PCRES 2006-043PLANNING COMMISSION RESOLUTION 2006-043
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF LA QUINTA, CALIFORNIA, RECOMMENDING TO
THE CITY COUNCIL APPROVAL OF A DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF LA QUINTA
AND LOD SILVERROCK, LLC
CASE NO.: DEVELOPMENT AGREEMENT NO. 012
APPLICANT: LDD SILVERROCK, LLC
WHEREAS, the Planning Commission of the City of La Quinta, California,
(the "Planning Commission") did on the 14th of November, 2006, hold a duly noticed
Public Hearing to consider a proposed Development Agreement by and between the
City of La Quinta ("City") and LDD SilverRock, LLC, a Delaware limited liability
company (the "Development Agreement"), "); and,
WHEREAS, the SilverRock Specific Plan (Specific Plan 06-080), which
was amended by the City Council on July 18, 2006, by Resolution No. 2006-083,
complies with the requirements of The Rules to Implement the California Environmental
Quality Act of 1970" as amended. The Community Development Department
completed an Addendum to the previously prepared Mitigated Negative Declaration,
certified by the City Council on July 18, 2006, for the Specific Plan and Development
Agreement. No changed circumstances or conditions are proposed which would
trigger the preparation of subsequent environmental review pursuant to Public
Resources Code Section 21166; and,
WHEREAS, at said Public Hearing, upon hearing and considering all
testimony and arguments, if any, of all interested persons wanting to be heard, said
Planning Commission did make the following Mandatory Findings of approval to justify
a recommendation for approval of said Development Agreement:
1. The proposed Development Agreement is consistent with the objectives,
policies, general land uses and programs of the City of La Quinta General Plan
and Specific Plan 06-080.
2. The land uses authorized and regulations prescribed for the Development
Agreement are compatible with the zoning and its related regulations applicable
to the property.
3. The proposed Development Agreement conforms with public convenience and
the general welfare by providing for extensive public improvements and
conforms to good land use practice by encouraging a long-range,
comprehensive approach to the development of major hotel services and
commercial development.
Planning Commission Resolution 2006-043
Development Agreement 2006-012
Adopted: November 14, 2006
4. Approval of this Development Agreement will not be detrimental to the health,
safety, and general welfare since adequate provisions has been made in
previous City approvals to provide for necessary and desirable improvements
which are incorporated herein.
5. Approval of this Development Agreement will not adversely affect the orderly
development of the subject or surrounding property nor the preservation of area -
wide property values, but rather will enhance them by encouraging planned,
phased growth.
6. Consideration of the Development Agreement has been accomplished pursuant
to California Government Code Section 65864 et seq. and the City of La Quinta
Municipal Code Section 9.250.030, which governs Development Agreements.
NOW, THEREFORE, BE IT RESOLVED by the Planning Commission of the
City of La Quinta, California, as follows:
1. That the above recitations are true and constitute the findings of the Planning
Commission in this case;
2. That it does recommend approval to the City Council of Development
Agreement 2006-012, for the reasons set forth in this Resolution.
PASSED, APPROVED, and ADOPTED at a regular meeting of the La
Quinta City Planning Commission, held on the 14th day of November, 2006, by the
following vote, to wit:
AYES: Commissioners Alderson, Barrows, and Chairman Quill
NOES: None
ABSENT: Commissioners Daniels and Engle
ABSTAIN: None
PAUL QUILL, Chairman
City of La Quinta, California
ATTEST:
DOUGLAS .EVANS
Community Development Director
City of La Quinta, California
DRAFT
ATTACHMENT #1
RECORDING REQUESTED BY
AND WHEN RECORDED
MAIL TO
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Citv 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
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TABLE OF CONTENTS
Page
1.0 GENERAL
1.1
Term .........................................
1.2
Effective Date ...........................
1.3
Amendment or Cancellation....
1.4
Termination ..............................
1.5
Definitions ................................
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING
CONSTRUCTION OF THE PROJECT ........................................
2.1 Right to Develop................................................................
2.2 Additional Applicable Codes and Regulations ..................
2.3 Permitted Density, Height and Use Limitations ................
3.0 DEVELOPER'S OBLIGATIONS.....................................................................
3.1
Development and Operation of the Project ............................................
3.2
Conditions of Approval; Mitigation Monitoring Program .....................
3.3
Declaration of Covenants, Conditions and Restrictions ........................
3.3.1 Recordation of City Declaration of CC&Rs ..............................
3.4
Sign Agreements....................................................................................
3.5
Maintenance Agreements.......................................................................
3.6
Water Agreements..................................................................................
3.7 Other Fees and Charges; Assessment Appeals ....................................
3.8 Dedications and Improvements............................................................
3.9 Indemnification....................................................................................
3.10 Insurance..............................................................................................
4.0 CITY'S OBLIGATIONS................................................................................................12
4.1 Scope of Subsequent Review/Confirmation of Compliance Process.................12
4.2 Project Approvals Independent...........................................................................12
4.3 Review for Compliance.......................................................................................12
4.4 City Ground Lease..............................................................................................13
5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION ..........................................
5.1 Notice of Default.......................................................................................
5.2 Cure of Default..........................................................................................
5.3 City Remedies...........................................................................................
5.4 Developer's Exclusive Remedy................................................................
6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE .......................
6.1 Encumbrances on the Project Site............................................................
6.2 Mortgage Protection..................................................................................
6.3 Mortgagee Not Obligated..........................................................................
6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ..................
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7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT.........................................15
7.1
Transfers of Interest in Site or Agreement..........................................................15
7.1.1 Transfers of Interest in Site or Agreement Prior to Agency's
Issuance of a Release of Construction Covenants...................................15
7.1.2 Transfers of Operational Obligations......................................................16
7.1.3 Assignment and Assumption of Obligations..........................................16
7.2
Successors and Assigns.......................................................................................16
7.3
Assignment by City.............................................................................................17
8.0 MISCELLANEOUS.......................................................................................................17
8.1
Notices.................................................................................................................17
8.2
Force Majeure .....................................................................................................IS
8.3
Binding Effect.....................................................................................................18
8.4
Independent Entity..............................................................................................
is
8.5
Agreement Not to Benefit Third Parties.............................................................18
8.6
Covenants............................................................................................................18
8.7
Nonliability of City Officers and Employees.....................................................19
8.8
Covenant Against Discrimination.......................................................................19
8.9
Amendment of Agreement..................................................................................19
8.10
No Waiver...........................................................................................................
19
8.11
Severability. ........................................................................................................
19
8.12
Cooperation in Carrying Out Agreement............................................................19
8.13
Estoppel Certificate.............................................................................................20
8.14
Construction........................................................................................................20
8.15
Recordation.........................................................................................................20
8.16
Captions and References.....................................................................................20
8.17
Time....................................................................................................................20
8.18
Recitals & Exhibits Incorporated; Entire Agreement.........................................20
8.19
Exhibits...............................................................................................................21
8.20
Counterpart Signature Pages...............................................................................21
8.21
Authority to Execute...........................................................................................21
8.22
City Approvals and Actions................................................................................21
8.23
Governing Law; Litigation Matters....................................................................21
8.24
No Brokers..........................................................................................................22
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DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement') is entered into as of the day of
, 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 southeast 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 amended 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 "Revised 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");
and (vi) the conditions of approval associated with each and all of the foregoing approvals
(collectively, the "Conditions of Approval"). The documents described in the foregoing clauses
(i)-(vi) 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.
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
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enter into and record, against each Parcel a Declaration of Covenants, Conditions and
Restrictions that sets forth certain requirements of the owners of (a) the Condominium Hotel
Units to pay certain resort fees if their unit fails to generate specified levels of Transient
Occupancy Tax, and (b) the Fractional Units to pay a Resort Fee; (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 Property and
certain roadways, 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
extent to which Developer may construct, develop, use and operate the Project.
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 they
may proceed with development of the Project in accordance with the terms and conditions of this
Agreement and the Development Plan, all as more particularly set forth herein.
G. The City Council has determined that the Project and this Agreement are
consistent with the City's General Plan 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 2006, the City Council adopted its Ordinance No.
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:
1.0 GENERAL
1.1 Term.
The term of this Agreement shall commence on the Effective Date hereof and shall
continue for fifty (50) years thereafter, unless said term is otherwise terminated, modified, or
extended by circumstances 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.
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1.2 Effective Date.
This Agreement shall be effective, and the obligations of the parties hereunder shall be
effective, as of 2006, which is the date that Ordinance No. takes effect
("Effective Date").
1.3 Amendment or Cancellation.
Except as expressly stated to the contrary herein, this Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided for
in Government Code Section 65867-65868 and the City's Development Agreement Ordinance.
1.4 Termination.
Unless terminated earlier, pursuant to the terms hereof, this Agreement shall
automatically terminate and be of no further effect upon the expiration of the Term of this
Agreement as set forth in Section 1.1. 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.
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 set forth in the DDA, as such time may
be extended pursuant to the terms of the DDA, this Agreement shall automatically terminate and
the Developer and City agree to execute and record such document as the Title Company
(as defined in the DDA) reasonably requires to remove this Agreement of record.
1.5 Definitions.
1.5.1 "Agency" shall have the meaning ascribed in Recital C hereof.
1.5.2 "Black Box Parcel" shall mean that certain real property designated as
Lot _ on the Parcel Map. The Black Box Parcel is comprised of approximately
acres.
1.5.3 "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
acres. The Boutique Hotel Parcel may be subdivided into two or more legal
parcels after the Reference Date. In such event, when used herein, the terms "Boutique
Hotel Parcel" shall refer to all such legal parcels.
1.5.4 "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.
1.5.5 "City Declaration of CC&Rs" shall have the meaning ascribed in
Section 3.3.1 hereof.
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1.5.6 "City Ground Lease" shall mean the ground 1 pursuant to which the City
shall lease to Developer the Resort Retail Village Parcel. The form of the City Ground
Lease shall be negotiated between the parties and shall be approved by the City Attorney.
1.5.7 "Conditions of Approval" shall have the meaning ascribed in Recital C
hereof.
1.5.8 "Condominium Hotel Unit' means a Unit which is sold to an individual,
third party owner.
1.5.9 "CVWD" shall have the meaning ascribed in Section 3.6 hereof.
1.5.10 . "DDA" shall have the meaning ascribed in Recital C hereof.
1.5.11 "Developer" shall mean LDD SilverRock, LLC, a Delaware limited
liability company.
1.5.12 "Developer CC&Rs" shall have the meaning ascribed in Section 3.3.2
hereof.
1.5.13 "Development Agreement Act' shall have the meaning ascribed in
Recital A hereof.
1.5.14 "Development Agreement Ordinance" shall have the meaning ascribed
in Recital B hereof.
1.5.15 "Development Plan" shall have the meaning ascribed in Recital C
hereof.
1.5.16 "Existing Development Regulations" shall have the meaning ascribed in
Section 2.1 hereof.
1.5.17 "Fee Transfer Release Date" shall have the meaning ascribed in Section
7.1.1 hereof.
1.5.18 "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.
1.5.19 "Fractional Unit' means a Condominium Hotel Unit which is divided
into multiple fractional interests, including, without limitation, timeshare interests, each
of which can either be owned by a separate owner or by single owner, and each of which
gives such owner the right to use such Condominium Hotel Unit for a different period of
time.
1.5.20 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 seven tenths (8.7) acres.
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1.5.21 "Lake Casitas Parcel" shall mean that certain real property designated as
Lot _ on the Parcel Map. The Lake Casitas Parcel is comprised of approximately
acres.
1.5.22 "Lowe Enterprises" means Lowe Enterprises, Inc., a California
corporation, which is an affiliate of Developer.
1.5.23 "Management Transfer" shall have the meaning ascribed in Section
7.1.2 hereof.
1.5.24 "New Laws" shall have the meaning ascribed in Section 2.1 hereof.
1.5.25 "Operating Covenant Release Date" shall have the meaning ascribed in
Section 7.1.2 hereof.
1.5.26 "Parcel" shall mean any of the Boutique Hotel Parcel, Black Box Parcel,
Resort Hotel Parcel, Resort Retail Village Parcel, Golf Casitas Parcel, or Lake Casitas
Parcel.
1.5.27 "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 first closing contemplated under the DDA. A copy of
the Parcel Map is attached to the DDA as Attachment No. 11.
1.5.28 "Phase of Development" shall mean the component of the Project to be
constructed on a particular Parcel, as further described in the DDA.
1.5.29 "Project" shall have the meaning ascribed in Recital C hereof.
1.5.30 "Project Site Development Permits" shall have the meaning ascribed in
Recital C hereof.
1.5.31 "Reference Date" shall have the meaning ascribed in the preamble
hereof.
1.5.32 "Resort Hotel Parcel" means that certain real property designated as Lot
on the Parcel Map. The Resort Hotel Parcel is comprised of approximately _ acres.
1.5.33 "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 _ acres.
1.5.34 "Revised Mitigated Negative Declaration" shall have the meaning
ascribed in Recital C hereof.
1.5.35 "Site" shall have the meaning ascribed in Recital C hereof.
1.5.36 "Specific Plan" shall have the meaning ascribed in Recital C hereof.
1.5.37 "Term" shall have the meaning ascribed in Section 1.1 hereof.
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1.5.38 "Transfer" shall have the meaning ascribed in Section 7.1.1 hereof.
1.5.39 "Transient Occupancy Tax" shall have the meaning ascribed in Chapter
3.24 of the La Quinta Municipal Code.
1.5.40 "Unit" shall mean one of the approximately six hundred thirty (630)
guest units comprising the Project.
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 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 the
DDA; (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 certificate of occupancy for such Phase of Development or Parcel; or
(e) as to a particular Phase of Development, or a particular Parcel, the date set forth in the DDA
when Developer was required to have completed the development of all improvements of 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. Notwithstanding anything in
this Agreement to the contrary, 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 (collectively, the "Existing
Development Regulations");
(ii) all amendments or modifications to Existing Development Regulations
zfter the Reference 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 unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the
Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or
applied by the City (or if 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 reserves the right to apply under this Agreement, including but not limited to
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,
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(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 development of the Project:
2.2.1 Building, Electrical, Mechanical, Fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the La Quinta
Municipal Code, as existing on the Reference Date of this Agreement or as may be
enacted or amended thereafter, applied to the Project in a nondiscriminatory manner.
2.2.2 In the event of fire or other casualty requiring construction of more than
fifty (50%) percent of any building previously constructed hereunder, nothing herein
shall prevent the City from applying to such reconstruction all requirements of the City's
Building, Electrical, Mechanical, 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.
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 and this Agreement, whichever is the strictest.
3.0 DEVELOPER'S OBLIGATIONS
3.1 Development and Operation of the Project.
Developer shall construct the Project on the Site in accordance with the Development
Plan. Notwithstanding anything herein to the contrary, until the Operating Covenant Release
Date for each Phase of Development that includes Condominium Hotel Units, Developer or an
Authorized Manager shall retain full management and operational control over all components of
the Phase of Development, except for the individual Condominium Hotel Units that are sold to
third -party buyers. The Authorized Manager of the hotel and casitas to be developed on the
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Resort Hotel Parcel shall also be the Authorized Manager for the casitas to be developed on the
Golf Casitas Parcel and the Resort Casitas Parcel. Developer, on behalf of itself and any
Authorized Manager, covenants and agrees that until the Operating Covenant Release Date, each
of the Phases of Development that include Condominium Hotel Units shall be operated in a first
class, Four Star Quality condition. No more than once per year prior to the applicable Operating
Covenant Release Date, the City may select an independent consultant to perform a quality audit
of the foregoing Phases of Development for purposes of determining that the applicable Phase of
Development is substantially operating at a Four Star Quality. The then -owner of the applicable
Phase of Development shall reimburse the City for the costs of such audit
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 Revised 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 Agency's
conditions to closing under the DDA for any Parcel that will be developed with Condominium
Hotel Units and/or Fractional Units(a), Developer shall have entered into with the City and
recorded 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").
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 regimen 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 to pay
certain resort fees, as further set forth in the City Declaration of CC&Rs; 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.
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
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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 SilverRock.
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.
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 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 next sentence, 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 that it shall not take any action, 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 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.
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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 claims for property
damage which may arise from the acts, errors, and/or omissions of the Developer or its
contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to
the Project and/or this Agreement. The foregoing indemnity applies to all deaths, injuries, and
damages, and claims therefor, suffered or alleged to have been suffered by reason of the 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.
b. In the event of any court action or proceeding challenging the validity of this
Agreement or the Revised Mitigated Negative Declaration, 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 Revised Mitigated Negative Declaration, 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.
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:
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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 Reference 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
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resulting from the Developer's activities or the activities of any person or persons for which the
Developer is otherwise responsible.
4.0 CITY'S OBLIGATIONS
4.1 Scone of Subseuuent 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
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
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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.
4.4 City Ground Lease.
Pursuant to the DDA, the Agency may transfer the Parcel designated therein as the
"Resort Retail Village Parcel" to the City. In the event the Agency elects to so transfer, City
shall, concurrently with such transfer, enter into the Ground Lease. Notwithstanding anything to
the contrary herein, the Ground Lease shall be for a term of fifty-five (55) years, and shall
include the following rent schedule: [TO BE INSERTED]
5.0 DEFAULT: REMEDIES: DISPUTE RESOLUTION.
5.1 Notice of Default.
In the event of failure by either party hereto substantially to perform any material term or
provision of this Agreement, the non -defaulting party shall have those rights and remedies
provided herein, provided that such non -defaulting party has first provided to the defaulting party
a written notice of default in the manner required by Section 8.1 hereof identifying with
specificity the nature of the alleged default and the manner in which said default may
satisfactorily be cured.
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 an uncured default by Developer of the terms of this Agreement, the City,
at its option, may institute legal action in law or in equity to cure, correct, or remedy such
default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement;
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 or modify this Agreement pursuant to the City's Development
Agreement Ordinance and/or the Development Agreement Act, in which event the matter shall
be scheduled for consideration and review by the City Council in the manner set forth in the
City's Development Agreement Ordinance or the Development Agreement Act.
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5.4 Developer's Exclusive 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, 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.
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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 [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.
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT
7.1 Transfers of Interest in Site or Agreement. The qualifications and identity of the
Developer as the developer and operator of high quality commercial developments are of
particular concern to the City. Furthermore, the parties acknowledge that the Citiy 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. 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"), (a) no voluntary or involuntary
successor in interest of the Developer shall acquire any rights or powers under this
Agreement with respect to said Phase of Development, (b) 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 applicable Parcel or the Phase of Development
thereon (collectively referred to herein as a "Transfer"), except as provided in this
Section 7.1. 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:
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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 in which Developer or any entity
owned and controlled by Lowe Enterprises is a managing member or a manager, and has
day-to-day control over the operations of such transferee entity.
d. The sale by Developer of Condominium Hotel Units to third party buyers.
7.1.2 Transfers of Operational Obligations. Notwithstanding anything in
Section 7.1.1 to the contrary, until the tenth (10`h) anniversary of the date the Agency
issues a Release of Construction Covenants for each Phase of Development (the
"Operating Covenant Release Date"), Developer shall not make any Transfer of the
operational and/or managerial control of such Phase of Development (a "Management
Transfer"), without the prior written approval of the City. Notwithstanding the
foregoing, City approval shall not be required for a Management Transfer to any of the
following:
(1) Ritz Carlton;
(2) Four Seasons; and
(3)
City shall not unreasonably withhold, delay, or condition approval of a proposed
Management Transfer to an entity with similar experience and reputation for operating
high quality, luxury hotels to any of the entities listed in subparagraphs (1), (2), and (3)
above.
7.1.3 Assignment and Assumption of Obligations. In the event of a Transfer
by Developer under Section 7.1.l(a), (b), (c), or (d) above, or under Section 7.1.2 (1), (2),
or (3) above, not requiring the City's prior approval, Developer nevertheless agrees that
at least thirty (30) days prior to such Transfer it shall give written notice to City of such
assignment and satisfactory evidence that the assignee has assumed in writing through an
assignment and assumption agreement of all of the obligations of this Agreement. An
assignment and assumption agreement in form reasonably satisfactory to the City
Attorney shall also be required for all proposed Transfers requiring the City's approval.
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
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this Agreement, such term shall include any other permitted successors and assigns as herein
provided.
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: Community Development Director
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 Hallem
Telephone: (310) 312-4217
Facsimile: (310) 3124224
Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service, and shall be deemed received on the third
day from the date it is postmarked if delivered by registered or certified mail.
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8.2 Force Mai cure.
In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or failures to perform are due to
war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts
of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes,
governmental restrictions imposed or mandated by other governmental entities, governmental
restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools
necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another
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.
Times of performance under this Agreement may also be extended in writing by the City and the
Developer.
Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section
8.2 to an extension of time to perform because of past, present, or future difficulty in obtaining
suitable construction or permanent financing for the development of the Site, or because of
economic or market conditions.
8.3 Binding Effect.
This Agreement, and all of the terms and conditions hereof, shall be binding upon and
inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the
Site, and their respective assigns, heirs or successors in interest, whether or not any reference to
this Agreement is contained in the instrument by which such person acquired an interest in the
Project or the Site.
8.4 Independent Entity.
The parties acknowledge that, in entering into and performing this Agreement, each of
the Developer and the City is acting as an independent entity and not as an agent of the other in
any respect.
8.5 Agreement Not to Benefit Third Parties.
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.
8.6 Covenants.
The provisions of this Agreement shall constitute mutual covenants which shall run with
the land comprising the Site for the benefit thereof, and the burdens and benefits hereof shall
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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. §§ 1210 1, et seq.).
8.9 Amendment of Agreement.
This Agreement may be amended from time to time by mutual consent of the original
parties or such party to which the Developer assigns all or any portion of its interest in this
Agreement, in accordance with the provisions of the City's Development Agreement Ordinance
and Government Code Sections 65867 and 65868.
8.10 No Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the party against whom enforcement of a waiver is
sought and referring expressly to this Section. No delay or omission by either party in exercising
any right or power accruing upon non-compliance or failure to perform by the other party under
any of the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the
covenants or conditions to be performed by the other party shall be construed or deemed a
waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof.
8.11 Severabilitv.
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
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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.
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 and all of the exhibits and attachments to this Agreement
are, by this reference, incorporated into this Agreement and made a part hereof. This
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I77.aY
Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement, and this Agreement supersedes all
previous negotiations, discussions and agreements between the parties, and no parole evidence of
any prior or other agreement shall be permitted to contradict or vary the terms hereof.
8.19 Exhibits.
Exhibits "A" — "E" to which reference is made in this Agreement are deemed
appropriated 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
8.20 Counterpart Signature Pages.
For convenience the parties may execute and acknowledge this agreement in counterparts
and when, the separate signature pages are attached hereto, shall constitute one and the same
complete Agreement.
8.21 Authority to Execute.
Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly
authorized to execute and deliver this Agreement, (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound, and (v) there is no existing or threatened litigation
or legal proceeding of which Developer is aware which could prevent Developer from entering
into or performing its obligations set forth in this Agreement.
8.22 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
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DRAFT
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]
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DRAFT
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
M.
Its:
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DRAFT
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]
88210156IM084
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DRAFT
EXHIBIT "A-1"
LEGAL DESCRIPTION OF SITE
[To be inserted]
892/015610-0084
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DRAFT
EXHIBIT "A-2"
SITE MAP
[To be inserted]
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DRAFT
EXHIBIT "B"
DEPICTION OF PUBLIC IMPROVEMENTS
[To be inserted]
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EXHIBIT "C"
FOUR STAR QUALITY REQUIREMENTS
Four -Star Quality indicates an outstanding hotel providing the guest with a luxury
experience in a distinctive setting, including expanded amenities and exceptional service. Guests
at a Four Star Quality hotel or resort can expect to find all of the following characteristics:
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.
• 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.
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• 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.
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• 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).
• 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.
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• 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.
• 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).
• 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 minor present in room.
• A hairdryer present in room, clean and functional.
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• 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.
• ShavinWmakeup, 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.
• Tennis court surfaces are in good condition, free of damage and well -marked.
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• Tennis courts and surrounding areas are clean and free of debris.
• Fixtures, nets, lights, fences are well -maintained and good condition.
• 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.
• 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.
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• 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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EXHIBIT "D"
MITIGATION MONITORING PROGRAM
PROJECT MONITORING CHECKLIST
(CEQA Mitigation Measures)
[To be inserted]
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EXHIBIT "E"
FORM OF CITY DECLARATION OF CC&Rs
[To be inserted]
882/015610-0084
750537.03 al 1/09/06
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]
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