2005 Centre Pointe - Disposition and DA Amendment 3 - CP Development, LLCAMENDMENT NO.3 TO DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AMENDMENT NO. 3 TO DISPOSITION AND DEVELOPMENT
AGREEMENT ("Amendment No. 3") is made and entered into as of Ald Y, -�
2005 by and between LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate
and politic ("Agency"), and CP DEVELOPMENT LA QUINTA, LLC, a California limited
liability company ("Developer").
RECITALS:
A. On or about December 18, 2003, the Agency and Developer entered into that
certain Disposition and Development Agreement (the "Original DDA"), pursuant to which
Agency agreed to sell to Developer, and Developer agreed to purchase from Agency that certain
real property located southeast of the Miles Avenue and Washington Street intersection in the
City of La Quinta, California 92253 (the "Property") 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 (collectively, the "Project").
B. On or about October 28, 2004, Agency and Developer entered into that certain
Amendment No. 1 to Disposition and Development Agreement ("Amendment No. 1") which
amended the Original DDA to revise (i) certain timeframes in the schedule of performance
attached to the Original DDA; (ii) certain conditions that had to be satisfied prior to the Agency's
conveyance to Developer of the Property; and (iii) the transfer and assignment provisions.
C. On or about December 7, 2004, Agency and Developer entered into that certain
Amendment No. 2 to Disposition and Development Agreement ("Amendment No. 2") which
amended the Original DDA, as amended by Amendment No. 1, to provide for the Agency's
agreement to subordinate Repurchase Option I in the same manner, and subject to the same terms
and conditions, as the Agency had agreed to subordinate Repurchase Option III in order to
accommodate Developer's acquisition and development lender. Concurrently with the parties'
execution of Amendment No. 2, Agency conveyed to Developer the Property. The Original
DDA, as modified by Amendment No. 1 and Amendment No. 2, is hereinafter referred to as the
"DDA."
D. On or about April 4, 2005, Parcel Map No. 31116, in the City of La Quinta, was
filed in the Official Records of the County of Riverside in Book 212 of Parcel Maps at pages 60-
66, inclusive (the "Parcel Map"). The Parcel Map created legal parcels within the Property that
differ from the parcels depicted on the Site Map attached to the DDA. In particular: (i) the
Parcel Map created one legal parcel for development thereon of the Casitas Development
(identified thereon as "Parcel 2"), where the Site Map had depicted the Casitas Development on
three parcels; (ii) the Parcel Map created one legal parcel for development thereon of the
Sanctuary Villas (identified thereon as "Parcel 7"), where the Site Map had depicted the
Sanctuary Villas on two parcels; and (iii) the Parcel Map created one legal parcel for
882/015610-0085
617012.07 a10/28/05 -1-
development thereon of the Medical Office/Surgical Facility (identified thereon as "Parcel 6"),
where the Site Map had depicted the Medical Office/Surgical Facility on four parcels. The
Parcel Map also created "Parcel 1" and "Parcel 5" for development thereon of the two
restaurants to be constructed as part of the Project, "Parcel 3" and "Parcel 8" for the
development thereon of two residential developments to be constructed as part of the Project,
"Parcel 4" for the development thereon of the Suites Hotel, and "Parcel 9" for development
thereon of a public park Developer agreed to develop pursuant to that certain Development
Agreement entered into by the City and the Developer on or about December 18, 2003, and
recorded in the Official Records of the County of Riverside on January 5, 2004, as Instrument
No. 2004-0005256, as amended by that certain Amendment No. 1 to Development Agreement,
executed on or about October 28, 2004, and recorded in the Official Records of the County of
Riverside on November 8, 2004, as Instrument No. 2004-0885063 (the "Development
Agreement"). A copy of the Parcel Map is attached hereto and incorporated herein as Exhibit
"A". All subsequent references herein to a "Parcel" shall mean a parcel that has been created on
the Parcel Map.
E. Concurrently with the preparation and processing through the City hereof,
Developer has prepared and is processing through the City (i) an amendment to the Center Point
Specific Plan, also known as Specific Plan No. SP2001-055, as previously amended by City
Council Resolution No. 2003-035, on June 3, 2003, to modify the uses permitted on certain
portions of the Property (the "Specific Plan Amendment'), and (ii) an amendment to the
Development Agreement, to modify the description of the Project and certain obligations of the
Developer set forth therein (the "Development Agreement Amendment').
F. The parties now wish to amend the DDA to (i) modify certain components of the
Project, and (ii) revise the timeframe for completion of the Suites Hotel in the Schedule of
Performance, in accordance with the terms and conditions of this Amendment No. 3. The parties
contemplate that the City Council will consider the Specific Plan Amendment and the
Development Agreement Amendment concurrently with its consideration of this Amendment
No. 3. Unless defined herein to the contrary, all capitalized terms in this Amendment No. 3 shall
have the meanings ascribed in the DDA.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated
herein by this reference, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. The DDA is hereby amended as follows:
1.1 To revise the description of the Project to mean a commercial development
consisting of a medical office/surgical facility (the "Medical Office/Surgical Facility")
containing no more than 195,000 square feet; a mid -price suites hotel containing one hundred
thirty-three (133) guest rooms (the "Suites Hotel'); a resort -style condominium/casitas project
containing approximately one hundred sixty four (164) condominium/casitas units (the "Casitas
892/015610-0085 _
617012.07 a10/28/05 -Z
Development"); two (2) sit-down restaurants (the "Restaurants"); and a residential
development containing up to sixty (60) single-family homes (the "Residential Development"),
forty (40) of which shall be restricted for sale to Eligible Buyers at an Affordable Housing Cost
(the "Affordable Housing Component"), and to make other conforming changes to the
definitions in the DDA to make them consistent herewith and with the Parcels depicted on the
Parcel Map, as described in Recital D.
1.2 To delete all of the references to the Parcel 5 Residential Development and the
Sanctuary Villas. The parties hereby agree that the Parcel 5 Residential Development and the
Sanctuary Villas are no longer components of the Project.
1.3 To provide that the Casitas Development will be constructed on Parcel 2 and
Parcel 3. Developer acknowledges that it has transferred and assigned, or intends to transfer and
assign, the rights and obligations under the DDA to develop the Casitas Development to Lennar
Homes of California, Inc., a California corporation ("Lennar") and that Lennar intends to
prepare a new tract map (the "New Tract Map") that merges Parcel 2 with Parcel 3.
1.4 To provide that the Medical Office/Surgical Facility will be constructed on Parcel
6 and Parcel 7. Developer intends to prepare a lot line adjustment that merges Parcel 6 with
Parcel 7, and transfers a portion of Parcel 7 to Parcel 8 (the Lot Line Adjustment"). The
Developer contemplates that the new Parcel created by merging Parcel 6 with Parcel 7 will
consist of approximately 13.63 acres, and that Parcel 8 will, after the Lot Line Adjustment,
consist of approximately 9.45 acres. Within thirty (30) days after the later of (i) the date the Lot
Line Adjustment has been processed, or (ii) the date the New Tract Map has been approved by
the La Quinta City Council, the Developer's engineers shall prepare and submit to the Agency a
new site map (the "New Site Map") that reflects the changes effected by the New Tract Map and
the Lot Line Adjustment. Upon confirmation by the Agency that the New Site Map accurately
reflects said changes, the New Site Map shall automatically replace the Site Map currently
attached to the DDA.
1.5 To replace Section 201.1 with the following:
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):
882/015610-0085
617012.07 a10/28/05 -3-
(a) The First Permitted Phase of Construction. Upon
Developer's acquisition of the Property, Developer may construct only the Suites
Hotel, the Casitas Development, the Restaurants, 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) one of the buildings that
comprise the Medical Office/Surgical Facility, containing not more than 75,000
square feet, and (b) twenty (20) of the Affordable Homes on Parcel 8 (the
"Second Permitted Phase of Construction"). Notwithstanding anything herein
to the contrary, Developer shall construct on Parcel 6 and/or Parcel 7 not less than
one (1) parking space for each 250 square feet of the Medical Office/Surgical
Facility to be developed thereon, 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 Parcel 8, and (ii) one of the
buildings that comprise the Medical Office/Surgical Facility, containing no more
than 80,000 square feet (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 final building that comprises the Medical
Office/Surgical Facility, containing no more than 40,000 square feet, and (ii) the
Unrestricted Homes on Parcel 8.
1.6 To replace the Scope of Development, attached to the DDA as Attachment No. 8,
with the Scope of Development attached hereto and incorporated herein as Exhibit `B".
1.7 To replace the Time for Completion in item 20 of the Schedule of Performance
for Suites Hotel (Completion of Suites Hotel) with the following: "Before December 31, 2006,
subject to the provisions of Section 702 of the DDA."
882/015610-0085
617012.07 a10/28/05 _4_
2. Developer is in the process of preparing a new site plan for the Residential Development
(the "New Residential Site Plan"). Upon City's approval of the New Residential Site Plan, the
Residential Parcel 7 Site Map that is attached to the DDA as Attachment No. 7 will be
automatically replaced with the New Residential Site Plan.
3. Except as otherwise expressly provided in this Amendment No. 3, all of the terms and
conditions of the DDA shall remain in full force and effect.
4. This Amendment No. 3 shall not be effective unless and until the City Council has
approved the Specific Plan Amendment and the Development Agreement Amendment, and the
Developer and City have executed the Development Agreement Amendment.
5. In the event of any action between Agency and Developer seeking enforcement of any of
the terms and conditions to this Amendment No. 3, the prevailing party in such action shall be
awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses,
including without limitation its expert witness fees and reasonable attorney's fees.
6. This Amendment No. 3 shall be construed according to its fair meaning and as if
prepared by both parties hereto.
7. This Amendment No. 3 shall be governed by the internal laws of the State of California
and any question arising hereunder shall be construed or determined according to such law. The
Municipal and Superior Courts of the State of California in and for the County of Riverside, or
such other appropriate court in such county, shall have exclusive jurisdiction of any litigation
between the parties concerning this Amendment No. 3. Service of process on Agency 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
California.
8. Time is of the essence of this Amendment No. 3 and of each and every term and
provision hereof.
9. A waiver of a provision hereof, or modification of any provision herein contained, shall
be effective only if said waiver or modification is in writing, and signed by both Agency and
Developer. No waiver of any breach or default by any party hereto shall be considered to be a
waiver of any breach or default unless expressly provided herein or in the waiver.
10. This Amendment No. 3 may be executed in counterparts, each of which, when this
Amendment No. 3 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
11. The person(s) executing this Amendment No. 3 on behalf of each of the parties hereto
represent and warrant that (i) such party is duly organized and existing, (ii) they are duly
authorized to execute and deliver this Amendment No. 3 on behalf of said party, (iii) by so
executing this Amendment No. 3 such party is formally bound to the provisions of this
Amendment No. 3, and (iv) the entering into this Amendment No. 3 does not violate any
provision of any other agreement to which such party is bound.
882/015610-0085 _
617012.07 a10/28/05 _5
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No. 3, understands it, and hereby executes this Amendment No. 3 to be
effective as of the day and year first written above.
Dater , 2005
Date: L-6v. i , 2005
Date:- , 2005
ATTEST:
eek, Agency Secret
APPROVED AS TO FORM:
RUTAN TUCr
P
, _ ,Y'
By:
M. Kath rine Jenso Agency Counsel
"Developer"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT AGENCY,
a pub body, corporate and po
By:
Executive Director
882/015610-0085 617012.07 a10/28/05 -6_
EXHIBIT "A"
PARCEL MAP
[See following pages]
882/015610-0085 _
617012.07 a10/28/05 _1
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EXHIBIT `B"
SCOPE OF DEVELOPMENT
[See following pages]
882/015610-0085 _
617012.07 a 10/28/05 _ 1
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, and as amended by the Specific Plan Amendment, which was duly adopted by the
City Council on IV0 ✓. / . 40d.T , by Resolution No. v2ou 5-086 ("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 42.47 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 mid -price suites hotel containing 133 guest
rooms ("Suites Hotel"), (iii) a resort -style condominium/casitas project containing approximately
164 casitas units ("Casitas Development"), (iv) 2 sit-down restaurants (the "Restaurants"), and
(v) a single family residential development containing approximately 60 units ("Residential
Development'), all as further described below.
II. PROJECT COMPONENTS
A. Medical Office/Surgical Facility
The Medical Office/Surgical Facility, which will be constructed on approximately 13.63
acres, will contain approximately 195,000 square feet, in the aggregate, and house a medical
office and surgical center, which will provide an Ambulatory Surgery Center, GI Center,
Imaging Center, Cancer Treatment Center, Physical and Occupational Therapy services,
Industrial Rehabilitation services, Urgent Care Center, Draw Station and a Pharmacy. The
facility will provide individual offices for physicians associated with the facility, as well as areas
for patient treatment and diagnosis and 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 three (3) stories and forty five
(45) feet in height on Parcel 6, and two (2) stories and thirty-three (33) feet in height on Parcel 7.
B. Suites Hotel
The Suites Hotel, which will be constructed on approximately 3.42 acres, will consist of a
three-story, "extended stay" hotel having 133 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
882/015610-0085 _
617012.07 a10/28/05 -]
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 134 parking spaces for hotel
guests, and the parking area landscaping will provide shading.
C. Casitas Development
The Casitas Development, which will be constructed on approximately 10.81 acres, will
consist of the construction of approximately 164 condominiums, which will be 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 approximately nine (9) phases, with the first phase
including approximately 24 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 262 parking spaces, and the parking area landscaping will provide shading in
accordance with the Specific Plan.
D. Restaurants
The overall Project includes two Restaurant pads, with one pad on approximately .91
acres, and the other pad on approximately 1.10 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.
E. Single Family Development
The Project will contain one single family development (the "Residential Development").
The Residential Development will be constructed on approximately 9.45 acres, and will consist
of up to 60 one- and two-story single-family homes. The eastern perimeter of the development,
which is adjacent to the existing residential development, will be developed with one-story
single-family homes. Forty (40) of the homes in the Residential Development will be restricted
for sale to moderate -income families at an affordable housing cost. The residential units within
the Residential Development will range in size from 1250 square feet to 2800 square feet. All
units will have a two car garage. The Residential Development will include common area with
pools, barbeque areas and passive play areas.
F. 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
882/015610-0085
617012.07 a10/28/05 -2-
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 TIUS LIM: FOR RECORDING USE)
(EXEMPT FROM RECORDUIG FEE PER GOV CODE § 27383 )
AMENDED AND RESTATED OPTION AGREEMENT
NOTICE: THIS AMENDED AND RESTATED 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 AMENDED AND RESTATED OPTION AGREEMENT ("Amended and
Restated Option Agreement") is made this day of / 2006 (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 is the fee owner of 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 legally described in Exhibit "A" attached hereto and
incorporated herein.
B. On or about December 18, 2003, the Agency and Developer entered into that
certain Disposition and Development Agreement (the "Original DDA"), pursuant to which
Agency sold to Developer the Site and Developer agreed 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 (collectively, the "Original Project").
C. Agency and Developer have previously amended the Original DDA on four (4)
occasions, on or about October 28, 2004, on or about December 7, 2004, on or about
November 2, 2005, and on or about __ , 2006 (the "Prior DDA Amendments")
The Original DDA, as amended by the Prior DDA Amendments, is hereinafter referred to as the
"DDA."
D. Pursuant to the DDA, Agency and Developer entered into that certain Option
Agreement on December 7, 2004, which was recorded on December 9, 2004, as Instrument No.
992 UIGfiI(WAS
h
2004-0979138, in the Official Records of the County of Riverside (the "Option Agreement").
The Option Agreement grants 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 of the Project or portion thereof 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.
E. On or about April 4, 2005, Parcel Map No. 31116, in the City of La Quinta, was
filed in the Official Records of the County of Riverside in Book 212 of Parcel Maps at pages 60-
66, inclusive (the "Parcel Map"). The Parcel Map created legal parcels within the Site that
differ from the lots depicted on the Site Map attached to the DDA and on the Site Map attached
to the Option Agreement. In particular: (i) the Parcel Map created one legal parcel for
development thereon of the Casitas Development (identified thereon as "Parcel 2"), where the
Site Map had depicted the Casitas Development on three lots; (E) the Parcel Map created one
legal parcel for development thereon of the Sanctuary Villas (identified thereon as "Parcel 7"),
where the Site Map had depicted the Sanctuary Villas on two lots, and (iii) the Parcel Map
created one legal parcel for development thereon of the Medical Office/Surgical Facility
(identified thereon as "Parcel 6"), where the Site Map had depicted the Medical Office/Surgical
Facility on four lots. The Parcel Map also created "Parcel 1" and "Parcel 5" for development
thereon of the two restaurants to be constructed as part of the Project, "Parcel 3" and "Parcel 8"
for the development thereon of two residential developments to be constructed as part of the
Project, and "Parcel 4" for the development thereon of the Suites Hotel. All subsequent
references herein to a "Parcel" shall mean a parcel that has been created on the Parcel Map or a
lot or parcel that has been created by a lot line adjustment processed and recorded subsequent to
the recordation of the Parcel Map.
F. Pursuant to the Prior DDA Amendments, Agency agreed to permit Developer to
expand the Casitas Development onto Parcel3, and to expand the Medical Office/Surgical
Facility onto Parcel 7. In April, 2006, Developer processed Lot Line Adjustment No. 2006-452
whereby "Parcel 6" and a portion of "Parcel T' were merged into a single parcel (the "MOB
Parcel"), which MOB Parcel is more particularly described on Exhibit `B" attached hereto and
incorporated herein by this reference.
G. Pursuant to that certain Amendment No.4 to Disposition and Development
Agreement entered into on or about 2006 by and between Agency and
Developer ("Amendment No. 4 to DDA"), Agency agreed to modify certain provisions of the
Option Agreement.
H. The parties hereto now wish to replace, in its entirety, the Option Agreement with
this Amended and Restated Option Agreement.
1. Except as otherwise expressly provided herein, the terms used herein shall have
the meanings ascribed in the DDA.
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 and Agency hereby agree as follows:
682411%I�uY11L1 _i-
Replacement of Option Agreement
The Option Agreement is hereby replaced, in its entirety, with this Amended and
Restated Option Agreement
2. Repurchase Option I - Failure to Commence Construction
Pursuant to the terms of the Option Agreement, Developer granted to Agency an
exclusive option to repurchase the Site, or any Parcel thereof, if Developer failed to commence
construction of the Project or Parcel within the times set forth in the Commencement and
Completion Schedule attached to the Option Agreement (collectively, "Repurchase Option T').
For the purposes of the Option Agreement, (a) the term "commence construction" was defined to
mean Developer's completion of mass grading for the entire Site. Developer completed mass
grading of the entire Site on or about-' 200 , and therefore Agency hereby
acknowledges and agrees that Repurchase Option I as descried in the Option Agreement has
now terminated and is of no further effect.
3. Repurchase Oxon II - Failure to Continuously Proceed With or Complete
Construction F_xc�t MOB Parcel
Developer hereby grants to Agency an exclusive option to repurchase any individual
Parcel then -comprising the Site ("Option II Parcel(s)") 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 in. 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 Completion Schedule attached hereto and
incorporated herein as Exhibit"C", subject to Section 6(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 6(b) and 6(c) hereof) ("Repurchase Option II Period").
Agency acknowledges that concurrently with the recordation hereof, Developer has
conveyed fee title to the MOB Parcel to Eisenhower Medical Center, a California nonprofit
public benefit corporation ("EMC"), for a purchase price of Ten Million Eight Hundred
Thousand Dollars ($10,800,000) ("EMC Purchase Price"). Notwithstanding anything in this
Section 3 to the contrary, Agency's Repurchase Option II rights with respect to the MOB Parcel
shall be as set forth in Section 4 below.
(a) Exercise of Option
Agency shall exercise the Repurchase Option II by giving written notice to Developer, in
accordance with Section 7 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
BR2'U756I U-a0N'� A-
its obligation to continuously proceed with and complete construction of that Phase of
Development within the time set forth in the 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 Completion Schedule, or of any other Developer breach of the terms or
conditions of the DDA.
(b) Determination of Repurchase Price - Repurchase Option II (Except MOB
Parcel
Agency's repurchase price for the Option II Parcel(s) ("Repurchase Option II
Repurchase Price"), shall be the sum of Developer's Purchase Price for the Option II Parcel(s)
plus thirty-three and three -tenths percent (33.3%) of "Developer's Construction Costs." 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 11 (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.
4. RMurchase Option II — Failure to Continuously Proceed With or Complete
Construction (MOB Parcel)
Agency shall be entitled to exercise Repurchase Option II with respect to the MOB Parcel
if, after acquiring the Site, EMC fails to continuously proceed with, and complete, construction
of at least a 40,000 square foot Medical Office/Surgical Facility building (the "First MOB
Building"). For purposes of this Section 4, "continuously proceed with construction" shall have
the meaning ascribed in Section 3; and "completion of construction of the First MOB Building"
shall be defined as City's final inspection of said building on or before the applicable
Completion Deadline. In the event of EMC's failure to continuously proceed with construction,
or to complete construction of the First MOB Building by the Completion Deadline, Agency
shall be entitled to exercise, but is not obligated to exercise, applicable Repurchase Option II
with respect to the MOB Parcel for a period of ninety (90) days following the applicable
Completion Deadline (after expiration of the cure period described in Sections 6(b) and 6(c)
hereof).
xn_' OI561(4kIR'� �—
(a) Exercise of Option
Agency shall exercise the Repurchase Option II with respect to the MOB Parcel in the
manner described in paragraph 3(a) above.
(b) Determination of Repurchase Price — Repurchase Option II (MOB Parch
The Agency's Repurchase Option II Price for the MOB Parcel shall be equal to Ten
Million Eight Hundred Thousand Dollars ($10,800,000) plus thirty-three and three -tenths percent
(33.3%) of "EMC's Construction Costs." For purposes of this Amended and Restated Option
Agreement, the term "EMC's Construction Costs" shall mean the lesser of (i) construction
costs actually incurred by EMC for development of the MOB Parcel to the date Agency
exercises Repurchase Option II with respect to the MOB Parcel (the "EMC Construction
Period"), and (ii) the construction costs for the EMC Construction Period set forth in EMC's
Preliminary Budget, which costs may include (A) the amount paid by EMC to the contractor or
contractors performing the works of improvement, (B) reasonable inspection and testing costs
paid by EMC to independent third party engineers or consultants in conjunction with said works
of improvement (but not including costs, fees, charges, or profits allocated to EMC 's own
internal administrative, payroll, or overhead expenses or to any person or entity affiliated with
EMC; (C) costs and fees paid by EMC 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 EMC's own internal administrative, payroll, or
overhead expenses or to any person or entity affiliated with EMC); and (D) the costs and fees
incurred by EMC, if any, to obtain financing for the construction of the works of improvement.
5. Reourchase 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 Parcels)") 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 I➢P'). 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").
Notwithstanding the foregoing, Agency shall not have a Repurchase Option III to repurchase (i)
the Site, or any portion thereof, as a result of Developer's transfer to EMC of the MOB Parcel, or
(ii) the MOB Parcel for any transfer by Developer of any portion of the Site or Project. Any
subsequent transfer of the MOB Parcel by EMC in violation of the DDA shall entitle Agency to
exercise Repurchase Option III with respect to the MOB Parcel.
(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 7 of this Option
88'_ UI c61 W p8ti —�—
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
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 11I.
Agency's repurchase price for the Site or for the Option III Parcel(s) ("Repurchase
Option III Repurchase Price") shall be equal to the Repurchase Option II Repurchase Price, as
set forth in Section 3(b) or 4(b) (as applicable) of this Option Agreement.
6. Additional Terms Applicable to the Repurchase Options
The following additional terms shall apply to Repurchase Option II and Repurchase
Option III. All rights and defenses of Developer under this Section 6 shall be rights and defenses
of EMC with respect to the MOB Parcel:
(a) Successors and Assigns.
Repurchase Option I1 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 II until Agency has provided a written notice to Developer regarding
Developer's failure to continuously proceed with or complete construction of the Project or any
Phase of Development (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 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
A%?�1561R�b8s
of record of any mortgage or deed of trust which has previously requested such notice in writing,
including but not limited to 1st Centennial Bank, which is providing to Developer an acquisition
and development loan (the "A&D Loan"). 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 Obligation.
Notwithstanding any covenant, term, or provision in this Section 6 to the contrary,
Agency shall not be obligated to exercise 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 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.
Notwithstanding anything herein to the contrary, upon the "Medical Office/Surgical
Facility Release Date," which, as used herein, shall mean the earlier of (i) the date Developer
completes construction of the First MOB Building, as evidenced by City's issuance of a
certificate of occupancy therefor, and (ii) the date construction on the First MOB Building has
commenced, provided that completion bonds naming the Agency as a beneficiary with the right
to enforce are in place that guarantee completion of the same, this Option Agreement shall be
deemed terminated with respect to the MOB Parcel, and Agency shall execute and record a
partial termination hereof with respect to said Parcel.
(f) Enforced Delay.
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 parry, 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
882,0611WAMi
_........ 1 ...... -7-
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 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 this Option Agreement to the A&D Loan, 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 and the Casitas Development on Parcel 2 and on Parcel 3 and to execute a subordination
agreement evidencing same, to be recorded in the official records of the County Recorder for the
County of Riverside, provided all of the following conditions are met:
i) Loan Amount.
(1) for the Medical Office/Surgical Facility, the Restaurant to
be developed on Parcel 1, and the Restaurant to be developed on Parcel 5, the maximum
cumulative principal amount of the construction loan for the applicable Phase of Development
shall not exceed ninety percent (901/6) 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 and the Casitas Development, 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(s) 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 Opportunity 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 7 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
RR_'01?6 W=5
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 Investation of Site.
Agency shall have forty-five (45) days after the occurrence of an event that triggers
Agency's ability to exercise either of Repurchase Option II or Repurchase Option III to enter
upon the Site (or applicable 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 Ili (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
-Q-
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
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 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 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 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 (iv) 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 (v) 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
Repurchase Price to Developer.
(j) Agency's Right to Acquire the Site.
Notwithstanding anything herein to the contrary, upon Agency's exercise of 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).
RR'_ a7 Sfi7tu41Nti
(k) Agency's Repurchase of Uncom�eted 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 Parcel 8, if
Developer has obtained a Certificate of Completion from the City for one or more of the lots that
comprise said Parcel, (i) the provisions of this Option Agreement shall apply only to that portion
of Parcel 8 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 Parcel 8 (those portions of the Repurchase Property for
which Certificates of Completion have been issued).
7. 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, CA 92626
Attn: M. Katherine Jenson, Esq.
To Developer: CP Development La Quinta, LLC
77-564 Country Club Drive, Suite 100
Palm Desert, CA 92211
Attn: Richard Oliphant
With copies to: Ealy, Hemphill, Blasdell & Oleson, 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,
as2 of cetwns< —� �—
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.
8. AAen_ 's Option to Acquire Plans
If Agency exercises 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.
9. Apnlicable Law and Forum Attorney's Fees
The Superior Court 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 internal laws of the State
of California without regard to conflict of law principles. 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.
88201 Wfw 181
r. ---.- ... ._ .1 -1?-
10. Nonliabili 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.
11. 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.
12 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.
13 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 parry to be charged, and all amendments and modifications
hereto must be in writing and signed by the appropriate authorities of Agency and Developer.
14. Count_ a arcs
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.
15, 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,n seiaUs,.,.
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: Q.
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By: lam.
Richard R. Oliphant
Its: President
"AGENCY"
LA QUINTA REDEVELOPMENT AGENCY
a public body, corporate and politic
Executive Director
CIA
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
NX] of Sfi I(uttltls -14-
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:
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
Executive Director
8821015610-0085
735889 03 a0921 /06 -14-
STATE OF CALIFORNIA )
ss
COUNTYOF
On L 1yi U Pefore me, _
personally appeared i' , :' ,
personally known to me (or probed to me on_ the basis of satisfactory evidence) to be the
person(s) whose name(z) is/are subscribed to the within instrument and acknowledged to me that
he/slle4heq executed the same in hisAwfAheir authorized capacity(ies), and that by his/her/"r
signature(s) on the instrument the persons) or the entity upon behalf of which the person a)
acted, executed the instrument.
Witness my hand and official seal.
C. BRANDOW
COMMUlon * 1521142 r Notary Public - \
%1MVC0MM-EVkft0Ct22,2M8P
Notary Pubk . Caftpda
RNemft
STATE OF �ALIFORNIA )
)ss
COUNTY OF
On �. • .�� , before me, _
personally appeared
personally known to me (or proved tv me of -th"asis-el` satisfaactvey evidence) to be the
person(s) whose namef,,8'J is/are subscribed to the within instrument and acknowledged to me that
he/she4hey executed the same in his/he4their authorized capacity(ies), and that by his/her/their
signature(�) on the instrument the person(,A or the entity upon behalf of which the person^w
acted, executed the instrument.
Witness my hand and official seal.
- 'i1i
[SEAL]
A
Notary Public
8820I 5616('085 _ 1 �_
STATE OF CALIFORNIA 1
COUNTY OF RIVERSIDE 1 ss.
CITY OF LA QUINTA 1
On October 20, 2006 , before me, Regenia Hensley, Notary Public, personally
appeared THOMAS P. GENOVESE, personally known to me to be the person whose
name is subscribed to the within instrument and acknowledged to me that he executed
the same in his authorized capacity, and that by his signature on the instrument the
person or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
REMIA HENSLEYw
Notary Public
Commission # 1521423
Expiration: October 23, 2008
(Seal)
S
R
Jilt .41
EXHIBIT "A"
LEGAL DESCRIPTION OF THE SITE
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
PARCELS 1 THRU 5, INCLUSIVE, OF PARCEL MAP NO. 31116, AS SHOWN BY MAP
ON FILE IN BOOK 212 OF PARCEL MAPS, AT PAGES 60-66, INCLUSIVE, OF MAPS,
RIVERSIDE COUNTY RECORDS, AND PARCELS "A" AND "B" OF LOT LINE
ADJUSTMENT NO. 2006-452 APPROVED BY THE CITY OF LA QUINTA AND
RECORDED APRIL 19, 2006 AS INSTRUMENT NO. 0280726, OR, BEING ADJUSTED
PARCELS 6, 7 AND 8 OF PARCEL MAP NO. 31116 AS SHOWN BY MAP ON FILE IN
BOOK 212 OF PARCEL MAPS, AT PAGES 60-66, INCLUSIVE, OF MAPS, RIVERSIDE
COUNTY RECORDS, ALL BEING IN SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7
EAST, S.B.M.
882N75610-0085
73588903 a09R1/06
EXHIBIT'B"
LEGAL DESCRIPTION OF MOB PARCEL
PARCEL"A" OF LOT LINE ADJUSTMENT NO. 2006-452, MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
PARCEL 6 TOGETHER WITH THAT PORTION OF PARCEL 7 OF PARCEL MAP NO.
31116, AS SHOWN BY MAP ON FILE IN BOOK 212, AT PAGES 60 THROUGH 66,
INCLUSIVE, OF PARCEL MAPS, RIVERSIDE COUNTY RECORDS, BEING IN THE
SOUTH HALF OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, S.B.M., MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST EASTERLY CORNER OF SAID PARCEL 7;
THENCE ALONG THE SOUTHEASTERLY, SOUTHWESTERLY AND
NORTHWESTERLY BOUNDARY LINES OF SAID PARCEL 7 THROUGH THE
FOLLOWING FIVE (5) COURSES:
(1) SOUTH 43°56'44" WEST, A DISTANCE OF 357.95 FEET TO THE BEGINNING OF
A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF
4,565.17 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS NORTH
42°59'27" EAST;
(2) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 02057'46", AN ARC DISTANCE OF 236.07 FEET TO A POINT,
A RADIAL LINE PASSING THROUGH SAID POINT BEARS NORTH 40001'41" EAST;
(3) THENCE NON -TANGENT TO SAID CURVE SOUTH 00017'35" EAST, A DISTANCE
OF 11.03 FEET TO THE BEGINNING OF A NON -TANGENT CURVE, CONCAVE
SOUTHWESTERLY, HAVING A RADIUS OF 2,500.00 FEET, A RADIAL LINE PASSING
THROUGH SAID POINT BEARS NORTH 36057'2T' EAST;
(4) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 05043'47", AN ARC DISTANCE OF 250.01 FEET TO A POINT,
A RADIAL LINE PASSING THROUGH SAID POINT BEARS NORTH 31013'40" EAST;
(5) THENCE NON -TANGENT TO SAID CURVE NORTH 28°29'24" EAST, A DISTANCE
OF 153.02 FEET TO AN ANGLE POINT IN THE SOUTHEASTERLY BOUNDARY LINE
OF SAID PARCEL 6 OF PARCEL MAP NO. 31116,
THENCE LEAVING THE BOUNDARY LINES OF SAID PARCEL 7 AND ALONG THE
SOUTHWESTERLY, WESTERLY, NORTHERLY AND EASTERLY LINES OF SAID
PARCEL 6 THROUGH THE FOLLOWING FIFTEEN (15) COURSES:
(1) THENCE NORTH 61030'36" WEST, A DISTANCE OF 150.00 FEET;
88^_015611MM85
(2) THENCE SOUTH 28°29'24" WEST A DISTANCE OF 150.35 FEET TO THE
BEGINNING OF A NON -TANGENT CURVE, CONCAVE SOUTHWESTERLY, HAVING
A RADIUS OF 2,500.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT
BEARS NORTH 27047'20" EAST;
(3) THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 09043' 18", AN ARC DISTANCE OF 424.19 FEET TO THE
BEGINNING OF A NON -TANGENT CURVE, CONCAVE WESTERLY, HAVING
A RADIUS OF 2,095.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT
BEARS NORTH 75025'34" EAST;
(4) THENCE NORTHERLY ALONG THE ARC OF LAST SAID CURVE, THROUGH
A CENTRAL ANGLE OF 02056'54", AN ARC DISTANCE OF 107.80 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE EASTERLY, HAVING A RADIUS OF
18.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS SOUTH
72°28'40" WEST;
(5) THENCE NORTHERLY ALONG THE ARC OF LAST SAID CURVE, THROUGH
A CENTRAL ANGLE OF 27042'25", AN ARC DISTANCE OF 8.70 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE WESTERLY, HAVING A RADIUS OF
82.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS SOUTH
79°48'55" EAST;
(6) THENCE NORTHERLY ALONG THE ARC OF LAST SAID CURVE, THROUGH
A CENTRAL ANGLE OF 29001'21", AN ARC DISTANCE OF 41.54 FEET TO THE
BEGINNING OF A COMPOUND CURVE, CONCAVE WESTERLY, HAVING A RADIUS
OF 2,107.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS NORTH
71°09'44" EAST;
(7) THENCE NORTHERLY ALONG THE ARC OF LAST SAID CURVE, THROUGH
A CENTRAL ANGLE OF 03016'31", AN ARC DISTANCE OF 120.45 FEET;
(8) THENCE NON -TANGENT TO LAST SAID CURVE NORTH 22°46'41" EAST,
A DISTANCE OF 5.77 FEET;
(9) THENCE NORTH 67°06'56" EAST, A DISTANCE OF 52.05 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING
A RADIUS OF 540.00 FEET;
(10) THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 15052'03", AN ARC DISTANCE OF 149.55 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE SOUTHEASTERLY, HAVING
A RADIUS OF 810.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS
NORTH 38045'07" WEST;
(11) THENCE NORTHEASTERLY ALONG THE ARC OF LAST SAID CURVE,
THROUGH A CENTRAL ANGLE OF 31010'05", AN ARC DISTANCE OF 440.63 FEET
TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY, HAVING
882 01 W 0+➢18'
A RADIUS OF 840.00 FEET, A RADIAL LINE PASSING THROUGH SAID POINT BEARS
SOUTH 07035'02" EAST;
(12) THENCE EASTERLY ALONG THE ARC OF LAST SAID CURVE, THROUGH
A CENTRAL ANGLE OF 13034'42", AN ARC DISTANCE OF 199.07 FEET,
(13) THENCE NON -TANGENT TO LAST SAID CURVE SOUTH 16°39' 14" EAST,
A DISTANCE OF 55.87 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
WESTERLY, HAVING A RADIUS OF 250.00 FEET;
(14) THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE, THROUGH
A CENTRAL ANGLE OF 20041'22", AN ARC DISTANCE OF 90.27 FEET;
(15) THENCE TANGENT TO SAID CURVE SOUTH 04°02'08" WEST A DISTANCE OF
333.46 FEET TO THE NORTHWESTERLY PROLONGATION OF THE NORTHEASTERLY
LINE OF SAID PARCEL 7;
THENCE LEAVING SAID BOUNDARY LINES OF PARCEL 6 AND ALONG SAID
PROLONGATION AND SAID NORTHEASTERLY LINE OF PARCEL 7 SOUTH 50010' 13"
EAST, A DISTANCE OF 592.88 FEET TO THE POINT OF BEGINNING.
SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS -OF -WAY
OF RECORD.
CONTAINING 588,702 SQUARE FEET OR 13.515 ACRES, MORE OR LESS.
881 ut Sa1uu185
Phase of Development
Restaurant to be developed on Parcel I
Casitas Development (Parcel2)
Casitas Development (Parcel 3)
Suites Hotel (Parcel d)
Restaurant to be developed on Parcel 5
First MOB Building (MOB Parcel)
Residential Development (Parcel 8)
Seeley Drive
EXHIBIT "C"
COMPLETION SCHEDULE
Time for Completion of Construction
(measured from date Citt issues final buildme
permits for applicable Phase of Develonment)
36 months
36 months
36 months
23 months
36 months
36 months
18 months
180 days after Developer's
completion of Suites Hotel
RV 0116W,081
EXHIBIT "D„
PURCHASE PRICE
Parcel 1 (Restaurant) 206,924.58
Casitas Parcel 2 $1,938, 793.41
Casitas Parcel 3 135,694.34
Parcel 4 (Suites Hotel) 753,475.39
Parcel 5 (Restaurant) 251,908.18
Parcel B of Lot Line Adjustment No. 2006-452 557,028 39
(Residential Development)
Landscape Parcel C 0
Landscape Parcel E 0
Landscape Parcel H 0
Landscape Parcel I 0
Seeley Drive Parcel 0
Well Site Parcel 116,957.37
NX2 0156101085
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.
G. 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.
H. 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.
I. 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.
J. 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.
882/015610-0085 _3
617012.07 a10/28/05