2006 Nispero Properties, Inc. - Development AgreementRECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
DOC # 2006-0261303
04/ 12/20p06ge08 :0 0 60Fee : NC
Recorded in Official Records
County of Riverside
Larry W. Ward
Assessor, County Clerk & Recorder
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(Exempt from Recording Fee per Gov't Code § 6103) I
DEVELOPMENT AGREEMENT
BY AND AMONG
THE
CITY OF LA QVINTA ("CITY")
THE
LA QVINTA REDEVELOPMENT AGENCY ("AGENCY")
AND
NISPERO PROPERTIES, INC.
A CALIFORNIA CORPORATION ("DEVELOPER")
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DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of the.3/�rday of
2006 ("Reference Date"), by and among the CITY OF LA QUINTA, a
California municipal corporation and charter city (the "City"), the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency" and,
collectively with the City, the "City Entities") and NISPERO PROPERTIES, INC., a California
corporation (the "Developer"), with reference to the following:
RECITALS
A. Government Code Sections 65864-65869.5 (the "Development Agreement Act")
authorize the City to enter into a binding development agreement for the development of real
property within its jurisdiction with persons having legal or equitable interest in such real
property.
B. Pursuant to Section 65865 of the Government Code, the City has adopted its
Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing
procedures and requirements for such development agreements ("Development Agreement
Ordinance").
C. Developer owns the 0.72 acre parcel of real property ("Site") located at the
northwest corner of Avenida La Fonda and Main Street, in the City of La Quinta, County of
Riverside, State of California, which Site is legally described in Exhibit "A" attached hereto, and
which is the subject of this Agreement.
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D. Prior to the execution of this Agreement, the City approved Village Use Permit
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a No. 2005-032 (the "VUP"), subject to conditions of approval. The VUP provides planning and
CCUCU development criteria for a proposed project on the Site (the "Project"). The Project will consist
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`"' � of the development of the Site with a proposed 19, gross square foot structure intended for
general uses, including 935 square feet of space for a coffee bar; the first floor will contain
approximately 9,470 square feet of gross floor area as office and coffee bar uses and the second
floor will contain 9,963 square feet of gross floor area as general office uses. A 49-space
parking lot will occupy the remainder of the Site. The building will be generally situated on the
north portion of the Site, with the front of the building facing Avenida La Fonda. The VUP is
known as the "Development Plan".
E. The City's Municipal Code requires that a total of 68 parking stalls be provided to
service the Project. The Site is situated such that only 49 of the 68 required parking stalls are
available for the Project. The Project requires an additional 19 parking stalls. To fulfill the
remaining parking requirements for the Project, the VUP was conditioned on the Developer
entering a development agreement with the City Entities to require the Developer to pay a
parking fee in exchange for the City crediting 19 parking stalls in- the Agency -owned parking lot
(which lots is located at the northwest corner of Avenida Bermudas and Avenida Montezuma, in
the City of La Quinta, County of Riverside, State of California) which parking lot is legally
described in Exhibit "B" attached hereto (the "Agency Parking Lots") towards fulfilling the
Project's parking obligation of providing 68 parking stalls. The Agency Parking Lot is located in
close proximity to the Site and is within close walking distance of the Site. The conditions of the
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VUP further permit the Developer a one -for -one credit for any street parking spaces created on
Main Street, pursuant to the City Public Works Department's and Community Development
Director's approval of a street improvement plan conforming to City Municipal Code
requirements. In the event that on -street parking is created pursuant to an approved street
improvement plan, then the number of stalls credited from the Agency Parking Lots will be
reduced on a one -for -one basis (i.e., the 19 stalls credited will be reduced on a one -for -one basis
against street parking spaces created) and the fee will be reduced to account for the credited
street parking spaces. In the event that street parking spaces are provided then the parties shall
execute and record the Memorandum of Development Agreement Off -Site Parking Space and
Fee Reduction attached hereto as Exhibit H. The parties to this Agreement agree and
acknowledge that the Agency is entering this Agreement for the sole and exclusive purposes of
providing its consent, as provided in Section 2.4.1, to the crediting of 19 parking stalls on the
Agency Parking Lots towards the Project's parking and for no other purpose. Without limiting
the City's use of these fees, it is intended that the fees paid by the Developer shall be used to add
or provide additional parking in the future.
F. The Development Plan also requires, in addition to the fee described above, and
as consideration for the City crediting 19 parking stalls in the Agency Parking Lots towards the
Project's parking obligation, that the City and Developer enter an agreement providing that the
parking stalls located on the Site shall be available for use by the general public during hours
when the on -Site businesses are closed.
G. Consistent with Section 9.250.030 of the La Quinta Municipal Code, the parties
m desire to enter into a binding agreement for purposes of (i) setting forth a per -parking stall up -
,ow m front payment for the Developer's payment to the City of certain fees that the parties agree are
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Gn % designed to compensate the City for (A) the crediting of 19 parking stalls located in the Agency
It Parking Lot towards fulfilling the Project's parking obligation; and (B) the potential added wear
and tear on the municipal infrastructure which will result from the Development Plan and the
crediting of the parking stalls in the Agency Parking Lots; (ii) requiring the Developer and its
successors -in -interest to provide public parking on the Site; and iii granting Developer a vested
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right to develop the Site according to the Development Plan.
F. Among other purposes, this Agreement is intended to be, and shall be construed
as, a development agreement within the meaning of the Development Agreement Act. This
Agreement will eliminate uncertainty in planning for and secure the orderly development of the
Project, ensure a desirable and functional community environment, provide effective and
efficient development of public facilities, infrastructure, and services appropriate for the
development of the Project, and assure attainment of the maximum effective utilization of
resources within the City, by achieving the goals and purposes of the Development Agreement
Act. In exchange for these benefits to City, Developer desires to receive the assurance that it
v may proceed with development of the Project in accordance with the terms and conditions of this
Agreement and the Development Plan, all as more particularly set forth herein.
G. The City Council has determined that the Project and this Agreement are
consistent with the City's General Plan, including the goals and objectives thereof.
H. All actions taken by City and Agency have been duly taken in accordance with all
applicable legal requirements, including the California Environmental Quality Act (Public
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Resources Code Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public
hearings, findings, votes and other procedural matters.
I. On February 21, 2006, the City Council adopted its Ordinance No. 426 approving
this Agreement. On February 21, 2006, the Agency adopted Resolution No. RA 2006-002
approving this Agreement for the sole and exclusive purpose of consenting to the crediting of 19
parking stalls located on the Agency Parking Lots towards fulfilling the Project's parking
obligations.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
1.0 GENERAL.
l . l Term.
The term of this Agreement (the "Term") shall commence on the Effective Date hereof
and shall continue for ten (10) years thereafter, unless said term is otherwise terminated,
modified, or extended by circumstances set forth in this Agreement or by mutual consent of the
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C 1.2 Effective Date.
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This Agreement shall be effective, and the obligations of the parties hereunder shall be
effective, as of March 20, 20069 which is the date that Ordinance No. 426 takes effect ("Effective
Date").
_ 1.3 Amendment or Cancellation.
Except as expressly stated to the contrary herein, this Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided for
in Government Code Section 65867-65868 and the City's Development Agreement Ordinance.
1.4 Termination.
Unless terminated earlier, pursuant to the terms hereof, this Agreement shall
automatically terminate and be of no further effect upon the expiration of the Term of this
Agreement. Termination of this Agreement, for any reason, shall not, by itself, affect any right
or duty arising from entitlements or approvals set forth under the Development Plan, as defined
in Section 2.1, below.
1.5 Incorporation of Recitals.
The recitals are hereby incorporated into this Agreement.
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2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF
THE PROJECT.
2.1 Right to Develop.
Subject to the terms, conditions, and covenants of this Agreement, Developer's right to
develop the Project in accordance with the Development Plan (and subject to the conditions of
approval thereof (the "Conditions of Approval") which, among other conditions of approval
associated with future approvals and permits issued by the City, include but are not limited to the
conditions of approval set forth in Exhibit "C" attached hereto) shall be deemed vested upon
execution of this Agreement, which vesting shall expire upon the earlier of the following
occurrences: (a) termination of this Agreement; or (b) an uncured material default by Developer
of this Agreement. Except for the expiration set forth in clause (a) of the preceding sentence, the
expiration of the vesting right set forth in the preceding sentence shall not terminate the
obligations of Developer under this Agreement. Notwithstanding anything in this Agreement to
the contrary, the Project shall remain subject to the following, to the same extent it would
without this Agreement:
(i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
committees existing on the Effective Date of this Agreement (collectively, the "Existing
Development Regulations");
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(ii) all amendments or modifications to Existing Development Regulations
CbC after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans,
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policies, and guidelines of the City and its City Council, Planning Commission, and all other
0 City boards, commissions, and committees enacted or adopted after the Effective Date of this
Agreement (collectively, "New Laws"), except such New Laws which would prevent or
materially impair Developer's ability to develop the Project in accordance with the Development
Plan, unless such New Laws are (A) adopted by the City on a City wide -basis and applied to the
Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or
applied by the City (or, if adoption is optional, the failure to adopt or apply such non -City law or
regulation would cause the City to sustain a loss of funds or loss of access to funding or other
resources), or (C) New Laws the City reserves the right to apply under this Agreement,
including, but not limited to, Sections 2.2 and 3.3.4;
(iii) all subsequent development approvals and the conditions of approval
associated therewith, including but not limited to any further site development permits, tract or
parcel maps, and building permits;
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable, which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees are
due and payable; and
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid.
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2.2 Additional Applicable Codes and Regulations.
Notwithstanding any other provision of this Agreement, the City also reserves the right to
apply the following to the development of the Project:
2.2.1 Building, electrical, mechanical, fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the La Quinta
Municipal Code, as existing on the Effective Date of this Agreement or as may be
enacted or amended thereafter, applied to the Project in a nondiscriminatory manner.
2.2.2 In the event of fire or other casualty requiring construction of more than
fifty (50%) percent of any building previously constructed hereunder, nothing herein
shall prevent the City from applying to such reconstruction, all requirements of the City's
Building, Electrical, Mechanical, and similar building codes based upon uniform codes
adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely to the
extent applicable to all development projects in the City.
2.2.3 This Agreement shall not prevent the City from establishing any new
City fees on a City-wide basis and applied to Site in a non-discriminatory manner,
including new development impact fees, or increasing any existing City fees, including
existing development impact fees, and to apply such new or increased fees to the Project
or applicable portion thereof where such new or increased fees may be charged.
2.3 Permitted Density, Height and Use Limitations.
The permitted uses, density and intensity of use, location of uses, maximum height and
0 size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall
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-- �° be those set forth in the Development Plan and this Agreement, whichever is the strictest.
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2.4 Credit of Parking Stalls in the Agency Parking Lots.
In exchange for the full performance of the Developer's Obligations described in
Section 3, the City shall credit the Developer with 19 parking stalls in the Agency Parking Lots,
a�� which stalls shall be counted towards fulfilling the Project's parking obligations, subject to the
reduction described below in Section 2.4.2 for street parking spaces created pursuant to an
approved street improvement plan. This Agreement does not operate to create a conveyance,
hypothecation, lease, license, sale or any form of transfer of an interest in the parking spots on
public streets or the Agency Parkin Lots or an exclusive right to use parking stalls in the
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Agency Parking Lots. Developer shall have the same right to use parking spaces on the public
street and in the Agency Parking Lots as members of the general public; provided, however, that
Developer shall enforce a policy that encourages Project employees to park their automobiles at
the Agency Parking Lots.
2.4.1 Agency Consent. Subject to the obligations of Developer as provided in
this Agreement, Agency hereby consents to crediting 19 parking stalls in the Agency
Parking Lots towards fulfilling the Project's parking obligations.
2.4.2 Reduction of Credited Parking Spaces. It is contemplated that the
Developer's Site design may include the provision of street parking spaces on Main
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Street, pursuant to an approved street improvement plan. In the event that street parking
spaces are designed pursuant to a street improvement plan approved by the City Public
Works Department and Community Development Director then Developer shall receive a
one -for -one credit for any street parking spaces created. The number of stalls credited
from the Agency Parking Lots will be reduced on a one -for -one basis (i.e., the 19 stalls
credited will be reduced on a one -for -one basis against street parking spaces created) and
the fee will be reduced to account for the credited street parking spaces. In the event that
on -street parking spaces are provided on Main Street, pursuant to this Section 2.4.2 then
the parties shall execute and record the Memorandum of Development Agreement Off -
Site Parking Space and Fee Reduction attached hereto as Exhibit H. Any parking spaces
created on Main Street pursuant to the VUP and an approved street improvement plan
shall be unrestricted and available for use by the general public.
3.0 DEVELOPER'S OBLIGATIONS.
3.1 Conditions of Approval.
The Developer shall comply with the Conditions of Approval attached hereto as Exhibit
"B" as well as all other conditions of approval that have been or may be imposed. Developer
acknowledges that additional conditions of approval beyond those set forth in Exhibit "C" may
be applicable to the Project if and as associated with future Project approvals.
3.2 Acknowledgement of Satisfied Conditions.
Prior to, and as a condition precedent of, the City's issuance of any building permit for
the Project, and immediately following payment of the fees detailed in Section 3.3.2, the
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0 acknowledging the satisfaction of conditions (the "Memorandum") against the Site which, in
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such fees have been paid and that the parking obligation for the Project is fulfilled by the credit
19 parking stalls in the Agency Parking Lots or credit thereof with off -site parking; (ii)
acknowledge that any parking spaces created on Main Street pursuant to an approved street
improvement plan shall be unrestricted and available for use by the general public; and (iii)
provide for the general public's use of Site parking stalls during times when the on -Site
businesses are closed. The Memorandum shall be in a form and substance substantially similar
to that of the Memorandum attached hereto as Exhibit "D".
3.3 No Parkin on n Public Library or Senior Center Areas.
Developer agrees that it will not permit any of its employees, agents, representatives,
invitees, licensees, lessees, or employees or patrons of its lessees to park in the parking areas of
the La Quinta Public Library or the La Quinta Senior Center as depicted on Exhibit "G" attached
hereto. Developer shall take all necessary actions to ensure compliance with this condition.
Developer's breach of this Section 3.3 shall be a default under this Agreement.
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3.4 Payments to City by Developer.
3.4.1 General.
During the Term of this Agreement, Developer shall make the payments to City
described in this Section 3.4. The payments under this Section 3.4 are not the exclusive
development impact fees for the Project, and nothing in this Section 3.4 shall be construed as a
limitation on the right of the City to impose, levy, or assess the Site other development fees as
permitted by applicable law and this Agreement.
3.4.2 Developer's Payments of Up -Front Parking Fees.
Prior to, and as a condition precedent of, the issuance of any building permit for the Site,
Developer shall pay or cause to be paid to the City the sum of $12,000.00 per parking space for
each of the 19 parking stalls in the Agency Parking Lots being credited towards fulfilling the
Project's parking obligations. The total amount of fees due under this provision prior to the
issuance of any building permit for the Site shall be $228,000. This fee shall be paid in one lump
sum without deduction or offset. However, if on -street parking spaces are provided in
accordance with Section 2.4.2 above, then the fee paid pursuant to this section shall be reduced
for each street parking space provided on Main Street.
3.4.3 City Parking Fee Study; Effect on Payment of Up -Front Parking Fees.
CO0 Independent of Developer's obligations under this Section 3.3.2, the City may choose to
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0 0 development in the La Quinta Village area. If the City approves a parking fee within one year of
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{'-' 't City Council is less than $12,000 per parking stall, then the City shall, within a reasonable time
0 after the adoption of the fee by the City Council, reimburse to Developer that portion of the per
space fee that exceeds $12,000. If the fee calculated pursuant to the parking study and approved
�■ by the City Council is greater than $12,000 per parking stall, the Developer shall have no
obligation under this Development Agreement to pay the increased amount. If the City chooses
not to adopt a per -parking stall parking fee for the La Quinta Village area, the Developer shall
have no right to seek a refund of the payment described in this Section 3.3.2. The City's
obligation under this section to reimburse the Developer shall terminate within one year of the
Reference Date.
3.4.4 Other Fees and Charges.
Nothing set forth in this Agreement is intended or shall be construed to limit or restrict
the City's authority to impose its existing, or any new or increased, fees, charges, levies, or
assessments for the development of the Site, or to impose or increase, subject to the required
procedure, any taxes applicable to the Site; provided nothing set forth herein is intended or shall
be construed to limit or restrict whatever right Developer might otherwise have to challenge any
fee, charge, levy, assessment, or tax imposed. Developer shall timely pay all applicable fees,
charges, levies, assessments, and special and general taxes validly imposed in accordance with
the Constitution and laws of the State of California, including without limitation school impact
fees in accordance with Government Code §§ 65995, et seq.
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3.5 Dedications and Improvements.
Developer shall offer such dedications to the City or other applicable public agency, or
complete those public improvements in connection with the Project, as specified in the
Development Plan and Conditions of Approval.
3.6 Public Use of Site's Parkin Stalls.
Once constructed, the parking stalls located on the Site shall be available to the general
public for use at all times that on -Site businesses are closed. Developer shall not erect or
maintain entry gates, regulated access barriers or any other driveway barrier. Developer shall not
erect or place any signage on the Site prohibiting public parking during times that on -Site
businesses are closed. The parking lot on the Site shall be lighted in conformity with the La
Quinta Municipal Code between dusk and 11:00 p.m. every day of the week. Additionally, if
Developer creates any parking spaces on Main Street pursuant to the VUP and an approved street
improvement plan then such spaces shall not be restricted by Developer in any way and shall be
available for use by the general public.
3.7 Indemnification.
(a) Developer agrees to and shall indemnify, hold harmless, and defend, the City and
Agency and their respective officers, officials, members, agents, employees, and representatives
(collectively, "the Indemnified Parties"), from liability or claims for death or personal injury and
claims for property damage which may arise from the acts, errors, and/or omissions of the
Developer or its contractors, subcontractors, agents, employees or other persons acting on its
0(0 behalf in relation to the Project and/or this Agreement, except to the extent that the liability or
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paragraph, regardless of whether or not the City prepared, supplied, or approved plans or
specifications, or both, and regardless of whether or not any insurance policies are applicable.
(b) Developer agrees to and shall indemnify, hold harmless, and defend, the
_ Indemnified Parties from any challenge to the validity of this Agreement, the Memorandum , or
to the City Entities' implementation of their rights under this Agreement; the Developer shall
indemnify, hold harmless, pay all costs and provide defense for the Indemnified Parities in said
action or proceeding with counsel chosen by the City.
(c) In the event the Indemnified Parties are made a party to any action, lawsuit, or
other adversarial proceeding in any way involving claims specified in paragraphs (a) or (b)
above, Developer shall provide a defense to the Indemnified Parties, or at the Indemnified
Parties' option, reimburse the Indemnified Parties their costs of defense, including attorney's
fees, incurred in defense of such claim. The Indemnified Parties shall have the right to select
legal counsel of their choice. In addition, Developer shall be obligated to promptly pay any final
judgment or portion thereof rendered against the Indemnified Parties. The City Entities shall, at
no cost to the City Entities, cooperate with the Developer in any such defense as Developer may
reasonably request.
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4.0 CITY'S OBLIGATIONS & ACKNOWLEDGEMENTS.
4.1 Scope of Subsequent Review/Confirmation of Compliance Process.
Nothing set forth herein shall impair or interfere with the right of the City to require the
processing of building permits as required by law, pursuant to the applicable provisions of the La
Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and
Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes.
Prior to each request for a building permit, Developer shall provide City with a
Compliance Certificate ("Certificate"), in substantially the same form as that attached hereto as
Exhibit "E", which shall describe how all applicable Conditions of Approval have been fully
complied with. The Certificate shall be distributed to the relevant City departments in order. to
check the representations made by Developer on the Certificate.
4.2 Project Approvals Independent.
All approvals required for the Project which may be or have been granted, and all land
use entitlements or approvals generally which have been issued or will be issued, by the City
with respect to the Project, constitute independent actions and approvals by the City. If any
provision of this Agreement or the application of any provision of this Agreement to a particular
situation is held by a court of competent jurisdiction to be invalid or unenforceable, or if this
Agreement terminates for any reason, then such invalidity, unenforceability or termination of this
Agreement or any part hereof shall not affect the validity or effectiveness of any such Project
2 To approvals or other land use approvals and entitlements. In such cases, such approvals and
�, entitlements will remain in effect pursuant to their own terms, provisions, and the Conditions of
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0 0 Approval. It is understood by the parties to this Agreement that, pursuant to existing law, if this
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entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the
term of such approvals and entitlements.
4.3 Review for Compliance.
The City shall review Developer's compliance with the terms of this Agreement at least
once during every twelve (12) month period following the Effective Date of this Agreement, in
accordance with the City's procedures and standards for such review set forth in the City's
Development Agreement Ordinance. During such periodic review by the City, the Developer,
upon written request from City, shall be required to demonstrate, and hereby agrees to furnish,
evidence of good faith compliance with the terms hereof. The failure of the City to conduct or
complete the annual review as provided herein or in accordance with the Development
Agreement Act shall not impact the validity of this Agreement. If, at the conclusion of the
annual review provided for herein, Developer has been found in compliance with this
Agreement, the City, through the City's Community Development Director, shall, at Developer's
written request, issue a Certificate of Compliance to Developer stating that (1) this Agreement
remains in full force and effect and (2) Developer is in compliance with this Agreement. The
Certificate of Compliance shall be in recordable form, and shall contain information necessary to
communicate constructive record notice of the finding of compliance. Developer, at its option
and sole cost, may record the Certificate of Compliance.
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4.4 Satisfaction of VUP Condition.
The City hereby acknowledges and agrees that full compliance with this Agreement,
among other things, will constitute Developer's satisfaction and compliance with those portions
of Condition 55 of the Conditions of Approval for the VUP approved by the City which relate to
Developer's obligation to enter into a development agreement for the payment of parking fees
and fulfillment of parking obligations.
5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION.
5.1 Notice of Default.
In the event of failure by either party hereto substantially to perform any material term or
provision of this Agreement, the non -defaulting party shall have those rights and remedies
provided herein, provided that such non -defaulting party has first provided to the defaulting party
a written notice of default in the manner required by Section 8.1 hereof identifying with
specificity the nature of the alleged default and the manner in which said default may
satisfactorily be cured. Without limiting the scope of what is considered "material," the parties
agree that Developer's failure to perform any of the obligations contained in Section 3.0 shall be
a material default.
5.2 Cure of Default.
Upon the receipt of the notice of default, the alleged defaulting party shall promptly
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receipt of the notice of default and shall complete the cure, correction or remedy of such default
CbC : not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the
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notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied
within five (5) days [or thirty (30) days for non -monetary defaults], such party shall commence
to cure, correct, or remedy such default within such five (5) day period [or thirty (30) day period
for non -monetary defaults], and shall continuously and diligently prosecute such cure, correction
or remedy to completion.
5.3 City Remedies.
In the event of an uncured default by Developer of the terms of this Agreement, the City,
at its option, may institute legal action in law or in equity to cure, correct, or remedy such
default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement. In
no event shall the City be entitled to consequential, exemplary or punitive damages for any
Developer default. For purposes of this Agreement the term "consequential damages" shall
include, but not be limited to, potential loss of anticipated tax revenues from the Project or any
portion thereof. Furthermore, the City, in addition to, or as an alternative to, exercising the
remedies set forth in this Section 5.3, in the event of a material default by Developer, may give
notice of its intent to terminate or modify this Agreement pursuant to the City's Development
Agreement Ordinance and/or the Development Agreement Act, in which event the matter shall
be scheduled for consideration and review by the City Council in the manner set forth in the
City's Development Agreement Ordinance or the Development Agreement Act.
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5.4 Developer's Exclusive Remedies.
The parties acknowledge that the City Entities would not have entered into this
Agreement if they were to be liable in damages under, or with respect to, this Agreement or any
of the matters referred to herein including, but not limited to, the Development Plan, Conditions
of Approvals, the Existing Development Regulations or any future amendments or enactments
thereto, or the Project, except as provided in this Section. Accordingly, Developer covenants on
behalf of itself and its successors and assigns, not to sue the City Entities for damages or
monetary relief (except for attorneys' fees as provided for by Section 8.22) for any breach of this
Agreement by the City Entities or arising out of or connected with any dispute, controversy, or
issue between Developer and the City Entities regarding this Agreement or any of the matters
referred to herein including but not limited to the application, interpretation, or effect of this
Agreement, the Development Plan, the Conditions of Approval, the Existing Development
Regulations or any future amendments or enactments thereto, or any land use permits or
approvals sought in connection with the development of the Project or any component thereof, or
use of a parcel or any portion thereof, the parties agreeing that declaratory and injunctive relief,
mandate, and specific performance shall be Developer's sole and exclusive judicial remedies.
6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.
cr,
6.1 Encumbrances on the Project Site.
This Agreement shall not prevent or limit the Developer from encumbering the Site or
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"' � any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and
leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof
or interest therein, is pledged as security, and contracted for in good faith and fair value
(a "Mortgage") securing financing with respect to the construction, development, use or
operation of the Project.
6.2 Mortgage Protection.
This Agreement shall be superior and senior to the lien of any Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid,
diminish, or impair the lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Site or any
portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or
assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in
lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and
conditions of this Agreement.
6.3 Mortgagee Not Obligated.
No Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of the Developer or other affirmative covenants of Developer hereunder, or to
guarantee such performance, except that to the extent that any covenant to be performed by the
Developer is a condition to the performance of a covenant by the City, the performance thereof
shall continue to be a condition precedent to the City's performance hereunder.
2156/015610-0088
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6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
City shall, upon written request to the City, deliver to each Mortgagee a copy of any
notice of default given to Developer under the terms of this Agreement, at the same time of
sending such notice of default to Developer. The Mortgagee shall have the right, but not the
obligation, within five (5) days [or thirty (30) days for non -monetary defaults] after the receipt of
such notice from the City, to cure, correct, or remedy the default, or, for such defaults that cannot
reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non -
monetary defaults], the Mortgagee shall commence to cure, correct, or remedy the default within
such five (5) day period [or thirty (30) day period for non -monetary defaults], and shall
continuously and diligently prosecute such cure to completion. If the default is of a nature which
can only be remedied or cured by such Mortgagee upon obtaining possession of the Site, such
Mortgagee shall have the right to seek to obtain possession with diligence and continuity through
foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the
default within such time as is reasonably necessary to cure or remedy said default but in no event
more than thirty (30) days after obtaining possession. If any such default cannot, with diligence,
be remedied or cured within such thirty (30) day period, then such period shall be extended to
permit the Mortgagee to effect a cure or remedy so long as Mortgagee commences said cure or
remedy during such thirty (30) day period, and thereafter diligently pursues and completes such
cure.
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT.
7.1 Successors and Assigns.
0 Developer shall have the right to sell, transfer or assign the Site, or any portion thereof
CU 0 ° (provided that no such transfer shall violate the Subdivision Map Act, Government Code
N ~ 66410 et se to an person, partnership, joint venture, firm or corporation at an time during
(ZO�, § � q•) Y p � p p� J � Y g
the term of this Agreement; provided, however, that any such sale or transfer shall include, with
respect to the Site or the portion thereof sold or transferred, the assignment and assumption, in a
fully executed written agreement, in whole or in part, of the rights, duties and obligations of the
Developer under the terms of this Agreement. Upon such sale, transfer or assignment,
Developer shall, with respect to the Site or the portion thereof sold or transferred, be released
from any further obligations under the terms of this Agreement, provided:
(a) Developer no longer has any legal or equitable interest in the Site or the portion
thereof sold or transferred, as applicable;
(b) Developer is not, at the time of the transfer, in default under the terms of this
Agreement; and
MMMIN
(c) Developer has submitted an executed assignment and assumption agreement , in a
form set forth in Exhibit F.
2156/015610-0088
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8.0 MISCELLANEOUS.
8.1 Notices.
All notices permitted or required hereunder must be in writing and shall be effected by (i)
personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii)
reputable same -day or overnight delivery service that provides a receipt showing date and time
of delivery, addressed to the following parties, or to such other address as any party may from
time to time, designate in writing in the manner as provided herein:
To City: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: Community Development Director
To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson
To Developer: Robert Hill
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Nispero Properties, Inc.
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51-625 Desert Club Dr.
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La Quinta, CA 92253
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Telephone: 760.564.4707
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Facsimile: 760.564.4955
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Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service, and shall be deemed received on the third
day from the date it is postmarked if delivered by registered or certified mail.
8.2 Force Mai eure.
In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or failures to perform are due to
war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts
of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes,
governmental restrictions imposed or mandated by other governmental entities, governmental
restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools
necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another
acts or the failure to act of an public or overnmental agency or entity (except that acts or
party, y p g g Y Y( P
the failure to act of the City shall not excuse performance by the City) or any other causes
beyond the control or without the fault of the party claiming an extension of time to perform. An
extension of time for any such cause shall only be for the period of the enforced delay, which
2156/015610-0088 -13 -
669968.04 a02/09/06
period shall commence to run from the time of the commencement of the cause. The City and
the Developer may also extend times of performance under this Agreement in writing.
Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section
8.2 to an extension of time to perform because of past, present, or future difficulty in obtaining
suitable construction or permanent financing for the development of the Site, or because of
economic or market conditions.
8.3 Binding Effect.
This Agreement, and all of the terms and conditions hereof, shall be binding upon and
inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the
Site, and their respective assigns, heirs or successors in interest, whether or not any reference to
this Agreement is contained in the instrument by which such person acquired an interest in the
Project or the Site.
8.4 Independent Entity.
The parties acknowledge that, in entering into and performing this Agreement, each of
the Developer, the City is acting as an independent entity and not as an agent of the other in any
respect.
8.5 Agreement Not to Benefit Third Parties.
a_ This Agreement is made for the sole benefit of the parties, and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on
this Agreement, nor be deemed to be a third party beneficiary under this Agreement.
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Notwithstanding the immediately preceding sentence, the Agency shall be an intended third
party beneficiary to this Agreement.
8.6 Covenants.
The provisions of this Agreement shall constitute mutual covenants which shall run with
the land comprising the Site for the benefit thereof, and the burdens and benefits hereof shall
bind and inure to the benefit of each of the parties hereto and all successors in interest to the
parties hereto for the term of this Agreement.
8.7 Nonliability of City/Agency Officers and Employees.
No official, officer, employee, agent or representative of the City or Agency, acting in
his/her official capacity, shall be personally liable to Developer, or any successor or assign, for
any loss, costs, damage, claim, liability, or judgment, arising out of or connection to this
Agreement, or for any act or omission on the part of the City or Agency.
8.8 Covenant Against Discrimination.
Developer and City covenant and agree, for themselves and their respective successors
and assigns, that there shall be no discrimination against, or segregation of, any person or group
2156/015610-0088 -14-
669968.04 a02/09/06
or persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry, or any other impermissible classification, in the performance of this Agreement.
Developer shall comply with the Americans with Disabilities Act of 1990, as amended (42
U.S.C. §§ 12101, et seq.).
8.9 Amendment of Agreement.
This Agreement may be amended from time to time by mutual consent of the original
parties or such party to which the Developer assigns all or any portion of its interest in this
Agreement, in accordance with the provisions of the City's Development Agreement Ordinance
and Government Code Sections 65867 and 65868.
8.10 No Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the party against whom enforcement of a waiver is
sought and referring expressly to this Section. No delay or omission by either party in exercising
any right or power accruing upon non-compliance or failure to perform by the other party under
any of the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the
covenants or conditions to be performed by the other party shall be construed or deemed a
waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof.
8.11 Severability.
0 If any term, provision, covenant or condition of this Agreement is held by a court of
W a competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect, to the extent that the invalidity or
unenforceability does not impair the application of this Agreement as intended by the parties.
CU
8.12 Cooperation in Carrvina Out Agreement.
Each party shall take such actions and execute and deliver to the other all such further
instruments and documents as may be reasonably necessary to carry out this Agreement in order
to provide and secure to the other party the full and complete enjoyment of its rights and
privileges hereunder.
8.13 Estoppel Certificate.
Any party hereunder may, at any time, deliver written notice to any other party requesting
such party to certify in writing that, to the best knowledge of the certifying party, (i) this
Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement
has not been amended or modified either orally or in writing, or if so amended, identifying the
amendments, (iii) the requesting party is not in default in the performance of its obligations
under this Agreement, or if in default, describing the nature and amount of any such defaults, and
(iv) any other reasonable information requested. A party receiving a request hereunder shall
execute and return such certificate within thirty (30) days following receipt of such written
request. The City Manager, Assistant City Manager, and Community Development Director are
2156/015610-0088
669968.04 a02/09/06 -15-
each authorized to sign and deliver an estoppel certificate on behalf of the City. The City
acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.
8.14 Construction.
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 that might otherwise apply. As used in this
Agreement, and as the context may require, the singular includes the plural and vice versa, and
the masculine gender includes the feminine and vice versa.
8.15 Recordation.
This Agreement shall be recorded with the County Recorder of Riverside County at
Developer's cost, if any, within the period required by Government Code Section 65868.5.
Amendments approved by the parties, and any cancellation or termination of this Agreement,
shall be similarly recorded.
8.16 Captions and References.
The captions of the paragraphs and subparagraphs of this Agreement are solely for
convenience of reference, and shall be disregarded in the construction and interpretation of this
Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and
exhibits of this Agreement.
8.17 Time.
Time is of the essence in the performance of this Agreement and of each and every term
c,0Q
1 r- and condition hereof as to which time is an element.
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8.18 Recitals & Exhibits Incorporated; Entire Agreement.
The Recitals to this Agreement and all of the exhibits and attachments to this Agreement
are, by this reference, incorporated into this Agreement and made a part hereof. This
Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement, and this Agreement supersedes all
previous negotiations, discussions and agreements between the parties, and no parole evidence of
any prior or other agreement shall be permitted to contradict or vary the terms hereof.
8.19 Exhibits.
Exhibits "A" — "H" to which reference is made in this Agreement are deemed
appropriated herein in their entirety. Said exhibits are identified as follows:
_ A Legal Description of Site
B Legal Description of Agency Parking Lots
C Conditions of Approval
D Memorandum
E Compliance Certificate
2156/015610-0088
669968.04 a02/09/06 -16-
F General Assignment and Assumption Agreement
G Depiction of Library and Senior Center Parking Lots
H Memorandum of Development Agreement Off -Site Parking Space and Fee
Reduction
8.20 Counterpart Signature Pages.
For convenience the parties may execute and acknowledge this agreement in counterparts
and when the separate signature pages are attached hereto, shall constitute one and the same
complete Agreement.
8.21 Authority to Execute.
Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly
authorized to execute and deliver this Agreement, (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound, and (v) there is no existing or threatened litigation
or legal proceeding of which Developer is aware which could prevent Developer from entering
into or performing its obligations set forth in this Agreement.
8.22 Governing Law; Litigation Matters.
The internal laws of the State of California shall govern the interpretation and
enforcement of this Agreement without regard to conflicts of law principles. Any action at law
or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting
CU
KZO 0 CD the validity of this Agreement or any provision hereof shall be brought in the Superior Court of
co Gn � the State of California in and for the County of Riverside, or such other appropriate court in said
county, and the parties hereto waive all provisions of law providing for the filing, removal, or
change of venue to any other court. Service of process on City Entities shall be made in
accordance with California law. Service of process on Developer shall be made in any manner
permitted by California law and shall be effective whether served inside or outside of California.
In the event of any action between the parties hereto seeking enforcement of any of the terms of
this Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation
shall be awarded, in addition to such relief to which such party is entitled, its reasonable
attorney's fees, expert witness fees, and litigation costs and expenses.
8.23 No Brokers.
Each of the City and the Developer represents to the other party that it has not engaged
the services of any finder or broker and that it is not liable for any real estate commissions,
broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold
harmless the other party from such commissions or fees as are alleged to be due from the party
making such representations.
2156/015610-0088
669968.04 a02/09/06 -17-
P
IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of
the Reference Date.
"DEVELOPER"
NISPERO PROPERTIES, INC., a California
corporation
By:
Its:r 9 Ito
(7 V1 r4
By:
Its:
"CITY"
CITY OF LA QUINTA, a California municipal
co oration and charter city
By:
Y
Thomas P. Genovese
City Manager
ATTEST*"
L fah
City Clem
�} {
a
APPROVED AST
RUTAN & TUCKE LP
M. K herine Jenson
City Attorney
[Signatures continue on next page.]
2156/015610-0088 -1 g-
669968.04 a02/09/06 2006-0261303
04r' 12 2006 08 :1
19 of 60
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate d 'tic
By.
Thomas P. Genovese
Executive Director
ATTEST:
J G ek
Agency Clerk
APPROVED AS TO FORM
RUT &TUC RL$
W Kdtheri* Jenson
Agency Counsel
2156/015610-0088
66996804w209.06 -19-
II III III III II III III III I II � of m`�`asaa°:aeaa
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
On March 22, 2006 , before me, Regenia Hensley, Notary Public, personally appeared
THOMAS P. GENOVESE personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/on subscribed to the within instrument and
acknowledged to me that he/ executed the same in his/weir authorized
capacity(ies), and that by his/hefithe r 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)
ggl
RE IA HENSLEY
Notary Public / Commission # 1521423
Expiration: October 23, 2008
2156/015610-0088 zo-
`6996,a.0`'9/06 I IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII a•�e��6asa�
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
On March 31, 2006 , before me, Regenia Hensley, Notary Public, personally appeared
ROBERT M. HILL (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/aye subscribed to the within
instrument and acknowledged to me that he/ executed the same in his/ir
authorized capacity(ies), and that by his/h eir 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)
Am, AS—
REG IA HEN
SLEY
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
LOT 68 AND 77 OF DESERT CLUB TRACT UNIT #4, IN THE CITY OF LA
QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER
MAP RECORDED NOVEMBER 6, 1946 IN BOOK 21, PAGE(S) 60 OF
MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
2156/015610-0088 u,g�a�,x,„u„ � IIIIIIIIIIIIIIIIIIIIINIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII a•�a��sa;e�a
EXHIBIT "B"
LEGAL DESCRIPTION OF AGENCY PARKING LOTS
That certain real property located in the City of La Quinta, County of Riverside, State of
California, more particularly described as follows:
LOTS 71 8, 9, 10, 11, 12, 13, 14 AND 15 IN BLOCK 122 OF SANTA
CARMELITA AT VALE LA QUINTA UNIT NUMBER 14, AS SHOWN BY
MAP ON FILE IN BOOK 18 PAGES 82 AND 83 OF MAPS, RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA.
��„v„�,,.�.":".",,, 1111111111111111111111111111111111111111111111111111111 a°'��<ra��
EXHIBIT "C"
CONDITIONS OF APPROVAL FOR VILLAGE USE PERMIT 2005-032
ADOPTED FEBRUARY 7, 2006 BY CITY COUNCIL RESOLUTION 2006-013
GENERAL CONDITIONS OF APPROVAL
1. Village Use Permit 2005-032 (VUP 2005-032) shall be developed in
compliance with these conditions and all approved site plan, elevation, color,
materials and other approved exhibits submitted for this application, and any
subsequent amendment(s). In the event of any conflicts, these conditions
shall take precedence. In the event the Development Agreement referenced in
Condition #55 is not entered into, this Village Use Permit approval is null and
void.
2. This approval shall expire two years after its effective date, as determined
pursuant to Section 9.200.060.0 of the Zoning Code, unless extended
pursuant to the provisions of Section 9.200.080.
3. The applicant agrees to defend, indemnify, and hold harmless the City of La
Quinta (the "City"), its agents, officers and employees from any claim, action
or proceeding to attack, set aside, void, or annul the approval of this
development application or any application thereunder. The City shall have
sole discretion in selecting its defense counsel.
The City shall promptly notify the developer of any claim, action or proceeding
and shall cooperate fully in the defense.
4. Prior to the issuance of any permit by the City, the applicant shall obtain the
necessary permits and/or clearances from the following agencies:
• Riverside County Fire Marshal
• La Quinta Building and Safety Department
• La Quinta Public Works Department (Grading/
Improvement/Encroachment Permits)
• La Quinta Community Development Department
• Riverside County Environmental Health Department
• Desert Sands Unified School District
• Coachella Valley Water District (CVWD)
• Southern California Gas Company
• Imperial Irrigation District (IID)
• California Water Quality Control Board (CWQCB)
2156/015610-0088 II IIIII IIIIII I IIII IIII III IIIIII II 2AB2of 6e�ees66uweMa..m.�n e.%Seen
• Waste Management of the Desert
The applicant is responsible for any requirements of the permits or clearances from
those jurisdictions. If the requirements include approval of improvement plans,
applicant shall furnish proof of said approvals prior to obtaining City approval of the
plans.
5. The applicant shall comply with applicable provisions of the City's NPDES
stormwater discharge permit, Sections 8.70.010 et seq. (Stormwater
Management and Discharge Controls) and 13.24.170 (Clean Air/Clean
Water), LQMC; Riverside County Ordinance No. 457; and the State Water
Resources Control Board's Order No. 99-08-DWQ.
6. Handicap access and facilities shall be provided in accordance with Federal
(ADA), State and local requirements. Handicap accessible parking shall
generally conform to the approved exhibits for VUP 2005-032.
7. All parking area civil plans and improvements shall be developed in
accordance with the standards set forth in applicable portions of Section
9.150.080 of the Zoning Code, and these conditions, which shall take
precedence in the event of any conflicts with said Section. Any on -street
parking/street improvement plans for Main Street, if submitted, shall be
reviewed and approved by the Public Works Department, as to acceptable
design standards. Any deviation from standards as applicable under Section
9.150.080 of the Zoning Code, may be approved by the Community
Development and Public Works Departments, as part of the improvement plan
review process.
PROPERTY RIGHTS
8. Prior to issuance of any permit(s), the applicant shall acquire or confer
easements and other property rights necessary for the construction or proper
functioning of the proposed development. Conferred rights shall include
irrevocable offers to dedicate or grant access easements to the City for
emergency services and for maintenance, construction and reconstruction of
essential improvements.
9. The applicant shall offer for dedication all public street right-of-ways in
conformance with the City's General Plan, Municipal Code, applicable specific
plans, and/or as required by the City Engineer.
10. The public street right-of-way offers for dedication required for this
development include:
2156/015610-0088
2006-0261303
A. PUBLIC STREETS
1) Avenida La Fonda (Local Street, 60' ROW) — The standard 35
feet from the centerline of Avenida La Fonda for a total 60-foot
ultimate developed right of way.
11. The applicant shall offer for dedication those easements necessary for the
placement of, and access to, utility lines and structures, drainage basins,
mailbox clusters, and common areas shown on the Village Use Permit.
12. Direct vehicular access from any portion of the site with frontage along
Avenida La Fonda and Main Street is restricted, except for those access
points identified on the approved site plan, or as otherwise conditioned in
these conditions of approval.
13. The applicant shall furnish proof of easements or written permission, as
appropriate, from owners of any abutting properties on which grading,
retaining wall construction, permanent slopes, or other encroachments are to
occur.
14. The applicant shall cause no easements to be granted, or recorded, over any
portion of the subject property, between the date of approval of this Village
Use Permit and the date of final acceptance of the on -site and off -site
improvements for this Village Use Permit, unless such easements are
approved by the City Engineer.
15. Upon approval of this Village Use Permit, the applicant shall begin right-of-
way vacation of the existing remnant public right-of-way at the corner of
Avenida La Fonda and Main Street (Avenida Buena Ventura).
16. Applicant shall process a parcel merger, in order to incorporate Lots 68 and
77 into one parcel. The merger shall have been recorded prior to issuance of a
permit for the main building.
IMPROVEMENT PLANS
As used throughout these conditions of approval, professional titles such as
"engineer", "surveyor", and "architect" refer to persons currently certified or
licensed to practice their respective professions in the State of California.
2156/015610-0088
II III III II I II III III IIII II ew3006'eo6w�eeR
17. Improvement plans shall be prepared by or under the direct supervision of
qualified engineers and/or architects, as appropriate, and shall comply with
the provisions of Section 13.24.040 (Improvement Plans), LQMC.
18. The following improvement plans shall be prepared and submitted for review
and approval by the City. A separate set of plans for each line item specified
below shall be prepared. The plans shall utilize the minimum scale specified,
unless otherwise authorized by the City Engineer in writing. Plans may be
prepared at a larger scale if additional detail or plan clarity is desired.
Note: the applicant may be required to prepare other improvement plans not
listed here pursuant to improvements required by other agencies and utility
purveyors.
A. On -Site Rough Grading Plans 1 " = 30' Horizontal
B. PM 10 Plan
C. SWPPP
1 " = 40' Horizontal
1 if = 40' Horizontal
NOTE: A through C to be submitted concurrently.
D.On-Site Precise Grading Plans (Commercial Development)
ill = 30' Horizontal
Other engineered improvement plans prepared for City approval that are not
listed above shall be prepared in formats approved by the City Engineer prior
to commencing plan preparation.
On -Site Precise Grading Plans shall normally include all on -site surface
improvements including but not necessarily limited to finish grades for curbs
& gutters, sidewalks, building floor elevations, parking lot improvements and
ADA requirements for the parking lot and access to the building; and showing
the existing street improvements out to at least the center lines of adjacent
existing streets, including ADA accessibility route to surrounding buildings,
parking facilities and public streets.
19. The City maintains standard plans, details and/or construction notes for
elements of construction on the Public Works Online Engineering Library at
the City website (www.la-quinta.org). Navigate to the Public Works
Department home page and look for the Online Engineering Library hyperlink.
20. The applicant shall furnish a complete set of the AutoCAD files of all
approved improvement plans on a storage media acceptable to the City
Engineer. The files shall be saved in a standard AutoCAD format so they may
be fully retrievable through a basic AutoCAD program.
2156/015610-0088
vemwew o cam -4-
IIIIIIIIIIIIII IIII III IIII IIIII IIIIIII III a°�be sof 6ee
At the completion of construction, and prior to the final acceptance of the
improvements by the City, the applicant shall update the AutoCAD files in
order to reflect the as -built conditions.
Where the improvement plans were not produced in a standard AutoCAD
format, or a file format that can be converted to an AutoCAD format, the City
Engineer will accept raster -image files of the plans
r;RAnlNG
21. Prior to occupancy of the project site for any construction, or other purposes,
the applicant shall obtain a grading permit approved by the City Engineer.
22. To obtain an approved grading permit, the applicant shall submit and obtain
approval of all of the following:
A. A precise grading plan prepared by a qualified engineer or architect,
B. A preliminary geotechnical ("soils") report prepared by a qualified
engineer,
C. A Fugitive Dust Control Plan prepared in accordance with Chapter
6.16 (Fugitive Dust Control), LQMC.
All grading shall conform to the recommendations contained in the Preliminary
Soils Report, and shall be certified as being adequate by a soils engineer, or
by an engineering geologist.
The applicant shall furnish security, in a form acceptable to the City, and in
an amount sufficient to guarantee compliance with the approved Fugitive
Dust Control Plan provisions as submitted with its application for a grading
permit.
23. The applicant shall maintain all open graded, undeveloped land to prevent
wind and water erosion of soils. All such land shall be planted with interim
landscaping or provided with other erosion control measures as approved by
the Public Works Departments under the Fugitive Dust Control Plan.
24. Prior to issuance of the main building permit, the applicant shall provide a lot
pad certification, stamped and signed by qualified engineers or surveyor.
nRAiNAr;F
25. Nuisance water shall be retained onsite and disposed of in a manner
acceptable to the City Engineer.
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26. The applicant shall obtain the approval of the City Engineer for the location
of all utility lines within the right of way and all above -ground utility
structures including, but not limited to, traffic signal cabinets, electrical
vaults, water valves, and telephone stands, to ensure optimum placement -for
practical and aesthetic purposes.
27. Underground utilities shall be installed prior to overlying hardscape. For
installation of utilities in existing, improved streets, the applicant shall
comply with trench restoration requirements maintained or required by the
City Engineer. The applicant shall provide certified reports of all utility trench
compaction for approval of the City Engineer.
28. Prior to issuance of any building permit, the applicant shall provide evidence
to the Public Works Department, of vacation of the existing 10-foot PUE
along the common lot line of lots 68 and 77, along with any relocated
easement(s) as may be required. Any in -ground utilities shall be relocated to
the satisfaction of the purveyor of record, and the City Engineer
STREET AND TRAFFIC IMPROVEMENTS
29. The applicant shall comply with the provisions of Sections 13.24.060 (Street
Improvements), 13.24.070 (Street Design - Generally) & 13.24.100 (Access
For Individual Properties And Development), LQMC for public streets.
30. No additional street improvements are required, except for:
A. Avenida La Fonda
1) A five-foot wide sidewalk next to the curb along the property
boundary with corner improvements and curb ramp per
Standard 250 — Case A.
B. Main Street
11 A minimum five-foot wide sidewalk next to the curb along the
property boundary, to consist of enhanced design materials
(e.g. colored/stamped concrete, pavers, etc.) and to include
provision for landscaped areas. The sidewalk design shall
provide for minimum clearances of 4 feet for ADA accessibility.
It is acknowledged that the applicant may submit street
improvement plans for Main Street, to accommodate on -street
parking along the inside curve (west side), but is not required to
2156/015610-0088
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do so. Any such improvement plans shall be subject to review
and approval by the Community Development and Public Works
Departments, as specified in Condition 7. Generally, said plans
shall be based on a 4-foot curb inset to the west from existing
curb line along Main Street, for an 18-foot half -width pavement
section, as measured from centerline to gutter flow line, along
the project frontage.
PARKING LOTS AND ACCESS POINTS
31. The applicant shall conform to LQMC Chapter 9.150, relating to drive isle
width, parking stall dimensions, and parking stall marking design
requirements. Parking space markings shall be double four inch wide hairpin
stripes as specified in LQMC Chapter 9.150. Exceptions to parking lot
development standards shall be as shown on the plans and as set forth in
these Conditions, which shall take precedence.
32. The applicant shall design street pavement sections using Caltrans' design
procedure (20-year life) and site -specific data for soil strength and
anticipated traffic loading (including construction traffic). Minimum
structural sections shall be as follows (or approved equivalents for alternate
materials) :
Parking Areas 3.0" a.c./4.0" c.a.b.
33. The applicant shall submit current mix designs (less than two years old at
the time of construction) for base, asphalt concrete and Portland cement
concrete. The submittal shall include test results for all specimens used in
the mix design procedure. For mix designs over six months old, the submittal
shall include recent (less than six months old at the time of construction)
aggregate gradation test results confirming that design gradations can be
achieved in current production. The applicant shall not schedule construction
operations until mix designs are approved.
34. General access points and turning movements of traffic are limited to the
proposed access driveways on Main Street and Avenida La Fonda. All turn
movements are permitted.
35. The entry driveway throat and parking aisle shall be permitted to be
constructed as designed on the approved plans, at the depths as shown and
26 feet in width rather than the required 28 feet, as permitted under Section
9.65.030.A.3.a, in order to retain the parking space count of 49 on -site
spaces. Use of wheel stops is not permitted.
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36. A total space count of 49 parking stalls, including handicapped parking
spaces, shall be provided. A minimum of 16 spaces shall be maintained as
covered parking, to be designed and located as required under Section
9.150.080.B.5, LQMC.
37. Design and final location of the two trash enclosures shall be reviewed and
approved by Waste Management., with the written and/or stamped plan
approval to be submitted during the building plan check process. No permits
for these facilities shall be issued without said approval.
38. A minimum four -foot high screen wall shall be provided at the west property
line. The wall design shall be consistent with the materials and colors used
on the main structure, subject to review and approval by Community
Development This shall be shown on the civil and landscape plans as
submitted for plan check.
LANDSCAPING
39. On -site and off -site (streetscape) landscape, landscape lighting and irrigation
plans shall be submitted for approval by the Community Development
Department. Plans shall be in substantial conformance with the conceptual
landscaping as approved for the project by Planning Commission. When plan
checking is complete, the applicant shall obtain the signatures of CVWD and
the Riverside County Agricultural Commissioner prior to submitting for final
acceptance by the Community Development Department.
40. The Silk trees located along the west property line shall be replaced with a
non -deciduous (evergreen) variety, to be approved as part of the landscape
plan check process.
41. The Phoenix Dactylifera species (Date Palms) to be used shall be purchased
from within the Coachella Valley, per the requirement of the Riverside
County Agricultural Commissioner.
QUALITY ASSURANCE
42. The applicant shall employ construction quality -assurance measures which
meet the approval of the City Engineer.
43. The applicant shall employ or retain qualified engineers, surveyors, or other
appropriate professionals as are required to provide the expertise with which
to prepare and sign accurate record drawings, and to provide adequate
construction supervision.
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44. The applicant shall arrange for, and bear the cost of, all measurement,
sampling and testing procedures not included in the City's inspection
program but required by the City as evidence that construction materials and
methods employed comply with plans, specifications and other applicable
regulations.
45. Upon completion of construction, the applicant shall furnish the City with
reproducible record drawings of all improvement plans which were approved
by the City. Each sheet shall be clearly marked "Record Drawing," "As -Built"
or "As -Constructed" and shall be stamped and signed by the engineer or
surveyor certifying to the accuracy and completeness of the drawings. The
applicant shall have all AutoCAD or raster -image files previously submitted to
the City revised to reflect the as -built conditions.
FEES AND DEPOSITS
46. The applicant shall pay the City's established fees for plan checking and
construction inspection. Fee amounts shall be those in effect when the
applicant makes application for plan checking and permits.
47. Provisions shall be made to comply with the terms and requirements of the
City's adopted Art in Public Places program in effect at the time of issuance
of building permits.
48. Permit(s) issued under this approval shall be subject to the provisions of the
Development Impact Fee program in effect at the time said permit(s) are
issued.
49. Prior to the issuance of any building permit for the Site, the applicant shall
pay the up -front parking fees, in the manner and amount as specified in the
Development Agreement for Village Use Permit 2005-032.
FIRE PROTECTION
50. Specific fire protection requirements will be determined when final building
plans are submitted for review. Final conditions will be addressed when
building plans are submitted. A plan check fee must be paid to the Fire
Department at the time building plans are submitted.
MISCELLANEOUS
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51. The applicant shall submit a detailed project area lighting plan. Parking lot
lighting is required, and shall meet the criteria set forth in Section
9.150.080.K, LQMC. All pole -mounted light standards shall conform to
lighting standards as in effect when plans are reviewed. Under canopy
lighting for building areas shall incorporate flush lens caps or similar recessed
ceiling lighting.
The lighting plan shall be submitted for review at the time construction plan
check for the permanent building permit is made to Building and Safety.
52. A comprehensive sign program shall be submitted for review and approval by
the Planning Commission prior to establishment of any individual tenant signs
for the project. Provisions of the sign program shall be in compliance with
applicable sections of Chapter 9.160 of the Zoning Code. No signs shall be
permitted to be placed on any portion of the roof projections or balcony
railings along Main Street, and the west elevation.
53. All roof -mounted mechanical equipment must be internal to the roof design,
or screened as an integral part of the roof structure, in a manner so as not to
be visible from surrounding properties and streets. Working drawings showing
all such equipment and locations shall be submitted to the Building and Safety
Department along with the construction plan submittal for building permits.
The method and design must be approved by the Community Development
Department, prior to any issuance of the main structural building permit.
54. The building plans submitted for plan check shall incorporate the following
revisions:
A. The west elevation for the coffee shop portion of the building shall be
modified to lower the stone veneer work, and add arched windows,
and/or similar detailing, compatible with the main building.
B. Wrought iron railings used on the project shall reflect more of a hand-
crafted detailing, similar to the photo exhibit examples in the approved
plan set, as opposed to the standard appearance of railings as
represented in the architectural renderings and elevations.
C. The proposed sign monument shall be reviewed as part of the sign
program, as required by Condition 52. The monument shall be similar
in design to the photo exhibit example of the fountain, contained in
the approved plan exhibits.
55. It is understood by the Applicant that Nispero Properties, Inc, by payment of
a deposit in the amount of $5,000 on 12/21 /05, has entered into an
Agreement with the City relating to preparation and possible approval of a
Development Agreement for the purpose of clarifying the applicant's parking
RB6 026 A3
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obligations associated with development of Village Use Permit 2005-032.
This Village Use Permit shall not be effective unless and until the
Development Agreement has been approved by the City Council and
recorded; the applicant further understands that the City Council may choose
to reject entering the Development Agreement or modify its contents. While
this approval will not be effective until such time as a Development
Agreement may become effective, the time limits associated with approval of
VUP 2005-032 shall be in effect with respect to expiration, as stated under
Condition #2.
56. The permitted office and coffee bar uses shall be limited to those of a general
intensity, consistent with the parking ratios of 1 space per 250 s.f. of office
and 1 space per 150 s.f. of retail food with ancillary seating. This precludes
use of any office space as a medical office use, and retail food with ancillary
seating space for sit-down restaurant use, unless shared parking or tenant
space reductions are determined to maintain the approved parking ratios for
this building, or the Development Agreement is amended to allow payment of
per -space fees to increase any use intensity for the project.
57. Use of the coffee bar lease space may be relocated to an alternate ground
floor space, oriented toward the center of the main building proximate to the
pedestrian entrance from Main Street. Limited unreserved ancillary outdoor
seating for coffee bar patrons may be provided in the entry courtyard,
whether or not the coffee bar space is relocated.
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EXHIBIT "D"
MEMORANDUM
669968.042156/015610-0088
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RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above This Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103)
MEMORANDUM ACKNOWLEDGING SATISFACTION OF CONDITIONS
THIS MEMORANDUM ACKNOWLEDGING SATISFACTION OF CONDITIONS
("Memorandum") is made and entered into as of ("Effective Date"), by
and between NISPERO PROPERTIES, INC., a California corporation ("Developer") and the
CITY OF LA QUINTA, a California municipal corporation and charter city (the "City"), the LA
QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"
and, collectively with the City, the "City Entities"), with reference to the following Recitals.
1. Purpose: Developer owns the 0.72 acre parcel of real property ("Site") located in
the City of La Quinta, County of Riverside, State of California, which Site is legally described in
Exhibit "A" attached hereto, and which is the subject of this Memorandum. In connection with
the Site, the City approved Village Use Permit No. 2005-032 (the "VUP"), subject to conditions
of approval, which provides planning and development criteria for a project commonly known as
Sun Vista Plaza (the "Project"). The parties have entered that certain Development Agreement
0 (the "Development Agreement which agreement is referenced here and was recorded as
o � Instrument No. in Official Records of Riverside County. Third parties are referred
CUU� Q
to the Development Agreement for a full version of its contents. Capitalized terms have the
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IZO CU definition attributed to them in the Development Agreement. The purpose of this Memorandum
CU 0 is to acknowledge that such parking fees required by the Development Agreement have been
paid and that the parking obligation for the Project is fulfilled by the credit of _ parking stalls in
the Agency Parking Lots and _ on -street parking spaces pursuant to the approved street
improvement plan for Main Street parking; and to provide for the general public's use of Site
parking stalls during times when the on -Site businesses are closed. The Development
Agreement further prohibits the Developer or any person using the Site from using the La Quinta
Library or La Quinta Senior Center parking areas as parking for the Project.
2. Acknowledgement of Payment and Credit of Parking Stalls Located on the
Agency Parking Lot. In connection with the Project, the City has credited the Developer with
parking stalls in the Agency Parking Lots, and these stalls are counted towards fulfilling the
Proj ect's parking obligations to provide 68 parking stalls for the Project. In connection with this
credit, Developer has paid the City a parking fee in the amount of $12,000 for each parking stall
in the Agency Parking Lots credited towards the Project's parking obligation. This
Memorandum does not operate to create a conveyance, hypothecation, lease, license, sale or any
form of transfer of an interest in the parking spots on public streets or the Agency Parking Lots
or any exclusive right to use parking spots on public streets or parking stalls in the Agency
2156/015610-0088
669968.04 a02/09/06 1
Parking Lots. Developer shall have the same right to use parking spots on public streets and
parking spaces in the Agency Parking Lots as members of the general public; provided, however,
that Developer shall enforce a policy that encourages Project employees to park their
automobiles at the Agency Parking Lots.
3. Use of Site Parking Lot by General Public. The parking stalls located on the Site
shall be available to the general public for use at all times that on -Site businesses are closed.
Developer shall not erect or maintain entry gates, regulated access barriers or any other driveway
barrier. Developer shall not erect or place any signage on the Site prohibiting public parking
during times that on -Site businesses are closed. The parking lot on the Site shall be lighted in
conformity with the La Quinta Municipal Code between dusk and 11:00 p.m. every day of the
week. Additionally, if Developer creates any parking spaces on Main Street pursuant to the VUP
and an approved street improvement plan then such spaces shall not be restricted by Developer
in any way and shall be available for use by the general public.
4. Indemnification. The indemnification provisions contained in Section 3.7 of the
Development Agreement are incorporated herein by this reference as if reprinted in full.
5. Run with the Land; Binding on Successors and Assigns. The covenants,
conditions, reservations and restrictions herein shall run with the Site and shall be binding upon
Developer and each successive owner, lessee, licensee and other occupant of all or any portion of
the Site, and shall benefit the City and be enforceable by the City and its successors and assigns.
Every person or entity who now or hereafter owns or acquires any right, title or interest in or to
any portion of the Site is and shall be conclusively deemed to have consented and agreed to
every covenant, condition, reservation and restriction contained herein whether or not any
reference to this Memorandum is contained in the instrument by which such person or entity
acquired an interest in the Site.
6. Term; Amendment and Termination. This Memorandum may be validly
terminated, amended or modified, in whole or in part, only by recordation with the Riverside
County Recorder of a proper instrument duly executed and acknowledged by (a) City, or, as
applicable, its successors and assigns, and (b) the owner(s) of the fee interest in the portion of the
Site that is directly affected by such termination, amendment or modification.
7. Recording. This Memorandum shall be recorded on the Site described in
Exhibit "A" in the Office of the County Recorder, Riverside County, California.
8. Authority of Signatories to Bind Principals. The persons executing this
Memorandum on behalf of their respective principals represent that (i) they have been authorized
to do so and that they thereby bind the principals to the terms and conditions of this
Memorandum and (ii) their respective principals are properly and duly organized and existing
under the laws of, and permitted to do business in, the State of California.
9. Counterparts. This Memorandum may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
2156/015610-0088 -2-
669968.04 a02/09/06 2006-0261303
04/12/2006 63:00A
39 of 60
IN WITNESS WHEREOF, this Memorandum has been executed by the parties as of the
date set forth above.
"DEVELOPER"
NISPERO PROPERTIES, INC., a California
corporation
Bv:
Its:
By:
Its:
"CITY"
CITY OF LA QUINTA, a California municipal
corporation and charter city
By:
Thomas P. Genovese
City Manager
ATTEST:
June Greek
0-0 0
City Clerk
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APPROVED AS TO FORM
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RUTAN & TUCKER, LLP
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M. Katherine Jenson
City Attorney
2156/015610-0088
669968.04 a02/09/06 -3
STATE OF CALIFORNIA )
ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
2156/015610-0088 _
669968.04 a02/09/06 _4
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
LOT 68 AND 77 OF DESERT CLUB TRACT UNIT #41 IN THE CITY OF LA
QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER
MAP RECORDED NOVEMBER 6, 1946 IN BOOK 21, PAGE(S) 60 OF
MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
669968.04 nzon.ar IIIIIIIIIIIIIII����I�IIIIIIIIIIIIIIIIIIII�III�III�I�III a��0/eeaee�aen
EXHIBIT "E"
COMPLIANCE CERTIFICATE
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COMPLIANCE CERTIFICATE
(NISPERO PROPERTIES, INC. DEVELOPMENT AGREEMENT)
The undersigned, NISPERO PROPERTIES, INC., a California corporation
("Developer"), pursuant to Section 4.1 of that certain Development Agreement dated
, 2006, (the "Development Agreement"), by and among Developer, the CITY
OF LA QUINTA, a California municipal corporation and charter city (the "City") and the LA
QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"),
by its signature below hereby certifies to the City, for the City's reliance that:
1. Capitalized terms not defined herein shall have the same meaning as set forth in
the Development Agreement;
2. The undersigned is familiar with the certifications and representations set forth in
this Compliance Certificate;
3. Developer has performed and complied with its obligations under the
Development Agreement to be performed or complied with by it on or prior to the date hereof.
Developer has also performed all Conditions of Approval to be performed or complied with by it
on or prior to the date hereof. Not by way of limitation of the foregoing, the Developer warrant
and represents that: (1) the Memorandum required by Section 3.2 of the Development
Agreement has been approved by the City and recorded against the Site; (2) all payments
required pursuant to Section 3.3.2 of the Development Agreement have been paid; and (3) all
Conditions of Approval to be performed or complied with as of the date hereof have been
satisfied in the manner set forth in Schedule 1, which schedule identifies all applicable
Conditions of Approval and a description of how the condition has been satisfied.
IN WITNESS WHEREOF, this Compliance Certificate is executed effective the
day of , under penalty of perjury under the laws of California.
NISPERO PROPERTIES, INC., a California
corporation
By:
Its:
By:
Its:
2156/015610-0088
669968.04 a02/09/06
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SCHEDULE I
CONDITIONS OF APPROVAL
[DEVELOPER SHALL ATTACH A FULL AND COMPLETE LIST OF ALL
CONDITIONS OF APPROVAL THAT ARE APPLICABLE TO THE PROJECT TO
DATE AND A DESCRIPTION OF HOW EACH CONDITION OF APPROVAL HAS
BEEN SATISFIED.]
2156/015610-0088
669968.04 a02/09/06
-2-
EXHIBIT "F"
GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT
669968.04.m.w�. 'IIIIIIIIIIIIII IIIIIIIII IIII IIIIII IIIIII III IIIIII IIIIIII e�P0066�of �ee�een
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above This Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103)
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment") is
made and entered into as of ("Effective Date"), by and between
NISPERO PROPERTIES, INC., a California corporation (the "Developer" or "Assignor") and
[ASSIGNEE] ("Assignee"), with reference to the following Recitals.
Recitals
A. Assignor is the developer of 0.72 acres of real property located in the City of La
Quinta, County of Riverside, State of California (the "Site"), which is legally described in
Exhibit "A" attached here.
B. Capitalized terms not defined herein shall have the same meaning as set forth in
the Development Agreement.
0 C. Assignor, as "Developer," the City of La Quinta, a California municipal
CD z03
4 corporation ("City") and the La Quinta Redevelopment Agency, a public body, corporate and
01 � politic ("Agency"), have entered into that certain Development Agreement dated
,( , 2006 (the "Development Agreement"), for purposes of, among other things, (i)
setting forth a per -parking stall up -front payment for the Developer's payment to the City of
certain fees that the parties agree are designed to compensate the City for (A) the crediting of —
parking stalls located in the Agency Parking Lots and _ street parking spaces created pursuant
to the approved street improvement plan for Main Street, towards fulfilling the Project's parking
obligation; and (B) the potential added wear and tear on the municipal infrastructure which will
result from the Development Plan and the crediting of the parking stalls in the Agency Parking
Lots; (ii) requiring the Developer and its successors -in -interest to provide public parking on the
■� Site; and (iii) granting Developer a vested right to develop the Site according to the Development
Plan.
D. Concurrently with the Effective Date, Assignor shall have conveyed to Assignee
the Site [or the portion thereof described on Exhibit B attached hereto (the "Designated Site")].
E. In accordance with Section 7.1 of the Development Agreement, Assignor now
■� desires to assign all of its obligations and its right, title, and interest in and to the Development
2156/015610-0088
669968.04 a02/09/06 1
Agreement [as to the Designated Site] to Assignee, and Assignee desires to accept such
assignment on, and subject to, the terms and conditions set forth in this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Agreement
1. Assignment. From and after the Effective Date, Assignor hereby assigns,
conveys, transfers and delivers to Assignee all of Assignor's right, title, interest, and obligation
in, to and under the Development Agreement [as the same applies to the Designated Site], and
Assignee hereby accepts such assignment and agrees to assume performance of all terms,
covenants and conditions occurring or arising under the Development Agreement [as the same
applies to the Designated Site] from and after the date of this Assignment.
2. Assumption of Obligations. By acceptance of this Assignment, Assignee hereby
agrees to assume all of Assignor's right, title, interest and obligation in, to and under the
Development Agreement [as the same applies to the Designated Site], and Assignee agrees to
timely discharge, perform or cause to be performed and to be bound by all of the liabilities,
duties and obligations imposed in connection with the Development Agreement [as the same
applies to the Designated Site], from and after the date of this Assignment to the same extent as
if Assignee had been the original party thereto.
3. Successors and Assigns. This Assignment shall be binding upon and shall inure
to the benefit of the successors and assigns of the respective parties hereto.
4. Governing Law. This Assignment shall be governed by and construed in
0 accordance with the laws of the State of California.
coo
0 O 5. Further Assurances. The parties covenant and agree that they will execute such
CU other and further instruments and documents as are or may become necessary or convenient to
CU
effectuate and carry out this Assignment.
6. Authority of Signatories to Bind Principals. The persons executing this
Assignment on behalf of their respective principals represent that (i) they have been authorized
to do so and that they thereby bind the principals to the terms and conditions of this Assignment
and (ii) their respective principals are properly and duly organized and existing under the laws
of, and permitted to do business in, the State of California.
7. Interpretation. The paragraph headings of this Assignment are for reference and
convenience only and are not part of this Assignment. They have no effect upon the construction
or interpretation of any part hereof. The provisions of this Assignment shall be construed in a
reasonable manner to effect the purposes of the parties and of this Assignment.
8. Counterparts. This Assignment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original and all of which
counterparts taken together shall constitute but one and the same instrument.
2156/015610-0088
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. IN WITNESS WHEREOF, this Assignment has been executed by the parties as of the
date set forth above.
"Assignor"
NISPERO PROPERTIES, INC., a California
corporation
By:
Its:
By:
Its:
"Assignee"
[INSERT ASSIGNEE SIGNATURE
BLOCK]
2156/015610-0088
669968.04 a02/09/06
-3-
STATE OF CALIFORNIA )
ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
2156/015610-0088
669968.04 a02/09/06 -4-
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
LOT 68 AND 77 OF DESERT CLUB TRACT UNIT 44, IN THE CITY OF LA
QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER
MAP RECORDED NOVEMBER 6, 1946 IN BOOK 21, PAGE(S) 60 OF
MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
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EXHIBIT "G"
DEPICTION OF LIBRARY AND SENIOR CENTER PARKING AREAS
2156/015610-0088
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EXHIBIT "H"
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
Space Above This Line for Recorders use
(Exempt from Recording Fee per Gov't Code § 6103)
MEMORANDUM OF DEVELOPMENT AGREEMENT
OFF SITE PARKING AND FEE REDUCTION
THIS MEMORANDUM OF DEVELOPMENT AGREEMENT OFF SITE
PARKING AND FEE REDUCTION ("Memorandum") is made and entered into as of
("Effective Date"), by and between NISPERO PROPERTIES, INC.,
a California corporation (the "Developer") and the CITY OF LA QUINTA, a California
municipal corporation and charter city (the "City"), the LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and politic (the "Agency" and, collectively with the City,
the "City Entities"), with reference to the following Recitals.
Recitals
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A. Developer is the developer of 0.72 acres of real property located in the City of La
W Q Quinta, County of Riverside, State of California (the "Site"), which is legally described in
10 ��
Exhibit "A" attached here.
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B. Capitalized terms not defined herein shall have the same meaning as set forth in
the Development Agreement.
C. Developer and the City Entities, have entered into that certain Development
Agreement dated 2006 (the "Development Agreement"), for purposes of,
among other things, (i) setting forth a per -parking stall up -front payment for the Developer's
payment to the City of certain fees that the parties agree are designed to compensate the City for
(A) the crediting of 19 parking stalls located in the Agency Parking Lots towards fulfilling the
Project's parking obligation; and (B) the potential added wear and tear on the municipal
infrastructure which will result from the Development Plan and the crediting of the parking stalls
in the Agency Parking Lots; (ii) requiring the Developer and its successors -in -interest to provide
public parking on the Site; and (iii) granting Developer a vested right to develop the Site
according to the Development Plan.
D. The Development Agreement provided that the Developer's Site design could
include the provision of a certain number of on -street parking spaces on Main Street, pursuant to p
2156/015610-0088 _
669968.04 a02/09/06 -1
an approved street improvement plan, and that said on -street parking spaces would count on a
one -for -one basis to reduce the number of Agency Parking Lots parking spaces credited and to
reduce the fee paid to the City.
E. The City has approved a street improvement plan for Main Street that includes —
street parking spaces. Therefore, the parties now desire to record this Memorandum to evidence
the one -for -one reduction in credited Agency Parking Lots parking stalls and to reduce the fee
paid to the City accordingly.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Agreement
1. Reduction of Agency Parking_ Lots Parking Stalls Credit. (—) on -street
parking spaces have been designed pursuant to a street improvement plan for Main Street,
approved by the City Public Works Department and Community Development Director then
Developer. These spaces are hereby credited on a one -for -one basis to the
Developer's parking obligation. The number of stalls credited from the Agency Parking Lots is
hereby reduced on a one -for -one basis such that the Developer shall now be credited (_—)
parking stalls in the Agency Parking Lots towards its parking obligations. The Developer shall
be credited (_) Agency Parking Lots parking spaces.
2. Reduction of Parking Fees. The parking fee paid pursuant to Section 3.4 of the
Development Agreement is hereby reduced to account for the credited street parking spaces.
Pursuant to Section 3.4.
3. No Modification. Except as specifically provided herein, the Development
Agreement is not amended, altered or modified and remains in full force and effect.
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C to the benefit of the successors and assigns of the respective parties hereto.
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5. Governing Law. This Memorandum shall be governed by and construed in
accordance with the laws of the State of California.
8. Counterparts. This Memorandum may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which counterparts taken together shall constitute but one and the same instrument.
2156/015610-0088
669968.04 a02/09/06 2
IN WITNESS WHEREOF, this Memorandum has been executed by the parties as of the
date set forth above.
ATTEST:
June Greek
City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
"DEVELOPER"
NISPERO PROPERTIES, INC., a California
corporation
By:
Its:
By:
Its:
"CITY"
CITY OF LA QUINTA, a California municipal
corporation and charter city
Thomas P. Genovese
City Manager
[Signatures continue on next page.]
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY,
2156/015610-0088
669968.04 a02/09/06
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ATTEST:
June Greek
Agency Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
Agency Counsel
a public body, corporate and politic
Thomas P. Genovese
Executive Director
2156/015610-0088
669968.04 a02/09/06
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STATE OF CALIFORNIA )
ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss
COUNTY OF )
On before me,
personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal
Notary Public
[SEAL]
2156/015610-0088
669968.04 a02/09/06 -5-
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EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
LOT 68 AND 77 OF DESERT CLUB TRACT UNIT #4, IN THE CITY OF LA
QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS PER
MAP RECORDED NOVEMBER 6, 1946 IN BOOK 21, PAGE(S) 60 OF
MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY.
2156/015610-0088
669968.04 a02/09/06
-1-
1.0 GENERAL........................................................................................................................
1.1 Term...................................................................................................................... 3
1.2 Effective Date....................................................................................................... 3
1.3 Amendment or Cancellation................................................................................. 3
1.4 Termination...........................................................................................................3
1.5 Incorporation of Recitals....................................................................................... 3
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING
CONSTRUCTION OF THE PROJECT...........................................................................4
2.1 Right to Develop...................................................................................................4
2.2 Additional Applicable Codes and Regulations..................................................... 5
2.3 Permitted Density, Height and Use Limitations................................................... 5
2.4 Credit of Parking Stalls in the Agency Parking Lots ............................................ 5
2.4.1 Agency Consent........................................................................................ 5
2.4.2 Reduction of Credited Parking Spaces ..................................................... 5
3.0 DEVELOPER'S OBLIGATIONS.................................................................................... 6
3.1
Conditions of Approval......................................................................................... 6
3.2
Acknowledgement of Satisfied Conditions..........................................................6
3.3
No Parking on Public Library or Senior Center Areas.........................................6
3.4
Payments to City by Developer............................................................................7
3.4.1 General......................................................................................................7
3.4.2 Developer's Payments of Up -Front Parking Fees .................................... 7
3.4.3 City Parking Fee Study; Effect on Payment of Up -Front Parking
Fees........................................................................................................... 7
3.4.4 Other Fees and Charges............................................................................ 7
3.5
Dedications and Improvements............................................................................. 8
3.6
Public Use of Site's Parking Stalls....................................................................... 8
3.7
Indemnification..................................................................................................... 8
4.0 CITY'S OBLIGATIONS & ACKNOWLEDGEMENTS................................................9
4.1 Scope of Subsequent Review/Confirmation of Compliance Process...................9
4.2 Project Approvals Independent.............................................................................9
4.3 Review for Compliance........................................................................................9
4.4 Satisfaction of VUP Condition.............................................................................9
5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION....................................................10
5.1 Notice of Default.................................................................................................10
5.2 Cure of Default...................................................................................................10
5.3 City Remedies.....................................................................................................10
5.4 Developer's Exclusive Remedies....................................................................... I I
6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.................................11
6.1 Encumbrances on the Project Site.......................................................................11
6.2 Mortgage Protection............................................................................................11
6.3 Mortgagee Not Obligated...................................................................................11
6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................ I I
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT.........................................12
7.1 Successors and Assigns.......................................................................................12
8.0 MISCELLANEOUS.......................................................................................................12
8.1 Notices.................................................................................................................12
8.2 Force Majeure.....................................................................................................13
8.3 Binding Effect.....................................................................................................14
8.4 Independent Entity..............................................................................................14
8.5 Agreement Not to Benefit Third Parties.............................................................14
8.6 Covenants............................................................................................................14
8.7 Nonliability of City/Agency Officers and Employees........................................14
8.8 Covenant Against Discrimination.......................................................................14
8.9 Amendment of Agreement..................................................................................14
8.10 No Waiver...........................................................................................................15
8.11 Severability.........................................................................................................15
8.12 Cooperation in Carrying Out Agreement............................................................15
8.13 Estoppel Certificate.............................................................................................15
8.14 Construction........................................................................................................16
8.15 Recordation.........................................................................................................16
8.16 Captions and References.....................................................................................16
8.17 Time....................................................................................................................16
8.18 Recitals & Exhibits Incorporated; Entire Agreement.........................................16
8.19 Exhibits...............................................................................................................16
8.20 Counterpart Signature Pages...............................................................................16
8.21 Authority to Execute............................................................ .............................17
8.22 Governing Law; Litigation Matters....................................................................17
8.23 No Brokers..........................................................................................................17
2006-0261303
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