Washington-Adams LP/OPA 91OWNER PARTICIPATION AGREEMENT
by and between the
LA PUINTA REDEVELOPMENT AGENCY,
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AGENCY,
and
WASHINGTON/ADAMS, L.P.,
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PARTICIPANT
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TABLE OF CONTENTS
I.
[§100] SUBJECT OF AGREEMENT
A.
[§101] Purpose of Agreement
B.
[§102] The
Redevelopment Plan
C.
[§103] The
Project Area
D.
[§104]I The
Site
E.
[§105] Parties to the Agreement
1. [�106]
The Agency
2. [5107]
The Participant
3. [II§108]
Prohibition Against Change in
Ownership, Management and Control of
Participant
II.
[§200]; DEVELOPMENT OF THE SITE
A.
[§2011i Development of the Site by the Participant
1. [§202]
Scope of Development
2. t§203]
Design Concept Drawings; Design Review
Board
3. �§204]
Construction Drawings and Related
Documents
4. �[§205]
Agency Approval of Plans, Drawings, and
Related Documents
5. ![§206]
Cost of Construction
6. 11§2071
Construction Schedule
7. [§208]
Indemnification During Construction;
Bodily Injury and Property Damage
Insurance
8. [§209]
City and Other Governmental Agency
Permits
9. A §210]
Rights of Access
(i)
IV.
V.
A.
B.
C.
D.
B.
C.
D.
E.
W
B.
10. [§01] Local, State and Federal Laws
11. [§�12] Antidiscrimination During Construction
[§213] Submission of Evidence of Agreements by
Major Retailers
[§214],
Taxes, Assessments, Encumbrances and Liens
[§215]
Prohibition Against Transfer of the Site,
the Buildings or Structures Thereon and
Assignment of Agreement
[§216],'
Certificate of Completion
[§217]
Adjustments to Conditions
[§300]
FINANCING CI G OF THE INFRASTRUCTURE IMPROVEMENTS
[§301]
Participant Infrastructure Improvements
[§302]j
Agency Infrastructure Improvements
[§303]'
Conditions Precedent
[§304)1i
Brokers
[§400)
USE OF THE SITE
[§401)
Uses
[§402)
Effect and Duration of Covenants
[§4031
Maintenance of the Site
[§404]
Rights of Access
[§4051
Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
[§500]
GENERAL PROVISIONS
[§507]
Notices, Demands and Communications Among
the Parties
[§502]
Conflicts of Interest
C.
D.
VI.
A.
B.
C.
D.
E.
[§503] Enforced Delay; Extension of Times of
Performance
[§504] Nonliability of Officials and Employees of
the Agency
[§600]; DEFAULTS AND REMEDIES
[§601] Defaults -- General
[§602] Legal Actions
1. [§603] Institution of Legal Actions
2. [$604] Applicable Law
3. [§605] Acceptance of Service of Process
[§606] Rights and Remedies Are Cumulative
[§607] Inaction Not a Waiver of Default
[§608]' Remedies and Rights Prior to Conveyance
1. [;§609] Damages
2. [1 610] Specific Performance
3. �§6111 Termination by the Participant
4. (§612] Termination by the Agency
[§700) SPECIAL PROVISIONS
[§7011 Submission of Documents to the Agency for
Approval
[§702] Amendments to this Agreement
[§800] ENTIRE AGREEMENT, WAIVERS
[§9001 TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
ATTACHMENTS
Attachment
No.
11,
Map
Attachment
No.
2i
Legal Description
Attachment
No.
3'
Schedule of Performance
Attachment
No.
4'
Scope of Development
Attachment
No.
5
Certificate of Completion
Attachment
No.
6,
Agreement To Be Recorded Affecting Real
Property
Attachment
No.
7
Agreements With Taxing Agencies
(iv)
OWNER PARTICIPATION AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into by
and between the II,A QUINTA REDEVELOPMENT AGENCY, a public body,
corporate and politic (the "Agency"), and WASHINGTON/ADAMS
L.P., a California limited partnership (the "Participant") and
is effective as of , 1991 (the "Effective
Date"). The Agency and the Participant hereby agree as follows:
I. [§100] SUBJECT OF AGREEMENT
A. [§101] Purpose of Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan (as hereinafter defined) for the La Quinta
Redevelopment Project Area No. 2 (the "Project") by providing
for the developmjent of certain property situated within the
Project Area (the "Project Area") of the Project. That portion
of the Project Area to be developed pursuant to this Agreement
(the "Site") is'depicted on the "Map", which is attached hereto
as Attachment No. 1 and incorporated herein by reference. This
Agreement is entered into for the purpose of developing the
Site and not for speculation in land holding. Completing the
development on the Site pursuant to this Agreement is in the
vital and best interest of the City of La Quinta, California
(the "City") and the health, safety, morals and welfare of its
residents, and in accord with the public purposes and
provisions of applicable state and local laws and requirements
under which theProject has been undertaken.
B. [§102] The Redevelopment Plan
The Redevelopment Plan was approved and adopted on May
16, 1989 by Ordinance No. 139 of the City Council of the City
of La Quinta; said ordinance and the Redevelopment Plan as so
approved (the "!Redevelopment Plan") are incorporated herein by
reference.
C. [§103] The Project Area
The "Project Area" is located in the City of
La Quinta, California (the "City") the exact boundaries of
which are specifically described in the Redevelopment Plan.
D. [§104) The Site
The Site is that portion of the Project Area
designated on he Map (Attachment No. 1) and described in the
"Legal Description", which is attached hereto as Attachment
No. 2 and is incorporated herein by reference.
E. [§105] Parties to the Agreement
1. [§106] The Agency
The Agency is a public body, corporate and
politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community
Redevelopment La of the State of California. The principal
office of the La
is located at 78-105 Calle Estado,
La Quinta, California 92253.
"A ency", as used in this Agreement, includes the
La Quinta Redevelopment Agency, and any assignee of or
successor to its '',rights, powers and responsibilities.
2. [§107] The Participant
For the purposes of this Agreement, the
Participant is W4shington/Adams L.P., a California limited
partnership.
All correspondence pertaining to this Agreement shall
be sent to the Participant's principal office in care of
Transpacific Development Company, 2377 Crenshaw Boulevard,
Suite 300, Torrance, California 90501, or such address as may
be specified or Amended by the Participant upon written
notification to the Agency.
3. [§108] Prohibition Against Change in
Ownership, Management and Control of
Participant
The qualifications and identities of the
Participant and its associates are of particular interest to
the Agency. It is because of these qualifications and
identities that the Agency has entered into this Agreement with
the Participant— Consequently, no person, whether a voluntary
or involuntary successor of Participant shall acquire any
rights or powers under this Agreement nor shall the Participant
assign all or any part of this Agreement, without the prior
written approval of the Agency which shall not be unreasonably
withheld. Unless such assignment is approved by Agency acting
in its discretion, the current Participant managing agent must
retain management control of the Participant. Any purported
transfer of control, voluntarily or by operation of law, except
with the prior written consent of the Agency, shall render this
Agreement absolutely null and void and shall confer no rights
whatsoever upon Any purported assignee or transferee.
In�the absence of specific written agreement by
the Agency, no such transfer, asssignment or approval by the
Agency shall be deemed to relieve the Participant or any other
party from any obligation under this Agreement.
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All of the terms, covenants and conditions of
this Agreement shall be binding upon and shall inure to the
benefit of the Participant and the permitted successors and
assigns of the Participant. Whenever the term "Participant" is
used herein, such term shall include any other permitted
successors and assigns as herein provided.
The restrictions of this Section 108 shall
terminate and be',of no further force and effect upon the latter
of (i) opening of a full -service Walmart Department Store of an
estimated 126,OO6 square feet but not less than 120,000 gross
leasable area on,the Site and (ii) the issuance by the Agency
of a Certificate of Completion for completion of "Stage Two",
as hereinafter defined in the Scope of Development (Attachment
No. 4), pursuant to Section 216 of this Agreement.
II. [§200] DEVELOPMENT OF THE SITE
A. [§201] Development of the Site by the Participant
1. [§202] Scope of Development
The Participant shall, by the respective times
established therefor in the Schedule of Performance (Attachment
No. 3): (i) commence and complete or cause to be commenced and
completed all of the "Participant Improvements", all as more
fully described in the "Scope of Development", which is
attached hereto as Attachment No. 4 and is incorporated herein
by reference; (ii) complete development of "Stage One" (as
defined in the Scope of Development (Attachment No. 4);
(iii) cause the opening of Walmart, the "Market," and the
"Pharmacy" stores which conform to the requirements of this
Agreement; (iv) cause the completion of "Stage Two" (as defined
in the Scope of D velopment (Attachment No. 4). The Market
shall be an Alber sons and the Pharmacy shall be a Payless
Drugs; provided, however, if a market operator other than
Albertsons, but of like reputation and sales or a pharmacy
operator other than Payless, but of like reputation and sales
is selected by Participant, the Parties shall confer in good
faith so as to obtain approval for such substitution by the
Agency. In the event that Participant secures an agreement
with such an alternative to an Albertsons and/or a Payless
Drugs, the Agency ',shall have the authority to determine the
"comparable" nature of said alternative. The Agency shall
exercise good faith and consider the information provided by
the Participant as well as such other information -- for
example, the size 'of the corporation, or the number of units in
Southern California regional advertising -- as the Agency shall
deem appropriate. In the event that the Participant, acting in
its reasonable discretion, submits for approval to Agency,
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instead of an alternate Market or Pharmacy operator, a retail
tenant of comparable regional reputation as Albertsons and/or
Payless Drugs, and the average annual retail sales are
reasonably expected to be of comparable quality and to generate
comparable sales tax revenues to the City or the Agency as is
estimated for the Albertsons and/or Payless Drugs operation,
then notwithstanding the fact that such alternate businesses
are not in the same business as a Market or a Pharmacy the
Agency shall confer in good faith with Participant to determine
if the financial,projections for the Project sales tax
generation are likely to be substantially unaffected, and upon
such determination shall not unreasonably withhold its approval
for substitution, Following such approval by the Agency such
business shall be deemed to be a Market or a Pharmacy,
respectively, for purposes of satisfying the obligations of
Participant pursuant to this Agreement.
As'of the time established in this Agreement for
completion of the Participant Improvements (as hereafter
defined in the Scope of Development (Attachment No. 4), the
Participant shall have: (a) developed on the Site a retail
center consisting of approximately 617,694 square foot, and not
less than 553,500 square feet having a taxable, assessed value
of not less than,Ten Million Dollars ($10,000,000); and
(b) completed the Participant Improvements in conformity with
this Agreement, including, without limitation, the Scope of
Development (Attachment No. 4).
The Participant shall construct or cause to be
constructed the ',Participant Improvements in compliance with all
the zoning, planning and design review requirements of the City
of La Quinta, the Redevelopment Plan and the Municipal Code of
the City of La Quinta.
All construction undertaken on the Site or as
part of the Participant Improvements shall conform to all
conditions and requirements of: Specific Plan 89-014
("Specific Plan"), Tentative Parcel Map 25865, Plot Plan 90-434
("Plot Plan"), the applicable provisions of the Municipal Code
of the City, all the terms of all approvals or permits
hereafter granted by the City in relation to the Site all of
such approvals, 'conditions, and permits shall be collectively
referred to herein as the "Project Approvals".
2. 1§2031 Design Concept Drawings; Design Review
Board
By the respective times set forth therefor in the
Schedule of Performance (Attachment No. 3), the Participant
shall prepare and submit to the Agency for its approval Design
Concept Drawings and related documents containing the overall
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plan for development of the Site in sufficient detail to enable
the Agency to evaluate the proposal for conformity to the
requirements of this Agreement.
Deign Concept Plans are those plans that are
schematic in nature and are prepared exclusively for use during
the project formulation and feasibility evaluation stage to
graphically communicate development intent.
The Site shall be developed as established in
this Agreement and such documents except as changes may be
mutually agreed :pon between the Participant and the Agency.
Any such changeslshall be within the limitations of the Scope
of the Development (Attachment No. 4). Without necessity of
obtaining further consent of the Participant, the Agency may
designate the City to act on its behalf to review plans
submitted pursuant to this Agreement for processing in
accordance with the normal processing used by the City.
Any Infrastructure Improvements which require the
approval of Caltr,ans shall be accomplished in conformity with
the requirements',as shall be established by Caltrans.
By the respective times established therefor in
the Schedule of Performance (Attachment No. 3), the Participant
shall prepare and, submit the Design Concept Drawings,
elevations, and related documents concerning the development of
the Site to the Design Review Board, the Planning Commission,
and the City Council for approval at their discretion.
In the event of disapproval, the Participant
shall revise the submission and resubmit to the Design Review
Board, the Planning Commission, and the City Council as soon
thereafter as possible; provided, however, if the changes
required do not carry out the theme of the Specific Plan and/or
the Plot Plan, the Participant may terminate this Agreement
pursuant to the provisions of Section 611 herein.
3. [§204] Construction Drawings and Related
Documents
By the time set forth therefor in the Schedule of
Performance (Attachment No. 3), the Participant shall prepare
and submit to the'',City Community Development Department
(Planning Division) construction drawings, landscape plan, and
related documents', for development of the Site for architectural
review and written approval. Approval of the drawings and
specifications, as provided in the Schedule of Performance
(Attachment No. 3), will be granted if they conform to
applicable building and zoning requirements and to the Design
Concept Drawings theretofore approved. Any items so submitted
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and approved in Writing by the City Planning and Development
Department shall not be subject to subsequent disapproval by
the Agency.
During the preparation of all drawings and plans,
staff of the Agency and the Participant shall hold regular
progress meetings to coordinate the preparation of, submission
to, and review of drawings, plans and related documents by the
Agency. The staff of Agency and the Participant shall
communicate and consult informally as frequently as is
necessary to insure that the formal submittal of any documents
to the Agency can receive prompt and speedy consideration.
If any revisions or corrections shall be required
by the City Planning and Development Department or any other
official, agencyr department, division or bureau of the City of
La Quinta having,jurisdiction, the Participant shall cooperate
to accommodate such requirements; provided, however, if the
changes required do not carry out the theme of the Specific
Plan and/or the Plot Plan, the Participant may terminate this
Agreement pursuant to the provisions of Section 611 herein.
4. [§205] Agency Approval of Plans, Drawings, and
Related Documents
The Agency hereby delegates to the City the right
to approve and/or disapprove architectural and planning review
of all the Design Concept Drawings, including any changes
therein.
Provided that the submissions by the Participant
are made timely and are complete, the Participant shall be
entitled to receive approval or disapproval of the Design
Concept Drawings within the times established in the Schedule
of Performance (Attachment No. 3). Any disapproval shall state
in writing the reasons for disapproval. The Participant, upon
receipt of a disapproval based upon powers reserved by the
Agency hereunder, shall revise such portions and resubmit to
the City as soon', as possible after receipt of the notice of
disapproval as provided in the Schedule of Performance
(Attachment No. 3); provided, however, if the changes required
do not carry out the time of the Specific Plan and/or the Plot
Plan, the Participant may terminate this Agreement pursuant to
the provisions of Section 611 herein.
The times set forth herein for review or approval
of plans submitted for the development of the Site and all
improvements contemplated by this Agreement assume that the
plans submitted are complete and in sufficient detail, with
engineering data or other support as necessary, to enable staff
to review the plans in an expeditious manner. If the plans and
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supporting data are not so complete, then, notwithstanding any
provision of this Agreement to contrary effect, the times set
forth in this Agreement for the review and approval of plans
shall be deemed extended by the period(s) until complete plans
and supporting data are submitted.
5. [§206] Cost of Construction
Except to the extent otherwise expressly set
forth in Section 302 of this Agreement, all of the cost of
planning, designing, developing and constructing all of the
Participant Improvements, and all demolition and site
preparation costs, shall be borne by the Participant. The
Participant shall complete or cause to be completed all of the
improvements set forth in the Scope of Development (Attachment
No. 4) to be constructed on the Site (the "On -Site
Improvements") and those infrastructure improvements required
in connection with the City's entitlement process to be
provided by the Participant or otherwise described in this
Scope of Development (the "Infrastructure Improvements").
Those of the Infrastructure Improvements constructed off the
Site constitute the "Off -Site Improvements." All improvements
set forth in part II of the Scope of Development (Attachment
No. 4) (including all of the On -Site Improvements and the
Infrastructure Improvements), together constitute the
"Participant Improvements."
Cost overruns, if any, as may be incurred in
connection with the development contemplated by this Agreement
shall be borne by the Participant without participation by the
Agency or the City.
The Infrastructure Improvements consist of two
groups, as follows: (i) the "Agency Infrastructure
Improvements", and (ii) the "Participant Infrastructure
Improvements." The Agency Infrastructure Improvements consist
of those certain improvements described in Addendum No. 1 to
Attachment No. 4. The Participant Infrastructure Improvements
consist of all infrastructure improvements required by the
Project Approvals. In addition to the Participant
Improvements, the, Participant shall dedicate to the respective
public or quasi -public agencies intending to be the end users,
at no cost, the well site required by the Coachella Valley
Water District, being parcel A of Parcel Map 25865 (to be
recorded) and the 'electrical substation parcel required by the
Imperial Irrigation District, being Parcel F of that same map.
The 'cost of constructing the "Infrastructure
Improvements," as herein defined, shall be borne by the
Participant; provided that Section 302 of this Agreement shall
be applicable according to its terms. The Participant assumes
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the responsibility for the construction of, and shall let
contracts for, or cause contracts to be let for, the "Agency
Infrastructure Improvements" as hereafter defined in the Scope
of Development (Attachment No. 4) substantially in conformity
with procedures to be pre -approved by the Agency. The cost of
constructing the 'Agency Infrastructure Improvements shall be
borne by the Agency up to the limit established herein, and all
additional costs incurred for any reason shall be at the sole
cost and expense of the Participant.
The Participant additionally assumes all
obligation for ensuring conformity with all applicable
nondiscrimination, labor standard, and wage rate requirements
with respect to the "Agency Infrastructure Improvements" (as
hereafter defined in the Scope of Development (Attachment
No. 4).
6. [§207) Construction Schedule
After the effective date of this Agreement, the
Participant shall promptly begin and thereafter diligently
prosecute to completion the construction of the Participant
Improvements and 'the development of the Site. The Participant
shall begin and complete all construction and development
within the respective times specified therefor in the Schedule
of Performance (Attachment No. 3). In any event, Participant
shall complete all construction and development of the
Participant Improvements no later than the respective times
provided therefore in the Schedule of Performance (Attachment
No. 3).
7. [§208] Indemnification During Construction;
Bodily Injury and Property Damage
Insurance
During periods of construction on the Site and
until such time as the Agency has issued to the Participant the
Certificate of Completion (as provided for in Section 216 of
this Agreement) for the construction of improvements on the
Site, the Partici ant shall defend, assume all responsibility
for and hold the Mncy, its officers and employees, harmless
from, all claims or suits for, and damages to, property and
injuries to persons, including accidental death (including
attorneys fees and costs), arising from or as a result of the
death of any persons or any accident, injury, loss, or damage
whatsoever causedto any person or to the property of any
person which shall occur on or adjacent to the Site; provided,
however, in the event the Agency and the Participant are
jointly negligent and/or jointly engaged in wilful acts or
omissions giving rise to the claims for which the above
indemnity is given, then each Party shall bear its pro-rata
share of liability.
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Prior to the commencement of construction on the
Site, the Participant shall furnish or cause to be furnished to
the Agency duplicate originals or appropriate certificates of
Worker's Compensation Insurance, if applicable, and
certificates of bodily injury and property damage insurance
policies in the amount of at least THREE MILLION DOLLARS
($3,000,000) combined single limits naming the Agency and the
City as additional insureds. If such insurance is a "claims
made" policy, itlshall be kept in force until the Agency has
issued the Certificate of Completion (Attachment No. 5) with
respect to each Stage of the work in accordance with the
provisions herein contained. The insurance shall include an
endorsement that ,it is primary, and not contributing with any
insurance maintained by the Agency. The certificate of
insurance shall additionally contain a statement of obligation
on the part of the carrier to notify the Agency of any material
change, cancellation or termination of the coverage at least
thirty (30) days,in advance of the effective date of such
material change, cancellation or termination.
The! Participant shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency
that any contractor with whom it has contracted for the
performance of work on the Site or otherwise pursuant to this
Agreement carries workers' compensation insurance as required
by law.
8. [§209] City and Other Governmental
Agency Permits
Before commencement of construction or
development of any buildings, structures or other works of
improvement upon the Site or within the Project Area, the
Participant shall, at its own expense, secure or cause to be
secured any and a4 permits which may be required by the City
or any other governmental agency affected by such construction,
development or work.
9. [§210] Rights of Access
Representatives of the Agency and the City shall
have the right of'ireasonable access to the Site, without
charges or fees, At normal construction hours during the period
of construction for the purposes of this Agreement, including,
but not limited to, the inspection of the work being performed
in constructing the improvements, so long as they comply with
all safety rules. Such representatives of the Agency or of the
City shall be those who are so identified in writing by the
Executive Director of the Agency.
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10. [§211] Local,_ State and Federal Laws
The Participant shall carry out the construction
of the improvements in conformity with all applicable laws,
including all apt.,
licable federal and state labor standards,
provided, how( Participant and its contractors, successors,
assigns, transferees, and lessees are not waiving their rights
to contest any such laws, rules or standards.
11. [§212] Antidiscrimination During Construction
The Participant, for itself and its successors
and assigns, agrees that in the construction of the
improvements provided for in this Agreement, the Participant
will not discriminate against any employee or applicant for
employment and shall comply with the antidiscrimination
provisions of Section 33050 of the Community Redevelopment Law
("Redevelopment Law") commencing at Section 33000 of the Health
and Safety Code of the State of California.
B. [§213] Submission of Evidence of Agreements by
Major Retailers
Within the time established therefor in the Schedule
of Performance (Attachment No. 3), Participant shall submit
fully executed agreements between the Participant and Walmart,
the Market and t e Pharmacy (and/or the alternate uses
permitted pursuant to Section 202). These respective
agreements shall', provide for: the development and operation of
a full service Walmart Department Store consisting of an
estimated 126,000 square feet but not less than 120,000 square
feet; the development and operation of the Market consisting of
an estimated 42,500 square feet, but not less than 30,000
square feet; andthe development and operation of the Pharmacy
consisting of an',estimated 27,500 square feet but not less than
24,000 square feet. Participant acknowledges that a Walmart
Department Store', is a material inducement for Agency's
participation in this Agreement. The Agency staff shall
approve or disapprove such alternate users within twenty (20)
days of receipt Of the agreements submitted.
C. [§214] Taxes, Assessments, Encumbrances and Liens
The Participant shall pay when due all real estate
taxes and assessments on the Site, except when such taxes and
assessments are 6ontested in good faith in accordance with
law. The Participant shall hold harmless the Agency from and
against any liability or claim with respect to real estate
taxes or assessment in connection with the Site or Participant
Improvements thereon. The Participant shall remove or have
removed any levy or attachment made on any of the Site or any
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part thereof, or',assure the satisfaction thereof within a
reasonable time 'but in any event prior to a sale thereunder.
D. [§215] Prohibition Against Transfer of the Site,
the Buildings or Structures Thereon and
Assignment of Agreement
Prior to the issuance by the Agency of a Certificate
of Completion (pursuant to Section 216 of this Agreement) as to
any building or structure, the Participant shall not, except as
permitted by this Agreement, without prior approval of the
Agency make any total or partial sale, transfer, conveyance,
assignment or lease of the whole or any part of the Site or of
the buildings or structures on the Site. The approval of the
Agency may be given by the governing board of the Agency or by
the Executive Director of the Agency. Upon receipt of request
for such approval in connection with any such total or partial
rule, transfer, conveyance, assignment or lease, and following
receipt of written request therefor by the Participant, the
Agency will consider whether to give such approval.
Notwithstanding the foregoing, the Agency designates Walmart
Department Store,', Albertsons Market, Payless Drugs, Mobil,
Shell, or equivalent service station operators as determined in
good faith by the,, Agency, and the American Automobile
Association as pre -approved operators, and agrees that the
prohibitions of this Section 215 shall not apply to conveyance,
leases, or transfers to those pre -approved operators for
development and operation in conformity with this Agreement.
E. [§216] Certificate of Completion
Promptly after completion of all construction and
development for each Stage of construction identified as such
in Attachment No.',3 and required by this Agreement to be
completed by the Participant upon the Site in conformity with
this Agreement, the Agency shall furnish the Participant with a
Certificate of Completion upon written request therefor by the
Participant. Such Certificate shall be substantially in the
form of Attachment No. 5 hereto. The Agency shall not
unreasonably withhold any such Certificate of Completion. Such
Certificate of Completion shall be a conclusive determination
of satisfactory completion of that Stage of construction
required by this Agreement upon the Site and the Certificate of
Completion shall so state. The Agency may also furnish the
Participant with a Certificate of Completion for portions of
the improvements upon the Site as they are properly completed
and ready to use if the Participant is not in default under
this Agreement. After recordation of such Certificate of
Completion, any party then owning or thereafter purchasing,
leasing or otherwise acquiring any interest therein shall not
(because of such ownership, purchase, lease or acquisition),
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incur any obligation or liability under this Agreement except
that such party shall be bound by any covenants contained in
and/or referenced in the Agreement To Be Recorded Affecting
Real Property (Attachment No. 6) or other documents
establishing covenants on the Site in accordance with the
provisions of Section 401 of this Agreement, which shall be
applicable according to its terms.
The Certificate of Completion shall not be withheld or
delayed by the Agency unless the Participant has not then
satisfactorily completed the construction required by this
Agreement in compliance with the terms and provisions hereof
and the approved 'architectural, landscape, site, and
construction planes, drawings, and specifications for the
development of thje Site (if applicable).
If the Agency refuses or fails to furnish a
Certificate of Completion for the Site, or part thereof, after
written request from the Participant, the Agency shall, within
thirty (30) business days of written request therefor, provide
the Participant with a written statement of the reasons the
Agency refused or failed to furnish a Certificate of
Completion. The statement shall also contain Agency's opinion
of the actions the Participant must take to obtain a
Certificate of Completion. If the reason for such refusal is
confined to the immediate availability of specific items of
materials for landscaping, the Agency will issue its
Certificate of Completion upon the posting of a bond by the
Participant with the Agency in an amount representing a fair
value of the workjnot yet completed. If the Agency shall have
failed to provide such written statement within said thirty
(30) day period, the Participant shall be deemed entitled to
the Certificate of Completion.
Such Certificate of Completion shall not constitute
evidence of compliance with or satisfaction of any obligation
of the Participant to any holder of any mortgage, or any
insurer of a mortgage securing money loaned to finance the
improvements, or any part thereof. Such Certificate of
Completion is not'ja notice of completion as referred to in the
California Civil Code, Section 3093.
F. [§2171 Adjustments to Conditions
1. The 'Participant has indicated to the Agency that
it will not proceed with the development of the Participant
Improvements unless certain conditions of approval are modified
or eliminated; such conditions to be modified or eliminated,
which shall be designated as the "217(a) Conditions", are set
forth in AddendumIo. 2 to the Scope of Development (Attachment
No. 4). The Participant acknowledges that formal action by the
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City would be required to delete or modify the 217(a)
Conditions, and that such deletion or modification will not be
accomplished by the approval of this Agreement.
In the event the 217(a) Conditions are not
deleted or modified in a manner mutually acceptable to the
parties by the 180th day after the approval of this Agreement
by the Agency, the Participant may, at its option, terminate
this Agreement pursuant to Section 611 of this Agreement. If
the 217(a) Conditions are not modified or deleted but the
Participant does not terminate this Agreement by the earlier of
(i) the 180th day after the approval of this Agreement by the
Agency or (ii) the last day this Agreement may be terminated
pursuant to Section 611, it shall proceed subject to all
conditions (other than the 217(b) Conditions) including without
limitation the 217(a) Conditions.
2. The Agency and the Participant consent and agree
to the deletion of those conditions designated as "217(b)
Conditions" in Addendum No. 2 to the Scope of Development
(Attachment No. 4). The Agency shall cooperate with the
Participant to request that the City delete those 217(b)
Conditions from the conditions of approval.
III. [§300] FINANCING OF THE INFRASTRUCTURE IMPROVEMENTS
A. [§301] Participant Infrastructure Improvements
The Participant shall bear the entire cost
of the Participant Infrastructure Improvements except to the
extent of assistance to be provided by the Agency pursuant to
this Agreement with respect to the Agency Infrastructure
Improvements. It is contemplated by the parties to this
Agreement that financing for the Participant Infrastructure
Improvements will be accomplished by the sale and delivery of
bonds issued pursuant to the Mello -Roos Community Facilities
District Act of 1982, secured by special taxes imposed on
privately -owned portions of the Site ("Infrastructure Bonds").
In the event the Participant elects to obtain such financing,
then the Participant shall provide a cost deposit to the Agency
or other issuing entity, including the City, in the amount
established in City policy for the initiation of such financing
district formation, and in such event the Agency shall support
the issuance of Infrastructure Bonds. In order to facilitiate
the formation of the district and issuance of bonds if such
election is made, the Participant shall support, execute
petitions for, and refrain from protesting the formation of the
district or the levy of a special tax in connection with the
issuance of the Infrastructure Bonds. Notwithstanding the
foregoing, the Participant may elect to obtain private
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financing in lieu of the Infrastructure Bonds. The Agency
agrees to cooperate with the Participant to serve as the
issuer, or in seeking City approval and authorization to serve
as the issuer of such Infrastructure Bonds; provided, however,
neither the Agency nor the City shall have any obligation or
liability with respect to the Infrastructure Bonds. In the
event the Agency is the issuer of the Infrastructure Bonds, to
the extent legally allowable, the Agency agrees to execute
acquisition agreements which will obligate the Agency to
reimburse the Participant for the costs of the Infrastructure
Improvements for which the Participant paid the costs in
advance of the time the proceeds from sale of the
Infrastructure Bonds was available, and to provide to any
lender selected by the Participant to initially finance that
such Infrastructure Improvements all appropriate documents or
instruments evidencing this obligation such such lender may
reasonably request to implement the obligations of the Agency
hereunder. If Infrastructure Bonds are issued, it is mutually
understood and agreed that: (i) the entire cost of such
financing, including without limitation costs of issuance, debt
service, and financial advisement of the Agency, shall be borne
by the Participant (provided that the Agency and the City shall
retain sole authority to select bond counsel and financial
adviser) and to the extent permissible by law all such
incidental costs, including the cost of developer's counsel,
shall be reimbursed to Participant by proceeds of the sale of
the Infrastructure Bonds; (ii) the bonds shall be unrated
unless Participant requests that a rating be obtained (so long
as such rating is reasonably obtainable without provision of
credit enhancement by Agency or City or the incurring of
further obligations by Agency or City); and (iii) neither the
Agency nor the City shall have any liability, contingent or
otherwise, concerning or with respect to such Infrastructure
Bonds.
In the event the Infrastructure Bonds have
not been issued by the time established in the Schedule of
Performance for the satisfaction of the Conditions Precedent
(Attachment No. 3), the Participant shall use its best efforts
to obtain other financing for the Participant Infrastructure
Improvements.
B. [§302] Agency Infrastructure Improvements
1. The Parties have agreed that it is appropriate
and reasonable, given the cost and benefits of the undertakings
pursuant to this Agreement and the regional benefits of certain
of the "Agency Infrastructure Improvements" (as defined in the
Scope of Development, Attachment No. 4), that the Agency bear
certain cost of the Agency Infrastructure Improvements. The
parties further agree and acknowledge that it would result in
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greater cost to moth parties, delay, and frustration of the
completion of the undertakings pursuant to this Agreement if
the Agency were to directly undertake the construction of the
Agency Infrastructure Improvements. The Parties agree,
therefore, that the Participant shall construct, or cause to be
constructed, the Agency Infrastructure Improvements. If,
however, the Participant is in default of its obligations for
construction of the Agency Infrastructure Improvements, for
which default a cure has not been commenced by Participant
within thirty (30) days after notice of default given by the
Agency, the Agency may in such event, at its sole option
thereafter, elect to construct certain or all of the Agency
Infrastructure Improvements. If the Agency should hereafter
elect to construct any of the Agency Infrastructure
Improvements, it shall notify the Participant of such election
when made.
2. The Parties further agree that, due to (i) the
interrelationship among the On -Site Improvements, the
Participant Infrastructure Improvements, and the Agency
Infrastructure Improvements and (ii) to simplify disbursement
procedures, public funds will be expended with respect to this
Agreement only when defined and completed portions of the
Participant Improvements, as such defined and completed
portions are identified in this Agreement have been first
completed. Because of the timing of Agency Assistance, the
parties agree that the Participant shall have the right to
advance the costs to construct the Agency Infrastructure
Improvements, subject to reimbursement from Agency Bonds. The
repayment of such advance is more fully described herein as the
Agency Assistance. The Agency Assistance shall not be
requested by Participant for the initial construction of the
portion of Agency Infrastructure Improvements associated with
the construction and opening of the Walmart Department Store
until the remainder of the Stage One Improvements are under
construction and pads have been poured and are completed for
all of the buildings which are included as part of the Stage
One Improvements. At the time of such completion of the
portion of the Agency Infrastructure Improvements constructed
during the Walmart Department Store development, however, and
at the commencement of construction of the Market and the
Pharmacy, the first portion of the Agency Assistance shall be
due and payable to Participant for all portions of the
Infrastructure Improvements then completed, including portions
completed by or on behalf of Walmart. Agency shall not require
a separate assignment of payment agreement from Walmart in
favor of Participant in order to honor the reimbursement
obligation of this paragraph. When the Stage One development
has been completed, the portion of the Agency Assistance for
the remainder of the Agency Infrastructure Improvements
completed in conjunction with the Stage One development shall
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be payable to Participant. Finally, when the Stage Two
development has been constructed and completed the remainder of
the Agency Assistance shall be due and payable to Participant.
The Agency shall make payment to the Participant (the "Agency
Assistance") with respect to the actual costs of materials and
construction ("Hard Costs") in an amount equal to the lesser of
(i) the sum of Three Million One Hundred Fifty -Six Thousand
Dollars ($3,156,000) (the "Maximum Amount") or (ii) the cost
incurred by the Participant and payable to third parties
(unrelated to the Participant, as reasonably determined by the
Agency, and without an allowance for overhead or commission on
the part of the Participant except to the extent such items are
affirmatively included within the "Allowable Soft Costs", as
defined below) to construct the Agency Infrastructure
Improvements (as identified in Attachment No. 4).
Notwithstanding the foregoing, the Maximum Amount shall be
reduced by the amount expended by the Agency, if any, to
construct such improvement(s) in the event the Agency elects,
subject to the conditions herein which permit such election, to
construct any portion of the Agency Infrastructure Improvements
by the actual amount of material and construction costs, plus
an allowance of twelve percent (12%) for overhead, for such
items. The Agency Assistance shall be in the form of direct
cash contribution, due and payable at the time specified
herein. To facilitate the payment obligation of the Agency,
the Agency agrees that certain tax increment revenues as
defined in Health and Safety Code Section 33670 shall be made
available as the source of debt service for bonds of the
Agency. The obligation of the Agency for such payments shall
represent a debt of the Agency.
The use of Three Million One Hundred Fifty -Six
Thousand Dollars ($3,156,000) as the Maximum Amount is based
upon (i) the completion and opening of Walmart, (ii) the
commencement of construction for the Market and the Pharmacy by
the respective times established for construction to commence
and for foundations to be completed in the Schedule of
Performance (Attachment No. 3) for work related to "Stage One",
and (iii) the issuance of building permits for "Stage Two" by
the respective times established therefor in the Schedule of
Performance (Attachment No. 3). If the building permits for
the Stage Two improvements have not been obtained by the time
required therefor pursuant to that Schedule of Performance
(Attachment No. 3), then the Maximum Amount shall be deemed to
be the greater of the amount expended for the Agency
Infrastructure Improvements as of that date or one -tenth of the
assessed valuation of the Site (including land and
improvements) as reflected on the secured roll for property tax
maintained by the County of Riverside as of the fifth (5th)
anniversary of the approval of this Agreement by the Agency,
but in no event greater than the limitation set forth herein.
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If the Maximum Amount at the fifth anniversary of the Effective
Date is, pursuant to this paragraph, less than Three Million
One Hundred Fifty -Six Thousand Dollars ($3,156,000), the
Maximum Amount shall be subject to adjustment on each
anniversary of the Effective Date to adjust the Maximum Amount
to the greater of the amount expended for the Agency
Infrastructure Improvements as of that date or one -tenth of the
assessed valuation of the Site (including land and
improvements) as reflected on the secured roll for property tax
maintained by the County of Riverside on that anniversary date,
until the eighth anniversary of the Effective Date, following
which no further adjustments shall be permitted. Participant
agrees that no protest concerning the assessed valuation of the
Project shall be lodged so long as the assessed valuation does
not exceed, with respect to the completion of Stage One and
Stage Two Improvements, the amount of Twenty Eight Million
Dollars ($28,000,000), including land and improvements, and
with respect to the completed Project when lease -up has been
completed, the amount of Forty -Five Million Dollars
($45,000,000).
The "Allowable Soft Costs" are costs equal to the
lesser of (i) the amounts incurred by the Participant with
respect to the following categories or (ii) the maximum amounts
allowable (as expressed below in percentages of total Hard
Costs by categories, all subject to the review and approval by
the City Engineer determined at his reasonably exercised
discretion, in good faith. The respective categories and
amounts are as follows: engineering design -- 4% of Hard
Costs; permit fees, plan check and inspections -- 2% of Hard
Costs; general contractor fees and costs of complying with
conditions and of paying fees -- 8% of Hard Costs; improvement
bonds -- 2% of Hard Costs; contingencies -- 2% of Hard Costs.
The total of the Allowable Soft Costs shall not exceed the
amount of Five Hundred Seventy -Five Thousand, Four Hundred
Sixty Dollars ($575,460) (the "Maximum Soft Cost Amount"). A
ten percent (10%) retention shall be applied with respect to
each category, except for "contingency" (as to which no payment
shall be made unless a change order is processed with and
approved by by City Engineer). If soft costs are incurred in
one category in an amount greater than that set forth above
with respect to that category, the excess shall not be deemed
to be an Allowable Soft Cost notwithstanding the circumstance
that the Maximum Soft Cost Amount will not be realized unless
such expense is includable.
The funding for the Agency Assistance may be generated
by the issuance of tax allocation bonds or notes secured by
Countable Tax Increment from the Project Area received by the
Agency pursuant to Section 33670(b) of the Health and Safety
Code ("Tax Allocation Bonds"). The Parties agree and
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acknowledge that it is not anticipated that any Tax Allocation
Bonds will be issued unless and until the Participant provides
proof of irrevocable commitments for the financing of all of
the unconstructed and unfunded Stage One Improvements other
than the Agency Infrastructure Improvements. If financing of
the Stage One Improvements exclusive of the Agency
Infrastructure Improvements is to be provided by Infrastructure
Bonds, then the authorization of the Infrastructure Bonds
(including the required affirmative vote for the special tax)
shall be required as satisfactory evidence that proof of
financing has been made with respect to those improvements to
be financed by the Infrastructure Bonds. For purposes of this
Agreement, Tax Allocation Bonds in a principal amount not
greater than the cost of the Agency Infrastructure Improvements
shall be referred to as "Agency Bonds."
The Agency has no obligation or liability to make any
payments by virtue of this Agreement other than the payment of
the Agency Assistance as provided in this Section 302. The
Participant assumes all responsibility for the timely
completion of the "Infrastructure Improvements," as defined in
Section 303 of this Agreement and for any costs to provide the
Agency Infrastructure Improvements in excess of the Maximum
Amount.
No interest shall accrue with respect to the Agency
Assistance.
The sole source which the Agency shall be required to
use for payment of debt service on the Agency Bonds is that
portion of those certain revenues payable to and received by
the Agency pursuant to Section 33670(b) of the Health & Safety
Code ("Countable Tax Increment") directly generated by the
improvements on Project Area No. 2, exclusive of the
following: (i) amounts of revenue generated from Project Area
No. 2 which are now or may hereafter become payable by the
Agency pursuant to Section 33401 of the Health & Safety Code
based upon agreements entered into prior to the date of this
Agreement; (ii) such Countable Tax Increment as shall have been
pledged to the repayment of indebtedness, including without
limitation bonds, prior to the approval by Agency of this
Agreement; and (iii) amounts paid by the Agency, from tax
increment generated on the Site, to the Agency's Low- and
Moderate -Income Housing Fund; provided that, for purposes of
this Section 302, such amounts as so deposited in the Agency's
Low- and Moderate« -Income Housing Fund shall not be deemed to
exceed 20% of all of the revenues allocable to the Agency
pursuant to Section 33670(b)of the Health and Safety Code.
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3.' Notwithstanding any provi'sion of this Agreement
to the contrary, the Agency' shall have no obligation to pay any
portion of the Agency Assistance and no intereat shallaccrue
unless and until.the Conditions Precedent (as defined'in
Section 303 of this Agreement)'are first satisfied.
4. Disbursement of the Agency Assistance shall be
accomplished -by payments as each portion.of the Agency
Infrastructure Improvements is completed provided that the
correlative on -site improvemsnte.have been accomplished as
described in Section.302(2) in accordance with the following
procedures:
(a) Upon completion of each portion of the
Agency Infrastructure Zmprdvements (provided that the Stage One
Improvements have been gccomplished as provided in Section
302(2)) the Participant shall submit to the Agency a written
itemized statement, signed by a representative of the
Participant ("Application for'Payment") setting forth:
(1) a description of the work performed,
material supplied and/or costs incurred or due in
connection with construction- of the Agency
Infrastructure Improvements for which disbursement is
requested; and, .
(2) the total amount incurred; expended
and/or due for the requested disbursement.
The Application for Payment by the Participant shall constitute
a representation and warranty by the Participant that the
Participant is in compliance with all of the Conditions
Precedent specified in Section 303 of the Agreement.
(b) Agency's Right to Condition Disbursements.
Payments of portions of the Agency Assistance shall be,made
only upon completion of defined portions'ef the Agency
Infrastructure Improvements and in compliance with the
requirements of this subsection. The Agency shall have the
right to condition its disbursement upon Agency's receipt and
approval of the following:
(1) the Application for Payment;
(2)- bills, invoices, documents of title,
vouchers, statements, payroll records, receipts and
any other documents in the Participant's possession or
under the Participant's control evidencing the total
amount expended, incurred.or due for any requested
diabursement;
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(3) engineer's periodic certifications or a
similar determination by the City's Department of
Public Works of the defined portion of
(i) construction that has been completed and its
conformance to the plans submitted in accordance with
the Agreement and the Scope of Development based upon
any such architect's, inspector's and/or engineer's
periodic, physical inspections of the Agency
Infrastructure Improvements and (ii) confirmation by
the City's Department of Public Works that the
correlative on -site improvements have been
accomplished, and, with respect to Allowable Soft
Costs, that the corresponding Infrastructure
Improvement has been completed;
(4) waivers and releases complying with the
provisions of Civil Code Section 3263 of mechanics'
lien, stop notice claim, equitable lien claim or other
lien claim rights;
(5) where the payment is for the completion
of one or more of the Agency Infrastructure
Improvements, valid, recorded Notice(s) of Completion
pursuant to Section 3093 of the Civil Code for the
Agency Infrastructure Improvements or any portions of
the Agency Infrastructure Improvements for which
Notice(s) of Completion may be recorded under
applicable laws;
(6) the architect's and engineer's, if any,
certificate of completion, prior to the final
retention disbursement or the final stage disbursement;
(7) any other document, requirement,
evidence or information in the Participant's
possession or under the Participant's control that
Agency may reasonably request under any provision of
the Agreement, including Section 303, pertaining to
satisfaction of all Conditions Precedent.
All work for which payment is sought pursuant to this Section
302 shall be completed to the satisfaction of, and approved by,
the City Engineer. The Participant shall pay for all labor
utilized in connection with the Agency Infrastructure
Improvements at the general prevailing rate of per diem wages
for work of a similar character in the locality in which the
work is performed, to -wit: the City of La Quinta.
The Agency shall exercise due diligence in reviewing any such
materials and approving payment of the Agency Assistance up to
the Maximum Amount prescribed pursuant to paragraph 1 of this
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Section 302. Payments of amounts due pursuant to each
Application for Payment shall be made by Agency no later than
the second regularly scheduled meeting of the Agency after the
approval of the City Engineer.
C. [§303] Conditions Precedent
Notwithstanding any provision of this Agreement to the
contrary, the Agency shall not be obligated to make any
disbursement of Agency Assistance or any other payment pursuant
to this Agreement, unless all of the following conditions
precedent are satisfied:
1. the Participant provides proof reasonably
satisfactory to the Agency that the Participant
is the owner of the Site;
2. the Participant provides proof satisfactory to
the Agency that all real property taxes levied
with respect to the Site, excepting only those
portions of the Site, if any, which have been
conveyed to third parties in conformity with this
Agreement, have been paid, and that no such taxes
are delinquent unless currently being contested;
3. the Participant shall have entered into a
binding, irrevocable agreement with Walmart
Department Store for the development and
operation of a full service Walmart Department
Store. The Participant must also secure a
binding commitment from the Market and Pharmacy
operations (or any one or more alternate user,
but only if such alternate user(s) has been
approved by Agency as more fully set forth in
Section 202), such commitments being subject to
the reasonable approval of the Agency; and
4. the Participant shall have complied with
applicable provisions of the California
Subdivision Map Act and the local subdivision
ordinance and all of the Project Approvals;
5. the Participant executes and causes to be
recorded the Agreement To Be Recorded Affecting
Real Property (Attachment No. 6);
6. there exists no Default, as defined in Section
601 of this Agreement, or event, omission or
failure of condition which would constitute a
Default after notice or lapse of time, or both;
and
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7. the Participant has delivered to Agency all
documents, instruments, policies, and forms of
evidence or other materials requested by Agency
under the terms of this Agreement.
The foregoing conditions numbered 1 to 7, inclusive, shall
collectively constitute the "Conditions Precedent".
D. [§304] Brokers
The Agency and the Participant each represents that it
has not engaged any broker, agent or finder in connection with
this transaction, and each agrees to defend, indemnify and hold
harmless the other Party from and against any claim with
respect to such commissions based upon the acts of the
indemnifying Party. This provision shall not apply to
marketing of fee interests or leasehold interests in the retail
center, and Agency shall have no liability with respect to
payment of any commissions related thereto.
IV. [§400] USE OF THE SITE
A. [§401] Uses
The Participant covenants and agrees for itself, its
successors, its assigns, and every successor in interest to the
Site or any part thereof, that during construction and
thereafter, the Participant, such successors and such
assignees, shall devote the Site to the uses specified in the
Redevelopment Plan, the Agreement To Be Recorded Affecting Real
Property (Attachment No. 6), and this Agreement for the periods
of time specified therein. Specifically, the Site shall be
used for a retail center consisting of approximately 617,694
square feet and not less than 553,500 square feet. The Center
must include: the development and operation of a full service
Walmart Department Store consisting of an estimated 126,000
square feet but not less than 120,000 square feet, the
development and operation of a full service Market consisting
of an estimated 42,500 square feet but not less than 30,000
square feet and the development and operation of a Pharmacy
consisting of an estimated 27,500 square feet, but not less
24,000 square feet. Operation of the Site as a retail center
by the Participant and/or its successors shall be required to
continue without interruption of greater than thirty (30)
consecutive days for the period of ten (10) years from the date
of opening of Walmart. Additionally, the Participant, such
successors and such assignees shall comply with all applicable
laws regarding their operations and use of the Site. The
foregoing covenant shall run with the land.
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The Participant covenants by and for itself and any
successors in interest that there shall be no discrimination
against or segregation of any person or group of persons and
the Participant and any successors in interest shall comply
with the antidiscrimination provisions of Section 33050 of the
Community Redevelopment Law ("Redevelopment Law") commencing at
Section 33000 of the Health and Safety Code of the State. Such
antidiscrimination covenant shall apply with respect to the
sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the Site, nor shall the Participant itself or any
person claiming under or through it establish or permit any
such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or
vendees of the Site. The foregoing covenants shall run with
the land.
All deeds, leases or contracts shall contain or be
subject to substantially the following nondiscrimination or
nonsegregation clauses:
1. In deeds: "The grantee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through them, that
there shall be no discrimination against or
segregation of, any person or group of persons on
account of race, color, creed, religion, sex,
marital status, national origin or ancestry in
the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein
conveyed, nor shall the grantee or any person
claiming under or through him or her, establish
or permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or
vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
2. In leases: "The lessee herein covenants by and
for himself or herself, his or her heirs,
executors, administrators and assigns, and all
persons claiming under or through him or her, and
this lease is made and accepted upon and subject
to the following conditions:
"That there shall be no discrimination against or
segregation of any person or group of persons, on
account of race, color, creed, religion, sex,
marital status, national origin or ancestry in
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the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the premises
herein leased nor shall the lessee himself [or
herself], or any person claiming under or through
him or her, establish or permit any such practice
or practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
sublessees, subtenants or vendees in the premises
herein leased."
3. In contracts: "There shall be no discrimination
against or segregation of, any person, or group
of persons on account of race, color, creed,
religion, sex, marital status, age, ancestry or
national origin, in the sale, lease, sublease,
transfer, use, occupancy, tenure or enjoyment of
the premises, nor shall the transferee himself or
herself or any person claiming under or through
him or her, establish or permit any such practice
or practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants, lessees,
subtenants, sublessees or vendees of the
premises."
No member, official or employee of the Agency shall be
personally liable to the Participant, or any successor in
interest, in the event of any default or breach by the Agency,
or for any amount which may become due to the Participant or
successor or on any obligations under the terms of this
Agreement.
B. [§402] Effect and Duration of Covenants.
After issuance of a Certificate of Completion with
regard to any portion of the Site, all of the terms, covenants,
agreements or conditions set forth in this Agreement relating
to such portion shall cease and terminate excepting only the
following provisions which shall survive as follows in
accordance with their provisions:
1. Section 401 (insofar as it relates to uses) and
Section 403 (maintenance) shall remain in effect until the
termination date of the Redevelopment Plan as such Plan may be
amended from time to time by proper amendment thereto.
2. Section 401 and 402 (insofar as it relates to
antidiscrimination) shall remain in effect in perpetuity.
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3. Article VI (relating to Defaults and Remedies)
shall remain in effect to the extent necessary to enforce other
provisions of this Agreement.
C. [§403] Maintenance of the Site
The Participant shall maintain the improvements on the
Site and shall keep the Site free from any accumulation of
debris or waste materials.
The Participant shall also maintain the landscaping
required to be planted under the Scope of Development
(Attachment No. 4) in a healthy condition.
Issuance of a Certificate of Completion by the Agency
shall not affect Participant's obligations under this section.
D. [§404] Rights of Access
The Agency, for itself and for the City and other
public agencies, at their sole risk and expense, reserves the
right to enter the Site or any part thereof at all reasonable
times for the purpose of construction, reconstruction,
maintenance, repair or service of any public improvements or
public facilities located on the Site. Any such entry shall be
made only after reasonable notice to Participant, and Agency
shall indemnify and hold Participant harmless from any costs,
claims, damages or liabilities pertaining to any entry.
E. [§405] Effect of Violation of the Terms and
Provisions of this Agreement After
Completion of Construction
The covenants established in this Agreement and the
deeds shall, without regard to technical classification and
designation, be binding for the benefit and in favor of the
Agency, its successors and assigns, as to those covenants which
are for its benefit. The covenants, contained in this
Agreement, and the Agreement To Be Recorded Affecting Real
Property (Attachment No. 6) shall remain in effect until the
termination date of the Redevelopment Plan. The covenants
against racial discrimination shall remain in perpetuity.
The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with
the land, for and in its own rights and for the purposes of
protecting the interests of the community and other parties,
public or private, in whose favor and for whose benefit this
Agreement and the covenants running with the land have been
provided. The Agreement and the covenants shall run in favor
of the Agency, without regard to whether the Agency has been,
02/26/91
3927u/2338/09 -25-
remains or is an owner of any land or interest therein in the
Site or in the Project Area. The Agency shall have the right,
if the Agreement or covenants are breached, to exercise all
rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the
curing of such breaches to which it or any other beneficiaries
of this Agreement and covenants may be entitled.
V. [§500] GENERAL PROVISIONS
A. [§501] Notices, Demands and Communications
Among the Parties
Written notices, demands and communications among the
Agency, and the Participant shall be sufficiently given if
delivered by hand (and a receipt therefor is obtained or is
refused to be given) or dispatched by registered or certified
mail, postage prepaid, return receipt requested, to the
principal offices of the Agency, and the Participant. Such
written notices, demands and communications may be sent in the
same manner to such other addresses as any party may from time
to time designate by mail as provided in this Section 501.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the tenth day from the date it is postmarked
if sent by registered or certified mail.
B. [§502] Conflicts of Interest
No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this
Agreement, nor shall any member, official or employee
participate in any decision relating to the Agreement which
affects his personal interests or the interests of any
corporation, partnership or association in which he is directly
or indirectly interested.
No member, official or employee of the Agency shall be
personally liable to the Participant, or any successor in
interest, in the event of any default or breach by the Agency,
or for any amount which may become due to the Participant or
successor or on any obligations under the terms of this
Agreement.
C. [§503] Enforced Delay; Extension of Times of
Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
02/26/91
3927u/2338/09 -26-
in default, and all performance and other dates specified in
this Agreement shall be extended, where delays or defaults are
due to: war; insurrection; strikes; lockouts; riots; floods;
earthquakes; fires; casualties; acts of God; 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; delays of any contractor,
subcontractor or supplier; acts or omissions of another party
not consented to by the party seeking to be excused; acts or
failures to act of the City of La Quinta or any other public or
governmental agency or entity (other than the acts or failures
to act of the Agency which shall not excuse performance by the
Agency, but shall excuse compliance with the affected schedule
by the Participant); or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform, except, however, soil and subsurface conditions shall
be at the sole risk of Participant and shall not provide a
basis for the time extensions and default avoidance provisions
of this Section. Notwithstanding anything to the contrary in
this Agreement, an extension of time for any such cause shall
be for the period of the enforced delay and shall commence to
run from the time of the commencement of the cause, if notice
by the party claiming such extension is sent to the other party
within thirty (30) days of the commencement of the cause.
Times of performance under this Agreement may also be extended
in writing by the mutual agreement of Agency and Participant.
Failure of the Participant to secure financing
pursuant to the provisions of this agreement or failure to
secure requisite commitments from Walmart, the Market and/or
the Pharmacy operator, as described in Section 314 of this
agreement, shall not constitute a valid ground for delay or
extension of times of performance.
D. [§504] Nonliability of Officials and Employees of
the Agency
No member, official or employee of the Agency or the
City shall be personally liable to the Participant, or any
successor in interest, in the event of any default or breach by
the Agency (or the City) or for any amount which may become due
to the Participant or its successors, or the Owner or its
successors, or on any obligations under the terms of this
Agreement.
02/26/91
3927u/2338/09 -27-
VI. [§600] DEFAULTS AND REMEDIES
A. [§601]
Defaults -- General
Subject to the extensions of time set forth in
Section 503, failure or delay by any party to perform any term
or provision of this Agreement constitutes a default under this
Agreement. A party claiming a default (claimant) shall give
written notice of default to the other party, specifying the
default complained of.
Except as otherwise expressly provided in Sections 611
and 612 of this Agreement, the claimant shall not institute
proceedings against the other party if the other party within
thirty (30) days from receipt of such notice immediately, with
due diligence, commences to cure, correct or remedy such
failure or delay and, once commenced, diligently proceeds to
complete such cure, correction or remedy.
B. [§602] Legal Actions
1. [§603] Institution of Legal Actions
In addition to any other rights or remedies and
subject to the restrictions in Section 601, either party may
institute legal action to cure, correct or remedy any default,
to recover damages for any default, or to obtain any other
remedy consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of Riverside, State of California, in an appropriate
municipal court in that county, or in the Federal District
Court in the Central District of California. The Parties to
this Agreement specifically desire a rapid and early resolution
of any dispute between them which arises out of this
Agreement. It is, therefore, agreed that any controversy
arising out of this Agreement, whether dealing with breach,
interpretation, or otherwise, will be heard by a reference,
without a jury, pursuant to the provisions of Section 638 of
the California Code of Civil Procedure. In the event of any
action or proceeding, including such a reference brought by
either Party against the other under this Agreement, the
prevailing Party shall be entitled to recover its actual
attorneys' fees and all fees, costs and expenses incurred for
prosecution, defense, consultation, or advice in such action or
proceeding. In addition to the foregoing the prevailing Party
shall be entitled to its actual attorneys' fees and all fees,
costs and expenses incurred in any post -judgment proceedings to
collect or enforce the judgment. This provision is separate
and several and shall survive the merger of this Agreement into
any judgment on this Agreement.
02/26/91
3927u/2338/09 -28-
2. [§604] Applicable Law
The laws of the State of California shall govern
the interpretation and enforcement of this Agreement.
3. [§605] Acceptance of Service of Process
In the event that any legal action is commenced
by the Participant against the Agency, service of process on
the Agency shall be made by personal service upon the Director
or in such other manner as may be provided by law.
In the event that any legal action is commenced
by the Agency against the Participant, service of process on
the Participant shall be made by personal service upon an
authorized agent of the Participant and shall be valid whether
made within or without the State of California or in such other
manner as may be provided by law.
C. [§606] Rights and Remedies Are Cumulative
Except as otherwise expressly stated in this
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.
D. [§607] Inaction Not a Waiver of Default
Any failures or delays by a party in asserting any of
its rights and remedies as to any default shall not operate as
a waiver of any default or of any such rights or remedies, or
deprive either such party of its right to institute and
maintain any actions or proceedings which it may deem necessary
to protect, assert or enforce any such rights or remedies.
E. [§608] Remedies and Rights of Termination Prior to
Conveyance
1. [§609] Damages.
If any party defaults with regard to any of the
provisions of this Agreement, the non -defaulting party shall
serve written notice of such default upon the defaulting
party. If the default is not cured or commenced to be cured by
the defaulting party within thirty (30) days after service of
the notice of default (or within such other period as is set
forth herein) the defaulting party shall be liable to the other
party for any damages caused by such default.
02/26/91
3927u/2338/09 -29-
2. [§610] Specific Performance
If a party defaults under any of the provisions
of this Agreement, any non -defaulting party shall serve written
notice of such default upon the defaulting party. If the
default is not cured by the defaulting party within thirty (30)
days of service of the notice of default, or such other time
limit as may be set forth herein with respect to such default,
the non -defaulting party at its option may thereafter (but not
before) commence an action for specific performance of terms of
this Agreement.
3. [§6111 Termination by the Participant
This Agreement may at any time prior to the
earlier of (i) the funding of the first dollar of Agency
Assistance pursuant to Section 202 hereof or (ii) the issuance
of Agency Bonds, at the option of the Participant, be
terminated by written notice thereof to the Agency, and
thereupon neither the Agency nor the Participant shall have any
further rights or obligations with respect to this Agreement.
4: [§612] Termination by the Agency
In the event that prior to the respective times
established therefor in the Schedule of Performance (Attachment
No. 3) (or if no time is set forth therein, by the time
referenced in the applicable sub -part of this Section 612):
a. prior to the issuance of a Certificate of
Completion (pursuant to Section 216) for all
of the Participant Improvements the
Participant (or any successor in interest)
assigns or attempts to assign the Agreement
or any rights therein or in the Site in
violation of this Agreement; or
b. prior to the issuance of a Certificate of
Completion (pursuant to Section 216) for all
of the Participant Improvements there is a
change in the management control of the
Participant contrary to the provisions of
Section 108 hereof; or
C. the Participant does not submit certificates
of insurance, construction plans, drawings
and related documents as required by this
Agreement, in the manner and by the dates
respectively provided in this Agreement
therefor any such default or failure shall
not be cured within thirty (30) days after
the date of written demand therefor by the
Agency; or
02/26/91
3927u/2338/09 -30-
d. the Participant fails to execute and cause
the recordation of the Agreement To Be
Recorded Affecting Real Property on all the
property Participant owns at the Site
(Attachment No. 6); or
e. prior to the time set forth for the
completion of the Participant Improvements
the Participant fails to provide to the
Agency a copy of a title insurance policy
showing that title to the Site is vested in
the Participant; or
f. the Participant fails to obtain approval by
the Design Review Board, the Planning
Commission, and the City Council, or fails
to obtain building permits; or
g. the Participant fails to enter into binding
agreements with Walmart, the Market and the
Pharmacy operation (or the alternate users
permitted by Agency pursuant to Section 202)
as prescribed by the provisions of Section
213 hereof;
then this Agreement and any rights of the Participant or any
assignee or transferee in the Agreement, or arising therefrom
with respect to the Agency or the Site, shall, at the option of
the Agency, be terminated by the Agency. In the event of
termination under this Section 612, if the Agency has not paid
any funds as all or part of the Agency Assistance, neither
party shall have any rights against the other under this
Agreement or with respect to the subject matter of this
Agreement.
VII. [§700] SPECIAL PROVISIONS
A. [§701] Submission of Documents to the Agency for
Approval.
Whenever this Agreement requires the Participant to
submit plans, drawings or other documents to the Agency for
approval, which shall be deemed approved if not acted on by the
Agency within the specified time, said plans, drawings or other
documents shall be accompanied by a letter stating that they
are being submitted and will be deemed approved unless rejected
by the Agency within the stated time. If there is not time
specified herein for such Agency action, the Participant may
submit a letter referencing this Section 701 and requiring
Agency approval or rejection of documents within thirty (30)
02/26/91
3927u/2338/09 -31-
days after submission to the Agency or such documents shall be
deemed approved.
B. [§702] Amendments to this Agreement
Participant and Agency agree to mutually consider
reasonable requests for amendments to this Agreement which may
be made by lending institutions, or Agency's counsel or
financial consultants, provided said requests are consistent
with this Agreement and would not substantially alter the basic
business terms included herein.
VIII. [§800] ENTIRE AGREEMENT, WAIVERS
This Agreement is executed in three (3) duplicate
originals, each of which is deemed to be an original. This
Agreement includes pages 1 through 33 and Attachment Nos. 1
through 7, which constitutes the entire understanding and
agreement of the parties.
This Agreement integrates all of the terms and
conditions mentioned herein or incidental hereto, and
supersedes all negotiations or previous agreements between the
parties or their predecessors in interest with respect to all
or any part of the subject matter hereof.
All waivers of the provisions of this Agreement must
be in writing by the appropriate authorities of the Agency and
the Participant, and all amendments hereto must be in writing
by the appropriate authorities of the Agency and the
Participant.
In any circumstance where under this Agreement either
party is required to approve or disapprove any matter, approval
shall not be unreasonably withheld.
IX. [§900] TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by the Participant and
delivered to the Agency, must be authorized, executed and
delivered by the Agency on or before thirty (30) days after
signing and delivery of this Agreement by Participant or this
Agreement shall be void, except to the extent that the
Participant shall consent in writing to a further extension of
time for the authorization, execution and delivery of this
Agreement. The date of this Agreement shall be the date when
it shall have been signed by the Agency.
02/26/91
3927u/2338/09 -32-
IN WITNESS WHEREOF, the Agency, the Participant, and
the Owner have signed this Agreement on the respective date*
not forth below.
1991 LA QUINTA REDEVELOPMENT ENCY
ti •
By:
chailyari
ATT
Secretary
APPROVED AS TO FORM:
Stradling, Yocca, Carla & Riauth
rJ t
L*¢al ,;'oifiise1 to the La puinta
RedeVilopment Agency
WASHINGTON/ADAMS L.P., a
California limited partnership
By: SC ENTERPRISES, a California
limited partnership, the
Managing General Partner
-S url Curci, General Partner
02/26/91
3927u/2338/09 -33-
STATE OF CAL I FORTH I A
es.
COUNTY OF
On this � day of I��t , in the year
2991, before me, t e undersigns , a atpry Public and for
said State, personally appeared �c�h �- -e 4 ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person who executed this
instrument as the Chairman of the LA QUINTA REDEVELOPMENT
AGENCY and acknowledged to me that the LA QUINTA REDEVELOPMENT
AGENCY executed it.
OFFOA(COWSMAL
QF-
SAUNDRA L.JUHOLA
NOTARYPIaBW-CALIFORNIA
RMERSIDE COUNTY
Ny Com+, Expires Dec. IS,1992
Signature of Notar Public'
Name typed or prints
STATE OF CALIFORNIA )
) as.
COUNTY OF )
On .? 1991 before me, the undersigned,
a Notary Public in arfd for said State, personally appeared
SIML C1JRCI , personally known to me or proved to me on the
basis of satisfactory evidence to be the person who executed
the within instrument as a general partner of SC ENTERPRISES,
the limited partnership that executed the within instrument,
and acknowledged to me that such partnership executed the same
on behalf of Washington/Adams, L.P., a California limited
partnership, the partnership that executed the within
instrument, and acknowledged to me that said last named
partnership executed the same.
WITNESS my hand and official seal.
Notary Pub i
( SFAL) eh.o.
OFFIC1ALSEAL
ROSEMARIE L. NEEDHAM
LOSS ANG LEE S ��
My Commb>>lon Expkes
June 20,1994
02/26/91
3927u/2338/09
ATTACHMENT NO. 1
[To be inserted;
separately designate the Site and the Project Area]
02/26/91
3927u/2338/09 ATTACHMENT NO. 1
ATTACHMENT NO. 2
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY LOCATED IN THE CITY OF LA QUINTA,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
The Site consists of two non-contiguous parcels that are
separated by the Whitewater Channel; the larger one which will
contain the retail center is that land bounded by Washington
Street on the westerly side, the Whitewater Channel on the
northerly side, Adams Street on the easterly side, and State
Highway 111 on the southerly side; and the smaller parcel which
will contain a future electrical power substation is that
triangular shaped parcel of land in the northeasterly corner of
Section 30, Township 5 South, Range 7 East, San Bernardino Base
and Meridian that is bounded by the section line of said
Section 30 on the northerly side, Adams Street on the easterly
side, and the Whitewater Channel on the southwesterly side. In
legal terms: the Site consists of all numbered and lettered
parcels shown on Parcel Map No. 25865 recorded in the State of
California, County of Riverside.
02/26/91
3927u/2338/09 ATTACHMENT NO. 2
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
I. GENERAL PROVISIONS
1A. Execution of Agreement
by Agency. The Agency
shall approve and execute
this Agreement, and
shall deliver one (1)
copy thereof to the
Participant.
1B. Conditions Precedent.
All of the Conditions
Precedent (as set forth
in Section 303) are
satisfied.
2. Submittal of Final
Tract Map. Participant
shall prepare, submit to
City, satisfied and
revise as necessary the
Final Tract Map.
3. Drawings Review by the
City.
Not later than forty-five (45)
days after the date of
execution and submission of
three (3) copies of this
Agreement by the Participant.
Not later than one hundred
eighty (180) days after the
Effective Date of this
Agreement.
Not later than ninety (90)
days after the Effective
Date.
Plot Plan (90-434) approval
for Phases I & III as
outlined in Specific Plan
89-104 has been obtained by
the Participant with
exception of the pad
buildings or other uses that
require a C.U.P. or Plot Plan
as required by the City of
La Quinta Municipal Code.
These uses along with Phase
II will be required to be
submitted and acted upon by
the City as outlined in items
3A through F below.
3A. Submittal of Design As required for project
Concept Drawings. development.
Participant shall prepare
and submit to the City
the Design concept
Drawings.
02/26/91 ATTACHMENT NO. 3
3927u/2338/09 (Page 1 of 4)
3B. Design Review Board
Submission.Participant
shall submit Design
Concept Drawings,
including design and
landscaping plans, to the
Design Review Board,
Planning Commission, and
City Council in conformity
with Section 204.
3C. Design Review Board,
Review. The Design
Review Board makes its
recommendation for action
by the Planning Commission
or the City Council to
approve, conditionally
approve or deny the
submission.
As to Stage One, Design
Concept Drawings shall be
submitted not later than six
months after the Effective
Date of this Agreement. With
respect to Stage Two, Design
Concept Drawings shall be
submitted on a schedule
consistent with the
requirement of Section 4A,
below. Similarly, with
respect to Stage Three,
Design Concept Drawings shall
be submitted on a schedule
consistent with the
requirement of Section 4A,
below.
Not later than thirty (30)
days after the Design Review
Board receives a complete
submittal, unless revisions
are required as outlined in
3F.
3D. Review of Drawings by the Within thirty (30) days after
Planning Commission. Design Review Board makes
Planning Commission shall recommendation unless
approve, conditionally revisions are required as
approve or deny the outlined in 3F.
submission.
3E. Review of Drawings by the Within thirty (30) days after
City Council. If required, Planning Commission makes it
the City Council shall recommendation unless
approve, conditionally revisions are required as
approve, or deny the outlined in 3F.
submission.
3F. Revisions to Drawings.
Revisions necessary to
accommodate the Design
Review Board, Planning
Commission or City
Council comments or
requirements.
The Participant shall have
thirty (30) days to make
changes requested by the
Design Review Board, Planning
Commission, City Council and
resubmit.
02/26/91 ATTACHMENT NO. 3
3927u/2338/09 (Page 2 of 4)
4.
4A.
4B.
Obtaining f Building
Permits. Participant
shall obtain all building
and other permits needed
to commence construction
of the Participant
Improvements as outlined
in 4A-F below.
Submission of Final
Construction Drawings
and Plans. Participant
shall submit complete
construction drawings and
plans to City for review
and approval.
Review of Complete
Drawings. The City shall
approve, or disapprove
the construction drawings
and make comments.
4C. Revision of Final
Construction Drawings.
Participant shall submit
revised and corrected
construction drawings and
plans to City, if necessary.
4D. Approval by Planning and
Building Department.
As to the Walmart Department
Store and the portion of the
Infrastructure Improvements to
be constructed concurrently
with the Walmart improvements,
not later than nine months
after the Effective Date. As
to the remainder of the Stage
One Improvements, not later
than second (2nd) anniversary
of the Effective Date. As to
the Stage Two Improvements,
not later than the fifth
(5th) anniversary of the
Effective Date. As to the
Stage Three Improvements, not
later than the eighth (8th)
anniversary of the Effective
Date.
Not later than thirty (30)
days after submission by
Participant.
Not later than sixty (60) days
after comments received from
Planning and Building
Department.
Not later than thirty (30)
days after drawings
resubmitted by Participant.
4E. Additional Review of
Drawings. If additional
comments are made by
Planning and Building
Department after
02/26/91 ATTACHMENT NO. 3
3927u/2338/09 (Page 3 of 4)
4F.
5.
5A.
1.1
5C.
Participant resubmits the
drawings then steps 4C and
4D will be repeated two
additional times only.
Building Permits.
Participant shall obtain
building permits for the
approved improvements.
Construction Improvements.
Commencement of
Construction. Participant
shall commence construction
of the Participant
Improvements.
Completion of Foundations
for Stage One. All
foundations for Stage One
are completed, as reason-
ably determined by the
City Engineer.
Completion of Construction.
Participant shall
complete construction of
all of the Participant
Improvements.
Not later than ninety (90)
days after approval of the
construction drawings by the
City.
Within ninety (90) days
after issuance of building
permits for the respective
improvements, or as required
by La Quinta Municipal Code.
Not later than one hundred
eighty (180) days after the
issuance of building permits
for the respective improve-
ments.
Not later than fifteen (15)
months after the commencement
of construction of the
respective improvements.
Stage One shall be completed
not later than three (3)
years from the Effective
Date. Stage Two shall be
completed not later than six
(6) years from the Effective
Date. Stage Three shall be
completed not later than nine
(9) years from the Effective
Date.
6. Payment of the Agency As set forth in Section 302.
Assistance. Subject to
Section 302 of the
Agreement, the Agency
pays to the Participant
the Agency Assistance.
02/26/91 ATTACHMENT NO. 3
3927u/2338/09 (Page 4 of 4)
ATTACHMENT NO. 4
SCOPE OF DEVELOPMENT
I. GENERAL DESCRIPTION
The Site is delineated on the Map (Attachment No. 1) and
the Legal Description (Attachment No. 2) pursuant to Section
104 and of the Agreement.
II. DEVELOPMENT OF THE PARTICIPANT IMPROVEMENTS
The Participant shall complete all of the improvements set
forth in this Scope of Development (Attachment No. 4) to be
constructed on the Site (the "On -Site Improvements") and those
infrastructure improvements required in connection with the
City Is entitlement process to be provided by the Participant or
otherwise described in this Scope of Development (the
"Infrastructure Improvements"). All improvements set forth in
this part II of the Scope of Development (Attachment No. 4)
(including all of the On -Site Improvements and the
Infrastructure Improvements), which conform to the Development
Standards of part III hereof, together constitute the
"Participant Improvements."
The Infrastructure Improvements consist of two groups, as
follows: (i) the "Agency Infrastructure Improvements", and
(ii) the "Participant Infrastructure Improvements." The Agency
Infrastructure Improvements consist of those certain
improvements described in Addendum No. 1 to this Attachment
No. 4. The Participant Infrastructure Improvements consist of
all infrastructure improvements required by the Project
Approvals. In addition to the Participant Improvements, the
Participant shall dedicate to the respective public or
quasi -public agencies intending to be the end users, at no
cost, the well site required by the Coachella Valley Water
District, being Parcel A of Parcel Map -2� to be recorded,
and the electrical substation parcel requ ed by the Imperial
Irrigation District, being Parcel F of that same map.
The Participant shall commence and complete the Participant
Improvements by the respective times established therefor in
the Schedule of Performance (Attachment No. 4).
As part of the Participant Improvements, the Participant
shall construct or cause to be constructed on the Site a retail
center with an estimated size of six hundred seventeen thousand
02/26/91 ATTACHMENT NO. 4
3927u/2338/09 (Page 1 of 5)
six hundred ninety-four (617,694) square foot, but not less
than 553,500 comprised of:
(a) A full service Walmart Department Store, or its
equivalent, consisting of an estimated 126,000 square feet, but
not less than 120,000 square feet;
(b) A full service Payless Drugs, or its equivalent,
consisting of an estimated 27,500 square feet, but not less
than 24,000 square feet;
(c) A full service Albertsons Supermarket, or its
equivalent, consisting of an estimated 42,500 square feet, but
not less than 30,000 square feet;
(d) Other major tenants; and
(e) Auxiliary shops;
provided, however, if a market operator other than Albertsons,
but of like reputation and sales potential or a pharmacy
operator other than Payless, but of like reputation and sales
potential is selected by Participant, the Parties shall confer
in good faith so as to obtain approval for such substitution by
the Agency. In the event that Participant secures an agreement
with such an alternative to an Albertsons and/or a Payless, the
Agency shall have the authority to determine the "comparable"
nature of said alternative. The Agency shall exercise good
faith and consider the information provided by the Participant
as well as such other information -- for example, the size of
the corporation, or the number of units of Southern California
regional advertising -- as the Agency shall deem appropriate.
In the event that the Participant, acting in its reasonable
discretion, submits for approval to Agency, instead of an
alternate Market or Pharmacy operator, a retail tenant of
comparable regional reputation as Albertsons and/or Payless
Drugs, and the average annual retail sales are reasonably
expected to be of comparable quality and to generate comparable
sales tax revenues to the City or the Agency as is estimated
for the Albertsons and/or Payless Drugs operation, then
notwithstanding the fact that such alternate businesses are not
in the same business as a Market or a Pharmacy the Agency shall
confer in good faith with Participant to determine if the
financial projections for the Project sales tax generation are
likely to be substantially unaffected, and upon such
determination shall not unreasonably withhold its approval for
substitution. Following such approval by the Agency such
business shall be deemed to be a Market or a Pharmacy,
respectively, for purposes of satisfying the obligations of
Participant pursuant to this Agreement.
02/26/91 ATTACHMENT NO. 4
3927u/2338/09 (Page 2 of 5)
The development shall be accomplished in three stages:
"Stage One" shall include the Walmart Department Store, the
Market, the Pharmacy, and all Infrastructure Improvements
except the improvements to Highway 111. "Stage Two" shall
consist of Four Hundred Fifty Thousand (450,000) square feet
gross leasable area, all enclosed, inclusive of Stage One, and
the remaining portions of the Infrastructure Improvements.
"Stage Three" shall consist of all of the Participant
Improvements other than those required to be accomplished as
part of Stage One or Stage Two. All of such improvements shall
be commenced and completed by the respective times established
therefor in the Schedule of Performance (Attachment No. 3).
The development shall commence consistent with the times set
forth therefor in the Schedule of Performance (Attachment
No. 3). In any event, development shall be completed no later
than the respective times established therefor in the Schedule
of Performance (Attachment No. 3).
III. DEVELOPMENT STANDARDS
All of the Participant Improvements shall be developed
in conformity with (i) the Municipal Code of the City of
La Quinta (as in effect as of the time plans for the
Participant Improvements are approved), (ii) the Project
Approvals, and (iii) final City approval following
recommendation by the Design Review Board and formal action to
approve by the City Council or, if applicable, the Planning
Commission. The Participant acknowledges that it shall be
responsible to obtain any approvals of the Imperial Irrigation
District, the Coachella Valley Water District, Caltrans, and
such other public agencies as may have jurisdiction with
respect to any portion of the Participant Improvements. The
Participant shall make all necessary applications by such
time(s) as will be consistent with the timely commencement and
completion of the various portions of the Participant
Improvements by the respective times established therefor by
the Schedule of Performance (Attachment No. 3). In addition,
the following development standards shall apply to the
Participant Improvements:
A. Vehicular Access. The placement of vehicular
driveways shall be coordinated with the needs of proper street
traffic flow. In the interest of minimizing traffic
congestion, the City will control the number and location of
curb breaks for access to the Site for off-street parking and
truck loading. All access driveways shall require written
approval of the City and, with respect to Highway 111, Caltrans.
B. Loading. Adequate loading and unloading space
shall be provided as approved by the City. Loading spaces
visible from streets shall be landscaped or screened to prevent
an unsightly or barren appearance.
02/26/91 ATTACHMENT NO. 4
3927u/2338/09 (Page 3 of 5)
C. Signs. Signs shall be limited in size, subdued
and otherwise designed to contribute positively to the
environment. Signs identifying the building use will be
permitted, but their height, size, location, color, lighting
and design will be subject to City approval, and signs must
conform to the Municipal Code of the City of La Quinta. No
animated signs or signs extending above the roof parapet are
allowed. Signage shall conform to "Sign Design Plan 111 --
La Quinta" approved by the Planning Commission of the City on
D. Screening. All outdoor storage of materials or
equipment shall be enclosed or screened to the extent and in
the manner required by the City.
E. Landscaping. The Participant shall provide and
maintain landscaping within the public rights -of -way and within
setback area along all street frontages and on -site all as
required by the Plans and Drawings as approved by the City.
Landscaping shall consist of trees, shrubs and
installation of an automatic irrigation system adequate to
maintain such plant material. The type and size of trees to be
planted, together with a landscaping plan, shall be subject to
the City's approval prior to planting.
F. Utilities. Utilities on the Site such as are
specified for undergrounding and/or enclosure on the plans and
designs approved by the City shall be underground or enclosed
at Participant's expense. In clarification of the foregoing,
electrical power utilities on Adams St. shall not be placed
underground.
G. Parking. The Site shall contain on -site parking
in compliance with local regulations.
IV. SITE PREPARATION AND DEMOLITION
The Participant shall effect any site preparation
(including without limitation demolition and relocation of
utilities) necessary for the provision of the Participant
Improvements. All such work shall be at the sole cost and
expense of Participant except to the extent such work is
pre -approved to be included in Agency Assistance and/or funded
by Infrastructure Bonds. Such Site preparation may consist of
the following:
02/26/91 ATTACHMENT NO. 4
3927u/2338/09 (Page 4 of 5)
A. Demolition. Demolition activities shall include:
1. Insofar as necessary to provide the Participant
Improvements, the reduction and removal of any
structures and improvements from the Site,
including subsurface structures, and the removal
of all bricks, lumber, pipes, equipment and other
material and all debris and rubbish resulting
from such demolition.
2. Insofar as necessary to provide the Participant
Improvements, the removal of all paving
(including catch basins, curbs, gutters, drives
and sidewalks) within or on the Site.
3. Removal and abandonment by public utility
companies of such utility lines, installations,
facilities and related equipment within the Site
required to effectuate the purposes of the
Redevelopment Plan and this Agreement.
The Agency is not in any way responsible for the
filling of any excavations, nor for grading or compaction.
Soil conditions shall be solely the responsibility of
Participant.
B. Soil Conditions. As between the Participant and
the Agency, the Participant (i) assumes the responsibility to
deal with all portions of the Site in an "as is" condition. It
shall be solely the responsibility of Participant, at
Participant's expense, to investigate and determine the soil
and subsurface conditions of the Site. In the event such
investigation indicates the conditions are not in all respects
entirely suitable for the use or uses to which the Site will be
put, then the Agency shall have no responsibility or obligation
to take such action as may be necessary to place the Site and
the soil conditions of the Site in all respects in a condition
entirely suitable for the development of the Site.
C. Subdivision Compliance. The Participant shall be
responsible for the preparation and processing of maps, if any,
as may be required pursuant to the Subdivision Map Act
(Government Code Section 64100, et seq.) and local ordinances
enacted pursuant thereto, and with complying with conditions
imposed as a condition of map approval.
02/26/91 ATTACHMENT NO. 4
3927u/2338/09 (Page 5 of 5)
ADDENDUM NO. 1 TO ATTACHMENT NO. 4
LISTING OF AGENCY INFRASTRUCTURE IMPROVEMENTS
(As outlined on Exhibit "A" to this Attachment 4)
A. CVWD Storm Channel Improvement
The scope of work includes all surveying, prewatering,
rough and fine grading, export of dirt as required and
shotcrete including cutoff and all other work required to
construct the Storm Channel Protection as detailed on the
Hogencamp Engineering plans dated December 7, 1990 except
for the low water crossing of Adams Street.
B. Washington Street Improvement
The scope of work is from the existing right of way on the
west side to the new right of way on the east side of the
new center line (approximately 100 L.F.) and from the
intersection of Highway 111 to the intersection of the
bridge. The work includes all surveying, rough and fine
grading, asphalt paving including variable overlay but
excluding asphalt or landscaped median, concrete curb and
gutter, landscaping, striping and signage to construct the
street improvements in accordance with City of La Quinta
Standards and as outlined on the drawings prepared by the
City of La Quinta dated 12/11/90.
C. State Highway 111 Improvement
The scope of work is from the existing edge of pavement
east of Simon and existing curb between Simon and
Washington on the southside of Highway 111 to the new right
of way line on the north side of the Highway and from the
east side of the Adams intersection approximately 3,600
L.F. to the intersection of Washington Street plus a
variable width (+/- 0-20') transition on the north side of
Highway 111 west of Washington to Point Happy (the
acquisition cost of this variable right of way is excluded
from the scope of work). The work includes all surveying,
demolition, rough and fine grading, traffic control,
asphalt paving including variable overlay, concrete
including curb and gutter, driveways, raised landscaped
median and sidewalks, striping, signage, street lighting at
intersections, landscaping and all other work as required
to construct the improvements in accordance with the
Caltrans draft Project Report dated January 28, 1991.
02/26/91 ADDENDUM NO. 1 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 1 of 2)
D. Traffic Signals
The scope of work is the installation of five (5) new
traffic signals at the following intersections:
Washington Street Bridge & Mobil entrance (3 legs)
Highway 111 & Washington St. intersection (4 legs)
Highway 111 & Simon intersection (4 legs)
Highway 111 & Walmart entrance (3 legs)
Highway 111 & Adams St. intersection (3 legs)
(new)
(new)
(new)
(new)
(new)
The work includes all material and labor required necessary
for the installation of fully operational signals in
conformance with the design standards set by Caltrans, the
County of Riverside and the City of La Quinta.
E. Adams Street Improvements
The scope of work is a variable (44'-55') travelway from
the new curb and gutter on the west side to the new edge of
pavement on the east end from the intersection of Highway
111 to the tope of the Whitewater Channel (approximately
1300 L.F.). The scope of work does not include the low
water crossing or any roadway improvements north of the
Whitewater Channel. The work includes all surveying, rough
and fine grading, asphalt paving, concrete curb and gutter
(on the west side only), landscaping, striping and signage
to construct the street improvements in accordance with the
City of La Quinta Standards as outlined in the Hall &
Foreman drawings dated December 3, 1990 with corrections
from the City of La Quinta.
F. CVWD Well Site
In accordance with the draft agreement with CVWD dated
January 15, 1991. Washington Adams, L.P. shall dedicate to
CVWD a graded parcel of land approximately 150'x150' for a
regional wellsite. The scope of work shall include the
capital cost for the improvements to include survey,
grading, paving, boring, mechanical and electrical
equipment required to construct the regional wellsite
improvements as estimated by CVWD not to exceed $450,000.00.
02/26/91 ADDENDUM NO. 1 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 2 of 2)
ADDENDUM NO. 2 TO ATTACHMENT NO. 4
LIST OF MELLO-ROOS INFRASTRUCTURE
IMPROVEMENTS AS OUTLINED
ON EXHIBIT "B" OF THIS ATTACHMENT NO. 4
A. Perimeter Landscape
The scope of work includes landscaping for (1) a 28' wide
easement to the City from the new northerly right of way
along Highway 111 extending from Washington Street to Adams
Street; (2) a 10' wide easement to the City from the new
westerly right of way of Adams Street extending from
Highway 111 to the northern most property line of the site
prior to the Whitewater Channel, (3) a 20' wide easement to
the City from the new easterly right of way of Washington
Street extending from Highway 111 to the south end of the
Washington Street bridge.
The work includes all landscape, concrete -sidewalks, walls
and footings, irrigation -piping and controls, and
architectural features to construct the perimeter landscape
buffer, per the schematic plans dated January 15, 1990 by
Ron Gregory and Associates.
B. Water System On and Off Site
The scope of work includes: the installation of a complete
water system with a 1,300 L.F. mainline extending from the
south side of Highway 111 along Adams Street to the
Whitewater Channel with approximately three 3,500 L.F.
branch lines connecting at the west end of the site and
subsequently connecting with the existing main line running
down Washington Street. Upon completion the improvement
will be dedicated along with an easement to CVWD.
The work includes all surveying, excavation, backfill,
piping including laterals for building service and fire
hydrant requirements and manholes necessary to complete the
improvements as detiled on Hall & Foreman plans dated
November 2, 1990.
C. Sewer System On and Off Site
The scope of work includes the installation of a complete
sewer system with a 2,500 L.F. mainline extending from
south of Highway 111 along Adams Street to the Whitewater
Channel with approximately two 2,000 L.F. branch lines
running across the site and approximately 1,000 L.E. of
branch line on the west end of the site connecting to an
existing main line located in Highway 111 at the
02/26/91 ADDENDUM NO. 2 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 1 of 2)
a
intersection of Washington Street. Upon completion the
improvements will be dedicated along with an easement to
CVWD.
The work includes all surveying, excavation, backfill,
piping including laterals for building service and
manholes, necessary to complete the improvements as
detailed on Hall & Foreman plans dated November 2, 1990.
Power/Telephone and Cable
The scope of work includes the installation of a complete
underground power/telephone and cable conduit system for
the installation by the respective utility companies of
electrical, telephone and cable service to the site running
along the Whitewater Channel between Adams Street and
Washington Street along Highway 111 between Adams Street
and Washington Street. Upon completion the improvements
will be dedicated along with an easement to the appropriate
utility company.
The work includes all survey excavation, concrete,
backfill, conduit including mainline and secondary feeds,
transformers, pullboxes necessary to complete the
improvements as detailed on the IID drawings dated January
24, 1991, GTE drawings and Palmer cable drawings to follow.
02/26/91 ADDENDUM NO. 2 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 2 of 2)
ADDENDUM NO. 3 TO ATTACHMENT NO. 4
The 217(a) Conditions are as follows:
1. Condition 2: This condition limits the height of the
parking lot light standards to 30 feet. Based upon
the lighting study using 42 feet high light standards
benefits the project aesthetics and cost. The maximum
pole height shall be 42 feet.
2. Condition 14: This condition requires a 34 foot
setback along Washington Street. This condition will
be changed to require 30 feet measured from curbline.
3. Condition 55.d: The Adams Street improvements shall
run from Highway 111 to the northerly most driveway
access. The low water crossing improvements will not
be built as the IID site will be accessed from the
North.
4. Condition 57: This condition requires 50% of the
costs for the low water crossing at the Whitewater
Channel. This condition will be eliminated and not
required by the Applicant.
5. Condition 60: This condition requires 7.25% of the
costs of the Washington Street bridge. This condition
will be eliminated. The bridges will be constructed
by Infrastructure Fees.
6. Condition 62: The property to the South Highway 111
will retain the storm water. Therefore, the easement
is not required.
7. Condition 66: Along Highway 111, the landscape buffer
should be measured from the street curb, not from
Caltrans right-of-way. The landscape set back may
vary for a 48 foot depth at Adams Street to a 38 footh
depth at Washington Street if Caltrans requires
additional roadway width.
The 217(b) Conditions are as follows:
1. Condition 54.c.(2): Allows up to 50% of the
reimbursement costs associated with the access from
Washington Street adjacent to the bridge. This
condition will be modified since the reimbursement is
not necessary, it is part of the City of La Quinta's
contribution.
02/26/91 ADDENDUM NO. 3 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 1 of 2)
2. Condition 59: This condition allows 50-75%
reimbursement for the traffic signals. This condition
will be modified since there will be no
reimbursements, this is part of the City of
La Quinta's costs.
02/26/91 ADDENDUM NO. 3 TO ATTACHMENT NO. 4
3927u/2338/09 (Page 2 of 2)
ATTACHMENT NO. 5
Certificate of Completion
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
LA QUINTA REDEVELOPMENT )
AGENCY )
78-105 Calle Estado )
La Quinta, CA 92253 )
Attn: Executive Director )
(Space above for Recorder's Use.)
LA QUINTA REDEVELOPMENT PROJECT
LA QUINTA, CALIFORNIA
CERTIFICATE OF COMPLETION OF
CONSTRUCTION AND DEVELOPMENT
WHEREAS, by an Owner Participation Agreement dated
JI 1990, by and between the LA QUINTA REDEVELOPMENT
AGENCY, a public body, corporate and politic (hereinafter
referred to as the "Agency") and the WASHINGTON/ADAMS L.P., a
California limited partnership (hereinafter referred to as the
"Participant"), the Participant has developed the real property
(the "Site"), legally described on the attached Exhibit A, by
constructing or causing to be constructed the improvements (or
some discrete portion thereof) thereon according to the terms
and conditions of said Owner Participation Agreement (the
"OPA"); and
WHEREAS, pursuant to Section 216 of the OPA, promptly
after completion of the Participant Improvements or any
discrete phase or portion thereof, as therein defined, the
Agency shall furnish the Participant with a Certificate of
Completion upon written request therefor by the Participant; and
WHEREAS, the issuance by the Agency of the Certificate
of Completion shall be conclusive evidence that the
construction of the Participant Improvements or any discrete
phase or portion thereof, conforms to the OPA; and
WHEREAS, the Participant has requested that the Agency
furnish the Participant with the Certificate of Completion; and
02/26/91 ATTACHMENT NO. 5
3927u/2338/09 (Page 1 of 2)
WHEREAS, the Agency has conclusively determined that
the construction of the Participant Improvements (or phase or
portion thereof, as described herein) conforms to the OPA;
NOW THEREFORE:
1. As provided in the OPA, the Agency does hereby
certify that the construction of the Participant Improvements
(or phase or portion thereof, as described herein) has been
satisfactorily performed and completed, and that such
development and construction work complies with the OPA.
2. Except as referenced in that certain Agreement to
be Recorded Affecting Real Property (the "Recorded Agreement"),
recorded as document number among the official
records of the County of Riverside, the OPA shall hereafter be
of no further force and effect. Any continuing and existing
rights, duties, obligations and liabilities pertaining to the
Site or the subject matter of the OPA are provided as set forth
in the Recorded Agreement, which Recorded Agreement shall
remain in full force and effect according to its terms.
3. This Certificate of Completion does not
constitute evidence of compliance with or satisfaction of any
obligation of the Participant to any holder of a mortgage or
any insurer of a mortgage security money loaned to finance the
work of construction of improvements and development of the
Site, or any part thereof. This Certificate of Completion is
not a notice of completion as referred to in Section 3093 of
the California Civil Code.
IN WITNESS WHEREOF, the Agency has executed this
Certificate as of this day of , 1991.
LA QUINTA REDEVELOPMENT AGENCY
By:
ATTEST:
Agency Secretary
Executive Director
02/26/91 ATTACHMENT NO. 5
3927u/2338/09 (Page 2 of 2)
STATE OF CALIFORNIA )
) ss.
COUNTY OF RIVERSIDE )
On this day of , 1991, before me, the
undersigned, a Notary Public in and for said State, personally
appeared A. personally
known to me (or proved to me on the basis of satisfactory
evidence) to be the person who executed the within instrument
as the Executive Director of the LA QUINTA REDEVELOPMENT AGENCY
and acknowledged to me that the LA QUINTA REDEVELOPMENT AGENCY
executed it.
Signature of Notary Public
Name typed or printed
(SEAL)
02/26/91
3927u/2338/09 ATTACHMENT NO. 5
EXHIBIT "A" TO ATTACHMENT NO. 5
LEGAL DESCRIPTION
ALL THAT REAL PROPERTY LOCATED IN THE CITY OF LA QUINTA,
COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
(To Be Inserted)
02/26/91
3927u/2338/09 EXHIBIT "A" TO ATTACHMENT NO. 5
ATTACHMENT NO. 6
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO )
LA QUINTA REDEVELOPMENT )
AGENCY )
Attention: Executive Director)
78-105 Calle Estado )
La Quinta, California 92253 )
[Space above for recorder.]
This Agreement is recorded at
the request and for the benefit
of the La Quinta Redevelopment
Agency and is exempt from the
payment of a recording fee
pursuant to Government Code
Section 6103.
LA QUINTA REDEVELOPMENT AGENCY
By:
ts:
Dated:
LA QUINTA REDEVELOPMENT PROJECT
EMENT TO BE RECORDED AFFECTING
REAL PROPERTY
JI 1991
THIS AGREEMENT is entered into this day of
, 1991, by and between the LA QUINTA
REDEVELOPMENT AGENCY, a public body, corporate and politic (the
"Agency"), and WASHINGTON/ADAMS L.P., a California limited
partnership (the "Participant"), with reference to the
following:
A. The Participant is fee owner of record of that certain
real property (the "Property") located in the County of
Riverside, State of California legally described in the
attached Exhibit "A". The Property is referred to in the "OPA"
(defined in paragraph "C" hereof) as the Site.
02/26/91 ATTACHMENT NO. 6
3927u/2338/09 (Page 1 of 5)
B. The Property is within the La Quinta Redevelopment
Project Area (the "Project") and is subject to the provisions
of the Redevelopment Plan for the Project adopted by Ordinance
No. 43 on November 29, 1983 by the City Council of the City of
La Quinta. The Agency has full power and jurisdiction in
respect to the Property pursuant to the Redevelopment Plan.
C. The Agency and the Participant have entered into an
Owner Participation Agreement dated as of , 1991
concerning the development and operation of the Property (the
"OPA") which OPA is on file with the Agency as a public record
and is incorporated herein by reference and which OPA provides
for the execution and reconstruction of this document. Except
as otherwise expressly provided in this Agreement, all terms
shall have the same meanings as set forth in the OPA.
NOW, THEREFORE, THE AGENCY AND THE PARTICIPANT AGREE
AS FOLLOWS:
1. The Participant shall have the right and it covenants
and agrees on behalf of its successor and assigns, to use the
Property for the following purposes only:
Participant shall develop or shall cause to be
developed on the Site a retail center as more particularly set
forth in the OPA. Participant covenants and agrees to use and
operate the Property and the improvements thereon for a retail
center consisting of an estimated 617,694 square feet but not
less than 553,500 square feet. The Center must include: the
development and operation of a full service Walmart Department
Store consisting of an estimated 126,000 square feet, but not
less than 120,000 square feet; the development and operation of
a full service Albertsons Supermarket or its like equivalent
consisting of an estimated 42,500 square feet, but not less
than 30,000 square feet; and the development and operation of a
full service Payless Drug Store or its like equivalent
consisting of an estimated 27,500 square feet, but not less
than 24,000 square feet'. Operation of the Site as a retail
center shall be required to conform to the uses permitted in
the Redevelopment Plan for the term of such Redevelopment Plan,
and Participant shall continue the operation of the retail
center for at least the period of ten (10) years from the date
of opening of Walmart. Additionally, the Participant, such
successors and such assignees shall comply with all applicable
laws regarding their operations and uses of the Site and shall
diligently carry out and take all reasonable and necessary
actions to accomplish this purpose.
After the foregoing ten-year period, all uses
conducted on the Site shall conform with the Redevelopment Plan
as it exists as of the date of recordation of this Agreement.
02/26/91 ATTACHMENT NO. 6
3927u/2338/09 (Page 2 of 5)
2. The Participant, on behalf of itself and its
successors, assigns, and each successor in interest to the
Property or any part thereof, hereby covenants and agrees:
(a) To use, devote, and maintain the Property and
each part thereof, for the purposes specified in the
Redevelopment Plan.
(b) Not to discriminate upon the basis of sex,
marital status, race, color, creed, religion, national origin,
or ancestry in the sale, lease, sublease, transfer or rental,
or in the use, occupancy, tenure, or enjoyment of the Property
or any improvements thereon, or of any part thereof. Each and
every deed, lease, and contract entered into with respect to
the Property shall contain or be subject to substantially the
following nondiscrimination or nonsegregation clauses:
(1) In deeds: "The grantee herein covenants by
and for itself, it successors and assigns,
and all persons claiming under or through
them, that there shall be no discrimination
against or segregation of any person or
group of persons on account of sex, marital
status, race, color, creed, religion,
national origin, or ancestry in the sale,
lease, rental, sublease, transfer, use
occupancy, tenure, or enjoyment of the land
herein conveyed, nor shall the grantee
itself or any persons claiming under or
through it, establish or permit any such
practice or practices of discrimination or
segregation with reference to the selection,
location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or
vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
(2) In leases: "The lessee herein covenants by
and for itself, its successors and assigns,
and all persons claiming under or through
them, and this lease is made and accepted
upon and subject to the following conditions:
That there shall be no discrimination
against or segregation of any person or
group of persons, on account of sex, marital
status, race, color, creed, religion,
national origin, or ancestry, in the
leasing, renting, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the
land herein leased nor shall the lessee
02/26/91 ATTACHMENT NO. 6
3927u/2338/09 (Page 3 of 5)
itself, or any person claiming under or
through it, establish or permit such
practice or practices of discrimination or
segregation with reference to the selection,
location, number, use or occupancy of
tenants, lessees, sublessees, subtenants, or
vendees in the land herein leased."
(3) In contracts: "There shall be no
discrimination against or segregation of,
any persons, or group of persons on account
of sex, marital status, race, color, creed,
religion, national origin, or ancestry in
the sale, lease, rental, sublease, transfer,
use, occupancy, tenure or enjoyment of the
land, nor shall the transferee itself or any
person claiming under or through it,
establish or permit any such practice or
practices of discrimination or segregation
with reference to the selection, location,
number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees
of the land."
3. There shall be no discrimination against or
segregation of any person, or groups of persons, on account of
sex, marital status, race, color, creed, religion, national
origin, or ancestry in the sale, lease, rental, sublease,
transfer, use, occupancy, tenure or enjoyment of the property
or any part thereof, nor shall the Participant, its successors,
assigns, or successors in interest to the Property or any part
thereof, or any person claiming under or through them,
establish part thereof, or any person claiming under or through
them; establish or permit any such practice or practices of
discrimination or segregation with reference to the selection,
location, number, use, or occupancy of owners, tenants,
lessees, sublessees, or vendees of the Property or any part
thereof.
4. The agreements and covenants set forth in this
Agreement shall run with the land. The agreements and
covenants contained in Section 1 herein shall remain in effect
for the periods provided therein.
The agreements and covenants contained in Sections 2
and 3 herein pertaining to the uses of the Property shall
remain in effect from the date hereto until the expiration date
of the Redevelopment Plan as said expiration date may be
extended by proper amendment to the Redevelopment Plan.
Covenants regarding discrimination shall remain in effect in
perpetuity.
02/26/91 ATTACHMENT NO. 6
3927u/2338/09 (Page 4 of 5)
IN WITNESS WHEREOF, the Agency and the Participant have
executed this Agreement.
"AGENCY"
Dated: 1991 LA QUINTA REDEVELOPMENT AGENCY
ATTEST s
Secretary
02/26/91
3927u/3338/09
$Y=
airman
"PARTICIPANT"
WASHINGTONJADAMS L.P., a
California limited partnership
By: SC ENTERPRISES, a California
limited partnership, the
Managing General Partner
1991 By:
Shurl Curci, General partner
ATTACHMENT NO. 5
(Page 5 of 5)
STATE Or CAL I PORN I A )
� ss.
COUNTY OF
On this day of , in the year
1991, before me, the undersigns , a Nota-r—y-PUblic in and for
said State, personally appeared
personally known to me (or proved to the on a as e o
satisfactory evidence) to be the person who executed this
instrument as the Chairman of the LA QUINTA REDEVELOPMENT
AGENCY and acknowledged to me that the LA QUINTA REDEVELOPMENT
AGENCY executed it.
Signature of Notary Public
game typed or printed
STATE OF CALIFOUTA )
� es.
COUNTY OF
On 1991 before me, the undersigned,
a Notary Public n and for said State, personally appeared
SHURL CURCI, personally known to me or proved to me on the
basis of satisfactory evidence to be the person who executed
the within instrument as a general partner of SC LNTERPRISES,
the limited partnership that executed the within instrument,
and acknowledged to me that such partnership executed the same
on behalf of Washington/Adams, L.P., a California limited
partnership, the partnership that executed the within
instrument, and acknowledged to me that said last named
partnership executed the same.
WITNESS my hand and official real.
Notary Public
(SEAL)
02/26/91
3927u/2338/09 ATTACMMNT NO. 6
EXHIBIT "A" TO ATTACHMENT NO. 6
"Legal Description of the Affected Property"
[To Be Inserted]
02/26/91 EXHIBIT "A" TO
3927u/2338/09 ATTACHMENT NO. 6
ATTACHMENT NO. 7
AGREEMENTS WITH TAXING AGENCIES
[To Be Inserted]
02/26/91
3927u/2338/09 ATTACHMENT NO. 7