04-16-2013 - Penske Audi Soundwall - Item 10.pdfTO: Christopher J. Chung, City Manager
and City Council
FROM: Mike Lee, CDC Director
SUBJECT: PENSKE AUDI SOUND WALL
City of West Covina
Memorandum
AGENDA
• ITEM NO. 10
DATE April 16, 2013
RECOMMENDATION:
It is recommended that the City Council approve the attached Agreement of Construction and
Maintenance of a Soundwall between the City of West Covina and Penske Audi for the
construction of a masonry block wall on Penske Audi's property and authorize the City Manager
to implement said Agreement and take all further actions necessary to effectuate said agreement
with Penske and Caltrans.
DISCUSSION:
In 2010, the State of California Department of Transportation (Caltrans) informed the City of
their plans to proceed with the High Occupacny Vehicle lane expansion of the 10 Freeway
between Puente Avenue to Citrus Avenue (10 ROY Project). As part of the required mitigation
measure, Caltrans was required to construct a 14 feet high masonry block soundwall along the
State's right-of-way on the north side of East Garvey Avenue which is directly across the Penske
Audi dealership. The construction of this soundwall would essentially block the entire freeway
frontage of Penske Audi dealership (approximately 180 feet): Penske Audi has indicated that the
construction of this soundwall will be detrimental and may result in the closure of the dealership.
At the request of Penske Audi, the City requested Caltrans to explore other options that may
avoid construction of portions of the soundwall that will directly block the freeway frontage of
Penske Audi. Over the course of several months, Caltrans and Penske worked out an amenable
solution whereas Calfrans would eliminate portions of the soundwall directly in front of Penske
Audi provided the height of the remaining soundwall. is increased to 16 feet and Penske Audi
would construct a 10 foot high masonry block wall on the easterly property line of Penske Audi
dealership that is adjacent to the residential use. It was the understanding at that time by both the
City and Penske Audi that Caltrans would enter into an agreement directly with Penske Audi for
the proposed work.
On January 23, 2013, the City received a letter from Caltrans indicating that they will agree to
eliminate portions of the soundwall in front of Penske Audi only if they receive commitments
from the City to construct the wall on Penske's property at no cost to the State (Attachment No..
1). Caltran indicated to City/CDC staff that they no longer want to enter into an agreement
directly with Penske, but instead want a letter of commitment from City.
In order to effectuate this change from Caltrans, and the preserve Penske Audi's freeway
visibility, the City has been negotiating the attached Agreement of Construction and Maintenance
of a Soundwail with Penske Audi. The terms of the agreement are as follows:
• Penske shall construct a ten .(10) foot high masonry block wall located along the
easterly property line of the Dealership Property adjacent to the residential uses
located to the east.
• Penske shall bear any and all costs associated with constructing the soundwall
including, but not limited to, any and all costs incurred in connection with site plans,
building plans, engineering surveys, inspection fees, application fees, permit fees,
professional services, posting of construction performance bonds, labor, materials,
resources, and/or supplies necessary to construct the soundwall.
• The soundwall shall be constructed in accordance with the design standards,
specifications, and/or direction provided by Caltrans, if any, and, in addition to any
inspections and/or approvals required by the City: Penske shall obtain all necessary•
permits.
• Penske shall obtain permission and approval for the construction of the soundwall by
any and all property owners and/or other interested parties impacted by the
.construction of the soundwall, and shall take reasonable steps to minimize impacts on
such property owners and/or interested parties during the construction of the
soundwall.
• Construction of the soundwall shall be completed no later than one (1) year from the
date on which Caltrans awards a contract for the project. The Parties recognize that,
as of the date of this Agreement, it is anticipated that Caltrans will award the contract
for the Project in October 2013, a date that may be subject to change in the sole and
absolute discretion of Caltrans.
• At its sole cost and expense, Penske shall keep, own, and maintain the soundwall in a.
good and respectable condition by completing routine maintenance of the soundwall,
and, without limitation, promptly repairing any 'damage to, destruction of, and/or
dangerous condition existing on or arising out of the soundwall. The maintenance
. shall include maintaining the aesthetic and visual appearance of the sotmdwall by,
without limitation, completing any repainting, resurfacing, recoating, renovating,
and/or graffiti remediation necessary to prevent the soundwall from diminishing the
visual appearance of the neighborhood.
• Penske shall indemnify the City from any loss, injury, damage, claim, lawsuit, cost,
expense, reasonable attorney fees, litigation costs, or any other cost to the extent that
f arises out of or in any way is related to Penske's performance or nonperformance of
said Agreement.
At this time, Caltrans is seeking a letter commitment from the City. Caltrans, however, may
require a formal agreement in the future. As such, staffs reCommending includes authorization
that the City Manager to implement said Agreement and take all. further 'actions necessary to
effectuate said agreement with Penske and Caltrans.
FISCAL IMPACT:
There is no fiscal impact to the City as the entire cost of construction and future maintenance
will be the responsibility of Penske Audi.
Prepared by:
Mike Lee
CDC Director
Attachments:
Attaclunpnt No. I — Letter from Caltrans dated January 23, 2013
Attachment No. 2 —Agreement of Construction and Maintenance of a Soundwall
Cal/Penskesoundwall
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1'
STATE OF CALIFORNIA— BUSINESS, TRANSPORTATION AND HOUSING AGENCY t L. L. _ EDMUND G. BROWN Jr, Governor
DEPARTMENT OF TRANSPORTATION
DISTRICT 7
100 SOUTH. MAN STREET, SUITE 100
LOS ANGELES, CA 90012-3606
Telephone: (213) 897-0362,
Fax: (213) 897-0360
TTY 711
www.dot.ca.gov
Date: January 23, 2013
Project: Route 10 HOV Project
Puente Ave. to Citrus Ave.
EA 07-1170U
Subject: Penske Audi Soundwall
Mr. Chris Freeland
Deputy City Manager
City of West Covina
1444 West Garvey Avenue South
West Covina, CA 91790
Dear Mr. Freeland;
Earlier last year we had informed the City of West Covina and Penske Audi that a 14 feet high
masonry block soundwall would be constructed along the State right-of-way on the north side of
the East Garvey Avenue South, directly across from the dealership. The construction of this wall
is part of the proposed widening of the Interstate Route 10 (I-10) to construct High Occupancy
Vehicle (HO V) lanes in each direction from west of Puente Avenue in the City of Baldwin Park
to west of Citrus Avenue in the City of West Covina.
At your request we investigated whether a portion of the proposed soundwall located directly
across from the dealership can be eliminated. Our analysis indicated that we can eliminate that
portion of the soundwall, provided that the height of the remaining soundwall be increased to 16
feet, and that a 10 feet high masonry block wall be constructed along the easterly property line of
the Penske Audi dealership that is adjacent to the residential areas. The limits of the block wall
would be from the back of the sidewalk at East Garvey Avenue South to the dealership building
line. Please refer to the attached soundwall analysis configuration #8 indicating the location of
the block wall in relation to the freeway soundwall.
Currently the contract documents of the proposed Interstate Route 10 widening project include
the full length of the soundwall as originally proposed. Upon receiving a letter from the City of
West Covina stating the City's commitment to construct the wall on Penske Audi property at no
cost to the State and within one year of the award of the HOV contract, we will delete the portion
of the proposed soundwall from the contract documents and increase the height of the remaining
wall to 16 feet. The City may enter into a separate arrangement with Penske Audi for the
construction and maintenance of the wall on the dealership property.
Currently the award of the HOV contract is scheduled for October 2013. Caltrans will notify the
City of West Covina in writing three (3) weeks prior to the expected award date of the HOV
contract.
Sincerely,
areh Shahbazian P.E.
Office of Program and Project Management, Central
cc: Lindy Lee-Lovell, District Chief Deputy Director
Karen Fong, District Office Chief, Design D
Nader Gobran, District Design manager
Project File
State of California Business, Transportation and Housing Agency
Table 2. Analysis results for soundwall No.1946 (SW11) • Site Number of Represented Residences Project Traffic Noise Impact Y = impact N = no impact Soundwall No. 1 .946 (SW11) Feasibility
Y = benefited
N = not benefited
EOS = freeway edge of shoulder
Configuration (1)
Originally proposed
14Ft EOS soundwall
Begin 14Ft EOS soundwall
STA 1945+42
Configuration (8)
10 Ft private/city soundwall
16Ft EOS freeway soundwall
Begin 16Ft EOS soundwall
STA 1946+41-1952+50
Configuration (9)
10 Ft private/city soundwall
14Ft EOS freeway soundwall
Begin 14Ft EOS soundwall
STA 1946+41-Citrus Ave
Predicted
Noise
(dBA)
Noise
Reduction
(dBA)
Predicted
Noise
(dBA)
Noise
Reduction
(dBA)
Predicted
. Noise
(dBA)
Noise
Reduction
(dBA)
R1 1 '(/76 Y/68 8 '(/71 5 Y/71 5
R2 1 '(/74 Y/68 6 Y/68 6 Y/68
R3 1 '(/72 Y/66 6 Y/66 6 . Y/66 6.
R4 1 Y/69 Y/64 5 '(/64 5 Y/64 5
R5 1 Y/68 Y/63 ' 5 Y/63 5 Y/63 5
R6 1 Y/67 Y/62 5 '(/62 Y/62 5
R7 1 Y/66 Y/61 5 Y/61 5 Y/ 61 5
R8 1 Y/ 75 Y/68 7 Y/67 8 Y/68
R9 1 Y/73 Y/66 7 Y/66 7 Y/67 6
R10 1 Y/71 Y/65 6 '(/65 6 Y/65
Ru 1 '(/69 Y/64 Y/63 - Y/ 64
R12 1 '(/68 Y/63 5 '(/63 5 Y/63 5
R13 1 '(/69 Y/64 5 '(/63 6 Y/64 5
R14 3 Y/67 Y/62 5 '(/62 5 Y/62 5
R15 2 Y/69 Y/64 5 Y/63 6 '(/64
R16 2 Y/67 Y/62 5 Y/62 5 '(/62
R17 2 Y/68 Y/63 5 Y/63 5 '(/63 5
R18 2 Y/67 Y/62 5 Y/ 61 6 Y/ 62 5
Total Benefited
Receivers (out of 24) 24 24 24
"Caltrans improves mobility'across California"
lot sure or creporomo or. ITS orricras 07 rcrors SMALL NOT 11E RESPOYSIBLE (.07 ME roam, 07 02NIEISESS OF ELECTRON(' CCNES 0, INS PLAN SREET. IF P IMO MPAM WEST Cr,J W PROPOSED ' : SHOUt_OEP cOUNDWA[ 1 C I TY OF WEST COV I NA PROPOSED PR I VATE /C I TY PROPERTY SOUNDWALL BEND' I TED RES I DENCES INEIE=0153 BORDER LAST REVISED 3/1/2007 SW11-CFG8.dgn 11/2/2011 12:13:06 PM EA 000000 CU 00000 USERNAML m, FUSER DON RILE m, FREGUEST
TEI-j5DETER POST Yc4A PROJECT DIsr1 COutar 1 ROUTE -1-GiEEL SHEETS mamma EGISTENED CIVIL ENGINEER El PLANS APPROVAL DATE 'NE 51411 mhwarte OFF/CeRS oq SCENTS SNAIL 00181 Rupavs/RIC FOR Atreau, OR cowlerrnrss OF ELECTROVIC CONES OF IRIS PLAN SA%-rr. SWORN ...lbw MO Zs ...Tema= an,v, ..74"'4714ict, " " .,14*OfTVk53.PlieKTW,r5.*FE SUPERVISOR CJTY Or Y,U,T PRWOV-11 Fr?[FW' FlY OF ',HOULDFR F,(PWMA CITY OF WEST COVINA PROPOSED PRIVATE/CITY PROPERTY SOUNDWALL (..-.BILNEFITED RESIDENCES 1 DEMME •, SIDER DON TILE •) SREOUEST CU 00000 LA 000000, BORDER LAST REVISED 3/1/2007 SW11-CFG9.dgn 11/2/2011 11:37:37 AM
Attachment # 2
AGREEMENT FOR CONSTRUCTION AND MAINTENANCE
OF A SOUNDWALL
This Agreement For The Construction And Maintenance Of A Soundwall ("Agreement"),
dated April 16, 2013 for reference purposes, is made and entered into by and between the CITY
OF WEST COVINA, a California municipal corporation (the "City"), and, P.T. ENTERPRISES,
LLC, a California limited liability company and owner of that certain real property located at 2016
East Garvey Avenue South, West Covina, California 91791 ("Penske"). The City and Penske
are at times referred to herein individually as the "Party," and jointly as the "Parties".
RECITALS
WHEREAS, Penske's affiliate, Penske Audi West Covina, operates a car dealership at
2016 East Garvey Avenue South, West Covina, California 91791 (the "Dealership Property");
WHEREAS, the Dealership Property is bordered directly to the north by East Garvey
Avenue South ("East Garvey Ave"), and by Interstate Route 10 ("1-10") to the north of East
Garvey Ave;
WHEREAS, the California Department of Transpiration ("Caltrans") is proposing to
widen 1-10 to construct High Occupancy Vehicle lanes in each direction, from west of Puente
Avenue in the City of Baldwin Park, to west of Citrus Avenue in the City of West Covina (the
"Project");
WHEREAS, Caltrans has informed the City and Penske that the Project requires
construction of a fourteen (14) feet high masonry block soundwall along the State's right-of-way
on the north side of East Garvey Ave, and directly across from the Dealership Property
("Proposed Soundwall"), in order to shield residential uses located east of the Dealership
Property from noise generated by 1-10;
WHEREAS, the City and Penske have determined that construction of the Proposed
Soundwall would block-visibility of the Dealership-Property-from-the-I-10,-vvhich-would negatively
impact the business of Penske and the attendant sales tax revenues generated thereby and
realized by the City;
WHEREAS, Caltrans has informed the City and Penske that the portion of the Proposed
Soundwall located directly across from the Dealership Property may be eliminated if the height
of the remaining portion of the Proposed Soundwall is increased to sixteen (16) feet, and, in
addition, the City and Penske reach an agreement for the construction of a ten (10) feet high
masonry block soundwall along the easterly property line of the Dealership Property and
adjacent to the residential uses to the east (the "Soundwall");
WHEREAS, Caltrans has indicated that the Soundwall must run from the back of the
pedestrian sidewalk at East Garvey Ave to the dealership building line, as the location and
scope of the Soundwall is more particular described and identified in Attachment "A" hereto;
WHEREAS, Caltrans has further indicted that construction of the Soundwall must be
completed within one (1) year of the date on which Caltrans awards the contract for the Project,
which is anticipated to occur in October 2013;
WHEREAS, the City and Penske desire to enter into an agreement providing for the
construction and maintenance of the Soundwall at Penske's expense, and for the full
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cooperation and support of such construction and maintenance by the City, so that the portion
of the Proposed Soundwall located directly across from the Dealership Property will be
eliminated from the Project, to the mutual benefit of the City and Penske;
NOW THEREFORE, in consideration of the mutual covenants and promises herein
contained and other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, the Parties hereby agree as follows:
TERMS AND CONDITIONS
1. Recitals Incorporated.
The Parties acknowledge that the foregoing Recitals are a material part of this
Agreement, and therefore said Recitals are expressly incorporated herein and made a part of
this Agreement.
2. Construction of the Soundwall.
A. Penske shall construct, or cause to be constructed, the Soundwall, which shall
constitute a ten (10) feet high masonry block wall located along the easterly property line of the
Dealership Property adjacent to the residential uses located to the east, and running from the
back of the pedestrian sidewalk at East Garvey Ave to the dealership building line, as the
location of the Soundwall is more particularly described and identified in Attachment "A"
hereto, and as the specifications of said Soundwall may be further described and directed by
Caltrans.
B. Penske shall bear any and all costs associated with constructing the Soundwall
including, but not limited to, any and all costs incurred in connection with site plans, building
plans, engineering surveys, inspection fees, application fees, permit fees, professional services,
posting of construction bonds, labor, materials, resources, and/or supplies necessary to
construct the Soundwall in accordance with the terms of this Agreement.
C. The Soundwall shall be constructed in accordance with the design standards,
specifications, and/or direction provided by Caltrans, if any, and, in addition to any inspections
and/or approvals required by the City, shall satisfy and be subject to any inspections and/or
approvals required by Caltrans, if any. If no such design standards, specifications, and/or
directions are provided by Caltrans, then the Soundwall shall be constructed in accordance with
the "industry standard" for similar soundwalls existing throughout the State.
D. Penske shall timely and diligently apply for all necessary applications,
inspections, permits, licenses, and/or any other discretionary or ministerial approvals required to
construct the Soundwall in compliance with the terms of this Agreement and all applicable
federal, state, and/or local laws.
E. Penske shall endeavor to obtain permission and approval for the construction of
the Soundwall by any and all property owners and/or other interested parties impacted by the
construction of the Soundwall, and shall take reasonable steps to minimize impacts on such
property owners and/or interested parties during the construction of the Soundwall.
F. Subject to and conditioned upon Penske obtaining the permits and approvals
necessary to commence construction of the Soundwall as provided for in Paragraphs (D) and
(E) above, construction of the Soundwall shall be completed in accordance with the terms of this
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Agreement no later than one (1) year from the date on which Ca[trans awards a contract for the
Project. The Parties recognize that, as of the date of this Agreement, it is anticipated that
Caltrans will award the contract for the Project in October 2013, a date that is subject to change
in the sole and absolute discretion of Caltrans.
G. In the event Penske fails to complete construction of the Soundwall in
accordance with the terms of this Agreement, in whole or in part, the City, upon providing thirty
(30) day prior written notice to Penske of its failure to timely complete the Soundwall and upon
allowing a reasonable time for Penske to cure said non-performance, may in its sole and
absolute discretion complete construction of the Soundwall at its expense in accordance with
the terms of this Agreement, in which case the City shall be entitled to seek reimbursement from
Penske for any and all reasonable costs incurred thereby in accordance with any and all
remedies available at law. Nothing in this Paragraph shall be construed as requiring the City to
complete construction of the Soundwall in the event Penske fails to do so.
3. Maintenance and Repairs.
A. At its sole cost and expense, Penske shall keep, own and maintain the
Soundwall in good order and condition by completing routine maintenance of the Soundwall,
and, without limitation, promptly repairing any damage to, destruction of, and/or dangerous
condition exiting on or arising out of the Soundwall, without regard to the cause of the same.
The maintenance obligations under this Section shall include maintaining the aesthetic and
visual appearance of the Soundwall by, without limitation, completing any necessary repainting,
resurfacing, recoating, renovating, and/or graffiti remediation.
B. In the event Penske fails to satisfy its maintenance obligations under this
Section, in whole or in part, the City, upon thirty (30) days prior written notice to Penske and
upon allowing a reasonable time for Penske to cure said non-performance, in its sole and
absolute discretion may complete maintenance and repairs to the Soundwall as necessary to
bring the condition of the Soundwall into compliance with the terms of this Section„ in which
case the City shall be entitled to seek reimbursement from Penske of any reasonable costs
incurred thereby in accordance with any and all remedies available at law.
4. Obligations Of The City.
A. The City shall diligently and in good faith assist Penske in satisfying its obligation
to complete construction of the Soundwall in accordance with the terms of this Agreement.
B. The City shall support Penske in obtaining all permits, and/or approvals required
by state and/or local laws as necessary to complete construction of the Soundwall in
accordance with the terms of this Agreement.
C. The City shall diligently process any and all local applications, permits, and/or
approvals necessary for Penske to satisfy its obligations under this Agreement, and shall not
deny issuance of any such permit and/or approval absent noncompliance with legal
requirements or upon good cause.
D. The City shall monitor the status of the award of the contract for the Project by
Ca[trans, and shall provide Penske with written notice within ten (10) business days of the
award of such contract by Ca[trans, so that Penske may timely initiate and complete
construction of the Soundwall in accordance with the terms of this Agreement.
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E. Nothing in this Agreement shall require the City to construct, maintain, or to
complete construction of the Soundwall or to financially contribute to such. In the event Penske
defaults on its obligations to construct and/or maintain the Soundwall under this Agreement,
Penske shall indemnify the City relating to its involvement with Ca[trans concerning the
construction and/or maintenance of the Soundwall, and as such indemnity is further described in
Section 6 of this Agreement. By executing this Agreement, Penske assumes any and all legal
obligations to construct and/or maintain the Soundwall that otherwise may be or have been
attributed to the City by way of this Agreement, or otherwise at law.
5. Binding On Successors; Recording.
This Agreement, and all obligations hereunder, shall run with the land, and shall be
binding on the Parties, as well as their respective successors, heirs, and/or assigns, and shall
continue in effect until released by mutual agreement of the Parties, or their respective
successors, heirs, and assigns. This Agreement shall be recorded on the Dealership Property
in the Official Records of the County of Los Angeles by way of the Memorandum of
Maintenance Agreement attached hereto as Attachment "B"; but the failure to record this
Agreement shall not impact its validity, nor its binding effect on the Parties and their respective
successors, heirs, and/or assigns.
6. Indemnification.
A. The parties agree that the City, its officers, agents, employees and volunteers
shall, to the extent permitted by law, be fully protected from any loss, injury, damage, claim,
lawsuit, cost, expense, reasonable attorneys' fees, litigation costs, or any other cost to the
extent such arises out of or in any way is related to Penske's performance or nonperformance of
this Agreement and the terms thereof. Accordingly, the provisions of this indemnity provision
are intended by the Parties to be interpreted and construed to provide the fullest protection
possible under the law to the City against the intentional and negligent acts or omissions of
Penske. Penske acknowledges that City would not enter into this Agreement in the absence of
Penske's commitment to indemnify and protect City as set forth herein.
B. To the full extent permitted by law, Penske shall indemnify, hold harmless and
defend City, its officers, agents, employees and volunteers from and against claims and losses,
costs or expenses for damage due to death or injury to any person and injury to any property to
the extent such results from any alleged reckless, negligent, or otherwise wrongful acts, errors
or omissions of Penske or any of its officers, employees, servants, agents, or subcontractors in
the performance of this Agreement. Such costs and expenses shall include reasonable
attorneys' fees incurred by counsel of City's choice.
C. Penske agrees to be fully responsible and indemnify, hold harmless and defend
City, its officers, agents, employees and volunteers from and against claims and losses, costs or
expenses for any damage and injury to the extent such results from any alleged reckless,
negligent, or otherwise wrongful acts, errors or omissions of Penske, it's subcontractors, or any
other person or entity involved by, for, with, or on behalf of Penske in the performance or
nonperformance of this Agreement. Such costs and expenses shall include reasonable
attorneys' fees incurred by counsel of City's choice.
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7. Notices.
All notices, demands, or other communications provided for or permitted hereunder shall
be made in writing and shall be by certified mail, courier service, overnight mail, or personal
delivery:
A. If to the City:
City of West Covina
Community Development Commission
ATTN: Mike Lee, CDC Director
1444 West Garvey Avenue South
West Covina, CA 91790
With copy to:
Alvarez -Glasman & Colvin
ATTN: Christopher G. Cardinale, Esq.
13181 Crossroads Pkwy North — Suite 400
City of Industry, CA 91746
B. If to Penske:
Penske Audi West Covina
ATTN: Roger S. Penske, Jr., CEO
2016 East Garvey Avenue South
West Covina, CA 91791
With copy to:
SoCal Penske Dealer Group General Counsel
ATTN: Cynthia A. Thomas, Esq.
9136 E. Firestone Blvd.
Downey, CA 90241
All such notices, demands, and other communications shall be deemed to have been duly given
when received. Any party can, at any time, change its respective notice information by
providing notice to all other Parties as set forth in this Section.
8. Knowledge of Content and Advice of Counsel.
Each of the Parties hereto acknowledges that such Party has fully read and
comprehended the contents of this Agreement, and that such Party is in full agreement with
each and every one of the terms, conditions, and provisions set forth herein. Each of the
Parties further acknowledges that such Party has retained or has been advised to retain, his or
her own separate independent counsel in connection with the negotiation, drafting, and
execution of this Agreement, and has been fully advised and informed of the consequences of
executing the Agreement.
9. Drafting.
This Agreement shall be interpreted as if it were mutually prepared and drafted by all the
Parties, regardless of which Party or Parties had primary drafting responsibility, such that any
rule of construction that would otherwise require that ambiguities be resolved against the
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drafting party shall not apply. Pronouns shall be deemed to include masculine, feminine, and
neuter gender and singular and plural numbers as appropriate. The Section headings herein
are for convenience only and shall have no force or effect in the interpretation of the substantive
terms and conditions set forth in the text of this Agreement.
10. Choice Of Law, Venue.
This Agreement shall be governed and interpreted in accordance with the laws of the
State of California, and any action arising out of the Parties' respective obligations and rights
arising out of or related to this Agreement shall be brought exclusively in the Superior Court,
County of Los Angeles.
11. Attorneys' Fees.
If any Party brings an action to enforce or interpret the terms of this Agreement, the
prevailing Party shall be entitled to recover from the unsuccessful Party reasonable attorneys'
fees, costs, and litigation expenses (including, but not limited to experts' fees) incurred in the
prosecution or defense of such action.
12. Severabilit
If any section, paragraph, subsection, or provision of this Agreement that does not go to
the essential purpose of this Agreement is be held to be invalid or unenforceable, for any
reason, the remainder of this Agreement shall not be affected thereby, and shall remain in full
force and effect.
13. Integration; No Reliance; No Modification.
This Agreement constitutes the entire agreement and understanding of and between the
Parties with respect to the subject matter hereof, and to the extent this Agreement is
inconsistent with or contradicts any prior agreements and understandings of the Parties,
whether written or oral, express or implied, between them and with respect thereto, this
Agreement shall supersede and replace such prior agreements and understandings. Each
Party acknowledges and agrees that it is entering into this Agreement, and proceeding with the
transaction contemplated hereby, based upon its own investigation and evaluation, and that it
has not relied on any other Party to this Agreement or on any promises, representations, or
statements by any other Party with respect to past, present, or future matters not expressly set
forth in this Agreement. Any modification of this Agreement shall be specifically set for in a
writing which is executed by the Party to be bound.
14. Execution.
This agreement may be executed in duplicate counterparts and delivered by facsimile or
electronic delivery (e.g. PDF). Any executed counterparts, taken together, shall constitute the
entire Agreement between the Parties. A facsimile or electronically delivered signature shall be
deemed to have the force and effect of an original signature. In the event that a Party requests
an original signature, the Party to whom the request is made shall promptly deliver an original
signature to the requesting Party.
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15. Force Maieure.
Except as otherwise expressly provided in this Agreement, if the performance of any act
required by this Agreement to be performed by either Party is prevented or delayed by reason of
any act of God, strike, lockout, labor trouble, inability to secure materials, governmental laws,
regulations, ordinances or other covenants, restrictions or applicable requirements, or any other
cause not the fault of the party required to perform the act, the time for performance of the act
will be extended for a period equivalent to the period of delay and performance of the act during
the period of delay will be excused.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly appointed representatives.
[SIGNATURES ON FOLLOWING PAGE]
By:
THE CITY OF WEST COVINA, California
municipal corporation
Date:
By:
Shelly Sanderson, Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
ALVAREZ-GLASMAN & COLVIN
By:
Arnold M. Alvarez-Glasman
City Attorney
P.T. ENTERPRISES LLC
Date: 3—Z7-1,g By:
Roger S. Penske, Jr.
Manager/Member
APPROVED AS TO FORM:
CTinthid A. Thomas
General Counsel
Attachment "A"
91. REGISTERED MIL ENGINEER DATE ;77177,177717: V 'II, tNi w PLANS APPROVAL OAT Oat$1:111 CALIMOTIA OR 115 COMYRY OP AGERIS INAte 00101 RE11241101( fOR oat ACOAT4O1 as, ro.tf lOWSSat fareMOW COWS Or MIS RAN 201( 1. LIH1 MIEN , WpAV -4 _ • e#74,14',-;t1F,Aili,o ..-7•10,41 AW4W.411444 •••n•••n•11S1-,,,,,019;•11....".nn,krifrib,M. NeRNIN4v4.1441774.m. rJ,04r=Mfm.7.11, tii*10601ASINY ,,tirattaltigki;" -147:1:9416-3-741` -=:44E1GI=1,V;..:16FT- - IMUSEME _ CITY OF WEST COVINA PROPOSED PRIVATE/CITY PROPERTY SOUNDWALL /ER LAST REVISED 3/1/2007 ;8.dgn 11/2/2011 12:13:06 PM EA 000000 Cu 00000 VSERRAVE v,N,SER 001 VILE •I SREOJEST
Attachment "B"
ATTACHMENT "B" (MEMORANDUM OF MAINTENANCE AGREEMENT)
WHEN RECORDED RETURN TO
CITY OF WEST COVINA
1444 West Garvey Venue South
West Covina, CA 91746
Attention: Community Development Commission
MAIL TAX STATEMENTS TO:
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
No recording fee required; this document
exempt from fee pursuant to Section 27383 of
the California Government Code
MEMORANDUM OF MAINTENANCE AGREEMENT
This Memorandum of Maintenance Agreement is recorded to give notice of that certain
Agreement for Construction and Maintenance of a Soundwall ("Agreement"), dated
, by and between the City of West Covina ("City") and P.T.
Enterprises LLC, a California limited liability company ("Penske")
The Agreement requires Penske, it successors, heirs, and assigns, to keep, and maintain,
in good order, and condition, that certain masonry block soundwall ("Soundwall") constructed
and existing on that certain real property located at 2016 East Garvey Avenue South, West
Covina, California 91791 ("Property"), as the Property is legally described on Exhibit "A"
attached hereto, and as that Soundwall is more particularly identified and described in Exhibit
"B" attached hereto.
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum on the same date
as that of the Agreement first written above.
[SIGNATURES ON FOLLOWING PAGE]
Notary Public in and for said
County and State
"CITY" "PEN
By: By: /20E-le-- S. PENSE I JP—.) Me7148e-k_
Date: Date: March 27, 2013
STATE OF CALIFORNIA
)
) ss.
COUNTY OF Los Avt, le 5 )
On this 17 day of fl.,vtig , 2041 before me, Ca.511,lla yk ej- Notary Public,
personally appeared R 60 t.f- r. , personally known to me (or proved
to me on the basis of satisfactory evidence to be the person(s) whose names is/are subscribed to
this instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacities, 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.
MARK CASTELLANET comm. # 1950465 fn)
.10 NOTARY PUBLIC.CALIFORNIA z
LOS ANGELES COUNTY
My Comm. Exp. September 1,20151
STATE OF CALIFORNIA
)
) ss.
COUNTY OF
)
On this day of , 200, before me, Notary Public,
personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence to be the person(s) whose names is/are subscribed to
this instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacities, 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.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
EXHIBIT "A"
to Memorandum of Agreement
LEGAL DESCRIPTION
Real property in the City of Pomona, County of Los Angeles, State of California, described as follows:
THAT CERTAIN REAL PROPERTY, LOCATED AND SITUATED IN THE CITY OF WEST
COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 4, IN THE CITY OF WEST COVINA, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 14380, FILED
IN BOOK 142 PAGES 26 AND 27 OF PARCEL MAPS, IN THE OFFICE OF
THE COUNTY OF SAID COUNTY.
EXCEPT AN UNDIVIDED ONE-HALF OF ALL OIL THAT MAY AT ANY
TIME BE PRODUCED FROM SAID LAND OR ANY PART THEREOF, AS
RESERVED IN THE DEED FROM ROSEBUDD DOBLE MULLENDER,
RECORDED IN BOOK 11834 PAGE 341, OFFICIAL RECORDS
SAID PROPERTY IS COMMONLY KNOWN AS AND LOCATED AT 2016 EAST GARVEY
AVENUE SOUTH, WEST COVINA, CALIFORNIA.
EXHIBIT "B"
to Memorandum of Agreement
DESCRIPTION OF SOUNDWALL:
That certain masonry block wall located along the easterly property line of the Property adjacent
to the residential uses located to the east, and running from the back of the pedestrian sidewalk at
East Garvey Avenue to the dealership building property line, as the location of the wall is more
particularly described and identified in the following map attached hereto and incorporated
herein:
6i.2111hE elaJg gILEEEILLEININDM SfAII a MI/7MM 09 /IS 0770-RS ACColl Safi 0f RESFOWSte far MC AtiftruCt O 0A,,,t,17,MeSS faCIAVrtf 0,0°If.S 0, MIS FINI SW 4 111!:h-Ai! =-44.7.0V7,t7 TOM 1.• tivt---g4g6•.mm's,;;w - EXE OF WEST COVINA PROPOSED PRIVATE/CITY PROPERTY SOUNDWALL EA 000000 CU 00000 VSERNmE. •0•0600 Oct TILE •0 VEOJEST nER LAST REVISED 3/1/200T ;8.dgn 11/2/2011 12:13:06 PM
ATTACHMENT "B" (MEMORANDUM OF MAINTENANCE AGREEMENT)
WHEN RECORDED RETURN TO
CITY OF WEST COVINA
1444 West Garvey Venue South
West Covina, CA 91746
Attention: Community Development Commission
MAIL TAX STATEMENTS TO:
THE AREA ABOVE IS RESERVED FOR RECORDER'S USE
No recording fee required; this document
exempt from fee pursuant to Section 27383 of
the California Government Code
MEMORANDUM OF MAINTENANCE AGREEMENT
This Memorandum of Maintenance Agreement is recorded to give notice of that certain
Agreement for Construction and Maintenance of a Soundwall ("Agreement"), dated
, by and between the City of West Covina ("City") and P.T.
Enterprises LLC, a California limited liability company ("Penske")_
The Agreement requires Penske, it successors, heirs, and assigns, to keep, and maintain,
in good order, and condition, that certain masonry block soundwall ("Soundwall") constructed
and existing on that certain real property located at 2016 East Garvey Avenue South, West
Covina, California 91791 ("Property"), as the Property is legally described on Exhibit "A"
attached hereto, and as that Soundwall is more particularly identified and described in Exhibit
"B" attached hereto.
IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum on the same date
as that of the Agreement first written above.
[SIGNATURES ON FOLLOWING PAGE]
"CITY"
By: By: /el PMcAE, IL/16714 g ex_
Date: Date: March 27, 2013
STATE OF CALIFORNIA
) ss.
COUNTY OF Las A-" e 5
On this 17 day of PLI-41,, , 200, before me, friar //ant k Notary Public,
personally appeared k 0 p e, Jr, , personally known to me (or proved
to me on the basis of satisfactory evidence to be the person(s) whose names is/are subscribed to
this instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacities, 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.
WITNESS my hand and official seal.
MARK CASTELLANET 1 comm. # 1950465 2
NOTARY PUBLIC•CALIFORNIA
LOS ANGELES COUNTY
My Comm. Exp. September 1, 20151
Notar3iPublic in and for said
County and State
STATE OF CALIFORNIA
) ss.
COUNTY OF
On this day of , 200_, before me, Notary Public,
personally appeared , personally known to me (or proved
to me on the basis of satisfactory evidence to be the person(s) whose names is/are subscribed to
this instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacities, 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.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
EXHIBIT "A"
to Memorandum of Agreement
LEGAL DESCRIPTION
Real property in the City of Pomona, County of Los Angeles, State of California, described as follows:
THAT CERTAIN REAL PROPERTY, LOCATED AND SITUATED IN THE CITY OF WEST
COVINA, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 4, IN THE CITY OF WEST COVINA, COUNTY OF LOS ANGELES,
STATE OF CALIFORNIA, AS SHOWN ON PARCEL MAP NO. 14380, FILED
IN BOOK 142 PAGES 26 AND 27 OF PARCEL MAPS, IN THE OFFICE OF
THE COUNTY OF SAID COUNTY.
EXCEPT AN UNDIVIDED ONE-HALF OF ALL OIL THAT MAY AT ANY
TIME BE PRODUCED FROM SAID LAND OR ANY PART THEREOF, AS
RESERVED IN THE DEED FROM ROSEBUDD DOBLE MULLENDER,
RECORDED IN BOOK 11834 PAGE 341, OFFICIAL RECORDS
SAID PROPERTY IS COMMONLY KNOWN AS AND LOCATED AT 2016 EAST GARVEY
AVENUE SOUTH, WEST COVINA, CALIFORNIA.
EXHIBIT "B"
to Memorandum of Agreement
DESCRIPTION OF SOUNDWALL:
That certain masonry block wall located along the easterly property line of the Property adjacent
to the residential uses located to the east, and running from the back of the pedestrian sidewalk at
East Garvey Avenue to the dealership building property line, as the location of the wall is more
particularly described and identified in the following map attached hereto and incorporated
herein:
AZZ STAlt CR" IIINN11 OR Its OFFILTRS OR <COOS Snllt AOR RESICW1111.! ROW Mt AVOW, Or C00r.1717411 CitCRROWC COP/I'S OR Pet RUN SW,. ,inidon.h.',“ 'irli4-#174)%+*7•St'"?ii04414,X4e. 4-T -*vow 1:5ERDINALL-L11:6-""1,94 6:: { SW-1 I ) 11.1 2n!..• CITY OF WES f COV 1 NA PROPOSED PRIVATE/CITY PROPERTY SOUNDWALL >ER LAST REVISED vuzooi 38.dgn 11/2/2011 12:13:06 PM