Testa Family/Purchase & Sale Agree Washington Property 06AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS
("Agreement') is made and entered into as of September 5, 2006 ("Effective Date") by and
between THE TESTA FAMILY LIMITED PARTNERSHIP, a California limited partnership
("Seller") and the LA QUINTA REDEVELOPMENT AGENCY, a public body corporate and
politic ("Buyer").
RECITALS:
A. Seller is the owner of approximately 15.13 acres of real property located in
unincorporated territory in the County of Riverside, State of California, which real property is
located on the east side of Washington Street south of Hidden Valley road in the Bermuda Dunes
neighborhood, is identified for assessment purposes as APN 609-040-005 and is more
particularly described in the legal description attached hereto as Exhibit "A" (the "15.13 Acre
Property").
B. Subject to the terms and conditions in this Agreement, Seller shall process a
parcel map to subdivide the 15.13 Acre Property so that two parcels are created, consisting of
(i) a 7.5 acre parcel created on the western half of the 15.13 Acre Property as more particularly
described and depicted in the legal description attached hereto as Exhibit "B" (the " Real
Property"), and (ii) the remaining portion of the 15.13 Acre Property that is not included in the
Real Property, which shall be termed the "Remainder Property."
C. Subject to the terms and conditions in this Agreement, Buyer shall apply for and
process the annexation of the Real Property into the City of La Quinta.
D. Buyer desires to purchase the Property (as that term is defined below) from Seller,
and Seller desires to sell the Property to Buyer, on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and mutual covenants
herein contained, the parties hereto agree as follows:
1. PROPERTY. Subject to all of the terms, conditions and provisions of this Agreement,
and for the consideration herein set forth, Seller hereby agrees to sell to Buyer and Buyer hereby
agrees to purchase from Seller the Real Property and Seller hereby agrees to sell and Buyer
hereby agrees to buy the following:
2156/015610-0047
709670.06 a08/15/06
1.1 Improvements. Seller's interest in and to the Improvements and all tenements,
hereditaments and appurtenances thereto, subject to the Permitted Exceptions (as that term is
defined in Section 8.1);
The Real Property and the Improvements are hereinafter collectively referred to as the
"Property."
2. PURCHASE PRICE.
2.1 Amount. The purchase price which Seller agrees to accept and Buyer agrees to
pay for the Property is the sum of FIVE MILLION FORTY-FOUR THOUSAND DOLLARS
($5,044,000.00) ("Purchase Price").
2.2 Payment of Purchase Price.
2.2.1 Within five (5) days after the "Opening of Escrow" Buyer shall deposit
with "Escrow Holder" (as those terms are defined in Section 4.1) in "Good Funds" (as used in
this Agreement, the term "Good Funds" shall mean a confirmed wire transfer of immediately
available funds, cashier's or certified check drawn on or issued by the office of a financial
institution located in Riverside County, or cash) the sum of FIFTY THOUSAND DOLLARS
($50,000.00) as a good faith deposit (the "Deposit"). The Deposit shall be placed into an interest
bearing account and all interest accruing thereon shall be for the sole benefit of the Buyer. If
Buyer elects (or is deemed to have elected) to terminate this Agreement on or before the end of
the Due Diligence Period (defined in Section 5) then Buyer shall be entitled to a full refund of
the Deposit along with all interest earned thereon, less the Release Amount (defined below) that
is actually released to Seller. Thirty (30) days after the Opening of Escrow Buyer agrees and
hereby instructs Escrow Holder to release to Seller the sum of TWENTY FIVE THOUSAND
DOLLARS ($25,000.00) from the Deposit (the "Release Amount"), which Release Amount shall
be credited against the Purchase Price and shall be nonrefundable, subject to Seller's
performance of its obligations hereunder and such other provisions of this Agreement as
expressly provide for a return of the Release Amount to Buyer. Except as provided by
Sections 5.3 (relating to payments to extend the Agreement resulting from Environmental
Documentation), 16.18 (relating to reimbursement for the Parcel Map) and 16.20 (relating to
payments to extend the Agreement resulting from annexation), the remainder of the Deposit shall
be credited against the Purchase Price and shall not be released to Seller prior to the Close of
Escrow. If Escrow does not close due to Seller's default under this Agreement or does not close
due to the failure to satisfy or waive Buyer's Conditions to Closing in Section 10.1, then the
Deposit and all interest earned thereon shall be returned to Buyer in addition to any other rights
Buyer may have in law or in equity.
2.2.2 On or before 5:00 p.m. on the business day preceding the "Closing Date"
(as that term is defined in Section 6.1) or such earlier time as required by "Escrow Holder" in
order to close "Escrow" (as those terms are defined in Section 4.1) on the Closing Date, Buyer
shall deposit with Escrow Holder in Good Funds the Purchase Price, less the Deposit, and such
additional funds as may be required to meet Buyer's portion of closing costs as herewith
provided.
2156/015610-0047
709670.06 a08/15/06 -2-
3. Intentionally Deleted.
4. ESCROW.
4.1 Opening of Escrow. Closing of the sale of the Property shall take place through
an escrow ("Escrow") to be established within three (3) business days after the execution of this
Agreement by the parties hereto with Four Seasons Escrow, Inc. ("Escrow Holder"), at its office
located at 47-350 Washington Avenue, Suite 101, La Quinta, California 92253. The opening of
the Escrow (the "Opening of Escrow") shall be deemed to be the date that a fully executed copy
of this Agreement is delivered to the Escrow Holder. Escrow Holder is instructed to notify
Buyer and Seller in writing of the date of the Opening of Escrow.
4.2 Escrow Instructions. This Agreement, once deposited in Escrow, shall constitute
the joint escrow instructions of Buyer and Seller to Escrow Holder. Additionally, if Escrow
Holder so requires, Buyer and Seller agree to execute the form of escrow instructions that
Escrow Holder customarily requires in real property escrows administered by it. In the event of
any conflict or inconsistency between Escrow Holder's standard instructions and the provisions
of this Agreement, the provisions of this Agreement shall supersede and be controlling. The
parties additionally agree to the Escrow Holder's standard terms, a copy of which is attached
hereto as Exhibit F and to the additional supplemental instructions contained in Exhibit G.
5. DUE DILIGENCE PERIOD. As used herein, the term "Due Diligence Period" shall
refer to a period of time to expire upon the date that is ninety (90) days after the Effective Date.
Buyer's obligation to consummate the transactions contemplated by this Agreement is subject to
and conditioned upon Buyer's approval, deemed approval or waiver of the right to approve of the
following contingencies set forth in this Section 5:
5.1 Title Matters. Buyer shall obtain a preliminary title report prepared by Old
Republic Title Company ("Title Company"), located at 25240 Hancock Avenue, Suite 330,
Murrieta, California 92562, describing the state of title of the Property together with copies of all
underlying documents and a map of plotted easements (collectively, the "Preliminary Title
Report"). Buyer may, at its sole cost and expense, obtain a current survey of the Property (the
"Survey"). Notwithstanding anything herein to the contrary, Seller shall be obligated to remove
all monetary encumbrances against the Property excluding non -delinquent real property taxes
(except as otherwise provided for in Section 9 below). Buyer shall notify Seller in writing of any
objections Buyer may have to title exceptions contained in the Preliminary Title Report or
matters shown on the Survey (if Buyer has obtained) no later than the date which is thirty (30)
days after the later of (i) its receipt of the Preliminary Title Report or (ii) its receipt of the Survey
("Buyer's Objection Notice"). Buyer's approval or disapproval of the matters set forth in the
Preliminary Title Report (and the Survey, if applicable) may be granted or withheld in Buyer's
sole and absolute discretion. Buyer's failure to provide Seller with a Buyer's Objection Notice
within said period shall constitute Buyer's approval of all exceptions to title shown on the
Preliminary Title Report and all matters shown on the Survey (if Buyer has obtained). Seller
shall have a period of ten (10) days after receipt of Buyer's Objection Notice in which to deliver
written notice to Buyer ("Seller's Notice") of Seller's election to either (i) agree to remove the
objectionable items on the Preliminary Title Report or Survey prior to the Close of Escrow, or
(ii) decline to remove any such title exceptions or Survey matters and terminate Escrow and the
2156/015610-0047
709670.06 a08/15/06 -3-
obligations of Buyer and Seller to purchase and sell the Property under this Agreement. Seller's
failure to provide Buyer with Seller's Notice within said period shall constitute Seller's election
to remove the objectionable items on the Preliminary Title Report. If Seller notifies Buyer of its
election to terminate rather than remove the objectionable items on the Preliminary Title Report
or Survey, Buyer shall have the right, by written notice delivered to Seller within ten (10) days
after Buyer's receipt of Seller's Notice, to agree to accept the Property subject to the
objectionable items, in which event Seller's election to terminate shall be of no effect, and Buyer
shall take title at the Close of Escrow subject to such objectionable items without any adjustment
to or credit against the Purchase Price. All exceptions to title shown on the Preliminary Title
Report, other than those which Seller may agree to remove pursuant to this Section 5.1, shall be
deemed to have been approved by Buyer unless Seller is notified otherwise in writing.
Upon the issuance of any amendment or supplement to the Preliminary Title
Report which adds additional exceptions, including any survey exceptions, the foregoing right of
review and approval shall also apply to said amendment or supplement. The process set forth
above for Buyer's review and Seller's response shall apply to any review and response with
respect to any amendment or supplement to the Preliminary Title Report, and the Closing shall
be extended for such period as is necessary to allow for that review and response process to be
completed.
5.2 Physical and Environmental Condition. Buyer shall have access to the Property,
as described in this Section 5.2, in order to permit Buyer or its directors, engineers, analysts,
officers, employees, agents, contractors, representatives, attorneys or advisors (collectively, the
"Buyer Representatives") to investigate the Property.
5.2.1 During the Due Diligence Period, Seller shall permit Buyer and Buyer
Representatives, at the sole cost and expense of Buyer, to conduct physical inspections of the
Property, including the site work, soil, subsurface soils, drainage, seismic and other geological
and topographical matters, location of asbestos, toxic substances, hazardous materials or wastes,
if any, and any other investigations as Buyer deems prudent with respect to the physical
condition of the Property in order to determine the Property's suitability for Buyer's intended
development. Such investigations may be made by Buyer and/or Buyer Representatives during
any normal business hours. Seller shall cooperate to assist Buyer in completing such inspections
and special investigations at no cost or expense to Seller. Such inspections and investigations
shall be conducted only upon no less than twenty-four (24) hours' written or telephonic notice to
Seller and shall be conducted at such times and in such a manner as to minimize any disruption
to the Property. Seller shall have the right, but not the obligation, to accompany Buyer during
such investigations and/or inspections. Buyer agrees to provide Seller a copy of all reports and
investigation summaries, provided that any significant cost for such copies shall be paid by
Seller.
5.2.2 As a condition to any such entry, Buyer shall (i) conduct all work or
studies in a diligent, expeditious and safe manner and not cause any dangerous or hazardous
conditions to occur on the Property during or after such investigation; (ii) comply with all
applicable laws and governmental regulations; (iii) keep the Property free and clear of all
materialmen's liens, lis pendens and other liens arising out of the entry and work performed
under this paragraph; (iv) maintain or assure maintenance of workers' compensation insurance
2156/015610-0047
709670.06 a08/15/06 -4-
(or state approved self-insurance) on all persons entering the property in the amounts required by
the State of California; (v) have procured and have in effect an all-risk public liability insurance
policy meeting the following requirements: (1) the insurance shall be written on a per
occurrence and not claims -made basis; (2) the amount of insurance shall be a combined single
limit of not less than Two Million Dollars ($2,000,000.00) with a deductible or self -insured
retention amount of not more than One Hundred Thousand Dollars ($100,000); (3) the policy
shall name or be endorsed to Seller as an additional insured; (4) the insurance shall not contain
any special limitations on the scope of protection afforded to Seller; (5) the policy shall not be
canceled by the insurer or Buyer unless there is a minimum of thirty (30) days prior written
notice to Seller; (6) the insurer shall waive subrogation rights against the Seller; and (7) the
insurance shall be primary insurance and not contributory with any insurance any of Seller may
have; and (8) the insurance shall apply separately to each insured against whom a claim is made
or suit is brought, except with respect to the limits of the insurer's liability; and (vi) following
Buyer's entry, repair any and all damage to the Property caused by such inspections or
investigations in a timely manner.
5.2.3 Buyer shall promptly pay and discharge all demands for payment relating
to Buyer's entry on and investigation of the Property and take all other steps to avoid the
assertion of claims of lien against the Property. In the event a claim of lien is recorded by reason
of Buyer's entry on the Property, Buyer, within twenty (20) days of such recordation, shall either
(i) record or deliver a surety bond sufficient to release such claim or lien in accordance with
applicable law; or (ii) provide Seller with such other assurance as Seller may require for the
payment of the claim or lien. Seller may elect to record and post notices of non -responsibility
from time to time on and about the Property. Buyer hereby agrees to indemnify and hold Seller
harmless from and against any and all losses, damages, liens, liabilities, claims and causes of
action which Seller may suffer or incur as a consequence of Buyer's entry on the Property prior
to Closing; provided, however, that Buyer shall not indemnify and hold Seller harmless for
claims (i) resulting from the negligence or misconduct of Seller or (ii) relating to pre-existing
conditions merely discovered by Buyer (e.g., latent environmental contamination or Hazardous
Materials).
5.2.4 Prior to expiration of the Due Diligence Period, Buyer shall notify Seller
in writing (i) of Buyer's election to terminate the Escrow and this Agreement, if Buyer
disapproves of the physical or environmental conditions of the Property and, as a result, does not
wish to proceed with purchasing the Property ("Buyer's Termination Notice"), or (ii) of any
objections Buyer may have (the "Disapproved Property Matters") to any physical or
environmental conditions of the Property ("Buyer's Property Objection Notice"). Buyer's
approval or disapproval of the physical and environmental conditions of the Property may be
granted or withheld in Buyer's sole and absolute discretion. In the event Buyer terminates this
Agreement pursuant to this Section, Buyer and Seller shall be relieved of all further liability
under this Agreement, except that Buyer shall be entitled to the return of the Deposit, less the
Release Amount if actually released to Seller pursuant to Section 2.2.1. Buyer's failure to
provide Seller with a Buyer's Termination Notice or a Buyer's Property Objection Notice prior
to the expiration of the Due Diligence Period shall constitute Buyer's approval of the condition
of the Property. If Buyer provides to Seller Buyer's Property Objection Notice, Seller shall have
a period of ten (10) days after receipt of Buyer's Property Objection Notice in which to deliver
written notice to Buyer ("Seller's Response") of Seller's election to either (i) agree to remove the
2156/015610-0047
709670.06 a08/15/06 -5-
Disapproved Property Matters prior to the Close of Escrow, or (ii) decline to remove the
Disapproved Property Matters and terminate Escrow and the obligations of Buyer and Seller to
purchase and sell the Property under this Agreement. Seller's failure to provide Buyer with
Seller's Response within said period shall constitute Seller's election not to remove the
Disapproved Property Matters prior to the Close of Escrow. If Seller is deemed to have elected
not to remove the Disapproved Property Matters, or if Seller notifies Buyer of its election to
terminate rather than remove the Disapproved Property Matters, Buyer shall have the right, by
written notice delivered to Seller within ten (10) days after (i) Buyer's receipt of Seller's
Response, or (ii) the date Seller is deemed to have elected not to remove the Disapproved
Property Matters, as applicable, to agree to accept the Property subject to the Disapproved
Property Matters, in which event Seller's election, or deemed election, to terminate shall be of no
effect, and Buyer shall take title at the Close of Escrow subject to such Disapproved Property
Matters without any adjustment to or credit against the Purchase Price. Buyer's inspections and
investigations of the Property shall be conducted upon the terms and conditions set forth in this
Agreement.
5.3 Environmental Documentation. During the Due Diligence Period, Buyer may
prepare and circulate, as required, all documentation necessary to evaluate the potential
environmental impacts of Buyer's acquisition of the Property (the "Environmental
Documentation"), in accordance with the requirements of the California Environmental Quality
Act (California Public Resources Code Section 21000 et seq. ("CEQA"); provided, however, that
if Buyer diligently prepares and commences circulation, as required, of the Environmental
Documentation, and additional time beyond the Due Diligence Period and Outside Closing Date
is necessary for completion and certification by Buyer's Board thereof of the Environmental
Documentation, then the Due Diligence Period and Outside Closing Date shall be automatically
extended solely for the purpose of completion and certification of the Environmental
Documentation (but not for other investigations or inspections) until Buyer completes, with
continued due diligence, the same. If the Close of Escrow not occur by the Outside Closing Date
due to the Environmental Documentation being incomplete, then Buyer may extend the Close of
Escrow for thirty (30) day periods for the purpose of completing Environmental Documentation
by providing written notice of such extension to Seller and Escrow Holder; provided, however,
that upon Buyer's notice of such an extension(s), Buyer shall concurrently instruct Escrow
Holder to release to Seller the sum of FIVE THOUSAND DOLLARS ($5,000.00) from the
Deposit for each thirty (30) day extension. Deposit funds released pursuant to this section shall
not be credited against the Purchase Price and shall be considered nonrefundable, except that if
Seller defaults under this Agreement then the reimbursement amount shall be immediately
returned to Buyer. Unless otherwise agreed to in writing by both parties, the number of
extensions pursuant to this section shall be limited to six (6).
6. CLOSE OF ESCROW.
6.1 Close of Escrow; Closing Date. Provided that all of the conditions of this
Agreement precedent to the "Close of Escrow" (as hereinafter defined) as set forth in Section 10
below have been satisfied (or waived by the appropriate party) prior to or on the Closing Date,
the Closing of this transaction for the sale and purchase of the Property shall take place on or
before February 28, 2007 ("Outside Closing Date"). Notwithstanding the foregoing, if Buyer
and Seller agree to advance the Closing, and so long as all of "Buyer's Conditions to Closing"
2156/015610-0047
70%70.06 a08/15/06 -6-
and all of "Seller's Conditions to Closing" (as those terms are defined in Section 10) have been
satisfied (or waived by the appropriate party), Seller and Buyer may elect to authorize the
Closing before the Outside Closing Date. The terms "Close of Escrow", "Closing Date" and the
"Closing" are used herein to mean the time Seller's grant deed conveying fee title to the Property
to Buyer is recorded in the Official Records of the Office of the County Recorder of Riverside
("Official Records"). If Escrow is not in a condition to close by the Outside Closing Date (or if
the Outside Closing Date is not extended as provided in this Agreement), either party not then in
default hereunder may, upon five (5) days advance written notice to the other party and Escrow
Holder, elect to terminate this Agreement and the Escrow. No such termination shall release
either party then in default from liability for such default. If neither party so elects to terminate
this Agreement and the Escrow, Escrow Holder shall close the Escrow as soon as possible.
6.2 Recordation; Release of Funds and Documents.
6.2.1 Escrow Holder is directed, on the Closing Date, to record in the Official
Records, the following documents in the order listed: (i) the grant deed (in the form attached
hereto as Exhibit "C") transferring title to the Property to Buyer ("Grant Deed"); and (ii) such
other and further documents as may be directed jointly by Buyer and Seller.
6.2.2 Upon the Closing, Escrow Holder shall deliver (i) the Purchase Price, less
any amount to pay property taxes and/or assessments allocable to Seller pursuant to Section 9,
and (ii) conformed copies of all recorded documents to both Buyer and Seller.
7. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.
7.1 Bu er's Obligations. Buyer agrees that on or before 5:00 p.m. of the last business
day immediately preceding the Closing Date, Buyer shall deposit or cause to be deposited with
Escrow Holder the following:
(a) the Purchase Price, less the Deposit (but not including portions of the
Deposit released pursuant to Sections 2.2, 5.3, 16.18 and 16.20); and
(b) any and all additional funds, instruments or other documents required
from Buyer (executed and acknowledged where appropriate) as may be reasonably necessary in
order for the Escrow Holder to comply with the terms of this Agreement.
7.2 Seller's Obligations. Seller agrees that on or before 5:00 p.m. of the last business
day immediately preceding the Closing Date, Seller shall deposit or cause to be deposited with
Escrow Holder each of the following:
(a) the executed and acknowledged Grant Deed, subject only to the Permitted
Exceptions (defined hereafter);
(b) a Certificate of Non -Foreign Status (the "Non -Foreign Affidavit")
executed and acknowledged by Seller in the form attached hereto as Exhibit "D"; and
2156/015610-0047
709670.06 a08/15/06 -7-
(c) all other funds, items, and instruments required from Seller (executed and
acknowledged where appropriate) as may be reasonably necessary in order for Escrow Holder to
comply with the provisions of this Agreement.
TITLE INSURANCE POLICY.
8.1 Title Policy. At the Closing Date, the Title Company, as insurer, shall issue a
CLTA owner's standard coverage policy of title insurance ("Title Policy"), in favor of Buyer, as
insured, with liability in the amount of the Purchase Price, subject to the following (the
"Permitted Exceptions"):
(d) non -delinquent real property taxes, subject to Seller's obligations to pay
certain taxes pursuant to Section 9 below;
(e) covenants, conditions, restrictions and reservations of record that do not
interfere with the Buyer's proposed use of the Property, as determined in the sole and absolute
discretion of Buyer;
(f) easements or rights -of -way over the Property for public or quasi -public
utility or public street purposes;
(g) title exceptions approved or deemed approved by Buyer pursuant to
Section 5.1 above;
(h) any other exceptions approved by Buyer; and
(i) the standard printed conditions and exceptions contained in the CLTA
standard owner's policy of title insurance regularly issued by the Title Company.
8.2 Payment for Title Policy. Seller shall be responsible for the charges for the Title
Policy with coverage up to the amount of the Purchase Price. Buyer shall pay any additional
coverage or endorsements it requests. Buyer may, at its election and expense, request an ALTA
extended policy of title insurance. Buyer shall also pay for the Survey, if applicable.
9. REAL PROPERTY TAXES AND ASSESSMENTS. Upon Buyer's acquisition of fee
title to the Property, the Property will be exempt from the payment of property taxes due to
Buyer's status as a public agency. Seller shall be responsible for paying (through Escrow at
Closing) all real and personal property taxes and assessments which are of record as of the
Closing Date and/or have accrued against the Property prior to (and including) the Closing Date
(notwithstanding whether such taxes and/or assessments are due and payable as of the Closing
Date). Seller shall be responsible for paying for all real or personal property taxes or
assessments assessed against the Property after the Closing for any period prior to the Closing.
10. CONDITIONS PRECEDENT TO CLOSING.
10.1 Conditions Precedent to Buyer's Obligations. The obligations of Buyer under this
Agreement to purchase the Property and close the Escrow shall be subject to the satisfaction or
2156/015610-0047
709670.06 a08/15/06 -g-
signed written waiver by Buyer of each and all of the following conditions precedent
(collectively, "Buyer's Conditions to Closing"):
(a) on the Closing Date, the Title Company shall be irrevocably committed to
issue the Title Policy pursuant to Section 8 above insuring fee title to the Property as being
vested in Buyer, subject only to the Permitted Exceptions;
(b) the Parcel Map (defined in Section 16.18) shall be recorded and the
Property shall constitute a legally subdivided parcel;
(c) the Real Property shall be annexed into the City of La Quinta pursuant to
Section 16.19 (or such annexation shall be imminent as determined in Buyer's sole discretion)
and no judicial challenges shall have been presented or filed against the Local Agency Formation
Commission or the City of La Quinta's actions in connection with the annexation;
(d) Escrow Holder holds all instruments and funds required for the Closing
and will deliver to Buyer the instruments and funds, if any, accruing to Buyer pursuant to this
Agreement;
(e) except as otherwise permitted by this Agreement, all representations and
warranties by the Seller in this Agreement shall be true on and as of the Closing Date as though
made at that time and all covenants of Seller pursuant to this Agreement shall have been fulfilled
by the Closing Date;
(f) Seller is not in material default of any term or condition of this
Agreement;
(g) as of the Closing Date, no judicial or administrative challenges have been
presented or filed against the Agency or the City of La Quinta's actions in connection with
developing the Real Property as an affordable housing project, including, without limitation, any
challenge to environmental approvals or financing methods; and
In the event that any of Buyer's Conditions to Closing are not satisfied, deemed satisfied,
or waived in a writing signed by Buyer prior to the expiration of the applicable period for
satisfaction or waiver, Buyer may terminate this Agreement.
10.2 Conditions Precedent to Seller's Obligations. The obligations of Seller under this
Agreement shall be subject to the satisfaction or signed written waiver by Seller of each and all
of the following conditions precedent ("Seller's Conditions to Closing"):
(a) Escrow Holder holds the Purchase Price and all other instruments and
funds required for the Closing and will deliver to Seller the instruments and funds, including but
not limited to the Purchase Price (less Seller's closing costs) accruing to Seller pursuant to this
Agreement;
(b) The Parcel Map (defined in Section 16.18) shall be recorded and the
Property and the Remainder Property shall constitute legally subdivided parcels;
2156/015610-0047
709670.06 a08/15/06 -9-
(c) except as otherwise permitted by this Agreement, all representations and
warranties by the Buyer in this Agreement shall be true on and as of the Closing Date as though
made at that time and all covenants of Buyer pursuant to this Agreement shall have been fulfilled
by the Closing Date; and
(d) Buyer is not in material default of any term or condition of this
Agreement.
In the event that any of Seller's Conditions to Closing are not satisfied, deemed satisfied,
or waived in a writing signed by Seller prior to the expiration of the applicable period for
satisfaction or waiver, Seller may terminate this Agreement.
11. POSSESSION. Exclusive possession of the Property shall be delivered by Seller to
Buyer on the Closing Date.
12. ALLOCATION OF COSTS.
12.1 Buyer's Costs. Buyer shall pay the following costs:
(a) fifty percent (50%) of Escrow Holder's escrow fee;
(b) Buyer's own attorney's fees incurred in connection with this Agreement
and the transactions contemplated hereby;
(c) fifty percent (50%) of all the charges for recording the Grant Deed, if any;
(d) the premium difference between the ALTA extended policy of title
insurance and the CLTA standard coverage policy of title insurance if Buyer requests an
extended policy; and
(e) any additional title insurance coverages Seller is not required to pay for
plus any title endorsements requested by Buyer.
12.2 Seller's Costs. Seller shall pay:
(a) fifty percent (50%) of the Escrow Holder's escrow fee;
(b) Seller's own attorney's fees in connection with this Agreement and the
transactions contemplated hereby;
(c)
(d)
and
(e)
this Agreement.
2156/015610-0047
709670.06 a08/15/06
Any documentary transfer taxes associated with the conveyance;
fifty percent (50%) of all the charges for recording the Grant Deed, if any;
the premium for the Title Policy that Seller is required to pay pursuant to
-10-
13. CONDEMNATION. In the event that, prior to the Close of Escrow, any governmental
entity (other than the City) shall commence any proceedings of or leading to eminent domain or
similar type proceedings to take all or any portion of the Property, Buyer or Seller shall promptly
meet and confer in good faith to evaluate the effect of such action on the purposes of this
Agreement.
14. Intentionally Deleted. This preambulatory paragraph has been deleted.
14.1 For purposes of this Agreement, the term "Hazardous Materials" shall mean (1)
hazardous wastes, hazardous materials, hazardous substances, hazardous constituents, toxic
substances or related materials, whether solids, liquids or gases, including, but not limited to,
substances deemed as "hazardous wastes," "hazardous materials," "hazardous substances,"
"toxic substances," "pollutants," "contaminants," "radioactive materials," or other similar
designations in, or otherwise subject to regulation under, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), 42 U.S.C. § 9601
et seq.; the Toxic Substance Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. § 1802; the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. § 9601, et seq.; the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.;
the Safe Drinking Water Act, 42 U.S.C. § 300 et seq.; the Clean Air Act ("CAA"), 42 U.S.C. §
7401 et seq.; the Hazardous Waste Control Law, California Health and Safety Code § 25025 et
seq., the Carpenter -Presley -Tanner Hazardous Substance Account Act, California Health and
Safety Code, Division 20, Chapter 6.8, the Hazardous Materials Release Response Plans and
Inventory Act, California Health and Safety Code, Division 20, Chapter 6.95, The Underground
Storage of Hazardous Substances Act, California Health and Safety Code, Division 20, Chapter
6.7, the Porter -Cologne Act, California Water Code § 13050 et seq. and in any permits, licenses,
approvals, plans, rules, regulations or ordinances adopted, or other criteria and guidelines
promulgated pursuant to the preceding laws or other similar federal, state or local laws,
regulations, rules or ordinances now or hereafter in effect relating to environmental matters
(collectively the "Environmental Laws"); and (ii) any other substances, constituents or wastes
subject to any applicable federal, state or local law, regulation, ordinance or common law
doctrine, including any Environmental Law, now or hereafter in effect, including, but not limited
to, (A) petroleum, (B) refined petroleum products, (C) waste oil, (D) waste aviation or motor
vehicle fuel, (E) asbestos, (F) lead in water, paint or elsewhere, (G) radon, (H) polychlorinated
biphenyls (PCB's) and (I) urea formaldehyde.
15. COVENANTS OF SELLER. Seller agrees that during the period between the Effective
Date of this Agreement and the Closing Date:
(a) Seller shall maintain the Property in not less than the state of repair as that
existing on the Effective Date (excepting ordinary wear and tear);
(b) Seller shall not convey, grant, lease, assign, mortgage, hypothecate,
encumber, or otherwise transfer (on or off record) the Property or any interest therein;
(c) Prior to Closing, Seller shall maintain Seller's existing insurance, if any,
on the Property; and
2156/015610-0047 -11-
709670.06 a08/15/06
(d) Prior to the Closing, Seller shall not alter the physical condition of the
Property or introduce or release, or permit the introduction or release, of any Hazardous
Materials in, from, under, or on the Property.
16. MISCELLANEOUS.
16.1 Assi nment. This Agreement shall be binding upon and shall inure to the benefit
of Buyer and Seller and their respective heirs, personal representatives, successors and assigns.
Seller may not assign or otherwise transfer this Agreement or any interest or right hereunder or
under the Escrow without the prior written consent and approval of the Buyer, which consent and
approval may be withheld in the Buyer's sole and absolute discretion. No provision of this
Agreement is intended nor shall in any way be construed to benefit any party not a signatory
hereto or to create a third party beneficiary relationship.
16.2 Notices. All notices under this Agreement shall be effective upon personal
delivery, via facsimile so long as the sender receives confirmation of successful transmission
from the sending machine, or three (3) business days after deposit in the United States mail,
registered, certified, postage fully prepaid and addressed to the respective parties as set forth
below or as to such other address as the parties may from time to time designate in writing:
To Seller: Testa Family Limited Partnership
Attn: Donald Testa, General Partner
3552 Running Tide Circle
Huntington Beach, California 92649-2514
Telephone: (714) 846-9130
Facsimile: (714) 846-7595
Email dtesta@pol.net
To Buyer: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Manager
Telephone: (760) 777-7100
Facsimile No.: (760) 777-7101
Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92628-1950
Attn: M. Katherine Jenson, Esq.
Telephone: (714) 641-5100
Facsimile No.: (714) 546-9035
16.3 Fair Meaning. This Agreement shall be construed according to its fair meaning
and as if prepared by both parties hereto.
16.4 Headings. The headings at the beginning of each numbered Section of this
Agreement are solely for the convenience of the parties hereto and are not a part of this
Agreement.
2156/015610-0047
709670.06 a08/15/06 -12-
16.5 Choice of Laws; Litigation Matters. This Agreement shall be governed by the
internal laws of the State of California and any question arising hereunder shall be construed or
determined according to such law. The Municipal and Superior Courts of the State of California
in and for the County of Riverside, or such other appropriate court in such county, shall have
exclusive jurisdiction of any litigation between the parties concerning this Agreement. Service
of process on Buyer shall be made in accordance with California law. Service of process on
Seller shall be made in any manner permitted by California law and shall be effective whether
served inside or outside California.
16.6 Nonliabilit of f Buyer Officials. No officer, official, member, employee, agent, or
representatives of Buyer shall be liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
16.7 Gender; Number. As used in this Agreement, masculine, feminine, and neuter
gender and the singular or plural number shall be deemed to include the others wherever and
whenever the context so dictates.
16.8 Survival. This Agreement and all covenants to be performed after the Closing,
and, except as otherwise set forth herein, all representations and warranties contained herein,
shall survive the Closing Date and shall remain a binding contract between the parties hereto.
16.9 Time of Essence. Time is of the essence of this Agreement and of each and every
term and provision hereof, it being understood that the parties hereto have specifically negotiated
the dates for the completion of each obligation herein.
16.10 Waiver or Modification. A waiver of a provision hereof, or modification of any
provision herein contained, shall be effective only if said waiver or modification is in writing,
and signed by both Buyer and Seller. No waiver of any breach or default by any party hereto
shall be considered to be a waiver of any breach or default unless expressly provided herein or in
the waiver.
16.11 Broker's Fees. La Quinta Palms Real Estate Co. Inc., a California corporation
and California Licensed Real Estate Brokerage, DBA La Quinta Palms Realty, is acting as Agent
("Agent") for both the Buyer and Seller in the transaction contemplated by this Agreement and is
being compensated solely by the Seller under a separate commission agreement. The Seller
agrees to indemnify and hold the Buyer free and harmless from and against any and all liability,
loss, costs, or expense (including court costs and reasonable attorney's fees) in any manner
connected with Seller's commission agreement with Agent. Seller and Buyer represent and
warrant to the other that neither Buyer nor Seller has employed any other broker and/or finder to
represent its interest in this transaction. Each party agrees to indemnify and hold the other free
and harmless from and against any and all liability, loss, cost, or expense (including court costs
and reasonable attorney's fees) in any manner connected with a claim asserted by any individual
or entity other than Agent for any commission or finder's fee in connection with the conveyance
of the Property arising out of agreements by the indemnifying party to pay any commission or
finder's fee.
2156/015610-0047
709670.06 a08/15/06 -13-
16.12 Duplicate Originals. This Agreement may be executed in any number of
duplicate originals, all of which shall be of equal legal force and effect.
16.13 Severability. If any term, covenant or condition of this Agreement or the
application thereof to any person, entity, or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Agreement, or the application of such term, covenant, or
condition to persons, entities, or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
16.14 Exhibits. The following exhibits are attached hereto and incorporated herein by
this reference:
Exhibit "A"
Legal Description of 15.13 Acre Property
Exhibit `B"
Legal Description of Real Property
Exhibit "C"
Grant Deed
Exhibit "D"
Non -Foreign Affidavit
Exhibit "E"
Intentionally Deleted
Exhibit "F"
Escrow Instructions
Exhibit "G"
Special Escrow Instructions
16.15 _Seller's Representation and Warranties. As of the Effective Date and again as of
the Close of Escrow, Seller hereby makes the following covenants, representations and
warranties, which representations and warranties shall survive the Closing:
16.15.1 Seller is the fee title owner of the Real Property.
16.15.2 As of the Effective Date, there are no pending or existing leases,
leasehold interests, tenancies, occupancies, licenses, license agreements, rental agreements, use
agreements, right of entry agreements, or any other type of agreement granting any person, firm,
or entity any right to possess or use, the Property, or any portion thereof (collectively, "Property
Agreement"), and that any prior Property Agreements have either expired as of their own terms
or have not been renewed due to the failure of Seller and the other contracting entity to reach
terms acceptable to both parties.
16.15.3 Neither the execution of this Agreement nor the performance by Seller
of each of the terms hereof constitutes or shall constitute a default or violation by Seller under
any contract, loan, note, deed of trust, or other agreement, obligation or covenant to which Seller
is a party or to which Seller is bound.
16.15.4 Seller is not a party to any bankruptcy, insolvency or receivership
proceeding of any kind, whether voluntary or involuntary.
16.15.5 Seller has not entered into any other agreements with any other party to
sell or convey the Property or any portion thereof.
16.15.6 There are no Hazardous Materials situated on, under or about the
Property (including any groundwater contamination).
2156/015610-0047
709670.06 a08/15/06 -14-
16.15.7 Seller is not a party to any lawsuit, litigation or other legal or
administrative proceeding affecting the Property or Seller's ability to perform its obligations
hereunder nor has any such matter been threatened.
In the event that, during the term of this Agreement, a change in circumstance should
occur which would cause any of Seller's above representations and warranties to be materially
inaccurate if they were made as of that date, Seller shall advise Buyer in writing of such change
in circumstance within ten (10) days from the date upon which Seller discovers such material
inaccuracy. Notwithstanding anything to the contrary set forth elsewhere in this Agreement,
Buyer shall have the right, within ten (10) business days from receipt of such notification from
Seller to notify Seller of Buyer's election to terminate this Agreement and obtain a return of the
Deposit.
16.16 Authority. The person(s) executing this Agreement on behalf of each of the
parties hereto represent and warrant that (i) such party is duly organized and existing, (ii) they
are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so
executing this Agreement such party is formally bound to the provisions of this Agreement, and
(iv) the entering into this Agreement does not violate any provision of any other agreement to
which such party is bound.
16.17 Eminent Domain. Buyer and the City of La Quinta have the power of eminent
domain within certain jurisdictional limits of the City of La Quinta. In the event Seller had
determined not to sell the Real Property to Buyer, staff would have recommended to the Board
of Directors of Buyer or to the City Council of the City of La Quinta that upon annexation of the
Real Property into the City of La Quinta Buyer and/or the City of La Quinta, after providing
notice to Seller and holding a hearing as required by applicable law, consider adopting a
resolution of necessity and thereafter commencing proceedings to acquire the Real Property by
the exercise of its power of eminent domain. It is the intent of Seller to have this acquisition
completed as a tax deferred exchange pursuant to Sections 1031 or 1033 of the Internal Revenue
Code of 1986, as amended, and Section 18662 of the California Revenue and Taxation Code.
Notwithstanding the foregoing, Buyer makes no representation, warranty, or guaranty to Seller
or to any other person, firm, or entity concerning the tax treatment by any taxing authority,
including but not limited to, the Internal Revenue Service, of the conveyance of the Real
Property to Buyer, including the tax treatment and tax consequences of an acquisition under the
threat of condemnation. Seller acknowledges that Buyer is not providing tax advice to Seller or
to any person, firm, or entity and Seller further acknowledges and agrees that Seller must consult
Seller's own tax advisor concerning the tax treatment, tax implications, and tax consequences of
the sale of the Real Property to Buyer.
16.18 _Parcel Map for Real Property. Seller shall, at its sole cost and expense (subject to
the reimbursement provision in this section), process a parcel map or lot line adjustment to create
the Real Property as a separate legal parcel in compliance with the California Subdivision Map
Act ("Parcel Map") provided that such Parcel Map shall also establish access to the Remainder
Property through the Bermuda Dunes Country Club. Buyer shall reimburse Seller for one half of
the actual cost and expense of processing the Parcel Map, which reimbursement shall be made
within ten (10) days of the date that the Parcel Map is recorded; provided, however, that Buyer's
reimbursement obligation under this section shall not exceed a usual, customary and reasonable
2156/015610-0047
709670.06 a08/15/06 -15-
fee for engineering and costs associated with processing a Parcel Map. The Buyer shall approve
(in advance) the engineering bids/contracts associated with processing of the Parcel Map. Seller
shall keep accurate records of actual costs and expenses incurred in processing and approving the
Parcel Map and such records shall be provided to Buyer at the time Seller seeks reimbursement.
Buyer's reimbursement shall be made by releasing funds from the Deposit, which release shall
only occur upon presentation to Escrow Holder of a written notice signed by both Seller and
Buyer instructing Escrow Holder to release the reimbursement amount from Escrow. Deposit
funds released to pay reimbursements pursuant to this section shall not be credited against the
Purchase Price and shall be considered nonrefundable, except that if Seller defaults under this
Agreement then the reimbursement amount shall be immediately returned to Buyer.
16.19 Seller Processing of Further Subdivision. Seller shall have the right to process
and seek approval of a subdivision map for the Remainder Property and may do so
simultaneously with the processing of the Parcel Map for the Real Property; provided, however,
that Seller's processing of a subdivision map for the Remainder Property shall (i) be a separate
application from the Parcel Map, (ii) at Seller's sole cost and expense, and (iii) such processing
and approval shall not be a condition to nor delay the Close of Escrow and the sale of the
Property contemplated by this Agreement. No costs or expenses incurred in connection with the
subdivision map for the Remainder Parcel shall be reimbursed by Buyer and such costs shall not
be included in the reimbursement amount described in Section 16.18.
16.20 Annexation of Real Property. Buyer or the City of La Quinta, at Buyer's or the
City's sole cost and expense, shall apply for and process annexation of the Real Property into the
City of La Quinta. Annexation of the Real Property (or a decision that annexation is imminent as
determined in Buyer's sole discretion) shall be a condition precedent to Buyer's obligation to
Close Escrow. Seller shall use best efforts to cooperate with Buyer and its agents, consultants,
representatives and employees in connection with the annexation, including without limitation,
the prompt execution of all applicable documents, at no cost or expense to Seller. Seller hereby
irrevocably grants to Buyer the exclusive right to act on behalf of Seller for the purpose of
obtaining annexation. If the Close of Escrow not occur by the Outside Closing Date due to the
annexation process being incomplete, then Buyer may extend the Close of Escrow for thirty (30)
day periods for the purpose of completing annexation by providing written notice of such
extension to Seller and Escrow Holder; provided, however, that upon Buyer's notice of such an
extension(s), Buyer shall concurrently instruct Escrow Holder to release to Seller the sum of
FIVE THOUSAND DOLLARS ($5,000.00) from the Deposit for each thirty (30) day extension.
Deposit funds released pursuant to this section shall not be credited against the Purchase Price
and shall be considered nonrefundable, except that if Seller defaults under this Agreement then
the reimbursement amount shall be immediately returned to Buyer. Unless otherwise agreed to in
writing by both parties, the number of extensions pursuant to this section shall be limited to six
(6).
16.21 Entire Agreement; Amendment. Except as set forth above, this Agreement and
the exhibits incorporated herein contain the entire agreement of Buyer and Seller with respect to
the matters contained herein, and no prior agreement or understanding pertaining to any such
matter shall be effective for any purpose. No provisions of this Agreement may be amended or
modified in any manner whatsoever except by an agreement in writing signed by duly authorized
officers or representatives of each of the parties hereto.
2156/015610-0047
709670.06 a08/15/06 -16-
16.22 Disclosures. Donald Testa is a licensed California real estate broker and a
licensed California attorney acting as a principal.
16.23 DEFAULT OF BUYER; LIQUIDATED DAMAGES. IF THE CLOSE OF
ESCROW DOES NOT OCCUR DUE TO BUYER'S DEFAULT UNDER THIS
AGREEMENT, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, BUYER AND SELLER AGREE THAT SELLER WILL
INCUR DAMAGES BY REASON OF SUCH DEFAULT BY BUYER, WHICH
DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT
IMPOSSIBLE, TO ASCERTAIN. BUYER AND SELLER, IN A REASONABLE
EFFORT TO ASCERTAIN WHAT SELLER'S DAMAGES WOULD BE IN THE EVENT
OF SUCH DEFAULT BY BUYER, HAVE AGREED BY PLACING THEIR INITIALS
BELOW THAT THE DEPOSIT (AND ALL INTEREST EARNED THEREON) SHALL
BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF SELLER'S
DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE. IN THE EVENT OF AND FOR SUCH DEFAULT BY
BUYER, SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT
AND TO RETAIN THE DEPOSITS WHICH HAVE PREVIOUSLY BEEN DELIVERED
BY BUYER PLUS ALL INTEREST THEREON AS LIQUIDATED DAMAGES AND AS
SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER WITH THE
EXCEPTION OF THE INDEMNITY PROVISIONS CONTAINED IN SECTION 5.2.3.
SELLER SHALL HAVE NO RIGHT TO AN ACTION FOR SPECIFIC
PERFORMANCE OF ANY PROVISIONS OF THIS AGREEMENT. IN
CONSIDERATION OF THE PAYMENT OF LIQUIDATED DAMAGES, SELLER WILL
BE DEEMED TO HAVE WAIVED ALL OTHER CLAIMS FOR DAMAGES OR
RELIEF AT LAW OR IN EQUITY INCLUDING ANY RIGHTS SELLER MAY HAVE
PURSUANT TO SECTION 1680 OR SECTION 3389 OF THE CALIFORNIA CIVIL
CODE RELATING TO BUYER'S DEFAULT RESULTING IN ESCROW NOT
CLOSING AS PROVIDED UNDER THIS AGREEMENT. BY INITIALING THIS
PROVISION IN THE SPACES BELOW, SELLER AND BUYER EACH SPECIFICALLY
AFFIRM THEIR RESPECTIVE AGREEMENTS CONTAINED IN THIS SECTION
AND AGREE THAT SUCH SUM IS A REASONABLE SUM CONSIDERING THE
CIRCUMSTANCE THEY EXIST ON THE DATE OF THIS AGREEMENT.
ITIALS BUYER'S INITIALS
[END -- SIGNATURE PAGE FOLLOWS]
2156/015610-0047
70%70.06 a08/15/06 -17-
IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has read this
Agreement, understands it, and hereby executes this Agreement to be effective as of the day and
year first written above.
SELLER:
The Testa Family Limited Partnership, a
California limited partnership
By: '7� �"'j A
Its: Gener artner
By:
Its:
BUYER:
LA QUINTA REDEVELOPMENT GENCY,
a is d orporate and liti
By.� eyyc .rr� C-u
Thomas P. Genovese, Executive Director
ATTEST:
-�O►rLl.� �i t,J �►��iG ri --n Aj-o t n c�j
June Greek, Agency Secretary SQ cry- 25
APPROVED AS TO FORM:
RUTAN & TUCKER, P
By: A
M. Katherine Jenson, Agency Counsel
[end of signatures]
2156/015610-0047 709670.06 a08/15/06 —1 g_
Four Seasons Escrow, Inc., agrees to act as Escrow Holder in accordance with the terms of this
Agreement that are applicable to it.
Four Seasons Escrow, Inc.
By: _
Name:
Its:
2156/015610-0047 -19-
709670.06 a08/15/06
EXHIBIT "A"
LEGAL DESCRIPTION OF 15.13 ACRE PROPERTY
APN: 609-040-005
That portion of the South half of the South half of the Northwest quarter of Section 18, Township
5 South, Range 7 East, San Bernardino Base and Meridian, described as follows:
Beginning at the Southwest corner of the Northwest quarter of said Section 18;
Thence North 0° 04' 5 1 " East on the Westerly line of said section, 133.69 feet;
Thence North 89' 2 F 21 " East 370.03 feet;
Thence North 00 04' 5 1 " East 130.01 feet;
Thence North 89' 21' 21 " East 2315.95 feet, more or less, to the Easterly line of the Northwest
quarter of said section;
Thence South 0° 00' 39" West on said Easterly line of the Northwest quarter of said section,
265.2 feet, more or less, to the Southeast corner of the Northwest quarter of said section;
Thence South 89' 23' 25" West of the Southerly line of said Northwest quarter 2686.39 feet to
the Point of Beginning.
Except therefrom the Westerly 40 feet lying within Washington Street as acquired by the County
of Riverside by order of the Board of Supervisors recorded April 17, 1959, in Book 2454, Page
65 of Official Records of Riverside County, California, and by deed recorded September 29,
1964 in Book 3813, Page 263 of Official Records of Riverside County, California.
2156/015610-0047
709670.06 a08/15/06
EXHIBIT "B"
LEGAL DESCRIPTION/DEPICTION OF REAL PROPERTY
[Jon McMillen to provide depiction and description]
2156/015610-0047
709670.06 a08/15/06
EXHIBIT "C"
FORM OF GRANT DEED
[SEE ATTACHED]
2156/015610-0047
709670.06 a08/15/06
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
LA QUINTA REDEVELOPMENT AGENCY
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
(Exempt from Recordation Fee per Gov. Code § 6103)
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
THE TESTA FAMILY LIMITED PARTNERSHIP, A CALIFORNIA LIMITED
PARTNERSHIP, hereby grant to the LA QUINTA REDEVELOPMENT AGENCY, a public
body corporate and politic, that certain real property located in the City of La Quinta, County of
Riverside, State of California, legally described on Attachment No. 1, which is attached hereto,
and incorporated herein by this reference, subject to all matters of record.
Dated: , 2007 GRANTOR:
The Testa Family Limited Partnership, a
California limited partnership
By:
Its:
By:
Its:
2156/015610-0047
709670.06 a08/15/06
STATE OF CALIFORNIA )
} ss
COUNTY OF 1
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 1
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.
[SEAL]
Notary Public
2156/015610-0047
709670.06 a08/15/06 -2-
ATTACHMENT NO. 1
LEGAL DESCRIPTION OF REAL PROPERTY
[Jon McMillen to provide depiction and description.]
7096/0.0610-0047
8/15/ Attachment 1 to Grant Deed
709670.06 a08/15/06
CERTIFICATE OF ACCEPTANCE
THIS IS TO CERTIFY that the interest in real property conveyed by a Grant Deed dated
from The Testa Family Limited Partnership, a California limited
partnership, to the La Quinta Redevelopment Agency, a public body corporate and politic
("Agency"), is hereby accepted by the Agency by the signature of the undersigned agent on
behalf of the Agency pursuant to the authority conferred upon him by the Resolution No. 2006-
adopted on , 2006, and that the Agency, as the Grantee, by its said duly
authorized agent, hereby consents to the recordation thereof.
DATED:
LA QUINTA REDEVELOPMENT AGENCY,
public body corporate and politic
By:
Name: Thomas P. Genovese
Executive Director, La Quinta Redevelopment
Agency
I HEREBY ATTEST to the authenticity of the foregoing signature and to the said adoption of
the said Resolution of his general authority to so act and certify that said authority has not
been revoked by any subsequent Resolution or order of the Agency.
DATED:
June S. Greek, Agency Clerk, La Quinta Redevelopment Agency
6/0610-0047
709670.0.06 a08/15/06 Attachment I to Grant Deed
709
EXHIBIT "D"
AFFIDAVIT OF NON -FOREIGN ENTITY
TO: LA QUINTA REDEVELOPMENT AGENCY ("Buyer")
The Internal Revenue Code of 1954 ("Code") (26 U.S.C. Sections 1445, 7701) provides that a
transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person.
To inform the transferee that withholding of tax is not required upon transfer of that certain U.S.
real property interest described in Exhibit "A" to the Agreement for Purchase and Sale and
Escrow Instructions dated , 2006, and incorporated herein by reference
("Property"), that the undersigned ("Seller") hereby certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as
those terms are defined in the Internal Revenue Code and Income Tax Regulations); and
2. The U.S. taxpayer identification number for Seller is 33-0682703; and
3. The address for mailing purposes of Seller is: 3552 RunningTide Circle, Huntington
Beach, CA 92649-2514; and
4. Seller understands that this certification may be disclosed to the Internal Revenue Service
by Buyer and that any false statement contained herein could be punished by fine,
imprisonment, or both.
Under penalty of perjury, I declare that I have examined this Certification and to the best of my
knowledge and belief, it is true, correct, and complete, and I further declare that I have authority
to sign this document on behalf of Seller.
Dated: , 2007 SELLER:
The Testa Family Limited Partnership, a
California limited partnership
By:
Its: General Partner
By:
Its:
2156/015610-0047
709670.06 a08/15/06
EXHIBIT "E"
Intentionally Deleted
2156/015610-0047
709670.06 a08/15/06
EXHIBIT "F"
ESCROW INSTRUCTIONS
[TO BE INSERTED ONCE RECEIVED FROM ESCROW CO]
2156/015610-0047
709670.06 a08/15/06
EXHIBIT "G"
SPECIAL ESCROW INSTRUCTIONS
PRORATIONS AND/OR ADJUSTMENTS:
Escrow Holder is authorized and instructed to prorate and/or make adjustments on the
following items as of the close of escrow date:
TAXES ON REAL PROPERTY:
Prorate taxes, including all tax bill items, except taxes on personal property not conveyed
through this escrow, based on the current year's taxes, except between July I" and the date you
are furnished current taxes, based on immediate preceding year's taxes. In each case use the
figures furnished you by the title company, without liability on your part as to their correctness.
Owner to pay prior to delinquency, supplemental tax bills, and any taxes on personal property
not being sold herein, which taxes are a lien on the real property being conveyed and you are not
to be concerned herewith.
Refund, if any, from the Riverside County Tax Collector, for refund of taxes buyer is
being debited for herein, is to be handled outside of escrow. Four Seasons Escrow, its officers
and employees are relieved of all responsibility and liability in connection therewith.
2156/015610-0047
709670.06 a08/15/06 -1-
TABLE OF CONTENTS
Page
1. PROPERTY......................................................................................................................1
1.1 Improvements.......................................................................................................2
2. PURCHASE PRICE.........................................................................................................2
2.1 Amount.................................................................................................................2
2.2 Payment of Purchase Price....................................................................................2
3. Intentionally Deleted.........................................................................................................3
4. ESCROW..........................................................................................................................3
4.1 Opening of Escrow............................................................................................... 3
4.2 Escrow Instructions...............................................................................................3
5. DUE DILIGENCE PERIOD.............................................................................................3
5.1 Title Matters..........................................................................................................3
5.2 Physical and Environmental Condition................................................................4
5.3 Environmental Documentation............................................................................. 6
6.
CLOSE OF ESCROW......................................................................................................6
6.1 Close of Escrow; Closing Date............................................................................. 6
6.2 Recordation; Release of Funds and Documents ................................................... 7
7.
DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.............7
7.1 Buyer's Obligations.............................................................................................. 7
7.2 Seller's Obligations...............................................................................................7
8.
TITLE INSURANCE POLICY........................................................................................8
8.1 Title Policy............................................................................................................8
8.2 Payment for Title Policy....................................................................................... 8
9.
REAL PROPERTY TAXES AND ASSESSMENTS......................................................8
10.
CONDITIONS PRECEDENT TO CLOSING.................................................................8
10.1 Conditions Precedent to Buyer's Obligations.......................................................8
10.2 Conditions Precedent to Seller's Obligations.......................................................
9
11.
POSSESSION.................................................................................................................10
12.
ALLOCATION OF COSTS...........................................................................................10
12.1 Buyer's Costs......................................................................................................10
12.2 Seller's Costs......................................................................................................10
2156/015610-0047
709670.06 a08/15/06 -1-
Nee
13. CONDEMNATION........................................................................................................11
15. COVENANTS OF SELLER........................................................................................... I I
16. MISCELLANEOUS.......................................................................................................12
16.1
Assignment.........................................................................................................12
16.2
Notices................................................................................................................12
16.3
Fair Meaning.......................................................................................................12
16.4
Headings.............................................................................................................12
16.5
Choice of Laws; Litigation Matters....................................................................13
16.6
Nonliability of Buyer Officials...........................................................................13
16.7
Gender; Number..................................................................................................13
16.8
Survival...............................................................................................................13
16.9
Time of Essence..................................................................................................13
16.10
Waiver or Modification.......................................................................................13
16.11
Broker's Fees......................................................................................................13
16.12
Duplicate Originals.............................................................................................14
16.13
Severability.........................................................................................................14
16.14
Exhibits...............................................................................................................14
16.15
Seller's Representation and Warranties..............................................................14
16.16
Authority.............................................................................................................15
16.17
Eminent Domain.................................................................................................15
16.18
Parcel Map for Real Property.............................................................................15
16.19
Seller Processing of Further Subdivision............................................................16
16.20
Annexation of Real Property..............................................................................16
16.21
Entire Agreement; Amendment..........................................................................16
16.22
Disclosures..........................................................................................................17
16.23
DEFAULT OF BUYER; LIQUIDATED DAMAGES......................................17
EXHIBITS
Exhibit A
Legal Description of 15.13 Acre Property
Exhibit B
Legal Description of Real Property
Exhibit C
Form of Grant Deed
Exhibit D
Form of Affidavit of Non -Foreign Entity
Exhibit E
Bill of Sale
Exhibit F
Escrow Instructions
Exhibit G
Special Escrow Instructions
2156/015610-0047
709670.06 a08/15/06 -11-