Maintenance Agreement 1998-0084897
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DOC. 1998-0084897
FEB 19, 1998 1:28 PM
OFFICIAL RECORDS
SAN DIEGO DJUNTV RECORDER'S OFFICE
GREliffiV J. SMITH, COUNTV RECORDER
FEES: 0.00
Poway Redevelopment Agency
13325 Civic Center Drive
P,Q, Box 789
Poway, California 92074-0789
Atrention: Executive Director
CI,IO bL/f
This document is exempt from the payment of a recording fee
pursuant to Government Code Section 27383.
MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT (the "Agreement") is hereby enrered into by and
among the POWAY REDEVELOPMENT AGENCY, a public body, corporate and politic (the
"Agency ")/MA;I7V 1VRAMlS',*as Trustee ofthe Travis Family Trust dated November 11, 1993,
and YMT AUTOMOTIVE, INC., a California corporation.<c~ll~ctively, the "Developer"), as of
J. q , ,199~ , J.. .r'L1r'(fi:;@;)
RECITALS
A. The Agency and'the Developer have entered into a Disposition and Development
Agreement CDDA") on November 4, 1997, for the development of an automobile dealership (the
"Conforming Dealership Facility," as defined in the DDA) located on certain real property located
in the Paguay Redevelopment Project, which is more particularly and legally described on Exhibit
"A" attached hereto and made a part hereof (the "Sire"), The ODA requires that Developer shall
execure this Mainrenance Agreement, and shall maintain the improvements and the landscaping on
the Sire in accordance herewith.
B, The Agency and the Developer desire to set forth herein their respective rights and
obligations and the maintenance standards (including without limitation the definition of
"Maintenance Standards ") concerning the maintenance of all the improvements on-site and off-site
in the public right-of-way to the back of the curbline(s) abutting the boundary of the Site and, in the
case of privately-owned land adjacent to the Site, to the property line (herein "improvements to the
curbline"), The City is,an intended third party beneficiary of this Agreement, and shall have the
enforcement rights provided ,herein,
*Hardy Matthew Travis
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NOW, THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. Purpose'of Tbis 'Agreement. The purpose ofthis'.Agreelllent is to set forth general
mairitenance;standard's and obligations of Developer inits'mainienance of the private and public
improvements, on' and within the Site to the back of the curbline.
2., Parties to the Agreement, The Poway Re,development Agency isa public body
corporate and politic oithe Stateof'California. The "Agency" as used in this Agreement includes
thePoway'Redevelopment Agency and any assignee of or successor to its rights, powers, and
resporisibilities.
The "Developer"as used in this Agreement includes ,Matt Travis, as trustee of the
Travis FamilyTrust, HMT Automotive, Inc, and any assignee of or successor to their rights,
powers and responsibilities,
The City of Poway("City") is a California mmi.lCipal corporation. The City is a
third party beneficiary of tJiis Agreement.
3. Representativ.es,ofthe Parties and Services of Notices, The representatives of the
respective parties who are authorized to administer this Agreement and to whom formal notices,
demands and communications shall be given are as follows:
Agency:
Poway Redevelopment Agency
13325 Civic Center Drive
P,Q, Box 789
Poway, California 92074-0789
Attention: Executive Director
Developer:
Mr. Matt Travis
15774 Sunset Drive
Poway, California 92074
Formal notices, demands and communications to be given hereunder by any party
shall be made in Writing and ,may be effected by personaI.delivery, teiecopy, overnight, delivery
service, or by registered or certified mail, postage prepaid,return receiptrequested, Noticeswhich
are, properly mailed shall be deemed communicated not earlier than forty-eight (48) hours after the
date of mailing,
If the name of the person designated to receive the notices, demands or
communications:or the address is, changed, wi-itten notice shall be given, in accord with this
section, 'within five (5) working days of said change,
4. Performance of Maintenance,
a. nevelopershall maintain in accordance with, the Maintenance Standards, as
hereinafter.detlned, the p'rivateimprovements and public improvements and landscaping to the
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clirbline(s) on and abutting the Site, Said improvements shall include, but not be limited to,
buildings, sidewalks, pedestrian lighting, landscaping, irrigation of landscaping, architectural
elements identifying the,Site and ,any and all other improvements, on the Site and in the public
right-of-way to the nearest curbline(s) abutting the Site.
b, To accomplish the maintenance, Developer shall either staff or contract with
and hire licensed and qualified personnel to perform the maintenance work, including the provision
of labor, equipment, materials,suppO[t facilities, and any and all other items necessary to comply
with the requirements of this Agreement.
c. The following standards ("Maintenance Standards") shall be complied with
by Developer and its maintenance staff, contractors or subcontractors:
I. Landscape maintenance shall include, but not be limited to:
watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning;
trimming and shaping of trees and shrubs to maintain a healthy ,natural appearance and safe road
conditions and visibility, and :irrigation coverage; replacement, as needed, of all plant materials;
control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking
for support of trees.
2. Clean"up maintenance shall include, but not be limited to:
maintenance of all sidewalks, paths and other paved areas in clean and weed-free condition;
maintenance of all such areas clear of dirt, mud, trash,debris or other matter-which is unsafe or
unsightly; removal of all trash, litter and other debris from improvements and landscaping prior to
, mowing; clearance and cleaning of all areas maintained prior to the end of the day on which the
maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris
are properly disposed of by maintenance workers,
3. All maintenance work shall conform to all applicable federal and
state Occupation Safety and Health Act standards and regulations for the performance of
maintenance,
4, Any and all chemicals, unhealthfUl substances, and pesticides used in
and during maintenance shall be applied in strict accordance with all governing regulations,
Precautionary measures shall, be"employed recognizing that all areas are open to public access,
5, The Developer Improvements (as the term is defined in the DDA)
shall be maintained in conformance and in compliance with the approved Site construction and
architequral plans and design scheme, as the same may be amended from time to time with the
approval of the City (and Agency, if such approval is required) and reasonable commercial
development maintenance standards for similar project~, including but not limited to: painting and
cleaning of all exterior surfaces and other exterior facades comprising all private improvements and
public improvements to the curb line,
6, The Developer Improvements (as defined in the DDA) shall be
maintained as required by this Section 4(c) in good condition and in accordance with the custom
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and practice generally applicable to comparable first-class automobile dealerships located within
San Diego County, California. The public right-of-way improvements to the curbline(s) shall be
maintained asrequ'ired by this Section04(c) in good condition and.in,accordance with the custom
and practice generally applicable to public rights-of-way within the City of Poway, California.
5. Failure to MaintiJin Improvements. In the event Developer doeS not maintain the
private improvements and the public improvements or the Site to the curbline(s) in the manner set
forth, herein and in accordance with the Maintenance Standards, Agency and/or City shall have the
right to maintain such private and/or public improvements, or to contract for the correction of such
deficiencies, after written notice,to Developer. However, prior to taking any such action, Agency
agrees to,notify Developer in writing if the condition of said improvements do not meet with the
Maintenance Standards and to specify the deficiencies and the actions required to be taken by
Developerto cure the deficiencies, Upon notification of anymairitenance deficiency, Developer
shall have thirty (30) days within which to correct, remedy or cure the deficiency, If the written
notification states the problem is Ilrgent relating to the public health and safety of the City or the
Agency, then Developer shall have forty-eight (48) hours to rectify the problem.
In the event Developer fails to correct, remedy, or cllre or has not commenced
correcting, remedying or curing such maintenance deficiency after notification and after the period
of correction has lapsed, then City and/or Agency shall have the right to maintain such
improvements, Developer agrees to pay Agency such charges and costs. Until so paid, the
Agency shall have a lien on theSite for the amount of such charges or costs, which lien shall be
perfected by the recordation of a "Notice of Claim of Lien" against the Site, Upon recordation of a
Notice ofa Claim of Lien against the Site, such lien shall constitute a lien on the fee estate in and to
the,Site pdor and superior to all other.monetary liens except: (i) all taxes, bonds, assessments, and
,other levies which, by law, would be superior thereto; (ii) the lien or charge of any mortgage, deed
of trust, or other secllrity interest then of record made in good faith and for value, it being
understood that the priority of any such lien for costs incurred to comply with this Agreement shall
date from the date of the recordation of the Notice of Claim' of Lien, Any such lien shall be subject
and subordinate to any lease or sublease of the interest of Developer in the Site or any portion
thereof and to any easement affecting the Site or any portion thereof entered into at any time (either
, before or after) the da:te ofrecordation of such a Notice, Any lien in favor of the Agency created
or claimed hereunder is expressly made subject and subordinate to any mortgage or deed of trust
made in good faith and for value, recorded as of the date of the recordation of the Notice of Claim
of Lien describing such lien as aforesaid, and no such lien shall in any way defeat, invalidate, or
impair the obligation or priority of any such mortgage or deed of trust, unless the mortgage or
beneficiary thereunder expressly subordinates his interest, ofrecord, to such lien, No lien in favor
of the Agency created or claimed hereunder shall in any way defeat, invalidate, or impair the
obligation or priority:of any lease, sublease or easement unless such instrument is:expressly,
subordinated to such lien, Upon foreclosllre of any mortgage or deed of trust made in good faith
and for value and recorded prior to the recordation of any unsatisfied Notice of Claim of Lien, the
foreclosllre-pllrchaser shall tlike,.title to the Site free of any lien imposed by the Agency that has
accrued up to the time of the foreclosure sale, and upon taking title to the Site, such
foreclosllre-pllrchaser shall only be obligated to pay costs associated with this Agreement accruing
after the foreclosure-purchaser acquires title to the Site. If the Site is ever legally divided with the
written approval of the Agency'and fee title to various portions of the Site is held under separate
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ownerships, then the burdens ofthe maintenance obligations set forth , herein and in this Agreement
and the charges levied by the Agency to reimburse the Agency for the cost of undertaking such
maintenance obligations of Developer and its successors and the lien for such charges shall be
apportioned among the fee owners of the various portions of the -Site ,under different ownerships
according to the square footage of the land contained in the respective portions of the Site owned
by thein, Upon apportionment, no separate owner of a ,portion of the Site shall have any liability
for the ,apportioned liabilities of any other separate owner of another portion of the Site, and the
lien shall be similarly apportioned and shall only constitute a lien against the portion of the Site
owned in fee by the owner who is'liable for the apportioned charges levied by the Agency and
secured by, the apportioned lien and against no other portion of the Site. Developer acknowledges
and agrees City and Agency may also pursue any and all other remedies available in law or equity,
Developer shalLbe liable for any and all attorneys' fees, and other legal costs or fees incurred in
collecting said maintenance costs.
6. Compliance with Law and the Specific Plan. Developer shall comply with,all
local, state and federal laws relating to the uses of or condition of the Site private improvements
and public improyements to the curbline(s). Local laws for the purposes of this section shall
include (i) the "Specific Plan", which is the Poway Road Specific Plan as approved by the City
Council of the City, and (ii) those ordinances which are nondiscriminatory in nature and applicable
to the public welfare, health, safety and aesthetics. If any new local laws (excepting the Specific
Plan) relating to uses of or condition of the improvements create a condition or situation that'
constitutes, a lawful nonconforming use as defined by local ordinance with respect to the Site or any
portion thereof, then so long as the lawful nonconforming use'status;remains in effect (Le" until
such lawful status is properly terminated by amortization as provided for in the new local law or
otherwise), Developer shall be entitled to enjoy the benefits of such lawful nonconforming use
, pursuant to the lawful nOl1conforming uses ordinance; provided, however, that the Developer shall
comply with and shall not enjoy nonconforming use status as against the Specific Plan,
7. Covenants Run with the Land. The Improvements to the curbline(s) and the
maintenance thereof touch and concern the Site and inure to the benefit of any and all present or
successive owners of the Site. Therefore, whenever the word "Developer" is used herein, it shall
include the owner and tenant as of date of execution of this Agreement, and any and all successive
owners and tenants of the Site and their assigns, and the provisions hereof are expressly binding
upon all such successive owners or assigns, and the parties agree all. such provisions shall run with
the land, Agency or City shall cause a fully executed copy of this Agreement to be recorded in the
'Office of the'San Diego County Recorder. Notwithstanding the foregoing, in the event Developer
or its successors or assigns, shall convey its fee interest in all or any portion of the Site, the
conveying owner shall be free from and after the date of recording such conveyance of all
liabilities, respecting the performance of the restrictions, covenants or conditions contained in this
Agreement thereafter to be performed with respect to the Site, or any part thereof, it being intended
that the restrictions, covenants and conditions shall be binding upon the record owners of the Site
only during such time as they own the same, provided that the conveying owner shall remain liable
for any actions prior to the'date of the conveyance,
8. Indemnification. Developer agrees to protect, defend, indemnify and hold
harmless City and Agency and their elective and appointive boards, officers, agents, and employees
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from any and all claims, liabilities, expenses or damages of any nature, including reasonable
attorney fees, (a) for injury to, or death of, any person, and for injury to any property, including
consequential damages of any nature resulting therefrom, arising out of or ,in any way connected
with the perfornianceof this Agreement by Developer or its agents, servants, employees or
, ,
contractors, bilt hot from (i) the negligence or intentional acts of-the City or Agency, or their
agents, servants, employees or contractors in connection with supervision or direction of the work,
or (ii) third parties unrelated to Developer or its agents, servants, employees or contractors, but not
by the City or Agency ,or their respective agents, servants, employees or contractors and (b) from
violation of any statute, law regulation or other legal requirement concerning a safe place for
employment of workers by Developer or its agents, servants, employees or contractors, but not by
(i) the City or the Agency or their respective agents, servants, employees or contractors or (it)
third parties unrelated to Developer or its agents, servants, employees or contractors.
Developer shall comply with all of the provisions of-the Workers' Compensation
Insurance and Safety in Employment laws of the State of California, including the applicable
provisions of Divisions 4 and 5 of the California Labor Code and all amendments 'thereto, and all
similar state, federal or local laws applicable; and shall indemnify and hold harmless City and
Agency from and against all claims, liabilities, expenses, damages, suits, actions, proceedings and
judgments of every nature and description, including reasonable"attorneys' fees, presented, brought
or recovered against City or Agency, for or on account of any, liability under any of said laws
which may be incurred by reason of work performed under this Agreement by Developer or its
. agents, servants, employees, cmitractors, but not by the sole acts of City and/or the Agency or'if
available, their respective agents, servants, employees or contractors,
City and Agency, do not, and shall not, waive any rights against Developer which it
may have by reason of the aforesaid hold harmless' agreement~ because of the acceptance by City
or the deposit with the City by Developer of any insurance policies or certificate of insurance
purporting to indemnify for the aforesaid losses, The aforesaid hold harmless agreements by
Developer shall apply to all liabilities, claims, expenses and damages of every kind, including but
not limited to reasonable attorney fees, suffered or alleged to have been suffered, by reason of the
aforesaid operations by Developer or any of its agents, servants, employees or contractors,
regardless of whether or not such insurance policies are applicable,
Similarly, the City and the Agency shall protect, defend, indemnify, and hold
harmless Developer, its successors and assigns, and/or if available, their respective boards,
officers, agents and employees from and against any and all claims, liabilities, expenses or
damages of any nature, including reasonable attorney's fees, (a) for injury to, or death of, any
person, and for injury to any property, including consequential damages of any nature resulting
therefrom, arising out,of or in any way connected with the acts or inactions taken by the City
and/or the Agency pursuant to the terms of this Agreement, but not the negligence or intentional
acts of Developer, or its agents, servants, employees or contractors; and (b) from violation of any
statute, law, regulation, or other legal requirement concerning a safe place for employment of
workers by the City and/or the Agency, or their respective agents, servant~, employees or
contractors or by (i) Developer or its agents, servants, employees or contractors or (ii) third parties
unrelated to the City or Agency or their respective agents, servants, employees or Contractors,
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, The City and/or. the Agency shall comply with,all'the provisions of the Workers'
Compensation Insurance and Safety and Employment Laws o(the -State of California, including the
applicable provisions of Divisions 4 and 5 of the California Labor Code'an all amendments thereto,
and all similar state, federal or local laws applicable; and shalUndemnify and hold harmless
Developer and its successors and assigns, from and againstan~ and all claims, liabilities, expenses,
damages, suits, actions, proceedings and judgments of every nature and description, including
reasonable attorneys' .fees, presented, brought or recovered against Developer or its successors and
assigns, for or on account of any liability under any of said laws which may be incurred by reason
of any work performed under this Agreement by the City and/or Agency, or their respective
'agents, servants, employees or contractors, but not by (i) Developer or its agents, servants,
employees orsontractors or (ii) third parties unrelated to the City or Agency or their respective
agents, servants, employees or contractors.
Developer or its successors or assigns do not, and shall not, waive any rights
against-the City-and/octhe Agency which it (they) may have by reason of the aforesaid hold
harmless agreement.because of any insurance policies or certificates of insurance purporting to
indemnify for the aforesaid losses, The aforesaid hold harmless agreement by the City and/or the
Agency shall apply to all liabilities, claims, expenses and damages of every kind, including, but not
limited to, reasonable attorney's fees, suffered or alleged to have been suffered, by reason of the
aforesaid'operations by the City and/or the Agency, or their, respective agents, servants, employees
or contractors, regardless of whether or not such insurance policies are applicable.
9. Workers' Compensation Insurance Requirements, Developer shall obtain and
maintain during the life of this Agreement workers' compensation insurance and if any work is
sublet by Developer, then Developer shall require the subcontractor similarly to provide workers'
, compensation' insurance, Developer agrees to indemnify City and Agency for any damages
resulting to it from failure of either Developer or any subcontractor to obtain or maintain such
insurance.
10. Bodily Injury and Damage Insurance Requirements, The Developer shall
defend, assume all responsibility for and hold the Agency and the'City and their officers,
employees, and agents, harmless from, all claims or suits for, and damages to, property and
injuries to persons, including accidental death (including attorneys fees and costs), which may be
caused by any of the Developer' sactivities under this Agreement, whether such activities or
performance thereof be by the Developer or anyone directly or indirectly employed or contracted
with by the Developer and whether such damage shall accrue or be discovered before or after
termination of this Agreement.
11. Waiver, Failure or delay by either party to perform any termor provision of this
Agreement constitute~ a default under this Agreement. The aggrieved party shall give \vritten
notice of the default io the party in default as set forth in Section 3 hereof. The defaulting party
must within a reasonable time commence to cure, correct, or remedy such default; and shall
complete such cure, correction or remedy with reasonable and due diligence, and during such
period or curing shall not be in default, The waiver by one party of the performance of any
covenant, condition, or promise shall not invalidate this Agreement nor shall it be considered a
waiver by such party of any other covenant, condition or promise hereunder. The exercise of any
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remedy shall not preclude the exercise of other remedies City, Agency, or Developer may have at
law or at equity,
12. Modification. This Agreement may be modified only by subsequent mutual written
agreement executed by Developer and the Agency.
13. Attorney's Fees, In the event of litigation arising out of any breach of this
Agreement, the prevailing party shall be entitled to recover reasonable costs and attorney's fees.
IN WITNESS WHEREOF, the parties hereto have executed this Maintenance Agreement
as of the dates set forth below.
AGENCY:
POW A Y REDEVELOPMENT AGENCY, a public
body, corporate and politic
By:
A TrEST:
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APPROVED AS TO FORM:
S adling Y occa Carlson Ra
Special Counsel to the Agency
DEVELOPER:
Hardy Matthew
IM'(l7f TRA VIS"as trustee of the Travis Family
Trust dated November 11, 1993
By:
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Name and Title of Officer (e.g., ~Jant Doe, Not;;F~1ih I -
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Name(s)ofSigner(s)
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to be the person(1) whose,i1ame~ is~ubscribed to the
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executed the same in his/hf;l,'tReir authorized capacity{iesjo,
and that by his/i'1el:tLf;l1signatur~ on the instrument the
person (llj , 'or the entity upon behalf of which the person(Bj'
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WITNESS my hand and official seal.
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OPTIONAL
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Title or Type of Document:
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Number of Pages:
Signer(s) Other Than Named Above:
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@1996 Nalional Notary Association. 8236 Remmel Ave., P.O. Box 7184 . Canoga Park, CA 91309-7184
Prod. No. 5907
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same in his/her/their,autho[iied capacity(ies). and that by
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WITNESS my hand and official seal.
Signalure of Notary Public
OPTIONAL
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fraudulent removal and reattachment of this form to another document.
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HMf AUTOMOTlYE, INC" a California
corporation .... .7;.~." J~
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, whose name(s) is/are 'subscribed to the within instrument
and acknowledged to me ihat he/she/they executed the
same in his/her/their~authorizoed capacity(ies); andthat by
his/her/theirsignature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
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OPTIONAL
Though the information below is noUequired'bylaw, it may prove valuable to persons relying on the document and could prevent
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Description of Attached Document
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Document Date: ,:;J o? /,tly / 7""P
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Number of Pages: '
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EXHIBIT A
LEGAL DESCRIPTION OF SITE
THA:T REAL PROPERTY LOCATED IN THE S1' ATE OF CALIFORNIA, COUNTY OF SAN
DIEGO, c;:rry OF POWAY, DESCRffiED AS FOLLOWS:
Parcel A:-
Parcell of Parcel.Map No., 15255,.in the County of San Diegg, State of California, filed in the
Office of the County RecorderofSim Diego, June 06, 1988.
Parcel 8:
An easementfor ingress and egress, over, along and pcross that portion of Parcel 2 of Parcel
Map No. 15255, in theCi1'y of Poway, County of San, Diego, 'State of California, filed in the
Office of the County Record13r of San Diego, June 6, 1988, delineated as "mutual ingress and
egress easement reserved hereon".
Assessor's Parcel No: 317-190-44
EXHIBIT A