L7 N . 89'33'22" £ 80.00' 04 75'53'46" E o (R) N B c FC y EXCEPTION PARCEL NUMBER DELTA RADIUS ARC LENGTH TANGENT Cl 41'42'33" 440.00 320.30 167.62 C2 4527'41" 80.00 63.48 33.52 C3 0757'46" 4565.17 236.07 118.06 C4 l9'24'03" 2500.00 846.52 427.35 C5 11-05'41" 2072.00 401.22 201.24 C6 1 T56'08" 2092.00 729.11 368.29 C7 ... 02' 12'.44" 2072.00 80.00 40.01 C8 0T41'061 2092.00 280.60 140.51 C9 00'32'.28" 2500.00 123.61 111.81 C10 18#51'35" 2500.00 1822.91 415.21 N (R) 642� 03 M 444 9g L2 J.N. 1612 882/015610-0061 _ 12 _ J 380889.08 a11/26/03 ATTACHMENT NO. 12 EASEMENT AGREEMENT [See Following Pages] 882/015610-0061 .' r + 380889.08 al1/26/03 0 Recording Requested By And When Recorded Mail To: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Agency Secretary (SPACE ABOVE THIS LINE FOR RECORDER'S USE) (EXEMPT FROM RECORDATION FEE PER GOVERNMENT CODE § 27383) EASEMENT AGREEMENT THIS EASEMENT AGREEMENT ("Agreement") is made this day of , 2003 (the "Effective Date") by and among CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Grantee"), the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and CITY OF LA QUINTA, a California municipal corporation ("City"). RECITALS: A. Grantee has entered into a Disposition and Development Agreement ("DDA") dated , 2003 with the Agency, pursuant to which Agency conveyed to Grantee that certain real property located southeast of the Miles Avenue and Washington Street intersections in the City of La Quinta, County of Riverside, State of California (the "Grantee Property"). A legal description of the Grantee Property is attached hereto and incorporated herein as Exhibit "A". B. City owns certain public rights -of -way located in the City of La Quinta, County of Riverside, State of California, commonly known as Washington Street and Miles Avenue, portions of each of which are adjacent to certain portions of the Grantee Property (the "City - Owned Property"). The City -Owned Property is depicted on the site map, which is attached hereto and incorporated herein as Exhibit `B" (the "Site Map"). C. Agency owns certain real property identified on the Site Map as Lot C, Lot E, Lot H and Lot I (collectively, the Agency -Owned Property"). D. City has applied for various grants (the "Landscaping Grants") to partially fund the cost of certain landscaping improvements the City desires to make to the City -Owned Property and the Agency -Owned Property (the "City Landscaping Improvments"). E. City now desires to grant to Grantee an easement over the City -Owned Property, and Agency desires to grant to Grantee an easement over the Agency -Owned Property, for purposes of (i) Grantee installing, and thereafter maintaining, certain landscaping improvements, within the City -Owned Property and the Agency -Owned Property, if City does not receive the Landscaping Grants on or before March 1, 2004. Additionally, City, Agency, and Grantee desire 882/015610-0061 2 380889.08 al1/26/03 J 0 to set forth the terms and conditions for Grantee's maintenance of said landscaping improvements. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals, City, Agency, and Grantee agree as follows: l . Grant of Landscaping Installation Easements. (a) City, on behalf of itself and its heirs, successors, and assigns to all or any part of the City -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and assigns to Grantee's interest in the Grantee Property, and for the benefit of the City -Owned Property, a non-exclusive easement (the "City -Owned Property Landscaping Installation Easement") for ingress and egress into, upon, over, and across any and all portions of the City -Owned Property for purposes of installing within the City -Owned Property (i) landscaping, of a type and quality selected by City, in City's sole and absolute discretion, and (ii) any and all irrigation equipment necessary for appropriate maintenance of such landscaping (collectively, the "City -Owned Property Developer Landscaping Improvements"). (b) Agency, on behalf of itself and its heirs, successors, and assigns to all or any part of the Agency -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and assigns to Grantee's interest in the Grantee Property, and for the benefit of the Agency -Owned Property, a non-exclusive easement (the "Agency -Owned Property Landscaping Installation Easement") for ingress and egress into, upon, over, and across any and all portions of the Agency -Owned Property for purposes of installing within the Agency -Owned Property (i) landscaping, of a type and quality selected by City, in City's sole and absolute discretion, and (ii) any and all irrigation equipment necessary for appropriate maintenance of such landscaping (collectively, the "Agency -Owned Property Developer Landscaping Improvements"). (c) City agrees that Grantee is permitted to enter the City -Owned Property to install the City -Owned Property Developer Landscaping Improvements, and Agency agrees that Grantee is permitted to enter the Agency -Owned Property to install the Agency -Owned Property Developer Landscaping Improvements, between the hours of 7 a.m. to 7 p.m., Monday through Saturday; provided, however, that not less than twenty-four (24) hours prior to Grantee's initial entry onto the City -Owned Property or the Agency -Owned Property, Grantee or its agents shall notify City or Agency, respectively, of its intent to do the same. (d) The easements granted pursuant to this Section 1 hereby are intended to be appurtenant easements for the benefit of City and Agency, and their respective successors, and assigns, subject to the provisions set forth herein. (e) City and Agency warrant to Grantee that they have the requisite power and authority to grant the easements described in this Section 1. (f) Upon Grantee's completion of installation of the City -Owned Property Developer Landscaping Improvements and the Agency -Owned Property Developer Landscaping Improvements, as determined by City, the easements described in this Section I shall 882/015610-0061 380889.08 a11/26/03 3 561 automatically terminate and be of no further force and effect. Said termination shall not affect any of the other provisions in this Agreement, all of which shall survive such termination. (g) In the event City obtains the landscaping Grants on or before March 1, 2004, the easements described in this Section 1 shall automatically terminate and be of no further force and effect. Said termination shall not affect any of the other provisions in this Agreement, all of which shall survive said termination. 2. Grant of Landscayinp, Maintenance Easements. (a) City, on behalf of itself and its heirs, successors, and assigns to all or any part of the City -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and assigns to Grantee's interest in the Grantee Property, and for the benefit of the City -Owned Property, a non-exclusive easement (the "City -Owned Property Maintenance Easement") for ingress and egress into, upon, over, and across any and all portions of the City -Owned Property for purposes of maintaining the City -Owned Property Developer Landscaping Improvements or, if the City obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping Improvements installed within the City -Owned Property. (b) Agency, on behalf of itself and its heirs, successors, and assigns to all or any part of the Agency -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and for the benefit of the Agency -Owned Property, a non-exclusive easement (the "Agency -Owned Property Maintenance Easement") for ingress and egress into, upon, over, and across any and all portions of the Agency -Owned Property for purposes of maintaining the Agency -Owned Property Developer Landscaping Improvements or, if the City obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping Improvements installed within the Agency -Owned Property. (c) City agrees that Grantee is permitted to enter the City -Owned Property to maintain the City -Owned Property Developer Landscaping Improvements or, if the City obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping Improvements installed within the Agency -Owned Property, between the hours of 7 a.m. to 7 p.m., Monday through Saturday. (d) Agency agrees that Grantee is permitted to enter the Agency -Owned Property to maintain the Agency -Owned Property Developer Landscaping Improvements or, if the City obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping Improvements installed within the City -Owned Property, between the hours of 7 a.m. to 7 p.m., Monday through Saturday. (e) The easements granted pursuant to this Section 2 are intended to be an appurtenant easement for the benefit of City and Agency, and their respective successors, and assigns, subject to the provisions set forth herein. (f) City and Agency warrant to Grantee that they have the requisite power and authority to grant the easements described in this Section 2. 882/015610-0061 380889.08 al1/26/03 4 56. 4W 3. Grantee's Maintenance Obligations. Grantee agrees, at Grantee's sole cost and expense, to maintain the City -Owned Property Landscaping Improvements and the Agency -Owned Property Landscaping Improvements in a good condition and repair and in compliance with all of City's requirements (collectively "Grantee's Maintenance Obligations"). Grantee's Maintenance Obligations shall commence on the date City notifies Grantee that City has completed installation of the City -Owned Property Landscaping Improvements as to any portion of the City -Owned Property Landscaping Improvements and the Agency -Owned Property Landscaping Improvements ("Notice of Completion"). Notwithstanding the above, if City does not obtain the Landscaping Grants on or before March 1, 2004, and Grantee is obligated pursuant to the DDA to install landscaping within the City -Owned Property and the Agency -Owned Property, Grantee's Maintenance Obligations as to any portion of the City -Owned Property Landscaping Improvements and the Agency -Owned Property Landscaping Improvements shall commence on the date Grantee completes installation of such portion of the landscaping improvements. Grantor's Maintenance Obligations shall survive termination of the easements granted pursuant to Section 1 and continue throughout the life of the Redevelopment Plan for the La Quinta Redevelopment Project No. 2. 4. City's Use of City -Owned Propg ; Agent Use of Agency -Owned Property. Nothing herein is intended to limit City's use of the City -Owned Property or Agency's use of the Agency -Owned Property; provided, however, that neither City nor Agency shall make any improvements to the City -Owned Property or the Agency -Owned Property, or take any actions, that would affect Grantee's unimpeded use of the easements granted pursuant to Sections 1 and 2 hereof or damage the City -Owned Property Landscaping Improvements or the Agency -Owned Property Landscaping Improvements, or, if the City obtains the Landscaping Grants on or before March 1, 2004, the City Landscaping Improvements. 5. Indemnification. Grantee shall indemnify, defend, and hold harmless City and Agency from and against any and all claims, obligations, demands, causes of action, damages, losses, liabilities, or expenses incurred in connection with or arising out of the use of the Easement as provided herein by Grantee and/or invitees, contractors, or agents of Grantee performing work on behalf of Grantee. 6. Covenants Run with the Land; Appurtenant Easements. All of the covenants, easements, agreements, conditions and restrictions contained herein, whether affirmative or negative: (a) are made for the direct benefit of the City -Owned Property and the Agency -Owned Property; (b) are covenants running with the land; (c) are appurtenant to and shall not be conveyed or otherwise transferred separately from the City -Owned Property, the Agency -Owned Property, or the Grantee Property; and (d) bind and inure to the burden or benefit, as the case may be, of the respective heirs, personal representatives, successors and assigns of the parties hereto, including, without limitation, successive owners of all or any 882/015610-0061 380889.08 a11/26/03 -5- portion of, respectively, the City -Owned Property, the Agency -Owned Property, and the Grantee Property. 7. General Provisions. (a) Apulicable Law The Municipal and Superior Courts of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. In addition to any other rights or remedies, any party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. The rights and remedies of the parties are cumulative and the exercise by any 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 right or remedies for the same default or any other default by the other party(ies). Service of process shall be made in any manner permitted by law and shall be effective whether served within or outside of California. (b) Attorney's Fees If any party to this Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. (c) Notices Unless otherwise provided herein, all notices required to be delivered under this Agreement or under applicable law shall be (i) personally delivered, or (ii) delivered by United States mail, postage prepaid, certified, return receipt requested, or (iii) delivered by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at noon on the second business day following deposit with the United States Postal Service. A party hereto may at any time, by giving ten (10) days' written notice to the other parties hereto, designate any other address in substitution of the address to which such notice or communication shall be given. Such notices or communications shall be delivered to the following addresses: To Grantor: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, CA 92211 Attn: Richard Oliphant 882/015610-0061 380889.08 a11/26/03 -6- With copies to: Selzer, Ealy, Hemphill & Blasdel, LLP 777 Tahquitz Canyon Way, Suite 528 Palm Springs, CA 92262 Attn: Emily Perri Hemphill, Esq. Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong To City/Agency: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attention: City Manager With a copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Attn: M. Katherine Jenson, Esq. (d) Interpretation; Severability The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against any party hereto by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provision of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force. (e) Integration; Amendment It is understood that there are no oral agreements between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties with respect to the subject matter hereof, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing which is recorded in the official records of Riverside County. 8. Inaction Not a Waiver of Default. Any failures or delays by any 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 any 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. 882/015610-0061 380889.08 a11/26/03 7 J6J 9. Non -Liability of Officials and Employees of City or Agency. No member, official or employee of City or Agency shall be personally liable to the Grantee, or any successor in interest, in the event of any default or breach by the City or Agency or for any amount which may become due to the Grantee or its successors, or on any obligations under the terms of this Agreement. (a) Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Grantee and its permitted successors and assigns. Whenever the term "Grantee" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 10. Relationship Between Grantee, City and Agency. It is hereby acknowledged that the relationship between the Grantee and City is not that of a partnership or joint venture and that the Grantee and the City shall not be deemed or construed for any purpose to be the agent of the other. It is hereby acknowledged that the relationship between the Grantee and Agency is not that of a partnership or joint venture and that the Grantee and the Agency shall not be deemed or construed for any purpose to be the agent of the other. 11. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. 12. No Waiver. A waiver by any party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by any other party shall not be construed as a waiver of any succeeding breach of the same or other 'covenants, agreements, restrictions or conditions of this Agreement. 13. Conflicts of Interest. No member, official, representative, or employee of City or Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, representative, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he or she is directly or indirectly interested. 882/015610-0061 380889.08 a11/26/03 g J ' 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first above written. ATTEST: City Clerk "Grantor" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member [a Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President CITY OF LA QUINTA, a California municipal corporation By: Its: "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: [SIGNATURES CONTINUED ON NEXT PAGE] 882/015610-0061 380889.08 al1/26/03 :J 6 ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP By: M. Katherine Jenson Attorneys for City of La Quinta [END OF SIGNATURES] 882/015610-0061 _ 1 O_ 380889.08 al1/26/03 tJVV STATE OF CALIFORNIA ) ss. COUNTY OF On before me, a notary public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. M [SEAL] STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On before me, a notary public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. 0 [SEAL] 882/015610-0061 380889.08 a11/26/03 EXHIBIT "A" LEGAL DESCRIPTION OF GRANTOR PROPERTY The following described property in the City of La Quinta, County of Riverside, State of California: IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027138" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 960.27 FEET; THENCE NORTH 00026140" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE; THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41042'33% AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41 ", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 108979, O.R. 882/015610-0061 380889.08 al1/26/03 570 THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL licit, A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 4205927" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 0205746113, AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL licit, A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL licit AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 23, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 860I 1'26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11 005'41 ", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF 4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033123" EAST; THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 00032'28% AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER 882/015610-0061 380889.08 al 1/26/03 -2- REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75053'46" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 68013' 18" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 66001' 12" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF 153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23 EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 3605727" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051 #35", AN ARC DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS. 882/015610-0061 380889.08 a11/26/03 —3- 5702) v :XAt� "I 1 sluao}Ils� . `ie;ulnp 8"i .. mus a>rw/ l 111Cl�rNaa d ros suae xrr Nruwro 7 us 01-I 1LI�VNdO-Ia/�Q 1NIOd > a-LNaO mrn Mg 'MUVlOOssr ON HJM 'OffaLW 'A • n i' w g w0 '... oN0 co 0 0 ad N F" cc 0 Z W. O Z �w Val 01—: W CL m 0) Q W J W W ._ Vwo Z O Z O Z Z ~O A v O Z Q Z W ' W , s c Y F- < < J:! S Z W 2 W J (1) J a < S W 0. 0 c7 n v W < < a < < Z 2 Z O c Z Y W W Y Y J j J a a m m m m m Z o W °' �- a J J < < I<- U C1 (� J g lA co N U al 3 N N J J D < < i O U. O � I-.< O ? cc U U U Z Z Z J J J m 1 1 I I 1 Q Z < cc 0 m o cc w CO)< < U U U J O I I 1 I 1 1 I 1 I Q CO) W 0 W co W � W (0) w ccN < w w = W = W W FW- Q I 1 I I 1 r I 1 1 J CC Cc m m Q m !W i cW ! Q. = Z 1 1 1 1 1 I 1 1 1 r a. C.)ui ) v co N- co w r M . Q V W V 4 o O o O o O o 0 0 0 o o O O J J J J J J J J J J J J J J J C) J J J J J J J J J A I.I. ix 0 a ce a a aa o W Z a W O ui 4' z =. W c� Ci a EXHIBIT "B" SITE MAP [to be inserted] 882/015610-0061 380889.08 al1/26/03 ATTACHMENT NO.13 DEVELOPMENT AGREEMENT [See Following Pages] 882/015610-0061 576 380889.08 al1/26/03 ATTACHMENT NO. 14A FORM OF OPTION AGREEMENT [SEE FOLLOWING PAGES] J ►� ►�, 882/015610-0061 � 380889.08 a11/26/03 FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383) OPTION AGREEMENT NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS OPTION AGREEMENT ("Option Agreement") is made this day of , 2003 (the "Effective Date"), by CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS A. Developer has entered into a Disposition and Development Agreement ("DDA") dated , 2003 (the "DDA Date") with the La Quinta Redevelopment Agency ("Agency"), pursuant to which Agency conveyed to Developer that certain real property located southeast of the Miles Avenue and Washington Street intersection, in the City of La Quinta, County of Riverside, State of California (the "Site"). All defined terms used herein shall have the same meaning as set forth in the DDA unless otherwise stated. The Site is legally described in Exhibit "A" attached hereto and incorporated herein. B. As a condition to the Agency's conveyance of the Site to Developer, Developer was required to grant to Agency an option to repurchase the Site, or a portion thereof, from Developer, if (i) Developer fails to commence, continuously proceed with, or complete construction within certain specified time frames, or (ii) Developer transfers the Site, or portion thereof, in violation of the terms of the DDA, all as further described herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and all of the terms and conditions contained in the DDA, Developer hereby grants to Agency the following repurchase options: 882/015610-0061 J Ny 380889.08 a11/26/03 r ,v{ 1. Repurchase Option I - Failure to Commence Construction Subject to Section 4(f), Developer hereby grants to Agency an exclusive option to repurchase (i) the Site, or any portion thereof, if Developer fails to commence construction of the Project within one hundred thirty (130) days after the Effective Date; or (ii) any of the individual Parcels then -comprising the Site on which Developer has failed to commence construction (as defined below) of the applicable Phase of Development ("Option I Parcel(s)") within the times set forth in the Commencement and Completion Schedule attached hereto and incorporated herein as Exhibit "B" (collectively, "Repurchase Option I"). Agency's Repurchase Option I pursuant to clause (ii) above shall also include the option to purchase any "Related Parcel" to the Option I Parcel(s) on which Developer has not yet commenced construction. For the purposes of this Option Agreement, (a) the term commence construction" shall mean Developer's substantial commencement, and thereafter uninterrupted continuation, of excavation work or physical construction on the Site or applicable Parcel, subject to Section 4(f) below, but shall not include any grading work or utility installation that was completed by Developer prior to the Effective Date hereof, and (b) the term "Related Parcel" shall mean any Parcel that has a substantially similar use as another Parcel, as set forth in Exhibit "C", which is attached hereto and incorporated herein by this reference. In the event of Developer's failure to commence construction of the Project or a specific Phase of Development within the time period described above, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the expiration of the time period described above (after expiration of the cure period described in Sections 4(b) and 4(c) hereof) ("Repurchase Option I Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option I by giving written notice to Developer ("Agency's Notice of Option 1 Exercise"), in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option I Period. Notwithstanding anything herein to the contrary, (i) failure of Agency to exercise the Repurchase Option I with respect to Developer's failure to timely commence construction of the Project shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other agreement for Developer's failure to timely commence construction of the Project, and shall not constitute a waiver of Agency of its exercise of this Repurchase Option I with respect to Developer's failure to timely commence construction of a particular Phase of Development; and (ii) failure of Agency to exercise the Repurchase Option I with respect to Developer's failure to timely commence construction of a particular Phase of Development shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other Agreement for Developer's failure to timely commence construction of that Phase of Development and shall not constitute a waiver of Agency of its exercise of this Repurchase Option I with respect to Developer's failure to timely commence construction of any other Phase of Development. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of any other Developer breach of the terms or conditions of the DDA. 892/015610-0061 380889.08 al1/26/03 -2- 5 (b) Repurchase Price - Repurchase Option I Agency's repurchase price for the Site, or portion thereof, or for the Option I Parcel(s) and any Related Parcels Agency is entitled, and elects, to purchase ("Repurchase Option I Repurchase Price"), shall be seventy-five percent (75%) of Developer's Purchase Price for the Site, portion thereof, or applicable Parcel(s), as set forth in Exhibit "D", which is attached hereto and incorporated herein by this reference. 2. Repurchase Option II - Failure to Continuously Proceed With or Complete Construction Developer hereby grants to Agency an exclusive option to repurchase any individual Parcel then -comprising the Site ("Option II Parcel(s)"), and any Related Parcel(s) to the Option II Parcel(s) on which Developer has not yet commenced construction if, after commencement of construction of the Phase of Development to be constructed on the Option II Parcel(s), Developer fails to continuously proceed with, and complete, construction of such Phase of Development on the Option II Parcel(s) (collectively, "Repurchase Option II"). For purposes of this Option Agreement, "continuously proceed with construction" shall be defined as construction that is interrupted, if at all, for periods of no longer than thirty (30) days; and "completion of construction of the Phase of Development" shall be defined as City's final inspection of the Phase of Development by the date set forth in the Commencement and Completion Schedule, subject to Section 4(f) below ("Completion Deadline"). In the event of Developer's failure to continuously proceed with construction, or to complete construction of any Phase of Development by the Completion Deadline, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the applicable Completion Deadline (after expiration of the cure period described in Sections 4(b) and 4(c) hereof) ("Repurchase Option II Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option II by giving written notice to Developer, in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option II Period. Failure of Agency to exercise the Repurchase Option II with respect to a particular Phase of Development shall constitute a waiver by Agency of Developer's breach of its obligation to continuously proceed with and complete construction of that Phase of Development within the time set forth in the Commencement and Completion Schedule. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of Developer's obligation to continuously proceed with and complete construction of any other Phase of Development within the time set forth in the Commencement and Completion Schedule, or of any other Developer breach of the terms or conditions of the DDA. (b) Determination of Repurchase Price - Repurchase Option II Agency's repurchase price for the Option II Parcel(s) and any Related Parcel(s) Agency is entitled, and elects, to purchase ("Repurchase Option II Repurchase Price"), shall be the sum of (a) Developer's Purchase Price for the Option II Parcel(s) plus thirty-three and three -tenths percent (33.3%) of "Developer's Construction Costs," and (b) seventy-five percent (75%) of 82/0156al1/2 380889.08 al1/26/03 -3- Developer's Purchase Price for the Related Parcel(s) Developer is entitled, and elects, to purchase. For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean, with respect to development of the Phase of Development to be constructed on the Option II Parcel(s), the lesser of (i) construction costs actually incurred by Developer for development of said Phase of Development from the DDA Date to the date Agency's exercises this Repurchase Option II (the "Construction Period"), and (ii) the constructions costs for the Construction Period set forth in Developer's Preliminary Budget, as approved by Agency as part of Agency's approval of Developer's financing, in accordance with Section 311 of the DDA, which costs may include (i) the amount paid by Developer to the contractor or contractors performing the works of improvement; (ii) reasonable inspection and testing costs paid by Developer to independent third party engineers or consultants in conjunction with said works of improvement (but not including costs, fees, charges, or profits allocated to Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer; (iii) costs and fees paid by Developer to independent third party engineers or consultants with respect to the planning, design, and engineering of the works of improvement (but not including costs, fees, charges, or profits allocated to the Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer); and (iv) the costs and fees incurred by Developer, if any, to obtain financing for the construction of the works of improvement. 3. Repurchase Option III - Transfer of the Site Developer hereby grants to Agency an exclusive option to repurchase (i) the Site if, prior to the time Agency issues a Release of Construction Covenants for any Phase of Development to be constructed thereon, Developer transfers or suffers an involuntary transfer of the Site in violation of the terms of the DDA; or (ii) any of the individual Parcels then -comprising the Site (the "Option III Parcel(s)") and any Related Parcel(s) to the Option III Parcel(s) on which Developer has not yet commenced construction if, prior to the time Agency issues a Release of Construction Covenants for the Phase of Development to be constructed on the Option III Parcel(s), Developer transfers or suffers an involuntary transfer of the Option III Parcel(s) (collectively, "Repurchase Option III"). In the event of Developer's transfer of the Site or any individual Parcels then -comprising the Site in violation of the DDA, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the transfer that gives rise to Agency's option under this Section ("Repurchase Option III Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option III by giving written notice to Developer ("Agency's Notice of Option III Exercise"), in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option III Period. Notwithstanding anything herein to the contrary, (i) failure of Agency to exercise the Repurchase Option III with respect to Developer's transfer or sufferance of an involuntary transfer of the Site shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site, and (ii) failure of Agency to exercise the Repurchase Option III with respect to Developer's transfer or sufferance of an involuntary transfer of a Parcel shall not constitute a waiver by 882/015610-0061 380889.08 a11/26/03 -4- Agency of any remedies it may have under the terms of the DDA or of any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Parcel, and shall not constitute a waiver by Agency of its exercise of this Repurchase Option III with respect to any other Parcel then -comprising the Site. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of any other Developer breach of the terms or conditions of the DDA. (b) Repurchase Price - Repurchase Option III Agency's repurchase price for the Site or for the Option III Parcel(s) and any Related Parcels Agency is entitled, and elects, to purchase ("Repurchase Option III Repurchase Price") shall be as follows: i) In the event Developer has not yet commenced construction of the Project or applicable Phase of Development at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set forth in Section 1(b) of this Option Agreement. ii) In the event Developer has commenced construction of the Project or applicable Phase of Development at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Repurchase Price shall be (1) for the Option III Parcel(s), the Repurchase Option II Repurchase Price, as set forth in Section 2(b) of this Option Agreement, and (2) for the Related Parcels Agency is entitled, and elects, to purchase, the Repurchase Option I Repurchase Price, as set forth in Section 1(b) of this Option Agreement. 4. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to Repurchase Option I, Repurchase Option II, and Repurchase Option III: (a) Successors and Assigns. The Repurchase Option I, Repurchase Option II, and Repurchase Option III created hereby shall be irrevocable by Developer and, subject to any subordination by Agency in accordance with paragraph (e) below, shall be binding upon the successors and assigns of Developer. (b) Developer's Right to Cure Certain Defaults. Notwithstanding anything herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a written notice to Developer regarding Developer's failure to commence, continuously proceed with, or complete, construction of the Project (with any of the above failures referred to hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty (60) day period, and diligently prosecute the same to completion. (c) Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may ?_ 0 882/015610-0061 _ 5 _ J S 390889.08 a11/26/03 deliver any notice or demand to Developer with respect to an Option Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. (d) No Agency Obligation. Notwithstanding any covenant, term, or provision in this Section 4 to the contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III. (e) Termination of Option Agreement. In the event Developer commences and completes construction of any particular Phase of Development and Agency has not exercised Repurchase Option I, Repurchase Option II, or Repurchase Option III, Agency shall execute and record a termination of this Option Agreement with respect to the underlying Parcel of said Phase of Development within fifteen (15) business days after the final and permanent Certificate of Occupancy for the Phase of Development is issued by the City. (f) Enforced Delay. Notwithstanding anything to the contrary herein, in addition to specific provisions of this Option Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority litigation; unusually severe weather; inability to secure necessary labor, materials or tools; acts of the other party; acts or the failure to act of a public or governmental agency or entity (except that acts or the failure to act of Agency shall not excuse performance by Agency unless the act or failure is caused by the acts or omissions of Developer); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall continue to exercise commercially reasonable efforts to minimize the period of the delay. An extension of time for any such cause shall be limited to the period of the Enforced Delay, and shall commence to run from the time of the commencement of the cause, provided notice by the party claiming such extension is sent to the other party within thirty (30) days following the commencement of the cause. The following shall not be considered as events or causes beyond the control of Developer, and shall not entitle Developer to an extension of time to perform: (i) Developer's failure to obtain financing for the Project or for any Phase of Development, (ii) Developer's failure to negotiate agreements with prospective tenants or users for the Project or for any Phase of Development, (iii) interest rates or (iv) economic or market conditions. Times of performance under this Option Agreement may also be extended by mutual written agreement by Agency and Developer. Agency's Executive 882/015610-0061 380899.08 al1/26/03 -6- 583 Director shall also have the authority on behalf of Agency to administratively approve extensions of time not to exceed a cumulative total of one (1) year. (g) Subordination. The Agency agrees to subordinate Repurchase Option II and Repurchase Option III to Developer's construction loan(s) for each Phase of Development and to the deed of trust securing Developer's investor's loan for Developer's construction of the Suites Hotel on the Suites Hotel Parcel, the Parcel 2 Casitas Development Component on Casitas Parcel 2, the Parcel 3 Casitas Development Component on Casitas Parcel 3, and the Parcel 4 Casitas Development Component on Casitas Parcel 4, provided all of the following conditions are met: i) Loan Amount. (1) for the Parcel A Medical Office/Surgical Facility Component, the Parcel 1 Restaurant, the Parcel 5 Residential Development, the Parcel 7 Residential Development, the Parcel 8 Sanctuary Villas Component, the Parcel 9 Sanctuary Villas Component, the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, the Parcel 12 Medical Office/Surgical Facility Component, and the Parcel 13 Restaurant, the maximum cumulative principal amount of the construction loan for the applicable Phase of Development shall not exceed ninety percent (90%) of the lender's appraised value of the Parcel on which said Phase of Development shall be constructed, upon completion of the Phase of Development, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction, and (2) for the Suites Hotel, the Parcel 2 Casitas Development Component, the Parcel 3 Casitas Development Component, and the Parcel 4 Casitas Development Component, the maximum cumulative principal amount, collectively, of Developer's construction loan plus Developer's investor's loan, shall not exceed ninety percent (90%) of the lender's appraised value of the Parcel on which the applicable Phase of Development shall be constructed, upon completion of the Phase of Development, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction; ii) Use of Loan Proceeds. The loan(s) shall obligate Developer to expend loan proceeds for no other purpose than the applicable Phase of Development; and iii) Notice and Agency's Opportunity to Cure. The loan(s) shall provide that any notice of a Developer breach or default shall also be sent to the Agency at the address listed in Section 5 and that upon receipt of such notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default, and (C) purchase the Site from Developer subject to the construction lender's deed of trust, without the consent of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to accelerate the amounts due under the loan. (h) Agency's Investigation of Site. Agency shall have forty-five (45) days after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase Option I, Repurchase Option II, or Repurchase Option III to enter upon the Site (or applicable 882/015610-0061 380889.08 a11/26/03 -7- portion thereof) to conduct any tests, inspections, investigations, or studies of the condition of the Site (or applicable portion thereof). Developer shall permit Agency access to the Site (or applicable portion thereof) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be subject to Agency's approval of any environmental and other site testing conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or applicable portion thereof). (i) Escrow Provisions. i) Within five (5) business days after Agency has exercised Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), or as soon thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow company selected by Agency for the reconveyance of the Site (or applicable portion thereof) to Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by Agency are delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and Agency in writing of the date of the Opening of Escrow promptly following the opening of the Escrow. ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency ("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of Riverside, State of California. Possession of the Site, or portion thereof, shall be delivered to Agency at the Close of Escrow. iii) This Option Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow Holder as well as an agreement between Developer and Agency. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to Agency's approval of a then -current preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Site from Agency to Developer shall be removed by Developer at its sole expense prior to the Close of Escrow pursuant to this Section 4(i) unless such exception(s) is (are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Site (in the form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Site is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to 882/015610-0061 085 380889.08 a11/26/03 -8- Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by Developer. v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price; (ii) one-half (1 /2) of the escrow fees; (iii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from Agency's request that the amount of insurance be higher than the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price; and (iv) any and all additional instruments or other documents required from Agency (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1 /2) of the escrow fees; and (iii) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. Developer shall also be required to pay for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable), showing title vested in Agency free and clear of all liens and encumbrances except those permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a commercial property conveyance in Riverside County. vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (5) above, and Escrow Holder is in a position to cause the Title Policy to be issued to Agency, and provided Agency has approved of the condition of the Site, or applicable portion thereof, Escrow Holder shall close the Escrow by taking the following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the applicable of the Option I Repurchase Price, the Option II Repurchase Price, or the Option III Repurchase Price to Developer. 0) Agency's Right to Acquire the Site. Notwithstanding anything herein to the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option II, or Repurchase Option III, Developer's commencement to cure the default that led to Agency's exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable portion thereof). (k) Agency's Repurchase of Uncompleted Portions of the Property. Notwithstanding anything herein to the contrary, in the event that as a result of Agency exercising Repurchase Option II or Repurchase Option III Agency acquires Residential Parcel 5 and/or Residential Parcel 7, if Developer has obtained a Certificate of Completion from the City �R6 882/015610-0061 380889.08 al 1/26/03 -9- for one or more of the lots that comprise either of said Parcels, (i) the provisions of this Option Agreement shall apply only to that portion of Residential Parcel 5 and/or Residential Parcel 7 (as applicable) for which Certificates of Completion have not been issued ("Uncompleted Portion of the Repurchase Property") and any calculations for determining the Repurchase Option II Repurchase Price or the Repurchase Option III Repurchase Price (as applicable) shall be based solely upon the Uncompleted Portion of the Repurchase Property, and (ii) Developer agrees to cooperate with Agency to effect the subdivision of the Uncompleted Portion of the Repurchase Property from the completed portions of Residential Parcel 5 and/or Residential Parcel 7 (as applicable) (those portions of the Repurchase Property for which Certificates of Completion have been issued). 5. Notices, Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. To Developer: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, CA 92211 Attn: Richard Oliphant With copies to: Selzer, Ealy, Hemphill & Blasdell, LLP 777 Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill and Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 882l015610-0061 J8l 380889.08 a11/26/03 -10- 6. Agency's Option to Acquire Plans If Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option III in accordance with this Agreement, at the option of the Agency, which may be exercised in the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed assignment in a form reasonably acceptable to the Agency of the Developer's right to use all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to (i) the construction of the Project on the Site or (ii) if Agency acquires less than all of the Site, the construction of the Phases(s) of Development applicable to the Parcels which the Agency is acquiring (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Site or applicable portion thereof to date of the termination. Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency understands and agrees that the assignment to Agency under this Section 6 is subject and subordinate to any assignment which Developer may make to a lender providing financing for the Project or applicable Phase of Development, and Agency agrees to execute any documents required by such lender acknowledging and effectuating such subordination of Agency's rights in and to the assignment. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. 7. Applicable Law and Forum; Attorney's Fees The Municipal and Superior Courts of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Option Agreement. This Option Agreement shall be governed by, and construed under, the laws of the State of California. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to. recover damages for any default, to compel specific performance of this Option Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Option 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 default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. If either party to this Option Agreement is required to initiate ' or defend, or is made a party to, any action or proceeding in any way connected with this Option Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. 882/015610-0061 380889.08 a11/26/03 8. Nonliability of Agency Officials and Employees No officer, official, employee, agent, or representative of Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by Agency, or for any amount which may become due to Developer or its successor, or for breach of any obligation of the terms of this Option Agreement. 9. Nondiscrimination Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this Option Agreement or use of the Site. 10. Interpretation The terms of this Option Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Option Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Option Agreement. 11. Entire Agreement This Option Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Option Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 12. Counterparts This Option Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Option Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13. Severability In the event any section or portion of this Option Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Option Agreement. [END - SIGNATURES ON NEXT PAGE] 882/01561"061 1-1 380889.08 al 1/26/03 -12- J 8 `9' IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the date first above written. "DEVELOPER" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President "AGENCY" LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic By: Its: Acting Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency 892/015610-0061 P..Q�) 380889.08a11/26/03 -13- j V V STATE OF CALIFORNIA ) )SS COUNTY OF ) On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, 31 personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 :' r! 380889.08 a11/26/03 -14- 0 9#, EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027138" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 960.27 FEET; THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE; THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00026140" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °42'33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044132" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41 ", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 108979, O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; 882/015610-0061 -15 -5 `� ►,. 380889.08 a11/26/03 THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46111, AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL licit, A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL licit AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 25, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011'26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11 005'41 ", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033102" EAST, A DISTANCE OF 4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033123" EAST; THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 00032'28"3, AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75053'46" EAST; 882/015610-0061 380889.08 a11/26/03 -16- 093 93 THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 07041'06"5, AN ARC DISTANCE OF 280.60 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 67006156" WEST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 68013' 18" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 67006156" EAST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 66001' 12" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028137" WEST, A DISTANCE OF 153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36057'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051135113, AN ARC DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 42.47 ACRES (I,850,000 SQUARE FEET), MORE OR LESS. 882/015610-0061 -17- v 380889.08 a11/26/03 P.O.C. CTR. 1 /4 COR. SEC. 19 MILES AVENUE s oo•zT3s" E 75.00' L6 N 89*31 *23" E 487.01' N 89'33'22" E 960.27' 17 N 00'28'37" W S 00'26'40" E 153.41' to 112.88' T.P.O.S. V ti y S 44'44'32" E lox 90.06' c ti �" N 89.47 47 E SITE N 66'01' 12" E 239.56' (R) AREA-42.47 AC. o L4 PORTION OF THE S. 1 /2 OF SEC. 19, T.5S., R.7E., S.B.M. W • .�. (R) n N L5 N 75'53'46" E o (R) N 4��5 L3 PT. B <yR� 1 =300 c�lyo ty H �T N 86.11'26" E R O LINE DATA NUMBER DIRECTION DISTANCE L1 S W 18'01 " E 397.49' L2 N 48'09'56" W 22.00' L3 N 75'33'02" E 4.22' L4 N 67'06'56" E 20.00' L5 S 67'06'56" W 20.00' L6 N 00*26'40" W 20.00' L7 N 8733'22" E 180.00' 1� EXCEPTION ti PARCEL hI JK ig. PT. A �� tK I ' N 7, 7„ (R) N 42'59'27" E IN I ; 'V G _ (R) 84?r 0 ti CURVE DATA 4 cyr�� NUMBER DELTA RADIUS ARC LENGTH TANGENT C1 41'42'33" 440.00 320.30 167.62 C2 45 2T41." 80.00 63.48 33.52 J.N..N16122 882/015610-0061 _ 1 g- 380889.08 a11/26/03 EXHIBIT "B" COMMENCEMENT AND COMPLETION SCHEDULE Time for Completion of Construction (measured from date City issues final building Time for Commencement of permits for applicable Phase of Phase of Development Construction Development) Parcel A Medical Office/Surgical Facility 690 days after DDA Date 36 months Component First Phase of Development of the Medical 690 days after DDA Date 36 months Office/Surgical Facility Second Phase of Development of the Medical 780 days after DDA Date 36 months Office/Surgical Facility Third Phase of Development of the Medical 870 days after DDA Date 36 months Office/Surgical Facility Parcel 1 Restaurant 600 days after DDA Date 36 months Parcel 2 Casitas Development Component 600 days after DDA Date 36 months Parcel 3 Casitas Development Component 600 days after DDA Date 36 months Parcel 4 Casitas Development Component 600 days after DDA Date 36 months Parcel 5 Residential Development 626 days after DDA Date 18 months Parcel 7 Residential Development 626 days after DDA Date 18 months Parcel 8 Sanctuary Villas Component 690 days after DDA Date 36 months Parcel 9 Sanctuary Villas Component 1230 days after DDA Date 36 months Parcel 13 Restaurant 800 days after DDA Date 36 months Seeley Drive 500 days after DDA Date 180 days after Developer's completion of Suites Hotel Suites Hotel 600 days after DDA Date 18 months 882/015610-0061 380889.08 a 11 /26/03 EXHIBIT " C" RELATED PARCELS The following are groupings of Parcels which are deemed to be Related Parcels: 1. Sanctuary Villas Parcel 8 and Sanctuary Villas Parcel 9. 2. Casitas Parcel 2, Casitas Parcel 3, and Casitas Parcel 4. 3. Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12. 4. Residential Parcel 5 and Residential Parcel 7. 5. Suites Hotel Parcel, Restaurant Parcel 1 and Restaurant Parcel 13. 882/015610-0061 380889.08 al 1/26/03 -20- EXHIBIT "D" PURCHASE TRICE Sanctuary Villas Parcel 8 $ 841,193.42 Sanctuary Villas Parcel 9 2475,409.82 Casitas Parcel 2 510,563.92 Casitas Parcel 3 7735,718.02 Casitas Parcel 4 654,511.46 Landscape Parcel C 0 Landscape Parcel E 0 Landscape Parcel H 0 Landscape Parcel I 0 Medical Office/Surgical Facility A 1,455,219.64 Medical Off ce/Surgical Facility 10 1643,190.15 Medical Office/Surgical Facility 11 276,649.17 Medical Office/Surgical Facility 12 164,190.15 Residential Parcel 5 1351,694.34 Residential Parcel 7 5579,028.39 Restaurant Parcel 1 2069924.58 Restaurant Parcel 13 251,908.18 Seeley Drive Parcel 0 Suites Hotel Parcel 753,475.39 Well Site Parcel 116,957.37 Property $71,1099634.00 882/015610-0061 — -21f 380889.08 a11/26/03 0 ATTACHMENT NO. 14B FORM OF OPTION AGREEMENT [SEE FOLLOWING PAGES] 882/015610-0061 380889.08 al1/26/03 FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383) OPTION AGREEMENT NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS OPTION AGREEMENT ("Option Agreement") is made this day of , 2003 (the "Effective Date"), by CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS A. Developer has entered into a Disposition and Development Agreement ("DDA") dated , 2003 (the "DDA Date") with the La Quinta Redevelopment Agency ("Agency"), pursuant to which Agency has agreed to convey to Developer, and has conveyed all or a portion thereof to Developer, that certain real property located southeast of the Miles Avenue and Washington Street intersection, in the City of La Quinta, County of Riverside, State of California (the "Site"). The Site is composed of (_) [Insert applicable number] individual parcels (individually, a "Parcel," and collectively, the "Parcels"), each of which is legally described in Exhibit "A" attached hereto and incorporated herein. The Parcels are identified in the DDA as [Insert applicable Parcels]. All defined terms used herein shall have the same meaning as set forth in the DDA unless otherwise stated. As used herein, the term "Parcel" and "Parcels" shall have the meaning ascribed above. B. As a condition to the Agency's conveyance of any portion of the Site to Developer, Developer was required to grant to Agency an option to repurchase from Developer a Parcel (the "Option Parcel"), and any of the other Parcels which Developer has acquired from Agency if Developer has not yet commenced construction on such Parcels, if (i) Developer fails to commence, continuously proceed with, or complete construction on the Option Parcel within certain specified time frames, or (ii) Developer transfers the Option Parcel in violation of the terms of the DDA, all as further described herein. 882/015610-0061 380889.08 al 1/26/03 (, �`� (�/��J V � V NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and all of the terms and conditions contained in the DDA, Developer hereby grants to Agency the following repurchase options: 1. Repurchase Option I - Failure to Commence Construction Subject to Section 4(f), Developer hereby grants to Agency an exclusive option to repurchase any Parcel Developer has acquired from Agency if Developer fails to commence construction thereon of the applicable Phase of Development within the time set forth in the Commencement and Completion Schedule attached hereto and incorporated herein as Exhibit "B" ("Repurchase Option I"). Agency's Repurchase .Option I shall also include the option to repurchase any other Parcel which Developer has acquired from Agency if Developer has not yet commenced construction thereon. For the purposes of this Option Agreement, "commence construction" shall mean Developer's substantial commencement, and thereafter uninterrupted continuation, of excavation work or physical construction on the applicable Parcel, subject to Section 4(f) below, but shall not include any grading work or utility installation that was completed by Developer prior to the Effective Date hereof. In the event of Developer's failure to commence construction of the applicable Phase of Development within the time period described above, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the expiration of the time period described above (after expiration of the cure period described in Sections 4(b) and 4(c) hereof) ("Repurchase Option I Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option I by giving written notice to Developer ("Agency's Notice of Option 1 Exercise"), in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option I Period. Notwithstanding anything herein to the contrary, failure of Agency to exercise the Repurchase Option I with respect to Developer's failure to timely commence construction of a particular Phase of Development shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other Agreement for Developer's failure to timely commence construction of that Phase of Development and shall not constitute a waiver of Agency of its exercise of this Repurchase Option I with respect to Developer's failure to timely commence construction of any other Phase of Development. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of any other Developer breach of the terms or conditions of the DDA. (b) Repurchase Price - Repurchase Option I Agency's repurchase price for any of the Parcels Agency is entitled, and elects, to purchase ("Repurchase Option I Repurchase Price"), shall be seventy-five percent (75%) of Developer's Purchase Price for the applicable Parcel(s), as set forth in Exhibit "C", which is attached hereto and incorporated herein by this reference. 882/015610-0061 380889.08 a11/26/03 -2- 2. Repurchase Option II - Failure to Continuously Proceed With or Complete Construction Developer hereby grants to Agency an exclusive option to repurchase any individual Parcel ("Option II Parcels)"), and any other Parcel(s) which Developer has acquired from Agency and on which Developer has not yet commenced construction if, after commencement of construction of the Phase of Development to be constructed on the Option II Parcel(s), Developer fails to continuously proceed with, and complete, construction of such Phase of Development on the Option II Parcel(s) (collectively, "Repurchase Option II"). For purposes of this Option Agreement, "continuously proceed with construction" shall be defined as construction that is interrupted, if at all, for periods of no longer than thirty (30) days; and "completion of construction of the Phase of Development" shall be defined as City's final inspection of the Phase of Development by the date set forth in the Commencement and Completion Schedule, subject to Section 4(f) below ("Completion Deadline"). In the event of Developer's failure to continuously proceed with construction, or to complete construction of any Phase of Development by the Completion Deadline, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the applicable Completion Deadline (after expiration of the cure period described in Sections 4(b) and 4(c) hereof) ("Repurchase Option II Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option II by giving written notice to Developer, in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option II Period. Failure of Agency to exercise the Repurchase Option II with respect to a particular Phase of Development shall constitute a waiver by Agency of Developer's breach of its obligation to continuously proceed with and complete construction of that Phase of Development within the time set forth in the Commencement and Completion Schedule. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of Developer's obligation to continuously proceed with and complete construction of any other Phase of Development within the time set forth in the Commencement and Completion Schedule, or of any other Developer breach of the terms or conditions of the DDA. (b) Determination of Repurchase Price - Repurchase Option II Agency's repurchase price for the Option II Parcel(s) and any other Parcel(s) Agency is entitled, and elects, to purchase ("Repurchase Option II Repurchase Price"), shall be the sum of (a) Developer's Purchase Price for the Option II Parcel(s) plus thirty-three and three -tenths percent (33.3%) of "Developer's Construction Costs," and (b) seventy-five percent (75%) of Developer's Purchase Price for the other Parcel(s) Developer is entitled, and elects, to purchase. For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean, with respect to development of the Phase of Development to be constructed on the Option II Parcel(s), the lesser of (i) construction costs actually incurred by Developer for development of said Phase of Development from the DDA Date to the date Agency's exercises this Repurchase Option II (the "Construction Period"), and (ii) the constructions costs for the Construction Period set forth in Developer's Preliminary Budget, as approved by Agency as part of Agency's approval of Developer's financing, in accordance with Section 311 of the DDA, which costs may 882/015610-0061 _3_ 380889.08 al 1/26/03 �✓' 4. include (i) the amount paid by Developer to the contractor or contractors performing the works of improvement; (ii) reasonable inspection and testing costs paid by Developer to independent third party engineers or consultants in conjundti6n with said works of improvement (but not including costs, fees, charges, or profits allocated to Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer; (iii) costs and fees paid by Developer to independent third parry engineers or consultants with respect to the planning, design, and engineering of the works of improvement (but not including costs, fees, charges, or profits allocated to the Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer); and (iv) the costs and fees incurred by Developer, if any, to obtain financing for the construction of the works of improvement. 3. Repurchase Option III - Transfer of the Site Developer hereby grants to Agency an exclusive option to repurchase (i) the Site if, prior to the time Agency issues a Release of Construction Covenants for any Phase of Development to be constructed thereon, Developer transfers or suffers an involuntary transfer of the Site in violation of the terms of the DDA; or (ii) any of the Parcels (the "Option III Parcel(s)") and any other Parcel(s) which Developer has acquired from Agency and on which Developer has not yet commenced construction if, prior to the time Agency issues a Release of Construction Covenants for the Phase of Development to be constructed on the Option III Parcel(s), Developer transfers or suffers an involuntary transfer of the Option III Parcel(s) (collectively, "Repurchase Option III"). In the event of Developer's transfer of the Site or any of the Parcels in violation of the DDA, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the transfer that gives rise to Agency's option under this Section ("Repurchase Option III Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option III by giving written notice to Developer ("Agency's Notice of Option III Exercise"), in accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase Option III Period. Notwithstanding anything herein to the contrary, (i) failure of Agency to exercise the Repurchase Option III with respect to Developer's transfer or sufferance of an involuntary transfer of the Site shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site, and (ii) failure of Agency to exercise the Repurchase Option III with respect to Developer's transfer or sufferance of an involuntary transfer of a Parcel shall not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Parcel, and shall not constitute a waiver by Agency of its exercise of this Repurchase Option III with respect to any of the other Parcels. Any Agency waiver as described in the preceding sentence shall not be deemed a waiver of any other Developer breach of the terms or conditions of the DDA. 882/015610-0061 -4- V v? 3 380889.08 a11/26/03 (b) Repurchase Price - Repurchase Option III Agency's repurchase price for the Site or for the Option III Parcel(s) and any other Parcels Agency is entitled, and elects, to purchase ("Repurchase Option III Repurchase Price") shall be as follows: i) In the event Developer has not yet commenced construction of the applicable Phase of Development at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set forth in Section 1(b) of this Option Agreement. ii) In the event Developer has commenced construction of the applicable Phase of Development at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Repurchase Price shall be (1) for the Option III Parcel(s), the Repurchase Option II Repurchase Price, as set forth in Section 2(b) of this Option Agreement, and (2) for the other Parcels Agency is entitled, and elects, to purchase, the Repurchase Option I Repurchase Price, as set forth in Section 1(b) of this Option Agreement. 4. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to Repurchase Option I, Repurchase Option II, and Repurchase Option III: (a) The Repurchase Option I, Repurchase Option II, and Repurchase Option III created hereby shall be irrevocable by Developer and, subject to any subordination by Agency in accordance with paragraph (e) below, shall be binding upon the successors and assigns of Developer. (b) Notwithstanding anything herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a written notice to Developer regarding Developer's failure to commence, continuously proceed with, or complete, construction of the Project (with each of the above failures referred to hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty (60) day period, and diligently prosecute the same to completion. (c) With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may deliver any notice or demand to Developer with respect to an Option Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires 882/015610-0061 380889.08 a11/26/03 -5- C4 title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. (d) Notwithstanding any covenant, term, or provision in this Section 4 to the contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III. (e) In the event Developer commences and completes construction of any of the Phases of Development to be constructed on the Parcels and Agency has not exercised Repurchase Option I, Repurchase Option II, or Repurchase Option III, Agency shall execute and record a termination of this Option Agreement with respect to the underlying Parcel of said Phase of Development within fifteen (15) business days after the final and permanent Certificate of Occupancy for the Phase of Development is issued by the City. (f) Notwithstanding anything to the contrary herein, in addition to specific provisions of this Option Agreement, performance by either party hereunder shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock -outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority litigation; unusually severe weather; inability to secure necessary labor, materials or tools; acts of the other party; acts or the failure to act of a public or governmental agency or entity (except that acts or the failure to act of Agency shall not excuse performance by Agency unless the act or failure is caused by the acts or omissions of Developer); or any other causes beyond the reasonable control or without the fault of the party claiming an extension of time to perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall continue to exercise commercially reasonable efforts to minimize the period of the delay. An extension of time for any such cause shall be limited to the period of the Enforced Delay, and shall commence to run from the time of the commencement of the cause, provided notice by the party claiming such extension is sent to the other party within thirty (30) days following the commencement of the cause. The following shall not be considered as events or causes beyond the control of Developer, and shall not entitle Developer to an extension of time to perform: (i) Developer's failure to obtain financing for any Phase of Development to be constructed on the Site, (ii) Developer's failure to negotiate agreements with prospective tenants or users for any Phase of Development to be constructed on the Site, (iii) interest rates or (iv) economic or market conditions. Times of performance under this Option Agreement may also be extended by mutual written agreement by Agency and Developer. Agency's Executive Director shall also have the authority on behalf of Agency to administratively approve extensions of time not to exceed a cumulative total of one (1) year. (g) Subordination. The Agency agrees to subordinate Repurchase Option II and Repurchase Option III to Developer's construction loan(s) for the [Insert applicable Phases of Development] [Insert "and to the deed of trust securing Developer's investor's loan for the (Insert applicable Phases of Development)" if this Option Agreement is recorded against 882/015610-0061 380889.08 a] 1/26/03 -6- �-' the Suites Hotel Parcel, Casitas Parcel 2, Casitas Parcel 3, or Casitas Parcel 41, provided that (i) the maximum cumulative principal amount of (1) the construction loan for each of the [Insert applicable Phases of Development] [insert "and (2) the collective sum of Developer's construction loan plus Developer's investor's loan for each of the (Insert applicable Phases of Development)" if this Option Agreement is recorded against the Suites Hotel Parcel, Casitas Parcel 2, Casitas Parcel 3, or Casitas Parcel 41 shall not exceed ninety percent (90%) of the lender's appraised value of the Parcel on which said Phase of Development shall be constructed, upon completion of the Phase of Development, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction, (ii) The loan(s) shall obligate Developer to expend loan proceeds for no other purpose than the applicable Phase of Development; and (iii) the loan(s) shall provide that any notice of a Developer breach or default shall also be sent to the Agency at the address listed in Section 5 and that upon receipt of such notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default, and (C) purchase the Site (or applicable Parcel(s)) from Developer subject to the construction lender's deed of trust, without the consent of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to accelerate the amounts due under the loan. (h) Agency's Investigation of Site. Agency shall have forty-five (45) days after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase Option I, Repurchase Option II, or Repurchase Option III to enter upon the Site (or applicable Parcel(s)) to conduct any tests, inspections, investigations, or studies of the condition of the Site (or applicable Parcel(s)). Developer shall permit Agency access to the Site (or applicable Parcel(s)) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be subject to Agency's approval of any environmental and other site testing conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or applicable Parcel(s)). (i) Escrow Provisions. i) Within five (5) business days after Agency has exercised Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), or as soon thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow company selected by Agency for the reconveyance of the Site (or applicable Parcel(s)) to Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by Agency are delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and Agency in writing of the date of the Opening of Escrow promptly following the opening of the Escrow. 882/015610-0061 380889.08 al1/26/03 -7- ' ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency ("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of Riverside, State of California. Possession of the Site, or applicable Parcel(s), shall be delivered to Agency at the Close of Escrow. iii) This Option Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow Holder as well as an agreement between Developer and Agency. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to Agency's approval of a then -current preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Site (or applicable Parcel(s)) from Agency to Developer shall be removed by Developer at its sole expense prior to the Close of Escrow pursuant to this Section 4(i) unless such exception(s) is (are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Site (or applicable Parcel(s)) (in the form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Site (or applicable Parcel(s)) is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by Developer. v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price; (ii) one-half (1 /2) of the escrow fees; (iii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from Agency's request that the amount of insurance be higher than the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price; and (iv) any and all additional instruments or other documents required from Agency (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable Parcel(s), to Agency. On or before 1:00 p.m. on the last business day, preceding the scheduled Closing Date, Developer shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1 /2) of the escrow fees; and (iii) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable Parcel(s), to Agency. Developer shall also be required to pay for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable), showing title vested in Agency free and clear of all liens and encumbrances except those 882/015610-0061 380889.08 al1/26/03 -8- `1 permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a connhercial property conveyance in Riverside County. vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (5) above, and Escrow Holder is in a position to cause the Title Policy to be issued to Agency, and provided Agency has approved of the condition of the Site, or applicable Parcel(s), Escrow Holder shall close the Escrow by taking the following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the applicable of the Option I Repurchase Price, the Option II Repurchase Price, or the Option III Repurchase Price to Developer. 0) Notwithstanding anything herein to the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option II, or Repurchase Option III, Developer's commencement to cure the default that led to Agency's exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable portion thereof). (k) [Insert the following if this Option Agreement is recorded against Residential Parcel 5 and Residential Parcel 7: "Notwithstanding anything herein to the contrary, in the event that as a result of Agency exercising Repurchase Option II or Repurchase Option III Agency acquires Residential Parcel 5 and/or Residential Parcel 7, if Developer has obtained a Certificate of Completion from the City for one or more of the lots that comprise either of said Parcels, (i) the provisions of this Option Agreement shall apply only to that portion of Residential Parcel 5 and/or Residential Parcel 7 (as applicable) for which Certificates of Completion have not been issued ("Uncompleted Portion of the Repurchase Property") and any calculations for determining the Repurchase Option II Repurchase Price or the Repurchase Option III Repurchase Price (as applicable) shall be based solely upon the Uncompleted Portion of the Repurchase Property, and (ii) Developer agrees to cooperate with Agency to effect the subdivision of the Uncompleted Portion of the Repurchase Property from the completed portions of Residential Parcel 5 and/or Residential Parcel 7 (as applicable) (those portions of the Repurchase Property for which Certificates of Completion have been issued)." 5. Notices. Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director 892/015610-0061 380889.08 al1/26/03 -9- [� V1.� With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. To Developer: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, CA 92211 Attn: Richard Oliphant With copies to: Selzer, Ealy, Hemphill & Blasdell, LLP 777 Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill and Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 6. Agency's Option to Acquire Plans If Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option III in accordance with this Agreement, at the option of the Agency, which may be exercised in the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed assignment in a form reasonably acceptable to the Agency of the Developer's right to use all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to (i) the construction of the [Insert applicable Phases of Development] on the Site or (ii) if Agency acquires less than all of the Site, the construction of the Phases(s) of Development applicable to the Parcels which the Agency is acquiring (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Site or applicable Parcel(s) to date of the termination. Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency understands and agrees that the assignment to Agency under this Section 6 is subject and subordinate to any assignment which Developer may make to a lender providing financing for the applicable Phase of Development, and Agency agrees to execute any documents required by such lender acknowledging and effectuating such subordination of Agency's rights in and to the assignment. Agency's 882/015610-0061 380889.08 al 1/26/03 -1 0- acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. 7. Applicable Law and Forum; Attorneys Fees The Municipal and Superior Courts of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Option Agreement. This Option Agreement shall be governed by, and construed under, the laws of the State of California. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Option Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Option 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 default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. If either party to this Option Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Option Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. 8. Nonliability of Agency Officials and Employ No officer, official, employee, agent, or representative of Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by Agency, or for any amount which may become due to Developer or its successor, or for breach of any obligation of the terms of this Option Agreement. 9. Nondiscrimination Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this Option Agreement or use of the Site. 10. Interpretation The terms of this Option Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Option Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Option Agreement. 882/015610-0061 -11- 380889.08 a11/26/03 610 11. Entire Agreement This Option Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Option Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 12. Counterparts This Option Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Option Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13. Severability In the event any section or portion of this Option Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Option Agreement. [END - SIGNATURES ON NEXT PAGE] 882/015610-0061 380889.08 a11/26/03 -12- 611 IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the date first above written. "DEVELOPER" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President "AGENCY" LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic BY: Its: Acting Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency 882/015610-0061 380889.08 al1/26/03 -13- STATE OF CALIFORNIA ) )SS COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 613 380889.08 a11/26/03 -14- EXHIBIT "A" LEGAL DESCRIPTION OF THE PARCELS IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027138" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 960.27 FEET; THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE; THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE OF 80.00 FEET; THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41042'33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41 ", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047`47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 165 1994 AS INSTRUMENT NO. 108979, O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; 882/015610-0061 380889.08 a11/26/03 -15- 614 14 THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'461151 AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE. COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL "C", A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C" AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011'26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11 005'41 ", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF 4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033,23" EAST; THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 7505346" EAST; 882/015610-0061 16- 380889.08 al1/26/03 -5 THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 07041'06"5 AN ARC DISTANCE OF 280.60 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 68013' 18" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 67006156" EAST, A DISTANCE OF 20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 66001' 12" EAST; THENCE NORTHWESTERLY ALONG ' LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028137" WEST, A DISTANCE OF 153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36057'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS. 882/015610-0061 380889.08 a11/26/03 -17- P.O.C. CTR. 1 /4 -COR. SEC. 19 in MILES, AVENUE S 00'27'38" E 75.00' _ _ L6 Lo - _ £- N 89'31'23" E 487.01' N 89'33'22" E 960.27' 1-7 N 00'28'37" W in S 00*26*40" 112.88' E 153.41' T.P.OJL r- G 9S S 44'44'32" E y \ 90.06' C2 N SITE 8 E N 66'01 12 E 239.56'" (R) AREA-42.47 AC. o L4 PORTION OF THE S. 1 /2 OF N 6 SEC. 19, T.5S., R.7E., S.B.M. w (R) M L5 N 75'53'46" E N o vPR1E5T. B N FAY 1 "=300' C N 86,11, 6" E .LINE DATA NUMBER I DIRECTION DISTANCE L1 S 00' 1 S'0.1 " E 397.49' L2 N 48'09'56" W 22.00' L3 N 75'33'02" E 4.22' 14 N 67*06*56" E 20.00' L5 S .67'.06'56" W 20.00' L6 N- 0(726'40" W 20.00' L7 N 89'33-22" E 80.00' II EXCEPTION PARCEL .��IK PT. A N (R) i N 42'599)27 E s42r o3 *y CURVE DATA1. 4 , F* �'�F �F9 L2 NUMBER DELTA RADIUS ARC LENGTH TANGENT Cl* 41'42'33" 440.00 320.30 167.62 C2 4527'41 " 80.00 63.48 33.52 C3 02*57*46" 4565.17 236.07 118.06 .C4 19'24'03" 2500.00 846.52 427.35 C5 11'05*41" 2072.00 401.22 201.24 C6 19'S8'08" 2092.00 729.11 368.29 C7 02' 12'44" 2072.00 80.00 40.01 C8 07'41'06" 2092.00 280.60 140.51 C9 00'32'28" 2500.00 125-0-0-00 23.61 C10 1T51'35" 822.91 fifi:� ■ 882/015610-0061 380889.08 a11/26/03 -18- J.N. 1612 �� 61- EXHIBIT "B" COMMENCEMENT AND COMPLETION SCHEDULE Phase of Development Parcel A Medical Office/Surgical Facility Component First Phase of Development of the Medical Office/Surgical Facility Second Phase of Development of the Medical Office/Surgical Facility Third Phase of Development of the Medical Office/Surgical Facility Parcel 1 Restaurant Parcel 2 Casitas Development Component Parcel 3 Casitas Development Component Parcel 4 Casitas Development Component Parcel 5 Residential Development Parcel 7 Residential Development Parcel 8 Sanctuary Villas Component Parcel 9 Sanctuary Villas Component Parcel 13 Restaurant Seeley Drive Suites Hotel Time for Commencement of Construction 690 days after DDA Date 690 days after DDA Date 780 days after DDA Date 870 days after DDA Date 600 days after DDA Date 600 days after DDA Date 600 days after DDA Date 600 days after DDA Date 626 days after DDA Date 626 days after DDA Date 690 days after DDA Date 1230 days after DDA Date 800 days after DDA Date 500 days after DDA Date 600 days after DDA Date Time for Completion of Construction (measured from date Cfty issues final building permits for applicable Phase of Development) 36 months 36 months 36 months 36 months 36 months 36 months 36 months 36 months 18 months 18 months 36 months 36 months 36 months 180 days after Developer's completion of Suites Hotel 18 months 613 882/015610-0061 380889.08 a11/26/03 -19- EXHIBIT " C" PURCHASE PRICE Sanctuary Villas Parcel 8 $ 8413,193.42 Sanctuary Villas Parcel 9 247,409.82 Casitas Parcel 2 5103,563.92 Casitas Parcel 3 773,718.02 Casitas Parcel 4 654,511.46 Landscape Parcel C 0 Landscape Parcel E 0 Landscape Parcel H 0 Landscape Parcel I 0 Medical Office/Surgical Facility A 1,455,219.64 Medical Office/Surgical Facility 10 1643,190.15 Medical Office/Surgical Facility 11 276,649.17 Medical Office/Surgical Facility 12 1649190.15 Residential Parcel 5 1351,694.34 Residential Parcel 7 5575,028.39 Restaurant Parcel 1 2065,924.58 Restaurant Parcel 13 2513,908.18 Seeley Drive Parcel 0 Suites Hotel Parcel 7531,475.39 Well Site Parcel 116,957.37 Property $73,109,634.00 882/015610-0061 380889.08 a11/26/03 _20_ 619 ATTACHMENT NO. 15 DECLARATION [SEE FOLLOWING PAGES] 882/015610-0061 380889.08 al1/26/03 ti RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:) La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Attention: Executive Director (Space Above for Recorder's Use) (Exempt from Recordation Fee per Gov. Code § 27383) DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR PROPERTY THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS FOR PROPERTY (the "Declaration") is made by and between CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company (the "Covenantor") and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency" or "Covenantee") as of the day of 52003. RECITALS A. Covenantor is the fee owner of record of that certain real property (the "Property") located in the City of La Quinta, County of Riverside, State of California, legally described in the attached Exhibit "A", which Property Covenantor acquired from Agency pursuant to a Grant Deed recorded concurrently herewith. B. This Declaration and the Grant Deed described in Recital A are part of a redevelopment project described in that certain Disposition and Development Agreement ("DDA"), entered into by and between Covenantor and Covenantee on or about , . As described in the DDA, the Property includes not less than fifty-four (54) single family lots on each of which Covenantor shall construct a single family home, forty (40) of which single family homes shall be held for sale to "Eligible Buyers" (the "Affordable Housing Component") (as that term is defined in Section IS hereof) (the "Project"). To assist Covenantor with the construction of the Affordable Housing Component, Covenantee provided financial assistance to Covenantor, in the form of a loan (the "Covenantee Loan"). Repayment of the Covenantee Loan is secured by a promissory note (the "Note") and a deed of trust (the "Deed of Trust"), which Deed of Trust was recorded concurrently herewith. The DDA provides that at the close of escrow for Covenantor's sale of one of the "Affordable Homes" (as that term is defined in Section Lb hereof) to an Eligible Buyer, Covenantor may transfer a portion of the Covenantee Loan to such Eligible Buyer, in the form of downpayment assistance provided from the Covenantor to the Eligible Buyer, and the outstanding balance due from Covenantor to Covenantee under the Note and the Deed of Trust will automatically be reduced by a like amount, all as further described in the DDA. 882/015610-0061 (l ; 380889.08 al 1/26/03 �J4. C. The Property is within the La Quinta Redevelopment Project No. 2 (the "Project Area") in the City of La Quinta and is subject to the provisions of the Redevelopment Plan for the Project Area (the "Redevelopment Plan"). D. The Community Redevelopment Law (California Health and Safety Code 33000 et seq.) provides that a redevelopment agency shall establish covenants running with the land in furtherance of redevelopment plans. NOW, THEREFORE, THE COVENANTEE AND THE COVENANTOR AGREE AS FOLLOWS: 1. Definitions. a. "Affordability Period" for each Affordable Home shall be forty-five (45) years from the date said Affordable Home is transferred to an Eligible Buyer, as evidenced by the recordation of a Buyer Affordable Housing Agreement by said Eligible Buyer. b. "Affordable Homes" shall mean the forty (40) single family homes in the Project that are restricted for sale to Eligible Buyers. Any individual such home shall be referred to as an "Affordable Home." Each of the Affordable Homes shall be subject to the restrictions of this Declaration. C. "Affordable Housing Cost" shall be that purchase price which would result in monthly housing payments, including the cost for a thirty (30) year mortgage for that portion of the purchase price which is to be paid in the form of loan proceeds under currently prevailing mortgage loan rates or the interest rate of any below -market mortgage program for which such purchaser has obtained a first trust deed loan, of (i) for households which earn not more than one hundred ten percent (110%) of Riverside County median income, not less than twenty-eight percent (28%) of the gross income of the household, nor more than thirty-five percent (35%) of one hundred ten percent (110%) of Riverside County median income adjusted for family size appropriate for the Affordable Home, or (ii) if the gross income of the household exceeds one hundred ten percent (110%) of Riverside County median income, not more than thirty-five percent (35%) of the actual gross income of the household. A sample calculation of an Affordable Housing Cost for the Affordable Homes is set forth on Exhibit "B", which is attached hereto and incorporated herein by this reference ("Calculation of Affordable Housing Costs"). d. "Buyer Affordable Housing Documents" shall collectively refer to the following documents, all of which shall be required to be executed by each buyer of an Affordable Home to assure the affordability of the Affordable Home to Eligible Buyers: (i) an affordable housing agreement that prohibits the resale of the Affordable Home except to an Eligible Buyer and grants the Covenantee an option to purchase the Affordable Home ("Option to Purchase") in the event the buyer is unable to locate an Eligible Buyer ("Buyer Affordable Housing Agreement"); (ii) a Memorandum reciting Covenantee's Option to Purchase ("Buyer Memorandum re Option to Purchase"); (iii) a promissory note ("Buyer Promissory Note") whose terms shall include a second deed of trust securing the Buyer Promissory Note ("Buyer Second Trust Deed"); and (iv) a disclosure statement acknowledging and consenting to all of the ,882/015610-0061 V 1.,41 380889.08 a11/26/03 affordability restrictions contained in the aforementioned documents ("Buyer Disclosure Statement"). e. "Covenantor" shall mean Covenantor and any successor in interest of Covenantor to the Site or any portion thereof. f. "Eligible Buyer" shall mean a buyer of one of the Affordable Homes in the Project who qualifies as a "person or family of moderate income" within the meaning of California Health and Safety Code Section 50093 (i.e., households whose household income, adjusted for family size, do not exceed one hundred twenty percent (120%) of the Riverside County Median Income). g. "Owner" shall mean an Eligible Buyer to whom Covenantor has conveyed fee title to one of the Affordable Homes or any successor in interest to said Eligible Buyer to all or any portion of the Affordable Home. h. "Proposed Buyer" shall mean a person or family determined to be an Eligible Buyer, to whom the Covenantor or any successor Owner desires and proposes to Transfer an Affordable Home. i. "Purchase Housing Cost" for an Eligible Buyer purchasing an Affordable Home shall be a cost that includes all of the following associated with that Affordable Home, estimated or known as of the date of the proposed sale of the Affordable Home: (1) Principal and interest on a fixed rate mortgage loan including any rehabilitation loans, and any loan insurance fees associated therewith. (2) Property taxes and assessments. (3) Fire and casualty insurance covering replacement value of property improvements. (4) Any homeowner association fees. (5) Estimate of utilities cost. (6) Estimate of property maintenance costs. The sum of (1) through (6), inclusive, shall not exceed the Affordable Housing Cost. j. "Sales Price" shall mean all sums paid by an Eligible Buyer to Covenantor for, or in conjunction with, the acquisition of an Affordable Home, including the purchase price designated in any purchase agreement, consideration for personal property and all other costs and fees paid by the Eligible Buyer to or for the benefit of the Covenantor. k. "Transfer" shall mean (i) any sale, assignment, or transfer of an interest in an Affordable Home, including, without limitation, a fee simple interest, tenancy in common, 982/015610-0061 380889.08 a11/26/03 3 4-2 3 joint tenancy, community property, tenancy by the entireties, life estate, or other limited estate, leasehold interest or any rental of the Affordable Home, or (ii) any interest evidenced by a land contract. 1. "Unrestricted Homes" shall mean the fourteen (14) single-family homes in the Project that are not restricted for sale to Eligible Buyers. Each individual such home shall be referred to as an "Unrestricted Home." Notwithstanding the foregoing, this Declaration shall be subordinate to the lien of a first deed of trust against the Property, and shall not impair the rights of any institution or lender which is the maker of a loan secured by such first deed of trust, or such lender's assignee or successor in interest, to exercise its remedies under the deed of trust in the event of default under the first deed of trust by the Covenantor. Such remedies under the first deed of trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed in lieu of foreclosure, the affordability covenants and the transfer restrictions set forth in Sections 1, 2, 3 and 7 of this Declaration as to each lot covered by this Declaration that is the subject to the foreclosure, shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such deed of trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, said Sections 1, 2, 3 and 7 of this Declaration shall automatically terminate upon such acquisition of title, provided that (i) the Covenantee has been given written notice of a default under such first deed of trust; and (ii) the Covenantee shall not have cured the default under such first deed of trust within the thirty (30) day period provided in such notice sent to the Covenantee. Notwithstanding any other provision hereof, the nondiscrimination covenants and the maintenance requirements set forth in this Declaration shall remain in full force and effect as to the Property and any transferee. 2. Sale of Affordable Homes. Covenantor agrees that Covenantor shall sell each Affordable Home to an Eligible Buyer at an Affordable Housing Cost and that during the Affordability Period for such Affordable Home each subsequent resale thereof by the then -Owner shall be to an Eligible Buyer at an Affordable Housing Cost. Covenantor agrees that this Declaration shall be recorded against the Property concurrently with the close of escrow pursuant to which Covenantor acquired fee title to the Property. Covenantor agrees to commence to market each Affordable Home not later than the completion of construction of said Affordable Home and agrees to sell the Affordable Homes on a proportionate basis with the Unrestricted Homes. For example, Covenantor agrees to sell two (2) Affordable Homes prior to selling each Unrestricted Home. Escrow for the Transfer of an Unrestricted Home by Covenantor to a purchaser shall not close until after escrow closes for the Transfer of two (2) of the Affordable Homes. In the event Covenantor sells all of the homes in the Project, but does not sell all forty (40) of the Affordable Homes to Eligible Buyers, then within thirty (30) days after the close of escrow for the last home sold (whether such home is an Affordable Home or an Unrestricted Home), Covenantor shall be required to (i) repay to Covenantee the then -outstanding balance owed under the Note, in accordance with the terms thereunder, and, to the extent permitted by law, (ii) pay to Covenantee the sum of One Hundred Fifty Thousand Dollars ($150,000) for each 882/015610-0061 �'i 4 380889.08 a11/26/03 -4- Affordable Home that was sold to a buyer who does not qualify as an Eligible Buyer (the "Damage Amount"); provided, however, that nothing herein shall be deemed to limit Covenatee's remedy for a violation under this Section 2 to seeking monetary damages, and Covenantee shall be entitled to pursue any other equitable remedy permitted by law, including specific performance or injunctive relief, to prevent such a violation. For example, if Covenantor sells 20 of the homes in the Project as Unrestricted Homes, and 34 of the homes in the Project as Affordable Homes, then Covenantor shall pay to Covenantee, in addition to all amounts then -outstanding under the Note, the sum of $900,000 [(40 — 34) x $150,000]. THE PARTIES HERETO AGREE THAT THE DAMAGE AMOUNT CONSTITUTES A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT COVENANTEE WOULD SUFFER DUE TO THE DEFAULTS BY COVENANTOR SET FORTH IN THIS SECTION 2, CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE EXECUTION DATE HEREOF, INCLUDING THE RELATIONSHIP OF THE DAMAGE AMOUNT TO THE RANGE OF HARM TO COVENANTEE AND ACCOMPLISHMENT OF COVENANTEE'S PURPOSE OF ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE BUYERS THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE DAMAGE AMOUNT SET FORTH IN THIS SECTION 2 SHALL BE THE SOLE DAMAGES REMEDIES FOR THE DEFAULTS SET FORTH IN THIS SECTION 2, BUT NOTHING IN THIS SECTION 2 SHALL BE INTERPRETED TO LIMIT COVENANTEE'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL TO EXPLAIN THE CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT. COVENANTOR'S INITIALS: COVENANTEE'S INITIALS: Notwithstanding any of the above, nothing herein is intended to preclude the Covenantee's recovery of its attorney's fees and costs incurred to enforce this Section, as provided in Section 14. For purposes of satisfying the requirement that all of the Affordable Homes shall be occupied by Eligible Buyers: (a) an individual or family who qualifies as an Eligible Buyer at the time he or she first takes title to an Affordable Home will be deemed an Eligible Buyer as long as he or she continues to hold title to such Affordable Home even though the Eligible Buyer subsequently ceases to meet the income requirements of an Eligible Buyer, and (b) when an Owner releases title to an Affordable Home, such home will be considered as occupied by an Eligible Buyer if it is held vacant and available for such occupancy until title is transferred to another Eligible Buyer. 882/015610-0061 e J 390889.08 al1/26/03 -5- 3. Restrictions on Transfer by Sale of the Property or Any Affordable Home. a. For the duration of the Affordability Period, Covenantor, for itself and any subsequent Owner of an Affordable Home, hereby subjects the Property to certain restrictions and limits the price at which Covenantor or any Owner of an Affordable Home may sell and/or resell said Affordable Home and the persons to whom Covenantor or any Owner of an Affordable Home may sell said Affordable Home. b. COVENANTOR UNDERSTANDS THAT THE DETERMINATION OF THE SALES PRICE FOR THE AFFORDABLE HOMES CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED AND THAT THE SALES PRICE PERMITTED HEREUNDER FOR THE AFFORDABLE HOMES MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. COVENANTOR FURTHER ACKNOWLEDGES THAT IN SETTING THE SALES PRICE FOR THE AFFORDABLE HOMES, THE PRIMARY OBJECTIVE OF THE COVENANTEE AND THIS DECLARATION IS TO PROVIDE HOUSING TO ELIGIBLE BUYERS AT AN AFFORDABLE HOUSING COST. THE SALES PRICE MAY BE LESS THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS. Covenantor's Initials C. Transfer of an Affordable Home. Covenantor may Transfer an Affordable Home only in strict accordance with the provisions of this Declaration. Specifically, during the Affordability Period, Covenantor may transfer an Affordable Home (i) only to an Eligible Buyer whose assets immediately prior to the close of escrow for the Affordable Home do not exceed the limits set forth in the Asset Limitation Requirements set forth in the La Quinta Housing Program Implementation Manual, (ii) only if the Purchase Housing Cost does not exceed the Affordable Housing Cost for the Eligible Buyer; and (iii) only if the Transfer has previously been approved in writing by the Covenantee. In order to comply with this Subsection 3(c), Covenantor must calculate the Affordable Housing Cost for the Proposed Buyer of the Affordable Home in accordance with the definition set forth in Section l (c) of this Declaration. The Covenantor should contact the Covenantee housing staff to obtain assistance in determining this calculation. After calculating the Affordable Housing Cost for the Proposed Buyer, the Covenantor must ensure that the sum of the Sales Price and all costs listed in the definition of Purchase Housing Cost set forth in Section l (i) of this Declaration does not exceed an Affordable Housing Cost. The calculation of the Sales Price under this Section 3(c) is illustrated by example in the Calculation of Affordable Housing Cost. d. Notwithstanding anything to the contrary in this Section 3, at close of the escrow pursuant to which the Covenantor shall transfer an Affordable Home to an Eligible 882/015610-0061 _6_ 380889.08 al1/26/03 Buyer, the Eligible Buyer shall execute a complete set of Buyer Affordable Housing Documents as described in Section 1(d) hereof. e. The foregoing provisions will apply to every successive Transfer during the Affordability Period except that the then -Owner shall be responsible for complying with the requirements of the Covenantor as set forth in this Section 3. 4. Process to Complete Transfer by Sale of Affordable Homes. Prior to the Transfer by sale of an Affordable Home, Covenantor shall do all of the following: a. Notice to Covenantee: Covenantor shall send to the Covenantee in care of the La Quinta Housing Department (or its successor), at P.O. Box 1504, La Quinta, California 92253, the form attached hereto and incorporated herein as Exhibit "C" ("Request for Approval of Proposed Buyer") fully completed and executed by the Covenantor and the Proposed Buyer. b. (qualification of Proposed Buyer. No Transfer shall occur unless and until determination is made based on the Request for Approval of Proposed Buyer that the Proposed Buyer (i) intends to occupy the Affordable Home as the Proposed Buyer's principal residence and (ii) is an Eligible Buyer whose assets at the close of escrow for the Affordable Home do not exceed the limits set forth in the Asset Limitation Requirements, which are attached to the La Quinta Housing Program Implementation Manual as Attachment 1. Each Request for Approval of Proposed Buyer shall include a statement by the Proposed Buyer certifying its intent with regard to the occupancy of the Affordable Home and as to the truth and accuracy of all information supplied as to the Gross Income (calculated as set forth in 25 Cal. Code of Regs., Section 6914) of the Proposed Buyer. Covenantor shall certify pursuant to the Request for Approval of Proposed Buyer the information provided on said request form. Covenantor shall be entitled to rely on the information on the Request for Approval of Proposed Buyer and attachments thereto in making the determination required by this subsection 4(b) unless the Covenantor has knowledge of, or a reasonable basis for belief as to the inaccuracy or falsehood of the Request for Approval of Proposed Buyer. C. Affordable Home Sales Price. The Sales Price for the Affordable Home shall not exceed the maximum price at which the Purchase Housing Cost to be paid by the Proposed Buyer would not exceed the Affordable Housing Cost. The calculation of the Sales Price under this subsection is illustrated, by the Calculation of Affordable Housing Cost. However, in determining the Affordable Housing Cost, the family size of the Proposed Buyer shall be deemed to be 1 person in the case of a studio Affordable Home, 2 persons in the case of a 1 bedroom Affordable Home, 3 persons for a 2 bedroom Affordable Home, 4 persons for a 3 bedroom Affordable Home, or 5 persons for a 4 bedroom Affordable Home. If the actual family size of the Proposed Buyer is larger, then the actual family size shall be used. d. Certificates from Covenantor and Proposed Buyer. With respect to each initial sale of an Affordable Home, Covenantor shall submit to the Covenantee, not later than four (4) weeks prior to close of escrow on the sale of the Affordable Home, a certificate that (i) the Covenantor has made the affirmative determinations required by Section 4(b) above and (ii) 882/015610-0061 380889.08 a11/26/03 -7- the Sales Price conforms with Section 4(c) above. The Covenantor shall concurrently submit to the Covenantee the Request for Approval of Proposed Buyer and all attachments thereto and all other documents or material with regard to information required by Section 4(a) and/or (b) above, whether or not relied on by the Covenantor. Further, the Covenantor and Proposed Buyer each shall certify in writing, in a form acceptable to the Covenantee, that the Transfer shall be closed in accordance with, and only with, the terms of the sales contract and other documents submitted to and approved by the Covenantee and that all consideration delivered by the Proposed Buyer to Covenantor has been fully disclosed to the Covenantee. The written certificate shall also include a provision that, in the event a Transfer is made in violation of the terms of this Declaration or false or misleading statements are made in any documents or certificate submitted to the Covenantee for its approval of the Transfer, the Covenantee shall have the right to file an action at law or in equity to seek termination and/or rescission of the sales contract and/or declare the sale void, notwithstanding the fact that the Transfer may have closed and become final as between Covenantor and its Proposed Buyer. In the event Covenantor fails to comply with Sections 4(a) or 4(b) above, any costs, liabilities or obligations incurred by the Covenantor and its Proposed Buyer for the return of any monies paid or received or for any costs and legal expenses, shall be borne jointly and severally by the Covenantor and its Proposed Buyer and such parties shall hold the City of La Quinta ("City") and Covenantee harmless and reimburse their expenses, legal fees and costs for any action and City and/or Covenantee take in enforcing the terms of this Section 4(d). e. Execution of Buyer Affordable Housing Documents. Notwithstanding anything to the contrary in this Agreement, at close of escrow of the sale of the Affordable Home from the Covenantor to an Eligible Buyer, the Eligible Buyer shall execute a complete set of Buyer Affordable Housing Documents. The Buyer Affordable Housing Documents require, among other things, that during the Affordability Period for said Affordable Home, (i) the Affordable Home must be owner -occupied at all times and cannot be rented or leased; (ii) the Affordable Home may only be Transferred at an Affordable Housing Cost to an Eligible Buyer; and (iii) the maximum permitted sales price for the Affordable Home may be less than fair market value. f. Delivery of Documents. Upon the close of the proposed Transfer, the Covenantor shall provide the Covenantee with a certified copy of the recorded documents, a copy of the final sales contract, settlement statement, escrow instructions, all certificates required by this Section 4 and any other documents which the Covenantee may request. COVENANTOR UNDERSTANDS THAT THE DETERMINATION OF THE AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, THE TERMS OF SALE OFFERED TO AND THE ECONOMIC CIRCUMSTANCES OF THE PROPOSED BUYER AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE AFFORDABLE HOME AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. COVENANTOR FURTHER ACKNOWLEDGES THAT IN SETTING THE TRANSFER PRICE THE 882/015610-0061 380889.08 al1/26/03 -8- PRIMARY OBJECTIVE OF THE COVENANTEE AND THIS DECLARATION IS TO PROVIDE HOUSING TO ELIGIBLE BUYERS AT AN AFFORDABLE HOUSING COST. The covenant contained in this Section 4 shall run with the land and, as to each Affordable Home, shall automatically terminate and be of no further force or effect upon the Expiration Date set forth in Section 12 hereof. 5. Nondiscrimination Covenants Covenantor by and for itself, its successors 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, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall Covenantor itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property. Covenantor, and its successors and assigns, shall refrain from restricting the rental or lease (if permitted by Covenantee) or sale of the Property on the basis of race, color, religion, sex, marital status, national origin or ancestry of any person. All such deeds, leases, or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: a. In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, 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, 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." C. In contracts: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, religion, sex, marital status, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the 882/015610-0061 `-) 380889.08 a11/26/03 -9- 64.3 premises, nor shall the transferee himself of 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 of occupancy of tenants, lessees, sublessees or vendees of the premises." Nothing in this Section 5 shall be construed to authorize the rental or lease of the Property if such rental or lease is not otherwise permitted. The covenants in this paragraph 5 shall run with the land in perpetuity. 6. Maintenance of Property Covenantor shall properly maintain the buildings, landscaping and yard areas on the Property as follows: a. No improperly maintained landscaping shall be visible from public rights - of -way, including: (1) no lawns with grasses in excess of six (6) inches in height; (2) no untrimmed hedges; (3) no trees, shrubbery, lawns, and other plant life dying from lack of water or other necessary maintenance; and (4) no trees and shrubbery grown uncontrolled without proper pruning; (5) no vegetation so overgrown as to be likely to harbor rats or vermin; (6) no dead, decayed, or diseased trees, weeds, and other vegetation. b. No yard areas shall be left unmaintained, including: (1) no broken or discarded furniture, appliances, and other household equipment stored in yard areas for periods exceeding one (1) week; (2) no packing boxes, lumber, trash, dirt, and other debris stored in yards for periods exceeding one (1) week in areas visible from public property or neighboring properties; (3) no unscreened trash cans, bins, or containers stored for unreasonable periods in areas visible from public property or neighboring properties; and areas. (4) no vehicles parked or stored in areas other than approved parking C. No buildings may be left in an unmaintained condition, including: (1) no violations of state law, Uniform Codes, or City ordinances; 630 882/015610-0061 380889.08 a11/26/03 -10- (2) no condition that constitutes an unsightly appearance that detracts from the aesthetics or property value of the subject property or constitutes a private or public nuisance; (3) no broken windows or chipped, cracked, or peeling paint; and (4) no conditions constituting hazards and/or inviting trespassers or malicious mischief; and (5) no graffiti. 7. Covenantee's Right of Reverter Covenantee shall have the additional right, at its option, to reenter and take possession of the Property, or portion thereof, with all improvements thereon and revest in the Covenantee the estate theretofore conveyed to the Covenantor, if after conveyance of title to the Property and prior to issuance of the Certificate of Completion for the lot or lots in question, the Covenantor shall: a. Fail to proceed with the construction of the Project as required by the DDA (subject to any force majeure delays) for a period of ninety (90) days after written notice of such abandonment or suspension from the Covenantee subject to any force majeure delays under Section 702 of the DDA; or b. Abandon or substantially suspend construction of the improvements for a period of ninety (90) days (subject to any force majeure delays) after written notice of such abandonment or suspension from the Covenantee; or C. Transfer or suffer any involuntary transfer of the Property or any part thereof in violation of the DDA. Such right to reenter, repossess and revest to the extent provided in this Declaration shall be subordinate and subject to and be limited by and shall not defeat, render invalid or limit: (1) Any mortgage, deed of trust or other security instrument permitted by the DDA; or (2) Any rights or interest provided in the DDA for the protection of the holder of such mortgages, deeds of trust or other security instruments. Upon the revesting in the Covenantee of title to the Property or any part thereof as provided in this Section 7, the Covenantee shall, pursuant to its responsibilities under state law, use its best efforts to resell the Property or part thereof as soon and in such manner as the Covenantee shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan to a qualified and responsible party or parties (as determined by the Covenantee) who will assume the obligation of making or completing the improvements, or such other improvements in their stead, as shall be satisfactory to the Covenantee and in accordance 882/015610-0061 (� 380889.08 a 11 /26/03 _ 1 1— 6 with the uses specified for the Property or part thereof in the Redevelopment Plan. Upon such resale of the Property, the proceeds thereof shall be applied: (i) First, to reimburse the Covenantee on its own behalf or on behalf of the City for all costs and .expenses incurred by the Covenantee (excluding salaries to personnel and other items of overhead of the Covenantee or the City) in connection with the recapture, management and resale of the Property or part thereof (but less any income derived by the Covenantee from the Property or part thereof in connection with such management); all taxes, assessments and water and sewer charges with respect to the Property or part thereof (or, in the event the Property is exempt from taxation or assessment or such charges during the period of ownership, then such taxes, assessments or charges as determined by the County of Riverside assessing official as would have been payable if the Property were not so exempt); any payments made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Covenantor; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Property or part thereof; and any amounts otherwise owing the Covenantee by the Covenantor; and (ii) Second, to reimburse the Covenantor up to the amount equal to the sum of (a) the Purchase Price paid to the Covenantee by the Covenantor for the Property (or allocable to the part thereof); plus (b) the costs and expenses incurred by the Covenantor for the development of the Property and for construction of the improvements existing on the Property at the time of the reentry and repossession; less (c) any gains or income withdrawn or made by the Covenantor from the Property or the improvements thereon. Any balance remaining after such reimbursements shall be retained by the Covenantee as its property. To the extent that the rights established in this Section 7 involve a forfeiture, it must be strictly interpreted against the Covenantee, the party for whose benefit it is created. The rights established in this Section 7 are to be interpreted in light of the fact that the Covenantee will convey the Property to the Covenantor for development and not for speculation. 8. Covenants Do Not Impair Liens. No violation or breach of covenants, conditions, restrictions, provisions, or limitations contained in this Declaration shall defeat or render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security instrument. 9. Conflict with Other Laws; Severability. In the event that any provision of this Declaration is found to be contrary to applicable law, then the contrary provisions of this Declaration shall be deemed to mean those provisions which are enforceable and consistent with such laws and policies. The remaining portions of this Declaration shall be deemed modified in a manner which is consistent with the goals and intent of this Declaration to provide housing at an Affordable Housing Cost to Eligible Buyers. 882/015610-0061 380889.08 a11/26/03 —12— Every provision of this Declaration is intended to be severable. In the event any term or provision of this Declaration is declared by a court of competent jurisdiction to be unlawful, invalid or unenforceable for any reason, such determination shall not affect the balance of the terms and provisions of this Declaration, which terms and provisions shall remain binding and enforceable. 10. Covenants for Benefit of City and Covenantee. All covenants without regard to technical classification or designation shall be binding for the benefit of the Covenantee and the City and such covenants shall run in favor of the Covenantee and the City for the entire period during which such covenants shall be in force and effect, without regard to whether the Covenantee or the City is or remains an owner of any land or interest therein to which such covenants relate. The Covenantee and the City, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper legal proceedings to enforce and to cure such breach to which it or any other beneficiaries of these covenants may be entitled during the term specified for such covenants, except the covenants against discrimination which may be enforced at law or in equity at any time in perpetuity. 11. Notices. Demands and Communications. Written notices, demands and communications between the Covenantor and the Covenantee shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same - day or overnight courier service that provides a receipt showing date and time delivery, or (iii) dispatched by registered or certified mail, postage prepaid, return receipt requested, as follows: Covenantor: CP Development La Quinta, LLC 77-900 Avenue of the States Palm Desert, CA 92611 Attn: Richard Oliphant copy to: Selzer, Ealy, Hemphill & Blasdel, LLP 777 Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill and Genesis Hotel Development LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Covenantee: La Quinta Redevelopment Agency Attention: Executive Director 78-495 Calle Tampico La Quinta, CA 92253 , ) ,) 882/015610-0061 v 390889.08 al1/26/03 -13- copy to: Rutan & Tucker, LLP 611 Antoci Blvd., Suite 1400 Costa Mesa, CA 92626 Attn: A Katherine Jenson, Esq. Such addresses for notice may be changed from time to time upon notice to the other ply - Any written notice, demand or communication shall be deemed received immediately if delivered by hand or by reputable delivery service that provides a receipt with date and time of delivery and shall be deemed received on the third (3rd) calendar day from the date it is postmarked if delivered by registered or certified mail, postage prepaid, return receipt requested. 12. Expiration Date. This Declaration shall automatically terminate and be of no further force or effect as to each Affordable Home as of the termination of the Affordability Period for said Affordable Home, as described in Section 1 a hereof. 13. Effect on Unrestricted Homes. Notwithstanding anything herein to the contrary, with the exception of the nondiscrimination provisions set forth in Section 5 hereof, the provisions in this Declaration shall be effective only against the Affordable Homes, and shall not be effective or enforceable against the Unrestricted Homes. 14. Attorney's Fees. In the event any party hereto brings suit to enforce the terms of this Declaration or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees 15. Counterparts. This Declaration may be executed in counterparts each of which, when both Covenantor and Covenantee have signed this Declaration, shall be deemed an original and shall constitute one and same instrument. [end — signature page follows] 882/015610-0061 > 380889.08 al 1/26/03 -14- v t IN WITNESS WHEREOF, the Covenantee and Covenantor have caused this instrument to be executed on their behalf of their respective officers hereunto duly authorized as of the date set forth above. "COVENANTEE" THE LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic BY: Its:. Acting Executive Director Attest: Secretary (Covenantee's and Covenantor's Signature must be acknowledged by a Notary Public) "COVENANTOR" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President APPROVED AS TO FORM RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency 882/015610-0061 -15 - fj � J 380889.08 a11/26/03 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, 51 personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 -16- �-� � G 380889.08 a11/26/03 STATE OF CALIFORNIA ) )SS COUNTY OF ) On , before me, 31 personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 380889.08 al1/26/03 "17- EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [The legal description of the Property will be inserted prior to recordation of this Declaration. The term "Property" refers to that certain parcel of real property identified in the DDA as "Residential Parcel 7."] 882/015610-0061 ,-, 380889.08 a11/26/03 v EXHIBIT B CALCULATION OF AFFORDABLE HOUSING COST "Affordable Housing Cost" for the purposes of the Affordable Housing Agreement is that purchase price (inclusive of the proceeds of the Homebuyer Assistance) which would result in a monthly housing cost which is not less than twenty-eight percent (28%) of the gross income of the purchaser and does not exceed the greater of (a) the product of thirty-five percent (35%) times one hundred ten percent (110%) of Riverside County median income adjusted for family size appropriate for the unit for Eligible Buyers earning not more than one hundred ten percent (110%) of Riverside County median income, or (b) the product of thirty-five percent (35%) of the actual gross income of the household for Eligible Buyers earning more than one hundred ten percent (110%) of Riverside County median income. The following is a worksheet of how to calculate Affordable Housing Cost using the two methods set forth above: A. All Moderate Income Buyers Monthly housing costs may not exceed 1/12 of 3 5 % x 110% of Riverside County Median Income adjusted for family size appropriate for the unit. For a two- bedroom housing Unit, monthly housing costs may not exceed 1/12 of 35% x 110% of Riverside County Median Income for a family of 3 (example of Median Income is $45,900 in Riverside County pursuant to regulations issued by the California Department of Housing and Community Development in March 2003, or $1,473). Monthly Housing Costs include: a. Mortgage Principal and Interest b. Private Mortgage Insurance C. Property Taxes d. Fire/Casualty Insurance e. Property Maintenance f. Utilities Allowance g. Homeowner's Association ("HOA") Fees For example, in the following situation, for a 2 bedroom housing Unit, assuming an 8% interest rate on a conventional loan, and assuming a down payment of at least 3% of the purchase price and an average second trust deed loan from the Agency of $60,000, the maximum loan amount would be $137,880 and the maximum purchase price would be $204,000 (down payment of $6,120 + Agency Loan of $60,000 + first trust deed loan of $137,880). The foregoing is based upon the following monthly housing costs: 882/015610-0061 [' [] 380889.08 a11/26/03 6 v J a. Mortgage Principal and Interest $151005.00 b. Private Mortgage Insurance (Included in $0.00 Mortgage Interest Rate) C. Property Taxes $203.00 d. Fire/Casualty Insurance (Included in HOA) $45.00 e. Property Maintenance $20.00 f. Utilities Allowance $65.00 g. Homeowner's Association $120.00 TOTAL: $1545 8.00 B. Buyer's Income is between 110% and 120% of Riverside County Median Income Under method (b), monthly housing costs may not exceed 1/12 of 35% of the purchaser's income, instead of the formula set forth in paragraph (a) above. For example, if the purchaser is a three -person household earning $54,000 monthly housing costs may not exceed $1,575. The maximum sales price would be calculated in the same manner as in paragraph (a) above. For example, if all the other assumptions stated in that paragraph also apply herein, the purchaser's maximum loan amount would be $149,520, and the maximum purchase price, absent the Agency Second Trust Deed Loan would be $156,000. The foregoing is based upon the following monthly housing costs: a. Mortgage Principal and Interest $1,090.00 b. Private Mortgage Insurance (Included in $0.00 Mortgage Interest Rate) C. Property Taxes $225.00 d. Fire/Casualty Insurance (Included in HOA) $50.00 e. Property Maintenance $20.00 f. Utilities Allowance $65.00 g. Homeowner's Association $120.00 TOTAL: $1,570.00 882/0 i 5610-0061 -2 - ,,, ' 380899.08 al1/26/03 The foregoing are intended to be examples of how to calculate affordable housing cost, and the actual numbers will vary depending upon such factors as changes in median income, interest rates, amount of down payment, etc. Please see attached chart of Riverside County median income for moderate income purchasers. 882/015610-0061 _3 _ 6 4 380889.08 A 1 /26/03 RIVERSIDE COUNTY 2003 Affordable Housing Costs for Home Purchase Programs for Persons of Moderate Income (3) (Income figures based on Department of Housing and Community Development Income Limits dated March, 2003) 1 Person Household 2 Person Household 3 Person Household Median Median Median Income $35,700 Income $400800 Income $45,900 Monthly Affordable Monthly Monthly Annual Housing Annual Affordable Annual Affordable Income(') Cost(2) Income Housing Cost Income Housing Cost $42, 850 $1,145 $48, 950 $1, 309 $55,100 $1,473 4 Person Household 5 Person Household 6 Person Household Median Median Median Income $51,000 Income $55,100 Income $599150 Monthly Monthly Monthly Annual Affordable Annual Affordable Annual Affordable Income Housing Cost Income Housing Cost Income Housing Cost $61,200 $1,636 $66,100 $1,768 $71,000 $1,898 7 Person Household 8 Person Household Median Median Income $63,250 Income $679300 Monthly Monthly Annual Affordable Annual Affordable Income Housing Cost Income Housing Cost $75, 900 $2, 029 $80, 800 $2,159 DEFINITIONS: 1. Annual Income: Gross income from all sources for all members of the household. 2. Monthly Housing Costs: Amount of mortgage payment principal and interest, mortgage insurance, property taxes, and property insurance. 3. Moderate Income Affordable Housing Costs: Assumes affordable housing costs computed at 35% of 110% of median income; may not be less than 28% of household's gross income. 882/015610-0061 380889.08 a11/26/03 4_ 642 4 2 l,i �. EXHIBIT C REQUEST FOR APPROVAL OF PROPOSED BUYER [SEE ATTACHED PAGES] 882/015610-0061 643 380889.09 a11/26/03 REQUEST FOR APPROVAL OF PROPOSED BUYER THIS FORM MUST BE DELIVERED TO THE AGENCY BEFORE PROCEEDING WITH ANY TRANSFER OF THE PROPERTY. La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Project Officer Re: Request for Approval of Proposed Buyer To Whom It May Concern: The undersigned is the owner of real property in La Quinta, located at (the "Property"), which was developed with assistance from the Agency ("Owner"). The Owner now desires to transfer the Property and by this letter is requesting the Agency to approve the proposed buyer. 1. The Proposed Buyer is: Name: Current Address: Telephone Number: 2. The terms of the proposed transfer are (a) Sales price of $ . This sales price is based on the lesser of (i) Fair market value; or The maximum price at which the Purchase Housing Cost of the Proposed Buyer would not exceed Affordable Housing Cost. The calculation of the Sales Price under this subsection (ii) is illustrated in Exhibit `B" to the Declaration of Covenants, Conditions, and Restrictions for Property. 882/015610-0061 l 380889.08 a11/26/03 IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING INTO CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE HOUSING COST. (b) Price of any personal property being sold by the Owner to the proposed buyer: $ . (If none, so state.) (c) The price of $ to be paid by the proposed buyer for any services of Owner. (If none, so state). (d) All other amounts of money or other consideration, if any, concerning the Property or any other matter to be paid by the proposed buyer to the Owner: $ (If none, so state.) (e) Sources of payment of sales price: Sales price $ Cash down payment $ 1 st loan $ 2nd loan $ Other (describe) $ Total $ (f) The financing obtained by the proposed buyer to purchase the Property is as follows: I st Loan: Loan amount $ Monthly payments: $ Interest rate If variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: 882/015610-0061 _2_ 380889.08 a 11 /26/03 Lender: Lender's address: 2nd Loan: Loan amount: $ Monthly payments: $ Interest rate If variable interest, describe adjustment mechanism: Due date: Balloon payment amount: Points and fees: Lender: Lender's address: Other Loans: (describe, if none, so state) (g) The monthly Purchase Housing Cost to be paid by the proposed buyer: 1 st loan monthly payment: $ 2nd loan monthly payment: $ Other loans monthly payment: $ Taxes and assessments (1 / 12 of $ yearly taxes and assessments): Insurance (1 / 12 of yearly $ premium): Homeowner's dues: $ Total: $ 882/015610-0061 380889.08 al1/26/03 -3- 6 3. The proposed buyer represents, warrants and covenants the following: (a) The Property will be the principal residence of the proposed buyer. (b) The combined maximum annual income for all household members of the proposed buyer is $ . (This figure must include all sources of income.) (c) The proposed buyer will deliver to the Agency a signed financial statement on a form acceptable to the Agency. 4. The proposed buyer's household consists of the following persons who will reside in the Property: Adults (18 or over) - [name of each] : Minors (under 18) [name of each] : 5. The proposed buyer must submit to the Owner, on a form available from the Owner, an income certification so the Owner may determine if the proposed buyer is an Eligible Buyer. 6. A true and correct copy of the proposed buyer's most recent tax return to the U.S. Internal Revenue Service is attached hereto. 7. A true and correct copy of the purchase and sale or other agreement between the Owner and the proposed buyer is attached hereto. 882/015610-0061 ►'i 380889.08 al1/26/03 "4" 14 7 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. OWNER: Date signature signature print name print name street address telephone city state zip code PROPOSED BUYER: Date signature signature print name print name street address telephone city state zip code 882/015610-0061 380889.08 a11/26/03 -5- v V Owner's Certification Based on the Proposed Buyer's Certificate above, and all documents attached hereto, Owner hereby certifies that: (1) Proposed Buyer is an Eligible Buyer; and (2) The monthly Purchase Housing Cost to be paid by the Proposed Buyer shall not exceed the monthly Affordable Housing Cost. [Capitalized terms used above are defined in the Agreement to which this certificate is attached unless otherwise provided herein.] OWNER: [Name] Date: 882/015610-0061 380889.08 al1/26/03 -6- ATTACHMENT NO. 16 RELEASE OF CONSTRUCTION COVENANTS [See Following Pages] 882/015610-0061 U 380889.08 a11/26/03 RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: CP DEVELOPMENT LA QUINTA, LLC 77-900 Avenue of the States Palm Desert, CA 92211 _ Attn: Richard Oliphant This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 RELEASE OF CONSTRUCTION COVENANTS THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), in favor of CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company (the "Developer"), as of , RECITALS A. The Agency and the Developer have entered into that certain Disposition and Development Agreement (the "DDA") dated , 2003 concerning the redevelopment of certain real property situated in the City of La Quinta, California, a portion of which is more fully described in Exhibit "A" attached hereto and made a part hereof (the "Property") B. As referenced in Section 509 of the DDA, the Agency is required to furnish the Developer or its successors with a Release of Construction Covenants upon Developer's completion of construction of the [Insert applicable Phase of Development, as that term is described in Section 310 of the DDA] (as defined in Section 100 of the DDA), which Release is required to be in such form as to permit it to be recorded in the Recorder's office of Riverside County. This Release is conclusive determination of satisfactory completion of the construction and development required by the DDA. C. The Agency has conclusively determined that such construction and development has been satisfactorily completed. NOW, THEREFORE, the Agency hereby certifies as follows: 1. The [Insert applicable Phase of Development, as that term is described in Section 310 of the DDA]to be constructed by the Developer has been fully and satisfactorily completed in conformance with the DDA. Any operating requirements and all use, maintenance or nondiscrimination covenants contained in the DDA and other documents executed and recorded pursuant to the DDA shall remain in effect and enforceable according to their terms. 882/015610-0061 380889.08 a11/26/03 6J-1 2. This Release of Construction Covenants does not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or any insurer of a mortgage security m0hey loaned to finance the work of construction if improvements and development of the Property, or any part hereof. 3. This Release of Construction Covenants does not denote completion of any work required to be completed, other than on the Property. 4. This Release of Construction Covenants is not a notice of completion as referred to in Section 3093 of the California Civil Code. 5. Nothing contained in this instrument shall modify in any other way any other provisions of the DDA. 882/015610-0061 380889.08 al1/26/03 -2- U13 IN WITNESS WHEREOF, the Agency has executed this Release as of the date set forth above. ATTEST: Agency Secretary LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: APPROVED BY DEVELOPER: CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President 882/015610-0061 V v 390889.09 al1/26/03 -3- EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY [TO BE ATTACHED] 882/015610-0061 380889.08 a11/26/03 -4- V V Z STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0061 380889.08 al 1/26/03 -5- ;J ATTACHMENT NO. 17 PRELIMINARY DEVELOPMENT BUDGET [See attached individual preliminary development budgets for each of the (i) Sanctuary Villas Development, (ii) Suites Hotel, (iii) Casitas Development, (iv) Parcel 5 Residential Development and Parcel 7 Residential Development, (iv) Medical Office/Surgical Facility, (v) Parcel 1 Restaurant and Parcel 2 Restaurant, and (vi) Seeley Drive] 882/015610-0061 380889.08 al 1/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Sanctuary Villas Development LAND COST Purchase Price at FMV Property Transfer Tax HARD COSTS Building Costs Parking On/Off site Improvements Contingency SOFT COSTS Architects & Consultants General/Administrative Costs Other Fees HPO & Warranty Marketing Property Tax Condo Documentation Financing & Inspections Insurance Feasibility/Appraisal Fees, Permits, Connections Post Construction / Strata Fee Contingency Total INTEREST COSTS Interest Costs Contingency at 10% TOTAL PROJECT COSTS Amount $ 1,003,622 $ 1,003,622 $ 1,003,622 $ 4,900,500 $ 162,500 1,087,347 310,000 $ 6,460,347 $ 294,030 625,450 100,000 39,000 540,800 10,036 36,400 50,000 208,000 25,000 1543514 20,000 110,000 $ 2,213,230 $ 402,000 40,200 $ 442,200 $ 10,119,400 $ 6,460,347 $ 2,213,230 $ 442,200 $ 10,119,400 882/015610-0061 2_ ,, r�1 380889.08 al1/26/03 _6 PRELIMINARY DEVELOPMENT BUDGET FOR Suites Hotel 1. CONSTRUCTION $7,117,947 2. ARCHITECTURE, ENGINEERING, DESIGN $162,120 3. CITY FEES AND DEVELOPMENT COST CHARGES $681,067 4. FURNITURE, FIXTURES AND EQUIPMENT $1,408,000 5. PROPERTY EXPENSES $142,359 6. GENERAL AND ADMINISTRATIVE COST $1,226,000 7. PRE -OPENING AND OPENING EXPENSES $134,000 8. FINANCING $890,125 9. SUBTOTAL INCLUDING CONTINGENCY $11,761,618 10. CASH FLOW SHORT FALL RESERVE FUND (WORKING CAPITAL AND GENERAL CONTINGENCY) $1,993,233 11. TOTAL PROJECT DEVELOPMENT COSTS $13,754,851 12. LAND COST $0 13. TOTAL PROJECT COSTS $13,754,851 882/015610-0061 390889.08 a11/26/03 -3- Q v PRELIMINARY DEVELOPMENT BUDGET FOR Casitas Development LAND COST Per DDA Property Transfer Tax HARD COSTS Building Costs On/Off site Improvements Surface Parking Contingency SOFT COSTS Architects & Consultants General and Administrative Costs Permits and Fees Other fees HPO & Warranty Marketing Property Tax Condo Documentation, Legal & Survey Financing & Inspections Insurance Appraisal Administration Fees, Permits, Connections Post Construction / Condo Fee Contingency Total FURNITURE FIXTURE AND EQUITYPMENT INTEREST COSTS Interest Costs Contingency at 10% Total TOTAL PROJECT COSTS $ 2,620,134 $ 50,403 11,631,880 2,169,373 613,600 1,200,000 $ 1,447,446 1,624,000 693,636 100,000 198,000 1,645,616 57,667 1,400 100,000 1,056,000 25,000 10,000 50,000 20,000 320,000 $ 1,508,625 150,863 $ 29670,537 $ 15,614,853 $ 7,3481765 $ 2,840,000 $ 11659,488 $ 301133,642 882/015610-0061 380889.08 a11/26/03 -4- 6 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Costs Number of Units Land Site Improvements Architectural, Structural, T24 Civil/ Soil Engineering House Construction Landscape Front & Common Pools & BBQ Area Developer/ Builder, Overhead Site Supervision Permits & Fees Fin. Costs (Pts, Int., misc.) Legal, Insurance, HOA, Taxes Contingency & Marketing Total Hard Costs Soft Costs -Comm. & Closing Sales Total Estimated Gross Sales Estimated Project Profit Project Summary In 000's Price Per Unit 67 2,550 38.1 1,562 23.3 150 2.2 195 249 6,644 99.2 380 5.7 155 2.3 600 9.0 150 2.2 1,022 15.3 751 11.2 285 4.3 446 6.7 14,890 222.4 525 7.8 Total Costs 15,415 230.2 17,485 261.0 2,070 11.84% 892/015610-0061 �� v 390889.08 a11/26/03 -5- PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Preliminary Proforma Costs Number of Units Land Site Improvements Architectural, Structural, T24 Civil/ Soil Engineering House Construction Landscape Front & Common Pools & BBQ Area Developer/ Builder, Overhead Site Supervision Permits & Fees Fin. Costs (Pts, Int., misc.) Legal, Insurance, HOA Contingency & Marketing Total Hard Costs Maximum City Assist In 000's 1,562 195 380 155 600 151 750 446 4,239 Price Per Unit 67 0.0 23.3 0.0 2.9 5.7 2.3 9.0 2.3 0.0 11.2 0.0 6.7 63.4 882/015610-0061 -A 380889.08 al 1/26/03 -6- 6 61 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development Perimeter Lots Square Footage 1430 1672 1778 Total Costs In 000's Price Per In 000's Price Per In 000's Price Per In 000's Price Per Unit Unit Unit Unit Number of Units 9 10 6 25 Land 324 36.0 360 36.0 216 36.0 900 36.0 Site Improvements 210 23.3 233 23.3 140 23.3 583 23.3 Architectural, Structural,T24 18 2.0 20 2.0 12 2.0 50 2.0 Civil/ Soil Engineering 26 2.9 29 2.9 18 3.0 73 2.9 House Construction 708 78.7 886 88.6 555 92.5 2,149 86.0 Landscape Front & 51 5.7 57 5.7 34 5.7 142 5.7 Common Pools & BBQ Area 21 2.3 23 2.3 14 2.3 58 2.3 Developer/ Builder, 81 9.0 90 9.0 54 9.0 224 9.0 Overhead Site Supervision 20 2.2 22 2.2 13 2.2 56 2.2 Permits & Fees 125 13.9 152 15.2 95 15.8 371 14.9 Fin. Costs (Pts, Int., misc.) 101 11.2 112 11.2 67 11.2 280 11.2 Legal, Insurance, HOA, 38 4.2 42 4.2 25 4.2 106 4.2 Taxes Contingency & Marketing 60 6.7 66 6.6 40 6.7 166 6.6 Total Hard Costs 1,783 198.1 2,092 209.2 1,283 213.9 5,158 206.3 Soft Costs -Comm. & Closing 63 7.0 74 7.4 45 7.5 182 7.3 Total Costs 1,846 205.1 2,166 216.6 1,328 221.4 5,340 213.6 Sales Total Estimated Gross Sales 2,097 233.0 2,460 246.0 1,506 251.0 6,063 242.5 Estimated Project Profit 251 11.98%294 11.95% 178 11.84% 723 11.92% 882/015610-0061 662 380889.08 a11/26/03 -7- PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Home Purchase - Price per 163.00 147.00 141.00 Sq ft Purchase Price 233 246 251 Down Payment & Closing - 12 12 13 5% 1 st Trust Deed 181 194 198 Silent 2nd Trust Deed 40 40 40 Monthly Mortgage Payment 30 year fixed 5.50% - P & 1,028.00 1,102.00 1,125.00 Property Taxes - 1.125 of 218.00 231.00 235.00 Value Estimated HOA 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 $1,646.0 $1,733.0 $1,760.0 0 0 0 Percentage of 61.200 32.27% 33.98% 34.51 % annual income Purchase Price 233 246 251 Down Payment & Closing - 12 12 13 5% 1 st Trust Deed 171 184 188 Silent 2nd Trust Deed a 50 50 50 Monthly Mortgage Payment 30 year fixed 5.50% - P & 1 971.00 1,045.00 1,068.00 Property Taxes -1.125 of 218.00 231.00 235.00 Value Estimated HOA 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 $1,589.0 $1,676.0 $1,703.0 0 0 0 Percentage of 61,200 31.16% 32.86% 33.39% annual income 882/015610-0061 —g- 380889.08 a11/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel I Residential Development (Cont.) Purchase Price 233 246 251 Down Payment & Closing - 12 12 13 5% 1 st Trust Deed 158 171 175 Silent 2nd Trust Deed 63 63 63 Monthly Mortgage Payment 30 year fixed 5.50% - P & 1 897.00 971.00 994.00 Property Taxes - 1.125 of 218.00 231.00 235.00 Value Estimated HOA 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 $1,515.0 $1,602.0 $1,629.0 0 0 0 Percentage of 61,200 29.71 % 31.41 % 31.94% annual income 664 882/015610-0061 380889.08 a11/26/03 -9- PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Purchase Price 233 246 251 Down Payment & Closing - 12 12 13 5% 1st Trust Deed 141 154 158 Silent 2nd Trust Deed 80 80 80 Monthly Mortgage Payment 30 year fixed 5.50% - P & 801.00 875.00 897.00 Property Taxes - 1.125 of 218.00 231.00 235.00 Value Estimated HOA 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 $1,419.0 $1,506.0 $1,532.0 0 0 0 Percentage of 61,200 27.82% 29.53% 30.04% annual income Purchase Price 233 246 251 Down Payment & Closing - 12 12 13 5% 1 st Trust Deed 121 134 138 Silent 2nd Trust Deed 100 100 100 Monthly Mortgage Payment 30 year fixed 5.50% - P & 687.00 761.00 784.00 Property Taxes - 1.125 of 218.00 231.00 235.00 Value Estimated HOA 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 $1,305.0 $1,392.0 $1,419.0 0 0 0 Percentage of 61,200 25.59% 27.29% 27.82% annual income 882/015610-0061 6 v �� 380889.08 al 1/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Courtyard duster Square Footage 1270 1295 1400 1520 Total Costs In 000's Price In 000's Price In 000's Price In 000's Price In Price Per Per Per Per 000's Per Unit Unit Unit Unit Unit Number of Units 7 5 11 6 29 Land 241 34.4 172 34.4 379 34.5 207 34.5 1,000 Site Improvements 163 23.3 117 23.4 256 23.3 140 23.3 676 Architectural, 12 1.7 9 1.8 19 1.7 10 1.7 50 Structural,T24 Civil/ Soil Engineering 20 2.9 14 2.8 32 2.9 17 2.8 84 House Construction 471 67.3 343 68.6 785 71.4 456 76.0 2,055 Landscape Front & 40 5.7 28 5.6 62 5.6 34 5.7 164 Common Pools & BBQ Area 16 2.3 12 2.4 25 2.3 14 2.3 67 Developer/ Builder, 63 9.0 45 9.0 99 9.0 54 9.0 260 Overhead Site Supervision 16 2.3 11 2.2 25 2.3 13 2.2 65 Permits & Fees 91 13.0 66 13.1 151 13.7 86 14.4 393 Fin. Costs (Pts, Int., misc.) 78 11.1 56 11.2 123 11.2 67 11.2 325 Legal, Insurance, HOA, 30 4.3 21 4.2 47 4.3 25 4.2 123 Taxes Contingency & Marketing 47 6.7 33 6.6 73 6.6 40 6.7 193 Total Hard Costs 1,288 184.0 Soft Costs -Comm. & 45 6.4 Closing 927 185.3 2,076 188.8 33 6.6 73 6.6 34.5 23.3 1.7 2.9 70.9 5.7 2.3 9.0 2.2 13.6 11.2 4.2 6.7 1,163 194.0 5,455 188.1 41 6.8 192 6.6 Total Costs 1,333 190.4 960 191.9 2,149 195.4 1,204 200.8 5,647 194.7 882/015610-0061 -1 1tj - 380889.08 a11/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Sales Total Estimated Gross 1,512 216.0 1,090 218.0 2,431 221.0 1,368 228.0 6,401 220.7 Sales Estimated Project Profit 179 11.85% 130 11.96% 282 11.61 % 164 11.98% 754 11.77% Home Purchase - Price 170.00 168.00 158.00 150.00 per Sq ft Purchase Price 216 218 221 228 Down Payment & Closing 11 11 11 11 - 5% 1 st Trust Deed 165 167 170 177 Silent 2nd Trust Deed 40 40 40 40 Monthly Mortgage Payment 30 year fixed 5.50% - P 937.00 949.00 966.00 1,005.00 &I Property Taxes -1.125 203.00 204.00 208.00 214.00 of Value Estimated HOA 150.00 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 250.00 $1,540.0 $1,553.0 $1,574.0 $1,619.0 0 0 0 0 Percentage of 61,200 30.20% 30.45% 30.86% 31.75% annual income Purchase Price 216 218 221 228 Down Payment & Closing 11 11 11 11 - 5% 1 st Trust Deed 155 157 160 167 Silent 2nd Trust Deed 50 50 50 50 Monthly Mortgage Payment 30 year fixed 5.50% - P 880.00 892.00 909.00 949.00 &I Property Taxes -1.125 203.00 204.00 208.00 214.00 of Value Estimated HOA 150.00 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 250.00 $1,483.0 $1,496.0 $1,517.0 $1,563.0 0 0 0 0 Percentage of 61,200 29.08% 29.33% 29.75% 30.65% annual income 882/015610-0061 380889.08 al 1/26/03 -12- 661 11 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel ? Residential Development (Cont.) Purchase Price 216 218 221 228 Down Payment & Closing 11 11 11 11 - 5% 1 st Trust Deed 142 144 147 154 Silent 2nd Trust Deed 63 63 63 63 Monthly Mortgage Payment 30 year fixed 5.50% - P 807.00 .818.00 835.00 875.00 &I Property Taxes - 1.125 203.00 204.00 208.00 214.00 of Value Estimated HOA 150.00 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 250.00 $1,410.0 $1,422.0 $1,443.0 $1,489.0 0 0 0 0 Percentage of 61,200 27.65% 27.88% 28.29% 29.20% annual income 380889.08 a 1/26/03 -13 - 668 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Purchase Price 216 218 221 228 Down Payment & Closing 11 11 11 11 - 5% 1 st Trust Deed 125 127 130 137 Silent 2nd Trust Deed 80 80 80 80 Monthly Mortgage Payment 30 year fixed 5.50% - P 710.00 721.00 738.00 778.00 &I Property Taxes -1.125 203.00 204.00 208.00 214.00 of Value Estimated HOA 150.00 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 250.00 $1,313.0 $1,325.0 $1,346.0 $1,392.0 0 0 0 0 Percentage of 61,200 25.75% 25.98% 26.39% 27.29% annual income Purchase Price 216 218 221 228 Down Payment & Closing 11 11 11 11 -5% 1 st Trust Deed 105 107 110 117 Silent 2nd Trust Deed 100 100 100 100 Monthly Mortgage Payment 30 year fixed 5.50% - P 596.00 608.00 625.00 665.00 &I Property Taxes - 1.125 203.00 204.00 208.00 214.00 of Value Estimated HOA 150.00 150.00 150.00 150.00 Estimated Utilities 250.00 250.00 250.00 250.00 $1,199.0 $1,212.0 $1,233.0 $1,279.0 0 0 0 0 Percentage of 61,200 23.51 % 23.76% 24.18% 25.08% annual income 882/015610-0061 -14- L+ 380889.08 a11/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) Square Footage Costs Number of Units Land Site Improvements Architectural, Structural,T24 Civil/ Soil Engineering House Construction Landscape Front & Common Pools & BBQ Area Developer/ Builder, Overhead Site Supervision Permits & Fees Fin. Costs (Pts, Int., misc.) Legal, Insurance, HOA, Taxes Contingency & Marketing Total Hard Costs Soft Costs -Comm. & Closing Courtyard Cluster Villas 2180 2560 In 000's Price Per In 000's Price Per Unit Unit 5 3 250 50.0 150 50.0 117 23.4 70 23.3 19 3.8 12 4.0 15 3.0 9 3.0 828 165.6 576 192.0 28 5.6 17 5.7 12 2.4 7 2.3 45 9.0 27 9.0 11 2.2 7 2.3 90 18.0 60 20.1 56 11.2 34 11.3 21 4.2 13 4.3 33 6.6 20 6.7 1,525 305.0 1,002 334.0 54 10.8 35 11.7 2800 Total In 000's Price Per In 000's Price Per Unit Unit 5 13 250 50.0 650 50.0 117 23.4 303 23.3 19 3.8 50 3.8 15 3.0 38 2.9 1,036 207.2 2,440 187.7 28 5.6 74 5.7 12 2.4 30 2.3 45 9.0 116 8.9 11 2.2 29 2.2 107 21.4 257 19.8 56 11.2 146 11.2 21 4.2 55 4.2 33 6.6 87 6.7 1,750 350.0 4,275 328.9 62 12.4 151 11.6 Total Costs 1,579 315.8 1,037 345.7 1,812 362.4 4,426 340.5 Sales Total Estimated Gross Sales 1,790 358.0 1,176 392.0 2,055 411.0 5,021 386.2 Estimated Project Profit 211 11.79% 139 11.80% 243 11.82% 595 11.85% Home Purchase - Price per Sq ft 164.00 153.00 147.00 Purchase Price Down Payment & Closing - 5% 1 st Trust Deed Silent 2nd Trust Deed Monthly Mortgage Payment 30 year fixed 5.50% - P & I Property Taxes - 1.125 of Value Estimated HOA Estimated Utilities 358 392 411 18 20 21 340 372 390 0 0 0 1,931.00 2,113.00 2,215.00 336.00 368.00 385.00 150.00 150.00 150.00 250.00 250.00 250.00 $2,667.00 $2,881.00 $3,000.00 882/015610-0061 380889.08 al1/26/03 -15- 670 ►'`i0 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.) PROGRAM HOMES Perimeter Lots Courtyard Cluster Total Square Footage 1430 1672 1778 1270 1295 1400 1520 Program Units 7 7 4 5 4 7 6 40 Bedrooms per Unit 3 3 3 3 3 3 4 Costs Number of Units Land 252 252 144 172 138 242 207 1407 Site Improvements 163 163 93 117 94 163 140 933 Architectural, Structural,T24 14 14 8 9 7 12 10 74 Civil/ Soil Engineering 20 20 12 15 11 20 17 115 House Construction 551 620 370 337 274 500 456 3108 Landscape Front & Common 40 40 23 29 22 39 34 227 Pools & BBQ Area 16 16 9 12 10 16 14 93 Developer/ Builder, Overhead 63 63 36 45 36 63 54 360 Site Supervision 15 15 9 12 9 16 13 89 Permits & Fees 97 106 63 65 52 96 86 565 Fin. Costs (Pts, Int., misc.) 78 78 45 56 45 78 67 447 Legal, Insurance, HOA, Taxes 29 29 17 22 17 30 25 169 Contingency & Marketing 47 46 27 34 26 46 40 266 Total Hard Costs 1385 1462 856 925 741 1321 1163 7853 671 882/015610-0061 380889.08 al 1/26/03 -16- PRELIMINARY DEVELOPMENT BUDGET FOR Medical Office/Surgical Facility Medical Building #1 Medical Building #2 Medical Building #3 Shell Costs Basic Interior Allowance Sub -Total Direct Costs 40,000 $ 86.13 $ 3,445,200 40,000 $ 86.13 $ 3,445,200 40,000 $ 86.13 $ 3,445,200 $ 10,335,600 120,000 $ 20.89 120,000 $ 107.02 Site Improvements Grading, Paving, Curbs $ 934,960 Landscaping $ 360,000 Off -Site Development Costs $ 3,004,677 Other Site Improvements $ 320,000 Sub -Total Site Improvements TOTAL DIRECT AND SITE IMPROVEMENTS INDIRECT COSTS Pre -Development 1 % $ 224,500 Arch, Engineering & Consultants 8% $ 1,217,466 General Requirements 12% $ 2,095,492 Permit and Fees (Shell Building Only) 9% $ 1,658,292 Development Fees/Leasing Fees 9% $ 1,500,000 Furnishings NIC Contingency 8% $ 1,396,995 TOTAL DIRECT AND INDIRECT COSTS $ 200.94 LAND VALUE 9.22ACRES $ 5.00 ESTIMATED COST VALUE (SAY) $ 2,507,200 $ 12, 842, 800 $ 4,619,637 $ 17,462,437 $ 6,650,780 $ 24,113,216 $ 2,008,116 $ 26,121, 332 882/015610-0061 -1.7- 672 380889.08 al1/26/03 PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 1 Restaurant Fine Dinning Restaurant - Shell Costs 6,000 $ 100.00 Basic Interior Allowance 6,000 $ 110.00 Sub -Total Direct Costs 6,000 $ 210.00 Site Improvements Grading, Paving, Curbs $ 200,000 Landscaping $ 75,000 Other Site Improvements $ 90,000 Sub -Total Site Improvements TOTAL DIRECT AND SITE IMPROVEMENTS INDIRECT COSTS Pre -Development 8.00% $ 130,000 Arch, Engineering & Consultants 8.00% $ 130,000 General Requirements 12.00% $ 195,000 Permit and Fees (Shell Building Only) 5.00% $ 81,250 Development Fees/Leasing Fees 5.00% $ 81,250 Furnishings NIC Financing Costs Lender Fees- Const. & Take out 1.50% $ 30,000 Brokerage Fees 2.50% $ 50,000 Construction Interest Rate Years Terms 60%7.00% 1 $ 84,000 Contingency 5.00% $ 81,250 TOTAL DIRECT AND INDIRECT COSTS $ 414.63 LAND VALUE 0.92ACRES $ 5.00 ESTIMATED COST VALUE (SAY) $ 600,000 $ 660,000 $ 1,260,000 $ 365,000 $ 1,625, 000 $ 862,750 $ 2,487, 750 $ 200,376 $ 2,688,126 882/015610-0061 380889.08 a11/26/03 - 1 g- PRELIMINARY DEVELOPMENT BUDGET FOR Parcel 13 Restaurant FAMILY STYLE RESTAURANT Shell Costs 7,000 $ 100.00 Basic Interior Allowance 7,000 $ 90.00 Sub -Total Direct Costs 7,000 $ 190.00 Site Improvements Grading, Paving, Curbs $ 250,000 Landscaping $ 75,000 Other Site Improvements $ 90,000 Sub -Total Site Improvements TOTAL DIRECT AND SITE IMPROVEMENTS INDIRECT COSTS Pre -Development Arch, Engineering & Consultants General Requirements Permit and Fees (Shell Building Only) Development Fees/Leasing Fees Furnishings Financing Costs Lender Fees- Const. & Take out Brokerage Fees Construction Interest Rate Years Terms 60% 7.00% 1 Contingency 8.00% $ 8.00% $ 12.00% $ 5.00% $ 5.00% $ NIC 1.50% $ 2.50% $ 139,600 139,600 209,400 87,250 87,250 30,000 50,000 $ 84,000 5.00% $ 87,250 TOTAL DIRECT AND INDIRECT COSTS $ 379.91 LAND VALUE 1.12ACRES $ 5.00 ESTIMATED COST VALUE (SAY) $ 700,000 $ 630,000 $ 1,330,000 $ 415,000 $ 1,745,000 $ 914,350 $ 2,659, 350 $ 243,936 $ 2,903,286 286 ............................ ... ..... 882/015610-0061 390889.08 a11/26/03 -19- ATTACHMENT NO. 18 FORM OF BUYER AFFORDABLE HOUSING DOCUMENTS [See Following Pages] 1. Buyer Affordable Housing Agreement (Document No. 398366) 2. Buyer Memorandum Re Option to Purchase (Document No. 398363) 3. Buyer Promissory Note Secured by Deed of Trust (Document No. 398344) 4. Buyer Deed of Trust with Assignment of Rents and Rider to Deed of Trust attached hereto (Document No. 398353) 5. Buyer Borrower Disclosure Statement (Document No. 398359) 882/015610-0061 675 380889.08 a11/26/03 ATTACHMENT NO. 19 AFFORDABLE HOUSING COST "Affordable Housing Cost" for the purposes of the Affordable Housing Agreement is that purchase price (inclusive of the proceeds of the Homebuyer Assistance) which would result in a monthly housing cost which is not less than twenty-eight percent (28%) of the gross income of the purchaser and does not exceed the greater of (a) the product of thirty-five percent (35%) times one hundred ten percent (110%) of Riverside County median income adjusted for family size appropriate for the unit for Eligible Buyers earning not more than one hundred ten percent (110%) of Riverside County median income, or (b) the product of thirty-five percent (35%) of the actual gross income of the household for Eligible Buyers earning more than one hundred ten percent (110%) of Riverside County median income. The following is a worksheet of how to calculate Affordable Housing Cost using the two methods set forth above: A. All Moderate Income Buyers Monthly housing costs may not exceed 1/12 of 35% x 110% of Riverside County Median Income adjusted for family size appropriate for the unit. For a two- bedroom housing Unit, monthly housing costs may not exceed 1 / 12 of 3 5 % x 110% of Riverside County Median Income for a family of 3 (example of Median Income is $45,900 in Riverside County pursuant to regulations issued by the California Department of Housing and Community Development in March 2003, or $1,473). Monthly Housing Costs include: a. Mortgage Principal and Interest b. Private Mortgage Insurance C. Property Taxes d. Fire/Casualty Insurance e. Property Maintenance f. Utilities Allowance g. Homeowner's Association ("HOA") Fees For example, in the following situation, for a 2 bedroom housing Unit, assuming an 8% interest rate on a conventional loan, and assuming a down payment of at least 3% of the purchase price and an average second trust deed loan from the Agency of $60,000, the maximum loan amount would be $137,880 and the maximum purchase price would be $204,000 (down payment of $6,120 + Agency Loan of $60,000 + first trust deed loan of $137,880). The foregoing is based upon the following monthly housing costs: 882/015610-0061 676 380889.08 a11/26/03 a. Mortgage Principal and Interest $13,005.00 b. Private Mortgage Insurance (Included in $0.00 Mortgage Interest Rate) C. Property Taxes $203.00 d. Fire/Casualty Insurance (Included in HOA) $45.00 e. Property Maintenance $20.00 f. Utilities Allowance $65.00 g. Homeowner's Association $120.00 TOTAL: $1,458.00 B. Buyer's Income is between 110% and 120% of Riverside County Median Income Under method (b), monthly housing costs may not exceed 1/12 of 35% of the purchaser's income, instead of the formula set forth in paragraph (a) above. For example, if the purchaser is a three -person household earning $54,000 monthly housing costs may not exceed $1,575. The maximum sales price would be calculated in the same manner as in paragraph (a) above. For example, if all the other assumptions stated in that paragraph also apply herein, the purchaser's maximum loan amount would be $149,520, and the maximum purchase price, absent the Agency Second Trust Deed Loan would be $156,000. The foregoing is based upon the following monthly housing costs: a. Mortgage Principal and Interest $1,090.00 b. Private Mortgage Insurance (Included in $0.00 Mortgage Interest Rate) C. Property Taxes $225.00 d. Fire/Casualty Insurance (Included in HOA) $50.00 e. Property Maintenance $20.00 f. Utilities Allowance $65.00 g. Homeowner's Association $120.00 TOTAL: $1,570.00 882/015610-0061 �� 380889.08 a11/26/03 —2— The foregoing are intended to be examples of how to calculate affordable housing cost, and the actual numbers will vary depending upon such factors as changes in median income, interest rates, amount of down payment, etc. Please see attached chart of Riverside County median income for moderate income purchasers. 882/015610-0061 380889.08 al1/26/03 -3- RIVERSIDE COUNTY 2003 Affordable Housing Costs for Home Purchase Programs for Persons of Moderate Income(3) (Income figures based on Department of Housing and Community Development Income Limits dated March, 2003) 1 Person Household 2 Person Household 3 Person Household Median Median Median Income $35,700 Income $40,800 Income $45,900 Monthly Affordable Monthly Monthly Annual Housing Annual Affordable Annual Affordable Income(') Cost(') Income Housing Cost Income Housing Cost $42,850 $1,145 $48,950 $1,309 $55,100 $11473 4 Person Household 5 Person Household 6 Person Household Median Median Median Income $51,000 Income $55,100 Income $59,160 Monthly Monthly Monthly Annual Affordable Annual Affordable Annual Affordable Income Housing Cost Income Housing Cost Income Housin Cost $611200 $1,636 $66,100 $1,768 $71,000 $1,898 7 Person Household 8 Person Household Median Median Income $63,250 Income $679300 Monthly Monthly Annual Affordable Annual Affordable Income Housing Cost Income Housing Cost $75,900 $2,029 $80,800 $2,159 DEFINITIONS: 1. Annual Income: Gross income from all sources for all members of the household. 2. Monthly Housing Costs: Amount of mortgage payment principal and interest, mortgage insurance, property taxes, and property insurance. 3. Moderate Income Affordable Housing Costs: Assumes affordable housing costs computed at 35% of 110% of median income; may not be less than 28% of household's gross income. 882/015610-0061 380889.08 a11/26/03 -4- 679 9 ATTACHMENT NO.20 SCHEDULE OF PERFORMANCE' [See attached individual schedules for each of the (i) Sanctuary Villas Development, (ii) Suites Hotel and Casitas Development, (iii) Parcel 5 Residential Development and Parcel 7 Residential Development, (iv) Medical Office/Surgical Facility, and (v) Parcel 1 Restaurant and Parcel 2 Restaurant] I All days are calendar days in this Schedule of Performance. 680 882/015610-0061 380889.08 a11/26/03 SCHEDULE OF PERFORMANCE FOR SANCTUARY VILLAS DEVELOPMENT (ALL PHASES OF DEVELOPMENT) Item of Performance Time for Completion 1. Developer execution of DDA. Within 7 days after Developer and Agency approve final draft. 2. Developer's submission of complete Site Within 270 days after Effective Date of DDA. Development Permit Application "SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan* • Tract Map* 3. Review of SDPA by all applicable City** Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submission of SDPA. 4. Agency response to Developer as to City Within 7 days after receipt of final comments, but no comments on SDPA. later than 30 days after Developer's submission of SDPA. 5. Developer and City responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 6. Agency publishes Notice of Public Hearing Within 10 days after City responds to Developer's before the Planning Commission. comments in the preceding section. 7. Planning Commission Public Hearing and Approximately 10 days after first publication. consideration of SDPA and Tract Map. 8 City Council consideration of SDPA and Within 21 days after Planning Commission approval Tract Map.* (if required). 9. City's issuance of SDPA, Tract Map (if Within 7 days after approval by both City Council and a licable) and conditions. Planning Commission (as applicable). 10A Developer's preparation of final grading Within 180 days after City's issuance of SDPA and plans and Design Development Drawings Tract Map (if applicable). for Sanctuary Villas Parcel 8. lOB Developer's preparation of final grading Within 180 days after Developer's completion of plans and Design Development Drawings construction of Sanctuary Villas Parcel 8. for Sanctuary Villas Parcel 9. 11A. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Parcel Design Development Drawings for Parcel 8 Sanctuary 8 Sanctuary Villas Component Villas Component. 11A. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Parcel Design Development Drawings for Parcel 9 Sanctuary 9 Sanctuary Villas Component I Villas Component. 882/015610-0061 380889.08 al1/26/03 -2- 81. Item of Performance Time for Completion 12. Agency review and approval, approval with Within 30 days after Agency's receipt of applicable conditions, or denial of Developer's evidence of financing. evidence of financing for Parcel 8 Sanctuary Villas Component and Parcel 9 Sanctuary Villas Component. 13A. Developer's submission of grading permit Within 300 days after City's issuance of the SDPA. and building permit applications for Sanctuary Villas Parcel 8. 13B. Developer's submission of grading permit Within 120 days after Developer's completion of and building permit applications for Parcel 8 Sanctuary Villas Component. SanctuaryVillas Parcel 9. 12A. City's issuance of grading permit for Within 56 days after City's receipt of grading permit Sanctuary Villas Parcel 8. application for Sanctuary Villas Parcel 8. 12B. City's issuance of grading permit for Within 56 days after City's receipt of grading permit Sanctuary Villas Parcel 9. application for Sanctuary Villas Parcel 9. 13A. City's issuance of building permit for By the earlier of: (i) within 98 days after City's receipt Sanctuary Villas Parcel 8. of building permit application for Parcel 8 Sanctuary Villas Component, which is 42 days after City's issuance of grading permit for Sanctuary Villas Parcel 8, or (ii) within 660 days after Effective Date. 13B. City's issuance of building permit for Within 98 days after City's receipt of building permit Sanctuary Villas Parcel 9. application for Parcel 9 Sanctuary Villas Component, which is 42 days after City's issuance of grading permit for Sanctuary Villas Parcel 9. 14A. Developer commences construction of Within thirty (30) days after City's issuance of Parcel 8 Sanctuary Villas Component. building permits for the Parcel 8 Sanctuary Villas Component. 14B. Developer commences construction of Within thirty (30) days after City's issuance of Parcel 9 Sanctuary Villas Component. building permits for the Parcel 9 Sanctuary Villas Component. 15A. Developer's completion of Parcel 8 Within 30-36 months after City's issuance of final Sanctuary Villas Component. building permits for the Parcel 8 Sanctuary Villas Component. 15B. Developer's completion of Parcel 9 Within 30-36 months after City's issuance of final Sanctuary Villas Component. building permits for the Parcel 9 Sanctuary Villas Component. * In the event that a master grading plan and total parcel map for the entire Property are submitted with the SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA for the Parcels included in this Schedule and City Council consideration shall not be required. ** Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 17) 882/015610-0061 380889.08 al 1/26/03 -3- OUTSIDE DATES FOR CLOSING OPTION A Outside Date For Closing for Sanctuary Villas Parcel 8 and Sanctuary Villas Parcel 9: 365 days after the Effective Date. OPTION B Parcel Closing Milestones Sanctuary Villas Parcel 8 Within 180 days after the Developer's completion of the foundation for the Suites Hotel. Sanctuary Villas Parcel 9 Within 180 days after the City's issuance of building permits for the Parcel 8 Sanctuary Villas Component. 683 882/015610-0061 380889.08 al1/26/03 -4- SCHEDULE OF PERFORMANCE FOR SUITES HOTEL AND CASITAS DEVELOPMENT (ALL PHASES OF DEVELOPMENT) Item of Performance Time for Completion l . Developer execution of DDA. Within 7 days after Developer and Agency approve final draft. 2. Developer and Agency execute Early Entry Within 7 days after the Effective Date. Agreement. 3. Developer makes purchase election, and Within 7 days after the Effective Date. Agency and Developer open the Initial Escrow or the Property Escrow (as applicable). 4. Agency provides Developer with (i) copies of Within 30 days after the Effective Date. environmental studies and reports regarding the Property and (ii) the Preliminary Title Report. 5. Developer submission of complete Site Within 180 days after Effective Date. Development Permit Application "SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan • Tract Ma 6. Review of SDPA by all applicable City` Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submittal receipt of SDPA. 7. Agency response to Developer as to City Within 7 days after Agency's receipt of City's comments on SDPA. final comments, but no later than 30 days after Developer's submission of SDPA. 8. Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 9. Agency publishes Notice of Public Hearing Within 10 days after City responds to Developer's before the Planning Commission. comments in the preceding section. 10. Planning Commission Public Hearing and Approximately 10 days after first publication. consideration of SDPA and Tract Map. 11. City Council consideration of SDPA and Tract Within 21 days after Planning Commission Map. approval. Nothing herein shall be construed to limit the City's legislative authority, which City may excise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. (394 882/015610-0061 380889.08 al1/26/03 -5- Item of Performance Time for Completion 12. City's issuance of SDPA, Tract Map and Within 7 days after City Council approval. conditions. 13. Developer's preparation of final grading plans Within 180 days after City's issuance of SDPA and Design Development Drawings for the and Tract Map. Suites Hotel, all Phases of Development of the Casitas Development, and Seeley Drive. 14. Developer's submission of (i) evidence of Within 20 days after Developer's completion of financing necessary to complete the Suites Design Development Drawings for the Suites Hotel and the first Phase of Development of Hotel, the first Phases of Development of the the Casitas Development, and (iii) grading Casitas Development, and Seeley Drive. permit and building permit applications for the Suites Hotel, the first Phase of Development of the Casitas Development, and Seeley Drive. 15. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence conditions, or denial of Developer's evidence of financing of financingsubmitted in Item No. 14. 16. City's issuance of grading permit for the Suites Within 56 days after City's receipt of grading Hotel Parcel, the Parcel on which Developer permit application for the Suites Hotel Parcel, the shall construct the first Phase of Development Parcel on which Developer shall construct the first of the Casitas Development and Seeley Drive. Phase of Development of the Casitas Development, and Seeley Drive. 17. Developer's completion of first pavement lift Within (30) days after Developer's installation of and curbs and gutters of Seeley Drive. the foundation for the Suites Hotel. 18. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to construct the second Design Development Drawings for the second Phase of Development of the Casitas Phase of Development of the Casitas Development. Development. 19. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence conditions, or denial of Developer's evidence of financing. of financing in Item No. 18. 20. Developer's submission of grading and Within 120 days after Developer's completion of building permit applications for the second the first Phase of Development of the Casitas Phase of Development of the Casitas Development. Development. 21. City's issuance of grading permit for the Within 56 days after City's receipt of grading second Phase of Development of the Casitas permit application for the second Phase of Development. Development of the Casitas Development. 22. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to construct the third Design Development Drawings for the second Phase of Development. Phase of Development of the Casitas Development. 23. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence conditions, or denial of Developer's evidence of financing. of financing in Item No. 22. 882/015610-0061 6 8 380889.08 a11/26/03 -6- Item of Performance Time for Completion 24. Developer's submission of grading and Within 120 days after Developer's completion of building permit applications for the third Phase the second Phase of Development of the Casitas of Development of the Casitas Development. Development. 25. City's issuance of grading permit for the third Within 56 days after City's receipt of grading Phase of Development of the Casitas permit application for the third Phase of Development. Development of the Casitas Development. 26. City's issuance of building permits for the Within 98 days after City's receipt of building Suites Hotel, the first Phase of Development of permit application for the Suites Hotel, the first the Casitas Development, and Seeley Drive. Phase of Development of the Casitas Development, and Seeley Drive, which is 42 days after City's issuance of grading permit for the Suites Hotel, the first Phase of Development of the Casitas Development, and Seeley Drive. 27. Developer commences construction of Suites Within 30 days after Developer's receipt of Hotel and first Phase of Development of the building permits for the Suites Hotel and first Casitas Development. Phase of Development of the Casitas Development. 28. City's issuance of building permits for the Within 98 days after City's receipt of building second Phase of Development of the Casitas permit application for the second Phase of Development Development of the Casitas Development, which is 42 days after City's issuance of grading permit for the second Phase of Development of the Casitas Development 29. Developer commences construction of second Within 30 days after Developer's receipt of Phase of Development of the Casitas building permits for the second Phase of Development. Development of the Casitas Development. 30. City's issuance of building permits for the Within 98 days after City's receipt of building third Phase of Development of the Casitas permit application for the third Phase of Development Development of the Casitas Development, which is 42 days after City's issuance of grading permit for the third Phase of Development of the Casitas Development 31. Developer commences construction of third Within 30 days after Developer's receipt of Phase of Development of the Casitas building permits for the third Phase of Development. Development of the Casitas Development. 32. Completion of Suites Hotel. Within 18 months after City's issuance of building permits for Suites Hotel. 33. Developer completes final pavement lift of Within one hundred eighty (180) days after Seeley Drive. Developer's completion of the Suites Hotel. 34. Completion of first Phase of Casitas Within 30-36 months after City's issuance of Development. building permits for first Phase of Development of the Casitas Development. 35. Completion of second Phase of Casitas Within 30-36 months after City's issuance of Development. building permits for second Phase of Development of the Casitas Development. 882/015610-0061 l,) 8 G 380889.08 a11/26/03 -7- Item of Performance Time for Completion 36. Completion of third Phase of Casitas Within 30-36 months after City's issuance of Development. building permits for third Phase of Development of the Casitas Development. Outside Date for Closine for Suites Hotel Parcel, Casitas Parcel 2, Casitas Parcel 3, Casitas Parcel 4, Landscape Parcel C, Landscape Parcel E, and the Seeley Drive Parcel (under Option A or Option B): 365 days after the Effective Date. 882/015610-0061 380889.08 al 1/26/03 —g— ►y `1 � SCHEDULE OF PERFORMANCE FOR PARCEL 5 RESIDENTIAL DEVELOPMENT AND PARCEL 7 RESIDENTIAL DEVELOPMENT Item of Performance Time of Completion l . Developer's execution of the DDA. Within 7 days after Developer and Agency approve final draft. 2. Developer's submission of (i) evidence of Within 180 days after Effective Date. financing necessary to complete the Parcel 5 Residential Development and the Parcel 7 Residential Development, and (ii) complete Site Development Permit Application "SDPA", including: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan • Tentative Tract Ma 3. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submission of SDPA. 4. Agency response to Developer as to City Within 7 days after receipt of final comments, but no comments on SDPA. later than 30 days after Developer's submission of SDPA. 5. Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 6. Agency publishes Notice of Public Hearing Within 10 days after City responds to Developer's before the Planning Commission. comments in the preceding Section. 7. Planning Commission public hearing and Approximately 10 days after first publication. consideration of SDPA and Tentative Tract Map. 8. City Council consideration of SDPA and Within 21 days after Planning Commission approval. Tentative Tract Map. 9. City's issuance of SDPA, Tentative Tract Within 7 days after City Council approval. Map and conditions of approval. 10. Preparation of Grading Plans and Design By the earlier of. (i) within 180 days after City's Development Drawings for the Parcel 5 issuance of SDPA and Tentative Tract Map, or (ii) Residential Development and the Parcel 7 within 452 days after Effective Date. Residential Development. 11. Developer's submission of grading permit Within 20 days after Developer's completion of and building permit application for Design Development Drawings. backbone infrastructure for the Parcel 5 Residential Development and the Parcel 7 Residential Development. 882/015610-0061 i) 8 380889.08 al 1/26/03 -9- Item of Performance Time of Completion 12. City's issuance of Grading Permit for the Within 56 days after City's receipt of grading permit Parcel 5 Residential Development and the application. Parcel 7 Residential Development. 13 City's issuance of building permit for Within 98 days after City's receipt of Building Permit backbone infrastructure for the Parcel 5 application, which is 42 days after City's issuance of Residential Development and the Parcel 7 Grading Permit. Residential Development. 14. Developer's commencement of construction Within 30 days following City's issuance of Building of backbone infrastructure of the Parcel 5 Permits. Residential Development and the Parcel 7 Residential Development. 15 Within 90 days after the earlier of: (1) Developer's Developer's commencement of Construction commencement of construction of backbone of the Parcel 5 Residential Development and infrastructure and (2) Developer's completion of the Parcel 7 Residential Development. exterior walls and roof for the Suites Hotel. 16 Developer's completion of construction of Within 18 months following City's issuance of the Parcel 5 Residential Development and Building Permits for the Parcel 5 Residential the Parcel 7 Residential Development. Development and the Parcel 7 Residential Development. *Nothing herein shall be construed to limit City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. OUTSIDE DATES FOR CLOSING OPTION A Outside Date For Closing for Residential Parcel 5 and Residential Parcel 7: 365 days after the Effective Date. OPTION B Outside Date For Closing for Residential Parcel 5 and Residential Parcel 7: 30 days after the Developer's completion of the exterior walls and roof of the Suites Hotel. 882/015610-0061 380889.08 al 1/26/03 -10- (3,89 ,Q,9 SCHEDULE OF PERFORMANCE FOR MEDICAL OFFICE/SURGICAL FACILITY (ALL PHASES OF DEVELOPMENT) Item of Performance Time for Completion 1. Developer execution of DDA. Within 7 days after Developer and Agency approve final draft. 2A/B. Developer's submission of complete Site Within 270 days after Effective Date. Development Permit Application for the Parcel A Medical Office/Surgical Facility Component and for the first and second Phases of Development of the Medical Office/Surgical Facility, "First/Second MOB SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan* • Tract Map* 2C. Developer's submission of complete Site Within 90 days after City's issuance of building Development Permit Application for the permits for the first and second Phases of third Phase of Development of the Development of the Medical Office/Surgical Medical Office/Surgical Facility, "Third Facility. MOB SDPA," which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan* • Tract Map* 3A. Review of First/Second MOB SDPA by Agency will use reasonable efforts to cause such all applicable City** departments. review within 21 days after Developer's submittal of First/Second MOB SDPA. 3B. Review of Third MOB SDPA by all Agency will use reasonable efforts to cause such applicable City departments. review within 21 days after Developer's submittal of Third MOB SDPA. 4A. Agency response to Developer as to City Within 7 days after Agency's receipt of City's final comments on First/Second MOB SDPA. comments, but no later than 30 days after Developer's submission of First/Second MOB SDPA. 4B. Agency response to Developer as to City Within 7 days after Agency's receipt of City's final comments on Third MOB SDPA. comments, but no later than 30 days after Developer's submission of Third MOB SDPA. 882/015610-0061 380889.08 al 1/26/03 11 f� Item of Performance Time for Completion 5. Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 6A. Agency publishes Notice of Public Within 10 days after City responds to Developer's Hearing for the First/Second MOB SDPA comments regarding the First/Second MOB SDPA. before the Planning Commission. 6B. Agency publishes Notice of Public Within 10 days after City responds to Developer's Hearing for the Third MOB SDPA before comments regarding the Third MOB SDPA. the Planning Commission. 7A. Planning Commission Public Hearing and Approximately 10 days after first publication of consideration of First/Second MOB notice of the same. SDPA and Tract Map. 7B. Planning Commission Public Hearing and Approximately 10 days after first publication of consideration of Third MOB SDPA and notice of the same. Tract Map. 8A. City Council consideration of Within 21 days after Planning Commission approval First/Second MOB SDPA and Tract of First/Second MOB SDPA. Map.* 8B. City Council consideration of Third MOB Within 21 days after Planning Commission approval SDPA and Tract Map.* of Third MOB SDPA. 9A. City's Issuance of First/Second MOB Within 7 days after approval of First/Second MOB SDPA Tract Map, if applicable. SDPA by both Planning Commission and City Council. 9B. City's Issuance of Third MOB SDPA Within 7 days after approval of Third MOB SDPA Tract Map, if applicable by both Planning Commission and City Council. 10A. Developer's preparation of final grading Within 180 days after City's issuance of plans and Design Development Drawings First/Second MOB SDPA and Tract Map (if for the Parcel A Medical Office/Surgical applicable). Facility Component and the first and second Phases of Development of the Medical Office/Surgical Facility. 1 OB. Developer's preparation of final grading Within 180 days after City's issuance of Third MOB plans and Design Development Drawings SDPA and Tract Map (if applicable). for the third Phase of Development of the Medical Office/Surgical Facility. 1 IA. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Design Development Drawings for the Parcel A Parcel A Medical Office/Surgical Facility Medical Office/Surgical Facility Component and the Component and the first and second first and second Phases of Development of the Phases of Development of the Medical Medical Office/Surgical Facility. Office/Surgical Facility and of grading permit and building permit applications for the Parcel A Medical Office/Surgical Facility Component and the first and second Phases of Development of the Medical Office/Surgical Facility. 882/015610-0061 —12— [� ��j 380889.08 al1/26/03 Item of Performance Time for Completion 11B. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the third Design Development Drawings for the third Phase of Phase of Development of the Medical Development of the Medical Office/Surgical Office/Surgical Facility and of grading Facility. permit and building permit applications for the third Phase of Development of the Medical Office/Surgical Facility. 12A. Agency's review and approval, approval Within 30 days after Agency's receipt of the same. with conditions or denial of Developer's evidence of financing submittal in Item 1 IA. 12B. Agency's review and approval, approval Within 30 days after Agency's receipt of the same. with conditions or denial of Developer's evidence of financing submittal in Item 11B. 13A. City's issuance of grading permit for the The later of (i) within 56 days after City's receipt of Parcel A Medical Office/Surgical Facility building permit application for first Phase of Component and first Phase of Development of the Medical Office/Surgical Facility Development of the Medical or (ii) upon Developer's completion of foundation Office/Surgical Facility. for Suites Hotel. 13B. City's issuance of grading permit for The later of (i) within 56 days after City's receipt of second Phase of Development of the building permit application for the second Phase of Medical Office/Surgical Facility. Development of the Medical Office/Surgical Facility or (ii) upon Developer's completion of framing of exterior walls of the Suites Hotel. 13C. City's issuance of grading permit for the The later of (i) within 56 days after City's receipt of third Phase of Development of the building permit application for the third Phase of Medical Office/Surgical Facility. Development of the Medical Office/Surgical Facility or (ii) upon Developer's completion of exterior walls and roof for the Suites Hotel. 14A. City's issuance of building permit for By the earlier of: (i) within 98 days after City's Parcel A Medical Office/Surgical Facility receipt of building permit application for the first and first Phase of Development of the Phase of Development of the Medical Medical Office/Surgical Facility. Office/Surgical Facility, which is 42 days after issuance of grading permit for the first Phase of Development of the Medical Office/Surgical Facility, or (ii) within 660 days after Effective Date. 14B. City's issuance of building permit for Within 98 days after City's receipt of building second Phase of Development of the permit application for the second Phase of Medical Office/Surgical Facility. Development of the Medical Office/Surgical Facility, which is 42 days after issuance of grading permit for the second Phase of Development of the Medical Office/Surgical Facility. 882/015610-0061 380889.08 a] 1 /26/03 -13 - Item of Performance Time for Completion 14C. City's issuance of building permit for Within 98 days after City's receipt of building third Phase of Development of the permit application for the third Phase of Medical Office/Surgical Facility. Development of the Medical Office/Surgical Facility, which is 42 days after issuance of grading permit for the third Phase of Development of the Medical Office/Surgical Facility. 15A. Developer commences construction of With thirty (30) days after City's issuance of Parcel A Medical Office/Surgical Facility building permits for the first Phase of Development and first Phase of Development of the of the Medical Office/Surgical Facility. Medical Office/Surgical Facility. 15B. Developer commences construction of With thirty (30) days after City's issuance of second Phase of Development of the building permits for the second Phase of Medical Office/Surgical Facility. Development of the Medical Office/Surgical Facility. 15C. Developer commences construction of With thirty (30) days after City's issuance of third Phase of Development of the building permits for the third Phase of Development Medical Office/Surgical Facility. of the Medical Office/Surgical Facility. 16A. Developer's completion of Parcel A Within 30-36 months after City's issuance of Medical Office/Surgical Facility and the building permits for Parcel A Medical first Phase of Development of the Medical Office/Surgical Facility Component and the first Office/Surgical Facility. Phase of Development of the Medical Office/Surgical Facility. 16B. Developer's completion of second Phase Within 30-36 months after City's issuance of of Development of the Medical building permit for second Phase of Development of Office/Surgical Facility. the Medical Office/Surgical Facility Component. 16C. Developer's completion of third Phase of Within 30-36 months after City's issuance of Development of the Medical building permit for third Phase of Development of Office/Surgical Facility. the Medical Office/Surgical Facility Component. * In the event that a master grading plan and total parcel map for the entire Property are submitted with the SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA for any of the Parcels included in this Schedule and City Council consideration shall not required. ** Nothing herein shall be construed to limit City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0061 380889.08 a11/26/03 —14— `_� OUTSIDE DATES FOR CLOSING OftION A Outside Date for Closing for Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10, Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12: 365 days after the Effective Date. OPTION B Parcel Outside Date for Closing Medical Office/Surgical Facility Parcel A Within 90 days after the Developer's completion of and one of (i) Medical Office/Surgical Facility the foundation for the Suites Hotel. Parcel 10, (ii) Medical Office/Surgical Facility Parcel 11, or (iii) Medical Office/Surgical Facility Parcel 12 One of (i) Medical Office/Surgical Facility Within 90 days after the Developer's completion of Parcel 10, (ii) Medical Office/Surgical Facility framing of all exterior walls of the Suites Hotel. Parcel 11, or (iii) Medical Office/Surgical Facility Parcel 12 The final unpurchased Parcel of the (i) Medical Within 90 days after the Developer's completion of Office/Surgical Facility Parcel 10, (ii) Medical the exterior walls and roof of the Suites Hotel. Office/Surgical Facility Parcel 11, and (iii) Medical Office/Surgical Facility Parcel 12 882/015610-0061 380889.08 a1126/03 -15- 694 SCHEDULE OF PERFORMANCE FOR PARCEL 1 RESTAURANT AND PARCEL 13 RESTAURANT Item of Performance Time for Completion 1. Developer execution of DDA. Within 7 days after Developer and Agency approve final draft. 2A. Developer's submission of complete Site Within 180 days after Effective Date. Development Permit Application for Restaurant Parcel 1 "Parcel 1 SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan* • Tract Map* 2B. Developer's submission of complete Site Within 180 days after City's issuance of building Development Permit Application for permits for Restaurant Parcel 1. Restaurant Parcel 13 "Parcel 13 SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Master Grading Plan* • Tract Map* 3A. Review of Parcel 1 SDPA by all Agency will use reasonable efforts to cause such applicable City** departments. review within 21 days after Developer's submittal of Parcel 1 SDPA. 3B. Review of Parcel 13 SDPA by all Agency will use reasonable efforts to cause such applicable City departments. review within 21 days after Developer's submittal of Parcel 13 SDPA. 4A. Agency response to Developer as to City Within 7 days after Agency's receipt of City's comments on Parcel 1 SDPA. final comments on application, but no later than 30 days after Developer's submission of Parcel 1 SDPA. 4B. Agency response to Developer as to City Within 7 days after Agency's receipt of City's comments on Parcel 13 SDPA. final comments on application, but no later than 30 days after Developer's submission of Parcel 13 SDPA. 5. Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 882/015610-0061 -16- r , 9 380889.08 a11/26/03 Item of Performance Time for Completion 6A. Agency publishes Notice of Public Within 10 days after City responds to Developer's Hearing for the Parcel 1 SDPA before the comments regarding the Parcel 1 SDPA. Planning Commission. 6B. Agency publishes Notice of Public Within 10 days after City responds to Developer's Hearing for the Parcel 13 SDPA before comments regarding the Parcel 13 SDPA. the Planning Commission. 7A. Planning Commission's Public Hearing Approximately 10 days after first publication of and consideration of Parcel 1 SDPA and notice of the same. Tract Map. 7B Planning Commission's Public Hearing Approximately 10 days after first publication of and consideration of Parcel 13 SDPA and notice of the same. Tract Map. 8A. City Council's consideration of Parcel 1 Within 21 days after Planning Commission SDPA and Tract Map.* approval of the Parcel 1 SDPA. 8B. City Council's consideration of Parcel 13 Within 21 days after Planning Commission SDPA and Tract Map.* approval of the Parcel 13 SDPA. 9A. City's issuance of Parcel 1 SDPA and Within 7 days after approval of Parcel 1 SDPA by Tract Map and conditions. both Planning Commission and City Council. 9B. City's issuance of Parcel 13 SDPA and Within 7 days after approval of Parcel 13 SDPA Tract Map and conditions. by both Planning Commission and City Council. 10A. Developer's preparation of final grading Within 180 days after City issues Parcel I SDPA, plan and Design Development Drawings Tract Map, and conditions. for Restaurant Parcel 1. IOB. Developer's preparation of final grading Within 180 days after City issues Parcel 13 plan and Design Development Drawings SDPA, Tract Map, and conditions. for Restaurant Parcel 13. 1 IA. Developer's submission of (i) evidence of Within 20 days after Developer's completion of financing necessary to complete Parcel 1 Design Development Drawings for the Parcel 1 Restaurant, and (ii) grading and building Restaurant. permit applications for Restaurant Parcel 1. 11B. Developer's submission of (i) evidence of Within 20 days after Developer's completion of financing necessary to complete Parcel 1 Design Development Drawings for the Parcel 13 Restaurant, and (ii) grading and building Restaurant. permit applications for Restaurant Parcel 13. 11 C. Developer's submission of grading and Within 20 days after Developer's completion of building permit applications for the Parcel 1 Restaurant. Restaurant Parcel 13. 12A. City's issuance of grading permit for Within 56 days after City's receipt of building Restaurant Parcel 1. permit application for Restaurant Parcel 1. 12B. City's issuance of grading permit for Within 56 days after City's receipt of building Restaurant Parcel 13. 1 permit application for Restaurant Parcel 13. 882/015610-0061 380889.08 al 1/26/03 -17- (� Item of Performance Time for Completion 13A. City's issuance of building permit for Within 98 days after receipt of building permit Parcel 1 Restaurant. application for Parcel 1 Restaurant, which is 42 days after City's issuance of grading permit for Restaurant Parcel 1. 13B. City's issuance of building permit for By the earlier of: (i) within 98 days after receipt of Parcel 13 Restaurant. building permit application for Parcel 13 Restaurant, which is 42 days after City's issuance of grading permit for Restaurant Parcel 13, or (ii) within 570 days after Effective Date. 14A. Developer commences construction of Within thirty (30) days after City's issuance of Parcel 1 Restaurant. buildin permits for Parcel 1 Restaurant. 14B. Developer commences construction of Within thirty (30) days after City's issuance of Parcel 13 Restaurant. building permits for Parcel 13 Restaurant. 15A. Completion of Parcel 1 Restaurant. Within 30-36 months after City's issuance of building permits for Parcel 1 Restaurant. 15B. Completion of Parcel 13 Restaurant. Within 30-36 months after City's issuance of building permits for the Parcel 13 Restaurant. * In the event that a master grading plan and total parcel map for the entire Property are submitted with the SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA for any of the Parcels included in this Schedule, and City Council consideration shall not be required. ** Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0061 ' 4% 380889.08 a11/26/03 -18- ' " OUTSIDE DATES FOR CLOSING OPTIONA Outside Closing Date for Closing for Restaurant Parcel 1 and Restaurant Parcel 13: 365 days after the Effective Date. OPTION B Parcel I Closing Milestones Restaurant Parcel 1 Within 90 days after the Developer's completion of the foundation for the Suites Hotel. Restaurant Parcel 13 Within 90 days after the City's issuance of building permits for Parcel 13 Restaurant. 882/015610-0061 -19- r (� 380889.08 al 1/26/03 INDEMNIFICATION AGREEMENT THIS INDEMNIFICATION AGREEMENT is made and entered into as of , 2003, by and among CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Center Point"), the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and the CITY OF LA QUINTA, a California municipal corporation (the "City") with reference to the following Recitals. Recitals A. Center Point and the Agency have entered into that certain Disposition and Development Agreement dated concurrently herewith (the "DDA"), pursuant to which, among other terms, (i) Agency has agreed to sell to Center Point, and Center Point has agreed to purchase from Agency certain real property identified therein as the "Property", which is located in the City of La Quinta, County of Riverside, State of California, and (ii) Center Point has agreed to construct, complete, and operate on the Property a commercial project containing a medical office/surgical facility, a development containing "sanctuary villas," a mid -price suites hotel, a resort -style condominium/casitas development, two (2) sit-down restaurants, and two (2) single-family residential developments, with forty (40) of the single-family homes restricted for sale to moderate -income buyers at restricted sales prices, all as more particularly described in the DDA (collectively, the "Project). B. Center Point and the City have entered into that certain Development Agreement dated concurrently herewith (the "Development Agreement"), which, among other terms, (i) sets forth a payment schedule for Center Point's mitigation payments to the City; (ii) sets forth a schedule for Center Point's payment to the City of Three Hundred Forty -Six Thousand Eleven Dollars ($346,011) as Center Point's financial obligation toward certain landscaping improvements to be installed on a portion of the Property; (iii) requires Center Point, at its sole cost, to construct a neighborhood park on certain real property owned in fee by the City; and (iv) sets forth the extent to which Center Point may construct, develop, use and operate the Project, all as more particularly described in the Development Agreement. C. The Agency and City were initially contacted regarding the Project by Center Point Development, LLC, a California limited liability company (the "Original Developer"). At some point during the negotiations regarding the Project, the Original Developer requested that the developer entity listed as the contracting party in the DDA and DA be changed to Center Point. D. City and Agency agreed to change the developer entity listed as the contracting party to Center Point provided that Center Point agreed to indemnify the City and Agency against any claims regarding such change or resulting from the City's approval of the DA and/or the Agency's or City's approval of the DDA with Center Point. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 882/015610-0061 427773,02 a11/21/03 a Agreement 1. Indemnification by Center Point. Center Point hereby agrees that it shall indemnify, defend, and hold harmless City and Agency and their respective officers, officials, members, employees, agents, consultants, and representatives from and against any and all claims, liabilities, damages, losses, suits, costs and expenses of every kind, nature and type (including but not limited to expert witness fees and reasonable attorneys' fees) asserted by any person, entity, or party arising out of the Agency's and City's agreement to change the developer entity listed as the contracting party in the DA and DDA from the Original Developer to Center Point, or from the City's approval of the DA and/or the Agency's or City's approval of the DDA with Center Point. 2. Successors and Assigns. This Indemnification Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective parties hereto. 3. Governing Law. This Indemnification Agreement shall be governed by and construed in accordance with the laws of the State of California. 4. Further Assurances. The parties covenant and agree that they will execute such other and further instruments and documents as are or may become necessary or convenient to effectuate and carry out this Indemnification Agreement. 5. Authority of Signatories to Bind Principals. The persons executing this Indemnification Agreement on behalf of their respective principals represent that (i) they have been authorized to do so and that they thereby bind the principals to the terms and conditions of this Indemnification Agreement and (ii) their respective principals are properly and duly organized and existing under the laws of, and permitted to do business in, the State of California. 6. Interpretation. The paragraph headings of this Indemnification Agreement are for reference and convenience only and are not part of this Indemnification Agreement. They have no effect upon the construction or interpretation of any part hereof. The provisions of this Indemnification Agreement shall be construed in a reasonable manner to effect the purposes of the parties and of this Indemnification Agreement. 7. Attorney,�s_Fees. In the event that a party to this Indemnification Agreement brings an action against another party hereto by reason of the breach of any condition, covenant, representation or warranty in this Indemnification Agreement, or otherwise arising out of this Indemnification Agreement, the prevailing party in such action shall be entitled to recover from the non -prevailing party expert witness fees, and its reasonable attorney's fees and costs. Attorney's fees shall include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, including the conducting of discovery. 88MI5610-Ml 2 427773.02 al1/21/03 8. Counterparts. This Indemnification Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. IN WITNESS WHEREOF, this Indemnification Agreement has been executed by the parties as of the date set forth above. "Center Point" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Dated: Its: Member Dated: Dated: 8821015610-0061 427773.02 a11/21/03 K Bv: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President (.'City„ City of La Quinta, a California municipal corporation By: Thomas Genovese Title: City Manager "Agency" La Quinta Redevelopment Agency, a public body, corporate and politic By: Thomas Genovese Title: Executive Director COUNCIL/RDA MEETING DATE: December 2, 2003 ITEM TITLE: Joint Public Hearing for Consideration of Revisions to a Previously Approved Disposition by and Between the La Quinta Redevelopment Agency and Center Point Development, LLC, a California Limited Liability Company (the "Original Developer"), of Agency Property Located Southeast of the Intersection of Washington Street and Miles Avenue in La Quinta Project Area No. 2, and a Development Agreement by and Between the City of La Quinta and the Original Developer RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Adopt a Resolution of the City Council approving the Disposition and Development Agreement by and between the City of La Quinta and CP Development La Quinta, LLC ("Proposed Developer") . Move to take up Ordinance No. by title and number only and waive further reading. Move to introduce Ordinance No. on first reading approving the changes to the Development Agreement. FISCAL IMPLICATIONS: Per the revised Disposition and Development Agreement (the "Revised DDA"), the Proposed Developer will pay the Agency $7,109,634 to purchase the 42.47 acre site. The Agency will then expend $2,520,000 (account numbers to be established upon receipt of the land sale) in housing funds to secure 40 single-family units that will be affordable to moderate -income family households. To date, the Agency has spent $3,949,203 to purchase and improve the site; $3,678,305 of 1995 Housing Bond funds and $270,898 of Project Area No. 2. Low- and Moderate - Income Housing funds. Per Federal and State law, $3,949,203 of the land sale proceeds will be dedicated to this and a second affordable housing development (the Avenue 48 affordable housing development). The remaining $3,160,431 in sale proceeds will be deposited into the Project Area No. 2 Debt Service fund. 7042 BACKGROUND AND OVERVIEW: On June 3, 2003 the City Council approved a Disposition and Development Agreement for the Center Point project located on a 46.6-acre property, situated at the southeast corner of Miles Avenue and Washington Street. The project included the development of a hotel, casitas, medical office building, restaurants, boutique hotel, park, and residential uses. Staff is not proposing a change to any of these uses with these revisions. The revisions pertain to the Revised DDA and DA only and provide for a change to the development entity from the Original Developer to the Proposed Developer, allowing flexibility for cost reallocation relating to the perimeter landscaping improvement, and revising the insurance requirements for the development. All other provisions of the Disposition and Development Agreement and Development Agreement, as originally approved, remain the same. Public Noticing This application was advertised in the Desert Sun on November 18" and 25th, 2003. As of this writing no correspondence has been received regarding this project. FINDINGS AND ALTERNATIVES: The alternatives available to the City Council include: 1. Adopt a Resolution of the City Council approving the Disposition and Development Agreement by and between the City of La Quinta and CP Development La Quinta, LLC; and Move to take up Ordinance No. by title and number only and waive further reading. Move to introduce Ordinance No. on first reading approving the changes to the Development Agreement; or 2. Do not adopt the Resolution or Ordinance that approves the changes to the Disposition and Development Agreement and Development Agreement; or 3. Provide staff with alternative direction. Respectfully submitted, J�fqy HermfAri Corjhmunity Development Director Approved for submission by: Mark Weiss, Acting City Manager Attachments: 1. Summary Report 2. Disposition and Development Agreement 3. Development Agreement 03 7G4 RESOLUTION 2003- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LA QUINTA APPROVING A REVISED DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY AND CP DEVELOPMENT LA QUINTA, LLC FOR THE PROPERTY LOCATED AT THE SOUTHEAST CORNER OF WASHINGTON STREET AND MILES AVENUE WHEREAS, the La Quinta Redevelopment Agency ("Agency") is a public body, corporate and politic, organized and existing under the California Community Redevelopment Law (Health & Safety Code Section 33000 et seq.) ("CRL"); and WHEREAS, pursuant to the CRL, the City Council of the City of La Quinta ("City" or "City Council", as applicable) approved and adopted the Redevelopment Plan ("Redevelopment Plan") for Project Area No. 2 ("Project Area"), on November 29, 1983, by Ordinance No. 43, and amended the Redevelopment Plan on December 20, 1994, by Ordinance No. 258; and WHEREAS, the Agency staff previously negotiated a Disposition and Development Agreement ("Original Agreement") with Center Point Development, LLC, a California limited liability company ("Original Developer"), pursuant to which the Agency would convey to the Developer, either all at once ("Option A"), or in phases ("Option B"), certain real property located within the Project Area (the "Property") for Seven Million Fifty -Four Thousand Seventy -Four Dollars ($7,054,074) for the Original Developer's subsequent development thereon of a commercial project containing a medical office/clinic, a boutique hotel, a mid -price suites hotel, a resort -style condomimium/casistas development, two sit-down restaurants, and two single-family residential developments, with forty of the single-family homes restricted for sale to moderate -income buyers at an affordable housing cost, all as more particularly described in the Original Agreement (collectively, the "Project"); and WHEREAS, the Original Agreement provided that Agency could reacquire any undeveloped portion of the Property then owned by the Original Developer in the event the Original Developer failed to commence construction of any particular phase of the Project within certain specified time frames, interrupted construction of a particular phase of the Project for a specified period of time, or transfered a particular phase of the Project in violation of the Original Agreement, all as more particularly described in the Original Agreement; and WHEREAS, in accordance with Health and Safety Code Section 33433 the Agency prepared a Summary Report to consider the Agency's proposed sale of the Property as set forth in the Original Agreement, the Agency Board and the City Council, on June 3, 2003, conducted a noticed joint public hearing with respect to the Original Agreement, and the Agency Board and the City Council, in connection with their respective approvals of the Original Agreement made certain findings and determinations as set forth in City Council Resolution No. and La Quinta Redevelopment Agency Resolution No. ; and G4 70J City Council Resolution 2003- Disposition and Development Agreement CP Development La Quinta, LLC Adopted: December 2, 2003 WHEREAS, prior to execution of the Original Agreement, the Original Developer requested certain changes thereto, including (i) changing the developer entity from the Original Developer to CP Development La Quinta, LLC, a California limited liability company ("Proposed Developer"), (ii) revising the landscaping obligations of the Proposed Developer to account for the possibility that the City does not obtain certain landscaping grants, (iii) revising the Site Plan attached to the Original Agreement and the individual parcel prices set forth therein to reflect the landscaping changes and certain other changes necessitated by the proposed installation of a well - site for the Project, which changes resulted in an increase in the purchase price of Fifty -Five Thousand Five Hundred Sixty Dollars ($55,560), and (iv) revising the insurance requirements for the Proposed Developer; and WHEREAS, a revised Summary Report for the revised Disposition and Development Agreement (the "Revised Agreement") has been prepared and the joint public hearing has been duly noticed and conducted in accordance with applicable requirements of law; and WHEREAS, the City Council and the Redevelopment Agency have considered all the information and evidence set forth in the revised Summary Report presented by the City/Agency staff and presented by persons wishing to appear and be heard concerning the impact of the Revised Agreement on the Project Area and the City of La Quinta as a whole; and WHEREAS, the Revised Agreement is in accordance with the Redevelopment Plan and is of benefit to the Project Area and the City of La Quinta; and WHEREAS, the City Council hereby determines that the Agency's sale of the Property pursuant to the Revised Agreement is necessary to effectuate the purposes of the Redevelopment Plan; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA QUINTA AS FOLLOWS: 1. That the above recitals are true and correct and incorporated herein. 2. That the City Council of the City of La Quinta hereby resolves as follows: A. The Revised Agreement effectuates the purposes of the Community Redevelopment Law (Health & Safety Code Section 33000 et seq.) and of the Redevelopment Plan and is in the best interests of the citizens of the City of La Quinta. S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 2 CC Reso DDAMOC 05 7 �. 6 City Council Resolution 2003- Disposition and Development Agreement CP Development La Quinta, LLC Adopted: December 2, 2003 B . The Agency's sale of the Property will eliminate blight and is consistent with the Agency's Five -Year Implementation Plan, based on the findings and conclusions of the revised Summary Report, which is incorporated herein. C. The Agency's sale of the Property will eliminate blight in that it will facilitate the development of affordable housing. D. The consideration the Proposed Developer will pay for the Property is not less than the fair market value of the Property at its highest and best use in accordance with the Redevelopment Plan, based on the findings and conclusions of the revised Summary Report. 3. The Revised Agreement, a copy of which is on file with the Agency Secretary, is hereby approved. The City Council consents to the Agency's authorization and direction to its Executive Director and Agency Counsel to make final modifications to the Revised Agreement that are consistent with the substantive terms of the Revised Agreement approved hereby, and to thereafter sign the Revised Agreement on behalf of the Agency. 4 The City Council consents to the Agency's authorization and direction to its Executive Director to (i) sign such other and further documents, including but not limited to subordination agreements and escrow instructions that require the Agency's signature, and (ii) take such other and further actions, as may be necessary and proper to carry out the terms of the Revised Agreement. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of La Quinta held this 2nd day of December, 2003, by the following vote: AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta, California S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 2 CC Reso DDA.DOC City Council Resolution 2003- Disposition and Development Agreement CP Development La Quinta, LLC Adopted: December 2, 2003 ATTEST: JUNE S. GREEK, City Clerk City of La Quinta, California APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 2 CC Reso DDA.DOC 07 7 t..i ORDINANCE NO. A ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LA QUINTA, CALIFORNIA, APPROVING A REVISED DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF LA QUINTA AND CP DEVELOPMENT LA QUINTA, LLC CASE NO.: DEVELOPMENT AGREEMENT 2003-006 APPLICANT: CP DEVELOPMENT LA QUINTA, LLC WHEREAS, California Government Code Section 65864 et seq. (the "Development Agreement Law") authorizes cities to enter into binding development agreements with persons having a legal or equitable interest in real property for the development of such property, all for the purpose of strengthening the public planning process, encouraging private participation and comprehensive planning and identifying the economic costs of such development; and WHEREAS, the City Council of the City of La Quinta ("City" or "City Council", as applicable), on the 3rd of June, 2003, held a duly noticed public hearing to consider (i) a disposition and development agreement ("Original DDA") by and between the La Quinta Redevelopment Agency ("Agency") and Center Point Development, LLC, a California limited liability company (the "Original Developer"), pursuant to which the Original Developer agreed to purchase certain real property located within the City (the "Site"); and (ii) a development agreement ("Original Development Agreement") by and between the City and the Original Developer, pertaining to the Site. By adoption of City Council Ordinance No. 385, the City Council approved the Original Development Agreement; and WHEREAS, prior to execution of the Original Development Agreement, the Original Developer requested certain changes thereto, including (i) changing the developer entity from the Original Developer to CP Development La Quinta, LLC, a California limited liability company ("Proposed Developer"), (ii) revising the landscaping obligations of the Proposed Developer to account for the possibility that the City does not obtain certain landscaping grants, and (iii) revising the insurance requirements for the Proposed Developer; and WHEREAS, pursuant to the Original DDA, as revised, the Proposed Developer has an equitable interest in the Site and qualifies to enter into a Development Agreement pursuant to the Development Agreement Law; and WHEREAS, the City Council of the City of La Quinta, California ("City Council"), did on the 2nd of December, 2003, hold a duly noticed public hearing to consider the Revised Development Agreement; and, C8 r Ordinance No. Development Agreement 2003-006 CP Development La Quinta, LLC Adopted: December 2, 2003 WHEREAS, the Planning Commission of the City of La Quinta, California, did on the 25th of November, 2003, hold a duly noticed Public Hearing to consider the Revised Development Agreement and the recommendation of the Planning Commission has been received by the City Council; and, WHEREAS, at said City Council Public Hearing, upon hearing and considering all testimony and arguments, if any, of all interested persons wanting to be heard, said City Council did make the following mandatory findings to justify approving the Revised Development Agreement: 1. The proposed Revised Development Agreement is consistent with the objectives, policies, general land uses and programs of the City of La Quinta General Plan and Specific Plan 2001-005. 2. The property is within the Tourist Commercial, Medium Density Residential, and Park Districts of the 1992 General Plan Update which permits the proposed use and the proposed use is consistent with the goals, policies and intent of the La Quinta General Plan Land Use Element (Chapter 2). 3. The land uses authorized and regulations prescribed for the Revised Development Agreement are compatible with the zoning and its related regulations now applicable to the property. The site is zoned Tourist Commercial, Medium Density Residential and Park which permits the proposed uses provided conditions are met. 4. The proposed Revised Development Agreement conforms with public convenience and the general welfare by providing for extensive public improvements and conforms to good land use practice by requiring the development of a commercial development. 5. Approval of this Revised Development Agreement will not be detrimental to the health, safety, and general welfare since adequate provision has been made in previous City approvals to provide for necessary and desirable improvements and since these approvals are incorporated herein. 6. Approval of this Revised Development Agreement will not adversely affect the orderly development of the subject or surrounding property nor the preservation of area -wide property values, but rather will enhance them by encouraging planned, phased growth. C9 S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 2 Ord CP CtrPt DevAgrmt.DOC 710 Ordinance No. Development Agreement 2003-006 CP Development La Quinta, LLC Adopted: December 2, 2003 7. Consideration of the Revised Development Agreement has been accomplished pursuant to California Government Code Section 65864 et seq. and the City of La Quinta Municipal Code Section 9.250.030, which governs Development Agreements. WHEREAS, all actions required to be taken by the City precedent to the adoption of this Ordinance have been regularly and duly taken. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La Quinta, California that it does ordain as follows: SECTION 1. APPROVAL. The City Council hereby approves and adopts the Revised Development Agreement in the form presented to the City Council concurrent with the approval and adoption of this Ordinance, and authorizes and directs the Mayor to sign the Revised Development Agreement on behalf of the City, and the City Clerk to record the Revised Development Agreement in the Official Records of Riverside County in accordance with applicable law. SECTION 2 ENVIRONMENTAL. Said Specific Plan complies with the requirements of The Rules to Implement the California Environmental Quality Act of 1970 as amended (Resolution 83-63). The Community Development Department completed Environmental Assessment 2001-436, certifying a Mitigated Negative Declaration of environmental impact as adopted by the City Council on February 5, 2002 under Resolution 2002-07, for this Specific Plan 2001-005. An Addendum has been prepared for the proposed Specific Plan 2001-005, Amendment # 1 and Development Agreement 2003-006. No changed circumstances or conditions are proposed which would trigger the preparation of subsequent environmental review pursuant to Public Resources Code Section 21166. SECTION 3. EFFECTIVE DATE. This Ordinance shall be in full force and effect thirty (30) days after its adoption. SECTION 4: POSTING. The City Clerk shall certify to the passage and adoption of this Ordinance, and shall cause the same to be posted in at least three public places designated by resolution of the City Council, and shall cause this Ordinance and its certification, together with proof of posting, to be entered into the Book of Ordinances of this City. The foregoing Ordinance was approved and adopted at a meeting of the City Council held on this day of , 2003, by the following vote: S:\CityMgr\STAFF REPORTS ONLY\12-2-03\PH 2 Ord CP CtrPt DevAgrmt.DOC 10 711 Ordinance No. Development Agreement 2003-006 CP Development La Quinta, LLC Adopted: December 2, 2003 AYES: NOES: ABSENT: ABSTAIN: DON ADOLPH, Mayor City of La Quinta, California ATTEST: JUNE S. GREEK, City Clerk City of La Quinta, California APPROVED AS TO FORM: M. KATHERINE JENSON, City Attorney City of La Quinta, California 4 ATTACHMENT #1 SUMMARY REPORT FOR THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY AND CP DEVELOPMENT LA QUINTA, LLC November 26, 2003 INTRODUCTION This document is the Summary Report ("Report") for the Disposition and Development Agreement ("Revised -Agreement") by and between the La Quinta Redevelopment Agency ("Agency") and CP Development La Quinta, LLC, a California limited liability company ("Proposed Developer"). The Revised Agreement facilitates the sale of approximately 42.47-acre Agency -owned parcel ("Property") to the Proposed Developer who will construct: • Approximately 134 room Homewood Suites by Hilton hotel ("Hotel") • Approximately 136 one and two story casitas hotel condominium units to be rented as vacation rental units ("Casitas") • A sanctuary villas development with approximately 26 1,200 square foot villas and a spa ("Boutique Hotel") • A 120,000 square foot medical and surgical center comprised of three 40,000 square foot buildings ("MOB") • Two sit-down restaurants ("Restaurants") • 13 courtyard cluster villa homes that will be sold at market sales prices ("Villas") • 54 One-story Single Family and Courtyard Homes of which 40 will be sold at prices affordable to moderate income households ("Affordable Single Family and Courtyard Homes"), with the remaining 14 sold at market sales prices ("Market Single -Family Homes") • A 2.68-acre park ("Park"). The aforementioned improvements constitute the "Development". This Report has been prepared pursuant to Section 33433 of the California Health and Safety Code (the California Community Redevelopment Law or "Law") and addresses the following: • A summary of the proposed Development. • The cost of the Revised Agreement to the Agency. • The estimated value of the interest to be conveyed, determined at the highest and best uses permitted by the Agency's Redevelopment Plan. • The estimated value of the interest to be conveyed determined at the use with the conditions, covenants, and development costs required by the Revised Agreement. ,r) G:\WPDOCS\SumRptCP CtrPt Rev-DOC 1 '�l 3 • An explanation of why the sale of property pursuant to the Revised Agreement will assist in the elimination of blight. • Conformance with the Agency's Five- Year Implementation Plan. THE DEVELOPMENT The Agency purchased the Property in 1995 in order to reserve land for affordable housing development. Subsequently, the Agency focused its attention on facilitating affordable housing development opportunities on other Agency owned properties located on Avenue 48. In December 1999, the Agency circulated a Request for Proposals that sought a mix of hotel, restaurant, and affordable housing development on the Property. The desire to seek hotel and restaurant uses was generated by the opening of the Indian Wells tennis Gardens, located northwest of the Property. Proposals were received and the Agency entered into two separate exclusive negotiation agreements. The first, in March 2000, encompassed a 10.8-acre segment of the Property and entailed a proposal to develop a Hilton Gardens Inn hotel. The developer and Agency concluded negotiations without reaching agreement because site access issues could not be resolved. The Agency entered into a second exclusive negotiation agreement in February 2001 for the entire Property. This agreement was also terminated after the development entity failed to structure an economically viable project. The Agency then moved forward to secure environmental clearances and entitle the Property with the approval, by the City of La. Quinta ("City"), of a specific plan in February 2002. Center Point Development, LLC (the "Original Developer") first contacted the Agency in June 2002 regarding their interest in developing hotel, restaurant, medical office, and affordable and market rate housing on the Property. In August 2002, the Agency entered into an exclusive negotiation agreement with the Original Developer that initiated a 120 day period during which the Original Developer would structure a development program, secure tenants, secure financing commitments, and process amendments to the February 2002 specific plan. Further, the Agency and Original Developer together would negotiate property purchase terms, and if agreement was reached, draft a disposition and development agreement. The negotiations generated purchase terms that were accepted by both the Agency and Original Developer, and a disposition and development (the "Original DDA) was subsequently drafted. Per the Original DDA the Original Developer would purchase the property for $7,054,074. The Original Developer would then mass grade the Property and construct Seeley Drive, utility, and drainage improvements. The first phase development would comprise the Hotel and 40 Casitas units, and if the Original Developer could demonstrate that they had secured financing and/or tenant commitments, the remaining Casitas units, the Boutique Hotel and the Restaurants. Once the City approved the foundation for the Hotel, the Original Developer could then commence construction of 20 Affordable Single Family and Courtyard Homes, the Park and the first of the three MOB buildings. When the exterior walls of the Hotel were framed, then the Original Developer could start construction of the second MOB. Finally, when the Hotel was 'IG:\WPDOCS\SumRptCP CtrPt Rev.DOC 2 �4 75% complete (defined as having the exterior wall stucco and the roofs installed), the Original Developer could then commence development of the third MOB. The Original Agreement provided two Property purchase options. The first, Option A, allowed the Original Developer to purchase the entire Property at one time. This Option was developed because the lender or equity investor who funds the land purchase and site improvement activities may require that a lien be recorded against the entire Property to secure this financing. The second purchase option, Option B, allowed the Original Developer to purchase parcels as each development phase (as described in the preceding paragraph) is constructed. This option would be instituted if the Original Developer secured financing that did not require that a lien be recorded against the entire Property to secure funds. In order to improve the Property as economically as possible, the Original Developer desired to mass grade the Property, stabilize the soil, and construct Seeley Drive, and required drainage and utility system improvements. The Original Agreement included provisions that gave the Agency the option to repurchase portions or all of the Property (in the event the Original Developer defaulted, by failing to perform per the terms of the Original Agreement) at the price the Property was sold to the Original Developer plus 33% of the cost of the site improvements, and their associated design and soft costs, or, if the Original Developer had not started construction at the time of the default, the Agency could purchase the land back at the purchase price less 10%. Per the Original Agreement, the Agency must review and approve the user commitments, financing, improvements and construction budget for each development phase. The Original Agreement provided that the Agency would sell the land to the Original Developer at fair market value. The only financial assistance the Agency would provide is $63,000 per unit or $2,520,000 to secure the Affordable One-story Single Family and Courtyard Homes. These funds were to be slated for the Affordable One-story Single Family and Courtyard Homes' pro-rata share of land, site and building plan, engineering, municipal permit and fee, and site improvement costs. The Agency would reimburse the Original Developer for these costs per a schedule included in the Original Agreement; the source of funds will be a portion of the proceeds generated from sale of the other parcels that comprise the Property. When the Affordable One-story Single Family and Courtyard Homes were purchased the Agency assistance would be converted in homebuyer silent second trust deed loans. The second trust deed loans would also feature covenants that require the dwellings to remain affordable to moderate -income family households for 45 years. Further, unlike past Agency second trust deed loans, the covenants would not afford the homeowner the option to sell their dwelling at prevailing market values and release the unit from the affordability covenant. Instead, the homeowner must sell their dwelling to either another qualified buyer or if a qualified household cannot be found, as a last resort to the Agency. G:\WPDOCS\SumRptCP CtrPt Rev.DOC 3 14 715 THE REVISED AGREEMENT On June 3, 2003, the Agency Board and City Council held a duly noticed public hearing to consider the Original Agreement. Pursuant to resolutions adopted by each entity, the Original Agreement was approved. Subsequent to June 3, 2003, the Original Developer requested certain changes to the Original Agreement, including (i) changing the developer entity from the Original Developer to CP Development La Quinta, LLC, a California limited liability company ("Proposed Developer"), (ii) revising the landscaping obligations of the Proposed Developer to account for the possibility that the City does not obtain certain landscaping grants, (iii) revising the Site Plan attached to the Original Agreement and the individual parcel prices set forth therein to reflect the landscaping changes and certain other changes necessitated by the proposed installation of a well - site for the Project, which changes resulted in an increase in the purchase price of Fifty - Five Thousand Five Hundred Sixty Dollars ($55,560), and (iv) revising the insurance requirements for the Proposed Developer. All of the other terms and provisions contained in the Original Agreement remain the same. The Original Agreement, as revised pursuant to the above, is hereinafter referred to as the "Revised Agreement." THE COST OF THE REVISED AGREEMENT TO THE AGENCY To date, the Agency has invested $5,714,789 in the Property; these expenditures are comprised of the initial land purchase cost, the cost to improve Miles Avenue and Washington Street, the costs associated with preparing environmental and planning studies, and the interest expense on the bonds used to purchase the property and fund the other costs. The Proposed Developer will pay $7,109,634 for the Property which will reimburse the 1995 Housing Bond fund for $3,678,305 of non -interest expenses. The Agency will pledge $2,520,000 of this amount to fund the silent second trust deed assistance to the Affordable One-story Single Family and Courtyard Homes, and the remaining $1,158,305 will be pledged to fund some of the costs associated with the Avenue 48 and Adams Street affordable housing development. The specific expenditures were as follows: • Property Purchase Cost - $199779500 • Washington Street/Miles Avenue Improvements - $1,700,805 • Specific Plan and Environment Studies - $175,000 • Adjoining Property Utility System Reimbursement - $95,898 • Interest Expense on the 1995 Housing Bonds - $1,765,586 • Homebuyer Second Trust Deed Mortgages — $2,520,000 GAWPDOCS\SumRptCP CtrPt Rev.DOC 4 15 716 In order sell the Affordable One-story Single Family and Courtyard Homes at costs affordable to moderate -income family households, the Revised Agreement provides that the Agency will fund 40-second trust deed mortgages. The mortgages will cover each dwelling's pro rate share of land ($35,175), architecture and engineering ($7,175), entitlement/municipal fee costs ($11,300), and site improvement costs ($9,350). The Revised Agreement provides that a second trust deed of $40,000 to $63,000 per unit, or an average second trust deed mortgage of $51,500, will be provided to 40 units to permit family households who earn from 81 to 120 percent of the Riverside County median income to purchase these homes. The exact mortgage amount will be determined by the purchase price of each unit. The home prices will range from $216,000 to $251,000. The Agency second trust deeds combined with the homebuyer down payments of 3% will reduce the first trust deed mortgage to $142,000 to $175,000, a level affordable to moderate income family households. The Agency's Redevelopment Consultant has reviewed and verified the costs associated with the Affordable One-story Single Family and Courtyard Homes. The total development cost is projected to be $8,129,700, with sales income projected to be $9,722,000. ESTIMATED VALUE OF INTEREST TO BE CONVEYED The Agency's Redevelopment Consultant reviewed comparable land sales for property designated for commercial, hotel, condominium hotel and single-family uses that was not entitled or improved. This review identified per acre land values ranging from $60,000 to $283,140 per acre depending on size and location. Smaller parcels located in high traffic locations commanded a greater land value. The Revised Agreement provides that the Agency will sell the Hotel, Casitas, Boutique Hotel, MOB and Restaurant parcels to the Proposed Developer for $217,800 per acre; the residential land will be sold for a fair market value of $60,000 per acre. ESTIMATED VALUE OF THE INTEREST TO BE CONVEYED, DETERMINED AT THE USE AND WITH THE CONDITIONS, COVENANTS, AND DEVELOPMENT COSTS REQUIRED BY THE REVISED AGREEMENT The Revised Agreement imposes conditions on the property as required by the City's entitlement and environmental processes (imposed through a development agreement involving the City and the Proposed Developer), and the requirement that the Proposed Developer construct the various uses within the specified time frames presented in the Schedule of Performance. The Revised Agreement also requires the Proposed Developer to construct 40 dwellings that must be sold at affordable housing costs to moderate -income family households and the construction of Seeley Drive and the Park improvements. The Agency's second trust deed mortgage assistance will fund the difference between the sales prices required to fund the cost of developing these units and housing costs that would be affordable to moderate income family households. G:\WPDOCS\SumRptCP CtrPt Rev.DOC 5 f ry 71 EXPLANATION OF WHY THE SALE OF THE PROPERTY PURSUANT TO THE REVISED AGREEMENT WILL ASSIST IN THE ELIMINATION OF BLIGHT The Property conveyance, and construction of the Development, addresses economic blight within Project Area No. 2 by facilitating development of uses that generate economic demand and additional patrons that will frequent Project Area businesses. Further, the conveyance will facilitate the development of dwellings that will increase and improve the supply of affordable housing within La Quinta Redevelopment Project No. 2. Per the Second Five Year Implementation Plan, the Agency has an obligation to facilitate the production of over 1,500 affordable units by 2004. In order to accomplish this task the Agency must provide incentives to private developers and non-profit organizations to construct units that will be affordable to households within the respective income levels. The Property conveyance and the Development will further the Agency's efforts to promote affordable housing development within Project No 2. CONFORMANCE WITH THE AGENCY'S FIVE YEAR IMPLEMENTATION PLAN The Second Five Year Implementation Plan and the Second Amended Housing Affordability Plan identifies a combination of market rate and affordable housing development for the Property. Further, the Implementation Plan identifies the potential for resort and hospitality uses for the Property. The conveyance of the Property and the subsequent development will conform to the provisions of these Plans. A copy of the proposed Revised Agreement is attached to this Report or is available for review at the Community Development Department located at the La Quinta City Hall. The proposed Revised Agreement will be the subject of a joint public hearing and the Agency and City Council on December 2, 2003, at 7:00 p.m. in the City Council Chambers are located at the La Quinta City Hall, 78-495 Calle Tampico, La Quinta, California. 1� G:\WPDOCS\SumRptCP CtrPt Rev.DOC 6 (� RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Clerk 394/015610-0061 390243.11 all/21/03 ATTALCHMENT li3 Space Above This Line for Recorder's Use (Exempt from Recording Fee per Gov't Code § 6103) DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF LA QUINTA AND CP DEVELOPMENT LA QUINTA, LLC 19 -1- 719 TABLE OF CONTENTS Pap-e 1.0 GENERAL........................................................................................................................ 3 1.1 Term...................................................................................................................... 3 1.2 Effective Date.......................................................................................................3 1.3 Amendment or Cancellation.................................................................................3 1.4 Termination.......................................:..................................................................3 2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF THE PROJECT........................................................................... 3 2.1 Right to Develop...................................................................................................3 2.2 Additional Applicable Codes and Regulations..................................................... 4 2.3 Permitted Density, Height and Use Limitations................................................... 5 3.0 DEVELOPER'S OBLIGATIONS.................................................................................... 5 3.1 Development of the Project; Planned Development.............................................5 3.2 Conditions of Approval......................................................................................... 3.3 Covenants, Conditions and Restrictions...............................................................6 3.3.1 Recordation of Covenants, Conditions and Restrictions and Establishment of Casitas Development Homeowner Association................................................................................................ 6 3.3.2 Recordation of Covenants, Conditions and Restrictions and Establishment of Sanctuary Villas Development Homeowner Association................................................................................................ 7 3.4 Payments to City by Developer............................................................................7 3.4.1 General......................................................................................................7 3.4.2 Developer's Payments of One -Time Mitigation Fees ..............................7 3.4.3 Casitas Development Annual Mitigation Fee; Termination ..................... 8 3.4.4 Sanctuary Villas Development Annual Mitigation Fee; Termination............................................................................................... 8 3.4.5 Payment of Casitas Development Public Facilities Fee...........................9 3.4.6 Payment of Sanctuary Villas Development Public Facilities Fee ............ 9 3.4.7 Consumer Price Index Adjustments..........................................................9 3.4.8 Termination of Sanctuary Villas Development Fees..............................10 3.4.9 Landscape Improvements Payment........................................................10 3.4.10 Other Fees and Charges; Assessment Appeals.......................................11 3.5 Park Improvements.............................................................................................11 3.6 Dedications and Improvements...........................................................................11 3.7 Indemnification...................................................................................................11 3.8 Insurance.............................................................................................................12 4.0 CITY' S OBLIGATIONS................................................................................................13 4.1 Scope of Subsequent Review/Confirmation of Compliance Process.................13 4.2 Project Approvals Independent...........................................................................14 4.3 Review for Compliance......................................................................................14 394/015610-0061 > 390243.11 all/21/03 12 Pam 5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION....................................................14 5.1 Notice of Default..........................................................................14 5.2 Cure of Default...................................................................................................14 5.3 City Remedies.....................................................................................................15 5.4 Developer's Exclusive Remedy.... ............................... o ............. o ............ o ........... 15 6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.................................15 6.1 Encumbrances on the Project Site......................................................................15 6.2 Mortgage Protection............................................................................................16 6.3 Mortgagee Not Obligated...................................................................................16 6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................16 7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT.........................................17 7.1 Prohibition...........................................................................................................17 7.2 Transfers Prior to Completion of Project............................................................17 7.3 Assignment and Assumption of Obligations......................................................18 7.4 Successors and Assigns.......................................................................................18 7.5 Assignment by City.............................................................................................18 8.0 MISCELLANEOUS.......................................................................................................18 8.1 Notices................................................................................................................18 8.2 Force Majeure.....................................................................................................19 8.3 Binding Effect.....................................................................................................20 8.4 Independent Entity..............................................................................................20 8.5 Agreement Not to Benefit Third Parties............................................................. 20 8.6 Covenants............................................................................................................20 8.7 Nonliability of City Officers and Employees.....................................................20 8.8 Covenant Against Discrimination.......................................................................21 8.9 Amendment of Agreement..................................................................................21 8.10 No Waiver...........................................................................................................21 8.11 Severability.........................................................................................................21 8.12 Cooperation in Carrying Out Agreement............................................................21 8.13 Estoppel Certificate.............................................................................................21 8.14 Construction........................................................................................................22 8.15 Recordation.........................................................................................................22 8.16 Captions and References.....................................................................................22 8.17 Time....................................................................................................................22 8.18 Recitals & Exhibits Incorporated; Entire Agreement.........................................22 8.19 Exhibits...............................................................................................................22 8.20 Counterpart Signature Pages...............................................................................23 8.21 Authority to Execute...........................................................................................23 8.22 Governing Law; Litigation Matters....................................................................23 8.23 No Brokers..........................................................................................................23 394/015610-0061 390243.11 all/21/03 2 1. 7 2.1 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of the day of , 2003 ("Reference Date"), by and between the CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the Constitution of the State of the California (the "City"), and CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company (the "Developer"), with reference to the following: RECITALS: A. Government Code Sections 65864-65869.5 ("Development Agreement Act") authorize the City to enter into a binding development agreement for the development of real property within its jurisdiction with persons having legal or equitable interest in such real property. B. Pursuant to Section 65865 of the Government Code, the City has adopted its Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing procedures and requirements for such development agreements ("Development Agreement Ordinance"). C. Prior to or concurrently with the execution of this Agreement, Developer has entered into a Disposition and Development Agreement (the "DDA") with the La Quinta Redevelopment Agency ("Agency"), pursuant to which (1) the Agency, subject to the terms and conditions set forth in the DDA, has agreed to sell to the Developer, in one or more phases, certain real property located within the City southeast of the Miles Avenue and Washington Street intersection which is legally described in Exhibit A-1 attached hereto and shown on the Site Map attached hereto as Exhibit A-2 (the "Site"); and (2) the Developer has agreed to construct on the Site the "Project," which will consist of a mixed use residential and commercial development, and other permitted uses. The Project is more fully described in, and subject to (i) this Agreement, (ii) the Center Point Specific Plan, also known as Specific Plan No. SP2001-055 as amended by City Council Resolution No. 2003-035 on June 3, 2003 ("Specific Plan"); (iii) the DDA, (iv) the Mitigated Negative Declaration prepared for the Project, dated December 5, 2001, as amended by the Addendum to Mitigated Negative Declaration, approved by the City Council on June 3, 2003, by City Council Resolution No. 2003-035 (collectively, the "Revised Mitigated Negative Declaration"); (v) any future Site Development Permits issued for the Project, including all conditions of approval attached thereto (collectively, the "Project Site Development Permits"); (vi) any future Tract Maps approved for the Project, including all conditions of approval thereto (collectively, the "Project Tract Maps"); and (vii) the conditions of approval associated with each and all of the foregoing approvals (collectively, the "Conditions of Approval"). The documents described in the foregoing clauses (i)-(vi) are collectively referred to herein as the "Development Plan," and are, or when approved or issued shall be, on file with the City Clerk. D. By virtue of the DDA, as of the execution of this Agreement, the Developer has an equitable interest in the Site. By its execution of the consent form attached to this Agreement, the Agency consents to recordation of this Agreement against the Site. 394/015610-0061 390243.11 al1/21/03 —1— �l,L� E. Consistent with Section 9.250.030 of the La Quinta Municipal Code, City and Developer desire to enter into a binding agreement for. purposes of (i) identifying the terms, conditions, and regulations for the construction of the Project, certain components of which constitute a Planned Development (as defined in Civil Code Section 1351(k)); (ii) setting forth a payment schedule for the Developer's payment to the City of certain amounts designed to compensate the City in the event that certain components of the Project fail to generate specified levels of transient occupancy tax (as that term is used in La Quinta Municipal Code Chapter 3.24) (hereinafter, "transient occupancy tax" or "TOT"); (iii) setting forth a payment schedule for the Developer's payment to the City of Three Hundred Forty -Six Thousand Eleven Dollars ($346,011), to cover the Developer's contribution towards the cost of certain landscaping improvements the City desires to install within certain portions of the real property adjacent to the Site; (iv) requiring the Developer, at its sole cost, to construct a neighborhood park on certain real property owned in fee by the City; and (v) setting forth the extent to which Developer may construct, develop, use and operate the Project. F. Among other purposes, this Agreement is intended to be, and shall be construed as, a development agreement within the meaning of the Development Agreement Act. This Agreement will eliminate uncertainty in planning for and secure the orderly development of the Project, ensure a desirable and functional community environment, provide effective and efficient development of public facilities, infrastructure, and services appropriate for the development of the Project, and assure attainment of the maximum effective utilization of resources within the City, by achieving the goals and purposes of the Development Agreement Act. In exchange for these benefits to City, Developer desires to receive the assurance that they may proceed with development of the Project in accordance with the terms and conditions of this Agreement and the Development Plan, all as more particularly set forth herein. G. The City Council has determined that the Project and this Agreement are consistent with the City's General Plan and the Specific Plan, including the goals and objectives thereof. H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters. I. On June 17, 2003, the City Council adopted its Ordinance No. 385 approving this Agreement. AGREEMENT. - NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties do hereby agree as follows: 39"15610-0061 _ _ 3 390243.11 all/21/03 2 r% r% .'... 1.0 GENERAL 1.1 Term. The term of this Agreement shall commence on the Effective Date hereof and shall continue for fifty (50) years thereafter, unless said term is otherwise terminated, modified, or extended by circumstances set forth in this Agreement or by mutual consent of the parties hereto after the satisfaction of all applicable public hearing and related procedural requirements. 1.2 Effective Date. This Agreement shall be effective, and the obligations of the parties hereunder shall be effective, as of July 17, 2003, which is the date that Ordinance No. 385 takes effect ("Effective Date"). 1.3 Amendment or Cancellation. Except as expressly stated to the contrary herein, this Agreement may be amended or canceled in whole or in part only by mutual consent of the parties and in the manner provided for in Government Code Section 65867-65868 and the City's Development Agreement Ordinance. 1.4 Termination. Unless terminated earlier, pursuant to the terms hereof, this Agreement shall automatically terminate and be of no further effect upon the expiration of the Term of this Agreement as set forth in Section 1.1. Termination of this Agreement, for any reason, shall not, by itself, affect any right or duty arising from entitlements or approvals set forth under the Development Plan, as defined in Section 2.1, below. Notwithstanding anything herein to the contrary, in the event the "Initial Escrow" or the "Property Escrow" (as those terms are defined in the DDA), as applicable, fail to close within the time set forth in the DDA, as such time may be extended pursuant to the terms of the DDA, this Agreement shall automatically terminate and the Developer and City agree to execute and record such document as the Title Company (defined in the DDA) reasonably requires to remove this Agreement of record. 2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF THE PROJECT 2.1 Right to Develou. Subject to the terms, conditions, and covenants of this Agreement, Developer's right to develop the Project in accordance with the Development Plan (and subject to the Conditions of Approval which, among other Conditions of Approval associated with future approvals and permits issued by the City, includes but is not limited to the Conditions of Approval set forth in Exhibit "B" attached hereto) shall be deemed vested upon approval of the Development Plan, which vesting shall expire upon the earlier of the following occurrences: (a) termination of this Agreement; (b) termination of the DDA; (c) an uncured material default by Developer of this Agreement or the DDA; (d) as to a particular phase, parcel, or lot comprising a portion of the 394/015610-0061 r� 0 390243.11 all/21/03 `' Site, the earlier of the final approved City inspection of the completed development on such phase, parcel, or lot or the issuance by City of a certificate of occupancy for such phase, parcel, or lot; or (e) as to a particular phase, parcel, lot comprising a portion of the Site, the date set forth in the DDA when Developer was required to have completed the development of' all improvements on such phase, parcel, or lot. Except for the expiration set forth in clause (a) of the preceding sentence, the expiration of the vesting right set forth in the preceding sentence shall not terminate the obligations of Developer under this Agreement. Notwithstanding anything in this Agreement to the contrary, the Project shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees existing on the Effective Date of this Agreement (collectively, the "Existing Development Regulations"); (ii) all amendments or modifications to Existing Development Regulations after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or applied by the City (or if optional the failure to adopt or apply such non -City law or regulation would cause City to sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws the City reserves the right to apply under this Agreement, including but not limited to Sections 2.2 and 3.4.10; (ili) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to Site Development Permits, Project Tract Maps, and building permits, (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable, and (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid. 2.2 Additional Applicable Codes and Regulations Notwithstanding any other provision of this Agreement, City also reserves the right to apply the following to the development of the Project: 2.2.1 Building, electrical, mechanical, fire and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the La Quinta Municipal Code, as existing on the Effective Date of this Agreement or as may be enacted or amended thereafter, applied to the Project in a nondiscriminatory manner. 394/015610-0061 3%243.11 all/21/03 -4- J 2.2.2 In the event of fire or other casualty requiring construction of more than fifty (50%) percent of any building previously constructed hereunder, nothing herein shall prevent the City from applying to such reconstruction all requirements of the City's Building, Electrical, Mechanical, and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely to the extent applicable to all development projects in the City. 2.2.3 This Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, including existing development impact fees, including but not limited to the Community Facility Fees, as discussed in 3.4 below, and to apply such new or increased fees to the Project or applicable portion thereof where such new or increased fees may be charged. 2.3 Permitted Density, Heieht and Use Limitations. The permitted uses, density and intensity of use, location of uses, maximum height and size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall be those set forth in the Development Plan and this Agreement, whichever is the strictest. 3.0 DEVELOPER'S OBLIGATIONS 3.1 Development of the Project; Planned Development. Developer shall construct the Project on the Site in accordance with the Development Plan. The Project shall consist of a mixed -use residential and commercial development with the following components: (A) a mid -price suites hotel containing approximately one hundred thirty-four (134) guest rooms ("Suites Hotel") to be constructed on a portion of the Site, as depicted on the Site Map (the "Suites Hotel Parcel"); (B) a resort -style condominium/casitas project containing approximately one hundred thirty-six (136) condominium/casitas units ("Casitas Development") to be constructed on a portion of the Site, as depicted on the Site Map (the "Casitas Development Parcel(s)"); (C) a residential development containing approximately thirteen (13) "courtyard cluster villas" homes ("Villas Residential Development") to be constructed on a portion of the Site, as depicted on the Site Map (the "Villas Residential Development Parcel"); (D) a residential development containing approximately fifty-four (54) homes consisting of approximately twenty-nine (29) "Courtyard Cluster Homes" and approximately twenty-five (25) "Perimeter Homes" (collectively, the "Cluster/Perimeter Residential Development"), to be constructed on a portion of the Site, as depicted on the Site Map ("Cluster/Perimeter Residential Development Parcel"), with (i) fourteen (14) of the homes ("Unrestricted Cluster/Perimeter Component") within the Cluster/Perimeter Residential Development to be sold on a market rate basis; and 394/015610-0061 390243.11 all/21/03 ti (ii) forty (40) of the homes ("Affordable Housing Component") within the Cluster/Perimeter Residential Development to be marketed and sold to moderate income buyers at an affordable housing cost (as those terms are defined in Health & Safety Code Section 50093); (E) two (2) restaurants (the "Restaurants"); (F) a medical office/surgical facility ("Medical Office/Surgical Facility") to be constructed on a portion of the Site (the "Medical/Office/Surgical Facility Parcel(s)"); and (G) a development containing approximately twenty-six (26) sanctuary villas ("Sanctuary Villas Development") to be constructed on a portion of the Site, as depicted on the Site Map (the "Sanctuary Villas Parcel(s)"); The Site Map is not a tract map and the parcels depicted there are not legal parcels. Upon Developer's preparation of a tract map that creates legal parcels substantially consistent with the Site Map, Developer shall prepare legal descriptions for each of the Suites Hotel Parcel, the Casitas Development Parcel(s), the Villas Residential Development Parcel, the Cluster/Perimeter Residential Development Parcel, the Medical Office/Surgical Facility Parcel(s), and the Sanctuary Villas Parcel(s), and Agency and Developer shall cooperate to attach such legal descriptions to any document where such legal descriptions are required. The Villas Residential Development, the Cluster/Perimeter Residential Development, the Sanctuary Villas Development, and the Casitas Development shall each constitute a Planned Development, and shall be developed and operated in compliance with Section 1350, et seq. of the Civil Code. 3.2 Conditions of Approval. The Conditions of Approval attached hereto as Exhibit "B" include and incorporate the mitigation measures of the Revised Mitigated Negative Declaration so that significant environmental effects will be mitigated or avoided. The Developer shall also comply with the mitigation monitoring program set forth in Exhibit "C" attached hereto (the "Mitigation Monitoring Program"). Developer acknowledges that additional Conditions of Approval beyond those set forth in Exhibit `B" may be applicable to the Project if and as associated with future Project approvals including but not limited to Site Development Permits and Project Tract Maps. 3.3 Covenants, Conditions and Restrictions. 3.3.1 Recordation of Covenants, Conditions and Restrictions and Establish- ment of Casitas Development Homeowner Association. Prior to, and as a condition of, the City's issuance of any building permits for the Casitas Development, the Developer shall submit to the City, obtain approval thereof, and record, covenants, conditions and restrictions against the Casitas Development Parcel which, in addition to the obligations set forth in the Conditions of Approval, shall (i) establish a homeowner's association for the Casitas Development (the "Casitas Development HOA"); (ii) provide for the Casitas Development HOA's payment of the fees described in Sections 3.4.3 and 3.4.5; and (iii) provide for the rental of each of the units in the Casitas Development through a national 394/015610-0061 390243.11 all/21/03 -6- ! �„ 7 reservation system (unless Developer provides to the reasonable satisfaction of the City a written, final, and binding determination by a governmental authority with jurisdiction, or the written opinion, subject only to reasonable qualifications, of a qualified legal counsel, that requiring the rental of units in the Casitas Development through a national reservation system would mandate registration of the Casitas Development or the sale of such units as a "security" within the meaning of applicable federal or state law or regulation). 3.3.2 Recordation of Covenants, Conditions and Restrictions and Establishment of Sanctuary Villas Development Homeowner Association. Prior to, and as a condition of, the City's issuance of any building permits for the Sanctuary Villas Development, the Developer shall submit to the City, obtain approval thereof, and record, covenants, conditions and restrictions against the Sanctuary Villas Parcels which, in addition to the obligations set forth in the Conditions of Approval, shall (i) establish a homeowner's association for the Sanctuary Villas Development (the "Sanctuary Villas Development HOA"); (ii) provide for the Sanctuary Villas Development HOA's payment of the fees described in Sections 3.4.4 and 3.4.6; and (iii) provide for the rental of each of the units in the Sanctuary Villas Development through a national reservation system (unless Developer provides to the reasonable satisfaction of the City a written, final, and binding determination by a governmental authority with jurisdiction, or the written opinion of a qualified legal counsel, subject only to reasonable qualifications, that requiring the rental of units in the Sanctuary Villas Development through a national reservation system would mandate registration of the Sanctuary Villas Development or the sale of such units as a "security" within the meaning of applicable federal or state law or regulation). 3.4 Payments to City by Developer. 3.4.1 General. During the Term of this Agreement, Developer or the applicable HOA, as applicable, shall make the payments to City described in this Section 3.4. The payments under this Section 3.4 are not the exclusive development impact fees for the Project and nothing in this Section 3.4 shall be construed as a limitation on the right of the City to impose, levy, or assess the Site other development fees as permitted by applicable law. 3.4.2 Developer's Payments of One -Time Mitigation Fees. a. Developer shall pay to the City, for each unit in the Casitas Development, with such payment due upon the first close of escrow for each such unit, the sum of One Thousand Five Hundred Dollars ($1,500). b. Developer shall pay to the City, for each unit in the Sanctuary Villas Development, with such payment due upon the first close of escrow for each such unit, the sum of Two Thousand One Hundred Fifty Dollars ($2,150). 394/015610-0061 -7- f 390243.11 all/21/03 3.4.3 Casitas Development Annual Mitigation Fee; Termination. During the term of this Agreement, on each July 1st following the Effective Date ("Annual Mitigation Payment Date"), the Casitas Development HOA shall pay to the City an annual mitigation fee ("Casitas Development Annual Mitigation Fee") covering the annual period of the prior July 1 through the June 30 occurring immediately preceding the Annual Mitigation Payment Date (the "Operative Year") [provided, however, the first Operative Year shall commence on the Effective Date of this Agreement and end on the next occurring June 30). The Casitas Development Annual Mitigation Fee shall be the collective sum of One Hundred Fifty Dollars ($150) [as the same may increase by the CPI in accordance with Section 3.4.7] for each unit ("Casitas Development Unit Fee") in the Casitas Development that has been sold to a purchaser, as evidenced by the close of escrow for such unit, prior to the applicable Annual Mitigation Payment Date regardless of when or in which Operative Year the unit was sold. Notwithstanding anything herein to the contrary, the Casitas Development Annual Mitigation Fee shall not be required to be paid for any Operative Year in which the City has received transient occupancy taxes derived from, collectively, the Suites Hotel Parcel, the Casitas Development Parcel, and the Sanctuary Villas Parcel, which equals or exceeds Five Hundred Forty -Six Thousand One Hundred Thirty -One Dollars ($546,131.00) [as the same may increase by the CPI in accordance with Section 3.4.7] (the "Minimum Annual TOT Amount") for the applicable Operative Year. Notwithstanding the paragraph above, if the City has received the Minimum Annual TOT Amount in each of three (3) consecutive Operative Years, the Casitas Development HOA's obligation to pay the Casitas Development Annual Mitigation Fee shall be terminated and shall be of no further force or effect. 3.4.4 Sanctuary Villas Development Annual Mitigation Fee; Termination. During the term of this Agreement, on each Annual Mitigation Payment Date, the Sanctuary Villas Development HOA shall pay to the City an annual mitigation fee ("Sanctuary Villas Development Annual Mitigation Fee") covering the annual period of the prior July 1 through the June 30 occurring immediately preceding the Annual Mitigation Payment Date (the "Operative Year") [provided, however, the first Operative Year shall. commence on the Effective Date of this Agreement and end on the next occurring June 30). The Sanctuary Villas Development Annual Mitigation Fee shall be the collective sum -of One Hundred Fifty Dollars ($150) ) [as the same may increase by the CPI in accordance with Section 3.4.7] for each unit ("Sanctuary Villas Development Unit Fee") in the Sanctuary Villas Development that has been sold to a purchaser, as evidenced by the close of escrow for such unit, regardless of when or in which Operative Year the unit was sold. Notwithstanding anything herein to the contrary, the Sanctuary Villas Development Annual Mitigation Fee shall not be required to be paid for any Operative Year in which the City has received transient occupancy taxes derived from, collectively, the Suites Hotel Parcel, the Casitas Development Parcel, and the Sanctuary Villas Parcel, which equals or exceeds the Minimum Annual TOT Amount for the applicable Operative Year. Notwithstanding the paragraph above, if the City has received the Minimum Annual TOT Amount in each of three (3) consecutive Operative Years, the Sanctuary Villas Development 0 394/015610-0061 -g- � �l 3%243.11 a11/21/03 7 49 HOA's obligation to pay the Sanctuary Villas Development Annual Mitigation Fee shall be terminated and shall be of no further force or effect. 3.4.5 Payment of Casitas Development Public Facilities Fee. In addition to the other payments required to be paid pursuant to this Section 3.4, the Casitas Development HOA shall be required to pay to the City the sum of five percent (5%) of any rental amount charged for occupancy of a unit in the Casitas Development which is rented for a period of more than thirty (30) days (the "Casitas Development Public Facilities Fee"). The Casitas Development Public Facilities Fee shall be due and payable to the City within thirty (30) days after any such occupancy terminates, regardless of whether the rent, or any amount thereof, was collected. If the unit is provided free of charge or at a discount, as consideration for a service provided to the owner of the unit or to the Casitas Development HOA and/or for promotional or marketing purposes, the rent shall be deemed to be the higher of (i) the value of the services received; or (ii) the average rent of all of the units in the Casitas Development during the period the unit was provided. Notwithstanding the foregoing, the requirement to pay the Casitas Development Public Facilities Fee shall not apply in the case where an owner of a Casitas Development unit provides his or her Casitas Development unit to a person who is a relative of the owner, for no consideration, for a period of more than thirty (30) days. 3.4.6 Payment of Sanctuary Villas Development Public Facilities Fee. In addition to the other payments required to be paid pursuant to this Section 3.4, the Sanctuary Villas Development HOA shall be required to pay to the City the sum of five percent (5%) of any rental amount charged for occupancy of a unit in the Sanctuary Villas Development which is rented for a period of more than thirty (30) days (the "Sanctuary Villas Development Public Facilities Fee"). The Sanctuary Villas Development Facilities Fee shall be due and payable to the City within thirty (30) days after any such occupancy terminates, regardless of whether the rent, or any amount thereof, was collected. If the unit is provided free of charge or at a discount, as consideration for a service provided to the owner of the unit or to the Sanctuary Villas Development HOA and/or for promotional or marketing purposes, the rent shall be deemed to be the higher of (i) the value of the services received; or (ii) the average rent of all of the units in the Sanctuary Villas Development during the period the unit was provided. Notwithstanding the foregoing, the requirement to pay the Sanctuary Villas Development Public Facilities Fee shall not apply in the case where an owner of a Sanctuary Villas Development unit provides his or her Sanctuary Villas Development unit to a relative of the owner, for no consideration, for a period of more than thirty (30) days. 3.4.7 Consumer Price Index Adjustments. Each of the Casitas Development Annual Mitigation Fee, the Casitas Development Unit Fee, the Sanctuary Villas Development Annual Mitigation Fee, the Sanctuary Villas Development Unit Fee, and the Minimum Annual TOT Amount shall be adjusted annually, on each May 1st during the term of this Agreement, by the Consumer Price Index for Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County average, All Items, 1982- 84 = 100, published by the United States Department of Labor, Bureau of Labor Statistics (the "CPI"), by comparing the CPI existing on the immediately prior March 1st to the CPI existing on the March 1st of the previous year. No adjustment shall be made in any year in which there has 394/015610-0061 -9- rf N 390243.11 a1121/03 been a decrease in the CPI. If the CPI is no longer published at any point during the Term of this Agreement, a comparable index shall be selected by the parties. 3.4.8 Termination of Sanctuary Villas Development Fees. In the event that, after the Developer constructs the Casitas Development, the escrow pursuant to which the Developer is to acquire the Sanctuary Villas Parcel(s) from the La Quinta Redevelopment Agency is terminated, or the City has . otherwise determined that the Developer will not construct the Sanctuary Villas Development, the City and Developer agree to execute and record any document reasonably required by the Riverside County Recorder's Office to terminate the provisions contained in this Development Agreement as they pertain to the Sanctuary Villas Development. From and after such termination the Developer shall have no rights or obligations under this Agreement with respect to the Sanctuary Villas Parcel(s). 3.4.9 Landscape Improvements Payment. The City has applied for various grants (collectively, the "Landscape Grants") to partially fund the cost of certain landscaping improvements (the "Landscaping Improvements") the City desires to make to certain portions of the real property adjacent to the Site (the "Agency Landscape Property"). The Landscape Improvements are estimated to cost approximately Nine Hundred Eleven Thousand Two Hundred Forty -Six Dollars ($911,246). The Developer's contribution towards the Landscape Improvements is Three Hundred Forty -Six Thousand Eleven Dollars ($346,011) (the "Developer's Contribution"). In the event the City obtains the Landscape Grants, Developer shall pay to the City the Developer's Contribution, pursuant to the following: (i) Developer shall pay to City One Hundred Fifteen Thousand Three Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow pursuant to which the Developer will purchase the real property on which the Developer will construct the Suites Hotel; (ii) Developer shall pay to City One Hundred Fifteen Thousand Three Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow pursuant to which the Developer will purchase the Sanctuary Villas Parcel(s); and (iii) Developer shall pay to City One Hundred Fifteen Thousand Three Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow pursuant to which the Developer will purchase the first of the Cluster/Perimeter Residential Development Parcel or Villas Residential Parcel. Notwithstanding the payment schedule outlined above, the full amount of the Developer's Contribution shall be due and payable to the City on or before May 20, 2004. Notwithstanding anything in this Agreement to the contrary, if the City does not obtain the Landscape Grants, (i) City shall not be obligated to construct the Landscape Improvements, (ii) Developer shall not be obligated to pay to City the Developer's Contribution, and (iii) Developer shall be obligated to construct on the Agency Landscape Property the landscape improvements set forth in the Landscaping Plan that was approved as part of the various Site Development Permits for the Project, in accordance with Section 312 of the DDA. 394/015610-0061 -1 O- 390243.11 all/21/03 7? 1 3.4.10 Other Fees and Charges; Assessment Appeals. Nothing set forth in this Agreement is intended or shall be construed to limit or restrict the City's authority to impose its existing, or any new or increased, fees, charges, levies, or assessments for the development of the Site, or to impose or increase, subject to the required procedure, any taxes applicable to the Site including but not limited to transient occupancy taxes, provided nothing set forth herein, subject to the next sentence, is intended or shall be construed to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge, levy, assessment, or tax imposed. Developer agrees that it shall not to take any action, including any assessment appeal, to decrease the assessed value of any of the Site or any portion thereof below the final assessed value at the time the development of the Site or separate parcel thereof is completed; provided, however, the foregoing restriction on challenging or appealing assessments shall not apply to individual homeowners who have purchased units on the Villas Residential Development Parcel or the Cluster/Perimeter Residential Development Parcel. Developer shall timely pay all applicable fees, charges, levies, assessments, and special and general taxes validly imposed in accordance with the Constitution and laws of the State of California, including without limitation school impact fees in accordance with Government Code § § 65995, et seq. 3.5 Park Improvements. Developer agrees to develop a neighborhood park on that certain City -owned property, which is identified as "Lot 6" in the Site Map (the "City Park Property"), in accordance with the list of park improvements set forth in Exhibit "D" hereto (the "Park Improvements") and all applicable City and State laws and regulations. Prior to Developer's entry onto the City Park Property, Developer shall enter into an Early Entry Agreement with the City substantially in the form of which is attached hereto as Exhibit "E". The Park Improvements shall be completed and accepted by the City prior to, and as a condition of, the City's final inspection of the first unit in the earlier of the Villas Residential Development Parcel or the Cluster/Perimeter Residential Development Parcel. 3.6 Dedications and Improvements. Developer shall offer dedications to the City or other applicable public agency, or complete those public improvements in connection with the Project, as specified in the Conditions of Approval. 3.7 Indemnification. a. The Developer agrees to and shall indemnify, hold harmless, and defend, the City and the Agency and their respective officers, officials, members, agents, employees, and representatives, from liability or claims for death or personal injury and claims for property damage which may arise from the acts, errors, and/or omissions of the Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to the Project and/or this Agreement. The foregoing indemnity applies to all deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of the acts, errors, and/or omissions referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both, and regardless of whether or not 394/015610-0061 390243.11 all/21/03 the insurance policies referred to in this Agreement are applicable. In the event of litigation, the City agrees, at no cost to the City, to cooperate with the Developer. b. In the event of any court action or proceeding challenging the validity of this Agreement or the Revised Mitigated Negative Declaration, the Developer shall indemnify, hold harmless, pay all costs and provide defense for the City in said action or proceeding with counsel chosen by Developer and reasonably approved by the City. The City shall, at no cost to the City, cooperate with the Developer in any such defense as Developer may reasonably request. In the event the Developer fails or refuses to provide such defense of any challenge to this Agreement or the Revised Mitigated Negative Declaration, City shall have the right not to defend such challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including terminating this Agreement. 3.8 Insurance. Before beginning construction on the Site, the Developer shall cause the insurance required under this paragraph to be issued and thereafter to be maintained until one (1) year following the later of (i) the date City issues the last certificate of occupancy needed for the initial occupancy of the last portion of the Project, or (ii) the date the City signs off on the last final inspection of the last of the Project improvements. Developer shall procure and maintain: a, A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than: (A) for death and bodily injury, either (i) a combined single limit of Three Million Dollars ($3,000,000) or (ii) Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000) in the aggregate, and (B) for property damage, Three Million Dollars ($3,000,000) per occurrence. b. A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Developer and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Developer in the course of carrying out the work or services contemplated in this Agreement. C. A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and property damage liability limits of Three Million Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit liability of Three Million Dollars ($3,000,000). Said policy shall include coverage for owned, non -owned, leased, and hired cars. The following additional requirements shall apply to all of the above policies of insurance: �?3 394/015610-0061 —12— 33 390243.11 all/21/03 (i) All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, the Agency, and their respective officers, officials, members, employees, agents, and representatives as additional insureds. (ii) The insurer shall waive all rights of subrogation and contribution it may have against City, Agency, and their respective officers, officials, members, employees, agents, and representatives, and their respective insurers. (iii) All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. (iv) The policies of insurance required by this Agreement shall not require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless approved in writing by the City Manager in his or her sole and absolute discretion. In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. Not later than the Reference Date of this Agreement, Developer shall provide the City Manager with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the City Manager. Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 3.7 or the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 4.0 CITY'S OBLIGATIONS 4.1 Scope of Subsequent Review/Confirmation of Compliance Process. Nothing set forth herein shall impair or interfere with the right of the City to require the processing of building permits as required by law pursuant to the applicable provisions of the La Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes. Prior to each request for a building permit, Developer shall provide City with a Compliance Certificate ("Certificate") in a form created by Developer and approved by the City, which shall describe how all applicable Conditions of Approval have been fully complied with. The Certificate shall be distributed to relevant City departments for checking the representations made by Developer on the Certificate. r, _-1 4 394/015610-0061 -13- 34 390243.11 all/21/03 4.2 Project Approvals Independent. All approvals required for the Project which may be or have been granted, and all land use entitlements or approvals generally which have been issued or will be issued by the City with respect to the Project, constitute independent actions and approvals by the City. If any provision of this Agreement or the application of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement terminates for any reason, then such invalidity, unenforceability or termination of this Agreement or any part hereof shall not affect the validity or effectiveness of any such Project approvals or other land use approvals and entitlements. In such cases, such approvals and entitlements will remain in effect pursuant to their own terms, provisions, and the Conditions of Approval. It is understood by the parties to this Agreement that pursuant to existing law, if this Agreement terminates or is held invalid or unenforceable as described above, such approvals and entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the term of such approvals and entitlements. 4.3 Review for Compliance. The City shall review this Agreement at least once during every twelve (12) month period following the Effective Date of this Agreement, in accordance with the City's procedures and standards for such review set forth in the City's Development Agreement Ordinance. During such periodic review by the City, the Developer, upon written request from City, shall be required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with the terms hereof. The failure of the City to conduct or complete the annual review as provided herein or in accordance with the Development Agreement Act shall not impact the validity of this Agreement. If, at the conclusion of the annual review provided for herein, Developer shall have been found in compliance with this Agreement, City, through the City's Community Development Director, shall, at Developer's written request, issue a Certificate of Compliance to Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in compliance with this Agreement. The Certificate of Compliance shall be in recordable form, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer, at its option and sole cost, may record the Certificate of Compliance. 5.0 DEFAULT; REMEDIES, DISPUTE RESOLUTION. 5.1 Notice of Default. In the event of failure by either party hereto substantially to perform any material term or provision of this Agreement, the non -defaulting party shall have those rights and remedies provided herein, provided that such non -defaulting party has first provided to the defaulting party a written notice of default in the manner required by Section 8.1 hereof identifying with specificity the nature of the alleged default and the manner in which said default may satisfactorily be cured. 5.2 Cure of Default. Upon the receipt of the notice of default, the alleged defaulting party shall promptly commence to cure, correct, or remedy the identified default at the earliest reasonable time after receipt of the notice of default and shall complete the cure, correction or remedy of such default 394/015610-0061 3%243.11 all/21/03 -14- 5 7% 5 not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied within five (5) days [or thirty (30) days for non -monetary defaults], such party shall commence to cure, correct, or remedy such default within such five (5) day period [or thirty (30) day period for non -monetary defaults], shall and continuously and diligently prosecute such cure, correction or remedy to completion. 5.3 City Remedies. In the event of an uncured default by Developer of the terms of this Agreement, the City, at its option, may institute legal action in law or in equity to cure, correct, or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement; provided, however, that (i) City and Developer agree that City's right to pursue damages is limited to the then -outstanding loan balance under that certain Note, executed by Developer, as "Maker," in favor of Agency, as "Holder," pursuant to the DDA, and (ii) in no event shall City be entitled to consequential damages for any Developer default. For purposes of this Agreement the term "consequential damages" shall include, but not be limited to, potential loss of anticipated tax revenues from the Project or any portion thereof. Furthermore, the City, in addition to or as an alternative to exercising the remedies set forth in this Section 5.3, in the event of a material default by Developer, may give notice of its intent to terminate or modify this Agreement pursuant to the City's Development Agreement Ordinance and/or the Development Agreement Act, in which event the matter shall be scheduled for consideration and review by the City Council in the manner set forth in the City's Development Agreement Ordinance or the Development Agreement Act. 5.4 Developer's Exclusive Remedy. The parties acknowledge that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or any of the matters referred to herein including but not limited to the Development Plan, Conditions of Approvals, the Existing Development Regulations or any future amendments or enactments thereto, or the Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself and its successors and assigns, not to sue the City for damages or monetary relief for any breach of this Agreement by City or arising out of or connected with any dispute, controversy, or issue between Developer and City regarding this Agreement or any of the matters referred to herein including but not limited to the application, interpretation, or effect of this Agreement, the Development Plan, the Conditions of Approval, the Existing Development Regulations or nay future amendment or enactments thereto, or any land use permit or approval sought in connection with the development of the Project or any component thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be'Developer's sole and exclusive judicial remedies. 6.0 MORTGAGEE PROTECTION: CERTAIN RIGHTS OF CURE 6.1 Encumbrances on the Project Site. This Agreement shall not prevent or limit the Developer from encumbering the Site or any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and 394/015610-0061 -15- 390243.11 all/21/03 36 7 :� v [3 leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and fair value (a "Mortgage") securing financing with respect to the construction, development, use or operation of the Project. 6.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and conditions of this Agreement. 6.3 Mortgagee Not Obligated. No Mortgagee will have any obligation or duty under this Agreement to perform the obligations of the Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to develop or operate the Site, and (ii) to the extent that any covenant to be performed by the Developer is a condition to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. 6.4 Notice of Default to Mortgagee, Right of Mortgagee to Cure. City shall, upon written request to the City, deliver to each Mortgagee a copy of any notice of default given to Developer under the terms of this Agreement, at the same time of sending such notice of default to Developer. The Mortgagee shall have the right, but not the obligation, within five (5) days [or thirty (30) days for non -monetary defaults] after the receipt of such notice from City, to cure, correct, or remedy the default, or, for such defaults that cannot reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non - monetary defaults], to commence to cure, correct, or remedy the default within such five (5) day period [or thirty (30) day period for non -monetary defaults], and to continuously and diligently prosecute such cure to completion. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Site, such Mortgagee shall have the right to seek to obtain possession with diligence and continuity through foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is reasonably necessary to cure or remedy said default but in no event more than thirty (30) days after obtaining possession. If any such default cannot, with diligence, be remedied or cured within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to effect a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty (30) day period, and thereafter diligently pursues and completes such cure. 394/015610-0061 37 390243.11 all/21/03 -16- v 7 7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT 7.1 Prohibition. The qualifications and identity of the Developer as the developer of high quality commercial developments are of particular concern to the City. Furthermore, the parties acknowledge that the City has negotiated the terms of this Agreement in contemplation of the development and operation of the Project on the Site and the tax revenues to be generated by the operation of the Project on the Site and other benefits accruing to the City from the Project. Accordingly, until the date the Agency, pursuant to the DDA, issues a Release of Construction Covenants for the final Phase of Development (as defined in the DDA) to be constructed on the Site (the "Completion of Construction Date"), (a) no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement, (b) nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Site or the Project thereon (collectively referred to herein as a "Transfer"), except as provided in this Section 7. 7.2 Transfers Prior to Completion of Project. Prior to the Completion of Construction Date, the City may approve or disapprove a proposed Transfer in its sole and absolute discretion; provided that the City agrees to reasonably consider a proposed Transfer to an entity in which the Developer or Richard Oliphant retains a minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains management and control of the transferee entity. The City may condition its approval of such a proposed Transfer prior to the Completion of Construction Date (other than transfers approved pursuant to the immediately preceding sentence) upon the payment of one-half of the net proceeds of the Transfer. Notwithstanding the foregoing, City approval of a Transfer prior to the Completion of Construction Date shall not be required in connection with any of the following: a. 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 Project (as defined herein). b. Any assignment for financing purposes (subject to such financing being permitted pursuant to, and subject to, the DDA), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project or of a Phase of Development. C. A transfer of any of the Suites Hotel, the Suites Hotel Parcel, the Casitas Development, or the Casitas Development Parcel(s), to Center Point Hotel Development, LLC, a California limited liability company. d. A transfer of the Villas Residential Development Parcel or Cluster/Perimeter Residential Parcel to (i) Ehline Development Co., a California corporation ("Ehline"), or (ii) a limited liability company or limited partnership to be formed by Ehline, and in which Ehline is the managing member of the liability company or the general partner of the limited partnership. 394/015610-0061 -1,,- 3%243.11 all/21/03 728 e. A transfer of the Sanctuary Villas Development or Sanctuary Villas Parcel(s) to Center Point Sanctuary, LLC, a California limited liability company. f. A transfer of the Medical Office/Clinic or parcel(s) on which that use is developed to Medical Service Center of La Quinta, LLC, a California limited liability company intended to be formed by Developer. In the event of a Transfer by Developer under subparagraphs (a) through (f) above not requiring the City's prior approval, Developer nevertheless agrees that at least thirty (30) days prior to such Transfer it shall give written notice to City of such assignment and satisfactory evidence that the assignee has assumed in writing through an assignment and assumption agreement of all obligations (or specifically listed and defined obligations with respect to Transfers for a portion of the Site) of Developer of this Agreement. In the event such transfer is under subparagraphs (d), or (f) above (other than a transfer to Ehline), Developer shall, along with the notice required to be given pursuant to the immediately preceding sentence, provide City with evidence that such proposed transferee entity has been duly formed in accordance with the laws of the State of California. 7.3 Assignment and Assumption of Obligations. Developer shall provide to City an assignment and assumption agreement in a form reasonably satisfactory to the City's legal counsel for all proposed Transfers requiring the City's approval. 7.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 7.5 Assignment by City. City may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld. 8.0 MISCELLANEOUS 8.1 Notices. All notices permitted or required hereunder must be in writing and shall be effected by (i) personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii) reputable same -day or overnight delivery service that provides a receipt showing date and time of delivery, addressed to the following parties, or to such other address as any party may from time to time designate in writing in the manner as provided herein: 394/015610-0061 3%243.11 all/21/03 -18- �1.19 To City: City of La Quinta 78-495 Calle Tampico La Quinta, California 92253 Attn: Community Development Director With a copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson To Developer: CP Development La Quinta, LLC Attn: Richard Oliphant 44-139 Monterey Avenue, Suite 201 Palm Desert, CA 92260 Telephone: (760) 776-9900 Facsimile: (760) 776-9971 With a copies to: Genesis Hotel Development, LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Telephone: (760) 360-7886 Facsimile: (760) 345-7175 and Selzer, Ealy, Hemphill & Blasdel, LLP 777 E. Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill, Esq. Telephone: (760) 320-5977 Facsimile: (760) 320-9507 Any written notice, demand or communication shall be deemed received immediately if personally delivered or delivered by delivery service, and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 8.2 Force Ma'e� ure. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default where delays or failures to perform are due to war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes, governmental restrictions imposed or mandated by other governmental entities, governmental restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another party, acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of the City or the Agency shall not excuse performance by the City) or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced 394/015610-0061 390243.11 al1/21/03 -19- delay, which period shall commence to run from the time of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the City and the Developer. Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section 8.2 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable construction or permanent financing for the development of the Site, or because of economic or market conditions. 8.3 BindingEffect. ffect. This Agreement, and all of the terms and conditions hereof, shall be binding upon and inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the Site, and their respective assigns, heirs or successors in interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project or the Site. 8.4 Independent Entity. The parties acknowledge that, in entering into and performing this Agreement, each of the Developer and the City is acting as an independent entity and not as an agent of the other in any respect. 8.5 Agreement Not to Benefit Third Parties. This Agreement is made for the sole benefit of the parties, and no other person shall be deemed to have any privity of contract under this Agreement nor any right to rely on this Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on this Agreement nor be deemed to be a third party beneficiary under this Agreement. Notwithstanding the immediately preceding sentence, the Agency shall be an intended third party beneficiary to this Agreement. 8.6 Covenants. The provisions of this Agreement shall constitute mutual covenants which shall run with the land comprising the Site for the benefit thereof, and the burdens and benefits hereof shall bind and inure to the benefit of each of the parties hereto and all successors in interest to the parties hereto for the term of this Agreement. 8.7 Nonliabilit, of City Officers and Employees. No official, officer, employee, agent or representative of City, acting in his/her official capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs, damage, claim, liability, or judgment, arising out of or connection to this Agreement, or for any act or omission on the part of City. 394/015610-0061 _20_ 4 1. 390243.11 a11/21/03 741 8.8 Covenant Against Discrimination. Developer and City covenant and agree, for themselves and their respective successors and assigns, that there shall be no discrimination against, or segregation of, any person or group or persons on account of race, color, creed, religion, • sex, marital status, national origin or ancestry, or any other impermissible classification, in the performance of this Agreement. Developer shall comply with the Americans with Disabilities Act of 1990, as amended (42 U.S.C. §§ 12101, et seq.). 8.9 Amendment of Agreement. This Agreement may be amended from time to time by mutual consent of the original parties or such party to which the Developer assigns all or any portion of its interest in this Agreement, in accordance with the provisions of the City's Development Agreement Ordinance and Government Code Sections 65867 and 65868. 8.10 No Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought and referring expressly to this Section. No delay or omission by either party in exercising any right or power accruing upon non-compliance or failure to perform by the other party under any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the covenants or conditions to be performed by the other party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof. 8.11 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the parties. 8.12 Cooperation in Carrying Out Agreement. . Each party shall take such actions and execute and deliver to the other all such further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. 8.13 Estoppel Certificate. Any party hereunder may, at any time, deliver written notice to any other party requesting such party to certify in writing that, to the best knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, (iii) the requesting party is not in default in the performance of its obligations 39"15610-0061 390243.11 all/21/03 -21- @4 40 4 under this Agreement, or if in default, describing the nature and amount of any such defaults, and (iv) any other reasonable information requested. A party receiving a request hereunder shall execute and return such certificate within ten (10) days following approval of the proposed estoppel certificate by the City Attorney, which approval shall not be unreasonably withheld or delayed. The City Manager, Assistant City Manager, and Community Development Director are each authorized to sign and deliver an estoppel certificate on behalf of the City. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees. 8.14 Construction. This terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa. 8.15 Recordation. This Agreement shall be recorded with the County Recorder of Riverside County at Developer's cost, if any, within the period required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation or termination of this Agreement, shall be similarly recorded. 8.16 Captions and References. The captions of the paragraphs and subparagraphs of this Agreement are solely for convenience of reference, and shall be disregarded in the construction and interpretation of this Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and exhibits of this Agreement. 8.17 Time. Time is of the essence in the performance of this Agreement and of each and every term and condition hereof as to which time is an element. 8.18 Recitals & Exhibits Incorporated; Entire Agreement. The Recitals to this Agreement and all of the exhibits and attachments to this Agreement are, by this reference, incorporated into this Agreement and made a part hereof. This Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes all previous negotiations, discussions and agreements between the parties, and no parole evidence of any prior or other agreement shall be permitted to contradict or vary the terms hereof. 8.19 Exhibits. Exhibits "A" — "E" to which reference is made in this Agreement are deemed appropriated herein in their entirety. Said exhibits are identified as follows: 39"15610-0061 390243.11 all/21/03 -22- 43 743 A-1 Legal Description of Site A-2 Site Map B Conditions of Approval C Mitigation Monitoring Program D Park Improvements E Early Entry Agreement 8.20 Counterpart Signature Pages. For convenience the parties may execute and acknowledge this agreement in counterparts and when the separate signature pages are attached hereto, shall constitute one and the same complete Agreement. 8.21 Authority to Execute. Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly authorized to execute and deliver this Agreement, (iii) by so executing this Agreement, Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into and performance of its obligations set forth in this Agreement do not violate any provision of any other agreement to which Developer is bound, and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware which could prevent Developer from entering into or performing its obligations set forth in this Agreement. 8.22 Governing Law; Litigation Matters. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflicts of law principles. Any action at law or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting the validity of this Agreement or any provision hereof shall be brought in the Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in said county, and the parties hereto waive all provisions of law providing for the filing, removal, or change of venue to any other court. Service of process on City shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside of California. In the event of any action between the parties hereto seeking enforcement of any of the terms of this Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation shall be awarded, in addition to such relief to which such party is entitled, its reasonable attorney's fees, expert witness fees, and litigation costs and expenses. 8.23 No Brokers. Each of the City and the Developer represents to the other party that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold harmless the other party from such commissions or fees as are alleged to be due from the party making such representations. [end — signature page follows] 394/015610-0061 390243.11 all/21/03 -23- 44 �� e14 IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of the Reference Date. "DEVELOPER". CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President "CITY" CITY OF LA QUINTA, a California municipal corporation LN ATTEST: June Greek City Clerk APPROVED AS TO FORM RUTAN & TUCKER, LLP M. Katherine Jenson City Attorney Thomas Genovese City Manager 39" 15610-0061 24r- 390243.11 al l/21/03 —— � 45 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] STATE OF CALIFORNIA ) ss COUNTY OF On , before me, , personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 394/015610-0061 390243.11 all/21/03 -25- 6 EXHIBIT "A-1" LEGAL DESCRIPTION OF SITE IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027' 38" EAST, A DISTANCE OF 55.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 1040.28 FEET; THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °42' 33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044' 32" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 108979, O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 43056'42" WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059' 27" EAST; 39"15610-0061 3%243.11 a11/21/03 -1- THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017' 57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL "C", A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C" AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011' 26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11005'41", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF 4.22 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID POINT ALSO BEING ON A NON - TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75033'03" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 28054'48", AN ARC DISTANCE OF 1045.60 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF 202.64 FEET TO A POINT ON A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. 39"15610-0061 4 �r 3%243.11 all/21/03 -2- . Cr EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36°57'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 19024'04 AN ARC DISTANCE OF 846.53 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 43.59 ACRES (1,898,933 SQUARE FEET), MORE OR LESS. 394/015610-0061 V" 390243.11 all/21/03 -3- ( �1 9 EXHIBIT "A-2" SITE MAP The Site Map is not a tract map and the parcels depicted there are not legal parcels. Upon Developer's preparation of a tract map that creates legal parcels substantially consistent with the Site Map, Developer shall prepare legal descriptions for each of the Suites Hotel Parcel, the Casitas Development Parcel(s), the Villas Residential Development Parcel, the Cluster/Perimeter Residential Development Parcel, the Medical Office/Surgical Facility Parcel(s), and the Sanctuary Villas Parcel(s), and Agency and Developer shall cooperate to attach such legal descriptions to any document where such legal descriptions are required. LOT8 LAW UM LOT *H :3U3 SJ LOT 1 - RESTAURANT OA4 O0. LOT 2 -RESORT CASITA8 C *LOT 'D. ' \ �' LOT 3 - RESORT CASITA8 ff LOT 4 - RESORT CASITA8 LOT 8 - RESIDENTIAL *LOT 8 - PARK LOT 7 - RESIDENTIAL LOT 8 - THE SANCTUARY LOT 9 - THE SANCTUARY LOT 10 - MEDICAL OFFICE BUILDINGS LOT " - MEDICAL OFFICE BUILDINGS LOT 12 - MEDICAL OFFICE BUILDINGS LOT 13 - RESTAURANT LOT 14 - HOTEL OCUM N LOTS LAND WE LOT 'A' - - - - - - - MEDICAL OFFICE PARKING / LANDSCAPE LOT 'S- - - - - - - - SEELEY DRIVE LOT 'C' - - - - - - - 2W PARKWAY (WASHINWON STREET) * LOT 'D' - - - - - - - CITY LANDSCAPE ENTRY LOT 'E' - - - - - - - 20' PARKWAY (WASHINGTON STREET) LOT 'F' - - - - - WELLSITE * LOT 'Q' - - - - - - - WELLSITE 1N.A.Pa LOT 'H' - - - - - - - 2W PARKWAY (MILES AVENUE) LOT 9' - - - - - - - 2W PARKWAY (MILES AVENUE) * 11wee parcels we not being conveyed by the l.s Quints Redevelopment Agency. They are depicted on ft Site Msp for convenience of tefemwe only. N.T.S. OCTOBER 07, 2003 394/015610-0061 50 390243.11 al1/21/03 _ 1 _ ~) EXHIBIT `S" CONDITIONS OF APPROVAL CITY COUNCIL RESOLUTION NO.2003-035 CONDITIONS OF APPROVAL - FINAL SPECIFIC PLAN 2001-055, AMENDMENT #1 ADOPTED: JUNE 3, 2003 The Specific Plan document shall be modified to include the following: The developer shall submit five final documents to the Community Development Department prior to issuance of any permits. 1. The Developer agrees to defend, indemnify and hold harmless the City of La Quinta (City), its agents, officers and employees from any claim, action or proceeding to attack, set aside, void, or annul the approval of this Specific Plan, or any other application pertaining thereto. The City shall have sole discretion in selecting its defense counsel. 2. Add to the Development Standards for Tourist Commercial, page 6, and Office Commercial, Page 8, that the first 150 feet along Washington Street is limited to structure heights of 22 feet. 3. Change, on Page 5 of the Specific Plan, Land Use Area I- 19.51 acre to 19.12- acre. 4. Change, on page 6 of the Specific Plan, Land Use Area II- 11.32 acre to 11.10- acre. 5. Add to Page 6 of the Specific Plan, Tourist Commercial Development Standards - "Minimum perimeter building/landscape setback (in feet) from Cluster Villas at the corner of Miles Avenue and Seeley Drive-18/10." 6. Add the following footnote to Page 6 of the Specific Plan, Tourist Commercial Development Standards- Resort Casitas Maximum building height (ft.) 33*; *within the first 60' along Miles Avenue, measured from the south side of the 20' landscape setback parcel, the Maximum height of the Resort Casitas units is 22'; within the next 60' to 150' along Miles Avenue, the Maximum height of the Resort Casitas units is 26'; the height may be 33' outside the 150' setback. 7. Change, on Page 7 of the Specific Plan, Medium Density Residential (RM) Development standards- Attached Dwelling Units to Two-story Courtyard Single Family Homes. 8. Eliminate on Page 7, Two-story Courtyard single family homes standard for the minimum perimeter building/landscape setback from Tourist Commercial (casita units) 5 feet. 394/015610-0061 5 390243.11 all/21/03 -1- %J 9. Add on, Page 7, Two-story Courtyard single-family homes standard, Interior street building/landscape setback 20 feet. 10. Add on, Page 7, Two-story Courtyard single-family homes standard, minimum front yard setback 20 feet. 11. Change, on Page 7A of the Specific Plan, Medium Density Residential (RM) Development standards- Single Family Cluster Courtyard to One- and Two -Story Single Cluster Courtyard Villas. 12. Page 7A. Single Family Cluster Courtyard Dwelling Units Standards. Add an Interior street building/landscape setback of 20 feet. 13. Page 7A. Single Family Cluster Courtyard Units. Change the setback from Tourist Commercial (casita units) from 5 feet to 10 feet. 14. Page 7A. Single Family Cluster Courtyard Dwelling Units Standards. Change the minimum perimeter building/landscape setback from Tourist Commercial District from 5 feet to 10 feet. 15. Add the following footnote to Page 7A of the Specific Plan, Medium Density Residential (RM) Development standards- One- and Two -Story Single Cluster Courtyard Villas Building Height 28 ft*; *within the first 60' along Miles Avenue, measured from the south side of the 20' landscape setback parcel, the Maximum height of the One- and Two -Story Single Cluster Courtyard Villas units is 22'; within the next 60' to 150' along Miles Avenue, the Maximum height of the One- and Two -Story Single Cluster Courtyard Villas units is 26'; the height may be 28' outside the 150' setback.. 16. Page 16. On -Site Improvements. Move the last bullet point, The Public Works Department shall consider the option to install a left turn pocket for Seeley Drive southbound, north of Miles Avenue to the off -site improvement section. 17. Exhibit B and F is for illustrative purposes and is subject to modification based upon the development standards in this Specific Plan and applicable Zoning Development Standards. 18. Page 8. Land Use Area IV. Add C. Prohibited Uses: 1. Helicopter Landing Areas; and, 2. Emergency Center. 19. Change, on Page 8 of the Specific Plan, Land Use Area III- 3.02-acre to 2.68- acre. 20. Change, on page 8 of the Specific Plan, Land Use Area IV- 9.73-acre to 9.22- acre. 21. Comply with the Coachella Valley Water District Letter dated January 30, 2002, Attachment A, unless modified by the District. 394/015610-0061 _ _ 52 390243.11 all/21/03 2 22. Streets shall be 28 feet wide with 12 foot setbacks with no parking on one side of the street for the One and Two Story Courtyard Villas located north of Seeley Drive and west of the Park. 23. The grading plan shall be approved with the site development permit by the Planning Commission. 24. The HOA shall maintain all common area landscaping in perpetuity. 25. The landscaping shall comply with the Water Efficiency Ordinance. 26. The boundary between the residential development and the park may be designed with compatible uses. 27. Eliminate the last paragraph on Page 22 under Circulation Element. 1� 28. Add Exhibits B-1 (Concept Plan- Development Parceling), B-2 (Concept Plan - Medical & Surgical Center), and B-3 (Concept Plan- Boutique Hotel) to the Specific Plan 394/015610-0061 _ _ 53 3%243.11 all/21/03 3 70- 3 Addendum for Environmental Assessment 2001-436 Planning Commission resolution 2002-017 City Council Resolution 2002-07 I.a)&c) The proposed project occurs at a high topographic point in the city, and is bordered on the east and north by single family residential development. In order to assess the potential impacts to the viewshed of these single family residential units, a visual impact simulation was conducted.' The simulations were conducted for views from the east and south to the west, and from the north and east to the south and west. The analysis clearly demonstrates that the scale of the proposed project will not eliminate the views of existing or future residential units to the surrounding mountains. The impacts of structures on the project site will be less than significant. III. a) & d) Air quality in the Coachella Valley and the City is primarily affected by vehicular emissions. The development of this project could generate up to 6,170 average daily trips. Based on this trip generation, the project at buildout will generate the following pollutants. Running Exhaust Emissions( ounds/da ) PM10 PM10 PM10 CO ROC NOx Exhaust Brakes Tires 50 mph 223.1 8.58 45.76 -- 0..95 0.95 Daily Threshold* 550 75 100 150 Based on 6,170 trips/day and average trip length of 7 miles, using EMFAC7G Model provided by California Air Resources Board. Assumes catalytic light autos at 75°F. * Operational thresholds provided by SCAQMD for assistance in determining the significance of a project and the need for an EIR. As demonstrated above, the operational impacts associated with air quality on the project site are expected to be less than significant. The Coachella Valley is a non -attainment area for PM10 (particulate matter of 10 microns or smaller). The construction of the proposed project has the potential to generate dust, which could contribute to the PM10 problem in the area. In order to control PM10, the City has imposed standards and requirements on development to control dust. The applicant will be required to submit such a plan prior to initiation of any 1 Visual Impact Simulations, The Keith Companies, December 2001. 2 "La Quinta Gateway Traffic Impact Analysis," prepared by Urban Crossroads, December 2001. 39"15610-0061 4 3%243.11 al l/21/03 ' 1' 7k5 4 IV. a) earth moving activity at the site. In addition, the potential impacts associated with PM10 can be mitigated by the mitigation measures below. 1. Construction equipment shall be properly maintained and serviced to minimize exhaust emissions. 2. Existing power sources should be utilized where feasible via temporary power poles to avoid on -site power generation. 3. Construction personnel shall be informed of ride sharing and transit opportunities. 4. Cut and fill quantities will be balanced on site. 5. Any portion of the site to be graded shall be pre -watered to a depth of three feet prior to the onset of grading activities. 6. Watering of the site or other soil stabilization method shall be employed on an on- going basis after the initiation of any grading activity on the site. Portions of the site that are actively being graded shall be watered regularly to ensure that a crust is formed on the ground surface, and shall be watered at the end of each work day. 7. All disturbed areas shall be treated to prevent erosion until the site is constructed upon. Pad sites which are to remain undeveloped shall be seeded with either a desert wildflower mix or grass seed, or chemical stabilizer. 8. Landscaped areas shall be installed as soon as possible to reduce the potential for wind erosion. Perimeter landscaping on Avenue 52 and Jefferson Street, and the retention basin landscaping shall be completed with the first phase of development. 9. SCAQMD Rule 403 shall be adhered to, insuring the clean up of construction - related dirt on approach routes to the site. 10. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. 11 All buildings on the project site shall conform to energy use guidelines in Title 24 of the California Administrative Code. With the implementation of these mitigation measures, the impacts to air quality from buildout will not be significant. The proposed project is within the mitigation fee area for the Coachella Valley Fringe - toed Lizard Habitat Conservation Plan, and will be required to pay fees to mitigate the potential impact on. this species. The payment of the fees serves to mitigate the impacts to a less than significant level. 394/015610-0061 390243.11 al l/21/03 WAI 55 75-v V. b) & d) Several cultural resource studies were completed for the subject property. 3 The surveys included extensive testing and the excavation of a cremation site. The work done on the site to date has been comprehensive, but additional resources may be buried within the project area. As a result, to ensure that the potential impacts to cultural resources are mitigated, the following mitigation measure shall be implemented: 1. During any and all earth moving activities on any portion of the project site, a qualified archaeological monitor shall be present. The monitor shall be empowered to stop or redirect activities on the site should a resource be identified. A final report shall be filed with the Community Development Department prior to issuance of a certificate of occupancy for any building on the project site. VI. a) ii) A geotechnical investigation was completed for the project site. 4 The site occurs in a seismic Zone IV. The site, as with the balance of the City, will be subject to strong ground shaking during a seismic event. The City has implemented standards in the Uniform Building Code to ensure the highest construction standards are applied to protect against seismic hazard. These standards are expected to ensure that impacts associated with seismic ground shaking*are reduced to a less than significant level. IX. b) The proposed General Plan Amendment and Change of Zone will change the land uses on the project site from High Density Residential and Park to Tourist Commercial, Medium Density Residential, and Park. The surrounding land use designations include Park, Low Density Residential and Watercourse. The change in land use represents a natural extension of the land use plan, insofar as it places more intense land use (Tourist Commercial) at the intersection of Miles and Washington, and steps down the land use intensity as it proceeds easterly. The Medium Density Residential will be an effective buffer to the existing and future low density development to the east and south. The existing High Density Residential designation is a relatively intense land use, which would not have been buffered from the Low Density development to the east. The proposed General Plan and Change of Zone will therefore represent a less than significant impact on the land use pattern in the City. 3 "Archaeological Monitoring Report, Miles Avenue Borrow Site," prepared by CRM Tech, July 2001; "Final Report Archaeological Mitigation of Project Effects to a Native American Cremation Found on Parcel Map No. 26860," prepared by CRM Tech, February 2001; "Final Report Archaeological Testing and Site Evaluation on Parcel Map No. 26860," prepared by CRM Tech, June 2000; "Phase I Archaeological Assessment of 54.65 Acres at the Southeast Corner of Washington Street and Miles Avenue," prepared by Archaeological Advisory Group, June 1999. 4 "Geotechnical Engineering Report," prepared by Earth Systems Southwest, November 2001. 394/015610-0061 390243.11 all/21/03 XI. a) A noise study was completed for the proposed projects The project site is currently subject to high noise levels, and will continue to be impacted by noise as the project build out. The noise levels will not be reduced to City standards without mitigation. XIII. a) In order to achieve acceptable noise levels for the hotels and townhomes on the subject property, the noise study proposes several setback areas for the construction of sound walls, depending on the site design. These mitigation measures include sound walls and/or berms ranging from 0 to 10 feet in height, and are variable depending on the finish grade of the individual sites within the project. With the implementation of the mitigation measures included in the noise study, however, noise levels on the site at buildout can be reduced to an acceptable level. Since no Site Development Permit is proposed at this time for any portion of the site, and specific mitigation cannot therefore be evaluated, the following mitigation measures shall be implemented: 1. Any site development permit submitted for any portion of the site shall either: a) Demonstrate conformance with the mitigation measures provided in the "Revised Preliminary Acoustical Analysis" prepared by Gordon Bricken & Associates on December 6, 2001; or b) Submit a noise study specifically prepared for that site development permit which demonstrates that the noise levels can be reduced on the site to the noise standards in effect at the time of submittal of the application. The proposed development will have a less than significant impact on public services. All areas of the proposed Specific Plan will be served by the County Sheriff and Fire Department, acting under City contract. Site development will generate property tax, transient occupancy tax and sales taxes which will offset the costs of added police and fire services. The project will be required to pay the mandated school fees as development occurs. These fees mitigate the students generated, and offset the impacts to schools. The collection of property tax, and the generation of sales tax will generate revenues to the City to offset the added costs associated with the provision of municipal services. The project will be required to participate in the City's Impact Fee Program, which helps to offset roadway improvement costs. XV. a) A traffic study was conducted for the proposed project. 6 The study found that buildout of the proposed project would generate up to 6,170 average daily trips, of which 310 would 5 "Revised Preliminary Acoustical Analysis," prepared by Gordon Bricken & Associates, December 2001. 6 "La Quinta Gateway Traffic Impact Analysis," prepared by Urban Crossroads, December 2001. 394/015610-0061 390243.11 all/21/03 —4— J 7r-� / t-% occur during the AM peak, and 465 during the PM peak hour. The volume generated by the proposed project, combined with the growth in traffic volumes on City streets from other project in the area resulted in recommended mitigation measures in the study in order to maintain City level of service standards. These mitigation measures are enumerated below: 1. Miles Avenue and Washington Street shall be constructed to their full half -width right-of-way with development of the first phase of the project. 2. A traffic signal shall be installed at the intersection of Seeley Drive and Miles Avenue in conjunction, as warranted. 3. Access to the project from Washington Street shall be limited to right -in, right -out only. 4. Left turn pocket on Seeley Drive, accessing westbound Miles Avenue, shall be a minimum of 100 feet in length. Left turn pocket on westbound Miles Avenue, accessing southbound Seeley Drive, shall be a minimum of 150 feet in length. With the implementation of these mitigation measures, impacts of the project on the City's circulation system shall be less than significant. XVI. a)-f) The buildout of the site will require service from utility providers. The overall impacts on these services is not expected to be significant, insofar as these suppliers will charge the businesses and residents for their services, and provide improvements to these services as needed. In addition, connection fees will be required at construction of any project. These fees and charges will mitigate the potential impacts to a less than significant level. 394/015610-0061 390243.11 all/21/03 -5- Q EXHIBIT "C" MITIGATION MONITORING PROGRAM PROJECT MONITORING CHECKLIST (CEQA Mitigation Measures) CITY OF LA QUINTA MONITORING PROGRAM FOR CEQA COMPLIANCE DATE: December 5, 2001 CASE NO.: GPA 2001-083, ZC 2001-105, SP 2001-055 EA/EIR NO: 2001-436 APPLICANT: City of La Quinta ASSESSORS PARCEL NO.: PROJECT LOCATION: APPROVAL DATE: Southeast comer of Washington Street and Miles Avenue In Process THE FOLLOWING REPRESENTS THE CITY'S MITIGATION MONITORING PROGRAM IN CONNECTION WITH THE MITIGATED NEGATIVE DECLARATION FOR THE ABOVE CASE NUMBER SUMMARY RESPONSIBLE FOR TIMING CRITERIA COMPLIANCE DATE MITIGATION MONITORING CHECKED BY MEASURES AM Lily V%JMJLJJL.L 1 Maintain construction Contractor. Project Construction. SCAQMD standards. equipment. Utilize temporary power. City Engineer. Prior to issuance of grading permits. IID standards. Balance cut and fill on site. City Engineer. Project Construction. Municipal Code. Pre -water and stabilize Building Department. Prior to issuance of PM10 Management soils. building permits. Plan. Provide alternative Community Prior to the issuance of TDM ordinance. transportation. Development grading permits. Department. V_ CULTURAL RESOURCES lV1L` Li►7 V JML' . Archaeological monitor to Community During earth moving. City standards for be on site during earth Development and cultural resource moving. Public Works analysis. Departments. 7.i9 39"15610-0061 1 390243.11 all/21/03 _ SUMMARY RESPONSIBLE FOR TIMING CRITERIA COMPLIANCE DATE MITIGATION MONITORING CHECKED BY MEASURES 'r1 WnTeu Conform to December 6, Community Site Development Project review, 2001 Gordon Bricken & Development Permit review Plan inspection. Associates noise Department, Building check. mitigation measures. Department. Alternatively, submit Community Site Development Project review. revised noise analysis, Development Permit review. conforming to City Department. standards. 'VA7 TD A i`i Ti 1F V A Nil VID V 1r T11. A T1rnN Construct Miles & City Engineer. Project Construction. Inspection. Washington to ultimate right-of-ways. Install traffic signal at City Engineer. Construction or Plan check. Seeley and Miles. warrants. Limit access on City Engineer. Plan Check. City standards for Washington to right -in, access. right -out. Left turn pockets to be 100 City Engineer. Plan Check. City standards for foot minimum on Seeley to roadway Miles and 150 foot improvements. minimum on Miles to Seeley. 394/015610-0061 390243.11 all/21/03 0 00 EXHIBIT ' D" PARK IMPROVEMENTS The Park Improvements shall include all of the following: 1. Appropriate irrigation, turf, landscaping and walkways. All hardscape shall be handicap accessible. 2. A 20,000 square foot dog park which contains: (1) A six foot high wrought iron fence around the entire park perimeter, with the wrought iron fencing 2 inches on center 2 feet from the bottom, and 4 inches on center 4 feet from the lower section to the top, and which contains a top rail. The fence shall be centered on a 4-inch mow curb. (2) The park area is to be divided, by fencing that meets the specifications listed in (1) above, into two sections, with one section containing approximately 12,000 square feet, and the other section containing approximately 8,000 square feet. (3) A double -entry gate system leading to both sections that is handicap accessible. (4) A 6-foot wide maintenance gate into each section. (5) *Two drinking fountains, to be acquired from Most Dependable Fountains (1- 800-831-3606; Model #400SM), with one fountain to be installed in each section of the dog park. (6) *Two benches, to be acquired from Playworld Systems (1-800-669-2585; Model #ZZXX1410), with one bench to be installed in each section of the dog park. (7) *Two shade structures to be installed over the benches described in (6) above, to be acquired from Shade Structures (1-800-50 SHADE) (must contain dimensions of10'X10'). (8) *Two trash containers, to be acquired from Playworld Systems (Model #ZZXX 1414, ZZXX 1415, ZZXX 1418, or ZZXX8060), with one trash container to be installed in each section of the dog park. 3. A 5,000 square foot playground, which contains: (1) A handicap accessible entry into the play area. (2) *One playground structure designed for ages 2-12 years, to be acquired from Playworld Systems (Model #500-0103). (3) *One arch swing with two bays, to be acquired from Playworld Systems (Model #SWING ARCH 500, #SWING ARCH 500-ADD). (4) One wood product, to be acquired from Sof'Fall Engineered Wood Fiber with felt layer and swing/slide mats to be installed to meet industry standards for safety. (5) One spring animal, to be acquired from Playworld Systems (Model #ZZXX0585 Speedy Racer). (6) *One play panel, to be acquired from Playworld Systems (Model #ZZPD-SHOP). (7) *One drinking fountain, to be acquired from Most Dependable Fountains (Model #440SM (Hi Lo)), to be installed near the playground structure. 761 394/015610-0061 1 390243.11 all/21/03 (8) *Two benches, to be acquired from Playworld Systems (Model #ZZXX1410), to be installed facing the playground structure. (9) *Two shade structures to be installed over the benches, to be acquired from Shade Structures (must contain dimensions of 10' X 10'). (10) *One trash container, to be acquired from Playworld Systems (Model #ZZXX 1414, ZZXX 1415, ZZXX 1418, or ZZXX8060), to be installed near the playground structure. *Colors to be determined by City staff at time of order. 7 P) 394✓015610-0061 2 `J 390243.11 all/21/03 EXHIBIT "E" FORM OF EARLY ENTRY AGREEMENT This Early Entry Agreement ("Agreement") is entered into as of , 2003, by and among the CITY OF LA QUINTA, a municipal corporation and a charter city organized and existing under the Constitution of the State of California ("City"), and CP DEVELOPMENT LA QUINTA, LLC., a California limited liability company ("Developer"), with reference to the following facts: RECITALS: A. City is the present owner of that certain property located in La Quinta, California, described on Exhibit "A" hereto (herein "Property"). B. City and Developer have executed and entered into that certain Development Agreement, with a Reference Date of , 2003, ("Development Agreement") pursuant to which Developer agrees, among other obligations, to enter upon the Property and construct and install the "Park Improvements" as described in Exhibit E to the Development Agreement. C. Pursuant to its obligation under the Development Agreement to construct and install the Park Improvements on the Property, Developer has now requested the right to enter onto and about the Property to perform the Park Improvements (hereinafter, the "Permitted Work") and City is willing to allow such entry on the terms and conditions hereinafter specified. AGREEMENT. - NOW, THEREFORE, in consideration of the covenants and agreements contained herein and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged by the parties hereto, the parties covenant and agree as follows: 1. Grant of License. City hereby grants to Developer and its employees, agents, consultants, and contractors ("Related Parties") a license for the term set forth in Paragraph 3 ("License") to enter upon the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, for the purposes of the Permitted Work. Notwithstanding the above, at least forty-eight (48) hours prior to any of the Related Parties' first entry onto the Property to commence the Permitted Work, Developer shall notify City of its intention of the same, and shall thereafter provide such notice before again entering the Property if there is an interruption of such initial entry for a period of even (7) consecutive days (excluding interruptions for events of enforced delay as defined in Section 8.2 of the Development Agreement). Said notice shall be provided by facsimile, addressed to the person listed in Section 8.8 hereof at the number provided therein. City may reject any proposed entry by providing telephonic notification to Developer to the person listed in Section 8.8 hereof, at the number provided therein, at any time prior to the time of the proposed entry. City has full right, title and authority to grant Developer the License for the Permitted Work, and no third party permission or consent is needed in connection therewith. Such License 394/015610-0061 3 390243.11 all/21/03 63 76,7 shall be non -revocable for the Term defined in Paragraph 3 below, except as otherwise set forth herein. City specifically agrees that Developer shall have access to and be entitled to perform the Permitted Work on all portions of the Property, provided, however, that neither Developer nor any of the Related Parties shall interfere with any other real or personal property, or enter upon any other real property, without first obtaining the written consent of the owner(s) of such other real or personal property. 2. City's Authority to Revoke. City may revoke this License upon two (2) days written notice to Developer delivered in accordance with Subparagraph 8.8 below in the event: (i) in the reasonable judgment of City, such revocation is necessary to protect the public health, safety, or welfare pursuant to the exercise of City's police powers; or (ii) Developer is in violation of the terms of this Agreement or any applicable law, statute, ordinance, rule, or regulation pertaining to the Permitted Work or Developer's or the Related Parties' entry upon the Property pursuant to this Agreement, and Developer has failed to cure such violation within two (2) days following Developer's receipt of notice of such violation from City. 3. Term. Unless earlier revoked or terminated pursuant to the provisions of this Agreement, the term of the License shall commence on full execution hereof and shall terminate on the earlier of (i) City's final inspection of and approval of the Permitted Work, or (ii) one hundred twenty (120) days from the date hereof. 4. Repair and Restoration of Property. Developer shall repair any damage it causes to the Property in the course of performing the Permitted Work pursuant hereto and shall, except for the actual Permitted Work allowed hereby. 5 Compliance with Laws. Developer shall obtain, at is sole cost and expense, all governmental permits and authorizations required by any governmental agencies for the Permitted Work. Developer shall comply with, and shall cause all of its Related Parties to comply with, all applicable governmental laws, rules, regulations and requirements governing the Permitted Work. Prior to Developer's or any of the Related Parties' entry onto the Property to perform any of the Permitted Work, Developer shall have prepared, obtained approval from the City thereof, and implemented, a dust control program. 6. Indemnity. Developer shall protect, defend, indemnify and hold harmless City and the La Quinta Redevelopment Agency ("Agency") and their respective officers, officials, members, employees, agents, and representatives (any of the foregoing shall be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and expert witness fees (hereinafter "Claims"), brought in connection with any death or personal injury to any person or persons or damage or destruction of any property arising out of or in any manner directly or indirectly connected with the entry upon the Property by Developer or any of its Related Parties or the activities on the Property (including but not limited to the Permitted Work) by Developer or any of its Related Parties, but excluding from the foregoing any Claims resulting from environmental contamination of the Property or other defects on the Property existing prior to Developer's entry thereon and not otherwise caused by Developer or any of the Related Parties. The foregoing indemnification shall also cover: 39" 15610-0061 4 7 � MA3.11 all/21/03 64 �` (a) any mechanics' or materialmen's liens, claims, demands, actions or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for Developer, or (ii) any activities of any of its Related Parties on or relating to the Property (including, without limitation, any claims by any of such Related Parties); and (b) any costs of removing Developer or its Related Parties from the Property after the expiration of the term hereof unless Developer is otherwise entitled to be on the Property at such time under this Agreement. 7. Insurance. (a) Before entering the Property for any purpose, Developer shall cause the insurance required under this paragraph to be issued and thereafter to be maintained until one (1) year following the end of the Term. Developer shall procure and maintain: (1) A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than: (i) for death and bodily injury, either (A) a combined single limit of Three Million Dollars ($3,000,000) or (B) Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000) in the aggregate, and (ii) for property damage, Three Million Dollars ($3,000,000) per occurrence. (2) A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both the Developer and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Developer in the course of carrying out the work or services contemplated in this Agreement. (3) A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and property damage liability limits of Three Million Dollars ($3,000,000) per occurrence and Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit liability of Three Million Dollars ($3,000,000). Said policy shall include coverage for owned, non -owned, leased, and hired cars. (b) The following additional requirements shall apply to all of the above policies of insurance: (1) All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, the Agency, and their respective officers, officials, members, employees, agents, and representatives as additional insureds. (2) The insurer shall waive all rights of subrogation and contribution it may have against City, Agency, and their respective officers, officials, members, employees, agents, and representatives, and their respective insurers. 7 65 394/015610-0061 390243.11 al l/21/03 5 65 (3) All of said policies of insurance shall provide that said insurance may not be amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. (4) The policies of insurance required by this Agreement shall not require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless approved in writing by the City Manager in his or her sole and absolute discretion. (c) In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. (d) Not later than the date of this Agreement, Developer shall provide the City Manager with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the City Manager. (e) Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 6 or the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 8. Miscellaneous. 8.1 Authority. Each signatory hereto warrants to the other party that it has authority to sign on behalf of the party for whom it purports to sign. 8.2 Attorneys Fees. In the event any party hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees. 8.3 Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. 8.4 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 8.5 Litigation Matters. The Municipal and Superior Courts of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the laws of the State of California. Service of process on City shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. 394/015610-0061 6 390243.11 al l/21/03 ~ 8.6 Non -liability of City Officers and Emuloyees. No officer, official, member, employee, agent, or representative of City shall be personally liable to Developer, or any successor or assign of same, in the event of any default or breach by City, or for any amount which may become due to Developer, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement. 8.7 Covenant Against Discrimination. Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. 8.8 Notices. Unless other sections of this Agreement allow certain specific notices to be given by other means, all notices required to be delivered under this Agreement or under applicable law shall be delivered by one of the following means: (a) personal delivery; (b) delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by reputable document delivery service that provides a receipt showing date and time of delivery; or (d) delivery by facsimile provided the sender receives confirmation the fax was received. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second business day following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that any faxed notices which are transmitted at any time other than 8:00 a.m. to 4:30 pm Monday through Friday (excluding legal holidays) shall be deemed transmitted as of the next business day. Notices shall be delivered to the following addresses: To City: City of La Quinta Attn: Community Development Director 78-495 Calle Tampico La Quinta, CA 92253 Telephone: (760) 777-7000 Facsimile: (760) 777-1233 With a copy to: Rutan & Tucker, LLP Attn: M. Katherine Jenson, Esq. 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626-1998 Telephone: (714) 641-5100 Facsimile: (714) 546-9035 394/015610-0061 7 390243.11 al l/21/'03 "l P, 7 6'7 To Developer: CP Development La Quinta, LLC Attn: Richard Oliphant 44-139 Monterey Avenue, Suite 201 Palm Desert, CA 92260 Telephone: (760) 776-9900 Facsimile: (760) 776-9971 With a copies to: Genesis Hotel Development, LLC 76890 Sandpiper Drive Indian Wells, CA 92210 Attn: Francis A. Wong Telephone: (760) 360-7886 Facsimile: (760) 345-7175 and Selzer, Ealy, Hemphill & Blasdel, LLP 777 E. Tahquitz Canyon Way, Suite 328 Palm Springs, CA 92262 Attn: Emily Perri Hemphill, Esq. Telephone: (760) 320-5977 Facsimile: (760) 320-9507 Changes in the address to be used for receipt of notices shall be effected in accordance with this Paragraph 8.7. Agreement. 8.8 Time of Essence. Time is of the essence in the performance of the [end — signature page follows] 394/015610-0061 8 390243.11 all/21/03 IN WITNESS WHEREOF, this Agreethent has been executed by the parties hereto as of the date first above -written. "DEVELOPER" CP DEVELOPMENT LA QUINTA, LLC a California limited liability company By: Oliphant Family Trust Its: Member LIM Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Its: "CITY" Richard R. Oliphant President CITY OF LA QUINTA Lo Name: Its: City Manager 7o 394/015610-0061 9 390243.11 all/21/03 '' EXHIBIT "A" TO EARLY ENTRY AGREEMENT LEGAL DESCRIPTION OF PROPERTY IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19, ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS SHOWN ON TRACT NO. 23971-11 ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30, INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS; THENCE SOUTH 00027'38" EAST, A DISTANCE OF 55.00 FEET TO A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND THE TRUE POINT OF BEGINNING; THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 1040.28 FEET; THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00 FEET; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °42' 33", AN ARC DISTANCE OF 320.30 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF 90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET; THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45027'41", AN ARC DISTANCE OF 63.48 FEET; THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO. 108979, O.R. THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF 790.73 FEET TO AN ANGLE POINT THEREIN; THENCE SOUTH 43056'42" WEST ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 42059' 27" EAST; �y /.. f - J 394/015610-0061 O 390243.11 all/21/03 THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC DISTANCE OF 236.07 FEET; THENCE NON -TANGENT TO SAID CURVE SOUTH 00017' 57" EAST ALONG AN EASTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 11.03 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4, 1968, DRAWING NO. 1758-10; THENCE CONTINUING SOUTH 00017' 57" EAST ALONG LAST SAID EASTERLY LINE OF PARCEL "C", A DISTANCE OF 386.46 FEET; THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN; THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C" AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2 AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R. THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL 2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 86011' 26" EAST; THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 11005'41", AN ARC DISTANCE OF 401.22 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF 4.22 FEET TO A POINT HEREINAFTER REFERRED TO AS POINT B ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID POINT ALSO BEING ON A NON - TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 75033'03" EAST; THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL ANGLE OF 28054'48", AN ARC DISTANCE OF 1045.60 FEET; THENCE NON -TANGENT TO SAID CURVE NORTH 00028' 37" WEST, A DISTANCE OF 202.64 FEET TO A POINT ON A LINE PARALLEL WITH AND 55.00 FEET SOUTHERLY OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE; THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF 487.01 FEET TO THE TRUE POINT OF BEGINNING. 394/015610-0061 390243.11 all/21/03 -2- 7) 7 i EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF- WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 36°57'27" EAST; THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 19024'04", AN ARC DISTANCE OF 846.53 FEET TO AFOREMENTIONED POINT B. SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING 43.59 ACRES (1,898,933 SQUARE FEET), MORE OR LESS. 394/015610-0061 7 Z 390243.11 a11/21/03 -3- I j AGENCY CONSENT TO RECORDATION THE LA QUINTA REDEVELOPMENT AGENCY HEREBY CONSENTS TO THE RECORDATION OF THE FOREGOING DEVELOPMENT AGREEMENT AGAINST THE REAL PROPERTY DESCRIBED IN EXHIBIT "A" TO SAID DEVELOPMENT AGREEMENT. LA QUINTA REDEVELOPMENT AGENCY A Its: STATE OF CALIFORNIA ) ) ss COUNTY OF On , before me, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 77.1 39"15610-0061 3%243.11 all/21103 73