2023 Blackpoint PSA - Post Closing Agrmt - Dune Palms Prop Acq HA 2023-10-1749 EXECUTEDPOST CLOSING AGREEMENT
This Post Closing Agreement ("Agreement") is made and entered into effective as of
November 2, 2023 ("Effective Date"), by and between LA QUINTA HOUSING AUTHORITY, a
public body, corporate and politic ("Buyer"), and BP DUNE PALMS LP, a California limited
partnership ("Seller").
Recitals
A. Concurrently with the Effective Date of this Agreement, pursuant to that certain
Agreement for Purchase and Sale and Escrow Instructions dated January 18, 2023, as amended by
that certain First Amendment thereto dated October 23, 2023 (the "PSA") entered into by and
between Buyer and Seller, Buyer has purchased from Seller certain unimproved real property
located on Dune Palms Road, to the northeast of its intersection with Highway 111, in La Quinta,
California, identified in the PSA as the "Northern Property" and more particularly described in
Exhibit A attached hereto (the "Property" or "Northern Property"). Seller retains ownership of
that certain adjacent unimproved real property identified in the PSA as the "Southern Property".
The Northern Property (as Parcel 1) and Southern Property (as Parcels 2 and 3) are depicted on
the map attached hereto as Exhibit B (the "Site Map").
B. Pursuant to the PSA, Seller is responsible for certain improvements to be made in
connection with the development of the Northern Property and/or the Southern Property, including
construction of an access driveway referred to therein as the "main drive" and the Utility
Improvements (as defined in the PSA), including construction of the Stormwater Outflow Line (as
defined in the PSA), which improvements will be completed on the Property after Close of Escrow
of the sale of the Northern Property from Seller to Buyer.
C. The work described in the foregoing Recital B forms a part of the "Improvements"
to be constructed by Seller as the "Subdivider" under that certain Subdivision Improvement
Agreement dated October 18, 2023 by and between DWCG1, LLC and the City of La Quinta, a
municipal corporation of the State of California (the "City"), as modified by that certain
Assignment and Assumption Agreement and Amendment to Subdivision Improvement Agreement
of even date herewith by and among the City, DWCG1, LLC as assignor and Seller as assignee
(collectively, the "SIA"), and will benefit both the Northern Property and the Southern Property.
D. The parties desire to enter into this Agreement to memorialize certain agreements
concerning the Seller's entry onto and use of the Northern Property after Close of Escrow under
the PSA.
NOW, THEREFORE, in consideration of the foregoing, the premises herein set forth, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned parties hereby agree as set forth below.
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Agreement
1. Recitals and Definitions. Buyer and Seller acknowledge and agree that the recitals
set forth above are true and correct statements of fact. Capitalized terms used and not otherwise
defined herein shall have the meaning set forth in the PSA.
2. License for Use of Property. Buyer hereby grants to Seller, for a term commencing
on the Closing Date and expiring upon completion of the Improvements, and subject to the terms
and conditions set forth in this Agreement and in the SIA, a revocable limited license (the
"License") to enter upon, occupy, and use the Property for the purpose of construction of the
Improvements. Seller hereby accepts the License and adopts and agrees to all conditions and
covenants of Seller set forth in this Agreement with respect thereto. For purposes of this
Agreement, the "completion of the Improvements" shall be evidenced by the recording of a Notice
of Completion thereof in the Official Records of Riverside County, after official acceptance of the
Improvements by the City, in accordance with California Civil Code section 8180(b) (or successor
section) in a form that complies with Title 2 (commencing with Section 8160) of Part 6 of
Division 4 of the California Civil Code. Termination of the License shall not affect any easement
rights that may be separately granted to Seller for the use of the Improvements or any other utilities
and/or roadways located on the Northern Property.
3. Construction Work. Seller hereby agrees to cause all construction work ("Work")
undertaken by or on behalf of Seller to complete the Improvements as set forth in the PSA and/or
the SIA to be performed and completed in material compliance with (a) the provisions of the SIA,
including the Plans approved thereunder, and within the times required pursuant thereto, and
(b) the necessary governmental permits and approvals required for said Work (the "Approvals").
Seller shall obtain and keep in effect at all times during the term of this Agreement (or cause its
general contractor to do so) all Approvals as may be required by law for the performance of the
Work, including a City of La Quinta business license. Seller shall not suffer or permit any stop
work orders or mechanics' liens to be made or filed against the Property by reason of labor forces,
services or materials supplied (or claimed to have been supplied) to Seller, and Seller agrees to
indemnify and hold harmless Buyer and the Property and any improvements now or hereafter
thereon against any such stop work orders or liens. If any such stop work order or lien is at any
time filed against any part of the Property, Seller shall, within thirty (30) days after notice to Buyer
of the filing thereof, cause the same to be discharged of record; provided, however, that Seller shall
have the right to contest the amount or validity, in whole or in part, of any such lien by appropriate
proceedings. Seller shall prosecute the contest of such proceedings with due diligence and at no
cost or expense to Buyer.
4. Insurance. Commencing on the Closing Date and until termination of this
Agreement, Seller shall maintain, or cause its general contractor to maintain, insurance policies
providing each of the following coverages:
(a) Commercial general liability, insuring both Seller and Buyer against any
liability arising out of the ownership, use, occupancy or maintenance of the
Property, with minimum limits of not less than $3,000,000 on account of
bodily injuries and property damage per occurrence and $5,000,000 annual
aggregate coverage. The commercial general liability policy shall contain
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cross liability endorsements and shall insure performance by Seller of the
indemnity provisions of this Agreement.
(b) Business Automobile Liability Insurance, including owned, non -owned, and
hired vehicles, with have coverage of not less than $1,000,000.00 for bodily
injury and property damage for each accident.
(c) Workers' compensation insurance as required by applicable law, and
employers' liability insurance.
(d) Any insurance coverage required by law, or governmental agency, and/or any
agreements of record affecting the Property with respect to the performance of
Seller's work hereunder and/or Seller's use of the License.
Insurance required hereunder shall be in companies holding a "General Policyholders
Rating" of A /VIII or better as set forth in the most current issue of "Best's Key Rating Guide," or
a comparable rating as Buyer may reasonably designate. Before entering upon the Property
pursuant to the License, Seller shall deliver to Buyer certificates evidencing the existence and
amounts of the insurance required hereunder.
5. Indemnity. Unless caused by the gross negligence or willful misconduct of Buyer
or Buyer's officers or employees, Seller shall indemnify, defend (with counsel selected by Buyer)
and hold harmless Buyer and its officers, employees, representatives, contractors, agents, and their
respective successors and assigns (collectively, "Indemnitees") from any and all demands, claims
(including, without limitation, causes of action in tort), legal or administrative proceedings, losses,
liabilities, damages, penalties, fines, liens, judgments, costs or expenses whatsoever (including,
without limitation, attorneys' fees and costs), whether direct or indirect, known or unknown,
foreseen or unforeseen, which may arise on account of or in any way be connected with any
actions, suits, proceedings or claims brought by any third party against Buyer or any of the
Indemnitees relating to any act, omission, or event occurring as a result of the acts or omissions,
of Seller or Seller's partners, members, managers, officers, contractors, subcontractors, agents or
employees in or on the Property as related to the License, the Work, or the performance of or
failure to perform any of Seller's obligations under this Agreement. The provisions of this Section
5 shall survive the expiration or termination of this Agreement for a period of one (1) year
following completion of the Work.
6. Notices. Notices given under this Agreement shall be in writing, addressed as set
forth after the signature blocks below, and deemed given, if delivered by email, upon confirmation
of receipt, or if sent by nationally recognized overnight courier (e.g., Federal Express), on the next
business day following the date sent. The addresses for the purpose of this Section may be changed
by any party by giving written notice of the change to the other party in the manner provided
herein.
7. Time. If the final date of any period set forth herein falls on a Saturday, Sunday or
a Federal or California state holiday, the final date of that period shall be extended to the next
business day. As used herein, a "business day" is any day that is not a Saturday, Sunday, or Federal
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or California state holiday. Time is of the essence in the performance of each and every provision
of this Agreement.
8. Entire Agreement. This Agreement, together with the applicable provisions of the
PSA and SIA referenced herein, sets forth the entire understanding of the parties with respect to
the specific subject matter hereof. Any previous agreements or understandings (whether oral or
written) between the parties regarding the subject matter hereof are merged into and superseded
by this Agreement, except as explicitly referenced or incorporated herein. Any amendment or
modification to this Agreement shall be set forth in writing and signed by the parties.
9. Modification and Waiver. No amendment, modification or alteration of the terms
or provisions of this Agreement shall be binding unless in writing and duly executed by the parties
hereto, except that any of the terms or provisions of this Agreement may be waived in writing at
any time by the party which is entitled to the benefits of the waived terms or provisions. No waiver
of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any
other provision hereof (whether or not similar). No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver hereof.
10. Captions and References. All headings or captions herein are inserted only for
convenience and ease of reference and are not to be considered in the construction or interpretation
of any provision of this Agreement. Numbered or lettered paragraphs herein contained refer to
paragraphs of this Agreement unless otherwise expressly stated. All pronouns and all variations
thereof shall be deemed to refer to the masculine, feminine, or neuter, singular or plural, as the
context in which they are used may require. Any reference to statutes, other laws, or governmental
requirements or permits, or to other written agreements by any one or more of the parties hereto,
will include all amendments, modifications, or replacements of the relevant provisions thereof.
11. Governing Law, Venue. This Agreement shall be governed by and construed
accordance with the laws of the State of California without regard to conflict of law principles.
Venue shall be vested exclusively in the courts of competent jurisdiction in Riverside County,
California.
12. Severability. If any provision of this Agreement is unenforceable, all other
provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any provision is unenforceable, the
parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled.
13. Interpretation. This Agreement is the result of negotiations among the parties and
their respective counsel. Accordingly, the fact that counsel for one party or another may have
drafted this Agreement is immaterial, and this Agreement shall be construed as if all of the parties
have prepared it. The singular form shall include plural, and vice versa, and the masculine,
feminine, and neuter pronouns shall each include the other genders.
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14. Enforcement. The parties hereto agree that the remedy at law for any breach of this
Agreement is inadequate and that should any dispute arise concerning any matter hereunder, this
Agreement shall be enforceable by specific performance.
15. Attorneys' Fees. If either party to this Agreement is required to initiate or defend
or made a party to any action or proceeding in any way connected with this Agreement, the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorneys' fees; provided, however, that
the attorneys' fees awarded pursuant to this Section shall not exceed the hourly rate paid by City
for legal services multiplied by the reasonable number of hours spent by the prevailing party in the
conduct of the litigation. Attorneys' fees shall include attorneys' fees on any appeal, and in
addition a party entitled to attorneys' fees shall be entitled to all other reasonable costs for
investigating such action, taking depositions and discovery, and all other necessary costs the court
allows which are incurred in such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such action is prosecuted
to judgment. The court may set such fees in the same action or in a separate action brought for
that purpose.
16. Further Assurances. Each party shall from time to time execute and deliver such
further instruments as the other party or its respective counsel may reasonably request to effect the
intent of this Agreement, including but not limited to documents necessary for compliance with
the laws, ordinances, rules, or regulations of any applicable governmental authorities provided the
same shall be without material cost or liability.
17. Assignment; Parties in Interest. Neither Buyer nor Seller shall convey, assign or
otherwise transfer any of its rights or obligations under this Agreement without the express written
consent of the other party. Any conveyance, assignment or other transfer of any of Escrow
Holder's rights and obligations under this Agreement shall require express written consent of both
Buyer and Seller. This Agreement shall be binding upon and shall inure to the benefit of the Parties
and their respective successors and permitted assigns. This Agreement is not intended to benefit,
and shall not run to the benefit of or be enforceable by, any other person or entity other than the
Parties and their respective successors and permitted assigns.
18. Non -Liability of Public Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of Buyer shall be personally liable to Seller, or any successor
in interest, in the event or any default or breach by Buyer or for any amount which may become
due to Seller or to its successor, or for breach of any obligation of the terms of this Agreement.
19. Relationship of the Parties. Neither Seller nor any of Seller's agents, employees,
or contractors are or shall be considered to be agents of Buyer in connection with the performance
of the Work described in this Agreement. Nothing contained in this Agreement shall be deemed
or construed to create the relationship of principal and agent or create any partnership, joint
venture, or other association between Buyer and Seller. Buyer shall not pay any consideration or
compensation to Seller for the Work and/or the Improvements constructed on or to the benefit of
the Northern Property hereunder after the Close of Escrow.
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20. Execution. This Agreement may be executed in any number of counterparts, all of
which when taken together shall constitute one agreement binding on all parties, notwithstanding
that all parties are not signatories to the same counterpart. Electronic, digital or facsimile
signatures of the parties shall be valid as originals for all purposes hereunder. Each individual
executing this Agreement on behalf of a party represents and warrants that said individual is duly
authorized to execute and bind that party to all of its obligations under this Agreement.
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IN WITNESS WHEREOF, this Post Closing Agreement has been duly executed as of the
Effective Date above written.
ATTEST:
Monika Radeva, Authorit V ecretary
APPROVED AS TO FORM:
lam/ • v l� cum
William H. Ihrke,
BUYER:
LA QUINTA HOUSING AUTHORITY,
a public body, corporate and politic
By:
Jo illen, Executive Director
eral Counsel
Address for Notices to Buyer:
La Quinta Housing Authority
78495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
Email:
with a copy (which copy shall not constitute notice) to:
Rutan & Tucker, LLP
18575 Jamboree Rd, 9th Floor
Irvine, California 92612
Attn: William H. Ihrke
Email: bihrke@rutan.com
[Signatures continue on following page]
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SELLER:
BP Dune Palms LP,
a California limited partnership
By: Blackpoint Properties, LLC,
a California limited liability company,
its Man. • -r
`
By: Jef ey Halbert, Manager
Address for Notices to Seller:
BP Dune Palms LP
c/o Blackpoint Properties, LLC
1129 Industrial Avenue, Ste 205
Petaluma, CA 94592
Attn: Jeff Halbert, Manager
Email: jeff@blackpoint.com
with a copy (which copy shall not constitute notice) to:
Leland, Parachini, Steinberg, Matzger & Melnick, LLP
Attn: Andrew R. Cohen, Esq.
135 Main Street, Suite 1200
San Francisco, CA 94105
Email: ACohen@lpslaw.com
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
The land referred to herein is situated in the State of California, County of Riverside, City of La Quinta
and described as follows:
Parcel 1 of Parcel Map 38668 in the City of La Quinta , County of Riverside, State of California, per map
recorded in Book 257 pages 35 throught 38 of Parcel Maps, records of Riverside County, California.
APN: Portion of 600-030-038
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WIDE T.G.E.
TRE
19
PERMANENT
SLOPE
EASEMENT
C. y
Exhibit B
Site Map
sr6)14/A7 ,?
Outflow Improvements benefitting both
Northern and Southern Property to be
constructed in Main Drive + this area
C4iyz
1.5` WIDEC�
ACCESS �J
EASEMENT
r---- -- --MAIN DRIVE„
1.100'10'05V
6.32'
PARCEL "8"
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20' WIDE T.C.E.
PARCEL 3
TEMPORARY
CONSTRUCTION
EASEMENT
10' WIDE
�i /a
ACCESS
EASEMENT
15' WIDE
ACCESS
EASEMENT
8..57' WIDE
STATE TE HIGHWAY 111
ACCESS
EASEMENT
N59'56'OJT
36.37' ACCE_`