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2008 05 20 RDARedevelopment Agency agendas are available on the City' web page @ www.la-quinta.org REDEVELOPMENT AGENCY AGENDA CITY COUNCIL CHAMBERS 78-495 Calls Tampico La Quinta, California 92253 Regular Meeting TUESDAY, MAY 20, 2008 3:00 P.M. Closed Session / 4:00 P.M. Open Session Beginning Resolution No. RA 2008-002 CALL TO ORDER Roll Call: Agency Board Members: Adolph, Henderson, Osborne, Sniff, and Chairman Kirk PUBLIC COMMENT At this time, members of the public may address the Redevelopment Agency on any matter not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. CLOSED SESSION NOTE: Time permitting the Redevelopment Agency Board may conduct Closed Session discussions during the dinner recess. In addition, persons identified as negotiating parties are not invited into the Closed Session meeting when acquisition of real property is considered. 1. CONFERENCE WITH THE AGENCY'S REAL PROPERTY NEGOTIATOR, DOUGLAS R. EVANS, PURSUANT TO GOVERNMENT CODE SECTION 54956.8 CONCERNING POTENTIAL TERMS AND CONDITIONS OF ACQUISITION AND/OR DISPOSITION OF REAL PROPERTIES IDENTIFIED AS APNs: 773-370-028 AND -029, SILVERHAWK APARTMENT HOMES. PROPERTY OWNER/NEGOTIATOR: G COMPANIES, JAMES C. GIANULIAS. '1 1 Redevelopment Agency Agenda 1 May 20, 2008 2. CONFERENCE WITH AGENCY'S REAL PROPERTY NEGOTIATOR, DOUGLAS R. EVANS, PURSUANT TO GOVERNMENT CODE SECTION 54956.8 CONCERNING POTENTIAL TERMS AND CONDITIONS OF ACQUISITION AND/OR DISPOSITION OF REAL PROPERTY LOCATED AT THE SOUTHEAST CORNER OF MILES AVENUE AND WASHINGTON STREET. PROPERTY OWNERS/NEGOTIATORS: LENNAR DESERT VILLAS DEVELOPMENT, GARY GLAZER; CP DEVELOPMENT LA QUINTA LLC, RICHARD OLIPHANT; THE DOLPHIN PARTNERS, KEVIN PITTS; HIBACHI RESTAURANTS, HUY VU; AND ASHWOOD CONSTRUCTION, INC., STEVEN L. FROBERG. RECESS TO CLOSED SESSION RECONVENE AT 4:00 P.M. 4:00 P.M. PUBLIC COMMENT At this time members of the public may address the Redevelopment Agency on any matter not listed on the agenda. Please complete a "request to speak" form and limit your comments to three minutes. CONFIRMATION OF AGENDA APPROVAL OF MINUTES 1. APPROVAL OF MINUTES OF MAY 6, 2008. CONSENT CALENDAR NOTE: Consent Calendar items are considered to be routine in nature and will be approved by one motion. 1. APPROVAL OF DEMAND REGISTER DATED MAY 20, 2008. 2. RECEIVE AND FILE TREASURER'S REPORT DATED MARCH 31, 2008. 3. RECEIVE AND FILE REVENUE & EXPENDITURES REPORT DATED MARCH 31, 2008. Redevelopment Agency Agenda 2 May 20, 2008 4. APPROVAL OF AN ASSIGNMENT AND ASSUMPTION AGREEMENT BY AND AMONG CP DEVELOPMENT LA QUINTA, LLC, AND HUY VU (HIBACHI RESTAURANT) FOR PROPERTY LOCATED AT THE SOUTHEAST CORNER OF WASHINGTON STREET AND MILES AVENUE. 5. APPROVAL OF AN AGREEMENT FOR DEPOSIT OF FUNDS BY AND AMONG THE CITY OF LA QUINTA, THE LA QUINTA REDEVELOPMENT AGENCY, LENNAR HOMES OF CALIFORNIA, AND DOLPHIN LA QUINTA, LLC, AND AN ASSIGNMENT AND ASSUMPTION AGREEMENT FOR PROPERTY LOCATED WITHIN THE CENTRE POINTE DEVELOPMENT AT THE SOUTHEAST CORNER OF WASHINGTON STREET AND MILES AVENUE. BUSINESS SESSION - NONE STUDY SESSION - NONE CHAIR AND BOARD MEMBERS' ITEMS - NONE PUBLIC HEARINGS - NONE ADJOURNMENT An adjourned meeting of the Redevelopment Agency will be held on May 21, 2008, at 5:30 p.m. in the City Council Chambers, 78-495 Calle Tampico, La Quinta, CA 92253. The next regular meeting of the Redevelopment Agency will be held on June 2, 2008, commencing with closed session at 3:00 p.m. and open session at 4:00 p.m. at the same location. DECLARATION OF POSTING I, Veronica Montecino, City Clerk of the City of La Quinta, do hereby declare that the foregoing agenda for the La Quinta Redevelopment Agency meeting of May 20, 2008, was posted on the outside entry to the Council Chamber at 78-495 Calle Tampico and on the bulletin boards at 51-321 Avenida Bermudas and 78-630 Highway 111, on May 16, 2008. DATED: /May 16, 2008 VERONICA . MONTECINO, City Clerk City of La uinta, California 3 Redevelopment Agency Agenda 3 May 20, 2008 (k"' *DFIZ" D COUNCIL/RDA MEETING DATE: May 20, 2008 ITEM TITLE: Demand Register Dated May 20, 2008 RECOMMENDATION: It is recommended the Redevelopment Agency Board: Receive and File the Demand Register Dated May 20, 2008 of which $371,195.78 represents Redevelopment Agency Expenditures AGENDA CATEGORY: fffW*1QI�XSy *.I.M430 CONSENT CALENDAR STUDY SESSION PUBLIC HEARING PLEASE SEE CONSENT CALENDAR ITEM NUMBER 1 ON CITY COUNCIL AGENDA T-af 4 4 a" COUNCIL/RDA MEETING DATE: May 20, 2008 ITEM TITLE: Receive and File Transmittal of Treasurer's Report as of March 31, 2008 AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: h STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: It is recommended the La Quinta Redevelopment Agency: Receive and File the Treasurer's Report as of March 31, 2008. PLEASE SEE BUSINESS SESSION ITEM ON CITY COUNCIL AGENDA 5 AGENDA CATEGORY: COUNCIL/RDA MEETING DATE: May 20, 2008 _ ITEM TITLE: Receive and File Transmittal of Revenue and BUSINESS SESSION: Expenditure Report for March 31, 2008 CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: RECOMMENDATION: Receive and File BACKGROUND AND OVERVIEW: Transmittal of the March 31, 2008 State of Revenue and Expenditures for the La Quinta Redevelopment Agency. Respectfully submitted, John M. Falconer, Finance Director Approved for submission by: Thomas P. Genovese, Executive Director Attachment: 1. Revenue and Expenditures Report, March 31, 2008 A l l HGHIVItIV I I LA QUINTA REDEVELOPMENT AGENCY REVENUE SUMMARY PROJECT AREA NO. 1: rE BOND FUND: Allocated Interest Home Sale Proceeds Non Allocated Interest Transfer In TOTAL LOWIMOD BOND LOWIMODERATE TAX FUND: Tax Increment Allocated Interest Non Allocated Interest Miscellaneous revenue Non Allocated Interest LQRP-Rent Revenue Home Sales Proceeds Sale of Land Sewer Subsidy Reimbursements Rehabilitation Loan Repayments 2nd Trust Deed Repayment Transfer in TOTAL LOW/MOD TAX DEBT SERVICE FUND: Tax Increment Allocated Interest Non Allocated Interest Imerst - County Loan Interest Advance Proceeds Transfers In TOTAL DEBT SERVICE 0710112007 - 0313112008 REMAINING % BUDGET RECEIVED BUDGET RECEIVED 000 0.00 0.00 0.000% 000 000 000 0000% 000 000 000 0.000% 0.00 000 0.00 0000% 0.00 0.00 0.00 0 000 % 11,166,237.00 5,384,28239 5,781,95461 48220% 404,80000 (43,882.37) 448,682.37 -10.840% 000 1,062.01 (1,06201) 0.000% 125,000.00 125.000.00 000 100.000% 0.00 0.00 000 0.000% 252,000.00 203,962A5 48.03785 80940% 150,000.00 158,060.85 (8,060 BS) 105.370% 0.00 0 00 000 0.000 % 4,000.00 4,458.28 (45828) 111.460% 0.00 000 000 0.000% 350,O13D.00 340.230.48 9,76952 97.210% 313 156.00 313 156.00 000 100.000% 12,765,193.00 6.486,32979 6,278,86321 50810% 44.664,949.00 21,537,12970 23,127,819.30 48220% 596,100.00 543.50684 52,59316 91180% 0.00 000 000 0.000% 0.00 0.00 000 0.090% 0.00 0.00 000 0.000% 4,504,06T00 4,557,989 74 (53,90274) 101.200% 49,765,136.00 26.638,626.28 23,126,50972 53.530% CAPITAL IMPROVEMENT FUND - NON-TAXABLE Pooled Cash Allocated Interest 337,900.00 451,58506 (113,68506) 133.640% Non Allocated Interest 750,000.00 521,60760 228,39240 69550% Developer Agreement Funding 0.00 201,379 DO (201,379,00) 0.000% Sale of Land Proceeds 0.00 000 0.00 0000% Rental Income 000 000 000 0.000% Transfers In 25000,000.00 25,000000.00 000 100.000% TOTAL CAPITAL IMPROVEMENT 26,087,900.00 26,174,571.66 (86,671 66) 100.330% CAPITAL IMPROVEMENT FUND -TAXABLE Pooled Cash Allocated Interest 0.00 000 000 0.000% Non Allocated Interest 0.00 0.00 000 0.000% Litigation Settlement Revenue 0.00 0.00 0.00 0000% Bond proceeds 0.00 000 000 0 000% Rental Income 0.00 000 0.00 0000% Transfers In 0.00 000 000 0 000 % TOTAL CAPITAL IMPROVEMENT 0.00 000 000 0000% I✓ 1 2 LA QUINTA REDEVELOPMENT AGENCY EXPENDITURE SUMMARY PROJECT AREA NO. 1: 07101/2007 - 03/3112008 REMAINING BUDGET EXPENDITURES ENCUMBERED BUDGET LOWIMODERATE BOND FUND PERSONNEL 000 000 0.00 0.00 SERVICES 0.00 000 000 0.00 REIMBURSEMENT TO GEN FUND 0.00 000 0.00 000 HOUSING PROJECTS 0.00 000 000 0.00 TRANSFERS OUT 0.00 0.00 000 0.00 TOTAL LOWIMOD BOND O.uo 000 ocu 0.00 LOW/MODERATE TAX FUND: PERSONNEL ,.00 80515 000 294.85 SERVICES 396,099098.00 242,28000 0.00 153,.09.06 BUILDINGRENTAL 0.00 082 000 00 PRIZONSOGRAM LQ RENTAL PROGRAM 225,000.00 191,82082 000 ,179 TRUST DEED PROGRAM 276,127.0D 191,050.00 000 33.95000 LA18 70,276,127.00 5,886,222 000 4179040 17 FORECLOSURE FORECLND OSURE 95281 89,352.32 000 338. 47.19 REIMBURSEMENT TO GEN FUND 652,47100 652,47100 488,35232 000 163,11868 163,71868 TRANSFERS OUT 450408700 4517983174 000 (5390274) TOTAL LOWIMOD TAX 1G,B-'9;88dTJIf—�U58035T6' 993DD'SF DEBT SERVICE FUND: SERVICES 000 BOND PRINCIPAL 514,57900 3,514,57900 795,00000 000 19,57.02 71(026)0 BOND INTEREST 7,500.55326 7,772,55326 000 (026) INTER EST CITY ADVANCE INTEREST 1,020,000.00 1,901,66200 0.00 247,271.23 PASS THROUGH PAYMENTS 23,9D1,88000 246,95249 12,246,95049 000 09 11,6000957 ERAF SHIFT 000 000 000 000 TRANSFERS OUT 2897096000 28970960.20 0.00 —000 (020) TOTAL DEBT SERVICE-853G5,05d-00 57,85333.1i 1T T_T_,€193L CAPITAL IMPROVEMENT FUND: PERSONNEL ,00 805.15 000 294.85 SERVICES 1,015,979 00 532,60304 32,05000 451,32532596 LAND ACQUISITION 0.00 000 0.00 000 ASSESSMENT DISTRICT 000 0.00 0.00 000 ADVERTISING -ECONOMIC DEV 000 000 0.00 000 ECONOMIC DEVELOPMENT 0.00 000 0.00 0.00 BOND ISSUANCE COSTS 0.00 0.00 0.00 000 CAPITAL -BUILDING 10,00000 000 0.00 10,000.00 REIMBURSEMENT TO GEN FUND 311,03300 233,27388 000 77,75912 TRANSFERS OUT 63, 158,06800 2,853,09942 000 60,204,968.5E TOTAL CAPITAL IMPROVEMENT51 CAPITAL IMPROVEMENT FUNDITAXABLE BOND BOND ISSUANCE COSTS 000 000 000 0.00 TRANSFERS OUT 000 000 000 0.00 TOTAL CAPITAL IMPROVEMENT LA QUINTA REDEVELOPMENT AGENCY 07/0112007 - 03131/2008 REMAINING % REVENUE SUMMARY BUDGET RECEIVED BUDGET RECEIVED PROJECT AREA NO.2: LOWIMODERATE BOND FUND: Allocated Interest 0.00 000 000 0000% Non Allocated Interest 0.00 0.00 000 0000% Bond proceeds (net) 0.00 0.00 000 0.000 % Transfer In 0.00 0.00 000 0.000% TOTAL LOWIMOD BOND coo 0.00 0.00 0.ODO% LOWIMODERATE TAX FUND: Tax Increment 5,701.66000 2,928.58&01 2,773,07199 51360% Allocated Interest 400,00000 329,440.53 70,55947 62360% Non Allocated Interest DDO 000 000 0 000 % Developer funding 0.00 0.00 000 0000% Vista Dunes MHP Rental Rev 0.00 0.00 000 0.000 % 2nd Trust Deed Repayment 75,ODO.00 59,21900 15,781 00 78.960% ERAF Shift - Imerest 000 0.00 0.00 0.000% Sale of Land 352,687.00 352,687.00 000 100000% MiraBores Note Repayment 52,200.00 56,198.D0 (3,99&00) 107660% Transfer In 9.378.966.00 937896600 0.00 100000% TOTAL LOWIMOD TAX 15.960,51300 13,105,098.54 2,855,414.46 82110% 2004 LOWIMODERATE BOND FUND: Allocated Interest 0 OD 000 000 0000% Home Sale Proceeds 0.00 0.00 0.00 0.000% Non Allocated Interest 2,0(30,000.00 1,354,550.88 645.44912 67.730% Transferin 000 0.00 0.00 0.000% TOTAL LOWIMOD BOND 2,ODD,00000 1,354,55088 645,449.12 67.730% DEBT SERVICE FUND: Tax Increment 22,806.64000 11,714,35197 11,092,288.03 51.360% Allocated Interest 300,000.00 283,302.40 16,69760 94430% Non Allocated Interest 000 0.00 0.00 0.000% Interest Advance Proceeds 000 000 0.00 0,000% Transfer In 1,955,846.00 1,955,1146.05 (005) 100.1)00% TOTAL DEBT SERVICE 25,062,486.00 13,953,50042 11,108,98558 55.670% CAPITAL IMPROVEMENT FUND: Allocated Interest 80,000.00 82.41508 (2,41508) 103020% Non Allocated Interest 0.00 0.00 ODD 0000% Developer Agreement 0.00 000 000 0000% Trensfers In 0.00 0.00 000 0000% TOTAL CAPITAL IMPROVEMENT 80.000 00 82,415 08 (2,415 08) 103 020 % 0 LA QUINTA REDEVELOPMENT AGENCY EXPENDITURE SUMMARY PROJECT AREA NO. 2: LOWIMODERATE BOND FUND 07/01/2007 - 03/3112008 REMAINING BUDGET EXPENDITURES ENCUMBERED BUDGET 2nd TRUST DEEDS 000 0.00 000 000 LAND 0.00 0.00 0.00 000 BOND ISSUANCE COSTS 000 0.00 000 000 TRANSFERS OUT 0.00 0.00 0.00 000 TOTAL LOWIMOD BOND LOWIMODERATE TAX FUND: PERSONNEL 700.00 487.24 000 21276 SERVICES 664,082.00 273,672.41 000 390,409.59 2ND TRUST DEEDS 0.00 000 0.00 0.00 LOW MOD HOUSING PROJECTS 12,012 00 12,012 00 000 0.00 FORECLOSURE ACQUISITION 100,000.00 0.00 000 100,00000 WATERCOLOR COURT HOMES 4,500,000.00 3,753,100 00 0.00 746,900.00 LAND ACQUISITION 333,555.00 78,15700 0.00 255,398.00 REIMBURSEMENT TO GEN FUND 356,505.00 267.37794 000 89,127.06 TRANSFERS OUT 7,386,430.00 2,774,09802 000 4,672,3319' TOTAL LOW/MOD TAX BONDFUND HOUSING PROGRAMS 3,200,00000 0.00 000 3,200,00000 LAND 0.00 000 000 0.00 TRANSFERS OUT 33,684,23600 124017,107.16 000 21,277,128.84 TOTAL LOWIMOD BONG DEBT SERVICE FUND: SERVICES 176,10000 192,109.12 000 (16,009A2) BOND PRINCIPAL 110,00000 110,000.00 0.00 0.00 BONDINTEREST 310,135.00 310,13500 0.00 000 INTEREST CITY ADVANCE 1,350,000.00 961,78308 0.00 388,216.92 PASS THROUGH PAYMENTS 18,688,40600 9,546,73429 0.00 9,141,671.71 TRANSFERS OUT 11,334,812 00 11 334 812.05 0.00 (0 05) TOTAL DEBT SERVICE 3T,969,d53.00--Z2355,5 d b4 Ono CAPITAL IMPROVEMENT FUND: PERSONNEL 70000 48696 000 213.04 SERVICES 242,09400 81,96761 0.00 160,12639 ADVERTISING -ECONOMIC DEV 0.00 000 0.00 000 ECONOMIC DEVELOPMENT ACTIVITY 0.00 000 0.00 0.00 REIMBURSEMENT TO GEN FUND 25,291 00 18,967.86 0.00 6,32314 TRANSFERS OUT 473.004.00 117, 108 18 000 355.897 82 TOTAL CAPITAL IMPROVEMENT • ., 10 5 COUNCIL/RDA MEETING DATE: Mav 20, 2008 ITEM TITLE: Approval of an Assignment and Assumption Agreement by and Between CP Development La Quinta, LLC, and Huy Vu (Hibachi Restaurant) for Property Located at the Southeast Corner of Washington Street and Miles Avenue RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve an Assignment and Assumption Agreement by and CP Development La Quinta, LLC, and Huy Vu (Hibachi Restaurant) for Property Located at the Southeast Corner of Washington Street and Miles Avenue, and authorize the Executive Director to execute the agreement. (Attachment 1) FISCAL IMPLICATIONS: None for this action. BACKGROUND AND OVERVIEW: On December 18, 2003, the La Quinta Redevelopment Agency entered into a Disposition and Development Agreement ("DDA") with CP Development La Quinta, LLC for the sale and development of approximately 50 acres located at the southeast corner of Washington Street and Miles Avenue. The development includes a multi -use commercial and residential project consisting of the following: a medical office/surgical facility; two sit-down restaurants; a mid -price suites hotel; sanctuary villas; resort -style condom inium/casitas development; and two single-family residential developments, with forty (40) homes restricted for sale to eligible buyers at an affordable housing cost. To date, the Homewood Suites Hotel has opened; 44 casitas units have been constructed; Eisenhower Medical Center is moving forward with its first medical office building; and Applebee's has purchased one of the two restaurant parcels, and is under construction. 11 CP Development La Quinta, LLC has negotiated a sales agreement with Mr. Huy Vu, owner of Hibachi Restaurant, for the .91 acre restaurant parcel ("Parcel 1 Restaurant") located at the southeast corner of Washington Street and Miles Avenue. This sale requires City and Agency consent to assign all DDA and DA rights and obligations specific to this parcel to Hibachi Restaurant. The Schedule of Performance applicable to the Parcel 1 Restaurant has also been amended, and is attached for the Agency Board's information (Attachment 2). The amended Schedule of Performance will be included Amendment Number 7 to the Disposition and Development Agreement, which will come before the Agency Board at a later date. FINDINGS AND ALTERNATIVES: The alternatives available to the Agency Board include: 1. Approve an Assignment and Assumption Agreement by and Between CP Development La Quinta, LLC, and Huy Vu (Hibachi Restaurant) for Property Located at the Southeast Corner of Washington Street and Miles Avenue, and authorize the Executive Director to execute the agreement; or 2. Do not approve an Assignment and Assumption Agreement by and Between CP Development La Quinta, LLC, and Huy Vu (Hibachi Restaurant) for Property Located at the Southeast Corner of Washington Street and Miles Avenue, and do not authorize the Executive Director to execute the agreement; or 3. Provide staff with alternative direction. Respectfully submitted, Douglas VEvans Assistant City Manager — Development Services Approved for submission by: Thomas P. Genovese, Executive Director Attachment: 1. Assignment and Assumption Agreement 2. Draft Schedule of Performance 12 ATTACHMENT REQUESTED BY AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency 78-495 Calle Tampico La Quinta, CA 92253 Attn: Exempt From Recording Fee Pursuant to ASSIGNMENT AND ASSUMPTION AGREEMENT This Assignment and Assumption Agreement ("Assignment") is entered into this _ day of 2008 by and between CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Assignor") and Huy Vu, an individual (referred to hereinafter as "Assignee") with reference to the following: A. WHEREAS, Assignor is the owner in fee simple of certain property located at the southeast corner of Miles Avenue and Washington Street in the City of La Quinta, California (the "Property"), which Property is more particularly described on Exhibit "A" attached hereto and incorporated herein by this reference. B. WHEREAS, Assignor acquired the Property from the La Quinta Redevelopment Agency, a public body, corporate and politic ("Agency") pursuant to the terms of that certain Disposition and Development Agreement dated on or about December 18, 2003 ("Original DDA"), as amended on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 19, 2008 (collectively the "DDA Amendments"). (The Original DDA, as modified by the DDA Amendments shall hereinafter be referred to as the "DDA".) C. WHEREAS, Concurrently with the execution of the Original DDA, the Agency and Assignor entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside on January 5, 2004 as Instrument No. 2004-0005256, and amended by that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004 and recorded in the Official Records of the County Recorder for the County of Riverside on November 8, 2004 as Instrument No. 2004-0885063, and by that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005 and recorded in the Official Records of the County Recorder for the County of Riverside on December 19, 2005 as Instrument No. 2005-1045418, and by that certain Amendment No. 3 to the Development Agreement executed on or about May 6, 2008 and recorded in the Official Records of the County Recorder for the County of Riverside prior to or concurrent herewith (hereinafter collectively referred to as the "Development Agreement.") 13 D. WHEREAS, pursuant to the terms of the DDA and the Development Agreement, the Property was to be used for a mixed use development project (the "Project"), including a restaurant ("Restaurant") to be built on that portion of the Property described on Exhibit "B" attached hereto and incorporated herein by this reference ("Restaurant Property"). E. WHEREAS, Assignor now desires to transfer the Restaurant Property to Assignee, and concurrently therewith, to transfer to Assignee all of Assignor's rights and responsibilities under the DDA and the Development Agreement to the extent that such rights and responsibilities relate to the Restaurant and Restaurant Property. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. As of the "Effective Date" (as that term is defined in Section 4 below) of this Assignment, Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under the terms of the DDA and the Development Agreement, but only to the extent that such rights and responsibilities relate to the Restaurant and/or Restaurant Property (collectively, the "Assigned Rights and Obligations".) 2. Assignee hereby accepts the foregoing assignment of the Assigned Rights and Obligations, and agrees to be bound by the terms of the DDA and the Development Agreement to the extent that such terms relate to the Restaurant and/or the Restaurant Property. 3. The parties hereto acknowledge and agree that Assignee shall not be responsible for any of the obligations of the DDA or the Development Agreement which arise from ownership of any portion of the Property prior to the Effective Date hereof, or which arise from any portion of the Property other than the Restaurant Property after the Effective Date hereof. As such, a default by Assignor under either the DDA or the Development Agreement prior to the Effective Date hereof, or with respect to any portion of the Property other than the Restaurant Property after the Effective Date hereof ("Assignor's Default") shall not be deemed a default by Assignee, and Assignor shall indemnify, defend and hold harmless Assignee from any and all losses, claims or liability, including without limitation reasonable attorneys' fees and costs, arising from an Assignor's Default. A default by Assignee under either the DDA or the Development Agreement with respect to the Restaurant and/or Restaurant Property after the Effective Date hereof ("Assignee's Default") shall not be deemed a default by Assignor, and Assignee shall indemnify, defend and hold harmless Assignor from any and all losses, claims or liability, including without limitation reasonable attorneys' fees and costs, arising from an Assignee's Default. 4. Nothing herein or in the DDA or DA constitutes a representation or warranty by the Agency that the construction of the Restaurant on the Restaurant Property is not subject to California Health and Safety Code Sections 33423 through 33426, 14 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 Assignee expressly waives any right of reimbursement for any "increased costs" under California Labor Code Section 1781 or otherwise with respect to the Restaurant or the Restaurant Property. Assignee shall, indemnify, defend, and hold the Agency harmless, including litigation costs and reasonable attorneys' fees, from and against any and all claims pertaining to the payment of wages for the Restaurant and/or the Restaurant Property. 5. The City and the Agency shall be deemed to be third party beneficiaries of the waiver and indemnity set forth in Section 4 and the warranty and representation set forth in Section 7. 6. This Assignment shall be deemed effective upon the last of the following events to occur: (a) conveyance of the Restaurant Property to Assignee as evidenced by the recording of the grant deed therefor in the Official Records of the County Recorder for the County of Riverside, California, and (b) the written consent to this Assignment by the City with respect to the Assigned Rights and Obligations arising under the Development Agreement, and by the Agency with respect to the Assigned Rights and Obligations arising under the DDA (herein referred to as the "Effective Date"). 7. The parties hereto each warrant and represent that they have taken all necessary corporate action to authorize the execution and performance of this Assignment and that the individuals executing this document on behalf of the parties are authorized to do so, and by doing so, create binding obligations as described herein of the party represented. 8. The terms of this Assignment shall not be amended and this Assignment shall not be terminated except by written instrument executed by both of the parties hereto, and only upon the prior written consent of the City and Agency. 9. This Assignment shall be governed by the internal laws of the State of California, without regard to conflict of law principles. [End — Signature page follows] 15 WHEREFOR, the parties hereto have executed this Assignment on the date first written above. ASSIGNOR: CP Development La Quinta, LLC A California limited liability company By: Oliphant Family Trust Its: Member By: Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President ASSIGNEE: Huy Vu, an individual Huy Vu 16 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 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. State of California ) County of ) On before me, Public, (seal) Notary (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) 17 CONSENT By execution below, the Agency and City hereby consent to the foregoing assignment. LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Agency Counsel CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California By: Its: ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney City Manager 18 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY PARCELS 1 AND 3 OF PARCEL MAP NO. 31116 IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS SHOWN BY MAP ON FILE IN BOOK 212 AT PAGES 60 THROUGH 66, INCLUSIVE, OF PARCEL MAPS, RIVERSIDE COUNTY RECORDS AS INSTRUMENT NO. 2005-0262238. AND PARCEL B OF LOT LINE ADJUSTMENT 2006-452 BEING PARCEL 8 AND A PORTION OF PARCEL 7 OF PARCEL MAP NO. 31116 AS SHOWN BY MAP ON FILE IN BOOK 212 AT PAGES 60 THROUGH 66, INCLUSIVE, OF PARCEL MAPS, RIVERSIDE COUNTY RECORDS IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, AS RECORDED ON APRIL 19, 2006 AS INSTRUMENT NO. 0280726. 19 EXHIBIT `B" LEGAL DESCRIPTION OF RESTAURANT PROPERTY PARCEL 1 OF PARCEL MAP NO. 31116, FILED ON APRIL 4, 2005, IN BOOK 212 OF PARCEL MAPS, AT PAGES 60-66, AS INSTRUMENT NO.2005-0262238. 20 ATTACHMENT 2 DRAFT SCHEDULE OF PERFORMANCE FOR PARCEL I RESTAURANT Item of Performance Time for Completion 1. Developer execution of DDA amendment. Within 7 days after Developer and Agency approve final draft. 2. Developer's submission of complete Site On or before August 18, 2008. Development Permit Application (SDPA) and Lot Line Adjustment or Parcel Merger request for Restaurant Parcel 1 which will include: • Detailed Site Plan • Floor Plans and Layout • Elevations • Conceptual Landscaping • Grading Plan 3. Review of Parcel 1 SDPA and Lot Line Agency will use reasonable efforts to cause such Adjustment or Parcel Merger request by review within 21 days after Developer's submittal applicable City departments. (City staff to of Parcel 1 SDPA and Lot Line Adjustment or approve Lot Line Adjustment or Parcel Parcel Merger request. Mer er reQuest.) 4. Agency response to Developer as to City Within 7 days after Agency's receipt of City's comments on Parcel 1 SDPA. final comments on applications. 5. Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 6. Agency publishes Notice of Public Within 10 days after City responds to Developer's Hearing for the Parcel 1 SDPA before the comments regarding the Parcel 1 SDPA. Planning Commission. 7. Planning Commission's Public Hearing Approximately 10 days after first publication of and consideration of Parcel 1 SDPA. notice of the same. 8. City Council's consideration of SDPA. Within 30 days after Planning Commission approval of the Parcel 1 SDPA. 9. City's issuance for Parcel 1 SDPA and Within 7 days after approval of Parcel 1 SDPA by conditions. both Planning Commission and City Council. 10. Developer's preparation of Precise Within 45 days after City issues Parcel 1 SDPA. Grading Plan and Construction Drawings for Restaurant Parcel 1. 11. Developer's submission of (i) evidence of Within 30 days after Developer's completion of financing necessary to complete Parcel 1 Precise Grading Plans and Construction Drawings Restaurant, and (ii) Precise Grading and for the Parcel 1 Restaurant. Building Permit Applications for Restaurant Parcel 1. 21 Item of Performance Time for Completion 12. City's issuance of grading permit for Within 42 days after City's receipt of Building Restaurant Parcel 1. Permit Application for Restaurant Parcel 1. 13. City's issuance of Building Permit for Within 50 days after receipt of building permit Parcel 1 Restaurant. application for Parcel 1 Restaurant.. 14. Developer commences construction of Within thirty (30) days after City's issuance of Parcel 1 Restaurant. building permits for Parcel 1 Restaurant. 15. Completion of Parcel 1 Restaurant. Within 9 months after City's issuance of building permits for Parcel 1 Restaurant. * 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. 22 T:ey'4 fP'a" COUNCIL/RDA MEETING DATE: May 20, 2008 ITEM TITLE: Approval of an Agreement for Deposit of Funds by and Among the City of La Quinta, the La Quinta Redevelopment Agency, Lennar Homes of California, and Dolphin La Quinta, LLC and an Assignment and Assumption Agreement for Property Located within the Centre Pointe Development at the Southeast Corner of Washington Street and Miles Avenue RECOMMENDATION: AGENDA CATEGORY: BUSINESS SESSION: CONSENT CALENDAR: STUDY SESSION: PUBLIC HEARING: Approve an Agreement for the Deposit of Funds by and among the City of La Quinta, the La Quinta Redevelopment Agency, CP Development La Quinta, LLC, Lennar Homes of California, and Dolphin La Quinta, LLC and an Assignment and Assumption Agreement for Property Located within the Centre Pointe Development at the Southeast Corner of Washington Street and Miles Avenue, and authorize the Executive Director to execute the agreement. FISCAL IMPLICATIONS: None for this action. BACKGROUND AND OVERVIEW: On December 18, 2003, the La Quinta Redevelopment Agency entered into a Disposition and Development Agreement ("DDA") with CP Development La Quinta, LLC for the sale and development of approximately 50 acres located at the southeast corner of Washington Street and Miles Avenue. The development, called "Centre Pointe" includes a multi -use commercial and residential project consisting of the following: a medical office/surgical facility; two sit-down restaurants; a mid -price suites hotel; sanctuary villas; resort -style condominium/casitas development; and two single-family residential developments, with forty (40) homes restricted for sale to eligible buyers at an affordable housing cost. To date, the Homewood Suites Hotel has opened; 44 casitas units have been constructed; Eisenhower Medical Center is moving forward with its first medical office building; and Applebee's has purchased one of the two restaurant parcels, and is under construction. 23 Lennar has been negotiating the sale of its holdings within the Centre Pointe project with Dolphin La Quinta, LLC. Lennar's holdings include the completed 44-unit casitas development (40 units east of the Homewood Suites, and four units northwest of the Homewood Suites), and another vacant parcel along Miles Avenue. (A site map is included as Attachment 1.) The sales transaction is scheduled to close on May 28, 2008. Dolphin La Quinta, LLC has agreed to deposit $400,000 into an escrow account; these funds guarantee Dolphin La Quinta, LLC's performance, and would be released when certain conditions are met. In addition, this sale requires City and Agency consent to assign all DDA and DA rights and obligations specific to these parcels. An Agreement for the Deposit of Funds detailing the performance requirements, as well as the Assignment and Assumption Agreement, are included as Attachment 2. Dolphin La Quinta, LLC is working with staff to amend the Schedule of Performance and other project components. These changes will require Disposition and Development Agreement and Development Agreement amendments. These amendments will come before the Agency Board at a later date. FINDINGS AND ALTERNATIVES: The alternatives available to the Agency Board include: Approve an Agreement for the Deposit of Funds by and among the City of La Quinta, the La Quinta Redevelopment Agency, CP Development La Quinta, LLC, Lennar Homes of California, and Dolphin La Quinta, LLC and an Assignment and Assumption Agreement for Property Located within the Centre Pointe Development at the Southeast Corner of Washington Street and Miles Avenue, and authorize the Executive Director to execute the agreement; or 2. Do not pprove an Agreement for the Deposit of Funds by and among the City of La Quinta, the La Quinta Redevelopment Agency, CP Development La Quinta, LLC, Lennar Homes of California, and Dolphin La Quinta, LLC, and an Assignment and Assumption Agreement for Property Located within the Centre Pointe Development at the Southeast Corner of Washington Street and Miles Avenue, and do not authorize the Executive Director to execute the agreement; or 3. Provide staff with alternative direction. 24 Respectfully submitted, �. Douglas R. Ev ns Assistant City Manager — Development Services Approved for submission by: Thomas P. Genovese, Executive Director Attachments: 1. Site Map 2. Assignment and Assumption Agreement 25 ATTACHMENT 1 Lennar/Dolphin Parcels PARCEL MAP ❑ PARCELS +�,�,. PM28833 `IMPORTANT' This information Is made available through the Riverside County Geographic Information System. The information is for reference purposes only. It is Intended to be used as base level Information only and is not intended to replace any recorded documents or other public records. Contact appropriate County Department or Agency if necessary. Reference to recorded documents and public records may be necessary and is advisable. REPORT PRINTED ON ... Thu May 15 16:07:13 2008 • 26 http://www3.tlma.co.riverside.ca.us/pa/rclis/print.htm ATTACHMENT 2 AGREEMENT FOR DEPOSIT OF FUNDS This AGREEMENT FOR DEPOSIT OF FUNDS ("Agreement") is made and entered into as of , 2008 (the "Effective Date") by and among LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"), CITY OF LA QUINTA, a California municipal corporation and charter city, organized and existing under the Constitution of the State of California ("City"), Lennar Homes of California ("Lennar"), and DOLPHIN LA QUINTA, LLC, a California limited liability company ("Dolphin"). Agency, City, Lennar and Dolphin are sometimes individually referred to herein as a "Party" and collectively referred to herein as the "Parties." RECITALS: A. On or about December 18, 2003, the Agency and CP Development La Quinta, LLC ("CP") entered into that certain Disposition and Development Agreement (the "Original DDA"), pursuant to which Agency sold to CP that certain real property located southeast of the Miles Avenue and Washington Street intersection in the City of La Quinta, California 92253 (the "Property") and CP agreed to construct, complete, and operate thereon a commercial project containing, among other components, a mid -price suites hotel (the "Suites Hotel") and a resort - style condominium/casitas development (the "Casitas Development"). B. The Original DDA has been amended on six (6) occasions, on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 23, 2008 (collectively, the "Prior DDA Amendments"). The Original DDA, as amended by the Prior Amendments, is hereinafter referred to as the "DDA." C. Concurrently with the execution of the Original DDA, the City and CP entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside (the "Official Records") on January 5, 2004, as Instrument No. 2004-0005256 (the "Original DX'). Agency and CP have amended the Original DA on three (3) prior occasions, pursuant to that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004, and recorded in the Official Records on November 8, 2004, as Instrument No. 2004-0885063, that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005, and recorded in the Official Records on December 19, 2005, as Instrument No. 2005-1045418, and that certain Amendment No. 3 to Development Agreement executed on or about May 6, 2008 and recorded in the Official Records on 2008 as Instrument No. (collectively, the "Prior DA Amendments") The Original DA, as amended by the Prior DA Amendments, is hereinafter referred to as the "DA." D. Pursuant to the Prior DDA Amendments and Prior DA Amendments CP was permitted to, and did, (1) sell to Lennar that portion of the Property described as Parcel 2 of Parcel Map 31116 ("Parcel 2") and (ii) assign its rights and obligations under the DDA and DA with respect to Parcel 2 and the portion of the Casitas Development to be constructed on Parcel 2 8821015610-0107 , V V 2 902956 05 a05/16/08 (the "Parcel 2 Casitas Development") to Lennar. Parcel 2 is more particularly described in Exhibit "A", which is attached hereto and incorporated herein by this reference. E. Lennar has developed forty (40) condominium/casitas units on Parcel 2 (the "Completed Casitas Units"). Lennar has also developed four (4) additional condominium/casitas units that do not yet have approved certificates of occupancy. Pursuant to the DDA, the DA, and the entitlements previously issued by the City in connection with the Parcel 2 Casitas Development, Lennar is required to develop a total of one hundred thirty-two (132) condominium/casitas units on Parcel 2. Lennar has failed to complete the entire Parcel 2 Casitas Development by December 31, 2007, as required by the DDA. F. Lennar has entered into a purchase and sale agreement with Dolphin, pursuant to which Lennar has agreed to sell to Dolphin Parcel 2 (the "Parcel 2 Purchase Agreement"). Lennar has indicated that it will only close escrow on the sale of Parcel 2 to Dolphin if the City and Agency agree to waive their right to condition their approval of such sale upon payment by Lennar to the City and/or Agency of half of Lennar's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA (collectively, the "Sales Proceeds Provisions"). G. Dolphin has indicated its intent to prepare and process through the City new designs and plans for Parcel 2, in accordance with the schedule attached hereto and incorporated herein as Exhibit B" (the "Dolphin Performance Schedule"). H. Agency, City and Dolphin mutually interpret Sections 3.4.10 of the DA and 309.2 of the DDA restricting changes in the assessed value of any of the Property to apply only after completion of development of the Property or a "Phase of Development" (as that term is defined in the DDA). As of the Effective Date, the Casitas Development has not been wholly completed, such that neither the DA nor the DDA prevent the reassessment of Parcel 2 upon Lennar's sale of Parcel 2 to Dolphin I. Agency, City, Lennar, and Dolphin now wish to set forth the terms and conditions pursuant to which Agency and City will (i) consent to Lennar's sale and transfer to Dolphin of all of Lennar's rights and obligations under the DDA and DA with respect to Parcel 2, the Parcel 2 Casitas Development, and all associated public and private improvements and amenities to be developed as part of the Parcel 2 Casitas Development (collectively, the "Parcel 2 Casitas Obligations"); and (ii) waive their rights under the Sales Proceeds Provisions. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by all of the Parties, the Parties hereto agree as follows: 1. Within three (3) days after the Effective Date, Dolphin and Agency shall open an escrow account (the "Escrow") with the escrow agent (the "Escrow Agent") handling the closing under the Parcel 2 Purchase Agreement (the "Parcel 2 Closing"). Concurrently with the Parcel Closing, Dolphin shall deposit into the Escrow Four Hundred Thousand Dollars 982/015610-0107 • •.� t.' 2 902956.05 a05/16/09 -2- ($400,000.00) (the "Performance Deposit"). The Escrow Agent shall deposit the Performance Deposit in an interest bearing account. The Performance Deposit shall be disbursed to Dolphin or retained by City pursuant to the following: a. The Escrow Agent shall disburse the Performance Deposit to Dolphin upon the occurrence of any one of the following, by the time stated therefor: i) Prior to September 30, 2008, the Completed Casitas Units are owned by CP or an entity in which CP or Dick Oliphant retains a minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains management and control. ii) Prior to September 30, 2008, Dolphin and CP close escrow on a land "swap" pursuant to which Dolphin conveys to CP certain real property that is adjacent to CP's restaurant parcel fronting on Washington Street in exchange for CP conveying to Dolphin certain real property located at the corner of Miles Avenue and Seeley Drive. b. The Escrow Agent shall disburse fifty percent (50%) of the Performance Deposit to Dolphin upon City's approval of a Site Development Permit Application for the remainder of the Parcel 2 Casitas Development or some alternative development, provided such approval is obtained by the earlier of (i) prior to April 1, 2010; or (ii) within eighteen (18) months after meaningful negotiations have broken down between Dolphin and CP with respect to the transactions described in paragraphs a(i) and a(ii) of this Section 1. Dolphin shall provide written updates to City concerning the status of such negotiations at least once every two (2) weeks, and, upon City's request therefore, Dolphin shall provide City with documentary evidence that such negotiations are still proceeding. In the event that following such a request for documentary evidence by City Dolphin fails to provide satisfactory evidence, in the reasonable discretion of the City Manager, that the negotiations are still proceeding, the eighteen (18) month period described in clause (ii) of this paragraph shall commence. C. The Escrow Agent shall disburse fifty percent (50%) of the Performance Deposit to Dolphin upon City's issuance of building permits for the remainder of the Parcel 2 Casitas Development or some alternative development. In the event that at the close of the eighteen (18) month period described in lb above (as such eighteen (18) month period may commence as a result of the failure of Dolphin to provide satisfactory evidence to City that negotiations with CP are proceeding) Dolphin has not satisfied any of Ia(i), Ia(ii) or b, within the applicable time stated above, the Escrow Agent shall disburse the Performance Deposit to the Agency unless before such time this Agreement has been modified by the Parties hereto. 2. Dolphin and Agency shall prepare and provide to Escrow Agent escrow instructions mutually acceptable to both Dolphin and Agency which incorporate and address all of the provisions in Section 1 above. 3. Concurrently with the Parcel 2 Closing, Lennar and Dolphin shall provide Agency and City with an assignment and assumption agreement in the form attached hereto and incorporated herein as Exhibit "C" that has been executed by Lennar and Dolphin, pursuant to 8821015610-0107 'J 29 902956 05 a05/16/08 -3- which Lennar assigns to Dolphin and Dolphin assumes and agrees to be bound by all of the terms and conditions in the DDA and DA applicable to Parcel and the Parcel Casitas Obligations 4. Agency and City hereby waive their rights under the Sale Proceeds Provisions with respect to the sale of Parcel 2 by Lennar to Dolphin pursuant to the Parcel 2 Purchase Agreement. The City and Agency retain all rights with respect to any other transaction. 5. Dolphin shall complete all obligations set forth in the Dolphin Performance Schedule within the times set forth therein. 6. Nothing herein or in the DDA or DA constitutes a representation or warranty by Agency or City that the construction of the Parcel 2 Casitas Development or any portion thereof is not 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 Dolphin expressly waives any right of reimbursement for any "increased costs" under California Labor Code Section 1781 or otherwise with respect to Parcel 2 or the Parcel 2 Casitas Development. Dolphin shall, indemnify, defend, and hold Agency and City harmless, including litigation costs and reasonable attorneys' fees, from and against any and all claims pertaining to the payment of wages for Parcel 2 or the Parcel 2 Casitas Development. 7. Except as expressly provided in Section 4 above, nothing in this Agreement is intended to modify any provision in the DDA or DA. 8. In the event of any action between or amongst the Parties hereto seeking enforcement of any of the terms and conditions to this Agreement, 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. 9. This Agreement shall be construed according to its fair meaning and as if prepared by all of the Parties hereto. 10. This Agreement shall be governed by the internal laws of the State of California without regard to conflict of law principles 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 Agreement. Service of process on Agency or City shall be made in accordance with California law. Service of process on Lennar or Dolphin shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 11. Time is of the essence of this Agreement and of each and every term and provision hereof. 12. 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 the Party 882/015610-0107 • •U .. 30 902956.05 a05/I6/08 -4- granting the waiver. 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. 13. This Agreement may be executed in counterparts, each of which, when this Agreement has been signed by all the Parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 14. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. [End -- signature page follows] 882/015610-0107 _5_ _ 3 1 902956.05 a05/16/08 IN WITNESS WHEREOF, Agency, City, CP, and Dolphin each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above. "Dolphin" DOLPHIN LA QUINTA, LLC, a California limited liability company 2008 By: Its: By: Its: "Lennar" LENNAR HOMES OF CALIFORNIA INC., a California corporation Date: 12008 By: Its: "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic Date: 12008 By: Executive Director Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency [Signatures continued on next page] 882/015610-0107 , V 32 902956.05 a05116108 -6- Date: 12008 ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney "City" CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California By: Its: City Manager 8821015610-0107 - - 33 902956 05 a05/16/08 -7- EXHIBIT "A" LEGAL DESCRIPTION OF PARCEL 2 PARCEL 2 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO 66, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 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 PROPERTY OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137 OFFICIAL RECORDS. 882/015610-0107 Exhibit "A,> 34 902956 05 a05/16/09 EXHIBIT `B" DOLPHIN PERFORMANCE SCHEDULE [See attached pages] 882/015610-0107 902956 05 a05/16/08 Exhibit `B 35 THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS Item of Performance Time for Completlon** 1 City approval of Agreement and execution of Not later than May 21, 2008. same. 2 Dolphin closes escrow with Lennar and acquires Not later than June 30, 2008, per the Third fee title to Parcel 2. Amendment to the Purchase & Sale Agreement between Dolphin and Lennar. 3 Developer and Agency execution of amendments Within three (3) months after the commencement o to DA and DDA. the eighteen (18) period described inSectionlb of the Agreement (as such eighteen (18) month period may commence as a result of the failure of Dolphin to provide satisfactory evidence to City that negotiations with CP are proceeding). 4 Developer submission of complete Site Within 180 days after Effective Date of DDA Development Permit Application "SDPA", which amendment. will include: Detailed Site Plan; Floor Plans and Layout; Elevations; Conceptual Landscaping; Master Grading Plan; and Tract Map. 5 Review of SDPA by all applicable City Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submittal o SDPA. 6 Agency response to Developer as to City Within 7 days after Agency's receipt of City's final comments on SDPA. comments, but no later than 30 days after Developer's submission of SDPA. 7 Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 8 City publishes Notice of Public Hearing before the Within 20 days after City responds to Developer's Planning Commission. comments in the preceding section. 9 Planning Commission Public Hearing and Approximately 10 days after City responds to consideration of SDPA and Tract Map. Developer's comments in the preceding section. 10 City Council consideration of SDPA and Tract Approximately 21 days after Planning Commission Map. approval. 11 City's issuance of SDPA, Tract Map and Within sixty (60) days from City's receipt o conditions. Developer's SDPA. 12 Developer's submission of (i) evidence of financing necessary to complete units, and (ii) Within 30 days after Developer's completion of Precise Grading and Building Permit Precise Grading Plans and Construction Drawings Applications. for the Parcel 1 Restaurant. 36 THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS 13 Developer's submission of building permit Within 120 days of Agency's approval of SDPA. applications for rental unit development. 14 City's issuance of building permits for the Within 90-120 days from submission of complete se development of the rental units. of construction documents including grading plans. 15 Developer commences construction of the rental Within 60 days after Developer's receipt of building unit development permits for the rental unit development. 16 Completion of the rental unit development. Within eighteen (18) months of City's formal approval of SDPA. *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. 37 EXHIBIT "C" ASSIGNMENT AND ASSUMPTION AGREEMENT [See following pages] 882/015610-0o107 38 902956.05 a05/16/09 Exhibit "C RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: LENNAR HOMES OF CALIFORNIA, INC. Attn: ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment') is entered into this _ day of , 2008 (the "Effective Date") by and between LENNAR HOMES OF CALIFORNIA, INC., a California corporation ("Assignor") and DOLPHIN LA QUINTA, LLC, a California limited liability company ("Assignee") with reference to the following: A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-245 Seeley Drive, in the City of La Quinta, California ("Parcel 2"). Parcel is more particularly described on Exhibit "A", which is attached hereto and incorporated herein by this reference. B. WHEREAS, pursuant to the terms of that certain Disposition and Development Agreement entered into by and between the Assignee and the La Quinta Redevelopment Agency, a public body, corporate and politic ("Agency") on or about December 18, 2003, as amended on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 23, 2008 (as amended, the "DDA"), the Agency conveyed Parcel 2 and certain adjacent real property to CP Development La Quinta, LLC, a California limited liability company ("CP"). C. WHEREAS, subsequent to its acquisition of Parcel 2, CP conveyed Parcel 2 and assigned all of its rights and obligations with respect to Parcel 2, to Assignor. D. WHEREAS, concurrently with the execution of the DDA, the City of La Quinta ("City") and CP entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside (the "Official Records") on January 5, 2004, as Instrument No. 2004-0005256, as amended by that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004, and recorded in the Official Records on November 8, 2004, as Instrument No. 2004-0885063, that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005, and recorded in the Official Records on December 19, 2005, as Instrument No. 2005-1045418, and that certain Amendment No. 3 to Development Agreement executed on or about , 2008, and recorded in the Official Records on 2008, as Instrument No. (as amended, the "DA"). 39 832/015610-0107 902956 05 a05/16/08 ' 1' E. WHEREAS, pursuant to the terms of the DDA and DA and all entitlements issued in connection therewith, Assignor is required to develop on Parcel 2 one hundred thirty-two (132) condominium/casitas units and associated public and private improvements and amenities (collectively, the "Parcel 2 Casitas Development"). F. WHEREAS, Assignor has developed forty (40) condominium/casitas units on Parcel 2, and now wishes to transfer and assign to Assignee all of its rights and obligations under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Development (collectively, the "Parcel 2 Casitas Obligations"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations from and after the Effective Date. 2. Assignee hereby accepts the foregoing assignment of all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations, and agrees to be bound by the terms of the DDA and DA with respect to all of such rights and responsibilities from and after the Effective Date. 3. The parties hereto each warrant and represent that they have taken all necessary corporate action to authorize the execution and performance of this Assignment and that the individuals executing this document on behalf of the parties are authorized to do so, and by doing so, create binding obligations as described herein of the party represented. 4. The terms of this Assignment shall not be amended and this Assignment shall not be terminated except by written instrument executed by both of the parties hereto, and only upon the prior written consent of the City and Agency. 5. This Assignment shall be governed by the internal laws of the State of California, without regard to conflict of law principles. 6. Any defined terms used but not defined herein shall have the same meaning as in the DDA. By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. [End — signatures on next page] 892/015610-0107 • - 40 902956.05 a05/16/08 -2- above. WHEREFORE, the parties hereto have executed this Assignment on the date first written "Assignor" LENNAR HOMES OF CALIFORNIA INC., a California corporation 10 Its: "Assignee" DOLPHIN LA QUINTA, LLC, a California limited liability company By: Its: 882/015610.0107 • . 1 41 902956.05 a05/16/09 -3- 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 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) 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 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) 112/015610-0107 42 902956A5 a05/16/08 -4- CONSENT By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California By: Its: FAMW N City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney City Manager 892/015610-0107 • 43 902956.05 a05/16/08 -5- 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 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) 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 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) 882/015610-0107 902956 05 a05/16/08 -6- EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY PARCEL 2 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO 66, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 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 PROPERTY OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137 OFFICIAL RECORDS. 45 882/015610-0107 902956.05 a05/16/09 Exhibit "A" T4ht 4 4 Quilt& MEMORANDUM TO: Honorable Mayor and Members of the City Council FROM: Douglas R. Evans, Assistant City, anager — Development Services, via �� Thomas P. Genovese, City Manager �G DATE: May 20, 2008 SUBJECT: City Council Consent Item #20 and RDA Consent Item #5 The City Attorney/Agency Counsel has made minor changes to the Agreement for Deposit of Funds narrative, page 3. A redline of the narrative is included with this memo as Attachment 1. The changes in the narrative more accurately reflect the dates contained within the Schedule of Performance (Attachment 2). ATTACHMENT 1 ($400,000.00) (the "Performance Deposit"). The Escrow Agent shall deposit the Performance Deposit in an interest bearing account. The Performance Deposit shall be disbursed to Dolphin or retained by City pursuant to the following: a. The Escrow Agent shall disburse the Performance Deposit to Dolphin upon the occurrence of any one of the following. by the time stated therefor: i) Prior to September 30, 2008, the Completed Casitas Units are owned by CP or an entity in which CP or Dick Oliphant retains a minimum of fifty-one percent (51%) of the ownership or beneficial interest and retains management and control. ii) Prior to September 30, 2008, Dolphin and CP close escrow on a land "swap" pursuant to which Dolphin conveys to CP certain real property that is adjacent to CP's restaurant parcel fronting on Washington Street in exchange for CP conveying to Dolphin certain real property located at the corner of Miles Avenue and Seeley Drive. b. The Escrow Agent shall disburse fifty percent (50%) of the Performance Deposit to Dolphin upon City's approval of a Site Development Permit Application for the remainder of the Parcel 2 Casitas Development or some alternative development. provided such approval is obtained by the earlier of (i) prior to April 1, 2010; or (ii) within e+ghkeer eleven (18D months after meaningful negotiations have broken down between Dolphin and CP with respect to the transactions described in paragraphs a(i) and a(ii) of this Section 1. Dolphin shall provide written updates to City concerning the status of such negotiations at least once every two (2) weeks, and, upon City's request therefore, Dolphin shall provide City with documentary evidence that such negotiations are still proceeding. In the event that following such a request for documentary evidence by City Dolphin fails to provide satisfactory evidence, in the reasonable discretion of the City Manager, that the negotiations are still proceeding, the eigltte=erteleven (1&I 1) month period described in clause (ii) of this paragraph shall commence. e date stiche�even (1 I 1 month ueriod cult �mences shul� be referred to hereinafter as the "SDPA Commencement Date" C. The Escrow Agent shall disburse fifty, percent (50%) of the Performance Deposit to Dolphin upon City's issuance of building permits for the remainder of the Parcel 2 Casitas Development or some alternative development provided such issuance occurs within eighteen. I8) months after the SDPA Commencement Date. In the event that at the close of the eighteen (18) month period described in 1 b above (as %eh eighteen (1 g) month periOd nvaV as a reSidI MAW failure of DOIJ)hitt 10 providc klEe ka=av lene�+e { +ky tk v�atiatior u-ith f f--arm ecc i t}c above Dolphin has not satisfied any of la(i), la(ii)„ Ib, or k-1:ic within the applicable time stated above, the Escrow Agent shall disburse the Performance Deposit to the Agency unless before such time this Agreement has been modified by the Parties hereto. 2. Dolphin and Agency shall prepare and provide to Escrow Agent escrow instructions mutually acceptable to both Dolphin and Agency which incorporate and address all of the provisions in Section I above. 88301 ki 10,0101 0ti'Pl. O0'_9$4.Q6 nU5G:n2)i0y `�— ATTACHMENT 2 THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS Item of Performance Time for Completion** 1 City approval of Agreement and execution of Not later than May 21, 2008. same. 2 Dolphin closes escrow with Lennar and acquires Not later than June 30, 2008, per the Third fee title to Parcel 2. Amendment to the Purchase & Sale Agreement between Dolphin and Lennar. 3 Developer and Agency execution of amendments Within three (3) months after the commencement o to DA and DDA. the eighteen (18) period described inSectionlb of the Agreement (as such eighteen (18) month period may commence as a result of the failure of Dolphin to provide satisfactory evidence to City that negotiations with CP are proceeding). 4 Developer submission of complete Site Within 180 days after Effective Date of DDA Development Permit Application "SDPA", which amendment. will include: Detailed Site Plan; Floor Plans and Layout; Elevations; Conceptual Landscaping; Master Grading Plan; and Tract Map. 5 Review of SDPA by all applicable City Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submittal o SDPA. 6 Agency response to Developer as to City Within 7 days after Agency's receipt of City's final comments on SDPA. comments, but no later than 30 days after Developer's submission of SDPA. 7 Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 8 City publishes Notice of Public Hearing before the Within 20 days after City responds to Developer's Planning Commission. comments in the preceding section. 9 Planning Commission Public Hearing and Approximately 10 days after City responds to consideration of SDPA and Tract Map. Developer's comments in the preceding section. 10 City Council consideration of SDPA and Tract Approximately 21 days after Planning Commission Map. approval. 11 City's issuance of SDPA, Tract Map and Within sixty (60) days from City's receipt o conditions. Developer's SDPA. 12 Developer's submission of (i) evidence of financing necessary to complete units, and (ii) Within 30 days after Developer's completion of Precise Grading and Building Permit Precise Grading Plans and Construction Drawings Applications. for the Parcel 1 Restaurant. THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS 13 Developer's submission of building permit Within 120 days of Agency's approval of SDPA. applications for rental unit development. 14 City's issuance of building permits for the Within 60-90 days from submission of complete se development of the rental units. of construction documents including grading plans. 15 Developer commences construction of the rental Within 60 days after Developer's receipt of building unit development. permits for the rental unit development. 16 Completion of the rental unit development. Within eighteen (18) months of City's formal approval of SDPA. *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.