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Home My WebLink About2006-259 RESOLUTION NO. 2006-259 1 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF VARIOUS DEFAULT ASSESSMENT 3 AGREEMENTS RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1022 (SAN BERNARDINO INTERNATIONAL AIRPORT/ALLIANCE-CALIFORNIA 4 LANDSCAPE AND LIGHTING MAINTENANCE ASSESSMENT DISTRICT). 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 6 OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and 8 directed to execute on behalf of said City, the "Agreement of Property Owners for Provision of 9 Landscape Maintenance Services for City Imposed Landscape and Street Lighting Maintenance 10 11 Assessment District" (also referred to as "Default Assessment Agreements"), which are attached 12 hereto as Exhibits I through 8, and made a part hereof, relative to proposed Assessment District 13 No. 1022, known as the San Bernardino International Airport/Alliance-California Landscaping 14 and Lighting Maintenance Assessment District, as set forth in the Engineer's Report for said 15 Assessment District, on file in the office of the City Clerk. The eight attached Default 16 17 18 19 20 Assessment Agreements are with the following property owners: 21 22 23 I. 2. 3. 4. 5. 6. 7. 8. HSB Gateway No. I, L.P. (Gateway Nort.h) HSB Gateway No.2, L.P. (Medline) Westgate No. I, L.P. (Pep Boys) Tec Parc Land, L.P. (Mattei) Inland Valley Development Agency (IVDA) (OF AS Property I & 2) Kohl's Department Stores, Inc. Stater Bros. Markets Matich Properties, LLC. SECTION 2.!n order that the deadlines of the San Bernardino County Tax Assessor are 24 met, only those Agreements properly executed and delivered to and accepted by the City 25 Engineer, or his designee, on or before July 31, 2006, shall be effective for the current fiscal 26 "ear. 27 /I 28 07/20/06 I 1 RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF VARIOUS DEFAULT ASSESSMENT AGREEMENTS RELATIVE TO PROPOSED ASSESSMENT DISTRICT NO. 1022 (SAN 2 BERNARDINO INTERNATIONAL AIRPORT/ALLIANCE-CALIFORNIA LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT. -4 5 6 Common Council of the City of San Bernardino at a i oint regular 7 3 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and held on the 24 th 8 Council Members: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ESTRADA BAXTER MCGINNIS DERRY KELLEY JOHNSON MCCAMMACK meeting thereof day of July AYES NAYS x x x x x x x , 2006, by the following vote, to wit: ABSTAIN ABSENT ~..L.L b. Ct,,Je City Clerk tl- The foregoing resolution is hereby approved this ~ day of July ,2006. 26 27 28 7/20/06 2 EXHIBIT 1 HSB GATEWAY NO.1, L.P. (GATEWAY NORTH) Recorded In Official Records, County of San Bernardino PLEASE COMPLETE THIS :NFORMATION LARRY WALKER Auditor/Controller - Recorder 8/04/2006 2:54 PM BGJ RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr~ James F. Penman,Esq. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 P Counter DocH: Titles: 1 Pages: 17 Fees 0.00 Taxes 0.00 Other 0.00 PAID !li0.00 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Title of Document HSB GATEWAY NO. I, L.P. (GATEWAY NORTH) THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev.6l00,ha) (Word/S:/Doc ExalT,/Co',er She".!t) Recording Requested By: ) ) City of San Bernardino ) 300 North "0" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "0" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of July 24, 2006, and evidences the agreement of HSB GATEWAY NO. I, L.P., a California limited partnership (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et ~., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "c" as attached hereto, the AD No. I 022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part II of the formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period oftime that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination ofthis Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No.1 022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment detennined pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Ownerrepresenting the costs incurred by the City for the default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscaoe Maintenance. (a) The Property Ownerrecognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No. 1022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full 2 force and effect and for the further purposes ofthe collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No. 1022 which are of bene fit to the Property as approved by the City !\lid installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner of the Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "c" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Rieht bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "cn within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the 3 maintenance or the furnishing of services described in Section I (c) andlor Exhibit "C" wiihin the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection of the annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence ofa third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street LilZhtinl!: District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No. 1022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) iItcidental costs associated with subparagraph (i), above, including the cost of (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: HSB Gateway No. I, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. 5 Section 8. First Year's Assessment. The 200612007 assessment to the PropertY Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire Al!\"eemenl Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder Or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 14. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnity and hold harmless City and its elected and appointed officials, officers, and employees from any and all c1aims,liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors 6 or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third PartY Beneficiarv Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at anytime to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counteroarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Coroorate Authoritv. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. 7 Section 22. Covenant Runninl! with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of,San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof, City of San Bernardino Property Owner: BY~ Patrick . Morris, a HSB GATEWAY NO. I, L.P., a California limited partnership SEAL ATTEST: By: DTC Phase II, LLC, a Delaware limited liability company, its general partner Q~k.~ Rach~Clark, City Clerk By: John M. Magness Senior Vice-President Approved as to Form: James . 9 CALIFORNIA ~J_"~~ ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY O~&--/.>&<>--.e/J U ) JJe:dlJ.yI1-M before me,~0ru.-.J1I/2,y/~f~ tl1gl!LJ ~ .n?eI~ NAME, TITLE OF OFFICER - E.G., "JAN OE, NOTARY PUBLIC" On i>7/0t. DATE personally appeared, -PaIn ~ ,;;; J7?Clr,/:i, personally known to me (or 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 instrumentthe person(s), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. JJ,f!/UV//J://1/~~~hh-)f)~AL) NOTARY PUBLIC SIGNATURE .........'.. .," . :.... I" '.", ';~ ..,.... '.. ." ,-:. ."" '. -," ;,. ~:~ 'i' OPTIONAL INFORMATION AfXt~rn..d).)- / /ror~ (!!)uhvy TITLEORTYPEOFDOCUMENTOh/b,lf-! JlSLS hMtu~ #0. / DATE OF DOCUMENT j6 7/0( NUMBEROFPAGES I,V SIGNER(S) OTHER THAN NAMED ABOVE I- I AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of.San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: By: HSBGATEWAYNO.I,L.P., a California limited partnership Patrick J. Morris, Mayor SEAL ATTEST: By: DTC Phase II, LLC, a Delaware limo I ability company, its ge pa er B ess esident Rachel Clark, City Clerk Approved as to Form: James F. Penman, City Attorney 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) ) SS. County of San Bernardino ) On Julv 19. 2006, before me, Marissa L. Johnson, Notary Public, personally appeared John M. Magness , ~ personally known to me o @ ~LJOIINION _ CommIIIIan" 1618620 NolaIy I'UIlIc . ~~.alla 1an",~..,CounIr- Mvc-.--'0cI9.2ooI 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. WITNESS my hand and official seal. ,J/a ~ JJlrn81h Signature of Notary Public ************************ OPTIONAL **************************** Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement of Property Owner for Provision of Landscape Maintenance Services for City Imposed Landscape and Street Lighting Maintenance Assessment District Document Date: July 19, 2006 Number of Pages: Twelve (12) Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: o Individual o Corporate Officer - Title(s): o Partner --0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Top ofthwnh here Signer is Representing: EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Parcel 1 of Lot Line Adjustment No. 05-05 Recorded November 16, 2005 as Instrument No. 2005-0861950 of Official Records, described as follows: Lots 2 and 3 of Block 46, of the Rancho San Bemardino on file in Book 7 of Maps, Page 2 thereof, Records of San Bernardino County, Califomia. 10 EXHIBIT "B" BOUNDARIES OF AD NO. I 022 AND SUBJECT PROPERTY 11 !': ~ ~ j; i. I eo IHh' . ! Q E Cl . t~! I ,I UOw I - i ~~~)Ii If , ;~!'~ lei 8 j . ~!~Ie'!, " f-b.o! ~ .I {i!l J, j'H! i ~ ~. r!' h;~ t Hi !i 5 I ~ft H~I . PI. } '~"' I" 11 ~~i.ll ih .. II~ __ ;; . . rOt,; ] J H; i ljt j ! di] :~ j o' j " ~ii~ !~'!.! " j "~Ii ~! ! ~ i--:" ~ "l5 Jl' !'!h 0 , l o !i"~ I I ~ I .! ,j '1"-' ~ " .:; 11 'Q"l5 "15 . t i2~ ~ u~ , ..tI~'" , '. 5 !~~l'lif ~ ! 1 II! I!"! . " ~ I . !!I- i~ " 0 '~l ush i I s i . ~ f · ~. .~ , !",;'t!" " e ~i!~!j!,18 ~ ~ i~I~~~!!3!~ ~ ~,~ " 0 " " . ~ 0 , E , ~~ ~ ! . " 1 " ~. I f '!i ~ .. ~ . 0 0 . '" l lig~ S I ~ [I '. ~l.fo l 0 ~_~f ~ . . 8 ~ I 1'6 . ~~s il; 0 ~ III . 0 i 1 !.i',II. . " , 1 g l'J! < . I-Z." .. 0 ~ ~ I I I ~~ iil I I!; !III ~ ~~ . . ~ ~ I'II l!s r i~~ ~!Ii I i De, c ~8 :g I ~ ~. ;:, , " . 8' , o . 1!1 Ii! 0 . . . . N I '.' I ~ ~ ~ " .' O"'1li ~ . go. . I:n I .on d ~~ z ~ I' ~ ~ ~ n. ~ -.i ! - ~ < 0 ~ z >- - "" ~ <( U ~ ~ ;;: W I I I .... I- ~ n ~ ~ <( '-' ~ ~ H ~ m ~ U ~ ~ (J) I ; ;; ! I uqH I u ~ ~ ~ I- iii · q a:o 0 ~ · i · Z fff! ~ >- <( IIIIIG ;;: w l- I <( '-' ~ ~gj. <(O~ 0:= ~ I C) (9O~ ~ <( Z ~ ('51- -I- ~ ::J~ Ou ,< 1-1- - zi WCI) I-g: eg ji!i5 Zoo ci~ li;!z wiS ~~ ~~ ~1- ~~ <gJ (j)z~:n ~m en ~ ~ ~~ UJ 00 0 ~ en 00 5 :5 CJ'JW~ <(oo~ 00 - <I: ( \ \ \ ~) '.::: . "., ~"'a:! , ~--- ~--;-llll ~@< ~ . B I .. @ ...J -............--.----------------...-........ .......- < . N ..' " . , o a:: a:i ~ . . ~ i -. ~ -- . .. ~ is .I!!!!!E~ ~ ~ z EXHIBIT "B" EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. /1/ //1 12 EXHIBIT 2 HSB GATEWAY NO. 2, L.P. (MEDLINE) PLEASE COMPLETE THIS INFORMATION Recorded In Official Records, County of San Bernardino 8/04/2006 LARRY WALKER 2:54 PM Aud~or/Contro"er - Recorder BGJ P Counter Ooc#: 2006 - 0533848 Tilles: 1 Pages: 17 11111111111 1111 Fees 9.00 Taxes 121.09 Other 0.9121 PAID $9.90 R~CORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman.EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Title of Document HSB GATEWAY NO.2, L.P. (MEDLINE) .~ THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev_ 6/00:ha) (V'!orr!'/S:/Doc Exam/Cover Sheet) I Recording Requested By: ) ) City of San Bernardino ) 300 North "0" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Pemnan, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "0" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of July 24, 2006, and evidences the agreement of HSB GA TEW A Y NO.2, L.P., a California limited partnership (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et ~., for the purpose of providing for the private maintenance and operation of . certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by I 1- the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "C" as attached hereto, the AD No. I 022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part IT of the formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part IT of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the ssme as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part 1, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default ofthe Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No.1 022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscaoe Maintenance. (a) The Property Ownerrecognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No.1 022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full 2 force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III ofthe formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No. 1022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner ofthe Property in the Part 1 common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Rillht bv City Enl!ineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5{b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the 3 maintenance or the furnishing of services described in Section l(c) and/or Exhibit "C" wiihin the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection ofthe annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part ill ofthe formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Comoonent. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No.1 022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confinned by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: HSB Gateway No.2, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. 5 Section 8. First Year's Assessment. The 2006/2007 assessment to the PropertY Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence ofthis Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuantto Section 12940 of the Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire A!!reemenl. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes of this Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section .4. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors 6 or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Partv Beneficiarv Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of prooffavoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counteroarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Coroorate Authoritv. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. 7 Section 22. Covenant Running with the Land. The provisions of this Mainienance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording, The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: BY:~~~ trick . Morris, Ma HSB GATEWAY NO. 2, L.P., a California limited partnership SEAL A TrEST: ~d.J 11. ~ Rach Clark, City Clerk By: DTC Phase II, LLC, a Delaware limited liability company, its general partner By: John M. Magness Senior Vice-President Approved as to Form: 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTYOF..s~ f3E:y/?ar-b/Ju ) lUo!k1 jJ)/b/; L before me,5;ABrt/t.mar/'i%TJt. (?"hc//o -/7}t/~ NAME, TITLE OF OFFICER - E.G.. "JANE ODE, NOTARY PUBLIC" On 7p7/0t, DATE personally appeared, jJ tU/r1 eIu :J:": fY? 0 r / J - ~ ....... personally known to me (or 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), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ~-#)~~~~ NOTARY PUBLIC SIGNATURE . OPTIONAL INFORMATION Ie A-e;cMY2~.;.//j-o/~ O?j/7~ TITLE OR TYPE OF DOCUMENT r::&;.Jb 'P$6 haHA~j}1 A/I) ~ DATE OF DOCUMENT 7/;;2'7/00 NUMBEROFPAGES /t/ SIGNER(S) OTHER THAN NAMED ABOVE AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: By: HSB GATEWAY NO. 2, L.P., a California limited partnership Patrick J. Morris, Mayor SEAL ATTEST: By: DTC Phase II, LLC, a Delaware limited liability company, its gene I partn By. Rachel Clark, City Clerk Approved as to Form: James F. Penman, City Attorney 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) ) SS. County of San Bernardino ) On Julv 19.2006, before me, Marissa L. Johnson, Notary Public, personally appeared John M. Magness , ~ personally known to me o @ WllllML JOINON CoI.oII'iIIIIol. # 1611620 NoIaIyNlllc. ~ Ian ............0 CounIy _c:-. ......Oct,,_ 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. WITNESS my hand and official seaL JI~c!7f. t.JJk1gJ-n Signature of Notary Public * * * ** * * * * * * * ** * ** * * * * * * * OPTIONAL * * * * * * * * * * * * * * * * * * * * * * * * ** * * Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement of Property Owner for Provision of Landscape Maintenance Services for City Imposed Landscape and Street Lighting Maintenance Assessment District Document Date: July 19,2006 Number of Pages: Twelve (12) Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: o Individual o Corporate Officer - Title(s): o Partner --0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Top of thumb here Signer is Representing: EXHIBIT "An LEGAL DESCRIPTION OF PROPERTY Purce! J of Certificate of Compliance fOf Lot Line Adjustment No. OS-I 0, recorded February 10, 2006, os Instrument No. 2006-0098997, Officiol Records, de.~Cfibed as follows: Lot t~ BI<<;k 46. Rwwho S't1n I1tJmf11'fllM. In th. CII;y oF San SmItItrIIno, Ctwn/y of StltI Smrtur:IIM, - of C<1IifDmIa, D8 IM'""", .rlCDldtJd In 8DDIt 7. PtI(/D .2 of AfDpr, In ~ om"" '" ~ Glwn(r fitIcfnrNr '" IIt1Id ct1IIn/y. ~t fl/lnfmm M. Ea~ fO.5!1 f.t ~"",f. 10 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 11 1:: ~ ... ~. i ~, I!!h' . ,!~ . ~ to .~! I ~ .! h ~l - I ~B!li I' , ~'2l~~ IOi w I p~rL J , ~!H_~lil~~ w x I HW1~ . il,., . I ~. h!! · ~.. i ~I . .l!.~ l} ht H,! . ~" lOl,f II ! i.! III i!, . . ~u, j; . I It " P i i ~H' ."l I ~" l . · I. I . i ,- j ~.11I ~ J I u &i~ ",I u l ~ ~ "': ~ '!i 'l! , i., .'!"I l ~ !i~'l!ll 1 . ~ I ~H 111~1 . " , 'ii',. , I 1!~ ~ ..~! .., ~, ~ j; U II: . ~ Ii! I l"' ". :5& ~i5~l lit ~u u , . "!j jl'lj u . I ~ I ~. !b. P g I iiJS w~ :'E!~ .. . i"",!l" ~~ ~e f!!~!CI:~"Cli . ~ i~lf!&_I!~) h U " U . '8 , E 1; h ~ ! I . I u ~d ~ IS ~ " '. I ~ . " . - " ~ ,~ b , s i I . y' ~ " ,g ~ " f i li3 ! ]8 ~ I 10 i ~ .3 j Iii i ~ 0 , I, , . "'[' " . ~ I i I ! i !h I. . ~ . ' E .~ ' . i=i~ 1; . i ~ I I I ~~ ~In ; ~dl~ I ~ ~~ I . ii'l ~~ I'II l!s f I~. ~ ~ . i ,,~ Ii c ( \ \ \ ~) ...::: u., OCl:aj " , . ~~. ~O~ ~ " .i " rnO ffi ;:; '-' . .... <l::Zt- ~ ~t; - is ...J- O()~<....~ - z Woo I-g: ~~6 Zen~~~!z WCi ~~ ~~ II1II:::: I- a::~ wOO .0:::: Z -. w CI) III a.. CI) CJ)~~ ~~ Wen" ~ ClJen55 CJ)w~ ...... en . ....... en - <( .. ~o 8 ~~. ;:, , - ., , 00 . ~ t!I 0 . . , 'i ~-----:-l--l Iii L . . ! i5 ~:g ~ g ~ a:: ,Ill I ~ ~ ~ I liB .. n '.' u .' OCt:o:i " > . '%@/ ~ i I .@ ~ / X<D'- ~_ @u.'V-O ~a:~@ ~ I @ d : 81 ~ I i~ ill> ..-. .......... ~ Il. ---1 I ~ ~ i N " . - ,.' u. , o a::,.; " . . < - -" ; ~~H SSi~i u ~ ~ ~ H i ~ a '" '" '" I I is is is i UHH iU H ~ U~ i H o z >- <C 3= w I- <C () CD Ul I . . . . - L ",m-..... u.' O"'rn " > 8 @ .... ..., -. - "" , Ii ~ ~ z w Z ---1 o w :2 ~ !SED 1118 ; EXHIBIT "B" 1- EXHIBIT "c" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the PropertY Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his autborized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the PropertY Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. /II /II 12 EXHIBIT 3 WESTGATE NO.1, L.P. (PEP BOYS) Recorded In Official Records, County 01 San Bernardino PL(ASE COMPLETE THIS INFORMATION LARRY WALKER Audttor/Controller - Recorder 8/04/2006 2:54 PM BGJ RECORDING REQUESTED BY: City cf San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 P Counter Ooc#: Titles: 1 Peges: 18 Fees 0.00 Texes 0.00 Other 0.00 PAID $0.00 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Title of Document WESTGATE NO. I, L.P. (PEP BOYS) THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3,00 Additional Recording Fee Applies) (Rev" 6/00:ha) (Word/S:/Dcc E"(arn/Co\er Sheet) Recording Requested By: ) ) City of San Bernardino ) 300 North "0" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office ofthe City Attorney ) City Hall, Sixth Floor ) 300 North "0" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofWESTGA TE NO.1, L.P., a California limited partnership (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. Obligations of Pro pert v Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et g;g., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. I 022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by 1 the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, ifnot, then only if agreed to in the sole and absolute discretion ofthe City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or his/her designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "C" as attached hereto, the AD No. I 022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part II ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination ofthis Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No. 1022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full 2 force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No.1 022 which are of benefit to the Property as approved by the City !lnd installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner of the Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "c" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv City Enaineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1 (c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereoffoIlowing at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shaIl have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shaIl have failed to perform the 3 maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection of the annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lillhtinll District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No. 1022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of(l) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "0" Street San Bernardino, California 92418 To Property Owner: Westgate No.1, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 With a copy to: Westgate No.1, L.P. 3141 Hood Street, Suite 700 Dallas, Texas 75219 Attn: Stacey Magee Fax: (214) 647-4901 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available tu the City pursuant to the Municipal Code or other applicable California law. 5 Section 7. Tenn of Alrreement. This Maintenance Agreement shall remain in full force and effect for a tenn of thirty (30) years and shall tenninate, unless tenninated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confinn in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor pennit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as pennitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire Atrreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The tenns of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or tenninated only by written agreement, signed by the parties in interest at the time of such amendment or tennination, except as also provided in Section 3, regarding tennination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the tenns, conditions, or provisions hereof. The costs, salary and expenses of the City Attomey and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed undel' the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6 Section 14. Indemnification and Hold Harmless. Property Owner shall protect, 'defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of orin any way colUlected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragrapps and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or intetpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of prooffavoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement ofa waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counteroarts. This Maintenance Agreement may be executed in one or more countetparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 7 Section 21. Comorate Authoritv. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are fonnally bound to the provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: BY:~ trick J. 10rris, May SEE ATTACHED SIGNATURE PAGE. SEAL ATTEST: ~ JJ. c-..I .~ hel Clark, City Clerk Approved as to Form: .Ie 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTYO~h.br/7ar-.f'n7J ) _ AJZ?I&r')I'K.ML ._ before me~ Wu- m?h-~A?t. ~bdh - /17 &~. ~.~ NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLlC"','-- On 7pJ/Ob DATE personally appeared. /Jam (l./L. .:i. )7? Ol/v personally known to me (or 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. WITNESS my hand and official seal. ~~/7?a~P/~~~~ ~ / NOTARY PUBLIC SIGNATURE e..' 0'1 ~:."': ", ,', " ,/Jfrt:tfl7<rt7 of /fr?'~ O~ w- TITLE OR TYPE OF DOCUMENT E:-rA/b ;L3,11fi/3 ~-::::z ;)63 DATEOFDOCUMENT %?7h(, NUMBER FPAGES~' OPTIONAL INFORMATION ......... ',., .... ',,'., ,.'. . ,', ",., . ." -. . .... . . ,. . ,'/ SIGNER(S) OTHER THAN NAMED ABOVE r-- " AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Signature Page Property Owner: WESTGATE NO.1, L.P., a California limited partnership By: HlLLWOOD LIT GP, LLC, a Delaware limited liability company, its general ner By: N e: Stateof~ ,} County of_~ ss. n ?l -,4/< before me, appeared , ersonal known to me (or 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 hislher/their authorized capacity(ies), and that by hislher/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. ~ dZjyJl~ ,,\\\\lllllllll/IJI/if!" ~\'\\ 0'11,1. #'" ~~S~X...G. ~~% $ ." "'tAR}' ....1-- '? ii! (ge!l:~""'<<'''' ( (~~~~\~) % '& ..f+.o Op TE~"'.... i \, ~o."'~~ES .... ~ ~~ C1 ......... *' 7";"11111/,; 2009 ,\\\\\\~~ 1/1/111'1111111\1\\\\1 EXHIBIT "An LEGAL DESCRIPTION OF PROPERTY 11 WESTGATE NO.1, L.P. LEGAL DESCRIPTION AFI'ERLOT MERGER Parcel A of Certificate of Compliance for Lot Merger recorded March 15 2006 as Document No. 2006-0176704, described as follows: ' PARCEL A Lot 1 and portions of Lots 2, 13 and 14 ~fBlock 45, of the Rancho San Bernardino on file in Book 7 of Maps , Page Z thereof, Rwords of Ban Bernardino County, C.Iifomia, located in the City of San Bernardino, and being more particularly described as follows: COMMENCING at the intenleclion oflbe cepterline of Tippecanoe Avenue and Mill Street as shown by Record of Survey No. 98-0019 on file in Book llO of Records olSurveys, Pages 51 through 53 thereof; Thence N.OO"25'OO"W. .Iong the centerline of said Tippecanoe AvOllu", . distance of 41.25 feet, to the easterly prolongation ofthe northerly line ofuld Mill Street, s.id northerly line being a line parallel with and 41.25 reet northerly of said centerline ofMiU Street, also being the POINT OF BEGINNING; Thence S.89G38'20"W. along said northerly line, . distance of 1 115.25 feet; Thence N.00OZ1'40"W., a distance of 1Z0.59 feet; Thence N.2ZG25'55"E., . distance ofI69.64 fee~ Thence N.OOOZs'OO''W., a distance of 1880.42 feet; Thence N.89GI9'5s"E, . distance of 563.12 feet; Thence S.89Gss'09"E., . distance of 486.16 feet, to centerline of said Tippecanoe AvOl1Ue; Thence S.00"24'SO"E. .Iong sald centerline, a distance of38.02 feet, to the intersection with the centerline ofH.try Sheppard Boll\evard; Thence S.OOGZS'OO''E. continuing along said center1ine of Tippecanoe Avenue, . distance of Z118.65 feet, to the Point olBeginning. SUBJECT TO easements for Public Street and Highway PIllJlOSCS over Tippecanoe Avenue and Mill Street in favor of the City of San Bernardino, by Instrument No. 2005-0306998, recorded May 2, 2005, Instrument No. 2005-0241118, recorded April 7, ZOOS, Instrument No. Z004-04s0030, FCcorded June 24, 2004 and Instrument No. 2002-0124767. recorded March 13, ZOO2, all ofOfficlalRecords of Ban Bemardino County, California K:\C1icnls\J210 fiillw(lod\Legal Deseriptions\1210.06 Par-Merg-Wcsq:alc--Prop,POfcc.Is.doc WESTGA TE NO. I, L.P. Lot Merger Page2of2 The above described parcel of land contains 52.300 acres, more or less. The above descnoed parcel of land being fonnerly described as Parcels I and 2 of City of San Bernardino Certificate of Compliance for Lot Line Adjustment No. 04-001, by Instrument No. 2004-0316870, recorded May 6,2004, Official Records of San Bernardino County, California. Kef CONSULTANTS, INC. Prepared under the supervisiou of: ~i:j#o'" ($~ J'", .'J'- MARISSA. ~ 's C\lifiWfHEIl '8 i:f ::rJ '~ ~.. co.P, - rPo.?l Marissa Crowther, PLS 6152 Date: ~ l\,~s- K:\CUcnts\J 2.1 0 HUlwoocl\Lcgal Dcscriptions\121 O..()(i Par-Mcrg~Weslgate-Prop-Parcels.doc EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 12 i ~ 0.- ....J , ~ < ~ 0 _ N" ~ Z ~ H ~ W I I I .... i- iii!. <C ~ ~H i C) I- (j] q ~ ~ , w hPH :s: <<<i~ffi iUb'~ (j] ~ffiH >- 0 CO I I 119 0.- w 0.- '---' ~ ~ ~ II i. i k I'! "' I ~. l' " : I il! ~ . 'h!~li Iii :;. '6' I~! - 1 , I:!" "i ~ j Ijlfoj~ ~ . ,l , ~.:, I r~i "U dO:! - ! .0 l! oj!l ii I-it HH t:l:" 11 ;1 . · !<.i :.1 < "0 :;i. .1 Ii II i.IU: ~!i l" uOOI! 1 ~ !IIC~ ih < j P'i 10, j ". :. i !', 1 .s;J !D.!!. k. I . " 'B~ !~~i " :illf! -! : . i:, ." i u I~ c: ~ 'l5 , !o ~ I I'" - : . :!~~, j I . i ~ " "' ilit.. ~~ i ;~~ ~ III , i. ~ i !I' ! :i' . ~5 tit~ Ilf ~" " I ~ I ". i . .. i i!.e =1 ! ~~ . r a,l -. .~ , !:iill'l5ISi~ ~5 Jj ~~I~o Ii ~f; ~ ~ i~I~I&,!!Aj . h 0" " " s , icE, 2 ~ ! I' ~ ~ ~.. ~ ~ . 1.1 : ill '2 10 o ' I' ., 1:; i ~ I ~ ill'l i ;; ~.; II i 1: ~ a. ~ ~ ~ Eli ~ : c ~ E "'!! = ~ ~:i ~.8 '" .5 ~gj. <( 0 ~ 0:: "": ~ " C>o~ ~ <( z ~ at- -I- LL :JQ O~ ~~ tuf!: 0:: ~ a: UJ en I-l-sgg:15 Zen g5 "'!Z W(5 ~~ ~~ -=:::: 2;1- <(I) -== I- a:i! wU) cnZ ::llll c..m en ~ ~ ~~ UJen~ z en en" :5 C/)W~ <(en~ en - <( ( \ \ \ ~) em::: U~, oC<ai ~ , o " co, "~, oO::ai u . m r.u............------------------------..--.....l @ @I Iii I . . I II .@~ <' em' '/I @ U~, Y-o ~Ct:~@ ? I -.-- ~____________......_..u................._. ~~<' ~ . . , em' u ~ , o Cl: ai ~ . -, ~ ""'" ..., ~ ~ -. - ~ i= 'I!!I(iJ ~ ~ Z . -.- ~ EXHIBIT "B" 11 1 n '. l;~~ ~ ~y "5 5- · ~ f ~ !]~ ~ ~ ~ I I g ~ ~ ili I i Z 5 I-I III ~ ~ I~ I ~~ I ~ Ou II. jjIJ ~~ III l!5 r I~~ ~!1i . i De, o ~8 8 ~ ~. ;:, " . 8' , o . Ii:! ~ 0 . 0 i ! ~ ~ .~ i Iii i I 0 z ~I~ l! ~ EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landso;;aping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts ofirrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. 1/1 III 13 EXHIBIT 4 TEC PARC LAND, L.P. (MATTEL) PLEASE COMPLETE THIS INFORMATION Reoorded In Official Records, County 0' San Bernardino ~ PC"",,, LARRY WALKER AudRor/Conlroller - Recorder 8/04/2006 2:54 PM BGJ RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 OocH: 2006 - 0533846 II " I "1111 "I Tilles: 1 peges: 17 Fees Taxes Other PAID 0.00 0.00 0.00 50.1313 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREE~ffiNT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING ~MINTENANCE ASSESSMENT DISTRICT Title of D9.cumenl TEC PARe LAND, L.P, ~MATTEL) THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev.6/00:ha) (Word/S.lDoc. Exam/Cover Sheet) . Recording Requested By: ) ) City of San Bernardino ) 300 North "0" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "0" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofTEC P ARC LAND, L.P., a California limited partnership (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et ~., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. I 022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of 2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "C" as attached hereto, the AD No. 1022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part II of the formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions ofthis Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part !, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscape Maintenance. (a) The Property Ownerrecognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No. 1022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full 2 force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No. 1022 which are of benefit to the Property as approved by the City ,and installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words ''maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner of the Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereoffollowing at least thirty (30) days' prior written notice ofthe City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the 3 maintenance or the furnishing of services described in Section I(c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection ofthe annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No. 1022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of( I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection ofthe assessments. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: TEC PARC LAND, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909)382-0073 With a copy to: TEC PARC LAND, L.P. 3141 Hood Street, Suite 700 Dallas, Texas 75219 Attn: Stacey Magee Fax: (214) 647-4901 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, atthe same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino prollerty taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. 5 Section 7. Term of Allreement. This Maintenance Agreement shall remain in fu11 force and effect for a term of thirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes of this Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed undel' the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6 Section 14. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnifY and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of orin anyway connected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Partv Beneficiarv Riahts. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any PartY by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either PartY at anytime to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision ofthis Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counteroarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 7 Section 21. Comorate Authoritv. The persons executing this Maintenance Agreeinent on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officets of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Ownet: ~ I By: <r:,r --- , atrick . Morris, Ma;: SEE ATTACHED SIGNATURE PAGE. SEAL ATTEST: ~-k1 h. (!J ..~ achel Clark, City Cletk Approved as to Form: 9 CALIFORNIA h_~-'~ Ii . " ~~ il I, . ~~ l' ~' J ~\''; ;':: ., :. '<'," ~ '0 ~'jL' ~;;i." "..~ ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF~/7 g'Vr/?thr&J/ 7)) On 7/.;> 71o~ DATE AJOftu-'1/t/.b)JL before me.;YSWZ:: t/mar/YJ?- 6hVItJ - JY)ht.p.< NAME. TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" personally appeared, hr/~;j, /f}oro 1 personally known to me (or 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), orthe entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ~~.dK~-m~)^ NOTARY PUBLIC SIGNATURE . OPTIONAL INFORMATION Itff'eVl7JwrI--/ /rtJj? OtJ/79/Y TITCED< ""'oE1J~\~~ff/~ Uh,rJ ( ma/kl) DATE OF DOCUMENT 1 7 tJ NUMBER OF PAGES ~ SIGNER(S) OTHER THAN NAMED ABOVE ~ AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Signature Page Property Owner: TEC PARC LAND, L.P., a California limited partnership By: Hillwood LIT GP, LLC, a Delaware limited liability company, its general er By: N : Title:_f16'daT Stateof /~ } County of .( ~ ss. lL n ~ ~ ~efore me, PI!f:;j /4, personally appeared personally kno to me (or 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. WITNESS my hand and official seal. Signature h -:B4~ - ~ \\\\\\lIUliiillil.'illl -:"",'\\""ci<Y G III"II~ *" G ~ * o..v .......... .t. ~ ~ v.....",.,RV....'T<<-% i ....~o .."....~% ~ . ~.)- .~< ~: a r .:..... ~ ~:~ o:-<~ ~ :.. y.....~ C?.:" ~ '% o....~+. Of: TEi-t-.... I ~}S: ...~(~~.~......'. J '//t1111~6. 200Q ,\\\,\\~' II/III/Illum"\\\\\\ EXHffiIT "An LEGAL DESCRIPTION OF PROPERTY 11 TEG PARe LAND, L.P. Property Description Alliance California Mattei Site Parcel I of City of San Bernardino Certificate of Compliance for Lot Une AdjuSbnent No. 2003-06, recorded July 2, 2003 as Instrument No. 2003-048648S, Official Records of San Bernardino County, Califomia, described as follows: Those portions of Lot 7 of Block 4~ and Lots S, 6, 7 and 8 of Block 49, all of the Rancho San Bernardino on file in Book 7 of Maps, Page 2 thereof, Records of San Bernardino County, California, located in.the City of San Bernardino, and being more particularly described as follows: BEGINNING at the intersection of the c.enterlines of Tippecanoe Avenue and Harry Sheppard Boulevard as shown on Record of Survey No. 97-0020, recorded in Book 109 of Record of Surveys, Pages 3 and 4 thereof, Records of said San Bernardino County; Thence N.7so44'SS"E. along the centerline ofsaid Harry Sheppard Boulevard, a distance of 4.98 feet, to an angle point therein; Thence N.79"34' IS"E. continuing along said centerline, a distance of 724.SS feet; Thence northeasterly continuing along said centerline along a tangent Curve concave southeasterly, having a radius of 1 030.80 feet, through an angle of 09026'22", and an arc length of 169.82 feet; Thence N.89000'37"E. continuing along said centerline, a distance of 6S4.77 feet; Thence N.OOoS7' 4S"W., a distance of 62S.14 feet; ThenceN.88DS3'IS"E., a distanceof44.S1 feet; Thence N.00"24'SO"W., a distance of761.96 feet; Thence S.880S7'SI"W., a distance 0000.09 feet; Thence N.OOOS6'02"W., a distance of 44S.7S; Thence S.88DS3'20"W., a distance of642.89 feel; Thence S.01006'S6''E., a distance ofS9.16 feet; Thence S.89035' 10"W., a distance of634.27 feet, to the centerline of said Tippecanoe Avenue; Thence S.00"24'SO"E. along said centerline, a distance of 1912.SS feet, to the Point of Beginning. SUBJECT TO easements over Tippecanoe Avenue and Han'Y Shepard Boulevard for public utilities and rights of way as they now exist. The above described parcel of land contains 63.202 acres, more or less. EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 12 ~ . 0 li ~ I'; Ii Uti" f u, l,ijI' 0 ~ I i! ~l . 'mli Iii - , , ~~~p It 1 i . IUf"H ! . ~ , ~"L J I r~:po c;,~ P!~ ~. .. ui> If~l! o h. ~_i , " Iln~ .' ~ !,.t .~" < U T'I" II t1.. ~ i'" E ~ i5 i- ! Ill"' ilt j ! I~H ]"~ i :<" z.; i b ! U ~j' h~i! J U ] :~II i .. i ~ ~ l~' ,'!.I " < ji.. q , < ~ .. i ! ~ I I'~ 1 . " ~ '_:liliOli i ll~ ~ II! ~~ ., l..&. ,," ! F ~5 f~a~ Ii, .~ ~ i"1 I ~., ~U dU . .. =II ~.il ~:4 I ! I ~~ .lr ~~ "" ~S I . I,.. ql" OU h h h ~~H,H ~e ~ i~!~1!S,!~J ~5 . U ::2:~. <(O~ O:::~ i '" (jO~ ~ <( ~ ~ gti ou ~~ l-g: a::: 5~ ~~ I-I-u;~~ Z!Q ~e Cl)ffi UJo ~~~::!: ~...... i~ <C~ Z ~t; ~m enuq ~'" en:::!!;" ",'" UJ (/) ~ ~ en (/) 0 :'\ en L.U ~ <( (/) z (/) - <i :........m...................m......m...__...] III I . < li , "E ~ '2 ~ . ! I' u i U ~. , W " ~1ii l ~1hii . ~ .. " ~~~ l , 'I ' . i c> ", ~~~ ~ . ""I i i~ a . 8 ~.U . i : I I ;; , 11 : I I . ! i III I ! . ~ 11'2;' 1& " < .,.p . . :J!!"" _ < . I-Z... .. i ~ I I i~; ~III ( ~ !dlll ~ ~~ I f ~~ I'II \ l!s r I~~ ~!1i . i \ De, 0 ~8 . \ 0 ~ ~ ~ ;:;- , N ~' , o . ) lit Li!C> . . ~ ~ I N N y., y., I ~ ~I a uo' U 0' ~Q:m O""ai > ~ . ~ . . . w r ~ ~ ~ . B ~ ; n ~ .; "I' z " z ~~ . c III I K @ e ; r--. " CL ~ -l . - i 0 _ N " z ~H ! <( -l , , , i i i z ~ () . n~ , 0:::: U 0' " ~ <( o ""ai n~ ~ ~ " . ~ CL w I , . . . . " . () Iii; ~ ; w ~ . I- z _ un q H -l .,; W "'!E~ ~ I- z .1 118 l- I <( :;;: '-../ . . N yW' U 0 , 0"" ai " . -. - .... ...., M , ~; I" EXHIBIT "B" EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times ofthe day and for such durations to be determined based upon the season ofthe year. III III 13 EXHIBIT 5 INLAND VALLEY DEVELOPMENT AGENCY (IVDA) (DF AS PROPERTY 1 & 2) PLEASE COMPLETE THIS INFORMATION Reoorded In Offlolal Records, County 01 San Bernardino "....~.....' '.':,'" . 'i/ -.:::. P Counler DocH: 2006 - 0533845 I III"'" "" "" J/~III'""" LARRY WALKER Auditor/Controller - Recorder 8/04/2006 2:54 PM BGJ RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street ~an ~ernardino, CA 92418 Tilles: 1 Pages: 17 Fees Taxes Other PAID 0.00 0.00 0.09 !Ii0.00 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAI~~ENANCE ASSESSMENT DISTRICT Tille of Document INLAND VALLEY DEVELOPMENT AGENCY (IVDA) (DFAS PROPERTY 1 & 2) THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev.6/00:ha) (WordiS:lDoc Exam/Cover Sheet) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office ofthe City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of July 2.+ , 2006, and evidences the agreement of the Inland Valley Development Agency, a joint exercise of powers authority (the "Property Owner"), as the owner of certain property within the boundaries ofthe City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City"). The Property is also referred to as the DF AS Property I and 2. THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto 4827-9034-7777.\ I illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereofthat are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion ofthe City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or his/her designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "c" as attached hereto, the AD No. 1022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part IT of the formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part IT of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part 1, Part IT and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default ofthe Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No.1 022 during the fiscal year in which the default occurs and in each subsequent fiscal year ofthe City thereafter. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions ofthe Property situated within the AD NO.1 022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting 4827-9034-7777.1 2 District Component"). The AD No.1 022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III ofthe formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No.1 022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part I ofthe Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner of the Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1( c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is 4827-9034-7777.1 3 defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1 (c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection of the annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part ill of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No. 1022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of (1) the preparation of annual engineering reports, (2) the levy ofthe annual assessments, and (3) the collection of the assessments. 4827-9034-7777.1 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Inland Valley Development Agency 294 S. Leland Norton Way San Bernardino, California 92408 Attention: Executive Director With a copy to: Lewis Brisbois Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Attention: Timothy J. Sabo (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) years and shall terminate, unless terminated sooner as permitted in 4827-9034-7777.1 5 r this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence ofthis Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 11. Entire Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes of this Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 14. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries 4827-9034-7777.1 6 to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance ofthis Maintenance Agreement. Section 15. No Third party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue ofthe authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision ofthis Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision ofthis Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder ofthis Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate Authoritv. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the 4827-9034-7777.1 7 provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 4827.9034.7777.1 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino BY:~ SEAL ATTEST: _~~,J k.~ Rachel Clark, City Clerk Approved as to Form: roperty Owner: Inland Valley Development Agency Co-Chairperson Co-Chairperson Approved as to Form: Timothy Sabo, Agency Counsel 4827-9034-7777.1 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA COUNTY O~ .J] W/Jari3/20 On 14J/t;J, DATE ;;Jz;/-tW'IIJ/)//L /~ before m~~fl7adU7~ &-b//p-/lJtI~, NAME, TITLE OF OFFICER - E.G., "JANE DOE, NOTARY PUBLIC" personally appeared./ tJh-;-e/.- ;r, MornJ personally known to me (or 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), orthe entity upon behalf of which the person(s) acted. executed the instrument. WITNESS my hand and official seal. A~/7l~&kM~~ NOTARY PUBLIC SIGNATURE . OPTIONAL INFORMATION II /t~~ //ro/;, OjJ/J't-v- TITLEORTYPEOFDOC~'NTdJ,.: /,b,b:,):,) .5 fj/LJ/! (fJr/?$ Fro/. /Y?~.J DATE OF DOCUMENT 7 Q 7/0 -.k NUMBER OF PAGES ) r SIGNER(S) OTHER THAN NAMED ABOVE Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. CITY: City of San Bernardino, a municipal corporation and charter city of the State of California By: Patrick 1. Morris, Mayor SEAL ATTEST: City Clerk Approved as to Form: City Attorney PROPERTY OWNER: Inland Valley Development Agency, a joint powers authority established under the laws of the State of California By: Donald 1. Rogers [Notary Acknowledgements Attached] Timothy J. Sa , Agency Counsel 4827-9034-7777.1 8 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) ) SS. County of San Bernardino ) On July 26, 2006, before me, Kelly K. Berry, Notary Public, personally appeared Donald L. Rogers, Del personally known to me D 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 histher/their authorized capacity(ies), and that by histher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. J@--. - - ::~!. iffl - - f i ^ Com,,' ,....... 1491061 !.. .. Nolaiy l'uIlIlc - CalIIomIa j . San Iemardtno Counly - _ _ _ ~~'~~2:~f WITNESS my hand and official seal. ************************ OPTIONAL ***** **** *********** Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement of Property Owner for Provision of Landscape Maintenance Services for City Imposed Landscape and Street Lighting Maintenance Assessment District Document Date: July 25, 2006 Number of Pages: Twelve (12) Signer(s) Other Than Named Above: Patrick J. Morris, Mayor, City of San Bernardino Capacity(ies) Claimed by Signer Signer's Name: Donald L. Rogers D Individual D Corporate Officer - Title(s): D Partner -- D Limited D General D Attorney-in-Fact D Trustee D Guardian or Conservator ~ther: Interim Executive Director Signer is Representing: Inland Valley Development Agency RIGHT THUMBPRINT OF SIGNER Top of thumb here EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY [Portion of DF AS currently owned by IVDA] Tract 1: - LOT 14, BLOCK 46, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 2, IN THE OFFICIAL RECORDS OF SAID COUNTY. Tract 2: THE EASTERLY 40.59 FEET OF LOT 13, BLOCK 46, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 2, IN THE OFFICIAL RECORDS OF SAID COUNTY. 4827-9034-7777 .\ 10 4827-9034-7777.1 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 11 i ~ ! I I ~i -'II II; IIII ~ ~~ I. ~~ III, l!s f !~~ ~ ~ . i 010 c 88 I/) I fh ;, l 8~ S Ii! Ii! 0 . . o 0 $ l i "., u ~, I ~ ~I ~ OO::o:i ~ , l - . . , I liii cl z ~~ " ! !5 . --- >- i u z w i C) <{ . I- ~ z I w ~ U i :2 It' ~ 0... i i i ~ i 0 II I ~ --.J ~ w ~~H . > ~ W ~ 15 l!l 1 , 0 . P 3 " ; ~ >- ~r ~ i U ; t W . . --.J ~ U · · ~ --.J n ~ i ; m <( > .1 118 0 z I <( --.J Z ~ ~ ~ . " ~ ~U i- i · 1'1 u, I 'i~' " II I' I . iliIii Iii ' H-. - , , ;~ll. lei ;;; ] .Hr'-'l ! - .3 ~ lil;l<:~ 'G . I i u 'l5 ~ij .10 8 J~}U i~ rl;; >ill I'" 11 . i !li II 'it iU . '5 .. 'S II ~llll ii. Uo ze.' i Ii IN. jll" lit ~ f~il .z~~ i .. I . .. l , I " ] . l! .so. c & U ~f~ _~;~! U _NI! ~ j l 5 ~ !" i " " , ll' i'I~1 Z "l~u~ I I , ~ ! ii! ~ I-ll . " ~ I'" ~~ . ] ~.~ i- n ii~J-lif . III !.!~i ~u dU < u. I ~ I ~... u ,h ~8 ~~ I , ",hi!- ~~ .' f r' " , ~U i l! ~ ~ !il; ~5 _'(lll~,d~'5I~ u. . Z~~ilei~~ ~~ ~u 0 U ou B " ]: _ E "5 ~ ! I j ~ ~i...1 r ! i [I ~ f ,~ I ,3 i 11'1 i '" i ! IIII i ~ jl~~lf ~ I/) ~z..,.8<\1 l: ~~. <(o~ 0:: """: ~ " C>o~ ~ <( ~ ~ g~ 00 o~~ I-~ - % Wen 1-0::1- ~l:!15 0:::::; 1-1- zw g<5 U)z W Ci ~~ U :;E~~~~m ~~n ~~ Woo 0 0 ~ z en 00 0 ::5 ClJW~ <(00. 00 - <( ( \ \ \ :.: ) U~, O""cri " . . r-...........-------.....-......------..........: j 1'1.. III I ~~< ~ ..-v........... ~-------_...._.--------------.._.....-..- . . N ..' U - , o a:: oj ~ , . 8 O"'ai " , -. ~ .... ..., ~ ~ I~ sEa <ri ~ i EXHIBIT "B" I 'g h u t bg li ~ ~4~ il. ~~~ ~ ~J8 i EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. /II /II 4827-9034-7777.\ 12 EXHIBIT 6 KOHL'S DEPARTMENT STORES, INC. PLEASE COMPLETE THIS INFORMATION Recorded In OIDclal Records, County of San Bernardino LARRY WALKER Auditor/Controller - Recorder RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 ~~ 91.'."........'" ,.r'" . ." P Counter OocH: 2006 - 0533844 l"I"IIII1I1I~ Tilles: 1 Fees Taxes Other PAID 8/04/2006 2:54 PM BGJ Pages: 16 0.00 e.ee 0.130 $0.00 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Tille of Document KOHL'S DEPARTMENT STORES, INC. THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3,00 Additional Recording Fee Applies) (Rev.6/00:ha) (Word/S:iDoc Exam/Cover Sheet) , Recording Requested By; ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To; ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of -:SUW 2.-i, 200~ and evidences the agreement of Kohl's Department Stores, Inc, a Delaware ~on (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS; Section I. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et ~., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas C:\Documents and Settings\carlyle\Local Settings\Temp\rnlt2B.tmp 1 thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet or a minimum area of 2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "c" as attached hereto, the AD No. 1022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part IT of the formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No.1 022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No.1 022 shall only include within the Property Owner Maintenance C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 2 Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No. 1022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner of the Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "c" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No.1 022. Section 3. Termination Right bv City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I(c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 3 Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I(c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection of the annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No.1 022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of(1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Kohl's Department Stores, Inc. N56 W17000 Ridgewood Drive Menomonee Falls, WI 53051 Attn: SVP of Logistics with a copv to General Counsel at same address (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to C:\Documents and Settings\carlyle\LocaJ Senings\Temp\mltlB.tmp 5 the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire Maintenance Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Maintenance Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis.Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 14. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnifY and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 6 Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate Authority. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 7 or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 8 " AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino BY:~ atrick J. orris, Ma Property Owner: KoW's Department Stores, Inc. SEAL ATTEST: ~~.1 ~.CI. ~ achel Clark, City Clerk BY~.~ Name: ent Title: SV Logistics Approved as to Form: James F, Penman, City Attorney STATE OF \.JlS~O$~ ) ) SS COUNTY OF ~ ) Personally came before me ,~~I~. da. y of I 'i .J I'r , 2006, the above-~am~d J l" W , to me ~~~\\~e p~c te the foregomg m~ kn I d d th __.r.'" ','r' C/', 'd. ac owe ge e Scu.l,~:."", r:~.,~;>n"~'f~:'( / 'l~itfJ .;;::.' 0 ~~. ~.. ..\......) .~.'~, .,":',: ,::".., " _. I)!. '.: ..... ,;' .~ 'l;~ .'; j STEVEN J. 1 J k . i ,,- i.Printed e THOMAS./~ l;Notary Pu~lic: State?f ~,' . . .... .{.,- /;: My CommiSSIOn exprres _ . />.'~.""'~r.r\.)'" ..:~,.. 'i.: Gt: \~hJ~~~ : <,>.\\\~;::'.t;:;:::~::;.."'" C:\Documents and Settings\carlyle\Local Settings\Temp\mltlB.tmp 9 CALIFORNIA h~0_"_~~ ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTY OF~ j5W/2t1Ar/Jt'Y)IQ) On l~//C?b , DATE J1)~-/dML-. before me.::)6YnL/J)~/WJLM; ~ m't1 Zyv, NAME, TITLE OF OFFICER. E.G., "JANE DOE, NOTARY PUBLIC" personally appeared. flJ.:/n t L;1.. /1)~ personally known to me (or 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. WITNESS my hand and official seal. J-,~&NfA-~- ~ NOTARY PUBLIC SIGNATURE @. C4A~'1612963 NDlaIy NIle . Cllllc ... I Ian ".~4L_ ~ CDINII......_...1 . OPTIONAL INFORMATION B 1l~~/j?rD/:. OJJ/I~ TITLEORTYPEOFDOC~"9'NT&)Yb/1 ? KolJ/~ LJe:p1. ~r 1/30 DATEOFDOCUMENT 7ld7/ 010 NUMBER~FPAGES /,5-- SIGNER(S) OTHER THAN NAMED ABOVE b' f!,.l \ r:'~ r'F h~....X~1! ~~D~ It -A---..'""","",-~- - ... '".~ .,,-,. ....:.-.,;~"t'..,., ,~' ....',,' - . - - -". .-....., EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY KOHL, J:l!lUG I Gron lot 3 lll'ld porllons of Lots 2. 4, 11, 12 and 1a of Block 45, Ranc:no San Bemal'l1ino, filed In Book 7 of Maps, "'. 2lheraof, Record$ d SlIn Ball13rdlno C<Junty, Cafrioml&, I~ether wilh Lol1S l!lnd porlionsof L.oll ~3, 1411ld 16 and o'toclcton Slrael (vaCSted), of Iha Ida Stockton F'1ve Acre SubdMs!on, filed In Sook 19 of Maps, Pages 57 and liS therlaf, Records of Sill Bernardino County, Callomia. IS WWrI by Reeosd of Survey No. 9s.001hn tile In Book 110 of Rfl<<)rd of Surveys, Pages 511hfoU$Jh 53 . thereof. R9cord$of San Bernardino Counjy, CalftClmia, aU beefed in fie City or San Bemardlno, and being more partiCUlaily deseilbed lla follO\9l; :. ;:.., ,~~: . COMMENCING at ~ Southwest comer of saId Let 4, beIns a poi!lt4'.25 feet I10Ihtly and 3IJ.oO feet westerly of the eenlerflll! !:lkulieaion d Lena Road and MA . Street as shown by said Record of Survey No, ee.oo19; Thenee N.OO"25'21'W. along the Westerly line of said L0l4, being a line pam/fer and 3e.OO teet westetfy or said centlilrline of Lena Read, a dislanQs d 299.S8 feet,. to the westerly plclonl1allon of 1l111IlOctl1llrty me of the soatllerly 300.00 teet of Rid Lot 4 M . s!lawn by saki ReC!Ord d Survey No. 98-0019; '. Thence N,8.9"38'35'E. along said v.-eslOOy produce<! northelly line. .. cl~ of 752.53 feel, 10 the POINT Of' eeGINNING; Thence N.OO"25'21'W, 8 cl'lSlanC!! of 12S0.00 filet; Thence 6 .B9039'04 W.. e cl'll5tanee of 752.00 fllfll, to tile Westerly line of $ai4 Lot 16, li4Iing a flne ~lIel and 30.00 feet W'e$telly of the eenletllne of said Lena Road as shown by laid Record of Survey No. 9$-0019; . Thence N.oo"2lY58W. along fiilld WesteI!y line, . distance of:.c07 .341eef, to the SoUlherly ~lCIe of the Dl'lllllage Ditch Easament as de$ai1led In OeecIreeon:!t!d June U, 194411I eool; 1693, PSf/i120 l/lereof, OffICIal Raoorc1s of San Bernardino County, Calltomfa; ThQn~ N.89"36'SS'E. along $lid saulhe1iy line, _ distan", of !l99~3 feel; Then~ I'lortheesfetly Ilong said $cutl1erty line, along a C'UlVe concave northwe$terly, having a radius of 225.00 feet. fhroUSlh s angle of 30.22'32' end 811 arc length 0/119.28 feel. to the east tine 01 said Lo113, 8/$0 be~ Wll$lline of said 1.0114; Thence N.59014'2S-e... a dlslar1ce of208.31 feet: Thence nOrlhellSletly a!ollg a Q,llW concave southeasledy, ha'ling a radius Of ~.OO feel. tnrouq/1 an Mgle Ojf 30'$0'26' and all m Iengl/l of 143.16 feet; Thence S.89"SS'OS'E.. tI dlsbrnC8 or715,48 fetll: C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B,tmp 10 , Thence 5.00"25'21'1.:., 8 dlslzUlce of2155..21 feel, to the noriheriy fine of I Street, being l!/ line parallel with and 41.25 feel northerly af the centerline of said I Stre~t: lbG!lce S.8S~3S'20"W. arong eald nol1herly lIne ~fMJlI Slm~ Ii dilltance C 228.80 feet. to the southeast cotnef of said Lot 3; Thence S.sso38'M'W. along said north4lrty line of MIa Stret-~ a distance c 807.34 relit. to the southeast comer of said l.oU as $hown by said' Record of SUI No. GoS..(X)f9; 1h:l1l~ N.OO" 1 i'SSW.llong lhe ea~r1y line or said Lot 4, a clsfance ell feet, to flTe north@dy line of the said llCIUl21eJ1y Soo..oo feet of lol4; . Thence s~a'3S'W" a alSlince of 58.81 feet. to the P~lnl Of Beg~rng. The above desCl'itl9J parcel of 2and centlins 60.2.511 aores, mol'll or less. . PRl~red tinder th& IUpeMsiot'l of: . I-.:!'P cP........,.4t~~ Jkrissa Cl\:lYr1her, PLS 5152 Date; 1(. J2.-C, C:\Documents and Settings\carlyle\Local Senings\Temp\mlt2B.tmp 11 . . EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 12 ~ ~ . ~!j ~i i ~ ,vi . 0" I"' I' . ,eO EO'; - iih~li lit ,J UOw I . 1 , ]'Zp 1&1 . ) ijif".lZ .\ i .118 l'!<l! 1 iZi 10 .~ ~ Z ,I. 'I Z ~" l~:t ~Hj ....0 Ii' ~i ! o~hi Zi p- 1 o , zW .1 Ii II ~ ~! Iz ." ~" . f~ i-~ )~; HI", ,Ii . 1 ~" 1 . i ~.I;) ~! ) ~i~ "'11 ) 0 ~ ~ " ~",:I" li li . ]., Iii · , z " z~ ~ j I ~ i ! -, I" ~ " ~ _lIliot; ~) li~ , il! ii ~'ti g"'s5i' , , , ~& fH~ I~t ~ . i i i Z"I ~ 0 . 0 I ~ 1 ~ I ~~ u !Z' i) ~ w~ 'or p -. ...,.qZ" I: i l! .!..~ ~' ~:! ~B ~J 8~a:ic IB ~ -~ i~~,1,!lB!!~J ~ 0 0 00 0 ;2:gj. ~~ I " <.9o~ ~ <( z ~ GO- -~... ::;g o c..> ~o. o-g' - Z Wen I-~u~~~ Zeng5C1lz wiS c~ o~ ;2:1- ~~ ;:;~ CJ)Z *<11 ~m en ~ ~ ~~ Wen 0 !i1 enen5 :5 enw~ ..... en z ...... en - <( ( \ \ \ :.:: ) v., Oa::a:j " > .--.-.-........--------.---.............--------.(..') . III L i @ . .@ ~ <' .. @ ~~~ ~O ~n:~@ ~ ...... - . . N .., o. , 0'" !Ii ~ . . -. ~ ~@<' ~ @ @ v., ocr,,; ~ . . ~ ~ jl 'I!!!I~ .,; '"' z EXHIBIT "B" . 5 1: E a . . I. ~ '3 I fr .. jol ~ _i I!! li-~i~ i a:: :l I . ~ i" I g.. 1'3 8.l " ;; ! " I i - l jjo 1& I " ~ E ...~:i ~ ~ ~;i':dldi c 11 u I I; ~~ ~ ~~o a ~g~ ~ ~~3 IE ~~ I I I ~i ilU I ~ ~ 11'1 ~~ p 3r; Cu I" U1~~1111 !!sf {A ~ ':i Q i DfJ It C ~8 ~ ~ ~. ;;, , N 8' , I!! 0 I!!:!l ~ ~ . W N i '.' i v., ~a:ai is ~ ~ r5 > g It:.EIl . r" I i Q I dn ,; z ~~ i < i- i!i I I < ~ ~ ~ ~! a I I I ! ~~S!i ! U i i l;l; ~ t I 'H3~~ Ulii! III i H I .1118 /"'. (.) Z (f) W 0::: o f- (f) f- Z w 2 f- 0::: <C Q.. W o (f) -.l I o Y: '-' .' EXHIBIT "c" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. /II /II C:\Documents and Settings\carlyle\Loca1 Settings\Temp\mIt2B.tmp 13 EXHIBIT 7 STATER BROS. MARKETS Recorded In Official Records, County of San Bernardino PLEASE COMPLETE THIS INFORMATION ~ '9 P Counter >;z< Doc#: 2006 - 0533843 " I 1/ I 1/ 1/1 ,,1/ LARRY WALKER Audnor/Controller - Recorder 8/04/2006 2:54 PM BGJ RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardlno, CA 92418 Titles: 1 Pages: 32 Fees 0.00 Taxes 0.00 Other 0.00 PAID 50.00 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER.S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Title of Document STATER BROS. MARKETS THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev.6/00:ha) (Word/S:JOoc Exam/Cover Sheet) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of -1u lu ~, 2006, and evidences the agreement of Stater Bros. Markets, a California corporation ~erty Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 1 the Property Owner (the "Property Owner Maintenance Areas"). AU other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same marmer as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shaU grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shaU mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "c" as attached hereto, the AD No. 1022 shaU be considered to be a "default assessment district" for which the City shaU forebear the coUection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part IT of the formula contained within the Engineer's Report. The City agrees to forebear the coUection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shaU consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved armual assessment shaU be coUected by the City. In such case the fuU amount of the armual assessment determined pursuant to Part I, Part II and Part ill of the formula contained in the Engineer's Report shaU be applicable to the Property. The City shaU thereupon calculate the fuU amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Ownerrepresenting the costs incurred by the City for the default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be coUected by the City shaU be in an amount to pay or reimburse the City for aU costs incurred by the City resulting from the default by the Property Owner including the costs of the armual maintenance of the landscaping and administration and coUection of assessments related to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal year ofthe City thereafter. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions ofthe Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No. 1022 shaU only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in fuU C;\Oocuments and Setting<)\carlyle\Local Settings\Temp\mlt2B.tmp 2 force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part ill of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No. 1022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part I of the Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner ofthe Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I(c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the C:\Documents and Settin~\carlyle\Local Settings\Temp\mlt2B.tmp 3 maintenance or the furnishing of services described in Section I(c) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection of the annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation of the amounts owed annually pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subjectto the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No. 1022 areas approved by the City and installed within the AD No. 1022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of (I ) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by C:\Documents and Settings\carlyle\l.ocal Settings\Temp\mlt2B.tmp 4 this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Stater Bros. Markets 21700 Barton Road Colton, California 92324 Attn: Phillip J. Smith Facsimile: (909)370-2390 With copies to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, California 92501 Attn: Bruce D. Varner, Esq. Facsimile: (951)274-7770 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 5 Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 ofthe Goverrunent Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 11. Entire Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. C:\Documents and Settings\carlyJe\Local Settings\Temp\mlt2B.tmp 6 Section 14. Indemnification and Hold Hannless. Property Owner shall protect, defend, indemnify and hold hannless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation ofthis Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue ofthe authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 7 Section 21. Corporate Authoritv. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office of the County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. III III [Signatures Follow On Next Page] C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino By:~~~~ ~oITIs,Mayor Property Owner: Stater Bros. Markets, a California corporation SEAL ATTEST: .Cf~ h.~ hel Clark, CIty Clerk By: Jack H. Brown, Chairman and CEO By: Bruce D. Varner, Secretary Approved as to Form: C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: Patrick 1. Morris, Mayor Stater Bros. Markets, a California corporation By: SEAL ATTEST: By: k H. Brown, hairman and CE ~~~ Bruce D. Varner, Secretary By: Rachel Clark, City Clerk Approved as to Form: James F. Penman, City Attorney C:\Documents and Settings\carlyle\LocaJ Settings\Temp\mIt2B.tmp 9 STATE OF CALIFORNIA ) ss. COUNTY OF SAN BERNARDINO ) On July 27,2006, before me, Marilyn Ryan, a Notary Public, personally appeared Jack H. Brown, personallyJ>.nmyn.ill!!!.C, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. MAIlLVN Il'tl\N . ComIlI' -, # 140611 Nolary NllIc . CaIIamIa b "',-<A.o Caunly MyCOmm. __Nlw2. WITNESS my hand and official seal. Place Notary Seal ~L<~~ Si alure of otary Public STATE OF CALIFORNIA ) ss. COUNTY OF SAN BERNARDINO ) On July 27,2006, before me, Marilyn Ryan, a Notary Public, personally appeared Bruce D. Varner, personally.kDmvn 10 me, proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. J----~#~I-F 1D6 -.......... I . .~~~~i WITNESS my hand and official seal. Place Notary Seal 1~b EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY C\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 10 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY LOT 7, BLOCK 48, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE(S) 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT A I" IRON PIPE WITH THE CITY OF SAN BERNARDINO TAG MARKING THE CENTERLINE INTERSECTION OF TIPPECANOE AVENUE AND MILL STREET, AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 100, PAGES 76 THROUGH 81, INCLUSIVE, OF RECORD OF SURVEYS OF SAID COUNTY; THENCE NORTH 00 25' 00" WEST ALONG THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 1338.06 FEET; THENCE NORTH 890 35' 00" EAST PERPENDICULAR TO THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 86.14 FEET TO A POINT IN THE EASTERLY LINE OF SAID TIPPECANOE A VENUE, SAID POINT BEING THE NORTHWEST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 00 25' 00" WEST ALONG SAID EASTERLY LINE OF TIPPECANOE AVENUE A DISTANCE OF 256.72 FEET; THENCE NORTH 890 00' 20" EAST A DISTANCE OF 421.79 FEET; THENCE SOUTH 00 59' 10" EAST A DISTANCE OF 256.71 FEET TO THE NORTHEAST CORNER OF SAID UNITED STATES FOREST SERVICE PARCEL, SAID CORNER BEING MARKED BY A 3" BRASS DISK STAMPED "USFS 1993"; THENCE SOUTH 890 00' 20" WEST ALONG THE NORTHERLY LINE OF SAID UNITED STATES FOREST SERVICE PARCEL A DISTANCE OF 424.34 FEET TO THE TRUE POINT OF BEGINNING. THIS LEGAL IS MADE PURSUANT TO THAT CERTAIN CERTIFICATE OF COMPLIANCE, CERTIFICATE NO. 98-002, RECORDED JULY 30, 1998, INSTRUMENT NO. 98-300250, OFFICIAL RECORDS. APN: 0136-341-17-0000 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERIT THAT PORTION OF BLOCK 48 OF RANCHO SAN BERNARDINO AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 2, RECORDS OF SAID COUNTY, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS; COMMENCING AT THE INTERSECTION OF THE CENTERLlNES OF OTTO GERICKE DRIVE AND HARRY SHEPPARD BOULEVARD, AS SHOWN ON RECORD OF SURVEY RECORDED IN BOOK 109, PAGES 3 AND 4, OF RECORDS OF SURVEY IN SAID OFFICE OF COUNTY RECORDER; THENCE NORTH 89" 00' 37" EAST ALONG SAID CENTERLINE OF HARRY SHEPPARD BOULEVARD, 368.06 FEET; THENCE SOlJTH 00" 59' 23" EAST, 40.00 FEET TO THE SOUTHERLY RIGHT-OF-WAY OF HARRY SHEPPARD BOULEVARD, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 00" 58' 49" EAST, 563.07 FEET; THENCE NORTH 89" 24' 21" EAST. 342.30 FEET; THENCE NORTH 01" 04' 03" WEST, 565.44 FEET, TO THE SOUTHERLY RIGHT-OF-WAY OF HARRY SHEPPARD BOULEVARD; THENCE SOUTH 89" 00' 37" WEST, ALONG SAID RIGHT-OF-WAY, 341.44 FEET. TO THE POINT OF BEGINNING. SAID LAND IS DESCRIBED PURSUANT TO CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 2001-005, RECORDED JUNE 7, 2001 AS INSTRUMENT NO. 01-220978 OFFICIAL RECORDS. APN: 0136-341-28-0-000 EXHIBIT" A" LEGAL DESCRIPTION OF PROPERTY THE LAND SHOWN ON CERTIFICATE OF COMPLlANCEIlOT LINE ADJUSTMENT NO. 2001, 004 RECORDED JUNE 7, 2001 AS INSTRUMENT NO. 20010220977 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED IN THE DOCUMENT AS FOLLOWS: IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF BLOCK 48 OF THE RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7 OF MAPS, AT PAGE 2, RECORDS OF SAID COUNTY, TOGETHER WITH PORTlONS OF VACATED STREETS AND ALLEYS LYING WITHIN AND ADJACENT TO SAID BLOCKS, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLlNES OF TIPPECANOE AVENUE AND MILIL STREET; THENCE, NORTH 89"39'04" EAST, ALONG SAID CENTERLINE OF MILL STREET, 541.14 FEET, TO THE CENTERLINE OF MEMORIAL DRIVE; THENCE, NORTH 00"59'10" WEST, ALONG SAID CENTERLINE OF MEMORIAL DRIVE, 426.36 FEET, TO THE CENTERLINE OF PAUL VILLASENOR BOULEVARD (PROPOSED STREET); THENCE, NORTH 89"00'52" EAST, ALONG SAID CENTERLINE OF PAUL VILLASENOR BOULEVARD (PROPOSED STREET), 299.00 FEET; THENCE, AT RIGHT ANGLES TO SAID CENTERLINE, NORTH 00"59'08" WEST, 44.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, NORTH 00"59'10" WEST, 689.75 FEET; THENCE, NORTH 89"02'13" EAST, 351 07 FEET; THENCE, SOUTH 00"59'17" EAST, 689,61 FEET, TO THE NORTHERLY LINE OF PAUL VILLASENOR BOULEVARD (PROPOSED STREET); THENCE, SOUTH 89"00'52" WEST, AlONG SAID NORTHERLY LINE, 351.09 FEET, TO THE POINT OF BEGINNING. APN, 0136-341-26-0000 Exhibit "A. IN THE CITY OF SAN BERNARDINO, COUN1Y OF SAN BERNARDINO, STATE OF CAUFORNIA, BEING A PORTION OF BLOCK 48, RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7, PAGE 2, RECORDS OF SAID COUN1Y, TOGETHER wrni PORTIONS OF VACATED STREETS AND ALlEYS LYING WITl-IIN AND ADJACENT TO SAID BLOCK DESCRIBED AS FOLLOWS: COMMENONG AT THE INTERSECTION OF THE CENTERUNES OF TIPPECANOE AVENUE AND MILL SffiEET, PER RECORD OF SURVEY, RECORDED IN BOOK 100, PAGES 76 THROUGH 81, RECORDS OF SAID COUN1Y; THENCE ALONG SAID TIPPECANOE AVENUE CENTERUNE, NORTH 000 26' 01" WEST, 1, 808.90 FEET; THENCE PERPENDICULAR TO SAID CENTERUNE, NORTH 890 34' 59" EAST, 86.14 FEET TO THE EAST RIGHT-OF-WAY UNE OF SAID l1PPECANOE AVENUE, AND THE TRUE POINT OF BEGINNING; THENCE ALONG SAID EAST RIGHT-OF-WAY UNE, NORfH 000 25' 01" WEST; 304.06 FEET; THENCE LEAVING SAID RIGHT-OF-WAY UNE, 3go 03' 37" EAST, 31.60 FEET, A UNE PARALLEL AND 40 FEET SOUTHERLY OF THE CENTERUNE OF HARRY SHEPPARD BOULEVARD AS SHOWN ON RECORD OF SURVEY 97-0D8, RECORDED IN BOOK 109, PAGE 6 AND 7, RECORDS OF SAID COUN1Y; THENCE ALONG SAID SOUTH RIGHT-Of-WAY UNE, NORTH 79034' 15" EAST, 348.23 FEET; THENCE LEAVING SAID RIGHT, SOUTH 500 42' 27" EAST, 34.26 FEET; THENCE SOUTH QQO 59' 10" EAST, 363.18 FEET; THENCE SOUTH 8go 00' 29" WEST, 393.00 FEET TO SAID EAST RIGHT-Of-WAY UNE Of TIPPECANOE AVENUE AND THE POINT Of BEGINNING. APN: 0136-341-33-0000 PARCEL 1-2 Property acquired from IVDA Page 1 of 11 EXHIBIT "A" In the City of San Bernardino, County of San Bernardino, State of California, being those portions of Block 48 and 49 of the Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacent to said block and lots, described as follows: BEGINNING at the centerline intersections of Harry Sheppard Boulevard and Del Rosa Drive as shown on Rer.ord of Survey, filed in Book 109, Pages 3 and 4, of Record of Surveys of said County; thence along the centerline of said Harry Sheppard Boulevard, South 89"00'37" West, a dist<;lnce of 149.32 feet to the beginning of a tangent curve concave southerly, hav.iog a radius of 1,200.75 feet; thence westerly along said curve and centerline, through a central angle of 2051'45", an arc distance of 59.98 feet; thence continuing along said centerline, South 86"08'52" West, a distance of 40.12 feet to the beginning at a tangent curve, concave northerly, having a radius ot 1,200.75 feet; thence westerly atong said curve and centerline, through a central angle of 2"51'45", an arc distance 01 59.99 leet: thence continuing along said centerline, Soulh 89"00'37" West, a distance of 32.72 leet; thence at right angles to said centerline, South 00059'23" East, a distance 0140.00 feet; thence South 01"04'03" East, a distance of 565.44 feet; thence South 89"24'21" W est, a distance at 342.30 feet; thence North 00"58'48" West, a distance of 563.07 feet; thence North 00"59'23" West, a distance of 40.00 feet to the centerline of said Harry Sheppard Boulevard; thence along said centerline, South 89000'37" West, a distance of 1,004.66 leet to the beginning ot a tangent curve concave southerly, having a radius of 1,030. 73 teel; thence westerly along said curve and centerline, through a central angle of 9026'22", an arc distance of 169.81 feet; thence continuing along said centerline, South 79034'15" West, a distance of 208.69 feet; thence leaving said centerline, South 00' 59'10" East, a distance 01 548.55 teet; thence North 89000'50" East, a distance at 305.00 feet; thence South 00"59'10" East, a distance at 506.50 feet; thence South 89000'50" West, a distance of 305.00 teel; thence South 00'59'10" East, a distance of 752.02 feet; thence North 89000'52" East, a distance 01 305.00 feet; thence North 00"59'10" West. a distance of 715.74 feet; thence North 89"02'13" East, a distance of 351.07 feet; thence South 00'59'17" East, a distance 01715.60 feet; thence North 89000'52" East, a distance 01105.96 feet; thence North 00056'06" West, a distance of 25.99 feet; thence North 89000'52" East, a distance of 1,257.97 feet; thence North 01 '09'52" West, a distance of 1,794.41 feet; thence North 89000'37" East, a distance of 4871 feet; thence North 01 '09'52" West, a distance of 40.00 feet to the intersection 01 centerlines of I;'IVOA PROJ(CT\LEGAlSINe....FDldel'P3fcell-2 10.2002wpd Page 1 of 2 PARCEL 1-2 Property acquired from IVDA Page 2 of 11 said Harry Sheppard Boulevard and said Del Rosa Drive and the POINT OF BEGINNING Bearings and Distances used in the above description are on the California Coordinate System, Zone 5 (NAD-83). Multiply distances shown by 1.0000684 to obtain ground level distances. END OF DESCRIPTION This real property description has been prepared by me, or under my direction, in con~ormance with the Professional land Surveyors Act. Signature Professional Land Surveyor Date f'ul"? I:WOA PROJECnL EGAlS\NewFoldcr\Parcel1-2 10.2002 wpd Page 2 of 2 PARCEL K-2 Remainder LEGAL DESCRIPTION Property acquired from IVDA Page 3 of 11 In the City of San Bernardino, County of San Bernardino, State of California, being a portion of Lot 7, Block 48, Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacenllo said block and lots, described as follows: COMMENCING at a 1" iron pipe with the City of San Bernardino tag marking the centerline intersection ofTippecanoe Avenue and Mill Street, per Record of Survey filed in Book 109, pages 6 and 7, inclusive, of Record of Survey of said County; thence, North 00"25'01" West, along the centerline of said Tippecanoe Avenue a distance of 1,594.77 feet and the TRUE POINT OF BEGINNING; thence along said centerline, North 00"25'01" West, 214.99 feet; thence at right angles to said centerline, North 89"34'59" East, 86.14 feet, to the southwest corner of that parcel of land conveyed to the Smart Start Child Development Center, by Quitclaim Deed Number 20020165818, Recorded April 4, 2002, Records of said County also known as K-2, thence along south line of said parcel, North 89"00'29" East, 431.00 feet, thence leaving said south line, South 00059'10" East, 214.96 feet to the easterly prolongation of the northerly line of that parcel of land conveyed to the Norton Credit Union, by Quitclaim Deed Number 19980168698, Recorded May 4,1998, Records of said County, also known as Parcel K-3; thence along said easterly prolongation of the northerly line of said parcel, South 89"00'20" West, 433.14 feet to the easterly right of way line of Tippecanoe Avenue; . thence South 89"34'59" West, 86.14 feet to centerline of Tippecanoe Avenue and the POINT OF BEGINNING. SUBJECT TO easements over Third Street and Del Rosa Drive for public utilities and right of way as they now exist. Bearings and Distances used in the above description are on the California Coordinate System, Zone 5 (NAD-83). Multiply distances shown by 1.0000684 to obtain ground level distances. END OF DESCRIPTION Signature Professional Land Surveyor Date --4-0 (o/n ")~ PARCEL K-4 LEGAL DESCRIPTION Property acquired from IVDA Page 4 of 11 In the City of San Bernardino. County of San Bernardino, State of California, being a portions of Lots 5 and 6, Block 48, Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacent to said block and lots, described as follows: COMMENCING at a 1" iron pipe with the City of San Bernardino tag marking the centerline intersection ofTippecanoe Avenue and Mill Street, per Record of Survey filed in BOQk 109, pages 6 and 7, inclusive, of Record of Survey of said County; thence, North 00025'01" West, along the centerline of said Tippecanoe Avenue a distance of 41.25 feet, to the westerly prolongation of the northerly right-of-way line of said Mill Street and the TRUE POINT OF BEGINNING; thence continuing along said centerline line, North 00025'01" West, a distance of 786.66 feet, thence at right angles to said centerline, North 89034'59" East, 86.14 feet to the easterly right of way line of Del Rosa Drive; thenc',e, North 89000'20" East, a distance of 44l.76 feet, thence, South 00059'10" East, a distance of 388.72 feet, thence, North 89000'52" East, a distance of 762.05 feet, to the west line of the San Bernardino International Airport Property; thence, South 00056'06" East, a distance of 411.52 feet, to the north right-of-way line of Mill Street; thence along said right-of-way line, South 89039'04" West, a distance of 1,29646 feel. to the POINT OF BEGINNING. SUBJECT TO easements over Tippecanoe Avenue for public utilities and right of way as they now exist. Bearings and Distances used in the above description are grid, based on the California Coordinate System, Zone 5 (NAD-83). Divide distances shown by 0.99993157 to obtain ground level distances. END OF DESCRIPTION Dale_ Signature , , ~ ~ Property acquired from tVDA Page 5 of 11 EXHIBIT A A PORTION OF BLOCK 48 OF THE RANCHO SAN BERNARDINO PER PLAT RECORDED IN BOOK 7, PAGE 2 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA. COMMENCING AT A In IRON PIPE WITH THE CITY OF SAN BERNARDINO TAG MARKING THE CENTERLINE INTERSECTION OF TlPPECANOB AVENUE AND MILL STREBT, AS SHOWN ON RECORD OF SURVEY FU-ED IN BOOK 100, PAGE 76 THROOOH 81,INCLUSlVE, OF RECORD OF SURVEYS OF SAID COUNTY: THENCE NORTH 0"25'00" WEST ALONG THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 828.94 FEET; THENCE NORTH 89"35' BAST PERPENDICULAR TO THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 86.24 FEET TO A POINT IN THE EASTERLY LINE OF SAID TIPPECANOE AVENUE. SAID POINT BEING THE SOUffiWEST COBNER OF THE UNlTED STATES FOREST SERVICE PARCEL, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; 'I1IENCB NQRTH 89"01'26' BAST A DISTANCE OF 402.70 FEET TO THE SOUTHEAST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL, FROM WIllCH A 21/2 "BRASS DISC STAMPED "USPS SE CORNER R.P .26.66' 1m" BEARS NORm 89001'26" BAST 26.66 FEET; THENCE NORm 0059'10" WEST, ALONG THE WESTERLY LINE OF MEMORIAL DRIVE, A DISTANCE OF 509.17 FEET TO THE NORTHEAST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL FROM wmCH A 2 1/2 n BRASS DISC STAMPED 'USPS NB CORNER R.P. 26.67' 1999" BEARS NORTH 89000'21" EAST, 26.67 FEET; THENCE SOUTH 89"00'21" WEST A DISTANCE OF 397.64 FEET TO THE NORTHWEST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL FROM wmCH A CONCRETE NAn.. AND TAG STAMPED "185104" BEARS NORTH 89"00'21" EAST, 0.16 FEET; THENCE SOUTH 0"25'00" EAST ALONG THE EASTERLY LINE OF TIPPECANOE AVENUE A DISTANCE OF 509.07 FEET TO THE TRUE POINT OF BEGINNING, CONTAINING 4.68 ACRES. END OF DESCRIPTION Farmar NOI1On AFD. CA 13 Parcol D-\ c.C'z~1on: 8M Bernard.tno,CA Docuroent-Yau.OOcID 200S.J45'77 page: 13 Q~ 16 rder: .l)l.J:y Co.IftIIIGnt: ... .- SBlAA PARCELS- .EXHIBIT "A" Legal Description Property acquired .from IVDA Page 6 of 11 IVDAlSBIAA Land Transfer ParcelS Those portions of Parcels "A", "AI", and "AS" as shown Record of Survey No. 97-0077 in the City of San Bernardino, County of San Bernardino, State ofCaIifornia filed in Book 113, pages 15 through 22 of Records of Survey in the office of the County Recorder of said county together with a portion of Block 48 of the Rancho San Bernardino per map recorded in Book 7, Page 2 of Maps in the office of said County Recorder, described as follows: BEGINNING at the easterly terminus of that certain course shown has having a bearing of North 89000'52" East, 1257.97 feet in the north line of that certain parcel shown as Area "B-4" on Record of Survey No. 97-0077 filed in Book 113, pages 15 through 22 of Records ofSlllVey in the office of the County Recorder of said COlUlty; thence along the east line of said Area "B-4", South 01009'52" East, 237.43 feet to a line that is parallel with and 798.00 feet northwesterly of the centerline of the existing runway as shown on Parcel U A" on said Record of Survey; thence along said parallel line, South 69059'55" West, 1444.93 feet to a point on a curve in the northeasterly line of Parcel "AS" shown as being concave southwesterly, having a radius of 800.00 feet, a central angle of 37006'42", and an arc length of518.18 feet on said Record of Survey, a radial line to said point bears North 41024'10" East; thence along the boundary line of said Parcel "A5" the following courses: (1) Northwesterly 139.34 feet along said curve through acenlral angle of 09058'47"; (2) thence North 58034'37" West, 46.98 feet; (3) thence North 66015'21" West, 94.25 feet; (4) thence North 81029'50" West, 100.95 feet; (5) thence South 00035'31" East, 282.04 feet to said parallel line; thence along said parallel line, South 69059'55" West, 908.13 feetlo the centerline of Tippecanoe Avenue as shown on said Record of Survey; thence along said centerline, North 00027' I I" West, 656.05 feet to the centerline of Mill Street (vacated) as shown on said Record of Survey; thence contmuing along ~e cel)tedine of said Tippecanoe Avenue. North 00025'00" West, 41.25 feet to a line that ilipatal]~l With iI!14 41,25 feet I!orth oftlle centiirliJ)p of~aid Mill Street; th~cb along said parallel line, North 1903'9'04" East, 1296.46 feet to W~5t line ofs~d Area '~'B-4"; rage I nf2 ,'; Property acquired from IVDA Page 7 of 11 thence along said west line, North 00"56'06" West, 437.52 feet to the northwest comer of said Area "B-4"; thence along the north line of said Area "B-4", North 89"00'52" East, 1257.97 feet to the POn~T OF BEGINNING. The above-described parcel of land contains approximately 25.74 acres The bearings and distances used in the above description are on the California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 to obtain ground level distances. This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. DA VID EVANS AND ASSOCIATES, INC. Page 2 of2 Property acquired from IVDA Page 8 of 11 EXHIBIT "A" Legal Description IVDAlSBIAA Land Transfer Parcel 6 That portion of Block 48 of the RBncho San Bernardino in the City of San Bernardino, County of San Bernardino, State ofCalifomiaper map recorded in Book 7, Page 2 of Maps in the office of the County Recorder of said county, described as follows: BEGINNING at the northerly terminus of that certain course shown has having a bearing of North 01009'52" West and a Jengthof 1764.40 feet in the westerly line of that certain parcel identified as Area "B.3" on Record of Survey No. 97-0077 filed in Book 113, pages 15 through 22 of Records of Survey in the office of the County Recorder of said county; thence along the boundary of said Area "B_3" the following courses: (I) North 88050'08" East, 80.00 feet; (2) thence North 43055'23" East, 42.02 feet; thence continuing along said boundary and its easterly prolongation, North 89000'37" East, 178.63 feet; thence South 00056'41" East, 996.05 reelto a line that is parallel with and 70.00 reet northerly of that certain course shown has having a bearing of North 89003' 19" East, and a length of 902.72 reet in the boundary line of Parcel "IWL" on said Record of Survey No. 97-0077; thence along said parallel line, South 89003'19" West, 52.69 reet to the northerly prolongation of that certain course shown as having a bearing of North 00056'41" West, and a length of 473.56 reet in the boundary line of Parcel "IWL" on said Record of Survey No. 97-0077; thence along said last mentioned certain course and its southerly prolongation, South 00056' 41" East, 957.27 feet to a line that is parallel with and 798.00 feet northwesterly of the centerline of the existing runway as shown on Parcel "A" on said Record of Survey 97-0077; thence along said parallel line, South 69059'55" West, 241.12 reet to the southerly prolongation or said westerly line of Area "B-3"; thence along said westerly line and its southerly prolongation, North 01009'52" West, 2001.83 feet to the P~:lINT OF BEGINNING. The above-describeq parcel oflaod contains approximately 11.75 acres Page lof2 Property acquired from IVDA Page 9 of 11 The bearings and distances used in the above description are on the California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 to obtain ground level distances. This real property description has been prepared by me, or Wlder my direction, in conformance with the ProCessional Land Surveyors Act. DA VID EVANS AND ASSOCIATES, INC. Page 2of2 Property acquired from lVDA Page 10 of 11 EXIllBlT "A" Legal Description IVDAlSBIAA Land Transfer Parcel 9 That portion of Block 48 of the Rancho San Bernardino in the City of San Bernardino, CDlmty of San Bernardino, State ofCalifomia per map recorded in Book 7, Page 2 of Maps in the office of the County Recorder of said county, described as follows: COMMENCING at the northerly terminus of that certain course shown has having a bearing of North 01009'52" West and a length of 1764.40 feet in the westerly line of that certain parcel identified as Area "B-3"-oo Record ofSUlVey No. 97-0017 filed in Book 113, pages 15 through 22 of Records of Survey in the office of the County Recorder of said county; thence along the boundary of said Area "B-3" the following courses: (I) North 88050'08" East, 80.00 feet; (2) thence North 43'55'23" East, 42.02 feet; thence continuing along said boundary and its easterly prolongation, North 89000'37" East, 118,63 feet; thence course "A", South 00056'41" East, 261.50 feet to the TRUE POINT OF BEGINNING; thence North 89'03 '19" East, 258.36 feet; thence South 00'58'49" East, 273,63 feet; thence North 89003 '19" East, 30.00 feet; thence South 00058'49" East, 260.92 feet; thence North 89003 '19" East, 361.09 feet; thence South 00'56'41" East, 200.00 feet to a line that is parallel with and 70.00 feet northerly of that certain course shown has having a bearing of North 89'03'19" East, and a length of 902.72 feel in the boundary line of Parcel "IWL" on said Record of Survey No, 97-0017; thence along said parallel line, South 89'03'19" West, 649,78 feet to the southerly prolongation of said course uA"; . . thence northerly along said cQurse "A" ,and its sOlltherly prolongation, North 00056'41" West, 734.55 feet to the TRUE POINT OF l3EGINNING; Pagelof2 Property acquired from IVDA Page 11 of 11 The above-described parcel ofland contains approximately 6.34 acres The bearings and distances used in the above description are on the California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 to obtain ground level distances. lbis real property description has been prepared by me, or Wlder my direction, in conformance with the Professional Land Surveyors Act. DAVID EY ANS AND ASSOCIA YES, INC. Page 2 of2 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mltlB.tmp 11 . ~ ~ ~ g it t . '"j - U?] I~ih " ~8~.~ I_ !i II !l , '3,] r If , ''IF 18. ~ . i! ~ .! , . ~JlI!i "C2! I i iHi"H 8 I ~~j !~"'il ~ 'I . -. .n' II ., hh H:] . ~,lli ~I .' . o ' lB, ~! I! ~ILll W r~ II'.! . ,~ ) I iin 3 , . ., pi) ."l I w. ~". ~ I 5. I 0 ) "I' · i ~ 'i' !~~i . !" I. " 0 , In !'!~. . · l~o~, J J " i ~ ! i3 ~ Ill. " , " , !ps. ~5 j ~. F ~" .oi~ I~~ l III ! ~'i d5 I ! I "~ ']h '8 . .~ i " · .lIH- .~ w "l~ - .. . ~s ~~ h j BlH,d h . i~~i~5_!!A~ 0 ::2:gj. <( 0 ~ a::: "": ~ ~ (9O~ F <( Z ~ ~tl - f- ~ -'- o S:2 ~~ tii~ 1-~5~~C5 r- U - 1-1- Z C/) g5 "'z W - -~ ClW o II'! ~~ ::Et- ffi~ wfS (/)z. "-", (/)!:M ~ ~~ W"" 0 Cl C/) ~ z (/) C/) 0 :5 (/) UJ ~ <( C/) ~ C/) - <( . 0 i' ! ~ J !! . .. ~ .G_, l!! '2 .. -E ~ ~ ~ ~ I I... I " ' " I ?: j :~ l . , '. I o , ; ! II ~ ~ i i i ~ ~ < ,I I ' i ~} 01 i : Iii 115 i;''!l_ ~ ;I) ....z"&:,, ._ II J } ~~ i '1iUo .. ~ ~~ 0 !~8 ~ o ~ I I I ~~ ~.il U~ !<I! I ~ ~~ Ii o ~~ !Iu ~ r I~~ ~ ~ ~ . i o ~ III Q \ \ \ o. ~o 3 ~ i!' if ., , 00 . ~ ~ <> ~ ~.. 'I I I ! ! ; '" i ! ~ ~I ~ o .': I" ~ 10 ~ '!.n iHl! ~ ~ " "~, u co", UOOai - " m', c , o [CU" o i ~~ 3f1IG\V~1l . . "rn, v v , c. C( ai v > i 0 . ~ i ,----.., (f) e- o w . a ~ - . . ~ Ct: ~ ~ ~ . <( , , , ~ :2 . . . . , , , ~ 0 (f) . . . , , n~ " . 0 0". . ~ Ct: - ! ! ! ~ OJ . . . , ceO l ~ ~ ~ ~ ~ . Ct: ; ; . . ~ ~ W ..~ . ! , e- o <( Uo . . ~ e- n~ I ~ ~ (f) . . . ~ ~ "!!E$ " i II ~ ~G I e WOl'lV'""d ...,. .... _:M"II' .. l I: EXHIBIT "B" EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shaH be solely responsible for aH costs incurred in fulfiHing its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shaH be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shaH provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. III III C:\Documents and Settings\carlyle\Local Settings\Ternp\mlt2B.tmp 12 1- EXHIBIT 8 MATICH PROPERTIES, LLC. PLEASE COMPLETE THIS INFORMATION Recorded In Official Records, Counly of San Bernardino 8/04/2006 LARRY WALKER 2:54 PM Auditor/Controller - Recorder BGJ P Counter Doc#: 2006 - 0533842 Tilles: 1 Peges: 18 I III/II "1111111 11111 "" ,~ Fees 0.00 Taxes 0.00 Other 0.00 PAID S9.00 RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 AND WHEN RECORDED MAIL TO: Mr. James F. Penman,EsQ. Office of the City Atty. City Hall, Sixth Floor 300 North "D" Street San Bernardino, CA 92418 NO FEE - EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103 SPACE ABOVE FOR RECORDER'S USE ONLY AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT Title of Document MATICH PROPERTIES, LLC. THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) (Rev.6/00:ha) (Word/S:lDoc Exam/Cover Sheet) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (San Bernardino International Trade Center Specific Plan and Adjacent Areas to the former Norton Air Force Base) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (the "Maintenance Agreement") is dated as of J lJ~j" 2006, and evidences the agreement of Matich Properties, LLC, a California limited liability company (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No.1 022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city ofthe State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Pro pert v Owner. (a) This Maintenance Agreement is entered into between the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seQ., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereofthat are the subject of this Maintenance Agreement which are intended to be maintained by C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 1 the Property Owner (the "Property Owner Maintenance Areas"). All other areas of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be maintained by the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (b) The Property Owner shall grant to the City a landscape easement in accordance with Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance Areas that is owned by the Property Owner. A property owner is eligible to enter into this Maintenance Agreement only ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this Agreement. (c) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the minimum landscape maintenance standards as set forth in Exhibit "c" as attached hereto, the AD No. 1022 shall be considered to be a "default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas but solely with respect to landscape purposes as set forth in Part II ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Agreement by the City, the City shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance Areas to be treated the same as any other property within the AD No. 1022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment determined pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as determined pursuant to the formula contained in the Engineer's Report to be paid with respect to the Property of the Property Owner representing the costs incurred by the City for the default ofthe Property Owner as to the Property Owner Maintenance Areas. Such assessment amount as may then be collected by the City shall be in an amount to payor reimburse the City for all costs incurred by the City resulting from the default by the Property Owner including the costs of the annual maintenance of the landscaping and administration and collection of assessments related to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions of the Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No. 1022 shall only include within the Property Owner Maintenance Areas the purposes set forth in Section 2(b) below so long as this Maintenance Agreement is in full C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 2 force and effect and for the further purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4. The Property Owner will be required to pay on the annual property tax bill all other costs of the AD No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights and traffic signals, inspection oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part ill of the formula contained in the Engineer's Report. (b) Within the Property Owner Maintenance Areas and so long as this Maintenance Agreement remains in full force and effect, the Landscape District and the special assessments as may hereafter be collected by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any common area planting of landscaping within the AD No.1 022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part I ofthe Engineer's Report and the formation documents and the Engineer's Report for the AD No. 1022. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by the owner ofthe Property in the Part I common areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection ofthe assessments as set forth in Part ill of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default (subject to prudent seasonal planting practices), the City Engineer shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 3 maintenance or the furnishing of services described in Section 1 (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of AD No.1 022 to be a "default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance, and seek collection ofthe annual landscape maintenance amount against the Property in the same manner as with other properties within the AD No. 1022 and the calculation ofthe amounts owed annually pursuant to Part I, Part II and Part ill of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subject to the portion of the AD No. 1022 considered to be the Street Lighting District Component for which the special assessments as may hereafter be collected by the City in each fiscal year may provide for the following services: (i) furnishing of electric current to any public lighting facilities by the City within the AD No.1 022 areas approved by the City and installed within the AD No.1 022 and the maintenance, repair and replacement of all electrical components, light standards, switches, light bulbs, signal lights, wiring and other appurtenant facilities; (ii) incidental costs associated with subparagraph (i), above, including the cost of(1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 4 this Maintenance Agreement shall be proper ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Matich Properties, LLC 1596 Harry Sheppard Boulevard San Bernardino, California 92408 Attn: Stephen A. Matich Facsimile: (909)382-0169 With copies to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, California 92501 Attn: Bruce D. Varner, Esq. Facsimile: (951 )274-7770 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under either Section 2 or Section 4, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 5 Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to the Engineering Report. Section 9. On request from time to time ofthe Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 ofthe Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 11. Entire Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3, regarding termination. Section 12. Attornevs' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes of this Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 6 Section 14. Indemnification and Hold Hannless. Property Owner shall protect, defend, indemnify and hold hannless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims, arising out of or in any way connected with the acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision ofthis Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.trnp 7 Section 21. Comorate Authority. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. Section 22. Covenant Running with the Land. The provisions of this Maintenance Agreement shall run with the Property and any portion thereof or interest therein, and shall be binding upon and inure to the benefit of all persons having or acquiring any interest in the Property or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement to be recorded with the Office ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. III III [Signatures Follow On Next Page] C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 8 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino BY:_~~ ~onis, Mayor Property Owner: Matich Properties, LLC, a California limited liability company SEAL ATTEST: ~~k~;y~ By: Stephen A. Matich, Member Approved as to Form: C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 9 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT STATE OF CALIFORNIA ) COUNTYO~ 6u--/?ari!;/lo ) #0 #rj7 hML before me. 5/J~(//lJtPr/~t- 6[bf/~-/J}f:f NAME, TITLE OF OFFICER - E.G" "JANE DOE, NOTARY PUBLIC" On 1 ;6J/Cf, DATE personally appeared. ? c:vIn ~ j" Morro personally known to me (or 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 instrumentthe person(s). orthe entity upon behalf of which the person(s) acted. executed the instrument. WITNESS my hand and official seal. l------~-i . _ .MEIE . C(,,""... ..1662963 l ~ NDllIIY NIIIl . CalIIomIa s J Ian == eo.nv ~ ,. _ _,~... ac:~ ., ~';~ft)~lIj)j-~' NOTARY PUBLIC SIGNATURE . OPTIONAL INFORMATION It /l~i:4f1 'hl -I/-Irt?/" OP/7 W T1TLEORTYPEOFDOCUMENT ~hd::r i Y il7a-h/JA rrP/-, Ue. DATE OF DOCUMENT 7Q7/0b . NUMBEROFPAGES IS- SIGNER(S) OTHER THAN NAMED ABOVE AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT TillS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. City of San Bernardino Property Owner: By: Patrick 1. Morris, Mayor Matich Properties, LLC, a California limited liability company SEAL ATTEST: By: Rachel Clark, City Clerk Approved as to Form: James F. Penman, City Attorney C:\Documents and Seltings\carlylelLocal Seltings\Temp\mIt2B.tmp 9 STATE OF CALIFORNIA ) ss. COUNTY OF SAN BERNARDINO ) On July 28, 2006, before me, ~ \ ~ C\ GJe YVlti. \ ' a Notary Public, personally appeared Stephen A. Matic , personally known to me, proved to me on the basIs of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. - - - -I J.- - - - ::=~~3361 J t NoIalY PuIlIC . (;aIIomIa ~ - - - ~~::~~~ Place Notary Seal Above WITNESS my hand and official seal. ~~4 ~M'lA2 , Signature of Notary Pubhc EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 10 EXHIBIT "A" LEGAL DESCRIPTION OF TIlE PROPERTY IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING THOSE PORTIONS OF BLOCK 49 OF THE RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7, PAGE 2, RECORDS OF SAID COUNTY, TOGETHER WITH PORTIONS OF VACATED STREETS AND ALLEYS LYING WITHIN AND ADJACENT TO SAID BLOCK AND LOTS, DESCRIBED AS FOLLOWS: PARCEL 1 OF PARCEL MAP 15986 AS RECORDED IN BOOK 198, PAGES 34 AND 35, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 2.28 GROSS ACRES, MORE OR LESS. EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mltlB.tmp 11 :; ~ UtP I ~, IHh' " . fS~lli lit .1 t!'.l - ! . ]Iil!.lh ~ ] , Jpf'H J I ti 5iii 'i l << , l ..' !.~, i ". l~~i 11H ~I . ~IH Ii . Z, !d~.! Ii II ~~..Il -i J J 10' I . j JH} h j ~. !: i I~ ! ~ u ~I~ i"i' ] ~ ~.II ~ J I u ~ - c 1I 1I . III "II" ~ ~ · li.~. J J .I i ! " ffi] i'., h >i. li; !ijSi, ., ih i ~i' '. <<, (lB tit; Ii' ~B l ~ " (lu I ~ I ~~ I ~~ i~1 P'.! ~S "! "J' IS o~ ..1 "HI, h ~5 ~! s~a:~ol~ h ~ ~of:lu,l!I!JI ~5 , uu ~gj. <( 0 ~ c:: "": ~ CJ ,,0 ~ ~ <( z ~ ~I- -~ l!5 ::::i~ O~ i~ tu~ .....a: 8~ ~i5 zlii g~~!Z w 0 I~ ~~ ~I-z ffi~ wt3 (j) G:l Q.. (I) U) ~ ~ ~~ WenO 0 ~ z U)eno ~ U)w~ <(enz en - <C ..__...__..........................._...-.-------~ . @. 111~ I e II ~~ ~ ........ .......... @ @ ___..1 G> ~-_._-_.................__...---.----- ~@ e . . N " , u" , 00:: ai ~ . i . " e .... - -- ~ ~ IS III EXHIBIT "B" ( \ \ \ :.:: ) u" ~Ct:aj z . @ . . . N l ",1Il' u"' otr:a:i ~ . . 8 1!!!IE13 . ~ _ E Q 8 I I! , ~L W ~ '-1'.1 I lI: 1! ii 1 ! I~I'I' I Hill! . . N '" U "' OO:ai ~ z . 'g h ~ ~l ~ .!~ ~ ~!.,lo g ~~~ jJ8 ~ i ~ I I i ~; ~iU i~~ II~I ~ ~~ I . j) ~~ I'II l!s r I~. ~ ~ . i 0:0 o ~8 :g ~ <!' i1 . , ; 0 ~ 8 . . I i ! ~ i ,~ !d' Ii!! o i ~~ I ~ i () ~ -.J < -.J - ." ; (f) @ w n ~ i ~ , I I .... 0::: i n ~ ; W CL U i ! ~ 0 H i ~ 0::: US ! ' CL UHq I () ~ <l: U!ii~ 2 '-' I I 118 ~ ~ z r EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit "B" which areas are adjacent to the Property of the Property Owner as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within City assessment districts on file in the office of the City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season ofthe year. 11/ 11/ C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 12