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2007 CP Development, LLC - Partial termination of right of reverter, power of termination and Amended and Restated Option AgrmtRecording requ0sted by LandAmerica DeveknW Services Subdivision Department PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: VERONICA J. MONTECINO City Clerk / Agency Secretary AND WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency Attn: Veronica J. Montecino P. 0. Box 1504 La Quinta, CA 92247-1504 DOC # 2007-0535552 08/20/2007 08:00A Fee:NC Page t of 7 Recorded in Official Records County of Riverside Larry W. Ward Assessor, County Clerk & Recorder 111111111111 IIII1111111111111111111111III1111111111111 77771 S R U I PAGE I SIZE I DA I MISC I LONG I RFD r COPY M A L 465 1 426 1 PCORI NCOR SMF GCri j F SPACE ABC NG }AG CC_ T: I CTY I UNI I a PARTIAL TERMINATION OF RIGHT OF REVERTER, POWER OF TERMINATION, AND AMENDED AND RESTATED OPTION AGREEMENT CP Development La Quinta, LLC Title of Document THIS AREA FOR RECORDER'S USE ONLY THIS PAGE ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION REQUESTED BY ANI) WHEN RECORDED MAIL TO: La Quinta Redevelopment Agency P.O. Box 1504 La Quinta, CA 92247-1504 Attn: From Recording Fee Pursuant to Government Goae g z /sss PARTIAL TERMINATION OF RIGHT OF REVERTER POWER OF TERMINATION, AND AMENDED AND RESTATED OPTION AGREEMENT This PARTIAL TERMINATION OF RIGHT OF REVERTER, POWER OF TERMINATION, AND AMENDED AND RESTATE�N AGREEMENT ("Partial Termination") is made and entered into this � day of _, 2007 ("Effective Date"), by and between CP DEVELOPMENT LA QUINTA, L C, a California limited liability company ("Developer"), and the LA QUINTA REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency"). RECITALS: A. Developer is the owner of that certain real property located at 45-200 Washington Street, in the City of La Quinta, County of Riverside, State of California, which real property is more particularly described in Exhibit "A" hereto (the "Hotel Property"). B. Pursuant to that certain Disposition and Development Agreement entered into by and between Developer on or about December 18, 2003, as subsequently amended (the "DDA"), and the Grant Deed by which Agency conveyed the Hotel Property to Developer, which was recorded in the Official Records of the County of Riverside, as Instrument No. 2004-0979137 (the "Grant Deed"), Agency has a right of reverter and power of termination with respect to the Hotel Property. C. On or about October 20, 2006, the Developer and Agency executed that certain Amended and Restated Option Agreement, which was recorded against the Hotel Property and against certain adjacent real property, on October 24, 2006, in the Official Records of the County of Riverside, as Instrument No. 2006-0780202. D. Developer and Agency now mutually desire to terminate, with respect to the Hotel Property only, (i) Agency's right of reverter and power of termination pursuant to the DDA and Grant Deed, and (ii) the Amended and Restated Option Agreement. TERMINATION: In consideration of the foregoing Recitals, which are incorporated herein and made a part hereof, and the covenants and promises hereinafter contained, and for good and valuable 882/015610-0085 829826 02 47M/06 consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereby agree as follows: 1. The Agency's right of reverter and power of termination pursuant to Section 607 of the DDA and pursuant to Section 7 of the Grant Deed is hereby terminated and is of no further force and effect with respect to the Hotel Property. 2. The Amended and Restated Option Agreement recorded in the Official Records of the County of Riverside, as Instrument No. 2006-0780202, is hereby terminated and is of no further force and effect with respect to the Hotel Property. 3. Notwithstanding the foregoing, nothing herein is intended to or does terminate (a) Agency's right of reverter or power of termination with respect to any real property other than the Hotel Property that is subject to the DDA or which was conveyed to Developer pursuant to the Grant Deed, or (b) the Amended and Restated Option Agreement with respect to any real property other than the Hotel Property that is encumbered by the Amended and Restated Option Agreement, all of which shall survive the recordation of this Partial Termination. 4. This Partial Termination may be executed in counterparts, each of which, after all the parties hereto have signed this Partial Termination, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. [End — Signature page follows] 882/015610-0085 _ 829826 02 a07/27/06 -2' IN WITNESS WHEREOF, the parties have executed this Partial Termination as of the date first above written. Date:: �I l5 I a-CD7 2007 ATTEST: Agency cretary APPROVED AS TO FORM: R�U7'AN & TUCKER,LLP Attorne or the La Quinta Redevelopment Agency Date: �5 2007 Date: Qu� 15 2007 "AGENCY" LA QUINTA REDEVELOPMENT AGENCY ("Agency") By: >/X Executive Director "DEVELOPER" CP DEVELOPMENT LA QUINTA, LLC, a California limited liability company 882/015610-0085 829826 02 a07/27/06 -3- BY: LANDAR,INC. Its: Member By: ennis D. Fren Its: CEO BY* Equity Directions,Inc. Its: Manjenni r Manage s D.French Its:sident STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On .20,0 before me, ti &e2l Notary Public, personally appea d /g/'r' f /X1 /eP personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/gve subscribed to the within instrument and acknowledged to me that he/96eAh y executed the same in his/weir authorized capacity(ies), and that by his/heawieir signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. Witness my hand and official seal. otary Public [SE.AL] STATE OF CALIFORNIA ss. COUNTY OF RIVERSIDE -Mj�� -: M�_ Notary Public, personally appd'ared BUJ° ns u * /-l'enm > personally known to me ( ) to be the persons whose nameW is/are subscribed to the within instrument and acknowledged to me that he/shefthey executed the same in his/ke"ltkeir authorized capacity{3es}, and that by his/herkheir signatureko on the instrument the personko or the entity upon behalf of which the personv acted, executed the instrument. Witness my hand and official seal. 11 Notary [SEAL] 882/015610-0085 _ 82982:6.02 a0727/06 —4 GOVERNMENT CODE SECTION 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: NAME OF NOTARY: Regenia Hensley NAME OF COUNTY: DATE COMMISSION EXPIRES: 10/23/2008 COMMISSION NUMBER: 1521423 SIGNATURE: DATE VERIFIED: LOCATION VERIFIED: COUNTY: Riverside STATE: California 1W41II LEGAL DESCRIPTION OF PROPERTY All of that certain real property located in the City of La Quinta, County of Riverside, State of California, and further identified as: PARCEL 4 OF PARCEL MAP NO. 31116, IN THE CITY OF LA QUINTA, AS SHOWN BY MAP ON FILE IN BOOK 212 PAGES 60 TO 66 INCLUSIVE OF PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY CALIFORNIA. EXCEPTING THEREFROM 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- 979137 OFFICIAL RECORDS. APN: 604-040-067-9 and 604-040-070-1 and 604-040-074-5 EXHIBIT "A" 882/015610-0085 829826.02 a07/27/06 Page 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 23`d day of August, 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. I 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 "DX). 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 838332.01 a08/16/07 -1- 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. 8SM15610-0085 838332.01 a08/16/07 -2- 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.] 8821015610.0085 838332.01 a08/16/07 -3- 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: , o Richard R. Oliphant Its: Trustee By: Oliphant Enterprises, Inc. Its: Manager By: Richard R. Oliphant Its: President "Assignee" "Apple Properties, LLC, a North Dakota limited liability company By: Myron Thompson Its: President 8821015610.0085 838332.01 209/16/07 -4- State of California CALIFORNIA ALL-PURPOSE County of, ss' CERTIFICATE OF ACKNOWLEDGMENT On A j%1' * a.� t o`��� before me, lam. 6 \(` P, " 1, (OFP2 Date Printed Name of Notary Public personally appeared Vpersonally known tome -or - ❑ proved to me on the basis of satisfactory evidence: ❑ form(s) of identification ❑ credible witnesses) to be the person, vrwhose narriis/afe•subscribed to the within instrument and acknowledged to me that he/s4eAhey executed the same in hisA&ftheir authorized capacity(ies} and that by his/heW41ilteir signatures} on the instrument the person(s}, or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. CANo10E R. BORCENA CornmWlon r/ 1593376 0Notary Public • CoolorNa RN01i County - r+NCamm•Exptreahn29, Signature of Notary Public (seal) OPTIONAL INFORMATION Although the information in this section is not required bylaw, 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 �"j Acknowledgment is attached to a document % titled/for the purpose of W PU11�mlmk_ containing _(9—pages, and dated capacity or authority is/are as: ❑ Attorney -in -fact ❑ Corporate Officers) ❑ Guardian/Conservator ❑ Partner-Limited/General ❑ Trustee(s) ❑ Other: representing: Names) of Person(s) or Enhtyhes) Signer is Representing 0 Copyright 2004 Notary Rotary, Inc 925 29th St, Des Moines, IA 50312-3612 Form ACK02 02/04 To re -order, call toll -free 1-871-349-6588 or visit us on the Internet at mtpnwwwrnenotarysnop com 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 By: Richard R. Oliphant Its: President "Assignee" "Apple Properties, LLC, a North Dakota limited liability company, By: My3 n Thom on Its: Pre dent 882/015610-0085 838332.01 a08/16/07 -4- ACKNOWLEDGMENT STATE OF NORTH DAKOTA ) ) ss: COUNTY OF WARD ) On Au q st z o 2007, before me, Leah g e � 1c %- c, , a Notary Public personally appeared ►� y o neson 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. LEAH BJERKLIE d�0. oily pHp_ Noiary Pabk Not Public I'M y Gant�ab �N = 4, � Notary By execution below, the City and Agency hereby consent to the foregoing assignment. LA QUINTA REDEVELOPMENT AGENCY, a public boZfw-)ed�ly� rate and politic By: — Its: Executivobirector RUTAN & TUCKER, LLP Attorneys for the La Quinta Redevelopment Agency CITY OF LA QUINTA, a California municipal corporation and charter city organized and existing under the laws of the State of California --) APPROVED,AS TO FORM: RUTAN & TUCKER, LLP City Attorney 882/015610-0085 938332.01 a08n6/0Y -5- 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: Executive Director ATTEST: Agency Secretary APPROVED AS TO FORM: RUT N & TUCKS 7P Attmeys for a La Quinta kedevelopment Agency 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: RUT & TUCI , LLP ty Attorn y 882/015610-0085 838330.01 a08116/07 -5- 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. 882/0156IM085 839332 01 a08/16/07 EXHIBIT "A"