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2008 Lennar Homes - Assignment & Assumption Agrmt to Dolphin Parcel 2 PM 31116LENNAR HOMES OF CALIFORNIA, INC. For DEVELOPMENT AGREEMENT and DISPOSITION AND DEVELOPMENT AGREEMENT assumed by LENNAR including all amendments, see CP DEVELOPMENT LA QUINTA, LLC files. PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTEp BY: VERONICA J. MONTECINO City Clerk / Agency Secretary AND WHEN RECORDED MAIL TO: Veronica J. Montecino, CMC, City Clerk CITY OF LA QUINTA P. O. Box 1504 La Quinta, California 92247-1504 DOC # 2008-0411463 07/28/2008 08:00A Fee:NC Page 1 of I0 Recorded in Official Records County of Riverside Larry County Clerk d Recorder 1111111111111111111111111111111111111111111111111111111 S R I U I PAGE SIZE DA MISC LONG RFD COPY O A L 465 426 PCOR NCOR SMF NCH EXAM k�146 cc T: CTY UNI ASSIGNMENT AND ASSUMPTION AGREEMENT Lennar Homes of California, Inc., and Dolphin La Quinta, LLC (CP Development) Title of Document THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION 0 M U53 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Veronica J. Montecino, CMC, City Clerk CITY OF LA QUINTA P. O. Box 1504 La Quinta, CA 92247-1504 ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is entered into this 22nd day of May, 2008 (the "Effective Date") by and between LENNAR HOMES OF CALIFORNIA, INC., a California corporation ("Assignor") and DOLPHIN LA QUINTA, LLC, a California limited liability company ("Assignee") with reference to the following: A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-245 Seeley Drive, in the City of La Quinta, California ("Parcel 2"). Parcel is more particularly described on Exhibit "A", which is attached hereto and incorporated herein by this reference. B. WHEREAS, pursuant to the terms of that certain Disposition and Development Agreement entered into by and between the Assignee and the La Quinta Redevelopment Agency, a public body, corporate and politic ("Agency") on or about December 18, 2003, as amended on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 23, 2008 (as amended, the "DDA"), the Agency conveyed Parcel 2 and certain adjacent real property to CP Development La Quinta, LLC, a California limited liability company ("CP"). C. WHEREAS, subsequent to its acquisition of Parcel 2, CP conveyed Parcel 2 and assigned all of its rights and obligations with respect to Parcel 2, to Assignor. D. WHEREAS, concurrently with the execution of the DDA, the City of La Quinta ("City") and CP entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside (the "Official Records") on January 5, 2004, as Instrument No. 2004-0005256, as amended by that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004, and recorded in the Official Records on November 8, 2004, as Instrument No. 2004-0885063, that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005, and recorded in the Official Records on December 19, 2005, as Instrument No. 2005-1045418, and that certain Amendment No. 3 to Development Agreement executed on or about May 6, 2008, and recorded in the Official Records on June 4, 2008, as Instrument No. 2008-0303530 (as amended, the "DA"). 882/015610-0107 902956.05 a05/16/08 E. WHEREAS, pursuant to the terms of the DDA and DA and all entitlements issued in connection therewith, Assignor is required to develop on Parcel 2 one hundred thirty-two (132) condominium/casitas units and associated public and private improvements and amenities (collectively, the "Parcel 2 Casitas Development"). F. WHEREAS, Assignor has developed forty (40) condominium/casitas units on Parcel 2, and now wishes to transfer and assign to Assignee all of its rights and obligations under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Development (collectively, the "Parcel 2 Casitas Obligations"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations from and after the Effective Date. 2. Assignee hereby accepts the foregoing assignment of all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations, and agrees to be bound by the terms of the DDA and DA with respect to all of such rights and responsibilities from and after the Effective Date. 3. The parties hereto each warrant and represent that they have taken all necessary corporate action to authorize the execution and performance of this Assignment and that the individuals executing this document on behalf of the parties are authorized to do so, and by doing so, create binding obligations as described herein of the party represented. 4. The terms of this Assignment shall not be amended and this Assignment shall not be terminated except by written instrument executed by both of the parties hereto, and only upon the prior written consent of the City and Agency. 5. This Assignment shall be governed by the internal laws of the State of California, without regard to conflict of law principles. 6. Any defined terms used but not defined herein shall have the same meaning as in the DDA. By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. [End — signatures on next page] 8=015610-0107 902956.05 s05116108 -2- WHEREFORE, the parties hereto have executed this Assignment on the date first written above. "Assignor" LENNAR HOMES OF CALIFORNIA INC., a California corporation By: Its: fitwdW "Assignee" DOLPHIN LA QUINTA, LLC, a California limited liability company By: Its: 9921015610-0107 902956.05 e05/16/08 -3- State of California _ ) County of t td 1— On LAQA Lb , WOE' , beforeme, �SU6 `e �CAM( (,Q Notary Public, G1- j MCC, �e r name and title of the officer) - personallyappeared 1�J� . who proved to me on the basis o satisfactory evidence to be the persor(e)'whose name.W is/Are subscribed to the within instrument, and acknowledgA to me that licWaJtIvi executed the some in li ;el/theit authorized capacity(iprand that by hd/fiiVv signature(sron the instrument the person(s), or the entity upon behalf of which the person(,sruted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. State of California I County of ) before me, ----------------- ,Is?� ----------------- (here insert name and personally appeared who proved to me on the basis of satisfactory subscribed to the within instrument, and acknc in his/her/their authorized capacity(ies), and & person(s), or the entity upon behalf of w, i I certify under PENALTY OF foregoing paragraph is true an WITNESS my hand seal. Camn40bn • 170"16 ■W Meo ft Cow ! l Notary Public, vi7h�islherftheir the person(s) whose name(s) is/are vl that he/she/they executed the same signature(s) on the instrument the person(s) acted, executed the instrument under the laws of the State of California that the (sea]) saL01561"107 _4_ 902"6.05 a05/1"11 above. WHEREFORE, the parties hereto have executed this Assignment on the date first written "Assignor" LENNAR HOMES OF CALIFORNIA INC., a California corporation By: Its: "Assignee" DOLPH AAA, a Califo ' y By: Its: A+J�JL 882/015610-0107 _ 902956.05 a05/16/08 _3 State of Califprnia ) County of _) On 6 V goDe before me, Notary Public, (here Insert name and titl f the officer) personally appeared i Z666 2 who proved to me on the basis of satisfactory evidence to be the personWwhose name is/ere— subscribed to the within instrument, and acknowledged to me that he/shay executed the same in his^•, '�ir-authorized capacity(igs),-and that by hisAbcr-413eie signatureKon the instrument the person or the entity upon behalf of which the person ,(sf acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the foregoing paragraph is true and correct. WITNESS my hand and official seal. State of California County of On before me, (here insert name and title of the officer) California that the • 17MI7 . Ca01ae10 (seal) Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/015610-0107 902956,03 a05/15/08 -4- CONSENT By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. LA QUINTA REDEVELOPMENT AGENCY, a pu is body, corporate d p litic By. Its: Executive I`= -- • yr. APPROVED AS TO FORM: RUTAN & T C {ER;� P Attorneys for fhe La Quinta &development Agency CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of Cali€e niGa� Rv Its: City Manager APPROVED AS TO FORM: RUTAN & TUCI LJeP ity Attorhey 992MI5610-0107 -5- 902956.05 a05/16/08 State of Caljf5nia^ d ) County of ,/ On ✓�'� DO,P, before me, PAC�'/.lz / �>0'7fs lfe Y Notary Public, ere n1 name and title of the officer) personally appeared �%1��rr�/. S ;05&n D ✓e,SY_ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(o0 is/W subscribed to the within instrument, and acknowledged to me that he/oE/tbdy executed the same in his/kft&/tb& authorized capacity(ieg), and that by hisA*ItWk signature(o on the instrument the person(y), or the entity upon behalf of which the persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) State of California County of On before me, , Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) 882/015610-0107 902956.05 a05/16/08 -6- EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY PARCEL 2 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO 66, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PROPERTY OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137 OFFICIAL RECORDS. 882/015610-0107 Exhibit "A" 902956.05 e05/16/08 O`er" " ;p"k0A AGREEMENT FOR DEPOSIT OF FUNDS This AGREEMENT FOR DEPOSIT OF FUNDS ("Agreement') is made and entered into as of May 22, 2008 (the "Effective Date") by and among LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate arid politic ("Agency"), CITY OF LA QUINTA, a California municipal corporation and charter city, organized and existing under the Constitution of the State of California ("City"), Lennar Homes of California ("Lennar"), and DOLPHIN LA QUINTA, LLC, a California limited liability company ("Dolphin'). Agency, City, Lennar and Dolphin are sometimes individually referred to herein as a "Party" and .collectively referred to herein as the "Parties." RECITALS: A. On or about December 18, 2003, the Agency and CP Development La Quinta, LLC ("CP") entered into that certain Disposition and Development Agreement (the "Original DDA"), pursuant to which Agency sold to CP that certain real property located southeast of the Miles Avenue and Washington Street intersection in the City of La Quinta, California 92253 (the "Property") and CP agreed to construct, complete, and operate thereon a commercial project containing, among other components, a mid -price suites hotel (the "Suites Hotel") and a resort - style condominium/casitas development (the "Casitas Development'). B. The Original DDA has been amended on six (6) occasions, on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 23, 2008 (collectively, the "Prior DDA Amendments"). The Original DDA, as amended by the Prior Amendments, is hereinafter referred to as the "DDA." C. Concurrently with the execution of the Original DDA, the City and CP entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside (the "Official Records") on January 5, 2004, as Instrument No. 2004-0005256 (the "Original DA"). Agency and CP have amended the Original DA on three (3) prior occasions, pursuant to that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004, and recorded in the Official Records on November 8, 2004, as Instrument No. 2004-0885063, that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005, and recorded in the Official Records on December 19, 2005, as Instrument No. 2005-1045418, and that certain Amendment No. 3 to Development Agreement executed on or, about May 6, 2008 and recorded in the Official Records on June 4, 2008 as Instrument No. 2008-0303530 (collectively, the "Prior DA Amendments") The Original DA, as amended by the Prior DA Amendments, is hereinafter referred to as the "DA." D. Pursuant to the Prior DDA Amendments and Prior DA Amendments CP was permitted to, and did, (1) sell to Lennar that portion of the Property described as Parcel 2 of Parcel Map 31116 ("Parcel 2") and (ii) assign its rights and obligations under the DDA and DA with respect to Parcel 2 and the portion of the Casitas Development to be constructed on Parcel 2 882/015610-0107 902956 05 .06/12/08 (the "Parcel 2 Casitas Development") to Lerman Parcel 2 is more particularly described in Exhibit "A", which is attached hereto and incorporated herein by this reference. E. Lemur has developed forty (40) condominium/casitas units on Parcel 2 (the "Completed Casitas Units"). Lennar has also developed four (4) additional condominium/casitas units that do not yet have approved certificates of occupancy. Pursuant to the DDA, the DA, and the entitlements previously issued by the City in connection with the Parcel 2 Casitas Development, Lennar is required to develop a total of one hundred thirty-two (132) condominium/casitas units on Parcel 2. Lennar has failed to complete the entire Parcel 2 Casitas Development by December 31, 2007, as required by the DDA. F. Lennar has entered into a purchase and sale agreement with Dolphin, pursuant to which Lennar has agreed to sell to Dolphin Parcel 2 (the "Parcel 2 Purchase Agreement'. Lennar has indicated that it will only close escrow on the sale of Parcel 2 to Dolphin if the City and Agency agree to waive their right to condition their approval of such sale upon payment by Lennar to the City and/or Agency of half of Lennar's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA (collectively, the "Sales Proceeds Provisions'). G. Dolphin has indicated its intent to prepare and process through the City new designs and plans for Parcel 2, in accordance with the schedule attached hereto and incorporated herein as Exhibit B" (the "Dolphin Performance Schedule"). H. Agency, City and Dolphin mutually interpret Sections 3.4.10 of the DA and 309.2 of the DDA restricting changes in the assessed value of any of the Property to apply only after completion of development of the Property or a "Phase of Development" (as that term is defined in the DDA). As of the Effective Date, the Casitas Development has not been wholly completed, such that neither the DA nor the DDA prevent the reassessment of Parcel 2 upon Lennar's sale of Parcel 2 to Dolphin I. Agency, City, Lennar, and Dolphin now wish to set forth the terms and conditions pursuant to which Agency and City will (i) consent to Lennar's sale and transfer to Dolphin of all of Lennar's rights and obligations under the DDA and DA with respect to Parcel 2, the Parcel 2 Casitas Development, and all associated public and private improvements and amenities to be developed as part of the Parcel 2 Casitas Development (collectively, the "Parcel 2 Casitas Obligations"); and (ii) waive their rights under the Sales Proceeds Provisions. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by all of the Parties, the Parties hereto agree as follows: 1. Within three (3) days after the Effective Date, Dolphin and Agency shall open an escrow account (the "Escrow") with the escrow agent (the "Escrow Agent") handling the closing under the Parcel 2 Purchase Agreement (the "Parcel 2 Closing"). Concurrently with the Parcel Closing, Dolphin shall deposit into the Escrow Four Hundred Thousand Dollars 89MI5610-0107 902956.05 a05/16/08 -2- ($400,000.00) (the "Performance Deposit"). The Escrow Agent shall deposit the Performance Deposit in an interest bearing account. The Performance Deposit shall be disbursed to Dolphin or retained by City pursuant to the following: a. The Escrow Agent shall disburse the Performance Deposit to Dolphin upon the occurrence of any one of the following, by the time stated therefor: i) Prior to September 30, 2008, the Completed Casitas Units are owned by CP or an entity in which CP or Dick Oliphant retains a minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains management and control. ii) Prior to September 30, 2008, Dolphin and CP close escrow on a land "swap" pursuant to which Dolphin conveys to CP certain real property that is adjacent to CP's restaurant parcel fronting on Washington Street in exchange for CP conveying to Dolphin certain real property located at the comer of Miles Avenue and Seeley Drive. b. The Escrow Agent shall disburse fifty percent (50%) of the Performance Deposit to Dolphin upon City's approval of a Site Development Permit Application for the remainder of the Parcel 2 Casitas Development or some alternative development, provided such approval is obtained by the earlier of (i) prior to April 1, 2010; or (ii) within eleven (11) months after meaningful negotiations have broken down between Dolphin and CP with respect to the transactions described in paragraphs a(i) and a(ii) of this Section 1. Dolphin shall provide written updates to City concerning the status of such negotiations at least once every two (2) weeks, and, upon City's request therefore, Dolphin shall provide City with documentary evidence that such negotiations are still proceeding. In the event that following such a request for documentary evidence by City Dolphin fails to provide satisfactory evidence, in the reasonable discretion of the City Manager, that the negotiations are still proceeding, the eleven (11) month period described in clause (ii) of this paragraph shall commence. The date such eleven (11) month period commences shall be referred to hereinafter as the "SDPA Commencement Date". C. The Escrow Agent shall disburse fifty percent (50%) of the Performance Deposit to Dolphin upon City's issuance of building permits for the remainder of the Parcel 2 Casitas Development or some alternative development, provided such issuance occurs within eighteen (18) months after the SDPA Commencement Date. In the event that at the close of the eighteen (18) month period described in lc above Dolphin has not satisfied any of la(i), la(ii), lb, or lc within the applicable time stated above, the Escrow Agent shall disburse the Performance Deposit to the Agency unless before such time this Agreement has been modified by the Parties hereto. 2. Dolphin and Agency shall prepare and provide to Escrow Agent escrow instructions mutually acceptable to both Dolphin and Agency which incorporate and address all of the provisions in Section 1 above. 3. Concurrently with the Parcel 2 Closing, Lennar and Dolphin shall provide Agency and City with an assignment and assumption agreement in the form attached hereto and 882/0156IM107 902956.05 e05116/08 -3- incorporated herein as Exhibit "C" that has been executed by Lennar and Dolphin, pursuant to which Lennar assigns to Dolphin and Dolphin assumes and agrees to be bound by all of the terms and conditions in the DDA and DA applicable to Parcel and the Parcel Casitas Obligations 4. Agency and City hereby waive their rights under the Sale Proceeds Provisions with respect to the sale of Parcel 2 by Lennar to Dolphin pursuant to the Parcel Purchase Agreement. The City and Agency retain all rights with respect to any other transaction. 5. Dolphin shall complete all obligations set forth in the Dolphin Performance Schedule within the times set forth therein. 6. Nothing herein or in the DDA or DA constitutes a representation or warranty by Agency or City that the construction of the Parcel 2 Casitas Development or any portion thereof is not subject to California Health and Safety Code Sections 33423 through 33426, or Chapter 1 of Part 7 of the California Labor Code (commencing with section 1720), and all applicable statutory and regulatory provisions related thereto, and Dolphin expressly waives any right of reimbursement for any "increased costs" under California Labor Code Section 1781 or otherwise with respect to Parcel 2 or the Parcel 2 Casitas Development. Dolphin shall, indemnify, defend, and hold Agency and City harmless, including litigation costs and reasonable attorneys' fees, from and against any and all claims pertaining to the payment of wages for Parcel 2 or the Parcel 2 Casitas Development. 7. Except as expressly provided in Section 4 above, nothing in this Agreement is intended to modify any provision in the DDA or DA. 8. In the event of any action between or amongst the Parties hereto seeking enforcement of any of the terms and conditions to this Agreement, the prevailing Party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney's fees. 9. This Agreement shall be construed according to its fair meaning and as if prepared by all of the Parties hereto. 10. This Agreement shall be governed by the internal laws of the State of California without regard to conflict of law principles and any question arising hereunder shall be construed or determined according to such law. The Superior Court of the State of California in and for the County of Riverside, or such other appropriate court in such county, shall have exclusive jurisdiction of any litigation between the Parties concerning this Agreement. Service of process on Agency or City shall be made in accordance with California law. Service of process on Lennar or Dolphin shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. 11. Time is of the essence of this Agreement and of each and every term and provision hereof. 892/015610-0107 _ 902956.05 a05/16/08 _4 12. A waiver of a provision hereof, or modification of any provision herein contained, shall be effective only if said waiver or modification is in writing, and signed by the Party granting the waiver. No waiver of any breach or default by any Party hereto shall be considered to be a waiver of any breach or default unless expressly provided herein or in the waiver. 13. This Agreement may be executed in counterparts, each of which, when this Agreement has been signed by all the Parties hereto, shall be deemed an original, and such counterparts shall constitute one and the same instrument. 14. The person(s) executing this Agreement on behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such Party is bound. [End -- signature page follows] 882/015610-0107 902956.05 a05/16/08 -5- IN WITNESS WHEREOF, Agency, City, CP, and Dolphin each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above. "Dolphin" DOLPHIN LA QUINTA, a California limited liagilit Date: 2008 By: Its: By: Its: "Lennar" LENNAR HOMES OF CALIFORNIA INC., a California corporation Date: 12008 By: Date: W1944 2008 APPROVED AS TO FORM: RUT& Altor ys for the L uinta Redevelopment Agency Its: "Agency" LA QUINTA REDEVELOPMENT , AGENCY, a public body, and politic Executive Director [Signatures continued on next page] 882/015610-0107 902956.05 a05/16/08 -6- IN WITNESS WHEREOF, Agency, City, CP, and Dolphin each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above. "Dolphin" DOLPHIN LA QUINTA, LLC, a California limited liability company Date: 2008 By: Date: d 16 2008 Date: 2008 ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency Its: By: Its: "Lennar" LENNAR HOMES OF CALIFORNIA INC., a California corporation By: ,6, a -d ►�9 Its: L/ L VrCe- �luordG —� "Agency" LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic M Executive Director [Signatures continued on next page] 882/015610-0107 _6_ 902956.05 a05/16108 "City" CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California Q /� Bye/�!��1�-� / i'✓'<'�-�-c-s.�. Its: City Manager . i APPROVED AS TO FORM: 982/015610-0107 _ 902956.05 a05/16/08 _7 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY PARCEL 2 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO 66, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PROPERTY OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137 OFFICIAL RECORDS. 882/0156)0-0107 902956.05.06/12/08 Exhibit "A" EXHIBIT "B" DOLPHIN PERFORMANCE SCHEDULE [See attached pages] 8821015610-0107 Exhibit `B 902956,05 a05116108 THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS Item of Performance Tlme for Completlon** 1 City approval of Agreement and execution of Not later than May 21, 2008. same. 2 Dolphin closes escrow with Lennar and acquires Not later than June 30, 2008, per the Third fee title to Parcel 2. Amendment to the Purchase & Sale Agreement between Dolphin and Lennar. 3 Developer and Agency execution of amendments Within three (3) months after the commencement o to DA and DDA. the eighteen (18) period described inSection1b of the Agreement (as such eighteen (18) month period may commence as a result of the failure of Dolphin to provide satisfactory evidence to City that negotiations with CP are proceeding). 4 Developer submission of complete Site Within 180 days after Effective Date of DDA Development Permit Application "SDPA", which amendment. will include: Detailed Site Plan; Floor Plans and Layout; Elevations; Conceptual Landscaping; Master Grading Plan; and Tract Map. 6 Review of SDPA by all applicable City Agency will use reasonable efforts to cause such departments. review within 21 days after Developer's submittal o SDPA. 6 Agency response to Developer as to City Within 7 days after Agency's receipt of City's final comments on SDPA. comments, but no later than 30 days after Developer's submission of SDPA. 7 Developer and City Responses. Developer will respond to any request within 7 days and Agency will use reasonable efforts to cause City to respond to any submission within 7 days. 8 City publishes Notice of Public Hearing before the Within 20 days after City responds to Developer's Planning Commission. comments in the preceding section. 9 Planning Commission Public Hearing and Approximately 10 days after City responds to consideration of SDPA and Tract Map. Developer's comments in the preceding section. 10 City Council consideration of SDPA and Tract Approximately 21 days after Planning Commission Map. approval. 11 City's issuance of SDPA, Tract Map and Within sixty (60) days from City's receipt o conditions. Developer's SDPA. 12 Developers submission of (i) evidence of financing necessary to complete units, and (ii) Within 30 days after Developer's completion of Precise Grading and Building Permit Precise Grading Plans and Construction Drawings Applications. for the Parcel 1 Restaurant. THE DOLPHIN PARTNERS SCHEDULE OF PERFORMANCE FOR EXISTING 40 CASITAS UNITS AND REMAINING CONDO -HOTEL UNITS 13 Developer's submission of building permit Within 120 days of Agency's approval of SDPA. applications for rental unit development. 14 City's issuance of building permits for the Within 60-90 days from submission of complete se development of the rental units. of construction documents including grading plans. 15 Developer commences construction of the rental Within 60 days after Developer's receipt of building unit development. permits for the rental unit development. 16 Completion of the rental unit development. Within eighteen (18) months of City's forma approval of SDPA. *Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in City's sole and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause City to take such action in the time prescribed herein. Re: Dolphin Schedule Page 1 of 3 Deborah Powell From: John Kingsley [Jkingsley@dolphin-partners.com] Sent: Tuesday, June 03, 2008 4:20 PM To: Deborah Powell Subject: FW: Dolphin Schedule Debbie — Please see Geoffs confirmation below. Do you need anything from me on this matter? Will your office be re -sending a corrected version of the Timelines? Thanks as always. JCK John C. Kingsley Senior Vice President DOLPHIN PARTNERS, INC. 18818 Teller Avenue, Suite 200 Irvine, CA 92612 949-852-9230 From: Geoffrey Willis [mailto:GWillis@sheppardmullin.com] Sent: Tuesday, June 03, 2008 3:00 PM To: John Kingsley Cc: David Collins Subject: Re: Dolphin Schedule The change is fine. I 650 Town Center Drive 41h Floor i Costa Mesa, CA 92626-1993 >^. vv S N1 r 5 ti z' r. Avt 714.513.5100 office 714.513,5130 Pax www,shepparrdm_ul110-notn Geoffrey Willis 714.424.2894 direct 1714.428.5922 direct rax GWillis@sheppardmuPin.com I Big Circular 230 Notice: In accordance with Treasury Regulations we notify you that any tax advice given herein (or in any attachments) is not intended or written to be used, and cannot be used by any taxpayer, for the purpose of (i) avoiding tax penalties or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein (or in any attachments). Attention: This message is sent by a law firm and may contain information that is.privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. From: John Kingsley <Jkingsley@dolphin-partners.com> To: Geoffrey Willis Cc: David Collins 6/4/2008 Re: Dolphin Schedule Page 2 of 3 Sent: Tue Jun 03 14:15:41 2008 Subject: FW: Dolphin Schedule Geoff — Looks like a minor confirmation is needed from you. See below and give me and others the thumbs up quickly. Any comments or concerns, please let me know. Thanks as always. JCK John C. Kingsley Senior Vice President DOLPHIN PARTNERS, INC. 18818 Teller Avenue, Suite 200 Irvine, CA 92612 949-852-9230 From: Deborah Powell [mailto:dpowell@la-quinta.org] Sent: Tuesday, June 03, 2008 2:17 PM To: John Kingsley Cc: Doug Evans; LeMoine-Bui, Allison Subject: FW: Dolphin Schedule John, Please see the email below from our attorney, Allison LeMoine-Bui, to Geoff Willis. We've not heard back from Mr. Willis. We just need an email confirmation that the below -listed change is acceptable to Dolphin. Once we have that, I can mail out the executed agreements. Thank you very much. Sincerely, Debbie Powell, Management Analyst City Manager's Office, Development Services City of La Quinta dpowell@la-quinta.org (760)777-7073 6/4/2008 Re: Dolphin Schedule Page 3 of 3 (760) 777-7 101 fax From: LeMoine-Bui, Allison [mailto:alemoine-Bui@nitan.coml Sent: Tuesday, May 27, 2008 12:30 PM To: gwillis@sheppardmullin.com Cc: Jenson, Kathy; Deborah Powell Subject: Dolphin Schedule Geoff, we've discovered a typo in the schedule of performance which is attached to the Deposit Agreement. Item 12 references the "Parcel 1 Restaurant", which is a carryover from a prior schedule in the DDA. All other references to the actual proposed development reference a "rental unit development" or the "rental units." Please confirm your understanding and acknowledgement that the reference to the Parcel 1 Restaurant should be to the "rental unit development." Any other interpretation would not make sense and/or would be detrimental to Dolphin, as the Parcel 1 Restaurant is likely to be developed on a much tighter timeline than the Dolphin development. Allison LeMoine-Bui Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 714-662-4658 Direct 714-546-9035 Fax alemoine-Bui@mtan.com www.rutan.com <b!W://www.rutan.comt> Any tax advice contained in the body of this e-mail (and any attachments thereto) was not intended or written to be used, and cannot be used, by the recipient for the purpose of avoiding penalties that may be imposed under the Internal Revenue Code or applicable state or local tax law provisions. Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic. message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. P Please consider the environment before printing this e-mail. 6/4/2008 EXHIBIT "C" ASSIGNMENT AND ASSUMPTION AGREEMENT [See following pages] U2M15610-0107 Exhibit "C 902956.05 a05/16/08 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: LENNAR HOMES OF CALIFORNIA, INC. Attn: ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is entered into this _ day of , 2008 (the "Effective Date") by and between LENNAR HOMES OF CALIFORNIA, INC., a California corporation ("Assignor") and DOLPHIN LA QUINTA, LLC, a California limited liability company ("Assignee") with reference to the following: A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-245 Seeley Drive, in the City of La Quinta, California ("Parcel 2"). Parcel is more particularly described on Exhibit "A", which is attached hereto and, incorporated herein by this reference. B. WHEREAS, pursuant to the terms of that certain Disposition and Development Agreement entered into by and between the Assignee and the La Quinta Redevelopment Agency, a public body, corporate and politic ("Agency") on or about December 18, 2003, as amended on or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or about October 20, 2006, on or about August 23, 2007, and on or about March 23, 2008 (as amended, the "DDA"), the Agency conveyed Parcel 2 and certain adjacent real property to CP Development La Quinta, LLC, a California limited liability company ("CP"). C. WHEREAS, subsequent to its acquisition of Parcel 2, CP conveyed Parcel 2 and assigned all of its rights and obligations with respect to Parcel 2, to Assignor. D. WHEREAS, concurrently with the execution of the DDA,,the City of La Quinta ("City") and CP entered into that certain Development Agreement which was recorded in the Official Records of the County Recorder for the County of Riverside (the "Official Records") on January 5, 2004, as Instrument No. 2004-0005256, as amended by that certain Amendment No. 1 to Development Agreement executed on or about October 28, 2004, and recorded in the Official Records on November 8, 2004, as Instrument No. 2004-0885063, that certain Amendment No. 2 to Development Agreement executed on or about November 17, 2005, and recorded in the Official Records on December 19, 2005, as Instrument No. 2005-1045418, and that certain Amendment No. 3 to Development Agreement executed on or about , 2008, and recorded in the Official Records on , 2008, as Instrument No. (as amended, the "DA' 882/015610-0107 _ 90295605 a06/12/08 -1 E. WHEREAS, pursuant to the terms of the DDA and DA and all entitlements issued in connection therewith, Assignor is required to develop on Parcel 2 one hundred thirty-two (132) condominium/casitas units and associated public and private improvements and amenities (collectively, the "Parcel 2 Casitas Development"). F. WHEREAS, Assignor has developed forty (40) condominium/casitas units on Parcel 2, and now wishes to transfer and assign to Assignee all of its rights and obligations under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Development (collectively, the "Parcel 2 Casitas Obligations"). NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations from and after the Effective Date. 2. Assignee hereby accepts the foregoing assignment of all of Assignor's rights and responsibilities under the DDA and DA with respect to Parcel 2 and the Parcel 2 Casitas Obligations, and agrees to be bound by the terms of the DDA and DA with respect to all of such rights and responsibilities from and after the Effective Date. 3. The parties hereto each warrant and represent that they have taken all necessary corporate action to authorize the execution and performance of this Assignment and that the individuals executing this document on behalf of the parties are authorized to do so, and by doing so, create binding obligations as described herein of the party represented. 4. The terms of this Assignment shall not be amended and this Assignment shall not be terminated except by written instrument executed by both of the parties hereto, and only upon the prior written consent of the City and Agency. 5. This Assignment shall be governed by the internal laws of the State of California, without regard to conflict of law principles. 6. Any defined terms used but not defined herein shall have the same meaning as in the DDA. By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. [End — signatures on next page] 882/015610-0107 _ 902956 05 a06/12/08 -2 WHEREFORE, the parties hereto have executed this Assignment on the date first written above. "Assignor" LENNAR HOMES OF CALIFORNIA INC., a California corporation By: Its: "Assignee" DOLPHIN LA QUINTA, LLC, a California limited liability company an Its: 882/015610-0107 90295605 a06/12/08 -3- State of California ) County of ) On before me, , Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) State of California ) County of ) On before me, , Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/015610-0107 902956.05 a06/12108 -4- CONSENT By execution below, the City and Agency hereby: (i) consent to the foregoing assignment; (ii) release Assignor from any further obligations under the DA or DDA; and (iii) waive their right to condition their approval of the foregoing assignment and sale by Assignor to Assignee of Parcel 2 upon payment by Assignor to the City and/or Agency of half of Assignor's net sales proceeds, as permitted by Section 703.2 of the DDA and Section 7.2 of the DA. LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic By: Its: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California By: Its: City Manager ATTEST: City Clerk APPROVED AS TO FORM: RUTAN & TUCKER, LLP City Attorney 882/015610-0107 902956 05 46/12M -5- State of California ) County of ) On before me, , Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) State of California County of On before me, , Notary Public, (here insert name and title of the officer) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (seal) 882/015610-0107 902956.05 a06/12108 -6- EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY PARCEL 2 OF PARCEL MAP NO. 31116, IN THE CITY. OF LA QUINTA, COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO 66, RECORDS OF SAID COUNTY. EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 500 FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON SUBSTANCES OR MINERALS FROM SAID PROPERTY OR OTHER LANDS, BUT WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137 OFFICIAL RECORDS. 882/015610-0107 90295605 a06/12/08 Exhibit "A"