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HomeMy WebLinkAboutR27670 - DesertarcPALM DESERT REDEVELOPMENT AGENCY STAFF REPORT REQUEST: APPROVAL OF CONTRACT NO. R27670 BETWEEN THE PALM DESERT REDEVELOPMENT AGENCY AND DESERTARC ESTABLISHING A FAQADE EASEMENT PURCHASE AGREEMENT IN CONSIDERATION FOR FINANCIAL ASSISTANCE IN AN AMOUNT NOT -TO -EXCEED $60,000 FOR THE INSTALLATION OF ENERGY SAVING IMPROVEMENTS AT ITS FACILITY LOCATED AT 73-255 COUNTRY CLUB DRIVE SUBMITTED BY: CATHERINE WALKER, SENIOR MANAGEMENT ANALYST DEVELOPER: DESERTARC 73-255 COUNTRY CLUB DRIVE PALM DESERT, CA 92260 DATE: OCTOBER 23, 2008 CONTENTS: FAQADE EASEMENT PURCHASE AGREEMENT FAQADE EASEMENT AGREEMENT Recommendation: By Minute Motion, that the Agency Board: 1. Approve Contract No. R27670 Fagade Easement Purchase Agreement allowing for financial assistance in an amount not -to -exceed $60,000 for the installation of energy savings improvements; 2. Authorize the Executive Director to approve additional energy efficient equipment and/or improvements; and 3. Appropriate funds to Account No. 851-4627-466-4001. Executive Summary: Approval of staff recommendation will allow for the implementation of the Fagade Easement Purchase Agreement between DesertArc and the Palm Desert Redevelopment Agency establishing a Fagade Easement for assistance for the purpose of implementing improvements in the area of energy savings. This Agreement will work to help the Redevelopment Agency and City meet policy objectives while providing Staff Report Approve Contract R27670 with DesertArc for the Purchase of a Facade Easement Page 2 of 2 October 23, 2008 financial relief to DesertArc to assist in providing a valuable service to the developmentally disabled in the City and the greater Coachella Valley. Discussion: On December 20, 2007, staff was authorized to explore assistance to DesertArc in the areas of affordable housing, water conservation, and energy savings. Based on an energy audit performed by SCE and inspection of the air conditioning units, staff recommended participation in the area of energy savings. The Agency Board action of May 8, 2008, approved assistance for the implementation of energy efficiencies, and authorized the preparation of an easement agreement to facilitate the funding. DesertArc is to receive funding in an amount not -to -exceed $60,000 for the implementation of energy efficiencies as established through SCE recommendations, the air conditioning replacement program, and other energy efficiency measures as approved and reviewed by the Office of Energy Management. Approval of staffs' recommendation will allow for the establishment of a Facade Easement, and the Agency's participation in the implementation of energy efficiency measures at the DesertArc facility. Submitted By: Catherine Walker Senior Management Analyst Approval: sti McCarthy CM Redevelopmen Carlos L. Ort Executive Dir ctor Department Head: �---'"Dave Y=fRedevelo Direct opment/Housing Paul S. sorY Directo f ina 6bY RDA ON 0- 09 3'('-J�() VERiPIED B`/ fC)K-/M I G: rda Cathy Walker Word Data STAFF REPORTS Staff Report Desert Arc doc FACADE EASEMENT PURCHASE AGREEMENT THIS FACADE EASEMENT PURCHASE AGREEMENT (this "Ageement"), dated as of , 2008 (the "Effective Date"), is entered into by and between the PALM DESERT REDEVELOPMENT AGENCY, a public body, corparate and politic (the "Agency") and DESERTARC, a California public benefit nonprofit corporation (the "Owner"). RECITALS This Agreement is entered into with reference to the following facts: A. Owner is owner in fee simple of certain real property located in the City of Palm Desert, California (the "City") and which is more particularly described on Exhibit A attached hereto and made a part hereof (the "Owner Parcel"). B. The Agency is a public body, corporate and politic, exercising governmental functions and powers, and organized and existing under the Community Redevelopment Law of the State of California. C. The Owner currently operates on the owner Parcel a facility to maintain, foster and provide advocacy services for the education, vocational training, counseling, and care of persons who have intellectual and/or other physical developmental disabilities (the "Campus") D. Owner has acquired and installed, or will acquire and install, within the Campus certain air conditioning and other energy efficient equipment and/or improvements. The installation of such air conditioning and other energy efficient equipment and/or improvements has assisted or will assist in the elimination of blight in the Agency's survey area for Project Area No. 2 of the Agency (the "Project Area"). E. Agency is prepared to reimburse the Owner for certain costs associated with the equipment and/or improvements described in Recital D, and the Owner in return is prepared to grant to the Agency a facade easement over and upon the Property. F. Agency has determined that the reimbursement of the Improvement Cost (as hereinafter defined) and the acquisition of the facade easement as provided in this Agreement are consistent with the provisions of the Redevelopment Plan for the Project Area and each of its applicable elements. 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 A�encv means the Palm Desert Redevelopment Agency, a public body, corporate and politic. P6402-0201\1084329v3.doc 1.1.2 A�encv Consideration means the funds to be delivered by Agency to Owner upon the recordation of the Facade Easement Agreement as described in Section 3.1. 1.1.3 A�reement means this Facade Easement Purchase Agreement. 1.1.4 Campus is described in Recital C hereof. 1.1.5 Citv means the City of Palm Desert, a municipal corporation. 1.1.6 Facade Easement means the non-exclusive facade easement described in Section 2.2 to be granted by Owner to Agency, pursuant to the terms of the Facade Easement Agreement. part hereof. 1.1.7 Facade Easement A�reement is attached hereto as Exhibit C and made a 1.1.8 Improvements means the air conditioning and other energy efficient equipment and/or improvements described in Exhibit B attached hereto and made a part hereof. 1.1.9 Imnrovements Cost means the cost of the acquisition and installation of the Improvements incurred by the Owner. 1.1.10 Project means the installation of the Improvements within the Campus. ARTICLE 2 DEVELOPMENT OF THE OWNER PARCEL. Section 2.1 Title to the Owner Parcel. Owner represents and warrants that it possesses a fee simple interest in the Owner Parcel as of the date of the execution of this Agreement. Section 2.2 Facade Easement. Owner agrees to grant to Agency, prior to the initial payment of the Agency Consideration, a non-exclusive facade easement in gross to preserve and maintain the exterior of the improvements located on the Owner Parcel (the "Facade Easement"). The Facade Easement shall remain in effect for a term of fifteen (15) years, and the Facade Easement shall be created and granted to the Agency pursuant to the Facade Easement Agreement. Section 2.3 Cost of Acauisition and Installation of Imnrovements. The cost of acquiring and installing the Improvements has been incurred and paid, or will be incurred and paid, solely by the Owner. The Owner represents to the Agency that all Improvements have been, or will be, acquired and installed in the Campus in conformance with all applicable laws including all federal, state and local occupation, safety and health laws, rules, regulations and standards. Without limiting the foregoing, Owner shall acquire and install the Improvements in full compliance with all applicable provisions of state, federal and local prevailing wage laws and all rules and regulations promulgated pursuant thereto. Owner agees to indemnify, defend and hold Agency harmless from and against any cost, expense, claim, charge or liability relating P6402-0201 \ 1084329v3.doc -2- to or arising directly or indirectly from any breach or failure of Owner or its contractors or agents to comply with such laws, rules or regulations. The indemnification obligations described in this Section 2.3 shall survive the termination of this Agreement. Section 2.4 'I'axes, Assessments, Encumbrances and Liens. Owner shall pay when due all real property taxes and assessments assessed or levied on the Owner Parcel and any improvements thereon. Nothing herein contained shall be deemed to prohibit Owner from contesting the validity or amounts of any tax assessment, encumbrance or lien, or to limit the remedies available to them in respect thereto. ARTICLE 3 AGENCY CONSIDERATION AND CONDITIONS. Section 3.1 A�encv Consideration. In consideration for Owner's granting of the Facade Easement to the Agency, and upon the satisfaction of the conditions precedent set forth in Section 3.2, and recordation of the Facade Easement Agreement in accordance with this Agreement, Agency shall pay or deliver to Owner an amount not to exceed Sixty Thousand Dollars ($60,000) (the "Agency Consideration"). Partial payments of the Agency Consideration shall be made upon Owner's submission for written payment requests to the Agency with respect to Improvements which have been acquired and installed by the Owner and are operational. The payrnent request submittals shall specify the amount of the Improvements Cost for which payment is requested and shall be in such form and substance as the Agency shall reasonably require, including appropriate lien waivers and receipts for payment from contractors and vendors. Subject to the satisfaction of the conditions precedent to the payment of the Agency Consideration set forth in Section 3.2 below, within thirty (30) days following Owner's submittal of payment requests, the Agency shall pay to Owner the amount of each submitted payment request. Owner shall request the final payment of the balance of the Agency Consideration on or before the date that is three hundred sixty-five (365) days after the Effective Date or Owner shall be deemed to have waived, released and relinquished all of its rights to receive any further payment of the Agency Consideration. Section 3.2 A�encv's Conditions Precedent. Agency's obligation to make the initial and all subsequent payrnents of the Agency Consideration to Owner is subject to the following conditions precedent: ' 3.2.1 Receipt of Evidence of Acauisition and Installation of Imnrovements. The Owner shall have submitted to the Agency payment requests with respect to Improvements then purchased and installed within the Campus and which are operational. 3.2.2 Recordation of Facade Easement A�reement. The concurrent recordation of the Facade Easement Agreement. 3.2.3 Default. No Default (as hereinafter defined) on the part of Owner shall exist, nor shall there be any condition or circumstance that would, with notice or the passage of time, or both, constitute a Default on the part of Owner. P6402-0201 U 084329v3.doc -3- 3.2.4 Good Standing. Owner shall have delivered to Agency reasonable evidence that Owner is then in good standing and qualified to do business in the State of California. If all of the foregoing conditions precedent are not completed to Agency's satisfaction on or before sixty (60) days following the Effective Date, then Agency may, in its sole and absolute discretion, waive any such condition precedent or terminate this Agreement upon notice to Owner. ARTICLE 4 TRANSFERS AND SECURITY INTERESTS,. Section 4.1 Limitation As To Transfer of the Owner Parcel and Assignment of A�reement. 4.1.1 Prior to payment of the Agency Consideration, or the termination of the Agency's obligation to pay such consideration as provided in Sections 3.1 or 3.2 above, Owner shall not assign or transfer the Owner Parcel or any of Owner's rights or obligations under this Agreement, to or in favor of any person or entity, without the prior written approval of Agency. Agency agrees to consider transfers or assignments proposed by Owner to assist in the development of the Campus; provided that Owner shall remain fully liable to Agency as provided in this Agreement, and further provided, in the case of a transfer of the Owner Parcel, that such transferee, by instrument in writing reasonably satisfactory to Agency, shall expressly assume all of the obligations of Owner under this Agreement, and shall agree to be subject to all the conditions and restrictions to which Owner is subject hereunder. Such assumption shall not eliminate or reduce any of the obligations of Owner under this Agreement. 4.1.2 The provisions of this Section 4.1 shall not apply to a sale of the Owner Parcel at foreclosure (or to a conveyance thereof in lieu of a foreclosure). ARTICLE 5 USE OF THE OWNER PARCEL Section 5.1 Use. Owner covenants and agrees for itself, and its successors and its assigns, that for a period of fifteen (15) years from the Effective Date Owner and its successors and assigns shall use the Owner Parcel in accordance with all applicable laws and only for the purposes described in Recital C above. Section 5.2 Obligation 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 Owner Parcel, and Owner (itself or any person claiming under or through 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, assignees, or vendees thereof or any portion thereof. P6402-0201\1084329v3.doc -4- Section 5.3 Form of Nondiscrimination and Nonse�re�ation Clauses. The Owner shall refrain from restricting the rental, sale or lease of the Owner Parcel or any portion thereof, on the basis of sex, age, handicap, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts for sale shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 5.3.1 In deeds: "The Grantee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through them, that there shall be no intentional 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, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises herein conveyed, nor shall the Grantee himself or herself, or any person claiming under or through him or her, establish or permit any 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 premises herein conveyed. The foregoing covenants shall run with 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 Section 12955.9 of the California 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 California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragraph." 5.3.2 In leases: "The lessee herein covenants by and for himself or herself, his or her heirs, executors, administrators and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: That there shall be no intentional 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, in the leasing, subleasing, transferring, use or occupancy, tenure or enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person claiming under or through him or her, 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 premises 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 affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of P6402-0201\1084329v3.doc -5- the California Civil Code, relating to housing for senior citizens. Subdivision (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." 5.3.3 In contracts: "The contracting party or parties hereby covenant by and for himself or herself and their respective successors and assigns, that there shall be no intentional 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, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the contracting party or parties, any subcontracting party or parties, or their respective assigns or transferees, establish or permit any such practice or practices of discrimination or segregation. 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 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 Civil Code and subdivisions (n), (o) and (p) of Section 12955 of the California Government Code shall apply to said paragaph." Section 5.4 Effect and Duration of Covenants. The terms, covenants, agreements and conditions contained in the following Sections hereof shall remain in effect for the following periods: 5.4.1 Section 5.1 shall remain in effect for the term described therein. 5.4.2 Sections 5.2 and 5.3 shall remain in effect in perpetuity. Section 5.5 Owner's Right to Purchase Easement. Notwithstanding anything to the contrary contained herein, the Owner at its option may purchase the Facade Easement from the Agency at the times and for the purchase price set forth in Exhibit D attached hereto and made a part hereof. The Owner shall provide written notice to the Agency of its decision to purchase the Facade Easement. Such notice shall specify the purchase price as provided in Exhibit D and shall be delivered to the Agency at least thirty (30) days prior to the date of acquisition. The Agency and Owner shall open an escrow for such purpose within five (5) business days of the Agency's receipt of the notice of purchase. The Agency and Owner agree to execute and record such documents and instruments as are reasonably required to complete the purchase of the Facade Easement. P6402-0201 \ 1084329v3.doc -6- 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 performance shall 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 applicable cure period permitted by this Agreement shall not be in default hereunder. 6.1.2 The non-defaulting party shall give written notice to the defaulting party specifying the Default. If the Default is not commenced to be cured within ten (10) days after delivery of the notice of Default or is not cured promptly in a continuous and diligent manner within a reasonable period of time after commencement thereof, then the non-defaulting party shall have the rights and remedies herein provided. 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 Ri�hts and Remedies are Cumulative. Except as otherwise expressly provided 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 6.3 Remedies. 6.3.1 Owner's sole remedies for Agency's Default under this Agreement shall be (a) to institute an action to seek mandamus or specific performance of the terms of this Agreement, or (b) to terminate this Agreement. 6.3.2 Notwithstanding anything to the contrary contained herein, if any Default by Owner occurs prior to Agency's payment of the Agency Consideration, then Agency's sole remedy shall be to terminate this Agreement, in which case Agency shall be released from any and all further obligations to Owner. 63.3 In the event of any Default by Owner after payment of the Agency Consideration for the Facade Easement, Agency shall be entitled to all damages proximately caused by such breach and to pursue all remedies available at law or in equity, including an injunction and/or specific performance, and a refund of the Agency Consideration. P6402-0201\1084329v3.doc -%- 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 for the Facade Easement described in Section 2.2 above in the following minimum limits: Bodily Injury $ 500,000 $1,000,000 $1,000,000 each person each occurrence aggregate products and complete operations Property Damage $ 200,000 $ 500,000 each occurrence aggregate A combined single limited policy with aggregate limits in the amount of $1,000,000 will be considered equivalent to the required minimum limits. 7.1.2 Owner shall indemnify, hold harmless and defend the Agency and the City and their respective officers and employees, from and against all claims, damages, losses, and expenses, including but not limited to reasonable attorneys fees, arising out of or resulting from (i) any act or omission of Owner or its licensees, invitees, agents or employees, on or adjacent to the Owner Parcel or Campus, and (ii) any accident, injury, death or damage to any person or property occurring in, on or about the Owner Parcel ar the Campus. The Owner's indemnity obligations contained in this Section 7.1.2 shall not extend to any claims, damages, losses or expenses incurred by the Agency or the City or their respective officers or employees to the extent that such claims, damages, losses or expenses are caused by or contributed to by the negligence or misconduct of the Agency or the City or their respective officers or employees, as finally determined by a court of competent jurisdiction. Section 7.2 Notices, Demands and Communications Between the Parties. All notices and demands shall be given in writing by certified mail, postage prepaid, and return receipt requested, or by personal delivery. Notices shall be considered given upon the earlier of (a) personal delivery, (b) the date sent by facsimile (provided that the sender of such communication shall electronically confirm receipt thereof by the appropriate parties and shall send a copy of such communication to the appropriate parties within one (1) business day of such facsimile by any other method permitted hereunder), (c) three (3) business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested or (d) the next business day after deposit with a nationally reorganized overnight courier, in each instance addressed to the recipient as set forth below. Notices shall be addressed as provided below for the respective party; provided that if any party gives notice in writing of a change of name or address, notices to such party shall thereafter be given as demanded in that notice: P6402-0201 \1084329v3.doc -g- Owner: Desertarc 73-255 Country Club Drive Palm Desert, California 92260 Attention: Mr. Gene Rogers Telephone: ((760) 346-1611 Fax: (760)773-0933 with a copy to: Attention: Telephone: Fax: Agency: Palm Desert Redevelopment Agency 73-510 Fred Waring Drive Palm Desert, California 92260 Attn.: Ms. Catherine Walker Phone: (760) 346-0611 Fax: (760) 341-6372 Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 Attn.: Jim G. Grayson, Esq. Phone: (213) 626-8484 Fax: (213) 626-0078 Section 73 Conflicts of Interest. No member, official or employee of Agency shall have any direct or indirect interest in this Agreement, nor participate in any decision relating to the Agreement which is prohibited by law. Section 7.4 Warrantv A�ainst Pavment of Consideration for A�reement. 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. Section 7.5 Nonliabilitv of A�encv and Citv Officials. No member, official or employee of Agency or City shall personally be liable to Owner, or any successor in interest of Owner, in the event of any Default by Agency, or for any amount which may become due to Owner or its successors or assigns under the terms of this Agreement. P6402-0201 \ 1084329v3.doc -9- Section 7.6 Memarandum of A�reement. At the Agency's request, a memorandum of this Agreement shall be executed by Owner and recorded with the County Recorder of the County of Riverside. Section 7.7 Enforced Delav: Extension of Times of Performance. Delay in the performance by either party of its obligations hereunder shall not be a Default when such delays 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. Section 7.8 Challen�e to Validitv. In the event of any challenge to the validity of this Agreement, then, at the option of the Agency, either (i) Owner shall either defend such challenge at the cost and expense of the Owner, with counsel reasonably satisfactory to Agency, or (ii) Owner shall reimburse Agency, upon demand, for the reasonable costs and expenses incurred by Agency in defending same, including reasonable attorneys fees. Section 7.9 Release of A�encv Officials. No official, agent or employee of Agency or City shall be personally liable to Owner, or any successor in interest of the Owner, in the event of any default or breach by Agency or for any amount which may become due to Owner or its successors, or on any obligations under the terms of this Agreement. Section 7.10 Authoritv to Execute. The persons executing this Agreement on behalf of Owner warrant and represent that they have the authority to execute this Agreement on behalf of their corporation, partnership or business entity and warrant and represent that they have the authority to bind Owner to the performance of its obligations hereunder. Section 7.11 Successors and Assi�ns. The provisions of this Agreement shall be binding upon, and inure to the benefit of, Agency and Owner, and their respective successors and assigns, as the case or context may require. Section 7.12 No Joint Venture. Nothing contained in this Agreement shall be construed to render Agency in any way or far any purpose a partner, joint venturer, or associated in any relationship with Owner, nor shall this Ageement be construed to authorize any party to act as agent for the other. Section 7.13 Entire A�reement. Waivers and Amendments. 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 Ageement must be in writing and signed by the party to be charged. P6402-020 l \ 1084329v3.doc -10- Section 7.14 Authoritv of Executive Director. Notwithstanding anything to the contrary contained herein, without further authorization of the Board of Directors of the Agency, the Executive Director of the Agency may consent to and execute any amendment to this Agreement which does not alter or change a material term or provision hereof. Section 7.15 Applicable Law. The laws of the State of California shall govern the interpretation and enforcement of this Agreement. Section 7.16 Execution in Counternarts. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. Section 7.17 Severabilitv. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement ar the application of such term or provision shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. Section 7.18 Termination of A�reement. Except as otherwise provided herein to the contrary, this Agreement shall terminate and be of no further force or effect upon the earlier of (i) the expiration of the fifteen (15) year term of the Facade Easement described in Section 2.2, or (ii) upon the Owner's purchase of the Facade Easement as provided in Section 5.5. Section 7.19 Exhibits. All Exhibits attached hereto are incorporated herein as if set forth fully in this Agreement. P6402-0201\1084329v3.doc - l l - IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the day and year first above written. APPROVED AS TO FORM: Richards Watson & Gershon, Agency Counsel AGENCY: PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic By: Name: Jean M. Benson Title: Chairman ATTEST: Rachelle D. Klassen, Secretary (Signatures continued on next page) P6402-0201\1084329v3.doc -12- OWNER: DESERTARC, a California public benefit nonprofit corporation By: Name: Title: By: Name: Title: P6402-0201\1084329v3.doc -13- EXHIBIT A LEGAL DESCRIPTION OF THE OWNER PARCEL The land referred to herein is situated in the State of California, County of Riverside, City of Palm Desert, described as follows: THE WEST 7%z ACRES OF THE WEST 15 ACRES OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION B, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE NORTH 44 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED APRIL 14, 1958 IN BOOK 2254 PAGE 592 OF OFFICIAL RECORDS; ALSO EXCEPTING THEREFROM THE SOUTH 11 FEET OF THE NORTH 55 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED OCTOBER 1, 1976 AS 1NSTRUMENT NO. 147669 OF OFFICIAL RECORDS; ALSO EXCEPTING THEREFROM 1/16T" OF ALL COAL, OIL, GAS, AND OTHER MINERAL DEPOSITS IN SAID LAND, AS RESERVED IN PATENT FROM STATE OF CALIFORNIA, RECORDED NOVEMBER 28, 1949 AS 1NSTRUMENT NO. 3235 OF OFFICIAL RECORDS. P6402-0201\1084329v3.doc EXHIBIT B DESCRIPTION OF IMPROVEMENTS Three (3) air conditioning units, replacement of current exit signs with long life LED signage, upgrading of existing incandescent or HID fixtures with fluorescent fixtures and/or other energy efficient equipment and/or improvements as may be authorized and approved by the Executive Director of the Agency. P6402-0201\1084329v3.doc EXHIBIT C FACADE EASEMENT AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO City of Palm Desert 73-510 Fred Waring Drive Palm Desert, CA 92260 Attn: Facade Enhancement Program FEP No.: A.P.N.: No Recording Fee Required B Government Code Section 6103 SPACE ABOVE THIS LINE FOR RECORDER'S USE FACADE EASEMENT AGREEMENT THIS FACADE EASEMENT AGREEMENT made this day of , 2008, between DESERTARC, a California public benefit corporation, hereinafter called the "Grantor", and the PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic, 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 in Exhibit A attached hereto: 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. C. The term of this easement is fifteen years, commencing on the date of recordation hereof and ending on the date that is fifteen 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 Easement Purchase Ageement dated concurrently herewith, the Grantor does hereby grant and convey unto the Grantee a Facade Easement, hereinafter called P6402-0201\1084329v3.doc 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 enjoyrnent 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 the 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, repair, repainting, or refinishing of existing improvements shall be permitted without such written permission of the Grantee, as provide in Paragraph 4 herein below. 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 buildings. 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 buildings, 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 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 U.S. mail, postage prepaid, addressed to the street address for the Property. P6402-0201\1084329v3.doc 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, ar junk upon the Property, excepting refuse and junk disposal as has customarily been practiced on the Property prior to this gant 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 far 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 Grantar, 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. P6402-0201 \ 1084329v3.doc 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, for the term provided in Recital C hereinabove as a servitude running with the Property and shall survive the death of the Grantor or any termination of the Grantee's existence. P6402-0201\1084329v3.doc 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 , 2008. Grantor: DESERTARC, a California public benefit nonprofit corparation By: Name: Title: By: Name: Title: The Grantee accepts this grant of Easement as of the day of , 2008. PALM DESERT REDEVELOPMENT AGENCY, a public body, corporate and politic : Jean M. Benson, Chairman ATTEST: Rachel D. Klassen, Secretary P6402-0201 \ 1084329v3.doc STATE OF CALIFORNIA }ss. 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. Signature (This area for official notarial seal) STATE OF CALIFORNIA }ss. 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. Signature (This area for official notarial seal) P6402-0201\1084329v3.doc STATE OF CALIFORNIA } ss. 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) ar 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. Signature (This area for official notarial seal) P6402-0201\1084329v3.doc EXHIBIT A DESCRIPTION OF PROPERTY The land referred to herein is situated in the State of California, County of Riverside, City of Palm Desert, described as follows: THE WEST 7'/z ACRES OF THE WEST 15 ACRES OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION B, TOWNSHIP 5 SOUTH, RANGE 6 EAST, SAN BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF. EXCEPTING THEREFROM THE NORTH 44 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED APRIL 14, 1958 IN BOOK 2254 PAGE 592 OF OFFICIAL RECORDS; ALSO EXCEPTING THEREFROM THE SOUTH 11 FEET OF THE NORTH 55 FEET AS CONVEYED TO THE COUNTY OF RIVERSIDE, BY DEED RECORDED OCTOBER 1, 1976 AS 1NSTRUMENT NO. 147669 OF OFFICIAL RECORDS; ALSO EXCEPTING THEREFROM 1/16TH OF ALL COAL, OIL, GAS, AND OTHER MINERAL DEPOSITS IN SAID LAND, AS RESERVED IN PATENT FROM STATE OF CALIFORNIA, RECORDED NOVEMBER 28, 1949 AS INSTRUMENT NO. 3235 OF OFFICIAL RECORDS. P6402-0201\1084329v3.doc EXHIBIT D SCHEDULE OF PURCHASE PRICES FOR FACADE EASEMENT WITHIN THE FOLLOWING 12 MONTH PERIODS FROM THE DATE OF RECORDATION OF THE FACADE EASEMENT AGREEMENT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 PURCHASE PRICE AMOUNT $61,800 $59,368 $56,992 $54,673 $52,414 $50,215 $48,078 $46,006 $44,001 $42,064 $40,197 $38,403 $36,683 $35,041 $33,478 P6402-0201 \ I 084329v3.doc � '< 0 � 0 R 0 a v 0 `m' � D � S A Z o o � p A � 3 O �1.D,N �a 3 G1 s m N o �y A m cD 3. N � fD uwi � N � � � ' A Z � O o �o 3:� a � D� �D � 7 � '� �J , T fD ? �' � � � a �. a � y R N � T Q C 3 a N � , � . .. ,...L w — � `a fn �r+ vi v� ss, bs . u� v� T � O � � � � � u, �O t0 i � i i � i � 'Vi i�fl %A 69 {q �fA 69 {A T � O �O , 'o ���:����� T � O !A 1�A '� fA {A V1 M (�A � j�i . . 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