2005 DDC Desert Development, Inc - SilverRock - Exclusive Negotiation AgrEXCLUSIVE NEGOTIATION AGREEMENT
THIS EXCLUSIVE NEGOTIATION AGREEMENT (the "Agreement") is entered in
this day of MAor;/
rch, 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
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issues related to development and preparing preliminary schematic designs for the Project;
(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.
II. 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
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terminated or extended pursuant to the terms of this Agreement. This Agreement shall
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.
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During the First Due Diligence Period, the Agency and Developer, as applicable, shall
conduct their respective due diligence activities, including but not limited to:
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
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his or her sole and absolute discretion, extends the time for the First Due Diligence Period
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
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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
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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
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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
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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 Approval 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
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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.
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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
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assignment the Agency has approved shall not be effective unless and until the Developer
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
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must be instituted and maintained in the Superior Court of the County of Riverside, State of
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,
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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.
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 attorneys 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 "attorneys fees"
shall include attorneys fees incurred related to the foregoing described litigation and for any
appeal, and in addition a party entitled to attorneys 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.
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E. Termination Ri is
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
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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) 546-903 5
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
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Notices personally delivered or delivered by document delivery service shall be deemed
effective upon receipt. Notices mailed in the manner provided above shall be deemed effective
on the second business day following deposit in the United States mail. Such written notices,
demands, and communications shall be sent in the same manner to such other addresses as either
party may from time to time designate by mail.
H. Nonliability of 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
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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
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.
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M. Successors
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.
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R. Agency's Use of the Site
Developer acknowledges that during the Negotiation Period the Agency shall have the
continued right to the full and unfettered use of the Site, including, but not limited to, (i) the right
to enter into temporary lease agreements, use agreements, licenses, and other similar agreements,
and (ii) the right to use all portions of the Site, including the clubhouse; provided, however, that
Agency's use of the Site as described in (i) and (ii) above (except for Agency's use of the
clubhouse) shall not unreasonably interfere with Developer's due diligence activities hereunder,
as described in Paragraph B of Part II hereof.
S. 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.
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Dated: LA QUINTA REDEVELOPMENT AGENCY
0 X1_
By:
Esl
xecutive Director
ATTEST:
By:
�.. June Gre k, Secretary
APPROVED AS TO FORM:
RUTAN &TUCKER, LLP
Agency ounsel
Dated: tz
DDC DESERT DEVELOPMENT, INC., a
California corpora 'on
By:
Its: <%
882/015610-0084 -21-
585049.07 a03/24/05
EXHIBIT I
DEPICTION OF THE SITE
[To be inserted]
882/015610-0084 _22_
585049.07 a03/24/05
The Citrus"
H
Master Plan
SilverRock Resort
Multi use Trail
Boutiqu'e'
L Hotel
04 AV VA- I
EXHIBIT 2
EARLY ENTRY AGREEMENT
882/015610-0084 _23 -
585049.07 a03/24/05
EARLY ENTRY AGREEMENT
This Early Entry Agreement ("Agreement") is entered into as of , 2005, by
and among the LA QUINTA REDEVELOPMENT AGENCY, a public ody, 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.
882/015610-0084
585258.04 a03/24/05 PAGE 1 OF 7
2. Remit 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
882/015610-0084
585258.04 a03/24/05 PAGE 2 OF 7
(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.
882/015610-0084
585258.04 a03/24/05 PAGE 3 OF 7
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
882/015610-0084 PAGE 4 OF 7
585258.04 a03/24/05
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.
Agreement.
8.9 Time of Essence. Time is of the essence in the performance of the
[Signatures on next page]
882/015610-0084
585258.04 a03/24/05 PAGE 5 OF 7
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
wo
ATTEST:
June Greek, Secretary
APPROVED AS TO FORM:
RUTAN &TUCKER, LLP
Agency Counsel
Name:
Its: Executive Director
882/015610-0084 PAGE 6 OF 7
585258.04 a03/24/05
EXHIBIT "A
TO EARLY ENTRY AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
[TO BE INSERTED]
882/015610-0084
585258.04 a03/24/05 PAGE 7 OF 7
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:
RFCTTAU.9
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.
882/015610-0084
585258.04 a03/24/05 PAGE 1 OF 7
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
882/015610-0084
585258.04 a03/24/05 PAGE 2 OF 7
(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.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement.
882/015610-0084
585258.04 a03/24/05 PAGE 3 OF 7
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
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
882/015610-0084
585258.04 a03/24/05 PAGE 4 OF 7
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.
Agreement.
8.9 Time of Essence. Time is of the essence in the performance of the
[Signatures on next page]
882/015610-0084
585258.04 a03/24/05 PAGE 5 OF 7
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
G
By:
Name:
Its:
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY,
a pu bod , corporate and poli is
Name:
Its: Executive Director
ATTEST:
By:
�-- June Gree , Secretary
APPROVED AS TO FORM:
RUTAN &TUCKER, LLP
ZcyC nsel ===7Z
882/015610-0084
585258.04 a03/24/05 PAGE 6 OF 7
EXHIBIT "A"
TO EARLY ENTRY AGREEMENT
DEPICTION OF PROPERTY
[TO BE INSERTED]
882/015610-0084
585258.04 a03/24/05 PAGE 7 OF 7
Ibe C► rm*
E
Master Plan
SilverRock Resort
Mufti use Trail
r
AMENDMENT NO. 1 TO EXCLUSIVE NEGOTIATION AGREEMENT
THIS AMENDMENT NO. 1 TO EXCLUSIVE NEGOTIATION AGREEMENT
("Amendment No. 1") is made and entered into as of February , 2006 by and between LA
QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and
DDC DESERT DEVELOPMENT, INC., a California corporation ("Developer").
RECITALS:
A. On or about April 4, 2005, the Agency and Developer entered into that certain
Exclusive Negotiation Agreement (the "ENA"), pursuant to which Agency and Developer
agreed to initiate exclusive negotiations for up to one hundred eighty (180) days concerning the
possible sale by Agency to Developer of certain real property owned in fee by the Agency for the
Developer's subsequent development thereon of a commercial project, all as more fully
described in the ENA.
B. Pursuant to authority granted in the ENA, the Agency's Executive Director has
extended the "Negotiation Period" and, hence, the "End Date" (as those terms are defined in the
ENA), on three (3) separate occasions, for a cumulative total of one hundred twenty (120) days,
until January 31, 2006.
C. The Developer has now completed all of the tasks required to be completed as
part of the "First Due Diligence Period." Developer and Agency now wish to extend the "Second
Due Diligence Period" (as that term is defined in the ENA) to provide the Developer with
additional time to complete the tasks required to be completed as part of the Second Due
Diligence Period.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by this reference, and for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
The ENA is hereby amended to extend the Second Due Diligence Period until June 30,
�►11.
2. Except as otherwise expressly provided in this Amendment No. 1, all of the terms and
conditions of the ENA shall remain in full force and effect.
3. In the event of any action between Agency and Developer seeking enforcement of any of
the terms and conditions to this Amendment No. 1, 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.
4. This Amendment No. 1 shall be construed according to its fair meaning and as if
prepared by both parties hereto.
882/015610-0084
679900.01 a02/02/06 ' 1
5. This Amendment No. 1 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 Amendment No. 1. Service of process on Agency shall be
made in accordance with California law. Service of process on Developer shall be made in any
manner permitted by California law and shall be effective whether served inside or outside
California.
6. Time is of the essence of this Amendment No. 1 and of each and every term and
provision hereof.
7. This Amendment No. 1 may be executed in counterparts, each of which, when this
Amendment No. 1 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
[End — Signature Page Follows]
882/015610-0084
679900.01 a02/02/06 -2-
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No. L understands it, and hereby executes this Amendment No. 1 to be
effective as of the day and year first written above.
Date:,, % , 2006
Date: P byW-a rH ifs , 2006
ATTEST:
June Greek, Agency Secretary
APPROVED AS TO FORM:
RUTAN T C , _LL,P
B �• y.
;I. the 'ne Jenson, A ency Counsel
"Developer"
DDC DESERT DEVELOPMENT, INC.,
a California cor oration
By:
Its: I�WZ4�e
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, rporate and 1'tic
By:
gency air
882/015610-0084
679900.01 a02/02/06 -3 -
AMENDMENT NO.2 TO EXCLUSIVE NEGOTIATION AGREEMENT
THIS AMENDMENT NO. 2 TO EXCLUSIVE NEGOTIATION AGREEMENT
("Amendment No. 2") is made and entered into as of Junes 2006 by and between the LA
QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and
DDC DESERT DEVELOPMENT, INC., a California corporation ("Developer").
RECITALS:
A. On or about April 4, 2005, the Agency and Developer entered into that certain
Exclusive Negotiation Agreement (the "Original ENA"), pursuant to which Agency and
Developer agreed to initiate exclusive negotiations for up to one hundred eighty (180) days
concerning the possible sale by Agency to Developer of certain real property owned in fee by the
Agency for the Developer's subsequent development thereon of a commercial project, all as
more fully described in the Original ENA.
B. On or about March 1, 2006, the Agency and Developer entered into that certain
Amendment No. 1 to Exclusive Negotiation Agreement ("Amendment No. I"), pursuant to
which Agency and Developer extended the "Second Due Diligence Period" (as that term is
defined in the Original ENA) until June 30, 2006, to provide the Developer with additional time
to complete the tasks required to be completed as part of the Second Due Diligence Period. The
Original ENA, as revised by Amendment No. 1, is hereinafter referred to as the "ENA."
C. Agency and Developer now wish to amend the ENA to (i) further extend the
Second Due Diligence Period, subject to the terms and conditions set forth herein, to enable the
parties additional time to conclude negotiations on the proposed development and to negotiate,
draft, and schedule for Agency Board consideration a disposition and development agreement;
and (ii) revise the Site.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by this reference, and for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
The ENA is hereby amended as follows:
1.1 to extend the Second Due Diligence Period until November 30, 2006; and
1.2 to replace the Depiction of the Site attached to the ENA as Exhibit 1 with the
Depiction of the Site attached hereto and incorporated herein as Attachment "A".
2. Except as otherwise expressly provided in this Amendment No. 2, all of the terms and
conditions of the ENA shall remain in full force and effect.
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3. In the event of any action between Agency and Developer seeking enforcement of any of
the terms and conditions to this Amendment No. 2, 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.
4. This Amendment No. 2 shall be construed according to its fair meaning and as if
prepared by both parties hereto.
5. This Amendment No. 2 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
without regard to conflicts of law. The 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 Amendment No. 2. Service of
process on Agency shall be made in accordance with California law. Service of process on
Developer shall be made in any manner permitted by California law and shall be effective
whether served inside or outside California.
6. Time is of the essence of this Amendment No. 2 and of each and every term and
provision hereof.
7. This Amendment No. 2 may be executed in counterparts, each of which, when this
Amendment No. 2 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
[End — Signature Page Follows]
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IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No. 2, understands it, and hereby executes this Amendment No. 2 to be
effective as of the day and year first written above.
Date: ��,,,,� ?� , 2006
Date: Ju..V% e- 43 , 2006
ATTEST:
Ju , Agency Secretary
APPROVED AS TO FORM:
RUTAN C ER, P
- L,
By:
M. Katherine Jenson, ency Counsel
"Developer"
DDC DESERT DEVELOPMENT, INC.,
a California corporation
By:
Its:
"Agency"
LA QUINTA REERMLO
a public body, c Porate and
AGENCY,
882/015610-0084
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ATTACHMENT "A"
DEPICTION OF THE SITE
[To be inserted]
882/015610-0084
719238.03 a06/20/06 -4-
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AMENDMENT NO.3 TO EXCLUSIVE NEGOTIATION AGREEMENT
THIS AMENDMENT NO. 3 TO EXCLUSIVE NEGOTIATION AGREEMENT
("Amendment No. 3") is made and entered into as of November 5, 2006 by and
bebween the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency"), and LDD SILVERROCK, LLC., a California corporation
("Developer").
RECITALS:
A. On or about April 4, 2005, the Agency and Developer entered into that
certain Exclusive Negotiation Agreement (the "ENA"), pursuant to which Agency and
Developer agreed to initiate exclusive negotiations for up to one hundred eighty (180)
days concerning the possible sale by Agency to Developer of certain real property owned
in fee by the Agency for the Developer's subsequent development thereon of a
commercial project, all as more fully described in the ENA.
B. On or about March 1, 2006, the Agency and Developer entered into that
certain Amendment No. I to Exclusive Negotiation Agreement, pursuant to which
Agency and Developer extended the "Second Due Diligence Period" (as that term is
defined in the ENA) until June 30, 2006, to provide the Developer with additional time to
complete the tasks required to be completed as part of the Second Due Diligence Period.
C. On or about June 6, 2006, the Agency and Developer entered into that
certain Amendment No. 2 to Exclusive Negotiation Agreement, pursuant to which
Agency and Developer extended the "Second Due Diligency Period" (as that term is
defined in the ENA) until November 30, 2006, to provide the Developer with additional
time to complete the tasks required to be completed as part of the Second Due Diligence
Period.
D. Agency and Developer now wish to further extend the Second Due
Diligence Period, subject to the terms and conditions set forth herein, to enable the parties
additional time to conclude negotiations on the proposed development and to negotiate,
draft, and schedule for Agency Board consideration a disposition and development
agreement.
E. Developer has created a Limited Liability Company, LDD SilverRock,
LLC, to develop the project as described in the draft Disposition and Development
Agreement. LDD SilverRock, LLC shall be listed in all agreements as the Developer.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are
incorporated herein by this reference, and for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. The ENA is hereby amended to extend the Second Due Diligence Period until
December 31, 2006.
2. ]Except as otherwise expressly provided in this Amendment No. 3, all of the terms
and conditions of the ENA shall remain in full force and effect.
3. In the event of any action between Agency and Developer seeking enforcement of
any of the terms and conditions to this Amendment No. 3, 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.
4. This Amendment No. 3 shall be construed according to its fair meaning and as if
prepared by both parties hereto.
5. This Amendment No. 3 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 without regard to conflicts of law. The 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 Amendment No. 3. Service of process on Agency shall be made in accordance with
California law. Service of process on Developer shall be made in any manner permitted
by California law and shall be effective whether served inside or outside California.
6. Time is of the essence of this Amendment No. 3 and of each and every term and
provision hereof.
7. This Amendment No. 3 may be executed in counterparts, each of which, when
this Amendment No. 3 has been signed by all the parties hereto, shall be deemed an
original, and such counterparts shall constitute one and the same instrument.
[End — Signature Page Follows]
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it
has read this Amendment No. 3, understands it, and hereby executes this Amendment No.
3 to be effective as of the day and year first written above.
Date: ae t- , 5
/, .
2006
2006
Agency Secretary
APPROVED AS TO FORM:
RiJTAN &TUCKE LP
By: 9,- -
-
1V1. Katherine Jenso , gency Counsel
"Developer"
LDD SILVERROCK, LLC.,
a Delaware
By
It
"Agency"
company
LA QUINTA REDEVELOPMENT AGENCY,
a publie d , corporate and po tic
By -
Executive Director