HomeMy WebLinkAboutRes 06-13 and 516 Approving DDA w-Coachella Valley Water District CVWDSUBJECT:
SUBMITTED BY:
DATE:
ATTACHMENTS:
PALM DESERT REDEVELOPMENT AGENCY
STAFF REPORT
RESOLUTION NO. 516 : A RESOLUTION OF THE PALM DESERT
REDEVELOPMENT AGENCY APPROVING A DISPOSITION AND
DEVELOPMENT AGREEMENT WITH COACHELLA VALLEY
WATER DISTRICT
RESOLUTION NO.06-13 : A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF PALM DESERT APPROVING A DISPOSITION
AND DEVELOPMENT AGREEMENT WITH COACHELLA VALLEY
WATER DISTRICT
Carlos L. Ortega, Executive Director
February 9, 2006
1) Agency Resolution No. 516
2) City Resolution No. 06-13
3) 33433 Report
4) Disposition and Development Agreement
5) Maps of Subject Properties
RECOMMENDATION
By Minute Motion:
1. APPROVE Resolution No. 516 : A Resolution of the Palm Desert Redevelopment
Agency approving a Disposition and Development Agreement with Coachella Valley
Water District.
2. APPROVE Resolution No. 06-13 : A Resolution of the City Council of Palm Desert
approving a Disposition and Development Agreement with Coachella Valley Water
District.
EXECUTIVE SUMMARY
The Coachella Valley Water District desires to enter into a Disposition and Development
Agreement with the Palm Desert Redevelopment Agency for the conveyance of real
property.
CVWD representatives indicated their desire to obtain Agency property located on
approximately 5.84 acres of vacant land at the Southeast Comer of Beacon Hill Drive and
Hovley Lane, valued at $2,670,000. The District would like to use this property in
expanding their current facilities that are adjacent to this parcel. The expansions will likely
include new general office, fleet, and meeting facilities to house operational, administrative,
and service personnel. There is also the potential that laboratory facilities may be located
P640210001\871873.2
Disposition & Development Agreement
February 9, 2006
Page 2 of 3
on this site. The Agency in return would acquire approximately 1.88 acres of vacant land
along Portola Avenue, adjoining the Marrakesh Country Club, valued at $544,000.
In addition to obtaining the 1.88 acres, the Agency would also enter into an Option
Agreement to potentially acquire from the District unimproved real property adjacent to the
District's property, known as "El Dorado West." The purchase price to be paid by the
Agency for the option property will be equal to its fair market value as determined at the
time the option is exercised by the Agency. A surveyor's map is attached concerning this
option parcel. The Agency's right to exercise this option would expire in approximately ten
years. Please note that the District Board approved this Agreement on December 13,
2005.
DISCUSSION
A report Pursuant To Section 33433 Of The California Health and Safety Code was
prepared by Real Estate Analysis Services, Co., concerning the proposed conveyance of
Agency property to the Coachella Valley Water District. The following is a summary of the
major business points of the proposed Disposition and Development Agreement
("Agreement") between the Palm Desert Redevelopment Agency ("Agency") and Coachella
Valley Water District ("District") concerning the proposed acquisition by the District of
certain real property owned by the Agency:
A. District Property:
The district owns fee title to certain unimproved real property ("District Property") in the
City of Palm Desert (the "City"). The District Property is legally described in Exhibit A of the
Agreement and is comprised of approximately 1.88 gross acres. A recent appraisal found
the market value of the District Property to be $544,000.
B. Option Parcel:
The District also owns fee title to certain unimproved real property ("Option Parcel") in the
City. The Option Parcel is legally described in Exhibit B of the Agreement and is comprised
of approximately 10.33 gross acres.
C. Aaencv Property:
The agency owns fee title to certain unimproved real property ("Agency Property") in the
City. The Agency Property is legally described in Exhibit C of the Agreement and is
comprised of approximately 5.84 gross acres. A recent appraisal found the market value
of the Agency Property to be $2,670,000.
D. Desire of the Parties:
The Parties desire that District acquire the Agency Property in exchange for the District
Property and Agency's right to acquire the Option Parcel for the consideration and on the
terms set forth in the Agreement and the Option Agreement.
E. Conveyance of the Agency Property:
1. Subject to the terms and conditions of the Agreement, Agency proposes to
convey the Agency Property to the District.
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Disposition & Development Agreement
February 9, 2006
Page 3 of 3
2. As consideration for the Agency Property, the District shall convey the District
Property to the Agency, execute the Option Agreement and pay $2,670,000.00
to the Agency ("District Payment").
F. Conveyance of the District Property:
1. Subject to the terms and conditions of the Agreement, District shall convey the
District Property to the Agency.
2. As consideration for the District Property, the Agency shall convey the Agency
Property to the District and pay $544,000.00 to the District ("Agency Payment").
At the close of escrow for the transaction, the parties shall execute an Option
Agreement and a Memorandum of Option.
Submitted by:
Carlos L. Orte,
City Manager,
Reviewed by:
J
Paul S. Gibson
Director of Finance
development
P6402\00011871873.2
RESOLUTION NO. 51.6
A RESOLUTION OF THE PALM DESERT REDEVELOPMENT AGENCY
APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT WITH
COACHELLA VALLEY WATER DISTRICT
THE PALM DESERT REDEVELOPMENT AGENCY HEREBY FINDS,
DETERMINES, RESOLVES AND ORDERS AS FOLLOWS:
Section 1. In order to effectuate the provisions of the Redevelopment Plan (the
"Redevelopment Plan") for Project Area No. 3 (the "Project Area"), the Palm Desert Redevelopment
Agency (the "Agency") proposes to enter into a Disposition and Development Agreement (the
"Agreement") with Coachella Valley Water District (the "Purchaser"), pursuant to which Agreement
the Agency will convey to the Purchaser title to that certain real property described in Exhibit C to
the Agreement (the "Agency Property") and located in the City of Palm Desert, California (the
"City"), in exchange for the conveyance by the Purchaser to the Agency of title to that certain real
property described in Exhibit A to the Agreement (the "Purchaser Property"), the granting of an
option to the Agency to acquire that certain real property described in Exhibit B to the Agreement
(the "Option Parcel"), and other consideration, all on the terms and conditions set forth in the
Agreement.
Section 2. On February 9, 2006, the City Council and the Agency Board held a duly
noticed public hearing on the approval of the Agency's proposed conveyance of the Agency Property
to the Purchaser pursuant to the Agreement, at which time all persons desiring to comment on, or ask
questions concerning, the Agreement were given the opportunity to do so. Prior to the public
hearing, information concerning the Agency's proposed conveyance of the Agency Property to the
Purchaser was available for public inspection in office of the City Clerk in accordance with Health
and Safety Code Section 33433.
Section 3. The Agency has obtained an evaluation of the value of the Agency
Property from R.F. Sweet & Associates (Palm Desert, CA), which has determined that the fair
market value of the Agency Property, at the highest and best use in accordance with the
Redevelopment Plan for the Project Area, is equal to the fair market value of the Purchaser Property
and the other consideration for which the Agency Property will be exchanged.
Section 4. Based upon the foregoing and other information presented to the Agency,
the Agency hereby finds and determines that (i) the conveyance of the Agency Property to the
Purchaser is consistent with the Agency's implementation plan adopted pursuant to Health and
Safety Code Section 33490; (ii) the conveyance of the Agency Property to the Purchaser pursuant to
the Agreement will assist in the elimination of one or more blighting conditions inside the Project
Area, and (iii) the consideration for the Agency Property is not less than the fair market value of the
Agency Property at its highest and best use in accordance with the Redevelopment Plan for the
Project Area.
P6402 \0001\866065. I
Section 5. The Agency hereby approves the conveyance of the Property to the
Purchaser and hereby authorizes its Executive Director to execute and deliver the Agreement in
substantially the form presented to the Agency at this meeting and now on file with the City
Clerk, together with all other documents and agreements pertaining to the Agreement, with such
changes therein as may be necessary and as the Executive Director may approve, in his
discretion, as being in the best interests of the Agency, such approval to be conclusively
evidenced by the execution and delivery thereof.
PASSED, APPROVED and ADOPTED this 9th day of February, 2006.
ATTEST:
Secretary
P6402\0001 \866065.1
PALM DESERT REDEVELOPMENT AGENCY
By:
Name:
Title:
2
RESOLUTION NO.06-13
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT
APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT WITH
COACHELLA VALLEY WATER DISTRICT
THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS,
DETERMINES, RESOLVES AND ORDERS AS FOLLOWS:
Section 1. In order to effectuate the provisions of the Redevelopment Plan (the
"Redevelopment Plan") for Project Area No. 3 (the "Project Area"), the Palm Desert Redevelopment
Agency (the "Agency") proposes to enter into a Disposition and Development Agreement (the
"Agreement") with Coachella Valley Water District (the "Purchaser"), pursuant to which Agreement
the Agency will convey to the Purchaser title to that certain real property described in Exhibit C to
the Agreement (the "Agency Property") and located in the City of Palm Desert, California (the
"City"), in exchange for the conveyance by the Purchaser to the Agency of title to that certain real
property described in Exhibit A to the Agreement (the "Purchaser Property"), the granting of an
option to the Agency to acquire that certain real property described in Exhibit B to the Agreement
(the "Option Parcel"), and other consideration, all on the terms and conditions set forth in the
Agreement.
Section 2. On February 9, 2006, the City Council and the Agency Board held a duly
noticed public hearing on the approval of the Agency's proposed conveyance of the Agency Property
to the Purchaser pursuant to the Agreement, at which time all persons desiring to comment on, or ask
questions concerning, the Agreement were given the opportunity to do so. Prior to the public
hearing, information concerning the Agency's proposed conveyance of the Agency Property to the
Purchaser was available for public inspection in office of the City Clerk in accordance with Health
and Safety Code Section 33433.
Section 3. The Agency has obtained an evaluation of the value of the Agency
Property from R.F. Sweet & Associates (Palm Desert, CA), which has determined that the fair
market value of the Agency Property, at the highest and best use in accordance with the
Redevelopment Plan for the Project Area, is equal to the fair market value of the Purchaser Property
and the other consideration for which the Agency Property will be exchanged.
Section 4. Based upon the foregoing and other information presented to the City
Council, the City Council hereby finds and determines that (i) the conveyance of the Agency
Property to the Purchaser is consistent with the Agency's implementation plan adopted pursuant to
Health and Safety Code Section 33490; (ii) the conveyance of the Agency Property to the Purchaser
pursuant to the Agreement will assist in the elimination of one or more blighting conditions inside
the Project Area, and (iii) the consideration for the Agency Property is not less than the fair market
value of the Agency Property at its highest and best use in accordance with the Redevelopment Plan
for the Project Area.
P6402\0001 \866031.1
Section 5. The City Council hereby approves the conveyance of the Property to
the Purchaser.
PASSED, APPROVED and ADOPTED this 9th day of February, 2006.
ATTEST:
City Clerk
P6402\0001 \866031.1
CITY COUNCIL OF THE CITY OF PALM
DESERT
By:
Name:
Mayor
2
REASCO I REAL ESTATE ANALYSIS SERVICES CO.
POST OFFICE BOX 2809, PALM DESERT, CALIFORNIA 92261
TEL: (760) 340-1429; FAX: (760) 340-2041
EMAIL: LRWREASCO aU� 4OL.COM
October 3, 2005
Mr. Stephen Aryan
Assistant To The City Manager
CITY OF PALM DESERT
73-510 Fred Waring Drive
Palm Desert, California 92260
Copies to: Justin McCarthy
David Yrigoyen
REFERENCE: Proposed Conveyance of Agency Property to Coachella Valley
Water District
SUBJECT: Report Pursuant To Section 33433 Of The California
Health And Safety Code
NOTE 1: This report is based on the terms and conditions of the Disposition and
Development Agreement Dated February 9, 2006, between the Palm Desert
Redevelopment Agency ("Agency") and Coachella Valley Water District.
Dear Mr. Aryan,
Section 33433 of the California Health and Safety Code stipulates that before any property
of a redevelopment agency, acquired directly or indirectly with tax increment funds, is sold or
leased (or otherwise conveyed) for development purposes pursuant to the Redevelopment
Plan, the conveyance shall first be approved by the legislative body by resolution after public
hearing.
The property the Agency proposes to convey to Coachella Valley Water District falls into
the category covered by Section 33433.
MY 33433 REPORTS/"33433 FOR CVWD (2)"
23-Jan-06 05:20 PM
REAL ESTATE ANALYSIS SERVICES COMPANY
- PAGE 2 -
October 3, 2005
LETTER TO: Mr. Stephen Aryan
SUBJECT: Report Pursuant To Section 33433 Of The California
Health And Safety Code
We have prepared a comprehensive report, beginning on page three of this letter, which is
required in order to comply with Section 33433. Pursuant to the report, we have concluded
that the following findings can be included in the resolution approving the exchange:
FINDING #1: The property is currently completely unimproved, and the conveyance
of the property will assist in the elimination of blight in the Project Area.
FINDING #2: Conveyance of the property is consistent with the implementation
plan adopted pursuant to Section 33490 of the California Health and Safety Code.
FINDING #3: The consideration is not less that the Fair Market Value, at its highest
and best use in accordance with the Redevelopment Plan.
The rationale for these findings can be found in the report.
Sincerely,
Leana.r LR. Wolk/
Leonard R. Wolk, President
Real Estate Analysis Services Company (REASCO)
MY 33433 REPORTS/"33433 FOR CVWD (2)"
23-Jan-06 05:20 PM
REAL ESTATE ANALYSIS SERVICES COMPANY
- PAGE 3-
Following are the detailed Sections of the retort:
SECTION 1 - A summary of the major business points of the proposed Disposition and
Development Agreement ("Agreement") between the Palm Desert Redevelopment Agency
("Agency") and Coachella Valley Water District ("District") concerning the proposed
acquisition by the District of certain real property owned by the Agency:
Reference is made to the Agreement for full particulars of any provision described
herein. In the event of any inconsistency between the provisions herein and the
Agreement, the Agreement shall control.
A. District Property:
1. The District owns fee title to certain unimproved real property ("District Property")
in the City of Palm Desert (the "City"). The District Property is legally described in
Exhibit A of the Agreement and is comprised of approximately 1.88 gross acres.
A recent appraisal found the market value of the District Property to be $544,000.
B. Option Parcel:
1. The District also owns fee title to certain unimproved real property ("Option Parcel")
in the City. The Option Parcel is legally described in Exhibit B of the Agreement
and is comprised of approximately 10.33 gross acres.
C. Aaencv Property:
1. The Agency owns fee title to certain unimproved real property ("Agency Property")
in the City. The Agency Property is legally described in Exhibit C of the Agreement
and is comprised of approximately 5.84 gross acres.
A recent appraisal found the market value of the Agency Property to be $2,670,000.
D. Desire of the Parties:
The Parties desire that District acquire the Agency Property in exchange for the District
Property and Agency's right to to acquire the Option Parcel for the consideration and on
the terms and conditions set forth in the Agreement.
MY 33433 REPORTS/"33433 FOR CVWD (2)" 23-Jan-06 05:20 PM
REAL ESTATE ANALYSIS SERVICES COMPANY
-PAGE4-
SECTION 1 - A summary of the major business points of the proposed
Agreement (continued):
E. Conveyance of the Agency Property:
1. Subject to the terms and conditions of the Agreement, Agency proposes to convey
the Agency Property to the District.
2. As consideration for the Agency Property, the District shall convey the District
Property to the Agency, excute the Option Agreement and pay $2,670,000.00
to the Agency ("District Payment").
F. Conveyance of the District Property:
1. Subject to the terms and conditions of the Agreement, District shall convey the
District Property to the Agency.
2. As consideration for the District Property, the Agency shall convey the Agency
Property to the District and pay $544,000.00 to the District ("Agency Payment").
Prior to the close of escrow for the transaction, the parties shall execute an Option
Agreement and a Memorandum of Option.
Further details about the Option Agreement may be found in Exhibit D of the
Agreement.
SECTION 2 - Cost of the Agreement to the Agency:
Agency will receive market value ($2.6 million) for the Agency property, so Agency's cos
for this portion of the transaction is zero. Agency will pay market value ($544,000) for the
District Property, so Agency's cost for this portion of the transaction is $544,000.
The final portion of the transaction is Agency's right to acquire the Option Parcel, for
which the cost is indeterminate at this time.
MY 33433 REPORTS!"33433 FOR CVWD (2)" 23-Jan-06 05:20 PM
REAL ESTATE ANALYSIS SERVICES COMPANY
-PAGE5-
SECTION 3 - The estimated value of the interest to be conveyed (the Agency Property)
determined at the highest and best uses permitted under the Redevelopment Plan.
A. Highest and best use for the interest to be conveyed:
1. The Agency Property is currently zoned "Service Industrial". Therefore any permitted
uses that would be compatible with the surrounding Cook Street Business Park usage,
such as professional office and medical suites would be highest and best use.
B. Estimated fair market value at the highest and best use of the interest
to be conveyed:
1. Pursuant to the recent appraisal, the estimated fair market value at the highest and best
use is $2.670,000.
Section 4 - The estimated value of the interest to be conveyed (the Agency Property)
determined at the use and with the conditions, covenents and development costs
required by the Agreement (the "reuse "value):
1. The only use stipulated in the Agreement is as an extension of the District's current
facility. Therefore, the reuse value is the same as the fair market value at the highest an,
best use, or $2.670.000.
Section 5 - Findings to be included in the resolution approving the transaction:
FINDING #1: The Agency Property is currently unimproved, and the conveyance
will assist in the elimination of blight in the Project Area.
FINDING #2: The conveyance is consistent with the implementation plan adopted
pursuant to Section 33490 of the California Health and Safety Code.
FINDING #3: The consideration is not less than the fair market value at its highest
and best use in accordance with the Redevelopment Plan.
MY 33433 REPORTS/"33433 FOR CVWD (2)"
23-Jan-06 05:20 PM
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement")
is entered into as of , 200_ ("Effective Date") by and between PALM DESERT
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and
COACHELLA VALLEY WATER DISTRICT, a public agency of the State of California
("District"). Agency and District are sometimes referred to individually as a "Party" and
collectively as "Parties."
RECITALS:
A. District is the owner of that certain real property located in the County of
Riverside, State of California, more particularly described and/or depicted on Exhibit "A" attached
hereto and incorporated herein by this reference ("District Property").
A. District is the owner of that certain real property located in the County of
Riverside, State of California, more particularly described and/or depicted on Exhibit "B"
attached hereto and by this reference incorporated herein ("Option Parcel").
B. Agency is the owner of that certain real property located in the County of
Riverside, State of California, more particularly described on Exhibit "C" attached hereto and by
this reference incorporated herein ("Agency Property").
C. The Parties desire that District acquire the Agency Property in exchange for the
District Property and the right to acquire the Option Parcel for the consideration and on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES CONTAINED
HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. DESCRIPTION OF THE EXCHANGE
(a) The Agency agrees to exchange and convey to District and District agrees
to take in exchange from the Agency, subject to the terms and conditions set forth herein, all of the
Agency's right, title and interest in and to the Agency Property, including all rights, privileges and
easements, all development rights and government approvals, and rights and appurtenances
pertaining to or used in connection with the beneficial use and enjoyment of the Agency Property
and any improvements, including all rights, title and interests of the Agency in and to adjacent or
abutting streets, alleys, watercourses, water bodies, easements and rights -of -way, to the extent such
rights, privileges and easements are held by or inure to the benefit of the Agency in its capacity as
owner of the Agency Property.
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R&s redline 12/6/05
(b) The District agrees to exchange and convey to the Agency and the Agency
agrees to take in exchange from District, subject to the terms and conditions set forth herein, the
following:
(i) All of the District's right, title and interest in and to the District
Property, including all rights, privileges and easements, all development rights and government
approvals, and rights and appurtenances pertaining to or used in connection with the beneficial use
and enjoyment of the District Property and any improvements, including all rights, title and
interests of the District in and to adjacent or abutting streets, alleys, water courses, water bodies,
easements and rights -of -way, to the extent such rights, privileges and easements are held by or
inure to the benefit of the District in its capacity as owner of District Property.
(ii) The right to acquire the Option Parcel pursuant to that certain
option agreement ("Option Agreement") by and between Agency and District in the form
attached hereto as Exhibit "D" and by this reference incorporated herein.
2. CONSIDERATION
(a) As consideration for the Agency Property, District shall convey, the District
Property to Agency, execute the Option Agreement and pay the Agency Two Million Six Hundred
Seventy Thousand Dollars ($2,670,000.00) ("District Payment"). The District Payment shall be
paid to Agency through escrow with Chicago Title Insurance Company Escrow Division ("Escrow
Agent") located at 72980 Fred Waring Drive, Suite B, Palm Desert CA 92260 in readily available
funds at the Closing (as defined herein).
(b) As consideration for the District Property, Agency shall convey the
Agency Property to District and pay to District Five Hundred Forty -Four Thousand Dollars
($544,000.00) ("Agency Payment"). The Agency Payment shall be paid to District through
escrow with Escrow Agent by deduction of the Agency Payment from the District Payment.
3. TITLE
(a) (i) Immediately following the Effective Date, the Parties shall order is
a preliminary report ("District PTR") pertaining to the Agency Property prepared by Chicago
Title Insurance Company ("Title Company"), together with complete and legible copies of all
documents referred to as exceptions identified in Schedule B thereof.
(ii) Within ten (10) business days after the Effective Date, District shall.
notify Agency in writing of any title exceptions within the District PTR which District disapproves.
Any exception not disapproved in writing within said ten (10) business day period shall be deemed
approved by District, and shall constitute a "Permitted Exception" hereunder. Notwithstanding the
foregoing, exceptions that evidence the obligation to pay money ("Monetary Exceptions") shall be
automatically disapproved. As to those items disapproved by District, Agency shall have no
obligation to remove and/or cure the same. Notwithstanding the foregoing, the Agency agrees to
remove all Monetary Exceptions at or prior to Closing. Agency shall notify District in writing of
any disapproved title exceptions which Agency is unwilling to cause to be removed or insured
against prior to Closing, and District shall then, within five (5) business days thereafter, elect, by
giving written notice to Agency and Escrow Agent, (A) to terminate this Agreement, or (B) to
2
waive its disapproval of such exceptions, in which case such exceptions shall then be deemed to be
Permitted Exceptions. District's failure to give such notice shall be deemed an election to waive the
disapproval of any such exception. In the event District elects to terminate this Agreement both
Parties shall be relieved from any liabilities and/or obligations under this Agreement, other than
those which are intended to survive such termination by the express terms hereof. Upon such
termination, each Party shall promptly take any and all actions necessary to cancel escrow and
return any documents provided to it by the other Party.
(b) (i) Immediately following the Effective Date, the Parties shall order a
preliminary report ("Agency PTR") pertaining to the District Property from Title Company,
together with complete and legible copies of all documents referred to as exceptions identified in
Schedule B thereof.
(ii) Within ten (10) business days after the Effective Date, Agency shall
notify District in writing of any title exceptions within the Agency PTR which Agency
disapproves. Any exception not disapproved in writing within said ten (10) business day period
shall be deemed approved by Agency, and shall constitute a Permitted Exception hereunder.
Notwithstanding the foregoing, Monetary Exceptions shall be automatically disapproved. As to
those items disapproved by Agency, District shall have no obligation to remove and/or cure the
same. Notwithstanding the foregoing, the District agrees to remove all Monetary Exceptions at or
prior to Closing. District shall notify Agency in writing of any disapproved title exceptions which
District is unwilling to cause to be removed or insured against prior to Closing, and Agency shall
then, within five (5) business days thereafter, elect, by giving written notice to District and Escrow
Agent, (A) to terminate this Agreement, or (B) to waive its disapproval of such exceptions, in
which case such exceptions shall then be deemed to be Permitted Exceptions. Agency's failure to
give such notice shall be deemed an election to waive the disapproval of any such exception. In
the event Agency elects to terminate this Agreement both Parties shall be relieved from any
liabilities and/or obligations under this Agreement, other than those which are intended to survive
such termination by the express terms hereof. Upon such termination, each Party shall promptly
take any and all actions necessary to cancel escrow and return any documents provided to it by the
other Party.
(c) The notice and refusal procedure of this Section 3 shall be repeated for any
title exception of which either Party is notified by the Title Company after the Effective Date,
except that if the time period for delivery of any notice extends beyond the Closing Date, then the
Closing shall be extended for whatever period of time is necessary to accommodate such notice
period(s). Notwithstanding any other provision of this Agreement, the Parties shall not record or
authorize for recording any lien or encumbrance against its respective properties described herein,
which would extend beyond the Closing Date without the prior written approval of the other Party.
4. DUE DILIGENCE CONTINGENCY
(a) (i) Within ten (10) business days after the Effective Date, the District
shall provide to the Agency, copies of any and all information regarding the District Property
P6402\1840647.4 3
R&s redline 12/6/05
either in the District's possession or under the District's control, including but not limited to, soils
reports, environmental or hazardous waste studies, engineering studies or any other studies or
reports relating to the physical condition of the District Property or any agreements relating to the
physical condition or use and development of the District Property, if any.
(ii) Agency and Agency's representatives, agents and designees will
have the right, at times during normal business hours, during the Due Diligence Period (as
defined below) and upon two (2) business day advance written notice to District, (which notice
must describe the scope of the planned testing and investigation) to enter upon the District
Property, in connection with its proposed purchase of the District Property. Agency also agrees
that:
(A) All tests will be at Agency's sole cost and expense;
(B) The persons or entities performing such tests will be
properly licensed and qualified and will have obtained all appropriate permits for performing such
tests;
(C) District will have the right of approval (which will not be
unreasonably withheld or delayed) of any proposed physical testing or drilling;
(D) Agency will advise District in advance of the dates of all
tests; and
(E) District will have -the right to have a representative of
District accompany Agency and Agency's representatives, agents or designees while they are on
the District Property;
(F) Agency will restore the District Property at Agency's sole
cost and expense if this transaction does not close. Until restoration is complete, Agency will take
all steps necessary to ensure that any conditions on the District Property created by Agency's
testing will not interfere with the normal operation of the District Property or create any
dangerous, unhealthy, unsightly or noisy conditions on the District Property.
Agency shall protect, indemnify, defend and hold the District Property, District and District's
directors, officers, officials, employees, agents, representatives, successors and assigns free and
harmless from and against any and all claims, damages, liens, stop notices, liabilities, losses, costs
and expenses, including reasonable attorneys' fees and court costs ("Costs"), resulting from
Agency's inspection and testing of the District Property, including, without limitation, repairing
any and all damages to any portion of the District Property, arising out of or related (directly or
indirectly) to Agency's conducting such inspections, surveys, tests, and studies. Agency shall keep
the District Property free of any mechanics' liens or materialmen's liens related to Agency's right
of inspection activities. The foregoing obligations shall not be merged with the deed, and shall
survive the Close of Escrow and shall survive the termination of this Agreement and Escrow prior
to the Close of Escrow.
P6402\0001 \ 840647.4
4
(b) (i) Within ten (10) business days after the Effective Date, the Agency
shall provide to the District, copies of any and all information regarding the Agency Property either
in the Agency's possession or under the Agency's control, including but not limited to, soils reports,
environmental or hazardous waste studies, engineering studies or any other studies or reports
relating to the physical condition of the Agency Property or any agreements relating to the physical
condition or use and development of the Agency Property, if any.
(ii) District and District's representatives, agents and designees will have
the right, at times during normal business hours, during the Due Diligence Period and upon two (2)
business day advance written notice to Agency, (which notice must describe the scope of the
planned testing and investigation) to enter upon the Agency Property, in connection with its
proposed purchase of the Agency Property. Agency also agrees that:
(A) All tests will be at District's sole cost and expense;
(B) The persons or entities performing such tests will be properly
licensed and qualified and will have obtained all appropriate permits for performing such tests;
(C) Agency will have the right of approval (which will not be
unreasonably withheld or delayed) of any proposed physical testing or drilling;
(D) District will advise Agency in advance of the dates of all
tests;
(E) Agency will have the right to have a representative of Agency
accompany District and District's representatives, agents or designees while they are on the Agency
Property; and
(F) District will restore the Agency Property at District's sole cost
and expense if this transaction does not close. Until restoration is complete, District will take all
steps necessary to ensure that any conditions on the Agency Property created by District's testing
will not interfere with the normal operation of the Agency Property or create any dangerous,
unhealthy, unsightly or noisy conditions on the Agency Property.
District shall protect, indemnify, defend and hold the Agency Property, Agency and Agency's
directors, officers, officials, employees, agents, representatives, successors and assigns free and
harmless from and against any and all Costs resulting from District's inspection and testing of the
Agency Property, including, without limitation, repairing any and all damages to any portion of the
Agency Property, arising out of or related (directly or indirectly) to District's conducting such
inspections, surveys, tests, and studies. District shall keep the Agency Property free of any
mechanics' liens or materialmen's liens related to District's right of inspection activities. The
foregoing obligations shall not be merged with the deed, and shall survive the Close of Escrow and
shall survive the termination of this Agreement and Escrow prior to the Close of Escrow.
(c) The Parties shall have thirty (30) days from the Effective Date ("Due
Diligence Period") within which to determine to each Party's satisfaction, in the Party's sole
P6402\ 0001 \ 840647.4
5
and absolute discretion, with the "Due Diligence Contingencies" set forth in (a) or (b) above, as
the case may be. If either Party is not satisfied within the Due Diligence Period, such Party may
terminate this Agreement by delivering written notice of such termination to the other Party on or
before the expiration of the Due Diligence Period, in which case all of the Parties' rights and
obligations hereunder (other than those which are intended to survive such termination by the
express terms hereof) shall terminate as well. Upon such termination, each Party shall promptly
take any and all actions necessary to cancel Escrow and to return any documents provided to it by
the other Party. If a Party does not provide written notice of termination of this Agreement within
the Due Diligence Period, the Due Diligence Contingency shall be deemed to have been satisfied
and waived, and this Agreement shall continue in full force and effect. The waiver or satisfaction
of the due diligence contingency shall constitute such Party's determination that it is satisfied with
its investigation of the condition of the other Party's property and all material facts bearing on its
purchase of such property.
5. REPRESENTATIONS
(a) Agency makes the following representations to District, all of which shall be
true as of the date hereof and as of the Close of Escrow and which shall survive the Close of
Escrow and delivery of the Agency Deed (as defined herein):
(i) Agency is a public body, corporate and politic established and
existing pursuant to California Health and Safety Code Sections 33000, et seq.
(ii) Agency has the full legal power, right and authority to: (A) enter
into and sign this Agreement and the instruments and documents referenced herein; (B)
consummate the transactions contemplated herein; (C) take any steps or actions contemplated
hereby; and (D) perform its obligations hereunder.
(iii) Agency is the owner in fee simple of the Agency Property.
(iv) All requisite action has been taken by Agency and all requisite
consents have been obtained in connection with entering into this Agreement and the instnunents
and documents referenced herein to which Agency is a party, and the consummation of the
transaction contemplated hereby and, to the best knowledge of Agency, comply with all applicable
laws, statutes, ordinances, rules and governmental regulations. There are no writs, injunctions,
order or decrees of any court or governmental body which would be violated by Agencys entering
into or performing its obligations under this Agreement.
(v) This Agreement is, and all agreements, instruments and documents
to be executed by Agency pursuant to this Agreement shall, at such time as they are required to be
executed hereunder, be duly executed by Agency, and each such agreement is, or shall be at such
time as it is required to be executed hereunder, valid and legally binding upon Agency and
enforceable in accordance with its terms, and the execution and delivery thereof shall not, with due
notice or the passage of time, constitute a default under or violate the terms of any indenture,
agreement or other instrument to which Agency is a party.
P6402\ 0001 \ 840647.4
6
(vi) At the Closing, and except as otherwise expressly set forth herein,
there will be no agreements (whether oral or written), affecting or relating to the right of any party
regarding possession of the Agency Property, or any portion thereof, which are obligations which
will affect the Agency Property or any portion thereof subsequent to the recordation of the Agency
Deed except for the Permitted Exceptions.
(vii) Agency understands, agrees and acknowledges that it is purchasing
the District Property in "as-is/where-is" condition. District has not made and will not make, either
expressly or implied, any representations or warranties concerning the physical or environmental
condition of the District Property, or its fitness for any particular use or purpose. Agency
represents and warrants that prior to the Close of Escrow, Agency will have had the opportunity to
make and will have made such an investigation and inspection of all aspects of the condition of the
District Property as it has deemed necessary or appropriate, including, but not limited to soils and
the District Property's compliance or non-compliance with applicable laws, rules, regulations and
ordinances (including Environmental Laws as hereinafter defined) and the existence or non-
existence of Hazardous Substances (as hereinafter defined) on, in or under the District Property.
Agency further represents and warrants that in purchasing the District Property, Agency is relying
solely upon its own inspections and investigations in proceeding with this Agreement. For
purposes of this Agreement the term "Environmental Laws" shall mean all federal, state and local
laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any
government authority regulating, relating to, or imposing liability or standards of conduct
concerning any Hazardous Substance, or pertaining to occupational health or industrial hygiene
(and only to the extent that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the District Property), as now or
may at any later time be in effect, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA) [42 USCS §§ 9601 et seq.]; the
Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS §§6901 et seq.]; the Clean
Water Act [42 USCS §§7401 et seq.]; the Safe Drinking Water Act, also known as the Federal
Water Pollution Control Act (FWPCA) [33 USCS §§1251 et seq.]; the Toxic Substances Control
Act (TSCA) [15 USCS §§2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49
USCS §§1801 et seq.]; the Insecticide, Fungicide, Rodenticide Act [7 USCS §§136 et seq.]; the
Superfund Amendments and Reauthorization Act [41 USCS §§6901 et seq.]; the Clean Air Act [42
USCS §§ 7401 et seq.]; the Safe Drinking Water Act [42 USCS §§ 300f et seq.;] the Solid Waste
Disposal Act [42 USCS §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30
USCS §§ 1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USCS §§
11001 et seq.]; the Occupational Safety and Health Act [29 USCS §§ 655 and 657]; the California
Underground Storage of Hazardous Substances Act [H&S C §§ 25280 et seq.]; the California
Hazardous Substances Account Act [H&S C §§25300 et seq.]; the California Hazardous Waste
Control Act [H&S C §§25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement
Act [H&S C §§ 24249.5 et seq.]; the Porter -Cologne Water Quality Act (Wat C §§ 13000 et seq.]
together with any amendments of or regulations promulgated under the statutes cited above and
any other federal, state or local law, statute, ordinance, or regulation now in effect or later enacted
that pertains to occupational health or industrial hygiene (and only to the extent that the
occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous
Substances on, under, or about the District Property), or the regulation or protection of the
environment,
P6402\0001 \ 840647.4
7
including ambient air, soil, soil vapor, groundwater, surface water, or land use. For purposes of
this Agreement, the term "Hazardous Substances" shall include, without limitation, petroleum or
refined petroleum products, flammable explosives, radioactive materials, asbestos, polychlorinated
biphenyls, chemicals known to cause cancer or reproductive toxicity, substances described in Civil
Code Section 2929.5(eX2), as it now exists or as subsequently amended, those substances included
within the definitions of hazardous substance, hazardous waste, hazardous material, toxic
substance, solid waste or pollutant or contaminant in CERCLA, RCRA, TSCA, HMTA or under
any other Environmental Law, pollutants, contaminants, hazardous wastes, toxic substances or
related materials.
(viii) Without limiting the generality of the foregoing provisions, Agency
acknowledges that District has not made and will not make any representations or warranties
concerning the District Property's compliance or non-compliance with Environmental Law or the
existence or non-existence of Hazardous Substances in relation to the District Property or
otherwise.
(ix) The development of the Agency Property by District is in
accordance with the Agency's Redevelopment Plan for Project Area No. 3.
(b) District makes the following representations to Agency, all of which shall be
true as of the date hereof and as of the Close of Escrow and which shall survive the Close of
Escrow and delivery of the District Deed (as defined herein):
(i) District is a county water district established and existing pursuant
to California Water Code §§ 34000 et seq.
(ii) District has the full legal power, right and authority to: (A) enter
into and sign this Agreement and the instruments and documents referenced herein; (B)
consummate the transactions contemplated herein; (C) take any steps or actions contemplated
hereby; and (D) perform its obligations hereunder.
(iii) District is the owner in fee simple of the District Property.
(iv) All requisite action has been taken by District and all requisite
consents have been obtained in connection with entering into this Agreement and the instruments
and documents referenced herein to which District is a party, and the consummation of the
transaction contemplated hereby and, to the best knowledge of District, comply with all applicable
laws, statutes, ordinances, rules and governmental regulations. There are no writs, injunctions,
order or decrees of any court or governmental body which would be violated by District's entering
into or performing its obligations under this Agreement.
(v) This Agreement is, and all agreements, instruments and documents
to be executed by District pursuant to this Agreement shall, at such time as they are required to be
executed hereunder, be duly executed by District, and each such agreement is, or shall be at such
time as it is required to be executed hereunder, valid and legally binding upon District and
enforceable in accordance with its terms, and the execution and delivery thereof shall not, with
P6402\0001\840647.4
8
due notice or the passage of time, constitute a default under or violate the terms of any indenture,
agreement or other instrument to which District is a party.
(vi) At the Closing, there will be no agreements (whether oral or
written), affecting or relating to the right of any party regarding possession of the District
Property, or any portion thereof, which are obligations which will affect the District Property or
any portion thereof subsequent to the recordation of the District Deed except for the Permitted
Exceptions.
(vii) District understands, agrees and acknowledges that it is purchasing
the Agency Property in "as-is/where-is" condition. Agency has not made and will not make, either
expressly or implied, any representations or warranties concerning the physical or environmental
condition of the Agency Property, or its fitness for any particular use or purpose. District
represents and warrants that prior to the Close of Escrow, District will have had the opportunity to
make and will have made such an investigation and inspection of all aspects of the condition of the
Agency Property as it has deemed necessary or appropriate, including, but not limited to soils and
the Agency Property's compliance or non-compliance with applicable laws, rules, regulations and
ordinances (including the Environmental Laws) and the existence or non-existence of Hazardous
Materials on, in or under the Agency Property. District further represents and warrants that in
purchasing the Agency Property, District is relying solely upon its own inspections and
investigations in proceeding with this Agreement.
(viii) Without limiting the generality of the foregoing provisions, District
acknowledges that Agency has not made and will not make any representations or warranties
concerning the Agency Property's compliance or non-compliance with Environmental Law or the
existence or non-existence of Hazardous Materials in relation to the Agency Property or otherwise.
(ix) District agrees that it will develop the Agency Property in
accordance with the Agency's Redevelopment Plan for Project Area No. 3, and consistent with the
City of Palm Desert's permissible uses and applicable zoning for the Agency Property, and all
other land use restrictions and regulations of any governmental agency having jurisdiction over the
Agency Property. The District further agrees that the development of the Agency Property will
consist of the construction of improvements which are determined by the District to be necessary or
prudent for buildings, parking lot(s), a demonstration garden and appurtenances thereto and that it
will commence such development on or before March 1, 2007.
6. CONDITIONS
(a) In addition to the conditions provided in other provisions of this
Agreement, the following shall be conditions precedent to District's obligation to consummate
the transaction contemplated herein:
(i) District shall not have terminated this Agreement in accordance
with the terms of this Agreement.
P6402\0001\840647.4
9
(ii) Title Company shall stand ready to issue, at the Closing, a CLTA
Standard Owners Policy of Title Insurance ("District Title Policy") for the Agency Property
together with endorsements reasonably requested by District, with liability equal to the District
Payment, subject only to (A) the Permitted Exceptions; (B) the standard printed exceptions and
condition in the District Title Policy; and (C) the general and special taxes and assessments not
then delinquent and a lien, if any, for current real property taxes for the fiscal year in effect at the
time of the Closing. District, if it so desires, may obtain an ALTA Extended Coverage Policy of
Title Insurance, provided, District pays the difference in cost between the CLTA Standard Form
Policy and the ALTA Extended Coverage Policy of Title Insurance and the issuance of the ALTA
Extended Coverage Policy of Title Insurance does not extend the Close of Escrow.
(iii) Agency shall have delivered to the Escrow Agent the items
described in Section 7.
(iv) The representations and warranties of the Agency stated in this
Agreement shall be true and correct on and as of the Closing Date with the same force and effect
as if such representations and warranties had been made on and as of the Closing Date.
(v) The Agency shall have performed, observed and complied with all
of the covenants, agreements, obligations and conditions required by this Agreement to be
performed, observed and complied with by it by the Closing Date.
(vi) There shall have been no material adverse change in the condition
of the Agency Property between the expiration date of the Due Diligence Period and the Closing
Date, normal wear and tear excepted.
The conditions set forth in this Section are solely for the benefit of District and may
be waived only by District. District shall, at all times prior to the termination of this Agreement,
have the right to waive any of these conditions; provided that such waiver is in writing. In the
event that the conditions are not satisfied or waived by the District, in writing, on or before the
Closing both Parties shall be released from any liabilities or obligations under this Agreement,
other than those which are intended to survive such termination by the express terms hereof Upon
such termination, each Party shall promptly take any and all actions necessary to cancel escrow
and return any documents provided to it by the other Party.
(b) In addition to the conditions provided in other provisions of this
Agreement, the following shall be conditions precedent to Agency's obligation to consummate
the purchase and sale transaction contemplated herein:
(i) Agency shall not have terminated this Agreement in accordance
with the terms of this Agreement.
(ii) Title Company shall stand ready to issue, at the Closing, a CLTA
Standard Owners Policy of Title Insurance ("Agency Title Policy") for the District Property
together with endorsements reasonably requested by Agency, with liability equal to the Agency
Payment, subject only to (A) the Permitted Exceptions; (B) the standard printed exceptions and
condition in the Agency Title Policy; and (C) the general and special taxes and assessments not
P6402\0001\840647.4
10
then delinquent and a lien, if any, for current real property taxes for the fiscal year in effect at the
time of the Closing. Agency, if it so desires, may obtain an ALTA Extended Coverage Policy of
Title Insurance, provided, Agency pays the difference in cost between the CLTA Standard Form
Policy and the ALTA Extended Coverage Policy of Title Insurance and the issuance of the ALTA
Extended Coverage Policy of Title Insurance does not extend the Close of Escrow.
(iii) District shall have delivered to the Escrow Agent the items
described in Section 8.
(iv) The representations and warranties of the District stated in this
Agreement shall be true and correct on and as of the Closing Date with the same force and effect
as if such representations and warranties had been made on and as of the Closing Date.
(v) The District shall have performed, observed and complied with all
of the covenants, agreements, obligations and conditions required by this Agreement to be
performed, observed and complied with by it by the Closing Date.
(vi) There shall have been no material adverse change in the condition
of the District Property between the expiration date of the Due Diligence Period and the Closing
Date, normal wear and tear excepted.
The conditions set forth in this Section are solely for the benefit of Agency and may
be waived only by Agency. Agency shall, at all times prior to the termination of this Agreement,
have the right to waive any of these conditions; provided that such waiver is in writing. In the
event that the conditions are not satisfied or waived by the Agency, in writing, on or before the
Closing both Parties shall be released from any liabilities or obligations under this Agreement,
other than those which are intended to survive such termination by the express terms hereof. Upon
such termination, each Party shall promptly take any and all actions necessary to cancel escrow
and return any documents provided to it by the other Party.
7. AGENCY'S CLOSING DELIVERIES
At least one (1) business day prior to the Closing, Agency shall deliver or cause to be
delivered to Escrow Agent the following:
(a) A deed in the form and content as set forth in Exhibit "E" attached hereto
and by this reference incorporated herein ("Agency Deed").
(b) An affidavit certifying that Agency is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Internal Revenue Code of 1986 ("Certificate of Non -
Foreign Status").
(c) A properly executed California form 590 or other evidence sufficient to
establish that Agency is not required to withhold any portion of the Purchase Price pursuant to
sections 18805 and 26131 of the California Revenue and Taxation Code.
P6402\0001\840647.4
11
(d) Two (2) copies of the Option Agreement executed by Agency.
(e) A memorandum of option executed by Agency and in the form and
content as set forth in Exhibit "G" attached hereto and by this reference incorporated herein
("Memorandum of Option").
(f) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction contemplated by this Agreement.
8. DISTRICT'S CLOSING DELIVERIES
At least one (1) business day prior to the Closing District shall deliver to Escrow
Agent:
(a) The District Payment, together with such other sums as Escrow Agent
shall require to pay District's share of the closing costs, prorations and adjustments set forth
herein, in immediately available funds.
(b) A deed in the form and content as set forth in Exhibit "F" attached hereto
and by this reference incorporated herein ("District Deed").
(c) Certificate of Non -Foreign Status.
(d) A properly executed California form 590 or other evidence sufficient to
establish that District is not required to withhold any portion of the Purchase Price pursuant to
sections 18805 and 26131 of the California Revenue and Taxation Code.
(e) Two (2) copies of the Option Agreement executed by District.
(f) A Memorandum of Option executed by the District.
(g) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction as contemplated by this Agreement.
9. TAXES
(a) At or prior to the Closing, the Agency shall pay, if not previously paid,
any real property taxes and assessment due to the Closing on the Agency Property.
(b) At or prior to the Closing, the District shall pay, if not previously paid,
any real property taxes and assessment due to the Closing on the District Property.
10. CLOSING
The transaction contemplated herein shall'occur (the "Closing," "Closing Date" or
"Close of Escrow") on a date to be agreed upon by the Parties, but in no event later than
P6402\0001\840647.4
12
, 2006, unless such date is extended pursuant to the express provisions of this
Agreement.
11. CLOSING COSTS
(a) Agency shall pay the cost of the premium for the District Title Policy
equal to the amount of a CLTA standard coverage owner's policy and fifty percent (50%) of all
other escrow and closing costs.
(b) District shall pay the premium for the Agency Title Policy equal to the
amount of a CLTA standard coverage owner's policy and fifty percent (50%) of all other escrow
and closing costs.
12. BROKER'S COMMISSION
District represents and warrants to Agency that it has not entered into any
agreement under which a brokerage commission, finder's fee or other compensation would be
due or payable with respect to the transaction contemplated hereby. Agency represents and
warrants to District that it has not entered into any agreement under which a brokerage
commission, finder's fee or other compensation would be due or payable with respect to the
transaction contemplated hereby. Each Party hereby agrees to indemnify, defend, and hold the
other harmless from Costs incurred by such Party by reason of any breach or inaccuracy of the
representations and warranties contained in this Section 12. The provisions of this Section 12
shall survive the Closing.
13. ESCROW
(a) Within two (2) days after their respective execution of this Agreement,
Agency and District each shall deposit a counterpart original of this Agreement executed by such
Party (or either of them shall deposit a counterpart executed by both Agency and District) with
Escrow Agent. This Agreement, together with such further instructions, if any, as the Parties shall
provide to Escrow Agent by written agreement, shall constitute the escrow instructions. If any
requirements relating to the duties or obligations of Escrow Agent hereunder are not acceptable to
Escrow Agent, or if Escrow Agent requires additional instructions, the Parties hereto agree to
make such deletions, substitutions and additions hereto as counsel for Agency and District shall
mutually approve, which additional instructions shall not substantially alter the terms of this
Agreement unless otherwise expressly provided therein.
(b) Agency shall make its deposits into escrow in accordance with Section 7.
District shall make its deposits into escrow in accordance with Section 8. Escrow Agent is hereby
authorized to close the escrow only if and when: (i) Escrow Agent has received all items to be
delivered by Agency and District pursuant to Sections 7 and 8; and (ii) Title Company can and will
issue the District Title Policy and Agency Title Policy concurrently with the Closing.
P6402\0001 \840647.4
13
(c) Provided that Escrow Agent shall not have received written notice in a
timely manner from Agency or District of the failure of any condition to the Closing or of the
termination of the escrow, and if and when Agency and District have deposited into the escrow the
matters required by this Agreement and Title Company can and will issue the District Title
Policy and Agency Title Policy concurrently with the Closing, Escrow Agent shall:
(i) Deliver to District: (A) the Agency Deed by causing it to be
recorded in the Official Records of the Office of the County Recorder of Riverside County,
California; and immediately upon recording, delivering to District a conformed copy of the
Agency Deed; (B) California form 590; (C) the Certificate of Non -Foreign Status; (D) the District
Title Policy issued by Title Company to District; (E) a copy of the Option Agreement; and (F) the
Memorandum of Option by causing it to be recorded in the Official Records of the Office of the
County Recorder of Riverside County, California; and immediately upon recording, delivering to
District a conformed copy of the Memorandum of Option.
(ii) Deliver to Agency: (A) the District Deed by causing it to be
recorded in the Official Records of the Office of the County Recorder of Riverside County,
California; and immediately upon recording, delivering to Agency a conformed copy of the
District Deed; (B) California form 590; (C) the Certificate of Non -Foreign Status; (D) the Agency
Title Policy issued by Title Company to Agency; (E) a copy of the Option Agreement; (F) District
Payment after deducting the amount of the Agency Payment; and (G) the Memorandum of Option
by causing it to be recorded in the Official Records of the Office of the County Recorder of
Riverside County, California; and immediately upon recording, delivering to Agency a conformed
copy of the Memorandum of Option.
(iii) Deliver to Parties: any funds deposited by Parties, and any interest
earned thereon, in excess of the amount required to be paid by Parties hereunder.
14. GENERAL PROVISIONS
(a) Each individual and entity executing this Agreement hereby represents
and warrants that he or she has the capacity set forth on the signature pages hereof with full
power and authority to bind the Party on whose behalf he or she is executing this Agreement to the
terms hereof.
(b) This Agreement is the entire agreement between the Parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and understandings,
whether oral or written, between the Parties with respect to the matters contained in this
Agreement. Any waiver, modification, consent or acquiescence with respect to any provision of
this Agreement shall be set forth in writing and duly executed by or in behalf of the Party to be
bound thereby. No waiver by any Party of any breach hereunder shall be deemed a waiver of any
other or subsequent breach.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall constitute one and the
same instrument. The signature page of any counterpart may be detached therefrom without
P6402\0001\840647.4
14
impairing the legal effect of the signature(s) thereon provided such signature page is attached to
any other counterpart identical thereto except having additional signature pages executed by other
Parties to this Agreement attached hereto.
(d) Time is of the essence in the performance of and compliance with each of
the provisions and conditions of this Agreement.
(e) Any communication, notice or demand of any kind whatsoever which
either Party may be required or may desire to give to or serve upon the other shall be in writing
and delivered by personal service (including express or courier service), by electronic
communication, whether by telex, telegram or telecopying (if confirmed in writing sent by
registered or certified mail, postage prepaid, return receipt requested), or by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
Agency:
District:
Escrow Agent:
Palm Desert Redevelopment Agency
73-510 Fred Waring Drive
Palm Desert, CA 92260
Telephone: 760-346-0611
Facsimile: 760-346-0571
Attention: Executive Director
Coachella Valley Water District
P.O. Box 1058
Avenue 52 and Highway 111
Coachella, CA 92236
Telephone: 760-398-2651
Facsimile: 760-398-3711
Attention: General Manager/Chief Engineer
Chicago Title Insurance Company
72980 Fred Waring Drive, Suite B
Palm Desert CA 92260
Telephone: 760-568-3627
Facsimile: 760-341-8296
Attention:
(0 The Parties agree to execute such instructions to Escrow Agent and such
other instruments and to do such further acts as may be reasonably necessary to carry out the
provisions of this Agreement.
(g) Wherever possible, each provision of this Agreement shall be interpreted
in such a manner as to be valid under applicable law, but, if any provision of this Agreement
shall be invalid or prohibited thereunder, such invalidity or prohibition shall be construed as if
such invalid or prohibited provision had not been inserted herein and shall not affect the
remainder of such provision or the remaining provisions of this Agreement.
P6402\0001\840647.4
15
(h) The language in all parts of this Agreement shall be in all cases construed
simply according to its fair meaning and not strictly for or against any of the Parties hereto.
Section headings of this Agreement are solely for convenience of reference and shall not govern
the interpretation of any of the provisions of this Agreement. References to "Sections" are to
Sections of this Agreement, unless otherwise specifically provided.
(i) This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
(j) If any action is brought by either Party against the other Party, the
prevailing Party shall be entitled to recover from the other Party reasonable attorneys' fees, costs
and expenses incurred in connection with the prosecution or defense of such action. For purposes
of this Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean the fees
and expenses of counsel to the Parties hereto, which may include printing, photostating,
duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the supervision of an attorney.
(k) Notwithstanding anything to the contrary contained herein, this
Agreement shall not be deemed or construed to make the Parties hereto partners or joint
venturers, or to render either Party liable for any of the debts or obligations of the other.
(1) This Agreement, or a memorandum thereof, shall not be recorded or filed in
the public land or other public records of any jurisdiction by either Party and any attempt to do so
may be treated by the other Party as a breach of this Agreement.
(m) Neither Party shall assign its rights nor delegate its obligations hereunder
without obtaining the other Party's prior written consent, which may be withheld in such Party's
sole discretion. In no event shall any assignment relieve a Party from its obligations under this
Agreement. Any other purported or attempted assignment or delegation without obtaining a
Party's prior written consent shall be void and of no effect.
(n) Subject to the restrictions on transfer set forth in subsection (m) hereof,
this Agreement shall be binding upon and inure to the benefits of the heirs, successors and
assigns of the Parties hereto.
P6402 \ 0001 \ 840647.4
16
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the date
first above written.
AGENCY:
PALM DESERT
REDEVELOPMENT AGENCY, a
public body, corporate and politic
By
Name
Its
ATTEST:
Secretary
COACHELLA VALLEY
WATER DISTRICT, a public
agency of the State of
California
By
Name
Its
17
EXHIBIT LIST
EXHIBIT "A" Description of District Property
EXHIBIT "B" Description of Option Parcel
EXHIBIT "C" Description of Agency Property
EXHIBIT "D" Option Agreement
EXHIBIT "E " Agency Deed
EXHIBIT "F" District Deed
EXHIBIT "G" Memorandum of Option
18
Exhibit A
LEGAL DESCRIPTION
Real property in the City of Palm Desert, County of Riverside, State of California, described as
follows:
THAT PORTION OF THE NORTH HALF OF THE SOUTHEAST QUARTER OF SECTION 29
TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY
OF RIVERSIDE, STATE OF CALIFORNIA, BY METES AND BOUNDS, BEGINNING AT THE
SOUTHEAST CORNER OF SAID NORTH HALF OF THE SOUTHEAST QUARTER; THENCE
NORTHERLY ON THE EASTERLY LINE OF SAID NORTH HALF OF THE SOUTHEAST QUARTER,
422.03 FEET; THENCE SOUTH 56° 55' 30" WEST, 773.22 FEET TO THE SOUTHERLY LINE OF
SAID NORTH HALF OF THE SOUTHEAST QUARTER; THENCE EASTERLY ON THE SOUTHERLY
LINE OF SAID NORTH HALF OF THE SOUTHEAST QUARTER, 654.87 FEET TO THE POINT OF
BEGINNING.
EXCEPT THEREFROM, THAT PORTION OF SAID LAND, AS DESCRIBED IN DEEDS RECORDED
APRIL 23, 1974 AS INSTRUMENT NO. 47245 AND SEPTEMBER 27, 1974 AS INSTRUMENT NO.
125117, BOTH OF OFFICIAL RECORDS.
APN: 630-200-019-1
Exhibit B
EXHIBIT A
RIGHT OF WAY
SECTION 15, T. 5 S., R. 6 E., S.B.M.
LEGAL DESCRIPTION
SHEET 1 OF 1 SHEETS
THAT PORTION OF THE EAST HALF OF THE WEST HALF OF SECTION 15, TOWNSHIP 5 SOUTH, RANGE 6
EAST, SAN BERNARDINO MERIDIAN, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF THE NORTHWEST QUARTER OF SAID SECTION 15; THENCE
ALONG THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION AS SHOWN ON TRACT MAP NO.
29663-1, AS FILED IN BOOK 349 OF MAPS, AT PAGES 46 THROUGH 70, INCLUSIVE, OFFICIAL RECORDS OF
RIVERSIDE COUNTY, CALIFORNIA, SOUTH 00°00'41" WEST, 1619.58 FEET TO THE NORTHERLY LINE OF THE
WHITEWATER STORM CHANNEL RIGHT OF WAY AS SHOWN ON TRACT MAP NO. 11969, AS FLED IN BOOK
113 OF MAPS, AT PAGES 95 THROUGH 101, INCLUSIVE, OFFICIAL RECORDS OF RIVERSIDE COUNTY,
CALIFORNIA; THENCE ALONG SAID NORTHERLY RIGHT OF WAY, NORTH 63°40'12" WEST, 136.25 FEET TO
THE BEGINNING OF A NON -TANGENT CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 944.00
FEET, A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 86°23'54" WEST; THENCE LEAVING SAID
NORTHERLY RIGHT OF WAY AND NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE
OF 3°36'47' AND AN ARC DISTANCE OF 59.53 FEET; THENCE PARALLEL TO AND 124.00 FEET WESTERLY OF
THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 15, NORTH 00°00'41" EAST, 1443.33 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF
3044.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 4°17'35'
AND AN ARC DISTANCE OF 228.08 FEET; THENCE NORTH 04°18'16" EAST, 176.07 FEET TO THE BEGINNING
OF A TANGENT CURVE CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 2956.00 FEET; THENCE
NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 4°17'30" AND AN ARC DISTANCE
OF 221.41 FEET; THENCE PARALLEL TO AND 94.00 FEET WEST OF THE EAST LINE OF NORTHWEST
QUARTER OF SAID SECTION 15, NORTH 00°00'46" EAST, 2014.85 FEET; THENCE NORTH 37°38'42' WEST,
33.74 FEET TO THE SOUTHERLY RIGHT OF WAY OF HOVLEY LANE (50 FOOT HALF WIDTH), SAID POINT
ALSO BEING THE BEGINNING OF A NON -TANGENT CURVE CONCAVE NORTHEASTERLY AND HAVING A
RADIUS OF 1250.00 FEET, A RADIAL UNE THROUGH SAID POINT BEARS SOUTH 05°02'36" WEST; THENCE
ALONG SAID SOUTHERLY RIGHT OF WAY AND EASTERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 5°15'36' AND AN ARC DISTANCE OF 114.76 FEET TO THE EAST LINE OF THE NORTHWEST
QUARTER OF SAID SECTION 15; THENCE ALONG SAID EAST UNE, SOUTH 00°00146a WEST, 2605.05 FEET
TO THE POINT OF BEGINNING.
SAID AREA CONTAINS 10.33 ACRES, MORE OR LESS.
SUBJECT TO ALL COVENANTS, RIGHTS, RIGHTS -OF -WAY AND EASEMENTS OF RECORD.
AS SHOWN ON EXHIBIT 'B" ATTACHED HERETO AND BY REFERENCE MADE A PART HEREOF.
THIS DOCUMENT WAS PREPARED BY
ME OR UNDER MY DIRECTION,
BASED ON RECORD INFORMATION.
PHILLIP K. FOMOTOR, P.L.S.
EXP. 12/31/06
W.'Wobs20041E1doradomAenaioMMAPPING RW RW-CVWD.Doc
Exhibit C
LEGAL DESCRIPTION
Real property in the City of Palm Desert, County of Riverside, State of Califomia, described as
follows:
PARCEL 4 AS SHOWN BY PARCEL MAP 13406 ON FILE IN BOOK 64, PAGES 66 THROUGH 68, OF
PARCEL MAPS, RECORDS OF RIVERSIDE COUNTY, CALIFORNIA.
APN: 632-030-003-5
EXHIBIT "D"
TO DISPOSITION AND DEVELOPMENT AGREEMENT
OPTION AGREEMENT
THIS OPTION AGREEMENT (this "Agreement") is entered into as of October
_ , 2005 ("Effective Date") by and between PALM DESERT REDEVELOPMENT
AGENCY, a public body, corporate and politic ("Agency') and COACHELLA VALLEY
WATER DISTRICT, a public agency of the State of California ("District"). Agency and
District are sometimes referred to individually as a "Party" and collectively as "Parties."
RECITALS:
A. District is the owner of that certain real property located in the County of
Riverside, State of California, more particularly described on Exhibit "A" attached hereto and
incorporated herein by this reference ("Property").
B. Agency desires to obtain the option to purchase the Property and District is
willing to grant such option to Agency on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES CONTAINED
HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. OPTION
(a) In consideration of the sale of certain real property by Agency to District
and the mutual promises and covenants contained in this Agreement, District hereby grants to
Agency an option ("Option") to acquire the Property. The Option shall commence on the
Effective Date and shall expire at midnight on November 30, 2015, unless extended or
terminated as provided herein ("Option Term").
(b) For so long as Agency is not in default hereunder, Agency may exercise
the Option to purchase the Property by giving District written notice ("Option Notice") of its
intent to exercise the Option at any time during the Option Term.
2. PURCHASE PRICE
(a) The purchase price ("Purchase Price") shall be the fair market value
("Fair Market Value") of the Property as of the date of the exercise of the Option.
P6402\22\840647.4
(b) Within ten (10) business days after the exercise of the Option ("Fair
Market Determination Period"), the Parties shall attempt to arrive at a mutually agreeable Fair
Market Value for the Property. If the Parties cannot determine the Fair Market Value of the
Property, the Parties shall have ten (10) business days after the expiration of the Fair Market
Determination Period ("Appraiser Determination Period") to agree upon an appraiser. The
appraiser selected shall be a commercial real estate appraiser licensed by the California Office of
Real Estate Appraiser, with his/her principal business office located in the county where the
Property is located, with at least five (5) years' commercial appraisal experience in such area and
qualified to appraise property similar to the Property. The appraisal shall be made in accordance
with the then standard practices, and the appraisal shall determine the Fair Market Value of the
Property based upon its highest and best use. Upon completion of the appraisal and determination
of the Fair Market Value of the Property, the appraiser shall notify the Parties.
(c) If within the Appraiser Determination Period, the Parties have not agreed
upon a single appraiser, the Agency shall, within ten (10) days after the Appraiser Determination
Period, appoint, in writing, one (1) appraiser meeting the qualifications set forth in subparagraph (b)
above and shall give written notice of such selection to District. District shall have the right to
appoint a second appraiser meeting the qualifications set forth in subparagraph (b) above, before
the expiration of ten (10) days following written notice from the Agency that its appraiser has been
appointed, or if Agency fails to appoint an appraiser within the ten (10) days after the Appraiser
Determination Period, for a period of ten (10) days thereafter. The notice from Agency appointing
its appraiser shall provide that District has ten (10) days thereafter to appoint an appraiser. In the
event that either Party does not select an appraiser within the time specified, the one (1) appraiser
duly appointed shall proceed to determine the Fair Market Value as herein set forth and the Fair
Market Value as determined by such appraiser shall be conclusive and binding on the Parties
hereto. The Agency shall pay for the services of the appraiser appointed by it, and District shall
pay for the appraiser appointed by it. Upon the selection of two (2) appraisers as set forth above, a
third appraiser shall be selected by the two (2) appraisers already appointed. If the two (2)
appraisers already appointed cannot agree as to the selection of a third appraiser within ten (10)
days after the date of their appointment, then the Parties jointly, or either Party, may make
application to the presiding judge of the County for the appointment of a third appraiser. Each of
the Parties hereto shall bear one-half (1 /2) of the cost of appointing a third appraiser and of paying
the third appraiser's fees. The third appraiser, however selected, shall be a person who has not
previously acted in any capacity for either Party.
Within ten (10) days after the selection of the third appraiser, a majority of the appraisers
shall set the Fair Market Value of the Property. If a majority of the appraisers are unable to set the
Fair Market Value within the stipulated period of time, the three (3)appraisals shall be added
together and their total divided by three (3); the resulting quotient shall be the Fair Market Value of
the Property. If however, the low appraisal and/or the high appraisal is/are more than twenty
percent (20%) lower and/or higher than the middle appraisal, the low appraisal and/or the high
appraisal shall be disregarded. If only one (1) appraisal is disregarded, the remaining two (2)
appraisals shall be added together and their total divided by two (2); the resulting quotient shall be
the Fair Market Value of the Property. If both the low appraisal and the high appraisal are
disregarded as set forth in this subsection, the middle appraisal shall be the Fair Market Value of
the Property. After the Fair Market Value of the Property has been set, the appraisers shall
immediately notify the Parties.
P6402\0001\840647.4
3. TITLE
(a) Immediately following the exercise of the Option by Agency, District
shall order a preliminary report ("PTR") concerning the Property together with copies of the
documents referred to in the PTR.
(b) Within ten (10) business days after the receipt of the PTR, Agency shall
notify District in writing of any title exceptions within the PTR which Agency disapproves. Any
exception not disapproved in writing within said ten (10) business day period shall be deemed
approved by Agency, and shall constitute a "Permitted Exception" hereunder. Notwithstanding
the foregoing, exceptions that evidence the obligation to pay money ("Monetary Exceptions")
shall be automatically disapproved. As to those items disapproved by Agency, District shall have
no obligation to remove and/or cure the same. Notwithstanding the foregoing, the District agrees to
remove all Monetary Exceptions at or prior to Closing (as defined herein). District shall notify
Agency in writing of any disapproved title exceptions which District is unwilling to cause to be
removed or insured against prior to Closing, and Agency shall then, within five (5) business days
thereafter, elect, by giving written notice to District and Escrow Agent (as defined herein), (A) to
terminate this Agreement, or (B) to waive its disapproval of such exceptions, in which case such
exceptions shall then be deemed to be Permitted Exceptions. Agency's failure to give such notice
shall be deemed an election to waive the disapproval of any such exception. In the event Agency
elects to terminate this Agreement both Parties shall be relieved from any liabilities and/or
obligations under this Agreement, other than those which are intended to survive such termination
by the express terms hereof. Upon such termination, each Party shall promptly take any and all
actions necessary to cancel escrow and return any documents provided to it by the other Party.
(c) The notice and refusal procedure of this Section 3 shall be repeated for any
title exception of which the Parties are notified by the Title Company after the approval of the PTR
by Agency, except that if the time period for delivery of any notice extends beyond the Closing
Date, then the Closing shall be extended for whatever period of time is necessary to accommodate
such notice period(s). Notwithstanding any other provision of this Agreement, during the Option
Term the District shall not authorize or permit the imposition or recordation of any lien or
encumbrance, or create or approve any easement, license, leasehold interest, or any similar interest
or right (collectively, "Lien Right"), against the Property which Lien Right shall last beyond the
Close of Escrow, without the prior written approval of the Agency, which approval may be
withheld in the reasonable discretion of Agency. Agency shall have twenty (20) days from receipt
of a written request from District to approve or disapprove of a Lien Right. Failure of Agency to
approve or disapprove of a Lien Right within the twenty (20) day period shall be deemed as
approval by Agency. Disapproval of a Lien Right shall be accompanied by a detailed explanation
for such disapproval.
4. DUE DILIGENCE CONTINGENCY
(a) Within ten (10) business days after the exercise of the Option, the District
shall provide to the Agency, copies of any and all information regarding the Property either in the
District's possession or under the District's control, including but not limited to, soils reports,
environmental or hazardous waste studies, engineering studies or any other studies or reports
P64021241840647.4
relating to the physical condition of the Property or any agreements relating to the physical
condition or use and development of the Property, if any.
(b) Agency and Agency's representatives, agents and designees will have the right,
at times during normal business hours, during the Due Diligence Period (as defined below) and
upon two (2) business day advance written notice to District, (which notice must describe the scope
of the planned testing and investigation) to enter upon the Property, in connection with its
proposed purchase of the Property. Agency also agrees that:
(i) All tests will be at Agency's sole cost and expense;
(ii) The persons or entities performing such tests will be properly
licensed and qualified and will have obtained all appropriate permits for performing such tests;
(iii) District will have the right of approval (which will not
be unreasonably withheld or delayed) of any proposed physical testing or drilling;
(iv) Agency will advise District in advance of the dates of all tests; and •
(v) District will have the right to have a representative of District
accompany Agency and Agency's representatives, agents or designees while they are on the
Property;
(vi) Agency will restore the Property at Agency's sole cost and expense
if this transaction does not close. Until restoration is complete, Agency will take all steps
necessary to ensure that any conditions on the Property created by Agency's testing will not
interfere with the normal operation of the Property or create any dangerous, unhealthy, unsightly or
noisy conditions on the Property.
Agency shall protect, indemnify, defend and hold the Property, District and District's directors,
officers, officials, employees, agents, representatives, successors and assigns free and harmless
from and against any and all claims, damages, Liens, stop notices, liabilities, losses, costs and
expenses, including reasonable attorneys' fees and court costs ("Costs"), resulting from Agency's
inspection and testing of the Property, including, without limitation, repairing any and all damages
to any portion of the Property, arising out of or related (directly or indirectly) to Agency's
conducting such inspections, surveys, tests, and studies. Agency shall keep the Property free of
any mechanics' liens or materialmen's liens related to Agency's right of inspection activities. The
foregoing obligations shall not be merged with the Deed (as defined below), and shall survive the
Close of Escrow and shall survive the termination of this Agreement and Escrow prior to the
Close of Escrow.
(c) The Agency shall have a period of thirty (30) days beginning with the exercise of
the Option and terminating thirty (30) days thereafter ("Due Diligence Period") within which to
determine to Agency's satisfaction, in the Agency's sole and absolute discretion, with the "Due
Diligence Contingencies" set forth in (a) or (b) above. If Agency is not satisfied within the Due
Diligence Period, Agency may terminate this Agreement by delivering written notice of such
termination to the District and Escrow Agent on or before the expiration of the Due Diligence
Period, in which case all of the Parties' rights and obligations hereunder (other than
P6402\0001\840647.4
those which are intended to survive such termination by the express terms hereof) shall terminate as
well. Upon such termination, each Party shall promptly take any and all actions necessary to
cancel Escrow and to return any documents provided to it by the other Party. If Agency does not
provide written notice of termination of this Agreement within the Due Diligence Period, the Due
Diligence Contingency shall be deemed to have been satisfied and waived, and this Agreement
shall continue in full force and effect. The waiver or satisfaction of the Due Diligence Contingency
shall constitute Agency's determination that it is satisfied with its investigation of the condition of
the Property and all material facts bearing on its purchase of the such Property.
5. REPRESENTATIONS
(a) Agency makes the following representations to District, all of which shall be
true as of the date hereof and as of the Close of Escrow and which shall survive the Close of
Escrow and delivery of the Deed:
(i) Agency is a public body, corporate and politic established and
existing pursuant to California Health and Safety Code Sections 33000, et seq.
(ii) Agency has the full legal power, right and authority to: (A) enter
into and sign this Agreement and the instruments and documents referenced herein; (B)
consummate the transactions contemplated herein; (C) take any steps or actions contemplated
hereby; and (D) perform its obligations hereunder.
(iii) All requisite action has been taken by Agency and all requisite
consents have been obtained in connection with entering into this Agreement and the instruments
and documents referenced herein to which Agency is a party, and the consummation of the
transaction contemplated hereby and, to the best knowledge of Agency, comply with all applicable
laws, statutes, ordinances, rules and governmental regulations. There are no writs, injunctions,
order or decrees of any court or governmental body which would be violated by Agency's entering
into or performing its obligations under this Agreement.
(iv) This Agreement is, and all agreements, instruments and documents
to be executed by Agency pursuant to this Agreement shall, at such time as they are required to be
executed hereunder, be duly executed by Agency, and each such agreement is, or shall be at such
time as it is required to be executed hereunder, valid and legally binding upon Agency and
enforceable in accordance with its terms, and the execution and delivery thereof shall not, with due
notice or the passage of time, constitute a default under or violate the terms of any indenture,
agreement or other instrument to which Agency is a party.
(vi) Agency understands, agrees and acknowledges that it is purchasing the
Property in "as-is/where-is" condition. District has not made and will not make, either expressly or
implied, any representations or warranties concerning the physical or environmental condition of
the Property, or its fitness for any particular use or purpose. Agency represents and warrants that
prior to the Close of Escrow, Agency will have had the opportunity to make and will have made
such an investigation and inspection of all aspects of the condition of the Property as it has deemed
necessary or appropriate, including, but not limited to soils and the
P6402\0001\840647.4
Property's compliance or non-compliance with applicable laws, rules, regulations and ordinances
(including Environmental Laws as hereinafter defined) and the existence or non-existence of
Hazardous Substances on, in or under the Property. Agency further represents and warrants that in
purchasing the Property, Agency is relying solely upon its own inspections and investigations in
proceeding with this Agreement. For purposes of this Agreement the term "Environmental Laws"
shall mean all federal, state and local laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, or requirements of any government authority regulating, relating to, or imposing liability
or standards of conduct concerning any Hazardous Substance (as later defined), or pertaining to
occupational health or industrial hygiene (and only to the extent that the occupational health or
industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or
about the Property), as now or may at any later time be in effect, including without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA) [42
USCS §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42 USCS
§§6901 et seq.]; the Clean Water Act [42 USCS §§7401 et seq.]; the Safe Drinking Water Act, also
known as the Federal Water Pollution Control Act (FWPCA) [33 USCS §§1251 et seq.]; the Toxic
Substances Control Act (TSCA) [15 USCS §§2601 et seq.]; the Hazardous Materials
Transportation Act (HMTA) [49 USCS §§1801 et seq.]; the Insecticide, Fungicide, Rodenticide
Act [7 USCS §§136 et seq.]; the Super -fluid Amendments and Reauthorization Act [41 USCS
§§6901 et seq.]; the Clean Air Act [42 USCS §§ 7401 et seq.]; the Safe Drinking Water Act [42
USCS §§ 300f et seq.;] the Solid Waste Disposal Act [42 USCS §§ 6901 et seq.]; the Surface
Mining Control and Reclamation Act [30 USCS §§ 1201. et seq.]; the Emergency Planning and
Community Right to Know Act [42 USCS §§ 11001 et seq.]; the Occupational Safety and Health
Act [29 USCS §§ 655 and 657]; the California Underground Storage of Hazardous Substances Act
[H&S C §§ 25280 et seq.]; the California Hazardous Substances Account Act [H&S C §§25300 et
seq.]; the California Hazardous Waste Control Act [H&S C §§25100 et seq.]; the California Safe
Drinking Water and Toxic Enforcement Act [H&S C §§ 24249.5 et seq.]; the Porter -Cologne Water
Quality Act (Wat C §§ 13000 et seq.] together with any amendments of or regulations promulgated
under the statutes cited above and any other federal, state or local law, statute, ordinance, or
regulation now in effect or later enacted that pertains to occupational health or industrial hygiene
(and only to the extent that the occupational health or industrial hygiene laws, ordinances, or
regulations relate to Hazardous Substances on, under, or about the Property), or the regulation or
protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water,
or land use. For purposes of this Agreement, the term "Hazardous Substances" shall include,
without limitation, petroleum or refined petroleum products, flammable explosives, radioactive
materials, asbestos, polychlorinated biphenyls, chemicals known to cause cancer or reproductive
toxicity, substances described in Civil Code Section 2929.5(e)(2), as it now exists or as
subsequently amended, those substances included within the definitions of hazardous substance,
hazardous waste, hazardous material, toxic substance, solid waste or pollutant or contaminant in
CERCLA, RCRA, TSCA, HMTA or under any other Environmental Law, pollutants,
contaminants, hazardous wastes, toxic substances or related materials.
(vii) Without limiting the generality of the foregoing provisions, Agency
acknowledges that District has not made and will not make any representations or warranties
concerning the Property's compliance or non-compliance with Environmental Law or the
existence or non-existence of Hazardous Substances in relation to the Property or otherwise.
P6402\0001\840647.4
(b) District makes the following representations to Agency, all of which shall be
true as of the date hereof and as of the Close of Escrow and which shall survive the Close of
Escrow and delivery of the Deed:
(i) District is a county water district established and existing pursuant
to California Water Code §§ 34000 et seq.
(ii) District has the full legal power, right and authority to: (A) enter
into and sign this Agreement and the instruments and documents referenced herein; (B)
consummate the transactions contemplated herein; (C) take any steps or actions contemplated
hereby; and (D) perform its obligations hereunder.
(iii) District is the owner in fee simple of the Property.
(iv) All requisite action has been taken by District and all requisite
consents have been obtained in connection with entering into this Agreement and the instruments
and documents referenced herein to which District is a party, and the consummation of the
transaction contemplated hereby and, to the best knowledge of District, comply with all applicable
laws, statutes, ordinances, rules and governmental regulations. There are no writs, injunctions,
order or decrees of any court or governmental body which would be violated by District's entering
into or performing its obligations under this Agreement.
(v) This Agreement is, and all agreements, instruments and documents
to be executed by District pursuant to this Agreement shall, at such time as they are required to be
executed hereunder, be duly executed by District, and each such agreement is, or shall be at such
time as it is required to be executed hereunder, valid and legally binding upon District and
enforceable in accordance with its terms, and the execution and delivery thereof shall not, with due
notice or the passage of time, constitute a default under or violate the terms of any indenture,
agreement or other instrument to which District is a party.
(vi) At the Closing, there will be no agreements (whether oral or
written), affecting or relating to the right of any party regarding possession of the Property, or
any portion thereof, which are obligations which will affect the Property or any portion thereof
subsequent to the recordation of the Deed except for the Permitted Exceptions.
(vii) The District covenants and agrees that, notwithstanding any other
provision of this Agreement, during the Option Term the District will not materially alter the
physical characteristics or condition of the Property or construct, or permit the construction of,
any improvements thereon without the prior written approval of the Agency, which approval may
be withheld in the reasonable discretion of the Agency; provided that District may grade the
Property and remove trees therefrom without the prior written approval of the Agency.
6. CONDITIONS
(a) In addition to the conditions provided in other provisions of this
Agreement, the following shall be conditions precedent to District's obligation to consummate the
transaction contemplated herein:
P6402\0001 \ 840647.4
terms.
described in Section 7.
(i) The Agreement shall not have terminated in accordance with its
(ii) Agency shall have delivered to the Escrow Agent the items
(iii) The representations and warranties of the Agency stated in this
Agreement shall be true and correct on and as of the Closing Date with the same force and effect as
if such representations and warranties had been made on and as of the Closing Date.
(iv) The Agency shall have performed, observed and complied with all of
the covenants, agreements, obligations and conditions required by this Agreement to be
performed, observed and complied with by it by the Closing Date.
The conditions set forth in this Section 6(a) are solely for the benefit of District
and may be waived only by District. District shall, at all times prior to the termination of this
Agreement, have the right to waive any of these conditions; provided that such waiver is in
writing. In the event that the conditions are not satisfied or waived by the District, in writing, on or
before the Closing both Parties shall be released from any liabilities or obligations under this
Agreement, other than those which are intended to survive such termination by the express terms
hereof. Upon such termination, each Party shall promptly take any and all actions necessary to
cancel escrow and return any documents provided to it by the other Party.
(b) In addition to the conditions provided in other provisions of this
Agreement, the following shall be conditions precedent to Agency's obligation to consummate
the purchase and sale transaction contemplated herein:
(i) the Agreement shall not have terminated in accordance with its
terms.
(ii) Title Company shall stand ready to issue, at the Closing, a CLTA
Standard Owners Policy of Title Insurance ("Title Policy") for the Property together with
endorsements reasonably requested by Agency, with liability equal to the purchase price, subject
only to (A) the Permitted Exceptions; (B) the standard printed exceptions and condition in the
Title Policy; and (C) the general and special taxes and assessments not then delinquent and a lien,
if any, for current real property taxes for the fiscal year in effect at the time of the Closing.
Agency, if it so desires, may obtain an ALTA Extended Coverage Policy of Title Insurance,
provided, Agency pays the difference in cost between the CLTA Standard Form Policy and the
ALTA Extended Coverage Policy of Title Insurance and the issuance of the ALTA Extended
Coverage Policy of Title Insurance does not extend the Close of Escrow.
(iii) District shall have delivered to the Escrow Agent the items
described in Section 8.
(iv) The representations and warranties of the District stated in this
Agreement shall be true and correct on and as of the Closing Date with the same force and effect as
if such representations and warranties had been made on and as of the Closing Date.
P6402\0001\840647.4
(v) The District shall have performed, observed and complied with all
of the covenants, agreements, obligations and conditions required by this Agreement to be
performed, observed and complied with by it by the Closing Date.
(vi) There shall have been no material adverse change in the condition
of the Property between the expiration date of the Due Diligence Period and the Closing Date,
normal wear and tear excepted.
The conditions set forth in this Section 6(b) are solely for the benefit of Agency and
may be waived only by Agency. Agency shall, at all times prior to the termination of this
Agreement, have the right to waive any of these conditions; provided that such waiver is in
writing. In the event that the conditions are not satisfied or waived by the Agency, in writing, on or
before the Closing both Parties shall be released from any liabilities or obligations under this
Agreement, other than those which are intended to survive such termination by the express terms
hereof. Upon such termination, each Party shall promptly take any and all actions necessary to
cancel escrow and retum any documents provided to it by the other Party.
7. AGENCY'S CLOSING DELIVERIES
At least one (1) business day prior to the Closing, Agency shall deliver or cause to be
delivered to Escrow Agent the following:
(a) The Purchase Price together with such other sums as Escrow Agent shall
require to pay Agency's share of the closing costs, prorations and adjustments set forth herein, in
immediately available funds.
(b) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction contemplated by this Agreement.
8. DISTRICT'S CLOSING DELIVERIES
At least one (1) business day prior to the Closing District shall deliver to Escrow
Agent:
(a) A deed in the form and content as set forth in Exhibit "B" attached hereto
and by this reference incorporated herein ("Deed").
(b) Certificate of Non -Foreign Status.
(c) A properly executed California form 590 or other evidence sufficient to
establish that District is not required to withhold any portion of the Purchase Price pursuant to
sections 18805 and 26131 of the California Revenue and Taxation Code.
(d) Any other documents, instruments or agreements reasonably necessary to
effectuate the transaction as contemplated by this Agreement.
P6402\0001 \ 840647.4
9. TAXES
At or prior to the Closing, the District shall pay, if not previously paid, any real
property taxes and assessments due to the Closing on the Property.
10. CLOSING
The transaction contemplated herein shall occur (the "Closing," "Closing Date" or
"Close of Escrow") on a date to be agreed upon by the Parties, but in no event later than ninety
(90) days after the exercise of the Option by Agency, unless such date is extended pursuant to the
express provisions of this Agreement.
11. CLOSING COSTS
(a) Agency shall pay fifty percent (50%) of all escrow and closing costs.
(b) District shall pay the premium for the Title Policy equal to the amount of a
CLTA standard coverage owner's policy and fifty percent (50%) of all escrow and closing costs.
13. BROKER'S COMMISSION
District represents and warrants to Agency that it has not entered into any
agreement under which a brokerage commission, finder's fee or other compensation due or
payable with respect to the transaction contemplated hereby. Agency represents and warrants to
District that it has not entered into any agreement under which a brokerage commission, finder's
fee or other compensation would be due or payable with respect to the transaction contemplated
hereby. Each Party hereby agrees to indemnify, defend, and hold the other harmless from Costs
incurred by such Party by reason of any breach or inaccuracy of the representations and
warranties contained in this Section 13. The provisions of Section 13 shall survive the Closing.
14. ESCROW
(a) Within five (5) business days after the exercise of the Option, Agency and
District each shall deposit a counterpart original of this Agreement executed by such Party (or
either of them shall deposit a counterpart executed by both Agency and District) with such escrow
company as shall be agreed to by the Parties ("Escrow Agent"). This Agreement, together with
such further instructions, if any, as the Parties shall provide to Escrow Agent by written
agreement, shall constitute the escrow instructions. If any requirements relating to the duties or
obligations of Escrow Agent hereunder are not acceptable to Escrow Agent, or if Escrow Agent
requires additional instructions, the Parties hereto agree to make such deletions, substitutions and
additions hereto as counsel for Agency and District shall mutually approve, which additional
instructions shall not substantially alter the terms of this Agreement unless otherwise expressly
provided therein.
(b) Agency shall make its deposits into escrow in accordance with Section 7.
District shall make its deposits into escrow in accordance with Section 8. Escrow Agent is hereby
authorized to close the escrow only if and when: (i) Escrow Agent has received all items
P6402\0001 \ 840647.4
to be delivered by Agency and District pursuant to Sections 7 and 8; and (ii) Title Company can
and will issue the Title Policy concurrently with the Closing.
(c) Provided that Escrow Agent shall not have received written notice in a
timely manner from Agency or District of the failure of any condition to the Closing or of the
termination of the escrow, and if and when Agency and District have deposited into the escrow the
matters required by this Agreement and Title Company can and will issue the Title Policy
concurrently with the Closing, Escrow Agent shall:
(i) Deliver to District: the Purchase Price after satisfying the closing
costs, prorations and adjustments to be paid by District; and
(ii) Deliver to Agency: (A) the Deed by causing it to be recorded in the
Official Records of the Office of the County Recorder of Riverside County, Califomia; and
immediately upon recording, delivering to Agency a conformed copy of the Deed; (B) California
form 590; (C) the Certificate of Non -Foreign Status; (D) deliver the Title Policy issued by Title
Company to Agency.
15. GENERAL PROVISIONS
(a) Each individual and entity executing this Agreement hereby represents
and warrants that he or she has the capacity set forth on the signature pages hereof with full
power and authority to bind the Party on whose behalf he or she is executing this Agreement to the
terms hereof.
(b) This Agreement is the entire agreement between the Parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and understandings,
whether oral or written, between the Parties with respect to the matters contained in this
Agreement. Any waiver, modification, consent or acquiescence with respect to any provision of
this Agreement shall be set forth in writing and duly executed by or in behalf of the Party to be
bound thereby. No waiver by any Party of any breach hereunder shall be deethed a waiver of any
other or subsequent breach.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which when taken together shall constitute one and the
same instrument. The signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signatures(s) thereon provided such signature page is attached to
any other counterpart identical thereto except having additional signature pages executed by other
Parties to this Agreement attached hereto.
(d) Time is of the essence in the performance of and compliance with each of
the provisions and conditions of this Agreement.
(e) Any communication, notice or demand of any kind whatsoever which
either Party may be required or may desire to give to or serve upon the other shall be in writing
and delivered by personal service (including express or courier service), by electronic
communication, whether by telex, telegram or telecopying (if confirmed in writing sent by
P6402 \ 0001 \ 840647.4
registered or certified mail, postage prepaid, return receipt requested), or by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
Agency:
Palm Desert Redevelopment Agency
73-510 Fred Waring Drive Palm
Desert CA 92260 Telephone: 760-
346-0611 Facsimile: 760-346-0571
Attention: Executive Director
District: Coachella Valley Water District
P.O. Box 1058
Avenue 52 and Highway 111
Coachella CA 92236
Telephone: 760-398-2651
Facsimile: 760-398-3711
Attention: General Manager/Chief Engineer
The Parties may use such other address as either party may from time to time specify in writing to
the other Party. Any notice shall be effective only upon delivery.
(f) The Parties agree to execute such instructions to Escrow Agent and such
other instruments and to do such further acts as may be reasonably necessary to carry out the
provisions of this Agreement.
(g) Wherever possible, each provision of this Agreement shall be interpreted
in such a manner as to be valid under applicable Iaw, but, if any provision of this Agreement
shall be invalid or prohibited thereunder, such invalidity or prohibition shall be construed as if
such invalid or prohibited provision had not been inserted herein and shall not affect the
remainder of such provision or the remaining provisions of this Agreement.
(h) The language in all parts of this Agreement shall be in all cases construed
simply according to its fair meaning and not strictly for or against any of the Parties hereto.
Section headings of this Agreement are solely for convenience of reference and shall not govern the
interpretation of any of the provisions of this Agreement. References to "Sections" are to Sections
of this Agreement, unless otherwise specifically provided.
(i) This Agreement shall be governed by and construed in accordance with
the laws of the State of California.
(j) If any action is brought by either Party against the other Party, the
prevailing Party shall be entitled to recover from the other Party reasonable attorneys' fees, costs
and expenses incurred in connection with the prosecution or defense of such action. For purposes
of this Agreement, the term "attorneys' fees" or "attorneys' fees and costs" shall mean the fees
and expenses of counsel to the Parties hereto, which may include printing, photostating,
duplicating and other expenses, air freight charges, and fees billed for law clerks, paralegals and
other persons not admitted to the bar but performing services under the supervision of an attorney.
P6402 \ 0001 \ 840647.4
(k) Notwithstanding anything to the contrary contained herein, this
Agreement shall not be deemed or construed to make the Parties hereto partners or joint
venturers, or to render either Party liable for any of the debts or obligations of the other.
(1) This Agreement, or a memorandum thereof, shall not be recorded or filed in
the public land or other public records of any jurisdiction by either Party and any attempt to do so
may be treated by the other Party as a breach of this Agreement.
(m) Neither Party shall assign its rights nor delegate its obligations hereunder
without obtaining the other Party's prior written consent, which may be withheld in such Party's
sole discretion. In no event shall any assignment relieve a Party from its obligations under this
Agreement. Any other purported or attempted assignment or delegation without obtaining a
Party's prior written consent shall be void and of no effect. Notwithstanding the foregoing, the
Agency may assign this Agreement, and all of its rights and obligations hereunder, to the City of
Palm Desert without the prior consent of the District, but with concurrent notice of the assignment
to District.
(n) Subject to the restrictions on transfer set forth in subsection (m) hereof,
this Agreement shall be binding upon and inure to the benefits of the heirs, successors and
assigns of the Parties hereto.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives
as of the date first above written.
AGENCY:
PALM DESERT REDEVELOPMENT
AGENCY, a public body, corporate and politic
By
Name
Its
ATTEST:
Secretary
P6402\0001\840647.4
DISTRICT:
COACHELLA VALLEY WATER DISTRICT, a
public agency of the State of California
By
Its
P6402\0001\840647.4
EXHIBIT "E"
TO DISPOSITION AND DEVELOPMENT AGREEMENT
AGENCY DEED
Coachella Valley Water District
P.O. Box 1058
Avenue 52 and Highway 111
Coachella, California 92236
Attn: General ManagerlChief Engineer
(This document is exempt from payment of a recording fee pursuant to Government Code Section 27383, and from payment of a
documentary transfer tax pursuant to Revenue and Taxation Code Section 11922)
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, THE
PALM DESERT REDEVELOPMENT AGENCY (herein called "Grantor"), a public body,
corporate and politic, of the State of California, acting to carry out the Redevelopment Plan for
the Project Area (herein called "Redevelopment Plan"), under the Community
Redevelopment Law of the State of California, hereby grants to THE COACHELLA VALLEY
WATER DISTRICT, a public agency of the State of California (herein called "Grantee"), the real
property (the "Site") legally described in the document labeled Exhibit A. attached hereto and
incorporated herein by this reference.
1. The Site is conveyed subject to the Redevelopment Plan and pursuant to that
certain Disposition and Development Agreement (the "DDA") entered into by and between
Grantor and Grantee and dated as of October _ , 2005. Grantee covenants and agrees for itself and
its successors and assigns to use the Site, the Redevelopment Plan and this Deed. The Site is also
conveyed subject to all matters of record and other matters approved by the Grantee pursuant to
the DDA.
2. Grantee 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 on account of
race, color, creed, religion, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall Grantee itself or any person claiming under or through it establish or permit any such
P6402\0001 \840647.4
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees in the site.
All deeds, leases or contracts made relative to the Site, the improvements thereon or
any part thereof, shall contain or be subject to substantially the following nondiscrimination
clauses:
a. In deeds: "The grantee herein covenants by and for himself or
herself, and 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, disability, sex, sexual orientation, 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 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, sublessee, or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or
herself, and 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, disability, sex, sexual orientation, marital status,
national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the land 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,
sublessee, subtenants or vendees in the land herein leased."
c. In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
disability, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land, 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, sublessee, subtenants or vendees in the
land."
3. The covenants contained in paragraphs I and 2 of this Deed shall be
binding for the benefit of Grantor, its successors, assigns and the City of Palm Desert against any
successor in interest to the Site or any part thereof, and such covenants shall run in favor of the
Grantor and such aforementioned parties of the entire period during which such covenants shall be
in force and effect, without regard to whether the Grantor is or remains an owner of any land or
interest therein to which such covenants relate. Grantor and such aforementioned parties, in the
event of any breach of any such covenants, shall have the right to exercise all of the rights
P6402100011840647.4 G-37
and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to
enforce the curing of such breach. The covenants contained in this Deed shall be for the benefit of
and shall be enforceable only by the Grantor, its successors and such aforementioned parties.
4. The covenants contained in this Deed shall be construed as covenants
running with the land and not as conditions which might result in forfeiture of title.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to
be executed on their behalf by their respective officers thereunto duly authorized, this
day of , 2005.
"GRANTOR"
PALM DESERT REDEVELOPMENT AGENCY, a
public body, corporate and politic
By:
Name:
Title:
ATTEST:
Secretary
The provisions of this Deed are hereby approved and accepted.
"GRANTEE"
COACHELLA VALLEY WATER DISTRICT, a
public agency of the State of California
By:
Name:
Its:
P6402\38\840647.4 G-3
State of California
)ss
County of Riverside
On , 200_, before me, personally
appeared personally known to me or 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.
Witness my hand and official seal.
State of California
) ss
County of Riverside
Signature of Notary
On , 200, before me,
personally appeared personally known to me or
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.
Witness my hand and official seal.
P6402\0001\840647.39
EXHIBIT "A" LEGAL DESCRIPTION
P6402\0001\840647.40
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain grant deed
dated as of , executed by the Palm Desert Redevelopment Agency in
favor of the Coachella Valley Water District is hereby accepted by the undersigned officer on
behalf of the Coachella Valley Water District pursuant to the authority conferred by Resolution
No. of the Coachella Valley Water District adopted on
, and the grantee consents to the recordation thereof by its duly authorized
officer.
Dated as of:
Name:
Title:
ATTEST:
District Secretary
P6402\0001\840647.41 G-7
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On
, before me,
,a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person whose name is subscribed to the
within instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument, the person, or the entity
upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
P6402\0001\840647.4
EXHIBIT "E"
RECORDING REQUESTED BY AND
AFTER RECORDATION, MAIL TO:
Coachella Valley Water District
P.O. Box 1058
Avenue 52 and Highway 111
Coachella, California 92236
Attn: General Manager/Chief Engineer
(This document is exempt from payment of a recording fee pursuant to Government Code Section 27383, and from payment of a
documentary transfer tax pursuant to Revenue and Taxation Code Section 11922)
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged, THE
PALM DESERT REDEVELOPMENT AGENCY (herein called "Grantor"), a public body,
corporate and politic, of the State of California, acting to carry out the Redevelopment Plan for
the Project Area (herein called "Redevelopment Plan"), under the Community
Redevelopment Law of the State of California, hereby grants to THE COACHELLA VALLEY
WATER DISTRICT, a public agency of the State of California (herein called "Grantee"), the real
property (the "Site") legally described in the document labeled Exhibit A, attached hereto and
incorporated herein by this reference.
3. The Site is conveyed subject to the Redevelopment Plan and pursuant to that
certain Disposition and Development Agreement (the "DDA") entered into by and between
Grantor and Grantee and dated as of October _ , 2005. Grantee covenants and agrees for itself and
its successors and assigns to use the Site, the Redevelopment PIan and this Deed. The Site is also
conveyed subject to all matters of record and other matters approved by the Grantee pursuant to
the DDA.
4. Grantee 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 on account of
race, color, creed, religion, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor
shall Grantee itself or any person claiming under or through it establish or permit any such
P6402\0001 \840647.4
practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessee or vendees in the site.
All deeds, leases or contracts made relative to the Site, the improvements thereon or
any part thereof, shall contain or be subject to substantially the following nondiscrimination
clauses:
d. In deeds: "The grantee herein covenants by and for himself or
herself, and 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, disability, sex, sexual orientation, 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 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, sublessee, or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
e. In leases: "The lessee herein covenants by and for himself or
herself, and 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, disability, sex, sexual orientation, marital status,
national origin or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure or
enjoyment of the land 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,
sublessee, subtenants or vendees in the land herein leased."
f. In contracts: "There shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
disability, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land, 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, sublessee, subtenants or vendees in the
land."
3. The covenants contained in paragraphs 1 and 2 of this Deed shall be
binding for the benefit of Grantor, its successors, assigns and the City of Palm Desert against any
successor in interest to the Site or any part thereof, and such covenants shall run in favor of the
Grantor and such aforementioned parties of the entire period during which such covenants shall be
in force and effect, without regard to whether the Grantor is or remains an owner of any land or
interest therein to which such covenants relate. Grantor and such aforementioned parties, in the
event of any breach of any such covenants, shall have the right to exercise all of the rights
P640210001 \840647.4
and remedies, and to maintain any actions at law or suits in equity or other proper proceedings to
enforce the curing of such breach. The covenants contained in this Deed shall be for the benefit of
and shall be enforceable only by the Grantor, its successors and such aforementioned parties.
4. The covenants contained in this Deed shall be construed as covenants running
with the land and not as conditions which might result in forfeiture of title.
IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be
executed on their behalf by their respective officers thereunto duly authorized, this
day of , 2005.
"GRANTOR"
PALM DESERT
REDEVELOPMENT
AGENCY, a public body,
corporate and politic
By:
Name:
Title:
ATTEST:
Secretary
The provisions of this Deed are hereby approved and accepted.
"GRANTEE"
COACHELLA VALLEY
WATER DISTRICT, a
public agency of the State
of California
By:
P6402\0001 \ 840647.45
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain grant deed
dated as of , executed by the Palm Desert Redevelopment
Agency in favor of the Coachella Valley Water District is hereby accepted by the undersigned
officer on behalf of the Coachella Valley Water District pursuant to the authority conferred by
Resolution
No. of the Coachella Valley Water District adopted on
, and the grantee consents to the recordation thereof by its duly authorized
officer.
Dated as of:
Name:
Title:
ATTEST:
District Secretary
P6402\0001\840647.48
STATE OF CALIFORNIA
COUNTY OF RIVERSIDE
On
before me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and
that by his/her signature on the instrument, the person, or the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
P6402\49\840647.4
EXHIBIT "F'
TO DISPOSITION AND DEVELOPMENT AGREEMENT
RECORDING REQUESTED BY AND
AFTER RECORDATION, MAIL TO:
Palm Desert Redevelopment Agency
73-510 Fred Waring Dr.
Palm Desert, California 92260
Attn: Executive Director
APN:
Recording Fee: Exempt Pursuant to
Government Code § 27383
Documentary Transfer Tax:
Exempt Pursuant to Revenue &
Taxation Code § 11922
GRANT DEED
For a valuable consideration, receipt of which is hereby acknowledged, COACHELLA
VALLEY WATER DISTRICT, a public agency, grants to PALM DESERT REDEVELOPMENT
AGENCY, a public body corporate and politic, that certain real property located in the County of
Riverside, State of California, and more particularly described in Exhibit "A" attached hereto and
by this reference incorporated herein ("Property").
The transfer of the Property is subject to: (1) covenants, conditions, restrictions, easements,
reservations and rights -of -way that are appurtenant and of record; and (2) current real property
taxes and unpaid general and special bonds or assessments.
IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of the day and
year indicated.
COACHELLA VALLEY WATER DISTRICT, a
public agency
By
Name
Its
P6402\50\840647.4
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the Grant Deed dated
, 2005 executed by Coachella Valley Water District in favor of Palm
Desert Redevelopment Agency, a public body corporate and politic is hereby accepted by the
undersigned duly appointed officer or agent, on behalf of the Palm Desert Redevelopment
Agency pursuant to authority conferred by Resolution No. of the Palm Desert
Redevelopment Agency adopted on and the grantee consents to the recordation thereof by its duly
authorized officer or agent.
Dated:
PALM DESERT REDEVELOPMENT AGENCY, a
body corporate and politic
By
Name
Title
ATTEST:
Agency Secretary
P6402\00011840647.4
• ACKNOWLEDGMENT
STATE OF CALIFORNIA
) ss.
COUNTY OF RIVERSIDE
On , before
me, , a
Notary Public in and for the State of California, personally appeared
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for the State of California
(SEAL)
P6402152\840647.4
EXHIBIT "G"
TO DISPOSITION AND DEVELOPMENT AGREEMENT
MEMORANDUM OF OPTION
Recording requested by
and after recording return to:
Palm Desert Redevelopment Agency 73-510 Fred Waring Drive
Palm Desert, CA 92260-2578
Attn: Executive Director
SPACE ABOVE THIS LINE FOR RECORDERS USE
MEMORANDUM OF OPTION
THIS MEMORANDUM OF OPTION (this "Memorandum") is dated as of
, 2005, by and between COACHELLA VALLEY WATER DISTRICT, a
public agency of the State of California ("Owner") and the PALM DESERT
REDEVELOPMENT AGENCY, a public body, corporate and politic ("Optionee").
1. Owner and Optionee have entered into an Option Agreement (the "Option
Agreement") dated as of the date hereof. Owner hereby grants to Optionee an exclusive option
(the "Option") to purchase the property described in Exhibit A attached hereto any by this
reference incorporated herein (the "Property"), all in accordance with the terms and conditions
set forth in the Option Agreement.
2. The last day on which Optionee may exercise the Option under the Option
Agreement is , 2015 (the "Termination Date"). On the Termination Date
the Option and the Option Agreement shall terminate and be of no further force and effect and
the Property shall no longer be subject to any lien, claim, encumbrance or other cloud on title
created thereby or by this Memorandum.
3. Owner and Optionee desire to record this Memorandum in order that third
parties may have notice of the existence of the Option Agreement.
4. In the event of a conflict between this Memorandum and any of the
terms and conditions of the Option Agreement, the terms and conditions of the Option
Agreement shall
P6402 \ 54 \ 840647.4
1-1
govern and nothing herein contained shall be construed to be a modification of or amendment to
any of such terms and conditions.
IN WITNESS WHEREOF, the parties have caused this Memorandum to be executed as of
the date first above written for the purpose of providing an instrument for recording.
"Owner"
COACHELLA VALLEY WATER
DISTRICT, a public agency of the
State of California
By:
Name:
Title:
"Optionee" PALM DESERT REDEVELOPMENT
AGENCY, a public body, corporate and
politic
By:
Name:
Title:
ATTEST:
APPROVED AS TO FORM:
OWNER COUNSEL:
By:
Name:
Title:
OPTIONEE COUNSEL:
By:
Name:
Title:
P6402100011840647.4 I-4
STATE OF
) ss.
COUNTY OF
On the day of , in the year , before me,
, personally appeared
, personally known to
me or 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 which the person(s) acted, executed the instrument. Witness my hand
and official seal.
Notary Public
[NOTARIAL SEAL]
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On the day of , in the year , before me,
, personally appeared
, personally known to
me or 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 which the person(s) acted, executed the instrument.
Witness my hand and official seal.
INTntary Pub1ir
[NOTARIAL SEAL]
P64021561840647.4 1-3
Exhibit "A"
Legal Descrintion of Pronertv
P6402100011840647.4 1-4
CITY OF PALM DESERT
NOTICE OF PUBLIC HEARING
DISPOSITION AND DEVELOPMENT AGREEMENT
This notice is given pursuant to the provisions of Section 33433 of the
Califomia Health and Safety Code.
You are hereby notified that on Thursday, in
the City of Palm Desert, Council Chambers, at the Palm Desert City Hall located at
73-510 Fred Waring Drive, Palm Desert, California, a public hearing will be conducted
jointly by the Palm Desert City Council ("City") and the Palm Desert Redevelopment
Agency ("Agency"). At that public hearing the City and the Agency will consider a
proposed Disposition and Development Agreement ("Agreement") for the conveyance of
property located at the Southeast comer of Beacon Hill Drive and Hovley Lane (Palm
Desert, CA).
Pursuant to the provisions of Section 33433 of the California Health and
Safety Code, a summary report has been prepared regarding various matters related to
the Agreement. Copies of the summary report and the Agreement are available for
public review and copying at the office of the City Clerk of the City of Palm Desert
during regular business hours.
At any time not later than the hour of the public hearing, any person
objecting to said Agreement may file in writing, with the City Clerk, a statement of his or
her objections thereto. Any person wishing to address the City Council/Agency on
these matters will be provided the opportunity to do so at the scheduled public hearing.
At said hearing, the City Council and Agency shall hear and pass upon all written and
oral objections and comments.
Dated this _19th day of _January _, 2006.
RACHELLE D. KLASSN, CITY CLERK
to the City of Palm Desert and Secretary to the
Palm Desert Redevelopment Agency
P6402100011866059.1
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