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2007 LDD Silverock - Disposition & DADISPOSITION AND DEVELOPMENT AGREEMENT By and Between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, and LDD SILVERROCK, LLC, a Delaware limited liability company 882/015610-0084 737414 08 a02/26/07 TABLE OF CONTENTS Page 100. DEFINITIONS................................................................................................................. 1 200. CONVEYANCE OF THE PROPERTY.......................................................................... 9 201. Disposition of the Property................................................................................... 9 201.1 The Initial Escrow.................................................................................... 9 201.2 The Second Escrow.................................................................................. 9 201.3 The Third Escrow................................................................................... 10 201.4 The Fourth Escrow................................................................................. 10 201.5 The Ranch Villas Escrow....................................................................... 10 201.6 Executive Director Discretion Regarding Phasing ................................. 11 202. Escrow................................................................................................................11 202.1 Costs of Escrow...................................................................................... 11 202.2 Payment of Purchase Price..................................................................... 11 202.3 Escrow Instructions................................................................................11 202.4 Authority of Escrow Agent..................................................................... 12 202.5 Closing....................................................................................................13 202.6 Termination............................................................................................ 13 202.7 Closing Procedure................................................................................... 13 203. Review of Title of Property................................................................................ 14 204. Title Insurance.................................................................................................... 15 205. Conditions of Closing......................................................................................... 15 205.1 Agency's Conditions of Closing............................................................. 15 205.2 Developer's Conditions of Closing........................................................ 18 206. Studies and Reports............................................................................................ 19 206.1 Access to Property.................................................................................. 19 206.2 Indemnification....................................................................................... 21 207. Condition of the Property................................................................................... 21 207.1 Disclosure...............................................................................................21 207.2 Investigation of Property........................................................................ 21 207.3 No Further Warranties As To Property; Release of Agency..................22 207.4 Developer Precautions After the Closing ............................................... 22 207.5 Developer Indemnity..............................................................................23 208. Deposit Payments............................................................................................... 23 208.1 Schedule of Payments............................................................................. 23 208.2 Release of Deposit Payment Funds to Developer .................................. 24 208.3 Agency Retention of Deposit Payment Funds ........................................ 25 209. Right of First Offer.............................................................................................26 210. Ranch Villas Parcel............................................................................................ 27 300. DEVELOPMENT OF THE PROJECT.......................................................................... 27 301. Scope of Development........................................................................................ 27 302. Design Review.................................................................................................... 28 302.1 Developer Submissions.......................................................................... 28 882/01561 MOM 737414 08 a0226/07 -�' Page 302.2 City Review and Approval..................................................................... 28 302.3 Revisions................................................................................................ 28 302.4 Defects in Plans...................................................................................... 28 302.5 Land Use Approvals............................................................................... 28 303. Schedule of Performance.................................................................................... 29 304. Indemnity and Insurance Requirements............................................................. 29 305. Indemnity............................................................................................................ 30 306. Rights of Access................................................................................................. 31 307. Compliance With Laws; Payment of Taxes ....................................................... 31 307.1 Compliance with Laws........................................................................... 31 307.2 Taxes and Assessments.......................................................................... 31 308. Release of Construction Covenants.................................................................... 32 309. Financing of the Project...................................................................................... 32 309.1 Approval of Financing............................................................................ 32 309.2 Changes Requested by Lenders.............................................................. 33 309.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right toCure.................................................................................................... 33 309.4 Failure of Holder to Complete Project ................................................... 33 309.5 Right of the Agency to Cure Mortgage or Deed of Trust Default.......... 34 309.6 Holder Not Obligated to Construct Project ............................................ 34 310. Developer CC&Rs.............................................................................................. 34 311. Interference with Municipal Golf Course........................................................... 35 312. Infrastructure Improvements.............................................................................. 35 313. Pipeline Across Boutique Hotel Parcel.............................................................. 36 400. DEVELOPMENT AGREEMENT; RESORT RETAIL VILLAGE PARCEL GROUNDLEASE.......................................................................................................... 36 401. Term....................................................................................................................37 402. Rent.....................................................................................................................37 403. No Assignment................................................................................................... 37 404. Permitted Uses.................................................................................................... 37 500. USE AND OPERATION OF THE PROPERTY........................................................... 37 501. Operation of the Project...................................................................................... 37 502. Use in Accordance with Redevelopment Plan ................................................... 40 503. Maintenance Covenants......................................................................................40 504. Nondiscrimination Covenants............................................................................ 40 505. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction...................................................................... 41 506. Representations and Warranties.........................................................................42 506.1 Agency Representations......................................................................... 42 506.2 Developer's Representations..................................................................43 600. DEFAULTS AND REMEDIES..................................................................................... 44 601. Default Remedies............................................................................................... 44 602. Institution of Legal Actions................................................................................ 44 882/015610-0084 737414 08 a02/26/07 -11- Page 603. Termination Prior to the Close of the Initial Escrow .......................................... 44 603.1 Termination by Developer...................................................................... 44 603.2 Termination by Agency.......................................................................... 45 604. Termination Prior to Subsequent Parcel Conveyance ........................................ 45 604.1 Termination by the Developer................................................................ 45 604.2 Termination by the Agency.................................................................... 45 605. Agency Option to Acquire Plans........................................................................ 46 606. Option Agreement.............................................................................................. 46 607. Right to Reverter and Power of Termination..................................................... 46 608. Acceptance of Service of Process....................................................................... 47 609. Rights and Remedies Are Cumulative................................................................ 47 610. Inaction Not a Waiver of Default....................................................................... 47 611. Applicable Law...................................................................................................47 612. Non -Liability of Officials and Employees of the Agency .................................. 47 613. Attorneys' Fees...................................................................................................47 700. GENERAL PROVISIONS.............................................................................................47 701. Notices, Demands and Communications Between the Parties ........................... 47 702. Enforced Delay; Extension of Times of Performance ........................................ 48 703. Transfers of Interest in Property, Agreement, or Management .......................... 49 703.1 Transfers of Interest in Property or Agreement Prior to Agency's Issuance of a Release of Construction Covenants .................. 49 703.2 Transfers of Operational Obligations..................................................... 50 703.3 Assignment and Assumption of Obligations .......................................... 51 703.4 Successors and Assigns.......................................................................... 51 703.5 Assignment by Agency........................................................................... 51 704. Relationship Between Agency and Developer ................................................... 52 705. Agency Approvals and Actions.......................................................................... 52 706. Counterparts........................................................................................................52 707. Integration........................................................................................................... 52 708. Real Estate Brokerage Commission................................................................... 52 709. Titles and Captions............................................................................................. 52 710. Interpretation...................................................................................................... 53 711. No Waiver........................................................................................................... 53 712. Modifications......................................................................................................53 713. Severability.........................................................................................................53 714. Computation of Time.......................................................................................... 53 715. Legal Advice....................................................................................................... 53 716. Time of Essence.................................................................................................. 54 717. Cooperation........................................................................................................ 54 718. Conflicts of Interest............................................................................................ 54 719. Time for Acceptance of Agreement by Agency ................................................. 54 ATTACHMENTS Attachment No. 1 - Legal Description of Property 882/015610-0084 737414 08 a02/26/07 -lll- Page Attachment No. 2 - Site Map Attachment No. 3 - Purchase Price Attachment No. 4 - Form of Grant Deed Attachment No. 5 - Scope of Development Attachment No. 6 - Form of Development Agreement Attachment No. 7 - Form of Option Agreement Attachment No. 8 - Release of Construction Covenants Attachment No. 9 - Schedule of Performance Attachment No. 10 - Memorandum of DDA Attachment No. 11 - Form of Parcel Map Attachment No. 12 - Four Star Quality Requirements Attachment No. 13 - Depiction of Public Improvements Attachment No. 14 - List of Authorized Managers Attachment No. 15 - Form of Assignment and Assumption Agreement 882/015610-0084 737414 09 a02/26/07 -iv- 2/26/2007 4:32 PM From date: 2/26/2007 To date: 2/26/2007 File #: 025819 0001 Client: Hoprock Sun City LLC Matter: Menifee Valley Crossroads Attorneys: Rutan & Tucker, LLP Report. CURT02 New Case Report Req'd By: 2273 Date Opened: 2/2612007 Billing Attorney Oderman, Jeffrey Originating Attorney(s) Oderman, Jeffrey Participating Attorney (a) Oderman, Jeffrey-100.00% Lead Working Attorney Oderman, Jeffrey Related / Adverse Parties Rockwood Capital LLC County of Riverside File #: 025876 0001 Client: RMV Holdings, LLC Matter: Contract Dispute Attorneys: Billing Attorney Originating Attorney(s) Participating Attorney (s) Lead Working Attorney Howell, Richard Howell, Richard Howell, Richard-100.00% Howell, Richard Related / Adverse Parties Post Surgical Rehab Specialties Frontline Care Management, LLC Michael Nawrozini File #: 087956 0070 Client: Tognazzini, Terry D. Matter: Anaheim Defeasance Attorneys: Billing Attorney Originating Attorney(s) Participating Attorney (s) Lead Working Attorney Relationship Associated Party Adverse Party Date Opened: 2/26/2007 Relationship Associated Party Adverse Party Adverse Party Volkert, Adam Firm, Volkert, Adam-90.00%; Firm,' -10 00% Volkert, Adam Related / Adverse Parties Commercial Defeasance, LLC Capmark Finance, Inc. Date Opened: 2/2612007 Relationship Adverse Party Adverse Party Page:2 DISPOSITION AND DEVELOPMENT AGREEMENT This DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is entered into as of December 19, 2006 ("Effective Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and LDD SILVERROCK, LLC, a Delaware limited liability company (the "Developer"). RECITALS The following recitals are a substantive part of this Agreement: A. Agency is a public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California (Health & Safety Code Section 33000, et seq.). B. Developer is an affiliate of a national real estate development company which, including its affiliates, specializes in the development and management of luxury hotels, resort condominiums, and related amenities. C. Agency owns fee title to that certain real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 (the "Property"). The Property is located in La Quinta Redevelopment Project Area No. 1 (the "Project Area"), which Project Area is located in the City of La Quinta, California. D. The Agency and the Developer desire by this Agreement for Developer to purchase the Property from Agency and to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel and a four -star quality or higher luxury resort hotel, a retail village, condominium hotel units, resort units, and associated amenities, all as further described herein. E. The Agency's disposition of the Property to the Developer, and the Developer's subsequent construction, completion and operation of the "Project" (as that term is defined in Section 100 below) thereon, pursuant to the terms of this Agreement, are in the vital and best interest of the City of La Quinta and the health, safety and welfare of its residents, and in accord with the public purposes and provisions of applicable federal, state, and local laws and requirements. NOW, THEREFORE, the Agency and Developer hereby agree as follows: 100. DEFINITIONS "Agency" means the La Quinta Redevelopment Agency, a public body, corporate and politic, exercising governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California, Health and Safety Code, Section 33000, et seq., and any assignee of or successor to its rights, powers and responsibilities. "Agency's Conditions Precedent to Closing" means the conditions precedent to a Closing to the benefit of Agency, as set forth in Section 205.1 hereof. 882/015610-0084 737414 08 a02/26/07 "Agreement" means this Disposition and Development Agreement between the Agency and the Developer. "Assignment and Assumption Agreement" shall have the meaning ascribed in Section 703.3 hereof. "Authorized Manager" is defined in Section 502. "Best Knowledge" or "Actual Knowledge" means, for purposes of a representation or warranty given hereunder, that such party has conducted a reasonable review of its files and has made reasonable inquiry of its employees and agents responsible for the acquisition, development and disposition of the Black Box Parcel, the Boutique Hotel Parcel, the Ranch Villas Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the Resort Retail Village Parcel, or the Golf Casitas Parcel. "Black Box" means a multi -purpose theater, cinema, or conference hall building, containing approximately 7,000-7,500 square feet, with theater capacity for approximately 250- 300 persons, and required parking, as further described in the Specific Plan, Scope of Development, and Development Agreement. "Black Box Parcer' means that certain real property designated as Lot 4 on the Parcel Map, The Black Box Parcel is comprised of approximately .78 acres. "Boutique Hoter' means the component of the Project that consists of Developer's construction and subsequent operation of an intimate, Four -Star Quality hotel containing no more than two hundred twenty-five (225) Units, a sit-down restaurant that serves up to 80 persons concurrently inside and up to 40 persons concurrently outside, a first-class spa and fitness facility, a pool, at least ten thousand square feet (10,000 sf) of interior meeting space, a parking structure containing at least one hundred fifty (150) parking spaces, and other related amenities, all as further described in the Scope of Development and Specific Plan. Developer shall develop the Boutique Hotel on the Boutique Hotel Parcel. "Boutique Hotel Parcer' means that certain real property designated as Lot 19 on the Parcel Map. The Boutique Hotel Parcel is comprised of approximately 13.79 acres. The Boutique Hotel Parcel may be subdivided into two or more legal parcels after the Effective Date. In such event, when used herein, the term `Boutique Hotel Parcel" shall refer to all such legal parcels. "Boutique Hotel Parcel Easement" is defined in Section 313 hereof. "Boutique Hotel Parcel Pipeline" is defined in Section 313 hereof. "Casita Unit" means a Unit that is not located in a main hotel building. "City" means the City of La Quinta, a California municipal corporation. "City Declaration of CC&Rs" means a Declaration of Covenants, Conditions and Restrictions substantially in the form attached to the Development Agreement as Exhibit "E". 8821015610-0084 737414 08 a02/26/07 -2- "Closing" means the close of escrow for the conveyance from the Agency to the Developer of one or more Parcels as set forth in Section 202.5 hereof. "Closing Date" means the date Escrow closes for the conveyance from the Agency to the Developer of one or more Parcels as set forth in Section 202.5 hereof. "Completion of Construction Date" is defined in Section 304 hereof. "Condition of Property Title" is defined in Section 203 hereof. "Condominium Hotel Unit" means a Unit which is sold to a third party owner, but which, when not in use by such owner, is part of the inventory of rooms available for transient occupancy within the Project. "Contractor Bonds" means payment and performance bonds ensuring the completion of a subcontractor's work in a Phase of Development. "Default" means the failure of a party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and opportunity to cure, as set forth in Section 601 hereof. "Deposit Payment" or "Deposit Payments... is defined in Section 208 hereof. "DesignlConstruction Development Drawings" means those plans and drawings to be submitted to the City with respect to the development of each Phase of Development, as set forth in Section 302 hereof. "Developer" means LDD SilverRock, LLC, a Delaware limited liability company, and its successors and assigns. "Developer CC&Rs" is defined in Section 310 hereof. "Developer Representatives" means, collectively, Developer's managers, directors, engineers, analysts, officials, employees, agents, contractors, representatives, attorneys, advisers, and consultants, including an Environmental Consultant. "Developer's Conditions Precedent to Closing" means the conditions precedent to a Closing to the benefit of Developer, as set forth in Section 205.2. "Development Agreement" means the Development Agreement, substantially in the form attached hereto and incorporated herein as Attachment No. 6, which Developer and City are required to execute as a condition to the effectiveness of this Agreement. "DHR" means Destination Hotels & Resorts, Inc., a California corporation. "Effective Date" means the date inserted into the Preamble hereof, which is the date this Agreement becomes effective. 882/015610-0084 _ 737414 08 a02/26/07 _3 "Environmental Consultant" means a consultant engaged by Developer, at Developer's sole cost and expense, which conducts the environmental investigations of the Property pursuant to Section 207.2 hereof. "Escrow" is defined in Section 201 hereof. "Escrow Agent" is defined in Section 202 hereof. "Evidence of Financial Capability" means evidence reasonably satisfactory to Agency's Executive Director that Developer has the financial resources necessary for the acquisition of each Parcel and the subsequent development of each respective Phase of Development, as further described in Section 311. "Fee Transfer Release Date" is defined in Section 703.1. "FIRPTA" means the Foreign Investment in Real Property Transfer Act. "Four Star Quality" means that the applicable Phase of Development provides all of the services, amenities and facilities listed on Attachment No. 12, which is attached hereto and incorporated herein by this reference. "Fractional Unit" means a Unit that is either (a) a condominium, the ownership of which is divided into multiple fractional interests, including, without limitation, timeshare interests, each of which can be owned by separate owners or by the same owner, and each of which gives such owner the right to use such Unit for a different period of time; or (b) a Unit that is owned in fee by the Developer, Developer's successor in interest, DHR, or a successor in interest that is authorized or permitted pursuant to Section 703.2 hereof, and in which memberships are sold to third parties giving such parties the right to use and occupy the Unit for certain periods of time. "Golf Casitas Development" means the component of the Project that consists of Developer's construction and subsequent operation of approximately seventy-two (72) Casita Units. Developer shall develop the Golf Casitas Development on the Golf Casitas Parcel, in conformance with the Scope of Development and Specific Plan. "Golf Casitas Parcel" means that certain real property designated as Lot 11 on the Parcel Map. The Golf Casitas Parcel is comprised of approximately 8.63 acres. "Good Funds" means a confirmed wire transfer of immediately available funds, cashier's or certified check drawn on or issued by the office of a financial institution located in Riverside County, or cash. "Governmental Requirements" means all laws, ordinances, statutes, codes, rules, regulations, orders and decrees of the United States, the State of California, the County of Riverside, the City, or any other political subdivision in which the Property, or any portion thereof, is located, and of any other political subdivision, agency or instrumentality exercising jurisdiction over the Developer, and/or the Property, or any portion thereof. '82/015610-0084 737414 08 02/26/07 -4- "Grant Deed" means a grant deed, substantially in the form attached hereto and incorporated herein by this reference as Attachment No. 41 pursuant to which Agency shall convey to Developer title to one or more Parcels. "Hazardous Materials" means any substance, material, or waste which is, or becomes, regulated by any local or regional governmental authority, the State of California, or the United States Government, including, but not limited to, any material or substance which is (i) defined as a "hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls, (viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq. "Hotel Unit" means the Units in the Project that will be owned in fee by Developer or any successor authorized pursuant to Section 703 hereof and managed by DHR or any successor hotel management entity authorized or approved by the Agency pursuant to Section 703 hereof. None of the Hotel Units may be sold as Condominium Hotel Units or as Fractional Units. "Initial Escrow" is defined in Section 201.2. "Initial Purchase Price" means the fair market value of each Parcel as of the Effective Date. The Initial Purchase Price for each Parcel is set forth in Attachment No. 3. "Lake Casitas Development" means the component of the Project that consists of Developer's construction and subsequent operation of approximately fifty (50) Casita Units. Developer shall develop the Lake Casitas Development on the Lake Casitas Parcel in conformance with the Scope of Development and Specific Plan. "Lake Casitas Parcer' means that certain real property designated as Lot 23 on the Parcel Map. The Lake Casitas Parcel is comprised of approximately 3.82 acres. "Land Use Approvals" is defined in Section 302.5. "Lock -Off Feature" means a feature that enables one of the bedrooms/bathrooms in a Unit to be closed off from the remainder of the Unit and rented as a separate Unit. 8'2/015610-0084 737414 08 a02/26/07 _5_ "Lowe Enterprises" means Lowe Enterprises, Inc., a California corporation, which is an affiliate of Developer. "Management Transfer" is defined in Section 703.2. "Management Transfer Release Date" is defined in Section 703.2. "Memorandum of DDA" means the Memorandum of Disposition and Development Agreement substantially in the form attached hereto and incorporated herein as Attachment No. 10. "Notice" means a notice in the form prescribed by Section 701 hereof. "Option Agreement" means the Option Agreement substantially in the form attached hereto and incorporated herein as Attachment No. 7. The Option Agreement shall be recorded against each Parcel at the Close of Escrow that includes such Parcel. "Outside Date for Closing" means the last date Escrow may close for the conveyance from Agency to Developer of each Parcel. The Outside Date for Closing is referenced in Section 202.5 hereof and the Outside Date for Closing for each Parcel is set forth in the applicable Schedule of Performance for each Parcel. "Parcel" means any of the following: Black Box Parcel, Boutique Hotel Parcel, Golf Casitas Parcel, Lake Casitas Parcel, Ranch Villas Parcel, Resort Hotel Parcel, or Resort Retail Village Parcel. The term "Parcels" means all of the Parcels described in the immediately preceding sentence. "Parcel Map" means Parcel Map No. 33367, which has been prepared by the Agency. The Parcel Map shall be recorded prior to or concurrently with the first Closing hereunder. A copy of the Parcel Map is attached hereto and incorporated herein as Attachment No. 11. "Performance Default Amount" is defined in Section 502. "Phase of Development" means any of the following components of the Project: Black Box, Boutique Hotel, Golf Casitas Development, Lake Casitas Development, Ranch Villas Development, Resort Hotel, or Resort Retail Village Development. "Phase of Development Owner" is defined in Section 502. "Phase One of Boutique Hotel" is defined in Section 201.2. "Phase One of Resort Hotel" is defined in Section 201.4. "Preliminary Title Report" means the preliminary title report issued by the Title Company that covers the Property, as described in Section 203. "Project" means the commercial development to be constructed on the Property that consists of the Black Box, the Boutique Hotel, the Golf Casitas Development, the Lake Casitas 882/015610-0084 737414 08 a0226/07 _6" Development, the Ranch Villas Development, the Resort Hotel, and the Resort Retail Village Development. "Project Area" means the La Quinta Redevelopment Project Area No. 1, adopted by the City pursuant to the Redevelopment Plan. "Property" means that approximately 58.97 acres of real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253. The Property is legally described in the Property Legal Description and depicted in the Site Map. "Property Environmental Reports" means the collective environmental investigations of the Property conducted pursuant to Section 207.2 hereof. "Property Exceptions" is defined in Section 203. "Property Legal Description" means the description of the Property which is attached hereto as Attachment No. 1 and incorporated herein by this reference. "Purchase Price" means the price to be paid by Developer to the Agency in consideration of the Agency's conveyance to Developer of fee title to a Parcel. The Purchase Price is referenced in Section 202.2 hereof. The Purchase Price for each Parcel shall be determined as set forth in Attachment No. 3 hereto. "Ranch Villas Development" means the component of the Project that consists of Developer's construction and operation of approximately fifty (50) Casita Units. Developer shall develop the Ranch Villas Development on the Ranch Villas Parcel in compliance with the Scope of Development and Specific Plan. "Ranch Villas Parcel" means that certain real property designated as Lot 22 on the Parcel Map. The Ranch Villas Parcel is comprised of approximately 2.43 acres. "Redevelopment Plan" means the Redevelopment Plan for the Project Area, adopted on November 29, 1983, by Ordinance No. 43, of the City Council of the City of La Quinta, which Redevelopment Plan is incorporated herein by reference. "Release of Construction Covenants" means the document which evidences the Developer's satisfactory completion of a Phase of Development, as set forth in Section 310 hereof, substantially in the form of Attachment No. 8 hereto which is incorporated herein by this reference. "Resort Hoter' means the component of the Project that consists of Developer's construction and operation of a Four Star Quality or higher luxury hotel containing approximately Two hundred eighty-three (283) Units, with associated amenities, including, but not limited to, a sit-down restaurant that serves up to 100 persons concurrently inside and up to 60 persons concurrently outside, a first-class spa and fitness center, a parking structure containing not fewer than one hundred fifty (150) parking spaces, pools, and at least twenty thousand square feet (20,000 sf) of interior meeting space, all as further described in the Scope of 882/015610-0084 737414 08 a02/26/07 -7- Development and Specific Plan. At least ninety (90) of the Units in the Resort Hotel shall be Hotel Units. Developer shall develop the Resort Hotel on the Resort Hotel Parcel. "Resort Hotel Parcel" means that certain real property designated as Lot 3 on the Parcel Map. The Resort Hotel Parcel is comprised of approximately 19.65 acres. "Resort Retail Village Development" means the component of the Project that consists of Developer's construction and subsequent operation of approximately eighty-one thousand square feet (81,000 sf) of space, with approximately forty thousand square feet (40,000 sf) of such space developed for and dedicated to retail uses, fifteen thousand square feet (15,000 sf) of such space developed for and designated to restaurant use, and twelve thousand square feet (12,000 sf) of such space to be developed for and dedicated to residential uses, all as further described in the Scope of Development and Specific Plan. Developer shall develop the Resort Retail Village Development on the Resort Retail Village Parcel. "Resort Retail Village Parcel" means that certain real property designated as Lot 5 on the Parcel Map. The Resort Retail Village Parcel is comprised of approximately 11.88 acres. "Resort Retail Village Parcel Ground Lease" means the form of ground lease pursuant to which (i) the City contemplates leasing to Developer the Resort Retail Village Parcel if the Agency conveys its fee interests in such Parcel to the City; or (ii) the Agency contemplates leasing to Developer the Resort Retail Village Parcel if the Agency elects not to convey its interests in such Parcel to the City but instead elects to enter into the Resort Retail Village Parcel Ground Lease with Developer and to subsequently assign its interests in said ground lease to the City. As further provided herein, nothing herein shall be deemed a predetermination by Agency with respect to the Resort Retail Village Parcel, and Agency retains complete and unfettered discretion to elect either of the options set forth in clauses (i) and (ii) above or, alternatively, to sell such Parcel to Developer. The form of the Resort Retail Village Parcel Ground Lease shall be acceptable to the Agency and to Developer in each of their sole and absolute discretion. Notwithstanding the foregoing, however, the parties' failure to reach agreement on the form of the Resort Retail Village Parcel Ground Lease shall not give rise to any right of the Developer to purchase the Resort Retail Village Parcel, and in the event of such failure, the Agency shall retain complete and unfettered discretion with respect to the disposition of such Parcel. "Schedule of Performance" means the Schedule of Performance attached hereto and incorporated herein as Attachment No. 9, setting out the dates and/or time periods by which certain obligations set forth in this Agreement must be accomplished. "Scope of Development" means the Scope of Development attached hereto and incorporated herein as Attachment No. 5, which describes the scope, amount and quality of development of the Project to be constructed by the Developer pursuant to the terms and conditions of this Agreement. "SilverRock Resort Area" means the real property included in and covered by the Specific Plan. "Site Map" means the map of the Property, which is attached hereto as Attachment No. 2 and incorporated herein by this reference. 882/015610-0084 737414 08 a02/26/07 -g- "Specific Plan" means the SilverRock Resort Specific Plan, which was approved by the City Council of the City on July 18, 2006. Developer's development and operation of the Project shall be in strict conformance with the Specific Plan. In the event this Agreement is inconsistent with the Specific Plan, the terms of the Specific Plan shall prevail. "Title Company" is defined in Section 203 hereof. "Title Policy" is defined in Section 204 hereof. "Transfer" is defined in Section 703.1 hereof. "Unit" means one of the approximately six hundred eighty (680) units designed for overnight occupancy comprising the Project. All Units shall be developed as Condominium Hotel Units, Fractional Units, and/or Hotel Units, and all such development shall be in accordance with the requirements of the Specific Plan. "Updated Report" means an update to the Preliminary Title Report, as described in Section 203 hereof. 200. CONVEYANCE OF THE PROPERTY 201. Disposition of the Property. Developer agrees to purchase the Property from the Agency, and the Agency agrees to sell to the Developer the Property, in accordance with and subject to all of the terms, covenants, and conditions of this Agreement. The Purchase Price for the Boutique Hotel Parcel and the Initial Purchase Price for each of the remaining individual Parcels is set forth in Attachment No. 3 hereof. Developer shall be entitled to purchase the Parcels, and commence construction thereon of the applicable Phase of Development, in the order set forth in this Section 201; provided, however, that nothing herein is intended to permit Developer to elect not to purchase any or all of the Parcels. Notwithstanding anything herein to the contrary, each conveyance by Agency to Developer of one or more Parcels shall be effected through an escrow ("Escrow") in accordance with the provisions of Section 202 hereto. With the exception of the "Initial Escrow" (as that term is described in paragraph (a) below), which shall be opened within the time set forth in the Schedule of Performance, each such Escrow shall be opened within the time reasonably required to affect each applicable conveyance, as set forth in the Schedule of Performance. 201.1 The Initial Escrow. Within the time set forth in the Schedule of Performance, Developer and Agency shall open an escrow for Agency's conveyance to Developer of the Boutique Hotel Parcel (the "Initial Escrow"). Notwithstanding the use of the term "Initial Escrow" in this Section 201.1, all of the general requirements for each Escrow, as set forth in Section 202, shall apply to the Initial Escrow, and each reference to an "Escrow" in this Agreement shall be deemed to include the Initial Escrow. 201.2 The Second Escrow. Upon Developer's (i) completion and opening of, and receipt of a temporary or final certificate of occupancy for, the core operating facilities of the Boutique Hotel, including, without limitation, the lobby, guest check -in area and facilities, administration, restaurant, and pool; and (ii) completion of (including furnishings), and receipt of 882/015610A084 7374M 08 a02/26/07 -9_ a temporary or final certificate of occupancy for, fifty percent (50%) of the Units to be developed in the Boutique Hotel, with all of such completed Units operational and made available for rental, all as determined by City's Community Development Director and Director of Building and Safety, Developer shall have the right to purchase the Resort Hotel Parcel, the Black Box Parcel, and the Resort Retail Village Parcel. The obligations set forth in clauses (i) and (ii) above shall be collectively referred to as "Phase One of Boutique Hotel." Notwithstanding anything to the contrary in this Agreement, (A) Agency's Board of Directors may, in its sole and absolute discretion, elect to (1) convey the Resort Retail Village Parcel to the City for the City's subsequent lease of such Parcel to Developer, or (2) lease such Parcel to Developer and subsequently assign its leasehold interests to the City; and (B) Developer shall acquire fee title to or a leasehold interest in (as applicable) the Resort Retail Village Parcel within one (1) year after Developer's acquisition of the Resort Hotel Parcel. In the event Agency elects to lease the Resort Retail Village Parcel to Developer or to convey such Parcel to the City, such lease or conveyance shall occur at the same time designated in this Section 201.2 for the Agency's conveyance of the Resort Retail Village Parcel to Developer. The terms of the Resort Retail Village Parcel Ground Lease shall govern the leasehold transaction between the City and Developer or between the Agency and Developer (as applicable). 201.3 The Third Escrow. Upon Developer's (i) acquisition of the Boutique Hotel Parcel, the Resort Hotel Parcel, and the Resort Retail Village Parcel; (ii) satisfaction of all of the requirements of the Initial Escrow, as set forth in Section 201.1 above; (iii) completion of the Boutique Hotel; and (iv) completion of the second floor deck structure at the Resort Hotel, all as determined by City's Community Development Director and Director of Building and Safety, Developer shall have the right to purchase the Lake Casitas Parcel. Notwithstanding anything to the contrary in this Agreement, no certificate of occupancy shall be issued for any Unit in the Lake Casitas Development until a temporary or final certificate of occupancy for the core operating facilities of the Resort Hotel, including, without limitation, the lobby, guest check -in area and facilities administration, restaurant, and pool has been issued and the foregoing core facilities are open. 201.4 The Fourth Escrow. Upon Developer's (i) acquisition of the Lake Casitas Parcel; (ii) satisfaction of the requirements for the Initial Escrow, as set forth in Section 201.1 above; (iii) satisfaction of the requirements for the Third Escrow, as set forth in Section 201.3 above; (iv) completion of the Boutique Hotel; (v) completion and opening of, and receipt of a temporary or final certificate of occupancy for, the core operating facilities of the Resort Hotel, including, without limitation, the lobby, guest check -in area and facilities, administration, restaurant, and pool; and (vi) completion of, and receipt of a temporary or final certificate of occupancy for, fifty percent (50%) of the Units to be developed in the Resort Hotel and fifty percent (50%) of the Units to be developed in the Lake Casitas Development, with all of such completed Units operational and made available for rental, Developer shall have the right to purchase the Golf Casitas Parcel. The obligations set forth in clauses (v) and (vi) above shall be collectively referred to as "Phase One of Resort Hotel." 201.5 The Ranch Villas Escrow. Within the time set forth in the Schedule of Performance, Developer shall have the right to purchase the Ranch Villas Parcel. "2/0I561 M084 737414 08 a02/26/07 -10- 201.6 Executive Director Discretion Regarding_ Phasing. Notwithstanding any of the foregoing, Agency's Executive Director shall have the authority, in his or her sole and absolute discretion, to permit Developer to purchase any or all of the Resort Hotel Parcel, Lake Casitas Parcel, and the Golf Casitas Parcel at any time if Agency's Executive Director determines that Developer has the necessary financial resources to develop such Phase(s) of Development earlier than scheduled, and that permitting such early acquisition is in the best interests of the Agency and the Project. 202. Escrow. The parties shall open each Escrow with First American Title Company, at its office located at 3625 Fourteenth Street, Riverside, California 92502-0986, or another escrow company mutually satisfactory to both parties (the "Escrow Agent"). 202.1 Costs of Escrow. (i) Agency shall pay the premium attributable to the ALTA standard form policy of title insurance for the Property or the applicable Parcel(s), as set forth in Section 204 hereof, (ii) Developer shall pay for any extended policy, coverages, or endorsements requested by Developer, as set forth in Section 204 hereof, (iii) Agency shall pay for the documentary transfer taxes, if any, due with respect to the conveyance of the Property or said Parcel(s), as applicable, and (iv) Developer and Agency each agree to pay one-half of all other usual fees, charges, and costs which arise from the Escrow. Due to Agency's status as a public entity, the parties do not anticipate that any recording fees will be charged in connection with any of the Escrows. Notwithstanding the foregoing, however, to the extent recording fees are charged or imposed, Developer shall pay all of such fees. 202.2 Payment of Purchase Price. On or before 5:00 p.m. on the business day preceding the applicable Closing Date (or such earlier time as required by Escrow) for a Parcel, Developer shall deposit with Escrow Agent the applicable Purchase Price in Good Funds, and such additional funds as may be required to meet Developer's portion of the closing costs as hereinafter provided; provided, however, that if Agency elects to lease the Resort Retail Village Parcel to Developer or to City rather than selling such Parcel to Developer, Developer shall not be required to pay to Agency the Purchase Price for the Resort Retail Village Parcel. In that event, Developer's financial obligations with respect to acquiring a leasehold interest in and to such Parcel shall be to pay to City or Agency (as applicable) any and all sums required under the Resort Retail Village Parcel Ground Lease. Notwithstanding that the "Closing" for the Resort Retail Village Parcel may not result in a fee conveyance to Developer, such "Closing" shall not occur until all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing as set forth in Section 205 have been satisfied or waived by the respective parties. 202.3 Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency for each Escrow described herein, and the Escrow Agent to whom instructions are delivered is hereby empowered to act under this Agreement. Insurance policies for fire or casualty are not to be transferred, and Agency will cancel its own policies after the applicable Closing. All funds received in the Escrow shall be deposited with other escrow funds in a general escrow account(s) and may be transferred to any other such escrow trust account in any State or National Bank doing business in the State of California. All disbursements shall be made by check from such account. 882/015610-0084 -11- 737414 08 a02/26/07 If in the opinion of either party and/or the construction lender it is necessary or convenient in order to accomplish the Closing of the Property, or of any of the Parcels, such party may require that the parties sign supplemental escrow instructions; provided that if there is any inconsistency between this Agreement and the supplemental escrow instructions, then the provisions of this Agreement shall control. The parties agree to execute such other and further documents as may be reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement. Each Closing hereunder shall take place within thirty (30) days after the date when both the Agency's Conditions Precedent to the Closing and the Developer's Conditions Precedent to the Closing as set forth in Section 205 have been satisfied or waived by the respective parties. Escrow Agent is instructed to release Agency's escrow closing and Developer's escrow closing statements to the respective parties. 202.4 Authority of Escrow Agent. At each Closing, Escrow Agent is authorized to, and shall: (a) Pay and charge Developer and Agency for their respective shares of the premium of the applicable Title Policy and any endorsements thereto as set forth in Section 204 and any amount necessary to place title in the condition necessary to satisfy Section 203 of this Agreement. (b) Pay and charge Developer and Agency for their respective shares of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement. (c) Disburse funds, deliver one or more executed Option Agreement(s) to the Agency, and deliver and record the applicable Grant Deed(s) and the applicable Option Agreement(s) when both the Developer's Conditions Precedent to the Closing and the Agency's Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency. (d) At the Closing for the Initial Escrow only, deliver the executed Development Agreement and Memorandum to the Agency, and deliver and record the Development Agreement and Memorandum when both the Developer's Conditions Precedent to the Closing and the Agency's Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency. (e) Do such other actions as necessary, including obtaining the applicable Title Policy, to fulfill its obligations under this Agreement. (f) Within the discretion of Escrow Agent, direct Agency and Developer to execute and deliver any instrument, affidavit and statement, and to perform any act reasonably necessary to comply with the provisions of the Foreign Investment in Real Property Transactions Act ("FIRPTA") and any similar state act and regulation promulgated thereunder. Agency agrees to execute a Certificate of Non -Foreign Status by individual transferor and/or a Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent. (g) Prepare and file with all appropriate governmental or taxing authorities a uniform settlement statement, closing statement, tax withholding forms including an 882/015610-0084 737414 08 a02/26/07 -12- IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or required by law. 202.5 Closing. Each transaction shall close ("Closing") within thirty (30) days after the parties' satisfaction of all of Agency's Conditions Precedent to the Closing and all of the Developer's Conditions Precedent to the Closing as set forth in Section 205 hereof, but in no event later than the applicable Outside Date for Closing, which is set forth in the Schedule of Performance for the applicable Phase of Development. The Outside Date for Closing for each Parcel may be extended for up to six (6) months, by mutual agreement of the Executive Director of the Agency and Developer. Subject to the provisions in this Section 202.5, Closing shall occur at a time reasonably agreed on by the parties. A "Closing" shall mean the time and day the applicable Grant Deed(s) is recorded with the Riverside County Recorder. A "Closing Date" shall mean the day on which the applicable Closing occurs. 202.6 Termination. If an Escrow is not in condition to close by the applicable Outside Date for Closing, then either party which has fully performed under this Agreement may, in writing, demand the return of money or property and terminate such Escrow. If either party makes a written demand for return of documents or properties, the Escrow shall not terminate until ten (10) business days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. If any objections are raised within said ten (10) business day period, Escrow Agent is authorized to hold all papers and documents until instructed by a court of competent jurisdiction or by mutual written instructions of the parties. Developer, however, shall have the sole option to withdraw any money deposited by it with respect to the Closing less Developer's share of costs of the Escrow and cancellation fees. Termination of said Escrow shall be without prejudice as to whatever legal rights either party may have against the other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed with the applicable Closing as soon as possible. 202.7 Closing Procedure. Escrow Agent shall close each Escrow as follows: (a) (i) Record, in the following order, the applicable Grant Deed(s), the applicable Option Agreement(s), the applicable City Declaration of CC&Rs, the Memorandum of DDA (at the Initial Escrow only), the applicable Maintenance Agreement, the applicable Water Agreement, and deeds of trust and other security instruments securing Developer's acquisition and construction financing, and (ii) deliver conformed copies of each of the documents listed in clauses (i) above, showing recording information to Agency and Developer; (b) Provide for the delivery of the original recorded Option Agreement(s), City Declaration of CC&Rs, Maintenance Agreement, Water Agreement, and, at the Initial Escrow only, the Memorandum of DDA, to the Agency with a copy to Developer; (c) Deliver the applicable Title Policy and Grant Deed(s) to Developer, 882/015610-0084 737414 08 a02/26/07 -13- (d) File any informational reports required by Internal Revenue Code Section 6045(e), as amended and any other applicable requirements; and (e) Deliver the FIRPTA Certificate, if any, to Developer; and (f) Forward to both Developer and Agency a separate accounting of all funds received and disbursed for each party and copies of all executed and recorded or filed documents deposited into the Escrow, with such recording and filing date and information endorsed thereon. 203. Review of Title of Property_. The Agency shall cause First American Title Insurance Company, or another title company mutually agreeable to both parties (the "Title Company"), to deliver to Developer a standard preliminary title report dated no earlier than the Effective Date (the "Preliminary Title Report") with respect to the title to the Property, together with legible copies of the documents underlying the exceptions ("Property Exceptions") set forth in the Preliminary Title Report, within thirty (30) days after the Effective Date. The Developer shall have the right to approve or disapprove the Property Exceptions and any proposed encumbrances to the Property in the exercise of its sole discretion; provided, however, that the Developer hereby approves the following Property Exceptions: (a) The Redevelopment Plan. (b) The lien of any non -delinquent property taxes and assessments (to be prorated at close of each respective Escrow. (c) All documents to be recorded at the close of the applicable Escrow. Developer shall have thirty (30) days after the later of (i) the date of its receipt of the Preliminary Title Report, or (ii) the date Developer receives the documents underlying the Property Exceptions to give written notice to Agency and Escrow Holder of Developer's approval or disapproval of any of such Property Exceptions. Developer's failure to give written approval of the Preliminary Title Report within such time limit shall be deemed disapproval of the Preliminary Title Report. If Developer notifies Agency of its disapproval of any Property Exceptions in the Preliminary Title Report or is deemed to have disapproved the Preliminary Title Report, Agency shall have the right, but not the obligation, to remove any disapproved Property Exceptions within thirty (30) days after (a) receiving written notice of Developer's disapproval or (b) the date Developer is deemed to have disapproved the Preliminary Title Report, or provide assurances satisfactory to Developer that such Property Exception(s) will be removed on or before the applicable Closing. If Agency cannot or does not agree to remove any of the disapproved Property Exceptions before the applicable Closing, Developer shall have fifteen (15) days after the expiration of such thirty (30) day period to either give the Agency written notice that Developer elects to proceed with the purchase of the Property subject to the disapproved Property Exceptions or to give the Agency written notice that the Developer elects to terminate this Agreement. Developer's failure to give written notice of its election within such fifteen (15) day period shall be deemed to be an election not to proceed with the purchase of the Property. Anything herein to the contrary notwithstanding, Agency shall remove from title all monetary encumbrances other than the lien referred to in (b) above in this Section 203. The '82/015610-0084 737414 08 .02/26/07 -14- condition of title, including all of the Property Exceptions to title approved by Developer as provided herein shall hereinafter be referred to as the "Condition of Property Title". From and after the Effective Date hereof, and continuing until the earlier of (i) the Close of Escrow for the last portion of the Property Developer intends to acquire from Agency, or (ii) termination of this Agreement, Agency shall not further encumber the Property with additional Property Exceptions without the Developer's prior written consent; provided, however, that Agency's election to convey the Resort Retail Village Parcel to the City shall not be construed as a Property Exception and shall be expressly permitted hereunder. Developer shall have the right to approve or disapprove any further Property Exceptions (which are not created by Developer) reported by the Title Company after Developer has approved the Condition of Property Title. Developer and the Executive Director of the Agency, on behalf of the Agency, shall have the authority to extend the foregoing fifteen (15) day period by written agreement for an additional fifteen (15) days. 204. Title Insurance. Concurrently with recordation of the applicable Grant Deed(s) conveying title to one or more of the Parcels, there shall be issued to Developer an ALTA standard owner's policy of title insurance (the "Title Policy"), together with such endorsements as are reasonably requested by the Developer, issued by the Title Company insuring that the title to the applicable Parcel is vested in Developer in the Condition of Property Title approved by Developer pursuant to Section 203 of this Agreement (except that such Title Policy shall only reflect the applicable Parcel and the Property Exceptions applicable thereto). Agency shall pay the title insurance premium attributable to the ALTA standard owner's form policy of title insurance up to the Purchase Price for the applicable Parcel. The Title Company shall, if requested by Developer, increase the amount of the title insurance policy or provide the Developer with an extended policy, coverages, or endorsements. Developer shall pay the portion of the premium associated with such extended or additional coverages or endorsements, and the costs of preparation of a current survey of the Property, if requested by Developer. The Title Company shall provide the Agency with a copy of the Title Policy. 205. Conditions of Closing. Each Closing is conditioned upon the satisfaction of the following terms and conditions within the times designated below: 205.1 Agency's Conditions of Closing. Agency's obligation to proceed with each Closing is subject to the fulfillment or waiver by Agency of each and all of the conditions precedent (a) through (x), inclusive, described below ("Agency's Conditions Precedent to the Closing"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by the time periods provided for herein: (a) No Default. Prior to the close of each Escrow, neither Developer nor any entity that has assumed the Developer's or DHR's obligations hereunder with respect to the development and/or operation of one or more Phases of Development shall be in default of any of its obligations under the terms of this Agreement and all representations and warranties of Developer contained herein shall be true and correct in all material respects. (b) Execution of Documents. Developer shall have executed and delivered into the Escrow the applicable Grant Deed(s), the applicable Option Agreement(s), the applicable City Declaration of CC&Rs, the applicable Maintenance Agreement, the applicable Water Agreement, and any other documents required hereunder, and, at the Initial Escrow only, 882/015610-0084 -15- 737414 09 a02/26/07 the Memorandum of DDA. The Development Agreement shall have been fully executed and recorded in the Official Records of Riverside County. (c) Payment of Funds. Prior to each Closing, Developer shall have paid all of its required costs of the Closing into the applicable Escrow in accordance with Section 202 hereof. (d) Design Approvals. Developer shall have obtained approval by the City of the Design/Construction Development Drawings for the Phase of Development applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof. (e) Phasing Requirements. All of the conditions and requirements described in Section 201.2. 201.3, and 201.4 that are applicable to the Escrow have been satisfied. (f) City Declaration of CC&Rs. Prior to each Closing that includes a Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer shall have entered into with the City and recorded against the underlying Parcel a City Declaration of CC&Rs, the covenants of which shall bind the Parcel and each and every Condominium Hotel Unit, Fractional Unit, and Hotel Unit developed thereon in perpetuity and shall survive the termination of this Agreement and of the Development Agreement. (g) Land Use Approvals. Developer shall have received all Land Use Approvals required for the Phase of Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5 hereof. (h) Insurance. Developer shall have provided proof of insurance as required by Section 304 hereof and Agency shall have approved of the same. (i) Financing. The Agency shall have approved Developer's financing for the Phase of Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 309.1 hereof, and such financing shall close concurrently with the Closing and be available to the Developer upon the Closing. 0) Environmental. The Developer shall have approved the environmental condition of the Property and shall not have elected to terminate this Agreement with respect to the Property pursuant to Section 207.2 hereof. (k) Grading Plans and Permits. Developer shall have obtained City approval of its precise grading plans for the Phase of Development applicable to each Parcel to be acquired at the Closing, and grading permits shall be ready to be issued (on payment of necessary fees, posting of required security, and similar items). (1) Building Plans and Permits. Developer shall have obtained City approval of its building plans for the Phase of Development applicable to each Parcel to be acquired at the Closing, and building permits shall be ready to be issued (on payment of necessary fees, posting of required security, and similar items). 882/015610-0084 737414 08 a02/26/07 -16- (m) Construction Costs and Contract(s). The Developer shall have provided the Agency's housing and economic development consultant, or such other person as the Executive Director may designate, a copy of the proposed contract(s), certified by the Developer to be a true and correct copy thereof, between the Developer and one or more duly licensed general contractors reasonably acceptable to the Agency for the construction of the Phase of Development applicable to each Parcel to be acquired at the Closing. Such proposed contract(s) shall provide for the grading and all of the physical construction of the Phase of Development. No material changes that (i) increase the time for completion of the Phase of Development (unless caused by force majeure), (ii) are inconsistent with the approved site development permit for the Phase of Development, or (iii) reduce the number of Units to be developed for the Phase of Development from the number set forth in the approved site development permit for the Phase of Development shall thereafter be made to such proposed contract(s) without the prior approval of the Agency's housing and economic development consultant or the Executive Manager's designee. Developer shall promptly provide the Agency with copies of all contracts subsequently entered into for completion of the development of the Phase of Development. (n) Performance Bond. The Developer shall have obtained from each subcontractor whose work on a Phase of Development (in the aggregate) will cost $500,000 or more, and delivered to the Agency evidence, in a form satisfactory to Agency, that said subcontractor has obtained lien and completion Contractor Bonds for the completion of such contractor's work in the construction of the Phase of Development applicable to each Parcel to be acquired at the Closing. Said Contractor Bonds shall provide that the Agency is authorized to enforce the same as a third party beneficiary. (o) Permanent Clubhouse. For the Escrow that includes the Ranch Villas Parcel only, the City shall have completed and opened a permanent clubhouse in the SilverRock Resort Area and determined, in its sole and absolute discretion, that the Ranch Villas Parcel is not necessary for use as a temporary clubhouse or cart barn. (p) Operating Agreement. Developer shall have submitted to Agency and Agency shall have approved, an operating agreement with DHR that obligates DHR to operate the Phase of Development at a Four Star Quality or higher, and in accordance with all applicable requirements set forth herein and in the Development Agreement (an "Operating Agreement") (applicable only to Escrows that include the Boutique Hotel Parcel, Ranch Villas Parcel, Resort Hotel Parcel, Lake Casitas Parcel, and/or Golf Casitas Parcel). (q) Deposit Payments. Developer shall have deposited into Escrow all Deposit Payments then due. (r) Water Agreement. Developer shall have entered into a standard Domestic Water and/or Sanitation Installation Agreement with the Coachella Valley Water District ("CVWD"), substantially in the form attached as Exhibit C to that certain Domestic Water and Sanitation System Installation and Irrigation Service Agreement entered into by and between the City and CVWD on or about June 11, 2005, and recorded in the Official Records of the County of Riverside, as Instrument No. 2005-0852063, on June 14, 2005. 882/015610-0084 -17- 737414 09 a0YMM7 (s) Completion Guarantee. Lowe Enterprises has executed a completion guarantee in substantially the form and substance of the completion guarantee provided to Developer's construction lender, in favor of the Agency, for the lien -free completion of construction of the improvements in the applicable Phase of Development for the Project. (t) Maintenance Agreement. Developer shall have entered into a maintenance agreement with the City or Agency regarding maintenance of certain portions of the golf course lakes located or to be located adjacent to the property and certain landscaped parkways, sidewalks, and trails (collectively, the "Public Improvements") all as depicted on Attachment No. 13 hereof which is attached hereto and incorporated herein by this reference (each, a "Maintenance Agreement"). At all Closings subsequent to the Closing for the Boutique Hotel Parcel, the Maintenance Agreement shall be substantially in the form of the Maintenance Agreement executed and recorded at the Closing for the Boutique Hotel Parcel. (u) Signage Agreement. Developer shall have entered into with the City or the Agency (as applicable) a signage agreement (applicable only to the Closings for the Boutique Hotel Parcel, Resort Hotel Parcel, and Resort Retail Village Parcel). Notwithstanding other signage locations to be determined during the site development permit process, the signage agreement for the Boutique Hotel Parcel shall provide for signage along Avenue 52, at the entry point to said Phase of Development, the signage agreement for the Resort Hotel Parcel shall provide for signage on Jefferson Street, at the Resort Hotel entry point; the signage agreement for the Resort Retail Village Parcel shall provide for signage at the corner of Avenue 52 and Jefferson Street, Avenue 54 and Jefferson Street, and Avenue 54, at the entry into the SilverRock Resort Area. (v) Parcel Map. Agency shall have recorded or shall, concurrently with the Closing for the Initial Escrow, record the Parcel Map in the Official Records of Riverside County. (w) Compatibility. Developer shall have delivered to Agency written acknowledgement that the Project is compatible with other development within the Parcel Map. (x) Final Phasing Plan. Developer shall have submitted to Agency's Executive Director and obtained approval therefrom of a final phasing plan for the Phase(s) of Development to be constructed on the Parcel(s) to be conveyed pursuant to the Escrow. 205.2 Developer's Conditions of Closing. Developer's obligation to proceed with the purchase of each Parcel is subject to the fulfillment or waiver by Developer of each and all of the conditions precedent (a) through 0), inclusive, described below ("Developer's Conditions Precedent to the Closing"), which are solely for the benefit of Developer, and which shall be fulfilled or waived by the time periods provided for herein: (a) No Default. Prior to the applicable Closing, Agency shall not be in default of any of its obligations under the terms of this Agreement and all representations and warranties of Agency contained herein shall be true and correct in all material respects. (b) Execution of Documents. Agency shall have executed and delivered into Escrow, the applicable Grant Deed(s), the applicable Option Agreement(s), the 882/015610-0084 737414 08 a02/26/07 -10_ applicable City Declaration of CC&Rs, the applicable Maintenance Agreement, and any other documents required hereunder, and, at the Initial Escrow only, the Memorandum of DDA. The Development Agreement shall have been fully executed and recorded in the Official Records of Riverside County. (c) Review and Approval of Title. Developer shall have reviewed and approved the Condition of Property Title, as provided in Section 203 hereof. (d) Title Policv. The Title Company shall, upon payment of Title Company's regularly scheduled premium, have agreed to provide to the Developer a Title Policy at the applicable Closing, in accordance with Section 204 hereof. (e) Environmental. The Developer shall have approved the environmental condition of the Property and shall not have elected to terminate this Agreement with respect to the Property pursuant to Section 207.2 hereof. (f) Design Approvals. Developer shall have obtained approval by the City of the Design/Construction Development Drawings for the Phase of Development applicable to each Parcel to be acquired at the Closing, as set forth in Section 302 hereof. (g) Land Use Approvals. Developer shall have received all Land Use Approvals required for the Phase of Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5 hereof. (h) Grading and Building Permits. All grading and building permits required for the construction of the Phase of Development applicable to each Parcel to be acquired at the Closing shall be available for issuance upon the payment of applicable permit fees, posting of required security, and similar items. (i) Financing. As provided in Section 311.1 hereof, Developer shall have obtained and the Agency shall have approved Developer's financing for the Phase of Development applicable to each Parcel to be acquired at the Closing, and such financing shall close and be available to the Developer upon the applicable Closing. 0) Parcel Man. Agency shall have recorded or shall, concurrently with the Closing for the Initial Escrow, record the Parcel Map in the Official Records of Riverside County. 206. Studies and Reports. 206.1 Access to Property_. Prior to the Closing for the Initial Escrow, Agency shall provide representatives of Developer the right of access to all portions of the Property for the purpose of obtaining data and making surveys and tests necessary to carry out this Agreement, including without limitation the investigation of the environmental condition of the Property pursuant to Section 207 hereof. Any preliminary work undertaken on the Property by Developer prior to the Closing for the Initial Escrow shall be done at the sole expense of the Developer. In no event shall Developer conduct any intrusive testing procedures on the Property without the prior written consent of Agency, which consent shall not be unreasonably withheld. 882/015610-0084 -19- 737414 08 a02/26/07 Developer shall also have the right to investigate all matters relating to the zoning, use and compliance with other applicable laws, codes, and ordinances which relate to the use and occupancy of the Property. Agency shall cooperate to assist Developer in completing such inspections and special investigations at no cost or expense to Agency other than the time of Agency's personnel and incidental photocopying and like costs. Such inspections and investigations shall be conducted only (a) upon no less than forty-eight (48) hours' notice to Agency, (b) between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, and (c) at such times and in such a manner as to minimize any disruption to the Property. Agency shall have the right, but not the obligation, to accompany Developer during such investigations and/or inspections. As a condition to any such entry, Developer shall (i) conduct all work or studies in a diligent, expeditious and safe manner and not allow any dangerous or hazardous conditions to occur on the Property during or after such investigation; (ii) comply with all applicable laws and governmental regulations; (iii) keep the Property free and clear of all materialmen's liens, lis pendens and other liens arising out of the entry and work performed under this paragraph; (iv) maintain or assure maintenance of workers' compensation insurance (or state approved self- insurance) on all persons entering the property in the amounts required by the State of California; (v) provide to Agency prior to initial entry a certificate of insurance evidencing that Developer and/or the persons entering the Property have procured and have in effect the insurance required by Section 306; and (vi) repair any damage it causes to the Property during the course of such investigations and/or inspections promptly upon completion of the investigations and/or inspections that caused such damage, and restore the Property to the condition existing prior to the investigations and/or inspections, including, without limitation, restabilizing any portions of the Property on which Developer's work removed or caused the removal of the soil stabilizer present on the Property, to the satisfaction of the City's Public Works Director. Any work undertaken pursuant to this Section 206 shall be undertaken only after securing any necessary permits from the appropriate governmental agencies. The Developer's approval of the environmental and soils condition of the Property shall be a Developer's Condition Precedent to the Closing, as set forth in Section 205.2 hereof. If the Developer, based upon the above tests, reports, and review, disapproves the environmental or soils condition of the Property, in its sole and absolute discretion, then the Developer may (x) at its sole cost and with prior written approval of the Agency of any remediation proposal, remediate the Property, or any specific contaminated portion thereof, to an acceptable condition, or (y) terminate this Agreement by written Notice to the Agency pursuant to Section 603 hereof. From and after the Effective Date hereof, and continuing until the earlier of (1) the Close of Escrow for the last portion of the Property Developer intends to acquire from Agency, or (2) termination of this Agreement, Agency shall not take any affirmative action to affect the condition of the Property without the Developer's prior written consent. Agency may revoke the foregoing right of access upon two (2) days written notice to Developer delivered in accordance with Section 701 below in the event: (I) in the reasonable judgment of Agency, such revocation is necessary to protect the public health, safety, or welfare pursuant to the exercise of Agency's police powers; or (II) Developer is in violation of the terms of this Agreement or any applicable law, statute, ordinance, rule, or regulation pertaining to the preliminary work permitted hereunder or Developer's or the Developer Representative's entry upon the Property pursuant to this Agreement, and Developer has failed to cure such violation within two (2) days following Developer's receipt of written notice of such violation from Agency. 882/015610-0084 -20- 737414 08 a02/26/07 206.2 Indemnification. Developer shall protect, defend, indemnify and hold harmless Agency and City and Agency's and City's respective officers, officials, members, employees, agents, and representatives (any of the foregoing shall be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and frorr any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and expert witness fees, but excluding those resulting from environmental contamination of the Property or other defects on the Property existing prior to Developer's entry thereon or not otherwise caused by Developer or any of the Developer Representatives, but including, without limitation, injury to or death of any person or persons and damage to or destruction of any property, threatened, brought or instituted ("Claims"), arising out of or in any manner directly or indirectly connected with the entry upon the Property by Developer or any of the Developer Representatives pursuant to this Section or Section 207, below, including without limitation: (a) any damage to the Property and any liability to any third party incurred by reason of any acts or omission of, including, but not limited to, any commission of any negligent or tortious acts, by Developer or the Developer Representatives, or any of them; (b) any mechanics' or materialmen's liens, claims, demands, actions or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for Developer, or (ii) any activities of Developer or any of the Developer Representatives, or any of them, on or relating to the Property (including, without limitation, any claims by any of such Developer Representatives); and (c) any costs of removing Developer or the Developer Representatives from the Property after the expiration of the term hereof unless Developer is otherwise entitled to possession of the Property at such time. 207. Condition of the Property 207.1 Disclosure. The Agency shall, within the time set forth in the Schedule of Performance, provide to the Developer copies of any environmental studies and reports with respect to the Property of which it has actual knowledge, without any duty of investigation or inquiry. 207.2 Investigation of Property. Pursuant to Section 206 hereof, the Developer may engage an Environmental Consultant to make such investigations as Developer deems necessary, including any "Phase 1" and/or "Phase 2" investigations of the Property, and the Agency shall promptly be provided a copy of all final reports and test results provided by the Environmental Consultant (the "Property Environmental Reports"). The Developer shall be permitted to make such inspections of the Property pursuant to the requirements of Section 206. The Developer shall approve or disapprove of the environmental condition of the Property in the Developer's sole discretion, not later than thirty (30) days prior to the scheduled date for the Closing of the Initial Escrow. The Developer's approval of the environmental condition of the Property shall be one of Agency's Conditions Precedent to the Closing and one of Developer's Conditions Precedent to the Closing, as set forth in Section 205 hereof. If the Developer, based upon the Property Environmental Reports, disapproves the environmental condition of the 882/015610-0084 -21- 737414 08 a02/26/07 Property for any reason, in the Developer's sole discretion, then the Developer may (i) at its sole cost and with prior written approval of the Agency of any remediation proposal, remediate the Property, or any specific contaminated portion thereof, to an acceptable condition, or (ii) terminate this Agreement by written Notice to the Agency pursuant to Section 603 hereof. 207.3 No Further Warranties As To Property: Release of Agency. The physical condition, possession, and title of the Property is and shall be delivered from Agency to Developer in an "AS -IS" "WHERE IS" "WITH ALL FAULTS" condition, with no warranty expressed or implied by Agency, including without limitation, the presence of Hazardous Materials or the condition of the soil, its geology, the presence of known or unknown seismic faults, or the suitability of the Property for the development purposes intended hereunder. Upon the Agency's conveyance of fee title to each Parcel comprising the Property to Developer, Developer shall be deemed to have waived, released and discharged forever the Agency and the City, and their employees, officers, agents, members and representatives, from all present and future claims, demands, suits, legal and administrative proceedings and from all liability for damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any way connected with the condition of such Parcel, any Hazardous Materials on the Parcel, or the existence of Hazardous Materials contamination due to the generation of Hazardous Materials from the Parcel or any other real property, however they came to be placed there, except that arising out of the sole negligence or intentional misconduct of the Agency, the City, or their employees, officers, agents or representatives. The Developer acknowledges that it is aware of and familiar with the provisions of Section 1542 of the California Civil Code which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Only with respect to the condition of the Property as set forth in this Section 207.3, the Developer hereby waives and relinquishes all rights and benefits which it may have under Section 1542 of the California Civil Code. oper's Initials Notwiths ding anything herein to the contrary, the release set forth in this Section 207.3 shall become effective as to the individual Parcels comprising the Property on the date Developer acquires fee title to each of said Parcel(s). 207.4 Developer Precautions After the Closing. Upon the Closing for the one or more Parcels, the Developer shall take all necessary precautions to prevent the release into the environment of any Hazardous Materials which are located in, on or under such Parcels, or placed in, on, or under such Parcel(s) after the Close of Escrow for such Parcel(s). Such precautions shall include compliance with all Governmental Requirements with respect to Hazardous Materials. In addition, the Developer shall install and utilize such equipment and 882/015610-0084 737414 08 a02rz6/07 -22- implement and adhere to such procedures as are consistent with commercially reasonable standards as respects the disclosure, storage, use, removal and disposal of Hazardous Materials. 207.5 Developer Indemnity. Upon the Closing for one or more Parcels, Developer agrees to indemnify, defend and hold Agency harmless from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees), resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge, storage or disposal of any Hazardous Materials on, under, in, or about, or the transportation of any such Hazardous Materials to or from, the Parcel(s) which first occurs after the Closing for such Parcel(s), or (ii) the violation, or alleged violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials on, under, in, or about, or to or from, the applicable Parcel(s) by Developer or by Developer's contractors, subcontractors, agents, consultants, or representatives which occurs after the Closing for such Parcel(s). This indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or proceeding for personal injury (including sickness, disease or death), tangible or intangible property damage, compensation for lost wages, business income, profits or other economic loss, damage to the natural resource or the environment, nuisance, contamination, leak, spill, release or other adverse effect on the environment. At the request of the Developer, the Agency shall cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that the Agency shall not be obligated to incur any expense in connection with such cooperation or assistance. 208. Deposit Payments. Developer shall be required to deposit with Escrow Agent certain payments, to serve as a guarantee of Developer's commitment to develop the Project, in accordance with the schedule set forth in Section 208.1 below (individually, a "Deposit Payment," and collectively, the "Deposit Payments"). 208.1 Schedule of Payments (a) Initial Deposit Payment: Developer shall deposit Eight Hundred Twenty -Five Thousand Dollars ($825,000) (the "Initial Deposit Payment"), with Escrow Agent no later than the thirtieth (30th) day after the Effective Date (the "Initial Deposit Payment Date"); (b) Second Deposit Payment: Developer shall deposit Eight Hundred Twenty -Five Thousand Dollars ($825,000) (the "Second Deposit Payment") with Escrow Agent no later than the one (1) year anniversary of the Initial Deposit Payment Date; (c) Third Deposit Payment: Developer shall deposit Seven Hundred Thousand Dollars ($700,000) (the "Third Deposit Payment") with Escrow Agent no later than the second (2"d) anniversary of the Initial Deposit Payment Date; 882/015610-0084 737414 08 a02/26/07 -23- (d) Fourth Deposit Pam: Developer shall deposit Seven Hundred Thousand Dollars ($700,000) (the "Fourth Deposit Payment") with Escrow Agent no later than the third (3`d) anniversary of the Initial Deposit Payment Date; (e) Fifth Deposit Payment: Developer shall deposit Two Hundred Thousand Dollars ($200,000) (the "Fifth Deposit Payment") with Escrow Agent no later than the fourth (4th) anniversary of the Initial Deposit Payment Date. 208.2 Release of Deposit Payment Funds to Developer. Portions of the funds comprising Deposit Payments shall be released to Developer, to the extent such payments have been made by Developer, to reimburse Developer for costs Developer incurs after the Effective Date for planning, designing, processing entitlements, and environmental review, including staff costs to the extent such costs do not comprise more than thirty-five percent (35%) of the requested disbursement, but not including legal fees and costs, that are related to the Project (the "Eligible Costs"), in accordance with the terms of this Section 208.2. To obtain a disbursement of a portion of the Deposit Payments, Developer shall submit a written request to Agency, which evidences Developer's expenditure of Eligible Costs. Agency shall approve or disapprove, in Agency's reasonable discretion, any such request within twenty-one (21) days after receipt thereof. Within five (5) days after Agency's approval of a written request for disbursement of a portion of the Deposit Payments, Escrow Agent shall release such portion to Developer. (a) Boutique Hotel Portion of the Deposit Payments. Escrow Agent shall pay up to Five Hundred Thousand Dollars ($500,000) from the Initial Deposit Payment, and up to Five Hundred Thousand Dollars ($500,000) from the Second Deposit Payment, to Developer to reimburse Developer for Eligible Costs related to the Boutique Hotel (the "Boutique Hotel Portion of the Deposit Payments"). To the extent Escrow Holder has not paid to Developer all of the Boutique Hotel Portion of the Deposit Payments it has received, pursuant to the process set forth above by the Closing for the Boutique Hotel Parcel, all remaining portions thereof shall be applied towards the Purchase Price for the Boutique Hotel Parcel. (b) Ranch Villas Development Portion of the Deposit Payments. Escrow Agent shall pay up to Twenty -Five Thousand Dollars ($25,000) from the Initial Deposit Payment, and up to Twenty -Five Thousand Dollars ($25,000) from the Second Deposit Payment, to Developer to reimburse Developer for Eligible Costs related to the Ranch Villas Development (the "Ranch Villas Development Portion of the Deposit Payments"). To the extent Escrow Holder has not paid to Developer all of the Ranch Villas Development Portion of the Deposit Payments it has received, pursuant to the process set forth above by the Closing for the Ranch Villas Parcel, all remaining portions thereof shall be applied towards the Purchase Price for the Ranch Villas Parcel (c) Resort Hotel and Lake Casitas Development Portion of the Deposit Payments. Escrow Agent shall pay up to Two Hundred Thousand Dollars ($200,000) from the Initial Deposit Payment, up to Two Hundred Thousand Dollars ($200,000) from the Second Deposit Payment, up to Four Hundred Thousand Dollars ($400,000) from the Third Deposit Payment, and up to the Four Hundred Thousand Dollars ($400,000) from the Fourth Deposit Payment, to Developer to reimburse Developer for Eligible Costs related to the Resort Hotel and the Lake Casitas Development (the "Resort Hotel and Lake Casitas Development Portion of the 882/015610-0084 -24- 737414 08 a02/26/07 Deposit Payments"). To the extent Escrow Holder but has not paid to Developer all of the Resort Hotel and Lake Casitas Development Portion of the Deposit Payments it has received, pursuant to the process set forth above by the Closing for the Resort Hotel Parcel or the Lake Casitas Parcel (whichever occurs earlier), all remaining portions thereof shall be applied towards the Purchase Price for the Resort Hotel Parcel or Lake Casitas Parcel (as applicable). (d) Resort Retail Village Development Portion of the Deposit Payments. Escrow Agent shall pay up to Fifty Thousand Dollars ($50,000) from the Initial Deposit Payment, up to Seventy -Five Thousand Dollars ($75,000) from the Second Deposit Payment, up to One Hundred Fifty Thousand Dollars ($150,000) from the Third Deposit Payment, and up to the One Hundred Fifty Thousand Dollars ($150,000) from the Fourth Deposit Payment, to Developer to reimburse Developer for Eligible Costs related to the Resort Retail Village Development (the "Resort Retail Village Development Portion of the Deposit Payments"). To the extent Escrow Holder has not paid to Developer all of the Resort Retail Village Development Portion of the Deposit Payments it has received, pursuant to the process set forth above by the Closing for the Resort Retail Village Parcel, all remaining portions thereof shall be applied towards (i) the Purchase Price for the Resort Retail Village Parcel, if such Parcel is sold to Developer, or (ii) Developer's initial leasehold payment under the Resort Retail Village Parcel Ground Lease, if such Parcel is leased to Developer; provided, however, that to the extent any portions of the Resort Retail Village Development Portion of Deposit Payments remain after Developer's initial lease payment has been paid to the City or Agency (as applicable), Escrow Agent shall pay such remaining portions to Developer. (e) Golf Casitas Development Portion of the Deposit Payments. Escrow Agent shall pay up to Fifty Thousand Dollars ($50,000) from the Initial Deposit Payment, up to Twenty -Five Thousand Dollars ($25,000) from the Second Deposit Payment, up to One Hundred Thousand Dollars ($100,000) from the Third Deposit Payment, up to the One Hundred Thousand Dollars ($100,000) from the Fourth Deposit Payment, and up to Two Hundred Thousand Dollars ($200,000) from the Fifth Deposit Payment, to Developer to reimburse Developer for Eligible Costs related to the Golf Casitas Development (the "Golf Casitas Development Portion of the Deposit Payments"). To the extent Escrow Holder has not paid to Developer all of the Golf Casitas Portion of the Deposit Payments it has received, pursuant to the process set forth above by the Closing for the Golf Casitas Parcel, all remaining portions thereof shall be applied towards the Purchase Price for the Golf Casitas Parcel. 208.3 Agency Retention of Deposit Payment Funds. Subject to the last sentence in this Section 208.3 and Section 603 below, in the event this Agreement is terminated prior to the Initial Escrow for any reason other than as a result of a Default by the Agency which is not cured within the applicable cure period, Escrow Agent shall, within ten (10) days thereafter, deliver to Agency, and Agency shall be entitled to retain, all unreleased portions of any Deposit Payments delivered to Escrow Agent pursuant to this Section 208. Subject to the last sentence in this Section 208.3 and Section 604 below, in the event the Initial Escrow closes, but a subsequent Escrow fails to close and is terminated for any reason other than as a result of a Default by the Agency which is not cured within the applicable cure period, Escrow Agent shall, within ten (10) days thereafter, deliver to Agency, and Agency shall be entitled to retain, all unreleased portions of the Deposit Payments delivered to Escrow Agent pursuant to this Section 208. In the event this Agreement is terminated by Developer as a result of Developer's inability to make the '82/015610-0084 -25 737414 08 a02/26/07 finding required by Section 205.1(w), Developer shall be entitled to the return of all unreleased portions of any Deposit Payments delivered by Developer to Escrow Agent pursuant to this Section 208. 209. Right of First Offer. Agency hereby grants to Developer a right of first offer to purchase that certain real property designated as Lot 6 on the Parcel Map ("Lot 6") and/or that certain real property designated as Lot 8 on the Parcel Map ("Lot 8"), in accordance with the following terms and conditions ("Developer's Right of First Offer"): (a) Developer shall have the right to exercise Developer's Right of First Offer with respect to each of Lot 6 and Lot 8 at the time Agency has determined to sell the applicable lot for hotel, condominium hotel, or other hospitality or transient use (any of the foregoing, a "Hotel Use") and provided that at the time of "Agency's Sale Notice" (as defined below) Developer and any and all of Developer's successors in interest (other than individual owners of Condominium Hotel Units or Fractional Units) are not then in default under this Agreement, the Development Agreement, or the City Declaration of CC&Rs. (b) Prior to entering into any transaction with a third party concerning the sale of either or both of Lot 6 or Lot 8 for Hotel Use, Agency shall provide Developer with written notice of Agency's intent to sell said lot(s) for Hotel Use and Agency's proposed sale price for the same ("Agency's Sale Notice"). Developer shall have sixty (60) days after receiving Agency's Sale Notice to notify Agency, in writing, of Developer's election to exercise Developer's Right of First Offer to acquire the applicable lot(s) at the price(s) noted in Agency's Sale Notice ("Developer's Election to Exercise"). (c) Developer's failure to deliver to Agency Developer's Election to Exercise within such sixty (60) day period shall be deemed Developer's election not to exercise Developer's Right of First Offer and, except as provided below, Developer's Right of First Offer with respect to Lot 6 and/or Lot 8, as applicable, shall then terminate and Developer shall have no further right of first offer with respect to such lot(s). If Developer elects not to exercise (or is deemed to have elected not to exercise) Developer's Right of First Offer then Agency may sell Lot 6 and/or Lot 8 (as applicable) to a third party purchaser; provided, however, that in the event Agency determines to sell the applicable lot(s) for Hotel Use at a price that is less than ninety- five percent (95%) of the price set forth in Agency's Sale Notice, Agency shall provide Developer with a written notice of Agency's intent to sell said lot(s) for Hotel Use with Agency's new proposed sale price for the same, and Developer's Right of First Offer shall again apply with respect to such lot(s), in accordance with the process outlined in subparagraph (b) above and this subparagraph (c). (d) If Developer elects to exercise Developer's Right of First Offer by delivering to Agency Developer's Election to Exercise, the parties shall endeavor to negotiate the terms of a disposition and development agreement (a "DDA") for the purchase price set forth in Agency's Sale Notice or Agency's Second Sale Notice (as applicable). Upon execution of the DDA, the parties shall promptly open an escrow with the Escrow Agent and shall provide the Escrow Agent with a copy of the DDA, and the parties shall endeavor to close the escrow in accordance with the terms of the DDA. In the event the parties are unable to reasonably agree to the terms of a DDA within ninety (90) days after Developer delivers to Agency Developer's 882/015610-0084 -26- 737414 08 a02/26/07 Election to Exercise, then Developer's Right of First Offer with respect to the applicable lot(s) shall terminate, Developer shall have no further right of first offer with respect to such lot(s), and Agency may sell the lot(s) to a third party purchaser, subject to the provisions of the second sentence in subparagraph (c) above. (e) Notwithstanding the foregoing or anything in this Agreement to the contrary, unless terminated earlier in accordance with the terms of this Section 209, Developer's Right of First Offer as to both Lot 6 and Lot 8 shall terminate and be of no further force or effect on the earlier of (a) the date this Agreement is terminated by either Developer or Agency, or (b) the fifth (5th) anniversary of the Effective Date. (f) Upon the termination of Developer's Right of First Offer as to each of Lot 6 and Lot 8, or both, as set forth in this Section 209, Developer shall execute a termination or quitclaim document reasonably requested by Agency and/or a reputable title company to remove Developer's Right of First Offer as a cloud on title as to such lot(s). (g) This Section 209 and Developer's Right of First Offer set forth herein shall not apply to an "Internal Agency Transfer." For purposes of this Section 209, an "Internal Agency Transfer" is defined as a conveyance, from time to time and one or more times, of Lot 6 and/or Lot 8 by Agency to the City or to any joint powers authority or similar entity in which Agency or City is a member, or to subsequent conveyances of Lot 6 and/or Lot 8 between and among the Agency, City, and such joint powers authorities or similar entities. The transferee of an Internal Agency Transfer shall take conveyance of Lot 6 and/or Lot 8 subject to, and shall be bound by, the terms of this Section 209 until Developer's Right of First Offer is terminated pursuant to the terms of this Section 209. 210. Ranch Villas Parcel. Developer and Agency acknowledge and agree that the Ranch Villas Parcel is currently developed with a temporary clubhouse and cart barn serving Golf Course patrons, and that the City contemplates constructing a permanent clubhouse and cart barn in a different location. Agency shall provide Developer with a written notice at least sixty (60) days prior to the date the City intends to vacate the Ranch Villas Parcel ("Agency's Ranch Villas Parcel Vacation Notice"). Upon receipt of Agency's Ranch Villas Parcel Vacation Notice, Developer shall commence preparing a site development permit application for the Ranch Villas Development, and Developer shall submit such application in accordance with the time set forth in the Schedule of Performance. 300. DEVELOPMENT OF THE PROJECT 301. Scope of Development. The Developer shall develop or cause the development of the Project in accordance with the Scope of Development, the Specific Plan, the City Municipal Code, Governmental Requirements, Land Use Approvals, and the plans, drawings and documents submitted by the Developer and approved by the Agency as set forth herein. Prior to commencement of construction of any Phase of Development the Developer shall obtain and deliver to the Agency evidence of the Contractor Bonds required pursuant to Section 205.1(n) covering the applicable Phase of Development, and which provide that the Agency is authorized to enforce such completion bond as a third party beneficiary. 882/015610-0084 _27_ 737414 08 a02/26/07 302. Design Review. 302.1 Developer Submissions. Before commencement of construction of any Phase of Development, and as one of Agency's Conditions Precedent to the Closing pursuant to Section 205.1(d), at or prior to the time set forth herein, the Developer shall submit to the City any plans and drawings (collectively, the "Design/Construction Development Drawings") which may be required by the City with respect to any permits and entitlements which are required to be obtained to develop a Phase of Development, and such plans for the Phase of Development as required by the City in order for the Developer to obtain building and grading permits for the Phase of Development. Within thirty (30) days after the City's disapproval or conditional approval of such plans, the Developer shall revise the portions of such plans identified by the City as requiring revisions and resubmit the revised plans to the City. All such Design/Construction Development Drawings shall be consistent with the designs set forth in the SilverRock Resort Project Summary prepared by Lowe Enterprises dated June 15, 2005, and the SilverRock Resort Vision Summary 2005, prepared by OZ Architects, Inc., dated June 15, 2005, and Agency reserves the right to request that the City disapprove any plans or designs that Agency's Executive Director believes has too few Units compared to the maximum permitted under the Specific Plan. 302.2 City Review and Approval. The City shall have all rights to review and approve or disapprove all Design/Construction Development Drawings and other required submittals in accordance with the City Municipal Code, and nothing set forth in this Agreement shall be construed as the City's approval of any or all of the Design/Construction Development Drawings or other required submittals. 302.3 Revisions. Any and all change orders or revisions required by the City and its inspectors which are required under the City Municipal Code and all other applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws and regulations shall be included by the Developer in its Design/Construction Development Drawings and other required submittals and shall be completed during the construction of the applicable Phase of Development. 302.4 Defects in Plans. The Agency and the City shall not be responsible either to the Developer or to third parties in any way for any defects in any of the Design/Construction Development Drawings, nor for any structural or other defects in any work done according to the approved Design/Construction Development Drawings, nor for any delays reasonably caused by the review and approval processes established by this Section 302. 302.5 Land Use Approvals. Before commencement of construction of any Phase of Development or other works of improvement upon the Property, the Developer shall, at its own expense, secure or cause to be secured any and all land use and other entitlements, permits and approvals which may be required for the applicable Phase of Development or work of improvement by the City or any other governmental agency affected by such construction or work, including but not limited to, site development permits, conditional use permits, temporary use permits, minor use permits, and any environmental studies and documents required pursuant to the California Environmental Quality Act (collectively, the "Land Use Approvals"). 882/015610-0084 737414 08 a02/26/07 -28- 303. Schedule of Performance. The Developer shall submit all Design/Construction Development Drawings, commence and complete all construction of the Project, and satisfy all other obligations and conditions of this Agreement, within the times established therefor in the Schedule of Performance. 304. Indemnity and Insurance Requirements. The Developer shall indemnify, defend, and hold harmless the Agency and the City, and their respective officers, officials, members, employees, agents, and representatives, from all claims or suits for, and damages to, property and injuries to persons, including accidental death (including expert witness fees, attorneys fees, and costs), which may be caused by any of the Developer's activities under this Agreement. Commencing with the Effective Date hereof and ending on the date Agency issues a Release of Construction Covenants for the final Phase of Development to be constructed on the Property (the "Completion of Construction Date"), Developer shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to the Executive Director, the following policies of insurance: A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate. A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by Developer in the course of carrying out the work or services contemplated in this Agreement. A policy of commercial automobile liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00). Said policy shall include coverage for owned, non -owned, leased, and hired cars. The following additional requirements shall apply to all of the above policies of insurance: All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name Agency, City, and their respective officers, officials, members, employees, agents, and representatives as additional insureds, using a pre- 2004 additional insured endorsement (or equivalent). The insurer shall waive all rights of subrogation and contribution it may have against Agency, City, and their respective officers, officials, members, employees, agents, and representatives, and their respective insurers. All of said policies of insurance shall provide that said insurance may not be materially amended or cancelled without providing thirty (30) days' prior written notice to Agency and City. In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the Executive Director. Not later than the Effective Date of this Agreement, Developer shall provide the Executive Director with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the Executive Director. Upon the request of the Executive Director, 882/015610-0084 -29- 737414 08 a02/26/07 Developer shall provide Agency with complete copies of each policy of insurance required by this Agreement. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies (i) licensed and admitted to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, or (ii) authorized to do business in California, rated "A+" or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Registry and only if they are of a financial category Class XV. Notwithstanding the foregoing, in the event that the policies required hereunder are not available from such insurers at commercially reasonable rates, the Executive Director shall have the authority, in his or her sole and absolute discretion, to waive one or more of such requirements provided the proposed policies will adequately protect the Agency's interests hereunder. Agency may reasonably require coverage increases, provided that the percentage increase in coverage shall not be required to exceed the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County Average, All Items (1984 = 100) (the "Index"), from and after the date of this Agreement, or, if said Index is discontinued, such official index as may then be in existence and which is most nearly equivalent to said Index (the "CPI Adjustment"). Unless otherwise approved in advance by the Executive Director, the insurance to be provided by Developer may provide for a deductible or self -insured retention of not more than Fifty Thousand Dollars ($50,000), with such maximum amount to increase at the same rate as the periodic increases in the minimum amount of total insurance coverage set forth above. Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 305. Indemnity. Commencing on the Effective Date and ending on the Completion of Construction Date, the Developer shall defend, indemnify, assume all responsibility for, and hold the Agency and the City, and their respective representatives, volunteers, officers, officials, members, employees and agents, harmless from all claims, demands, damages, defense costs or liability of any kind for damage to property or injuries to persons, including accidental death (including attorneys' fees and costs), which may be caused by any acts or omissions of the Developer under this Agreement, whether such activities or performance thereof be by the Developer or by anyone directly or indirectly employed or contracted with by the Developer and whether such damage shall accrue or be discovered before or after termination of this Agreement including, but not limited to, Developer's failure to pay, if required, prevailing wages on the construction and development of any Phase of Development. The Developer shall not be liable for property damage or bodily injury to the extent such property damage or bodily injury is occasioned by the negligence or willful misconduct of the Agency, the City or their respective agents or employees. 182/015610-0084 -30- 737414 08 a02/26/07 306. Rights of Access. Prior to the Completion of Construction Date, for purposes of assuring compliance with this Agreement, representatives of the Agency shall have the right of access to the Property, without charges or fees, at normal construction hours during the period of construction for the purposes of this Agreement, including but not limited to, the inspection of the work being performed in constructing the Project so long as Agency representatives comply with all safety rules and do not interfere with construction. The Agency (or its representatives) shall, except in emergency situations, notify the Developer prior to exercising its rights pursuant to this Section 306. Agency shall indemnify, defend, and hold Developer harmless from and against all costs, claims, liability and judgments arising from the Agency's exercise of its right of access hereunder. 307. Compliance With Laws; Payment of Taxes. 307.1 Compliance with Laws. The Developer shall carry out the design, construction and operation of the Project and each Phase of Development in conformity with all applicable laws, including all applicable state labor standards, the City zoning and development standards, building, plumbing, mechanical and electrical codes, and all other provisions of the City Municipal Code, and all applicable disabled and handicapped access requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, at seq., and the Unruh Civil Rights Act, Civil Code Section 51, at seq. Nothing herein constitutes a representation or warranty by Agency that the construction of the Project is (i) not a "public work" or (ii) not otherwise subject to California Health and Safety Code Sections 33423 through 33426, or Chapter 1 of Part 7 of the California Labor Code (commencing with section 1720), and all applicable statutory and regulatory provisions related thereto, and Developer, on behalf of itself and its contractors and subcontractors, expressly waives any right of reimbursement for any "increased costs" under California Labor Code Section 1781 or otherwise with respect to the Property or Project. Developer shall indemnify, defend, and hold Agency harmless, including but not limited to litigation costs, expert witness fees, and reasonable attorneys' fees, from and against any and all claims pertaining to the payment of wages for the Property or Project or failure to comply with federal or state labor laws, regulations, or standards. 307.2 Taxes and Assessments. The Developer shall pay prior to delinquency all ad valorem real estate taxes and assessments on the Property (after such time that Developer acquires fee title to or becomes the ground lessee of each of the Parcels composing the Property), subject to the Developer's right to contest in good faith any such taxes. Developer agrees on behalf of itself, and on behalf of all persons or entities that may own an interest in the Property or in the Units in the future, that during the term of the City Declaration of CC&Rs neither Developer nor any such person or entity shall (i) apply for or receive any exemption from the payment of property taxes or assessments on any interest in or to the Project or any of the Parcels composing the Property, or (ii) take action, including any assessment appeal, to decrease the assessed value of any of the Property (including the value of each respective Phase of Development) below the final assessed value at the time the development of the Property or a Phase of Development (as applicable) is completed. 882/015610-0084 -31- 737414 08 a02/26/07 308. Release of Construction Covenants. Upon the City's issuance of the last and final certificate of occupancy for a Phase of Development, the Developer may request that the Agency furnish the Developer with a Release of Construction Covenants for the applicable Phase of Development. The Agency shall not unreasonably withhold any such Release of Construction Covenants, and if the Developer is entitled thereto shall furnish to Developer a recordable Release of Construction Covenants for the applicable Phase of Development within fifteen (15) days after Developer's request thereof. The Release of Construction Covenants shall be a conclusive determination of satisfactory completion of the applicable Phase of Development and the Release of Construction Covenants shall so state. Any party then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the real property for which a Release of Construction Covenants has been issued shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement except for those continuing covenants as described in Article 500 of this Agreement. If the Agency refuses or fails to furnish a Release of Construction Covenants after written request from the Developer, the Agency shall, within fifteen (15) days after written request therefor, provide the Developer with a written statement of the reasons the Agency refused or failed to furnish a Release of Construction Covenants. The statement shall also contain the Agency's opinion of the actions the Developer must take to obtain a Release of Construction Covenants for the applicable Phase of Development. A Release of Construction Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage securing money loaned to finance the applicable Phase of Development, or any part thereof. The Release of Construction Covenants is not a notice of completion as referred to in Section 309.3 of the California Civil Code. 309. Financing of the Project. 309.1 Annroval of Financing. Within the times set forth in the Schedule of Performance, and as one of Agency's Conditions Precedent to the Closing for each Escrow, Developer shall submit to Agency evidence that Developer (i) has obtained or will have obtained as of the Closing, construction financing from a commercial lender necessary to undertake the acquisition of the applicable Parcel, and the construction of the applicable Phase of Development, in accordance with this Agreement which may be in the form of a commitment, a term letter, or such other form, with all such forms to be approved by Agency in Agency's reasonable discretion (a "Construction Loan"); (ii) if desired by Developer, has obtained "Mezzanine" financing in a form reasonably acceptable to Agency; and (iii) has obtained sufficient equity capital to cover the difference between (a) the sum of the Construction Loan and the Mezzanine financing and (b) the total cost of acquiring the applicable Parcel and developing the applicable Phase of Development ("Developer's Equity Contribution"). The Agency shall approve or disapprove such evidence of financing within thirty (30) days after receipt of a complete submission for the applicable Phase of Development. Approval shall not be unreasonably withheld, delayed, or conditioned. If Agency shall disapprove any such evidence of financing, Agency shall do so by Notice to Developer stating with reasonable specificity the reasons for such disapproval and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency shall approve or disapprove such new evidence of financing in the same manner and within the same times established in this Section 309.1 for the approval or 882/015610-0084 -32- 737414 08 .02/26/07 disapproval of the evidence of financing as initially submitted to Agency. Developer shall close each approved Construction Loan prior to or concurrently with the real estate closing for the applicable Parcel. Such evidence of financing shall include the following: (a) a copy of a loan commitment(s) or term letter(s), obtained by Developer from one or more financial institutions for the Construction Loan, subject to such lenders' reasonable, customary and normal conditions and terms, and (b) documentation reasonably satisfactory to the Agency as evidence of the "Mezzanine" financing and Developer's Equity Contribution. 309.2 Changes Requested by Lenders. In the event that a lender which has been approved pursuant to Section 309.1 hereof requires one or more amendments to this Agreement, or any of the attachments hereto, which amendments are reasonably acceptable to the Agency Executive Director and do not materially affect Agency's interest hereunder, the Agency Executive Director or his or her designee is hereby authorized to make such amendments without further authorization from the Agency Board; provided, however, that the foregoing is not intended to restrict or limit the Agency's legislative discretion. 309.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may deliver any notice or demand to Developer with respect to any breach or default by the Developer in completion of construction of the Project or any Phase of Development, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. 309.4 Failure of Holder to Complete Project. In any case where, sixty (60) days after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the Property or any part thereof receives a notice from Agency of a default by the Developer in completion of construction of the Project, or any Phase of Development under this Agreement, and such holder has not elected to commence a cure of such default as set forth in this Section 309, or if it has elected to commence such a cure but thereafter defaults hereunder and failed to timely cure such default, the Agency may purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid mortgage or deed of trust debt, including principal and interest and all other sums secured by the mortgage or deed of trust, including without limitation, any prepayment fees and costs. If the ownership of the Property or any part thereof has vested in the holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the Agency upon payment to the holder of an amount equal to the sum of the following: 982/015610-0084 -33- 737414 08 a02/26/07 (a) The unpaid mortgage or deed of trust debt at the time title became vested in the holder (less all appropriate credits, including those resulting from collection and application of rentals and other income received during foreclosure proceedings); (b) All expenses with respect to foreclosure including reasonable attorneys' fees; (c) The net expense, if any (exclusive of general overhead), incurred by the holder as a direct result of the subsequent management of the Property or part thereof; (d) The costs of any improvements or expenditures made by such holder; (e) An amount equivalent to the interest that would have accrued on the aggregate of the amounts set forth in (a) through (d) above had all such amounts become part of the mortgage or deed of trust debt and such debt had continued in existence to the date of payment by the Agency; and (0 Any customary prepayment charges imposed by the lender pursuant to its loan documents and agreed to by the Developer. 309.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the event of a mortgage or deed of trust default or breach by the Developer prior to the completion of the construction of the Project or any Phase of Development, Developer shall immediately deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any mortgage or deed of trust has not elected to cure any default by Developer under this Agreement, the Agency shall have the right but no obligation to cure the default. In such event, the Agency shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the Agency in curing such default. The Agency shall also be entitled to a lien upon the Property, or portion of the Property against which the mortgage or deed of trust is recorded, to the extent of such costs and disbursements actually made by Agency. 309.6 Holder Not Obligated to Construct Project. The holder of any mortgage or deed of trust encumbering the Property shall not be obligated by the provisions of this Agreement to construct or complete the Project, or any portion thereof, or to guaranty such construction or completion; nor shall any such covenant or any other provision in this Agreement be construed so to obligate such holder. 310. Developer CC&Rs. Prior to the Agency's issuance of a Release of Construction Covenants for any Phase of Development that contains Condominium Hotel Units and/or Fractional Units, Developer shall have submitted to City, obtained City's approval of, and recorded against the underlying Parcel a declaration of covenants, conditions, and restrictions that (i) establishes a homeowners' association, (ii) is necessary to create a condominium regime for the condominiums described on the Condominium Plan to be recorded in accordance with all applicable laws; (iii) clearly sets forth the maintenance obligations of the owners of the Condominium Hotel Units and Fractional Units; (iv) sets forth the obligations of the owners of the Condominium Hotel Units and Fractional Units to make certain resort payments, as further set forth in the City Declaration of CC&Rs; and requires all such resort payments to be paid and 882/015610-0084 -34- 737414 08 a02/26/07 brought current prior to any sale by the owner thereof; and (v) includes a disclosure regarding the public ownership and control of the existing golf course and any future golf course that may be developed in the SilverRock Resort Area and a statement that Developer does not and cannot guarantee that the City will not make changes to such golf course(s) or change the use of the underlying real property (the "Developer CC&Rs"). 311. Interference with Municipal Golf Course. Developer shall carry out the construction of the Project so as to minimize interference with the municipal golf course located in the SilverRock Resort Area (the "Golf Course"), including, without limitation, taking all necessary actions to ensure that dust (i) does not blow off or leave any Parcel under development and enter onto any portion of the Golf Course; or (ii) is not tracked from any Parcel under development onto any of the roadways within the SiverRock Resort Area. Developer shall screen any Parcel under development to minimize the visual impacts of such development on persons using the Golf Course. Developer acknowledges that the City has entered into a Use Agreement with the Desert Classic Charities, dba Bob Hope Chrysler Classic, pursuant to which the Golf Course may be utilized for the Bob Hope Chrysler Classic annual tournament. In any year when the tournament is held at the Golf Course, no construction activities shall take place during the televised portion of the tournament unless authorized, in writing, by the City Manager, and Developer and Developer's contractors and subcontractors shall ensure that during the tournament all construction sites are left in a neat and orderly condition. Developer additionally agrees to coordinate with the tournament officials to ensure that construction activities do not interfere with the tournament. 312. Infrastructure Improvements. Developer shall be responsible for all of the following: 312.1 The cost of any and all curb cuts necessary to connect any portions of the Project to the backbone infrastructure within the SilverRock Resort Area. 312.2 The cost to restore or replace any of the backbone infrastructure within the SilverRock Resort Area Developer believes should be altered once the City has completed the same and has certified that such completion is in accordance with any approved plans therefor. 312.3 The cost to repair any damage to the backbone infrastructure, Golf Course improvements, lakes, or other improvements within the SilverRock Resort Area caused by Developer's construction activities. 312.4 Reconnecting the existing water and sewer lines that serve the comfort station (i.e. the restroom facilities) located on the Boutique Hotel Parcel from the Golf Course to Developer's water and sewer lines located in the adjacent private street. In connection therewith, the parties shall determine the costs of the water and sewer service provided to the comfort station. 312.5 Relocating any above- and/or below -ground utility on any of the Parcels Developer acquires a fee or leasehold interest in hereunder or on real property adjacent to such Parcels if such relocation becomes necessary in the future. 882/015610-0084 -35- 737414 08 a02/26/07 312.6 Constructing and installing on the Parcels Developer acquires a fee or leasehold interest in hereunder water and sewer laterals and/or loops. 312.7 Installing and paying electricity costs for all on -site lighting needs. In performing any of the installations and other work described in this Section 312, Developer shall comply with all applicable ordinances, statutes, laws, regulations, and requirements, including, without limitation, the requirement to obtain encroachment permits and pay for City inspections. In addition to the foregoing, Developer hereby acknowledges and agrees that no alterations shall be permitted to the roadway and/or sewer alignment in the SilverRock Resort Area once the City submits its first plan review to the Coachella Valley Water District. In the event any such alterations are unavoidable, Developer acknowledges that City cannot guarantee that the altered connections will be available to Developer at the time the Boutique Hotel is completed and opened. 313. feline Across Boutique Hotel Parcel. The Agency has installed a pipeline across portions of the Boutique Hotel Parcel (the "Boutique Hotel Parcel Pipeline"). The Parcel Map depicts the location of the easement required for the City to access, maintain, and repair the Boutique Hotel Parcel Pipeline (the "Boutique Hotel Parcel Easement"). Developer hereby acknowledges that Agency's conveyance of the Boutique Hotel Parcel shall be subject to the Boutique Hotel Parcel Easement. Developer shall use commercially reasonable efforts to design the Boutique Hotel around the Boutique Hotel Parcel Easement so as not to cause a reduction in the Unit count; provided, however, that if Developer is unable to do so, Developer may, at its sole cost and at no cost to the City or Agency, subject to the last sentence in this Section 313, relocate the Boutique Hotel Parcel Pipeline to a location and in a manner acceptable to the City Engineer and Community Development Director, in each of their reasonable discretion, in accordance with all City standards and requirements for such relocation. Any such relocation shall be fully performed during the summer or late spring, when play at the Golf Course is at a minimum. Once Developer has completed the relocation of the Boutique Hotel Parcel Pipeline, as determined by the City Engineer and Community Development Director, Developer shall convey to the City an easement to access, maintain, and repair the relocated Boutique Hotel Parcel Pipeline. The Purchase Price for the Boutique Hotel Parcel shall be reduced by the amount incurred by Developer to relocate the Boutique Hotel Parcel Pipeline; provided, however, that the maximum price reduction for the Boutique Hotel Parcel shall be Fifty Thousand Dollars ($50,000), even if the actual cost incurred by Developer to relocate the Boutique Hotel Parcel Pipeline exceeds such amount. 400. DEVELOPMENT AGREEMENT; RESORT RETAIL VILLAGE PARCEL GROUND LEASE The City of La Quinta and Developer have entered into or will enter into, concurrently herewith, the Development Agreement. In the event Agency elects, in Agency's sole and absolute discretion, to convey the Resort Retail Village Parcel to City, the parties contemplate that City will enter into with Developer the Resort Retail Village Parcel Ground Lease, pursuant to which City will subsequently lease to Developer such Parcel. In the event Agency elects, in 882/015610-0084 -36- 737414 08 .02/26/07 Agency's sole and absolute discretion, to retain the fee interest in and to such Parcel, Developer and Agency contemplate entering into the Resort Retail Village Parcel Ground Lease, and Agency contemplates assigning its interests in said lease to City. As set forth herein, in the Development Agreement, and in the Resort Retail Village Parcel Ground Lease (if applicable), Developer shall be required to construct and operate on the Resort Retail Village Parcel the Resort Retail Village Development. Any default of Developer under the Resort Retail Village Parcel Ground Lease or under the Development Agreement which has not been cured within the applicable cure period shall be deemed a Default hereunder, and shall give rise to all of Agency's remedies set forth herein. Notwithstanding anything herein to the contrary, the Resort Retail Village Parcel Ground Lease, if entered, shall have the following terms: 401. Term. The term of the Resort Retail Village Parcel Ground Lease shall be fifty- five (55) years. 402. Rent. Rental payments for the Resort Retail Village Parcel shall be eight percent (8%) of the Purchase Price (with the Purchase Price determined according to the appraisal process described in Attachment No. 3 hereof), increasing by two percent (2%) per year. Every fifth (5th) year during the term of the Resort Retail Village Parcel Ground Lease, the Resort Retail Village Parcel shall be reappraised, pursuant to the process described in Attachment No. 3 hereof, and the leasehold payments shall be adjusted, based on such reappraisal, such that the leasehold payments shall be eight percent (8%) of the then -fair market value of the Resort Retail Village Parcel, with all improvements existing on such Parcel as of the date of such reappraisal being taken into account in the valuation. 403. No Assignment. The Developer may not assign its interest in the Resort Retail Village Parcel Ground Lease until the Agency issues a Release of Construction Covenants for the Resort Retail Village Development. 404. Permitted Uses. The Developer shall use the Resort Retail Village Parcel only for the uses and purposes permitted pursuant to the Specific Plan and pursuant to any applicable Site Development Permit. 500. USE AND OPERATION OF THE PROPERTY 501. Operation of the Project. Developer shall enter into the necessary agreements to ensure that DHR shall initially manage and operate the Phases of Development developed on the Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the Golf Casitas Parcel, and the Ranch Villas Parcel all in accordance with the requirements of this Section 500. Notwithstanding anything herein to the contrary and with the one limited exception outlined in this paragraph, until the Management Transfer Release Date for each Phase of Development that includes Units, DHR or a successor entity authorized pursuant to Section 703.2 (DHR or such permitted successor entity, an "Authorized Manager") shall retain full management and operational control over all components of such Phase of Development. The Authorized Manager of the hotel and Units to be developed on the Resort Hotel Parcel shall also be the Authorized Manager for the Units to be developed on the Golf Casitas Parcel and the Lake 8821015610-0084 737414 08 a02/26/07 -37- Casitas Parcel. The Authorized Manager of the Units to be developed on the Ranch Villas Parcel shall also be the Authorized Manager for the hotel and Units to be developed on the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subsequently subdivided into two or more Parcels. In the event that, consistent with the terms of this Agreement, some or all of the Fractional Units are developed as a residence club, in which memberships are sold to third parties giving such parties the right to use and occupy the Fractional Unit for certain periods of time, or as a timeshare program, Developer anticipates the residence club and timeshare program will be operated and managed by DHR. Developer shall obtain Agency's prior written approval, which approval shall not be unreasonably conditioned, withheld, or delayed, of any operator other than DHR that Developer proposes to operate and manage said residence club and/or timeshare program, and in no event shall more than one operator operate and manage said residence club and/or timeshare program, regardless of whether the Fractional Units in the residence club and/or timeshare program are located on more than one Parcel. Further, in no event will there be more than three operators operating and managing all of the Units in the Project. In connection with Developer's request for Agency's approval, Developer shall submit a proposed management plan that describes the residence club and/or timeshare program, including the operational and managerial obligations of the proposed operator, and that details how such operation and management will be effected in order to maintain the Fractional Units at a Four Star Quality and to ensure such Fractional Units remain and appear to remain affiliated with the other hotel portions of the Project. Developer, on behalf of itself and any Authorized Manager, covenants and agrees that each of the Phases of Development that include Units shall, upon its completion, be operated in a Four Star Quality condition until the twentieth (20th) anniversary of the date the Agency issues a Release of Construction Covenants for such Phase of Development. No more than once per year after completion of any of the Phases of Development that include Units, the Agency may select an independent consultant (the "Performance Consultant") to perform a quality audit of such Phase(s) of Development for purposes of determining that the applicable Phase of Development is operating at a Four Star Quality (the "Performance Audit"). The then -owner of the applicable Phase of Development (the "Phase of Development Owner") shall reimburse the Agency for the reasonable costs of the Performance Audit. In the event that the Performance Audit concludes that the Phase of Development is not operating at a Four Star Quality, the Phase of Development Owner shall have a period of sixty (60) days from the date the Agency provides the Phase of Development Owner with the Performance Audit to correct a sufficient number of the deficiencies noted therein so that the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. If, at the expiration of said sixty (60) day period, a sufficient number of the deficiencies have not been corrected so that the Phase of Development still does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, the Phase of Development Owner shall pay to the Agency liquidated damages for each day after said sixtieth (601h) day that passes until sufficient items noted in the Performance Audit have been corrected, as determined by the Performance Consultant, in the following amounts: (i) if the Phase of Development is operating such that eighty percent (80%) or more but less than ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the Agency the sum of Five Hundred Dollars ($500) per day (the "Less Than 95% Performance Default Amount") until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics; or (ii) if the Phase of 882/015610-0084 _38- 737414 08 a02/26/07 Development is operating such that less than eighty percent (80%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the Agency the sum of One Thousand Dollars ($1,000) per day (the "Less Than 80% Performance Default Amount") until the day as of which the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics; provided, however, that if on the day the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics the Phase of Development does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, then the Phase of Development Owner shall be required to pay the City the Less Than 95% Performance Default Amount, pursuant to clause (i) above, for each day until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. All of the costs and fees charged by the Performance Consultant for any follow-up inspections shall be paid by the Phase of Development Owner. LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT A PHASE OF DEVELOPMENT IS NOT OPERATING AT A FOUR STAR QUALITY, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, AGENCY AND DEVELOPER AGREE THAT AGENCY WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. AGENCY AND DEVELOPER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT AGENCY'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, HAVE AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO AGENCY THAT REASONABLY COULD BE ANTICIPATED, AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT, THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF AGENCY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, THE PHASE OF DEVELOPMENT OWNER SHALL BE REQUIRED TO PAY TO AGENCY THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THEN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) AS LIQUIDATED DAMAGES AND AS AGENCY'S SOLE DAMAGE REMEDY AGAINST THE PHASE OF DEVELOPMENT OWNER FOR A DEFAULT UNDER THIS SECTION 501; PROVIDED, HOWEVER, THAT AGENCY RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER EQUITABLE REMEDY AVAILABLE TO AGENCY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING AN ACTION FOR SPECIFIC PERFORMANCE (BUT NOT THE RIGHT TO SEEK ANY DAMAGES). AGENCY AND DEVELOPER SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW: 882/015610-0084 737414 08 a02/26/07 -39- AGENCY DEVI PER Agency and Developer acknowledge and agree that the liquidated damages provision in this Section 501, in Section 1.2 of the applicable City Declaration of CC&Rs, and in Section 3.1 of the Development Agreement, are designed to be a single obligation of the Phase of Development Owner pursuant to this Section 501, Section 1.2 of the applicable City Declaration of CC&Rs, and Section 3.1 of the Development Agreement, and that either payment to Agency, under this Section 501, or payment to the City under Section 1.2 of the applicable City Declaration of CC&Rs or under Section 3.1 of the Development Agreement, shall satisfy the obligation of payment of the liquidated damages under this Section 501, under Section 1.2 of the applicable City Declaration of CC&Rs, and under Section 3.1 of the Development Agreement. 502. Use in Accordance with Redevelopment Plan. 502.1 The Developer covenants and agrees for itself, its successors, assigns, and every successor in interest to the Property or any part thereof, that upon the Developer's acquisition of the Property and during construction and operation of the Project, and thereafter, the Developer shall devote the Property to the uses specified in the Redevelopment Plan and this Agreement for the term of the land use controls of the Redevelopment Plan. 502.2 All uses conducted on the Property, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the Redevelopment Plan and all applicable provisions of the City Municipal Code. The foregoing covenants shall run with the land until the expiration of the land use controls of the Redevelopment Plan. 503. Maintenance Covenants. The Developer shall maintain the Property and all improvements thereon, including all landscaping, in a first class condition, and in compliance with the terms of the Redevelopment Plan, and all applicable provisions of the City Municipal Code. 504. Nondiscrimination Covenants. The Developer covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any part thereof, nor shall the Developer itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the Property. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the Property or portion thereof on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or 882/015610-0084 -40- 737414 08 a02/26/07 through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land". (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased". (c) In contracts relating to the disposition of the realty: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises". 505. Effect of Violation of the Terms and Provisions of this Agreement After Completion of Construction. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land, for and in its own right, without regard to whether the Agency has been, remains or is an owner of any land or interest therein in the Property or the Project Area. The Agency shall have the right, if this Agreement or the covenants herein are breached, to exercise all rights and remedies, and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breaches and to avail itself of the rights granted herein to which it may be entitled, except as may be otherwise set forth in this Agreement. The covenants contained in this Agreement shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having an interest in such other real property. The covenants contained in this Agreement shall remain in effect for the periods described herein, specifically including, without limitation, the following: (a) The environmental covenants set forth in Sections 207.3, 207.4, and 207.5 shall remain in effect in perpetuity. 882/015610-0084 -41- 737414 08 a02/26/07 (b) The covenants pertaining to use of the Property which are set forth in Section 502 shall remain in effect until the expiration of the land use controls of the Redevelopment Plan. (c) The covenants pertaining to maintenance of the Property, and all improvements thereon, as set forth in Section 503, shall remain in effect until the expiration of the land use controls of the Redevelopment Plan. (d) The covenants against discrimination, as set forth in Section 504, shall remain in effect in perpetuity. (e) The indemnity obligations, as set forth in Section 307 hereof, shall remain in effect for the time period set forth in Section 307. (f) The indemnity obligations, as set forth in Section 207.5 and in Section 307.1 hereof, shall remain in effect in perpetuity. 506. Representations and Warranties. 506.1 Agency Representations. Agency represents and warrants to Developer as follows (a) Authority. Agency is a public body, corporate and politic, existing pursuant to the California Community Redevelopment Law (California Health and Safety Code Section 33000), which has been authorized to transact business pursuant to action of the City. Agency has full right, power and lawful authority to acquire, grant, sell and convey the Property as provided herein, and the execution, performance and delivery of this Agreement by Agency has been fully authorized by all requisite actions on the part of Agency. (b) FIRPTA. Agency is not a "foreign person" within the parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any similar state statute, or has complied and will comply with all the requirements under FIRPTA or any similar state statute. (c) No Conflict. To the Agency's best knowledge, Agency's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which Agency is a party or by which it is bound. (d) Conformance with Redevelopment Plan. The development and use of the Project as required hereunder is in conformance with the Redevelopment Plan. Until the Closing for any of the Parcels, Agency shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 506.1 not to be true as of the respective Closing, immediately give written notice of such fact or condition to Developer. Such exception(s) to a representation shall not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer shall have a right to approve or disapprove. If Developer elects to close the applicable Escrow following disclosure of such 882/015610-0084 -42- 737414 08 a02/26/07 information, Agency's representations and warranties contained herein shall be deemed to have been made as of the applicable Closing, subject to such exception(s). If, following the disclosure of such information, Developer elects to not close the applicable Escrow, then this Agreement as to the applicable Escrow shall automatically terminate, Developer shall be reimbursed the theretofore undisbursed balance of any deposits made into Escrow, and neither party shall have any further rights, obligations or liabilities hereunder; provided, however, that in the event the Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this Agreement. In the event the Initial Escrow fails to close, this Agreement shall automatically terminate and neither party shall have any further rights or obligations hereunder, except that both parties agree to take whatever actions are reasonably necessary to terminate any other agreements that may have been executed in furtherance hereof. The representations and warranties set forth in this Section 506.1 shall survive each of the real estate Closings provided for herein. 506.2 Developer's Representations. Developer represents and warrants to Agency as follows: (a) Authority. Developer is a duly organized limited liability company formed within and in good standing under the laws of the State of Delaware. Developer has full right, power and lawful authority to purchase and accept the conveyance of each of the Parcels, and to undertake all obligations as provided herein and the execution, performance and delivery of this Agreement by Developer has been fully authorized by all requisite actions on the part of the Developer. (b) Experience. The Developer is experienced in the development of the type of commercial projects which would satisfy the development requirements set forth herein. (c) No Conflict. To the best of Developer's knowledge, Developer's execution, delivery and performance of its obligations under this Agreement will not constitute a default or a breach under any contract, agreement or order to which the Developer is a party or by which it is bound. (d) No Developer Bankruptcy. Developer is not the subject of a current or pending bankruptcy proceeding. Until the Closing for any of the Parcels, Developer shall, upon learning of any fact or condition which would cause any of the warranties and representations in this Section 506.2 not to be true as of the respective Closing, immediately give written notice of such fact or condition to Agency. Such exception(s) to a representation shall not be deemed a breach by Developer hereunder, but shall constitute an exception which Agency shall have a right to approve or disapprove. If Agency elects to close the applicable Escrow following disclosure of such information, Developer's representations and warranties contained herein shall be deemed to have been made as of the applicable Closing, subject to such exception(s). If, following the disclosure of such information, Agency elects to not close the applicable Escrow, then this Agreement as to the applicable Escrow shall automatically terminate, and neither party shall have any further rights, obligations or liabilities hereunder; provided, however, that in the event 882/015610-0084 -43- 737414 08 a02J26/07 the Initial Escrow closes, a failure to close any subsequent Escrow shall not terminate this Agreement. In the event the Initial Escrow fails to close, this Agreement shall automatically terminate and neither party shall have any further rights or obligations hereunder, except that both parties agree to take whatever actions are reasonably required to terminate any other agreements that may have been executed in furtherance hereof. The representations and warranties set forth in this Section 506.2 shall survive each of the real estate closings provided for herein. 600. DEFAULTS AND REMEDIES 601. Default Remedies. Subject to the extensions of time set forth in Section 702 of this Agreement, failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party cures such default within thirty (30) days from receipt of such notice, or if the nature of such default is that it cannot reasonably be expected to be cured within such thirty (30) day period, if such party, with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30) days from receipt of such notice, and completes such cure, correction or remedy with diligence. 602. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Agency shall also have the right to pursue damages for Developer's defaults. Notwithstanding the foregoing, however, in no event shall the Developer be entitled to damages of any kind from Agency, including damages for economic loss, lost profits, or any other losses or consequential damages of any kind. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California, or in the District of the United States District Court in which such county is located. 603. Termination Prior to the Close of the Initial Escrow. 603.1 Termination by Developer. In the event that prior to the close of the Initial Escrow (a) one or more of the Developer's Conditions Precedent to the Closing for the Initial Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer, (b) any default of the Agency under this Agreement prior to the close of the Initial Escrow is not cured within the time set forth in Section 601 hereof, after written demand by the Developer, (c) the Developer timely disapproves the environmental condition of the Property pursuant to Section 207 hereof, or (d) Developer reasonably determines that development of the Project would not be compatible with the other development within the Parcel Map, then this Agreement may, at the option of the Developer, be terminated by written Notice thereof to the Agency. From the date of the written Notice of termination of this Agreement by the Developer to the Agency and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties 882/015610-0084 737414 08 a02/26/07 -44- with respect to the Property, or any portion thereof, by virtue of or with respect to this Agreement. Upon termination as a result of clause (b) above or as a result of Developer's failure to obtain City's approval of plans that are consistent with this Agreement and with the Specific Plan, after diligent efforts by Developer to so obtain, any then-undisbursed amounts deposited into Escrow by Developer shall be paid to Developer. 603.2 Termination by Agency. In the event that prior to the close of the Initial Escrow (a) the Developer (or any successor in interest) assigns this Agreement or any rights herein or in any of the Parcels in violation of this Agreement, or assigns the Development Agreement or any rights therein; or (b) one or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily commenced, then this Agreement shall, at the option of the Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date of the written Notice of termination of this Agreement by the Agency to the Developer and thereafter this Agreement shall be deemed terminated and there shall be no further rights or obligations between the parties, except that Agency shall be entitled to retain all then- undisbursed portions of the Deposit Payments and shall have any and all rights available to the Agency as set forth in Section 605, Section 606, and Section 607 hereof. 604. Termination Prior to Subsequent Parcel Conveyance. 604.1 Termination by the Developer. In the event that, after the close of the Initial Escrow but prior to the close of any subsequent Escrow (a) one or more of the Developer's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such failure is not caused by the Developer, (b) any default of the Agency under this Agreement prior to the Closing is not cured within the time set forth in Section 601 hereof, after written demand by the Developer, or (c) Developer reasonably determines that development of the Project would not be compatible with the other development within the Parcel Map, then this Agreement with respect to that Escrow and all contemplated subsequent Escrows (if any) may, at the option of the Developer, be terminated by written Notice thereof to the Agency. From the date of the written Notice of termination of this Agreement by the Developer to the Agency, this Agreement shall be deemed terminated with respect to such Escrow and there shall be no further rights or obligations between the parties with respect to said Parcel(s) by virtue of or with respect to this Agreement. Upon termination as a result of clause (b) above or as a result of Developer's failure to obtain City's approval of plans that are consistent with this Agreement and with the Specific Plan, after diligent efforts by Developer to so obtain, any then-undisbursed portions of the Deposit Payments shall be paid to Developer. 604.2 Termination by the Agency. In the event that, after the close of the Initial Escrow but prior to the close of any subsequent Escrow (a) the Developer (or any successor in interest) assigns this Agreement or any rights herein or in the applicable Parcel(s) in violation of this Agreement, or assigns the Development Agreement or any rights therein; or (b) one or more of the Agency's Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on 882/015610-0084 --45- 737414 08 a02/26/07 or before the applicable Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to cure such default within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily commenced, then this Agreement with respect to that Escrow and all contemplated subsequent Escrows (if any) shall, at the option of the Agency, be terminated by the Agency by written Notice thereof to the Developer. From the date of the written Notice of termination of this Agreement by the Agency to the Developer, this Agreement with respect to such Escrow(s) shall be deemed terminated and there shall be no further rights or obligations between the parties with respect to said Parcel(s) by virtue of or with respect to this Agreement. 605. Agency Option to Acquire Plans. If, at any time after the close of the Initial Escrow this Agreement is terminated by the Agency as a result of a default by the Developer, at the option of the Agency and without any additional consideration, which option may be exercised in the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed assignment in a form reasonably acceptable to the Agency of the Developer's right to use all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to the construction of the Project on the Property (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Project to date of the termination. Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency understands and agrees that the assignment to Agency under this Section 605 is subject and subordinate to any assignment which Developer may make to a lender providing financing for the project, and Agency agrees to execute any documents required by such lender acknowledging and effectuating such subordination of Agency's rights in and to the assignment. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. 606. Option Agreement. In addition to any other rights and remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute discretion, to repurchase the Property, or any Parcel, with all of the improvements thereon, from Developer in the event that, (i) Developer fails to commence construction of a Phase of Development within certain specified timeframes, (ii) after commencement of construction, Developer fails to continuously proceed with, and complete, construction of a Phase of Development within certain specified timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a portion thereof, in violation of the terms hereof. Said repurchase rights shall be as set forth in an option agreement to be recorded at each Closing, against the applicable Parcel. The form of the Option Agreement is attached hereto and incorporated herein as Attachment No.7 ("Option Agreement"). 607. Right to Reverter and Power of Termination. In addition to any other rights and remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute discretion, to reenter and take possession of the Property, or any Parcel, subject to all liens and other matters of record, with all of the improvements thereon, from Developer in the event that (i) Developer fails to commence construction of a Phase of Development within certain specified 882/015610-0084 -46- 737414 08 a02/26/07 timeframes, (ii) after commencement of construction, Developer fails to continuously proceed with and complete, construction of the Phase of Development within certain, specified timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a portion thereof, in violation of the terms hereof. Said rights shall be as set forth in each Grant Deed pursuant to which Agency shall convey a Parcel to Developer. 608. Acceptance of Service of Process. In the event that any legal action is commenced by the Developer against the Agency, service of process on the Agency shall be made by personal service upon the Executive Director of the Agency or in such other manner as may be provided by law. In the event that any legal action is commenced by the Agency against the Developer, service of process on the Developer shall be made by personal service upon any officer of the Developer, whether made within or outside the State of California, or in such other manner as may be provided by law. 609. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 610. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 611. Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflict of law principles. 612. Non -Liability of Officials and Employees of the Agency. No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the Agency (or the City) or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. 613. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. 700. GENERAL PROVISIONS 701. Notices Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. 882/015610-0084 -47- 737414 08 a02/26/07 To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem ' and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Any written notice, demand or communication shall be deemed received upon delivery if delivered by hand, including by reputable delivery service providing a receipt with the date and time of delivery, and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 702. Enforced Delay' Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in Default, and all performance and other dates specified in this Agreement shall be extended, 882/015610-0084 -48- 737414 08 a02/26/07 where delays or Defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include the following: war; insurrection; acts of terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (other than the acts or failures to act of the Agency which shall not excuse performance by the Agency). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall only be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of Agency and Developer. Notwithstanding any provision of this Agreement to the contrary, Developer is not entitled pursuant to this Section 702 to an extension of time to perform because of past, present or future difficulty in obtaining suitable construction or permanent financing to commence or complete the Project or any Phase of Development or because of economic or market conditions. 703. Transfers of Interest in Property, Agreement, or Management. The qualifications and identity of the Developer as the developer and DHR as the operator of high quality commercial resort developments are of particular concern to the Agency. Furthermore, the parties acknowledge that the Agency has negotiated the terms of this Agreement in contemplation of the development and operation of the Project on the Property and the property tax increment and Transient Occupancy Tax revenues to be generated by the operation of the Project on the Property. 703.1 Transfers of Interest in Property or Agreement Prior to Agency's Issuance of a Release of Construction Covenants. Except as provided in this Section 703.1, until the date the Agency issues a Release of Construction Covenants for a particular Phase of Development (the "Fee Transfer Release Date"), (1) no voluntary successor in interest of the Developer shall acquire any rights or powers under this Agreement with respect to said Phase of Development; (2) the Developer shall not make any total or partial sale, transfer, conveyance, assignment, or lease of the whole or any part of the applicable Parcel or the Phase of Development thereon; and (3) no changes shall occur with respect to the ownership and/or control of Developer or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (any of the above, a "Transfer"). Prior to the Fee Transfer Release Date for a particular Phase of Development, the Agency may approve or disapprove a proposed Transfer in its sole and absolute discretion. Notwithstanding the foregoing, Agency approval of a Transfer prior to the Fee Transfer Release Date for a particular Phase of Development shall not be required in connection with any of the following: (a) The conveyance or dedication of any portion of the Property to an appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project. 882/015610-0084 -49- 737414 08 a02i26/07 (b) Any assignment for financing purposes (subject to such financing being permitted pursuant to Section 309 of this Agreement), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project or of a Phase of Development. (c) The Transfer by Developer to an entity (i) whose managing member, manager, or managing general partner is (A) Developer or (B) an entity which is at least twenty percent (20%) capitalized by Lowe Enterprises or the senior management of Lowe Enterprises; and (ii) which engages as the project/development manager for the Phase of Development an entity which is at least fifty-one percent (51%) owned and controlled by Lowe Enterprises. (d) The sale by Developer of Condominium Hotel Units to third party buyers. (e) The sale, transfer or issuance of stock or membership interests of Lowe Enterprises so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, membership and/or ownership interests of Lowe Enterprises, and control of Lowe Enterprises, is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. 703.2 Transfers of Operational Obligations. Notwithstanding anything in Section 703.1 to the contrary, commencing on the date the Agency issues a Release of Construction Covenants for each Phase of Development and continuing until the tenth (loth) anniversary thereof (the "Management Transfer Release Date"), (i) subject to the provisions of Section 501 hereof concerning the potential for separate management of Fractional Units in a residence club and/or timeshare program, neither Developer nor DHR (or any permitted successor in interest) shall make any Transfer of the operational and/or managerial control, including, but not limited to, financial and managerial decision -making, of such Phase of Development; and (ii) no changes shall occur with respect to the ownership and/or control of DHR, or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (either of the above, a "Management Transfer") without the prior written approval of the Agency; provided, however, that transfers of the stock, ownership and/or membership interests of DHR or of Lowe Enterprises may be made so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, ownership, and/or membership interests of DHR and of Lowe Enterprises is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. Notwithstanding the foregoing, Agency approval shall not be required for a Management Transfer to any of the entities listed on Attachment No. 14, which is attached hereto and incorporated herein by this reference; provided, however, that if any of the entities on Attachment No. 14 operate under a "flag" name, the flag shall be a flag that operates at a Four Star Quality. To the extent that the operating character or quality of any of the entities listed on Attachment No. 14 substantially changes between the Effective Date and the date of the proposed Management Transfer, Developer or Developer's successor in interest shall demonstrate that the listed entity satisfies the requirements for transferee entities not listed on Attachment No. 14, as outlined below in this Section 703.2. No Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating 882/015610-0084 737414 08 a02/26/07 -50- and managing the hotels and Units on the Resort Hotel Parcel, the Lakes Casitas Parcel, and the Golf Casitas Parcel and no Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating and managing the hotels and Units on the Ranch Villas Parcel and the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subdivided into two or more legal parcels. Agency shall not unreasonably withhold, delay, or condition approval of a proposed Management Transfer to an entity that is not listed on Attachment No. 14, provided that Developer or Developer's successor in interest demonstrates that the proposed operator has experience and reputation for operating luxury hotels at a Four Star Quality equivalent to the experience and reputation of DHR, Rosewood Hotels and Resorts, Vail Resorts, Inc., Loews Corporation, and Kimpton Hotel and Restaurant Group, LLC. Developer or Developer's successor in interest shall provide such information as may be reasonably requested by the Agency to enable the Agency to review and approve (or disapprove) any proposed operator, and shall reimburse the Agency for the Agency's costs incurred in considering any such request. 703.3 Assignment and Assumption of Obligations. Except for the sale of individual Condominium Hotel Units or Fractional Units, any Transfer (including Transfers not requiring prior Agency approval) by Developer of any interest in the Property or of any interest in this Agreement and all Management Transfers shall require the execution of an assignment and assumption of obligations substantially in the form attached hereto and incorporated herein as Attachment No. 14 (an "Assignment and Assumption Agreement"). Transfers of Developer's rights and/or obligations under this Agreement made without an executed Assignment and Assumption Agreement are null and void. The requirement for the provision to the Agency of an executed Assignment and Assumption Agreement shall apply regardless of whether Agency approval is required for the Transfer. Developer agrees that (a) at least thirty (30) days prior to any Transfer it shall give written notice to Agency of such proposed Transfer; and (b) within three (3) business days after any Transfer it shall provide City with a copy of the fully executed Assignment and Assumption Agreement evidencing that the assignee has assumed in writing all applicable obligations under this Agreement. A party proposing to assign its obligations under this Agreement (i) shall remain liable for the obligations until and unless the Agency has received a fully executed Assignment and Assumption Agreement, and (ii) shall remain liable for any default hereunder that occurred prior to the effective date of the assignment. Developer or Developer's successor in interest shall reimburse the Agency for any costs (other than staff time) the Agency incurs in reviewing any Assignment and Assumption Agreement required hereunder. 703.4 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided, and the term "Developer shall only mean the owner of a Phase of Development from time to time during the period of such entity's ownership, provided that the procedures set forth in this Agreement for that entity's acquisition and or disposition. 703.5 Assignment by Agency. The Agency may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer 882/015610-0084 -51- 737414 08 a02/26/07 any of its interests hereunder to the City or to a joint powers authority in which Agency or the City is a member at any time without the consent of the Developer. 704. Relationship Between Agency and Developer. It is hereby acknowledged that the relationship between the Agency and the Developer is not that of a partnership or joint venture and that the Agency and the Developer shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein or in the Attachments hereto, the Agency shall have no rights, powers, duties or obligations with respect to the development, operation, maintenance or management of the Project. 705. Agency Approvals and Actions. The Agency shall maintain authority of this Agreement and the authority to implement this Agreement through the Agency Executive Director (or his duly authorized representative). Any reference to the Agency Executive Director herein shall be deemed to include such authorized representative. The Agency Executive Director, or his or her designee, shall have the authority to make approvals, issue interpretations, waive provisions, and/or enter into amendments of this Agreement on behalf of the Agency so long as such actions do not materially or substantially change the uses or development permitted on the Property, or materially or substantially add to the costs incurred or to be incurred by the Agency as specified herein, and such approvals, interpretations, waivers and/or amendments may include extensions of time to perform as specified in the Schedule of Performance. All other material and/or substantial interpretations, waivers, or amendments shall require the consideration, action and written consent of the Agency Board. 706. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. This Agreement is executed in two (2) originals, each of which is deemed to be an original. 707. Inte rag tion. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. This Agreement includes Attachment Nos. I through 14, which are incorporated herein. 708. Real Estate Brokerage Commission. The Agency and the Developer each represent and warrant to the other that no broker or finder is entitled to any commission or finder's fee in connection with the Developer's acquisition of the Property from the Agency. The parties agree to defend and hold harmless the other party from any claim to any such commission or fee from any other broker, agent or finder with respect to this Agreement which is payable by such party as a result of the actions of the indemnifying party. 709. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. '82/015610-0084 -52- 737414 08 a02/26/07 Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 710. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation". This Agreement shall be interpreted as though prepared jointly by both parties. 711. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 712. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. Developer shall be required to reimburse Agency for all costs Agency incurs in negotiating, preparing, and processing any such alterations, changes, or modifications. In connection with any request for an alteration, change or modification, Developer shall deposit with the Agency the sum of Ten Thousand Dollars ($10,000). Notwithstanding the foregoing, Agency's Executive Director shall have the discretion to authorize a lesser deposit, in the event he or she determines the proposed alteration, change or modification is minor. In the event the funds on deposit are depleted, Agency shall notify Developer of the same, and Developer shall deposit with the Agency an additional Five Thousand Dollars ($5,000) to complete processing of the requested alteration, change or modification. Developer shall make additional deposits to Agency, as needed, pursuant to the foregoing process, until the requested alteration, change, or modification is finalized. Within sixty (60) days after such alteration, change or modification is finalized, Agency shall reimburse the Developer any unused sums. 713. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 714. Computation of Time. The time in which any act is to be done under this Agreement is computed by excluding the first day (such as the day escrow opens), and including the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also excluded. The tern "holiday" shall mean all holidays as specified in Section 6700 and 6701 of the California Government Code. If any act is to be done by a particular time during the day, that time shall be Pacific Time Zone time. 715. Legal Advice. Each party represents and warrants to the other the following: they have carefully read this Agreement, and in signing this Agreement, they do so with full knowledge of any right which they may have; they have received independent legal advice from their respective legal counsel as to the matters set forth in this Agreement, or have knowingly 98210156IM084 737414 08 a02/26/07 -53- chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have freely signed this Agreement without any reliance upon any agreement, promise, statement or representation by or on behalf of the other party, or their respective agents, employees, or attorneys, except as specifically set forth in this Agreement, and without duress or coercion, whether economic or otherwise. 716. Time of Essence. Time is expressly made of the essence with respect to the performance by the Agency and the Developer of each and every obligation and condition of this Agreement. 717. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 718. Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. 719. Time for Acceptance of Agreement by Agency. This Agreement, when executed by the Developer and delivered to the Agency, must be authorized, executed and delivered by the Agency on or before forty-five (45) days after signing and delivery of this Agreement by the Developer or this Agreement shall be void, except to the extent that the Developer shall consent in writing to a further extension of time for the authorization, execution and delivery of this Agreement. [signatures on next page] 882/015610-0084 -54- 737414 08 a02/26/07 IN WITNESS WHEREOF, the Agency and the Developer have executed this Disposition and Development Agreement as of the date set forth above. APPROVED AS!TO FORM: RUTAN & TUC E LLP �— M. Katherine Jens Agency Counsel AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and polit' By: Executive Director DEVELOPER: LDD SILVERROCK, LLC, a Delaware limited liability company C Its: 882/015610-0084 —55- 737414 08 a02/26/07 ATTACHMENT NO. 1 PROPERTY LEGAL DESCRIPTION [To be Inserted] 88M 15610-0084 737414 08 a0226M EXHIBIT "A" LOT 3 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7° 10' 16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84°42'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10I1'10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21°42'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034' 17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS ' CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET; THENCE SOUTH 89°10'29" WEST 235.22 FEET; THENCE SOUTH 00000'00" EAST 140.01 FEET; THENCE SOUTH 89°10'29" WEST 273.96 FEET; THENCE NORTH 24°22'35" WEST 22.27 FEET; THENCE NORTH 33058'41" WEST 7.49 FEET; THENCE NORTH 71°08'05" WEST 26.96 FEET TO THE BEGINNING OF A NON -TANGENT 46.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 87031'26" A DISTANCE OF 70.27 FEET; THENCE NORTH 57029'35" WEST 12.72 FEET TO THE BEGINNING OF A 67.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39040'43" A DISTANCE OF 46.40 FEET TOA POINT OF REVERSE CURVATURE WITH A 96.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63020'45" A DISTANCE OF 106.14 FEET; THENCE NORTH 33°48'46" WEST 21.80 FEET; THENCE NORTH 33048'46" WEST 52.19 FEET; THENCE NORTH 26°06'10" WEST 72.34 FEET TO THE BEGINNING OF A NON -TANGENT 196.00 FEET RADIUS CURVE CONCAVE EASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 64121'31" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45049'59" A DISTANCE OF 156.79 FEET; THENCE NORTH 20011'30" EAST 110.45 FEET TO THE BEGINNING OF A 196.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44008'01" A DISTANCE OF 150.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 187.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46004'51" A DISTANCE OF 150.40 FEET; THENCE NORTH 22°09' 10" EAST 99.07 FEET TO THE BEGINNING OF A NON -TANGENT 210.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 67051'40" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47034'55" A DISTANCE OF 174.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50026'40" A DISTANCE OF 32.58 FEET TO A POINT OF REVERSE CURVATURE WITH A 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 64159'55" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 75009'02" A DISTANCE OF 107.55 FEET; THENCE NORTH 90000'00" EAST 428.65 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 855,764 SQ.FT. 19.646 ACRES SHEET 1 OF 2 EXHIBIT "B " LOT 3 TPM 33367 — -- — — —A—ME—RI—CA_N8937 CANAL --75' 8-T8- II �. / I I iz I I � I 4 I` i % 5 \ 6 I1 i I �I X �\ 7 � 4 I LOT J I _1sr, Ac�rE> II II =46t14 151 R ' -18Z00,-- L=150.40 I � I 1 I I I 0=454959" R=196.00 [=156. 79' N1611570"W_< I 72J4' I 11 I NJJ'4 '4G19 - \ 0=63 \ \ R= 91 SCALE: \ \ =16 7 "= 300' \ \ S900000E 42865' = R10005" 10 L=174.40' Il I ^� T 3 fee6'AC19=zrJ071" , II R=56700' L=172T I I I R=196 00' 17 50770'16' I L=150.97' /��J �124.73 --- - 14 N3348.46-W 17 /B i l -2180'6�=J9'40'43 H ,=26vo'" I R= 6700' R=50800' != 46.40' L=230.55 i' �=8731'16" S8970'29'YV R' 46.00' L= 70.17' r' 135.21' 8 S I W Lam' t $ S Y/ A. I 5"W S8970'29W 72' 27196' _ + I N24'2235'W I I 22.27' I I I ,Oi� III JOHN F. YOUNG Exp. 9-30-08 No. 4665 tl O)I of iI I I I I I I 8 9 17 16 SECRON COR REVISED TENTATIVE - - 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL OMAP3 33367 �I` 1"=500' PLANNING -CIVIL ENGINEERING - LAND SURVEYING - GEOIECHNICAL ajj 15 06 144, N0931EL HOAO SWEE 115 ESCONOIOO CA 92025 PH E76011X 6-495S RIVERSIDE COUNTY CAL EXHIBIT 'B A LOT 3 DATA TABLE No. I DELTA BEARING RADIUS LENGTH 1 S000712'E - 12324' 2 p=323448'" 183.00' 104.06' 3 p=3654'12" 267.00' 171.97' 141 1 S00 03'16 "W - 48.18' 5 1 p=4106'44" 32.00' 22.96' 6 1 p=12232'06" 6300' 134.73' 7 1 p=434549" 32.00' 24.44' 8 1 p =28 40'23" 633.00' 316.78" 9 1 p=0920'J8" 63J.00' 10323' 10 p =16 5836" 497.00' 14726' 71 p=4236'50" 26700' 198.58' 121 1 p=1073627' 29 50' 55.40' 13 p=0171'10" 614.85' 12.73' 14 S2742'36"W - 75.54' 15 p=00415 6 539.31, 7.23' 16 p=60'1757" 22.00' 23.15' 1/ 1 p=2434'17" 9300' J9.88' M p=515748" 3700' 3356' 19 N335841 "W - 7 49' P 26.96' p74" =50260W 3700' 3258' 22 p=282447" 82.00" 1 40,66' SHEET 2 OF 2 REVISED TENTATIVE "" 15-0068 Fqj CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1"=100' PLANNING CIVIL ENGI PEER ING - LAND SURVEYING- GEO9ECNN ICAL till OON➢EL ROAD SUITE 115 ESCONDIDO CA 92026. PH 17601 711.4955 LOT 3 w11/15/06 JPRi EXHIBIT "A" LOT THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO THE BEGINNING OF A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08017'50" A DISTANCE OF 48.22 FEET TO THE BEGINNING OF A 32.00 FEET RADIUS'CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST: THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1011' 10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034' 17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51 °57'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4008'25" A DISTANCE OF 36.71 FEET; THENCE SOUTH 6°34'32" EAST 103.90 FEET; THENCE SOUTH 89°10'29" WEST 250.00 FEET; THENCE NORTH 0°00'00" EAST 140.01 FEET; THENCE NORTH 89°10'29" EAST 235.22 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 33,888 SQ.FT, r• • �a F 0.78 ACRES F. RIVERSIDE COUNTY CALIFORNIA SHEET 1 OF 2 EXHIBIT "B" LOT 4 TPM 33367 i ALL AMERICAN CANAL � "— 6952'48hY I9667s' / � I LOT 2 46.9 ACRES ( LS 4665 LOT 11 6 \\ t — 8.7 ACRES 9 � LOT s 11 19,65 ACRES �27'JOT�L" R-567 L-272. ' — — — — — — — — — — — - mmllrw 1247J 12 -15 AT A-26170'll" i I R=50&00' I I L=2J055' T.P.O.S. N8970'29"E A=00625" 2JS12' 8 o 4 R-50F00' L- J6.71' L07 2.78 ACRE 50674 J2T 5697029"W 10J90' 250.00' I III � I LOT 5 I I I WAm- rpkl� CONSTRUCTION TESTING & ENGINEERING, INC. PLANNING CIVIL ENGINEERING - LAND SURVEYING - GEOTECHNICAL 1441 NONTIEL ROAD. SUITE 115 ESCONDIDD CA. 90096. PK:(710) 741.4955 JOHN F. YOUNG Exp. 9-30-08 No. 4665 PARCEL MAP 33367 LOT 4 I I I I NI �I I I !1 I 1 I I I I I I I 31 = I �I of of 21 I I I I I I I 8 9 17 16 SECA N COR I" 1"=300' 1 DE COUNTY CALIFORNIA EXHIBIT 'B' LOT 4 DATA TABLE No I DEL TAISEARING RADIUS LENGTH 1I SOOn7'12 E - 12324 121 1 p=323448" 18300' 104.06' 3 I p=36`54'12" 267.00' 171.97' F41 I A=0877'50" 333.00' 48.22 5 p=410644I 3200' 22.96' 6 I p=12232'06" 63 00' 134.73' 7 p =43 45'491 3200' 24, 44' 8 p=28'40'23" 633.00' 316.78' 9 p =0920 38I 633.00' 10323' 10 p=165836" 49700' 147.26' 11 p=423650" 267.00' 198.58' 11 p = l07'J6'27" 29.50 55.40' 13 p=0171'10" 614.85' 12.73' 14 S21'4236"W - 75.54' 15 p=00'46'06" 539.31' 7.23' 16 p=607757" 22.00' 2315' 17 p=2434'17" 93.00' 39.88' 16 1 p=515748" 37.00' 3356' SHEET 2 OF 2 REVISED TENTATIVE 1- 16-0066 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 PLANNING - CIVIL ENOISEEMNO-LAND SURVEYING-GEOTECNNICAL LOT 4 1441 NONTIEL ROAD, SUITE 115 ESCONOIGO CA. 12021, PN:)IUO) 11/-4155 11 jj Q6 JPR EXHIBIT "A" LOT 5 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 101 P 10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30008'36" A DISTANCE OF 267.26 FEET; THENCE SOUTH 6°34'32" EAST 103.90 FEET; TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 6°34'32" EAST 240.83 FEET TO THE BEGINNING OF A 1312.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13051'15" A DISTANCE OF 317.24 FEET; THENCE SOUTH 7016'43" WEST 281.12 FEET; THENCE NORTH 90000'00" WEST 248.02 FEET TO THE A POINT ON THE ARC OF A NON -TANGENT 62.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 75*01'19" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CUREVE THROUGH A CENTRAL ANGLE OF 105017'29" A DISTANCE OF 113.94 FEET; THENCE SOUTH 68°05'01" WEST 58.78 FEET TO THE BEGINNING OF A 290.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 53043'38" A DISTANCE OF 271.94 FEET TO A POINT OF COMPOUND CURVATURE WITH A 130.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88002'34" A DISTANCE OF 199.76 FEET TO A POINT OF REVERSE CURVATURE WITH A WITH A 128.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45009'13" A DISTANCE OF 100.87 FEET; THENCE NORTH 15°18'00" WEST 77.53 FEET TO THE BEGINNING OF A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37034'59" A DISTANCE OF 41.32 FEET; THENCE NORTH 22°16'59" EAST 85.32 FEET TO THE BEGINNING OF A 220.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18049'53" A DISTANCE OF 72.31 FEET TO A POINT OF REVERSE CURVATURE WITH A 46.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 84039' 14" A DISTANCE OF 67.96 FEET; THENCE NORTH 88°06'20" EAST 44.44 FEET TO THE BEGINNING OF A 72.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64022'26" A DISTANCE OF 80.89 FEET TO A POINT OF COMPOUND CURVATURE WITH A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67016'50" A DISTANCE OF 117.43 FEET; THENCE NORTH 56038'44" WEST 26.25 FEET; THENCE NORTH 89°10'29" EAST 523.96 FEET TC THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 517,687 SQ.FT. 11.88 ACRES 0�xf?�= JOHN F. YOUNG, PL 4665 RIVERSIDE COUNTY CALIFORNIA SHEEr of 2 EXHIBIT "B" LOT 5 TPM 33367 _ -_-- _ I •x _—�. _I —AU—JI IERICA/Y L41AIAL— -----� �— / \\ 895248 1988.75' I I v l I I 6 I I I r nr 11 �\ E AO:IEE � �------- �I Of ece acwEs �, 11� A=27JO21' I R=56700' I �1 07 5 ��• L=27220' 50770uw I 124.7J' I I 1i� L=J0V8J6' I I I II R=508.00' I L=26726' 31 J9 nnYES 506J4J2f N897 79 f -+ 1 I0390' \ S2J96' �I IPOR I LOT i0 O LOT 6 I I G MW Aa & I I SCALE "= 400' 9 6 SE17 OR LAND JOHN F. YOUNG Exp. 9-30-08 / * No. 4665 Q ���� .• ,rl-- _,„ 'IV I S 46Fi.�-'J I��� OF REVISED TENTATIVE INNING 1s—oose SCALE 1'=400' CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 PLANNING CIVIL ENGINEERING -LAND SUNVEYNIG.GEOLECHNICAL 1441 NON➢EL ROAD SUITE M ESCONDIDO CA 92096, PH I1601116 4955 LOT 5 M 2 05 06 mw9N OTC SHEET 2 OF 2 EXHIBIT LOT 5 DATA TABLE No. I DEL TA BEARING RADIUS LENGTH III I S00'07'12'E - 12J24 121 1 p=J234'48" 18J.00' 104.06' 3 p=3654'12' 267.00' 171.97' 41 1 p=087750" JJ3.00' 48.22' 5 p=41'0644" 3200' 2296' 6 L=12232'06" 63.00' 134.73' 7 p=43'4549" 3200' 24.44' 8 p=284023" 63300' 316.78' 9 p=0920:38" 63300' 10J23" 10 p=1658'36" 49700' 147.26' 11 p=4236'50" 26700' 198.58' 12 p=1073627" 29.50' 55.40' 73 p=01'ino" 614.85' 12.73" 14 S21'42'36"W - 75.54' 15 p=0046'06" 539.31" 723' 16 p=60'17'57" 22.00' 23.15' 77 p=2434'77" 9J..00' 39.88' 18 p=515748" 37.00' 33.56' 19 S0634 J2'E - 240.83 P p=13505" 1312.00' 31724' 22 S077643"W - 28112' 23 N9000'00"W - 248.02' 24 p=1057729'" 62. 00' 113.94' 5 S68 05 "Ol "W - 58.78' 6 p=53'4338" 290.00' 271.94' p=88'0234 " 130.00' 199, 76' 8 p=4509'13" 128.00' 100,87' 29 N15'18'00"W - 7753' 30 p =3734 "59" 63 00' 41.32' 31 N22'16'59 E - 85.32' 32 p=18'49'53" 220.00' 72.31 " 33 p=8439'14" 46.00" 67.96' 34 N8B0620 E I - 44.44' J5 p =64 2226" 1 72.00" 80.89" 36 p=67'16'50" 700.00" 34.40' 1 381 N563844"W - 26.25' REVISED TENTATIVE —- 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1"=400' PLANNING -CIVIL ENGINEENING- LAND SUIRMING GEUi EGHNIOAL 1411 NON7IFL 00A0 SU19E 115 ES60N0100 01 91016, PH II66I 1l 1966 LOT 5 12/05T06 OTO EXHIBIT "A" LOT 11 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1922.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007' 12" EAST 123.24 FEET TO THE BEGINNING OF A 117.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 66.53 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28027' 17" A DISTANCE OF 165.38 FEET TO A POINT OF INTERSECTION WITH A NON -TANGENT 150.00 FEET RADIUS CURVE HAVING A RADIAL LINE TO WHICH BEARS SOUTH 0003'38" EAST, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47019'48" A DISTANCE OF 123.91 FEET TO A POINT OF REVERSE CURVATURE WITH A 899.20 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20°39'06" A DISTANCE OF 324.11 FEET TO A POINT OF COMPOUND CURVATURE WITH A 450.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41017'02" A DISTANCE OF 317.27 FEET; THENCE NORTH 75°20'02" EAST 130.18 FEET TO THE BEGINNING OF A 200.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50029'26" A DISTANCE OF 176.25 FEET; THENCE SOUTH 54°10'32" EAST 36.66 FEET TO THE BEGINNING OF A 75.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71028'15" A DISTANCE 93.56 FEET; THENCE SOUTH 17017'43" WEST 74.78 FEET TO THE BEGINNING OF A 90.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65055'38" A DISTANCE OF 103.56 FEET; THENCE SOUTH 48037'55 EAST 196.68 FEET TO THE BEGINNING OF A 125.00 FEET RADIUS CURVE CONCAVE WESATERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 73004'09" A DISTANCE OF 159.41 FEET; THENCE SOUTH 24026'14" WEST 59.02 FEET TO THE BEGINNING OF A 175.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65°24'55: A DISTANCE OF 189.12 FEET; THENCE SOUTH 89°51'09" WEST 116.33 FEET TO THE BEGINNING OF A 140.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 94018'57" A DISTANCE OF 230.46 FEET; THENCE NORTH 4°10'06 EAST 111.79 FEET TO THE BEGINNING OF A 115.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81018'13" A DISTANCE OF 149.84 FEET; THENCE NORTH 77°08'07" WEST 16.05 FEET TO A POINT OF INTERSECTION WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 68139'29" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41027'06" A DISTANCE OF 240.91 FEET TO A POINT OF COMPOUND CURVATURE WITH A 563.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 166.82 FEET TO A POINT OF REVERSE CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37017'37" A DISTANCE OF 369.06 FEET TO A POINT OF COMPOUND CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50025'57" A DISTANCE OF 28.17 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63051'20" A DISTANCE OF 70.21 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54046'50" A DISTANCE OF 30.60 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5019'20" A DISTANCE OF 24.80 FEET TO A POINT OF COMPOUNF CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8026'55" A DISTANCE OF 49.10 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 375,971 SQ.FT, s� R�L*j v WE •4% as . . 8.631 ACRES I II.P.O.B. LOr ® 48.94 ACRE6 I LOT 23 3.82 ACRES \ I� I I I� � I I� E I I t � - � I i I I I I I o I \ a 1 1 o \ o \SCALE: 1 "=300' ASIDE COUNTY CALIFORNIA EXHIBIT "B" LOT 11 TPM 33367 COACHELLA CANAL --------- ------- 8952'48'W 192275' 1 LOrl12 29.9 ACRES 2 LOT' 3 19,66 ACRES ------------ I— LOr 4 LOT 5 S/o6 \ LOT 11 1 &7 ACRE6 /9 II F. YOUNG Exp. 9-30-08 No. 4665 SHEET 1 OF 2 I I I I I I I I I I I NI Ono I ---lla I I I I I I I 819 17 16 SECA N Cl REVISED TENTATIVE -- 15-00e8 Fq jC�?ONSTRUCTION TESTING &ENGINEERING, INC. PARCEL MAP 33367 NNING CIVIL E N SINE ERIN GI AND SURVEYI NG6EOTECXXICAL MONTIEL ROAD. SUITE 115 ESCONDIDO CA 99096, PN:p601 744-4965 LOT 1 1 t i ZQ Q6 JPR SHEET 2 OF 2 EXHIBIT LOT 11 DATA TABLE No. I DELTA EARING RADIUS LENGTH SOOti712 E — 123.24 F21 I 0=323448" 117.00' 66.53' 0=2827'17' 333.00' 165.38' 41 1 A=477948' 150.00' 123.91' =203906 89920 324.11 6 1 0=417701 450.00 324.24' 7 1 N757002 E — 130.18 8 1 L=5029260200.00 176.25' 9 1 5547032E — I 36.66 10 0=717815 75.00' 93.56' 11 5177743 W — 74.78 12 0=655538 90.00 157156 13 1 S483755E — 196.68 14 1 A=73194'09" 125.00' 159.41 15 S2476'14'W — 59.02 16 0=657455" 175.00' A 199.80 1 S895109"W -P. 116.33 18=94785i 23046' N047006 f 111.79 =8178'13" 163.19 N77718 07 W 16.05 0=4177'06 240.91 A=16*5876 166.82 4 A=377737' 369.06' A=5075'S7' 28.17' p=63*5120 TO21 A=544650 30.60' A= 157920' 24.80' 9 0 =087655" 49. f0' CONSTRUCTION TESTING & ENGINEERING, INC. I 'PARCEL LOT 1 1 MAP 33367 PLANNING CIVIL ENGINEERING LAND SURVEYING - GEOEECNXICAI 1441 NONIIEI ROAD GUILE 115 ESCONOIDO CA 92026 PH p601116-1955 15-0068 1"=too' EXHIBIT "A" LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5 AND THE NORTH WEST QUARTER OF THE NORTH WEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 41057'54" WEST 674.79 FEET; THENCE NORTH 88°27'35" WEST 244.20 FEET; THENCE NORTH 7°47'15" WEST 289.62 FEET; THENCE NORTH 83°26'27 EAST 398.98 FEET; THENCE SOUTH 29058'01" EAST 952.82 FEET; THENCE SOUTH 52039'03" EAST 485.41 FEET; THENCE SOUTH 57°16'16" EAST 463.15 FEET; THENCE SOUTH 30°58'20" WEST 183.52 FEET TO THE BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 10057'45" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A 118.00 FEET RADIUS CURVE HAVING A RADIAL TO WHICH BEARS SOUTH 21049'41" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40120'08" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30032'16" A DISTANCE OF 45.84 FEET; THENCE SOUTH 28000'41" EAST 18.67 FEET; THENCE SOUTH 61059'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 57000'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.84 FEET RADIUS CURVE CONCAVE NORTHEASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 20004'07" EAST; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36031'16" A DISTANCE OF 145.23 FEET; THENCE NORTH 33024'37" WEST 99.07 FEET; THENCE NORTH 66°23'28" EAST 120.28 FEET; THENCE NORTH 23138'13" WEST 532.29 FEET; THENCE NORTH 41 °57'54" WEST 149.34 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 600,614 SQ. FT. 13.79 ACRES �- �No. 4666 Ay� ! I C f 6� YllOIC OHN F. YOU , PL 665 DA EXHIBIT 'B' LOT 19 � I 3gg 98 1 1 II � l I 1 I 241129 I \ I II I lg rr. 1 dCC&55ROAD __-- ��----_--_ -- — --------- ----- I LOT A III " I e I LOT W 8 LOT A I III N3374J �0•�k ,�' a I I 97.34' p=.7 A MV 9 I I faldl�, I I III 4m9'W III LAND b JOHN F. YOUNG A E Exp. 9-30-08 +ese e tc; SCALE: 1 "—JOO' 'JOHN F. YOU S 4665 IDATE REVISED TENTATIVE 15-W W CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 °0NL 1•=J00 CAL PR YOIITIEL ROAD ENGINEERING - I t EESCOMOIIOO CAR 0102 R SURVEYING 1/8I /LI4055 FOR LOT 19 10 28 JPR EXHIBIT "A" LOT 22 THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 1321.32 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 8; THENCE SOUTH 0000'57" WEST ALONG THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER 896.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 84°57'26" EAST 1 15.10 FEET; THENCE SOUTH 80055'40" EAST 31.00 FEET; THENCE SOUTH 10'58'24" WEST 69.75 FEET; THENCE SOUTH 10°36'56" WEST 57.87 FEET; THENCE SOUTH 8017'25" EAST 35.32 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO WHICH BEARS SOUTH 68010'42" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66018'23" A DISTANCE OF 65.96 FEET; THENCE SOUTH 48116'59" WEST 4.08 FEET; THENCE SOUTH 61045"27" WEST 4.67 FEET; THENCE SOUTH 63°23'36 WEST 6.23 FEET; THENCE SOUTH 57017' 10" WEST 6.01 FEET; THENCE SOUTH 59028'05" WEST 5.26 FEET; THENCE SOUTH 70005'07 WEST 5.56 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO WHICH BEARS NORTH 13018'47" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50056'06" A DISTANCE OF 50.67 FEET; THENCE SOUTH 48°18'02" WEST 13.21 FEET; THENCE SOUTH 20°03' 17" WEST 15.59 FEET; THENCE NORTH 69051' 12" WEST 40.59 FEET; THENCE SOUTH 24' 11'42" WEST 78.02 FEET; THENCE NORTH 64037'29" WEST 151.50 FEET; THENCE NORTH 29°10'52" EAST 266.14 FEET; THENCE NORTH 84057'26" EAST 53.90 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 63,531 SQ. IT. `W iOHN F. W+ . 1.46 ACRE SHEET 1 OF 2 ml 615 7 8 N893223r 131 32, I� It EXHIBIT 'B' LOTS 20 & 22 LOT B SEC110N UNE�- - SCALE.- 1 "=100' 22 Lar A Lar 20 Lar A v JOHN F. YOUNG END. 9-30-08 * Na /803 OHN F. YOU�S4665 ATE OF CA��E� CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLANING - CIVIL1 MORTIEI ROAOESUITEE11S ESCONDIDO OA 92026OAN MITE 716I ck 1111 59 FOR LOTS 20 & 21 INN' 1"=100' SHEET 2 OF 2 EMBIT 'B' LOPS 20 & a DATA TABLE No. I DaTALBEARING RADIUS LENGTH L=3'4019 950.00 60.88 2 A=44Y18'05' 60.00 46.22' N24V E - 50.28' 4 S697 f - 40 59 5 N20'0317 E - 15.59 N487802 E - 1321 7 p =5056 06 57.00' 1 50.67 70U50 E K592805 - 5.56 E - 5.26 10 N577 10 E - 6.01 11 N637336 E - 6.23 12 N614527 E - 4.67 13 N4876 59 E - 4.08 14 SO87725 E 15 580540E - 31.00 CONSTRUCTION TESTING & ENGINEERING, INC, I FOR LOTS 20 & 21 PARCEL MAP 33367 PLANNING -CIVIL ENGINEERING - LAND SURVEYING GEOTECNNICAL IAn LI DNTI, ROAD, SUITE IIS ESCONDIDO CA S202%. PN p6AI 1A5 4656 EXHIBIT "A" LOT 23 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89152'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE NORTH 90°00'00" WEST 428.65 FEET TO A POINT ON THE ARC OF A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 86°35' 18" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46044' 15" A DISTANCE OF 66.89 FEET; THENCE NORTH 50008'57" WEST 134.38 FEET TO THE BEGINNING OF A 47.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29029'38" A DISTANCE OF 24.19 FEET; THENCE NORTH 4°13'09" WEST 26.65 FEET; THENCE NORTH 16°50'59" WEST 18.54 FEET; THENCE NORTH 28012'57" WEST 19.28 FEET TO THE BEGINNING OF A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54007'55" A DISTANCE OF 34.96 FEET; THENCE NORTH 27009'48" EAST 40.67 FEET TO THE BEGINNING OF A 250.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22050'21" A DISTANCE OF 99.65 FEET TO A POINT OF REVERSE CURVATURE WITH A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 85040'33" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54026'03" A DISTANCE OF 77.90 FEET; THENCE NORTH 27059'09" EAST 16.70 FEET TO THE BEGINNING OF A 56.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28038'36" A DISTANCE OF 28.00 FEET; THENCE NORTH 19°10'35" EAST 27.25 FEET TO THE BEGINNING OF A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35032'06" A DISTANCE OF 62.02 FEET, THENCE NORTH 40°04'06" WEST 64.22 FEET; THENCE NORTH 4299'54" WEST 47.50 FEET; THENCE NORTH 37°36'08" WEST 102.14 FEET TO A POINT ON SAID SOUTHERLY RIGHT-OF-WAY OF THE ALL AMERICAN CANAL; THENCE NORTH 89052'48" EAST ALONG SAID RIGHT-OF-WAY 215.01 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 166,459 SQ.FT. 3.82 ACRES SCALE: 1 "=300 !SIDE COUNTY CALWORNIA SHEET I of 2 EXHIBIT "B " LOT 23 TPM 33367 QA GIJA-0ALA. CANAL- _ - i _ ,o.Off I LOT 23 I 3.82 AOR68 L -) 20.ACA¢El _ 6 0` 2E J R=6JJ � I 1-316J8 k7' ACRES -5T 3 A66 ACRES I F. YOUNG Exp. 9-30-08 No. 4665 I II I I I I I I 31 . I AI of zl I I I I REVISED TENTATIVE - 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1•=300' PLANNING - CIVIL ENOI N EENING - LAND SO NVEYING- GEOYECH I ICAL 9F. 1441 YONEIEL ROAD. S91YE 115 ESCONDIDO CA. 92026, PHT60, 7OSd055 LOT 23 11�15 06 JPR SHEET 2 OF 2 EXHIBIT 'B' LOT 23 DATA TABLE No. DELTA BEARING RADIUS LENGTH IF 500'07"12 E — 12324 2 p=J2J4'49" 183.00" 104.06' 3 A=3654'12" 267.00' 171.97' �=87750" 333.00' 48.22 �=410644" 32.00' 22.96' L=12232'06" 6300' 134.73' p=43'45'49" 32.00' 24.44' IIIN16*50'59"W 4415" 8700' 66.89' �=292938 47.00" 24.19' N0473'09"W — 26.65' — 18.54' 11 N287257"W 1 19.28 13 Z� =54 0755 37.00 34.96' 14 1 N27'09'48 E — 40.67' 15 L=225021 250.00' 99.65' 16 0=5426'03" 82.00' 77.90' 17 N2759'09"E — 16.70' 18 L=283836 56.00' 28.00' 19 N1970'35"E — 2725' 0 p=3532'06" 100.00' 62.02' I N4004'06"W — 64.22 2 N4239'54"W — 4750 3 N3736'O8"W — 102.14 CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLAN NI 1 NOXi IEL ROIAO ENGINE 001 E116 ESC00000 CA. 00Of0 16PH 11E0) 746d CAL 144055 LOT 23 15-0068 1'=1oo' ATTACHMENT NO.2 SITE MAP [To be Inserted] 182/015610-0034 737414 08.02/26/07 I •1 '' luumuuelauulnllnnn�� III 1 I l ° Ii jjjjfjjj aaaaaama alaiaa�iaaaaiaiaaaaaa 1 1 ij! j 01 dE@8 is ji lEhuleg l l�•! 1!!'leleiuiai ►--� G' J : t•I �° it tl; `I 1d 11 �� n t11'IIIII'1"'� iI it It: ►t II Iltttt �i..................... ,,,,,,,,,,,,,,,,,,,,,, �jO l° :•i ::` :I :It :°� :1 fjj jjjj$jj jjj��jj III 1 I � II° /�/--, at 16ialall all?Itld°t•i°I d�dE�Ei i �ie�eiieeeeeiiie5eeeii'fseeeeeiili II lI � I I� ii:: elaln 1 11 life. li Iy W F al W i p�hlli MiraVie lips I Wv M rWg Sm 3H1 c!fl�d aq�;e��.� C 6 if e' � •I II 15_ I I . I I . I I I • IL r___ I ATTACHMENT NO.3 PURCHASE PRICE Parcel Purchase Price Boutique Hotel Parcel $3,309,600 Parcel Initial Purchase Price Ranch Villas Parcel $585,000 Resort Hotel Parcel $3,930,000 Black Box Parcel $156,000 Resort Retail Village Parcel $2,069,971 Golf Casitas Parcel $1,726,000 Lake Casitas Parcel $764,000 The Purchase Price for each of the Golf Casitas Parcel, Lake Casitas Parcel, Ranch Villas Parcel, Resort Hotel Parcel, Resort Retail Village Parcel (if sold to Developer), and Black Box Parcel shall be determined in the following manner: On or before the third anniversary of the Effective Date of the DDA, and on or before the close of each subsequent three (3) year period until all Parcels have been sold and conveyed to Developer, Developer and Agency shall select an appraiser reasonably acceptable to both parties and commission an updated appraisal reflecting the fair market value of any of the Parcels that have not, as of said date, been sold to Developer (each, an "Appraisal'). Except as provided below, Agency shall be responsible for all of the costs associated with each of said Appraisals. The Purchase Price for each Parcel (except the Boutique Hotel Parcel) shall be the fair market value of the Parcel, as set forth in the most recent Appraisal. Subject to the following sentence, the Purchase Price for the Boutique Hotel Parcel shall be as set forth above. Notwithstanding anything herein to the contrary, in the event any of the Parcels, including, without limitation, the Boutique Hotel Parcel, are sold to Developer within three (3) years after the Effective Date, and the acreage of the Parcel, as indicated by the final and recorded Parcel Map, differs from the acreage set forth herein, then the Purchase Price for said Parcel shall be recalculated, based on the following price per acre: (i) Two Hundred Forty Thousand Dollars ($240,000) per acre for the Boutique Hotel Parcel; (ii) Two Hundred Forty Thousand Seven Hundred Forty -One Dollars ($240,741) per acre for the Ranch Villas Parcel; 892/015610-0084 737414 08 a02/26/07 (iii) Two Hundred Thousand Dollars ($200,000) per acre for the Lake Casitas Parcel, Golf Casitas Parcel, Resort Hotel Parcel, and Black Box Parcel; and (iv) One Hundred Seventy -Four Thousand Two Hundred Forty Dollars ($174,240) per acre for the Resort Retail Village Parcel. Notwithstanding anything herein to the contrary, in the event Michael A. Scarcella is still an MAI appraiser at the time of an Appraisal, Mr. Scarcella shall be retained to perform any Appraisal required hereunder. In the event Michael A. Scarcella is no longer an MAI appraiser providing appraisal services at the time of an Appraisal or is not available to perform the Appraisal, and Agency and Developer cannot agree on an appraiser, either Developer or Agency may notify the other party, in writing, that they are invoking the following process, and such process shall then apply: Developer shall select, and shall be responsible for all of the costs for, an independent and qualified MAI appraiser to perform the Appraisal. Within five (5) business days after Developer's receipt of the Appraisal, Developer shall deliver to Agency a copy thereof. If Agency does not agree with Developer's Appraisal, Agency shall notify Developer in writing within five (5) business days after receipt thereof. Within sixty (60) days thereafter, or such additional time reasonably necessary for completion, Agency, at its cost, shall deliver to Developer an Appraisal prepared by an independent and qualified MAI appraiser. If Developer's Appraisal is higher than Agency's Appraisal, then Developer's Appraisal shall be used to determine the Purchase Price for any Parcels not yet purchased. If Developer's Appraisal is lower than Agency's Appraisal, but less than or equal to five percent (5%) lower, the average of Developer's Appraisal and Agency's Appraisal shall be used to determine the Purchase Price of any Parcels not yet purchased. If Developer's Appraisal is lower than Agency's Appraisal, and is more than five percent (5%) lower, Agency and Developer shall appoint, and shall share the cost of, a third independent and qualified MAI appraiser who shall perform a review Appraisal and shall render a determination of the fair market value of the Parcels not yet purchased. If Agency and Developer cannot agree on a third appraiser, then an amount equal to seventy-five percent (75%) of the difference between Agency's Appraisal and Developer's Appraisal shall be added to Developer's Appraisal and said amount shall be used to determine the Purchase Price of any Parcels not yet purchased. Notwithstanding anything herein to the contrary, the Purchase Price for the Resort Retail Village Parcel shall be applicable only if said Parcel is sold in fee to Developer. 882/015610-0084 -2- 737414 08 a02/26/07 ATTACHMENT NO.4 FORM OF GRANT DEED [See Following Pages] 882/015610-0084 737414 08 .0226/07 RECORDING REQUESTED BY, MAIL TAX STATEMENTS TO AND WHEN RECORDED MAIL TO: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Attn: Theodore R. Lennon, Jr. This document is exempt from payment of a recording fee pursuant to Government Code Section 27383 GRANT DEED ( Parcel) For valuable consideration, receipt of which is hereby acknowledged, The LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), acting to carry out the Redevelopment Plan ("Redevelopment Plan") for the La Quinta Redevelopment Project Area No. 1 (the "Project Area"), under the Community Redevelopment Law of California, hereby grants to LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"), the real property hereinafter referred to as the "Parcel," described in Exhibit A attached hereto and incorporated herein, subject to the existing easements, restrictions and covenants of record described there. 1. Reservation of Mineral Rights. Agency excepts and reserves from the conveyance herein described all interest of the Agency in oil, gas, hydrocarbon substances and minerals of every kind and character lying more than five hundred (500) feet below the surface, together with the right to drill into, through, and to use and occupy all parts of the Parcel lying more than five hundred (500) feet below the surface thereof for any and all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances or minerals from said Parcel or other lands, but without, however, any right to use either the surface of the Parcel or any portion thereof within five hundred (500) feet of the surface for any purpose or purposes whatsoever, or to use the Parcel in such a manner as to create a disturbance to the use or enjoyment of the Parcel. 2. Parcel Conveyance in Accordance With Redevelopment Plan, Disposition and Development Agreement. The Parcel is conveyed in accordance with and subject to the Redevelopment Plan for the La Quinta Redevelopment Project Area No. 1 ("Redevelopment Plan") which was approved and adopted by Ordinance No. 43, on November 29, 1983, of the City Council of the City of La Quinta, and a Disposition and Development Agreement entered into between Agency and Developer dated December 18, 2006 (the "DDA"), a copy of which is on file with the Agency at its offices as a public record and which is incorporated herein by reference. The DDA generally requires the Developer to construct and operate on the Parcel a [Project Description] (the "Phase Development'), and other requirements as set forth therein. All terms used herein shall have the same meaning as those used in the DDA. 3. Permitted Uses. The Developer covenants and agrees for itself, its successors, its assigns, and every successor in interest to the Parcel or any part thereof, that upon the date of this 882/015610-0084 737414 08 a02/26/07 Grant Deed ("Grant Deed") and during construction through completion of development and thereafter, the Developer shall devote the Parcel to the uses specified in the Redevelopment Plan for the periods of time specified therein. All uses conducted on the Parcel, including, without limitation, all activities undertaken by the Developer pursuant to the DDA, shall conform to the DDA, the Redevelopment Plan, and all applicable provisions of the City Municipal Code. The foregoing covenants shall run with the land. 4. Restrictions on Transfer. The Developer further agrees that, except as permitted or approved by the Agency pursuant to Section 703 of the DDA, (i) until the Developer obtains a Release of Construction Covenants for the Phase of Development, no voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the Parcel or the Phase of Development thereon, and (ii) for a period of ten (10) years, commencing upon the date Developer obtains a Release of Construction Covenants for the Phase of Development, Developer shall retain full managerial and operational control of the Phase of Development. 5. Binding on Successors. All of the terms, covenants and conditions of this Grant Deed shall be binding upon the Developer and the permitted successors and assigns of the Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall include any other successors and assigns as herein provided. 6. Nondiscrimination. The Developer herein covenants by and for itself, its heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the Developer itself or any person claiming under or through Developer, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. The Developer shall refrain from restricting the rental, sale or lease of the Parcel on the basis of race, color, religion, sex, marital status, ancestry or national origin of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: (a) In deeds: "The grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land". 882/0156104084 _2_ 737414 08.02/26/07 (b) In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: "That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises herein leased". (c) In contracts relating to the disposition of the realty: "There shall be no discrimination against or segregation of, any person, or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or herself or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises". 7. Agency's Right of Reverter and Power of Termination. The Agency has the right, at its election, to reenter and take possession of the Parcel, with all improvements thereon, and terminate and revest in the Agency the estate conveyed to the Developer, subject to all liens and other matters of record, if after the closing and prior to the Agency's issuance of the Release of Construction Covenants for the Phase of Development, the Developer (or its successors in interest) shall: a. fail to start construction of the Phase of Development as required by the DDA for a period of ninety (90) days after written notice thereof from the Agency; or b. abandon or substantially suspend construction of the Phase of Development required by the DDA and fail to resume construction within ninety (90) days after written notice thereof from the Agency; or C. contrary to the provisions of Section 703 of the DDA Transfer or suffer any involuntary Transfer in violation of the DDA, and such Transfer is not rescinded within sixty (60) days of notice thereof from the Agency. For purposes of this Grant Deed, the term "construction" shall mean excavation work or physical construction, but shall not include any grading work completed by Developer on the Parcel prior to the execution date hereof. Such right to reenter, terminate and revest shall be subject to and be limited by, shall not defeat, render invalid or limit, and shall be subordinate to: Any mortgage or deed of trust permitted by the DDA; or 882/015610-0084 _3_ 737414,08 a02126/07 2. Any rights or interests provided in the DDA for the protection of the holders of such mortgages or deeds of trust. Upon the revesting in the Agency of title to the Parcel as provided in this Section 7, the Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to resell the Parcel as soon and in such manner as the Agency shall find feasible and consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be amended, to a qualified and responsible party or parties (as determined by the Agency) who will assume the obligation of making or completing the Phase of Development, or such improvements in their stead as shall be satisfactory to the Agency and in accordance with the uses specified for such Parcel or part thereof in the Redevelopment Plan. Upon such resale of the Parcel, the net proceeds thereof after repayment of any mortgage or deed of trust encumbering the Parcel which is permitted by the DDA, shall be applied: i. First, to reimburse the Agency, on its own behalf or on behalf of the City, all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but specifically, including, but not limited to, any expenditures by the Agency or the City in connection with the recapture, management and resale of the Parcel or part thereof (but less any income derived by the Agency from the Parcel or part thereof in connection with such management); all taxes, assessments and water or sewer charges with respect to the Parcel or part thereof which the Developer has not paid; any payments made or necessary to be made to discharge any encumbrances or liens existing on the Parcel or part thereof at the time or revesting of title thereto in the Agency, or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults or acts of the Developer, its successors or transferees; any expenditures made or obligations incurred with respect to the making or completion of the improvements or any part thereof on the Parcel, or part thereof; and any amounts otherwise owing the Agency, and in the event additional proceeds are thereafter available, then ii. Second, to reimburse the Developer, its successor or transferee, up to the amount equal to the sum of (a) the costs incurred by Developer for the acquisition and development of the Parcel and for the improvements existing on the Parcel at the time of the reentry and possession, less (b) any gains or income withdrawn or made by the Developer from the Parcel or the improvements thereon. Any balance remaining after such reimbursements shall be retained by the Agency as its property. The rights established in this Section 7 are not intended to be exclusive of any other right, power or remedy, but each and every such right, power, and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy authorized herein or now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact that the Agency will have conveyed the Parcel to the Developer for redevelopment purposes, particularly for development of the Phase of Development, and not for speculation in undeveloped land. 8. Violations Do Not Impair Liens. No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or 882/015610-0084 _4_ 737414 08 a02/26/07 render invalid or in any way impair the lien or charge of any mortgage or deed of trust or security interest permitted by Section 703 of the DDA. 9. Covenants Run With Land. All covenants contained in this Grant Deed shall be covenants running with the land. All of Developer's obligations hereunder, except as otherwise provided hereunder, shall terminate and shall become null and void upon the expiration of the effectiveness of the Redevelopment Plan. Every covenant contained in this Grant Deed against discrimination contained in paragraph 6 of this Grant Deed shall remain in effect in perpetuity. 10. Covenants For Benefit of Agency. All covenants without regard to technical classification or designation shall be binding for the benefit of the Agency, and such covenants shall run in favor of the Agency for the entire period during which such covenants shall be in force and effect, without regard to whether the Agency is or remains an owner of any land or interest therein to which such covenants relate. The Agency, in the event of any breach of any such covenants, shall have the right to exercise all the rights and remedies and to maintain any actions at law or suits in equity or other proper proceedings to enforce the curing of such breach. The covenants contained in this Grant Deed, without regard to technical classification, shall not benefit or be enforceable by any owner of any other real property within or outside the Project Area, or any person or entity having any interest in any other such realty. 11. Amendments to Redevelopment Plan. No amendment to the Redevelopment Plan shall require the consent of the Developer, but no such amendment shall diminish or restrict the Developer's rights or expand the Developer's obligations hereunder or under the DDA without the Developer's consent, except as required by State law. Date: ATTEST: Secretary of the Agency APPROVED AS TO FORM: RUTAN & TUCKER, LLP M. Katherine Jenson Agency Counsel AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic M. Executive Director 882/015610-0084 737414 08 a02/26/07 Date: DEVELOPER: LDD SILVERROCK, LLC, a Delaware limited liability company C Its: 882/015610-0084 _6_ 737414 08 a02126/07 STATE OF CALIFORNIA ) ) ss COUNTY OF On a Notary Public, personally appeared before me, personally known to me (or proved to me on the basis of satistactory evtaence) to oc me 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] STATE OF CALIFORNIA ) ) ss COUNTY OF On a Notary Public, personally appeared Notary Public before me, personally known to me (or proved to me on the basis of satistactory evtaence) w oe u,o person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0084 _7_ 737414 08 a02/26/07 EXHIBIT A LEGAL DESCRIPTION OF PARCEL [TO BE INSERTED] 882/015610-0084 737414 08 a02/26/07 ATTACHMENT NO. 5 SCOPE OF DEVELOPMENT I. GENERAL SUMMARY This document outlines the general requirements for the improvements to be constructed on the Property. Specific details are addressed in the SilverRock Specific Plan 2006-080, as amended by Resolution No. 2006-083, which was duly adopted by the City Council on July 18, 2006 ("Specific Plan"), and in the construction plans that will be prepared for the development. The Property is located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, and is approximately 58.97 acres in size. The Specific Plan provides for the development of a commercial development project that contains all of the following: a luxury boutique hotel and related amenities, a resort hotel and related amenities, resort -style condominium/casitas units, two parking structures, and a resort retail village. The Specific Plan sets forth the maximum number of Units that may be developed in (i) the Boutique Hotel, (ii) the Ranch Villas Development, and (iii) the Resort Hotel, Golf Casitas Development, and Lake Casitas Development. Notwithstanding that this Agreement does not set forth a "minimum" number of Units that must be developed in each Phase of Development, Developer acknowledges that the Agency's intent in entering into this Agreement is to achieve the maximum number of Units that may be designed and developed pursuant to the Specific Plan in each Phase of Development. II. PROJECT COMPONENTS A. Boutique Hotel The Boutique Hotel shall be a Four Star Quality or higher luxury hotel with expanded amenities, a high level of service and a unique architectural theme. The Boutique Hotel shall provide an exceptional and personalized level of accommodation, services, and facilities. Facilities shall be designed for short-term stay and shall include a management program to encourage rental of any Condominium Hotel Units when not in use by their owners. The Boutique Hotel shall contain not more than 225 Units. All Units in the Boutique Hotel may be sold as Condominium Hotel Units. All Units will have full access to resort amenities and services. A minimum of 35 of the Units shall have a Lock -Off Feature. The public spaces in the Boutique Hotel, including restrooms, restaurants and meeting spaces, shall be furnished with upgraded materials such as granite, marble, specialty lighting, and custom millwork. Distinctive and authentic architectural details such as clay tile, iron gates, fountains, and pavers shall be included throughout. Lobby areas shall feature elegant live plants and floral displays. Services offered shall include, but are not limited to, on -site sales efforts that solicit and/or serve group meetings, turndown service, room service, laundry service, personalized wake up calls, concierge and bell services, secure luggage storage facilities, and covered valet parking. 882/015610-0084 737414 08 a02/26/07 Amenities shall include at least one signature dining restaurant with minimum seating for 80 indoor and 40 outdoor, a well appointed lounge/bar with minimum seating for 40, guest registration lobby of at least 1,500 square feet, a first-class spa and fitness facility of at least 8,000 square feet (sf), at least one fully amenitized pool offering food service and cabanas, and at least 10,000 sf of interior meeting space. A highly upgraded Presidential Suite shall also be included of at least 2,500 sf. Landscaping shall include distinctive entry water features, use of fountains throughout, and substantial landscaping material. Hardscape materials shall include tumbled pavers and tile in courtyard areas. At least 50 percent of required parking shall be provided in covered or trellised parking areas. At least 150 parking spaces shall be included in a parking structure to be developed on -site. When not in use by the owners, all Units (except Fractional Units) in the Boutique Hotel shall be offered for rental as a part of the Boutique Hotel. Such rental may be offered by the owner of the Unit, a third party rental agent or an agent affiliated with the operator of the Boutique Hotel. All use of all of the Units in the Boutique Hotel, including by the owners thereof, shall be through the Boutique Hotel front desk check -in and check-out procedure, using electronic keys controlled by the operator of the Boutique Hotel. The operator shall have the ability to book all unbooked Units (except Fractional Units) as demand dictates within 2 weeks of the date being requested, and may charge a booking fee for such bookings. All Units in the Boutique Hotel shall be finished with upgraded materials such as stone, wood, and tile flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble baths, decorative wood beam ceilings where applicable, flat screen televisions, LodgeNet or equal services, 2 telephones, kitchenette with top -of -the -line or equal appliances, custom fireplaces in some units, luxurious bedding, and top-quality furnishings, uniformity of units/furnishings. B. Ranch Villas Development The Ranch Villas Development shall contain approximately fifty (50) Units, and all of such Units shall have a Lock -Off Feature. All Units in the Ranch Villas Development may be sold as Condominium Hotel Units. Resort pool area(s) shall be provided for the Units in the Ranch Villas Development. No pools shall be owned by an individual Unit. When not in use by the owners, all Units (except Fractional Units) in the Ranch Villas Development shall be offered for rental as a part of the Boutique Hotel. Such rental may be offered by the owner of the Unit, a third party rental agent or an agent affiliated with the operator of the Boutique Hotel. All use of all of the Units in the Ranch Villas Development, including by the owners thereof, shall be through the Boutique Hotel front desk check -in and check-out procedure, using electronic keys controlled by the operator of the Boutique Hotel. The operator shall have the ability to book all unbooked Units (except Fractional Units) as demand dictates within 2 weeks of the date being requested, and may charge a booking fee for such bookings. All Units in the Ranch Villas Development are to be finished with upgraded materials such as stone, wood, and tile flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble baths, decorative wood beam ceilings where applicable, flat screen televisions, 882/015610-0084 -2- 777414 08 a0226107 LodgeNet or equal services, 2 telephones, kitchenette with top -of -the -line appliances, custom fireplaces in some Units, luxurious bedding, and top quality furnishings. C. Resort Hotel/Golf Casitas Development/Lake Casitas Development 1. Resort Hotel The Resort Hotel shall be a Four -Star Quality or higher luxury hotel with expanded resort amenities, specifically designed to create a single source location for guests to enjoy their stay. The Resort Hotel shall contain at least ninety (90) Hotel Units that are owned and operated by Developer or an entity authorized or approved by the Agency pursuant to Section 703. The public spaces in the Resort Hotel, including restrooms, restaurants and meeting spaces shall be furnished with upgraded materials such as granite, marble, specialty lighting, and custom millwork. Distinctive and authentic architectural details consistent with the resort theme shall be included throughout. Lobby areas shall be expansive and shall feature elegant live plants, floral displays, and outstanding views. Services offered shall include, but are not limited to, on -site sales efforts that solicit and/or serve group meetings, turndown service, room service, laundry service, personalized wake up calls, pool services, activities center, kids clubs, excursions, concierge and bell services, secure luggage storage facilities, and covered valet parking. Amenities shall include at least one signature dining restaurant with minimum seating for 80 indoor and 30 outdoor, a well appointed lounge/bar with seating for a minimum of 40, a three -meal dining option seating at least 100 indoor and 60 outdoor, guest registration lobby of at least 3,500 sf, a first-class spa and fitness facility of at least 12,000 sf, a kids club and teen center of at least 2,500 sf, at least two fully amenitized resort pools offering food service, cabanas and swim areas for children, one adult pool, and at least 20,000 sf of interior meeting space. Landscaping shall include distinctive entry features, use of themed elements, and mature landscaping material. At least 30 percent of the required parking shall be provided in covered or trellised parking areas. At least 150 parking spaces shall be provided in a parking structure to be developed on -site. All Units are to be finished with upgraded materials such as stone, wood, and tile flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble baths, decorative wood beam ceilings where applicable, flat screen televisions, LodgeNet or equal services, 2 telephones, kitchenette with top -of -the -line appliances, custom fireplaces in some units, luxurious bedding, and top quality furnishings. 2. Lake Casitas Development and Golf Casitas Development The Lake Casitas Development shall contain approximately fifty (50) Units; the Golf Casitas Development shall contain approximately 72 Units; and all of such Units shall have a Lock -Off Feature. All Units in the Lake Casitas Development and in the Golf Casitas Development may be sold as Condominium Hotel Units. Resort pool area(s) shall be provided 882/015610-0084 -3- 737414 08 a02/26/07 for the Units in the Lake Casitas Development and for the Units in the Golf Casitas Development. No pools shall be owned by an individual Unit. When not in use by the owners, all Units (except Fractional Units) in the Lake Casitas Development and in the Golf Casitas Development shall be offered for rental as a part of the Resort Hotel. Such rental may be offered by the owner of the Unit, a third party rental agent or an agent affiliated with the operator of the Resort Hotel. All use of all of the Units in the Lake Casitas Development and in the Golf Casitas Development, including by the owners thereof, shall be through the Resort Hotel front desk check -in and check-out procedure, using electronic keys controlled by the operator of the Resort Hotel. The operator shall have the ability to book all unbooked Units (except Fractional Units) as demand dictates within 2 weeks of the date being requested, and may charge a booking fee for such bookings. All Units in the Lake Casitas Development and in the Golf Casitas Development are to be finished with upgraded materials such as stone, wood, and the flooring, upgraded carpet and pad, granite or tile counters, tile and/or marble baths, decorative wood beam ceilings where applicable, flat screen televisions, LodgeNet or equal services, 2 telephones, kitchenette with top -of -the -line appliances, custom fireplaces in some Units, luxurious bedding, and top quality furnishings. 3. Unit/Lock-Off Feature Requirements. The Resort Hotel, Golf Casitas Development, and Lake Casitas Development, collectively, shall contain not more than 405 Units, and at least 115 of such Units shall have a Lock -Off Feature. 4. Fractional Units. Up to 30% of all Units which are developed, other than those which must be retained as Hotel Units, may be sold as Fractional Units, of which no more than ten percent (10%) of the aggregate number of Fractional Units may be developed within the main building of the Resort Hotel. D. Resort Retail Village Development The Resort Retail Village Development shall consist of specialty retail development intended to provide a variety of additional retail, restaurant, and entertainment options to hotel guests and members of the local community. Subject to the approval of the City Council and any conditions imposed by the City Council, this mixed -use village may also include resort -oriented office, live -work loft units, and multi -family residential units. The design of the Resort Retail Village Development shall be complimentary to the Resort Hotel, the Golf Casitas Development and the Lake Casitas Development in terms of both quality and aesthetics. Pedestrian access shall be designed to encourage a seamless flow between resort accommodations and resort retail village. Tenants permitted in the Resort Retail Village Development shall include, but not be limited to, themed or signature national presence restaurants, local and national retailers, banks, 882/015610-0084 737414 08 .02/26/07 general store, brokerage, art galleries, gourmet market and resort -oriented offices. Other uses may be approved in writing by the Director of Community Development III. DEVELOPMENT CONCEPT The Property shall be improved by the Developer in accordance with the provisions of this Agreement, the Specific Plan, and all applicable codes, ordinances, and statutes including requirements and procedures set forth in the La Quinta Municipal Code, and the Redevelopment Plan regulations adopted in conjunction with or subsequent to execution of this Agreement. IV. ON -SITE DEVELOPMENT AND IMPROVEMENTS Developer shall prepare such plans, reports, and studies, and obtain such permits and approvals as required, including, but not limited to, grading plans for construction of the Project. Plans shall be prepared by a licensed civil engineer in good standing and subject to the approval of the Director of Public Works. Developer shall grant and permit all necessary and appropriate utility easements and rights for the development of the Project, including but not limited to sanitary sewers, storm drains, water, electrical power, telecommunications, natural gas, cable television, etc. V. LANDSCAPING Developer shall be responsible to fully landscape the Project in accordance with the Specific Plan and landscape plans approved by the City. VI. ON -SITE INFRASTRUCTURE IMPROVEMENTS Developer shall be responsible for the construction of (i) all on -site infrastructure improvements that may be identified per the Specific Plan, including, but not limited to, all required internal utilities, and any off -site infrastructure improvements that may be identified per the Specific Plan that are not constructed by the Agency; and (ii) all on -site and off -site improvements as required by any applicable site development permits or subdivision maps. All such construction shall be done to City standards. Additionally, Developer shall be responsible for obtaining and delivering to the City such bonds or other improvement security as City may require in accordance with applicable law, including but not limited to payment and performance bonds. VII. DEVELOPMENT STANDARDS All development on the Property shall conform to the development standards set forth in the Specific Plan, and other applicable City codes and development standards. 882/015610-0084 -5- 737414 08 302/26/07 ATTACHMENT NO.6 DEVELOPMENT AGREEMENT [See following Document # 750537] 882/015610-0094 737414 08 02/46/07 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 and 27383) DEVELOPMENT AGREEMENT by and between CITY OF LA QUINTA and LDD SILVERROCK, LLC 882/015610-0084 750537 12 a02/26/07 1.0 TABLE OF CONTENTS Page GENERAL...... ....................................................................................... 3 ........................... 1.1 Term ............................................ 1.2 Effective Date ............................. 1.3 Amendment or Cancellation....... 1.4 Termination ................................ 1.5 Definitions .................................. .......................................................................... 3 .......................................................................... 3 .......................................................................... 3 .......................................................................... 3 .......................................................................... 4 2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF THE PROJECT........................................................................... 7 2.1 Right to Develop7 2.2 Additional Applicable Codes and Regulations..................................................... 8 2.3 Permitted Density, Height and Use Limitations................................................... 9 2.4 Developer Impact Fees......................................................................................... 9 3.0 DEVELOPER'S OBLIGATIONS................................................................................... 9 3.1 Development and Operation of the Project.......................................................... 9 3.2 Conditions of Approval; Mitigation Monitoring Program ................................. 12 3.3 Declaration of Covenants, Conditions and Restrictions ..................................... 12 3.4 Sign Agreements................................................................................................. 13 13 3.5 Maintenance Agreements................................................................................... 3.6 Water Agreements.............................................................................................. 14 14 3.7 Other Fees and Charges; Assessment Appeals ................................................... 3.8 Dedications and Improvements.......................................................................... 14 3.9 Indemnification................................................................................................... 14 15 3.10 Insurance............................................................................................................. 17 3.11 Transient Occupancy Tax Obligations............................................................... 4.0 CITY'S OBLIGATIONS...............................................................................................17 4.1 Scope of Subsequent Review/Confirmation of Compliance Process ................. 17 4.2 Project Approvals Independent.......................................................................... 17 4.3 Review for Compliance...................................................................................... 17 5.0 DEFAULT; REMEDIES................................................................................................18 5.1 Notice of Default................................................................................................ 18 5.2 Cure of Default...................................................................................................18 5.3 City Remedies.................................................................................0................... 18 5.4 Developer's Exclusive Remedy... ................... 0 ................................ 0 .................. emedy.......................................................0.................. 19 6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE ::::............................. 19 6.1 Encumbrances on the Project Site ........................ 6.2 Mortgage Protection........................................................................................... 19 6.3 Mortgagee Not Obligated................................................................................... 19 6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ........................... 20 882/015610-0084 750537 12 a02/26/07 Page 7.0 TRANSFERS OF INTEREST IN SITE, AGREEMENT, OR MANAGEMENT........................................................................................................... 20 7.1 Transfers of Interest in Site, Agreement, or Management ................................. 20 7.2 Successors and Assigns...................................................................................... 22 7.3 Assignment by City 23 8.0 MISCELLANEOUS.......................................................................................................23 8.1 8.2 Notices................................................................................................................23 Enforced Delay; Extension of Times of Performance ........................................ 24 8.3 Binding Effect..................................................................................................... 24 8.4 Independent Entity24 24 8.5 Agreement Not to Benefit Third Parties............................................................. 8.6 Covenants...........................................................................................................25 25 8.7 Nonliability of City Officers and Employees..................................................... 8.8 Covenant Against Discrimination...................................................................... 25 8.9 Amendment of Agreement................................................................................. 25 8.10 No Waiver...........................................................................................................25 8.11 Severability.........................................................................................................26 26 8.12 Cooperation in Carrying Out Agreement........................................................... 8.13 Estoppel Certificate............................................................................................26 8.14 Construction........................................................................................................26 8.15 Recordation.........................................................................................................26 27 8.16 Captions and References.................................................................................... 8.17 8.18 Time....................................................................................................................27 Recitals & Exhibits Incorporated; Entire Agreement ......................................... 27 8.19 Exhibits...............................................................................................................27 27 8.20 Counterpart Signature Pages.............................................................................. 27 8.21 Authority to Execute; Representations and Warranties ...................................... 8,22 City Approvals and Actions............................................................................... 28 8.23 Governing Law; Litigation Matters.................................................................... 28 28 8.24 No Brokers.......................................................................................................... 882/015610-0084 -11- 750537 12 a02/26/07 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement") is entered into as of the 5`h day of December, 2006 ("Reference Date"), by and between the CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the Constitution of the State of the California (the "City"), and LDD SILVERROCK, LLC, a Delaware limited liability company (the "Developer"), with reference to the following: RECITALS: A. Government Code Sections 65864-65869.5 ("Development Agreement Act") authorize the City to enter into a binding development agreement for the development of real property within its jurisdiction with persons having legal or equitable interest in such real property. B. Pursuant to Section 65865 of the Government Code, the City has adopted its Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing procedures and requirements for such development agreements ("Development Agreement Ordinance"). C. Prior to or concurrently with the execution of this Agreement, Developer has entered into a Disposition and Development Agreement (the "DDA") with the La Quinta Redevelopment Agency ("Agency"), pursuant to which (1) the Agency, subject to the terms and conditions set forth in the DDA, has agreed to sell to the Developer, in multiple phases, certain real property located within the City at the southwest intersection of Jefferson Street and Avenue 52 which is legally described in Exhibit A-1 attached hereto and shown on the Site Map attached hereto as Exhibit A-2 (the "Site"), and (2) the Developer has agreed to construct on the Site the "Project," which will consist of a commercial development, and other permitted uses. The Project is more fully described in, and subject to (i) this Agreement, (ii) the SilverRock Resort Specific Plan, also known as Specific Plan 06-080, which was amended by Resolution No. 2006-083, which resolution was duly adopted by the City Council on July 18, 2006 (the "Specific Plan"); (iii) the DDA, (iv) the Mitigated Negative Declaration prepared for the Project, approved by the Agency on May 15, 2002, by Agency Resolution 2002-09, as updated by the Addendum to Mitigated Negative Declaration, approved by the City Council on July 18, 2006, by City Council Resolution No. 2006-082 (collectively, the "Updated Mitigated Negative Declaration"); (v) any future Site Development Permits issued for the Project, including all conditions of approval attached thereto (collectively, the "Project Site Development Permits"); (vi) Parcel Map No. 33367 and any further parcel or subdivision maps to be recorded on the Site and the conditions of approval thereon; and (vii) the conditions of approval associated with each and all of the foregoing approvals (collectively, the "Conditions of Approval"). The documents, permits, approvals, and conditions described in the foregoing clauses (i)-(vii) are collectively referred to herein as the "Development Plan," and are, or when approved or issued shall be, on file with the City Clerk. D. By virtue of the DDA, as of the execution of this Agreement, the Developer has an equitable interest in the Site. By its execution of the consent form attached to this Agreement, the Agency consents to recordation of this Agreement against the Site. 882/015610-0084 750537 12 a02/26/07 E. Consistent with Section 9.250.030 of the La Quinta Municipal Code, City and Developer desire to enter into a binding agreement for purposes of (i) obligating Developer to enter into and record, against each Parcel a City Declaration of CC&Rs that sets forth certain requirements of the owners of (a) the Condominium Hotel Units to make certain resort payments if their Unit fails to generate specified levels of Transient Occupancy Tax, and (b) all of the Fractional Units to make a resort payment; (ii) requiring the Developer to enter into maintenance agreements with the Agency or City obligating the Developer to maintain certain portions of the golf course lakes located or to be located adjacent to the Site and certain landscaped parkways, sidewalks, and trails, all as depicted on Exhibit "B" hereof, which is attached hereto and incorporated herein by this reference (collectively, the "Public Improvements"); (iii) requiring the Developer to enter into water agreements and signage agreements; and (iv) setting forth the manner in which Developer shall construct, develop, use and operate the Project, as to those Parcels within the Site that Developer purchases or leases pursuant to the DDA. 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 if it acquires the Site in accordance with the DDA, it 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 Planning Commission and the City Council have determined that the Project and this Agreement are consistent with the City's General Plan and the Specific Plan, including the goals and objectives thereof. H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality Act (Public Resources Code Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters. I. On December 5, 2006, the City Council adopted its Ordinance No. 433 approving this Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties do hereby agree as follows: 882/015610-0084 _'L_ 750537,12 0226M 1.0 GENERAL 1.1 Term. The term of this Agreement shall commence on the Effective Date hereof and shall continue for thirty (30) years thereafter, unless said term is otherwise terminated, modified, or extended as set forth in this Agreement or by mutual consent of the parties hereto, after the satisfaction of all applicable public hearing and related procedural requirements. 1.2 Effective Date. This Agreement shall be effective, and the obligations of the parties hereunder shall be effective, as of ("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. Notwithstanding the foregoing, in the event that one or more Parcels are under different ownership at some time during the Term hereof, the City and the then -owner of any Parcel may amend the terms of this Development Agreement and the Development Plan with respect to said Parcel, without obtaining the approval or consent of the owners of the other Parcels. 1.4 Termination. Unless terminated earlier, pursuant to the terms hereof, this Agreement shall automatically terminate and be of no further effect upon the expiration of the Term of this Agreement as set forth in Section L L 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, and shall have no effect on the obligations imposed under the City Declaration of CC&Rs. Notwithstanding anything herein to the contrary, in the event the "Initial Escrow" (as that term is defined in the DDA) fails to close within the time period set forth in the DDA, as such time may be extended pursuant to the terms of the DDA, this Agreement shall automatically terminate. Within 30 days after the opening of the Initial Escrow, Developer shall deliver to the Escrow Officer, in a form acceptable to the City Attorney and the "Title Company" (as that term is defined in the DDA), a quitclaim deed, releasing of all of Developer's interest in this Agreement in a form which may be recorded (the "Quitclaim") in the event that the Initial Escrow fails to close within the time set forth in the DDA, as such time may be extended pursuant to the terms of the DDA (the "Initial Escrow Closing Date"). In such event, within ten (10) days after the Initial Escrow Closing Date, Developer agrees to execute and submit to the Title Company or the City joint escrow instructions authorizing the Escrow Officer to record the Quitclaim. The Developer and City agree to execute and record such additional document(s) as the Title Company reasonably requires to remove this Agreement of record. If the Initial Escrow does close, but one or more of the subsequent escrows described in the DDA fail to close within the time period set forth in the DDA, as such time may be extended 882/015610-0034 _3- 750537 12 a02/26107 pursuant to the terms of the DDA, this Agreement shall automatically terminate with regard to the Parcels involved in the escrow or escrows which failed to close, and Developer and City agree to execute and record such document(s) as the Title Company reasonably requires to remove this Agreement of record with respect to such Parcels. 1.5 Definitions. 1.5.1 "Agency" shall have the meaning ascribed in Recital C hereof. 1.5.2 "Assignment and Assumption Agreement' shall have the meaning ascribed in Section 7.1.3 hereof. 1.5.3 "Authorized Manager" shall have the meaning ascribed in Section 3.1 hereof. L5.4 "Black Box Parcel' shall mean that certain real property designated as Lot 4 on the Parcel Map. The Black Box Parcel is comprised of approximately .78 acres. 1.5.5 "Boutique Hotel Parcel' shall mean that certain real property designated as Lot 19 on the Parcel Map. The Boutique Hotel Parcel is comprised of approximately 13.79 acres. The Boutique Hotel Parcel may be subdivided into two or more legal parcels after the Effective Date. In such event, when used herein, the terms "Boutique Hotel Parcel' shall refer to all such legal parcels. 1.5.6 "City" shall mean the City of La Quinta, a California municipal corporation and charter city organized and existing under the Constitution of the State of California. 1.5.7 "City Declaration of CC&Rs" shall have the meaning ascribed in Section 3.3.1 hereof. L5.8 "Conditions of Approval' shall have the meaning ascribed in Recital C hereof. 1.5.9 "Condominium Hotel Unit" or "CHU" means a Unit which is sold to a third party owner, but which, when not in use by such owner, is part of the inventory of rooms available for transient occupancy within the Project. 1.5.10 "CVWD" shall have the meaning ascribed in Section 3.6 hereof. 1.5.11 "DDA" shall have the meaning ascribed in Recital C hereof. 1.5.12 "Developer" shall mean LDD SilverRock, LLC, a Delaware limited liability company. 1.5.13 "Developer CC&Rs" shall have the meaning ascribed in Section 3.3.2 hereof. 882/015610-0084 _4_ 750537 12 a02/26/07 1.5.14 "Development Agreement Act" shall have the meaning ascribed in Recital A hereof. 1.5.15 "Development Agreement Ordinance" shall have the meaning ascribed in Recital B hereof. hereof. 1.5.16 "Development Plan" shall have the meaning ascribed in Recital C 1.5.17 "DHR" shall have the meaning ascribed in Section 3.1 hereof. 1.5.18 "Effective Date" shall have the meaning ascribed in Section 1.2 hereof. 1.5.19 "Existing Development Regulations" shall have the meaning ascribed in Section 2.1 hereof. 1.5.20 "Fee Transfer Release Date" shall have the meaning ascribed in Section 7.1.1 hereof. 1.5.21 "Four Star Quality" means that the applicable component of the Project offers and provides the services, facilities and amenities listed in Exhibit "C", which is attached hereto and incorporated herein by this reference. 1.5.22 "Fractional Unit" means a Unit that is either (a) a condominium, the ownership of which is divided into multiple fractional interests, including, without limitation, timeshare interests, each of which can be owned by separate owners or by the same owner, and each of which gives such owner the right to use such Unit for a different period of time; or (b) a Unit that is owned in fee by the Developer, Developer's successor in interest, DHR, or a successor in interest that is authorized or permitted pursuant to Section 7.1 hereof, and in which memberships are sold to third parties giving such parties the right to use and occupy the Unit for certain periods of time. 1.5.23 "Golf Casitas Parcel" shall mean that certain real property designated as Lot 11 on the Parcel Map. The Golf Casitas Parcel is comprised of approximately eight and sixty-three one hundredths (8.63) acres. 1.5.24 "Hotel Unit" means the Units in the Project that will be owned in fee by Developer or any successor authorized pursuant to Section 7.1.1 hereof and managed by DHR or any successor hotel management entity authorized or approved by the City pursuant to Section 7.1.2 hereof. None of the Hotel Units may be sold as Condominium Hotel Units or as Fractional Units. 1.5.25 "Initial Escrow Closing Date" shall have the meaning ascribed in Section 1.4 hereof. 1.5.26 "Lake Casitas Parcel" shall mean that certain real property designated as Lot 23 on the Parcel Map. The Lake Casitas Parcel is comprised of approximately 3.82 acres. '82/015610-0084 -5_ 750537 12 a02/26/07 1.5.27 "Lowe Enterprises" means Lowe Enterprises, Inc., a California corporation, which is an affiliate of Developer. 1.5.28 "Management Transfer" shall have the meaning ascribed in Section 7.1.2 hereof. 1.5.29 "Management Transfer Release Date" shall have the meaning ascribed in Section 7.1.2 hereof. 1.5.30 "New Laws" shall have the meaning ascribed in Section 2.1 hereof. 1.5.31 "Operating Covenant Release Date" shall have the meaning ascribed in Section 3.1.7 hereof. 1.5.32 "Parcel' shall mean any of the Boutique Hotel Parcel, Black Box Parcel, Ranch Villas Parcel, Resort Hotel Parcel, Resort Retail Village Parcel, Golf Casitas Parcel, or Lake Casitas Parcel. 1.5.33 "Parcel Map" means Parcel Map No. 33367, which has been prepared by the Agency for recordation in the Official Records of Riverside County, California, prior to or concurrently with the closing of the Initial Escrow. A copy of the Parcel Map is attached to the DDA as Attachment No. 11. 1.5.34 "Performance Audit' shall have the meaning ascribed in Section 3.1 hereof. 1.5.35 "Performance Consultant' shall have the meaning ascribed in Section 3.1 hereof. 1.5.36 "Performance Default Payment' shall have the meaning ascribed in Section 3.1 hereof. 1.5.37 "Phase of Development' shall mean the component of the Project to be constructed on a particular Parcel, as further described in the DDA. 1.5.38 "Phase of Development Owner" shall have the meaning ascribed in Section 3.1 hereof. 1.5.39 "Project' shall have the meaning ascribed in Recital C hereof. 1.5.40 "Project Site Development Permits" shall have the meaning ascribed in Recital C hereof. 1.5.41 "Quitclaim" shall have the meaning ascribed in Section 1.4 hereof. 1.5.42 "Ranch Villas Parcel' means that certain real property designated as Lot 22 on the Parcel Map. The Ranch Villas Parcel is comprised of approximately 2.43 acres. 882/015610-0084 _6_ 750537 12 a02/26/07 1.5.43 "Reference Date" shall have the meaning ascribed in the preamble hereof. 1.5.44 "Resort Hotel Parcel" means that certain real property designated as Lot 3 on the Parcel Map. The Resort Hotel Parcel is comprised of approximately 19.65 acres. 1.5.45 "Resort Retail Village Parcel" means that certain real property designated as Lot 5 on the Parcel Map. The Resort Retail Village Parcel is comprised of approximately 11.88 acres. 1.5.46 "SilverRock Resort Area" means the real property included in and covered by the Specific Plan. 1.5.47 "Site" shall have the meaning ascribed in Recital C hereof. 1.5.48 "Specific Plan" shall have the meaning ascribed in Recital C hereof. 1.5.49 "Term" shall have the meaning ascribed in Section 1.1 hereof. 1.5.50 "Transfer" shall have the meaning ascribed in Section 7.1.1 hereof. L5.51 "Transient Occupancy Tax" shall have the meaning ascribed in Chapter 3.24 of the La Quinta Municipal Code. 1.5.52 "Unit" shall mean one of the approximately six hundred eighty (680) units designed for overnight occupancy comprising the Project. All Units shall be developed as Condominium Hotel Units, Fractional Units, and/or Hotel Units, and all such development shall be in accordance with the requirements of the Specific Plan. 1.5.53 "Updated Mitigated Negative Declaration" shall have the meaning ascribed in Recital C hereof. 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) shall be deemed vested upon approval of all of the components that comprise the Development Plan, which vesting shall expire upon the earlier of the following occurrences: (a) termination of this Agreement; (b) termination of the DDA; (c) an uncured material default by Developer of this Agreement or of the DDA; or (d) as to a particular Phase of Development, or a particular Parcel, the earlier of the final approved City inspection of the completed development of such Phase of Development or Parcel, or the issuance by City of a final certificate of occupancy for such Phase of Development or Parcel. 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; provided, however, that in the event that vesting terminates as a result of the termination of the DDA 882/015610-0084 _7_ 750537 12 a02/26/07 (clause (b) above), then the obligations of Developer under this Agreement after such termination shall be limited to those which are applicable to the portions of the Project and/or the Parcels acquired by Developer pursuant to the DDA prior to such termination. Notwithstanding anything in this Agreement to the contrary, any recorded City Declaration of CC&Rs shall survive the termination of this Agreement or of the DDA. Notwithstanding anything in this Agreement to the contrary, the Site and the Project shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees existing on the Effective Date of this Agreement, including, without limitation, Section 9.140.080 of the La Quinta Municipal Code (collectively, the "Existing Development Regulations"); (ii) all amendments or modifications to Existing Development Regulations after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan, and as to such New Laws that would prevent or materially impair Developer's ability to develop the Project, they will not apply to the Project 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 and are necessary to protect the public's health and safety and do not result in a moratorium on development of the Site, (B) required by a non -City entity to be adopted by or applied by the City (or if optional the failure to adopt or apply such non -City law or regulation would cause City to sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws the City expressly reserves the right to apply under this Agreement, including but not limited to those in Sections 2.2 and 3.7; (iii) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to Site Development Permits and building permits, (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable, and (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid. 2.2 Additional Applicable Codes and Regulations Notwithstanding any other provision of this Agreement, City also reserves the right to apply the following to the Site and to the development of the Project: "2/015610-0084 -8- 750537 12 a02/26/07 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, so long as they are applied to the Project in a nondiscriminatory manner. 2.2.2 In the event of fire or other casualty requiring reconstruction 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, Fire, and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely to the extent applicable to all development projects in the City. 2.2.3 This Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, including existing development impact fees, including but not limited to the resort fees described in and required pursuant to the City Declaration of CC&Rs, and to apply such new or increased fees to the Project or applicable portion thereof where such new or increased fees may be charged, so long as such fees are applicable City-wide. 2.3 Permitted Density Heilzht and Use Limitations. The permitted uses, density and intensity of use, location of uses, maximum height and size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall be those set forth in the Development Plan. 2.4 Developer Impact Fees. For purposes of calculating required Developer Impact Fees, all Units in the Project shall be deemed to be, and shall pay fees as, a hotel project, and shall not be treated as, nor charged Developer Impact Fees as, residential units. 3.0 DEVELOPER'S OBLIGATIONS 3.1 Development and Operation of the PEPiect. Developer shall construct the Project on the Site in accordance with the Development Plan, including, without limitation, all of the timeframes set forth in the DDA. Developer shall enter into the necessary agreements to ensure that Destination Hotels & Resorts, Inc., a California corporation ("DHR"), shall initially manage and operate the Phases of Development developed on the Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the Golf Casitas Parcel, and the Ranch Villas Parcel, all in accordance with the requirements of this Section 3.1. Notwithstanding anything herein to the contrary and with the one limited exception outlined in this paragraph, until the Management Transfer Release Date for each Phase of Development that includes Units, DHR or a successor entity authorized pursuant to Section 7.1.2 (DHR or such permitted successor entity, an "Authorized Manager") shall retain full management and operational control over all components of such Phase of Development. The 882/0)5610-0084 _9- 750537 12 a02/26/07 Authorized Manager of the hotel and Units to be developed on the Resort Hotel Parcel shall also be the Authorized Manager for the Units to be developed on the Golf Casitas Parcel and the Lake Casitas Parcel. The Authorized Manager of the hotel and Units to be developed on the Ranch Villas Parcel shall also be the Authorized Manager for the Units to be developed on the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subsequently subdivided into two or more Parcels. In the event that, consistent with the terms of this Agreement and the DDA, some or all of the Fractional Units are developed as a residence club, in which memberships are sold to third parties giving such parties the right to use and occupy the Fractional Unit for certain periods of time, or as a timeshare program, Developer anticipates the residence club and timeshare program will be operated and managed by DHR. Developer shall obtain City's prior written approval, which approval shall not be unreasonably conditioned, withheld, or delayed, of any operator other than DHR that Developer proposes to operate and manage said residence club and/or timeshare program, and in no event shall more than one operator operate and manage said residence club and/or timeshare program, regardless of whether the Fractional Units in the residence club and/or timeshare program are located on more than one Parcel. Further, in no event will there be more than three operators operating and managing all of the Units in the Project. In connection with Developer's request for City's approval, Developer shall submit a proposed management plan that describes the residence club and/or timeshare program, including the operational and managerial obligations of the proposed operator, and that details how such operation and management will be effected in order to maintain the Fractional Units at a Four Star Quality and to ensure such Fractional Units remain and appear to remain affiliated with the other hotel portions of the Project. Developer, on behalf of itself and any Authorized Manager, covenants and agrees that each of the Phases of Development that include Units shall, upon its completion, be operated in a Four Star Quality condition until the twentieth (201h) anniversary of the date the Agency issues a Release of Construction Covenants for such Phase of Development (the "Operating Covenant Release Date"). No more than once per year after completion of any of the Phases of Development that include Units, the City may select an independent consultant (the "Performance Consultant") to perform a quality audit of such Phase(s) of Development for purposes of determining that the applicable Phase of Development is operating at a Four Star Quality (the "Performance Audit"). The then -owner of the applicable Phase of Development (the "Phase of Development Owner") shall reimburse the City for the reasonable costs of the Performance Audit. City shall promptly provide the Phase of Development Owner with a copy of the Performance Audit. In the event that the Performance Audit concludes that the Phase of Development is not operating at a Four Star Quality, the Phase of Development Owner shall have a period of sixty (60) days from the date the City provides the Phase of Development Owner with the Performance Audit to correct a sufficient number of the deficiencies noted therein so that the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. If, at the expiration of said sixty (60) day period, a sufficient number of the deficiencies have not been corrected so that the Phase of Development still does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, the Phase of Development Owner shall pay to the City liquidated damages for each day after said sixtieth (601h) day that passes until sufficient items noted in the Performance Audit have been corrected, as determined by the Performance Consultant, in the following amounts: (i) if the Phase of Development is operating such that eighty percent (80%) or more but less than ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the City 882/015610-0084 -10- 750537 12 a02/26/07 the sum of Five Hundred Dollars ($500) per day (the "Less Than 95% Performance Default Amount") until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics; or (ii) if the Phase of Development is operating such that less than eighty percent (80%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the City the sum of One Thousand Dollars ($1,000) per day (the "Less Than 80% Performance Default Amount") until the day as of which the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics; provided, however, that if on the day the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics the Phase of Development does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, then the Phase of Development Owner shall be required to pay the City the Less Than 95% Performance Default Amount, pursuant to clause (i) above, for each day until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. All of the costs and fees charged by the Performance Consultant for any follow-up inspections shall be paid by Developer. LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT A PHASE OF DEVELOPMENT IS NOT OPERATING AT A FOUR STAR QUALITY, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CITY AND DEVELOPER AGREE THAT CITY WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND DEVELOPER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT CITY'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, HAVE AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO CITY THAT REASONABLY COULD BE ANTICIPATED, INCLUDING WITHOUT LIMITATION THE POTENTIAL LOSS OF TAX REVENUE TO THE CITY, AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT, THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF CITY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, THE PHASE OF DEVELOPMENT OWNER SHALL BE REQUIRED TO PAY TO CITY THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% DEFAULT AMOUNT (AS APPLICABLE) AS LIQUIDATED DAMAGES AND AS CITY'S SOLE DAMAGE REMEDY AGAINST DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST FOR A DEFAULT UNDER THIS SECTION 3.1; PROVIDED, HOWEVER, THAT CITY RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER EQUITABLE REMEDY AVAILABLE TO CITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING AN 882/015610-0084 -11- 750537 12 a0226/07 ACTION FOR SPECIFIC PERFORMANCE (BUT NOT THE RIGHT TO SEEK ANY DAMAGES). CITY AND DEVELOPER SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW: CITY DEVELOPER City and Developer acknowledge and agree that the liquidated damages provision in this Section 3.1, in Section 1.2 of the applicable City Declaration of CC&Rs, and in Section 500 of the DDA, are designed to be a single obligation of the Phase of Development Owner pursuant to this Section 3.1, Section 1.2 of the applicable City Declaration of CC&Rs, and Section 500 of the DDA, and that either payment to City, under this Section 3.1 or under Section 1.2 of the applicable City Declaration of CC&Rs, or payment to the Agency, under Section 500 of the DDA, shall satisfy the obligation of payment of the liquidated damages under this Section 3.1, under Section 1.2 of the applicable City Declaration of CC&Rs, and under Section 500 of the DDA. 3.2 Conditions of Approval; Mitigation Monitoring Program. Developer shall comply with all Conditions of Approval. The Developer shall also comply with the mitigation monitoring program set forth in Exhibit "D" attached hereto, which includes and incorporates the mitigation measures of the Updated Mitigated Negative Declaration to ensure that significant environmental effects will be mitigated or avoided (the "Mitigation Monitoring Program"). 3.3 Declaration of Covenants Conditions and Restrictions. 3.3.1 Recordation of City Declaration of CC&Rs. As one of the Agency's conditions to closing under the DDA for any Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer shall have entered into with the City and shall, at said closing, record against the underlying Parcel a Declaration of Covenants, Conditions and Restrictions in the form attached hereto and incorporated herein as Exhibit "E" (a "City Declaration of CC&Rs"), the covenants of which shall bind all of the Parcels on which Units will be developed and each and every Condominium Hotel Unit, Fractional Unit, and Hotel Unit developed thereon in perpetuity and shall survive the termination of this Agreement. As set forth more fully in the City Declaration of CC&Rs, Developer acknowledges and agrees that there will be subsequent adjustments to the payment amounts set forth in: (i) Section 1.5 of the City Declaration of CC&Rs for the "Excess Use Payments," (ii) Section 2.1 of the City Declaration of CC&Rs for the "CHU Annual Resort Payment," and (iii) Section 2.2 of the City Declaration of CC&Rs for the "Fractional Unit Annual Resort Payments" The parties agree that for the sake of simplicity, they desire to have the amounts of each of the foregoing payments to be uniform as to all Parcels on which Units will be developed. Therefore, as set forth in more detail in the City Declaration of CC&Rs, (a) the date of the first sale of a Condominium Hotel Unit will establish a benchmark for the timing of all subsequent adjustments to the amount of the Excess Use Payments and to the amount of the CHU Annual Resort Payments; and (b) the date of the first sale of a Fractional Unit will establish a benchmark for the timing of all subsequent adjustments to the amount of the Fractional Unit Annual Resort Payments. The result of the foregoing is that the payment amounts for the entirety of the Project are uniform for the same type of Unit, and 882/015610-0084 -12- 750537 12 .0226/07 that each specific type of payment (i.e., Excess Use Payments, CHU Annual Resort Payments, and Fractional Unit Annual Resort Payments) is subject to adjustment at the same time regardless of when such Condominium Hotel Units or Fractional Units are developed or sold. Accordingly, the form of each City Declaration of CC&Rs that is recorded subsequent to the City Declaration of CC&Rs that is recorded against the first Parcel on which a Condominium Hotel Unit or Fractional Unit has been sold shall be revised to reflect the amounts then -charged or chargeable, pursuant to the terms of said City Declaration of CC&Rs, to (1) Condominium Hotel Units as Excess Use Payments and as CHU Annual Resort Payments; and (2) Fractional Units as Fractional Unit Annual Resort Payments. 3.3.2 Recordation of Developer CC&Rs. Prior to and as a condition to the City's issuance of a temporary or final certificate of occupancy for any Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer shall have submitted to City, obtained City's approval of, and recorded against the underlying Parcel, a declaration of covenants, conditions, and restrictions that (i) establishes a homeowners' association, (ii) is necessary to create a condominium regime for the condominiums described on the Condominium Plan to be recorded in accordance with all applicable laws; (iii) clearly sets forth the maintenance obligations of the owners of the Condominium Hotel Units and Fractional Units; (iv) sets forth the obligations of the owners of the Condominium Hotel Units and Fractional Units to make certain resort payments, as further set forth in the City Declaration of CC&Rs, and requires all such resort payments to be paid and brought current prior to any sale by the owner thereof-, and (v) includes a disclosure regarding the public ownership and control of the existing golf course and any future golf course that may be developed in the SilverRock Resort Area and a statement that Developer does not and cannot guarantee that the City will not make changes to such golf course(s) or change the use of the underlying real property (the "Developer CC&Rs"). The Developer CC&Rs shall provide that the City is a third party beneficiary thereof with the right, but not the obligation, to enforce the terms thereof which are required hereby, and shall require the written approval of the City prior to any amendments thereto to any of the provisions which are required hereby. 3.4 Sign Agreements. As one of Agency's conditions to closing under the DDA for the Boutique Hotel Parcel, Resort Hotel Parcel, and Resort Retail Village Parcel, Developer shall enter into with the City or the Agency (as applicable) a signage agreement for such Parcel. Notwithstanding other signage locations to be determined during the site development permit process, the signage agreement for the Boutique Hotel Parcel shall provide for signage along Avenue 52, at the entry point to the development; the signage agreement for the Resort Hotel Parcel shall provide for signage on Jefferson Street, at the Resort Hotel entry point; the signage agreement for the Resort Retail Village Parcel shall provide for signage at the corner of Avenue 52 and Jefferson Street, Avenue 54 and Jefferson Street, and on Avenue 54, at the entry into the SilverRock Resort Area. 3.5 Maintenance Agreements. As one of Agency's conditions to closing for each Parcel under the DDA, Developer shall enter into with the City or the Agency (as applicable) a maintenance agreement requiring the Developer to maintain the Public Improvements located adjacent to such Parcel. 882/015610-0084 -13- 750537 12 a02/26/07 3.6 Water Agreements. City has entered into with the Coachella Valley Water District ("CVWD") that certain Domestic Water and Sanitation Systems Installation and Irrigation Service Agreement dated on or about June 11, 2005, and recorded in the Official Records of the County of Riverside, as Instrument No. 2005-0852063, on June 14, 2005 (the "CVWD Agreement"). Pursuant to the CVWD Agreement, the owner/developer of each Parcel is required to execute and record a Domestic Water and/or Sanitation Systems Installation Agreement, substantially in the form attached to the CVWD Agreement as Exhibit (a "Water Agreement"), prior to obtaining domestic water service for each said Parcel. As one of Agency's conditions to closing for each Parcel under the DDA, Developer shall execute and record against such Parcel at the Closing therefor a Water Agreement. 3.7 Other Fees and Charges• Assessment Anneals. Nothing set forth in this Agreement is intended to or shall be construed to limit or restrict the City's authority to impose its existing, or any new or increased, fees, charges, levies, or assessments for the development of the Site, or to impose or increase, subject to the required procedure, any taxes applicable to the Site including but not limited to transient occupancy taxes, provided nothing set forth herein, subject to the following two sentences, is intended or shall be construed to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge, levy, assessment, or tax imposed. Developer agrees on behalf of itself and on behalf of all persons or entities that may own an interest in the Site or the Units in the future that no action shall be taken, including any assessment appeal, to decrease the assessed value of any of the Site or any portion thereof below the final assessed value at the time the development of the Site or separate Parcel thereof is completed. Developer agrees on behalf of itself, and on behalf of all persons or entities that may own an interest in the Site or the Units in the future that during the term hereof no action shall be taken to challenge, cancel, reduce, or otherwise negate the payments required to be made to the City pursuant to the City Declaration of CC&Rs. Developer shall timely pay all applicable fees, charges, levies, assessments, and special and general taxes validly imposed in accordance with the Constitution and laws of the State of California, including without limitation school impact fees in accordance with Government Code §§ 65995, et seq. 3.8 Dedications and Improvements. Developer shall offer dedications to the City or other applicable public agency, or complete those public improvements in connection with the Project, as specified in the Conditions of Approval. 3.9 Indemnification. a. The Developer agrees to and shall indemnify, hold harmless, and defend, the City and the Agency and their respective officers, officials, members, agents, employees, and representatives, from liability or claims for death or personal injury and liability and claims for property damage which may arise from the negligent or grossly negligent acts, errors, and/or omissions of the Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to the Project and/or this Agreement. The foregoing indemnity 882/015610-0084 -14- 750537 12 .02/26/07 applies to all deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of the negligent or grossly negligent acts, errors, and/or omissions referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both, and regardless of whether or not the insurance policies referred to in this Agreement are applicable. In the event of litigation, the City agrees, at no cost to the City, to cooperate with the Developer. The Developer shall have the obligation to provide the defense of the City and/or Agency in the litigation, either by providing for legal counsel or, at the City's or Agency's option, timely paying the legal costs incurred by the City and or the Agency in the defense of litigation, even though negligence or gross negligence of the Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf has not been established at the time that the defense is provided. b. In the event of any court action or proceeding challenging the validity of this Agreement or the Development Plan, the Developer shall indemnify, hold harmless, pay all costs and provide defense for the City in said action or proceeding with counsel chosen by Developer and reasonably approved by the City. The City shall, at no cost to the City, cooperate with the Developer in any such defense as Developer may reasonably request. In the event the Developer fails or refuses to provide such defense of any challenge to this Agreement or the Development Plan, or any component thereof, City shall have the right not to defend such challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including terminating this Agreement. In the event of such termination, Developer, upon written request of City, shall immediately execute a termination document or other document reasonably required by a reputable title company to remove this Agreement as a cloud on title. 3.10 Insurance. Before beginning construction on the Site, the Developer shall cause the insurance required under this paragraph to be issued and thereafter to be maintained until one (1) year following the later of (i) the date City issues the last certificate of occupancy needed for the initial occupancy of the last portion of the Project, or (ii) the date the City signs off on the last final inspection of the last of the Project improvements. Developer shall procure and maintain: A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate. A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by Developer in the course of carrying out the work or services contemplated in this Agreement. A policy of commercial automobile liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00). Said policy shall include coverage for owned, non -owned, leased, and hired cars. The following additional requirements shall apply to all of the above policies of insurance: 982/015610.0084 -15- 750537 12 a0226/07 All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, Agency, and their respective officers, officials, members, employees, agents, and representatives as additional insureds, using a pre- 2004 additional insured endorsement (or equivalent). The insurer shall waive all rights of subrogation and contribution it may have against City, Agency, and their officers, officials, members, employees, agents, and representatives, and their respective insurers. All of said policies of insurance shall provide that said insurance may not be materially amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. Not later than the Effective Date, Developer shall provide the City Manager with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the City Manager. Upon the request of the City Manager, Developer shall provide City with complete copies of each policy of insurance required by this Agreement. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies (i) licensed and admitted to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, or (ii) authorized to do business in California, rated "A+" or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Registry and only if they are of a financial category Class XV. Notwithstanding the foregoing, in the event that the policies required hereunder are not available from such insurers at commercially reasonable rates, the City Manager shall have the authority, in his or her sole and absolute discretion, to waive one or more of such requirements provided the proposed policies will adequately protect the City's interests hereunder. City may reasonably require coverage increases, provided that the percentage increase in coverage shall not be required to exceed the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County Average, All Items (1984 = 100) (the "Index"), from and after the date of this Agreement, or, if said Index is discontinued, such official index as may then be in existence and which is most nearly equivalent to said Index (the "CPI Adjustment"). Unless otherwise approved in advance by the City Manager, the insurance to be provided by Developer may provide for a deductible or self -insured retention of not more than Fifty Thousand Dollars ($50,000), with such maximum amount to increase at the same rate as the periodic increases in the minimum amount of total insurance coverage set forth above. Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 3.9 or the extent to which Developer may be held responsible for the payment of damages to any persons or property 882/015610-0084 -16- 750537 12 a02/26/07 resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 3.11 Transient Occupancy Tax Obligations. Developer acknowledges and agrees that all of the Units in the Project are Units in a "Group Hotel," as that term is defined in Section 3.24.020 of the La Quinta Municipal Code, for purposes of collecting and remitting to the City Transient Occupancy Tax. 4.0 CITY'S OBLIGATIONS 4.1 Scope of Subsequent Review/Confirmation of Compliance Process. Nothing set forth herein shall impair or interfere with the right of the City to require the processing of building permits as required by law pursuant to the applicable provisions of the La Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes. Prior to each request for a building permit, Developer shall provide City with a Compliance Certificate ("Certificate") in a form created by Developer and approved by the City, which shall describe how all applicable Conditions of Approval have been fully complied with. The Certificate shall be distributed to relevant City departments for checking the representations made by Developer on the Certificate. 4.2 Project Approvals Independent. All approvals required for the Project which may be or have been granted, and all land use entitlements or approvals generally which have been issued or will be issued by the City with respect to the Project, constitute independent actions and approvals by the City. If any provision of this Agreement or the application of any provision of this Agreement to a particular situation is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement terminates for any reason, then such invalidity, unenforceability or termination of this Agreement or any part hereof shall not affect the validity or effectiveness of any such Project approvals or other land use approvals and entitlements. In such cases, such approvals and entitlements will remain in effect pursuant to their own terms, provisions, and the Conditions of Approval. It is understood by the parties to this Agreement that pursuant to existing law, if this Agreement terminates or is held invalid or unenforceable as described above, such approvals and entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the term of such approvals and entitlements. 4.3 Review for Compliance. The City shall review this Agreement at least once during every twelve (12) month period following the Effective Date of this Agreement, in accordance with the City's procedures and standards for such review set forth in the City's Development Agreement Ordinance. During such periodic review by the City, the Developer, upon written request from City, shall be required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with the terms hereof. The failure of the City to conduct or complete the annual review as provided herein or in accordance with the Development Agreement Act shall not impact the validity of this Agreement. If, at the conclusion of the annual review provided for herein, Developer shall 882/015610-0084 _ 17_ 750537 12 a02/26/07 have been found in compliance with this Agreement, City, through the City's Community Development Director, shall, at Developer's written request, issue a Certificate of Compliance to Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in compliance with this Agreement. The Certificate of Compliance shall be in recordable form, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer, at its option and sole cost, may record the Certificate of Compliance. 5.0 DEFAULT; REMEDIES. 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. A default of Developer under the DDA shall be deemed to be a default hereunder and shall give rise to all of City's remedies for a default hereunder. 5.2 Cure of Default. Upon the receipt of the notice of default, the alleged defaulting party shall promptly commence to cure, correct, or remedy the identified default at the earliest reasonable time after receipt of the notice of default and shall complete the cure, correction or remedy of such default not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied within five (5) days [or thirty (30) days for non -monetary defaults], such party shall commence to cure, correct, or remedy such default within such five (5) day period [or thirty (30) day period for non -monetary defaults], and shall continuously and diligently prosecute such cure, correction or remedy to completion. 5.3 City Remedies. In the event of a default by Developer or its successors in interest of the terms of this Agreement that has not been cured within the timeframe set forth in Section 5.2 above, or of the terms of the DDA that has not been cured within the timeframe set forth therein for curing defaults, the City, at its option, may institute legal action in law or in equity to cure, correct, or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement; provided, however, that in no event shall City be entitled to consequential damages for any Developer default. For purposes of this Agreement the term "consequential damages" shall include, but not be limited to, potential loss of anticipated tax revenues from the Project or any portion thereof. Furthermore, the City, in addition to or as an alternative to exercising the remedies set forth in this Section 5.3, in the event of a material default by Developer, may give notice of its intent to terminate, cancel, 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. 882/015610-0084 -18- 750537 12 a02/26/07 5A Developer's Exclusive Remedy. The parties acknowledge that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or any of the matters referred to herein including but not limited to the Development Plan, Conditions of Approvals, the Existing Development Regulations or any future amendments or enactments thereto, or the Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself and its successors and assigns, including the owners of the Units, not to sue the City for damages or monetary relief for any breach of this Agreement by City or arising out of or connected with any dispute, controversy, or issue between Developer and City regarding this Agreement or any of the matters referred to herein including but not limited to the application, interpretation, or effect of this Agreement, the Development Plan, the Conditions of Approval, the Existing Development Regulations or any future amendment or enactments thereto, or any land use permit or approval sought in connection with the development of the Project or any component thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive judicial remedies. 6.0 MORTGAGEE PROTECTION• CERTAIN RIGHTS OF CURE 6.1 Encumbrances on the Project Site. This Agreement shall not prevent or limit the Developer from encumbering the Site or any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof or interest therein, is pledged as security, and contracted for in good faith and fair value (a "Mortgage") securing financing with respect to the construction, development, use or operation of the Project. 6.2 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, and any acquisition or acceptance of title or any right or interest in or with respect to the Site or any portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and conditions of this Agreement. 6.3 Mortgagee Not Obligated. No Mortgagee will have any obligation or duty under this Agreement to perform the obligations of the Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to develop or operate the Site, and (ii) to the extent that any covenant to be performed by the Developer is a condition to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. 982/015610-0084 _ 19_ 750537 12 a02/26/07 6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure. City shall, upon written request therefor 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 for thirty (30) days for non -monetary defaults] after the receipt of such notice from City, to cure, correct, or remedy the default, or, for such defaults that cannot reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non - monetary defaults], to commence to cure, correct, or remedy the default within such five (5) day period [or thirty (30) day period for non -monetary defaults], and to continuously and diligently prosecute such cure to completion. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Site, such Mortgagee shall have the right to seek to obtain possession with diligence and continuity through foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is reasonably necessary to cure or remedy said default but in no event more than thirty (30) days after obtaining possession. If any such default cannot, with diligence, be remedied or cured within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to effect a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty (30) day period, and thereafter diligently pursues and completes such cure. 7.0 TRANSFERS OF INTEREST IN SITE AGREEMENT OR MANAGEMENT 7.1 Transfers of Interest in Site Agreement or Management. The qualifications and identity of the Developer as the developer and DHR as the operator of high quality commercial resort developments are of particular concern to the City. Furthermore, the parties acknowledge that the City has negotiated the terms of this Agreement in contemplation of the development and operation of the Project on the Site and the property tax increment and Transient Occupancy Tax revenues to be generated by the operation of the Project on the Site. 7.1.1 Transfers of Interest in Site or Agreement Prior to Agency's Issuance of a Release of Construction Covenants. Except as provided in this Section 7.1, until the date the Agency issues a "Release of Construction Covenants" (as that term is defined in the DDA) for a particular Phase of Development (the "Fee Transfer Release Date"), (1) no voluntary successor in interest of the Developer shall acquire any rights or powers under this Agreement with respect to said Phase of Development; (2) the Developer shall not make any total or partial sale, transfer, conveyance, assignment, or lease of the whole or any part of the applicable Parcel or the Phase of Development thereon; and (3) no changes shall occur with respect to the ownership and/or control of Developer or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (any of the above, a "Transfer"). Prior to the Fee Transfer Release Date for a particular Phase of Development, the City may approve or disapprove a proposed Transfer in its sole and absolute discretion. Notwithstanding the foregoing, City approval of a Transfer prior to the Fee Transfer Release Date for a particular Phase of Development shall not be required in connection with any of the following: 882/015610-0084 _20- 750537 U AM6r07 a. The conveyance or dedication of any portion of the Site to an appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project. b. Any assignment for financing purposes (subject to such financing being permitted pursuant to Section 311 of the DDA), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project or of a Phase of Development. C. The Transfer by Developer to an entity (i) whose managing member, manager, or managing general partner is (A) Developer or (B) an entity which is at least twenty percent (20%) capitalized by Lowe Enterprises or the senior management of Lowe Enterprises; and (ii) which engages as the project/development manager for the Phase of Development an entity which is at least fifty-one percent (51%) owned and controlled by Lowe Enterprises. d. The sale by Developer of Condominium Hotel Units to third party buyers. e. The sale, transfer or issuance of stock or membership interests of Lowe Enterprises so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, membership and/or ownership interests of Lowe Enterprises, and control of Lowe Enterprises, is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. 7.1.2 Transfers of Operational Obligations. Notwithstanding anything in Section 7.1.1 to the contrary, commencing on the date the Agency issues a Release of Construction Covenants for each Phase of Development and continuing until the tenth (10`") anniversary thereof (the "Management Transfer Release Date"), (i) subject to the provisions of Section 3.1 hereof concerning the potential for separate management of Fractional Units in a residence club and/or timeshare program, neither Developer nor DHR (or any permitted successor in interest) shall make any Transfer of the operational and/or managerial control, including, but not limited to, financial and managerial decisionmaking, of such Phase of Development; and (ii) no changes shall occur with respect to the ownership and/or control of DHR, or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (either of the above, a "Management Transfer") without the prior written approval of the City; provided, however, that transfers of the stock, ownership and/or membership interests of DHR or of Lowe Enterprises may be made so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, ownership, and/or membership interests of DHR and of Lowe Enterprises is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. Notwithstanding the foregoing, City approval shall not be required for a Management Transfer to any of the entities listed on Exhibit "F," which is attached hereto and incorporated herein by this reference; provided, however, that if any of the entities on Exhibit "F" operate under a "flag" name, the flag shall be a flag that operates at a Four Star Quality. To the extent that the operating character or quality of any of the entities listed on Exhibit "F" substantially changes between the Effective Date and the date of the proposed Management Transfer, Developer or Developer's successor 9821015610-0084 -21- 750537 12 a02/26/07 in interest shall demonstrate that the listed entity satisfies the requirements for transferee entities not listed on Exhibit "F", as outlined below in this Section 7.1.2. No Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating and managing the hotels and Units on the Resort Hotel Parcel, the Lakes Casitas Parcel, and the Golf Casitas Parcel, and no Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating and managing the hotels and Units on the Ranch Villas Parcel and the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subdivided into two or more legal parcels. City shall not unreasonably withhold, delay, or condition approval of a proposed Management Transfer to an entity that is not listed on Exhibit "F", provided that Developer or Developer's successor in interest demonstrates that the proposed operator has experience and reputation for operating luxury hotels at a Four Star Quality equivalent to the experience and reputation of DHR, Rosewood Hotels and Resorts, Vail Resorts, Inc., Loews Corporation, and Kimpton Hotel and Restaurant Group, LLC. Developer or Developer's successor in interest shall provide such information as may reasonably requested by the City to enable the City to review and approve (or disapprove) any proposed operator, and shall reimburse the City for the City's costs incurred in considering any such request. 7.1.3 Assignment and Assumption of Obligations. Except for the sale of individual Condominium Hotel Units or Fractional Units, any Transfer (including Transfers not requiring prior City approval) by Developer of any interest in the Site or of any interest in this Agreement and all Management Transfers shall require the execution of an assignment and assumption of obligations substantially in the form attached hereto and incorporated herein as Exhibit "G" (an "Assignment and Assumption Agreement"). Transfers of Developer's rights and/or obligations under this Agreement made without an executed Assignment and Assumption Agreement are null and void. The requirement for provision to City of an executed Assignment and Assumption Agreement shall apply regardless of whether City approval is required for the Transfer. Developer agrees that (a) at least thirty (30) days prior to any Transfer it shall give written notice to City of such proposed Transfer; and (b) within three (3) business days after any Transfer it shall provide City with a copy of the fully executed Assignment and Assumption Agreement evidencing that the assignee has assumed in writing all applicable obligations under this Agreement. A party proposing to assign its obligations under this Agreement (i) shall remain liable for the obligations until and unless the City has received a fully executed Assignment and Assumption Agreement, and (ii) shall remain liable for any default hereunder that occurred prior to the effective date of the assignment. Developer or Developer's successor in interest shall reimburse the City for any costs (other than staff time) the City incurs in reviewing any Assignment and Assumption Agreement required hereunder. 7.2 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided, and the term "Developer shall only mean the owner of a Phase of Development from time to time during the period of such entity's ownership, provided that the procedures set forth 182/015610-0084 -22- 750537 12 .02/26/07 in this Agreement for that entity's acquisition and or disposition of the ownership have been followed, including, without limitation, the provisions of Section 7.1. 7.3 Assignment by City. City may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld. 8.0 MISCELLANEOUS 8.1 Notices. All notices permitted or required hereunder must be in writing and shall be effected by (i) personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii) reputable same -day or overnight delivery service that provides a receipt showing date and time of delivery, addressed to the following parties, or to such other address as any party may from time to time designate in writing in the manner as provided herein: To City: City of La Quinta 78-495 Calle Tampico La Quinta, California 92253 Attn: City Manager Telephone: (760) 777-7031 Facsimile: (760) 777-7101 With a copy to: Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson Telephone: (714) 641-5100 Facsimile: (714) 546-9035 To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Attn: Theodore R. Lennon, Jr. Telephone: (760) 674-2200 Facsimile: (760) 779-1646 With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064 Attn: Timi Anyon Hallem Telephone: (310) 312-4217 Facsimile: (310) 312-4224 Any written notice, demand or communication shall be deemed received immediately if personally delivered or delivered by delivery service to the addresses above, and shall be deemed 882/015610-0084 -23- 750537 12 a02/26/07 received on the third day from the date it is postmarked if delivered by registered or certified mail. 8.2 Enforced Delay; Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include the following: war; insurrection; acts of terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (except that acts or failures to act of the City shall not excuse performance by the City). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall only be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer. Notwithstanding any provision of this Agreement to the contrary, 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 to commence or complete the Project or any Phase of Development or because of economic or market conditions. 8.3 Binding Effect. Except as otherwise provided in this Agreement, this Agreement, and all of the terms and conditions hereof, shall be binding upon and inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the Site, and their respective assigns, heirs or successors in interest, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Project or the Site. 8.4 Independent Entity. The parties acknowledge that, in entering into and performing this Agreement, each of the Developer and the City is acting as an independent entity and not as an agent of the other in any respect. No joint venture is formed by this Agreement. 8.5 Agreement Not to Benefit Third Parties. This Agreement is made for the sole benefit of the parties, and no other person shall be deemed to have any privity of contract under this Agreement nor any right to rely on this Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on this Agreement nor be deemed to be a third party beneficiary under this Agreement. Notwithstanding the immediately preceding sentence, the Agency shall be an intended third party beneficiary to this Agreement. 882/015610-0064 -24- 750537 12 a02/26/07 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 for the benefit of the City's and the Agency's adjoining properties, 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 Officers and Employees. No official, officer, employee, agent or representative of City, acting in his/her official capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs, damage, claim, liability, or judgment, arising out of or in connection to this Agreement, or for any act or omission on the part of City. 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 of 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. Developer shall be required to reimburse City for all costs City incurs in negotiating, preparing, and processing any such alterations, changes, or modifications. In connection with any request for an alteration, change or modification, Developer shall deposit with the City the sum of Ten Thousand Dollars ($10,000). Notwithstanding the foregoing, the City Manager shall have the discretion to authorize a lesser deposit, in the event he or she determines the proposed alteration, change or modification is minor. In the event the funds on deposit are depleted, City shall notify Developer of the same, and Developer shall deposit with the City an additional Five Thousand Dollars ($5,000) to complete processing of the requested alteration, change or modification. Developer shall make additional deposits to City, as needed, pursuant to the foregoing process, until the requested alteration, change, or modification is finalized. Within sixty (60) days after such alteration, change or modification is finalized, City shall reimburse the Developer any unused sums. 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 9821015610-0094 -25- 750537 12 42R6M be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the covenants or conditions to be performed by the other party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof. 8.11 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the parties. 8.12 Cooperation in Carrying Out Agreement. Each party shall take such actions and execute and deliver to the other all such further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. 8.13 Estoppel Certificate. Any party hereunder may, at any time, deliver written notice to any other party requesting such party to certify in writing that, to the best knowledge of the certifying party, (i) this Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement has not been amended or modified either orally or in writing, or if so amended, identifying the amendments, (iii) the requesting party is not in default in the performance of its obligations under this Agreement, or if in default, describing the nature and amount of any such defaults, and (iv) any other reasonable information requested. A party receiving a request hereunder shall execute and return such certificate within ten (10) days following approval of the proposed estoppel certificate by the City Attorney, which approval shall not be unreasonably withheld or delayed. The City Manager, Assistant City Manager, and Community Development Director are each authorized to sign and deliver an estoppel certificate on behalf of the City. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees. 8.14 Construction. This terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa. 8.15 Recordation. This Agreement shall be recorded with the County Recorder of Riverside County at Developer's cost, if any, within the period required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation or termination of this Agreement, shall be similarly recorded. 882/015610-0084 -26- 750537 12 a02/26/07 8.16 Captions and References. The captions of the paragraphs and subparagraphs of this Agreement are solely for convenience of reference, and shall be disregarded in the construction and interpretation of this Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and exhibits of this Agreement. 8.17 Time. Time is of the essence in the performance of this Agreement and of each and every term and condition hereof as to which time is an element. 8.18 Recitals & Exhibits Incorporated• Entire Agreement. The Recitals to this Agreement, all of the exhibits and attachments to this Agreement, and the DDA 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, other than the DDA, shall be permitted to contradict or vary the terms hereof. 8.19 Exhibits. Exhibits "A" — "G" to which reference is made in this Agreement are deemed incorporated herein in their entirety. Said exhibits are identified as follows: A-1 Legal Description of Site A-2 Site Map B Depiction of Public Improvements C Four Star Quality Requirements D Mitigation Monitoring Program E Form of City Declaration of CC&Rs F List of Pre -Approved Operators G Form of Assignment and Assumption Agreement 8.20 Counterpart Signature Pages. For convenience the parties may execute and acknowledge this agreement in counterparts and when the separate signature pages are attached hereto, shall constitute one and the same complete Agreement. 8.21 Authority to Execute- Representations and Warranties. 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 882/015610-0084 _27- 750537 12 a0226/07 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 City Approvals and Actions. Whenever a reference is made in this Agreement to an action or approval to be undertaken by the City Manager, his or her authorized designee is authorized to act on behalf of the City unless specifically provided otherwise or the law otherwise requires. 8.23 Governing Law; Litigation Matters. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflicts of law principles. Any action at law or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting the validity of this Agreement or any provision hereof shall be brought in the Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in said county, and the parties hereto waive all provisions of law providing for the filing, removal, or change of venue to any other court. Service of process on City shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside of California. In the event of any action between the parties hereto seeking enforcement of any of the terms of this Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation shall be awarded, in addition to such relief to which such party is entitled, its reasonable attorney's fees, expert witness fees, and litigation costs and expenses. 8.24 No Brokers. Each of the City and the Developer represents to the other party that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold harmless the other party from such commissions or fees as are alleged to be due from the party making such representations. [end — signature page follows] 882/015610-0084 _28_ 750537 12 a02/26107 IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of the Reference Date. ATTEST: City Clerk APPROVED AS TO FORM RUTAN & TUCKER, LLP City Attorney "CITY" CITY OF LA QUINTA, a California municipal corporation City Manager "DEVELOPER" LDD SILVERROCK, LLC, a Delaware limited liability company In Its: 882/015610-0084 _29_ 750537 12 a0226/07 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0084 -30- 750537 12 a02/26/07 EXHIBIT "A -I" LEGAL DESCRIPTION OF SITE [To be inserted] 882/015610-0084 EXHIBIT A -I 750537 12 aO2/26/07 EXHIBIT "A" LOT 3 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7° 10' 16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84°42'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10II'10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS'CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET; THENCE SOUTH 89°10'29" WEST 235.22 FEET; THENCE SOUTH 00000'00" EAST 140.01 FEET; THENCE SOUTH 89010'29" WEST 273.96 FEET; THENCE NORTH 24°22'35" WEST 22.27 FEET; THENCE NORTH 33058'41" WEST 7.49 FEET; THENCE NORTH 71°08'05" WEST 26.96 FEET TO THE BEGINNING OF A NON -TANGENT 46.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 87031'26" A DISTANCE OF 70.27 FEET; THENCE NORTH 57029'35" WEST 12.72 FEET TO THE BEGINNING OF A 67.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39040'43" A DISTANCE OF 46.40 FEET TOA POINT OF REVERSE CURVATURE WITH A 96.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63020'45" A DISTANCE OF 106.14 FEET; THENCE NORTH 33°48'46" WEST 21.80 FEET; THENCE NORTH 33048'46" WEST 52.19 FEET; THENCE NORTH 26°06'10" WEST 72.34 FEET TO THE BEGINNING OF A NON -TANGENT 196.00 FEET RADIUS CURVE CONCAVE EASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 64121'31" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45049'59" A DISTANCE OF 156.79 FEET; THENCE NORTH 20011'30" EAST 110.45 FEET TO THE BEGINNING OF A 196.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44008'01" A DISTANCE OF 150.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 187.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46004'51" A DISTANCE OF 150.40 FEET; THENCE NORTH 22°09'10" EAST 99.07 FEET TO THE BEGINNING OF A NON -TANGENT 210.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 67051'40" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47034'55" A DISTANCE OF 174.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50026'40" A DISTANCE OF 32.58 FEET TO A POINT OF REVERSE CURVATURE WITH A 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 64°59'55" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 75009'02" A DISTANCE OF 107.55 FEET; THENCE NORTH 90000'00" EAST 428.65 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 855,764 SQ.FT. 19.646 ACRES OHN F. YO G , PL 665 SHEET l OF z I I I II I I I I I I I I �I �II I EXHIBIT "B17 LOT 3 TPM 33367 1 ALL AMERICA_N _CA_NAL _88.75' _ ---- �/-� 893278"W T 19 i II I I I I � 2 I \ I I I 3 1 11 I I� I 4 5 I I 609 � NI N S901X1'00f 42865' a47'3435' `� rl R=210 00' 10 - - - - J( % 1=17440• \ sd .l A6FIES N I R=1878L=74'S1' L=I50.4O' I I I I I �� n=45'49'59' I I I R=196.00 j I L=156.79' N26176.10W I II I NJJ78'46 I 1 521 1 \ R SCALE: \ \ L 1 "=300' \ \ ,W 8 O A=2YJ '71' 1 V.05 AGR68 R=56700pp ., L-27.2p' I I R=196.00' 50770'16' L=150.9Y ��� _14 �12473 h I ry � NJ378Y61P 1 16 / OI 2 I I 2I 80'0=J9'40'4J' �16ri0'il' I I I R- 6700; R=50600' (= 46.40 L=2J0.55 9• &=879176' S89'10'29'W =6J70'45' R' O,2 8 2J511' o I r•; 1 19 N577975S89702969•'W v 9 12.7227J 6 N247235 1 S1E OR 22.27' F. YOUNG Exp. 9-307 08 S NO G 4665 \ � l S 06s 4l F CAl Off? REVISED TENTATIVE CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL TA 3 33367 PLANNING -CIVIL ENGINEERING lAX6 SU NVE YI NG E6IEG X NICAL 1141 NOR➢EL NOAG SUITE 1S5 ESCONDIOO CA 97676 P.117601 1N0 19S5 5 0068 SCN[ 1 =300• DE COUNTY CALIFORNIA EXHIBIT V LOT 3 DATA TABLE No DELTA BEARING RADIUS LENGTH 1 S00'07"12'E - 123.24' 2 1 p=3234'48" 18300' 104.06' 3 p=3654'12" 26700' 171.97' 4 S00 03'16 °W - 48.18' 51 1 p=4106'44" 32.00' 22.96' 6 1 p=12232'06u 63.00' 134.73' 71 1 p=43'45'49" 32.00' 24.44' -81 1 p=28'40'23" 63300' 316.78' 9 1 p=0920'38" 633.00' 103.23' 10 1 p=165836" 49700' 14726' I p = 4236 50" 26700' 198.58' --III 12 1 p = l073627" 29.50' 55.40' 1J p=0171'10" 614.85' 12.73' 14 S2142'36 "W - 75.54' 15 p=00'46'06" 539.31' 1 7.23' 16 I p=60'1757" 22.00" 1 23.15' 17 p =24 34'17"' 93 00' 39.88' 18 p=515748" 3700' 33.56' 19 N33 58'41 "W - 7491 - 20 N7108'05°W - 26.96" _77 p=5026'40" 3700' 3258' 22 p=282447" 82.00' 40.66' SHEET 2 OF 2 REVISED TENTATIVE -"" 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 SCALE 1'=100' PLANNING CIVIL ENGINEERING - LAND SURVEYING - GEOTECHNICAL ryA 1441 UONUEL ROAD SUITE IIS ESCONDIDO CA 670E6, PN PHI 746 466S LOT 3 1 /15/Ofi .ICR EXHIBIT "A" LOT 4 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89052'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007' 12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO THE BEGINNING OF A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08017'50" A DISTANCE OF 48.22 FEET TO THE BEGINNING OF A 32.00 FEET RADIUS'CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °06'44" A. DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21' A DISTANCE OF 272.20 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TC THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1 ° l 1' 10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034' 17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4008'25" A DISTANCE OF 36.71 FEET; THENCE SOUTH 6134'32" EAST 103.90 FEET; THENCE SOUTH 89°10'29" WEST 250.00 FEET; THENCE NORTH 0100'00" EAST 140.01 FEET; THENCE NORTH 89°10'29" EAST 235.22 FEET TO THE TRUE POINT OF BEGINNING. IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 33,888 SQ.FT 0.78 ACRES RIVERSIDE COUNTY CALLFORNL4 SHEET I OF 2 EXHIBIT "B " LOT 4 TPM 33367 t ALL AbfERICAN CANAL - - — ---------- 6952'46'W 19&lls' I T__ i I I I ,. 1 I 6 � i I \� IGT a\ �� �— _ SJ ACRES 9 \ � LOT 2 — 'r--- 46.9 ACRES 1 \ LOT 3 \I 19.6E ACRES-27'�"{I" I R=567 ---------- -m 124.73 — LP261X1'11' I Ra50800; I I L=2Ja55 I T.R.O.S. ` N897079 E &-00875' \ 2352Y R-�'@,' 8 0' LOY 4 L- M..7I \ s3 2.18 AOR6 50671'31'E \ 5897079'W I 10390' 25a00' 111 � I \ Lor 5 l l 12 S o 6 ATE CONSTRUCTION TESTING & ENGINEERING, INC. PLAN NINO - CIVIL E A DINE E RING -LAND SU RV EYING- BEOTECN RIC AL 1441 NONTIEL ROAD, SUITE 111 ESCONDIDO CA. 02026, PN:(700) 746-4055 JOHN F. YOUNG Exp. 9-30-08 No. 4665 PARCEL MAP 33367 LOT 4 1 B 9 17 16 SEC17 N COR 15-0068 1'=300' RIVERSIDE COUNTY CAL EXHIBIT 'B' LOT 4 DATA TABLE No.I DEL TAIBEARING RADIUS LENGTH 1 SOOV7'12 E — 123.24 21 A=3234'48" 183.00 104.05' Jl I 0=3654'12" 267.00' 171.97' 4 �=087750" 333.00' 48.22 5 =4106'44" 32.00' 2296' 6 I 0=12232'06 63.00' 134.73' 7 A=4345'49" 3200' 24.44' 8 0=28'40'23" 633.00' 316.78' 9 0=0970'38" 633.00' 10323' 10 A =16 5836" 497.00' 147.26' 11 1 0=42'3650" 267.00' 198.58' 12 0 =10736 27" 29.50' 55.40' 13 L=0171'10" 614.85' 1273' 14 S2142 M "W — 75. 54 15 p —00 46'06" 539.31' 7.23' 16 p=6077'57" 22.00' 2315' 17 1 0=2434'17" 9300' 39.88' 18 p=5157'48" 37.00' 33.56' SHEET 2 OF 2 REVISED TENTATIVE _ - 15-0066 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 'G 1'=3o0' PLANNING CIVIL ENGINEERING LAND SURVEYING - GEOTECNNICAL 1441 NONTIEL ROAD. SUIIE 116 ESCONDIDO CA. SIDES. MJISO) 711115E LOT 4 11 /15/06 JPR EXHIBIT "A" LOT 5 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89052'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 101 P 10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25°52'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30008'36" A DISTANCE OF 267.26 FEET; THENCE SOUTH 6°34'32" EAST 103.90 FEET; TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 6°34'32" EAST 240.83 FEET TO THE BEGINNING OF A 1312.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13051'15" A DISTANCE OF 317.24 FEET; THENCE SOUTH 7016'43" WEST 281.12 FEET; THENCE NORTH 90°00'00" WEST 248.02 FEET TO THE A POINT ON THE ARC OF A NON -TANGENT 62.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 75001'19" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CUREVE THROUGH A CENTRAL ANGLE OF 105017'29" A DISTANCE OF 113.94 FEET; THENCE SOUTH 68°05'01" WEST 58.78 FEET TO THE BEGINNING OF A 290.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 53043'38" A DISTANCE OF 271.94 FEET TO A POINT OF COMPOUND CURVATURE WITH A 130.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88002'34" A DISTANCE OF 199.76 FEET TO A POINT OF REVERSE CURVATURE WITH A WITH A 128.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45009' 13" A DISTANCE OF 100.87 FEET; THENCE NORTH 15°18'00" WEST 77.53 FEET TO THE BEGINNING OF A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37034'59" A DISTANCE OF 41.32 FEET; THENCE NORTH 22° 16'59" EAST 85.32 FEET TO THE BEGINNING OF A 220.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18049'53" A DISTANCE OF 72.31 FEET TO A POINT OF REVERSE CURVATURE WITH A 46.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 84039' 14" A DISTANCE OF 67.96 FEET; THENCE NORTH 88°06'20" EAST 44.44 FEET TO THE BEGINNING OF A 72.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64022'26" A DISTANCE OF 80.89 FEET TO A POINT OF COMPOUND CURVATURE WITH A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67016'50" A DISTANCE OF 117.43 FEET; THENCE NORTH 56038'44" WEST 26.25 FEET; THENCE NORTH 89°10'29" EAST 523.96 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 517,687 SQ.FT. 11.88 ACRES f-44d= e JOHN F. YO G , PL 4665 SIDE COUNTY CALIFORNIA SHEET / OF z EXHIBIT "B" LOT 5 TPM 33367 ANAL.------��-7I 895248 1988.75- d 11 III \1 I I I I Ili I d: App 1 yy r \ ON u a!pE5 Q I I =273021' R=56700' I I r �);- 5 I� I L=77210' rE+ea nines 124.7J' I I I ICI ' 6N'91 I�=JODBJ6I R=508. 00' L=26726'S06J4J2E, IOJ90' LOY 7GI SCALE:I Ir "= 400' -- - - -- - - 8 9I17 16 SECT/ N COR I JOHN F. YOUNG o Exp. 9-30-08 Na. 4665 REVISED TENTATIVE 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1 '=400' PLANNING -CIVIL ENGINEERING LAND SURYEY114G GEOTECHNICAI 1441 NONIIEL ROAD SUM 115 ESCONDIDO CA 92626. 04 17601 946 4956 LOT 5 12705706 1 DRMN � OT0 OE COUNTY CAI EXHIBIT 'B' LOT 5 ATA TABLE EL TA BEARING RADIUS LENGTH S0007'12E - 12J24 t =32'34'4B' 183.00' 104.06' =J654"12" 267.00' 171.97' p=0877"50" 33300' 48.22' p=4106"44" 3200' 22.96' L=12232"06 "" 6J..00' 1J4.7J' 7 p = 434549' 32 00' 24.44' 8 p=28'40'23" 6JJ.00' J16.78' 9 L=0920'38" 63J..00' IOJ23" 10 p=165836" 497 00' 147.26' 11 L=4236"50 267.00' 198.58' 11 p =10736 27" 29.50' 55.40' 13 p=01'I1'10" 614.85' 1273' 14 S21'42'36"W - 75.54 l5 p=0016'06" SJ9J1" 723' 16 p=60'1757" 22.00' 2315' 17 p=243411711 9.00 39.88' 18 p=515748" J7 00" J3.56' 634 J2"E - 240.83 1351"15"' 1312.00' 31724" 7'16'43"W - 28112" 0'00'00'W - 248.02' 1057729" 62.00' 11394' 8'05'01 "W - 58.78' =53'4J'J8"290.00" 271.94' =88 02'34 "' UN 13000' 199.76' =45'09'1J"00' 100.87' 5'18"0VJW=3734'59"6300' 41.276'59 E - B5.32" =18'49'5J" 220.00" 72.31' =84 J9'14 "' 46. 00' 6796' 8.0 ,0"E - 44.44' J5 p=642226" 72.00' 80.89' 36 p=6776150" 100.00' 34.40' J8 N563844°W - 26.25" SHEET 2 OF 2 REVISED TENTATIVE -'- 15-0066 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 SCALE 1"-400' PLANNING CIVIL ENGINEERING LAND SURVEYING GEOIEGNNICAL LOT 5 p1'" 1341 NONUEL ROAD SVIIE IIS ESCONOIGO GA 92026 PH 116p 716-4155 12705�06 �T(i_ EXHIBIT `•A" LOT 11 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1922.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 117.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 66.53 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28027' 17" A DISTANCE OF 165.38 FEET TO A POINT OF INTERSECTION WITH A NON -TANGENT 150.00 FEET RADIUS CURVE HAVING A RADIAL LINE TO WHICH BEARS SOUTH 0003'38" EAST, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47019'48" A DISTANCE OF 123.91 FEET TO A POINT OF REVERSE CURVATURE WITH A 899.20 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20039'06" A DISTANCE OF 324.11 FEET TO A POINT OF COMPOUND CURVATURE WITH A 450.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41017'02" A DISTANCE OF 317.27 FEET; THENCE NORTH 75°20'02" EAST 130.18 FEET TO THE BEGINNING OF A 200.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50029'26" A DISTANCE OF 176.25 FEET; THENCE SOUTH 54°10'32" EAST 36.66 FEET TO THE BEGINNING OF A 75.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71 °28' 15" A DISTANCE 93.56 FEET; THENCE SOUTH 17017'43" WEST 74.78 FEET TO THE BEGINNING OF A 90.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65055'38" A DISTANCE OF 103.56 FEET; THENCE SOUTH 48°37'55 EAST 196.68 FEET TO THE BEGINNING OF A 125.00 FEET RADIUS CURVE CONCAVE WESATERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 73004'09" A DISTANCE OF 159.41 FEET; THENCE SOUTH 24026'14" WEST 59.02 FEET TO THE BEGINNING OF A 175.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65024'55: A DISTANCE OF 189.12 FEET; THENCE SOUTH 89°51'09" WEST 116.33 FEET TO THE BEGINNING OF A 140.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 94018'57" A DISTANCE OF 230.46 FEET; THENCE NORTH 4°10'06 EAST 111.79 FEET TO THE BEGINNING OF A 115.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81018'13" A DISTANCE OF 149.84 FEET; THENCE NORTH 77°08'07" WEST 16.05 FEET TO A POINT OF INTERSECTION WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 68139'29" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41027'06" A DISTANCE OF 240.91 FEET TO A POINT OF COMPOUND CURVATURE WITH A 563.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 166.82 FEET TO A POINT OF REVERSE CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37017'37" A DISTANCE OF 369.06 FEET TO A POINT OF COMPOUND CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50025'57" A DISTANCE OF 28.17 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63051'20" A DISTANCE OF 70.21 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54046'50" A DISTANCE OF 30.60 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5019'20" A DISTANCE OF 24.80 FEET TO A POINT OF COMPOUNF CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8026'55" A DISTANCE OF 49.10 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 375,971 SQ.FT. JY� U OHN F. G , P 665 8.631 ACRES SHEET 1 OF 2 EXHIBIT "B" LOT 11 TPM 33367 — -41-1 . H4 ECNAJ1 IT..P.c LOT 2 I 46,94 ACRES LOT 23 I 3.92 ACRES I ( I I� Ilg I� E I t y — v I I � I I o \ I n A \ 1"=30--30 0" b957'M"W 1972.75' ° I ' I I I 4 I I I_OT1l2 I 299 ACRES ❑s 7 9 NI \�® 10 �I ` II — — — —- �I © Il I --12 — I LOT 3 I 1 BL, d — — — — 11 iB,e6 AGAEBI I /9 ----+— TI — — — — — — LOT 4 LOT 5 I I I I �I I I I I I I 31 I QI gl 21 I I I I I I 8 9 17 16 SECT, NC - JOHN F. YOUNG p Exp. 9-30-08 no. gees HN F YOUR S 4665 D TE 9lF OF CA\f REVISED TENTATIVE 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 E 1"=300' PLANNING -CIVIL ENGINEERING- LAND SURVEYING-GEOTECNNICAI 1441 NGNTIEL ROAD, SUITE 115 ESCONDIDO CA YYNa, PN:peq YxN•AEss LOT 11 1111 /20/06 JPR SHEET 2 OF 2 EXHIBIT 'B' LOT 11 DATA TABLE No. I DEL TAIIIEARING RADIUS ILENG7H SOOV 12 E 12J24 =323448' 117.00' 1 66.53' =2877'17' 33300' 1 16538' =477948' 150.00' 1 123.91' AL =2039 06 899.20 324.11 6 A=417702 450.00 324.24' 7 N757002 E — 130.18 8A =507926 20A00 176.25' S547032 f 36.66 f0 =717815 7500 93.56 11 S177743 W — 74.78 A=653538 10356 S483 55 f 196.68 14 � =7304 09 159.415247614 W N125. 59.02 0=6574'55 199.80 S898109 W 116.33 A=94785 230.46' N047006 i11.79 =817813' 115.00' 1 16,119' N77V807 W 16.05 &=417 06 3M00 240.91 0=163836 563.00' 166.82 A=377777 567.00 369.06' A=50'255 32.00 2&l 0=635120 63.00 70.21 A =5446 50 32.00 30.60 A=057920 267.00 14.80 A=087655 .M..00' I 49.10 CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLANNING CIVIL ENGINEERING LAND SURVEYING - GIOTECRNICAL LOT 1 1 1 4RI NONTIEL ROAD SUITE 115 ESCONDIOO CA 9 6606 PH I16011161lOO EXHIBIT "A" LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5 AND THE NORTH WEST QUARTER OF THE NORTH WEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 41057'54" WEST 674.79 FEET; THENCE NORTH 88127'35" WEST 244.20 FEET; THENCE NORTH 7°47' 15" WEST 289.62 FEET; THENCE NORTH 83126'27 EAST 398.98 FEET; THENCE SOUTH 29°58'O1" EAST 952.82 FEET; THENCE SOUTH 52039'03" EAST 485.41 FEET; THENCE SOUTH 57°16'16" EAST 463.15 FEET; THENCE SOUTH 30°58'20" WEST 183.52 FEET TO THE BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 10057'45" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A 118.00 FEET RADIUS CURVE HAVING A RADIAL TO WHICH BEARS SOUTH 21°49'41" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40120'08" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30032' l6" A DISTANCE OF 45.84 FEET; THENCE SOUTH 28000'41" EAST 18.67 FEET; THENCE SOUTH 61°59'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 57000'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.84 FEET RADIUS CURVE CONCAVE NORTHEASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 20004'07" EAST; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36031'16" A DISTANCE OF 145.23 FEET; THENCE NORTH 33024'37" WEST 99.07 FEET; THENCE NORTH 66°23'28" EAST 120.28 FEET; THENCE NORTH 23°38'13" WEST 532.29 FEET; THENCE NORTH 41057'54" WEST 149.34 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 600,614 SQ. FT. 13.79 ACRES OHN F. YOUp , PL64665 DATt �� J 12-1 / /o F CONSTRUCTION TESTING & ENGINEERING, INC. PLAN MIND -CIVIL ENGINEERING -LAND SURVEYING-GEOTECHNICAL 1441 NONTIEL ROAD. SUITE 115 ESCONDIDO CA. 1E0E0, P11:1110) 146.4151 JOHN F. YOUNG Exp. 9-30-06 ft ANNN SCALE. I "=3OO' PARCEL MAP 33367 Im rear FOR LOT 19 �o/ze/oa EXHIBIT "A" LOT 22 THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 1321.32 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 8; THENCE SOUTH 0000'57" WEST ALONG THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER 896.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 84°57'26" EAST 1 15.10 FEET; THENCE SOUTH 80055'40" EAST 31.00 FEET; THENCE SOUTH 10158'24" WEST 69.75 FEET; THENCE SOUTH 10'36'56' WEST 57.87 FEET; THENCE SOUTH 8017'25" EAST 35.32 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO WHICH BEARS SOUTH 68010'42" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66018'23" A DISTANCE OF 65.96 FEET; THENCE SOUTH 48°16'59" WEST 4.08 FEET; THENCE SOUTH 61045"27" WEST 4.67 FEET; THENCE SOUTH 63123'36 WEST 6.23 FEET; THENCE SOUTH 57017' 10" WEST 6.01 FEET; THENCE SOUTH 59°28'05" WEST 5.26 FEE7; THENCE SOUTH 70005'07 WEST 5.56 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO WHICH BEARS NORTH 13018'47" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50056'06" A DISTANCE OF 50.67 FEET; THENCE SOUTH 48°18'02" WEST 13.21 FEET; THENCE SOUTH 20003' 17" WEST 15.59 FEET; THENCE NORTH 69051' l2" WEST 40.59 FEET; THENCE SOUTH 24'11'42" WEST 78.02 FEET; THENCE NORTH 64037'29" WEST 151.50 FEET; THENCE NORTH 29110'52" EAST 266.14 FEET; THENCE NORTH 84°57'26" EAST 53.90 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 63,531 SQ. FT. 1.46 ACRES SHEET 1 OF 2 6 L5 7 8 N89w'2A EXHIBIT 'E 0 LOTS 20 It 22 — — SEC75 c9�� LOT B SCALE. 1'=100' M Lari22 LOT 20 ----------- I Lar A Lar A (-(JZOHN F. YGUNG . 9—:08 * 9Ea AIM OHN F.YO<U S 4665 / / A7E�- GF CA c491 CONSTRUCTION TESTING & ENGINEERING, INC. I FOR LOTS 20 BL 2 1 PARCEL MAP 33367 '�"` PLANNING CIVIL ENGINEERING -LAND SURVEYING GEUIECRNICAI H91 NONEIEL ROAD, SUITE III ESCONU100 SA 92026 PH OS01 141 495I tG1'27/Q6 SHEET 2 OF 2 EXHIBIT T LOTS 20 It 22 DATA TABLE No. I DEL TAIVEARING RAD/US LENGTH p=3'4019 950.00 60.88 2 1 A =44V8'05 60.00 46.22' N247340 E — 50.28' 4 1 S695112 E — 40.59 5 1 N20'03 / E — 1559 N487802 E — 13.21 7 1 L=50'56'06-57.00' 50.6 N7O 0 E — 5 56 N597805 E — 5.26 10 N577 10 E — 6.01 N637336 £ — 6.23 1 N614527 E — 4.67 13 N487659 E — 4.08 14 S087725 E — 3532 5 S805540 E CONSTRUCTION TESTING 8 ENGINEERING, INC. I PARCEL MAP 33367 PLANNING MO1uEL 1040E SUITES ENGINEERING ESCO900100 CA 92126. PH 1111111111955 FOR LOTS 20 & 21 EXHIBIT "A" LOT 23 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007' 12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °06'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE NORTH 90°00'00" WEST 428.65 FEET TO A POINT ON THE ARC OF A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 86°35'18" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46044'15" A DISTANCE OF 66.89 FEET; THENCE NORTH 50008'57" WEST 134.38 FEET TO THE BEGINNING OF A 47.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29029'38" A DISTANCE OF 24.19 FEET; THENCE NORTH 4°13'09" WEST 26.65 FEET; THENCE NORTH 16°50'59" WEST 18.54 FEET; THENCE NORTH 28012'57" WEST 19.28 FEET TO THE BEGINNING OF A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54007'55" A DISTANCE OF 34.96 FEET; THENCE NORTH 27°09'48" EAST 40.67 FEET TO THE BEGINNING OF A 250.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22050'21" A DISTANCE OF 99.65 FEET TO A POINT OF REVERSE CURVATURE WITH A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 85040'33" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54026'03" A DISTANCE OF 77.90 FEET; THENCE NORTH 27059'09" EAST 16.70 FEET TO THE BEGINNING OF A 56.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28038'36" A DISTANCE OF 28.00 FEET; THENCE NORTH 19°10'35" EAST 27.25 FEET TO THE BEGINNING OF A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35032'06" A DISTANCE OF 62.02 FEET; THENCE NORTH 40°04'06" WEST 64.22 FEET; THENCE NORTH 42039'54" WEST 47.50 FEET; THENCE NORTH 37°36'08" WEST 102.14 FEET TO A POINT ON SAID SOUTHERLY RIGHT-OF-WAY OF THE ALL AMERICAN CANAL; THENCE NORTH 89052'48" EAST ALONG SAID RIGHT-OF-WAY 215.01 FEET TO THE TRUE POINT OF BEGINNING. IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 166,459 SQ.FT 3.82 ACRES /2 :s o 6 N DYfE t. 4606 SCALE: 1 "=300' AR I 15 r IA 4S.94 ACRES' �. I I� 2 `.I WIDE COUNTY CALIFORNIA SHEET 1 OF 2 EXHIBIT f1B 7' LOT 23 TPM 33367 COACHELLA CANAL- 32 e8i T _ -- 0r' e952'4e'If T 19&1v I ra.a& LOT 23 L 8.52 ACRES .I L , ,7' L? , 29. A 4-28 ri R-6JJ L-J16.78 N90T10'90Y 42865' &Y ACR95 � 1 I CST 3 �� 1 i9.86 ACRES '-- ; I v -- '- LOT 5 F. YOUNG Exp. 9-30-08 No. 4665 NI �1 �l I 1 I I +77N SEOR REVISED TENTATIVE "`" I5-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1•=300' PLANNING •CIVIL ENGINEENING•LAND SUNVEYING-GEDTECNNICAL LOT 23 1441 N0ITIEL ROAD, SUITEP 116 ESCONDIDO CA. 1E0E1, IMI) T01.4155 -11 i$ U6 JPR SHEET 2 OF 2 EXHIBIT Y LOT 23 DATA TABLE No.I DELTA BEARING RADIUS LENGTH 11 50007'12T — 123.24 2 A=323449" 183.00' 104.06' 3 A=3654'12" 267.00' 171.97' 4 A=87750 33%00 48.22 5 0=410644" 32.00' 22.96' 6 L=12232'06" 63 00' 134.73' 7 L=434549" 3200' 1 24.44' 8 A=46'44'15 82.00 66.89' 9 0 =2929 38 47.00' 24.19' l0 N0473'09"W — 26.65' Il N165059"W — 18.54' 11 N287257 W — 19.28 131 L=540755 37.00 34.96' l4 N2709 48 E — TO. 67' 15 ,'�,=215021 250.00' 1 99.65' 16 ,L=5426'03" 82.00' 1 77.90' 1 N2759'09 E — 16.70 l8 p=28'38'36" 56.00' 28.00' 19 Ni9'10'35 E — 27.25 0 L=3532'06" 100.00' 62.02' I N4004'06"W — 64.22 2 N4239'54 W — 4750 3 N3736 08"W — 102.14 CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLANNING 1100TIEL ROAD, 00ERD IN E SUITE1 5 EOCO00IERING DO Cop 104100000. PH:(7001 700I/100 LOT 23 15-0068 r=10o' EXHIBIT "A-2" SITE MAP [To be inserted] '92/015610-0084 EXHIBIT A-2 750537 12 a02/2WO7 1' !i Initlrtll'IaIavIng ' ■ �►� 0! ����� YYYYYYa.lin■ka■►=IYhYra5a3.mi IDa'Agalgazx" 1 k Y ► . k ►. jj ►i li II = tt t nett null a �!! 1 1 � � i II il: I ■tl 11 ������ iti (( 1�llfl �i►uln 111►ev► y"!I�t'Inm 951IiEI!IilEiiiiililllEE ►► I PRO ►'. :�► lit : :' .1 :1 Hi Ili :I eiiiiiw el 11110, 1111 Ill, i i 1� l EE i ieeeeeiieie'v3riieiii�e� II°li'1I1! ) dill dpv@l�v@tltl.9 x�u llll(+l1,E�j dl idl l�� p� � 11 f► 5 ni Igo— �. v' •'i' :i !'tl 'tl tl ��: 1 f GIiIIi 44'GI'u4y 1• II �d� I gtlq Pill !l .111!� 4 4 444444 4 4 4 4 4 4 � a EXHIBIT "B" DEPICTION OF PUBLIC IMPROVEMENTS [To be inserted] 882/015610-0084 EXHIBIT B 750537 12 a02126/07 14 ML CrY 0 _h 113tnh a"N'? LYr 4VUP=. SWL tC VLI"A REMISED TENTATIVE PARCEL MAP NO. 33367 1 AYENJE 52 Q y yfi fry _ THE :TRus '' I � •1 iaa' � I I .1� A O 1 01 it •1 I ) I'A a ' ---- ---- - -I`—�--- - ------ _ - fin r �• ..� 9,TAJ554 w I YJ KS 1 EXHIBIT W LIST OF PUBLIC IMPROVEMENTS The following areas depicted on Exhibit "B" shall be subject to a Maintenance Agreement: 1. The north and south areas adjacent to Lot "F" (main entry roadway) between Jefferson Street and the intersection of Lots "G" and "H". 2. The west portion of Lot "H", south of the main entry and adjacent to Lots 3, 4, and 5. 3. Both sides of Lot "G" adjacent to Lots 3, 11, and 23. 4. The entirety of Lot 'I" adjacent to Lot 11 5. All lake frontage adjacent to Lots 3, 5, 11, 19, and 23. EXHIBIT "C" FOUR STAR QUALITY REQUIREMENTS Four -Star Quality under this agreement indicates an outstanding hotel providing the guest with a luxury experience in a distinctive setting, including expanded amenities and exceptional service. Guests can expect an exceptional experience, where no less than ninety five (95) percent of the following detailed characteristics are consistently met or exceeded. Except as provided in the following two paragraphs, the detailed characteristics list below applies in its entirety to all components of the Project, including, without limitation, all of the Units and all other facilities and amenities (including the spa, fitness facility, restaurants, etc.) to be developed on the Site. Certain of the detailed characteristics shall not apply to Condominium Hotel Units or Fractional Units located in "casita" buildings, and such characteristics are preceded by an asterisk (*). For purposes of this Agreement, the term "casita" building shall refer to a hotel building that is not the main hotel building on the Boutique Hotel Parcel or the Resort Hotel Parcel. Subject to the immediately following paragraph, Condominium Hotel Units and Fractional Units in casita buildings shall be required to comply with all of the detailed characteristics other than those characteristics preceded by an asterisk. Certain of the detailed characteristics shall not apply to Fractional Units, and such characteristics are preceded by a double asterisk (**). Fractional Units shall be required to comply with all of the detailed characteristics other than those characteristics preceded by a single or double asterisk. Services Detail • Staff is well-groomed with professional, neat and well -maintained attire. • All staff encountered are pleasant and professional in their demeanor. • Front desk staff are articulate, smile and make eye contact. • (**)The front desk is staffed twenty-four hours. • (**)Restaurant on -site serving three meals daily. • Valet parking is available. • Baggage assistance is automatic. • (*)Complimentary newspapers are delivered to room automatically. • (**)Complete room service is available. • (**)Workstation is available where guest can access Internet. EXHIBIT C 8821015610-0084 Page I of 7 750537 12 ao226/07 g • (**)Basic fitness equipment is provided, including treadmills and cycles. • Written confirmation is automatic or offered, either by mail, fax or e-mail. • Guests name is used effectively, but discreetly, as a signal of recognition. • The time from arriving at the reception area until registration is complete does not exceed five minutes (includes queuing). • Bed is plush and inviting with oversized or numerous pillows. • Bedcovers are elegant and stylish and with linens of exceptional quality and comfort. • All written information is provided on good quality paper or pads, custom -printed or logoed. • Bathroom presentation and placement of amenities and linens is thoughtful, careful, and elegant. • (*)Fresh ice is provided during evening service or at another time during the day. • (**)Turndown service is automatically provided. • (**)During turndown service, guest clothing is neatly handled and guest toiletries are neatly arranged and displayed on a cloth or shelf. • (**)Room service is delivered within 30 minutes. • Room service order is delivered within five minutes of quoted time. • (*)Two hour pressing available • (*)Same day laundry and dry cleaning is available seven days/week. • Wake-up call is personalized with guest's name and time of day. • Wake-up call is delivered within two minutes of requested time. • (**)Special service desk identified as concierge/guest service is situated apart from reception/front desk. • If spa services are present, treatments are begun and ended on schedule, within five minutes of expected or booked time. • If spa services are present, during treatment, therapist appears to be genuinely expert, moving seamlessly through the treatment as described and expected. Facilities Details Self parking area is free of debris, good condition; surfaces, curbs, paths. All outdoor walkways and approaches are well -maintained and cleaned. EXHIBIT C 882/015610-0094 Page 2 of 7 750537 12 a02/26/07 • Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition. • Public spaces are free of obvious hazards. • Elevator landings, cars and doors/tracks are clean and in good condition. • Guest room corridor floors, walls and ceilings are free of debris, marks, and damage. • All furniture, fixtures and equipment are clean, neat and well -maintained. • Ashtrays throughout public areas are well -maintained and free of excessive debris. • Temperature in all interior public areas are maintained in general comfort range. • Public washrooms very hygienic and neat, with well -stocked paper and soap. • Public washroom fixtures, walls and floors are in very good condition. • Meeting rooms are well -signed so that it is easy to find and arrive at a specific room. • Meeting room doors are in good condition, free of nicks and damage. • Meeting room interiors are in generally good condition, including walls, floors and ceiling. Lobby provides a comfortable seating area. • Lobby floors, walls and ceiling are free of debris, marks and damage. • Lobby areas feature elegant live plants and/or fresh floral displays. • Notices are professional, matching decor, not "homemade". • (*)Vending and/or ice machines are located on each guest floor. • (**)Vending and/or ice areas and equipment are clean, well -lit, and well -maintained. Service doors are clean, free of marks and damage, and closed. • (**)A variety of different sized and appointed rooms available in hotel. • (**)High quality, varied, and major brand sundry selections are available in an on -site store. • (**)Suite (separate bedroom and living areas) accommodations are available. • (**)A dedicated and secure luggage storage area is available. • Public phones are convenient, and equipped with seats, privacy panels and pad/pens. • Public washrooms are furnished with upgraded materials and appointments/luxurious design. EXHIBIT C 882/015610-0084 Page 3 of 7 750537 12 .02/26/07 g • Televisions feature premium cable TV (two movie channels, two all -news, two financial). • Pay -Movie selections are available through television. • (*)Guest room telephones have two lines. • Guest rooms equipped with data ports (guest can connect laptop to the Internet). • Direct dial phones with direct long distance dialing are available in each guest room. • If public phonebook present, it is displayed in attractive cover. Guest Room Detail Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good condition. • Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc. • Walls and ceilings are free of marks, stains and damage. • Drapes are free of stains, damage; pull easily and hang properly. • Furniture is free of dust, marks and damage. • All printed material including collateral, phonebooks and stationery are neat, crisp and current. • Drawers and shelves are clean, free of dust and debris. • All light bulbs operate; all light fixtures and lamps are in good condition, clean. • Mirrors and windows are free of smudges and damage throughout. • If safe is provided, it is clean, functional and convenient. • Room equipped with accurate, functional clock and radio/stereo. • Color television works and is equipped with remote control, and is minimum 19". • All bedding and linens are free of debris, hairs, damage and stains. • Room heating and air conditioning is easily controlled by guest and is quiet. • Air is fresh and clean, no stuffiness or odors. • Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration. • Bathroom tile and grouting is clean, not discolored, cracked or mildewed. • Faucets and drains operate smoothly and easily. EXHIBIT C '82/015610-0084 Page 4 of 7 750537 12 a02/26/07 g • Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath towel. • If robes are provided, they are free of spots, stains and loose threads. • Guest room door and frame free of marks, scratches and scuffs. • (*)Comfortable seating for two people (other than bed) (exemption only applies to Units in Lock -Off suites specifically designed as smaller sleeping quarters; otherwise this item is required in all accommodations designed as single hotel rooms and hotel room Lock - Off Units). • Guest service directory, pad and pen/pencil present and conveniently placed. • Enclosed closets (means closets must have doors). • There are three spacious drawers or enclosed shelves (inside closet). • A Luggage rack or bench provided; and adequate space to leave suitcase. • Extra clean and hygienic blanket and pillow provided in room. • Lighting throughout the room is adequate. • The room can be fully darkened. (**)Full-length mirror present in room. • A hairdryer present in room, clean and functional. • (**)Each guest room has two phones (one could be in the bathroom). • Comfortable desk and chair are available for working, complete with telephone, data port, and light. • Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are present in room. • (**)Minibar is present (defined as selection of several beverages and snacks). It is non auto -charge, and premium products are attractively displayed. • (**)Minibar is hygienic, free of spills and damage, all products are sealed, price list present. • If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available. • Pillows are plush and full, no foam. • Framed artwork or interesting architectural features exist in room. • Excellent lighting is provided in bathroom for makeup and shaving. EXHIBIT C 882/015610-0084 Page 5 of 7 750537 12 OV26/07 g • Hygienic soap, shampoo and four other bath amenities are provided. Amenities are presented attractively, thoughtfully (not simply lined up on counter). • Towels are of absorbent quality, with soft nap and no discoloration. • Towels are free of spots, stains, tears and obvious frays. • Guest room is of generous size, and provides ample seating for more than two persons. • (**)Selection of at least 10 hangers including a variety of bars, clips and padded. • (**)In -room safe is present. • Bed is triple sheeted or features washable duvets. • (*)Live plants are present in guest rooms. • Shaving/makeup, lighted magnifying mirror is present. Specialized Facility Detail Pool/beach furniture is clean, hygienic and well -maintained. • Pool deck or beach/sand is clean and free of excessive debris. • Pool deck and tiling are in good condition, free of excessive damage or wear. • Pool water is clean, free of debris and free of notable odors. • Pool fittings and equipment (ladders, dive boards) are secure and in good condition. • If tennis exists on site under same management, court surfaces are in good condition, free of damage and well -marked. • Tennis courts and surrounding areas are clean and free of debris. • Fixtures, nets, lights, fences are well -maintained and good condition. • If golf exists on site under same management, pro shop/clubhouse interior are clean and well -maintained; displays and counters neat and tidy. • Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance. • Golf carts are clean, well -organized and maintained. • Rental equipment is clean and good condition, including bags. • (**)Guest can pick up e-mail and access the Internet from a Business Center workstation. • (**)Business Center working areas are clean, tidy and professional. • (**)Comfortable office -style chairs at the Business Center guest workstations. EXHIBIT C 882/015610-0084 Page 6 of 7 750537 12 a02/26/07 • All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained. • (**)Spa reception area is well-defined, neat and professional. • Fitness equipment is clean, in very good condition, conveniently laid out. • Fitness/workout area is well -ventilated, with comfortable temperature. • Fitness equipment is available with personal headphones/televisions. • Sound system or television provided in fitness/workout areas. • Towels are provided in locker and fitness areas. • Grooming area equipped with hairdryers; soap and shampoo conveniently placed. All amenities are neatly and professionally presented; very hygienic. Locker room, showers, sauna and hot tub extremely clean, hygienic appearance. If Business Center is present, a semi -private working area with workstation and telephone is available for guests. • If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes, and they are clean and in good condition. • If spa or fitness center exists on site, complimentary amenities to include body lotion, shower caps, talc/deodorant and combs. • If spa exists on site, at least two types of massage and either body treatments or facials are also offered. • If tennis is available on site, water is available courtside. • If pool or beach service is present, ample towels are available poolside or at the beach. • Current newspapers and national -title magazines are provided in fitness and locker areas. • If spa, treatment rooms are equipped with individually controlled temperature and sound systems. 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C 04All ad p LK 'O v yy yy m vEo zu E m b y� g3` Ea Z-0 t c goq 'OE qx Y 'O do � O A UyC� �'e ij 'Q C > m� .Tk� � � 4_ •d OON E ~Kg� � � V'� e y V Yi -ap C� p •O > O s tE V .;1 .� C Ly+ GG E Y r d yi -'O p a SL a {g: Sc a E� < my � a 6' IL 0.10 d G Fc3 `oe03s".'c� 4 !§ k%[ /2 G& j�7 = k«&j§} {`�����`°��� mc0f°7§!� as_|,, p Itf§ .2 a | ~ CL E f!|$ {k )| a� ± EXHIBIT "E" FORM OF CITY DECLARATION OF CC&Rs [See following document] "21015610-0084 EY IIBIT E 750537 12 a0Y26M RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Manager (Space Above This Line for Recorder's Office Use Only) (Exempt from Recording Fee per Gov. Code § 27383) DECLARATION OF COVENANTS CONDITIONS, AND RESTRICTIONS This DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS ("Declaration") is entered into this day of by and between the CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the Constitution of the State of California ("City"), and LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. Developer is the fee owner of that certain real property located in the City of La Quinta, County of Riverside, State of California, and more particularly described on Exhibit A attached hereto (the "Property"). B. Developer has obtained approval from City to develop and operate on the Property [select applicable Phase of Development: (a) [Use for Boutique Hotel Parcel and Resort Hotel Parcel] a "Four Star Quality" (as that term is defined in Section 1.2 below) hotel with associated amenities; or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] a "Four Star Quality" (as that term is defined in Section 1.2 below) "casita" development] (the "Project"). [To be added to Declarations where (b) above applies: For purposes of this Declaration, the term "casita development" shall mean and refer to one or more hotel buildings that contain "Units" (as that term is defined in Section 1.1 below) but that are not a main hotel building (e.g., a building with guest check -in areas and a lobby).] C. As more particularly described in Section 1.1 hereof, a portion of the Project has been subdivided into condominium units. D. Pursuant to that certain Development Agreement entered into by and between Developer and City on or about , which was recorded on as Instrument No. in the Official Records of the County of Riverside (the "Development Agreement"), as a condition to the approval of the Project and as one of the conditions precedent to the La Quinta Redevelopment Agency's obligation to convey the Property to Developer, Developer is required to have executed this Declaration and delivered it to the escrow agent handling said conveyance, for recordation against the Property concurrently with the Agency's conveyance thereof. 882/015610-0084 _ 1 755505.08 a02/27/07 E. City has fee interests in the municipal golf course(s) located within the "SilverRock Resort Area" (as that term is defined in Section 1.6 below), and in various streets, sidewalks, and other property within the City (the "Benefited Public Property"), and is responsible for planning of land uses within the City in such a manner as to provide for the health, safety, and welfare of the residents of the City. The Benefited Public Property is legally described in Exhibit "C", attached hereto and incorporated herein by this reference. F. Developer and City desire to enter into this Declaration to bind the Property, and all of the Units thereon. The restrictions and covenants herein shall be deemed to be included with and imposed as restrictions on the Property and on each and every conveyance of the (i) Property, (ii) the "Condominium Hotel Units," and (iii) the "Fractional Units" (as those terms are defined in Section 1.1 below) without express reference thereto in the deed evidencing such conveyances. DECLARATION NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer agree, on behalf of themselves, and binding the "Operator" (as defined in Section 1.2 below) and the successors and assigns of Developer, including, but not limited to, the owners of the Units (each, an "Owner," and collectively, the "Owners") and the "Project Owner" (as defined in Section 1.2 below) including for the benefit of City, as follows: 1. Restrictive Covenant. 1.1 Project Accommodations. The Project includes [select applicable: (a) [Use for Boutique Hotel Parcel and Resort Hotel Parcel] a main hotel building containing _ units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"), with (__) of such Units owned by the Developer and managed by the Operator (each, a "Hotel Unit," and collectively, the "Hotel Units"), _ (__) of such Units available for sale to third -party owners (each, a "Condominium Hotel Unit," and collectively, the "Condominium Hotel Units"), (_-) of such Units designated as "Fractional Units" (as that term is defined below), and one or more "casita" (as that term is defined below) buildings containing _ (_) Condominium Hotel Units and _ (_) Fractional Units); or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] a casita development containing _ units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"), with (_—) of such Units available for sale to third -party owners (each, a "Condominium Hotel Unit," and collectively, the "Condominium Hotel Units"), and _ (-_) of such Units designated as "Fractional Units" (as that term is defined below). [To be added to Declarations where (a) above applies: For purposes of this Declaration, a "casita" building shall mean and refer to a hotel building that is not a main hotel building.] For purposes of this Declaration, a "Fractional Unit" is either (i) a Unit that is a condominium, the ownership of which is divided into multiple fractional interests, including, without limitation, timeshare interests, each of which can be owned by separate owners or by the same owner, and each of which gives such owner the right to use such Unit for a different period of time; or (ii) a Unit that is owned in fee by the Developer, Developer's successor in interest, Destination Hotels & Resorts, Inc., a California limited liability company 882/015610-0084 _ 755505.08 a02/27/07 -2' ("DHR" ), or a successor in interest to Developer or DHR that is authorized or permitted pursuant to the Development Agreement, and in which memberships are sold to third parties giving such parties the right to use and occupy the Unit for certain periods of time. All Units in the Project shall be developed as Condominium Hotel Units, Fractional Units, and/or Hotel Units, and shall be completely furnished with furniture, fixtures and equipment to the standards established by the Operator of the Project. A furniture, fixtures and equipment reserve account shall be established and maintained, in a reasonable amount, in order to maintain and, when necessary, replace the furniture, fixtures and equipment within the Units to maintain the facility at a Four Star Quality. 1.2 Management of Project and Management of Condominium Hotel Units. During the term of this Declaration, each Unit shall be managed by an entity authorized by the Development Agreement (with such authorization required only during the period requiring such authorization set forth in the Development Agreement) and designated by the owner of [select applicable: (a) [Use for Boutique Hotel Parcel and Resort Hotel Parcel] the Project; or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] the resort hotel development constructed on Lot 3 of Parcel Map No. 33367, recorded on in Book , Pages _ to _, in the Official Records of the County of Riverside] to operate the Project (the "Operator"). In addition, when a Condominium Hotel Unit is not being used by the Owner thereof, or guests of the Owner, such Condominium Hotel Unit shall be made available for rental as a hotel room in the Project. If the Operator is not the Owner's rental agent, or if the Owner is acting without a rental agent, then the Operator shall have the right, working through the Owner or its designated rental agent, to book such Owner's Condominium Hotel Unit (to the extent it is then unbooked) to fulfill demand made of the Operator within the two (2) weeks prior to the date when such Condominium Hotel Unit is needed for booking by the Operator. In all circumstances, (i) the Owner or the Owner's rental agent, if not the Operator, shall be required to make a reservation through the Operator a minimum of two (2) weeks prior to any use of the Condominium Hotel Unit by the Owner or such Owner's guest, which reservation shall cover the entire length of stay of the Owner or such Owner's guest; and (ii) the Operator shall have full access to each Condominium Hotel Unit's reservation and booking schedule (whether maintained by the Owner or the Owner's rental agent), so that the Operator can fulfill its booking (within the two (2) weeks prior to a given date as provided above) and management obligations hereunder. As used in this Section 1.2, the terms "managed", "management" and words of similar import shall mean that the Operator shall be engaged by each Owner of a Unit pursuant to the Operator's then -standard form of agreement to manage the upkeep and care of such Unit and its use by parties other than the Owner, including by providing such services commonly provided at a "Four Star Quality" (as defined below) hotel, including without limitation, such services as front desk check -in and check-out services (including electronic keys), routine housekeeping, laundry and dry cleaning, room service, catering and other food and beverage services, spa services, concierge services, parking and bellman services. The use of such services shall be conditioned upon payment of such charges or fees as may be imposed generally on hotel guests. The Operator shall have the exclusive right to restrict and control access to any and all shared facilities within the Project, provided the same does not restrict an Owner's right of access to her, his or its Unit, except that Unit access, including by the Owner, shall be subject to mandatory registration at the front desk to obtain a key to the Unit, which key shall be an 882/015610-0084 _ 755505 08 a0227/07 -3 electronic key. The Operator's management obligations shall also include upkeep and repair of the interior of each Unit, and monitoring and managing repair and replacement of furniture, fixtures and equipment. For purposes of this Declaration, the tern "Four Star Quality" means that the Project offers and provides the services, facilities and amenities listed in Exhibit "B", which is attached hereto and incorporated herein by this reference. Developer, on behalf of itself and the Operator, and their respective successors and assigns, including, but not limited to, the "Project Owner" (as defined below), covenants and agrees that the Project, upon its completion, shall be operated in a Four Star Quality condition until the twentieth (20th) anniversary of the date the City issues the last certificate of occupancy for the Project (the "Operating Covenant Release Date"). No more than once per year after completion of the Project, the City may select an independent consultant (the "Performance Consultant") to perform a quality audit of the Project for purposes of determining that the Project is operating at a Four Star Quality (the "Performance Audit"). The then -owner of the Project (the "Project Owner") shall reimburse the City for the reasonable costs of the Performance Audit. City shall promptly provide the Project Owner with a copy of the Performance Audit. In the event that the Performance Audit concludes that the Project is not operating at a Four Star Quality, the Project Owner shall have a period of sixty (60) days from the date City provides the Project Owner with the Performance Audit to correct a sufficient number of the deficiencies noted therein so that the Project meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. If, at the expiration of said sixty (60) day period, a sufficient number of the deficiencies have not been corrected so that the Project still does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, the Project Owner shall pay to the City liquidated damages for each day after said sixtieth (60"') day that passes until sufficient items noted in the Performance Audit have been corrected, as determined by the Performance Consultant, in the following amounts: (i) if the Project is operating such that eighty percent (80%) or more but less than ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics are met, the Project Owner shall pay to the City the sum of Five Hundred Dollars ($500) per day (the "Less Than 95% Performance Default Amount") until the day as of which the Project meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics; or (ii) if the Project is operating such that less than eighty percent (80%) of the applicable detailed Four Star Quality characteristics are met, the Project Owner shall pay to the City the sum of One Thousand Dollars ($1,000) per day (the "Less Than 80% Performance Default Amount") until the day as of which the Project meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics; provided, however, that if on the day the Project meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics the Project does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, then the Project Owner shall be required to pay the City the Less Than 95% Performance Default Amount, pursuant to clause (i) above, for each day until the day as of which the Project meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. All of the costs and fees charged by the Performance Consultant for any follow-up inspections shall be paid by the Project Owner. LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT THE PROJECT IS NOT OPERATING AT A FOUR STAR QUALITY, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN 882/015610-0084 755505 08.02/27/07 THIS DECLARATION TO THE CONTRARY, CITY AND DEVELOPER AGREE THAT CITY WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND DEVELOPER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT CITY'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT, HAVE AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS DECLARATION, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO CITY THAT REASONABLY COULD BE ANTICIPATED, INCLUDING WITHOUT LIMITATION THE POTENTIAL LOSS OF TAX REVENUE TO THE CITY, AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT, THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF CITY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS DECLARATION TO THE CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT, THE PROJECT OWNER SHALL BE REQUIRED TO PAY TO CITY THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) AS LIQUIDATED DAMAGES AND AS CITY'S SOLE DAMAGE REMEDY FOR A DEFAULT UNDER THIS SECTION 1.2; PROVIDED, HOWEVER, THAT CITY RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER EQUITABLE REMEDY AVAILABLE TO CITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING AN ACTION FOR SPECIFIC PERFORMANCE (BUT NOT THE RIGHT TO SEEK ANY DAMAGES). CITY AND DEVELOPER SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW: CITY DEVELOPER 1.3 Limitations on Use of Condominium Hotel Units. The Condominium Hotel Units are subject to the following restriction on Owner occupancy: (i) the Owner of a Condominium Hotel Unit (no matter how many parties constitute such Owner) may occupy such Owner's Condominium Hotel Unit (a) for no more than sixty (60) days per calendar year, of which no more than thirty (30) days can be during the period of November 1 through April 30 of each such calendar year, and (b) for no more than twenty-nine (29) consecutive days; (ii) a minimum seven (7) day period shall intervene between each twenty-nine (29) consecutive day period of occupancy by the Owner; and (iii) when not being used by its Owner, each such Condominium Hotel Unit shall be available as a Project accommodation. Each Condominium Hotel Unit shall be managed by the Operator as set forth in Section 1.2 hereof. For purposes of this Section 1.3 and Section 105 below only, the term "Owner" shall mean and collectively refer to all of the persons or entities who/that own the Condominium Hotel Unit, and any of their nonpaying guests for whom they reserve the Condominium Hotel Unit. For purposes of this Declaration, the term "nonpaying guest" shall include guests whose payment for occupancy is at 882/015610-0084 _ 755505.08 a02/27/07 -5 a material discount not generally available to members of the public. Any nonpaying guest of the Owner shall pay transient occupancy tax (as that term is used in La Quinta Municipal Code Chapter 3.24) (hereinafter, "TOT") on the rental amount paid (if any) by such guest to occupy the Condominium Hotel Unit. 1.4 Use by Hotel Guests. Any person or entity who pays to occupy a Condominium Hotel Unit (a "Hotel Guest") shall not occupy or have the right to occupy such Condominium Hotel Unit for more than twenty-nine (29) consecutive days. On or before the twenty-ninth (291h) day, the Hotel Guest shall check out of and vacate such Condominium Hotel Unit. All Hotel Guests shall pay, and the Operator shall collect and remit to the City, TOT on the rental amount paid by such Hotel Guest to occupy the Condominium Hotel Unit. 1.5 Excess Use Payments. The Operator shall be responsible to monitor the usage of each Condominium Hotel Unit by the Owner thereof in order to fulfill its collection responsibilities hereunder. If any Owner or Hotel Guest occupies a Condominium Hotel Unit beyond the time periods permitted in Sections 1.3 and 1.4 (as applicable), then such Owner or Hotel Guest shall pay to the Operator at check-out, and the Operator shall collect from such Owner or Hotel Guest at check-out, for remittance to the City, the following daily amount for each such day during the "First Operative Year" and "Second Operative Year" (as those terms are defined in Section 2.2 below) that the Owner's or Hotel Guest's occupancy exceeds the permitted number of days: (i) Twenty Dollars ($20) per day for studio Condominium Hotel Units and one -bedroom Condominium Hotel Units; and (ii) Thirty -Five Dollars ($35) per day for two -bedroom Condominium Hotel Units and for presidential villas (the "Excess Use Payment"). Each Excess Use Payment after the First Operative Year and Second Operative Year shall be increased annually, on each February 1 during the term of this Declaration, by the increase (if any) in the "ADR Index" (as that term is defined below) during the prior Operative Year; provided, however, that if the first sale or transfer by Developer of a Condominium Hotel Unit in the Project (the "First CHU Sale") occurs on or after July 1, then for the subsequent "Operative Year" (as that term is defined in Section 2.2 below) only, each Excess Use Payment shall not increase by the ADR Index [For all Declarations after the first Declaration that includes a Condominium Hotel Unit, the amount of the Excess Use Payment shall be revised to reflect the then -current Excess Use Payment, such that all Condominium Hotel Units in the Project and in the adjacent hotel/resort developments are subject to the same Excess Use Payment, and the Excess Use Payment amounts are subject to adjustments at the same time, regardless of when such Condominium Hotel Units are developed or sold]. In all instances in which the February 1 adjustment is referred to in this Declaration, it shall be deemed effective as of the prior January 1". For purposes of this Declaration, the "ADR Index" shall mean the average increase in the average daily room rate for the Miramonte Resort & Spa, La Quinta Resort & Club, the Hyatt Grand Champions, Renaissance Esmeralda, and the Project, as determined and published in the STR Report, published by Smith Travel & Research or, if the STR Report is no longer published, in an equivalent statistical report that analyzes the percentage increase in average daily room rates at the foregoing hotels and resorts. Notwithstanding anything in this Declaration to the contrary, if the ADR Index decreases during the prior Operative Year, such decrease shall not result in a decrease in any of the payments required hereunder. Instead, the ADR shall be deemed not to have changed since the prior year. 882/015610-0084 755505 08 a02/27/07 1.6 Recordation of Covenants Conditions and Restrictions. Prior to, and as a condition of, the City's issuance of any temporary or permanent certificate of occupancy for the Project, the Developer shall submit to the City, obtain approval thereof, and record, covenants, conditions and restrictions against the Property which (i) shall provide for establishment of homeowner's association for the Project (the "Association"); (ii) shall provide for the Association's collection of and payment to the City of the amounts described in Section 2 below; (iii) is necessary to create a condominium regime for the condominiums described on the Condominium Plan to be recorded in accordance with all applicable laws; (iv) clearly sets forth the maintenance obligations of the owners of the Condominium Hotel Units; and (v) includes a disclosure regarding the public ownership and control of the existing golf course and any future golf course that may be developed in the "SilverRock Resort Area" (as that term is defined below) and a statement that Developer does not and cannot guarantee that the City will not make changes to such golf course(s) or change the use of the underlying real property (the "CC&Rs"). The CC&Rs shall provide that the City is a third party beneficiary thereof with the right, but not the obligation, to enforce the terms thereof which are set forth in this Section 1.6, and shall require the written approval of the City prior to any amendments thereto to the provisions thereof which are set forth in this Section 1.6. For purposes of this Declaration, the term "SilverRock Resort Area" shall mean and refer to the real property included in and covered by the SilverRock Resort Specific Plan, also known as Specific Plan 06-08, as amended by Resolution 2006-083, which was duly adopted by the La Quinta City Council on July 18, 2006. 1.7 Reporting Requirements. During the term of this Declaration, within thirty (30) days after the end of each calendar quarter (i.e., by each April 30, July 30, October 30, and January 30), the Association and the Operator shall be jointly, severally, and collectively responsible to provide to City a report that contains all of the following information on each Condominium Hotel Unit for such calendar quarter: (a) the number of said Unit; (b) the name, address, and phone number of the Owner of such Unit; (c) the dates the Unit was occupied by persons other than the Owner of the Unit; (d) the dates the Unit was occupied by the Owner; (e) the name and address of any Hotel Guests (other than the Owner) whose occupancy exceeded the timeframes set forth in Section 1.4 above; (f) the identity of the rental agent for said Unit (if not the Operator); and (g) the TOT that has been collected by the Operator and remitted to the City for use of said Unit during such calendar quarter (each, a "Quarterly Report"). 2. Resort Payments. 2.1 Annual Resort Payment Due Date. During the term of this Declaration, and pursuant to the provisions of Section 2.2 and Section 2.3 below, the Association shall collect annual resort payments on each February 28`h following the first to occur of the following (with each such February 28 referred to hereinafter as an "Annual Resort Payment Due Date") (a) the first Condominium Hotel Unit in the Project (i) receives a certificate of occupancy, and (ii) has been sold to a third party, as evidenced by the close of escrow for such Condominium Hotel Unit; or (b)(i) the first condominium unit in which a Fractional Unit is located receives a certificate of occupancy [for Fractional Units which are condominiums] or the first Fractional Unit receives a certificate of Occupancy [for Fractional Units which are not condominiums], and (ii) such Fractional Unit has been sold to a third party, as evidenced by the close of escrow for the Fractional Unit, or has otherwise been transferred to DHR or another management entity for use in a timeshare or residence club program. 882/015610-0084 _ 755505 08 a0227/07 _7 2.1 Condominium Hotel Units. During the term of this Declaration, for each Condominium Hotel Unit that has been sold to a third party, as evidenced by the close of escrow for such Condominium Hotel Unit having occurred on or before each Annual Resort Payment Due Date, the Association shall (A) provide to the City a report that contains all of the information contained in a Quarterly Report (as described in Section 1.7 above) for the immediately preceding calendar year (the "Annual Report"); and (B) collect from the Owner of each such Condominium Hotel Unit, and remit to the City an annual resort payment (each, a "CHU Annual Resort Payment") covering the "Operative Year" (as that term is defined below) or partial Operative Year occurring immediately preceding the Annual Resort Payment Due Date. For purposes of this Declaration, the term "Operative Year" shall mean each January 1 through December 31 period during the term of this Declaration. CHU Annual Resort Payments shall be prorated for any partial ownership calendar year based on the time period during which each such Unit was owned by the Owner, with any amounts allocated in a particular Operative Year to a prior Owner collected by the Association from such prior Owner and remitted to the City pursuant to Section 2.5 below. If the date of the First CHU Sale (the "First CHU Sale Date") occurs before July 1 of a given calendar year, then the then -current calendar year shall be deemed to be the first Operative Year (the "First Operative Year"). If the First CHU Sale Date is after July 1 of a given calendar year, then the "First Operative Year" shall be deemed to be the next -succeeding calendar year, and for the time period between the First CHU Sale Date and the commencement of the First Operative Year, the CHU Annual Resort Payment will be prorated on a per month basis at the rate applicable to the First Operative Year. The CHU Annual Resort Payment for studio Condominium Hotel Units and for one -bedroom Condominium Hotel Units shall be One Thousand Two Hundred Dollars ($1,200) per year for the First Operative Year and for the second Operative Year (the "Second Operative Year"). For the third Operative Year (the "Third Operative Year"), the CHU Annual Resort Payment amount for studio Condominium Hotel Units and for one -bedroom Condominium Hotel Units shall be One Thousand Eight Hundred Dollars ($1,800), which amount shall be increased, on each February 1 following the Third Operative Year, by the increase, if any, of the ADR Index during the prior Operative Year [which increase shall be deemed effective as of the prior January I"]. The CHU Annual Resort Payment for two -bedroom Condominium Hotel Units and for the presidential villas shall be One Thousand Eight Hundred Dollars ($1,800) for the First Operative Year and the Second Operative Year. For the Third Operative Year, the CHU Annual Resort Payment amount for such Units shall be Two Thousand Four Hundred Dollars ($2,400), which amount shall be increased, on each February 1 after the Third Operative Year, by the increase, if any, of the ADR Index during the prior Operative Year [which increase shall be deemed effective as of the prior January 1st]. Notwithstanding anything herein to the contrary, to the extent the Annual Report indicates that the City has actually received TOT revenues collected by the Operator or by the Owner or the Owner's rental agent, generated from the occupancy of a Condominium Hotel Unit during such Operative Year, the TOT revenues collected and remitted to the City for said Unit shall be credited against the CHU Annual Resort Payment owed by such Unit, and the amount owed shall be reduced by the same amount. For example, if in the First Operative Year the amount of One Thousand One Hundred Fifty Dollars ($1,050) has been paid to the City as TOT based on transient occupancy of a studio Condominium Hotel Unit, the Association shall collect from the Owner of said Unit and remit to the City only the sum of One Hundred Fifty Dollars ($150). 882/015610-0084 _ 755505 08.02/27/07 -8 In the event a CHU Annual Resort Payment is remitted to the City for a Condominium Hotel Unit for which the City has received TOT from a source other than the Operator and for which the Operator did not account in transmitting to City such CHU Annual Resort Payment, the City shall provide a refund to the Owner of said Unit in the amount of the TOT collected for such Unit up to but not in excess of the CHU Annual Resort Payment paid by or on behalf of such Owner on account of such Owner's Condominium Hotel Unit. Notwithstanding anything herein to the contrary, if a Condominium Hotel Unit has not yet been sold to a third party, and Developer or the Operator permits occupancy in such Unit, Developer or the Operator shall pay to the City TOT revenues on such usage. In the event such usage is permitted free of charge or at a reduced rate, the TOT to be paid to the City shall be determined based on the market rate which would be paid by an unrelated third party walk-in guest for an equivalent room during the same time period. 2.2 Fractional Units. During the term of this Declaration, for each Fractional Unit (i) that has received a certificate of occupancy [for Fractional Units which are not condominiums] or for which the condominium unit located therein has received a certificate of occupancy [for Fractional Units which are condominiums], and (ii) that has been sold to a third party, as evidenced by the close of escrow for the Fractional Unit, or has otherwise been transferred to DHR or another management entity for use in a timeshare or residence club program, on or before the Annual Resort Payment Due Date, the Association shall collect from the Owner(s) of each such Fractional Unit and remit to the City an annual resort Payment (each, a "Fractional Unit Annual Resort Payment") covering the prior Operative Year. Fractional Unit Annual Resort Payments shall be prorated for any partial ownership calendar year based on the time period during which each such Fractional Unit was owned by an Owner with any amounts allocated in a particular Operative Year to a prior Owner collected by the Association from such prior Owner and remitted to the City pursuant to Section 2.5 below. The Fractional Unit Annual Resort Payment for Fractional Units containing up to six hundred square feet (600 sf) shall be Four Thousand Three Hundred Eighty Dollars ($4,380); the Fractional Unit Annual Resort Payment for Fractional Units containing between six hundred one square feet (601 sf) and nine hundred fifty square feet (950 sf), shall be Five Thousand Four Hundred Seventy -Five Dollars ($5,475); the Fractional Unit Annual Resort Payment for Fractional Units containing between nine hundred fifty-one square feet (951 sf) and one thousand six hundred square feet (1,600 sf), shall be Six Thousand Five Hundred Seventy Dollars ($6,570); the Fractional Unit Annual Resort Payment for Fractional Units containing between one thousand six hundred one square feet (1,601 sf) and two thousand five hundred square feet (2,500 sf), shall be Seven Thousand Three Hundred Dollars ($7,300); and the Fractional Unit Annual Resort Payment for Fractional Units containing more than two thousand five hundred square feet (2,500 sf), shall be Eight Thousand Thirty Dollars ($8,030). The amount of each Fractional Unit Annual Resort Payment shall increase annually, on each February 1 commencing with the earlier of (a) the February 1 of the calendar year immediately following the calendar year in which the first sale of a Fractional Unit (the "First Fractional Unit Sale Date") occurs, or (b) February 1, 2012, by the increase (if any) in the ADR Index during the prior Operative Year; provided, however, that if the First Fractional Unit Sale Date is on or after July 1, then for the subsequent year only, the Fractional Unit Annual Resort Payments shall not increase by the increase (if any) in the ADR Index. Each Fractional Unit Annual Resort Payment shall be divided equally among each of the 882/015610-0084 755505 08 a02/27/07 -9- Owners of a particular Fractional Unit, and each such Owner shall be responsible for the portion of the Fractional Unit Annual Resort Payment allocated to such Owner's fractional interest. [NOTE Regarding Section 2: For all Declarations after the first Declaration, (i) the CHU Annual Resort Payment amounts shall be revised to reflect the then -current CHU Annual Resort Payment, such that all Condominium Hotel Units in the Project and in the adjacent hotel/resort developments are subject to the same schedule of CHU Annual Resort Payment amounts, and the CHU Annual Resort Payment amounts are subject to adjustment at the same time, regardless of when such Condominium Hotel Units are developed or sold; and (ii) the Fractional Unit Annual Resort Payment amounts shall be revised to reflect the then -current Fractional Unit Annual Resort Payment amounts, such that all Fractional Units in the Project and in the adjacent hotel/resort developments are subject to the same schedule of Fractional Unit Annual Resort Payment amounts, and the Fractional Unit Annual Resort Payment amounts are subject to adjustment at the same time, regardless of when such Fractional Units are developed or sold.] 2.3 Late Payments. If an Owner fails to pay to the Association for remittance to the City any CHU Annual Resort Payment or Fractional Unit Annual Resort Payment required to be collected and remitted to the City hereunder within the time required, or an Owner fails to pay to the Operator for remittance to the City any Excess Use Payment required to be collected and remitted to the City hereunder within the time required, the Owner shall pay to the Association or Operator (as applicable) and the Association or Operator (as applicable) shall remit to the City a penalty of ten percent (10%) of the applicable payment or late portion of the applicable payment, in addition to the applicable payment or late portion of the applicable payment, plus interest at the rate of one-half of one percent (.05%) per month, or fraction thereof, from the date on which the applicable payment or late portion of the applicable payment required to be collected and remitted to the City becomes delinquent until the date of remittance to the City. If the Owner fails to pay any penalty imposed under this Section 2.4 within ten (10) days after receipt of notice thereof, the Owner shall pay interest thereon at the rate of one-half of one percent (.05%) per month, or fraction thereof from the date on which the penalty becomes due and payable to the City until the date of remittance to the City. In the event any CHU Annual Resort Payment, Fractional Unit Annual Resort Payment, or Excess Use Payment required to be paid and remitted to the City hereunder has been paid by the Owner to the Association or Operator (as applicable) for remittance to the City within the.time required and the Association or Operator fails to remit to the City the same, the Association or Operator (as applicable) shall be responsible for any and all late payments set forth in this Section 2.4. 2.4 Sale of a Unit. Prior to the sale of any Unit by the Owner thereof, the Association shall collect from said Owner and remit to the City the Fractional Unit Annual Resort Payment or the Condominium Hotel Unit Annual Resort Payment (as applicable) for said Unit that will be due and payable by the Owner on the Annual Resort Payment Due Date, based on the period of such Owner's ownership. 3. Term. This Declaration shall become effective on the date on which it is recorded with the Riverside County Recorder's Office and shall continue in full force until the earlier to occur of (i) the date on which the City permanently revokes the certificate of occupancy for one or more Units or for the Project; provided, however, that in such event this Declaration shall cease to 88 M5610-0084 _10_ 755505 08 a02/27/07 be effective only as to the Unit(s) or portions of the Project for which the certificate of occupancy has been revoked, and all other Units and portions of the Project shall continue to remain subject to this Declaration; or (ii) termination of this Declaration by written agreement of Developer (or its successor or assign, as applicable) and the City. Notwithstanding the date on which this Declaration becomes effective, Condominium Hotel Unit Annual Resort Payments and Fractional Unit Annual Resort Payments shall only be payable commencing on the dates provided in Sections 2.1, 2.2, and 2.3 above. 4. Covenants Running With the Land. Developer declares that the Property and all of the Units shall be held, conveyed, hypothecated, encumbered, leased, rented, used, and occupied subject to the provisions of this Declaration, all of which are declared to be in furtherance of and for the protection of and maintenance and improvement of the Units and to comply with the conditions. Pursuant to applicable law, including, but not limited to, Section 1462, 1465 and 1468 of the Civil Code of the State of California, all provisions of this Declaration (i) are hereby imposed as equitable servitudes on each of the Units for the benefit of Developer and Operator and their successors and assigns and the City, and (ii) shall run with the land and be binding upon and inure to the benefit of the Benefited Public Property and each of the Units and each and every portion thereof or interest therein, and all parties having or acquiring any right, title, or interest in the Units or any portion thereof, and their successors and assigns. 5. Assessment Appeals. Developer agrees on behalf of itself, and on behalf of all persons or entities that may own an interest in the Property or in the Units in the future, that during the term of this Declaration no action shall be taken to challenge, cancel, reduce, or otherwise negate the CHU Annual Resort Payments and Fractional Unit Annual Resort Payments required to be made to the City pursuant to the terms of this Declaration. 6. Default; Remedies; Dispute Resolution. 6.1 Notice of Default. In the event of failure by Developer or Developer's successors in interest, the Operator, Association, or the Owners of Units substantially to perform any material term or provision of this Declaration, the City shall have those rights and remedies provided herein, provided that the City has first provided to the defaulting party a written notice of default in the manner required by Section 7.1 hereof identifying with specificity the nature of the alleged default and the manner in which said default may satisfactorily be cured. 6.2 Cure of Default. Upon the receipt of the notice of default, the defaulting party shall promptly commence to cure, correct, or remedy the identified default at the earliest reasonable time after receipt of the notice of default and shall complete the cure, correction or remedy of such default not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the notice of default, or, for such non -monetary defaults that cannot reasonably be cured, corrected or remedied within thirty (30) days, the defaulting party shall commence to cure, correct, or remedy such default within such thirty (30) day period, and shall continuously and diligently prosecute such cure, correction or remedy to completion. 6.3 City Remedies. In the event of an uncured default by Developer, its successors in interest, the Operator, Association, or the Owners of the Units of the terms of this Declaration, the City, at its option, may institute legal action in law or in equity to cure, correct, '821015610-0084 -11- 755505M a02/27/07 or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Declaration; provided, however, that in no event shall City be entitled to consequential damages for any Developer default. Miscellaneous. 7.1 Notices. Any notices, demands or other communications required or permitted to be given by any provision of this Declaration or which any party may desire to give the other shall be given in writing, delivered personally or sent by certified mail, postage prepaid, facsimile, or by a reputable delivery service which provides a receipt with the time and date of delivery, addressed to a party, at the addresses set forth below, or to such other address as said party may hereafter or from time to time designate by written notice to the other party. To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With copies to: Manatt, Phelps & Phillips, LLP It 355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem 982/015610-0084 -12- 755505.08 a02/27/07 and Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Notice given by United States Postal Service or delivery service as provided herein shall be considered given on the earlier of the date on which said notice is actually received by the party to whom such notice is addressed, or as of the date of delivery, whether accepted or refused, established by the United States Postal Service return receipt or such overnight carrier's receipt of delivery, as the case may be. Any such notice not so given shall be deemed given upon receipt of the same by the party to which it is addressed. 7.2 Force Majeure. In addition to specific provisions of this Declaration, performance by either party hereunder shall not be deemed to be in default where delays or failures to perform are due to war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes, governmental restrictions imposed or mandated by other governmental entities, governmental restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another party, acts or the failure to act of any public or governmental agency or entity (except that acts or the failure to act of the City or the Agency shall not excuse performance by the City) or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause, if notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Declaration may also be extended in writing by the City and the Developer. Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section 7.2 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable construction or permanent financing for the development or operation of the Project, or because of economic or market conditions. 7.3 Books and Records. Upon not less than ten (10) days written notice to Developer (or its successor or assigns), Developer shall make available to City for inspection and copying the books and records of Developer pertaining to the Project which are relevant to an audit by the City of Developer or its successor in interest's compliance with the terms of this Declaration. 7.4 Developer's Limitation on Damages. Developer covenants on behalf of itself and its successors and assigns, including the owners of the Units, not to sue the City for 882/015610-0084 -13- 755505 08 a02J27/07 damages or monetary relief for any claim arising out of or connected with any dispute, controversy, or issue between Developer and City regarding this Declaration or any of the matters referred to herein including but not limited to any of the payments required to be made hereunder. 7.5 Mortgagee Protection. No portion of this Declaration or any amendment or violation thereof shall operate to defeat or render invalid, in whole or in part, the rights of the beneficiary, insurer, guarantor, or holder of any mortgage or deed of trust encumbering any portion of the Property; provided that, after foreclosure of any such mortgage or deed of trust, the property foreclosed shall remain subject to this Declaration. 7.6 Governing Law. This Declaration shall be governed by the internal laws of the State of California, without regard to conflict of law principles. 7.7 Interpretation; Incorporation. This Declaration shall be interpreted to give each of the provisions their plain meaning. The Recitals and the exhibits attached hereto are incorporated into the Declaration. 7.8 Language Construction. Designations used herein are for convenience only and shall not be controlling in the interpretation of this Declaration. 7.9 Amendment. This Declaration may only be amended pursuant to a written amendment, executed by Developer (or its successor or assign) and City, and recorded in the Office of the Recorder of Riverside County, California. 7.10 Counterparts. The parties may execute this Declaration in counterparts. Each counterpart shall be deemed an original instrument as against any parry who has signed it. 7.11 Successors and Assigns. All of the terms, covenants and conditions of this Declaration shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Declaration, such term shall include any other permitted successors and assigns as herein provided. 7.12 No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Declaration to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Declaration. 7.13 Severability. If any term, provision, condition or covenant of this Declaration or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Declaration, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 7.14 Time of Essence. Time is expressly made of the essence with respect to the performance by the City and the Developer of each and every obligation and condition of this Declaration. 882/015610-0084 -14- 755505 08 a02/27/07 7.15 Non -Liability of Officials and Emnlo�ees of the City. No member, official or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Declaration. 7.16 Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Declaration, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. [signatures on next page] 882/015610-0084 -15- 755505.08.02/27/07 IN WITNESS WHEREOF, City and Developer have executed this Declaration as of the date written above. ATTEST: City Clerk APPROVED AS TO FORM RUTAN & TUCKER, LLP City Attorney "CITY" CITY OF LA QUINTA, a California municipal corporation City Manager "DEVELOPER" "LDD" LDD SILVERROCK, LLC, a Delaware limited liability company IC Its: 882/015610-0084 -16- 755505 08 a02/27/07 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0084 _17_ 755505 08 a0227/07 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached] 882/015610-0084 EXHIBIT A 755%5 08 a0227/07 EXHIBIT B FOUR STAR QUALITY REQUIREMENTS Four -Star Oualitv under this Declaration indicates an outstanding hotel providing the guest with a luxury experience in a distinctive setting, including expanded amenities and exceptional service. Guests can expect an exceptional experience, where no less than ninety five (95) percent of the following detailed characteristics are consistently met or exceeded. Except as provided in the following two paragraphs, the detailed characteristics list below applies in its entirety to all components in the Project, including, without limitation, all of the Units and all other facilities and amenities (including the spa, fitness facility, restaurants, etc.) to be developed on the Property. Certain of the detailed characteristics shall not apply to Condominium Hotel Units or Fractional Units located in casita buildings, and such characteristics are preceded by an asterisk (*). Subject to the immediately following paragraph, Condominium Hotel Units and Fractional Units in casita buildings shall be required to comply with all of the detailed characteristics other than those characteristics preceded by an asterisk. Certain of the detailed characteristics shall not apply to Fractional Units, and such characteristics are preceded by a double asterisk (**). Fractional Units shall be required to comply with all of the detailed characteristics other than those characteristics preceded by a single or double asterisk. Services Detail • Staff is well-groomed with professional, neat and well -maintained attire. • All staff encountered are pleasant and professional in their demeanor. • Front desk staff are articulate, smile and make eye contact. • (**)The front desk is staffed twenty-four hours. • (**)Restaurant on -site serving three meals daily. • Valet parking is available. • Baggage assistance is automatic. • (*)Complimentary newspapers are delivered to room automatically. • (**)Complete room service is available. (**)Workstation is available where guest can access Internet. (**)Basic fitness equipment is provided, including treadmills and cycles. EXHIBIT B 682/015610-0084 Page 1 of 7 755505 08.02/27/07 g • Written confirmation is automatic or offered, either by mail, fax or e-mail. • Guests name is used effectively, but discreetly, as a signal of recognition. • The time from arriving at the reception area until registration is complete does not exceed five minutes (includes queuing). • Bed is plush and inviting with oversized or numerous pillows. • Bedcovers are elegant and stylish and with linens of exceptional quality and comfort. • All written information is provided on good quality paper or pads, custom -printed or logoed. • Bathroom presentation and placement of amenities and linens is thoughtful, careful, and elegant. • (*)Fresh ice is provided during evening service or at another time during the day. • (**)Turndown service is automatically provided. • (**)During turndown service, guest clothing is neatly handled and guest toiletries are neatly arranged and displayed on a cloth or shelf. • (**)Room service is delivered within 30 minutes. • Room service order is delivered within five minutes of quoted time. • (*)Two hour pressing available • (*)Same day laundry and dry cleaning is available seven days/week. • Wake-up call is personalized with guest's name and time of day. • Wake-up call is delivered within two minutes of requested time. • (**)Special service desk identified as concierge/guest service is situated apart from reception/front desk. • If spa services are present, treatments are begun and ended on schedule, within five minutes of expected or booked time. • If spa services are present, during treatment, therapist appears to be genuinely expert, moving seamlessly through the treatment as described and expected. Facilities Details • Self parking area is free of debris, good condition; surfaces, curbs, paths. • All outdoor walkways and approaches are well -maintained and cleaned. • Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition. EXHIBIT B 892/015610-0084 Page 2 of 7 755505.08 a0227/07 g • Public spaces are free of obvious hazards. • Elevator landings, cars and doors/tracks are clean and in good condition. • Guest room corridor floors, walls and ceilings are free of debris, marks, and damage. • All furniture, fixtures and equipment are clean, neat and well -maintained. • Ashtrays throughout public areas are well -maintained and free of excessive debris. • Temperature in all interior public areas are maintained in general comfort range. • Public washrooms very hygienic and neat, with well -stocked paper and soap. • Public washroom fixtures, walls and floors are in very good condition. • Meeting rooms are well -signed so that it is easy to find and arrive at a specific room. • Meeting room doors are in good condition, free of nicks and damage. • Meeting room interiors are in generally good condition, including walls, floors and ceiling. • Lobby provides a comfortable seating area. • Lobby floors, walls and ceiling are free of debris, marks and damage. • Lobby areas feature elegant live plants and/or fresh floral displays. • Notices are professional, matching decor, not "homemade". • (*)Vending and/or ice machines are located on each guest floor. • (**)Vending and/or ice areas and equipment are clean, well -lit, and well -maintained. Service doors are clean, free of marks and damage, and closed. • (**)A variety of different sized and appointed rooms available in hotel. • (**)High quality, varied, and major brand sundry selections are available in an on -site store. • (**)Suite (separate bedroom and living areas) accommodations are available. • (**)A dedicated and secure luggage storage area is available. • Public phones are convenient, and equipped with seats, privacy panels and pad/pens. • Public washrooms are furnished with upgraded materials and appointments/luxurious design. • Televisions feature premium cable TV (two movie channels, two all -news, two financial). EXHIBIT B 892/015610-0084 Page 3 of 7 755505 08 a0227/07 g • Pay -Movie selections are available through television. • (*)Guest room telephones have two lines. • Guest rooms equipped with data ports (guest can connect laptop to the Internet). • Direct dial phones with direct long distance dialing are available in each guest room. • If public phonebook present, it is displayed in attractive cover. Guest Room Detail • Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good condition. • Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc. • Walls and ceilings are free of marks, stains and damage. • Drapes are free of stains, damage; pull easily and hang properly. • Furniture is free of dust, marks and damage. • All printed material including collateral, phonebooks and stationery are neat, crisp and current. • Drawers and shelves are clean, free of dust and debris. • All light bulbs operate; all light fixtures and lamps are in good condition, clean. • Mirrors and windows are free of smudges and damage throughout. • If safe is provided, it is clean, functional and convenient. • Room equipped with accurate, functional clock and radio/stereo. • Color television works and is equipped with remote control, and is minimum 19". • All bedding and linens are free of debris, hairs, damage and stains. • Room heating and air conditioning is easily controlled by guest and is quiet. • Air is fresh and clean, no stuffiness or odors. • Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration. • Bathroom tile and grouting is clean, not discolored, cracked or mildewed. • Faucets and drains operate smoothly and easily. • Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath towel. EXHIBIT B 882/01561M084 Page 4 of 7 755505.08 a02/27/07 g • If robes are provided, they are free of spots, stains and loose threads. • Guest room door and frame free of marks, scratches and scuffs. • (*)Comfortable seating for two people (other than bed) (exemption only applies to Units in Lock -Off suites specifically designed as smaller sleeping quarters; otherwise this item is required in all accommodations designed as single hotel rooms and hotel room Lock - Off Units). • Guest service directory, pad and pen/pencil present and conveniently placed. • Enclosed closets (means closets must have doors). • There are three spacious drawers or enclosed shelves (inside closet). • A Luggage rack or bench provided; and adequate space to leave suitcase. • Extra clean and hygienic blanket and pillow provided in room. • Lighting throughout the room is adequate. • The room can be fully darkened. • (**)Full-length mirror present in room. • A hairdryer present in room, clean and functional. • (**)Each guest room has two phones (one could be in the bathroom). • Comfortable desk and chair are available for working, complete with telephone, data port, and light. • Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are present in room. • (**)Minibar is present (defined as selection of several beverages and snacks). It is non auto -charge, and premium products are attractively displayed. • (**)Minibar is hygienic, free of spills and damage, all products are sealed, price list present. • If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available. • Pillows are plush and full, no foam. • Framed artwork or interesting architectural features exist in room. • Excellent lighting is provided in bathroom for makeup and shaving. • Hygienic soap, shampoo and four other bath amenities are provided. Amenities are presented attractively, thoughtfully (not simply lined up on counter). EXHIBIT B 882/015610-0084 Page 5 of 7 755505 08 a02/27/07 g • Towels are of absorbent quality, with soft nap and no discoloration. • Towels are free of spots, stains, tears and obvious frays. • Guest room is of generous size, and provides ample seating for more than two persons. (* *)Selection of at least 10 hangers including a variety of bars, clips and padded. • (**)In -room safe is present. • Bed is triple sheeted or features washable duvets. • (*)Live plants are present in guest rooms. • Shaving/makeup, lighted magnifying mirror is present. Specialized Facility Detail • Pool/beach furniture is clean, hygienic and well -maintained. • Pool deck or beach/sand is clean and free of excessive debris. • Pool deck and tiling are in good condition, free of excessive damage or wear. • Pool water is clean, free of debris and free of notable odors. • Pool fittings and equipment (ladders, dive boards) are secure and in good condition. • If tennis exists on site under same management, court surfaces are in good condition, free of damage and well -marked. • Tennis courts and surrounding areas are clean and free of debris. • Fixtures, nets, lights, fences are well -maintained and good condition. • If golf exists on site under same management, pro shop/clubhouse interior are clean and well -maintained; displays and counters neat and tidy. • Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance. • Golf carts are clean, well -organized and maintained. • Rental equipment is clean and good condition, including bags. • (**)Guest can pick up e-mail and access the Internet from a Business Center workstation. • (**)Business Center working areas are clean, tidy and professional. • (**)Comfortable office -style chairs at the Business Center guest workstations. • All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained. • (**)Spa reception area is well-defined, neat and professional. EXHIBIT B 882/015610-0084 Page 6 of 7 755505 08 a02/27/07 g • Fitness equipment is clean, in very good condition, conveniently laid out. • Fitness/workout area is well -ventilated, with comfortable temperature. • Fitness equipment is available with personal headphones/televisions. • Sound system or television provided in fitness/workout areas. • Towels are provided in locker and fitness areas. • Grooming area equipped with hairdryers; soap and shampoo conveniently placed. • All amenities are neatly and professionally presented; very hygienic. • Locker room, showers, sauna and hot tub extremely clean, hygienic appearance. • If Business Center is present, a semi -private working area with workstation and telephone is available for guests. • If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes, and they are clean and in good condition. • If spa or fitness center exists on site, complimentary amenities to include body lotion, shower caps, talc/deodorant and combs. • If spa exists on site, at least two types of massage and either body treatments or facials are also offered. • If tennis is available on site, water is available courtside. • If pool or beach service is present, ample towels are available poolside or at the beach. • Current newspapers and national -title magazines are provided in fitness and locker areas. • If spa, treatment rooms are equipped with individually controlled temperature and sound systems. EXHIBIT B 882/015610-0084 Page 7 of 7 755505 08 a02/27/07 g EXHIBIT "C" LEGAL DESCRIPTION OF BENEFITED PUBLIC PROPERTY [To be inserted] 8821015610-0084 EXHIBIT C 755505 08 a02/27/07 EXHIBIT "F" LIST OF PRE -APPROVED OPERATORS 1. Tishman Hotel Corporation 2. Rosewood Hotels and Resorts, LLC 3. Gemstone Resorts International, LLC 4. Noble House Hotels and Resorts 5. Intercontinental Hotels Group 6. Marriott International, Inc. 7. Starwood Hotels and Resorts Worldwide, Inc. 8. Global Hyatt Corporation 9. Fairmont Raffles Holdings 10. Four Seasons Hotels, Inc. 11. Loews Corporation 12. West Paces Hotel Group 13. Mandarin Oriental Hotel Group 14. The Hong Kong and Shanghai Hotels 15. Vail Resorts, Inc. 16. Hilton Hotels Corporation 17, Ritz Carlton Hotel Company, LLC 18. Kimpton Hotel and Restaurant Group, LLC 882/015610-0084 EXHIBIT F 750537 12 a02/26/07 EXHIBIT "G" FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT [See following document] 882/015610-0084 EXHIBIT G 750537 12 a02J26/07 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 Attn: Timi Anyon Hallem, Esq. ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT This Assignment and Assumption of Development Agreement (this "Assignment") is executed by LDD SILVER ROCK, LLC, a Delaware limited liability company ("Owner"), in favor of a ("Assignee") as of the day of , 200_, with reference to the following facts: A. Owner and the City of La Quinta, California, a California municipal corporation and charter city organized and existing under the laws of the State of California, have entered into that certain Development Agreement dated as of recorded as Document No. in Official Records, County of Riverside, California (the "DA"). B. Owner now desires to assign and transfer to Assignee, and Assignee desires to accept from Owner all of Owner's rights and obligations in, under and to the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto. THEREFORE, Owner and Assignee agree as follows: 1. Assignment. Owner hereby assigns and transfers to Assignee all of Owner's rights in, under and to the DA and all of Owner's obligations arising under the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 2. Acceptance and Assumption. Assignee hereby accepts from Owner all of Owner's rights in, under and to the DA and agrees to assume all of Owner's obligations arising under the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 3. Further Assurances. Each party hereto hereby agrees to execute any additional documents, and take any further actions necessary to effect or evidence the assignment and assumption set forth in Sections 1 and 2 above. 4. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 41082383 1 5. Miscellaneous. This Assignment shall be binding on and inure to the benefit of the parties and their respective successors and assigns. The paragraph headings of this Assignment are for convenient reference only and shall not be used in interpreting this Assignment. 6. California Law. This Assignment shall be governed by and interpreted in accordance with the internal laws of the State of California, without regard to conflict of law principles. 7. Costs of Dispute Resolution. In the event of any action or proceeding brought by any party against any other parties under this Assignment, the prevailing parties shall be entitled to recover from the non -prevailing parties all costs and expenses, including attorneys' and experts' fees and expenses, in such action and proceeding in such amount as the court may adjudge reasonable. The prevailing parties shall be determined by the court based upon an assessment of which party's major arguments made or positions taken in the proceedings could fairly be said to have prevailed over the other parties' major arguments or positions on major disputed issues. [SIGNATURES INCLUDED ON FOLLOWING PAGE] 410923931 IN WITNESS WHEREOF, Owner and Assignee have executed this Assignment as of the date and year first above written. "OWNER" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: "ASSIGNEE" a By: Its: 41082383 1 STATE OF CALIFORNIA ss. COUNTY OF ) On _, 20_, before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 in and for said County and State (SEAL) STATE OF CALIFORNIA ss. COUNTY OF ) On _, 20_, before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 in and for said County and State (SEAL) 41082383 1 Exhibit A Legal Description of Real Property Affected by Assignment and Assumption [See Attached] Exhibit A 410823831 AGENCY CONSENT TO RECORDATION THE LA QUINTA REDEVELOPMENT AGENCY HEREBY CONSENTS TO THE RECORDATION OF THE FOREGOING DEVELOPMENT AGREEMENT AGAINST THE REAL PROPERTY DESCRIBED IN EXHIBIT "A" TO SAID DEVELOPMENT AGREEMENT. LA QUINTA REDEVELOPMENT AGENCY 0 Its: STATE OF CALIFORNIA ) ss COUNTY OF ) On , before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610.0084 750537 12 a02/26/07 ATTACHMENT NO.7 FORM OF OPTION AGREEMENT [See following Documents] 882M 15610-0084 737414 08 a02f26/07 FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV CODE § 27383) OPTION AGREEMENT (Boutique Hotel Parcel/Resort Hotel Parcel) NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS OPTION AGREEMENT ("Option Agreement") is made this _ day of , (the "Effective Date"), by and between LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS A. Developer has entered into a Disposition and Development Agreement dated December 19, 2006 with the Agency (the "DDA"), pursuant to which Agency conveyed to Developer that certain real property located at the southwest intersection of Avenue 52 and Jefferson Street, in the City of La Quinta, County of Riverside, State of California (the "Site"). All defined terms used herein shall have the same meaning as set forth in the DDA unless otherwise stated. The Site is legally described in Exhibit "A," which is attached hereto and incorporated herein by this reference. B. Pursuant to the DDA, Developer has agreed to construct on the Site a commercial development that consists of a main hotel building containing _ units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"), and one or more "casita buildings" (as that term is defined below) containing _ (__) Units (collectively, the "Project"). The Project shall be constructed in two (2) phases. The first phase of the Project ("Phase One") shall consist of Developer's (i) completion and opening of, and receipt of a temporary or final certificate of occupancy for, the core operating facilities of the Project, including, without limitation, the lobby, guest check -in area and facilities, administration, restaurant, and pool; and (ii) completion of (including furnishings), and receipt of a temporary or final certificate of occupancy for, fifty percent (50%) of the Units to be developed in the Project, with all of such completed Units operational and made available for rental, all as determined by City of La Quinta's Community 882/015610-0084 774752 05 a02/26/07 Development Director and Director of Building and Safety. The second phase of the Project ("Phase Two") shall consist of Developer's completion of the Project, including, without limitation, Developer's receipt of a temporary or final certificate of occupancy for the remaining fifty percent (50%) of the Units to be developed in the Project, with all of such completed Units operational and made available for rental, all as determined by City of La Quinta's Community Development Director and Director of Building and Safety. As used herein, the term "casita building" shall mean and refer to building that is not a main hotel building. C. The Project shall be constructed on the Site in accordance with all of the requirements set forth in the DDA. D. As a condition to the Agency's conveyance of the Site to Developer, Developer was required to grant to Agency (a) an option to repurchase the Site, or any portion thereof, from Developer, if Developer (i) fails to commence construction of the Project within certain specified time frames, (ii) fails to continuously proceed with construction of the Project or to complete construction of Phase One of the Project within certain specified time frames, or (iii) transfers the Site, or any portion thereof, in violation of the terms of the DDA; and (b) a right of first offer to purchase the Site, or any portion thereof, if (1) Developer fails to complete construction of Phase Two of the Project within certain specified timeframes, or (2) Agency's option under subparagraph (a)(ii) or (a)(iii) above is triggered, Agency does not exercise the applicable option, and the default which gave rise to Agency's option under subparagraph (a)(ii) or (a)(iii) has not been cured, all as further described herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and all of the terms and conditions contained in the DDA, Developer hereby grants to Agency the following repurchase options: 1. Repurchase Option I - Failure to Commence Construction Subject to Section 5(f), Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option I"), if Developer fails to commence construction of the Project within sixty (60) days after the Effective Date. For the purposes of this Option Agreement, the term "commence construction" shall mean Developer's commencement of mass grading for the entire Site, subject to Section 5(f) below. In the event of Developer's failure to commence construction of the Project within the time period described above, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following the expiration of the time period described above and the cure period described in Sections 5(b) and 5(c) hereof. ("Repurchase Option I Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option I by giving written notice to Developer ("Agency's Notice of Option 1 Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option I Period. Failure of Agency to exercise Repurchase Option I shall constitute a waiver of Agency's right to exercise the 882/015610-0084 _2- 774752 05 a02/26/07 Repurchase Option I, but shall not constitute a waiver by Agency of Developer's breach of its obligation to timely commence construction of the Project or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to timely commence construction of the Project. (b) Repurchase Price - Repurchase Option I Agency's repurchase price for the Site, or portion thereof ("Repurchase Option I Repurchase Price"), shall be which is eighty percent (80%) of Developer's purchase price for the Site, or applicable portion thereof. In the event that there are any outstanding mortgages or deeds of trust recorded against the Site that (i) have been approved by the Agency pursuant to Section 309.1 of the DDA; (ii) meet the requirements for Agency subordination set forth in Section 5(g) herein; and (iii) have been subordinated to by the Agency (any of the foregoing, a "Valid Lien") at the time that Repurchase Option I is exercised, Developer and Agency agree that the Repurchase Option I Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same; provided, however, that the outstanding balance due under a Valid Lien shall not exceed eighty percent (80%) of Developer's purchase price for the Site. Any portion of the Repurchase Option I Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 2. Repurchase Option II - Failure to Continuously Proceed With Construction of the Project or to Complete Construction of Phase One Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option II") if, after commencement of construction of the Project, Developer fails to continuously proceed with construction of the Project, or to complete Phase One of the Project within twenty-four (24) months after Developer commences construction of the Project (the "Phase One Completion Deadline"). For purposes of this Option Agreement, "continuously proceed with construction" shall be defined as construction that is interrupted, if at all, for periods of no longer than thirty (30) days. In the event of Developer's failure to continuously proceed with construction, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following such failure and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Continuously Proceed Period"). In the event of Developer's failure to complete construction of Phase One of the Project by the Phase One Completion Deadline, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the completion of the "Cost Audit" (as that term is defined in Section 2(b) below) and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Complete Phase One Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option II by giving written notice to Developer, in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option II Failure to Continuously Proceed Period or the Repurchase Option II Failure to Compete Phase One Period (as applicable). Failure of Agency to exercise the Repurchase Option II shall constitute a waiver by Agency of Agency's right to exercise Repurchase Option II 882/015610-0084 -3- 774752 05 a02/26/07 only with respect to Developer's specific incidence of failure to continuously proceed with construction that gave rise to Repurchase Option II or of Developer's failure to complete construction of Phase One of the Project by the Phase One Completion Deadline (as applicable), but shall not constitute a waiver by Agency of Developer's breach of its obligation to continuously proceed with construction of the Project or to complete construction of Phase One of the Project by the Phase One Completion Deadline (as applicable) or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to continuously proceed with construction of the Project or to complete construction of Phase One of the Project by the Phase One Completion Deadline (as applicable). (b) Determination of Repurchase Price - Repurchase Option II Agency's repurchase price for the Site, or portion thereof ("Repurchase Option II Repurchase Price"), shall be the sum of (a) Developer's purchase price for the Site, or applicable portion thereof, plus one hundred percent (100%) of "Developer's Construction Costs." For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean the construction costs actually incurred by Developer for development of the Project from the Effective Date to the date Agency exercises this Repurchase Option II, as determined by an independent audit, performed by an auditor selected by Agency who is reasonably acceptable to Developer (the "Cost Audit"), which costs shall consist only of (i) the amount(s) paid by Developer to the contractor or contractors performing the works of improvement; and (ii) reasonable inspection and testing costs paid by Developer to independent third party engineers or consultants in conjunction with said works of improvement (but not including costs, fees, charges, or profits allocated to Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer). Developer shall promptly provide Agency and the independent auditor with all records and documentation necessary for the auditor to perform the Cost Audit. In the event that there are any Valid Liens at the time that Repurchase Option II is exercised, Developer and Agency agree that the Repurchase Option II Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option II Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 3. Repurchase Option III Transfer of the Site Prior to Completion of Project Developer hereby grants to Agency an exclusive option to repurchase the Site, or portion thereof, if, prior to the time Developer completes the Project, Developer transfers or suffers an involuntary transfer of the Site in violation of the terms of the DDA ("Repurchase Option III"). In the event of Developer's transfer of the Site in violation of the DDA (an "Unauthorized Transfer"), Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for sixty (60) days following the later of (a) the date of the Unauthorized Transfer that gives rise to Agency's option under this Section, (b) Developer's written notice to Agency of the Unauthorized Transfer that gives rise to Agency's option under this Section, or (c) Agency's discovery of the Unauthorized Transfer that gives rise to Agency's option under this Section ("Repurchase Option III Period"). 882/015610-0084 -4- 774752 05 a02/26/07 (a) Exercise of Option Agency shall exercise the Repurchase Option III by giving written notice to Developer ("Agency's Notice of Option III Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option III Period. Failure of Agency to exercise the Repurchase Option III shall constitute a waiver by Agency only with respect to the specific Unauthorized Transfer that gave rise to Repurchase Option III, but shall not constitute a waiver by Agency of Developer's breach of the transfer provisions in the DDA pursuant to this Option Agreement or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site. (b) Repurchase Price - Repurchase Option III Agency's repurchase price for the Site ("Repurchase Option III Repurchase Price") shall be as follows: i) In the event Developer has not yet commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set forth in Section l(b) of this Option Agreement. ii) In the event Developer has commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Repurchase Price shall be ninety percent (90%) of the purchase price paid to Developer in connection with the Unauthorized Transfer that triggered Agency's right to exercise Repurchase Option II. In the event that there are any Valid Liens at the time that Repurchase Option III is exercised, Developer and Agency agree that the Repurchase Option III Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option III Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 4. Agency's Right of First Offer Developer hereby grants to Agency a right of first offer to purchase the Site, or any portion thereof, in accordance with the terms and conditions in this Section 4 ("Agency's Right of First Offer"), in the event that (a) (i) Agency has had the right to exercise Repurchase Option II with respect to Developer's failure to continuously proceed with construction or Repurchase Option III, and has failed to exercise or has elected not to exercise Repurchase Option II with respect to Developer's failure to continuously proceed with construction or Repurchase Option III (as applicable) in accordance with the terms of this Option Agreement and Developer's default that gave rise to Repurchase Option II with respect to Developer's failure to continuously proceed with construction or Repurchase Option III (as applicable) has not been cured, or (ii) Developer fails to complete construction of Phase Two of the Project within thirty-six (36) months after Developer commences construction of the Project; and (b) Developer has determined to sell or otherwise transfer the Site. 882/015610-0084 _5_ 774752 05 a02/26/07 (a) Developer's Notice to Agency; Agency's Election In the event that the circumstances described in clauses (a) and (b) of the immediately preceding paragraph exist, then prior to entering into any transaction with a third party concerning the sale of the Site, Developer shall provide Agency with written notice of Developer's intent to sell the Site and Developer's proposed sale price for the same ("Developer's Sale Notice"). Agency shall have sixty (60) days after receiving Developer's Sale Notice to notify Developer, in writing, of Agency's election to exercise Agency's Right of First Offer to acquire the Site, or portion thereof, at the price noted in Developer's Sale Notice ("Agency's Election to Exercise"). (b) Agency's Failure to Exercise Agency's failure to deliver to Developer Agency's Election to Exercise within such sixty (60) day period shall be deemed Agency's election not to exercise Agency's Right of First Offer and, except as provided below, Agency's Right of First Offer with respect to the Site shall then terminate and Agency shall have no further right of first offer with respect to the Site. If Agency elects not to exercise (or is deemed to have elected not to exercise) Agency's Right of First Offer then Developer may sell the Site to a third party purchaser; provided, however, that in the event Developer determines to sell the Site at a price that is less than ninety-five percent (95%) of the price set forth in Developer's Sale Notice, Developer shall provide Agency with a written notice of Developer's intent to sell the Site with Developer's new proposed sale price for the same ("Developer's Second Sale Notice"), and Agency's Right of First Offer shall again apply with respect to the Site, in accordance with the process outlined in subparagraph (a) above and this subparagraph (b). (d) No Subordination of Agency's Right of First Offer Agency's Right of First Offer shall not be subordinated to any mortgage or deed of trust, including without limitation mortgages or deeds of trust approved by the Agency pursuant to Section 309.1 of the DDA, and, notwithstanding anything herein to the contrary, any subordination by the Agency pursuant to Section 5(g) hereof shall not affect Agency's Right of First Offer, which shall survive any foreclosure by a lender of a mortgage or deed of trust. In the event of any such foreclosure, Agency shall have the right to exercise Agency's Right of First Offer at the time such lender determines to sell the Site, pursuant to the process outlined above. Notwithstanding the foregoing, nothing herein is intended to or shall have the effect of waiving the transfer restrictions set forth in the DDA, and any proposed sale or transfer by Developer shall be effected in accordance with the same. 5. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer: (a) Successors and Assigns. The Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer created hereby shall be irrevocable by 882/015610-0084 -6_ 774752 05 a02/26/07 Developer and, subject to any subordination by Agency in accordance with paragraph (g) below, shall be binding upon the successors and assigns of Developer and on the Site. (b) Developer's Right to Cure Certain Defaults. Notwithstanding anything herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a written notice to Developer regarding Developer's failure to commence or continuously proceed with construction of the Project, or to complete construction of Phase One of the Project (with any of the above failures referred to hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty (60) day period, and diligently prosecute the same to completion. (c) Notice of Default to Mortgagee or Deed of Trust Holders; Right to Cure. With respect to any mortgage or deed of trust granted by Developer whenever the Agency may deliver any notice or demand to Developer with respect to an Option Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. (d) No Agency Obligation. Notwithstanding any covenant, term, or provision in this Section 5 to the contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer. (e) Termination of Option Agreement. In the event Developer commences and completes construction of the Project, as evidenced by Agency's issuance of a Release of Construction Covenants for the Project and Agency has not exercised Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, Agency shall execute and record a termination of this Option Agreement within fifteen (15) business days after Agency's issuance of the Release of Construction Covenants for the Project. (f) Enforced Delay Pursuant to DDA. Notwithstanding anything to the contrary herein, in the event performance by Developer under the DDA is extended pursuant to Section 702 of the DDA, such that the time by which Developer is required thereunder to commence construction of the Project, complete construction of Phase One of the Project, or complete construction of Phase Two of the Project, is extended, such extensions shall automatically apply hereto to (as applicable) extend the time by which Developer is required to 882/015610-0084 _7- 774752 05 a02/26/07 commence construction of the Project, complete construction of Phase One of the Project, or complete construction of Phase Two of the Project, by the same time as extended under the DDA. (g) Subordination. The Agency agrees to subordinate Sections 1, 2, and 3 of this Option Agreement to any mortgage or deed of trust that has been approved by the Agency pursuant to Section 309.1 of the DDA, and to execute a subordination agreement evidencing same, to be recorded in the official records of the County Recorder for the County of Riverside, provided all of the following conditions are met: i) Loan Amount. The maximum cumulative principal amount of the construction loan for the Project shall not exceed ninety percent (90%) of the lender's appraised value of the Project, upon completion of the Project, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction; ii) Use of Loan Proceeds. The loan(s) shall obligate Developer to expend loan proceeds for no other purpose than the Project; iii) Disbursement Limitations. The loan shall include provisions which ensure that the loan proceeds disbursed to Developer prior to the time Developer completes the mass grading for the Site shall not exceed eighty percent (80%) of the Developer's purchase price for the Site; iv) Agency's Opportunityto Bid. The loan shall require the lender to provide Agency with notice of a foreclosure, and shall provide that in the event of a foreclosure the Agency shall have an equal opportunity to bid for the Site; and v) Notice and Agency's Opportunity to Cure. The loan(s) shall provide that any notice of a Developer breach or default shall also be sent to the Agency at the address listed in Section 6 and that upon receipt of such notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default, and (C) purchase the Site from Developer subject to the construction lender's deed of trust, without the consent of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to accelerate the amounts due under the loan. (h) Agency's Investigation of Site. Agency shall have forty-five (45) days after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, to enter upon the Site (or applicable portion thereof) to conduct any tests, inspections, investigations, or studies of the condition of the Site (or applicable portion thereof). Developer shall permit Agency access to the Site (or applicable portion thereof) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be subject to Agency's approval of any environmental and other site testing conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert 882/015610-0084 774752 05 a02/26/07 witness fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or applicable portion thereof). (i) Escrow Provisions. i) Within five (5) business days after Agency has exercised Repurchase Option I, Repurchase Option II, Repurchase Option 111, or Agency's Right of First Offer (as applicable), or as soon thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow company selected by Agency for the reconveyance of the Site (or applicable portion thereof) to Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by Agency are delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and Agency in writing of the date of the Opening of Escrow promptly following the opening of the Escrow. ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency ("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of Riverside, State of California. Possession of the Site, or portion thereof, shall be delivered to Agency at the Close of Escrow. iii) This Option Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow Holder as well as an agreement between Developer and Agency. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to Agency's approval of a then -current preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Site from Agency to Developer shall be removed by Developer at its sole expense prior to the Close of Escrow pursuant to this Section 5(i) unless such exception(s) is (are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Site (in the form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Site is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by Developer. v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the price noted in Developer's Sale Notice or Developer's Second Sale Notice (as applicable) (the "Right of First Offer Repurchase Price"); (ii) one-half (1/2) of the 882/015610-0084 -9- 774752 05 a02/26/07 escrow fees; (iii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from Agency's request that the amount of insurance be higher than the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price; and (iv) any and all additional instruments or other documents required from Agency (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1/2) of the escrow fees; and (iii) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. Developer shall also be required to pay for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price (as applicable), showing title vested in Agency free and clear of all liens and encumbrances except those permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a commercial property conveyance in Riverside County. vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (v) above, and Escrow Holder is in a position to cause the Title Policy to be issued to Agency, and provided Agency has approved of the condition of the Site, or applicable portion thereof, Escrow Holder shall close the Escrow by taking the following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the portion of the applicable of the Option I Repurchase Price, the Option II Repurchase Price, the Option III Repurchase Price, or the Right of First Offer Repurchase Price remaining after payment of all Valid Liens, to Developer. 0) Agency's Right to Acquire the Site. Notwithstanding anything herein to the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, Developer's commencement to cure the default that led to Agency's exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable portion thereof). (k) Agency's Repurchase of Uncompleted Portions of the Property. Notwithstanding anything herein to the contrary, in the event that as a result of Agency exercising Repurchase Option II or Repurchase Option III Agency acquires the Site, or portion thereof, if Developer has obtained from the City a certificate of occupancy and has sold to third parties one or more of the Units developed thereon, the provisions of this Option Agreement shall apply only to those portions of the Site which have not been sold to third parties ("Uncompleted Portion of the Repurchase Property") and any calculations for determining the Repurchase Option II Repurchase Price or the Repurchase Option III Repurchase Price (as applicable) shall be based solely upon the Uncompleted Portion of the Repurchase Property. 882/015610-0084 _ 1 O_ 774752 05 a0226/07 (1) Agency's Right to Purchase Plans. At the time Agency exercises any of Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, Agency shall also have the right, which Agency may exercise in its sole and absolute discretion, to purchase from Developer for the actual cost Developer incurred in preparing the same, all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to the construction of the Project on the Site (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Site to date of the Agency's exercise of Repurchase Option I, Repurchase Option 11, Repurchase Option III, or Agency's Right of First Offer (as applicable). Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. (m) Agency's Purchase Price Reflects Reasonable Approximation of Damages. Agency and Developer agree that Agency has the right to either proceed with its remedies under the DDA or to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III. Notwithstanding anything to the contrary herein or in the DDA, in the event Agency exercises any of Repurchase Option 1, Repurchase Option 1I, or Repurchase Option III (as applicable), to acquire the Site, or a portion thereof, Agency shall be deemed to have elected to waive the remedies to which it would otherwise be entitled under the DDA. Agency and Developer agree that Agency will incur damages by reason of the default that gave rise to Agency's ability to exercise Repurchase Option I, Repurchase Option 11, or Repurchase Option III (as applicable), which damages shall be impractical and extremely difficult, if not impossible, to ascertain. Agency and Developer, in a reasonable effort to ascertain what Agency's damages would be in the event of such default by Developer, have agreed that considering all of the circumstances existing on the date of this Option Agreement, including the relationship of the sum to the range of harm to Agency that reasonably could be anticipated, including without limitation the potential loss of tax revenue to the City of La Quinta, and the anticipation that proof of actual damages would be costly or inconvenient, the exercise by Agency of Repurchase Option I, Repurchase Option 1I, or Repurchase Option III (as applicable), and the payment by Agency of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable) and the conveyance of the Site, or applicable portion thereof, by Developer to Agency, is fair and reasonable. Agency and Developer agree that the (discounted) Repurchase Option I Repurchase Price, Repurchase Option II Repurchase Price, or Repurchase Option III Repurchase Price (as applicable) reflect a reasonable estimate of Agency's damages under the provisions of Section 1671 of the California Code of Civil Procedure and shall operate as liquidated damages to Agency if Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable). If Agency does not exercise Repurchase Option I, Repurchase Option 1I, or Repurchase Option III, then Agency shall retain and may exercise all of its rights and remedies as set forth in any other agreement, including, but not limited to, the DDA. 882/015610-0084 -11- 774752 05 a02/26/07 6. Notices Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 882M 15610-0084 -12- 774752,05 a02126107 7. Applicable Law and Forum; Attorney's Fees The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Option Agreement. This Option Agreement shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Option Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Option Agreement. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. If either party to this Option Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Option Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. 8. Nonliability of Agency Officials and Employees No officer, official, employee, agent, or representative of Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by Agency, or for any amount which may become due to Developer or its successor, or for breach of any obligation of the terms of this Option Agreement. 9. Nondiscrimination Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this Option Agreement or use of the Site. 10. Interpretation The terms of this Option Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Option Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Option Agreement. 8821015610-0084 -13- 774752 05 a02/26/07 11. Entire Agreement This Option Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and, with the exception of the DDA, supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Option Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 12. Counterparts This Option Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Option Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13. Severability In the event any section or portion of this Option Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Option Agreement. [END - SIGNATURES ON NEXT PAGE] 882/015610-0084 -14- 774752 05 a02/26/07 IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the date first above written. "DEVELOPER" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic By: Its: ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency Executive Director 982/015610-0084 -15- 774752 05 a02/26/07 STATE OF CALIFORNIA COUNTY OF On personally appeared ) ss before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to ne me 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] STATE OF CALIFORNIA ) ss COUNTY OF ) On personally appeared Notary Public before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) ro ne the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610-0084 -16- 774752 05 a0226/07 EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE [To be inserted] 882/015610-0084 EXHIBIT "A" 774752 05 a02/26/07 FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383) OPTION AGREEMENT (Golf Casitas Parcel/Lake Casitas Parcel/Ranch Villas Parcel) NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. This OPTION AGREEMENT ("Option Agreement") is made this day of (the "Effective Date"), by and between LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS A. Developer has entered into a Disposition and Development Agreement dated December 19, 2006 with the Agency (the "DDA"), pursuant to which Agency conveyed to Developer that certain real property located at the southwest intersection of Avenue 52 and Jefferson Street, in the City of La Quinta, County of Riverside, State of California (the "Site"). All defined terms used herein shall have the same meaning as set forth in the DDA unless otherwise stated. The Site is legally described in Exhibit "A," which is attached hereto and incorporated herein by this reference. B. Pursuant to the DDA, Developer has agreed to construct on the Site a commercial development (the "Project') that consists of one or more "casita buildings" (as that term is defined below) containing _ units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"). As used herein, the term "casita building" means a building that is not a main hotel building. [Note: if the Resort Retail Village Parcel will be developed with units designed for overnight occupancy, this form of Option Agreement shall be recorded against the Resort Retail Village Parcel at the close of escrow.] C. The Project shall be constructed on the Site in accordance with all of the requirements set forth in the DDA. 882/015610.0084 790071 04 a02/26/07 D. As a condition to the Agency's conveyance of the Site to Developer, Developer was required to grant to Agency (a) an option to repurchase the Site, or any portion thereof, from Developer, if Developer (i) fails to commence construction of the Project within certain specified time frames, (ii) fails to continuously proceed with construction of the Project or to complete construction of the Project within certain specified time frames, or (iii) transfers the Site, or any portion thereof, in violation of the terms of the DDA; and (b) a right of first offer to purchase the Site, or any portion thereof, if Agency's option under subparagraph (a)(ii) or (a)(iii) above is triggered, Agency does not exercise the applicable option, and the default which gave rise to Agency's option under subparagraph (a)(ii) or (a)(iii) has not been cured, all as further described herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and all of the terms and conditions contained in the DDA, Developer hereby grants to Agency the following repurchase options: 1. Repurchase Option I - Failure to Commence Construction Subject to Section 5(I), Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option I"), if Developer fails to commence construction of the Project within sixty (60) days after the Effective Date. For the purposes of this Option Agreement, the term "commence construction" shall mean Developer's commencement of mass grading for the entire Site, subject to Section 5(f) below. In the event of Developer's failure to commence construction of the Project within the time period described above, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following the expiration of the time period described above and the cure period described in Sections 5(b) and 5(c) hereof. ("Repurchase Option I Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option I by giving written notice to Developer ("Agency's Notice of Option 1 Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option I Period. Failure of Agency to exercise Repurchase Option I shall constitute a waiver of Agency's right to exercise the Repurchase Option 1, but shall not constitute a waiver by Agency of Developer's breach of its obligation to timely commence construction of the Project or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to timely commence construction of the Project. (b) Repurchase Price - Repurchase Option I Agency's repurchase price for the Site, or portion thereof ("Repurchase Option I Repurchase Price"), shall be , which is eighty percent (80%) of Developer's purchase price for the Site, or applicable portion thereof. In the event that there are any outstanding mortgages or deeds of trust recorded against the Site that (i) have been approved by the Agency pursuant to Section 309.1 of the DDA; (ii) meet the requirements for Agency 882/015610-0084 -2- 790071 04 a02/26/07 subordination set forth in Section 5(g) herein; and (iii) have been subordinated to by the Agency (any of the foregoing, a "Valid Lien") at the time that Repurchase Option I is exercised, Developer and Agency agree that the Repurchase Option I Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same; provided, however, that the outstanding balance due under a Valid Lien shall not exceed eighty percent (80%) of Developer's purchase price for the Site. Any portion of the Repurchase Option I Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 2. Repurchase Option II Failure to Continuously Proceed With or to Complete Construction of the Proiect Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option II") if, after commencement of construction of the Project, Developer fails to continuously proceed with construction of the Project, or to complete the Project within twenty-four (24) months after Developer commences construction of the Project (the "Completion Deadline"). For purposes of this Option Agreement, "continuously proceed with construction" shall be defined as construction that is interrupted, if at all, for periods of no longer than thirty (30) days. In the event of Developer's failure to continuously proceed with construction, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following such failure and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Continuously Proceed Period"). In the event of Developer's failure to complete construction of the Project by the Completion Deadline, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the completion of the "Cost Audit" (as that term is defined in Section 2(b) below) and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Complete Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option II by giving written notice to Developer, in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option II Failure to Continuously Proceed Period or the Repurchase Option II Failure to Compete Period (as applicable). Failure of Agency to exercise the Repurchase Option II shall constitute a waiver by Agency of Agency's right to exercise Repurchase Option II only with respect to Developer's specific incidence of failure to continuously proceed with construction that gave rise to Repurchase Option II or of Developer's failure to complete construction of the Project by the Completion Deadline (as applicable), but shall not constitute a waiver by Agency of Developer's breach of its obligation to continuously proceed with construction of the Project or to complete construction of the Project by the Completion Deadline (as applicable) or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to continuously proceed with construction of the Project or to complete construction of the Project by the Completion Deadline (as applicable). (b) Determination of Repurchase Price - Repurchase Option II Agency's repurchase price for the Site, or portion thereof ("Repurchase Option II Repurchase Price"), shall be the sum of (a) Developer's purchase price for the Site, or applicable '92/015610-0084 -3- 790071 04 OM6/07 portion thereof, plus one hundred percent (100%) of "Developer's Construction Costs." For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean the construction costs actually incurred by Developer for development of the Project from the Effective Date to the date Agency exercises this Repurchase Option II, as determined by an independent audit, performed by an auditor selected by Agency who is reasonably acceptable to Developer (the "Cost Audit"), which costs shall consist only of (i) the amount(s) paid by Developer to the contractor or contractors performing the works of improvement; and (ii) reasonable inspection and testing costs paid by Developer to independent third party engineers or consultants in conjunction with said works of improvement (but not including costs, fees, charges, or profits allocated to Developers own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer). Developer shall promptly provide Agency and the independent auditor with all records and documentation necessary for the auditor to perform the Cost Audit. In the event that there are any Valid Liens at the time that Repurchase Option II is exercised, Developer and Agency agree that the Repurchase Option II Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option II Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 3. Repurchase Option III Transfer of the Site Prior to Completion of Project Developer hereby grants to Agency an exclusive option to repurchase the Site, or portion thereof, if, prior to the time Developer completes the Project, Developer transfers or suffers an involuntary transfer of the Site in violation of the terms of the DDA ("Repurchase Option III"). In the event of Developer's transfer of the Site in violation of the DDA (an "Unauthorized Transfer"), Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for sixty (60) days following the later of (a) the date of the Unauthorized Transfer that gives rise to Agency's option under this Section, (b) Developer's written notice to Agency of the Unauthorized Transfer that gives rise to Agency's option under this Section, or (c) Agency's discovery of the Unauthorized Transfer that gives rise to Agency's option under this Section ("Repurchase Option III Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option III by giving written notice to Developer ("Agency's Notice of Option III Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option III Period. Failure of Agency to exercise the Repurchase Option III shall constitute a waiver by Agency only with respect to the specific Unauthorized Transfer that gave rise to Repurchase Option III, but shall not constitute a waiver by Agency of Developer's breach of the transfer provisions in the DDA pursuant to this Option Agreement or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site. (b) Repurchase Price - Repurchase Option III Agency's repurchase price for the Site ("Repurchase Option III Repurchase Price") shall be as follows: 882/015610-0084 _4- 790071 04 a02/26/07 i) In the event Developer has not yet commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set forth in Section I(b) of this Option Agreement. ii) In the event Developer has commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Repurchase Price shall be ninety percent (90%) of the purchase price paid to Developer in connection with the Unauthorized Transfer that triggered Agency's right to exercise Repurchase Option II. In the event that there are any Valid Liens at the time that Repurchase Option III is exercised, Developer and Agency agree that the Repurchase Option III Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option III Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 4. Agency's Right of First Offer Developer hereby grants to Agency a right of first offer to purchase the Site, or any portion thereof, in accordance with the terms and conditions in this Section 4 ("Agency's Right of First Offer"), in the event that (a) Agency has had the right to exercise Repurchase Option II or Repurchase Option III, and has failed to exercise or has elected not to exercise Repurchase Option II or Repurchase Option III (as applicable) in accordance with the terms of this Option Agreement and Developer's default that gave rise to Repurchase Option II or Repurchase Option III (as applicable) has not been cured; and (b) Developer has determined to sell or otherwise transfer the Site. (a) Developer's Notice to Agency' Agency's Election In the event that the circumstances described in clauses (a) and (b) of the immediately preceding paragraph exist, then prior to entering into any transaction with a third party concerning the sale of the Site, Developer shall provide Agency with written notice of Developer's intent to sell the Site and Developer's proposed sale price for the same ("Developer's Sale Notice"). Agency shall have sixty (60) days after receiving Developer's Sale Notice to notify Developer, in writing, of Agency's election to exercise Agency's Right of First Offer to acquire the Site, or portion thereof, at the price noted in Developer's Sale Notice ("Agency's Election to Exercise"). (b) Agency's Failure to Exercise Agency's failure to deliver to Developer Agency's Election to Exercise within such sixty (60) day period shall be deemed Agency's election not to exercise Agency's Right of First Offer and, except as provided below, Agency's Right of First Offer with respect to the Site shall then terminate and Agency shall have no further right of first offer with respect to the Site. If Agency elects not to exercise (or is deemed to have elected not to exercise) Agency's Right of First Offer then Developer may sell the Site to a third party purchaser; provided, however, that in the event Developer determines to sell the Site at a price that is less than ninety-five percent (95%) of the 882/015610-0084 -5_ 790071 04 a02/26/07 price set forth in Developer's Sale Notice, Developer shall provide Agency with a written notice of Developer's intent to sell the Site with Developer's new proposed sale price for the same ("Developer's Second Sale Notice"), and Agency's Right of First Offer shall again apply with respect to the Site, in accordance with the process outlined in subparagraph (a) above and this subparagraph (b). (c) No Subordination of Agency's Right of First Offer Agency's Right of First Offer shall not be subordinated to any mortgage or deed of trust, including without limitation mortgages or deeds of trust approved by the Agency pursuant to Section 309.1 of the DDA, and, notwithstanding anything herein to the contrary, any subordination by the Agency pursuant to Section 5(g) hereof shall not affect Agency's Right of First Offer, which shall survive any foreclosure by a lender of a mortgage or deed of trust. In the event of any such foreclosure, Agency shall have the right to exercise Agency's Right of First Offer at the time such lender determines to sell the Site, pursuant to the process outlined above. Notwithstanding the foregoing, nothing herein is intended to or shall have the effect of waiving the transfer restrictions set forth in the DDA, and any proposed sale or transfer by Developer shall be effected in accordance with the same. 5. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer: (a) Successors and Assigns. The Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer created hereby shall be irrevocable by Developer and, subject to any subordination by Agency in accordance with paragraph (g) below, shall be binding upon the successors and assigns of Developer and on the Site. (b) Developer's Right to Cure Certain Defaults. Notwithstanding anything herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a written notice to Developer regarding Developer's failure to commence or continuously proceed with construction of the Project, or to complete construction of the Project (with any of the above failures referred to hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty (60) day period, and diligently prosecute the same to completion. (c) Notice of Default to Mortgagee or Deed of Trust Holders• Right to Cure. With respect to any mortgage or deed of trust granted by Developer whenever the Agency may deliver any notice or demand to Developer with respect to an Option Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to 882/015610-0084 _6_ 790071 04 .02/26/07 cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. (d) No Agency Obligation. Notwithstanding any covenant, term, or provision in this Section 5 to the contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer. (e) Termination of Option Agreement. In the event Developer commences and completes construction of the Project, as evidenced by Agency's issuance of a Release of Construction Covenants for the Project and Agency has not exercised Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, Agency shall execute and record a termination of this Option Agreement within fifteen (15) business days after Agency's issuance of the Release of Construction Covenants for the Project. (f) Enforced Delay Pursuant to DDA. Notwithstanding anything to the contrary herein, in the event performance by Developer under the DDA is extended pursuant to Section 702 of the DDA, such that the time by which Developer is required thereunder to commence construction of the Project or complete construction of the Project is extended, such extensions shall automatically apply hereto to (as applicable) extend the time by which Developer is required to commence construction of the Project or complete construction of the Project by the same time as extended under the DDA. (g) Subordination. The Agency agrees to subordinate Sections 1, 2, and 3 of this Option Agreement to any mortgage or deed of trust that has been approved by the Agency pursuant to Section 309.1 of the DDA, and to execute a subordination agreement evidencing same, to be recorded in the official records of the County Recorder for the County of Riverside, provided all of the following conditions are met: i) Loan Amount. The maximum cumulative principal amount of the construction loan for the Project shall not exceed ninety percent (90%) of the lender's appraised value of the Project, upon completion of the Project, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction; ii) Use of Loan Proceeds. The loan(s) shall obligate Developer to expend loan proceeds for no other purpose than the Project; iii) Disbursement Limitations. The loan shall include provisions which ensure that the loan proceeds disbursed to Developer prior to the time Developer completes the mass grading for the Site shall not exceed eighty percent (80%) of the Developer's purchase price for the Site; 882/015610-0084 _7_ 790071 04 a02/26/07 iv) Agency's Opportunity to Bid. The loan shall require the lender to provide Agency with notice of a foreclosure, and shall provide that in the event of a foreclosure the Agency shall have an equal opportunity to bid for the Site; and v) Notice and Agency's Opportunity to Cure. The loan(s) shall provide that any notice of a Developer breach or default shall also be sent to the Agency at the address listed in Section 6 and that upon receipt of such notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default, and (C) purchase the Site from Developer subject to the construction lender's deed of trust, without the consent of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to accelerate the amounts due under the loan. (h) Agency's Investigation of Site. Agency shall have forty-five (45) days after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, to enter upon the Site (or applicable portion thereof) to conduct any tests, inspections, investigations, or studies of the condition of the Site (or applicable portion thereof). Developer shall permit Agency access to the Site (or applicable portion thereof) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be subject to Agency's approval of any environmental and other site testing conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or applicable portion thereof). (i) Escrow Provisions. i) Within five (5) business days after Agency has exercised Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer (as applicable), or as soon thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow company selected by Agency for the reconveyance of the Site (or applicable portion thereof) to Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by Agency are delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and Agency in writing of the date of the Opening of Escrow promptly following the opening of the Escrow. ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency ("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of Riverside, State of California. Possession of the Site, or portion thereof, shall be delivered to Agency at the Close of Escrow. iii) This Option Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow 882/015610-0084 790071 04 a02/26/07 Holder as well as an agreement between Developer and Agency. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to Agency's approval of a then -current preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Site from Agency to Developer shall be removed by Developer at its sole expense prior to the Close of Escrow pursuant to this Section 5(i) unless such exception(s) is (are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Site (in the form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Site is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by Developer. v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the price noted in Developer's Sale Notice or Developer's Second Sale Notice (as applicable) (the "Right of First Offer Repurchase Price"); (ii) one-half (1/2) of the escrow fees; (iii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from Agency's request that the amount of insurance be higher than the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price; and (iv) any and all additional instruments or other documents required from Agency (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1/2) of the escrow fees; and (iii) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. Developer shall also be required to pay for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price (as applicable), showing title vested in Agency free and clear of all liens and encumbrances except those permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a commercial property conveyance in Riverside County. vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (v) above, and Escrow Holder is in a position to cause the Title Policy to be issued to Agency, and provided Agency has approved of the '82/015610-0084 -9_ 790071 04 a02/26/07 condition of the Site, or applicable portion thereof, Escrow Holder shall close the Escrow by taking the following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the portion of the applicable of the Option I Repurchase Price, the Option II Repurchase Price, the Option III Repurchase Price, or the Right of First Offer Repurchase Price remaining after payment of all Valid Liens, to Developer. 0) Agency's Right to Acquire the Site. Notwithstanding anything herein to the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option II, Repurchase Option 111, or Agency's Right of First Offer, Developer's commencement to cure the default that led to Agency's exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable portion thereof). (k) Agency's Repurchase of Uncompleted Portions of the Property. Notwithstanding anything herein to the contrary, in the event that as a result of Agency exercising Repurchase Option II or Repurchase Option III Agency acquires the Site, or portion thereof, if Developer has obtained from the City a certificate of occupancy and has sold to third parties one or more of the Units developed thereon, the provisions of this Option Agreement shall apply only to those portions of the Site which have not been sold to third parties ("Uncompleted Portion of the Repurchase Property") and any calculations for determining the Repurchase Option 11 Repurchase Price or the Repurchase Option III Repurchase Price (as applicable) shall be based solely upon the Uncompleted Portion of the Repurchase Property. (1) Agency's Right to Purchase Plans. At the time Agency exercises any of Repurchase Option I, Repurchase Option 11, Repurchase Option III, or Agency's Right of First Offer, Agency shall also have the right, which Agency may exercise in its sole and absolute discretion, to purchase from Developer for the actual cost Developer incurred in preparing the same, all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to the construction of the Project on the Site (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Site to date of the Agency's exercise of Repurchase Option 1, Repurchase Option II, Repurchase Option 111, or Agency's Right of First Offer (as applicable). Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. (m) Agency's Purchase Price Reflects Reasonable Approximation of Damages. Agency and Developer agree that Agency has the right to either proceed with its remedies under the DDA or to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III. Notwithstanding anything to the contrary herein or in the DDA, in the event Agency exercises any of Repurchase Option 1, Repurchase Option 11, or Repurchase Option III (as applicable), to acquire the Site, or a portion thereof, Agency shall be deemed to have elected to waive the remedies to which it would otherwise be entitled under the DDA. Agency and Developer agree that Agency will incur damages by reason of the default that gave 882/015610-0094 _ 1 Q_ 790071 04 a02/26/07 rise to Agency's ability to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), which damages shall be impractical and extremely difficult, if not impossible, to ascertain. Agency and Developer, in a reasonable effort to ascertain what Agency's damages would be in the event of such default by Developer, have agreed that considering all of the circumstances existing on the date of this Option Agreement, including the relationship of the sum to the range of harm to Agency that reasonably could be anticipated, including without limitation the potential loss of tax revenue to the City of La Quinta, and the anticipation that proof of actual damages would be costly or inconvenient, the exercise by Agency of Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), and the payment by Agency of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable) and the conveyance of the Site, or applicable portion thereof, by Developer to Agency, is fair and reasonable. Agency and Developer agree that the (discounted) Repurchase Option I Repurchase Price, Repurchase Option II Repurchase Price, or Repurchase Option III Repurchase Price (as applicable) reflect a reasonable estimate of Agency's damages under the provisions of Section 1671 of the California Code of Civil Procedure and shall operate as liquidated damages to Agency if Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable). If Agency does not exercise Repurchase Option I, Repurchase Option II, or Repurchase Option III, then Agency shall retain and may exercise all of its rights and remedies as set forth in any other agreement, including, but not limited to, the DDA. 6. Notices Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. 882/015610-0084 -11- 790071 04 a0226/07 With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 7. Applicable Law and Forum,• Attorney's Fees The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Option Agreement. This Option Agreement shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Option Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Option Agreement. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. If either party to this Option Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Option Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. 882/015610-0084 -12- 790071 04 a02/26/07 8. Nonliability of Agency Officials and Employees No officer, official, employee, agent, or representative of Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by Agency, or for any amount which may become due to Developer or its successor, or for breach of any obligation of the terms of this Option Agreement. 9. Nondiscrimination Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this Option Agreement or use of the Site. 10. Interpretation The terms of this Option Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Option Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Option Agreement. 11. Entire Agreement This Option Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and, with the exception of the DDA, supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Option Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 12. Counterparts This Option Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Option Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13. Severability In the event any section or portion of this Option Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Option Agreement. [END - SIGNATURES ON NEXT PAGE] 882/015610-0084 -13- 790071 04 a02/26/07 IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the date first above written. "DEVELOPER" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic By: Its: ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency Executive Director 882/015610-0084 -14- 790071 04 a02/26/07 STATE OF CALIFORNIA COUNTY OF On personally appeared ss before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to oe ine 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] STATE OF CALIFORNIA COUNTY OF On personally appeared Notary Public ) ss before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to ne me 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] 882JO 15610-0084 -15- 790071 04 a02/26/07 EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE [To be inserted] 882/015610-0084 EXHIBIT "A" 790071 04 a02/26/07 FREE RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (SPACE ABOVE THIS LINE FOR RECORDING USE) (EXEMPT FROM RECORDING FEE PER GOV CODE § 27383) OPTION AGREEMENT (Black Box Parcel/Resort Retail Village Parcel) NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. This OPTION AGREEMENT ("Option Agreement') is made this day of (the "Effective Date"), by and between LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS A. Developer has entered into a Disposition and Development Agreement dated December 19, 2006 with the Agency (the "DDA"), pursuant to which Agency conveyed to Developer that certain real property located at the southwest intersection of Avenue 52 and Jefferson Street, in the City of La Quinta, County of Riverside, State of California (the "Site"). All defined terms used herein shall have the same meaning as set forth in the DDA unless otherwise stated. The Site is legally described in Exhibit "A," which is attached hereto and incorporated herein by this reference. B. Pursuant to the DDA, Developer has agreed to construct on the Site a commercial development that consists of (the "Project'). [Note: if the Resort Retail Village Parcel will be developed with units designed for overnight occupancy, the form of Option Agreement designated for use with the Golf Casitas Parcel and the Lake Casitas Parcel shall be recorded against the Resort Retail Village Parcel at the close of escrow.] C. The Project shall be constructed on the Site in accordance with all of the requirements set forth in the DDA. 882/015610-0084 790218 03 a02/26/07 D. As a condition to the Agency's conveyance of the Site to Developer, Developer was required to grant to Agency (a) an option to repurchase the Site, or any portion thereof, from Developer, if Developer (i) fails to commence construction of the Project within certain specified time frames, (ii) fails to continuously proceed with construction of the Project or to complete construction of the Project within certain specified time frames, or (iii) transfers the Site, or any portion thereof, in violation of the terms of the DDA; and (b) a right of first offer to purchase the Site, or any portion thereof, if Agency's option under subparagraph (a)(h) or (a)(iii) above is triggered, Agency does not exercise the applicable option, and the default which gave rise to Agency's option under subparagraph (a)(ii) or (a)(iii) has not been cured, all as further described herein. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and incorporating the above recitals and all of the terms and conditions contained in the DDA, Developer hereby grants to Agency the following repurchase options: 1. Repurchase Option I - Failure to Commence Construction Subject to Section 5(t), Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option I"), if Developer fails to commence construction of the Project within sixty (60) days after the Effective Date. For the purposes of this Option Agreement, the term "commence construction" shall mean Developer's commencement of mass grading for the entire Site, subject to Section 5(f) below. In the event of Developer's failure to commence construction of the Project within the time period described above, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following the expiration of the time period described above and the cure period described in Sections 5(b) and 5(c) hereof. ("Repurchase Option I Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option I by giving written notice to Developer ("Agency's Notice of Option 1 Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option I Period. Failure of Agency to exercise Repurchase Option I shall constitute a waiver of Agency's right to exercise the Repurchase Option I, but shall not constitute a waiver by Agency of Developer's breach of its obligation to timely commence construction of the Project or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to timely commence construction of the Project. (b) Repurchase Price - Repurchase Option I Agency's repurchase price for the Site, or portion thereof ("Repurchase Option I Repurchase Price"), shall be which is eighty percent (80%) of Developer's purchase price for the Site, or applicable portion thereof. In the event that there are any outstanding mortgages or deeds of trust recorded against the Site that (i) have been approved by the Agency pursuant to Section 309.1 of the DDA; (ii) meet the requirements for Agency 882/015610-0084 -'L_ 790218 03 n02/26/07 subordination set forth in Section 5(g) herein; and (iii) have been subordinated to by the Agency (any of the foregoing, a "Valid Lien") at the time that Repurchase Option I is exercised, Developer and Agency agree that the Repurchase Option I Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same; provided, however, that the outstanding balance due under a Valid Lien shall not exceed eighty percent (80%) of Developer's purchase price for the Site. Any portion of the Repurchase Option I Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 2. Repurchase Option II Failure to Continuously Proceed With or to Complete Construction of the Project Developer hereby grants to Agency an exclusive option to repurchase the Site, or any portion thereof ("Repurchase Option II") if, after commencement of construction of the Project, Developer fails to continuously proceed with construction of the Project, or to complete the Project within twenty-four (24) months after Developer commences construction of the Project (the "Completion Deadline"). For purposes of this Option Agreement, "continuously proceed with construction" shall be defined as construction that is interrupted, if at all, for periods of no longer than thirty (30) days. In the event of Developer's failure to continuously proceed with construction, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of sixty (60) days following such failure and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Continuously Proceed Period"). In the event of Developer's failure to complete construction of the Project by the Completion Deadline, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days following the completion of the "Cost Audit" (as that term is defined in Section 2(b) below) and after expiration of the cure period described in Sections 5(b) and 5(c) hereof ("Repurchase Option II Failure to Complete Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option II by giving written notice to Developer, in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option II Failure to Continuously Proceed Period or the Repurchase Option II Failure to Compete Period (as applicable). Failure of Agency to exercise the Repurchase Option II shall constitute a waiver by Agency of Agency's right to exercise Repurchase Option II only with respect to Developer's specific incidence of failure to continuously proceed with construction that gave rise to Repurchase Option II or of Developer's failure to complete construction of the Project by the Completion Deadline (as applicable), but shall not constitute a waiver by Agency of Developer's breach of its obligation to continuously proceed with construction of the Project or to complete construction of the Project by the Completion Deadline (as applicable) or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's failure to continuously proceed with construction of the Project or to complete construction of the Project by the Completion Deadline (as applicable). (b) Determination of Repurchase Price - Repurchase Option II Agency's repurchase price for the Site, or portion thereof ("Repurchase Option II Repurchase Price"), shall be the sum of (a) Developer's purchase price for the Site, or applicable 882/015610-0084 -3_ 790218 03 .02/26/07 portion thereof, plus one hundred percent (100%) of "Developer's Construction Costs." For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean the construction costs actually incurred by Developer for development of the Project from the Effective Date to the date Agency exercises this Repurchase Option II, as determined by an independent audit, performed by an auditor selected by Agency who is reasonably acceptable to Developer (the "Cost Audit"), which costs shall consist only of (i) the amount(s) paid by Developer to the contractor or contractors performing the works of improvement; and (ii) reasonable inspection and testing costs paid by Developer to independent third party engineers or consultants in conjunction with said works of improvement (but not including costs, fees, charges, or profits allocated to Developer's own internal administrative, payroll, or overhead expenses or to any person or entity affiliated with Developer). Developer shall promptly provide Agency and the independent auditor with all records and documentation necessary for the auditor to perform the Cost Audit. In the event that there are any Valid Liens at the time that Repurchase Option II is exercised, Developer and Agency agree that the Repurchase Option II Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option II Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 3. Repurchase Option III Transfer of the Site Prior to Completion of Project Developer hereby grants to Agency an exclusive option to repurchase the Site, or portion thereof, if, prior to the time Developer completes the Project, Developer transfers or suffers an involuntary transfer of the Site in violation of the terms of the DDA ("Repurchase Option III"). In the event of Developer's transfer of the Site in violation of the DDA (an "Unauthorized Transfer"), Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option for sixty (60) days following the later of (a) the date of the Unauthorized Transfer that gives rise to Agency's option under this Section, (b) Developer's written notice to Agency of the Unauthorized Transfer that gives rise to Agency's option under this Section, or (c) Agency's discovery of the Unauthorized Transfer that gives rise to Agency's option under this Section ("Repurchase Option III Period"). (a) Exercise of Option Agency shall exercise the Repurchase Option III by giving written notice to Developer ("Agency's Notice of Option III Exercise"), in accordance with Section 6 of this Option Agreement, prior to the expiration of the Repurchase Option III Period. Failure of Agency to exercise the Repurchase Option III shall constitute a waiver by Agency only with respect to the specific Unauthorized Transfer that gave rise to Repurchase Option III, but shall not constitute a waiver by Agency of Developer's breach of the transfer provisions in the DDA pursuant to this Option Agreement or of any remedies Agency may have under the terms of the DDA or under any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site. (b) Repurchase Price - Repurchase Option III Agency's repurchase price for the Site ("Repurchase Option III Repurchase Price") shall be as follows: 88210156104084 _4- 790218 03 a02/26/07 i) In the event Developer has not yet commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set forth in Section I(b) of this Option Agreement. ii) In the event Developer has commenced construction of the Project at the time Agency exercises its Repurchase Option III, Agency's Repurchase Option III Repurchase Price shall be ninety percent (90%) of the purchase price paid to Developer in connection with the Unauthorized Transfer that triggered Agency's right to exercise Repurchase Option II. In the event that there are any Valid Liens at the time that Repurchase Option III is exercised, Developer and Agency agree that the Repurchase Option III Repurchase Price shall be paid to the lender on any such Valid Lien, up to the then outstanding balance due under same. Any portion of the Repurchase Option III Repurchase Price not so needed to extinguish a Valid Lien shall be paid to Developer. 4. Agency's Right of First Offer Developer hereby grants to Agency a right of first offer to purchase the Site, or any portion thereof, in accordance with the terms and conditions in this Section 4 ("Agency's Right of First Offer"), in the event that (a) Agency has had the right to exercise Repurchase Option II or Repurchase Option III, and has failed to exercise or has elected not to exercise Repurchase Option II or Repurchase Option III (as applicable) in accordance with the terms of this Option Agreement and Developer's default that gave rise to Repurchase Option II or Repurchase Option III (as applicable) has not been cured; and (b) Developer has determined to sell or otherwise transfer the Site. (a) Developer's Notice to Agency; Agency's Election In the event that the circumstances described in clauses (a) and (b) of the immediately preceding paragraph exist, then prior to entering into any transaction with a third party concerning the sale of the Site, Developer shall provide Agency with written notice of Developer's intent to sell the Site and Developer's proposed sale price for the same ("Developer's Sale Notice"). Agency shall have sixty (60) days after receiving Developer's Sale Notice to notify Developer, in writing, of Agency's election to exercise Agency's Right of First Offer to acquire the Site, or portion thereof, at the price noted in Developer's Sale Notice ("Agency's Election to Exercise"). (b) Agency's Failure to Exercise Agency's failure to deliver to Developer Agency's Election to Exercise within such sixty (60) day period shall be deemed Agency's election not to exercise Agency's Right of First Offer and, except as provided below, Agency's Right of First Offer with respect to the Site shall then terminate and Agency shall have no further right of first offer with respect to the Site. If Agency elects not to exercise (or is deemed to have elected not to exercise) Agency's Right of First Offer then Developer may sell the Site to a third party purchaser; provided, however, that in the event Developer determines to sell the Site at a price that is less than ninety-five percent (95%) of the 88M 15610-0084 _5- 790218 03 a02/26/07 price set forth in Developer's Sale Notice, Developer shall provide Agency with a written notice of Developer's intent to sell the Site with Developer's new proposed sale price for the same ("Developer's Second Sale Notice"), and Agency's Right of First Offer shall again apply with respect to the Site, in accordance with the process outlined in subparagraph (a) above and this subparagraph (b). (c) No Subordination of Agency's Right of First Offer Agency's Right of First Offer shall not be subordinated to any mortgage or deed of trust, including without limitation mortgages or deeds of trust approved by the Agency pursuant to Section 309.1 of the DDA, and, notwithstanding anything herein to the contrary, any subordination by the Agency pursuant to Section 5(g) hereof shall not affect Agency's Right of First Offer, which shall survive any foreclosure by a lender of a mortgage or deed of trust. In the event of any such foreclosure, Agency shall have the right to exercise Agency's Right of First Offer at the time such lender determines to sell the Site, pursuant to the process outlined above. Notwithstanding the foregoing, nothing herein is intended to or shall have the effect of waiving the transfer restrictions set forth in the DDA, and any proposed sale or transfer by Developer shall be effected in accordance with the same. 5. Additional Terms Applicable to the Repurchase Options The following additional terms shall apply to Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer: (a) Successors and Assigns. The Repurchase Option I, Repurchase Option II, Repurchase Option III, and Agency's Right of First Offer created hereby shall be irrevocable by Developer and, subject to any subordination by Agency in accordance with paragraph (g) below, shall be binding upon the successors and assigns of Developer and on the Site. (b) Developer's Right to Cure Certain Defaults. Notwithstanding anything herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a written notice to Developer regarding Developer's failure to commence or continuously proceed with construction of the Project, or to complete construction of the Project (with any of the above failures referred to hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty (60) day period, and diligently prosecute the same to completion. (c) Notice of Default to Mortgagee or Deed of Trust Holders Right to Cure. With respect to any mortgage or deed of trust granted by Developer whenever the Agency may deliver any notice or demand to Developer with respect to an Option Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to each holder of record of any mortgage or deed of trust which has previously requested such notice in writing. Each such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to 892/015610-0084 _6_ 790218 03 a02/26/07 cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth above for commencing to cure or remedy a Developer default which requires title and/or possession of the Property (or portion thereof) if and to the extent any such holder has within such sixty (60) day period commenced proceedings to obtain title and/or possession and thereafter the holder diligently pursues such proceedings to completion and cures or remedies the default. (d) No Agency Obligation. Notwithstanding any covenant, term, or provision in this Section 5 to the contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer. (e) Termination of Option Agreement. In the event Developer commences and completes construction of the Project, as evidenced by Agency's issuance of a Release of Construction Covenants for the Project and Agency has not exercised Repurchase Option I, Repurchase Option II, Repurchase Option ITI, or Agency's Right of First Offer, Agency shall execute and record a termination of this Option Agreement within fifteen (15) business days after Agency's issuance of the Release of Construction Covenants for the Project. (f) Enforced Delay Pursuant to DDA. Notwithstanding anything to the contrary herein, in the event performance by Developer under the DDA is extended pursuant to Section 702 of the DDA, such that the time by which Developer is required thereunder to commence construction of the Project or complete construction of the Project is extended, such extensions shall automatically apply hereto to (as applicable) extend the time by which Developer is required to commence construction of the Project or complete construction of the Project by the same time as extended under the DDA. (g) Subordination. The Agency agrees to subordinate Sections 1, 2, and 3 of this Option Agreement to any mortgage or deed of trust that has been approved by the Agency pursuant to Section 309.1 of the DDA, and to execute a subordination agreement evidencing same, to be recorded in the official records of the County Recorder for the County of Riverside, provided all of the following conditions are met: i) Loan Amount. The maximum cumulative principal amount of the construction loan for the Project shall not exceed ninety percent (90%) of the lender's appraised value of the Project, upon completion of the Project, which amount shall be verified in writing to Agency Executive Director's reasonable satisfaction; ii) Use of Loan Proceeds. The loan(s) shall obligate Developer to expend loan proceeds for no other purpose than the Project; iii) Disbursement Limitations. The loan shall include provisions which ensure that the loan proceeds disbursed to Developer prior to the time Developer completes the mass grading for the Site shall not exceed eighty percent (80%) of the Developer's purchase price for the Site; 9821015610.0084 _7_ 790218 03 a0MN07 iv) Agency's Opportunity to Bid. The loan shall require the lender to provide Agency with notice of a foreclosure, and shall provide that in the event of a foreclosure the Agency shall have an equal opportunity to bid for the Site; and v) Notice and Agency's Opportunity to Cure. The loan(s) shall provide that any notice of a Developer breach or default shall also be sent to the Agency at the address listed in Section 6 and that upon receipt of such notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach or default, and (C) purchase the Site from Developer subject to the construction lender's deed of trust, without the consent of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to accelerate the amounts due under the loan. (h) Agency's Investigation of Site. Agency shall have forty-five (45) days after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer, to enter upon the Site (or applicable portion thereof) to conduct any tests, inspections, investigations, or studies of the condition of the Site (or applicable portion thereof). Developer shall permit Agency access to the Site (or applicable portion thereof) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be subject to Agency's approval of any environmental and other site testing conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its officers, directors, shareholders, employees, agents, and representatives from and against all claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or applicable portion thereof). (i) Escrow Provisions. i) Within five (5) business days after Agency has exercised Repurchase Option I, Repurchase Option II, Repurchase Option III, or Agency's Right of First Offer (as applicable), or as soon thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow company selected by Agency for the reconveyance of the Site (or applicable portion thereof) to Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed copy of this Option Agreement and a notice of exercise of option prepared by Agency are delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and Agency in writing of the date of the Opening of Escrow promptly following the opening of the Escrow. ii) Escrow shall close on or before the date that is ninety (90) days after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency ("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of Riverside, State of California. Possession of the Site, or portion thereof, shall be delivered to Agency at the Close of Escrow. iii) This Option Agreement, together with any standard instructions of Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow 882/015610-0084 -8_ 790218 03 a02/26M Holder as well as an agreement between Developer and Agency. In the event of any conflict between the provisions of this Option Agreement and Escrow Holder's standard instructions, this Option Agreement shall prevail. iv) The Escrow shall be subject to Agency's approval of a then -current preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary title report that is (are) created concurrent with or after the close of escrow that conveyed the Site from Agency to Developer shall be removed by Developer at its sole expense prior to the Close of Escrow pursuant to this Section 5(i) unless such exception(s) is (are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation of the Grant Deed to the Site (in the form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the standard form ALTA policy of title insurance. In the event the Site is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to Developer through the foregoing Escrow. Any additional amount necessary to satisfy such indebtedness shall be paid by Developer. v) On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the price noted in Developer's Sale Notice or Developer's Second Sale Notice (as applicable) (the "Right of First Offer Repurchase Price"); (ii) one-half (1/2) of the escrow fees; (iii) the portion of the title insurance premium attributable to any extra or extended coverages, or any additional charge resulting from Agency's request that the amount of insurance be higher than the applicable of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price; and (iv) any and all additional instruments or other documents required from Agency (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. On or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1/2) of the escrow fees; and (iii) any and all additional instruments or other documents required from Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. Developer shall also be required to pay for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, the Repurchase Option III Repurchase Price, or the Right of First Offer Repurchase Price (as applicable), showing title vested in Agency free and clear of all liens and encumbrances except those permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between the parties in the manner customary for a commercial property conveyance in Riverside County. vi) If, on or before the Closing Date, Escrow Holder has received all of the documents and funds listed in paragraph (v) above, and Escrow Holder is in a position to cause the Title Policy to be issued to Agency, and provided Agency has approved of the 882/015610-0084 -9- 790218 03 a02/26/07 condition of the Site, or applicable portion thereof, Escrow Holder shall close the Escrow by taking the following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the portion of the applicable of the Option I Repurchase Price, the Option II Repurchase Price, the Option III Repurchase Price, or the Right of First Offer Repurchase Price remaining after payment of all Valid Liens, to Developer. 0) Agency's Right to Acquire the Site. Notwithstanding anything herein to the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option I1, Repurchase Option III, or Agency's Right of First Offer, Developer's commencement to cure the default that led to Agency's exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable portion thereof). (k) Agency's Right to Purchase Plans. At the time Agency exercises any of Repurchase Option 1, Repurchase Option I1, Repurchase Option III, or Agency's Right of First Offer, Agency shall also have the right, which Agency may exercise in its sole and absolute discretion, to purchase from Developer for the actual cost Developer incurred in preparing the same, all plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports, grading plans and any other materials relating to the construction of the Project on the Site (the "Plans"), together with copies of all of the Plans, as have been prepared for the development of the Site to date of the Agency's exercise of Repurchase Option I, Repurchase Option 11, Repurchase Option III, or Agency's Right of First Offer (as applicable). Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency the copyright or other ownership rights of third parties. Agency's acquisition or use of the Plans or any of them shall be without any representation or warranty by Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the Plans. (1) Agency's Purchase Price Reflects Reasonable Approximation of Damages. Agency and Developer agree that Agency has the right to either proceed with its remedies under the DDA or to exercise Repurchase Option I, Repurchase Option II, or Repurchase Option Ill. Notwithstanding anything to the contrary herein or in the DDA, in the event Agency exercises any of Repurchase Option 1, Repurchase Option I1, or Repurchase Option III (as applicable), to acquire the Site, or a portion thereof, Agency shall be deemed to have elected to waive the remedies to which it would otherwise be entitled under the DDA. Agency and Developer agree that Agency will incur damages by reason of the default that gave rise to Agency's ability to exercise Repurchase Option I, Repurchase Option 11, or Repurchase Option III (as applicable), which damages shall be impractical and extremely difficult, if not impossible, to ascertain. Agency and Developer, in a reasonable effort to ascertain what Agency's damages would be in the event of such default by Developer, have agreed that considering all of the circumstances existing on the date of this Option Agreement, including the relationship of the sum to the range of harm to Agency that reasonably could be anticipated, including without limitation the potential loss of tax revenue to the City of La Quinta, and the anticipation that proof of actual damages would be costly or inconvenient, the exercise by Agency of Repurchase Option I, Repurchase Option 11, or Repurchase Option III (as applicable), and the payment by Agency of the Repurchase Option I Repurchase Price, the Repurchase 882/015610-0084 -10- 790218 03 a02/26/07 Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable) and the conveyance of the Site, or applicable portion thereof, by Developer to Agency, is fair and reasonable. Agency and Developer agree that the (discounted) Repurchase Option I Repurchase Price, Repurchase Option II Repurchase Price, or Repurchase Option III Repurchase Price (as applicable) reflect a reasonable estimate of Agency's damages under the provisions of Section 1671 of the California Code of Civil Procedure and shall operate as liquidated damages to Agency if Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable). If Agency does not exercise Repurchase Option 1, Repurchase Option II, or Repurchase Option II1, then Agency shall retain and may exercise all of its rights and remedies as set forth in any other agreement, including, but not limited to, the DDA. 6. Notices Demands and Communications Between the Parties Formal notices, demands, and communications between Agency and Developer shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 Costa Mesa, California 92626 Attn: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem 882/015610-0084 -11- 790218.03 a02/26/07 and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. 7. Applicable Law and Forum• Attorney's Fees The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Option Agreement. This Option Agreement shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Option Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Option Agreement. The rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made in any manner permitted by law and shall be effective whether served within or outside of California. If either party to this Option Agreement is required to initiate or defend, or is made a party to, any action or proceeding in any way connected with this Option Agreement, the party prevailing in the final judgment in such action or proceeding, in addition to any other relief which may be granted, shall be entitled to reasonable attorney's fees. Attorney's fees shall include reasonable costs for investigating such action, conducting discovery, retaining expert witnesses, and all other necessary costs the court allows which are incurred in such litigation. 8. Nonliability of Agency Officials and Employees No officer, official, employee, agent, or representative of Agency shall be personally liable to Developer or any successor in interest, in the event of any default or breach by Agency, or for any amount which may become due to Developer or its successor, or for breach of any obligation of the terms of this Option Agreement. 882/015610-0084 -12- 790218 03 a02/26107 9. Nondiscrimination Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this Option Agreement or use of the Site. 10. Interpretation The terms of this Option Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Option Agreement or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Option Agreement. 11. Entire Agreement This Option Agreement integrates all of the terms and conditions mentioned herein, or incidental hereto, and, with the exception of the DDA, supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this Option Agreement must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of Agency and Developer. 12. Counterparts This Option Agreement may be executed in counterparts, each of which, after all the parties hereto have signed this Option Agreement, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. 13. Severability In the event any section or portion of this Option Agreement shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this Option Agreement. [END - SIGNATURES ON NEXT PAGE] 882/015610-0084 -13- 790218 03 a02Y26/07 IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the date first above written. "DEVELOPER' LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY a public body, corporate and politic Its: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quints Redevelopment Agency 882/015610-0084 -14- 790218 03 a02/26/07 STATE OF CALIFORNIA ) ss COUNTY OF ) On personally appeared before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. [SEAL] STATE OF CALIFORNIA ) ss COUNTY OF ) On personally appeared Notary Public before me, a Notary Public, personally known to me (or proved to me on the basis of satisfactory evidence) ro ne me person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. Notary Public [SEAL] 882/015610A084 -I 5- 790218 03 a02/26/07 EXHIBIT "A" LEGAL DESCRIPTION OF THE SITE [To be inserted] 882/015610-0084 EXHIBIT "A" 790218 03 a02/26/07 ATTACHMENT NO.8 RELEASE OF CONSTRUCTION COVENANTS [See Following Pages] 882/015610-0084 737414 08 a02/26/07 RECORDING REQUESTED BY, AND WHEN RECORDED MAIL TO: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, CA 92210 Attn: Theodore R. Lennon, Jr. This document is exempt from the payment of a recording fee pursuant to Government Code Section 27383 RELEASE OF CONSTRUCTION COVENANTS THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), in favor of LDD SILVERROCK, LLC, a Delaware limited liability company (the "Developer"), as of , —• RECITALS A. The Agency and the Developer have entered into that certain Disposition and Development Agreement (the "DDA") dated December 18, 2006 concerning the redevelopment of certain real property situated in the City of La Quinta, California, a portion of which is more fully described in Exhibit "A" attached hereto and made a part hereof (the "Property"). B. As referenced in Section 308 of the DDA, the Agency is required to furnish the Develoer or its successors with a Release of Construction Covenants upon Developer's p completion of construction of the [Insert applicable Phase of Development, as that term is described in Section 100 of the DDA] (as defined in Section 100 of the DDA), which Release is required to be in such form as to permit it to be recorded in the Recorder's office of Riverside County. This Release is conclusive determination of satisfactory completion of the construction and development required by the DDA. C. The Agency has conclusively determined that such construction and development has been satisfactorily completed. NOW, THEREFORE, the Agency hereby certifies as follows: 1. The [Insert applicable Phase of Development, as that term is described in Section 100 of the DDAlto be constructed by the Developer has been fully and satisfactorily completed in conformance with the DDA. Any operating requirements and all use, maintenance or nondiscrimination covenants contained in the DDA and other documents e according to executed and recorded pursuant to the DDA shall remain in effect and enforceabl their terms. 2. This Release of Construction Covenants does not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or 882/015610-0084 737414 08 a02/26/07 any insurer of a mortgage security money loaned to finance the work of construction if improvements and development of the Property, or any part hereof. 3. This Release of Construction Covenants does not denote completion of any work required to be completed, other than on the Property. 4. This Release of Construction Covenants is not a notice of completion as referred to in Section 3093 of the California Civil Code. 5. Nothing contained in this instrument shall modify in any other way any other provisions of the DDA. 882/01561M084 _'Z_ 737414 08 a02/26/07 IN WITNESS WHEREOF, the Agency has executed this Release as of the date set forth above. ATTEST: Agency Secretary LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Its: APPROVED BY DEVELOPER: LDD SILVERROCK, LLC, a Delaware limited liability company go Its: 882/015610-0084 _3_ 7374w 08 a02f26iO7 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY [TO BE ATTACHED] 88VO15610-0084 _4_ 737414 08 .02/26/07 STATE OF CALIFORNIA ) ) ss COUNTY OF On a Notary Public, personally appeared before me, personally known to me (or proved to me on the basis of sausraciory eviucnuu) w —, 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, a Notary Public, personally appeared personally known to me (or proved to me on the basis or sansrac2ury cviuc,w ) 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] '82/015610-0084 _5_ 737414 08 .02/26/07 ATTACHMENT NO.9 SCHEDULE OF PERFORMANCE' [See attached individual schedules for each of the (i) Boutique Hotel, (ii) Ranch Villas Development, (iii) Resort Hotel, (iv) Resort Retail Village Development, (v) Black Box, (vi) Lake Casitas Development, and (vi) Golf Casitas Development] This Schedule of Performance describes each of the Ranch Villas Development, Resort Retail Village Development, Black Box, Lake Casitas Development, and Golf Casitas Development as constructed in a single phase. In the event Developer desires to construct the foregoing Phases of Development in more than one phase, Developer shall submit to the Executive Director and obtain his or her approval of, a Phasing Plan. ' All days are calendar days in this Schedule of Performance. 88V015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR BOUTIQUE HOTEL 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR BOUTIQUE HOTEL Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. and Agency open Escrow. Within 10 days after Effective Date. -Developer 3. Developer's submission of complete Site Within 4 months after Effective Date of DDA. Development Permit Application "SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 4. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. CI 6. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 8. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 9. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA Commission. ]0. Ci 's issuance of SDPA and conditions. Within 7 days after approval b City Council. 11. Developer's preparation of final grading Within 180 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Boutique Hotel. 12. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Design/Construction Development Drawings for Boutique Hotel. Boutique Hotel. 13. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Boutique Hotel. 14. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 182/015610-0084 737414 08 a02/26/07 Item of Performance Time for Completion 15. Developer conducts its inspections of Not later than 30 days prior to scheduled date physical and environmental condition of Closing. 1from property and procures commercial general liabilityinsurance. 16. Agency response to Developer as to City Within 7 days after receipt of final comments comments on final grading plans and City. Design/Construction Development Drawin s. 17. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to an submittal within 7 days. 18. Developer obtains bids for construction of Within 1 month after City approves final grading the Boutique Hotel. plans and Design/Construction Development Drawings. 19. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the City Declaration of CC&Rs, Option Agreement, Grant Deed, Water Agreement, Maintenance Agreement, Memorandum of DDA, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each paq is responsible to pa. 20. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Boutique Hotel Parcel. 21. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Boutique Hotel Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 20 months after the Effective Date; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 22. Developer pulls grading permit for Within 15 days after Close of Escrow. Boutique Hotel and commences grading 23. Developer pulls building permit for Within 15 days after Close of Escrow. Boutique Hotel and commences building. 24. Developer commences construction of Within 60 days after Close of Escrow. Boutique Hotel. 882/015610-0084 -2_ 737414 08 02/26/07 Item of Performance Time for Completion 25. Developer submits Developer CC&Rs to Within 90 days prior to anticipated date for City's Agency for approval. issuance of first temporary or final certificate of occu anc for Bouti ue Hotel. 26. Agency reviews Developer CC&Rs. Within 30 days after submittal. 27. Developer's completion of Phase One of Within 24 months after commencement of Boutique Hotel. construction for Boutique Hotel. 28. Developer's completion of Boutique Hotel. Within 36 months after commencement of construction for Boutique Hotel. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 737414 08 a02126/07 SCHEDULE OF PERFORMANCE FOR RANCH VILLAS DEVELOPMENT 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR RANCH VILLAS DEVELOPMENT Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. Devetoper and Agency open Escrow. Within 10 days after Effective Date. 3. Developer's submission of complete Site Within 6 months after date City provides Developer Development Permit Application "SDPA", with Agency's Ranch Villas Parcel Vacation Notice. which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 4. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. City. 6. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 8. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 9. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA Commission. 10. Ci 's issuance of SDPA and conditions. Within 7 da s after approval by City Council. 11. Developer's preparation of final grading Within 180 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Ranch Villas Development. 12. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Ranch Design/Construction Development Drawings for Villas Develo ment. Ranch Villas Development. 13. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Ranch Villas Development. 14. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 882101561M084 737414 08 .02/26/07 Item of Performance Time for Completion 15. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 16. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 17. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 days. 18. Developer obtains bids for construction of Within 1 month after City approves final grading the Ranch Villas Development. plans and Design/Construction Development Drawings. 19. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the City Declaration of CC&Rs, Option Agreement, Grant Deed, Water Agreement, Maintenance Agreement, Memorandum of DDA, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is responsible to pay. 20. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Ranch Villas Development Parcel. 21. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Ranch Villas Development Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 20 months after the Effective Date; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 22. Developer pulls grading permit for Ranch Within 15 days after Close of Escrow. Villas Development and commences izradiniz 23. Developer pulls building permit for Ranch Within 15 days after Close of Escrow. Villas Development and commences build* n . 24. Developer commences construction of Within 60 days after Close of Escrow. Ranch Villas Development. 882/015610-0084 _ 737414 08 a02/26/07 -3 Item of Performance Time for Completion 25. Developer submits Developer CC&Rs to Within 90 days prior to anticipated date for City's Agency for approval. issuance of temporary or final certificate of occupancy. 26. Agency reviews Developer CC&Rs. Within 30 days after submittal. 27. Developer's completion of Ranch Villas Within 24 months after commencement of Development. I construction for Ranch Villas Development. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 _ 737414 08 a02/26/07 _4 SCHEDULE OF PERFORMANCE FOR RESORT HOTEL 882/015610-0084 737414,08 a02i26/07 SCHEDULE OF PERFORMANCE FOR RESORT HOTEL Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. Developer and Agency open Escrow. Within 10 days after the Effective Date. 3. Developer's submission of (i) complete Within 8 months after Closing for Boutique Hotel Site Development Permit Application Parcel. "SDPA", which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan and (ii) preliminary site plan that depicts uses and building massing for the Resort Retail Village Development, and depicts the integration of the Resort Hotel with the Resort Retail Village Development. 4. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. City. 6. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 8. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 9. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA Commission. 10. City's issuance of SDPA and conditions. Within 7 days after approval by City Council. 11. Developer's preparation of final grading Within 240 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Resort Hotel. 12. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Resort Design/Construction Development Drawings for Hotel. Resort Hotel. 13. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Resort Hotel. 882/015610-0084 _ 737414 08 02126M _I Item of Performance Time for Completion 14. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 15. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 16. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 17. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 da s. 18. Developer obtains bids for construction of Within 2 months after City approves final grading the Resort Hotel. plans and Design/Construction Development Drawings. 19. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the City Declaration of CC&Rs, Option Agreement, Grant Deed, Water Agreement, Maintenance Agreement, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is responsible to pay. 20. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Resort Hotel Parcel. 21. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Resort Hotel Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 30 months after the Closing for the Boutique Hotel Parcel; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 22. Developer pulls grading permit for Resort Within 15 days after Close of Escrow. Hotel and commences grading 23. Developer pulls building permit for Resort Within 15 days after Close of Escrow. Hotel and commences building. 882YO 15610-0084 737414 08 .0226107 Item of Performance Time for Completion 24. Developer commences construction of Within 60 days after Close of Escrow. Resort Hotel. 25. Developer submits Developer CC&Rs to Within 90 days prior to anticipated date for City's Agency for approval. issuance of first temporary or final certificate of occupancy for Resort Hotel. 26. Agency reviews Developer CC&Rs. Within 30 days after submittal. 27. Developer's completion of Phase One of Within 24 months after commencement of Resort Hotel. construction for Resort Hotel. 28. Developer's completion of Phase One of Within 36 months after commencement of Resort Hotel. construction for Resort Hotel. 29. Developer's completion of Resort Hotel. Within 36 months after commencement of construction for Resort Hotel. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR RESORT RETAIL VILLAGE DEVELOPMENT 882/015610-0084 737414 08 a0226/07 SCHEDULE OF PERFORMANCE FOR RESORT RETAIL VILLAGE DEVELOPMENT Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. Developer and Agency open Escrow. Within 10 days after Effective Date. 3. Developer's submission of preliminary site At the time Developer submits complete Site plan that depicts uses and building Development Permit Application for Resort Hotel. massing, and depicts the integration of the Resort Hotel with the Resort Retail Village Development. 4. Developer's submission of complete Site Within 16 months after Closing for Boutique Hotel Development Permit Application "SDPA", Parcel. which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 5. Review of SDPA by all applicable City" Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 6. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. city. 7. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 8. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 9. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 10. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA. Commission. 11. Ci 's issuance of SDPA and conditions. Within 7 days after approval by City Council. 12. Developer's preparation of final grading Within 240 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Resort Retail Village Development. 13. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete Resort Design/Construction Development Drawings for Retail Village Develo ment. Resort Retail Village Development. 882/015610.0084 _ 737414 08 a02/26/07 I Item of Performance Time for Completion 14. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Resort Retail Village Development. 15. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 16. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 17. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 18. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 days. 19. Developer obtains bids for construction of Within 2 months after City approves final grading the Resort Retail Village Development. plans and Design/Construction Development Drawings. 20. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow either (as applicable) (i) the Option Agreement, Grant Deed, Water Agreement, and Maintenance Agreement, or (ii) the Resort Retail Village Parcel Ground Lease, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is res onsible to vay. 21. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price or initial leasehold payment (as applicable) for the Resort Retail Village Parcel. 982/015610-0084 _ 737414 08 a02/26/07 _2 Item of Performance Time for Completion 22. Escrow closes and Developer acquires fee After completion of Items 1-21 and the satisfaction or title or a leasehold interest (as applicable) waiver of all of Agency's Conditions Precedent to the to Resort Retail Village Parcel. Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 42 months after the Closing for the Boutique Hotel Parcel; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 23. Developer pulls grading permit for Resort Within 15 days after Close of Escrow. Retail Village Development and commences grading 24. Developer pulls building permit for Resort Within 15 days after Close of Escrow. Retail Village Development and commences building. 25. Developer commences construction of Within 60 days after Close of Escrow. Resort Retail Village Development. 26. Developer's completion of Resort Retail Within 18 months after commencement of Village Development. construction for Resort Retail Village Development. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR BLACK BOX 8821015610-0084 737414,08 .0226/07 SCHEDULE OF PERFORMANCE FOR BLACK BOX Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. Developer and Agency open Escrow. Within 10 days after Closing for Boutique Hotel Parcel. 3. Developer's submission of funding Within 8 months after Closing for Boutique Hotel development and operation plan for Black Parcel. Box ("Black Box Plan"). 4. Review of Black Box Plan by City and Agency will review and will use reasonable efforts to Agency. cause City to review within 30 days of Developer's submittal of Black Box Plan. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from and Agency comments on Black Box Plan. City. 6. Agency, City and Developer responses. Developer will respond to any request within 14 days and Agency will respond and will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Developer's submission of complete Site Within 6 months after Closing for Boutique Hotel Development Permit Application "SDPA", Parcel. which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 8. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 9. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. city. 10. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 11. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 12. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 13. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA. Commission. 14. Ci 's issuance of SDPA and conditions. Within 7 da s after approval by City Council. 882/015610.0084 _ 1 737414 08 a02/26/07 Item of Performance Time for Completion 15. Developer's preparation of final grading Within 240 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Black Box. 16. Developer's submission of (i) evidence of Within 20 days after Developer's completion of financing necessary to complete the Black Design/Construction Development Drawings for Box and (ii) management and operation Black Box. plan, including proposed transfer of Black Box to the City or a non-profit public benefit corporation approved by the Ci 17. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing and Developer's management and operation evidence of financing for Black Box and of plan. Developer's management and operation plan. 18. Review of management and operation plan Agency will review and will use reasonable efforts to by City and Agency. cause City to review within 30 days of Developer's submittal. 19. Agency response to Developer as to City Developer will respond to any request within 14 days and Agency comments on management and and Agency will respond and will use reasonable operation plan. efforts to cause City to respond to any submission within 14 days. 20. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 21. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 22. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 23. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 days. 24. Developer obtains bids for construction of Within 2 months after City approves final grading the Black Box. plans and Design/Construction Development Drawings. 25. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the Option Agreement, Grant Deed, Water Agreement, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is responsible to pay. 882/015610-0084 _ 737414 08 a02/26/07 _Z Item of Performance Time for Completion 26. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Black Box Parcel. 27. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Black Box Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 30 months after the Closing for the Boutique Hotel Parcel; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 28. Developer pulls grading permit for Black Within 15 days after Close of Escrow. Box and commences grading 29. Developer pulls building permit for Black Within 15 days after Close of Escrow. Box and commences building. 30. Developer commences construction of Within 60 days after Close of Escrow. Black Box. 31. Developer's completion of Black Box. Within 24 months after commencement of construction for Black Box. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR LAKE CASITAS DEVELOPMENT 882/015610-0084 737414 09 .02/26/07 SCHEDULE OF PERFORMANCE FOR LAKE CASITAS DEVELOPMENT Item of Performance Time for Com letion l . Developer execution of DDA. Prior to Agency's approval of final draft. 2. Developer and Agency open Escrow. Within 10 days after Effective Date. 3. Developer's submission of complete Site Within 19 months after Closing for Boutique Hotel Development Permit Application "SDPA", Parcel. which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 4. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. Ci 6. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 8. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 9. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA. Commission. 10. City's issuance of SDPA and conditions. Within 7 days after approval by City Council. 11. Developer's preparation of final grading Within 180 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Lake Casitas Development. 12. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Lake Design/Construction Development Drawings for Lake Casitas Development. Casitas Development. 13. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Lake Casitas Development. 14. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* de artments. 882/015610-0084 _ 737414 08 a02/26/07 l Item of Performance Time for Completion 15. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 16. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 17. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 days. 18. Developer obtains bids for construction of Within I month after City approves final grading the Lake Casitas Development. plans and Design/Construction Development Drawings. 19. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the City Declaration of CC&Rs, Option Agreement, Grant Deed, Water Agreement, Maintenance Agreement, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is responsible to IiM. 20. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Lake Casitas Development Parcel. 21. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Lake Casitas Development Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 42 months after the Closing for the Boutique Hotel Parcel; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 22. Developer pulls grading permit for Lake Within 15 days after Close of Escrow. Casitas Development and commences radin 23. Developer pulls building permit for Lake Within 15 days after Close of Escrow. Casitas Development and commences b11ildin . 24. Developer commences construction of Within �days�Close�Escrow. Lake Casitas Development. 8821015610-0084 737414 08 a02/26/07 Item of Performance Time for Completion 25. Developer submits Developer CC&Rs to Within 90 days prior to anticipated date for City's Agency for approval. issuance of first temporary or final certificate of occu anc for Lake Casitas Development. 26. Agency reviews Developer CC&Rs. Within 30 days after submittal. 27. Developer's completion of Lake Casitas Within 24 months after commencement of Development. I construction for Lake Casitas Development. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 882/015610-0084 737414.08 a02/26/07 SCHEDULE OF PERFORMANCE FOR GOLF CASITAS DEVELOPMENT 882/015610-0084 737414 08 a02/26/07 SCHEDULE OF PERFORMANCE FOR GOLF CASITAS DEVELOPMENT Item of Performance Time for Completion 1. Developer execution of DDA. Prior to Agency's approval of final draft. 2. Developer and A ency open Escrow. Within 10 days after Effective Date. 3. Developer's submission of complete Site Within 25 months after Closing for Boutique Hotel Development Permit Application "SDPA", Parcel. which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Preliminary Grading Plan 4. Review of SDPA by all applicable City* Agency will use reasonable efforts to cause such departments. review within 45 days after Developer's submission of SDPA. 5. Agency response to Developer as to City Within 14 days after receipt of final comments from comments on SDPA. city. 6. Developer and City responses. Developer will respond to any request within 14 days and Agency will use reasonable efforts to cause City to respond to any submission within 14 days. 7. Agency publishes Notice of Public Hearing Within 10 days after Developer responds to all of for SDPA before the Planning City's comments in the preceding section. Commission. 8. Planning Commission Public Hearing and Approximately 10 days after publication. consideration of SDPA. 9. City Council Public Hearing and Approximately 30 days after approval by Planning consideration of SDPA. Commission. 10. City's issuance of SDPA and conditions. Within 7 days after approval by City Council. IL Developer's preparation of final grading Within 180 days after City's issuance of SDPA. plans and Design/Construction Development Drawings for Golf Casitas Development. 12. Developer's submission of evidence of Within 20 days after Developer's completion of financing necessary to complete the Golf Design/Construction Development Drawings for Golf Casitas Development. Casitas Development. 13. Agency review and approval, approval with Within 30 days after Agency's receipt of evidence of conditions, or denial of Developer's financing. evidence of financing for Golf Casitas Development. 14. Review of final grading plans and Agency will use reasonable efforts to cause such Design/Construction Development review within 45 days after Developer's submittal. Drawings by all applicable City* departments. 882/015610-0084 _ l 737414 08 a02/26/07 Item of Performance Time for Completion 15. Developer conducts its inspections of Not later than 30 days prior to scheduled date for physical and environmental condition of Closing. property and procures commercial general liability insurance. 16. Agency response to Developer as to City Within 7 days after receipt of final comments from comments on final grading plans and City. Design/Construction Development Drawings. 17. Developer and City responses. Developer will respond to any request within 15 days and Agency will use reasonable efforts to cause City to respond to any submittal within 7 days. 18. Developer obtains bids for construction of Within 1 month after City approves final grading the Golf Casitas Development. plans and Design/Construction Development Drawings. 19. Developer and Agency execute and deposit Three (3) days prior to the scheduled Closing Date. into escrow the City Declaration of CC&Rs, Option Agreement, Grant Deed, Water Agreement, Maintenance Agreement, and all additional funds and documents required under this Agreement in order to close the Escrow, including the closing costs for which each party is responsible to pay. 20. Developer deposits into Escrow the Three (3) days prior to the scheduled Closing Date. Purchase Price for the Golf Casitas Parcel. 21. Escrow closes and Developer acquires fee After completion of Items 1-20 and the satisfaction or title to Golf Casitas Parcel. waiver of all of Agency's Conditions Precedent to the Closing and Developer's Conditions Precedent to the Closing, but in no event later than the date that is 48 months after the Closing for the Boutique Hotel Parcel; provided, however, that (i) the Executive Director of the Agency may extend such date by up to six (6) additional months, pursuant to Section 202.5, and (ii) if the Agency's or City's review time in any of the foregoing Items exceeds the time allotted for such review, then such date shall automatically be extended by the number of days by which the Agency or City exceeded its allotted time. 22. Developer pulls grading permit for Golf Within 15 days after Close of Escrow. Casitas Development and commences radio 23. Developer pulls building permit for Golf Within 15 days after Close of Escrow. Casitas Development and commences building. 24. Developer commences construction of Golf Within 60 days after Close of Escrow. Casitas Development. 882/015610-0084 _ 737414 08 AY26/07 _2 Item of Performance Time for Com letion 25. Developer submits Developer CC&Rs to Within 90 days prior to anticipated date for City's Agency for approval. issuance of first temporary or final certificate of occu anc for Golf Casitas Development. 26. Agency reviews Developer CC&Rs. Within 30 days after submittal. 27. Developer's completion of Golf Casitas Within 24 months after commencement of Development. construction for Golf Casitas Development. * Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. 892/015610-0084 737414 08 a02/26/07 ATTACHMENT NO. 10 MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT 882/015610.0084 737414 08 a02/26/07 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Executive Director (Space Above For Recorder's Use) This Memorandum of Disposition and Development Agreement is recorded at the request and for the benefit of the La Quinta Redevelopment Agency and is exempt from the payment of a recording fee pursuant to Government Code § 27383. MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT This MEMORANDUM OF DISPOSITION AND DEVELOPMENT AGREEMENT ("Memorandum") is entered into this _ day of , _, by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LDD SILVERROCK, LLC, a Delaware limited liability company ("LDD"). This Memorandum is made with reference to the following: 1. On or about December 18, 2006, Agency and LDD entered into that certain Disposition and Development Agreement (the "Agreement") which provides for (i) Agency to sell to LDD that certain real property located in the City of La Quinta, County of Riverside, State of California, more particularly described in the legal description attached hereto as Exhibit "A" and incorporated herein by this reference (the "Property"), and (ii) LDD to develop and operate on the Property a luxury hotel with related amenities. The definitions of all terms contained in the Agreement shall apply to this Memorandum. 2. On or about the date of this Memorandum, LDD acquired from Agency fee title to a portion of the Property. 3. The Agreement provides for Agency and LDD to enter into this Memorandum and to record the same in the Official Records of the County of Riverside to provide notice to all persons of the existence of said Agreement and to cause the Agreement to run with the Property and be binding on LDD and LDD's successors -in -interest as to the Property. 4. This Memorandum may be executed in several counterparts, and all so executed shall constitute one agreement binding on both parties hereto, notwithstanding that both parties are not signatories to the original or the same counterpart. 882/015610-0084 737414 08 .02/26/07 IN WITNESS WHEREOF, Agency and LDD have entered into this Memorandum as of the date first set forth above. ATTEST: Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Its: Executive Director "LDD" LDD SILVERROCK, LLC, a Delaware limited liability company IN Its: 882/015610-0084 737414 08 a02/26?07 STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On , before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 RIVERSIDE ) On before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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] "2/015610-00a4 737414 08 a02126107 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY 88V015610.0084 737414 08 a02Q6M ATTACHMENT NO. 11 PARCEL MAP [See following pages] 882/015610-0084 737414 08 a02/26/07 Yi i ; li I 1989���81°11�°a1111119°B11i3B919I1 11 xl x! dd h I i4E 1 I 60 ifi' 19 I! iiiiE as a °°aaa I ll1' ( 9• �;� 1 HIM r11 Itj fillIlQ f ii ciei�jeiei11111 1' � 4 ! i! T1 i11 �' '° a► jjeleQQQQe Qlaiiiih! 9,99�9980'A999!Q9tl 1 l ;l 4 ,111011 ! a14444� �ii►!! illy t;1 ! 11 1 fill. Q !° � {Y! ! I ! {i ! /4 � ►1• � {4i � {Y �{����� a � 99999999ff99f ff 99999999999999ff9 Yl ;! I .• ► f14�4>•4>f4FF>I411 •'1���9re., TI\IS ),VMV301H Ni Il I ate:aa �c r _ZL 99 1 � Y �Y►.'�I r Oil► a '�� � �' -s ! .a J9Y �i s �"' N .•w i if 1 a�f�H p r�w'm 3 "#) AU3 SM I 9 ATTACHMENT NO. 12 FOUR STAR QUALITY REQUIREMENTS Four -Star Quality under this agreement indicates an outstanding hotel providing the guest with a luxury experience in a distinctive setting, including expanded amenities and exceptional service. Guests can expect an exceptional experience, where no less than ninety five (95) percent of the following detailed characteristics are consistently met or exceeded. Except as provided in the following two paragraphs, the detailed characteristics list below applies in its entirety to all components of the Project, including, without limitation, all of the Units and all other facilities and amenities (including the spa, fitness facility, restaurants, etc.) to be developed on the Property. Certain of the detailed characteristics shall not apply to Condominium Hotel Units or Fractional Units located in "casita" buildings, and such characteristics are preceded by an asterisk (*). For purposes of this Agreement, the term "casita" building shall refer to a hotel building that is not the main hotel building on the Boutique Hotel Parcel or the Resort Hotel Parcel. Subject to the immediately following paragraph, Condominium Hotel Units and Fractional Units in casita buildings shall be required to comply with all of the detailed characteristics other than those characteristics preceded by an asterisk. Certain of the detailed characteristics shall not apply to Fractional Units, and such characteristics are preceded by a double asterisk (**). Fractional Units shall be required to comply with all of the detailed characteristics other than those characteristics preceded by a single or double asterisk. Services Detail Staff is well-groomed with professional, neat and well -maintained attire. All staff encountered are pleasant and professional in their demeanor. Front desk staff are articulate, smile and make eye contact. (**)The front desk is staffed twenty-four hours. (**)Restaurant on -site serving three meals daily. Valet parking is available. Baggage assistance is automatic. (*)Complimentary newspapers are delivered to room automatically. (**)Complete room service is available. (**)Workstation is available where guest can access Internet. (**)Basic fitness equipment is provided, including treadmills and cycles. Written confirmation is automatic or offered, either by mail, fax or e-mail. Guests name is used effectively, but discreetly, as a signal of recognition. The time from arriving at the reception area until registration is complete does not exceed five minutes (includes queuing). Bed is plush and inviting with oversized or numerous pillows. Bedcovers are elegant and stylish and with linens of exceptional quality and comfort. 892/015610-0084 737414 08 a02/26/07 • All written information is provided on good quality paper or pads, custom -printed or logoed. • Bathroom presentation and placement of amenities and linens is thoughtful, careful, and elegant. (*)Fresh ice is provided during evening service or at another time during the day. (**)Turndown service is automatically provided. (**)During turndown service, guest clothing is neatly handled and guest toiletries are neatly arranged and displayed on a cloth or shelf. (**)Room service is delivered within 30 minutes. • Room service order is delivered within five minutes of quoted time. (*)Two hour pressing available • (*)Same day laundry and dry cleaning is available seven days/week. • Wake-up call is personalized with guest's name and time of day. Wake-up call is delivered within two minutes of requested time. (**)Special service desk identified as concierge/guest service is situated apart from reception/front desk. If spa services are present, treatments are begun and ended on schedule, within five minutes of expected or booked time. If spa services are present, during treatment, therapist appears to be genuinely expert, moving seamlessly through the treatment as described and expected. Facilities Details Self parking area is free of debris, good condition; surfaces, curbs, paths. All outdoor walkways and approaches are well -maintained and cleaned. • Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition. Public spaces are free of obvious hazards. Elevator landings, cars and doors/tracks are clean and in good condition. • Guest room corridor floors, walls and ceilings are free of debris, marks, and damage. All furniture, fixtures and equipment are clean, neat and well -maintained. Ashtrays throughout public areas are well -maintained and free of excessive debris. Temperature in all interior public areas are maintained in general comfort range. • Public washrooms very hygienic and neat, with well -stocked paper and soap. • Public washroom fixtures, walls and floors are in very good condition. • Meeting rooms are well -signed so that it is easy to find and arrive at a specific room. • Meeting room doors are in good condition, free of nicks and damage. Meeting room interiors are in generally good condition, including walls, floors and ceiling. Lobby provides a comfortable seating area. • Lobby floors, walls and ceiling are free of debris, marks and damage. Lobby areas feature elegant live plants and/or fresh floral displays. Notices are professional, matching decor, not "homemade". (*)Vending and/or ice machines are located on each guest floor. (**)Vending and/or ice areas and equipment are clean, well -lit, and well -maintained. • Service doors are clean, free of marks and damage, and closed. (**)A variety of different sized and appointed rooms available in hotel. 882/015610-0084 737414 08 a02/26/07 (**)High quality, varied, and major brand sundry selections are available in an on -site store. (**)Suite (separate bedroom and living areas) accommodations are available. (**)A dedicated and secure luggage storage area is available. Public phones are convenient, and equipped with seats, privacy panels and pad/pens. • Public washrooms are furnished with upgraded materials and appointments/luxurious design. Televisions feature premium cable TV (two movie channels, two all -news, two financial). Pay -Movie selections are available through television. (*)Guest room telephones have two lines. Guest rooms equipped with data ports (guest can connect laptop to the Internet). • Direct dial phones with direct long distance dialing are available in each guest room. If public phonebook present, it is displayed in attractive cover. Guest Room Detail • Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good condition. Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc. Walls and ceilings are free of marks, stains and damage. Drapes are free of stains, damage; pull easily and hang properly. Furniture is free of dust, marks and damage. All printed material including collateral, phonebooks and stationery are neat, crisp and current. Drawers and shelves are clean, free of dust and debris. All light bulbs operate; all light fixtures and lamps are in good condition, clean. • Mirrors and windows are free of smudges and damage throughout. If safe is provided, it is clean, functional and convenient. • Room equipped with accurate, functional clock and radio/stereo. • Color television works and is equipped with remote control, and is minimum 19". All bedding and linens are free of debris, hairs, damage and stains. Room heating and air conditioning is easily controlled by guest and is quiet. Air is fresh and clean, no stuffiness or odors. • Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration. • Bathroom the and grouting is clean, not discolored, cracked or mildewed. Faucets and drains operate smoothly and easily. Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath towel. • If robes are provided, they are free of spots, stains and loose threads. Guest room door and frame free of marks, scratches and scuffs. (*)Comfortable seating for two people (other than bed) (exemption only applies to Units in Lock -Off suites specifically designed as smaller sleeping quarters; otherwise this item is required in all accommodations designed as single hotel rooms and hotel room Lock - Off Units). • Guest service directory, pad and pen/pencil present and conveniently placed. Enclosed closets (means closets must have doors). There are three spacious drawers or enclosed shelves (inside closet). 882/015610-0084 737414 08 a02/26/07 A Luggage rack or bench provided; and adequate space to leave suitcase. Extra clean and hygienic blanket and pillow provided in room. Lighting throughout the room is adequate. The room can be fully darkened. (**)Full-length mirror present in room. A hairdryer present in room, clean and functional. (**)Each guest room has two phones (one could be in the bathroom). Comfortable desk and chair are available for working, complete with telephone, data port, and light. Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are present in room. (**)Minibar is present (defined as selection of several beverages and snacks). It is non auto -charge, and premium products are attractively displayed. (**)Minibar is hygienic, free of spills and damage, all products are sealed, price list present. If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available. Pillows are plush and full, no foam. Framed artwork or interesting architectural features exist in room. Excellent lighting is provided in bathroom for makeup and shaving. Hygienic soap, shampoo and four other bath amenities are provided. Amenities are presented attractively, thoughtfully (not simply lined up on counter). Towels are of absorbent quality, with soft nap and no discoloration. Towels are free of spots, stains, tears and obvious frays. Guest room is of generous size, and provides ample seating for more than two persons. (**)Selection of at least 10 hangers including a variety of bars, clips and padded. (**)In -room safe is present. Bed is triple sheeted or features washable duvets. (*)Live plants are present in guest rooms. Shaving/makeup, lighted magnifying mirror is present. Specialized Facility Detail Pool/beach furniture is clean, hygienic and well -maintained. Pool deck or beach/sand is clean and free of excessive debris. Pool deck and tiling are in good condition, free of excessive damage or wear. Pool water is clean, free of debris and free of notable odors. Pool fittings and equipment (ladders, dive boards) are secure and in good condition. If tennis exists on site under same management, court surfaces are in good condition, free of damage and well -marked. Tennis courts and surrounding areas are clean and free of debris. Fixtures, nets, lights, fences are well -maintained and good condition. If golf exists on site under same management, pro shop/clubhouse interior are clean and well -maintained; displays and counters neat and tidy. Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance. Golf carts are clean, well -organized and maintained. Rental equipment is clean and good condition, including bags. (**)Guest can pick up e-mail and access the Internet from a Business Center workstation. 882/015610-0084 _ 737414 08 a02/26/07 -4 (**)Business Center working areas are clean, tidy and professional. • (**)Comfortable office -style chairs at the Business Center guest workstations. All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained. (**)Spa reception area is well-defined, neat and professional. • Fitness equipment is clean, in very good condition, conveniently laid out. Fitness/workout area is well -ventilated, with comfortable temperature. • Fitness equipment is available with personal headphones/televisions. Sound system or television provided in fitness/workout areas. Towels are provided in locker and fitness areas. • Grooming area equipped with hairdryers; soap and shampoo conveniently placed. • All amenities are neatly and professionally presented; very hygienic. Locker room, showers, sauna and hot tub extremely clean, hygienic appearance. • If Business Center is present, a semi -private working area with workstation and telephone is available for guests. • If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes, and they are clean and in good condition. If spa or fitness center exists on site, complimentary amenities to include body lotion, shower caps, talc/deodorant and combs. • If spa exists on site, at least two types of massage and either body treatments or facials are also offered. If tennis is available on site, water is available courtside. If pool or beach service is present, ample towels are available poolside or at the beach. • Current newspapers and national -title magazines are provided in fitness and locker areas. • If spa, treatment rooms are equipped with individually controlled temperature and sound systems. 882/01561 M084 _ 737414 08 a02/26/07 -5 ATTACHMENT NO. 13 DEPICTION OF PUBLIC IMPROVEMENTS [See following pages] 882/015610-0084 737414.08 a02/26/07 14 I'll: U'Y Oi ..A QJNIA Wd" 0 TrYLROL, StAIL W VUO'iYN REVISED TENTATIVE PARCEL MAP NO. 33367 C r IA v __ •In 1 1 —r"a Ty THE G:g1U5 � 4 y s,J4ed�e\. rc: �. AVENUE 52 rl n I 4. w lm, %= � of w 7 EXHIBIT "B" LIST OF PUBLIC IMPROVEMENTS The following areas depicted on Exhibit "S' shall be subject to a Maintenance Agreement: 1. The north and south areas adjacent to Lot "F" (main entry roadway) between Jefferson Street and the intersection of Lots 'G" and "H". 2. The west portion of Lot "H", south of the main entry and adjacent to Lots 3, 4, and 5. 3. Both sides of Lot "G" adjacent to Lots 3, 11, and 23. 4. The entirety of Lot 'I" adjacent to Lot 11 5. All lake frontage adjacent to Lots 3, 5, 11, 19, and 23. ATTACHMENT NO. 14 LIST OF AUTHORIZED MANAGERS 1. Tishman Hotel Corporation 2. Rosewood Hotels and Resorts, LLC 3. Gemstone Resorts International, LLC 4. Noble House Hotels and Resorts 5. Intercontinental Hotels Group 6. Marriott International, Inc. 7. Starwood Hotels and Resorts Worldwide, Inc. 8. Global Hyatt Corporation 9. Fairmont Raffles Holdings 10. Four Seasons Hotels, Inc. 11. Loews Corporation 12. West Paces Hotel Group 13. Mandarin Oriental Hotel Group 14. The Hong Kong and Shanghai Hotels 15. Vail Resorts, Inc. 16. Hilton Hotels Corporation 17. Ritz Carlton Hotel Company, LLC 18. Kimpton Hotel and Restaurant Group, LLC 882/015610-0084 737414 08 a02/26/07 ATTACHMENT NO. 15 FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT [See following document] 882/015610-0084 737414 08 .02/26/07 ASSIGNMENT AND ASSUMPTION OF DISPOSITION AND DEVELOPMENT AGREEMENT This Assignment and Assumption of Disposition and Development Agreement (this "Assignment") is executed by LDD SILVER ROCK, LLC, a Delaware limited liability company ("Owner"), in favor of a ("Assignee") as of the _ day of , 200, with reference to the following facts: A. Owner and the La Quinta Redevelopment Agency, a public body, corporate and politic, have entered into that certain Disposition and Development Agreement dated as of (the "DDA"). B. Owner now desires to assign and transfer to Assignee, and Assignee desires to accept from Owner all of Owner's rights and obligations in, under and to the DDA with respect to (but only with respect to) the real property described on Exhibit A attached hereto. THEREFORE, Owner and Assignee agree as follows: 1. Assignment. Owner hereby assigns and transfers to Assignee all of Owner's rights in, under and to the DDA and all of Owner's obligations arising under the DDA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 2. Acceptance and Assumption. Assignee hereby accepts from Owner all of Owner's rights in, under and to the DDA and agrees to assume all of Owner's obligations arising under the DDA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 3. Further Assurances. Each party hereto hereby agrees to execute any additional documents, and take any further actions necessary to effect or evidence the assignment and assumption set forth in Sections 1 and 2 above. 4. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. 5. Miscellaneous. This Assignment shall be binding on and inure to the benefit of the parties and their respective successors and assigns. The paragraph headings of this Assignment are for convenient reference only and shall not be used in interpreting this Assignment. 6. California Law. This Assignment shall be governed by and interpreted in accordance with the internal laws of the State of California, without regard to conflict of law principles. 7. Costs of Dispute Resolution. In the event of any action or proceeding brought by any party against any other parties under this Assignment, the prevailing parties shall be entitled to recover from the non -prevailing parties all costs and expenses, including attorneys' 41082383 1 and experts' fees and expenses, in such action and proceeding in such amount as the court may adjudge reasonable. The prevailing parties shall be determined by the court based upon an assessment of which parry's major arguments made or positions taken in the proceedings could fairly be said to have prevailed over the other parties' major arguments or positions on major disputed issues. [SIGNATURES INCLUDED ON FOLLOWING PAGE] 41082383 1 IN WITNESS WHEREOF, Owner and Assignee have executed this Assignment as of the date and year first above written. "OWNER" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: "ASSIGNEE" a By: Its: 41082383.1 Exhibit A Legal Description of Real Property Affected by Assignment and Assumption [See Attached] Exhibit A 41082383 1 EXTENSION TO APPROVE TITLE �T,h' Extension to Approve Title ("Extension") is made and entered into as of theoirnZ day/05 y` ,°t� ' 2007, by and between LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS A. WHEREAS, Agency and Developer have entered into that certain Disposition and Development Agreement dated December 19, 2006 ("Agreement") for, among other things, Developer to purchase and develop that certain real property located at the southeast intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 (the "Property")- B. WHEREAS, Section 203 of the Agreement provides that Developer shall have until the date (the "Title Deadline") that is thirty (30) days after the later of (i) the date of its receipt of the Preliminary Title Report, or (ii) the date Developer receives the documents underlying the Property Exceptions, to'give written notice to Agency and Escrow Holder of Developer's approval or disapproval of any Property Exceptions ("Title Notice"). C. WHEREAS, the Title Deadline is Wednesday, April 18, 2007 D. WHEREAS, Developer and Agency would like to extend the Title Deadline for an additional thirty (30) days, to May 18, 2007. E. WHEREAS, Section 705 of the Agreement grants the Agency Executive Director the authority to extend the Title Deadline. NOW THEREFORE, effective as of the date hereof, it is mutually agreed between Agency and Developer as follows: 1. The Title Deadline is extended for thirty (30) additional days and shall now expire at midnight on Friday, May 18, 2007. 2. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement. 3. Except as otherwise expressly stated herein, the Agreement, including, without limitation, all of the timeframes set forth in the Schedule of Performance, shall remain unchanged. The Agreement, as amended hereby, remains in full force and effect. 4. This Extension may be executed in counterparts, each of which shall be an original but all of which taken together shall constitute one instrument. 5. The Agreement, as amended by this Extension, constitutes the full and complete agreement and understanding between the parties hereto, and shall supersede all prior communications, representations, understandings or agreements, if any, whether oral or written, concerning the specific subject matter of this Extension. 6. Agency and the Agency Executive Director represent to Developer that the Agency Executive Director has the authority to sign this Extension on behalf of the Agency and no further or separate approval is required from the Agency Board. [SIGNATURES ON FOLLOWING PAGE] Agency and Developer have executed and agreed to this Extension as of the date first written above. AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and Bc�Y1-r.�.w Executive Director Agency Secretary APPROVED AS TO FORM: RUT TUC R, L KaM. therine Jens Agency Counsel DEVELOPER: LDD SILVERROCK, LLC, a Delaware limi4d liability company Its: 41108495.3 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Clerk DOC # 2007-0502623 08/03/2007 08:00p Fee:NC Page I of 123 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 111111111111111111111111111111111111111111111111111111 S R U PAGE I SIZE I DA MISC LONG RFD COPY M A I L 465 1 426 PCOR NCOR SM 1F NG exAM N C 80(0 (Exempt from Recording Fee per Gov't Code § 6103 and 27383) s�>T7 DEVELOPMENT AGREEMENT by and between CITY OF LA QUINTA and LDD SILVERROCK, LLC 882/015610-0084 750517 12 e0226M7 TABLE OF CONTENTS Page 2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF THE PROJECT........................................................................... 7 2.1 Right to Develop................................................................................................... 7 2.2 Additional Applicable Codes and Regulations..................................................... 8 2.3 Permitted Density, Height and Use Limitations................................................... 9 2.4 Developer Impact Fees......................................................................................... 9 3.0 DEVELOPER'S OBLIGATIONS................................................................................... 9 3.1 Development and Operation of the Project.......................................................... 9 3.2 Conditions of Approval; Mitigation Monitoring Program ................................. 12 3.3 Declaration of Covenants, Conditions and Restrictions ..................................... 12 3.4 Sign Agreements................................................................................................. 13 3.5 Maintenance Agreements................................................................................... 13 3.6 Water Agreements.............................................................................................. 14 3.7 Other Fees and Charges; Assessment Appeals...................................................14 3.8 Dedications and Improvements.......................................................................... 14 3.9 Indemnification................................................................................................... 14 3.10 Insurance............................................................................................................. 15 3.11 Transient Occupancy Tax Obligations............................................................... 17 4.0 CITY'S OBLIGATIONS............................................................................................... 17 4.1 Scope of Subsequent Review/Confirmation of Compliance Process ................. 17 4.2 Project Approvals Independent.......................................................................... 17 4.3 Review for Compliance...................................................................................... 17 5.0 DEFAULT; REMEDIES................................................................................................ 18 5.1 Notice of Default................................................................................................ 18 5.2 Cure of Default................................................................................................... 18 5.3 City Remedies ..................................................................................................... 18 5.4 Developer's Exclusive Remedy.......................................................................... 19 6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE ................................. 19 6.1 Encumbrances on the Project Site..................................................................... 19 6.2 Mortgage Protection........................................................................................... 19 6.3 Mortgagee Not Obligated................................................................................... 19 6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ........................... 20 e82/01561 750537 12 M084 a02/26/07 - --- _1 02 I IIIII IIIIIII III IIIII IIIII IIIIII III II III (IIII IIII 1111 08/0 o0r002300R Pate 7.0 TRANSFERS OF INTEREST IN SITE, AGREEMENT, OR MANAGEMENT........................................................................................................... 20 7.1 Transfers of Interest in Site, Agreement, or Management ................................. 20 7.2 Successors and Assigns...................................................................................... 22 7.3 Assignment by City............................................................................................ 23 8.0 MISCELLANEOUS .......................................................................................................23 8.1 Notices................................................................................................................23 8.2 Enforced Delay; Extension of Times of Performance ........................................ 24 8.3 Binding Effect..................................................................................................... 24 8.4 Independent Entity.............................................................................................. 24 8.5 Agreement Not to Benefit Third Parties............................................................. 24 8.6 Covenants...........................................................................................................25 8.7 Nonliability of City Officers and Employees..................................................... 25 8.8 Covenant Against Discrimination...................................................................... 25 8.9 Amendment of Agreement.................................................................................25 8.10 No Waiver........................................................................................................... 25 8.11 Severability..........................:..............................................................................26 8.12 Cooperation in Carrying Out Agreement........................................................... 26 8.13 Estoppel C'ertificate............................................................................................ 26 8.14 Construction........................................................................................................26 8.15 Recordation.........................................................................................................26 8.16 Captions and References.................................................................................... 27 8.17 Time....................................................................................................................27 8.18 Recitals & Exhibits Incorporated; Entire Agreement ......................................... 27 8.19 Exhibits...............................................................................................................27 8.20 Counterpart Signature Pages.............................................................................. 27 8.21 Authority to Execute; Representations and Warranties ...................................... 27 8.22 City Approvals and Actions............................................................................... 28 8.23 Governing Law; Litigation Matters.................................................................... 28 8.24 No Brokers .......................................................................................................... 28 2007-0502623 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 08/03/3 of 1230R "2/015610-0084 _ 750537 12 .0226/07 -I1 DEVELOPMENT AGREEMENT This Development Agreement (the "Agreement') is entered into as of the 5`h day of December, 2006 ("Reference Date"), by and between the CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the Constitution of the State of the California (the "City"), and LDD SILVERROCK, LLC, a Delaware limited liability company (the "Developer"), with reference to the following: RECITALS: A. Government Code Sections 65864-65869.5 ("Development Agreement Act') authorize the City to enter into a binding development agreement for the development of real property within its jurisdiction with persons having legal or equitable interest in such real property. B. Pursuant to Section 65865 of the Government Code, the City has adopted its Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing procedures and requirements for such development agreements ("Development Agreement Ordinance"). C. Prior to or concurrently with the execution of this Agreement, Developer has entered into a Disposition and Development Agreement (the "DDA") with the La Quinta Redevelopment Agency ("Agency"), pursuant to which (1) the Agency, subject to the terms and conditions set forth in the DDA, has agreed to sell to the Developer, in multiple phases, certain real property located within the City at the southwest intersection of Jefferson Street and Avenue 52 which is legally described in Exhibit A-1 attached hereto and shown on the Site Map attached hereto as Exhibit A-2 (the "Site"); and (2) the Developer has agreed to construct on the Site the "Project," which will consist of a commercial development, and other permitted uses. The Project is more fully described in, and subject to (i) this Agreement, (ii) the SilverRock Resort Specific Platt, also known as Specific Plan 06-080, which was amended by Resolution No. 2006-083, which resolution was duly adopted by the City Council on July 18, 2006 (the "Specific Plan"); (iii) the DDA, (iv) the Mitigated Negative Declaration prepared for the Project, approved by the Agency on May 15, 2002, by Agency Resolution 2002-09, as updated by the Addendum to Mitigated Negative Declaration, approved by the City Council on July 18, 2006, by City Council Resolution No. 2006-082 (collectively, the "Updated Mitigated Negative Declaration"); (v) any future Site Development Permits issued for the Project, including all conditions of approval attached thereto (collectively, the "Project Site Development Permits"); (vi) Parcel Map No. 33367 and any further parcel or subdivision maps to be recorded on the Site and the conditions of approval thereon; and (vii) the conditions of approval associated with each and all of the foregoing approvals (collectively, the "Conditions of Approval'). The documents, permits, approvals, and conditions described in the foregoing clauses (i)-(vii) are collectively referred to herein as the "Development Plan," and are, or when approved or issued shall be, on file with the City Clerk. D. By vixtue of the DDA, as of the execution of this Agreement, the Developer has an equitable interest in the Site. By its execution of the consent form attached to this Agreement, the Agency consents to recordation of this Agreement against the Site. 882/0-0084 7505➢I7 R a0226/07 -1 I III II IIIIIII I I IIIII IIIII IIIIII IIIIII I IIIII IIII III 08/&3 z 07 082GOA 4 of 123 E. Consistent with Section 9.250.030 of the La Quinta Municipal Code, City and Developer desire to enter into a binding agreement for purposes of (i) obligating Developer to enter into and record, against each Parcel a City Declaration of CC&Rs that sets forth certain requirements of the owners of (a) the Condominium Hotel Units to make certain resort payments if their Unit fails to generate specified levels of Transient Occupancy Tax, and (b) all of the Fractional Units to make a resort payment; (ii) requiring the Developer to enter into maintenance agreements with the Agency or City obligating the Developer to maintain certain portions of the golf course lakes located or to be located adjacent to the Site and certain landscaped parkways, sidewalks, and trails, all as depicted on Exhibit "B" hereof, which is attached hereto and incorporated herein by this reference (collectively, the "Public Improvements"); (iii) requiring the Developer to enter into water agreements and signage agreements; and (iv) setting forth the mam3er in which Developer shall construct, develop, use and operate the Project, as to those Parcels within the Site that Developer purchases or leases pursuant to the DDA. 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 if it acquires the Site in accordance with the DDA, it 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 Planning Commission and the City Council have determined that the Project and this Agreement are consistent with the City's General Plan and the Specific Plan, including the goals and objectives thereof. H. All actions taken by City have been duly taken in accordance with all applicable legal requirements, including the California Environmental Quality .Act (Public Resources Code Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings, findings, votes and other procedural matters. I. On December 5, 2006, the City Council adopted its Ordinance No. 433 approving this Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and legal sufficiency of which is hereby acknowledged, the parties do hereby agree as follows: 2007-05026�3 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 08/0�l50of 1230R 882/015510-0084 750537 12 a02/26/07 -2- 1.0 GENERAL 1.1 Term. The term of this Agreement shall commence on the Effective Date hereof and shall continue for thirty (30) years thereafter, unless said term is otherwise terminated, modified, or extended as set forth in this Agreement or by mutual consent of the parties hereto, after the satisfaction of all applicable public hearing and related procedural requirements. 1.2 Effective Date. This Agreement shall be effective, and the obligations of the parties hereunder shall be effective, as of("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. Notwithstanding the foregoing, in the event that one or more Parcels are under different ownership at some time during the Term hereof, the City and the then -owner of any Parcel may amend the terms of this Development Agreement and the Development Plan with respect to said Parcel, without obtaining the approval or consent of the owners of the other Parcels. 1.4 Termination. Unless terminated earlier, pursuant to the terms hereof, this Agreement shall M m automatically terminate and be of no further effect upon the expiration of the Term of this W Agreement as set forth in Section L L Termination of this Agreement, for any reason, shall not, m o by itself, affect any right or duty arising from entitlements or approvals set forth under the Development Plan, and shall have no effect on the obligations imposed under the City mm Declaration of CC&Rs. m Notwithstanding anything herein to the contrary, in the event the "Initial Escrow" (as that term is defined in the DDA) fails to close within the time period set forth in the DDA, as such time may be extended pursuant to the terms of the DDA, this Agreement shall automatically terminate. Within 30 days after the opening of the Initial Escrow, Developer shall deliver to the Escrow Officer, in a form acceptable to the City Attorney and the "Title Company" (as that term is defined in the DDA), a quitclaim deed, releasing of all of Developer's interest in this Agreement in a form which may be recorded (the "Quitclaim") 'in the event that the Initial Escrow fails to close within the time set forth in the DDA, as such time may be extended pursuant to the terms of the DDA (the "Initial Escrow Closing Date"). In such event, within ten (10) days after the Initial Escrow Closing Date, Developer agrees to execute and submit to the Title Company or the City joint escrow instructions authorizing the Escrow Officer to record the Quitclaim. The Developer and City agree to execute and record such additional document(s) as the Title Company reasonably requires to remove this Agreement of record. If the Initial Escrow does close, but one or more of the subsequent escrows described in the DDA fail to close within the time period set forth in the DDA, as such time may be extended 882/015610-0084 _ 750537 12 .0226/07 _3 pursuant to the terms of the DDA, this Agreement shall automatically terminate with regard to the Parcels involved in the escrow or escrows which failed to close, and Developer and City agree to execute and record such document(s) as the Title Company reasonably requires to remove this Agreement of record with respect to such Parcels. 1.5 Definitions. 1.5.1 "Agency" shall have the meaning ascribed in Recital C hereof. 1.5.2 "Assignment and Assumption Agreement' shall have the meaning ascribed in Section 7.1.3 hereof. 1.5.3 "Authorized Manager" shall have the meaning ascribed in Section 3.1 hereof. 1.5.4 "Black Box Parcel' shall mean that certain real property designated as Lot 4 on the Parcel Map. The Black Box Parcel is comprised of approximately .78 acres. 1.5.5 "Boutique Hotel Parcel' shall mean that certain real property designated as Lot 19 on the Parcel Map. The Boutique Hotel Parcel is comprised of approximately 13.79 acres. The Boutique Hotel Parcel may be subdivided into two or more legal parcels after the Effective Date. In such event, when used herein, the terms `Boutique Hotel Parcel' shall refer to all such legal parcels. 1.5.6 "City" shall mean the City of La Quinta, a California municipal corporation and charter city organized and existing under the Constitution of the State of California. 1.5.7 "City Declaration of CC&Rs" shall have the meaning ascribed in Section 3.3.1 hereof. 1.5.8 "Conditions of Approval' shall have the meaning ascribed in Recital C hereof. 1.5.9 "Condominium Hotel Unit' or "CHU" means a Unit which is sold to a third party owner, but which, when not in use by such owner, is part of the inventory of rooms available for transient occupancy within the Project. 1.5.10 "CVWD" shall have the meaning ascribed in Section 3.6 hereof. 1.5.11 "DDA" shall have the meaning ascribed in Recital C hereof. 1.5.12 "Developer" shall mean LDD SilverRock, LLC, a Delaware limited liability company. hereof. 1.5.13 "Developer CC&Rs" shall have the meaning ascribed in Section 3.3.2 IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIII IIII IIII 08/0007 ef002300R 882/015610-0084 _4_ 750537.12 a02/26,07 1.5.14 "Development Agreement Act" shall have the meaning ascribed in Recital A hereof. 1.5.15 "Development Agreement Ordinance" shall have the meaning ascribed in Recital B hereof. hereof. 1.5.16 "Development Plan" shall have the meaning ascribed in Recital C 1.5.1 i' "DHR" shall have the meaning ascribed in Section 3.1 hereof. 1.5.18 "Effective Date" shall have the meaning ascribed in Section 1.2 hereof. 1.5.19 "Existing Development Regulations" shall have the meaning ascribed in Section 2.1 hereof. 1.5.20 "Fee Transfer Release Date" shall have the meaning ascribed in Section 7.1.1 hereof. 1.5.211 "Four Star Quality" means that the applicable component of the Project offers and provides the services, facilities and amenities listed in Exhibit "C", which is attached hereto and incorporated herein by this reference. 1.5.22 "Fractional Unit" means a Unit that is either (a) a condominium, the ownership of which is divided into multiple fractional interests, including, without limitation, timeshare interests, each of which can be owned by separate owners or by the same owner, and each of which gives such owner the right to use such Unit for a different period of time; or (b) a Unit that is owned in fee by the Developer, Developer's successor in interest, DHR, or a successor in interest that is authorized or permitted pursuant to Section 7.1 hereof, and in which memberships are sold to third parties giving such parties the right to use and occupy the Unit for certain periods of time. 1.5.23 "Golf Casitas Parcel" shall mean that certain real property designated as Lot 11 on the Parcel Map. The Golf Casitas Parcel is comprised of approximately eight and sixty-three one hundredths (8.63) acres. 1.5.24 "Hotel Unit" means the Units in the Project that will be owned in fee by Developer or any successor authorized pursuant to Section 7.1.1 hereof and managed by DHR or any successor hotel management entity authorized or approved by the City pursuant to Section 7.1.2 hereof. None of the Hotel Units may be sold as Condominium Hotel Units or as Fractional Units. 1.5.25 "Initial Escrow Closing Date" shall have the meaning ascribed in Section 1.4 hereof. 1.5.26 "Lake Casitas Parcel" shall mean that certain real property designated as Lot 23 on the Parcel Map. The Lake Casitas Parcel is comprised of approximately 3.82 acres. I IIIIIIIIIIII III IIIII IIIIIIIIIII IIIIII III IIIIIIIII IIII esfe00e 0f�02300R 8821015610-0084 _ 750537 12 a02/26/07 -5 1.5.27 "Lowe Enterprises" means Lowe Enterprises, Inc., a California corporation, which is an affiliate of Developer. 1.5.28 "Management Transfer" shall have the meaning ascribed in Section 7.1.2 hereof. 1.5.29 "Management Transfer Release Date" shall have the meaning ascribed in Section 7.1.2 hereof. 1.5.30 "New Laws" shall have the meaning ascribed in Section 2.1 hereof. 1.5.31 "Operating Covenant Release Date" shall have the meaning ascribed in Section 3.1.7 hereof. 1.5.32 "Parcel" shall mean any of the Boutique Hotel Parcel, Black Box Parcel, Ranch Villas Parcel, Resort Hotel Parcel, Resort Retail Village Parcel, Golf Casitas Parcel, or Lake Casitas Parcel. 1.5.33 "Parcel Map" means Parcel Map No. 33367, which has been prepared by the Agency for recordation in the Official Records of Riverside County, California, prior to or concurrently with the closing of the Initial Escrow. A copy of the Parcel Map is attached to the DDA as Attachment No. 11. 1.5.34 "Performance Audit' shall have the meaning ascribed in Section 3.1 hereof. 1.5.35 "Performance Consultant' shall have the meaning ascribed in Section 3.1 hereof. 1.5.36 "Performance Default Payment' shall have the meaning ascribed in Section 3.1 hereof. 1.5.37 "Phase of Development' shall mean the component of the Project to be constructed on a particular Parcel, as further described in the DDA. 1.5.38 "Phase of Development Owner" shall have the meaning ascribed in Section 3.1 hereof. 1.5.39 "Project' shall have the meaning ascribed in Recital C hereof. 1.5.40 "Project Site Development Permits" shall have the meaning ascribed in Recital C hereof. 1.5.41 "Quitclaim" shall have the meaning ascribed in Section 1.4 hereof. 1.5.42 "Ranch Villas Parcel" means that certain real property designated as Lot 22 on the Parcel Map. The Ranch Villas Parcel is comprised of approximately 2.43 acres. �007-0502623 IIIIIIIIIIIIIIII(IIII(IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 06l03/90of 623 BR 882/015610-0084 -6_ 750537 12 a02/26/07 1.5.43 "Reference Date" shall have the meaning ascribed in the preamble hereof. 1.5.44 "Resort Hotel Parcel" means that certain real property designated as Lot 3 on the Parcel Map. The Resort Hotel Parcel is comprised of approximately 19.65 acres. 1.5.45 "Resort Retail Village Parcel" means that certain real property designated as Lot 5 on the Parcel Map. The Resort Retail Village Parcel is comprised of approximately 11.88 acres. 1.5.46 "SilverRock Resort Area' means the real property included in and covered by the Specific Plan. 1.5.47 "Site" shall have the meaning ascribed in Recital C hereof. 1.5.48 "Specific Plan" shall have the meaning ascribed in Recital C hereof. 1.5.49 "Term" shall have the meaning ascribed in Section 1.1 hereof. 1.5.50 "Transfer" shall have the meaning ascribed in Section 7.1.1 hereof. 1.5.51 "Transient Occupancy Tax" shall have the meaning ascribed in Chapter 3.24 of the La Quinta Municipal Code. 1.5.52 "Unit" shall mean one of the approximately six hundred eighty (680) units designed for overnight occupancy comprising the Project. All Units shall be developed as Condominium Hotel Units, Fractional Units, and/or Hotel Units, and all such development shall be in accordance with the requirements of the Specific Plan. m 1.5.53 "Updated Mitigated Negative Declaration" shall have the meaning ascribed in Recital C hereof. ego mmm 2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF N � THE PROJECT O] 0 o� 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) shall be deemed vested upon approval of all of the components that comprise the Development Plan, which vesting shall expire upon the earlier of the following occurrences: (a) termination of this Agreement; (b) termination of the DDA; (c) an uncured material default by Developer of this Agreement or of the DDA; or (d) as to a particular Phase of Development, or a particular Parcel, the earlier of the final approved City inspection of the completed development of such Phase of Development or Parcel, or the issuance by City of a final certificate of occupancy for such Phase of Development or Parcel. 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; provided, however, that in the event that vesting terminates as a result of the termination of the DDA 882/015610-0084 _7- 750537 12 a02/26/07 (clause (b) above), then the obligations of Developer under this Agreement after such termination shall be limited to those which are applicable to the portions of the Project and/or the Parcels acquired by Developer pursuant to the DDA prior to such termination. Notwithstanding anything in this Agreement to the contrary, any recorded City Declaration of CC&Rs shall survive the termination of this Agreement or of the DDA. Notwithstanding anything in this Agreement to the contrary, the Site and the Project shall remain subject to: (i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees existing on the Effective Date of this Agreement, including, without limitation, Section 9.140.080 of the La Quinta Municipal Code (collectively, the "Existing Development Regulations"); (ii) all amendments or modifications to Existing Development Regulations after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans, policies, and guidelines of the City and its City Council, Planning Commission, and all other City boards, commissions, and committees enacted or adopted after the Effective Date of this Agreement (collectively, "New Laws"), except such New Laws which would prevent or materially impair Developer's ability to develop the Project in accordance with the Development Plan, and as to such New Laws that would prevent or materially impair Developer's ability to develop the Project, they will not apply to the Project 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 and are necessary to protect the public's health and safety and do not result in a moratorium on development of the Site, (B) required by a non -City entity to be adopted by or applied by the City (or if optional the failure to adopt or apply such non -City law or regulation would cause City to sustain a loss of funds or loss of access to funding or other resources), or (C) New Laws the City expressly reserves the right to apply under this Agreement, including but not limited to those in Sections 2.2 and 3.7; (iii) all subsequent development approvals and the conditions of approval associated therewith, including but not limited to Site Development Permits and building permits, (iv) the payment of all fees or exactions in the categories and in the amounts as required at the time such fees are due and payable which may be at the time of issuance of building permits, or otherwise as specified by applicable law, as existing at the time such fees are due and payable, and (v) the reservation or dedication of land for public purposes or payment of fees in lieu thereof as required at the time such reservations or dedications or payments in lieu are required under applicable law to be made or paid. 2.2 Additional Applicable Codes and Regulations Notwithstanding any other provision of this Agreement, City also reserves the right to apply the following to the Site and to the development of the Project: 882/015610-0084 750537 12 a02/26/07 IF-11 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, so long as they are applied to the Project in a nondiscriminatory manner. 2.2.2 In the event of fire or other casualty requiring reconstruction 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, Fire, and similar building codes based upon uniform codes adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely to the extent applicable to all development projects in the City. 2.2.3 This Agreement shall not prevent the City from establishing any new City fees, including new development impact fees, or increasing any existing City fees, including existing development impact fees, including but not limited to the resort fees described in and required pursuant to the City Declaration of CC&Rs, and to apply such new or increased fees to the Project or applicable portion thereof where such new or increased fees may be charged, so long as such fees are applicable City-wide. 2.3 Permitted Density, Height and Use Limitations. The permitted uses, density and intensity of use, location of uses, maximum height and size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall be those set forth in the Development Plan. M m N 2.4 Developer Impact Fees. Imo m m For purposes of calculating required Developer Impact Fees, all Units in the Project shall 0 M be deemed to be, and shall pay fees as, a hotel project, and shall not be treated as, nor charge N m Developer Impact Fees as, residential units. 3.0 DEVELOPER'S OBLIGATIONS e 3.1 Development and Operation of the Project. Developer shall construct the Project on the Site in accordance with the Development Plan, including, without limitation, all of the timeframes set forth in the DDA. Developer shall enter into the necessary agreements to ensure that Destination Hotels & Resorts, Inc., a California corporation ("DHR"), shall initially manage and operate the Phases of Development developed on the Boutique Hotel Parcel, the Resort Hotel Parcel, the Lake Casitas Parcel, the Golf Casitas Parcel, and the Ranch Villas Parcel, all in accordance with the requirements of this Section 3.1. Notwithstanding anything herein to the contrary and with the one limited exception outlined in this paragraph, until the Management Transfer Release Date for each Phase of Development that includes Units, DHR or a successor entity authorized pursuant to Section 7.1.2 (DHR or such permitted successor entity, an "Authorized Manager") shall retain full management and operational control over all components of such Phase of Development. The 88210 15610-00 84 _e3_ 750537 12 a02/26/07 Authorized Manager of the hotel and Units to be developed on the Resort Hotel Parcel shall also be the Authorized Manager for the Units to be developed on the Golf Casitas Parcel and the Lake Casitas Parcel. The Authorized Manager of the hotel and Units to be developed on the Ranch Villas Parcel shall also be the Authorized Manager for the Units to be developed on the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subsequently subdivided into two or more Parcels. In the event that, consistent with the terms of this Agreement and the DDA, some or all of the Fractional Units are developed as a residence club, in which memberships are sold to third parties giving such parties the right to use and occupy the Fractional Unit for certain periods of time, or as a timeshare program, Developer anticipates the residence club and timeshare program will be operated and managed by DHR. Developer shall obtain City's prior written approval, which approval shall not be unreasonably conditioned, withheld, or delayed, of any operator other than DHR that Developer proposes to operate and manage said residence club and/or timeshare program, and in no event shall more than one operator operate and manage said residence club and/or timeshare program, regardless of whether the Fractional Units in the residence club and/or timeshare program are located on more than one Parcel. Further, in no event will there be more than three operators operating and managing all of the Units in the Project. In connection with Developer's request for City's approval, Developer shall submit a proposed management plan that describes the residence club and/or timeshare program, including the operational and managerial obligations of the proposed operator, and that details how such operation and management will be effected in order to maintain the Fractional Units at a Four Star Quality and to ensure such Fractional Units remain and appear to remain affiliated with the other hotel portions of the Project. Developer, on behalf of itself and any Authorized Manager, covenants and agrees that each of the Phases of Development that include Units shall, upon its completion, be operated in a Four Star Quality condition until the twentieth (20th) anniversary of the date the Agency issues a Release of Construction Covenants for such Phase of Development (the "Operating Covenant Release Date"). No more than once per year after completion of any of the Phases of Development that include Units, the City may select an independent consultant (the "Performance Consultant") to perform a quality audit of such Phase(s) of Development for purposes of determining that the applicable Phase of Development is operating at a Four Star Quality (the "Performance Audit"). The then -owner of the applicable Phase of Development (the "Phase of Development Owner") shall reimburse the City for the reasonable costs of the Performance Audit. City shall promptly provide the Phase of Development Owner with a copy of the Performance Audit. In the event that the Performance Audit concludes that the Phase of Development is not operating at a Four Star Quality, the Phase of Development Owner shall have a period of sixty (60) days from the date the City provides the Phase of Development Owner with the Performance Audit to correct a sufficient number of the deficiencies noted therein so that the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. If, at the expiration of said sixty (60) day period, a sufficient number of the deficiencies have not been corrected so that the Phase of Development still does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, the Phase of Development Owner shall pay to the City liquidated damages for each day after said sixtieth (60`h) day that passes until sufficient items noted in the Performance Audit have been corrected, as determined by the Performance Consultant, in the following amounts: (i) if the Phase of Development is operating such that eighty percent (80%) or more but less than ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the City 882/015610-0084 _ 1 Q_ 750537 12 a02/26/07 the sum of Five Hundred Dollars ($500) per day (the "Less Than 95% Performance Default Amount") until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics; or (ii) if the Phase of Development is operating such that less than eighty percent (80%) of the applicable detailed Four Star Quality characteristics are met, the Phase of Development Owner shall pay to the City the sum of One Thousand Dollars ($1,000) per day (the "Less Than 80% Performance Default Amount") until the day as of which'the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics; provided, however, that if on the da:y the Phase of Development meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics the Phase of Development does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, then the Phase of Development Owner shall be required to pay the City the Less Than 95% Performance Default Amount, pursuant to clause (i) above, for each day until the day as of which the Phase of Development meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. All of the costs and fees charged by the Performance Consultant for any follow-up inspections shall be paid by Developer. LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT A PHASE OF DEVELOPMENT IS NOT OPERATING AT A FOUR STAR QUALITY, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CITY AND DEVELOPER AGREE THAT CITY WILI. INCUR DAMAGES BY REASON OF SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND DEVELOPER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT CITY'S DAMAGES WOULD BE IN THE EVENT OF SUCH NmN DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, HAVE N m" AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF Imo mN� THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO ti m CITY THAT REASONABLY COULD BE ANTICIPATED, INCLUDING WITHOUT LIMITATION THE POTENTIAL LOSS OF TAX REVENUE TO THE CITY, AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT, THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF CITY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT BY DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST, THE PHASE OF DEVELOPMENT OWNER SHALL BE REQUIRED TO PAY TO CITY THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% DEFAULT AMOUNT (AS APPLICABLE) AS LIQUIDATED DAMAGES AND AS CITY'S SOLE DAMAGE REMEDY AGAINST DEVELOPER OR DEVELOPER'S SUCCESSOR IN INTEREST FOR A DEFAULT UNDER THIS SECTION 3.1; PROVIDED, HOWEVER, THAT CITY RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER EQUITABLE REMEDY AVAILABLE TO CITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING AN 882/015610-0084 -1 1- 750537 12 a02/26/07 ACTION FOR SPECIFIC PERFORMANCE (BUT NOT THE RIGHT TO SEEK ANY DAMAGES). CITY AND DEVELOPER SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES PROVISION BY THEIR SIGNATURES BELOW: CITY ` VELOPER City and Developer acknowledge and agree that the liquidated damages provision in this Section 3.1, in Section 1.2 of the applicable City Declaration of CC&Rs, and in Section 500 of the DDA, are designed to be a single obligation of the Phase of Development Owner pursuant to this Section 3.1, Section 1.2 of the applicable City Declaration of CC&Rs, and Section 500 of the DDA, and that either payment to City, under this Section 3.1 or under Section 1.2 of the applicable City Declaration of CC&Rs, or payment to the Agency, under Section 500 of the DDA, shall satisfy the obligation of payment of the liquidated damages under this Section 3.1, under Section 1.2 of the applicable City Declaration of CC&Rs, and under Section 500 of the DDA. 3.2 Conditions of Approval; Mitigation Monitoring Program. Developer shall comply with all Conditions of Approval. The Developer shall also comply with the mitigation monitoring program set forth in Exhibit "13" attached hereto, which includes and incorporates the mitigation measures of the Updated Mitigated Negative Declaration to ensure that significant environmental effects will be mitigated or avoided (the "Mitigation Monitoring Program"). mmN m� 3.3 Declaration of Covenants Conditions and Restrictions: ego m Nor 3.3.1 Recordation of City Declaration of CC&Rs.. As one of the Agency's m conditions to closing under the DDA for any Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer shall have entered into with the City and shall, at said closing, record against the underlying Parcel a Declaration of Covenants, Conditions and Restrictions in the form attached hereto and incorporated herein as Exhibit "E" (a "City Declaration of CC&Rs"), the covenants of which shall bind all of the Parcels on which Units will be developed and each and every Condominium Hotel Unit, Fractional Unit, and Hotel Unit developed thereon in perpetuity and shall survive the termination of this Agreement. As set forth more fully in the City Declaration of CC&Rs, Developer acknowledges and agrees that there will be subsequent adjustments to the payment amounts set forth in: (i) Section 1.5 of the City Declaration of CC&Rs for the "Excess Use Payments," (ii) Section 2.1 of the City Declaration of CC&Rs for the "CHU Annual Resort Payment," and (iii) Section 2.2 of the City Declaration of CC&Rs for the "Fractional Unit Annual Resort Payments." The parties agree that for the sake of simplicity, they desire to have the amounts of each of the foregoing payments to be uniform as to all Parcels on which Units will be developed. Therefore, as set forth in more detail in the City Declaration of CC&Rs, (a) the date of the first sale of a Condominium Hotel Unit will establish a benchmark for the timing of all subsequent adjustments to the amount of the Excess Use Payments and to the amount of the CHU Annual Resort Payments; and (b) the date of the first sale of a Fractional Unit will establish a benchmark for the timing of all subsequent adjustments to the amount of the Fractional Unit Amival Resort Payments. The result of the foregoing is that the payment amounts for the entirety of the Project are uniform for the same type of Unit, and 882/015610-0084 -12- 750537 12 a02/26107 that each specific type of payment (i.e., Excess Use Payments, CHU Annual Resort Payments, and Fractional Unit Annual Resort Payments) is subject to adjustment at the same time regardless of when such Condominium Hotel Units or Fractional Units are developed or sold. Accordingly, the form of each City Declaration of CC&Rs that is recorded subsequent to the City Declaration of CC&Rs that is recorded against the first Parcel on which a Condominium Hotel Unit or Fractional Unit has been sold shall be revised to reflect the amounts then -charged or chargeable, pursuant to the terms of said City Declaration of CC&Rs, to (1) Condominium Hotel Units as Excess Use Payments and as CHU Annual Resort Payments; and (2) Fractional Units as Fractional Unit Annual Resort Payments. 3.3.2 Recordation of Developer CC&Rs. Prior to and as a condition to the City's issuance of a temporary or final certificate of occupancy for any Parcel that will be developed with Condominium Hotel Units and/or Fractional Units, Developer shall have submitted to City, obtained City's approval of, and recorded against the underlying Parcel, a declaration of covenants, conditions, and restrictions that (i) establishes a homeowners' association, (ii) is necessary to create a condominium regime for the condominiums described on the Condominium Plan to be recorded in accordance with all applicable laws; (iii) clearly sets forth the maintenance obligations of the owners of the Condominium Hotel Units and Fractional Units; (iv) sets forth the obligations of the owners of the Condominium Hotel Units and Fractional Units to make certain resort payments, as further set forth in the City Declaration of CC&Rs, and requires all such resort payments to be paid and brought current prior to any sale by the owner thereof-, and (v) includes a disclosure regarding the public ownership and control of the existing golf course and any future golf course that may be developed in the SilverRock Resort Area and a statement that Developer does not and cannot guarantee that the City will not make changes to such golf course(s) or change the use of the underlying real property (the "Developer CC&Rs"). The Developer CC&Rs shall provide that the City is a third party me beneficiary thereof with the right, but not the obligation, to enforce the terms thereof which are N� required hereby, and shall require the written approval of the City prior to any amendments N m thereto to any of the provisions which are required hereby. m 3.4 Sign Agreements. s As one of Agency's conditions to closing under the DDA for the Boutique Hotel Parcel, Resort Hotel Parcel, and Resort Retail Village Parcel, Developer shall enter into with the City or the Agency (as applicable) a signage agreement for such Parcel. Notwithstanding other signage locations to be determined during the site development permit process, the signage agreement for the Boutique Hotel Parcel shall provide for signage along Avenue 52, at the entry point to the development; the signage agreement for the Resort Hotel Parcel shall provide for signage on Jefferson Street, at the Resort Hotel entry point; the signage agreement for the Resort Retail Village Parcel shall provide for signage at the comer of Avenue 52 and Jefferson Street, Avenue 54 and Jefferson Street, and on Avenue 54, at the entry into the SilverRock Resort Area. 3.5 Maintenance Agreements. As one of Agency's conditions to closing for each Parcel under the DDA, Developer shall enter into with the City or the Agency (as applicable) a maintenance agreement requiring the Developer to maintain the Public Improvements located adjacent to such Parcel. 882/015610-0084 -13- 750537 12 a02/26/07 3.6 Water Agreements. City has entered into with the Coachella Valley Water District ("CVWD") that certain Domestic Water and Sanitation Systems Installation and Irrigation Service Agreement dated on or about June 11, 2005, and recorded in the Official Records of the County of Riverside, as Instrument No. 2005-0852063, on June 14, 2005 (the "CVWD Agreement"). Pursuant to the CVWD Agreement, the owner/developer of each Parcel is required to execute and record a Domestic Water and/or Sanitation Systems Installation Agreement, substantially in the form attached to the CVWD Agreement as Exhibit C (a "Water Agreement"), prior to obtaining domestic water service for each said Parcel. As one of Agency's conditions to closing for each Parcel under the DDA, Developer shall execute and record against such Parcel at the Closing therefor a Water Agreement. 3.7 Other Fees and Charges Assessment Appeals. Nothing set forth in this Agreement is intended to or shall be construed to limit or restrict the City's authority to impose its existing, or any new or increased, fees, charges, levies, or assessments for the development of the Site, or to impose or increase, subject to the required procedure, any taxes applicable to the Site including but not limited to transient occupancy taxes, provided nothing set forth herein, subject to the following two sentences, is intended or shall be construed to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge, levy, assessment, or tax imposed. Developer agrees on behalf of itself and on behalf of all persons or entities that may own an interest in the Site or the Units in the future that no action shall be taken, including any assessment appeal, to decrease the assessed value of any of the Site or any portion thereof below the final assessed value at the time the development of the Now Site or separate Parcel thereof is completed. Developer agrees on behalf of itself, and on behalf m o of all persons or entities that may own an interest in the Site or the Units in the future that during N= the term hereof no action shall be taken to challenge, cancel, reduce, or otherwise negate the N m payments required to be made to the City pursuant to the City Declaration of CC&Rs. Developer shall timely pay all applicable fees, charges, levies, assessments, and special and general taxes validly imposed in accordance with the Constitution and laws of the State of California, including without limitation school impact fees in accordance with Government Code §§ 65995, et seq. 3.8 Dedications and Improvements. o the City or other applicable public agency, or Developer shall offer dedications t complete those public improvements in connection with the Project, as specified in the Conditions of Approval. 3.9 Indemnification. a. The Developer agrees to and shall indemnify, hold harmless, and defend, the City and the Agency and their respective officers, officials, members, agents, employees, and representatives, from liability or claims for death or personal injury and liability and claims for property damage which may arise from the negligent or grossly negligent acts, errors, and/or omissions of the Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to the Project and/or this Agreement. The foregoing indemnity 882/015610-0084 -14- 750537 12 a02/26/07 applies to all deaths, injuries, and damages, and claims therefor, suffered or alleged to have been suffered by reason of the negligent or grossly negligent acts, errors, and/or omissions referred to in this paragraph, regardless of whether or not the City prepared, supplied, or approved plans or specifications, or both, and regardless of whether or not the insurance policies referred to in this Agreement are applicable. In the event of litigation, the City agrees, at no cost to the City, to cooperate with the Developer. The Developer shall have the obligation to provide the defense of the City and/or Agency in the litigation, either by providing for legal counsel or, at the City's or Agency's option, timely paying the legal costs incurred by the City and or the Agency in the defense of litigation, even though negligence or gross negligence of the Developer or its contractors, subcontractors, agents, employees or other persons acting on its behalf has not been established at the time that the defense is provided. b. In the event of any court action or proceeding challenging the validity of this Agreement or the Development Plan, the Developer shall indemnify, hold harmless, pay all costs and provide defense for the City in said action or proceeding with counsel chosen by Developer and reasonably approved by the City. The City shall, at no cost to the City, cooperate with the Developer in any such defense as Developer may reasonably request. In the event the Developer fails or refuses to provide such defense of any challenge to this Agreement or the Development Plan, or any component thereof, City shall have the right not to defend such challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including terminating this Agreement. In the event of such termination, Developer, upon written request of City, shall immediately execute a termination document or other document reasonably required m ° by a reputable title company to remove this Agreement as a cloud on title. m N0] M m 3.10 Insurance. m e Before beginning construction on the Site, the Developer shall cause the insurance e required under this paragraph to be issued and thereafter to be maintained until one (1) year following the later of (i) the date City issues the last certificate o1' occupancy needed for the initial occupancy of the last portion of the Project, or (ii) the date the City signs off on the last final inspection of the last of the Project improvements. s vDeveloper shall procure and maintain: s A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00) per occurrence and Three Million Dollars ($3,000,000.00) in the aggregate. A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by Developer in the course of carrying out the work or services contemplated in this Agreement. A policy of commercial automobile liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000.00). Said policy shall include coverage for owned, non -owned, leased, and hired cars. The following additional requirements shall apply to all of the above policies of insurance: 882/015610-0084 -15- 750537 12 a02/26/07 All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, Agency, and their respective officers, officials, members, employees, agents, and representatives as additional insureds, using a pre- 2004 additional insured endorsement (or equivalent). The insurer shall waive all rights of subrogation and contribution it may have against City, Agency, and their officers, officials, members, employees, agents, and representatives, and their respective insurers. All of said policies of insurance shall provide that said insurance may not be materially amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager. Not later than the Effective Date, Developer shall provide the City Manager with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the City Manager. Upon the request of the City Manager, Developer shall provide City with complete copies of each policy of insurance required by this Agreement. The policies of insurance required by this Agreement shall be satisfactory only if issued by companies (i) licensed and admitted to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, or (ii) authorized to do business in California, rated "A+" or better in the most recent edition of Best Rating Guide, The Key Rating Guide, or in the Federal Registry and only if they are of a financial category Class XV. Notwithstanding the foregoing, in the event that the policies required hereunder are not available from such insurers at commercially reasonable rates, the City Manager shall have the authority, in his or her sole and absolute discretion, to waive one or more of such requirements provided the proposed policies will adequately protect the City's interests hereunder. City may reasonably require coverage increases, provided that the percentage increase in coverage shall not be required to exceed the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles -Riverside -Orange County Average, All Items (1984 = 100) (the "Index"), from and after the date of this Agreement, or, if said Index is discontinued, such official index as may then be in existence and which is most nearly equivalent to said Index (the "CPI Adjustment"). Unless otherwise approved in advance by the City Manager, the insurance to be provided by Developer may provide for a deductible or self -insured retention of not more than Fifty Thousand Dollars ($50,000), with such maximum amount to increase at the same rate as the periodic increases in the minimum amount of total insurance coverage set forth above. Developer agrees that the provisions of this Section shall not be construed as limiting in any way the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 3.9 or the extent to which Developer may be held responsible for the payment of damages to any persons or property '82/015610-0084 -16- 750537 12 a02/26/07 resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 3.11 Transient Occupancy Tax Obligations. Developer acknowledges and agrees that all of the Units in the Project are Units in a "Group Hotel," as that term is defined in Section 3.24.020 of the La Quinta Municipal Code, for purposes of collecting and remitting to the City Transient Occupancy Tax. 4.0 CITY'S OBLIGATIONS 4.1 Scope of Subsequent Review/Confirmation of Compliance Process. Nothing set forth herein shall impair or interfere with the right of the City to require the processing of building permits as required by law pursuant to the applicable provisions of the La Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes. Prior to each request for a building permit, Developer shall provide City with a Compliance Certificate ("Certificate") in of form created by Developer and approved by the City, which shall describe how all applicable Conditions of Approval have been fully complied with. The Certificate shall be distributed to relevant City departments for checking the representations made by Developer on the Certificate. 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 mN respect to the Project, constitute independent actions and approvals by the City. If any provision N _ N ti mr of this Agreement or the application of any provision of this Agreement to a particular situation WOO is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement m MN terminates for any reason, then such invalidity, unenforceability or termination of this Agreement mor any part hereof shall not affect the validity or effectiveness of any such Project approvals or other land use approvals and entitlements. In such cases, such approvals and entitlements will remain in effect pursuant to their own terms, provisions, and the Conditions of Approval. It is understood by the parties to this Agreement that pursuant to existing law, if this Agreement terminates or is held invalid or unenforceable as described above, such approvals and entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the term of such approvals and entitlements. 4.3 Review for Compliance. The City shall review this Agreement at least once during every twelve (12) month period following the Effective Date of this Agreement, in accordance with the City's procedures and standards for such review set forth in the City's Development Agreement Ordinance. During C such periodic review by the City, the Developer, upon written request from City, shall be required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with the terms hereof. The failure of the City to conduct or complete the annual review as provided herein or in accordance with the Development Agreement Act shall not impact the validity of this .Agreement. If, at the conclusion of the annual review provided for herein, Developer shall 882/015610-0084 _ 17_ 750537.12 a02/26/07 have been found in compliance with this Agreement, City, through the City's Community Development Director, shall, at Developer's written request, issue a Certificate of Compliance to Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in compliance with this Agreement. The Certificate of Compliance shall be in recordable form, and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer, at its option and sole cost, may record the Certificate of Compliance. 5.0 DEFAULT; REMEDIES. 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. A default of Developer under the DDA shall be deemed to be a default hereunder and shall give rise to all of City's remedies for a default hereunder. 5.2 Cure of Default. Upon the receipt of the notice of default, the alleged defaulting party shall promptly commence to cure, correct, or remedy the identified default at the earliest reasonable time after M ON receipt of the notice of default and shall complete the cure, correction or remedy of such default No not later than five (5) days for thirty (30) days for non -monetary defaults] after receipt of the m NN notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied Nm 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 s for non -monetary defaults], and shall continuously and diligently prosecute such cure, correction or remedy to completion. s 5.3 City Remedies. In the event of a default by Developer or its successors in interest of the terms of this Agreement that has not been cured within the timeframe set forth in Section 5.2 above, or of the terms of the DDA that has not been cured within the timeframe set forth therein for curing defaults, the City, at its option, may institute legal action in law or in equity to cure, correct, or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement; provided, however, that in no event shall City be entitled to consequential damages for any Developer default. For purposes of this Agreement the tern "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, cancel, 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. 882/01561 OA084 18 750537 12 a02/26/07 5.4 Developer's Exclusive Remedy. The parties acknowledge that the City would not have entered into this Agreement if it were to be liable in damages under or with respect to this Agreement or any of the matters referred to herein including but not limited to the Development Plan, Conditions of Approvals, the Existing Development Regulations or any future amendments or enactments thereto, or the Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself and its successors and assigns, including the owners of the Units, not to sue the City for damages or monetary relief for any breach of this Agreement by City or arising out of or connected with any dispute, controversy, or issue between Developer and City regarding this Agreement or any of the matters referred to herein including but not limited to the application, interpretation, or effect of this Agreement, the Development Plan, the Conditions of Approval, the Existing Development Regulations or any future amendment or enactments thereto, or any land use permit or approval sought in connection with the development of the Project or any component thereof, or use of a parcel or any portion thereof, the parties agreeing that declaratory and injunctive relief, mandate, and specific performance shall be Developer's sole and exclusive judicial remedies. 6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE ti mN fG W g o 6.1 Encumbrances on the Proiect Site. mj NN ti m N This Agreement shall not prevent or limit the Developer from encumbering the Site or m 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. a 0 6.2 Mortgage Protection. 0 e 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 e assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and conditions of this Agreement. 6.3 Mortgagee Not Obligated. No Mortgagee will have any obligation or duty under this Agreement to perform the obligations of the Developer or other affirmative covenants of Developer hereunder, or to guarantee such performance, except that (i) the Mortgagee shall have no right to develop or operate the Site, and (ii) to the extent that any covenant to be performed by the Developer is a condition to the performance of a covenant by the City, the performance thereof shall continue to be a condition precedent to the City's performance hereunder. 182/015610-0084 750537 12 a02/26/07 -19- 6.4 Notice of Default to Mortgagee; Rieht of Mortgagee to Cure City shall, upon written request therefor to the City, deliver to each Mortgagee a copy of any notice of default given to Developer under the terms of this Agreement, at the same time of sending such notice of default to Developer. The Mortgagee shall have the right, but not the obligation, within five (5) days [or thirty (30) days for non -monetary defaults] after the receipt of such notice from City, to cure, correct, or remedy the default, or, for such defaults that cannot reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non - monetary defaults], to commence to cure, correct, or remedy the default within such five (5) day period [or thirty (30) day period for non -monetary defaults], and to continuously and diligently prosecute such cure to completion. If the default is of a nature which can only be remedied or cured by such Mortgagee upon obtaining possession of the Site, such Mortgagee shall have the right to seek to obtain possession with diligence and continuity through foreclosure, a receiver or otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is reasonably necessary to cure or remedy said default but in no event more than thirty (30) days after obtaining possession. If any such default cannot, with diligence, be remedied or cured within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to effect, a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty (30) day period, and thereafter diligently pursues and completes such cure. `"a mMN 7.0 TRANSFERS OF INTEREST IN SITE, AGREEMENT, OR MANAGEMENT fL 0 G mmN 7.1 Transfers of Interest in Site, Agreement, or Management. The qualifications and N ` identity of the Developer as the developer and DHR as the operator of high quality commercial resort developments are of particular concern to the City. Furthermore, the parties acknowledge that the City has negotiated the terms of this Agreement in contemplation of the development v and operation of the Project on the Site and the property tax increment and Transient Occupancy v Tax revenues to be generated by the operation of the Project on the Site. e s 7.1.1 Transfers of Interest in Site or Agreement Prior to Agency's Issuance of a Release of Construction Covenants. Except as provided in this Section 7.1, until the date the Agency issues a "Release of Construction Covenants" (as that term is defined in the DDA) for a particular Phase of Development (the "Fee Transfer Release Date"), (1) no voluntary successor in interest of the Developer shall acquire any rights or powers o under this Agreement with respect to said Phase of Development; (2) the Developer shall not make any total or partial sale, transfer, conveyance, assignment, or lease of the whole MOM or any part of the applicable Parcel or the Phase of Development thereon; and (3) no s changes shall occur with respect to the ownership and/or control of Developer or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (any of the above, a "Transfer"). Prior to the Fee Transfer Release Date for a particular Phase of Development, the City may approve or disapprove a proposed Transfer in its sole and absolute discretion. Notwithstanding the foregoing, City approval of a Transfer prior to the Fee Transfer Release Date for a particular Phase of Development shall not be required in connection with any of the following: 982/015610-0084 750537 12 a02/26/07 -20- a. The conveyance or dedication of any portion of the Site to an appropriate governmental agency, or the granting of easements or permits to facilitate construction of the Project. b. Any assignment for financing purposes (subject to such financing being permitted pursuant to Section 311 of the DDA), including the grant of a deed of trust to secure the funds necessary for land acquisition, construction and permanent financing of the Project or of a Phase of Development. C. The Transfer by Developer to an entity (i) whose managing member, manager, or managing general partner is (A) Developer or (B) an entity which is at least twenty percent (20%) capitalized by Lowe Enterprises or the senior management of Lowe Enterprises; and (ii) which engages as the project/development manager for the Phase of Development an entity which is at least fifty-one percent (51%) owned and controlled by Lowe Enterprises. d. The sale by Developer of Condominium Hotel Units to third party buyers. e. The sale, transfer or issuance of stock or membership interests of Lowe Enterprises so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, membership and/or ownership interests of Lowe Enterprises, and control of Lowe Enterprises, is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. M01 WO, 1, 7.1.2 Transfers of Operational Obligations. Notwithstanding anything in " NN Section 7.1.1 to the contrary, commencing on the date the Agency issues a Release of mM Construction Covenants for each Phase of Development and continuing until the tenth m (10`h) anniversary thereof (the "Management Transfer Release Date"), (i) subject to the provisions of Section 3.1 hereof concerning the potential for separate management of Fractional Units in a residence club and/or timeshare program, neither Developer nor DHR (or any permitted successor in interest) shall make any Transfer of the operational C and/or managerial control, including, but not limited to, financial and managerial decisionmaking, of such Phase of Development; and (ii) no changes shall occur with respect to the ownership and/or control of DHR, or of Lowe Enterprises, including, without limitation, stock transfers, sales of issuances, or transfers, sales or issuances of membership or ownership interests, or statutory conversions (either of the above, a "Management Transfer") without the prior written approval of the City; provided, however, that transfers of the stock, ownership and/or membership interests of DHR or of Lowe Enterprises may be made so long as a minimum of fifty-one percent (51%) of the outstanding and voting stock, ownership, and/or membership interests of DHR and of Lowe Enterprises is held, directly or indirectly, by Robert J. Lowe or his estate or a member of his family. Notwithstanding the foregoing, City approval shall not be required for a Management Transfer to any of the entities listed on Exhibit "F," which is attached hereto and incorporated herein by this reference; provided, however, that if any of the entities on Exhibit "F" operate under a "flag" name, the flag shall be a flag that operates at a Four Star Quality. To the extent that the operating character or quality of any of the entities listed on Exhibit "F" substantially changes between the Effective Date and the date of the proposed Management Transfer, Developer or Developer's successor 882/015610-0080 750537 12 a02/26/07 -21- in interest shall demonstrate that the listed entity satisfies the requirements for transferee entities not listed on Exhibit "F", as outlined below in this Section 7.1.2. No Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating and managing the hotels and Units on the Resort Hotel Parcel, the Lakes Casitas Parcel, and the Golf Casitas Parcel, and no Management Transfer or Transfers, individually or collectively, shall be made that results in different entities operating and managing the hotels and Units on the Ranch Villas Parcel and the Boutique Hotel Parcel, regardless of whether the Boutique Hotel Parcel is subdivided into two or more legal parcels. City shall not unreasonably withhold, delay, or condition approval of a proposed Management Transfer to an entity that is not listed on Exhibit "F", provided that Developer or Developer's successor in interest demonstrates that the proposed operator has experience and reputation for operating luxury hotels at a Four Star Quality equivalent to the experience and reputation of DHR, Rosewood Hotels and Resorts, Vail Resorts, Inc., Loews Corporation, and Kimpton Hotel and Restaurant Group, LLC. Developer or Developer's successor in interest shall provide such information as may reasonably requested by the City to enable the City to review and approve (or disapprove) any proposed operator, and shall reimburse the City for the City's costs incurred in considering any such request. ow wow 7.1.3 Assignment and Assumption of Obligations. Except for the sale of m g o individual Condominium Hotel Units or Fractional Units, any Transfer (including m�� Transfers not requiring prior City approval) b Developer of an interest in the Site or of q gP Y PP ) Y P Y m. any interest in this Agreement and all Management Transfers shall require the execution m of an assignment and assumption of obligations substantially in the form attached hereto and incorporated herein as Exhibit "G" (an "Assignment and Assumption Agreement"). Transfers of Developer's rights and/or obligations under this Agreement made without an executed Assignment and Assumption Agreement are null and void. The requirement for provision to City of an executed Assignment and Assumption Agreement shall apply regardless of whether City approval is required for the Transfer. Developer agrees that (a) at least thirty (30) days prior to any Transfer it shall give written notice to City of such proposed Transfer; and (b) within three (3) business days after any Transfer it shall provide City with a copy of the fully executed Assignment and Assumption Agreement evidencing that the assignee has assumed in writing all applicable obligations under this Agreement. A party proposing to assign its obligations under this Agreement (i) shall remain liable for the obligations until and unless the City has received a fully executed Assignment and Assumption Agreement, and (ii) shall remain liable for any default hereunder that occurred prior to the effective date of the assignment. Developer or Developer's successor in interest shall reimburse the City for any costs (other than staff time) the City incurs in reviewing any Assignment and Assumption Agreement required hereunder. 7.2 Successors and Assigns. All of the terms, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided, and the tern "Developer shall only mean the owner of a Phase of Development from time to time during the period of such entity's ownership, provided that the procedures set forth 882/015610-0084 750537 11 a02/26/07 -22- in this Agreement for that entity's acquisition and or disposition of the ownership have been followed, including, without limitation, the provisions of Section 7.1. 7.3 Assignment by City. City may assign or transfer any of its rights or obligations under this Agreement with the approval of the Developer, which approval shall not be unreasonably withheld. 8.0 MISCELLANEOUS 8.1 Notices. All notices permitted or required hereunder must be in writing and shall be effected by (i) personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii) reputable same -day or overnight delivery service that provides a receipt showing date and time of delivery, addressed to the following parties, or to such other address as any party may from time to time designate in writing in the manner as provided herein: To City: City of La Quinta 78-495 Calle Tampico La Quinta, California 92253 Attn: City Manager m N Telephone: (760) 777-7031 V 0~ n o Facsimile: (760) 777-7101 m 9NN l With a copy to: Rutan & Tucker, LLP ti m 611 Anton Boulevard, Suite 1400 o Costa Mesa, California 92626 e Attn: M. Katherine Jenson e Telephone: (714) 641-5100 e Facsimile: (714) 546-9035 e s To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 sAttn: Theodore R. Lennon, Jr. Telephone: (760) 674-2200 SCE e? Facsimile: (760) 779-1646 With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064 Attn: Timi Anyon Hallem Telephone: (310) 312-4217 Facsimile: (310) 312-4224 Any written notice, demand or communication shall be deemed received immediately if personally delivered or delivered by delivery service to the addresses above, and shall be deemed 882/015610-0084 750537 11 a02/26/07 -23- received on the third day from the date it is postmarked if delivered by registered or certified mail. 8.2 Enforced Delay; Extension of Times of Performance. In addition to specific provisions of this Agreement, performance by either party hereunder shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended, where delays or defaults are due to causes beyond the control or without the fault of the party claiming an extension of time to perform, which may include the following: war; insurrection; acts of terrorism; strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation; unusually severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or omissions of the other party; or acts or failures to act of the City or any other public or governmental agency or entity (except that acts or failures to act of the City shall not excuse performance by the City). Notwithstanding anything to the contrary in this Agreement, an extension of time for any such cause shall only be for the period of the enforced delay and shall commence to ran from the time of the commencement of the cause, if notice: by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause. Times of performance under this Agreement may also be extended in writing by the mutual agreement of City and Developer. Notwithstanding any provision of this Agreement to the contrary, Developer is not entitled pursuant to this Section 8.2 to an extension of time to perform because of past, present or fixture difficulty in obtaining M mm suitable construction or permanent financing to commence or complete the Project or any Phase W m- of Development or because of economic or market conditions. �'O % 8.3 BindingEffect. m M N m Except as otherwise provided in this Agreement, this Agreement, and all of the terms and conditions hereof, shall be binding upon and inure to the benefit of the parties, any subsequent v 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. s s 8.4 Independent Entity. s The parties acknowledge that, in entering into and performing this Agreement, each of the Developer and the City is acting as an independent entity and not as an agent of the other in o any respect. No joint venture is formed by this Agreement. s s v 8.5 Agreement Not to Benefit Third Parties. s s This Agreement is made for the sole benefit of the parties, and no other person shall be deemed to have any privity of contract under this Agreement nor any right to rely on this Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on this Agreement nor be deemed to be a third party beneficiary under this Agreement. Notwithstanding the immediately preceding sentence, the Agency shall be an intended third party beneficiary to this Agreement. 882/015610-0084 750537 12 a02/26/07 —24— 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 for the benefit of the City's and the Agency's adjoining properties, 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 Officers and Employees. No official, officer, employee, agent or representative of City, acting in his/her official capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs, damage, claim, liability, or judgment, arising out of or in connection to this Agreement, or for any act or omission on the part of City. 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 of 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.). (D dp ^ m ° 8.9 Amendment of Agreement. mNN mThis 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. Developer shall be required to reimburse City for all costs City incurs in negotiating, preparing, and processing any such alterations, changes, or modifications. In connection with any request for an alteration, change or modification, Developer shall deposit with the City the sum of Ten Thousand Dollars ($10,000). Notwithstanding the foregoing, the City Manager shall have the discretion to authorize a lesser o deposit, in the event he or she determines the proposed alteration, change or modification is minor. In the event the funds on deposit are depleted, City shall notify Developer of the same, and Developer shall deposit with the City an additional Five Thousand Dollars ($5,000) to complete processing of the requested alteration, change or modification. Developer shall make additional deposits to City, as needed, pursuant to the foregoing process, until the requested alteration, change, or modification is finalized. Within sixty (60) days after such alteration, change or modification is finalized, City shall reimburse the Developer any unused sums. 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 882/015610-0084 750537 12 .02/26/07 -25- be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the covenants or conditions to be performed by the other party shall be construed or deemed a waiver of any succeeding breach or nonperformance of the same or other covenants and conditions hereof. 8.11 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the parties. 8.12 Cooperation in Carrying Out Agreement. Each party shall take such actions and execute and deliver to the other all such further instruments and documents as may be reasonably necessary to carry out this Agreement in order to provide and secure to the other party the full and complete enjoyment of its rights and privileges hereunder. 2 m 8.13 Estoppel Certificate. m0N ti [ll W •• m o Any party hereunder may, at any time, deliver written notice to any other party requesting mN such party to certify in writing that, to the best knowledge of the certifying party, (i) this N m 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 ten (10) days following approval of the proposed MOM estoppel certificate by the City Attorney, which approval shall not be unreasonably withheld or delayed. The City Manager, Assistant City Manager, and Community Development Director are each authorized to sign and deliver an estoppel certificate on behalf of the City. City acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees. 8.14 Construction. This terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction that might otherwise apply. As used in this Agreement, and as the context may require, the singular includes the plural and vice versa, and the masculine gender includes the feminine and vice versa. 8.15 Recordation. This Agreement shall be recorded with the County Recorder of Riverside County at Developer's cost, if any, within the period required by Government Code Section 65868.5. Amendments approved by the parties, and any cancellation or termination of this Agreement, shall be similarly recorded. 882/015610-0084 750537 1"). a02/26/07 -26- 8.16 Captions and References. The captions of the paragraphs and subparagraphs of this Agreement are solely for convenience of reference, and shall be disregarded in the construction and interpretation of this Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and exhibits of this Agreement. 8.17 Time. Time is of the essence in the performance of this Agreement and of each and every term and condition hereof as to which time is an element. 8.18 Recitals & Exhibits Incorporated; Entire Agreement. The Recitals to this Agreement, all of the exhibits and attachments to this Agreement, and the DDA 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 M mm previous negotiations, discussions and agreements between the parties, and no parole evidence of m o any prior or other agreement, other than the DDA, shall be permitted to contradict or vary the mNM terms hereof. 0 C,1 m 8.19 Exhibits. Exhibits "A" — "G" to which reference is made in this Agreement are deemed incorporated herein in their entirety. Said exhibits are identified as follows: A-1 Legal Description of Site A-2 Site Map B Depiction of Public Improvements C Four Star Quality Requirements D Mitigation Monitoring Program E Form of City Declaration of CC&Rs F List of Pre -Approved Operators G Form of Assignment and Assumption Agreement v 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; Representations and Warranties. 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 882/0 15610-0084 750537 12 a02/26/07 -27- 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 City pprovals and Actions. Whenever a reference is made in this Agreement to an action or approval to be undertaken by the City Manager, his or her authorized designee is authorized to act on behalf of the City unless specifically provided otherwise or the law otherwise requires. 8.23 Governing Law; Litigation Matters. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement without regard to conflicts of law principles. Any action at law or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting the validity of this Agreement or any provision hereof shall be brought in the Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in said county, and the parties hereto waive all provisions of law providing for the filing, removal, or change of venue to any other court. Service of process on City shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside of California. In the event of any action between the parties hereto seeking enforcement of any of the terms of this Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation shall be awarded, in addition to such relief to which such parry is entitled, its reasonable attorney's fees, expert witness fees, and litigation costs and expenses. 8.24 No Brokers. Each of the City and the Developer represents to the other party that it has not engaged the services of any finder or broker and that it is not liable for any real estate commissions, broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold harmless the other party from such commissions or fees as are alleged to be due from the party making such representations. [end — signature page follows] 1 e2/015610-0084 750537 12 a02/26/07 ma IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as of the Reference Date. APPROVED AS TO FORM RUT, & TUCK R, LLP (% ity Attorney "CITY" CITY OF LA QUINTA, a California municipal co oration By�� City Manager "DEVELOPER" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: IIIIIIIIIIIIIIIIIIIIII IIIII IIIIII IIIIII III IIIIIIIII IIII 0820032 of 1230P 882/015610-0084 750537 12 a02/26/07 -29- STATE OF CALIFORNIA ► COUNTY OF RIVERSIDE ) ss. CITY OF LA QUINTA ) On February 27, 2007 , before me, Regenia Hensley, Notary Public, personally appeared THOMAS P. GENOVESE, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. RE( -IA HENSLE Noi: ry Public Commission # 1521423 Expiration: October 23, 2008 STATE OF CALIFORNIA ► COUNTY OF RIVERSIDE ► ss. CITY OF LA QUINTA ► (Seal) On February 27, 2007 , before me, Regenia Hensley, Notary Public, personally appeared TED R. LENNON, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. (Seal) REGXXIIA HENSLEY Notary Public Commission # 1521423 Expiration: October 23, 2008 -30- REGENIA HENSLEY Commlaslon # 1521423 ..� Notary Public - CalifornW. Rlversitle County MvCbr'rif!.EANM0ot23.2008rqWq 982/015610-0084 7 50537 12 a0226/07 IIIIIIIIIIIIII IIIIIIIIIIII IIIIIIIIIIII III IIIIIIIII IN08 000300001230� EXHIBIT "A-1" LEGAL DESCRIPTION OF SITE [To be inserted] IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII BE3�0034 of 230R 882/01561 A0084 750537 12 a02/26/07 EXHIBIT A-1 EXHIBIT "A" LOT 3 'THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE '7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY I? IGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE "THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43°45'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9°20'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF 2087-0502623 I IIIIII (IIIIII III El ill IIIIII El III INIIII IIII 08/03/35 of08 23 A SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7010' 16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84°42'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107°36'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1°I1'10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21°42'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034' 17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51 °57'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS ' CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL .ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET; THENCE SOUTH 89°10'29" WEST 235.22 FEET; THENCE SOUTH 00000'00" EAST 140.01 FEET; THENCE SOUTH 89°10'29" WEST 2',73.96 FEET; THENCE NORTH 24022'35" WEST 22.27 FEET; THENCE NORTH 33058'41" WEST 7.49 FEET; THENCE NORTH 71°08'05" WEST 26.96 FEET TO THE BEGINNING OF A NON -TANGENT 46.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 87031'26" A DISTANCE OF 70.27 FEET; THENCE NORTH 57029'35" WEST 12.72 FEET TO THE BEGINNING OF A 67.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39040'43" A DISTANCE OF 46.40 FEET TOA POINT OF REVERSE CURVATURE WITH A 96.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL .ANGLE OF 63°20'45" A DISTANCE OF 106.14 FEET; THENCE NORTH 33°48'46"' WEST 21.80 FEET; THENCE NORTH 33048'46" WEST 52.19 FEET; THENCE NORTH 26°06'10" WEST 72.34 FEET TO THE BEGINNING OF A NON -TANGENT 196.00 FEET RADIUS CURVE CONCAVE EASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 64121'31" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45049'59" A DISTANCE OF 156.79 FEET; THENCE NORTH 20011'30" EAST 110.45 FEET TO THE BEGINNING OF A 196.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG IIIIII IIIIIII III IIIII IIIII 1111111111111111111111111111 08 0007-0582623 360 f 1230R THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44008'01" A DISTANCE OF 150.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 187.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46004'51" A DISTANCE OF 150.40 FEET; THENCE NORTH 22009' l0" EAST 99.07 FEET TO THE BEGINNING OF A NON -TANGENT 210.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 67051'40" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47034'55" A DISTANCE OF 174.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50026'40" A DISTANCE OF 32.58 FEET TO A POINT OF REVERSE CURVATURE WITH A 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 64159'55" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 75009102" A DISTANCE OF 107.55 FEET; THENCE NORTH 90000'00" EAST 428.65 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT '`A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 855,764 SQ.FT. 19.646 ACRES No. 4"S t� OHN F. YO G , PLpr665 DATt IIIIII III II III IIIII IIIII III I IIIIII II IIIII II IIII 08 20 A37 of 3230R in I i I ; II I , I �i I I I? I I 5� I � I I I SIDE COUNTY CALIFORNIA SHEET I OF 2 EXHIBIT "B" LOT 3 TPM 33367 1 ALL AMERICAN _CANAL -- — — — — — — — _B9'S2'48'_W 198875' .� T• I 2 , I I ,rP.OB 7L 5.7 .ICF;E, � I %or '_ I 4i.J FlLRE> II �=467/4SI" =150 I I _L=15000'40'—� I I I ti lI I I p=45Y959" I I R=19600' � C=156.79' II N261900"At I NJJ'48'46"W — I I 5219' I L=632 SCALE.' \ R= 906 1 "=300' \ \ A=47'J4'55" R=210 00' L=174.40' L17Y 3 19.06 ACR66 =TTJ021 R=567 L=272.2 R=196.00' L=150.97' NJJW'46"W lu' lI 21.60'L=J94043' =26YI0'II" -R- 6700' R=5080 C= 4640 L=235 96" "W 70=B73/ R- = 70.z0 J.2' 19 : 867'29 'W 590 I 2'27396' II I I N2471J5'W I 22.27' I I F. YOUNG Exp. 9-30-08 No. 4565 �O l �;�1 - 1665 DATE �rF OF cn�� I II I I I I I I I I 31 I 0)I I OI 21 I I I I I I 8 9 17 16 SECTI N COR REVISED TENTATIVE i5.-0068 CONSTRUCTION TESTING &ENGINEERING, INC. PARCEL MAP 33367 "=500' PLANNING -CIVIL ENGINEERING - LAND SURVEYING GEOTECHNICAL R 19* 1441 LIONTIEL ROAD, SUITE 115 ESCONDIDO CA 9PO96, PH 116OI 745.4955 LOT 3 1 15 06 JPR IlllllllllllllIII llllllllllllll111111111111111111111111 68.26838 of 1230R OE COUNTY CAI UHIBIT 'B' LOT 3 DATA TABLE No, DELTA IBEARING RADIUS LENGTH 1 SOO'07'12 E - 12324' 2 p=323448" 18300' 104.06' 3 Q=3654'12" 267.00" 171.97" 4 SOO 03'16 "W - 48.18' 51 Q=4106'44" 32.00' 22.96' 61 Q=12232'06 "" 63.00' 134.73' 71 Q=4345'49" J200' 24.44' 81 1 p=284023"• 633.00' 316.78' 9 1 p=097038,, 63300' 10323' 10 1 p=165836" 49700" 147.26' 11 1 Q = 4236 50" 26700 198.58' 12 p=1073627" 29 50' 55.40' 13 Q = 017 1"10" 614.85' 1273' 14 S2142 36"W - 75.54' 15 Q=0046'06" 539.31' 723" M61 I Q=60'1757" 22.00' 23.15' 1/1 1 Q=2434'17" 9300' 39.88' 18 Q=515748" 37 00' J3.56' 19 N3358 "41 "W - 7 49' 20 N71 '08'05 "W - 26.96' 21 Q=5026'40" J700' 32.58" 22 Q=282447" 82.00' 40.66' SHEET 2 OF 2 REVISED TENTATIVE """ 15-0066 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 PLANNING CIVIL ENGINEERING- LAND SGRVE YING- GECTECNNICAL �� OP�Yn1 �, I1<I NOIIRIEL ROAD SUITE M ESCONDIDO CA 9tOt6. PH (]SOI ]16 4955 LOT 3 11 /1S/!IR IDo IIIII IIII II III IIIII IIIII IIIIII IIIIII 111111111111 III 08 030390 08 of 1230R EXHIBIT "A" LOT 4 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 198835 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 1123.24 FEET TO THE BEGINNING OF A I83.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO THE BEGINNING OF A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08017'50" A DISTANCE OF 48.22 FEET TO THE BEGINNING OF A 32.00 FEET RADIUS 'CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41"06'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE, SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ,ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF I03.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ,ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TO IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIII IIII 1111 es e0040 ofes F 1230R THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE 114ORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" 'NEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107°36'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF I'I P10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; 'THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A 14ON-TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25°52'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A .37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26`00' 11" A DISTANCE OF 230.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4008'25" A DISTANCE OF 36.71 FEET; THENCE SOUTH 6134'32" EAST 103.90 FEET; THENCE SOUTH 89°10'29" WEST 250.00 FEET; THENCE NORTH 0°00'00" EAST 140.01 FEET; THENCE NORTH 89110'29" EAST 235.22 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 33,888 SQ.FT gm W i I� les • is 0.78 ACRES IIIII IIIIII III IIIII IIIII IIII I IIIII) II IIII IIII III 08 003 41 of 1230R 9 SIDE COUNTY CALIFORNM SHEET 1 OF 2 EXHIBIT 'JB " LOT 4 TPM 33367 ALL AMERICAN_CA_NA_T —L _ 24 6952.46'N' T96&-75 �r�l I -- I a � I � I ,I 4 I 1 6 \l �� LOT 1/ 6 6,7 ACRES 9 \ - \\ L07' 3 I 19,65 ACRES a7TJ011' R=567.pppppppppppp — — — — — — — — — — LS2M2p, o-26VO,l R-50d00I I L=23055 . �X &=008A 5' R-50600 L- J6.77' �250.00' •, III L 0 r s I 1 i I�I tann� v JOHN F. YOUNG Exp. 9-30-08 S 6 * No. 4665 aTE �T9TFOc '.,\F�% CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLANNING CIVIL ENGINEERING - LAND SURVEYING - GEOTECNNICAL LOT 4 I/41 NONTIEL ROAD, SUITE 115 ESCONDIDO CA. 92926, PN:1790j 7/9/955 1 8 9 17 16 SEC77 N COR 15-0068 1'=300, 1111111111111111111111111111111111111111111111111111111 08 00042 of 8� 30fi RIVERSIDE SHEET 2 OF 2 EXHIBIT 'B' LOT 4 DATA TABLE No.I DELTAIBEARING RADIUS LENGTH 1' 500'07'12 E — 123.24 2 p=323448" 183.00' 104.06' 3 Q=3654'T 26Z00' 171.97' 4 p=087750" 333.00' 4822 5 Q =410644'" 3200' 22, 96' E1 Q=12232'06" 63.00' 134.73' 7 1 p=434549" 3200" 1 24.44' 8 p=28'40'23" 633 00' 316.78' 9 p=092038" 633.00' 10323" 10 Q=165836" 497.00' 147.26' 11 p=4236"50" 26700' 198.58' 12 p = l0736 27" 29.50' 55. 40' 7 p=017170" 614.85' 1273' 14 S21-42'36"W — 75.54 fi p=0046"06" 539.31 7.23' 16 p=607757" 22.00' 2315' 1171 1 p=2434"17" 93.00' 39.88' 111 I p=515748" 37.00' 33.56' REVISED TENTATIVE " "` is-om CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1•=300' PLAN N INS G CIVIL EN SIN EER INO-LAND SURVEYING CEOSECNNICAL LOT 4 14/1 YONTIEL ROAD, SUIIE 115 ESCONDIDO CA. 120E0, PN:)100) 745-4055 11 /15/n6 IDD IIIIII IIIIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 08 0904 0of 1230R EXHIBIT "A" LOT 5 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89152'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE 13EGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43°45'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE; SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28°40'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 2:67.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" 11111111111111111111111111111111111111111IIII III III as/e0044 of 10R A DISTANCE OF 272.20 FEET; THENCE SOUTH 7"10'16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1011' 10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A, DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25"52'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24034'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE. CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30"08'36" A DISTANCE OF 267.26 FEET; THENCE SOUTH 6"34'32" EAST 103.90 FEET; TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 6"34'32" EAST 240.83 FEET TO THE BEGINNING OF A 1312.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13051' 15" A DISTANCE OF 317.24 FEET; THENCE SOUTH 7016'43" WEST 281.12 FEET; THENCE NORTH 90"00'00" WEST 248.02 FEET TO THE A POINT ON THE ARC OF A NON -TANGENT 62.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 75001'19" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CUREVE THROUGH A CENTRAL ANGLE OF 105"17'29" A DISTANCE OF 113.94 FEET; THENCE SOUTH 68"05'01" WEST 58.78 FEET TO THE BEGINNING OF A 290.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 53043'38" A DISTANCE OF 271.94 FEET TO A POINT OF COMPOUND CURVATURE WITH A 130.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88002'34" A DISTANCE OF 199.76 FEET TO A POINT OF REVERSE CURVATURE WITH A WITH A 128.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45"09' 13" A DISTANCE OF 100.87 FEET; THENCE NORTH 15118'00" WEST 77.53 FEET TO THE 2007-0502623 IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIIII III IIII 08/03/450of 8 23iP BEGINNING OF A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37034'59" A DISTANCE OF 41.32 FEET; THENCE NORTH 22016'59" EAST 85.32 FEET TO THE BEGINNING OF A 220.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18049'53" A DISTANCE OF 72.31 FEET TO A POINT OF REVERSE; CURVATURE WITH A 46.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 84°39' 14" A DISTANCE OF 67.96 FEET; THENCE NORTH 88°06'20" EAST 44.44 FEET TO THE BEGINNING OF A 72.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64022'26" A DISTANCE OF 80.89 FEET TO A POINT OF COMPOUND CURVATURE WITH A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67016'50" A DISTANCE OF 117.43 FEET; THENCE NORTH 56038'44" WEST 26.25 FEET; THENCE NORTH 89°10'29" EAST 523.96 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 517,687 SQ.FT. 11.88 ACRES No. 4466 JOHN F. YO G , PL 4665 D TE IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII IIIIIIIIIIIIIIII 00 00046 of 1230R RIVERSIDE COUNTY CALIFORNIA SHEET 1 OF 2 EXHIBIT "B" LOT 5 TPM 33367 ` -- -- 895248 198H 75' I I I C� I I I ram\ T rr I I Q h=1730' I R=56700' r U7 5 'I 1, C=17220 Ii 1915 A�„A, l 114.7J' I �1 I 0=J0n836" I R=508.00' I 4 I I L=26226' or n ,e ncnE� 506 34 J2"E 31 N89'I 19'E I 10390' \ 523.96' TPOB ' LOT 10 o I I LOT 6 I I I i' raae nonce I I SCALE. I ( I I I "=400" -- � - -- - -- -- - - -- -- 8 9 1716 SECT/ N COR AEJOHN F.0 U G��n Exp. 9-30-08 No. 30W1k F0E CN�v0 REVISED TENTATIVE 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 9xE 1"=400' PLANNING CIVIL ENGINEERING -LAND SURVEYING-GEOEECNNICAI 4EE1 MOIIEIEL ROAD SUIIE 115 ESCONDIDO CA 92626, PH 10601141955 LOT 5 - 12 05 06 EMI IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIIII III 1111 08?0 0 47 of 238E OE COUNTY CALIFORNIA EXHIBIT 'B' LOT 5 DATA TABLE No. I DELTA BEARING RADIUS LENGTH 1 1 S00'07'12'E - 12J.24 21 1 p=323448" 183 00' 104.06' 3 p=3654'12" 267.00' 17197' 4 p-08*17'S0" 333.00' 48.22' 5 p=4106'44" 32.00' 2296' 6 p=12232'06" 63.00' 134.73' 7 p=4345'49" 32.00" 2444' 8 p =28 40'23" 633.00' 316.78' 9 p=0970'38" 633.00' 10323' 10 1 p =16 5836" 497.00' 14726' 11 p =4236 50" 267.00' 198.58' 12 p=10736 27" 29.50' 55. 40' 13 p = 01 '11 "10 614.85' 12.73' 14 S21'4236"W - 75.54' 15 p=00'46'06" 539.31' 723' 16 p=60'17'57" 22.00' 23.15' 77 1 p=2434'77" 93.00' 39.88, 18 p=515748" 3700' 3356' 19 50634'32'E - 240.83 21 1y1351'15" 1312.00'1 31724' 22 S07'16'43"W - 281,12' 3 I N9000'00"W - 248.02' 24 p=105'1729" 62.00' 113.94' 5 S68 05'01 "W - 58.78' 6 p=53'43'38" 290.00' 271.94' 7 p=88'02'34" 130, 00' 199.76' 18 p=45'09'13" 128.00' 100.87' 29 N15'18'00 "W - 77 53' 30 p=3734'S9" 6300' 41.32' 31 N22'16'S9 E - 85.32' 32 p=18'4953" 220.00' 72.31' 33 p=8439'l4" 46.00' 6796' 34 N88 06'20T - 44. 44' 35 p=6422'26" 72.00' 80.89' 36 p=67'16'S0" 100.00' 34.40' 38 N5638'44"W - 26.25' SHEET 2 OF 2 REVISED TENTATIVE 15-0088 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 RIANNINGCIVIL ENGIN E ERINGIAN D SURVEYING -GEDTECNN ICAI [gNNI NI I'll NOR RO60 SUITE IIS ESCONDIDO CA 92026, VN 1260E T16 69SS LOT 5 19/05/Dfi DTG 1111111111111111111111111111111111111111111111111111111 0628048 of 238fl EXHIBIT "A" LOT 11 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE 140RTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1922.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE 1EGINNING OF A 117.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 66.53 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28027' 17" A DISTANCE OF 165.38 FEET TO A POINT OF INTERSECTION WITH A NON -TANGENT 150.00 FEET RADIUS CURVE HAVING A RADIAL LINE TO WHICH BEARS SOUTH 0003'38" EAST, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47°19'48" A DISTANCE OF 123.91 FEET TO A POINT OF REVERSE CURVATURE WITH A 899.20 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20°39'06" A DISTANCE OF 324.11 FEET TO A POINT OF COMPOUND CURVATURE WITH A 450.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41017'02" A DISTANCE OF 317.27 FEET; THENCE NORTH 75°20'02" EAST 130.18 FEET TO THE BEGINNING OF A 200.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50029'26" A DISTANCE OF 176.25 FEET; THENCE SOUTH 54°10'32" EAST 36.66 FEET TO THE BEGINNING OF A 75.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71028'15" A DISTANCE 93.56 FEET; THENCE SOUTH 17017'43" WEST 74.78 FEET TO THE BEGINNING OF A 90.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65055'38" A DISTANCE OF 103.56 FEET; THENCE SOUTH 48°37'55 EAST 196.68 FEET TO THE 1EGINNING OF A 125.00 FEET RADIUS CURVE CONCAVE WESATERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 73004'09" A DISTANCE OF 159.41 FEET; THENCE SOUTH 24026' 14" WEST 59.02 FEET TO THE BEGINNING OF A 1.75.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE SOUTHWESTERLY ALONG IIIIII IIIII11111111111111111111111111111111111111 ee,e004 e5t 123eR THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65024'55: A DISTANCE OF 189.12 FEET; THENCE SOUTH 89°51'09" WEST 116.33 FEET TO THE BEGINNING OF A 140.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 94018'57" A DISTANCE OF 230.46 FEET; THENCE NORTH 4°10'06 EAST 111.79 FEET TO THIS BEGINNING OF A 115.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 810I8'13" A DISTANCE OF 149.84 FEET; THENCE NORTH 77°08'07" WEST 16.05 FEET TO A POINT OF INTERSECTION WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 68°39'29" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41027'06" A DISTANCE OF 240.91 FEET TO A POINT OF COMPOUND CURVATURE WITH A 563.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 166.82 FEET TO A POINT OF REVERSE CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL .ANGLE OF 37017'37" A DISTANCE OF 369.06 FEET TO A POINT OF COMPOUND CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50025'57" A DISTANCE OF 28.17 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63051'20" A DISTANCE OF 70.21 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54°46'50" A DISTANCE OF 30.60 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5°19'20" A DISTANCE OF 24.80 FEET TO A POINT OF COMPOUNF CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8"26'55" A DISTANCE OF 49.10 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 375,971 SQ.FT �TOHN F. Y G , P 665 8.631 ACRES IIIIII III 1111111111 Hill IIIIII II Hid III IN 08 0005 0of 1230R SHEET 1 OF 2 n I 'rill- 1 LOT 2 46.94 ACRES LG I 8.62 �I I I I I I� C I� I� I ' � I I I \ 1 \SCALE: 1 "=300' S 4665 EXHIBIT "B 1) LOT 11 TPM 33367 COACHELLA CANAL _ -------- --- 89-5T'48'W T 19T2_75 o I Is S/06 JOHN F. YOUNG Exp. 9-30-06 No. 4665 liEVINEI1 '1'L' iV'1'A'1'1VL' 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 1"=300' PLANNING -CIVIL ENGINEERING -LAND SURVEYING-GEOTECNNICAL LOT 1 1 1441 MONTIEL ROAD, SUITE 115 ESCONDIDO CA 92026, M17601 766d956 _ l l 20 06 JPR IIIIIIIIIIIIIIIII IIIIIIIIIIIIIIIIIIIIIIII11111111 III 6E9z0a51 of E263 of 123 SHEEr 2 OF 22 EXHIBIT V LOT 11 DATA TABLE No. I DELTA EARING RADIUS LENGTH SOOD712 E — 123.24 2 p=323448" 117.00' 66.53' p=2827'17- 33.100' 165.38' 4 1 p=477948 150.00' 123.91' 5 1 A =2039 06 899.20 324.11 6r- I p=417702 450.00 324.24' 7 1 N7570 02 E — 130.18 =507926 200.00 17625' 9 S5470 32 E — 36.66 10 1p=717815 75 00' 93.56' 11 I S177743 W — 74.78 12 1 p=655538 90.00 103.56 13 I S483755 E — 196.68 14 p=73'04'09' 125.00 159.41' 15 S247674 W — 59.02 16 p=657455' 175.00' 199.80 1 S895109'W — 116.33 18 p =947857' 140.00' 230.46' 9 N0470 06 E — 111.79 =6178'13" 115.00' 163.19' N77198 07 W — 16.05 p =417 06' 33300' 240.91 p=1658'36' 563.00' 166.82' 4 L=377737' 567.00' 369.06' p=507557' 32.00 28.17' 1 p=635120 63.00 70.21 p =54 46 50 32.00' 30.60' p=057920 267.00 24.80' 9 p =0876 55 333.00' 49.10 CONSTRUCTION TESTING & ENGINEERING, INC. I PARCEL MAP 33367 PLANNING CIVIL ENGINEERING LAND SURVEYING GEDiEtNNICAL LOT 1 1 14 1 TIGHT LEI ROAD SUITE 115 ESCONDIDO CA 92026 PH ❑60I iN6 /955 15-0068 1'=too' IIIIII IIIIIII III IIIII IIIII IIIIIIIIIIIIIIIIIIIIIIIIIIII 0820052 of 230F EXHIBIT "A" LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5 AND THE NORTH WEST QUARTER OF THE NORTH 'WEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID S17CTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 41057'54" WEST 674.79 FEET; THENCE NORTH 88027'35" WEST 244.20 FEET; THENCE NORTH 7'47'15" WEST 289.62 FEET; THENCE NORTH 83°26'27 ]EAST 398.98 FEET; THENCE SOUTH 29058'01" EAST 952.82 FEET, THENCE SOUTH 52039'03" EAST 485.41 FEET; THENCE SOUTH 571� 6' l6" EAST 463.15 FEET; THENCE SOUTH 30°58'20" WEST 183.52 FEET TO THE: BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 10°57'45" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A 118.00 FEET RADIUS CURVE HAVING A RADIAL TO WHICH BEARS SOUTH 21°49'41" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40°20'08" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30032' 16" A DISTANCE OF 45.84 FEET; THENCE SOUTH 28000'41" EAST 18.67 FEET; THENCE SOUTH 61°59'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 57000'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.84 FEET RADIUS CURVE CONCAVE NORTHEASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 20004'07" EAST; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36031'16" A DISTANCE OF 145.23 FEET; THENCE NORTH 33024'37" WEST 99.07 FEET; THENCE NORTH 66°23'28" EAST 120.28 FEET; THENCE NORTH 23°38'13" WEST 532.29 FEET; THENCE NORTH 41057'54" WEST 149.34 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 600,614 SQ. FT. 13.79 ACRES f ! 1 D Eq er>tola /OHN F. YOUp , PL PLV665 DATt7� IIIliltIII Ell IIIII IIIIII IIIIII III 1111111111 08 530 f 1230H F. LOT A °� kf / nF DATE CONSTRUCTION TESTING & ENGINEERING, INC. PLANNING -CIVIL ENGINEERING - LAND SURVEYING - GEOTECNNICAL 1141 NONTIEL ROAD, SUITE 115 ESCONDIDO CA 111121, PN:p101 741-4155 LOT A LOT 19 I Ws-F JOHN F. YOUNG Exp. 9-30-08 llo. 4555 PARCEL MAP 33367 FOR LOT 19 SCALE. 1 "=300' 1 " 10=3w 1 IIIIII IIIIIII III IIIII 111111111111111111111111111111111 08?0 0 54 of 1230R EXHIBIT "A" LOT 22 THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 1321.32 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 8; THENCE SOUTH 0000'57" WEST ALONG THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER 896.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 84°57'26" EAST 1 15.10 FEET; THENCE SOUTH 80055'40" EAST 31.00 FEET; THENCE SOUTH 10°58'24" WEST 69.75 FEET; THENCE SOUTH 10036'56" WEST 57.87 FEET; THENCE SOUTH 8017'25" EAST 35.32 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO WHICH 13EARS SOUTH 68010'42" WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66018'23" A. DISTANCE OF 65.96 FEET; THENCE SOUTH 48016159" WEST 4.08 FEET; THENCE SOUTH 61045"27" WEST 4.67 FEET; THENCE SOUTH 63°23'36 WEST 6.23 FEET; THENCE SOUTH 57017'10" WEST 6.01 FEET; THENCE SOUTH 59°28'05" WEST 5.26 FEET; THENCE SOUTH 70005'07 WEST 5.56 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO WHICH BEARS NORTH 13' 18'47" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50056'06" A DISTANCE OF 50.67 FEET; THENCE SOUTH 48°18'02" WEST 113.21 FEET; THENCE SOUTH 20'03' 17" WEST 15.59 FEET; THENCE NORTH 69051' 12" WEST 40.59 FEET; THENCE SOUTH 24'11'42" WEST 78.02 FEET; THENCE NORTH 64037'29" WEST 151.50 FEET; THENCE NORTH 29010'52" BAST 266.14 FEET; THENCE NORTH 84157'26" EAST 53.90 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "B" ATTACHED HERETO AND MADE A (PART HEREOF. CONTAINING: 63,531 SQ. FT f D OHN F. YOU I , PLS 4 1.46 ACRE 2967-9562623 IIIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIIIII II IIII 08183J550of 8R 123 SHEET 1 OF 2 615 ^� 8 N89w23"E 1311.31' } 1 15t W4'51'16T EXHIBIT 'B' LOTS 20 & 22 LOT B SCALE:1 "=100' LOTi22 LOT A LOT 20 LOT A v JOHN F. YOUNG Exp. 9-30-08 Na 4665 ti /2 r9lF OF CA��f�Q OHN F. YOU S 4665 IDA TE CONSTRUCTION TESTING & ENGINEERING CONSTRUCTION TESTING & ENGINEERING, INCIPARCEL MAP 33367 'G" r=iooMAP 33367 'G" 1•=ioo' 144E M NG EL ROAD, EN61RE ERI NG ONDID SURVEYING GE 691 746 456 FOR LOTS 20 � 21 ILA HI NllEL CIVIL N611E 16NG. LAD 6R N102fi RN 1166E HNICAL 10�27�G8 IIIIIII IIIIIII III IIIII IIIII IIIIII IIIII III IIIIIII II IIII 08 00056 of ie230R RIVERSIDE COUNTY CA EXHIBIT 'B' LOTS 20 & 22 DATA TABLE No. I DELTA FARING RADIUS LENGTH 1I 0=34019 950.00 60.88 21 1 L =44V8'05' 60.00 46.22' 3I N247340 E - 50.28' 4 S69'5112 E - 40.59 5 N2097317 E - 15.59 N487802 E - 13.21 7 A =5056 06 57.00 50.67 N70n5 07 E - 5 56 N5978 05 f - 5.26 10 N577 7 RIO E - 6.01 11 N637336 E - 6.23 I2 N614527 E - 4.67 13 N4876 59 E - 4.08 14 S087725 E - 35.32' 15 S805540 E - T00 SHEET 2 OF 2 REVISED TENTATIVE -- 15-0068 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 /° ` i•=ioo• 14AIN Jp6GIEL INOA0fYIL SUIJE115NGINEI'E560ENDII00CAR 12026GN9 IE260174614955 FOR LOTS 20 & 21 10/27/06 JPR IIIIII IIIIIII III IIIII IIIII 1111111111111111111111111111 08 0007-952623 / 57 �80o088230R EXHIBIT `°A" LOT 23 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE '7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY ][LIGHT -OF -WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89052'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007' 12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36°54'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8017'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41 °06'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE; SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28°40'23" A DISTANCE OF 316.78 FEET; THENCE NORTH 90°00'00" WEST 428.65 FEET TO A POINT ON THE ARC OF A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 8695' 18" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46044'15" A DISTANCE OF 66.89 FEET; THENCE NORTH 50008'57" WEST 134.38 FEET TO THE BEGINNING OF A 47.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29029'38" A DISTANCE OF 24.19 FEET; THENCE NORTH 4°13'09" WEST 26.65 FEET; THENCE NORTH 16°50'59" WEST 18.54 FEET; THENCE NORTH :8012157" WEST 19.28 FEET TO THE BEGINNING OF A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF 2007-6502623 IIIIIIIIIIIIII (IIIIIII IIIII IIIIII IIIIII III IIIIIIIIIIIII 09R 00103/59 0£$£3 SAID CURVE THROUGH A CENTRAL ANGLE OF 54007'55" A DISTANCE OF 34.96 FEET; THENCE NORTH 27°09'48" EAST 40.67 FEET TO THE BEGINNING OF A 250.00 FEET RADIUS CURVE. CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22050'21" A DISTANCE OF 99.65 FEET TO A POINT OF REVERSE CURVATURE WITH A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 85040'33" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54026'03" A DISTANCE OF 77.90 FEET; THENCE NORTH 27059'09" EAST 16.70 FEET TO THE BEGINNING OF A 56.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28038'36" A DISTANCE OF 28.00 FEET; THENCE NORTH 19°10'35" EAST 27.25 FEET TO THE BEGINNING OF A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35032'06" A DISTANCE OF 62.02 FEET; THENCE NORTH 40°04'06" WEST 64.22 FEET; THENCE NORTH 42°39'54" WEST 47.50 FEET; THENCE NORTH 37°36'08" WEST 102.14 FEET TO A POINT ON SAID SOUTHERLY RIGHT-OF-WAY OF THE ALL AMERICAN CANAL; THENCE NORTH 89052'48" EAST ALONG SAID RIGHT-OF-WAY 215.01 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 166,459 SQ.FT. 3.82 ACRES No. 4606 G/ /2 S © 6 OHN F. YO G , P 4665 DYFE IIIIII IIIIIIIIII IIIIIIIIII IIIIII IIIIII IIIIIIII I II IIII 08 0005 0of 1230R SHEEF 1 OF 2 SCALE: 1 ' =300 •/%�� 5 SOT Z" .46,94 AW7E8 it I f '`y I�yf h1 •, a '•, N� LS 4665 EXHIBIT "B" LOT 23 TPM 33367 —r l —j — — GL1&C—fIELLA CAtYYAL _ - �_ _ y let 4 -I - - ,�__ - I —LP.ae. LOT. 23 1 3.82 ACRES L 711i2 4 yy{{ I I 29.b'I'b �t i 01w `s LOT 3 I i MOM ACRES __--____��'�_ I \ _.I l I I I III ill a J rE CONSTRUCTION TESTING & ENGINEERING, INC. PLANNING -CIVIL ENGINEERING - LAND SURVEYING - GEOTECNNICAL 1441 NONYIEL ROAD. SUITE 115 ESCONDIDO CA. 9202E• PN:170051/0.4255 F. YOUNG Exp. 9-30-08 No. 4065 PARCEL MAP 33367 LOT 23 1 s-0068 1'=300' IIIIII IIIIIII III IIIII IIIII 1111111111111111111111111111 08?0 0 so of 1230R RIVERSIDE COUNTY SHEET 2 OF 2 EXHIBIT AB' LOT 23 DATA TABLE No.I DELTA BEARING RADIUS LENGTH 1I S00'07'12"E — 12324 21 1 L=323449" 183.00' 104.06' 3 p=3654'12" 267.00' 171.97' 41 1 L=8'17"50 33300 48.22 51 1 0=4106'44" 3200' 22.96' 61 1 p=12232"06 "" 6J 00' 134.73' 7 =434549" 32.00' 1 24.44' 8 =46 44'15 82.00' 66.89' 9 L =2929 38 47.00' 24.19' TON0473'09"W — 26.65' 71 N16 50'59 "W — 18.54' 11 N287257"W — 19.28 13 L =54 0755 37.00' 34.96' 14 N2709'48"E — 40.67' 15 L=225021 250.00' 99.65' 16 A=5476'03" 82.00' 77.90' 17 1 N2759'09 E — 16.70' 18 1 A=283836" 56.00' 28.00' 19 N1970'35 E — 27.25' 0 p=3532'06" 100.00' 62.02' 7 N400406"W — 64.22 2 N423954"W — F750 3 N3736'08"W — 702 44 REVISED TENTATIVE "" "" 16-0066 CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33367 PLANNING -CIVIL ENGINEERING -LAND SURVEYING - GEOTECHNICAL 14/1 NONTIEL ROAD. SUITE 115 ESCONDIDO CA, 12020, MIMI) 7/Sd155 LOT 23 11/15/06 JPR IIIIII IIIIIII III IIIII 111111111111111111111111111I IIII 08 20 St of 0� 30R EXHIBIT "A-2" SITE MAP [To be inserted] IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII ea e006 eof 1230R 75053 ffiI 0V2 EXHIBIT A-2 750537 12 a02/26/07 3 �� i rb{6l !�" �rt,� • c. � AEA a E Ij iQ THE H I IB 9B �iB 9eiiD BB�I igi Dii tBl DPI Hill RBl gl t� � tsi 9l Ol ll;l el 1l;i !1 li 1,l ,l !l;l ,! Bi Ii aaltl t i ni t t It Baa Ii i li ji 1 I, I yi ei "tat ON °i II `t SAW. .t s Is {I•D; eDl q• la • 1• • • • 4 la �g� g B• e. ea e. ea • • s 1• ay la /s pN F! :w w ! 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'i F aaaaa a as j! g 15555$$$5.`5555$51561Ge$�655fe6555 ^' I ����� BIIBBBBBBBBBBBBIBBBBBBBBBBBBBBBBBB € � tl� 30 �IIIIIIII�������IIIIII������IIIIIIIIII���IIIIIII������� e�szese-rasa EXHIBIT "B" DEPICTION OF PUBLIC IMPROVEMENTS [To be inserted] ������hill��������11111111 eeJe0064 o0ee23ea 882/015610-0084 EXHIBIT B 750537 12 a02/26/07 623 IIIIIIi1111llillllllllll pill lllllllil1111l111 B6 83e65 0021236fl EXHIBIT "C" FOUR STAR QUALITY REQUIREMENTS Four -Star Qualm under this agreement indicates an outstanding hotel providing the guest with a luxury experience in a distinctive setting, including expanded amenities and exceptional service. Guests can expect an exceptional experience, where no less than ninety five (95) percent of the following detailed characteristics are consistently met or exceeded. Except as provided in the following two paragraphs, the detailed characteristics list below applies in its entirety to all components of the Project, including, without limitation, all of the Units and all other facilities and amenities (including the spa, fitness facility, restaurants, etc.) to be developed on the Site. Certain of the detailed characteristics shall not apply to Condominium Hotel Units or Fractional Units located in "casita" buildings, and such characteristics are preceded by an asterisk (*). For purposes of this Agreement, the term "casita" building shall refer to a hotel building that is not the main hotel building on the Boutique Hotel Parcel or the Resort Hotel Parcel. Subject to the immediately following paragraph, Condominium Hotel Units and Fractional Units in casita buildings shall be required to comply with all of the detailed characteristics other than those characteristics preceded by an asterisk. Certain of the detailed characteristics shall not apply to Fractional Units, and such characteristics are preceded by a double asterisk (**). Fractional Units shall be required to comply with all of the detailed characteristics other than those characteristics preceded by a single or double asterisk. Services Detail • Staff is well-groomed with professional, neat and well -maintained attire. • All staff encountered are pleasant and professional in their demeanor. • Front desk staff are articulate, smile and make eye contact. • (**)The front desk is staffed twenty-four hours. • (**)Restaurant on -site serving three meals daily. • Valet parking is available. • Baggage assistance is automatic. • (*)Complimentary newspapers are delivered to room automatically. • (**)Complete room service is available. • (**)Workstation is available where guest can access Internet. EXHIBIT C 862/01561M084 750537 12 a02/26/07 _ Page I of 7 1111111111111111111111111111111111111111111111111111111 ea a00 ss o0f01230R • (**)Basic fitness equipment is provided, including treadmills and cycles. • Written confirmation is automatic or offered, either by mail, fax or e-mail. • Guests name is used effectively, but discreetly, as a signal of recognition. • The time from arriving at the reception area until registration is complete does not exceed five minutes (includes queuing). • Bed is plush and inviting with oversized or numerous pillows. • Bedcovers are elegant and stylish and with linens of exceptional quality and comfort. • All written information is provided on good quality paper or pads, custom -printed or logoed. • Bathroom presentation and placement of amenities and linens is thoughtful, careful, and elegant. • (*)Fresh ice is provided during evening service or at another time during the day. • (**)Turndown service is automatically provided. • (**)During turndown service, guest clothing is neatly handled and guest toiletries are neatly arranged and displayed on a cloth or shelf. • (**)Room service is delivered within 30 minutes. m Room service order is delivered within five minutes of quoted time. ti mN L 0 m o (*)Two hour pressing available N (7 (*)Same day laundry and dry cleaning is available seven days/week. m • v Wake-up call is personalized with guest's name and time of day. • v Wake-up call is delivered within two minutes of requested time. e� s e (**)Special service desk identified as concierge/guest service is situated apart from e reception/front desk. • If spa services are present, treatments are begun and ended on schedule, within five o e minutes of expected or booked time. e If spa services are present, during treatment, therapist appears to be genuinely expert, o e e moving seamlessly through the treatment as described and expected. Facilities Details e • Self parking area is free of debris, good condition; surfaces, curbs, paths. • All outdoor walkways and approaches are well -maintained and cleaned. EXHIBIT C 882/015610-0084 750537 12 a02/26/07 Page 2 of 7 • Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition. • Public spaces are free of obvious hazards. Elevator landings, cars and doors/tracks are clean and in good condition. • Guest room corridor floors, walls and ceilings are free of debris, marks, and damage. • All furniture, fixtures and equipment are clean, neat and well -maintained. Ashtrays throughout public areas are well -maintained and free of excessive debris. Temperature in all interior public areas are maintained in general comfort range. • Public washrooms very hygienic and neat, with well -stocked paper and soap. Public washroom fixtures, walls and floors are in very good condition. • Meeting rooms are well -signed so that it is easy to find and arrive at a specific room. • Meeting room doors are in good condition, free of nicks and damage. Meeting room interiors are in generally good condition, including walls, floors and ceiling. Lobby provides a comfortable seating area. • Lobby floors, walls and ceiling are free of debris, marks and damage. Lobby areas feature elegant live plants and/or fresh floral displays. N mN • Notices are professional, matching decor, not "homemade". ^ • (*)Vending and/or ice machines are located on each guest floor. m mN� *)Vending and/or ice areas and equipment are clean, well -lit, and well -maintained. W m Service doors are clean, free of marks and damage, and closed. (**)A variety of different sized and appointed rooms available in hotel. .e • (**)High quality, varied, and major brand sundry selections are available in an on -site store. s • (**)Suite (separate bedroom and living areas) accommodations are available. (**)A dedicated and secure luggage storage area is available. Public phones are convenient, and equipped with seats, privacy panels and pad/pens. Public washrooms are furnished with upgraded materials and appointments/luxurious design. EXHIBIT C 882/015610-0084 750537 12 a02/26/07 Page 3 of 7 • Televisions feature premium cable TV (two movie channels, two all -news, two financial). • Pay -Movie selections are available through television. • (*)Guest room telephones have two lines. • Guest rooms equipped with data ports (guest can connect laptop to the Internet). • Direct dial phones with direct long distance dialing are available in each guest room. • If public phonebook present, it is displayed in attractive cover. Guest Room Detail • Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good condition. • Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc. • Walls and ceilings are free of marks, stains and damage. • Drapes are free of stains, damage; pull easily and hang properly. • Furniture is free of dust, marks and damage. M0M U • All printed material including collateral, phonebooks and stationery are neat, crisp and mo current. Tom m m • Drawers and shelves are clean, free of dust and debris. N � 0 . All light bulbs operate; all light fixtures and lamps are in good condition, clean. • Mirrors and windows are free of smudges and damage throughout. W• If safe is provided, it is clean, functional and convenient. e s • Room equipped with accurate, functional clock and radio/stereo. s o s . Color television works and is equipped with remote control, and is minimum 19". e s • All bedding and linens are free of debris, hairs, damage and stains. • Room heating and air conditioning is easily controlled by guest and is quiet. Air is fresh and clean, no stuffiness or odors. a Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration. Bathroom tile and grouting is clean, not discolored, cracked or mildewed. Faucets and drains operate smoothly and easily. EXHIBIT C 882/015610-0084 75053712 a02/26/07 Page 4 of 7 • Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath towel. • If robes are provided, they are free of spots, stains and loose threads. • Guest room door and frame free of marks, scratches and scuffs. • (*)Comfortable seating for two people (other than bed) (exemption only applies to Units in Lock -Off suites specifically designed as smaller sleeping quarters; otherwise this item is required in all accommodations designed as single hotel rooms and hotel room Lock - Off Units). • Guest service directory, pad and pen/pencil present and conveniently placed. • Enclosed closets (means closets must have doors). • There are three spacious drawers or enclosed shelves (inside closet). • A Luggage rack or bench provided; and adequate space to leave suitcase. • Extra clean and hygienic blanket and pillow provided in room. • Lighting throughout the room is adequate. • The room can be fully darkened. Nm 0 (J (D W ^ o (**)Full-length mirror present in room. m mj 00 m m • A hairdryer present in room, clean and functional. L 0 W 0 • (**)Each guest room has two phones (one could be in the bathroom). e_ • Comfortable desk and chair are available for working, complete with telephone, data port, and light. • Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are present in room. • (**)Minibar is present (defined as selection of several beverages and snacks). It is non auto -charge, and premium products are attractively displayed. • (**)Minibar is hygienic, free of spills and damage, all products are sealed, price list present. • If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available. • Pillows are plush and full, no foam. • Framed artwork or interesting architectural features exist in room. • Excellent lighting is provided in bathroom for makeup and shaving. EXHIBIT C 882/0156104084 750537 12 a02/26/07 Page 5 of 7 • Hygienic soap, shampoo and four other bath amenities are provided. Amenities are presented attractively, thoughtfully (not simply lined up on counter). • Towels are of absorbent quality, with soft nap and no discoloration. • Towels are free of spots, stains, tears and obvious frays. • Guest room is of generous size, and provides ample seating for more than two persons. • (**)Selection of at least 10 hangers including a variety of bars, clips and padded. • (**)In -room safe is present. • Bed is triple sheeted or features washable duvets. • (*)Live plants are present in guest rooms. • Shaving/makeup, lighted magnifying minor is present. Specialized Facility Detail • Pool/beach furniture is clean, hygienic and well -maintained. • Pool deck or beach/sand is clean and free of excessive debris. mM • Pool deck and tiling are in good condition, free of excessive damage or wear. N - W fG W m S • Pool water is clean, free of debris and free of notable odors. m Nn N m • Pool fittings and equipment (ladders, dive boards) are secure and in good condition. W W ® • If tennis exists on site under same management, court surfaces are in good condition, free of damage and well -marked. • Tennis courts and surrounding areas are clean and free of debris. • Fixtures, nets, lights, fences are well -maintained and good condition. If golf exists on site under same management, pro shop/clubhouse interior are clean and well -maintained; displays and counters neat and tidy. • Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance. • Golf carts are clean, well -organized and maintained. iee Rental equipment is clean and good condition, including bags. • (**)Guest can pick up e-mail and access the Internet from a Business Center workstation. • (**)Business Center working areas are clean, tidy and professional. (**)Comfortable office -style chairs at the Business Center guest workstations. EXHIBIT C 882/015610-0084 750537 12 a02/26/07 Page 6 of 7 • All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained. • (**)Spa reception area is well-defined, neat and professional. • Fitness equipment is clean, in very good condition, conveniently laid out. • Fitness/workout area is well -ventilated, with comfortable temperature. • Fitness equipment is available with personal headphones/televisions. • Sound system or television provided in fitness/workout areas. • Towels are provided in locker and fitness areas. • Grooming area equipped with hairdryers; soap and shampoo conveniently placed. • All amenities are neatly and professionally presented; very hygienic. • Locker room.showers, sauna and hot tub extremely clean, hygienic appearance. • If Business Center is present, a semi -private working area with workstation and telephone is available for guests. MFM If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes, WO, and they are clean and in good condition. eg INN if spa or fitness center exists on site, complimentary amenities to include body lotion, shower caps, talc/deodorant and combs. d • If spa exists on site, at least two types of massage and either body treatments or facials are also offered. • If tennis is available on site, water is available courtside. If pool or beach service is present, ample towels are available poolside or at the beach. • Current newspapers and national -title magazines are provided in fitness and locker areas. 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C( 2007-9502623 EXHIBIT "E" FORM OF CITY DECLARATION OF CC&Rs [See following document] IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII B820089 of 230R 862/015610-0084 750537 12 a02/26/07 EXHIBIT E RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of La Quinta 78-495 Calle Tampico La Quinta, CA 92253 Attn: City Manager (Space Above Tbis Line for Recorder's Office Use Only) (Exempt from Recording Fee per Gov Code § 27383) DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS This DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS ("Declaration") is entered into this day of _, by and between the CITY OF LA QU[NTA, a California municipal corporation and charter city organized and existing under the Constitution of the State of California ("City"), and LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. Developer is the fee owner of that certain real property located in the City of La Quinta, County of Riverside, State of California, and more particularly described on Exhibit A attached hereto (the "Property"). B. Developer has obtained approval from City to develop and operate on the Property N0N n [select applicable Phase of Development: (a) [Use for Boutique Hotel Parcel and Resort m mm Hotel Parcel] a "Four Star Quality" (as that term is defined in Section 1.2 below) hotel with m m associated amenities; or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] a "Four ' Star Quality" (as that term is defined in Section 1.2 below) "casita" development] (the 0 "Project"). [To be added to Declarations where (b) above applies: For purposes of this Declaration, the term "casita development" shall mean and refer to one or more hotel buildings e that contain "Units" (as that term is defined in Section 1.1 below) but that are not a main hotel building (e.g., a building with guest check -in areas and a lobby).] e C. As more particularly described in Section 1.1 hereof, a portion of the Project has ®_ been subdivided into condominium units. D. Pursuant to that certain Development Agreement entered into by and between ® Developer and City on or about which was recorded on as Instrument No. _ in the Official Records of the County of Riverside (the v "Development Agreement"), as a condition to the approval of the Project and as one of the sconditions precedent to the La Quinta Redevelopment Agency's obligation to convey the Property to Developer, Developer is required to have executed this Declaration and delivered it to the escrow agent handling said conveyance, for recordation against the Property concurrently with the Agency's conveyance thereof. 882/015610-0084 755505 08 a02/27/07 -1- E. City has fee interests in the municipal golf course(s) located within the "SilverRock Resort Area" (as that term is defined in Section 1.6 below), and in various streets, sidewalks, and other property within the City (the "Benefited Public Property"), and is responsible for planning of land uses within the City in such a manner as to provide for the health, safety, and welfare of the residents of the City. The Benefited Public Property is legally described in Exhibit "C", attached hereto and incorporated herein by this reference. F. Developer and City desire to enter into this Declaration to bind the Property, and all of the Units thereon. The restrictions and covenants herein shall be deemed to be included with and imposed as restrictions on the Property and on each and every conveyance of the (i) Property, (ii) the "Condominium Hotel Units," and (iii) the "Fractional Units" (as those terms are defined in Section 1.1 below) without express reference thereto in the deed evidencing such conveyances. DECLARATION NOW, THEREFORE, in consideration of the foregoing Recitals and the covenants and promises hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, City and Developer agree, on behalf of themselves, and binding the "Operator" (as defined in Section 1.2 below) and the successors and assigns of Developer, including, but not limited to, the owners of the Units (each, an "Owner," and collectively, the "Owners") and the "Project Owner" (as defined in Section 1.2 below) including for the benefit of City, as follows: Restrictive Covenant. 1.1 Project Accommodations. The Project includes [select applicable: (a) [Use for Boutique Hotel Parcel and Resort Hotel Parcel] a main hotel building containing M mM units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"), with N m- (� of such Units owned by the Developer and managed by the Operator (each, a "Hotel Unit," mm� and collectively, the "Hotel Units"), _ (� of such Units available for sale to third -party g m owners (each, a "Condominium Hotel Unit," and collectively, the "Condominium Hotel 0 Units"), U of such Units designated as "Fractional Units" (as that term is defined below), 0 and one or more "casita" (as that term is defined below) buildings containing Condominium Hotel Units and _ ( ) Fractional Units); or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] a casita development containing _ units designed for overnight occupancy (each, a "Unit," and collectively, the "Units"), with of such Units available for sale to third -party owners (each, a "Condominium Hotel Unit," and collectively, the C "Condominium Hotel Units"), and _ ( ) of such Units designated as "Fractional Units" (as that term is defined below). [To be added to Declarations where (a) above applies: For purposes of this Declaration, a "casita" building shall mean and refer to a hotel building that is not a main hotel building.] For purposes of this Declaration, a "Fractional Unit" is either (i) a i>= Unit that is a condominium, the ownership of which is divided into multiple fractional interests, including, without limitation, timeshare interests, each of which can be owned by separate owners or by the same owner, and each of which gives such owner the right to use such Unit for a different period of time; or (ii) a Unit that is owned in fee by the Developer, Developer's successor in interest, Destination Hotels & Resorts, Inc., a California limited liability company 882/015610-0084 755505 08 a02/27/07 -2- m m Nma N0W �0 0 ON m M1NO WO 0 ("DHR"), or a successor in interest to Developer or DHR that is authorized or permitted pursuant to the Development Agreement, and in which memberships are sold to third parties giving such parties the right to use and occupy the Unit for certain periods of time. All Units in the Project shall be developed as Condominium Hotel Units, Fractional Units, and/or Hotel Units, and shall be completely furnished with furniture, fixtures and equipment to the standards established by the Operator of the Project. A furniture, fixtures and equipment reserve account shall be established and maintained, in a reasonable amount, in order to maintain and, when necessary, replace the furniture, fixtures and equipment within the Units to maintain the facility at a Four Star Quality. 1.2 Management of Project and Management of Condominium Hotel Units. During the term of this Declaration, each Unit shall be managed by an entity authorized by the Development Agreement (with such authorization required only during the period requiring such authorization set forth in the Development Agreement) and designated by the owner of [select applicable: (a) [Use for Boutique Hotel Parcel and Resort Hotel Parcel] the Project; or (b) [Use for Golf Casitas Parcel and Lake Casitas Parcel] the resort hotel development constructed on Lot 3 of Parcel Map No. 33367, recorded on in Book , Pages to ,in the Official Records of the County of Riverside] to operate the Project (the "Operator"). In addition, when a Condominium Hotel Unit is not being used by the Owner thereof, or guests of the Owner, such Condominium Hotel Unit shall be made available for rental as a hotel room in the Project. If the Operator is not the Owner's rental agent, or if the Owner is acting without a rental agent, then the Operator shall have the right, working through the Owner or its designated rental agent, to book such Owner's Condominium Hotel Unit (to the extent it is then unbooked) to fulfill demand made of the Operator within the two (2) weeks prior to the date when such Condominium Hotel Unit is needed for booking by the Operator. In all circumstances, (i) the Owner or the Owner's rental agent, if not the Operator, shall be required to make a reservation through the Operator a minimum of two (2) weeks prior to any use of the Condominium Hotel Unit by the Owner or such Owner's guest, which reservation shall cover the entire length of stay of the Owner or such Owner's guest; and (ii) the Operator shall have full access to each Condominium Hotel Unit's reservation and booking schedule (whether maintained by the Owner or the Owner's rental agent), so that the Operator can fulfill its booking (within the two (2) weeks prior to a given date as provided above) and management obligations hereunder. As used in this Section 1.2, the terms "managed", "management" and words of similar import shall mean that the Operator shall be engaged by each Owner of a Unit pursuant to the Operator's then -standard form of agreement to manage the upkeep and care of such Unit and its use by parties other than the Owner, including by providing such services commonly provided at a "Four Star Quality" (as defined below) hotel, including without limitation, such services as front desk check -in and check-out services (including electronic keys), routine housekeeping, laundry and dry cleaning, room service, catering and other food and beverage services, spa services, concierge services, parking and bellman services. The use of such services shall be conditioned upon payment of such charges or fees as may be imposed generally on hotel guests. The Operator shall have the exclusive right to restrict and control access to any and all shared facilities within the Project, provided the same does not restrict an Owner's right of access to her, his or its Unit, except that Unit access, including by the Owner, shall be subject to mandatory registration at the front desk to obtain a key to the Unit, which key shall be an 892/015610-0084 755505 08 a02/27/07 -3- electronic key. The Operator's management obligations shall also include upkeep and repair of the interior of each Unit, and monitoring and managing repair and replacement of furniture, fixtures and equipment. For purposes of this Declaration, the term "Four Star Quality" means that the Project offers and provides the services, facilities and amenities listed in Exhibit "B", which is attached hereto and incorporated herein by this reference. Developer, on behalf of itself and the Operator, and their respective successors and assigns, including, but not limited to, the "Project Owner" (as defined below), covenants and agrees that the Project, upon its completion, shall be operated in a Four Star Quality condition until the twentieth (20th) anniversary of the date the City issues the last certificate of occupancy for the Project (the: "Operating Covenant Release Date"). No more than once per year after completion of the Project, the City may select an independent consultant (the "Performance Consultant") to perform a quality audit of the Project for purposes of determining that the Project is operating; at a Four Star Quality (the "Performance Audit"). The then -owner of the Project (the "Project Owner") shall reimburse the City for the reasonable costs of the Performance Audit. City shall promptly provide the Project Owner with a copy of the Performance Audit. In the event that the Performance Audit concludes that the Project is not operating at a Four Star Quality, the Project Owner shall have a period of sixty (60) days from the date City provides the Project Owner with the Performance Audit to correct a sufficient number of the deficiencies noted therein so that the Project meets at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics. If, at the expiration of said sixty (60) day period, a sufficient number of the deficiencies have not been corrected so that the Project still does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, the Project Owner shall pay to the City liquidated damages for each day after said sixtieth (60a') day that passes until sufficient items noted in the Performance Audit have been corrected, as determined by the Performance Consultant, in the following amounts: (i) if the Project is operating such that eighty percent (80%) or more but less than ninety-five mM percent (95%) of the applicable detailed Four Star Quality characteristics are met, the Project Owner shall pay to the City the sum of Five Hundred Dollars ($500) per day (the "Less Than m m ° 95% Performance! Default Amount") until the day as of which the Project meets at least mninety-five percent (95%) of the applicable detailed Four Star Quality characteristics; or (ii) if ' m the Project is operating such that less than eighty percent (80%) of the applicable detailed Four Star Quality characteristics are met, the Project Owner shall pay to the City the sum of One Thousand Dollars ($1,000) per day (the "Less Than 80% Performance Default Amount") until the day as of which the Project meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics; provided, however, that if on the day the Project meets at least eighty percent (80%) of the applicable detailed Four Star Quality characteristics the Project does not meet at least ninety-five percent (95%) of the applicable detailed Four Star Quality characteristics, then the Project Owner shall be required to pay the City the Less Than 95% Performance Default Amount, pursuant to clause (i) above, for each day until the day as of which the Project meets at least ninety-five percent (95%) of the applicable detailed Four Star ® Quality characteristics. All of the costs and fees charged by the Performance Consultant for any i� follow-up inspections shall be paid by the Project Owner. LIQUIDATED DAMAGES. IF THE PERFORMANCE AUDIT CONCLUDES THAT THE PROJECT IS NOT OPERATING AT A FOUR STAR QUALITY, THEN AND IN SUCH EVENT, NOTWITHSTANDING ANYTHING IN 882/015610-0084 755505.08 a02/27/07 4- THIS DECLARATION TO THE CONTRARY, CITY AND DEVELOPER AGREE THAT CITY WILL INCUR DAMAGES BY REASON OF SUCH DEFAULT, WHICH DAMAGES SHALL BE IMPRACTICAL AND EXTREMELY DIFFICULT, IF NOT IMPOSSIBLE, TO ASCERTAIN. CITY AND DEVELOPER, IN A REASONABLE EFFORT TO ASCERTAIN WHAT CITY'S DAMAGES WOULD BE IN THE EVENT OF SUCH DEFAULT, HAVE AGREED BY PLACING THEIR INITIALS BELOW, THAT CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS DECLARATION, INCLUDING THE RELATIONSHIP OF THE SUM TO THE RANGE OF HARM TO CITY THAT REASONABLY COULD BE ANTICIPATED, INCLUDING WITHOUT LIMITATION THE POTENTIAL LOSS OF TAX REVENUE TO THE CITY, AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT, THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) SHALL BE DEEMED TO CONSTITUTE A REASONABLE ESTIMATE OF CITY'S DAMAGES UNDER THE PROVISIONS OF SECTION 1671 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. NOTWITHSTANDING ANYTHING IN THIS DECLARATION TO THE CONTRARY, IN THE EVENT OF AND FOR SUCH DEFAULT, THE PROJECT OWNER SHALL BE REQUIRED TO PAY TO CITY THE LESS THAN 80% PERFORMANCE DEFAULT AMOUNT OR THE LESS THAN 95% PERFORMANCE DEFAULT AMOUNT (AS APPLICABLE) AS LIQUIDATED DAMAGES AND AS CITY'S SOLE DAMAGE REMEDY FOR A DEFAULT UNDER THIS SECTION 1.2; PROVIDED, HOWEVER, THAT CITY RETAINS AND RESERVES THE RIGHT TO EXERCISE ANY OTHER EQUITABLE REMEDY AVAILABLE TO CITY HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO BRING AN ACTION FOR SPECIFIC m" PERFORMANCE (BUT NOT THE RIGHT TO SEEK ANY DAMAGES). CITY AND m o DEVELOPER SPECIFICALLY ACKNOWLEDGE THIS LIQUIDATED DAMAGES 0< PROVISION BY THEIR SIGNATURES BELOW: 0 M N 0 0 0 CITY DEVELOPER 1.3 Limitations on Use of Condominium Hotel Units. The Condominium Hotel Units are subject to the following restriction on Owner occupancy: (i) the Owner of a Condominium Hotel Unit (no matter how many parties constitute such Owner) may occupy such Owner's Condominium Hotel Unit (a) for no more than sixty (60) days per calendar year, of which no more than thirty (30) days can be during the period of November I through April 30 of each such calendar year, and (b) for no more than twenty-nine (29) consecutive days; (ii) a minimum seven (7) day period shall intervene between each twenty-nine (29) consecutive day period of occupancy by the Owner; and (iii) when not being used by its Owner, each such ® Condominium Hotel Unit shall be available as a Project accommodation. Each Condominium Hotel Unit shall be managed by the Operator as set forth in Section 1.2 hereof. For purposes of this Section 1.3 and Section 105 below only, the term "Owner" shall mean and collectively refer to all of the persons or entities who/that own the Condominium Hotel Unit, and any of their nonpaying guests for whom they reserve the Condominium Hotel Unit. For purposes of this Declaration, the tern "nonpaying guest" shall include guests whose payment for occupancy is at 982/015610-0084 755505 08 a02/27/07 -5- a material discount not generally available to members of the public. Any nonpaying guest of the Owner shall pay transient occupancy tax (as that term is used in La Quinta Municipal Code Chapter 3.24) (hereinafter, "TOT") on the rental amount paid (if any) by such guest to occupy the Condominium :Hotel Unit. 1.4 Use by Hotel Guests. Any person or entity who pays to occupy a Condominium Hotel Unit (a "Hotel Guest") shall not occupy or have the right to occupy such Condominium Hotel Unit for more than twenty-nine (29) consecutive days. On or before the twenty-ninth (291h) day, the Hotel Guest shall check out of and vacate such Condominium Hotel Unit. All Hotel Guests shall pay, and the Operator shall collect and remit to the City, TOT on the rental amount paid by such Hotel Guest to occupy the Condominium Hotel Unit. 1.5 Excess Use Payments. The Operator shall be responsible to monitor the usage of each Condominium Hotel Unit by the Owner thereof in order to fulfill its collection responsibilities hereunder. If any Owner or Hotel Guest occupies a Condominium Hotel Unit beyond the time periods permitted in Sections 1.3 and 1.4 (as applicable), then such Owner or Hotel Guest shall pay to the Operator at check-out, and the Operator shall collect from such Owner or Hotel Guest at check-out, for remittance to the City, the following daily amount for each such day during the "First Operative Year" and "Second Operative Year" (as those terms are defined in Section 2.2 below) that the Owner's or Hotel Guest's occupancy exceeds the permitted number of days: (i) Twenty Dollars ($20) per day for studio Condominium Hotel Units and one -bedroom Condominium Hotel Units; and (ii) Thirty -Five Dollars ($35) per day for two -bedroom Condominium Hotel Units and for presidential villas (the "Excess Use Payment"). Each Excess Use Payment after the First Operative Year and Second Operative Year shall be increased annually, on each February 1 during the term of this Declaration, by the increase (if any) in the "ADR Index" (as that term is defined below) during the prior Operative Year; provided, however, that if the first sale or transfer by Developer of a Condominium Hotel Unit in m o the Project (the "First CHU Sale") occurs on or after July 1, then for the subsequent "Operative N; Year" (as that term is defined in Section 2.2 below) only, each Excess Use Payment shall not N m increase by the ADR Index [For all Declarations after the first Declaration that includes a a Condominium Hotel Unit, the amount of the Excess Use Payment shall be revised to reflect v the then -current .Excess Use Payment, such that all Condominium Hotel Units in the Project and in the adjacent hotel/resort developments are subject to the same Excess Use ® Payment, and the Excess Use Payment amounts are subject to adjustments at the same v time, regardless of when such Condominium Hotel Units are developed or sold]. In all instances in which the February 1 adjustment is referred to in this Declaration, it shall be deemed effective as of the prior January I". For purposes of this Declaration, the "ADR Index" shall mean the average increase in the average daily room rate for the Miramonte Resort & Spa, La Quinta Resort & Club, the Hyatt Grand Champions, Renaissance Esmeralda, and the Project, as determined and published in the STR Report, published by Smith Travel & Research or, if the SIR Report is no longer published, in an equivalent statistical report that analyzes the percentage ® increase in average; daily room rates at the foregoing hotels and resorts. Notwithstanding anything in this Declaration to the contrary, if the ADR Index decreases during the prior Operative Year, such decrease shall not result in a decrease in any of the payments required hereunder. Instead, the ADR shall be deemed not to have changed since the prior year. 182/015610-0084 755505 08 02/27/07 -6- 1.6 Recordation of Covenants, Conditions and Restrictions. Prior to, and as a condition of, the City's issuance of any temporary or permanent certificate of occupancy for the Project, the Developer shall submit to the City, obtain approval thereof, and record, covenants, conditions and restrictions against the Property which (i) shall provide for establishment of homeowner's association for the Project (the "Association"); (ii) shall provide for the Association's collection of and payment to the City of the amounts described in Section 2 below; (iii) is necessary to create a condominium regime for the condominiums described on the Condominium Plan to be recorded in accordance with all applicable laws; (iv) clearly sets forth the maintenance obligations of the owners of the Condominium Hotel Units; and (v) includes a disclosure regarding the public ownership and control of the existing golf course and any future golf course that may be developed in the "SilverRock Resort Area" (as that term is defined below) and a statement that Developer does not and cannot guarantee that the City will not make changes to such golf course(s) or change the use of the underlying real property (the "CC&Rs"). The CC&Rs shall provide that the City is a third party beneficiary thereof with the right, but not the obligation, to enforce the terms thereof which are set forth in this Section 1.6, and shall require the written approval of the City prior to any amendments thereto to the provisions thereof which are set forth in this Section 1.6. For purposes of this Declaration, the term "SilverRock Resort Area" shall mean and refer to the real property included in and covered by the SilverRock Resort Specific Plan, also known as Specific Plan 06-08, as amended by Resolution 2006-083, which was duly adopted by the La Quinta City Council on July 18, 2006. 1.7 Reporting Requirements. During the term of this Declaration, within thirty (30) days after the end of each calendar quarter (i.e., by each April 30, July 30, October 30, Nh and January 30), the Association and the Operator shall be jointly, severally, and collectively responsible to provide to City a report that contains all of the following information on each 20 Condominium Hotel Unit for such calendar quarter: (a) the number of said Unit; (b) the name, address, and phone number of the Owner of such Unit; (c) the dates the Unit was occupied by ' m persons other than the Owner of the Unit; (d) the dates the Unit was occupied by the Owner; (e) the name and address of any Hotel Guests (other than the Owner) whose occupancy exceeded the timeftames set forth in Section 1.4 above; (f) the identity of the rental agent for said Unit (if not the Operator); and (g) the TOT that has been collected by the Operator and remitted to the City efor use of said Unit during such calendar quarter (each, a "Quarterly Report"). 0 2. Resort Payments. s s v 2.1 Annual Resort Payment Due Date. During the term of this Declaration, sand pursuant to the provisions of Section 2.2 and Section 2.3 below, the Association shall collect s annual resort payments on each February 2e following the first to occur of the following (with each such February 28 referred to hereinafter as an "Annual Resort Payment Due Date") (a) the first Condominium Hotel Unit in the Project (i) receives a certificate of occupancy, and (ii) has been sold to a third party, as evidenced by the close of escrow for such Condominium Hotel MUnit; or (b)(i) the first condominium unit in which a Fractional Unit is located receives a certificate of occupancy [for Fractional Units which are condominiums] or the first Fractional Unit receives a certificate of Occupancy [for Fractional Units which are not condominiums], and (ii) such Fractional Unit has been sold to a third party, as evidenced by the close of escrow for the Fractional Unit, or has otherwise been transferred to DHR or another management entity for use in a timeshare or residence club program. 882/015610-0084 755505 08 a02/27/07 -7- m NmN wo, Now � 0 m 0, 'No 0 M tim 2.1 Condominium Hotel Units. During the term of this Declaration, for each Condominium Hotel Unit that has been sold to a third party, as evidenced by the close of escrow for such Condominium Hotel Unit having occurred on or before each Annual Resort Payment Due Date, the Association shall (A) provide to the City a report that contains all of the information contained in a Quarterly Report (as described in Section 1.7 above) for the immediately preceding calendar year (the "Annual Report'); and (B) collect from the Owner of each such Condominium Hotel Unit, and remit to the City an annual resort payment (each, a "CHU Annual Resort Payment") covering the "Operative Year" (as that term is defined below) or partial Operative Year occurring immediately preceding the Annual Resort Payment Due Date. For purposes of this Declaration, the tern "Operative Year" shall mean each January 1 through December 31 period during the term of this Declaration. CHU Annual Resort Payments shall be prorated for any partial ownership calendar year based on the time period during which each such Unit was owned by the Owner, with any amounts allocated in a particular Operative Year to a prior Owner collected by the Association from such prior Owner and remitted to the City pursuant to Section 2.5 below. If the date of the First CHU Sale (the "First CHU Sale Date") occurs before July 1 of a given calendar year, then the then -current calendar year shall be deemed to be the first Operative Year (the "First Operative Year"). If the First CHU Sale Date is after July 1 of a given calendar year, then the "First Operative Year" shall be deemed to be the next -succeeding callendar year, and for the time period between the First CHU Sale Date and the commencement of the First Operative Year, the CHU Annual Resort Payment will be prorated on a per month basis at the rate applicable to the First Operative Year. The CHU Annual Resort Payment for studio Condominium Hotel Units and for one -bedroom Condominium Hotel Units shall be One Thousand Two Hundred Dollars ($1,200) per year for the First Operative Year and for the second Operative Year (the "Second Operative Year"). For the third Operative Year (the "Third Operative Year"), the CHU Annual Resort Payment amount for studio Condominium Hotel Units and for one -bedroom Condominium Hotel Units shall be One Thousand Eight Hundred Dollars ($1,800), which amount shall be increased, on each February 1 following the Third Operative Year, by the increase, if any, of the ADR Index during the prior Operative Year [which increase shall be deemed effective as of the prior January Is']. The CHU Annual Resort Payment for two -bedroom Condominium Hotel Units and for the presidential villas shall be One Thousand Eight Hundred Dollars ($1,800) for the First Operative Year and the Second Operative Year. For the Third Operative Year, the CHU Annual Resort Payment amount for such Units shall be Two Thousand Four Hundred Dollars ($2,400), which amount shall be increased, on each February 1 after the Third Operative Year, by the increase, if any, of the ADR Index during the prior Operative Year [which increase shall be deemed effective as of the prior January 1 st]. Notwithstanding anything herein to the contrary, to the extent the Annual Report indicates that the City has actually received TOT revenues collected by the Operator or by the Owner or the Owner's rental agent, generated from the occupancy of a Condominium Hotel Unit during such Operative Year, the TOT revenues collected and remitted to the City for said Unit shall be credited against the CHU Annual Resort Payment owed by such Unit, and the amount owed shall be reduced by the same amount. For example, if in the First Operative Year the amount of One Thousand One Hundred Fifty Dollars ($1,050) has been paid to the City as TOT based on transient occupancy of a studio Condominium Hotel Unit, the Association shall collect from the Owner of said Unit and remit to the City only the sum of One Hundred Fifty Dollars ($150). 882/015610-0084 755505 08 a02/27/07 —8— In the event a CHU Annual Resort Payment is remitted to the City for a Condominium Hotel Unit for which the City has received TOT from a source other than the Operator and for which the Operator did not account in transmitting to City such CHU Annual Resort Payment, the City shall provide a refund to the Owner of said Unit in the amount of the TOT collected for such Unit up to but not in excess of the CHU Annual Resort Payment paid by or on behalf of such Owner on account of such Owner's Condominium Hotel Unit. Notwithstanding anything herein to the contrary, if a Condominium Hotel Unit has not yet been sold to a third party, and Developer or the Operator permits occupancy in such Unit, Developer or the Operator shall pay to the City TOT revenues on such usage. In the event such usage is permitted free of charge or at a reduced rate, the TOT to be paid to the City shall be determined based on the market rate which would be paid by an unrelated third party walk-in guest for an equivalent room during the same time period. 2.2 Fractional Units. During the term of this Declaration, for each Fractional Unit (i) that has received a certificate of occupancy [for Fractional Units which are not condominiums] or for which the condominium unit located therein has received a certificate of occupancy [for Fractional Units which are condominiums], and (ii) that has been sold to a third party, as evidenced by the close of escrow for the Fractional Unit, or has otherwise been transferred to DHR or another management entity for use in a timeshare or residence club program, on or before the Annual Resort Payment Due Date, the Association shall collect from the Owner(s) of each such Fractional Unit and remit to the City an annual resort Payment (each, a "Fractional Unit Annual Resort Payment") covering the prior Operative Year. Fractional Unit Annual Resort Payments shall be prorated for any partial ownership calendar year based on the time period during which each such Fractional Unit was owned by an Owner with any amounts allocated in a particular Operative Year to a prior Owner collected by the Association from such prior Owner and remitted to the City pursuant to Section 2.5 below. The Fractional �= Unit Annual Resort Payment for Fractional Units containing up to six hundred square feet (600 sf) shall be Four Thousand Three Hundred Eighty Dollars ($4,380); the Fractional Unit Annual Resort Payment for Fractional Units containing between six hundred one square feet (601 sf) and mnine hundred fifty square feet (950 sf), shall be Five Thousand Four Hundred Seventy -Five Dollars ($5,475); the Fractional Unit Annual Resort Payment for Fractional Units containing between nine hundred fifty-one square feet (951 sf) and one thousand six hundred square feet (1,600 sf), shall be Six Thousand Five Hundred Seventy Dollars ($6,570); the Fractional Unit Annual Resort Payment for Fractional Units containing between one thousand six hundred one e square feet (1,601 sf) and two thousand five hundred square feet (2,500 sf), shall be Seven v Thousand Three Hundred Dollars ($7,300); and the Fractional Unit Annual Resort Payment for Fractional Units containing more than two thousand five hundred square feet (2,500 sf), shall be Eight Thousand Thirty Dollars ($8,030). The amount of each Fractional Unit Annual Resort v Payment shall increase annually, on each February 1 commencing with the earlier of (a) the February 1 of the calendar year immediately following the calendar year in which the first sale of a Fractional Unit (the "First Fractional Unit Sale Date") occurs, or (b) February 1, 2012, by the increase (if any) in the ADR Index during the prior Operative Year; provided, however, that if the First Fractional Unit Sale Date is on or after July 1, then for the subsequent year only, the v Fractional Unit Annual Resort Payments shall not increase by the increase (if any) in the ADR Index. Each Fractional Unit Annual Resort Payment shall be divided equally among each of the 882/015610 0084 755505 08 a02/27/07 -9- Owners of a particular Fractional Unit, and each such Owner shall be responsible for the portion of the Fractional Unit Annual Resort Payment allocated to such Owner's fractional interest. [NOTE Regarding Section 2: For all Declarations after the first Declaration, (i) the CHU Annual Resort Payment amounts shall be revised to reflect the then -current CHU Annual Resort Payment, such that all Condominium Hotel Units in the Project and in the adjacent hotel/resort developments are subject to the same schedule of CHU Annual Resort Payment amounts, and the CHU Annual Resort Payment amounts are subject to adjustment at the same time, regardless of when such Condominium Hotel Units are developed or sold; and (ii) the Fractional Unit Annual Resort Payment amounts shall be revised to reflect the then -current Fractional Unit Annual Resort Payment amounts, such that all Fractional Units in the Project and in the adjacent hotel/resort developments are subject to the same schedule of Fractional Unit Annual Resort Payment amounts, and the Fractional Unit Annual Resort Payment amounts are subject to adjustment at the same time, regardless of when such Fractional Units are developed or sold.] 2.3 Late Payments. If an Owner fails to pay to the Association for remittance to the City any CHU Annual Resort Payment or Fractional Unit Annual Resort Payment required to be collected and remitted to the City hereunder within the time required, or an Owner fails to pay to the Operator for remittance to the City any Excess Use Payment required to be collected and remitted to the City hereunder within the time required, the Owner shall pay to the Association or Operator (as applicable) and the Association or Operator (as applicable) shall remit to the City a penalty of ten percent (10%) of the applicable payment or late portion of the applicable payment, in addition to the applicable payment or late portion of the applicable payment, plus interest at the rate of one-half of one percent (.05%) per month, or fraction thereof, from the date on which the applicable payment or late portion of the applicable payment required mM to be collected and remitted to the City becomes delinquent until the date of remittance to the City. If the Owner fails to a an penalty imposed under this Section 2.4 within ten 10 days Y pay Y P Y� P () Y mm after receipt of notice thereof, the Owner shall pay interest thereon at the rate of one-half of one percent (.05%) per month, or fraction thereof from the date on which the penalty becomes due m and payable to the City until the date of remittance to the City. In the event any CHU Annual Resort Payment, Fractional Unit Annual Resort Payment, or Excess Use Payment required to be paid and remitted to the City hereunder has been paid by the Owner to the Association or Operator (as applicable) for remittance to the City within the time required and the Association or Operator fails to remit to the City the same, the Association or Operator (as applicable) shall be responsible for any and all late payments set forth in this Section 2.4. ® 2.4 Sale of a Unit. Prior to the sale of any Unit by the Owner thereof, the Association shall collect from said Owner and remit to the City the Fractional Unit Annual Resort Payment or the Condominium Hotel Unit Annual Resort Payment (as applicable) for said Unit that will be due and payable by the Owner on the Annual Resort Payment Due Date, based on the period of such Owner's ownership. 3. Tenn. This Declaration shall become effective on the date on which it is recorded with the Riverside County Recorder's Office and shall continue in full force until the earlier to occur of (i) the date on which the City permanently revokes the certificate of occupancy for one or more Units or for the Project; provided, however, that in such event this Declaration shall cease to 882/015610-0084 755505.08 a0227/07 -10- be effective only as to the Unit(s) or portions of the Project for which the certificate of occupancy has been revoked, and all other Units and portions of the Project shall continue to remain subject to this Declaration;, or (ii) termination of this Declaration by written agreement of Developer (or its successor or assign, as applicable) and the City. Notwithstanding the date on which this Declaration becomes effective, Condominium Hotel Unit Annual Resort Payments and Fractional Unit Annual Resort Payments shall only be payable commencing on the dates provided in Sections 2.1, 2.2, and 2.3 above. 4. Covenants Running With the Land. Developer declares that the Property and all of the Units shall be field, conveyed, hypothecated, encumbered, leased, rented, used, and occupied subject to the provisions of this Declaration, all of which are declared to be in furtherance of and for the protection of and maintenance and improvement of the Units and to comply with the conditions. Pursuant to applicable law, including, but not limited to, Section 1462, 1465 and 1468 of the Civil Code of the State of California, all provisions of this Declaration (i) are hereby imposed as equitable servitudes on each of the Units for the benefit of Developer and Operator and their successors and assigns and the City, and (ii) shall run with the land and be binding upon and inure to the benefit of the Benefited Public Property and each of the Units and each and every portion thereof or interest therein, and all parties having or acquiring any right, title, or interest in the Units or any portion thereof, and their successors and assigns. 5. Assessment Appeals. Developer agrees on behalf of itself, and on behalf of all persons or entities that may own an interest in the Property or in the Units in the future, that during the term of this Declaration no action shall be taken to challenge, cancel, reduce, or otherwise negate the CHU Annual Resort Payments and Fractional Unit Annual Resort Payments required to be made to the City pursuant to the terms of this Declaration. 6. Default; Remedies; Dispute Resolution. sm m m m o 6.1 Notice of Default. In the event of failure by Developer or Developer's m successors in interest, the Operator, Association, or the Owners of Units substantially to perform m m" any material term or provision of this Declaration, the City shall have those rights and remedies m provided herein, provided that the City has first provided to the defaulting party a written notice of default in the manner required by Section 7.1 hereof identifying with specificity the nature of v the alleged default and the manner in which said default may satisfactorily be cured. v 6.2 Cure of Default. Upon the receipt of the notice of default, the defaulting party shall promptly commence to cure, correct, or remedy the identified default at the earliest reasonable time after receipt of the notice of default and shall complete the cure, correction or remedy of such default not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the notice of default, or, for such non -monetary defaults that cannot reasonably be cured, corrected or remedied within thirty (30) days, the defaulting party shall commence to cure, correct, or remedy such default within such thirty (30) day period, and shall continuously s and diligently prosecute such cure, correction or remedy to completion. 6.3 City Remedies. In the event of an uncured default by Developer, its successors in interest, the Operator, Association, or the Owners of the Units of the terms of this Declaration, the City, at its option, may institute legal action in law or in equity to cure, correct, 882/015610A084 755505 08 a02/27/07 -11- or remedy such default, enjoin any threatened or attempted violation, or enforce the terms of this Declaration; provided, however, that in no event shall City be entitled to consequential damages for any Developer default. 7. Miscellaneous. 7.1 Notices. Any notices, demands or other communications required or permitted to be given by any provision of this Declaration or which any party may desire to give the other shall be given in writing, delivered personally or sent by certified mail, postage prepaid, facsimile, or by a reputable delivery service which provides a receipt with the time and date of delivery, addressed to a party, at the addresses set forth below, or to such other address as said party may hereafter or from time to time designate by written notice to the other party. To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With copies to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem '82/015610-0084 755505 08 a02/27/07 -12- Twel Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Notice given by United States Postal Service or delivery service as provided herein shall be considered given on the earlier of the date on which said notice is actually received by the party to whom such notice is addressed, or as of the date of delivery, whether accepted or refused, established by the United States Postal Service return receipt or such overnight carrier's receipt of delivery, as the case may be. Any such notice not so given shall be deemed given upon receipt of the same by the party to which it is addressed. 7.2 Force Mai eure. In addition to specific provisions of this Declaration, performance by either party hereunder shall not be deemed to be in default where delays or failures to perform are due to war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes, governmental restrictions imposed or mandated by other governmental entities, governmental restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another party, acts or the failure to act of any public or governmental agency or entity (except that acts or mm 0ti the failure to act of the City or the Agency shall not excuse performance by the City) or any M N other causes beyond the control or without the fault of the party claiming an extension of time to m mm perform. An extension of time for any such cause shall only be for the period of the enforced mdelay, which period shall commence to run from the time of the commencement of the cause, if m notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement: of the cause. Times of performance under this Declaration may also be extended in writing by the City and the Developer. s v Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section 7.2 to an extension of time to perform because of past, present, or future difficulty in obtaining suitable construction or permanent financing for the development or operation of the Project, or because of economic or market conditions. v 7.3 Books and Records. Upon not less than ten (10) days written notice to ® Developer (or its successor or assigns), Developer shall make available to City for inspection and copying the books and records of Developer pertaining to the Project which are relevant to an audit by the City of Developer or its successor in interest's compliance with the terms of this Declaration. s 7.4 Developer's Limitation on Damages. Developer covenants on behalf of itself and its successors and assigns, including the owners of the Units, not to sue the City for 882/015610-0084 755505 08.02/27/07 -13- damages or monetary relief for any claim arising out of or connected with any dispute, controversy, or issue between Developer and City regarding this Declaration or any of the matters referred to herein including but not limited to any of the payments required to be made hereunder. 7.5 Mortgagee Protection. No portion of this Declaration or any amendment or violation thereof shall operate to defeat or render invalid, in whole or in part, the rights of the beneficiary, insurer, guarantor, or holder of any mortgage or deed of trust encumbering any portion of the Property; provided that, after foreclosure of any such mortgage or deed of trust, the property foreclosed shall remain subject to this Declaration. 7.6 Governing Law. This Declaration shall be governed by the internal laws of the State of California, without regard to conflict of law principles. 7.7 Interpretation; Incorporation. This Declaration shall be interpreted to give each of the provisions their plain meaning. The Recitals and the exhibits attached hereto are incorporated into the Declaration. 7.8 Language Construction. Designations used herein are for convenience only and shall not be controlling in the interpretation of this Declaration. 7.9 Amendment. This Declaration may only be amended pursuant to a written amendment, executed by Developer (or its successor or assign) and City, and recorded in the Office of the Recorder of Riverside County, California. 7.10 Counterparts. The parties may execute this Declaration in counterparts. Each counterpart shall be deemed an original instrument as against any party who has signed it. 7.11 Successors and Assigns. All of the terms, covenants and conditions of this Declaration shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Declaration, such term shall include any other permitted successors and assigns as herein provided. 7.12 No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Declaration to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Declaration. 7.13 Severability. If any term, provision, condition or covenant of this Declaration or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Declaration, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 7.14 Time of Essence. Time is expressly made of the essence with respect to the performance by the City and the Developer of each and every obligation and condition of this Declaration. - - IIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIII IIII IIII eefe001 e50 fs 1za 882/015610-0084 755505 08 02n7/07 -14- 7. IS Non -Liability of Officials and Employees of the City. No member, official or employee of the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the City or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Declaration. 7.1E Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Declaration, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. [signatures on next page] IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII) 08/031,2007 98 P 223 882/015610-0084 755505 08 a02/27/07 -15- IN WITNESS WHEREOF, City and Developer have executed this Declaration as of the date written above. ATTEST: City Clerk APPROVED AS TO FORM RUTAN & TUCKER, LLP City Attorney "CITY" CITY OF LA QUINTA, a California municipal corporation City Manager "DEVELOPER" "LDD" LDD SILVERROCK, LLC, a Delaware limited liability company C Its: 1111111111111III1111111111111111111111III11111 III111108/e00 579f 123R 882/015610-0084 755505 08 a0227/07 -16- STATE OF CALIFORNIA ) ) ss COUNTY OF 1 On a Notary Public, 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. before me, Witness my hand and official seal. Notary Public [SEAL.] STATE OF CALIFORNIA ) ss COUNTY OF 1 On before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 persons) acted, executed the instrument. Witness my hand and official seal. [SEAL] Notary Public IIIII III II III III I IIIII III I IIIIII III IIII I III III ss e0019650of 123R 882/015610-0084 755505 08 a02/27/07 -17- EXHIBIT A LEGAL DESCRIPTION OF PROPERTY [to be attached] 2087-0592623 IIIIIII�IIIIIIOIIIIIII�III�IIIIIIIIIIIIIIIIIIIIIII11 esrear107f IR3 015610.0084 755 EXHIBIT A 755505 08 a0227/07 EXHIBIT B FOUR STAR QUALITY REQUIREMENTS Four -Star Quality under this Declaration indicates an outstanding hotel providing the guest with a luxury experience in a distinctive setting, including expanded amenities and exceptional service. Guests can expect an exceptional experience, where no less than ninety five (95) percent of the following detailed characteristics are consistently met or exceeded. Except as provided in the following two paragraphs, the detailed characteristics list below applies in its entirety to all components in the Project, including, without limitation, all of the Units and all other facilities and amenities (including the spa, fitness facility, restaurants, etc.) to be developed on the Property. Certain of the detailed characteristics shall not apply to Condominium Hotel Units or Fractional Units located in casita buildings, and such characteristics are preceded by an asterisk (*). Subject to the immediately following paragraph, Condominium Hotel Units and Fractional Units in casita buildings shall be required to comply with all of the detailed characteristics other than those characteristics preceded by an asterisk. Certain of the detailed characteristics shall not apply to Fractional Units, and such characteristics are preceded by a double asterisk (**). Fractional Units shall be required to comply with all of the detailed characteristics other than those characteristics preceded by a single or double asterisk. mM 50 N woo 0 Services Detail 000 N ` Staff is well-groomed with professional, neat and well -maintained attire. m • All staff encountered are pleasant and professional in their demeanor. Front desk staff are articulate, smile and make eye contact. (**)The front desk is staffed twenty-four hours. • (*")Restaurant on -site serving three meals daily. Valet parking is available. • Baggage assistance is automatic. • (*;)Complimentary newspapers are delivered to room automatically. • (**)Complete room service is available. • (**)Workstation is available where guest can access Internet. (**)Basic fitness equipment is provided, including treadmills and cycles. EXHIBIT B 882i015610-008.1 Page 1 of 7 755505 08 a02/27/07 g • Written confirmation is automatic or offered, either by mail, fax or e-mail. Guests name is used effectively, but discreetly, as a signal of recognition. • The time from arriving at the reception area until registration is complete does not exceed five minutes (includes queuing). • Bed is plush and inviting with oversized or numerous pillows. • Bedcovers are elegant and stylish and with linens of exceptional quality and comfort. • All written information is provided on good quality paper or pads, custom -printed or logoed. • Bathroom presentation and placement of amenities and linens is thoughtful, careful, and elegant. • (*)Fresh ice is provided during evening service or at another time during the day. (**)Turndown service is automatically provided. (**)During turndown service, guest clothing is neatly handled and guest toiletries are m g„ neatly arranged and displayed on a cloth or shelf. 00ti N 0 � N 0 • (**)Room service is delivered within 30 minutes. 0 m Room service order is delivered within five minutes of quoted time. • (*)Two hour pressing available • (*)Same day laundry and dry cleaning is available seven days/week. • Wake-up call is personalized with guest's name and time of day. • Wake-up call is delivered within two minutes of requested time. o (**)Special service desk identified as concierge/guest service is situated apart from reception/front desk. If spa services are present, treatments are begun and ended on schedule, within five minutes of expected or booked time. • If spa services are present, during treatment, therapist appears to be genuinely expert, moving seamlessly through the treatment as described and expected. Facilities Details • Self parking area is free of debris, good condition; surfaces, curbs, paths. All outdoor walkways and approaches are well -maintained and cleaned. Outdoor awnings, signs, marquees, flags, and plantings are clean and in good condition. EXHIBIT B 882/015610-0084 Page 2 of 7 755505 08 a022a7/07 g 0 Public spaces are free of obvious hazards. O Elevator landings, cars and doors/tracks are clean and in good condition. O Guest room corridor floors, walls and ceilings are free of debris, marks, and damage. U All furniture, fixtures and equipment are clean, neat and well -maintained. Ashtrays throughout public areas are well -maintained and free of excessive debris. Temperature in all interior public areas are maintained in general comfort range. Public washrooms very hygienic and neat, with well -stocked paper and soap. Public washroom fixtures, walls and floors are in very good condition. O Meeting rooms are well -signed so that it is easy to find and arrive at a specific room. 0 Meeting room doors are in good condition, free of nicks and damage. O Meeting room interiors are in generally good condition, including walls, floors and 0 ceiling. M0Y N m o o O Lobby provides a comfortable seating area. 0 0m0 m"" Lobby floors, walls and ceiling are free of debris, marks and damage. N 0 0 0 Lobby areas feature elegant live plants and/or fresh floral displays. Notices are professional, matching decor, not "homemade". (*)Vending and/or ice machines are located on each guest floor. (**)Vending and/or ice areas and equipment are clean, well -lit, and well -maintained. Service doors are clean, free of marks and damage, and closed. (**)A variety of different sized and appointed rooms available in hotel. (**)High quality, varied, and major brand sundry selections are available in an on -site store. (**)Suite (separate bedroom and living areas) accommodations are available. • (**)A dedicated and secure luggage storage area is available. • Public phones are convenient, and equipped with seats, privacy panels and pad/pens. 11 Public washrooms are furnished with upgraded materials and appointments/luxurious design. Televisions feature premium cable TV (two movie channels, two all -news, two financial). EXHIBIT B 882/015610-0084 Page 3 of 7 755505 08 a02/27/Q7 g 10 Pay -Movie selections are available through television. U (*)Guest room telephones have two lines. U Guest rooms equipped with data ports (guest can connect laptop to the Internet). U Direct dial phones with direct long distance dialing are available in each guest room. O If public phonebook present, it is displayed in attractive cover. Guest Room Detail O Hardware and hangings (door locks, racks, artwork, etc.) are secure and in good condition. U Carpet/floor is free of debris, stains, wear, loose threads, open seams, etc. O Walls and ceilings are free of marks, stains and damage. U Drapes are free of stains, damage; pull easily and hang properly. Furniture is free of dust, marks and damage. mm All printed material including collateral, phonebooks and stationery are neat, crisp and W = current. 0^ O Drawers and shelves are clean, free of dust and debris. �N m m mAll light bulbs operate; all light fixtures and lamps are in good condition, clean. Mirrors and windows are free of smudges and damage throughout. C U If safe is provided, it is clean, functional and convenient. Room equipped with accurate, functional clock and radio/stereo. O Color television works and is equipped with remote control, and is minimum 19". All bedding and linens are free of debris, hairs, damage and stains. Room heating and air conditioning is easily controlled by guest and is quiet. Air is fresh and clean, no stuffiness or odors. Sink, tub, shower, toilet, bidet are very clean, free of hairs, stains and discoloration. Bathroom tile and grouting is clean, not discolored, cracked or mildewed. U Faucets and drains operate smoothly and easily. 41 Minimum bath linen is present: one bathmat; two each of facecloth, hand towel and bath towel. EXHIBIT B saziot5610-oos4 755505 08 a02/27/07 Page 4 of 7 Is If robes are provided, they are free of spots, stains and loose threads. U Guest room door and frame free of marks, scratches and scuffs. (*)Comfortable seating for two people (other than bed) (exemption only applies to Units in Lock -Off suites specifically designed as smaller sleeping quarters; otherwise this item is required in all accommodations designed as single hotel rooms and hotel room Lock - Off Units). 0 Guest service directory, pad and pen/pencil present and conveniently placed. O Enclosed closets (means closets must have doors). There are three spacious drawers or enclosed shelves (inside closet). A Luggage rack or bench provided; and adequate space to leave suitcase. Extra clean and hygienic blanket and pillow provided in room. Lighting throughout the room is adequate. ®� The room can be fully darkened. N0� ^ mm� (**)Full-length mirror present in room. � N 01~ A hairdryer present in room, clean and functional. m (**)Each guest room has two phones (one could be in the bathroom). Comfortable desk and chair are available for working, complete with telephone, data port, and light. Insulated ice bucket, vinyl or better, as well as glass glassware; clean and hygienic are present in room. (**)Minibar is present (defined as selection of several beverages and snacks). It is non e auto -charge, and premium products are attractively displayed. (**)Minibar is hygienic, free of spills and damage, all products are sealed, price list present. If coffeemaker is present, it is hygienic, and ceramic mugs and napkins are available. Pillows are plush and full, no foam. Framed artwork or interesting architectural features exist in room. Excellent lighting is provided in bathroom for makeup and shaving. Hygienic soap, shampoo and four other bath amenities are provided. Amenities are presented attractively, thoughtfully (not simply lined up on counter). EXHIBIT B 882/015610-0084 75550E 08 02M/07 Page 5 of 7 * Towels are of absorbent quality, with soft nap and no discoloration. Towels are free of spots, stains, tears and obvious frays. • Guest room is of generous size, and provides ample seating for more than two persons. (**)Selection of at least 10 hangers including a variety of bars, clips and padded. (**)In -room safe is present. • Bed is triple sheeted or features washable duvets. (*)Live plants are present in guest rooms. • Shaving/makeup, lighted magnifying mirror is present. Specialized Facility Detail 11 Pool/beach furniture is clean, hygienic and well -maintained. U Pool deck or beach/sand is clean and free of excessive debris. Pool deck and tiling are in good condition, free of excessive damage or wear. Pool water is clean, free of debris and free of notable odors. Pool fittings and equipment (ladders, dive boards) are secure and in good condition. ON N ^ m U If tennis exists on site under same management, court surfaces are in good condition, free m N of damage and well -marked. m� mm m Tennis courts and surrounding areas are clean and free of debris. Fixtures, nets, lights, fences are well -maintained and good condition. If golf exists on site under same management, pro shop/clubhouse interior are clean and well -maintained; displays and counters neat and tidy. Pro shop/clubhouse and surrounding areas are clean with well -maintained appearance. • Golf carts are clean, well -organized and maintained. Rental equipment is clean and good condition, including bags. * (**)Guest can pick up e-mail and access the Internet from a Business Center workstation. (**)Business Center working areas are clean, tidy and professional. (**)Comfortable office -style chairs at the Business Center guest workstations. All fitness, treatment and relaxation areas are hygienic, neatly organized and maintained. (*")Spa reception area is well-defined, neat and professional. EXHIBIT B 882/015610-0084 755505 08 a0227/09 Page 6 of 7 Fitness equipment is clean, in very good condition, conveniently laid out. Fitness/workout area is well -ventilated, with comfortable temperature. Fitness equipment is available with personal headphones/televisions. Sound system or television provided in fitness/workout areas. Towels are provided in locker and fitness areas. • Grooming area equipped with hairdryers; soap and shampoo conveniently placed. All amenities are neatly and professionally presented; very hygienic. Locker room, showers, sauna and hot tub extremely clean, hygienic appearance. If Business Center is present, a semi -private working area with workstation and telephone is available for guests. If a spa exists on site, robes and slippers or spa sandals are available in variety of sizes, and they are clean and in good condition. If spa or fitness center exists on site, complimentary amenities to include body lotion, shower caps, talc/deodorant and combs. If spa exists on site, at least two types of massage and either body treatments or facials are also offered. If tennis is available on site, water is available courtside. If pool or beach service is present, ample towels are available poolside or at the beach. Current newspapers and national -title magazines are provided in fitness and locker areas. If spa, treatment rooms are equipped with individually controlled temperature and sound systems. II�IIIIIIIIII IIIIIIIIIIIIIIIIIIIIII�II III IIIIII III IIII ea e00z 4 o98 f 123 EXHIBIT B '82/015610-0084 Page 7 of 7 755505 08 a02/27/07 g EXHIBIT "C" LEGAL DESCRIPTION OF BENEFITED PUBLIC PROPERTY [To be inserted] I III II IIIIIII III IIIII I II IIIIII I IIIIIII I II IIIIIII e8fe00 e 5 fg 123 882/015610-0084 755505 08 a02n7/07 EXHIBIT C EXHIBIT "F" LIST OF PRE -APPROVED OPERATORS 1. Tishman Hotel Corporation 2. Rosewood Hotels and Resorts, LLC 3. Gemstone Resorts International, LLC 4. Noble House Hotels and Resorts 5. Intercontinental Hotels Group 6. Marriott International, Inc. 7. Starwood Hotels and Resorts Worldwide, Inc. 8. Global Hyatt Corporation 9. Fairmont Raffles Holdings 10. Four Seasons Hotels, Inc. 11. Loews Corporation 12. West Paces Hotel Group 13. Mandarin Oriental Hotel Group 14. The Hong Kong and Shanghai Hotels 15. Vail Resorts, Inc. 16. Hilton Hotels Corporation 17. Ritz Carlton Hotel Company, LLC 18. Kimpton Hotel and Restaurant Group, LLC IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII es/e00a e50es?e 116 of 123 682/015610-0084 75053712802/26/07 EXHIBIT F EXHIBIT "G" FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT [See following document] IIIIIIIe111111111111111111111111111111111111111111 IN 2623 682901070f 00 238 882/015610-0084 750537 12 a02/26/07 EXHIBIT G RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 Attn: Timi Anyon Hallem, Esq. ASSIGNMENT AND ASSUMPTION OF DEVELOPMENT AGREEMENT This Assignment and Assumption of Development Agreement (this "Assignment") is executed by LDD SILVER ROCK, LLC, a Delaware limited liability company ("Owner"), in favor of _ , a ("Assignee") as of the _ day of , 200_, with reference to the following facts: A. Owner and the City of La Quinta, California, a California municipal corporation and charter city organized and existing under the laws of the State of California, have entered into that certain Development Agreement dated as of , recorded as Document No. in Official Records, County of Riverside, California (the "DA"). B. Owner now desires to assign and transfer to Assignee, and Assignee desires to accept from Owner all of Owner's rights and obligations in, under and to the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto. THEREFORE, Owner and Assignee agree as follows: 1. Assignment. Owner hereby assigns and transfers to Assignee all of Owner's rights in, under and to the DA and all of Owner's obligations arising under the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 2. Acceptance and Assumption. Assignee hereby accepts from Owner all of Owner's rights in, under and to the DA and agrees to assume all of Owner's obligations arising under the DA with respect to (but only with respect to) the real property described on Exhibit A attached hereto from and after the date hereof. 3. Further Assurances. Each party hereto hereby agrees to execute any additional documents, and take any further actions necessary to effect or evidence the assignment and assumption set forth in Sections 1 and 2 above. 4. Counterparts. This Assignment may be executed in counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument. aioszaaa 1 IIIIIIIIIIIIIIIIIIIIIIBIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 08its?e9zss of ten 5. Miscellaneous. This Assignment shall be binding on and inure to the benefit of the parties and their respective successors and assigns. The paragraph headings of this Assignment are for convenient reference only and shall not be used in interpreting this Assignment. 6. California Law. This Assignment shall be governed by and interpreted in accordance with the internal laws of the State of California, without regard to conflict of law principles. 7. Costs of Dispute Resolution. In the event of any action or proceeding brought by any party against any other parties under this Assignment, the prevailing parties shall be entitled to recover from the non -prevailing parties all costs and expenses, including attorneys' and experts' fees and expenses, in such action and proceeding in such amount as the court may adjudge reasonable. The prevailing parties shall be determined by the court based upon an assessment of which party's major arguments made or positions taken in the proceedings could fairly be said to have prevailed over the other parties' major arguments or positions on major disputed issues. [SIGNATURES INCLUDED ON FOLLOWING PAGE] 410823E'�3 1 IIIIIII IIIIIII III IIIII IIIII IIIIII IIIIII III IIIIIII II IN 0820 0 119 of ? 23 IN WITNESS WHEREOF, Owner and Assignee have executed this Assignment as of the date and year first above written. "OWNER" LDD SILVERROCK, LLC, a Delaware limited liability company By Its: URxyceu11Vi a By: Its: 410823II3 1 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII) 08 129 STATE OF CALIFORNIA ss. COUNTY OF ) On __, 20 , before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 in and for said County and State (SEAL) STATE OF CALIFORNIA ss. COUNTY OF ) On _, 20 , before me, , a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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 in and for said County and State (SEAL) 41082383I IIII IIIIIIIIIIIIIII III 111111111111111111 IN eale00z 1 cs223R Exhibit A Legal Description of Real Property Affected by Assignment and Assumption [See Attached] IIII III II III III I IIIII II III III II II III III 08 0001 2 of 123R Exhibit A 41082383 1 AGENCY CONSENT TO RECORDATION THE LA QUINTA REDEVELOPMENT AGENCY HEREBY CONSENTS TO THE RECORDATION OF THE FOREGOING DEVELOPMENT AGREEMENT AGAINST THE REAL PROPERTY DESCRIBED IN EXHIBIT "A" TO SAID DEVELOPMENT AGREEMENT. LA QUINTA REDEVELOPMENT AGENCY Its: STATE OF CALIFORNIA ) ss COUNTY OF ) On , before me, a Notary Public, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(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] 750537 R 0 a02/26/07 08 2� 123 8� o f� 23 EARLY ENTRY AGREEMENT (Boutique Hotel Parcel) This Early Entry Agreement ("Agreement") is entered into as of , 2007 ("EI.Tective Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and LRCF SRI, LLC, a Delaware limited liability company, formerly known as LDD SILVER ROCK, LLC, a Delaware limited liability company ("Developer"), with reference to the following facts: RECITALS A. Agency is the present owner of that certain real property located in the City of La Quinta ("City"), County of Riverside, State of California, described on Exhibit "A" hereto (herein the "Boutique Hotel Parcel"). B. On or about December 19, 2006, Agency and Developer executed that certain Disposition and Development Agreement ("DDA"), pursuant to which Agency agreed to sell to Developer the Boutique Hotel Parcel and other adjacent real property (collectively, the "Property"), and Developer agreed to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel, a four -star quality or higher luxury resort hotel, a retail village, condominium hotel units, resort units, and associated amenities, all as further described in the DDA (collectively, the "Project"). Unless otherwise specified, terms used herein shall have the meanings ascribed thereto in the DDA. C. Developer has assigned all of its rights under the DDA with respect to the Property, except for the Boutique Hotel Parcel and the Ranch Villas Parcel to LRCF SR2, LLC, a Delaware limited liability company. D. Developer has requested the right to enter onto and about the Boutique Hotel Parcel to (i) perform grading, and to temporarily park one or more trailers (the "Trailers"), on a certain portion of the Boutique Hotel Parcel (the "Sales and Marketing Area"), (ii) connect to the City's electrical, water, and sewer systems for purposes of providing electricity, water service and sewer service to the Trailers, and (iii) conduct sales and marketing activities within the Trailers regarding the Boutique Hotel. Agency is willing to allow such entry and use on the terms and conditions hereinafter specified. The Sales and Marketing Area comprises approximately thirteen thousand eight hundred forty square feet (13,840 s.f.). The Sales and Marketing Area and the approximate location of the Trailers are depicted on the Site Map attached hereto and incorporated herein as Exhibit "B". NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and the covenants and agreements contained herein, the sufficiency and receipt of which are hereby acknowledged by the parties hereto, the parties covenant and agree as follows: 1. Grant of License. Agency hereby grants to Developer and its employees, agents, invitees, engineers, contractors, consultants, and contractors (collectively, the "Related Parties") a license for the term set forth in Section 4 ("License") to enter upon the Property between the 882/O1:5610-0094 841189.06 ai0/17/07 hours of 8:00 a.m. and 7:00 p.m., seven days per week, for purposes of (i) performing grading on and locating the Trailers within the Sales and Marketing Area, (ii) connecting to the City's electrical, water, and sewer systems for purposes of providing electricity, water service and sewer service (collectively, the "Public Services") to the Trailers, and (iii) and conducting sales and marketing activities in the Trailers regarding the Boutique Hotel (collectively, the "Permitted Work"). Agency has full right, title and authority to grant Developer the License for the Permitted Work, and no third party permission or consent is needed in connection therewith. Such License shall be non -revocable for the Term defined in Section 4 below, except as otherwise set forth herein. Agency specifically agrees that Developer shall have access to and be entitled to perform the Permitted Work on all portions of the Sales and Marketing Area, provided, however, that neither Developer nor any of the Related Parties shall interfere with any other real or personal property, or enter upon any other real property, without first obtaining the written consent of the owner(s) of such other real or personal property. 2. Consideration and Public Services Charges. During the term hereof, Developer shall pay to Agency the collective sum of Nine Hundred Two Dollars and Seventeen Cents ($902.17) per month (the "Monthly Fee"), which Monthly Fee represents monthly consideration for the License in the amount of Three Hundred Seventeen Dollars and Seventeen Cents ($317.17), and a monthly charge of Five Hundred Eighty -Five Dollars ($585.00) to cover the cost: of the Public Services during such month. The first Monthly Fee shall be due on or before the Commencement Date, and each subsequent Monthly Fee shall be due on or before the first day of each month during the Term hereof. The Monthly Fee for any partial month shall be prorated, based on the number of days in such month. 3. Agency's Authority to Revoke. Agency may revoke the License upon ten (10) days written notice to Developer delivered in accordance with Subparagraph 9.8 below in the event and only in the event any of the following occur: (i) in the reasonable judgment of Agency, such revocation is necessary to protect the public health, safety, or welfare pursuant to the exercise of Agency's police powers; or (ii) Developer is in violation of the terms of this Agreement or any applicable law, statute, ordinance, rule, or regulation pertaining to the Permitted Work or Developer's or the Related Parties' entry upon the Sales and Marketing Area pursuant to, this Agreement, and Developer has failed to cure such violation within ten (10) days following Developer's receipt of notice of such violation from Agency, unless such cure cannot reasonably be completed within such ten (10) day period, in which event Agency may only revoke this License if Developer has failed to commence such cure within such ten (10) day period and to thereafter diligently prosecute the same until completion. 4. Term. Unless earlier revoked or terminated pursuant to the provisions of this Agreement, the term of the License shall commence on the date Developer shall have prepared and obtained approval from the City of, a dust control program (the "Commencement Date"), and shall terminate on the "Termination Date," which shall mean and refer to the earlier of (i) the date Developer acquires fee title to the Boutique Hotel Parcel, or (ii) on February 19, 2009. 5. Repair and Restoration of Boutique Hotel Parcel. In the event the Termination Date occurs and Developer has not acquired fee title to the Boutique Hotel Parcel from Agency, 882/01561 MO84 841189 06 aIOWN -2- Developer shall remove the Trailers and any other improvements installed or located by Developer on the Boutique Hotel Parcel pursuant to this Agreement, repair any damage Developer caused to the Boutique Hotel Parcel in the course of performing the Permitted Work, and restore the Boutique Hotel Parcel to the condition existing immediately prior to Developer's or Related Parties' entry onto the Boutique Hotel Parcel. 6. Compliance with Laws. Developer shall obtain, at is sole cost and expense, all governmental permits and authorizations required by any governmental agencies for the Permitted Work (the "Permits and Authorizations"). To the extent required, Agency shall, at no cost to Agency, cooperate with Developer to secure the Permits and Authorizations. Developer shall comply with, and shall require all of its Related Parties to comply with, all applicable governmental laws, rules, regulations and requirements governing the Permitted Work, including, but not limited to, Developer's dust control program. 7. Indemnity. Developer shall protect, defend, indemnify and hold harmless Agency and. City and their respective officers, officials, members, employees, agents, and representatives (any of the foregoing shall be known individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against and from any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and expert witness fees (hereinafter "Claims"), brought in connection with any death or personal injury to any person or persons or damage or destruction of any property arising out of or in any manner directly or indirectly connected with the entry upon the Boutique Hotel Parcel by Developer or any of its Related Parties or the activities on the Boutique Hotel Parcel (including but not limited to the Permitted Work) by,Developer or any of its Related Parties, but excluding from the foregoing (1) any Claims resulting from (A) environmental contamination of the Boutique Hotel Parcel or other conditions on the Boutique Hotel Parcel existing prior to Developer's entry thereon and not otherwise caused by Developer or any of the Related Parties; or (B) conditions or circumstances arising solely from the gross negligence, recklessness or intentional misconduct on the part of any of the Indemnitees, and (2) consequential damages, lost profits and similar damages suffered or incurred by the Agency (but not excluding such damages or profits to the extent suffered or incurred by an unrelated third party). The foregoing indemnification shall also cover: (a) any mechanics' or materialmen's liens, claims, demands, actions or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for Developer, or (ii) any activities of any of its Related Parties on or relating to the Boutique Hotel Parcel (including, without limitation, any claims by any of such Related Parties); and (b) any costs of removing Developer or its Related Parties from the Boutique Hotel Parcel if the Termination Date occurs, Developer has not acquired fee title to the Boutique Hotel Parcel, and Developer or any of its Related Parties fails to promptly vacate the Boutique Hotel Parcel. 8. Insurance. (a) Before entering the Boutique Hotel Parcel for any purpose, Developer shall cause the insurance required under this paragraph to be issued and shall include completed 882/015610-0084 841189.06 a10/17/07 -3- operations coverage until one (1) year following the end of the Term. Developer shall procure and maintain: (1) A policy of commercial general liability insurance written on a per occurrence basis in an amount not less than Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000) in the aggregate. (2) A policy of workers' compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for the Developer against any loss, claim or damage arising from any injuries or occupational diseases occurring to Developer's workers employed in the course of carrying out the work or services contemplated in this Agreement. (3) A policy of comprehensive automobile liability insurance written on a per occurrence basis in an amount not less than One Million Dollars ($1,000,000) per occurrence, and One Million Dollars ($1,000,000) in the aggregate. Said policy shall include coverage for owned, non -owned, leased, and hired cars. (b) The following additional requirements shall apply to all of the above policies of insurance: (1) All of the above policies of insurance shall be primary insurance and, except the Worker's Compensation insurance, shall name City, the Agency, and their respective officers, officials, members, employees, agents, and representatives as additional insureds. (2) The insurer shall waive all rights of subrogation and contribution it may have ,against City, Agency, and their respective officers, officials, members, employees, agents, and representatives, and their respective insurers. (3) All of said policies of insurance shall provide that said insurance may not be materially amended or cancelled without providing thirty (30) days' prior written notice to City and Agency. (4) The policies of insurance required by this Agreement shall not require Developer to meet a deductible of more than One Hundred Twenty -Five Thousand Dollars ($125,000) unless approved in writing by the City Manager in his or her sole and absolute discretion. (c) In the event any of said policies of insurance are cancelled, the Developer shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section to the City Manager if this Agreement has not yet been terminated or expired. (d) Not later than the Commencement Date, Developer shall provide the Agency Executive Director with Certificates of Insurance or appropriate insurance binders evidencing the above insurance coverages and said Certificates of Insurance or binders shall be subject to the reasonable approval of the Executive Director. 882/015610-0094 841139.06 a]0/17/07 -4- (e) Developer agrees that the provisions of this Section shall not be construed as limiting in any way Developer's indemnity obligations set forth in Section 7 or the extent to which Developer may be held responsible for the payment of damages to any persons or property resulting from the Developer's activities or the activities of any person or persons for which the Developer is otherwise responsible. 9. Miscellaneous. 9.1 Authority. Each signatory hereto warrants to the other party that it has authority to sign on behalf of the party for whom it purports to sign. 9.2 Attorneys' Fees. In the event any parry hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees. 9.3 Entire Agreement. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. 9.4 Counteroarts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 9.5 Litigation Matters. The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made by personal service upon any officer of the Developer; whether made within or outside the State of California, or in such other manner as may be provided by law. 9.6 Non -liability of Agency Officers and Employees. No officer, official, member, employee, agent, or representative of Agency shall be personally liable to Developer, or any successor or assign of same, in the event of any default or breach by Agency, or for any amount which may become due to Developer, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement. 9.7 Covenant Against Discrimination. Developer covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. 9.8 Notices. Unless other sections of this Agreement require notice to be given by other means, all notices required to be delivered under this Agreement or under applicable,law shall be delivered by one of the following means: (a) personal delivery; (b) delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by 882/015610-0084 841189 06 a10117107 -5- Federal Express or a comparable overnight courier service that provides a receipt showing date and time of delivery; or (d) delivery by facsimile provided the sender receives confirmation the facsimile was received. Notices personally delivered or delivered by a courier service shall be eMctive upon receipt. Notices delivered by United States mail shall be effective at 5:00 p.m. on the second business day following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that any faxed notices which are transmitted at any time other than between 8:00 a.m. to 5:00 p.m. Monday through Friday (excluding legal holidays) shall be deemed transmitted as of the next business day. Notices shall be delivered to the following addresses: To Agency: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To Developer: LRCF SRI, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-914-5844 Attention: Timi A. Hallem, Esq. and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 882/015610-0084 841189 06 aI0/17/07 -6- Changes in the address to be used for receipt of notices shall be effected in accordance with this Paragraph 9.8. 9.9 Time of Essence. Time is of the essence in the performance of the Agreement. IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above -written. "DEVELOPER" LRCF SR1, LLC, a Delaware limited liability company By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By(/�ma� Name: Its: Executive Director 882/015610-0084 84110.06 a]0118107 -7- EXHIBIT "A" LEGAL DESCRIPTION OF BOUTIQUE HOTEL PARCEL [To be inserted] 882/015610-0084 841189.06 a10/17/07 -8- EXHIBIT "A" LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5 AND THE NORTH WEST QUARTER OF THE NORTH WEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 41057'54" WEST 674.79 FEET, THENCE NORTH 88-27.35" WEST 244.20 FEET; THENCE NORTH 7047' 15" WEST 289.62 FEET; THENCE NORTH 83°26'27 EAST 398.98 FEET; THENCE SOUTH 29°58'01" EAST 952.82 FEET; THENCE SOUTH 52039'03" EAST 485.41 FEET; THENCE SOUTH 57°16'16" EAST 463.15 FEET; THENCE SOUTH 30058'20" WEST 183.52 FEET TO THE BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 10057'45" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A 118.00 FEET RADIUS CURVE HAVING A RADIAL TO WHICH BEARS SOUTH 21049'41" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40020'08" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30032' l6" A DISTANCE OF 45.84 FEET; THENCE SOUTH 28°00'41" EAST 18.67 FEET; THENCE SOUTH 61059'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 57°00'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.84 FEET RADIUS CURVE CONCAVE NORTHEASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 20°04'07" EASTc� THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36031'16" A DISTANCE OF 145.23 FEET; THENCE NORTH 33'24'3T' WEST 99.07 FEET; THENCE NORTH 66°23'28" EAST 120.28 FEET; THENCE NORTH 23°38'13" WEST 532.29 FEET; THENCE NORTH 41057154" WEST 149.34 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 600,614 SQ. FT. 13.79 ACRES 3 Nf.4666 y OHN F. YOUp , PL6A665 DATt1� EXHIBTI" LOT 18 I \ i Jccw ROAD ! 11 \ t I 11 I II � I � \ for A \ I I nor If / II Lor A III M I I 87,Jt' 9 ( i I I Y=! It 111 III a I 9-30-08 � Y e g � SCALE: f._300. J40H FN—F. YOU S 4665 DATE REVISED TENTATIVE is —Dose CONSTRUCTION TESTING & ENGINEERING, INC. PARCEL MAP 33387t'�oG rLAEIIIMO -CIVIL EIOIAEEMIMO-LAMP 1UMVEYIMM-OEOTECMIICAE 1441 MOATIEL RAW 1911E 115 E1COM1100 CA 1101. /0:1111) 711.4115 FOR LOT 19 ,�pp EXHIBIT "B" SITE MAP AND DEPICTION OF SALES AND MARKETING AREA [To be inserted] 882/015610-0084 841189.06 a10/17/07 EXHIBIT "B" P.O. Box 1504 78-495 CALLS TAMPICO LA QUINTA, CALIFORNIA 92253 October 5, 2007 Ted Lennon, President Lowe Destination Development — Desert Development La Solana at SilverRock 78-034 Calle Barcelona, Suite A La Quinta, CA 92253 Re: DDA Extension Dear Ted: (760)777-7000 FAX (760) 777-7101 I have received your letter dated September 28, 2007, regarding extending the Outside Date for Closing for the Boutique Hotel Parcel for six (6) months pursuant to Section 202.5 of the Disposition and Development Agreement entered into between the La Quinta Redevelopment Agency and LDD SilverRock, LLC on December 19, 2006. By execution of this letter, I hereby give my consent and agree to the aforementioned six (6) month extension. Please do not hesitate to contact me if you have any questions. Sincerely, Thomas P. Genovese Executive Director 4 �-ayee(4 MAjj&( IDj���fl� AMENDMENT NO.1 TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDMENT NO. 1 TO DISPOSITION AND DEVELOPMENT AGREEMENT ("Amendment No. 1") is made and entered into as of4aeghtr a3 , 2008 ("Effective Date") by and between LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LRCF SRI, LLC, formerly known as LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. On or about December 19, 2006, the Agency and Developer entered into that certain Disposition and Development Agreement (the "DDA"), pursuant to which Agency agreed to sell to Developer, and Developer agreed to purchase from Agency that certain real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 (the "Property") and to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel and a four -star quality or higher luxury resort hotel, a retail village condominium hotel units, resort units, and associated amenities (collectively, the "Project"). All capitalized terms not specifically defined herein shall have the meanings ascribed thereto in the DDA. B. Developer has assigned to LRCF SR2, LLC, a Delaware limited liability company, all of its rights and obligations in, under and to the DDA with respect to all of the real property identified in the DDA other than the parcels identified therein as the "Boutique Hotel Parcel" and the "Ranch Villas Parcel." C. On or about November 6, 2007, the Agency Executive Director granted Developer a one hundred eighty (180) day extension to the timeframe for Developer to prepare final grading plans and Design/Construction Development Drawings for the Boutique Hotel (the `BH Drawings Deadline")- D. On July 15, 2008, the Agency Board of Directors approved an additional ninety (90) day extension to the BH Drawings Deadline. E. On September 16, 2008, the Agency Board of Directors directed Agency staff to prepare an amendment providing Developer with an additional ninety (90) day extension to the BH Drawings Deadline, and to provide the Agency's Executive Director with authority to grant additional extensions to the BH Drawings Deadline of up to a total of ninety (90) additional days. F. Agency and Developer now desire to amend the DDA to reflect the time extensions described in Recitals C, D, and E above, and to make certain other conforming timeframe changes. 882/015610-0094 950474 02 a10/02/08 -� - AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by this reference and for valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The DDA is hereby amended as follows: 1.1 To revise the Time for Completion in Item 11 of the Schedule of Performance for the Boutique Hotel to state: `By January 6, 2010." 1.2 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Boutique Hotel to replace the phrase "20 months after the Effective Date" with "32 months after the Effective Date." 1.3 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Ranch Villas Development to replace the phrase "20 months after the Effective Date" with "32 months after the Effective Date." 1.4 To replace the first paragraph of text in Attachment No. 3, in its entirety, with the following: The Purchase Price for each of the Golf Casitas Parcel, Lake Casitas Parcel, Ranch Villas Parcel, Resort Hotel Parcel, Resort Retail Village Parcel (if sold to Developer), and Black Box Parcel shall be determined in the following manner: On or before December 6, 2010, and on or before the close of each three (3) year period thereafter until all Parcels have been sold and conveyed to Developer, Developer and Agency shall select an appraiser reasonably acceptable to both parties and commission an updated appraisal reflecting the fair market value of any of the Parcels that have not, as of said date, been sold to Developer (each, an "Appraisal"). Except as provided below, Agency shall be responsible for all of the costs associated with each of said Appraisals. The Purchase Price for each Parcel (except the Boutique Hotel Parcel) shall be the fair market value of the Parcel, as set forth in the most recent Appraisal. Subject to the following sentence, the Purchase Price for the Boutique Hotel Parcel shall be as set forth above. Notwithstanding anything herein to the contrary, in the event any of the Parcels, including, without limitation, the Boutique Hotel Parcel, are sold to Developer before December 6, 2010, and the acreage of the Parcel, as indicated by the final and recorded Parcel Map, differs from the acreage set forth herein, then the Purchase Price for said Parcel shall be recalculated, based on the following price per acre: 2. Developer acknowledges and agrees that as a result of the three hundred sixty (360) days in extensions granted to Developer hereby, the various payments set forth in the form of City Declaration of CC&Rs attached as Exhibit E to the Development Agreement (Attachment No. 6 to the DDA) may be understated, and, if so, will require revision prior to Developer's execution of the first City Declaration of CC&Rs. In addition to the conditions to closing set forth in 8821015610-0084 950474.02 a10/02/08 -2- Section 205 of the DDA, in the event that there is an increase in the "ADR Index" during the 2007 calendar year, the Closing for the Boutique Hotel Parcel shall be conditioned on City and Developer executing an amendment to the Development Agreement that revises the form of City Declaration of CC&Rs to increase the amounts stated therein for "Excess Use Payments," "CHU Annual Resort Payments," and "Fractional Unit Annual Resort Payments" by such increase (as those terms are defined in the City Declaration of CC&Rs). 3. Agency's Executive Director shall have the right to unilaterally grant Developer with extensions of time above and beyond the extensions granted hereby, provided such new extensions do not exceed, cumulatively, a total of three (3) additional months, and provided Agency's Executive Director notifies the Board of Directors of such new extensions prior to granting the same. 4. Except as otherwise expressly provided in this Amendment No. 1, all of the terms and conditions of the DDA shall remain in full force and effect. 5. In the event of any action between Agency and Developer seeking enforcement of any of the terms and conditions to this Amendment No. 1, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney's fees. 6. This Amendment No. 1 shall be construed according to its fair meaning and as if prepared by both parties hereto. 7. This Amendment No. 1 shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Amendment No. 1. Service of process on Agency shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 8. Time is of the essence of this Amendment No. 1 and of each and every term and provision hereof. 9. 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 Agency and Developer. 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. 10. This Amendment No. 1 may be executed in counterparts, each of which, when this Amendment No. 1 has been signed by all the parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 11. The person(s) executing this Amendment No. 1 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 Amendment No. 1 on behalf of said party, (iii) by so 882/015610-0084 950474 02 a10/02/08 -3- executing this Amendment No. 1 such party is formally bound to the provisions of this Amendment No. 1, and (iv) the entering into this Amendment No. 1 does not violate any provision of any other agreement to which such party is bound. [End — Signature Page Follows] 882/015610-0084 950474.02 a10/02/08 -4- IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read this Amendment No. 1, understands it, and hereby executes this Amendment No. 1 to be effective as of the day and year first written above. Date: 0u � 3 ) , 2008 Date:/��2008 r.: eronica J. '� i APPROVED AS TO FORM: RUTA 8 TUCKEP, LLP By . Katherine JensbeAgency Counsel "Developer" LRCF SRI, LLC, a Delaware limited liability company By: Its: "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public bo y, corporate po it'C By: Executive Director 882/015610-0084 950474 02 a10/02/08 -5- AMENDMENT NO. 1 TO EARLY ENTRY AGREEMENT (Boutique Hotel Parcel) This Amendment No. 1 to Early Entry Agreement ("Amendment No. 1") is entered into as of 0&l . ate. 2009 ("Amendment Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LRCF SRI, LLC, a Delaware limited liability company, formerly known as LDD SILVER ROCK, LLC, a Delaware limited liability company ("Developer"), with reference to the following facts: RECITALS A. Agency is the present owner of that certain real property located in the City of La Quinta ("City"), County of Riverside, State of California (the "Boutique Hotel Parcel"). B. On or about December 19, 2006, Agency and Developer executed that certain Disposition and Development Agreement (the " Original DDA"), pursuant to which Agency agreed to sell to Developer the Boutique Hotel Parcel and other adjacent real property (collectively, the "Property"), and Developer agreed to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel, a four -star quality or higher luxury resort hotel, a retail village, condominium hotel units, resort units, and associated amenities, all as further described in the Original DDA (collectively, the "Project"). C. On or about October 23, 2008, Agency and Developer executed that certain Amendment No. 1 to Disposition and Development Agreement, pursuant to which certain dates in the Schedule of Performance attached to the Original DDA were extended ("Amendment No. 1"). The Original DDA, as amended by the terms of Amendment No. 1, is hereinafter referred to as the "DDA." Unless otherwise specified, terms used herein shall have the meanings ascribed thereto in the DDA. D. On or about October 22, 2007, Agency and Developer executed that certain Early Entry Agreement, pursuant to which Developer was permitted to enter the Boutique Hotel Parcel to (i) perform grading, and to temporarily park one or more trailers (the "Trailers"), on a certain portion of the Boutique Hotel Parcel (the "Sales and Marketing Area"), (ii) connect to the City's electrical, water, and sewer systems for purposes of providing electricity, water service and sewer service to the Trailers, and (iii) conduct sales and marketing activities within the Trailers regarding the Boutique Hotel (the "Early Entry Agreement"). The Sales and Marketing Area comprises approximately thirteen thousand eight hundred forty square feet (13,840 s.f). The Sales and Marketing Area and the approximate location of the Trailers are depicted on the Site Map attached to the Early Entry Agreement as Exhibit "B". E. As a result of declining market conditions, as of the Amendment Date, the Trailers are not occupied. The parties now wish to modify Developer's monthly payment requirements as set forth in the Early Entry Agreement to provide for lesser payments in months during which the Trailers remain unoccupied. NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and the covenants and agreements contained herein, the sufficiency and 882/0156M0084 1131342.02 a08/12/09 -1- receipt of which are hereby acknowledged by the parties hereto, the parties covenant and agree as follows: 1. Notification Prior to Occuoving Trailers. Developer shall provide the Agency with written notice that Developer intends to occupy the Trailers not less than thirty (30) days prior to occupying the Trailers. 2. Consideration and Public Services Charges. Commencing on the Amendment Date, the monthly payment requirements, currently set forth in Section 2 of the Early Entry Agreement, shall be as follows: On or before the first day of each month during the Term hereof, Developer shall pay to Agency a monthly fee (each, a "Monthly Fee"). The Monthly Fee for any partial month shall be prorated, based on the number of days in such month. (a) For each month in which all of the Trailers remain unoccupied by the Developer, the Monthly Fee shall be the collective sum of Five Hundred Dollars ($500.00) per month, which represents monthly consideration for the License in the amount of Three Hundred Seventeen Dollars and Seventeen Cents ($317.17), and a monthly charge of One Hundred Eighty -Two Dollars and Eighty Three Cents ($182.83) to cover the cost of the Public Services during such month. (b) For the first month in which any of the Trailers are occupied by the Developer, and for each month thereafter, the Monthly Fee shall be the collective sum of Nine Hundred Two Dollars and Seventeen Cents ($902.17) per month, which represents monthly consideration for the License in the amount of Three Hundred Seventeen Dollars and Seventeen Cents ($317.17), and a monthly charge of Five Hundred Eighty -Five Dollars ($585.00) to cover the cost of the Public Services during such month. In the event that Developer commences occupying one or more Trailers after it has already paid the Monthly Fee set forth in paragraph (a) above, Developer shall immediately make a payment to Agency of Four Hundred Two Dollars and Seventeen Cents ($402.17) (e.g., the difference between the Monthly Fee required to be paid pursuant to paragraph (a) and the Monthly Fee required to be paid pursuant to paragraph (b). Commencing on the first anniversary of the first month in which Developer occupies a Trailer, and on each annual anniversary thereafter, the Monthly Fee shall be increased by the percentage increase in the Consumer Price Index published by the United States Department of Labor, Bureau of Labor Statistics, for Urban Wage Earners and Clerical Workers, Los Angeles - Riverside -Orange County Average, All Items (1984 = 100) (the "Index"), or, if said Index is discontinued, such official index as may then be in existence and which is most nearly equivalent to said Index (the "CPI Adjustment'). 2. Term. As of the Amendment Date, 4 of the Early Entry Agreement, shall mean and acquires fee title to the Boutique Hotel Parcel, Boutique Hotel Parcel as specified in the DDA, other extension to such date. 882/015610-0084 1031342.02 a08/12/09 -2- the "Termination Date," as defined in Section refer to the earlier of (i) the date Developer or (ii) on the outside date for closing for the or any subsequent amendment thereto or any 3. Except as expressly provided herein, all of the terms and conditions of the Early Entry Agreement shall remain in full force and effect. 4. Miscellaneous. 4.1 Authority. Each signatory hereto warrants to the other party that it has authority to sign on behalf of the party for whom it purports to sign. 4.2 Attorneys' Fees. In the event any party hereto brings suit to enforce the terms of this Amendment No. 1 or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees. 4.3 Counterparts. This Amendment No. 1 may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 4.4 Litigation Matters. The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Amendment No. 1. This Amendment No. I shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on Developer shall be made by personal service upon any officer of the Developer, whether made within or outside the State of California, or in such other manner as may be provided by law. 4.4 Fair Meaning. This Amendment No. 1 shall be construed according to its fair meaning and as if prepared by both parties hereto. 4.5. Time of Essence. Time is of the essence of this Amendment No. I and of each and every term and provision hereof. 4.6. Waiver. 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 Agency and Developer. 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. [End- Signatures on next page] 882/01561 M084 1031342.02 a08/12/09 -3- IN WITNESS WHEREOF, this Amendment No. 1 has been executed by the parties hereto as of the date first above -written. "DEVELOPER" LRCF SR1, LLC, a Delaware limited liability cuu By: Its: "AGENCY" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic f Name: "TljhirrNS GFjrIOv�SE Its: Executive Director 882/015610-0084 1031342.02 a08/12/09 -4- AMENDMENT NO.2 TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDMENT NO. 2 TO DISPOSITION AND EVELOPMENT AGREEMENT ("Amendment No. 2") is made and entered into as of _a.1 , 2009 ("Effective Date") by and between LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LRCF SRI, LLC, formerly known as LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. On or about December 19, 2006, the Agency and Developer entered into that certain Disposition and Development Agreement (the "Original DDA"), pursuant to which Agency agreed to sell to Developer, and Developer agreed to purchase from Agency that certain real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 and to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel and a four -star quality or higher luxury resort hotel, a retail village condominium hotel units, resort units, and associated amenities. All capitalized terms not specifically defined herein shall have the meanings ascribed thereto in the Original DDA. B. Developer has assigned to LRCF SR2, LLC, a Delaware limited liability company, all of its rights and obligations in, under and to the Original DDA with respect to all of the real property identified in the Original DDA other than the parcels identified therein as the "Boutique Hotel Parcel" and the "Ranch Villas Parcel." C. On or about October 23, 2008, the Agency and Developer entered into that certain Amendment No. 1 to Disposition and Development Agreement to provide Developer with extensions to certain timeframes under the Original DDA ("Amendment No. 1"). The Original DDA, as amended by Amendment No. 1, is hereinafter referred to as the "DDA." D. Agency and Developer have commenced discussions that could result in significant additional changes to the DDA. Developer is required to provide Agency with a deposit, in the amount of Thirty Thousand Dollars ($30,000), prior to Agency commencing work on any DDA revisions, to cover Agency's legal costs and fees in preparing said revisions (the "DDA Deposit"). E. Pursuant to Section 208 of the DDA, Developer has deposited with the Escrow Agent certain Deposit Payments. Section 208.2 of the DDA provides that portions of the Deposit Payments may be released to Developer for certain costs related to the Project, but expressly excludes legal fees and costs. Developer and Agency now wish to revise Section 208.2 to allow for the disbursement of portions of the Deposit Payments to Agency to cover the DDA Deposit and any necessary replenishment to the same. 882/015610-0084 _ 1037019,01 .10/07/09 -t AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and for valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Section 208.2 of the DDA is hereby amended to allow for the following releases, directly to Agency, of Deposit Payment funds: 1.1 An initial release of Deposit Payment funds in the amount of the DDA Deposit; 1.2 One or more subsequent releases of Deposit Payment funds, in the amount of Ten Thousand Dollars ($10,000) each, in the event the balance of the funds comprising the DDA Deposit (as such balance may be replenished pursuant to this Subsection), declines below Five Thousand Dollars ($5,000) prior to the time the revisions to the DDA have been fully completed, approved, and executed by Agency and Developer. Agency and Developer agree to promptly execute any necessary instructions to the Escrow Agent to effect such release(s). 2. Except as otherwise expressly provided in this Amendment No. 2, all of the terms and conditions of the DDA shall remain in full force and effect. 3. In the event of any action between Agency and Developer seeking enforcement of any of the terms and conditions to this Amendment No. 2, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney's fees. 4. This Amendment No. 2 shall be construed according to its fair meaning and as if prepared by both parties hereto. 5. This Amendment No. 2 shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Amendment No. 2. Service of process on Agency shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 6. Time is of the essence of this Amendment No. 2 and of each and every term and provision hereof. 7. 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 Agency and Developer. 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. 182/015610-0084 1037019.01 a10/07/09 -2- 8. This Amendment No. 2 may be executed in counterparts, each of which, when this Amendment No. 2 has been signed by all the parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 9. The person(s) executing this Amendment No. 2 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 Amendment No. 2 on behalf of said party, (iii) by so executing this Amendment No. 2 such party is formally bound to the provisions of this Amendment No. 2, and (iv) the entering into this Amendment No. 2 does not violate any provision of any other agreement to which such party is bound. [End — Signature page follows} 882/015610-0084 1037019 01 al0107/09 -3- IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read this Amendment No. 2, understands it, and hereby executes this Amendment No. 2 to be effective as of the day and year first written above. Date:. 2009 Date: 2009 APPROVED AS TO FORM: RUTAN k TUCKER LLP By: M. Katherine Jens , Agency Counsel "Developer" LRCF SR1, LLC, a Delaware limited liability company By Its: "Agency LA QUINTA REDEVELOPMENT AGENCY, a p body, corporateeaannd�jpolitic By: 1./, Executive Director 892/015610-0084 1037019.01 a10/07/09 -4- AMENDMENT NO.3 TO DISPOSITION AND DEVELOPMENT AGREEMENT THIS AMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT AGREEMENT ("Amendment No. 3") is made and entered into as of November D , 2009 ("Effective Date") by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LRCF SRI, LLC, formerly known as LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. On or about December 19, 2006, the Agency and Developer entered into that certain Disposition and Development Agreement (the "Original DDA"), pursuant to which Agency agreed to sell to Developer, and Developer agreed to purchase from Agency that certain real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 and to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel and a four -star quality or higher luxury resort hotel, a retail village condominium hotel units, resort units, and associated amenities. All capitalized terms not specifically defined herein shall have the meanings ascribed thereto in the Original DDA. B. Developer has assigned to LRCF SR2, LLC, a Delaware limited liability company, all of its rights and obligations in, under and to the Original DDA with respect to all of the real property identified in the Original DDA other than the parcels identified therein as the "Boutique Hotel Parcel" and the "Ranch Villas Parcel." C. On or about October 23, 2008, the Agency and Developer entered into that certain Amendment No. 1 to Disposition and Development Agreement to provide Developer with extensions to certain timeframes under the Original DDA ("Amendment No. I"). D. On or about October 21, 2009, the Agency and Developer entered into that certain Amendment No. 2 to Disposition and Development Agreement to allow for the disbursement to Agency of portions of the Deposit Payments made by Developer pursuant to Section 208 of the DDA to cover Agency's legal costs and fees in preparing an amendment to the DDA ("Amendment No. 2"). The Original DDA, as amended by Amendment No. I and Amendment No. 2, is hereinafter referred to as the "DDA." E. Pursuant to authority granted by the Agency Board of Directors, the Agency Executive Director has granted the Developer a further extension to the outside closing date for the Boutique Hotel Parcel and Ranch Villas Parcel (e.g., Item No. 21 in each of the Schedule of Performance for the Boutique Hotel and the Schedule of Performance for the Ranch Villas Development), such that the Time for Completion for each Item is currently November 17, 2009. F. Developer and Agency now wish to further extend each such Time for Completion to provide the parties with sufficient time to complete a comprehensive amendment to the DDA. Sava 15610-0084 1049372.02 el 1/12/09 't' AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. The DDA is hereby amended as follows: 1.1 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Boutique Hotel to replace the phrase "the date that is 32 months after the Effective Date" with "January 31, 2010." 1.2 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Ranch Villas Development to replace the phrase "the date that is 32 months after the Effective Date" with "January 31, 2010." 2. Agency's Executive Director shall have the right to unilaterally grant Developer with extensions of time above and beyond the extensions granted hereby, provided such new extensions do not exceed, cumulatively, a total of three (3) additional months. 3. Except as otherwise expressly provided in this Amendment No. 3, all of the terms and conditions of the DDA shall remain in full force and effect. 4. In the event of any action between Agency and Developer seeking enforcement of any of the terms and conditions to this Amendment No. 3, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney's fees. 5. This Amendment No. 3 shall be construed according to its fair meaning and as if prepared by both parties hereto. 6. This Amendment No. 3 shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Amendment No. 3. Service of process on Agency shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 7. Time is of the essence of this Amendment No. 3 and of each and every term and provision hereof. 8. 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 Agency and Developer. 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. 682/015610-0084 1049372.02 al 1/12/09 -2- 9. This Amendment No. 3 may be executed in counterparts, each of which, when this Amendment No. 3 has been signed by all the parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 10. The person(s) executing this Amendment No. 3 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 Amendment No. 3 on behalf of said party, (iii) by so executing this Amendment No. 3 such party is formally bound to the provisions of this Amendment No. 3, and (iv) the entering into this Amendment No. 3 does not violate any provision of any other agreement to which such party is bound. 882/01561M084 1049312.02 al1/12/09 [End — Signature page follows) -3- IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read this Amendment No. 3, understands it, and hereby executes this Amendment No. 3 to be effective as of the day and year first written above. "Developer" LRCF SRI, LLC, a Delaware limited liability company 6f; LAP-6 L1. L Date: 2009 By: e�n i f/ r�hwr� {l itina en e L� L Itsl: "Agency" LA QUINTA REDEVELOPMENT AGENCY, a pubucc 0 dy, corporate n litic Date: // O 2009/astir Executive Director ST: ,!�f-/ Veronica J. Monteano, Agency Secretary G' APPROVED AS TO FORM: RUTAN & TU.CKER, LLP By: M. me Jenson, Agency Counsel M2�5wlr� 112/015610-0084 1049372. 02.11/12/09 -4- AMENDMENT NO.4 TO DISPOSITION AND DEVELOPMENT AGREEMENT This AMENDMENT NO. 4 TO DISPOSITION AND DEVELOPMENT AGREEMENT ("Amendment No. 4") is made and entered into as of April o'�l , 2010 ("Effective Date") by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LRCF SRI, LLC, formerly known as LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS: A. On or about December 19, 2006, the Agency and Developer entered into that certain Disposition and Development Agreement (the "Original DDA"), pursuant to which Agency agreed to sell to Developer, and Developer agreed to purchase from Agency, that certain real property located at the southwest intersection of Jefferson Street and Avenue 52 in the City of La Quinta, California 92253 and to construct, complete, and operate thereon a commercial project containing a luxury four -star quality or higher boutique hotel and a four -star quality or higher luxury resort hotel, a retail village, condominium hotel units, resort units, and associated amenities. B. Developer has assigned to LRCF SR2, LLC, a Delaware limited liability company, all of its rights and obligations in, under and to the Original DDA with respect to all of the real property identified in the Original DDA other than the parcels identified therein as the "Boutique Hotel Parcel" and the "Ranch Villas Parcel." C. On or about October 23, 2008, the Agency and Developer entered into that certain Amendment No. 1 to Disposition and Development Agreement to provide Developer with extensions to certain timeframes under the Original DDA ("Amendment No. I "). D. On or about October 21, 2009, the Agency and Developer entered into that certain Amendment No. 2 to Disposition and Development Agreement to allow for the disbursement to Agency of portions of the Deposit Payments made by Developer pursuant to Section 208 of the DDA to cover Agency's legal costs and fees in preparing a comprehensive amendment to the DDA ("Amendment No. 2"). E. On or about November 20, 2009, the Agency and Developer entered into that certain Amendment No. 3 to Disposition and Development Agreement to provide Developer with an additional extension to the outside closing date for the Boutique Hotel Parcel and Ranch Villas Parcel (e.g., Item No. 21 in each of the Schedule of Performance for the Boutique Hotel and the Schedule of Performance for the Ranch Villas Development), to extend each of such dates to January 31, 2010 ("Amendment No. 3"). The Original DDA, as amended by Amendment No. 1, Amendment No. 2, and Amendment No. 3, is hereinafter referred to as the "DDA." All capitalized terms not specifically defined herein shall have the meanings ascribed thereto in the DDA. F. Pursuant to authority granted by the Agency Board of Directors in Amendment No. 3, the Agency Executive Director has granted the Developer a further extension to the 882/015610-0084 1079735.01 a03/24/10 -1- outside closing date for the Boutique Hotel Parcel and Ranch Villas Parcel, such that the Time for Completion for each Item is currently April 30, 2010. G. Developer and Agency now wish to further extend each such Time for Completion to provide the parties with sufficient time to complete a comprehensive amendment to the DDA. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: The DDA is hereby amended as follows: 1.1 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Boutique Hotel to replace the date "April 30, 2010" with "July 31, 2010." 1.2 To revise the Time for Completion in Item 21 of the Schedule of Performance for the Ranch Villas Development to replace the date "April 30, 2010" with "July 31, 2010." 2. Except as otherwise expressly provided in this Amendment No. 4, all of the terms and conditions of the DDA shall remain in full force and effect. 3. In the event of any action between Agency and Developer seeking enforcement of any of the terms and conditions to this Amendment No. 4, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney's fees. 4. This Amendment No. 4 shall be construed according to its fair meaning and as if prepared by both parties hereto. 5. This Amendment No. 4 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 Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the parties concerning this Amendment No. 4. Service of process on Agency shall be made in accordance with California law. Service of process on Developer shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 6. Time is of the essence of this Amendment No. 4 and of each and every term and provision hereof. 7. 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 Agency and Developer. 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. 882/015610-0084 1078735.01 a03/24/10 -2- 8. This Amendment No. 4 may be executed in counterparts, each of which, when this Amendment No. 4 has been signed by all the parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 9. The person(s) executing this Amendment No. 4 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 Amendment No. 4 on behalf of said party, (iii) by so executing this Amendment No. 4 such party is formally bound to the provisions of this Amendment No. 4, and (iv) the entering into this Amendment No. 4 does not violate any provision of any other agreement to which such party is bound. IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read this Amendment No. 4, understands it, and hereby executes this Amendment No. 4 to be effective as of the day and year first written above. "Developer" LRCF SRI, LLC, a Delaware lim4ed liability company Dater 2010 By Its: "Agency" LA QUINTA REDEVELOPMENT AGENCY, L/� a pu b y, corporate d tic Date: �T 2010 y:- Executive Director Veronica J. Monte6ino, Agency Secretary APPROVED AS TO FORM: RUTAN & TUC .ER LLP By: atherine Jens Agency Co set 882/015610-0084 1078735.01 a03/24/10 -3- ACKNOWLEDGEMENT OF TERMINATION AND JOINT ESCROW INSTRUCTIONS REGARDING RELEASE OF FUNDS This ACKNOWLEDGEMENT OF TERMINATION AND JOINT ESCROW INSTRUCTIONS REGARDING RELEASE OF FUNDS (this "Agreement") is entered into as of November L, 2010 ("Effective Date"), by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and LDD SILVERROCK, LLC, a Delaware limited liability company ("Developer"). RECITALS The following recitals are a substantive part of this Agreement: A. The Agency and Developer entered into a Disposition and Development Agreement dated December 19, 2006, and amended on four (4) different occasions (as amended, the "DDA"), pursuant to which the Agency, subject to the terms and conditions in the DDA, agreed to sell to the Developer certain real property identified in the DDA as the "Property," and the Developer agreed to construct and operate thereon a commercial project containing, in addition to other components, luxury hotel and condominium units and a retail village. B. In connection with the DDA, the Developer and the City of La Quinta ("City") entered into that certain Development Agreement or about December 6, 2006, which was recorded in the Official Records of Riverside County ("Official Records") on August 3, 2007, as Instrument No. 2007-0502623 (the "Development Agreement"). Section 1.4 of the Development Agreement provides that it will automatically terminate in the event the "Initial Escrow" (as defined in the DDA) fails to close within the time period set forth in the DDA. C. The Initial Escrow did not close within the time period set forth in the DDA, and on or about August 2, 2010, the Agency terminated the DDA. D. Pursuant to the DDA, Developer made certain deposits into Escrow Account No. 8422024839 (the "Deposit Funds Account"), held by Debra Dunn, at First American Title Insurance Company (the "Escrow Holder"), and was permitted to draw down certain of the funds in the Deposit Funds Account for use in preparing plans and related activities. As of the date of this Agreement, the balance remaining in the Deposit Funds Account is approximately Five Hundred Ninety -Nine Thousand Dollars ($599,000) (the "Deposit Funds"). Developer and Agency are in dispute regarding which party is entitled to the release of the Deposit Funds pursuant to the DDA. E. The parties intend, by this Agreement, to provide for (i) the formal acknowledgement that the DDA and DA have been terminated; (ii) the recordation in the Official Records of a quitclaim deed executed by Developer quitclaiming to the City all of Developer's rights and interests relating to the DA; (iii) the recordation in the Official Records of a quitclaim deed executed by Developer quitclaiming to the Agency all of Developer's rights and interests relating to the Property and the DDA; (iv) Developer's removal of the sales trailer from, and 882/0156/0 0084 112775207 a11/10110 restoration of, the real property identified in the DDA as the `Boutique Hotel Parcel'; and (v) the release of the Deposit Funds to Developer and Agency, on a 50/50 basis. NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated herein by this reference, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Agency and Developer hereby agree as follows: 1. Escrow Instructions. This Agreement constitutes the joint escrow instructions of Developer and Agency for the transactions described herein, and Escrow Holder is hereby empowered to act under this Agreement. 2. Acknowledgement Regarding Termination; Execution and Recordation of Ouitclaim Deeds. Developer and Agency acknowledge that the DDA and DA have terminated. Within five (5) days after the Effective Date, Developer shall execute and deliver to Escrow Holder quitclaim deeds substantially in the forms attached hereto and incorporated herein as Exhibit "A" (the "City Quitclaim") and Exhibit `B" (the "Agency Quitclaim"). Upon receipt by Escrow Holder of the executed City Quitclaim and Agency Quitclaim (collectively, the "Quitclaims"), Escrow Holder shall record the Quitclaims in the Official Records. Upon recordation of the Quitclaims, Escrow Holder shall provide each of Agency and Developer with conformed copies of the same. 3. Restoration of Boutique Hotel Parcel. On or before March 1, 2011, Developer shall (a) secure a demolition permit from the City and remove the sales trailer currently located on the Boutique Hotel Parcel (the "Trailer"); (b) cap in place the utility lines serving the Trailer; and (c) restore the Boutique Hotel Parcel to the condition it was in prior to the placement of the Trailer, except that the existing parking area and entry drive shall remain, and the area currently underneath the Trailer shall be regraded to a smooth surface and treated with a soil stabilizer approved by the City's Public Works Director. Developer shall coordinate with City Staff regarding the scheduling of said removal, and shall obtain the approval of the Public Works Director of the restored condition. The activities described in this paragraph are collectively referred to hereinafter as the "Restoration Activities." 4. Landscape Maintenance. Developer acknowledges that the City's municipal golf course opens on November 1, 2011. In the event that at any time prior to Developer's completion of the Restoration Activities Developer has failed to maintain the areas adjacent to the Trailer and parking area, including, without limitation, the landscaping in such areas, Agency shall be permitted to maintain such areas, and the costs incurred by Agency to perform such maintenance shall be deducted from Developer's portion of the Deposit Funds. Promptly upon any such maintenance by Agency, Agency shall provide a written invoice to Escrow Holder (each such invoice, a "Maintenance Invoice"). Release of Deposit Funds. 5.1 Escrow Holder is hereby authorized and directed to release fifty percent (50%) of the Deposit Funds to Agency upon the receipt by Escrow Holder of a fully signed copy of this Agreement. 882/015610-0084 1127752.07.1 MOM 5.2 Escrow Holder is hereby authorized and directed to release twenty-five percent (25%) of the Deposit Funds, less all amounts set forth in any Maintenance Invoices, to Developer upon Developer's satisfaction of the following requirements and conditions, which are for the benefit of Agency: (a) Escrow Holder shall have received a fully signed copy of this Agreement; (b) The Quitclaims shall have been delivered to Escrow Holder for recordation in the Official Records; (c) Developer shall have closed down the La Solana at SilverRock website. 5.3 Escrow Holder is hereby authorized and directed to release twenty-five percent (25%) of the Deposit Funds, less all amounts set forth in any Maintenance Invoices that were not deducted from the Deposit Funds released to Developer pursuant to Section 5.2, to Developer upon Developer's completion of the Restoration Activities, as determined by the Public Works Director of the City, in his reasonable discretion; provided, however, that no Deposit Funds shall be released pursuant to this Section 5.3 unless (i) Developer shall have satisfied the requirements and conditions set forth in Section 5.2 above; and (ii) Developer completes the Restoration Activities by March 1, 2011. Developer and Agency agree to execute any other and further documents necessary and required by Escrow Holder to effect the release of the Deposit Funds pursuant to this Section 5. 6. Mutual Release. As of the date all Deposit Funds have been released pursuant to the terms hereof, Agency and Developer hereby waive, release and relinquish any -and all claims, causes of action, rights and remedies each may now or hereafter have as against the other, and their affiliates, directors, officers, officials, attorneys, employees, partners, shareholders, members, representatives, and agents, whether known or unknown (A) regarding any matters affecting the Property and any condition of the Property; and (B) arising out of or with respect to the DDA or DA, including, without limitation, the termination thereof by the Agency. Agency and Developer hereby acknowledge that they have read and are familiar with the provisions of California Civil Code Section 1542 ("Section 1542"), which is set forth below: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." By initialing below, Agency and Developer hereby waive the provisions of Section 1542 solely in connection with the matters which are the subject of the foregoing waivers and releases: Agency's Initials veloper's Initials 182/015610-0084 -3- 1127752.07 at 1/10110 7. Defaults. Failure by either party to perform any action or covenant required by this Agreement within the time periods provided herein following notice and failure to cure as described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default shall give written notice of Default to the other party specifying the Default complained of. Except as otherwise expressly provided in this Agreement, the claimant shall not institute any proceeding against any other party, and the other party shall not be in Default if such party cures such default within thirty (30) days from receipt of such notice, or if the nature of such default is that it cannot reasonably be expected to be cured within such thirty (30) day period, if such party, with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30) days from receipt of such notice, and completes such cure, correction or remedy with diligence. 8. Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions otherwise set forth in this Agreement, either party may institute an action at law or equity to seek specific performance of the terms of this Agreement, or to cure, correct or remedy any Default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of Riverside, State of California. 9. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 10. Inaction Not a Waiver of Default. Any failures or delays by either party in asserting any of its rights and remedies as to any Default shall not operate as a waiver of any Default or of any such rights or remedies, or deprive either such party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 11. Applicable Law. The internal laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflict of law principles. 12. Non -Liability of Officials and Employees of the Agency. No member, official or employee of the Agency or the City shall be personally liable to the Developer, or any successor in interest, in the event of any Default or breach by the Agency or for any amount which may become due to the Developer or its successors, or on any obligations under the terms of this Agreement. 13. Attorneys' Fees. In any action between the parties to interpret, enforce, reform, modify, rescind, or otherwise in connection with any of the terms or provisions of this Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive relief, or any other relief to which it might be entitled, reasonable costs and expenses including, without limitation, litigation costs, reasonable attorneys' fees and expert witness fees. 14. Notices Demands and Communications Between the Parties. Any approval, disapproval, demand, document or other notice ("Notice") which either party may desire to give 882/015610-0084 -4_ 1127752.07 al1/10/10 to the other party under this Agreement must be in writing and may be given by any commercially acceptable means to the party to whom the Notice is directed at the address of the party as set forth below, or at any other address as that party may later designate by Notice. To Agency: Notices Delivered by U.S. Mail: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, CA 92247 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director Notices Delivered Personally or by Courier: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Assistant Executive Director With a copy to: Rutan & Tucker, LLP 611 Anton, Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To Developer: LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, California 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, California 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timm A. Hallem 8aOI561M084 _5- 1127752.07 al 1/10/10 and to: Lowe Enterprises, Inc. 11777 San Vicente Blvd., Suite 900 Los Angeles, California 90049 Attn: Corporate Counsel Phone No.: 310-820-6661 Facsimile No.: 310-820-8131 Any written notice, demand or communication shall be deemed received upon delivery if delivered by hand, including by reputable delivery service providing a receipt with the date and time of delivery, and shall be deemed received on the third day from the date it is postmarked if delivered by registered or certified mail. 15. Successors and Assigns. All of the terns, covenants and conditions of this Agreement shall be binding upon the Developer and its permitted successors and assigns. Whenever the term "Developer" is used in this Agreement, such term shall include any other permitted successors and assigns as herein provided. 16. Counterparts. This Agreement may be signed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. This Agreement is executed in two (2) originals, each of which is deemed to be an original. 17. Inte rag tion. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party's own independent investigation of any and all facts such party deems material. 18. Titles and Captions. Titles and captions are for convenience of reference only and do not define, describe or limit the scope or the intent of this Agreement or of any of its terms. Reference to section numbers are to sections in this Agreement, unless expressly stated otherwise. 19. Interpretation. As used in this Agreement, masculine, feminine or neuter gender and the singular or plural number shall each be deemed to include the others where and when the context so dictates. The word "including" shall be construed as if followed by the words "without limitation". This Agreement shall be interpreted as though prepared jointly by both parties. 20. No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, agreements, restrictions or conditions of this Agreement. 182/015610-0084 -6- 1127752.07 a11/10/10 21. Modifications. Any alteration, change or modification of or to this Agreement, in order to become effective, shall be made in writing and in each instance signed on behalf of each party. 22. Severability. If any term, provision, condition or covenant of this Agreement or its application to any party or circumstances shall be held, to any extent, invalid or unenforceable, the remainder of this Agreement, or the application of the term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the fullest extent permitted by law. 23. Time of Essence. Time is expressly made of the essence with respect to the performance by the Agency and the Developer of each and every obligation and condition of this Agreement. 24. Cooperation. Each party agrees to cooperate with the other in this transaction and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement including, but not limited to, releases or additional agreements. 25. Conflicts of Interest. No member, official or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his personal interests or the interests of any corporation, partnership or association in which he is directly or indirectly interested. 882/015610-0084 _7_ 1127752.07 a11/10/10 IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement as of the date set forth above. ATTEST: Agency Secretary I (�J i APPROVED AS TO FORM: R7;N�& T7 LL j—"_ M.'Katherine Jenson Agency Counsel AGENCY: LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and poli Executive Director Developer: LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: 88VOI5610-0084 _8_ 1127752.07 al 1110/10 EXHIBIT "A" FORM OF CITY QUITCLAIM DEED [See following document] 882/0 156 10-0084 I127752.07 all/10/10 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, California 92247 Attn: Executive Director [Free Recording Requested Government Code § 61031 QUITCLAIM DEED (Development Agreement) FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, LDD SILVERROCK, LLC, a California limited liability company, do(es) hereby remise, release and forever quitclaim to CITY OF LA QUINTA, a California municipal corporation and charter city, all of its right, title, and interest in and to that certain Development Agreement dated December 6, 2006, and recorded in the Official Records of Riverside County on August 3, 2007, as Instrument No. 2007-0502623. LDD SILVERROCK, LLC, a Delaware limited liability company Its: 892/015610-0084 1127752.07 aI Vl0/10 State of California ) County of ) On , before me, Notary Public, (here insert name and title of the officer) personally appeared who 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 persons) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/0156104084 _2_ 1127752 07 al1/10/10 CERTIFICATE OF ACCEPTANCE CITY OF LA QUINTA THIS IS TO CERTIFY that the interest in real property conveyed by the foregoing Quitclaim Deed dated , 2010, from LDD SILVERROCK, LLC, a California limited liability company, to the CITY OF LA QUINTA, a California municipal corporation and charter city (the "City"), is hereby accepted by the undersigned City Manager of the City on behalf of the City, pursuant to authority conferred by Resolution No. 2002-186 of the City Council, adopted on June 18, 2002, and the City consents to recordation thereof by its duly authorized officer. Date: State of California ) County of ) On 2010 CITY OF LA QUINTA Thomas P. Genovese, City Manager before me, , Notary Public, (here insert name and title of the officer) personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/015610-0084 1127752.07 a11/10/10 EXHIBIT "B" FORM OF AGENCY QUITCLAIM DEED 8821015610-0084 1127752 07 a11/10/10 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, California 92247 Attn: Executive Director [Free Recording Requested Government Code § 6103] QUITCLAIM DEED (Disposition and Development Agreement) FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, LDD SILVERROCK, LLC, a California limited liability company ("Developer"), do(es) hereby remise, release and forever quitclaim to LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, all of its right, title, and interest in and to (i) that certain Disposition and Development Agreement entered into by and between the Agency and Developer on or about December 19, 2006, which was subsequently amended on four (4) occasions; and (ii) the real property in the City of La Quinta, County of San Riverside, State of California, described in Schedule 1 attached hereto and incorporated herein by reference. LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: 882/015610-0084 1127752.07 all / ] 0/ 10 State of California ) County of ) On , before me, Notary Public, (here insert name and tide of the officer) personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/015610-0084 _2_ I127752n7 M 1/10/10 EXHIBIT "A" TO QUITCLAIM DEED LEGAL DESCRIPTION OF PROPERTY ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF LA QUINTA, DESCRIBED AS FOLLOWS: 882/015610-OOS4 _3 _ 1127752.07 aII/10/10 CERTIFICATE OF ACCEPTANCE LA QUINTA REDEVELOPMENT AGENCY THIS IS TO CERTIFY that the interest in real property and other interests conveyed by the foregoing Quitclaim Deed dated , 2010, from LDD SILVERROCK, LLC, a California limited liability company, to the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), is hereby accepted by the undersigned Executive Director of the Agency on behalf of the Agency, pursuant to authority conferred by Resolution No. 2002-12 of the Agency Board of Directors, adopted on June 18, 2002, and the Agency consents to recordation thereof by its duly authorized officer. Date: State of California ) County of ) 2010 LA QUINTA REDEVELOPMENT AGENCY Thomas P. Genovese, Executive Director On before me, , Notary Public, (here insert name and title of the officer) personally appeared who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) 882/015610-0084 _4_ 1127752 07 z l t/ 10/i 0 INDEMNITY AND HOLD HARMLESS AGREEMENT This Indemnity and Hold Harmless Agreement ("Agreement") is hereby entered into by and between the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), and LDD SILVERROCK, LLC, a Delaware limited liability company ("LDD"), as of �gmIreLq 1 rb 2011. RECITALS A. The Agency owns real property commonly known as the SilverRock Resort (the "Resort Property" Y. B. LDD previously entered into a series of agreements with the Agency, including a Disposition and Development Agreement, a Development Agreement, and an Early Entry Agreement, pursuant to which the parties' contemplated that LDD would buy portions of the Resort Property from the Agency and develop thereon a commercial project. C. Pursuant to the Early Entry Agreement, the Agency permitted LDD to locate certain trailers (the "Trailers") on a portion of the Resort Property (the "Trailer Parcel"). The Trailer Parcel is legally described in Exhibit No. 1, and the location of the Trailers is depicted on Exhibit No. 2, both of which exhibits are attached hereto and incorporated herein by this reference. The Early Entry Agreement is no longer in effect. D. The Agency and LDD have negotiated an Acknowledgement of Termination and Joint Escrow Instructions Regarding Release of Funds (the "Termination Agreement"), by which LDD has agreed to remove the Trailers from the Trailer Parcel and perform certain restoration activities on the Trailer Parcel by March 1, 2011. E. LDD recently transferred ownership of the Trailers to Friends of the Desert Mountains, a California nonprofit public benefit corporation ("Friends"). Friends desires to use, and to allow the Desert Classic Charities, dba Bob Hope Classic, a California nonprofit public benefit corporation (the "Bob Hope Entity"), to use, the Trailers during the Bob Hope Classic golf tournament, which takes place during January 16, 2011 — January 25, 2011 (the "Golf Tournament Period"). The Agency has negotiated with Friends an Indemnity and Hold Harmless Agreement that would allow such uses, in accordance with certain terms and conditions set forth therein, provided that LDD execute this Agreement. NOW, THEREFORE, in consideration of the performance by the parties of the mutual promises, covenants, and conditions herein contained, the parties agree as follows: 882,015610-0094 _ 1 1144960.01 a01/11/II 1. Recitals Incorporated by Reference. The foregoing Recitals are true and correct and are hereby incorporated herein by this reference and are expressly made a part of this Agreement. 2. Indemnification 2.1 LDD shall defend, indemnify and hold harmless the Agency and the City and their respective officers, members, officials, employees, representatives, and agents (collectively, "Indemnified Parties") from and against any and all claims, causes of action, obligations, losses, liabilities, judgments, or damages, including reasonable attorneys' fees and costs of litigation (collectively "Claims") arising out of and/or in any way relating to the use, occupancy, and/or removal of the Trailers by LDD or by LDD's employees, officers, representatives, or agents (collectively, the "LDD Personnel"), excepting only those claims, actions, obligations, losses, liabilities, judgments, or damages arising out of the sole negligence, active negligence or willful misconduct of the Indemnified Parties. 2.2 In the event the Indemnified Parties or any of them are made a party to any action, lawsuit, or other adversarial proceeding alleging negligent or wrongful conduct on the part of LDD or any of the LDD Personnel, LDD shall provide a defense to the Indemnified Parties, with legal counsel selected by the Agency, or at the Agency's option, reimburse the Indemnified Parties on an ongoing monthly basis their costs of defense, including reasonable attorneys' fees, incurred in defense of such Claims. 2.3 In addition, LDD shall be obligated to promptly pay any final judgment or portion thereof rendered against the Indemnified Parties. 3. Insurance. 3.1 Commencing on the effective date of the Termination Agreement and continuing until the date LDD has removed the Trailers from the Trailer Parcel and completed the "Restoration Activities" described in the Termination Agreement, LDD shall maintain insurance in conformance with the requirements set forth in this Section 3. LDD may use existing coverage to comply with these requirements; provided, however, that if LDD's existing coverage does not meet the requirements set forth in this Section 3, LDD shall have its existing coverage amended in order to comply with said requirements. LDD acknowledges that the insurance coverage and policy limits set forth in this Section 3 constitute the minimum amount of coverage required. Any insurance proceeds in excess of the limits and coverage required by this Agreement and which is applicable to a given loss, will be available to Agency in the event of a loss covered by this Agreement. LDD shall provide the following types and amounts of insurance 8821015610-0094 _2_ 1144960.01 a01/11/11 Commercial General Liability Insurance using Insurance Services Office "Commercial General Liability" policy form CG 00 01, with an edition date prior to 2004, or the equivalent. Coverage for an additional insured shall not be limited to its vicarious liability. Defense costs must be paid in addition to limits. Limits shall be no less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000 general aggregate. 3.2 LDD shall provide evidence of the insurance required herein, satisfactory to the Agency, consisting of. (a) certificates of insurance evidencing the coverage required and, (b) an additional insured endorsement to LDD's general liability policies using ISO Form CG 20 10 with an edition date prior to 1988, which form shall include coverage for completed operations. The additional insured endorsements shall expressly name the Agency and the City and their respective officers, members, officials, employees, representatives, and agents as additional insureds on the policies as to commercial general liability bodily injury and property damage coverages, and completed operations coverages, with respect to liabilities arising out of LDD's activities under this Agreement and/or under the Termination Agreement. 3.3 Proof of compliance with these insurance requirements, consisting of endorsements and certificates of insurance, shall be delivered to Agency no later than the date of execution of this Agreement by LDD, and shall be a condition to the effectiveness of this Agreement. 4. Miscellaneous. 4.1 Each signatory hereto warrants to the other party that it has authority to sign on behalf of the party for whom it purports to sign. 4.2 In the event any party hereto brings suit to enforce the terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall pay all reasonable costs and expenses incurred by the other party in such suit, including, without limitation, court costs, attorneys' fees, and expert witness fees. 4.3 This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior discussions, negotiations, understandings or agreements relating thereto. 4.4 This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. 4.5 The Superior Court of the State of California in the County of Riverside shall have the exclusive jurisdiction of any litigation between the parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the internal laws of the State of California, without regard to conflict of law principles. Service of process on Agency shall be made in the manner required by law for service on a public entity. Service of process on LDD shall be made by personal service upon any officer of 882/015610-0084 _3_ 1144960.01 a01/11/11 Friends, whether made within or outside the State of California, or in such other manner as may be provided by law. 4.6 No officer, official, member, employee,, agent, or representative of Agency shall be personally liable to Friends, or any successor or assign of same, in the event of any default or breach by Agency, or for any amount which may become due to LDD, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement. 4.7 LDD covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. 4.8 All notices required to be delivered under this Agreement or under applicable law shall be delivered by one of the following means: (a) personal delivery; (b) delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by Federal Express or a comparable overnight courier service that provides a receipt showing date and time of delivery; or (d) delivery by facsimile provided the sender receives confirmation the facsimile was received. Notices personally delivered or delivered by a courier service shall be effective upon receipt. Notices delivered by United States mail shall be effective at 5:00 p.m. on the second business day following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that any faxed notices which are transmitted at any time other than between 8:00 a.m. to 5:00 p.m. Monday through Friday (excluding legal holidays) shall be deemed transmitted as of the next business day. Notices shall be delivered to the following addresses: To Agency: Notices Delivered by U.S. Mail: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, CA 92247 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Executive Director Notices Delivered Personally or by Courier: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, California 92253 Phone No.: 760-777-7031 Facsimile No.: 760-777-7101 Attention: Executive Director 882/015610-00B4 -4- 1144960.01 a01/I Ill I With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 P.O. Box 1950 Costa Mesa, California 92628 Phone No.: 714-641-5100 Facsimile No.: 714-546-9035 Attention: M. Katherine Jenson, Esq. To LDD LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, CA 92210 Phone No.: 760-674-2200 Facsimile No.: 760-779-1469 Attention: Theodore R. Lennon, Jr. With a copy to: Manatt, Phelps & Phillips, LLP 11355 W. Olympic Blvd. Los Angeles, CA 90064 Phone No.: 310-312-4217 Facsimile No.: 310-312-4224 Attention: Timi A. Hallem Changes in the address to be used for receipt of notices shall be effected in accordance with this Section 6.8. 4.9 Time is of the essence in the performance of this Agreement. [End of Agreement - signatures on next page] 8921015610-0084 1144960.01 a01/11/11 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above -written. "LDD" LDD SILVERROCK, LLC, a Delaware limited liability company!- rl nftby By: Its: "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic 0 APPROVED AS TO FORM: RUTAN & TUCKER, LLP e Kath rive ZJens`o&encyounsel 8821015610-0084 _6- 1144960.01 a01/1IdI Gc.' Tho as . Genovese ;y Executive Director IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date first above -written. "LDD" LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: GSI�CA1+ "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic M APPROVED AS TO FORM: RUTAN & TUCKER, LLP 4a4thrincJe_nso , A ency Counsel 887(015610• &4 -6- 1144960.01 001/11111 /1 Thol as .Genovese / :y Executive Director EXHIBIT NO. 1 LEGAL DESCRIPTION OF PARCEL 882/015610A084 1144960.01 s01111/11 LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST Q(JART'I3R OF SECTION 5 AND THE NORTH WEST QUARTL'R OF THE NORTH W'RST QUARTER OF SECTION 8, 'TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SFCT[ON 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINN[NG; THENCE NORTH 41057'54" WEST 674.79 FELT; THENCE NORTH 88027'35" WFST 244.20 FEET; THENCE NORTH 7'47' 15" WEST 289.62 FEET'; 'rl [ENCE NORTH 83"26'27 EAST 398.98 FEET; THENCE SOUTH 29'58'01" FAST 952.82 FEET; 'THENCE SOUTH 52039'03" EAST 485,41 FEET; THFNCE SOUTH 57' 16' I G' EAST 463.15 FEET; THENCE SOUTH 30'58'20" WEST 183,52 Fr-,liT TO THE BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BL?ARS NORTH 10'57'45" WEST; 'THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A C:ENCRAI. ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A I18.00 FEE'C RADIUS CURVE. HAVING A RADIAL, TO WHICH BEARS SOUTH 21049'41" WEST; THENCE WESTERLY Al.ONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLF. OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40'20'08" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FELT RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGFI A CENTRAL ANGLE OP 30032'16" A DISTANCE OF 45.84 FEET; THENCE, SOUTH 28000'41" FAST 18.67 FFE'r; THENCE SOUTH 6[059'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; 'I'HEN<;F NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH. A CENTRAL. ANGLE OF 57000'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.94 FEET RADIUS CURVE CONCAVE NORTHEASTERLY }LAVING A RADIAL`I'O WIIICH BEARS NORTH 7.0"04'07" EAST; THENCE NORTH WESTERLY ALONG TTIF, ARC OF SAID CURVE THROUGH A CENTRAL, ANGLE OI; 36031'16" A DISTANCE OF 145,23 FEET; THF..NCI NORTH 33024'37" WEST 99.07 FEET; THENCE NORTH 66'23'28" EAST 120.28 FEET; THENCE. NORTH 23"38'13" WEST 532.29 FEET; THENCE NORTH 41 "57'54" WEST 149.34 FEET T'O THE TRUE POINT OF BEG INNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART IIEREOF. CONTAINING: 600,614 SQ. FT. 13.79 ACRES � � r � L: -Lc✓ II II hIIIII IIIII � 7I III�II IIII� III II I'I I�I'I IIII III 02BB0 40 Of O57 882/015610-0084 1144960.01 .01111/11 I LOT 19 I I � i ' I ROAD L07' A MM F. YOUNG EI 9-30-08 //fj�� Nw 4RR3 Q• SCALE.• 1"-300' -JOHN F. YOUI OATS REVISED TENTATIVE 1s-�� CONSTRUCTION TESTING & ENGINEERING, INC. FIANXIYf •CIVIL FtlOIXFERINO-LANO SRRVFVIXS'SFORCNXICAL I441 YOM U ROAD, A1— 11, fSCONDIDO CA. 12O2 . PH: 1111) ilO-S16 PARCEL FOR DiAP 33367 LOT 1 1'=300' E106 06 PR; 8821015610-0084 -9_ 1144960.01 R0l/11/11 EXHIBIT NO. 2 DEPICTION OF LOCATION OF TRAILERS 8821015610-0084 1144960.01 001/11/11 TO: La Quints Redevelopment Agency ("Agency") DATE: January 10, 2008 REVISED DATE: January 31, 2008 REQUEST NO: 1(One) Revised "DEVELOPER': LDD SILVERROCK, LLC PROJECT: SILVERROCK RESORT Pursuant to that certain Disposition and Development Agreement dated as of December 19, 2006 ("the Agreement") between Developer and Agency, Developer hereby requests that Agency approve a disbursement of a portion of the Deposit Payments previously deposited into Escrow in accordance with Section 208.1 of the Agreement in the amount of $53,887.12 (Fifty-three thousand, eight hundred eighty- seven dollars and twelve cents) (a "Disbursement Amount"). The Disbursement Amount is requested to pay for the costs described on the attached page and identified on invoices, payment receipts, and other documentation evidencing such expenditures. Developer hereby certifies that the amounts shown on the attached schedule and accompanying documentation represent "Eligible Costs" (as that term is defined in Section 208.2 of the Agreement). SUBMITTED BY: REVIEWED & APPROVED BY: _ ; — .ice Signature & it e _ 1 a rat �►��L,.� — V � Printed Name & Title 2_ q—o Date /Signature & Title Thuw.as P �e,,u�ese,E�ecu�},ve Printed Name & Title D� ie coi Date LA QUINTA REDEVELOPMENT AGENCY - SILVER ROCK 1SR21 DISBURSEMENT SCHEDULE 1/10/2008 Draw 1 Description of Deposit Payment from Maximum Amounts Amount Remaining Work For Which Which Disbursement Disbursement Previously Requested this Balance Disbursement Payment is Requested Amount Disbursed Disbursement Payment is Requested: Phase of Development Phase 2: Resort Hotel and Lake Casitas; Resort Retail Village; Golf Casitas. Initial Deposit Payment $ 300,000.00 $ - $ 53,887.12 $ 246,112.88 1 Total $500,000.00 1 Ranch House $25,000.00 2 $300 06.00; S:\LDD-SV\Draws-LRCF\SR2\La Qtagl®Redevelopment Disburse Schedule 010708 draw 1.x1s SilverRock 2 Invoice Detail - Draw #1 Item Invoice Line item No. Description and Vendor Amount Total 5 Reimbursables LDD Desert Development 330.62 330.62 10 Design and Engineering Gensler' 15,000.00 Gensler 427.11 Gensler 12,000.00 Gensler 8,743.22 36,170.33 45 General & Administrative LDD Desert Development 2,064.03 LDD SilverRock Manager 3,338.66 LDD SilverRock Manager 3,380.85 LDD Desert Development 3,037.41 LDD SilverRock Manager 2,452.89 LDD Desert Development 1,441.95 LDD Services 2,001.00 LDD Services 11.48 LDD Services 18.16 17,746.43 Total 54,247.38 54,247.38 12/31/07 Job Cost Report Amount 54,247.38 LESS: Amounts not allowable per agreement set 208.23 5 Reimbusables (330A2) 45 G&A (11.48) , 45 G&A (18.16) Total amount not allowable (360.26) TOTAL REQUEST AMOUNT 53,887.12 �, �A j LACE SA2 LLC JC Entries by Job 01/10/2006 Page 2 180-50 Design _ Last Update: 11/15/2007 Transaction types included: Costs Tian Transaction Acctg Cat Date Type Description Units Amount Src Batch Date DE91GN,ENGINEEAI[4GLCO[i3ULTANTB 017-120 Consultant - Other 0 10/15/2007 AP cost Prof. Service to 9/29/07 15,000.00 AP 12 11/30/2007 0 10/15/2007 AP cost Prof Service to 9/29/07 427.11 AP 12 11/3C/2007 0 09/14/2007 AP cost Prof. Services to 9/1/07 12,ODO.00 AP 13 12/13/2007 0 11/15/2007 AP cost Consulting to 10/27/07 8,743.22 AP 13 12/13/2007 Consultant - Other Total 36,170.33" Design Total 36,170.33- LRCF SR2 LLC 630-00 PROJECT MANAGEMENT Tran Transaction Cat Date Type PROJECT MANAGEMENT 091-155 Development Staff 0 10/29/2007 AP cost 0 11/16/2007 AP cast 0 12/20/2007 AP Cost 0 12/25/20D7 AP cost 0 12/25/2CO7 AP cost 0 12/20/2007 AP cost 0 12/25/2007 AP cost 0 01/02/2008 AP cost 091-250 Office Supplies 0 12/01/2007 AP cost 0 01/03/2008 AP cost 091-260 Payroll Benefits 0 10/29/2007 AP cost 0 11/16/2001 AP cost 0 12/20/2007 AP cost 0 12/25/2007 AP cost 0 12/20/2007 AP cost 0 12/25/2007 AP cost 091-270 Payroll Taxes 0 10/29/2001 AP cost 0 11/16/2D07 AP cost 0 12/20/2007 AP cost O 12/20/2007 AP cost 0 12/25/2007 AP cost JC 6ntrias by Job Last Update: 02/03/2008 Description 01/10/2000 Page 3 Transaction types included: Costs Acctg Units Amount Srn Batch Date wages and Burden 1D/07 Wages a Burden 9/07 11/07 Wages 6 Burden 12/07 Wages 6 Burden 1210.1 Wages 6 Burden 11/07 Wages 6 Burden 12/07 Wages 6 Burden Allocation -Dec 2007 Development Staff Total Reimburse/office Supplies Reimburse-Offc Supplies Office Supplles.Total Wages and Burden 10107 Wages 6 Burden 9/07 11/07 Wages 6 Burden 12/07 Wages 6 Burden 11/07 Wages i Burden 12107 Wages a Burden Payroll Benefits Total wages and Burden 10/07 Wages 6 Burden 9/07 11/07 Wages 6 Burden 11/07 Wages a'Burden 12/07 Wages 6 Burden Payroll Taxes Total PROJECT M OUMMT Total Report Total 2,887.22 AP 8 1,926.02 AP 12 1,676.39 AP 19 1,168.80 AP 19 41.96 AP 19 2,621.52 AP 19 2,654.65 AP 19 2,001.00 AP 20 14,977.56` 11.48 AP 14 18.16 AP 20 29.64- 31.38 AP B 431.42 AP 12 123.33 AP 19 231.19 AP 19 587.22 AP 19 594.64 AP 19 2,205.16- 112.81 AP B 95.45 AP 12 64.31 AP 19 129.92 AP 19 131.56 AP 19 534.05- 17,746.43+ 54,247.38- 11/20/2DO7 11/3C/2007 12/31/2007 12/31/2003 12/31/2007 12/31/2007 12/31/2007 12/31/2001 12/26/200'1 12/31/2007 11/20/2001 11/30/2001 12/31/200-1 12/31/2007 12/31/2007 12/31/2007 11/20/2007 11/30/2007 12/31/2007 12/31/2001 12/31/2DO7 !' �'vi rn • � �I r w I N V O I C E Gensler October 15, 2007 Project No: 05.7060.000 Invoice No: 137651 Tom Devlin LDD Desert Development, Inc. 74-001 Reserve Drive Indian Wells, CA 92210 United States Silver Rock Resort La Quinta, CA Professional Services through September 29. 2007 Fee Percent Previous Current Billing Phase Fee Complete Earned Billing Billing Work Authorization No. 1 50,000.00 54.00 27,000.00 12,000.00 15,000.00 Total Fee 50,000.00 27.000.00 12,000.00 15,000.00 C, Total Fee 15,000.00 C) (D fa\-'� - I Zp I SIUOO Total This Invoice $15,000.00 Outstanding Invoices Number . Date Balance 133176 9/14/07 12,000.00 Total 12,000.00 Total Now Due $27,000.00 ENTERED No i V; 2007 f) 19ir Ce6M eA � - _ tti_a.g -oi To remit by rkarank #d,.,ftr - Acccunt Name: M. Arthur Gensler, Jr. h Associates, Inc. Account Number: 14996-01877 Gensler Los Angeles ACH Routing Y: 121000358 Federal Wire ABA C: 0260-0959-3 To nmit by chnk: File 57109 Bank Information: Bank of America/345 Montgomery Sneey San Francisco, California, 94104 Los Angeles, California 90074-7109 (Please include invoice numbers on electronic fonds m of a.) Tel: 310.449.56o0 Faa: 310-449.5850 Pan due inaaim are rw j(ect to a reraice charge in accordance with the tmnt of ehe antrao.. I N V O I C E Covirrn H 4'1 Co Gensler Tom Devlin LDD Desert Development, Inc. 74-001 Reserve Drive Indian Wells, CA 92210 United States Silver Rock Resort M - I-eA-F'r La Quinta, CA Professional Services through September 29, 2007 Reimbursable Expenses Reproduction Travel Total Relmbursables ENTERED U ui: 1TG-SO O1-i- �zo October 15, 2007 Project No: 05.7060.000 Invoice No: 137552 Receiver, 1DEC 0 3 20071 386.63 40.48 427.11 427.11 Total This Invoice • $427.11 CA4+L► 42--V \ 11 -28 -0'7 r To .emit by rkrt ,,4,. Account Name: M. Arthur Gensler, Jr. Be Assodams, Inc. Acwunt Number: 14996-01877 ACH Roudng Y: 121000358 Fed.lWira ABA#: 0260-0959-3 Ta nmit by th"i Bank Information: Bank ofAmcrical345 Montgomery Street, San Fcancisca, California; 94104 (Pleere include Invoim northers on electronic funds tranrfer.) Part due inwim are mbjrct ro a semi" tbarge in aceordanre with the terror oftbe rantratt Gensler Los Angeles File 57109 Los Angeles, California 90074-7109 Tel: 310.449-5600 Fax: 310.449.5850 I N V 0 I C E Tom Deviln LDD Desert Development, Inc. 74-001 Reserve Drive Indian Wells, CA 9221 United States Sliver Rock Le Quinle, ( Fee -ova Billing Phase Work AulhortwOon No. 1 Total Fee �-� cw(VAiz\Q�J ENTERED DEC; .I 200 September 14. 2007 Project No: 06.7060.000 Invoice No: 133176 Percent Fee Complete 60.000.00 24.00 50,000.00 Total Fee Gensler 1 Previous Current Famed Billing Billing 12,000.00 12,000.00 12,000.00 0.00 12,000.00 12,000.00 Total This Invoice E72,000.00 C iL Igo-5(� f 0(7-�� )., FAID Ts.mrlr fjAw w—k%w4 ossor Account liana M. ANurGmJv. Jr. do Augel"M Inc. Account Nuzobw 14996.01577 ACH Boudog 01 151000558 Faded Win ABA 9: 0366-0959.5 Ti m hrby awk. Boni lnfawatbm Beni ofAmedd345 bfwtgomeySnmt. Sm Fnwkm, Califwuia, 94104 (Flea,a ioduda lneake moubw on demenla Amda ao dw.) Pm Awinwlm m w*a mra kwrboW 1r amnimorodrb& oanaafdre tm owm prWr Lm Angela F& 37109 IA,Aogalo Califwdo 90074.7r09 Tar: 310.449.16W Am 310.449.5850 I N V O I C E Tom Devlin LDD Desert Development, Inc. 74-001 Reserve Drive Indian Wells, CA 92210 United States Silver Rock Resort La Quints, CA Fee Billing Phase Work Authorization No. 1 Total Fee Reimbursable Expenses Reproduction Meals November 15, 2007 Project No: 06.7060.000 Invoice No: 142186 �ZLF 151? n- Percent Fee Complete 501000.00 70.00 50,000.00 Total Relmbursables Outstanding Invoices Number 133176 137551 137552 Total Total Fee Date Balance 9/14/07 12,000.00 10/16107 15,000.00 10/15/07 427.1.1 27,427.11 e , � DEC ' PHIS T. rrnthJy rlerarcakfartb rratfir. _ ___� Aecom, Nunn. M. Ankm Gcmkp]I, O: AuucYm, Inc .. ... Account N,unbrr. 14996-01877 ACH Rou ft r: 121000558 Federal Wire ABA k 0260-0939.3 Bank lnfotroadon: Bank ofAmericaf345 Montgomery Succt. Sm Prancieco, California. 94104 (Plearc kept le imoicc numben on clecvnnic fundr aransim) Gensler Previous Current Earned Billing Billing 35.000.00 27.000.00 8,000.00 35,000.00 27.000.00 8,000.00 ?,000.00 684.40 58.82 / 1� 743.22 743.22 / 11 Total This Invoice 43.22 Ib0 5/ Total Now Due $36,170.33 T. ".dr y rMd: EN T C n E D Pot doe inmknitm mowt re srmnu ebarae in umrdaue mlrb tM rrmuoftbe onvecr. DEC I Z007 ae saner Ins Angeles Poe grog Loa Anples, California 90074-7109 Tel: 310.449.5600 Fes: 3ro.449,185o LDD Dr_,SClrl Devolopilivill, Inc ,4 )1,! GEC 2 7 2007 M.,Taw I WR 1.342 qp; I �J • i..RCF SPP. 11C PO BOX 354489 PALM COAS'l. FL 32135-4489 Invoice Date 12�201200r I - DD DD wages to LRCl­ SR2, LLC Nov'07 401. 14,, 2 LDD DD i axes to 1-flCl- SR2. 1-1-C Nov'07 LDD DD UnLlits 401 K to ERGF SR2. LLC Nov'01' D.15 4 LDD DD Puiden to !-PC',!- SR'll, IG Nov'N )fl 5 LDD DE) 011ice to t. PV SR2. LLC Nov *0 r 52 i 5 201 -terms JMMEDJA I E For further information contact 760-674-2254 -- C,o ENTERED DEC 3 1 20V INVOICE TOTAL: 2,064.03 LDD SilvcrRock Manager. Inc. Invoice L't wi, iF Date 12/2Oi2OO7 -�C 2 '11 307 customer No.�r 10475 10690 • LR(> SR2, LU', PO BOX 354489 PALM COAST'. 1-1- 32135-4489 SRM Wages - Billed to LRC!- SR? Nov'07 S2,621 .52 SRM Burden 13jlht(.i to LR01- SR2 Nov'O/ A5.14.16 SRM I axes Billed to LRGI- SR2 Nov'O'/' 4 SRM 401 K 6enelit- Bil'ed 19 LP,.CF SR2 Nov'01 $43.06 Perms :IMMEDIATE. INVOICE TOTAL: 3,338.66 For (11111,er information uihjta,:t 760-674�2254 165 D ENTERED DEC 3 1 ZQ07 Lo LDD SilverRock Manager, Inc. Invoice 4-00, Reserve [mve Indian Wells, CA 9221 Date 12j2512007 Invoice Number I Customer No. - 10515 Customer PO Number 10890 LRCF SR2. LLC PO BOX 3544 89 PACM COASI, FL 32135-4489 I .SRM Wages - Billed to LRCF SR2 Dec'O? 2 SRM % Burden -Billed to LRCF SR2 Decoy 3 SRM I -axes - Billed to LRCF S82 Dec'07 4 SRM 401 K Benefit- Billed to LRCF S82 Dec '0/ Terms :IMMEDIATE For further information contact 760-674-2254 ENTERED ixu, 3 ! 2007 1;#7 $131.56 $43,60/ i 1"T L INVOICE TOTAL: 3138p,85 R E. el14 I V Z-- D DEC 2 7 2007 'T'0z", J� 'Ski mv I�", T - MERITS AUI,,t � m� 1.amo I Ll tNIIRt, v LOU (X.I IV v 11 I I 1W I 011.7, MV. zi S.. "0 KIM VIM LY:.NL MV I.—j 11k, I c"Wo'- In, 21. ND 01, f c fti.- F C Io 1401 Chi of lf,,­ P, .0 N." C., tj Iia:li, M, % —F ICIJ 41- �-rvrs-✓C � `(d/� LDD Desert Development, Inc. 74-001 Reserve Drive Indian Wells, CA 92210. . ,10890._.., LRCF SR2, LLC PO BOX 354489 PALM COAST, FL 32135-4489 ' Invoice Date: 10/29/2007 1 SRM Wages - Billed to LRCF SR2 $2,276.21 2 SRM Taxes - Billed to LRCF SR2 $112.81 3 SRM 401 K Benefit- Billed to LRCF SR2 $37.38 4 SRM % Burden -Billed to LRCF SR2 $611.01 Terms IMMEDIATE For further information contact 760-674-2254 INVOICE TOTAL: 3,037.41 ENTERED NOV 2 0 2007 0A 5 oar -�y (� L '.10 dO DaL � ,yLO .Y '.MR wAGEVERNEFITS ALLOC - DESCRIPTION: Account lams _ ACCOUNTO DEBIT AMOUNT CREDIT AMOUNT Allocvtlan ofWv0ea WzB¢ T.. on Wv0u 401K Mntch Auto All., vice W,. T.. on WOB¢ e01K Mmcb Aom Allowvoce ] NOTMSLRTLJNRS LRCP SRI�LLC LRCF SRI, LLC LRCFSa1,LLC LRLT5RI, LLC Mpm Fee Income IRCFSa1,I1C LRCF SR2,I LRCF SR3, LLC LRCF SR].LLC MM Fee Inwme ONTBISME Ill]-000.1100-0Oa0006W00.0000 1117-000-1211"00-000"00"WO III]-000.I1D0.000.0000-IOB0.0W0 411]-0OD-I20"OH MO"00"000 011740D-IIIY000-0T9-0OULL0000 01 i]-006-]100-000-0W6W00-0000 III7400-I31)0-0604000-W00-0000 II IT-000-I306000-0000.0000-0000 Ill]-0061y00-000-0ODbOD00-0000 4117-000. 14144043114-00004000 J]810.06 1 a16.00 3I$4.09 1758.0J 501.6R 939.70 2.21591 It= 3739 6030 102U100110', 17 AM JE Seotl(IO]1RCF SRI 2.1, SRM An« Out Compmy I E\F6ni9 acd Bill and Pay Bill and Pay ,.pp S11verRock Mana9ei w[ ll FOST GDATE SRMA IQt3440071057 AM waAlbwi 2007 LRCFSR12.x1[SRM%AD -SCION: Account name ACCOUNT#F DEBIT AMOUNT CREDIT AMOUNT PR Y. far Bmtlen PR %for office ReanstlR,c(Svrnoak) =1 Fe RaDlp qll)-ODD-1300.000.0000.0000-0000 4117-000.4142-000d 794000-0000 4117-000-1200.0p0000D-0D00-0000 411]-000-/191-W0I379-OD0DA000 9313 9,S2233 O,Op eM B111 by Invoice Aeeowu Raeiv[bk M IFee Coast/Dev 0.00 PR%for Burden PR%for Office LRCFM,LLC 410-0041300AOP0000-D000.0000 4117-N"141.00438440D-0000 tll]-000.1T00-000.0D00-0D00.W00 4117-0 A!42-000-0384-0WMWD 613.01 50 51 611.01 52 53 D.00 Irecl Bill by Invoice Acm uRecei,oble Mgmt Fee CansUDevlp Aceow0 Reeeinble Mgml FccCwsUDalp 0.00 PRY for Bur4en PR'A ror Office 41174n0.1200-0110.-0000.0000.0000 4J17.D00.1200-000.0000.0000-0000 0.00 50 51 0.00 52 53 000 Direct Bill by Invoice Aecwnu Rexinble Mgml Fa CwsUDcvlp Acmmiu Remivoble M6m1 Fee consV Ip t+i!}i � ;"r 0.00 - '::._. ...✓t: 'r Y' L . ;x,: r;l a „M-;:: ., t .1A '.: r: n y;- p PR'n. mr Bwaen PR %for OfficeAreounk .:. .a;i:<, :k". val4i 410-0Da120a9DD-aoD0-000n.00DD 4117-000-1100-000-0D00-0000.0000 iai '�S!-_"vLly. ,+. ...•.uv_ 0.00 sa 51 0.00 52 53 0.00 _ Direct Bill by Invoice e,.y..n�. ,. .,._., ..,, ,.. .,,. .,.,: ,.. m A[mas Rafram er MRM Fee C.WDevlp Receivable Mgmr Fee Co wU.Ip arcv:?C1cX;-..S:VEFP.tFur. n00 .,,:v.. 'bi:xn d ..!d:,: .. U33 )4 10,13334 vonwae 0.00 CCDD SilverRock Manager, Inc. 74-001 Reserve Drive Indian Wells, CA 92210 SILVERKOCK 10374 10890 RECEIVEY_. __.. • ERCF SR2, EEC PO BOX 354489 non nnn�i Invoice Date : 11116/2007 • $1,926.02 ✓ 1 SRs -M WageBilled to ERCF SR2 V $95.45-? T 2 SRM Taxes - Billed to ERCF SR2 $31.63 t7 ?� 3 SRM 401 K Benefit- Billed to ERCF SR2 $39979 i Q�, 4 SRM % Burden -Billed to ERCF SR2 terms :IMMEDIATE INVOICE TOTAL_. 2,452.89 - - For further information contact 760-674-2254 TAIF- I-50 - DO 6nj1- Zlcb L LM) -7 C�. H31.Hz. ENTERED 11-Zg o-7 NOV i 2iICl S uJMQODI 1205 FM 48ANY - Ian JE§a1/J(11R]CF SRI MIS SRM Alloc Om Myiq FOSTMG DATE 1KCMM tt3i DESCRIPTION: 1lico0099e011 DESCRIPTION: Account name ACCOUNT# DEBIT AMOUNT CREDIT AMOUNT AllAulle.11W.I. W'. Taum Wage, 401KMn10 Aub Allowance WaSea T... We,. 401KMn6 AuIOAllownue DONOT LVS2RTLJNSS LRCF SM. LLC LRCF SRI, LI.0 LRCFSRI,LLC LRCF SRL LLC Mpu Fee IOec uc LRCFSR2.LLC LRCF SITS, LW LRCF SM, LRCF SITS, LW Mpm Fee 7mcam ONTXJSSIDS OIIT-000.1500-00LL0000-0000-0000 4117400.1000.000.0M0-00004000 411]-000.1500-000.00004n00-0OOD qll]-000.1100-000AWb0000-0000 4I1]400.41424)00�0] 0000.0000 411]-000.1200.0009000.00000000 g1IT-000-1200-000-0000.D000-0000 4117-000.1200.000-0000.W00-0W0 4117.WOAU4 00&3B4-OW04000 j - � ✓/ / 14A76.00 SOai] 941.95 1,17S00 % s 0153 51.02 40,240.86 40,140.86 Veneiux ON Expense Acct Bill and Bill and Pay .NY OD fharRock MB , FO.SMG DATE SRM A 111Ie4007 12.05 PM 2007 LRCF SRI 2.3b SRM %AO DEBCRBRWN: Au0unl narm +e Nwnper: ACCOUNTS BEPT PR CREDIT AMOUNT .`,-•-,. ... .._ •. ,...... ... OE IT AMOUNT PR%f Burdn ............. PR%for Officc LRCPSRy LLC(SBnrRonk) AenounuB Iomble MSmrFa ColuWedP al]-0oo-lloomuoow.D000aooD IIU-0OOdM1000.q)9-0000.000D 111]-000.1100-0Op0p00-0MPOOOp 111]-0W-1112-000{S]y0ppp00pp 715Q16 ...`__..., ...� Direct Bill by Invoice 7 M.16 Accon d.ble M Fee CmuPDevl0.0 0.ao %fm BPNm PR%fm OlBce 111T-000.1200.00O000000pp-0000 411T*o0,112.MoI M-0 o-W,, 111]-000.1200-000.pppp.0ppp.pp00 111]-000-0112-000�]SI-0ppOpp00 Auountr Reneivabb MOmI Fa CoMUDevlp J99.] rect y InvoicePR 1 399.T9 52 53 0.00 Aa UResei%Wc MSm1 Fee ComWevlp 0A0 PR %M Burden PR%fn OR. 111]-0D0.I200-000.00009000-000p 111 ]-000.1300LWgOq.ppOp ppp0 11]T-000.1200.M0.p000-0000.0D00 11I]-000.1500-0000000-0000.0000 0.00 Direct Bill by Invoice 50 51 0.00 52 Aeconntr ReneenNe M0m1Pm COnaVDcvlP Aerountr Renevabb M ml Pec CunaWcvlp 0,0p PR%for Burden PR%farO ke 0.00 A.h 0.cceiveble Memo Fee CPOcWevlp Direct Bill by Invoice so 51 OAO n APe0mlb RmNvable M mr Fm crowov OAD 7,83S.95 7,813.95 Yrriume O.OD LDD Desurl Development. Inc Invoice Vv'cll„:. :-,A 92210 Date 1T2542007 10501 9/ o • Lii*SR.2, LU, P") BOX 354469 PALM COAS 1, 1- L 32135-4489 Description;�; 11, 1 LDD DID wages to LRCF SR2, LLC Dec 0/ $W6 54 2 LDD CIE) Burden to LRCI- SR2, CLG Dec W $211.1 1 3 LL'-D DD Office to LRGF SR2, LI-C Dec 07 $192.26 4 LI'D DD I axes to LRCF SR2. LL.0 Dec N $41.96 5 DD EenefiI5 401K CRCl- SR2, LECDec Oi 320.08 1-24 6-7 U)(ljU4- leans :IMMEDIAIE INVOICE TOTAL: Fm further inityi matioll conum 7O11-674-115-1 ENTERED 1,441.95 C4q5S-o, V ------ ------ Glow 1: 1 - - - - -- - - - - sill WIN' - - - - - - - - - - - I- . . . . . . . . . . . 11 . . . . . . . . . . . . . . . . li% T. . .. . ....... pp .rti Il: plll� p w-. ..... . . . .. . . .. ...... .... 110, ------- ---- - I . ..... ... . ...... I III) I h"I I Do I. 1-+ I) 111, :.1 1tt•.... I" H)h 74 3 U W L1.1 !,I W14 A - vl-tl A. 2097 Date of Request: Date Required; Pfrjducor (f) be, purd,its,.!C1 Irmo Vendors Name: Address: GIN State Zip Ship to address if different: Is this a Budgeted item': — Yes — No Approval: Print Approving Supervisors Name: Purchase Order # /Z/0-7 LC� Phone: Fax: Vendor Contact Name: Submitted By: For Dept: — Vendors Job Cost Product Unit Item P Code Code Quantity Number Description Price Total EC' - Invoice P;.r.ing NIUSI match Ppichcisp Order ALiy changes must be approved. Discrepancies will delay payment. Please Note: Sub. 501,31 for this Vendor Pleasp be certain cili costs including Mx) are designaleJ Tax i! AorIrabe Th is Purchal,.: rrcer mjrnbe, must appear on alitnvoiecs arl(i packaging slips. Shipoing & Handing Pease nf)M)i US jrfueflls!Clly it YGU aFa U1610W,, 10 Total for all Costs conidele the oidcr ty the spe6fied dive G;ve -Duy IT the Accourilinci Office vice We PO is approved, Th:.n•: Y 11-F il MWI ;,: n;". l),.'r1vv-! 6 ;,, F . w- �,; , LDD SilverRock, LLC Initial Deposit Payment Draw Request Approval Planning Design Entitlement Total Escrow Account Date 311/2007I Due Date 21 days 3/22/2007 4/20/20107 Costs Costs $40,000.00 $185,048.01 Costs Staff Costs NTE 35% $10,474.94 $54,086.69 Draw $50,474.94525.06 $239,134.70390.36 Balance 000.00 Ej Phase BH3/30/20007I BH 5/10/2007 1/22/2008�2nd 1/31/2008 5/31/2007 Deposit 2/20/2008� $210.390.36 $36,170.33 $17,716.79 _ $210,390.36 -$825,000.00 $53,887.12 $0.00 $325,000.00 $1,150,000.00 $1,096,112.88 BH RH $0.00—^ _ $0.00 _-- _ $0.00 f $0.00 — $0.00 _ — $0.00 —� $0.00 _ $0.00 Total by Category $471,608.70 $0.00 $82,278.42 -$271,112.88 Maximum Allowed Per Phase: First Deposit Payment Boutique Hotel ("BH") - $500,000 Maximum met on 511012007 - Ranch Villas ("RV") - $25,000 _ Resort Hotel ("RH") - $200,000 Resort Retail ("RR") - $50,000 (— Golf Casitas(.GC.) "GC" - $50,000 217/2008 Escrow Draw Request LDD SllverRock, LLC Approval Sheet Draw No. 4 eor-i- k,4� C5t Lazo- d¢zP,--,% }> Date a - 5 - 09 Draw Amount �% 5 3. 1;' 81 • I2 Approval: M. Katherine Jenson e nA-O `ect c�— Agency Counsel ✓'� W1p1"�� Frank Saevacek-��..� First American Ifitle Company has recorded this instrument by request as an acbommodation only and has not examined it for regularity and sufficiency or as to its effect upon the title to any real property that may be described herein, RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: La Quints Redevelopment Agency P.G. Box 1504 La Quints, California 92247 Attn: Executive Director DOC # 2011-0069711 02/14/2011 01:45P Fee:NC Page 1 of 31 Recorded in official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 1111111311111111111111111111111111111111111111111 S I R I U PAGE SIZE DA MISC LONG RFD COPY M A L 465 426 PCOR NCOR SMF CH EXAM F UNI l/ll T: CTY rFree Recording Requested Government Code § 61031 030 QUITCLAIM DEED (Disposition and Development Agreement) FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, LDD SILVERROCK, LLC, a California limited liability company ("Developer"), do(es) hereby remise, release and forever quitclaim to LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic, all of its right, title, and interest in and to (i) that certain Disposition and Development Agreement entered into by and between the Agency and Developer on or about December 19, 2006, which was subsequently amended on four (4) occasions; and (ii) the real property in the City of La Quinta, County of San Riverside, State of California, described in Schedule 1 attached hereto and incorporated herein by reference. LDD SILVERROCK, LLC, a Delaware limited liability company By: Its: 2 5 -�=v renru,cCAs e'e1 First American Title Company has recorded this instrument by request as an accommodation only and has not examined it for regularity and sufficiency or as to its effect upon the title to any real property that may be described herein. 882/015e10-0084 1127752.06 al I110/10 MAIL TAX STATEMENT TO RETURN ADDRESS ABOVE � State of California ) County of On g0V,&w l vS, 11 1.010 before me, �� V Notary Public, ,,�f� (here i rt name and title of the officer) personally appeared 'IVIlAGtoa �k who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. V. VEGA a CoMM.# 1887010 xotnar ruw"-utroRwn N las ANGELES COUNTY Mr Comm. ESP Signature (seal) 882/015610-0084 _2_ 1127752.06 al 1/10/10 EXHIBIT "A" TO QUITCLAIM DEED LEGAL DESCRIPTION OF PROPERTY ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF RIVERSIDE, CITY OF LA QUINTA, DESCRIBED AS FOLLOWS: 982/0156[0-0084 _3_ 1127752.06 a11/10/10 EXHIBIT "A" LOT 3 THAT N OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 FAST, OSANOBERN RDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89052'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0°07'IT' EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8°17'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A ERSE CURVATURE POINT OF REV WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL. ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE Of 103.23 CURVATURE 9oWITH A 4FTPOINTO A 97.00 FEET RADIUS CURVECON AVE SOUTH WESTERLY; 'I SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36A DISTANCE WITH AOF 147 .26 FEET RADIUS US FEET TO A POINT TO A POINT OF COMPOUND CURVATURE CURVE CONCAVE SOUTH CENTRAL ANGLE OfNCE ALONG THE ARC 2°36 50" A DISTANCE OFF 198.59 SAID CURVE THROUGH A CENTRA FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF OSAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 272.20 FEET; THENCE SOUTH 7' 10' 16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107'36'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1'I1'10" A DISTANCE OF 12.73 FEET; THENCE SOUTH 21'42'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24'34' I T' A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS'CURVE CONCAVE SOUTHEASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET; THENCE SOUTH 89'10'29" WEST 235.22 FEET; THENCE SOUTH 00000'00" EAST 140.01 FEET; THENCE SOUTH 99010'29" WEST 273.96 FEET; THENCE NORTH 24'22'35" WEST 22.27 FEET; THENCE NORTH 33058'41" WEST 7.49 FEET; THENCE NORTH 71*08'05" WEST 26.96 FEET TO THE BEGINNING OF A NON -TANGENT 46.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 87031'26" A DISTANCE OF 70.27 FEET; THENCE NORTH 57'29'35" WEST 12.72 FEET TO THE BEGINNING OF A 67.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39040'43" A DISTANCE OF 46.40 FEET TOA POINT OF REVERSE CURVATURE WITH A 96.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63'20'45" A DISTANCE OF 106.14 FEET; THENCE NORTH 33048'46" WEST 21.80 FEET; THENCE NORTH 33048'46" WEST 52.19 FEET; THENCE NORTH 26-06.10" WEST 72.34 FEET TO THE BEGINNING OF A NON -TANGENT 196.00 FEET RADIUS CURVE CONCAVE EASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 64'2►'31" EAST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 45049'59" A DISTANCE OF 156.79 FEET; THENCE NORTH 2001 I'30" EAST 110.45 FEET TO THE BEGINNING OF A 196.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG 101 THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44°08'O1" A DISTANCE OF 150.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 187.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46104'51" A DISTANCE OF 150.40 FEET; THENCE NORTH 22°09' 10" EAST 99.07 FEET TO THE BEGINNING OF A NON -TANGENT 210.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 67°5l'40" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47034'55" A DISTANCE OF 174.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50026'40" A DISTANCE OF 32.58 FEET TO A POINT OF REVERSE CURVATURE WITH A 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 64059'55" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 75009'O2" A DISTANCE OF 107.55 FEET; THENCE NORTH 90°00'00" EAST 428.65 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 955,764 SQ.FT. 19.646 ACRES 0 SCALE: \ \ SHEEr I OF 1 EXHIBIT LOT 3 TPM 33367 -- —fi� 1 Aj jkEk CAN CANAL _ _ _— lrr a essrbwT T7asn' I I I I I L o,r 11 Na? ACRES 1 65 I MI77173' Al— — — — 1 !OY 2 !BB ACRES I A �I1 I 0 1 AC%gW `'�` 1 o=�awsr I Lor x f l�S/06_ oArF CONSTRUCTION TESTING & ENGINEERING, INC. PLAYYNS -L IYIL FA111t EYN1-LA11 SI SYIYNS. 1UIf CYpSLL 11U Y1PN11111 NItt IN tm 111111A 11111 11 t1N11N•N11 3 v P 0 x I I I I I 8 9 17 16 SEC11 car ti JONN F. YOUNG p Exp. 9-30-08 * Na. 1618 e OF CA��f` REVISED TENTATIVE Is aose PARCEL MAP 33367 1 LOT 3 11 1, 1s Gs EXHIBIT T LOT 3 CONSTRUCTION TESTIING& ENGINEERING, INCL PARCEL TAPS 33367 1111 Y/rt11! 1111 ttllll 11f lit101/1 LY 11111 III I1111 11t4 1G1 SHEET 2 OF 2 1'e1w EXHIBIT "A" LOT THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0003149' WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89052'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET, THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034'48" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054'12" A DISTANCE OF 171.97 FEET TO THE BEGINNING OF A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08017'50" A DISTANCE OF 4822 FEET TO THE BEGINNING OF A 32.00 FEET RADIUS 'CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16958'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" A DISTANCE OF 27220 FEET; THENCE SOUTH 7°10'16 WEST 124.73 FEET TO m THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84-42.41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036'27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 1011' 10" A DISTANCE OF 12.73 FEET; NON- ANG NCE TjPOINT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0046'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25052'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 6001715T' A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24°34'17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 RVATURE WITH A 508.00 FEET RADIUS FEET TO A POINT OF REVERSE CU. CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 26000' 11" A DISTANCE OF 230.55 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 4008'25" A DISTANCE OF 36,71 FEET; THENCE SOUTH 6034'32" EAST 103.90 FEET; THENCE SOUTH 89°10'29" WEST 250.00 FEET; THENCE NORTH 0°00'00" EAST 140.01 FEET; THENCE NORTH 89010'29" EAST 235.22 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS (WADE TO EXHIBIT "A" ATTACHED HERETO AND (WADE A PART HEREOF. CONTAINING. 33,889 SQ.FT 0.78 ACRES ' S o6 DATE n EXHIBIT 1Y) LOT 4 TPM 33367 t ALL - — - AAMCAN CANAL — LOT 3 MW ACR89 HN F. YUUNU DATE LDr H 47 ACRBB — Ar--- 1 I A 1, zm I lil LOT 6 i III rJ:: aF.YOU9-70-08{xo.4W SHEET i OF 2 �I I I la I I I I I 8�9 17 16 SECn COR CONSTRUCTION TEHNG & EM60TEER INC. I PARCEL MAP 33367 FLAIIlII•COIL IIIIIIIIINS-LAID IMMIS•ofofl IIICAI LOT 4 tt/ts/Oti ,rvR IIH moll it IIII, 111111 It UIIIIIoo w IIIII. P411IIt 74MM EXHIBIT 'B' LOT 4 CONSmUCTIQ;o T EFONG & ENBINEERIK INC. uu ooll Ilia. not us ttoatnot ID to. nou, rE:peq na•utt PARCEL blAp 33387 LOT 4 ii[is EXHIBIT "A" LOT 5 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0"03'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32034*49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36°54'12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF P17'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'06" A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43045'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040123" A DISTANCE OF 316.78 FEET; THENCE CONTINUING ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 9020'38" A DISTANCE OF 103.23 TO A POINT OF REVERSE CURVATURE WITH A 497.00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANOLE OF 16058'36" A DISTANCE OF 147.26 FEET TO A POINT TO A POINT OF COMPOUND CURVATURE WITH A 267,00 FEET RADIUS CURVE CONCAVE SOUTH WESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 42036'50" A DISTANCE OF 198.58 FEET TO A POINT OF COMPOUND CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 27030'21" LJ A DISTANCE OF 272.20 FEET; THENCE SOUTH 7010'16 WEST 124.73 FEET TO THE BEGINNING OF A NON -TANGENT 29.50 FEET RADIUS CURVE CONCAVE NORTHWESTERLY HAVING A RADIAL TO WHICH BEARS NORTH 84042'41" WEST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 107036,27" A DISTANCE OF 55.40 FEET TO A POINT OF REVERSE CURVATURE WITH A 614.85 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID OF 1"l 1' 10" A DISTANCE OF 12.73 FEET; CURVE THROUGH A CENTRAL ANGLE THENCE SOUTH 21042'36" WEST 75.54 FEET TO A POINT ON THE ARC OF A NON -TANGENT 539.31 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL TO WHICH BEARS SOUTH 21042'36" WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0'46'06" A DISTANCE OF 7.23 FEET TO A POINT OF COMPOUND CURVATURE OF A NON -TANGENT 22.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 25°52'36" WEST; THENCE SOUTH EASTERLY ALONG THE ARC OF SAIDCURVE THROUGH A CENTRAL ANGLE OF 60017'57" A DISTANCE OF 23.15 FEET TO A POINT OF REVERSE CURVATURE WITH A 93.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 24-34.17" A DISTANCE OF 39.88 FEET TO A POINT OF REVERSE CURVATURE WITH A 37.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51057'48" A DISTANCE OF 33.56 FEET TO A POINT OF REVERSE CURVATURE WITH A 508.00 FEET RADIUS CURVE CONCAVE SOUTH EASTERLY; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3(rO8'36" A DISTANCE OF 267.26 FEET; THENCE SOUTH 6034'32" EAST 103.90 FEET; TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 6034'32" EAST 240.83 FEET TO THE BEGINNING OF A 1312.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 13051'15" A DISTANCE OF 317.24 FEET; THENCE SOUTH 7016'43" WEST 281.12 FEET; THENCE NORTH 90000'00" WEST 248.02 FEET TO THE A POINT ON THE ARC OF A NON -TANGENT 62.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 75VI'19" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CUREVE THROUGH A CENTRAL ANGLE OF 105017'29" A DISTANCE OF 113.94 FEET; THENCE SOUTH 68°05'01" WEST 58.78 FEET TO THE BEGINNING OF A 290.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 53043'38" A DISTANCE OF 271.94 FEET TO A POINT OF COMPOUND CURVATURE WITH A 130.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 88002'34" A DISTANCE OF 199.76 FEET TO A POINT OF REVERSE CURVATURE WITH A WITH A 128.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 450091131, A DISTANCE OF 100.87 FEET; THENCE NORTH 15918'00" WEST 77.53 FEET TO THE OBEGINNING OF A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37034'59" A DISTANCE OF 41.32 FEET; THENCE NORTH 22°16'59" EAST 85.32 FEET TO THE BEGINNING OF A 220.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18°49'53" A DISTANCE OF 72.31 FEET TO A POINT OF REVERSE CURVATURE WITH A 46.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTH EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 84039' 14" A DISTANCE OF 67.96 FEET; THENCE NORTH 88°06'20" EAST 44.44 FEET TO THE BEGINNING OF A 72.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64n2'26" A DISTANCE OF 90.89 FEET TO A POINT OF COMPOUND CURVATURE WITH A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67016'50" A DISTANCE OF 117.43 FEET; THENCE NORTH 56°38'44" WEST 26.25 FEET; THENCE NORTH 89*10*29" EAST 523.96 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING. 517,687 SQ.FT. 11.88 ACRES JOHN F. YO G , PL �4665 EXHIBIT /fB 11 LOT 5 TPA! 33367 I III I ti �I c I wlll I I \ I }` I r1I I I i I 1 I l I I� I SCALE r'= 400' — / t / SNfEF i OF Y �nr�I ��l�A19Bfl 75' J`�� I \�\ I LOT it — -- -- LVT $ ID N Kftl 1.or a ® w Aa � I / 5 06 CONSTRUCTION TESTING & NUNNINt "CIVIL ixCUF[t1Y{-LAND IINI YCNUII poke mill lu mmmuD L LOr 10 I — - OM F. YOONO Exp. 9-30-08 MO. 4605 • PARCEL MAP 33367 LOT 5 t; a 6 9 17 16 SECR N COR r-400' SHEET 1 OF 1 EXHIBIT LOT 5 DATA TABLE N0. DEL TA18EARING I LENGTH S00'07'12 E - 12124 =J2J4'48- 18100' 104.66' J A =J654'12' 267.00' 171.97' 4 =007750" JJ100 48.12 = 41 %'44' 32 00' 22 96' 6 =122J2'06" 6100' 54,7J' 7 A =43 45'49" 32.00' 24.44' 8 0=28*40'23" 63J00' 316.78' =0970J8" 6J100' 1012J' 10 =1658'36" 497.00' 147.26' 11 =423650' 267.00' 198.58' 17 =107*36 29.50' 55.40' IJ =0171'10' 614.85' 12.7J' 14 S214136 W - 75.54 15 =00'46'06' 539.31' 72J' 16 =607757" 2200 23.15' 17 -24J417" 9100' J9.88 18 A=5157'48" 3700' J156' 19 S06J431 E - 240.8J I '=1J51Y5" 1312.00' 317.24' S0776 43 28112 N90170 00 W 24& 02 4 =10577 29" 62 00' 11194' 568iT5 DI W 58 78 =5343J8' 290.00' 271.94' =88'02'34" 1J0.00' 199.76' =45t79'13" 12800' l00.87' N7578 00 W - 77.5J =JIJ459' 6J00' 41.J2' 1 N227659 E - 85J2 =18'49'5J" 220, 00' 72 JI' =84J9'!4" 46.00 67.96' NWV610 E - 44.44 =6472'26" 72.00' 80.89' =677650" 100.00' 34.40' N56J844W 26.25 CONSTRUCTION TESTING 6 ENGINEERING, INC. ( PARCEL MAP 33367 r�IpYONII gitlu'lllt neiiiriiueii°iiiii°iw iriii r"°oii LOT 5 EXHIBIT "A" LOT 11 THAT PORTION OF THE EAST HALF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0°03'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1922.75 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007*12" EAST 123.24 FEET TO THE BEGINNING OF A 117.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE REVERSE OF 32034'41r' A OF OF CURVATURE WITHSAANCE 33.00 FEET3RADIUSFEETTCURVEOCONCAVE SOUTH WESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL HOLE OF 28027'17" A DISTANCE OF 165.38 FEET TO A POINT OF INTERSECTION WITH A NON -TANGENT 150,00 FEET RADIUS CURVE HAVING A RADIAL LINE TO WHICH BEARS SOUTH 0°03'38" EAST, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 47°19'48" A DISTANCE OF 123.91 FEET TO A POINT OF REVERSE CURVATURE WITH A 999.20 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTH EASTERLY THROUGH A ALONG THE ARC OF SAID OF 3 4.11 FEET TO POINT OF OMPOUN RAL ANGLE OF 20039'06" ACURVATURE WITH A 450.00 FEET RADIUS CURVE CONCAVE NORTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41°17'02" A DISTANCE OF 317.27 FEET; THENCE NORTH 75°20'02" EAST 130.18 FEET TO THE BEGINNING OF A 200.00 FEET RADIUS CURVE CONCAVE SOUTHERLY; THENCE EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50°29'26" A DISTANCE OF 176.25 FEET; THENCE SOUTH 54110'32" EAST 36.66 FEET TO THE BEGINNING OF A 75.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71028'15" A DISTANCE 93.56 FEET; THENCE SOUTH I7017'43" WEST 74.78 FEET TO THE BEGINNING OF A 90.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65°55'38" A DISTANCE OF 103.56 FEET; THENCE SOUTH 48037'55 EAST 196.68 FEET TO THE BEGINNING OF A 125.00 FEET RADIUS CURVE CONCAVE WESATERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 73004'09" A DISTANCE OF 159.41 FEET; THENCE SOUTH 175.00 24026'14" WEST CURVE CONCAVEDIUS ONORTHWESTERLY2 FEET TO THE BEGINNING THE CE SOUTHWESTERLY ALONG Eo 0 N 301 THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 65024'55: A DISTANCE OF 189.12 FEET; THENCE SOUTH 89151'09" WEST 116.33 FEET TO THE BEGINNING OF A 140.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 94018'57" A DISTANCE OF 230.46 FEET; THENCE NORTH 4.10.06 EAST 111.79 FEET TO THE BEGINNING OF A 115.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 81018'13" A DISTANCE OF 149.84 FEET; THENCE NORTH 77°08'07" WEST 16.05 FEET TO A POINT OF INTERSECTION WITH A 333.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 68039'29" WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41027106" A DISTANCE OF 240.91 FEET TO A POINT OF COMPOUND CURVATURE WITH A 563.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16058'36" A DISTANCE OF 166.82 FEET TO A POINT OF REVERSE CURVATURE WITH A 567.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37017'37" A DISTANCE OF 369.06 FEET TO A POINT OF COMPOUND CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50025'57" A DISTANCE OF 28.17 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 63051'20" A DISTANCE OF 70.21 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54046'50" A DISTANCE OF 30.60 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5019'20" A DISTANCE OF 24.80 FEET TO A POINT OF COMPOUNF CURVATURE WITH A 333.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8026'55" A DISTANCE OF 49.10 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHHSIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 375,971 SQ.FT XJOHNI F. Y G , P 665 8.631 ACRES / �S 06 DATE It EXHIBIT $1B" LOT 11 TPM 33367 COACRELA i T.P.! I Lo7 2 43.64 ACAE6 LDT 23 I a.en •e a I� I F I� I F I I — I I I I 1 SCALE: i 1'=J00' inure---------- JOHN F. YOUNG Exp. 9-30-08 d 11� 1... HN F. TUUNV VUi 4665 U 1F �rf OF C1f� 1 OF 2 5 (bN15TxRU1CT10Nvit1T ESING 6 ENGINEERsylviv is EtNG�xtll i I PARCEL MAP 33367 "" �'- • 1111 xttllIL ROAR. ItITI tit Itltatlln H 1111/,. R 1 1 //MITI LOT 11 1 xo oe JPR EXHIBIT "A" I ) LOT 19 THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHEAST QUARTER OF SECTION 6, THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 5 AND THE NORTH WEST QUARTER OF THE NORTH WEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 433.99 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 41°57'54" WEST 674.79 FEET; THENCE NORTH 88°27'35" WEST 244.20 FEET; THENCE NORTH 7°47'15" WEST 289.62 FEET; THENCE NORTH 83°26'27 EAST 398.98 FEET; THENCE SOUTH 29058'01" EAST 952.82 FEET: THENCE SOUTH 52039'03" EAST 485.41 FEET; THENCE SOUTH 57°l6'16" EAST 463.15 FEET; THENCE SOUTH 30°58'20" WEST 183.52 FEET TO THE BEGINNING OF A NON -TANGENT 60.00 FEET RADIUS CURVE CONCAVE SOUTHERLY HAVING A RADIAL LINE TO WHICH BEARS NORTH 10057'45" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32047'26" A DISTANCE OF 34.34 FEET TO A POINT OF COMPOUND CURVATURE WITH A 118.00 FEET RADIUS CURVE HAVING A RADIAL TO WHICH BEARS SOUTH 21*49141" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 51027'56" A DISTANCE OF 105.99 FEET; THENCE SOUTH 40020108" WEST 78.20 FEET TO THE BEGINNING OF AN 86.00 FEET RADIUS CURVE CONCAVE NORTHERLY; ulw THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 30032'16" A DISTANCE OF 45.84 FEET; THENCE SOUTH 28°00'41" EAST 18.67 FEET; THENCE SOUTH 61°59'19" WEST 26.20 FEET TO THE BEGINNING OF A 240.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 57000'22" A DISTANCE OF 238.79 FEET TO A POINT ON A 227.84 FEET RADIUS CURVE CONCAVE NORTHEASTERLY HAVING A RADIAL TO WHICH BEARS NORTH 20°04'07" EAST; THENCE NORTH WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36031' 16" A DISTANCE OF 145.23 FEET; THENCE NORTH 33 24'37' WEST 99.07 FEET; THENCE NORTH 66°23'28" EAST 120.28 FEET; THENCE NORTH 23038'13" WEST 532.29 FEET; THENCE NORTH 41057'54" WEST 149.34 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 600,614 SQ. FT. 13.79 AC I LOP 19 LoT A 0 Lo7 A Lor iY sCAL£.• Y noCOI mucTION TE3nN0 & ENSINEERFIN68.INC I PARCEL MAP 33367 uu �aona nm, aunt iii n0000ioo eA lion oiaml in•un FOR LOT 19 _ — EXHIBIT "A" LOT 22 THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER AND THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 8, TOWNSHIP 6 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID SECTION 8, THENCE NORTH 89052'23" EAST ALONG THE NORTHERLY LINE OF SAID SECTION 8 A DISTANCE OF 1321.32 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID SECTION 8; THENCE SOUTH 0000'57" WEST ALONG THE EASTERLY LINE OF SAID NORTHWEST QUARTER OF THE NORTHWEST QUARTER 896.07 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 84057'26" EAST 115.10 FEET; THENCE SOUTH 80055'40" EAST 31.00 FEET; THENCE SOUTH 10°58'24" WEST 69.75 FEET; THENCE SOUTH 1736'56' WEST 57.87 FEET; THENCE SOUTH Sol7'25" EAST 35.32 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE TO WHICH BEARS SOUTH 6801 0'4T'WEST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 669I8'23" A DISTANCE OF 65.96 FEET: THENCE SOUTH 48*16'59" WEST 4.08 FEET; THENCE SOUTH 61045"27" WEST 4.67 FEET; THENCE SOUTH 63023'36 WEST 6.23 FEET; THENCE SOUTH 57"17' 10" WEST 6.01 FEET; THENCE SOUTH 59028'05" WEST 5.26 FFFt, THENCE SOUTH 70"05'07 WEST 5.56 FEET TO THE BEGINNING OF A NON -TANGENT 57.00 FEET RADIUS CURVE CONCAVE NORTHERLY, A RADIAL LINE TO WHICH BEARS NORTH 13°18'47" WEST; THENCE WESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 50056'06" A DISTANCE OF 50.67 FEET; THENCE SOUTH 48018'02" WEST 13.21 FEET; THENCE SOUTH 20"03' 17" WEST 15.59 FEET; THENCE NORTH 6905 1'12" WEST 40.59 FEET; THENCE SOUTH 24°11'42" WEST 78.02 FEET; THENCE NORTH 64037'29" WEST 151.50 FEET; THENCE NORTH 29010'52" EAST 266.14 FEET; THENCE NORTH 84°57'26" EAST 53.90 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. CONTAINING: 63,531 SQ. FT. 1.46 ACRES f /�. / 06 OHN F. YO PLS 4 DA K3 LOF J LOT I22 ON COflN'Pl' CALiFURMa SNE7 I OF 2 ji�ff IB 1 LM 20 dt LOT 20 I - LOT A -------------- I LOT A J" F. YOUM Er*, 9-30-00 Ys Am �HN F. YOU 4665 / NA IF CONSTRUCTION TESTING & ENGINEERING, INC. PARCIM MAP 33367 I,I,YI� III IIIII IIII 11'11111i111111 CII Il1/1111 I1111111! 111 FOR ],pTS 'LO & 21 s of 1 CONSTRUCTION TESTING & ENGINEERM, INC. I PARCEL MAP 93387 �" t'-tao ,,Apollo iu 1"e"i,ii+ai"iuii`oiiiioiin ei"iiiiiiii,ii i"i ni FOR LOTS 20 dt 21 1027 EXHIBIT "A" LOT 23 THAT PORTION OF THE EAST HALF SECTION S. TOWNSHIP 6 SOUTH. RANGE 7 EAST, SAN BERNARDINO MERIDIAN, MORE ACCURATELY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SECTION 8; THENCE NORTH 0°03'49" WEST, ALONG THE EASTERLY LINE OF SAID SECTION 8 A DISTANCE OF 3812.28 FEET TO AN INTERSECTION WITH THE SOUTHERLY RIGHT-OF-WAY LINE OF THE ALL AMERICAN CANAL ALSO KNOWN AS THE COACHELLA CANAL; THENCE SOUTH 89°52'48" WEST ALONG SAID SOUTHERLY RIGHT-OF-WAY A DISTANCE OF 1988.75 FEET TO THE TRUE POINT OF BEGINNING; THENCE DEPARTING SAID RIGHT-OF-WAY SOUTH 0007'12" EAST 123.24 FEET TO THE BEGINNING OF A 183.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 3r34'49" A DISTANCE OF 104.06 FEET TO A POINT OF REVERSE CURVATURE WITH A 267.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 36054' 12" A DISTANCE OF 171.97 FEET TO A POINT OF REVERSE CURVATURE WITH A 333.00 FEET RADIUS CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 8°17'50" A DISTANCE OF 48.22 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41006'44" A DISTANCE OF 22.96 FEET TO A POINT OF REVERSE CURVATURE WITH A 63.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 122032'W' A DISTANCE OF 134.73 FEET TO A POINT OF REVERSE CURVATURE WITH A 32.00 FEET RADIUS CURVE CONCAVE SOUTHWESTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43°45'49" A DISTANCE OF 24.44 FEET TO A POINT OF REVERSE CURVATURE WITH A 633.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28040'23" A DISTANCE OF 316.79 FEET; THENCE NORTH 90°00'00" WEST 428.65 FEET TO A POINT ON THE ARC OF A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE WESTERLY HAVING A RADIAL LINE TO WHICH BEARS SOUTH 86035'18" WEST; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46044'15" A DISTANCE OF 66.89 FEET; THENCE NORTH 50008'57" WEST 134.38 FEET TO THE BEGINNING OF A 47.00 FEET RADIUS CURVE CONCAVE NORTHEASTERLY; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29029'38" A DISTANCE OF 24.19 FEET; THENCE NORTH 4°13'09" WEST 26.65 FEET; THENCE NORTH 16050'59" WEST 18.54 FEET; THENCE NORTH 28012'57" WEST 19.28 FEET TO THE BEGINNING OF A 37.00 FEET RADIUS CURVE CONCAVE EASTERLY; THENCE NORTHERLY ALONG THE ARC OF 101 rp:ie SAID CURVE THROUGH A CENTRAL ANGLE OF 54°07'55" A DISTANCE OF 34.9 FEET; THENCE NORTH 27°09'48" EAST 40.67 FEET TO THE BEGINNING OF A 250.00 FEET RADIUS CURVE CONCAVE NORTHWESTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22050'21" A DISTANCE OF 99.65 FEET TO A POINT OF REVERSE CURVATURE WITH A NON -TANGENT 82.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY HAVING A RADIAL TO WHICH BEARS SOUTH 85°40'33" EAST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 54026'03" A DISTANCE OF 77.90 FEET; THENCE NORTH 27059'09" EAST 16.70 FEET TO THE BEGINNING OF A 56.00 FEET RADIUS CURVE CONCAVE SOUTHEASTERLY; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28038'36" A DISTANCE OF 28.00 FEET; THENCE NORTH 19°10'35" EAST 27.25 FEET TO THE BEGINNING OF A 100.00 FEET RADIUS CURVE CONCAVE WESTERLY; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 35032'06" A DISTANCE OF 62.02 FEET; THENCE NORTH 40°04'06" WEST 64.22 FEET; THENCE NORTH 4r39'W' WEST 47.50 FEET; THENCE NORTH 37n6'08" WEST 102.14 FEET TO A POINT ON SAID SOUTHERLY RIGHT-OF-WAY OF THE ALL AMERICA14 CANAL; THENCE NORTH 89052'48" EAST ALONG SAID RIGHT-OF-WAY 215.01 FEET TO THE TRUE POINT OF BEGINNING. REFERENCE IS MADE TO EXHIBIT "A" ATTACHED HERETO AND (WADE A PART HEREOF. CONTAINING: 166,459 SQ.FT. 3.82 ACRES d DATE 2/s o6 OHN F. YO G . P 4665 �vJ SCALE.' I "=30a' RI{'h mg COUNTY CAUFORIVL4 SHEET I OF 2 EXHIBIT J'B JJ LOT 23 TPY 33367 tar 28Wf - ,: 1 1 :Lor 2" Lg ' L �Ii ,I I 94���j .S D -4 / [t /w/ �OHN F. YO v LS 4665 /�YA TE COMTRUCTlon11 �NG & EA�EERING, INC. ua iall iin, iun w aeoino� or.. nm, mptq uaun Lor s - JOHN F. YOUNG Exp. 9-30-08 ft ww , PARCEL MAP 33367 LOT 23 819 1 116 SEC71 COR SHEET 2 OF 2 EXHIBIT 'B0 LOT 23 CONMucmN TESTING &w ENGINEERING, IN NGINEERING,INICw.l I PARCEL MAP 33367 m ' 3 11AUe, wltl IleP tiL�s oe am CERTIFICATE OF ACCEPTANCE LA QUINTA REDEVELOPMENT AGENCY THIS IS TO CERTIFY that the interest in real property and other interests conveyed by the foregoing Quitclaim Deed dated 2011, from LDD SILVERROCK, LLC, a California limited liability company, to the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), is hereby accepted by the undersigned Executive Director of the Agency on behalf of the Agency, pursuant to authority conferred by Resolution No. 2002-12 of the Agency Board of Directors, adopted on June 18, 2002, and the Agency consents to recordation thereof by its duly authorized officer. Date: 12011 T LA QUINTA REDEVELOPMENT AGENCY Thomas P. Genovese, Executive Director State of California ) County o v rs69— ) (�5� 1 On oZ& QOII before me, IG.'MP—jaS` ` IC TO Notary Public, qalnn—M (here insert name and title of the officer) personally appeared �+� UD�—ZJ get o D , who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal."" "' ' .. PAMEIA 5. NIETO . Commission # 1723211 < Notary Public - Californlo (� Rmm.Expi County n �Xy�j MyComm.FxpiresFeb2,2011 Signature 10.h �Y� "" (seat) 882/0)5610-0084 -4_ 1127752,07 n11/10/10 First American Title Company has recorded this` iinsbipent by request as an accommodation only and has not examined it for regularity and sufficiency or as to its effect upon the title to any real property that may be described herein. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, California 92247 Attn: Executive Director DOC # 2011-0069712 02/14/2011 01:45P Fee:NC Page 1 of 3 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 111111111111111111III1I11119111111111111111111 S R U PAGE SIZE DA MISC I LONG I RFD COPY M A L 465 426 PCOR NCOR SMF NH EXAM 636 T: CTY UNI Government Code § 61031 QUITCLAIM DEED (Development Agreement) FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, LDD SILVERROCK, LLC, a California limited liability company, do(es) hereby remise, release and forever quitclaim to CITY OF LA QUINTA, a California municipal corporation and charter city, all of its right, title, and interest in and to that certain Development Agreement dated December 6, 2006, and recorded in the Official Records of Riverside County on August 3, 2007, as Instrument No. 2007-0502623. First American Title Company has recorded this instrument by request as an accommodation only and has not examined it for regularity and sufficienc or as to its effect upon the title to any real property that may be described herein. 112/015610-0084 1127752.06 01/10/10 LDD SILVERROCK, LLC, a Delaware limited liability company By: \r—.2 ik � 11 its: I z,AIL TAX STATEMENT TO RETURN ADDRESS ABOVE State of California +) County of W'Nk3 On UOV~ I �, 20W before me, J V ��l a Notary Public, (here insert name and title of the officer) personally appeared '(�'100AVe-e P.;r%ta�(� ��.t�l V1 K. , who 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. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 812/015610 0084 1127752.06 el 1110/10 CERTIFICATE OF ACCEPTANCE CITY OF LA QUINTA THIS IS TO CERTIFY that the interest in real property conveyed by the foregoing Quitclaim Deed dated T&jg(jAnIV 14 2011 , 2011, from LDD SILVERROCK, LLC, a California limited liability company, to the CITY OF LA QUINTA, a California municipal corporation and charter city (the "City"), is hereby accepted by the undersigned City Manager of the City on behalf of the City, pursuant to authority conferred by Resolution No. 2002-186 of the City Council, adopted on June 18, 2002, and the City consents to recordation thereof by its duly authorized officer. Date: L/" -,� ,�- 2011 CITY OF LA QUI Thomas P. Genovese, City Manager State of California ) County o va r 5 1 P— Onao, a8 a011 before me, GlM e. IQS, ' ` 1 e,40 Notary Public, 1 I n there insert name and title of the officer) personally appeared � J61Pn92� > who 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. certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature ' � LL OIZ'Z"a'saIliq w OIwAluno'aieuAro4 o111DO- � IO/yN ZCZLI1#uo o, 0' VdBNWN �. (seal) • •; PAMELA S. NIETO Commission # 1723211 Notary Public - Callfornla • Riverside County Rlvemm.Expiresount 2011 882/015610-0084 112752.07 al 1/10/10 -3- P.O. sox 1504 7 8 - 4 9 5 CA1,1.F TANIP]C0 LA QutNrA, CALIFORNIA 92253 August 4, 2010 VIA E-MAIL AND OVERNITE EXPRESS Debra Dunn Escrow Officer First American Title Company 3625 14" Street Riverside, CA 92501 (760) 7 7 7 - 7 0 0 0 FAX (760) 777-7101 Re: Cancellation of Escrows and Demand for Deposit Payment Funds Dear Ms. Dunn: On December 19, 2006, the La Quinta Redevelopment Agency ("Agency") entered into a Disposition and Development Agreement ("DDA") with LDD SilverRock, LLC ("Developer"), pursuant to which the Agency was to sell to the Developer certain real property located in the City of La Quinta, and the Developer was to develop thereon several resort hotel and condominium units and structures. The DDA was amended on four separate occasions, to provide Developer with extensions to perform. In connection with executing the DDA, the Agency and Developer opened two escrow accounts: Account No. 3079198 was opened to facilitate the transfer of the real property to the Developer (the "Property Escrow"), which was to be transferred in several phases; and Account No. 8422024839 was opened to hold the "Deposit Payments" Developer was required to deposit with you, as "Escrow Agent" (the "Deposit Payments Escrow"), pursuant to Section 208 of the DDA. As of June 30, 2010, the Deposit Payments Escrow, which is held at Wells Fargo Bank, in Account No. 8422024839, contained $598,118. On August 2, 2010, the Agency terminated the DDA. The Agency's termination was made pursuant to Section 603.2(b) of the DDA, which authorized the Agency to terminate the DDA if one or more of the Agency's closing conditions was not satisfied on or before the "Outside Date for Closing," which was July 31, 2010 (pursuant to the latest amendment). We have enclosed a copy of the Agency's termination letter with this letter. Section 202.6 of the DDA authorizes the termination of the Property Escrow. The pertinent part of that section reads as follows: 202.6 Termination. If an Escrow is not in condition to close by the applicable Outside Date for Closing, then either party which has fully performed under this Agreement may, in writing, demand the return of money or property and terminate such Escrow. If either party makes a written demand for return of documents or properties, the Escrow shall not terminate until ten (10) business days after Escrow Agent shall have delivered copies of such demand to all other parties at the respective addresses shown in this Agreement. Pursuant to Section 202.6 of the DDA, you are hereby instructed and directed to terminate the Property Escrow, and to return all documents and property that have been delivered to you by the Agency. The first sentence in Section 208.3 of the DDA describes the disposition of the Deposit Payment funds in the event the DDA is terminated prior to the close of the "Initial Escrow" due to reasons other than the default of the Agency. That sentence reads as follows: 208.3 Agency Retention of Deposit Payment Funds. Subject to the last sentence in this Section 208.3 and Section 603 below, in the event this Agreement is terminated prior to the Initial Escrow for any reason other than as a result of a Default by the Agency which is not cured within the applicable cure period, Escrow Agent shall, within ten (10) days thereafter, deliver to Agency, and Agency shall be entitled to retain, all unreleased portions of any Deposit Payments delivered to Escrow Agent pursuant to this Section 208. Pursuant to Section 208.3 of the DDA, you are hereby instructed and directed to (i) deliver to the Agency all of the Deposit Payments delivered into the Deposit Payments Escrow pursuant to Section 208 of the DDA that remain in the Deposit Payments Escrow, and (ii) terminate the Deposit Payments Escrow. Should you have any questions, please feel free to call Allison LeMoine-Bui, of Rutan & Tucker, LLP, at (714) 662-4658. . Sincerely, Thomas P. Genovese Executive Director Enclosure cc: Douglas R. Evans, Assistant City Manager - Development Services M. Katherine Jenson, Agency Counsel Frank Spevacek, Rosenow Spevacek Group Manatt, Phelps & Phillips, LLP 11355 W. Olympic Boulevard Los Angeles, CA 90064 Attention: Timi A, Hallem Lowe Enterprises, Inc. 11777 San Vicente Boulevard, Suite 900 Los Angeles, CA 90049 Attention: Corporate Counsel hQab'M P.O. Box 1504 78-195 Cnu.eTAMPICO I -A QurNrA, CALIFORNIA 92253 August 2, 2010 VIA E-MAIL AND FIRST CLASS MAIL LDD SilverRock, LLC 74-001 Reserve Drive Indian Wells, CA 92210 Attention: Theodore R, Lennon, Jr. rN (760)777-7000 FAX (760) 777-7101 Re: Notice of Termination of Disposition and Development Agreement Dear Mr. Lennon: The purpose of this letter is to notify you that the Agency is exercising its rights under Section 603.2(b) of the Disposition and Development Agreement ("DDA") between the La Quinta Redevelopment Agency ("Agency") and LDD SilverRock, LLC ("Developer") to terminate the DDA'. Section 603,2(b) of the DDA provides that the Agency may terminate the DDA if "lb) one or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency." As you may recall, the Outside Date for Closing for the Boutique Hotel Parcel has been extended by prior Agency action to July 31, 2010. As of that date, a number of the Agency's Conditions Precedent to the Closing had not been fulfilled. They include, without limitation, the conditions listed in Sections 205.1 (d) [design approvals], (i) [Developer financing], (k) [grading plans/permits], (1) [building plans/permits], and (q) [deposit payments], had not been fulfilled. Section 603.2 of the DDA further provides that from the date of the Agency's written notice of termination to the Developer and thereafter, the DDA "shall be deemed terminated, and there shall be no further rights or obligations between the Parties, except that Agency shall be entitled to retain all then-undisbursed portions All undefined terms used in this Notice shall have the meanings ascribed thereto in the DDA. 8821015610 0084 1107204.02 LDD SilverRock, LLC Theodore R. Lennon, Jr. August 2, 2010 Page 2 of the Deposit Payments, and shall have any and all rights available to the Agency as set forth in Section 605 /of the DDAl. " As of July 31, 2010, the undisbursed Deposit Payments, which are on deposit with Wells Fargo Bank, in Account Number 8422024839, total approximately $598,122. Promptly after the date of this letter, the Agency will send a copy hereof and a disbursement demand letter to Ms. Debra Dunn, the Escrow Officer for the Deposit Payments account (Account No. 2664502), directing Ms. Dunn to disburse to the Agency all of the undisbursed Deposit Payments, and to thereafter terminate the Deposit Payments Escrow and the escrow opened for the property transfers contemplated under the DDA (Account No. 3079198), Should you have any questions, please contact Doug Evans at (760) 777-7031; alternatively, if the questions are of a legal nature, please ask Ms. Hallem to contact Kathy Jenson at (714) 641-5100. Sincerely, ( �k 1. ,_ r G :7 1 Thomas P. Genovese Executive Director cc: Doug Evans, Assistant City Manager - Development Services M. Katherine Jenson, Agency Counsel Frank Spevacek, Rosenow Spevacek Group Manatt, Phelps & Phillips, LLP 11355 W. Olyn-rpic Boulevard Los Angeles, CA 90064 Attention: Timi A. Hallem Lowe Enterprises, Inc. 11777 San Vicente Boulevard, Suite 900 Los Angeles, CA 90049 Attention: Corporate Counsel