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HomeMy WebLinkAboutOB-025RESOLUTION NO. OB - 025 A RESOLUTION OF THE OVERSIGHT BOARD OF DIRECTORS FOR THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY APPROVING THE SETTLEMENT, RELEASE AND INDEMNITY AGREEMENT AMONG THE COUNTY OF RIVERSIDE, THE CITY OF PALM DESERT AND THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY RECITALS: A. Pursuant to Health and Safety Code Section 34179(3), all actions taken by the Oversight Board for the Successor Agency to the Palm Desert Redevelopment Agency (the "Oversight Board") shall be adopted by resolution. B. There has been presented to this Oversight Board the attached Settlement, Release and Indemnity Agreement among the County of Riverside, the City of Palm Desert, and the Successor Agency to the Palm Desert Redevelopment Agency (Exhibit A). NOW, THEREFORE, THE OVERSIGHT BOARD FOR THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY, HEREBY FINDS, DETERMINES, RESOLVES, AND ORDERS AS FOLLOWS: Section 1. The above recitals are true and correct and are a substantive part of this Resolution. Section 2. The Oversight Board approves the agreement attached hereto as Exhibit A. Section 3. The staff of the Successor Agency is hereby directed to provide the State Department of Finance ("DOF") written notice and information regarding the action taken by the Oversight Board in Section 2 of this Resolution. Such notice and information shall be provided by electronic means and in a manner of DOF's choosing. Section 4. The officers of the Oversight Board and staff of the Successor Agency are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable to effectuate this Resolution. PASSED, APPROVED AND ADOPTED this 3rd day of December, 2012. AYES: NOES: ABSENT: ABSTAIN: ATTEST: BRANDL, BUCK, CARVER, DEAS, REYES, and SPIEGEL NONE LARSON NONE 0")(��/ 1 l ROBERT A. SPIEGEL/ ChNAt AMP OP ft RAC' LL B. KLASSEN, SEC ETARY OVERSIGHT BOARD FOR THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY RESOLUTION NO. OB - 025 EXHIBIT A SETTLEMENT AGREEMENT C:\Usen\pleon\AppDatalLacal\Microsoft\Windows\Temporary Internet Files\Content.OutlookUOUNSVL3\OB Reso - RAP Settlement Agreement v 2 RWG (2) doc RESOLUTION NO. OB-025 EXHIBIT A 1 SETTLEMENT, RELEASE AND INDEMNITY AGREEMENT 2 AMONG THE COUNTY OF RIVERSIDE, 3 THE CITY OF PALM DESERT AND THE 4 SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY 5 This Settlement, Release and Indemnity Agreement (this "Settlement Agreement") is 6 entered into as of the day of , 2012, by and among the County of 7 Riverside (the "County"), the City of Palm Desert (the "City") and the Successor Agency to the 8 Palm Desert Redevelopment Agency (the "Successor Agency") (each a "Party" and collectively the 9 "Parties"). This Settlement Agreement is entered into with reference to the following recited facts: 10 RECITALS: 11 A. Pursuant to the California Health and Safety Code Section 33401, the County, the 12 City and the Palm Desert Redevelopment Agency (the "Former Agency") entered into a pass 13 through agreement pertaining to Former Agency's Project Areas Nos. 1 and 3 effective February 14 13, 1992, entitled "Cooperative Agreement Among the County of Riverside, the City of Palm 15 Desert and the Palm Desert Redevelopment Agency" (the "1992 Cooperative Agreement"). 16 B. Paragraph (a) of Section 11 of the 1992 Cooperative Agreement provides, in 17 pertinent part, as follows: "Each fiscal year, the Agency shall pay to the County for deposit into the 18 Health and Juvenile Services Fund, established pursuant to paragraph (b) below, an amount of Tax 19 Increment for such fiscal year which is equal to the amount of sales taxes paid to the City from 20 sales occurring on the Site." The "Site" is defined specifically in the 1992 Cooperative Agreement 21 to mean property located at the northwest and northeast corners of the intersection of Monterey 22 Avenue and Dinah Shore Drive in Palm Desert, California. 23 C. Paragraph (b) of Section 11 of the 1992 Cooperative Agreement provides, in 24 pertinent part, as follows: "The County Auditor -Controller shall establish and maintain a Health 25 and Juvenile Services Fund for health, mental health, and juvenile services facilities and program 26 needs in the eastern area of the County...." 27 D. Chapter 162 of the Statutes of 2003 (the "Triple Flip Legislation") modified the 28 G:\iHOUSDNG\Petty Leon \JMM\staff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement doe RES. NO. OB-025 EXHIBIT A 1 sales tax rate and distribution of sales tax revenues among the State of California, the County and 2 the City. Prior to the effective date of the Triple Flip Legislation, the State enacted Chapter 2 of the 3 Statutes of 2003, which further modified the sales tax rate of the County and the City. 4 E. The Triple Flip Legislation added California Revenue and Taxation Code Section 5 97.68, which was later amended by Chapter 211 of the Statutes of 2004 to clarify that amounts 6 defined as "in lieu local sales and use tax revenues" ("Triple Flip In Lieu") must be taken into 7 account when calculating tax exchange or revenue sharing arrangements pursuant to tax sharing 8 agreements such as the 1992 Cooperative Agreement. 9 F. Subsequent to passage of the Triple Flip Legislation, in calculating amounts owed to 10 the County pursuant to Section 11 of the 1992 Cooperative Agreement the Agency relied on 11 iterations and interpretations of Section 97.68 that did not recognize the Triple Flip In Lieu was and 12 is to be accounted for in kind as sales and use tax for tax sharing purposes. 13 G. Chapter 5 of the Statutes of 2011 ("ABX 1 26") enacted legislation dissolving 14 redevelopment agencies throughout the State of California and establishing a system whereby a 15 successor agency assumes responsibility for, among other things, assuring that existing enforceable 16 obligations, as defined in ABX1 26, of each redevelopment agency are fulfilled. 17 H. ABX1 26 was upheld by the California Supreme Court in Community 18 Redevelopment Association, et al. v. Matosantos, et al. S 194861, which ruled that February 1, 19 2012, was the effective date for dissolution of redevelopment agencies. 20 I. Pursuant to ABX1 26, on February 1, 2012, the Palm Desert Redevelopment 21 Agency was dissolved and succeeded by the Successor Agency to the Palm Desert Redevelopment 22 Agency. 23 J. Prior to dissolution, the County brought to the attention of the Former Agency that 24 the provisions of Section 97.68(g) specifically provide that Triple Flip In Lieu shall be treated as 25 sales and use tax for tax sharing purposes, and that those provisions were, and continue to be, 26 applicable to the calculation of amounts owed under Section 11 of the 1992 Cooperative 27 Agreement. Prior to dissolution, the Former Agency recognized and acknowledged that the 28 -2- G VIOUSMG\Petty LeonVMM\saff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement doe RES. NO. OB-025 EXHIBIT A 1 provisions of Section 97.68(g) should have been applied to include the Triple Flip In Lieu when the 2 Former Agency calculated amounts owed and due to the County under Section 11 of the 1992 3 Cooperative Agreement and consequently, at the time of the Former Agency's dissolution, the past 4 due amount owed to the County was and is $2,675,800. The Parties acknowledge and agree that the 5 funds due to the County pursuant to this Agreement, but for the error in calculation of the amounts 6 due to the County, would have been paid to the Regional Access Project Foundation, Inc. (the 7 "RAP Foundation"), pursuant to the Agreement between the RAP Foundation and the County. 8 K. The 1992 Cooperative Agreement was an enforceable obligation of the Former 9 Agency in full effect prior to the enactment of ABXI 26, and is therefore an enforceable obligation 10 of the Successor Agency. 11 L. The City has no obligation whatsoever to make any payments under the Cooperative 12 Agreement or under this Settlement Agreement. 13 M. To facilitate and implement the purposes of Section 11 of the Cooperative 14 Agreement, the County entered into an agreement with the RAP Foundation. 15 NOW, THEREFORE, IN CONSIDERATION OF THE MATTERS SET FORTH IN THE 16 RECITALS ABOVE, TO AVOID COSTLY LITIGATION AGAINST THE CITY AND THE 17 SUCCESSOR AGENCY, AND TO RESOLVE ANY AND ALL DISPUTES ARISING FROM 18 OR RELATED TO ANY AND ALL CLAIMS BY THE COUNTY TO RECEIVE PAST DUE 19 PAYMENTS PURSUANT TO SECTION 11 OF THE 1992 COOPERATIVE AGREEMENT, 20 THE COUNTY, THE CITY AND THE SUCCESSOR AGENCY AGREE TO RESOLVE ALL 21 , SAID DISPUTES ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS: 22 Section 1. The above Recitals are true and correct. 23 Section 2. After approval of this Settlement Agreement by the Oversight Board and 24 provided the State Department of Finance has not determined to review or reconsider that 25 Oversight Board action in the time allowed by statute, or if the Department of Finance determines 26 to review or reconsider that Oversight Board action, then upon its final approval thereof, the 27 Successor Agency shall immediately make payment by a warrant made payable to the County of 28 -3- G:\HOUSING\Patty Leon \IMMbtaff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement.doc RES. NO. OB-025 EXHIBIT A 1 Riverside in the amount of $2,675,800.00 ("Settlement Amount") for deposit into the County's 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 woo Health and Juvenile Services Fund. After confirming availability of such receipt deposited, the our County shall immediately thereafter transfer such amount into the RAP Foundation agency fund held in the County Treasury. Section 3. The Settlement Amount shall be paid by the Successor Agency from either the Successor Agency's Redevelopment Obligation Retirement Fund or the Redevelopment Property Tax Trust Fund and from no other source or sources, and shall be attributable to the ROPS I period and the Oversight Board approved ROPS I, pursuant to which the Settlement Amount is included in the "Pass Thru Trust Account Obligations" at page 1, line item 25, and on the "Other Obligation Payment Schedule" at line item 9, showing a "Total Due During Fiscal Year" to the County Juvenile Health Fund of $3,299,421.00, comprised of the Settlement Amount and quarterly payments due in January and May 2012. Section 4. If the State Department of Finance, the State Controller's Office, or the County Auditor -Controller objects to or determines to review or reconsider this Settlement Agreement or any material term thereof, including but not limited to the Settlement Amount, the saw payment terms, or any other aspect of the payment as described in Sections 2 and 3 above, the Successor Agency shall cooperate with the County and take all reasonable steps to cause such determination to be overturned. Section 5. On behalf of itself and its successors, affiliates and assigns, the County hereby releases the City and the Successor Agency, their attorneys, successors, affiliates and assigns ("City and Successor Agency Released Parties") of and from any and all claims, demands, disputes, damages, liabilities, actions, causes of action, and other rights to relief, both legal and equitable, of every kind and nature, whether known or unknown, past or present, which the County has, or may have against the City and Successor Agency Released Parties, or any of them, arising out of or related in any way to any of the claims arising out of or related to the payments under Section 11 of the 1992 Cooperative Agreement, whether or not sued upon by the County. Without negating the generality of the foregoing provisions, the County, on behalf of itself and its -4- GIHOUSING\Patty LeonUMM\staff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement.doc RES. NO. OB-025 EXHIBIT A 1 successors, affiliates and assigns, specifically waives any right it may have in connection with 2 Section 11 of the 1992 Cooperative Agreement to receive any payments for past due amounts, 3 whether from the Successor Agency or as allocations under Health and Safety Code 4 Section 34183(a)(1), and any rights it may have to contest or otherwise challenge the methodology 5 used by the Former Agency to calculate payment amounts to the County pursuant to Section 11 of 6 the 1992 Cooperative Agreement. 7 Section 6. The County hereby unconditionally and irrevocably agrees to indemnify, 8 reimburse, defend, exonerate, pay and hold harmless the City and the Successor Agency and their 9 attorneys, successors, affiliates and assigns ("Indemnified Parties") from and against any and all 10 claims that may be asserted, demands, or actions of any kind or nature that may be incurred by, 11 imposed upon, or asserted against any of the Indemnified Parties arising out of, related to, or in 12 connection with the provisions of this Settlement Agreement or the execution of this Agreement by 13 the City and the Successor Agency. 14 Section 7. The County, on behalf of itself, its successors, affiliates and assigns, and 15 each of them, expressly waives all rights they may have, or claim to have, under the provisions of 16 California Civil Code Section 1542, or the equivalent law of any jurisdiction, which provides in 17 relevant part: 18 "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS 19 THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST 20 , IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE 21 RELEASE, WHICH IF KNOWN BY HIM OR HER MUST 22 HAVE MATERIALLY AFFECTED HIS OR HER 23 SETTLEMENT WITH THE DEBTOR." 24 25 26 27 28 County Initials -5- G \HOUSING\Patty Leon \MM\staff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement.doc RES. N0. OB-025 EXHIBIT A 1 Section 8. The County represents and warrants to the City and to the Successor Agency 2 that the County has not, prior to the date of its execution of this Settlement Agreement filed any 3 action or proceeding, in any court of any jurisdiction that is related in any way to the claims 4 released in this Settlement Agreement. Notwithstanding this representation and warranty, the 5 County agrees to deliver to the City and to the Successor Agency a Request for Dismissal, with 6 prejudice, of any and all such actions against the City, the Successor Agency or the Former 7 Agency, filed before, on or after the date of execution of this Settlement Agreement related to the 8 payment of the past due amounts referenced in this Settlement Agreement, to the extent that any 9 such actions are discovered or disclosed. 10 Section 9. By signature below, each signatory signifies that he or she is an authorized 11 signatory of the Party on behalf of whom he or she executes this Settlement Agreement. 12 Section 10. This Settlement Agreement may be signed in counterparts and the executed 13 counterparts thereof shall together form the executed Settlement Agreement. A copy of fully 14 executed counterpart of this Settlement Agreement, including an electronic or facsimile 15 transmission of a fully executed counterpart, may serve as an original, fully executed counterpart. 16 Section 11. This Settlement Agreement is entered into in the State of California and is 17 governed by the laws of the State of California. 18 Section 12. Except as expressly set forth herein, the Parties agree that neither the 19 execution of this Settlement Agreement nor the terms of the Settlement Agreement shall be 20 construed as an admission of liability by any Party or an admission of any claim against a Party. 21 Section 13. This Settlement Agreement contains the sole and entire agreement and 22 understanding of the Parties with respect to the subject matter of the Settlement Agreement, and 23 any and all prior discussions, negotiations, commitments, or understandings related to this 24 Settlement Agreement, if any, are merged in this Settlement Agreement. No representations, oral or 25 otherwise, expressed or implied, other than those contained in this Settlement Agreement, have 26 been or shall be deemed to have been made by any Party. No other agreement shall be deemed to 27 exist or to bind the Parties with respect to the subject matter of this Settlement Agreement. 28 -6- GAHOUSING\Patty LeonVMMVtaff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement.doc RES. NO. OB-025 EXHIBIT A 1 Section 14. The Parties shall each bear their own attorneys' fees and related expenses 2 incurred with reference to the discussion, negotiation and finalizing of this Settlement Agreement. 3 Section 15. No provision of this Settlement Agreement may be amended except by a 4 writing executed by each Party. 5 Section 16. The County represents and warrants that, except as set forth in the County's 6 Agreement with the RAP Foundation, it has not previously assigned, transferred, deeded or 7 conveyed any of its interest in the 1992 Cooperative Agreement to any other person or entity. 8 Section 17. This Settlement Agreement shall not be effective until the County has 9 actually received the total due in the amount of $2,675,800 and such amount is deposited into the 10 County Health and Juvenile Services Fund and is readily available to the County. In the event such 11 transaction fails or the funds do not become available to the County, this Agreement shall be null 12 and void. 13 IN WITNESS WHEREOF, the parties have executed this Settlement Agreement as of the 14 date and year first written above. 15 ATTEST: COUNTY OF RIVERSIDE 16 17 Kecia Harper-Ihem John Tavaglione, Chairman, Clerk of the Board Board of Supervisors 18 19 20 ATTEST: CITY OF PALM DESERT 21 22 Rachelle D. Klassen, City Clerk Robert A. Spiegel, Mayor 23 24 ATTEST: SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY 25 26 Rachelle D. Klassen, Secretary Robert A. Spiegel, Chair 27 28 -7- G VIOUSMG\Patty Leon UMM\staff report\OVERSIGHT BOARD\RAP Settlement Agreement\Revised County of Riverside - Settlement Agreement doc RES. NO. OB-025 EXHIBIT A ATTEST: OVERSIGHT BOARD OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY Rachelle D. Klassen Robert A. Spiegel -8- G.ULOUSINGWatty L.eonUMM\staff report\OVERSIGHT BOARD\RAP Settlement Agreement\ Revised County of Riverside - Settlement Agreement.doc