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HomeMy WebLinkAboutSA-RDA 040RESOLUTION NO, SA -RDA 040 A RESOLUTION OF THE SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY (SUCCESSOR AGENCY) APPROVING A DISPOSTION AND DEVELOPMENT AGREEMENT BETWEEN SUCCESSOR AGENCY AND THE TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY (CSU) ALLOWING THE CONVEYANCE OF APPROXIMATELY 113 ACRES OF SUCCESSOR AGENCY PROPERTY KNOWN AS A.P.N. 694-200-001 AND PORTION OF 694-160-003 TO CSU PURSUANT TO THE LONG RANGE PROPERTY MANAMGEMENT PLAN RECITALS: A. On May 5, 2014, Oversight Board of the Successor Agency to the Palm Desert Redevelopment Agency took action to approve the Successor Agency's Long Range Property Management Plan. On June 2, 2014, the State Department of Finance approved the LRPMP. The approved LRPMP allows the conveyance of up to 126.32 acres of property referenced as Properties 10(a), 10(b) of the LRPMP to CSU. Pursuant to the attached Disposition and Development Agreement (DDA), there has been presented to this Successor Agency Board for approval of the DDA and the conveyance of real property approximately 113 acres to the Trustees of the California State University for the expansion of educational programs at the CSU-Palm Desert Campus. NOW, THEREFORE, 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 Successor Agency hereby adopts Resolution No. SA -RDA 040 approving the attached DDA and the transfer of 113 acres to the Trustees of the California State University as public use land pursuant to the Successor Agency's approved LRPMP. The DDA is made a part hereof and attached hereto as "Exhibit `A;". Section 3. The officers of the Successor Agency 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 subject to approval by the State Department of Finance. RESOLUTION NO. SA -RDA 040 PASSED, APPROVED AND ADOPTED this Bch day of AYES: HARNIK, JONATHAN, SPIEGEL, TANNER, and WEBER NOES: NONE ABSENT: NONE ABSTAIN: NONE ATTEST: 41117APJOItillus RA LE D. KLASSPN, SECRETARY SUCCESSOR AGENCY TO THE JJJ PALM DESERT REDEVELOPMENT AGENCY January ,2015. Susan Marie Weber, Chair 2 RESOLUTION NO. SA -RDA 040 EXHIBIT A SUCCESSOR AGENCY TO THE PALM DESERT REDEVELOPMENT AGENCY • DISPOSITION AND DEVELOPMENT AGREEMENT • FORM OF GRANT DEED RESOLUTION NO. SA -RDA 040 [This page has intentionally been left blank.] RESOLUTION NO. SA -RDA 040 DISPOSITION AND DEVELOPMENT AGREEMENT AND ESCROW INSTRUCTIONS REGARDING PALM DESERT RESERVE PROPERTY This DISPOSITION AND DEVELOPMENT AGREEMENT ("Reserve Property DDA") is entered into on , 2015, by and between the SUCCESSOR AGENCY TO THE PALM DESERT DEVELOPMENT AGENCY, a public body, corporate and politic ("Agency") and THE TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, an agency of the State of California ("CSU"). RECITALS A. Agency is the duly authorized successor to the Palm Desert Development Agency, a public body exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California. B. CSU is an arm of the State of California and is governed by its Board of Trustees. It receives it authority from the California Education Code. C. CSU's primary mission is offering undergraduate and graduate instruction through the master's degree in the liberal arts and sciences and professional education, including teacher education as stated in Section 66010.4(b) of the California Education Code. Regional access for students to this instruction is an integral part of CSU's mission. D. Agency and CSU are parties to that certain DISPOSITION AND DEVELOPMENT AGREEMENT dated November 16, 1999 ("Agreement") with respect to certain real property located within the City of Palm Desert, County of Riverside, State of California. The Agreement provided for the conveyance of approximately 40 acres of certain real property owned by the Agency to CSU for educational purposes. The Agreement also provided that CSU may request an increase in the size of the subject real property and reserved approximately 160 acres of real property adjacent to the real property conveyed by the Agency to CSU for use by CSU in future expansion. ("Reserve Property"). E. Agency and CSU amended the Agreement by entering into a FIRST AMENDMENT TO DISPOSITION AND DEVELOPMENT AGREEMENT dated March 22, 2001 ("First Amendment"). The First Amendment documented a modification of the size of the real property conveyed by Agency to CSU pursuant to the Agreement by increasing the conveyed real property to approximately 55 acres and reducing the Reserved Property to approximately 145 acres. The First Amendment also released its option rights on 20 acres of the Reserve Property for the purposes of development by UCR, resulting in a reduction of the size of the Reserve Property to approximately 125 acres. F. Pursuant to the terms of the Agreement and First Amendment, CSU has developed the real property adjacent to the Reserve Property previously convey by Agency to Page 1 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD ODA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 CSU and continues to operate post -secondary educational programs on such property in accordance with its mission. G. On or about July 28, 2008, CSU agreed to release its option rights on an additional approximately 3 acres of the Reserve Property in order to permit the construction of a fire station on such property by the City of Palm Desert ("Fire Station Parcel"). H. Agency's Long Range Property Management Plan, approved by the California Department of Finance on June 2, 2014, authorizes conveyance of the Reserve Property to CSU for government use. I. Agency seeks to accommodate the expansion of CSU's presence and operation of post -secondary educational programs in the City of Palm Desert, thereby assisting in the elimination of blight, providing additional jobs, and substantially improving the economic and physical conditions in accordance with the purposes and goals of the Redevelopment Plan. J. The Agency and CSU desire to enter into this Reserve Property DDA in order to establish commitments for the development of public uses related to the development of the Reserve Property by CSU. The Agency recognizes the benefit to the region and its citizens of having CSU acquire and develop the Reserve Property. CSU recognizes that it is in the best interests of the state and its citizens to develop the Reserve Property for purposes of its higher education mission. K. The City and the Agency served as co -lead agencies for the Environmental Impact Report ("the EIR") on the proposed uses of certain real property, including the Reserve Property. The City and Agency duly considered and certified the EIR as completed on Apri 122, 1999. L. The Agency has completed the report previously required by California Health and Safety Code Section 33433. M. The Agency and the City held the public hearings previously required by California Health and Safety Code Sections 33433 on October 14, 1999. N. Agency now desires to convey to CSU the Reserve Property. O. CSU has determined that accepting the Agency's conveyance of the Reserve Property will aid in carrying out the primary mission and functions of the CSU as specified in Section 66010.4(b) of the California Education Code. Page 2 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 AGREEMENT NOW, in consideration of the above recitals, the mutual covenants contained in this Reserve Property DDA, and for other good and valuable consideration, the parties agree as follows: ARTICLE 1. DEFINITIONS. The following terms as under in this DDA shall have the meanings given unless expressly provides to the contrary: 1.1. Agency means the Successor Agency to the Palm Desert Redevelopment Agency, a California public body, corporate and politic, exercising governmental functions and powers and organized and existing under the Community Redevelopment Law of the State of California. 1.2. Agreement means the Disposition and Development Agreement between the Palm Desert Development Agency and the Trustees of the California State University dated November 16, 1999. 1.3. City means the City of Palm Desert, a municipal corporation acting in its capacity as a California chartered city. 1.4. City Council means the City Council of the City of Palm Desert. 1.5. Close of Escrow is as defined in Section 2.9. 1.6. CSU means the Trustees of the California State University, an arm of the State of California. 1.7. DDA means this DISPOSITION AND DEVELOPMENT AGREEMENT REGARDING PALM DESERT RESERVE PROPERTY. 1.8. Escrow Holder means a licensed escrow company mutually selected by the Agency and CSU. 1.9. Hazardous Materials means any chemical, material or substance now or hereafter defined as or included in the definition of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous waste," "restricted hazardous waste," "toxic substances;" "pollutant or contaminant," "imminently hazardous chemical substance or mixture," "hazardous air pollutant," "toxic pollutant," or words of similar import under any local, state or federal law or under the regulations adopted or publications promulgated pursuant thereto applicable to the Site, including, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601,et seq. ("CERCLA"); the Hazardous Materials Transportation Act, as amended, 49 U.S.C.§1801, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq. The term "Hazardous Materials" shall also include any of the following: any and all toxic or hazardous substances, materials or wastes listed in the United States Page 3 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Department of Transportation Table (49 C F R 172.101) or by the Environmental Protection Agency as hazardous substances (40 CFR Part 302) and in any and all amendments thereto in effect as of the date of the close of any escrow; oil, petroleum, petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive (including any source, special nuclear or by-product material as defined at 42 U.S.C. § 2011, et seq.), carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyl's; radon gas; or any other chemical, material or substance (i) which poses a hazard to the Site, to adjacent properties, or to persons on or about the Site, (ii) which causes the Site to be in violation of any of the aforementioned laws or regulations, or (iii) the presence of which on or in the Site requires investigation, reporting or remediation under any such laws or regulations. 1.10. Improvements means any and all buildings, landscaping, infrastructure, utilities, and other improvements to be built on the Reserve Property, or any part of it. 1.11. Opening of Escrow means the date upon which Escrow Holder receives a fully executed copy of this DDA pursuant to Section 2.4. 1.12. Reserve Pronertt means certain real property composed of approximately 113 acres as approximately depicted and described in Exhibit A, attached hereto and incorporated herein by reference, which is contemplated to be developed by CSU. City will provide an exact legal description for inclusion as an exhibit to the Grant Deed prior to closing. 1.13. Reserve Property Master Plan means a planning process to be undertaken by CSU after conveyance of the Reserve Property for the purpose of determining short and long term land uses to occur on the Reserve Property. ARTICLE 2. PURCHASE AND SALE OF RESERVE PROPERTY Section 2.1 Transfer of the Reserve Property. Subject to and in accordance with the terms and conditions set forth in this DDA, the Agency agrees to transfer to CSU, and CSU agrees to accept from the Agency, fee simple title to the Reserve Property, including all water, mineral, oil, gas, and geothermal rights to said parcel, and including the right to extract the same from said parcel, to the extent such mineral rights are owned by the Agency. The parties shall cooperate with each other to develop a mutually acceptable legal description of the Reserve Property prior to the date it is transferred by Agency to CSU. Page 4 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Section 2.2 Purchase Price. The purchase price for the Reserve Property to be paid by CSU shall be the sum of $0. Section 2.3 Condition of the Reserve Prooertv. 2.3.1 Prior to and during the escrow period, CSU is granted permission to enter onto the Reserve Property for the purpose of inspecting the Reserve Property, including testing the soil. CSU shall indemnify, hold harmless, and defend the Agency against and hold the Agency and the City harmless from, all losses, costs, damages, liabilities, liens, and expenses, including, without limitation, reasonable attorneys' fees, arising out of such entry and activities by CSU and its agents, employees, or contractors, prior to the Close of Escrow, except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the gross negligence or willful acts of the Agency and/or the City. At any time during its inspection of the Reserve Property, but within 55 calendar days of the Opening of Escrow, CSU shall approve or disapprove of the condition of the Reserve Property. If CSU disapproves the condition o f the Reserve Property, this DDA and the Escrow shall terminate. CSU shall provide to the Agency its approval or disapproval in writing. 2.3.2 The Agency shall convey the Reserve Property to CSU in an "as is" "where is" condition, without any warranty whatsoever to CSU as to the condition of any portion of the Reserve Property, including whether the Reserve Property contains any Hazardous Materials. CSU shall rely upon its own inspection of the Reserve Property and CSU's own determination as to whether the physical condition of the Reserve Property shall be suitable for CSU's purposes. CSU acknowledges and agrees that: 2.3.2.1 The Agency has made no representation or warranty with respect to the Reserve Property except for those representations and warranties contained in this DDA, and that prior to the Close of the Escrow, the Agency will make no representations and warranties with respect to the Reserve Property, other than those contained in this DDA. 2.3.2.2 CSU is acquiring the Reserve Property with the ultimate objective of constructing improvements on the Reserve Property. 2.3.2.3 CSU's decision to acquire the Reserve Property shall be based on the results of CSU's analysis and the reports it shall obtain prior to the Close of Escrow. 2.3.2.4 The Agency has made no representation or warranty as to the accuracy or completeness of any reports and other materials prepared by any persons, and CSU is not relying on the accuracy and completeness of any reports and other materials prepared by persons other than CSU, its agents, or contractors. 2.3.2.5 Except as specifically provided in this DDA, the Agency has made no representation or warranty with respect to the use, fitness for a particular reason, zoning, value, improvements, square footages or any other condition of the Reserve Property. Page 5 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Except for the Agency's representations, warranties and covenants contained in this DDA, CSU is acquiring the Reserve Property in "AS -IS," "WHERE -IS" condition "WITH ALL FAULTS." CSU agrees that the Agency has no obligation to remedy any faults, defects, or other adverse conditions described in any report or other material obtained by CSU or delivered by the Agency to CSU, including the remediation of any Hazardous Material on the Reserve Property. Section 2.4 Onenine of Escrow. Within 10 days after CSU's approval of this DDA, the parties shall cause escrow to be opened with Escrow Holder for the transfer of the Reserve Property by the Agency to CSU. The Agency and CSU shall deposit with Escrow Holder a fully executed duplicated original of this DDA, which shall serve as escrow instructions. The parties shall provide such additional escrow instructions as shall be necessary and consistent with this DDA. Escrow Holder is authorized to act under this DDA and to carry out its duties as Escrow Holder. Section 2.5 Condition of Title: Title Insurance. 2.5.1 Promptly following the execution of this DDA by both Parties, CSU shall order a title report from a title company for delivery to CSU and to the Agency at CSU's expense setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting the Agency's title to the Reserve Property, together with copies of all documents relating to title exceptions referred to in the Preliminary Report (collectively, the "the Reserve Property Preliminary Report.") CSU shall approve or disapprove each exception shown on the Reserve Property Preliminary Report within 55 calendar days following the receipt of the Reserve Property Preliminary Report. Notwithstanding the foregoing, the Agency shall be under no obligation to remove any encumbrance to title, but the Agency agrees to cooperate in good faith with CSU in CSU's efforts to eliminate any encumbrance to title, provided the Agency is not obligated to pay any sums to the holder of such encumbrance to obtain the release of such matters. 2.5.2 Subject to the terms of Section 2.5.1 above, CSU shall approve or disapprove each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title to the Reserve Property or that violates any law, rule, or regulation reflected on the Survey (each an "Exception") within 30 days after receiving said ALTA Survey or after the Opening of the Escrow, whichever is later. Any such Exception that CSU disapproves is termed a "Disapproved Exception." If CSU is unable to obtain a discharge, satisfaction, release, or termination of a Disapproved Exception, or if the Agency does not elect to do so, then CSU shall have the right, within 60 days of the Opening of Escrow, to do one of the following: 2.5.2.1 Waive the Disapproved Exception and proceed with closing the escrow, accepting title to the Site subject to the Disapproved Exception; or 2.5.2.2 Terminate this DDA, in which event both CSU and the Agency shall be relieved of all further obligation and liability to each other under this DDA and Page 6 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-1S.docx RESOLUTION NO. SA -RDA 040 all the funds and documents deposited with Escrow Holder shall be promptly refunded or returned, as the case may be, by Escrow Holder to the depositing party, less reasonable escrow cancellation fees; or 2.5.2.3 Request from Agency an extension of time to do further investigation prior to making a decision, which request shall not be unreasonably withheld by Agency. 2.5.3 Upon satisfaction of the conditions to convey title to the Reserve Property, the Agency shall convey title of the Reserve Property to CSU by Grant Deed. Title to the Reserve Property shall be conveyed subject to (i) all title exceptions affecting the Reserve Property shown on the Preliminary Title Report for the Reserve Property approved by CSU, (ii) the covenants, conditions and restrictions benefiting and burdening the Reserve Property as described in this DDA, and (iii) any other matters which arise out of the actions of CSU or its agents and representatives ("Permitted Exceptions") but including all water, mineral, oil, gas, and geothermal rights to the Reserve Property, including the right to extract the same from the Reserve Property held by the Agency, if any. The Agency shall use reasonable efforts to cause any disapproved exceptions to be removed by the Close of Escrow (so long as such exception may be removed without the Agency being obligated to pay any sums to the holder thereof), but if the Agency is unable to remove any disapproved non -monetary title exceptions, then the Agency shall not be in breach of this DDA but CSU shall have the right to terminate this DDA. 2.5.4 At the Close of Escrow, CSU may, at CSU's sole cost and expense, purchase a CLTA or an ALTA Owner's Standard Coverage Policy of Title Insurance, issued by the Title Company, in favor of CSU, insuring that title is vested in CSU free and clear of all liens, easements, covenants, conditions, restrictions, and other encumbrances of record, other than the Permitted Exceptions for the Reserve Property. CSU may obtain one or more extended coverage policies of title insurance or special endorsements at its own cost. Section 2.6 Escrow Charges. CSU shall be responsible for paying (i) all Escrow charges, and (ii) all recording fees, documentary and local transfer taxes that are legally applicable to a transaction wherein CSU is the transferee. Section 2.7 Conditions to Close of Escrow. The obligations of the Agency and CSU under this DDA to close the escrow for the conveyance of the Reserve Property shall be subject to the satisfaction or waiver of each of the following conditions: 2.7.1 Agency's Oversight Board has approved this DDA and/or the conveyance of the Reserve Property, and the California Department of Finance has approved this DDA and/or the conveyance of the Reserve Property. 2.7.2 CSU's (a) Chancellor or (b) Board of Trustees, shall each have approved the transaction contemplated by this DDA and the acquisition of the Reserve Property. 2.7.3 The representations and warranties of the Agency and CSU contained in this DDA shall be true and correct as of the Close of Escrow. Page 7 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 2.7.4 The Agency shall have delivered all documents required to be delivered by the Agency pursuant to Section 2.8 of this DDA. 2.7.5 The Title Company shall have issued a commitment to issue a Policy of Title Insurance, as required herein, on the Close of Escrow, subject only to the Permitted Exceptions on the Reserve Property, with liability equal to such sum as requested by CSU, showing the Reserve Property vested in CSU. If the foregoing conditions are not satisfied, and Escrow has not closed, by April 30, 2015 then either the Agency or CSU shall have the right to terminate this DDA subject to parties' ability to extend the closing date by mutual agreement as discussed in Section 2.9. Section 2.8 Deposit into Escrow. The Agency agrees to deliver to Escrow Holder prior to the Close of Escrow, the following instruments and documents, the delivery of each of that shall be a condition of the Close of the Escrow: 2.8.1 A Grant Deed, duly executed and acknowledged by the Agency, conveying a fee simple interest in the Reserve Property to CSU, subject to the restrictions specified in Sections 3.1 through 3.5. 2.8.2 The Agency's affidavit as contemplated by California Revenue and Taxation Code §18662 ("Withholding Affidavit"); 2.8.3 A Certification of Non -Foreign Status in accordance with I.R.C. Section 1445 ("FIRPTA Certificate"); and 2.8.4 Such proof of the Agency's authority and authorization to enter into this transaction as the Title Company may reasonably require in order to issue CSU's policy of title insurance for the Reserve Property. Section 2.9 Escrow's Closing Actions. The recordation of the Grant Deed conveying the Reserve Property to CSU shall constitute the Close of Escrow. Escrow shall close within 60 days after Department of Finance approval, unless an extension of time is mutually agreed to. Escrow Holder shall take the following actions to effectuate and finalize the Close of Escrow: 2.9.1 Record the Grant Deed (marked for return to CSU) with the Riverside County Recorder; 2.9.2 Obtain conformed copies of all instruments so records, bearing the County Record's file marks, and deliver a copy of the same to both the Agency and CSU; 2.9.3 Issue the Title Policy to CSU, or cause the Title Company to issue the Title Policy, with CSU as the insured; 2.9.4 If applicable, prorate any taxes, assessments, rents, and other charges, if any, as of the Close of Escrow, if and to the extent CSU shall be liable for payment of such matters after the Close of Escrow; Page 8 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 2.9.5 Charge CSU for those costs and expenses to be paid by CSU under the terms of the Escrow and disburse any net funds remaining after such disbursements to CSU; 2.9.6 Prepare and deliver to both CSU and the Agency one signed copy of Escrow Holder's closing statement showing all receipts and disbursements of Escrow; and 2.9.7 Deliver to CSU a FIRPT'A Certificate and Withholding Affidavit. Section 2.10 Additional Provisions. The Agency and CSU may execute additional appropriate escrow instructions if necessary as prepared by the Escrow Holder, which are consistent with this DDA. If there is any inconsistency between the terms of this DDA and the terms of the additional escrow instructions, the terms of this DDA shall control unless an intent to amend the terms of this DDA is expressly stated in such instructions. Any amendment of these escrow instructions shall be in writing and signed by both the Agency and CSU. At the time of any amendment, Escrow Holder shall agree to carry out its duties as escrow holder under such amendment. Escrow Holder is instructed to send copies of notices, demands and communications between the Agency and CSU to or from the Agency or to or from CSU, to both parties to the addresses and in the manner established in Section 6.1 of this DDA. ARTICLE 3. USE, MAINTENANCE, AND NON-DISCRIMINATION OBLIGATIONS. Section 3.1 Use of Reserve Pronertv. CSU agrees that it shall use the Reserve Property only for educational purposes as part of CSU mission, and for no other purpose whatsoever, except as provided in this DDA. Notwithstanding the foregoing, CSU may lease or license the operation of retail, commercial, restaurant and service uses as defined by CSU's mission and Education Code 89046 that are incidental to and directly supportive of CSU's post -secondary education operations, as applicable, and to the extent that are customarily associated with similar universities. Such permitted uses include, but are not limited to, a student union, university related housing, bookstore, and food concessionaires and/or restaurants. Section 3.2 Name. CSU agrees (i) that the words "Palm Desert" shall be included, in perpetuity, in the name of the CSU post -secondary education operations upon the Reserve Property, and (ii) if a separate campus of the CSU is built upon the Reserve Property, that the name of the CSU Campus shall be "California State University, Palm Desert,". Section 3.3 Restrictions on Transfer of Reserve Property. Except as provided in Section 3.1, CSU shall not convey, sell, encumber, hypothecate, lease or otherwise transfer (collectively, "Transfer") the Reserve Property or any portion thereof, or this DDA, or any interest therein, without the prior written consent of the City, which consent may or may not be given in the sole and absolute discretion of the City. Except as specifically permitted in Section 3.1 and Section 89046 of the California Education Code, CSU shall comply with the provisions of Sections 89720 and 89720.5 of the California Education Code. Section 3.4 Obligations to Refrain from Discrimination. CSU covenants and agrees for itself and its successors and assigns, and for every successor in interest to the Reserve Property, or any part thereof, and to its rights under this DDA, that there shall be no discrimination against or Page 9 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 segregation of any person, or group of persons, on account of sex, marital status, age, handicap, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Reserve Property, and CSU shall not 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, subleases, or vendors of any portion of the Reserve Property or the whole. Section 3.5 Form of Nondiscrimination and Non-Seeregation Clauses. CSU shall refrain from restricting the rental, sale or lease of the Reserve Property or any portion thereof, on the basis of sex, age, handicap, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or non -segregation clauses: 1. In deeds: "The grantee herein covenants by and for himself, his 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 sex, marital status, race, age, handicaps color, religion, creed, 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 any person claiming under or through him, 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, subleases or vendors in the land herein conveyed. The foregoing covenants shall run with the land." 2. In leases: "The lessee herein covenants by and for himself, his heirs, executors, administrators and assigns, and all persons claiming under or through him, and this lease is made and accepted upon and subject to the following conditions: 'That there shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, age, handicap, color, religion, creed, national origin or ancestry, in the leasing, subleasing, transferring, use, or enjoyment of the land herein leased, nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, sublessees, subtenants or vendees in the land herein leased'." 3. In contracts relating to the sale or transfer of the Reserve Property, or any interest therein: "There shall be no discrimination against or segregation of any person or group of persons on account of sex, marital status, race, age, handicap, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee himself or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy, of tenants, lessees, subtenants, sublessees or vendees of the land." Page 10 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Section 3.6 Restrictive Covenants. CSU agrees that the covenants and restrictions set forth in Sections 3.1 through 3.5 shall burden the Reserve Property and shall run with the land for the benefit of the Agency and its successors and assigns, and that the same shall remain in effect in perpetuity, unless otherwise specifically set forth in connection with the such covenants and restrictions. The Agency, the City and their successors -in -interest may obtain by appropriate legal action specific performance of these covenants and restrictions and injunctive relief prohibiting the breach of such covenants and restrictions. The Grant Deed regarding the Reserve Property shall set forth the restrictive covenant as required by Sections 3.1 through 3.5, above, restricting and burdening the Reserve Property as set forth in this Article. Such restrictive covenants shall be in a form and in substance that shall be subject to the approval of CSU and the Agency; shall provide that the restrictive covenants shall remain in effect in perpetuity (unless stated otherwise within the specific terms set out above); and shall provide that the restrictive covenant shall be enforceable by the Agency, the City and their successors -in -interest by appropriate legal action for specific performance of their covenants and restrictions and for injunctive relief prohibiting the breach of their covenants and restrictions. Section 3.8. Development of Site. a. CSU will provide the City with the opportunity to review and comment on any proposed change in access points from the Reserve Property to the City of Palm Desert right of way. The City will have 60 days upon receipt of proposed change to provide comments in writing to the CSU. Construction related to new access within the City of Palm Desert right of way will require written consent of the Director of Public Works; such consent shall not be unreasonably withheld or delayed. b. CSU will provide the City with the opportunity to review and comment on schematic design plans (including landscape plans) for new major capital facilities, and signage along major arterial streets, for the Reserve Property. The City will have 60 days upon receipt of the concept plans to provide comments in writing to the CSU. c. CSU is committed to sustainable landscaping, where appropriate, for the Reserve Property. It is intended for landscape plans to be sensitive to local water conservation efforts. Section 3.9: Hieher Educational Opportunities. CSU will continue to work cooperatively with all regional educational partners to advance higher learning opportunities for the Coachella Valley. CSU acknowledges that it has received the Reserve Property as a gift from the citizens of the City of Palm Desert intended to augment higher educational opportunities for the residents of the City, the Coachella Valley and the State of California. ARTICLE 4. EVENTS OF DEFAULT; REMEDIES AND TERMINATION. Section 4.1 Defaults - Definition. The occurrence of any or all of the following shall constitute a default ("Event of default") under this DDA: Page 11 of 18 G:\Eton Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-1S.docx RESOLUTION NO. SA -RDA 040 4.1.1 A breach of any material term of this DDA by any Party not involving the payment of money, and failure of such Party to cure such breach within the time period stated, or if no cure period is stated, then within thirty (30) days after the non -defaulting Party has given written notice to the defaulting Party; provided, however, if such breach is not reasonably curable within such thirty (30) day period, then such Party shall be deemed in Default only if such Party does not commence to cure such breach within such thirty (30) day period and thereafter fails to diligently pursue a cure of such breach to completion unless the provision breached provides otherwise; 4.1.2 The Agency's failure or refusal to provide any requested approvals without good faith, legitimate reason which could cause CSU to be deemed in breach of this DDA or default or threat thereof; 4.1.3 Any breach of this DDA by any Party involving the payment of money, and the continuance of such breach for a period of thirty (30) days after the non -defaulting Party has given written notice to the defaulting Party, as specified in Section 6.1. Section 4.2 Remedies in the Event of Default. In the event of a Default by any Party, the non-- defaulting Party shall have the right to terminate this DDA by delivering written notice thereof to the defaulting Party and to Escrow Holder, subject to the rights of the defaulting Party to cure such Default as provided above. Such Party may also seek against the defaulting Party any available remedies at law or equity, including but not limited to, the right to receive damages or to pursue an action for specific performance. Section 4.3 No Personal Liability. No representative, agent, attorney, consultant, or employee of the Agency shall personally be liable to CSU or any successor in interest of CSU, in the event of any Default or breach by the Agency, or for any amount which may become due to CSU or any successor in interest, on any obligation under the terms of this DDA. No representative, agent, attorney, consultant, or employee of CSU shall personally be liable to the Agency or any successor in interest of the Agency, in the event of any Default or breach by CSU, or for any amount which may become due to the Agency or any successor in interest, on any obligation under the terms of this DDA. Section 4.4 R ghts and Remedies are Cumulative. The rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the non -defaulting Party. Section 4.5 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such Party of its Page 12 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. The acceptance by a Party of less than the full performance from the other Party shall not constitute a waiver of such Party's right to demand and receive the full amount due, unless such Party executes a specific accord and satisfaction. ARTICLE 5. INDEMNITY Section 5.1 CSU's Indemnity. From and after the date of recordation of a grant deed to CSU with respect to of the Reserve Property, CSU shall indemnify, defend, protect, and hold harmless the Agency and the City, and their agents, employees, attorneys, and representatives, from and against all losses, liabilities, claims, damages, costs and expenses (including all reasonable out-of-pocket litigation costs and reasonable attorney's fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with: (i) The development of or Improvements on Reserve Property or the use, ownership, management, occupancy, or possession of the Reserve Property, (ii) Any of CSU's activities on of the Reserve Property (or the activities of CSU agents, employees, lessees, representatives, licensees, guests, invitees, contractors, subcontractors, or independent contractors on of the Reserve Property), except to the extent such losses or liabilities are caused by the negligence or conduct of the Agency or the City or its agents or contractors. CSU shall defend, at CSU's expense, including attorneys' fees and, costs, the Agency and the City, and the Agency's and the City's council members, board members, officers, employees, agents, attorneys, and consultants, in any legal action or threatened legal action (including arbitrations and mediations) based upon such alleged acts or omissions. The Agency and the City may in their discretion participate in the defense of any such legal action. Section 5.2 Agency's Indemnity. The Agency shall indemnify, defend, protect, and hold harmless CSU, and its agents, employees, attorneys, and representatives, from and against all losses, liabilities, claims, damages, costs and expenses (including all reasonable out-of-pocket litigation costs and reasonable attorney's fees) and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with of the Reserve Property with respect to matters occurring on the Reserve Property prior to the recordation of the grant deed transferring the Reserve Property to CSU, except to the extent such losses or liabilities are caused by the negligence or conduct of CSU or its agents or contractors. The Agency shall defend at the Agency's expense, including attorneys' fees and costs, CSU and CSU's board members, officers, employees, agents, attorneys, and consultants, in any legal action or threatened legal action (including arbitrations and mediations) based upon such alleged negligence. CSU may in its discretion participate in the defense of any such legal action. Page 13 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 ARTICLE 6. GENERAL PROVISIONS Section 6.1 Notices. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by personal delivery. Notices shall be considered given upon the earlier of (a) personal delivery or (b) 2 business days following after deposit or delivery shown on the return receipt in the United States mail, postage prepaid, certified or registered, return receipt requested. A copy of all notices shall be sent to Escrow Holder. Notices shall be addressed as provided below for the respective Party; provided that if any Party gives notice in writing of a change of name or address, notices to such Party shall thereafter be given as demanded in that notice: The Agency: Successor Agency to the Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, CA 92660 Attn.: Executive Director Facsimile: 760-341-6372 With a Copy to: Best Best & Krieger LLP 74-760 Highway 111, Suite 200 Indian Wells, CA 92210 Facsimile: 760-340-6698 Attn.: David Erwin CSU: With a copy to: Dr. Douglas Freer Vice President for Administration & Finance California State University, San Bernardino 5500 University Parkway San Bernardino, California 92407 Telephone: 909-537-5130 Facsimile: 909-537-7032 Dr. Steven Lohr Chief of Land Use Planning & Environmental Review California State University Office of the Chancellor 401 Golden Shore, 2nd Floor Long Beach, California 90802-4210 Telephone: 562-951-4120 Facsimile: 562-951-4924 Page 14 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Section 6.2 Construction. The Parties agree that each Party and its counsel have reviewed and revised this DDA and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this DDA or any amendments or exhibits. This DDA shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. Section 6.3 Force Maieure. Notwithstanding anything to the contrary in this DDA, a party 's nonperformance shall be excused when performance is prevented or delayed by reason of any of the following forces reasonably beyond the control of such party: (i) war, insurrection, riot, flood, severe weather, earthquake, fire, casualty, acts of public enemy, governmental restriction, litigation, acts or failures to act of any governmental agency or entity, including the Agency, or (ii) inability to secure necessary labor, materials or tools, strikes, lockouts, delays of any contractor, subcontractor or supplier. In the event of an occurrence described in clauses (i) and (ii) above, such nonperformance shall be excused and the time of performance shall be extended by the number of days the matters described in clauses (i) and (ii) above prevent or delay performance. Section 6.4 Interpretation In this DDA, the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words "person" and "party" include corporation, partnership, governmental entity, firm, trust, or association wherever the context so requires. Section 6.5 Time of the Essence. Time is of the essence of this DDA. Section 6.6 Warranty Aeainst Payment of Consideration for DDAA. CSU, the Agency and the City, warrant that they have not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this DDA, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. Section 6.7 Entire Aereement; Waivers and Amendments. This DDA may be executed in duplicate originals. Escrow Holder may accept escrow instructions in counterparts. This DDA, together with all attachments, exhibits, and other agreements executed pursuant to the terms of this DDA, constitutes the entire understanding and agreement of the Parties. This DDA integrates all of the terms and conditions mentioned or incidental to this DDA, and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter of this DDA. No subsequent agreement, representation or promise made by either Party, or by or to any employee, officer, agent or representative of either Party, shall be of any effect unless it is in writing and executed by the Party to be bound. No person is authorized to make, and by execution of this DDA CSU and the Agency acknowledge that no person has made, any representation, warranty, guaranty or promise except as specifically set forth in this DDA; and no agreement, statement, representation or promise made by any such person which is not contained in this DDA shall be valid or binding on CSU or the Agency. Page 15 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 Section 6.8 Severabilitv. Each and every provision of this DDA is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this DDA or its application shall to any extent be held to be invalid or unenforceable, the remainder of this DDA, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected, and each term and provision of this DDA shall be valid and shall be enforced to the extent permitted by law. Section 6.9 Headings. All section headings and subheadings are inserted for convenience only and shall have no effect on the construction or interpretation of this DDA. The references to "Section" shall refer to the sections of this DDA unless it is clear from the context that another meaning is intended. Section 6.10 No Third Party Beneficiaries other than the City. The parties specifically acknowledge that the City is intended to be a third party beneficiary of this DDA with the right to enforce the terms thereof. This DDA is made and entered into for the sole protection and benefit of the Agency and CSU, the City and their successors and assigns. No other person, including individual residents of City, shall have any right of action based upon any provision of this DDA. Section 6.11 Governing Law: Jurisdiction: Service of Process. This DDA and the rights of the Parties shall be governed by California law. The Parties consent to the exclusive jurisdiction of the California Superior Court for the County of Riverside. If any legal action is commenced by CSU against the Agency, or by Agency against CSU, service of process on the Agency shall be made by personal service upon the executive director or secretary of the Agency, or in such other manner as may be provided by law. If any legal action is commenced by Agency against CSU, service of process on CSU shall be made by personal service on the President of the Board of Trustees of CSU, or in such other manner as may be provided by law. CSU agrees, for the benefit of the Agency, that it shall designate an agent for service of process in the State of California in the manner prescribed by law, and if it fails to do so, the State Attorney General of the State of California is designated as agent for CSU, with full authority to receive such service of process on its behalf, which designation and authorization shall survive the Close of Escrow and be irrevocable. Section 6.12 Survival. The provisions of this DDA shall not terminate but rather shall survive any conveyance and the delivery and performance of all consideration. Page 16 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PO DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 IN WITNESS WI IEREOF, the parties have executed this DDA as of the day and year first written above AGENCY CSU SUCCESSOR AGENCY TO 'I}IE PALM DESERT DEVELOPMENT AGENCY TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY By: By: Printed Name: John M. Wohlmuth Printed Name: Elvyra F. San Juan Title: Executive Director Title: Assistant Vice Chancellor of Capital Planning, Design & Construction ATTEST: By: Rachelle D. Klassen, Secretary RECOMMENDED BY CAMPUS: California State University, San Bernardino By: Printed Name: Tomas D. Morales Title: President For California State University, San Bernardino Page 17 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 EXHIBIT A APPROXIMATE PROPERTY DESCRIPTION (attached) Page 18 of 18 G:\Econ Development\Martin Alvarez\SA Property Sales\Cal State\CSU PD DDA for Reserve Property final 2-12-15.docx RESOLUTION NO. SA -RDA 040 EXHIBIT "A" Legal Description Parcel "A" That certain parcel of land described in the Grant Deed to the City of Palm Desert, a municipal corporation, recorded March 14, 2011, as Document No. 2011-0115457, Official Records of the County of Riverside, California, said land being in the east half of Section 33 and the west half of Section 34, Township 4 South, Range 6 East, S.B.M. in the City of Palm Desert, County of Riverside, State of California. EXCEPTING THEREFROM that certain parcel of land described in the Grant Deed to the City of Palm Desert, a municipal corporation, recorded May 15, 2002, as Document No. 2002-254640, Official Records of said County of Riverside. ALSO EXCEPTING THEREFROM that certain parcel of land described as follows: Beginning at the westerly corner of that certain parcel of land described in said Grant Deed to the City of Palm Desert per Document No. 2002-254640, said westerly corner is shown as the True Point of Beginning (T.P.O.B.) on the northerly right of way line of Frank Sinatra Drive in said Grant Deed, said westerly comer also being a point located 55.00 feet northerly, measured at right angles, from the centerline of Frank Sinatra Drive; thence along the northerly line of said parcel of land described in said Document No. 2002-254640 through the following four courses: 1) N 88° 30' 19" E 600.17 feet; 2) thence N 89° 50' 32" E 100.00 feet; 3) thence N 44° 50' 32" E 124.45 feet; 4) thence N 89° 50' 32" E 2.00 feet; thence leaving said northerly line N 0° 09' 28" W 59.49 feet to the beginning of a curve concave to the west having a radius of 743.00 feet; thence northerly 286.47 feet along said curve through a central angle of 22° 05' 26"; thence N 22° 14' 54" W 159.35 feet; thence N 67° 14' 54" W 22.72 feet to the beginning of a curve concave to the north having a radius of 975.00 feet, a radial line through said beginning of curve bears S 17° 56' 24" E; thence westerly 746.56 feet along said curve through a central angle of 43° 52' 17" to the east line of that certain parcel of land described in the Grant Deed to the Regents of the University of Califomia recorded February 10, 2003, as Document No. 2003- 095264, Official Records of said County of Riverside; Page 1 of 3 RESOLUTION NO. SA -RDA 040 thence along said east line S 0° 09' 28" E 627.17 feet to the most easterly southeast corner of said parcel of land per Document No. 2003-095264; thence along the southerly lines of said parcel of land per Document No. 2003-095264 through the following three courses: 1) S 89° 50' 32" W 35.02 feet to the beginning of a curve concave to the northwest having a radius of 18.00 feet, a radial line of said curve through said beginning bears S 85° 01'34" E; 2) thence southerly and westerly 31.93 feet along said curve through a central angle of 101 ° 38' 27"; 3) thence S 44° 50' 32" W 10.43 feet to said northerly right of way line of Frank Sinatra Drive; thence along said northerly right of way line N 89° 50' 32" E 137.45 feet to the Point of Beginning. ALSO EXCEPTING THEREFROM that certain parcel of land described as follows: Beginning at a point in the easterly line of said parcel of land described in the Grant Deed per Document No. 2011-0115457, said point also being in the westerly right-of- way line of Gerald Ford Drive, 55.00 feet in half width, said point being the northerly terminus of that certain course described as S 18°22'05" E 480.55 feet; thence S 18°22'05" E along said easterly line 124.61 feet; thence N 63°22'05" W 32.53 feet; thence S 71 °37'55" W 332.36 feet; thence N 18°22'05" W 332.03 feet; thence N 71 °37'55" E 326.84 feet to a point in said easterly line of the parcel of land and said westerly right-of-way line of Gerald Ford Drive, and the beginning of a non -tangent curve, concave to the southwest, having a radius of 945.00 feet, a radial line through said beginning of curve bears N 57°31'09" E; thence southeasterly 232.77 feet along said curve through a central angle of 14°06'46" to the Point of Beginning. Page 2 of 3 RESOLUTION NO. SA -RDA 040 Parcel "A" containing 114.10 acres, more or less. Subject to all covenants, rights, right-of-ways and easements of record, if any. 7 4.. R. Page Garner City Surveyor City of Palm Desert, CA Date Page 3 of 3 • • RESOLUTION NO. SA -RDA 04R�:u` o - v IT-1NLS )10011 u. t cr- 41 LLJ 4.1 m 0 Z .; Ole look 0.6111 6 Ai