Loading...
HomeMy WebLinkAboutSA-RDA 0851 1 1 RESOLUTION NO. SA -RDA 085 A RESOLUTION OF THE BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY APPROVING A PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS BY AND BETWEEN THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY AND PACIFIC WEST COMMUNITIES, INC. REGARDING THE SUCCESSOR'S AGENCY SALE OF AN APPROXIMATELY 11.94 ACRE PORTION OF THE PROPERTY LOCATED ALONG GERALD FORD DRIVE AND IDENTIFIED AS APN 694-310-006 PURSUANT TO SUCCESSOR AGENCY'S LONG RANGE PROPERTY MANAGEMENT PLAN AND TAKING RELATED ACTIONS RECITALS: A. Pursuant to AB X1 26 (enacted in June 2011) and the California Supreme Court's decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., 53 Cal. 4th 231 (2011), the former Palm Desert Redevelopment Agency (the "Former Agency") was dissolved as of February 1, 2012.. the Successor Agency to the Palm Desert Redevelopment Agency (the "Successor Agency"), as the successor entity to the Former Agency, was constituted, and a board of the Successor Agency (the ''Board") was established. B. AB X1 26 added Part 1.8 (commencing with Section 34161) and Part 1.85 (commencing with Section 34170) to Division 24 of the California Health and Safety Code ("HSC") (such Parts 1.8 and 1.85, including amendments and supplements enacted after AB X1 26, being referred to herein as the "Dissolution Act"). C. Pursuant to HSC Section 34179, commencing on July 1, 2018, the Countywide Oversight Board of the County of Riverside (the "Countywide Oversight Board") has jurisdiction over the Successor Agency and such Countywide Oversight Board replaced the local oversight board to the Successor Agency established upon the dissolution of the Former Agency (the "Oversight Board"). D. Pursuant to the Dissolution Act, the Successor Agency is tasked with winding down the affairs of the Former Agency. E. Pursuant to HSC Section 34175(b), all real properties of the Former Agency transferred to the control of the Successor Agency by operation of law. F. On May 5, 2014, the Oversight Board adopted Resolution No. OB-073, approving a Long -Range Property Management Plan (the "Original LRPMP") which addresses the disposition of the real properties owned by the Successor Agency. G. On June 2, 2014, the State Department of Finance (the '`DOF") approved the Original LRPMP. RESOLUTION NO. SA -RDA 085 H. On September 21, 2015, the Oversight Board approved an amendment to the Original LRPMP (the "LRPMP Amendment"). I. On December 9, 2015, the DOF approved the LRPMP, as amended by the LRPMP Amendment (the "LRPMP"). J. Pursuant to HSC Section 34191.3, the DOF-approved LRPMP shall govern, and supersede all other provisions of the Dissolution Act relating to the disposition and use of the real property assets of the Former Agency. K. Under the LRPMP, the Successor Agency is authorized to sell the real property located in the City of Palm Desert located along Gerald Ford Drive and identified as APN 694-310-006 (the "Site"). L. The Successor Agency and Pacific West Communities, Inc. (the "Developer") entered into an Exclusive Negotiation Agreement (the "ENA"), dated as of October 21, 2020, for the purpose of negotiating in good faith the terms and conditions upon which the Successor Agency would sell to the Developer the approximately +/- 11.94-acre portion of the Site which is described in Exhibit "A", attached hereto and incorporated herein (the "Property"). M. Pursuant to authority set forth in the ENA, the Executive Director of the Successor Agency extended the term of the ENA to April 27, 2021. N. On April 22, 2021, the Board of the Successor Agency further extended the term of the ENA to October 27, 2021, pursuant to the First Amendment to the ENA. O. Provided the Property is sold by December 31. 2022, the Property is not subject to the Surplus Lands Act (Government Code Title 5, Division 2, Part 1, Article 8, Sections 54220-54234) because the ENA was entered into prior to December 31, 2020. P. An appraisal of the Property was ordered from Novogradac Consulting, LLP, received and dated March 25, 2021. The report places the current appraised value of the Property at $4,500,000. Q. The Board is adopting this Resolution to approve an Agreement for Purchase and Sale and Escrow Instructions for the sale of the Property to the Developer for a purchase price equal to its appraised value and to authorize staff to supply the necessary materials for review by the Countywide Oversight Board. R. Under the Dissolution Act, the Countywide Oversight Board must approve the Successor's Agency sale of the Property to the Developer. NOW, THEREFORE, THE BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: -2- 12812-000112546223v2.doc RESOLUTION NO. SA -RDA 085 1 Section 1. The above recitals, and each of them, are true and correct and are a substantive part of this Resolution. Section 2. The Agreement for Purchase and Sale and Escrow Instructions, in the form attached hereto as Exhibit "B", (the "PSA"), is hereby approved, The Executive Director of the Successor Agency is hereby authorized to execute and deliver, for and in the name of the Successor Agency, the PSA in substantially such form, with such changes thereto as the Executive Director, in consultation with the Successor Agency legal counsel, may deem appropriate or necessary and consistent with the purposes of this Resolution (such approval to be conclusively evidenced by the execution and delivery thereof), provided that such execution and delivery shall occur after the effective date of a resolution of the Countywide Oversight Board approving the Successor Agency's execution and delivery of the PSA, and, if required, the approval or deemed approval by the DOF. Section 3. The Countywide Oversight Board is hereby requested to approve the Successor Agency's sale of the Property to the Developer and the execution and delivery of the PSA by the Successor Agency in substantially the form attached hereto as Exhibit 1317. Section 4. The members of this Board and the staff of the Successor Agency are hereby authorized, jointly and severally, to do all things which they may deem necessary or proper to effectuate the purposes of this Resolution and the sale of the Property, and any such actions previously taken are hereby ratified and confirmed. PASSED, APPROVED and ADOPTED on this 26th day of August, 2021, by the following vote, to wit: AYES: HARNIK, JONATHAN, NESTANDE, QUINTANILLA, and KELLY NOES: NONE ABSENT: NONE ABSTAIN NONE ATTES . NORMA I. ALLEY, MMC, SEC +y: ARY TO PALM DESERT SUCCES'' • R AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY KATHLEE ELLY, 12812-000112546223v2.doc -3- RESOLUTION NO. SA -RDA 085 (This page has intentionally been left blank.1 -4- 12812-000112546223v2.doc RESOLUTION NO. SA -RDA 08,5 1 1 EXHIBIT "A" The Land referred to herein below is situated in the City of Palm Desert, County of Riverside, State of California, and is described as follows: LEGAL DESCRIPTION A PORTION OF PARCEL 1 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE NO. 88-1, RECORDED JUNE 1, 1988 AS INSTRUMENT NO. 146461 OF OFFICIAL RECORDS. IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, LOCATED IN THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 32, TOWNSHIP 4 NORTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 1; THENCE NORTH 89°55'15" EAST, ALONG THE NORTHERLY LINE OF SAID PARCEL 1, SAID LINE ALSO BEING THE SOUTHERLY RIGHT-OF-WAY LINE OF GERALD FORD DRIVE, A DISTANCE OF 514.35 FEET; THENCE SOUTH 47°23'23" EAST, A DISTANCE OF 34.01 FEET; THENCE SOUTH 00°03'36" WEST, A DISTANCE OF 942.64 FEET; THENCE NORTH 89°56'24" WEST, A DISTANCE OF 539.40 FEET; THENCE NORTH 00°03'36" EAST, ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND THE SOUTHERLY EXTENSION THEREOF, A DISTANCE OF 964.39 FEET, TO THE POINT OF BEGINNING; SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS -OF - WAY OF RECORD. CONTAINING 520,257 SQUARE FEET OR 11.943 ACRES MORE OR LESS. AS DEPICTED ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. THIS LEGAL DESCRIPTION DOES NOT DESCRIBE A LEGAL PARCEL OF LAND. IT IS NOT TO BE USED FOR CONVEYANCE OR FINANCING OR ANY OTHER PURPOSE THAT WOULD BE A VIOLATION OF THE CALIFORNIA SUBDIVISION MAP ACT. 1 of 2 12812-0001 \2546223v2.doc -5- RESOLUTION NO. SA -RDA 085 EXHIBIT 'B' GERALD FORD DRIVE N 89'55'15. E 514.35' P.O.B.J 5 4T23"23" E NW COR PARCEL 1 34.01' CERTIFICATE of COMPLIANCE NO. 88-1 INST NO, 1988-148461 0' 200' 400' SCALE 1--200" N 00-03'36' E 964.39. S 00'03'36' W 942.64' N 89'56'24` W 539.40' N0' 0 a6R. G0 g8' • ,skc_G• REMBRANDT PARKWAY MSA CONSULTING, INC. ti PLANNING > CIVIL ENGINEERING > LAND SURVEYING 34200 BOB HOPE DR,VE, RANCHO MIRAGE. CA 92270 760,320.9811 MSACONSULTINCINC.COM J.N. 2619 2 of 2 -6- PORTOLA AVENUE SHEET 1 OF 1 12812-000112546223v2.doc RESOLUTION NO. SA -RDA 085 1 1 1 EXHIBIT "B" CONTRACT NO. SA40790A AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS (this "Agreement") is dated as of August 26, 2021 ("Effective Date"), and is entered into by and between PACIFIC WEST COMMUNITIES, INC. an Idaho corporation, (the "Buyer"), and the SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, a public body (the "Seller"). RECITALS A. The Seller is the owner of certain land located in the City of Palm Desert California, and legally described in "Exhibit A" attached hereto (the "Property"). B. The Seller desires to sell the Property to the Buyer, and the Buyer desires to purchase the Property from the Seller. NOW, THEREFORE, in consideration of the mutual terms and covenants herein, and other consideration, the sufficiency of which is hereby acknowledged, the Buyer and the Seller hereby agree as follows: 1. PURCHASE PRICE: DEPOSIT. 1.1 Sale and Purchase. The Seller agrees to sell the Property to the Buyer and the Buyer agrees to purchase the Property upon the terms and conditions hereafter set forth. 1.2 Purchase Price. The purchase price to be paid by the Buyer to the Seller for the Property shall be Four Million Five Hundred Thousand Dollars ($4,500,000.00) (the "Purchase Price"). 1.3 Deposit. Within five (5) business days after the opening of escrow under Section 4.2 below, the Buyer shall make a deposit of the sum of Twenty Thousand Dollars ($20,000.00), into the escrow with Escrow Holder (as hereinafter defined) (the "Deposit"). Escrow Holder shall hold the Deposit in an interest -bearing account. Upon the Close of Escrow, the Deposit shall be credited against the Purchase Price. If the Close of Escrow does not occur as a result of a termination of this Agreement due to the failure of a condition to closing or the default of the Seller, the Deposit shall be returned to the Buyer. If the Buyer breaches any obligation hereunder, and fails to cure such breach within five (5) business days after receipt of written notice from the Seller, then the Seller may terminate this Agreement and the Escrow by giving notice, in writing, of such termination to the Buyer and Escrow Holder, and the Deposit shall be delivered by Escrow Holder to the Seller to retain as liquidated damages for the Buyer's failure to purchase the Property, as the Seller's sole and exclusive remedy. 12812-0001\2546254v5. d oc -1- RESOLUTION NO. SA -RDA 085 IF CLOSING FAILS TO OCCUR SOLELY BECAUSE OF THE BUYER'S DEFAULT, THE SELLER WILL BE DAMAGED AND WILL BE ENTITLED TO COMPENSATION FOR THOSE DAMAGES, BUT SUCH DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO ASCERTAIN. THE BUYER DESIRES TO LIMIT THE AMOUNT OF DAMAGES FOR WHICH THE BUYER MIGHT BE LIABLE SHOULD BUYER BREACH THIS AGREEMENT. BOTH THE BUYER AND THE SELLER WISH TO AVOID THE COSTS AND LENGTHY DELAYS THAT WOULD RESULT IF THE SELLER FILED A LAWSUIT TO COLLECT ITS DAMAGES FOR A BREACH OF THIS AGREEMENT. IF CLOSING FAILS TO OCCUR BECAUSE OF THE BUYER'S DEFAULT, THEN THE DEPOSIT SHALL BE DEEMED TO CONSTITUTE A REASONABLE AND FINAL ESTIMATE OF THE SELLER'S DAMAGES AND SHALL BE RETAINED BY THE SELLER AS LIQUIDATED DAMAGES AS THE SELLER'S SOLE AND EXCLUSIVE REMEDY. THE SELLER AND THE BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE PROVISIONS OF THIS SECTION AND BY THEIR INITIALS IMMEDIATELY BELOW AGREE TO BE BOUND BY ITS TERMS. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, 1676 AND 1677. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. BUYER'S INITIALS SELLER'S INITIALS 2. TITLE. 2.1 General. Title to the Property shall be conveyed by a grant deed in the form attached hereto as "Exhibit B" ("Grant Deed") and shall be evidenced by a CLTA Standard Coverage Form of Owner's Policy of Title Insurance, the cost of which will be borne by the Seller, or an ALTA Extended Coverage Form Policy if the Buyer elects such coverage as provided in Section 2.3 hereof ("Title Policy"), the additional cost of which, and all endorsements thereto requested by the Buyer, shall be borne by the Buyer, and issued by ("Title Company") with liability in the full amount of the Purchase Price, insuring title to the Property as vested in the Buyer, free and clear of all liens and encumbrances and other matters affecting title to the Property, except the following (which shall constitute "Approved Title Exceptions" under Section 2.4 below): Project Area; and 12812-0001\2546254v5.doc 2.1.1 Non -delinquent real property taxes; 2.1.2 The fact that the Property is (or was) located in a Redevelopment 2.1.3 Such other matters as are approved by the Buyer. -2- RESOLUTION NO. SA -RDA 085 1 1 2.2 Acts After Date of Aareement. During the period from the Effective Date of this Agreement through the Close of Escrow, the Seller shall not record, or file for record or permit to be recorded or filed for record any document or instrument which will affect the title to or use of the Property without the prior written consent of the Buyer, which consent shall not be unreasonably withheld. 2.3 Option for ALTA Coveraae. The Buyer shall have the option of obtaining an ALTA Extended Coverage Form Policy of Title Insurance or a CLTA Standard Coverage Form Owners Policy of Title Insurance. If the Buyer elects to obtain an ALTA Extended Coverage Form Owners Policy of Title Insurance, the Buyer shall, at its expense, procure the ALTA Extended Coverage Survey (the "Survey"). The cost of the Survey shall be borne by the Buyer. 2.4 Title Review. Not later than thirty (30) days after the Effective Date, the Seller shall deliver to the Buyer a current title report from the Title Company for the Property and copies of the title exception documents and, except as otherwise provided in Section 2.1 above, the Buyer shall have the right to disapprove the title report and title exceptions and terminate this Agreement by written notice to the Seller given within thirty (30) days after the date the Seller delivers the title report and title exceptions to the Buyer ("Title Notice Date"). If the Buyer desires ALTA title insurance, the Buyer shall conduct a Survey and shall deliver it to the Title Company and shall have the right to disapprove matters disclosed by the Survey and terminate this Agreement by written notice to the Seller prior to the Title Notice Date. If the Buyer does not timely terminate, then the following (in addition to the matters described in Section 2.1) shall be "Approved Title Exceptions": (i) all matters in said title report and the Survey, and (ii) if the Buyer fails to obtain a Survey, all matters that would have been revealed or disclosed by such Survey. 3. RIGHT OF ENTRY. 3.1 The Seller hereby grants the Buyer and its agents, employees, contractors and subcontractors (collectively "Representatives") the right of entry to the Property at reasonable times after the Effective Date and prior to the expiration of the Investigation Period, as hereinafter defined, for the purpose of conducting soils and geological investigation and testing for toxic or hazardous substances and other contamination. Such investigation shall be at the Buyer's expense. If the Buyer desires to terminate this Agreement as a result of its inspection, the Buyer may do so by written notice to the Seller given on or before the expiration of the Investigation Period, as hereinafter defined. 3.2 The Buyer shall deliver advance written notice to the Seller of its intention to enter the Property to conduct activities pursuant to this Section 3 at least one (1) business day prior to any entry onto the Property. Such notice of entry shall include the proposed dates and times of such entry, and the nature, specific location and scope of any test, investigation, or other activity upon the Property, and shall be subject to the prior approval of the Seller which should not be unreasonably delayed or withheld. The Seller and it representatives shall have the right to accompany and observe all of the Buyer's and its Representatives' activities on the Property. 3.3 All work performed by the Buyer and its Representatives will be performed diligently and in a manner consistent with the standards of care, diligence and skill 12812-0001\2546254v5.doc -3- RESOLUTION NO. SA -RDA 085 exercised by recognized consulting firms for similar services, and in accordance with all regulatory and good management standards and the requirements of any governmental agency or entity and all applicable laws. 3.4 The Buyer and its Representatives shall promptly notify the Seller of any discovery, spill, release, or discharge of any "Hazardous Materials", as defined in Section 6.4, on, under or about the Property which is discovered, encountered, or results from or is related to the Buyer's or its Representatives' access to and/or use of the Property under this Agreement. 3.5 The Buyer and its Representatives shall remove from the Property any wastes and Hazardous Materials used in or generated solely by the activities of the Buyer or its Representatives on the Property no later than the date of completion of their environmental investigation activities and operations on the Property. 3.6 In connection with the use of the Property by the Buyer and its Representatives, the Buyer shall, at its own cost and expense, take any necessary action to keep the Property, and any improvements and personalty thereon, in good order and repair and safe condition to the extent that such Property, improvements or personalty were in such condition prior to its entry, and the whole of the Property, in a clean, sanitary and orderly condition, including, without limitation, ensuring that any holes, ditches or other indentations, as well as any mounds or other inclines created by any excavation by the Buyer or its Representatives are regraded, resurfaced and compacted. If any portion of the Property or an adjacent property, including improvements and fixtures, suffers damage or alteration by reason of the access and activities of the Buyer or its Representatives on the Property, the Buyer shall, at its own cost and expense, promptly repair all such damage and restore the Property or adjacent property to as good a condition as before such damage or alteration occurred, or if it cannot be repaired, the Buyer shall replace such damaged or altered property to the extent possible. 3.7 The Buyer agrees, at its sole cost and expense, to defend, protect, indemnify, and hold free and harmless the Seller and its directors, officers, employees, agents, and representatives, and their successors, and assigns (individually an "Indemnitee" and collectively, "Indemnitees"), free and harmless from and against any and all damages, costs, expenses, liabilities, claims, demands, causes of action, proceedings, expenses, judgments, penalties, liens, and losses of any nature whatsoever ("Claims"), including fees of accountants, attorneys, expert witnesses, or other professionals, and all costs associated therewith, arising, directly or indirectly, out of, in connection with, resulting from, or related to any negligent or willful act or failure to act by the Buyer or any of its Representatives and in connection with the entry upon the Property pursuant to this Section 3, except for that portion or percentage of a Claim against an Indemnitee based on the comparative negligence or willful misconduct of such Indemnitee. The provisions of this Section 3.7 shall survive the delivery of the Grant Deed, as hereinafter defined, and the termination of this Agreement. 3.8 The period from the Effective Date until and including the sixtieth (60th) day after the Effective Date shall be referred to herein as the "Investigation Period." If for any reason the Buyer is not satisfied with the physical condition or legal status of the Property (including but not limited to applicable zoning and other regulatory matters and restrictions or conditions on the ability of the owner of the Property to develop the Property), the Buyer shall 12812-0001\2 5 46254v5. d o c -4- RESOLUTION NO. SA -RDA 085 1 1 1 have the right to terminate this Agreement by written notice to the Seller on or before the end of the Investigation Period. Upon such termination the Deposit shall be returned to the Buyer and, except as otherwise herein provided, the Buyer and the Seller shall be deemed to have released each other from any and all liability and obligations relating to the Property and this Agreement. 4. ESCROW. 4.1 Aareement to Constitute Escrow Instructions. This Agreement shall constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder, as hereinafter defined, for that purpose. 4.2 Escrow Holder. The escrow shall be opened with ("Escrow Holder"), within five (5) business days following the Effective Date by the Buyer and the Seller depositing a copy of this Agreement (or copies of executed counterparts of this Agreement) with Escrow Holder. This document shall be considered as the escrow instructions between the parties, with such further instructions as the Buyer and the Seller may provide to Escrow Holder. Any such further escrow instructions shall incorporate each and every term of this Agreement and shall provide that in the event of any conflict between the terms and conditions of this Agreement and such further escrow instructions, the terms and conditions of this Agreement shall control. 4.3 Close of Escrow. For the purposes of this Agreement, ("Close of Escrow") shall be the date on which the Grant Deed for the Property in favor of the Buyer is recorded in the Official Records of the Riverside County Recorder's Office. Provided all of the Seller's and the Buyer's obligations to be performed on or before Close of Escrow have been performed and all the conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow shall close on or before December 31, 2022 (the "Closing Date"). If the Close of Escrow does not occur on or before December 31, 2022, this Agreement and the obligations of the parties hereunder (with the exception of those which are expressly to survive the termination of this Agreement, shall automatically terminate (unless the Buyer and the Seller agree to an extension in their sole and absolute discretion) and the Escrow Holder shall distribute all funds and documents held in the escrow as provided in Section 4.6 below. All risk of loss or damage with respect to the Property shall pass from the Seller to the Buyer at the Close of Escrow. Possession of the Property shall be delivered to the Buyer upon the Close of Escrow. 4.4 Buyer Reauired to Deliver. Not Tess than five (5) business days prior to the Close of Escrow, the Buyer shall deposit into escrow the following (properly executed, notarized and acknowledged, if applicable): 4.4.1 The Purchase Price; 4.4.2 Costs to be paid by the Buyer under Section 4.9 below; 4.4.3 All other documents contemplated by this Agreement and required by Escrow Holder to be deposited by the Buyer to carry out this escrow. 12 812-0001\2546254 v5. d oc -5- RESOLUTION NO. SA -RDA 085 4.5 Seller Reauired to Deliver. Not Tess than five (5) business days prior to the Close of Escrow, the Seller shall deposit into escrow the following (property executed, notarized and acknowledged, if applicable): 4.5.1 A grant deed conveying the Property to the Buyer, in the form attached hereto as "Exhibit B" and duly executed by the Seller and acknowledged (the "Grant Deed"); 4.5.2 A California 593 certificate and a federal non -foreign affidavit with respect to the Seller, if required by Escrow Holder; and 4.5.3 Any other documents contemplated by this Agreement or required by Escrow Holder or the Title Company to be deposited by the Seller to carry out this escrow. 4.6 Conditions to the Close of Escrow. The Close of Escrow shall be subject to, and conditioned upon, the satisfaction or express written waiver by the benefited party, or parties, of the following conditions (collectively, the "Closing Conditions"); 4.6.1 For the benefit of the Seller, the delivery of all documents and funds required to be delivered as provided herein; 4.6.2 For the benefit of the Buyer, the delivery by the Seller of all documents and funds required to be delivered as provided herein; 4.6.3 For the benefit of the Buyer, the Title Company shall have committed to issue at the Close of Escrow a CLTA Standard Form Owners Policy of Title Insurance or ALTA Extended Coverage Form Owners Policy of Title Insurance as provided in Section 2.1 above; 4.6.4 For the benefit of the Seller, the Buyer shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow; 4.6.5 For the benefit of the Buyer, the Seller shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow; 4.6.6 For the benefit of the Buyer and the Seller, the Property constitutes one or more separate legal parcels; 4.6.7 For the benefit of the Buyer and the Seller, the Buyer shall have applied for and been awarded a tax credit allocation as described in Section 7 of the Conditional Agreement (as defined below); 4.6.8 For the benefit of the Buyer and the Seller, the Buyer and the Palm Desert Housing Authority (the "Authority") shall have executed and delivered the loan agreement and related documents described in the Conditional Agreement Regarding Vitalia 12812-0001\2546254v5. d oc -6- RESOLUTION NO. SA -RDA 085 1 1 1 Multifamily Affordable Housing Project attached hereto as Exhibit "C", (the "Conditional Agreement") and the conditions precedent to the funding of the loan(s) referenced therein shall have been satisfied, and the funding shall occur simultaneously with the Close of Escrow; and 4.6.9 For the benefit of the Buyer and the Seller, all legal prerequisites to the sale of the Property to the Buyer shall have been satisfied. In the event that the conditions to Close of Escrow are not timely satisfied for a reason other than a default of the Buyer or the Seller under this Agreement, then upon termination of this Agreement, Escrow Holder shall promptly return to the Buyer all funds (and all interest accrued thereon) and documents deposited by the Buyer in escrow and to return to the Seller all funds and documents deposited by the Seller in escrow and which are held by Escrow Holder on the date of the termination (less, in the case of the party otherwise entitled to such funds, however, the amount of any cancellation charges required to be paid by such party under Section 4.11 below). 4.6.10 For the benefit of the Buyer and the Seller, prior to the Close of Escrow, (i) this Agreement shall have been presented to and approved by the Countywide Oversight Board for the County of Riverside, and (ii) all proceedings pertaining to the Property and this Agreement and required by the California Surplus Land Act (Government Code Section 54220 et seq.) have been completed to the satisfaction of the Seller and its counsel. 4.7 Recordation of Grant Deed: Delivery of Funds: Delivery of Possession. Upon receipt of the funds and instruments described in this Section 4, Escrow Holder shall cause the Grant Deed to be recorded in the office of the County Recorder of Riverside County, California. Thereafter, Escrow Holder shall deliver the proceeds of this escrow (less appropriate charges) to the Seller. Upon Close of Escrow, the Seller shall deliver possession and legal title of the Property to the Buyer, free and clear of any leases or occupancies. 4.8 Prorations. All real and personal property taxes and shall be prorated between the Buyer and the Seller as of the Close of Escrow, which in the case of taxes and assessments shall be based on the latest available tax information. Any supplemental or escape real estate taxes and assessments on the Property attributable to the period prior to the Close of Escrow shall be paid by the Seller outside of the escrow. All prorations shall be determined on the basis of a 360-day year. All taxes and assessments applicable to the Property from the date of Close of Escrow and thereafter shall be the Buyer's sole responsibility. 4.9 Costs of Escrow. 4.9.1 The Seller shall pay: (a) The premium for the CLTA Standard Title Policy; (b) One-half (%) of the escrow fees and reasonable and customary escrow costs; and 12812-0001\2546254v5.doc -7- RESOLUTION NO. SA -RDA 085 (c) Any other closing costs or charges not expressly provided for herein and customarily paid by a Seller of real property in Riverside County, California. 4.9.2 The Buyer shall pay: (a) One-half (%) of the escrow fees and reasonable and customary escrow fees; (b) The cost of recording the Grant Deed, if any; (c) The cost of documentary transfer taxes in connection with the recordation of the Grant Deed, if any; (d) The excess cost of an ALTA extended title policy, if the Buyer has so elected; and (e) Any other closing costs or charges not expressly provided for herein and customarily paid by a Buyer of real property in Riverside County, California. 4.10 Broker's Commission. The Buyer and the Seller represent to one another that no broker or finder has been engaged in connection with the transaction contemplated by this Agreement, or to its knowledge is in any way connected with such transaction. Each party covenants and agrees that any other broker fee or commission, which may be due or payable in connection with the closing of the transaction contemplated by this Agreement through its dealings with that party, shall be borne solely by that party. The Buyer hereby agrees to indemnify, defend, protect and hold harmless the Indemnitees, from and against all claims of any agent, broker, finder or other similar party arising from or in connection with its activities relating to the sale of the Property to the Buyer by the Seller. Notwithstanding anything to the contrary contained herein, the provisions of this Section 4.10 shall survive the delivery of the Grant Deed and the termination of this Agreement. 4.11 Escrow Cancellation Charaes. In the event that this escrow shall fail to close by reason of the default of either party hereunder, the defaulting party shall be liable for all escrow and title cancellation charges. In the event that the escrow shall fail to close for any other reason, each party shall pay one-half ('/2) of all escrow and title cancellation charges. 5. EMINENT DOMAIN OR TAKING: PHYSICAL DAMAGE OR DESTRUCTION. 5.1 If, prior to the Close of Escrow, any material portion of the Property is taken or if the access thereto or available parking area therefor is reduced or restricted by eminent domain or otherwise (or becomes the subject of a pending, threatened or contemplated taking which has not been consummated), the Seller shall immediately notify the Buyer of such fact. In such event, the Buyer shall have the option, in its sole and absolute discretion, to terminate this Agreement upon written notice to the Seller given not later than 12812-0001\2546254v5.doc -8- RESOLUTION NO. SA -RDA 085 1 1 1 ten (10) business days after receipt of the Seller's notice. If the Buyer does not exercise this option to terminate this Agreement, neither party shall have the right to terminate this Agreement, but the Seller shall assign and turn over to the Buyer, and the Buyer shall be entitled to receive and keep, all awards for the taking by eminent domain which accrue to the Seller, and the parties shall proceed to the Close of Escrow pursuant to the terms hereof, without modification of the terms of this Agreement and without any reduction in the Purchase Price. Unless and until this Agreement is terminated, the Seller shall take no action with respect to any eminent domain proceeding without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. 5.2 If, prior to the Close of Escrow, any material portion of the Property is physically damaged or destroyed due to any cause, natural or otherwise, including, without limitation, (i) fire or flooding, (ii) any destructive seismic or geological conditions such as any earthquake or tremor, subsidence, or unstable subsurface conditions; or (iii) a condition arising from any discharge of Hazardous Materials or other violation of any Environmental Laws, the Seller shall immediately notify the Buyer of such fact. In such event, the Buyer shall have the option, in its sole and absolute discretion, to terminate this Agreement upon written notice to the Seller given not later than ten (10) business days after receipt of the Seller's notice. If the Buyer does not exercise this option to terminate this Agreement, neither party shall have the right to terminate this Agreement, but the Seller shall assign and turn over, and the Buyer shall be entitled to receive and keep, all insurance proceeds paid by the Seller's insurer in connection with such damage or destruction, and the parties shall proceed to the Close of Escrow pursuant to the terms hereof, without modification of the terms of this Agreement and without any reduction in the Purchase Price. Unless and until this Agreement is terminated, the Seller shall take no action with respect to any such damage and destruction without the prior written consent of the Buyer, which consent shall not be unreasonably withheld or delayed. 6. CONDITION OF PROPERTY; "AS -IS" SALE; INDEMNITY AND RELEASE. 6.1 There are no representations or warranties of any kind whatsoever, express or implied, made by the Seller, including, without limitation, any representation or warranty concerning the potential use, development or physical condition of the Property (including the presence of any Hazardous Materials, as hereinafter defined) or any income, expenses, or any other matter or thing arising or related to the Property. Except as otherwise expressly provided for herein, the purchase of the Property hereunder is and will be made on an "AS IS AND WITH ALL FAULTS" basis. The Seller shall not be required to make any repairs, alterations or improvements to the Property, except as expressly provided in this Agreement. The Buyer shall fully investigate the Property, including, but not limited to, analysis of soils and Hazardous Materials, zoning and use issues and other matters which a prudent purchaser would deem necessary, and in the event the Buyer shall purchase the Property, the Buyer will be relying entirely on its own investigation of the Property. 6.2 FOLLOWING THE CLOSING AND EXCLUDING ANY CLAIMS FOR BREACH BY THE SELLER UNDER THIS AGREEMENT, THE BUYER HEREBY WAIVES ITS RIGHT TO RECOVER FROM AND FULLY AND IRREVOCABLY RELEASES THE SELLER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND CONTRACTORS (COLLECTIVELY, THE "RELEASED PARTIES") FROM ANY AND ALL CLAIMS, RESPONSIBILITY AND/OR LIABILITY THAT THE BUYER MAY NOW HAVE OR 12812-0001\2546254v5. d oc -9- RESOLUTION NO. SA -RDA 085 HEREAFTER ACQUIRE AGAINST ANY OF THE RELEASED PARTIES FOR ANY COSTS, LOSSES, LIABILITIES, DAMAGES, EXPENSES, CLAIMS, DEMANDS, ACTION OR CAUSE OF ACTION ARISING FROM HAZARDOUS MATERIALS IN, ON OR UNDER THE PROPERTY. THIS RELEASE INCLUDES CLAIMS OF WHICH THE BUYER IS PRESENTLY UNAWARE OR WHICH THE BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY THE BUYER, WOULD MATERIALLY AFFECT THE BUYER'S RELEASE OF THE RELEASED PARTIES. IF THE PROPERTY IS NOT IN A CONDITION SUITABLE FOR THE INTENDED USE OR USES, THEN IT IS THE SOLE RESPONSIBILITY AND OBLIGATION OF THE BUYER TO TAKE SUCH ACTION AS MAY BE NECESSARY TO PLACE THE PROPERTY IN A CONDITION SUITABLE FOR DEVELOPMENT. THE BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH IS SET FORTH BELOW: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY." BY INITIALING BELOW, THE BUYER HEREBY WAIVES THE PROVISIONS OF CIVIL CODE SECTION 1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES. Buyer's Initials The waivers and releases by the Buyer herein contained shall survive the Close of Escrow and the delivery of the Grant Deed. 6.3 To the full extent permitted by law, following the Closing, the Buyer shall defend, indemnify and hold the Indemnitees harmless from and against any and all claims, losses, damages, costs and expenses arising from or relating to the presence of Hazardous Materials in, on or under the Property, other than those known by the Seller to be present at the Close of Escrow but not disclosed to the Buyer prior to the end of the Investigation Period. This Section 6.3 shall survive the delivery of the Grant Deed and the termination of this Agreement. 6.4 The term "Hazardous Materials" as used in this Agreement shall mean and include the following, including mixtures thereof: any hazardous substance, pollutant, contaminant, waste, by-product or constituent regulated under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq.; oil and petroleum products and natural gas, natural gas liquids, liquefied natural gas and synthetic gas usable for fuel; pesticides regulated under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et seq.; asbestos and asbestos -containing 12812-0001\2546254v5.doc -10- RESOLUTION NO. SA -RDA 085 1 1 1 materials, PCBs and other substances regulated under the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; source material, special nuclear material, by-product material and any other radioactive materials or radioactive wastes, however produced, regulated under the Atomic Energy Act or the Nuclear Waste Policy Act of 1982; chemicals subject to the OSHA Hazard Communication Standard, 29 C.F.R. Section 1910.1200 et seq.; industrial process and pollution control wastes, whether or not hazardous within the meaning of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; any substance defined as a "hazardous substance" in California Civil Code Section 2929.5(e)(2) or California Code of Civil Procedure Section 736(f)(3); and any other substance or material regulated by any Environmental Laws, defined below. 6.5 The term "Environmental Laws" as used in this Agreement shall mean and include all federal, state and local statutes, ordinances, regulations and rules in effect on or prior to the Effective Date hereof relating to environmental quality, health, safety, contamination and clean-up, including, without limitation, the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; and the Water Quality Act of 1987; the Federal Insecticide, Fungicide, and Rodenticide Act 7 U.S.C. Section 136 et seq.; the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et seq.; the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; the Noise Control Act, 42 U.S.C. Section 4901 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Resource Conservation and Recovery Act 42 U.S.C. Section 6901 et seq.; as amended by the Hazardous and Solid Waste Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; the Comprehensive Environmental Response, Compensation and Liability Act 42 U.S.C. Section 9601 et seq.; as amended by the Superfund Amendments and Reauthorization Act, the Emergency Planning and Community Right -to -Know Act and the Radon Gas and Indoor Air Quality Research Act; the Toxic Substances Control Act 15 U.S.C. Section 2601 et seq.; the Atomic Energy Act, 42 U.S.C. Section 2011 et seq.; and the Nuclear Waste Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and state and local environmental statutes and ordinances, and implementing regulations and rules. 7. INCORPORATION OF EXHIBITS. All exhibits attached hereto and referred to herein are incorporated in this Agreement as though fully set forth herein. 8. ATTORNEYS' FEES. In any action between the Buyer and the Seller seeking enforcement of any of the terms and provisions of this Agreement, or in connection with the Property, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to taxable costs, reasonable attorneys' fees and reasonable fees of expert witnesses. 9. NOTICES. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and sent by first class United States registered or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express, duly addressed to the parties as follows: -11- 12812-0001\2546254v5.doc RESOLUTION NO. SA -RDA 085 To Seller: To Buyer: With a copy to: Successor Agency to the Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: L. Todd Hileman, Executive Director Pacific West Communities, Inc. 430 E. State Street, Suite 100 Eagle, ID 83616 Attn: Caleb Roope Katten Muchin Rosenman LLP 525 W. Monroe St. Chicago, IL 60661-3693 Attn: David Cohen Delivery of any notice or other communication hereunder shall be deemed made on the date indicated in the return receipt or courier's records as the date of delivery or as the date of first attempted delivery, if sent by mail or courier service. Any party may change its address for purposes of this Section by giving notice to the other party as herein provided. 10. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other party, provided that the Buyer may assign its interest hereunder to a California limited partnership pursuant to which the administrative general partner is controlled by the Buyer. 11. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their successors and assigns. 12. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended, supplemented or in any way modified except by an agreement in writing signed by the parties hereto or their respective successors in interest and expressly stating that it is an amendment of this Agreement. 13. HEADINGS. The headings of this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions of this Agreement. 14. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. 15. TIME OF THE ESSENCE. Time is of the essence of this Agreement. 16. THIRD PARTIES. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 12812-0001\2546254v5.doc -12- RESOLUTION NO. SA -RDA 085 1 1 1 17. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforceability materially affects the economic terms of the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case, either party may terminate this Agreement and the escrow upon written notice to the other party given no later than ten (10) business days after the party giving such notice becomes aware of such invalidity, illegality or unenforceability. In the event of such termination, all funds deposited with Escrow Holder by the Buyer and any interest accrued thereon shall be returned to the Buyer. 18. ADDITIONAL DOCUMENTS. Each party hereto agrees to perform any further acts and to execute, acknowledge and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement. 19. GOVERNING LAW: VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California (without regard to conflict laws, principles or rules). All legal actions under, or in connection with this Agreement shall be filed and maintained by the Buyer and the Seller in courts located in Riverside County. 20. BUSINESS DAY. If the final day of any period or any date of performance (including the Investigation Period) under this Agreement falls on a Saturday, Sunday or legal holiday, then the final day of the period or the date of such performance shall be extended to the next business day. [Remainder of this page intentionally left blank] [Signatures appear on next page] 12812-0001\2546 254 v5. d o c -13- RESOLUTION NO. SA -RDA 085 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BUYER: PACIFIC WEST COMMUNITIES, INC., an Idaho corporation By: Print Name: Caleb Roope Title: President SELLER: SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY. a California municipal corporation By: L. Todd Hileman Executive Director Attest: Norma I. Alley, MMC Secretary APPROVED AS TO FORM: Richards, Watson & Gershon By: -14- Jim G. Grayson 12812-0001\2546254v5.doc RESOLUTION NO. SA -RDA 085 EXHIBIT A DESCRIPTION OF THE PROPERTY The Land referred to herein below is situated in the City of Palm Desert, County of Riverside, State of California, and is described as follows: LEGAL DESCRIPTION A PORTION OF PARCEL 1 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE NO. 88-1, RECORDED JUNE 1, 1988 AS INSTRUMENT NO. 146461 OF OFFICIAL RECORDS. IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, LOCATED IN THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 32, TOWNSHIP 4 NORTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 1; THENCE NORTH 89°55'15" EAST, ALONG THE NORTHERLY LINE OF SAID PARCEL 1, SAID LINE ALSO BEING THE SOUTHERLY RIGHT-OF-WAY LINE OF GERALD FORD DRIVE, A DISTANCE OF 514.35 FEET; THENCE SOUTH 47'23'23" EAST, A DISTANCE OF 34.01 FEET; THENCE SOUTH 00'03'36" WEST, A DISTANCE OF 942.64 FEET; THENCE NORTH 89°56'24" WEST, A DISTANCE OF 539.40 FEET; THENCE NORTH 00°03'36" EAST, ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND THE SOUTHERLY EXTENSION THEREOF, A DISTANCE OF 964.39 FEET, TO THE POINT OF BEGINNING; SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS -OF - WAY OF RECORD. CONTAINING 520,257 SQUARE FEET OR 11.943 ACRES MORE OR LESS. AS DEPICTED ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. THIS LEGAL DESCRIPTION DOES NOT DESCRIBE A LEGAL PARCEL OF LAND. IT IS NOT TO BE USED FOR CONVEYANCE OR FINANCING OR ANY OTHER PURPOSE THAT WOULD BE A VIOLATION OF THE CALIFORNIA SUBDIVISION MAP ACT. 12 812-0001\2546254v5. d o c Exhibit A-1 RESOLUTION NO. SA -RDA 085 EXHIBIT 'By GERALD FORD DRIVE N 89'55' 15' E 514.35' P.O.B. S 4723'23. Ef NW COR PARCEL 1 34.01' CERTIFICATE OF COMPLIANCE N0. 88-1 INST NO. 1988-148461 '36. E 964.39 z 0' I � SCALE 1"-200' 200 400' 12812-0001\2546254v5.d0c 5 0003'36" w 942.64' REMBRANDT PARKWAY N 89.56,24,, W 539.40' ��1 RG�� \.\PNGA6, 0 PG�\,ga$��a Q 06 MSA CONSULTING, 1NC. PLANNING > CIVIL ENGINEERING r LAND SURVEYING 34200 00B HOPE DP.VE, RANCHO MIRACE, CA 92270 760320.9811 MSACONSULTINCINC.COM J.N. 2619 Exhibit A-2 PORTOLA AVENUE SHEET 1 OF 1 RESOLUTION NO. SA -RDA 085 1 1 1 EXHIBIT B FORM OF GRANT DEED RECORDING REQUESTED BY: Successor Agency to the Palm Desert Redevelopment Agency AND WHEN RECORDED RETURN TO AND SEND TAX STATEMENTS TO: Pacific West Communities, Inc. 430 E. State Street, Suite 100 Eagle, ID 83616 Attention: Darren Berberian APN: Space Above This Line For Recorder's Use This Grant Deed is exempt from Recording Fees pursuant to California Government Code Sections 6103 and 27383 GRANT DEED Documentary Transfer Tax: $ THE UNDERSIGNED GRANTOR DECLARES: FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, the SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, a public body (the "Grantor"), hereby grants to , a California limited partnership (the "Grantee"), that certain real property described in Exhibit A attached hereto (the "Property") and incorporated herein by this reference, together with all improvements located thereon and all of the Grantor's right title and interest in and to all easements, privileges and rights appurtenant to the Property. SUBJECT TO: General and special real property taxes and assessments and supplemental assessments for the current fiscal year; All liens, encumbrances, easements, covenants, conditions and restrictions of record; All matters which would be revealed or disclosed in an accurate ALTA survey of the Property. Exhbit B-1 12812-0001\2546254v5. doc RESOLUTION NO. SA -RDA 085 IN WITNESS WHEREOF, the Grantor has executed this Grant Deed as of , 2021. GRANTOR: ATTEST: Norma I. Alley, Secretary SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, a California municipal corporation By: Name: Kathleen Kelly Title: Chairman Exhibit B-2 12812-0001\2546254v5.doc RESOLUTION NO. SA -RDA 085 1 1 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF RIVERSIDE ) On , before me, a notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing Section is true and correct. WITNESS my hand and official seal. Notary Public SEAL: Exhbit B-3 12812-0001\2546254v5.doc RESOLUTION NO. SA -RDA 085 Exhibit A to Grant Deed The Land referred to herein below is situated in the City of Palm Desert, County of Riverside, State of California, and is described as follows: LEGAL DESCRIPTION A PORTION OF PARCEL 1 OF THAT CERTAIN CERTIFICATE OF COMPLIANCE NO. 88-1. RECORDED JUNE 1, 1988 AS INSTRUMENT NO. 146461 OF OFFICIAL RECORDS. IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, LOCATED IN THE NORTHWEST QUARTER OF THE NORTHEAST QUARTER OF SECTION 32, TOWNSHIP 4 NORTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 1; THENCE NORTH 89°55'15" EAST, ALONG THE NORTHERLY LINE OF SAID PARCEL 1, SAID LINE ALSO BEING THE SOUTHERLY RIGHT-OF-WAY LINE OF GERALD FORD DRIVE, A DISTANCE OF 514.35 FEET; THENCE SOUTH 47°23'23" EAST, A DISTANCE OF 34.01 FEET; THENCE SOUTH 00'03'36" WEST, A DISTANCE OF 942.64 FEET; THENCE NORTH 89°56'24" WEST, A DISTANCE OF 539.40 FEET; THENCE NORTH 00°03'36" EAST, ALONG THE WESTERLY LINE OF SAID PARCEL 1 AND THE SOUTHERLY EXTENSION THEREOF, A DISTANCE OF 964.39 FEET, TO THE POINT OF BEGINNING; SUBJECT TO EXISTING EASEMENTS, COVENANTS, RIGHTS AND RIGHTS -OF - WAY OF RECORD. CONTAINING 520,257 SQUARE FEET OR 11.943 ACRES MORE OR LESS. AS DEPICTED ON EXHIBIT "B" ATTACHED HERETO AND MADE A PART HEREOF. THIS LEGAL DESCRIPTION DOES NOT DESCRIBE A LEGAL PARCEL OF LAND. IT IS NOT TO BE USED FOR CONVEYANCE OR FINANCING OR ANY OTHER PURPOSE THAT WOULD BE A VIOLATION OF THE CALIFORNIA SUBDIVISION MAP ACT. Exhbit B-4 12812-0001\2546254v5. d ac RESOLUTION NO. SA -RDA 085 1 1 1 Exhibit A to Grant Deed EXHIBIT "B' GERALD FORD DRIVE _N. N 89'55' 15. E 514.35' P.O.6-/if S 47'23'23. EJ - a NW COR PARCEL 1 34.01' CERTIFICATE OF COMPLIANCE NO. 88-1 INST NO. 1988-148461 0' 200' 400' SCALE 1'-200' 00-03'36' E 964.39' z 0t70J N 89'56'24' W 539.40, $?)i� GPIt pro 0 91 a9aa, R. ctR�\E\ \\45 ' 061 RE MSA CONSULTING, INC. PLANNING > CIVIL ENGINEERING s LAND SURVEYING 34200 BOB HOPE DRIVE. RANCHO MIRAGE, CA 92270 760320.9811 MSACONSULTINCINC.COM J.N. 2619 PORTOLA AVENUE SHEET 1 OF 1 12812-0001\2546254v5.doc Exhibit B-5 RESOLUTION NO. SA -RDA 085 EXHIBIT C CONDITIONAL AGREEMENT September 1, 2021 Caleb Roope Pacific West Communities, Inc. 430 East State Street, Suite 100 Eagle, ID 83616 Subject: Conditional Agreement Regarding Vitalia Apartments Dear Mr. Roope: The Palm Desert Housing Authority (the "Housing Authority"), has approved a request from your firm, Pacific West Communities, Inc. ("Pacific West"), to finance a loan for the purchase of a +/-11.94-acre portion of APN 694-310-006 (the "Property"), located on the south side along Gerald Ford Drive at the intersection of Rembrandt Parkway directly east of the Riverside County Sheriff Station for the fair market price (as established by a third party appraiser), in the total amount of Six Million Thirty Thousand Dollars ($6,030,000.00) (the "Housing Authority Loan") for the development of a 269-unit multi- family apartment community located on that certain real property located in the City of Palm Desert, California (the "City") and known as Vitalia Apartments (the "Project"). As of August 26, 2021, the Authority has conditionally approved of the proposed Loan commitment of the Housing Authority Loan to Six Million Thirty Thousand Dollars ($6,030,000), subject to the following: 1. Project. The Project will be operated for a period of fifty-five (55) years following the date of completion of the Project and issuance of a certificate of occupancy to provide affordable housing to persons and households of low and very -low income in accordance with the affordability restrictions contained in the Loan Agreement (as defined below) and in accordance with the Tax Exempt Bonds and Low -Income Housing Tax Credit financing being used by the Project. To the extent necessary, the Housing Authority shall subordinate the deed of trust securing the Housing Authority Loan to the liens and encumbrances of the Project's construction and permanent lenders. The Housing Authority will not subordinate its interests in the regulatory agreement referenced in Section 3 below, and the City will not subordinate its interest in any regulatory agreement that is required to be recorded against the Property by virtue of a density bonus granted pursuant to Resolution No. 2021-57 of the City, to the liens or encumbrances of the Project's construction and permanent lenders. Exhibit C-1 12812-0001\2546254v5. d oc 1 1 1 RESOLUTION NO. SA -RDA 085 Caleb Roope, President Pacific West Communities, Inc. 2. Proiect Owner. The Project owner shall be a California limited partnership whose administrative general partner is controlled by Pacific West Communities, Ins., an Idaho corporation, or its affiliates. 3. Housina Authority Loan Documents. The proposed structuring of the Housing Authority Loan will be evidenced by, among other things, a loan and development agreement (the "Loan Agreement"), and a promissory note, deed of trust and regulatory agreement, (collectively, the "Loan Documents"), each in form and substance acceptable to the Housing Authority and its counsel, and executed by the Project Owner and the Housing Authority as applicable. 4. Housina Authority Loan Terms. The Housing Authority Loan shall have a term of fifty-five (55) years, commencing as of the effective date of the Loan Agreement and shall bear simple interest at three percent (3%) per annum. The Housing Authority Loan shall be repaid from fifty -percent (50%) the Project's residual receipts remaining after payment of fees (including deferred developer fees, investor fees, partnership fees, and management fees), debt service and operating expenses. 5. Affordability Restrictions. (i) A total of 81 Units are to be restricted by Health and Safety Code Sections 50106 and 50053 as Extremely -Low Income units: a. 39 one -bedroom units b. 21 two -bedroom units c. 21 three -bedroom units (ii) A total of 186 Units are to be restricted by Health and Safety Code Sections 50079.5 and 50053 (assuming rent is calculated at 80% of the Riverside County Area Median Income instead of 50% AMI) as Low Income Units: a. 92 one -bedroom units b. 46 two -bedroom units c. 47 three -bedroom units (iii) Three 2-bedroom units will be unrestricted and used as onsite manager units. 6. Construction and Permanent Lender Loan Documents. The loan documentation pertaining to the proposed construction and permanent loans to finance the Project, and all related instruments, shall be submitted 12812-0001\2546254v5.d oc Exhibit C-2 RESOLUTION NO. SA -RDA 085 Caleb Roope, President Pacific West Communities, Inc. to the Housing Authority for its approval and shall be in form and substance acceptable to, and approved by, the Board of the Housing Authority and its counsel. 7. Award of Tax-Exemot Bonds from CDLAC . Prior to Loan closing and funding, the Project shall have all of their funding sources committed. This includes but is not limited to have been awarded the allocation of tax- exempt bonds pursuant to an application therefor by Pacific West Communities, Inc. to the California Debt Limit Allocation Committee (CDLAC), California Tax Credit Allocation Committee for State Tax Credits and any other funding source. 8. No Third Party Beneficiaries. This letter is solely for the benefit of the Housing Authority and Pacific West Communities, Inc., and shall not inure to the benefit of, or be relied upon by, any other person or entity other than the Project Owner. 9. Counterparts. This letter may be executed in counterparts, with the same effect as if each counterpart were an original document. Very truly yours, Palm Desert Housing Authority By: Name: L. Todd Hileman Its: Executive Director AGREED BY PACIFIC WEST COMMUNITIES, INC.: By: Caleb Roope, President Date: , 2021 Exhibit C-3 12812-0001\2546254v5. doc