2005 03 15 RDAa
•
Redevelopment Agency Agendas are
Available on the City's Web Page
@« www.la-quinta.org
•
' REDEVELOPMENT AGENCY
• AGENDA
CITY COUNCIL CHAMBERS
78-495 Calle Tampico
La Quinta, California 92253
Regular Meeting
Tuesday, March 15, 2005 - 2:00 P.M.
Beginning Resolution No. RA 2005-001
CALL TO ORDER
Roll Call:
Agency Board Members: Adolph, Henderson, Perkins, Sniff, and Chairman Osborne
PUBLIC COMMENT
At this time, members of the public may address the Redevelopment Agency 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 — NONE
NOTE: Time permitting the Redevelopment Agency Board 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.
RECONVENE AT 3:00 P.M.
Redevelopment Agency Agenda 1 March 15, 2�-
PUBLIC COMMENT
At this time members of the public may address the Agency Board 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 Agency 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 Agency beginning
consideration of that item.
CONFIRMATION OF AGENDA
APPROVAL OF MINUTES
1. APPROVAL OF MINUTES OF MARCH 3, 2005.
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 MARCH 15, 2005.
2. TRANSMITTAL OF TREASURER'S REPORT DATED JANUARY 31, 2005.
3. TRANSMITTAL OF REVENUE AND EXPENDITURE REPORT DATED JANUARY 31,
2005.
4. APPROVAL OF EMERGENCY REPAIRS TO IRRIGATION PUMP STATION AT
SilverRock RESORT.
5. APPROVAL OF CONTRACT AMENDMENT WITH HEINBUCH GOLF, LLC FOR
CONSTRUCTION MANAGEMENT SERVICES FOR SilverRock RESORT.
6. APPROVAL OF A CONTRACT CHANGE ORDER TO WEITZ GOLF FOR QUANTITY
ADJUSTMENTS FOR GOLF COURSE NO. 1 AT SilverRock RESORT, PROJECT NO.
2002-07C.
BUSINESS SESSION
1. CONSIDERATION OF GOLF COURSE CHANGES AND IMPROVEMENTS PER PGA
SPECIFICATIONS FOR SilverRock RESORT GOLF COURSE NO. 1.
A. MINUTE ORDER ACTION
Redevelopment Agency Agenda 2 March 15, 2005
2. CONSIDERATION OF AN EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN THE
LA QUINTA REDEVELOPMENT AGENCY, THE LA QUINTA CITY COUNCIL AND
DDC DESERT DEVELOPMENT INC. FOR DEVELOPABLE PARCELS WITHIN
SilverRock RESORT.
A. MINUTE ORDER ACTION
NOTE: THIS ITEM WILL BE HEARD AFTER THE PUBLIC HEARINGS ARE
TAKEN UP AT 7:00 P.M.
3. CONSIDERATION OF A REQUEST FOR QUALIFICATIONS FOR THE DESIGN,
DEVELOPMENT AND OPERATIONS OF MULTI -FAMILY HOUSING ON 15.4 ACRES
OF AGENCY -OWNED PROPERTY LOCATED NORTHWEST OF THE INTERSECTION
OF AVENUE 48 AND DUNE PALMS ROAD.
A. MINUTE ORDER ACTION
STUDY SESSION - NONE
CHAIR AND BOARD MEMBERS' ITEMS - NONE
PUBLIC HEARINGS
1. JOINT PUBLIC HEARING BETWEEN THE CITY COUNCIL AND REDEVELOPMENT
AGENCY TO CONSIDER ADOPTION OF A RESOLUTION APPROVING A PURCHASE
AND SALE AGREEMENT BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY
AND SAM'S REAL ESTATE BUSINESS TRUST REGARDING 9.59 ACRES OF
AGENCY -OWNED COMMERCIAL PROPERTY GENERALLY LOCATED SOUTHWEST
OF THE INTERSECTION OF HIGHWAY 1 1 1 AND DUNE PALMS ROAD.
A. RESOLUTION ACTION
2. JOINT PUBLIC HEARING BETWEEN THE CITY COUNCIL AND REDEVELOPMENT
AGENCY TO CONSIDER ADOPTION OF A RESOLUTION APPROVING A PURCHASE
AND SALE AGREEMENT BETWEEN THE LA QUINTA REDEVELOPMENT AGENCY
AND STAMKO DEVELOPMENT COMPANY LP REGARDING AN APPROXIMATELY
2.64 GROSS ACRE PARCEL OF AGENCY -OWNED COMMERCIAL PROPERTY
LOCATED SOUTHWEST OF THE INTERSECTION OF HIGHWAY 111 AND DUNE
PALMS ROAD.
A. RESOLUTION ACTION
ADJOURNMENT
Adjourn to a regularly scheduled meeting of the Redevelopment Agency to be held on April
5, 2005, 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.
Redevelopment Agency Agenda 3 March 15, 2005
DECLARATION OF POSTING
I, June S. Greek, City Clerk of the City of La Quinta, do hereby declare that the foregoing
agenda for the La Quinta Redevelopment Agency meeting of Tuesday, March 15, 2005,
was posted on the outside entry to the Council Chamber at 78-495 Calle Tampico and on
the bulletin boards at 51-321 Avenida Bermudas and 78-630 Highway 111, on Friday,
March 11, 2005.
DATED: March 11, 2005
E S. GREEK, CIVIC, City Clerk
City of La Quinta, California
Redevelopment Agency Agenda 4 March 15, 2005
COUNCIL/RDA MEETING DATE: MARCH 15, 2005
ITEM TITLE:
Demand Register Dated March 15, 2005
•
RECOMMENDATION:
It is recommended the Redevelopment Agency Board:
AGENDA CATEGORY:
BUSINESS SESSION
CONSENT CALENDAR
STUDY SESSION
PUBLIC HEARING
Receive and File the Demand Register Dated March 15, 2005 of which $1441808.08
represents Redevelopment Agency Expenditures.
PLEASE SEE CONSENT CALENDAR ITEM NUMBER 1 ON CITY COUNCIL AGENDA
AGENDA CATEGORY:
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: March 15, 2005 CONSENT CALENDAR:
ITEM TITLE:_ STUDY SESSION:
Transmittal of Treasurer's Report PUBLIC HEARING:
as of January 31, 2005
RECOMMENDATION:
It is recommended the Redevelopment Agency Board:
Receive and file.
PLEASE SEE RELATED BUSINESS SESSION ITEM ON CITY COUNCIL AGENDA
V � �
000,
5
4
OF 'I'�9
AGENDA CATEGORY:
COUNCIL/RDA MEETING DATE: March 15, 2005
ITEM TITLE•
Transmittal of Revenue and Expenditure
Report for January 31, 2005
RECOMMENDATION:
Receive and File
BACKGROUND AND OVERVIEW:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Transmittal of the January 31, 2005 Statement of Revenue and Expenditures for the
La Quinta Redevelopment Agency.
Respectfully submitted,
hn M. Falcondr, Finance Director
Approved for submission by:
Thomas P. Genovese, Executive Director
Attachments: 1. Revenue and Expenditures Report, January 31, 2005
LA QUINTA REDEVELOPMENT AGENCY
REMAINING
REVENUE SUMMARY
BUDGET
RECEIVED
BUDGET
PROJECT AREA NO.1:
LOW/MODERATE BOND FUND:
Allocated Interest
0.00
0.00
0.00
Home Sale Proceeds
0.00
0.00
0.00
Non Allocated Interest
0.00
0.00
0.00
Transfer In
0.00
0.00
0.00
TOTAL LOW/MOD BOND
0.00
0.00
0.00
LOW/MODERATE TAX FUND:
Tax Increment
6,480,979.00
3,272,995.60
3,207,983.40
Allocated Interest
20,800.00
3,976.04
16,823.96
Non Allocated Interest
0.00
0.00
0.00
Miscellaneous revenue
0.00
0.00
0.00
Non Allocated Interest
0.00
0.00
0.00
LQRP-Rent Revenue
341,000.00
169,898.00
171,102.00
Home Sales Proceeds
165,000.00
492,872.82
(327,872.82)
Sale of Land
660,000.00
0.00
660,000.00
Sewer Subsidy Reimbursements
0.00
55,840.70
(55,840.70)
Rehabilitation Loan Repayments
0.00
85,145.97
(85,145.97)
2nd Trust Deed Repayment
0.00
825,899.75
(825,899.75)
Transfer In
0.00
0.00
0.00
TOTAL LOW/MOD TAX
7,667,779.00
4,906,628.88
2,761,150.12
DEBT SERVICE FUND:
Tax Increment
25,923,915.00
13,091,982.45
12,831,932.55
Allocated Interest
66,000.00
38,922.90
27,077.10
Non Allocated Interest
0.00
0.00
0.00
Interst - County Loan
0.00
0.00
0.00
Interest Advance Proceeds
0.00
0.00
0.00
Transfers In
2,478,347.00
888,677.03
1,589,669.97
TOTAL DEBT SERVICE
28,468,262.00
14,019,582.38
14,448,679.62
CAPITAL IMPROVEMENT FUND - NON-TAXABLE
Pooled Cash Allocated Interest
150,000.00
70,460.46
79,539.54
Non Allocated Interest
750,000.00
296,362.04
453,637.96
Litigation Settlement Revenue
0.00
0.00
0.00
Loan Proceeds
0.00
0.00
0.00
Rental Income
0.00
0.00
0.00
Transfers In
0.00
0.00
0.00
TOTAL CAPITAL IMPROVEMENT
900,000.00
366,822.50
533,177.50
CAPITAL IMPROVEMENT FUND - TAXABLE
Pooled Cash Allocated Interest
0.00
0.00
0.00
Non Allocated Interest
50,000.00
37,427.09
12,572.91
Litigation Settlement Revenue
0.00
0.00
0.00
Bond proceeds
0.00
0.00
0.00
Rental Income
0.00
0.00
0.00
Transfers In
0.00
0.00
0.00
TOTAL CAPITAL IMPROVEMENT
50,000.00
37,427.09
12,572.91
2
LA QUINTA REDEVELOPMENT AGENCY
EXPENDITURE SUMMARY
PROJECT AREA NO. 1:
LOWIMODERATE BOND FUND
PERSONNEL
SERVICES
REIMBURSEMENT TO GEN FUND
HOUS►NG PROJECTS
TRANSFERS OUT
TOTAL LOW/MOD BOND
07/01/2004 - 01/31105 REMAINING
BUDGET EXPENDITURES ENCUMBERED BUDGET
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
LOW/MODERATE TAX FUND:
PERSONNEL
4,900.00
3,657.70
0.00
1,242.30
SERVICES
253,157.00
159,687.59
0.00
93,469.41
BUILDING HORIZONS
250,000.00
.150,000.00
0.00
100,000.00
LQ RENTAL PROGRAM
150,000.00
155,840.46
0.00
(5,840.46)
LQ HOUSING PROGRAM
3,118,240.00
65,000.00
0.00
3,053,240.00
LOWMOD VILLAGE APARTMENTS
400,000.00
0.00
0.00
400,000.00
LQRP - REHABILITATION
0.00
0.00
0.00
0.00
APT REHABILITATION
276,411.00
91,692.87
0.00
184,718.13
LQ HOUSING PROJECTS
500,000.00
265,000.00
0.00
235,000.00
REIMBURSEMENT TO GEN FUND
668,272.00
389,825.35
0.00
278,446.65
TRANSFERS OUT
2,478,347.00
888,677.03
0.00
1,589,669.97
TOTAL LOW/MOD TAX
8,099,327.00
2,169,381.00
0.00
5,929,946.00
DEBT SERVICE FUND:
CAPITAL IMPROVEMENT FUND:
SERVICES
.496,585.00
360,415.19
0.00
136,169.81
BOND PRINCIPAL
2,395,000.00
2,395,000.00
0.00
0.00
BOND INTEREST
7,929,969.00
3,991,656.13
0.00
3,938,312.87
INTEREST CITY ADVANCE
952,764.00
555,779.00
0.00
396,985.00
PASS THROUGH PAYMENTS
12,283,973.00
6,212,781.95
0.00
6,071,191.05
ERAF SHIFT
2,780,728.00
0.00
0.00
2,780,728.00
TRANSFERS OUT
1,995,101.00
511,141.52
0.00
1,483,959.48
TOTAL DEBT SERVICE
28,834,120.00
14,026,773.79
0.00
14,807,346.21
PERSONNEL
4,900.00
3,112.55
0.00
1,787.45
SERVICES
116,393.00
70,634.50
0.00
45,758.50
LAND ACQUISITION
0.00
0.00
0.00
0.00
ASSESSMENT DISTRICT
0.00
0.00
0.00
0.00
ADVERTISING -ECONOMIC DEV
40,000.00
6,500.00
0.00
33,500.00
ECONOMIC DEVELOPMENT
50,000.00
16,770.12
0.00
33,229.88
BOND ISSUANCE COSTS
0.00
0.00
0.00
0.00
CAPITAL - BUILDING
0.00
0.00
0.00
0.00
REIMBURSEMENT TO GEN FUND
292,413.00
170,570.78
0.00
121,842.22
TRANSFERS OUT
38,078,614.00
8,082,135.64
0.00
29,996,478.36
TOTAL CAPITAL IMPROVEMENT
38,582,320.00
8,349,723.59
0.00
30,232,596.41
CAPITAL IMPROVEMENT FUND/TAXABLE BOND
BOND ISSUANCE COSTS 0.00 0.00 0.00 0.00
TRANSFERS OUT 5,778,816.00 5,572,127.06 0.00 206,688.94
TOTAL CAPITAL IMPROVEMENT 5,778,816.00 5,572,127.06 0.00 206,688.94
3
LA QUINTA REDEVELOPMENT AGENCY
REMAINING
REVENUE SUMMARY
BUDGET
RECEIVED
BUDGET
PROJECT AREA NO.2:
LOW/MODERATE BOND FUND:
Allocated Interest
0.00
0.00
0.00
Non Allocated Interest
0.00
0.00
0.00
Bond proceeds (net)
0.00
0.00
0.00
Transfer In
0.00
0.00
0.00
TOTAL LOW/MOD BOND
0.00
0.00
0.00
LOW/MODERATE TAX FUND:
Tax Increment
3,345,543.00
1,692,273.20
1,653,269.80
Allocated Interest
24,100.00
21,572.47
2,527.53
Non Allocated Interest
0.00
0.00
0.00
Developer funding
7,054,074.00
7,096,293.56
(42,219.56)
Vista Dunes MHP Rental Rev
0.00
173,848.42
(173,848.42)
2nd Trust Deed Repayment
0.00
292,395.95
(292,395.95)
ERAF Shift - Interest
0.00
0.00
0.00
Sale of Land
801,358.00
801,359.00
(1.00)
Transfer In
0.00
0.00
0.00
TOTAL LOWIMOD TAX
11,225,075.00
10,077,742.60
1,147,332.40
2004 LOW/MODERATE BOND FUND:
Allocated Interest
1,000,000.00
0.00
1,000,000.00
Home Sale Proceeds
0.00
0.00
0.00
Non Allocated Interest
0.00
606,736.85
(606,736.85)
Transfer In
0.00
0.00
0.00
TOTAL LOW/MOD BOND
1,000,000.00
606,736.85
393,263.15
DEBT SERVICE FUND:
Tax Increment
13,382,173.00
6,769,092.82
6,613,080.18
Allocated Interest
0.00
25,997.32
(25,997.32)
Non Allocated Interest
0.00
(5.35)
5.35
Interest Advance Proceeds
0.00
0.00
0.00
Transfer In
4,099,819.00
3,401,994.57
697,824.43
TOTAL DEBT SERVICE
17,481,992.00
10,197,079.36
7,284,912.64
CAPITAL IMPROVEMENT FUND:
Allocated Interest
50,000.00
18,856.70
31,143.30
Non Allocated Interest
0.00
0.00
0.00
Developer Agreement
0.00
0.00
0.00
Transfers In
0.00
0.00
0.00
TOTAL CAPITAL IMPROVEMENT
50,000.00
18,856.70
31,143.30
REVENUE
REMAINING
BUDGET
RECEIVED
BUDGET
GRAND TOTALS PER REPORT
197,237,491.68
95,258,306.24
101,979,185.44
LA QUINTA REDEVELOPMENT AGENCY 07/0112004 - 01/31/05
REMAINING
EXPENDITURE SUMMARY
BUDGET
EXPENDITURES
ENCUMBERED
BUDGET
PROJECT AREA NO. 2:
LOW/MODERATE BOND FUND
2nd TRUST DEEDS
0.00
0.00
0.00
0.00
LAND
0.00
0.00
0.00
0.00
BOND ISSUANCE COSTS
0.00
0.00
0.00
0.00
TRANSFERS OUT
0.00
0.00
0.00
0.00
TOTAL LOW/MOD BOND
0.00
0.00
0.00
0.00
LOW/MODERATE TAX FUND:
PERSONNEL
2,900.00
1,883.60
0.00
1,016.40
SERVICES
192,088.00
270,710.22
0.00
(78,622.22)
2ND TRUST DEEDS
500,000.00
0.00
0.00
500,000.00
2ND TRUST DEEDS FROM CENTERPOINTE
2,520,000.00
0.00
0.00
2,520,000.00
48TH AND ADAMS - FROM CENTERPOINTE
1,423,203.00
7,058.20
0.00
1,416,144.80
WASH/MILES PROJECT
0.00
5,317.50
0.00
(5,317.50)
VISTA DUNES MOBILE HOME PARK
0.00
167,434.01
0.00
(167,434.01)
LOW MOD HOUSING PROJECT/47TH/ADAMS PROJ
776,239.00
44,351.00
0.00
731,888.00
48TH/ADAMS PLANNING
150,000.00
0.00
0.00
150,000.00
FORECLOSURE ACQUISITION
150,000.00
150,000.00
0.00
0.00
REIMBURSEMENT TO GEN FUND
333,272.00
194,408.65
0.00
138,863.35
TRANSFERS OUT
7,350,044.00
6,349,423.20
0.00
1,000,620.80
TOTAL LOW/MOD TAX
13,397,746.00
7,190,586.38
0.00
6,207,159.62
2004 LOW/MODERATE BOND FUND
2nd TRUST DEEDS
0.00
0.00
0.00
0.00
LAND
0.00
0.00
0.00
0.00
BOND ISSUANCE COSTS
0.00
0.00
0.00
0.00
TRANSFERS OUT
1,920,965.00
52,504.00
0.00
1,868,461.00
TOTAL LOW/MOD BOND
1,920,965.00
52,504.00
0.00
1,868,461.00
DEBT SERVICE FUND:
SERVICES
179,013.00
179,518.60
0.00
(505.60)
BOND PRINCIPAL
95,000.00
95,000.00
0.00
0.00
BOND INTEREST
323,264.00
162,617.50
0.00
160,646.50
INTEREST CITY ADVANCE
1,053,580.00
851,417.00
0.00
202,163.00
INTEREST - ERAF L/MOD LOAN
0.00
0.00
0.00
0.00
PASS THROUGH PAYMENTS
11,394,169.00
2,885,424.58
0.00
8,508,744.42
TRANSFERS OUT
994,948.00
254,904.01
0.00
740,043.99
TOTAL DEBT SERVICE
14,039,974.00
4,428,881.69
0.00
9,611,092.31
CAPITAL IMPROVEMENT FUND:
PERSONNEL
2,900.00
2,212.78
0.00
687.22
SERVICES
117,820.00
53,531.56
0.00
64,288.44
ADVERTISING -ECONOMIC DEV
250.00
0.00
0.00
250.00
ECONOMIC DEVELOPMENT ACTIVITY
40,000.00
3,500.00
0.00
36,500.00
REIMBURSEMENT TO GEN FUND
41,443.00
24,176.22
0.00
17,266.78
TRANSFERS OUT
1,426 079.00
(28,891.92)
0.00
1,454,970.92
TOTAL CAPITAL IMPROVEMENT
1,628,492.00
54,528.64
0.00
1,573,963.36
t�i 5
AGENDA CATEGORY:
OF TKO
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: March 15, 2005
CONSENT CALENDAR:
ITEM TITLE: Approval of Emergency Repairs to Irrigation
Pump Station at SilverRock Resort STUDY SESSION:
PUBLIC HEARING:
RECOMMENDATION:
Ratify Contract Change Order Nos. 25 (Attachment 1), 26 (Attachment 2), and 29
(Attachment 3) to Pacific Hydrotech Corporation in the amount of $67,485 for the
construction of emergency erosion repair work around the irrigation pump station
and the No. 17 irrigation lake.
FISCAL IMPLICATIONS:
On February 15, 2005, the Agency approved $608,000 for miscellaneous golf
course changes/contingencies. Agency approval of these Contract Change Orders
will require no further allocation at this time.
BACKGROUND AND OVERVIEW:
On October 5, 2004, the Agency approved a construction contract with Pacific
Hydrotech to install landscape improvements around the parking lots and structures
for SilverRock Resort Golf Course No. 1.
During the rains of January and February 2005, erosion around the irrigation pump
station adjacent to the No. 17 irrigation lake caused undermining of the building
and transformer foundations, and considerable damage to the adjacent landscaping.
On March 3, 2005, the City Manager authorized Pacific Hydrotech to perform
emergency concrete slurry backfill of the area around the pump station and
transformer and to provide river rock for erosion control between the irrigation
pump station and the irrigation lake in order to avoid further damage from storms
forecasted for that weekend.
The La Quinta Municipal Code allows the City Manager to execute contracts by the
most expeditious manner when time is of the essence, as long as the contract is
ratified by the City Council at the next regular meeting. r r;,
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency include:
1. Ratify Contract Change Order Nos. 25, 26, and 29 to Pacific Hydrotech
Corporation in the amount of $67,485 for the construction of emergency
erosion repair work around the irrigation pump station and the No. 17
irrigation lake; or
2. Do not ratify Contract Change Order Nos. 25, 26, and 29 to Pacific
Hydrotech Corporation in the amount of $67,485 for the construction of
emergency erosion repair work around the irrigation pump station and the
No. 17 irrigation lake; or
3. Provide staff with alternative direction.
Respectfully submitted,
- P, "A J
Ti othy R. J as o , P.E.
Public Works Dire r/City Engineer
Approved for submission by:
Thomas P. Genovese, Executive Director
Attachments: 1. Contract Change Order No. 25
2. Contract Change Order No. 26
3. Contract Change Order No. 29
S:\CityMgr\STAFF REPORTS ONLY\3-15-05\C3 Pump Station Repairs.doc ,.
+,13 2
ATTACHMENT
Sheet 1 of 1
CONTRACT: SilverRock Resort Golf Maintenance & Temp Clubhouse Site & Landscape
Improvements
PROJECT NO. 2002 — 07I
CONTRACTOR: Pacific Hydrotech Corporation
CONTRACT CHANGE ORDER NO. # 25
Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
general conditions, and special provisions of the original Contract.
DESCRIPTION OF CHANGE
Pacific Hydrotech Pacific Hydrotech is to provide all labor. eauioment and materials to install concrete slurry under
ump building foundation to control erosion.
I
"See attached"
Additional Contract Days 1 ea.
Previous Contract Amount Through Change Order No.24
$2,4319,023.63
Add This Change Order No. 25
$ 15.744.00
Revised Contract Total
$ $2,4469767.63
By reason of this contract change order the time of completion is adjusted as follows: lday added to contract time.
The original contract completion date is. 12-23-04
The revised contract completion date shall be: 02-16-05
Submitted By: Date:
Approved By: Date:
We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved that we will
provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above
specified work, and hereby accept as full payment the amount shown above, which includes all direct and indirect overhead expenses for any delays.
Accepted By . _ 3 O D Title: Construction Manager
Contractor. Pacific Hydrotech Corporation Date:
3
PACIFIC HYDROTECH
CORPORATION
314 E. 3rd Street
Perris, CA. 92570
(951) 943-8803 Fax (951) 943-1093
Date: 03/03/05
I Request for change vraerI
rry;CUSTOMER
CITY OF LA QUINTA
OB NO. L-433
H TIM JONASSON
.O. # 44
[NAME
RESS 78-495 CALLE TAMPICO
Y/STIZIP LA QUINTA, CA 92253
ORDERED BY:
NE 60 777-7042 FAX 760 777-7155
JOHN P.
JOB LOCATION / DESCRIPTION
ER ROCK RESORT
TEMPORARY
CLUB
HOUSE & MAINTENANCE FACILITY
ITEM
QTY
DESCRIPTION
JUNIT PRICE JUN17r
TOTAL
1
1
REPAIR WASHOUT OF PUMP STATION #1
15744.00
LS
$16,744.
TOTAL REQUESTED
$15,744.00
DAYS REQUESTED
1
WHITE - CUSTOMER YELLOW - FILE PINK - REMITTANCE 4 A `
4
�j
Repair washout and undermine of Pump Station #1
SUB QTY Rate
SLURRY PUMP 1 $875.00
DUMP FEES 1 $250.00
Material QTY Rabe
CONCRETE 3 SACK SLURRY 60 $73.81
FORM MATERIAL 1 $500.00
E ui ment Da IHOUM Rate
FOREMANS Truck (314 TON) 1.5 $120.00
Crew Truck (1 TON) 1.5 $175.00
RUBBER TIRE BACKHOE 1.5 $200.00
BOBTAIL 1 $275.00
Cost
$875.00
S250A0
$1 125.00 MAIL COST
$16.88
INSURANCE
$16.88
BOND
$1,158.75
SUBTOTAL
$115.88
10% O.H. & P
$1,274.63
GRAND TOTAL
Cost
$4,428.53
$500.00
$4,928.53 MAIL. COST
$73.93
INSURANCE
$73.93
BOND
$5 076.38
SUBTOTAL
$761.46
15% O.H. & P
$5,837.84
GRAND TOTAL
Cost
$180.00
$262.50
$300.00
$275.00
$1 017.50 EQUIP. COST
$15.26
INSURANCE
$15.26
BOND
$1048.03
SUBTOTAL
$157.20
15% O.H. & P
$1,205.23
GRAND TOTAL
Labor
Da /Houre
Rate
I Men I
Cost
Foreman - Prev. Wage
12
$65.12
1
$781.44
Operator - Prev. Wage
12
$65.12
1
$781.44
Teamster - Prev. Wage
8
$52.12
1
$416.96
Laborer - Prev. Wage
12
$41.75
4
$2,004.00
Foreman - OVERTIME
4
$97.68
1
$390.72
Operator - OVERTIME
4
$97.68
1
$390.72
Teamster - OVERTIME
0
$78.18
1
$0.00
Laborer - OVERTIME
4
$62.63
4
$1.002.00
$5 767.28 LABOR COST
$86.51
INSURANCE
$86.51
BOND
$5 940.30
SUBTOTAL
$1,485.07
25% O.H. & P
$7,425.37
GRAND TOTAL
$15,70,06 TOTAL C.O.
�l
!: U
ATTACHMENT 2
4r
Sheet 1 of 1
CONTRACT: SilverRock Resort Golf Maintenance & Temp Clubhouse Site & Landscape
Improvements
PROJECT NO. 2002 — 07I
CONTRACTOR: Pacific Hydrotech Corporation
CONTRACT CHANGE ORDER NO. # 26
Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
described work not included in the plans and specifications for this Contract Unless otherwise stated all work shall conform to the terms,
general conditions, and special provisions of the original Contract.
DESCRIPTION OF CHANGE
Pacific Hydrotech Pacific Hydrotech is to provide all labor, equipment and materials to remove cart path & install
concrete slurry under path and install concrete around electrical transformer to control erosion.
"See attached"
Additional Contract Days 3 ea.
Previous Contract Amount Through Change Order No.25
$25,4461,767.63
Add This Change Order No. 26
$ 14,927.00
Revised Contract Total
$ $294619694.63
By reason of this contract change order the time of completion is adjusted as follows: 3days added to contract time.
The original contract completion date is. 12-23-04
The revised contract completion date shall be: 02-19-05
Submitted By: Date:
Approved By: Date:
We, the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is approved that we will
provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above
specified work, and hereby accept as full payment the amount shown ab which includes all direct and indirect overhead expenses for any delays.
c
Accepted By: o o ' Title: Construction Manazer
Contractor: Pacific Hydrotech Corporation Date:
v 6
PACIFIC HYDROTECH
CORPORATION
314 E. 3rd Street
Penis, CA. 92570
(951) 943- M Fax (951) 943-1093
CUSTOMER
NAME CITY OF LA QUINTA
TT
t�t TIM JONASSON
RESS 78-495 CALLE TAMPICO
4
ITY/STRIP LA QUINTA, CA =53
PHONE T777042 FAX 60 m 7155
JOB LOCATION / DESCRIPTION
SILVER ROCK RESORT
-rFUPCRARY CLUB HOUSE & MAINTENANCE FACILITY
equest for
1 1 REMOVE & REPLACE WASHOUT OF CART PATH 0 P.S.#1
2 1 REPAIR WASHOUT DAMAGE TO MCC @ P.S. #1
ange oraer
NO. L-433
# 46
ORDERED BY:
JOHN P.
8575.00 LS
6352.001LS
TOTAL REQUESTED
DAYS
WME-CUSToLIM YEUM-FU PWK-FOOM cE
3
REMOVE & REPLACE WASHOUT GOLFPATH & SIDEWALK PS#1
25FT X 10" X W = 5 YDS
40FT X 12FT X 6" =9 Cy
;UB QTY Rate j
�OCRETE PUMP 1 $325.00
XJMP FEES 1 $250.00
Materfai QTY Rate
56WCRETE 4000PSi 15 $86.48
FORM MATERIAL 1 $100.00
Crew Thick (1 TON)
RUBBER TIRE BACKHOE W/ BREAKER
BOBTAIL
Cost
$325.00
MLA ra%
9575.00 MATL COST
$8.63
INSURANCE
$8.63
BOND
$592.25
SUBTOTAL
$59.23
10%OH.&P
$651. a8
GRAND TOTAL
Cost
$1,297.20
&14M M
$1 397.20 MAIL COST
>r20.96
INSURANCE
$20.96
BOND
$1439.12
SUBTOTAL
$215.87
15% 01L & P
$1,654.96 '
GRAND TOTAL
hiours
Rate
Cost
1.0
$120.00
$120.00
1.0
$175.00
$175.00
1.0
$385.00
$385.00
1.0
$275.00
$275.00
$0.00
$0.00
&#% fv%
$955.00 EQUIP. COST
$14.$3
INSURANCE
$14.33
BOND
$983.65
SUBTOTAL
$147.55
15% O.H. & P
1,13120
GRAM TOTAL
Labor
rs
Rate
Men
Coat
Foreman - Prev. Wage
8
$65.12
1
1
$M.96
$520.96
Operator - Prev. Wage
8
8
$65.12
$41.75
2
$668.00
Laborer - Prev. Wad
8
$46.60
2
$745.60
Formsetter - Prev. Wage
8
$
3
$1,118. 40
Concrete Finisher-Prev. Wage
8
$52..12
1
$416.96
Teamster- Prev. Wage
!A M
$3 9W.88 LABOR COST
$59.86
INSURANCE
$59.86
BOND
$4,110.61
SUBTOTAL
$1,027.65
25% O.H. & P
$5.138.26
GRAND TOTAL
s8,575.91 TOTAL C.O.
Repair Damage to MCC at PS #1
650 S.F. X T =12 cy
SUB QTY Rate
CONCRETE PUMP 1 $415.00
Material QTY Rate
CONCRETE 4000PSI 14 $86.48
FORM MATERIAL 1 i100.00
ui ent �t urs Rate
FOREMANS Truck (314 TON) 1.0 $120.00
Crew Truck (1 TON) 1.0 $175.00
RUBBER TIRE BACKHOE 1.0 $185.00
Platte Compactor 1.0 $100-00
Cast
$415.00
SO 00
$415.00 MAIL COST
$6 23
$6.23
INSURANCE
BOND
i427A5
SUBTOTAL
$42.75
10% O.H & P
�470.20
GRAND TOTAL
Cost
51,210.72
t4nn An
i1 310.72 MATL- COST
$19.66
INSURANCE
$19.66
BOND
i1,350.04
SUBTOTAL
S02.51
15% O.H. & P
i1.552-55
GRAND TOTAL
COSt
$120.00
$175.00
$185.00
$100.00
$0.00
$0:00
to nn
$580.00
$8.70
gSUB7EVTAL
i8.70
$597.40
$89.61
15% O.H. & P
i687.01
GRAND TOTAL
Labor
2 rs
Rate j
Men
Coat 1
Foreman - Prev. Wage
8
8
$65.12
$65.12
1
1
$520.96
$520.96
Operatior - Prev. Wage
Laborer - Prev. Wage
8
$41.75
2
$W8.00
FormseW - Prev. Wage
8
$46.W
1
$372.80
Concrete Finisher - Prev. Wage
8
$46.60
2
$745.60
$0.00
sn o0
$2.828-32 LABMTOTAL
i4242
INS
$42.42
$2,913.17
SU
$728.29
25%O.H.
ii,64146
GRA
$6,351.21 ITOTALCA.
ATTACHMENT 3
Sheet 1 of 1
CONTRACT: SilverRock Resort Golf Maintenance & Temp Clubhouse Site & Landscape
Improvements
PROJECT NO. 2002 — 071
CONTRACTOR: Pacific Hydrotech Corporation
CONTRACT CHANGE ORDER NO. # 29
Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
general conditions, and special provisions of the original Contract.
DESCRIPTION OF CHANGE
"Emerzency Repair" > due to rain in the forecast.
Pacific Hydrotech Pacific Hydrotech is to provide all labor, equipment and materials to install river rock for erosion
control between in igation pump station and #17 irrigation lake.
"See attached"
Additional Contract Days 4 ea.
Previous Contract Amount Through Change Order No.28
$2,4733,870.63
Add This Change Order No. 29
36 814.00
Revised Contract Total
$ $2 510 684.63
By reason of this contract change order the time of completion is adjusted as follows: 4days added to contract time.
Tke original cvn&wd completion dame is. 12-23-04
The revised contract completion date shall be: 02-28-05
Submitted By: Date:
Approved By: Date:
We, the undersigned Contractor, have given carefut consideration to the change pro posed and hereby agree, if this proposal is approved that we will
provide all equipment, furnish all materials, perform all labor, except as may be noted above, and perform all services necessary to complete the above
specified work and hereby accept as full payment the amount shown above, which includes all direct and indirect overhead expenses for any delays.
Accepted By: Title: Construction Manager
Contractor: Pacific Hydrotech Cor oration Date:
10
PACIFIC HYDROTECH Date: 03/03/05
CORPORATION
314 E. 3rd Street Request for Change Order
Perris, CA. 92570
(951) 943-8803 Fax (951) 943-1093
CUSTOMER
AME CITY OF LA QUINTA OB NO. L-433
TTN TIM JONASSON .O. # 47
,DDRESS 78-495 CALLE TAMPICO
;ITY/STIMP LA QUINTA, CA 92253 ORDERED BY:
'HONE 760) 777-7042 FAX 760 777-7155 JOHN P.
JOB LOCATION / DESCRIPTION
IVER ROCK RESORT _
EMPORARY CLUB HOUSE & MAINTENANCE FACILITY
T=ul nry I niper-RlaTlnN IUNIT PRICE UNI TO
1 1 RIVER ROCK IN RIVER WASHOUT AREAS 36814.00 LS
.---
1 V 1 AL KL%AUM* 1 CU
DAYS
$36,814
36.814.
4
WHITE - CUSTOMER YELLOW - FILE PINK - REMITTANCE _ 11
River Rock Placement for two River areas
River #1 : 200 L.f. X 16ft say 1 ft deep =118.5 cy Round River Rods x 2 = 237 ton
River #2 : 140 L.f. X 1 Oft say 1 ft deep = 51.85 cy Round River Rods x 2 = 103.7 ton
slurry rock leaving exposed rock heads say 4600 sf x 3"= 42.6 cy
SUB QTY I Rate
CONCRETE PUMP .1 $775.00
Material QTY 1Rate
3 sack slurry 42.6 x 1.10% 50 $86.48
River Rock 340.7 to x 1.10% 375 $44.89
Equipment
Days/Hours I
Rate
FOREMANS Truck (3/4 TON)
2.0
$120.00
Crew Truck (1 TON)
2.0
$175.00
RUBBER TIRE BACKHOE
2.0
$185.00
Skip Loader
2.0
$150.00
48" Padfoot Compactor
2.0
$325.00
Bobcat
2.0
$150.00
MOVE IN/OUT
1.0
$500.00
Cost
$775.00
$0.00
$775.00 MAIL. COST
$11.63
INSURANCE
$11.63
BOND
$798.25
SUBTOTAL
$79.83
10% O.H. & P
$878.08
GRAND TOTAL
Cost
$4,324.00
$16,833.24
$21,157.24 MATL COST
$317.36
INSURANCE
$317.36
BOND
$21,791.96
SUBTOTAL
$3,268.79
15% O.H. & P
$25,060.76
GRAND TOTAL
Cost
$240.00
$350.00
$370.00
$300.00
$650.00
$300.00
$500.00
$2,710.00 EQUIP. COST
$40.65
INSURANCE
$40.65
BOND
$2,791.30
SUBTOTAL
$418.70
15% O.H. & P
$3,210.00
GRAND TOTAL
11-abor
Days/Houm
I Rate
N Men
N Cost
Foreman - Prev. Wage
16
$65.12
1
$1,041.92
Operator - Prev. Wage
16
$65.12
2
$2,083.84
Laborer - Prev. Wage
16
$41.75
2
$1,336.00
Concrete Finisher - Prev. Wage
16
$46.60
2
$1,491.20
$0.00
$0.00
$0.00
$5,952.96 LABOR COST
$89.29
INSURANCE
$89.29
BOND
$6,131.55
SUBTOTAL
$1,532.89
25% O.H. & P
$7,664.44
GRAND TOTAL
$36,813.26 ITOTAL C.O.
12
�� � 3
COUNCIL/RDA MEETING DATE: March 15, 2005
ITEM TITLE: Approval of a Contract Amendment with
Heinbuch Golf, LLC for Construction Management
Services for SilverRock Resort
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Approve Amendment No. 2 (Attachment 1) to the Professional Services Agreement
(PSA) with Heinbuch Golf, LLC, in the amount of $33,910 to provide additional
construction management services for the SilverRock Resort project, and authorize the
Executive Director to execute the amendment.
FISCAL IMPLICATIONS:
On February 15, 2005, the Agency approved $608,000 for miscellaneous golf course
changes/contingencies. Agency approval of this amendment will require no further
allocation.
BACKGROUND AND OVERVIEW:
On November 4, 2003, the Agency approved a PSA with Heinbuch Golf, LLC to
provide construction management services for the golf course, temporary club house,
maintenance building, restrooms and pump house building.
On August 17, 2004, the Agency approved Amendment No. 1 in the amount of
$68,390 for changes to the scope of the Heinbuch Golf PSA that occurred during
construction of Golf Course No. 1 that increased the time to manage the project. This
amendment also included Heinbuch's additional time to observe and inspect grow -in of
the golf course.
r,
Amendment No. 2 is for time and materials not to exceed $33,910 to perform
remaining contract administration to close out the golf course, parking lot landscape,
temporary clubhouse, maintenance building and comfort station contracts. These
projects were extended beyond their original contract completion dates by bad
weather and permitting delays, which necessitates this extension to the PSA.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency Board include:
1. Approve Amendment No. 2 (Attachment 1) to the Professional Services
Agreement with Heinbuch Golf, LLC, in the amount of $33,910 to provide
additional construction management services for the SilverRock Resort project,
and authorize the Executive Director to execute the amendment; or
2. Do not approve Amendment No. 2 (Attachment 1) to the Professional Services
Agreement with Heinbuch Golf, LLC, in the amount of $33,910 to provide
additional construction management services for the SilverRock Resort project,
and do not authorize the Executive Director to execute the amendment; or
3. Provide staff with alternative direction.
Respectfully submitted,
Jub
othy R. o ass
lic Works irec /City Engineer
Approved for submission by:
Thomas P. Genovese, Executive Director
Attachments: 1 . Contract Amendment No. 2
2. Proposal from Heinbuch Golf, LLC
2
ATTACHMENT 1
Iry
4 a4P 12",&tr4
PROFESSIONAL SERVICES AGREEMENT
AMENDMENT NO.2
PROJECT: SilverRock Resort Construction Management Services
CONSULTANT: Heinbuch Golf, LLC
Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do
the following described work not included in the plans and specifications for this Contract. Unless otherwise stated all work
shall conform to the terms, general conditions, and special provisions of the original Contract.
DESCRIPTION OF CHANGE
Perform remaining contract administration to close out the golf course, parking lot landscape,
temporary clubhouse, maintenance building and comfort station contracts for SilverRock Resort
Phase 1.
Previous Contract Amount
$378,390.00
Add this Amendment No. 2
$339910.00
Revised Contract Total
$412,300.00
Submitted By: Date:
Approved By: Date:
We, the undersigned Consultant, have given careful consideration to the change proposed and hereby agree, if this proposal
is approved, that we will provide all equipment, furnish all materials, perform all labor, except as may be noted above, and
perform all services necessary to complete the above specified work, and hereby accept as full payment the amount shown
above.
Accepted By: Title:
Consultant: Date:
�• 3
ATTACHMENT 2
H EINBucH
LLC
Mr. Tim Jonasson
Director of Public Works
City of La Quinta
Assistant Executive Director
78-495 Calle Tampico
P.O. Box 1504
La Quinta, CA 92253
Re: Authorization for Contract Amendment
Dear Tim,
Pursuant to our conversations, the following is a Scope of Services that should be
completed within the month of March 2005. By doing this work, it will necessitate an
extension and amendment to the HGLLC contract.
Heinbuch Golf, LLC will oversee the following:
Site Cable (Time Warner) Service:
Completion of cable service
United Irrigation & Landscaping:
Golf Course Landscape:
Completion of the landscaping at irrigation pump station, # 13 turnout vault area, Hole #4, and L4
pump station. Clean-up landscape area & tie-in along west edge of course.
Verification of final plant inventory to include all installed material and dead plant
material
Golf Course Irrigation:
Finalization of irrigation "as -built" to verify all quick coupler locations at green & tees
and all extra irrigation stub -outs with wire for future irrigation. All landscape extra wire
additions.
Utilities:
Finalization of staging area inspections of all clean up including oil spills and toxic
materials re: batteries.
Verification of all utility "as-builts"
Punch List:
Finalization of Weitz clean-up and landscape
CVWD Issues:
Block Wall L4 Pump Station: John P to submit revised plans (received 03-02-05) from Doug
E. to Mike S
CVWD Encroachment Permits:
31570 Railroad Canyon Road Suite 219 Canyon Ldke, CA 92587 T: 951-244-2475 F: 951-244-2075 r .' 4
,.. i
Mike S stated he has not received plans showing all utilities, landscape plant material, sidewalks,
cart paths or any other improvement over CVWD irrigation lines.
Irrigation Valve 4907:
Heinbuch Golf, LLC will manage complete process:
No update on abandonment. TKC submitted exhibit (NC) to Mike S.01-11-05. Once approved
contractor will have to pull permit for abandonment. Doug F. to review with Mike S. if this could
be added to existing permits. (2 week turn -around on plans)
Painting of the gate structure at # 10 tees,
Painting of the canal warning signs,
Installation of the emergency ladders along canal
Hole # 15 Turn -out & L4 Pump Station:
Completion inside of the vault by Brudvik.
Waste Area Landscape:
Weitz waiting on Doug Anderson before they complete front nine
Maintenance Building:
Landscape Installation
Installation of the wash rack w/pressure washer
Installation of the fuel tank
Installation of the pesticide storage building
Connection of the water & sewer to the golf maintenance building
N.O.C. sign -off
Temporary Clubhouse Site & Landscape Improvements:
Parking lot punch list
Handrail installation
N.O.C. sign -off
Maintenance Building:
Davis Reed punch list.
Sign -off building for turnover to Landmark Golf
Comfort Stations:
#6, touch up painting, final cleaning
#14 plumbing completion, touch up painting, final cleaning.
Connection of the sewer & water on AVE. 54
Temporary Clubhouse:
Completion of kitchen addition
Claims Currently Under Review:
Heinbuch Golf, LLC. has reviewed the information available and in some cases has enlisted the
services of the various consultants during the review process to verify all information for claim
payments requested by Weitz Golf International and their sub -contractors. During the review
process Heinbuch Golf, LLC. compiled all electronic correspondence, field notes, and weekly
construction reports into hard copy and sorted per contractor.
1. Golf course temporary services
2. Weitz Golf accelerated construction schedule cost
3. Final golf irrigation sprinkler head count
4. Weitz Golf additional shaping delays Phase I
5. United Irrigation & Landscape delays
31570 Railroad Canyon Road Suite 219 Canyon Lake, CA 92587 T: 951-244-2475 F: 951-244-2075 , 5
6. Verizon delays "Weitz Golf' Phase II
7. Additional architectural dirt
8. Performing work out of sequence
9. Storm damage repair
It is estimated the above -mentioned items will be complete at the end of March
2005. If any above -mentioned item still remains, Heinbuch Golf, LLC will supply
Tim Jonasson and Steve Howlett with the City of La Quinta, a complete and detailed
list and report so they can continue in an expeditious manner.
Project Close-out period 1 March through 31 March 2005
Not to exceed:
26 hours @ $110 = 2,860.00
150 hours @ $90 = 13,500.00
130 hours @ $65 = 8,450.00
140 hours @ $65 = 9,100.00
TOTAL: $339910.00
If you should have any questions, please do not hesitate to call me. Thank you.
Sincerely,
(5ay
Heinbuch Golf, LLC
31570 Railroad Canyon Road Suite 219 Canyon LSke, CA 92587 T: 951-244-2475 F: 951-244-2075 6
0 •
s' w5 AGENDA CATEGORY:
c�`� OF
9
BUSINESS SESSION:
COUNCIL/RDA MEETING DATE: March 15, 2005
CONSENT CALENDAR:
ITEM TITLE: Approval of a Contract Change Order to Weitz
Golf for Quantity Adjustments for Golf Course No. 1 at STUDY SESSION:
SilverRock Resort, Project No. 2002-07C PUBLIC HEARING:
RECOMMENDATION:
Approve a Contract Change Order No. 57 (Attachment 1) in the amount of
$102,972.20 for final quantity adjustments for SilverRock Resort, Golf Course No.
1, Project No. 2002-07C.
FISCAL IMPLICATIONS:
On February 15, 2005, the Agency approved $608,000 for miscellaneous golf
course changes/contingencies, which included these quantity adjustments.
Therefore, no additional allocation is necessary at this time.
BACKGROUND AND OVERVIEW:
On March 16, 2004, Weitz Golf was awarded the construction contract for Golf
Course No. 1 for SilverRock Resort.
On January 14, 2005, the golf course was found to be substantially complete, as
all major items of work had been completed. Staff has prepared a contract change
order for adjusting the estimate quantities to those actually constructed in the field
for such things as greens construction, drainage pipe installation, and cart paths
construction. Once all remaining punch list items are complete, the project will be
brought back for City Council's consideration of final acceptance.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency include:
1. Approve a Contract Change Order No. 57 in the amount of $102,972.20 for
final quantity adjustments for SilverRock Resort, Golf Course No. 1, Project
No. 2002-07C; or
2. Do not approve a Contract Change Order No. 57 in the amount of
$102,972.20 for final quantity adjustments for SilverRock Resort, Golf
Course No. 1, Project No. 2002-07C; or
3. Provide staff with alternative direction.
Respectfully submitted,
T' othy R. J nass , P. E.
Public Works Dire r/City Engineer
Approved for submission by:
Thomas P. Genovese, Executive Director
Attachment: 1. Contract Change Order No. 57
T:\PWDEPT\COUNCIL\2005\03-15-05\Weitz Qty Adj CCO.doc 2
ATTACHMENT
Sheet 1 of 1
CONTRACT: SilverRock Resort
Golf Course Construction
PROJECT NO. 2002 — 07C
CONTRACTOR: Weitz Golf International
CONTRACT CHANGE ORDER NO. # 57
Pursuant to the terms of the original Contract Agreement, you are hereby directed to make the herein described changes or do the following
described work not included in the plans and specifications for this Contract. Unless otherwise stated all work shall conform to the terms,
general conditions, and special provisions of the original Contract.
DESCRIPTION OF CHANGE
This change order is to adjust the final contract quantities for the items listed below. See Attached
No Additional compensation is associated with this change order
Previous Contract Amount Through Change Order No. 56
$12,671,457.99
Add This Change Order No.57
$ 102,970.20
Revised Contract Total
$ 129 7749428.19
By reason of this contract change order the time of completion is adjusted as follows: 0 days added/deleted to contract time.
The original contras conipledon date is: 11105104
The revised contract completion date shall be: 01-15-05
Submitted By: Date:
Approved By: Date:
We, the undersigned Contractor, have ' n to Oe changepmposed and hereby agree, if thisproposal is approved, that we will
provide all equipment, is��,r1Ln rm abor, excel as may be noted above, and perform all services necessary to complete the above
specified work and amount sh n above, which includes all direct and indirect overhead expenses for any delays.
Accepted By: Title:
Contractor: Weitz Golf International Date:
3
We(1z Golf , Inc.
43525 R' Drive, Suite 200
Temecula, CA 92WO
1/412005
Contract Qty Adjust rents
Scope of Worts Quantity Adjustment of Contract Items.
Description of Work
Greens Construction
Greens MIK Iron
Credit on Rig Bunker Construction
Credit on Remaining Tee Construction
Additional Drainage Pipe to cmVete the project
Addit orral Sumps to complete the Project
Credit on Remaining Cate Basins
Additional Cart Path (This includes cart Path damaged by Water
Queer Management Conlractor)
Additional G' Access Road #3
Additional 6" Access Road around Pump House and at Canal
Bridge tie-ins
Credit on remalrft Curb
Credit on Renvkft Sewer
Credit on Remaining 7 Potable
Credit on Rig Cteenouts
Additional Bond and insurance 2%
Approved By: Date.
Qty Unit Unit Price Total
Sihw Rock Resat
Project: G12500
CCD Exhibit (3)
1666
SF
$
0.92
$
1,532.72
100
TN
$
34.50
$
3,450.00
-9460
SF
$
1.22
$
(11,54120)
-8196
SF
$
0.26
$
(2,130.96)
2500
LF
$
4.41
$
11,025.00
34
EA
$
575.00
$
19,550.00
-41
EA
$
185.25
$
(7,595.25)
57302
SF
$
1.95
$
111,738.90
597
SF
$
2.56
$
1,528.32
4040
SF
$
2.41
$
9,736.40
-5159
LF
$
4.W
$
(24,763.20)
-170
LF
$
77.08
$
(4,602.75)
-177
LF
$
15.20
$
(2,690.40)
-6
EA
$
714.40
$
(4,286.40)
Subtotal
$
100,951.Is
1
LS
$
2,019.02
$
.2,019.02
Total
$
102,970.20
i,
-' 3 4
o
�vrrrn.A�rn
OF 1Kti9
C&tIt 4 64&Qumrw
COUNCIL/RDA MEETING DATE: March 15, 2005
ITEM TITLE: Consideration of Golf Course Changes and
Improvements per PGA Specifications for SilverRock
Resort Golf Course No. 1
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Authorize the City Manager to allocate $71,000 from golf course contingency
reserves in order to construct modifications to native areas, bunkers, secondary
drainage and tee landscape areas.
FISCAL IMPLICATIONS:
When the City Council approved the SilverRock Annual Business Plan on July 20,
2004, the Council set aside $170,634 in contingency reserves to cover unforeseen
costs, subject to City Council approval. Staff recommends allocating $71,000 from
this account for these revisions to Golf Course No. 1 .
BACKGROUND AND OVERVIEW:
The PGA Tour Design Services performed a site visit on January 27, 2005. Also in
attendance were representatives from the Bob Hope Classic and Landmark Golf
Management. Among other things, the PGA has made the following
recommendations that Landmark Golf has proposed to make under their operations
contract for SilverRock Resort:
1. Renovate native areas around holes 1, 3, 9, 11, 13, 14, and 15 by
converting them to formal sand bunkers.
2. Move the number 18 green bunker back an additional 4-5 yards to allow
additional chipping area.
3. Construct Secondary drainage modifications to formal and native bunkers.
4. Plant additional trees along hole # 9 to block players from playing the #1
fairway and protecting the parking lot from arrant balls.
These items were discussed with Erik Larsen of Palmer Design (PCDC) and he
concurs with these changes. Landmark Golf has created designs for the necessary
changes, which have been approved conceptually by PCDC. Staff recommends
Landmark make these changes, as their knowledge of the golf course will enable
them to expeditiously construct the improvements in accordance with PCDC and
PGA recommendations.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency include:
1. Authorize the City Manager to allocate $71,000 from contingency within the
Golf Course operations contract in order to construct modifications to native
areas, bunkers, secondary drainage and tee landscape areas; or
2. Do not authorize the City Manager to allocate $71,000 from contingency
within the Golf Course operations contract in order to construct
modifications to native areas, bunkers, secondary drainage and tee landscape
areas; or
3. Provide staff with alternative direction.
Respectfully submitted,
Ti othy R. J na so .E.
blic Works irecto /City Engineer
Approved for submission by:
Thomas P. Genovese, Executive Director
S:\CityMgr\STAFF REPORTS ONLY\3-15-05\B1 PGA Changes.doc 2
T 0
-it4f 4
COUNCIL/RDA MEETING DATE: March 15, 2005
ITEM TITLE: Consideration of Adoption of a Resolution
Approving an Exclusive Negotiation Agreement by and
Between the La Quinta Redevelopment Agency and
DDC Desert Development, Inc., for Developable
Parcels within SilverRock Resort
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution approving an Exclusive Negotiation Agreement ("Agreement")
between the La Quinta Redevelopment Agency ("Agency") and DDC Desert Resort
Development, Inc., a Lowe Enterprises Company ("Developer") for initiating
negotiations concerning the design and development of the resort and retail sites
located at SilverRock Resort and authorize the Executive Director to execute the
required documents.
FISCAL IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
In addition to offering golf and other recreation venues for La Quinta residents,
SilverRock Resort has been designed to accommodate a variety of resort hotel
uses. The development activities related to constructing the Tournament Golf
Course have produced building sites that are designated in the SilverRock Resort
Master Plan for hotel, boutique hotel and condominium hotel development.
In October 2004, the Agency directed staff to circulate a Request for Qualifications
to hotel developers and operators who expressed interest in SilverRock Resort
development opportunities. Qualifications Statements were received in December
2004 and staff interviewed 10 resort development and operating companies. In
January 2005, the Agency Board directed staff to initiate negotiations with the
Developer regarding the SilverRock Resort development sites.
The attached Agreement (Attachment 1) provides that the Agency will negotiate
exclusively with the Developer for a 180-day period to define the resort and related
uses for the SilverRock Resort properties, and develop a disposition and
development agreement ("DDA") that outlines the terms and conditions on which
the Agency would convey the SilverRock properties to the Developer and on which
the Developer would construct and operate the development. Business points
included in the Agreement include the following:
• The Agreement covers the SilverRock Resort property that is designated for
private hotel, casita and commercial uses, the second golf course, and the
area designated for park use located southeast of the Avenue 52 and
Jefferson Street roundabout.
• The Agreement establishes a 180-day exclusive negotiation period as
follows:
➢ During the first 90 days, the Agency and Developer will undertake precise
planning activities that define the type, location, style, and phasing of the
resort and associated uses. To ensure Agency Board and community
input, two workshops would be scheduled during this period to: solicit
ideas (workshop 1); review, critique and refine their interpretation by the
Developer's planners/architects (workshop 2). The Developer shall then
present its site plan to the Agency for Agency review. All planning
activities will be managed by the Developer, who will also pay all costs
associated with retaining the required professional services.
➢ During the second 90 days, the Agency and the Developer will negotiate
the business points and draft a DDA. The initial 30 days will entail
refining the business points (it is assumed that we will begin identifying
them during the planning activities), with the remaining 60 days devoted
to negotiating and drafting a DDA.
The 180-day exclusive negotiation period may be extended if additional time
is required to process entitlements and secure environmental clearances.
• The Developer will deposit $100,000 with the Agency that will fund Agency
legal counsel and other consultant costs required to review/generate
materials, negotiate the transaction business points and required property
disposition and development documents, and prepare the DDA and all related
reports and analyses. Deposit funds that are not used for these costs would
be refunded to the Developer if the Agreement is terminated or at such time
as a DDA is approved and executed by the Agency.
• A requirement that during the 180-day exclusive negotiation period, the
Developer cannot pursue the acquisition or development of any hospitality
property within a 10-mile radius of SilverRock Resort without first receiving
approval from the Agency Executive Director.
i��
T 0
-it4f 4
COUNCIL/RDA MEETING DATE: March 15, 2005
ITEM TITLE: Consideration of Adoption of a Resolution
Approving an Exclusive Negotiation Agreement by and
Between the La Quinta Redevelopment Agency and
DDC Desert Development, Inc., for Developable
Parcels within SilverRock Resort
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution approving an Exclusive Negotiation Agreement ("Agreement")
between the La Quinta Redevelopment Agency ("Agency") and DDC Desert Resort
Development, Inc., a Lowe Enterprises Company ("Developer") for initiating
negotiations concerning the design and development of the resort and retail sites
located at SilverRock Resort and authorize the Executive Director to execute the
required documents.
FISCAL IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
In addition to offering golf and other recreation venues for La Quinta residents,
SilverRock Resort has been designed to accommodate a variety of resort hotel
uses. The development activities related to constructing the Tournament Golf
Course have produced building sites that are designated in the SilverRock Resort
Master Plan for hotel, boutique hotel and condominium hotel development.
In October 2004, the Agency directed staff to circulate a Request for Qualifications
to hotel developers and operators who expressed interest in SilverRock Resort
development opportunities. Qualifications Statements were received in December
2004 and staff interviewed 10 resort development and operating companies. In
January 2005, the Agency Board directed staff to initiate negotiations with the
Developer regarding the SilverRock Resort development sites.
The attached Agreement (Attachment 1) provides that the Agency will negotiate
exclusively with the Developer for a 180-day period to define the resort and related
uses for the SilverRock Resort properties, and develop a disposition and
development agreement ("DDA") that outlines the terms and conditions on which
the Agency would convey the SilverRock properties to the Developer and on which
the Developer would construct and operate the development. Business points
included in the Agreement include the following:
• The Agreement covers the SilverRock Resort property that is designated for
private hotel, casita and commercial uses, the second golf course, and the
area designated for park use located southeast of the Avenue 52 and
Jefferson Street roundabout.
• The Agreement establishes a 180-day exclusive negotiation period as
follows:
➢ During the first 90 days, the Agency and Developer will undertake precise
planning activities that define the type, location, style, and phasing of the
resort and associated uses. To ensure Agency Board and community
input, two workshops would be scheduled during this period to: solicit
ideas (workshop 1); review, critique and refine their interpretation by the
Developer's planners/architects (workshop 2). The Developer shall then
present its site plan to the Agency for Agency review. All planning
activities will be managed by the Developer, who will also pay all costs
associated with retaining the required professional services.
➢ During the second 90 days, the Agency and the Developer will negotiate
the business points and draft a DDA. The initial 30 days will entail
refining the business points (it is assumed that we will begin identifying
them during the planning activities), with the remaining 60 days devoted
to negotiating and drafting a DDA.
The 180-day exclusive negotiation period may be extended if additional time
is required to process entitlements and secure environmental clearances.
• The Developer will deposit $100,000 with the Agency that will fund Agency
legal counsel and other consultant costs required to review/generate
materials, negotiate the transaction business points and required property
disposition and development documents, and prepare the DDA and all related
reports and analyses. Deposit funds that are not used for these costs would
be refunded to the Developer if the Agreement is terminated or at such time
as a DDA is approved and executed by the Agency.
• A requirement that during the 180-day exclusive negotiation period, the
Developer cannot pursue the acquisition or development of any hospitality
property within a 10-mile radius of SilverRock Resort without first receiving
approval from the Agency Executive Director.
i��
First Workshop Date
If the Agency Board elects to approve the Agreement, the next step entails holding
the first workshop to solicit ideas. Staff and the Developer believe that an evening
meeting, that is not part of a regularly scheduled Agency or City Council meeting,
would be the best venue. Wednesday, April 6, 2005, has been suggested; this
would provide sufficient time for the Developer to assemble their design team and
prepare for the workshop, and would be early enough in the process to
accommodate the 90-day planning period. As part of the Agency Board discussion
of this item, staff will be requesting consideration of this date to hold the first
workshop.
Representatives from Lowe Enterprises will be in attendance to discuss their firm's
interest in SilverRock. Attachment 2 provides additional information regarding
Lowe Enterprises as provided to staff during the interview process.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency Board include:
1. Adopt a Resolution approving the Agreement between the Agency and
Developer for initiating negotiations concerning the design and development
of the resort and retail sites located at SilverRock Resort and authorize the
Executive Director to execute the required documents; or
2. Do not adopt a Resolution approving the Agreement between the Agency
and Developer for initiating negotiations concerning the design and
development of the resort and retail sites located at SilverRock Resort and do
not authorize the Executive Director to execute the required documents; or
3. Provide staff with alternative direction.
Respectfully submitted,
d
Mark Weiss, Assistant Executive Director
�� v
Approved for submission by:
� -Zz'
Thomas P. Genovese, Executive Director
Attachments: 1. ENA
2. Lowe Enterprises information
n
RESOLUTION NO. RA
A RESOLUTION OF THE LA QUINTA REDEVELOPMENT AGENCY
APPROVING AN EXCLUSIVE NEGOTIATION AGREEMENT BETWEEN
THE AGENCY AND DDC DESERT DEVELOPMENT, INC. FOR THE
PROPERTY LOCATED AT THE SOUTHWEST CORNER OF JEFFERSON
STREET AND AVENUE 52
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 § 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.1 ( "Project Area"),
on November 29, 1983, by Ordinance No. 43; and
WHEREAS, the Agency staff has negotiated an Exclusive Negotiation
Agreement ("Agreement") with DDC Desert Development, Inc., a California
corporation ("Developer"), pursuant to which the Agency and the Developer will
initiate exclusive negotiations, for up to one hundred eighty (180) days, concerning
the Developer's proposed acquisition of certain real property located in the Project
Area at the southwest corner of Jefferson Street and Avenue 52, and development
thereon of a commercial project consisting of some or all of a luxury boutique hotel,
condo hotel units, a retail village, a 4- or 5-star hotel, a conference center, and
additional resort units; and
WHEREAS, the Agency has considered all the information presented
by Agency staff concerning the Agreement; and
WHEREAS, the Agreement is in accordance with the Redevelopment
Plan and is of benefit to the Project Area and the City of La Quinta; and
NOW, THEREFORE, BE IT RESOLVED BY THE LA QUINTA
REDEVELOPMENT AGENCY AS FOLLOWS:
1. That the above recitals are true and correct and incorporated herein.
2. That the Agency hereby finds and determines that the Agreement
effectuates the purposes of the Community Redevelopment Law (Health & Safety
Code § 33000 et seq.) and of the Redevelopment Plan and is in the best interests
of the citizens of the City of La Quinta.
882/015610-0084
589286.01 a03/11/05
Resolution No. RA 2005-
DDC Desert Development Inc. ENA
Adopted: March 15, 2005
Page_2_
3. The Agreement, a copy of which is on file with the Agency Secretary,
is hereby approved. The Agency Executive Director and Agency Counsel are
hereby authorized and directed to make final modifications to the Agreement that
are consistent with the substantive terms of the Agreement approved hereby, and
the Agency Executive Director is authorized to thereafter sign the Agreement on
behalf of the Agency.
4. The Agency Executive Director is authorized and directed, on behalf of
the Agency, to sign such other and further documents, and take such other and
further actions, as may be necessary and proper to carry out the terms of the
Agreement.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the
La Quinta Redevelopment Agency held this 15th day of March, 2005, by the
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
LEE OSBORNE, Agency Chair
City of La Quinta, California
ATTEST:
JUNE S. GREEK, Agency Secretary
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, Agency Counsel
City of La Quinta, California
882/015610-0084
589286.01 a03/11/05
ATTACHMENT 1
EXCLUSIVE NEGOTIATION AGREEMENT
THIS EXCLUSIVE NEGOTIATION AGREEMENT (the "Agreement") is entered in
this day of March, 2005, by and between the LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and politic (the "Agency"), and DDC DESERT
DEVELOPMENT, INC., a California corporation (the "Developer"), on the terms and
provisions set forth below.
RECITALS
WHEREAS, on November 29, 1983, the City Council (the "City Council") of the City of
La Quinta (the "City") approved and adopted the Redevelopment Plan for Project Area No. 1, by
Ordinance No. 43 ("Redevelopment Plan"), establishing the La Quinta Redevelopment Project
Area No. 1 (the "Project Area"); and
WHEREAS, the Agency is the owner of certain real property within the Project Area, as
further described herein (the "Site"); and
WHEREAS, the Developer is interested in purchasing, leasing, or optioning the
developable portions of the Site from Agency and developing thereon a commercial project
consisting of some or all of the following developments: a luxury boutique hotel; condo hotel
units; a retail village; a larger, 4- or 5-star hotel; a conference center; and additional residential
resort units, all as more particularly to be described in the DDA (as hereinafter defined)
(collectively, the "Project"); and
WHEREAS, the Agency and the Developer desire to enter into this Agreement to initiate
exclusive negotiations for up to one hundred eighty (180) days (the "Negotiation Period") for
the purposes of (i) undertaking due diligence activities regarding the Project; (ii) considering the
issues related to development and preparing preliminary schematic designs for the Project;
40843826.7 r r�
l�f�N,
(iii) establishing the responsibilities, schedule, and financial parameters for development of the
Project on the Site; (iv) preparing environmental studies (if any) required in connection with the
Project as more particularly set forth herein; (v) agreeing with the Agency on a list of
entitlements which will be required for the Project; (vi) agreeing on the terms and conditions for
Developer's purchase or lease of the portion of the Site which will be developed for the Project
from Agency; and (vii) negotiating and drafting a disposition and development agreement (the
"DDA").
NOW, THEREFORE, in consideration of the recitals and mutual covenants and
conditions contained herein, the parties hereto agree as follows:
I. SITE
The Site constitutes the real property that is the subject of this Agreement. The Site is
approximately five hundred twenty-five (525) acres located at the southeast intersection of
Jefferson Street and Avenue 52. The Project will be developed on a portion of the Site (the
"Project Site"). The exact acreage of the Project Site will be determined during the Project Site
planning activities outlined below. Both the Site and the preliminary Project Site are depicted on
Exhibit 1, which is attached hereto and incorporated herein by this reference.
Il. NEGOTIATION PERIOD
A. Negotiation Period
The negotiation period ("Negotiation Period") shall commence upon the date Agency
approves and executes this Agreement, which commencement date shall be inserted into the
preamble to this Agreement (the "Commencement Date"), and shall end on the date that is one
hundred eighty (180) days following the Commencement Date (the "End Date"), unless earlier
terminated or extended pursuant to the terms of this Agreement. This Agreement shall
40843826.7 -2-
Ct:3
automatically terminate as of the End Date unless extended pursuant to the terms of this
Agreement.
B. Site Plan Development/Due Diligence
During the first ninety (90) days of the Negotiation Period (the "First Due Diligence
Period"), the parties agree to negotiate in good faith to formulate conceptual plans for
development of the Project (each a "Site Plan") and conduct due diligence activities. It is
anticipated that during the First Due Diligence Period the Developer will engage in at least one
preliminary "idea session" public workshop with the City Council and one follow-up review
session (again at a public workshop) to present the Developer's proposals for the Project. At the
end of the First Due Diligence Period, the Developer shall present its Site Plans to Agency for
Agency review. Each Site Plan shall include and delineate the following elements:
1. The type and scope of the portion of the Project shown on such Site Plan;
2. The interface of a phased development with the complete build out of the
Project Site;
3. Required on- and off -site infrastructure improvements, if known;
4. Project, infrastructure, and state and local regulatory requirement costs, if
known;
5. Funding responsibilities and sources for development of the Project;
6. The parties/entities responsible for the various Project development
activities; and
7. A detailed Project development schedule.
During the First Due Diligence Period, the Agency and Developer, as applicable, shall
conduct their respective due diligence activities, including but not limited to:
40843826.7 -3- v+ 4 4
1. Developer's timely delivery and submission to Agency of reasonable
evidence that the Developer has access to the required equity and
financing to complete each phase or each component of the Project;
2. Developer's delivery to Agency of information regarding Developer's
hotel operator affiliate, Destination Hotels and Resorts;
3. Developer's timely review of preliminary title report information prepared
for the Project Site;
4. Developer's timely investigation of the Project Site. In conjunction
therewith, and subject to the Developer receiving all prior governmental
approvals and agreeing to all conditions of such approvals, including but
not limited to approvals from the Air Quality Management District
("AQMD"), Developer and its consultants and agents shall have the right
to enter upon the Site to conduct tests, studies, and investigations pursuant
to an Early Entry Agreement, the form of which is attached hereto and
incorporated herein as Exhibit 2; and
5. Developer's timely submission of the preliminary Site Plans to the
Agency Board for review and comment.
If, at the end of the First Due Diligence Period, the Agency Board has not approved
Developer's Site Plans and accepted Developer's financial capacity to achieve the completion of
the proposed development, this Agreement shall terminate upon ten (10) days' prior written
notice to Developer unless, within such ten (10) day period, the Agency Executive Director, in
his or her sole and absolute discretion, extends the time for the First Due Diligence Period
10
40843826.7 -4-
`,
pursuant to Paragraph Q of Part VIII below, or the parties hereto mutually agree, each in their
sole and absolute discretion, to extend the time for the First Due Diligence Period.
C. DDA/Environmental Review/Entitlements
If the Site Plans and Developer's financial capacity are accepted by the Agency Board
prior to the close of the First Due Diligence Period, as such period may be extended pursuant to
the immediately preceding Paragraph, the Agency agrees to then negotiate exclusively with the
Developer for the remaining ninety (90) days of the Negotiation Period (the "Second Due
Diligence Period"). During the first thirty (30) days of the Second Due Diligence Period,
Developer will meet with the Agency staff to discuss the general terms and conditions to be
incorporated into the DDA. During the next thirty (30) days of the Second Due Diligence
Period, Developer and Agency staff will negotiate the specific terms and conditions to be
included in the DDA. During the last thirty (30) days of the Second Due Diligence Period,
Developer and Agency will attempt to finalize the DDA and agree upon the environmental
studies and land use entitlements and/or amendments necessary for development of the Project,
including, without limitation, any amendments to the existing Specific Plan or any new Specific
Plan for the Site. Developer and Agency believe that the existing environmental and entitlement
documents are consistent with the proposed Project and that, therefore, additional environmental
review will only be required if there are changes to the existing entitlements.
If, at the close of the Negotiation Period, the Developer has not executed and submitted a
DDA to the Agency, this Agreement shall automatically terminate without notice unless the
Agency Executive Director agrees, in his or her sole and absolute discretion, to extend the time
for the Second Due Diligence Period pursuant to Paragraph Q of Part VIII below, or the parties
1.�
40843826.7 -5-
�, [
mutually agree, each in their sole and absolute discretion, to extend the time for the Second Due
Diligence Period.
D. Execution of DDA
Upon submittal of the executed DDA by the Developer to the Agency, and once all
environmental and entitlement applications necessary for the Project have been accepted and
processed by the City for consideration by the City Council, the Negotiation Period shall be
extended for the period necessary ("Third Due Diligence Period") to enable the Agency and the
City to:
1. Notice and conduct a public hearing pursuant to Section 33433 of the
California Health and Safety Code on the DDA; and
2. Process Site development, environmental, and entitlement applications
through the City's Architecture and Landscaping Committee, Planning
Commission and City Council.
E. Exclusivity of Negotiations
The Agency agrees that during the Negotiation Period, the Agency shall not negotiate or
enter into an agreement with any other person or entity regarding development of the Site. The
Developer agrees that during the Negotiation Period, without the prior written consent of the
Agency Executive Director, which may be given or withheld in the Director's sole and absolute
discretion, the Developer shall not negotiate nor enter into an agreement to acquire and/or
develop any hospitality property located within a ten (10) mile radius from the intersections of
Jefferson Street and Avenue 52.
The obligation to negotiate in good faith requires the respective parties to communicate
with each other with respect to those issues for which agreement has not been reached, and in
A
-6-
40843826.7
such communication to follow reasonable negotiation procedures, including meetings, telephone
conversations, and correspondence. The parties understand that final accord on all issues may
not be reached. It is also understood that, (1) neither party is under any obligation to reach
agreement on the DDA and (2) the Agency reserves the right to approve or reject a DDA, the
Project, or any disposition of the Project Site, as more particularly set forth in Part IV of this
Agreement.
F. Agency and Developer Obligations_
During the Negotiation Period Agency and Developer obligations shall include, but not
be limited to, the following:
1. Agency Obligations
a. Provide the Developer with documents in Agency's possession
that would assist the Developer with the due diligence activities
described in this Agreement; and
b. Upon acceptance of the Site Plans and verification of Developer
financial capacity to both purchase and develop the Project, as
outlined in Part II.A of this Agreement, attempt to prepare a DDA.
C. If a DDA has been prepared, schedule a joint public hearing on the
DDA with the City Council and the Agency Board of Directors.
2. Developer Obligations_
a. Use its best efforts to investigate the Site;
b. Timely submit site plans, elevations, schematic drawings, detailed
Project development costs, Project pro formas for individual
product types as well as a pro forma summarizing the total Project -
40843826.7 -7-
and respective returns and other documents necessary for Agency
and City review;
C. Timely submit proof of lender availability that demonstrates access
to sufficient capital to fund both Project Site purchase and
development of the Project; and
d. Timely submit proof of the availability of cash equity necessary to
fund Project Site purchase and development costs not funded by
commercial lender loans or partnership funds.
e. Timely submit proof of a resort management commitment by
Destination Hotels and Resorts.
III. DEVELOPER DEPOSIT
As a condition precedent to the Agency's execution of this Agreement, Developer has
tendered to Agency, and Agency has accepted, a deposit ("Negotiation Deposit") in the amount
of One Hundred Thousand Dollars ($100,000), in the form of a cashier's or certified check, or
wire transfer, payable to Agency. Agency agrees to hold the Negotiation Deposit in the
Agency's account. Developer agrees that Agency may use a portion of the Negotiation Deposit
to reimburse itself for reasonable and actual attorneys' fees, consultant fees, appraisal fees, title
reports, and any other related fees and costs ("the DDA Negotiation Costs") incurred by the
Agency in (i) negotiating and preparing this Agreement, (ii) reviewing any documents submitted
in furtherance of this Agreement and/or Developer's proposal to develop the Project, (iii) any
negotiations relating to the DDA and any related documents, and (iv) drafting the DDA or any
other related documents. Agency shall submit to Developer invoices reasonably detailing DDA
Negotiation Costs Agency has incurred at the time it submits a reimbursement notice to the
t it
40843826.7 g r
Developer. Agency shall be free to withdraw funds from the Negotiation Deposit, as needed,
provided that it has submitted such invoices to the Developer. Any amount of the Negotiation
Deposit not used by Agency for DDA Negotiation Costs shall be refunded to Developer
(together with interest accrued thereon) within thirty (30) days after the earlier of (i) execution
and approval by Agency of the DDA, or (ii) termination of this Agreement.
IV. RETENTION OF DISCRETION TO APPROVE THE PROJECT AND DDA; NO PRE -
COMMITMENT
It is anticipated that the Project and the DDA providing for its implementation will be
presented to the Agency Board for approval and the consent thereto by the City Council. The
parties understand that the Agency is reserving the right to exercise its discretion as to all matters
which it is, by law, entitled or required to exercise its discretion, including, but not limited to the
following:
A. Approval by the Agency of the Final Project as Contained in the DDA
The parties understand that the Agency has the complete and unfettered discretion to
reject the DDA without explanation or cause. The risk of loss of all processing, design and
developmental costs incurred by the Developer prior to DDA approval and execution shall be
absorbed entirely by Developer unless expressly assumed, by the terms of this Agreement, by the
Agency.
B. Review and Ap rop val by the Agency of all Discretionary Findings and
Conclusions
The duty of the Agency to dispose of the parcels comprising the Site shall be conditioned
upon the successful review and approval of all necessary findings and conclusions which the
Agency Board is required to make, including all necessary findings and determinations required
40843826.7 -9-
under CEQA, state and local land use provisions, and the California Community Redevelopment
Law. As to any matter which the Agency may be required to exercise its unfettered discretion in
advancing the Project to completion, nothing herein, nor to be contained in the DDA shall
obligate the Agency to exercise its discretion in any particular manner, and any exercise of
discretion reserved hereunder or required by law, shall not be deemed to constitute a breach of
Agency duties under this Agreement.
C. No Pre -Commitment by Agency
By its execution of this Agreement, the Agency is not committing itself or agreeing to
undertake any activity requiring the subsequent exercise of discretion by the Agency, or any
department thereof including, but not limited to, the approval and execution of a DDA; the
development proposal, or approval of any land use regulation governing the Site; the provision
of financial assistance for the development of any public or private interest in real property; or
any other such act or approval.
This Agreement does not constitute a disposition of property or exercise of control over
property by the Agency and does not require a public hearing. Agency execution of this
Agreement is merely an agreement to enter into a period of exclusive negotiations according to
the terms hereof, reserving final discretion and approval by the Agency as to any proposed DDA
and all proceedings and decisions in connection therewith.
V. THE DEVELOPER
A. Developer Experience
As a condition precedent to Agency's execution of this Agreement, Developer shall have
submitted to Agency a detailed description of the development experience of the Developer and
its principals, associates, employees, partners, and joint ventures.
40843826.7 -10-
i�
B. Offices of the Developer
The principal offices of Developer are located at:
Lowe Destination Development — Desert, Inc.
Attn : Theodore R. Lennon, Jr.
74-001 Reserve Drive
Indian Wells, CA 92210
C. Project Manager and Prime Hotel Developer
The Project Manager(s) for the Developer will be: Theodore R. Lennon, Jr. and Thomas
Cullinan.
The hotel developer will be: Lowe Destination Development — Desert, Inc. Other prime
developers, employees, consultants, or representatives who are proposed to be directly involved
in the Project will be determined by Developer and submitted to Agency upon any such
determination.
D. Full Disclosure
The Developer shall maintain full disclosure to the Agency of its principals, officers,
stockholders, partners, joint ventures, and all other pertinent information concerning the
Developer.
E. Assignment
The Developer may not assign this Agreement without the prior written approval of the
Agency Executive Director, which approval may be given or withheld in the Agency Executive
Director's sole and absolute discretion; provided, however, that notwithstanding the foregoing,
the Agency agrees that the Developer may assign its rights under this Agreement to a
corporation, trust, limited liability company or partnership in which the Developer holds the
majority beneficial interest and as to which the Developer exercises operational control. Any
assignment the Agency has approved shall not be effective unless and until the Developer
40843826.7
submits a signed assignment and assumption agreement in a form and with content approved by
Agency legal counsel.
VI. ENVIRONMENTAL REQUIREMENTS
The Developer shall prepare all necessary environmental documents as required by the
California Environmental Quality Act (Public Resources Code Section 21,000 et. seq.) and local
regulations, for certification by the City. The Developer agrees to cooperate with the City and
Agency, as requested, to help determine the environmental impact of the proposed development
and to prepare any other additional documents as may be needed to complete environmental
review for the development of the Project on the Site; provided, however, that the Agency and
the City shall not incur costs or expenses in connection therewith nor will Agency or City
reimburse the Developer for costs incurred related to preparing these materials.
VII. REAL ESTATE COMMISSIONS
The Agency has not engaged a broker, agent, or finder in connection with this
transaction. As such, the Agency shall not be responsible for any claims by a broker, agent or
finder, and the Developer agrees to defend, indemnify, and protect and hold the Agency harmless
from any such claims.
VIII. GENERAL PROVISIONS
A. Legal Actions; Governing Law; Service of Process
In addition to any other rights or remedies, either party may institute legal action to cure,
correct or remedy any default, to recover actual damages for any default, or to obtain any other
remedy consistent with the purposes of this Agreement; provided, however, that Paragraph C of
this Part VIII shall supersede any conflicting provisions of this Paragraph Al. Such legal actions
must be instituted and maintained in the Superior Court of the County of Riverside, State of
13
40843826.7 12
California, or in any other appropriate court in that county. The laws of the State of California
shall govern the interpretation and enforcement of this Agreement. In the event that any legal
action is commenced by Developer against Agency, service of process on Agency shall be made
by personal service upon the Executive Director or Secretary of Agency, or in such other manner
as may be provided by law. In the event that any legal action is commenced by Agency against
Developer, service of process on Developer shall be made by personal service upon Developer
or in such other manner as may be provided by law, and shall be valid whether made within or
without the State of California.
B. 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 its 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.
C. Specific Performance as Developer's Exclusive Remedy
Subject to Developer's right to terminate this Agreement in accordance with the terms of
Paragraph E of this Part VIII, Developer's exclusive remedy for an uncured Agency default
under this Agreement is to institute an action for specific performance of the terms of this
Agreement, and in no event shall Developer have the right, and Developer expressly waives the
right, to seek monetary damages of any kind (including but not limited to actual damages,
economic damages, consequential damages, or lost profits) from Agency in the event of a default
by Agency under this Agreement or any action related to this Agreement. Notwithstanding the
foregoing, Developer shall retain the right to seek a writ of mandate in the event of any final
denial by Agency of any Agency permit approval pertaining to the Project.
40843826.7 `v, `�
D. Attorney's Fees
If either party to this Agreement is required to initiate or defend litigation in any way
connected with this Agreement, the prevailing party in such litigation, in addition to any other
relief which may be granted, whether legal or equitable, shall be entitled to its actual and
reasonable attorney's fees. If either party to this Agreement is required to initiate or defend
litigation with a third party because of the violation of any term or provision of this Agreement
by the other party, then the party so litigating shall be entitled to its actual and reasonable
attorney's fees from the other party to this Agreement. As used herein, the term "attorney's fees"
shall include attorney's fees incurred related to the foregoing described litigation and for any
appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, retaining expert witnesses, taking depositions and discovery,
and all other necessary costs incurred in such litigation. All such fees shall be deemed to have
accrued on commencement of such action and shall be enforceable whether or not such action is
prosecuted to judgment.
The parties hereto acknowledge and agree that each such party shall bear its own legal
costs incurred in connection with the negotiation, approval, and execution of this Agreement;
provided, however, that notwithstanding the foregoing the Agency is authorized, as set forth in
Paragraph III of this Agreement to use a portion of the Developer's Negotiation Deposit to pay
Agency's DDA Negotiation Costs.
40843826.7 -14-
E. Termination Rights
Notwithstanding the nominal Negotiation Period hereinabove set forth, either party may
terminate this Agreement if the other party has materially defaulted in its obligations herein set
forth, the terminating party has provided the defaulting party with written notification of such
determination, and the defaulting party has refused to cure same. The written notification shall
set forth with reasonable specificity the nature of the actions required to cure such default, if
curable. The defaulting party shall have thirty (30) days from the date of receipt of the written
notification to cure such default. If such default is not cured within the thirty (30) days, the
termination shall be deemed effective. For purposes of this paragraph, the parties hereby
acknowledge that time is of the essence. Each party shall also have the right to terminate this
Agreement in the event that (a) Agency or Developer determines that the Project is infeasible,
based on financial or environmental impact considerations, or not in the public interest; or (b) the
parties reach an impasse in their negotiation of the DDA which cannot be resolved after good
faith efforts. Upon termination, Agency shall return the balance of the Negotiation Deposit to
Developer.
F. Indemnity
Developer shall indemnify, protect, defend and hold harmless Agency and City and
Agency's and City's respective elected officials, officers, employees, representatives, members,
and agents from and against any and all challenges to this Agreement, or any and all losses,
liabilities, damages, claims or costs (including attorneys' fees) arising from Developer's
negligent acts, errors, or omissions with respect to its obligations hereunder or Developer's
negligent acts, errors or omissions with respect to the Site, excluding any such losses arising
from the sole negligence or sole willful misconduct of the Agency, or resulting from the conduct
40843826.7 -15-
1
of third parties not under contract to, or outside the control of, the Developer. This indemnity
obligation shall survive the termination of this Agreement.
G. 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) or by 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
Telephone: (760) 777-7000
Facsimile: (760) 777-7001
With a copy to: Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson, Esq.
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
To Developer: DDC Desert Development, Inc.
Attn: Theodore R. Lennon, Jr.
74-001 Reserve Drive
Indian Wells, CA 92210
Telephone: (760) 674-2200
Facsimile: (760) 779-1646
With copies to: Manatt, Phelps & Phillips, LLP
Attn: Timi A. Hallem
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Telephone: (310) 312-4217
Facsimile: (310) 312-4224
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
40843826.7 -16- `� {
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.
H. Nonliabilit off City and Agency Officials and Employees
No member, official, employee, or contractor of City or Agency shall be personally liable
to Developer in the event of any default or breach by Agency or for any amount which may
become due to Developer or on any obligations under the terms of the Agreement.
I. 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 where delays or defaults are due to war, terrorism,
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, delays of any contractor, subcontractor or
supplies, acts of the other party, acts or failure to act of City or any other public or governmental
agency or entity, including, without limitation, unreasonable delays in the processing and
issuance of required permits for the construction of the Project by Developer (except that any act
or failure to act of Agency shall not excuse performance by Agency) or any other causes beyond
the reasonable control or without the fault of the party claiming an extension of time to perform,
for up to a maximum cumulative period of one hundred eighty (180) days. Notwithstanding the
foregoing, inability to secure satisfactory financing, tenant commitments, or market and
economic conditions shall not entitle Developer to an extension of time to perform. An
extension of time for any such cause shall be for the period of the enforced delay and shall
r� J
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40843826.7 -17- ' .}
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 knowledge of the
commencement of the cause. In addition, times of performance under this Agreement may be
extended by mutual written agreement by Agency and Developer.
J. Interpretation
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply. The Part and
Paragraph headings are for purposes of convenience only, and shall not be construed to limit or
extend the meaning of this Agreement.
K. Entire Agreement, Waivers, and Amendments
This Agreement integrates all of the terms and conditions mentioned herein, or incidental
hereto, and supersedes all negotiations or previous agreements between the parties with respect
to all or any part of the subject matter hereof. All waivers of the provisions of this 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.
L. Counterparts
This Agreement may be executed in counterparts, each of which, after all the parties
hereto have signed this Agreement, shall be deemed to be an original, and such counterparts
shall constitute one and the same instrument.
M. Successors
40843826.7 - 1 g
This Agreement shall be binding upon and shall inure to the benefit of the permitted
successors of each of the parties hereto.
N. Further Assurances
The parties hereto each agree, without further consideration, to execute such other and
further documents, and to perform such other and further acts, as may be necessary or proper in
order to consummate the transaction set forth in and contemplated by this Agreement, provided,
however, that nothing in this paragraph shall be deemed to require that either Party hereto enter
into the DDA, unless the DDA is duly approved by such party.
O. Severability
In the event any section or portion of this 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
Agreement.
P. Time is of the Essence
Time is of the essence for each of Developer's obligations under this Agreement.
Q. Extension by Agency Executive Director
The Agency Executive Director is authorized, in his sole and absolute discretion, to
extend the time for Developer's performance under this Agreement for a cumulative period of up
to one hundred twenty (120) days.
40843826.7 -19-
�r
R. Confidentiality
Developer acknowledges and agrees that Agency is a public entity with a responsibility
and, in many cases, legal obligation to conduct its business in a manner open and available to the
public. Accordingly, any information provided by Developer to Agency with respect to the Site,
the Project or Developer may be disclosed to the public either purposely, inadvertently, or as a
result of a public demand or order.
IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement
on the respective dates set forth below.
Dated:
ATTEST:
By:
June Greek, Secretary
APPROVED AS TO FORM:
RUTAN &TUCKER, LLP
Agency Counsel
Dated:
LA QUINTA REDEVELOPMENT AGENCY
Bv:
Agency Chair
DDC DESERT DEVELOPMENT, INC., a
California corporation
By: _
Its:
40843826.7 -20-
EXHIBIT 1
DEPICTION OF THE SITE
40843826.7 -21- i 0
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EXHIBIT 2
EARLY ENTRY AGREEMENT
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882/015610-0002
585049.05 a03/11/05 -22- �) r
EARLY ENTRY AGREEMENT
This Early Entry Agreement ("Agreement") is entered into as of , 2005, by
and among the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency") and DDC DESERT DEVELOPMENT, INC., a California corporation
("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, or will execute, concurrent with the execution of this
Agreement, that certain Exclusive Negotiation Agreement with Developer ("ENA"), pursuant to
which Agency and Developer will negotiate the possible purchase of the Property by Developer
for Developer's development on the Property of a commercial project consisting of a hotel,
resort condominiums, and retail uses (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 inspecting, surveying and testing, including geotechnical,
soils and environmental tests, on said real property ("Permitted Work") in connection with the
proposed purchase thereof for development of the Project. Notwithstanding the above, at least
forty-eight (48) hours prior to any of the Related Parties entering the Property, Developer shall
notify Agency of its intention of the same. 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 at least twenty-four (24) hours
prior to Developer's proposed entry, to the person listed in Section 8.8 hereof, at the number
provided therein.
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
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 inspect
all portions of the Property, including without limitation, any structures located thereon,
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.
40853889.1 PAGE 1 OF 6
4 6.Jv
2. Right 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. The term of the License shall commence on full execution hereof and shall
terminate on the earlier of full execution of a disposition and development agreement as
described in the ENA, or one hundred eighty (180) 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 conducting its investigations pursuant hereto and shall restore the
Property to the condition existing prior to Developer's or Related Parties' entry onto the
Property.
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.
6. Indemnity. 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 Related Parties, 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 its Related Parties and the performance of the Permitted
Work, 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 its Related Parties;
(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 its Related Parties on or relating to the Property
(including, without limitation, any claims by any of such Related Parties); and
31
40853889.1 PAGE 2 OF 6
(c) 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 possession of the
Property at such time.
7. Insurance. Developer shall procure and maintain during the term of this
Agreement, including any holdover period, commercial general liability insurance in an amount
not less than Three Million Dollars ($3,000,000). Agency and City and Agency's and City's
respective officers, officials, members, employees, agents, and representatives shall be named
additional insureds on such policy/ies. Developer's insurance required hereunder shall (i) be
primary insurance and not contributory with any other insurance Developer may have; (ii) not
contain any special limitations on the scope of protection afforded to Developer and its officers,
officials, members, employees, agents, and representatives; (iii) be "date of occurrence" and not
"claims made" insurance; (iv) apply separately to each insured against whom claim is made or
suit is brought, except with respect to the limits of the insurer's liability; (v) shall provide that the
policy shall not be cancelled by the insurer or Developer unless there is a minimum of thirty (30)
days prior written notice to Developer and the Agency; and (vi) shall be written by a good and
solvent insurer rated with a BEST rating of no less than B+ Class X, admitted to do business in
California. The deductible or self -insured retention must be declared to the Agency Executive
Director, who in his/her reasonable discretion may require the insurer to reduce such deductible
or self -insured retention (but in no event shall such deductible or self -insured retention be
required to be reduced below Ten Thousand Dollars [$10,000]) with respect to Agency and City
and Agency's and City's respective officers, officials, members, employees, agents, and
representatives; or Developer may be required to procure a bond guaranteeing payment of losses
and related investigation, claims administration, and defense expenses. Developer shall furnish
or cause to be furnished to the Agency Executive Director, prior to the entry on the Property
pursuant to this Agreement, evidence reasonably satisfactory to the Agency Executive Director
(A) of the insurance Developer is required to procure and maintain by this Agreement, and (B)
that Developer or any contractor with whom Developer has contracted for the performance of
work on or around the Property carries workers' compensation insurance as required by law.
The Agency Executive Director may, in his or her sole and absolute discretion, waive any of the
above requirements.
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.
3:
40853889.1 PAGE 3 OF 6
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 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 Officers and Employees. No officer, official, member,
employee, agent, or representative of Agency or Developer shall be personally liable, in the
event of any default or breach by Agency or Developer, respectively, or for any amount which
may become due to Developer or Agency, respectively, 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 otherwise provided, all notices required to be delivered
under this Agreement or under applicable law shall be personally delivered, or delivered by
United States mail, prepaid, certified, return receipt requested, or 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 5:00 p.m. on the second business day following dispatch. 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
33
40853889.1 PAGE 4 OF 6
Lo3
To Developer: DDC Desert Development, Inc.
Attn: Theodore R. Lennon, Jr.
74-001 Reserve Drive
Indian Wells, CA 92210
Telephone: (760) 674-2212
Facsimile: (760) 779-1646
With a copy to: Manatt, Phelps & Phillips
Attn: Timi A. Hallem, Esq.
11355 W. Olympic Boulevard
Los Angeles, CA 90064
Telephone: (310) 312-4217
Facsimile: (310) 312-4224
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.
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first above -written.
"DEVELOPER"
DDC DESERT DEVELOPMENT, INC., a
California corporation
By:
Name:
Its:
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
M
Name:
Its: Executive Director
40853889.1 PAGE 5 OF 6
EXHIBIT "A"
TO EARLY ENTRY AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
[TO BE INSERTED]
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COUNCIL/RDA MEETING DATE: March 15, 2005
Consideration of a Request for Qualifications for the
Design, Development and Operation of Multi -Family
Housing on 15.4 Acres of Agency -Owned Property
Located Northwest of the Intersection of Avenue 48
and Dune Palms Road
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
5-
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Approve the Request for Qualifications (RFQ) to residential developers and operators
for Dune Palms Residential Project (Hammer Property) and authorize staff to circulate
the RFQ.
FISCAL IMPLICATIONS:
None.
BACKGROUND AND OVERVIEW:
The subject property formerly owner by the Hammer family extends from Highway
1 1 1 south to Avenue 48, immediately west of Dune Palms Road. From the outset, it
has been the City's goal to provide for commercial development in the areas near to
Highway 1 1 1, with an affordable housing project located in the southerly portion of
the property. To that end, negotiations have been undertaken with potential buyers for
the commercial parcels and a Parcel Map is in the process of being prepared to
subdivide the property. Staff recommends the Agency initiate a developer and
operator Request For Qualifications (RFQ) process to introduce the residential
development community to this opportunity in order to fulfill the City 's obligations for
providing affordable housing.
The attached RFQ (Attachment 1) has been prepared for circulation to members of the
development community with expertise in such projects. Staff is recommending using
an RFQ versus a Request For Proposals (RFP) in order to assess the market for such
developments and to tap the creativity of leaders in this field. Upon selecting the most
qualified firm or team, the Agency can then work with it to further define and
S:\CITYMGR\STAFF REPORTS ONLYM RFQ.DOC
design the project. Since the Agency (and the recently -certified Housing Element) has
identified general parameters for development of the site, we do not have specific
development criteria that would normally be found in a very detailed RFP.
The RFQ will be circulated to the list of 11 developers and operators who are on file as
having an interest in the site (Attachment 1). In addition, it will be sent to firms with
an acknowledged expertise in the development of affordable housing projects of this
scale. Given the complex funding mechanisms necessary for affordable housing
projects (including, but not limited to State and Federal tax credit programs), such
experience will weigh heavily in the assessment of qualifications statements.
The RFQ provides information regarding the development site, entitlement status,
potential design characteristics and compliance with the California Environmental
Quality Act.
The anticipated schedule envisions transmitting the RFQ packages by March 17, 2005,
receiving the qualification statements by April 18, 2005, staff interviews of the top
candidates on May 13, 2005, and a selection recommendation to the Agency Board by
June 7, 2005.
The selection committee is will consist of the following staff and RSG representatives:
Mark Weiss, Assistant City Manager
Doug Evans, Community Development Director
Frank Spevacek, RSG
George Britton, RSG
This committee will be charged with the responsibility of evaluating the qualifications
statements and forwarding a recommendation of one firm (and an alternate) for
Agency consideration and upon approval, with which the Agency will negotiate a
Disposition and Development Agreement
FINDINGS AND ALTERNATIVES:
The alternatives available to the Agency Board include:
1 . Approve the Request for Qualifications (RFQ) to solicit residential developers
and operators for the Dune Palms Residential Project and authorize staff to
circulate the RFQ; or
2. Do not approve the Request for Qualifications (RFQ) to solicit residential
developers and operators for the Dune Palms Residential Project and authorize
staff to circulate the RFQ; or
3. Provide staff with alternative direction.
02
C•\r1TYAAr.P\CTAFF RFP(1RTR nu Y\i-1 i;_n.ri\RQ Pr-n rinr
Respectfully submitted,
Douglas .Evans
Community Development Director
Approved for submission by:
Thomas P. Genovese, Executive Director
Attachment: 1 . Letter requesting RFQ
00
R•\( ITVMr;R\CTOFF RFPnPTq nu V\RQ PF:n nn
ATTACHMENT 1
Via First -Class Mai/
DATE
NAME
FIRM / COMPANY
ADDRESS
CITY ST ZIP
REQUEST FOR QUALIFICATIONS — AFFORDABLE HOUSING, LA QUINTA, CA
Dear NAME:
This package is designed to introduce your firm to an affordable housing
development opportunity adjacent to the Highway 111 Commercial Corridor in
La Quinta, California. The Agency is seeking a residential development that will be
affordable to families with very low and low incomes. The successful project
design will include a pedestrian orientation to nearby retail and service uses, will be
appropriate in scale for the surroundings (which are varied by direction) and will
exhibit an architectural style that fulfills a "La Quinta image."
The Agency is requesting qualification statements from a limited number of firms to
assess interest in this development opportunity. The selected firm will be invited to
work with the Agency to further design and develop this site.
PROPERTY PROFILE
The approximate 15.4 acre property is situated at the northwest corner of Dune
Palms Road and Avenue 48. It is approximately rectangular in shape: 580' from
east to west and 1200' north to south. It is bounded on the north and northwest
by existing commercial development (Centre at La Quinta, containing the Wal-Mart
SuperCenter and proposed Sam's Club), and on the west by the Santa Rosa
residential community. The Desert Sands Unified School District administrative
offices and school bus facility are located east of the site, across Dune Palms
Road. The Rancho La Quinta residential community is located south of the site,
across Avenue 48.
1� U
The project site is designated Mixed Regional Commercial (M/RC) in the
General Plan. Specifically, the Land Use Element identifies that High Density
Residential (HDR) land uses with an affordable housing component are
appropriate so long as they are located more than 600 feet south of
Highway 111. Moreover, the City's Housing Element, recently certified by
the State Department of Housing and Community Development, has
identified this site as a location for affordable housing.
Residential density in the HDR area allows up to 16 units per acre. Projects
with an affordable component are entitled to a density bonus plus one other
"incentive" from the City. The typical density bonus would be 25 %, or an
adjusted density of approximately 20 units per acre.
The entire site is zoned CR — Regional Commercial. Further, Zoning Code
Section 9.70.030 requires that a specific plan be approved for any
development in this district. To this end, the City is currently preparing a
specific plan for the site. The successful developer will have the opportunity
to help shape this document and its policies and regulations to ensure that
the selected design concept is fully consistent with the regulations.
The City has had success in creating affordable housing at low densities.
This project will have a higher density than is normally the case in La Quinta.
However, given the size and location of the site, it is well suited to providing
housing at higher than normal densities.
Access to the site will be via two driveways on Dune Palms, each providing
for right -out movements. The City is committed to a site plan that does not
take access on Avenue 48.
A Tentative Parcel Map has been prepared which created one lot that
encompasses the project site. Further, a Mitigated Negative Declaration was
approved on December 21, 2004, that assumed the development of
approximately 300 affordable units on the site, with access and other
characteristics as generally described herein.
Lastly, it should be noted that an on -site well site will probably be a
condition of project approval at a location determined acceptable by the
Coachella Valley Water District.
A map and other information about the site are contained in Attachment 1 —
Property Profile.
DEVELOPMENT CONCEPT
The City and its Redevelopment Agency are anxious to provide an affordable
housing complex at this location to help satisfy the needs of its citizens and '.
to implement the adopted Housing Element of the General Plan. The location
of the property in close proximity to multiple employment opportunities along
the Highway 1 1 1 Corridor would seem to indicate that this is a logical place
for family units.
Specifically, the City is seeking a family development that will serve the
needs of both low- and very low-income households through the provisions
of a variety of rental housing types.
Height limitations in the CR Regional Commercial District are to be
determined by the required specific plan. The height limit in the High Density
Residential District is 40'. Both Dune Palms Road and Avenue 48 are
Secondary Image Corridors, as defined in the General Plan (Exhibit 3.6).
The development envelope is impacted as the result of City standards for
heights adjacent to Image Corridors. Specifically, Zoning Code Section
9.50.020 requires buildings within 150 feet of the edge of right-of-way of
both be limited to one story, not to exceed 22 feet in height.
Given the distance that separates the center of the site from surrounding
land uses, a relatively high height limit will have negligible impacts on
neighboring properties. For these reasons, the City is interested in a mixture
of unit types such that lower units will be located on the outer edges of the
site, with higher buildings at the core.
The desired site plan will include some form of green space core or spine
that extends through the site, providing a pedestrian walkway and/or bike
path meandering north to south with various amenities (tot lots,
playgrounds, basketball and handball courts for older kids, pools, etc.,
located along it. There could also be pads with BBQ's, shade structures and
places to sit. This environment will allow adults to supervise children at play
and/or simply to enjoy the green area on their own.
In addition, this corridor may provide an opportunity for drainage; City
requirements include the need to retain flood water on site.
Buildings are encouraged to foster a design consistent with the "La Quinta
Image" and should exhibit such characteristics as:
White stucco walls
Red the roofs
Highly articulated facades
Numerous balconies and patio areas
Attachment 2 contains photos of a much smaller project in Santa Barbara
that exhibits some of the characteristics that are being sought in the
development. It is included to provide a general impression of the types of
building features that may be appropriate in this development.
In addition, the City is interested in amenities in the project such as the
following:
• Community center for the project to house management offices,
lounges and meeting rooms for residents' use, a computer lab and/or
space for "homework clubs" or similar educational ventures. Offices
could also be provided for use by social service agency representatives
who may hold "office hours" at set times during the week.
• Child care center that might serve both the residents of the complex
as well as the employees of the Centre at La Quinta and other nearby
businesses.
QUALIFICATIONS STATEMENTS
The La Quinta Redevelopment Agency is requesting that your firm submit
materials that express you entity's interest, vision and capability to develop
and operate such a development. In particular, your submittal must include:
• Background on Firm (or Team)
Provide a narrative that details whether your firm develops, or
develops and operates, affordable housing complexes, particularly
senior housing complexes. Please describe the firm's specialization. If
teams are proposed that would separately undertake development and
operating responsibilities, please provide information for each firm and
its team members.
• Vision and Development Summary for the Site
In a brief summary (no more than one page) describe the general
approach you envision for the project. Identify your firm's vision for
the development being proposed and describe how the project would
fit into your firm's overall business strategy. Translate this vision into
a development program that identifies dwelling types your firm would
help the Agency develop.
• Experience with Similar Projects
07
1 fl
Include a detailed resume for your firm (or if a team, for each
participating firm) and describe specific experiences with
developing/operating affordable senior housing complexes. Identify
similar projects your firm has developed and/or operates including their
location, size, amenities and special programs that cater to senior
households. Also, provide additional information regarding your firm
(if a development team, include each firm on the team) that identifies
length of time in business, ownership structure, operating structure,
principal offices, and specify which office would service this project.
Further, identify the project manager and personnel that would be
assigned to this project including their level of experience and
responsibility.
• Financial Capability
Identify the firm's or team's capacity to secure the equity and
financing required to implement the proposed development program.
Define the firm's experience securing Tax Credit Financing, if
proposing to use State and/or Federal Tax Credits. Confidential
information can be submitted to the Agency's Economic consultant.
Please disclose if your firm has ever defaulted on its financial
obligations, has had developments that were foreclosed upon, or if
bankruptcy has ever been filed.
• Implementation Time Frame
Outline the time period your firm would propose to initiate site and
development program planning activities upon signing an exclusive
negotiation agreement. Discuss your firm's ability to initiate
construction activities after executing a Disposition and Development
Agreement. For the purpose of this submittal, assume that there are
no further CEQA requirements.
SUBMITTAL REQUIREMENTS
To be considered for this project, ten copies of the qualification statement
package must be submitted by April 18, 2005. Packages should be
delivered to:
Community Development Department
City of La Quinta
Attn: Mr. Doug Evans
78-495 Calle Tampico
P.O. Box 1504
La Quinta, CA 92247
All questions related to this request for proposals are to be submitted via
email to Mr. George Britton (gbritton@webrsg.com). Responses will be
made available by return email, with those of general interest being
forwarded to all firms invited to participate in this process.
SELECTION PROCESS
A selection Committee composed of Agency staff and advisors will review
the submittals and evaluate how each will achieve both redevelopment and
Housing Element goals as well as how each will enhance the City.
Interviews will be held with the top rated teams. Based on the total
evaluation process, the Selection Committee will recommend one firm (and
an alternate) to the Agency Board for selection of a firm with which the
Agency will negotiate a Disposition and Development Agreement to guide
project implementation.
The following time frame for the selection process is anticipated:
Issue Request For Qualifications March 17, 2005
Qualification Statements due April 18, 2005
Selection of Finalists May 11, 2005
Interviews May 13, 2005
Agency Board Consideration June 7, 2005
This solicitation does not commit the La Quinta Redevelopment Agency to
award a contract, to pay any cost incurred with the preparation of a
qualifications statement, or to procure or contract for services or supplies.
The Agency reserves the right to accept or reject any or all submittals
received in response to this request, to negotiate with any qualified source,
or cancel in whole or part this process if it is in the best interest of the
Agency to do so. Prior to negotiations, prospective entities may be required
to submit revisions to their qualifications statements. All proposers should
note that any contract pursuant to this solicitation is dependent upon the
recommendation of the Agency staff and the approval of the Agency Board.
Sincerely,
Douglas R. Evans
Community Development Director
DRE:bjs
Attachment 1 — Property Profile.
Attachment 2 — Development Concept
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COUNCIL/RDA MEETING DATE: March 15, 2005
Joint Public Hearing Between the City Council and
Redevelopment Agency to Consider Adoption of a
Resolution Approving a Purchase and Sale Agreement
Between the La Quinta Redevelopment Agency and
Sam's Real Estate Business Trust Regarding 9.59
Acres of Agency -Owned Commercial Property
Generally Located Southwest of the Intersection of
Highway 1 1 1 and Dune Palms Road
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution of the La Quinta Redevelopment Agency approving a Purchase and
Sale Agreement (Attachment 1) between the La Quinta Redevelopment Agency and Sam's
Real Estate Business Trust regarding 9.59 acres of Agency -owned commercial property
generally located southwest of the intersection of Highway 1 1 1 and Dune Palms Road,
subject to changes approved by the Executive Director and Agency Counsel, and authorize
the Executive Director to execute the required documents.
FISCAL IMPLICATIONS:
This transaction involves the sale of approximately 9.59 acres of land and will generate
approximately $5,121,497 of land sale income. When the Agency purchased this
property as part of a 27.75-acre land transaction, it borrowed $5,800,000 from the City
of La Quinta General Fund to cover the cost of acquiring that portion of the larger parcel
that would be used for commercial development. The loan principal is accruing interest at
the rate of 7% per annum. Land sale proceeds from this sale and the sale of the corner
commercial parcel will retire the remaining amount due to the City. The purchase price is
at or above the fair market value of the property.
BACKGROUND AND OVERVIEW:
In July 2004 the La Quinta Redevelopment Agency purchased a 27.75 acre property to
facilitate the development of affordable housing. The northerly 12 acres of the site was
slated for commercial use; the purchase of the commercial portion of this parcel was
funded through a loan from the City's General Fund. Agency staff was subsequently
contacted by representatives from Sam's Club regarding purchasing up to ten acres of this
property, which is adjacent to the new Wal-Mart SuperCenter, to facilitate development of
a Sam's Club Warehouse Center. Discussions ensued and a purchase price of $12.26 per
square foot of land area was agreed upon by both parties. This price reflects the value
that the Agency paid for the property (as established by MAI appraisal commissioned by
the Agency) plus costs associated with preparing and processing required environmental,
planning and subdivision entitlements. Recent real property appraisals indicate land values
for larger commercial sites in the Highway 1 1 1 corridor of $10.00 to $12.00 per square
foot of land area. According to the appraisal prepared for Sam's Club by an MAI appraiser
at CB Richard Ellis, the value of the property is approximately $1 1.50 per square foot.
Agency staff is informed that Sam's proposes to purchase additional property to the west
from Stamko Development for $10.00 per square foot. Staff therefore believes that the
sale will produce proceeds at or above the property's fair market value.
The attached Purchase and Sale Agreement facilitates the sale of two parcels which
consist of a total of approximately 9.59 acres to Sam's Real Estate Business Trust, which
will combine this property with other property it is purchasing from Stamko. The
combined parcels will be of sufficient size to accommodate the development of a Sam's
Club Warehouse Center and a Sam's gas station along Dune Palms. The Agreement
includes the standard provisions the Agency incorporates when selling property, and
includes a right of repurchase if the property is not developed as proposed. This sale,
however, is contingent upon Sam's Real Estate closing a land purchase transaction with
Stamko for the rest of the land it requires and obtaining the necessary land use
entitlements. The Planning Commission is scheduled to consider the Sam's Site
Development Permit on March 22, 2005. The Architectural Review Board has previously
approved the landscaping and architecture for the structures. It is anticipated that the
closing will occur by June 1, 2005. Sam's must make a $50,000 deposit to open the
transaction. The amount of the deposit will increase monthly if the transaction does not
close by June 1, 2005.
The Planning Commission and the City Council have already considered and approved an
amendment to the Center at La Quinta Specific Plan to incorporate this area. The use
proposed by Sam's is consistent with the Specific Plan. In addition, an Environmental
Assessment (2004-524) was prepared for this project and the remaining development of
the Specific Plan area. It fully assessed the impacts of the development of this area as
well as the affordable housing project on the southern portion of the site. On the basis of
that Environmental Assessment, the City Council certified a Mitigated Negative
Declaration of environmental impact on December 21, 2004. A Notice of Determination
was filed with the County Clerk on December 22, 2004. The Staff and the City's
consultants have carefully reviewed the scope of the project which is proposed by Sam's
and have concluded that the potential impacts of its construction and operation are well
within those previously analyzed in the Environmental Assessment and that no additional
impacts will result from the project. In addition, there is no new information or change in
circumstances which would trigger any obligation to complete further environmental
analysis. Therefore, staff has determined that no further environmental review is
necessary pursuant to California Public Resources Code Section 21166.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Redevelopment Agency Board include:
1 . Adopt a Resolution of the La Quinta Redevelopment Agency approving a Purchase
and Sale Agreement between the La Quinta Redevelopment Agency and Sam's Real
Estate Business Trust regarding 9.59 acres of Agency -owned commercial property
generally located southwest of the intersection of Highway 1 1 1 and Dune Palms
Road subject to changes approved by the Executive Director and Agency Counsel,
and authorize the Executive Director to execute the required documents; or
2. Do not adopt a Resolution of the La Quinta Redevelopment Agency approving a
Purchase and Sale Agreement between the La Quinta Redevelopment Agency and
Sam's Real Estate Business Trust regarding 9.59 acres of Agency -owned
commercial property generally located southwest of the intersection of Highway
1 1 1 and Dune Palms Road, and do not authorize the Executive Director to execute
the required documents; or
3. Provide staff with alternative direction.
Respectfully submitted,
Douglas.A. Evans,
Community Development Director
Approved for Submission by:
Thomas P. Genovese, Executive Director
Attachment: 1. Purchase and Sale Agreement
- VO,
RESOLUTION NO. RA 2005-
A RESOLUTION OF THE LA QUINTA REDEVELOPMENT
AGENCY APPROVING A PURCHASE AGREEMENT
BETWEEN THE AGENCY AND SAM'S REAL ESTATE
BUSINESS TRUST FOR THE PROPERTY LOCATED AT
THE INTERSECTION OF HIGHWAY 111 AND DUNE
PALMS ROAD
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 § 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 May 16, 1989, by Ordinance No. 139; and
WHEREAS, the Agency staff has negotiated a Purchase Agreement
("Agreement") with Sam's Real Estate Business Trust, a Delaware statutory trust
("Sam's"), pursuant to which the Agency is to sell to Sam's certain real property
located within the Project Area at the intersection of Highway 1 1 1 and Dune Palms
Road (the "Property") comprising approximately 9.59 acres for Twelve Dollars and
Twenty -Six Cents ($12.26) per square foot, with the purchase price estimated to
be Five Million One Hundred Twenty -One Thousand Four Hundred Ninety -Two
Dollars ($5,121,492.00) pursuant to the terms and conditions set forth in the
Agreement; and
WHEREAS, the Planning Commission and the City Council have
considered and approved an amendment to the Center at La Quinta Specific Plan
(the "Specific Plan") to incorporate the Property. The use proposed by Sam's is
consistent with the Specific Plan. In addition, an Environmental Assessment
(2004-524) was prepared for this development and the remaining development of
the Specific Plan area. The Environmental Assessment fully assessed the impacts
of the development of these areas as well as the affordable housing project on the
southern portion of the specific plan area. On the basis of that Environmental
Assessment, the City Council certified a Mitigated Negative Declaration of
Environmental Impact on December 21, 2004. A Notice of Determination was filed
with the County Clerk on December 22, 2004. City Staff and the City's
consultants have carefully reviewed the scope of the development proposed by
Sam's and have concluded that the potential impacts of its construction and
operation are well within those previously analyzed in the Environmental
Assessment and that no additional impacts will result from the project. In addition,
i��
Resolution No. RA 2005-
Sam's Real Estate Business Trust Purchase Agreement
Adopted: March 15, 2005
Page 2
there is no new information or change in circumstances which would trigger any
obligation to complete further environmental analysis. Therefore, City staff has
determined that no further environmental review is necessary pursuant to California
Public Resources Code Section 21166.
WHEREAS, Health and Safety Code Section 33431 requires that the
Agency Board and the City Council conduct a noticed joint public hearing with
respect to the Agency's sale of the Property pursuant to the Agreement; and
WHEREAS, the joint public hearing has been conducted in accordance
with applicable requirements of law; and
WHEREAS, the City Council and the Agency have considered all the
information and evidence presented by the City/Agency staff and presented by
persons wishing to appear and be heard concerning the Agency's sale of the
Property pursuant to the Agreement; and
WHEREAS, the 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 Agency hereby determines that the Agency's sale of
the Property pursuant to the Agreement is necessary to effectuate the purposes of
the Redevelopment Plan;
NOW, THEREFORE, BE IT RESOLVED BY THE LA QUINTA
REDEVELOPMENT AGENCY AS FOLLOWS:
1. That the above recitals are true and correct and incorporated herein.
2. That the La Quinta Redevelopment Agency hereby finds and determines that
the Agreement effectuates the purposes of the Community Redevelopment
Law (Health & Safety Code § 33000 et seq.) and of the Redevelopment Plan
and is in the best interests of the citizens of the City of La Quinta.
3. The Agreement, a copy of which is on file with the Agency Secretary, is
hereby approved. The Agency Executive Director and Agency Counsel are
hereby authorized and directed to make final modifications to the Agreement
that are consistent with the substantive terms of the Agreement approved
hereby, and the Agency Executive Director is authorized to thereafter sign
the Agreement on behalf of the Agency.
Resolution No. RA 2005-
Sam's Real Estate Business Trust Purchase Agreement
Adopted: March 15, 2005
Page 3
4. The Agency Executive Director is authorized and directed, on behalf of the
Agency, to 0) sign such other and further documents, including but not
limited to 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 Agreement.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the
La Quinta Redevelopment Agency held this 15th day of March, 2005, by the.
following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
LEE OSBORNE, Agency Chair
City of La Quinta, California
ATTEST:
JUNE S. GREEK, Agency Secretary
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, Agency Counsel
City of La Quinta, California
ATTACHMENT 1
Store # 4941-00
La Quinta, California
PURCHASE AGREEMENT
Between
SAM'S REAL E STATE BUSINESS TRUST,
a Delaware statutory trust
(" Sam's")
and
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
("Seller")
TABLE OF CONTENTS
1. Sale and Purchase...................................................................................1
2. Purchase Price.......................................................................................1
3. Escrow.................................................................................................2
4. Survey..................................................................................................2
5. Due Diligence Period...............................................................................2
6. Title.....................................................................................................3
A. Title Insurance.............................................................................. 3
B. Title and Deed.............................................................................. 4
7. Condemnation........................................................................................4
8. Taxes and Assessments.............................................................................4
9. Transfer and Sales Taxes..........................................................................5
10. Time of the Essence/Defaults/Remedies........................................................5
A. Default by Sam's.......................................................................... 5
B. Default by Seller............................................................................ 6
C. Notice of Default........................................................................... 6
11. Right of Entry........................................................................................6
12. Brokerage Fees.......................................................................................7
13. Utilities.................................................................................................7
14. Contingencies and Seller's Warranties........................................................7
A. Governmental Approvals To Be Obtained by Sam's. ............................ 7
B. Intentionally Omitted..................................................................... 7
C. Inspections and Soils Tests............................................................... 7
D. Condition of the Property................................................................ 9
E. Natural Hazard Disclosure............................................................... 9
F. Intentionally Omitted.....................................................................
9
G. Cut / Fill Grading License...............................................................
9
H. As -Is / Release............................................................................
11
I. Option Agreement.......................................................................
12
J. Adjacent Property.......................................................................
12
15.
Notices...............................................................................................12
16.
Closing . ...... ........ ....... ..... ...................... ........ .......... 0...... 0.................. 0.
13
17.
Closing Costs.
13
18.
Time of Essence; Acceptance. ............. 000 ............... 0 0 0 0 0 0 ........ o ........ o o o...
13
19.
Entire Agreement. . o o .... o o o ..... 000 ................ 0.00 ...........................................
13
20.
eadings..............................................................•.............................•
Headings........... o o o o ...... o ....... 00 ......... 0 .... 0 .......... 0 0 0 0...... 0 0 0 ...... oo ...........
13
21.
Modifications.......................................................................................
13
22.
Successors . ......... .................. .......... ......... ........ .......... ...................... .......
13
23.
Non Foreign Affidavit / Withholding. . ............. 00.0000 .... 0-0.0 .... 0.0 ........ 000 .......
14
24.
Effective Date. 000000000s0000000000-oosooseeo-000000.s.-s00000000-000000000000s0000000.o.s0000000 ...
14
25.
Recording of Memorandum. ........ 00.0 ...... 0 .......... o .......... oo.o ......... 0
14
26.
Additional Warranties by Seller...............................................................
14
27.
Survival..............................................................................................15
28.
Condition of Property. ......... 0000 .......
15
29.
Dates of Performance............................................................................
15
30.
Attorneys' Fees................................................................................0..
15
31.
Prevailing Wage. ... o ..... oo .................................... 00000 ..... 0000 ........... 0000 ......
15
32.
Counterparts. ... o ........................... o ... o o .................................................
16
33. Applicable Law / Forum......................................................................... 16
34. City as Third Party Beneficiary............................................................... 16
35. City Not Obligated Hereunder................................................................ 16
34. Non -Liability of Seller Officials and Employees ........................................... 16
SCHEDULE OF EXHIBITS
THEPROPERTY............................................................................. Exhibit CAA!!
DEPICTION OF ADJACENT PARCELS ........................................... Exhibit "A-1"
LAST RECORDED VESTING DEED ................................................... Exhibit "B "
INSTRUCTIONS TO SURVEYORS..................................................... Exhibit "C"
REAL PROPERTY TAX GUIDELINES ................................................ Exhibit "D"
OPTIONAGREEMENT..................................................................... Exhibit "E "
ASSIGNMENT AND ASSUMPTION AGREEMENT ............................... Exhibit "F"
TRANSFEROR FORM...................................................................... Exhibit "G
99
This
La Quinta, California
Store # 4941-00
PURCHASE AGREEMENT
Purchase Agreement ("Agreement") is dated as of the day of
_, 2005, between LA QUINTA REDEVELOPMENT AGENCY, a public body,
corporate and politic, formed under the California Community Redevelopment Law
("Seller"), and SAM'S REAL ESTATE BUSINESS TRUST, a Delaware statutory trust
("Sam's").
WITNESSETH:
1. Sale and Purchase. Seller shall sell and Sam's shall purchase for the
contemplated construction of a new Sam's Club (and not for the relocation of an existing
Sam's Club), subject to the terms and conditions herein, an approximately 9.59 acre tract of
land (the "Property") more particularly described in Exhibit "A" attached hereto and made a
part hereof located in or near the City of La Quinta, Riverside County, California. Seller
warrants that it owns the Property. Seller has provided Sam's with the last vesting deed
recorded in the Official Records of Riverside County with respect to the Property, which is
attached hereto as Exhibit "B", and incorporated herein by reference. Within thirty (30) days
of the execution of this Agreement, Seller shall instruct the Title Company (as hereinafter
defined) to provide Sam's with copies of each instrument recorded in the last three (3) years
with respect to the Property.
2. Purchase Price. The purchase price, subject to the provisions of Section 4.
contained herein, for the Property shall be Five .Million One Hundred Twenty -One Thousand
Four Hundred Ninety -Two and No/100 Dollars ($5,121,492.00) computed at Twelve and
26/ 100 Dollars ($12.26) per square foot (the "Purchase Price") payable as follows:
(a) Fifty Thousand and No/ 100 Dollars ($50,000.00) shall be paid within ten (10)
business days after the Effective Date of this Agreement to the Escrow (as
defined below) to be held by the Escrow Holder (as defined below) in an interest
bearing escrow account (the "Initial Deposit") with interest accruing to Sam's;
and
(b) If Closing (as defined below) has not occurred on or before June 1, 2005, and
the Escrow has not been terminated in accordance with the terms and conditions
of this Agreement, then on June 1, 2005, Sam's shall increase its Initial
Deposit by the amount of One Hundred Thousand and No/ 100 Dollars
($100,000.00), thereby increasing the Deposit to One Hundred Fifty Thousand
and No/ 100 Dollars ($150,000.00) . Thereafter, the Deposit shall be increased
by Fifty Thousand and No/100 Dollars ($50,000.00) on the first day of each
month until the date of the Closing (each an "Additional Deposit"). The term
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W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc
1
"Deposit " for the purposes of this Agreement shall include the Initial Deposit,
plus the aggregate of all Additional Deposits made by Sam's, all of which shall
be applicable to the Purchase Price.
(c) The balance of the Purchase Price shall be paid on the date of the closing of this
sale (the "Closing") by certified check or F ederal wire transfer.
3. Escrow. Sam's or Seller shall open an escrow (the "Escrow") by delivering a
fully executed copy of this Agreement to Stewart Title Company, 2 North LaSalle Street, Suite
1400, Chicago, Illinois 60602 (the "Escrow") as escrow holder ("Escrow Holder"), within
ten (10) calendar days of both parties execution of this Agreement which shall provide for
closing as provided herein. This Agreement shall constitute joint escrow instructions. Escrow
fees shall be subject to the review and approval of Sam's and Seller, and then shall be shared
in the manner provided herein. The "Close of Escrow" or the "Closing" shall be the date
Seller's grant deed conveying fee title to the Property to Sam's ("Grant Deed") is recorded.
At least ten (10) business days prior to the Closing, Seller shall execute the Grant Deed and
shall provide such original Grant Deed to Escrow, to be held by Escrow Holder until the Close
of Escrow, and Escrow Holder shall provide a copy of such Grant Deed to Sam's. For all
purposes, the date of the "opening of escrow" shall be the date of this Agreement. In the
event of any inconsistency between any supplemental escrow instructions required by Escrow
Holder and this Agreement, this Agreement shall control, notwithstanding the fact that either
party may have intentionally or inadvertently executed such inconsistent instructions. Each
party hereby instructs the Escrow Holder to prepare the settlement statements for the Closing
on HUD forms and further instructs the Escrow Holder to show both the buyer and seller
columns on a single settlement statement to be distributed to both parties.
4. Survey. Sam's shall order a certified ALTA boundary line and topographic
survey of the Property (the "Survey") within five (5) business days of the execution of this
Agreement. Sam's shall pay for such Survey. Said Survey shall (i) be prepared by a
registered land surveyor pursuant to the instructions attached hereto as Exhibit "C",
(ii) contain an accurate legal description of the Property, and (iii) depict, and note the
applicability of, every title exception contained in the Commitment (as hereinafter defined in
Section 5). If the Survey reveals that the actual area is more or less than the approximation
shown above, the Purchase Price to be paid hereunder shall be adjusted accordingly; provided,
however, that no reduction in the Purchase Price will be made for an area which is conveyed
to Sam's, but which is s ubject to easements, dedications, or right-of-way requirements.
5. Due Diligence Period. In addition to any other conditions to Sam's obligations
under this Agreement, for the first forty-five (45) days following the Effective Date ("Due
Diligence Period"), Sam's shall have the right to review and approve or disapprove the
matters set forth below, and Sam's obligations hereunder shall be conditioned upon Sam's
approval of such matters, in its sole and absolute discretion. The failure of Sam's to approve
or disapprove such matters by written notice to Seller on, or before, the expiration of the Due
Diligence Period shall be conclusively deemed to be disapproval thereof by Sam's. If Sam's
disapproves any such matter, and Seller is unwilling or unable to resolve such matter to Sam's
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W764\000\Doc\Redevelopment Agency\Purchase Agmnt 011.doc \ �_ sa
satisfaction, in Sam's sole discretion, or if Sam's is deemed to have disapproved any such
matter, then Sam's shall elect by written notice to Seller, in its sole discretion, to either:
(i) terminate this Agreement, in which event the Deposit shall be returned to Sam's, together
with all interest accrued thereon, and neither party shall have any further rights or obligations
hereunder, except as otherwise provided in this Agreement, or (ii) waive such disapproval, or
deemed disapproval, and proceed with the Closing (as defined below). In the event that
Sam's is required to elect either (i) or (ii) above, and Sam's fails to make such election,
Seller shall have the right to give written notice of termination to Sam's ("Termination
Notice"), in which event this Agreement shall terminate fifteen (15) days after Sam's receives
such Termination Notice, the Deposit shall be returned to Sam's, together with all interest
accrued thereon, and neither party shall have any further rights or obligations hereunder;
provided, however, that upon receipt of the Termination Notice, or upon receipt of Seller's
Title Notice (as defined in Section 6. A), whichever is later, Sam's shall have ten (10) days to
provide Seller written notice of its election to approve the matters set forth in this Section 5
and continue this Agreement, in which event this Agreement shall continue in full force and
effect. The matters subject to Sam's approval during the Due Diligence Period include,
without limitation:
(a) Exceptions which are disclosed in the Commitment (as hereinafter
defined in Section 6.A);
(b) Matters disclosed by the Survey;
(c) Matters disclosed by Sam's physical inspection of the Property pursuant
to Section 11 and Section 14. C . ; and
(d) Approval by Sam's Real Estate Committee of the placement of a store
on the Property pursuant to Section 14.F.
In the event that, prior to the Close of Escrow, there is a change in any of the
matters set forth in Sections 5(a), 5(b), or 5(c) previously approved by Sam's pursuant to this
Section 5, Sam's shall have fifteen (15) days from the date Sam's first learns of such change,
to approve or disapprove such change, in its sole and absolute discretion. In the event that
Sam's fails to approve or disapprove such matters by written notice to Seller on, or before,
the expiration of such fifteen (15) day period, such matter shall be deemed disapproved and
Seller shall have the right to deliver a Termination Notice to Sam's, in which event the
Deposit, together with all interest accrued thereon, shall be returned to Sam's, and neither
party shall have any further rights or obligations hereunder; provided, however, that upon
receipt of such Termination Notice, Sam's shall have ten (10) days to provide Seller written
notice of its election to approve such changed matters and continue this Agreement, in which
event this Agreement shall continue in full force and effect.
6. Title.
A. Title Insurance. Sam's shall order a standard form ALTA Owner's Title
Commitment Policy (the "Commitment") covering the Property and issued by
Stewart Title Company, 2 North LaSalle Street, Suite 1400, Chicago, Illinois
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W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc ^ ��
60602 ("Title Company"), together with copies of all instruments, if any,
referred to in the Commitment as exceptions to title. The Commitment shall
also contain the Title Company's commitment to issue such California Land
Title Association endorsements ("CLTA Endorsements") to the title policy as
Sam's or its lender shall require. Sam's shall give notice in writing to Seller of
any defects in or objections to the title as so evidenced. Seller shall, within
fifteen (15) days of receipt of said notice, provide Sam's written notice
indicating Seller's election to either: (i) clear the title of the defects and
objections so specified, or (ii) not to clear the title of such defects and objections
("Seller's Title Notice"). Seller's failure to provide Seller's Title Notice
shall be deemed Seller's election not to cure such defects and objections. In
the event that Seller elects to cure such defects and objections in Seller's Title
Notice, Seller's failure to clear the title of defects and objections on, or before,
the Closing shall constitute a default on the part of the Seller and be subject to
the provisions of Section 10 contained herein.
B. Title and Deed. At the Closing, Seller shall convey to Sam's title to the
Property, free and clear of any and all encumbrances, except the Permitted
Exceptions (the parties agree to list the Permitted Exceptions on Exhibit "B" to
the Grant Deed, which Grant Deed shall be in substantially the form of Exhibit
"G" , attached hereto and incorporated herein by reference) . Those exceptions
which are approved by Sam's pursuant to Section 5 shall be referred to as
"Permitted Exceptions". At the Closing, Sam' s shall also be able to obtain an
ALTA Owner's Extended Coverage Title Insurance Policy (the "Policy")
issued by the Title Company, insuring title to Sam's in the full amount of the
Purchase Price and containing no exceptions or conditions other than the
Permitted Exceptions, and containing the CLTA Endorsements which Sam's or
its lender shall require.
7. Condemnation. If, prior to the Closing, all or any part of the Property shall be
condemned by governmental or other lawful authority, Sam's shall have the option of
(a) completing the purchase, in which event all condemnation proceeds or claims thereof shall
be assigned to Sam's, or (b) canceling this Agreement, in which event the Deposit shall be
returned to Sam's and this Agreement shall be terminated with neither party having any rights
against the other.
8. Taxes and Assessments. Real property taxes and assessments, water rates and
sewer charges and rents, if any, shall be prorated and adjusted on the basis of the actual days
in the calendar year, with Sam's being allocated for all such taxes and assessments beginning
as of the day after the Closing Date. Seller shall pay all such taxes and assessments
attributable to any period of time on, or before, the Closing Date. Taxes for all prior years
shall be paid by Seller. If the Closing shall occur before the tax rate is fixed for the then
current year, the apportionment of taxes shall be upon the basis of the tax rate for the
preceding year applied to the latest assessed valuation, with the proration to be adjusted
between the parties based on actual taxes for the year in which Closing occurs at the time such
4
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W764\000\Doc\Redevelopment Agency\Purchase Agmnt 011.doc
l„j,
actual taxes are determined. Furthermore, Escrow Holder shall cause to be completed the Real
Property Tax Guidelines For Wal-Mart Built Stores attached hereto as Exhibit "D" and upon
completion will forward to the Real Estate Manager. Seller hereby agrees to pay, reimburse,
indemnify, defend and hold Sam's harmless from any supplemental assessments, or taxes or
assessments, and any late charges or penalties associated therewith, levied by the taxing
authorities after the close of Escrow arising from the time period before the close of Escrow.
9. Transfer and Sales Taxes. The expense and cost of all Federal, state and local
documentary or revenue stamps, transfer, sales and other taxes, if any, relating to the sale of
the Property shall be paid by Seller on the date of Closing. Both parties agree to execute any
tax returns required to be filed in connection with any such taxes.
10. Time of the Essence/Defaults/Remedies. Time is of the essence of this
Agreement and failure to comply with this provision shall be a material breach of this
agreement. Subject to the provisions of this Section 10, if the Escrow fails to close as
provided herein, Sam's or Seller may at any time thereafter give written notice to Escrow
Holder to cancel the Escrow, and pay or return the Deposit to the party entitled hereto under
the terms hereof, and return all other money and documents in Escrow to their respective
depositors. Escrow Holder shall comply with such notice without further consent from any
other party to the Escrow or from any broker involved in the transaction. Cancellation of
Escrow as provided herein shall be without prejudice to whatever legal rights Sam's and
Seller may have against each other.
A. Default by Sam's. IF SAM'S FAILS TO COMPLETE SAID PURCHASE
AS HEREIN PROVIDED BY REASON OF ANY DEFAULT BY SAM'S,
SELLER SHALL BE RELEASED FROM OBLIGATION TO SELL THE
PROPERTY TO SAM'S, BUT SELLER, BY INITIALING THIS
PARAGRAPH, SHALL HAVE RELEASED SAM'S FROM ANY
CLAIMS OR CAUSES OF ACTION ARISING OUT OF SUCH
DEFAULT, AND SELLER SHALL HAVE AGREED THAT SELLER
SHALL RETAIN THE "DEPOSIT" AS LIQUIDATED DAMAGES, AND
THAT SUCH RETENTION SHALL BE SELLER'S SOLE REMEDY
AGAINST SAM'S IN REGARD TO SUCH DEFAULT. THE PARTIES
HERETO HAVE CONSIDERED THE AMOUNT OF DAMAGES WHICH
SELLER IS LIKELY TO INCUR IN THE EVENT OF A DEFAULT OR
BREACH HEREUNDER BY SAM'S , AND THE PARTIES HERETO
HAVE AGREED THAT THE DEPOSIT IS A REASONABLE
APPROXIMATION AND LIQUIDATION OF SELLER'S POTENTIAL
DAMAGES, CONSIDERING ALL OF THE CIRCUMSTANCES
EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE
RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO
SELLER THAT REASONABLY COULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE
COSTLY OR INCONVENIENT. THE RECEIPT AND RETENTION OF
SUCH AMOUNT BY SELLER IS INTENDED TO CONSTITUTE THE
5
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc A'
LIQUIDATED DAMAGES TO SELLER PURSUANT TO THE
CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO
CONSTITUTE A FORFEITURE OR PENALTY WITHIN THE
MEANING OF THE CALIFORNIA CIVIL CODE, OR ANY SIMILAR
PROVISION. SAID AMOUNT OF LIQUIDATED DAMAGES SHALL BE
IN LIEU OF ANY OTHER REMEDIES, DAMAGES OR SUMS DUE OR
PAYABLE TO SELLER. IN PLACING THEIR INITIALS AT THE
PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE.
SAM' S SELLER
B. Default by Seller. If Seller defaults under this Agreement, Sam's sole remedy
shall be to record a lis pendens and enforce Sam's right to specific performance
and related injunctive relief and accordingly, Seller hereby acknowledges that
the Property is unique and that no other remedies are available to Sam's.
Sam's waives any right to bring an action for damages against Seller, the City
of La Quinta, or the officers, officials, employees, representatives, members, or
agents of Seller or the City, including, but not limited to any action for actual
and/or consequential damages.
C. Notice of Default. In the event that either party is in default of any provision
hereof, the non -defaulting party, as a condition precedent to its remedies, must
give the defaulting party written notice of the default. The defaulting party shall
have ten (10) business days from the receipt of such notice to cure the default;
provided, however, that if the default cannot be reasonably cured in ten (10)
business days, the defaulting party shall have such longer period as is
reasonably necessary to cure the default, so long as the defaulting party
commences to cure the default within such ten (10) day period and diligently
pursues the cure to completion. If the default is timely cured, this Agreement
shall continue in full force and effect. If the default is not timely cured, the
non -defaulting party may pursue its applicable remedies set forth in this
Agreement.
11. Right of Entry. Subject to the provisions of Section 14C, at any time prior to
the Closing, and at Sam's sole expense, Sam's or its authorized agents shall have the right to
enter upon the Property for any lawful purpose, including without limitation making such
surveys and site analyses, test borings and engineering studies, and to erect such signs as
Sam's may deem necessary, provided such signs are necessary to keep the site safe during
such testing. Sam's shall indemnify and hold Seller harmless from and against any and all
claims and liens arising out of any act or failure to act of Sam's or its authorized agents as a
result of their respective activities on the Property.
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12. Brokerage Fees. Sam' s shall be responsible for the payment of the brokerage
fee or commission, payable only upon the closing of the sale contemplated herein, to Rothbart
Development Corporation, at 1801 Avenue of the Stars, Suite 920, Los Angeles, California
90067. Such fee or commission shall be equal to six percent (6 %) of the first One Million
Five Hundred Thousand and No/ 100 Dollars ($1, 500, 000.00) of the Purchase Price plus three
percent (3 %) of the balance of the Purchase Price, not to exceed $175,000.00. Both parties
represent that no other broker is involved in this Agreement and each party agrees to
indemnify the other against brokerage or commission claims arising out of the indemnifying
party's actions, and Sam's agrees to indemnify Seller in connection with any brokerage fee
payable to Rothbart Development Corporation pursuant to this Section 12.
13. Utilities. To Seller's actual knowledge, utility services are available to the
Property, and there is not a moratorium against connection to such services, or quantitative or
qualitative limitation on such services.
14. Contingencies and Seller's Warranties.
A. Governmental Approvals To Be Obtained by Sam's. Sam's and Seller's
obligations to close Escrow are conditioned upon Sam's obtaining approval of
the following: (i) a conditional use permit for the operation of a gas station on a
portion of the Property, and (ii) a site development permit for the construction
of a membership discount store (individually and collectively the
"Governmental Approvals"). Sam's agrees, at its sole expense, to file
applications for all of the Governmental Approvals within thirty (30) calendar
days after the Effective Date of this Agreement, and thereafter to diligently
pursue the applications and processing to completion. Seller shall execute all
necessary and appropriate owner consent forms, and shall, at no expense to
Seller, reasonably cooperate with Sam's efforts to obtain the Governmental
Approvals. Neither Seller nor Sam's may execute any application or
instrument as an agent of the other. The Governmental Approvals shall be
considered , to have been approved for purposes of this Agreement on the first
date after which all of the following has occurred: (1) the Governmental
Approvals have been issued by the City of La Quinta; (2) the Governmental
Approvals are no longer subject to any administrative appeal within the City;
and (3) the statute of limitations under the California Environmental Quality Act
has expired. If, despite Sam's commercially reasonably effects to obtain the
Governmental Approvals, the Governmental Approvals have not been approved
on or before June 1, 2005, either party may terminate this Agreement, and the
Agreement shall be of no further force and effect, and Escrow shall return to
Sam's the Deposit, toge ther with all interest accrued thereon.
B. Intentionally Omitted.
C. Inspections and Soils Tests. Sam's shall have the right, at Sam's expense,
and after providing Seller with three (3) business days advance written notice, to
7
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc v 3 17
select licensed engineers, contractors, and/or other qualified professional(s) to
make "Inspections" (including tests, surveys, other studies, inspections,
investigations and interviews of persons familiar with the Property) concerning
the Property, including but not limited to tests of structures, wells, septic tanks,
and underground storage tanks on the Property, soils, geologic hazards, utility
lines and systems, possible environmental hazards such as asbestos,
formaldehyde, radon gas, methane gas, pesticide residues, oil and gas deposits,
and other "Hazardous Materials" as defined in Section 26, below.
Notwithstanding the foregoing, in no event shall Sam's conduct any intrusive
testing procedures on the Property without Seller's prior written consent, which
consent shall not be unreasonably withheld. Any such Inspections shall be made
during normal business hours and Seller shall have the right, but not the
obligation, to accompany Sam's during such Inspections. Seller shall deliver to
Sam's, within ten (10) days of the date hereof, copies of any reports of similar
Inspections of which Seller is aware, and Seller's delivery of such existing
Inspection reports shall be Seller's representation to Sam's that Seller is not
aware of the existence of any others. Sam's shall keep the Property free and
clear of any liens, and repair any damage to the Property arising as a result of
such Inspections. Upon receipt of reports of such Inspections, Sam's shall
promptly deliver one copy of the same to Seller.
In addition to the foregoing, as a condition to any such entry, Sam's shall (i)
conduct all such 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 Inspections; (ii) comply with all applicable laws and
governmental regulations; (iii) 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; (iv)
provide to Seller prior to initial entry a certificate of insurance evidencing that
Sam's and/or the persons entering the Property have procured and have in
effect an all-risk public liability insurance policy meeting the following
requirements: (1) the insurance shall be written on a per occurrence and not
claims -made basis; (2) the amount of insurance shall be a combined single limit
of not less than Two Million Dollars ($2,000,000.00) with a deductible or self -
insured retention amount of not more than One Hundred Thousand Dollars
($100,000); (3) the policy shall name or be endorsed to Seller and the City and
their respective officers, officials, members, employees, agents, and
representatives (collectively, "Seller/City & Seller/City Personnel") as
additional insureds; (4) the insurance shall not contain any special limitations on
the scope of protection afforded to Seller/City & Seller/City Personnel; (5) the
policy shall not be canceled by the insurer or Sam's unless there is a minimum
of thirty (30) days prior written notice to Seller; (6) the insurer shall waive
subrogation rights against the Seller/City & Seller/City Personnel; and (7) the
insurance shall be primary insurance and not contributory with any insurance
any of the Seller/City & Seller/City Personnel may have; and (8) the insurance
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 011.doc 8
�� -
shall apply separately to each insured against whom a claim is made or suit is
brought, except with respect to the limits of the insurer's liability; (vi)
following Sam's entry, repair any and all damage to the Property caused by
such Inspections in a timely manner, and (vii) indemnify Seller pursuant to the
provisions of Section 11 contained herein.
D. Condition of the Property. Seller warrants that Seller has no actual knowledge
of any notice of violations of city, county, state, federal, building, land use,
fire, health, safety, environmental, Hazardous Materials or other governmental
or public agency codes, ordinances, regulations, or orders with respect to the
Property, or as to health, safety, environmental, or hazardous materials codes,
ordinances, regulations or orders relating to any lands adjacent to the Property.
Seller warrants that Seller has no knowledge of any litigation, pending or
threatened with respect to the Property, Seller's interest therein, or which
would otherwise inhibit Sam's obtaining clear title to the Property. Seller also
warrants that it has no actual knowledge of any physical, legal, economic or
political facts, circumstances, problems or governmental actions with respect to
the Property which should be disclosed by Seller or its agents under California
law, except those which have been disclosed to Sam's in detail, in writing. As
used herein, "Know ledge" shall mean the actual knowledge of Seller's
Executive Director, without any duty of independent investigation or inquiry.
The foregoing warranties shall be true as of the date of this Agreement and of
the close of Escrow. If, prior to the close of Escrow, Sam's learns that any of
the foregoing warranties or any disclosures by Seller are misleading, incomplete
or otherwise incorrect, Sam's may utilize any of its remedies provided in this
Agreement.
E. Natural Hazards Disclosure. Within thirty (30) days of the execution of this
Agreement, Seller shall deliver to Sam's a natural hazards disclosure report
disclosing (to the extent applicable) whether or not the Property is located within
(i) a special flood hazard zone designated by the Federal Emergency
Management Agency; (ii) an area of potential flooding shown on an inundation
map under Government Code § 8589.5; (iii) a very high fire hazard severity
zone designated by Government Code § 51178; (iv) a wildland area that may
contain substantial forest fire risks and hazards under Public Resources Code §
4136; (v) an earthquake fault zone under Public Resources Code § 2621; or
(vi) a seismic hazard zone under Public Resources Code § 2690. All costs of
providing the Natural Hazards Disclosure Report shall be paid by Sam's.
F. Intentionally Omitted.
G. Cut / Fill Grading License. For a period of twelve (12) months following the
Close of Escrow, Sam's shall have the right and license to enter onto that
certain real property located in front and to the north of the Property in the
location generally depicted on Exhibit "A-1 ", attached hereto and incorporated
9
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 011.doc �"'
herein by reference ("Corner Parcel") in order to grade the Corner Parcel and
remove the trees located on such Corner Parcel; provided that City owns such
Corner Parcel after the Closing. In addition, for a period of twelve (12) months
following the Close of Escrow, Sam's shall have the right and license to enter
onto that certain real property located to the south of the Property in the location
depicted on Exhibit "A-1" ("Southerly Parcel") in order to import such excess
dirt as may be necessary in connection with Sam's grading of the Property;
provided, however, that in no event shall Sam's remove more than 25,000
cubic yards from the Southerly Parcel.
In connection with any entry permitted hereunder, Sam's shall (i) conduct all
such work in a diligent, expeditious and safe manner and not allow any
dangerous or hazardous conditions to occur on the property; (ii) comply with all
applicable laws and governmental regulations; (iii) maintain or assure
maintenance of workers' compensation insurance (or state approved self-
insurance) on all persons entering any such property in the amounts required by
the State of California; (iv) provide to Seller, prior to initial entry, a certificate
of insurance evidencing that Sam's and/or the persons entering any such
property have procured and have in effect an all-risk public liability insurance
policy meeting the following requirements: (1) the insurance shall be written on
a per occurrence and not claims -made basis; (2) the amount of insurance shall
be a combined single limit of not less than Two Million Dollars ($2,000,000.00)
with a deductible or self -insured retention amount of not more than One
Hundred Thousand Dollars ($100,000); (3) the policy shall name or be endorsed
to Seller and the City and their respective officers, officials, members,
employees, agents, and representatives (collectively, "Seller/City & Seller/City
Personnel") as additional insureds; (4) the insurance shall not contain any
special limitations on the scope of protection afforded to Seller/City &
Seller/City Personnel; (5) the policy shall not be canceled by the insurer or
Sam's unless there is a minimum of thirty (30) days prior written notice to
Seller; (6) the insurer shall waive subrogation rights against the Seller/City &
Seller/City Personnel; and (7) the insurance shall be primary insurance and not
contributory with any insurance any of the Seller/City & Seller/City Personnel
may have; and (8) the insurance shall apply separately to each insured against
whom a claim is made or suit is brought, except with respect to the limits of the
insurer's liability; (vi) indemnify Seller pursuant to the provisions of Section 11
contained herein; (vii) prior to entering onto the Southerly Parcel, Sam's shall
first obtain the Seller's approval of a Borrow Plan, which approval shall not be
unreasonably withheld or delayed ("Borrow Plan"), (viii) Sam's shall pay City
the sum of Two and No/ 100 Dollars ($2.00) for each cubic yard of dirt removed
from the Southerly Parcel pursuant to this Section 14. G, (ix) prior to performing
any grading on the Corner Parcel, Sam's shall obtain a grading permit from
City, and (x) Sam's will not be permitted to export any dirt from the Corner
Parcel.
10
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc
�vG'
The Borrow Plan shall show where soil is being removed from, a method and
deadline for payment of the $2.00 per cubic yard required by subsection (viii)
above, that neither Seller nor City will be responsible for any fines that may be
levied by AQMD that are associated with any export of dirt, Sam's plan to
provide for soil stablization and dust control, oversight of the export by City of
La Quinta ("City"), a method for confirming the quantity of dirt removed, that
dirt will be taken "as is, where is, with all faults", that Sam's will be
responsible for any fines that may be levied by AQMD that are associated with
the export, that Sam's will be responsible for all traffic control and signage as
rqeuired by the City, and that neither the Seller nor the City will be responsible
for Sam's compliance with applicable laws pertaining to traffic or the transport.
H. "As -Is" / Release. Sam's acknowledges that during the "Due Diligence
Period" (as defined in Section 5) Sam's shall have had an adequate opportunity
to inspect the Property and to investigate its physical characteristics and
condition and to conduct such other independent investigations as Sam's
requires to determine that it is prepared to complete the purchase of the Property
on the terms and conditions stated herein.
Subject to the limited representations and warranties of Seller set forth in this
Agreement, Sam's acknowledges that the purchase of the Property will be
based on Sam's own investigation and that Sam's must perform its own due
diligence with respect to all environmental matters relating to the Property, and
that Sam's is not relying on any environmental audits or assessments performed
by or on behalf of Seller.
Except as provided herein, and subject to the limited representations and
warranties of Seller set forth in this Agreement, Sam's acknowledges that
Sam's is purchasing the Property with no representation or warranty by Seller,
express or implied, regarding the presence of uncompacted fill, the condition of
the soil, the geology, seismology, hydrology, or similar matters on, under, or
affecting the Property, the existence or condition of any improvements in, on,
or under the Property, the presence or absence of any "Hazardous Materials"
(as defined in Section 26) in, on, under, or affecting the Property, or that the
Property is suitable for Sam's contemplated use. Sam's acknowledges that
Seller has undertaken no investigation, and does not intend to undertake any
investigation, concerning any aspect of the physical or environmental condition
of the Property and in no event shall Seller have any obligation under this
Agreement to cure or correct any physical defects or problems with respect to
the Property. Except for the warranties of Seller set forth in this Agreement,
Sam's is acquiring the Property in an "AS -IS, WHERE -IS, WITH ALL
FAULTS" condition. Sam's hereby agrees that, concurrent with the Close of
Escrow, Sam's shall release Seller from any claims that Sam's has against
Seller regarding the physical or environmental condition of the Property (except
for the express representations and warranties of Seller set forth herein, which
11
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc t `
shall survive the Closing); provided, however, such release shall not apply to
any matters arising out of, or related to, any fraud or intentional
misrepresentations or warranties made by Seller in this Agreement.
I. Option Agreement. Concurrent with the Close of Escrow, Sam's and Seller
shall record an Option Agreement substantially in the form attached hereto and
incorporated herein as Exhibit "G" (the "Option Agreement"), pursuant to
which Sam's shall grant to Seller the option to purchase the Property and the
"Adjacent Property" (as that term is defined below) if Sam's has not
completed construction (as evidenced by City's issuance of a final certificate of
occupancy) of a discount membership warehouse on the Property within the
time set forth therein.
J. Adjacent Property. It is acknowledged and agreed that Sam's operations will
require the Property, as well as the real property adjacent to the Property in the
general location depicted on Exhibit "A-1 ", attached hereto and incorporated
herein by reference (" Adjacent Property"). Accordingly, this Agreement and
Sams' obligations hereunder are expressly contingent upon Sams' acquisition
of the Adjacent Property.
K. Grant of Access Easement. Concurrently with the Closing hereunder, Sam's
shall grant to City a non-exclusive access easement, appurtenant to the Corner
Parcel, over that portion of the Property depicted on Exhibit "A-3", attached
hereto and incorporated herein by reference, in order to provide access to the
Corner Parcel, which grant of easement shall be in the form of Exhibit "I",
attached hereto and incorporated herein by reference.
15. Notices. All notices and other communications required or permitted to be
given hereunder shall be in writing and shall be given by (i) personal service; (ii) delivery by
reputable document delivery service such as Federal Express that provides a receipt showing
time and date of delivery, or (iii) by mailing in the United States mail, certified or registered
mail, postage prepaid, return receipt requested, addressed as follows:
If to Sam's:
Sam's Real Estate Business Trust
2001 SE 10`h Street
Bentonville, AR 72716-0550
Attn: Chris Danos
With a Copy to:
Gresham Savage, Nolan & Tilden
550 E. Hospitality Lane, Suite 300
San Bernardino, CA 92408
If to Seller:
Thomas P. Genovese, Executive Director
La Quinta Redevelopment Agency
P.O. Box 150478-495 Calle Tampico
La Quinta, CA 92253-1504
With a Copy to:
M. Katherine Jenson
Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
12
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc
Attn: J. Matthew Wilcox
Costa Mesa, CA 92626
P.O. Box 1950
Costa Mesa, CA 92628-1950
Notices shall be deemed effective upon receipt or rejection.
16. Closing. The Closing shall take place at a place and time mutually agreed upon
by the parties, within thirty (30) days following the date upon which all conditions and
contingencies set forth in Sections 4, 5, 13, 14A, 14C, 14D, 14E and 14J contained herein are
satisfied. At the Closing, Escrow Holder shall record the Grant Deed and the Option
Agreement.
17. Closing Costs. Notwithstanding anything to the contrary contained herein, or
in the escrow instructions, the Closing costs shall be paid as follows:
By Seller:
(a) Expenses of removing any monetary exceptions from title.
By Sam's:
(a) Cost of the ALTA Survey obtained by Sam's pu rsuant to Section 4;
(b) Title insurance premium for the Policy;
(c) Recording fees;
(d) All documentary, stamp and transfer taxes;
(e) Costs associated with the Natural Hazards Disclosure Report; and
(f) The escrow fee, if any.
18. Time of Essence; Acceptance. Time is expressly declared to be of the essence
of this Agreement.
19. Entire Agreement. This Agreement, together with the Option Agreement,
contains the entire agreement between Seller and Sam's, and there are no other terms,
conditions, promises, undertakings, statements or representations, express or implied,
concerning the sale contemplated by this Agreement.
20. Headings. The headings to the Sections hereof have been inserted for
convenience of reference only and shall in no way modify or restrict any provisions hereof or
be used to construe any such provisions.
21. Modifications. The terms of this Agreement may not be amended, waived or
terminated orally, but only by an instrument in writing signed by both Seller and Sam's.
22. Successors. This Agreement shall inure to the benefit of and bind the parties
hereto and their respective successors and assigns. Seller shall not assign this Agreement
13
W764\000\Doc\Redevelopment AgencyTurchase Agmnt 011.doc v
without Sam's consent, which consent may be withheld in Sam's sole discretion. Sam's
shall have the unrestricted right to assign this Agreement to any corporation, partnership,
limited liability company, company controlled by shares, business trust, or any party or entity
which, by virtue of direct or indirect ownership interests, controls, is controlled by, or is under
common control with Sam's, which assignment shall only be effective upon the delivery of a
fully executed assignment and assumption agreement in the form attached hereto as Exhibit
"F" , and incorporated herein by reference.
23. Non Foreign Affidavit / Withholding. Seller agrees to execute, at the Closing,
the Transferor Form attached hereto as Exhibit "H" and made a part hereof, in compliance
with Section 1445 of the Internal Revenue Code. It is understood that if there are multiple
Sellers, each Seller shall execute a Transferor Form at the Closing. In addition, Seller agrees
to comply with the real estate withholding requirements of the California Franchise Tax Board.
24. Effective Date. The Effective Date of this Agreement and the "Opening of
Escrow" shall be the last date on which all parties hereto have executed this Agreement.
25. Recording of Memorandum. The parties agree to execute, acknowledge and
record a memorandum of this Agreement, which Sam's covenants to release of record if:
(i) Agreement is terminated for any reason (other than Seller's default), or (ii) this Agreement
is terminated by Sam's, for any reason.
26. Additional Warranties by Seller.
(A) Seller hereby represents and warrants to Sam's that, to Seller's knowledge (as
"knowledge" is defined in Section 14. D), the Property is not contaminated with
any chemical, material or substance to which exposure is prohibited, limited or
regulated by any federal, state county, local or regional authority or which is
known to pose a hazard to health and safety and that the Property has never
been used for a landfill, dump site, or storage of hazardous substances. This
representation and warranty shall survive the Closing.
(B) As used in this Agreement the term "Hazardous Materials" means any
hazardous, toxic, infectious or explosive substance, material, gas or waste
which is or becomes regulated by any governmental authority, or the United
States Government, or any of their agencies, or which has been identified as a
toxic, cancer causing or otherwise hazardous substance. The term "Hazardous
Materials" includes, without limitation, any material or substance which is
(a) defined as a "hazardous waste", "extremely hazardous waste" or
"restricted hazardous waste" under the California Health and Safety Code,
Division 20, Chapter 6.5, as it may from time to time be amended (the
"Hazardous Waste Control Law"), (b) defined as a "hazardous substance"
under the California Health and Safety Code, Division 20, Chapter 6.8 as now
existing or hereinafter amended (the "Carp enter -Presley -Tanner Hazardous
Substance Account Act"), (c) defined as a "hazardous material", "hazardous
14
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc ��
substance", or "hazardous waste" under the California Health and Safety Code,
Division 20, Chapter 6.95 as presently existing or hereinafter amended (the
"Hazardous Materials Release Response Plans and Inventory"), (d) defined as a
"Hazardous Substance" under the California Health and Safety Code, Division
20, Chapter 6.7 as presently existing or hereinafter amended (the
"Underground Storage of Hazardous Substances Act"), (e) petroleum,
(f) polychlorinated biphenyls ("PCB"), (g) asbestos, (h) 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, as now
existing or hereinafter amended, (i) designated as a "hazardous substance"
pursuant to Section 307 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), as presently existing or hereinafter amended, 0) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act, 33
U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321), (k) defined as a
"hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
Section 6903), as presently existing or hereinafter amended or (1) defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section
9601 et seq. (42 U.S.C. Section 9601), as presently existing or hereinafter
amended.
27. Survival. All warranties, representations and covenants herein shall survive the
Closing.
28. Condition of Property. It is understood and agreed that Sam's, or its
representative, has made an inspection of the Property prior to the execution of this
Agreement, and based on that inspection and information which may have been provided by
the Seller as to the condition of the Property, has entered into this Agreement. Seller hereby
warrants and guarantees that the Property will remain in its present condition, as of the
execution of this Agreement to and including the day that title to said Property is transferred to
Sam's, subject to the re maining terms and conditions of this Agreement.
29. Dates of Performance. In the event that any date for performance by either
party of any obligation hereunder required to be performed by such party falls on a Saturday,
Sunday or nationally established holiday, the time for performance of such obligation shall be
deemed extended until the next business day following such date.
30. Attorneys' Fees. Notwithstanding anything to the contrary contained herein,
in any action or proceeding arising out of this Agreement, each party shall bear its own
attorneys' fees.
31. Prevailing Wage. Although the parties believe that California law does not
required the payment of prevailing wages or the hiring of apprentices for Sam's development
of the Property, Sam's agrees to be solely responsible for determining and effectuating
15
W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc a .
compliance with California Health and Safety Code Sections 22423 through 33426, or Chapter
1 of Part 7 of the California Labor Code (commencing with section 1720), and all applicable
statutory and regulatory provisions related thereto (collectively, the "Wage Laws"), and
nothing herein constitutes a representation or warranty by Seller that Sam's development of
the Property is not subject to the Wage Laws and Sam's expressly waives any right of
reimbursement for any "increased costs" or otherwise under California Labor Code Section
1781 with respect to the Property or Sam's development thereof. Sam's shall indemnify,
defend and hold Seller and the City and their respective officers, employees, members,
representatives, contractors and agents, harmless, including litigation costs and reasonable
attorneys' fees, with counsel reasonably acceptable to Seller and City, from and against any
and all claims pertaining to the compliance with the Wage Laws in connection with Sam's use
or development of the Property.
32. Counterparts. This Agreement may 'be executed in any number of
counterparts, each of which shall be deemed an original, but all of which, together, shall
constitute one and the same instrument.
33. Applicable Law / Forum 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 Seller shall be
made in the manner required by law for service on a public entity. Service of process on
Sam's shall be made in any manner permitted by law and shall be effective whether served
within or outside of California.
34. City as Third Party Beneficiary. The City is an express third party
beneficiary of this Agreement with the right, but not the obligation, to enforce its provisions.
35. City Not Obligated Hereunder. The City is not a party to the Agreement and
shall have no obligations hereunder.
36. Non -Liability of Seller Officials and Employees. Except as otherwise
provided by law, no officer, official, employee, agent, member, or representative of Seller
shall be personally liable to Sam's, or any successor in interest, in the event of any default or
breach by Seller, or for any amount which may become due to Sam's or its successor, or for
any breach of any obligations of Seller pursuant to this Agreement.
[SIGNATURES FOLLOW - NEXT PAGE]
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W764\000\Doc\Redevelopment Agency\Purchase Agmnt 01 Ldoc
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
SELLER:
ATTEST: LA QUINTA REDEVELOPMENT
AGENCY, A PUBLIC BODY,
CORPORATE AND POLITIC
BY:
JUNE GREEK, AGENCY SECRETARY THOMAS P. GENOVESE
ITS: EXECUTIVE DIRECTOR
DATE:
ATTEST:
ASSISTANT SECRETARY
(CORPORATE SEAL)
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. KATHERINE JENSON, AGENCY
COUNSEL
SAM' S :
SAM'S REAL ESTATE BUSINESS
TRUST, A DELAWARE STATUTORY
TRUST
BY:
ASST VICE PRESIDENT
OF REAL ESTATE
DATE:
/
W764\00MMORedevelopment Agency\Purchase Agmnt 01 Ldoc
[to be inserted]
Exhibit "A
THE PROPERTY
2
Exhibit "A" to Purchase Agreement
;.1
EXHIBIT "A-1"
DEPICTION OF CORNER PARCEL
[to be inserted]
Exhibit "A-1 " to Purchase Agreement':
`� J
EXHIBIT "A-2"
DEPICTION OF SOUTHERLY PARCEL
[to be inserted]
Exhibit "A-2" to Purchase Agreement
[to be inserted]
EXHIBIT "A-3"
GRANT OF EASEMENT
Exhibit "A-3" to Purchase Agreement
Exhibit "B"
LAST RECORDED VESTING DEED FOR THE PROPERTY
[to be inserted]
Exhibit "B" to Purchase Agreement
-f 18
M.
Exhibit "C"
Instructions to Professional Surveyors for the Performance of
Sam's Boundary Retracement and Topographic Surveys, (New,
Relocation, Expansion, Take -Over, etc) Dated February 5, 2001
Introduction:
It shall be understood by all Surveyors providing professional surveying services to
Wal * Mart Stores, Inc. that the resultant Boundary Retracement and Topographic Surveys
contemplated by these standards shall be utilized and relied upon by Wal*Mart Stores Inc. and
its various ownership entities for, but not limited to, the following purposes:
1. The evaluation of and ultimately to affect the acquisition of interests in real
property to support the operation of a commercial retail facility (i.e., Sam's
Club, Division One, Supercenter, Neighborhood Market, Distribution Center,
and their various respective prototypes).
2. To serve as the foundation for the conveyance by Wal * Mart of various interests
in real property.
3. To serve as the bases of the engineering design of said facilities and
appurtenances, and
4. To serve as a source of information for the management, operations, and
maintenance of said facilities.
The services required by these standards shall only be provided by qualified personnel
under the supervision of, or performed directly by, persons licensed to practice in the
jurisdiction wherein the project is located. All services shall reasonably conform to applicable
laws, codes, ordinances, and regulations of any governmental agency having jurisdiction over
the project at the time services are rendered.
In contrast to the 1999 ALTA/ACSM Standards regarding "Record Documents" the
Surveyor is hereby advised that Wal*Mart will only provide for the Surveyor's use a current
title commitment (with documents supporting relevant Schedule B2 items), and/or for
expansion projects, an Ownership and Encumbrance Report and copies of the current deed of
record for the subject premises and its adjoiners. The Surveyor is advised, however, that the
title commitment or Ownership and Encumbrance Report may not be available prior to
commencement of the survey nor, in some cases, prior to initial completion of the survey. In
such cases, the surveyor shall deliver a pro -forma version of the plat of survey indicating that
fact. When the title commitment or Ownership and Encumbrance Report and associated
documents are subsequently provided, the Surveyor shall update the plat of survey to reflect
Exhibit "C" to Purchase Agreement - Page 2
easements and other appropriate matters of record reflected therein and deliver such update
within 15 days of the receipt of the title commitment. The effective date, commitment or
Ownership and Encumbrance Report number, and issuing Title Company shall be identified on
the face of the survey.
If, in the course of performing the survey, the Surveyor recognizes the need for records
research or additional record documents not already provided, a request to the Sam's
Engineering Manager shall be made for such information. If it is determined that the required
information will not be forthcoming in a timely manner, the Surveyor shall be responsible to
perform the necessary research and obtain copies himself, or to otherwise obtain the required
information in order that the survey may be completed by the required date.
If after a complete evaluation and investigation, the Surveyor feels any of the resulting
boundary corners and lines have, in his or her opinion, an unacceptable amount of uncertainty
in position, this situation shall be clearly reported to the Sam's Engineering Manager prior to
completion of the survey.
The Surveyor shall maintain a record of all sources of information utilized in the
performance of the survey.
As a minimum, the surveys and accompanying plats or maps shall be made in
accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys and shall include items 1-6, 7a, 8, 10, 11b, 13, 15 and 17 of Table A as further
qualified and amplified below, and shall be in accordance with the then -current "Accuracy
Standards for Land Title Surveys" as adopted by the American Congress on Surveying and
Mapping, the National Society of Professional Surveyors, and the American Land Title
Association. Should local standards be more stringent than the standards contained herein,
then said local standards shall prevail.
Table A - Optional Survey Responsibilities and Specifications
Item 1
The Surveyor shall monument all corners of the property (for which there does not
already exist a reliably permanent monument or witness in agreement) . The size, length,
weight and identification of monuments set shall be in accordance with any State/local-specific
standards; however, at a minimum the monuments placed shall not be less than a 3/ inch
diameter iron pin, 24 inches in length with a cap identifying the Surveyor/Firm and set in
concrete.
Disturbance to the monument site shall be kept to a minimum and any disturbed areas
shall be returned to a condition similar or equal to that existing prior to the disturbance. The
Survey shall list a notation as to the date(s) the monuments were set and establish a chain of
privity between any existing monuments which are replaced.
Exhibit "C" to Purchase Agreement - Page 3 36
Item 2
Vicinity map showing the property surveyed in reference to nearby highway(s) or major
street intersection(s) .
Item 3
Flood zone designation (with proper annotation based on Federal (FEMA, FIRM)
Flood Insurance Rate Maps or the state or local equivalent, by scaled map location and graphic
plotting only . )
Item 4
Land area in square feet rounded to the nearest whole foot and acres rounded to the
nearest 2 decimal places.
Item 5
• The vertical datum of the survey shall be identified, with preference given to
National Geodetic Vertical Datum (NGVD) 1929.
• The originating benchmarks (2) shall be identified and at least two (2)
benchmarks placed upon the site.
• The topographic survey shall include elevations at an appropriate density for the
final map scale of the survey (see National Map Accuracy Standards) with
overlap onto adjoiners of one hundred (100) feet (assuming a Right of Entry can
be obtained), including the location of any substantial, visible improvements in
the overlap areas.
• Any trees with a diameter at breast height (DBH) of 24 inches or greater located
on the subject property or within 50' of the outside of the boundary, shall be
identified and shown as a separate overlay sheet to the plat of survey and on a
separate layer in the digital file, and all tree locations shall conform to the
requirements of any local codes and/or ordinances.
• Elevations shall be obtained at a minimum on 50 foot intervals at the centerline,
top of curb, gutter, edge of pavement, edge of shoulder and flow line of any
appurtenant drainage feature along both sides of all adjoining roads, streets and
highways.
• For all adjoining streets, roads and highways, the type of pavement, width and
condition of driving surface, curbs, shoulders and sidewalks, painted and raised
pavement markings, and speed limits shall be indicated. The location and
dimensions of existing through lanes/medians shall also be shown.
Exhibit "C" to Purchase Agreement - Page 4
• Contour lines at a one -foot interval shall be shown as solid lines and in
accordance with National Map Accuracy Standards. Contour lines shall extend
throughout the one hundred (100) foot overlap area discussed above.
Item 6
Identify, and show if possible, setback, height and floor space area restrictions of
record or disclosed by applicable zoning or building codes (in addition to those recorded in
subdivision plats). Landscape buffers affecting the property shall be identified. If none, so
state.
Item 7a
Exterior dimensions of all existing structures at ground level.
Item 8
Substantial, visible improvements (in addition to buildings) such as signs, billboards,
fences, parking areas or structures, swimming pools, etc. Also, any footpaths or other visible
indices of use by other parties.
Item 10
Indication of access to a public right-of-way such as curb cuts and driveways.
Item 11 b
Location of all utilities existing on or serving the surveyed property as determined by
observed evidence together with plans and markings provided by client, utility companies, and
other appropriate sources (with reference as to the source of information) .
When not otherwise observable, the Surveyor shall request (and report on the plat of
survey) information as to depth of cover, type and size and condition of above ground and
underground utilities from the appropriate sources of such information.
Type, condition and size of pipes, invert elevations, top of casting elevations and flow
direction shall be obtained and reported on sanitary and storm sewers on the surveyed property
or which appear to, or are known to, affect the subject property.
Where storm sewer, sanitary sewer, electric, water, telephone, gas or cable TV service
is not located on the surveyed property or is not otherwise located in adjoining public rights of
way or recorded easements, the Surveyor shall report this fact to the Wal * Mart Engineering
Manager to determine an appropriate course of action.
Exhibit "C" to Purchase Agreement - Page 5:
The names, addresses and telephones numbers of the appropriate officials for all
associated utility companies and local government agencies, including the appropriate highway
department(s) shall be provided.
lands.
Item 13
Names and recording information of adjoining owners of both platted and unplatted
Item 15
Any changes in street right of way lines either completed or currently proposed, and
available from the controlling jurisdiction. Observable evidence of recent street or sidewalk
construction or repairs.
Item 17 Additional Requirements
• With respect to found monumentation discovered during the course of the
survey, the plat or map of survey shall disclose the type of monument material,
its size, condition, and the Surveyor's opinion as to its relevant spatial p osition.
• If the surveyed property is comprised of multiple parcels, the record description
of each parcel together with a description of the overall parcel and a statement
that the overall parcel description is equivalent to the sum of the multiple parcels
shall be shown on the face of the survey.
• The legal description of the survey must match the legal description of the Title
Commitment and the vesting deed upon which the survey is based.
• If the survey is comprised of multiple parcels, it shall be stated on the survey
that the parcels are contiguous with no hiatuses or overlaps.
• The Surveyor shall graphically depict and give the recording information for any
easements identified in the title commitment or Ownership and Encumbrance
Report of which the Surveyor has knowledge, even if it does not appear in the
title commitment or Ownership and Encumbrance Report. If the title
commitment is not available at the time of initial completion of the plat of
survey, the Surveyor shall deliver the plat of survey pro forma and so noted.
When the title commitment or Ownership and Encumbrance Report has been
made available, the Surveyor shall update the plat of survey to show the
easements and other appropriate matters of record, with their associated
recording information identified therein and deliver such update within 15 days
of receipt of the title commitment or Ownership and Encumbrance Report. The
effective date, commitment number and issuing Title Company of the title
commitment or Ownership and Encumbrance Report shall be identified on the
Exhibit "C" to Purchase Agreement - Page 6 3 ill
i.;3
face of the plat of survey. In addition to the standard ALTA/ACSM
certification, the survey must contain a certification to the Title Company, the
Title Underwriter, and Wal * Mart.
• The survey shall be drawn on 24" by 36" or 30" by 42" (or other plan size
designated by the local governmental jurisdiction or Civil Engineering Manager)
reproducible tracing material at a horizontal scale of 1 " = 30' , 1 " = 40' , 1 " = 50' ,
or 1 " = 60' . The Surveyor shall also provide a . dwg or . dxf digital copy of the
plat of survey on a 3.5" diskette, or compact disc (CD).
• The survey shall state the horizontal datum of the survey, with preference given
to the respective State Plane Coordinate System (NAD 83) and the bearing basis
of the survey, with preference given to State Plane Coordinate System, grid
north.
• Upon award of the contract, the Surveyor will coordinate with the Civil
Engineering Consultant's Project Manager as to the proper scale, orientation,
and sheet size of the final survey drawings.
And for expansions, the additional following requirements shall apply:
record.
Delineate extent of pavement deterioration as defined ,by the engineer of
Show location and actual lengths of sides of buildings, sidewalks, truck
dock and/or truck well, porches, garden center, trash and bale storage
areas, etc.
Show location and dimensions of the parking lot and dimensions to
adjacent property lines.
Include the layout of the lot striping, sidewalks, curbing, landscape
islands, medians, entrances, and total number of parking spaces provided
for the shopping center and Sam's par cel.
Show location of all existing parking lot lighting, indicate the orientation
and number of heads per pole, and note the presence of any floodlights
for all poles located within survey limits. Show the location of the pylon
sign if within the survey limits.
Obtain finished floor elevations at truck dock(s), at grade delivery
door(s), vestibule(s), garden center, and TLE.
Locate downspouts, and fire department connections(s).
Exhibit "C" to Purchase Agreement - Page 7 a,
Some other things that could be relevant and needed would include, but
would not be limited to, the following:
1. Exterior ground accent lighting;
2. Irrigation systems;
3. Door locations and types;
4. Types of existing curbing;
5. Existing landscaping including sizes and types (when
determinable at least) of trees, shrubs and other plantings;
6. Existing pylon and building sign size / square footage
including shopping center pylon signage (we may want to
grandfather larger existing signage);
7. Verification of inverts and pipe types on drainage
structures to include notifying W/M in the event structures
are full of sediment or otherwise impaired;
8. Provide the legal description of the demised premises;
9. Obtain light pole data on the rest of the shopping center
(the real estate manager usually gets the center owner to
replace lights in the rest of the center);
10. Light pole data should include existing pole height;
11. Verify the town requirements for submittal packages as to
whether they will require a survey of the entire shopping
center or just the demised premises;
12. Provide overall shopping center map depicting truck
traffic routing and curb radii;
13. Provide adequate elevation information along the building
faces and curbline such that pavement overlay, pavement
shim calculations, customer access, etc., can be designed;
14. Provide complete information regarding storm water
detention outlet control devices (orifice
diameter/elevation, weir width/shape/elevation, riser
geometry, etc.) such that hydraulic characteristics can be
determined.
Exhibit "C" to Purchase Agreement - Page 8 a _ c t
.a J
• Where a drawing requires a match line, the CADD file shall be broken out in
"Views" in paper space for plotting purposes. If this format is not possible, a
"base file" for civil use, will be required in its entirety, as well as drawings
broken out for plotting. Softdesk spot points are preferred but where this is not
possible, ACAD nodes with a " Z" factor that can be converted to Softdesk
points will be required.
• When the site plan indicates that the development will include outlots separate
from the primary development, and when any new easements will cross such
outlots, the Surveyor shall describe such easements with separate descriptions
for each distinctive part of the development or ownership entity involved and
traversed by each easement. Typically the surveryor has no way to know where
proposed easements will be needed or how many will be required at the time the
topographic survey is performed. For this reason, this item will typically be
handled through an amendment to the Contract and not be included in the
original proposal for services.
Exhibit "C" to Purchase Agreement - Page 9
iv�
MINIMUM STANDARD DETAIL REQUIREMENTS FOR
ALTA/AC SM LAND TITLE SURVEYS
as adopted by
American Land Title Association
American Congress on Surveying & Mapping
and
National Society of Professional Surveyors
It is recognized that members of the American Land Title Association (ALTA) have
specific needs, peculiar to title insurance matters, which require particular information for
acceptance by title Insurance companies when said companies are asked to insure title to land
without exceptions as to the many matters which might be discoverable from survey and
inspection and not be evidenced by the public records. In the general interest of the public, the
surveying profession, title insurers and abstracters, ALTA, the American Congress on
Surveying and Mapping (AGSM) and the National Society of Professional Surveyors, Inc.
(NSPS) jointly promulgate and set forth such details and criteria for standards. It is understood
that local variations may require local adjustments to suit local situations, and often must be
applied. It is recognized that title insurance companies are entitled to rely upon the survey
furnished to them being of the appropriate professional quality, both as to completeness and as
to accuracy. It is equally recognized that for the performance of a survey, the surveyor will be
provided with appropriate data which can be relied upon in the preparation of the survey.
For a survey of real property and the plat or map of the survey to be acceptable to a
title insurance company for purposes of insuring title to said real property free and clear of
survey matters (except those matters disclosed by the survey and indicated on the plat or map),
certain specific and pertinent information shall be presented for the distinct and clear
understanding between the client (insured), the title insurance company (insurer), and the
surveyor (the person professionally responsible for the survey). These requirements are:
1. The client shall request the survey or arrange for the survey to be requested and
shall provide a written authorization to proceed with the survey from the person responsible for
paying for the survey. Unless specifically authorized in writing by the insurer, the insurer
shall not be responsible for any costs associated with the preparation of the survey. The
request shall specify that an ' ALTA/ACSM LAND TITLE SURVEY' is required, meeting the
then -current accuracy standards jointly adopted by ALTA, ACSM and NSPS. The request
shall also designate which of the optional Items listed in Table A are to be incorporated. The
request shall set forth the record description of the property. Complete copies of the record
description of the property, any record easements benefiting the property, the record easements
or servitudes and covenants affecting the property ("Record Documents"), documents of
record referred to in the Record Documents, and any other documents containing desired
Exhibit "C" to Purchase Agreement - Page 10 ••■}
appropriate information affecting the property being surveyed and to which the survey shall
make reference shall be provided to the surveyor for notation on the plat or map of survey.
2. The plat or map of such survey shall bear the name, address, telephone number, and
signature of the professional land surveyor who made the survey, his or her official seal and
registration number, the date the survey was completed and the dates of all revisions, and the
caption ' ALTA/ACSM Land Title Survey' with the certification set forth in paragraph 8.
3. An "ALTA/ACSM LAND TITLE SURVEY" shall be in accordance with the then -
current 'Accuracy Standards for Land Title Surveys" (Accuracy Standards) as adopted, from
time to time, by the American Congress on Surveying and Mapping, the National Society of
Professional Surveyors, and the American Land Title Association and Incorporated herein by
reference.
4. On the plat or map of an ' ALTA/ACSM LAND TITLE SURVEY,' the survey
boundary shall be drawn to a convenient scale, with that scale clearly indicated. A graphic
scale, shown in feet or meters or both, shall be Included. A north arrow shall be shown and
when practicable, the plat or map of survey shall be oriented so that north is at the top of the
drawing. Symbols or abbreviations used shall be identified on the face of the plat or map by
use of a legend or other means. If necessary for clarity, supplementary or exaggerated
diagrams shall be presented accurately on the plat or map. The plat or map shall be a
minimum size of 81/2 byII inches.
5. The survey shall be performed on the ground and the plat or map of an
'ALTA/ACSM LAND TITLE SURVEY" shall contain, in addition to the required Items
already specified above, the following applicable information:
(a) All data necessary to indicate the mathematical dimensions and relationships of
the boundary represented, with angles given directly or by bearings, and with
the length and radius of each curve, together with elements necessary to
mathematically define each curve. The point of beginning of the surveyors
description shall be shown as well as the remote point of beginning if different.
A bearing base shall refer to some well -fixed bearing line, so that the bearings
may be easily re-established. All bearings around the boundary shall read in a
clockwise direction wherever possible. The North arrow shall be referenced to
its bearing base and should that bearing base differ from record title, that
difference shall be noted.
(b) When record bearings or angles or distances differ from measured bearings,
angles or distances, both the record and measured bearings, angles, and
distances shall be clearly indicated. If the record description fails to form a
mathematically closed figure, the surveyor shall so indicate.
(c) Measured and record distances from corners of parcels surveyed to the nearest
right-of-way lines of streets in urban or suburban areas, together with recovered
lot corners and evidence of lot corners, shall be noted. The distances to the
Exhibit " C " to Purchase Agreement - Page 11 10
nearest intersecting street shall be indicated and verified. Names and widths of
streets and highways abutting the property surveyed and widths of rights of way
shall be given. Any use contrary to the above shall be noted. Observable
evidence of access (or lack thereof to such abutting streets or highways shall be
indicated. Observable evidence of private roads shall be so indicated. Streets
abutting the premises, which have been described in Record Documents, but not
physically opened, shall be shown and so noted.
(d) The identifying titles of all recorded plats, filed maps, right of way maps, or
similar documents which the survey represents, wholly or in part. shall be
shown with their appropriate recording data, filing dates and map numbers, and
the lot, block, and section numbers or letters of the surveyed premises. For
non -platted adjoining land, names, and recording data identifying adjoining
owners as they appear of record shall be shown. For platted adjoining land, the
recording data of the subdivision plat shall be shown. The survey shall indicate
platted setback or building restriction lines which have been recorded in
subdivision plats or which appear in a Record Document which has been
delivered to the surveyor. Contiguity, gores, and overlaps along the exterior
boundaries of the surveyed premises, where ascertainable from field evidence or
Record Documents, or interior to those exterior boundaries, shall be clearly
indicated or noted. Where only a part of a recorded lot or parcel is included in
the survey, the balance of the lot or parcel shall be indicated.
(e) All evidence of monuments shall be shown and noted to Indicate which were
found and which were placed. All evidence of monuments found beyond the
surveyed premises on which establishment of the corners of the surveyed
premises are dependent, and their application related to the survey shall be
indicated.
(f) The character of any and all evidence of possession shall be stated and the
location of such evidence carefully given in relation to both the measured
boundary lines and those established by the record. An absence of notation on
the survey shall be presumptive of no observable evidence of possession.
(g) The location of all buildings upon the plot or parcel shall be shown and their
locations defined by measurements perpendicular to the boundaries. If there are
no buildings erected on the property being surveyed, the plat or map shall bear
the statement, 'No buildings.' Proper street numbers shall be shown where
available.
(h) All easements evidenced by a Record Document which have been delivered to
the surveyor shall be shown, both those burdening and those benefiting the
property surveyed, indicating recording information. If such an easement
cannot be located, a note to this effect shall be included. Observable evidence
of easements and/or servitudes of all Iands, such as those created by roads;
Exhibit "C" to Purchase Agreement - Page 12
rights -of -way; water courses; drains; telephone, telegraph, or electric lines;
water, sewer, oil or gas pipelines on or across the surveyed property and on
adjoining properties if they appear to affect the surveyed property, shall be
located and noted. If the surveyor has knowledge of any such easements and/or
servitudes, not observable at the time the present survey is made, such lack of
observable evidence shall be noted. Surface indications, if any, of underground
easements and/or servitudes shall also be shown.
(i) The character and location of all walls, buildings, fences, and other visible
improvements within five feet of each side of the boundary lines shall be noted.
Without expressing a legal opinion, physical evidence of all encroaching
structural appurtenances and projections, such as fire escapes, bay windows,
windows and doors that open out, flue pipes, stoops, eaves, cornices, areaways,
steps, trim, etc., by or on adjoining property or on abutting streets, on any
easement or over setback lines shown by Record Documents shall be indicated
with the extent of such encroachment or projection. If the client vashes to have
additional information with regard to appurtenances such as whether or not such
appurtenances are independent, division, or party walls and are plumb, the
client will assume the responsibility of obtaining such permissions as are
necessary for the surveyor to enter upon the properties to make such
determinations.
(j) Driveways and alleys on or crossing the property must be shown. Where there
is evidence of use by other than the occupants of the property, the surveyor
must so indicate on the plat or map. Where driveways or alleys on adjoining
properties encroach, in whole or in part, on the property being surveyed, the
surveyor must so indicate on the plat or map with appropriate measurements.
(k) As accurately as the evidence permits, the location of cemeteries and burial
grounds (I) disclosed in the process of researching title to the premises or (II)
observed in the process of performing the field work for the survey, shall be
shown.
(1) Ponds, lakes, springs, or rivers bordering on or running through the premises
being surveyed shall be shown.
6. As a minimum requirement, the surveyor shall furnish two sets of prints of the plat
or map of survey to the title insurance company or the client. If the plat or map of survey
consists of more than one sheet, the sheets shall be numbered, the total number of sheets
indicated and match lines shall be shown on each sheet. The prints shall be on durable and
dimensionally stable material of a quality standard acceptable to the title insurance company.
At least two copies of the boundary description prepared from the survey shall be similarly
furnished by the surveyor and shall be on the face of the plat or map of survey, if practicable,
or otherwise attached to and incorporated in the plat or map. Reference to date of the
'ALTA/ACSM LAND TITLE SURVEY,' surveyor's file number (if any), political
Exhibit "C" to Purchase Agreement - Page 13
subdivision, section, township and range, along with appropriate aliquot parts thereof, and
similar information shown on the plat or map of survey shall be Included with the boundary
description.
7. Water boundaries necessarily are subject to change due to erosion or accretion by
tidal action or the flow of rivers and streams. A realignment of water bodies may also occur
due to many reasons such as deliberate cutting and filling of bordering lands or by avulsion.
Recorded surveys of natural water boundaries are not relied upon by title insurers for location
of title. When a property to be surveyed for title Insurance purposes contains a natural water
boundary, the surveyor shall measure the location of the boundary according to appropriate
surveying methods and note on the plat or map the date of the measurement and the caveat that
the boundary is subject to change due to natural causes and that it may or may not represent
the actual location of the limit of title. When the surveyor is aware of changes in such
boundaries, the extent of those changes shall be identified.
8. When the surveyor has met all of the minimum standard detail requirements for an
ALTA/ACSM Land Title Survey, the following certification shall be made on the plat:
To (name of client), (name of lender, if known), (name of title
insurance company, if known), (name of others as instructed by
client) :
This is to certify that this map or plat and the survey on which it
Is based were made in accordance with 'Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys' jointly
established and adopted by ALTA, ACSM and NSPS in 1999, and
includes Items 1-6, 7a, 8, 10, 11 b, 13, 15 and 17 of . Table A
thereof. Pursuant to the Accuracy Standards as adopted by ALTA,
NSPS, and ACSM and in effect on the date of this certification,
undersigned further certifies that [Surveyor to complete certificate
with the appropriate ONE of the following three phrases]
• the Positional Uncertainties resulting from the survey measurements
made on the survey do not exceed the allowable Positional
Tolerance.
• the survey measurements were made in accordance with the
"Minimum Angle, Distance, and Closure Requirements for Survey
Measurements Which Control. Land Boundaries for ALTA/ACSM
Land Title Surveys. "
• proper field procedures, instrumentation, and adequate survey
personnel were employed in order to achieve results comparable to
those outlined in the "Minimum Angle, Distance, and Closure
Requirements for Survey Measurements Which Control Land
Boundaries for ALTA/ACSM Land Title Surveys. "
Exhibit "C" to Purchase Agreement - Page 14 , r"
Date:
(seal)
Registration No.
(signed)
Adopted by American Land ride Association on October 6, 1999.
Adopted by Board of Directors, American Congress on Surveying and Mapping on October
20, 1999.
Adopted by . Board of Directors, National Society of Professional Surveyors on October 19,
1999.
American Land Title Association, 1828 L St., N. W, Suite 705, Washington, D.C. 20036.
American Congress on Surveying and Mapping, 5410 Grosvenor Lane, Bethesda, MD 20814
National Society of Professional Surveyors, 5410 Grosvenor Lane. Bethesda. MD 20814
(ALTA99)
Exhibit "C" to Purchase Agreement - Page 15 10,:'`
TABLE A
OPTIONAL SURVEY RESPONSIBILITIES AND
SPECIFICATIONS
NOTE., The items of Table A must be negotiated between the surveyor and client. It
may be necessary for the surveyor to qualify or expand upon the description of these items
e.g., in reference to Item 6, there may be a need for an Interpretation of a restriction. The
surveyor cannot make a certification on the basis of an Interpretation.
If checked, the following optional items are to be Included In the ALTA/ACSM LAND
TITLE SURVEY.
1. Monuments placed (or a reference monument or witness to the corner) at all
major corners of the boundary of the property, unless already marked or
referenced by an existing monument or witness to the corner.
2. Vicinity map showing the property surveyed in reference to nearby highway(s) or
major street intersection(s).
3. Flood zone designation (with proper annotation based on Federal Flood Insurance
Rate Maps or the state or local equivalent, by scaled map location and graphic
plotting only . )
4. Land area as specified by the client.
5. Contours and the datum of the elevations.
6. Identify and show if possible, setback, height, and floor space area restrictions of
record or disclosed by applicable zoning or building codes (in addition to those
recorded in subdivision maps). If none, so state.
7. (a) Exterior dimensions of all buildings at ground level
(b) Square footage of:
1) exterior footprint of all buildings at ground level
2) gross floor area of all buildings
3) other areas to be defined by the client
(c) Measured height of all buildings above grade at a defined location. If no
defined location is provided, the point of measurement shall be shown.
8. Substantial, visible improvements (in addition to buildings) such as signs, parking
areas or structures, swimming pools, etc.
9. Parking areas and, if striped, the striping and the type (e.g. handicapped,
Exhibit "C" to Purchase Agreement - Page 16
�u3
motorcycle, regular, etc.) and number of parking spaces.
10. Indication of access to a public way such as curb cuts and driveways.
11. Location of utilities (representative examples of which are shown below) existing
on or serving the surveyed property as determined by:
(a) Observed evidence
(b) Observed evidence together with plans and markings provided by client,
utility companies, and other appropriate sources (with reference as to the
source of information)
• railroad tracks and sidings;
• manholes, catch basins, valve vaults or other surface indications of
subterranean uses;
• wires and cables (including their function) crossing the surveyed premises, all
poles on or within ten feet of the surveyed premises, and the dimensions of all
crosswires or overhangs affecting the surveyed premises, and
• utility company installations on the surveyed premises.
12. Governmental Agency survey -related requirements as specified by the client.
13. Names of adjoining owners of platted lands.
14. Observable evidence of earth moving work, building construction or building
additions within recent months.
15. Any changes in street right of way lines either completed or proposed, and
available from the controlling jurisdiction. Observable evidence of recent street or
sidewalk construction or repairs.
16. Observable evidence of site use as a solid waste dump, sump or sanitary landfill.
17.
Exhibit "C" to Purchase Agreement - Page 17
Exhibit I'D"
REAL PROPERTY TAX GUIDELINES
FOR WAL-MART BUILT STORES
WAL-MART REAL ESTATE BUSINESS TRUST
2001 SE LOTH STREET
BENTONVILLE, AR 72716-0550
The following items are to be completed by the Closing Agent - Seller
IMMEDIATELY after the closing date for the property located at:
(Address)
1. File the deed with the County Clerk and the Tax Assessor.
2. Notify the tax assessor of the change of ownership of the property and file a
plat, if the jurisdiction requires, or file a certified survey with the assessor that outlines and
describes Sam's parcel. The Real Estate Manager will provide you with a plat if the
jurisdiction requires a plat for taxing purposes. Additionally, indicate the tax identification
number, if available, for Sam's parcel. If the tax identification number is not available at this
time, then specify a future date when it will be available.
Tax I.D.#:
Future date:
3. Notify the tax assessor that the tax statements are to be sent to:
Wal-Mart Stores, Inc.
Property Tax Department - 8013
Mail Stop No.: 0550
1301 S.E. 10'' Street - (Store No. )
Bentonville, AR 72716-0550
Note: Make sure that our deed reflects this same address and accounting format.
4. Is this property located within the city limits? Yes: ; No:
If no, will this property be annexed into the city limits prior to the opening for
business of the building to be constructed on the property? Yes: ; No:
Exhibit " D " to Purchase Agreem ent i
iUJ
5. Obtain details of any special assessments that may encumber the property and
record below, including assessment start and assessment end dates, yearly assessments, and
total special assessments due.
6. Please provide the following information on the taxing authorities which may
tax Sam's p arcel.
COUNTY:
CITY:
SCHOOL
DISTRICT:
OTHER:
Name:
Address:
Phone #:
Tax Yr.
Begins:
Tax Yr.
Ends:
Tax Billing
Date (s):
Tax Delin-
quency Date:
7. Execute this document and return it to the Real Estate Manager upon completion
of items # 1 - 6.
Thank you for your cooperation in this matter.
By signing below, you are indicating that you have accurately and completely fulfilled
the above requests.
DATE:
BY:
(CLOSING AGENT - SELLER)
ADDRESS:
PHONE #:
Exhibit " D " to Purchase Agreem ent
iJ0
Exhibit "E"
OPTION AGREEMENT
Exhibit "E" to Purchase Agreement
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
SUBORDINATED
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 ,
(the "Effective Date"), by SAM'S REAL ESTATE BUSINESS TRUST, a Delaware
statutory trust ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public
body, corporate and politic ("Agency").
RECITALS
A. Developer is the fee owner of that certain real property located in the City of La
Quinta, County of Riverside, State of California described in Exhibit "A", which is attached
hereto and incorporated herein (the "Site").
B. Developer acquired a portion of the Site (the "Agency Portion Of The Site") from
the La Quinta Redevelopment Agency ("Agency"), pursuant to that certain Purchase Agreement
(the "Agency Purchase Agreement") entered into between Developer and Agency on
, 2005. Developer acquired the remainder of the Site (i.e., the Site less the
Agency Portion Of The Site) from Stamko Development Co., a California limited partnership
("Stamko"), pursuant to that certain Purchase Agreement entered into between Developer and
Stamko on )2005.
C. Developer intends to merge the separate parcels comprising the Site into one (1)
or two (2) legal parcels and to construct thereon a discount membership warehouse.
D. As a condition to the Agency's conveyance of the Site to Developer, Developer
was required to grant to Agency an option to purchase the Site from Developer, if Developer
fails to construct thereon a discount membership warehouse within a specified time frame.
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
Exhibit "E" to Purchase Agreement - Page 1
conditions contained in the Purchase Agreement, Developer hereby grants to Agency the
following purchase option:
1. Purchase Option - Failure to Complete Construction
Developer hereby grants to Agency an exclusive option to purchase the Site ("Purchase
Option") if, subject to Sections 2(d) and 2(e) below, Developer fails to complete construction of
a discount membership warehouse on the Site (for purposes of this Option Agreement,
"completion of construction" shall be defined as the issuance by the City of La Quinta ("City")
to Developer of a Certificate of Occupancy) on, or before, the date that is Two and One -Half
(2.5) years from the Effective Date of this Option Agreement (the "Completion Deadline"). In
the event of Developer's failure to complete construction of a discount membership warehouse
on the Site by the Completion Deadline, Agency shall be entitled to exercise, but is not obligated
to exercise, the foregoing option in accordance with the provisions set forth herein.
(a) Agency's Request for Costs
Subject to Sections 2(d) and 2(e) below, within sixty (60) days after the Completion
Deadline, Agency may, but is not obligated to, request that Developer provide to Agency a list of
the "Developer's Construction Costs" (as that term is defined below) ("Agency's Request for
Costs"). For purposes of this Option Agreement, the term "Developer's Construction Costs"
shall mean, with respect to development of the discount membership warehouse, the construction
costs actually incurred by Developer for development of the discount membership warehouse
from the Effective Date hereof to the date Agency exercises this Purchase Option (the
"Construction Period"), which costs may include (i) a reasonable 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) reasonable costs and fees incurred by Developer, if any, to
obtain financing for the construction of the works of improvement. Developer shall provide to
Agency a list of the Developer's Construction Costs, along with supporting documentation
evidencing that such costs were actually incurred and paid (or are in the process of being paid),
within sixty (60) days after Developer's receipt of Agency's Requests for Costs. In the event
Agency disputes any of the items set forth in Developer's list of the Developer's Construction
Costs, Agency shall notify Developer of such dispute within sixty (60) days after receiving
Developer's list of the Developer's Construction Costs. The parties agree to cooperate to resolve
any such dispute.
(b) Exercise of Option
Agency shall be entitled to exercise the Purchase Option for the longer of (i) the ninety
(90) day period following the date Agency receives Developer's list of Developer's Construction
Costs; or (ii) sixty (60) days following the date the parties have resolved any dispute regarding
the list of the Developer's Construction Costs submitted by Developer. Agency shall exercise
Exhibit "E" to Purchase Agreement - Page 2
r
the Purchase Option by giving written notice to Developer, in accordance with Section 3 of this
Option Agreement.
(c) Determination of Purchase Price
Agency's purchase price for the Site ("Purchase Option Purchase Price") shall be the sum
of. (a) Twelve Dollars ($12.00) per square foot of the Site; (b) Eight Hundred Seventy -Eight
Thousand Five Hundred Sixty -One Dollars ($878,561); and (c) thirty-three and three -tenths
percent (33.3%) of Developer's Construction Costs.
2. Additional Terms Applicable to the Purchase Option
The following additional terms shall apply to the Purchase Option:
(a) The Purchase Option created hereby shall be irrevocable by Developer and
shall be binding upon the successors and assigns of Developer.
(b) The close of escrow under the Purchase Option shall occur within thirty
(30) days of Agency's exercise of the Purchase Option. The Purchase
Option Purchase Price shall be payable in cash upon the close of escrow.
Developer and Owner shall each pay one-half (Y2) of all closing costs,
including an ALTA standard coverage title insurance policy, to be issued
to Agency. Developer shall, at its cost, remove all monetary exceptions,
except current taxes not yet due and payable. Any other costs, if any, shall
be paid by Agency. Agency hereby agrees that, concurrent with the close
of escrow, Agency shall release Sam's from any claims that Agency has
against Sam's regarding the physical or environmental condition of the
Property; provided, however, such release shall not apply to any matters
arising out of, or related to, any fraud or intentional misrepresentations or
warranties made by Sam's in this Option Agreement.
(c) Notwithstanding any covenant, term, or provision in this Section 2 to the
contrary, Agency shall not be obligated to exercise the Purchase Option.
(d) Notwithstanding anything to the contrary herein, Developer shall have the
right to extend the Completion Date by providing written notice to
Agency, in the event that Developer is Aelayed by 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; or any other causes beyond the
reasonable control or without the fault of Developer. In the event of such
a delay (herein "Enforced Delay"), Developer 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 from Developer is sent to
Exhibit "E" to Purchase Agreement - Page 3 54
_170
Agency within sixty (60) 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, (ii)
Developer's failure to negotiate agreements with prospective tenants or
users, (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.
(e) In the event that Developer has commenced construction of a discount
membership warehouse on the Site as of the Completion Date, the
Completion Date shall be extended on a day-to-day basis, so long as
Developer diligently continues such construction of a discount
membership warehouse.
3. 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) or by 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: Sam's Real Estate Business Trust
2001 SE loth Street
Bentonville, AR 72716-0550
With a copy to: Gresham, Savage, Nolan & Tilden
550 East Hospitality Lane, Suite 550
San Bernardino, California 92408
Attn: J. Matthew Wilcox, Esq.
Notices shall be deemed effective upon receipt or rejection.
4. Agency's Option to Acquire Plans
If Agency exercises the Purchase Option in accordance with this Option Agreement, at
the option of the Agency, which may be exercised in the Agency's sole and absolute discretion,
Exhibit "E" to Purchase Agreement - Page 4
1
the Developer shall deliver to the Agency an executed assignment in a form reasonably
acceptable to the Agency of any rights that Developer may have 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 discount membership warehouse on the Site (the
"Plans"), together with copies of all of the Plans, as have been prepared for the development of
the Site 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'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.
5. 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. In the
event of an action, each party shall bear its own attorneys' fees.
6. Automatic Termination.
In the event that: (i) Agency does not timely exercise the Purchase Option, (ii) Agency
does not provide Agency's Request for Costs within sixty (60) days after the Completion
Deadline, or (iii) Developer completes construction of a discount membership warehouse on the
Site, then Agency's Purchase Option shall automatically terminate and be of no further force or
effect and shall not be reinstated under any circumstance. If requested by Developer following
the termination of this Option Agreement, Agency shall execute and record a termination of this
Option Agreement within fifteen (15) days of such request by Developer.
7. Nonliability of Agency Officials and Employees
Except as otherwise provided by law, no officer, official, employee, agent, member, 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 any breach of any obligations of Agency pursuant to this
Option Agreement.
8. Nondiscrimination
Exhibit "E" to Purchase Agreement - Page 5
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.
9. 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.
10. 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.
11. 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.
12. 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]
Exhibit "E" to Purchase Agreement - Page 6�
�7
IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the
date first above written.
ATTEST:
ASSISTANT SECRETARY
(Corporate Seal)
ATTEST:
JUNE GREEK, AGENCY SECRETARY
"DEVELOPER"
SAM'S REAL ESTATE BUSINESS TRUST,
a Delaware statutory trust
By:
Name:
Its:
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY
a public body, corporate and politic
By:
Thomas P. Genovese, Executive Director
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
0
M. Katherine Jenson, Agency Counsel
Exhibit "E" to Purchase Agreement - Page 7 �''
'�
STATE OF CALIFORNIA )
ss
COUNTY OF )
On
personally appeared
before me,
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.
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
before me,
Notary Public
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
Exhibit "E" to Purchase Agreement - Page 8. r 5 tY: j
1 75
Exhibit "F"
ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit "F" to Purchase Agreement i r�
ASSIGNMENT OF PURCHASE AGREEMENT
This Assignment of Purchase Agreement ("Assignment") is entered into as of this
day of by and between
("Assignor"), and ("Assignee").
RECITALS
WHEREAS, effective , ("Seller") and
Assignor entered into a Purchase and Sale Agreement and Joint Escrow Instructions ("Purchase
Agreement"), regarding the sale and purchase of approximately acres located in the City of
, County of , as specifically described in the Purchase Agreement
("Property");
WHEREAS, Section 22 of the Purchase Agreement provides that Assignor may assign its
rights and obligations under the Purchase Agreement to Assignee; and
WHEREAS, Assignor desires to assign its rights and obligations under the Purchase
Agreement to Assignee, and Assignee desires to consent to and accept the Assignment of
Assignor's rights and obligations under the Purchase Agreement.
OPERATIVE PROVISIONS
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are
incorporated herein by this reference and in the mutual covenants contained herein, and of other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereby agree as follows:
1. Assignment and Assumption. Assignor hereby sells, transfers and assigns to
Assignee all of its rights and obligations under the Purchase Agreement and Assignee hereby
accepts same.
2. Governing Law. This Assignment shall be governed according to the laws of the
State of California.
3. Binding Effect. This Assignment shall be binding upon and shall inure to the
benefit of Assignor and Assignee, and their respective successors and assigns.
4. Counterparts. This Assignment may be executed in any number of counterparts,
each of which shall be deemed an original but all of which, together, shall constitute one and the
same agreement.
[END — SIGNATURES ON NEXT PAGE]
Exhibit "F" to Purchase Agreement - Page 1 `
7
i
IN WITNESS WHEREOF, Assignor and Assignee of executed this Assignment as of the
date first set forth above.
"Assignor"
By:
Its:
"Assignee"
By:
Its:
Seller hereby consents to the foregoing
Assignment.
SELLER:
By:
Its:
Exhibit "F" 'to Purchase Agreement - Page 2 r,
.I.
WHEN RECORDED MAIL TO:
DOCUMENTARY TRANSFER TAX:
NOT OF PUBLIC RECORD, PURSUANT TO REVENUE AND TAXATION CODE SECTION 11932
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic,
does hereby GRANT to
SAM'S REAL ESTATE BUSINESS TRUST, a Delaware statutory trust
that certain real property in the City of La Quinta, County of Riverside, State of California, described on
Exhibit "A", attached hereto and incorporated herein by reference.
This grant is subject to those certain matters listed on Exhibit `B", attached hereto and incorporated
herein by reference. The Health and Safety Code Section referenced on Exhibit "C" attached hereto, is
incorporated herein by reference.
Dated: 92005 LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
ATTEST: politic
June Greek, Agency Secretary
MAIL TAX STATEMENTS AS DIRECTED TO:
By:
Thomas Genovese
Its: Executive Director
APPROVED AS TO FORM:
Rutan & Tucker, LLP
M. Katherine Jenson, Agency Counsel
Exhibit "G" to Purchase Agreement -�
STATE OF )
COUNTY OF )
On , 2005, before me, the undersigned, a Notary Public in and for said
County and State, 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 entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
STATE OF )
COUNTY OF )
On , 2005, before me, the undersigned, a Notary Public in and for said
County and State, 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 entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
Exhibit "G" to Purchase Agreement i 3
EXHIBIT "A'
LEGAL DESCRIPTION
Exhibit "G" to Purchase Agreement
,1
I:
PERMITTED EXCEPTIONS
Exhibit "G" to Purchase Agreement 6 e;
EXHIBIT "C"
Pursuant to California Health & Safety Code Section 33436:
"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 premises herein
conveyed, nor shall the grantee or any person claming 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
premises herein conveyed. The foregoing covenants shall run with the
land."
Exhibit "G" to Purchase Agreement
i 3
Exhibit "H"
ENTITY TRANSFEROR
Personally appeared before me the undersigned officer, duly authorized to administer
oaths, Thomas Genovese, who being duly sworn according to law, deposes and says on oath as
follows:
1. The undersigned is presently Executive Director of La Quinta Redevelopment
Agency, a public body, corporate and politic (the "Agency").
2. The undersigned is familiar with the affairs of the Agency and has personal
knowledge of the facts sworn to in this Affidavit, and is authorized on behalf of the Agency to
make this Affidavit.
3. The Agency is the owner of that certain property (the "Property") described on
Exhibit "A" attached hereto and by this reference made a part hereof and the Agency has
caused to be executed and delivered that certain deed, of even date herewith, conveying the
Property to Sam's R eal Estate Business Trust, a Delaware statutory trust ("Purchaser").
4. Section 1445 of the Internal Revenue Code provides that a purchaser of a U.S.
real property interest must withhold tax if the seller is a foreign person. For U.S. tax purposes
(including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real
property interest under local law) will be the transferor of the property and not the disregarded
entity. To inform the Purchaser that the withholding of tax is not required upon the disposition
of the Property by the Agency, the undersigned hereby certifies the following on behalf of the
Agency:
(a) The Agency is not a disregarded entity as defined in Section 1.1445-
2(b)(2)(iii);
(b) The Agency's U.S. tax payer Identification Number is 95-3740431;
(c) The Agency's office address is
5. The Agency understands that this certification may be disclosed to the Internal
Revenue Service by the Purchaser and that any false statement contained herein could be
punished by fine, imprisonment, or both.
6. Under penalties of perjury, I declare that I have examined this certification and
to the best of my knowledge and belief it is true, correct and complete, and. I further declare
that I have authority to sign this document on behalf of the Agency.
Exhibit " H " to Purchase Agreem ent - Page 1 184
GIVEN under my hand and seal this day of , 200_
By:
Its:
STATE OF
COUNTY OF
On , 2005, before me, the undersigned, a Notary Public in and
for said County and State, 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 tome 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
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public
Exhibit " H " to Purchase Agreem ent - Page 2
EXHIBIT " A"
DESCRIPTION OF PROPERTY
Exhibit " H " to Purchase Agreem ent - Page 3 4
[to be inserted]
EXHIBIT "I"
GRANT OF EASEMENT
Exhibit "I" to Purchase Agreement - Page 1 Y,.
COUNCIL/RDA MEETING DATE. March 15, 2005
Joint Pubic Hearing Between the City Council and
Redevelopment Agency to Consider Adoption of a
Resolution Approving a Purchase and Sale
Agreement Between the La Quinta
Redevelopment Agency and Stamko Development
Company LP Regarding an Approximately 2.64
Gross Acre Parcel of Agency -Owned Commercial
Property Located Southwest of the Intersection of
Highway 1 1 1 and Dune Palms Road
RECOMMENDATION:
AGENDA CATEGORY:
BUSINESS SESSION:
CONSENT CALENDAR:
STUDY SESSION:
PUBLIC HEARING:
Adopt a Resolution of the La Quinta Redevelopment Agency approving a Purchase and
Sale Agreement between the La Quinta Redevelopment Agency and Stamko
Development Company LP ("Stamko") regarding a 2.64 gross acre parcel of Agency -
owned commercial property generally located southwest of the intersection of
Highway 1 1 1 and Dune Palms Road subject to changes approved by the Executive
Director and Agency Counsel, and authorize the Executive Director to execute the
required documents.
FISCAL IMPLICATIONS:
This transaction involves the sale of approximately 2.64 gross acres (2.32 net acres)
of land to Stamko; the sale will generate approximately $2,714,445 of land sale
income. When the Agency purchased this property it borrowed $5,800,000 from the
City of La Quinta General Fund to cover the cost of acquiring that portion of the larger
27.75 acre parcel that would be used for commercial development. The loan principal
has accrued interest at the rate of 7% per annum. The land sale proceeds from this
sale and the sale of the 9.59 acres to Sam's Real Estate Business will allow the
Agency to repay the principal and interest, and to realize a profit on the property. The
purchase of the property is at $26.86 per net acre, which reflects the fair market value
of the property pursuant to the Agency's recent appraisal. The property is frontage
property on Highway 1 1 1, and therefore it has a premium value.
tL
BACKGROUND AND OVERVIEW:
In July 2004 the La Quinta Redevelopment Agency purchased a 27.75 acre property
to facilitate the development of affordable housing. The northerly 12 acres of this
parcel was slated for commercial use; the purchase of the commercial portion of this
parcel was funded through a loan from the City's General Fund. After purchasing the
property, Agency staff was contacted by representatives from Sam's Club stores
regarding purchasing up to ten acres of this property, which is adjacent to the new
Wal-Mart SuperCenter, to facilitate development of a Sam's Club Warehouse Center.
Discussions ensued and a purchase transaction for 9.59 acres was concluded. This
left a 2.64 gross acre, commercially zoned parcel that featured frontage on both
Highway 1 1 1 and Dune Palms Road.
Agency staff had this parcel appraised in October 2004; the appraisal established a fair
market value for a 2.32 net acre parcel (not including land that would be dedicated to
the City for Highway 1 1 1 and Dune Palms Road improvements) of $26.86 per square
foot of land area. The sale transaction would sell this land to Stamko for the appraised
value of $26.86 per square foot of land area.
The attached Purchase and Sale Agreement (Attachment 1) facilitates the sale of a
2.64 gross acre parcel to Stamko. Ms. Clarke has indicated that she will combine this
parcel with Stamko's adjoining holdings to the west and expand the existing
commercial center to the east. The Agreement includes the standard provisions the
Agency incorporates when selling property. This sale, however, is contingent upon
Sam's closing its transaction with the Agency for the adjoining property.
FINDINGS AND ALTERNATIVES:
The alternatives available to the Redevelopment Agency Board include:
Adopt a Resolution of the La Quinta Redevelopment Agency approving a
Purchase and Sale Agreement between the La Quinta Redevelopment Agency
and Stamko Development Company LP regarding a 2.64 gross acre parcel of
Agency -owned commercial property generally located southwest of the
intersection of Highway 1 1 1 and Dune Palms Road subject to changes approved
by the Executive Director and Agency Counsel, and authorize the Executive
Director to execute the required documents; or
2. Do not adopt a Resolution of the La Quinta Redevelopment Agency approving a
Purchase and Sale Agreement between the La Quinta Redevelopment Agency
and Stamko Development Company LP regarding a 2.64 gross acre parcel of
Agency -owned commercial property generally located southwest of the
intersection of Highway 1 1 1 and Dune Palms Road; or
3. Provide staff with alternative direction.
1��
Respectfully submitted,
"Ok --4
Douglas R vans,
Community Development Director
Approved for Submission by:
Thomas P. Genovese, Executive Director
Attachment: 1. Purchase and Sale Agreement
RESOLUTION NO. RA
A RESOLUTION OF THE LA QUINTA REDEVELOPMENT
AGENCY APPROVING AN AGREEMENT FOR PURCHASE
AND SALE AND ESCROW INSTRUCTIONS BETWEEN
THE AGENCY AND STAMKO DEVELOPMENT CO. LP FOR
THE PROPERTY LOCATED AT THE INTERSECTION OF
HIGHWAY 111 AND DUNE PALMS ROAD
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 § 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 May 16, 1989, by Ordinance No. 139; and
WHEREAS, the Agency staff has negotiated an Agreement for
Purchase and Sale and Escrow Instructions ("Agreement") with Stamko
Development Co. LP, a California limited partnership ("Stamko"), pursuant to which
the Agency is to sell to Stamko certain real property located within the Project Area
at the intersection of Highway 111 and Dune Palms Road (the "Property")
comprising approximately 2.32 net usable acres for Twenty -Six Dollars and Eighty -
Six Cents ($26.86) per square foot, with the purchase price estimated to be
approximately Two Million Seven Hundred Fourteen Thousand Four Hundred Forty -
Five Dollars ($2,714,445.00) pursuant to the terms and conditions set forth in the
Agreement; and
WHEREAS, the Planning Commission and the City Council have
considered and approved an Amendment to the Center at La Quinta Specific Plan
(the "Specific Plan") to incorporate the Property. The use proposed by Stamko is
consistent with the Specific Plan. In addition, an Environmental Assessment
(2004-524) was prepared for this development and the remaining development of
the Specific Plan area. The Environmental Assessment fully assessed the impacts
of the development of these areas as well as the affordable housing project on the
southern portion of the specific plan area. On the basis of that Environmental
Assessment, the City Council certified a Mitigated Negative Declaration of
environmental impact on December 21, 2004. A Notice of Determination was filed
with the County Clerk on December 22, 2004. City staff and the City's
consultants have carefully reviewed the scope of the development proposed by
Resolution No. RA
Purchase and Sale Agreement - Stamko
Adopted: March 15, 2005
Page 2
Stamko and have concluded that the potential impacts of its construction and
operation are well within those previously analyzed in the Environmental
Assessment and that no additional impacts will result from the project. In addition,
there is no new information or change in circumstances which would trigger any
obligation to complete further environmental analysis. Therefore, City staff has
determined that no further environmental review is necessary pursuant to California
Public Resources Code Section 21166.
WHEREAS, Health and Safety Code Section 33431 requires that the
Agency Board and the City Council conduct a noticed joint public hearing with
respect to the Agency's sale of the Property pursuant to the Agreement; and
WHEREAS, the joint public hearing has been conducted in accordance
with applicable requirements of law; and
WHEREAS, the City Council and the Agency have considered all the
information and evidence presented by the City/Agency staff and presented by
persons wishing to appear and be heard concerning the Agency's sale of the
Property pursuant to the Agreement; and
WHEREAS, the 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 Agency hereby determines that the Agency's sale of
the Property pursuant to the Agreement is necessary to effectuate the purposes of
the Redevelopment Plan;
NOW, THEREFORE, BE IT RESOLVED BY THE LA QUINTA
REDEVELOPMENT AGENCY AS FOLLOWS:
1. That the above recitals are true and correct and incorporated herein.
2. That the Agency hereby finds and determines that the Agreement effectuates
the purposes of the Community Redevelopment Law (Health & Safety Code
§ 33000 et seq.) and of the Redevelopment Plan and is in the best interests
of the citizens of the City of La Quinta.
3. The Agreement, a copy of which is on file with the Agency Secretary, is
hereby approved. The Agency Executive Director and Agency Counsel are
hereby authorized and directed to make final modifications to the Agreement
Resolution No. RA
Purchase and Sale Agreement — Stamko
Adopted: March 15, 2005
Page 3
that are consistent with the substantive terms of the Agreement approved
hereby, and the Agency Executive Director is authorized to thereafter sign
the Agreement on behalf of the Agency.
4. The Agency Executive Director is authorized and directed, on behalf of the
Agency, to (i) sign such other and further documents, including but not
limited to 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 Agreement.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the La
Quinta Redevelopment Agency held this 15th day of March, 2005, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
LEE OSBORNE, Agency Chair
City of La Quinta, California
ATTEST:
JUNE S. GREEK, Agency Secretary
City of La Quinta, California
APPROVED AS TO FORM:
M. KATHERINE JENSON, Agency Counsel
City of La Quinta, California
ATTACHMENT 1
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
BY AND BETWEEN THE
LA QUINTA REDEVELOPMENT AGENCY
("SELLER")
AND
STAMKO DEVELOPMENT CO. LP,
a California limited partnership
("BUYER")
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582617.03 a03/10/05
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS
("Agreement") is made and entered into as of , 2005 ("Effective Date") by
and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Seller"), and STAMKO DEVELOPMENT CO. LP, a California limited partnership
("Buyer").
RECITALS:
A. Seller is the owner of that certain real property located in the City of La Quinta
("City"), County of Riverside, State of California, more particularly described and depicted in
Exhibit "A" attached hereto and incorporated herein by this reference ("Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to sell the
Property to Buyer, on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants
herein contained, the parties hereto agree as follows:
1. PURCHASE PRICE.
1.1 Amount. Subject to the terms of this Agreement, Buyer hereby agrees to
purchase the Property from Seller, and Seller agrees to sell the Property to Buyer, for Twenty -
Six Dollars and Eighty -Six Cents ($26.86) per gross square foot of "Net Usable Property" (as
that term is defined below). The Net Usable Property comprises approximately 2.32 acres. The
purchase price for the Property is estimated to be Two Million Seven Hundred Fourteen
Thousand Four Hundred Forty -Five Dollars ($2,714,445.00) (the "Purchase Price"). For
purposes of this Agreement, the term "Net Usable Property" shall mean all of the Property
except for any portions thereof required to be dedicated to the City, CalTrans, or any other public
agency for right of way purposes.
1.2 Payment of Purchase Price. The Purchase Price shall be paid in accordance with
the following:
1.2.1 Within five (5) days after the "Opening of Escrow" Buyer shall deposit
with "Escrow Holder" (as those terms are defined in Section 2.1) in "Good Funds" (as used in
this Agreement, the term "Good Funds" shall mean 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) the sum of Fifty Thousand Dollars ($50,000) as
a good faith deposit (the "Deposit"). In the event the "Escrow" (as that term is defined in
Section 2.1) closes, Escrow Holder shall apply the Deposit towards the Purchase Price. In the
event the Escrow is terminated and fails to close, for any reason other than Buyer's default of the
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terms hereof, Escrow Holder shall promptly, but no later than five (5) days after said termination,
refund to Buyer the Deposit.
1.2.2 On or before 5:00 p.m. on the business day preceding the "Closing Date"
(as that term is defined in Section 4.1) or such earlier time as required by Escrow Holder in order
to close Escrow on the Closing Date, Buyer shall deposit with Escrow Holder in Good Funds the
Purchase Price, less the Deposit, and such additional funds as may be required to meet Buyer's
portion of the closing costs as hereinafter provided.
2. ESCROW.
2.1 Opening of Escrow. Closing of the sale of the Property shall take place through
an escrow ("Escrow") to be established within three (3) business days after the execution of this
Agreement by the parties hereto, with Stewart Title Company ("Escrow Holder") at its office
located at 2 North LaSalle Street, Suite 1400, Chicago, Illinois 60602. The opening of the
Escrow (the "Opening of Escrow") shall be deemed to be the date that a fully executed copy of
this Agreement is delivered to the Escrow Holder. Escrow Holder is instructed to notify Buyer
and Seller in writing of the date of the Opening of Escrow.
2.2 Escrow Instructions. This Agreement, once deposited in Escrow, shall constitute
the joint escrow instructions of Buyer and Seller to Escrow Holder. Additionally, if Escrow
Holder so requires, Buyer and Seller agree to execute the form of escrow instructions that
Escrow Holder customarily requires in real property escrows administered by it. In the event of
any conflict or inconsistency between Escrow Holder's standard instructions and the provisions
of this Agreement, the provisions of this Agreement shall supersede and be controlling.
3. DUE DILIGENCE.
3.1 Due Diligence. As used herein, the term "Due Diligence Period" shall refer to a
period of time to expire upon the date that is forty-five (45) days after the Effective Date.
Buyer's obligation to consummate the transactions contemplated by this Agreement is subject to
and conditioned upon Buyer's approval, deemed approval or waiver of the right to approve of the
following contingencies set forth in this Section 3.1 (collectively, the "Contingencies"):
3.1.1 Title/Survey. Within five (5) days after the Effective Date, Seller shall
deliver to Buyer a preliminary title report prepared by Stewart Title Guaranty Company ("Title
Company") describing the state of title of the Property together with copies of all underlying
documents (collectively the "Preliminary Title Report"). Buyer may, at its sole cost and
expense, obtain a current survey of the Property (the "Survey") provided it does so within fifteen
(15) days after the Effective Date. Notwithstanding anything herein to the contrary, Seller shall
be obligated to remove all monetary encumbrances against the Property excluding non -
delinquent real property taxes and assessments. Buyer shall notify Seller in writing of any
objections Buyer may have to title exceptions contained in the Preliminary Title Report or
matters shown on the Survey (if Buyer has obtained) no later than the date which is fifteen (15)
days after the later of (i) its receipt of the Preliminary Title Report or (ii) its receipt of the Survey
within the time period set forth above ("Buyer's Objection Notice"). Buyer's approval or
disapproval of the matters set forth in the Preliminary Title Report (and the Survey, if applicable)
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may be granted or withheld in Buyer's sole and absolute discretion. Buyer's failure to provide
Seller with a Buyer's Objection Notice within said period shall constitute Buyer's approval of all
exceptions to title shown on the Preliminary Title Report and all matters shown on the Survey (if
Buyer has obtained). Seller shall have a period of fifteen (15) days after receipt of Buyer's
Objection Notice in which to deliver written notice to Buyer ("Seller's Notice") of Seller's
election to either (i) agree to remove the objectionable items on the Preliminary Title Report or
Survey prior to the Close of Escrow, or (ii) decline to remove any such title exceptions or Survey
matters and terminate Escrow and the obligations of Buyer and Seller to purchase and sell the
Property under this Agreement. Seller's failure to provide Buyer with Seller's Notice within said
period shall constitute Seller's election to decline to remove the title exceptions and terminate the
Escrow. If Seller notifies Buyer of its election to terminate rather than remove the objectionable
items on the Preliminary Title Report or Survey, or if Seller is deemed to have elected to decline
to remove the title exceptions and terminate the Escrow, Buyer shall have the right, by written
notice delivered to Seller within five (5) days after (a) Buyer's receipt of Seller's Notice or (b)
the date Seller is deemed to have elected to decline to remove the exceptions and terminate the
Escrow (as applicable), to agree to accept the Property subject to the objectionable items, in
which event Seller's election to terminate shall be of no effect, and Buyer shall take title at the
Close of Escrow subject to such objectionable items without any adjustment to or credit against
the Purchase Price. All exceptions to title shown on the Preliminary Title Report, other than
those which Seller may agree to remove pursuant to this Section 3.1.1, shall be deemed to have
been approved by Buyer unless Seller is notified otherwise in writing.
Upon the issuance by the Title Company of any amendment or supplement to the
Preliminary Title Report which adds additional exceptions, including any survey exceptions, the
foregoing right of review and approval shall also apply to said amendment or supplement;
provided, however, that Buyer's initial period of review and approval or disapproval of any such
additional exceptions shall be limited to fifteen (15) days following receipt of notice of such
additional exceptions. The process set forth above for Buyer's review and Seller's response
shall apply to any review and response with respect to any amendment or supplement to the
Preliminary Title Report issued by the Title Company, and the Closing shall be extended for
such period as is necessary to allow for that review and response process to be completed.
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3.1.2 Environmental Condition.
(a) During the Due Diligence Period, Seller shall permit Buyer and
Buyer's directors, engineers, analysts, officers, employees, agents, contractors,
subcontractors, consultants, representatives, attorneys and advisors (collectively,
the "Buyer Representatives"), at the sole cost and expense of Buyer, to conduct
physical inspections of the Property, including the soil, subsurface soils, drainage,
seismic and other geological and topographical matters, location of asbestos, toxic
substances, hazardous materials or wastes, if any, and any other investigations as
Buyer deems prudent with respect to the physical condition of the Property in
order to determine the Property's suitability for Buyer's intended development.
In no event shall Buyer conduct any intrusive testing procedures on the Property
without the prior written consent of Seller, which consent shall not be
unreasonably withheld. Such investigations may be made by Buyer and/or Buyer
Representatives during any normal business hours. Buyer shall also have the right
n
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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. Seller shall cooperate to assist Buyer in completing such
inspections and special investigations at no cost or expense to Seller. Such
inspections and investigations shall be conducted only upon no less than twenty-
four (24) hours' notice to Seller and shall be conducted at such times and in such
a manner as to minimize any disruption to the Property. Seller shall have the
right, but not the obligation, to accompany Buyer during such investigations
and/or inspections.
(b) As a condition to any such entry, Buyer 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 Seller prior to initial entry a
certificate of insurance evidencing that Buyer and/or the persons entering the
Property have procured and have in effect an all-risk public liability insurance
policy meeting the following requirements: (1) the insurance shall be written on a
per occurrence and not claims -made basis; (2) the amount of insurance shall be a
combined single limit of not less than Two Million Dollars ($2,000,000.00) with a
deductible or self -insured retention amount of not more than One Hundred
Thousand Dollars ($100,000); (3) the policy shall name or be endorsed to Seller
and the City and their respective officers, officials, members, employees, agents,
and representatives (collectively, "Seller/City & Seller/City Personnel") as
additional insureds; (4) the insurance shall not contain any special limitations on
the scope of protection afforded to Seller/City & Seller/City Personnel; (5) the
policy shall not be canceled by the insurer or Buyer unless there is a minimum of
thirty (30) days prior written notice to Seller; (6) the insurer shall waive
subrogation rights against the Seller/City & Seller/City Personnel; (7) the
insurance shall be primary insurance and not contributory with any insurance any
of the Seller/City & Seller/City Personnel may have; and (8) the insurance shall
apply separately to each insured against whom a claim is made or suit is brought,
except with respect to the limits of the insurer's liability; and (vi) following
Buyer's entry, repair any and all damage to the Property caused by such
inspections or investigations in a timely manner.
(c) Buyer shall promptly pay and discharge all demands for payment
relating to Buyer's entry on and investigation of the Property and take all other
steps to avoid the assertion of claims of lien against the Property. In the event a
claim of lien is recorded by reason of Buyer's entry on the Property, Buyer,
within twenty (20) days of such recordation, shall either (i) record or deliver a
surety bond sufficient to release such claim or lien in accordance with applicable
law; or (ii) provide Seller with such other assurance as Seller may require for the
i 90
payment of the claim or lien. Seller may elect to record and post notices of non -
responsibility from time to time on and about the Property.
(d) Buyer agrees to indemnify, defend, protect and hold Seller/City &
Seller/City Personnel and the Property, free and harmless from any and all loss,
liability, claims, action, suit, proceeding, deficiency, fine, penalty, damages and
expenses (including, but not limited to, reasonable attorneys' fees, expert witness
fees and costs) arising directly or indirectly from: (i) the exercise of said entry,
(ii) Buyer's failure to comply with the conditions to Buyer's entry onto the
Property provided herein, and (iii) the presence of any Hazardous Materials (as
defined in Section 12 herein) on, under, in or about the Property occurring prior to
or after the Close of Escrow resulting from the activities of Buyer or Buyer
Representatives on the Property prior to the Close of Escrow. Such undertaking
of indemnity shall survive Close of Escrow or the termination of this Agreement
for any reason.
(e) Prior to expiration of the Due Diligence Period, Buyer shall notify
Seller in writing ("Buyer's Property Objection Notice") of any objections Buyer
may have to any physical or environmental conditions of the Property (the
"Disapproved Property Matters"). Buyer's approval or disapproval of the
physical and environmental conditions of the Property may be granted or withheld
in Buyer's sole and absolute discretion. Buyer's failure to provide Seller with a
Buyer's Property Objection Notice shall constitute Buyer's approval of the
condition of the Property. Seller shall have a period of fifteen (15) days after
receipt of Buyer's Property Objection Notice in which to deliver written notice to
Buyer ("Seller's Response") of Seller's election to either (i) agree to remove the
objectionable items prior to the Close of Escrow, or (ii) decline to remove the
objectionable items and terminate Escrow and the obligations of Buyer and Seller
to purchase and sell the Property under this Agreement. Seller's failure to provide
Buyer with Seller's Response within said period shall constitute Seller's election
to terminate. If Seller notifies Buyer of its election to terminate rather than
remove the objectionable items or if Seller is deemed to have elected to terminate,
Buyer shall have the right, by written notice delivered to Seller within five (5)
days after (a) Buyer's receipt of Seller's Response or (b) the date Seller is deemed
to have elected to terminate (as applicable), to agree to accept the Property subject
to the objectionable items, in which event Seller's election to terminate shall be of
no effect, and Buyer shall take title at the Close of Escrow subject to such
objectionable items without any adjustment to or credit against the Purchase
Price. Buyer's inspections and investigations of the Property shall be conducted
upon the terms and conditions set forth in this Agreement.
4. CLOSE OF ESCROW.
4.1 Close of Escrow; Closing Date. Provided that all of the conditions of this
Agreement precedent to the Close of Escrow (as hereinafter defined) have been satisfied (or
waived by the appropriate party) prior to or on the Closing Date (as hereinafter defined), the
Closing (as hereinafter defined) of this transaction for the sale and purchase of the Property shall
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99
take place on the date which is five (5) days after the date on which all of Buyer's Conditions to
Closing and all of Seller's Conditions to Closing have been satisfied (or waived by the
appropriate party); provided, however, in no event shall the Closing occur, if at all, later than
June 1, 2005 ("Closing Date"). The terms "Close of Escrow" and the "Closing" are used herein
to mean the time Seller's grant deed conveying fee title to the Property to Buyer is recorded in
the Official Records of the Office of the County Recorder of Riverside ("Official Records"). If
Escrow is not in a condition to close by the Closing Date,. either party not then in default
hereunder may, upon five (5) days advance written notice to the other party and Escrow Holder,
elect to terminate this Agreement and the Escrow. No such termination shall release either party
then in default from liability for such default. Such defaults shall be governed by the terms of
Section 11 hereof. If neither party elects to terminate this Agreement and the Escrow pursuant to
this Section, Escrow Holder shall close the Escrow as soon as possible. Notwithstanding
anything herein to the contrary, if the only outstanding items necessary to close the Escrow are
ministerial - - such as the execution of documents - - the Closing Date shall be extended for up to
two business days to allow the parties to complete the transaction and close the Escrow.
4.2 Recordation; Release of Funds and Documents.
4.2.1 Escrow Holder is directed, on the Closing Date, to record in the Official
Records, the following documents in the order listed: (i) the grant deed in the form of the
attached Exhibit "B" transferring title to the Property to Buyer .("Grant Deed"); and (ii) such
other and further documents as may be directed jointly by Buyer and Seller.
4.2.2 Upon the Closing, Escrow Holder shall deliver (i) the Purchase Price, less
any of Seller's closing costs, to Seller, and (ii) conformed copies of all recorded documents to
both Buyer and Seller.
5. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.
5.1 Buyer's Obli atg ions. Buyer agrees that on or before 5:00 p.m. of the last business
day immediately preceding the Closing Date, Buyer shall deposit or cause to be deposited with
Escrow Holder the following:
(a) the balance of the Purchase Price (i.e., the Purchase Price less the
Deposit); and
(b) any and all additional funds, instruments or other documents required
from Buyer (executed and acknowledged where appropriate) as may be
reasonably necessary in order for the Escrow Holder to comply with the
terms of this Agreement.
5.2 Seller's Obligations. Seller agrees that on or before 5:00 p.m. of the last business
day immediately preceding the Closing Date, Seller shall deposit or cause to be deposited with
Escrow Holder each of the following:
(a) the executed and acknowledged Grant Deed;
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(b) a Certificate of Non -Foreign Status (the "Non -Foreign Affidavit")
executed and acknowledged by Seller in the form attached hereto as
Exhibit "C"; and
(c) all other funds, items, and instruments required from Seller (executed and
acknowledged where appropriate) as may be reasonably necessary in order
for Escrow Holder to comply with the provisions of this Agreement.
6. TITLE INSURANCE POLICY.
6.1 Title Policy. On the Closing Date, the Title Company, as insurer, shall issue an
ALTA owner's standard coverage policy of title insurance ("Title Policy"), in favor of Buyer, as
insured, with liability in the amount of the Purchase Price, subject to the following:
(a) non -delinquent real property taxes and assessments;
(b) title exceptions approved or deemed approved by Buyer pursuant to
Section 3.1.1 above;
(c) title exceptions, if any, resulting from Buyer's entry onto the Property
pursuant to the provisions of Section 3.1.2 above;
(d) any other exceptions approved by Buyer; and
(e) the standard printed conditions and exceptions contained in the ALTA
standard owner's policy of title insurance regularly issued by the Title
Company.
6.2 Payment for Title Policy. Seller shall be responsible for the charges for the Title
Policy with coverage up. to the amount of the Purchase Price. Buyer shall pay any additional
coverage or endorsements it requests. Buyer may, at its election, request an ALTA extended
policy of title insurance. Buyer shall pay the difference for the charges between the premium for
the extended coverage title policy and the premium for the standard coverage title policy that
Seller is responsible for hereunder. Buyer shall also pay for the ALTA survey, if applicable.
7. REAL PROPERTY TAXES. Buyer shall pay all property taxes and assessments
assessed against the Property after the Closing. The Property is currently exempt from the
payment of property taxes and assessments due to Seller's status as a public agency. In the
event, however, property taxes or assessments are mistakenly assessed against the Property after
the Closing for any period prior to the Closing, Buyer shall be responsible for timely payment
thereof but Buyer may apply for a refund for that portion of taxes and assessments allocated to
any period prior to the Closing, in accordance with the applicable provisions of the Revenue and
Taxation Code. Seller shall cooperate with Buyer, at no cost to Seller, to effect such refund.
8. CONDITIONS PRECEDENT TO CLOSING.
8.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer under this
Agreement to purchase the Property and close the Escrow shall be subject to the satisfaction or
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signed written waiver by Buyer of each and all of the following conditions precedent
(collectively "Buyer's Conditions to Closing"):
(a) on the Closing Date, the Title Company shall be irrevocably committed to
issue the Title Policy pursuant to Section 6 above insuring fee title to the
Property as being vested in Buyer;
(b) Escrow Holder holds all instruments and funds required for the Closing
and will deliver to Buyer the instruments and funds, if any, accruing to
Buyer pursuant to this Agreement;
(c) except as otherwise permitted by this Agreement, all representations and
warranties by the Seller in this Agreement shall be true on and as of the
Closing Date as though made at that time and all covenants of Seller
pursuant to this Agreement shall have been fulfilled by the Closing Date;
(d) Seller has closed, or concurrently with the Closing will close, the escrow
under that certain Purchase Agreement by and between Seller and Sam's
Real Estate Business Trust executed on or around ;
(e) Buyer has not timely disapproved, in writing, of the conditions of approval
attached to any site development permit that has been issued by the City to
Buyer for the Property; and
(f) Seller is not in material default of any term or condition of this Agreement
or, if Seller is in material default, such default has been waived, in writing,
by Buyer.
In the event that any of Buyer's Conditions to Closing are not satisfied, deemed satisfied,
or waived in a writing signed by Buyer prior to the expiration of the applicable period for
satisfaction or waiver, Buyer may terminate this Agreement. In the event Buyer or Seller is in
breach or default hereunder, the provisions of Section 11 shall apply. For purposes of paragraph
(e) above, a "timely" disapproval shall mean Buyer's disapproval within fifteen days after the
City's' issuance of the subject site development permit.
8.2 Conditions Precedent to Seller's Obligations. The obligations of Seller under this
Agreement shall be subject to the satisfaction or signed written waiver by Seller of each and all
of the following conditions precedent ("Seller's Conditions to Closing"):
(a) Escrow Holder holds the Purchase Price and all other instruments and
funds required for the Closing and will deliver to Seller the instruments
and funds, including but not limited to the Purchase Price (less Seller's
closing costs) accruing to Seller pursuant to this Agreement;
(b) except as otherwise permitted by this Agreement, all representations and
warranties by the Buyer in this Agreement shall be true on and as of the
Closing Date as though made at that time and all covenants of Buyer
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pursuant to this Agreement shall have been fulfilled by the Closing Date;
and
(c) Buyer is not in material default of any term or condition of this Agreement
or, if Buyer is in material default, such default has been waived, in
writing, by Seller.
In the event that any of Seller's Conditions to Closing are not satisfied, deemed satisfied,
or waived in a writing signed by Seller prior to the expiration of the applicable period for
satisfaction or waiver, Seller may terminate this Agreement. In the event Buyer or Seller is in
breach or default hereunder, the provisions of Section 11 shall apply.
9. POSSESSION.
Possession of the Property shall be delivered by Seller to Buyer on the Closing Date.
10. ALLOCATION OF COSTS.
10.1 Buyer's Costs. Buyer shall pay the following costs:
(a) fifty percent (50%) of Escrow Holder's escrow fee;
(b) Buyer's own attorney's fees incurred in connection with this Agreement
and the transactions contemplated hereby;
(c) fifty percent (50%) of all the charges for recording the Grant Deed, if any;
(d) the premium difference between the ALTA extended policy of title
insurance and the ALTA standard coverage policy of title insurance if
Buyer requests an extended policy; and
(e) any additional title insurance coverages Seller is not required to pay for
plus any title endorsements requested by Buyer.
10.2 Seller's Costs. Seller shall pay:
(a) fifty percent (50%) of the Escrow Holder's escrow fee;
(b) Seller's own attorney's fees in connection with this Agreement and the
transactions contemplated hereby;
(c) Any documentary transfer taxes associated with the conveyance;
(d) fifty percent (50%) of all the charges for recording the Grant Deed, if any;
and
(e) the premium for the Title Policy that Seller is required to pay pursuant to
this Agreement.
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11. REMEDIES.
11.1 Default by Seller. If Seller defaults under this Agreement, Buyer's sole remedy
shall be to record a lis pendens and enforce Buyer's right to specific performance and related
injunctive relief. Buyer waives any right to bring an action for damages against any or all of the
Seller/City & Seller/City Personnel, including, but not limited to any action for actual and/or
consequential damages.
Buyer's Initials
Seller's Initials
11.2 Default by Buyer. IF BUYER FAILS TO COMPLETE SAID PURCHASE AS
HEREIN PROVIDED BY REASON OF ANY DEFAULT BY BUYER, SELLER SHALL BE
RELEASED FROM OBLIGATION TO SELL THE PROPERTY TO BUYER, BUT SELLER,
BY INITIALING THIS PARAGRAPH, SHALL HAVE RELEASED BUYER FROM ANY
CLAIMS OR CAUSES OF ACTION ARISING OUT OF SUCH DEFAULT, AND SELLER
SHALL HAVE AGREED THAT SELLER SHALL RETAIN THE "DEPOSIT" AS
LIQUIDATED DAMAGES, AND THAT SUCH RETENTION SHALL BE SELLER'S SOLE
REMEDY AGAINST BUYER IN REGARD TO SUCH DEFAULT. THE PARTIES HERETO
HAVE CONSIDERED THE AMOUNT OF DAMAGES WHICH SELLER IS LIKELY TO
INCUR IN THE EVENT OF A DEFAULT OR BREACH HEREUNDER BY BUYER, AND
THE PARTIES HERETO HAVE AGREED THAT THE DEPOSIT IS A REASONABLE
APPROXIMATION AND LIQUIDATION OF SELLER'S POTENTIAL DAMAGES,
CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS
AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF
HARM TO SELLER THAT REASONABLY COULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. THE RECEIPT AND RETENTION OF SUCH AMOUNT BY SELLER IS
INTENDED TO CONSTITUTE THE LIQUIDATED DAMAGES TO SELLER PURSUANT
TO THE CALIFORNIA CIVIL CODE, AND SHALL NOT BE DEEMED TO CONSTITUTE
A FORFEITURE OR PENALTY WITHIN THE MEANING OF THE CALIFORNIA CIVIL
CODE, OR ANY SIMILAR PROVISION. SAID AMOUNT OF LIQUIDATED DAMAGES
SHALL BE IN LIEU OF ANY OTHER REMEDIES, DAMAGES OR SUMS DUE OR
PAYABLE TO SELLER. IN PLACING THEIR INITIALS AT THE PLACES PROVIDED,
EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE.
Buyer's Initials
12. "AS -IS".
Seller's Initials
Buyer acknowledges that during the Due Diligence Period Buyer shall have had an
adequate opportunity to inspect the Property and to investigate its physical characteristics and
condition and to conduct such other independent investigations as Buyer requires to determine
that it is prepared to complete the purchase of the Property on the terms and conditions stated
herein. Seller hereby warrants and represents that, to Seller's actual knowledge, there are no
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Hazardous Substances generated, released, stored, buried or deposited over, beneath, in or upon
the Property, except to the extent permitted by law after obtaining all necessary permits and
licenses thereof, nor has Seller or the City received any notice from any governmental agency
alleging that the Property is currently in violation of any governmental requirements relating to
Hazardous Materials (as hereinafter defined). As used in the preceding sentence, the term
"knowledge" shall mean the actual (not constructive or imputed) knowledge of Thomas
Genovese (Seller's Executive Director), without any investigation or inquiry or duty of
investigation or inquiry.
Subject to the limited representations and warranties of Seller set forth in this Agreement,
Buyer acknowledges that the purchase of the Property will be based on Buyer's own
investigation and that Buyer must perform its own due diligence with respect to all
environmental matters relating to the Property, and that Buyer is not relying on any
environmental audits or assessments performed by or on behalf of Seller. As used in this
Agreement, the term "Hazardous Materials" shall mean and include any pollutants, flammable,
explosives, petroleum products, radioactive materials, hazardous wastes, dangerous or toxic
substances or related materials, including substances defined as or included in the definition of
toxic or hazardous substances, wastes or materials under any federal, state or local laws,
ordinances, regulations or guidelines which relate to pollution, the environment or the protection
of public health and safety, or limiting, prohibiting or otherwise regulating the presence of such
materials. The foregoing representation and warranty by Seller shall survive the execution and
delivery of this Agreement, the recording of the Grant Deed and the Closing.
Except as provided herein, and subject to the limited representations and warranties of
Seller set forth in this Agreement, Buyer acknowledges that Buyer is purchasing the Property
with no representation or warranty by Seller, express or implied, regarding (i) the presence of
uncompacted fill, the condition of the soil, the geology, seismology, hydrology, or similar
matters on, under, or affecting the Property, (ii) the existence or condition of any improvements
in, on, or under the Property, (iii) the presence or absence of any Hazardous Materials in, on,
under, or affecting the Property, (iv) the design, construction, location, size, character, physical
condition or state of repair of the Property or any portion thereof; (v) the topography, drainage or
condition of the surface and subsurface soils of or on the Property, (vi) the merchantability,
habitability or fitness for any particular purpose of the Property, (vii) the past or future taxes or
assessments thereof, income therefrom or expenses thereof, (viii) the developability of the
Property, or (ix) that the Property is suitable for Buyer's contemplated use. Buyer acknowledges
that Seller has undertaken no investigation, and does not intend to undertake any investigation,
concerning any aspect of the physical or environmental condition of the Property and in no event
shall Seller have any obligation under this Agreement to cure or correct any physical defects or
problems with respect to the Property. By execution hereof, Buyer represents and warrants to
Seller that Buyer is an experienced, sophisticated buyer of commercial real estate with
knowledge and experience sufficient to enable it to evaluate the merits and risks of the sale, and
that it is represented by knowledgeable and experienced legal counsel of its own choosing and
agrees that neither Seller, nor its agents or representatives, has made, and that Buyer has not
relied upon, any representation or warranty of any kind which is not herein expressly set forth or
provided for, in connection with the sale of the Property or Buyer's actual purchase thereof
pursuant hereto, Buyer having elected to rely instead entirely upon its inspection of the Property
pursuant to the terms of this Agreement. Except for the warranties of Seller set forth in this
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Agreement, Buyer is acquiring the Property in an "AS -IS, WHERE -IS, WITH ALL FAULTS"
condition.
13. INDEMNITY
Buyer agrees, from and after the date of recordation of the Grant Deed, to defend,
indemnify, protect and hold harmless the Seller/City & Seller/City Personnel from, regarding and
against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions,
claims, losses, damages, fines, penalties, expenses, or costs of any kind or nature whatsoever,
together with fees (including, without limitation, reasonable attorneys' fees and experts' and
consultants' fees), occurring during and caused by Buyer's use and occupancy of the Property,
and resulting from or in connection with the actual or claimed generation, storage, handling,
transportation, use, presence, placement, migration and/or release of Hazardous Materials at, on,
in, beneath or from the Property, unless caused by the negligence or willful misconduct of any of
Seller/City & Seller/City Personnel. Notwithstanding the foregoing, Seller agrees to defend,
indemnify, protect and hold harmless the Buyer from, regarding and against any and all
liabilities, obligations, orders, decrees, judgments, liens, demands, actions, claims, losses,
damages, fines, penalties, expenses, or costs of any kind or nature whatsoever, together with fees
(including, without limitation, reasonable attorneys' fees and experts' and consultants' fees)
occurring during and caused by Seller's use and occupancy of the Property and resulting from or
in connection with the actual or claimed generation, storage, handling, transportation, use,
presence, placement, migration and/or release of Hazardous Materials at, on, in, beneath or from
the Property.
14. WAIVER AND RELEASE.
Buyer hereby agrees that, concurrent with the Close of Escrow, Buyer shall waive,
release, and fully discharge the Seller/City & Seller/City Personnel from any claims, demands, or
causes of action that Buyer has against the Seller/City & Seller/City Personnel, or any of them,
regarding the physical or environmental condition of the Property, including, but not limited to,
claims arising out of or having any relation to the presence or absence of any Hazardous
Materials in, on, under, or within the Property, any Endangered Species or protected habitat or
natural resources on the Property, and any other adverse physical condition, including, but not
limited to the existence and inadequacy of sewage and other utility systems, characteristics of
soils, geology, existence or absence of ground water, existing zoning or other legal status of the
Property, habitability, any structural deficiency, merchantability, fitness, suitability or adequacy
of the Property or compliance of the Property with applicable laws, ordinances, codes or other
governmental regulations that do or could impair the value of the Property. Notwithstanding
anything herein to the contrary, the releases provided herein shall not apply to any matters
arising out of, or related to, any fraud or intentional misrepresentations or warranties made by
Seller in this Agreement.
The releases provided in this Section 14 are notwithstanding California Civil Code
§ 1542, or any comparable, applicable provision, which reads as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
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r) . - /,
AW , 0
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
The releases provided in this Section 14 constitute releases with respect to any and all
rights, claims or actions pursuant to statutory or common law or equity of whatever kind or
nature, whether known, unknown, foreseen, unforeseen, patent or latent, which Buyer may now
or in the future have against any of the Seller/City & Seller/City Personnel.
Buyer's Initials
15. CONSTRUCTION OF PUBLIC IMPROVEMENTS.
Buyer agrees and acknowledges that at the time Buyer develops the Property Buyer shall
be responsible for developing all of the public improvements required on the Property beyond
the curbs constructed along Dune Palms Road and Highway 111, including, but not limited to, all
meandering sidewalks and parkway landscaping, all in accordance with City standards and
requirements.
1.6. TREE REMOVAL; GRADING.
Buyer acknowledges and agrees that (i) Seller has entered, or intends to enter, into a
Purchase Agreement with Sam's Real Estate Business Trust ("Sam's") pursuant to which Seller
will convey to Sam's certain real property located adjacent and to the south of the Property (the
"Sam's Purchase Agreement"); and (ii) for a period of twelve (12) months after the closing under
the Sam's Purchase Agreement, regardless of when or whether the Closing hereunder occurs,
Sam's shall be permitted to enter upon the Property for purposes of removing the trees located
thereon and grading the Property in accordance with the terms of Section 14G of the Sam's
Purchase Agreement. Seller represents and warrants that the Sam's Purchase Agreement shall
obligate Sam's to perform any such tree removal and grading activities in accordance with all
applicable laws and governmental regulations, including, but not limited to, the requirement that
Sam's obtain a grading permit from the City of La Quinta.
17. PAYMENT OF PREVAILING WAGES.
Although the parties believe that California law does not require the payment of
prevailing wages or the hiring of apprentices for Buyer's development of the Property because
the Property is being sold at its fair market price and the Seller is not providing any subsidies
hereunder, Buyer shall be solely responsible for determining and effectuating -compliance with
California Health and Safety Code Sections 33423 through 33426, or Chapter 1 of Part 7 of the
California Labor Code (commencing with section 1720), and all applicable statutory and
regulatory provisions related thereto (collectively, the "Wage Laws"), and nothing herein
constitutes a representation or warranty by Seller that Buyer's development of the Property is not
sub. ect to the Wage Laws and Buyer expressly waives any right of reimbursement for any
"increased costs" under California Labor Code Section 1781 or otherwise with respect to the
Property or Buyer's development thereof. Buyer shall indemnify, defend, and hold Seller and the
City of La Quinta and their respective officers, employees, members, representatives, contractors
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and agents, harmless, including litigation costs and reasonable attorneys' fees, with counsel
reasonably acceptable to Seller and City, from and against any and all claims pertaining to the
payment of wages for the Property or Buyer's development thereof.
18. CONDEMNATION.
In the event that, prior to the Close of Escrow, any governmental entity shall commence
any proceedings of or leading to eminent domain or similar type proceedings to take all or any
portion of the Property, Buyer or Seller shall promptly meet and confer in good faith to evaluate
the effect of such action on the purposes of this Agreement and following such meeting either
Buyer or Seller may terminate this Agreement.
19. MISCELLANEOUS.
19.1 Assignment. This Agreement shall be binding upon and shall inure to the benefit
of Buyer and Seller and their respective heirs, personal representatives, successors and assigns.
Neither party to this Agreement may assign this Agreement or any interest or right hereunder or
under the Escrow without the prior written consent and approval of the other party, which
consent and approval may be withheld in the sole and absolute discretion of either party;
provided, however, that Seller may assign this Agreement to the City of La Quinta without
Buyer's consent. No provision of this Agreement is intended nor shall in any way be construed
to benefit any party not a signatory hereto or to create a third party beneficiary relationship;
provided, however, that notwithstanding the foregoing, the City shall be an express third party
beneficiary with respect to the indemnities and other matters set forth in this Agreement which
specifically and expressly run to the City's benefit.
19.2 Attorney's Fees. In the event of any action between Buyer and Seller seeking
enforcement of any of the terms and conditions to this Agreement or the Escrow or otherwise in
connection with the Property, the prevailing party in such action shall be awarded, in addition to
damages, injunctive or other relief, its reasonable costs and expenses, including without
limitation its expert witness fees and reasonable attorney's fees.
19.3 Notices. All notices under this Agreement shall be effective (i) upon personal
delivery, (ii) via overnight courier service provided the courier provides a written receipt of the
time and date of delivery; (iii) via facsimile so long as the sender receives confirmation of
successful transmission from the sending machine; or (iv) three (3) business days after deposit in
the United States mail, registered, certified, postage fully prepaid and addressed to the respective
parties as set forth below or as to such other address as the parties may from time to time
designate in writing:
To Seller: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
Facsimile No.: (760) 777-7101
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Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92628-1950
Attn: M. Katherine Jenson, Esq.
Facsimile No.: (714) 546-9035
To Buyer: Stamko Development Co. LP
2205 N. Poinsettia Avenue
Manhattan Beach, CA 90366
Attn: Chris Clarke
Facsimile No.: (760) 564-8728
Copy to: Cox, Castle & Nicholson
19800 MacArthur Boulevard, Ste. 500
Irvine, CA 92612-2435
Attn: Stathi G. Marcopulos, Esq.
Facsimile No.: (949) 476-0256
19.4 Fair Meaning. This Agreement shall be construed according to its fair meaning
and as if prepared by both parties hereto.
19.5 Headings. The headings at the beginning of each numbered Section of this
Agreement are solely for the convenience of the parties hereto and are not a part of this
Agreement.
19.6 Choice of Laws; Litigation Matters. This Agreement shall be governed by the
internal laws of the State of California and any question arising hereunder shall be construed or
determined according to such law. The Municipal and Superior Courts of the State of California
in and for the County of Riverside, or such other appropriate court in such county, shall have
exclusive jurisdiction of any litigation between the parties concerning this Agreement. Service
of process on Seller shall be made in accordance with California law. Service of process on
Buyer shall be made in any manner permitted by California law and shall be effective whether
served inside or outside California.
19.7 Nonliability of Seller Officials. No officer, official, member, employee, agent, or
representatives of Seller shall be liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
19.8 Gender; Number. As used in this Agreement, masculine, feminine, and neuter
gender and the singular or plural number shall be deemed to include the others wherever and
whenever the context so dictates.
19.9 Survival. This Agreement and all covenants to be performed after the Closing,
and, except as otherwise set forth herein, all representations and warranties contained herein
shall survive the Closing Date and shall remain a binding contract between the parties hereto.
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19.10 Time for Performance. In the event the time for performance of an obligation
hereunder falls on a weekend, a holiday, or on a day on which the City of La Quinta is closed,
performance of that obligation shall be due on the next business day on which the City of La
Quinta is open.
19.11 Time of Essence. Time is of the essence in this Agreement and in each and every
term and provision hereof, it being understood that the parties hereto have specifically negotiated
the dates for the completion of each obligation herein.
1.9.12 Waiver or Modification. A waiver of a provision hereof, or modification of any
provision herein contained, shall be effective only if said waiver or modification is in writing,
and signed by both Buyer and Seller. No waiver of any breach or default by any party hereto
shall be considered to be a waiver of any breach or default unless expressly provided herein or in
the waiver.
19.13 Broker's Fees. Seller and Buyer represent and warrant to the other that neither
Buyer nor Seller has employed any broker and/or finder to represent its interest in this
transaction. Each party agrees to indemnify and hold the other free and harmless from and
against any and all liability, loss, cost, or expense (including court costs and reasonable
attorney's fees) in any manner connected with a claim asserted by any individual or entity for
any commission or finder's fee in connection with the conveyance of the Property arising out of
agreements by the indemnifying party to pay any commission or finder's fee.
19.14 Duplicate Originals. This Agreement may be executed in any number of
duplicate originals, all of which shall be of equal legal force and effect.
19.15 Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person, entity, or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant, or
condition to persons, entities, or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
19.16 Exhibits. The following exhibits are attached hereto and incorporated herein by
this reference:
Exhibit "A" Legal Description of Property
Exhibit `B" Grant Deed
Exhibit "C" Non -Foreign Affidavit
19.17 Covenants of Seller. Seller agrees that during the period between the Effective
Date of this Agreement and the Closing Date:
(a) Except as provided in Section 16 hereof, Seller shall maintain the Property
in not less than the state of repair as that existing on the Effective Date (excepting ordinary wear
and tear);
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(b) Except for the entry permitted to Sam's pursuant to Section 16 hereof,
Seller shall not convey, grant, lease, assign, mortgage, hypothecate, encumber, or otherwise
transfer (on or off record) the Property or any interest therein;
(c) Subject to the rights of Sam's to enter onto the Property for purposes of
removing trees and performing grading activities pursuant to Section 16 hereof, Seller shall not
alter the physical condition of the.Property or introduce or release, or permit the introduction or
release, of any Hazardous Material in, from, under, or on the Property;
(d) Prior to Closing, Seller shall provide written notice to Buyer of any
actions that it or the City of La Quinta has agendized for action that is inconsistent with the
purposes of this Agreement and Buyer's intended development on the Property; and
(e) Prior to Closing, Seller shall maintain Seller's existing insurance on the
Property.
19.18 Corporate Authority. The person(s) executing this Agreement on behalf of each
of the parties hereto represent and warrant that (i) such party is duly organized and existing, (ii)
they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so
executing this Agreement such party is formally bound to the provisions of this Agreement, and
(iv) the entering into this Agreement does not violate any provision of any other agreement to
which such party is bound.
19.19 Covenant Against Discrimination. Buyer covenants that in its performance of this
Agreement it shall not discriminate against any person or group of persons on account of any
impermissible classification including but not limited to race, color, creed, gender, religion,
marital status, national origin, or ancestry.
19.20 Entire Agreement; Amendment. Except as set forth above, this Agreement and
the exhibits incorporated herein contain the entire agreement of Buyer and Seller with respect to
the matters contained herein, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions of this Agreement may be amended or
modified in any manner whatsoever except by an agreement in writing signed by duly authorized
officers or representatives of each of the parties hereto.
[END -- SIGNATURE PAGE FOLLOWS]
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!'1
IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has read this
Agreement, understands it, and hereby executes this Agreement to be effective as of the day and
year first written above.
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
wo
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Agency Counsel
"Buyer"
STAMKO DEVELOPMENT CO. LP,
a California limited partnership
0
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Name:
Its:
Stewart Title Company agrees to act as Escrow Holder in accordance with the terms of this
Agreement.
STEWART TITLE COMPANY
Lo
Name:
Its:
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r)
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[To be inserted]
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ry,
EXHIBIT `B"
FORM OF GRANT DEED
[SEE FOLLOWING PAGES]
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Recording Requested By and
When Recorded Return to:
Stamko Development Co. LP
78-060 Calle Estado
La Quinta, CA 92753
Attn: Christine F. Clarke
MAIL TAX STATEMENTS TO:
Stamko Development Co. LP
78-060 Calle Estado
La Quinta, CA 92753
Attn: Christine F. Clarke
GRANT DEED
SPACE ABOVE THIS LINE FOR RECORDER'S USE
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the
LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, organized
and existing under the California Community Redevelopment Law (Health & Safety Code
Section 33000 et seq.) (the "Grantor"), hereby grants to STAMKO DEVELOPMENT CO, LP,
a California limited partnership ("Grantee"), that certain real property ("Property") located in
the City of La Quinta, County of Riverside, State of California, described in the legal description
attached hereto as Attachment No. 1 and incorporated herein by this reference, subject to all
matters of record, and further subject to the following:
A. Conveyance in Accordance With Redevelopment Plan. The Property is conveyed
in accordance with and subject to the Redevelopment Plan for Project Area No. 2
("Redevelopment Plan"), a copy of which is on file with the City Clerk of the City of La
Quinta, California. All uses on the Property shall conform to the uses permitted by the
Redevelopment Plan. The foregoing shall remain in effect until the expiration of the
Redevelopment Plan.
B. Nondiscrimination. Grantee, on behalf of itself and its successors and assigns to
all or any portion of the Property, covenants and agrees as follows:
1. There shall be no discrimination against, or segregation of, any persons, or
group of persons, on account of race, color, creed, religion, sex, marital status, ancestry, or
national origin in the sale, lease, or rental or in the use, occupancy, or enjoyment of the Property,
nor shall the grantee 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 or any portion thereof, The foregoing covenants shall run with the land and shall
remain in effect in perpetuity.
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2. The grantee shall refrain from restricting the rental, sale, or lease of any
portion of the Property, or contracts relating to the Property, on the basis of race, color, creed,
religion, sex, marital status, age, 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 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, age, ancestry, or national origin in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the land herein conveyed, nor shall
the grantee itself, or any persons 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 land
herein conveyed. The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for itself, its heirs,
executors, administrators, and assigns, and all persons claiming under or through it, 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, age, ancestry, or national origin in the leasing, subleasing,
transferring, use, occupancy, tenure, or enjoyment of the land herein leased, nor shall the lessee
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, sublessees, subtenants, or vendees in the land herein leased."'
C. In contracts pertaining to the realty: "There shall be no
discrimination against or segregation of any persons or group of persons on account of race,
color, creed, religion, sex, marital status, age, ancestry, or national origin in the sale, lease,
transfer, use, occupancy, tenure, or enjoyment of land, nor shall the transferee 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 land."
The foregoing nondiscrimination covenants shall remain in effect in perpetuity.
C. Covenants Run With The Land. All covenants contained in this Grant Deed shall
be covenants running with the land.
D. Covenants for Benefit of Grantor. All covenants set forth in this Grant Deed,
without regard to technical classification or designation, shall be binding for the benefit of the
Grantor, and such covenants shall run in favor of Grantor for the entire period during which such
covenants shall be in force and effect, without regard to whether the Grantor is or remains an
owner of any land or interest therein to which such covenants relate. Grantor, 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 equity or other property proceedings to enforce the curing of such
breach.
882/015610-0079
582617.03 a03/10/05
"Grantor"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
�0
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Agency Counsel
Executive Director
"Grantee"
STAMKO DEVELOPMENT CO. LP, a
California limited partnership
By: _
Name:
Its:
882/015610-0079
582617.03 a03/10/05
STATE OF CALIFORNIA )
ss:
COUNTY OF )
On , before me, the undersigned, a Notary
Public in and for said County and State, 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, the undersigned, a Notary
Public in and for said County and State, 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.
[SEAL]
Notary Public
882/015610-0079
582617.03 a03/10/05 yy
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF PROPERTY
[TO BE INSERTED]
882/015610-0079 Attachment 1 to Grant Deed
582617.03 a03/10/05
v
EXHIBIT "C"
AFFIDAVIT OF NON -FOREIGN ENTITY
TO: STAMKO DEVELOPMENT CO. LP ("Buyer")
The Internal Revenue Code of 1954 ("Code") (26 U.S.C. Sections 1445, 7701) provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon transfer of that certain U.S.
real property interest described in Exhibit "A" to the Agreement for Purchase and Sale and
Escrow Instructions dated . , 2005, and incorporated herein by reference
("Property"), that the undersigned ("Seller") hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as
those terms are defined in the Internal Revenue Code and Income Tax Regulations); and
2. The U.S. taxpayer identification number for Seller is 95-3740431; and
3. The address for mailing purposes of Seller is: 78-495 Calle Tampico, La Quinta,
California 92253; and
4. Seller understands that this certification may be disclosed to the Internal Revenue Service
by Buyer and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalties of perjury, I declare that I have examined this Certification and to the best of my
knowledge and belief, it is true, correct, and complete, and I further declare that I have authority
to sign this document on behalf of Seller.
Dated: , 2005 LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
M
882/015610-0079
582617.03 a03/10/05
Thomas Genovese, Executive Director
TABLE OF CONTENTS
Page
1
PURCHASE PRICE.........................................................................................................1
1.1 Amount..........................................................................
.......................................
1.2 Payment of Purchase Price....................................................................................1
2.
ESCROW...................................................2
.......................................................................
2.1 Opening of Escrow...............................................................................................2
2.2 Escrow Instructions...............................................................................................2
3.
DUE DILIGENCE............................................................................................................2
3.1 Due Diligence.......................................................................................................2
4.
CLOSE OF ESCROW......................................................................................................5
4.1 Close of Escrow; Closing Date.............................................................................
5
4.2 Recordation; Release of Funds and Documents...................................................6
5.
DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.............6
5.1 Buyer's Obligations..............................................................................................
6
5.2 Seller's Obligations...............................................................................................6
6.
TITLE INSURANCE POLICY........................................................................................7
6.1 Title Policy....................................................................................................
7
6.2 Payment for Title Policy.......................................................................................
7
7.
REAL PROPERTY TAXES.............................................................................................
7
8.
CONDITIONS PRECEDENT TO CLOSING.................................................................7
8.1 Conditions Precedent to Buyer's Obligations.......................................................7
8.2 Conditions Precedent to Seller's Obligations.......................................................
8
9.
POSSESSION...................................................................................................................9
10.
ALLOCATION OF COSTS.............................................................................................9
10.1 Buyer's Costs........................................................................................................
9
10.2 Seller's Costs........................................................................................................9
11.
REMEDIES.....................................................................................................................10
11.1 Default by Seller.................................................................................................10
11.2 Default by Buyer.......................................................................I..........................10
882/015610-0079
582617.03 a03/10/05
Page
12.
"AS-IS"...........................................................................................................................10
13.
INDEMNITY..................................................................................................................12
14.
WAIVER AND RELEASE............................................................................................12
15.
CONSTRUCTION OF PUBLIC IMPROVEMENTS....................................................13
16.
TREE REMOVAL; GRADING.....................................................................................13
17.
PAYMENT OF PREVAILING WAGES.......................................................................13
18.
CONDEMNATION........................................................................................................14
19.
MISCELLANEOUS.......................................................................................................14
19.1 Assignment.........................................................................................................14
19.2 Attorney's Fees...................................................................................................14
19.3 Notices................................................................................................................14
19.4 Fair Meaning
15
19.5 Headings............................................................................................................
19.6 Choice of Laws; Litigation Matters....................................................................15
19.7 Nonliability of Seller Officials............................................................................15
19.8 Gender; Number..................................................................................................15
19.9 Survival...............................................................................................................15
19.10 Time for Performance.......................................................................................16
19.11 Time of Essence..................................................................................................16
19.12 Waiver or Modification.......................................................................................16
19.13 Broker's Fees......................................................................................................16
19.14 Duplicate Originals.............................................................................................16
19.15 Severability.........................................................................................................16
19.16 Exhibits...............................................................................................................16
19.17 Covenants of Seller.............................................................................................16
19.18 Corporate Authority............................................................................................17
19.19 Covenant Against Discrimination.......................................................................17
19.20 Entire Agreement; Amendment..........................................................................17
EXHIBITS
Exhibit A Legal Description of the Property
Exhibit B Form of Grant Deed
Exhibit C Form of Affidavit of Non -Foreign Entity
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