Apple Properties/DDA & DA Parcel 5 PM 31116APPLE PROPERTIES, LLC.
For DEVELOPMENT AGREEMENT and DISPOSITION AND DEVELOPMENT
AGREEMENT referred to in these documents, including all amendments, see
CP DEVELOPMENT LA QUINTA, LLC file.
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CP DEVELOPMENT LA QUINTA, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment') is
entered into this 23`d day of August, 2007 (the "Effective Date") by and between CP
DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Assignor") and
Apple Properties, LLC, a North Dakota limited liability company ("Assignee") with reference to
the following:
A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-
305 Seeley Drive, in the City of La Quinta, California, which is more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference ("Parcel 5').
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, and on or about the same date hereof (as amended, the "DDA'), the
Agency conveyed Parcel 5 and certain other adjacent real property to the Assignor.
C. WHEREAS, concurrently with the execution of the DDA, the City of La Quinta
("City") 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 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 (as amended, the "DA").
D. WHEREAS, pursuant to the terms of the DDA and DA, Parcel 5 is to be used for
the development of a full -service, sit-down style restaurant offering, at a minimum, lunch (the
"Parcel 5 Restaurant").
E. WHEREAS, Assignor now wishes to transfer and assign to Assignee all of its
rights and obligations under the DDA and DA with respect to Parcel 5 and the Parcel 5
Restaurant.
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NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under
the terms of the DDA and DA with respect to Parcel 5 and the Parcel 5 Restaurant (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 DA to the extent that
such terms affect or are affected by ownership of Parcel 5 and then only to the extent of
the Assigned Rights and Obligations.
3. The parties hereto acknowledge and agree that Assignee shall not be responsible for any
of the obligations of the DDA or DA which arise from ownership of any portion of Parcel
5 which arise prior to the Effective Date hereof As such, a default by Assignor under the
DDA or DA with respect to Parcel 5 or the Parcel 5 Restaurant prior to 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 the DDA or DA with respect to
Parcel or the Parcel 5 Restaurant 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 Parcel Restaurant 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 Assignee expressly waives any right of reimbursement for
any "increased costs" under California Labor Code Section 1781 or otherwise with
respect to Parcel 5 or the Parcel 5 Restaurant. 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 Parcel 5 or the
Parcel 5 Restaurant.
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
6.
6. 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.
982J015610.405
938332.01 &=16,W -2-
9. 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.
8. This Assignment shall be governed by the internal laws of the State of California,
without regard to conflict of law principles.
9. Any defined terms used but not defined herein shall have the same meaning as in the
DDA.
[Balance of page intentionally left blank.]
938332.01 aD& &W -3-
WHEREFORE, the patties 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 a By: ��t y c n
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"Assignee"
"Apple Properties, LLC, a North Dakota limited
liability company
By:
Myron Thompson
Its: President
8VAI5610-0085
839332.01 a0 I&W -4-
above.
WHEREFORE, the parties hereto have executed this Assignment on the date first written
"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"
"Apple Properties, LLC, a North Dakota limited
liability company,,
By./
M n ThomjSfion
Its: Predent
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State of California CALIFORNIA ALL-PURPOSE
Counryof _ K.�URe_aaPe� SS' CERTIFICATE OF ACKNOWLEDGMENT
On hlli * &\ t p��� before me, �bm 1C 6, q�• Tt OPM �Q�
Dale Printed Name of Notary Public
personally appeared
S?r personally known tome -or -
❑ proved to me on the basis of satisfactory evidence:
❑ form(s) of identification
❑ credible witness(es)
to be the personkrwhose namelOis/are-subscribed to the within instrument and acknowledged to me
that he/she*" executed the same in his/heNtheir authorized capacity(+es} and that by his/heW#veir
signatures} on the instrument the person(4, or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
CAI�ICER.BORCENA
C=Wft Ion f 1593376
Nokuy Ktft - calroiift .
RweWdeCoudy
QMVCamm.EtlpMeatAtn29,
Signature of Notary Public
(Seal)
OPTIONAL INFORMATION
Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this
acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of y
v
containingAL— pages, and dated
The signer(s) capacity or authority is/are as:
ndividual(s)
❑ Attorney -in -Fact
❑ Corporate Officer(s)
ntle(s)
❑ Guardiarr/Conservator
❑ Partner-Umited/General
❑ Trustee(s)
❑ Other.
representing:
Name(s) of Person(s) or. Enthy(les) Signer Is Representing
0 Copyright 2004 Notary Rotary, Inc 925 29th 5t.. Des Moines. IA 50312-3612 Form ACK02. 02/04. To re -order, call toll -free 1-821-349-6588 or visit us on the Internet at http9/wwwthenotaryshopcom
ACKNOWLEDGMENT
STATE OF NORTH DAKOTA )
) ss:
COUNTY OF WARD )
On Au a u s+ z, 0 2007, before me, Le a h & e . k %. c. , a Notary
Public person ll appeared ►� y m r� -%'Q t son , personally known to me to
be the person whose name is subscribed to the within instrument and acknowledged to
me that he executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
LEAN BJN PURtap .,t3..QR.4�1.�.Q.
No4ery WIc
state of Nonh Dakota
[my 1c;oMnZon
Nov. 4, 2009 Notary Public
CONSENT
By execution below, the City and Agency hereby consent to the foregoing assignment.
LA QUINTA REDEVELOPMENT AGENCY,
a public body, rate and politic
By: �. _—
Its: Executiv irector
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 haws of the State of
California -n
APPROVED TO FORM:
RUTAN & TUCKER, LLP
City Attorney
UM15610.0095
939332.01 aWnW -5-
CONSENT
By execution below, the City and Agency hereby consent to the foregoing assignment.
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Its:
04NJWI11
Agency Secretary
APPROVED AS TO FORM:
RUT N &TUCKSP
/��,
ttmeys fortKe La Quints Ldevelopment
Agency
Executive Director
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
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUT & T 7ft-,
ty Attorn y
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A:
PARCEL 5 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.
PARCEL B:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS LOT D (SEELEY
DRIVE) OF PARCEL MAP 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.
$3x�01�10-0065
$39332.01 EXHIBIT "A„
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