2007 Centre Pointe - Disposition and DA Amendment 5 - CP Development, LLCAMENDMENT NO.5 TO DISPOSITION AND DEVELOPMENT AGREEMENT
THIS AMENDMENT NO. 5 TO DISPOSITION AND DEVELOPMENT
AGREEMENT ("Amendment No. 5") is made and entered into as of August 23, 2007 (the
"Effective Date") 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 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 October 20, 2006 (the "Prior DDA Amendments"). The Original
DDA, as amended by the Prior DDA Amendments, is hereinafter referred to as the "DDA" and
the Original Project, as amended by the Prior DDA Amendments, is hereinafter referred to as the
"Project."
C. Concurrently with the execution of the Original DDA, the City of La Quinta, a
California municipal corporation ("City"), and Developer entered into that certain Development
Agreement which was recorded in the Official Records of the County Recorder for the County of
Riverside on January 5, 2004 as Instrument No. 2004-0005256 (the "Original DA"). Agency
and Developer have amended the Original DA on two prior occasions, pursuant to that certain
Amendment No. 1 to Development Agreement executed on or about October 28, 2004 and
recorded in the Official Records of the County Recorder for the County of Riverside on
November 8, 2004 as Instrument No. 2004-0885063, and pursuant to that certain Amendment
No. 2 to Development Agreement executed on or about November 17, 2005 and recorded in the
Official Records of the County Recorder for the County of Riverside on December 19, 2005, as
Instrument No. 2005-1045418 (the "Prior DA Amendments") The Original DA, as amended
by the Prior DA Amendments, is hereinafter referred to as the "DA."
D. Pursuant to the Prior DDA Amendments and the Prior DA Amendments,
Developer was permitted to, and did, (1) sell to Lennar Homes of California ("Lennar") that
portion of the Property described as Parcel 2 of Parcel Map 31116 ("Parcel 2"); (ii) grant to
Lennar an option to purchase that portion of the Property described as Parcel 3 of Parcel Map
31116 ("Parcel 3"); and (iii) assign its rights and obligations under the DDA and DA with
respect to Parcel 2 and Parcel 3 (collectively, the "Casitas Property") and the Casitas
8821015610-0085 829721 02 a08/16/07 4
_
Development to Lennar. Lennar has developed or is developing one hundred thirty two (132)
condominium/casitas units on Parcel 2. Lennar elected not to exercise its option to purchase
Parcel 3, and Developer has therefore requested that the Agency and City permit Lennar to
transfer to Developer or an entity owned and controlled by Developer all of Lennar's rights and
obligations under the DDA and DA with respect to Parcel 3 and the portion of the Casitas
Development to be constructed on Parcel 3 and all associated public and private improvements
and amenities to be developed as part of said portion (collectively, the "Parcel 3 Casitas
Obligations").
E. Pursuant to the Prior DDA Amendments and Prior DA Amendments, Agency
authorized Developer to transfer the MOB Parcel and Developer's rights and obligations with
respect to the MOB Parcel under the DDA and DA to Eisenhower Medical Center, a California
non-profit public benefit corporation. In connection with said transfer, Developer was obligated
to deposit with the Escrow Agent handling the transaction the Eisenhower Sales Proceeds, and
the Escrow Agent was instructed to retain One Million Dollars ($1,000,000) of the Eisenhower
Sales Proceeds (the "Remaining Sales Proceeds") until the Medical Office/Surgical Facility
Release Date. Developer has requested that the Agency (a) approve a revision to the Second
Permitted Phase of Construction that increases the permitted size of the First MOB Building by
10,655 square feet; and (b) instruct the Escrow Agent to release to Developer (i) fifty percent
(50%) of the Remaining Sales Proceeds to Developer at the time the Suites Hotel is completed,
as evidenced by City's issuance of a final certificate of occupancy, and opened to members of
the public, and (ii) the final fifty percent (50%) of the Remaining Sales Proceeds to Developer at
the time the City completes its final inspection for the foundation of the First MOB Building.
F. Developer had requested that the Agency and City (a) permit Developer to assign
to Apple Properties, LLC, a North Dakota limited liability company ("Apple Properties") all of
its rights and obligations under the DDA and DA with respect to Parcel 5 and the Restaurant to
be constructed on Parcel 5 (the "Parcel 5 Restaurant), (b) delete the requirement that the Parcel
5 Restaurant serve breakfast, and (c) approve a new schedule for the development of the Parcel 5
Restaurant.
G. Developer and Agency now wish to modify the DDA in the manner specified in
Recitals D, E, and F above, pursuant to the terms and conditions of this Amendment No. 5.
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 Lennar shall be permitted to assign to Developer or to an entity owned and
controlled by Developer, and Developer or such entity owned and controlled by Developer shall
be permitted to assume from Lennar all of Lennar's rights and obligations under the DDA and
DA with respect to Parcel 3 and the Parcel 3 Casitas Obligations. Notwithstanding the
882/015610-0085
829721.02 a08A6/07 -2-
foregoing, any such assignment, even a permitted assignment, shall not be effective until such
time as Lennar and Developer (or an entity owned and controlled by Developer) have executed
and delivered to the Agency an assignment and assumption agreement in the form attached
hereto and incorporated herein as Attachment No. 1, pursuant to which Lennar assigns to
Developer and Developer assumes and agrees to be bound by all of the terms and conditions in
the DDA and DA with respect to Parcel 3 and the Parcel 3 Casitas Obligations.
1.2 Developer shall be permitted to assign to Apple Properties, and Apple Properties
shall be permitted to assume from Developer, all of Developer's rights and obligations under the
DDA and DA with respect to Parcel 5 and the Parcel 5 Restaurant. Notwithstanding the
foregoing, any such assignment, even a permitted assignment, shall not be effective until such
time as Developer and Apple Properties have executed and delivered to the Agency an
assignment and assumption agreement in the form attached hereto and incorporated herein as
Attachment No. 2, pursuant to which Developer assigns to Apple Properties and Apple
Properties assumes and agrees to be bound by all of the terms and conditions in the DDA and
DA applicable to Parcel 5 and the Parcel 5 Restaurant.
1.3 The Schedule of Performance applicable to the Parcel 5 Restaurant is hereby
modified in its entirety to be the schedule attached hereto and incorporated herein as Attachment
No. 3.
1.4 The Scope of Development shall be revised to delete the requirement in
Paragraph III) that the second Restaurant serve breakfast.
1.5 Agency hereby instructs the Escrow Agent to release to Developer (a) fifty
percent (50%) of the Remaining Sales Proceeds at the time the Suites Hotel is completed, as
evidenced by City's issuance of a final certificate of occupancy, and opened to members of the
public, and (b) the final fifty percent (50%) of the Remaining Sales Proceeds at the time the City
completes its final inspection for the foundation of the First MOB Building.
1.6 The Second Permitted Phase of Construction, as described in Section 201.1(b) of
the DDA, shall be revised to replace the reference to the maximum square footage of the First
MOB Building in clause (a), which is currently "75,000 square feet" with "85,655 square feet."
2. Developer shall reimburse Agency for all of the costs Agency incurs or has incurred to
negotiate, prepare and process this Amendment No. 5.
3. Except as otherwise expressly provided in this Amendment No. 5, all of the terms and
conditions of the DDA shall remain in full force and effect. Unless defined herein to the
contrary, all capitalized terns in this Amendment No. 5 shall have the meanings ascribed thereto
in the DDA.
4. 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. 5, 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.
882/015610-0085
829721.02 a08/16107 -3-
5. This Amendment No. 5 shall be construed according to its fair meaning and as if
prepared by all of the parties hereto.
6. This Amendment No. 5 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. 5. 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.
7. Time is of the essence of this Amendment No. 5 and of each and every term and
provision hereof.
8. 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.
9. This Amendment No. 5 may be executed in counterparts, each of which, when this
Amendment No. 5 has been signed by all the parties hereto, shall be deemed an original, and
such counterparts shall constitute one and the same instrument.
10. The person(s) executing this Amendment No. 5 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. 5 on behalf of said party, (iii) by so
executing this Amendment No. 5 such party is formally bound to the provisions of this
Amendment No. 5, and (iv) the entering into this Amendment No. 5 does not violate any
provision of any other agreement to which such party is bound.
[signature page follows]
882/015610-0085
829721 02 a08/16/07 -4-
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No. 5, understands it, and hereby executes this Amendment No. 5 to be
effective as of the day and year first written above.
"Developer"
CP DEVELOPMENT LA QUINTA, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
Date:_ 2007 By:_P. (;
Richard Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
Date:_ , 2007 By: Qb %)- ^�
Richard Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
By:
Executi4birector
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Attorneys for the La Quinta Redevelopment
Agency
982/015610-0085
829721 02 a08/16/07 -j-
IN WITNESS WHEREOF, Agency and Developer each hereby represents that it has read
this Amendment No. 5, understands it, and hereby executes this Amendment No. 5 to be
effective as of the day and year first written above.
Date: 12007
"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
Date: 2007 By:
Richard Oliphant
Its: President
"Agency"
LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and
politic
Date: 2007 By:
ATTEST:
Agency Secretary
APPROVED AS TO FORM:
RUTAN & TUCKE LLP
Attorheys fof the La Quint?'Redevelopment
Agency
Executive Director
882/015610-0085
829721,02 a08/16/07 -5-
State of California CALIFORNIA ALL-PURPOSE
Countyof Vw,. S-dI SS' CERTIFICATE OF ACKNOWLEDGMENT
On 1-aQU,C a\,o'AUJ4- beforeme, UAMIU)�L—Bmmna
Date Printed Name of Notary Public
personally appeared Y'AUVAim `" I
Vpersonally known to me - or -
❑ proved to me on the basis of satisfactory evidence:
❑ form(s) of identification
❑ credible wltness(es)
to be the person( whose name( is/are subscribed to the within instrument and acknowledged to me
that he/she*vey executed the same in his/laeFAIiieir authorized capacity(ill and that by his/Iner44eir
signature(,} on the instrument the perscil or the entity upon behalf of which the persons} acted,
executed the instrument.
WITNESS my hand and official seal.
CANDICE R. BORCENA
Commlaalo1 # 1893376
ti Notary PubIlc • Calllom10
RNerakie County It
— 1 nnycomm.Jun sv,zooq
Signature of Notary Public
(Seal)
OPTIONAL INFORMATION
Although the information rn this section is not required by law, it could prevent fraudulent removal and reattachment of this
acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document
The preceding Certificate of Acknowledgment Is attached to a document
titled/for the purpose of
containing Ik 'pages, and dated
The signer(s) capacity or authority is/are as
ndmdual(s)
❑ Attorney -in -Fact
❑ Corporate Officer(s)
Title(s)
❑ Guardian/Conservator
❑ Partner - Limited/General
❑ Trustee(s)
❑ Other
representing:
Name(,) of Persons) or Entity(es) Signer is Representing
❑ Additional Signer(s) ❑ Signer(s)Thumbpnnt(s)
❑ Other
®Copyright 2004 Notary Rotary, Inc 925 29th St, Des Moines, IA 503123612 Form ACK02 02/04 To re-orderr call roll -tree 1- SIR -349-6588 or visit us on time Internet at Run//www tnenotarysnop mm
ATTACHMENT NO. 1
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
[Casitas Property]
[See following pages]
882/015610-0085
829721.02 a08/16/07 ATTACHMENT NO. 1
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CP DEVELOPMENT LA QUINTA, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is
entered into this _ day of 2007 (the "Effective Date") by and
between LENNAR HOMES OF CALIFORNIA, INC., a California corporation ("Assignor") and
CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company ("Assignee")
with reference to the following:
A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-
245 and 45-165 Seeley Drive, in the City of La Quinta, California, which is more particularly
described on Exhibit "A" attached hereto and incorporated herein by this reference (the "Casitas
Property").
B. WHEREAS, pursuant to the terms of that certain Disposition and Development
Agreement entered into by and between the Assignee and the La Quinta Redevelopment Agency,
a public body, corporate and politic ("Agency") on or about December 18, 2003, as amended on
or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or
about October 20, 2006, and on or about the same date hereof (as amended, the "DDA"), the
Agency conveyed the Casitas Property and certain other adjacent real property to the Assignee.
C. WHEREAS, subsequent to its acquisition of the Casitas Property, Assignee
conveyed the Casitas Property and assigned all of its rights and obligations with respect to the
Casitas Property to Assignor.
D. WHEREAS, concurrently with the execution of the DDA, the City of La Quinta
("City") and Assignee entered into that certain Development Agreement which was recorded in
the Official Records of the County Recorder for the County of Riverside on January 5, 2004 as
Instrument No. 2004-0005256, and 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 Recorder for the County of Riverside on November 8, 2004 as Instrument No. 2004-
0885063, and that certain Amendment No. 2 to Development Agreement executed on or about
November 17, 2005 and recorded in the Official Records of the County Recorder for the County
of Riverside on December 19, 2005, as Instrument No. 2005-1045418 (as amended, the "DA").
882/01561"085 ATTACHMENT NO. 1
82972102 a08116i07 Page 1 of 6
E. WHEREAS, pursuant to the terms of the DDA and DA, the Casitas Property is to
be used for the development of one hundred sixty-four (164) casitas/condominium units (the
"Casitas Development").
F. WHEREAS, Assignor has developed or intends to develop on Parcel 2 of the
Casitas Property ("Parcel 2") one hundred thirty-two (132) casitas/condominium units with
associated public and private improvements and amenities, and now wishes to transfer and assign
to Assignee all of its rights and obligations under the DDA and DA with respect to Parcel 3 of
the Casitas Property ("Parcel 3") and the portion of the Casitas Development to be constructed
on Parcel 3 and all associated public and private improvements and amenities to be developed as
part of said portion (collectively, the "Parcel 3 Casitas Obligations").
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under
the terms of the DDA and DA with respect to Parcel 3 and the Parcel 3 Casitas
Obligations (collectively, the "Assigned Rights and Obligations").
2. Assignee hereby accepts the foregoing assignment of the Assigned Rights and
Obligations, and agrees to be bound by the terms of the DDA and DA to the extent that
such terms affect or are affected by ownership of the Parcel 3 and then only to the extent
of the Assigned Rights and Obligations.
3. The parties hereto acknowledge and agree that Assignee shall not be responsible for any
of the obligations of the DDA or DA which arise from ownership of Parcel 3 which arise
prior to the Effective Date hereof. As such, a default by Assignor under the DDA or DA
with respect to Parcel 3 or the Parcel 3 Casitas Obligations prior to the Effective Date
hereof ("Assignor's Default") shall not be deemed a default by Assignee, and Assignor
shall indemnify, defend and hold harmless Assignee from any and all losses, claims or
liability, including without limitation reasonable attorneys' fees and costs, arising from
an Assignor's Default. A default by Assignee under the DDA or DA with respect to
Parcel 3 or the Parcel 3 Casitas Obligations after the Effective Date hereof ("Assignee's
Default") shall not be deemed a default by Assignor, and Assignee shall indemnify,
defend and hold harmless Assignor from any and all losses, claims or liability, including
without limitation reasonable attorneys' fees and costs, arising from an Assignee's
Default.
4. Nothing herein or in the DDA or DA constitutes a representation or warranty by the
Agency that the construction of the Parcel 3 Casitas Obligations 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 Assignee expressly waives any
right of reimbursement for any "increased costs" under California Labor Code Section
1781 or otherwise with respect to the Casitas Property or the Casitas Development.
Assignee shall indemnify, defend, and hold the Agency harmless, including litigation
882/015610-0085 ATTACHMENT NO. 1
829721 02 a08/16/07 Page 2 of 6
costs and reasonable attorneys' fees, from and against any and all claims pertaining to the
payment of wages for the Casitas Property or the Casitas Development.
5. The City and the Agency shall be deemed to be third party beneficiaries of the waiver and
indmenity set forth in Section 4 and the warranty and representation set forth in Section
6.
6. The parties hereto each warrant and represent that they have taken all necessary corporate
action to authorize the execution and performance of this Assignment and that the
individuals executing this document on behalf of the parties are authorized to do so, and
by doing so, create binding obligations as described herein of the party represented.
7. The terms of this Assignment shall not be amended and this Assignment shall not be
terminated except by written instrument executed by both of the parties hereto, and only
upon the prior written consent of the City and Agency.
8. This Assignment shall be governed by the internal laws of the State of California, without
regard to conflict of law principles.
9. Any defined terms used but not defined herein shall have the same meaning as in the
DDA.
[Balance of page intentionally left blank.]
882/015610-0085 ATTACHMENT NO. 1
$29721 02 a08/16/07 Page 3 of 6
above.
WHEREFORE, the parties hereto have executed this Assignment on the date first written
"Assignor"
Lennar Homes of California Inc., a California
corporation
By:
Its:
"Assignee"
CP Development La Quinta, LLC,
a California limited liability company
By: Oliphant Family Trust
Its: Member
By:
Richard R. Oliphant
Its: Trustee
By: Oliphant Enterprises, Inc.
Its: Manager
By:
Richard R. Oliphant
Its: President
882/015610-0085 ATTACHMENT NO. 1
829721 02 a08/16/07 Page 4 of 6
CONSENT
By execution below, the City and Agency hereby consent to the foregoing assignment.
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
CITY OF LA QUINTA, a California municipal
corporation and charter city organized and
existing under the laws of the State of
California
By:
Its: City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
City Attorney
8821015610-0085 ATTACHMENT NO. ]
829721.02 a08/16/09 Page 5 of 6
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PARCELS 2 AND 3 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA,
COUNTY OF RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS,
PAGES 60 TO 66, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND
MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET
BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH
AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 500
FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL
TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON
SUBSTANCES OR MINERALS FROM SAID PROPERTY OR OTHER LANDS, BUT
WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE
PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR
ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH
A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE
PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT
AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137
OFFICIAL RECORDS.
882/015610-0095 ATTACHMENT NO. 1
829721 02 a08/16/07 Page 6 of 6
ATTACHMENT NO.2
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
[Restaurant Parcel 5]
[See following pages]
982/015610-0085
829721 02.08/16/07 ATTACHMENT NO. 2
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
CP DEVELOPMENT LA QUINTA, LLC
77-900 Avenue of the States
Palm Desert, CA 92211
Attn: Richard Oliphant
PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment') is
entered into this _ day of , 2007 (the "Effective Date") by and
between CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company
("Assignor") and Apple Properties, LLC, a North Dakota limited liability company ("Assignee")
with reference to the following:
A. WHEREAS, Assignor is the owner in fee simple of certain property located at 45-
305 Seeley Drive, in the City of La Quinta, California, which is more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference ("Parcel 5").
B. WHEREAS, pursuant to the terms of that certain Disposition and Development
Agreement entered into by and between the Assignee and the La Quinta Redevelopment Agency,
a public body, corporate and politic ("Agency") on or about December 18, 2003, as amended on
or about October 28, 2004, on or about December 7, 2004, on or about November 2, 2005, on or
about October 20, 2006, and on or about the same date hereof (as amended, the "DDA"), the
Agency conveyed Parcel 5 and certain other adjacent real property to the Assignor.
C. WHEREAS, concurrently with the execution of the DDA, the City of La Quinta
("City") and Assignor entered into that certain Development Agreement which was recorded in
the Official Records of the County Recorder for the County of Riverside on January 5, 2004 as
Instrument No. 2004-0005256, and 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 Recorder for the County of Riverside on November 8, 2004 as Instrument No. 2004-
0885063, and that certain Amendment No. 2 to Development Agreement executed on or about
November 17, 2005 and recorded in the Official Records of the County Recorder for the County
of Riverside on December 19, 2005, as Instrument No. 2005-1045418 (as amended, the "DA").
D. WHEREAS, pursuant to the terms of the DDA and DA, Parcel 5 is to be used for
the development of a full -service, sit-down style restaurant offering, at a minimum, lunch (the
"Parcel 5 Restaurant').
E. WHEREAS, Assignor now wishes to transfer and assign to Assignee all of its
rights and obligations under the DDA and DA with respect to Parcel 5 and the Parcel 5
Restaurant.
882/015610-0085 ATTACHMENT NO. 2
829721 02 a08/16/07 Page 1 of 6
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. Assignor hereby assigns to Assignee all of Assignor's rights and responsibilities under
the terms of the DDA and DA with respect to Parcel 5 and the Parcel 5 Restaurant (the
"Assigned Rights and Obligations").
2. Assignee hereby accepts the foregoing assignment of the Assigned Rights and
Obligations, and agrees to be bound by the terms of the DDA and DA to the extent that
such terms affect or are affected by ownership of Parcel 5 and then only to the extent of
the Assigned Rights and Obligations.
3. The parties hereto acknowledge and agree that Assignee shall not be responsible for any
of the obligations of the DDA or DA which arise from ownership of any portion of Parcel
5 which arise prior to the Effective Date hereof. As such, a default by Assignor under the
DDA or DA with respect to Parcel 5 or the Parcel 5 Restaurant prior to the Effective Date
hereof ("Assignor's Default") shall not be deemed a default by Assignee, and Assignor
shall indemnify, defend and hold harmless Assignee from any and all losses, claims or
liability, including without limitation reasonable attorneys' fees and costs, arising from
an Assignor's Default. A default by Assignee under the DDA or DA with respect to
Parcel 5 or the Parcel 5 Restaurant after the Effective Date hereof ("Assignee's Default")
shall not be deemed a default by Assignor, and Assignee shall indemnify, defend and
hold harmless Assignor from any and all losses, claims or liability, including without
limitation reasonable attorneys' fees and costs, arising from an Assignee's Default.
4. Nothing herein or in the DDA or DA constitutes a representation or warranty by the
Agency that the construction of the Parcel 5 Restaurant 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 Assignee expressly waives any right of reimbursement for
any "increased costs" under California Labor Code Section 1781 or otherwise with
respect to Parcel 5 or the Parcel 5 Restaurant. Assignee shall, indemnify, defend, and
hold the Agency harmless, including litigation costs and reasonable attorneys' fees, from
and against any and all claims pertaining to the payment of wages for Parcel 5 or the
Parcel 5 Restaurant.
5. The City and the Agency shall be deemed to be third party beneficiaries of the waiver and
indemnity set forth in Section 4 and the warranty and representation set forth in Section
6.
6. The parties hereto each warrant and represent that they have taken all necessary corporate
action to authorize the execution and performance of this Assignment and that the
individuals executing this document on behalf of the parties are authorized to do so, and
by doing so, create binding obligations as described herein of the party represented.
882/015610-0085 ATTACHMENT NO. 2
829721 02 a08/16/07 Page 2 of 6
7. The terms of this Assignment shall not be amended and this Assignment shall not be
terminated except by written instrument executed by both of the parties hereto, and only
upon the prior written consent of the City and Agency.
8. This Assignment shall be governed by the internal laws of the State of California,
without regard to conflict of law principles.
9. Any defined terns used but not defined herein shall have the same meaning as in the
DDA.
[Balance of page intentionally left blank.]
882/015610-0085 ATTACHMENT NO. 2
829721 02 ao8n6i07 Page 3 of 6
above.
WHEREFORE, the parties hereto have executed this Assignment on the date first written
"Assignor"
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
C
Richard R. Oliphant
Its: President
"Assignee"
"Apple Properties, LLC, a North Dakota limited
liability company
By:
Myron Thompson
Its: President
882/015610-0085 ATTACHMENT NO. 2
829721 02 a08/16/07 Page 4 of 6
CONSENT
By execution below, the City and Agency hereby consent to the foregoing assignment.
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
CITY OF LA QUINTA, a California municipal
corporation and charter city organized and
existing under the laws of the State of
California
By:
Its: City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
City Attorney
1
82ro15610-0085 ATTACHMENT NO. 2
829721 02 eoenem7 Page 5 of 6
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL A:
PARCEL 5 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, COUNTY OF
RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO
66, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM ALL OIL, GAS, HYDROCARBON SUBSTANCES AND
MINERALS OF EVERY KIND AND CHARACTER LYING MORE THAN 500 FEET
BELOW THE SURFACE, TOGETHER WITH THE RIGHT TO DRILL INTO, THROUGH
AND TO USE AND OCCUPY ALL PARTS OF THE PROPERTY LYING MORE THAN 500
FEET BELOW THE SURFACE THEREOF FOR ANY AND ALL PURPOSES INCIDENTAL
TO THE EXPLORATION FOR AND PRODUCTION OF OIL, GAS, HYDROCARBON
SUBSTANCES OR MINERALS FROM SAID PROPERTY OR OTHER LANDS, BUT
WITHOUT, HOWEVER, ANY RIGHT TO USE EITHER THE SURFACE OF THE
PROPERTY OR ANY PORTION THEREOF WITHIN 500 FEET OF THE SURFACE FOR
ANY PURPOSE OR PURPOSES WHATSOEVER, OR TO USE THE PROPERTY IN SUCH
A MANNER AS TO CREATE A DISTURBANCE TO THE USE OR ENJOYMENT OF THE
PROPERTY, AS RESERVED IN THE DEED FROM THE LA QUINTA REDEVELOPMENT
AGENCY, RECORDED DECEMBER 9, 2004 AS INSTRUMENT NO. 2004-0979137
OFFICIAL RECORDS.
PARCEL B:
AN EASEMENT FOR INGRESS AND EGRESS OVER AND ACROSS LOT D (SEELEY
DRIVE) OF PARCEL MAP 31116, IN THE CITY OF LA QUINTA, COUNTY OF
RIVERSIDE, AS PER MAP RECORDED IN BOOK 212 OF PARCEL MAPS, PAGES 60 TO
66, RECORDS OF SAID COUNTY.
882/015610-0085 ATTACHMENT NO. 2
829721 02 s08n6/07 Page 6 of 6
ATTACHMENT NO.3
SCHEDULE OF PERFORMANCE FOR RESTAURANT PARCEL 5
Item of Performance
Time for Completion
1
Developer's submission of complete Site
On or before June 1, 2007.
Development Permit Application for Restaurant
Parcel 5 ("Parcel 5 SDPA"), which will include:
• Detailed Site Plan
• Floor Plans and Layout
• Elevations
• Conceptual Landscaping
2
Review of Parcel 5 SDPA by all applicable City
Agency will review within 21 days
departments.
after Developer's submittal of Parcel 5
SDPA.
3
Agency response to Developer as to City
Within 7 days after Agency's receipt of
comments on Parcel 5 SDPA.
City's final comments on application,
but no later than 28 days after
Developer's submission of Parcel 5
SDPA.
4
Developer comments to Agency Response.
Within 7 days after receipt of Agency's
comments to Parcel 5 SDPA.
5
Developer and City Responses.
Developer will respond to any Agency
or City request within 7 days and
Agency will use reasonable efforts to
cause City to respond to any
submission within 7 days.
6
Agency publishes Notice of Public Hearing for
Within 7 days after City responds to
the Parcel 5 SDPA before the Planning
Developer's comments regarding the
Commission.
Parcel 5 SDPA.
7
Planning Commission's Public Hearing and
Approximately 10 days after first
consideration of Parcel 5 SDPA
publication of notice of the same.
8
City's issuance of Parcel 5 SPDA and final
Within 7 days after approval of Parcel 5
conditions.
SPDA by Planning Commission.
9
Developer's preparation of final grading plan
With 45 days after City issues Parcel 5
and Design Development Drawings for
SDPA and conditions.
Restaurant Parcel 5.
10
Developer's submission of evidence of
Concurrently with Developer's
financing necessary to complete Parcel 5
completion of Design Development
Restaurant.
Drawing for the Parcel 5 Restaurant.
11
Developer's submission of grading and building
Within 7 days after completion of final
permit applications for Restaurant Parcel 5.
1 gradingplan and Desi Development
882/015610-0085 ATTACHMENT NO. 3
82972102 s08/16/07 Page 1 of 2
Drawings for Restaurant Parcel 5.
12
City's issuance of grading permit for Restaurant
Within 42 days after City's receipt of
Parcel
grading permit application for or
Restaurant Parcel 5
13
City's issuance of building permit for Parcel 5
Within 50 days after receipt of building
Restaurant
permit application for Restaurant Parcel
5.
14
Developer commences construction of Parcel 5
Within thirty (30) days after City's
Restaurant.
issuance of building permits for Parcel
5 Restaurant.
15
Completion of Parcel 5 Restaurant.
Within nine (9) months after City's
issuance of building permits for the
Parcel 5 Restaurant.
*Nothing herein shall be construed to limit the City's legislative authority, which City
may exercise, in City's sole and absolute discretion. In all cases where City action is required,
Agency shall use reasonable efforts to cause City to take such action in the time prescribed
herein.
882/015610-0085 ATTACHMENT NO. 3
829721.02 a08/16/07 Page 2 of 2