CC Resolution 2014-058 Jefferson St Acquisition Desert Land HoldingsRESOLUTION NO. 2014 — 058
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
LA QUINTA, CALIFORNIA, APPROVING AN AGREEMENT
FOR PURCHASE AND SALE AND ESCROW
INSTRUCTIONS BETWEEN THE CITY OF LA QUINTA
AND DESERT LAND HOLDINGS, LLC FOR CERTAIN
PROPERTY LOCATED ON THE EAST SIDE OF
JEFFERSON STREET BETWEEN PALM CIRCLE DRIVE
AND THE WHITEWATER CHANNEL
WHEREAS, the City of La Quinta ("City") desires to see efficient use of land
and provide opportunity for quality and vibrant development; and,
WHEREAS, such development is in accordance with the goals, policies and
programs of the La Quinta General Plan; and,
WHEREAS, City staff has negotiated an Agreement for Purchase and Sale
and Escrow Instructions ("Agreement") with Desert Land Holdings, LLC
("Developer") ("Exhibit A" attached), pursuant to which the City has agreed to sell
to Developer certain real property located on the east side of Jefferson Street
between Palm Circle Drive and the Whitewater Channel, comprising of
approximately 25,000 square feet, in the amount of $1.00 per square foot,
pursuant to the terms and conditions set forth in the Agreement.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of La
Quinta, California as follows:
SECTION 1. That the above recitals are true and correct and incorporated herein.
SECTION 2. That the City Council of the City of La Quinta, California, hereby finds
and determines that the sale of said property is in the best interests of the citizens
of the City of La Quinta.
SECTION 3. The Agreement ("Exhibit A"), a copy of which is on file with the City
Clerk, is hereby approved. The City Council authorizes and directs the City
Manager and City Attorney to make any final modifications to the Agreement that
are consistent with the substantive terms of the Agreement approved hereby, and
to thereafter sign the Agreement on behalf of the City.
SECTION 4. The City Council authorizes and directs the City Manager to (i) sign
such other and further documents, including but not limited to escrow instructions,
Resolution No. 2014-058
Purchase and Sale Agreement — Desert Land Holdings, LLC
Adopted: November 4, 2014
Page 2
and (ii) take such other and further actions, as may be necessary and proper to
carry out the terms of the Agreement.
PASSED, APPROVED, and ADOPTED at a regular meeting of the City Council
of the City of La Quinta held this 4th day of November, 2014, by the following
vote:
AYES: Council Members Evans, Franklin, Henderson, Osborne, Mayor Adolph
NOES: None
ABSENT: None
ABSTAIN: None
r�us
DON A OLP ayor
City of La Quin , California
ATTEST:
SUSAN MAYSELS, Cit Clerk
City of La Quinta, California
(CITY SEAL)
APPROVED AS 1'O FORM:
WILLIAM H. IHRKE, City Attorney
City of La Quinta, California
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
BY AND BETWEEN THE
CITY OF LA QUINTA
("SELLER")
AND
DESERT LAND HOLDINGS L.L.C.
("BUYER")
1. PURCHASE PRICE....—.,.....................
1.1
Amount 2
1.2
Paymenthof Purchase Price .........................a.,r . ,.,....... .,............ . 2
ESCROW.............................
,.
2.2
Escrow Instructions .............................. ..,,,,. ,; :.......; ..,,............. .......s...........3
3: SUBDIVISION
..............................................................................................—... 3
3.1
Subdivision of Currently Owned City Parcels .................................. ............,.,.., 3
3.2
Condition to Closing Escrow; Not Subject to Waiver or
Noncompliance ................. .......................... 4
3.3
Infrastructure Improvements. 4
3.4
Reservatio ofDiscretion—, .................. ----A
3.5
Date for Completion of Subdivision Contingencies ....,.................. 5
4. DUE II ..
.1 Due Diligence . ........................... 5
.1.1 Title/Survey................. ... . ... .5
.1.2 Environmental Condition. 6
4.2 Confidentiality .. ...................... .. 9
5, CLOSE OF ESCROW .. .... .....................
5.1 Close of Escrow; Closing Date .......... 9
5.2 Recordation; Release of Funds andDocuments*.. ..d........ .... .. 9
5.3 Escrow Cancellation Charges .. 10
6. DELIVERY 1BUYER AND
SELLER................................................................................... ................
10
6.1Buyer's Obligations ........... .................10
6.2 Seller's Obligations ................... ........................ --- .10
7. TITLE INSURANCE POLICY............. ...... — ............. .....,..,,,............ 1
7.1 Title Policy .................. 14
CONDITIONS TO CLOSING...... .....n.........a...,..; 1
9.1 Conditions Precedent toBuyer's Obligations ............. ........: .............. .....
.......:11
9.2 Conditions Precedent to Seller's Obligations . 12
10. ..,,.,_..-- ........ ....... ...,.........
11. ALLOCATION OF COSTS .......... --- ... ..... Y........... ..,,,.,..., .............,...,.,,.,,. .,.... 3
11.1Buyer's Costs ..................... ...........„ ............,....,...........,...,....,...,...,:....... ,13
11.2 Seller's Costs .. 13
698/015610-0002
7460866 3 PM14 ®1®
01-M
12. BUYER'S REPRESENTATIONS AND WARRANTIES.6�..
12.1 Buyer's Representations, Warranties and Covenants .... ......
12.2 Seller's Representations and Warranties
12.3 Seller's Knowledge ....... ......
12.4 Change in Circumstances ....................
�i I � i � � � � � I � � �! � � � 1 � � �! I ;� � � A 0 0
11 11 111 11 11P � a JMU��
14. DAMAGE, DESTRUCTION AND CONDEMNATION. ... ....... .... 19
14.1 Risk of Physical Loss. ....... ........... ____ ... ....... 19
14.2 Condemnation.......... ...... - ........... ....... ......... ..... .......... 19
15. WAIVER OF DAMAGES; SPECIFIC .. 1 it
V,
,,uyer shall defend, indemnify, assume all responsibility for, and hold the City,
and the City's representatives, volunteers, officers, employees and
agents, harmless from any and all claims, demands, damages, defense
costs or liability of any kind (including attorney's fees and costs), that
arise from this Agreement (other than those damages caused by the
breach of the Agreement by City or by the negligence or willful
misconduct of the City's representatives, officers, employees and
agents) including, but not limited to, Buyer's failure to pay, if required,
prevailing wages ............ ....... .. -, ...... 20
16. MISCELLANEOUS ........ ...... .......... ........ _.,20
16.1 Assignment .................................. ......... ............... ... ...... ... .20
16.2 Attorney's Fees ............. ...... ............... ____ ...... ... - 20
16.3 Notices ........................ ...... ........... ............... ___ ................. _ 20
16.4 Fair Meaning ................ ____ .. _ ...... ........ ___ ... - .............. 21
16.5 Headings ........... ...... ..... .......... ........ ......... - ... __21
16.6 Choice of Laws; Litigation Matters ........................... ...... ___ ......... _21
16.7 Nonliability of Seller Officials. 21
16.8 Gender; Number ...................................... ...... ................21
16.9 Survival .................... ...... .... ___ ..... ...... ... __ .... _21
16.10 Time of Essence ............. .......... ......... _ .......
16.11
Waiver or Modification ..... .......... ....... ____21
16.12
Broker's Fees ................................................... ................ _____22
16.13
No Withholding Because Non -Foreign Seller . ........... ...... ____
.... :22
16.14
Severability ............................. ........ __ .. ...... ............. _______22
16.15
Exhibits ............ ........ ...........
22
16.16
Covenants of Seller, ...... ......... ............
...22
16.17
Covenant Against Discrimination .................. ...... ...... .. _.__ .........
__23
16.18
Entire Agreement; Amendment ................... .......... _._____.__23
16.19
Counterparts .............................................. ........ ......... ........
23
16.20
Facsimile Signatures ...... ........ .__ .... -1-1- ...... ....... .......
�23
698/015610-0002
7460866 3 PM14
Exhibit A Legal Description of the Property
Exhibit B Form of Grant Deed
Exhibit C Form of Affidavit of Non -Foreign Entity
698/015610-0002 ...
74608663 PM14 -111-
AGREEMENT FOR PURCHASE AND SALE
- ... ......
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW
INSTRUCTIONS ("Agreement") is made and entered into as of 2014
("Effective Date") by and between the CITY OF LA QUINTA, a Municipal Corporation
("Seller"), and DESERT LAND HOLDINGS L.L.C., a California limited liability company
("Buyer").
RECITALS:
A. Seller is the owner of approximately 25,114 square feet of unimproved
real property located generally at the eastern 30 feet of those properties with Assessor's
Parcel Numbers ("APNs") 600080001, 600080002, 600080003, 600080004,
600080005, 600080006, 600080007, 600080008, and 600080009, in the City of La
Quinta, County of Riverside, State of California, as depicted by the shaded area on the
aerial map attached hereto as Exhibit "A" and incorporated herein by this reference (the
"Property"). Buyer is also the current owner of that certain real property located directly
east and adjacent to the Property [with APN 600080041, also as depicted in Exhibit "A"
(the "Buyer -Owned Real Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to
sell the Property to Buyer, on the terms and conditions set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are a
substantive part of this agreement and incorporated by reference, and mutual
covenants herein contained, the parties hereto agree as follows:
1. PURCHASE_ PRICE.
1.1 Amount.' Subject to the terms of this Agreement, Buyer hereby agrees to
purchase the Property from Seller, and Seller agrees to sell the Property to Buyer, for
the purchase price of $1,00/square foot for the Property ("Purchase Price"), to be
calculated after subdivision of the land pursuant to this Agreement.
1.2 Payment of Purchase Price. Within five (5) days after the "Opening of
Escrow" Buyer shall of
with "Escrow Holder" (as those terms are defined in
Section 2.1 below) in "Good Funds" (as used in this Agreement, the term "Good Funds"
shall mean a confirmed wire transfer of immediately available funds, cashier's or
certified check drawn on or issued by the office of a financial institution located in
Riverside County, or cash) (i) the sum of One Hundred Dollars ($100) (the
"Independent Contract Consideration") as consideration for Seller's execution and
delivery of this Agreement and Buyer's right to approve or disapprove any Buyer
contingencies set forth in this Agreement; and (ii) the sum of Five Thousand Dollars
($5,000) as a good faith deposit (the "Deposit").
698/015610.0002
7460866.3 PM14 -2-
In the event the ♦ (as that term is defined in • 2.1) •
Escrow Holder shall apply the Independent Contract Consideration and Deposit toward
I
the Purchase Price. In the event the •+ is terminated and ♦ to close, • an
I
reason other than a default hereunder by Seller, Escrow Holder shall promptly, but n
later than five (5) days after said termination, release the Independent •
Co-fsideragQii to Seller.
MOOMMEMOM
off
Ila T� rnlqro - 0 irgmig
14 11-7A id Im or-] I kTM F-11 V" W-1 2 i•
698/015610-0002
74608663 PM14
Escrow and the obligations of Buyer and Seller to purchase and sell the Property under
the Agreement. If Seller notifies Buyer of its election to terminate the Escrow and this
Agreement rather than remove the objectionable items on the Preliminary Title Report
or is deemed to have so elected, Buyer shall have the right, by written notice delivered
to Seller within five (5) days after Buyer's receipt of Seller's Notice, to agree to accept
the Property subject to the objectionable items, in which event Seller's election to
terminate shall be of no effect, and Buyer shall take title at the Close of Escrow subject
to such objectionable items without any adjustment to or credit against the Purchase
Price. All exceptions to title shown on the Preliminary Title Report, other than those
which Seller may agree to remove pursuant to this Section 4.1.1, shall be deemed to
have been approved by Buyer unless Seller is notified otherwise in writing.
Upon the issuance of any amendment or supplement to the Preliminary
Title Report which adds additional exceptions or which is issued as a result of the
recording of the final subdivision map or similar instrument creating a separate legal
parcel for the Property from the Pre -Subdivided City -Owned Parcels as set forth in this
Agreement, the foregoing rights of review and approval shall also apply to said
amendment or supplement; provided, however, that Buyer's initial period of review and
approval or disapproval of any such additional exceptions shall be limited to ten (10)
days following receipt of notice of such additional exceptions. The process set forth
above for Buyer's review and Seller's response shall apply to any review and response
with respect to any amendment or supplement to the Preliminary Title Report, and the
"Closing" (as that term is defined in Section 5.1 below) shall be extended for such
period as is necessary to allow for that review and response process to be completed.
4.1.2 Environmental Condition.
(a) During the Due Diligence Period, Seller shall permit Buye
and Buyer's directors, engineers, analysts, officers, employees, agentE
contractors, subcontractors, consultants, representatives, attorneys ani
advisors (collectively, the "Buyer Representatives"), at the sole cost aniis
expense of Buyer, to conduct physical inspections of the Propert�
including the site work, soil, subsurface soils, drainage, seismic and othE
geological and topographical matters, location of asbestos, toxi
substances, hazardous materials or wastes, if any, and any othE
investigations as Buyer deems prudent with respect to the physicE
condition of the Property in order to determine the Property's suitability fc
Buyer's intended development. In no event shall Buyer conduct an
intrusive testing procedures on the Property without the prior writte
consent of Seller, which consent shall not be unreasonably withheld. Suc
investigations may be made by Buyer and/or Buyer Representative
during any normal business hours. Buyer shall also have the right t
investigate all matters relating to the zoning, use and compliance wit
other applicable laws, codes, and ordinances which relate to the use an
occupancy of the Property. Seller shall cooperate to assist Buyer i
completing such inspections and special investigations at no cost c
expense to Seller. Such inspections and investigations shall b
698/015610-0002
7460866,3 PM14 -6-
conducted only upon no less than forty-eight (48) hours' notice to Seller
and shall be conducted at such times and in such a manner as to
minimize any disruption to the Property. Seller shall have the right, but not
the obligation, to accompany Buyer during such investigations and/or
inspections.
(c) Buyer shall promptly pay and discharge all demands for
•. relating to Buyer's entry • and investigation • the Property and
take all other steps to avoid the assertion of claims of lien against the
Property. In the event a claim • lien is recorded •' • • Buyer's
entry on the Property, Buyer, within fifteen (15) days of such recordation,
shall either (i) record • deliver a surety bond sufficient to release such
claim or lien in accordance with applicable law; or (ii) provide Seller with
such other assurance as Seller may require for the payment of the claim
698/015610-0002
7460866-3 PM14 -7-
or lien, Seller may elect to record and post notices of non -responsibility
from time to time on and about the Property.
(d) Buyer agrees to indemndefendi protect, and hold Seller
& Seller Personnel and the Property, free and harmless from any and all
loss, liability, claims, action, suit, proceeding, deficiency, fine, penalty,
damages and expenses (including, but not limited to, reasonable
attorneys' fees, expert witness fees, and costs) arising directly or indirectly
from: (i) the exercise of said entry, Buyer's failure to comply with the
condons to Buyer's entry onto the Property provided herein, and (iii) the
presence of any Hazardous Materials (as defined in Section 13 herein) on,
under, in or about the Property occurring prior to or after the Close of
Escrow resulting from the activities of Buyer or Buyer Representatives on
the Property prior to the Close of Escrow. Such undertaking of indemnity
shall survive Close of Escrow or the termination of this Agreement for any
698/015610-0002
7460866.3 PM14 -8-
4.2 Confidentiality. Any and all information made available to Buyer under this
Agreement or discovered by Buyer during its investigation of the Property shall be
treated as confidential by Buyer and such information shall not be disclosed prior to the
Close of Escrow without the prior written consent of Seller; provided, however, that
Buyer may disclose said information (i) to any attorney, accountant, engineer or
consultant providing services to Buyer in the normal and ordinary course of business,
(ii) • a • •'i any • • ••• if said confidential information is subpoenaed •
that court • • body; provided that Buyer notifies Seller, in writing, • the receipt of
such •po and (iii) if required to disclose such information • to the
California Public Records Act or other applicable law. Seller shall be permitted to
pursue, at Seller's cost, such confidentiality order with or without Buyer. Additionally, if
this Agreement terminates for any reason whatsoever, Buyer shall return to Seller all
written information delivered by Seller to Buyer pursuant hereto, and all copies of such
information made by Buyer, within ten (10) days after termination hereof. The
provisions of this Section 4.2 shall survive any termination of this Agreement.
698/015610-0002
74608663 PM14 -9-
Upon the Closing, scrow Holder shall deliver (i) the Purchase Price, less
Seller's closing costs, to Seller, and (ii) conformed copies of all recorded documents to
both Buyer and Seller.
5.3 Escrow Cancellation C4rges. If the Escrow does not close due to
default by one of the parties, the defaulting party shall bear all "Escro1
w Cancellatio
Charges" (as that term is defined below). If the Close of Escrow does not occur for an
0
n
reason other than the default of a party, then Buyer and Seller shall each pay fi
percent (50%) of any Escrow Cancellation Charges. As used herein, "Escro
Cancellation Charges" means all fees, charges and expenses incurred by Escro
Holder or third parties engaged by Escrow Holder, as well as all expenses related to th
services of the Title Company in connection with the issuance of the Preliminary Titl
Report and other title matters.
6. DELIVERY OF DOCUMENTS REQUIRED FROM BUYER AND SELLER.
g &1 BuveWs Obli jfs�_ pqs. Buyer agrees that on or before 5:00 p.m. of the la
business day immediately preceding the Closing Date, Buyer shall deposit or cause
be deposited with Escrow Holder the following: I
(a) The Purchase Price, less the Deposit and Independent Contract
Consideration;
(b) Any and all additional funds; instruments or other documents
required from Buyer (executed and acknowledged where
appropriate) as may be reasonably necessary in order for the
Escrow Holder to comply with the terms of this Agreement.
6.2 Seller's .9 . Seller agrees that on or before 5:00 p.m. of the IaX
business day immediatelv preceding the Closing Date, Seller shall deposit or cause
be deposited with Escrow Holder each of the following:
(a) The executed and acknowledged Grant Deed',
(b) A Certificate of Non -Foreign Status (the "Non -Foreign Affidavit")
executed and acknowledged by Seller substantially in the form
attached hereto as Exhibit "C": and
(c) All other funds, items, and instruments required from Seller
(executed and acknowledged where appropriate) as may be
reasonably necessary in order for Escrow Holder to comply with the
provisions of this Agreement.
7.1 Title Polipy. At the Closing Date, the Title Company, as insurer, shall
issue an ALTA owner's standard coverage policy of title insurance ("Title Policy"), in
698/015610-0002
74608663 PMJ4
favor of Buyer, as insured, with liability in the amount of the Purchase Price, subject to
the following:
(a) Non -delinquent real property taxes and assessments;
(b) Title exceptions approved or deemed approved by Buyer pursuant
to Section 4. 1.1 above;
(c) Title exceptions, if any, resulting from Buyer's entry onto the
Property pursuant to the provisions of Section 4.1.2 above;
(d) Any other exceptions approved by Buyer; and
(e) The standard printed conditions and exceptions contained in the
ALTA standard owner's .• of title insurance regularly issued •
the Title Company.
7.2 Payment for Title '• Seller shall •- responsible for the •- for
the Title Policy with coverage up to the amount of the Purchase Price. Buyer may, at its
election, request an ALTA extended policy of title insurance. Buyer shall pay the
difference for the charges between the premium for the extended coverage title ••l
and the premium for the standard coverage title policy that Seller is responsible for
hereunder and the cost for any endorsements requested by Buyer.
8. REAL PROPERTY TAXES. Buyer shall pay all property taxes and assessments.
The Property is currently exempt • the •. • property taxes and assessments
due to Seller's status as a public agency. In the event, however, property taxes or
assessments are mistakenly assessed .•. the Property after the Closing • any
period prior to the Closing, Buyer shall be responsible for timely payment thereof but
Buyer may apply for a refund for that portion of taxes and assessments allocated to any
period prior to the Closing, in accordance with the applicable provisions of the Revenue
and Taxation Code. Seller shall cooperate with Buyer, at no cost to Seller, to effect
such •
9.1 Conditions Precedent to Buver's Obliaptiom The obligations of Buyer
•
the satisfaction or signed written waiver (except for condition (a), which may not •
waived) by Buyer of each and all of the following conditions precedent (collectively
"Buyer's Condons • Closing"):
(a) The final subdivision map • similar instrument creating a separate
legal parcel for the Property from the Pre -Subdivided City -Owned
Parcels has been recorded in the Official Records;
698/015610-0002
7460866.3 PM] 4
(b) The legal description of the Property based on the recorded
subdivision map or similar instrument is attached to the executed
and acknowledged Grant Deed;
(c) On the Closing Date, the Title Company shall be irrevocably
committed to issue the Title Policy pursuant to Section 7 above
insuring fee title to the Property as being vested in Buyer;
(d) Escrow Holder holds all instruments and funds required for the
Closing, including, but not limited to, the fully executed and
acknowledged Grant Deed, and will deliver to Buyer the
instruments and funds, if any, accruing to Buyer pursuant to this
Agreement;
(e) Except as otherwise permitted by this Agreement, all
representations and warranties by the Seller in this Agreement shall
be true on and as of the Closing Date as though made at that time
and all covenants of Seller pursuant to this Agreement shall have
been fulfilled by the Closing Date;
(f) Seller is not in default of any term or condition of this Agreement.
In the event that any of Buyer's Conditions to Closing are not satisfied, deemed
satisfied, or waived in a writing signed by Buyer prior to the expiration of the applicable
period for satisfaction or waiver, Buyer may terminate this Agreement.
9.2 Conditions Precedent to Seller's Obliqations. The obligations of Seller
under this Agreement shall be subject to the satisfaction or signed written waiver
(except for condition (a), which may not be waived) by Seller of each and all of the
following conditions precedent ("Seller's Conditions to Closing"):
(a) The final subdivision map or similar instrument creating a separatA
legal parcel for the Property from the Pre -Subdivided City -Owned
Parcels has been recorded in the Official Records;
(b) The legal description of the Property based on the recorded
subdivision map or similar instrument is attached to the executed
and acknowledged Grant Deed;
(c) Escrow Holder holds the Purchase Price and all other instruments
and funds required for the Closing and will deliver to Seller the
instruments and funds, including, but not limited to, the Purchase
Price (less Seller's closing costs) accruing to Seller pursuant to this
Agreement;
(d) Except as otherwise permitted by this Agreement, all
representations and warranties by the Buyer in this Agreement
shall be true on and as of the Closing Date as though made at that
698/015610-0002
74608663 PM14 -12-
time and all covenants of Buyer pursuant to this Agreement sh
have been fulfilled by the Closing Date; I
1111 � I PIPE!•1 1111 1 zM I
in the event that any of Seller's Conditions to Closing are hot satisfied, deemeJ I
satisfied, or waived in a writing signed by Seller prior to the expiration of b
the applical
period for satisfaction or waiver, Seller may terminate this Agreement.
10. POSSESSION. Possession of the Property shall be delivered by Seller to Buyer
on the Closing Date�
A,
1�r
RMMMM• � I I J� 1EMM3zM3=
IN I!' RIM M
(b) Buyer's own attorney's fees incurred in connection with this
Agreement and the transactions contemplated hereby;
(d) The premium difference between the ALTA extended policy of title
insurance and the ALTA standard coverage policy of title insuranc.--
if Buyer requests an extended policy; and
(e) Any additional title insurance coverage Seller is not required to pay
for plus any title endorsements requested by Buyer.
(a) Seller's own attorney's fees in connection with this Agreement and
the transactions contemplated hereby;
(b) Any documentary transfer taxes associated with the conveyance;
(c) Fifty percent (50%) of all the charges for recording the Grant Deed,
if any; and
(d) The premium for the Title Policy that Seller is required to pay
pursuant to this Agreement.
12.1 BWers__.Rppresentations� Warranties and Covenants, Buyer hereby
.nakes the following representations and warranties to Seller, each of which is true in all
respects as of the date hereof and shall be true in all respects on the Closing Date:
698/015610-0002
74608663 PM14 -13-
(b) Buyer has the legal power, right, and authority to execute, deliver
and perform Buyer's obligations under this Agreement and the
documents executed and delivered by Buyer pursuant hereto;
(c) All requisite action (corporate, trust, partnership, or otherwise) has
been taken by Buyer in connection with entering into this
Agreement and the instruments referenced herein and the
consummation of the transactions contemplated hereby. No
consent is required which has not been obtained to permit Buyer to
enter into this Agreement and consummate the transaction hereby;
and
(d) The entering into this Agreement does not violate any provision of
any other agreement to which Buyer is bound.
12,2 Selleros Represeorjs_@R Warranties. Seller here•y ma es
following representations and warranties to Buyer, each of Which is true in all respec
as of the date hereof and shall be true in all respects on the Closing Date: I
(b) Seller has the legal power, right, and authority to execute deliver
and perform Seller's obligations under this Agreement �nd the
documents executed and delivered by Seller pursuant hereto;
(c) All requisite action has been taken by Seller in connection With
entering into this Agreement and the instruments referenced herein
and the consummation of the transactions contemplated hereby.
No consent is required which has not been obtained to permit
Seller to enter into this Agreement and consummate the
transactions contemplated hereby;
(d) To Seller's actual knowledge, the entering into this Agreement does
not violate any provision of any other agreement to which Seller is
bound;
(e) To Seller's actual knowledge, there is no pending or threatened
litigation, lawsuit or administrative proceeding which would
adversely affect the Property;
(f) To Seller's actual knowledge, there are no contracts or eases
affecting the Property and no agreements entered into, by or under
Seller which will survive the Close of Escrow; and
(g) Seller has no knowledge of the presence of any Hazardous
Materials on the Property, or any portion thereof, and Seller has not
698/013610-0002
7460866.3 PM14 -14-
been advised or notified by any third parties, prior owners of the
Property, • any -•- state • • governmental agency, • the
• • any Hazardous Materials • the Property.
12.3 Seller's Knowledge. Throughout this Agreement, terms such as "to
Seller's actual knowledge," "Seller has no actual knowledge," or like phrases mean the
actual present and conscious awareness or knowledge, without a duty to inquire or
investigate, of the City Manager of the City of La Quinta, or the Planning Director of the
City • La Quinta.
12.4 Change in Circumstances. In the event Seller becomes aware of a
change in circumstance during the term of the Escrow which would cause any of the
representations • warranties • Seller under this Agreement to be untrue, Seller shall
advise Buyer • such change in circumstance in writing within five (5) business days
from Seller's discovery thereof. Buyer shall then have five (5) business days from
• • such notice from Seller to • written notice to Seller of Buyer's election to
either (i) terminate this Agreement, or (ii) waive objection to such change in
circumstance and to accept title to the Property • to such change in circumstance.
Buyer's failure to • Seller in writing within said five (5) business •. period shall
conclusively be deemed Buyer's election to waive objection to such change in
circumstance and to proceed to close this Escrow subject to such change in
circumstance.
With the exception • the limited representations and warranties expressly set
forth in Section 12 of this Agreement, Seller has not at any time made and is not now
making, and Seller specifically disclaims, any representations or warranties of any kind
or character, express or implied, with respect to the Property, or any improvements
thereon, including, but not limited to, representations or warranties as to (a) matters of
title, (b) environmental matters relating to the Property or any portion thereof, including,
without limitation, the existence or lack thereof of Hazardous Materials (as defined
below) in, on, under or in the vicinity of the Property, or migrating to or from the
Property, either in soil, vapors or surface water or groundwater, (c) geological
conditions, including, • limitation, subsidence, • conditions, water table,
underground water reservoirs, limitations regarding the withdrawal • water, and
geologic faults and the resulting damage • •. and/or future faulting, • whether, and
the extent to which, the Property or any portion thereof is affected by any stream
(surface • underground), ••• of water, wetlands, ••f! prone area, flood •
floodway or special flood hazard, (e) drainage, (� soil conditions, including the existence
of instability, • soil '•. soil additions • conditions • • fill, • susceptibility to
landslides, • the sufficiency • any undershoring, • the presence • endangered
species or any environmentally sensitive or protected areas, (h) zoning • building
entitlements •' which the Property or any portion thereof may be subject,
availability • any utilities to the Property • any portion thereof including, •
limitation, water, sewage, gas and electric, 0) the permitted uses and restrictions on
uses on the Property, (k) usages of adjoining property, (1) access to the Property or any
698/015610-0002
7460866.3 PM 14
areas, as Buyer deems necessary, in accordance with law, Buyer, therefor
individually r collectively,for • its members,partners,officers, director
employees, agents, successors, assigns, and all entities related to any of the foregoin
and on behalf of all persons claiming any interest in the Property or this Agreemen
including but • limited to any and all future owners,- and/or operators, of
Property and their successors, hereby expressly waives, releases, discharges an
forever relinquishesand all claims, rightsof : •n, causes of action,• • •
remedies Buyer or - have, whether knownor • `• •
contingent, against Seller and Seller's members, officers, officials,•
employees, representatives, and agents (a) regarding any matters affecting th
Property and any condition of the Property whatsoever; and (b) regarding: (i) th
existence or potential existence of any Hazardous Materials in, on, under, within
migrating to or from the Property, either in soil, vapor, surface water or groundwate
• (ii) any violationsor 'i'• violations of •nmental Laws regarding th
Property.
BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR
WITH THE PROV• OF . •• . CIVIL CODE,
• •-BELOW:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH TH
CREDITOR DOES NOTi OR SUSPECT TO EXIST IN His OR HER FAVOR
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
. HE
MUST HAVE MATERIALLY It OR -
SETTLEMENT WITH TH
DEBTOR."
-on W-11TA1 •'
BY INITIALING BELOW, BUYER HEREBY WAIVES AND RELEASES ANY AND
ALL
RIGHTS PROVIDEDr..:. - THE PROVISIONS OF •N 1542 AND ALL
SIMILAR OR RELATED STATUTES THERETO, IN CONNECTION
RELEASES:MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND
. r y
Buyer acknowledges d agrees that the disclaimers, waivers and releases
along with the other agreern ts set forth in this Section are all an integral part of this
698/015610-0002
74608663 PM14 -17-
& Safety Code § 25500 et seq.), the Carpenter -Presley -Tanner Hazardous Substances
Account Act (California Health and Safety Code, Section 25300 et seq.), the California
Underground Storage of Hazardous Substances Laws (Chapter 6.7 of Division 20 of the
Cal. Health and Safety Code, §25280 et sec.) and the California common laws of
nuisance, trespass, waste and ultra -hazardous activity.
14. DAMAGE DESTRUCTION AND CONDEMNATION.
14.1 Risk of Physical Loss. Seller, prior to the Closing, shall promptly notify
Buyer in writing of any fire, casualty, or other damage (other than de minimis damage)
to the Property of which Seller has knowledge (as that term is defined below). In the
event that the Property is damaged by fire, flood, earthquake or other casualty, Buyer
may terminate this Agreement, provided notice of such termination is delivered to Seller
within five (5) business days following the date Buyer learns of the occurrence of such
casualty, and, provided further, that Buyer shall not have caused such casualty or other
damage to the Property. If Buyer fails to terminate this Agreement pursuant to the
foregoing sentence within said five (5) business day period, Buyer shall complete the
acquisition of the Property, in which case Seller shall have the right to assign to Buyer
the interest of Seller in all insurance proceeds relating to such damage. Seller shall
consult with Buyer regarding any proposed settlement with the insurer and Buyer shall
have the reasonable right of approval thereof. Seller shall hold such proceeds until the
Close of Escrow. In the event this Agreement is terminated for any reason, Buyer shall
have no right to any insurance proceeds. As used in this Section 14.1, the term
"knowledge" shall mean the actual (not constructive or imputed) knowledge of Seller's
City Manager, without any investigation or inquiry or duty of investigation or inquiry.
14.2 Conde_mnatisn In the event that, prior to the Close of Escrow, any
governmental entity shall commence any proceedings of or leading to eminent domain
or similar type proceedings to take all or any portion of the Property, Buyer or Seller
shall promptly meet and confer in good faith to evaluate the effect of such action on the
purposes of this Agreement, and following such meeting, either Buyer or Seller may.
terminate this Agreement.
15. WAIVER OF DAMAGES: -SPECIFIC PERFORMANCE. In the event a party
defaults under this Agreement, the non -defaulting party's sole and exclusive remedy will
be for specific performance of this Agreement. EACH PARTY HEREBY WAIVES ANY
RIGHT TO PURSUE DAMAGES RESULTING FROM A DEFAULT OR BREACH OF
THIS AGREEMENT, AND IN NO EVENT SHALL THE DEFAULTING PARTY BE
LIABLE FOR DAMAGES FOR A DEFAULT OR BREACH OF DEFAULTING PARTY'S
OBLIGATION UNDER THIS AGREEMENT, ALL OF WHICH RIGHTS ARE HEREBY
WAIVED AND RELINQUISHED BY THE NON -DEFAULTING PARTY. The parties
agree that the foregoing limitation on their respective remedies and measure of
damages is reasonable under all of the circumstances of this Agreement, and is
material consider ion f r the parties entering into this"." �eement.
ell nitials Buy s Initials
69810156IM001
74608663 PO - t 9-
Buyer shall defend, indemnify, assume all responsibty for, and hold the City, and the
City's representatives, volunteers, officers, employees and agents, harmless from any
and all claims, demands, damages, defense costs or liability of any kind (including
attorney's fees and costs), that arise from this Agreement (other than those damages
caused by the breach of the Agreement by City or by the negligence or willful
misconduct of the City's representatives, officers, employees and agents) including, but
not limited to, Buyer's failure to pay, if required, prevailing wages. The indemnification
in this Section is in addition to all other indemnity provided for the benefit of the Seller in
this Agreement and shall survive the Close of Escrow.
16.1 Assignment. This Agreement shall be binding upon and shall inure to th
benefit of Buyer and Seller and their respective heirs, personal representative
successors and assigns. Neither party to this Agreement may assign this Agreement
any interest or right hereunder or under the Escrow without the prior written consent an
approval of the other party, which consent and approval may be withheld in the sole an
absolute discretion of either party. No provision of this Agreement is intended nor sh
in any way be construed to benefit any party not a signatory hereto or to create a thi
party beneficiary relationship.
16.2 Attornev's Fees. in the event of any action between Buyer and Sell -I,
seeking enforcement of any of the terms and conditions to this Agreement (includin
any attachment or exhibit to this Agreement), the Escrow, or otherwise in connecti
with the Property, the prevailing party in such action shall be awarded, in addition
damages, injunctive or other relief, its reasonable costs and expenses, including witho
limitation its expert witness fees and reasonable attorney's fees. �1
16.3 Notices. All notices under this Agreement shall be effective Up 'n on perso
delivery, delivery by reputable overnight courier such as Federal Express that provid(
a receipt with the date and time of delivery, or three (3) business days after deposit
the United States mail, registered, certified, postage fully prepaid and addressed to t
respective parties as set forth below or as to such other address as the parties ma
from time to time designate in writing: .1
To Seller: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: City Manager
Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: William H. lhrke, Esq.
698/015610-0002
74608663 PM14 -20-
To Buyer Desert Land Holdings
42-335 Washington Street, Suite F # 340
La Quinta, CA 92211
Attn: Jim Snellenberger, C.E.O. & Presidel
16.4 Fair Meanim This Agreement shall be construed according to its fair
meaning and as if prepared by both parties hereto.
16.5 Headings. The headings at the beginning of each numbered Section
this Agreement are solely for the convenience of the parties hereto and are not a part
this Agreement.
16.6 Choice of Laws: Lilig-ation Matters. This Agreement shall be governed by
the internal laws of the State of California and any question arising hereunder shall be
construed or determined according to California law without regard to conflict of law
principles. 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 Seller shall be made in accordance with California law. Service of process
on Buyer shall be made in any manner permitted by California law and shall be effective
whether served inside or outside California.
16.7 Nonliability of Seller Officials. No officer, official, member, employee,
agent, or representatives of Seller shall be liable for any amounts due hereunder, and
no judgment or execution thereon entered in any action hereon shall be personally
enforced against any such officer, official, member, employee, agent, or representative.
16.8 Gender; Number. As used in this Agreement, masculine, ferninim an@
neuter gender and the singular or plural number shall be deemed to include the othel
wherever and whenever the context so dictates. M
16.9 Survival. This Agreement and all covenants to be performed after the
Closing, and, except as otherwise set forth herein, all representations and warranties
contained herein shall survive the Closing Date and shall remain a binding contract
between the parties hereto.
16.10 Time of Essence. Time is of the essence in this Agreement and in ea
and every term and provision hereof, it being understood that the parties hereto ha
specifically negotiated the dates for the completion of each obligation herein, I
16.11 Wa �iver or Modification. A waiver of a provision hereof (which provision
may be waived), or modification of any provision herein contained, shall be effective
only if said waiver or modification is in writing, and signed by both Buyer and Seller. 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.
698/015610-0002
74608663 PM14 -21-
16,12 Broker's Fees, Seller and Buyer represent and warrant to the other t
neither Buyer nor Seller has employed any real estate broker to represent its interest i
this transaction. Each party agrees to indemnify, defend (with counsel of th
indemnified party's choosing), and hold the other party free and harmless from anili
against any and all liability, loss, cost, or expense (including court costs and reasonabl
attorney's fees) in any manner connected with a claim asserted by any individual
entity for any broker's commission in connection with the conveyance of the Prope
arising out of agreements by the indemnifying party to pay any commission.
16.13 No Withholding Because Non -Foreign Seller. Seller represents an
warrants to Buyer that Seller is not, and as of the Close of Escrow will not be, a foreig
person within the meaning of Internal Revenue Code Section 1445 or an out-of-sta
seller under California Revenue and Tax Code Section 18805 and that it will deliver
Buyer on or before the Close of Escrow a Certificate of Non -foreign Status on Escro
Holder's standard form pursuant to Internal Revenue Code Section 1445(b)(2) and th
regulations promulgated thereunder and a California Form 593-C.
16.14 Severability. If any term, covenant or condon of this Agreement or th
application thereof to any person, entity, or circumstance shall, to any extent, be invali
or unenforceable, the remainder of this Agreement, or the application of such ter
covenant, or condition to persons, entities, or circumstances other than those as•
which it is held invalid or unenforceable, shall not be affected thereby and each ter
covenant or condition of this Agreement shall be valid and enforceable to the fulle
extent permitted by law.
16,15 Exhibits, The following exhibits are attached hereto and incorpora
herein by this reference: I
Exhibit "A" Legal Description of Property
Exhibit "B" Grant Deed
Exhibit "C" Non -Foreign Affidavit
16.16 Covenants of Seller. Seller agrees that during the period between t
Effective Date of this Agreement and the Closing Date:
(a) Seller shall maintain the Property in hot less than the state of repair
as that existing on the Effective Date (excepting ordinary wear and tear);
(b) Seller shall not convey, grant, lease, assign, mortgag6j
hypothecate, encumber, or otherwise transfer (on or off record) the Property or a
interest therein; I
(c) Seller shall not alter the physical condition of the Property or
introduce or release, or permit the introduction or release, of any Hazardous Material
C
from, under, or on the Property;
698/015610-0002
74608663 PM14 -22-
16,17 Covenant Aqainst Discrimination, Buver covenants that in its performance
if this Agreement that it shall not discriminate against any person or group of persons
fm account of any impermissible classification including but not limited to race, color,
creed, gender, religion, marital status, national origin, or ancestry.
16,18 Entire Agreement; Amendment. Except as set forth above, thi
Agreement and the attachments and exhibits incorporated herein contain the entirz
agreement of Buyer and Seller with respect to the matters contained herein, and no
prior agreement or understanding pertaining to any such matter shall be effective f
any purpose. No provisions of this Agreement may be amended or modified in all
manner whatsoever except by an agreement in writing signed by duly authorize#
officers or representatives of each of the parties hereto. I
16-19 Counterparts. This Agreement may be executed in any number of
duplicate originals� all of which shall be of equal legal force and effect.
16.20 Facsimile Signatures. Signatures of the parties transmitted by facsimile
shall be deemed binding. However, each party agrees to submit their original signatur�.'
to the other party within five (5) business days after execution hereof.
OTT
NEERIM"I RUL
698/015610-0002
74608663 PM14 -23-
IN WITNESS WHEREOF, Buyer and Seller 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.
CITy OF LA QUINTA,
a Mu 'pi al Corporati
B'
ATTEST: FrandSpgyAlk, City manager
City of La Quinta, California
Susan Maysels, City Clerk, City of La Quinta
APPROVED AS TO FORM: .
RUTAN & TUCKER, LLP
William H. Ihrke, City Attorney'
City of La Quinta, California "Buyer"
— DESERT LAND HOLDINGS L.L.C, a California
limited liability: ompany.
By: .
Jill pellenberger
of Executive Office & President
698/015610-0D02
7460866,3P914 -24-
Fidelity National Title escrow (Kim Larby) located at 40004 Cook Street, Suite 2, Pal
Desert, CA 92211 • 776-6782, agrees to act as Escrow Holder in accordance wi
the terms of this Agreement. All parties are aware that the Buyer in this transaction h
an ownership interest in Escrow Holder. I
Name,
Its:
698/015610-0002
74608663 PM14 -25-
EXHIBIT g&A9p
EXHIBIT "A"
698/015610-0002
74608663 PM14 - I -
Desert Land Holdings, LLC Acquisition
October 28, 2014
City of La Quinta
¢� Planning Division
:;,_�;1z-' Community Development Department
I Mol zi J, Lei
EXHIBIT "B"
698/015610-0002
74608663 PMN - I -
Recording Requested By and
When Recorded Return to:
Desert Land Holdings L.L.C.
42-335 Washington Street, Suite F # 340
La Quinta, CA 92211
Attn: Jim Snellenberger, C.E.O. & President
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
the CITY OF LA QUINTA, a Municipal Corporation (the "Grantor"), hereby grants to
DESERT LAND HOLDINGS L.L.C., an California Limited liability company ("Grantee"),
that certain real property ("Property") located in the City of La Quinta, County of
Riverside, State of California, described in the legal description attached hereto as
Attachment No. 1 and incorporated herein by this reference, subject to all matters of
record.
"Grantor"
CITY OF LA QUINTA,
a California municipal corporation
By.
ATTEST:
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
City Attorney
6981015610-0002
74608663 PM14 -1-
1391911111 E
YAFPJE -
E=
On before me,
(insert name and title of the officer)
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 Californi
that the foregoing paragraph is true and correct.
Signature (Seal)
State of California
County of Riverside
(insert name and title of the officer)
Notary Public, personally appeared ml-1-1
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 Californ
that the foregoing paragraph is true and correct. i
&M
698/015610-0002
74608663 PM14 -2-
The following described real property in the City of La Quinta, County
Riverside, State of California: I
698/015610-0002
7460866.3 PM14
EXHIBIT "C"
AFFIDAVIT OF NON -FOREIGN ENTITY
TO: DESERT LANDHOLDINGS L.L.C. ("Buyer")
The Internal Revenue Code of 1954 ("Code") (26 U.S.C. Sections 1445, 7701) provides
that a transferee of a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform the transferee that withholding of tax is not required upon
transfer of that certain U.S. real property interest described in Exhibit "A" to the
Agreement for Purchase and Sale and Escrow Instructions dated , 2014, and
incorporated herein by reference ("Property"), that the undersigned ("Seller") hereby
certifies the following:
1. Seller is not a foreign corporation, foreign partnership, foreign trust or foreign
estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations); and
2. The U.S. taxpayer identification number for Seller is 95-3740431; and
3. The address for mailing purposes of Seller is: 78-495 Calle Tampico, La Quinta,
California 92253; and
4. Seller understands that this certification may be disclosed to the Internal
Revenue Service by Buyer and that any false statement contained herein could
be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this Certification and to the
best of my knowledge and belief, it is true, correct, and complete, and I further declare
that I have authority to sign this document on behalf of Seller.
Dated:
2014
CITY OF LA QUINTA, a Municipal Corporation
EXHIBIT "C"
698/015610-0002
7460866.3 YM14 4-