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HomeMy WebLinkAboutCC RES 2014-30RESOLUTION NO. 2014-30 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT APPROVING THE EXECUTION AND DELIVERY OF A BOND PROCEEDS FUNDING AGREEMENT REGARDING PORTOLA AVENUE/I-10 INTERCHANGE PROJECT BY AND AMONG THE COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, THE CITY OF PALM DESERT, THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY AND TAKING CERTAIN RELATED ACTIONS RECITALS: A. The Coachella Valley Association of Governments ("CVAG") is a California joint powers authority, duly organized and existing pursuant to the Joint Exercise of Powers Act, (set forth in California Government Code Section 6500 et seq.) and agreements among its members. B. The voters of Riverside County, California, previously approved a highway financing measure known as "Measure A" and, subsequently in November, 2002, an extension of Measure A, to provide funds for regional transportation and highway projects. C. CVAG has caused to be prepared the Transportation Project Prioritization Study ("TPPS"), a valley -wide study prepared and regularly updated under the auspices of CVAG, which identifies various transportation and highway projects throughout the Coachella Valley as projects of regional importance. D. CVAG, by agreement with its members and with the Riverside County Transportation Commission ("RCTC"), has been designated as the agency through which certain funds, including Measure A revenues, are disbursed for the purposes of completing such TPPS projects of regional importance. E. According to CVAG policy, for funding eligible costs of a TPPS Project, CVAG contributes up to 75 percent of such costs and the applicable local agency (or agencies) contributes the remaining 25 percent of such costs (the "Local Share"). F. Among the TPPS Projects is the construction of an interchange at Portola Avenue and Interstate 10 (the "Project") located in the City. G. Pursuant to four separate indentures, each dated as of July 1, 2006 (collectively, the "Indentures"), by and between the Palm Desert Financing Authority (the "Financing Authority") and Wells Fargo Bank, National Association, as trustee (the "Bond Trustee"), the Financing Authority has previously issued the following bonds: i. The Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 2), 2006 Series A (the "PA2 2006A Bonds"); C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHL1 HFC\Palm Desert - City reso re CVAG Bond Proceeds Funding Agrmt RESOLUTION NO. 2014-30 ii. The Palm Desert Financing Authority Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series B (the "PA2 2006B Bonds"); The Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 2), 2006 Series C (the "PA2 2006C Bonds"); iv. The Palm Desert Financing Authority Subordinate Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series D (collectively with the PA2 2006A Bonds, the PA2 2006B Bonds and the PA2 2006C Bonds, the "PA2 2006 Bonds"); v. The Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 3), 2006 Series A (the "PA3 2006A Bonds"); vi. The Palm Desert Financing Authority Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series B (the "PA3 2006B Bonds"); and vii. The Palm Desert Financing Authority Subordinate Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series C (collectively with the PA3 2006A Bonds and the PA3 2006B Bonds, the "PA3 2006 Bonds"). H. Pursuant to four loan agreements, each dated as of July 1, 2006, (collectively, the "Loan Agreements"), by and among the Financing Authority, the former Palm Desert Redevelopment Agency (the "Former Redevelopment Agency") and the Bond Trustee, proceeds of the PA2 2006 Bonds and the PA3 2006 Bonds were lent to the Former Redevelopment Agency as loans (the "Loans"). I. The Former Redevelopment Agency caused portions of the Loans to be deposited into certain Project Funds (the "Project Funds"), which were established pursuant to the Loan Agreements. J. Pursuant to the Loan Agreements, moneys in the Project Funds shall be disbursed and used from time to time to finance the costs of redevelopment projects of benefit to the Former Redevelopment Agency's Project Area No. 2 and Project Area No. 3, respectively. K. As documented by the Certificates Regarding Compliance with Certain Tax Matters, each dated July 25, 2006 (the "Tax Certificates"), it was intended, at the time of issuance of the PA2 2006 Bonds and the PA3 2006 Bonds, that the projects to be financed from moneys deposited in the Project Funds include, among others, the Project (described as the "construction of on -and off- ramps at Portola Avenue and Interstate 10" in the Tax Certificates). L. Pursuant to AB X1 26 (which became effective at the end of June 2011) and the California Supreme Court's decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., 53 Ca1.4th 231 (2011), the Former Redevelopment -2- C \Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHLIHFC\Palm Desert - City reso re CVAG Bond Proceeds Funding Agrmt RESOLUTION NO. 2014-30 Agency was dissolved as of February 1, 2012, and the Successor Agency to the Palm Desert Redevelopment Agency ("Successor Agency") was constituted. M. Pursuant to Section 34175(b) of the California Health and Safety Code ("HSC"), all assets of the Former Redevelopment Agency, including all unspent proceeds of the PA2 2006 Bonds and of the PA3 2006 Bonds remaining in the Project Funds (respectively, the "PA2 Bond Proceeds" and the "PA3 2006 Bond Proceeds") transferred to the Successor Agency's control by operation of law. N. According to HSC Section 34191.4, after the Successor Agency's receipt of a finding of completion (the "Finding of Completion") issued by the California State Department of Finance (the "DOF") pursuant to HSC Section 34179.7, the PA2 2006 Bond Proceeds and the PA3 2006 Bond Proceeds shall be used for the purposes for which the PA2 2006 Bonds and the PA3 2006 Bonds were sold respectively, in a manner consistent with the original bond covenants. O. By a letter, dated May 15, 2013, the DOF informed the Successor Agency that the DOF has issued a Finding of Completion to the Successor Agency. P. The Successor Agency desires to use a portion of the PA2 2006 Bond Proceeds and a portion of the PA3 2006 Bond Proceeds to provide funds to complete the Project. Q. In consideration of the City's staffing capability and established procedures for public works projects and CVAG's role in administering disbursement of funds for CVAT Projects, the Successor Agency wishes to enter into the Bond Proceeds Funding Agreement Regarding Portola Avenue/I-10 Interchange Project (the "Funding Agreement"), by and among CVAG, the City and the Successor Agency, substantially in the form set forth in Exhibit A, for the City to perform such coordination with CVAG and such other work as necessary or desirable to complete the Project and for the transfer of a portion of the PA2 2006 Bond Proceeds and a portion of the PA3 2006 Bond Proceeds to CVAG in connection with the administration of funds to pay for the Project. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. Recitals. The above recitals, and each of them, are true and correct. Section 2. Funding Agreement. The Funding Agreement, in the form attached hereto as Exhibit A, is hereby approved. Each of the Mayor (or in the Mayor's absence, the Mayor Pro Tem) and the City Manager (each, an Authorized Officer"), individually, is hereby authorized to execute and deliver, for and in the name of the City, the Funding Agreement, in substantially such form, with changes therein as the Authorized Officer executing the same may approve (such approval to be conclusively evidenced by the execution and delivery thereof). -3- C:\Users\gsanchezWppData\Local Microsoft\Windows\Temporary Internet Files\Content.Outlook\9XHL1 HFC\Palm Desert - City reso re CVAG Bond Proceeds Funding Agrmt RESOLUTION NO. 2014-30 Section 3. Other Acts. The Authorized Officers and all other officers of the City are hereby authorized, jointly and severally, to execute and deliver any and all necessary documents and instruments and to do all things which they may deem necessary or proper to effectuate the purposes of this Resolution and the Funding Agreement. Any actions previously taken by officers of the City consistent with the purposes of this Resolution, the Funding Agreement are hereby ratified and confirmed. Section 4. Effective Date. This Resolution shall take effect immediately upon adoption. APPROVED and ADOPTED this 24th day of April, 2014. AYES: BENSON, HARNIK, SPIEGEL, WEBER, and TANNER NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: 9- RA EL E D. KLASSEN, CITY CLE CITY OF PALM DESERT, CALIFORNIA VAN G. TANNER, MAYOR -4- C:\Users\gsanchez\AppData\Local\Microsoft\Windows\Temporary Internet Files \Content.Outlook\9XHL1 HFC\Palm Desert - City reso re CVAG Bond Proceeds Funding Agrmt RESOLUTION NO. 2014-30 EXHIBIT A Bond Proceeds Funding Agreement Regarding Portola Avenue/I-10 Interchange Project (in substantial final form) (see attached) 5 RESOLUTION NO. 2014-30 [This page has intentionally been left blank.] RESOLUTION NO. 2014-30 CONTRACT NO. C33520 BOND PROCEEDS FUNDING AGREEMENT REGARDING PORTOLA AVENUE/ I-10 INTERCHANGE PROJECT This BOND PROCEEDS FUNDING AGREEMENT REGARDING PORTOLA AVENUE/I-10 INTERCHANGE PROJECT (this "Agreement"), dated as of , 2014, is entered into by and among the COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS ("CVAG"), the CITY OF PALM DESERT (the "City"), and the SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY (the "Successor Agency," and collectively with the City and CVAG, the "Parties," with each being a "Party"). RECITALS: A. CVAG is a California joint powers authority, duly organized and existing pursuant to the Joint Exercise of Powers Act, set forth in California Government Code Section 6500 et seq. and agreements among its members. B. The voters of Riverside County, California, previously approved a highway financing measure known as "Measure A" and, subsequently in November, 2002, an extension of Measure A, to provide funds for regional transportation and highway projects. C. CVAG has caused to be prepared the Transportation Project Prioritization Study ("TPPS"), a valley -wide study prepared and regularly updated under the auspices of CVAG, which identifies various transportation and highway projects throughout the Coachella Valley as projects of regional importance. D. CVAG, by agreement with its members and with the Riverside County Transportation Commission ("RCTC"), has been designated as the agency through which certain funds, including Measure A revenues, are disbursed for the purposes of completing such TPPS projects of regional importance. E. According to CVAG policy, for funding eligible costs of a TPPS Project, CVAG contributes up to 75 percent of such costs and the applicable local agency (or agencies) contributes the remaining 25 percent of such costs (the "Local Share"). F. Among the TPPS Projects is the construction of an interchange at Portola Avenue and Interstate 10 (the "Project") located in the City. G. Pursuant to four separate indentures, each dated as of July 1, 2006 (collectively, the "Indentures"), by and between the Palm Desert Financing Authority (the "Financing Authority") and Wells Fargo Bank, National Association, as trustee (the "Bond Trustee"), the Financing Authority has previously issued the following bonds: (i) The Palm Desert Financing Authority Tax Allocation Refunding Revenue Bonds (Project Area No. 2), 2006 Series A (the "PA2 2006A Bonds"); G lyda\Veronica Tapia\Word Files \Staff Repons\Successor Agency\Bond Proceed Agreements1Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _f-10 project 2-20 14 docx CONTRACT NO. C33520 RESOLUTION NO. 2014-30 (ii) The Palm Desert Financing Authority Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series B (the "PA2 2006B Bonds"); (iii) The Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 2), 2006 Series C (the "PA2 2006C Bonds"); (iv) The Palm Desert Financing Authority Subordinate Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series D (collectively with the PA2 2006A Bonds, the PA2 2006B Bonds and the PA2 2006C Bonds, the "PA2 2006 Bonds"); (v) The Palm Desert Financing Authority Tax Allocation Revenue Bonds (Project Area No. 3), 2006 Series A (the "PA3 2006A Bonds"); (vi) The Palm Desert Financing Authority Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series B (the "PA3 2006B Bonds"); and (vii) The Palm Desert Financing Authority Subordinate Tax Allocation Revenue Capital Appreciation Bonds (Project Area No. 2), 2006 Series C (collectively with the PA3 2006A Bonds and the PA3 2006B Bonds, the "PA3 2006 Bonds"). H. Pursuant to four loan agreements, each dated as of July 1, 2006, (collectively, the "Loan Agreements"), by and among the Financing Authority, the former Palm Desert Redevelopment Agency (the "Former Redevelopment Agency") and the Bond Trustee, proceeds of the PA2 2006 Bonds and the PA3 2006 Bonds were lent to the Former Redevelopment Agency as loans (the "Loans"). I. The Former Redevelopment Agency caused portions of the Loans to be deposited into certain Project Funds (the "Project Funds"), which were established pursuant to the Loan Agreements. J. Pursuant to the Loan Agreements, moneys in the Project Funds shall be disbursed and used from time to time to finance the costs of redevelopment projects of benefit to the Former Redevelopment Agency's Project Area No. 2 and Project Area No. 3, respectively. K. As documented by the Certificates Regarding Compliance with Certain Tax Matters, each dated July 25, 2006 (the "Tax Certificates"), it was intended, at the time of issuance of the PA2 2006 Bonds and the PA3 2006 Bonds, that the projects to be financed from moneys deposited in the Project Funds include, among others, the Project (described as the "construction of on -and off- ramps at Portola Avenue and Interstate 10" in the Tax Certificates). -2- G Vda\Veronica Tapia\Word Files\Staff Reports\Successor Agency 1Bond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _I-10 project 2-20-14 docx CONTRACT NO. C33520 RESOLUTION NO. 2014-30 L. Pursuant to AB X1 26 (which became effective at the end of June 2011) and the California Supreme Court's decision in California Redevelopment Association, et al. v. Ana Matosantos, et al., 53 Ca1.4th 231 (2011), the Former Redevelopment Agency was dissolved as of February 1, 2012, and the Successor Agency was constituted. M. Pursuant to Section 34175(b) of the California Health and Safety Code ("HSC"), all assets of the Former Redevelopment Agency, including all unspent proceeds of the PA2 2006 Bonds and of the PA3 2006 Bonds remaining in the Project Funds (respectively, the "PA2 Bond Proceeds" and the "PA3 2006 Bond Proceeds") transferred to the Successor Agency's control by operation of law. N. According to HSC Section 34191.4, after the Successor Agency's receipt of a finding of completion (the "Finding of Completion") issued by the California State Department of Finance (the "DOF") pursuant to HSC Section 34179.7, the PA2 2006 Bond Proceeds and the PA3 2006 Bond Proceeds shall be used for the purposes for which the PA2 2006 Bonds and the PA3 2006 Bonds were sold respectively, in a manner consistent with the original bond covenants. O. By a letter, dated May 15, 2013, the DOF informed the Successor Agency that the DOF has issued a Finding of Completion to the Successor Agency. P. The Successor Agency desires to use a portion of the PA2 2006 Bond Proceeds and a portion of the PA3 2006 Bond Proceeds to provide funds to complete the Project. Q. In consideration of the City's staffing capability and established procedures for public works projects and CVAG's role in administering disbursement of funds for TPPS Projects, the Successor Agency wishes to enter into this Agreement, for the City to perform such coordination with CVAG and such other work as necessary or desirable to complete the Project and for the transfer of a portion of the PA2 2006 Bond Proceeds and a portion of the PA3 2006 Bond Proceeds to CVAG in connection with the administration of funds to pay for the Project. R. Pursuant to HSC Section 34177(1), the Successor Agency must prepare a Recognized Obligation Payment Schedule ("ROPS") for each six-month fiscal period ("ROPS Period"). The ROPS must be submitted to the Oversight Board of the Successor Agency (the "Oversight Board") and the DOF for approval. S. Pursuant to HSC Section 34191.4(c)(2), the use of PA2 2006 Bond Proceeds and PA3 2006 Bond Proceeds for obligations must be listed on a ROPS. T. Prior to the execution of this Agreement, the Successor Agency has prepared a ROPS listing line items which include the use of the PA2 2006 Bond Proceeds (in the amount of $6,800,000) and the PA3 2006 Bond Proceeds (in the amount of $8,200,000) for the Project, and the Oversight Board and the DOF have approved the relevant ROPS items. -3- G \rda\Veronica Tapia\Word Files\Statt Reports\Successor Agency\Bond Proceed Agreements Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _1-10 project 2-20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 OB-072 U. Resolution No. adopted by the Oversight Board on , 2014 approving the Successor Agency's execution and delivery of this Agreement was approved [deemed approved] by the DOF pursuant to HSC Section 34179(h) on , 2014 (the "DOF Agreement Approval Date"). NOW, THEREFORE, THE PARTIES DO HEREBY AGREE AS FOLLOWS: Section 1. As between the Successor Agency and the City, the City agrees to perform or cause to be performed all work required for the completion of the Project, including any coordination with CVAG as necessary or appropriate in connection with the Project. For such performance, the City shall comply with all applicable federal, state and local laws, rules and regulations. Subject to the covenants set forth herein, as between the Successor Agency and the City, the City shall have the sole discretion with respect to the design, planning, specification and the timing with respect to all components of the Project. Subject to the City's compliance with its covenants set forth in this Agreement, it is hereby acknowledged and agreed that the City's implementation of the Project may be governed by separate agreements between the City and CVAG, either previously or hereafter entered. Section 2. (a) No later than 30 days after the DOF Agreement Approval Date, the Successor Agency shall transfer or caused to be transferred to CVAG the following (together, the "SA Bond Proceeds"): (i) $6,800,000 of PA2 Bond Proceeds, and (ii) $8,200,000 of the PA3 2006 Bond Proceeds. (b) CVAG shall immediately deposit the SA Bond Proceeds, upon receipt, into a separate interest -bearing account (the "SA Contribution Account") at a financial institution (the "Bank") designated by the City. The City may from time to time designate a different Bank for the holding of the SA Contribution Account by a written notice to CVAG. Upon receipt of such written notice, CVAG shall take prompt and timely actions to comply with the new Bank designation. The City shall pay all costs due to the Bank(s) associated with the establishment and maintenance of the SA Contribution Account, including any costs relating to the change of Banks for the holding of the SA Contribution Account. (c) The SA Contribution Account is being created solely for the purpose of, and shall be held in trust for, the effectuation of this Agreement. All interest earnings from moneys deposited in the SA Contribution Account shall be kept in and become a part of the SA Contribution Account. CVAG shall provide, or cause to be provided, to the City copies of the Bank statements showing the then current balance of the SA Contribution Account no less frequently than on a quarterly basis. Section 3. Except as otherwise provided in Section 5 of this Agreement, moneys in the SA Contribution Account shall be used solely for the Project. CVAG shall from time to time make disbursements from the SA Contribution Account for the Project pursuant to requests submitted by the City. Each such request by the City shall be solely for payments constituting the Local Share of the Project and shall be in -4- G \rda\Veronica Tapia\Word Files Staff Reports\Successor Agency\Bond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _I-10 project 2.20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 conformance with CVAG requirements, any other applicable agreements between the City and CVAG and the covenants set forth in Section 4. Section 4. The City shall take all such actions as necessary or appropriate to ensure that the maintenance of the SA Contribution Account and all disbursement of moneys from the SA Contribution Account shall be consistent with the covenants in the Loan Agreements and the Tax Certificates, including, but not limited to, the covenants regarding the tax-exempt status of interest on the PA2 2006 Bonds and PA3 2006 Bonds under the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder. CVAG shall take in a timely manner all such actions as requested by the City to cooperate with City to effectuate this Section 4; provided, that CVAG does not assume any responsibility for verifying that any such request by the City is in fact in compliance with the covenants in the Loan Agreements or the Tax Certificates. CVAG may conclusively rely on the City's representations that such requests and directions are in compliance with this Section 4. Section 5. Upon the completion of the Project or the disbursement of all payments applicable to the Local Share of the Project, whichever is earlier, CVAG shall, within ten business days of written notice by the City, release and transfer all moneys remaining in the SA Contribution Account to the Successor Agency. The Successor Agency shall re -deposit all of such released moneys into the applicable Project Fund(s) for use for other legally permissible purposes. Section 6. If it is determined that the Local Share of the Project exceeds the amount deposited into the SA Contribution Account, the City's Finance Director may (but is not obligated to) notify the Successor Agency regarding additional transfer(s) of unspent PA2 2006 Bond Proceeds or PA3 2006 Bond Proceeds to the SA Contribution Account, with a specification as to the amount (the "Additional Funding Amount"). Upon receipt of such notice from the City's Finance Director, to the extent that sufficient PA2 2006 Bond Proceeds or PA3 2006 Bond Proceeds remain available, the Successor Agency shaft list the Additional Funding Amount on the ROPS for the next applicable ROPS Period. Upon obtaining the Oversight Board's and the DOF's approval for such ROPS item(s), the Successor Agency shall transfer or caused to be transferred the Additional Funding Amount to CVAG within 30 days after the commencement of the applicable ROPS Period (or as soon thereafter as practicable). CVAG shall, upon receipt, immediately deposit such Additional Funding Amount into the SA Contribution Account. Section 7. If at any time the City determines that it shall make contributions to the Local Share of the Project from other sources available to the City, nothing herein shall constitute a restriction on such contribution; provided, in order to maintain clear records for the purposes of Section 4 of this Agreement, any such contribution from other sources shall be kept separately from the SA Contribution Account. Section 8. This Agreement shall terminate on the earlier of: (a) the transfer and release of moneys remaining in the SA Contribution Account after the completion of the Project pursuant to Section 5, or (b) the disbursement of all moneys in the SA -5- G \rda\Veroroca Tapia\Word Files\Staff Reports\Successor Agency Bond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Ponola _I-10 protect 2-20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 Contribution Account pursuant to Section 3, unless the City (in its sole discretion and determination) provides prior written notice to CVAG that the City intends to request Additional Funding Amount pursuant to Section 6; provided Sections 4 and 12 shall survive the termination of this Agreement. Section 9. The Parties acknowledge and agree that the PA2 2006 Bond Proceeds and the PA3 2006 Bond Proceeds shall be the sole source of the Successor Agency's contribution to the Project pursuant to this Agreement. The Successor Agency is not obligated by this Agreement to use any other source of moneys available to the Successor Agency to make payments for the Project. Section 10. CVAG shall maintain or caused to be maintained proper books and records showing accurate and updated balances of the SA Contribution Account and disbursements therefrom. Such books and records shall be available for inspection by the officers and agents of the City and the Successor Agency during regular business hours upon three working days notification. Section 11. The Parties agree to take all appropriate steps and execute any documents which may reasonably be necessary or convenient to implement the intent of this Agreement. Section 12. This Agreement is for funding purposes only and nothing herein shall be construed so as to constitute CVAG as a party to the construction or in ownership or a partner or joint venturer with the City as to the Project. The City shall assume the defense of, indemnify and hold harmless CVAG, its member agencies, and their respective officers, directors, agents, employees, servants, attorneys, and volunteers, and each and every one of them, from and against all actions, damages, claims, losses and expenses of every type and description to which they may be subjected or put by reason of or resulting from the actions or inactions of the City related to the Project or taken in the performance of this Agreement or any agreement entered into by City with reference to the Project. CVAG shall assume the defense of, indemnify and hold harmless the City and the Successor Agency and their respective officers, directors, agents, employees, servants, attorneys, and volunteers, and each of them, from and against all actions, damages, claims, losses, and expenses of every type and description to which they may be subjected or put by reason of or resulting from the actions or inactions of CVAG taken in the performance of this Agreement. Section 13. (a) Failure or delay by any Party to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided, however, that if the Party who is otherwise claimed to be in default by another Party commences to cure, correct or remedy the alleged default, within five calendar days after receipt of written notice specifying such default, and shall diligently complete such cure, correction or remedy, such Party shall not be deemed to be in default hereunder. (b) The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of -6- G.lydalVeronica Tapia\Word Files\Staff Reports\Successor Agency18ond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _I-10 project 2-20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 default; provided, however, the injured party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice as specified herein. (c) Any failure or delay by a Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default. The exercise by a Party of one or more rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. No waiver of any breach of any agreement, provision or failure of a condition contained herein shall be deemed a waiver of any preceding or succeeding breach or failure thereof, or of any other agreement, provision or condition contained herein, nor an extension of time for performance of any other obligation or act. (d) In the event that a default of any Party remain uncured for more than five calendar days following receipt of written notice of default, as provided above, a "breach" shall be deemed to have occurred. In the event of a breach, the injured Party or Parties shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings. (e) In the event of a breach or default of this Agreement, a non - breaching Party shall be entitled to all remedies available pursuant to the terms of this Agreement, at law and in equity, including, but not limited to, specific performance of this Agreement, and all such remedies are cumulative in nature and may be asserted by such Party in the alternative and the assertion of a remedy by a Party shall not be deemed an exclusive election of remedies or waiver of any other rights conferred on that Party by the terms of this Agreement. Section 14. In the event any action, suit or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorney's fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof. Section 15. This Agreement shall be governed by interpreted under, construed and enforced in accordance with, the laws of the State of California. Any legal actions or proceedings arising from or related to this Agreement shall be brought in the County of Riverside. Section 16. No official, agent, or employee of any Party, or members of the City Council, or members of the Successor Agency Board of Directors, Oversight Board, or the CVAG governing board shall be individually or personally liable for any payment hereunder in the event of any default or breach by the Successor Agency, the City or CVAG, or for any amount which may otherwise become due to the City, Successor Agency or CVAG, or successor thereto, or on any obligations under the terms of this Agreement. -7- G Vda\Veronica Tapia\Word Files Staff Reports\Successor Agency Bond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _I-10 protect 2-20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 Section 17. This Agreement shall not be assignable by any Party without the prior written consent of the other Parties. Section 18. This Agreement may be amended from time to time by written instruments executed by all three Parties. Section 19. This Agreement is in all respect intended by each Party to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against any of them. Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contracts shall govern the interpretation of any uncertainty or ambiguity of this Agreement. Section 20. Except as expressly provided herein, this Agreement contains the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior understandings, if any, with respect thereto. Nothing in this Agreement, expressed or implied, is intended to give to any person or entity other than the Parties hereto any right, remedy or claim under or by reason of this Agreement. Section 21. If any provision of this Agreement is found to be invalid, or if the application of this Agreement to any person or circumstance is disallowed or found to be invalid, the remainder of the provisions of the Agreement, or the application of the Agreement to persons or circumstances other than those to which its application was disallowed or found invalid, will not be affected and will remain in full force and effect. Section 22. This Agreement may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts shall together constitute but one and the same Agreement. Section 23. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective Party. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURES FOLLOW] -8- G \rda\Veron,ca Tapia\Word Files\Staff Reports\Successor Agency\Bond Proceed Agreements\Palm Desert SA - CVAG agreement re use of bond proceeds for Portola _I-10 project 2-20-14 docx RESOLUTION NO. 2014-30 CONTRACT NO. C33520 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers. COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS Attest: By Don Adolph, Chairman, Executive Committee Tom Kirk, Executive Director CITY OF PALM DESERT Attest: By Van G. Tanner, Mayor Rachelle D. Klassen, City Clerk SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY Attest: By Van G. Tanner, Chair Rachelle D. Klassen, Secretary APPROVED: OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY By Date: Robert A Spiegel, Chair -9- G Vda\Voronica Tapia\Word Fdos\Staff Roporls\Successor Agoncy\Bond Proceed Agreements\Palm Desert SA - CVAG agreement ro use of bond proceeds for I'ortola 1 10 protect 2-20-14 docx