2006 Centre Pointe - Disposition and DA Amendment 4 - CP Development, LLCAMENDMENT NO.4 TO DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AMENDMENT NO. 4 TO DISPOSITION AND DEVELOPMENT
AGREEMENT ("Amendment No. 4") is made and entered into as of 4��, �
2006 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 sold to Developer 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
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").
B. Agency and Developer have previously amended the Original DDA on three (3)
occasions, on or about October 28, 2004, on or about December 7, 2004, and on or about
November 2, 2005 (the "Prior DDA Amendments"). The Original DDA, as amended by the
Prior Amendments, is hereinafter referred to as the "DDA" and the Original Project, as amended
by the Prior Amendments, is hereinafter referred to as the "Project."
C. Developer has previously processed Lot Line Adjustment No. 2006-452 whereby
"Parcel6" and a portion of "Parcel 7," which were parcels designated in the DDA for the
development of the Medical Office/Surgical Facility, were merged into a single parcel (the
"MOB Parcel"), which MOB Parcel is more particularly described on Exhibit "A" attached
hereto and incorporated herein by this reference.
D. Developer has entered into a purchase and sale agreement with Eisenhower
Medical Center, a California non-profit public benefit corporation ("Eisenhower"), pursuant to
which Developer has agreed to sell to Eisenhower the MOB Parcel (the "Eisenhower Purchase
Agreement"). Eisenhower has indicated that it will only acquire the MOB Parcel from the
Developer if the Agency and Developer modify certain terms set forth in the Option Agreement
entered into by and between the Agency and Developer on or about December 7, 2004, and
recorded on December 9, 2004, as Instrument No. 2004-0979138, in the Official Records (the
"Option Agreement").
E. Pursuant to the terms and conditions of this Amendment No. 4, Developer and
Agency now wish to (i) modify certain terms set forth in the Option Agreement; and (ii) set forth
additional terms and conditions pertaining to Agency's agreement to enter into this Amendment
No. 4. Unless defined herein to the contrary, all capitalized terms in this Amendment No. 4 shall
have the meanings ascribed in the DDA.
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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:
The DDA is hereby amended as follows:
1. Within three (3) days after the execution hereof, Developer and Agency shall open an
escrow account (the "Escrow") with the escrow agent handling the closing under the Eisenhower
Purchase Agreement (the "Escrow Agent"). At the closing contemplated under the Eisenhower
Purchase Agreement (the "Eisenhower Closing"), all of the proceeds from the Eisenhower
Closing, which shall be an amount not less than Ten Million Eight Hundred Thousand Dollars
($10,800,000) (the "Eisenhower Sales Proceeds"), shall be deposited by the Escrow Agent in
the Escrow, in an interest bearing account. The Escrow Agent shall release from the Escrow
portions of the Eisenhower Sales Proceeds only in the following manner:
1.1 The Escrow Agent may release a portion of the Eisenhower Sales Proceeds in an
amount equal to the release price required to obtain the release of the MOB Parcel from the lien
of the first mortgage on the Property ("MOB Release Price"); provided, however, that the MOB
Release Price shall not exceed Nine Million Eight Hundred Thousand Dollars ($9,800,000).
Said portion of the Eisenhower Sales Proceeds shall be released directly to the lender with a first
mortgage on the Property (the "Developer's Mortgagee").
1.2 In the event that the MOB Release Price is less than Nine Million Eight Hundred
Thousand Dollars ($9,800,000), the Escrow Agent shall release to Developer additional
Eisenhower Sales Proceeds in an amount that, when combined with the amount released to
Developer's Mortgagee pursuant to Section 1.1 above, equals Nine Million Eight Hundred
Thousand Dollars ($9,800,000), for Developer's use in completing the Suites Hotel.
1.3 The Escrow Agent shall release to Developer the remaining One Million Dollars
($1,000,000) of the Eisenhower Sales Proceeds, plus all interest accrued thereon, on 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 building of the Medical
Office/Surgical Facility, with such building containing at least forty thousand square feet (40,000
sf.) of space (the "First MOB Building"), as evidenced by City's issuance of a certificate of
occupancy therefor; or (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. In the event that prior to the Medical
Office/Surgical Facility Release Date Agency exercises its option to purchase the MOB Parcel as
provided in the "Amended and Restated Option Agreement" (as that term is defined in Section
2.1 below), then the Escrow Agent shall release such remaining portion of the Eisenhower Sales
Proceeds then held in the Escrow to Agency to partially fund Agency's repurchase of the MOB
Parcel from Eisenhower.
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Developer and Agency shall prepare and provide to Escrow Agent escrow instructions
mutually acceptable to both parties which incorporate and address all of the provisions in this
Section 1.
2. Concurrently with the Eisenhower Closing, all of the following shall occur:
2.1 Developer and Agency shall execute and record in the Official Records an
Amended and Restated Option Agreement substantially in the form attached hereto and
incorporated herein as Exhibit "B" (the "Amended and Restated Option Agreement").
2.2 Developer and Eisenhower shall provide Agency with an assignment and
assumption agreement in the form attached hereto and incorporated herein as Exhibit "C" that
has been executed by Developer and Eisenhower, pursuant to which Developer assigns to
Eisenhower and Eisenhower assumes and agrees to be bound by all of the terms and conditions
in the DDA applicable to the MOB Parcel and the Medical Office/Surgical Facility. Agency
agrees that, only as to the MOB Parcel and the Medical Office/Surgical Facility, all references to
the "Developer" in the DDA and in the Grant Deed by which the Agency conveyed the Property
to the Developer ("Grant Deed"), shall be deemed to be references to Eisenhower from and after
the effective date of the assignment and assumption agreement. Notwithstanding anything
herein or in the DDA to the contrary, after such conveyance to Eisenhower, Eisenhower shall be
permitted to transfer and assign its interests in the MOB Parcel and in the DDA to a limited
liability company in which Eisenhower is the sole member, or to a corporation in which
Eisenhower is the sole shareholder.
3. Notwithstanding anything herein or in the DDA to the contrary, as of the Medical
Office/Surgical Facility Release Date, Agency's right of reverter and power of termination
pursuant to Section 607 of the DDA and in the Grant Deed shall terminate with respect to the
MOB Parcel. Agency's right of reverter and power of termination with respect to the remaining
Parcels comprising the Property shall survive such termination in accordance with the terms of
the Amended and Restated Option Agreement.
4. Nothing herein or in the DDA constitutes a representation or warranty by Agency that the
construction of the Project or any portion thereof is not subject to California Health and Safety
Code Sections 33423 through 33426, or Chapter 1 of Part 7 of the California Labor Code
(commencing with section 1720), and all applicable statutory and regulatory provisions related
thereto, and (i) Developer expressly waives any right of reimbursement for any "increased costs"
under California Labor Code Section 1781 or otherwise with respect to the Property or the
Project (other than the MOB Parcel or the Medical Office/Surgical Facility if Developer sells the
MOB Parcel to Eisenhower); and (ii) Developer shall cause Eisenhower to expressly waive any
right of reimbursement for any "increased costs" under California Labor Code Section 1781 or
otherwise with respect to the MOB Parcel or the Medical Office/Surgical Facility. Developer
shall, indemnify, defend, and hold Agency harmless, including litigation costs and reasonable
attorneys' fees, from and against any and all claims pertaining to the payment of wages for the
Property or Project; provided, however, that upon the sale of the MOB Parcel, Eisenhower shall
be required to indemnify, defend, and hold Agency harmless, including litigation costs and
reasonable attorneys' fees, from and against any and all claims pertaining to the payment of
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m
wages for the MOB Parcel or the Medical Office/Surgical Facility and upon Eisenhower's
agreement to the foregoing indemnification, Developer shall thereafter be released from the
indemnity obligation described in this paragraph to the extent that such indemnity arises from the
MOB Parcel or the development of the Medical Office/Surgical Facility to be located thereon.
Agency acknowledges that Eisenhower's obligations under the DDA shall be limited to those
obligations contained in the DDA which arise from the MOB Parcel or the development of the
Medical Office/Surgical Facility thereon, and Eisenhower shall not be liable for or obligated to
perform any of Developer's obligations under the DDA to the extent that such obligations affect
any portion of the Property except the MOB Parcel.
5. Developer represents and warrants that Developer will not seek any further modifications
or agreements from the Agency or from the City of La Quinta that involve Agency or City
financial assistance and/or incentives to complete and operate the Project pursuant to the terms of
the DDA.
6. Developer shall reimburse Agency for all of the costs Agency incurs or has incurred to
negotiate, prepare and process this Amendment No. 4.
7. Except as otherwise expressly provided in this Amendment No. 4, all of the terms and
conditions of the DDA shall remain in full force and effect.
8. In the event of any action between or amongst the parties hereto seeking enforcement of
any of the terms and conditions to this Amendment No. 4, 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.
9. This Amendment No. 4 shall be construed according to its fair meaning and as if
prepared by all of the parties hereto.
10. This Amendment No. 4 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
Superior Court 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. 4. Service of process on Agency shall be made in
accordance with California law. Service of process on Developer and Eisenhower shall be made
in any manner permitted by California law and shall be effective whether served inside or
outside California.
11, Time is of the essence of this Amendment No. 4 and of each and every term and
provision hereof.
12. 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 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.
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13. This Amendment No. 4 may be executed in counterparts, each of which, when this
Amendment No. 4 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
14. The person(s) executing this Amendment No. 4 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. 4 on behalf of said party, (iii) by so
executing this Amendment No. 4 such party is formally bound to the provisions of this
Amendment No. 4, and (iv) the entering into this Amendment No. 4 does not violate any
provision of any other agreement to which such party is bound.
[signature page follows]
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IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No.4, understands it, and hereby executes this Amendment No.4 to be
effective as of the day and year first written above.
Date: bL,-rbVesgz F, 2006
Date: 19 2006
AT)W46T: _.
Agency Secretary
U1M&Afd'!;yW
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
M. Katherine Jenson, Agency Counsel
"Developer"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
By: C.
Richard Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
��) /�- a��
By: _ J
Richard Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT
AGENCY, a public body, co orate and
By:
Executive Director
SM015610oo85
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No.4, understands it, and hereby executes this Amendment No.4 to be
effective as of the day and year first written above.
K11.
Date: 2006
"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 public body, corporate and
politic
2006 By:
Executive Director
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
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EXHIBIT "A"
LEGAL DESCRIPTION OF MOB PARCEL
PARCEL "A" OF LOT LINE ADJUSTMENT NO.2006-452, MORE PARTICULARLY
DEFINED 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 00°17'35" 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 36057'27" 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:
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(11) THENCE NORTHEASTERLY ALONG THE ARC OF LAST SAID CURVE,
TIIROUGH A CENTRAI. ANGLE, OF 31°10'05", AN ARC DISTANCE OF 440.63 FEET
TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY, HAVING
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, RAVING 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 PARCEI. 6 AND ALONG SAID
PROLONGATION AND SAID NORTHEASTERLY LINE OF PARCEL 7 SOUTH 50°10' 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.
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EXHIBIT "B"
AMENDED AND RESTATED OPTION AGREEMENT
[See following pages]
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