2014 SR Dev Co/TOT Share Agr - Luxury HotelAGREEMENT TO SHARE TRANSIENT OCCUPANCY TAX REVENUE
This AGREEMENT TO SHARE TRANSI NT OCCUPANCY TAX REVENUE (the
"Agreement") is entered into this lq !� day of WoV614666t, 2014, by and between the
CITY OF LA QUINTA, a California municipal corporation and charter city ("City"), and
SILVERROCK DEVELOPMENT COMPANY, LLC, a Delaware limited liability company
("Participant") (individually a "Party" and collectively the "Parties").
RECITALS
A. City and Participant are parties to that certain Purchase, Sale, and
Development Agreement (the "PSDA"), pursuant to which City has agreed to sell to
Participant certain real property in the City of La Quinta, County of Riverside, State of
California (the "Development Property"), and Participant has agreed to develop and
cause to be operated thereon a commercial project containing hotels and associated
amenities, branded residential units, a mixed use village, and a resort residential village
(the "Development Project").
B. Pursuant to the PSDA, (i) City has agreed to convey to Participant fee title
to a portion of the Development Property designated in the PSDA and in the site map
attached hereto and incorporated herein as Exhibit "A" as PA 2 (the "Site"), and (ii)
Participant has agreed to develop on the Site the hotel defined in the PSDA as the
Luxury Hotel (the "Hotel").
C. Pursuant to the PSDA, Participant is required to enter into a hotel
management agreement and all ancillary agreements, including, without limitation, a
technical services agreement, hotel brand licensing agreement, and use and access
development agreement (collectively, a "Hotel Management Agreement"), with a City -
approved hotel operator (the "Hotel Manager"), who shall be responsible for the
management and operation of the Hotel pursuant to the terms of the Hotel Management
Agreement.
D. In consideration for Participant's execution of an Agreement Containing
Covenants, Conditions, and Restrictions Affecting Real Property substantially in the
form attached hereto and incorporated herein as Exhibit "B" (the "Covenant
Agreement"), City has agreed to make certain periodic payments to Participant to
assist Participant in the continued operation of the Hotel, in an amount equal to a
portion of the transient occupancy tax generated by the Hotel (the "Transient
Occupancy Tax"), subject to and in accordance with the other terms and conditions set
forth in this Agreement and the Covenant Agreement.
E. By its approval of this Agreement, the City Council of City has found and
determined as follows: (i) that the value to City of Participant's performance of its
obligations set forth in the Covenant Agreement in each fiscal year during which City
payments are to be made (in terms of economic revitalization, generation of additional
local tax revenues that will help to fund vital public services, provision of expanded and
more accessible hotel guest rooms and related amenities for persons wishing to visit the
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City of La Quinta for business or pleasure, and job growth and retention) will be not less
than the amount of such payments; and (ii) that the imposition of the covenants and use
restrictions upon the Site pursuant to the Covenant Agreement in exchange for the
payments to be made by City constitutes a valid public purpose.
COVENANTS
Based upon the foregoing Recitals, which are incorporated herein by this
reference, and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by both Parties, City and Participant hereby agree as follows:
1. Defined Terms. Any capitalized terms contained in this Agreement, which
are not defined in this Agreement, shall have the meanings ascribed to such terms in
the Covenant Agreement.
2. Execution and Recordation of Covenant Agreement. Concurrently with
City's and Participant's execution of this Agreement, Participant shall fill in the blanks,
date, and execute, with signatures notarized, the Covenant Agreement. At the "Phase 1
Closing" (as that term is defined in the PSDA), Participant shall record the Covenant
Agreement against the Site and provide a copy of the recorded Covenant Agreement to
City. City agrees to cooperate in the recordation of the Covenant Agreement against
the Site, at no cost to City, and the City Manager or his designee is hereby authorized
on behalf of City to execute all documents and take all actions necessary or appropriate
to implement this Agreement.
3. Termination of Agreement. This Agreement shall automatically terminate
and be of no further force or effect upon termination of the Covenant Agreement, in
accordance with the terms thereof. City shall, within ten (10) days following the
termination of this Agreement, cause the Covenant Agreement to be released from
record title to the Site by recording in the Official Records of Riverside County such
documents as a nationally recognized title company shall reasonably require for such
purpose.
4. Assignment. Except as otherwise set forth in the Covenant Agreement or
otherwise in connection with a transfer or transfers of interests in the Development
Property and/or the Development Project allowable pursuant to Section 603 of the
PSDA, Participant shall not assign, hypothecate, encumber, or otherwise transfer any of
its rights and/or obligations set forth in this Agreement and/or the Covenant Agreement
to any other person or entity without City's prior written consent, which consent City may
grant or withhold in its sole and absolute discretion.
5. Cooperation in the Event of Legal Challenge; Validation_ Action. In the
event any third party files an action seeking to invalidate this Agreement or the
Covenant Agreement or seeking any equitable remedy that would prevent the full
performance hereof or thereof, City and Participant agree to cooperate in the defense of
such action. Such cooperation shall include, without limitation: (i) an agreement by
each Party to not default or allow a compromise of said action without the prior written
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consent of the other Party; (ii) an agreement by each Party to make available to the
other Party all non -privileged information necessary or appropriate to conduct the
defense of the action; and (iii) an agreement by each Party to make available to the
other Party, without charge, any witnesses within the control of the first Party upon
reasonable notice who may be called upon to execute declarations or testify in said
action. Participant shall pay all of City's costs and expenses (including reasonable
attorney's fees) and City shall have the sole right to select its legal counsel; provided
however, Participant shall have the right, exercisable upon written notice to City, to
retain counsel of Participant's choice, but subject to City's reasonable approval, to
defend City against any such third party action, in which event Participant shall not be
responsible for any costs incurred by City in connection with the defense of such third
party action.
In addition to the foregoing, if Participant delivers a written request for such
action to City (c/o the City Manager) not later than thirty (30) days after the date the City
Council of City approves this Agreement at a public meeting, City shall file an action in
Riverside County Superior Court pursuant to California Code of Civil Procedure
Section 860 et seq. to validate this Agreement and the Covenant Agreement and each
and every one of its and their provisions. In such event, City and Participant shall
reasonably cooperate in drafting the complaint, briefs, the proposed judgment of
validation, and such other pleadings, documents, and filings as may be required or
desirable in connection with the validation action. City and its legal counsel shall file
and prosecute the validation action, but shall reasonably coordinate and cooperate with
Participant concerning the drafting of pleadings and other documents and with regard to
the litigation strategy to be employed. Participant shall reimburse City within fifteen (15)
days after written demand therefor for all reasonable costs ("Costs") of the validation
action actually incurred by City. Costs include without limitation, reasonable attorney's
fees, filing fees and court reporter fees (if any), costs of publication and to effectuate
service of process, reasonable photocopying and other reproduction charges, travel
time and mileage expenses, and other costs and expenses reasonably incurred by City.
In the event of an appeal of such action, the Parties shall cooperate with respect to the
appeal to the same extent as at the Superior Court level of the proceedings.
Upon the entry of a final non -appealable judgment of any court with jurisdiction
invalidating or enjoining the performance of any material covenant set forth in this
Agreement or the Covenant Agreement, this Agreement and the Covenant Agreement
shall automatically terminate without the need of further action by either Party, except
that any reimbursement obligations of either Party shall survive such termination.
6. Compliance with Laws. During the entire Operating Period, Participant
shall cause the Hotel to be operated on the Site in conformity with all applicable federal,
state, and local laws, ordinances, and regulations, the requirements of the PSDA, and
any other discretionary permits issued by City for the Hotel, including, without limitation,
all of the conditions of approval issued in connection therewith.
Nothing herein constitutes a representation or warranty by City that the
construction of the Hotel was not a "public work" or otherwise subject to California
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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 Participant expressly waives any right of
reimbursement for any "increased costs" under California Labor Code Section 1781 or
otherwise with respect to the Hotel or Participant's development thereof. Participant
shall indemnify, defend, and hold City and City's representatives, volunteers, officers,
officials, members, employees, and agents harmless, including, but not limited to,
litigation costs, expert witness fees, and reasonable attorneys' fees, from and against
any and all claims pertaining to the payment of wages in connection with Participant's
development of the Hotel on the Site or failure to comply with federal or state labor laws,
regulations, or standards.
7. Compliance with Hotel Management Agreement. During the entire
Operating Period, Participant shall cause the Hotel to be operated on the Site in
conformity with all of the requirements set forth in the Hotel Management Agreement.
8. Representation and Warranty Regarding Hotel. As of the Commencement
Date, Participant represents and warrants to City that (i) the Hotel Management
Agreement is in full force and effect, (ii) Participant is not in material default of any of its
obligations under the Hotel Management Agreement, and (iii) there are no existing
conditions or occurrences that, with the passage of time, would constitute a material
default under the Hotel Management Agreement.
9. Integration and Amendment. This Agreement and the Covenant
Agreement attached hereto constitute the entire agreement by and between the Parties
pertaining to the specific subject matter hereof, and supersede all prior agreements and
understandings of the Parties with respect thereto. This Agreement may not be
modified, amended, or otherwise changed except by a writing executed by both Parties.
10. Notices. Notices to be given by City or Participant hereunder may be
delivered personally or may be delivered by certified mail or by reputable overnight
delivery service providing a delivery confirmation receipt, with mailed notices to be
addressed to the appropriate address(es) hereinafter set forth or to such other
address(es) that a Party may hereafter designate by written notice. If served by
overnight delivery service or certified mail, service will be considered completed and
binding on the Party served on the date set forth in the confirmation or certification
receipt. If delivered personally, service will be considered completed and binding on the
Party served on the date of such personal delivery.
If notice is to City: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attention: Frank J. Spevacek, City Manager
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7762589.1 a11/19/14 -4-
with a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attention: William H. Ihrke, City Attorney
If notice is to Participant: SilverRock Development Company, LLC
c/o The Robert Green Company
3551 Fortuna Ranch Road
Encinitas, CA 92024
Attention: Robert S. Green, Jr.
SilverRock Development Company, LLC
c/o Meriwether Companies
11999 San Vicente Blvd., Suite 220
Los Angeles, CA 90049
Attention: Graham Culp
with a copy to: Glaser Weil LLP
10250 Constellation Blvd., 19th Floor
Los Angeles, CA 90067
Attention: Saul Breskal
11. Authority to Execute. 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.
12. Counterparts. This Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which, when taken together, shall constitute one and the same
instrument.
13. Legal Actions. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California without regard to conflict of
law principles.
In addition to any other rights or remedies and subject to the restrictions in this
Agreement, including without limitation in Section 5 and in this Section 13, either Party
may institute legal action to seek specific performance of the terms of this Agreement,
or to cure, correct or remedy any default, or to obtain any other legal or equitable
remedy consistent with the purpose of this Agreement. City shall also have the right to
pursue damages for Participant's defaults but in no event shall Participant be entitled to
recover damages of any kind from City, except for damages up to, but not exceeding,
the amount that Participant would have received under this Agreement but for City's
default of its covenants under this Agreement, but excluding damages for economic
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loss, lost profits, or any other economic or consequential damages of any kind. Such
legal actions must be instituted in the Superior Court of the County of Riverside, State of
California, or in the Federal District Court in the Central District of California. In the
event of any litigation between the Parties hereto, the prevailing Party shall be entitled
to receive, in addition to the relief granted, its reasonable attorney's fees and costs and
such other costs incurred in investigating the action and prosecuting the same, including
costs for expert witnesses, costs on appeal, and for discovery.
14. Nonliability of City Officials. No member, official or employee of City shall
be personally liable to Participant, or any successor in interest, in the event of any
Default or breach by City or for any amount which may become due to Participant or its
successors, or on any obligations under the terms of this Agreement or the Covenant
Agreement.
[End — Signature page follows]
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7762589.1 a11/19114 -6-
IN WITNESS WHEREOF, City and Participant have executed this Agreement to
be effective as of the date first set forth above.
Date: I `9 2014
ATTEST:
By. �;Z� �h�
Susan Maysels, City CI qk,
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
"City"
CITY OF LA QUINTA,
a California municipal corp ation and charter
By: -- - -
William H. Ihrke, City Attorney
"Participant"
SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company
By: MC SilverRock LLC,
a Colorado limited liability company
Its: Co -Manager
Date: 2014By: SIGNED INT COUNTERPART
Name: Graham Culp
Its: Manager
Date:
By: RGC La Quinta, LLC,
a Delaware limited liability company
Its: Co -Manager
By: The Robert Green Company,
a California corporation
Its: Manager
SIGNED IN COUNTERPART
, 2014 By:
Name: Robert S. Green, Jr.
Its: President and Chief Executive
Officer
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IN WITNESS WHEREOF, City and Participant have executed this Agreement to
be effective as of the date first set forth above.
Date:
ATTEST:
"City"
CITY OF LA QUINTA,
a California municipal corporation and charter
city
.2014 Bv:
SIGNED IN COUNTERPART
Susan Maysels, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
SIGNED IN COUNTERPART
By:
William H. Ihrke, City Attorney
SIGNED IN COUNTERPART
Frank J. Spevacek, City Manager
"Participant"
SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company
By: MC SilverRock LLC,
a Colorado li7--
Name:
' liability ompany
A
Its: Co-ManageAll
Date: VC h �y 2014 gy.
Graham Culp
Its: Manager
Date:
By: RGC La Quinta, LLC,
a Delaware limited liability company
Its: Co -Manager
By: The Robert Green Company,
a California corporation
Its: Manager
SIGNED IN COUNTERPART
12014 By:
Name: Robert S. Green, Jr.
Its: President and Chief Executive
Officer
882/015610-0065
77625891 a11/19/14 -7-
IN WITNESS WHEREOF, City and Participant have executed this Agreement to
be effective as of the date first set forth above.
Date:
ATTEST:
0
2014
SIGNP) IN CU W1 [. P,,kR'4.
Susan Maysels, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
SIGNED IN COiJNrERPARr
William H. Ihrke, City Attorney
Date:
2014
Date: N&WA49w 1-01 2014
"City"
CITY OF LA QUINTA,
a California municipal corporation and charter
city
SIGNED IN COUNTERPART
Frank J. Spevacek, City Manager
"Participant"
SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company
By: MC SilverRock LLC,
a Colorado limited liability company
Its: Co -Manager
SIGNED IN COUNTERPART
By:
Name: Graham Culp
Its: Manager
By: RGC La Quinta, LLC,
a Delaware limited liability company
Its: Co -Manager
882/015610-0065
7762589.1 a11/19/14 -7-
By: The Robert Green Company,
a California corporation
Its: Man
By:
Name: Robert S. Teen, Jr.
Its: President and Chief Executive
Officer
EXHIBIT "A"
SITE MAP
J LUXURY BRANDED — -
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MASTER PLAN
SILVERROCK RESORT
LAQUIN"IA, CALIFORNIA
✓�/ 4. R 1 W L I II 4 N RIll11 IlT GIlL4N
pro
7762589.1 a0069/14 EXHIBIT "A"
EXHIBIT "B"
AGREEMENT CONTAINING COVENANTS, CONDITIONS, AND RESTRICTIONS
AFFECTING REAL PROPERTY
[See following document]
886252/015610-0065 79.19/14 EXHIBIT "B"
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
[SPACE ABOVE FOR RECORDER.]
EXEMPT FROM RECORDER'S FEE PER GOV. CODE §27383
AGREEMENT CONTAINING COVENANTS, CONDITIONS, AND RESTRICTIONS
AFFECTING REAL PROPERTY
This AGREEMENT CONTAINING COVENANTS, CONDITIONS, AND
RESTRICTIONS AFFECTING REAL PROPERTY (the "Covenant Agreement") is
entered into as of this day of . 2014 ("Covenant Agreement
Effective Date"), by and between the CITY OF LA QUINTA, a California municipal
corporation and charter city ("City"), and SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company ("Owner") (individually a "Party" and
collectively the "Parties").
RECITALS
A. City is the owner of that certain real property located in the City of La
Quinta, County of Riverside, State of California, which is more particularly described in
the legal description attached hereto as Exhibit No. 1 and incorporated herein by this
reference (the "Site").
B. City has agreed to sell to Owner the Site pursuant to that certain
Purchase, Sale, and Development Agreement entered into by and between City and
Owner on or about the same date hereof (the "PSDA:'). The PSDA sets forth the terms
and conditions for City to sell to Owner the Site and certain adjacent real property
(collectively, the "Development Property"), and for Owner to thereafter develop and
operate on the Development Property a commercial project containing hotels and
associated amenities, branded residential units, a mixed use village, and a resort
residential village (the "Development Project").
C. Pursuant to the PSDA, Owner has agreed to develop on the Site a portion
of the Development Project consisting of the hotel defined in the PSDA as the Luxury
Hotel (the "Hotel").
D. Pursuant to the PSDA, Participant is required to enter into a hotel
management agreement and all ancillary agreements, including, without limitation, a
technical services agreement, hotel brand licensing agreement, and use and access
development agreement (collectively, a "Hotel Management Agreement"), with a City -
approved hotel operator (the "Hotel Manager"), who shall be responsible for the
882/015610-0065
7762589.1 a11/19/14 '1'
management and operation of the Hotel pursuant to the terms of the Hotel Management
Agreement.
E. Concurrently herewith, City and Owner have entered into that certain
unrecorded Agreement to Share Transient Occupancy Tax Revenue (the "Agreement")
which provides for the recordation of this Covenant Agreement against the Site.
F. In consideration for Owner's rights and obligations set forth in the
Agreement and within this Covenant Agreement, City has agreed to make certain
payments to Owner, the amount of which are measured by the "Transient Occupancy
Tax" (as that term is defined below) generated by the operation of the Hotel on the Site.
City and Owner have agreed that the portion of Transient Occupancy Tax required to be
paid by City to Owner hereunder during each "Payment Period" of the "Operating
Period" (as those terms are defined below) provided for herein is a fair exchange for the
consideration to be furnished by Owner to City in that Payment Period.
COVENANTS
Based upon the foregoing Recitals, which are incorporated herein by this
reference, and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged by both Parties, City and Owner hereby agree as follows:
1. DEFINED TERMS.
In addition to the terms that may be defined elsewhere in this Covenant,
Agreement, the following terms when used in this Covenant Agreement shall have the
meanings set forth below:
The term "Affiliate" shall mean any corporation, partnership, limited liability
company or other organization or entity which is Controlled by, Controlling or under
common Control with (directly or indirectly) Owner.
The term "Aggregate Preopening Expenses" shall mean all hard and soft costs
actually incurred by Owner in connection with the Hotel prior to the Commencement
Date including, without limitation, (i) permit fees and other entitlement costs, (ii)
professional fees and costs paid to architects, engineers, lawyers and accountants, (iii)
all horizontal and vertical construction costs including grading, excavation, demolition,
construction and landscaping, (iv) general and administrative development expenses,
(v) development fees, (vi) insurance premiums, (vi) property taxes, (vii) costs associated
with procuring construction financing and interest paid in connection with such
construction financing, (viii) the cost to purchase and install all furniture, fixtures and
equipment including, without limitation, all information systems hardware and software,
(ix) license fees, (x) costs to install and use utilities including electricity, water, gas,
telephone, internet and cable or satellite television, (xi) wages and other costs
associated with hiring and training employees prior to the opening of the Hotel to the
public, and (xii) the cost of all movable personal property and inventory required to open
the Hotel for business on the Commencement Date including, without limitation, linen,
bathroom supplies, food and beverages.
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The term "Agreement" shall have the meaning ascribed to it in Recital E of this
Covenant Agreement.
The term "Auditor" shall have the meaning ascribed to it in Section 4.1.3 of this
Covenant Agreement.
The term "Budgeted Preopening Expenses" shall mean all hard and soft costs
estimated to be incurred by Owner in connection with the Hotel prior to the
Commencement Date, as set forth in the Hotel Budget.
The term "Business Day" shall mean a calendar day which is not a weekend day
or a Federal or State holiday, and a day upon which the City is open for business.
The term "Commencement Date" shall mean the first day of the first full
calendar month following the date upon which the Hotel opens for business and accepts
its first paying overnight guest.
The term "Control", "Controlled" or "Controlling" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the management or
policies of an entity or person, whether through the ability to exercise voting power, by
contract or otherwise.
The term "Covenant Agreement" shall mean this Agreement Containing
Covenants, Conditions, and Restrictions Affecting Real Property.
The term "Covenant Payments" shall mean the amounts to be paid by City to
Owner with respect to each Payment Period during the Operating Period.
The term "Default' shall have the meaning ascribed to it in Section 5.1 of this
Covenant Agreement.
The term "Default Notice" shall have the meaning ascribed to it in Section 2 of
this Covenant Agreement.
The term "Estimated NOI Notice" shall have the meaning ascribed to it in
Section 4.1.2(a) of this Covenant Agreement.
The term "Gross Revenue" shall mean, for each Payment Period or Operating
Year (as applicable) during the Operating Period, all revenue generated by the Hotel
from all sources during such Payment Period or Operating Year (as applicable)
including, without limitation, room rentals, food and beverage sales, parking charges,
television charges, telephone charges and sundry services.
The term "Hotel" shall have the meaning ascribed to it in Recital C of this
Covenant Agreement.
The term "Hotel Budget' shall mean the budget of all hard and soft costs to be
incurred by Owner in connection with the development and opening of the Hotel
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(including costs of the type included within the definition of Aggregate Preopening
Expenses), which budget shall be prepared by Owner and delivered to City for review
and approval, which approval shall not be unreasonably withheld, prior to the
commencement of construction of the Hotel and which budget may be revised from time
to time subject to the reasonable approval of City.
The term "Hotel Management Agreement" shall have the meaning ascribed to it
in Recital D of this Covenant Agreement.
The term "Hotel Manager" shall have the meaning ascribed to it in Recital D of
this Covenant Agreement.
The term "Improvements" shall mean and include all buildings, structures,
fixtures, parking, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping,
and other improvements of whatsoever character to be constructed or performed by
Owner on the Site.
The term "Meriwether" shall mean Meriwether Companies LLC, a Delaware
limited liability company.
The term "Mortgage" shall mean any mortgage, deed of trust, pledge (including
a pledge of equity interests in Owner), hypothecation, charge, encumbrance or other
security interest granted to a lender, made in good faith and for fair value, encumbering
all or any part of Owner's interest in (i) this Covenant Agreement, (ii) the Site, (iii) the
Improvements, or (iv) any equity interest in Owner.
The term "Mortgagee" shall mean any mortgagee or beneficiary under any
Mortgage.
The term "Municipal Code" shall mean the La Quinta Municipal Code.
The term "Net Operating Income" shall mean, for each Payment Period or
Operating Year (as applicable) during the Operating Period, the Gross Revenue
generated by the Hotel during such Payment Period or Operating Year (as applicable),
less the Operating Expenses incurred in connection with the Hotel during such Payment
Period or Operating Year (as applicable).
The term "Operating Expenses" shall mean, for each Payment Period or
Operating Year (as applicable) during the Term, all ordinary expenses actually incurred
by Owner during such Payment Period or Operating Year (as applicable) and relating to
the operation and/or maintenance of all the facilities of the Hotel determined in
accordance with generally accepted accounting principles, including, without limitation,
(a) centralized sales and marketing expenses, (b) charges related to programs
implemented by the Hotel Manager and chargeable to the Owner, whether such
programs are optional or required under the Hotel Management Agreement (e.g., a
loyalty rewards program), (c) expenses incurred by the Hotel Manager and
reimbursable by the Owner pursuant to the Hotel Management Agreement, (d) hotel
personnel expenses including, without limitation, salaries, benefits and severance
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payments, (e) repair costs, (f) maintenance costs, (g) utility charges, (h) administrative
expenses, (i) costs of advertising, marketing and business promotion, (j) all amounts
payable to the Hotel Manager pursuant to the Hotel Management Agreement including,
without limitation, the management fee, (k) taxes, (1) insurance premiums and
deductibles, (m) capital expenditures, (n) expenditures on furniture, fixtures and
equipment, (o) funding of reserves required under the Hotel Management Agreement,
(p) "asset management" costs and expenses incurred by Owner's personnel in relation
to the Hotel, provided such costs and expenses do not exceed one percent (1%) of
Gross Revenue for the applicable Payment Period or Operating Year (as applicable),
(q) professional fees and costs including fees paid to attorneys, accountants, auditors
and appraisers, provided that the types and amounts of such fees and costs shall be
reasonable and consistent with the industry standard for such fees and costs, (r) capital
and equipment leases expenses, (s) costs of all goods and services provided to guests
and patrons in the normal course of business for all departments of the Hotel (t) permit
and license fees; provided, however, "Operating Expenses" expressly excludes (i)
principal and interest on any third party debt, (ii) capital expenditures, and (iii)
depreciation.
The term "Operating Period" refers to the period commencing upon the
Commencement Date and ending upon the Termination Date.
The term "Operating Year" shall mean a period of twelve (12) consecutive
months, the first of which shall commence upon the Commencement Date, with each
subsequent Operating Year commencing upon the day immediately following the
expiration of the preceding Operating Year.
The term "Payment Date" shall mean the date that is thirty (30) days after the
later to occur of (i) City's receipt of an Estimated NOI Notice, or (ii) if applicable, the
Auditor's final determination of the Net Operating Income for the applicable Payment
Period pursuant to Section 4.1.3 below.
The term "Payment Period" shall mean a period of three (3) consecutive
calendar months during the Operating Period, with the first Payment Period
commencing upon the Commencement Date and each successive Payment Period
commencing upon the first day immediately following the expiration of the immediately
preceding Payment Period.
The term "PSDX shall have the meaning ascribed to it in Recital B of this
Covenant Agreement.
The term "Required Annual Return" means, for each Operating Year during the
Term, an amount equal to eleven percent (11%) of the lesser of (i) the Aggregate
Preopening Expenses, or (ii) the Budgeted Preopening Expenses.
The term "RGC" means The Robert Green Company, a California corporation.
The term "Site" shall have the meaning ascribed to it in Recital A of this
Covenant Agreement.
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The term "Term" shall mean the term of this Covenant Agreement, which shall be
the period commencing on the Commencement Date and ending on the Termination
Date.
The term "Termination Date" shall mean the date that is the earlier of (i) the
fifteenth (15th) anniversary of the Commencement Date; or (ii) the date upon which this
Covenant Agreement is terminated pursuant to Section 5.2 or Section 5.3.
The term "Transient Occupancy Tax" means, for each Payment Period, or part
thereof, during the Operating Period, that portion of transient occupancy taxes remitted
by Owner or the Hotel Manager to City pursuant to Chapter 3.24 of the Municipal Code
(and any amendments or replacements to the Municipal Code) and are generated from
the use and occupancy of hotel guest rooms in the Hotel. If said Municipal Code
Section is amended or repealed during the Operating Period such that Transient
Occupancy Taxes are no longer payable to City, then, for the purposes of this
Agreement, the term "Transient Occupancy Tax" shall include any substitute tax
imposed upon occupants of hotel guest rooms and payable to the City of La Quinta.
Notwithstanding anything herein to the contrary, Transient Occupancy Tax shall
not include any interest or penalty that has been paid by Owner or the Hotel Manager
pursuant to Chapter 3.24 of the Municipal Code, and any costs City incurs during a
particular Payment Period in enforcing Chapter 3.24 of the Municipal Code or any
provision of this Covenant Agreement shall be deducted from the amount of the
Covenant Payment payable by City to Owner for such Payment Period.
2. CONDITION TO OWNER'S RIGHT TO RECEIVE COVENANT PAYMENTS.
City's obligation to make the Covenant Payments pursuant to Section 4.1 of this
Covenant Agreement for any Payment Period (or portion thereof) during the Operating
Period shall be contingent and conditional upon Owner's performance of its obligations
set forth in Section 3 of this Covenant Agreement during such Payment Period. If
Owner is in Default under this Covenant Agreement and City has provided written notice
of the commencement of the Default to Owner (a "Default Notice"), then the amount of
the Covenant Payment(s) due to Owner shall be reduced in accordance with Section
4.1.2(d) below, but City shall remain obligated to pay all Covenant Payments due to
Owner pursuant to Section 4.1.2 for those periods prior to Owner's receipt of a Default
Notice and for those periods subsequent to Owner's cure of such Default.
3. OWNER'S OBLIGATIONS.
3.1 Continuous Operation. During the Operating Period, Owner covenants
and agrees to cause the Hotel to be continuously operated on the Site, subject to
temporary and reasonable interruptions for casualty losses, repairs, labor unrest, "acts
of God", and the like (each, a "Permitted Closure").
3.2 Use Restriction. During the Operating Period, the Site shall not be put to
any use other than the operation of the Hotel and uses ancillary thereto, and such use
shall qualify as a transient occupancy use under Chapter 3.24 of the Municipal Code.
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3.3 Maintenance and Repair of Site and Hotel; Landscaping.
(a) During the Operating Period, Owner, at its sole cost and expense,
shall keep and maintain the Site and the Improvements thereon and all facilities
appurtenant thereto in good condition and repair, in accordance with the "Maintenance
Standards" (as that term is hereinafter defined).
(b) To comply with the maintenance obligations set forth in this Section
3.3, Owner shall cause the Hotel Manager to either staff or contract with and hire
licensed and qualified personnel to perform the maintenance work, including the
provision of labor, equipment, materials, support facilities, and any and all other items
necessary to comply with the requirements of this Covenant Agreement.
(c) Owner shall, or shall cause the Hotel Manager and its/their
maintenance staff, contractors or subcontractors to comply with the following standards
("Maintenance Standards"):
1. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and
shrub pruning; trimming and shaping of trees and shrubs to maintain a healthy,
natural appearance, safe road conditions, including visibility, and irrigation
coverage; replacement, as needed, of all plant materials; control of weeds in all
planters, shrubs, lawns, ground covers, or other planted areas; and staking for
support of trees.
2. Clean-up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed -
free condition; maintenance of all such areas clear of dirt, mud, trash, debris or
other matter which is unsafe or unsightly; removal of all trash, litter and other
debris from improvements and landscaping prior to mowing; clearance and
cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves
and other debris are properly disposed of by maintenance workers.
3. All maintenance work shall conform to all applicable federal
and state Occupational Safety and Health Act standards and regulations for the
performance of maintenance.
4. Any and all chemicals, unhealthful substances, and
pesticides used in and during maintenance shall be applied in strict accordance
with all governing regulations. Precautionary measures shall be employed
recognizing that all areas are open to public access.
5. The Site and Hotel shall be maintained in conformance and
in compliance with the approved Site construction and architectural plans and
design scheme, and reasonable commercial development maintenance
standards for similar projects, including but not limited to: painting and cleaning
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of all exterior surfaces and other exterior facades comprising all private
improvements and public improvements to the curbline.
6. The Site shall be maintained as required by this Section in
good condition.
(d) During the Operating Period, Owner shall not abandon any portion
of the Site or leave the Site unguarded or unprotected, and shall not otherwise
act or fail to act in such a way as to unreasonably increase the risk of any
damage to the Site or of any other impairment of City's interest set forth in this
Covenant Agreement.
3.4 Failure to Maintain Site and Hotel. In the event Owner does not maintain
the Site or the Hotel, or otherwise cause the Site or the Hotel to be maintained, in the
manner set forth herein and in accordance with the Maintenance Standards, City shall
have the right, but not the obligation, to maintain such private and/or public
improvements, or to contract for the correction of such deficiencies, in accordance with
the provisions of this Section 3.4. City shall notify Owner in writing if the condition of
said improvements do not meet with the Maintenance Standards and to specify the
deficiencies and the actions required to be taken by Owner to cure the deficiencies.
Subject to the following sentence, upon notification of any maintenance deficiency,
Owner shall have thirty (30) days within which to correct, remedy or cure the deficiency,
provided that if the deficiency cannot reasonably be cured within thirty (30) days and
Owner provides written notification to City of the time reasonably required by Owner to
correct, remedy or cure the deficiency, then Owner shall have up to but not exceeding
ninety (90) days within which to correct, remedy or cure the deficiency so long as Owner
commences to correct, remedy or cure the deficiency within said thirty (30) period and
diligently prosecutes the correction, remedy or cure to completion. If the written
notification states the problem is urgent relating to the public health and safety of City,
then Owner shall have forty-eight (48) hours to correct, remedy, or cure the problem.
In the event Owner or any person or entity acting on behalf of Owner fails to
correct, remedy, or cure after notification and after the period of correction has lapsed
[or, for deficiencies that cannot reasonably be corrected, remedied, or cured within such
period, if Owner or any person or entity acting on behalf of Owner has not commenced
correcting, remedying or curing such maintenance deficiency within such period and
diligently pursued such correction, remedy or cure to completion], then City shall have
the right to maintain such improvements. Owner agrees to reimburse City for its actual
costs reasonably incurred in connection with such maintenance performed by City
pursuant to this Section. Until so paid, City shall have a lien on the Site for the amount
of such unpaid reimbursement, which lien shall be perfected by the recordation of a
"Notice of Claim of Lien" against the Site. Upon recordation of a Notice of a Claim of
Lien against the Site, such lien shall constitute a lien on the fee estate in and to the Site
prior and superior to all other monetary liens except: (i) all taxes, bonds, assessments,
and other levies which, by law, would be superior thereto; (ii) the lien or charge of any
mortgage, deed of trust, or other security interest then of record made in good faith and
for value, it being understood that the priority of any such lien for costs incurred to
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comply with this Covenant Agreement shall date from the date of the recordation of the
Notice of Claim of Lien. Any lien in favor of City created or claimed hereunder is
expressly made subject and subordinate to the lien of any mortgage or deed of trust
made in good faith and for value, recorded as of the date of the recordation of the
Notice of Claim of Lien describing such lien as aforesaid, and no such lien shall in any
way defeat, invalidate, or impair the obligation or priority of any such mortgage or deed
of trust, unless the mortgage or beneficiary thereunder expressly subordinates his
interest, of record, to such lien. Upon foreclosure of any mortgage or deed of trust
made in good faith and for value and recorded prior to the recordation of any unsatisfied
Notice of Claim of Lien, the foreclosure -purchaser shall take title to the Site free of any
lien imposed by City that has accrued up to the time of the foreclosure sale, and upon
taking title to the Site, such foreclosure -purchaser shall only be obligated to pay costs
associated with this Covenant Agreement accruing after the foreclosure -purchaser
acquires title to the Site. Owner acknowledges and agrees City may also pursue any
and all other remedies available in law or equity as a result of a maintenance deficiency
by Owner hereunder. Owner shall be liable for any and all reasonable attorneys' fees,
and other legal costs or fees incurred in collecting said maintenance costs.
3.5 Level of Service. During the Term, Owner shall cause the Hotel to be
operated as a hotel offering luxury amenities, full service accommodations, on-site full
service restaurants and a level of personalized and professional service by Hotel
Manager or such other hotel operator approved by City pursuant to the terms of the
PSDA, and in accordance with the terms of the Hotel Management Agreement. Subject
to Owner's and the Hotel Manager's right to use their commercially reasonable business
judgment in the day-to-day operation of the Hotel, Owner shall use its best efforts to
cause the Hotel to be operated in a manner that maximizes the generation of Transient
Occupancy Tax to be remitted to City.
3.6 Compliance with Laws. During the Operating Period, Owner shall cause
the Hotel to be operated on the Site (i) in conformity with all valid and applicable federal,
state (including without limitation the California Civil Code, the California Government
Code, the California Health & Safety Code, the California Labor Code, the California
Public Resources Code, and the California Revenue & Taxation Code), and local laws,
ordinances, and regulations, provided that Owner does not waive its right to challenge
the validity or applicability thereof to Owner or the Site, and (ii) in compliance with all of
the requirements of the PSDA and any discretionary permits issued by City for the
Hotel, including, without limitation, all of the conditions of approval issued in connection
therewith, if any.
Nothing herein constitutes a representation or warranty by City that the
construction of the Hotel is not or will not be a "public work" or otherwise 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 Owner expressly waives any
right of reimbursement for any "increased costs" under California Labor Code Section
1781 or otherwise with respect to the Hotel or Owner's development thereof. Owner
shall indemnify, defend, and hold City and City's representatives, volunteers, officers,
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officials, members, employees, and agents harmless, including, but not limited to,
litigation costs, expert witness fees, and reasonable attorneys' fees, from and against
any and all claims pertaining to the payment of wages in connection with Owner's
development of the Hotel on the Site or failure to comply with federal or state labor laws,
regulations, or standards.
3.7 Compliance with Hotel Management Agreement. Owner shall comply with
all of Owner's obligations under the Hotel Management Agreement. Owner shall
promptly provide City with copies of any notices of default received by Owner from the
Hotel Manager with respect to Owner's obligations under the Hotel Management
Agreement.
3.8 Non -Discrimination. Owner shall cause the Hotel Manager to open and
operate the Hotel in a manner that does not violate applicable laws that prohibit
discrimination against any person or class of person by reason of gender, marital status,
sexual orientation, race, color, creed, mental or physical disability, religion, age,
ancestry, or national origin.
3.9 Indemnification of City. Owner shall defend, indemnify, assume all
responsibility for, 'and hold City, and City's representatives, volunteers, officers, officials,
members, employees and agents, harmless from any and all claims, demands,
damages, defense costs or liability of any kind (including reasonable attorneys' fees and
costs), that arise from Owner's operation of the Hotel on the Site or which may be
caused by any acts or omissions of the Owner under this Covenant Agreement, whether
such activities or performance thereof be by Owner or by anyone directly or indirectly
employed or contracted with by Owner and whether such damage shall accrue or be
discovered before or after termination of this Covenant Agreement.
4. OBLIGATIONS OF CITY.
4.1 Covenant Payments to Owner.
4.1.1 Determination of Required Annual Return. As soon as reasonably
possible following the Commencement Date, Owner shall deliver to City written notice
(the "Annual Return Notice") of Owner's determination of the Aggregate Preopening
Expenses and the Required Annual Return, together with a line item summary of each
category of costs included in the Aggregate Preopening Expenses and reasonable
backup to substantiate that all such costs were actually incurred. Within thirty (30) days
following City's receipt of the Annual Return Notice, City shall have the right to either
accept or reject Owner's determination of the Required Annual Return; provided,
however, if City rejects such determination, then it shall provide Owner with a
reasonably detailed explanation for its rejection (the "City's Rejection Notice"). If the
Parties are not able to reach agreement on the amount of the Required Annual Return
within thirty (30) days following Owner's receipt of City's Rejection Notice, then the
Parties shall jointly engage a certified public accountant (the "Auditor") to review
Owner's books and records and determine the amount of the Required Annual Return.
If the Parties cannot agree upon a choice of the Auditor within forty-five (45) days
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following Owner's receipt of City's Rejection Notice, then (i) each Party shall engage, at
its sole cost, an auditor, provided each such auditor must be a certified public
accountant with a nationally recognized firm and with at least ten (10) years of
experience auditing hotel developers and operators. If said auditors' determinations of
Required Annual Return differ by less than ten percent (10%), then the final
determination of Required Annual Return shall be the average of amounts determined
by said two auditors. If said auditors' determinations of Required Annual Return differ
by ten percent (10%) or more, then the Parties shall instruct said auditors to engage a
third auditor with the qualifications described above and the final determination of
Required Annual Return shall be the average of the two auditors' determinations that
are closest in value. The fees of such third auditor, if required, shall be paid by the
Parties in equal fifty percent (50%) shares. The determination of the Required Annual
Return pursuant to this Section shall be final and binding on the Parties for all purposes
under this Covenant Agreement.
4.1.2 Amount of Covenant Payments. In consideration for Owner's
undertakings pursuant to this Covenant Agreement, City shall make payments
(each, a "Covenant Payment") to Owner on each Payment Date during the
Operating Period The amount of each Covenant Payment shall be calculated as
follows:
(a) As soon as reasonably possible following the end of each
Payment Period, Owner shall deliver to City (1) a summary of profit and
loss reports for the Hotel for the Payment Period, and (2) a written notice
in the form of the sample attached hereto as Exhibit No. 2 (each, an
"Estimated NOI Notice") that includes all of the following information:
(i) The actual Net Operating Income for such Payment
Period and for all previous Payment Periods during the applicable
Operating Year, and in the Estimated NOI Notice for the fourth (4th)
Payment Period during the applicable Operating Year, the actual
Net Operating Income for such Operating Year;
(ii) In the Estimated NOI Notice for the first three (3)
Payment Periods during the applicable Operating Year, Owner's
reasonable estimate of (1) the Net Operating Income for each of the
Payment Periods remaining in such Operating Year, and (11) the
annual Net Operating Income for such Operating Year;
(iii) In the Estimated NOI Notice for the first three (3)
Payment Periods during the applicable Operating Year, the
percentage of the estimated annual Net Operating Income for the
applicable Operating Year that is represented by the actual or
estimated (as applicable) Net Operating Income for each Payment
Period, which percentages are referred to on Exhibit No. 2 as the
"Percentage of estimated annual NOI". In the Estimated NOI
Notice for the fourth (4th) Payment Period during the applicable
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Operating Year, the percentage of the actual annual Net Operating
Income for the applicable Operating Year that is represented by the
actual Net Operating Income for each Payment Period, which
percentages are referred to on Exhibit No. 2 as the "Percentage of
actual annual NOI;
(iv) the estimated or actual (as applicable) amount of
revenue that Owner needs to receive during the applicable
Operating Year that, when added to the estimated or actual (as
applicable) Net Operating Income for the applicable Operating
Year, will achieve the Required Annual Return for such Operating
Year, which amount shall be (1) the difference between the
Required Annual Return and the estimated or actual (as applicable)
Net Operating Income for such Operating Year, and (II) apportioned
and attributed to each of the Payment Periods in the amount of the
"Percentage of estimated annual NOI" or "Percentage of actual
annual NOI" (as applicable) attributed to such Payment Periods as
of the applicable Payment Date. Such amounts are referred to on
Exhibit No. 2 as the "Amount needed to achieve Required Annual
Return";
(v) the amount of Transient Occupancy Taxes actually
paid to City for the applicable Payment Period. Such amount is
referred to on Exhibit No. 2 as the "TOT paid to City"; and
(vi) the amount available for rebate by City for the
applicable Payment Period, which shall be the amount of the
Transient Occupancy Taxes actually paid to City for such Payment
Period, multiplied by (1) ninety-five percent (95%) if such Payment
Period is within the first ten (10) years of the Operating Period, or
(11) seventy-five percent (75%) if such Payment Period is within the
last five (5) years of the Operating Period, which amounts are
referred to on Exhibit No. 2 as the "Amount available for rebate".
(b) On each Payment Date, City shall pay to Owner the
difference between (1) the amount that is the lesser of (1) the aggregate of
the "Amount needed to achieve Required Annual Return" attributable to
the applicable Payment Period and all prior Payment Periods during that
Operating Year, (2) the aggregate of the "Amount available for rebate"
attributable to the applicable Payment Period and all prior Payment
Periods during that Operating Year, and (3) the "Amount needed to
achieve Required Annual Return," and (11) the aggregate of the Covenant
Payments previously paid to Owner for such Operating Year.
Notwithstanding anything to the contrary in this Covenant Agreement, if
upon the fourth Payment Date for any Operating Year, the calculation of
the difference between clause (1) and (II) in this subparagraph (b) results
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in a negative number, then on such Payment Date Owner shall pay the
amount of such difference to City.
(c) The Parties hereby acknowledge and agree that the above
calculations will rely on estimates that will be updated by Owner following
the end of each Payment Period; accordingly, any estimated amounts
included in a previously submitted Estimated NOI Notice may be adjusted
as reasonably necessary to provide for the Hotel's actual performance in
prior Payment Periods and for the Owner's reasonable expectations that
the Hotel's future performance may be negatively or positively impacted
by factors that would warrant an adjustment in the estimated Net
Operating Income for the Hotel during the applicable Operating Year.
(d) Notwithstanding anything to the contrary in this Covenant
Agreement, if Owner is in Default, then upon Owner's receipt of a Default
Notice from City, all Transient Occupancy Taxes paid to City for the period
of time commencing upon the date that Owner receives the Default Notice
from City and continuing through and until the date that Owner cures such
Default (each, a "Default Period"), shall be excluded from the amounts
included in the Estimated NOI Notice as "TOT paid to City" and "Amount
available for rebate" pursuant to Subsections 4.1.2(a)(v) and vi above,
and shall not be considered for purposes of calculating the amount of a
Payment Period. For example, if Owner pays to City Transient
Occupancy Taxes in the amount of $300,000 for a particular Payment
Period, but $50,000 of such Transient Occupancy Taxes were generated
during a Default Period, the amount included in the Estimated NOI Notice
for such Payment Period as "TOT paid to City" shall be $250,000, and the
amount included in the Estimated NOI Notice for such Payment Period as
"Amount available for rebate" (during the first ten years of the Operating
Period) shall be $237,500.
4.1.3 Determination of Net Operating Income. Within thirty (30) days
following City's receipt of an Estimated NOI Notice, City shall have the right to review
the books and records of the Hotel to determine the accuracy of the Estimated NOI
Notice and to either accept or reject Owner's determination of the estimated and/or
actual (as applicable) Net Operating Income in such Estimated NOI Notice; provided,
however, if City rejects any of such determinations, then it shall provide Owner with a
reasonably detailed explanation for its rejection (a "City's NOI Rejection Notice"). If
the Parties are not able to reach agreement on the amount of the estimated and/or
actual (as applicable) Net Operating Income in dispute within thirty (30) days following
Owner's receipt of a City's NOI Rejection Notice, then the Parties shall jointly engage a
certified public accountant (the "Auditor") to review Owner's books and records and
determine the amount of the estimated and/or actual (as applicable) Net Operating
Income in dispute. If the Parties cannot agree upon a choice of the Auditor within forty-
five (45) days following Owner's receipt of City's NOI Rejection Notice, then (i) each
Party shall engage, at its sole cost, an auditor, provided each such Auditor must be a
certified public accountant with a nationally recognized firm and with at least ten (10)
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years of experience auditing hotel operators. If said auditors' determinations of the
estimated and/or actual (as applicable) Net Operating Income in dispute differ by less
than ten percent (10%), then the final determination of estimated and/or actual (as
applicable) Net Operating Income in dispute shall be the average of the two amounts
determined by said two auditors. If said auditors' determinations of the estimated
and/or actual (as applicable) Net Operating Income in dispute differ by ten percent
(10%) or more, then the Parties shall instruct said auditors to engage a third auditor with
the qualifications described above and the final determination of the estimated and/or
actual (as applicable) Net Operating Income in dispute shall be the average of the two
auditors' determinations that are closest in value. The fees of such third auditor, if
required, shall be paid by the Parties in equal fifty percent (50%) shares.
4.2 Source of Payments. The Covenant Payments shall be payable from any
source of funds legally available to City. In this regard, it is understood and agreed that
the Transient Occupancy Tax is being used merely as a measure of the amount of the
Covenant Payments that are periodically owing by City to Owner, and that City is not
pledging any portion of the actual Transient Occupancy Tax generated from the Site to
Owner.
4.3 Books and Records. Upon the written request of either Party, the other
Party shall make available for inspection (at City Hall in the event of a review of City
records and at Owner's place of business in La Quinta in the event of a review of
Owner's records) such of its books and records as the requesting Party may reasonably
determine must be reviewed in order to determine whether the correct amount of
Covenant Payments have been made or are being made hereunder. Notwithstanding
the foregoing, City shall not be required to produce any books or records that it is
prohibited from producing by law and Owner shall not be required to produce
information that violates the statutorily prescribed privacy rights of individual customers.
4.4 No Acceleration. It is acknowledged by the Parties that any payments by
City provided for in this Covenant Agreement are in consideration for the performance
by Owner during the time period(s) for which payments are due. Therefore, City's
failure to timely make any payments or City's failure to perform any of its other
obligations hereunder shall not cause the acceleration of any anticipated future
Covenant Payments by City to Owner.
5. DEFAULTS AND REMEDIES.
5.1 Defaults. Subject to Section 8.7 of this Covenant Agreement, the
occurrence of any of the following shall constitute a "Default`
(a) the failure by either Party to perform any obligation of such Party for
the payment of money under this Covenant Agreement if such failure is not cured within
ten (10) calendar days following receipt of written notice of default; or
(b) the failure by either Party to perform any of its obligations (other
than obligations described in clause (a) of this Section 5.1) set forth in this Covenant
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Agreement, if such failure is not cured within thirty (30) days following receipt of written
notice of default, or, if such failure is of a nature that cannot reasonably be cured within
thirty (30) days and the non-performing Party provides written notification to the other
Party thereof, the failure by the non-performing Party to commence such cure within
such thirty (30) days and thereafter diligently prosecute such cure to completion; or
(c) any representation or warranty by a Party set forth in this Covenant
Agreement proves to have been incorrect in any material respect when made; or
(d) Owner closes the Hotel, except for a Permitted Closure; or
(e) Owner defaults under the Hotel Management Agreement or the
PSDA and has not cured the default within the applicable cure period (if any); or
(f) the Hotel is materially damaged or destroyed by fire or other
casualty during the Operating Period and Owner fails to commence restoration of the
improvements within a reasonable time or thereafter fails to diligently proceed to
complete such restoration in accordance with this Covenant Agreement; or
(g) Owner concludes a "Transfer" (as defined below) without the prior
written approval of City, except for a "Permitted Transfer" (as defined below); or
(h) Owner, or any constituent member of Owner (1) is the subject of an
order for relief for a bankruptcy court, or is unable or admits its inability to pay its debts
as they mature, or makes an assignment for the benefit of creditors; (2) applies for or
consents to the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or any part of its property; or (3) institutes or consents
to any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar
proceeding relating to it or any part of its property, or any similar proceeding is instituted
without the consent of Owner and continues undismissed or unstayed for ninety (90)
days; or
(i) any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of Owner,
and the appointment continues undischarged or unstayed for ninety (90) days; or any
judgment, writ, warrant of attachment or execution, or similar process is issued or levied
against the Site and is not released, vacated, or fully bonded within ninety (90) days
after its issue or levy; or
(j) Owner is enjoined or otherwise prohibited by any governmental
agency from occupying the Site at any time during the Operating Period and such
injunction or prohibition continues unstayed for ninety (90) days or more for any reason.
5.2 Citv's_ Remedies Upon Default by Owner. Upon the occurrence of any
Default by Owner, and after Owner's receipt of a Default Notice, City may, at its option -
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(a) Deduct the amount of Transient Occupancy Tax generated during
any Default Period from the "TOT paid to City" and the "Amount available for rebate" for
purposes of determining the amount of any Covenant Payment. Notwithstanding
anything in this Covenant Agreement to the contrary, any Transient Occupancy Tax
generated during a Default Period shall never be considered in determining the amount
of a Covenant Payment, regardless of whether Owner subsequently cures the Default.
(b) if the Default continues uninterrupted for a period of six (6) months
following Owner's receipt of written notice thereof, City may terminate this Covenant
Agreement, in which case City's obligation to make payments to Owner for any period
of time after the occurrence of the Default shall be finally terminated and discharged.
5.3 Owner's Remedies Upon Default by City. Upon the occurrence of any
Default by City, Owner may terminate this Covenant Agreement by written notice to City
and/or seek whatever legal or equitable remedies may be available to Owner, subject to
the provisions of this Section 5.3, Section 4.4 (No Acceleration) and Section 8.4 (Legal
Actions). Notwithstanding the foregoing, in no event shall Owner be entitled to recover
damages of any kind from City, except for damages up to, but not exceeding, the
amount that Owner would have received under this Covenant Agreement but for City's
default of its covenants under this Covenant Agreement, but excluding damages for
economic loss, lost profits, or any other economic or consequential damages of any
kind.
5.4 Cumulative Remedies; No Waiver. Except as expressly provided herein,
the nondefaulting Party's rights and remedies hereunder are cumulative and in addition
to all rights and remedies provided by law from time to time and the exercise by the
nondefaulting Party of any right or remedy shall not prejudice such Party in the exercise
of any other right or remedy. None of the provisions of this Covenant Agreement shall
be considered waived by either Party except when such waiver is delivered in writing.
No waiver of any Default shall be implied from any omission by City to take action on
account of such Default if such Default persists or is repeated. No waiver of any Default
shall affect any Default other than the Default expressly waived, and any such waiver
shall be operative only for the time and to the extent stated. No waiver of any provision
of this Covenant Agreement shall be construed as a waiver of any subsequent breach
of the same provision. A Party's consent to or approval of any act by the other Party
requiring further consent or approval shall not be deemed to waive or render
unnecessary the consenting Party's consent to or approval of any subsequent act. A
Party's acceptance of the late performance of any obligation shall not constitute a
waiver by such Party of the right to require prompt performance of all further obligations.
A Party's acceptance of any performance following the sending or filing of any notice of
Default shall not constitute a waiver of that Party's right to proceed with the exercise of
its remedies for any unfulfilled obligations. A Party's acceptance of any partial
performance shall not constitute a waiver by that Party of any rights relating to the
unfulfilled portion of the applicable obligation.
5.5 Limitations on City's Liability. Owner acknowledges and agrees that:
(i) this Covenant Agreement shall not be deemed or construed as creating a
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partnership, joint venture, or similar association between Owner and City, the
relationship between Owner and City pursuant to this Covenant Agreement is and shall
remain solely that of contracting Parties, that the operation of the Hotel is a private
undertaking, and City neither undertakes nor assumes any responsibility pursuant to
this Covenant Agreement with respect to the operation of the Hotel on the Site other
than as expressly provided for herein, and Owner shall rely entirely on its own judgment
with respect to such matters; provided, that nothing herein is intended to release City
from whatever obligations it may have pursuant to applicable laws independent of this
Covenant Agreement; (ii) by virtue of this Covenant Agreement, City shall not be directly
or indirectly liable or responsible for any loss or injury of any kind to any person or
property resulting from any occupancy or use of the Site, whether arising from: (a) any
defect in any building, grading, landscaping, or other onsite or offsite improvement;
(b) any act or omission of Owner or any of Owner's agents, employees, independent
contractors, licensees, lessees, or invitees; or (c) any accident on the Site or any fire or
other casualty or hazard thereon, and (iii) by accepting or approving anything required
to be performed or given to City under this Covenant Agreement, including any
certificate, NOI Notice, or insurance policy, City shall not be deemed to have warranted
or represented the sufficiency or legal, effect of the same, and no such acceptance or
approval shall constitute a warranty or representation by City to anyone.
6. ASSIGNMENT AND TRANSFER.
6.1 Transfers of Interest in Site or Covenant Agreement. The qualifications
and identity of Owner as the developer and operator of high quality commercial resort
developments are of particular concern to City. Furthermore, the Parties acknowledge
that City has negotiated the terms of this Covenant Agreement in contemplation of the
development and operation of the Hotel on the Site and the property tax and Transient
Occupancy Tax revenues to be generated by the operation of the Hotel on the Site.
6.1.1 Transfers of Interest in Site or Covenant Agreement Prior to City's
Issuance of a Release of Construction Covenants. Except as provided in this Section
6.1.1, until the date City issues a Release of Construction Covenants for the Hotel (the
"Fee Transfer Release Date"), (1) no voluntary successor in interest of Owner shall
acquire any rights or powers under this Covenant Agreement with respect to the Hotel;
(2) Owner shall not make any total or partial sale, transfer, conveyance, assignment, or
lease of the whole or any part of the Hotel or Site; and (3) no changes shall occur with
respect to the ownership and/or control of Owner, including, without limitation, stock
transfers, sales of issuances, or transfers, sales or issuances of membership or
ownership interests, or statutory conversions (any of the above, a "Transfer"). Prior to
the Fee Transfer Release Date, City may approve or disapprove a proposed Transfer in
its sole and absolute discretion; provided, however, City agrees to reasonably consider
a Transfer to a transferee that has substantial experience in developing and operating
developments comparable in all material respects to the Hotel, and the financial
capability to develop and operate the Hotel, as determined pursuant to the factors set
forth in Section 311.1 of the PSDA
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Notwithstanding the foregoing, City approval of a Transfer prior to the Fee
Transfer Release Date shall not be required in connection with any of the following:
(a) The conveyance or dedication of any portion of the Site to an
appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Hotel.
(b) Any assignment for financing purposes (subject to such
financing being permitted pursuant to Section 311 of the PSDA), including the grant of a
deed of trust to secure the funds necessary for land acquisition, construction, and
permanent financing of the Hotel.
(c) The Transfer to a lender who has provided financing to
Owner (subject to such financing being permitted pursuant to Section 311 of the PSDA)
as a result of foreclosure by such lender of the deed of trust securing funds necessary
for land acquisition, construction, and permanent financing of the Hotel.
(d) The Transfer by Owner to an entity (i) whose managing
member, manager, or managing general partner is (A) Owner, or (B) an entity which is
at least fifty-one percent (51%) owned and controlled by Owner, Meriwether, or RGC,
and (ii) which engages as the project/development manager for the Hotel an entity
which is at least fifty-one percent (51 %) owned and controlled by Owner, Meriwether or
RGC.
6.1.2 Transfers of Operational Obligations. Notwithstanding anything in
Section 6.1.1 to the contrary, until the expiration of the Operating Period, neither Owner
nor the Hotel Manager (or any permitted successor in interest) shall make any Transfer
of the operational and/or managerial control, including, but not limited to, financial and
managerial decision-making, of the Hotel; and (ii) no changes shall occur with respect to
the ownership and/or control of Owner, RGC, or of Meriwether, including, without
limitation, stock transfers, sales of issuances, or transfers, sales or issuances of
membership or ownership interests, or statutory conversions (either of the above, a
"Management Transfer") without the prior written approval of City, which approval, with
respect to a Management Transfer described in clause (i) above, shall be made in City's
sole and absolute discretion, and which approval, with respect to a Management
Transfer described in clause (ii) above, shall be made in City's reasonable discretion;
provided, however, that transfers of the stock, ownership and/or membership interests
of Owner, RGC or Meriwether may be made so long as such transfers do not result in
the transfer, on a cumulative basis, of more than forty-nine percent (49%) of the
outstanding and voting stock, ownership, and/or membership interests of Owner, RGC,
or Meriwether. Notwithstanding the foregoing, City approval shall not be required for a
Management Transfer of the Hotel to any of the entities approved by City to act as
Luxury Hotel Operator, as set forth in Section 100 of the PSDA (any of the foregoing, an
"Approved Luxury Hotel Operator"). Except as provided below in this Section 6.1.2, any
proposed Management Transfer to an entity that is not designated as an Approved
Luxury Hotel Operator shall be approved by the City Council of City, in its sole and
absolute discretion. In connection with any proposed Management Transfer of the
Luxury Hotel to any entity that is not designated as an Approved Luxury Hotel Operator,
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Owner or Owner's successor in interest shall demonstrate that the proposed operator
has experience and reputation for operating luxury hotels that is equivalent to the
experience and reputation of an Approved Luxury Hotel Operator (an "Experience
Equivalent Luxury Hotel Operator"). Notwithstanding anything in this Section 6.1.2 to
the contrary, at any time after the Luxury Hotel has been opened for business and has
commenced operations by an Approved Luxury Hotel Operator, City approval shall not
be unreasonably withheld for a Management Transfer of the Luxury Hotel to an
Experience Equivalent Luxury Hotel Operator. To the extent that the operating
character or quality of any Approved Luxury Hotel Operator substantially changes
between the date of this Covenant Agreement and the date of the proposed
Management Transfer, Owner or Owner's successor in interest shall demonstrate that
the Approved Luxury Hotel Operator satisfies the requirements to qualify as an
Experience Luxury Hotel Operator. Owner or Owner's successor in interest shall
provide such information as may be reasonably requested by City to enable City to
review and approve (or disapprove) any proposed operator, and shall reimburse City for
City's costs incurred in considering any such request.
6.1.3 Assignment and Assumption of Obligations. Any Transfer
(including Transfers not requiring prior City approval) by Owner of any interest in the
Site or of any interest in this Covenant Agreement and all Management Transfers shall
require the execution of an assignment and assumption of obligations in a form
approved by the City Attorney (an "Assignment and Assumption Agreement").
Transfers of Owner's rights and/or obligations under this Covenant Agreement made
without an executed Assignment and Assumption Agreement are null and void. The
requirement for the provision to City of an executed Assignment and Assumption
Agreement shall apply regardless of whether City approval is required for the Transfer.
Owner agrees that (a) at least thirty (30) days prior to any Transfer it shall give written
notice to City of such proposed Transfer; and (b) within five (5) days after any Transfer it
shall provide City with a copy of the fully executed Assignment and Assumption
Agreement evidencing that the assignee has assumed in writing all applicable
obligations under this Agreement. A Party proposing to assign its obligations under this
Agreement (i) shall remain liable for the obligations until and unless City has received a
fully executed Assignment and Assumption Agreement, and (ii) shall remain liable for
any default hereunder that occurred prior to the effective date of the assignment.
Owner or Owner's successor in interest shall reimburse City for any costs (other than
staff time) City incurs in reviewing any Assignment and Assumption Agreement required
hereunder.
6.2 Binding Effect. This Covenant Agreement shall run with the land and shall
be binding on, and inure to the benefit of the Parties hereto and their respective
successors and assigns, as limited by this Section 6. In the event of any assignment
that is consented to in writing by City, the references in this Covenant Agreement to
"Owner" shall be deemed to refer to the assignee.
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7. MORTGAGEE PROTECTIONS.
7.1 No Termination. No action by Owner or City to cancel or surrender this
Covenant Agreement or to materially modify the terms of this Covenant Agreement shall
be binding upon a Mortgagee without its prior written consent, which such Mortgagee
shall not unreasonably withhold, condition or delay, unless (solely with respect to
cancelling or surrendering this Covenant Agreement) such Mortgagee shall have failed
to cure a default within the time frames set forth in this Article 7.
7.2 Notices. If City shall give any notice of default to Owner hereunder, City
shall simultaneously give a copy of such notice of default to any Mortgagee that has
filed or recorded a request for such notice, at the address theretofore designated by it.
No notice of default given by City to Owner shall be binding upon or affect said
Mortgagee unless a copy of said notice of default shall be given to Mortgagee pursuant
to this Article 7. In the case of an assignment of such Mortgage or change in address of
such Mortgagee, said assignee or Mortgagee, by written notice to City, may change the
address to which such copies of notices of default are to be sent. City shall not be
bound to recognize any assignment of such Mortgage unless and until City shall be
given written notice thereof, a copy of the executed assignment, and the name and
address of the assignee. Thereafter, such assignee shall be deemed to be the
Mortgagee hereunder with respect to the Mortgage being assigned. If such Mortgage is
held by more than one person, corporation or other entity, no provision of this Covenant
Agreement requiring City to give notices of default or copies thereof to said Mortgagee
shall be binding upon City unless and until all of said holders shall designate in writing
one of their number to receive all such notices of default and copies thereof and shall
have given to City an original executed counterpart of such designation.
7.3 Performance of Covenants. Mortgagee shall have the right (but not the
obligation) to perform any term, covenant or condition and to remedy any default by
Owner hereunder within the time periods specified herein, and City shall accept such
performance with the same force and effect as if furnished by Owner; provided,
however, that said Mortgagee shall not thereby or hereby be subrogated to the rights of
City. Notwithstanding the foregoing, nothing herein shall be deemed to permit or
authorize such Mortgagee (or its designee) to undertake or continue the construction or
completion of the Improvements without first having expressly assumed Owner's
obligations hereunder, under the PSDA, and under any other agreements between City
and Owner that relate to the Hotel, to City or its designee by written agreement
satisfactory to City.
7.4 Default by Owner. In the event of a default by Owner, City agrees not to
terminate this Covenant Agreement (1) unless and until Owner's and Mortgagee's
notice and cure periods have expired, and (2) as long as:
7.4.1 In the case of a default which cannot practicably be cured by a
Mortgagee without taking possession of the Improvements, said Mortgagee shall
proceed diligently to obtain possession of the Improvements as Mortgagee (including
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possession by receiver) and, upon obtaining such possession, shall proceed diligently
to cure such default; or
7.4.2 In the case of a default which is not susceptible to being cured by a
Mortgagee, said Mortgagee shall institute foreclosure proceedings and diligently
prosecute the same to completion (unless in the meantime it shall acquire Owner's
right, title and interest hereunder, either in its own name or through a nominee, by
assignment in lieu of foreclosure) and upon such completion of acquisition or
foreclosure such default shall be deemed to have been cured.
7.5 No Obligation to Cure. Mortgagee shall not have any obligation or duty
pursuant to the terms set forth in this Covenant Agreement to perform the obligations of
Owner or other affirmative covenants of Owner hereunder, or to guarantee such
performance and nothing herein contained shall require any Mortgagee to cure any
default of Owner referred to above. However, in the event that Mortgagee elects not to
cure any default susceptible of being cured, City's obligation to further fund any
Covenant Payments shall be suspended until such time as the default is cured (or such
earlier time that Mortgagee cures the default).
7.6 Separate Agreement. City may, upon request, execute, acknowledge and
deliver to each Mortgagee, an agreement prepared at the sole cost and expense of
Owner, in form satisfactory to each Mortgagee, between City, Owner and the
Mortgagees, agreeing to all of the provisions hereof.
7.7 Form of Notice. Any Mortgagee shall be entitled to receive the notices
required to be delivered to it hereunder provided that such Mortgagee shall have
delivered to City a notice substantially in the following form:
"The undersigned, whose address is , does hereby certify that
it is the Mortgagee (as such term is defined in that certain Agreement to
Share Transient Occupancy Tax Revenue ("TOT Agreement") dated as of
2014 between [XXXX] and the City of La Quinta, of the
parcel of land described on Exhibit _A attached hereto. In the event that
any notice shall be given of a default of Owner under the TOT Agreement,
a copy thereof shall be delivered to the undersigned who shall have the
rights of a Mortgagee to cure the same, as specified in the TOT
Agreement. Failure to deliver a copy of such notice shall in no way affect
the validity of the notice to Owner, but no such notice shall be effective as
it relates to the rights of the undersigned under the TOT Agreement with
respect to the Mortgage, including the commencement of any cure periods
applicable to the undersigned, until actually received by the undersigned."
All notices to be provided by Mortgagee to City shall be provided in
accordance with Section 8.8 below.
7.8 Further Assurances. City and Owner agree to cooperate in including in
this Covenant Agreement, by suitable amendment, any provision which may be
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reasonably requested by any Mortgagee or any proposed Mortgagee for the purpose of
(i) more fully or particularly implementing the mortgagee protection provisions contained
herein, (ii) adding mortgagee protections consistent with those contained herein and
which are otherwise commercially reasonable, (iii) allowing such Mortgagee reasonable
means to protect or preserve the security interest of such mortgagee in the collateral,
including its lien on the Site and the collateral assignment of this Covenant Agreement,
and/or (iv) clarifying terms or restructuring elements of the transactions contemplated
hereby; provided, however, in no event shall City be obligated to materially and
adversely modify any of Owner's obligations or City's rights under this Covenant
Agreement in any manner not already contemplated in this Article 7.
8. GENERAL PROVISIONS.
8.1 Integration and Amendment. This Covenant Agreement, the PSDA, and
the Agreement constitute the entire agreement by and between the Parties pertaining to
the subject matter hereof, and supersede all prior agreements and understandings of
the Parties with respect thereto. This Covenant Agreement may not be modified,
amended, supplemented, or otherwise changed except by a writing executed by both
Parties.
8.2 Captions. Section headings used in this Covenant Agreement are for
convenience of reference only and shall not affect the construction of any provisions of
this Covenant Agreement.
8.3 Counterparts. This Covenant Agreement may be executed in two or more
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which, when taken together, shall constitute one and the same
instrument.
8.4 Legal Actions. This Covenant Agreement shall be governed by and
construed in accordance with the internal laws of the State of California without regard
to conflict of law principles.
8.5 Attorney's Fees. If either Party to this Covenant Agreement is required to
initiate or defend, or is made a party to, any action or proceeding in any way connected
with this Covenant Agreement, the Party prevailing in the final judgment in such action
or proceeding, in addition to any other relief which may be granted, shall be entitled to
reasonable attorney's fees. Attorney's fees shall include reasonable costs for
investigating such action, conducting discovery, retaining expert witnesses, and all other
necessary costs the court allows which are incurred in such litigation.
8.6 Effect of Violation of the Terms and Provisions of this Covenant
Agreement. The covenants established in this Covenant Agreement shall, without
regard to technical classification and designation, be binding for the benefit and in favor
of City, its successors and assigns, as to those covenants which are for its benefit. The
covenants contained in this Covenant Agreement shall remain in effect for the periods
of time specified therein. City is deemed the beneficiary of the terms and provisions of
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this Covenant Agreement and of the covenants running with the land, for and in its own
rights and for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor and for whose benefit this Covenant
Agreement and the covenants running with the land have been provided. This
Covenant Agreement and the covenants shall run in favor of City, without regard to
whether City has been, remains, or is an owner of any land or interest in the Site. City
shall have the right, if the Covenant Agreement or covenants are breached, to exercise
all rights and remedies, and to maintain any actions or suits at law or in equity or other
proper proceedings to enforce the curing of such breaches to which it or any other
beneficiaries of this Covenant Agreement and covenants may be entitled.
8.7 Force Majeure. Notwithstanding any other provision set forth in this
Covenant Agreement to the contrary, in no event shall a Party be deemed to be in
Default of its obligations set forth herein where delays or failures to perform are caused
by circumstances without the fault and beyond the reasonable control of such Party,
which circumstances shall include, without limitation, fire/casualty losses; strikes;
litigation; unusually severe weather; inability to secure necessary labor, materials, or
tools; delays of any contractor, subcontractor, or supplier; unjustified acts or failure to
act by City or other governmental agency; litigation by third parties challenging the
validity or enforceability of the Agreement or this Covenant Agreement; and acts of God
(collectively, "force majeure"). Adverse market conditions or Owner's inability to obtain
financing or approvals to operate the Hotel shall not constitute events of force majeure.
In the event of a force majeure, the Party so delayed shall notify the other Party of the
circumstances and cause of the delay within a reasonable time period after
commencement of the delay, it shall keep the other Party informed at reasonable
intervals upon request regarding the status of its efforts to overcome said delay, and it
shall exercise commercially reasonable diligence to perform as soon as practicable
thereafter.
8.8 Notices. Notices to be given by City or Owner hereunder may be
delivered personally or may be delivered by certified or registered mail, postage
prepaid, or by reputable overnight delivery service providing a delivery confirmation
receipt with time and date of delivery, with mailed notices to be addressed to the
appropriate address(es) hereinafter set forth or to such other address(es) that a Party
may hereafter designate by written notice. If served by overnight delivery service or
certified mail, service will be considered completed and binding on the Party served on
the date set forth in the confirmation or certification receipt. If delivered personally,
service will be considered completed and binding on the Party served on the date of
such personal delivery.
If notice is to City: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attention: Frank J. Spevacek, City Manager
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with a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attention: William H. Ihrke, City Attorney
If notice is to Owner: SilverRock Development Company, LLC
c/o The Robert Green Company
3551 Fortuna Ranch Road
Encinitas, CA 92024
Attention: Robert S. Green, Jr.
SilverRock Development Company, LLC
c/o Meriwether Companies
11999 San Vicente Blvd., Suite 220
Los Angeles, CA 90049
Attention: Graham Culp
with a copy to: Glaser Weil LLP
10250 Constellation Blvd., 19th Floor
Los Angeles, CA 90067
Attention: Saul Breskal
8.9 City Approvals and Actions. City shall maintain authority of this Covenant
Agreement and the authority to implement this Covenant Agreement through the City
Manager. The City Manager shall have the authority to make approvals, issue
interpretations, waive provisions, negotiate and enter into amendments to this Covenant
Agreement and/or negotiate and enter into implementing agreements or documents on
behalf of City so long as such actions do not materially or substantially change the
business terms of this Covenant Agreement, or materially or substantially add to the
costs incurred or to be incurred by City as specified herein. Such approvals,
interpretations, waivers, amendments, and/or implementing agreements or documents
may include extensions of time to perform. All other material and/or substantial
interpretations, waivers, or amendments shall require the consideration, action and
written consent of the City Council.
8.10 Further Acts. Each Party agrees to take such further actions and to
execute such other documents as may be reasonable and necessary in the
performance of its obligations hereunder; reserving to City, however, its lawful
discretionary and police power authority. Without limiting the generality of the
foregoing, upon the expiration or termination of the Operating Period, City will execute
and deliver such instruments as may be prepared by Owner at Owner's expense to
release the cloud upon title to the Site created by this Covenant Agreement; provided,
however, that any such document shall be in a form reasonably acceptable to the City
Attorney of City.
8.11 Third Party Beneficiaries. With the exception of the specific provisions set
forth in this Covenant Agreement for the benefit of Mortgagees, there are no intended
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third party beneficiaries under this Covenant Agreement and no such other third parties
shall have any rights or obligations hereunder.
8.12 Estoppel Certificates. Either Party to this Covenant Agreement shall,
promptly (but under all circumstances within ten (10) days) following the request of the
other Party, execute, acknowledge and deliver to or for the benefit of such other Party, a
certificate certifying: (i) that this Covenant Agreement is unmodified and in full force and
effect (or, if there have been modifications, that this Covenant Agreement is in full force
and effect, as modified, and stating the modifications), (ii) whether there are then
existing any defaults on the part of the party requesting the certificate known to the
Party delivering the certificate in the performance or observance of any agreement,
covenant or condition hereof to be performed or observed and whether any notice has
been given of any default which has not been cured (and, if so, specifying the same),
and (iii) such other matters as may be reasonably requested. In the event City is
requested to provide more than one such certificate in any twelve (12) month period,
Owner shall reimburse City for all reasonable fees and costs City incurs from attorneys
and consultants in the preparation of the same.
8.13 Inspection of Books and Records. Not more than once per calendar
quarter, City has the right at all reasonable times during normal business hours and
following at least ten (10) Business Days prior written notice to Owner to inspect, on a
confidential basis, the books, records and all other documentation of Owner pertaining
to its obligations under this Covenant Agreement. Not more than once per year, Owner
also has the right at all reasonable times during normal business hours and upon ten
(10) Business Days prior written notice to inspect the books, records and all other
documentation of City pertaining to its obligations under this Covenant Agreement.
8.14 Severability. If any term, provision, covenant or condition of this Covenant
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
8.15 Standard of Approval. Any consents or approvals required or permitted
under this Covenant Agreement shall not be unreasonably delayed, conditioned or
withheld, except where it is specifically provided that a sole discretion standard applies.
8.16 Time of the Essence. Time is of the essence for each provision of this
Covenant Agreement of which time is an element.
[End — Signature page follows]
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IN WITNESS WHEREOF, the Parties have executed this Covenant Agreement
to be effective as of the Covenant Agreement Effective Date.
"City"
CITY OF LA QUINTA,
a California municipal corporation and charter
city
Date: .2014 Bv:
ATTEST:
By:
Susan Maysels, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By:
William H. Ihrke, City Attorney
Frank J. Spevacek, City Manager
"Participant"
SILVERROCK DEVELOPMENT COMPANY,
LLC, a Delaware limited liability company
By: MC SilverRock LLC,
a Colorado limited liability company
Its: Co -Manager
Date: 2014 By.
Name: Graham Culp
Its: Manager
By: RGC La Quinta, LLC,
a Delaware limited liability company
Its: Co -Manager
By: The Robert Green Company,
a California corporation
Its: Manager
Date: . 2014
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By:
Name: Robert S. Green, Jr.
Its: President and Chief Executive
Officer
State of California
County of Riverside
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 California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of Riverside
On before me,
(Seal)
(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 California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
882/015610-0065
7762589.1 a11/19/14 -27-
(Seal)
State of California
County of Riverside
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 California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signatu
882/015610-0065
7762589 1 a11/19/14 '28'
(Seal)
EXHIBIT NO. 1
LEGAL DESCRIPTION OF SITE
[To be inserted]
882/015610-0065
7762589.1 a11/19/14 EXHIBIT NO. 1
EXHIBIT NO. 2
SAMPLE FORM OF ESTIMATED NOI NOTICE
E lbmal•tl N01 taOUot
Bair.
Reculrea Anrsral Relunar
Eetllraled Annual NCR YM Paymeml PeAM Adluat ar6alanales
1, 15=8
$ 9,350,000
1lt i+t meek Pit** NGl "41908
Pa' merit
perbd
2M 1 3rd
114217
s 1351 ox
30
IrlwAl
A,'Lia raWffla*e ND is 13W.000
1 3sur
I Mull Is +0
3 a65^1330
2023°6
33534 2.8.97!:
Perce^1a2e offesmaledang alml 17 U%
10000%
A.'M7,.nllee M No aM*n Rt�andAclnWalMUM s 121,3 7
s 14ii5i8
$ F..S.ti5a2 $ 2M 312
$ T10J100
Tor pace 00 l atf ea
$ 285 910
$
19013001
a.*msnlIV31Wle Mr* ale S54offT0TszWloCef.
% 1,30F.143
Amo:nl needed to acMie a Pimp lied Amnwal Mlam
lntneeded lo3Mleve Rka,lied Arm u3iMUrn
AMO.Mlmeedeo In aM*Ve FtP3j*dAM alIRelilml •IPapmle 1Ferbd 1 $ 121,3v
$ 175!x10
$ 242 775 5
lCoYL-1 xPayment VPafinenlPelb=1-3 IsWeerotatou*
Asn,mtaua9Cmle1, $ 286000
$ 3050,0110
$
1 sl P31 mlesl Pe rbd Couimart Pay mewl
AIMOV11meeded03anlleveRe74FtedAmnual9;paurm $ 700,000
$ 475,00C1
113. 0
2mo Pa'lrrt:-t Perm Ciouenart Payment
u ey nl P -rrx e-0 t tawolvie a70ue 1 7
S 1213937
285,010
e11'll rpd'ma-1 due 3b •tea ."ne'.p FWIW
2 r!d. Pay mlrot Pselad NM Ddes
a I or e673ma1tC No
181
I
2M 1 3rd
11arerAIMIDed 10,^,l.
s 1351 ox
s
t zu, 011 s 1.
rIgge areF6lM3Wd3mneal N011
23$1"c
S 1641293
1q-Qv%j Z5.4a%
MlmeedrJBoayn1eae4b_.led Amnualfaliam
$ 7225,190
s
584.952 $ 74,603 $
Pat to cel
s 3mma
$ 190,000
770-1
nlavahaok
$ 285 910
$
19013001
!@Ale a1llOwrb needed lam eiiigil1MArn%a H%UTn,QP®"@fMPar1o:s 1&27,
% 1,30F.143
Amo:nl needed to acMie a Pimp lied Amnwal Mlam
lntneeded lo3Mleve Rka,lied Arm u3iMUrn
Ega,g amowrNavall 06 ibrrelnale g1PVafinenlPaMds Mt,
$ 175!x10
$ 242 775 5
lCoYL-1 xPayment VPafinenlPelb=1-3 IsWeerotatou*
F1F�1t4de010 i3'11iV8 Ra:#�Is.3 A97 JiE f+ll:p"i
$ 3050,0110
$
1 sl P31 mlesl Pe rbd Couimart Pay mewl
�Uffirla!tl Pa3mlent AarPafinenlPe rods l&2 KII�/BerORadaUe
$ 475,00C1
113. 0
2mo Pa'lrrt:-t Perm Ciouenart Payment
IalPay mengPeMdcovena7lPaymerm
S 1213937
285,010
e11'll rpd'ma-1 due 3b •tea ."ne'.p FWIW
due 2mo Pvm.entPeflod
s 353:51$
Aggetaile amount neededlo jcMKv,e Regtlred Am wl F9 Mr tFajmleril Per#ods 14N
a I or e673ma1tC No
s 1.500007
3 1 t0aom
viae CResglmaled amnhal N7l
Pew
ISZ%
14631i
.n9 nee d to a Wleue Rea. aed Amnualftlurm
$
210.366
S 1641293
Pat 00 oil
$
300,000
s 200000
ant 1J31'dble trleb3le t95%artTOTpabgo'Glly
$
285,000
$ 190,000
egale amowrl needed toacMime ffel jlred A nniml RMji in tPapnerm Perbo61-3;
3
799,.190
1U7%
egilt amount auaelablaibrrelale,OPwfmlelPerbM1-3
$
1,015,000
Amo:nl needed to acMie a Pimp lied Amnwal Mlam
lntneeded lo3Mleve Rka,lied Arm u3iMUrn
$
1,15.1.000
$ 242 775 5
lCoYL-1 xPayment VPafinenlPelb=1-3 IsWeerotatou*
$
799,390
$
1 sl P31 mlesl Pe rbd Couimart Pay mewl
$
121,387
113. 0
2mo Pa'lrrt:-t Perm Ciouenart Payment
s
353 113
285,010
e11'll rpd'ma-1 due 3b •tea ."ne'.p FWIW
3
324.y30
an I annual
9641-.25t I $ 3,050f100
3559% 33 A@%100.005
,43 132 3 3511510 $ 1 ,1511,0-91
1111 Piq malrtRrim 16f}l r,*We Ik tlrwa)
payres
Pew
1:1 S3 ren
2V auarW
NO - 3rrler
411 7.sa"r
naaM
s 1210.001
3 310MC73 s
2,9 00•
s 35s0.0{P1
Aaualamll s 15'0030
Pent &W Off amalarin6aiml
1734%
1U7%
34x6414
34 11%
10000%
Amo:nl needed to acMie a Pimp lied Amnwal Mlam
$
121 ,387
$ 97.110
$ 242 775 5
233.773
3 710,000
TOT paid to CMf
$
300,000
$ 000,000
$ 600.000 3
113. 0
A=r nava)ladleloriebalepS%offTOTpaldloC"gy
$
285,010
3 190,000
3 570,000 5
316 rZ5
Aggetaile amount neededlo jcMKv,e Regtlred Am wl F9 Mr tFajmleril Per#ods 14N
$
700.000
Alpega'Mamount aual lelorrebalelpaflmeilPerb%14)
s
1,561,325
A-Tootneeded10ad11N'eReWLvdAmualflerim
$
700.000
TOW Covena"PaMrlwrPayment PeAodel-4i6,kffiserotabowe
3
703,010
LesslslPayment PerbdcaulmaraPafmlerl
$
121,367
tesa 2113 Payment PeiW Cauerarl Pafinenl
3
353,613
Leas 30 Pafinenl Petod O0velant Pa -Me.
s
321,390
Gov 7a/6Paeve'6d 4HPar91P-•-1Pe-ma ate
5
MM -23
actual a+navnts b at n1w 11
estllaindamo Lnisioberiled vi
all over vaUes seltcabi ble
882/015610-0065
7762589.1 all/19/14 EXHIBIT NO. 2