Reciprocal Parking, Access and Maintenance Agreement 2002-0097736
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DOG. 2002-0097736.
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RE CORD lNG REQUESTED BY AND-004982'
WHEN RECORDED RETURN TO:
FEB 05, 2002 9:26
AM
OCFICIAL RECORDS
SAN DIEGO r.mm' REaJRDER'S OFFICE
GREim' J~SHITH, COIJffi' RECOROCR
FEES: 0.00
WAY: 2
City' Clerk
City of Poway
P.O. Box 789
,Poway, CA 92074
11111111111111111111111111111
2002.0097736
Space Above Line for Recorder's Use Only
Exempt From Recording Fee Pursuant to Government
Sec~ion 27383,
RECIPROCAL PARkING. ACCESS. AND MAIN'FENANCE AGREEMENT
Code
THIS RECIPROCAL PARKING, ACCESS, A."ID MAlNTENAl"J'CE
AGREEMENT ("Agreement") is executed 'September 25, 2001 between POW A Y
REDEVELOPMENT AGENCY, a public body ("Agency"), and POW A Y RHF HOUSING,
INC., a California corporation ("PRHI"), with reference to the following facts:
RECIT.A.LS
A. Agency is.the,owner of Parcel I of Parcel Map No. 18617 in the City of
Poway ("City") and County o(San ,Diego, California ("Agency PropertY"), on which the
connruc,ion of approximately'eiihty-four(84) affordable senior apattments is proposed, with'a
paved surface parking area containing approximately 101 spaces ("Agency Parking Area"). A
legal description oithe Agency,Property is attached hereto as Exhibit "A". The Agency Parking
Area is more particularly described in the Attached Exhibit "B".
B. PRHI is the owner of Lot 2 of Map No. 186J 7 in the City and County of
San Diego, California ("PRHIProperty"), on which an existing independent living residential
senior project known as the Gate\lfayProject is located and a proposed 55,318 sq. it, senior
assisted living facility is to be constructed: The parcel has a pavedsllrface parking,area
containing approximately 100 spaces ("PRHI Parking Area"). A legal description of the PRHI
Property is attached hereto as Exhibit "C". The PRHI Parking Area is more particularly
described in the Attached' Exhibit "B".
C. The Agency Property and the'PRHI Property are
immediately adjacent to each other.
D.' On April 25. 2000, the City,Council of the City adopted
Resolution No. P-00c31,in'which it approved Conditional Use Permit 00-02 and Development
Review 00-02 ("AffordableApprovals") t.o allow for the construction of the 84-unit affordable'
senior apartments on the, Agency Property.
E. On April 25. 2001}, the City Council of the City adopted
Resolution No. P-OO-32, in which it approved Conditional Use Permit 00-03 and Development
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Review 00-03 ("Assisted Living Approvals") to allow for the construction ofa 66-unit.assisted
livingfacility on Parcell of Parcel Map No. 18617.
F. Both the Affordable Approvals and the Assisted Living
Approvals require that a reciprocal access, parking, and maintenance agreement between Lots 4
and 5 of Map No. 11187 be recoTded prior to the issuance of a building permit.
G, Agency and PRHI intend for this Agreement to satisfy the
requirement of the Affordable Approvals and the Assisted LivingApprovals to provide such a
reciprocal access, parking and maintenance agreement prior to the issuanc'e of a building permit.
H. Agencyandp'RHI as record owners of their respective properties, or any
successor in interest or assignee, of the fee simple title to orother,interest in any such property, is
herein called an "Owner". The Owners now desire to formalize their rights and obligations
respecting such parking, access, and maintenance for the benefit of the Owners and their
successors:and assigns and theirrespective principals, agents, employees, guests, patrons,
licensees, contractors, tenants" occupants and in vi tees who maybe properly engaged at any time
in duly authorized. functions, operations or activities ("Users") at and upon the Agency Property
or PRHI Property, on terms and conditions more fully contained in this instrument.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable, consideration, the receipt and 'adequacy of which are hereby
acknowledged, the Owners hereby agree as follows:
ARTICLE 1.
GRANT OF EASEMENTS AND RESTRICTIONS
1.1 Grant of Access. Agency hereby grants to PRHI a non-exclusive perpetual
easement for pedestrian and vehicular ingress and egress as between the PRHI Property, on the
one hand, and the Agency ParkingArea, on,the other hand, on, over or across all existing or
future roadways, driveways or Agency Parking Area situated at any time upon the Agency
Property. ERHI hereby grants to Agency a non-exclusive perpetual easement for pedestrian and
vehicular ingress and egressas,between the Agency Property; on the one hand, and the PRHI
Parking Area, on the other hand, on, over or across all existing or future roadways, driveways or
PRHI Parking Area situated at any time upon the PRfII Property.
1.2 Grant of Parking Easement. Agency hereby specifically grants to PRHI a
non-exclusive easement for .the parking of vehicles within the Agency Parking Area. PRHI
hereby specifically grants to Agency a non'exclusive easement for the parking of vehicles within
the PRHI Parking Area.
1.3 Benefited Propertv. Subject to the'provisions of Section 3.2 below, each
of the foregoing access and parking easements shall benefit, respectively, the Agency Property
and PRHI Property, and the Owner thereof, and any Users,
1.4 ConditiOns of Easements. Each oftheforegoing access and parking
easements shall be subject to the following conditions and restrictions:
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(a) Priori tv and Control. All such usage of the Agency Parking
Area shall be subject and subordinate to, and shall not interfere with, the
reasonable use and enjoyment thereof by Agency or its agents, employees, tenants,
subtenants, contractors, guests, patrons and invitees. All such usage of the PRHI
Parking Area shall be subject and subordinate' to, and shall not interfere with, the
reasonable use and enjoyment thereof by PRHI or it.s agents, employees, tenants,
subtenants, contractors, guests, patrons and invitees. Accordingly, Agency shall
have the sole and exclusive control of the AgencyParking Area and PRHI shall
have the sole and exclusive control of the PRHI Parking Area.
(b) Securitv. Owners shall have.no obligation to provide any
security guards, parking attendants or'other personnel or facilities to park or
safeguard any such vehicles of Users, other than City required lighting.
(c) Costs. PRHI shall not be obligated to pay any maintenance
or other costs or expenses associated with PRHI's use of the Agency Parking Area
and Agency shall.not be obligated to pay any maintenance or other costs or
expenses associated with,Agency's use of the PRHI Parking Area, other than as
specifically provided herein.
(d) Compliance. All persons using parking spaces in the
Agency Parking Area or PRHI Parking Area shall do so at their own risk and shall
comply with all governmental laws, ordinances, orders, decrees or other
requirements applicable thereto, al1 provisions of this Agreement and all
reasonable nondiscriminatory rules and regulations adopted or amended by
Owners from time to time.
(e) Temporary Exclusion of Use. After notice to the other
Owner (as far in advance as reasonably possible under the circumstances, stating
the grounds or reasons therefor), and notwithstanding any previous or then-
existing preferences, customs or practices of the parties, Agency may temporarily
close all or any portions of the Agency Parking Area and PRHI may temporarily
close all or any portions of the PRHI Parking Area for repairs or alterations, or in
order to prevent a public dedication thereof or accrual of prescriptive rights
therein, provided, however, that prior to any such closure, Age~cy or PRHI shall
also attempt to coordinate such activities so as to minimize any interference with
the other Owner's operations.
(f) Free from Obstructions. Subject to reasonable,
nondiscriminatory rules 'and regulations of each Owner, Agency shall keep access
areas and the Agency Parking Area, and PRHI shall keep access areas and the
PRHI Parking Area, free and clear of any obstructions and may restrain any
unauthorized persons from improperly using the same.
(g) Use.Areas. It is intended that parking shall occur on a non-
exclusive, unreserved (random select) basis and that no areas shal1 be marked or
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designated (whether by signs, chains, fences or in any other manner) for the
exclusive use of Agency, PRHI, or any User. In addition, nothing contained
herein shall be construed to authorize any party, including Agency,PRHI, and
Users, or any other person or entity, to enter upon or use any portions of the
Agency Parking Area or the PRHI Parking Area in any way or for any purpose
other than as specifically provided herein.
(h) Nuisances. No noxious or offensive activity shall be
carried out on the Agency Parking Area or the PRHI Parking Area, and nothing
shali be done thereon which may be a nuisance to either Owner or its permittees
or interfere with their respective quiet enjoyment thereof.
(i) Enforcement. Either Owner, at that owner's expense and
without any liability to the other Owner, may tow away any unauthorized vehicle
which is parked or otherwise in violation of this Agreement, may attach violation
stickers or notices thereto, may attach de,>;ices immobilizing such vehicle without
causing undue injury or damage thereto, or may impose reasonable parking or
removal charges or penalties with respect to any such vehicle, and may implement
other reasonable enforcement measures.
ARTICLE II.
PROPERTY MAINTENANCE AND OBLIGATIONS
2.1 Maintenance Responsibilitv and Standards and Cost Allocation.
(a) Agency shall have sole control and full responsibility for
the maintenance, repair, alteration, operation and replacement from time to time of the
Agency Parking Area and other appurtenances in a clean and neat condition and
appearance appropriate for a project of a.similar type or types situated in the City.
Agency shall not, however, have any maintenance or repair obligations of the Agency
Parking Area until such time that Agency or a third party has obtained a building permit
to begin construction of the affordable senior apartments on the Agency Property.
(b) PRHI shall have sole control and full responsibility for the
maintenance, repair, alteration, operation and replacement from time to time of the PRHI
Parking Area and other appurtenances in a clean and neat condition and appearance
appropriate fora project of a similar type or types situated in the' City.
(c) Agency and PRHI agree to allocate the reasonable costs of
maintaining and repairingJhe Agency Parking Area, as well as the private access ways or
roadways described inJhisAgreement, based on a formula that reflects the daily automobile trips
to be generatedfroni the Agency Property and PRHI Property. Based on the existing approved
uses, the allocation of maintenance' and repair costs as between the Agency and PRHI is 66% to
PRHI and 34% to Agency. Until such time that Agency or a third'party has obtained a building
permit to begin construction of the affordable senior apartments on the Agency Property,
however, PRHI shall be 100% responsible for the maintenance and repair costs of the Agency
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Parking Area.. Agency and PRHI agree to cooperate in good faith to coordinate maintenance and
repair of the Agency Parking Area and private access ways or roadways to the maximum extent
possible. Prior to executing any contract with a third party to maintain or repair the Agency
Parking Area or private access ways and roadways, Agency shall provide a copy of the proposed
contract to PRHI. PRHI shall accept or reject the contract in writing within ten (1.0) days after
receiving a copy of the contract. IfPRHI accepts the contract, it shall be responsible to pay its
percentage share of the work authorized under the contract and pursuant to the terms of the
contract. IfPRHI rejects the contract, PRHI shall have thirty (30) days to execute a new contract
with a different contractor that can perform the same extent and quality of work at a lower cost
and the parties shall be responsible to pay their respective percentage share of the cost described
in the new contract. IfPRHI is unable to execute a new contract within thirty (30) days, the
original contract shall be executed and PRHI shall be required to pay its percentage share of the
cost described in the original contract.
2.2 Transfer Obligations. Each Owner of the Agency Property or PRHI
Property shallgive notice' of any sale or other voluntary transfer of all or any portion of such
property to the other Owner. Each such Property as so further transferred shall continue to be
subject to the terms of this Agreement in all respects.
2.3 Condemnation. In the event of a condemnation or a sale in lieu thereof
concerning all or any portion of the Agency Property or PRHI Property, the award or purchase
price paid for such taking shall be paid to the Owner of such land so taken; it being the intent of
any party who might have an easement or other property interest or right under this Agreement in
the land so taken, to release and/or waive such property interest or right with respect to such
award or purchase price; provided, however, that such other party shall have the right to seek an
award or compensation for the loss of its easement right, but only to the extent that such award or
compensation paid or allocated for such loss does not reduce or diminish the amount paid to the
party owning such land.
2.4 Agencv Indemnitv. Agency agrees to defend, indemnify, protect and hold
PRHI and its agents, officers, tenants, invitees, and employees harmless from and against any and
all claims asserted or liability established for damages or injuries to any person or property,
including injury to PRHI's agents, officers, tenants, invitees, or employees, which arise from or
are connected with, and are caused or claimed to be caused by, the acts or omissions of Agency,
and its agents, officers, tenants, invitees, or employees, in exercising the rights provided in this
Agreement concerning the PRHI Property; provided, however, that Agency's duty to indemnify
and hold harmless shall not include any claims or liability arising from the established negligence
or willful misconduct ofPRHI, its agents, officers, tenants, invitees, or employees. Agency and
PRHI agree that, in the event of any joint or concurrent negligence, they will apportion any
established or agreed upon liability proportionate to their respective degree of fault. Agency
shall have the right to select legal counsel to represent PRHI subject to PRHI's reasonable
approval. PRHl may make all reasonable decisions with respect to its representation in any legal
proceeding, except that if during the proceeding a settlement demand is made and Agency is
willing to satisfy the settlement demand and PRHI rejects such settlement demand, Agency's
indemnity obligation in the proceeding shall'from that point forward not exceed the amount of
the settlement demand,
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2.5 PRHIIndemnitv. PRHI agrees to defend, indemnify, protect and hold
Agencyal1d. its agents, officers, tenants, invitees; and employees hannless from and against any
and all claims asserted or liability established for damages or injuries to any person or property,
including injury to Agency's agents, officers, tenants, invitees, or employees, which arise from or
are connected with, and are caused or claimed to be caused by, the acts or omissions ofPRHI,
and its agents, officers, tenants, invitees, or employees, in exercising the rights provided in this
Agreement concerning the Agency Property; provided, however, that PRHI's duty to indemnify
and hold harmless shall not include any' claims or liability arising from the established negligence
or willful misconduct of Agency, its agents, officers, tenants, invitees, or employees. Agency
andPRHI agree that, in the event of any joint or concurrent negligence, they will apportion any .
established or agreed upon liability proportionate to their respective degree of fault. PRHI shall
have the right to select legal counsel to represent Agency subject to Agency's reasonable
approval. Agency may make all reasonable decisions with'respectto Its representation in any
legal proceeding, except that if'duringthe proceeding a settlement demand is made and PRHI is
willing to satisfy the settlement demand and Agency rejects such settlement demand, PRHI's
indemnity obligation in the proceeding shall from that point forward not exceed the amount of
the settlement demand.
2.6 Insurance. Agency and PRHI each agree to maintain or cause to-be
maintained a single limit general liability insurance policy, with aggregate limits of at least
$1,000,000, that provides coverage for their respective uses, as well 'as the uses by their agents,
officers, tenants, invitees, or employees of the Agency Property and PRHI Property as-provided
for in this Agreement. Upon request, Agency and PRHI shall furnish the other party with a
certificate of insurance evidencing compliance with this Section 2.6. Agency shall not be
required to maintain an insurance policy until Agency or a third party has obtained a building
permit to begin construction of the affordable senior apartments on the Agency Property.
ARTICLE III.
MISCELLANEOUS PROVISIONS
3.1 Rights of Lenders. No breach or violation of this Agreement shall defeat,
impair or render invalid the lien of any mortgage, deed of t~st or similar instrument which
secures a loan made in good faith and for value to an Owner and encumbering that Owner's
property (herein, "Mortgage"), and no portion of this Agreement shall supersede or in any way
reduce the security or affect the validity of any such Mortgage. Notwithstanding the foregoing,
however, all of the provisions contained herein shall be binding upon and effective against any
holder of such Mortgage or subsequent Owner (herein collectively, the "Owner-Mortgagee")
whose title to any property is acquired through private or judicial foreclosure sale, or deed or
assignment in lieu of foreclosure, except that: (A) such Owner-Mortgagee shall take title free and
clear of any violations incurred or occurring prior to such acquisition of title; and (8) such
Owner-Mortgagee shall be liable under this Agreement only during the period of its fee
ownership of any property and only to the extent attributable to such period; and (C) the Owner-
Mortgagee shall be released from any such liability upon'any transfer to another person or entity
which duly and validly assumes all such liability with respect to such period.
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3.2 Covenants Running wiihthe Land. Upon recordation ofthis Agreement,
all provisions contained herein shall operate as,coVemints ruiming with the land for the respective
benefit of the Agel1cyProperty and thePRHI Property;' provided, however, that any and all rights
of enforcement.ofthis Agreement shall be exercised only by: (a) the original Owners hereunder,
(b) any successor or assign of any such Owner, or (c) any other.person or entity specifically'
assuming such rights and duties and to whom such rights and duties are specifically assigfted in
writing by either of the respective original Owners. Neither of the, Owners shall assign any rights
under this Agreement to a third ,party without (i) obtaining written consent to the assignment
from the other Owner, which consent shall not be unreasonably withheld, and (ii) transferring
ownership in the Agency Property or PRHI Property to the assignee or entering into an operating
agreement or lease with the assignee concerning either the Agency Property or PRHI Property:'
Nothing herein contained shall be deemed to be a gift or dedication of any portion of the property
affected hereby to or for the general public or for any public purpose whatsoever, or to create any
relationship of partnership, joint venture or principal and agent .between the parties hereto.
3.3 Amendment or Termination of Agieement. This Agreement may only be
amended or terminated by an instrument signed in writing by both Owners. No amendmentsl1illl
be effective which materially increases the burdens or decreases the rights of the Owner of allY
real property without the consent of both such Owner and the holder of any Mortgage with
respect thereto. No Owner or holder ofa Mortgage may unreasonably withhold its consent or
signature to any amendment ofthisj\greement.
3.4 GeneraL This instrument shall be governed by and construed in
accordance with the laws of the State of California. If any provision or its application shall to
any extent be invalid or unenforceable, the remainder of the instrument shall be valid and
enforceable to the fullest extent permitted by law. All pronouns, and any variations thereof shall
be deemed to refer to all genders, and the singular and the plural shall each include the other, as
the context may allow. All captions, and headings contained herein are for convenience of
reference only and shall not be considered in resolving any questions of interpretation or intent.
This Agreement maybe executed in one or more counterparts; each of which shall constitute one
and the same iustrument. By signing below, each signatory thereby represents and warrants that
he or she has been duly authorized to bind the party'on behalf of which such signature is being
affixed.
IN WITNESS WHEREOF, this Agreementhas been duly executed as ofthe date
first above written,
POWAY REDEVELOPMENT AGENCY ,a
public body, corporate and politic
POW A Y RHF HOUSING, INe., a California
corporation
, onlJE DiRECTOR.
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Title: Rich~rd'lWashington /- J I-
. Vice, President
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EXHIBIT A
LEGAL DESCRIPTION
The land ref~rred'to herein is situated in the State of California, County-of SAN DIEGO,
CitycofPOW AY, Town of POW A Y, described as follows:
PARCEL 1 OF PARCEL MAP NO. 18617 IN THE CITY OF POW A Y,
COUNTY OF SAN DIE.GO, STATE OF CALIFORNIA, RECORDED
IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON DECEMBER 27,2000, AS FILE NO. 2000-0708415 OF
OFFICI:ALRECORDS.
End of Legal Description.
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EXHIBIT B
004992
AN EASEMENT FOR INGRESS AND EGRESS, OVER, ALONG AND ACROSS .
THAT PORTION OF PARCEL 1 OF SAID PARCELMAl' NO. 18617, SHOWN,AND
DESIGNATED THEREON AS "EASEMENT FOR PUBLIC ACCESS AND
GENERAL UTILITY PURPOSES DEDICATED TO THE CITY OF POW A Y
HEREON".
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004993
EXHIBIT C
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of SAN DIEGO,
City of POW A Y, Town of POW A Y, described as follows:
PARCEL 2 OF PARCEL MAP NO. 1861iIN THE CITY OF POWAY,
COUNTY OF SAN DIE'GO, STATE OF CALIFORNIA, RECORDED
IN THE OFFICE OF THE COuNTY RECORDER OF SAN DIEGO
COUNTY ON DECEMBER 27, 2000, AS FILE NO. 2000-0708415 OF
OFFICIAL RECORDS.
End of Legal Description.