2003-12-18 Centre Pointe - Disposition and DA - CP Development, LLCPLEASE COMPLETE THIS INFORMATION
RECORDING REQUESTED BY:
JUNE S. GREEK, City Clerk
AND WHEN RECORDED MAIL TO:
CITY OF LA QUINTA
Attn: June Greek
P. O. Box 1504
78-495 Calle Tampico
La Quinta, CA 92253
HOC a 2004-000smss
01/05/2004 08:00A Fee:NC
Page 1 of 372
Recorded in Official Records
County of Riverside
Gary L. Orso
Assessor, County Clerk 8 Recorder
I!lIII IINlI III IIIII illll ��II IIIII III III II11 IIII
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
LA QUINTA REDEVELOPMENT AGENCY & CP DEVELOPMENT LA QUINTA, LLC
Title of Document
THIS AREA FOR
RECORDER'S
USE ONLY
THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3.00 Additional Recording Fee Applies)
C:\MYDATA\W PDOCS\FORMS\Recorder.wpd
J
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic,
and
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
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380889.09 al2/17/03
TABLE OF CONTENTS
Page
100. DEFINITIONS..................................................................................................................1
200. CONVEYANCE OF THE PROPERTY.........................................................................12
201.
Disposition of the Property.................................................................................12
201.1 Option "A"..............................................................................................12
201.2 Option "B„..............................................................................................13
202.
Escrow.................................................................................................................14
202.1 Costs of Escrow......................................................................................14
202.2 Payment of Purchase Price......................................................................15
202.3 Escrow Instructions.................................................................................15
202.4 Authority of Escrow Agent.....................................................................15
202.5 Closing....................................................................................................16
202.6 Termination.............................................................................................16
202.7 Closing Procedure...................................................................................17
203.
Review of Title of Property................................................................................17
204.
Title Insurance....................................................................................................18
205.
Conditions of Closing.........................................................................................18
205.1 Agency's Conditions of Closing.............................................................19
205.2 Developer's Conditions of Closing.........................................................21
206.
Studies and Reports.............................................................................................22
206.1 Access to Property..................................................................................22
206.2 Indemnification.......................................................................................
23
207.
Condition of the Property....................................................................................24
207.1 Disclosure...............................................................................................24
207.2 Investigation of Property.........................................................................24
207.3 No Further Warranties As To Property; Release of Agency ..................24
207.4 Developer Precautions After the Closing...............................................25
207.5 Developer Indemnity..............................................................................25
300. DEVELOPMENT OF THE PROJECT..........................................................................26
301. Scope of Development........................................................................................26
302. Design Review....................................................................................................26
302.1 Developer Submissions...........................................................................26
302.2 City Review and Approval......................................................................26
302.3 Revisions.................................................................................................26
302.4 Defects in Plans.......................................................................................26
302.5 Land Use Approvals...............................................................................26
303. Schedule of Performance....................................................................................27
304. Cost of Construction...........................................................................................27
305. Developer's Early Entry onto the Property.........................................................27
306. Insurance Requirements......................................................................................27
307. Indemnity............................................................................................................ 28
308. Rights of Access.................................................................................................29
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Page
309.
Compliance With Laws; Payment of Taxes........................................................29
309.1 Compliance with Laws...........................................................................29
309.2 Taxes and Assessments...........................................................................29
310.
Release of Construction Covenants....................................................................29
311.
Financing of the Project......................................................................................30
311.1 Approval of Financing............................................................................30
311.2 Changes Requested by Lenders..............................................................
31
311.3 Notice of Default to Mortgagee or Deed of Trust Holders; Right
toCure.....................................................................................................31
311.4 Failure of Holder to Complete Project....................................................32
311.5 Right of the Agency to Cure Mortgage or Deed of Trust Default ..........
32
311.6 Holder Not Obligated to Construct Project.............................................33
312.
Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, and
LandscapeParcel I..............................................................................................33
400. AGENCY LOAN; HOMEBUYER ASSISTANCE.......................................................33
401. Agency Loan; Disbursement...............................................................................33
402. Developer's Homebuyer Credit; Homebuyer Loan ............................................34
403. Agency Note; Agency Deed of Trust.................................................................. 34
404. Buyer Affordable Housing Documents..............................................................34
500. USE OF THE PROPERTY.............................................................................................35
501.
Use in Accordance with Redevelopment Plan ....................................................35
502.
Maintenance Covenants......................................................................................35
503.
Nondiscrimination Covenants.............................................................................35
504.
Effect of Violation of the Terms and Provisions of this Agreement
After Completion of Construction......................................................................
36
505.
Representations and Warranties..........................................................................37
505.1 Agency Representations..........................................................................37
505.2 Developer's Representations..................................................................38
600. DEFAULTS AND REMEDIES.....................................................................................39
601.
Default Remedies................................................................................................39
602.
Institution of Legal Actions................................................................................39
603.
Termination Prior to the Close of the Property Escrow or the Initial
Escrow.................................................................................................................
39
603.1 Termination Under Option "A"..............................................................
39
603.2 Termination Under Option `B"..............................................................40
604.
Termination Prior to Subsequent Parcel Conveyance........................................41
604.1 Termination by the Developer................................................................
41
604.2 Termination by the Agency....................................................................41
605.
Agency Option to Acquire Plans........................................................................42
606.
Option Agreement...............................................................................................42
607.
Right to Reverter and Power of Termination......................................................42
608.
Acceptance of Service of Process.......................................................................43
609.
Rights and Remedies Are Cumulative................................................................43
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Pau
610.
Inaction Not a Waiver of Default........................................................................43
611.
Applicable Law...................................................................................................
43
612.
Non -Liability of Officials and Employees of the Agency..................................43
613.
Attorneys' Fees...................................................................................................
43
700. GENERAL PROVISIONS.............................................................................................43
701.
Notices, Demands and Communications Between the Parties
...........................43
702.
Enforced Delay; Extension of Times of Performance........................................44
703.
Transfers of Interest in Property or Agreement..................................................45
703.1 Prohibition...............................................................................................45
703.2 Transfers Prior to Completion of Project................................................45
703.3 Assignment and Assumption of Obligations..........................................46
703.4 Successors and Assigns...........................................................................46
703.5 Assignment by Agency...........................................................................47
704.
Relationship Between Agency and Developer...................................................47
705.
Agency Approvals and Actions..........................................................................47
706.
Counterparts........................................................................................................47
707.
Integration...........................................................................................................
47
708.
Real Estate Brokerage Commission....................................................................47
709.
Titles and Captions.............................................................................................48
710.
Interpretation.......................................................................................................
48
711.
No Waiver...........................................................................................................48
712.
Modifications......................................................................................................
48
713.
Severability.........................................................................................................48
714.
Computation of Time..........................................................................................48
715.
Legal Advice.......................................................................................................48
716.
Time of Essence..................................................................................................
48
717.
Cooperation.........................................................................................................49
718.
Conflicts of Interest.............................................................................................49
719.
Time for Acceptance of Agreement by Agency .................................................
49
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List of Attachments
1. Property Legal Description
2. Site Map
3. Purchase Price
4. Form of Grant Deed
5. Disbursement Schedule
6. Affordable Homes Mix
7. Parcel 7 Residential Development Site Map
8. Scope of Development
9. Promissory Note
10. Deed of Trust
11. Early Entry Agreement
12. Easement Agreement
13. Development Agreement
14. Form of Option Agreement
15. Declaration
16. Release of Construction Covenants
17. Preliminary Budget
18. Form of Buyer Affordable Housing Documents
19. Affordable Housing Cost
20. Schedule of Performance
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DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement") is
entered into as of Dec. i& , 2003 ("Effective Date"), by and between the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and CP
DEVELOPMENT LA QUINTA, LLC, a California limited liability company (the
"Developer").
RECITALS
The following recitals are a substantive part of this Agreement:
A. Agency is a public body, corporate and politic, exercising governmental functions
and powers and organized and existing under the Community Redevelopment Law of the State
of California (Health & Safety Code Section 33000, et seq.).
B. Developer is a California limited liability company, specializing in the
development of multi -use commercial projects.
C. Agency owns fee title to that certain real property located southeast of the Miles
Avenue and Washington Street intersection in the City of La Quinta, California 92253 (the
"Property"). The Property is located in La Quinta Redevelopment Project No. 2 (the "Project
Area"), which Project Area is located in the City of La Quinta, California.
D. The Agency and the Developer desire by this Agreement for Developer to
purchase the Property from Agency and to construct, complete, and operate thereon a
commercial project containing a medical office/surgical facility, a development containing
sanctuary villas, a mid -price suites hotel, a resort -style condominium/casitas development,
two (2) sit-down restaurants, and two (2) single-family residential developments, with forty (40)
of the single-family homes restricted for sale to "Eligible Buyers" at an "Affordable Housing
Cost" (as those terms are defined below) (collectively, the "Project").
E. The Agency's disposition of the Property to the Developer, and the Developer's
subsequent construction, completion and operation of the Project thereon, pursuant to the terms
of this Agreement, are in the vital and best interest of the City of La Quinta and the health, safety
and welfare of its residents, and in accord with the public purposes and provisions of applicable
federal, state, and local laws and requirements.
NOW, THEREFORE, the Agency and Developer hereby agree as follows:
100. DEFINITIONS
"Affordable Homes" means the forty (40) single family homes in the Affordable
Housing Component of the Parcel 7 Residential Development that are restricted for sale to
Eligible Buyers. Any individual such home shall be referred to as an "Affordable Home."
"Affordable Homes Mix" means the mix of Affordable Homes, which is attached hereto
and incorporated herein as Attachment No. 6.
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380889.09 a12/17/03
"Affordable Housing Component" means the component of the Parcel 7 Residential
Development that consists of Developer's construction on a portion of Residential Parcel 7 of
forty (40) single family homes restricted for sale to Eligible Buyers at an Affordable Housing
Cost, as further described in the Scope of Development.
"Affordable Housing Cost" means a purchase price which would result in monthly
housing payments, including the cost for a thirty (30) year mortgage for that portion of the
purchase price which is to be paid in the form of loan proceeds under currently prevailing
mortgage loan rates or the interest rate of any below -market mortgage program for which such
purchaser has obtained a first trust deed loan, of (i) not less than twenty-eight percent (28%) of
the gross income of the household, nor more than thirty-five percent (35%) of one hundred ten
percent (110%) of Riverside County median income adjusted for family size appropriate for the
home, if the household earns not more than one hundred ten percent (110%) of Riverside
County median income; or (ii) not more than thirty-five percent (35%) of the actual gross income
of the household, if the gross income of the household exceeds one hundred ten percent (110%)
of Riverside County median income. Sample calculations of an Affordable Housing Cost for the
Affordable Homes are set forth in Attachment No. 19 hereto and in Exhibit B to the Declaration.
"Agency" means the La Quinta Redevelopment Agency, a public body, corporate and
politic, exercising governmental functions and powers and organized and existing under Chapter
2 of the Community Redevelopment Law of the State of California, Health and Safety Code,
Section 33000, et seq., and any assignee of or successor to its rights, powers and responsibilities.
"Agency Loan" is defined in Section 401 hereof.
"Agency Loan Amount" is defined in Section 401 hereof.
"Agency's Conditions Precedent to Closing" means the conditions precedent to a
Closing to the benefit of Agency, as set forth in Section 205.1 hereof.
"Agreement" means this Disposition and Development Agreement between the Agency
and the Developer.
"Best Knowledge" or "Actual Knowledge" means, for purposes of a representation or
warranty given hereunder, that such party has conducted a reasonable review of its files and has
made reasonable inquiry of its employees and agents responsible for the acquisition,
development and disposition of Sanctuary Villas Parcel 8, Sanctuary Villas Parcel9, Casitas
Parcel 2, Casitas Parcel 3, Casitas Parcel 4, Landscape Parcel C, Landscape Parcel E, Medical
Office/Surgical Facility Parcel10, Medical Office/Surgical Facility Parcel11, Medical
Office/Surgical Facility Parcel 12, Medical Office/Surgical Facility Parcel A, Residential
Parcel 5, Residential Parcel 7, Restaurant Parcel 1, Restaurant Parcel 13, Seeley Drive Parcel, or
Suites Hotel Parcel.
"Buyer Affordable Housing Documents" means those documents substantially in the
form attached hereto and incorporated herein as Attachment No. 18, a complete set of which
shall be required to be executed by each Eligible Buyer of one of the Affordable Homes.
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"Caritas Development" means the component of the Project that consists, collectively, of
Developer's construction and subsequent operation on Casitas Parcel 2 of the Parcel 2 Casitas
Development Component, on Casitas Parcel 3 of the Parcel 3 Casitas Development Component,
and on Casitas Parcel 4 of the Parcel 4 Casitas Development Component. The Casitas
Development shall contain approximately one hundred thirty-six (136) resort -style
condominium/casitas units, as further described in the Scope of Development.
"Casitas Parce12" means that approximately 2.27 acres of real property on which the
Developer shall construct the Parcel 2 Casitas Development Component. Casitas Parcel 2 is
depicted in the Site Map.
"Casitas Parcel 3" means that approximately 3.44 acres of real property on which the
Developer shall construct the Parcel 3 Casitas Development Component. Casitas Parcel 3 is
depicted in the Site Map.
"Casitas Parcel 4" means that approximately 2.91 acres of real property on which
Developer shall construct the Parcel 4 Casitas Development Component. Casitas Parcel 4 is
depicted in the Site Map.
"City" means the City of La Quinta, a California municipal corporation.
"Closing" means the close of escrow for the conveyance from the Agency to the
Developer of (i) the Property, if Developer elects to purchase the Property pursuant to Option
"A", or (ii) one or more Parcels, if Developer elects to purchase the Property pursuant to Option
"B", as set forth in Section 202.5 hereof.
"Closing Date" means the date Escrow closes for the conveyance from the Agency to the
Developer of (i) the Property, if Developer elects to purchase the Property pursuant to Option
"A", or (ii) one or more Parcels, if Developer elects to purchase the Property pursuant to Option
"B", as set forth in Section 202.5 hereof.
"Completion of Construction Date" is defined in Section 306 hereof.
"Condition of Property Title" is defined in Section 203 hereof.
"Contractor Bonds" means payment and performance bonds ensuring the completion of
a Phase of Development.
"Declaration" means that certain Declaration of Covenants, Conditions, and Restrictions
for Property substantially in the form attached hereto and incorporated herein as Attachment No.
15, which Developer is required to execute as one of Agency's Conditions precedent to the
Closing pursuant to which Agency shall convey to Developer Residential Parcel7. The
Declaration shall be recorded against Residential Parcel 7 at said Closing.
"Deed of Trust" means that certain Deed of Trust with Assignment of Rents and Rider
Attached Hereto substantially in the form attached hereto and incorporated herein as Attachment
No. 10, which secures Developer's repayment to Agency of the Agency Loan. The Deed of
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Trust shall be recorded against Residential Parcel 7 at the Closing pursuant to which Agency
conveys said Parcel to Developer.
"Default" means the failure of a party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and opportunity to cure, as
set forth in Section 601 hereof.
"Design Development Drawings" means those plans and drawings to be submitted to the
City with respect to the development of each Phase of Development, as set forth in Section 302
hereof.
"Developer" means CP Development La Quinta, LLC, a California limited liability
company, and its successors and assigns.
"Developer Representatives" means, collectively, Developer's directors, engineers,
analysts, officials, employees, agents, contractors, representatives, attorneys, advisers, and
consultants, including an Environmental Consultant.
"Developer's Conditions Precedent to Closing" means the conditions precedent to a
Closing to the benefit of Developer, as set forth in Section 205.2.
"Development Agreement" means the Development Agreement, substantially in the form
attached hereto and incorporated herein as Attachment No. 13, which Developer is required to
execute as one of Agency's Conditions Precedent to the Closing for, (i) the Property Escrow, if
Developer elects to purchase the Property pursuant to Option "A", or (ii) the Initial Escrow, if
Developer elects to purchase the Property pursuant to Option `B".
"Disbursement Schedule" means that certain disbursement schedule, attached hereto and
incorporated herein as Attachment No. 5, which sets forth the disbursement schedule and terms
of disbursement of the Agency Loan.
"Early Entry Agreement" means an Early Entry Agreement substantially in the form
attached hereto and incorporated herein as Attachment No. 11.
"Easement Agreement" means an Easement Agreement substantially in the form
attached hereto and incorporated herein as Attachment No. 12, which Agency and Developer
shall execute and record at or prior to the Closing for (i) the Property Escrow, if Developer elects
to purchase the Property pursuant to Option "A", or (ii) the Initial Escrow, if Developer elects to
purchase the Property pursuant to Option `B".
"Eligible Buyer" means a buyer of one of the Affordable Homes that qualifies as a
"person or family of moderate income" within the meaning of Health and Safety Code
Section 50093 (i.e., household whose income, adjusted for family size appropriate to the home,
does not exceed one hundred twenty percent (120%) of the Riverside County median income).
"Environmental Consultant" means a consultant engaged by Developer, at Developer's
sole cost and expense, which conducts the environmental investigations of the Property pursuant
to Section 207.2 hereof.
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"Escrow" is defined in Section 201 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Evidence of Financial Capability" means evidence reasonably satisfactory to Agency's
Executive Director that Developer has the financial resources and commitments necessary for the
acquisition of the Property and the subsequent development of each respective Phase of
Development, as further described in Section 311.
"FIRPTA" means the Foreign Investment in Real Property Transfer Act.
"Good Funds" means a confirmed wire transfer of immediately available funds,
cashier's or certified check drawn on or issued by the office of a financial institution located in
Riverside County, or cash.
"Governmental Requirements" means all laws, ordinances, statutes, codes, rules,
regulations, orders and decrees of the United States, the State of California, the County of
Riverside, the City, or any other political subdivision in which the Property, or any portion
thereof, is located, and of any other political subdivision, agency or instrumentality exercising
jurisdiction over the Agency, the Developer, and/or the Property, or any portion thereof.
"Grant Deed" means a grant deed, substantially in the form attached hereto and
incorporated herein by this reference as Attachment No. 4, pursuant to which Agency shall
convey to Developer title to (i) the Property, if Developer elects to purchase the Property
pursuant to Option "A", or (ii) one or more Parcels, if Developer elects to purchase the Property
pursuant to Option "B".
"Hazardous Materials" means any substance, material, or waste which is, or becomes,
regulated by any local governmental authority, the State of California, or the United States
Government, including, but not limited to, any material or substance which is (i) defined as a
"hazardous waste", "extremely hazardous waste", or "restricted hazardous waste" under Section
25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a "hazardous
substance" under Section 25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Carpenter -Presley -Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous
material," "hazardous substance," or "hazardous waste" under Section 25501 of the California
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response
Plans and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated byphenyls,
(viii) methyl tertiary butyl ether, (ix) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (x) designated as "hazardous substances" pursuant to Section 311 of the
Clean Water Act (33 U.S.C. §1317), (xi) defined as a "hazardous waste" pursuant to Section
1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C.
§6903) or (xii) defined as "hazardous substances" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
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"Initial Escrow" is defined in Section 201.2.
"Landscape Parcel C" shall mean that approximately .33 acres of Agency -owned real
property on which City intends to install landscaping, upon City's receipt of the Landscaping
Grants, and which Developer shall be required to maintain, subsequent thereto, as further
described in Section 312. Landscape Parcel C is depicted in the Site Map.
"Landscape Parcel E" shall mean that approximately .13 acres of Agency -owned real
property on which City intends to install landscaping, upon City's receipt of the Landscaping
Grants, and which Developer shall be required to maintain, subsequent thereto, as further
described in Section 312. Landscape Parcel E is depicted in the Site Map.
"Landscape Parcel H" shall mean that approximately .54 acres of Agency -owned real
property on which City intends to install landscaping, upon City's receipt of the Landscaping
Grants, and which Developer shall be required to maintain, subsequent thereto, as further
described in Section 312. Landscape Parcel H is depicted in the Site Map.
"Landscape Parcel 1" shall mean that approximately .12 acres of Agency -owned real
property on which City intends to install landscaping, upon City's receipt of the Landscaping
Grants, and which Developer shall be required to maintain, subsequent thereto, as further
described in Section 312. Landscape Parcel I is depicted in the Site Map.
"Medical Office/Surgical Facility" means the component of the Project that consists of
Developer's construction and subsequent operation on Medical Office/Surgical Facility Parcel 10
of the Parcel 10 Medical Office/Surgical Facility Component, on Medical Office/Surgical
Facility Parcel 11 of the Parcel 11 Medical Office/Surgical Facility Component, on Medical
Office/Surgical Facility Parcel 12 of the Parcel 12 Medical Office/Surgical Facility Component,
and on Medical Office/Surgical Facility Parcel A of the Parcel A Medical Office/Surgical
Facility Component. The Medical Office/Surgical Facility shall be a medical office and clinic
that offers specialized medical services, as further described in the Scope of Development.
"Medical Office/Surgical Facility Parcel A" means that certain approximately 6.47
acres of real property on which Developer shall construct the Parcel A Medical Office/Surgical
Facility Component. Medical Office/Surgical Facility Parcel A is depicted in the Site Map.
"Medical Office/Surgical Facility Parcel 10" means that certain approximately .73 acres
of real property on which Developer shall construct the Parcel 10 Medical Office/Surgical
Facility Component. Medical Office/Surgical Facility Parcel 10 is depicted in the Site Map.
"Medical Office/Surgical Facility Parcel 11" means that certain approximately 1.23
acres of real property on which Developer shall construct the Parcel 1 l Medical Office/Surgical
Facility Component. Medical Office/Surgical Facility Parcel 11 is depicted in the Site Map.
"Medical Office/Surgical Facility Parcel 12" means that certain approximately .73 acres
of real property on which Developer shall construct the Parcel 12 Medical Office/Surgical
Facility Medical Component. Medical Office/Surgical Facility Parcel 12 is depicted in the Site
Map.
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380889.09 a12/17/03 -6-
"Notice" shall mean a notice in the form prescribed by Section 701 hereof.
"Option 'A"' means Developer's option to purchase all of the Property, pursuant to the
Property Escrow, as further described in Section 201.1 hereof.
"Option Agreement" means the option agreement substantially in the form attached
hereto and incorporated herein as (i) Attachment No. 14A, if Developer elects to purchase the
Property pursuant to Option "A", or (ii) Attachment No. 14B, if Developer elects to purchase the
Property pursuant to Option "B". In the event the Developer elects to purchase the Property
pursuant to Option "A", the Option Agreement shall be recorded against the Property at the close
of the Property Escrow. In the event the Developer elects to purchase the Property pursuant to
Option `B", the Option Agreement shall be recorded against each set of Related Parcels, at the
first close of Escrow that includes any one of such Parcels.
"Option `B "' means Developer's option to purchase the Property in multiple phases, as
further described in Section 201.2 hereof.
"Outside Date for Closing" means the last date Escrow may close for the conveyance
from Agency to Developer of, (i) the Property, if Developer elects to purchase the Property
pursuant to Option "A", or (ii) each Parcel, if Developer elects to purchase the Property pursuant
to Option `B". The Outside Date for Closing is referenced in Section 202.5 hereof and is set
forth in the Schedule of Performance.
"Parcel" means �y of the following: Casitas Parcel 2, Casitas Parcel 3, Casitas
Parcel 4, Landscape Parcel C, Landscape Parcel E, Landscape Parcel H, Landscape Parcel I,
Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10, Medical
Office/Surgical Facility Parcel11, Medical Office/Surgical Facility Parcel12, Residential
Parcel5, Residential Parcel7, Restaurant Parcel1, Restaurant Parcel13, Sanctuary Villas
Parcel 8, Sanctuary Villas Parcel 9, Seeley Drive Parcel, Suites Hotel Parcel, or the Well Site
Parcel. The term "Parcels" means all of the Parcels described in the immediately preceding
sentence.
"Parcel A Medical Office/Surgical Facility Component" means the component of the
Project that consists of Developer's construction and subsequent operation on Medical
Office/Surgical Facility Parcel A of a portion of the Medical Office/Surgical Facility, as further
described in the Scope of Development.
"Parcel I Restaurant" means the component of the Project that consists of Developer's
construction and subsequent operation on Restaurant Parcel 1 of a sit-down restaurant, as further
described in the Scope of Development.
"Parcel2 Casitas Development Component" means the component of the Project that
consists of Developer's construction and subsequent operation on Casitas Parcel 2 of a portion of
the Casitas Development, as further described in the Scope of Development.
"Parcel3 Casitas Development Component" means the component of the Project that
consists of Developer's construction and subsequent operation on Casitas Parcel 3 of a portion of
the Casitas Development, as further described in the Scope of Development.
892/015610-0061
380889.09 al2/17/03 —7—
"Parcel4 Casitas Development Component" means the component of the Project that
consists of Developer's construction and subsequent operation on Casitas Parcel 4 of a portion of
the Casitas Development, as further described in the Scope of Development.
"Parcel S Residential Development" means the component of the Project that consists of
Developer's construction and subsequent operation on Residential Parcel 5 of a single-family
residential development containing thirteen (13) single-family homes.
"Parcel 7Residential Development" means the component of the Project that consists of
Developer's construction and subsequent operation on Residential Parcel 7 of a single family
residential development containing fifty-four (54) single family homes, forty (40) of which shall
be the Affordable Homes.
"Parcel 7 Residential Development Site Map" means the map of the Parcel 7 Residential
Development, which map identifies the location of each of the homes to be constructed on
Residential Parcel 7. The Parcel 7 Residential Development Site Map is attached hereto and
incorporated herein as Attachment No. 7.
"Parcel 8 Sanctuary Villas Component" means the component of the Project that
consists of Developer's construction and subsequent operation on Sanctuary Villas Parcel 8 of a
portion of the Sanctuary Villas Development, as further described in the Scope of Development.
"Parcel 9 Sanctuary Villas Component" means the component of the Project that
consists of Developer's construction and subsequent operation on Sanctuary Villas Parcel 9 of a
portion of the Sanctuary Villas Development, as further described in the Scope of Development.
"Parcel 10 Medical Office/Surgical Facility Component" means the component of the
Project that consists of Developer's construction and subsequent operation on Medical
Office/Surgical Facility Parcel 10 of a portion of the Medical Office/Surgical Facility, as further
described in the Scope of Development.
"Parcel 11 Medical Office/Surgical Facility Component" means the component of the
Project that consists of Developer's construction and subsequent operation on Medical
Office/Surgical Facility Parcel 11 of a portion of the Medical Office/Surgical Facility, as further
described in the Scope of Development.
"Parcel 12 Medical Office/Surgical Facility Component" means the component of the
Project that consists of Developer's construction and subsequent operation on Medical
Office/Surgical Facility Parcel 12 of a portion of the Medical Office/Surgical Facility, as further
described in the Scope of Development.
"Parcel 13 Restaurant" means the component of the Project that consists of Developer's
construction and subsequent operation on Restaurant Parcel 13 of a sit-down restaurant, as
further described in the Scope of Development.
"Phase of Development" means any of the following components of the Project: Parcel
A Medical Office/Surgical Facility Component, Parcel 1 Restaurant, Parcel 2 Casitas
Development Component, Parcel 3 Casitas Development Component, Parcel 4 Casitas
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Development Component, Parcel 5 Residential Development, Parcel 7 Residential Development,
Parcel 8 Sanctuary Villas Component, Parcel 9 Sanctuary Villas Component, Parcel 10 Medical
Office/Surgical Facility Component, Parcel 11 Medical Office/Surgical Facility Component,
Parcel 12 Medical Office/Surgical Facility Component, or Parcel 13 Restaurant.
"Preliminary Development Budget" means the preliminary budget attached hereto as
Attachment No. 17 and incorporated herein by this reference.
"Preliminary Title Report" means the preliminary title report issued by the Title
Company that covers the Property, as described in Section 203.
"Project" means the commercial development to be constructed on the Property that
consists of a medical office/surgical facility ("Medical Office/Surgical Facility"); a development
containing approximately twenty-six (26) sanctuary villas ("Sanctuary Villas Development"); a
mid -price suites hotel containing approximately one hundred thirty-four (134) guest rooms
("Suites Hotel"); a resort -style condominium/casitas project containing approximately one
hundred thirty-six (136) condominium/casitas units ("Casitas Development"); two (2) sit-down
restaurants; a residential development containing thirteen (13) single-family homes ("Parcel 5
Residential Development"); and a residential development containing fifty-four (54) single-
family homes ("Parcel 7 Residential Development"), forty (40) of which shall be restricted for
sale to Eligible Buyers at an Affordable Housing Cost ("the Affordable Housing Component").
"Promissory Note" or "Note" means that certain Promissory Note substantially in the
form attached hereto and incorporated herein as Attachment No. 9, which sets forth the terms
and conditions for Developer's repayment to Agency of the Agency Loan.
"Project Area" means the La Quinta Redevelopment Project No. 2, adopted by the City
pursuant to the Redevelopment Plan.
"Property" means that approximately 42.47 acres of real property located southeast of
the Miles Avenue and Washington Street intersection in the City of La Quinta, California 92253.
The Property is legally described in the Property Legal Description and depicted in the Site Map.
"Property Environmental Reports" means the collective environmental investigations of
the Property conducted pursuant to Section 207.2 hereof.
"Property Escrow" is defined in Section 201.1 hereof.
"Property Exceptions" is defined in Section 203.
"Property Legal Description" means the description of the Property which is attached
hereto as Attachment No. 1 and incorporated herein by this reference.
"Purchase Price" means the price to be paid by Developer to the Agency in
consideration of the Agency's conveyance to Developer of fee title to (i) the Property, if
Developer elects to purchase the Property pursuant to Option "A", or (ii) a Parcel, if Developer
elects to purchase the Property pursuant to Option `B". The Purchase Price is referenced in
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Section 202.2 hereof. The Purchase Price for the Property and for each Parcel is set forth in
Attachment No. 3 hereto.
"Redevelopment Plan" means the Redevelopment Plan for the Project Area, adopted on
May 16, 1989, by Ordinance No. 139, of the City Council of the City of La Quinta, which
Redevelopment Plan is incorporated herein by reference.
"Related Parcel" means a Parcel that has a substantially similar use as another Parcel.
The following are groupings of Parcels deemed to be Related Parcels: (1) Sanctuary Villas
Parcel 8 and Sanctuary Villas Parcel 9; (2) Casitas Parcel 2, Casitas Parcel 3, and Casitas Parcel
4; (3) Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel 10,
Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12; (4)
Residential Parcel 5 and6 Residential Parcel 7; and (5) Suites Hotel Parcel, Restaurant Parcel 1,
and Restaurant Parcel 13.
"Release of Construction Covenants" means the document which evidences the
Developer's satisfactory completion of a Phase of Development, as set forth in Section 310
hereof, substantially in the form of Attachment No. 16 hereto which is incorporated herein by
this reference.
"Residential Parcel S" means that certain approximately 2.19 acres of real property on
which Developer shall construct the Parcel 5 Residential Development. Residential Parcel 5 is
depicted in the Site Map.
"Residential Parcel T" means that approximately 8.99 acres of real property on which
Developer shall construct the Parcel 7 Residential Development. Parcel 7 is depicted in the Site
Map and in the Parcel 7 Residential Development Site Map.
"Restaurant Parcel I" means that approximately .92 acres of real property on which
Developer shall construct the Parcel 1 Restaurant. Restaurant Parcel 1 is depicted in the Site
Map.
"Restaurant Parcel 13" means that approximately 1.12 acres of real property on which
Developer shall construct the Parcel 13 Restaurant. Restaurant Parcel 13 is depicted in the Site
Map.
"Sanctuary Villas" means the component of the Project that consists, collectively, of
Developer's construction and subsequent operation on Sanctuary Villas Parcel 8 of the Parcel 8
Sanctuary Villas Component and on Sanctuary Villas Parcel 9 of the Parcel 9 Sanctuary Villas
Component. The Sanctuary Villas Development shall contain approximately twenty-six (26)
villas, as further described in the Scope of Development.
"Sanctuary Villas Parcel 8" means that certain approximately 3.74 acres of real property
on which Developer shall construct and subsequently operate the Parcel 8 Sanctuary Villas
Component. Sanctuary Villas Parcel 8 is depicted in the Site Map.
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"Sanctuary Villas Parcel 9" means that certain approximately 1.10 acres of real property
on which Developer shall construct and subsequently operate the Parcel 9 Sanctuary Villas
Component. Sanctuary Villas Parcel 9 is depicted on the Site Map.
"Schedule of Performance" means the Schedule of Performance attached hereto and
incorporated herein as Attachment No. 20, setting out the dates and/or time periods by which
certain obligations set forth in this Agreement must be accomplished.
"Scope of Development" means the Scope of Development attached hereto and
incorporated herein as Attachment No. 8, which describes the scope, amount and quality of
development of the Project to be constructed by the Developer pursuant to the terms and
conditions of this Agreement.
"Seeley Drive" means the component of the Project which consists of Developer's
development on the Seeley Drive Parcel of a public right of way, as further described in the
Scope of Development.
"Seeley Drive Parcel" means that approximately 2.76 acres of real property on which
Developer shall construct a right-of-way and which shall subsequently be conveyed to the City,
as a public right of way. The Seeley Drive Parcel is depicted in the Site Map.
"Site Map" means the map of the Property, which is attached hereto as Attachment No. 2
and incorporated herein by this reference. The Site Map is not a tract map and the parcels
depicted thereon are not legal parcels. Upon Developer's preparation of a tract map that creates
legal parcels substantially consistent with the Site Map, Developer shall prepare legal
descriptions for each Parcel, and Agency and Developer shall cooperate to attach such legal
descriptions to any document where such descriptions are required.
"Suites Hotel" means that component of the Project that consists of Developer's
construction and subsequent operation on the Suites Hotel Parcel of a Hilton Homewood Suites,
or such other comparable suites hotel that has a national reservation system, such as a Hawthorne
Suites or a Staybridge Suites Hotel by Holiday Inn. The Suites Hotel shall contain
approximately one hundred thirty-four (134) guest rooms, as further described in the Scope of
Development.
"Suites Hotel Parcel" means that approximately 3.35 acres of real property on which
Developer shall construct the Suites Hotel. The Suites Hotel Parcel is depicted in the Site Map.
"Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
"Transfer" is defined in Section 703.1 hereof.
"Unrestricted Homes" means the fourteen (14) single-family homes in the Parcel 7
Residential Development that are not restricted for sale to Eligible Buyers. Any individual such
home shall be referred to herein as an "Unrestricted Home".
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"Updated Report" means an update to the Preliminary Title Report, as described in
Section 203.
"Well Site ParceP' means that approximately .52 acres of real property which Developer
shall dedicate to the Coachella Valley Water District.
200. CONVEYANCE OF THE PROPERTY
201. Disposition of the Property. Developer agrees to purchase the Property from the
Agency, and the Agency agrees to sell to the Developer the Property, in accordance with and
subject to all of the terms, covenants, and conditions of this Agreement. Developer shall have
the election of (i) purchasing the Property from Agency all at once ("Option `A"') or,
alternatively, (ii) purchasing the Property from Agency in multiple phases, with each phase
containing one or more Parcels ("Option `B"'). If Developer elects to purchase the Property
pursuant to Option "A", the terms and conditions of Section 201.1 shall apply. If Developer
elects to purchase the Property pursuant to Option `B", the terms and conditions of Section 201.2
shall apply. The purchase price for the Property, and the purchase price for each of the
individual Parcels, is set forth in Attachment No. 3 hereof (each, a "Purchase Price"). Each such
Purchase Price represents the fair market value of the Property or the Parcel, as applicable.
201.1 Option "A" If Developer elects Option "A", Developer shall purchase the
Property from Agency all at once, through one escrow (the "Property Escrow"), in accordance
with the escrow provisions of Section 202 hereto. Notwithstanding the use of the term "Property
Escrow" in this Section 201.1, all of the general requirements for each Escrow, as set forth in
Section 202, shall apply to the Property Escrow, and every reference to an "Escrow" in this
Agreement shall be deemed to include the "Property Escrow". Notwithstanding Developer's
ownership of all of the Property, Developer shall be required to comply with the following
limitations regarding its construction of the Project (for purposes of this Section 201.1, the term
"construction" shall not include grading the Property and/or installing wet and dry utilities, all of
which activities Developer shall be entitled to undertake pursuant to the Early Entry Agreement,
as described in Section 305 hereof):
(a) The First Permitted Phase of Construction. Upon Developer's
acquisition of the Property, Developer may construct only the Suites Hotel, the Parcel 2 Casitas
Development Component, the Parcel 3 Casitas Development Component, the Parcel 4 Casitas
Development Component, the Parcel 8 Sanctuary Villas Component, the Parcel 9 Sanctuary
Villas Component, the Parcel 1 Restaurant, the Parcel 13 Restaurant, and Seeley Drive (the
"First Permitted Phase of Construction").
(b) The Second Permitted Phase of Construction. Upon Developer's
completion of (i) the installation of the foundation for the Suites Hotel, as determined by City's
Building Inspector, and (ii) the first pavement lift and the curbs and gutters of Seeley Drive, as
verified by the City Engineer, Developer may construct, in addition to those items permitted to
be constructed as part of the First Permitted Phase of Construction, (a) the Parcel A Medical
Office/Surgical Facility Component, (b) any one (1) of the Parcel 10 Medical Office/Surgical
Facility Component, the Parcel 11 Medical Office/Surgical Facility Component, or the Parcel 12
Medical Office/Surgical Facility Component, and (c) twenty (20) of the Affordable Homes on
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Residential Parcel 7 (the "Second Permitted Phase of Construction"). Notwithstanding anything
herein to the contrary, Developer shall construct on Medical Office/Surgical Facility Parcel A
one-third of the parking spaces to be developed thereon with the development of each of the
Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical
Facility Component, and the Parcel 12 Medical Office/Surgical Facility Component, whether
such development occurs during this Second Permitted Phase of Construction or any subsequent
phase of construction.
(c) The Third Permitted Phase of Construction. Upon Developer's
completion of the framing of all of the exterior walls of the Suites Hotel, as determined by the
City's Building Inspector, Developer may construct, in addition to those items permitted to be
constructed as part of the First Permitted Phase of Construction and the Second Permitted Phase
of Construction, (i) the remaining twenty (20) Affordable Homes on Residential Parcel 7, and (ii)
any one (1) of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical
Office/Surgical Facility Component, or the Parcel 12 Medical Office/Surgical Facility
Component (the "Third Permitted Phase of Construction").
(d) The Fourth Permitted Phase of Construction. Upon Developer's
completion of the construction of the exterior walls and roof of the Suites Hotel, as verified by
Developer's project architect for the Suites Hotel and confirmed by City's Building Inspector,
Developer may construct, in addition to those items permitted to be constructed as part of the
First Permitted Phase of Construction, the Second Permitted Phase of Construction, and the
Third Permitted Phase of Construction, (i) the Parcel 5 Residential Development, (ii) any or all
of the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11 Medical
Office/Surgical Facility Component, or the Parcel 12 Medical Office/Surgical Facility
Component, and (iii) the Unrestricted Homes on Residential Parcel 7.
201.2 Option "B" If Developer elects Option "B", Developer shall be entitled
to purchase the Parcels, and commence construction thereon of the applicable Phase of
Development, in the order set forth in this Section 201.2; provided, however, that nothing herein
is intended to permit Developer to elect not to purchase any or all of the Parcels. For purposes of
this Section 201.2, the term "construction" shall not include grading the Property and/or
installing wet and dry utilities, all of which activities Developer shall be entitled to undertake
pursuant to the Early Entry Agreement, as described in Section 305 hereof. Notwithstanding
anything herein to the contrary, each conveyance by Agency to Developer of one or more Parcels
shall be effected through an escrow ("Escrow") in accordance with the provisions of Section 202
hereto. With the exception of the "Initial Escrow" (as that term is described in paragraph (a)
below), which shall be opened within the time set forth in the Schedule of Performance, each
such Escrow shall be opened within the time reasonably required to affect each applicable
conveyance.
(a) The Initial Escrow. Within the time set forth in the Schedule of
Performance, Developer and Agency shall open an escrow for Agency's conveyance to
Developer of the Seeley Drive Parcel, the Suites Hotel Parcel, Casitas Parcel 2, and the Well Site
Parcel (the "Initial Escrow"). Pursuant to the Initial Escrow, Developer may, at its election, also
purchase any or all of Casitas Parcel 3, Casitas Parcel 4, Sanctuary Villas Parcel 8, Sanctuary
Villas Parcel 9, Restaurant Parcel 1 and/or Restaurant Parcel 13 (collectively, the "Initial Escrow
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Permitted Parcels"). In the event Developer elects not to purchase any or all of the Initial
Escrow Permitted Parcels at the Initial Escrow, Developer may purchase any or all of such
Parcels at any subsequent Escrow permitted by this Agreement. Notwithstanding the use of the
term "Initial Escrow" in this Section 201.2, all of the general requirements for each Escrow, as
set forth in Section 202, shall apply to the Initial Escrow, and each reference to an "Escrow" in
this Agreement shall be deemed to include the Initial Escrow.
(b) The Second Permitted Phase. Upon Developer's completion of (i)
the installation of the foundation for the Suites Hotel, as determined by City's Building
Inspector, and (ii) the first pavement lift and the curbs and gutters of Seeley Drive, as verified by
the City Engineer, Developer may purchase (a) Residential Parcel 7, (b) Medical Office/Surgical
Facility Parcel A, and (c) any one (1) of Medical Office/Surgical Facility Parcel 10, Medical
Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12.
Notwithstanding Developer's acquisition of Residential Parcel 7, Developer shall be limited to
the construction of twenty (20) of the Affordable Homes on Residential Parcel 7 until all of the
exterior walls of the Suites Hotel have been framed, as determined by the City's Building
Inspector ("Completion of the Suites Hotel Framing"). Notwithstanding anything herein to the
contrary, Developer shall construct on Medical Office/Surgical Facility Parcel A one-third of the
parking spaces to be developed thereon with the development of each of the Parcel 10 Medical
Office/Surgical Facility Component, the Parcel 11 Medical Office/Surgical Facility Component,
and the Parcel 12 Medical Office/Surgical Facility Component, whether such development
occurs during this phase of construction or any subsequent phase of construction.
(c) The Third Permitted Phase. Upon Developer's completion of the
Suites Hotel Framing, Developer may construct the remaining twenty (20) Affordable Homes on
Residential Parcel 7 and may purchase any one (1) of Medical Office/Surgical Facility Parcel 10,
Medical Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12.
(d) The Fourth Permitted Phase. Upon Developer's completion of the
construction of the exterior walls and roof of the Suites Hotel, as verified by Developer's project
architect for the Suites Hotel and confirmed by City's Building Inspector, Developer may
purchase (i) Residential Parcel 5 and (ii) any or all of Medical Office/Surgical Facility Parcel 10,
Medical Office/Surgical Facility Parcel 11, or Medical Office/Surgical Facility Parcel 12, and
may construct the Unrestricted Homes on Residential Parcel 7.
202. Escrow. The parties shall open each Escrow with First American Title Company,
at its office located at 3625 Fourteenth Street, Riverside, California 92502-0986, or another
escrow company mutually satisfactory to both parties (the "Escrow Agent").
202.1 Costs of Escrow. (i) Agency shall pay the premium attributable to the
ALTA standard form policy of title insurance for the Property or the applicable Parcel(s), as set
forth in Section 204 hereof, (ii) Developer shall pay for the documentary transfer taxes, if any,
due with respect to the conveyance of the Property or said Parcel(s), as applicable, and (iii)
Developer and Agency each agree to pay one-half of all other usual fees, charges, and costs
which arise from the Escrow.
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202.2 Payment of Purchase Price. On or before 5:00 p.m. on the business day
preceding the applicable Closing Date (or such earlier time as required by Escrow) for the
Property or one or more of the Parcels, Developer shall deposit with Escrow Agent the
applicable Purchase Price in Good Funds, and such additional funds as may be required to meet
Developer's portion of the closing costs as hereinafter provided.
202.3 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency for each Escrow described herein, and the Escrow Agent
to whom instructions are delivered is hereby empowered to act under this Agreement. Insurance
policies for fire or casualty are not to be transferred, and Agency will cancel its own policies
after the applicable Closing. All funds received in the Escrow shall be deposited with other
escrow funds in a general escrow account(s) and may be transferred to any other such escrow
trust account in any State or National Bank doing business in the State of California. All
disbursements shall be made by check from such account.
If in the opinion of either party and/or the construction lender it is necessary or
convenient in order to accomplish the Closing of the Property, or of any of the Parcels, and to
specify the order of recording of closing and loan documents, such party may require that the
parties sign supplemental escrow instructions; provided that if there is any inconsistency between
this Agreement and the supplemental escrow instructions, then the provisions of this Agreement
shall control. The parties agree to execute such other and further documents as may be
reasonably necessary, helpful or appropriate to effectuate the provisions of this Agreement.
Each Closing hereunder shall take place within thirty (30) days after the date when both the
Agency's Conditions Precedent to the Closing and the Developer's Conditions Precedent to the
Closing as set forth in Section 205 have been satisfied or waived by the respective parties.
Escrow Agent is instructed to release Agency's escrow closing and Developer's escrow closing
statements to the respective parties.
202.4 Authority of Escrow Agent. At each Closing, Escrow Agent is authorized
to, and shall:
(a) Pay and charge Developer and Agency for their respective shares
of the premium of the applicable Title Policy and any endorsements thereto as set forth in
Section 204 and any amount necessary to place title in the condition necessary to satisfy Section
203 of this Agreement.
(b) Pay and charge Developer and Agency for their respective shares
of any escrow fees, charges, and costs payable under Section 202.1 of this Agreement. -
(c) Disburse funds, deliver one or more executed Option Agreement(s)
to the Agency, and deliver and record the applicable Grant Deed(s) and the applicable Option
Agreement(s) when both the Developer's Conditions Precedent to the Closing and the Agency's
Conditions Precedent to the Closing have been fulfilled or waived by Developer and Agency.
(d) At the Closing for, as applicable, the Property Escrow or the Initial
Escrow only, deliver the executed Easement Agreement and Development Agreement to the
Agency, and deliver and record the Easement Agreement and Development Agreement when
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both the Developer's Conditions Precedent to the Closing and the Agency's Conditions
Precedent to the Closing have been fulfilled or waived by Developer and Agency.
(e) At the Closing which includes Residential Parcel 7, deliver the
executed Promissory Note, Deed of Trust, and Declaration to the Agency, and deliver and record
the Deed of Trust and Declaration when both the Developer's Conditions Precedent to the
Closing and the Agency's Conditions Precedent to the Closing for said Parcel have been fulfilled
or waived by Developer and Agency.
(f) Do such other actions as necessary, including obtaining the
applicable Title Policy, to fulfill its obligations under this Agreement.
(g) Within the discretion of Escrow Agent, direct Agency and
Developer to execute and deliver any instrument, affidavit and statement, and to perform any act
reasonably necessary to comply with the provisions of the Foreign Investment in Real Property
Transactions Act ("FIRPTA") and any similar state act and regulation promulgated thereunder.
Agency agrees to execute a Certificate of Non -Foreign Status by individual transferor and/or a
Certification of Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform
Act as may be required by Escrow Agent, on the form to be supplied by Escrow Agent.
(h) Prepare and file with all appropriate governmental or taxing
authorities a uniform settlement statement, closing statement, tax withholding forms including an
IRS 1099-S form, and be responsible for withholding taxes, if any such forms are provided for or
required by law.
202.5 Closing. Each transaction shall close ("Closing") within thirty (30) days
after the parties' satisfaction of all of Agency's Conditions Precedent to the Closing and all of
the Developer's Conditions Precedent to the Closing as set forth in Section 205 hereof, but in no
event later than the applicable Outside Date for Closing, which is set forth in the Schedule of
Performance. The Outside Date for Closing for the Property or each Parcel, as applicable, may
be extended for up to six (6) months, by mutual agreement of Agency and Developer. Subject to
the provisions in this Section 202.5, Closing shall occur at a time reasonably agreed on by the
parties. A "Closing" shall mean the time and day the applicable Grant Deed(s) is recorded with
the Riverside County Recorder. A "Closing Date" shall mean the day on which the applicable
Closing occurs.
202.6 Termination. If an Escrow is not in condition to close by the applicable
Outside Date for Closing, then either party which has fully performed under this Agreement
may, in writing, demand the return of money or property and terminate such Escrow. If either
party makes a written demand for return of documents or properties, the Escrow shall not
terminate until ten (10) days after Escrow Agent shall have delivered copies of such demand to
all other parties at the respective addresses shown in this Agreement. If any objections are raised
within said ten (10) day period, Escrow Agent is authorized to hold all papers and documents
until instructed by a court of competent jurisdiction or by mutual written instructions of the
parties. Developer, however, shall have the sole option to withdraw any money deposited by it
with respect to the Closing less Developer's share of costs of the Escrow. Termination of said
Escrow shall be without prejudice as to whatever legal rights either party may have against the
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other arising from this Agreement. If no demands are made, the Escrow Agent shall proceed
with the applicable Closing as soon as possible.
202.7 Closing Procedure. Escrow Agent shall close each Escrow as follows:
(a) (i) Record the applicable Grant Deed(s), the applicable Option
Agreement(s), deeds of trust and other security instruments securing Developer's construction
financing, (ii) at the Property Escrow or the Initial Escrow (as applicable) only, record the
Development Agreement and the Easement Agreement, (iii) at the Closing which includes
Residential Parcel 7, record the Deed of Trust and the Declaration, and (iv) deliver copies of
each of the documents listed in clauses (i) through (iii) above, showing recording information to
Agency and Developer;
(b) Deliver (i) the Option Agreement(s), (ii) at the Property Escrow or
the Initial Escrow (as applicable) only, the Development Agreement and the Easement
Agreement, and (iii) at the Closing which includes Residential Parcel 7, the Promissory Note,
Deed of Trust, and Declaration to the Agency and a copy to Developer;
(c) Deliver the applicable Title Policy and Grant Deed(s) to
Developer,
(d) File any informational reports required by Internal Revenue Code
Section 6045(e), as amended and any other applicable requirements; and
(e) Deliver the FIRPTA Certificate, if any, to Developer; and
(f) Forward to both Developer and Agency a separate accounting of
all funds received and disbursed for each party and copies of all executed and recorded or filed
documents deposited into the Escrow, with such recording and filing date and information
endorsed thereon.
203. Review of Title of Property. The Agency shall cause First American Title
Company, or another title company mutually agreeable to both parties (the "Title Company"), to
deliver to Developer a standard preliminary title report dated no earlier than the Effective Date
(the "Preliminary Title Report") with respect to the title to the Property, together with legible
copies of the documents underlying the exceptions ("Property Exceptions") set forth in the
Preliminary Title Report, within thirty (30) days after the Effective Date. The Developer shall
have the right to approve or disapprove the Property Exceptions and any proposed encumbrances
to the Property in the exercise of its sole discretion; provided, however, that the Developer
hereby approves the following Property Exceptions:
(a) The Redevelopment Plan.
(b) The lien of any non -delinquent property taxes and assessments (to
be prorated at close of each respective Escrow.
(c) All documents to be recorded at the close of the applicable Escrow.
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Developer shall have fifteen (15) days after the later of (i) the date of its receipt of the
Preliminary Title Report, or (ii) the date Developer receives the documents underlying the
Property Exceptions to give written notice to Agency and Escrow Holder of Developer's
approval or disapproval of any of such Property Exceptions. Developer's failure to give written
disapproval of the Preliminary Title Report within such time limit shall be deemed approval of
the Preliminary Title Report. If Developer notifies Agency of its disapproval of any Property
Exceptions in the Preliminary Title Report, Agency shall have the right, but not the obligation, to
remove any disapproved Property Exceptions within thirty (30) days after receiving written
notice of Developer's disapproval or provide assurances satisfactory to Developer that such
Property Exception(s) will be removed on or before the applicable Closing. If Agency cannot or
does not agree to remove any of the disapproved Property Exceptions before the applicable
Closing, Developer shall have fifteen (15) days after the expiration of such thirty (30) day period
to either give the Agency written notice that Developer elects to proceed with the purchase of the
Property subject to the disapproved Property Exceptions or to give the Agency written notice that
the Developer elects to terminate this Agreement. Developer's failure to give written notice of its
election within such fifteen (15) day period shall be deemed to be an election to proceed with the
purchase of the Property subject to the disapproved Property Exceptions. The condition of title,
including all of the Property Exceptions to title approved by Developer as provided herein shall
hereinafter be referred to as the "Condition of Property Title". From and after the Effective Date
hereof, and continuing until the earlier of (i) the Close of Escrow for the last portion of the
Property Developer intends to acquire from Agency, or (ii) termination of this Agreement,
Agency shall not further encumber the Property with additional Property Exceptions without the
Developer's prior written consent. Developer shall have the right to approve or disapprove any
further Property Exceptions reported by the Title Company after Developer has approved the
Condition of Property Title (which are not created by Developer). Developer and the Executive
Director of the Agency, on behalf of the Agency, shall have the authority to extend the foregoing
fifteen (15) day period by written agreement.
204. Title Insurance. Concurrently with recordation of the applicable Grant Deed(s)
conveying title to the Property or one or more of the Parcels (as applicable), there shall be issued
to Developer a CLTA owner's policy of title insurance (the "Title Policy"), together with such
endorsements as are reasonably requested by the Developer, issued by the Title Company
insuring that the title to the Property or the Parcel, as applicable, is vested in Developer in the
Condition of Property Title approved by Developer pursuant to Section 203 of this Agreement
(except that if the Developer elects to purchase the Property pursuant to Option `B", such Title
Policy shall only reflect the applicable Parcels and the Property Exceptions applicable thereto).
Agency shall pay the title insurance premium attributable to the CLTA owner's form policy of
title insurance. The Title Company shall, if requested by Developer, increase the amount of the
title insurance policy or provide the Developer with an extended policy, coverages, or
endorsements. Developer shall pay the portion of the premium associated with such extended or
additional coverages or endorsements, and the costs of preparation of a current survey of the
Property, if requested by Developer. The Title Company shall provide the Agency with a copy
of the Title Policy.
205. Conditions of Closing. Each Closing is conditioned upon the satisfaction of the
following terms and conditions within the times designated below:
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205.1 Agency's Conditions of Closins7. Agency's obligation to proceed with
each Closing is subject to the fulfillment or waiver by Agency of each and all of the conditions
precedent (a) through (1), inclusive, described below ("Agency's Conditions Precedent to the
Closing"), which are solely for the benefit of Agency, and which shall be fulfilled or waived by
the time periods provided for herein:
(a) No Default. Prior to the close of each Escrow, Developer shall not
be in default of any of its obligations under the terms of this Agreement with respect to said
Escrow and all representations and warranties of Developer contained herein shall be true and
correct in all material respects.
(b) Execution of Documents. Developer shall have executed and
delivered into the Escrow (i) the applicable Grant Deed(s), the applicable Option Agreement(s),
and any other documents required hereunder, (ii) at the Property Escrow or the Initial Escrow (as
applicable) only, the Easement Agreement and the Development Agreement, and (iii) at the
Closing that includes Residential Parcel 7, the Promissory Note, Deed of Trust, and Declaration.
(c) Payment of Funds. Prior to each Closing, Developer shall have
paid all of its required costs of the Closing into the applicable Escrow in accordance with Section
202 hereof.
(d) Design Approvals. If Developer elects to purchase the Property
pursuant to Option "A", Developer shall have obtained approval by the City of the Design
Development Drawings for the Suites Hotel, the Parcel 2 Casitas Development Component, and
Seeley Drive, as set forth in Section 302 herein. If Developer elects to purchase the Property
pursuant to Option `B", Developer shall have obtained approval by the City of the Design
Development Drawings for the Phase of Development applicable to each Parcel to be acquired at
the Closing, as set forth in Section 302 hereof.
(e) Land Use Approvals. If Developer elects to purchase the Property
pursuant to Option "A", Developer shall have received all land use approvals and other
discretionary permits and approvals required for the Suites Hotel, the Parcel 2 Casitas
Development Component, and Seeley Drive, pursuant to Section 302.5 hereof. If Developer
elects to purchase the Property pursuant to Option `B", Developer shall have received all land
use approvals and other discretionary permits and approvals required for the Phase of
Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5
hereof.
(f) Insurance. Developer shall have provided proof of insurance as
required by Section 306 hereof and Agency shall have approved of the same.
(g) Financing. As provided in Section 311.1 hereof, if (i) Developer
elects to purchase the Property pursuant to Option "A", the Agency shall have approved
Developer's financing for the development of the Suites Hotel, the Parcel 2 Casitas Development
Component, and Seeley Drive and, (ii) if Developer elects to purchase the Property pursuant to
Option `B", the Agency shall have approved Developer's financing for the Phase of
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Development applicable to each Parcel to be acquired at the Closing, and such financing shall
close and be available to the Developer upon the Closing.
(h) Grading_ Plans and Permits. If Developer elects to purchase the
Property pursuant to Option "A", Developer shall have obtained City approval of its final
grading plans for the Property, and grading permits shall be ready to be issued (upon payment of
necessary fees, posting of required security, and similar items). If Developer elects to purchase
the Property pursuant to Option `B", Developer shall have obtained City approval of its final
grading plans for the Phase of Development applicable to each Parcel to be acquired at the
Closing, and grading permits shall be ready to be issued (on payment of necessary fees, posting
of required security, and similar items).
(i) Building Plans and Permits. If Developer elects to purchase the
Property pursuant to Option "A", Developer shall have obtained City approval of its building
plans for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, and
building permits shall be ready to be issued (on payment of necessary fees, posting of required
security, and similar items). If Developer elects to purchase the Property pursuant to Option
"B", Developer shall have obtained City approval of its building plans for the Phase of
Development applicable to each Parcel to be acquired at the Closing, and building permits shall
be ready to be issued (on payment of necessary fees, posting of required security, and similar
items).
(j) Construction Costs and Contract. The Agency shall have approved
the Preliminary Development Budget pursuant to Section 304 hereof, and the Developer shall
have provided the Agency Executive Director a copy of the proposed contract, certified by the
Developer to be a true and correct copy thereof, between the Developer and one or more duly
licensed general contractors reasonably acceptable to the Agency for the construction of (i) the
Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, if Developer has
elected to purchase the Property pursuant to Option "A", or (ii) the Phase of Development
applicable to each Parcel to be acquired at the Closing, if Developer has elected to purchase the
Property pursuant to Option `B".
(k) Performance Bond. The Developer shall have obtained from
Developer's contractor and delivered to the Agency evidence, in a form satisfactory to Agency,
that said contractor has obtained Contractor Bonds for the completion of the construction of
(i) the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive, if
Developer has elected to purchase the Property pursuant to Option "A", or (ii) the Phase of
Development applicable to each Parcel to be acquired at the Closing, if Developer has elected to
purchase the Property pursuant to Option "B". Said Contractor Bonds shall provide that the
Agency is authorized to enforce the same as a third party beneficiary.
(1) Franchise Agreement. At the Initial Escrow or the Property
Escrow (as applicable) only, Developer shall have submitted to Agency and Agency shall have
approved, a franchise agreement or operating agreement with Hilton Homewood Suites, or a
comparable mid -price suites hotel that uses a national reservation system.
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205.2 Developer's Conditions of Closing. Developer's obligation to proceed
with the purchase of the Property or each Parcel (as applicable) is subject to the fulfillment or
waiver by Developer of each and all of the conditions precedent (a) through (i), inclusive,
described below ("Developer's Conditions Precedent to the Closing"), which are solely for the
benefit of Developer, and which shall be fulfilled or waived by the time periods provided for
herein:
(a) No Default. Prior to the applicable Closing, Agency shall not be in
default of any of its obligations under the terms of this Agreement and all representations and
warranties of Agency contained herein shall be true and correct in all material respects.
(b) Execution of Documents. Agency shall have executed (i) the
applicable Grant Deed(s), the applicable Option Agreement(s), and any other documents
required hereunder, (ii) at the Property Escrow or the Initial Escrow (as applicable) only, the
Easement Agreement, the Development Agreement, and (iii) at the Closing that includes
Residential Parcel 7, the Promissory Note, Deed of Trust, and Declaration, and delivered all such
documents into the Escrow.
(c) Review and Approval of Title. Developer shall have reviewed and
approved the Condition of Property Title, as provided in Section 203 hereof.
(d) Title Policy. The Title Company shall, upon payment of Title
Company's regularly scheduled premium, have agreed to provide to the Developer a Title Policy
at the applicable Closing, in accordance with Section 204 hereof.
(e) Environmental. The Developer shall have approved the
environmental condition of the Property, or applicable portion thereof, and shall not have elected
to terminate this Agreement with respect to the Property, or applicable portion thereof, pursuant
to Section 207.2 hereof.
(f) Design Approvals. If Developer elects to purchase the Property
pursuant to Option "A", Developer shall have obtained approval by the City of the Design
Development Drawings for the Suites Hotel, the Parcel 2 Casitas Development Component, and
Seeley Drive, as set forth in Section 302 herein. If Developer elects to purchase the Property
pursuant to Option `B", Developer shall have obtained approval by the City of the Design
Development Drawings for the Phase of Development applicable to each Parcel to be acquired at
the Closing, as set forth in Section 302 hereof.
(g) Land Use Approvals. If Developer elects to purchase the Property
pursuant to Option "A", Developer shall have received all land use approvals and other
discretionary permits and approvals required for the Suites Hotel, the Parcel 2 Casitas
Development Component, and Seeley Drive, pursuant to Section 302.5 hereof. If Developer
elects to purchase the Property pursuant to Option `B", Developer shall have received all land
use approvals and other discretionary permits and approvals required for the Phase of
Development applicable to each Parcel to be acquired at the Closing, pursuant to Section 302.5
hereof.
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(h) Grading and Building Permits. If Developer elects to purchase the
Property pursuant to Option "A", all grading permits required for the Property, and all building
Permits required for the Suites Hotel, the Parcel 2 Casitas Development Component, and Seeley
Drive, shall be available for issuance upon the payment of applicable fees. If Developer elects to
purchase the Property pursuant to Option `B", all grading and building permits required for the
construction of the Phase of Development applicable to each Parcel to be acquired at the Closing
shall be available for issuance upon the payment of applicable permit fees.
(i) Financing. As provided in Section 311.1 hereof, if (i) Developer
elects to purchase the Property pursuant to Option "A", Developer shall have obtained and the
Agency shall have approved Developer's financing for the development of the Suites Hotel, the
Parcel 2 Casitas Development Component, and Seeley Drive and, (ii) if Developer elects to
purchase the Property pursuant to Option `B", Developer shall have obtained and the Agency
shall have approved Developer's financing for the Phase of Development applicable to each
Parcel to be acquired at the Closing, and such financing shall close and be available to the
Developer upon the applicable Closing.
206. Studies and Reports.
206.1 Access to Property. Prior to the Closing for the Property Escrow or the
Initial Escrow (as applicable), Agency shall provide representatives of Developer the right of
access to all portions of the Property for the purpose of obtaining data and making surveys and
tests necessary to carry out this Agreement, including without limitation the investigation of the
environmental condition of the Property pursuant to Section 207 hereof. Any preliminary work
undertaken on the Property by Developer prior to the Closing for the Initial Escrow or the
Property Escrow (as applicable) shall be done at the sole expense of the Developer. In no event
shall Developer conduct any intrusive testing procedures on the Property without the prior
written consent of Agency, which consent shall not be unreasonably withheld. Such
investigations may be made by Developer or any of the Developer Representatives during any
normal business hours. Developer shall also have the right to investigate all matters relating to
the zoning, use and compliance with other applicable laws, codes, and ordinances which relate to
the use and occupancy of the Property. Agency shall cooperate to assist Developer in
completing such inspections and special investigations at no cost or expense to Agency. Such
inspections and investigations shall be conducted only upon no less than twenty-four (24) hours'
notice to Agency and shall be conducted at such times and in such a manner as to minimize any
disruption to the Property. Agency shall have the right, but not the obligation, to accompany
Developer during such investigations and/or inspections. As a condition to any such entry,
Developer shall (i) conduct all work or studies in a diligent, expeditious and safe manner and not
allow any dangerous or hazardous conditions to occur on the Property during or after such
investigation; (ii) comply with all applicable laws and governmental regulations; (iii) keep the
Property free and clear of all materialmen's liens, lis pendens and other liens arising out of the
entry and work performed under this paragraph; (iv) maintain or assure maintenance of workers'
compensation insurance (or state approved self-insurance) on all persons entering the property in
the amounts required by the State of California; (v) provide to Agency prior to initial entry a
certificate of insurance evidencing that Developer and/or the persons entering the Property have
procured and have in effect the insurance required by Section 306. Any preliminary work
undertaken pursuant to this Section 206 shall be undertaken only after securing any necessary
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permits from the appropriate governmental agencies. The Developer's approval of the
environmental and soils condition of the Property shall be a Developer's Condition Precedent to
the Closing, as set forth in Section 205.2 hereof. If the Developer, based upon the above tests,
reports and review, disapproves the environmental or soils condition of the Property, or any part
thereof, in its sole and absolute discretion, then the Developer may (i) remediate the Property, or
any specific contaminated portion thereof, to an acceptable condition, (ii) terminate this
Agreement with respect to those portions of the Property which Developer has disapproved, as a
result of the environmental or soils condition thereof; or (iii) terminate this Agreement by written
Notice to the Agency pursuant to Section 603 hereof. Notwithstanding anything herein to the
contrary, if the Developer elects to terminate this Agreement with respect to certain
contaminated portions of the Property, in accordance with clause (ii) above, Developer may not
elect not to purchase the Suites Hotel Parcel or Residential Parcel 7. From and after the
Effective Date hereof, and continuing until the earlier of (a) the Close of Escrow for the last
portion of the Property Developer intends to acquire from Agency, or (b) termination of this
Agreement, Agency shall not take any affirmative action to affect the condition of the Property
without the Developer's prior written consent.
206.2 Indemnification. Developer shall protect, defend, indemnify and hold
harmless Agency and City and Agency's and City's respective officers, officials, members,
employees, agents, and representatives (any of the foregoing shall be known individually as
"Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and severally, against
and from any and all claims, demands, causes of action, damages, costs, expenses, losses and
liabilities, at law or in equity, of every kind or nature whatsoever, including attorneys' fees and
expert witness fees, but excluding those resulting from environmental contamination of the
Property or other defects on the Property existing prior to Developer's entry thereon or not
otherwise caused by Developer or any of the Developer Representatives, but including, without
limitation, injury to or death of any person or persons and damage to or destruction of any
property, threatened, brought or instituted ("Claims"), arising out of or in any manner directly or
indirectly connected with the entry upon the Property by Developer or any of the Developer
Representatives pursuant to this Section or Section 207, below, including without limitation:
(a) any damage to the Property and any liability to any third party
incurred by reason of any acts or omission of, or any commission of any negligent or tortious
acts, by Developer or the Developer Representatives;
(b) any mechanics' or materialmen's liens, claims, demands, actions
or suits arising (directly or indirectly) from (i) any work performed or materials supplied to or for
Developer, or (ii) any activities of any of the Developer Representatives on or relating to the
Property (including, without limitation, any claims by any of such Developer Representatives);
and
(c) any costs of removing Developer or the Developer Representatives
from the Property after the expiration of the term hereof unless Developer is otherwise entitled to
possession of the Property at such time.
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207. Condition of the Property
207.1 Disclosure. The Agency shall, within the time set forth in the Schedule of
Performance, provide to the Developer copies of any environmental studies and reports with
respect to the Property which it has in its possession.
207.2 Investigation of Property. Pursuant to Section 206 hereof, the Developer
may engage an Environmental Consultant to make such investigations as Developer deems
necessary, including any "Phase 1" and/or "Phase 2" investigations of the Property, and the
Agency shall promptly be provided a copy of all reports and test results provided by the
Environmental Consultant (the "Property Environmental Reports"). The Developer shall be
permitted to make such inspections of the Property pursuant to the requirements of Section 206.
The Developer shall approve or disapprove of the environmental condition of the Property, or
portion thereof, in the Developer's sole discretion, not later than thirty (30) days prior to the
scheduled date for the Closing of the Initial Escrow or the Property Escrow (as applicable). The
Developer's approval of the environmental condition of the Property shall be a Developer's
Condition Precedent to the Closing, as set forth in Section 205 hereof. If the Developer, based
upon the Property Environmental Reports, disapproves the environmental condition of the
Property for any reason, in the Developer's sole discretion, then the Developer may (i) remediate
the Property, or any specific contaminated portion thereof, to an acceptable condition,
(ii) terminate the Agreement with respect to those portions of the Property in which Developer
has disapproved, as a result of the environmental or soils condition thereof; or (iii) terminate this
Agreement by written Notice to the Agency pursuant to Section 603 hereof. Notwithstanding
anything herein to the contrary, if the Developer elects to terminate this Agreement with respect
to certain contaminated portions of the Property, in accordance with clause (ii) above, Developer
may not elect not to purchase the Suites Hotel Parcel or Residential Parcel 7.
207.3 No Further Warranties As To Property: Release of Agency. The physical
condition, possession and title of the Property is and shall be delivered from Agency to
Developer in an "as -is" "where is" "with all faults" condition, with no warranty expressed or
implied by Agency, including without limitation, the presence of Hazardous Materials or the
condition of the soil, its geology, the presence of known or unknown seismic faults, or the
suitability of the Property for the development purposes intended hereunder.
Upon the Agency's conveyance of fee title to the Property to Developer,
Developer shall be deemed to have waived, released and discharged forever the Agency and the
City, and their employees, officers, agents, members and representatives, from all present and
future claims, demands, suits, legal and administrative proceedings and from all liability for
damages, losses, costs, liabilities, fees and expenses, present and future, arising out of or in any
way connected with the condition of the Property, any Hazardous Materials on the Property, or
the existence of Hazardous Materials contamination due to the generation of Hazardous
Materials from the Property, however they came to be placed there, except that arising out of the
negligence or intentional misconduct of the Agency, the City, or their employees, officers, agents
or representatives.
The Developer acknowledges that it is aware of and familiar with the provisions
of Section 1542 of the California Civil Code which provides as follows:
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380889.09 a]2/17/03
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materially affected his settlement with the debtor".
Only with respect to the condition of the Property as set forth in this Section
207.3, the Developer hereby waives and relinquishes all rights and benefits which it may have
under Section 1542 of the California Civil Code.
/M Developer's Initials
Notwithstanding anything herein to the contrary, if Developer elects to purchase
the Property pursuant to Option `B", the release set forth in this Section 207.3 shall become
effective as to the individual Parcels comprising the Property on the date Developer acquires fee
title to each of said Parcel(s).
207.4 Developer Precautions After the Closing. Upon the Closing for the
Property or for one or more Parcels (as applicable), the Developer shall take all necessary
precautions to prevent the release into the environment of any Hazardous Materials which are
located in, on or under the Property or such Parcels. Such precautions shall include compliance
with all Governmental Requirements with respect to Hazardous Materials. In addition, the
Developer shall install and utilize such equipment and implement and adhere to such procedures
as are consistent with commercially reasonable standards as respects the disclosure, storage, use,
removal and disposal of Hazardous Materials.
207.5 Developer Indemnity. Upon the Closing for the Property, or for one or
more Parcels (as applicable), Developer agrees to indemnify, defend and hold Agency harmless
from and against any claim, action, suit, proceeding, loss, cost, damage, liability, deficiency,
fine, penalty, punitive damage, or expense (including, without limitation, attorneys' fees),
resulting from, arising out of, or based upon (i) the presence, release, use, generation, discharge,
storage or disposal of any Hazardous Materials on, under, in or about, or the transportation of
any such Hazardous Materials to or from, the Property or the Parcels (as applicable) which
occurs after the Closing for the Property or such Parcels, or (ii) the violation, or alleged
violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license relating to
the use, generation, release, discharge, storage, disposal or transportation of Hazardous Materials
on, under, in or about to or from, the Property or the applicable Parcels which occurs after the
Closing for the Property or such Parcels. This indemnity shall include, without limitation, any
damage, liability, fine, penalty, cost or expense arising from or out of any claim, action, suit or
proceeding for personal injury (including sickness, disease or death), tangible or intangible
property damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, contamination, leak, spill, release
or other adverse effect on the environment. At the request of the Developer, the Agency shall
cooperate with and assist the Developer in its defense of any such claim, action, suit, proceeding,
loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or expense; provided that
the Agency shall not be obligated to incur any expense in connection with such cooperation or
assistance.
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300. DEVELOPMENT OF THE PROJECT
301. Scope of Development. The Developer shall develop or cause the development of
the Project in accordance with the Scope of Development, the City Municipal Code, and the
plans, drawings and documents submitted by the Developer and approved by the Agency as set
forth herein. Prior to commencement of construction of any Phase of Development the
Developer shall obtain and deliver to the Agency evidence of Contractor Bonds covering the
applicable Phase of Development, in an amount sufficient to complete the construction of said
Phase of Development, in the form approved by the Agency pursuant to Section 205.1(k), and
which provide that the Agency is authorized to enforce such completion bond as the primary
beneficiary or as a third party beneficiary.
302. Design Review.
302.1 Developer Submissions. Before commencement of construction of any
Phase of Development, and as a condition precedent to close of escrow pursuant to Section
205.1(d), and at or prior to the time set forth herein, the Developer shall submit to the City any
plans and drawings (collectively, the "Design Development Drawings") which may be required
by the City with respect to any permits and entitlements which are required to be obtained to
develop a Phase of Development, and such plans for the Phase of Development as required by
the City in order for the Developer to obtain building and grading permits for the Phase of
Development. Within thirty (30) days after the City's disapproval or conditional approval of such
plans, the Developer shall revise the portions of such plans identified by the City as requiring
revisions and resubmit the revised plans to the City.
302.2 City Review and Approval. The City shall have all rights to review and
approve or disapprove all Design Development Drawings and other required submittals in
accordance with the City Municipal Code, and nothing set forth in this Agreement shall be
construed as the City's approval of any or all of the Design Development Drawings.
302.3 Revisions. Any and all change orders or revisions required by the City
and its inspectors which are required under the City Municipal Code and all other applicable
Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under other applicable laws
and regulations shall be included by the Developer in its Design Development Drawings and
other required submittals and shall be completed during the construction of the applicable Phase
of Development.
302.4 Defects in Plans. The Agency and the City shall not be responsible either
to the Developer or to third parties in any way for any defects in any of the Design Development
Drawings, nor for any structural or other defects in any work done according to the approved
Design Development Drawings, nor for any delays reasonably caused by the review and
approval processes established by this Section 302.
302.5 Land Use Approvals. Before commencement of construction of any Phase
of Development or other works of improvement upon the Property, the Developer shall, at its
own expense, secure or cause to be secured any and all land use and other entitlements, permits
and approvals which may be required for the applicable Phase of Development or work of
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improvement by the City or any other governmental agency affected by such construction or
work, including but not limited to, any environmental studies and documents required pursuant
to the California Environmental Quality Act.
303. Schedule of Performance. The Developer shall submit all Design Development
Drawings, commence and complete all construction of the Project, and satisfy all other
obligations and conditions of this Agreement, within the times established therefor in the
Schedule of Performance; provided, however, Developer's commencement of construction of
each Phase of Development shall be in compliance with (i) Section 201.1, if Developer elects to
purchase the Property pursuant to Option "A", and (ii) Section 201.2, if Developer elects to
purchase the Property pursuant to Option `B".
304. Cost of Construction. Attached hereto as Attachment No. 17 is a preliminary
development budget for the Project, which sets forth the proposed development costs in detail
(the "Preliminary Development Budget"). All of the cost of planning, designing, developing and
constructing the Project, site preparation and grading shall be borne solely by the Developer.
305. Developer's Early Entry onto the Property. Within the time set forth in the
Schedule of Performance, Developer and Agency shall execute the Early Entry Agreement,
pursuant to which Agency shall permit Developer to enter upon the Property for purposes of
grading the Property, or any portion thereof, installing wet and dry utilities, and developing
Seeley Drive, in accordance with the terms and conditions set forth therein.
306. Insurance Requirements. The Developer shall indemnify, defend, and hold
harmless the Agency and the City, and their respective officers, officials, employees, agents, and
representatives, from all claims or suits for, and damages to, property and injuries to persons,
including accidental death (including expert witness fees, attorneys fees, and costs), which may
be caused by any of the Developer's activities under this Agreement.
Commencing with the Effective Date hereof and ending on the date Agency issues a
Release of Construction for the final Phase of Development to be constructed on the Property
(the "Completion of Construction Date"), Developer shall procure and maintain, at its sole cost
and expense, in a form and content satisfactory to the Executive Director, the following policies
of insurance:
A policy of commercial general liability insurance written on a per occurrence basis in an
amount not less than: (A) for death and bodily injury, either (i) a combined single limit of Three
Million Dollars ($3,000,000.00) or (ii) Three Million Dollars ($3,000,000.00) per person and
Three Million Dollars ($3,000,000.00) per occurrence, and Three Million Dollars
($3,000,000.00) in the aggregate, and (B) for property damage, Three Million Dollars
($3,000,000.00) per occurrence.
A policy of worker's compensation insurance in such amount as will fully comply with
the laws of the State of California and which shall indemnify, insure, and provide legal defense
for both the Developer and Agency against any loss, claim or damage arising from any injuries
or occupational diseases occurring to any worker employed by or any persons retained by
Developer in the course of carrying out the work or services contemplated in this Agreement.
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A policy of comprehensive automobile liability insurance written on a per occurrence
basis in an amount not less than either (i) bodily injury liability limits of Three Million Dollars
($3,000,000.00) per person and Three Million Dollars ($3,000,000.00) per occurrence, and
property damage liability limits of Three Million Dollars ($3,000,000.00) per occurrence and
Three Million Dollars ($3,000,000.00) in the aggregate or (ii) combined single limit liability of
Three Million Dollars ($3,000,000.00). Said policy shall include coverage for owned, non -
owned, leased, and hired cars.
The following additional requirements shall apply to all of the above policies of
insurance:
All of the above policies of insurance shall be primary insurance and, except the
Worker's Compensation insurance, shall name Agency, City, and their respective officers,
officials, members, employees, agents, and representatives as additional insureds. The insurer
shall waive all rights of subrogation and contribution it may have against Agency, City, and their
officers, officials, members, employees, agents, and representatives, and their respective
insurers. All of said policies of insurance shall provide that said insurance may not be amended
or cancelled without providing thirty (30) days' prior written notice to Agency and City. In the
event any of said policies of insurance are cancelled, the Developer shall, prior to the
cancellation date, submit new evidence of insurance in conformance with this Section to the
Executive Director. Not later than the Effective Date of this Agreement, Developer shall provide
the Executive Director with Certificates of Insurance or appropriate insurance binders evidencing
the above insurance coverages and said Certificates of Insurance or binders shall be subject to
the reasonable approval of the Executive Director.
The policies of insurance required by this Agreement shall not require Developer to meet
a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless approved in writing
by Agency's Executive Director in his or her sole and absolute discretion.
Developer agrees that the provisions of this Section shall not be construed as limiting in
any way the extent to which Developer may be held responsible for the payment of damages to
any persons or property resulting from the Developer's activities or the activities of any person
or persons for which the Developer is otherwise responsible.
307. Indemnity. Commencing on the Effective Date and ending on the Completion of
Construction Date, the Developer shall defend, indemnify, assume all responsibility for, and hold
the Agency and the City, and their representatives, volunteers, officers, employees and agents,
harmless from all claims, demands, damages, defense costs or liability of any kind for damage to
property or injuries to persons, including accidental death (including attorneys' fees and costs),
which may be caused by any acts or omissions of the Developer under this Agreement, whether
such activities or performance thereof be by the Developer or by anyone directly or indirectly
employed or contracted with by the Developer and whether such damage shall accrue or be
discovered before or after termination of this Agreement including, but not limited to,
Developer's failure to pay, if required, prevailing wages on the construction and development of
any Phase of Development. The Developer shall not be liable for property damage or bodily
injury occasioned by the negligence or willful misconduct of the Agency, the City or their
respective agents or employees.
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380889.09 a12/17/03
308. Rights of Access. Prior to the Completion of Construction Date, for purposes of
assuring compliance with this Agreement, representatives of the Agency shall have the right of
access to the Property, without charges or fees, at normal construction hours during the period of
construction for the purposes of this Agreement, including but not limited to, the inspection of
the work being performed in constructing the Project so long as Agency representatives comply
with all safety rules and do not interfere with construction. The Agency (or its representatives)
shall, except in emergency situations, notify the Developer prior to exercising its rights pursuant
to this Section 308. Agency shall indemnify, defend, and hold Developer harmless from and
against all costs, claims, liability and judgments arising from the Agency's exercise of its right of
access hereunder.
309. Compliance With Laws; Payment of Taxes.
309.1 Compliance with Laws. The Developer shall carry out the design,
construction and operation of the Project and each Phase of Development in conformity with all
applicable laws, including all applicable state labor standards, the City zoning and development
standards, building, plumbing, mechanical and electrical codes, and all other provisions of the
City Municipal Code, and all applicable disabled and handicapped access requirements,
including without limitation the Americans With Disabilities Act, 42 U.S.C. Section 12101, et
seq., Government Code Section 4450, et seq., Government Code Section 11135, at seq., and the
Unruh Civil Rights Act, Civil Code Section 51, at seq.
309.2 Taxes and Assessments. The Developer shall pay prior to delinquency all
ad valorem real estate taxes and assessments on the Property (after such time that Developer
acquires fee title to each of the Parcels composing the Property), subject to the Developer's right
to contest in good faith any such taxes. The Developer shall not apply for or receive any
exemption from the payment of property taxes or assessments on any interest in or to the Project
or any of the Parcels composing the Property. The Developer shall not take action, including any
assessment appeal, to decrease the assessed value of any of the Property (including the value of
each respective Phase of Development) below the final assessed value at the time the
development of the Property or a Phase of Development (as applicable) is completed. The
foregoing restriction shall not apply to individual homeowners who have purchased homes
within the Parcel 5 Residential Development or the Parcel 7 Residential Development.
310. Release of Construction Covenants. Upon the City's issuance of the last and final
certificate of occupancy for a Phase of Development, the Developer may request that the Agency
furnish the Developer with a Release of Construction Covenants for the applicable Phase of
Development. The Agency shall not unreasonably withhold any such Release of Construction
Covenants, and if the Developer is entitled thereto shall furnish to Developer a Release of
Construction Covenants for the applicable Phase of Development within fifteen (15) days after
Developer's request thereof. The Release of Construction Covenants shall be a conclusive
determination of satisfactory completion of the applicable Phase of Development and the Release
of Construction Covenants shall so state. Any party then owning or thereafter purchasing, leasing
or otherwise acquiring any interest in the real property for which a Release Construction
Covenants has been issued shall not (because of such ownership, purchase, lease or acquisition)
incur any obligation or liability under this Agreement except for those continuing covenants as
described in Article 400 of this Agreement.
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If the Agency refuses or fails to furnish a Release of Construction Covenants after
written request from the Developer, the Agency shall, within fifteen (15) days after written
request therefor, provide the Developer with a written statement of the reasons the Agency
refused or failed to furnish a Release of Construction Covenants. The statement shall also
contain the Agency's opinion of the actions the Developer must take to obtain a Release of
Construction Covenants for the applicable Phase of Development. A Release of Construction
Covenants shall not constitute evidence of compliance with or satisfaction of any obligation of
the Developer to any holder of any mortgage, or any insurer of a mortgage securing money
loaned to finance the applicable Phase of Development, or any part thereof. The Release of
Construction Covenants is not a notice of completion as referred to in Section 309.3 of the
California Civil Code. For purposes of this Section 310 only, the term "Phase of Development"
shall refer to Developer's construction of any of, the Casitas Development, the Sanctuary Villas
Development, the Medical Office/Surgical Facility, the Suites Hotel, the Parcel 1 Restaurant, the
Parcel 13 Restaurant, the Parcel 5 Residential Development, the Parcel 7 Residential
Development, and Seeley Drive. Notwithstanding anything in this Section 310 to the contrary,
Developer shall not be entitled to a Release of Construction Covenants for the final Phase of
Development to be constructed on the Property until Developer has completed the final
pavement lift of Seeley Drive, as verified by the City Engineer.
311. Financing of the Project.
311.1 Approval of Financing.
(a) If the Developer elects to purchase the Property pursuant to Option
"A", the following shall apply: Within the time set forth in the Schedule of Performance, and as
one of Agency's Conditions Precedent to the Closing for the Property Escrow, Developer shall
submit to Agency evidence that Developer has obtained (i) commitments for construction
financing from a commercial lender necessary to undertake the development of the Suites Hotel
Parcel, Casitas Parcel 2, and the Seeley Drive Parcel, and the construction of the Suites Hotel,
the Parcel 2 Casitas Development Component, and Seeley Drive, in accordance with this
Agreement (the "Construction Loan"); (ii) "Mezzanine" financing in a form acceptable to
Agency; and (iii) sufficient equity capital to cover the difference between (a) the sum of the
Construction Loan and the Mezzanine financing and (b) the total cost of developing the Suites
Hotel, the Parcel 2 Casitas Development Component, and Seeley Drive ("Developer's Equity
Contribution"). The Agency shall approve or disapprove such evidence of financing
commitments within thirty (30) days after receipt of a complete submission. Approval shall not
be unreasonably withheld or conditioned. If Agency shall disapprove any such evidence of
financing, Agency shall do so by Notice to Developer stating the reasons for such disapproval
and Developer shall promptly obtain and submit to Agency new evidence of financing. Agency
shall approve or disapprove such new evidence of financing in the same manner and within the
same times established in this Section 311.1(a) for the approval or disapproval of the evidence of
financing as initially submitted to Agency. Such evidence of financing shall include the
following: (a) a copy of a loan commitment(s) obtained by Developer from one or more financial
institutions for the Construction Loan, subject to such lenders' reasonable, customary and normal
conditions and terms, and (b) documentation satisfactory to the Agency as evidence of the
"Mezzanine" financing and Developer's Equity Contribution. As a condition to Developer's
commencement of construction of any subsequent Phase of Development, Developer shall have,
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as a condition to the receipt of building permits from the City, submitted to Agency and obtained
Agency's approval of, all of the items listed in clauses (i) through (iii) above, as they pertain to
the development of said Phase of Development,
(b) If the Developer elects to purchase the Property pursuant to Option
"B", the following shall apply: Within the times set forth in the Schedule of Performance, and as
one of Agency's Conditions Precedent to the Closing for each Escrow, Developer shall submit to
Agency evidence that Developer has obtained (i) commitments for construction financing from a
commercial lender necessary to undertake the development of the applicable Parcel, and the
construction of the applicable Phase of Development, in accordance with this Agreement (a
"Construction Loan"); (ii) "Mezzanine" financing in a form acceptable to Agency; and (iii)
sufficient equity capital to cover the difference between (a) the sum of the Construction Loan
and the Mezzanine financing and (b) the total cost of developing the applicable Phase of
Development ("Developer's Equity Contribution"). The Agency shall approve or disapprove
such evidence of financing commitments within thirty (30) days after receipt of a complete
submission for the applicable Phase of Development. Approval shall not be unreasonably
withheld or conditioned. If Agency shall disapprove any such evidence of financing, Agency
shall do so by Notice to Developer stating the reasons for such disapproval and Developer shall
promptly obtain and submit to Agency new evidence of financing. Agency shall approve or
disapprove such new evidence of financing in the same manner and within the same times
established in this Section 311.1(b) for the approval or disapproval of the evidence of financing
as initially submitted to Agency. Developer shall close each approved Construction Loan prior
to or concurrently with the real estate closing for the applicable Phase of Development. Such
evidence of financing shall include the following: (a) a copy of a loan commitment(s) obtained
by Developer from one or more financial institutions for the Construction Loan, subject to such
lenders' reasonable, customary and normal conditions and terms, and (b) documentation
satisfactory to the Agency as evidence of the "Mezzanine" financing and Developer's Equity
Contribution.
311.2 Changes Requested by Lenders. In the event that a lender which has been
approved pursuant to Section 311.1 hereof requires one or more amendments to this Agreement,
or any of the attachments hereto, which amendments are reasonably acceptable to the Agency
Executive Director and do not materially affect Agency's interest hereunder, the Agency
Executive Director or his or her designee is hereby authorized to make such amendments without
further authorization from the Agency; provided, however, that the foregoing is not intended to
restrict or limit the Agency's legislative discretion.
311.3 Notice of Default to Mortgagee or Deed of Trust Holders, Right to Cure.
With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may
deliver any notice or demand to Developer with respect to any breach or default by the
Developer in completion of construction of the Project or any Phase of Development, the
Agency shall at the same time deliver a copy of such notice or demand to each holder of record
of any mortgage or deed of trust which has previously requested such notice in writing. Each
such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its
option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to
cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such
default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is
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understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth
above for commencing to cure or remedy a Developer default which requires title and/or
possession of the Property (or portion thereof] if and to the extent any such holder has within
such sixty (60) day period commenced proceedings to obtain title and/or possession and
thereafter the holder diligently pursues such proceedings to completion and cures or remedies the
default.
311.4 Failure of Holder to Complete Project. In any case where, sixty (60) days
after the holder of any mortgage or deed of trust creating a lien or encumbrance upon the
Property or any part thereof receives a notice from Agency of a default by the Developer in
completion of construction of the Project, or any Phase of Development under this Agreement,
and such holder has not elected to construct as set forth in this Section 311, or if it has exercised
the option but has defaulted hereunder and failed to timely cure such default, the Agency may
purchase the mortgage or deed of trust by payment to the holder of the amount of the unpaid
mortgage or deed of trust debt, including principal and interest and all other sums secured by the
mortgage or deed of trust. If the ownership of the Property or any part thereof has vested in the
holder, the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings);
(b) All expenses with respect to foreclosure including reasonable
attorneys' fees;
(c) The net expense, if any (exclusive of general overhead), incurred
by the holder as a direct result of the subsequent management of the Property or part thereof;
(d) The costs of any improvements made by such holder;
(e) An amount equivalent to the interest that would have accrued on
the aggregate of such amounts had all such amounts become part of the mortgage or deed of trust
debt and such debt had continued in existence to the date of payment by the Agency; and
(f) Any customary prepayment charges imposed by the lender
pursuant to its loan documents and agreed to by the Developer.
311.5 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the
event of a mortgage or deed of trust default or breach by the Developer prior to the completion of
the construction of the Project or any Phase of Development, Developer shall immediately
deliver to Agency a copy of any mortgage holder's notice of default. If the holder of any
mortgage or deed of trust has not elected to construct, the Agency shall have the right but no
obligation to cure the default. In such event, the Agency shall be entitled to reimbursement from
the Developer of all costs and expenses incurred by the Agency in curing such default. The
Agency shall also be entitled to a lien upon the Property, or portion of the Property against which
the mortgage or deed of trust is recorded, to the extent of such costs and disbursements.
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311.6 Holder Not Obligated to Construct Project. The holder of any mortgage or
deed of trust encumbering the Property shall not be obligated by the provisions of this
Agreement to construct or complete the Project, or any portion thereof, or to guaranty such
construction or completion; nor shall any such covenant or any other provision in this Agreement
be construed so to obligate such holder.
312. Landscape Parcel C Landscape Parcel E Landscape Parcel H, and Landscape
Parcel I. In accordance with, and as further described in, the Development Agreement, the City
of La Quinta has applied for certain grants (the "Landscaping Grants") to partially fund the cost
of certain landscaping improvements (the "Landscaping Improvements") the City desires to
install on certain parkways adjacent to the Property (the "Parkway Areas"), and on Landscape
Parcel C, Landscape Parcel E, Landscape Parcel H, and Landscape Parcel I. Upon the City's
receipt of the Landscaping Grants and the City's subsequent installation of the Landscaping
Improvements, the Developer will be responsible for maintaining the Landscaping
Improvements.
If the City does not obtain the Landscaping Grants by March 1, 2004„ Developer shall be
obligated to construct landscaping improvements on the Agency Landscape Property, in
accordance with the standards set forth in the Landscaping Plan that was approved as part of the
various Site Development Permits for the Project (the "Developer Landscape Improvements").
Developer shall complete construction of the Developer Landscape Improvements at the time
Developer completes construction of the adjacent phase of Development, and Developer shall
not be entitled to a Release of Construction Covenants until it has completed the applicable
landscaping. For example, the Developer must complete the Developer Landscape
Improvements within Landscape Parcel I prior to or at the same time the Developer is required to
complete the Parcel 5 Residential Development, and Developer shall not be entitled to a Release
of Construction Covenants for the Parcel 5 Residential Development until Developer has
installed the Developer Landscape Improvements within Landscape Parcel I, as evidenced by a
City inspection and approval of same.
At the Closing of the Initial Escrow or the Property Escrow, as applicable, Agency and
Developer shall execute the Easement Agreement, which grants the Developer easements to
enter onto the Agency Landscape Property for purposes of (i) installing on the Agency
Landscape Property the Developer Landscape Improvements (which easement shall
automatically terminate if the City obtains the Landscaping Grants before March 1, 2004), and
(ii) maintaining the Landscaping Improvements or the Developer Landscape Improvements, as
applicable. The Easement Agreement sets forth said maintenance responsibilities.
Notwithstanding anything herein to the contrary, the City is not a party to this Agreement and
nothing herein is intended to impose any obligations on the City.
400. AGENCY LOAN; HOMEBUYER ASSISTANCE
401. Agency Loan; Disbursement. Subject to the terms and conditions of this
Agreement, including, but not limited to, the conditions to disbursement set forth in the
Disbursement Schedule, Agency shall assist in the financing of the construction of the
Affordable Housing Component by providing Developer with a loan (the "Agency Loan") from
the Agency's Low and Moderate Income Housing Fund in the amount of TWO MILLION FIVE
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HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000.00) (the "Agency Loan
Amount"). The Agency Loan shall be disbursed in accordance with the terms of the
Disbursement Schedule.
402. Developer's Homebuyer Credit, Homebuyer Loan. Developer shall provide a
credit towards the purchase price of each Affordable Home, by reducing the purchase price
thereof from the market price to a purchase price that constitutes an Affordable Housing Cost to
an Eligible Buyer (each, a "Developer Credit"). Each Developer Credit shall, upon the close of
escrow for such Affordable Home, be converted into a loan from the Agency to said Eligible
Buyer (a "Homebuyer Loan"), to be repaid, if at all, in accordance with the terms of the "Buyer
Promissory Note," as described in Section 404 below, and in the Declaration.
Notwithstanding anything herein to the contrary, in the event Developer provides
Developer Credits in a cumulative amount up to or exceeding the Agency Loan Amount prior to
the time the last Affordable Home has been sold to an Eligible Buyer, Developer shall continue
to provide a Developer Credit to Eligible Buyers of the remaining Affordable Homes. Developer
shall not be entitled to any reimbursement or setoff from Agency for any such Developer Credits
that are provided in excess of the Agency Loan Amount.
403. Agency Note; Agency Deed of Trust. The Agency Loan shall be evidenced by
the Agency Note and Agency Deed of Trust. Interest, in the amount of seven percent (7%) per
annum, shall accrue on the Agency Loan in accordance with the provisions set forth in the
Agency Note. Repayment of the Agency Loan shall be in accordance with the terms of the
Agency Note. Repayment of the Agency Note shall be partially secured by the Deed of Trust.
Notwithstanding any of the foregoing, however, (i) the Agency Loan Amount shall be
automatically reduced by the amount of each Developer Credit provided by Developer to an
Eligible Buyer, (ii) the Deed of Trust shall be reconveyed with respect to each single family
home that has been sold and conveyed by Developer to an individual purchaser, and (iii) at such
time when Developer has provided Developer Credits in a cumulative amount that equals or
exceeds the Agency Loan Amount, the Agency Note shall be cancelled and the Deed of Trust
reconveyed.
404. Buyer Affordable Housing Documents. Each buyer of an Affordable Home shall
be required to execute all of the following to assure the affordability of the Affordable Home to
Eligible Buyers for a period of forty-five (45) years following the date of transfer of said
Affordable Home from Developer to an Eligible Buyer ("Covenant Period"): (i) an affordable
housing agreement that prohibits during the Covenant Period the resale of the Affordable Home
except to an Eligible Buyer and grants the Agency an option to purchase the Affordable Home
("Option to Purchase") in the event the then -owner is unable to locate an Eligible Buyer ("Buyer
Affordable Housing Agreement"); (ii) a memorandum reciting Agency's Option to Purchase
(`Buyer Memorandum Re Option to Purchase"); (iii) a promissory note ("Buyer Promissory
Note") whose terms shall include, (a) principal in the amount of the Homebuyer Loan, (b) seven
percent (7%) interest per annum, compounded annually, (c) a 45-year term, (d) that no payments
shall be due unless an "Event of Acceleration" (as that term is defined in the Declaration) occurs,
triggering acceleration and repayment of the Homebuyer Loan amount, (e) assumability by an
Eligible Buyer, and (f) full credit of all payments at end of term if all conditions, covenants and
restrictions have been satisfied; (iv) a second deed of trust securing the Buyer Promissory Note
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("Buyer Second Trust Deed"); and (v) a disclosure statement acknowledging and consenting to
all of the affordability and resale restrictions contained in the aforementioned documents ("Buyer
Disclosure Statement'). The documents listed in clauses (i)-(v) above shall be collectively
referred to herein as the "Buyer Affordable Housing Documents." Current sample forms of each
of the Buyer Affordable Housing Documents are attached hereto and incorporated herein as
Attachment No. 18. Said forms shall be subject to change to conform with this Agreement and
all applicable Fannie Mae, HUD or other government or lender requirements.
500. USE OF THE PROPERTY
501. Use in Accordance with Redevelopment Plan.
501.1 The Developer covenants and agrees for itself, its successors, assigns, and
every successor in interest to the Property or any part thereof, that upon the Developer's
acquisition of the Property and during construction and operation of the Project, and thereafter,
the Developer shall devote the Property to the uses specified in the Redevelopment Plan and this
Agreement for the term of the land use controls of the Redevelopment Plan.
501.2 All uses conducted on the Property, including, without limitation, all
activities undertaken by the Developer pursuant to this Agreement, shall conform to the
Redevelopment Plan and all applicable provisions of the City Municipal Code. The foregoing
covenants shall run with the land until the expiration of the land use controls of the
Redevelopment Plan.
502. Maintenance Covenants. The Developer shall maintain the Property and all
improvements thereon, including all landscaping, in compliance with the terms of the
Redevelopment Plan, and with all applicable provisions of the City Municipal Code.
503. Nondiscrimination Covenants. The Developer covenants by and for itself and any
successors in interest that there shall be no discrimination against or segregation of any person or
group of persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, or any part thereof, nor shall the Developer itself or any person claiming under or
through it establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees of the Property. The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Property or
portion thereof on the basis of race, color, religion, sex, marital status, ancestry or national origin
of any person. All such deeds, leases or contracts shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person or group
of persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee or any person claiming under or through him or her,
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establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land".
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the premises herein leased".
(c) In contracts relating to the disposition of the realty: "There shall
be no discrimination against or segregation of, any person, or group of persons on account of
race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee
himself or herself or any person claiming under or through him or her, establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the
premises".
504. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction. The Agency is deemed the beneficiary of the terms and provisions
of this Agreement and of the covenants running with the land, for and in its own right, without
regard to whether the Agency has been, remains or is an owner of any land or interest therein in
the Property or the Project Area. The Agency shall have the right, if this Agreement or the
covenants herein 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 and to
avail itself of the rights granted herein to which it may be entitled, except as may be otherwise
set forth in this Agreement. The covenants contained in this Agreement shall not benefit or be
enforceable by any owner of any other real property within or outside the Project Area, or any
person or entity having an interest in such other real property. The covenants contained in this
Agreement shall remain in effect for the periods described herein, specifically including, without
limitation, the following:
(a) The environmental covenants set forth in Sections 207.3, 207.4,
and 207.5 shall remain in effect in perpetuity.
(b) The covenants pertaining to use of the Property which are set forth
in Section 501 shall remain in effect until the expiration of the land use controls of the
Redevelopment Plan.
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(c) The covenants pertaining to maintenance of the Property, and all
improvements thereon, as set forth in Section 502, shall remain in effect until the expiration of
the land use controls of the Redevelopment Plan.
(d) The covenants against discrimination, as set forth in Section 503,
shall remain in effect in perpetuity.
(e) The indemnity obligations, as set forth in Section 307 hereof, shall
remain in effect for the time period set forth in Section 307.
(f) The indemnity obligations, as set forth in Section 207.5 hereof,
shall remain in effect in perpetuity.
505. Representations and Warranties.
505.1 Agency Representations. Agency represents and warrants to Developer as
follows:
(a) Authority. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California Health and Safety Code
Section 33000), which has been authorized to transact business pursuant to action of the City.
Agency has full right, power and lawful authority to acquire, grant, sell and convey the Property
as provided herein, and the execution, performance and delivery of this Agreement by Agency
has been fully authorized by all requisite actions on the part of Agency.
(b) FIRPTA. Agency is not a "foreign person" within the parameters
of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any
similar state statute, or has complied and will comply with all the requirements under FIRPTA or
any similar state statute.
(c) No Conflict. To the Agency's best knowledge, Agency's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which Agency is a party or by
which it is bound.
(d) Conformance with Redevelopment Plan. The development and
use of the Project as required hereunder is in conformance with the Redevelopment Plan.
Until the Closing for the Property, or for any of the Parcels (as applicable), Agency shall,
upon learning of any fact or condition which would cause any of the warranties and
representations in this Section 505.1 not to be true as of the respective Closing, immediately give
written notice of such fact or condition to Developer. Such exception(s) to a representation shall
not be deemed a breach by Agency hereunder, but shall constitute an exception which Developer
shall have a right to approve or disapprove. If Developer elects to close the applicable Escrow
following disclosure of such information, Agency's representations and warranties contained
herein shall be deemed to have been made as of the applicable Closing, subject to such
exception(s). If, following the disclosure of such information, Developer elects to not close the
applicable Escrow, then this Agreement as to the applicable Escrow shall automatically
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terminate, and neither party shall have any further rights, obligations or liabilities hereunder;
provided, however, that in the event the Developer elects to purchase the Property pursuant to
Option `B", and the Initial Escrow closes, a failure to close any subsequent Escrow shall not
terminate this Agreement. In the event Developer elects to purchase the Property pursuant to
Option `B", and the Initial Escrow fails to close, this Agreement shall automatically terminate
and neither party shall have any further rights or obligations hereunder, except that both parties
agree to take whatever actions are reasonably necessary to terminate any other agreements that
may have been executed in furtherance hereof. The representations and warranties set forth in
this Section 505.1 shall survive each of the real estate closings provided for herein.
505.2 Developer's Representations. Developer represents and warrants to
Agency as follows:
(a) Authodly. Developer is a duly organized limited liability company
formed within and in good standing under the laws of the State of California. Developer has full
right, power and lawful authority to purchase and accept the conveyance of each of the Parcels,
and to undertake all obligations as provided herein and the execution, performance and delivery
of this Agreement by Developer has been fully authorized by all requisite actions on the part of
the Developer.
(b) Experience. The Developer is experienced in the development of
the type of commercial projects which would satisfy the development requirements set forth
herein.
(c) No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this Agreement will not constitute a
default or a breach under any contract, agreement or order to which the Developer is a party or
by which it is bound.
(d) No Developer Bankruptcy. Developer is not the subject of a
current or pending bankruptcy proceeding.
Until the Closing for the Property or any of the Parcels (as applicable), Developer shall,
upon learning of any fact or condition which would cause any of the warranties and
representations in this Section 505.2 not to be true as of the respective closing, immediately give
written notice of such fact or condition to Agency. Such exception(s) to a representation shall not
be deemed a breach by Developer hereunder, but shall constitute an exception which Agency
shall have a right to approve or disapprove. If Agency elects to close the applicable Escrow
following disclosure of such information, Developer's representations and warranties contained
herein shall be deemed to have been made as of the applicable Closing, subject to such
exception(s). If, following the disclosure of such information, Agency elects to not close the
applicable Escrow, then this Agreement as to the applicable Escrow shall automatically
terminate, and neither party shall have any further rights, obligations or liabilities hereunder;
provided, however, that in the event Developer elects to purchase the Property pursuant to
Option `B", and the Initial Escrow closes, a failure to close any subsequent Escrow shall not
terminate this Agreement. In the event Developer elects to purchase the Property pursuant to
Option `B", and the Initial Escrow fails to close, this Agreement shall automatically terminate
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and neither party shall have any further rights or obligations hereunder, except that both parties
agree to take whatever actions are reasonably required to terminate any other agreements that
may have been executed in furtherance hereof. The representations and warranties set forth in
this Section 505.2 shall survive each of the real estate closings provided for herein.
600. DEFAULTS AND REMEDIES
601. Default Remedies. Subject to the extensions of time set forth in Section 702 of
this Agreement, failure by either party to perform any action or covenant required by this
Agreement within the time periods provided herein following notice and failure to cure as
described hereafter, constitutes a "Default" under this Agreement. A party claiming a Default
shall give written notice of Default to the other party specifying the Default complained of.
Except as otherwise expressly provided in this Agreement, the claimant shall not institute any
proceeding against any other party, and the other party shall not be in Default if such party cures
such default within thirty (30) days from receipt of such notice, or if the nature of such default is
that it cannot reasonably be expected to be cured within such thirty (30) day period, if such party,
with due diligence, commences to cure, correct or remedy such failure or delay within thirty (30)
days from receipt of such notice, and completes such cure, correction or remedy with diligence.
602. Institution of Legal Actions. In addition to any other rights or remedies and
subject to the restrictions otherwise set forth in this Agreement, either party may institute an
action at law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, or to obtain any other remedy consistent with the purpose of this
Agreement. Agency shall also have, separate and independent from its Deed of Trust, the right
to pursue damages up to the amount of the Agency Loan Amount, for Developer's defaults;
provided, however, that in no event shall the Agency be entitled to consequential damages for
any Developer breach. For purposes of this Agreement, "consequential damages" shall include,
but not be limited to, potential loss of anticipated tax revenues from the Project or any
component thereof. Notwithstanding the foregoing, however, in no event shall the Developer be
entitled to damages of any kind from Agency, including damages for economic loss, lost profits,
or any other losses or consequential damages of any kind. Such legal actions must be instituted
in the Superior Court of the County of Riverside, State of California, in an appropriate municipal
court in that county, or in the District of the United States District Court in which such county is
located.
603. Termination Prior to the Close of the Property Escrow or the Initial Escrow.
603.1 Termination Under Option "A". In the event Developer elects to purchase
the Property pursuant to Option "A", the following termination provisions shall apply.
(a) Termination by Developer. In the event that prior to the close of
the Property Escrow (a) the Agency does not tender title to the Property pursuant to the
applicable Grant Deed in the manner and condition and by the date provided in this Agreement,
or (b) one or more of the Developer's Conditions Precedent to the Closing for the Property
Escrow is not fulfilled on or before the time set forth in the Schedule of Performance and such
failure is not caused by the Developer, or (c) any default of the Agency under this Agreement
prior to the close of the Property Escrow is not cured within the time set forth in Section 601
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hereof, after written demand by the Developer, or (d) the Developer timely disapproves the
environmental condition of all or a portion of the Property pursuant to Section 207 hereof, then
this Agreement may, at the option of the Developer, be terminated by written Notice thereof to
the Agency. From the date of the written Notice of termination of this Agreement by the
Developer to the Agency and thereafter this Agreement shall be deemed terminated and there
shall be no further rights or obligations between the parties with respect to the Property, or any
portion thereof, by virtue of or with respect to this Agreement. In the event of Developer's
disapproval of the environmental condition of a portion of the Property, pursuant to clause (d)
above, Developer may, as an alternative to terminating this Agreement in its entirety, terminate
this Agreement with respect to those portions of the Property which Developer has disapproved
as a result of the environmental or soils condition thereof, by written Notice thereof to Agency;
provided, however, Developer may not elect to terminate this Agreement with respect to the
Suites Hotel Parcel or Residential Parcel 7 unless Developer terminates this entire Agreement.
Upon such partial termination of this Agreement, there shall be no further rights or obligations
between the parties with respect to the portions of the Property covered by said termination.
(b) Termination by Agency. In the event that prior to the close of the
Property Escrow (a) the Developer (or any successor in interest) assigns the Agreement or any
rights herein or in the Property, or any portion thereof, in violation of this Agreement; or (b) one
or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before the
Outside Date for Closing (as it may be extended) and such failure is not caused by the Agency;
or (c) the Developer is otherwise in default of this Agreement and fails to cure such default
within the time set forth in Section 601 hereof, after written demand by the Agency; or (d) the
Developer is the subject of a bankruptcy proceeding, whether voluntarily or involuntarily
commenced, then this Agreement shall, at the option of the Agency, be terminated by the
Agency by written Notice thereof to the Developer. From the date of the written Notice of
termination of this Agreement by the Agency to the Developer and thereafter this Agreement
shall be deemed terminated and there shall be no further rights or obligations between the parties.
603.2 Termination Under Option `B". In the event Developer elects to purchase
the Property pursuant to Option `B", the following termination provisions shall apply.
(a) Termination by Developer. In the event that prior to the close of
the Initial Escrow (a) the Agency does not tender title to the Suites Hotel Parcel, Casitas Parcel
2, and/or any of the Initial Escrow Permitted Parcels Developer has elected to purchase at the
Initial Escrow pursuant to the applicable Grant Deed(s) in the manner and condition and by the
date provided in this Agreement, or (b) one or more of the Developer's Conditions Precedent to
the Closing for the Initial Escrow is not fulfilled on or before the time set forth in the Schedule of
Performance and such failure is not caused by the Developer, or (c) any default of the Agency
under this Agreement prior to the close of the Initial Escrow is not cured within the time set forth
in Section 601 hereof, after written demand by the Developer, or (d) the Developer timely
disapproves the environmental condition of the Property pursuant to Section 207 hereof, then this
Agreement may, at the option of the Developer, be terminated by written Notice thereof to the
Agency. From the date of the written Notice of termination of this Agreement by the Developer
to the Agency and thereafter this Agreement shall be deemed terminated and there shall be no
further rights or obligations between the parties with respect to the Property, or any portion
thereof, by virtue of or with respect to this Agreement.
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(b) Termination by Agency. In the event that prior to the close of the
Initial Escrow (a) the Developer (or any successor in interest) assigns the Agreement or any
rights herein or in the Suites Hotel Parcel, Casitas parcel 2, and/or any of the Initial Escrow
Permitted Parcels Developer has elected to purchase at the Initial Escrow in violation of this
Agreement; or (b) one or more of the Agency's Conditions Precedent to the Closing is not
fulfilled on or before the Outside Date for Closing (as it may be extended) and such failure is not
caused by the Agency; or (c) the Developer is otherwise in default of this Agreement and fails to
cure such default within the time set forth in Section 601 hereof, after written demand by the
Agency; or (d) the Developer is the subject of a bankruptcy proceeding, whether voluntarily or
involuntarily commenced, then this Agreement shall, at the option of the Agency, be terminated
by the Agency by written Notice thereof to the Developer. From the date of the written Notice of
termination of this Agreement by the Agency to the Developer and thereafter this Agreement
shall be deemed terminated and there shall be no further rights or obligations between the parties.
604. Termination Prior to Subsequent Parcel Conveyance. In the event Developer
elects to purchase the Property pursuant to Option `B", the following termination provisions
shall apply to each Escrow subsequent to the Initial Escrow.
604.1 Termination by the Developer. In the event that, after the close of the
Initial Escrow but prior to the close of any subsequent Escrow (a) the Agency does not tender
title to the applicable Parcel(s) pursuant to the applicable Grant Deed in the manner and
condition and by the date provided in this Agreement, or (b) one or more of the Developer's
Conditions Precedent to the Closing for the applicable Escrow is not fulfilled on or before the
time set forth in the Schedule of Performance and such failure is not caused by the Developer, or
(c) any default of the Agency under this Agreement prior to the Closing is not cured within the
time set forth in Section 601 hereof, after written demand by the Developer, then this Agreement
with respect to that Escrow may, at the option of the Developer, be terminated by written Notice
thereof to the Agency. From the date of the written Notice of termination of this Agreement by
the Developer to the Agency, this Agreement shall be deemed terminated with respect to such
Escrow and there shall be no further rights or obligations between the parties with respect to said
Parcel(s) by virtue of or with respect to this Agreement; provided, however, that termination of
this Agreement with respect to the terminated Escrow shall not relieve the Developer of its
obligations to construct the Suites Hotel and the Casitas Development, and to purchase from
Agency Residential Parcel 7 pursuant to the terms of this Agreement, which shall survive said
termination.
604.2 Termination by the Agency. In the event that, after the close of the Initial
Escrow but prior to the close of any subsequent Escrow (a) the Developer (or any successor in
interest) assigns the Agreement or any rights herein or in the applicable Parcel(s) in violation of
this Agreement; or (b) one or more of the Agency's Conditions Precedent to the Closing for the
applicable Escrow is not fulfilled on or before the applicable Outside Date for Closing (as it may
be extended) and such failure is not caused by the Agency; or (c) the Developer is otherwise in
default of this Agreement and fails to cure such default within the time set forth in Section 601
hereof, after written demand by the Agency; or (d) the Developer is the subject of a bankruptcy
proceeding, whether voluntarily or involuntarily commenced, then this Agreement with respect
to that Escrow shall, at the option of the Agency, be terminated by the Agency by written Notice
thereof to the Developer. From the date of the written Notice of termination of this Agreement
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by the Agency to the Developer, this Agreement with respect to the such Escrow shall be
deemed terminated and there shall be no further rights or obligations between the parties with
respect to said Parcel(s) by virtue of or with respect to this Agreement; provided, however, that
termination of this Agreement with respect to the terminated Escrow shall not relieve the
Developer of its obligations to construct the Suites Hotel and the Casitas Development, and to
purchase from Agency Residential Parcel 7 pursuant to the terms of this Agreement, all of which
shall survive said termination.
605. Agency Option to Acquire Plans. If, at any time after the close of the Initial
Escrow or the Property Escrow (as applicable), this Agreement is terminated by the Agency as a
result of a default by the Developer, at the option of the Agency and without any additional
consideration, which option may be exercised in the Agency's sole and absolute discretion, the
Developer shall deliver to the Agency an executed assignment in a form reasonably acceptable to
the Agency of the Developer's right to use all plans, blueprints, drawings, sketches,
specifications, tentative or final subdivision maps, landscape plans, utilities plans, soils reports,
noise studies, environmental assessment reports, grading plans and any other materials relating to
the construction of the Project on the Property (the "Plans"), together with copies of all of the
Plans, as have been prepared for the development of the Project to date of the termination.
Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency
the copyright or other ownership rights of third parties. Agency understands and agrees that the
assignment to Agency under this Section 605 is subject and subordinate to any assignment which
Developer may make to a lender providing financing for the project, and Agency agrees to
execute any documents required by such lender acknowledging and effectuating such
subordination of Agency's rights in and to the assignment. Agency's acquisition or use of the
Plans or any of them shall be without any representation or warranty by Developer as to the
accuracy or completeness of any such Plans, and Agency shall assume all risks in the use of the
Plans.
606. Option Agreement. In addition to any rights and remedies available to Agency
hereunder, Agency shall be entitled, in its sole and absolute discretion, to repurchase the
Property, or a portion thereof, with all of the improvements thereon, from Developer in the event
that, (i) Developer fails to commence construction of a Phase of Development within certain
specified timeframes, (ii) after commencement of construction, Developer fails to continuously
proceed with, and complete, construction of a Phase of Development within certain specified
timeframes, or (iii) Developer transfers or suffers an involuntary transfer of the Property, or a
portion thereof, in violation of the terms hereof. Said repurchase rights shall be as set forth in an
option agreement to be recorded, at the applicable closing, (a) against the Property, if Developer
elects to purchase the Property pursuant to Option "A", or (b) against each set of Related Parcels,
if Developer elects to purchase the Property pursuant to Option `B". The form of the Option
Agreement is attached hereto and incorporated herein as Attachment No. 14 ("Option
Agreement").
607. Right to Reverter and Power of Termination. In addition to any rights and
remedies available to Agency hereunder, Agency shall be entitled, in its sole and absolute
discretion, to reenter and take possession of the Property, or a portion thereof, with all of the
improvements thereon, from Developer in the event that (i) Developer fails to commence
construction of a Phase of Development within certain specified timeframes, (ii) after
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commencement of construction, Developer fails to continuously proceed with and complete,
construction of the Phase of Development within certain, specified timeframes, or (iii) Developer
transfers or suffers an involuntary transfer of the Property, or a portion thereof, in violation of the
terms hereof. Said rights shall be as set forth in each Grant Deed pursuant to which Agency shall
convey the Property or a Parcel (as applicable) to Developer.
608. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency shall be
made by personal service upon the Executive Director of the Agency or in such other manner as
may be provided by law. In the event that any legal action is commenced by the Agency against
the Developer, service of process on the Developer shall be made by personal service upon any
officer of the Developer, whether made within or outside the State of California, or in such other
manner as may be provided by law.
609. Rights and Remedies Are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same
or different times, of any other rights or remedies for the same default or any other default by the
other party.
610. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver of any
Default or of any such rights or remedies, or deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary to protect, assert or enforce
any such rights or remedies.
611. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
612. Non -Liability of Officials and Employees of the Agency. No member, official or
employee of the Agency or the City shall be personally liable to the Developer, or any successor
in interest, in the event of any Default or breach by the Agency (or the City) or for any amount
which may become due to the Developer or its successors, or on any obligations under the terms
of this Agreement.
613. Attorneys' Fees. In any action between the parties to interpret, enforce, reform,
modify, rescind, or otherwise in connection with any of the terms or provisions of this
Agreement, the prevailing party in the action shall be entitled, in addition to damages, injunctive
relief, or any other relief to which it might be entitled, reasonable costs and expenses including,
without limitation, litigation costs, reasonable attorneys' fees and expert witness fees.
700. GENERAL PROVISIONS
701. Notices, Demands and Communications Between the Parties. Any approval,
disapproval, demand, document or other notice ("Notice") which either party may desire to give
to the other party under this Agreement must be in writing and may be given by any
commercially acceptable means to the party to whom the Notice is directed at the address of the
party as set forth below, or at any other address as that party may later designate by Notice.
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To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Phone No.: 760-777-7031
Facsimile No.: 760-777-7101
Attention: Assistant Executive Director
To Developer: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, California 92211
Phone No.: 760-776-9900
Facsimile No.: 760-776-9971
Attention: Richard Oliphant
With copies to: Selzer, Ealy, Hemphill & Blasdel, LLP
777 Tahquitz Canyon Way, Suite 328
Palm Springs, California 92262
Phone No.: 760-320-5977
Facsimile No.: 760-320-9507
Attention: Emily Perri Hemphill, Esq.
and
Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, California 92210
Phone No.: 760-360-7886
Facsimile No.: 760-345-7175
Attention: Francis A. Wong
With a copy to: Rutan & Tucker, LLP
611 Anton, Suite 1400
P.O. Box 1950
Costa Mesa, California 92628
Phone No.: 714-641-5100
Facsimile No.: 714-546-9035
Attention: M. Katherine Jenson, Esq.
Any written notice, demand or communication shall be deemed received upon
delivery if delivered by hand, and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mall.
702. Enforced Delay: Extension of Times of Performance. In addition to specific
provisions of this Agreement, performance by either party hereunder shall not be deemed to be in
Default, and all performance and other dates specified in this Agreement shall be extended,
where delays or Defaults are due to causes beyond the control or without the fault of the party
claiming an extension of time to perform, which may include the following: war; insurrection;
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strikes; lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public
enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority; litigation; unusually severe weather; inability to secure
necessary labor, materials or tools; delays of any contractor, subcontractor or supplier; acts or
omissions of the other party; or acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of the Agency which shall
not excuse performance by the Agency). Notwithstanding anything to the contrary in this
Agreement, an extension of time for any such cause shall be for the period of the enforced delay
and shall commence to run from the time of the commencement of the cause, if notice by the
party claiming such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be extended
in writing by the mutual agreement of Agency and Developer. Notwithstanding any provision of
this Agreement to the contrary, the lack of funding to complete the Project or any Phase of
Development shall not constitute grounds of enforced delay pursuant to this Section 702.
703. Transfers of Interest in Property or Agreement.
703.1 Prohibition. The qualifications and identity of the Developer as the
developer of high quality commercial developments are of particular concern to the Agency.
Furthermore, the parties acknowledge that the Agency has negotiated the terms of this
Agreement in contemplation of the development and operation of the Project on the Property and
the property tax increment and transient occupancy tax revenues to be generated by the operation
of the Project on the Property. Accordingly, until the Completion of Construction Date, (a) no
voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers
under this Agreement, (b) nor shall the Developer make any total or partial sale, transfer,
conveyance, assignment, subdivision, refinancing or lease of the whole or any part of the
Property or the Project thereon (collectively referred to herein as a "Transfer"), except as
provided in this Section 703.
703.2 Transfers Prior to Completion of Project. Prior to the Completion of
Construction Date, the Agency may approve or disapprove a proposed Transfer in its sole and
absolute discretion; provided that the Agency agrees to reasonably consider a proposed Transfer
to an entity in which the Developer or Dick Oliphant retains a minimum of fifty-one percent
(51 %) of the ownership or beneficial interest and retains management and control of the
transferee entity. The Agency may condition its approval of such a proposed Transfer prior to the
Completion of Construction Date (other than transfers approved pursuant to the immediately
preceding sentence) upon the payment of one-half of the net proceeds of the Transfer.
Notwithstanding the foregoing, Agency approval of a Transfer prior to the
Completion of Construction Date shall not be required in connection with any of the following:
(a) The conveyance or dedication of any portion of the Property to the
City or other appropriate governmental agency, or the granting of easements or permits to
facilitate construction of the Project (as defined herein).
(b) Any assignment for financing purposes (subject to such financing
being permitted pursuant to Section 311 herein), including the grant of a deed of trust to secure
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the funds necessary for land acquisition, construction and permanent financing of the Project or
of a Phase of Development.
(c) A transfer of any of the Suites Hotel, the Suites Hotel Parcel, the
Parcel 2 Casitas Development Component, Casitas Parcel 2, the Parcel 3 Casitas Development
Component, Casitas Parcel 3, the Parcel 4 Casitas Development Component and/or Casitas
Parcel 4 to Center Point Hotel Development, LLC, a California limited liability company.
(d) A transfer of any of the Parcel 8 Sanctuary Villas Component,
Sanctuary Villas Parcel 8, the Parcel 9 Sanctuary Villas Component, and/or Sanctuary Villas
Parcel 9 to Center Point Sanctuary, LLC, a California limited liability company.
(e) A transfer of any of the Parcel A Medical Office/Surgical Facility
Component, Medical Office/Surgical Facility Parcel A, Parcel 10 Medical Office/Surgical
Facility Component, Medical Office/Surgical Facility Parcel 10, Parcel 11 Medical
Office/Surgical Facility Component, Medical Office/Surgical Facility Parcel 11, Parcel 12
Medical Office/Surgical Facility Component, and/or Medical Office/Surgical Facility Parcel 12
to Medical Service Center of La Quinta, LLC, a California limited liability company intended to
be formed by Developer.
(f) A transfer of any of the Parcel 5 Residential Development,
Residential Parcel 5, the Parcel 7 Residential Development, and/or Residential Parcel 7 to (i)
Ehline Development Co., a California corporation ("Ehline"), or (ii) a limited liability company
or limited partnership to be formed by Ehline, and in which Ehline is the managing member of
the liability company or the general partner of the limited partnership.
In the event of a Transfer by Developer under subparagraphs (a), (b), (c), (d), (e),
or (f) above not requiring the Agency's prior approval, Developer nevertheless agrees that at
least thirty (30) days prior to such Transfer it shall give written notice to Agency of such
assignment and satisfactory evidence that the assignee has assumed in writing through an
assignment and assumption agreement of all of the obligations of this Agreement. In the event
such transfer is under subparagraph (e) or (f) above (other than a transfer to Ehline), Developer
shall, along with the notice required to be given pursuant to the immediately preceding sentence,
provide Agency with evidence that such proposed transferee entity has been duly formed in
accordance with the laws of the State of California. Any Transfer by Developer under
subparagraph (f) above may include the right to receive disbursements of the Agency Loan
pursuant to the terms of this Agreement.
703.3 Assignment and Assumption of Obligations., An assignment and
assumption agreement in form reasonably satisfactory to the Agency's legal counsel shall also be
required for all proposed Transfers requiring the Agency's approval.
703.4 Successors and Assigns. All of the terms, covenants and conditions of this
Agreement shall be binding upon the Developer and its permitted successors and assigns.
Whenever the term "Developer" is used in this Agreement, such term shall include any other
permitted successors and assigns as herein provided.
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703.5 Assignment by Agency. The Agency may assign or transfer any of its
rights or obligations under this Agreement with the approval of the Developer, which approval
shall not be unreasonably withheld; provided, however, that the Agency may assign or transfer
any of its interests hereunder to the City at any time without the consent of the Developer.
704. Relationship Between Agency and Developer. It is hereby acknowledged that the
relationship between the Agency and the Developer is not that of a partnership or joint venture
and that the Agency and the Developer shall not be deemed or construed for any purpose to be
the agent of the other. Accordingly, except as expressly provided herein or in the Attachments
hereto, the Agency shall have no rights, powers, duties or obligations with respect to the
development, operation, maintenance or management of the Project.
705. Agency Approvals and Actions. The Agency shall maintain authority of this
Agreement and the authority to implement this Agreement through the Agency Executive
Director (or his duly authorized representative). Any reference to the Agency Executive Director
herein shall be deemed to include such authorized representative. The Agency Executive
Director, or his or her designee, shall have the authority to make approvals, issue interpretations,
waive provisions, and/or enter into amendments of this Agreement on behalf of the Agency so
long as such actions do not materially or substantially change the uses or development permitted
on the Property, or materially or substantially add to the costs incurred or to be incurred by the
Agency as specified herein, and such approvals, interpretations, waivers and/or amendments may
include extensions of time to perform as specified in the Schedule of Performance. All other
material and/or substantial interpretations, waivers, or amendments shall require the
consideration, action and written consent of the Agency Board.
706. Counterparts. This Agreement may be signed in multiple counterparts which,
when signed by all parties, shall constitute a binding agreement. This Agreement is executed in
two (2) originals, each of which is deemed to be an original.
707. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement, notwithstanding any previous
negotiations or agreements between the parties or their predecessors in interest with respect to all
or any part of the subject matter hereof. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged in this Agreement
and shall be of no further force or effect. Each party is entering this Agreement based solely
upon the representations set forth herein and upon each party's own independent investigation of
any and all facts such party deems material. This Agreement includes Attachment Nos. 1 through
20, which are incorporated herein.
708. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission or
finder's fee in connection with the Developer's acquisition of the Property from the Agency. The
parties agree to defend and hold harmless the other party from any claim to any such commission
or fee from any other broker, agent or finder with respect to this Agreement which is payable by
such party as a result of the actions of the indemnifying party.
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709. Titles and Captions. Titles and captions are for convenience of reference only and
do not define, describe or limit the scope or the intent of this Agreement or of any of its terms.
Reference to section numbers are to sections in this Agreement, unless expressly stated
otherwise.
710. Interpretation. As used in this Agreement, masculine, feminine or neuter gender
and the singular or plural number shall each be deemed to include the others where and when the
context so dictates. The word "including" shall be construed as if followed by the words
"without limitation". This Agreement shall be interpreted as though prepared jointly by both
parties.
711. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall not be
construed as a waiver of any succeeding breach of the same or other covenants, agreements,
restrictions or conditions of this Agreement.
712. Modifications. Any alteration, change or modification of or to this Agreement, in
order to become effective, shall be made in writing and in each instance signed on behalf of each
party.
713. Severability. If any term, provision, condition or covenant of this Agreement or
its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term, provision,
condition or covenant to persons or circumstances other than those as to whom or which it is
held invalid or unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
714. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and including
the last day, unless the last day is a holiday or Saturday or Sunday, and then that day is also
excluded. The term "holiday" shall mean all holidays as specified in Section 6700 and 6701 of
the California Government Code. If any act is to be done by a particular time during a day, that
time shall be Pacific Standard Zone Time.
715. Legal Advice. Each party represents and warrants to the other the following: they
have carefully read this Agreement, and in signing this Agreement, they do so with full
knowledge of any right which they may have; they have received independent legal advice from
their respective legal counsel as to the matters set forth in this Agreement, or have knowingly
chosen not to consult legal counsel as to the matters set forth in this Agreement; and, they have
freely signed this Agreement without any reliance upon any agreement, promise, statement or
representation by or on behalf of the other party, or their respective agents, employees, or
attorneys, except as specifically set forth in this Agreement, and without duress or coercion,
whether economic or otherwise.
716. Time of Essence. Time is expressly made of the essence with respect to the
performance by the Agency and the Developer of each and every obligation and condition of this
Agreement.
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717. Cooperation. Each party agrees to cooperate with the other in this transaction
and, in that regard, to sign any and all documents which may be reasonably necessary, helpful, or
appropriate to carry out the purposes and intent of this Agreement including, but not limited to,
releases or additional agreements.
718. Conflicts of Interest. No member, official or employee of the Agency shall have
any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or
employee participate in any decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or association in which he is directly or
indirectly interested.
719. Time for Acceptance of Agreement by Agency. This Agreement, when executed
by the Developer and delivered to the Agency, must be authorized, executed and delivered by the
Agency on or before forty-five (45) days after signing and delivery of this Agreement by the
Developer or this Agreement shall be void, except to the extent that the Developer shall consent
in writing to a further extension of time for the authorization, execution and delivery of this
Agreement.
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IN WITNESS WHEREOF, the Agency and the Developer have executed this
Disposition and Development Agreement as of the date set forth above.
AGENCY:
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
polit( ice...,,
By:
"4
Executive Director
ATTEST:
ZRc'Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
Agency Counsel
DEVELOPER:
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By: �L- X,
—
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
882/015610-0061 _ S Q_
380889.09 a12/17/03
Dec-17-03 11:35am From-RUTAN & TUCKER LLP 714-546-9035 T-293 P.07/17 F-582
IN WITNESS WHEREOF, the Agency and the Developer have executed this
Disposition and Development Agreement as of the date set forth above.
AGENCY:
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
poi
By:
Executive Director
APPROVED AS TO FORM:
RUTAN & TU KER, LLP
M. Katherine Benson
Agency Counsel
DEVELOPER:
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
� � r
Hy:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By: --� Lu V
Richard R. Oliphant
its: President
s82v0i Snlu-0Ool —50-
380uv 09 u2n7103
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On ^Dsra., l4 .1, e`3 , before me, ..��v�s.. 5 • �►� •.e-.�
personally appeared i c� ar i to�r`•�
personally known to me or proved to me on the basis of satisfactory evidence) to be the
rson whose name( sre subscribed to the within instrument and acknowledged to me that
they executed the same in her/their authorized capacityksT, and that by( er/their
signature on the instrument the personX or the entity upon behalf of which the persona j
acted, executed the instrument.
Witness my hand and official seal.
r
JUNE S. GREEK
[SEAL] CMM*dM IZ7Jneo
MftV n,or -ono
STATE OF CALIFORNIA )
) ss
COUNTY OF Ri'.4 ears td
On 19 -1caa , before me, JK-yn e. S • Gw AAt J
personally appeared T. w.a.s" (�e VUQ'4est,.
personally known to me (or proved to me on the basis of satisfactory evidence) to be the
personO whose name(p%?are subscribed to the within instrument and acknowledged to me that
&he/they executed the same in (E&her/their authorized capacity(ie< and that by ii er/their
signatureXon the instrument the person or the entity upon behalf of, which the persona'f
acted, executed the instrument.
Witness my hand and official seal.
' JUNE S. GREEK
[SEAL] # Iz�
avenuew
0�h►CMMespiesJw,X=4
394/015610-0061
390243.13 a12/17/03 -26-
ATTACHMENT NO. 1
PROPERTY LEGAL DESCRIPTION
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE
7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19,
ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS
SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30,
INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS;
THENCE SOUTH 0002738" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL
WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND
THE TRUE POINT OF BEGINNING;
THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
960.27 FEET;
THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL
WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE;
THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE
OF 80.00 FEET;
THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00
FEET;
THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
41 °42'33", AN ARC DISTANCE OF 320.30 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF
90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
45027'41 ", AN ARC DISTANCE OF 63.48 FEET;
THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56
FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED
TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO.
108979, O.R.
THENCE SOUTH 00012'13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF
790.73 FEET TO AN ANGLE POINT THEREIN;
882/015610-0061
380889.09 a12/17/03
THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 42059'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE
OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC
DISTANCE OF 236.07 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN
EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT
HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY
RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD
CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4,
1968, DRAWING NO. 1758-10;
THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE
OF PARCEL "C", A DISTANCE OF 386.46 FEET;
THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C"
AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE
OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2
AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY
RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R.
THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL
2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 86011'26" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 005'41 ", AN ARC DISTANCE OF 401.22 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF
4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY
LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID
LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17°33'23"
EAST;
THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER
REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 75053'46" EAST;
882/015610-0061
390889.09 a12/17/03 -2-
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 68013' 18" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 67006-56" EAST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 66001' 12" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF
153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY
OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE;
THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
487.01 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID
NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER
DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF-
WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 36°57'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY
RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18°51'35", AN ARC
DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B.
SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING
42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS.
882/015610-0061
380889.09 a12/17/03 -3-
R
P.O.C.
CTR. 1 /4 COR.
SEC. 19
S 00'2T38"_E -
.MILES. AVENUE 75.00•
N 89'31' 3" E 487.01' N 89'3;
N 00'28'37" W
153.41 u)
T.P.oJL
sy2
in
to
L6
960.27' �� L7 £ -
S 00'26.40" E
112.88'
n S 44'44'32" E
90.06' cy
oy
N 66'Oi•12" SITE N 8239.56'" E
�' tR AREA•42.47 AC.
L4 PORTION OF THE S. 1 /2 OF
SEC. 19, T.5S., R.7E., S.B.M.
"®" (R)
C1�
L5 N 75'53'46" E
✓ R
1411R\-5 L3 PT. B
Ck
I �
R
LINE DATA ,,01
NUMBER
I DIRECTION
DISTANCE
Lt
S 00'18'01. E
397.49
L2
N 48`09 56 W
22.ov
L3
N 75 33'02" E
4.22'
L4
N 6T06'56 E
20.00'
L5
S 67'O6 56" W
20.00•
L6
N 00'26'40" W
20.00'
L7
N 89'33 22" E
80.00'
EXCEPTION �
I� PARCEL
J1 74. PT. A J
�"
N .(R) i
CURVE DATA I.
NUMBER DELTA RADIUS ARC LENGTH TANGENT
C1
41'42'33'
440.00
320.30
167.62
C2
45'27'41
80.00
63.48
33.52
C3
0757*46"
4565.17
236.07
118.06
C4
19'24'03" .
2500.00
846.52
427.35
C5
11-05'.41"
2072.00
401.22
201.24
C6
19'58 08"
2092.00
729.11
368.29
C7
02712.44"
2072.00 ,
80.00
40.01
C8
07*41'OV
2092.00
280.60
140.51
C9
00'32.28'
2500.00
23.61
11.81
C10
18-51 3V'
2500 00
822.91
415.21
w
4�4 84.
L2
ey��F
yq� F9r�
J.N. 1612
882/015610-0061
380889.09 a12/17/03 '4-
ATTACHMENT NO.2
SITE MAP
The Site Map is not a tract map and the parcels depicted thereon are not legal parcels.
Upon Developer's preparation of a tract map that creates legal parcels substantially consistent
with the Site Map, Developer shall prepare legal descriptions for each Parcel, and Agency and
Developer shall cooperate to attach such legal descriptions to any document where such
descriptions are required.
LOTS LAND USE
-- LOT - RESTAURANT
LOT 2 RESORT CASITAS *LOT 'D'
1"30 . r.
0.34 s
LOT 3 RESORT. CASITAS LOT 1
1N ..r.
-. LOT 4 - RESORT CASITAS 0.22 -
LOT 5 RESIDENTIAL
*LOT 8 PARK
.LOT 7 RESIDENTIAL - *LOT •C'
14297 ar.
LOT 8 - THE SANCTUARY 0.22
LOT. 9 - THE SANCTUARY
LOT K) - MEDICAL OFFICE BUILDINGS "'
LOT It - - MEDICAL OFFICE BUILDINGS
LOT 12 MEDICAL OFFICE. BUILDINGS
LOT 13 ' - RESTAURANT
LOT 14 ' HOTEL * LO'
s.;
0.1
CIO (y�ON LOTS LAND USE
LOT *W _ _ - - _ MEDICAL OFFICE PARKING / LANDSCAPE
LOT 'B- - - SEELEY DRIVE
*LOT-'C' - - - - 20' PARKWAY (WASHNGTON STREET)_
-* LOT 'D'.. - - - - - CRY LANDSCAPE ENTRY
"* LOT 'E'. - - - _ 20' PARKWAY (WASHINGTON STREET)
LOT -F• - - - WELLSITE
* LOT 'G' - - _ - - WELLSITE (N.A.PJ
* LOT'H' - - - - - - - 2W PARKWAY (MILES AVENUE)
* LOT 'I'. _ - - - - - - 20' PARKWAY (MILES AVENUE)
*LOT 'H
aai;.`ar
We La t RUffM iCCUMIOPERCU[ AgW6Y-
They are depicted an this Site Map for
convenience of refeae+nce only.
N.T.S.
NOVEMBER 21. 2003
882/015610-0061
380889.09 a12/17/03
ATTACHMENT NO.3
PURCHASE PRICE
Sanctuary Villas Parcel 8
$ 841,193.42
Sanctuary Villas Parcel 9
247,409.82
Casitas Parcel 2
510,563.92
Casitas Parcel 3
773,718.02
Casitas Parcel 4
654,511.46
Landscape Parcel C
0
Landscape Parcel E
0
Landscape Parcel H
0
Landscape Parcel I
0
Medical Office/Surgical Facility A
1,455,219.64
Medical Office/Surgical Facility 10
164,190.15
Medical Office/Surgical Facility 11
276,649.17
Medical Office/Surgical Facility 12
164,190.15
Residential Parcel 5
135,694.34
Residential Parcel 7
557,028.39
Restaurant Parcel 1
206,924.58
Restaurant Parcel 13
251,908.18
Seeley Drive Parcel
0
Suites Hotel Parcel
753,475.39
Well Site Parcel
116,957.37
Property
$7,109,634.00
882/015610-0061
380889.09 a12/17/03
ATTACHMENT NO. 4
FORM OF GRANT DEED
[See Following Pages]
882/015610-0061
380889.09 a12/17/03
RECORDING REQUESTED BY,
MAIL TAX STATEMENTS TO
AND WHEN RECORDED MAIL TO:
CP DEVELOPMENT LA QUINTA, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
This document is exempt from payment of a recording
fee pursuant to Government Code Section 27383
GRANT DEED [Parcel/Property]
For valuable consideration, receipt of which is hereby acknowledged,
The LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic
(the "Agency"), acting to carry out the Redevelopment Plan ("Redevelopment Plan") for the
La Quinta Redevelopment Project No. 2 (the "Project Area"), under the Community
Redevelopment Law of California, hereby grants to CP DEVELOPMENT LA QUINTA, LLC, a
California limited liability company ("Developer"), the real property hereinafter referred to as
the "[Parcel/Property]," described in Exhibit A attached hereto and incorporated herein, subject
to the existing easements, restrictions and covenants of record described there.
1. Reservation of Mineral Rights. Agency excepts and reserves from the
conveyance herein described all interest of the Agency in oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than five hundred (500) feet below the surface,
together with the right to drill into, through, and to use and occupy all parts of the
[Parcel/Property] lying more than five hundred (500) feet below the surface thereof for any and
all purposes incidental to the exploration for and production of oil, gas, hydrocarbon substances
or minerals from said [Parcel/Property] or other lands, but without, however, any right to use
either the surface of the [Parcel/Property] or any portion thereof within five hundred (500) feet
of the surface for any purpose or purposes whatsoever, or to use the [Parcel/Property] in such a
manner as to create a disturbance to the use or enjoyment of the [Parcel/Property].
2. [Parcel/Property] Conveyance in Accordance With Redevelopment Plan,
Disposition and Development Agreement. The [Parcel/Property] is conveyed in accordance
with and subject to the Redevelopment Plan for the La Quinta Redevelopment Project No. 2
("Redevelopment Plan") which was approved and adopted by Ordinance No. 139, on May 16,
1989, of the City Council of the City of La Quinta, and a Disposition and Development
Agreement entered into between Agency and Developer dated , 2003 (the
"DDA"), a copy of which is on file with the Agency at its offices as a public record and which is
incorporated herein by reference. The DDA generally requires the Developer to construct and
operate on the [Parcel/Property] a [Project Description] (the "[Phase of
Development/Project]"), and other requirements as set forth therein. All terms used herein shall
have the same meaning as those used in the DDA.
3. Permitted Uses. The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the [Parcel/Property] or any part thereof, that upon
882/015610-0061
380889.09 a12/17/03
the date of this Grant Deed ([Parcel/Property]) ("Grant Deed") and during construction through
completion of development and thereafter, the Developer shall devote the [Parcel/Property] to
the uses specified in the Redevelopment Plan for the periods of time specified therein. All uses
conducted on the [Parcel/Property], including, without limitation, all activities undertaken by
the Developer pursuant to the DDA, shall conform to the DDA, the Redevelopment Plan, and all
applicable provisions of the City Municipal Code. The foregoing covenants shall run with the
land.
4. Restrictions on Transfer. The Developer further agrees that for the period
commencing upon the date of this Grant Deed and until the date Developer obtains a Release of
Construction Covenants for the [Phase of Development/final Phase of Development to be
constructed on the Property], no voluntary or involuntary successor in interest of the
Developer shall acquire any rights or powers under the DDA or this Grant Deed, nor shall the
Developer make any total or partial sale, transfer, conveyance, assignment, subdivision,
refinancing or lease of the whole or any part of the [Parcel/Property] or the [Phase of
Development/Project] thereon, except as permitted or approved by the Agency pursuant to
Section 703 of the DDA.
5. Binding on Successors. All of the terms, covenants and conditions of this Grant
Deed shall be binding upon the Developer and the permitted successors and assigns of the
Developer. Whenever the term "Developer" is used in this Grant Deed, such term shall include
any other successors and assigns as herein provided.
6. Nondiscrimination. The Developer herein covenants by and for itself, its heirs,
executors, administrators and assigns, and all persons claiming under or through them, that there
shall be no discrimination against or segregation of, any person or group of persons on account
of race, color, creed, religion, sex, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
Developer itself or any person claiming under or through Developer, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land
herein conveyed. The foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the
[Parcel/Property] on the basis of race, color, religion, sex, marital status, ancestry or national
origin of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
(a) In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land".
882/015610-0061
380889.09 al2/17/03 -2-
(b) In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons claiming under or through
him or her, and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person or
group of persons, on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish
or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use, or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the premises herein leased".
(c) In contracts relating to the disposition of the realty: "There shall be no
discrimination against or segregation of, any person, or group of persons on account of race,
color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the transferee himself or
herself or any person claiming under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the premises".
7. Agency's Right of Reverter and Power of Termination. The Agency has the
right, at its election, to reenter and take possession of the [Parcel/Property], with all
improvements thereon, and terminate and revest in the Agency the estate conveyed to the
Developer if after the closing and prior to the Agency's issuance of the Release of Construction
Covenants for the [Phase of Development/final Phase of Development to be constructed on
the Property], the Developer (or its successors in interest) shall:
a. fail to start construction of the [Phase of Development/Project] as
required by the DDA for a period of ninety (90) days after written notice thereof from the
Agency; or
b. abandon or substantially suspend construction of the [Phase of
Development/Project] required by the DDA and fail to resume construction within ninety (90)
days after written notice thereof from the Agency; or
C. contrary to the provisions of Section 703 of the DDA Transfer or
suffer any involuntary Transfer in violation of the DDA, and such Transfer is not rescinded
within sixty (60) days of notice thereof from the Agency.
For purposes of this Grant Deed, the term "construction" shall mean excavation
work or physical construction, but shall not include any grading work completed by Developer
on the [Parcel/Property] prior to the execution date hereof. Such right to reenter, terminate,and
revest shall be subject to and be limited by, shall not defeat, render invalid or limit, and shall be
subordinate to:
Any mortgage or deed of trust permitted by the DDA; or
882/015610-0061
380889.09 a12/17/03 _3
2. Any rights or interests provided in the DDA for the protection of
the holders of such mortgages or deeds of trust.
Upon the revesting in the Agency of title to the [Parcel/Property] as provided in this Section 7,
the Agency shall, pursuant to its responsibilities under state law, use its reasonable efforts to
resell the [Parcel/Property] as soon and in such manner as the Agency shall find feasible and
consistent with the objectives of such law and of the Redevelopment Plan, as it exists or may be
amended, to a qualified and responsible party or parties (as determined by the Agency) who will
assume the obligation of making or completing the [Phase of Development/Project], or such
improvements in their stead as shall be satisfactory to the Agency and in accordance with the
uses specified for such [Parcel/Property] or part thereof in the Redevelopment Plan. Upon such
resale of the [Parcel/Property], the net proceeds thereof after repayment of any mortgage or
deed of trust encumbering the [Parcel/Property] which is permitted by the DDA, shall be
applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the City,
all costs and expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the [Parcel/Property] or part thereof
(but less any income derived by the Agency from the [Parcel/Property] or part thereof in
connection with such management); all taxes, assessments and water or sewer charges with
respect to the [Parcel/Property] or part thereof which the Developer has not paid; any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
[Parcel/Property] or part thereof at the time or revesting of title thereto in the Agency, or to
discharge or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any expenditures
made or obligations incurred with respect to the making or completion of the improvements or
any part thereof on the [Parcel/Property], or part thereof; and any amounts otherwise owing the
Agency, and in the event additional proceeds are thereafter available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to the
amount equal to the sum of (a) the costs incurred by Developer for the acquisition and
development of the [Parcel/Property] and for the improvements existing on the
[Parcel/Property] at the time of the reentry and possession, less (b) any gains or income
withdrawn or made by the Developer from the [Parcel/Property] or the improvements thereon.
Any balance remaining after such reimbursements shall be retained by the Agency as its
property. The rights established in this Section 7 are not intended to be exclusive of any other
right, power or remedy, but each and every such right, power, and remedy shall be cumulative
and concurrent and shall be in addition to any other right, power and remedy authorized herein or
now or hereafter existing at law or in equity. These rights are to be interpreted in light of the fact
that the Agency will have conveyed the [Parcel/Property] to the Developer for redevelopment
purposes, particularly for development of the [Phase of Development/Project], and not for
speculation in undeveloped land.
8. Violations Do Not Impair Liens. No violation or breach of the covenants,
conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or
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render invalid or in any way impair the lien or charge of any mortgage or deed of trust or
security interest permitted by Section 703 of the DDA.
9. Covenants Run With Land. All covenants contained in this Grant Deed shall be
covenants running with the land. All of Developer's obligations hereunder, except as otherwise
provided hereunder, shall terminate and shall become null and void upon the expiration of the
effectiveness of the Redevelopment Plan. Every covenant contained in this Grant Deed against
discrimination contained in paragraph 6 of this Grant Deed shall remain in effect in perpetuity.
10. Covenants For Benefit of Agency. All covenants without regard to technical
classification or designation shall be binding for the benefit of the Agency, and such covenants
shall run in favor of the Agency for the entire period during which such covenants shall be in
force and effect, without regard to whether the Agency is or remains an owner of any land or
interest therein to which such covenants relate. The Agency, in the event of any breach of any
such covenants, shall have the right to exercise all the rights and remedies and to maintain any
actions at law or suits in equity or other proper proceedings to enforce the curing of such breach.
11. Revisions to Grant Deed. Both Agency, its successors and assigns, and
Developer and the successors and assigns of Developer in and to all or any part of the fee title to
the [Parcel/Property] shall have the right with the mutual consent of the parties to consent and
agree to changes in, or to eliminate in whole or in part, any of the covenants, easements or
restrictions contained in this Grant Deed without the consent of any tenant, lessee, easement
holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other person or
entity having any interest less than a fee in the [Parcel/Property]. However, Developer and
Agency are obligated to give written notice to and obtain the consent of any first mortgagee prior
to consent or agreement between the parties concerning such changes to this Grant Deed. The
covenants contained in this Grant Deed, without regard to technical classification, shall not
benefit or be enforceable by any owner of any other real property within or outside the Project
Area, or any person or entity having any interest in any other such realty. No amendment to the
Redevelopment Plan shall require the consent of the Developer, but no such amendment shall
diminish or restrict the Developer's rights or expand the Developer's obligations hereunder or
under the DDA without the Developer's consent.
AGENCY:
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Date: , 2003 By:
Executive Director
ATTEST:
Secretary of the Agency
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APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
Agency Counsel
Date:
DEVELOPER:
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
2003
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
Its:
Richard R. Oliphant
President
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STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
before me,
personally known to me (or 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.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
Notary Public
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF [Parcel/Property]
[TO BE INSERTED]
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ATTACHMENT NO.5
DISBURSEMENT SCHEDULE AND PROCEDURES
A. DISBURSEMENT OF AGENCY LOAN
[All disbursements subject to the Disbursement Procedures below]
Notwithstanding the timeframes listed below for the disbursements to Developer of
portions of the Agency Loan, no portion of the Agency Loan shall be disbursed to
Developer until the latest of the following dates: (i) the date Developer (a) completes the
installation of the foundation of the Suites Hotel, (b) completes the first pavement lift of
Seeley Drive, and (c) constructs all of the required curbs and gutters along Seeley Drive;
(ii) the date Developer acquires fee title to Residential Parcel 7 from the Agency; and (iii)
the date Ehline Development Co., a California corporation, purchases Residential Parcel
7 from Developer, and assumes all of Developer's right, title, and interest in and to this
Agreement with respect to the development of the Parcel 7 Residential Development on
Residential Parcel 7, thereby becoming the "Developer" with respect to the development
of the Parcel 7 Residential Development.
1. Architectural Structural Engineerings Component of the Agency Loan. Developer
shall be entitled to receive, at the time periods specified in this Section 1, portions
of the Agency Loan (referred to herein as the "Architectural and Structural
Engineering Component of the Agency Loan") for purposes of reimbursing
Developer for (i) architectural and structural engineering costs that have been
incurred by Developer in its preparation of plans and drawings for the Affordable
Housing Component ("Affordable Housing Component Plans and Drawings"),
and (ii) costs Developer incurs to cause the Affordable Housing Component Plans
and Drawings to be in compliance with Title 24 of the Uniform Building Code,
which has been incorporated by reference into the La Quinta Municipal Code.
a. As of the date that is sixty (60) days after the Effective Date, Developer
shall be entitled to a portion of the Architectural and Structural
Engineering Component of the Agency Loan in an amount up to, but not
exceeding, Fifty -Two Thousand Dollars ($52,000).
b. As of the date that is one hundred fifty (150) days after the Effective Date,
Developer shall be entitled to a portion of the Architectural and Structural
Engineering Component of the Agency Loan in an amount up to, but not
exceeding, Ninety -Eight Thousand Dollars ($98,000).
2. Civil/Soil Engineering Component of the Agency Loan. Developer shall be
entitled to receive, at the time periods specified in this Section 2, portions of the
Agency Loan (referred to herein as the Civil/Soil Engineering Component of the
Agency Loan") for purposes of reimbursing Developer for civil engineering and
soil engineering costs that have been incurred by Developer in its preparation of
Residential Parcel 7 for development of the Affordable Housing Component.
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a. As of the date that is sixty (60) days after the Effective Date, Developer
shall be entitled to a portion of the Civil/Soil Engineering Component of
the Agency Loan in an amount up to, but not exceeding, Seven Thousand
Dollars ($7,000).
b. As of the date that is ninety (90) days after the Effective Date, Developer
shall be entitled to a portion of the Civil/Soil Engineering Component of
the Agency Loan in an amount up to, but not exceeding, Twenty Thousand
Dollars ($20,000).
C. As of the date that is one hundred eighty (180) days after the Effective
Date, Developer shall be entitled to a portion of the Civil/Soil Engineering
Component of the Agency Loan in an amount up to, but not exceeding, ten
Thousand Dollars ($10,000).
d. As of the date that is two hundred ten (210) days after the Effective Date,
Developer shall be entitled to a portion of the Civil/Soil Engineering
Component of the Agency Loan in an amount up to, but not exceeding,
Eighty -Five Thousand Dollars ($85,000).
e. As of the date that is two hundred forty (240) days after the Effective
Date, Developer shall be entitled to a portion of the Civil/Soil Engineering
Component of the Agency Loan in an amount up to, but not exceeding,
Fifteen Thousand Dollars ($15,000).
3. Permits/Fees Component of the Agency Loan. Developer shall be entitled to
receive, at the time periods specified in this Section 3, portions of the Agency
Loan (referred to herein as the "Permits/Fees Component of the Agency Loan")
for purposes of reimbursing Developer for permit costs incurred, and building
permit fees paid, for development of the Affordable Housing Component.
a. As of the date that is one hundred eighty (180) days after the Effective
Date, Developer shall be entitled to a portion of the Permits/Fees
Component of the Agency Loan in an amount up to, but not exceeding,
One Hundred Fifty Thousand Dollars ($150,000).
b. As of the date that is two hundred ten (210) days after the Effective Date,
Developer shall be entitled to a portion of the Permits/Fees Component of
the Agency Loan in an amount up to, but not exceeding, One Hundred
Fifty Thousand Dollars ($150,000).
C. As of the date that is two hundred forty (240) days after the Effective
Date, Developer shall be entitled to a portion of the Permits/Fees
Component of the Agency Loan in an amount up to, but not exceeding,
One Hundred Fifty -Two Thousand Dollars ($152,000).
4. Acquisition Costs Component of the Agency Loan. As of the date that is three
hundred days after the Effective Date, Developer shall be entitled to a portion of
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the Agency Loan in an amount up to, but not exceeding, One Million Four
Hundred Seven Thousand Dollars ($1,407,000) for purposes of reimbursing
Developer for a portion of the costs Developer incurred in acquiring Residential
Parcel 7 from CP Development La Quinta, LLC, a California limited liability
company.
5. Construction Costs Component of the Agency Loan. As of the date that is three
hundred ninety (390) days after the Effective Date, Developer shall be entitled to
a portion of the Agency Loan, in an amount up to, but not exceeding, Three
Hundred Seventy -Four Thousand Dollars ($374,000) for purposes of reimbursing
Developer for the costs incurred in constructing the Affordable Housing
Component.
B. DISBURSEMENT PROCEDURES AND REQUIREMENTS
1. Conditions for Each Disbursement. Prior to each and every disbursement of a
portion of the Agency Loan, the following conditions shall be satisfied:
a. Promissory Note, Deed of Trust. Developer shall have executed the
Promissory Note and Deed of Trust, and shall have delivered to Agency
the Deed of Trust for recordation in the Official Records of the County of
Riverside.
b. Agency's Title Policy. Agency shall have accepted the Title Policy for
Residential Parcel 7, in accordance with Section 204 of the Agreement.
C. Evidence of Insurance. Developer shall have timely submitted to the
Agency's Executive Director, and obtained approval from same, of
Developer's evidence of insurance.
d. Declaration. Developer shall have signed the Declaration and delivered
same to Agency for recordation.
e. No Default. Developer shall not be in default of its obligations under the
Agreement or under the Declaration.
f. Land Use Entitlements. Developer shall have obtained all of the necessary
land use entitlements to construct the Parcel 7 Residential Development.
g. Application. Developer shall have delivered the Application attached
hereto as Exhibit "A", including supporting documentation showing the
work performed and the actual cost thereof to the Agency Executive
Director at least fifteen (15) business days prior to the requested
disbursement. The Application shall be completed and certified to be
accurate by Developer. The Application shall specifically identify the
nature of each expense, and shall identify the status of completion of such
construction.
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h. Approval of Application. The Executive Director shall review and
approve the Application and accompanying documents, and the Executive
Director shall determine that the work is reimbursable pursuant to this
Attachment No. 5 within ten (10) business days. The Executive Director
shall advise Developer of any issues within the ten (10) day period and
shall pay by check all uncontested amounts requested by the Application
within twenty (20) days of the receipt of the Application.
i. Lien Waivers. Agency shall have received unconditional releases of
mechanics' and materialmen's lien rights and stop notice rights, pursuant
to the California Civil Code, executed by all contractors, subcontractors,
and other persons rendering services or delivering materials covered by
the requests made in the Application.
j. Frequency. Agency shall not be obligated to make disbursements more
frequently than once per month.
k. Use of Disbursements. Developer shall use or apply all of the assistance
set forth in this Attachment No. 5 solely for reimbursement or payment of
the items described in the Application pursuant to which the disbursement
was made.
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EXHIBIT "A"
FORM OF APPLICATION FOR DISBURSEMENT
[SEE FOLLOWING PAGES]
882/015610-0061
380889.09 a]2/17/03
TO: La Quinta Redevelopment Agency ("Agency")
REQUEST NO.
DATE:
"DEVELOPER": CP DEVELOPMENT LA QUINTA, LLC
PROJECT: CENTER POINT DEVELOPMENT PROJECT: AFFORDABLE
HOUSING COMPONENT
Pursuant to a Disposition and Development Agreement dated as of
(the "Agreement") between Developer and Agency, Developer hereby requests that Agency
disburse $ of the financial assistance identified in Attachment No. 5 to the
Agreement. This advance is requested to pay for the expenses set forth below as described in
Attachment No. 5. Developer hereby certifies that the amounts shown on the attached schedule
and the accompanying invoices represent costs incurred for improvements identified which are
eligible for reimbursement at this time in accordance with the provisions of Attachment No. 5
and the Agreement.
SUBMITTED BY:
REVIEWED AND APPROVED BY:
Item of Cost
Date:
Agency Inspector
Date:
DISBURSEMENT SCHEDULE
Maximum
Reimbursement
Amount
Amount Previously Amount Requested
Disbursed this Disbursement
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ATTACHMENT NO.6
AFFORDABLE HOMES MIX
ParkPlace at Centre Pointe
Washington Miles
AFFORDABLE HOMES
One Story Single Family Homes
(Number of Units)
# of Bedrooms / Square Footage
# of Bathrooms 1430 1672 1778
3bd/21/2ba 7 7 4
Two Story "Cluster" Homes
(Number of Units)
# of Bedrooms /
# of Bathrooms
Square Footage
1270
1295
1400
1520
3bd/2ba
4
3bd/2%2ba
5
7
4bd/2ba
1
6
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ATTACHMENT NO.7
RESIDENTIAL PARCEL 7 SITE MAP
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ATTACHMENT NO.8
SCOPE OF DEVELOPMENT
I. GENERAL SUMMARY
This document outlines the general requirements for the improvements to be constructed
on the Property. Specific details are addressed in the Center Point Project Specific Plan SP2001-
055, as amended by Resolution No. 2003-35, which was duly adopted by the City Council on
June 3, 2003 ("Specific Plan"), and in the construction plans that will be prepared for the
development. The Property is identified as APN 604-04-12, APN 604-04-13, APN 604-04-23,
and APN 604-04-37, located southeast of the intersection of Miles Avenue and Washington
Street in the City of La Quinta, and is approximately 43.58 acres in size. The Specific Plan
provides for the development of a commercial development project that contains all of the
following: (i) a medical office/surgical facility ("Medical Office/Surgical Facility"), (ii) a
sanctuary villas development containing approximately 26 villas ("Sanctuary Villas
Development"), (iii) a mid -price suites hotel containing approximately 134 guest rooms ("Suites
Hotel"), (iv) a resort -style condominium/casitas project containing approximately 136 casitas
units ("Casitas Development"), (v) 2 sit-down restaurants (the "Restaurants"), and (vi) two single
family residential developments containing, collectively, approximately 67 units ("Single Family
Developments"), all as further described below.
II. PROJECT COMPONENTS
A. Medical Office/Surgical Facility
The Medical Office/Surgical Facility, which will be constructed on approximately 9.2
acres, will contain approximately 120,000 square feet, in the aggregate, and house a medical
office and surgical center, which will provide medical screening, testing, diagnosis, and
treatment, in several medical disciplines, including the areas of neurosurgery, orthopedic and
vascular care, and pain management. The facility will provide individual offices for physicians
associated with the facility, as well as areas for patient treatment and diagnosis, approximately 5
operating theaters, and a recovery room containing beds for short term stays. The facility will
not include emergency room facilities, and all patient care will be on a pre -arranged basis. The
maximum height of the Medical Office/Surgical Facility buildings will be two stories.
B. Sanctuary Villas Development
The Sanctuary Villas Development, which will be constructed on approximately 5.5
acres, will feature a spa and approximately 26 villas, each containing 1200 square feet or more.
Each of the buildings in the Sanctuary Villas Development will be one story in height, with the
units constructed in a configuration to maximize privacy and views. The Wellness Center,
located in the center of the Sanctuary Villas Development, will be two stories in height. Villas
within the Sanctuary Villas Development will be individually sold, however, individual owners
will be encouraged to rent their units to transient guests when not being used by the owners. All
such transient occupancies will be subject to the City's transient occupancy tax ordinance.
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C. Suites Hotel
The Suites Hotel, which will be constructed on approximately 3.8 acres, will consist of a
three-story, "extended stay" hotel having approximately 134 units. The Suites Hotel will be
branded as a Homewood Suites by Hilton, or another national brand which has a centralized
reservation system, such as a Hawthorne Suites or a Staybridge Suites Hotel by Holiday Inn, and
will offer both parlor and one bedroom suites, all of which will include fully equipped kitchens.
The Suites Hotel will also have a public lobby area, a pool and an exercise facility. The Suites
Hotel will be one of the components of the Project that will be constructed in the first phase of
development of the overall Project. The Suites Hotel will have approximately 132 parking
spaces for hotel guests, and the parking area landscaping will provide shading.
D. Casitas Development
The Casitas Development, which will be constructed on approximately 7.6 acres, will
consist of the construction of approximately 136 condominiums, which will be built in three
phases and located adjacent to the Suites Hotel. The buildings within the Casitas Development
will be one and two stories in height. Each of the condominium units is expected to contain two
bedrooms. The Casitas Development will also contain pool areas for the use of condominium
owners and guests. Each condominium unit will be individually sold, fully furnished, to a
private owner. All owners will be encouraged to make their unit available for transient rentals
when not in use, and all such transient uses will be subject to the City's transient occupancy tax
ordinance. The Casitas Development is expected to be constructed in three phases, with the first
phase including approximately 40 units. This first phase will be constructed concurrently with
the Suites Hotel, as part of the first phase of the overall Project. The Casitas Development will
have approximately 210 parking spaces, and the parking area landscaping will provide shading in
accordance with the Specific Plan.
E. Restaurants (Parcel 1 Restaurant; Parcel 13 Restaurant)
The overall Project includes two Restaurant pads, with one pad on approximately .98
acres, and the other pad on approximately 1.22 acres. One of the pads will be used for the
construction of a "dinner house" Restaurant to provide a quality dining experience for owners
and guests within the Project. The second Restaurant will be a full -service, sit-down style
Restaurant offering, at a minimum, breakfast and lunch. The individual design and construction
of the Restaurants will be determined when the operators are identified. Neither Restaurant will
be of the "fast food" or "quick serve" type, and neither will be permitted to have a drive through.
F. Single Family Developments
The Project will contain two Single Family Developments. The first of the Single Family
Developments, which is referred to in the Agreement as the "Parcel 5 Residential Development,"
will be constructed on approximately 2.2 acres, and will consist of 13 one and two story "cluster
courtyard villas." The second of the Single Family Developments, which is referred to in the
Agreement as the "Parcel 7 Residential Development," will be constructed on approximately 8.9
acres, and will consist of 54 single-family homes, with 25 one-story single-family homes on the
perimeter of the development, and 29 courtyard single family homes in the interior of the
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development. Forty of the homes in the Parcel 7 Residential Development will be restricted for
sale to moderate -income families at an affordable housing cost. The residential units within the
Single Family Developments will range in size from 1250 square feet to 2800 square feet. All
units will have two car garages with the exception of approximately 6 of the cluster courtyard
villas, each of which will have single car garages. Each of the Single Family Developments will
include common area with pools, barbeque areas and passive play areas.
III. DEVELOPMENT CONCEPT
The Property shall be improved by the Developer in accordance with the provisions of
this Agreement, the Specific Plan, and all applicable codes, ordinances, and statutes including
requirements and procedures set forth in the La Quinta Municipal Code, and the Redevelopment
Plan regulations adopted in conjunction with or subsequent to execution of this Agreement.
IV. ON -SITE DEVELOPMENT AND IMPROVEMENTS
Developer shall prepare such plans, reports, and studies, and obtain such permits and
approvals as required, including, but not limited to, grading plans for construction of the Project.
Plans shall be prepared by a licensed civil engineer in good standing and subject to the approval
of the Director of Public Works.
Developer shall grant and permit all necessary and appropriate utility easements and
rights for the development of the Project, including but not limited to sanitary sewers, storm
drains, water, electrical power, telecommunications, natural gas, cable television, etc.
V. LANDSCAPING
Developer shall be responsible to fully landscape the Project in accordance with the
Specific Plan and landscape plans approved by the City. Developer shall also be responsible for
the maintenance obligations set forth in the Easement Agreement that pertain to Landscape
Parcel C, Landscape Parcel E, Landscape Parcel H, Landscape Parcel I, and the Parkway Areas.
VI. PUBLIC IMPROVEMENTS
Developer shall be responsible for the construction of Seeley Drive, the interim street
through the Project, and all other public improvements that may be identified per the Specific
Plan including, but not limited to, all required internal utilities. All such construction shall be
done to City specification. Additionally, Developer shall be responsible for obtaining and
delivering to the City such bonds or other improvement security as City may require in
accordance with applicable law, including but not limited to payment and performance bonds.
Upon Developer's completion of Seeley Drive, Developer shall dedicate the same to the City for
use as a public street.
VII. DEVELOPMENT STANDARDS
All development on the Property shall conform to the development standards set forth in the
Specific Plan, and other applicable City codes and development standards.
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ATTACHMENT NO.9
PROMISSORY NOTE
[See Following Pages]
812/015610-0061
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NOTE
, 2003 ("Note Date") $2,520,000 ("Loan Amount")
FOR VALUE RECEIVED, the undersigned (herein, the "Maker") hereby promises to
pay to the order of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic ("Holder" or "Agency"), at a place designated by Holder, the principal sum of TWO
MILLION FIVE HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000) ("Loan
Amount"), plus accrued interest, or such lesser amount which shall from time to time be owing
hereunder pursuant to the terms hereof. The principal sum hereof shall be disbursed pursuant to
the terms and conditions set forth herein and in that certain Disposition and Development
Agreement by and among Maker and Holder, dated ("DDA"), pertaining
to Maker's redevelopment of certain real property defined in the DDA as the "Property".
Reference is also made to the following additional agreements and documents, of even
date herewith, involving Maker and Holder and/or pertaining to the Property:
(i) Deed of Trust with Assignment of Rents and Rider Attached Hereto by and
between Maker as borrower, Holder as beneficiary, and First American Title
Insurance Company as Trustee, and recorded in the Office of the Riverside
County Recorder ("Agency Deed of Trust"). The Agency Deed of Trust partially
secures repayment of this Note.
(ii) Declaration of Covenants, Conditions, and Restrictions for Property, by and
between Maker and Holder, for the benefit of Holder, and recorded in the Office
of the Riverside County Recorder ("Declaration").
The DDA, Agency Deed of Trust, and Declaration are referred to herein collectively as
the "Agency Agreements". The Agency Agreements are incorporated herein as though fully set
forth. Except as otherwise provided herein, the defined terms used in this Note shall have the
same meaning as set forth in the DDA.
1. Purpose of Loan. The loan evidenced by this Note is a loan for the purpose of assisting
Maker with a portion of Maker's Property acquisition costs and for a portion of Maker's costs for
constructing the Project on the Property in accordance with the DDA.
2. Principal Amount. The principal amount of this loan shall be TWO MILLION FIVE
HUNDRED TWENTY THOUSAND DOLLARS ($2,520,000) ("Loan Amount"). Simple
interest shall accrue on the outstanding principal amount at seven percent (7%) per annum,
compounded annually. Interest shall accrue as set forth in Section 4 in the event of a Maker
default.
3. Disbursement of Agency Loan.
3.1 The Agency Loan shall be disbursed in accordance with the Disbursement
Schedule attached to the DDA as Attachment No. 5.
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4. Term of Note, Repayment. Repayment of the Loan Amount, as adjusted and redefined as
the "Adjusted Loan Amount" pursuant to this Section 4, shall be through monthly installment
repayment amounts.
4.1 Subject to the provisions of (a) Section 5 herein which provide for acceleration of
the then outstanding principal and accrued interest and immediate payment thereof in the event
of a default by Maker and (b) Sections 4.2 through 4.4 below, which provide for the cancellation
of this Note in the event certain specified conditions are met:
(A) Maker shall not be required to make any payments of principal or interest
on this Note until the earlier of, (i) such time as Maker has sold all of the Affordable Homes or
(ii) such time as Maker has sold all of the homes in the Parcel 7 Residential Development (the
first to occur is hereinafter referred to as the "Final Sale Date"). Within thirty (30) days after the
Final Sale Date (the "Maker Repayment Date"), any outstanding balance remaining on the Note
shall be due and payable to Holder in accordance with paragraph (B) below.
(B) Maker agrees that interest shall accrue on any amounts of the Agency
Loan that have been disbursed, and not transferred to Eligible Buyers in the form of Developer
Credits, prior to the Maker Repayment Date, and that as a result thereof, the outstanding
principal and accrued interest to date due Holder on the Maker Repayment Date shall be adjusted
to reflect said accrual ("Adjusted Loan Amount").
4.2 Notwithstanding the foregoing, this Note shall be deemed paid in full when
Maker has repaid the Holder an amount equal to the Adjusted Loan Amount, as set forth in this
Note.
4.3 Notwithstanding anything to the contrary herein, (i) the Loan Amount shall be
automatically reduced by the amount of each Developer Credit provided by Developer to an
Eligible Buyer, (ii) the Deed of Trust shall be reconveyed with respect to each Affordable Home
that has been sold and conveyed to an Eligible Buyer, and (iii) at such time when Developer has
provided Developer Credits in a cumulative amount that equals or exceeds the Loan Amount,
this Note shall be cancelled, as evidenced by Holder's return to Maker of the original of this
Note marked "cancelled," and the Deed of Trust shall be immediately reconveyed, all as
described more fully in Sections 4.2 and 4.3 of the DDA.
4.4 Maker shall have the right to prepay all or any portion of this Note at any time
without penalty, and upon such repayment the Agency Deed of Trust shall be reconveyed.
Prepayment shall not affect the Declaration or the term of the Declaration.
4.5 Any cash payments made by Maker in payment of this Note shall be applied in
the following order: (i) first to the interest then accrued and due on the unpaid principal balance
under this Note, (ii) second to reduction of the principal balance of this Note.
5. Default; Acceleration, Cross -Default. In the event:
5.1 Maker fails to timely make a payment required by this Note within ten (10) days
following the due date of any payment due hereunder; or
882/015610-0061
380889.09 a12/17/03 -3-
5.1 Maker fails to timely make any other payment due hereunder within ten (10) days
after notice thereof from Holder; or
5.2 Maker is in material default of any of the covenants, terms, or provisions of this
Note, or any of the Agency Agreements, including, without limitation, Maker's sale of an
Affordable Home to a buyer that does not qualify as an Eligible Buyer, and Maker fails to timely
cure such default under the terms of the applicable agreement, it being understood and agreed by
Maker that a default of this Note, or of any of the Agency Agreements (beyond any applicable
cure period) shall be a default of all of the foregoing listed documents;
then Maker shall be in default of this Note, and all portions of the Loan Amount that have been
disbursed to Maker and all accrued interest thereon shall become immediately due and payable.
The rate of interest applicable to periods of default for the defaults set forth in this Section 5 shall
be calculated at the lesser of ten percent (10%) per annum or the maximum legal rate, and shall
accrue as of the date such payment was originally due.
6. Collection Costs; Attorneys' Fees. If, because of any event of default under this Note or
any of the Agency Agreements, any attorney is engaged by Holder to enforce or defend any
provision of this instrument, whether or not suit is filed hereon, then Maker shall pay upon
demand reasonable attorneys' fees, expert witness fees and all costs so incurred by Holder
together with interest thereon until paid at the applicable rate of interest payable hereunder, as if
such fees and costs had been added to the principal owing hereunder.
7. Waivers by Maker. Maker and all endorsers, guarantors and persons liable or to become
liable on this Note waive presentment, protest and demand, notice of protest, demand and
dishonor and nonpayment of this Note and any and all other notices or matters of a like nature,
and consent to any and all renewals and extensions near the time of payment hereof and agree
further that at any time and from time to time without notice, the terms of payment herein may
be modified or the security described in any documents securing this Note released in whole or
in part, or increased, changed or exchanged by agreement between Holder and any owner of the
premises affected by said documents securing this Note, without in any way affecting the
liability of any party to this Note or any persons liable or to become liable with respect to any
indebtedness evidenced hereby.
8. Severability. The unenforceability or invalidity of any provision or provisions of this
Note as to any persons or circumstances shall not render that provision or those provisions
unenforceable or invalid as to any other provisions or circumstances, and all provisions hereof, in
all other respects, shall remain valid and enforceable.
9. Modifications. Neither this Note nor any term hereof may be waived, amended,
discharged, modified, changed or terminated orally; nor shall any waiver of any provision hereof
be effective except by an instrument in writing signed by Maker and Holder. No delay or
omission on the part of Holder in exercising any right hereunder shall operate as a waiver of such
right or of any other right under this Note.
10. No Waiver by Holder. No waiver of any breach, default or failure of condition under the
terms of this Note shall be implied from any failure of the Holder of this Note to take, or any
882/015610-0061
380889.09 a12/17/03 -4-
delay be implied from any failure by the Holder in taking action with respect to such breach,
default or failure from any prior waiver of any similar or unrelated breach, default or failure.
11. Usm. Notwithstanding any provision in this Note, the total liability for payment in the
nature of interest shall not exceed the limit imposed by applicable laws of the State of California.
12. Nonassi n�Z ability. Maker may only Transfer (as that term is defined in the DDA) this
Note in accordance with provisions and restrictions pertaining to a transfer of the DDA as set
forth in the DDA. Holder may freely Transfer Holder's interest in this Note in any manner, at
Holder's sole discretion; provided, that at the time of such Transfer Holder also transfers the
DDA to such transferee.
13. Governing Law. This Note has been executed and delivered by Maker in the State of
California and is to be governed and construed in accordance with the laws thereof.
14. Time of Essence. Time is of the essence in the performance of the obligations and
provisions set forth in this Note.
IN WITNESS WHEREOF, Maker has executed this Note as of the Note Date.
"MAKER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
882/015610-0061
380889.09 a12/17103 �5'
ATTACHMENT 10
DEED OF TRUST
[See Following Pages]
Recording Requested By And
When Recorded Return to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDER'S USE
EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND RIDER ATTACHED HERETO
NOTE: RIDER ATTACHED TO THIS DEED OF TRUST CONTAINING TERMS INCLUDING SECURITY
AGREEMENT AND FIXTURE FILING.
This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER ATTACHED HERETO ("Deed of
Trust"), is made , between CP DEVELOPMENT LA QUINTA, LLC, a
California limited liability company, herein called TRUSTOR, whose address is First
American Title Insurance Company, a California corporation, herein called TRUSTEE, and LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic, herein called BENEFICIARY.
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, Trustor's estate, dated on or about the
date hereof, in that property in the City of La Quinta, County of Riverside, State of California, described in Exhibit
"A" (the "Property"),
together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter
given to and conferred upon Beneficiary to collect and apply such rents, issues and profits for the purpose of
securing (1) payment of the sum of TWO MILLION FIVE HUNDRED TWENTY THOUSAND DOLLARS
($2,520,000), with interest thereon according to the terms of a promissory note or notes of even date herewith made
by Trustor, payable to order of Beneficiary, and extensions or renewals thereof; (2) the performance of each
agreement of Trustor incorporated by reference or contained herein; and (3) payment of additional sums and interest
thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a promissory
note or notes reciting that they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the Property above described, Trustor expressly
makes each and all of the agreements, and adopts and agrees to perform and be bound by each and all of the terms
and provisions set forth in subdivision A, and it is mutually agreed that each and all of the terms and provisions set
forth in subdivision B of the fictitious deed of trust recorded in Orange County August 17, 1964, and in all other
counties August 18, 1964, in the book and at the page of Official Records in the office of the county recorder of the
county where said property is located, noted below opposite the name of such county, namely:
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
COUNTY
BOOK
PAGE
Alameda
1288
556
Kings
858
713
Placer
1028
379
Sierra
38
187
Alpine
3
130-31
Lake
437
110
Plumas
166
1307
Siskiyou
506
762
Amador
133
438
Lassen
192
367
Riverside
3778
347
Solano
1287
621
Butte
1330
513
Los Angeles
T-3878
874
Sacramento
5039
124
Sonoma
2067
427
Calaveras
185
338
Madera
911
136
San Benito
300
405
Stanislaus
1970
56
Colusa
323
391
Marin
1849
122
San Bernardino
6213
768
Sutter
655
585
Contra Costa
4684
1
Mariposa
90
453
San Francisco
A-804
596
Tehama
457
183
Del Norte
101
549
Mendocino
667
99
San Joaquin
2855
283
Trinity
108
595
El Dorado
704
635
Merced
1660
753
San Luis Obispo
1311
137
Tulare
2530
108
Fresno
5052
623
Modoc
191
93
San Mateo
4778
175
Tuolumne
177
160
Glenn
469
76
Mono
69
302
Santa Barbara
2065
881
Ventura
2607
237
Humboldt
801
83
Monterey
357
239
Santa Clara
6626
664
Yolo
769
16
Imperial
1189
701
Napa
704
742
Santa Cruz
1638
607
Yuba
398
693
Inyo
165
672
Nevada
363
94
Shasta
800
633
Kern
3756
690
Orange
7182
18
San Diego
SERIES
5 Book 1964, Page 149774
882/015610-0061 7
380889.09 al2/17/03
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B (identical in all counties, and printed on pages 3 and 4 hereof) are
by the within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as
if set forth at length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge therefor does not exceed the maximum allowed by law. Notwithstanding anything herein to the
contrary, this Deed of Trust shall be reconveyed with respect to each lot comprising the Property that has been
developed with a single family home and sold by Trustor to an individual purchaser. Beneficiary agrees to execute
the document(s) necessary to effect any such partial reconveyance.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to
him at his address hereinbefore set forth.
SEE RIDER ATTACHED TO THIS DEED OF TRUST
STATE OF CALIFORNIA
COUNTY OF
Signature of Trustor
} CP DEVELOPMENT LA QUINTA, LLC
} a California limited liability company
On
before me, ,
personally appeared , personally
known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose
names(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 signatures(s) on the instrument the
person(s) or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Its:
Richard R. Oliphant
President
882/015610-0061 8
380889.09 a12/17/03
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing
Deed of Trust and incorporated by reference in said Deed of Trust as being a part thereof as if set forth at length therein.
A. To protect the security of this Deed ofTrust, Trustor agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore
promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all
claims for labor performed and materials famished therefor, to comply with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon said property in violation
of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order
as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not are or waive any default or notice of default hereunder or invalidate any ad done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such
action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed.
4) To pay: at least ten (10) days before delinquency all taxes and assessments affecting said property, including assessments
on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be
prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary of Trustee, but without obligation so to
do and without notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same is such
manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said
property for such purposes; appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the judgment of either appears to be prior
or superior hereto; arid, in exercising any such powers, pay necessary expenses, employ counsel and pay his reasonable fees.
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from the date of
expenditure at the amount allowed by law in effect at the date hereof, and ID pay for any statement provided for bylaw in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when
said statement is demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same
effect as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so seared or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting
any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of
its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters or facts
shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the person or persons legally
entitled thereto".
5) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the
continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor the right, prior to any default by
Trustor in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect and retain such rents, issues
and profits as they become due and payable. Upon any such default (beyond any applicable cure period, and during the continuance of such
default), Beneficiary may at any time without notice, either in person, by agent, or be a receiver to be appointed by a court, and without regard to
the adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own
name sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses
of operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary may
determine. The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the application thereof as
aforesaid, shall not cure or waive any default ornotice of default hereunder or invalidate any act done pursuant to such notice.
6) That upon default by Trustor in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default
and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed
for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of sale
having been given as then required by law, Trustee, without demand on Trustor, shall sell said property at the time and place fixed by it in said
notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in
lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed
by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so sold, but without any covenant or
warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person,
including Trustor, Trustee, or Beneficiary as hereinafter defined may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale,
Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the
amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the person or persons legally
entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and
duly acknowledged and recorded in the office of the recorder of the courty or counties where said property is situated shall be conclusive proof of
proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title,
estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and
page where this Deed is recorded and the name and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators,
executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby,
whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine gender includes the feminine and/or
neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in which
Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust.
Said note or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby
requested and directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above
mentioned, an all other evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust,
and to reconvey, without warranty, to the parties designated by the terns of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for cancellation before
reconveyance will be made.
882/015610-0061
380889.09 a12/17/03
LEGAL DESCRIPTION OF PROPERTY
[The legal description of the Property will be inserted prior to recordation of this
Deed of Trust. The term "Property" refers to that certain parcel of real property
identified as "Residential Parcel 7" in that certain Disposition and Development
Agreement executed by and between Trustor and Beneficiary on or about
.J
RIDER TO SUBORDINATED DEED OF TRUST WITH ASSIGNMENT OF RENTS
THIS RIDER TO DEED OF TRUST WITH ASSIGNMENT OF RENTS ("Rider") is
executed this day of 9 , by CP
DEVELOPMENT LA QUINTA, LLC, a California limited liability company, herein "Trustor,"
in favor of the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic, herein "Beneficiary," the same parties to that certain form Deed of Trust With
Assignment of Rents, of even date hereto, to which this Rider is attached. This Rider is made a
part of and is incorporated into said Deed of Trust. This Rider shall supersede any conflicting
term or provision of the form Deed of Trust to which it is attached.
Reference is made to (i) that certain Note by and between Trustor and Beneficiary, dated
on or about the date set forth above, the repayment of which by Trustor is secured by this Deed
of Trust ("Agency Note"), and (ii) to the Agency Agreements which are described in the Agency
Note.
The parties hereto agree:
1. Pro e . The estate subject to this Deed of Trust is Trustor's fee estate in the real
property legally described in the foregoing Deed of Trust to which this Rider is attached (the
"Property").
2. Obligations Secured. Trustor makes this grant and assignment for the purpose of
securing the following obligations ("Secured Obligations"):
a. Payment to Beneficiary of all indebtedness at any time owing under the
terms of the Note;
b. Payment and performance of all obligations of Trustor under this Deed of
Trust;
C. Payment and performance of all obligations of Trustor under the Agency
Agreements.
d. Payment and performance of all future advances and other obligations of
Trustor or any other person, firm, or entity with the approval of Trustor,
may agree to pay and/or perform (whether as principal, surety or
guarantor) for the benefit of Beneficiary, when the obligation is evidenced
by a writing which recites that it is secured by this Deed of Trust; and
e. All modifications, extensions and renewals of any of the obligations
secured hereby, however evidenced.
3. Obligations. The term "obligations" is used herein in its broadest and most
comprehensive sense and shall be deemed to include, without limitation, all interest and charges,
prepayment charges, late charges and fees at any time accruing or assessed on any of the Secured
Obligations.
4. Subordination. Beneficiary agrees to subordinate this Deed of Trust to Trustor's
construction loan and subsequent permanent and/or construction loans, provided that (i) the
maximum cumulative principal amount of the construction and/or permanent loan shall not
exceed ninety percent (90%) of the lender's appraised value of the Property upon completion of
the affordable housing project ("Project") described in the Agency Agreements, which amount
shall be verified in writing to Beneficiary's Executive Director's reasonable satisfaction; (ii) the
loan(s) shall obligate Trustor to expend loan proceeds for no other purpose than the Project or
refinance of a loan secured by the Project that was previously subordinated to by the Beneficiary;
and (iii) the loan(s) shall be entered into in connection with execution by Agency of a
subordination agreement that has been approved by Beneficiary's legal counsel (which form
Beneficiary agrees to promptly execute and deliver upon Trustor's request therefor)
("Subordination Agreement").
Beneficiary agrees that the lender may, during the period of default, proceed with its
rights and remedies against Trustor as a result of such default, subject only to the cure rights
provided in the Subordination Agreement. In agreeing to provide the subordination referred to in
the preceding sentence, Beneficiary hereby incorporates the finding required to be made in
accordance with Health and Safety Code Section 33334.14.
5. Incorporation. All terms of the Agency Note, Agency Agreements, and the
Secured Obligations are incorporated herein by this reference. All persons who may have or
acquire an interest in the Property shall be deemed to have notice of the terms of all of the
foregoing documents.
6. Mortgagee -in -Possession. Neither the assignment of rents set forth in the Deed of
Trust nor the exercise by Beneficiary of any of its rights or remedies hereunder shall be deemed
to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with respect
to the Property, unless Beneficiary, in person or by agent, assumes actual possession thereof.
Nor shall appointment of a receiver for the Property by any court at the request of Beneficiary or
by agreement with Trustor, or the entering into possession of the Property by such receiver, be
deemed to make Beneficiary a "mortgagee -in -possession" or otherwise liable in any manner with
respect to the Property.
7. No Cure. In the event Beneficiary collects and receives any rents under the Deed
of Trust upon any default hereof, such collection or receipt shall in no way constitute a curing of
the default, except if and to the extent the same are sufficient to cure all monetary defaults and
no other defaults then exist.
8. Possession Upon Default. Upon the occurrence of and during the continuation of
a default, Beneficiary, after having given notice and the applicable cure periods having expired
with the default having not been cured (hereinafter, a "default"), may, at its option, without any
action on its part being required and without in any way waiving such default, take possession of
the Property in accordance with applicable law and have, hold, manage, lease and operate the
same, on such terms and for such period of time as Beneficiary may deem proper, and may
collect and receive all rents and profits, with full power to make, from time to time, all
commercially reasonable alterations, renovations, repairs or replacements thereto as may seem
proper to Beneficiary, and to apply such rents and profits to the payment of (a) the cost of all
882/015610-0061 2
380889.09 a12/17/03
such alterations, renovations, repairs and replacements, and all costs and expenses incident to
taking and retaining possession of the Property, and the management and operation thereof, and
keeping the same properly insured; (b) all taxes, charges, claims, assessments, and any other
liens which may be prior in lien or payment of the Note, and premiums for insurance, with
interest on all such items; and (c) the indebtedness secured hereby, together with all costs and
attorney's fees, in such order or priority as to any of such items as Beneficiary in its sole
discretion may determine, any statute, law, custom or use to the contrary notwithstanding. Any
amounts received by Beneficiary or its agents in the performance of any acts prohibited by the
terms of this assignment, including, but not limited to, any amounts received in connection with
any cancellation, modification or amendment of any lease prohibited by the terms of this
assignment and any rents and profits received by Trustor after the occurrence of a default shall
be held by Trustor as trustee for Beneficiary and all such amounts shall be accounted for to
Beneficiary and shall not be commingled with other funds of the Trustor. Any person receiving
any portion of such trust funds shall receive the same in trust for Beneficiary as if such person
had actual or constructive notice that such funds were impressed with a trust in accordance
therewith.
9. Receiver. In addition to any and all other remedies of Beneficiary set forth under
this Deed of Trust or permitted at law or in equity, if a default shall have occurred and not have
been cured within any applicable cure period, Beneficiary, to the extent permitted by law and
without regard to the value, adequacy or occupancy of the security for the Note and other sums
secured hereby, shall be entitled as a matter of right if it so elects to the appointment of a receiver
to enter upon and take possession of the Property and to collect all rents and profits and apply the
same as the court may direct, and such receiver may be appointed by any court of competent
jurisdiction by ex parte application and without notice, notice of hearing being hereby expressly
waived. The expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the power herein contained shall be secured by this Deed of
Trust.
10. Notice to Beneficiary. Notices to Beneficiary shall be sent to Beneficiary
addressed to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92263
Attn: Executive Director
[SIGNATURE ON NEXT PAGE]
882/015610-0061 3
380889.09 al2/17/03
IN WITNESS WHEREOF, Trustor has executed this Rider on the date of Trustor's
acknowledgment herein below, to be effective for all purposes as of the day and year first set
forth above.
TRUSTOR:
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
882/015610-0061 4
380889.09 a12/17/03
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, , personally
appeared , personally known to me (or
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.
Witness my hand and official seal.
Notary Public
[SEAL]
'82/015610-0061
380889.09 a12/17/03
ATTACHMENT NO. 11
EARLY ENTRY AGREEMENT
[See Following Pages]
882/015610-0061
380889.09 a12/17/03
EARLY ENTRY AGREEMENT
This Early Entry Agreement ("Agreement") is entered into as of , 2003, by
and among the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency") and CP DEVELOPMENT LA QUINTA, LLC., a California limited liability
company ("Developer"), with reference to the following facts:
RECITALS
A. Agency is the present owner of that certain property located in La Quinta,
California, described on Exhibit "A" hereto (herein "Property").
B. Agency has executed that certain Disposition and Development Agreement with
Developer ("DDA"), pursuant to which Agency shall sell to Developer the Property for
Developer's development thereon of a commercial project consisting of mid -price suites hotel,
two restaurants, a sanctuary villas development, a condominium/casitas development, a medical
facility, and two single-family residential developments (collectively, the "Project").
C. Developer has requested the right to enter onto and about the Property to perform
certain work specified herein, and Agency is willing to allow such entry on the terms and
conditions hereinafter specified.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein
and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged
by the parties hereto, the parties covenant and agree as follows:
1. Grant of License. Agency hereby grants to Developer and its employees, agents,
consultants, and contractors ("Related Parties") a license for the term set forth in Paragraph 3
("License") to enter upon the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday
through Friday, for the purposes of (i) grading on all or any portion of the Property, (ii) installing
wet and dry utilities on all or any portion of the Property, (iii) installing signs on the Property,
provided such installation is in accordance with Section 9.160.070 of the City of La Quinta
Municipal Code (Permitted Semipermanent Signs), and (iv) paving Seeley Drive, an interior
street to be developed by Developer and subsequently conveyed to the City of La Quinta
("City") for City's use thereafter as a public street (collectively, the "Permitted Work") in
connection with the proposed development of the Project. Notwithstanding the above, at least
forty-eight (48) hours prior to any of the Related Parties' first entry onto the Property to
commence the Permitted Work, Developer shall notify Agency of its intention of the same, and
shall thereafter provide such notice before again entering the Property if there is an interruption
of such initial entry for a period of even (7) consecutive days (excluding interruptions for events
of force majeure). Said notice shall be provided by facsimile, addressed to the person listed in
Section 8.8 hereof at the number provided therein. Agency may reject any proposed entry by
providing telephonic notification to Developer to the person listed in Section 8.8 hereof, at the
number provided therein, at any time prior to the time of the proposed entry.
Agency has full right, title and authority to grant Developer the License for the Permitted
Work, and no third party permission or consent is needed in connection therewith. Such License
882/015610-0061
380889.09 a12/17/03 -2-
shall be non -revocable for the Term defined in Paragraph 3 below, except as otherwise set forth
herein. Agency specifically agrees that Developer shall have access to and be entitled to perform
the Permitted Work on all portions of the Property, provided, however, that neither Developer
nor any of the Related Parties shall interfere with any other real or personal property, or enter
upon any other real property, without first obtaining the written consent of the owner(s) of such
other real or personal property.
2. Agency's Authority to Revoke. Agency may revoke this License upon two (2)
days written notice to Developer delivered in accordance with Subparagraph 8.8 below in the
event: (i) in the reasonable judgment of Agency, such revocation is necessary to protect the
public health, safety, or welfare pursuant to the exercise of Agency's police powers; or (ii)
Developer is in violation of the terms of this Agreement or any applicable law, statute,
ordinance, rule, or regulation pertaining to the Permitted Work or Developer's or the Related
Parties' entry upon the Property pursuant to this Agreement, and Developer has failed to cure
such violation within two (2) days following Developer's receipt of notice of such violation from
Agency.
3. Term. Unless earlier revoked or terminated pursuant to the provisions of this
Agreement, the term of the License shall commence on full execution hereof and shall terminate
on the earlier of (i) as to each portion of the Property, the date Developer acquires such portion
from Agency, or (ii) one hundred eighty-five (185) days from the date hereof.
4. Repair and Restoration of Property. Developer shall repair any damage it causes
to the Property in the course of performing the Permitted Work pursuant hereto and shall, except
for the actual Permitted Work allowed hereby, restore the Property to the condition existing prior
to Developer's or Related Parties' entry onto the Property, unless this requirement is waived by
the Agency Executive Director or the Community Development Director in his or her sole and
absolute discretion.
5. Compliance with Laws. Developer shall obtain, at is sole cost and expense, all
governmental permits and authorizations required by any governmental agencies for the
Permitted Work. Developer shall comply with, and shall cause all of its Related Parties to
comply with, all applicable governmental laws, rules, regulations and requirements governing
the Permitted Work. Prior to Developer's or any of the Related Parties' entry onto the Property
to perform any of the Permitted Work, Developer shall have prepared, obtained approval from
the City thereof, and implemented, a dust control program.
6. Indemnity. Developer shall protect, defend, indemnify and hold harmless Agency
and City and their respective officers, officials, members, employees, agents, and representatives
(any of the foregoing shall be known individually as "Indemnitee" and collectively as
"Indemnitees"), and each of them, jointly and severally, against and from any and all claims,
demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity, of
every kind or nature whatsoever, including attorneys' fees and expert witness fees (hereinafter
"Claims"), brought in connection with any death or personal injury to any person or persons or
damage or destruction of any property arising out of or in any manner directly or indirectly
connected with the entry upon the Property by Developer or any of its Related Parties or the
activities on the Property (including but not limited to the Permitted Work) by Developer or any
882/015610-0061
380889.09 a]2/17/03 -3-
of its Related Parties, but excluding from the foregoing any Claims resulting from environmental
contamination of the Property or other defects on the Property existing prior to Developer's entry
thereon and not otherwise caused by Developer or any of the Related Parties. The foregoing
indemnification shall also cover:
(a) any mechanics' or materialmen's liens, claims, demands, actions or suits
arising (directly or indirectly) from (i) any work performed or materials supplied to or for
Developer, or (ii) any activities of any of its Related Parties on or relating to the Property
(including, without limitation, any claims by any of such Related Parties); and
(b) any costs of removing Developer or its Related Parties from the Property
after the expiration of the term hereof unless Developer is otherwise entitled to be on the
Property at such time under this Agreement.
7. Insurance.
(a) Before entering the Property for any purpose, Developer shall cause the
insurance required under this paragraph to be issued and thereafter to be maintained until one (1)
year following the end of the Term. Developer shall procure and maintain:
(1) A policy of commercial general liability insurance written on a per
occurrence basis in an amount not less than: (i) for death and bodily injury, either (A) a
combined single limit of Three Million Dollars ($3,000,000) or (B) Three Million Dollars
($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and Three
Million Dollars ($3,000,000) in the aggregate, and (ii) for property damage, Three Million
Dollars ($3,000,000) per occurrence.
(2) A policy of worker's compensation insurance in such amount as
will fully comply with the laws of the State of California and which shall indemnify, insure, and
provide legal defense for both the Developer and City against any loss, claim or damage arising
from any injuries or occupational diseases occurring to any worker employed by or any persons
retained by Developer in the course of carrying out the work or services contemplated in this
Agreement.
(3) A policy of comprehensive automobile liability insurance written
on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of
Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per
occurrence, and property damage liability limits of Three Million Dollars ($3,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit
liability of Three Million Dollars ($3,000,000). Said policy shall include coverage for owned,
non -owned, leased, and hired cars.
(b) The following additional requirements shall apply to all of the above
policies of insurance:
(1) All of the above policies of insurance shall be primary insurance
and, except the Worker's Compensation insurance, shall name City, the Agency, and their
892/015610-0061
380889.09 a12/17/03 -4-
respective officers, officials, members, employees, agents, and representatives as additional
insureds.
(2) The insurer shall waive all rights of subrogation and contribution it
may have against City, Agency, and their respective officers, officials, members, employees,
agents, and representatives, and their respective insurers.
(3) All of said policies of insurance shall provide that said insurance
may not be amended or cancelled without providing thirty (30) days' prior written notice to City
and Agency.
(4) The policies of insurance required by this Agreement shall not
require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000)
unless approved in writing by the City Manager in his or her sole and absolute discretion.
(c) In the event any of said policies of insurance are cancelled, the Developer
shall, prior to the cancellation date, submit new evidence of insurance in conformance with this
Section to the City Manager.
(d) Not later than the date of this Agreement, Developer shall provide the
Agency Executive Director with Certificates of Insurance or appropriate insurance binders
evidencing the above insurance coverages and said Certificates of Insurance or binders shall be
subject to the reasonable approval of the Executive Director.
(e) Developer agrees that the provisions of this Section shall not be construed
as limiting in any way Developer's indemnity obligations set forth in Section 6 or the extent to
which Developer may be held responsible for the payment of damages to any persons or property
resulting from the Developer's activities or the activities of any person or persons for which the
Developer is otherwise responsible.
8. Miscellaneous.
8.1 Authority. Each signatory hereto warrants to the other party that it has
authority to sign on behalf of the party for whom it purports to sign.
8.2 Attorney's Fees. In the event any party hereto brings suit to enforce the
terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall
pay all reasonable costs and expenses incurred by the other party in such suit, including, without
limitation, court costs, attorneys' fees, and expert witness fees.
8.3 Entire Agreement. This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior discussions,
negotiations, understandings or agreements relating thereto.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement.
882/015610-0061
380889.09 al2/17/03 -5-
8.5 Litigation Matters. The Municipal and Superior Courts of the State of
California in the County of Riverside shall have the exclusive jurisdiction of any litigation
between the parties arising out of this Agreement. This Agreement shall be governed by, and
construed under, the laws of the State of California. Service of process on Agency shall be made
in the manner required by law for service on a public entity. Service of process on Developer
shall be made in any manner permitted by law and shall be effective whether served within or
outside of California.
8.6 Non -liability of Agency Officers and Employ. No officer, official,
member, employee, agent, or representative of Agency shall be personally liable to Developer, or
any successor or assign of same, in the event of any default or breach by Agency, or for any
amount which may become due to Developer, or any successor or assign of same, or for breach
of any obligation of the terms of this Agreement.
8.7 Covenant Against Discrimination. Developer covenants for itself, its
heirs, executors, assigns, and all persons claiming under or through it, that there shall be no
discrimination against any person on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the performance of this Agreement.
8.8 Notices. Unless other sections of this Agreement allow certain specific
notices to be given by other means, all notices required to be delivered under this Agreement or
under applicable law shall be delivered by one of the following means: (a) personal delivery; (b)
delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by
reputable document delivery service that provides a receipt showing date and time of delivery; or
(d) delivery by facsimile provided the sender receives confirmation the facsimile was received.
Notices personally delivered or delivered by a document delivery service shall be effective upon
receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second business day
following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that
any faxed notices which are transmitted at any time other than 8:00 a.m. to 4:30 p.m. Monday
through Friday (excluding legal holidays) shall be deemed transmitted as of the next business
day. Notices shall be delivered to the following addresses:
To Agency: La Quinta Redevelopment Agency
Attn: Executive Director
78-495 Calle Tampico
La Quinta, CA 92253
Telephone: (760) 777-7000
Facsimile: (760) 777-7101
With a copy to: Rutan & Tucker, LLP
Attn: M. Katherine Jenson, Esq.
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626-1998
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
882/015610-0061
380889.09 a12/17/03 -6-
To Developer: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
Telephone: (760) 776-9900
Facsimile: (760) 776-9971
With copies to: Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Telephone: (760) 360-7886
Facsimile: (760) 345-7175
and Selzer, Ealy, Hemphill & Blasdel, LLP
777 E. Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill, Esq.
Telephone: (760) 320-5977
Facsimile: (760) 320-9507
Changes in the address to be used for receipt of notices shall be effected in accordance with this
Paragraph 8.8.
8.9 Time of Essence. Time is of the essence in the performance of the
Agreement.
892/015610-0061
380889.09 a12/17/03 -7-
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first above -written.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
LIN
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
Its:
"AGENCY"
Richard R. Oliphant
President
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Name:
Its:
Executive Director
882/015610-0061
380889.09 a12/17/03 -8-
EXHIBIT "A"
TO EARLY ENTRY AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE
7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19,
ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS
SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30,
INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS;
THENCE SOUTH 00027'38" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL
WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND
THE TRUE POINT OF BEGINNING;
THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
960.27 FEET;
THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL
WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE;
THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE
OF 80.00 FEET;
THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00
FEET;
THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
41042'33", AN ARC DISTANCE OF 320.30 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF
90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
45027'41 ", AN ARC DISTANCE OF 63.48 FEET;
THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56
FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED
TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO.
108979, O.R.
THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF
790.73 FEET TO AN ANGLE POINT THEREIN;
882/015610-0061
380889.09 a12/17/03 -9-
THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 42059'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE
OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC
DISTANCE OF 236.07 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN
EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT
HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY
RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD
CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4,
1968, DRAWING NO. 1758-10;
THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE
OF PARCEL "C", A DISTANCE OF 386.46 FEET;
THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C"
AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE
OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2
AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY
RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R.
THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL
2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 86011'26" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 005'41 ", AN ARC DISTANCE OF 401.22 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF
4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY
LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID
LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033'23"
EAST;
THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER
REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 75053'46" EAST;
892/015610-0061
390889.09 a12/17/03 -10-
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 68013'18" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 66001' 12" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF
153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY
OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE;
THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
487.01 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID
NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER
DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF-
WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 36°57'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY
RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18°51'35", AN ARC
DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B.
SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING
42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS.
882/015610-0061
380889.09 a12/17/03 -11-
P.O.C.
CTR. 1 /4 COR.
SEC. 19
MILES AVENUE s 0 75.00a"^E
75.00'
N 89'31'23` E 487.01' N 89'3:
N 00'28'37" W
153.41' LPA.B .
!y9
sy
to
a
_ L6
960.27' , L7
S 00'26'40 E
112.88'
^ S 44'44'32" E
y� 90.06' C
0w,_ ?
"Y
SITE " 239.5fi " E
S� N 66'01'12" E M
(R) AREA-42.47 AC. o
L4 PORTION OF THE S. 1 /2 OF n
SEC. 19, T.5S., R.7E., S.B.M. W
.�� (R)
L5
1 "=300' . .
N86'1VWE
T
LINE DATA
NUMBER
DIRECTION
DISTANCE
Ll
S'Wl8'01' E
397.49'
L2
N 48'09'56" W
22.00'
L3
N 75'33'02" E
4.22'
L4
N 67'06'56 E
20.00
L5
S 6706 56" W
20.00'
1-6
1 N, 00'26'40" --W
20.00'
L7
N ..89'33'22" E
60.00'
CURVE DATA
fV
75'53'46" E bo
R)
PT. B,
'I EXCEPTION �`
I' PARCEL
�4. PT. A
R
u.
NUMBER
DELTA
RADIUS
ARC LENGTH
TANGENT
C1
41'42'33"
440.00
320.30
167.62
C2
45'27 41 "
80.00
63.48
33.52
C3
0757'46"
4565.17
236.07
118.06
C4
1.9'24'03"
2500.00
846.52
427.35
C5
11705'41"
2072.00
401.22
201.24
C6
1 W56'08"
2092.00
t729.11
368.29
C7 _.
02' 12'44"
12072.00
80.00
40.01
C8
OT41'06"
2092.00
280.60
140.51
C9
00'32'28"
12500.00
23.61
11.81
C10
18'51'35"
12500.00
822.9h
415,21
N 42'59'27" E
(R)
Cy�TE`
L2 yeti Fq�F9
J.N. 1612
882/015610-0061
380889.09 a12/17/03 -12-
ATTACHMENT NO. 12
EASEMENT AGREEMENT
[See Following Pages]
882/015610-0061
380889.09 a12/17/03
Recording Requested By
And When Recorded Mail To:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Agency Secretary
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
(EXEMPT FROM RECORDATION FEE PER GOVERNMENT CODE § 27383)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Agreement") is made this day of
, 2003 (the "Effective Date") by and among CP DEVELOPMENT LA
QUINTA, LLC, a California limited liability company ("Grantee"), the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and CITY OF
LA QUINTA, a California municipal corporation ("City").
RECITALS:
A. Grantee has entered into a Disposition and Development Agreement ("DDA")
dated , 2003 with the Agency, pursuant to which Agency conveyed to Grantee
that certain real property located southeast of the Miles Avenue and Washington Street
intersections in the City of La Quinta, County of Riverside, State of California (the "Grantee
Property") for Grantee's development thereon of a mixed use commercial and residential
development project (the "Project"), as further described in the DDA. A legal description of the
Grantee Property is attached hereto and incorporated herein as Exhibit "A".
B. Agency owns certain real property (collectively, the Agency -Owned
Property").identified as Lot C, Lot E, Lot H and Lot I on the site map, which is attached hereto
and incorporated herein as Exhibit `B" (the "Site Map"). The Agency -Owned Property is legally
described in Exhibit "C".
C. City owns certain public rights -of -way located in the City of La Quinta, County of
Riverside, State of California, commonly known as Washington Street and Miles Avenue,
portions of each of which are adjacent to certain portions of the Grantee Property (the "City
Right of Way"). The portions of the City Right of Way that lie between the Agency -Owned
Property and the curb located closest to the Grantee Property are hereinafter referred to as the
"City -Owned Property." The City -Owned Property is depicted on the (the "Site Map").
D. City has applied for various grants (the "Landscaping Grants") to partially fund
the cost of certain landscaping improvements the City desires to make to the City -Owned
Property and the Agency -Owned Property (collectively, the "City Landscaping Improvments").
882/015610-0061 2
390889.09 a12/17/03
E. City now desires to grant to Grantee an easement over the City -Owned Property,
and Agency desires to grant to Grantee an easement over the Agency -Owned Property, for
purposes of (i) Grantee installing, and thereafter maintaining, certain landscaping improvements,
within the City -Owned Property and the Agency -Owned Property, if City does not receive the
Landscaping Grants on or before March 1, 2004. Additionally, City, Agency, and Grantee desire
to set forth the terms and conditions for Grantee's maintenance of said landscaping
improvements.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and incorporating the above recitals, City, Agency, and Grantee
agree as follows:
Grant of Landscgping Installation Easements.
(a) City, on behalf of itself and its heirs, successors, and assigns to all or any part of
the City -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and assigns
to Grantee's interest in the Grantee Property, and for the benefit of the City -Owned Property, a
non-exclusive easement (the "City -Owned Property Landscaping Installation Easement") for
ingress and egress into, upon, over, and across any and all portions of the City -Owned Property
for purposes of installing within the City -Owned Property (i) landscaping, in accordance with the
standards set forth in the Landscaping Plan that was approved as part of the various Site
Development Permits for the Project, and (ii) any and all irrigation equipment necessary for
appropriate maintenance of such landscaping (collectively, the "City -Owned Property Developer
Landscaping Improvements").
(b) Agency, on behalf of itself and its heirs, successors, and assigns to all or any part
of the Agency -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and
assigns to Grantee's interest in the Grantee Property, and for the benefit of the Agency -Owned
Property, a non-exclusive easement (the "Agency -Owned Property Landscaping Installation
Easement") for ingress and egress into, upon, over, and across any and all portions of the
Agency -Owned Property for purposes of installing within the Agency -Owned Property (i)
landscaping, in accordance with the standards set forth in the Landscaping Plan that was
approved as part of the various Site Development Permits for the Project, and (ii) any and all
irrigation equipment necessary for appropriate maintenance of such landscaping (collectively,
the "Agency -Owned Property Developer Landscaping Improvements").
(c) City agrees that Grantee is permitted to enter the City -Owned Property to install
the City -Owned Property Developer Landscaping Improvements, and Agency agrees that
Grantee is permitted to enter the Agency -Owned Property to install the Agency -Owned Property
Developer Landscaping Improvements, between the hours of 7 a.m. to 7 p.m., Monday through
Saturday; provided, however, that not less than twenty-four (24) hours prior to Grantee's initial
entry onto the City -Owned Property or the Agency -Owned Property, Grantee or its agents shall
notify City or Agency, respectively, of its intent to do the same.
(d) The easements granted pursuant to this Section 1 hereby are intended to be
appurtenant easements for the benefit of City and Agency, and their respective successors, and
assigns, subject to the provisions set forth herein.
882/015610-0061
380889.09 a12/17/03 -3-
(e) City and Agency warrant to Grantee that they have the requisite power and
authority to grant the easements described in this Section 1.
(f) Upon Grantee's completion of installation of the City -Owned Property Developer
Landscaping Improvements and the Agency -Owned Property Developer Landscaping
Improvements, as determined by City, the easements described in this Section 1 shall
automatically terminate and be of no further force and effect. Said termination shall not affect
any of the other provisions in this Agreement, all of which shall survive such termination.
(g) In the event City obtains the landscaping Grants on or before March 1, 2004, the
easements described in this Section 1 shall automatically terminate and be of no further force and
effect. Said termination shall not affect any of the other provisions in this Agreement, all of
which shall survive said termination.
2. Grant of Landscaping Maintenance Easements.
(a) City, on behalf of itself and its heirs, successors, and assigns to all or any part of
the City -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and assigns
to Grantee's interest in the Grantee Property, and for the benefit of the City -Owned Property, a
non-exclusive easement (the "City -Owned Property Maintenance Easement") for ingress and
egress into, upon, over, and across any and all portions of the City -Owned Property for purposes
of maintaining the City -Owned Property Developer Landscaping Improvements or, if the City
obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping
Improvements installed within the City -Owned Property.
(b) Agency, on behalf of itself and its heirs, successors, and assigns to all or any part
of the Agency -Owned Property, hereby grants to Grantee and Grantee's heirs, successors, and
assigns to Grantee's interest in the Grantee Property and for the benefit of the Agency -Owned
Property, a non-exclusive easement (the "Agency -Owned Property Maintenance Easement") for
ingress and egress into, upon, over, and across any and all portions of the Agency -Owned
Property for purposes of maintaining the Agency -Owned Property Developer Landscaping
Improvements or, if the City obtains the Landscaping Grants on or before March 1, 2004, the
portion of the City Landscaping Improvements installed within the Agency -Owned Property.
(c) City agrees that Grantee is permitted to enter the City -Owned Property to
maintain the City -Owned Property Developer Landscaping Improvements or, if the City obtains
the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping
Improvements installed within the City -Owned Property, between the hours of 7 a.m. to 7 p.m.,
Monday through Saturday.
(d) Agency agrees that Grantee is permitted to enter the Agency -Owned Property to
maintain the Agency -Owned Property Developer Landscaping Improvements or, if the City
obtains the Landscaping Grants on or before March 1, 2004, the portion of the City Landscaping
Improvements installed within the Agency -Owned Property, between the hours of 7 a.m. to
7 p.m., Monday through Saturday.
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(e) The easements granted pursuant to this Section 2 are intended to be an
appurtenant easement for the benefit of City and Agency, and their respective successors, and
assigns, subject to the provisions set forth herein.
(f) City and Agency warrant to Grantee that they have the requisite power and
authority to grant the easements described in this Section 2.
3. Grantee's Maintenance Obligations.
ions.
Grantee agrees, at Grantee's sole cost and expense, to maintain, in a good condition and
repair and in compliance with all of City's requirements, (i) the City -Owned Property Developer
Landscaping Improvements and the Agency -Owned Property Developer Landscaping
Improvements, if City does not obtain the Landscaping Grants on or before March 1, 2004 and
Grantee is obligated pursuant to the DDA to install landscaping within the City -Owned Property
and the Agency -Owned Property, or (ii) the City Landscaping Improvements, if City obtains the
Landscaping Grants on or before March 1, 2004 ("Grantee's Maintenance Obligations"). Under
clause (i) above, Grantee's Maintenance Obligations as to any portion of the City -Owned
Property Developer Landscaping Improvements and the Agency -Owned Property Developer
Landscaping Improvements shall commence on the date Grantee completes installation of such
portion of the landscaping improvements. Under clause (ii) above, Grantee's Maintenance
Obligations shall commence on the date City notifies Grantee that City has completed
installation of the City Landscaping Improvements. Grantor's Maintenance Obligations shall
survive termination of the easements granted pursuant to Section 1 and continue throughout the
life of the Redevelopment Plan for the La Quinta Redevelopment Project No. 2.
4. City's Use of City -Owned Property' Agency Use of Agency -Owned Property.
Nothing herein is intended to limit City's use of the City -Owned Property or Agency's
use of the Agency -Owned Property; provided, however, that neither City nor Agency shall make
any improvements to the City -Owned Property or the Agency -Owned Property, or take any
actions, that would affect Grantee's unimpeded use of the easements granted pursuant to
Sections 1 and 2 hereof or damage the City -Owned Property Developer Landscaping
Improvements or the Agency -Owned Property Developer Landscaping Improvements, or, if the
City obtains the Landscaping Grants on or before March 1, 2004, the City Landscaping
Improvements.
5. Indemnification.
Grantee shall indemnify, defend, and hold harmless City and Agency from and against
any and all claims, obligations, demands, causes of action, damages, losses, liabilities, or
expenses incurred in connection with or arising out of the use of the Easement as provided herein
by Grantee and/or invitees, contractors, or agents of Grantee performing work on behalf of
Grantee.
6. Covenants Run with the Land, Appurtenant Easements.
All of the covenants, easements, agreements, conditions and restrictions contained herein,
whether affirmative or negative: (a) are made for the direct benefit of the City -Owned Property
882/015610-0061
380889.09 a12/17/03 -5-
and the Agency -Owned Property; (b) are covenants running with the land; (c) are appurtenant to
and shall not be conveyed or otherwise transferred separately from the City -Owned Property, the
Agency -Owned Property, or the Grantee Property; and (d) bind and inure to the burden or
benefit, as the case may be, of the respective heirs, personal representatives, successors and
assigns of the parties hereto, including, without limitation, successive owners of all or any
portion of, respectively, the City -Owned Property, the Agency -Owned Property, and the Grantee
Property.
7. General Provisions.
(a) Applicable Law
The Municipal and Superior Courts of the State of California in the County of Riverside
shall have the exclusive jurisdiction of any litigation between the parties arising out of this
Agreement. This Agreement shall be governed by, and construed under, the laws of the State of
California. In addition to any other rights or remedies, any party may take legal action, in law or
in equity, to cure, correct, or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain
any other remedy consistent with the purposes of this Agreement. The rights and remedies of the
parties are cumulative and the exercise by any party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other right or remedies
for the same default or any other default by the other party(ies). Service of process shall be
made in any manner permitted by law and shall be effective whether served within or outside of
California.
(b) Attorneys Fees
If any party to this Agreement is required to initiate or defend, or is made a party to, any
action or proceeding in any way connected with this 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.
(c) Notices
Unless otherwise provided herein, all notices required to be delivered under this
Agreement or under applicable law shall be (i) personally delivered, or (ii) delivered by United
States mail, postage prepaid, certified, return receipt requested, or (iii) delivered by reputable
document delivery service that provides a receipt showing date and time of delivery. Notices
personally delivered or delivered by a document delivery service shall be effective upon receipt.
Notices delivered by mail shall be effective at noon on the second business day following deposit
with the United States Postal Service. A party hereto may at any time, by giving ten (10) days'
written notice to the other parties hereto, designate any other address in substitution of the
address to which such notice or communication shall be given. Such notices or communications
shall be delivered to the following addresses:
882/015610-0061
380889.09 a12/17/03 -6-
To Grantor: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
With copies to: Selzer, Ealy, Hemphill & Blasdel, LLP
777 Tahquitz Canyon Way, Suite 528
Palm Springs, CA 92262
Attn: Emily Perri Hemphill, Esq.
Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
To City/Agency: City of La Quinta
78-495 Calle Tampico
La Quinta, CA 92253
Attention: City Manager
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attn: M. Katherine Jenson, Esq.
(d) Interpretation; Severability
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against any party hereto by reason of the
authorship of this Agreement or any other rule of construction which might otherwise apply.
The Section headings are for purposes of convenience only, and shall not be construed to limit or
extend the meaning of this Agreement. Each provision of this Agreement shall be severable
from the whole. If any provision of this Agreement shall be found contrary to law, the remainder
of this Agreement shall continue in full force.
(e) Integration; Amendment
It is understood that there are no oral agreements between the parties hereto affecting this
Agreement, and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements, and understandings, if any, between the parties with respect to the
subject matter hereof, and none shall be used to interpret this Agreement. This Agreement may
be amended at any time by the mutual consent of the parties by an instrument in writing which is
recorded in the official records of Riverside County.
882/015610-0061
380889.09 a12/17/03 -7-
8. Inaction Not a Waiver of Default.
Any failures or delays by any party in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any such rights or remedies, or deprive
any such party of its right to institute and maintain any actions or proceedings which it may
deem necessary to protect, assert or enforce any such rights or remedies.
9. Non -Liability of Officials and Employees of City or Agency.
No member, official or employee of City or Agency shall be personally liable to the
Grantee, or any successor in interest, in the event of any default or breach by the City or Agency
or for any amount which may become due to the Grantee or its successors, or on any obligations
under the terms of this Agreement.
10 Successors and Assigns.
All of the terms, covenants and conditions of this Agreement shall be binding upon the
Grantee and its permitted successors and assigns. Whenever the term "Grantee" is used in this
Agreement, such term shall include any other permitted successors and assigns as herein
provided.
11. Relationship Between Grantee, City and Agency.
It is hereby acknowledged that the relationship between the Grantee and City is not that
of a partnership or joint venture and that the Grantee and the City shall not be deemed or
construed for any purpose to be the agent of the other.
It is hereby acknowledged that the relationship between the Grantee and Agency is not
that of a partnership or joint venture and that the Grantee and the Agency shall not be deemed or
construed for any purpose to be the agent of the other.
12. Counterparts.
This Agreement may be signed in multiple counterparts which, when signed by all
parties, shall constitute a binding agreement.
13. No Waiver.
A waiver by any party of a breach of any of the covenants, conditions or agreements
under this Agreement to be performed by any other party shall not be construed as a waiver of
any succeeding breach of the same or other covenants, agreements, restrictions or conditions of
this Agreement.
14. Conflicts of Interest.
No member, official, representative, or employee of City or Agency shall have any
personal interest, direct or indirect, in this Agreement, nor shall any such member,
representative, official or employee participate in any decision relating to the Agreement which
882/015610-0061
380889.09 a12/17/03 -8-
affects his personal interests or the interests of any corporation, partnership or association in
which he or she is directly or indirectly interested.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as
of the date first above written.
ATTEST:
City Clerk
"Grantor"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"City"
CITY OF LA QUINTA,
a California municipal corporation
By:
Its:
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
By:
Its:
[SIGNATURES CONTINUED ON NEXT PAGE]
882/015610-0061
380889.09 a12/17/03 -9-
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson
Attorneys for City of La Quinta
[END OF SIGNATURES]
882/015610-0061
380889.09 a12/17/03 -10-
EXHIBIT "A"
LEGAL DESCRIPTION OF GRANTEE PROPERTY
The following described property in the City of La Quinta, County of Riverside, State of
California:
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE
7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19,
ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS
SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30,
INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS;
THENCE SOUTH 0002738" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL
WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND
THE TRUE POINT OF BEGINNING;
THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
960.27 FEET;
THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL
WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE;
THENCE NORTH 8903322" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE
OF 80.00 FEET;
THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00
FEET;
THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
41°42'33", AN ARC DISTANCE OF 320.30 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF
90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
45°27'41 ", AN ARC DISTANCE OF 63.48 FEET;
THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56
FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED
TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO.
108979, O.R.
882/015610-0061
380889.09 a12/17/03
THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF
790.73 FEET TO AN ANGLE POINT THEREIN;
THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 42059'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE
OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02°57'46", AN ARC
DISTANCE OF 236.07 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN
EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT
HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY
RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD
CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4,
1968, DRAWING NO. 1758-10;
THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE
OF PARCEL "C", A DISTANCE OF 386.46 FEET;
THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C"
AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE
OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2
AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY
RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R.
THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL
2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 860I 1'26" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 005'41 ", AN ARC DISTANCE OF 401.22 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF
4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY
LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID
LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033'23"
EAST;
THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER
882/015610-0061
380889.09 ai2/17/03 -2-
REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 75053'46" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 68013' 18" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 66001'12" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF
153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY
OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE;
THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
487.01 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID
NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER
DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF-
WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 36057'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY
RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC
DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B.
SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING
42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS.
882/015610-0061
380889.09 a]2/17/03 -3-
P.O.C.
CTR. 1 /4 COR.
SEC. 19
S 00 500' E
MILES AVENUE 7.0
N 89'31' 3' E 487.01' N 89'3:
N 00'28'37" W
153.41' T.P.O.B.
!y9
y
to
_ L6 _ _
960.27' -� " L7 _ � _
S 00'26'40" E
112.88'
�/1�\ S 44'0.06' E
y 90.06' �
0�
SITE N 8239.56'y 9-47-47E
s� N 6'Ol'12" E n
(R AREA-42.47 AC. o
• L4 PORTION OF THE S. 1 /2 OF
SEC. 19, T.5S., R.7E., S.B.M. La
-� Y (R)
L5 N 75'53'46" E bb
/ (R)- to
vPFt\E`' L3 PT. 8
N�
N 86'11'26" E 1' TR) 23" F Cgc�C �•;
-- (R) o.
LINE DATA
NUMBER
DIRECTI
DISTANCE
L1
S 00'18ON 01'f
397.49
L2
N 48'09'56" W
22.00'
L3
N 75733'02' E
4.22'
L4
L5
N 6TOS'S6" E
S .6T06 56" w
20.00'
20:00'
L6
N 00'26'40" W
20.00'
L7
N 89'33 22" E
80.00'`
CURVE
i EXCEPTION
PARCEL
PT. A
�S�.. N 36'57'27' E/
a (R)
II 94?' 03•
LENGTH
TANGENT
982/015610-0061
380889.09 a] 2/17/03 _4_
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L2 gNti��
J.N. 1612
EXHIBIT "B"
SITE MAP
[See Following Page]
The Site Map is not a tract map and the parcels depicted thereon are not legal parcels. Upon
Grantee's preparation of a tract map that creates legal parcels substantially consistent with the
Site Map, Grantee shall prepare legal descriptions for each parcel, and Agency, City, and
Grantee shall cooperate to attach the legal description for the Agency -Owned Property to Exhibit
"C" hereto.
882/015610-0061
380889.09 a12/17/03
LOTS
LAND USE
LOT 1 -
RESTAURANT
LOT 2 -
RESORT CASITAS *LOT
14930
0.34
LOT 3 -
RESORT CASITAS
LOT 4 -
RESORT CASITAS
LOT 5 -
RESIDENTIAL
*LOT 6 -
PARK
LOT 7 =
RESIDENTIAL *LOT •C•
LOT 8' -
14297 s.f.
THE SANCTUARY 0.33 oc.
LOT 9 -
a
THE SANCTUARY
LOT 10 -
MEDICAL OFFICE BUILDINGS
LOT 11 -
-MEDICAL OFFICE BUILDINGS
LOT 12 -• MEDICAL OFFICE BUILDINGS
LOT 13 -
RESTAURANT
LOT 14
HOTEL
COMMONLOTSLAND USE
LOT 'A•
- - - - - - - MEDICAL OFFICE PARKING / LAN
LOT 'B•
- - - - - - - SEELEY DRIVE
* LOT •C•
- - - - - - 20' PARKWAY IWASHINGTON STI
* LOT 'D•
- - - - - - - CITY LANDSCAPE ENTRY
* LOT 'E•
- - - - - - - 20' PARKWAY (WASHINGTON' ST
LOT 'F`
- - - - - - - WELLSITE
* LOT' •G•
- - - - - - - WELLSITE (N.A.P.)
* LOT 'H-
- - - - - - - 20' PARKWAY (MILES AVENUE)
*LOT •I•
- - • - - - - 20' PARKWAY (MILES AVENUE)
* Inese par=lb AM uo& WILAS wuvv)w v'
the La Quinta Redevelopment Agency.
They are depicted on this Site Map for
Convenience of reference only.
GRANTEE PROPERTY
CITY -OWNED PROPERTY
AGENCY -OWNED PROPERTY
N.T.S.
NOVEMBER 21, 2003
F_q I ®
EXHIBIT "C"
LEGAL DESCRIPTION OF AGENCY -OWNED PROPERTY
[To be inserted prior to recordation]
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ATTACHMENT NO. 13
DEVELOPMENT AGREEMENT
[See Following Pages]
882/015610-0061
380989.09 a12/17/03
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 This Line for Recorder's Use
(Exempt from Recording Fee per Gov't Code § 6103)
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE
CITY OF LA QUINTA
I4 Qw
CP DEVELOPMENT LA QUINTA, LLC
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TABLE OF CONTENTS
Page
1.0 GENERAL........................................................................................................................ 3
1.1 Term...................................................................................................................... 3
1.2 Effective Date.......................................................................................................3
1.3 Amendment or Cancellation.................................................................................3
1.4 Termination...........................................................................................................3
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING
CONSTRUCTION OF THE PROJECT...........................................................................3
2.1 Right to Develop................................................................................................... 3
2.2 Additional Applicable Codes and Regulations..................................................... 4
2.3 Permitted Density, Height and Use Limitations...................................................5
3.0 DEVELOPER'S OBLIGATIONS...................:................................................................5
3.1
Development of the Project; Planned Development.............................................5
3.2
Conditions of Approval.........................................................................................
6
3.3
Covenants, Conditions and Restrictions...............................................................6
3.3.1 Recordation of Covenants, Conditions and Restrictions and
Establishment of Casitas Development Homeowner
Association................................................................................................
6
3.3.2 Recordation of Covenants, Conditions and Restrictions and
Establishment of Sanctuary Villas Development Homeowner
Association................................................................................................
7
3.4
Payments to City by Developer............................................................................
7
3.4.1 General......................................................................................................7
3.4.2 Developer's Payments of One -Time Mitigation Fees ..............................7
3.4.3 Casitas Development Annual Mitigation Fee; Termination .....................
8
3.4.4 Sanctuary Villas Development Annual Mitigation Fee;
Termination...............................................................................................
8
3.4.5 Payment of Casitas Development Public Facilities Fee...........................9
3.4.6 Payment of Sanctuary Villas Development Public Facilities Fee ............
9
3.4.7 Consumer Price Index Adjustments..........................................................9
3.4.8 Termination of Sanctuary Villas Development Fees..............................10
3.4.9 Landscape Improvements Payment; Maintenance..................................10
3.4.10 Other F ees and Charges; Assessment Appeals.......................................11
3.5
Park Improvements.............................................................................................11
3.6
Dedications and Improvements...........................................................................11
3.7
Indemnification...................................................................................................12
3.8
Insurance.............................................................................................................12
4.0 CITY'S OBLIGATIONS................................................................................................13
4.1 Scope of Subsequent Review/Confirmation of Compliance Process.................13
4.2 Project Approvals Independent...........................................................................14
4.3 Review for Compliance......................................................................................14
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Page
5.0 DEFAULT; REMEDIES; DISPUTE RESOLUTION....................................................14
5.1 Notice of Default.................................................................................................14
5.2 Cure of Default...................................................................................................15
5.3 City Remedies.....................................................................................................15
5.4 Developer's Exclusive Remedy..........................................................................15
6.0 MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE.................................16
6.1 Encumbrances on the Project Site......................................................................16
6.2 Mortgage Protection............................................................................................16
6.3 Mortgagee Not Obligated...................................................................................16
6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure ............................16
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT ...................
7.1 Prohibition.....................................................................................
7.2 Transfers Prior to Completion of Project ......................................
7.3 Assignment and Assumption of Obligations ................................
7.4 Successors and Assigns.................................................................
7.5 Assignment by City.......................................................................
8.0 MISCELLANEOUS...........................................................................
8.1 Notices....................................................................................
8.2 Force Majeure . .........................................................................
8.3 Binding Effect.........................................................................
8.4 Independent Entity..................................................................
8.5 Agreement Not to Benefit Third Parties .................................
8.6 Covenants................................................................................
8.7 Nonliability of City Officers and Employees .........................
8.8 Covenant Against Discrimination ...........................................
8.9 Amendment of Agreement......................................................
8.10 No Waiver...............................................................................
8.11 Severability.............................................................................
8.12 Cooperation in Carrying Out Agreement ................................
8.13 Estoppel Certificate.................................................................
8.14 Construction............................................................................
8.15 Recordation.............................................................................
8.16 Captions and References.........................................................
8.17 Time........................................................................................
8.18 Recitals & Exhibits Incorporated; Entire Agreement .............
8.19 Exhibits...................................................................................
8.20 Counterpart Signature Pages ...................................................
8.21 Authority to Execute...............................................................
8.22 City Approvals and Actions ....................................................
8.23 Governing Law; Litigation Matters ........................................
8.24 No Brokers..............................................................................
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DEVELOPMENT AGREEMENT
This Development Agreement (the "Agreement") is entered into as of the day of
, 2003 ("Reference Date"), by and between the CITY OF LA QUINTA, a
California municipal corporation and charter city organized and existing under the Constitution
of the State of the California (the "City"), and CP DEVELOPMENT LA QUINTA, LLC, a
California limited liability company (the "Developer"), with reference to the following:
RECITALS. -
A. Government Code Sections 65864-65869.5 ("Development Agreement Act")
authorize the City to enter into a binding development agreement for the development of real
property within its jurisdiction with persons having legal or equitable interest in such real
property-
B. Pursuant to Section 65865 of the Government Code, the City has adopted its
Development Agreement Ordinance (La Quinta Municipal Code Section 9.250.030) establishing
procedures and requirements for such development agreements ("Development Agreement
Ordinance").
C. Prior to or concurrently with the execution of this Agreement, Developer has
entered into a Disposition and Development Agreement (the "DDA") with the La Quinta
Redevelopment Agency ("Agency"), pursuant to which (1) the Agency, subject to the terms and
conditions set forth in the DDA, has agreed to sell to the Developer, in one or more phases,
certain real property located within the City southeast of the Miles Avenue and Washington
Street intersection which is legally described in Exhibit A-1 attached hereto and shown on the
Site Map attached hereto as Exhibit A-2 (the "Site"); and (2) the Developer has agreed to
construct on the Site the "Project," which will consist of a mixed use residential and commercial
development, and other permitted uses. The Project is more fully described in, and subject to (i)
this Agreement, (ii) the Center Point Specific Plan, also known as Specific Plan No. SP2001-055
as amended by City Council Resolution No. 2003-035 on June 3, 2003 ("Specific Plan"); (iii) the
DDA, (iv) the Mitigated Negative Declaration prepared for the Project, dated December 5, 2001,
as amended by the Addendum to Mitigated Negative Declaration, approved by the City Council
on June 3, 2003, by City Council Resolution No. 2003-035 (collectively, the "Revised Mitigated
Negative Declaration"); (v) any future Site Development Permits issued for the Project,
including all conditions of approval attached thereto (collectively, the "Project Site Development
Permits"); (vi) any future Tract Maps approved for the Project, including all conditions of
approval thereto (collectively, the "Project Tract Maps"); and (vii) the conditions of approval
associated with each and all of the foregoing approvals (collectively, the "Conditions of
Approval"). The documents described in the foregoing clauses (i)-(vi) are collectively referred
to herein as the "Development Plan," and are, or when approved or issued shall be, on file with
the City Clerk.
D. By virtue of the DDA, as of the execution of this Agreement, the Developer has
an equitable interest in the Site. By its execution of the consent form attached to this Agreement,
the Agency consents to recordation of this Agreement against the Site.
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E. Consistent with Section 9.250.030 of the La Quinta Municipal Code, City and
Developer desire to enter into a binding agreement for purposes of (i) identifying the terms,
conditions, and regulations for the construction of the Project, certain components of which
constitute a Planned Development (as defined in Civil Code Section 1351(k)); (ii) setting forth a
payment schedule for the Developer's payment to the City of certain amounts designed to
compensate the City in the event that certain components of the Project fail to generate specified
levels of transient occupancy tax (as that term is used in La Quinta Municipal Code Chapter
3.24) (hereinafter, "transient occupancy tax" or "TOT"); (iii) setting forth a payment schedule
for the Developer's payment to the City of Three Hundred Forty -Six Thousand Eleven Dollars
($346,011), to cover the Developer's contribution towards the cost of certain landscaping
improvements the City desires to install within certain portions of the real property adjacent to
the Site; (iv) requiring the Developer, at its sole cost, to construct a neighborhood park on certain
real property owned in fee by the City; and (v) setting forth the extent to which Developer may
construct, develop, use and operate the Project.
F. Among other purposes, this Agreement is intended to be, and shall be construed
as, a development agreement within the meaning of the Development Agreement Act. This
Agreement will eliminate uncertainty in planning for and secure the orderly development of the
Project, ensure a desirable and functional community environment, provide effective and
efficient development of public facilities, infrastructure, and services appropriate for the
development of the Project, and assure attainment of the maximum effective utilization of
resources within the City, by achieving the goals and purposes of the Development Agreement
Act. In exchange for these benefits to City, Developer desires to receive the assurance that they
may proceed with development of the Project in accordance with the terms and conditions of this
Agreement and the Development Plan, all as more particularly set forth herein.
G. The City Council has determined that the Project and this Agreement are
consistent with the City's General Plan and the Specific Plan, including the goals and objectives
thereof.
H. All actions taken by City have been duly taken in accordance with all applicable
legal requirements, including the California Environmental Quality Act (Public Resources Code
Section 21000, et seq.) ("CEQA"), and all other requirements for notice, public hearings,
findings, votes and other procedural matters.
I. On June 17, 2003, the City Council adopted its Ordinance No. 385 approving this
Agreement.
AGREEMENT. -
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and legal sufficiency of
which is hereby acknowledged, the parties do hereby agree as follows:
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1.0 GENERAL
1.1 Term.
The term of this Agreement shall commence on the Effective Date hereof and shall
continue for fifty (50) years thereafter, unless said term is otherwise terminated, modified, or
extended by circumstances set forth in this Agreement or by mutual consent of the parties hereto
after the satisfaction of all applicable public hearing and related procedural requirements.
1.2 Effective Date.
This Agreement shall be effective, and the obligations of the parties hereunder shall be
effective, as of July 17, 2003, which is the date that Ordinance No. 385 takes effect ("Effective
Date").
1.3 Amendment or Cancellation.
Except as expressly stated to the contrary herein, this Agreement may be amended or
canceled in whole or in part only by mutual consent of the parties and in the manner provided for
in Government Code Section 65867-65868 and the City's Development Agreement Ordinance.
1.4 Termination.
Unless terminated earlier, pursuant to the terms hereof, this Agreement shall
automatically terminate and be of no further effect upon the expiration of the Term of this
Agreement as set forth in Section 1.1. Termination of this Agreement, for any reason, shall not,
by itself, affect any right or duty arising from entitlements or approvals set forth under the
Development Plan, as defined in Section 2.1, below.
Notwithstanding anything herein to the contrary, in the event the "Initial Escrow" or the
"Property Escrow" (as those terms are defined in the DDA), as applicable, fail to close within the
time set forth in the DDA, as such time may be extended pursuant to the terms of the DDA, this
Agreement shall automatically terminate and the Developer and City agree to execute and record
such document as the Title Company (defined in the DDA) reasonably requires to remove this
Agreement of record.
2.0 DEVELOPER'S RIGHTS AND LIMITATIONS REGARDING CONSTRUCTION OF
THE PROJECT
2.1 Right to Develop.
Subject to the terms, conditions, and covenants of this Agreement, Developer's right to
develop the Project in accordance with the Development Plan (and subject to the Conditions of
Approval which, among other Conditions of Approval associated with future approvals and
permits issued by the City, includes but is not limited to the Conditions of Approval set forth in
Exhibit "B" attached hereto) shall be deemed vested upon approval of the Development Plan,
which vesting shall expire upon the earlier of the following occurrences: (a) termination of this
Agreement; (b) termination of the DDA; (c) an uncured material default by Developer of this
Agreement or the DDA; (d) as to a particular phase, parcel, or lot comprising a portion of the
394/015610-0061
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Site, the earlier of the final approved City inspection of the completed development on such
phase, parcel, or lot or the issuance by City of a certificate of occupancy for such phase, parcel,
or lot; or (e) as to a particular phase, parcel, lot comprising a portion of the Site, the date set forth
in the DDA when Developer was required to have completed the development of all
improvements on such phase, parcel, or lot. Except for the expiration set forth in clause (a) of
the preceding sentence, the expiration of the vesting right set forth in the preceding sentence
shall not terminate the obligations of Developer under this Agreement. Notwithstanding
anything in this Agreement to the contrary, the Project shall remain subject to:
(i) all ordinances, regulations, rules, laws, plans, policies, and guidelines of
the City and its City Council, Planning Commission, and all other City boards, commissions, and
committees existing on the Effective Date of this Agreement (collectively, the "Existing
Development Regulations");
(ii) all amendments or modifications to Existing Development Regulations
after the Effective Date of this Agreement and all ordinances, regulations, rules, laws, plans,
policies, and guidelines of the City and its City Council, Planning Commission, and all other
City boards, commissions, and committees enacted or adopted after the Effective Date of this
Agreement (collectively, "New Laws"), except such New Laws which would prevent or
materially impair Developer's ability to develop the Project in accordance with the Development
Plan unless such New Laws are (A) adopted by the City on a City-wide basis and applied to the
Site in a non-discriminatory manner, (B) required by a non -City entity to be adopted by or
applied by the City (or if optional the failure to adopt or apply such non -City law or regulation
would cause City to sustain a loss of funds or loss of access to funding or other resources), or (C)
New Laws the City reserves the right to apply under this Agreement, including but not limited to
Sections 2.2 and 3.4.10;
(iii) all subsequent development approvals and the conditions of approval
associated therewith, including but not limited to Site Development Permits, Project Tract Maps,
and building permits,
(iv) the payment of all fees or exactions in the categories and in the amounts as
required at the time such fees are due and payable which may be at the time of issuance of
building permits, or otherwise as specified by applicable law, as existing at the time such fees are
due and payable, and
(v) the reservation or dedication of land for public purposes or payment of
fees in lieu thereof as required at the time such reservations or dedications or payments in lieu
are required under applicable law to be made or paid.
2.2 Additional Applicable Codes and Regulations
Notwithstanding any other provision of this Agreement, City also reserves the right to
apply the following to the development of the Project:
2.2.1 Building, electrical, mechanical, fire and similar building codes based
upon uniform codes adopted in, or incorporated by reference into, the La Quinta
Municipal Code, as existing on the Effective Date of this Agreement or as may be
enacted or amended thereafter, applied to the Project in a nondiscriminatory manner.
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2.2.2 In the event of fire or other casualty requiring construction of more than
fifty (50%) percent of any building previously constructed hereunder, nothing herein
shall prevent the City from applying to such reconstruction all requirements of the City's
Building, Electrical, Mechanical, and similar building codes based upon uniform codes
adopted in, or incorporated by reference into, the La Quinta Municipal Code, solely to the
extent applicable to all development projects in the City.
2.2.3 This Agreement shall not prevent the City from establishing any new
City fees, including new development impact fees, or increasing any existing City fees,
including existing development impact fees, including but not limited to the Community
Facility Fees, as discussed in 3.4 below, and to apply such new or increased fees to the
Project or applicable portion thereof where such new or increased fees may be charged.
2.3 Permitted Density Height and Use Limitations.
The permitted uses, density and intensity of use, location of uses, maximum height and
size of proposed buildings, minimum setbacks, and other standards applicable to the Project shall
be those set forth in the Development Plan and this Agreement, whichever is the strictest.
3.0 DEVELOPER'S OBLIGATIONS
3.1 Development of the Project,• Planned Development.
Developer shall construct the Project on the Site in accordance with the Development
Plan. The Project shall consist of a mixed -use residential and commercial development with the
following components:
(A) a mid -price suites hotel containing approximately one hundred thirty-four (134)
guest rooms ("Suites Hotel") to be constructed on a portion of the Site, as depicted on the Site
Map (the "Suites Hotel Parcel");
(B) a resort -style condominium/casitas project containing approximately one hundred
thirty-six (136) condominium/casitas units ("Casitas Development") to be constructed on a
portion of the Site, as depicted on the Site Map (the "Casitas Development Parcel(s)");
(C) a residential development containing approximately thirteen (13) "courtyard
cluster villas" homes ("Villas Residential Development") to be constructed on a portion of the
Site, as depicted on the Site Map (the "Villas Residential Development Parcel");
(D) a residential development containing approximately fifty-four (54) homes
consisting of approximately twenty-nine (29) "Courtyard Cluster Homes" and approximately
twenty-five (25) "Perimeter Homes" (collectively, the "Cluster/Perimeter Residential
Development"), to be constructed on a portion of the Site, as depicted on the Site Map
("Cluster/Perimeter Residential Development Parcel"), with
(i) fourteen (14) of the homes ("Unrestricted Cluster/Perimeter Component")
within the Cluster/Perimeter Residential Development to be sold on a market rate basis; and
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(ii) forty (40) of the homes ("Affordable Housing Component") within the
Cluster/Perimeter Residential Development to be marketed and sold to moderate income buyers
at an affordable housing cost (as those terms are defined in Health & Safety Code Section
50093);
(E) two (2) restaurants (the "Restaurants");
(F) a medical office/surgical facility ("Medical Office/Surgical Facility") to be
constructed on a portion of the Site (the "Medical/Office/Surgical Facility Parcel(s)"); and
(G) a development containing approximately twenty-six (26) sanctuary villas
("Sanctuary Villas Development") to be constructed on a portion of the Site, as depicted on the
Site Map (the "Sanctuary Villas Parcel(s)");
The Site Map is not a tract map and the parcels depicted there are not legal parcels. Upon
Developer's preparation of a tract map that creates legal parcels substantially consistent with the
Site Map, Developer shall prepare legal descriptions for each of the Suites Hotel Parcel, the
Casitas Development Parcel(s), the Villas Residential Development Parcel, the Cluster/Perimeter
Residential Development Parcel, the Medical Office/Surgical Facility Parcel(s), and the
Sanctuary Villas Parcel(s), and Agency and Developer shall cooperate to attach such legal
descriptions to any document where such legal descriptions are required.
The Villas Residential Development, the Cluster/Perimeter Residential Development, the
Sanctuary Villas Development, and the Casitas Development shall each constitute a Planned
Development, and shall be developed and operated in compliance with Section 1350, et SeMc . of
the Civil Code.
3.2 Conditions of Approval.
The Conditions of Approval attached hereto as Exhibit "B" include and incorporate the
mitigation measures of the Revised Mitigated Negative Declaration so that significant
environmental effects will be mitigated or avoided. The Developer shall also comply with the
mitigation monitoring program set forth in Exhibit "C" attached hereto (the "Mitigation
Monitoring Program"). Developer acknowledges that additional Conditions of Approval beyond
those set forth in Exhibit `B" may be applicable to the Project if and as associated with future
Project approvals including but not limited to Site Development Permits and Project Tract Maps.
3.3 Covenants. Conditions and Restrictions.
3.3.1 Recordation of Covenants. Conditions and Restrictions and Establish-
ment of Casitas Development Homeowner Association.
Prior to, and as a condition of, the City's issuance of any building permits for the Casitas
Development, the Developer shall submit to the City, obtain approval thereof, and record,
covenants, conditions and restrictions against the Casitas Development Parcel which, in addition
to the obligations set forth in the Conditions of Approval, shall (i) establish a homeowner's
association for the Casitas Development (the "Casitas Development HOA"); (ii) provide for the
Casitas Development HOA's payment of the fees described in Sections 3.4.3 and 3.4.5; and (iii)
provide for the rental of each of the units in the Casitas Development through a national
394/015610-0061
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reservation system (unless Developer provides to the reasonable satisfaction of the City a
written, final, and binding determination by a governmental authority with jurisdiction, or the
written opinion, subject only to reasonable qualifications, of a qualified legal counsel, that
requiring the rental of units in the Casitas Development through a national reservation system
would mandate registration of the Casitas Development or the sale of such units as a "security"
within the meaning of applicable federal or state law or regulation).
3.3.2 Recordation of Covenants, Conditions and Restrictions and
Establishment of Sanctuary Villas Development Homeowner
Association.
Prior to, and as a condition of, the City's issuance of any building permits for the
Sanctuary Villas Development, the Developer shall submit to the City, obtain approval thereof,
and record, covenants, conditions and restrictions against the Sanctuary Villas Parcels which, in
addition to the obligations set forth in the Conditions of Approval, shall (i) establish a
homeowner's association for the Sanctuary Villas Development (the "Sanctuary Villas
Development HOA"); (ii) provide for the Sanctuary Villas Development HOA's payment of the
fees described in Sections 3.4.4 and 3.4.6; and (iii) provide for the rental of each of the units in
the Sanctuary Villas Development through a national reservation system (unless Developer
provides to the reasonable satisfaction of the City a written, final, and binding determination by a
governmental authority with jurisdiction, or the written opinion of a qualified legal counsel,
subject only to reasonable qualifications, that requiring the rental of units in the Sanctuary Villas
Development through a national reservation system would mandate registration of the Sanctuary
Villas Development or the sale of such units as a "security" within the meaning of applicable
federal or state law or regulation).
3.4 Payments to Cily by Developer.
3.4.1 General.
During the Term of this Agreement, Developer or the applicable HOA, as applicable,
shall make the payments to City described in this Section 3.4. The payments under this Section
3.4 are not the exclusive development impact fees for the Project and nothing in this Section 3.4
shall be construed as a limitation on the right of the City to impose, levy, or assess the Site other
development fees as permitted by applicable law.
3.4.2 Developer's Payments of One -Time Mitigation Fees.
a. Developer shall pay to the City, for each unit in the Casitas Development, with
such payment due upon the first close of escrow for each such unit, the sum of One Thousand
Five Hundred Dollars ($1,500).
b. Developer shall pay to the City, for each unit in the Sanctuary Villas
Development, with such payment due upon the first close of escrow for each such unit, the sum
of Two Thousand One Hundred Fifty Dollars ($2,150).
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3.4.3 Casitas Development Annual Mitigation Fee, Termination.
During the term of this Agreement, on each July 1 st following the Effective Date
("Annual Mitigation Payment Date"), the Casitas Development HOA shall pay to the City an
annual mitigation fee ("Casitas Development Annual Mitigation Fee") covering the annual
period of the prior July 1 through the June 30 occurring immediately preceding the Annual
Mitigation Payment Date (the "Operative Year") [provided, however, the first Operative Year
shall commence on the Effective Date of this Agreement and end on the next occurring June 30).
The Casitas Development Annual Mitigation Fee shall be the collective sum of One Hundred
Fifty Dollars ($150) [as the same may increase by the CPI in accordance with Section 3.4.7] for
each unit ("Casitas Development Unit Fee") in the Casitas Development that has been sold to a
purchaser, as evidenced by the close of escrow for such unit, prior to the applicable Annual
Mitigation Payment Date regardless of when or in which Operative Year the unit was sold.
Notwithstanding anything herein to the contrary, the Casitas Development Annual Mitigation
Fee shall not be required to be paid for any Operative Year in which the City has received
transient occupancy taxes derived from, collectively, the Suites Hotel Parcel, the Casitas
Development Parcel, and the Sanctuary Villas Parcel, which equals or exceeds Five Hundred
Forty -Six Thousand One Hundred Thirty -One Dollars ($546,131.00) [as the same may increase
by the CPI in accordance with Section 3.4.7] (the "Minimum Annual TOT Amount") for the
applicable Operative Year.
Notwithstanding the paragraph above, if the City has received the Minimum Annual TOT
Amount in each of three (3) consecutive Operative Years, the Casitas Development HOA's
obligation to pay the Casitas Development Annual Mitigation Fee shall be terminated and shall
be of no further force or effect.
3.4.4 Sanctuary Villas Development Annual Mitigation Fee; Termination.
During the term of this Agreement, on each Annual Mitigation Payment Date, the
Sanctuary Villas Development HOA shall pay to the City an annual mitigation fee ("Sanctuary
Villas Development Annual Mitigation Fee") covering the annual period of the prior July 1
through the June 30 occurring immediately preceding the Annual Mitigation Payment Date (the
"Operative Year") [provided, however, the first Operative Year shall commence on the Effective
Date of this Agreement and end on the next occurring June 30). The Sanctuary Villas
Development Annual Mitigation Fee shall be the collective sum of One Hundred Fifty Dollars
($ l 50) ) [as the same may increase by the CPI in accordance with Section 3.4.7] for each unit
("Sanctuary Villas Development Unit Fee") in the Sanctuary Villas Development that has been
sold to a purchaser, as evidenced by the close of escrow for such unit, regardless of when or in
which Operative Year the unit was sold. Notwithstanding anything herein to the contrary, the
Sanctuary Villas Development Annual Mitigation Fee shall not be required to be paid for any
Operative Year in which the City has received transient occupancy taxes derived from,
collectively, the Suites Hotel Parcel, the Casitas Development Parcel, and the Sanctuary Villas
Parcel, which equals or exceeds the Minimum Annual TOT Amount for the applicable Operative
Year.
Notwithstanding the paragraph above, if the City has received the Minimum Annual TOT
Amount in each of three (3) consecutive Operative Years, the Sanctuary Villas Development
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HOA's obligation to pay the Sanctuary Villas Development Annual Mitigation Fee shall be
terminated and shall be of no further force or effect.
3.4.5 Payment of Casitas Development Public Facilities Fee.
In addition to the other payments required to be paid pursuant to this Section 3.4, the
Casitas Development HOA shall be required to pay to the City the sum of five percent (5%) of
any rental amount charged for occupancy of a unit in the Casitas Development which is rented
for a period of more than thirty (30) days (the "Casitas Development Public Facilities Fee"). The
Casitas Development Public Facilities Fee shall be due and payable to the City within thirty (30)
days after any such occupancy terminates, regardless of whether the rent, or any amount thereof,
was collected. If the unit is provided free of charge or at a discount, as consideration for a
service provided to the owner of the unit or to the Casitas Development HOA and/or for
promotional or marketing purposes, the rent shall be deemed to be the higher of (i) the value of
the services received; or (ii) the average rent of all of the units in the Casitas Development
during the period the unit was provided. Notwithstanding the foregoing, the requirement to pay
the Casitas Development Public Facilities Fee shall not apply in the case where an owner of a
Casitas Development unit provides his or her Casitas Development unit to a person who is a
relative of the owner, for no consideration, for a period of more than thirty (30) days.
3.4.6 Payment of Sanctuary Villas Development Public Facilities Fee.
In addition to the other payments required to be paid pursuant to this Section 3.4, the
Sanctuary Villas Development HOA shall be required to pay to the City the sum of five percent
(5%) of any rental amount charged for occupancy of a unit in the Sanctuary Villas Development
which is rented for a period of more than thirty (30) days (the "Sanctuary Villas Development
Public Facilities Fee"). The Sanctuary Villas Development Facilities Fee shall be due and
payable to the City within thirty (30) days after any such occupancy terminates, regardless of
whether the rent, or any amount thereof, was collected. If the unit is provided free of charge or
at a discount, as consideration for a service provided to the owner of the unit or to the Sanctuary
Villas Development HOA and/or for promotional or marketing purposes, the rent shall be
deemed to be the higher of (i) the value of the services received; or (ii) the average rent of all of
the units in the Sanctuary Villas Development during the period the unit was provided.
Notwithstanding the foregoing, the requirement to pay the Sanctuary Villas Development Public
Facilities Fee shall not apply in the case where an owner of a Sanctuary Villas Development unit
provides his or her Sanctuary Villas Development unit to a relative of the owner, for no
consideration, for a period of more than thirty (30) days.
3.4.7 Consumer Price Index Adjustments.
Each of the Casitas Development Annual Mitigation Fee, the Casitas Development Unit
Fee, the Sanctuary Villas Development Annual Mitigation Fee, the Sanctuary Villas
Development Unit Fee, and the Minimum Annual TOT Amount shall be adjusted annually, on
each May 1st during the term of this Agreement, by the Consumer Price Index for Urban Wage
Earners and Clerical Workers, Los Angeles -Riverside -Orange County average, All Items, 1982-
84 = 100, published by the United States Department of Labor, Bureau of Labor Statistics (the
"CPI"), by comparing the CPI existing on the immediately prior March 1st to the CPI existing on
the March Is' of the previous year. No adjustment shall be made in any year in which there has
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been a decrease in the CPI. If the CPI is no longer published at any point during the Term of this
Agreement, a comparable index shall be selected by the parties.
3.4.8 Termination of Sanctuary Villas Development Fees.
In the event that, after the Developer constructs the Casitas Development, the escrow
pursuant to which the Developer is to acquire the Sanctuary Villas Parcel(s) from the La Quinta
Redevelopment Agency is terminated, or the City has otherwise determined that the Developer
will not construct the Sanctuary Villas Development, the City and Developer agree to execute
and record any document reasonably required by the Riverside County Recorder's Office to
terminate the provisions contained in this Development Agreement as they pertain to the
Sanctuary Villas Development. From and after such termination the Developer shall have no
rights or obligations under this Agreement with respect to the Sanctuary Villas Parcel(s).
3.4.9 Landscape Improvements Payment; Maintenance.
The City has applied for various grants (collectively, the "Landscape Grants") to partially
fund the cost of certain landscaping improvements (the "Landscaping Improvements") the City
desires to make to certain portions of the real property adjacent to the Site (the "Agency and City
Landscape Property"). The Landscape Improvements are estimated to cost approximately Nine
Hundred Eleven Thousand Two Hundred Forty -Six Dollars ($911,246). The Developer's
contribution towards the Landscape Improvements is Three Hundred Forty -Six Thousand Eleven
Dollars ($346,011) (the "Developer's Contribution"). In the event the City obtains the
Landscape Grants, Developer shall pay to the City the Developer's Contribution, pursuant to the
following:
(i) Developer shall pay to City One Hundred Fifteen Thousand Three
Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow
pursuant to which the Developer will purchase the real property on which the Developer will
construct the Suites Hotel;
(ii) Developer shall pay to City One Hundred Fifteen Thousand Three
Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow
pursuant to which the Developer will purchase the Sanctuary Villas Parcel(s); and
(iii) Developer shall pay to City One Hundred Fifteen Thousand Three
Hundred Thirty -Seven Dollars ($115,337) prior to, and as a condition of, the close of escrow
pursuant to which the Developer will purchase the first of the Cluster/Perimeter Residential
Development Parcel or Villas Residential Parcel.
Notwithstanding the payment schedule outlined above, the full amount of the
Developer's Contribution shall be due and payable to the City on or before May 20, 2004.
Notwithstanding anything in this Agreement to the contrary, if the City does not obtain
the Landscape Grants, (i) City shall not be obligated to construct the Landscape Improvements,
(ii) Developer shall not be obligated to pay to City the Developer's Contribution, and (iii)
Developer shall be obligated to construct on the Agency and City Landscape Property landscape
improvements in accordance with the standards set forth in the Landscaping Plan that was
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approved as part of the various Site Development Permits for the Project, in accordance with
Section 312 of the DDA (the "Developer Landscape Improvements").
Developer agrees to maintain, in perpetuity, the Landscape Improvements or the
Developer Landscape Improvements, as applicable. City and Developer agree to execute an
Easement Agreement, in the form attached to the DDA as Attachment No. 12, for purposes of
providing Developer access to the Agency and City Landscape Property in order to perform
Developer's obligations pursuant to this Section.
3.4.10 Other Fees and Charges; Assessment Appeals.
Nothing set forth in this Agreement is intended or shall be construed to limit or restrict
the City's authority to impose its existing, or any new or increased, fees, charges, levies, or
assessments for the development of the Site, or to impose or increase, subject to the required
procedure, any taxes applicable to the Site including but not limited to transient occupancy taxes,
provided nothing set forth herein, subject to the next sentence, is intended or shall be construed
to limit or restrict whatever right Developer might otherwise have to challenge any fee, charge,
levy, assessment, or tax imposed. Developer agrees that it shall not to take any action, including
any assessment appeal, to decrease the assessed value of any of the Site or any portion thereof
below the final assessed value at the time the development of the Site or separate parcel thereof
is completed; provided, however, the foregoing restriction on challenging or appealing
assessments shall not apply to individual homeowners who have purchased units on the Villas
Residential Development Parcel or the Cluster/Perimeter Residential Development Parcel.
Developer shall timely pay all applicable fees, charges, levies, assessments, and special and
general taxes validly imposed in accordance with the Constitution and laws of the State of
California, including without limitation school impact fees in accordance with Government Code
§§ 65995, et seq.
3.5 Park Improvements.
Developer agrees to develop a neighborhood park on that certain City -owned property,
which is identified as "Lot 6" in the Site Mhp (the "City Park Property"), in accordance with the
list of park improvements set forth in Exhibit "D" hereto (the "Park Improvements") and all
applicable City and State laws and regulations. Prior to Developer's entry onto the City Park
Property, Developer shall enter into an Early Entry Agreement with the City substantially in the
form of which is attached hereto as Exhibit "E". The Park Improvements shall be completed and
accepted by the City prior to, and as a condition of, the City's final inspection of the first unit in
the earlier of the Villas Residential Development Parcel or the Cluster/Perimeter Residential
Development Parcel.
3.6 Dedications and Improvements.
Developer shall offer dedications to the City or other applicable public agency, or
complete those public improvements in connection with the Project, as specified in the
Conditions of Approval.
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3.7 Indemnification.
a. The Developer agrees to and shall indemnify, hold harmless, and defend, the City
and the Agency and their respective officers, officials, members, agents, employees, and
representatives, from liability or claims for death or personal injury and claims for property
damage which may arise from the acts, errors, and/or omissions of the Developer or its
contractors, subcontractors, agents, employees or other persons acting on its behalf in relation to
the Project and/or this Agreement. The foregoing indemnity applies to all deaths, injuries, and
damages, and claims therefor, suffered or alleged to have been suffered by reason of the acts,
errors, and/or omissions referred to in this paragraph, regardless of whether or not the City
prepared, supplied, or approved plans or specifications, or both, and regardless of whether or not
the insurance policies referred to in this Agreement are applicable. In the event of litigation, the
City agrees, at no cost to the City, to cooperate with the Developer.
b. In the event of any court action or proceeding challenging the validity of this
Agreement or the Revised Mitigated Negative Declaration, the Developer shall indemnify, hold
harmless, pay all costs and provide defense for the City in said action or proceeding with counsel
chosen by Developer and reasonably approved by the City. The City shall, at no cost to the City,
cooperate with the Developer in any such defense as Developer may reasonably request. In the
event the Developer fails or refuses to provide such defense of any challenge to this Agreement
or the Revised Mitigated Negative Declaration, City shall have the right not to defend such
challenge, and to resolve such challenge in any manner it chooses in its sole discretion, including
terminating this Agreement.
3.8 Insurance.
Before beginning construction on the Site, the Developer shall cause the insurance
required under this paragraph to be issued and thereafter to be maintained until one (1) year
following the later of (i) the date City issues the last certificate of occupancy needed for the
initial occupancy of the last portion of the Project, or (ii) the date the. City signs off on the last
final inspection of the last of the Project improvements.
Developer shall procure and maintain:
a, A policy of commercial general liability insurance written on a per occurrence
basis in an amount not less than: (A) for death and bodily injury, either (i) a combined single
limit of Three Million Dollars ($3,000,000) or (ii) Three Million Dollars ($3,000,000) per person
and Three Million Dollars ($3,000,000) per occurrence, and Three Million Dollars ($3,000,000)
in the aggregate, and (B) for property damage, Three Million Dollars ($3,000,000) per
occurrence.
b. A policy of worker's compensation insurance in such amount as will fully comply
with the laws of the State of California and which shall indemnify, insure, and provide legal
defense for both the Developer and City against any loss, claim or damage arising from any
injuries or occupational diseases occurring to any worker employed by or any persons retained
by Developer in the course of carrying out the work or services contemplated in this Agreement.
C. A policy of comprehensive automobile liability insurance written on a per
occurrence basis in an amount not less than either (i) bodily injury liability limits of Three
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Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence,
and property damage liability limits of Three Million Dollars ($3,000,000) per occurrence and
Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit liability of
Three Million Dollars ($3,000,000). Said policy shall include coverage for owned, non -owned,
leased, and hired cars.
The following additional requirements shall apply to all of the above policies of
insurance:
(i) All of the above policies of insurance shall be primary insurance and,
except the Worker's Compensation insurance, shall name City, the Agency, and their respective
officers, officials, members, employees, agents, and representatives as additional insureds.
(ii) The insurer shall waive all rights of subrogation and contribution it may
have against City, Agency, and their respective officers, officials, members, employees, agents,
and representatives, and their respective insurers.
(iii) All of said policies of insurance shall provide that said insurance may not
be amended or cancelled without providing thirty (30) days' prior written notice to City and
Agency.
(iv) The policies of insurance required by this Agreement shall not require
Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000) unless
approved in writing by the City Manager in his or her sole and absolute discretion.
In the event any of said policies of insurance are cancelled, the Developer shall, prior to
the cancellation date, submit new evidence of insurance in conformance with this Section to the
City Manager.
Not later than the Reference Date of this Agreement, Developer shall provide the City
Manager with Certificates of Insurance or appropriate insurance binders evidencing the above
insurance coverages and said Certificates of Insurance or binders shall be subject to the
reasonable approval of the City Manager.
Developer agrees that the provisions of this Section shall not be construed as limiting in
any way Developer's indemnity obligations set forth in Section 3.7 or the extent to which
Developer may be held responsible for the payment of damages to any persons or property
resulting from the Developer's activities or the activities of any person or persons for which the
Developer is otherwise responsible.
4.0 CITY'S OBLIGATIONS
4.1 Scone of Subseauent Review/Confirmation of Compliance Process.
Nothing set forth herein shall impair or interfere with the right of the City to require the
processing of building permits as required by law pursuant to the applicable provisions of the La
Quinta Municipal Code and the provisions of City's Fire Codes and ordinances, Health and
Safety Codes and ordinances, and Building, Electrical, Mechanical, and similar building codes.
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Prior to each request for a building permit, Developer shall provide City with a
Compliance Certificate ("Certificate") in a form created by Developer and approved by the City,
which shall describe how all applicable Conditions of Approval have been fully complied with.
The Certificate shall be distributed to relevant City departments for checking the representations
made by Developer on the Certificate.
4.2 Project Approvals Independent.
All approvals required for the Project which may be or have been granted, and all land
use entitlements or approvals generally which have been issued or will be issued by the City with
respect to the Project, constitute independent actions and approvals by the City. If any provision
of this Agreement or the application of any provision of this Agreement to a particular situation
is held by a court of competent jurisdiction to be invalid or unenforceable, or if this Agreement
terminates for any reason, then such invalidity, unenforceability or termination of this Agreement
or any part hereof shall not affect the validity or effectiveness of any such Project approvals or
other land use approvals and entitlements. In such cases, such approvals and entitlements will
remain in effect pursuant to their own terms, provisions, and the Conditions of Approval. It is
understood by the parties to this Agreement that pursuant to existing law, if this Agreement
terminates or is held invalid or unenforceable as described above, such approvals and
entitlements shall not remain valid for the term of this Agreement, but shall remain valid for the
term of such approvals and entitlements.
4.3 Review for Compliance.
The City shall review this Agreement at least once during every twelve (12) month period
following the Effective Date of this Agreement, in accordance with the City's procedures and
standards for such review set forth in the City's Development Agreement Ordinance. During
such periodic review by the City, the Developer, upon written request from City, shall be
required to demonstrate, and hereby agrees to furnish, evidence of good faith compliance with
the terms hereof. The failure of the City to conduct or complete the annual review as provided
herein or in accordance with the Development Agreement Act shall not impact the validity of
this Agreement. If, at the conclusion of the annual review provided for herein, Developer shall
have been found in compliance with this Agreement, City, through the City's Community
Development Director, shall, at Developer's written request, issue a Certificate of Compliance to
Developer stating that (1) this Agreement remains in full force and effect and (2) Developer is in
compliance with this Agreement. The Certificate of Compliance shall be in recordable form, and
shall contain information necessary to communicate constructive record notice of the finding of
compliance. Developer, at its option and sole cost, may record the Certificate of Compliance.
5.0 DEFAULT, REMEDIES, DISPUTE RESOLUTION.
5.1 Notice of Default.
In the event of failure by either party hereto substantially to perform any material term or
provision of this Agreement, the non -defaulting party shall have those rights and remedies
provided herein, provided that such non -defaulting party has first provided to the defaulting party
a written notice of default in the manner required by Section 8.1 hereof identifying with
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specificity the nature of the alleged default and the manner in which said default may
satisfactorily be cured.
5.2 Cure of Default.
Upon the receipt of the notice of default, the alleged defaulting party shall promptly
commence to cure, correct, or remedy the identified default at the earliest reasonable time after
receipt of the notice of default and shall complete the cure, correction or remedy of such default
not later than five (5) days [or thirty (30) days for non -monetary defaults] after receipt of the
notice of default, or, for such defaults that cannot reasonably be cured, corrected or remedied
within five (5) days [or thirty (30) days for non -monetary defaults], such party shall commence
to cure, correct, or remedy such default within such five (5) day period [or thirty (30) day period
for non -monetary defaults], shall and continuously and diligently prosecute such cure, correction
or remedy to completion.
5.3 City Remedies.
In the event of an uncured default by Developer of the terms of this Agreement, the City,
at its option, may institute legal action in law or in equity to cure, correct, or remedy such
default, enjoin any threatened or attempted violation, or enforce the terms of this Agreement;
provided, however, that (i) City and Developer agree that City's right to pursue damages is
limited to the then -outstanding loan balance under that certain Note, executed by Developer, as
"Maker," in favor of Agency, as "Holder," pursuant to the DDA, and (ii) in no event shall City
be entitled to consequential damages for any Developer default. For purposes of this Agreement
the term "consequential damages" shall include, but not be limited to, potential loss of
anticipated tax revenues from the Project or any portion thereof. Furthermore, the City, in
addition to or as an alternative to exercising the remedies set forth in this Section 5.3, in the
event of a material default by Developer, may give notice of its intent to terminate or modify this
Agreement pursuant to the City's Development Agreement Ordinance and/or the Development
Agreement Act, in which event the matter shall be scheduled for consideration and review by the
City Council in the manner set forth in the City's Development Agreement Ordinance or the
Development Agreement Act.
5.4 Developer's Exclusive Remedy.
The parties acknowledge that the City would not have entered into this Agreement if it
were to be liable in damages under or with respect to this Agreement or any of the matters
referred to herein including but not limited to the Development Plan, Conditions of Approvals,
the Existing Development Regulations or any future amendments or enactments thereto, or the
Project, except as provided in this Section. Accordingly, Developer covenants on behalf of itself
and its successors and assigns, not to sue the City for damages or monetary relief for any breach
of this Agreement by City or arising out of or connected with any dispute, controversy, or issue
between Developer and City regarding this Agreement or any of the matters referred to herein
including but not limited to the application, interpretation, or effect of this Agreement, the
Development Plan, the Conditions of Approval, the Existing Development Regulations or nay
future amendment or enactments thereto, or any land use permit or approval sought in
connection with the development of the Project or any component thereof, or use of a parcel or
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any portion thereof, the parties agreeing that declaratory and injunctive relief, mandate, and
specific performance shall be Developer's sole and exclusive judicial remedies.
6.0 MORTGAGEE PROTECTION, CERTAIN RIGHTS OF CURE
6.1 Encumbrances on the Project Site.
This Agreement shall not prevent or limit the Developer from encumbering the Site or
any portion thereof or any improvements thereon with any mortgage, deed of trust, sale and
leaseback arrangement, or any other form of conveyance in which the Site, or a portion thereof
or interest therein, is pledged as security, and contracted for in good faith and fair value
(a "Mortgage") securing financing with respect to the construction, development, use or
operation of the Project.
6.2 Mortgage Protection.
This Agreement shall be superior and senior to the lien of any Mortgage.
Notwithstanding the foregoing, no breach of this Agreement shall defeat, render invalid,
diminish, or impair the lien of any Mortgage made in good faith and for value, and any
acquisition or acceptance of title or any right or interest in or with respect to the Site or any
portion thereof by a holder of a beneficial interest under a Mortgage, or any successor or
assignee to said holder (a "Mortgagee") [whether pursuant to foreclosure, trustee's sale, deed in
lieu of foreclosure, lease termination or otherwise] shall be subject to all of the terms and
conditions of this Agreement.
6.3 Mortgagee Not Obligated.
No Mortgagee will have any obligation or duty under this Agreement to perform the
obligations of the Developer or other affirmative covenants of Developer hereunder, or to
guarantee such performance, except that (i) the Mortgagee shall have no right to develop or
operate the Site, and (ii) to the extent that any covenant to be performed by the Developer is a
condition to the performance of a covenant by the City, the performance thereof shall continue to
be a condition precedent to the City's performance hereunder.
6.4 Notice of Default to Mortgagee; Right of Mortgagee to Cure.
City shall, upon written request to the City, deliver to each Mortgagee a copy of any
notice of default given to Developer under the terms of this Agreement, at the same time of
sending such notice of default to Developer. The Mortgagee shall have the right, but not the
obligation, within five (5) days [or thirty (30) days for non -monetary defaults] after the receipt of
such notice from City, to cure, correct, or remedy the default, or, for such defaults that cannot
reasonably be cured, corrected, or remedied within five (5) days [thirty (30) days for non -
monetary defaults], to commence to cure, correct, or remedy the default within such five (5) day
period [or thirty (30) day period for non -monetary defaults], and to continuously and diligently
prosecute such cure to completion. If the default is of a nature which can only be remedied or
cured by such Mortgagee upon obtaining possession of the Site, such Mortgagee shall have the
right to seek to obtain possession with diligence and continuity through foreclosure, a receiver or
otherwise, and shall be permitted thereafter to remedy or cure the default within such time as is
reasonably necessary to cure or remedy said default but in no event more than thirty (30) days
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after obtaining possession. If any such default cannot, with diligence, be remedied or cured
within such thirty (30) day period, then such period shall be extended to permit the Mortgagee to
effect a cure or remedy so long as Mortgagee commences said cure or remedy during such thirty
(30) day period, and thereafter diligently pursues and completes such cure.
7.0 TRANSFERS OF INTEREST IN SITE OR AGREEMENT
7.1 Prohibition.
The qualifications and identity of the Developer as the developer of high quality
commercial developments are of particular concern to the City. Furthermore, the parties
acknowledge that the City has negotiated the terms of this Agreement in contemplation of the
development and operation of the Project on the Site and the tax revenues to be generated by the
operation of the Project on the Site and other benefits accruing to the City from the Project.
Accordingly, until the date the Agency, pursuant to the DDA, issues a Release of Construction
Covenants for the final Phase of Development (as defined in the DDA) to be constructed on the
Site (the "Completion of Construction Date"), (a) no voluntary or involuntary successor in
interest of the Developer shall acquire any rights or powers under this Agreement, (b) nor shall
the Developer make any total or partial sale, transfer, conveyance, assignment, subdivision,
refinancing or lease of the whole or any part of the Site or the Project thereon (collectively
referred to herein as a "Transfer"), except as provided in this Section 7.
7.2 Transfers Prior to Completion of Project.
Prior to the Completion of Construction Date, the City may approve or disapprove a
proposed Transfer in its sole and absolute discretion; provided that the City agrees to reasonably
consider a proposed Transfer to an entity in which the Developer or Richard Oliphant retains a
minimum of fifty-one percent (51 %) of the ownership or beneficial interest and retains
management and control of the transferee entity. The City may condition its approval of such a
proposed Transfer prior to the Completion of Construction Date (other than transfers approved
pursuant to the immediately preceding sentence) upon the payment of one-half of the net
proceeds of the Transfer.
Notwithstanding the foregoing, City approval of a Transfer prior to the
Completion of Construction Date shall not be required in connection with any of the following:
a. The conveyance or dedication of any portion of the Site to the City or other
appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Project (as defined herein).
b. Any assignment for financing purposes (subject to such financing being permitted
pursuant to, and subject to, the DDA), including the grant of a deed of trust to secure the funds
necessary for land acquisition, construction and permanent financing of the Project or of a Phase
of Development.
C. A transfer of any of the Suites Hotel, the Suites Hotel Parcel, the Casitas
Development, or the Casitas Development Parcel(s), to Center Point Hotel Development, LLC, a
California limited liability company.
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d. A transfer of the Villas Residential Development Parcel or Cluster/Perimeter
Residential Parcel to (i) Ehline Development Co., a California corporation ("Ehline"), or (ii) a
limited liability company or limited partnership to be formed by Ehline, and in which Ehline is
the managing member of the liability company or the general partner of the limited partnership.
e. A transfer of the Sanctuary Villas Development or Sanctuary Villas Parcel(s) to
Center Point Sanctuary, LLC, a California limited liability company.
f. A transfer of the Medical Office/Clinic or parcel(s) on which that use is
developed to Medical Service Center of La Quinta, LLC, a California limited liability company
intended to be formed by Developer.
In the event of a Transfer by Developer under subparagraphs (a) through (f) above not
requiring the City's prior approval, Developer nevertheless agrees that at least thirty (30) days
prior to such Transfer it shall give written notice to City of such assignment and satisfactory
evidence that the assignee has assumed in writing through an assignment and assumption
agreement of all obligations (or specifically listed and defined obligations with respect to
Transfers for a portion of the Site) of Developer of this Agreement. In the event such transfer is
under subparagraphs (d), or (f) above (other than a transfer to Ehline), Developer shall, along
with the notice required to be given pursuant to the immediately preceding sentence, provide
City with evidence that such proposed transferee entity has been duly formed in accordance with
the laws of the State of California.
7.3 Assignment and Assumption of Obligations.
Developer shall provide to City an assignment and assumption agreement in a form
reasonably satisfactory to the City's legal counsel for all proposed Transfers requiring the City's
approval.
7.4 Successors and Assigns.
All of the terms, covenants and conditions of this Agreement shall be binding upon the
Developer and its permitted successors and assigns. Whenever the term "Developer" is used in
this Agreement, such term shall include any other permitted successors and assigns as herein
provided.
7.5 Assignment by City.
City may assign or transfer any of its rights or obligations under this Agreement with the
approval of the Developer, which approval shall not be unreasonably withheld.
8.0 MISCELLANEOUS
8.1 Notices.
All notices permitted or required hereunder must be in writing and shall be effected by (i)
personal delivery, (ii) first class mail, registered or certified, postage fully prepaid, or (iii)
reputable same -day or overnight delivery service that provides a receipt showing date and time
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of delivery, addressed to the following parties, or to such other address as any party may from
time to time designate in writing in the manner as provided herein:
To City: City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Attn: Community Development Director
With a copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson
To Developer: CP Development La Quinta, LLC
Attn: Richard Oliphant
77-900 Avenue of the States
Palm Desert, CA 92211
Telephone: (760) 776-9900
Facsimile: (760) 776-9971
With a copies to: Genesis Hotel Development, LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Telephone: (760) 360-7886
Facsimile: (760) 345-7175
and Selzer, Ealy, Hemphill & Blasdel, LLP
777 E. Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill, Esq.
Telephone: (760) 320-5977
Facsimile: (760) 320-9507
Any written notice, demand or communication shall be deemed received immediately if
personally delivered or delivered by delivery service, and shall be deemed received on the third
day from the date it is postmarked if delivered by registered or certified mail.
8.2 Force Majeure.
In addition to specific provisions of this Agreement, performance by either party
hereunder shall not be deemed to be in default where delays or failures to perform are due to
war, insurrection, strikes, walk -outs, riots, floods, earthquakes, fires, casualties, acts of God, acts
of the public enemy, terrorism, epidemics, quarantine restrictions, freight embargoes,
governmental restrictions imposed or mandated by other governmental entities, governmental
restrictions or priority, unusually severe weather, inability to secure labor, materials, or tools
necessary for the Project, delays of any contractor, subcontractor or supplier; acts of another
party, acts or the failure to act of any public or governmental agency or entity (except that acts or
the failure to act of the City or the Agency shall not excuse performance by the City) or any
394/015610-0061
390243.13 a12/17/03 -19-
other causes beyond the control or without the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall only be for the period of the enforced
delay, which period shall commence to run from the time of the commencement of the cause.
Times of performance under this Agreement may also be extended in writing by the City and the
Developer.
Notwithstanding the paragraph above, Developer is not entitled pursuant to this Section
8.2 to an extension of time to perform because of past, present, or future difficulty in obtaining
suitable construction or permanent financing for the development of the Site, or because of
economic or market conditions.
8.3 ° Binding Effect.
This Agreement, and all of the terms and conditions hereof, shall be binding upon and
inure to the benefit of the parties, any subsequent owner of all or any portion of the Project or the
Site, and their respective assigns, heirs or successors in interest, whether or not any reference to
this Agreement is contained in the instrument by which such person acquired an interest in the
Project or the Site.
8.4 Independent Entity.
The parties acknowledge that, in entering into and performing this Agreement, each of
the Developer and the City is acting as an independent entity and not as an agent of the other in
any respect.
8.5 Agreement Not to Benefit Third Parties.
This Agreement is made for the sole benefit of the parties, and no other person shall be
deemed to have any privity of contract under this Agreement nor any right to rely on this
Agreement to any extent for any purpose whatsoever, nor have any right of action of any kind on
this Agreement nor be deemed to be a third party beneficiary under this Agreement.
Notwithstanding the immediately preceding sentence, the Agency shall be an intended third
party beneficiary to this Agreement.
8.6 Covenants.
The provisions of this Agreement shall constitute mutual covenants which shall run with
the land comprising the Site for the benefit thereof, and the burdens and benefits hereof shall
bind and inure to the benefit of each of the parties hereto and all successors in interest to the
parties hereto for the term of this Agreement.
8.7 Nonliabilfty of City Officers and Employees.
No official, officer, employee, agent or representative of City, acting in his/her official
capacity, shall be personally liable to Developer, or any successor or assign, for any loss, costs,
damage, claim, liability, or judgment, arising out of or connection to this Agreement, or for any
act or omission on the part of City.
394/015610-0061 _20_
390243.13 a12/17/03
8.8 Covenant Against Discrimination.
Developer and City covenant and agree, for themselves and their respective successors
and assigns, that there shall be no discrimination against, or segregation of, any person or group
or persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry, or any other impermissible classification, in the performance of this Agreement.
Developer shall comply with the Americans with Disabilities Act of 1990, as amended (42
U.S.C. §§ 12101, et seq.).
8.9 Amendment of Agreement.
This Agreement may be amended from time to time by mutual consent of the original
parties or such parry to which the Developer assigns all or any portion of its interest in this
Agreement, in accordance with the provisions of the City's Development Agreement Ordinance
and Government Code Sections 65867 and 65868.
8.10 No Waiver.
No waiver of any provision of this Agreement shall be effective unless in writing and
signed by a duly authorized representative of the party against whom enforcement of a waiver is
sought and referring expressly to this Section. No delay or omission by either party in exercising
any right or power accruing upon non-compliance or failure to perform by the other party under
any of the provisions of this Agreement shall impair any such right or power or be construed to
be a waiver thereof, except as expressly provided herein. No waiver by either party of any of the
covenants or conditions to be performed by the other party shall be construed or deemed a
waiver of any succeeding breach or nonperformance of the same or other covenants and
conditions hereof.
8.11 Severability.
If any term, provision, covenant or condition of this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this
Agreement shall continue in full force and effect, to the extent that the invalidity or
unenforceability does not impair the application of this Agreement as intended by the parties.
8.12 Cooperation in Carrying Out Agreement.
Each party shall take such actions and execute and deliver to the other all such further
instruments and documents as may be reasonably necessary to carry out this Agreement in order
to provide and secure to the other party the full and complete enjoyment of its rights and
privileges hereunder.
8.13 Estoppel Certificate.
Any party hereunder may, at anytime, deliver written notice to any other party requesting
such party to certify in writing that, to the best knowledge of the certifying party, (i) this
Agreement is in full force and effect and a binding obligation of the parties, (ii) this Agreement
has not been amended or modified either orally or in writing, or if so amended, identifying the
amendments, (iii) the requesting party is not in default in the performance of its obligations
394/015610-0061
390243.13 al2/17/03 -21-
under this Agreement, or if in default, describing the nature and amount of any such defaults, and
(iv) any other reasonable information requested. A party receiving a request hereunder shall
execute and return such certificate within ten (10) days following approval of the proposed
estoppel certificate by the City Attorney, which approval shall not be unreasonably withheld or
delayed. The City Manager, Assistant City Manager, and Community Development Director are
each authorized to sign and deliver an estoppel certificate on behalf of the City. City
acknowledges that a certificate hereunder may be relied upon by transferees and Mortgagees.
8.14 Construction.
This terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the authorship
of this Agreement or any other rule of construction that might otherwise apply. As used in this
Agreement, and as the context may require, the singular includes the plural and vice versa, and
the masculine gender includes the feminine and vice versa.
8.15 Recordation.
This Agreement shall be recorded with
Developer's cost, if any, within the period re(
Amendments approved by the parties, and any
shall be similarly recorded.
8.16 Captions and References.
the County Recorder of Riverside County at
[uired by Government Code Section 65868.5.
cancellation or termination of this Agreement,
The captions of the paragraphs and subparagraphs of this Agreement are solely for
convenience of reference, and shall be disregarded in the construction and interpretation of this
Agreement. Reference herein to a paragraph or exhibit are the paragraphs, subparagraphs and
exhibits of this Agreement.
8.17 Time.
Time is of the essence in the performance of this Agreement and of each and every term
and condition hereof as to which time is an element.
8.18 Recitals & Exhibits Incorporated; Entire Agreement.
The Recitals to this Agreement and all of the exhibits and attachments to this Agreement
are, by this reference, incorporated into this Agreement and made a part hereof. This
Agreement, including all Exhibits attached hereto, constitutes the entire agreement between the
parties with respect to the subject matter of this Agreement, and this Agreement supersedes all
previous negotiations, discussions and agreements between the parties, and no parole evidence of
any prior or other agreement shall be permitted to contradict or vary the terms hereof.
8.19 Exhibits.
Exhibits "A" — " E" to which reference is made in this Agreement are deemed
appropriated herein in their entirety. Said exhibits are identified as follows:
394/015610-0061 -22-
390243.13 a]2/17/03
A-1
Legal Description of Site
A-2
Site Map
B
Conditions of Approval
C
Mitigation Monitoring Program
D
Park Improvements
E
Early Entry Agreement
8.20 Counterpart Signature Pages.
For convenience the parties may execute and acknowledge this agreement in counterparts
and when the separate signature pages are attached hereto, shall constitute one and the same
complete Agreement.
8.21 Authority to Execute.
Developer warrants and represents that (i) it is duly organized and existing, (ii) it is duly
authorized to execute and deliver this Agreement, (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement, (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound, and (v) there is no existing or threatened litigation
or legal proceeding of which Developer is aware which could prevent Developer from entering
into or performing its obligations set forth in this Agreement.
8.22 City Approvals and Actions.
Whenever a reference is made in this Agreement to an action or approval to be
undertaken by the City Manager, his or her authorized designee is authorized to act on behalf of
the City unless specifically provided otherwise or the law otherwise requires.
8.23 Governing Law, Litigation Matters.
The internal laws of the State of California shall govern the interpretation and
enforcement of this Agreement without regard to conflicts of law principles. Any action at law
or in equity brought by any party hereto for the purpose of enforcing, construing, or interpreting
the validity of this Agreement or any provision hereof shall be brought in the Superior Court of
the State of California in and for the County of Riverside, or such other appropriate court in said
county, and the parties hereto waive all provisions of law providing for the filing, removal, or
change of venue to any other court. Service of process on City shall be made in accordance with
California law. Service of process on Developer shall be made in any manner permitted by
California law and shall be effective whether served inside or outside of California. In the event
of any action between the parties hereto seeking enforcement of any of the terms of this
Agreement or otherwise arising out of this Agreement, the prevailing party in such litigation
shall be awarded, in addition to such relief to which such party is entitled, its reasonable
attorney's fees, expert witness fees, and litigation costs and expenses.
8.24 No Brokers.
Each of the City and the Developer represents to the other party that it has not engaged
the services of any finder or broker and that it is not liable for any real estate commissions,
394/015610-0061
390243.13 a12/17/03 -23-
broker's fees, or finder's fees which may accrue by means of this Agreement, and agrees to hold
harmless the other party from such commissions or fees as are alleged to be due from the party
making such representations.
[end — signature page follows]
394/015610-0061
39024113 a12/17/03 -24-
IN WITNESS WHEREOF, the Developer and the City have executed this Agreement as
of the Reference Date.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"CITY"
CITY OF LA QUINTA, a California municipal
corporation
City Manager
ATTEST:
June Greek
City Clerk
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
M. Katherine Jenson
City Attorney
394/015610-0061
390243.13 a12/17/03 -25-
EXHIBIT "A-1"
LEGAL DESCRIPTION OF SITE
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE
7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19,
ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS
SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30,
INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS;
THENCE SOUTH 00027'38" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL
WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND
THE TRUE POINT OF BEGINNING;
THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
960.27 FEET;
THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL
WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE;
THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE
OF 80.00 FEET;
THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00
FEET;
THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
41042-33", AN ARC DISTANCE OF 320.30 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF
90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
45027'41 ", AN ARC DISTANCE OF 63.48 FEET;
THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56
FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED
TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO.
108979, O.R.
THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF
790.73 FEET TO AN ANGLE POINT THEREIN;
394/015610-0061
390243.13 a12/17/03 4 -
THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 42059'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE
OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02057'46", AN ARC
DISTANCE OF 236.07 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN
EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT
HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY
RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD
CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4,
1968, DRAWING NO. 1758-10;
THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE
OF PARCEL "C", A DISTANCE OF 386.46 FEET;
THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C"
AND ITS NORTHWESTERLY PROLONGATION NORTH 64021'03" WEST, A DISTANCE
OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2
AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY
RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R.
THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL
2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 86011'26" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 005'41 ", AN ARC DISTANCE OF 401.22 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF
4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY
LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID
LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17033'23"
EAST;
THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER
REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 75053'46" EAST;
394/015610-0061 _
390243.13 a12/17/03 -2
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 68013' 18" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 66001' 12" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF
153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY
OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE;
THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
487.01 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID
NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER
DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF-
WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 36057'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY
RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC
DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B.
SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING
42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS.
394/015610-0061
390243.13 a12/17/03 -3-
MILES AVENU447.01V
N 89'31' 3" EN 00'28'37
153.41'
!L9
oy
�• \ N 66'01
(R
L4
NR) "
(�
L5
40V5 L3
N 86'11'26" E ;.
R c
LINE DATA
NUMBER
'DIRECTION
DISTANCE
L1
S 00' 18 01 "' E
397.49
L2
N 48'09'56" W
22.00'
L3
N 75'33'02" E
4.22'
L4
N 6706'56" E
20.00'
L5
S 6706 56 W
20:00' -
L6
IN 00'26'40" W
20.00'
L7
I N 89'33'22" E
80.00'
ICURVE DATA
P.O.C.
CTR. 1 /4 COR.
SEC. 19
S 0
75.0075.00'
N 89'3.'
T.P.OJL
in
_ L6i�
960.27' \ L7__
S 00'26'4O" E
112.88'
S 44'44'32" E
90.06' C
z
N 89'47'47" E
SITE 239.56'
E AREA-42.47 AC.
PORTION OF THE S. 1/2 OF
SEC. 19, T.5S., R.7E., S.B.M.
NUMBER
DELTA-
RADIUS
ARC LENGTH
TANGENT
Ti-
41-42'33"
440.00
1320.30
167.62
C2
45'27'41 "
80.00
6348
33.52
C3
0757'46"
4565.17
236.07
118.06
C4
19'24'03'
2500.00
846.52
427.35
C5
11'05'41"
2072.00
401.22
201.24
C6 -
1758'08"
2092.00
729.11
368.29
C7
02' 12'44"
2072.00 .
80.00
40.01
68 -
07'41-'06"
12092.00
280.60
140.51
C9
00'32'28"
12500.00
123.61
11.81
C10 '
18551 `35"
125MOO
1822.91
415.21
N
BZ-CIV,4,-
woR'w
t.1
EXCEPTION
PARCEL
PT. A -
I. \ N 42'59'27" E
(R)
6¢ Lygti F44 2 F
J.N. 1612
394/015610-0061
390243.13 a12/17/03 -4-
EXHIBIT "A-2"
SITE MAP
The Site Map is not a tract map and the parcels depicted there are not legal parcels. Upon
Developer's preparation of a tract map that creates legal parcels substantially consistent with the
Site Map, Developer shall prepare legal descriptions for each of the Suites Hotel Parcel, the
Casitas Development Parcel(s), the Villas Residential Development Parcel, the Cluster/Perimeter
Residential Development Parcel, the Medical Office/Surgical Facility Parcel(s), and the
Sanctuary Villas Parcel(s), and Agency and Developer shall cooperate to attach such legal
descriptions to any document where such legal descriptions are required.
LOTS LAND US
LOT 1 - RESTAURANT
LOT. 2 - RESORT CASITAS *LOT 'D'
xsw J.
0.0s «
LOT 3 - RESORT CASITAS - LOT 1
ISO 0.
LOT 4 RESORT CASITAS 0.92 «.
LOT 5 - RESIDENTIAL
*LOT S ' - PARK _
LOT 7 - RESIDENTIAL *LOT 'C'
'LOT B THE SANCTUARY
jq
au.
«r
LOT THE SANCTUARY ��
LOT 10 - MEDICAL OFFICE BUILDINGS CA�
LOT 11 MEDICAL OFFICE BUILDINGS lR
LOT 12 - MEDICAL OFFICE. BUILDINGS Y0
n
LOT 13 RESTAURANT
LOT 14 HOTEL *LOT 'I
54H .
0.13 a
COMMON LOTS LAND USE
LOT 'A - - - - MEDICAL OFFICE PARKING / LANDSCAPE
.. LOT 'B - - - - SEELEY. DRIVE
*LOT'C - - 2D' PARKWAY.(WASHINGTON STREET)
* LOT '1 - - - CITY LANDSCAPE ENTRY
*LOT'E' - - - - 20' PARKWAY .IWASHNGTON STREET)
LOT 'F - - - - - WELLSITE
*LOT 'G.. - - - - - WELLSITE (N.A.P.)
* LOT *H' - - " ' " 20' PARKWAY (MILES AVENUE)
*LOT 1' "' " 20' PARKWAY (MILES AVENUE)
* These parmta we not bemg conveyed by
the 1A Quints Redevelopment Agency.
They m depicted on this Site Map for
convenience of reference only.
Ci
S
N.T.S.
NOVEMBER 21. 2003
394/015610-0061
390243.13 a12/17/03 -1-
EXHIBIT `B"
CONDITIONS OF APPROVAL
CITY COUNCIL RESOLUTION NO.2003-035
CONDITIONS OF APPROVAL - FINAL
SPECIFIC PLAN 2001-055, AMENDMENT #1
ADOPTED: JUNE 3, 2003
The Specific Plan document shall be modified to include the following:
The developer shall submit five final documents to the Community Development
Department prior to issuance of any permits.
The Developer agrees to defend, indemnify and hold harmless the City of La
Quinta (City), its agents, officers and employees from any claim, action or
proceeding to attack, set aside, void, or annul the approval of this Specific Plan, or
any other application pertaining thereto. The City shall have sole discretion in
selecting its defense counsel.
2. Add to the Development Standards for Tourist Commercial, page 6, and Office
Commercial, Page 8, that the first 150 feet along Washington Street is limited to
structure heights of 22 feet.
3. Change, on Page 5 of the Specific Plan, Land Use Area I- 19.51 acre to 19.12-
acre.
4. Change, on page 6 of the Specific Plan, Land Use Area II- 11.32 acre to 11.10-
acre.
5. Add to Page 6 of the Specific Plan, Tourist Commercial Development Standards -
"Minimum perimeter building/landscape setback (in feet) from Cluster Villas at
the corner of Miles Avenue and Seeley Drive-18/10."
6. Add the following footnote to Page 6 of the Specific Plan, Tourist Commercial
Development Standards- Resort Casitas Maximum building height (ft.) 33*;
*within the first 60' along Miles Avenue, measured from the south side of the 20'
landscape setback parcel, the Maximum height of the Resort Casitas units is 22';
within the next 60' to 150' along Miles Avenue, the Maximum height of the
Resort Casitas units is 26'; the height may be 33' outside the 150' setback.
7. Change, on Page 7 of the Specific Plan, Medium Density Residential (RM)
Development standards- Attached Dwelling Units to Two-story Courtyard Single
Family Homes.
8. Eliminate on Page 7, Two-story Courtyard single family homes standard for the
minimum perimeter building/landscape setback from Tourist Commercial (casita
units) 5 feet.
394/015610-0061
390243.13 a12/17/03 4 -
9. Add on, Page 7, Two-story Courtyard single-family homes standard, Interior
street building/landscape setback 20 feet.
10. Add on, Page 7, Two-story Courtyard single-family homes standard, minimum
front yard setback 20 feet.
11. Change, on Page 7A of the Specific Plan, Medium Density Residential (RM)
Development standards- Single Family Cluster Courtyard to One- and Two -Story
Single Cluster Courtyard Villas.
12. Page 7A. Single Family Cluster Courtyard Dwelling Units Standards. Add an
Interior street building/landscape setback of 20 feet.
13. Page 7A. Single Family Cluster Courtyard Units. Change the setback from
Tourist Commercial (casita units) from 5 feet to 10 feet.
14. Page 7A. Single Family Cluster Courtyard Dwelling Units Standards. Change
the minimum perimeter building/landscape setback from Tourist Commercial
District from 5 feet to 10 feet.
15. Add the following footnote to Page 7A of the Specific Plan, Medium Density
Residential (RM) Development standards- One- and Two -Story Single Cluster
Courtyard Villas Building Height 28 ft*; *within the first 60' along Miles
Avenue, measured from the south side of the 20' landscape setback parcel, the
Maximum height of the One- and Two -Story Single Cluster Courtyard Villas
units is 22'; within the next 60' to 150' along Miles Avenue, the Maximum height
of the One- and Two -Story Single Cluster Courtyard Villas units is 26'; the height
may be 28' outside the 150' setback..
16. Page 16. On -Site Improvements. Move the last bullet point, The Public Works
Department shall consider the option to install a left turn pocket for Seeley Drive
southbound, north of Miles Avenue to the off -site improvement section.
17. Exhibit B and F is for illustrative purposes and is subject to modification based
upon the development standards in this Specific Plan and applicable Zoning
Development Standards.
18. Page 8. Land Use Area IV. Add C. Prohibited Uses: 1. Helicopter Landing
Areas; and, 2. Emergency Center.
19. Change, on Page 8 of the Specific Plan, Land Use Area III- 3.02-acre to 2.68-
acre.
20. Change, on page 8 of the Specific Plan, Land Use Area IV- 9.73-acre to 9.22-
acre.
21. Comply with the Coachella Valley Water District Letter dated January 30, 2002,
Attachment A, unless modified by the District.
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22. Streets shall be 28 feet wide with 12 foot setbacks with no parking on one side of
the street for the One and Two Story Courtyard Villas located north of Seeley
Drive and west of the Park.
23. The grading plan shall be approved with the site development permit by the
Planning Commission.
24. The HOA shall maintain all common area landscaping in perpetuity.
25. The landscaping shall comply with the Water Efficiency Ordinance.
26. The boundary between the residential development and the park may be designed
with compatible uses.
27. Eliminate the last paragraph on Page 22 under Circulation Element.
28. Add Exhibits B-1 (Concept Plan- Development Parceling), B-2 (Concept Plan -
Medical & Surgical Center), and B-3 (Concept Plan- Boutique Hotel) to the
Specific Plan
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Addendum for Environmental Assessment 2001-436
Planning Commission Resolution 2002-017
City Council Resolution 2002-07
La)&c)
The proposed project occurs at a high topographic point in the city, and is bordered on
the east and north by single family residential development. In order to assess the
potential impacts to the viewshed of these single family residential units, a visual impact
simulation was conducted.' The simulations were conducted for views from the east and
south to the west, and from the north and east to the south and west. The analysis clearly
demonstrates that the scale of the proposed project will not eliminate the views of
existing or future residential units to the surrounding mountains. The impacts of
structures on the project site will be less than significant.
III. a) & d)
Air quality in the Coachella Valley and the City is primarily affected by vehicular
emissions.2 The development of this project could generate up to 6,170 average daily
trips. Based on this trip generation, the project at buildout will generate the following
nnlliltantc
Running Exhaust Emissions(pounds/da )
PM10 PM10 PM10
CO ROC NOx Exhaust Brakes Tires
50 mph 223.1 8.58 45.76 -- 0..95 0.95
Daily Threshold* 550 75 100 150
Based on 6,170 trips/day and average trip length of 7 miles, using EMFAC7G Model
provided by California Air Resources Board. Assumes catalytic light autos at 75°F. *
Operational thresholds provided by SCAQMD for assistance in determining the
significance of a project and the need for an EIR.
As demonstrated above, the operational impacts associated with air quality on the project site are
expected to be less than significant.
The Coachella Valley is a non -attainment area for PM10 (particulate matter of 10
microns or smaller). The construction of the proposed project has the potential to
generate dust, which could 'contribute to the PM10 problem in the area. In order to
control PM10, the City has imposed standards and requirements on development to
control dust. The applicant will be required to submit such a plan prior to initiation of any
1 Visual Impact Simulations, The Keith Companies, December 2001.
2 "La Quinta Gateway Traffic Impact Analysis," prepared by Urban Crossroads, December
2001.
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earth moving activity at the site. In addition, the potential impacts associated with PM10
can be mitigated by the mitigation measures below.
1. Construction equipment shall be properly maintained and serviced to minimize
exhaust emissions.
2. Existing power sources should be utilized where feasible via temporary power
poles to avoid on -site power generation.
3. Construction personnel shall be informed of ride sharing and transit opportunities.
4. Cut and fill quantities will be balanced on site.
5. Any portion of the site to be graded shall be pre -watered to a depth of three feet
prior to the onset of grading activities.
6. Watering of the site or other soil stabilization method shall be employed on an on-
going basis after the initiation of any grading activity on the site. Portions of the
site that are actively being graded shall be watered regularly to ensure that a crust
is formed on the ground surface, and shall be watered at the end of each work day.
7. All disturbed areas shall be treated to prevent erosion until the site is constructed
upon. Pad sites which are to remain undeveloped shall be seeded with either a
desert wildflower mix or grass seed, or chemical stabilizer.
8. Landscaped areas shall be installed as soon as possible to reduce the potential for
wind erosion. Perimeter landscaping on Avenue 52 and Jefferson Street, and the
retention basin landscaping shall be completed with the first phase of
development.
9. SCAQMD Rule 403 shall be adhered to, insuring the clean up of construction -
related dirt on approach routes to the site.
10. All grading activities shall be suspended during first and second stage ozone
episodes or when winds exceed 25 miles per hour.
11 All buildings on the project site shall conform to energy use guidelines in Title 24
of the California Administrative Code.
With the implementation of these mitigation measures, the impacts to air quality from
buildout will not be significant.
IV. a)
The proposed project is within the mitigation fee area for the Coachella Valley Fringe -
toed Lizard Habitat Conservation Plan, and will be required to pay fees to mitigate the
potential impact on this species. The payment of the fees serves to mitigate the impacts to
a less than significant level.
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V.b)&d)
Several cultural resource studies were completed for the subject property. 3 The surveys
included extensive testing and the excavation of a cremation site. The work done on the
site to date has been comprehensive, but additional resources may be buried within the
project area. As a result, to ensure that the potential impacts to cultural resources are
mitigated, the following mitigation measure shall be implemented:
1. During any and all earth moving activities on any portion of the project site, a
qualified archaeological monitor shall be present. The monitor shall be
empowered to stop or redirect activities on the site should a resource be identified.
A final report shall be filed with the Community Development Department prior
to issuance of a certificate of occupancy for any building on the project site.
VI. a) ii)
A geotechnical investigation was completed for the project site.4 The site occurs in a
seismic Zone IV. The site, as with the balance of the City, will be subject to strong
ground shaking during a seismic event. The City has implemented standards in the
Uniform Building Code to ensure the highest construction standards are applied to protect
against seismic hazard. These standards are expected to ensure that impacts associated
with seismic ground shaking are reduced to a less than significant level.
IX. b)
The proposed General Plan Amendment and Change of Zone will change the land uses
on the project site from High Density Residential and Park to Tourist Commercial,
Medium Density Residential, and Park. The surrounding land use designations include
Park, Low Density Residential and Watercourse. The change in land use represents a
natural extension of the land use plan, insofar as it places more intense land use (Tourist
Commercial) at the intersection of Miles and Washington, and steps down the land use
intensity as it proceeds easterly. The Medium Density Residential will be an effective
buffer to the existing and future low density development to the east and south. The
existing High Density Residential designation is a relatively intense land use, which
would not have been buffered from the Low Density development to the east. The
proposed General Plan and Change of Zone will therefore represent a less than significant
impact on the land use pattern in the City.
3 "Archaeological Monitoring Report, Miles Avenue Borrow Site," prepared by CRM Tech,
July 2001; "Final Report Archaeological Mitigation of Project Effects to a Native American
Cremation Found on Parcel Map No. 26860," prepared by CRM Tech, February 2001; "Final
Report Archaeological Testing and Site Evaluation on Parcel Map No. 26860," prepared by
CRM Tech, June 2000; "Phase I Archaeological Assessment of 54.65 Acres at the Southeast
Corner of Washington Street and Miles Avenue," prepared by Archaeological Advisory Group,
June 1999.
4 "Geotechnical Engineering Report," prepared by Earth Systems Southwest, November 2001.
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XI. a)
A noise study was completed for the proposed project.5 The project site is currently
subject to high noise levels, and will continue to be impacted by noise as the project build
out. The noise levels will not be reduced to City standards without mitigation.
XIII. a)
In order to achieve acceptable noise levels for the hotels and townhomes on the subject
property, the noise study proposes several setback areas for the construction of sound
walls, depending on the site design. These mitigation measures include sound walls
and/or berms ranging from 0 to 10 feet in height, and are variable depending on the finish
grade of the individual sites within the project. With the implementation of the mitigation
measures included in the noise study, however, noise levels on the site at buildout can be
reduced to an acceptable level. Since no Site Development Permit is proposed at this time
for any portion of the site, and specific mitigation cannot therefore be evaluated, the
following mitigation measures shall be implemented:
1. Any site development permit submitted for any portion of the site shall either:
a) Demonstrate conformance with the mitigation measures provided in the
"Revised Preliminary Acoustical Analysis" prepared by Gordon Bricken
& Associates on December 6, 2001; or
b) Submit a noise study specifically prepared for that site development
permit which demonstrates that the noise levels can be reduced on the site
to the noise standards in effect at the time of submittal of the application.
The proposed development will have a less than significant impact on public services. All
areas of the proposed Specific Plan will be served by the County Sheriff and Fire
Department, acting under City contract. Site development will generate property tax,
transient occupancy tax and sales taxes which will offset the costs of added police and
fire services.
The project will be required to pay the mandated school fees as development occurs.
These fees mitigate the students generated, and offset the impacts to schools.
The collection of property tax, and the generation of sales tax will generate revenues to
the City to offset the added costs associated with the provision of municipal services. The
project will be required to participate in the City's Impact Fee Program, which helps to
offset roadway improvement costs.
XV. a)
A traffic study was conducted for the proposed project.6 The study found that buildout of
the proposed project would generate up to 6,170 average daily trips, of which 310 would
5 "Revised Preliminary Acoustical Analysis," prepared by Gordon Bricken & Associates,
December 2001.
6 "La Quinta Gateway Traffic Impact Analysis," prepared by Urban Crossroads, December
2001.
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occur during the AM peak, and 465 during the PM peak hour. The volume generated by
the proposed project, combined with the growth in traffic volumes on City streets from
other project in the area resulted in recommended mitigation measures in the study in
order to maintain City level of service standards. These mitigation measures are
enumerated below:
Miles Avenue and Washington Street shall be constructed to their full half -width
right-of-way with development of the first phase of the project.
2. A traffic signal shall be installed at the intersection of Seeley Drive and Miles
Avenue in conjunction, as warranted.
3. Access to the project from Washington Street shall be limited to right -in, right -out
only.
4. Left turn pocket on Seeley Drive, accessing westbound Miles Avenue, shall be a
minimum of 100 feet in length. Left turn pocket on westbound Miles Avenue,
accessing southbound Seeley Drive, shall be a minimum of 150 feet in length.
With the implementation of these mitigation measures, impacts of the project on the
City's circulation system shall be less than significant.
XVI. a)-f)
The buildout of the site will require service from utility providers. The overall impacts on
these services is not expected to be significant, insofar as these suppliers will charge the
businesses and residents for their services, and provide improvements to these services as
needed. In addition, connection fees will be required at construction of any project. These
fees and charges will mitigate the potential impacts to a less than significant level.
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EXHIBIT "C"
MITIGATION MONITORING PROGRAM
PROJECT MONITORING CHECKLIST
(CEQA Mitigation Measures)
CITY OF LA QUINTA
MONITORING PROGRAM FOR CEQA COMPLIANCE
DATE: December 5, 2001
ASSESSORS PARCEL NO.:
CASE NO.: GPA 2001-083, ZC 2001-105, PROJECT LOCATION:
SP 2001-055
EA/EIR NO: 2001-436 APPROVAL DATE:
APPLICANT: City of La Quinta
Southeast corner of Washington Street
and Miles Avenue
In Process
THE FOLLOWING REPRESENTS THE CITY=S MITIGATION MONITORING PROGRAM IN
CONNECTION WITH THE MITIGATED NEGATIVE DECLARATION FOR THE ABOVE CASE NUMBER
SUMMARY
RESPONSIBLE FOR
TIMING
CRITERIA
COMPLIANCE
DATE
MITIGATION
MONITORING
CHECKED BY
MEASURES
Iii. AIR QUALITY
Maintain construction
Contractor.
Project Construction.
SCAQMD standards.
equipment.
Utilize temporary power.
City Engineer.
Prior to issuance of
IID standards.
grading permits.
Balance cut and fill on site.
City Engineer.
Project Construction.
Municipal Code.
Pre -water and stabilize
Building Department.
Prior to issuance of
PM 10 Management
soils.
building permits.
Plan.
Provide alternative
Community
Prior to the issuance of
TDM ordinance.
transportation.
Development
grading permits.
Department.
V. CULTURAL RESOURCES
MF.AgITRF.:
Archaeological monitor to
Community
During earth moving.
City standards for
be on site during earth
Development and
cultural resource
moving.
Public Works
analysis.
Departments.
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SUMMARY
RESPONSIBLE FOR
TIMING
CRITERIA
COMPLIANCE
DATE
MITIGATION
MONITORING
CHECKED BY
MEA
URES
XI. NOISE
Conform to December 6,
Community
Site Development
Project review,
2001 Gordon Bricken &
Development
Permit review Plan
inspection.
Associates noise
Department, Building
check.
miti tion measures.
Department.
Alteratively,
submit
Community
Site Development
Project review.
revisednoise
analysis,
Development
Permit review.
confo
ing to City
Department.
stand
ds.
XV.
IRAFFIC AND CIRCULATION
Construct
Miles &
City Engineer.
Project Construction.
Inspection.
Wash)ngton
to ultimate
right-pf--ways.
Install
traffic signal at
City Engineer.
Construction or
Plan check.
Seeley
and Miles.
warrants.
Limit
access on
City Engineer.
Plan Check.
City standards for
Washington
to right -in,
access.
right -out.
Left
in pockets to be 100
City Engineer.
Plan Check.
City standards for
foot minimum
on Seeley to
roadway
Miles
and 150 foot
improvements.
minimum
on Miles to
Seeley.
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EXHIBIT "D"
PARK IMPROVEMENTS
The Park Improvements shall include all of the following:
1. Appropriate irrigation, turf, landscaping and walkways. All hardscape shall be handicap
accessible.
2. A 20,000 square foot dog park which contains:
(1) A six foot high wrought iron fence around the entire park perimeter, with the
wrought iron fencing 2 inches on center 2 feet from the bottom, and 4 inches on
center 4 feet from the lower section to the top, and which contains a top rail. The
fence shall be centered on a 4-inch mow curb.
(2) The park area is to be divided, by fencing that meets the specifications listed in
(1) above, into two sections, with one section containing approximately 12,000
square feet, and the other section containing approximately 8,000 square feet.
(3) A double -entry gate system leading to both sections that is handicap accessible.
(4) A 6-foot wide maintenance gate into each section.
(5) *Two drinking fountains, to be acquired from Most Dependable Fountains (1-
800-831-3606; Model #400SM), with one fountain to be installed in each section
of the dog park.
(6) *Two benches, to be acquired from Playworld Systems (1-800-669-2585; Model
#ZZXX1410), with one bench to be installed in each section of the dog park.
(7) *Two shade structures to be installed over the benches described in (6) above, to
be acquired from Shade Structures (1-800-50 SHADE) (must contain dimensions
of10'X10').
(8) *Two trash containers, to be acquired from Playworld Systems (Model
#ZZXX1414, ZZXX1415, ZZXX1418, or ZZXX8060), with one trash container
to be installed in each section of the dog park.
3. A 5,000 square foot playground, which contains:
(1) A handicap accessible entry into the play area.
(2) *One playground structure designed for ages 2-12 years, to be acquired from
Playworld Systems (Model #500-0103).
(3) *One arch swing with two bays, to be acquired from Playworld Systems (Model
#SWING ARCH 500, #SWING ARCH 500-ADD).
(4) One wood product, to be acquired from Sof Fall Engineered Wood Fiber with felt
layer and swing/slide mats to be installed to meet industry standards for safety.
(5) One spring animal, to be acquired from Playworld Systems (Model #ZZXX0585
Speedy Racer).
(6) *One play panel, to be acquired from Playworld Systems (Model #ZZPD-SHOP).
(7) *One drinking fountain, to be acquired from Most Dependable Fountains (Model
#440SM (Hi Lo)) to be installed near the playground structure.
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(8) *Two benches, to be acquired from Playworld Systems (Model #ZZXX1410), to
be installed facing the playground structure.
(9) *Two shade structures to be installed over the benches, to be acquired from Shade
Structures (must contain dimensions of 10' X 10').
(10) *One trash container, to be acquired from Playworld Systems (Model
#ZZXX1414, ZZXX1415, ZZXX1418, or ZZXX8060), to be installed near the
playground structure.
*Colors to be determined by City staff at time of order.
394/015610-0061 2
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EXHIBIT "E"
FORM OF EARLY ENTRY AGREEMENT
This Early Entry Agreement ("Agreement") is entered into as of , 2003, by
and among the CITY OF LA QUINTA, a municipal corporation and a charter city organized and
existing under the Constitution of the State of California ("City"), and CP DEVELOPMENT
LA QUINTA, LLC., a California limited liability company ("Developer"), with reference to the
following facts:
RECITALS:
A. City is the present owner of that certain property located in La Quinta, California,
identified as "Lot 6" on the site map attached hereto and incorporated herein as Exhibit "A".(the
"Property").
B. City and Developer have executed and entered into that certain Development
Agreement, with a Reference Date of , 2003, ("Development
Agreement") pursuant to which Developer agrees, among other obligations, to enter upon the
Property and construct and install the "Park Improvements" as described in Exhibit E to the
Development Agreement.
C. Pursuant to its obligation under the Development Agreement to construct and
install the Park Improvements on the Property, Developer has now requested the right to enter
onto and about the Property to perform the Park Improvements (hereinafter, the "Permitted
Work") and City is willing to allow such entry on the terms and conditions hereinafter specified.
AGREEMENT:
NOW, THEREFORE, in consideration of the covenants and agreements contained herein
and other valuable consideration, the sufficiency and receipt of which are hereby acknowledged
by the parties hereto, the parties covenant and agree as follows:
1. Grant of License. City hereby grants to Developer and its employees, agents,
consultants, and contractors ("Related Parties") a license for the term set forth in Paragraph 3
("License") to enter upon the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday
through Friday, for the purposes of the Permitted Work. Notwithstanding the above, at least
forty-eight (48) hours prior to any of the Related Parties' first entry onto the Property to
commence the Permitted Work, Developer shall notify City of its intention of the same, and shall
thereafter provide such notice before again entering the Property if there is an interruption of
such initial entry for a period of even (7) consecutive days (excluding interruptions for events of
enforced delay as defined in Section 8.2 of the Development Agreement). Said notice shall be
provided by facsimile, addressed to the person listed in Section 8.8 hereof at the number
provided therein. City may reject any proposed entry by providing telephonic notification to
Developer to the person listed in Section 8.8 hereof, at the number provided therein, at any time
prior to the time of the proposed entry.
City has full right, title and authority to grant Developer the License for the Permitted
Work, and no third party permission or consent is needed in connection therewith. Such License
394/015610-0061 3
390243.13 a12/17/03
shall be non -revocable for the Term defined in Paragraph 3 below, except as otherwise set forth
herein. City specifically agrees that Developer shall have access to and be entitled to perform
the Permitted Work on all portions of the Property, provided, however, that neither Developer
nor any of the Related Parties shall interfere with any other real or personal property, or enter
upon any other real property, without first obtaining the written consent of the owner(s) of such
other real or personal property.
2. City's Authority to Revoke. City may revoke this License upon two (2) days
written notice to Developer delivered in accordance with Subparagraph 8.8 below in the event:
(i) in the reasonable judgment of City, such revocation is necessary to protect the public health,
safety, or welfare pursuant to the exercise of City's police powers; or (ii) Developer is in
violation of the terms of this Agreement or any applicable law, statute, ordinance, rule, or
regulation pertaining to the Permitted Work or Developer's or the Related Parties' entry upon the
Property pursuant to this Agreement, and Developer has failed to cure such violation within two
(2) days following Developer's receipt of notice of such violation from City.
3. Term. Unless earlier revoked or terminated pursuant to the provisions of this
Agreement, the term of the License shall commence on full execution hereof and shall terminate
on the earlier of (i) City's final inspection of and approval of the Permitted Work, or (ii) one
hundred twenty (120) days from the date hereof.
4. Repair and Restoration of Property. Developer shall repair any damage it causes
to the Property in the course of performing the Permitted Work pursuant hereto and shall, except
for the actual Permitted Work allowed hereby, restore the Property to the condition existing prior
to Developer's or Related Parties' entry onto the Property, unless this requirement is waived by
the City Manager or the Community Development Director in his or her sole and absolute
discretion.
5 Compliance with Laws. Developer shall obtain, at is sole cost and expense, all
governmental permits and authorizations required by any governmental agencies for the
Permitted Work. Developer shall comply with, and shall cause all of its Related Parties to
comply with, all applicable governmental laws, rules, regulations and requirements governing
the Permitted Work. Prior to Developer's or any of the Related Parties' entry onto the Property
to perform any of the Permitted Work, Developer shall have prepared, obtained approval from
the City thereof, and implemented, a dust control program.
6. Indemnity. Developer shall protect, defend, indemnify and hold harmless City
and the La Quinta Redevelopment Agency ("Agency") and their respective officers, officials,
members, employees, agents, and representatives (any of the foregoing shall be known
individually as "Indemnitee" and collectively as "Indemnitees"), and each of them, jointly and
severally, against and from any and all claims, demands, causes of action, damages, costs,
expenses, losses and liabilities, at law or in equity, of every kind or nature whatsoever, including
attorneys' fees and expert witness fees (hereinafter "Claims"), brought in connection with any
death or personal injury to any person or persons or damage or destruction of any property
arising out of or in any manner directly or indirectly connected with the entry upon the Property
by Developer or any of its Related Parties or the activities on the Property (including but not
limited to the Permitted Work) by Developer or any of its Related Parties, but excluding from the
foregoing any Claims resulting from environmental contamination of the Property or other
394/015610-0061 4
390243.13 a12/17/03
defects on the Property existing prior to Developer's entry thereon and not otherwise caused by
Developer or any of the Related Parties. The foregoing indemnification shall also cover:
(a) any mechanics' or materialmen's liens, claims, demands, actions or suits
arising (directly or indirectly) from (i) any work performed or materials supplied to or for
Developer, or (ii) any activities of any of its Related Parties on or relating to the Property
(including, without limitation, any claims by any of such Related Parties); and
(b) any costs of removing Developer or its Related Parties from the Property
after the expiration of the term hereof unless Developer is otherwise entitled to be on the
Property at such time under this Agreement.
7. Insurance.
(a) Before entering the Property for any purpose, Developer shall cause the
insurance required under this paragraph to be issued and thereafter to be maintained until one (1)
year following the end of the Term. Developer shall procure and maintain:
(1) A policy of commercial general liability insurance written on a per
occurrence basis in an amount not less than: (i) for death and bodily injury, either (A) a
combined single limit of Three Million Dollars ($3,000,000) or (B) Three Million Dollars
($3,000,000) per person and Three Million Dollars ($3,000,000) per occurrence, and Three
Million Dollars ($3,000,000) in the aggregate, and (ii) for property damage, Three Million
Dollars ($3,000,000) per occurrence.
(2) A policy of worker's compensation insurance in such amount as
will fully comply with the laws of the State of California and which shall indemnify, insure, and
provide legal defense for both the Developer and City against any loss, claim or damage arising
from any injuries or occupational diseases occurring to any worker employed by or any persons
retained by Developer in the course of carrying out the work or services contemplated in this
Agreement.
(3) A policy of comprehensive automobile liability insurance written
on a per occurrence basis in an amount not less than either (i) bodily injury liability limits of
Three Million Dollars ($3,000,000) per person and Three Million Dollars ($3,000,000) per
occurrence, and property damage liability limits of Three Million Dollars ($3,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the aggregate or (ii) combined single limit
liability of Three Million Dollars ($3,000,000). Said policy shall include coverage for owned,
non -owned, leased, and hired cars.
(b) The following additional requirements shall apply to all of the above
policies of insurance:
(1) All of the above policies of insurance shall be primary insurance
and, except the Worker's Compensation insurance, shall name City, the Agency, and their
respective officers, officials, members, employees, agents, and representatives as additional
insureds.
394/015610-0061 5
390243.13 a12/17/03
(2) The insurer shall waive all rights of subrogation and contribution it
may have against City, Agency, and their respective officers, officials, members, employees,
agents, and representatives, and their respective insurers.
(3) All of said policies of insurance shall provide that said insurance
may not be amended or cancelled without providing thirty (30) days' prior written notice to City
and Agency.
(4) The policies of insurance required by this Agreement shall not
require Developer to meet a deductible of more than Twenty -Five Thousand Dollars ($25,000)
unless approved in writing by the City Manager, or his or her designee, in his or her sole and
absolute discretion.
(c) In the event any of said policies of insurance are cancelled, the Developer
shall, prior to the cancellation date, submit new evidence of insurance in conformance with this
Section to the City Manager, or his or her designee.
(d) Not later than the date of this Agreement, Developer shall provide the City
Manager with Certificates of Insurance or appropriate insurance binders evidencing the above
insurance coverages and said Certificates of Insurance or binders shall be subject to the
reasonable approval of the City Manager, or his or her designee.
(e) Developer agrees that the provisions of this Section shall not be construed
as limiting in any way Developer's indemnity obligations set forth in Section 6 or the extent to
which Developer may be held responsible for the payment of damages to any persons or property
resulting from the Developer's activities or the activities of any person or persons for which the
Developer is otherwise responsible.
8. Miscellaneous.
8.1 Authori. Each signatory hereto warrants to the other party that it has
authority to sign on behalf of the party for whom it purports to sign.
8.2 Attorney's Fees. In the event any party hereto brings suit to enforce the
terms of this Agreement or on account of breach hereof, the party not prevailing in such suit shall
pay all reasonable costs and expenses incurred by the other party in such suit, including, without
limitation, court costs, attorneys' fees, and expert witness fees.
8.3 Entire A reg ement. This Agreement sets forth the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior discussions,
negotiations, understandings or agreements relating thereto.
8.4 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement.
8.5 Litigation Matters. The Municipal and Superior Courts of the State of
California in the County of Riverside shall have the exclusive jurisdiction of any litigation
394/015610-0061 6
390243.13 a12/17/03
between the parties arising out of this Agreement. This Agreement shall be governed by, and
construed under, the laws of the State of California. Service of process on City shall be made in
the manner required by law for service on a public entity. Service of process on Developer shall
be made in any manner permitted by law and shall be effective whether served within or outside
of California.
8.6 Non -liability of City Officers and Employees. No officer, official,
member, employee, agent, or representative of City shall be personally liable to Developer, or
any successor or assign of same, in the event of any default or breach by City, or for any amount
which may become due to Developer, or any successor or assign of same, or for breach of any
obligation of the terms of this Agreement.
8.7 Covenant Against Discrimination. Developer covenants for itself, its
heirs, executors, assigns, and all persons claiming under or through it, that there shall be no
discrimination against any person on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the performance of this Agreement.
8.8 Notices. Unless other sections of this Agreement allow certain specific
notices to be given by other means, all notices required to be delivered under this Agreement or
under applicable law shall be delivered by one of the following means: (a) personal delivery; (b)
delivery by United States mail, prepaid, certified, return receipt requested; (c) delivery by
reputable document delivery service that provides a receipt showing date and time of delivery; or
(d) delivery by facsimile provided the sender receives confirmation the fax was received.
Notices personally delivered or delivered by a document delivery service shall be effective upon
receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the second business day
following dispatch. Notices delivered by facsimile shall be effective upon receipt provided that
any faxed notices which are transmitted at any time other than 8:00 a.m. to 4:30 pm Monday
through Friday (excluding legal holidays) shall be deemed transmitted as of the next business
day. Notices shall be delivered to the following addresses:
To City: City of La Quinta
Attn: Community Development Director
78-495 Calle Tampico
La Quinta, CA 92253
Telephone: (760) 777-7000
Facsimile: (760) 777-1233
With a copy to: Rutan & Tucker, LLP
Attn: M. Katherine Jenson, Esq.
611 Anton Boulevard, 14th Floor
Costa Mesa, CA 92626-1998
Telephone: (714) 641-5100
Facsimile: (714) 546-9035
394/015610-0061 7
390243.13 a12/17/03
To Developer: CP Development La Quinta, LLC
Attn: Richard Oliphant
44-139 Monterey Avenue, Suite 201
Palm Desert, CA 92260
Telephone: (760) 776-9900
Facsimile: (760) 776-9971
With a copies to: Genesis Hotel Development, LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Telephone: (760) 360-7886
Facsimile: (760) 345-7175
and Selzer, Ealy, Hemphill & Blasdel, LLP
777 E. Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill, Esq.
Telephone: (760) 320-5977
Facsimile: (760) 320-9507
Changes in the address to be used for receipt of notices shall be effected in accordance with this
Paragraph 8.7.
Agreement.
8.8 Time of Essence. Time is of the essence in the performance of the
[end — signature page follows]
394/015610-0061 8
390243.13 a12/17/03
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the date first above -written.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
UA
Richard R. Oliphant
Its: President
"CITY"
CITY OF LA QUINTA
By:
City Manager
394/015610-0061 9
390243.13 a12/17/03
EXHIBIT "A"
TO EARLY ENTRY AGREEMENT
SITE MAP
The Site Map is not a tract map and the parcels depicted there are not legal parcels. Upon
Developer's preparation of a tract map that creates legal parcels substantially consistent with the
Site Map, Developer shall prepare legal descriptions for each of the Suites Hotel Parcel, the
Casitas Development Parcel(s), the Villas Residential Development Parcel, the Cluster/Perimeter
Residential Development Parcel, the Medical Office/Surgical Facility Parcel(s), and the
Sanctuary Villas Parcel(s), and Agency and Developer shall cooperate to attach such legal
descriptions to any document where such legal descriptions are required.
LQTS LAND USE
LOT - RESTAURANT
LOT 2 - RESORT CASITAS *LOT
440M
0.34
LOT 3 - RESORT CASITAS
LOT 4 - RESORT CASITAS
LOT 5 - RESIDENTIAL
*LOT 8 PARK
LOT 7 - RESIDENTIAL
LOT 8. THE SANCTUARY
LOT THE SANCTUARY
LOT ID - MEDICAL OFFICE BUILDINGS
LOT 11 MEDICAL OFFICE BUILDINGS
LOT 12 ' MEDICAL OFFICE BUILDINGS
LOT 13 " RESTAURANT
LOT 44' HOTEL
*LOT H. * LOST .r
oa'«I' MILES AVENUE 0.12 «'
LOT 3
1 1 34°`2� 1.
..1.
LOT 4
2.91..,.
LOT 14
14504
—..1.
*LOT •C•�
0.33 «. Y
* LOT
0.13
0.0
COMMON LOTS
LOT •A• - - - - - " -
LAND USE
MEDICAL OFFICE PARKING / LANDSCAPE
LOT •B• - - - - - - -
SEELEY DRIVE
* LOT •C- - - - - - -
201 PARKWAY (WASHINGTON STREET)
* LOT `D- - - - - - - "
-CITY LANDSCAPE ENTRY
* LOT 'E- - - - - - - -
20' PARKWAY (WASHINGTON STREET)
LOT •F• - - - - - - -
WELLSITE
*LOT •0• - - - - - - -
WELLSITE (N.A.P.1
* LOT •H• - - - - - - -
20' PARKWAY (MILES AVENUE)
*LOT •I• - " . ' ' ' -
20' PARKWAY (MILES AVENUE)
LOT 2
W34 V.
2.27 ae.
WLD
LOT .,1, LOT 12
.. 311�«l.
LOT 11
53441 «I.A•
LOT 9
48M 0
* Thm pamis are not beingConveyed by
the La QuinoM Redevelopment AB—y
They we depicted on this Site Map for
convenience of refamw Only.
U
*LOT •O•
+f
2�.n «/.
LOOT 5
2.1°«.
j
X4
W g
1 LOT 8
2.40
W
J Oy
4d
PJ
O
4
a999 �l.
J
U
LOT163122 cf.
Se
K a
40
N.T.S.
NOVEMBER 2% 2003
AGENCY CONSENT TO RECORDATION
THE LA QUINTA REDEVELOPMENT AGENCY HEREBY CONSENTS TO THE
RECORDATION OF THE FOREGOING DEVELOPMENT AGREEMENT AGAINST THE
REAL PROPERTY DESCRIBED IN EXHIBIT "A" TO SAID DEVELOPMENT
AGREEMENT.
STATE OF CALIFORNIA )
) ss
COUNTY OF )
,=
LA QUINTA REDEVELOPMENT AGENCY
Its:
before me,
personally appeared
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
394/015610-0061
390243.13 a12/17/03
ATTACHMENT NO. 14A
FORM OF OPTION AGREEMENT
[SEE FOLLOWING PAGES]
882/015610-0061
380889.09 a]2/17/03
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDING USE)
(EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383)
OPTION AGREEMENT
NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION
CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS OPTION AGREEMENT ("Option Agreement") is made this _ day of ,
2003 (the "Effective Date"), by CP DEVELOPMENT LA QUINTA, LLC, a California limited
liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency").
RECITALS
A. Developer has entered into a Disposition and Development Agreement ("DDA")
dated , 2003 (the "DDA Date") with the La Quinta Redevelopment Agency
("Agency"), pursuant to which Agency conveyed to Developer that certain real property located
southeast of the Miles Avenue and Washington Street intersection, in the City of La Quinta,
County of Riverside, State of California (the "Site"). All defined terms used herein shall have
the same meaning as set forth in the DDA unless otherwise stated. The Site is legally described
in Exhibit "A" attached hereto and incorporated herein.
B. As a condition to the Agency's conveyance of the Site to Developer, Developer
was required to grant to Agency an option to repurchase the Site, or a portion thereof, from
Developer, if (i) Developer fails to commence, continuously proceed with, or complete
construction within certain specified time frames, or (ii) Developer transfers the Site, or portion
thereof, in violation of the terms of the DDA, all as further described herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and incorporating the above recitals and all of the terms and
conditions contained in the DDA, Developer hereby grants to Agency the following repurchase
options:
882/015610-0061
380889.09 a]2/17/03
Repurchase Option I - Failure to Commence Construction
Subject to Section 4(f), Developer hereby grants to Agency an exclusive option to
repurchase (i) the Site, or any portion thereof, if Developer fails to commence construction of the
Project within one hundred thirty (130) days after the Effective Date; or (ii) any of the individual
Parcels then -comprising the Site on which Developer has failed to commence construction (as
defined below) of the applicable Phase of Development ("Option I Parcel(s)") within the times
set forth in the Commencement and Completion Schedule attached hereto and incorporated
herein as Exhibit `B" (collectively, "Repurchase Option I"). Agency's Repurchase Option I
pursuant to clause (ii) above shall also include the option to purchase any "Related Parcel" to the
Option I Parcel(s) on which Developer has not yet commenced construction. For the purposes of
this Option Agreement, (a) the term commence construction" shall mean Developer's
substantial commencement, and thereafter uninterrupted continuation, of excavation work or
physical construction on the Site or applicable Parcel, subject to Section 4(f) below, but shall not
include any grading work or utility installation that was completed by Developer prior to the
Effective Date hereof, and (b) the term "Related Parcel" shall mean any Parcel that has a
substantially similar use as another Parcel, as set forth in Exhibit "C", which is attached hereto
and incorporated herein by this reference.
In the event of Developer's failure to commence construction of the Project or a specific
Phase of Development within the time period described above, Agency shall be entitled to
exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days
following the expiration of the time period described above (after expiration of the cure period
described in Sections 4(b) and 4(c) hereof) ("Repurchase Option I Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option I by giving written notice to Developer
("Agency's Notice of Option 1 Exercise"), in accordance with Section 5 of this Option
Agreement, prior to the expiration of the Repurchase Option I Period. Notwithstanding anything
herein to the contrary, (i) failure of Agency to exercise the Repurchase Option I with respect to
Developer's failure to timely commence construction of the Project shall not constitute a waiver
by Agency of any remedies it may have under the terms of the DDA or of any other agreement
for Developer's failure to timely commence construction of the Project, and shall not constitute a
waiver of Agency of its exercise of this Repurchase Option I with respect to Developer's failure
to timely commence construction of a particular Phase of Development; and (ii) failure of
Agency to exercise the Repurchase Option I with respect to Developer's failure to timely
commence construction of a particular Phase of Development shall not constitute a waiver by
Agency of any remedies it may have under the terms of the DDA or of any other Agreement for
Developer's failure to timely commence construction of that Phase of Development and shall not
constitute a waiver of Agency of its exercise of this Repurchase Option I with respect to
Developer's failure to timely commence construction of any other Phase of Development. Any
Agency waiver as described in the preceding sentence shall not be deemed a waiver of any other
Developer breach of the terms or conditions of the DDA.
882/015610-0061
380889.09 a12/17/03 -2-
(b) Repurchase Price - Repurchase Option I
Agency's repurchase price for the Site, or portion thereof, or for the Option I Parcel(s)
and any Related Parcels Agency is entitled, and elects, to purchase ("Repurchase Option I
Repurchase Price"), shall be seventy-five percent (75%) of Developer's Purchase Price for the
Site, portion thereof, or applicable Parcel(s), as set forth in Exhibit "D", which is attached hereto
and incorporated herein by this reference.
2. Repurchase Option II - Failure to Continuously Proceed With or Complete
Construction
Developer hereby grants to Agency an exclusive option to repurchase any individual
Parcel then -comprising the Site ("Option II Parcel(s)"), and any Related Parcel(s) to the Option
II Parcel(s) on which Developer has not yet commenced construction if, after commencement of
construction of the Phase of Development to be constructed on the Option II Parcel(s),
Developer fails to continuously proceed with, and complete, construction of such Phase of
Development on the Option II Parcel(s) (collectively, "Repurchase Option II"). For purposes of
this Option Agreement, "continuously proceed with construction" shall be defined as
construction that is interrupted, if at all, for periods of no longer than thirty (30) days; and
"completion of construction of the Phase of Development" shall be defined as City's final
inspection of the Phase of Development by the date set forth in the Commencement and
Completion Schedule, subject to Section 4(f) below ("Completion Deadline"). In the event of
Developer's failure to continuously proceed with construction, or to complete construction of
any Phase of Development by the Completion Deadline, Agency shall be entitled to exercise, but
is not obligated to exercise, the foregoing option for a period of ninety (90) days following the
applicable Completion Deadline (after expiration of the cure period described in Sections 4(b)
and 4(c) hereof) ("Repurchase Option II Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option II by giving written notice to Developer, in
accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase
Option II Period. Failure of Agency to exercise the Repurchase Option II with respect to a
particular Phase of Development shall constitute a waiver by Agency of Developer's breach of
its obligation to continuously proceed with and complete construction of that Phase of
Development within the time set forth in the Commencement and Completion Schedule. Any
Agency waiver as described in the preceding sentence shall not be deemed a waiver of
Developer's obligation to continuously proceed with and complete construction of any other
Phase of Development within the time set forth in the Commencement and Completion
Schedule, or of any other Developer breach of the terms or conditions of the DDA.
(b) Determination of Repurchase Price - Repurchase Option II
Agency's repurchase price for the Option II Parcel(s) and any Related Parcel(s) Agency
is entitled, and elects, to purchase ("Repurchase Option II Repurchase Price"), shall be the sum
of (a) Developer's Purchase Price for the Option II Parcel(s) plus thirty-three and three -tenths
percent (33.3%) of "Developer's Construction Costs," and (b) seventy-five percent (75%) of
882/015610-0061
380889.09 a12/17/03 -3-
Developer's Purchase Price for the Related Parcel(s) Developer is entitled, and elects, to
purchase. For purposes of this Option Agreement, the term "Developer's Construction Costs"
shall mean, with respect to development of the Phase of Development to be constructed on the
Option II Parcel(s), the lesser of (i) construction costs actually incurred by Developer for
development of said Phase of Development from the DDA Date to the date Agency's exercises
this Repurchase Option II (the "Construction Period"), and (ii) the constructions costs for the
Construction Period set forth in Developer's Preliminary Budget, as approved by Agency as part
of Agency's approval of Developer's financing, in accordance with Section 311 of the DDA,
which costs may include (i) the amount paid by Developer to the contractor or contractors
performing the works of improvement; (ii) reasonable inspection and testing costs paid by
Developer to independent third party engineers or consultants in conjunction with said works of
improvement (but not including costs, fees, charges, or profits allocated to Developer's own
internal administrative, payroll, or overhead expenses or to any person or entity affiliated with
Developer; (iii) costs and fees paid by Developer to independent third party engineers or
consultants with respect to the planning, design, and engineering of the works of improvement
(but not including costs, fees, charges, or profits allocated to the Developer's own internal
administrative, payroll, or overhead expenses or to any person or entity affiliated with
Developer); and (iv) the costs and fees incurred by Developer, if any, to obtain financing for the
construction of the works of improvement.
3. Repurchase Option III - Transfer of the Site
Developer hereby grants to Agency an exclusive option to repurchase (i) the Site if, prior
to the time Agency issues a Release of Construction Covenants for any Phase of Development to
be constructed thereon, Developer transfers or suffers an involuntary transfer of the Site in
violation of the terms of the DDA; or (ii) any of the individual Parcels then -comprising the Site
(the "Option III Parcel(s)") and any Related Parcel(s) to the Option III Parcel(s) on which
Developer has not yet commenced construction if, prior to the time Agency issues a Release of
Construction Covenants for the Phase of Development to be constructed on the Option III
Parcel(s), Developer transfers or suffers an involuntary transfer of the Option III Parcel(s)
(collectively, "Repurchase Option III"). In the event of Developer's transfer of the Site or any
individual Parcels then -comprising the Site in violation of the DDA, Agency shall be entitled to
exercise, but is not obligated to exercise, the foregoing option for a period of ninety (90) days
following the transfer that gives rise to Agency's option under this Section ("Repurchase Option
III Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option III by giving written notice to Developer
("Agency's Notice of Option III Exercise"), in accordance with Section 5 of this Option
Agreement, prior to the expiration of the Repurchase Option III Period. Notwithstanding
anything herein to the contrary, (i) failure of Agency to exercise the Repurchase Option III with
respect to Developer's transfer or sufferance of an involuntary transfer of the Site shall not
constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of
any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site,
and (ii) failure of Agency to exercise the Repurchase Option III with respect to Developer's
transfer or sufferance of an involuntary transfer of a Parcel shall not constitute a waiver by
882/015610-0061
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Agency of any remedies it may have under the terms of the DDA or of any other agreement for
Developer's transfer or sufferance of an involuntary transfer of the Parcel, and shall not
constitute a waiver by Agency of its exercise of this Repurchase Option III with respect to any
other Parcel then -comprising the Site. Any Agency waiver as described in the preceding
sentence shall not be deemed a waiver of any other Developer breach of the terms or conditions
of the DDA.
(b) Repurchase Price - Repurchase Option III
Agency's repurchase price for the Site or for the Option III Parcel(s) and any Related
Parcels Agency is entitled, and elects, to purchase ("Repurchase Option III Repurchase Price")
shall be as follows:
i) In the event Developer has not yet commenced construction of the
Project or applicable Phase of Development at the time Agency exercises its Repurchase Option
III, Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as
set forth in Section 1(b) of this Option Agreement.
ii) In the event Developer has commenced construction of the Project
or applicable Phase of Development at the time Agency exercises its Repurchase Option III,
Agency's Repurchase Option III Repurchase Price shall be (1) for the Option III Parcel(s), the
Repurchase Option II Repurchase Price, as set forth in Section 2(b) of this Option Agreement,
and (2) for the Related Parcels Agency is entitled, and elects, to purchase, the Repurchase Option
I Repurchase Price, as set forth in Section 1(b) of this Option Agreement.
4. Additional Terms Applicable to the Repurchase Options
The following additional terms shall apply to Repurchase Option I, Repurchase Option II,
and Repurchase Option III:
(a) Successors and Assigns. The Repurchase Option I, Repurchase Option II,
and Repurchase Option III created hereby shall be irrevocable by Developer and, subject to any
subordination by Agency in accordance with paragraph (e) below, shall be binding upon the
successors and assigns of Developer.
(b) Developer's Right to Cure Certain Defaults. Notwithstanding anything
herein to the contrary, Agency shall not be entitled to exercise Repurchase Option I or
Repurchase Option II until Agency has provided a written notice to Developer regarding
Developer's failure to commence, continuously proceed with, or complete, construction of the
Project (with any of the above failures referred to hereinafter as an "Option Triggering Event"),
and Developer has not, within sixty (60) days after receipt of such notice, cured, corrected, or
remedied such Option Triggering Event, or, for those Option Triggering Events that cannot
reasonably be cured, corrected, or remedied within sixty (60) days, commenced to cure, correct
or remedy such Option Triggering Event within said sixty (60) day period, and diligently
prosecute the same to completion.
(c) Notice of Default to Mortgagee or Deed of Trust Holders, Right to Cure.
With respect to any mortgage or deed of trust granted by Developer, whenever the Agency may
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380889.09 a12/17/03 -5-
deliver any notice or demand to Developer with respect to an Option Triggering Event, the
Agency shall at the same time deliver a copy of such notice or demand to each holder of record
of any mortgage or deed of trust which has previously requested such notice in writing. Each
such holder shall (insofar as the rights granted by the Agency are concerned) have the right, at its
option, within sixty (60) days after the receipt of the notice, to cure or remedy or commence to
cure or remedy and thereafter to pursue with due diligence the cure or remedy of any such
default and to add the cost thereof to the mortgage debt and the lien of its mortgage. It is
understood that a holder shall be deemed to have satisfied the sixty (60) day time limit set forth
above for commencing to cure or remedy a Developer default which requires title and/or
possession of the Property (or portion thereof) if and to the extent any such holder has within
such sixty (60) day period commenced proceedings to obtain title and/or possession and
thereafter the holder diligently pursues such proceedings to completion and cures or remedies the
default.
(d) No Agency ag tion. Notwithstanding any covenant, term, or provision
in this Section 4 to the contrary, Agency shall not be obligated to exercise Repurchase Option I,
Repurchase Option II, or Repurchase Option III.
(e) Termination of Option Agreement. In the event Developer commences
and completes construction of any particular Phase of Development and Agency has not
exercised Repurchase Option I, Repurchase Option II, or Repurchase Option III, Agency shall
execute and record a termination of this Option Agreement with respect to the underlying Parcel
of said Phase of Development within fifteen (15) business days after the final and permanent
Certificate of Occupancy for the Phase of Development is issued by the City.
(f) Enforced Delay. Notwithstanding anything to the contrary herein, in
addition to specific provisions of this Option Agreement, performance by either parry hereunder
shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes;
lock -outs; riots; floods; earthquakes; fires; casualties; supernatural causes; acts of the public
enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority litigation; unusually severe weather; inability to secure
necessary labor, materials or tools; acts of the other party; acts or the failure to act of a public or
governmental agency or entity (except that acts or the failure to act of Agency shall not excuse
performance by Agency unless the act or failure is caused by the acts or omissions of
Developer); or any other causes beyond the reasonable control or without the fault of the party
claiming an extension of time to perform. In the event of such a delay (herein "Enforced
Delay"), the party delayed shall continue to exercise commercially reasonable efforts to
minimize the period of the delay. An extension of time for any such cause shall be limited to the
period of the Enforced Delay, and shall commence to run from the time of the commencement of
the cause, provided notice by the party claiming such extension is sent to the other party within
thirty (30) days following the commencement of the cause. The following shall not be
considered as events or causes beyond the control of Developer, and shall not entitle Developer
to an extension of time to perform: (i) Developer's failure to obtain financing for the Project or
for any Phase of Development, (ii) Developer's failure to negotiate agreements with prospective
tenants or users for the Project or for any Phase of Development, (iii) interest rates or (iv)
economic or market conditions. Times of performance under this Option Agreement may also
be extended by mutual written agreement by Agency and Developer. Agency's Executive
882/015610-0061
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Director shall also have the authority on behalf of Agency to administratively approve extensions
of time not to exceed a cumulative total of one (1) year.
(g) Subordination. The Agency agrees to subordinate Repurchase Option II
and Repurchase Option III to Developer's construction loan(s) for each Phase of Development
and to the deed of trust securing Developer's investor's loan for Developer's construction of the
Suites Hotel on the Suites Hotel Parcel, the Parcel 2 Casitas Development Component on Casitas
Parcel 2, the Parcel 3 Casitas Development Component on Casitas Parcel 3, and the Parcel 4
Casitas Development Component on Casitas Parcel 4, provided all of the following conditions
are met:
i) Loan Amount.
(1) for the Parcel A Medical Office/Surgical Facility
Component, the Parcel 1 Restaurant, the Parcel 5 Residential Development, the Parcel 7
Residential Development, the Parcel 8 Sanctuary Villas Component, the Parcel 9 Sanctuary
Villas Component, the Parcel 10 Medical Office/Surgical Facility Component, the Parcel 11
Medical Office/Surgical Facility Component, the Parcel 12 Medical Office/Surgical Facility
Component, and the Parcel 13 Restaurant, the maximum cumulative principal amount of the
construction loan for the applicable Phase of Development shall not exceed ninety percent (90%)
of the lender's appraised value of the Parcel on which said Phase of Development shall be
constructed, upon completion of the Phase of Development, which amount shall be verified in
writing to Agency Executive Director's reasonable satisfaction, and
(2) for the Suites Hotel, the Parcel 2 Casitas Development
Component, the Parcel 3 Casitas Development Component, and the Parcel 4 Casitas
Development Component, the maximum cumulative principal amount, collectively, of
Developer's construction loan plus Developer's investor's loan, shall not exceed ninety percent
(90%) of the lender's appraised value of the Parcel on which the applicable Phase of
Development shall be constructed, upon completion of the Phase of Development, which amount
shall be verified in writing to Agency Executive Director's reasonable satisfaction;
ii) Use of Loan Proceeds. The loan(s) shall obligate Developer to
expend loan proceeds for no other purpose than the applicable Phase of Development; and
iii) Notice and Agency's pportunity to Cure. The loan(s) shall
provide that any notice of a Developer breach or default shall also be sent to the Agency at the
address listed in Section 5 and that upon receipt of such notice, Agency shall have the right to
(A) cure the noticed breach or default, (B) negotiate with the lender regarding the noticed breach
or default, and (C) purchase the Site from Developer subject to the construction lender's deed of
trust, without the consent of Developer or the holder of the construction lender's deed of trust,
and that Agency's exercise of the foregoing rights shall not, in and of itself, give rise to any right
on the part of the lender to accelerate the amounts due under the loan.
(h) Agency's Investigation of Site. Agency shall have forty-five (45) days
after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase
Option I, Repurchase Option II, or Repurchase Option III to enter upon the Site (or applicable
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portion thereof) to conduct any tests, inspections, investigations, or studies of the condition of
the Site (or applicable portion thereof). Developer shall permit Agency access to the Site (or
applicable portion thereof) for such purposes. Agency's obligation to close "Escrow" (as defined
below) shall be subject to Agency's approval of any environmental and other site testing
conducted by Agency in Agency's discretion. Agency shall indemnify, defend, and hold
harmless Developer and its officers, directors, shareholders, employees, agents, and
representatives from and against all claims, liabilities, or damages, and including expert witness
fees and reasonable attorney's fees and costs, arising out of any such testing, inspection, or
investigatory activity on the Site (or applicable portion thereof).
(i) Escrow Provisions.
i) Within five (5) business days after Agency has exercised
Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), or as soon
thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow
company selected by Agency for the reconveyance of the Site (or applicable portion thereof) to
Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed
copy of this Option Agreement and a notice of exercise of option prepared by Agency are
delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and
Agency in writing of the date of the Opening of Escrow promptly following the opening of the
Escrow.
ii) Escrow shall close on or before the date that is ninety (90) days
after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of
Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency
("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of
Riverside, State of California. Possession of the Site, or portion thereof, shall be delivered to
Agency at the Close of Escrow.
iii) This Option Agreement, together with any standard instructions of
Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow
Holder as well as an agreement between Developer and Agency. In the event of any conflict
between the provisions of this Option Agreement and Escrow Holder's standard instructions, this
Option Agreement shall prevail.
iv) The Escrow shall be subject to Agency's approval of a then -current
preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary
title report that is (are) created concurrent with or after the close of escrow that conveyed the Site
from Agency to Developer shall be removed by Developer at its sole expense prior to the Close
of Escrow pursuant to this Section 4(i) unless such exception(s) is (are) accepted by Agency in
its sole discretion; provided, however, that Agency shall accept the following exceptions to title:
(i) current taxes not yet delinquent, (ii) matters affecting title existing on the date of recordation
of the Grant Deed to the Site (in the form of Attachment No. 4 to the DDA); and (iii) matters
shown as printed exceptions in the standard form ALTA policy of title insurance. In the event
the Site is encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally
instruct Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to
882/015610-0061
380889.09 a12/17/03 -8-
Developer through the foregoing Escrow. Any additional amount necessary to satisfy such
indebtedness shall be paid by Developer.
v) On or before 1:00 p.m. on the last business day preceding the
scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase
Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase
Option III Repurchase Price; (ii) one-half (1/2) of the escrow fees; (iii) the portion of the title
insurance premium attributable to any extra or extended coverages, or any additional charge
resulting from Agency's request that the amount of insurance be higher than the applicable of the
Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the
Repurchase Option III Repurchase Price; and (iv) any and all additional instruments or other
documents required from Agency (executed and acknowledged if appropriate) as may be
necessary in order to effect the transfer of the Site, or applicable portion thereof, to Agency. On
or before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer
shall deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half
(1 /2) of the escrow fees; and (iii) any and all additional instruments or other documents required
from Developer (executed and acknowledged if appropriate) as may be necessary in order to
effect the transfer of the Site, or applicable portion thereof, to Agency. Developer shall also be
required to pay for documentary tax stamps, recording fees, and for an ALTA standard form
owner's policy of title insurance in the amount of the Repurchase Option I Repurchase Price, the
Repurchase Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as
applicable), showing title vested in Agency free and clear of all liens and encumbrances except
those permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy
shall be a condition to the Close of Escrow. Any other costs and expenses shall be allocated
between the parties in the manner customary for a commercial property conveyance in Riverside
County.
vi) If, on or before the Closing Date, Escrow Holder has received all
of the documents and funds listed in paragraph (5) above, and Escrow Holder is in a position to
cause the Title Policy to be issued to Agency, and provided Agency has approved of the
condition of the Site, or applicable portion thereof, Escrow Holder shall close the Escrow by
taking the following actions: (i) recording the Agency Grant Deed in the office of the County
Recorder of the County of Riverside, California, and delivering the recorded Agency Grant Deed
to Agency; (ii) causing the Title Policy to be issued to Agency; and (iii) delivering the applicable
of the Option I Repurchase Price, the Option II Repurchase Price, or the Option III Repurchase
Price to Developer.
0) Agency's Right to Acquire the Site. Notwithstanding anything herein to
the contrary, upon Agency's exercise of Repurchase Option I, Repurchase Option II, or
Repurchase Option III, Developer's commencement to cure the default that led to Agency's
exercise shall not affect Agency's right to close the Escrow and acquire the Site (or applicable
portion thereof).
(k) Agency's Repurchase of Uncompleted Portions of the Property.
Notwithstanding anything herein to the contrary, in the event that as a result of Agency
exercising Repurchase Option II or Repurchase Option III Agency acquires Residential Parcel 5
and/or Residential Parcel 7, if Developer has obtained a Certificate of Completion from the City
'82/015610-0061
380889.09 a12/17/03 -9-
for one or more of the lots that comprise either of said Parcels, (i) the provisions of this Option
Agreement shall apply only to that portion of Residential Parcel 5 and/or Residential Parcel 7 (as
applicable) for which Certificates of Completion have not been issued ("Uncompleted Portion of
the Repurchase Property") and any calculations for determining the Repurchase Option II
Repurchase Price or the Repurchase Option III Repurchase Price (as applicable) shall be based
solely upon the Uncompleted Portion of the Repurchase Property, and (ii) Developer agrees to
cooperate with Agency to effect the subdivision of the Uncompleted Portion of the Repurchase
Property from the completed portions of Residential Parcel 5 and/or Residential Parcel 7 (as
applicable) (those portions of the Repurchase Property for which Certificates of Completion have
been issued).
5. Notices Demands and Communications Between the Parties
Formal notices, demands, and communications between Agency and Developer shall be
given either by (i) personal service, (ii) delivery by reputable document delivery service such as
Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the
United States mail, certified mail, postage prepaid, return receipt requested, addressed to:
To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
With a copy to: Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson, Esq.
To Developer: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
With copies to: Selzer, Ealy, Hemphill & Blasdell, LLP
777 Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill
and Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Notices personally delivered or delivered by document delivery service shall be deemed
effective upon receipt. Notices mailed in the manner provided above shall be deemed effective
on the second business day following deposit in the United States mail. Such written notices,
demands, and communications shall be sent in the same manner to such other addresses as either
party may from time to time designate by mail.
882/015610-0061
380899.09 a12/17/03 -10-
6. Agency's OQtion to Acquire Plans
If Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option
III in accordance with this Agreement, at the option of the Agency, which may be exercised in
the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed
assignment in a form reasonably acceptable to the Agency of the Developer's right to use all
plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps,
landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports,
grading plans and any other materials relating to (i) the construction of the Project on the Site or
(ii) if Agency acquires less than all of the Site, the construction of the Phases(s) of Development
applicable to the Parcels which the Agency is acquiring (the "Plans"), together with copies of all
of the Plans, as have been prepared for the development of the Site or applicable portion thereof
to date of the termination. Notwithstanding the foregoing, however, Developer does not covenant
to convey to the Agency the copyright or other ownership rights of third parties. Agency
understands and agrees that the assignment to Agency under this Section 6 is subject and
subordinate to any assignment which Developer may make to a lender providing financing for
the Project or applicable Phase of Development, and Agency agrees to execute any documents
required by such lender acknowledging and effectuating such subordination of Agency's rights
in and to the assignment. Agency's acquisition or use of the Plans or any of them shall be
without any representation or warranty by Developer as to the accuracy or completeness of any
such Plans, and Agency shall assume all risks in the use of the Plans.
7. Applicable Law and Forum; Attorneys Fees
The Municipal and Superior Courts of the State of California in the County of Riverside
shall have the exclusive jurisdiction of any litigation between the parties arising out of this
Option Agreement. This Option Agreement shall be governed by, and construed under, the laws
of the State of California. In addition to any other rights or remedies, either party may take legal
action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any
default, to compel specific performance of this Option Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Option
Agreement. The rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same
or different times, of any other rights or remedies for the same default or any other default by the
other party. Service of process on Agency shall be made in the manner required by law for
service on a public entity. Service of process on Developer shall be made in any manner
permitted by law and shall be effective whether served within or outside of California.
If either party to this Option Agreement is required to initiate or defend, or is made a
party to, any action or proceeding in any way connected with this Option 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.
892/015610-0061
380889.09 a12/17/03 -11-
8. Nonliabilily of Agency Officials and Employees
No officer, official, employee, agent, or representative of Agency shall be personally
liable to Developer or any successor in interest, in the event of any default or breach by Agency,
or for any amount which may become due to Developer or its successor, or for breach of any
obligation of the terms of this Option Agreement.
9. Nondiscrimination
Developer covenants for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination against any person on account of
race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this
Option Agreement or use of the Site.
10. Interpretation
The terms of this Option Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of the
authorship of this Option Agreement or any other rule of construction which might otherwise
apply. The Section headings are for purposes of convenience only, and shall not be construed to
limit or extend the meaning of this Option Agreement.
11. Entire Agreement
This Option Agreement integrates all of the terms and conditions mentioned herein, or
incidental hereto, and supersedes all negotiations or previous agreements between the parties
with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Option Agreement must be in writing and signed by
the appropriate authorities of the party to be charged, and all amendments and modifications
hereto must be in writing and signed by the appropriate authorities of Agency and Developer.
12. Counterparts
This Option Agreement may be executed in counterparts, each of which, after all the
parties hereto have signed this Option Agreement, shall be deemed to be an original, and such
counterparts shall constitute one and the same instrument.
13. Severability
In the event any section or portion of this Option Agreement shall be held, found, or
determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions
shall remain in effect, and the parties hereto shall take further actions as may be reasonably
necessary and available to them to effectuate the intent of the parties as to all provisions set forth
in this Option Agreement.
[END - SIGNATURES ON NEXT PAGE]
882/015610-0061
380889.09 a12/17/03 -12-
IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the
date first above written.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY
a public body, corporate and politic
By:
Its: Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
882/015610-0061
380889.09 a12/17/03 -13-
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
380889.09 a12/17/03 -14-
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
THAT PORTION OF THE SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE
7 EAST, S.B.M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER ONE -QUARTER CORNER OF SAID SECTION 19,
ALSO BEING AND ANGLE POINT IN THE CENTERLINE OF MILES AVENUE AS
SHOWN ON TRACT NO. 23971-1, ON FILE IN BOOK 213 AT PAGES 25 THROUGH 30,
INCLUSIVE, OF MAPS, RIVERSIDE COUNTY RECORDS;
THENCE SOUTH 00027'38" EAST, A DISTANCE OF 75.00 FEET TO A LINE PARALLEL
WITH AND 75.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE AND
THE TRUE POINT OF BEGINNING;
THENCE NORTH 89033'22" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
960.27 FEET;
THENCE NORTH 00026'40" WEST, A DISTANCE OF 20.00 FEET TO A LINE PARALLEL
WITH AND 55.00 FEET SOUTHERLY OF SAID CENTERLINE OF MILES AVENUE;
THENCE NORTH 89033'22" EAST ALONG LAST SAID PARALLEL LINE, A DISTANCE
OF 80.00 FEET;
THENCE SOUTH 00026'40" EAST, A DISTANCE OF 112.88 FEET TO THE BEGINNING
OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 440.00
FEET;
THENCE SOUTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
41 °42'33", AN ARC DISTANCE OF 320.30 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 44044'32" EAST, A DISTANCE OF
90.06 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
NORTHEASTERLY AND HAVING A RADIUS OF 80.00 FEET;
THENCE SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
45°27'41 ", AN ARC DISTANCE OF 63.48 FEET;
THENCE TANGENT TO SAID CURVE NORTH 89047'47" EAST, A DISTANCE OF 239.56
FEET TO A POINT ON THE EASTERLY LINE OF PARCEL "C" AS DESCRIBED IN DEED
TO STAMKO DEVELOPMENT CO. RECORDED MAY 16, 1994 AS INSTRUMENT NO.
108979, O.R.
THENCE SOUTH 00012' 13" EAST ALONG SAID EASTERLY LINE, A DISTANCE OF
790.73 FEET TO AN ANGLE POINT THEREIN;
882/015610-0061
380889.09 a12/17/03 -15-
THENCE SOUTH 43056'42' WEST ALONG THE SOUTHEASTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 510.61 FEET TO A POINT ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 4565.17 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 42059'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND THE SOUTHWESTERLY LINE
OF SAID PARCEL "C" THROUGH A CENTRAL ANGLE OF 02°5746", AN ARC
DISTANCE OF 236.07 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'57" EAST ALONG AN
EASTERLY LINE OF SAID PARCEL "C" A DISTANCE OF 11.03 FEET TO A POINT
HEREINAFTER REFERRED TO AS POINT A, BEING ON THE NORTHEASTERLY
RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD
CHANNEL AS SHOWN ON C.V.W.D. RIGHT-OF-WAY STATUS MAP DATED APRIL 4,
1968, DRAWING NO. 1758-10;
THENCE CONTINUING SOUTH 00017'57" EAST ALONG LAST SAID EASTERLY LINE
OF PARCEL "C", A DISTANCE OF 386.46 FEET;
THENCE NORTH 48009'56" WEST ALONG THE SOUTHWESTERLY LINE OF SAID
PARCEL "C", A DISTANCE OF 22.00 FEET TO AN ANGLE POINT THEREIN;
THENCE CONTINUING ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL "C"
AND ITS NORTHWESTERLY PROLONGATION NORTH 64°21'03" WEST, A DISTANCE
OF 444.84 FEET TO AN ANGLE POINT IN THE SOUTHWESTERLY LINE OF PARCEL 2
AS DESCRIBED IN DEED TO THE LA QUINTA REDEVELOPMENT AGENCY
RECORDED AUGUST 4, 1995 AS INSTRUMENT NO.255528, O.R.
THENCE NORTH 58014'00" WEST ALONG SAID SOUTHWESTERLY LINE OF PARCEL
2, A DISTANCE OF 320.54 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID
POINT BEARS NORTH 86011'26" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
11 005'41 ", AN ARC DISTANCE OF 401.22 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 75033'02" EAST, A DISTANCE OF
4.22 FEET TO A POINT ON AFOREMENTIONED NORTHEASTERLY RIGHT-OF-WAY
LINE OF THE COACHELLA VALLEY WATER DISTRICT FLOOD CHANNEL, SAID
LINE BEING A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING
A RADIUS OF 2500.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 17°33'23"
EAST;
THENCE SOUTHEASTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 00032'28", AN ARC DISTANCE OF 23.61 FEET TO A POINT HEREINAFTER
REFERRED TO AS POINT B, SAID POINT ALSO BEING ON A NON -TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL
LINE TO SAID POINT BEARS NORTH 75053'46" EAST;
882/015610-0061
380889.09 a12/17/03 -16-
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 07041'06", AN ARC DISTANCE OF 280.60 FEET;
THENCE NON -TANGENT TO SAID CURVE SOUTH 67006'56" WEST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2072.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 68013' 18" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 02012'44", AN ARC DISTANCE OF 80.00 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 67006'56" EAST, A DISTANCE OF
20.00 FEET TO A POINT ON A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY
AND HAVING A RADIUS OF 2092.00 FEET, A RADIAL LINE TO SAID POINT BEARS
NORTH 66001' 12" EAST;
THENCE NORTHWESTERLY ALONG LAST SAID CURVE THROUGH A CENTRAL
ANGLE OF 19058'08", AN ARC DISTANCE OF 729.11 FEET;
THENCE NON -TANGENT TO SAID CURVE NORTH 00028'37" WEST, A DISTANCE OF
153.41 FEET TO A POINT ON A LINE PARALLEL WITH AND 75.00 FEET SOUTHERLY
OF THE AFOREMENTIONED CENTERLINE OF MILES AVENUE;
THENCE NORTH 89031'23" EAST ALONG SAID PARALLEL LINE, A DISTANCE OF
487.01 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT PORTION LYING SOUTHWESTERLY OF SAID
NORTHEASTERLY RIGHT-OF-WAY LINE OF THE COACHELLA VALLEY WATER
DISTRICT FLOOD CHANNEL, SAID LINE BEING MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
BEGINNING AT AFOREMENTIONED POINT A IN SAID NORTHEASTERLY RIGHT-OF-
WAY LINE, SAID POINT BEING ON A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY AND HAVING A RADIUS OF 2500.00 FEET, A RADIAL LINE TO
SAID POINT BEARS NORTH 36°57'27" EAST;
THENCE NORTHWESTERLY ALONG SAID CURVE AND SAID NORTHEASTERLY
RIGHT-OF-WAY LINE THROUGH A CENTRAL ANGLE OF 18051'35", AN ARC
DISTANCE OF 822.91 FEET TO AFOREMENTIONED POINT B.
SUBJECT TO ALL RIGHTS -OF -WAY AND EASEMENTS OF RECORD. COMPRISING
42.47 ACRES (1,850,000 SQUARE FEET), MORE OR LESS.
882/015610-0061
380889.09 a12/17/03 -17-
P.O.C.
CTR. 1/4 COR.
SEC. 19
MILES AVENUE S 00.27'38"_E�
75.00'
N 89'31'23" E 487.01' N 873:
N 00.28'37" W
153.41' T.P.O.S.
�9
in
0
_ L6
960.27' , . L7 - -
S 00'26'40" E
112.88'
wwn S 44'44'32" E
90.06'
0w_ �' 2
"v N 89*47*47" E
N 66'01'12" E SITE 239.56'
tR AREA-42.47 AC. a
L4 PORTION OF THE S. 1 /2 OF
SEC. 19, T.5S., R.7E., S.B.M.
`R) �+
� fV
L5 N 75'53'46" E be
tR rn
vPik\* L3 PT. B
1"=300' C•�WOR/w
N 66" 11'26" E 1, p (R) ?3• £ C4C�0 �':
LINE DATA
NUMBER
DIRECTION
DISTANCE
L1
S W l S.'01 E
397.49'
L2
N, 48'09'56" W
22.00'
L3
N7533'02" E
4.22'
L4
N 67'O6'56" E-
20.00'
L5
S 6TO6'56"` W
20.00' .
l6
N 00'26'40" W
20.00'
L7
N 89'33'22" E
180.00'
EXCEPTION
11 ro PARCEL
I J 74, PT. A
?psg N •7"
ro �R) '
oc
CURVE DATA W
NUMBER
DELTA
RADIUS
ARC LENGTH
TANGENT
Cl
41'42'33"
440.00
320.30
167.62
C2
4527 41"
60.00
63.48
33.52
C3
0757'4V
4565.17
236.07
118.06
C4
19'24'03
2500.00
846.52
427.35
C5
11*05'41"
2072.00
401.22
201.24
C6
19'58'08"
2092.00
1729.11
368.29
C7
OT12'44'
2072.00
80.00
40.01
C8
0741'06"
2092.00
280.60
140.51
C9,
00'32'28'
12500.00
23.61
11.81
C10
18'51'35"
12500.00
822.91
415.21
E
N 4759'27' E
�R)
cy�rF
o
tig4q -
J.N. 1612
882/015610-0061
380889.09 a12/17/03 -18-
EXHIBIT `B"
COMMENCEMENT AND COMPLETION SCHEDULE
Time for Completion of
Construction (measured from
date City issues final building
Time for Commencement of permits for applicable Phase of
Phase of Development Construction Development)
Parcel A Medical Office/Surgical Facility 690 days after DDA Date 36 months
Component
First Phase of Development of the Medical
Office/Surgical Facility
Second Phase of Development of the Medical
Office/Surgical Facility
Third Phase of Development of the Medical
Office/Surgical Facility
Parcel 1 Restaurant
Parcel 2 Casitas Development Component
Parcel 3 Casitas Development Component
Parcel 4 Casitas Development Component
Parcel 5 Residential Development
Parcel 7 Residential Development
Parcel 8 Sanctuary Villas Component
Parcel 9 Sanctuary Villas Component
Parcel 13 Restaurant
Seeley Drive
Suites Hotel
690 days after DDA Date
780 days after DDA Date
870 days after DDA Date
600 days after DDA Date
600 days after DDA Date
600 days after DDA Date
600 days after DDA Date
626 days after DDA Date
626 days after DDA Date
690 days after DDA Date
1230 days after DDA Date
800 days after DDA Date
500 days after DDA Date
600 days after DDA Date
36 months
36 months
36 months
36 months
36 months
36 months
36 months
18 months
18 months
36 months
36 months
36 months
180 days after Developer's
completion of Suites Hotel
18 months
882/015610-0061 -19-
380889.09 a12/17/03
EXHIBIT "C"
RELATED PARCELS
The following are groupings of Parcels which are deemed to be Related Parcels:
Sanctuary Villas Parcel 8 and Sanctuary Villas Parcel 9.
2. Casitas Parcel 2, Casitas Parcel 3, and Casitas Parcel 4.
3. Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility Parcel
10, Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12.
4. Residential Parcel 5 and Residential Parcel 7.
5. Suites Hotel Parcel, Restaurant Parcel 1 and Restaurant Parcel 13.
882/015610-0061
380889.09 a12/17/03 "20-
EXHIBIT "D"
PURCHASE PRICE
Sanctuary Villas Parcel 8
$ 841,193.42
Sanctuary Villas Parcel 9
247,409.82
Casitas Parcel 2
510,563.92
Casitas Parcel 3
773,718.02
Casitas Parcel 4
654,511.46
Landscape Parcel C
0
Landscape Parcel E
0
Landscape Parcel H
0
Landscape Parcel I
0
Medical Office/Surgical Facility A
1,455,219.64
Medical Office/Surgical Facility 10
164,190.15
Medical Office/Surgical Facility 11
276,649.17
Medical Office/Surgical Facility 12
164,190.15
Residential Parcel 5
135,694.34
Residential Parcel 7
557,028.39
Restaurant Parcel 1
206,924.58
Restaurant Parcel 13
251,908.18
Seeley Drive Parcel
0
Suites Hotel Parcel
753,475.39
Well Site Parcel
116,957.37
Property
$7,109,634.00
'82/015610-0061
380889.09 a12117/03 -21-
ATTACHMENT NO.14B
FORM OF OPTION AGREEMENT
[SEE FOLLOWING PAGES]
82/015610-0061
3:0899.09 a12/17/03
FREE RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
(SPACE ABOVE THIS LINE FOR RECORDING USE)
(EXEMPT FROM RECORDING FEE PER GOV. CODE § 27383)
OPTION AGREEMENT
NOTICE: THIS OPTION AGREEMENT CONTAINS A SUBORDINATION
CLAUSE WHICH MAY RESULT IN YOUR SECURITY INTEREST IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE
LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT.
THIS OPTION AGREEMENT ("Option Agreement") is made this _ day of ,
2003 (the "Effective Date"), by CP DEVELOPMENT LA QUINTA, LLC, a California limited
liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a
public body, corporate and politic ("Agency").
RECITALS
A. Developer has entered into a Disposition and Development Agreement ("DDA")
dated , 2003 (the "DDA Date") with the La Quinta Redevelopment Agency
("Agency"), pursuant to which Agency has agreed to convey to Developer, and has conveyed all
or a portion thereof to Developer, that certain real property located southeast of the Miles
Avenue and Washington Street intersection, in the City of La Quinta, County of Riverside, State
of California (the "Site"). The Site is composed of (__) [Insert applicable number]
individual parcels (individually, a "Parcel," and collectively, the "Parcels"), each of which is
legally described in Exhibit "A" attached hereto and incorporated herein. The Parcels are
identified in the DDA as
[Insert applicable Parcels].
All defined terms used herein shall have the same meaning as set forth in the DDA unless
otherwise stated. As used herein, the term "Parcel" and "Parcels" shall have the meaning
ascribed above.
B. As a condition to the Agency's conveyance of any portion of the Site to
Developer, Developer was required to grant to Agency an option to repurchase from Developer a
Parcel (the "Option Parcel"), and any of the other Parcels which Developer has acquired from
Agency if Developer has not yet commenced construction on such Parcels, if (i) Developer fails
to commence, continuously proceed with, or complete construction on the Option Parcel within
certain specified time frames, or (ii) Developer transfers the Option Parcel in violation of the
terms of the DDA, all as further described herein.
882/015610-0061
380889.09 a12/17/03
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and incorporating the above recitals and all of the terms and
conditions contained in the DDA, Developer hereby grants to Agency the following repurchase
options:
1. Repurchase Option I - Failure to Commence Construction
Subject to Section 4(f), Developer hereby grants to Agency an exclusive option to
repurchase any Parcel Developer has acquired from Agency if Developer fails to commence
construction thereon of the applicable Phase of Development within the time set forth in the
Commencement and Completion Schedule attached hereto and incorporated herein as Exhibit
"B" ("Repurchase Option I"). Agency's Repurchase Option I shall also include the option to
repurchase any other Parcel which Developer has acquired from Agency if Developer has not yet
commenced construction thereon. For the purposes of this Option Agreement, "commence
construction" shall mean Developer's substantial commencement, and thereafter uninterrupted
continuation, of excavation work or physical construction on the applicable Parcel, subject to
Section 4(f) below, but shall not include any grading work or utility installation that was
completed by Developer prior to the Effective Date hereof.
In the event of Developer's failure to commence construction of the applicable Phase of
Development within the time period described above, Agency shall be entitled to exercise, but is
not obligated to exercise, the foregoing option for a period of ninety (90) days following the
expiration of the time period described above (after expiration of the cure period described in
Sections 4(b) and 4(c) hereof) ("Repurchase Option I Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option I by giving written notice to Developer
("Agency's Notice of Option 1 Exercise"), in accordance with Section 5 of this Option
Agreement, prior to the expiration of the Repurchase Option I Period. Notwithstanding anything
herein to the contrary, failure of Agency to exercise the Repurchase Option I with respect to
Developer's failure to timely commence construction of a particular Phase of Development shall
not constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of
any other Agreement for Developer's failure to timely commence construction of that Phase of
Development and shall not constitute a waiver of Agency of its exercise of this Repurchase
Option I with respect to Developer's failure to timely commence construction of any other Phase
of Development. Any Agency waiver as described in the preceding sentence shall not be
deemed a waiver of any other Developer breach of the terms or conditions of the DDA.
(b) Repurchase Price - Repurchase Option I
Agency's repurchase price for any of the Parcels Agency is entitled, and elects, to
purchase ("Repurchase Option I Repurchase Price"), shall be seventy-five percent (75%) of
Developer's Purchase Price for the applicable Parcel(s), as set forth in Exhibit "C", which is
attached hereto and incorporated herein by this reference.
'82/015610-0061
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2. Repurchase Option II - Failure to Continuously Proceed With or Complete
Construction
Developer hereby grants to Agency an exclusive option to repurchase any individual
Parcel ("Option II Parcel(s)"), and any other Parcel(s) which Developer has acquired from
Agency and on which Developer has not yet commenced construction if, after commencement of
construction of the Phase of Development to be constructed on the Option II Parcel(s),
Developer fails to continuously proceed with, and complete, construction of such Phase of
Development on the Option II Parcel(s) (collectively, "Repurchase Option II"). For purposes of
this Option Agreement, "continuously proceed with construction" shall be defined as
construction that is interrupted, if at all, for periods of no longer than thirty (30) days; and
"completion of construction of the Phase of Development" shall be defined as City's final
inspection of the Phase of Development by the date set forth in the Commencement and
Completion Schedule, subject to Section 4(f) below ("Completion Deadline"). In the event of
Developer's failure to continuously proceed with construction, or to complete construction of
any Phase of Development by the Completion Deadline, Agency shall be entitled to exercise, but
is not obligated to exercise, the foregoing option for a period of ninety (90) days following the
applicable Completion Deadline (after expiration of the cure period described in Sections 4(b)
and 4(c) hereof) ("Repurchase Option II Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option II by giving written notice to Developer, in
accordance with Section 5 of this Option Agreement, prior to the expiration of the Repurchase
Option II Period. Failure of Agency to exercise the Repurchase Option II with respect to a
particular Phase of Development shall constitute a waiver by Agency of Developer's breach of
its obligation to continuously proceed with and complete construction of that Phase of
Development within the time set forth in the Commencement and Completion Schedule. Any
Agency waiver as described in the preceding sentence shall not be deemed a waiver of
Developer's obligation to continuously proceed with and complete construction of any other
Phase of Development within the time set forth in the Commencement and Completion
Schedule, or of any other Developer breach of the terms or conditions of the DDA.
(b) Determination of Repurchase Price - Repurchase Option II
Agency's repurchase price for the Option II Parcel(s) and any other Parcel(s) Agency is
entitled, and elects, to purchase ("Repurchase Option II Repurchase Price"), shall be the sum of
(a) Developer's Purchase Price for the Option II Parcel(s) plus thirty-three and three -tenths
percent (33.3%) of "Developer's Construction Costs," and (b) seventy-five percent (75%) of
Developer's Purchase Price for the other Parcel(s) Developer is entitled, and elects, to purchase..
For purposes of this Option Agreement, the term "Developer's Construction Costs" shall mean,
with respect to development of the Phase of Development to be constructed on the Option II
Parcel(s), the lesser of (i) construction costs actually incurred by Developer for development of
said Phase of Development from the DDA Date to the date Agency's exercises this Repurchase
Option II (the "Construction Period"), and (ii) the constructions costs for the Construction Period
set forth in Developer's Preliminary Budget, as approved by Agency as part of Agency's
approval of Developer's financing, in accordance with Section 311 of the DDA, which costs may
882/015610-0061
380899.09 a12/17/03 -3-
include (i) the amount paid by Developer to the contractor or contractors performing the works
of improvement; (ii) reasonable inspection and testing costs paid by Developer to independent
third party engineers or consultants in conjunction with said works of improvement (but not
including costs, fees, charges, or profits allocated to Developer's own internal administrative,
payroll, or overhead expenses or to any person or entity affiliated with Developer; (iii) costs and
fees paid by Developer to independent third parry engineers or consultants with respect to the
planning, design, and engineering of the works of improvement (but not including costs, fees,
charges, or profits allocated to the Developer's own internal administrative, payroll, or overhead
expenses or to any person or entity affiliated with Developer); and (iv) the costs and fees
incurred by Developer, if any, to obtain financing for the construction of the works of
improvement.
3. Repurchase Option III - Transfer of the Site
Developer hereby grants to Agency an exclusive option to repurchase (i) the Site if, prior
to the time Agency issues a Release of Construction Covenants for any Phase of Development to
be constructed thereon, Developer transfers or suffers an involuntary transfer of the Site in
violation of the terms of the DDA; or (ii) any of the Parcels (the "Option III Parcel(s)") and any
other Parcel(s) which Developer has acquired from Agency and on which Developer has not yet
commenced construction if, prior to the time Agency issues a Release of Construction Covenants
for the Phase of Development to be constructed on the Option III Parcel(s), Developer transfers
or suffers an involuntary transfer of the Option III Parcel(s) (collectively, "Repurchase Option
III"). In the event of Developer's transfer of the Site or any of the Parcels in violation of the
DDA, Agency shall be entitled to exercise, but is not obligated to exercise, the foregoing option
for a period of ninety (90) days following the transfer that gives rise to Agency's option under
this Section ("Repurchase Option III Period").
(a) Exercise of Option
Agency shall exercise the Repurchase Option III by giving written notice to Developer
("Agency's Notice of Option III Exercise"), in accordance with Section 5 of this Option
Agreement, prior to the expiration of the Repurchase Option III Period. Notwithstanding
anything herein to the contrary, (i) failure of Agency to exercise the Repurchase Option III with
respect to Developer's transfer or sufferance of an involuntary transfer of the Site shall not
constitute a waiver by Agency of any remedies it may have under the terms of the DDA or of
any other agreement for Developer's transfer or sufferance of an involuntary transfer of the Site,
and (ii) failure of Agency to exercise the Repurchase Option III with respect to Developer's
transfer or sufferance of an involuntary transfer of a Parcel shall not constitute a waiver by
Agency of any remedies it may have under the terms of the DDA or of any other agreement for
Developer's transfer or sufferance of an involuntary transfer of the Parcel, and shall not
constitute a waiver by Agency of its exercise of this Repurchase Option III with respect to any of
the other Parcels. Any Agency waiver as described in the preceding sentence shall not be
deemed a waiver of any other Developer breach of the terms or conditions of the DDA.
821015610-0061
3:0889.09 a] 2/17/03 -4-
(b) Repurchase Price - Repurchase Option III
Agency's repurchase price for the Site or for the Option III Parcel(s) and any other
Parcels Agency is entitled, and elects, to purchase ("Repurchase Option III Repurchase Price")
shall be as follows:
i) In the event Developer has not yet commenced construction of the
applicable Phase of Development at the time Agency exercises its Repurchase Option III,
Agency's Repurchase Option III Price shall be the Repurchase Option I Repurchase Price, as set
forth in Section 1(b) of this Option Agreement.
ii) In the event Developer has commenced construction of the
applicable Phase of Development at the time Agency exercises its Repurchase Option III,
Agency's Repurchase Option III Repurchase Price shall be (1) for the Option III Parcel(s), the
Repurchase Option II Repurchase Price, as set forth in Section 2(b) of this Option Agreement,
and (2) for the other Parcels Agency is entitled, and elects, to purchase, the Repurchase Option I
Repurchase Price, as set forth in Section 1(b) of this Option Agreement.
4. Additional Terms Applicable to the Repurchase Options
The following additional terms shall apply to Repurchase Option I, Repurchase Option II,
and Repurchase Option III:
(a) The Repurchase Option I, Repurchase Option II, and Repurchase Option
III created hereby shall be irrevocable by Developer and, subject to any subordination by Agency
in accordance with paragraph (e) below, shall be binding upon the successors and assigns of
Developer.
(b) Notwithstanding anything herein to the contrary, Agency shall not be
entitled to exercise Repurchase Option I or Repurchase Option II until Agency has provided a
written notice to Developer regarding Developer's failure to commence, continuously proceed
with, or complete, construction of the Project (with each of the above failures referred to
hereinafter as an "Option Triggering Event"), and Developer has not, within sixty (60) days after
receipt of such notice, cured, corrected, or remedied such Option Triggering Event, or, for those
Option Triggering Events that cannot reasonably be cured, corrected, or remedied within sixty
(60) days, commenced to cure, correct or remedy such Option Triggering Event within said sixty
(60) day period, and diligently prosecute the same to completion.
(c) With respect to any mortgage or deed of trust granted by Developer,
whenever the Agency may deliver any notice or demand to Developer with respect to an Option
Triggering Event, the Agency shall at the same time deliver a copy of such notice or demand to
each holder of record of any mortgage or deed of trust which has previously requested such
notice in writing. Each such holder shall (insofar as the rights granted by the Agency are
concerned) have the right, at its option, within sixty (60) days after the receipt of the notice, to
cure or remedy or commence to cure or remedy and thereafter to pursue with due diligence the
cure or remedy of any such default and to add the cost thereof to the mortgage debt and the lien
of its mortgage. It is understood that a holder shall be deemed to have satisfied the sixty (60) day
time limit set forth above for commencing to cure or remedy a Developer default which requires
882/015610-0061
380889.09 a12/17/03 -5-
title and/or possession of the Property (or portion thereof) if and to the extent any such holder
has within such sixty (60) day period commenced proceedings to obtain title and/or possession
and thereafter the holder diligently pursues such proceedings to completion and cures or
remedies the default.
(d) Notwithstanding any covenant, term, or provision in this Section 4 to the
contrary, Agency shall not be obligated to exercise Repurchase Option I, Repurchase Option II,
or Repurchase Option III.
(e) In the event Developer commences and completes construction of any of
the Phases of Development to be constructed on the Parcels and Agency has not exercised
Repurchase Option I, Repurchase Option II, or Repurchase Option III, Agency shall execute and
record a termination of this Option Agreement with respect to the underlying Parcel of said
Phase of Development within fifteen (15) business days after the final and permanent Certificate
of Occupancy for the Phase of Development is issued by the City.
(f) Notwithstanding anything to the contrary herein, in addition to specific
provisions of this Option Agreement, performance by either party hereunder shall not be deemed
to be in default where delays or defaults are due to war; insurrection; strikes; lock -outs; riots;
floods; earthquakes; fires; casualties; supernatural causes; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or
priority litigation; unusually severe weather; inability to secure necessary labor, materials or
tools; acts of the other party; acts or the failure to act of a public or governmental agency or
entity (except that acts or the failure to act of Agency shall not excuse performance by Agency
unless the act or failure is caused by the acts or omissions of Developer); or any other causes
beyond the reasonable control or without the fault of the party claiming an extension of time to
perform. In the event of such a delay (herein "Enforced Delay"), the party delayed shall
continue to exercise commercially reasonable efforts to minimize the period of the delay. An
extension of time for any such cause shall be limited to the period of the Enforced Delay, and
shall commence to run from the time of the commencement of the cause, provided notice by the
party claiming such extension is sent to the other party within thirty (30) days following the
commencement of the cause. The following shall not be considered as events or causes beyond
the control of Developer, and shall not entitle Developer to an extension of time to perform: (i)
Developer's failure to obtain financing for any Phase of Development to be constructed on the
Site, (ii) Developer's failure to negotiate agreements with prospective tenants or users for any
Phase of Development to be constructed on the Site, (iii) interest rates or (iv) economic or
market conditions. Times of performance under this Option Agreement may also be extended by
mutual written agreement by Agency and Developer. Agency's Executive Director shall also
have the authority on behalf of Agency to administratively approve extensions of time not to
exceed a cumulative total of one (1) year.
(g) Subordination. The Agency agrees to subordinate Repurchase Option II
and Repurchase Option III to Developer's construction loan(s) for the
[Insert applicable Phases of Development] [Insert "and to the deed of trust securing
Developer's investor's loan for the
(Insert applicable Phases of Development)" if this Option Agreement is recorded against
882/015610-0061
380889.09 a12/17/03 -6-
the Suites Hotel Parcel, Casitas Parcel 2, Casitas Parcel 3, or Casitas Parcel 41, provided
that (i) the maximum cumulative principal amount of (1) the construction loan for each of the
[Insert applicable Phases of Development] [insert "and (2) the collective sum of Developer's
construction loan plus Developer's investor's loan for each of the
(Insert applicable Phases of
Development)" if this Option Agreement is recorded against the Suites Hotel Parcel,
Casitas Parcel 2, Casitas Parcel 3, or Casitas Parcel 41 shall not exceed ninety percent (90%)
of the lender's appraised value of the Parcel on which said Phase of Development shall be
constructed, upon completion of the Phase of Development, which amount shall be verified in
writing to Agency Executive Director's reasonable satisfaction, (ii) The loan(s) shall obligate
Developer to expend loan proceeds for no other purpose than the applicable Phase of
Development; and (iii) the loan(s) shall provide that any notice of a Developer breach or default
shall also be sent to the Agency at the address listed in Section 5 and that upon receipt of such
notice, Agency shall have the right to (A) cure the noticed breach or default, (B) negotiate with
the lender regarding the noticed breach or default, and (C) purchase the Site (or applicable
Parcel(s)) from Developer subject to the construction lender's deed of trust, without the consent
of Developer or the holder of the construction lender's deed of trust, and that Agency's exercise
of the foregoing rights shall not, in and of itself, give rise to any right on the part of the lender to
accelerate the amounts due under the loan.
(h) Agency's Investigation of Site. Agency shall have forty-five (45) days
after the occurrence of an event that triggers Agency's ability to exercise any of Repurchase
Option I, Repurchase Option II, or Repurchase Option III to enter upon the Site (or applicable
Parcel(s)) to conduct any tests, inspections, investigations, or studies of the condition of the Site
(or applicable Parcel(s)). Developer shall permit Agency access to the Site (or applicable
Parcel(s)) for such purposes. Agency's obligation to close "Escrow" (as defined below) shall be
subject to Agency's approval of any environmental and other site testing conducted by Agency
in Agency's discretion. Agency shall indemnify, defend, and hold harmless Developer and its
officers, directors, shareholders, employees, agents, and representatives from and against all
claims, liabilities, or damages, and including expert witness fees and reasonable attorney's fees
and costs, arising out of any such testing, inspection, or investigatory activity on the Site (or
applicable Parcel(s)).
(i) Escrow Provisions.
i) Within five (5) business days after Agency has exercised
Repurchase Option I, Repurchase Option II, or Repurchase Option III (as applicable), or as soon
thereafter as reasonably practicable, an escrow shall be opened ("Escrow") with an escrow
company selected by Agency for the reconveyance of the Site (or applicable Parcel(s)) to
Agency ("Escrow Holder"). Escrow shall be deemed opened on the date that a fully executed
copy of this Option Agreement and a notice of exercise of option prepared by Agency are
delivered to Escrow Holder ("Opening of Escrow"). Escrow Holder shall notify Developer and
Agency in writing of the date of the Opening of Escrow promptly following the opening of the
Escrow.
882/015610-0061
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ii) Escrow shall close on or before the date that is ninety (90) days
after the Opening of Escrow ("Close of Escrow" or "Closing Date"). The terms "Close of
Escrow" and "Closing Date" shall mean the date the grant deed conveying fee title to Agency
("Agency Grant Deed") is recorded in the Office of the County Recorder of the County of
Riverside, State of California. Possession of the Site, or applicable Parcel(s), shall be delivered
to Agency at the Close of Escrow.
iii) This Option Agreement, together with any standard instructions of
Escrow Holder, shall constitute the joint escrow instructions of Developer and Agency to Escrow
Holder as well as an agreement between Developer and Agency. In the event of any conflict
between the provisions of this Option Agreement and Escrow Holder's standard instructions, this
Option Agreement shall prevail.
iv) The Escrow shall be subject to Agency's approval of a then -current
preliminary title report. Any monetary lien(s) or encumbrance(s) shown on such preliminary
title report that is (are) created concurrent with or after the close of escrow that conveyed the Site
(or applicable Parcel(s)) from Agency to Developer shall be removed by Developer at its sole
expense prior to the Close of Escrow pursuant to this Section 4(i) unless such exception(s) is
(are) accepted by Agency in its sole discretion; provided, however, that Agency shall accept the
following exceptions to title: (i) current taxes not yet delinquent, (ii) matters affecting title
existing on the date of recordation of the Grant Deed to the Site (or applicable Parcel(s)) (in the
form of Attachment No. 4 to the DDA); and (iii) matters shown as printed exceptions in the
standard form ALTA policy of title insurance. In the event the Site (or applicable Parcel(s)) is
encumbered by a mortgage or deed of trust, Agency shall be permitted to unilaterally instruct
Escrow Holder to satisfy the indebtedness secured thereby out of the proceeds payable to
Developer through the foregoing Escrow. Any additional amount necessary to satisfy such
indebtedness shall be paid by Developer.
v) On or before 1:00 p.m. on the last business day preceding the
scheduled Closing Date, Agency shall deposit in Escrow (i) the applicable of the Repurchase
Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the Repurchase
Option III Repurchase Price; (ii) one-half (1/2) of the escrow fees; (iii) the portion of the title
insurance premium attributable to any extra or extended coverages, or any additional charge
resulting from Agency's request that the amount of insurance be higher than the applicable of the
Repurchase Option I Repurchase Price, the Repurchase Option II Repurchase Price, or the
Repurchase Option III Repurchase Price; and (iv) any and all additional instruments or other
documents required from Agency (executed and acknowledged if appropriate) as may be
necessary in order to effect the transfer of the Site, or applicable Parcel(s), to Agency. On or
before 1:00 p.m. on the last business day preceding the scheduled Closing Date, Developer shall
deposit in Escrow (i) the Agency Grant Deed, executed and acknowledged; (ii) one-half (1/2) of
the escrow fees; and (iii) any and all additional instruments or other documents required from
Developer (executed and acknowledged if appropriate) as may be necessary in order to effect the
transfer of the Site, or applicable Parcel(s), to Agency. Developer shall also be required to pay
for documentary tax stamps, recording fees, and for an ALTA standard form owner's policy of
title insurance in the amount of the Repurchase Option I Repurchase Price, the Repurchase
Option II Repurchase Price, or the Repurchase Option III Repurchase Price (as applicable),
showing title vested in Agency free and clear of all liens and encumbrances except those
882/015610-0061
380989.09 a12/17/03 -8-
permitted by paragraph (4) above (the "Title Policy"). Agency's receipt of the Title Policy shall
be a condition to the Close of Escrow. Any other costs and expenses shall be allocated between
the parties in the manner customary for a commercial property conveyance in Riverside County.
vi) If, on or before the Closing Date, Escrow Holder has received all
of the documents and funds listed in paragraph (5) above, and Escrow Holder is in a position to
cause the Title Policy to be issued to Agency, and provided Agency has approved of the
condition of the Site, or applicable Parcel(s), Escrow Holder shall close the Escrow by taking the
following actions: (i) recording the Agency Grant Deed in the office of the County Recorder of
the County of Riverside, California, and delivering the recorded Agency Grant Deed to Agency;
(ii) causing the Title Policy to be issued to Agency; and (iii) delivering the applicable of the
Option I Repurchase Price, the Option II Repurchase Price, or the Option III Repurchase Price to
Developer.
0) Notwithstanding anything herein to the contrary, upon Agency's exercise
of Repurchase Option I, Repurchase Option II, or Repurchase Option III, Developer's
commencement to cure the default that led to Agency's exercise shall not affect Agency's right
to close the Escrow and acquire the Site (or applicable portion thereof).
(k) [Insert the following if this Option Agreement is recorded against
Residential Parcel 5 and Residential Parcel 7: "Notwithstanding anything herein to the
contrary, in the event that as a result of Agency exercising Repurchase Option II or
Repurchase Option III Agency acquires Residential Parcel 5 and/or Residential Parcel 7, if
Developer has obtained a Certificate of Completion from the City for one or more of the
lots that comprise either of said Parcels, (i) the provisions of this Option Agreement shall
apply only to that portion of Residential Parcel 5 and/or Residential Parcel 7 (as
applicable) for which Certificates of Completion have not been issued ("Uncompleted
Portion of the Repurchase Property") and any calculations for determining the Repurchase
Option II Repurchase Price or the Repurchase Option III Repurchase Price (as applicable)
shall be based solely upon the Uncompleted Portion of the Repurchase Property, and (ii)
Developer agrees to cooperate with Agency to effect the subdivision of the Uncompleted
Portion of the Repurchase Property from the completed portions of Residential Parcel 5
and/or Residential Parcel 7 (as applicable) (those portions of the Repurchase Property for
which Certificates of Completion have been issued)."
5. Notices. Demands and Communications Between the Parties
Formal notices, demands, and communications between Agency and Developer shall be
given either by (i) personal service, (ii) delivery by reputable document delivery service such as
Federal Express that provides a receipt showing date and time of delivery, or (iii) mailing in the
United States mail, certified mail, postage prepaid, return receipt requested, addressed to:
To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Executive Director
882/015610-0061
380899.09 a12/17/03 -9-
With a copy to: Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, California 92626
Attn: M. Katherine Jenson, Esq.
To Developer: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
With copies to: Selzer, Ealy, Hemphill & Blasdell, LLP
777 Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill
and Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Notices personally delivered or delivered by document delivery service shall be deemed
effective upon receipt. Notices mailed in the manner provided above shall be deemed effective
on the second business day following deposit in the United States mail. Such written notices,
demands, and communications shall be sent in the same manner to such other addresses as either
party may from time to time designate by mail.
6. Agency's Option to Acquire Plans
If Agency exercises Repurchase Option I, Repurchase Option II, or Repurchase Option
III in accordance with this Agreement, at the option of the Agency, which may be exercised in
the Agency's sole and absolute discretion, the Developer shall deliver to the Agency an executed
assignment in a form reasonably acceptable to the Agency of the Developer's right to use all
plans, blueprints, drawings, sketches, specifications, tentative or final subdivision maps,
landscape plans, utilities plans, soils reports, noise studies, environmental assessment reports,
grading plans and any other materials relating to (i) the construction of the
[Insert
applicable Phases of Development] on the Site or (ii) if Agency acquires less than all of the
Site, the construction of the Phases(s) of Development applicable to the Parcels which the
Agency is acquiring (the "Plans"), together with copies of all of the Plans, as have been prepared
for the development of the Site or applicable Parcel(s) to date of the termination.
Notwithstanding the foregoing, however, Developer does not covenant to convey to the Agency
the copyright or other ownership rights of third parties. Agency understands and agrees that the
assignment to Agency under this Section 6 is subject and subordinate to any assignment which
Developer may make to a lender providing financing for the applicable Phase of Development,
and Agency agrees to execute any documents required by such lender acknowledging and
effectuating such subordination of Agency's rights in and to the assignment. Agency's
882/015610-0061 -1 O-
380889.09 a12/17/03
acquisition or use of the Plans or any of them shall be without any representation or warranty by
Developer as to the accuracy or completeness of any such Plans, and Agency shall assume all
risks in the use of the Plans.
7. Applicable Law and Forum; Attorney's Fees
The Municipal and Superior Courts of the State of California in the County of Riverside
shall have the exclusive jurisdiction of any litigation between the parties arising out of this
Option Agreement. This Option Agreement shall be governed by, and construed under, the laws
of the State of California. In addition to any other rights or remedies, either party may take legal
action, in law or in equity, to cure, correct, or remedy any default, to recover damages for any
default, to compel specific performance of this Option Agreement, to obtain declaratory or
injunctive relief, or to obtain any other remedy consistent with the purposes of this Option
Agreement. The rights and remedies of the parties are cumulative and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise by it, at the same
or different times, of any other rights or remedies for the same default or any other default by the
other party. Service of process on Agency shall be made in the manner required by law for
service on a public entity. Service of process on Developer shall be made in any manner
permitted by law and shall be effective whether served within or outside of California.
If either party to this Option Agreement is required to initiate or defend, or is made a
party to, any action or proceeding in any way connected with this Option 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. Nonliability of Agency Officials and Employees
No officer, official, employee, agent, or representative of Agency shall be personally
liable to Developer or any successor in interest, in the event of any default or breach by Agency,
or for any amount which may become due to Developer or its successor, or for breach of any
obligation of the terms of this Option Agreement.
9. Nondiscrimination
Developer covenants for itself, its heirs, executors, assigns, and all persons claiming
under or through them, that there shall be no discrimination against any person on account of
race, color, creed, religion, sex, marital status, national origin, or ancestry with respect to this
Option Agreement or use of the Site.
10. Interpretation
The terms of this Option Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by reason of the
authorship of this Option Agreement or any other rule of construction which might otherwise
apply. The Section headings are for purposes of convenience only, and shall not be construed to
limit or extend the meaning of this Option Agreement.
882/015610-0061 -11-
380889.09 a]2/17/03
11. Entire Agreement
This Option Agreement integrates all of the terms and conditions mentioned herein, or
incidental hereto, and supersedes all negotiations or previous agreements between the parties
with respect to all or any part of the subject matter hereof.
All waivers of the provisions of this Option Agreement must be in writing and signed by
the appropriate authorities of the party to be charged, and all amendments and modifications
hereto must be in writing and signed by the appropriate authorities of Agency and Developer.
12. Counterparts
This Option Agreement may be executed in counterparts, each of which, after all the
parties hereto have signed this Option Agreement, shall be deemed to be an original, and such
counterparts shall constitute one and the same instrument.
13. Severability
In the event any section or portion of this Option Agreement shall be held, found, or
determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions
shall remain in effect, and the parties hereto shall take further actions as may be reasonably
necessary and available to them to effectuate the intent of the parties as to all provisions set forth
in this Option Agreement.
[END - SIGNATURES ON NEXT PAGE]
882/015610-0061
380889.09 a12/17/03 -12-
IN WITNESS WHEREOF, the parties have executed this Option Agreement as of the
date first above written.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY
a public body, corporate and politic
By:
Its: Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
882/015610-0061
380889.09 a] 2/17/03 -13 -
STATE OF CALIFORNIA )
) ss
COUNTY OF
On
personally appeared
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
982/015610-0061 -14-
380889.09 a]2/17/03
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PARCELS
[To be inserted prior to recordation]
882/015610-0061
380889.09 a12/17/03
P.O.C.
CTR. 1/4 COR.
SEC. 19
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NUMBER
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DISTANCE
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NUMBER
DELTA
RADIUS
ARC LENGTH
TANGENT
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41'42'33"
440.00
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236.07
882/015610-0061 - 1 6_
380889.09 a12/17/03
1IRMIRINUM
COMMENCEMENT AND COMPLETION SCHEDULE
Phase of Development
Parcel A Medical Office/Surgical Facility Component
First Phase of Development of the Medical
Office/Surgical Facility
Second Phase of Development of the Medical
Office/Surgical Facility
Third Phase of Development of the Medical
Office/Surgical Facility
Parcel 1 Restaurant
Parcel 2 Casitas Development Component
Parcel 3 Casitas Development Component
Parcel 4 Casitas Development Component
Parcel 5 Residential Development
Parcel 7 Residential Development
Parcel 8 Sanctuary Villas Component
Parcel 9 Sanctuary Villas Component
Parcel 13 Restaurant
Seeley Drive
Suites Hotel
Time for
Commencement of
Construction
690 days after DDA Date
690 days after DDA Date
780 days after DDA Date
870 days after DDA Date
600 days after DDA Date
600 days after DDA Date
600 days after DDA Date
600 days after DDA Date
626 days after DDA Date
626 days after DDA Date
690 days after DDA Date
1230 days after DDA
Date
800 days after DDA Date
500 days after DDA Date
600 days after DDA Date
Time for Completion of
Construction (measured
from date City issues
final building_vermits for
apylicable Phase of
Development)
36 months
36 months
36 months
36 months
36 months
36 months
36 months
36 months
18 months
18 months
36 months
36 months
36 months
180 days after
Developer's completion
of Suites Hotel
18 months
882/015610-0061 _ 17-
380889.09 a12/17/03
EXHIBIT "C"
PURCHASE PRICE
Sanctuary Villas Parcel 8
$ 841,193.42
Sanctuary Villas Parcel 9
247,409.82
Casitas Parcel 2
510,563.92
Casitas Parcel 3
773,718.02
Casitas Parcel 4
654,511.46
Landscape Parcel C
0
Landscape Parcel E
0
Landscape Parcel H
0
Landscape Parcel I
0
Medical Office/Surgical Facility A
1,455,219.64
Medical Office/Surgical Facility 10
164,190.15
Medical Office/Surgical Facility 11
276,649.17
Medical Office/Surgical Facility 12
164,190.15
Residential Parcel 5
135,694.34
Residential Parcel 7
557,028.39
Restaurant Parcel 1
206,924.58
Restaurant Parcel 13
251,908.18
Seeley Drive Parcel
0
Suites Hotel Parcel
753,475.39
Well Site Parcel
116,957.37
Property
$7,109,634.00
882/015610-0061 _ 18_
380889.09 a12/17/03
ATTACHMENT NO.15
DECLARATION
[SEE FOLLOWING PAGES]
882/015610-0061
380889.09 a12/17/03
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:)
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attention: Executive Director
(Space Above for Recorder's Use)
(Exempt from Recordation Fee per Gov. Code § 27383)
DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS FOR PROPERTY
THIS DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS
FOR PROPERTY (the "Declaration") is made by and between CP DEVELOPMENT LA
QUINTA, LLC, a California limited liability company (the "Covenantor") and the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency" or
"Covenantee") as of the day of , 2003.
RECITALS
A. Covenantor is the fee owner of record of that certain real property (the
"Property") located in the City of La Quinta, County of Riverside, State of California, legally
described in the attached Exhibit "A", which Property Covenantor acquired from Agency
pursuant to a Grant Deed recorded concurrently herewith.
B. This Declaration and the Grant Deed described in Recital A are part of a
redevelopment project described in that certain Disposition and Development Agreement
("DDA"), entered into by and between Covenantor and Covenantee on or about ,
. As described in the DDA, the Property includes not less than fifty-four (54) single family
lots on each of which Covenantor shall construct a single family home, forty (40) of which single
family homes shall be held for sale to "Eligible Buyers" (the "Affordable Housing Component")
(as that term is defined in Section Lf hereof) (the "Project"). To assist Covenantor with the
construction of the Affordable Housing Component, Covenantee provided financial assistance to
Covenantor, in the form of a loan (the "Covenantee Loan"). Repayment of the Covenantee Loan
is secured by a promissory note (the "Note") and a deed of trust (the "Deed of Trust"), which
Deed of Trust was recorded concurrently herewith. The DDA provides that at the close of
escrow for Covenantor's sale of one of the "Affordable Homes" (as that term is defined in
Section Lb hereof) to an Eligible Buyer, Covenantor may transfer a portion of the Covenantee
Loan to such Eligible Buyer, in the form of downpayment assistance provided from the
Covenantor to the Eligible Buyer, and the outstanding balance due from Covenantor to
Covenantee under the Note and the Deed of Trust will automatically be reduced by a like
amount, all as further described in the DDA.
882/015610-0061
380889.09 a12/17/03
C. The Property is within the La Quinta Redevelopment Project No. 2 (the "Project
Area") in the City of La Quinta and is subject to the provisions of the Redevelopment Plan for
the Project Area (the "Redevelopment Plan").
D. The Community Redevelopment Law (California Health and Safety Code 33000
et seq.) provides that a redevelopment agency shall establish covenants running with the land in
furtherance of redevelopment plans.
NOW, THEREFORE, THE COVENANTEE AND THE COVENANTOR AGREE AS
FOLLOWS:
Definitions.
a. "Affordability Period" for each Affordable Home shall be forty-five (45)
years from the date said Affordable Home is transferred to an Eligible Buyer, as evidenced by
the recordation of a Buyer Affordable Housing Agreement by said Eligible Buyer.
b. "Affordable Homes" shall mean the forty (40) single family homes in the
Project that are restricted for sale to Eligible Buyers. Any individual such home shall be referred
to as an "Affordable Home." Each of the Affordable Homes shall be subject to the restrictions of
this Declaration.
C. "Affordable Housing Cost" shall be that purchase price which would
result in monthly housing payments, including the cost for a thirty (30) year mortgage for that
portion of the purchase price which is to be paid in the form of loan proceeds under currently
prevailing mortgage loan rates or the interest rate of any below -market mortgage program for
which such purchaser has obtained a first trust deed loan, of (i) for households which earn not
more than one hundred ten percent (110%) of Riverside County median income, not less than
twenty-eight percent (28%) of the gross income of the household, nor more than thirty-five
percent (35%) of one hundred ten percent (110%) of Riverside County median income adjusted
for family size appropriate for the Affordable Home, or (ii) if the gross income of the household
exceeds one hundred ten percent (110%) of Riverside County median income, not more than
thirty-five percent (35%) of the actual gross income of the household. A sample calculation of
an Affordable Housing Cost for the Affordable Homes is set forth on Exhibit `B", which is
attached hereto and incorporated herein by this reference ("Calculation of Affordable Housing
Costs").
d. "Buyer Affordable Housing Documents" shall collectively refer to the
following documents, all of which shall be required to be executed by each buyer of an
Affordable Home to assure the affordability of the Affordable Home to Eligible Buyers: (i) an
affordable housing agreement that prohibits the resale of the Affordable Home except to an
Eligible Buyer and grants the Covenantee an option to purchase the Affordable Home ("Option
to Purchase") in the event the buyer is unable to locate an Eligible Buyer ("Buyer Affordable
Housing Agreement"); (ii) a Memorandum reciting Covenantee's Option to Purchase ("Buyer
Memorandum re Option to Purchase"); (iii) a promissory note ("Buyer Promissory Note") whose
terms shall include a second deed of trust securing the Buyer Promissory Note ("Buyer Second
Trust Deed"); and (iv) a disclosure statement acknowledging and consenting to all of the
882/015610-0061
380889.09 a12/17/03 -2-
affordability restrictions contained in the aforementioned documents ("Buyer Disclosure
Statement").
e. "Covenantor" shall mean Covenantor and any successor in interest of
Covenantor to the Site or any portion thereof.
f. "Eligible Buyer" shall mean a buyer of one of the Affordable Homes in
the Project who qualifies as a "person or family of moderate income" within the meaning of
California Health and Safety Code Section 50093 (i.e., households whose household income,
adjusted for family size, do not exceed one hundred twenty percent (120%) of the Riverside
County Median Income).
g. "Owner" shall mean an Eligible Buyer to whom Covenantor has conveyed
fee title to one of the Affordable Homes or any successor in interest to said Eligible Buyer to all
or any portion of the Affordable Home.
h. "Proposed Buyer" shall mean a person or family determined to be an
Eligible Buyer, to whom the Covenantor or any successor Owner desires and proposes to
Transfer an Affordable Home.
i. "Purchase Housing Cost" for an Eligible Buyer purchasing an Affordable
Home shall be a cost that includes all of the following associated with that Affordable Home,
estimated or known as of the date of the proposed sale of the Affordable Home:
(1) Principal and interest on a fixed rate mortgage loan including any
rehabilitation loans, and any loan insurance fees associated therewith.
improvements.
(2) Property taxes and assessments.
(3) Fire and casualty insurance covering replacement value of property
(4) Any homeowner association fees.
(5) Estimate of utilities cost.
(6) Estimate of property maintenance costs.
The sum of (1) through (6), inclusive, shall not exceed the Affordable Housing
Cost.
j. "Sales Price" shall mean all sums paid by an Eligible Buyer to Covenantor
for, or in conjunction with, the acquisition of an Affordable Home, including the purchase price
designated in any purchase agreement, consideration for personal property and all other costs and
fees paid by the Eligible Buyer to or for the benefit of the Covenantor.
k. "Transfer" shall mean (i) any sale, assignment, or transfer of an interest in
an Affordable Home, including, without limitation, a fee simple interest, tenancy in common,
882/015610-0061
380889.09 a12/17/03 -3'
joint tenancy, community property, tenancy by the entireties, life estate, or other limited estate,
leasehold interest or any rental of the Affordable Home, or (ii) any interest evidenced by a land
contract.
1. "Unrestricted Homes" shall mean the fourteen (14) single-family homes in
the Project that are not restricted for sale to Eligible Buyers. Each individual such home shall be
referred to as an "Unrestricted Home."
Notwithstanding the foregoing, this Declaration shall be subordinate to the lien of a first
deed of trust against the Property, and shall not impair the rights of any institution or lender
which is the maker of a loan secured by such first deed of trust, or such lender's assignee or
successor in interest, to exercise its remedies under the deed of trust in the event of default under
the first deed of trust by the Covenantor. Such remedies under the first deed of trust include the
right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such
foreclosure or acceptance of a deed in lieu of foreclosure, the affordability covenants and the
transfer restrictions set forth in Sections 1, 2, 3 and 7 of this Declaration as to each lot covered
by this Declaration that is the subject to the foreclosure, shall be forever terminated and shall
have no further effect as to the Property or any transferee thereafter; provided, however, if the
holder of such deed of trust acquired title to the Property pursuant to a deed or assignment in lieu
of foreclosure, said Sections 1, 2, 3 and 7 of this Declaration shall automatically terminate upon
such acquisition of title, provided that (i) the Covenantee has been given written notice of a
default under such first deed of trust; and (ii) the Covenantee shall not have cured the default
under such first deed of trust within the thirty (30) day period provided in such notice sent to the
Covenantee. Notwithstanding any other provision hereof, the nondiscrimination covenants and
the maintenance requirements set forth in this Declaration shall remain in full force and effect as
to the Property and any transferee.
2. Sale of Affordable Homes.
Covenantor agrees that Covenantor shall sell each Affordable Home to an Eligible Buyer
at an Affordable Housing Cost and that during the Affordability Period for such Affordable
Home each subsequent resale thereof by the then -Owner shall be to an Eligible Buyer at an
Affordable Housing Cost. Covenantor agrees that this Declaration shall be recorded against the
Property concurrently with the close of escrow pursuant to which Covenantor acquired fee title
to the Property. Covenantor agrees to commence to market each Affordable Home not later than
the completion of construction of said Affordable Home and agrees to sell the Affordable Homes
on a proportionate basis with the Unrestricted Homes. For example, Covenantor agrees to sell
two (2) Affordable Homes prior to selling each Unrestricted Home. Escrow for the Transfer of
an Unrestricted Home by Covenantor to a purchaser shall not close until after escrow closes for
the Transfer of two (2) of the Affordable Homes.
In the event Covenantor sells all of the homes in the Project, but does not sell all forty
(40) of the Affordable Homes to Eligible Buyers, then within thirty (30) days after the close of
escrow for the last home sold (whether such home is an Affordable Home or an Unrestricted
Home), Covenantor shall be required to (i) repay to Covenantee the then -outstanding balance
owed under the Note, in accordance with the terms thereunder, and, to the extent permitted by
law, (ii) pay to Covenantee the sum of One Hundred Fifty Thousand Dollars ($150,000) for each
882/015610-0061
380889.09 a12/17/03 -4-
Affordable Home that was sold to a buyer who does not qualify as an Eligible Buyer (the
"Damage Amount"); provided, however, that nothing herein shall be deemed to limit
Covenatee's remedy for a violation under this Section 2 to seeking monetary damages, and
Covenantee shall be entitled to pursue any other equitable remedy permitted by law, including
specific performance or injunctive relief, to prevent such a violation. For example, if
Covenantor sells 20 of the homes in the Project as Unrestricted Homes, and 34 of the homes in
the Project as Affordable Homes, then Covenantor shall pay to Covenantee, in addition to all
amounts then -outstanding under the Note, the sum of $900,000 [(40 — 34) x $150,000].
THE PARTIES HERETO AGREE THAT THE DAMAGE AMOUNT CONSTITUTES
A REASONABLE APPROXIMATION OF THE ACTUAL DAMAGES THAT
COVENANTEE WOULD SUFFER DUE TO THE DEFAULTS BY COVENANTOR SET
FORTH IN THIS SECTION 2, CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING
ON THE EXECUTION DATE HEREOF, INCLUDING THE RELATIONSHIP OF THE
DAMAGE AMOUNT TO THE RANGE OF HARM TO COVENANTEE AND
ACCOMPLISHMENT OF COVENANTEE'S PURPOSE OF ASSISTING IN THE
PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE BUYERS THAT REASONABLY
COULD BE ANTICIPATED AND THE ANTICIPATION THAT PROOF OF ACTUAL
DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE DAMAGE AMOUNT SET
FORTH IN THIS SECTION 2 SHALL BE THE SOLE DAMAGES REMEDIES FOR THE
DEFAULTS SET FORTH IN THIS SECTION 2, BUT NOTHING IN THIS SECTION 2
SHALL BE INTERPRETED TO LIMIT COVENANTEE'S REMEDY FOR SUCH DEFAULT
TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE PLACES
PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY HAS BEEN REPRESENTED BY COUNSEL OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED BY COUNSEL TO EXPLAIN THE CONSEQUENCES OF THE
LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED
THIS AGREEMENT.
COVENANTOR'S INITIALS: COVENANTEE'S INITIALS:
Notwithstanding any of the above, nothing herein is intended to preclude the
Covenantee's recovery of its attorney's fees and costs incurred to enforce this Section, as
provided in Section 14.
For purposes of satisfying the requirement that all of the Affordable Homes shall be
occupied by Eligible Buyers: (a) an individual or family who qualifies as an Eligible Buyer at
the time he or she first takes title to an Affordable Home will be deemed an Eligible Buyer as
long as he or she continues to hold title to such Affordable Home even though the Eligible Buyer
subsequently ceases to meet the income requirements of an Eligible Buyer, and (b) when an
Owner releases title to an Affordable Home, such home will be considered as occupied by an
Eligible Buyer if it is held vacant and available for such occupancy until title is transferred to
another Eligible Buyer.
882/015610-0061
380889.09 a12/17/03 -5-
3. Restrictions on Transfer by Sale of the Property or AU Affordable Home.
a. For the duration of the Affordability Period, Covenantor, for itself and any
subsequent Owner of an Affordable Home, hereby subjects the Property to certain restrictions
and limits the price at which Covenantor or any Owner of an Affordable Home may sell and/or
resell said Affordable Home and the persons to whom Covenantor or any Owner of an
Affordable Home may sell said Affordable Home.
b. COVENANTOR UNDERSTANDS THAT THE DETERMINATION OF
THE SALES PRICE FOR THE AFFORDABLE HOMES CAN BE MADE ONLY AT THE
TIME OF THE PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST
RATES, PROPERTY TAXES AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED AND THAT THE SALES PRICE PERMITTED HEREUNDER FOR THE
AFFORDABLE HOMES MAY NOT INCREASE OR DECREASE IN THE SAME MANNER
AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS
RESTRICTION. COVENANTOR FURTHER ACKNOWLEDGES THAT IN SETTING THE
SALES PRICE FOR THE AFFORDABLE HOMES, THE PRIMARY OBJECTIVE OF THE
COVENANTEE AND THIS DECLARATION IS TO PROVIDE HOUSING TO ELIGIBLE
BUYERS AT AN AFFORDABLE HOUSING COST. THE SALES PRICE MAY BE LESS
THAN OTHER SIMILAR PROPERTIES WHICH HAVE NO RESTRICTIONS.
Covenantor's Initials
Transfer of an Affordable Home.
Covenantor may Transfer an Affordable Home only in strict accordance with the
provisions of this Declaration. Specifically, during the Affordability Period, Covenantor may
transfer an Affordable Home (i) only to an Eligible Buyer whose assets immediately prior to the
close of escrow for the Affordable Home do not exceed the limits set forth in the Asset
Limitation Requirements set forth in the La Quinta Housing Program Implementation Manual,
(ii) only if the Purchase Housing Cost does not exceed the Affordable Housing Cost for the
Eligible Buyer; and (iii) only if the Transfer has previously been approved in writing by the
Covenantee.
In order to comply with this Subsection 3(c), Covenantor must calculate the Affordable
Housing Cost for the Proposed Buyer of the Affordable Home in accordance with the definition
set forth in Section l (c) of this Declaration. The Covenantor should contact the Covenantee
housing staff to obtain assistance in determining this calculation. After calculating the
Affordable Housing Cost for the Proposed Buyer, the Covenantor must ensure that the sum of
the Sales Price and all costs listed in the definition of Purchase Housing Cost set forth in Section
l (i) of this Declaration does not exceed an Affordable Housing Cost. The calculation of the
Sales Price under this Section 3(c) is illustrated by example in the Calculation of Affordable
Housing Cost.
d. Notwithstanding anything to the contrary in this Section 3, at close of the
escrow pursuant to which the Covenantor shall transfer an Affordable Home to an Eligible
882/015610-0061
380889.09 a12/17/03 -6-
Buyer, the Eligible Buyer shall execute a complete set of Buyer Affordable Housing Documents
as described in Section 1(d) hereof.
e. The foregoing provisions will apply to every successive Transfer during
the Affordability Period except that the then -Owner shall be responsible for complying with the
requirements of the Covenantor as set forth in this Section 3.
4. Process to Complete Transfer by Sale of Affordable Homes.
Prior to the Transfer by sale of an Affordable Home, Covenantor shall do all of the
following:
a. Notice to Covenantee: Covenantor shall send to the Covenantee in care of
the La Quinta Housing Department (or its successor), at P.O. Box 1504, La Quinta, California
92253, the form attached hereto and incorporated herein as Exhibit "C" ("Request for Approval
of Proposed Buyer") fully completed and executed by the Covenantor and the Proposed Buyer.
b. Qualification of Proposed Buyer. No Transfer shall occur unless and until
determination is made based on the Request for Approval of Proposed Buyer that the Proposed
Buyer (i) intends to occupy the Affordable Home as the Proposed Buyer's principal residence
and (ii) is an Eligible Buyer whose assets at the close of escrow for the Affordable Home do not
exceed the limits set forth in the Asset Limitation Requirements, which are attached to the La
Quinta Housing Program Implementation Manual as Attachment 1. Each Request for Approval
of Proposed Buyer shall include a statement by the Proposed Buyer certifying its intent with
regard to the occupancy of the Affordable Home and as to the truth and accuracy of all
information supplied as to the Gross Income (calculated as set forth in 25 Cal. Code of Regs.,
Section 6914) of the Proposed Buyer. Covenantor shall certify pursuant to the Request for
Approval of Proposed Buyer the information provided on said request form. Covenantor shall be
entitled to rely on the information on the Request for Approval of Proposed Buyer and
attachments thereto in making the determination required by this subsection 4(b) unless the
Covenantor has knowledge of, or a reasonable basis for belief as to the inaccuracy or falsehood
of the Request for Approval of Proposed Buyer.
C. Affordable Home Sales Price. The Sales Price for the Affordable Home
shall not exceed the maximum price at which the Purchase Housing Cost to be paid by the
Proposed Buyer would not exceed the Affordable Housing Cost. The calculation of the Sales
Price under this subsection is illustrated by the Calculation of Affordable Housing Cost.
However, in determining the Affordable Housing Cost, the family size of the Proposed Buyer
shall be deemed to be 1 person in the case of a studio Affordable Home, 2 persons in the case of
a 1 bedroom Affordable Home, 3 persons for a 2 bedroom Affordable Home, 4 persons for a 3
bedroom Affordable Home, or 5 persons for a 4 bedroom Affordable Home. If the actual family
size of the Proposed Buyer is larger, then the actual family size shall be used.
d. Certificates from Covenantor and Proposed Buyer. With respect to each
initial sale of an Affordable Home, Covenantor shall submit to the Covenantee, not later than
four (4) weeks prior to close of escrow on the sale of the Affordable Home, a certificate that (i)
the Covenantor has made the affirmative determinations required by Section 4(b) above and (ii)
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the Sales Price conforms with Section 4(c) above. The Covenantor shall concurrently submit to
the Covenantee the Request for Approval of Proposed Buyer and all attachments thereto and all
other documents or material with regard to information required by Section 4(a) and/or (b)
above, whether or not relied on by the Covenantor. Further, the Covenantor and Proposed Buyer
each shall certify in writing, in a form acceptable to the Covenantee, that the Transfer shall be
closed in accordance with, and only with, the terms of the sales contract and other documents
submitted to and approved by the Covenantee and that all consideration delivered by the
Proposed Buyer to Covenantor has been fully disclosed to the Covenantee. The written
certificate shall also include a provision that, in the event a Transfer is made in violation of the
terms of this Declaration or false or misleading statements are made in any documents or
certificate submitted to the Covenantee for its approval of the Transfer, the Covenantee shall
have the right to file an action at law or in equity to seek termination and/or rescission of the
sales contract and/or declare the sale void, notwithstanding the fact that the Transfer may have
closed and become final as between Covenantor and its Proposed Buyer. In the event
Covenantor fails to comply with Sections 4(a) or 4(b) above, any costs, liabilities or obligations
incurred by the Covenantor and its Proposed Buyer for the return of any monies paid or received
or for any costs and legal expenses, shall be borne jointly and severally by the Covenantor and its
Proposed Buyer and such parties shall hold the City of La Quinta ("City") and Covenantee
harmless and reimburse their expenses, legal fees and costs for any action and City and/or
Covenantee take in enforcing the terms of this Section 4(d).
e. Execution of Buyer Affordable Housing Documents. Notwithstanding
anything to the contrary in this Agreement, at close of escrow of the sale of the Affordable Home
from the Covenantor to an Eligible Buyer, the Eligible Buyer shall execute a complete set of
Buyer Affordable Housing Documents. The Buyer Affordable Housing Documents require,
among other things, that during the Affordability Period for said Affordable Home, (i) the
Affordable Home must be owner -occupied at all times and cannot be rented or leased; (ii) the
Affordable Home may only be Transferred at an Affordable Housing Cost to an Eligible Buyer;
and (iii) the maximum permitted sales price for the Affordable Home may be less than fair
market value.
f. Delivery of Documents. Upon the close of the proposed Transfer, the
Covenantor shall provide the Covenantee with a certified copy of the recorded documents, a
copy of the final sales contract, settlement statement, escrow instructions, all certificates required
by this Section 4 and any other documents which the Covenantee may request.
COVENANTOR UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED TRANSFER, TAKING INTO CONSIDERATION INTEREST RATES, THE
TERMS OF SALE OFFERED TO AND THE ECONOMIC CIRCUMSTANCES OF THE
PROPOSED BUYER AND OTHER FACTORS THAT CANNOT BE ACCURATELY
PREDICTED, AND THAT THE TRANSFER PRICE PERMITTED HEREUNDER MAY BE
LESS THAN THE FAIR MARKET VALUE OF THE AFFORDABLE HOME AND MAY
NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL
PROPERTY WHICH IS NOT ENCUMBERED BY THIS RESTRICTION. COVENANTOR
FURTHER ACKNOWLEDGES THAT IN SETTING THE TRANSFER PRICE THE
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PRIMARY OBJECTIVE OF THE COVENANTEE AND THIS DECLARATION IS TO
PROVIDE HOUSING TO ELIGIBLE BUYERS AT AN AFFORDABLE HOUSING COST.
The covenant contained in this Section 4 shall run with the land and, as to each
Affordable Home, shall automatically terminate and be of no further force or effect upon the
Expiration Date set forth in Section 12 hereof.
5. Nondiscrimination Covenants
Covenantor by and for itself, its successors and assigns, and all persons claiming under or
through them that there shall be no discrimination against or segregation of any person or group
of persons on account of race, color, religion, sex, marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the Property, nor shall
Covenantor itself, or any person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees, or vendees in the Property.
Covenantor, and its successors and assigns, shall refrain from restricting the rental or
lease (if permitted by Covenantee) or sale of the Property on the basis of race, color, religion,
sex, marital status, national origin or ancestry of any person. All such deeds, leases, or contracts
shall contain or be subject to substantially the following nondiscrimination or nonsegregation
clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, religion, sex, marital status, national origin or ancestry in the
sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed,
nor shall the grantee himself or herself or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through him
or her, and this lease is made and accepted upon and subject to the following conditions:
"There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, religion, sex, marital status, ancestry or national origin in the
leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the premises herein
leased nor shall the lessee himself or herself, or any person claiming under or through him or her,
establish or permit any such practice or practices of discrimination or segregation with reference
to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or
vendees in the premises herein leased."
C. In contracts: "There shall be no discrimination against or segregation of,
any person, or group of persons on account of race, color, religion, sex, marital status, ancestry
or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
8821015610-0061
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premises, nor shall the transferee himself of herself, or any person claiming under or through him
or her, establish or permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees or
vendees of the premises."
Nothing in this Section 5 shall be construed to authorize the rental or lease of the
Property if such rental or lease is not otherwise permitted. The covenants in this paragraph 5
shall run with the land in perpetuity.
6. Maintenance of Pronerty
Covenantor shall properly maintain the buildings, landscaping and yard areas on the
Property as follows:
a. No improperly maintained landscaping shall be visible from public rights -
of -way, including:
(1) no lawns with grasses in excess of six (6) inches in height;
(2) no untrimmed hedges;
(3) no trees, shrubbery, lawns, and other plant life dying from lack of
water or other necessary maintenance;
and
(4) no trees and shrubbery grown uncontrolled without proper pruning;
(5) no vegetation so overgrown as to be likely to harbor rats or vermin;
(6) no dead, decayed, or diseased trees, weeds, and other vegetation.
b. No yard areas shall be left unmaintained, including:
(1) no broken or discarded furniture, appliances, and other household
equipment stored in yard areas for periods exceeding one (1) week;
(2) no packing boxes, lumber, trash, dirt, and other debris stored in
yards for periods exceeding one (1) week in areas visible from public property or neighboring
properties;
(3) no unscreened trash cans, bins, or containers stored for
unreasonable periods in areas visible from public property or neighboring properties; and
areas.
(4) no vehicles parked or stored in areas other than approved parking
C. No buildings may be left in an unmaintained condition, including:
(1) no violations of state law, Uniform Codes, or City ordinances;
882/015610-0061 -1 Q-
380889.09 a12/1'7/03
(2) no condition that constitutes an unsightly appearance that detracts
from the aesthetics or property value of the subject property or constitutes a private or public
nuisance;
(3) no broken windows or chipped, cracked, or peeling paint; and
(4) no conditions constituting hazards and/or inviting trespassers or
malicious mischief, and
(5) no graffiti.
7. Covenantee's Right of Reverter
Covenantee shall have the additional right, at its option, to reenter and take possession of
the Property, or portion thereof, with all improvements thereon and revest in the Covenantee the
estate theretofore conveyed to the Covenantor, if after conveyance of title to the Property and
prior to issuance of the Certificate of Completion for the lot or lots in question, the Covenantor
shall:
a. Fail to proceed with the construction of the Project as required by the
DDA (subject to any force majeure delays) for a period of ninety (90) days after written notice of
such abandonment or suspension from the Covenantee subject to any force majeure delays under
Section 702 of the DDA; or
b. Abandon or substantially suspend construction of the improvements for a
period of ninety (90) days (subject to any force majeure delays) after written notice of such
abandonment or suspension from the Covenantee; or
C. Transfer or suffer any involuntary transfer of the Property or any part
thereof in violation of the DDA.
Such right to reenter, repossess and revest to the extent provided in this Declaration shall
be subordinate and subject to and be limited by and shall not defeat, render invalid or limit:
(1) Any mortgage, deed of trust or other security instrument permitted
by the DDA; or
(2) Any rights or interest provided in the DDA for the protection of the
holder of such mortgages, deeds of trust or other security instruments.
Upon the revesting in the Covenantee of title to the Property or any part thereof as
provided in this Section 7, the Covenantee shall, pursuant to its responsibilities under state law,
use its best efforts to resell the Property or part thereof as soon and in such manner as the
Covenantee shall find feasible and consistent with the objectives of such law and of the
Redevelopment Plan to a qualified and responsible party or parties (as determined by the
Covenantee) who will assume the obligation of making or completing the improvements, or such
other improvements in their stead, as shall be satisfactory to the Covenantee and in accordance
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with the uses specified for the Property or part thereof in the Redevelopment Plan. Upon such
resale of the Property, the proceeds thereof shall be applied:
(i) First, to reimburse the Covenantee on its own behalf or on
behalf of the City for all costs and expenses incurred by the Covenantee (excluding salaries to
personnel and other items of overhead of the Covenantee or the City) in connection with the
recapture, management and resale of the Property or part thereof (but less any income derived by
the Covenantee from the Property or part thereof in connection with such management); all
taxes, assessments and water and sewer charges with respect to the Property or part thereof (or,
in the event the Property is exempt from taxation or assessment or such charges during the period
of ownership, then such taxes, assessments or charges as determined by the County of Riverside
assessing official as would have been payable if the Property were not so exempt); any payments
made or necessary to be made to discharge or prevent from attaching or being made any
subsequent encumbrances or liens due to obligations, defaults or acts of the Covenantor; any
expenditures made or obligations incurred with respect to the making or completion of the
improvements or any part thereof on the Property or part thereof; and any amounts otherwise
owing the Covenantee by the Covenantor; and
(ii) Second, to reimburse the Covenantor up to the amount
equal to the sum of. (a) the Purchase Price paid to the Covenantee by the Covenantor for the
Property (or allocable to the part thereof); plus (b) the costs and expenses incurred by the
Covenantor for the development of the Property and for construction of the improvements
existing on the Property at the time of the reentry and repossession; less (c) any gains or income
withdrawn or made by the Covenantor from the Property or the improvements thereon.
Any balance remaining after such reimbursements shall be retained by the Covenantee as
its property.
To the extent that the rights established in this Section 7 involve a forfeiture, it must be
strictly interpreted against the Covenantee, the party for whose benefit it is created. The rights
established in this Section 7 are to be interpreted in light of the fact that the Covenantee will
convey the Property to the Covenantor for development and not for speculation.
8. Covenants Do Not Impair Liens.
No violation or breach of covenants, conditions, restrictions, provisions, or limitations
contained in this Declaration shall defeat or render invalid or in any way impair the lien or
charge of any mortgage or deed of trust or security instrument.
9. Conflict with Other Laws, Severability.
In the event that any provision of this Declaration is found to be contrary to applicable
law, then the contrary provisions of this Declaration shall be deemed to mean those provisions
which are enforceable and consistent with such laws and policies. The remaining portions of this
Declaration shall be deemed modified in a manner which is consistent with the goals and intent
of this Declaration to provide housing at an Affordable Housing Cost to Eligible Buyers.
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Every provision of this Declaration is intended to be severable. In the event any term or
provision of this Declaration is declared by a court of competent jurisdiction to be unlawful,
invalid or unenforceable for any reason, such determination shall not affect the balance of the
terms and provisions of this Declaration, which terms and provisions shall remain binding and
enforceable.
10. Covenants for Benefit of Cily and Covenantee.
All covenants without regard to technical classification or designation shall be binding
for the benefit of the Covenantee and the City and such covenants shall run in favor of the
Covenantee and the City for the entire period during which such covenants shall be in force and
effect, without regard to whether the Covenantee or the City is or remains an owner of any land
or interest therein to which such covenants relate. The Covenantee and the City, in the event of
any breach of any such covenants, shall have the right to exercise all the rights and remedies and
to maintain any actions at law or suits in equity or other proper legal proceedings to enforce and
to cure such breach to which it or any other beneficiaries of these covenants may be entitled
during the term specified for such covenants, except the covenants against discrimination which
may be enforced at law or in equity at any time in perpetuity.
11. Notices, Demands and Communications.
Written notices, demands and communications between the Covenantor and the
Covenantee shall be sufficiently given if (i) delivered by hand, (ii) delivered by reputable same -
day or overnight courier service that provides a receipt showing date and time delivery, or (iii)
dispatched by registered or certified mail, postage prepaid, return receipt requested, as follows:
Covenantor: CP Development La Quinta, LLC
77-900 Avenue of the States
Palm Desert, CA 92611
Attn: Richard Oliphant
copy to: Selzer, Ealy, Hemphill & Blasdel, LLP
777 Tahquitz Canyon Way, Suite 328
Palm Springs, CA 92262
Attn: Emily Perri Hemphill
and
Genesis Hotel Development LLC
76890 Sandpiper Drive
Indian Wells, CA 92210
Attn: Francis A. Wong
Covenantee: La Quinta Redevelopment Agency
Attention: Executive Director
78-495 Calle Tampico
La Quinta, CA 92253
882/015610-0061
380889.09 a12/17/03 -13-
copy to: Rutan & Tucker, LLP
611 Anton Blvd., Suite 1400
Costa Mesa, CA 92626
Attn: M. Katherine Jenson, Esq.
Such addresses for notice may be changed from time to time upon notice to the other
party.
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand or by reputable delivery service that provides a receipt with date and time of
delivery and shall be deemed received on the third (3rd) calendar day from the date it is
postmarked if delivered by registered or certified mail, postage prepaid, return receipt requested.
12. Expiration Date.
This Declaration shall automatically terminate and be of no further force or effect as to
each Affordable Home as of the termination of the Affordability Period for said Affordable
Home, as described in Section 1 a hereof.
13. Effect on Unrestricted Homes.
Notwithstanding anything herein to the contrary, with the exception of the
nondiscrimination provisions set forth in Section 5 hereof, the provisions in this Declaration shall
be effective only against the Affordable Homes, and shall not be effective or enforceable against
the Unrestricted Homes.
14. Attorney's Fees. In the event any party hereto brings suit to enforce the terms of
this Declaration or on account of breach hereof, the party not prevailing in such suit shall pay all
reasonable costs and expenses incurred by the other party in such suit, including, without
limitation, court costs, attorneys' fees, and expert witness fees
15. Counterparts.
This Declaration may be executed in counterparts each of which, when both Covenantor
and Covenantee have signed this Declaration, shall be deemed an original and shall constitute
one and same instrument.
[end — signature page follows]
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IN WITNESS WHEREOF, the Covenantee and Covenantor have caused this instrument
to be executed on their behalf of their respective officers hereunto duly authorized as of the date
set forth above.
Attest:
Secretary
(Covenantee's and Covenantor's Signature
must be acknowledged by a Notary Public)
"COVENANTEE"
THE LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and politic
By:
Its:
Executive Director
"COVENANTOR"
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
APPROVED AS TO FORM
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
882/015610-0061
380889.09 a12/17/03 -15-
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
before me,
personally known to me (or 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.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
Notary Public
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
380889.09 a12/17/03 - 16-
STATE OF CALIFORNIA )
) ss
COUNTY OF
On
personally appeared
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061 _ l %-
380889.09 a]2/17/03
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
[The legal description of the Property will be inserted prior to recordation of this
Declaration. The term "Property" refers to that certain parcel of real property
identified in the DDA as "Residential Parcel 7."]
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EXHIBIT B
CALCULATION OF AFFORDABLE HOUSING COST
"Affordable Housing Cost" for the purposes of the Affordable Housing Agreement is that
purchase price (inclusive of the proceeds of the Homebuyer Assistance) which would result in a
monthly housing cost which is not less than twenty-eight percent (28%) of the gross income of
the purchaser and does not exceed the greater of (a) the product of thirty-five percent (35%)
times one hundred ten percent (110%) of Riverside County median income adjusted for family
size appropriate for the unit for Eligible Buyers earning not more than one hundred ten percent
(110%) of Riverside County median income, or (b) the product of thirty-five percent (35%) of
the actual gross income of the household for Eligible Buyers earning more than one hundred ten
percent (110%) of Riverside County median income. The following is a worksheet of how to
calculate Affordable Housing Cost using the two methods set forth above:
A. All Moderate Income Buyers
Monthly housing costs may not exceed 1/12 of 35% x 110% of Riverside County Median
Income adjusted for family size appropriate for the unit.
For a two- bedroom housing Unit, monthly housing costs may not exceed 1/12 of 35% x
110% of Riverside County Median Income for a family of 3 (example of Median Income is
$45,900 in Riverside County pursuant to regulations issued by the California Department of
Housing and Community Development in March 2003, or $1,473).
Monthly Housing Costs include:
a. Mortgage Principal and Interest
b. Private Mortgage Insurance
C. Property Taxes
d. Fire/Casualty Insurance
e. Property Maintenance
f. Utilities Allowance
g. Homeowner's Association ("HOA") Fees
For example, in the following situation, for a 2 bedroom housing Unit, assuming
an 8% interest rate on a conventional loan, and assuming a down payment of at least 3% of the
purchase price and an average second trust deed loan from the Agency of $60,000, the maximum
loan amount would be $137,880 and the maximum purchase price would be $204,000 (down
payment of $6,120 + Agency Loan of $60,000 + first trust deed loan of $137,880). The
foregoing is based upon the following monthly housing costs:
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380889.09 a12/17/03
a. Mortgage Principal and Interest $1,005.00
b. Private Mortgage Insurance (Included in $0.00
Mortgage Interest Rate)
C. Property Taxes $203.00
d. Fire/Casualty Insurance (Included in HOA) $45.00
e. Property Maintenance $20.00
f. Utilities Allowance $65.00
g. Homeowner's Association $120.00
TOTAL: $1,458.00
B. Buyer's Income is between 110% and 120% of Riverside County
Median Income
Under method (b), monthly housing costs may not exceed 1/12 of 35% of the purchaser's
income, instead of the formula set forth in paragraph (a) above.
For example, if the purchaser is a three -person household earning $54,000 monthly
housing costs may not exceed $1,575. The maximum sales price would be calculated in the
same manner as in paragraph (a) above. For example, if all the other assumptions stated in that
paragraph also apply herein, the purchaser's maximum loan amount would be $149,520, and the
maximum purchase price, absent the Agency Second Trust Deed Loan would be $156,000. The
foregoing is based upon the following monthly housing costs:
a. Mortgage Principal and Interest $1,090.00
b. Private Mortgage Insurance (Included in $0.00
Mortgage Interest Rate)
C. Property Taxes $225.00
d. Fire/Casualty Insurance (Included in HOA) $50.00
e. Property Maintenance $20.00
f. Utilities Allowance $65.00
g. Homeowner's Association $120.00
TOTAL: $1,570.00
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The foregoing are intended to be examples of how to calculate affordable housing cost, and the
actual numbers will vary depending upon such factors as changes in median income, interest
rates, amount of down payment, etc.
Please see attached chart of Riverside County median income for moderate income purchasers.
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RIVERSIDE COUNTY
2003 Affordable Housing Costs for Home Purchase Programs
for Persons of Moderate Income (3)
(Income figures based on Department of Housing and Community Development Income Limits dated March, 2003)
1 Person Household
2 Person Household
3 Person Household
Median
Income $35,700
Median
Income $40,800
Median
Income $45,900
Annual
Income(')
Monthly
Affordable
Housing
Cost(z)
Annual
Income
Monthly
Affordable
Housina Cost
Annual
Income
Monthly
Affordable
Housing Cost
$42,850
$1,145
$48,950
$1,309
$55,100
$1,473
4 Person Household
5 Person Household
6 Person Household
Median
Median
Median
Income
$51,000
Income
$55,100
Income
$59,150
Monthly
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Annual
Affordable
Income
Housing Cost
Income
Housina Cost
I Income
Housing Cost
$61,200
1 $1,636
$66,100
$1,768
1 $71,000
$1,898
7 Person Household
8 Person Household
Median
Median
Income
$63,250
Income
$67,300
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Income
Housing Cost
I Income
Housing Cost
$75,900
1 $2,029
1 $80,800
$2,159
DEFINITIONS:
1. Annual Income: Gross income from all sources for all members of the
household.
2. Monthly Housing Costs: Amount of mortgage payment principal and interest,
mortgage insurance, property taxes, and property insurance.
3. Moderate Income Affordable Housing Costs: Assumes affordable housing costs
computed at 35% of 110% of median income; may not be less than 28% of
household's gross income.
882/015610-0061
380889.09 a12/17/03
EXHIBIT C
REQUEST FOR APPROVAL OF PROPOSED BUYER
[SEE ATTACHED PAGES]
882/015610-0061
380889.09 a12/17/03
REQUEST FOR APPROVAL OF PROPOSED BUYER
THIS FORM MUST BE DELIVERED TO THE AGENCY BEFORE PROCEEDING WITH
ANY TRANSFER OF THE PROPERTY.
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Project Officer
Re: Request for Approval of Proposed Buyer
To Whom It May Concern:
The undersigned is the owner of real property in La Quinta, located at
(the "Property"), which was developed
with assistance from the Agency ("Owner").
The Owner now desires to transfer the Property and by this letter is requesting the
Agency to approve the proposed buyer.
1. The Proposed Buyer is:
Name:
Current
Address:
Telephone
Number:
2. The terms of the proposed transfer are
(a) Sales price of $ This sales price is based on the lesser of
(i) Fair market value; or
(ii) The maximum price at which the Purchase Housing Cost of the
Proposed Buyer would not exceed Affordable Housing Cost.
The calculation of the Sales Price under this subsection (ii) is
illustrated in Exhibit "B" to the Declaration of Covenants,
Conditions, and Restrictions for Property.
882/015610-0061
380889.09 a12/17/03
IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE
PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING INTO
CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE HOUSING
COST.
(b) Price of any personal property being sold by the Owner to the proposed buyer:
$ . (If none, so state.)
(c) The price of $ to be paid by the proposed buyer for any services of
Owner. (If none, so state).
(d) All other amounts of money or other consideration, if any, concerning the
Property or any other matter to be paid by the proposed buyer to the Owner: $
(If none, so state.)
(e) Sources of payment of sales price:
Sales price $
Cash down payment $
1 st loan $
2nd loan $
Other (describe) $
Total $
(f) The financing obtained by the proposed buyer to purchase the Property is as
follows:
1 st Loan:
Loan amount $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
882/015610-0061
380889.09 a12/17/03 -2-
Lender:
Lender's address:
2nd Loan:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
Other Loans: (describe, if none, so state)
(g) The monthly Purchase Housing Cost to be paid by the proposed buyer:
1 st loan monthly payment:
$
2nd loan monthly payment:
$
Other loans monthly payment:
$
Taxes and assessments (1/12 of
$
yearly taxes and assessments):
Insurance (1/12 of yearly
$
premium):
Homeowner's dues:
$
Total:
$
882/015610-0061
380889.09 a12/17/03 _3_
3. The proposed buyer represents, warrants and covenants the following:
(a) The Property will be the principal residence of the proposed buyer.
(b) The combined maximum annual income for all household members of the
proposed buyer is $ . (This figure must include all sources of income.)
(c) The proposed buyer will deliver to the Agency a signed financial statement on a
form acceptable to the Agency.
4. The proposed buyer's household consists of the following persons who will reside in the
Property:
Adults (18 or over) - [name of each]:
Minors (under 18) [name of each]:
5. The proposed buyer must submit to the Owner, on a form available from the Owner, an
income certification so the Owner may determine if the proposed buyer is an Eligible Buyer.
6. A true and correct copy of the proposed buyer's most recent tax return to the U.S.
Internal Revenue Service is attached hereto.
7. A true and correct copy of the purchase and sale or other agreement between the Owner
and the proposed buyer is attached hereto.
882/015610-0061
380889.09 a12/17/03 -4-
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
OWNER:
Date
signature
print name
street address
city
PROPOSED BUYER:
Date
signature
print name
signature
print name
telephone
state zip code
signature
print name
street address telephone
city state zip code
882/015610-0061
380889.09 a12/17/03 -5-
Owner's Certification
Based on the Proposed Buyer's Certificate above, and all documents attached hereto, Owner
hereby certifies that:
(1) Proposed Buyer is an Eligible Buyer; and
(2) The monthly Purchase Housing Cost to be paid by the Proposed Buyer shall not
exceed the monthly Affordable Housing Cost.
[Capitalized terms used above are defined in the Agreement to which this certificate is attached
unless otherwise provided herein.]
OWNER:
[Name]
Date:
882/015610-0061
380889.09 a12/17/03 -6-
ATTACHMENT NO. 16
RELEASE OF CONSTRUCTION COVENANTS
[See Following Pages]
882/015610-0061
380889.09 a]2/17/03
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
CP DEVELOPMENT LA QUINTA, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
This document is exempt from the payment of a recording
fee pursuant to Government Code Section 27383
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release") is made by
the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic (the
"Agency"), in favor of CP DEVELOPMENT LA QUINTA, LLC, a California limited liability
company (the "Developer"), as of ,
RECITALS
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA") dated , 2003 concerning the
redevelopment of certain real property situated in the City of La Quinta, California, a portion of
which is more fully described in Exhibit "A" attached hereto and made a part hereof (the
"Property").
B. As referenced in Section 509 of the DDA, the Agency is required to furnish the
Developer or its successors with a Release of Construction Covenants upon Developer's
completion of construction of the
[Insert applicable Phase of Development,
as that term is described in Section 310 of the DDA] (as defined in Section 100 of the DDA),
which Release is required to be in such form as to permit it to be recorded in the Recorder's
office of Riverside County. This Release is conclusive determination of satisfactory completion
of the construction and development required by the DDA.
C. The Agency has conclusively determined that such construction and development
has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The
[Insert applicable Phase of Development, as that
term is described in Section 310 of the DDA]to be constructed by the Developer has been fully
and satisfactorily completed in conformance with the DDA. Any operating requirements and all
use, maintenance or nondiscrimination covenants contained in the DDA and other documents
executed and recorded pursuant to the DDA shall remain in effect and enforceable according to
their terms.
882/015610-0061
380889.09 a12/17/03
2. This Release of Construction Covenants does not constitute evidence of
compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage or
any insurer of a mortgage security money loaned to finance the work of construction if
improvements and development of the Property, or any part hereof.
3. This Release of Construction Covenants does not denote completion of any work
required to be completed, other than on the Property.
4. This Release of Construction Covenants is not a notice of completion as referred
to in Section 3093 of the California Civil Code.
5. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
8821015610-0061
380889.09 a]2/17/03 -2-
IN WITNESS WHEREOF, the Agency has executed this Release as of the date set
forth above.
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
By:
Its:
ATTEST:
Agency Secretary
APPROVED BY DEVELOPER:
CP DEVELOPMENT LA QUINTA, LLC
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
882/015610-0061
380889.09 a12/17/03 -3-
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[TO BE ATTACHED]
882/015610-0061
380889.09 a12/17/03 _4_
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On , before me,
personally appeared
personally known to me (or 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.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA )
) ss
COUNTY OF )
On
personally appeared
Notary Public
before me,
personally known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
390889.09 a12/17/03 -5-
ATTACHMENT NO.17
PRELIMINARY DEVELOPMENT BUDGET
[See attached individual preliminary development budgets for each of the (i) Sanctuary Villas
Development, (ii) Suites Hotel, (iii) Casitas Development, (iv) Parcel 5 Residential Development
and Parcel 7 Residential Development, (iv) Medical Office/Surgical Facility, (v) Parcel 1
Restaurant and Parcel 2 Restaurant, and (vi) Seeley Drive]
882/015610-0061
380889.09 a12/17/03
PRELIMINARY DEVELOPMENT BUDGET FOR
Sanctuary Villas Development
LAND COST
Purchase Price at FMV
Property Transfer Tax
HARD COSTS
Building Costs
Parking
On/Off site Improvements
Contingency
SOFT COSTS
Architects & Consultants
General/Administrative Costs
Other Fees
HPO & Warranty
Marketing
Property Tax
Condo Documentation
Financing & Inspections
Insurance
Feasibility/Appraisal
Fees, Permits, Connections
Post Construction / Strata Fee
Contingency
Total
INTEREST COSTS
Interest Costs
Contingency at 10%
TOTAL PROJECT COSTS
Amount
$ 1,003,622
$ 1,003,622 $ 1,003,622
$ 4,900,500
$ 162,500
1,087,347
310,000
$ 6,460,347 $ 6,460,347
$ 294,030
625,450
100,000
39,000
540,800
10,036
36,400
50,000
208,000
25,000
154,514
20,000
110,000
$ 2,213,230 $ 2,213,230
$ 402,000
40,200
$ 442,200 $ 442,200
$ 109119,400 $ 10,119,400
882/015610-0061
380889.09 a12/17/03 -2-
PRELIMINARY DEVELOPMENT BUDGET FOR
Suites Hotel
1. CONSTRUCTION
$7,117,947
2. ARCHITECTURE, ENGINEERING, DESIGN
$162,120
3. CITY FEES AND DEVELOPMENT COST CHARGES
$681,067
4. FURNITURE, FIXTURES AND EQUIPMENT
$1,408,000
5. PROPERTY EXPENSES
$142,359
6. GENERAL AND ADMINISTRATIVE COST
$1,226,000
7. PRE -OPENING AND OPENING EXPENSES
$134,000
8. FINANCING
$890,125
9. SUBTOTAL INCLUDING CONTINGENCY
$11,761,618
10. CASH FLOW SHORT FALL RESERVE FUND
(WORKING CAPITAL AND GENERAL CONTINGENCY)
$1,993,233
11. TOTAL PROJECT DEVELOPMENT COSTS
$13,754,851
12. LAND COST $0
13. TOTAL PROJECT COSTS $13,754,851
882/015610-0061
380889.09 a12/17/03 -3_
PRELIMINARY DEVELOPMENT BUDGET FOR
Casitas Development
LAND COST
Per DDA
Property Transfer Tax
HARD COSTS
Building Costs
On/Off site Improvements
Surface Parking
Contingency
SOFT COSTS
Architects & Consultants
General and Administrative Costs
Permits and Fees
Otherfees
HPO & Warranty
Marketing
Property Tax
Condo Documentation, Legal & Survey
Financing & Inspections
Insurance
Appraisal
Administration
Fees, Permits, Connections
Post Construction / Condo Fee
Contingency
Total
FURNITURE FIXTURE AND EQUITYPMENT
INTEREST COSTS
Interest Costs
Contingency at 10%
Total
TOTAL PROJECT COSTS
$ 2,620,134
$ 50,403
$ 11,631,880
2,169,373
613,600
1,200,000
$ 1,447,446
1,624,000
693,636
100,000
198,000
1,645,616
57,667
1,400
100,000
1,056,000
25,000
10,000
50,000
20,000
320,000
$ 1,508,625
150,863
$ 2,670,537
$ 15,614,853
$ 7,348,765
$ 2,840,000
$ 1,659,488
$ 30,133,642
882/015610-0061
380889.09 a12/17/03 -4-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Costs
Number of Units
Land
Site Improvements
Architectural, Structural, T24
Civil/ Soil Engineering
House Construction
Landscape Front & Common
Pools & BBQ Area
Developer/ Builder, Overhead
Site Supervision
Permits & Fees
Fin. Costs (Pts, Int., misc.)
Legal, Insurance, HOA, Taxes
Contingency & Marketing
Total Hard Costs
Soft Costs -Comm. & Closing
Sales
Total Estimated Gross Sales
Estimated Project Profit
Project Summary
In 000's Price Per
Unit
67
2,550
38.1
1,562
23.3
150
2.2
195
2.9
6,644
99.2
380
5.7
155
2.3
600
9.0
150
2.2
1,022
15.3
751
11.2
285
4.3
446
6.7
14,890 222.4
525 7.8
Total Costs 15,415 230.2
17,485 261.0
2,070 11.84%
882/015610-0061
380889.09 a12/17/03 -5-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Preliminary Proforma
Costs
Number of Units
Land
Site Improvements
Architectural, Structural, T24
Civil/ Soil Engineering
House Construction
Landscape Front & Common
Pools & BBQ Area
Developer/ Builder, Overhead
Site Supervision
Permits & Fees
Fin. Costs (Pts, Int., misc.)
Legal, Insurance, HOA
Contingency & Marketing
Total Hard Costs
Maximum City Assist
In 000's
1,562
195
380
155
600
151
MY1]
446
4,239
Price Per
Unit
67
0.0
23.3
0.0
2.9
5.7
2.3
9.0
2.3
0.0
11.2
0.0
6.7
63.4
882/015610-0061
380889.09 a12/17/03 -6-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development
Perimeter Lots
Square Footage
1430
1672
1778
Total
Costs
In 000's
Price Per
In 000's
Price Per
In 000's
Price Per
In 000's
Price Per
Unit
Unit
Unit
Unit
Number of Units
9
10
6
25
Land
324
36.0
360
36.0
216
36.0
900
36.0
Site Improvements
210
23.3
233
23.3
140
23.3
583
23.3
Architectural, Structural,T24
18
2.0
20
2.0
12
2.0
50
2.0
Civil/ Soil Engineering
26
2.9
29
2.9
18
3.0
73
2.9
House Construction
708
78.7
886
88.6
555
92.5
2,149
86.0
Landscape Front &
51
5.7
57
5.7
34
5.7
142
5.7
Common
Pools & BBQ Area
21
2.3
23
2.3
14
2.3
58
2.3
Developer/ Builder,
81
9.0
90
9.0
54
9.0
224
9.0
Overhead
Site Supervision
20
2.2
22
2.2
13
2.2
56
2.2
Permits & Fees
125
13.9
152
15.2
95
15.8
371
14.9
Fin. Costs (Pts, Int., misc.)
101
11.2
112
11.2
67
11.2
280
11.2
Legal, Insurance, HOA,
38
4.2
42
4.2
25
4.2
106
4.2
Taxes
Contingency & Marketing
60
6.7
66
6.6
40
6.7
166
6.6
Total Hard Costs
1,783
198.1
2,092
209.2
1,283
213.9
5,158
206.3
Soft Costs -Comm. & Closing
63
7.0
74
7.4
45
7.5
182
7.3
Total Costs
1,846
205.1
2,166
216.6
1,328
221.4
5,340
213.6
Sales
Total Estimated Gross Sales
2�,097
233.0
2,460
246.0
1,506
251.0
6�,063
242.5
Estimated Project Profit
251
11.98%294
11.95%
178
11.84%
723
11.92%
882/015610-0061
380889.09 a12/17/03 -7-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Home Purchase - Price per
163.00
147.00
141.00
Sq ft
Purchase Price
233
246
251
Down Payment & Closing -
12
12
13
5%
1 st Trust Deed
181
194
198
Silent 2nd Trust Deed
40
40
40
Monthly Mortgage
Payment
30 year fixed 5.50% - P &
1,028.00
1,102.00
1,125.00
1
Property Taxes -1.125 of
218.00
231.00
235.00
Value
Estimated HOA
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
$1,646.0
$1,733.0
$1,760.0
0
0
0
Percentage of 61.200
32.27%
33.98%
34.51 %
annual income
Purchase Price
233
246
251
Down Payment & Closing -
12
12
13
5%
1 st Trust Deed
171
184
188
Silent 2nd Trust Deed
50
50
50
Monthly Mortgage
Payment
30 year fixed 5.50% - P &
971.00
1,045.00
1,068.00
1
Property Taxes - 1.125 of
218.00
231.00
235.00
Value
Estimated HOA
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
$1,589.0
$1,676.0
$1,703.0
0
0
0
Percentage of 61,200
31.16%
32.86%
33.39%
annual income
882/015610-0061
380889.09 al2/17/03 -g-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Purchase Price
233
246
251
Down Payment & Closing -
12
12
13
5%
1 st Trust Deed
158
171
175
Silent 2nd Trust Deed
63
63
63
Monthly Mortgage
Payment
30 year fixed 5.50% - P &
1
897.00
971.00
994.00
Property Taxes - 1.125 of
218.00
231.00
235.00
Value
Estimated HOA
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
$1,515.0
$1,602.0
$1,629.0
0
0
0
Percentage of 61,200
29.71 %
31.41 %
31.94%
annual income
882/015610-0061
380889.09 a12/17/03 '9'
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Purchase Price
233
246
251
Down Payment & Closing -
12
12
13
5%
1 st Trust Deed
141
154
158
Silent 2nd Trust Deed
80
80
80
Monthly Mortgage
Payment
30 year fixed 5.50% - P &
1
801.00
875.00
897.00
Property Taxes - 1.125 of
218.00
231.00
235.00
Value
Estimated HOA
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
$1,419.0
$1,506.0
$1,532.0
0
0
0
Percentage of 61,200
27.82%
29.53%
30.04%
annual income
Purchase Price
233
246
251
Down Payment & Closing -
12
12
13
5%
1 st Trust Deed
121
134
138
Silent 2nd Trust Deed
100
100
100
Monthly Mortgage
Payment
30 year fixed 5.50% - P &
1
687.00
761.00
784.00
Property Taxes -1.125 of
218.00
231.00
235.00
Value
Estimated HOA
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
$1,305.0
$1,392.0
$1,419.0
0
0
0
Percentage of 61,200
25.59%
27.29%
27.82%
annual income
882/015610-0061
380889.09 a12/17/03 —1 �—
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Courtyard Cluster
Square Footage 1270 1295 1400 1520 Total
Costs
In 000's
Price
In 000's
Price
In 000's
Price
In 000's
Price
In
Price
Per
Per
Per
Per
000's
Per
Unit
Unit
Unit
Unit
Unit
Number of Units
7
5
11
6
29
Land
241
34.4
172
34.4
379
34.5
207
34.5
1,000
34.5
Site Improvements
163
23.3
117
23.4
256
23.3
140
23.3
676
23.3
Architectural,
12
1.7
9
1.8
19
1.7
10
1.7
50
1.7
Structural,T24
Civil/ Soil Engineering
20
2.9
14
2.8
32
2.9
17
2.8
84
2.9
House Construction
471
67.3
343
68.6
785
71.4
456
76.0
2,055
70.9
Landscape Front &
40
5.7
28
5.6
62
5.6
34
5.7
164
5.7
Common
Pools & BBQ Area
16
2.3
12
2.4
25
2.3
14
2.3
67
2.3
Developer/ Builder,
63
9.0
45
9.0
99
9.0
54
9.0
260
9.0
Overhead
Site Supervision
16
2.3
11
2.2
25
2.3
13
2.2
65
2.2
Permits & Fees
91
13.0
66
13.1
151
13.7
86
14.4
393
13.6
Fin. Costs (Pts, Int., misc.)
78
11.1
56
11.2
123
11.2
67
11.2
325
11.2
Legal, Insurance, HOA,
30
4.3
21
4.2
47
4.3
25
4.2
123
4.2
Taxes
Contingency & Marketing
47
6.7
33
6.6
73
6.6
40
6.7
193
6.7
Total Hard Costs
1,288
184.0
927
185.3
2,076
188.8
1,163
194.0
5,455
188.1
Soft Costs -Comm. &
45
6.4
33
6.6
73
6.6
41
6.8
192
6.6
Closing
Total Costs 1,333 190.4 960 191.9 2,149 195.4 1,204 200.8 5,647 194.7
882/015610-0061 -11-
380889.09 a12/17/03
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Sales
Total Estimated Gross
1,512 216.0
1,090 218.0
2,431 221.0
1,368 228.0 6,401 220.7
Sales
Estimated Project Profit
179 11.85%
130 11.96%
282 11.61 %
164 11.98% 754 11.77%
Home Purchase - Price
170.00
168.00
158.00
150.00
per Sq ft
Purchase Price
216
218
221
228
Down Payment & Closing
11
11
11
11
- 5%
1 st Trust Deed
165
167
170
177
Silent 2nd Trust Deed
40
40
40
40
Monthly Mortgage
Payment
30 year fixed 5.50% - P
937.00
949.00
966.00
1,005.00
&I
Property Taxes - 1.125
203.00
204.00
208.00
214.00
of Value
Estimated HOA
150.00
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
250.00
$1,540.0
$1,553.0
$1,574.0
$1,619.0
0
0
0
0
Percentage of 61,200
30.20%
30.45%
30.86%
31.75%
annual income
Purchase Price
216
218
221
228
Down Payment & Closing
11
11
11
11
- 5%
1 st Trust Deed
155
157
160
167
Silent 2nd Trust Deed
50
50
50
50
Monthly Mortgage
Payment
30 year fixed 5.50% - P
880.00
892.00
909.00
949.00
&I
Property Taxes -1.125
203.00
204.00
208.00
214.00
of Value
Estimated HOA
150.00
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
250.00
$1,483.0
$1,496.0
$1,517.0
$1,563.0
0
0
0
0
Percentage of 61,200
29.08%
29.33%
29.75%
30.65%
annual income
882/015610-0061
380889.09 a12/17/03 -12-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Purchase Price
216
218
221
228
Down Payment & Closing
11
11
11
11
- 5%
1 st Trust Deed
142
144
147
154
Silent 2nd Trust Deed
63
63
63
63
Monthly Mortgage
Payment
30 year fixed 5.50% - P
807.00
818.00
835.00
875.00
&I
Property Taxes - 1.125
203.00
204.00
208.00
214.00
of Value
Estimated HOA
150.00
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
250.00
$1,410.0
$1,422.0
$1,443.0
$1,489.0
0
0
0
0
Percentage of 61,200
27.65%
27.88%
28.29%
29.20%
annual income
882/015610-0061
380889.09 a12/17/03 -13-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Purchase Price
216
218
221
228
Down Payment & Closing
11
11
11
11
- 5%
1 st Trust Deed
125
127
130
137
Silent 2nd Trust Deed
80
80
80
80
Monthly Mortgage
Payment
30 year fixed 5.50% - P
710.00
721.00
738.00
778.00
&I
Property Taxes -1.125
203.00
204.00
208.00
214.00
of Value
Estimated HOA
150.00
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
250.00
$1,313.0
$1,325.0
$1,346.0
$1,392.0
0
0
0
0
Percentage of 61,200
25.75%
25.98%
26.39%
27.29%
annual income
Purchase Price
216
218
221
228
Down Payment & Closing
11
11
11
11
- 5%
1 st Trust Deed
105
107
110
117
Silent 2nd Trust Deed
100
1DO
100
100
Monthly Mortgage
Payment
30 year fixed 5.50% - P
596.00
608.00
625.00
665.00
&I
Property Taxes -1.125
203.00
204.00
208.00
214.00
of Value
Estimated HOA
150.00
150.00
150.00
150.00
Estimated Utilities
250.00
250.00
250.00
250.00
$1,199.0
$1,212.0
$1,233.0
$1,279.0
0
0
0
0
Percentage of 61,200
23.51 %
23.76%
24.18%
25.08%
annual income
882/015610-0061
380889.09 a12/17/03 -14-
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
Square Footage
Costs
Number of Units
Land
Site Improvements
Architectural, Structural,T24
Civil/ Soil Engineering
House Construction
Landscape Front & Common
Pools & BBQ Area
Developer/ Builder, Overhead
Site Supervision
Permits & Fees
Fin. Costs (Pts, Int., misc.)
Legal, Insurance, HOA, Taxes
Contingency & Marketing
Total Hard Costs
Soft Costs -Comm. & Closing
Courtyard Cluster Villas
2180
2560
In 000's Price Per
In 000's Price Per
Unit
Unit
5
3
250
50.0
150
50.0
117
23.4
70
23.3
19
3.8
12
4.0
15
3.0
9
3.0
828
165.6
576
192.0
28
5.6
17
5.7
12
2.4
7
2.3
45
9.0
27
9.0
11
2.2
7
2.3
90
18.0
60
20.1
56
11.2
34
11.3
21
4.2
13
4.3
33
6.6
20
6.7
1,525
305.0
1,002
334.0
54
10.8
35
11.7
2800
Total
In 000's Price Per In
000's Price Per
Unit
Unit
5
13
250
50.0
650
50.0
117
23.4
303
23.3
19
3.8
50
3.8
15
3.0
38
2.9
1,036
207.2
2,440
187.7
28
5.6
74
5.7
12
2.4
30
2.3
45
9.0
116
8.9
11
2.2
29
2.2
107
21.4
257
19.8
56
11.2
146
11.2
21
4.2
55
4.2
33
6.6
87
6.7
1,750
350.0
4,275
328.9
62
12.4
151
11.6
Total Costs 1,579 315.8 1,037 345.7 1,812 362.4 4,426 340.5
Sales
Total Estimated Gross Sales 1,790 358.0 1,176 392.0 2,055 411.0 5,021 386.2
Estimated Project Profit 211 11.79% 139 11.80% 243 11.82% 595 11.85%
Home Purchase - Price per Sq ft 164.00 153.00 147.00
Purchase Price
Down Payment & Closing - 5%
1 st Trust Deed
Silent 2nd Trust Deed
Monthly Mortgage Payment
30 year fixed 5.50% - P & I
Property Taxes -1.125 of Value
Estimated HOA
Estimated Utilities
358
392
411
18
20
21
340
372
390
0
0
0
1,931.00
2,113.00
2,215.00
336.00
368.00
385.00
150.00
150.00
150.00
250.00
250.00
250.00
$2,667.00
$2,8�81.00
$3,000.00
882/015610-0061 -15-
380889.09 al2/17/03
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 5 Residential Development and Parcel 7 Residential Development (Cont.)
PROGRAM HOMES
Perimeter Lots Courtyard Cluster Total
Square Footage 1430 1672 1778 1270 1295 1400 1520
Program Units 7 7 4 5 4 7 6 40
Bedrooms per Unit 3 3 3 3 3 3 4
Costs
Number of Units
Land
252
252
144
172
138
242
207
1407
Site Improvements
163
163
93
117
94
163
140
933
Architectural, Structural,T24
14
14
8
9
7
12
10
74
Civil/ Soil Engineering
20
20
12
15
11
20
17
115
House Construction
551
620
370
337
274
500
456
3108
Landscape Front & Common
40
40
23
29
22
39
34
227
Pools & BBQ Area
16
16
9
12
10
16
14
93
Developer/ Builder, Overhead
63
63
36
45
36
63
54
360
Site Supervision
15
15
9
12
9
16
13
89
Permits & Fees
97
106
63
65
52
96
86
565
Fin. Costs (Pts, Int., misc.)
78
78
45
56
45
78
67
447
Legal, Insurance, HOA, Taxes
29
29
17
22
17
30
25
169
Contingency & Marketing
47
46
27
34
26
46
40
266
Total Hard Costs
1385
1462
856
925
741
1321
1163
7�853
88M15610-0061
380889.09 a12/17/03 —16—
PRELIMINARY DEVELOPMENT BUDGET FOR
Medical Office/Surgical Facility
Medical Building #1 40,000
$
86.13
$
3,445,200
Medical Building #2 40,000
$
86.13
$
3,445,200
Medical Building #3 40,000
$
86.13
$ 3,445,200
Shell Costs
$ 10,335,600
Basic Interior Allowance 120,000
$
20.89
$ 2,507,200
Sub -Total Direct Costs 120,000
$
107.02
$ 12,842,800
Site Improvements
Grading, Paving, Curbs
$
934,960
Landscaping
$
360,000
Off -Site Development Costs
$
3,004,677
Other Site Improvements
$ 320,000
Sub -Total Site Improvements
$ 4,619,637
TOTAL DIRECT AND SITE IMPROVEMENTS
$ 17,462,437
INDIRECT COSTS
Pre -Development
1%
$ 224,500
Arch, Engineering & Consultants
8%
$ 1,217,466
General Requirements
12%
$ 2,095,492
Permit and Fees (Shell Building Only)
9%
$ 1,658,292
Development Fees/Leasing Fees
9%
$ 1,500,000
Furnishings
NIC
Contingency
8%
$ 1,396,995
$ 6,650,780
TOTAL DIRECT AND INDIRECT COSTS $
200.94
$ 24,113,216
LAND VALUE 9.22ACRES $ 5.00
$ 2,008,116
ESTIMATED COST VALUE
$ 26,121,332
(SAY)
882/015610-0061 .17-
380889.09 al2/17/03
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 1 Restaurant
Fine Dinning Restaurant -
Shell Costs 6,000 $ 100.00
Basic Interior Allowance 6,000 $ 110.00
Sub -Total Direct Costs 6,000 $ 210.00
Site Improvements
Grading, Paving, Curbs $ 200,000
Landscaping $ 75,000
Other Site Improvements $ 90.000
Sub -Total Site Improvements
TOTAL DIRECT AND SITE IMPROVEMENTS
INDIRECT COSTS
Pre -Development
Arch, Engineering & Consultants
General Requirements
Permit and Fees (Shell Building Only)
Development Fees/Leasing Fees
Furnishings
Financing Costs
Lender Fees- Const. & Take out
Brokerage Fees
Construction Interest Rate Years
Terms 60%7.00% 1
Contingency
8.00% $
8.00% $
12.00% $
5.00% $
5.00% $
NIC
1.50% $
2.50% $
130,000
130,000
195,000
81,250
81,250
30,000
50,000
$ 84,000
5.00% $ 81.250
TOTAL DIRECT AND INDIRECT COSTS $ 414.63
LAND VALUE 0.92ACRES $ 5.00
ESTIMATED COST VALUE
(SAY)
$ 600,000
$ 660,000
$ 1,260,000
$ 365,000
$ 1,625,000
$ 862,750
$ 2,487,750
$ 200,376
$ 2,688,126
�' 3 ,ill T1��11.
882/015610-0061 —1 g-
380889.09 a12/17/03
PRELIMINARY DEVELOPMENT BUDGET FOR
Parcel 13 Restaurant
FAMILY STYLE RESTAURANT
Shell Costs
Basic Interior Allowance
Sub -Total Direct Costs
Site Improvements
Grading, Paving, Curbs
Landscaping
Other Site Improvements
Sub -Total Site Improvements
TOTAL DIRECT AND SITE IMPROVEMENTS
INDIRECT COSTS
7,000
$
100.00
$ 700,000
7,000
$
90.00
$ 630,000
7,000
$
190.00
$ 1,330,000
$ 250,000
$ 75,000
$ 90,000
$ 415,000
$ 1,745,000
Pre -Development
8.00% $
139,600
Arch, Engineering & Consultants
8.00% $
139,600
General Requirements
12.00% $
209,400
Permit and Fees (Shell Building Only)
5.00% $
87,250
Development Fees/Leasing Fees
5.00% $
87,250
Furnishings
NIC
Financing Costs
Lender Fees- Const. & Take out
1.50% $
30,000
Brokerage Fees
2.50% $
50,000
Construction Interest Rate Years
Terms 60% 7.00% 1
$
84,000
Contingency
5.00% $ 87,250
$ 914,350
TOTAL DIRECT AND INDIRECT COSTS $
379.91
$ 2,659,350
LAND VALUE 1.12ACRES $ 5.00
$ 243,936
ESTIMATED COST VALUE
$ 2,903,286
(SAY)
882/015610-0061 -19-
380889.09 a12/17/03
ATTACHMENT NO. 18
FORM OF BUYER AFFORDABLE HOUSING DOCUMENTS
[See Following Pages]
l . Buyer Affordable Housing Agreement (Document No. 398366)
2. Buyer Memorandum Re Option to Purchase (Document No. 398363)
3. Buyer Promissory Note Secured by Deed of Trust (Document No. 398344)
4. Buyer Deed of Trust with Assignment of Rents and Rider to Deed of Trust
attached hereto (Document No. 398353)
5. Buyer Borrower Disclosure Statement (Document No. 398359)
882/015610-0061
380889.09 a12/17/03
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
Exempt From Recording Fee Pursuant to Government Code § 6103
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is made this
day of by and between
("Participant") and the LA QUINTA REDEVELOPMENT AGENCY ("Agency").
RECITALS
A. Participant has entered into an agreement (the "Purchase Agreement") to purchase
a single family home located at , in the City of La Quinta
("City"), California (the "Property"). The Property is more particularly described in Exhibit "A"
attached hereto and incorporated herein by this reference.
B. Participant requires financial assistance from the Agency to purchase the Property
and would not be able to purchase the Property without such assistance. Participant is a "person
or family of moderate income" who currently earns less than 120% of the current annual "area
median income" for the Riverside County area, adjusted for family size appropriate for the unit,
as those terms are defined by California Health and Safety Code Section 50093.
C. Participant has represented to Agency that Participant shall reside in the Property
as Participant's principal residence at all times throughout the term of this Agreement.
D. Agency desires to assist "persons and families of moderate income" ("Eligible
Buyers"), to purchase residential property and to increase, improve and preserve moderate -
income housing available at "affordable housing cost" (as defined in Health and Safety Code
Section 50052.5) within the territorial jurisdiction of Agency in accordance with the Community
Redevelopment Law, Health and Safety Code Section 33000, et seq.
E. Participant acknowledges that Agency and CP Development La Quinta, LLC, a
California limited liability company ("Developer"), the developer, of the Property, previously
entered into a Disposition and Development Agreement, dated (the "DDA"),
and that the Property is subject to affordability restrictions stemming from (i) the DDA, which
require purchasers of the Property to execute this Agreement in favor of Agency, and (ii) that
certain Declaration of Covenants, Conditions, and Restrictions for Property, entered into by and
between the Agency and Developer and recorded on , as Instrument No.
in the Official Records of Riverside County (the "Declaration").
882/015610-0061
398366.03 a12/15/03
F. Agency desires to lend to Participant, and Participant desires to borrow from
Agency, funds in the form of a second trust deed mortgage assistance loan secured by a second
lien deed of trust to assist Participant to purchase the Property subject to the terms and conditions
set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration the parties agree as follows:
1. Duration of Covenants. The covenants set forth in this Agreement shall remain
in effect from the date this Agreement is recorded and continue thereafter for forty-five (45)
years following the date of recordation ("Covenant Period").
2. Agency Loan. Agency shall loan to Participant (the "Agency Loan") the amount
of Dollars ($____) subject to the conditions and restrictions set forth herein.
Participant shall execute, as maker, and deliver to Agency a promissory note in favor of Agency,
as holder, in the principal amount of the Agency Loan (the "Note Amount"), substantially in the
form delivered to Participant prior to receiving the Agency Loan (the "Note" or "Promissory
Note"). Interest on the Note Amount shall accumulate at the rate of seven percent (7%) per
annum, compounded annually. At the expiration of the Covenant Period, the Note shall be
cancelled and the Note Amount, together with interest thereon, shall be forgiven, unless prior to
that time an "Event of Acceleration" (as that term is defined in Section 4 hereof) has occurred.
Participant shall also execute and deliver to Agency a second deed of trust which shall secure the
Note, in the form delivered to Participant prior to receiving the Agency Loan (the "Agency Deed
of Trust"). As a further condition of the Agency making the Agency Loan to Participant,
Participant shall execute and deliver to Agency (i) a memorandum re option to purchase
("Memorandum Re Option to Purchase"), and (ii) a Borrower Disclosure Statement and Notice
of Rescission (collectively "Disclosure Statement"), both of which shall be in the form delivered
to Participant prior to receiving the Agency Loan.
3. Property Transfer Restrictions.
a. Participant shall not "Transfer" (as defined below) or permit the Transfer
of the Property unless the Transfer is a "Permitted Transfer" (as defined below). A
"Transfer" is (i) any sale, assignment, or transfer of an interest in the Property, including,
without limitation, a fee simple interest, tenancy in common, joint tenancy, community
property, tenancy by the entireties, life estate, or other limited estate, leasehold interest or
any rental of the Property, (ii) any interest evidenced by a land contract, (iii) the
refinancing of the lien of the Agency Deed of Trust, or (iv) the refinancing of any lien to
which the lien of the Agency Deed of Trust is subordinated (the "First Lien") other than a
"Permitted First Lien Refinance" (as defined in Section 7 hereof).
b. Transfers shall be designated as voluntary or involuntary. Involuntary
Transfers are Transfers that occur by operation of law, in the absence of an express
conveyance by Participant, and include, but are not limited to, Transfers by devise,
inheritance, incompetency, marriage, and divorce (collectively, "Involuntary Transfers").
Voluntary Transfers occur by affirmative act of Participant, and include Transfers by gift,
882/015610-0061
398366.03 a12/15/03 -2-
sale and lease, any refinance that constitutes a Transfer, and any other Transfer that does
not constitute an Involuntary Transfer.
C. The following Transfers shall constitute "Permitted Transfers": (i)
Voluntary Transfers to a spouse or to an Eligible Buyer; and (ii) Involuntary Transfers.
A Transfer that does not constitute a Permitted Transfer (a "Prohibited Transfer") is
expressly prohibited by this Agreement and shall be null and void and shall constitute a
default of Participant under this Agreement, entitling Agency to exercise its right to
purchase the Property from the new owner, as described in Section 6 herein, as well as all
remedies available at law or equity, including without limitation the enforcement of the
liquidated damages provision in Section 18 of this Agreement.
4. Events of Acceleration. The Agency Loan shall become due and immediately
payable irrespective of any provisions herein to the contrary upon the occurrence of any one of
the following events of acceleration ("Event of Acceleration"): (i) Transfer of the Property (as
defined in Section 3 above), except a Transfer which under applicable law, would not, by itself,
permit Agency to exercise a due on sale or due on encumbrance clause, or (ii) such time if or
when Participant (or upon Participant's Transfer of the Property pursuant to a Permitted
Transfer, Participant's transferee) is no longer in compliance with the occupancy requirements
set forth in Section 9 of this Agreement or is in default of any other obligation under this
Agreement, the Note, or the Agency Deed of Trust. Notwithstanding the above, however, the
following Transfers of the Property shall not be an Event of Acceleration:
a. A Transfer to Participant's Spouse;
b. An Involuntary Transfer that satisfies both of the following:
(1) The transferee(s) gives notice to Agency of such event within
thirty (30) days of its occurrence and the transferee(s) assumes the Participant's
obligations under this Agreement, by execution of an assignment and assumption
agreement to be provided by Agency; and
(2) Where the transferee is not an Eligible Buyer, such transferee
Transfers the Property to an Eligible Buyer within one hundred eighty (180) days
after the transferee obtains title to the Property.
Agency's Executive Director may, in his or her sole and absolute
discretion, waive some or all of the requirements of this Section 4.
5. Notice to Agency. Participant (or Participant's heirs following the death of
Participant) agrees to notify Agency in writing not less than thirty (30) days prior to any Transfer
of any interest in the Property.
6. Sale of Property; Agency's Option to Purchase.
a. If Participant desires to sell, quitclaim, exchange, or in any manner
dispose of the Property or any part thereof ("Proposed Sale"), Participant shall first notify
Agency of its intent to transfer the Property, by sending to Agency the notification form
882/015610-0061
398366.03 a12/15/03 '3'
attached hereto and incorporated herein as Exhibit "C", no later than ten (10) days prior
to the date each time the Property is placed on the market for a Proposed Sale.
b. Participant shall not sell or transfer the Property until such time as Agency
has determined (i) the proposed buyer is an Eligible Buyer; (ii) the proposed buyer
intends to occupy the Property as its principal residence; and (iii) the Proposed Sale is at
an "Affordable Housing Cost" (as defined below). If Participant identifies a buyer whom
the Participant believes to be an Eligible Buyer, Participant shall cooperate with and
reasonably assist Agency with the determination of whether the proposed buyer is an
Eligible Buyer. Within ten (10) days after Participant locates the proposed buyer,
Participant shall submit to Agency (1) information evidencing the proposed buyer's
identity and income in order that Agency may make a preliminary determination
regarding the buyer's household income status ("Preliminary Determination"); and (2)
the price at which Participant proposes to sell the Property (less the value of any personal
property or equipment included in said price). In the event Agency makes a Preliminary
Determination that the buyer qualifies as an Eligible Buyer, Participant may proceed with
opening an escrow for a Proposed Sale; provided, however, that not less than twenty (20)
days prior to the date escrow is scheduled to close for the Proposed Sale, Participant shall
submit to Agency adequate information to enable the Agency to make a final
determination regarding whether the buyer qualifies as an Eligible Buyer and whether the
Property is available to such buyer at an Affordable Housing Cost ("Final
Determination"). Such information shall include (a) a completed request for approval of
buyer form in the form attached hereto and incorporated herein as Exhibit "D"; (b) the
purchase and sale agreement pursuant to which Participant proposes to sell the Property
to the proposed buyer; and (c) information evidencing the income of the proposed buyer
including, but not limited to, original or true copies of pay stubs, income tax records or
other financial documents. Agency may request additional information reasonably
required to make a Final Determination regarding the proposed buyer's status. If Agency
is unable to make a Final Determination regarding the proposed buyer's income as
provided herein prior to the date set for the Proposed Sale, then the proposed buyer's
income shall be deemed to exceed the maximum allowable income limit for Eligible
Buyer status and Participant may not conclude the Proposed Sale.
As used herein, the term "Affordable Housing Cost" shall be that purchase price
which would result in an annual "Purchase Housing Cost" (as defined below) which does
not exceed one of the following calculations, as applicable:
(1) For moderate income purchasers earning not more than one
hundred ten percent (110%) of Riverside County median income adjusted for
family size appropriate to the unit, Affordable Housing Cost shall be not less than
twenty-eight percent (28%) of the gross income of the household nor exceed the
product of thirty-five percent (35%) times one hundred ten percent (110%) of
Riverside County median income adjusted for family size appropriate to the unit;
or
(2) For moderate income purchasers earning more than one hundred
ten percent (110%) but less than one hundred twenty percent (120%) of the
882/015610-0061
398366.03 a12/15/03 -4-
Riverside County median income, Affordable Housing Cost shall be the product
of thirty-five percent (35%) of the actual gross income of the household.
"Purchase Housing Cost" shall be a cost that includes all of the following
associated with the Property, estimated or known as of the date of the Proposed Sale of
the Property:
(1) Principal and interest payments on a mortgage loan including any
rehabilitation loans and any loan insurance fees associated therewith.
(2) Property taxes and assessments.
(3) Fire and casualty insurance covering replacement value of property
improvements.
(4) Any homeowner association fees.
(5) A reasonable utility allowance.
(6) A reasonable property maintenance allowance.
For purposes of this Agreement, the term "adjusted for family size appropriate to
the unit" shall mean a household of one person in the case of a studio unit, two persons in
the case of a one -bedroom unit, three persons in the case of a two -bedroom unit, four
persons in the case of a three -bedroom unit, and five persons in the case of a four -
bedroom unit.
Participant shall contact the Agency to determine the applicable Affordable
Housing Cost for a particular proposed Eligible Buyer. A sample calculation of an
Affordable Housing Cost is attached hereto and incorporated herein as Exhibit `B".
C. Upon (i) Participant's sale of the Property to a person who is an Eligible
Buyer (provided that person's status as an Eligible Buyer has been verified by Agency
pursuant to this Section 6) at an Affordable Housing Cost, and (ii) the Eligible Buyer's
execution of an assignment and assumption agreement in a form satisfactory to Agency's
legal counsel, the Agency Loan shall be assigned to the Eligible Buyer upon the close of
escrow for such sale.
d. At any time prior to the time Participant enters into a binding agreement
with an Eligible Buyer for a Proposed Sale, Agency shall have an option to (i) purchase
the Property from Participant at the Affordable Housing Cost set forth in paragraph b(1)
above, or (ii) to cause the purchase of all the Property by an Eligible Buyer at an
Affordable Housing Cost. Agency's exercise of such option to purchase shall be made
by delivery of written notice to Participant. In the event Agency either purchases the
Property or arranges the purchase by an Eligible Buyer, an escrow shall be established to
close within forty-five (45) days after delivery of Agency's notice of exercise, subject to
any extensions, at Agency's option, for causes outside the control of Agency. In the
event Agency exercises its option to purchase the Property pursuant to (i) above, the
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balance of the Agency Loan and any accrued interest thereon shall be due and payable to
Agency prior to or at the close of escrow. In the event Agency arranges the purchase by
an Eligible Buyer pursuant to (ii) above, the Eligible Buyer shall be required to execute
an assignment and assumption agreement in a form satisfactory to Agency's legal
counsel.
e. IN THE EVENT PARTICIPANT SELLS THE PROPERTY TO A
BUYER WHO DOES NOT QUALIFY AS AN ELIGIBLE BUYER, AGENCY
SHALL HAVE AN OPTION TO PURCHASE THE PROPERTY FROM THE
BUYER AT THE AFFORDABLE HOUSING COST SET FORTH IN
PARAGRAPH b(1) ABOVE.
THE FOREGOING CONSTITUTES NOTICE TO ANY BUYER OF THE
PROPERTY WHO HAS PURCHASED THE PROPERTY WITHOUT
OBTAINING THE PRIOR APPROVAL OF AGENCY.
f. Agency's option to purchase set forth in paragraphs d and e of this Section
6 shall terminate and be of no further force or effect on the date the Covenant Period
terminates. Agency's option to purchase set forth in this Section shall be memorialized
by the Memorandum Re Option to Purchase substantially in the form as distributed to
Participant prior to receiving the Agency Loan to be recorded against the Property
concurrently herewith.
PARTICIPANT UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED SALE, AND THAT THE AFFORDABLE HOUSING COST PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE PROPERTY
AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER
SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THE AFFORDABILITY
COVENANTS IN THIS AGREEMENT. PARTICIPANT FURTHER ACKNOWLEDGES
THAT IN SETTING THE AFFORDABLE HOUSING COST, THE PRIMARY OBJECTIVE
OF AGENCY AND THIS AGREEMENT IS TO PROVIDE HOUSING TO ELIGIBLE
BUYERS AT AN AFFORDABLE HOUSING COST.
PARTICIPANT'S INITIALS
7. Refinance of First Lien.
a. Participant shall be permitted to refinance the First Lien for either of the
following amounts (each, a "Permitted Refinance"): (i) not more than the then -current
principal balance of the First Lien, or (ii) for more than the then -current principal loan
balance of the First Lien (i.e., obtain a "cash out" refinance) in accordance with
paragraph b below.
b. In a "cash out" refinance, the new first mortgage loan principal shall not
exceed the lesser of:
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(1) An amount which when combined with the principal of the Agency
Loan (i.e., the total of the principal of the new first mortgage loan plus the
principal of the Agency Loan) does not exceed seventy percent (70%) of the
appraised value of the Property as evidenced by an appraisal (paid for by
Participant) from a qualified appraiser, or based on other evidence acceptable to
Agency's Executive Director or authorized designee in his/her sole and absolute
discretion;
(2) The maximum amount the Participant may borrow as the new first
mortgage loan without the Participant exceeding "Affordable Housing Cost" (as
described in Section 6 hereof); or
(3) An amount equal to the sum of (x) the outstanding principal
balance, at the time of the refinance, of the then -current First Lien that is being
refinanced, plus (y) usual and customary closing costs paid by Participant but
excluding loan origination points or loan origination fees, plus (z) Twenty -Five
Thousand Dollars ($25,000.00).
Notwithstanding the foregoing, the Agency Executive Director shall have the
authority, in his/her sole and absolute discretion, on behalf of the Agency to approve the
following: (i) with respect to subparagraph (1) above, an increase from 70% to up to
80% in the maximum loan -to -value ratio, and (ii) with respect to subparagraph (3) above,
an increase from Twenty -Five Thousand Dollars ($25,000) to up to Fifty Thousand
Dollars ($50,000); provided, however, in both cases, Participant shall have provided
evidence satisfactory to Agency's Executive Director, in his/her sole and absolute
discretion, that the additional amount is needed to remedy a specific and significant
current or identifiable future adverse financial condition of Participant and Agency's
Executive Director determines, in his/her sole and absolute discretion, that such
additional amount shall not jeopardize the continuation of the property as an affordable
housing unit. In the event Agency's Executive Director modifies the amount in either
subparagraphs (1) or (3) above, the new first mortgage loan principal shall not exceed the
lesser of (a) the amount in subparagraph (1) above if and as modified, or (b) the amount
in subparagraph (2) above, or (c) the amount in subparagraph (3) above if and as
modified.
C. Participant may seek subordination of the Agency Deed Of Trust to the
deed of trust of the new first mortgage loan not more than once every three (3) years;
provided, however, this restriction may be waived if Participant provides evidence
satisfactory to Agency's Executive Director, in his/her sole and absolute discretion, that
waiver of this restriction is needed to remedy a specific and significant current or
identifiable future adverse financial condition of Participant and Agency's Executive
Director determines, in his/her sole and absolute discretion, that waiver of this
requirement shall not jeopardize the continuation of the property as an affordable housing
unit.
d. Participant shall notify Agency not less than thirty (30) days prior to the
date proposed for the closing of the refinance loan and shall execute such documents, and
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shall cause the new first mortgage lender to execute such documents, as Agency requires
to effect the Agency's subordination of the Agency Deed of Trust (and related recorded
regulatory agreements if necessary ) to the deed of trust of the new first mortgage lender.
Agency shall only approve a subordination of the Agency Deed of Trust (and related
documents if necessary) to the deed of trust of the new first mortgage lender upon
confirmation of the new first loan amount and review of Participant's loan application
and related material and documents.
8. Maintenance of Property. Participant shall maintain the improvements and
landscaping on the Property in a manner consistent with community standards which will uphold
the value of the Property, in accordance with the La Quinta Municipal Code. Participant also
agrees to comply with the Declaration, and to comply with all applicable federal, state and local
laws.
9. Occupancy Standards.
a. The Property shall be used as the principal residence of Participant and for
no other purpose.
b. Participant shall not enter into an agreement for the rental or lease of the
Property.
C. The maximum occupancy of the Property shall not exceed the maximum
occupancy allowed pursuant to the general requirements of the United States Department
of Housing and Urban Development which as of the date of this Agreement is two
persons per bedroom, plus one person.
d. Participant shall, upon demand by Agency, submit to Agency an affidavit
of occupancy verifying Participant's compliance with this Section 9. Said affidavit may
be required by Agency on an annual basis.
e. Agency may grant a temporary waiver of the above requirements for good
cause, in Agency's sole and absolute discretion.
10. Income and Asset Information. Participant has submitted an application and
additional information verifying income and asset eligibility to Agency prior to execution of this
Agreement. Participant represents, warrants and declares under penalty of perjury to Agency that
all information Participant has provided and will provide in the future to Agency is and will be
true, correct and complete. Participant acknowledges that Agency is relying upon Participant's
representations that Participant is an Eligible Buyer, and Agency would not have entered into
this Agreement if Participant did not so qualify. Asset eligibility shall be determined pursuant to
the Asset Limitation Requirements set forth in the La Quinta Housing Program Implementation
Manual, as it may be amended from time to time.
11. Loan Servicing. Agency may contract with a private lender or other person or
entity (the "Administrator") to originate and service the Agency Loan, and to carry out Agency's
obligations under this Agreement. Any reference to the duties of Agency herein shall also apply
to the Administrator.
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12. Participant Financing. As a condition to Agency's obligation to make the
Agency Loan, Participant shall obtain first trust deed financing for the purchase of the Property
from a reputable institutional lender (the "Lender"). In addition, Participant must make a down
payment of not less than three percent (3 %) of the "Purchase Price" (as defined below). Nothing
in this Agreement shall be construed as a promise or guaranty by Agency that the Participant will
qualify for or receive such first trust deed financing. For purposes of this Section 12, "Purchase
Price" is the original purchase price paid by the Participant to the seller of the Property for the
seller's interest in the Property, together with all escrow fees, recording fees, transfer taxes, title
insurance costs, broker's Agency, loan fees and any other closing or transaction costs paid by
Participant.
13. Title Insurance. As a condition to disbursement of the Agency Loan,
Participant, at no cost to Agency, shall obtain and cause to be delivered to Agency a standard
form ALTA Lender's policy of Title Insurance, issued by a title company as may be mutually
approved by Agency and Participant, in an amount not less than the Agency Loan, insuring the
priority of the Agency Deed of Trust against all monetary liens and encumbrances against the
Property, including but not limited to, mechanic's liens claims and excepting only (i) the lien of
any non -delinquent property taxes; (ii) the Declaration recorded against the Property; (iii) the
First Lien and Subordination Agreement referred to in Section 14; and (iv) other encumbrances
and exceptions to title as may be approved by Agency in Agency's sole and absolute discretion.
14. Covenants Do Not Impair Lien. Agency agrees to subordinate the provisions of
this Agreement, the Declaration, the Memorandum Re Option to Purchase, and the Agency Deed
of Trust to any First Lien on the Property held by the Lender by recording a subordination
agreement, in a form approved by Agency and Agency's legal counsel, which affords the
Agency adequate cure rights, as required by Health and Safety Code Section 33334.14
("Subordination Agreement").
Participant agrees it shall instruct the Escrow Agent for the acquisition of the Property by
the Participant that the order of recording in the escrow for the purchase of the Property by the
Participant shall occur as follows: 1) this Agreement; 2) the Memorandum Re Option to
Purchase; 3) the Agency Deed of Trust; (4) the First Lien; and (5) the Subordination Agreement.
Participant shall cause a Request for Notice to be recorded on the Property subsequent to
the recordation of the First Lien deed of trust or mortgage requesting a statutory notice of default
as set forth in the California Civil Code Section 29246. Such notice shall be sent to: La Quinta
Redevelopment Agency, 78-495 Calle Tampico, La Quinta, California 92253, Attention:
Executive Director.
15. Indemnification. Participant shall defend, indemnify and hold harmless Agency
and the City of La Quinta and their respective officers, officials, agents, members, employees,
representatives, and volunteers from and against any loss, liability, claim, or judgment relating in
any manner to the Property or this Agreement. The Participant shall remain fully obligated for
the payment of taxes, liens and assessments related to the Property. There shall be no reduction
in taxes for Participant, nor any transfer of responsibility to Agency to make such payments, by
virtue of the Agency Loan.
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16. Insurance. Participant shall maintain, during the term of the Agency Loan, an
all-risk property insurance policy insuring the Property in an amount equal to the full
replacement value of the structures on the property. The policy shall name Agency as loss payee
and shall contain a statement of obligation on behalf of the carrier to notify Agency of any
material change, cancellation or termination of coverage at least thirty (30) days in advance of
the effective date of such material change, cancellation or termination. Participant shall transmit
a copy of the certificate of insurance and loss payee endorsement to Agency within thirty (30)
days of the effective date of this Agreement, and Participant shall annually transmit to Agency a
copy of the certificate of insurance and a loss payee endorsement, signed by an authorized agent
of the insurance carrier setting forth the general provisions of coverage. The copy of the
certificate of insurance and loss payee endorsement shall be transmitted to Agency as follows:
La Quinta Redevelopment Agency
78495 Calle Tampico
La Quinta, CA 92253
Attention: Executive Director
Any certificate of insurance must be in a form, content and with companies
approved by Agency.
17. Defaults. Failure or delay by either party to perform any term or provision of this
Agreement which is not cured within thirty (30) days after receipt of notice from the other party
constitutes a default under this Agreement; provided, however, if such default is of the nature
requiring more than thirty (30) days to cure, the defaulting party shall avoid default hereunder by
commencing to cure within such thirty (30) day period, and thereafter diligently pursuing such
cure to completion. The party who so fails or delays must immediately commence to cure,
correct or remedy such failure or delay, and shall complete such cure, correction or remedy with
diligence.
The injured party shall give written notice of default to the party in default, specifying the
default complained of by the injured party. Except as required to protect against further damages,
the injured party may not institute proceedings against the party in default until thirty (30) days
after giving such notice. Failure or delay in giving such notice shall not constitute a waiver of
any default, nor shall it change the time of default.
18. Liquidated Damages for Prohibited Transfer. In the event Agency seeks
monetary damages for a Prohibited Transfer, Participant shall be required, to the extent permitted
by law, to pay to Agency the entire amount of the "Sale Price" (as defined below) received in
excess of the Affordable Housing Cost permitted pursuant to this Agreement; provided, however,
that nothing herein shall be deemed to limit Agency's remedy for a Prohibited Transfer to
seeking monetary damages, and Agency shall be entitled to pursue any other equitable remedy
permitted by law, including specific performance or injunctive relief, to prevent a Prohibited
Transfer. For purposes of this Section 18, the "Sale Price" is the price to be paid by the buyer of
the Property to Participant for Participant's interest in the Property, after deduction of escrow
fees, recording fees, transfer taxes, title insurance costs, broker's commissions, loan fees or any
other closing or transaction costs paid by Participant.
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THE PARTIES HERETO AGREE THAT THE AMOUNT SET FORTH IN THIS
SECTION 18 (THE "DAMAGE AMOUNT") CONSTITUTES A REASONABLE
APPROXIMATION OF THE ACTUAL DAMAGES THAT AGENCY WOULD SUFFER
DUE TO THE DEFAULTS BY PARTICIPANT SET FORTH IN THIS SECTION 18,
CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE
OF THIS AGREEMENT, INCLUDING THE RELATIONSHIP OF THE DAMAGE
AMOUNTS TO THE RANGE OF HARM TO AGENCY AND ACCOMPLISHMENT OF
AGENCY'S PURPOSE OF ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING
TO ELIGIBLE BUYERS THAT REASONABLY COULD BE ANTICIPATED AND THE
ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR
INCONVENIENT. THE DAMAGE AMOUNT SET FORTH IN THIS SECTION 18 SHALL
BE THE SOLE DAMAGES REMEDIES FOR THE DEFAULTS SET FORTH IN THIS
SECTION 18, BUT NOTHING IN THIS SECTION 18 SHALL BE INTERPRETED TO LIMIT
AGENCY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES REMEDY. IN
PLACING ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW, EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL OR
HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL TO EXPLAIN THE
CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE
TIME EACH EXECUTED THIS AGREEMENT.
PARTICIPANT'S INITIALS: AGENCY'S INITIALS:
Notwithstanding any of the above, nothing herein is intended to preclude the Agency's
recovery of its attorney's fees and costs incurred to enforce this Section, as provided in Section
33.
19. Distribution of Insurance and Condemnation Proceeds. In the event the
improvements on the Property are destroyed and insurance proceeds are distributed to Participant
instead of being used to rebuild, or in the event of condemnation, if proceeds thereof are
distributed to Participant, any surplus of proceeds so distributed remaining after payment of
encumbrances of said Property, with the first claim accruing to the Lender, shall be distributed as
follows: that portion of the surplus that is in excess of the Affordable Housing Cost permitted
pursuant to this Agreement shall be distributed to Agency, and the balance of such surplus, if
any, shall be distributed to Participant.
20. Covenant to Keep Property Drug Free. Participant represents to Agency that
Participant shall maintain a drug free environment on the Property. Participant covenants to
Agency that Participant and all persons residing on the Property shall not unlawfully
manufacture, distribute, dispense, possess or use controlled substances, as said term is defined in
21 United States Code Section 812 and California Health and Safety Code Section 11007,
including marijuana, heroin, cocaine, and amphetamines on the Property. If Participant or any
person residing on the Property is convicted, pleads guilty or nolo contendere to a charge of
unlawfully manufacturing, distributing, dispensing, possessing or using controlled substances on
the Property, then such event shall be a default of this Agreement, which shall entitle Agency to
exercise its option to purchase the Property at an Affordable Housing Cost as set forth in Section
6 of this Agreement within sixty (60) days after Agency's notice of said default.
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21. Rights and Remedies are Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other parry.
22. Covenants to Run with the Land. All conditions, covenants, and restrictions
contained in this Agreement shall be covenants running with the land, and shall, in any event,
and without regard to technical classification or designation, legal or otherwise, be, to the fullest
extent permitted by law and equity, binding for the benefit and in favor of, and enforceable by,
Agency and its successors and assigns, against Participant, its successors and assigns, to or of the
Property or any portion thereof or any interest therein, and any party in possession or occupancy
of said Property or portion thereof.
In amplification and not in restriction of the provisions set forth hereinabove, it is
intended and agreed that Agency shall be deemed a beneficiary of the agreements and covenants
provided hereinabove both for and in its own right and also for the purposes of protecting the
interests of the community. All covenants without regard to technical classification or
designation shall be binding for the benefit of Agency and such covenants shall run in favor of
Agency for the entire period during which such covenants shall be in force and effect, without
regard to whether Agency is or remains an owner of any land or interest therein to which such
covenants relate. Agency shall have the right, in the event of any breach of any such agreement
or covenant, to exercise all the rights and remedies, and to maintain any action at law or suit in
equity or other proper proceedings to enforce the curing of such breach of agreement or
covenant.
23. Non -Waiver. Failure to exercise any right Agency may have or be entitled to, in
the event of default hereunder, shall not constitute a waiver of such right or any other right in the
event of a subsequent default.
24. Documents. Participant is aware that Agency has prepared certain documents to
implement, and secure repayment of, the Agency Loan. Participant has reviewed and agrees to
execute the following documents in substantially the form as distributed to Participant prior to
receiving the Agency Loan, and any other documents reasonably required by Agency or a
participating entity to complete the transaction contemplated herein:
b. Promissory Note;
C. Agency Deed of Trust;
d. Disclosure Statement and Notice of Rescission;
e. Memorandum Re Option to Purchase; and
f. Subordination Agreement.
Participant agrees and acknowledges that this Agreement, the Agency Deed of Trust, the
Memorandum Re Option to Purchase, and the Subordination Agreement shall be recorded
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against the Property with the County Recorder of the County of Riverside and shall appear of
record with respect to and as encumbrances to the Property.
25. Compliance with La Quinta Housing Program Implementation Manual. In
addition to the terms and conditions set forth herein and in the documents listed in Section 24
above, Participant acknowledges that its occupancy and any attempted Transfer of the Property
shall be in accordance with the La Quinta Housing Program Implementation Manual.
26. Further Assurances. The Participant shall execute any further documents
consistent with the terms of this Agreement, including documents in recordable form, as Agency
shall from time to time find necessary or appropriate to effectuate its purposes in entering into
this Agreement and making the Agency Loan.
27. Governing Law. The Participant hereby agrees to comply with all ordinances,
rules and regulations of Agency and the City of La Quinta (the "City"). Nothing in this
Agreement is intended to be, nor shall it be deemed to be, a waiver of any City ordinance, rule or
regulation. This Agreement shall be governed by the laws of the State of California. Any legal
action brought under this Agreement must be instituted in the Superior Court of the County of
Riverside, State of California, in an appropriate municipal court in that county or in the Federal
District Court in the District of California in which Riverside County is located.
28. Amendment to Agreement. No modification, rescission, waiver, release or
amendment of any provision of this Agreement shall be made except by a written agreement
executed by the Participant and Agency.
29. Agency May Assign. Agency may, at its option, assign its right to receive
repayment of the Agency Loan proceeds without obtaining the consent of the Participant.
30. Participant Assignment Prohibited. In no event shall Participant assign or
transfer any portion of this Agreement or any of the other agreements referred to herein without
the prior express written consent of Agency, which consent shall be given by Agency only in the
event that Agency determines that the assignee or transferee is an Eligible Buyer, that the
assignee's or transferee's monthly housing payments are at an Affordable Housing Cost, and that
the assignee or transferee has expressly assumed this Agreement by execution of a written
assignment document to be provided by Agency.
31. Relationship of Participant and Agency. The relationship of Participant and
Agency pursuant to this Agreement is that of debtor and creditor and shall not be or be construed
to be a joint venture, equity venture, partnership, or other relationship.
32. Notices. Any notices, requests or approvals given under this Agreement from one
parry to another may be personally delivered or deposited with the United States Postal Service
for mailing, postage prepaid, registered or certified mail, return receipt requested to the following
address:
To Participant:
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To Agency: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attention: Executive Director
Either party may change its address for notice by giving written notice thereof to the
other party.
33. Attorneys' Fees and Costs. In the event that any action is instituted to enforce
payment or performance under this Agreement, the parties agree the non -prevailing party shall
be responsible for and shall pay all costs, including expert witness fees, and all attorneys' fees
incurred by such prevailing party in enforcing this Agreement.
34. Nondiscrimination. Participant covenants by and for itself, its successors and
assigns, and all persons claiming under or through them that there shall be no discrimination
against or segregation of, any person or group of persons on account of race, color, religion, sex,
marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the Property, nor shall Participant itself or any person claiming under or
through it, establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees in the Property.
Participant, its successors and assigns, shall refrain from restricting the rental, sale or
lease of the Property on the basis of race, color, religion, sex, marital status, national origin or
ancestry of any person. All such deeds, leases or contracts shall contain or be subject to
substantially the following nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any person
or group of persons on account of race, color, religion, sex, marital status, national origin
or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the grantee himself or herself or any person claiming
under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessee or vendees in the land herein
conveyed. The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or
through him or her, and this lease is made and accepted upon and subject to the following
conditions:
There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, religion, sex, marital status, ancestry or national origin
in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the
premises herein leased nor shall the lessee himself or herself, or any person claiming
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under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, sublessees, subtenants or vendees in the premises herein
leased."
C. In contracts: "There shall be no discrimination against or segregation of,
any person or group of persons on account of race, color, religion, sex, marital status,
ancestry or national origin, in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the premises, nor shall the transferee himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessee or vendees of the premises."
Notwithstanding the foregoing, the Participant acknowledges and agrees that during the
Covenant Period, the Promissory Note and Agency Deed of Trust executed pursuant thereto,
Participant shall occupy the Property as Participant's principal residence and shall not rent or
lease the Property.
35. Entire Agreement. This Agreement, together with all attachments hereto,
constitutes the entire understanding and agreement of the parties. This Agreement integrates all
of the terms and conditions mentioned herein or incidental thereto, and supersedes all prior
negotiations, discussions and previous agreements between Agency and the Participant
concerning all or any part of the subject matter of this Agreement.
36. Authority. Each signatory hereto warrants to the other party that it has authority
to sign on behalf of the party for whom it purports to sign.
37. Non -Liability of Officers and Employees. No officer, official, member,
employee, agent, or representative of Agency shall be personally liable to Participant, or any
successor or assign of same, in the event of any default or breach by Agency, or for any amount
which may become due to Participant, or any successor or assign of same, or for breach of any
obligation of the terms of this Agreement.
38. Time of Essence. Time is of the essence of every portion of this Agreement in
which time is a material part.
39. Interpretation; Severability. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or against either
party hereto by reason of the authorship of this Agreement or any other rule of construction
which might otherwise apply. The Section headings are for purposes of convenience only, and
shall not be construed to limit or extend the meaning of this Agreement. Each provision of this
Agreement shall be severable from the whole. If any provision of this Agreement shall be found
contrary to law, the remainder of this Agreement shall continue in full force.
40. Integration; Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement, and this Agreement supersedes and cancels
any and all previous negotiations, arrangements, agreements, and understandings, if any,
between the parties with respect to the subject matter hereof, and none shall be used to interpret
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this Agreement. This Agreement may be amended at any time by the mutual consent of the
parties by an instrument in writing.
41. Counterparts. This Agreement may be executed in counterparts, each of which,
when this Agreement has been signed by each of the parties hereto, shall be deemed to be an
original.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year written below.
"Participant"
Date: I Printed Name:
LN
Date: , Printed Name:
"Agency"
LA QUINTA REDEVELOPMENT AGENCY
Date: By:
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Agency Legal Counsel
882/015610-0061
398366.03 a12/15/03 -17-
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , , before me, , Notary
Public, personally appeared
personally known
to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names)
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.
Witness my hand and official seal.
Notary Public
[SEAL]
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On 9 , before me,
Notary
Public, personally appeared
personally known
to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
398366.03 a12/15/03 -18-
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
personally known
to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061 -19-
398366.03 a12/15/03
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
[To be inserted]
882/015610-0061
398366.03 a12/15/03
EXHIBIT "B"
CALCULATION OF AFFORDABLE HOUSING COST
"Affordable Housing Cost" for the purposes of the Affordable Housing Agreement is that
purchase price (inclusive of the proceeds of the Homebuyer Assistance) which would result in a
monthly housing cost which is not less than twenty-eight percent (28%) of the gross income of
the purchaser and does not exceed the greater of (a) the product of thirty-five percent (35%)
times one hundred ten percent (110%) of Riverside County median income adjusted for family
size appropriate for the unit for Eligible Buyers earning not more than one hundred ten percent
(110%) of Riverside County median income, or (b) the product of thirty-five percent (35%) of
the actual gross income of the household for Eligible Buyers earning more than one hundred ten
percent (110%) of Riverside County median income. The following is a worksheet of how to
calculate Affordable Housing Cost using the two methods set forth above:
A. All Moderate Income Buyers
Monthly housing costs may not exceed l/12 of 3 5 % x 110% of Riverside County Median
Income adjusted for family size appropriate for the unit.
For a two- bedroom housing Unit, monthly housing costs may not exceed 1/12 of 35% x
110% of Riverside County Median Income for a family of 3 (example of Median Income is
$45,900 in Riverside County pursuant to regulations issued by the California Department of
Housing and Community Development in March 2003, or $1,473).
Monthly Housing Costs include:
a. Mortgage Principal and Interest
b. Private Mortgage Insurance
C. Property Taxes
d. Fire/Casualty Insurance
e. Property Maintenance
f. Utilities Allowance
g. Homeowner's Association ("HOA") Fees
For example, in the following situation, for a 2 bedroom housing Unit, assuming
an 8% interest rate on a conventional loan, and assuming a down payment of at least 3% of the
purchase price and an average second trust deed loan from the Agency of $60,000, the maximum
loan amount would be $137,880 and the maximum purchase price would be $204,000 (down
payment of $6,120 + Agency Loan of $60,000 + first trust deed loan of $137,880). The
foregoing is based upon the following monthly housing costs:
882/015610-0061
398366.03 a12/15/03 -1-
a.
Mortgage Principal and Interest
$1005.00
b.
Private Mortgage Insurance (Included in
$0.00
Mortgage Interest Rate)
C.
Property Taxes
$203.00
d.
Fire/Casualty Insurance (Included in HOA)
$45.00
e.
Property Maintenance
$20.00
f.
Utilities Allowance
$65.00
g.
Homeowner's Association
$120.00
TOTAL:
$1,458.001
B. Buyer's Income is between 110% and 120% of Riverside County
Median Income
Under method (b), monthly housing costs may not exceed 1/12 of 35% of the purchaser's
income, instead of the formula set forth in paragraph (a) above.
For example, if the purchaser is a three -person household earning $54,000 monthly
housing costs may not exceed $1,575. The maximum sales price would be calculated in the
same manner as in paragraph (a) above. For example, if all the other assumptions stated in that
paragraph also apply herein, the purchaser's maximum loan amount would be $149,520, and the
maximum purchase price, absent the Agency Second Trust Deed Loan would be $156,000. The
foregoing is based upon the following monthly housing costs:
a. Mortgage Principal and Interest $1090.00
b. Private Mortgage Insurance (Included in $0.00
Mortgage Interest Rate)
C. Property Taxes $225.00
d. Fire/Casualty Insurance (Included in HOA) $50.00
e. Property Maintenance $20.00
f. Utilities Allowance $65.00
g. Homeowner's Association $120.00
TOTAL: $1,570.001
882/015610-0061
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The foregoing are intended to be examples of how to calculate affordable housing cost, and the
actual numbers will vary depending upon such factors as changes in median income, interest
rates, amount of down payment, etc.
Please see attached chart of Riverside County median income for moderate income purchasers.
882/015610-0061
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RIVERSIDE COUNTY
2003 Affordable Housing Costs for Home Purchase Programs
for Persons of Moderate Income (3)
(Income figures based on Department of Housing and Community Development Income Limits dated March, 2003)
1 Person Household
2 Person Household
3 Person Household
Median
Median
Median
Income $35,700
Income $40,800
Income $45,900
Monthly
Affordable
Monthly
Monthly
Annual
Housing
Annual
Affordable
Annual
Affordable
Income(')
Cost(Z)
Income
Housing Cost
Income
Housing Cost
$42,850 �-$1,145
$48,950
$1,309
$55,100
$1,473
4 Person Household
5 Person Household
6 Person Household
Median
Median
Median
Income
$51,000
Income
$56,100
Income
$59,150
Monthly
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Annual
Affordable
Income
Housing Cost
Income
Housing Cost
I Income
Housing Cost
$61,200
$1,636
$66,100
$1,768
1 $71,000
$1.898
7 Person Household
8 Person Household
Median
Median
Income
$63,250
Income
$67,300
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Income
Housing Cost
Income
HousingCost
$75,900
$2,029
$80,800
$2,159
DEFINITIONS:
1. Annual Income: Gross income from all sources for all members of the
household.
2. Monthly Housing Costs: Amount of mortgage payment principal and interest,
mortgage insurance, property taxes, and property insurance.
3. Moderate Income Affordable Housing Costs: Assumes affordable housing costs
computed at 35% of 110% of median income; may not be less than 28% of
household's gross income.
882/015610-0061
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EXHIBIT "C"
NOTICE OF INTENT TO TRANSFER
[See attached]
882/015610-0061
398366.03 a]2115/03
NOTICE OF INTENT TO TRANSFER
NOTICE OF INTENT TO TRANSFER MUST BE DELIVERED
TO THE LA QUINTA REDEVELOPMENT AGENCY PRIOR
TO PROCEEDING WITH ANY TRANSFER OF THE
PROPERTY.
From:
To: La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Project Officer
Re: (street address)
La Quinta, CA (the "Property")
("Owner")
Owner desires to [sell, convey, transfer by inheritance or devise, lease, gift, otherwise
transfer] (circle appropriate words) the Property.
If the Agency has a program to help locate an Eligible Buyer, does the Owner want the
Agency to help look for an Eligible Buyer to buy the Property?
Yes
Date:
Signature of Owner
(U
Day time telephone of Owner
Date:
Signature of Owner
Day time telephone of Owner
882/015610-0061
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EXHIBIT "D"
REQUEST FOR APPROVAL OF PROPOSED BUYER
[See attached]
882/015610-0061
398366.03 a12/15/03
REQUEST FOR APPROVAL OF PROPOSED BUYER
THIS FORM MUST BE DELIVERED TO THE AGENCY BEFORE PROCEEDING WITH
ANY TRANSFER OF THE PROPERTY.
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
Attn: Project Officer
Re: Request for Approval of Proposed Buyer
To Whom It May Concern:
The undersigned is the owner of real property in La Quinta, located at
(the "Property"), which was developed
with assistance from the Agency ("Owner").
The Owner now desires to transfer the Property and by this letter is requesting the
Agency to approve the proposed buyer.
1. The Proposed Buyer is:
Name:
Current
Address:
Telephone
Number:
2. The terms of the proposed transfer are
(a) Sales price of $ . This sales price is based on the lesser of
.(i) Fair market value; or
(ii) The maximum price at which the Purchase Housing Cost of the
Proposed Buyer would not exceed Affordable Housing Cost.
The calculation of the Sales Price under this subsection (ii) is
illustrated in Exhibit `B" to the Affordable Housing Agreement.
IN ORDER TO ANSWER QUESTION 2(b) YOU MUST CALCULATE THE
PROPOSED SALES PRICE BASED ON AFFORDABLE HOUSING COST, TAKING INTO
882/015610-0061
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CONSIDERATION ALL ITEMS LISTED IN THE DEFINITION OF PURCHASE HOUSING
COST.
(b) Price of any personal property being sold by the Owner to the proposed buyer:
$ . (If none, so state.)
(c) The price of $ to be paid by the proposed buyer for any services of
Owner. (If none, so state).
(d) All other amounts of money or other consideration, if any, concerning the
Property or any other matter to be paid by the proposed buyer to the Owner: $
(If none, so state.)
(e) Sources of payment of sales price:
Sales price $
Cash down payment $
1 st loan $
2nd loan $
Other (describe) $
Total $
(f) The financing obtained by the proposed buyer to purchase the Property is as
follows:
1 st Loan:
Loan amount
Monthly payments:
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
882/015610-0061
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Lender's address:
2nd Loan:
Loan amount: $
Monthly payments: $
Interest rate
If variable interest, describe adjustment mechanism:
Due date:
Balloon payment amount:
Points and fees:
Lender:
Lender's address:
Other Loans: (describe, if none, so state)
(g) The monthly Purchase Housing Cost to be paid by the proposed transferee:
1 st loan monthly payment: $
2nd loan monthly payment: $
Other loans monthly payment: $
Taxes and assessments (1/12 of yearly taxes and $
assessments):
Insurance (1 / 12 of yearly premium): $
Homeowner's dues: $
Total: $
3. The proposed buyer represents, warrants and covenants the following:
(a) The Property will be the principal residence of the proposed transferee.
882/015610-0061
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(b) The combined maximum annual income for all household members of the
proposed buyer is $ . (This figure must include all sources of income.)
(c) The proposed buyer will deliver to the Agency a signed financial statement on a
form acceptable to the Agency.
4. The proposed buyer's household consists of the following persons who will reside in the
Property:
Adults (18 or over) - [name of each]:
Minors (under 18) [name of each]:
5. The proposed transferee must submit to the Owner, on a form available from the Owner,
an income certification so the Owner may determine if the proposed buyer is an "Eligible Buyer"
(as that term is defined in the Agreement).
6. A true and correct copy of the proposed buyer's most recent tax return to the U.S.
Internal Revenue Service is attached hereto.
7. A true and correct copy of the purchase and sale or other agreement between the Owner
and the proposed buyer is attached hereto.
882/015610-0061
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I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
OWNER:
Date
signature
signature
print name
print name
street address
telephone
city
state
zip code
PROPOSED BUYER:
Date
signature
signature
print name
print name
street address
telephone
city
state
zip code
882/015610-0061
398366.03 a12/15/03 -5-
Owner's Certification
Based on the Proposed Buyer's Certificate above, and all documents attached hereto, Owner
hereby certifies that:
(1) Proposed Buyer is an Eligible Buyer; and
(2) The monthly Purchase Housing Cost to be paid by the Proposed Buyer shall not
exceed the monthly Affordable Housing Cost.
[Capitalized terms used above are defined in the Agreement to which this certificate is attached.]
[Name]
Date:
882/015610-0061
398366.03 a12/15/03 _6_
EXHIBIT "E"
ASSIGNMENT AND ASSUMPTION AGREEMENT
[See attached]
882/015610-0061
398366.03 al2/15/03
Recording Requested By
And When Recorded Mail To:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, California 92253
Attn: Executive Director
(Space above for Recorder's use)
(Exempt from Recording Fee Per Gov. Code § 6103)
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement"), is made as of
by and among the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and
politic ("Agency"), ("Seller" or "Assignor"), and
("Buyer" or "Assignee").
WITNESSETH:
A. Seller is the owner in fee of that certain real property located in the City of La
Quinta, County of Riverside, State of California described in Exhibit "A" attached hereto and
made a part hereof (the "Property").
B. The Agency is the holder of that certain Promissory Note Secured by Deed of
Trust (the "Promissory Note") dated , with a Note Amount of Dollars
($ ), made by Seller and payable to the order of Agency. The Promissory Note is
secured by that certain Deed of Trust dated , from Seller as trustor to , as
trustee, in favor of Agency as beneficiary, and recorded on as Instrument Number
in the Official Records of Riverside County, California. (The Promissory Note and
the Deed of Trust are sometimes hereinafter referred to collectively as the "Loan Documents".)
The Deed of Trust encumbers the Property.
C. Buyer is acquiring the Property from Seller and has met all of Agency's
requirements to qualify therefor. Seller and Buyer desire that in connection with the sale of the
Property from Seller to Buyer that Agency, as beneficiary under the Loan Documents, consent to
the transfer of the obligation of the Loan Documents from Seller to Buyer.
C. Agency will consent to such acquisition provided that (i) Buyer assumes the
obligations of Seller under the Loan Documents, as set forth in this Agreement, and that (ii)
Seller shall not be released from any liability or obligations under the Loan Documents as further
provided herein.
NOW THEREFORE, Agency, Seller and Buyer agree as follows:
1. Effective Date. As used in this Agreement, the "Effective Date" shall be
882/015610-0061
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2. Consent by A eg ncy_. As of the Effective Date, Agency consents to the transfer of
the Property by Assignor/Seller to Assignee/Buyer. Such consent by Agency shall not constitute
a consent to any further or subsequent sale, conveyance or transfer by Assignee/Buyer of the
Property, or any part thereof, or any interest therein.
3. Assumption by Assi ng eeBWer. As of the Effective Date, Assignee/Buyer
assumes and agrees to be bound by the Loan Documents. Assignee/Buyer shall fully and
faithfully pay, perform and discharge, as and when payment, performance and discharge are due,
all of the obligations of Assignor/Seller under the Loan Documents, and each of them.
4. No Release of Assignor/Seller. There shall be no release of Assignor/Seller from
any liability or obligations arising under the Loan Documents. In the event of any default under
the Loan Documents, whether prior to or after the Effective Date, Agency shall have the option,
in its sole discretion, to pursue its remedies against Assignor/Seller, Assignee/Buyer or both.
5. Legal Effect. Except as modified by this Agreement, the Loan Documents are
unchanged and, as so modified, the Loan Documents shall remain in full force and effect. The
Deed of Trust (as modified by this Agreement) shall secure the Promissory Note, all extensions,
renewals and modifications thereof, all substitutions therefor, and all other indebtedness and
obligations recited in the Deed of Trust.
6. Entire Agreement. This Agreement contains the entire agreement among Agency,
Assignor/Seller and Assignee/Buyer with respect to the subject matter hereof and supersedes all
prior agreements, understandings, offers and negotiations, oral or written, with respect thereto.
This Agreement shall bind and inure to the benefit of Agency, Assignor/Seller and
Assignee/Buyer and their respective personal representatives, heirs, successors and assigns. This
Agreement shall be governed and construed in accordance with the laws of the State of
California.
IN WITNESS WHEREOF, Agency, Assignee/Seller and Assignee/Buyer have executed
this Agreement as of the date first hereinabove written.
LA QUINTA REDEVELOPMENT AGENCY,
a public body, corporate and politic
BY:
Executive Director
ASSIGNOR/SELLER ASSIGNEEBUYER
882/015610-0061
398366.03 a]2/15/03 -2-
EXHIBIT "A"
LEGAL DESCRIPTION
[TO BE INSERTED AT TIME FORM COMPLETED]
882/015610-0061
398366.03 a12/15/03 _3_
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Ouinta, CA 92253
(Space Above Line for Recorder's Use)
Exempt From Recording Fee Pursuant to Government Code § 6103
MEMORANDUM RE OPTION TO PURCHASE
This MEMORANDUM RE OPTION TO PURCHASE is entered into this _ day of
, by and between ("Owner") and the LA QUINTA
REDEVELOPMENT AGENCY ("Agency") with reference to the following:
A. Participant is the fee owner of record of that certain real property (the "Property")
located in the City of La Quinta, County of Riverside, State of California, legally described in
the attached Exhibit "A."
B. On or about , Owner and Agency entered into that certain
Affordable Housing Agreement ("Affordable Housing Agreement") recorded concurrently
herewith in the Official Records of the Riverside County Recorder's Office.
C. In consideration for Agency's provision of financial assistance to Owner which
enabled Owner to purchase the Property and in order to assist Agency in achieving its goal of
increasing, improving and preserving the supply of moderate income housing available within
the territorial jurisdiction of Agency, in accordance with the Community Redevelopment Law
(California Health and Safety Code Sections 33000 et M.), Owner has provided to Agency an
option to purchase the Property at the price and time, and subject to the terms and conditions, set
forth in Section 6 of the Affordable Housing Agreement. Reference to the Affordable Housing
Agreement is hereby made for a complete statement of Agency's option to purchase the
Property.
D. Agency's option to purchase, as set forth in Section 6 of the Affordable Housing
Agreement, shall terminate and be of no further force or effect on the date that is forty-five (45)
years after the date of recordation of the Affordable Housing Agreement.
E. Owner's obligations with respect to the option to purchase shall be covenants
running with the land and shall, without regard to technical classification or designation, legal or
otherwise, be, to the fullest extent permitted by law and equity, binding for the benefit and in
favor of and enforceable by Agency, its successors and assigns, against Owner, its successors
and assigns, to or of the Property or any interest therein, and any party in possession or
occupancy of the Property or portion thereof. Agency shall have the right, in the event of any
breach by Owner of any covenant relating to Agency's option to purchase, to exercise all the
rights and remedies, and to maintain any actions at law or suits in equity or other proper
proceedings, to enforce Agency's rights with respect thereto.
882/015610-0061
398363.01 a05/16/03
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date
and year written below.
Date:
Date:
Date: ,
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Agency Legal Counsel
"OWNER"
By:
Printed Name:
By:
Printed Name:
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY
Executive Director
882/015610-0061
398363.01 a05/16/03
STATE OF CALIFORNIA
ss.
COUNTY OF
On before me,
Public, personally
, Notary
appeared
personally
known to me (or 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.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
COUNTY OF
On
Public,
ss.
Notary Public
before me,
personally
, Notary
appeared
personally
known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
398363.01 a05/16/03
STATE OF CALIFORNIA )
ss.
COUNTY OF )
.M
Public,
before me,
personally
Notary
appeared
personally
known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
398363.01 a05/16/03
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN LAND SITUATED IN THE STATE OF CALIFORNIA,
COUNTY OF RIVERSIDE, CITY OF LA QUINTA, DESCRIBED BELOW:
[to be inserted]
882/015610-0061
398363.01 a05/16/03
PROMISSORY NOTE SECURED BY DEED OF TRUST
NOTICE TO MAKER: A PENALTY CONSISTING OF THE DIFFERENCE BETWEEN
MAKER'S SALE PRICE AND AN AFFORDABLE HOUSING COST SHALL BE DUE
AND PAYABLE IF CERTAIN EVENTS OCCUR.
E1
Property Address:
La Quinta, CA
La Quinta, California
FOR VALUE RECEIVED, the undersigned ("Maker") promises to pay to the La
Quinta Redevelopment Agency ("Holder"), at 78-495 Calle Tampico, La Quinta, California
92253, or at such other address as Holder may direct from time to time in writing,
NO/100 Dollars ($_ (the "Note Amount"), together with interest thereon as hereafter set
forth. All sums hereunder shall be payable in lawful money of the United States of America.
This Promissory Note Secured by Deed of Trust ("Promissory Note" or "Note") is secured by a
Deed of Trust with Assignment of Rents and Rider to Deed of Trust Attached Hereto ("Deed of
Trust").
1. Loan Agreement. This Promissory Note is made and delivered pursuant to and
in implementation of the Affordable Housing Agreement entered into by and between the Holder
and the Maker concurrently herewith and recorded on even date herewith in the Official Records
of the County of Riverside (the "Agreement"), a copy of which is on file as a public record with
the Holder and is incorporated herein by reference. The Maker acknowledges that but for the
execution of this Promissory Note, the Holder would not enter into the Agreement or make the
loan contemplated therein. Unless definitions of terms have been expressly set out at length
herein, each term shall have the same definition as set forth in the Agreement.
2. Interest Rate. The Note Amount shall accrue interest at the rate of seven percent
(7%) per annum, compounded annually.
3. Time of Payment. The term of this Note shall be forty-five (45) years from the
date of recordation of the Agreement ("Covenant Period"). At the end of the Covenant Period,
this Note shall be cancelled and the Note Amount, together with interest thereon, shall be
forgiven and the Deed of Trust reconveyed unless prior to that time an "Event of Acceleration"
(as that term is defined in Section 4 below) has occurred.
4. Events of Acceleration. The Note Amount shall become due and immediately
payable irrespective of any provisions herein to the contrary upon the occurrence of any one of
the following events of acceleration ("Event of Acceleration"): (i) "Transfer" of the Property (as
defined in Section 3 of the Agreement), except a Transfer which under applicable law, would
not, by itself, permit Holder to exercise a due on sale or due on encumbrance clause, or (ii) such
time if or when Maker (or upon a Transfer of the Property by Maker that constitutes a "Permitted
Transfer," [as defined in Section 3 of the Agreement] Maker's transferee) is no longer in
compliance with the occupancy requirements set forth in Section 9 of the Agreement or is in
882/015610-0061
398344.02 a06/24/03
default of any other obligation under the Agreement, this Note, or the Deed of Trust.
Notwithstanding the above, however, the following Transfers of the Property shall not be an
Event of Acceleration:
a. A Transfer to Maker's Spouse;
b. An "Involuntary Transfer" (as defined in Section 3 of the Agreement) that
satisfies both of the following:
(i) The transferee(s) gives notice to Holder of such event within thirty
(30) days after its occurrence and the transferee(s) assumes the Maker's obligations under
the Agreement, by execution of an assignment and assumption agreement to be provided
by Holder; and
(ii) Where the transferee is not an "Eligible Buyer" (as defined below),
and such transferee Transfers the Property to an Eligible Buyer within one hundred
eighty (180) days after the transferee obtains title to the Property.
Holder's Executive Director may, in his or her sole and absolute discretion, waive some
or all of the requirements of this Section 4.
For purposes of this Note, an "Eligible Buyer" is a "person or family of moderate
income" who currently earns less than 120% of the current annual "area median income" for the
Riverside County area, adjusted for family size appropriate for the unit (as those terms are
defined in California Health and Safety Code Section 50093).
5. Sale of Property; Holder's Option to Purchase.
a. If Maker desires to sell, exchange, quitclaim or in any manner dispose of
the Property or any part thereof ("Proposed Sale"), Maker shall first notify Holder in writing no
later than ten (10) days prior to the date each time the Property is placed on the market for a
Proposed Sale.
b. Maker shall not sell or transfer the Property until such time as Holder has
determined (i) the proposed buyer is an Eligible Buyer; (ii) the proposed buyer intends to occupy
the Property as its principal residence; and (iii) the Proposed Sale is at an "Affordable Housing
Cost" (as defined below). If Maker identifies a buyer whom the Maker believes to be an Eligible
Buyer, Maker shall cooperate with and reasonably assist Holder with the determination of
whether the proposed buyer is an Eligible Buyer. Within ten (10) days after Maker locates the
proposed buyer, Maker shall submit to Holder (1) information evidencing the proposed buyer's
identity and income in order that Holder may make a preliminary determination regarding the
buyer's household income status ("Preliminary Determination"); and (2) the price at which
Maker proposes to sell the Property (less the value of any personal property or equipment
included in said price). In the event Holder makes a Preliminary Determination that the buyer
qualifies as an Eligible Buyer, Maker may proceed with opening an escrow for a Proposed Sale;
provided, however, that not less than twenty (20) days prior to the date escrow is scheduled to
close for the Proposed Sale, Maker shall submit to Holder adequate information to enable the
Holder to make a final determination regarding whether the buyer qualifies as an Eligible Buyer
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and whether the Property is available to such buyer at an Affordable Housing Cost ("Final
Determination"). Such information shall include the identity of the proposed buyer, the purchase
and sale agreement pursuant to which Maker proposes to sell the Property to the proposed buyer,
and information evidencing the income of the proposed buyer including, but not limited to,
original or true copies of pay stubs, income tax records or other financial documents. Holder
may request additional information reasonably required to make a Final Determination regarding
the proposed buyer's status. If Holder is unable to make a Final Determination regarding the
proposed buyer's income as provided herein prior to the date set for the Proposed Sale, then the
proposed buyer's income shall be deemed to exceed the maximum allowable income limit for
Eligible Buyer status and Maker may not conclude the Proposed Sale.
As used herein, the term "Affordable Housing Cost" shall be that purchase price which
would result in an annual "Purchase Housing Cost" (as defined below) which does not exceed
one of the following calculations, as applicable:
(i) For moderate income purchasers earning not more than one
hundred ten percent (110%) of Riverside County median income adjusted for family size
appropriate to the unit, Affordable Housing Cost shall be not less than twenty-eight
percent (28%) of the gross income of the household nor exceed the product of thirty-five
percent (35%) times one hundred ten percent (110%) of Riverside County median income
adjusted for family size appropriate for the unit; or
(ii) For moderate income purchasers earning more than one hundred
ten percent (110%) but less than one hundred twenty percent (120%) of the Riverside
County median income, Affordable Housing Cost shall be the product of thirty-five
percent (35%) of the actual gross income of the household.
"Purchase Housing Cost" shall be a cost that includes all of the following associated with
the Property, estimated or known as of the date of the Proposed Sale of the Property:
(1) Principal and interest payments on a mortgage loan
including any rehabilitation loans and any loan insurance fees associated
therewith.
(2) Property taxes and assessments.
(3) Fire and casualty insurance covering replacement value of
property improvements.
(4) Any homeowner association fees.
(5) A reasonable utility allowance.
For purposes of this Note, the term "adjusted for family size appropriate to the unit" shall
mean a household of one person in the case of a studio unit, two persons in the case of a one -
bedroom unit, three persons in the case of a two -bedroom unit, four persons in the case of a
three -bedroom unit, and five persons in the case of a four bedroom unit.
882/015610-0061
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Maker shall contact the Holder to determine the applicable Affordable Housing Cost for a
particular proposed Eligible Purchaser.
C. Upon (i) Maker's sale of the Property to a person who is an Eligible Buyer
(provided that person's status as an Eligible Buyer has been verified by Holder pursuant to this
Section 5) at an Affordable Housing Cost, and (ii) the Eligible Buyer's execution of an
assignment and assumption agreement in a form satisfactory to Holder's legal counsel, this Note
shall be assigned to the Eligible Buyer.
d. At any time prior to the time Maker enters into a binding agreement with
an Eligible Buyer for a Proposed Sale, Holder shall have an option to (i) purchase all of the
Property from Maker at the Affordable Housing Cost set forth in paragraph b(i) above, or (ii) to
cause the purchase of all of the Property by an Eligible Buyer at an Affordable Housing Cost.
Holder's exercise of such option to purchase shall be made by delivery of written notice to
Maker. In the event Holder either purchases the Property or arranges the purchase by an Eligible
Buyer, an escrow shall be established to close within forty-five (45) days after delivery of
Holder's notice of exercise, subject to any extensions, at Holder's option, for causes outside the
control of Holder. In the event Holder exercises its option to purchase the Property pursuant to
clause (i) above, the balance of the Note Amount and any accrued interest thereon shall be due
and payable to Holder prior to or at the close of escrow. In the event Holder arranged the
purchase by an Eligible Buyer pursuant to clause (ii) above, the Eligible Buyer shall be required
to execute an assignment and assumption agreement in a form satisfactory to Holder's legal
counsel.
e. In the event Maker sells the Property to a purchaser who does not qualify
as an Eligible Buyer, Holder shall have an option to purchase the Property from the purchaser at
the Affordable Housing Cost set forth in paragraph b(i) above.
f. Holder's option to purchase set forth in paragraphs d and a of this Section
5 shall terminate and be of no further force or effect on the date the Covenant Period terminates.
Holder's option to purchase set forth in this Section shall be memorialized by the Memorandum
Re Option to Purchase substantially in the form as distributed to Maker prior to receiving the
Note Amount to be recorded against the Property concurrently herewith.
MAKER UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED SALE, AND THAT THE AFFORDABLE HOUSING COST PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE
PROPERTY AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS
OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THE
AFFORDABILITY COVENANTS IN THIS NOTE. MAKER FURTHER
ACKNOWLEDGES THAT IN SETTING THE AFFORDABLE HOUSING COST THE
PRIMARY OBJECTIVE OF HOLDER AND THIS AGREEMENT IS TO PROVIDE
HOUSING TO ELIGIBLE BUYERS AT AN AFFORDABLE HOUSING COST.
MAKER'S INITIALS
882/015610-0061
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6. Liquidated Damages for Prohibited Transfer. In the event Holder seeks
monetary damages for a Prohibited Transfer, Maker shall be required, to the extent permitted by
law, to pay to Holder the entire amount of the "Sale Price" (as defined below) received in excess
of the Affordable Housing Cost permitted pursuant to this Agreement; provided, however, that
nothing herein shall be deemed to limit Holder's remedy for a Prohibited Transfer to seeking
monetary damages, and Holder shall be entitled to pursue any other equitable remedy permitted
by law, including specific performance or injunctive relief, to prevent a Prohibited Transfer. For
purposes of this Section 6, the "Sale Price" is the price to be paid by the buyer of the Property to
Maker for Maker's interest in the Property, after deduction of escrow fees, recording fees,
transfer taxes, title insurance costs, broker's commissions, loan fees or any other closing or
transaction costs paid by Maker.
THE PARTIES HERETO AGREE THAT THE AMOUNT SET FORTH IN THIS
SECTION 6 (THE "DAMAGE AMOUNT") CONSTITUTES A REASONABLE
APPROXIMATION OF THE ACTUAL DAMAGES THAT HOLDER WOULD SUFFER DUE
TO THE DEFAULTS BY MAKER SET FORTH IN THIS SECTION 6, CONSIDERING ALL
OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE OF THIS NOTE,
INCLUDING THE RELATIONSHIP OF THE DAMAGE AMOUNTS TO THE RANGE OF
HARM TO HOLDER AND ACCOMPLISHMENT OF HOLDER'S PURPOSE OF
ASSISTING IN THE PROVISION OF AFFORDABLE HOUSING TO ELIGIBLE BUYERS
THAT REASONABLY COULD BE ANTICIPATED AND THE ANTICIPATION THAT
PROOF OF ACTUAL DAMAGES WOULD BE COSTLY OR INCONVENIENT. THE
DAMAGE AMOUNT SET FORTH IN THIS SECTION 6 SHALL BE THE SOLE DAMAGES
REMEDIES FOR THE DEFAULTS SET FORTH IN THIS SECTION 6, BUT NOTHING IN
THIS SECTION 6 SHALL BE INTERPRETED TO LIMIT HOLDER'S REMEDY FOR SUCH
DEFAULT TO SUCH A DAMAGES REMEDY. IN PLACING ITS INITIAL AT THE
PLACES PROVIDED HEREINBELOW, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY HAS BEEN REPRESENTED BY COUNSEL OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED BY COUNSEL TO EXPLAIN THE CONSEQUENCES OF THE
LIQUIDATED DAMAGES PROVISION AT OR PRIOR TO THE TIME EACH EXECUTED
THIS AGREEMENT.
MAKER'S INITIALS: HOLDER'S INITIALS:
Notwithstanding any of the above, nothing herein is intended to preclude the Holder's
recovery of its attorneys' fees and costs incurred to enforce this Section, as provided in
Section 12.
7. Security for Note. This Promissory Note is secured by a second deed of trust of
even date herewith, executed by Maker as Trustor in favor of Holder as Trustee.
8. Prepayment of Note. Maker may prepay this Note to Holder, provided that any
prepayment must be in full and not in part. Prepayment will be treated in the same manner as
refinancing of the Property.
882/015610-0061
398344.02 a06/24/03 -5-
9. Holder May Assign. Holder may, at its option, assign its right to receive
payment under this Promissory Note without necessity of obtaining the consent of the Maker.
10. Maker Assignment. In no event shall Maker assign or transfer any portion of
this Promissory Note without the prior express written consent of the Holder, which consent
shall be given by the Holder only in the event that the Holder determines that the assignee or
transferee is an Eligible Buyer, that the assignee's or transferee's monthly housing payments are
at an Affordable Housing Cost, and that the assignee or transferee has expressly assumed this
Promissory Note and the Agreement by execution of a written assignment document to be
provided by the Holder.
11. Joint and Several. The undersigned, if more than one, shall be jointly and
severally liable hereunder.
12. Attorneys' Fees and Costs. In the event that any action is instituted to enforce
payment under this Promissory Note, the parties agree the non -prevailing party shall be
responsible for and shall pay to the prevailing party all court costs, including expert witness fees,
and all attorneys' fees incurred in enforcing this Note.
13. Amendments. This Note may not be modified or amended except by an
instrument in writing expressing such intention executed by the parties sought to be bound
thereby, which writing must be so firmly attached to this Note so as to become a permanent part
thereof.
14. Maker's Waivers. Maker waives any rights to require the Holder to: (a) demand
payment of amounts due (known as "presentment"), (b) give notice that amounts due have not
been paid (known as "notice of dishonor"), and (c) obtain an official certification of nonpayment
(known as "protest").
15. Notice. Any notice that must be given under this Note shall be given by personal
delivery or by deposit with the United State Postal Service for mailing, postage prepaid,
registered or certified mail, return receipt requested, to Maker, at the Property Address above or
such other address as Maker shall direct from time to time in writing, and to Holder, at Holder's
address stated in the preamble to this Note. Failure or delay in giving any notice required
hereunder shall not constitute a waiver of any default or late payment, nor shall it change the
time for any default or payment.
16. Successors Bound. This Promissory Note shall be binding upon the parties hereto
and their respective heirs, successors and assigns.
[END — SIGNATURE PAGE FOLLOWS]
882/015610-0061
398344.02 a06/24/03 -6-
IN WITNESS WHEREOF, Maker has executed this Promissory Note.
"Maker"
By:
Printed Name:
By:
Printed Name:
Dated:
Dated:
The foregoing Promissory Note is approved, and consented to, by the Holder.
"Holder"
LA QUINTA REDEVELOPMENT AGENCY
M.
Executive Director
Dated:
882/015610-0061
398344.02 a06/24/03 -7-
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
LA QUINTA REDEVELOPMENT AGENCY
78495 Calle Tampico
La Quinta, CA 92253
Attn: City Clerk
(Space Above This Line For Kecoraer's use)
(Exempt From Recording Fees Pursuant To Government Code Section 6103)
DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER
TO DEED OF TRUST ATTACHED HERETO
This DEED OF TRUST WITH ASSIGNMENT OF RENTS AND RIDER TO DEED OF TRUST ATTACHED HERETO
("Deed of Trust"), made this day of between herein called
PARTICIPANT, whose address is , FIRST AMERICAN TITLE
INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and THE LA QUINTA REDEVELOPMENT
AGENCY, herein called BENEFICIARY,
WITNESSETH: That Participant grants to Trustee in trust, with power of sale, that property in the City of La Quinta, County of
Riverside, State of California, described in the legal description attached hereto as Exhibit "A", together with rents, issues and profits
thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon Beneficiary to collect and apply
such rents, issues and profits for the purpose of securing (1) payment of the sum of $ , with interest thereon according to the
terms of a promissory note or notes of even date herewith made by Participant, payable to order of Beneficiary, and extensions or
renewals thereof; (2) the performance of each agreement of Participant incorporated by reference or contained herein; and (3) payment
of additional sums and interest thereon which may hereafter be loaned to Participant,. or his successors or assigns, when evidenced by
a promissory note or notes reciting that they are secured by this Deed of Trust.
A. To protect the security of this Deed of Trust, Participant agrees:
1) To keep said property in good condition and repair, not to remove or demolish any building thereon; to complete or restore
promptly and in a good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay
when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting said property or requiring any
alterations or improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit any act upon
said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of
said property may be reasonably necessary, the specific enumerations herein not excluding the general.
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The
amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in
such order as Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any part thereof may be
released to Participant. Such application or release shall not cure or waive any default or notice of default hereunder or invalidate any
act done pursuant to such notice.
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in
any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this
Deed.
4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on
appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which
appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
Should Participant fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but without
obligation so to do and without notice to or demand upon Participant and without releasing Participant from any obligation hereof, may:
make or do the same in such, manner and to such extent as either may deem necessary to protect the security hereof, Beneficiary or
Trustee being authorized to enter upon said property for such purposes; appear in and defend any action or proceeding purporting to
398353 v1
affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance,
charge or lien which in the judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary
expenses, employ counsel and pay his reasonable fees.
5) To pay immediately upon demand all sums so expended by Beneficiary or Trustee, with interest from date of expenditure at
the amount allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof
regarding the obligation secured hereby any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the
time when said statement is demanded.
B. It is mutually agreed:
1) That any award in connection with any condemnation for public use of or injury to said property or any part thereof is
hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with
the same effect as above provided for disposition of proceeds of fire or other insurance.
2) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right either to
require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
3) That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and
presentation of this Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the
indebtedness secured hereby, Trustee may: reconvey any part of said property; consent to the making of any map or plat thereof; join
in granting any easement thereon, or join in any extension agreement or any agreement subordinating the lien or charge hereof.
4) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon surrender of this
Deed and said note to Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon
payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of
any matters or facts shall be conclusive proof of the truthfulness thereof. The Grantee in such reconveyance may be described as "the
person or persons legally entitled thereto."
5) That as additional security, Participant hereby gives to and confers upon Beneficiary the right, power and authority, during
the continuance of this Trust, to collect the rents, issues and profits of said property, reserving unto Participant the right, prior to any
default by Participant in payment of any indebtedness secured hereby or in the performance of any agreement hereunder, to collect
and retain such rents, issues and profits as they become due and payable. Upon any such default, Beneficiary may at any time without
notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the adequacy of any security for the
indebtedness hereby secured, enter upon and take possession of said property or any part thereof, in his own name sue for or
otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of
operation and collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as Beneficiary
may determine. The entering upon and taking possession of said property, the collecting of such rents, issues and profits and the
application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to
such notice.
6) That upon default by Participant in payment of any indebtedness secured hereby or in the performance of any agreement
hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration
of default and demand for sale and of written notice of default and of election to cause to be sold said property, which notice Trustee
shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed, said note and all documents evidencing
expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and notice of
sale having been given as then required by law, Trustee, without demand on Participant, shall sell said property at the time and place
fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the
highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of
said property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by
public announcement at the time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the
property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be
conclusive proof of the truthfulness thereof. Any person, including Participant, Trustee, or Beneficiary as hereinafter defined, may
purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with
sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued
interest at the amount allowed by law in effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the
person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in
writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the
Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where said property is situated
shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee
predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Participant,
Trustee and Beneficiary hereunder, the book and page where this Deed is recorded and the name and address of the new Trustee.
8} That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the
note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context so requires, the masculine
gender includes the feminine and/or neuter, and the singular number includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of pending sale under any other Deed of Trust or of any action or proceeding in
which Participant, Beneficiary or Trustee shall be a party unless brought by Trustee.
The undersigned Participant requests that a copy of any notice of default and of any notice of sale hereunder be mailed to him at his
address hereinbefore set forth.
Signature of Participant
STATE OF CALIFORNIA
COUNTY OF
On
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before me,
Signature of Participant
personally appeared
personally known to me ( or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) istare 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.
WITNESS my hand and official seal.
Signature
(This area for official notarial seal)
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and of all indebtedness secured by the foregoing Deed of Trust. Said note
or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and
directed, on payment to you of any sums owing to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, an all other
evidences of indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey, without
warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by you under the same.
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee
for cancellation before reconveyance will be made.
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882/015610-0061
398353.03 a12/15/03
EXHIBIT "A"
LEGAL DESCRIPTION
[to be inserted]
882/015610-0061 Exhibit "A"
398353.03 a12/15/03
RIDER TO DEED OF TRUST
This Deed of Trust is subject to the terms and conditions of that certain Affordable
Housing Agreement dated concurrently herewith and recorded on even date herewith in the
Official Records of the County of Riverside (the "Affordable Housing Agreement") and
incorporated herein by reference, pursuant to which Beneficiary has agreed to loan Participant
the sum of Dollars (the "Agency Loan"). All terms in this Rider to Deed
of Trust, if not separately defined herein, shall have the meanings as defined in the Affordable
Housing Agreement.
1. Property Transfer Restrictions.
a. Participant shall not "Transfer" (as defined below) or permit the Transfer
of the Property unless the Transfer is a "Permitted Transfer" (as defined below). A "Transfer" is
(i) any sale, assignment, or transfer of an interest in the Property, including, without limitation, a
fee simple interest, tenancy in common, joint tenancy, community property, tenancy by the
entireties, life estate, or other limited estate, leasehold interest or any rental of the Property; (ii)
any interest evidenced by a land contract; (iii) the refinancing of the lien of this Deed of Trust, or
(iv) the refinancing of any lien to which the lien of this Deed of Trust is subordinated (the "First
Lien") other than a "Permitted First Lien Refinance" (as defined in Section 7 of the Affordable
Housing Agreement).
b. Transfers shall be designated as voluntary or involuntary. Involuntary
Transfers are Transfers that occur by operation of law, in the absence of an express conveyance
by Participant, and include, but are not limited to, Transfers by devise, inheritance,
incompetency, marriage, and divorce (collectively, "Involuntary Transfers"). Voluntary
Transfers occur by affirmative act of Participant, and include Transfers by gift, sale and lease,
any refinance that constitutes a Transfer, and any other Transfer that does not constitute an
Involuntary Transfer.
C. The following Transfers shall constitute "Permitted Transfers":
(i) Voluntary Transfers to a spouse or to an "Eligible Buyer" (as defined in Section 2 below); and
(ii) Involuntary Transfers. A Transfer that does not constitute a Permitted Transfer (a
"Prohibited Transfer") is expressly prohibited by this Rider to Deed of Trust and shall be null
and void and shall constitute a default of Participant under this Rider to Deed of Trust, entitling
Beneficiary to exercise its right to purchase the Property from the new owner, as described in
Section 3 herein, as well as all remedies available at law or equity, including without limitation
the enforcement of the liquidated damages provision in Section 4 of this Rider to Deed of Trust.
2. Events of Acceleration. The Agency Loan shall become due and immediately
payable irrespective of any provisions herein to the contrary upon the occurrence of any one of
the following events of acceleration ("Event of Acceleration"): (i) Transfer of the Property (as
defined in Section 1 above), except a Transfer which under applicable law, would not, by itself,
permit Beneficiary to exercise a due on sale or due on encumbrance clause, or (ii) such time if or
when Participant (or upon Participant's Transfer of the Property pursuant to a Permitted
Transfer, Participant's transferee) is no longer in compliance with the occupancy requirements
set forth in Section 9 of the Affordable Housing Agreement or is in default of any other
obligation under the Affordable Housing Agreement, the Note, or this Deed of Trust.
882/015610-0061
398353.03 a12/15/03
Notwithstanding the above, however, the following Transfers of the Property shall not be an
Event of Acceleration:
a. A Transfer to Participant's Spouse;
b. An Involuntary Transfer that satisfies both of the following:
(i) The transferee(s) gives notice to Beneficiary of such event within
thirty (30) days of its occurrence and the transferee(s) assumes the Participant's
obligations under the Affordable Housing Agreement, by execution of an assignment and
assumption agreement to be provided by Beneficiary; and
(ii) Where the transferee is not an Eligible Buyer, and such transferee
Transfers the Property to an Eligible Buyer within one hundred eighty (180) days after
the transferee obtains title to the Property.
Beneficiary's Executive Director may, in his or her sole and absolute discretion, waive
some or all of the requirements of this Section 2.
For purposes of this Rider to Deed of Trust, an "Eligible Buyer" is a person who is a
"person or family of moderate income" who currently earns less than 120% of the current annual
"area median income" for the Riverside County area adjusted for family size appropriate for the
unit (as those terms are defined in California Health & Safety Code Section 50093).
3. Sale of Property; Beneficiary's Option to Purchase.
a. If Participant desires to sell, exchange, quitclaim or in any manner dispose
of the Property or any part thereof ("Proposed Sale"), Participant shall first notify Beneficiary in
writing no later than ten (10) days prior to the date each time the Property is placed on the
market for a Proposed Sale.
b. Participant shall not sell or transfer the Property until such time as
Beneficiary has determined (i) the proposed buyer is an Eligible Buyer; (ii) the proposed buyer
intends to occupy the Property as its principal residence; and (iii) the Proposed Sale is at an
"Affordable Housing Cost" (as defined below). If Participant identifies a buyer whom the
Participant believes to be an Eligible Buyer, Participant shall cooperate with and reasonably
assist Beneficiary with the determination of whether the proposed buyer is an Eligible Buyer.
Within ten (10) days after Participant locates the proposed buyer, Participant shall submit to
Beneficiary (1) information evidencing the proposed buyer's identity and income in order that
Beneficiary may make a preliminary determination regarding the buyer's household income
status ("Preliminary Determination"); and (2) the price at which Participant proposes to sell the
Property (less the value of any personal property or equipment included in said price). In the
event Beneficiary makes a Preliminary Determination that the buyer qualifies as an Eligible
Buyer, Participant may proceed with opening an escrow for a proposed sale; provided, however,
that not less than twenty (20) days prior to the date escrow is scheduled to close for the Proposed
Sale, Participant shall submit to Beneficiary adequate information to enable the Beneficiary to
make a final determination regarding whether the buyer qualifies as an Eligible Buyer and
whether the Property is available to such buyer at an Affordable Housing Cost ("Final
Determination"). Such information shall include the identity of the proposed buyer, the purchase
882/015610-0061
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and sale agreement pursuant to which Participant proposes to sell the Property to the proposed
buyer, and information evidencing the income of the proposed buyer including, but not limited
to, original or true copies of pay stubs, income tax records or other financial documents.
Beneficiary may request additional information reasonably required to make a Final
Determination regarding the proposed buyer's status. If Beneficiary is unable to make a Final
Determination regarding the proposed buyer's income as provided herein prior to the date set for
the Proposed Sale, then the proposed buyer's income shall be deemed to exceed the maximum
allowable income limit for Eligible Buyer status and Participant may not conclude the Proposed
Sale.
As used herein, the term "Affordable Housing Cost" shall be that purchase price which
would result in an annual "Purchase Housing Cost" (as defined below) which does not exceed
one of the following calculations, as applicable:
(i) For moderate income purchasers earning not more than one
hundred ten percent (110%) of Riverside County median income adjusted for family size
appropriate to the unit, Affordable Housing Cost shall be not less than twenty-eight
percent (28%) of the gross income of the household nor exceed the product of thirty-five
percent (35%) times one hundred ten percent (110%) of Riverside County median income
adjusted for family size appropriate for the unit; or
(ii) For moderate income purchasers earning more than one hundred
ten percent (110%) but less than one hundred twenty percent (120%) of the Riverside
County median income, Affordable Housing Cost shall be the product of thirty-five
percent (35%) of the actual gross income of the household.
"Purchase Housing Cost" shall be a cost that includes all of the following associated with
the Property, estimated or known as of the date of the Proposed Sale of the Property:
(1) Principal and interest payments on a mortgage loan
including any rehabilitation loans and any loan insurance fees associated
therewith.
(2) Property taxes and assessments.
(3) Fire and casualty insurance covering replacement value of
property improvements.
(4) Any homeowner association fees.
(5) A reasonable utility allowance.
For purposes of this Rider to Deed of Trust, the term "adjusted for family size appropriate
for the unit" shall mean a household of one person in the case of a studio unit, two persons in the
case of a one -bedroom unit, three persons in the case of a two -bedroom unit, four persons in the
case of a three -bedroom unit, and five persons in the case of a four -bedroom unit.
Participant shall contact the Beneficiary to determine the applicable Affordable Housing
Cost for a particular proposed Eligible Buyer.
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C. Upon (i) Participant's sale of the Property to a person who is an Eligible
Buyer (provided that person's status as an Eligible Buyer has been verified by Beneficiary
pursuant to this Section 3) at an Affordable Housing Cost, and (ii) the Eligible Buyer's execution
of an assignment and assumption agreement in a form satisfactory to Beneficiary's legal counsel,
the Agency Loan shall be assigned to the Eligible Buyer.
d. At any time prior to the time Participant enters into a binding agreement
with an Eligible Buyer for a Proposed Sale, Beneficiary shall have an option to (i) purchase all of
the Property from Participant at the Affordable Housing Cost set forth in paragraph b(i) above, or
(ii) cause the purchase of all of the Property by an Eligible Buyer at an Affordable Housing Cost.
Beneficiary's exercise of such option to purchase shall be made by delivery of written notice to
Participant. In the event Beneficiary either purchases the Property or arranges the purchase by
an Eligible Buyer, an escrow shall be established to close within forty-five (45) days after
delivery of Beneficiary's notice of exercise, subject to any extensions, at Beneficiary's option,
for causes outside the control of Beneficiary. In the event Beneficiary exercises its option to
purchase the Property pursuant to clause (i) above, the balance of the Agency Loan and any
accrued interest thereon shall be due and payable to Beneficiary prior to or at the close of
escrow. In the event Beneficiary arranges the purchase by an Eligible Buyer pursuant to clause
(ii) above, the Eligible Buyer shall be required to execute an assignment and assumption
agreement in a form satisfactory to Beneficiary's legal counsel.
e. IN THE EVENT PARTICIPANT SELLS THE PROPERTY TO A
PURCHASER THAT DOES NOT QUALIFY AS AN ELIGIBLE BUYER,
BENEFICIARY SHALL HAVE AN OPTION TO PURCHASE THE PROPERTY FROM
THE PURCHASER AT THE AFFORDABLE HOUSING COST SET FORTH IN
PARAGRAPH b(ii) ABOVE.
THE FOREGOING CONSTITUTES NOTICE TO ANY PURCHASER OF THE
PROPERTY WHO HAS PURCHASED THE PROPERTY WITHOUT OBTAINING THE
PRIOR APPROVAL OF BENEFICIARY.
f. Beneficiary's option to purchase set forth in paragraphs d and a of this
Section 3 shall terminate and be of no further force or effect on the date that is forty-five (45)
years after the recordation of the Affordable Housing Agreement. Beneficiary's option to
purchase set forth in this Section 3 shall be memorialized by the Memorandum Re Option to
Purchase substantially in the form as distributed to Participant prior to receiving the Agency
Loan to be recorded against the Property concurrently herewith.
PARTICIPANT UNDERSTANDS THAT THE DETERMINATION OF THE
AFFORDABLE HOUSING COST CAN BE MADE ONLY AT THE TIME OF THE
PROPOSED SALE, AND THAT THE AFFORDABLE HOUSING COST PERMITTED
HEREUNDER MAY BE LESS THAN THE FAIR MARKET VALUE OF THE
PROPERTY AND MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS
OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THE
AFFORDABILITY COVENANTS IN THIS DEED OF TRUST. PARTICIPANT
FURTHER ACKNOWLEDGES THAT IN SETTING THE AFFORDABLE HOUSING
COST THE PRIMARY OBJECTIVE OF BENEFICIARY AND THE BENEFICIARY'S
882/015610-0061
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PROVISION OF THE AGENCY LOAN THIS AGREEMENT IS TO PROVIDE
HOUSING TO ELIGIBLE BUYERS AT AN AFFORDABLE HOUSING COST.
PARTICIPANT'S INITIALS
4. Liquidated Damages for Prohibited Transfer. In the event Beneficiary seeks
monetary damages for a Prohibited Transfer, Participant shall be required, to the extent permitted
by law, to pay to Beneficiary the entire amount of the "Sale Price" (as defined below) received in
excess of the Affordable Housing Cost permitted pursuant to this Agreement; provided, however,
that nothing herein shall be deemed to limit Beneficiary's remedy for a Prohibited Transfer to
seeking monetary damages, and Beneficiary shall be entitled to pursue any other equitable
remedy permitted by law, including specific performance or injunctive relief, to prevent a
Prohibited Transfer. For purposes of this Section 4, the "Sale Price" is the price to be paid by the
buyer of the Property to Participant for Participant's interest in the Property, after deduction of
escrow fees, recording fees, transfer taxes, title insurance costs, broker's commissions, loan fees
or any other closing or transaction costs paid by Participant.
THE PARTIES HERETO AGREE THAT THE AMOUNT SET FORTH IN THIS
SECTION 4 (THE "DAMAGE AMOUNT") CONSTITUTES A REASONABLE
APPROXIMATION OF THE ACTUAL DAMAGES THAT BENEFICIARY WOULD
SUFFER DUE TO THE DEFAULTS BY PARTICIPANT SET FORTH IN THIS SECTION 4,
CONSIDERING ALL OF THE CIRCUMSTANCES EXISTING ON THE EFFECTIVE DATE
OF THIS DEED OF TRUST, INCLUDING THE RELATIONSHIP OF THE DAMAGE
AMOUNTS TO THE RANGE OF HARM TO BENEFICIARY AND ACCOMPLISHMENT
OF BENEFICIARY'S PURPOSE OF ASSISTING IN THE PROVISION OF AFFORDABLE
HOUSING TO ELIGIBLE BUYERS THAT REASONABLY COULD BE ANTICIPATED
AND THE ANTICIPATION THAT PROOF OF ACTUAL DAMAGES WOULD BE COSTLY
OR INCONVENIENT. THE DAMAGE AMOUNT SET FORTH IN THIS SECTION 4
SHALL BE THE SOLE DAMAGES REMEDIES FOR THE DEFAULTS SET FORTH IN
THIS SECTION 4, BUT NOTHING IN THIS SECTION 4 SHALL BE INTERPRETED TO
LIMIT BENEFICIARY'S REMEDY FOR SUCH DEFAULT TO SUCH A DAMAGES
REMEDY. IN PLACING ITS INITIAL AT THE PLACES PROVIDED HEREINBELOW,
EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS
MADE ABOVE AND THE FACT THAT EACH PARTY HAS BEEN REPRESENTED BY
COUNSEL OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY COUNSEL TO
EXPLAIN THE CONSEQUENCES OF THE LIQUIDATED DAMAGES PROVISION AT OR
PRIOR TO THE TIME EACH EXECUTED THIS AGREEMENT.
PARTICIPANT'S INITIALS: BENEFICIARY'S INITIALS:
Notwithstanding any of the above, nothing herein is intended to preclude the
Beneficiary's recovery of its attorneys' fees and costs incurred to enforce this Section.
5. Covenants Do Not Impair Lien. The Beneficiary agrees to subordinate the
provisions of the Affordable Housing Agreement, that certain Declaration of Covenants
882/015610-0061
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Conditions, and Restrictions for Property, entered into by and between Beneficiary and CP
Development La Quinta, LLC, a California limited liability company and recorded on
, as Instrument No. , in the official records of
Riverside County ("Declaration"), the Memorandum Re Option to Purchase, entered into by and
between Participant and Beneficiary and recorded concurrently herewith in the Official Records
of Riverside County, and the deed of trust to any first trust deed for the purchase of the Property
held by a reputable institutional lender ("First Lien") on the Property by recording a
subordination agreement, in a form approved by Beneficiary's legal counsel ("Subordination
Agreement").
Participant agrees it shall instruct the Escrow Agent for the acquisition of the Property by
the Participant that the order of recording in the escrow for the purchase of the Property by the
Participant shall occur as follows: 1) the Affordable Housing Agreement; 2) the Memorandum
Re Option to Purchase; 3) this Deed of Trust; 4) the First Lien; and 5) the Subordination
Agreement.
Participant shall cause a Request for Notice to be recorded on the Property subsequent to
the recordation of the First Lien deed of trust or mortgage requesting a statutory notice of default
as set forth in the California Civil Code Section 29246. Such notice shall be sent to: La Quinta
Redevelopment Agency, 78-495 Calla Tampico, La Quinta, California 92253, Attention:
Executive Director.
6. Protection of Beneficiary's Rights in the Property. If Participant fails to
perform the covenants and agreements contained in this Deed of Trust, or there is a legal
proceeding that may significantly affect Beneficiary's rights in the Property (such as a
proceeding in bankruptcy, probate, for condemnation or forfeiture or to enforce laws or
regulations), then Beneficiary may do and pay for whatever is necessary to protect the value of
the Property and Beneficiary's rights in the Property. Beneficiary's actions may include paying
any sums secured by a lien which has priority over this Deed of Trust, appearing in court, paying
reasonable attorneys' fees and entering on the Property to make repairs. Although Beneficiary
may take action under this Section 6, Beneficiary does not have to do so.
Any amount disbursed by Beneficiary under this Section 6 shall become additional debt
of Participant secured by this Deed of Trust. Unless Participant and Beneficiary agree to other
terms of payment, these amounts shall bear interest from the date of disbursement at nine percent
(9%) per annum or the maximum legal rate, whichever is less, and shall be payable, with interest,
upon notice from Beneficiary to Participant requesting payment.
[End - Signature Page Follows]
882/015610-0061
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IN WITNESS WHEREOF, Participant has executed this Rider to Deed of Trust as of
the date set forth below.
By:
Printed Name:
By:
Printed Name:
Dated:
Dated:
The foregoing Deed of Trust and Rider to Deed of Trust is approved, and consented to, by
Beneficiary.
By: LA QUINTA REDEVELOPMENT
AGENCY
Dated:
Executive Director
882/015610-0061
398353.03 a]2/15/03 -7-
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
personally
known to me (or 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.
Witness my hand and official seal.
[SEAL]
STATE OF CALIFORNIA
COUNTY OF
On
Notary Public
ss.
, before me,
Notary
Public, personally appeared
personally
known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061 _
398353.03 a12/15/03 _g
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , before me, , Notary
Public, personally appeared
personally
known to me (or 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.
Witness my hand and official seal.
Notary Public
[SEAL]
882/015610-0061
398353.03 a12/15/03 -9-
Name of Participant(s):
Property Address:
Agency Loan Amount:
BORROWER DISCLOSURE STATEMENT
Dollars ($_�
I/we ("Participant") are obtaining
financial assistance (the "Agency Loan") from the La Quinta Redevelopment Agency (the
"Agency") to assist me/us to purchase the above described property (the "Property"). I/we
understand that the Agency Loan is conditional on a number of factors, including, but not limited
to:
I/we have signed or will sign an Affordable Housing Agreement, Memorandum
Re Option to Purchase, Promissory Note Secured by Deed of Trust ("Promissory
Note"), and Deed of Trust with Assignment of Rents and Rider to Deed of Trust
Attached Hereto ("Deed of Trust") in connection with the Agency Loan. I/we
have read or had explained to us the terms and conditions of all of those
documents. I/we understand that all of those documents impose binding legal
obligations on me/us.
I/we understand that interest will accrue on the Agency Loan in the amount of
seven percent (7%) per annum, compounded annually, but that the Agency Loan
will be forgiven and the Promissory Note will be canceled forty-five years after
I/we sign the Affordable Housing Agreement unless before that time I/we sell or
otherwise transfer the Property, refinance the Promissory Note, refinance the
primary loan for the Property in a manner not permitted by the Affordable
Housing Agreement, no longer live in the Property as my/our primary residence,
or otherwise violate the Promissory Note or Affordable Housing Agreement or
the other documents we have signed in connection with the Agency Loan.
I/we understand that if I/we attempt to sell the Property to a person who does not
qualify as an affordable buyer or if I/we attempt to sell the Property at a price that
exceeds the Affordable Housing Cost such sale will be null and void, and that
I/we may be required to pay to the Agency a penalty that equals the difference
between the sale price for the Property and an "Affordable Housing Cost" (as that
term is defined in the Affordable Housing Agreement).
• I/we understand that the Promissory Note, Deed of Trust, Memorandum Re
Option to Purchase, and Affordable Housing Agreement contain an option to
purchase that may be exercised by the Agency to purchase the Property at an
Affordable Housing Cost in the following situations:
882/015610-0061
398359.01 a05/16/03 -1-
■ during the period after I/we place the place the Property for sale
and before I/we enter into an agreement to sell the Property to an
affordable buyer; or
■ upon my/our sale of the Property to a person who does not qualify
as an affordable buyer.
I/we understand that the Agency's option to purchase will remain in effect for
forty-five (45) years after I/we sign the Affordable Housing Agreement. I/we
further understand that I/we may be liable to pay damages to any noneligible
buyer to whom I/we sell the Property if the Agency exercises its option to
purchase the Property from the noneligible buyer.
• I/we must qualify for a home loan from a reputable institutional lender acceptable
to Agency.
• I/we must make a down payment of at least three percent (3%) of the home
purchase price, plus closing costs.
• I/we understand that Agency loans are available on a first come, first served basis.
• I/we must qualify as a "Moderate -Income Household" under the guidelines of the
Program.
• I/we understand that after I/we close escrow for the Property, my/our assets must
not exceed the sum of. (i) an amount equal to six (6) months of reserves for
mortgage payments, taxes, homeowner's association dues, if any, and insurance;
and (ii) $5,000.
• My/our monthly payments for housing expenses may not be less than $28% of
my/our gross income nor exceed 35% times 110% of the Riverside County
median; or, if my/our income is greater than 110% but less than 120% of the
Riverside County median, my/our monthly payments for housing expenses may
not exceed 35% of the gross income of my/our household, as more specifically
defined by Health and Safety Code Section 50052.5 and the Affordable Housing
Cost Worksheet available from Agency.
• During the term of the Affordable Housing Agreement, I/we must continuously
occupy the Property and I/we shall not rent or lease the Property.
• Agency shall not be held responsible for any costs associated with the home I/we
purchase with such assistance including, but not limited to, any loan fees or
charges, any charges for appraisals or any escrow costs or other costs relating to
the transfer of the Property.
• Agency shall not be responsible for the competitiveness of the terms of the
Agency Loan. I/we assume all responsibility for determining whether I/we will
882/015610-0061 398359.01 a05/16/03 -2-
inform myself/ourselves as to the availability and terms of other public or private
loans.
The Agency financial assistance I/we receive under the Affordable Housing
Agreement may be considered to be income for purposes of federal or state
income taxes and Agency shall not be held responsible for the payment of any
taxes which I/we may incur by virtue of the receipt of such financial assistance.
• I/We have a right to cancel or rescind the Agency Loan at any time prior to
midnight on the third business day after the Promissory Note is signed by sending
a notice in the form which is attached to this Borrower Disclosure Statement of
my/our decision to rescind or cancel the Agency Loan to:
La Quinta Redevelopment Agency
78-495 Calle Tampico
La Quinta, CA 92253
• I/We are responsible for payment of the cost of a title insurance policy insuring
the Deed of Trust to be recorded against the Property to secure Agency's right to
repayment of the Agency Loan.
• I/We are responsible for payment and deposit into escrow of $550.00 as a loan
servicing fee to be paid to Agency at the close of escrow.
• Agency cannot ensure that information provided by or on my/our behalf will be
kept confidential.
• Agency shall not be responsible for the selection of a home (except that homes
eligible for an Agency Loan shall be those approved by Agency), the selection of
a lender providing funds assisting in the purchase of the home (provided that such
lender shall be a reputable institutional lender approved by Agency), or providing
information concerning other public or private sources of loans.
• Agency shall not be charged with the knowledge of the contents of the documents
of the lender.
• All loans and funding requests must be approved by the Executive Director of
Agency. Therefore, a minimum 30 day escrow may be necessary.
By:
Printed Name:
By:
Printed Name:
Dated:
Dated:
882/015610-0061 _
398359.01 a05/16/03 -3
NOTICE OF RIGHT OF RESCISSION
(Identification of Transaction)
Notice To Customer Required By Federal Law:
You have entered into a transaction on , which may result
in a lien, mortgage or other security interest on your home. You have a legal right under federal.
law to cancel this transaction, if you desire to do so, without any penalty or obligation within
three (3) business days from the above date or any later date on which all material disclosures
required under the Truth in Lending Act have been given to you. If you so cancel the transaction,
any lien, mortgage or other security interest on your home arising from this transaction is
automatically void. You are also entitled to receive a refund of any down payment or other
consideration if you cancel. If you decide to cancel this transaction, you may do so by notifying
La Quinta Redevelopment Agency
(Name of Creditor)
at
78-495 Calle Tampico, La Quinta, CA 92253
(Address of Creditor's Place of Business)
by mail or telegram sent not later than midnight on ,
(Date)
You may also use any other form of written notice identifying the transaction if it is
delivered to the above address not later than that time. This notice may be used for that purpose
by dating and signing below.
I hereby cancel this transaction.
(Date) (Owner's Signature)
SEE NEXT PAGE FOR IMPORTANT INFORMATION ABOUT
YOUR RIGHT OF RESCISSION
882/015610-0061 _
398359.01 a05/16/03 -4
ACKNOWLEDGMENT OF RECEIPT OF TWO COPIES OF NOTICE
Each of the undersigned hereby acknowledges receipt of two completed copies of the
Notice of Right of Rescission.
(Owner's Signature)
(Date)
(Owner's Signature) (Date)
EFFECT OF RESCISSION. When a customer exercises his right to rescind he is not
liable for any finance or other charge and any security interest becomes void upon such a
rescission. Within ten (10) days after receipt of a notice of rescission, the creditor shall return to
the customer any money or property given as earnest money, down payment or otherwise, and
shall take any action necessary or appropriate to reflect the termination of any security interest
created under the transaction. If the creditor has delivered any property to the customer, the
customer may retain possession of it. Upon the performance of the creditor's obligations under
this section, the customer shall tender the property to the creditor, except that if return of the
property in kind would be impracticable or inequitable, the customer shall tender its reasonable
value. Tender shall be made at the location of the property or at the residence of the customer, at
the option of the customer. If the creditor does not take possession of the property within ten (10)
days after tender by the customer, ownership of the property vests in the customer without
obligation on his part to pay for it.
882/015610-0061
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ATTACHMENT NO. 19
AFFORDABLE HOUSING COST
"Affordable Housing Cost" for the purposes of the Affordable Housing Agreement is that
purchase price (inclusive of the proceeds of the Homebuyer Assistance) which would result in a
monthly housing cost which is not less than twenty-eight percent (28%) of the gross income of
the purchaser and does not exceed the greater of (a) the product of thirty-five percent (35%)
times one hundred ten percent (110%) of Riverside County median income adjusted for family
size appropriate for the unit for Eligible Buyers earning not more than one hundred ten percent
(110%) of Riverside County median income, or (b) the product of thirty-five percent (35%) of
the actual gross income of the household for Eligible Buyers earning more than one hundred ten
percent (110%) of Riverside County median income. The following is a worksheet of how to
calculate Affordable Housing Cost using the two methods set forth above:
A. All Moderate Income Buyers
Monthly housing costs may not exceed 1/12 of 35% x 110% of Riverside County Median
Income adjusted for family size appropriate for the unit.
For a two- bedroom housing Unit, monthly housing costs may not exceed 1/12 of 35% x
110% of Riverside County Median Income for a family of 3 (example of Median Income is
$45,900 in Riverside County pursuant to regulations issued by the California Department of
Housing and Community Development in March 2003, or $1,473).
Monthly Housing Costs include:
a.
Mortgage Principal and Interest
b.
Private Mortgage Insurance
C.
Property Taxes
d.
Fire/Casualty Insurance
e.
Property Maintenance
f.
Utilities Allowance
g. Homeowner's Association ("HOA") Fees
For example, in the following situation, for a 2 bedroom housing Unit, assuming
an 8% interest rate on a conventional loan, and assuming a down payment of at least 3% of the
purchase price and an average second trust deed loan from the Agency of $60,000, the maximum
loan amount would be $137,880 and the maximum purchase price would be $204,000 (down
payment of $6,120 + Agency Loan of $60,000 + first trust deed loan of $137,880). The
foregoing is based upon the following monthly housing costs:
882/015610-0061
380889.09 a12/17/03
a. Mortgage Principal and Interest
b. Private Mortgage Insurance (Included in
Mortgage Interest Rate)
C. Property Taxes
d. Fire/Casualty Insurance (Included in HOA)
e. Property Maintenance
f. Utilities Allowance
9.
B.
Median Income
Homeowner's Association
$1,005.00
$0.00
$203.00
$45.00
$20.00
$65.00
$120.00
TOTAL: $1,458.00
Buyer's Income is between 110% and 120% of Riverside County
Under method (b), monthly housing costs may not exceed 1/12 of 35% of the purchaser's
income, instead of the formula set forth in paragraph (a) above.
For example, if the purchaser is a three -person household earning $54,000 monthly
housing costs may not exceed $1,575. The maximum sales price would be calculated in the
same manner as in paragraph (a) above. For example, if all the other assumptions stated in that
paragraph also apply herein, the purchaser's maximum loan amount would be $149,520, and the
maximum purchase price, absent the Agency Second Trust Deed Loan would be $156,000. The
foregoing is based upon the following monthly housing costs:
a. Mortgage Principal and Interest $1,090.00
b. Private Mortgage Insurance (Included in $0.00
Mortgage Interest Rate)
C. Property Taxes $225.00
d. Fire/Casualty Insurance (Included in HOA) $50.00
e. Property Maintenance $20.00
f. Utilities Allowance $65.00
g. Homeowner's Association $120.00
TOTAL: $1,570.00
882/015610-0061
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The foregoing are intended to be examples of how to calculate affordable housing cost, and the
actual numbers will vary depending upon such factors as changes in median income, interest
rates, amount of down payment, etc.
Please see attached chart of Riverside County median income for moderate income purchasers.
882/015610-0061 _
380889.09 a12/17/03 _3
RIVERSIDE COUNTY
2003 Affordable Housing Costs for Home Purchase Programs
for Persons of Moderate Income (3)
(Income figures based on Department of Housing and Community Development Income Limits dated March, 2003)
1 Person Household
2 Person Household
3 Person Household
Median
Median
Median
Income $35,700
Income $40,800
Income $46,900
Monthly
Affordable
Monthly
Monthly
Annual
Housing
Annual
Affordable
Annual
Affordable
Income(')
Cost(2)
Income
Housing Cost
Income
Housing Cost
$42,850
$1,145
$48,950
$1,309
$55,100
$1,473
4 Person Household
5 Person Household
6 Person Household
Median
Median
Median
Income
$61,000
Income
$65,100
Income
$69,150
Monthly
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Annual
Affordable
Income
Housing Cost
Income
Housing Cost
Income
Housing Cost
$61,200
$1,636
$66,100
$1,768
$71,000
$1,898
7 Person Household
8 Person Household
Median
Median
Income
$63,250
Income
$67,300
Monthly
Monthly
Annual
Affordable
Annual
Affordable
Income
Housing Cost
Income
HousingCost
$75,900
$2,029
t $80,800
$2,159
DEFINITIONS:
Annual Income: Gross income from all sources for all members of the
household.
2. Monthly Housing Costs: Amount of mortgage payment principal and interest,
mortgage insurance, property taxes, and property insurance.
3. Moderate Income Affordable Housing Costs: Assumes affordable housing costs
computed at 35% of 110% of median income; may not be less than 28% of household's
gross income.
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ATTACHMENT NO.20
SCHEDULE OF PERFORMANCE'
[See attached individual schedules for each of the (i) Sanctuary Villas Development, (ii) Suites
Hotel and Casitas Development, (iii) Parcel 5 Residential Development and Parcel 7 Residential
Development, (iv) Medical Office/Surgical Facility, and (v) Parcel 1 Restaurant and Parcel 2
Restaurant]
1 All days are calendar days in this Schedule of Performance.
882/015610-0061
380889.09 a12/17/03
SCHEDULE OF PERFORMANCE FOR
SANCTUARY VILLAS DEVELOPMENT
(ALL PHASES OF DEVELOPMENT)
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Within 7 days after Developer and Agency approve
final draft.
2.
Developer's submission of complete Site
Within 270 days after Effective Date of DDA.
Development Permit Application "SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan*
• Tract Map*
3.
Review of SDPA by all applicable City**
Agency will use reasonable efforts to cause such
departments.
review within 21 days after Developer's submission of
SDPA.
4.
Agency response to Developer as to City
Within 7 days after receipt of final comments, but no
comments on SDPA.
later than 30 days after Developer's submission of
SDPA.
5.
Developer and City responses.
Developer will respond to any request within 7 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 7 days.
6.
Agency publishes Notice of Public Hearing
Within 10 days after City responds to Developer's
before the Planning Commission.
comments in the preceding section.
7.
Planning Commission Public Hearing and
Approximately 10 days after first publication.
consideration of SDPA and Tract Map.
8
City Council consideration of Tract Map.*
Within 21 days after Planning Commission approval
if required).
9.
City's issuance of SDPA, Tract Map (if
Within 7 days after approval by both City Council and
applicable) and conditions.
Planning Commission as applicable).
10A
Developer's preparation of final grading
Within 180 days after City's issuance of SDPA and
plans and Design Development Drawings
Tract Map (if applicable).
for Sanctuary Villas Parcel 8.
1013
Developer's preparation of final grading
Within 180 days after Developer's completion of
plans and Design Development Drawings
construction of Sanctuary Villas Parcel 8.
for Sanctuary Villas Parcel 9.
11A.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Parcel
Design Development Drawings for Parcel 8 Sanctuary
8 Sanctuary Villas Component
Villas Component.
11A.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Parcel
Design Development Drawings for Parcel 9 Sanctuary
9 Sanctuary Villas Component
Villas Component.
882/015610-0061 _
380889.09 a12/17/03 _2
Item of Performance
Time for Completion
12.
Agency review and approval, approval with
Within 30 days after Agency's receipt of applicable
conditions, or denial of Developer's
evidence of financing.
evidence of financing for Parcel 8
Sanctuary Villas Component and Parcel 9
Sanctuary Villas Component.
13A.
Developer's submission of grading permit
Within 300 days after City's issuance of the SDPA.
and building permit applications for
Sanctuary Villas Parcel 8.
13B.
Developer's submission of grading permit
Within 120 days after Developer's completion of
and building permit applications for
Parcel 8 Sanctuary Villas Component.
Sanctuary Villas Parcel 9.
12A.
City's issuance of grading permit for
Within 56 days after City's receipt of grading permit
Sanctuary Villas Parcel 8.
application for Sanctuary Villas Parcel 8.
12B.
City's issuance of grading permit for
Within 56 days after City's receipt of grading permit
Sanctuary Villas Parcel 9.
application for Sanctuary Villas Parcel 9.
13A.
City's issuance of building permit for
By the earlier of: (i) within 98 days after City's receipt
Sanctuary Villas Parcel 8.
of building permit application for Parcel 8 Sanctuary
Villas Component, which is 42 days after City's
issuance of grading permit for Sanctuary Villas Parcel
8, or ii within 660 days after Effective Date.
13B.
City's issuance of building permit for
Within 98 days after City's receipt of building permit
Sanctuary Villas Parcel 9.
application for Parcel 9 Sanctuary Villas Component,
which is 42 days after City's issuance of grading
permit for Sanctuary Villas Parcel 9.
14A.
Developer commences construction of
Within thirty (30) days after City's issuance of
Parcel 8 Sanctuary Villas Component.
building permits for the Parcel 8 Sanctuary Villas
Component.
14B.
Developer commences construction of
Within thirty (30) days after City's issuance of
Parcel 9 Sanctuary Villas Component.
building permits for the Parcel 9 Sanctuary Villas
Corn onent.
15A.
Developer's completion of Parcel 8
Within 30-36 months after City's issuance of final
Sanctuary Villas Component.
building permits for the Parcel 8 Sanctuary Villas
Component.
15B.
Developer's completion of Parcel 9
Within 30-36 months after City's issuance of final
Sanctuary Villas Component.
building permits for the Parcel 9 Sanctuary Villas
Com one.
* In the event that a master grading plan and total parcel map for the entire Property are submitted with
the SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA
for the Parcels included in this Schedule and City Council consideration shall not be required.
** Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
882/015610-0061 _
380889.09 a12/17/03 -3
OUTSIDE DATES FOR CLOSING
OPTION A
Outside Date For Closing for Sanctuary Villas Parcel 8 and Sanctuary Villas Parcel 9 365 days after
the Effective Date.
OPTION B
Parcel
Closing Milestones
Sanctuary Villas Parcel 8
Within 180 days after the Developer's completion of the foundation for the
Suites Hotel.
Sanctuary Villas Parcel 9
Within 180 days after the City's issuance of building permits for the Parcel
8 Sanctuary Villas Component.
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SCHEDULE OF PERFORMANCE FOR
SUITES HOTEL AND CASITAS DEVELOPMENT
(ALL PHASES OF DEVELOPMENT)
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Within 7 days after Developer and Agency
a rove final draft.
2.
Developer and Agency execute Early Entry
Within 7 days after the Effective Date.
Agreement.
3.
Developer makes purchase election, and
Within 7 days after the Effective Date.
Agency and Developer open the Initial Escrow
or the Property Escrow as applicable).
4.
Agency provides Developer with (i) copies of
Within 30 days after the Effective Date.
environmental studies and reports regarding
the Property and (ii) the Preliminary Title
Report.
5.
Developer submission of complete Site
Within 180 days after Effective Date.
Development Permit Application "SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan
• Tract Ma
6.
Review of SDPA by all applicable City`
Agency will use reasonable efforts to cause such
departments.
review within 21 days after Developer's submittal
receipt of SDPA.
7.
Agency response to Developer as to City
Within 7 days after Agency's receipt of City's
comments on SDPA.
final comments, but no later than 30 days after
Developer's submission of SDPA.
8.
Developer and City Responses.
Developer will respond to any request within 7
days and Agency will use reasonable efforts to
cause City to respond to any submission within 7
days.
9.
Agency publishes Notice of Public Hearing
Within 10 days after City responds to Developer's
before the Planning Commission.
comments in the preceding section.
10.
Planning Commission Public Hearing and
Approximately 10 days after first publication.
consideration of SDPA and Tract Map.
11.
City Council consideration of Tract Map.
Within 21 days after Planning Commission
approval.
Nothing herein shall be construed to limit the City's legislative authority, which City may excise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
882/015610-0061
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Item of Performance
Time for Completion
12.
City's issuance of SDPA, Tract Map and
Within 7 days after City Council approval.
conditions.
13.
Developer's preparation of final grading plans
Within 180 days after City's issuance of SDPA
and Design Development Drawings for the
and Tract Map.
Suites Hotel, all Phases of Development of the
Casitas Development, and Seeley Drive.
14.
Developer's submission of (i) evidence of
Within 20 days after Developer's completion of
financing necessary to complete the Suites
Design Development Drawings for the Suites
Hotel and the first Phase of Development of
Hotel, the first Phases of Development of the
the Casitas Development, and (iii) grading
Casitas Development, and Seeley Drive.
permit and building permit applications for the
Suites Hotel, the first Phase of Development of
the Casitas Development, and Seeley Drive.
15.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence
conditions, or denial of Developer's evidence
of financing
of financing submitted in Item No. 14.
16.
City's issuance of grading permit for the Suites
Within 56 days after City's receipt of grading
Hotel Parcel, the Parcel on which Developer
permit application for the Suites Hotel Parcel, the
shall construct the first Phase of Development
Parcel on which Developer shall construct the first
of the Casitas Development and Seeley Drive.
Phase of Development of the Casitas
Development, and Seeley Drive.
17.
Developer's completion of first pavement lift
Within (30) days after Developer's installation of
and curbs and gutters of Seeley Drive.
the foundation for the Suites Hotel.
18.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to construct the second
Design Development Drawings for the second
Phase of Development of the Casitas
Phase of Development of the Casitas
Development.
Development.
19.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence
conditions, or denial of Developer's evidence
of financing.
of financing in Item No. 18.
20.
Developer's submission of grading and
Within 120 days after Developer's completion of
building permit applications for the second
the first Phase of Development of the Casitas
Phase of Development of the Casitas
Development.
Development.
21.
City's issuance of grading permit for the
Within 56 days after City's receipt of grading
second Phase of Development of the Casitas
permit application for the second Phase of
Development.
Development of the Casitas Development.
22.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to construct the third
Design Development Drawings for the second
Phase of Development.
Phase of Development of the Casitas
Development.
23.
Agency review and approval, approval with
Within 30 days after Agency's receipt of evidence
conditions, or denial of Developer's evidence
of financing.
of financing in Item No. 22.
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Item of Performance
Time for Completion
24.
Developer's submission of grading and
Within 120 days after Developer's completion of
building permit applications for the third Phase
the second Phase of Development of the Casitas
of Development of the Casitas Development.
Development.
25.
City's issuance of grading permit for the third
Within 56 days after City's receipt of grading
Phase of Development of the Casitas
permit application for the third Phase of
Development.
Development of the Casitas Development.
26.
City's issuance of building permits for the
Within 98 days after City's receipt of building
Suites Hotel, the first Phase of Development of
permit application for the Suites Hotel, the first
the Casitas Development, and Seeley Drive.
Phase of Development of the Casitas
Development, and Seeley Drive, which is 42 days
after City's issuance of grading permit for the
Suites Hotel, the first Phase of Development of
the Casitas Development, and Seeley Drive.
27.
Developer commences construction of Suites
Within 30 days after Developer's receipt of
Hotel and first Phase of Development of the
building permits for the Suites Hotel and first
Casitas Development.
Phase of Development of the Casitas
Development.
28.
City's issuance of building permits for the
Within 98 days after City's receipt of building
second Phase of Development of the Casitas
permit application for the second Phase of
Development
Development of the Casitas Development, which
is 42 days after City's issuance of grading permit
for the second Phase of Development of the
Casitas Development
29.
Developer commences construction of second
Within 30 days after Developer's receipt of
Phase of Development of the Casitas
building permits for the second Phase of
Development.
Development of the Casitas Development.
30.
City's issuance of building permits for the
Within 98 days after City's receipt of building
third Phase of Development of the Casitas
permit application for the third Phase of
Development
Development of the Casitas Development, which
is 42 days after City's issuance of grading permit
for the third Phase of Development of the Casitas
Development
31.
Developer commences construction of third
Within 30 days after Developer's receipt of
Phase of Development of the Casitas
building permits for the third Phase of
Development.
Develo ment of the Casitas Development.
32.
Completion of Suites Hotel.
Within 18 months after City's issuance of
building ermits for Suites Hotel.
33.
Developer completes final pavement lift of
Within one hundred eighty (180) days after
Seeley Drive.
Developer's completion of the Suites Hotel.
34.
Completion of first Phase of Casitas
Within 30-36 months after City's issuance of
Development.
building permits for first Phase of Development of
the Casitas Development.
35.
Completion of second Phase of Casitas
Within 30-36 months after City's issuance of
Development.
building permits for second Phase of
Develo ment of the Casitas Development.
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Item of Performance
Time for Completion
36.
Completion of third Phase of Casitas
Within 30-36 months after City's issuance of
Development.
building permits for third Phase of Development
of the Casitas Development.
Outside Date for Closing for Suites Hotel Parcel, Casitas Parcel 2, Casitas Parcel 3, Casitas Parcel 4,
Landscape Parcel C, Landscape Parcel E, and the Seeley Drive Parcel (under Option A or Option B): 365
days after the Effective Date.
882/015610-0061
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SCHEDULE OF PERFORMANCE
FOR PARCEL 5 RESIDENTIAL DEVELOPMENT
AND PARCEL 7 RESIDENTIAL DEVELOPMENT
Item of Performance
Time of Completion
1.
Developer's execution of the DDA.
Within 7 days after Developer and Agency approve
final draft.
2.
Developer's submission of (i) evidence of
Within 180 days after Effective Date.
financing necessary to complete the Parcel 5
Residential Development and the Parcel 7
Residential Development, and (ii) complete
Site Development Permit Application
"SDPA",
including:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan
• Tentative Tract Ma
3.
Review of SDPA by all applicable City*
Agency will use reasonable efforts to cause such
departments.
review within 21 days after Developer's submission
of SDPA.
4.
Agency response to Developer as to City
Within 7 days after receipt of final comments, but no
comments on SDPA.
later than 30 days after Developer's submission of
SDPA.
5.
Developer and City Responses.
Developer will respond to any request within 7 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 7 days.
6.
Agency publishes Notice of Public Hearing
Within 10 days after City responds to Developer's
before the Planning Commission.
comments in the preceding Section.
7.
Planning Commission public hearing and
Approximately 10 days after first publication.
consideration of SDPA and Tentative Tract
Map.
8.
City Council consideration of Tentative
Within 21 days after Planning Commission approval.
Tract Map.
9.
City's issuance of SDPA, Tentative Tract
Within 7 days after City Council approval.
Map and conditions of approval.
10.
Preparation of Grading Plans and Design
By the earlier of: (i) within 180 days after City's
Development Drawings for the Parcel 5
issuance of SDPA and Tentative Tract Map, or (ii)
Residential Development and the Parcel 7
within 452 days after Effective Date.
Residential Development.
11.
Developer's submission of grading permit
Within 20 days after Developer's completion of
and building permit application for
Design Development Drawings.
backbone infrastructure for the Parcel 5
Residential Development and the Parcel 7
Residential Development.
882/015610-0061
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Item of Performance
Time of Completion
12.
City's issuance of Grading Permit for the
Within 56 days after City's receipt of grading permit
Parcel 5 Residential Development and the
application.
Parcel 7 Residential Development.
13
City's issuance of building permit for
Within 98 days after City's receipt of Building Permit
backbone infrastructure for the Parcel 5
application, which is 42 days after City's issuance of
Residential Development and the Parcel 7
Grading Permit.
Residential Development.
14.
Developer's commencement of construction
Within 30 days following City's issuance of Building
of backbone infrastructure of the Parcel 5
Permits.
Residential Development and the Parcel 7
Residential Development.
15
Within 90 days after the earlier of: (1) Developer's
Developer's commencement of Construction
commencement of construction of backbone
of the Parcel 5 Residential Development and
infrastructure and (2) Developer's completion of
the Parcel 7 Residential Development.
exterior walls and roof for the Suites Hotel.
16
Developer's completion of construction of
Within 18 months following City's issuance of
the Parcel 5 Residential Development and
Building Permits for the Parcel 5 Residential
the Parcel 7 Residential Development.
Development and the Parcel 7 Residential
Development.
*Nothing herein shall be construed to limit City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
OUTSIDE DATES FOR CLOSING
OPTION A
Outside Date For Closing for Residential Parcel 5 and Residential Parcel 7: 365 days after the
Effective Date.
OPTION B
Outside Date For Closing for Residential Parcel 5 and Residential Parcel 7: 30 days after the
Developer's completion of the exterior walls and roof of the Suites Hotel.
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SCHEDULE OF PERFORMANCE FOR
MEDICAL OFFICE/SURGICAL FACILITY
(ALL PHASES OF DEVELOPMENT)
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Within 7 days after Developer and Agency approve
final draft.
2AB.
Developer's submission of complete Site
Within 270 days after Effective Date.
Development Permit Application for the
Parcel A Medical Office/Surgical Facility
Component and for the first and second
Phases of Development of the Medical
Office/Surgical Facility, "First/Second
MOB SDPA", which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan*
• Tract Map*
2C.
Developer's submission of complete Site
Within 90 days after City's issuance of building
Development Permit Application for the
permits for the first and second Phases of
third Phase of Development of the
Development of the Medical Office/Surgical
Medical Office/Surgical Facility, "Third
Facility.
MOB SDPA," which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan*
• Tract Map*
3A.
Review of First/Second MOB SDPA by
Agency will use reasonable efforts to cause such
all applicable City** departments.
review within 21 days after Developer's submittal of
First/Second MOB SDPA.
3B.
Review of Third MOB SDPA by all
Agency will use reasonable efforts to cause such
applicable City departments.
review within 21 days after Developer's submittal of
Third MOB SDPA.
4A.
Agency response to Developer as to City
Within 7 days after Agency's receipt of City's final
comments on First/Second MOB SDPA.
comments, but no later than 30 days after
Developer's submission of First/Second MOB
SDPA.
4B.
Agency response to Developer as to City
Within 7 days after Agency's receipt of City's final
comments on Third MOB SDPA.
comments, but no later than 30 days after
Developer's submission of Third MOB SDPA.
882/015610-0061 -1 1-
380889.09 a12/17/03
Item of Performance
Time for Completion
5.
Developer and City Responses.
Developer will respond to any request within 7 days
and Agency will use reasonable efforts to cause City
to respond to any submission within 7 days.
6A.
Agency publishes Notice of Public
Within 10 days after City responds to Developer's
Hearing for the First/Second MOB SDPA
comments regarding the First/Second MOB SDPA.
before the Planning Commission.
6B.
Agency publishes Notice of Public
Within 10 days after City responds to Developer's
Hearing for the Third MOB SDPA before
comments regarding the Third MOB SDPA.
the Planning Commission.
7A.
Planning Commission Public Hearing and
Approximately 10 days after first publication of
consideration of First/Second MOB
notice of the same.
SDPA and Tract Map.
7B.
Planning Commission Public Hearing and
Approximately 10 days after first publication of
consideration of Third MOB SDPA and
notice of the same.
Tract Map.
8A.
City Council consideration of Tract
Within 21 days after Planning Commission approval
Map.*
of First/Second MOB SDPA.
8B.
City Council consideration of Tract
Within 21 days after Planning Commission approval
Map.*
of Third MOB SDPA.
9A.
City's Issuance of First/Second MOB
Within 7 days after approval of First/Second MOB
SDPA Tract Map, if applicable.
SDPA by both Planning Commission and City
Council.
9B.
City's Issuance of Third MOB SDPA
Within 7 days after approval of Third MOB SDPA
Tract Map, if applicable.
by both PI ning Commission and City Council.
10A.
Developer's preparation of final grading
Within 180 days after City's issuance of
plans and Design Development Drawings
First/Second MOB SDPA and Tract Map (if
for the Parcel A Medical Office/Surgical
applicable).
Facility Component and the first and
second Phases of Development of the
Medical Office/Surgical Facility.
10B.
Developer's preparation of final grading
Within 180 days after City's issuance of Third MOB
plans and Design Development Drawings
SDPA and Tract Map (if applicable).
for the third Phase of Development of the
Medical Office/Surgical Facility.
1 IA.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the
Design Development Drawings for the Parcel A
Parcel A Medical Office/Surgical Facility
Medical Office/Surgical Facility Component and the
Component and the first and second
first and second Phases of Development of the
Phases of Development of the Medical
Medical Office/Surgical Facility.
Office/Surgical Facility and of grading
permit and building permit applications
for the Parcel A Medical Office/Surgical
Facility Component and the first and
second Phases of Development of the
Medical Office/Surgical Facility.
882/015610-0061 -12-
380889.09 a]2/17/03
Item of Performance
Time for Completion
11B.
Developer's submission of evidence of
Within 20 days after Developer's completion of
financing necessary to complete the third
Design Development Drawings for the third Phase of
Phase of Development of the Medical
Development of the Medical Office/Surgical
Office/Surgical Facility and of grading
Facility.
permit and building permit applications
for the third Phase of Development of the
Medical Office/Surgical Facility.
12A.
Agency's review and approval, approval
Within 30 days after Agency's receipt of the same.
with conditions or denial of Developer's
evidence of financing submittal in Item
11 A.
12B.
Agency's review and approval, approval
Within 30 days after Agency's receipt of the same.
with conditions or denial of Developer's
evidence of financing submittal in Item
1113.
13A.
City's issuance of grading permit for the
The later of (i) within 56 days after City's receipt of
Parcel A Medical Office/Surgical Facility
building permit application for first Phase of
Component and first Phase of
Development of the Medical Office/Surgical Facility
Development of the Medical
or (ii) upon Developer's completion of foundation
Office/Surgical Facility.
for Suites Hotel.
13B.
City's issuance of grading permit for
The later of (i) within 56 days after City's receipt of
second Phase of Development of the
building permit application for the second Phase of
Medical Office/Surgical Facility.
Development of the Medical Office/Surgical Facility
or (ii) upon Developer's completion of framing of
exterior walls of the Suites Hotel.
13C.
City's issuance of grading permit for the
The later of (i) within 56 days after City's receipt of
third Phase of Development of the
building permit application for the third Phase of
Medical Office/Surgical Facility.
Development of the Medical Office/Surgical Facility
or (ii) upon Developer's completion of exterior walls
and roof for the Suites Hotel.
14A.
City's issuance of building permit for
By the earlier of: (i) within 98 days after City's
Parcel A Medical Office/Surgical Facility
receipt of building permit application for the first
and first Phase of Development of the
Phase of Development of the Medical
Medical Office/Surgical Facility.
Office/Surgical Facility, which is 42 days after
issuance of grading permit for the first Phase of
Development of the Medical Office/Surgical
Facility, or (ii) within 660 days after Effective Date.
14B.
City's issuance of building permit for
Within 98 days after City's receipt of building
second Phase of Development of the
permit application for the second Phase of
Medical Office/Surgical Facility.
Development of the Medical Office/Surgical
Facility, which is 42 days after issuance of grading
permit for the second Phase of Development of the
Medical Office/Surgical Facility.
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380889.09 a12/17/03 -13 -
Item of Performance
Time for Completion
14C.
City's issuance of building permit for
Within 98 days after City's receipt of building
third Phase of Development of the
permit application for the third Phase of
Medical Office/Surgical Facility.
Development of the Medical Office/Surgical
Facility, which is 42 days after issuance of grading
permit for the third Phase of Development of the
Medical Office/Surgical Facility.
15A.
Developer commences construction of
With thirty (30) days after City's issuance of
Parcel A Medical Office/Surgical Facility
building permits for the first Phase of Development
and first Phase of Development of the
of the Medical Office/Surgical Facility.
Medical Office/Surgical Facility.
15B.
Developer commences construction of
With thirty (30) days after City's issuance of
second Phase of Development of the
building permits for the second Phase of
Medical Office/Surgical Facility.
Development of the Medical Office/Surgical
Facility.
15C.
Developer commences construction of
With thirty (30) days after City's issuance of
third Phase of Development of the
building permits for the third Phase of Development
Medical Office/Surgical Facility.
of the Medical Office/Surgical Facility.
16A.
Developer's completion of Parcel A
Within 30-36 months after City's issuance of
Medical Office/Surgical Facility and the
building permits for Parcel A Medical
first Phase of Development of the Medical
Office/Surgical Facility Component and the first
Office/Surgical Facility.
Phase of Development of the Medical
Office/Sur ical Facility.
16B.
Developer's completion of second Phase
Within 30-36 months after City's issuance of
of Development of the Medical
building permit for second Phase of Development of
Office/Surgical Facility.
the Medical Office/Surgical Facility Component.
16C.
Developer's completion of third Phase of
Within 30-36 months after City's issuance of
Development of the Medical
building permit for third Phase of Development of
Office/Surgical Facility.
the Medical Office/Surgical Facility Component.
* In the event that a master grading plan and total parcel map for the entire Property are submitted with the
SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA for any of
the Parcels included in this Schedule and City Council consideration shall not required.
** Nothing herein shall be construed to limit City's legislative authority, which City may exercise, in City's sole
and absolute discretion. In all cases where City action is required, Agency shall use reasonable efforts to cause
City to take such action in the time prescribed herein.
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OUTSIDE DATES FOR CLOSING
OPTION A
Outside Date for Closing for Medical Office/Surgical Facility Parcel A, Medical Office/Surgical Facility
Parcel 10, Medical Office/Surgical Facility Parcel 11, and Medical Office/Surgical Facility Parcel 12:
365 days after the Effective Date.
OPTION B
Parcel
Outside Date for Closing
Medical Office/Surgical Facility Parcel A
Within 90 days after the Developer's completion of
and one of (i) Medical Office/Surgical Facility
the foundation for the Suites Hotel.
Parcel 10, (ii) Medical Office/Surgical Facility
Parcel 11, or (iii) Medical Office/Surgical
Facility Parcel 12
One of (i) Medical Office/Surgical Facility
Within 90 days after the Developer's completion of
Parcel 10, (ii) Medical Office/Surgical Facility
framing of all exterior walls of the Suites Hotel.
Parcel 11, or (iii) Medical Office/Surgical
Facility Parcel 12
The final unpurchased Parcel of the (i) Medical
Within 90 days after the Developer's completion of
Office/Surgical Facility Parcel 10, (ii) Medical
the exterior walls and roof of the Suites Hotel.
Office/Surgical Facility Parcel 11, and (iii)
Medical Office/Surgical Facility Parcel 12
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SCHEDULE OF PERFORMANCE FOR
PARCEL 1 RESTAURANT AND PARCEL 13 RESTAURANT
Item of Performance
Time for Completion
1.
Developer execution of DDA.
Within 7 days after Developer and Agency
approve final draft.
2A.
Developer's submission of complete Site
Within 180 days after Effective Date.
Development Permit Application for
Restaurant Parcel 1 "Parcel 1 SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan*
• Tract Map*
2B.
Developer's submission of complete Site
Within 180 days after City's issuance of building
Development Permit Application for
permits for Restaurant Parcel 1.
Restaurant Parcel 13 "Parcel 13 SDPA",
which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
• Master Grading Plan*
• Tract Map*
3A.
Review of Parcel 1 SDPA by all
Agency will use reasonable efforts to cause such
applicable City** departments.
review within 21 days after Developer's submittal
of Parcel 1 SDPA.
3B.
Review of Parcel 13 SDPA by all
Agency will use reasonable efforts to cause such
applicable City departments.
review within 21 days after Developer's submittal
of Parcel 13 SDPA.
4A.
Agency response to Developer as to City
Within 7 days after Agency's receipt of City's
comments on Parcel 1 SDPA.
final comments on application, but no later than
30 days after Developer's submission of Parcel 1
SDPA.
4B.
Agency response to Developer as to City
Within 7 days after Agency's receipt of City's
comments on Parcel 13 SDPA.
final comments on application, but no later than
30 days after Developer's submission of Parcel 13
SDPA.
5.
Developer and City Responses.
Developer will respond to any request within 7
days and Agency will use reasonable efforts to
cause City to respond to any submission within 7
days.
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Item of Performance
Time for Completion
6A.
Agency publishes Notice of Public
Within 10 days after City responds to Developer's
Hearing for the Parcel 1 SDPA before the
comments regarding the Parcel 1 SDPA.
Planning Commission.
6B.
Agency publishes Notice of Public
Within 10 days after City responds to Developer's
Hearing for the Parcel 13 SDPA before
comments regarding the Parcel 13 SDPA.
the Planning Commission.
7A.
Planning Commission's Public Hearing
Approximately 10 days after first publication of
and consideration of Parcel I SDPA and
notice of the same.
Tract Map.
7B
Planning Commission's Public Hearing
Approximately 10 days after first publication of
and consideration of Parcel 13 SDPA and
notice of the same.
Tract Map.
8A.
City Council's consideration of Tract Map
Within 21 days after Planning Commission
for Parcel 1.*
a roval of the Parcel 1 SDPA.
8B.
City Council's consideration of Tract Map
Within 21 days after Planning Commission
for Parcel 13.*
approval of the Parcel 13 SDPA.
9A.
City's issuance of Parcel I SDPA and
Within 7 days after approval of Parcel 1 SDPA
Tract Map and conditions.
and Tract Map by both Planning Commission and
Ci Council.
9B.
City's issuance of Parcel 13 SDPA and
Within 7 days after approval of Parcel 13 SDPA
Tract Map and conditions.
and Tract Map by both Planning Commission and
City Council.
10A.
Developer's preparation of final grading
Within 180 days after City issues Parcel 1 SDPA,
plan and Design Development Drawings
Tract Map, and conditions.
for Restaurant Parcel 1.
IOB.
Developer's preparation of final grading
Within 180 days after City issues Parcel 13
plan and Design Development Drawings
SDPA, Tract Map, and conditions.
for Restaurant Parcel 13.
1 IA.
Developer's submission of (i) evidence of
Within 20 days after Developer's completion of
financing necessary to complete Parcel 1
Design Development Drawings for the Parcel I
Restaurant, and (ii) grading and building
Restaurant.
permit applications for Restaurant Parcel
1.
I IB.
Developer's submission of (i) evidence of
Within 20 days after Developer's completion of
financing necessary to complete Parcel 1
Design Development Drawings for the Parcel 13
Restaurant, and (ii) grading and building
Restaurant.
permit applications for Restaurant Parcel
13.
11C.
Developer's submission of grading and
Within 20 days after Developer's completion of
building permit applications for
the Parcel I Restaurant.
Restaurant Parcel 13.
12A.
City's issuance of grading permit for
Within 56 days after City's receipt of building
Restaurant Parcel 1.
ermit a lication for Restaurant Parcel 1.
12B.
City's issuance of grading permit for
Within 56 days after City's receipt of building
Restaurant Parcel 13.
1 permit application for Restaurant Parcel 13.
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Item of Performance
Time for Completion
13A.
City's issuance of building permit for
Within 98 days after receipt of building permit
Parcel 1 Restaurant.
application for Parcel 1 Restaurant, which is 42
days after City's issuance of grading permit for
Restaurant Parcel 1.
13B.
City's issuance of building permit for
By the earlier of (i) within 98 days after receipt of
Parcel 13 Restaurant.
building permit application for Parcel 13
Restaurant, which is 42 days after City's issuance
of grading permit for Restaurant Parcel 13, or (ii)
within 570 days after Effective Date.
14A.
Developer commences construction of
Within thirty (30) days after City's issuance of
Parcel 1 Restaurant.
building permits for Parcel 1 Restaurant.
14B.
Developer commences construction of
Within thirty (30) days after City's issuance of
Parcel 13 Restaurant.
building permits for Parcel 13 Restaurant.
15A.
Completion of Parcel 1 Restaurant.
Within 30-36 months after City's issuance of
building ermits for Parcel 1 Restaurant.
15B.
Completion of Parcel 13 Restaurant.
Within 30-36 months after City's issuance of
building permits for the Parcel 13 Restaurant.
* In the event that a master grading plan and total parcel map for the entire Property are submitted with
the SDPA for the Suites Hotel, then no further master grading plan or tract map is required for the SDPA
for any of the Parcels included in this Schedule, and City Council consideration shall not be required.
** Nothing herein shall be construed to limit the City's legislative authority, which City may exercise, in
City's sole and absolute discretion. In all cases where City action is required, Agency shall use
reasonable efforts to cause City to take such action in the time prescribed herein.
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OUTSIDE DATES FOR CLOSING
OPTIONA
Outside Closing Date for Closing for Restaurant Parcel 1 and Restaurant Parcel 13: 365 days
after the Effective Date.
OPTION B
Parcel Closing Milestones
Restaurant Parcel 1 Within 90 days after the Developer's completion
of the foundation for the Suites Hotel.
Restaurant Parcel 13 Within 90 days after the City's issuance of
building hermits for Parcel 13 Restaurant.
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