2003-12-18 Centre Pointe - Early Entry Agreement (120 Days) - CP Development, LLCEARLY ENTRY AGREEMENT
This Early Entry Agreement ("Agreement") is entered into as of Qe , t $ , 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 exesuted and entered into that certain Development
2003,
Agreement, with a Reference Date of bc�1r- ("Development pment
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
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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
882/015610-0061
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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.
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(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 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 Attorneys 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.
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
882/015610-0061
460803.01 a12/17/03 4
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
882/015610-0061 _
460803.01 a12/17/03 -5
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]
882/015610-0061
460803.01 a12/17/03 6
Dec-17-03 11:40am From-RUTAN & TUCKER LLP 714-546-9035 T-293 P.17/17 F-582
IN WITNESS WHFUO]F, this Agreement has been executed by the parties hereto as of
the date first above -written.
"DEVELOPER"
CP DEVELOPMENT LA QUINTA, LLC
a Califonda limited liability company
By: Oliphant Family Trust
Its: Member
By: f)-tsj a. ( v
Richard R. Oliphant
its: Trustee
By. Oliphant Enterprises, Inc.
Its: Manager 0-
By: -
Richard R. Oliphant
its: President
"CITY"
CI A QUINT
City Mannga j
G!�
682,101.ibLOA I -7-
4Do9U3 01 a1247/W
EXHIBIT "A"
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 USE *LOT 'H'
23483 ..1.
LOT 1 RESTAURANT 0'54 O0
LOT 2 - RESORT CASITAS *LOT •0•
14030 s./.
0.34 «.
LOT 3 - RESORT CASITAS LOT 1
40188 0.
LOT 4 - RESORT CASITAS 0.92 se.
LOT b - RESIDENTIAL
*LOT e - PARK
LOT 7 RESIDENTIAL *LOT 'C•
14297 s.f.
LOT 8 THE SANCTUARY 0.33 «.
LOT 9 THE SANCTUARY��
LOT 10 ` MEDICAL OFFICE BUILDINGS CA�
LOT 11 - MEDICAL OFFICE BUILDINGS N
LOT 12 - MEDICAL OFFICE BUILDINGS
LOT 13 - RESTAURANT
LOT 14 HOTEL *LOT 'E
54M s.f
0.13 m.
COMMON LOTS LAND USE.
LOT 'A- - - - - - - - MEDICAL OFFICE PARKING / LANDSCAPE
LOT 'B' - - - - - - SEELEY DRIVE
* LOT •C' - - - - - - - 20' PARKWAY (WASHINGTON STREET)
* LOT •D' - - - - CITY LANDSCAPE ENTRY
*LOT 'E' ' - - - - - 20' PARKWAY (WASHINGTON STREET)
LOT •F- - - - - - - - WELLSITE
* LOT 'G' - - - - - - - WELLSITE (N.A.P.)
* LOT 'H' - ' ' ' - ' - 20' PARKWAY (MILES AVENUE)
* LOT 'I - - - - - - - 20' PARKWAY (MILES AVENUE)
LOT 14
14504 s.f.
3.35 oc
LOT 13
48613 s./.
'1.12 cr- LOT •A•
7f1oc. LOT 12
6.431W5 9.f
0.73 «.
31556T5 .J' LOT 11
0.73 «. Su130 «a1.
LOT 'A`
OT 'F•
22641 ..f.
0.52 «.
LOT 9
40M CC
1.10 W.
* 'Best panels are not being conveyed by
the Ls Qninta Rodevelopmmt Agency.
They are depicted 0n this Site Map fbr
convenience Of 1'eferw= Orly.
* LOT •1'
5460 s f.
MILES AVENUE 0.12 «.
LOT 3
142672 &J.
3.44 «.
LOT 2
25934 s.f.
2.27 «.
LOT 4
126828 ../.
2.91 «.
* LOT 'G'
225002 «. ..f.
0.5
LOT B
95591 a1.
2.19 x
* LOT «.e
116798 s.l.
Z.68
LOT 7
391%6 0.
6.99 «.
J
J
C
OU
u
aJ
a 6
U
tj
44
3l
��
LOT 8
163122
3.74s a
�11111
N.T.S.
NOVEMBER 21. 2003