Loading...
HomeMy WebLinkAboutSR - C27520 - Funding Agmt - Public Safety Academy/Res 08-18/Res 159/Funding AgmntCITY OF PALM DESERT/PALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVAL OF RESOLUTION NO. 08-18 APPROVING A FUNDING AGREEMENT WITH COLLEGE OF THE DESERT FOR PART OF THE COST TO CONSTRUCT THE PUBLIC SAFETY ACADEMY SUBMITTED BY: MARTIN ALVAREZ, REDEVELOPMENT MANAGER DATE: MARCH 27, 2008 CONTENTS: RESOLUTION NO. 08-18 FUNDING AGREEMENT Contract No. C27520 COLLEGE OF THE DESERT RESOLUTION NO. 159 Recommendation: That the City of Palm Desert/Redevelopment Agency open the public hearing and receive testimony pursuant to Section 33445 of the Health and Safety Code and; 1. By Minute Motion, that the City Council/Agency Board approve Resolution No. 08-18 , authorizing a funding agreement with College of the Desert for the construction of the Palm Desert Public Safety Academy. Funds are available ($500,000 in each account for a total of $2 Million) in the following accounts: 850-4800-454-3904, 851-4800-454-3904, 853-4800-454- 3904, and 854-4800-454-3904. Executive Summary: Approval of the staff recommendation will approve a funding agreement in the amount of $2 Million over a five-year period for the construction of the Palm Desert Public Safety Academy at the northeast corner of the College of the Desert campus. Staff recommends that the City Council/Agency Board open the public hearing, receive testimony and adopt the attached Resolution pursuant to Public Health and Safety Code 33445. Discussion: As part of the 2007/2008 Fiscal Year Budget, the Redevelopment Agency Board approved the funding of $2 Million over a five-year period for the construction of an approximately $29 Million Public Safety Academy at College of the Desert. To authorize the funding by the Redevelopment Agency, an agreement and resolution pursuant to Public Safety Code Section 33445 was prepared by our legal counsel. Staff Report Approval of Funding Agreement for COD Public Safety Academy Page 2 of 2 March 27, 2008 The key points of the agreement are as follows: • The District will construct a 19,000 square foot Public Safety Academy at College of the Desert providing classrooms, indoor/outdoor physical training areas and laboratories for police and fire training at the northeast corner of College of the Desert. • The District will operate the facility as a Public Safety Academy for a five year period commencing with the completion of the project. • The District will grant naming rights to the City; naming the facility "Palm Desert Public Safety Academy" • The Redevelopment Agency will provide $2 Million funding over a five-year period ($400,000 annually), commencing with the issuance of a certificate of occupancy anticipated in July of 2009 The College of the Desert District Board (District) reviewed and approved the agreement and adopted Resolution 159 on February 22, 2008. In accordance with Public Safety Code Section 33445, a public hearing was properly noticed for March 27, 2008. The agreement and resolution necessary to authorize the use of Redevelopment funds has been reviewed and approved by Agency counsel, and agreed to by the District. Therefore, staff recommends that that the Agency Board open the public hearing, receive testimony and adopt Resolution No. 08_18 , approving a $2 Million funding agreement for the "Palm Desert Public Safety Academy" at College of the Desert. Submitted b "(Martin Alvarez Redevelopment Manager Approval: Department Head: Dave Yrigoyen Direc>F-pf R evelopment/Housing PauYS. Gibson, Director of Finance A Carlos L. Ortega xecutive Director G:\rda\Beth Longman\Staff Rep s\A1varez\COD PSA Agreement.doc proval: , x4k-1 'ti McCarthy :M edevelopme<--., CITY OF PALM DESERT AND THE PALM DESERT REDEVELPMENT AGENCY NOTICE OF JOINT PUBLIC HEARING NOTICE IS HEREBY GIVEN pursuant to California Health and Safety Code Sections 33445 and 33679 that the Palm Desert City Council (the "City Council") and the Palm Desert Redevelopment Agency (the "Agency") will hold a joint public hearing regarding the proposed payment by the Agency of part of the cost of the installation and construction of a new public safety academy to be owned by the Desert Community College District (the "District") and to be built on land owned by the District in the northeast corner of the College of the Desert campus, which is located on Monterey Avenue in the City of Palm Desert (including classrooms, indoor and outdoor physical training areas, and laboratories for police and fire training). Such payment would be made pursuant to a proposed agreement entitled, "Funding Agreement" between the Agency and the District. Pursuant to the Funding Agreement, the Agency will fund up to Two Million Dollars ($2,000,000) in construction costs on the condition that the District complete the construction of the academy and thereafter operate it for the purpose of providing instruction in public safety for a period of five years. The academy will be located in the Agency's Project Area No. 1. The time, date and place of such public hearing is as follows: TIME: 4:00 p.m. DATE: March 27, 2008 PLACE: City of Palm Desert Council Chamber 73-510 Fred Waring Dr. Palm Desert, CA 92260 (760) 346-0611 The above -described Funding Agreement, together with a summary, is available to the public for inspection and copying, at a cost not to exceed the cost of duplication, at the office of the City Clerk, 73-510 Fred Waring Drive, Palm Desert, California. The summary includes all of the following: (i) an estimate of the amount of taxes allocated to the Agency pursuant to Health and Safety Code Section 33670(b) which the Agency will use to pay for the cost of the installation and construction of the public safety academy, including interest payments; (ii) the facts supporting the determinations required to be made by the City Council pursuant to Health and Safety Code Section 33445; and (iii) the redevelopment purpose for which such taxes are being used to pay for the cost of the installation and construction of the public safety academy. P6402-0001 \ 1024307v 1.doc All interested persons are invited to attend and provide testimony and comments to the Agency and City Council. In compliance with the American with Disabilities Act, if you need special assistance to participate in an Agency or City Council meeting or other services offered by the Agency or City, please contact the City Clerk's office at 73-510 Fred Waring Drive, Palm Desert, California 92260. Notification at least 48 hours prior to the meeting or time when services are needed will assist the Agency and City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service. Date: March 5, 2008 aCHEL, CITY CLERK CITY OF PALM DESERT, CALIFORNIA 2 P6402-000 1\1024307 v 1.doc RESOLUTION NO. 08-18 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT AUTHORIZING PAYMENT BY THE PALM DESERT AGENCY FOR PART OF THE COST OF THE INSTALLATION AND CONSTRUCTION OF A PUBLIC SAFETY ACADEMY TO BE OWNED BY THE DESERT COMMUNITY COLLEGE DISTRICT RECITALS: A. In order to effectuate the provisions of the Redevelopment Plan (the "Redevelopment Plan") for Project Area No. 1 (the "Project Area"), the Palm Desert Redevelopment Agency (the "Agency") proposes to enter into that certain Funding Agreement (the "Funding Agreement") with the Desert Community College District (the "District") pursuant to which the Agency will fund up to $2,00,000 in construction costs of a new public safety academy (out of a total cost of approximately $29 million) to be owned by the District and to be built on land owned by the District in the northeast corner of the College of the Desert campus which is located on Monterey Avenue in the City of Palm Desert, California (the "City"). The public safety academy (the "academy") will include classrooms, indoor and outdoor physical training areas, and laboratories for police and fire training. The Funding Agreement is on file in the office of the City Clerk and available for public inspection. B. Pursuant to California Health and Safety Code Sections 33445 and 33679, on March 27, 2008, the City Council (the "City Council") of the City and the Agency held a duly noticed joint public hearing on the approval of the Agency's proposed payment of up to $2,000,000 for the construction of the academy pursuant to the Funding Agreement, at which time all persons desiring to comment on, or ask questions concerning, the payment of such monies and the Funding Agreement were given the opportunity to do so. Prior to the public hearing, information concerning the Agency's proposed payment of monies and the Funding Agreement were available for public inspection in the office of the City Clerk in accordance with Health and Safety Code Section 33679. On February 22, 2008, the District held a public hearing on the Agency's proposed payment of up to $2,000,000 for the construction of the academy under the Funding Agreement pursuant to Health and Safety Code Sections 33445 and 33679. C. The proposed academy is located in and will benefit the Project Area. The City Council has previously determined that the Project Area is an area in which the combination of conditions of blight are so prevalent and so substantial that there is a reduction of, or lack of, proper utilization of the area to such an extent that it constitutes a serious physical, social and economic burden on the community which cannot reasonably be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment. Among other things, the Project Area contains vacant and underutilized properties, properties which suffer from depreciated or stagnant property values and impaired investments, and deteriorated, 116402\0001\Resolution-Public Sa)ety Academy Wrda\Martin AlvareACOU Public Safety Acadenry\Resolution-Public Satiety Academ).doc Resolution No. o8-i8 aged and obsolete buildings. Such conditions tend to further deterioration and disuse because of the lack of incentive to landowners and their inability to improve, modernize or rehabilitate their property while the condition of the neighboring property remains unchanged. In addition, the Project Area is characterized by the existence of inadequate public improvements and utilities, which cannot be remedied by private or governmental action without redevelopment. The development of the academy will provide needed educational facilities, assist in the revitalization of the Project Area, create employment opportunities for residents of the Project Area, and help remedy the lack of adequate public improvements serving the Project Area, thereby eliminating a factor which substantially hinders the economically viable use of property and buildings within the Project Area. The academy will train public safety personnel in administration of justice, fire fighting technology, and police officer standards. This will allow the District to help provide a better -educated workforce, which will benefit local businesses and help stimulate the economy. All of the foregoing will assist in encouraging private sector investment in the Project Area and will assist in eliminating blighting conditions in the Project Area. D. On February 22, 2008, the Board of Trustees of the District adopted Resolution No.159, finding that no other reasonable means of financing the total construction costs of the academy are available to the District. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS: Section 1. The foregoing recitals are true and correct and a substantive part of this Resolution. Section 2. Based upon the foregoing and other information presented to the City Council, the City Council hereby finds and determines that: (i) the payment by the Agency of up to $2,000,000 to the District pursuant to the Funding Agreement for a portion of the cost of the construction of the academy is consistent with the Agency's implementation plan adopted pursuant to Health and Safety Code Section 33490; (ii) no other reasonable means of financing the construction costs of the academy are available to the City; (iii) the District has found that no other reasonable means of financing the total construction costs of the academy are available to the District; (iv) the academy will be of benefit to the Project Area and the immediate neighborhood in which the academy is located; and (v) the payment by the Agency for a portion of the cost of the construction of the academy will assist in the elimination of one or more blighting conditions inside the Project Area. P6402\0001\Resolution-Public Safety Academy 2 G:\rda\Martin Alvarez\COD Public Safety Academy\Resolution-Public Safety Academy.doc Resolution No. 08-18 Section 3. The City Council hereby approves the payment by the Agency of up to $2,000,000 to the District for the construction of the academy pursuant to the Funding Agreement from any funds of the Agency lawfully available therefor. PASSED, APPROVED and ADOPTED this day of , 2008. AYES: NOES: ABSENT: ABSTAIN: Jean M. Benson, Mayor ATTEST: Rachelle D. Klassen, City Clerk 116402\0001\Resolution-Public Safety Academy 3 G:\rda\Martin Alvarez\COD Public Safety Academy\Resolution-Public Safety Academy.doc SUMMARY CITY OF PALM DESERT REDEVELOPMENT PROJECT AREA NO. 1 PUBLIC SAFETY ACADEMY OF THE COLLEGE OF THE DESERT PROPOSED FUNDING OF A PORTION OF THE CONSTRUCTION COSTS OF THE ACADEMY BY THE PALM DESERT REDEVELOPMENT AGENCY PURSUANT TO A FUNDING AGREEMENT I. INTRODUCTION In order to effectuate the provisions of the Redevelopment Plan for Project Area No. 1, pursuant to provisions of the Community Redevelopment Law (California Health and Safety Code Section 33000, et seq.), and in particular Section 33445 thereof, the Palm Desert Redevelopment Agency (the "Agency") proposes to enter into that certain Funding Agreement (the "Funding Agreement") with the Desert Community College District (the "District") pursuant to which the Agency will fund up to $2,000,000 in construction costs of a new public safety academy (the "academy") (out of a total cost of approximately $29 million). The academy will be owned by the District and will be built on land owned by the District in the northeast corner of the College of the Desert campus which is located in Project Area No. 1 of the Agency (the "Project Area") on Monterey Avenue in the City of Palm Desert, California (the "City"). The academy will include classrooms, indoor and outdoor physical training areas, and laboratories for police and fire training. The Funding Agreement is attached hereto as Exhibit A. The College of the Desert opened in 1962. On account of increasing student enrollment, the College is in need of expansion in order to address overcrowding. Expansion is required in order for the College to be able to continue to train local residents for jobs and prepare students for four-year colleges. In addition, the College has urgent and critical facility needs, including health and safety issues, which will continue to worsen if not addressed immediately. For example, deteriorated campus flooring, roofs, walls, windows, and plumbing and electrical systems are in need of repair; buildings are in need of seismic retrofitting; and water, sewer, mechanical, heating, ventilation and gas infrastructure require upgrading to current safety codes. Campus safety and security needs to be improved, including improving pedestrian access routes across campus for safety; improving campus safety and security by adding exterior lighting; implementing safety upgrades to relieve traffic flow and parking congestion; repairing or replacing outdated natural gas, water, sewer and storm drain systems, improving emergency access and evacuation routes; and redesigning the campus road network to eliminate dangerous intersections and unsafe conditions. P6402-U001\1024544v1.doc II. ESTIMATE OF AMOUNT OF TAXES The Agency estimates that the total amount of taxes to be allocated and paid to the Agency pursuant to Health and Safety Code Section 33670(b) to be used for paying construction costs of the academy pursuant to the Funding Agreement is $2,000,000. III. DETERMINATIONS REQUIRED UNDER HEALTH AND SAFETY CODE SECTION 33445(a) A. No Other Reasonable Means of Financin� is Available The budget constraints of the City prevent the City from financing the construction of the academy by any means. Traditional methods of financing are unavailable to the City as a practical matter because of voter approval requirements. The state budget crisis, and legislative proposals to address the budget crisis, have also created a great deal of concern over the City's ability to meet its existing and future obligations. In March 2004 the taxpayers of the Coachella Valley passed Bond Measure B, which provided approximately $346 million of bond funds for the District to use to expand and upda.te the facilities at the College, as shown on the College's Facilities Master Plan. Measure B represents a large portion of the College's approximately $372 million Facilities Master Plan. However, the budget for each project included in the Facilities Master Plan is an estimate only, and may be affected by factors beyond the District's control. The final cost of each project will be determined as plans are finalized, construction bids aze awarded and projects aze completed, and may exceed the budgeted amounts. In any event, the Measure B bond proceeds are not suf�icient to fund a11 of the projects on the Facilities Master Plan. Funding for construction costs which is in addition to the Measure B Bond funds and the proposed Agency payment pursuant to the Funding Agreement is not currently available to the District. Community colleges have historically been under-funded in California, and have faced ongoing cutbacks due to the State budget crisis. Without the payment of funds by the Agency pursuant to the Funding Agreement, no other reasonable means of financing the total construction costs of the academy are available to the District; funding the academy construction costs entirely out of Measure B Bond funds would impair the District's ability to fund other urgent and critical facility needs of the College. B. The Academv Will Assist in t6e Elimination of Blight in the Proiect Area; Redevelonment Purpose of the Academv The academy will serve the residents, employees, and taxpayers of the City, including the Project Area. The City Council of the City of Palm Desert previously determined that the Project Area an area in which the combination of conditions of blight is so prevalent and so substantial that it causes a reduction of, or lack of, proper utilization of the azea to such an extent that it constitutes a serious physical, social and economic burden on the P6402-0001 U 024544v l.doc 2 community which cannot reasonably be expected to be reversed or alleviated by private enterprise or governmental action, or both, without redevelopment. Since the adoption of the Redevelopment Plan for the Project Area, the Agency has acted as a catalyst to accomplish redevelopment of the Project Area. However, conditions of blight still exist throughout the Project Area. Among other things, the Project Area contains vacant and underutilized properties, properties which suffer from depreciated or stagnant property values and impaired investrnents, and deteriorated, aged and obsolete buildings. Such conditions tend to further deterioration and disuse because of the lack of incentive to landowners and their inability to improve, modernize or rehabilitate their property while the condition of the neighboring property remains unchanged. In addition, the Project Area is chara.cterized by the existence of inadequate public improvements and utilities, which cannot be remedied by private or governmental action without redevelopment. The development of the academy will provide needed educational facilities, assist in the revitalization of the Project Area, create employment opportunities for residents of the Project Area, and help remedy the lack of adequate public improvements serving the Project Area, thereby eliminating a factor which substantially hinders the economically viable use of property and buildings within the Project Area. The academy will train public safety personnel in administration of justice, fire fighting technology, and police officer standazds. This will allow the District to help provide a better-educated workforce, which will benefit local businesses and help stimulate the economy. All of the foregoing will assist in encouraging private sector investment in the Project Area and will assist in eliminating blighting conditions in the Project Area. Based on the foregoing, the academy will assist in eliminating conditions of blight within the Project Area and will serve a basic purpose of redevelopment, which includes the provision of shuctures as may be appropriate or necessary in the interest of the general welfare, including educational facilities. In addition, a fundamental purpose of redevelopment is to provide an environment for the social, economic and psychological growth and well-being of all citizens. The proposed new academy will help ensure that the College of the Desert continues to be a modern and efficient facility that serves the residents, employees and taxpayers of the City and the Project Area, and along with the other facilities of the College, will provide opportunities for education, recreation, and social interaction, which are necessary for the well-being of the community and the general welfare. P6402-000 I \ 1024544v 1.doc EXHIBIT A FUNDING AGREEMENT P6402-0OO1U024544v1.doc EXHIBIT A Contract No. C27520 FUNDING AGREEMENT THIS FLJNDING AGREEMENT (the "Agreement") is entered into as of February 22 , 2008 (the "Effective Date") by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and the DESERT COMMLJNITY COLLEGE DISTRICT, a community college district, duly organized and validly existing under the laws of the State of California (the "DistricY'). RECITALS A. The Agency is organized and existing under the Community Redevelopment Law of the State of Califomia as contained in Sections 33000, et seq., of the California Health and Safety Code (the "Community Redevelopment Law") pursuant to which it exercises govemmental functions and powers. B. The purpose of this Agreement is to effectuate the Redevelopment Plan, as amended (the "Redevelopment P1an") for Project Area No. 1(the "Project Area") in the City of Palm Desert, California (the "City"), by assisring in the financing of certain public improvements to be constructed by the District in the Project Area. C. District is the owner of certain land in the City described more particularly in Exhibit A hereto (the "Property"). The District intends to construct and operate on the Property a public safety academy consisting of a building of approximately 19,000 square feet which will be used by the District for instruction in public safety (the "Project"). The District held a public hearing on February 22 , 2008 and has determined, pursuant to Section 33445 of the Community Redevelopment Law, that without the funding provided by this Agreement the District would not have reasonable means of financing the construction of ihe Project, and therefore, the District has requested the financial assistance of the Agency as provided in this Agreement in order to construct the Project. D. The Agency and City held a joint public hearing on , 2008, and the Agency and City Council have determined that (i) the Project is of benefit to the Praject Area, (ii) without the funding provided by this Agreement, no reasonable means of financing the construction of the Project is available to the community, (iii) the payment of the funds as provided by this Agreement for the construction of the Project will assist in the elimination of blighting conditions within the Project Area, and (iv) the payment of funds as provided by this Agreement for the construction of the Project is consistent with the Agency's implementation plan. E. The Agency is willing to fund up to Two Million Dallars ($2,000,000) in construction costs, on the condition that District complete the construction of the Project and thereafter operates the Project for the purpose of pmviding instruction in public safety for a period of five (5) years. F. The constntction of the Project and its use to provide instruction in public safety provided in this Agreement are in the best interests of Agency, and the health, safety and welfare of the residents and taxpayers of the Project Area, will contribute to the implementation of the Pbao2-0a> >��ooga�s.� Redevelopment Plan, and are in accord with the public purposes and provisions of Community Redevelopment Law and all other applicable state and local laws. NOW, THEREFORE, in consideration for the mutual promises hereinafter set forth the parkies hereto agree as follows: AGREEMENT Construction of the Prolect. 1.1 Construction of the Proiect. District agrees to construct the Project in accordance with the plans and specifications therefor previously submitted to the City (the "Plans"). The construction of the Project is of the essence of this Agreement and the District shall comply in all respects with the Schedule of Performance (attached hereto as Exhibit B) and with the Plans. District shall also comply with all applicable provisions of the City's Municipal Code in the construction of the Project. 1.2 Cost of Construction. T'he entire cost of constructing the Project sha11 be bome by District (subject to the reimbursement by Agency of certain costs related to such construction as provided in Section 1.8 below) 1.3 Construction ScheduIe. District sha11 complete the construction of the Project within the time specified in the Schedule of Performance. 1.4 Comnliance with Laws. District represents and wamairts that the Project shall be constructed in compliance with all applicable legal requirements, including without limitation, a}�plicable federal and state occupation, safety and heaith standards, and all applicable laws and regulations with respect to competitive bidding and the payment of prevailing wages. In performing this Agreement, District is an independent contractor and not the agent of Agency. Agency shall not have any responsibility for making payments to any contractor or supplier of District. 1.5 Pro�ress of Construction. During the construction of the Project, District shall submit to the Agency from time to time, within ten (10) days following Agency's written request (which requests shall be subznitted not more frequently than once during each six (6) month period), a written report of the progress of the construction. The report shalt be in such form and detail as to reasonably inform Agency of the status of construction activities. 1.6 Citv and Other Goveramental AQencv Permits and Anvrovals. District has (at District's expense) secured, or cause to be secured, any and all pernuts which may be required by the City or any governmental agency having jurisdiction over the Project prior to the commencement of construction thereof. l .7 Certificate of Completion. (a) After completion of the construction of the Project (as evidenced by the issuance of a final certificate of occupancy therefor), Agency shall, prompdy following written request by District therefor, furnish District with a certificate of completion. Agency P�eoz-oat t�9vooaays.a� -2- shall not wzreasonably withhold the certificate of completion. The certificate of completion shall be, and shall so state that it is, conclusive determination of satisfactory completion of the construction of the Project required by this Agreement. (b) If Agency refuses or fails to furnish a certificate of completion after written request from District, Agency shall, within thiriy (30) days after the written request, provide District with a written statement of the reasons Agency refused or failed to furnish a certificate of completion. The statement shall also contain Agency's opinion of the action District must take to obtain a cefificate of completion. If the reason for such refusal is confined to items for which the costs of completion do not exceea Fifly Thousand Dollars ($50,000), Agency will issue its certificate of completion upon the posting by District with Agency of a bond or other collateral in an amount representing the fair value of the work not yet completed. If Agency shall fail to provide such written statement within said thirty (30) day period, District shall be deemed automatically entided to the certificate of completion. (c) The certificate of completion shall not constitute evidence of compliance with or satisfaction of any obligation of District to any holder of a mortgage, trust deed or other security instrument� Such certificate of completion shall not be construed as a notice of completion as described in California Civil Code Section 3Q93. 1.8 A�encv Funding. Provided that District shall be then operating the Project as required by Section 2.1 below, and no default by District hereunder shall otherwise have occurred and be continuing, Agency shall reimburse District, in an aggregate amount not to exceed Two Million Dollars ($2,000,(?00), for a portion of the construction costs incurred and paid by District with respect to the construction of the Project at the following times and in the following amounts: (i) within thirty (30) days of the issuance of the cefificate of completion by the Agency and the commencement of operation of the Project by the District, Agency shall pay Four Hundxed Thousand Dollars (5400,000) to District, (ii) on the fi�st anniversary of tiie date of the payment by Agency described in (i), Agency shall pay Four Hundred Thoe�sand Dollars ($400,000) to District, (iii) on the second anniversary of the date of the payment by Agency described in (i), Agency shall pay Fout Hundred Thousand Dollars ($400,000) to District, (iv) on the third anniversary of the date of the payment by Agency described in (i), Agency shall pay Four Hundred Thousand Dollars ($400,000) to District, and (v) on the fourth anniversary of the date of tiie payment by Agency described in (i), Agency shall pay Four Hundred Thousand Dollars ($440,000) to District. The Agency shall have the right, prior to making the first payment to District, to receive documentation of all District expenditures with respect to such construction (reasonable in form and content to the Agency) and to review a11 books and records pertaining to such construction costs ineurred by District. 2. Use and Oneration of Proiect. 2.l Use of the Proiect. During the period commencing no later than thirty (30) days foltowing the completion of construction of the Project (as evidenced by the receipt by District of the certificate of completion from Agency) and the commencement of operation of the Project by the District, and ending on the fifth anniversary of the date of the payment made by ihe Agency pursuant to Section 1.8(il above (the "Restricted Use Period"), District shall continuously operate the Project for the putpose of providing instruction in public p6aoz-oaa ���oosays.� -3- safety, and such other ancillary purposes which are educational or public service in nature and consistent with the operation of the Project as a public safety academy. 2.2 Buildin� and Ecauipment Maintenance Services. During the Restricted Use Period, District shall keep and maintain, or cause to be kept and maintained, the Project in good operabie, usable and sanitary order and repair, and in a good, safe and first-class condition. 2.3 Groands Maintenance Services. During the Restricted Use Period, District shall provide, or cause to be provided, grounds maintenance services to the Property, including, but not limited to, lawn and landscape maintenance, pest control, litter control, and rubbish removal, parking lot sweeping, and maintenance of irrigation systems and any appurtenant structures and equipment. 2.4 Comnliance with Laws. District shall comply with all municipal ordinances and all state and federal laws and regulations applicable to the operation of the Project, and District shal! not knowingly permit any illegal activities to be conducted on or about the Property. 2.5 I}istrict's Obli¢ation to Refrain from Discrimination. District covenants by and for itself, and any successors in interest, that there shall be no discrimination against or segregation of any person, or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, rental, sale, lease, sublease, transfer, use, occupancy, tenare or enjoyment of the Property, nor shall the District or any person claiming under or through it 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 Property. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Secrion 12955.9 of the California Govemment Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relaiing to housing for senior citizens. Subd.ivision (d) of Section 51 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph. (a) All deeds, leases or contracts made relative to the Property, improvements thereon or any part thereof, shall contain or be subject to substantially the following nondiscrimination clauses: (i) In deeds: "The grantee herein covenants by and for and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, ]2926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Califomia Government Code, in the sa1e, lease, sublease, transfer, use, P6402-04i ii990084v5.doc -4- occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee himself, 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 in the land herein conveyed. The foregoing covenants shall run with the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph sha11 not be construed to apply to housing for older persons, as defined in Section 12955.9 of the Califomia Government Code. With respect to familial status, nothing in said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Califomia Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Govemment Code shall appiy to said pazagraph." (ii) 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 that this lease is made and accepted upon and subject to the fotlowing conditions: That there shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Gcfvernment Code, as those bases are defined in Sections 1292b, 12926.1, subciivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the leasing, subleasing, tra�tsfetring, 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 pracrices of discriminallon or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein leased. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in Section 12955.9 of the California Government Code. With respect to familial status, nothing in said paragraph shall be construed to af�'ect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Califomia Civil Code, relating to housing for senior citizens. Subdivision (d) of Section S 1 and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." (iii) In contracts: "There shall be no discrimination against or segregation of, any person or group or persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California Government Code, in the sa1e, 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 in the land. Notwithstanding the immediately preceding paragraph, with respect to familial status, said paragraph shall not be construed to apply to housing for older persons, as defined in �6ao2-oai t��ooga�s.ao� -5- Section 12955.9 of the Califomia Government Code. With respect to familial status, nothing in said paragraph sha11 be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the California Civii Code and subdivisions (n), (o) and (p) of Section 12955 of the Califomia Government Code shall apply to said paragraph." The provisions of this Section 2.5 shall remain in effect in perpetuity. 2.6 Utilities. District shall be responsible for arranging for utility service for the Project, including but not limited to, water, gas, electricity, sewer and trash removal. 2.7 Safetv. District shall immediately conect any unsafe condition of the Project, as well as any unsafe practices by persons reasonably under its control occurring thereon. 2.8 Meetin�s. Representatives of Agency and District shall meet as may be reasonably requested by Agency or District to discuss matters related to the implementation of this Agreement. 2.9 Namin� Ri�hts. The sole name of the Project shall be the "Palm Desert Public Safety Academy" (the "Project Name"). The District sha11 use the Project Name in all official references to the Project, including press releases and promotional activities. The District shall, at the District's sole expense, design, fabricate and install one or more signs or plaques displaying the Project Name on the Project. The size and nature of such signs or plaques, and their location on or within the Project, sha11 be subject to the prior reasonable appmval of the Agency. The Project Name shall not be modified, and neither the nature or location of such signs or plaques sha11 be changed without the prior reasonable approval of the Agency. 2.10 Restrictive Covenants. To the extent pennitted by law, District agrees that the covenants and agreements set forth in this Section 2 shall burden the Property and sha11 nui with the land for the benefit of Agency and its successors and assigns, and that the same shall remain in effect during the Restricted Use Period unless stated otherwise within the specific terms set out above. The Agency and its successors-in-interest may obtain by �,r...r,:ate legal action specific performance of these covenants and restrictions and injunctive relief prohibiting the breach of such covenants and resfictions. 3. Insurance and Indemnification. 3.1 Insurance. The following insurance shall be obtained and maintained by the District: (a) Builder's Risk Insurance and Worker's Compensation Insurance. District shall obtain and maintain during the period of constiuction of the Project "all risk" builder's ris[c insurance, including coverage for vandalism and malicious mischief, in an amount equal to the cost of construction of the Project, and from the commencement of construction of the Project until the end of the Restricted Use Period, worker's compensation insurance and employer's liability insurance, for all workers employed w�th respect to the Project. Distrect P6402-0411 \990084v5.doc -f)- shall require its subcontractor(s) to provide worker's compensation insurance for all of subcontractor's employees from the commencement of construction of the Project untii the end of the Restricted Use Period. (b) General Liabilitv. District shall obtain and maintain in full force and effect from the Effective Date untit the end of the Restricted Use Period, commercial general liability cove7age in the amount of $1,000,000 per occurrence for bodily injury, personal injury, property damage, operations, products, and operations, and $2,000,000 in the aggregate. (c) Automobile Liabilitv. District shall obtain and maintain in full force and effect from the Effective Date until the end of the Restricted Use Period, automobile liability coverage in the amount of $1,OOO,Q00 per occurrence for bodily injtiry and property damage. � (d) Pronertv Insurance. District shall obtain and maintain in full force and effect from the commencement of coastruction of the Project until the end of the Restricted Use Period, on the Project and the Property, a policy of "all risk" property insurance, in an amoant equal to the replacement value of the Pmject plus building code upgrades. (e) Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions applicable to District's insurance obligations must be disclosed to and approved by Agency. At the option of Agency, the insurer shall reduce or eliminate such deductibles or self-insured retentions or District shall provide a financial guarantee satisfactory to Agency guar�nteeing payment of losses and related investigations, claim administration, and defense expenses. (� Insurance Rec�uirements. (i) Acceptabilitv of Insureis: Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A-:VII, unless otherwise acceptable to Agency. Insurers sha11 also be licensed to operate in the State of California unless specifically waived by a11 parties hereto. (ii) Cancellation of CoveraQe: Each insurance policy required by this Section 3 sha11 provide that the coverage shall not be canceled, except following thirty (30) days' prior written notice by certified mail, return receipt requested, given to all parties hereto. (iii) Additional Insured: The insurance policy referenced in Section 3.1(b� above shall be endorsed to add Agency and its o�icers, officials, employees and volunteers as additional insureds. (iv) Primary Insurance: For any claims related to this Agreement, District's insurance coverage shall be primary insurance. (g) Certificate of Insurance. District shall complete and file with Agency, prior to commencing construction of the Project, original certificates of insurance and endorsements effecting coverage as required in this Section 3. P6402-04111990084vS.doc -%- 3.2 Indemnification. From and a.fter the Effective Date, District hereby agrees to indemnify, defend, protect, and hold harmless Agency and City and any and all agents, employees and representatives of Agency and City from and against all losses, liabilities, claims, damages (including foreseeable or unforeseeable consequential damages), penalties, fines, forfeitures, costs and expenses (including all reasonable out-of-pocket litigation costs and reasc�nable aitorney's fees} and demands of any nature whatsoever, related directly or indirectly to, or arising out of or in connection with: (a) the construction, operation or management of the Project, or (b) any breach or default by District under this Agreement; regardless of whether such losses and liabilities shall accrue or are discovered before or after t.ecmination or expiration of this Agreement, except to the extent such losses or liabilities aze caused solely and exclusively by the gross negligence or intentionally wrongful acts of Agency or City. District shall defend, at its expense, Agency and City, and Agency's and City's council members, boazd members, officers, agents, attorneys, consultants, independent contractors, servants and employees in any legal action based upon such alleged acts or omissioas. Agency or City may in their discretion, and at their own cost, participate in the defense of any such legal action. The indemnification obligations of the District contained in this Section 3, shall be in addiNon to an not in substitution of the coverage provided by the insurance policies required to be maintained under this Section 3, and shali survive the ternunation of this Agreement. 4. Events of Default, Remedies and Tennination. 4.1 Defaults — Definition. Occurrence of any or a11 of the following breaches shall constitute a default under this Agreement: (a) District's failure to complete the construction of the Project in accordance with the Schedule of Performance. (b) District's failure to comply with the use restrictions, the maintenance requirements, and/or the non-discrimination or other restrictive covenants pertaining the Property or the Project in accordance with the applicable terms of this Agreement. (c) A breach of any material term of this Agreement by any party hereto not involving the payment of money, and failure of such party to cure such breach within the dme period stated, or if no cure period is stated, then within thirty (30) days after the non- defaulting party has given 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; (d) Any breach of this Agreement by any party hereto 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. 4.2 Remedies in the Event of Default. Upon the occurrence of a defauJt hereunder, the non-defaulting party shall have the right to terminate this Agreement by P6402-0411\990084v5.doc -g- delivering written notice thereof to the defaulting party, subject to the rights of the defaulting party to cure such default as provided above, and upon such termination all rights and obligations of the parties to this Agreement (including, but not limited to, the payment obligations of Agency under Section 1.8 hereo� shati be of no further force or effect, except as expressly otherwise provided herein. Such non-defaulting 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. 43 No Personal Liabilitv. No representative, agent, attorney, consultant, or employee of Agency sha11 personally be liable to District or any successor in interest of District, in the event of any default by Agency, or for any amount which may become due to District or its respective successor(s) in interest, on any obligation under the terms of this Agreement. No representative, agent, attorney, consultant, or employee of District shall personally be liable to Agency or any successor in interest of Agency, in the event of any default by District, or for any amount which may become due to Agency or any successor in interest, on any obligation under the terms of this Agreement. 4.4 Riuhts and Remedies are Cumulative. The rights and remedies of the parties hereto are cumulative, and the exercise by any 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. 4.5 Inaction Not a Waiver of Default. Any failures or delays by any party hereto 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 any such party of its 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 hereto of less than the full performance from any other party shall not constitute a waiver of such party's right to demand and re�eive the fiill amount due, unless such party executes a specific accord and satisfaction. 5. A�uurovals. Except as otherwise provided in this Agreement, a consent or approval referred to herein of either party shall not be unreasonably withheld or conditioned. Whenever either party has called upon the other to execute and deliver a consent or approval in accordance with the terms of this Agreement, the failure of such party to respond to the demand within five (5) business days after written request therefor is given in accordance with the terms hereof, or such other period as specifically set forth in this Agreement, shall be deemed to be a consent or approval. In the event that either party refuses to give its consent or approval to any request by the other, such refusing party shall indicate by written notice to the other the reason for such refusal unless this Agreement permits the consent or approval to be withheld without cause or in the sole discretion of either party. 6. Renresentations and Warranties. 6.1 District's Representations and Warranties. District represents and wairants the following: Pbao2-oai ��v9oosa�s.ao� -9- (a) District is a community college district, duly organized, validly existing and in good standing under the laws of the State of California; that it has all necessary power and authority to enter into this Agreement and to cazry out the iransactions contemplated herein; and that the execution and delivery hereof and the performance by District of District's obligations hereunder will not violate or constitute a default under the terms and provisions of any agreement, law or court order to which District is a party or by which District is bound. (b) That all actions required to be taken by or on behalf of District to authorize it to execute, deliver and perform its obligations under this Agreement have been taken, and that this Agreement is a valid and binding obligation of District enforceable in accordance with its terms, except as the same may be affected by bankruptcy, insolvency, or similaz laws, vr by legal or equitable principles relating to or limiting the rights of contracting parties generally. (c) That the persons executing this Agreement on behalf of District have full power and authority to bind District to the terms hereof. 6.2 AQency's Representations and Warranties. Agency represents and warrants the following: (a) Agency is a public body, corporate and politic, duly organized, validly existing and in good standing under the laws of the State of California; that it is duly qualified to do business and is in good standing in the State of Califomia; that it has all necessary power and authority to enter into this Ageement and carry out the transactions contemplated herein; and that the execution and delivery hereof and the performance by Agency of Agency's obligations hereunder will not violate or constihrte a default under the terms and provisions of any agreement, law or court order to which Agency is a party or by which Agency is bound. (b) That all actions required to be taken by or on behalf of Agency to authorize it to execute, deliver and perform its obligations under this Agreement have been taken, and that tlus Agreement is a valid and binding obligation of Agency enforceable in accordance with its terms, except as the same may be affected by bankniptcy, insolvency, or similaz laws, or by legal or equitable principles relating to or limiting the rights of contracdng parties generally. (c) That the persons executing this Agreement on behalf of Agency has full power and authority to bind Agency to the terms hereof. 7. Notices. Any notice, demand, request, consent, approval or communication that any party desires or is required to give to another party sha11 be in writing and shall be deemed given as of the time of hand delivery to the addresses set forth below, or three (3) days after deposit into the United Sta.tes mail, postage prepaid, by registered or ceRified mail, return receipt requested. Unless notice of a different address has been given in accordance with this Article 14, all such notices shall be addressed as follows: Pbao2-oa> >��oosa�s.do� -10- If to District: Desert Community College District 43-500 Monterey Avenue Palm Desert, California 92260 Attention: Jerry Patton Telephone No: (760) 773-2500 Fax No: (760)366-5255 With a conv to: Desert Community College District 43-500 Monterey Avenue Palm Desert, California 92260 Attention; Wade Ellis Telephone No: (760) 773-2513 Fax No: (760) 341-8678 If to A�encv: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Executive Director Telephone No.: (760) 346-0611 Fax No.: (760) 341-6372 With a covv to: Richards, Watson & Gershon 355 South Crrand Avenue, 40th Floor Los Angeles, California 90071-3101 Attention: Jim G. Grayson, Esq. Telephone No.: (213) 626-8484 Fax No.: (213) 626-0078 or such other address as either pa.rty may from time to time specify in writing to the other. 8. Miscellaneous. 8.1 Exhibits. All Exhibits attached hereto are incorporated herein by this reference as if fully set forth herein; provided, however, in the event that at the time of the execution of this Agreement any of the Exhibits to be aitached are incomplete, the parties shall use their best efforts to complete such Exhibits at the earliest possible date. To the extent this Agreement may be rendered unenforceable by the lack of completion of any of the Exhibits, such defect shall be cured as such incomplete Exhibits are made complete in accordance with this Section, except to the extent that such Exhibits are deemed and stipulated by the parties to be complete on the execution of this Agreement by the parties hereto. If any Exhibits are subsequently changed by the mutual written agreement of the parties, the Exhibits shall be modified to reflect such change or changes and initialed by the parties. 8.2 �estriction on Transfer of District's Ristt►ts and Obli�ations. (a) During the Restricted Use Period, District shall not sell, assign, transfer, mortgage, encumber, hypothecate, or convey (collectively, a"Transfer") the Project, the Property or any part thereof, or any of District's rights or obligations hereunder, without the P6402-04111990084v5.doc -11- Agency's prior written consent, which consent may be granted or withheld in the Agency's sole and absolute discretion. District acknowledges that the identity of District is of particulaz concern to the Agency, and it is because of District's identity that the Agency has entered into this Agreement with District. Except for any transferee approved by the Agency pursuant to this Section 8.2 ("Transferee") that has taken possession of the Project or the Property, no voluntary or involuntary successor in interest of District sha11 acc�uire any rights or powers under this Agreement. No transfer or assignment of District's interest hereunder without the Agency's prior written approval shall be deemed to release District from the obligations of District hereunder. (b) In the event that District desires to Transfer the Project, the Property, or its rights or obligations hereunder, District will so notify Agency, and will provide Agency with all pertinent information regarding the Transferee. The Agency will approve or disapprove the Transferee (in its sole and absolute discretion) within thirty (3Q) days after receipt of written notice of District's intention to make the Transfer. Upon the completion of any Transfer to a Transferee approved by the Agency as provided in this Section 8.2, the Transferee shall assume all of District's rights and obligations under this Agreement, and District shall be relea.sed from all liabilities and obligations arising from and after the date of such Transfer under this Agreement. 8.3 Entire A�reement. This Agreement and the Exhibits hereto embody the entire agreement and understand.ing of the parties relating to the subject matter hereof and supersede all prior representations, agreements, and understandings, oral or written, relating to such subject matter. 8.4 Amendment and Waiver. This Agreement may not be amended or modified in any way except by an instrument in writing executed by all parties hereto. 8.5 No Partnershin or Joint Venture. Nothing contained herein shall be deemed or construed by the parties hereto or by any third party as creating the relationship of (i) a partnership, (ii) a joint venture between the pazties hereto, or (ii) an agent. 8.6 Severabilitv. Except as expressly provided to the contrary herein, each section, part, term, or pmvision of this Agreement shall be considered severable, and if for any reason any section, part, term, or provision herein is determined to be invalid and contraty to or in conflict with any existing or future law or regulation by a court or governmental Agency having valid jurisdiction, such determination shall not impair the operation of or have any other affect on other sections, parts, terms, or provisions of this Agreement as may remain otherwise intelligible, and the latter shall continue to be given full force and effect and bind the parties hereto, and said invalid sections, parts, terms, or provisions shall not be deemed to be a part of this Agreement. 8.7 Survival. All covenants, agreements, representations, and warranties made herein shall survive the execution and delivery of (i) this Agreement, and (ii) all other documents and instruments to be executed and delivered in accordance herewith, and shall continue in full force and effect. P6402-0411 \990084vS.doc -12- 8.8 Construction and Interpretation of A�reement. This Agreement shall be governed by and construed under the laws of the State of California. Should any provision of this Agreement require judicial interpretation, it is agreed that the court interpreting or considering same sha11 not apply the presumption that the terms hereof shall be more strictly construed against a party by reason of the rule or conclusion that a document should be construed more strictly against the party who itself or through its agent prepared the same. It is agreed and stipulated that all parties hereto have equally participated in the preparation of this Agreement and that legal counsel was consulted by each party before the execution of this Agreement. 8.9 Cantions. Captions, titles to sections, and paragraph headings used herein are fvr convenience of reference and shall not be deemed to limit or alter any provision hereof. 8.10 Counteroarts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shalt be deemed one and the same Agreement. 8.11 Execution and Recordation of Memorandum of A�reement. The Agency and District shall each execute the Memorandum of Agreement attached hereto as Elchibit C contemporaneousty with their execution of this Agneement, and District hereby authorizes Agency to record the Memorandum of Agreement in the Official Records of the County of Riverside. P6402-0411\990084vS.doc -13- IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. AGENCY: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: ATTEST: Approved as to Form: Richazds, Watson & Gershon : Agency Attorney DISTRICT: DESERT COMMUNITY COLLEGE DISTRICT, a community college district, duly organized and validly existing under the laws of the State of California By: Nam T i.w D. R�.�,�11 �k Title: 1i1 u��.�,3— ,Ci�� Se� � t� e,� / P6402-0411\9I0084v5.doc -14- TN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. AGENCY: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: DISTRICT: DESERT COMMUNITY COLLEGE DISTRICT, a community college district, duly organized and validly existing under the laws of the State of California By: Name: Title: ATTEST: Approved as to Form: Richards, Watson & Gershon By: � Agency Attorney PG402-041 1 \990084v5.doc -14- LIST OF EXHIBITS A. Description of Property B. Schedule of Performance C. Memorandum of Funding Agreement P6402-041 I \990084v5.doc -1$- EXHIBIT A DESCRIPTION OF PROPERTY ALL THAT CERTAIN REAL PROPERTY IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA BEING A PORTION OF THE SOUTHWEST ONE- QUARTER OF SECTION 17, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF, MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHWEST ONE-QUARTER OF SAID SECTION 17 BEING ALSO THE CENTERLINE INTERSECTION OF MAGNESIA FALLS DRIVE AND SAN PABLO AVENUE IN SAID CITY OF PALM DESERT; THENCE ALONG TFIE EAST L1NE OF SAID SOUTHWEST ONE-QUARTER BEING ALSO THE CENTERLINE OF SAID SAN PABLO AVENtJE SOUTH 00° 04' 45" WEST 199.81 FEET; THENCE LEAVING SAID EAST LINE AND SAID CENTERLINE AND PERPENDICULAR THERETO NORTH 89° 55' 15" WEST 50.00 FEET TO THE WEST LINE OF SAID SAN PABLO AVENUE TO THE TRUE POINT OF BEGINNING FOR THIS DESCRIPTION; THENCE THE FOLLOWING COURSES: 1. ALONG SAID WEST LINE OF SAN PABLO AVENUE SOUT'H 00° 04' 45" WEST 288.70 FEET; 2. LEAVING SAID WEST LINE SOUTH 88° 44' 47" WEST 212.78 FEET; 3. SOUTH 45° QO' 00" WEST 33.77 FEET; 4. SOUTH 89° 44' 4T' WEST 287.88 FEET; 5. SOUTH 70° 00' 00" WEST 67.67 FEET; 6. SOUTH 89° 44' 47" WEST 91.57 FEET; 7. NORTH 00° 04' 45" EAST 6.15 FEET; 8. SOUTH 89° 44' 4T' WEST 101.63 FEET; 9. NORT'H 00° 04' 45" EAST 26.41 FEET; 10. NORTH 89° 44' 47" EAST 171.87 FEET; 11. NORTH 00� 04' 45" EAST 306.50 FEET; 12. SOUTH 89° 44' 4T' WEST 98.03 FEET; 13. NORTH 00° 04' 45" EAST 44.15 FEET; 14. NORTH 30° 50' 20" WEST 119.70 FEET TO THE SOUTH LINE OF SAID MAGNESIA FALLS DRIVE 100.00 FEET WIDE; 15. ALONG SAID SOUTH LINE NORTH 89° 44' 47" EAST 434.81 FEET; 16. LEAVING SAID SOUTH LINE SOUTH 00° 04' 45" WEST 22.77 FEET; 17. NORTH 89° 44' 4T' EAST 155.92 FEET; 18. SOUTH 00° 04' 45" EAST 126.75 FEET; 19. NORTH 89° 44' 47" EAST 179.61 FEET TO THE SAID TRUE POINT OF BEGINNING. P64o2-oa>>�99ooga�s.do� Exhibit A EXHIBIT B SCHEDULE OF PERFORMANCE AcNvity Time Frame Comnletion of Construction of Proiect On or prior to July 31, 2009 Commencement of District's Use of Proiect On or prior to the commencement of the first semester of instruction following the completion of construction of the Project P6402-0411\990084v5.doc Exhibit B EXHIBIT C FORM OF MEMORANDUM OF AGREEMENT RECORDING REQUESTED BY: WHEN RECORDED RETURN TO: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attention: Executive Director �� [Space Above For Recorder's Use Only] The undersigned declaze that this Memorandum of Funding Agreement is exempt from recording fees pursuant to Government Code Section 27383 MEMORANDUM OF FUNDING AGREEMENT THIS MEMORANDUM OF FtJNDING AGREEMENT (this "Memorandum") is made as of , 2008, by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic (the "Agency"), and DESERT COMMLINITY COLLEGE DISTRICT, a community college district, duly organized and validly existing under the laws of the State of California (the "District"), with respect to the following recitals: RECITALS A. District and Agency have entered into that certain Funding Agreement dated as of , 2008 (the "Funding Agreement"), pursuant to which Agency has agreed to make certain payments to District, and District has agreed to restrict the use of certain premises located on that certain real property in the City of Palm Desett, County of Riverside, State of Califomia, and more particularly described on Exhibit A attached hereto (the "Property"), as provided in the Funding Agreement. B. District and Agency now desire to enter into this Memorandum to provide record notice of the Funding Agreement. AGREEMENT NOW, THEREFORE, the parties hereto hereby certify as follows: 1. Agency and District have entered into the Funding Agreement by which the Agency has agreed to make certain payments to the District, and District has agreed to restrict the use of the premises located on the Property for a stated period of time. P6402-0411t990084v5.dce Exhibit C 2. Puroose. This Memorandum is prepazed for the purposes of recordation only and in no way modifies the terms and conditions of the Funding Agreement. In the event any provision of this Memorandum is inconsistent with any term or condition of the Funding Agreement, the term or condition of the Funding Agreement shall prevail. A copy of the Funding Agreement is available for public inspection at the Agency's offices located at 73-510 Fred Waring Drive, Palm Desert, CA 92260. 3. Counterparts. 'This Memorandum may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, taken together, shall be deemed to be one and the same instrument. [This Space Intentionally Left Blank; Signatures Begin On The Next Page] r6ao2-oa> >`9vooga�s.ao� � Exhibit C 2 IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Funding Agreement as of the date first written above. AGENCY: ATTEST: Secretary PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Title: DISTRICT: DESERT COMMUNITY COLLEGE DISTRICT, a community college district, duly organized and validly existing under the laws of the State of California ay: J ,� 1� �.� 1��1 a 12G� Name: Title: /' .rt. �c�� P6402-04111990d84v5.doc Exhibit C 3 STATE OF CALIFORNIA COUNTY OF ' ;'� ��S i Ct�. On 1,I�n„� ��,t 5, d oo Q , before me, l� � �«� .�c� I��.6/«, a notary public, personally appeared � n,it Vt (7. �x�� �f n/� �-- ---- --------_ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(� is/a� subscribed to the within instrument and acknowledged to me that he/s�rq executed the same in his/h� authorized capacity(ies�, and that by his/1��r signature(s} on the instrument the person($) or the entity upon behalf of which the person(� acted, executed the instrument. I certify under PENALTY OF PERJiJRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and o�"icial seal. � COmml��lon � � 703934 s � �c�r vubuc • calfotnle � ���e�side CouMr 1 . .,n ��xD�c1i��10 � 7�.�-- . - (SEAL) ' � STATE OF CALIFORNIA 1 � i `, � Public i and �nr the Sta'fe o alifornia • �. COUNTY OF On , before me, , a notary public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. (SEAL) Notary Public in and for the State of California � ��- P6402-0411\990084v5.doc EXtllblt C 4 RESOLUTION NO. 159 A RESOLUTION OF THE BOARD OF TRUSTEES OF THE DESERT COMMUNITY COLLEGE DISTRICT AUTHORIZING PAYMENT BY THE PALM DESERT REDEVELOPMENT AGENCY FOR PART OF THE COST OF THE INSTALLATION AND CONSTRUCTION OF A PUBLIC SAFETY ACADEMY TO BE OWNED BY THE DISTRICT AND APPROVING A FUNDING AGREEMENT IN CONNECTION THEREWITH RECITALS: A. In order to effectuate the provisions of the Redevelopment Plan (the "Redevelopment Plan") for Project Area No.1 (the "Project Area") of the Palm Desert Redevelopment Agency (the "Agency"), the Agency and Desert Community College District (the "District") propose to enter into that certain Funding Agreement (the "Funding Agreement") pursuant to which the Agency will fund up to $2,000,000 in construction costs of a new public safety academy (out of a total cost of approximately $29 million) to be owned by the District and to be built on land owned by the District in the northeast corner of the College of the Desert campus which is located on Monterey Avenue in the City of Palm Desert, California (the "City"). The public safety academy (the "academy") will include classrooms, indoor and outdoor physical training areas, and laboratories for police and fire training. The Funding Agreement is on file in the office of the Clerk of the Board and available for public inspection. B. Pursuant to California Health and Safety Code Sections 33445 and 33679, on February 22, 2008, the Board of Trustees of the District (the "Board") held a duly noticed public hearing on the approval of the Agency's proposed payment of up to $2,000,000 for the construction of the academy pursuant to the Funding Agreement, at which time all persons desiring to comment on, or ask questions concerning, the payment of such monies and the Funding Agreement were given the opportunity to do so. Prior to the public hearing, information concerning the Agency's proposed payment of monies and the Funding Agreement were available for public inspection in the office of the Clerk of the Board in accordance with Health and Safety Code Section 33679. NOW, THEREFORE, THE BOARD OF TRUSTEES HEREBY FINDS, DETERMINES, RESOLVES AND ORDERS AS FOLLOWS: Section 1. The foregoing recitals are true and correct and a substantive part of this Resolution. Section 2. Based upon the foregoing and other information presented to the Board, the Board hereby finds and determines that no other reasonable means of financing the total construction costs of the academy are available to the District. Section 3. The Board hereby approves (a) the Funding Agreement, and (b) the payment of up to $2,000,000 to the District for the construction of the academy pursuant to the Funding Agreement. The Board hereby authorizes its President to execute and deliver the P6402\0001\Resolution 159.doc Funding Agreement in substantially the form presented to the Board at this meeting and now on file with the Clerk of the Board, with such additions thereto or changes therein as may be necessary or convenient and as the President may approve, in his discretion, as being in the best interests of the District, such approval to be conclusively evidenced by the President's execution and delivery thereof. PASSED, APPROVED and ADOPTED this V day of AC6(4(�i y .2008. a - WIV Presiden ATTEST: P6402\0001\Rewlution 159.doc 2