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Home My WebLink AboutFEP - 73920 El Paseo - CADO El Paseo 930 LLC CITY OF PALM DESERT STAFF REPORT REQUEST: CONSIDERATION OF FA�ADE ENHANCEMENT PROGRAM (FEP) FUNDING FOR PROJECT LOCATED AT 73-930 EL PASEO SUBMITTED BY: Martin Alvarez, Director of Economic Development APPLICANT: CADO EI Paseo 930 LLC 1545 Faraday Avenue Carlsbad, CA 92008 DATE: August 28, 2014 CONTENTS: Aerial Location Map Photos of Existing Building / Proposed Elevations FEP Agreement FEP Easement Recommendation By Minute Motion: 1. Approve a Fa�ade Enhancement Program Agreement with CADO EI Paseo 930 LLC in the amount not to exceed $49,999.99 for property located at 73-930 EI Paseo; 2. Appropriate $49,999.99 from the Economic Development Fund 425 for the subject Fa�ade Enhancement Program project. Executive Summary Approval of the request will approve a FEP funding agreement in the amount of $49,999.99 for front and rear building fa�ade improvements for property located within the guidelines of the Fa�ade Enhancement Program. Denial of the request will not approve the FEP funding. Backqround In October of 2013, the City Council approved the revised Fa�ade Enhancement Program Guidelines and reinstated the program funding with approximately $905,000 Staff Report FEP for 73-930 EI Paseo Page 2 of 3 August 28, 2014 coming from the sale of two city properties. The guidelines set a funding allocation of eighty percent (80%) to Highway 111 properties and twenty percent (20%) to EI Paseo sites on a first come, first serve basis. Proposed FEP Project 73-930 EI Paseo The property is located at 73-930 EI Paseo, east of San Luis Rey and consists of a single story building totaling 4,797 square feet. The building was formerly occupied by Draper's and Damon's, a women's apparel store. The property owner is proposing significant architectural modifications to the property's front (EI Paseo) and rear facades. The rear elevation faces Presidents' Plaza Parking Lot. The exterior improvements include modifications to the building's roof lines, exterior finish, color scheme and building signage. Both the front and rear faced fa�ade will be altered and will mirror each other, including the following features: • Changes to the building's main entry design. • Changes to the building's roofline. • New storefront window system. • New exterior tile finish. Attached please find the plans that illustrate the extent of the exterior fa�ade changes. Once the improvements are complete, a new retailer or restaurant user will be secured. The estimated construction cost is $500,000. FEP Eligibility: The property has a linear frontage of 50 feet. The current FEP guidelines allows for standard sized lots with 60-foot feet of frontage to receive consideration for half the cost of improvements to a maximum of $40,000 ($666.66/ liner foot), plus an additional 50% consideration for properties having duel frontages or backing up to the Presidents' Plaza parking lots. Based on the property's 50 foot linear frontage, the project is eligible for FEP consideration funds up to $33,333.33 on the EI Paseo frontage and one-half additional for the rear fa�ade ($16,666.66) for a total of$49,999.99. The FEP is intended to assist property owners improve their building facades, improve the City's image and create a better business environment for visitors and residents. In order to qualify, the improvements must be significant, approved by the City's Architectural Review Commission and are subject to City Council approval. The site is being significantly updated and improved. The proposed improvements will modernize the building with contemporary features that complement the EI Paseo corridor. The property owner is investing over $500,000 and bringing in a new tenant to a building that is currently vacant. G:IEcon Deve/opmentlFacade Enhancement ProgramV3930 El Paseo-CADO EI PaseolFEP-SR 8-28-14 73-930E1 Paseo.doc Staff Report FEP for 73-930 EI Paseo Page 3 of 3 August 28, 2014 Staff recommends approval of the FEP grant funding in the amount not to exceed $49,999.99, consistent with the current FEP guidelines. Committee Reviews: On June 24, 2014, the Architectural Review Commission approved the design of the farade. The motion carried on a 7-0-1, with Commissioner Vuksic absent. Fiscal Analvsis In June 2013, the City Council established a new Economic Development Fund utilizing proceeds from the sale of two City properties. The fund currently has $831,607. Eighty percent (80%) or $724,000 of the funds are committed to Highway 111 fa�ade enhancements and twenty percent (20%) or $181,000 are committed to EI Paseo fa�ades. This proposed fa�ade enhancement project will reduce the EI Paseo funding allocation to $56,000. The full eighty percent (80%) commitment for Highway 111 remains in place, with one application currently in process. Submitted By� Department Head: rtin Alvarez Rudy costa Director of Economic Development Assistant City Manager Reviewed By: CITY COUNCIL�'ION APPROVED � DF,NTFD RECEIVED OTHER ul S. Gibson, Director of Finance MEE G DATE � � p� AYES: � /� � � C1ll/�P� NOES: ova I: ABSENT: ABSTAIN: �- VERIFIED BY: OY3ginal on File with City lerk's Office o n M. 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T 1 �. . � � ._.__ N 'O. � .�� r ��f , l : k �. ... - ;�' � �i _� . ,6' r, � � , � - � "�� , �r� , „�� _ � 1 � 4 r �* ,�� ,.` - � � „ • . ."\ ��wu+�; t , ,. , ; � � y.. .. # �� . � s � , , A„ _ ; , ,; � � m : w _ - +� , �� I �Vt � „ � �_�d � �- � i -�-' _ "�� ,. � � 'w � � I �� ` �M . n Y� � �t �� _. ' �� d �� i w - . ,_�`r�. . . . " 'r '.!�' " . � z"e - a { - a. ,,,.�s:,., _._ . "-,N`�'. �. .� +-+n ,t ,. ��. _ SHADO..W M.O�UNTAIN DR . I SHADp � ��...�� 4 �. �. � '�,� � ��:�� ,��I' � � � - � M. t' � `��- '� �. `s{.e' � . � .e ` . ' -- � f r � � � � � r i tl� �I I {I � i . . +� ; ' � G�� 73-930 EI Paseo. � � APN: 627-222-027 ■ �' � � Uate � � ��'1FO�`'p'�� i/2014 v��ifJITY MAP FACADE ENHANCEMENT AGREEMENT THIS FACADE ENHANCEMENT AGREEMENT("Agreement"), made this day of , 2014, between CADO EI Paseo 930 LLC, a California limited liability company hereinafter called the"Owner" and the CITY OF PALM DESERT, a municipal corporation, hereinafter called the "City". NOW, THEREFORE, the parties agree as follows: BASIC PROVISIONS The Owner is the owner of the following certain real property hereinafter referred to as the "Property" whose address is: 73-930 EI Paseo, Palm Desert, CA 92260 The Property is more fully described as that certain real property situated in the City of Palm Desert, County of Riverside, State of California, described as follows: Lot 23 in Block "S" of Palm Desert Unit No. 1, in the City of Palm Desert, County of Riverside, State of California, as per map recorded in Book 21, Pages 50, 51, 52, 53 and 54 of Maps, in the office of the county recorded of said county. Owner's address for Notices if different from Property Address: CADO EI Paseo 930 LLC c/o Capstone Advisors, Inc. 1545 Faraday Avenue Carlsbad, CA 92008 RECITALS This Agreement is entered into with reference to the following facts: A. The City desires that the Improvements be made to the Property and is willing to assist the Owner therein, in accordance with this Agreement. B. The Owner is willing to make the Improvements and to convey an easemEnt to the City, in accordance with that certain Facade Easement dated the same date and G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 1 year as first above written. This Agreement, together with the Facade Easement, contains the entire agreement of the Owner and the City relating to the rights herein granted. C. Completion of the Improvements constituting the Project pursuant to this Agreement is in the best interests of the Agency and the City, and the health, safety and welfare of residents and taxpayers of the City, and is in accord with the public purposes and provisions of applicable state and local laws. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1. DEFINITIONS. Section 1.1. Definitions. The following terms, as used in this Agreement, shall have the meanings given unless expressly provided to the contrary: 1.1.1. City Consideration means the funds to be delivered by the City to the Owner upon the satisfactory completion of the Improvements. 1.1.2. Aqreement means this Facade Enhancement Agreement. 1.1.3. C� means the CITY OF PALM DESERT, a municipal corporation. 1.1.4. Improvements mean the permitted improvements allowable under the provisions and guidelines of the City of Palm Desert Facade Enhancement Program. 1.1.5. Project means the construction of the Improvements upon the Property. 1.1.6. Certification means the Certification of Completion (orPortion of Completion) Facade Enhancement Improvement form. ARTICLE 2. DEVELOPMENT OF THE PROPERTY. Section 2.1. Title to the Property The Owner represents and warrants that it possesses a fee simple interest in the Property as of the date of the execution of this Agreement. Section 2.2. Development of the Property 2.2.1. Taxes, Assessments, Encumbrances and Liens. The Owner shall pay when due all real property taxes and assessments assessed or levied on the Property and ar�y improvements thereon. Nothing herein contained shall be deemed to prohibit the Owner from contesting the validity or amounts of any tax assessment, encumbrance or lien, or to limit the remedies available to the Owner in respect thereto. 2.2.2 Local, State and Federal. The Owner shall carry out the construction of the Improvements in conformity with all City permits and all applicable laws. G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 2 2.2.3 Nondiscrimination Durinq Construction. The Owner shall not discriminate against any employee or applicant for employment because of age, sex, marital status, race, handicap, color, religion, creed, ancestry, or national origin in the construction of the Improvements. 2.2.4. Cost of Construction. The cost of developing and constructing the Improvements shall be borne solely by the Owner and shall not be an obligation of the City. 2.2.5. Scope of Development. The Owner hereby agrees to construct the Improvements on the Property in accordance with and within the limitations established in the City of Palm Desert's Facade Enhancement Program, it being agreed that construction of the Improvements is of the essence of this Agreement in view of the need for the Improvements within the City. In connection with such construction, the Owner shall comply with the plans and presentations, as approved by the Architectural Review Commission on June 24, 2014 and acceptable to the City of Palm Desert's Facade Enhancement Program. The City's obligation to deliver to the Owner the City Consideration is expressly contingent upon the satisfactory completion by the Owner of the Improvements in accordance with the plans and specifications previously accepted by the City. 2.2.6. Chanqes in Construction Drawings. If the Owner desires to make any changes in the Final Construction Drawings and related documents after their approval by the City, the Owner shall obtain all necessary City approvals and shall submit evidence of the same to the City of Palm Desert's Facade Enhancement Program for acceptance. 2.2.7 City Sign Riqhts. Throughout the course of construction of the Improvements, the Owner shall place a temporary sign on the Property, in a form approved by the City, indicating the City's participation in the rehabilitation of the Property. 2.2.8 City Publicitv Rights. City may publicize the participation of the Owner and Property in the Facade Enhancement Program. ARTICLE 3. CONSIDERATION TO OWNER. Section 3.1. City Consideration for the Owner's conveyance and delivery to the City of the Facade Easement, upon the timely completion of the construction of the Improvements in accordance with this Agreement, following inspection and approval by the City and upon receipt by the City of proper invoices or other written evidence of payment by the Owner that is acceptable to City, the City shall pay or deliver to the Owner or pay or deliver on behalf of the Owner, one-half of the costs incurred by the Owner in connection with the development and construction of the Improvements, including permit fees paid to the City, services provided by the City's employees, independent contractors and agents, and professional and materials costs, but shall not exceed $ 49,999.99 in the aggregate. City may deny payment if City staff determines that the costs are not reasonable or that G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 3 insufficient documentation exists as evidence of payment by the Owner for improvements at the Property. Any amounts previously paid or delivered to or on behalf of the Owner by the City for costs in connection with the development of the Improvements, such as architect fees, shall be deducted from the foregoing described payment. Section 3.2. City may terminate this Facade Enhancement Agreement and the Facade Easement at City's sole discretion if substantial Improvements exceeding ten percent(10%) of the overall proposed Improvements are not commenced within ninety(90) days or if all Improvements are not completed within one hundred eighty (180) days. ARTICLE 4. TRANSFERS AND SECURITY INTERESTS. Section 4.1. Limitation As To Transfer of the Propertv and Assiqnment of Agreement 4.1.1. If prior to the acceptance by City of the Improvements and Certification thereof, the Owner desires to assign, transfer or encumber the Property or any of tne Owner's rights in this Agreement to or in favor of any person or entity, no such assignment or transfer by the Owner shall be attempted without the prior written approval of the City. The City agrees to consider transfers, assignments or encumbrances proposed by the Owner to assist in the development of the Improvements in accordance with this Agreement, provided that the Owner shall remain fully liable to the City as provided in this Agreement until acceptance by City of the Improvements, and further provided, in the case of a transfer of the Property, that such transferee, by instrument in writing satisfactory to the City, and in a form recordable for itself and its successors and assigns and for the benefit of the City, shall expressly assume all of the obligations of the Owner under the Facade Easement and this Agreement, and shall agree to be subject to all the conditions and restrictions to which the Owner is subject hereunder. Such assumption shall not eliminate or reduce any of the obligations of the Owner under this Agreement. 4.1.2. The prohibitions of this Section 4.1 shall not apply to the Property subsequent to acceptance by City of the Improvements and Certification thereof, nor to a sale of the Property at foreclosure (or to a conveyance thereof in lieu of a foreclosure). The provisions of this Section 4.1 shall not be deemed to prevent the granting of easements or permits to facilitate the development and construction of the Improvements, nor to prohibit or restrict the leasing of any part or parts thereof for terms commencing after acceptance by City of the Improvements and Certification thereof. ARTICLE 5. USE OF THE PROPERTY. Section 5.1. Uses. The Owner covenants and agrees for itself, its successors and assigns that during construction and thereafterthe Owner, such successors and assignees shall use the Property in accordance with all applicable laws. The Owner shall not use the Property for any uses prohibited by applicable City zoning ordinances or resolutions. G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 4 Section 5.2. Obliqation to Refrain from Discrimination. There shall be no discrimination against or 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 Property, and the Owner (itself or any person claiming under or through the Owner) 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, sublessees, or vendees thereof or any portion thereof. Section 5.3. Form of Nondiscrimination and Non-segregation Clauses. The Owner shall refrain from restricting the rental, sale or lease of the 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 such 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, handicap, color, religion, creed, national origin or ancestry in the sale, lese, 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, sublessees or vendees 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 orthrough 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 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 G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 5 tenants, lessees, subtenants, sublessees or vendees of the land." Section 5.4. Effect and Duration of Covenants. Afterfinal inspection and approval, all of the terms, covenants, agreements or conditions set forth in this Agreement pertaining thereto shall cease and terminate co-terminus with the termination date of the Fa�ade Easement (five years, commencing on the date of recordation of the Fa�ade Easement and ending on the date that is five years thereafter. ARTICLE 6. DEFAULTS, REMEDIES AND TERMINATION. Section 6.1. Defaults - General. 6.1.1. Subject to the extensions of time set forth in Section 7.7, failure or delay by either party to perForm any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay, and shall complete such cure, correction, or remedy with reasonable diligence and during any period of curing shall not be in default. 6.1.2. The non-defaulting party shall give written notice of default to the party in default, specifying the default complained of by the injured party. Failure or delay in giving such notice shall not constitute a waiver of any default, nor shall it change the time of default. 6.1.3. Except as otherwise expressly provided in this Agreement, any failure or delay by either party in asserting any of its rights or 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 right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 6.2. Leqal Actions. 6.2.1. Institution of Leqal Actions. In addition to any other rights or remedies provided in Section 6.5, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in either the Superior Court of the County of Riverside, State of California, or in an appropriate municipal court in that County. 6.2.2. Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 6 6.2.3. Acceptance of Service of Process. If any legal action is commenced by the Owner against the City, service of process on the City shall be made by personal service upon the Executive Director or Secretary, or in such other manner as may be provided by law. If any legal action is commenced by the City against the Owner, service of process on the Owner shall be made by personal service upon either party identified as the Owner, or in such other manner as may be provided by law, whether made within or without the State of California. Section 6.3. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, 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 other party. Section 6.4. Inaction Not a Waiver of Default. Except as expressly provided in this Agreement to the contrary, 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 rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. Section 6.5. Remedies. 6.5.1. If either party defaults with regard to any of the provisions of this Agreement, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the default is not commenced to be cured within ten (10) days after service of the notice of default and is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement thereof, then the defaulting party shall be liable to the non-defaulting party for any damages caused by such default, and (i)the non- defaulting party may thereafter commence an action for damages against the defaulting party with respect to such default, and/or (ii) the non-defaulting party, at its option, may thereafter commence an action for specific performance of the terms of this Agreement pertaining to such default. 6.5.2. If the Owner shall assign or attempt to assign this Agreement, or shall sell, transfer, convey, assign, or lease the Property, in violation of this Agreement, then the City, at its option and upon 30 days written notice to the Owner, may terminate this Agreement. ARTICLE 7. GENERAL PROVISIONS. Section 7.1. Insurance. 7.1.1. Owner agrees to procure and maintain liability and property damage insurance throughout the term of the Agreement and any extension thereof in the following G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 7 minimum limits: Bodily Injury $ 500,000 each person $1,000,000 each occurrence $1,000,000 aggregate products & complete operations Property Damage $ 200,000 each occurrence $ 500,000 aggregate A combined single limit policy with aggregate limits in the amount of $1,000,000 will be considered equivalent to the required minimum limits. 7.1.2. The Owner shall procure and maintain, at his sole expense, Worker's Compensation Insurance in such amounts as will fully comply with the laws of the State of California or obtain Certificates of Insurance evidencing the above insurance coverage from all contractors. The Certificate of Insurance shall provide that said insurance may not be amended or canceled by the carrier, for nonpayment of premiums or otherwise, without ten (10) days prior written notice of amendment or cancellation to Owner. 7.1.3. The Owner shall indemnify, hold harmless and defend the City and its officers and employees, from and against all claims, damages, losses, and expenses, including but not limited to attorneys fees, arising out of or resulting from construction of the Improvements, regardless of whether or not such claim, damage, loss or expense is cause in part by the City. In claims against the City by any employee or subcontractor of the Owner, the indemnification obligation under this Section 7 shall not be limited by a limitation upon amount or type of damages, compensation or benefits payable by or for the Owner under worker's compensation, disability, or other benefits laws. Section 7.2. Notices, Demands and Communications Between the Parties. Notices, demands and communications between the City and the Owner shall be deemed sufficiently given if dispatched by registered or certified mail, postage prepaid, return receipt requested, to the principal offices of the City and the Owner. Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate by mail as provided in this Section. Section 7.3. Conflicts of Interest. No member, official or employee of the City or the Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement that is prohibited by law. Section 7.4. Warrantv Aqainst Payment of Consideration for Agreement. The Owner warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. G:1Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 8 Section 7.5. Warranty Against Collusion with Paid Parties. The Owner warrants that it has not, nor will not in connection with this Project, enter into any agreement whereby a paid party that Owner requests Consideration from City returns to Owner some portion of said payment in any manner whatsoever. Section 7.6. Nonliability of Aqency and City Officials. No member, official or employee of the Agency or the City shall personally be liable to the Owner, or any successor in interest of the Owner, in the event of any default or breach by the City or for any amount which may become due to the Owner or successor or on any obligation under the terms of this Agreement. Section 7.7. Enforced Delay: Extension of Times of Performance. In addition to specific provisions of this Agreement, delay in perFormance by either party hereunder shall not be a default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; unusually severe weather; or any other causes beyond the control or without the fault of the party claiming an extension of time to perform. An extension of time for any such cause shall only be for the period of the enforced delay, which period shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty(30) days prior to the giving of such notice. Section 7.8. Approvals bv City and Owner. Wherever this Agreement requires the City and the Owner to approve any contract, document, plan, proposal, specification, drawing or other matter, such approval shall not unreasonably be withheld. Section 7.9. Plans and Data. Where the Owner does not proceed with the construction of the Improvements, and when this Agreement is terminated with respect thereto for any reason, the City shall be entitled to retain any and all plans and data pertaining thereto which are in the possession of the City to the extent such plans and data are not confidential or contain proprietary information. Section 7.10.Entire Aqreement, Waivers and Amendments. The Agreement is executed in duplicate originals, each of which is deemed to be an original. This Agreement, together with all attachments and exhibits hereto, constitutes the entire understanding and agreement of the parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. Any waiver or modification of any provision of this Agreement must be in writing and signed by the party to be charged. Acceptance by the City of this Agreement is evidenced by the signature of its City Manager. G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\FEP-Agreement 73930 EI Paseo.doc 9 IN WITNESS WHEREOF, the Owner has entered into this Agreement as of the day and year first above written and has hereunto duly executed this document the day of , 2014. OWNER: CADO EI Paseo 930 LLC Property Owner The City accepts this Agreement as of the day of , 2014. CITY OF PALM DESERT, A Municipal Corporation By: John M. Wohlmuth, City Manager G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI PaseolFEP-Agreement 73930 EI Paseo.doc 10 RECORDING REQUESTED BY City of Palm Desert AND WHEN RECORDED MAIL TO City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: Facade Enhancement Program FEP No. 73-930 EI Paseo A.P.N. 627-222-027 No Recording Fee Required per Government Code Section 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE FACADE EASEMENT THIS FACADE EASEMENT made this day of , 2014, between CADO EI Paseo 930 LLC, a California limited liability company hereinafter called the "Grantor", and the CITY OF PALM DESERT, a municipal corporation, hereinafter called the "Grantee". The Grantor is the owner of certain real property located in the City of Palm Desert, County of Riverside, State of California, which property is hereinafter referred to as the "Property" and is more particularly described as follows: 73-930 EL PASEO, PALM DESERT, CA 92250 LOT 23, IN BLOCK "S" OF PALM DESERT UNIT NO. 1, IN THE CITY OF PALM DESERT, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA. AS PER MAP RECORDED IN BOOK 21, PAGES 50, 51, 52, 53 AND 54 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. RECITALS A. The Grantor wishes to impose certain limitations and restrictions on the use and development of the Property in order to preserve its exterior appearance; and B. This grant of an easement by the Grantor to the Grantee, and the declaration of restrictive covenants by the Grantor, will assist in preserving and maintaining the exterior appearance of the Property. G:\Ewn Development\Facade Enhancement Program\73930 EI Paseo-CADO EI PaseolFacade Easement 73930 EI Paseo.doc 1 C. The term of this easement is five years, commencing on the date of recordation hereof and ending on the date that is five years thereafter. On that date, Grantee shall execute in recordable form a release of this Facade Easement. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, and by stating their intention to be legally bound hereby and in consideration of the promises herein contained and set forth in that certain Facade Enhancement Agreement dated concurrently herewith,the Grantor does hereby grant and convey unto the Grantee a Facade Easement, hereinafter called the"easement", as more particularly described below, in and to preserve the improvements located on the Property. 1. The easement granted herein, to be of the nature and character hereinafter further expressed, shall constitute a binding servitude upon said Property, and to that end the Grantor hereby covenants on behalf of itself and its heirs, successors, and assigns, with the Grantee, its successors and assigns, such covenants being deemed to run as a binding servitude, with the land, to do and to refrain from doing upon the Property each of the following stipulations, which contribute to the public purpose in that they aid significantly in the preservation of the site in question, and hereby declare and impose the restrictions described herein upon the use and enjoyment of the Property. 2. Without the express written permission of the Grantee signed by its duly authorized representative, no building or other structure shall be built or maintained on the Property other than those buildings or structures which are as of this date located on the Property, and no alteration or any other thing shall be undertaken or permitted to be undertaken to the exterior of ti�e buildings and improvements on the Property,which would materially affect its appearance(including the landscape); provided, however, that the maintenance of presently existing parts or elements of the land and reconstruction, remodeling, alteration, repair, repainting, or refinishing of existing improvements shall be permitted without such written permission of the Grantee,except as provided in Paragraph 3 herein below with respect to the main structures. It is anticipated that the Grantee may, but shall not in any way be required to, approve the construction of additional structures incidental to the existing building. 3. Grantor shall keep and maintain the exterior facade on the Property in good condition and repair throughout the term hereof. 4. Without the express written permission of the Grantee, no construction, alteration, or remodeling or any other thing shall be undertaken or permitted to be undertaken on the existing buildings,which would affect their exterior(including the roofs); provided, however,that the maintenance, reconstruction, repair, repainting, or refinishing of the exterior of the existing building, damage to which has resulted from casualty loss, deterioration, or wear and tear, shall be permitted without such written permission of the Grantee, provided that such maintenance, reconstruction, repair, repainting, or refinishing is performed in a manner which will not materially alter the external appearance thereof as they are as of this date. 5. The Grantee shall also have the right to enter onto the Property and perForm any deferred maintenance thereon as may be necessary to keep same in good condition and repair. The Grantee shall not undertake any such maintenance or repair until 30 days after depositing written notice thereof to the Grantor in U.S. mail, postage prepaid, addressed to the street address for the Property. Such notice shall identify each item of maintenance and repair required to restore the landscaping and exterior facade on the Property to good condition and repair. All costs of maintenance performed by the Grantee hereunder shall be paid by the Grantor or reimbursed to the Grantee by the Grantor within ten (10)days following the Grantee's deposit of demand therefore in G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\Facade Easement 73930 EI Paseo.doc 2 U.S. mail, postage prepaid, addressed to the street address for the Property. The Grantor's obligation to reimburse the Grantee shall be secured by a lien encumbering the Property,which lien shall be enforceable in accordance with the provisions of California Civic Code Section 2924 et.seq. 6. In addition to the foregoing, in the event of a violation of any covenant or restriction herein, the Grantee may, following reasonable notice to the Grantor, institute a suit to enjoin such violation and to require the restoration of the Property to its prior condition. The Grantee shall also have available all legal and equitable remedies to enforce the Grantor's obligations hereunder, and in the event the Grantor is found to have violated any of its obligations,the Grantor shall reimburse the Grantee for any costs or expenses incurred in connection therewith, including court costs and attorneys' fees. 7. There shall be no depositing or dumping of solid or liquid refuse,waste, or junk upon the Property, excepting refuse and junk disposal as has customarily been practiced on the Property prior to this grant and declaration, and excepting effluent from buildings and structures incidental to uses thereof,the disposal of which shall, however, be subject to all the laws, rules, and regulations of the City of Palm Desert. 8. The easement granted herein shall be assignable by the Grantee to any public entity having jurisdiction over the Property. 9. This instrument shall bind the heirs, representatives, successors and assigns of the Grantor, and shall inure to the benefit of the Grantee, its successors and assigns. 10. This instrument and the Facade Enhancement Agreement dated the same date and year as first above written contains the entire agreement of the Grantor and the Grantee relating to the rights herein granted. Any modifications concerning this instrument shall be valid only if in writing and signed by the party to be charged. 11. Representatives of the Grantee shall be permitted at reasonable times,which times shall be established in advance by the Grantee by ten (10) days notice, to come upon the Property; (i) to inspect for violation of any of the covenants herein, except that if the Grantee has reasons to believe that violations are occurring or have occurred,the Grantee shall not be obligated to give said ten (10)days notice nor any other notice whatsoever; and (ii) in its discretion,to display a small marker or sign which states the name of the Grantee and advises that the Grantee owns the easement granted herein and any other pertinent information. With respect to (i)of this Paragraph, it is anticipated that the Grantee, by notice to the Grantor, will establish a date upon which the Grantee shall come upon the Property each year to inspect for violation of any of the covenants herein, and in such event said ten (10) days notice shall not thereafter be required for such annual inspections. 12. Except as provided herein,the Grantor reserves unto itself all rights, privileges, powers, and immunities in and to the Property, including without limitation the right of exclusive possession and enjoyment. 13. The covenants agreed to and the restrictions imposed, as aforesaid, shall be binding not only upon the Grantor, but also upon their heirs, successors and assigns, and all other successors to it in interest, and shall continue as a servitude running in perpetuity with the Property and shall survive the death of the Grantor or any termination of the Grantee's existence. G:\Econ Development\Facade Enhancement ProgramV3930 EI Paseo-CADO EI Paseo\Facade Easement 73930 EI Paseo.doc 3 14. Acceptance by the Grantee of this grant is evidenced by the signature of its City Manager. IN WITNESS WHEREOF, the Grantor has entered into this agreement as of the date and year first above written and has hereunto duly executed this document the day of , 2014. Grantor: CADO EI Paseo 930 LLC Property Owner The Grantee accepts this Grant of Easement as of the day of , 2014. CITY OF PALM DESERT, A Municipal Corporation By: John M. Wohlmuth, City Manager G:\Econ Development\Facade Enhancement Program\73930 EI Paseo-CADO EI Paseo\Facade Easement 73930 EI Paseo.doc 4 State of California }SS } County of } On , 20 , 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. 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