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HomeMy WebLinkAbout20-Development Services ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Resolution authorizing and directing the execution of a Funding and Mitigation Agreement- Dept: Development Services Verdemont Fire Station, relative to an industrial development on the westerly side of Shenandoah Date: January 3, 2007 Way, southerly of Hallmark Parkway. (McShane Shenandoah Industrial) File No.14.40-132 MCC Date: 01/08/07 Synopsis of Previous Council Action: 04/19/04—Resolution No. 2004-107 was adopted approving from of Mitigation Agreement in the Verdemont Fire Station Service Area. 06/21/04 —Resolution No. 2004-210 was adopted establishing the formation of CFD 1033 (Verdemont Fire Station) Recommended Motion: Adopt Resolution Valerie C. Ross Contact person: LASZLO "Les" FOGASSY Phone: 5026 Supporting data attached: Staff Report, Map, Reso. Ward: 5 Agreement FUNDING REQUIREMENTS: Amount: None Source: (Acct. No.) (Acct. Description) Finance: Council Notes: X?c,-) -�00 ,7 1 Agenda Item No. t �� p� CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution authorizing and directing the execution of a Funding and Mitigation Agreement- Verdemont Fire Station, relative to an industrial development on the westerly side of Shenandoah Way, southerly of Hallmark Parkway(McShane Shenandoah Industrial). BACKGROUND: On April 19, 2004, Resolution No. 2004-107 was adopted, approving form of Mitigation Agreement in the Verdemont Fire Station Service Area and on June 21, 2004, Resolution 2004- 210 was adopted, establishing Community Facilities District, known as CFD 1033. This was in anticipation of funding a portion of the ongoing operation and maintenance costs for the fire station as a CEQA (California Environmental Quality Act) impact mitigation. Initially, the district boundary included two tracts on the northeast and northwest corners of Palm Avenue and Irvington Avenue, and a 90 acre parcel of land, formerly known as the "Bice" property, located northwest of Little League Drive and the I-215 Freeway, which is currently owned by the Redevelopment Agency. In 2005, the Verdemont Fire Station, located on Palm Avenue, north of Kendall Drive, was completed. It was also determined that as development occurs in the Verdemont area, and more specifically in the Verdemont Fire Station Service Area, developers/property owners would be required to pay a fair share cost of the operation and maintenance costs of the fire station. The developer/property owner may pay all of the fees at once at the time of development, referred to as the "In-Lieu Fee", or may elect to annex into the CFD and have the costs spread over the life of the CFD, which is for 30 years. The fair share costs were established as follows: In-Lieu Fee OR Annual assessment if paid through the CFD • Residential $6,349.88 per lot $350.00 per lot • Commercial, Industrial, other $44,358.47 per acre $2,445 per acre The above fees are subject to an annual increase of 2%beginning July 1, 2005. McShane Shenandoah Industrial currently has a development in process that is subject to fire station fees as set forth in conditions of approval for Development Permit Type II No. 05-35. The project is located on the westerly side of Shenandoah Way, southerly of Hallmark Parkway and consists of a 254,500 square foot warehouse/distribution facility on 13.4 acres. Based on the fair share costs listed above, the developer may pay a one time In-Lieu Fee of$618,417.38, or annex into the CFD, with an initial annual assessment of $34,086.63. The developer/owner opted to annex this property for this development into the CFD, instead of paying In-Lieu Fees, and annexation proceedings into the CFD for this project will be submitted in the near future. The attached resolution authorizes and directs the execution of a Funding and Mitigation Agreement for the development, whereas the developer agrees to pay the In-Lieu Fee or annex into the CFD. The agreement will be recorded with the County Recorder's office upon execution by all parties. Since a building permit has already been issued for this project, assessments will commence with the 2007/2008 assessment rolls. This is a single parcel development and approval of the annexation into the CFD will be 100% of the ownership. The developer has indicated that they are proposing to apply for a Certificate of Occupancy by the end of January, 2007. The Certificate of Occupancy will not be issued until the annexation process is completed. This is anticipated sometime in March, 2007. FINANCIAL IMPACT: Initial annual assessment of$34,086.63, with annual increase of 2% each year. All fees collected are to be used for funding a portion of the operation and maintenance costs of the Verdemont Fire Station. RECOMMENDATION: Adopt resolution. 0 m y e' Oy P aelm p„ I Ipp q✓P CAL-STATE UNIVERSITY 18 No Scale ,r NOnhPark 9lvd. S 3 c Location of f¢ca kP�do// Development Subject to 40th St. 330 Impact Mitigation Fee (McShane Shenandoah Industrial 0 o- o o Marshall Blvd. Of 259 3 > Highland Ave. 21g St 0 Cn ° Base Line St. 9th St C rf 5th St. Rialto Ave. � 15 Mill St. o C 0 U N ar d Orange Show Rd. . 0 VICINITY MAP CITY OF SAN BERNARDINO VERDEMONT FIRE STATION IMPACT DEVELOPMENT SERVICES DEPARTMENT MITIGATION FEE / FUNDING AND REAL PROPERTY SECTION MITIGATION AGREEMENT ® indicates un—incorporated areas within City's Sphere of Influence Created by: t =° Date: 1112 1 1� C(DPY 1 RESOLUTION NO. 2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND 3 DIRECTING THE EXECUTION OF FUNDING AND MITIGATION AGREEMENT WITH MCSHANE SHENANDOAH INDUSTRIAL, LLC, FOR THAT CERTAIN REAL 4 PROPERTY GENERALLY LOCATED ON THE WESTERLY SIDE OF 5 SHENANDOAH WAY, SOUTHERLY OF HALLMARK PARKWAY, RELATIVE TO THE VERDEMONT FIRE STATION IMPACT MITIGATION FEES. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. That the Mayor of the City of San Bernardino is hereby authorized and 9 directed to execute on behalf of said City a Funding and Mitigation Agreement with McShane 10 11 Shenandoah Industrial, LLC, for that certain real property generally located on the westerly side 12 of Shenandoah Parkway, southerly of Hallmark Parkway, attached hereto as Exhibit "I" and made 13 a part hereof, relative to the Verdemont Fire Station Impact Mitigation Fees. 14 SECTION 2. This resolution is rescinded if the parties to the contract fail to execute it 15 within sixty(60) days of the passage of the resolution. 16 17 18 19 20 21 22 23 24 25 26 I 27 28 11 i21/2006 ] I 1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF FUNDING AND MITIGATION AGREEMENT WITH MCSHANE SHENANDOAH 2 INDUSTRIAL,LLC,FOR THAT CERTAIN REAL PROPERTY GENERALLY LOCATED ON THE WESTERLY SIDE OF SHENANDOAH WAY,SOUTHERLY OF HALLMARK PARKWAY, 3 RELATIVE TO THE VERDEMONT FIRE STATION IMPACT MITIGATION FEES. 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 6 Common Council of the City of San Bernardino at a meeting thereof 7 held on the day of 520. ,by the following vote,to-wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 BRINKER 12 13 DERRY 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 City Clerk 19 The foregoing resolution is hereby approved this day of , 20 20 21 22 PATRICK J. MORRIS, Mayor City of San Bernardino 23 Approved as to form: 24 25 7ES F. PENMAN, City Attorney 26 27 28 11/21/06 2 Recording requested by ) and when recorded mail to: ) City of San Bernardino ) 300 North "D" Street, 3rd Floor ) San Bernardino, CA 92418 ) Attn: Laszlo "Les"Fogassy ) Exempt: Government Code § 6103 Space above this line for Recorder's use only FUNDING AND MITIGATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND McSHANE SHENANDOAH INDUSTRIAL, LLC, RELATIVE TO MITIGATION OF FIRE STATION SERVICE IMPACTS ( DEVELOPMENT PERMIT TYPE II No. 05-35). THIS FUNDING AND MITIGATION AGREEMENT ("Agreement") dated as of , 20 is entered into by and between the City of San Bernardino, a charter city and a public body, corporate and politic (the "City"), and McShane Shenandoah Industrial LLC, a Delaware Limited Liability Company, (the"Landowner"). WITNESSETH: WHEREAS, the Landowner is the owner of the property described in Exhibit "A" and depicted in Exhibit `B" hereto (the "Property") which the Landowner proposes to develop a 254,500 square foot warehouse/distribution facility on 13.4 acres located at the terminus of Shenandoah Way approximately 1,000 feet west of Hallmark Parkway, APN 0266-362-01, Development Permit Type II No. 05-35 (the"Proposed Development"); and WHEREAS, currently there are areas within the City which are not provided with adequate fire and safety protection and in light of the recent fires which ravaged the City, and new development within the Verdemont area of the City, because of inadequate fire protection, will cause substantial environmental impacts; and WHEREAS, it is in the best interest of the City to provide additional fire and safety protection prior to any new development in the Verdemont area, as well as provide for a guaranteed means to pay for such ongoing protection and assure the availability of Fire Station Services (as hereinafter defined) of the City; and WHEREAS, prior to the approval of any subdivision map, development permit, or other construction in the Verdemont area, the City may require such future development within the EXHIBIT"I" F\Empeno\Planning\M itigationAgmtMcShane 1 City to mitigate such substantial environmental impacts pursuant to the California Environmental Quality Act ("CEQA"), Public Resources Code Section 21000, et. seq., and Government Code Section 66474(e); and WHEREAS, the Landowner is seeking approval of the Proposed Development by the City; and WHEREAS, the City, subject to receipt of funds pursuant to this Agreement, intends to provide payment for a portion of the operations and maintenance of fire protection and suppression services ("Fire Station Services") as authorized pursuant to Section 53313 of the Mello-Roos Community Facilities District Act of 1982, as amended (the "Act") for the Proposed Development and has formed a community facilities district ("CFD No. 1033"), and is amenable to annexing the Property, pursuant to the Act, in CFD No. 1033 "Annexation" proceedings, to pay for such Fire Station Services to serve the Proposed Development; and WHEREAS, the City and the Landowner intend that partial funding for Fire Station Services required to serve the development within the Property shall be provided on a timely basis by means of payment through CFD No. 1033 or by payment of the In-Lieu Fee (as hereinafter defined) as provided in this Agreement. NOW, THEREFORE, in consideration of the terms and conditions herein set forth, the City and the Landowner DO HEREBY AGREE AS FOLLOWS: 1. Definitions. As used in this Agreement, all capitalized terms shall have the meanings set forth in Section A of Exhibit "C" or the following meanings, whichever is applicable: "Annexation" means the annexation of the Property to CFD No. 1033 as provided under Section 53339 of the Act. "CFD No. 1033" means the community facilities district formed by the City pursuant to the Act and known by that name. "City"means the City of San Bernardino, California. "Completion of Annexation to CFD No. 1033" shall be deemed to have occurred upon the occurrence of all of the following: (i) the annexation of the Property to CFD No. 1033, including the authorization for the levy by CFD No. 1033 of the Special Taxes; (ii) the approval by the qualified electors of CFD No. 1033 of the levy of the Special Taxes; (iii) the expiration of the statute of limitations provided in Section 53359 of the Act, and (iv) the effective date of the first applicable validating legislation by the State of California. "In-Lieu Fee" means a payment to be made as provided under Section 2.1 prior to the issuance of each certificate of occupancy for residential development in the amount of $6,349.88 per dwelling unit per year, whether for a single family or a multi-family unit, EXHIBIT"1" F\Empeno\Planning\MitigationAgmtMcShane 2 and prior to the issuance of each certificate of occupancy for commercial/retail/office/industrial zoning classifications in the amount of$44,358.47 per acre of development as set forth on a site plan of development, which amounts shall increase by an amount not to exceed 2% per Fiscal Year of the amount in effect for the previous Fiscal Year, commencing July 1, 2005 up to the Fiscal Year commencing July 1, 2033. "Project" means any project undertaken for the purpose of development involving the approval or issuance of any permit or entitlement for use by any governmental agency and includes all such permits and entitlements for use whether classified as quasi- legislative, quasi-judicial or ministerial in nature, including, but not limited to, the adoption, amendment, approval or issuance of any general plan, specific plan, master plan, zoning ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final parcel map, variance, conditional use permit, site plan, plot plan, development plan, annexation,public utility connection,building permit and certificate of occupancy. "Fire Station Services" means the operations and maintenance of fire suppression and protection facilities, to serve needs created by development within the boundaries of CFD No. 1033. "Special Tax" or "Special Taxes" means the " Special Tax" as defined in Exhibit "C" including any whole or partial prepayment thereof as provided in Section F of Exhibit «C„ "State"means the State of California. 2. Mitigation of Fire Station Services. 2.1 Payment of In-Lieu Fee/Annexation to the Mello-Roos District. In consideration for the City providing Fire Station Services to serve the Property, the Landowner shall, prior to the issuance of a certificate of occupancy, pay to the City the In-Lieu Fee in accordance with the applicable land use zone designation, or, in the alternative, the Landowner agrees to execute this Agreement and all other documents requested by the City relative to annexation of the Property to CFD No. 1033 and Special Taxes of CFD No. 1033 as described in Exhibit "C", in which event City agrees to annex the Property to CFD No. 1033 at the earliest practicable date. The annexation of the Property to CFD No. 1033 shall be on the basis of the parameters set forth in Exhibit "C"with respect to the Rate and Method of Apportionment of the therein described Special Taxes. The Landowner, and its successors and assigns, shall be deemed to have fulfilled and mitigated their entire obligation to assist in financing Fire Station Services to serve the development of the Property, so long as the provisions of this Agreement are complied with by the Landowner, upon the occurrence of the Annexation of the Property to CFD No. 1033 or the payment of the In-Lieu Fee, if such In-Lieu Fee is paid pursuant to the terms of this Agreement. The Landowner hereby acknowledges that there are certain costs associated with the Annexation of the Property into CFD No. 1033. In this regard the Landowner and the City agree EXHIBIT 11111 F\Empeno\Planning\MitigationAgmtMcShane 3 that any costs relative to such Annexation proceedings shall be borne by the Landowner. The City agrees that it will periodically annex property into CFD No. 1033, in accordance with and pursuant to the provisions of the Act, in order to fairly distribute the costs of annexation across the property or properties participating in such Annexation. The City agrees to undertake reasonable efforts to contact other developers and notify such other developers of the opportunity to annex the property of such other developers into CFD No. 1033. The City however gives no representation or warranty whatsoever to the Landowner that any other parcels of property will.be prepared to annex into CFD No. 1033 at the time of such notification. The parties agree that if the Landowner and one or more other developers participate in an Annexation to CFD No. 1033, the costs of Annexation shall be distributed between or among the Landowner and the other developers on a pro rata basis by acreage of property or properties included in such Annexation proceedings. Landowner specifically acknowledges that the cost to the City relative to such Annexation shall include, but shall not necessarily be limited to, costs of preparation of relevant documentation, recording fees, if any, reasonable engineering and attorneys fees, and similar and related costs. 2.2 Landowner Consent and Waivers: Landowner hereby requests that the Property be included, at the earliest possible date, in CFD No. 1033. Landowner hereby consents to the inclusion of the Property in CFD No. 1033 and to the levy and collection of the Special Tax for CFD No. 1033 and hereby waives any and all rights to challenge the Formation of, or Annexation to, CFD No. 1033, the proceedings to include the Property, the levy and collection of the Special Tax for CFD No. 1033 and any and all other proceedings related thereto. Landowner represents that it is the person legally entitled and authorized to cast the ballots attributable to the Property in the landowner, mailed-ballot election to be conducted within CFD No. 1033 to determine, among other things, whether certain land, including the Property, shall be included in CFD No. 1033 and shall be subject to the Special Tax. . Landowner consents to the assessment of the Special Tax on the Property in the amount of $350.00 per parcel for Residential property per year and $2,445 per parcel for Commercial, Retail, Office or Industrial property per year (2004 Special Tax amounts, subject to adjustment in accordance with Section C.1 of the Rate and Method of Apportionment attached hereto as Exhibit "C") and waives the requirements for notice and hearing on the imposition of said Special Tax, and waives any and all minimum time periods relative to the election pursuant to Government Code Section 53326(a). Further, the Landowner hereby waives the following: a) the preparation and distribution of an impartial analysis of the ballot measure, as well as arguments in favor and against, under the authority of Government Code Section 53327(b); b) the requirements regarding the time to mail ballots to the qualified electors under Elections Code Section 4101, and agrees that the Landowner or EXHIBIT 111" F\Empeno\Planning\M itigationAgmtMcShane 4 Landowner's designated representative may accept either mailed service or personal service of the ballots; C) the requirements regarding identification envelopes for the return of mailed ballots contained in Government Code Section 53327.5; d) any and all defects in notice or procedure in the conduct of the election, whether known or unknown (except the right to vote and to have the ballots fairly counted), and Landowner hereby further states that the election is being expedited, pursuant to this waiver and consent, at the particular instance and request of the Landowner. 2.3 Other Properties. In order to equalize treatment of landowners seeking to develop within the City boundaries, the City agrees to use its best efforts to enter into agreements comparable to this Agreement with the owners of other properties within the City in order to obtain financial commitments for Fire Station Services from them at least equal to that committed to by the Landowner hereby; provided, however, if, notwithstanding the use of such best efforts, the City is unable to enter into such agreements, such inability shall not constitute a breach of this Agreement. 2.4 Landowner's Covenant. The Landowner hereby covenants to the City that the Landowner shall provide, or by contract with any developer or merchant builder of any part of the Property require to be provided, the "Notice of Special Tax" required by Section 53341.5 of the Act or any similar successor statute. The Landowner expressly acknowledges that the City and CFD No. 1033 shall have no duty or obligation and shall incur no liability, jointly or severally, with respect to the foregoing covenant of the Landowner. 2.5 Indemnification Regarding Disclosure. The Landowner shall assume the defense of, indemnify and hold harmless the City and CFD No. 1033 and each of their officers, employees and agents from and against any and all actions, damages, claims, losses, expenses or liability arising from, or related to, Landowner's covenant and obligation to disclose the Special Tax to property owners as provided in Section 53341.5 of the Act, or as amended in the future to the extent such information is furnished by the Landowner. 3. Binding on Community Facilities District. Upon Annexation to CFD No. 1033, CFD No. 1033 shall automatically become a party to this Agreement, and all provisions hereof which apply to the City shall also apply to CFD No. 1033. The Mayor and the Common Council of the City, acting as the legislative body of CFD No. 1033, shall perform all parts of this Agreement which require performance on the part of CFD No. 1033. 4. General Provisions. 4.1 All of the covenants, stipulations, promises and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind and inure to the benefit of the successors of the respective parties EXHIBIT"1" F\Empeno\Planning\M itigationAgmtMcShane 5 4.2 Assignment. (a) No Separate Transfers. No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. (b) Notice and Assumption. Prior to Annexation of the Property into CFD No. 1033 or pay>nent in full of the In-Lieu Fee, then concurrent with any such sale, transfer or assignment, or within thirty (30) days thereafter, the Landowner shall notify the City, in writing, of such sale, transfer or assignment and shall provide City with an executed agreement, in a form reasonably acceptable to the City, by the purchaser, transferee or assignee by which the purchaser, transferee or assignee expressly and unconditionally assumes all duties and obligations of the Landowner in this Agreement with respect to the Property or part thereof conveyed. (c) Consequences of Non-Compliance. Any sale, transfer or assignment not made in strict compliance with paragraph (b) of this Section 4.2 shall constitute a default by the seller, transferor or assignor under this Agreement; provided, however, such default may be cured at any time by the purchaser, transferee, or assignee executing an agreement pursuant to paragraph (b) of this Section 4.2 and no such default shall affect the rights under this Agreement of any other owner of any part of the Property. Notwithstanding the failure of any purchaser, transferee or assignee, to execute the agreement required by paragraph (b) of this Section 4.2, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. 4.3 Amendment and Waiver. This Agreement shall be amended only by a written instrument executed by the parties hereto or their respective successors and assigns. All waivers of this Agreement must be in writing and signed by the appropriate authorities of the parties hereto. 4.4 Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality or enforceability of the remaining portions hereof shall not, in any way, be affected or impaired thereby. 4.5 Integration. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this Agreement. 4.6 Notices. Demands and Communication. Formal notices, demands and communications between the City and the Landowner hereunder shall be sufficiently given if(i) personally delivered, (ii) mailed by registered or certified mail, postage prepaid, return receipt requested, or (iii) delivered by Federal Express or other reliable private express delivery service to the principal offices of the City or Landowner, as set forth below. Such written notices, demands and communications may be sent in the same manner to such other addresses as either EXHIBIT 111" F\Empeno\P1anning\M itigationAgmtW Shane 6 party may from time to time designate by mail as provided in this Section. Such notices demands or communications shall be deemed received upon delivery if personally served, or upon the expiration of three (3)business days if given by other approved means as specified above: If to the City: City Hall 300 North"D" Street San Bernardino, California 92418 Attn: Director, Development Services If to the Landowner: Sean Cummings McShane Corporation 2850 E. Camelback Road, Suite 325 Phoenix, Arizona 85016 (602) 508-6166 scummings@mcshane.com With a copies to: John Dobrott Vice President McShane Corporation 4590 MacArthur Road, Suite 500 Newport Beach, CA 92660 (619) 222-1000 jdobrott@mcshane.com Steve Wellington Senior Counsel Allen Matkins 501 West Broadway, 15"Floor San Diego, CA 92101-3541 (619) 233-1155 sellington@allenmatkins.com Dan McShane McShane Corporation 9550 W. Higgins Road, Suite 200 Rosemont, IL 60018 (847) 292-4300 4.7 Attorneys' Fees. In any litigation arising out of the breach of this Agreement by any party, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover reasonable attorneys' fees and all other reasonable costs incurred in such litigation and allowed by the court. The costs, salary and expenses of the City Attorney and members of his office, shall constitute attorneys' fees for the purposes of this Agreement. EXHIBIT 111" F\Empeno\Planning\M iti gationAgmtMcShane 7 4.8 Interpretation. The terms of this Agreement, including all Exhibits hereto, shall not be construed for or against any party by reason of the authorship of this Agreement, but shall be construed in accordance with the meaning of the language used. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 4.9 Force Majeure. The obligations of any party under this Agreement, and all deadlines by which any party's obligations hereunder must be performed, shall be excused or extended for a period of time equal to any prevention, delay or stoppage in performance which is attributable to any strike, lock-out or other labor or industrial disturbance, civil disturbance, act of a public enemy, war, riot, sabotage, blockade, embargo, lightning, earthquake, fire, storm, hurricane, tornado, flood, explosion, court injunction, moratorium on any necessary public utilities. 4.10 Recordation and Subordination. (a) Recordation. This Agreement or a notice describing the existence of this Agreement and the Property may be recorded by the Landowner or by the City. The parties hereby agree to execute such documents as may be needed to give such notice. (b) Subordination. Any existing monetary encumbrances or options in favor of non-governmental agencies or entities shall be subordinated to this Agreement prior to City certifying to the availability of the Fire Station Services for the Property. 4.11 Execution. This Agreement may be executed in several counterparts each of which shall be an original and all of which shall constitute but one and the same agreement. 4.12 Mutual Cooperation. Each party to this Agreement agrees to cooperate with the others, to act in good faith, to sign any other and further documents, and perform such other acts, as may be reasonably necessary or proper in order to accomplish the intent of this Agreement. No party shall do anything which shall have the effect of harming or injuring the right of any other party to receive the benefits of this Agreement. The parties shall refrain from doing anything which would render their performance under this Agreement impossible or impractical. 4.13. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person or entity shall have any right of action based on any provision of this Agreement. 4.14 Exhibits. All Exhibits attached hereto are incorporated into this Agreement by reference EXHIBIT"t" F\Empeno\Planning\M itigationAgmtMcShane 8 FUNDING AND MITIGATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND McSHANE SHENANDOAH INDUSTRIAL,LLC,RELATIVE TO MITIGATION OF FIRE STATION SERVICE IMPACTS (DEVELOPMENT PERMIT TYPE II No. 05-35). IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY: LANDOWNER: McSHANE SHENANDOAH INDUSTRIAL, LLC, By: PATRICK J. MORRIS, Mayor Print Name/Title: Attest: By: City Clerk Approved as to form: J F. PENMAN, City Attorney EXHIBIT "1" F\Empeno\Planning\M itigationAgmtMcShane 9 EXHIBIT A LEGAL DESCRIPTION EXHIBIT"1" F\Empeno\Planning\MitigationAgmtMcShane 10 EXHIBIT "A" LEGAL DESCRIPTION Apn: 0266-362-01 Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows: PARCEL NO. A: PARCEL 1, AS PER PLAT ATTACHED TO CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 84-1, RECORDED NOVEMBER 20, 1985, INSTRUMENT NO. 85-292624, OFFICIAL RECORDS, BEING DESCRIBED AS FOLLOWS: A PORTION OF PARCEL 1 AND A PORTION OF PARCEL 2, PARCEL MAP NO. 4437, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 43 OF PARCEL MAPS, PAGE (S) 63 TO 66, INCLUSIVE, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1; THENCE NORTH 38 DEG. 55' 44" WEST, 1042.00 FEET; THENCE NORTH 51 DEG, 04' 16" EAST, 215.00 FEET; THENCE NORTH 01 DEG. 31' 25" WEST, 85.60 FEET; THENCE NORTH 51 DEG. 04' 16" EAST, 289.58 FEET; THENCE SOUTH 38 DEG. 55' 44" EAST, 1070.00 FEET TO THE NORTHERLY LINE OF SHENANDOAH WAY (AS SAME IS NOW 80 FEET WIDE); THENCE SOUTH 51 DEG. 04' 16" WEST, 410.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.00 FEET; THENCE THROUGH A CENTRAL ANGLE OF 78 DEG. 27' 47" AND AN ARC LENGTH OF 68.47 FEET; THENCE SOUTH 51 DEG. 04' 16" WEST, 101.01 FEET TO THE POINT OF BEGINNING. EXHIBIT B MAP OF PROPERTY EXHIBIT"1" F\Empeno\Planning\M itigationAgmtMcShane 11 .raa 4 `z : ?:! •s`,3!: £�� S�rgltz � _ � of � '!i ': ;. � f •' �ip,F,r s'Li'\•. r �I —� xl F �s i'• rs.i�$� td IE �4 a_F,�,: -!1 e!'i}} s, -!>c a F` .� ; e::.. +:>:>'/: eaa•�I a. ✓ ."��. - F :IB �sL:6.1Yq ;���� �ivrL S F i �.S is!9! t�! s °_el } s' a �eF?5;3�, ° '!IFaa ! '. { �`� � °i �°S i.S FP 7 -• Mat Pee E .!! !.2Yi 4�•6 .a. Sr° i I�-�r t .� a. :"sn �:"°e- :!3Y ,!!aE ! _a ,��. y�• E ! 's..rt. '1{ - r .l;. �'� a Isf?!¢; '�i�- ;.(YF �'t¢;L;L•'a ' 6;! �!66 yslg r 1 ria� ; ° ry, � •t�fi !i ?- .Is� ai "` � ¢ sF•S!: `!s aitaC !!:." !:r-a fajF ` �� �7 iF�'S8r r[�S F a f•t. t i I.i 6� 'ijlF'sE �° � °' p }�i Q ga�'�.•, !' va..l7a r e Y �,y i! !'° - L i.:e a _: F - ; 1 � ` 0ve r!9 z q a•geS F`a7)'.-I; r f r,� 3S !E � !n _ � t 3 1 r t-tL Iw ' !r .6f S p'_!'I°, / S� 4 r!!_Y 1"•r ! :s i�F'n ! F :�. p°IZ � ' /° I- I` r? a � t ¢• �I{yp, P. °f p:F L7 p!!- t°� S- .9 ji 7�,:-�: e , : [-- to s','L`` .i � 6' O i;i E r ftlE! sfaS lja3F:l44F- ! `` .IL a :.' ; 1. i t.•r 3 'S Pl3:}-.l•a-:7 :�°',1 r c�r:.ls!; X.f� S G H1-1 i- zY! C "1 ! rp iti� �PS �1 :P� !a.r..rrib° •�a'p' r::!`'l3�; W ge F e e!`r�S Ipt It I E�If'�e $•' .$�7� t!. .! 6 M�3'fj •[ a ;.TG g ii.F��:F : r�:!. C :as!res!! a:7;. ;{ �.:F4pi afellnv s; vlalr6-sral fa0+ Ir y e S _t-M V;;X-11 6 3 +r r r I R I i I - W r, I I� IYLI F ..f i I ��•� :1 tf 91 I ��''�' ' I Im � o LD = I I�'I�,I I �! Hitt+ + t a !��Y v�i • Q::S U ¢O `!i I�:I I�_I a q sYF• = F F a r:fei Lr kTF v� tit t,g, if _ Fit! 111 !. PA I J 9.. fl' I•�� I V! 9Y if ��TY ! i :i. 3•Eeo.FS i i°.. !r at E c F!3 F !i EXHIBIT C RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX COMMUNITY FACILITIES DISTRICT NO. 1033 CITY OF SAN BERNARDINO This Rate and Method of Apportionment of this Special Tax sets forth the special tax applicable to each Assessor's Parcel within Community Facilities District No. 1033 ("CFD No. 1033") of the City of San Bernardino ("City") to be levied and collected according to the special tax liability determined by the Common Council of the City, acting as the Legislative Body of CFD No. 1033. The applicable Special Tax shall be determined pursuant to the application of the appropriate amount or rate as described below. All Taxable Property within CFD No. 1033, unless exempted by law, or the provisions of Section E, below, shall be subject to the applicable Special Tax levied and collected to the extent and in the manner herein provided. This Rate and Method of Apportionment also is provided as an explanation to allow landowners or residents within CFD No. 1033 to estimate the Special Tax to be annually levied and collected, or prepaid, as the case may be, with regard to property within CFD No. 1033. A. Definitions "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 (commencing with Section 53311) of Division 2 of Title 5 of the California Government Code. "Administrative Expense" means any costs incurred by the City on behalf of CFD No. 1033 related to the determination of the amount of the annual levy of the Special Tax, the collection of the Special Tax, and the other costs incurred in order to carry out the authorized purposes of CFD No. 1033. "Special Tax" means the special tax to be levied in each Fiscal Year pursuant to Sections C. and D. on each Assessor's Parcel for a period not to exceed 30 years including the Initial Fiscal Year. "Assessor's Parcel" means a parcel of land as designated on an official map of the San Bernardino County Assessor which has been assigned a discrete identifying parcel number. "Commercial/Retail/Office/Industrial Property" means property zoned for commercial, retail, office or industrial uses or other non-residential uses. "Common Council"means the Common Council of the City of San Bernardino. EXHIBIT"1" F\Empeno\Planning\MitigationAgmtMcShane 12 "Residential Property" means for any Fiscal year all Taxable Property for which a foundation building permit for single family or multi-family units was issued prior to May 1 preceding the Fiscal Year in which the Special Tax is being levied. "Facilities" means the Fire Station Services as may be identified in the Community Facilities District Engineer's Report prepared for CFD No. 1033 on file in*the Office of the City Clerk, or the continued operation and maintenance of the Verdemont Fire Station, including but not limited to payment of compensation of employees, including salaries and benefits, maintenance and operation of fire safety vehicles and the fire station structures, any other expenses required to keep the such equipment and improvements in fit operating condition and any incidental expenses (collectively, the "O&M Expenses") to be financed by CFD No. 1033 pursuant to the Act. "Fiscal Year"means the period starting on July lst and ending the following June 30th. "In-Lieu Fee" means a one-time fee, which fee shall be deposited into an interest bearing reserve account for future O&M Expenses in the following amounts and for which a further explanation of the In-Lieu Fee will be described in an estimated cost report: Residential Zone $6,349.88 per residential dwelling unit as an In- Lieu Fee Commercial, Retail, Office Zone $44,358.47 per acre of development as set forth on a site plan of development as an In-Lieu Fee Industrial Zone $44,358.47 per acre of development as set forth on a site plan of development as an In-Lieu Fee "Land Use Class" means any of the classes of Property listed in Table 1 and Table 2, below. "Project" means any project undertaken for the purpose of development involving the approval or issuance of any permit or entitlement for use by any governmental agency and includes all such permits and entitlements for use whether classified as quasi- legislative, quasi-judicial or ministerial in nature, including, but not limited to, the adoption, amendment, approval or issuance of any general plan, specific plan, master plan, zoning ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final parcel map, variance, conditional use permit, site plan, plot plan, development plan, annexation, public utility connection,building permit and certificate of occupancy. "Taxable Property" means all Assessor's Parcels within the boundaries of CFD No. 1033 which are not exempt from the Special Tax pursuant to the Act and the provisions of Section E. herein. EXHIBIT"1" F\Empeno\Planning\M itigationAgmtM cShane 13 B. Assignment to Land Use Classes As soon as practicable, as of May 1 for the next succeeding Fiscal Year, all Taxable Property within CFD No. 1033 shall be categorized as Residential Property or either Commercial/Retail/Office/Industrial Zone Property. Taxable Property shall be subject to a Special Tax pursuant to Sections C. and D. below. C. Special Tax 1. Residential Property The Special Tax for each Assessor's Parcel classified as Residential Property shall be the amount determined by reference to Table 1 and the paragraphs that follow Table 1. Table 1 Special Tax Rates for Residential Property (For the Initial Fiscal Year 2004-05) Special Land Use Class Land Use Description Tax Per Unit (2004-05) 1 Single Family Detached Unit $350.00 2 Multi-Family Unit/Attached Dwelling Unit $350.00 In determining the Special Tax which may be levied in any Fiscal Year, on July 1, 2005, and on each July 1 thereafter, the Special Tax shall be increased by an amount not to exceed 2 % of the amount in effect for the previous Fiscal Year, up to the Fiscal Year commencing July 1, 2033. The Special Tax shall terminate as to such Assessor's Parcel at the close of the thirtieth (30th) Fiscal Year following the beginning of the Initial Fiscal Year 2004-2005, i.e., the Special Tax shall terminate as of June 30, 2034. 2. Commercial/Retail/Office/Industrial Zone Property The Special Tax for each Assessor's Parcel classified as either Commercial, Retail, Office, or Industrial Zone Property shall be the amount determined by reference to Table 2 and the paragraphs that follow Table 2. Table 2 Special Tax Rates for Commercial/Retail/Office/Industrial Zone Property (For the Initial Fiscal Year 2004-05) Special Land Use Class Land Use Description Tax Per Acre (2004-05) 3 Commercial $2,445.00 4 Retail $2,445.00 5 Office $2,445.00 6 Industrial $2,445.00 EXHIBIT 111" F\Empeno\Planning\M itigationAgmtMcShane 14 In determining the Special Tax which may be levied in any Fiscal Year, on July 1, 2005, and on each July 1 thereafter, the Special Tax shall be increased by an amount not to exceed 2 % of the amount in effect for the previous Fiscal Year, up to the Fiscal Year commencing July 1, 2033. The Special Tax shall terminate as to such Assessor's Parcel at the close of the thirtieth (30`h) Fiscal Year following the beginning of the Initial Fiscal Year 2004-2005, i.e., the Special Tax shall terminate as of June 30, 2034. D. Method of Apportionment of the Special Tax Commencing with Fiscal year 2004-05, and each Fiscal Year thereafter, the Council shall determine the Special Tax to be collected from Taxable Property in CFD No. 1033. The Council may levy the Special Tax on all Assessor's Parcels of Development Property by levying the Special Tax for Land Use Classes 1, 2, 3, 4, 5 and 6. E. Limitations The Council shall not levy a Special Tax on properties owned by the State of California, federal or other local governments, except as otherwise provided in Sections 53317.3 and 53317.5 of the Act. Property which becomes the property of the State of California, the federal government or other public agency is liable for the Special Tax levied in the Fiscal Year during which such transfer occurs and will be subject to the Special Tax in each Fiscal Year thereafter under the original Land Use Class for such Assessor's Parcel. Such Assessor's Parcel may be exempted, at the direction, and in the discretion, of the Council in any Fiscal Year. F. Prepayment of the Special Tax Any owner of property within CFD No. 1033 may discharge the Special Tax obligation in full or in part, by making payment pursuant to the applicable Sections F. 1. or F. 2 as follows: 1. Upon the Approval of a Tentative or Parcel Map At the time of approval of a tentative or parcel map, the owner of such residential unit may prepay the Special Tax in full or in part by making a cash payment to CFD No. 1033, in which case the Special Tax for the Initial Fiscal Year, and each Fiscal Year thereafter, shall be reduced according to the following steps: a. Determine the maximum prepayment if the owner were to prepay the Special Tax in entirety. For example, for Projects approved prior to July 1, 2005, the maximum prepayment for each residential unit is $6,439.88 and for each acre of development as set forth on a site plan of development for Commercial/Retail/Office or Industrial zone property is $44,358.47. b. Determine the property's revised Special Tax by multiplying the property's applicable Special Tax for the Initial Fiscal Year determined EXHIBIT"1" F\Empeno\Planning\MitigationAgmtMcShane 15 pursuant to Section C. 1. by one minus the quotient obtained by dividing the cash payment made by the owner pursuant to this Section F. 1 .b. by the maximum prepayment obligation determined pursuant to Section F. 1 .a. The property's revised Special Tax for the Initial Fiscal Year, and each Fiscal Year thereafter, shall be the Special Tax for the applicable land use designation (Residential or Commercial/Retail/Office/Industrial zone Property) for purposes of Sections C. and D. herein. 2. After the Approval of the Tentative Map/Parcel Map After the time a tentative or parcel map has been approved, and prior to May 1 for the next succeeding Fiscal Year, the owner of such parcel may prepay the Special Tax in full or in part by making a cash payment to CFD No. 1033, in which case the Special Tax for the applicable Fiscal Year, and each Fiscal Year thereafter, shall be reduced according to the following steps: a. Compute the present value of the Special Tax using a period equal to the lesser of the remaining term for which the Special Tax may be levied on such parcel; then b. Multiply the amount determined in Section F.2.a; above, by the owner's desired prepayment percentage (which shall be a minimum of twenty percent (20%) of the present value of the total Special Tax) to determine the prepayment amount subject to additional adjustments as specified below; then C. Add the following to the result of Section F.2.b.: I) Unpaid special taxes, interest and penalties, if any, which have been entered on the Assessor's tax roll; and iv) a$75 administrative charge per Assessor Parcel. d. The Special Tax applicable to property utilizing a prepayment percentage less than 100% shall be revised in the Fiscal Year following the date of prepayment by multiplying such property's Special Tax by the prepayment percentage actually determined in Section F.2.b. Such property's revised Special Tax for the Fiscal Year following the date of prepayment, and each Fiscal Year thereafter, shall be the Special Tax for such property for purposes of Sections C. and D. herein. In no event shall the In-Lieu Fee be increased by more than 2% per year nor shall the Tax be increased by more than 2% per year, based upon a cost inflation formula to be continued in the Estimated Cost Report and the Engineer's Report and made a part of the formation documents for the District, from the previous year for any property located within the District that was previously assessed and charged with the Tax in the immediately preceding year. The EXHIBIT"1" F\Empeno\Planning\M itigationAgmtMcShane 16 Special Tax and the In-Lieu Fee shall be recalculated annually to reflect (i) any changes in the O&M Expenses, (ii) the annexation of additional property into the District, (iii) the payment of the O&M Expenses, or any portion thereof, with funds other than the Tax, (iv) the amount of In- Lieu Fees available to be applied for the applicable for which the calculation is being made, and (v) any other changes which may affect the estimated O&M Expenses for such year. G. Manner of Collection The Special Tax will be collected in the same manner and at the same time as ordinary ad valorem real property taxes. The Special Tax shall be subject to the same penalties and the same procedure, sale and lien priority in case of a delinquency as provided for with ad valorem taxes. The collection of the Special Tax shall otherwise be subject to the provisions of the Act. The Common Council reserves the power to provide for alternative means of collection of special taxes as permitted by the Act. H. Termination of Special Tax Levy Provided that Special Taxes previously levied on an Assessor's Parcel are not delinquent, the lien of special taxes of CFD No. 1033 shall terminate as to such Assessor's Parcel at the close of the thirtieth (30) Fiscal Year following the beginning of the Initial Fiscal Year for such Assessor's Parcel. Furthermore, provided an owner within CFD No. 1033 fully and completely discharges their special tax obligation pursuant to Sections F.1 and/or F.2, the lien of special taxes of CFD No. 1033 shall terminate. Pursuant to Section 53330.5 of the Act, the Common Council shall, upon written request, cause to be recorded in the official records of San Bernardino County a Notice of Cessation of Special Tax Lien for each Assessor's Parcel upon termination of the lien on such Assessor's Parcel. I. Review/Appeal Board The Council shall establish, as part of the proceedings and administration of CFD No. 1033, a special Review/Appeal Board. Any landowner who feels that the amount of the Special Tax, as to their Assessor's Parcel, is in error may file a notice with the Review/Appeal Board appealing the amount of the levy. The Review/Appeal Board shall interpret this Rate and Method of Apportionment of the Special Tax and make determinations relative to the annual administration of the special tax and any landowner appeals, as herein specified. EXHIBIT"I" F\Empeno\Planning\M itigationAgmtMcShane 17 Form No. 1056.92(10/17/92) Order Number: SSB-2291961 ALTA Loan Policy Form 1 Page Number: 2 SCHEDULE A Loan Number: McShane Shenandoah Premium: $6,636.36 Amount of Insurance: $9,212,964.00 Policy Number:SSB-2291961 Date of Policy: September 22, 2006 at 2:53 p.m. 1. Name of Insured: Guaranty Bank, a federal savings bank GUARANTY BANK, its successors and assigns as their interests may appear as defined in Paragraph 1(a) of the Conditions and Stipulations of this policy. 2. The estate or interest in the land which is encumbered by the insured mortgage is: A fee, as to Parcel A, an easement as to Parcel B 3. Title to the estate or interest in the land is vested in: McShane Shenandoah Industrial, LLC, a Delaware Limited Liability Company 4. The insured mortgage and assignments thereof, if any, are described as follows: A deed of trust to secure an indebtedness in the original principal amount of$9,212,964.00 recorded September 8, 2006 as Document No. September 22, 2006 of Official Records. Dated: 20060651505 Trustor: McShane Shenandoah Industrial, LLC, a Delaware Limited Liability Company Trustee: First American Title Company Beneficiary: Guaranty Bank, a federal savings bank A document entitled "Assignment of Leases and Rents" recorded September 22, 2006 as Instrument No. 20060651506 of Official Records, as additional security for the payment of the indebtedness secured by the deed of trust. First American Title Recording requested by ) and when recorded mail to: ) City of San Bernardino ) 300 North "D" Street, 3rd Floor ) San Bernardino, CA 92418 ) Attn: Laszlo "Les" Fogassy ) Exempt: Government Code § 6103 Space above this line for Recorder's use only FUNDING AND MITIGATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND MeSHANE SHENANDOAH INDUSTRIAL, LLC, RELATIVE TO N11ITIGATION OF FIRE STATION SERVICE IMPACTS ( DEVELOPMENT PERMIT TYPE II No. 05-35). THIS FUNDING AND MITIGATION AGREEMENT ("Agreement") dated as of 20 is entered into by and between the City of San Bernardino, a charter city and a public body, corporate and politic (the "City"), and McShane Shenandoah Industrial LLC, a Delaware Limited Liability Company, (the "Landowner"). WITNESSETH: WHEREAS, the Landowner is the owner of the property described in Exhibit "A" and depicted in Exhibit "B" hereto (the "Property") which the Landowner proposes to develop a 254,500 square foot warehouse/distribution facility on 13.4 acres *located at the terminus of Shenandoah Way approximately. 1,000 feet west of Hallmark Parkway, APN 0266-362-01, Development Permit Type II No. 05-35 (the "Proposed Development"); and WHEREAS, currently there are areas within the City which are not provided with adequate fire and safety protection and in light of the recent fires which ravaged the City, and new development within the Verdemont area of the City, because of inadequate fire protection, will cause substantial environmental impacts; and WHEREAS, it is in the best interest of the City to provide additional fire and safety protection prior to any new development in the Verdemont area, as well as provide for a guaranteed means to pay for such ongoing protection and assure the availability of Fire Station Services (as hereinafter defined) of the City; and WHEREAS, prior to the approval of any subdivision map, development permit, or other construction in the Verdemont area, the City may require such future development within the F`Empeno`Planning MitigationAgmtN16hane 1 City to mitigate such substantial environmental impacts pursuant to the California Environmental Quality Act ("CEQA"), Public Resources Code Section 21000, et. seq., and Government Code Section 66474(e); and WHEREAS, the Landowner is seeking approval of the Proposed Development by the City; and WHEREAS, the City, subject to receipt of funds pursuant to this Agreement, intends to provide payment for a portion of the operations and maintenance of fire protection and suppression services ("Fire Station Services") as authorized pursuant to Section 53313 of the Mello-Roos Community Facilities District Act of 1982, as amended (the "Act") for the Proposed Development and has formed a community facilities district ("CFD No. 1033"), and is amenable to annexing the Property, pursuant to the Act, in CFD No. 1033 "Annexation" proceedings, to pay for such Fire Station Services to serve the Proposed Development; and WHEREAS, the City and the Landowner intend that partial funding for Fire Station Services required to serve the development within the Property shall be provided on a timely basis by means of payment through CFD No. 1033 or by payment of the In-Lieu Fee (as hereinafter defined) as provided in this Agreement. NOW, THEREFORE, in consideration of the terns and conditions herein set forth, the City and the Landowner DO HEREBY AGREE AS FOLLOWS: 1. Definitions. As used in this Agreement, all capitalized terms shall have the meanings set forth in Section A of Exhibit "C" or the following meanings, whichever is applicable: "Annexation" means the annexation of the Property to CFD No. 1033 as provided under Section 53339 of the Act. "CFD No. 1033" means the community facilities district formed by the City pursuant to the Act and known by that name. "City" means the City of San Bernardino, California. "Completion of Annexation to CFD No. 1033" shall be deemed to have occurred upon the occurrence of all of the following: (1) the annexation of the Property to CFD No. 1033, including the authorization for the levy by CFD No. 1033 of the Special Taxes; (ii) the approval by the qualified electors of CFD No. 1033 of the levy of the Special Taxes; (iii) the expiration of the statute of limitations provided in Section 53359 of the Act, and (iv) the effective date of the first applicable validating legislation by the State of California. "In-Lieu Fee" means a payment to be made as provided under Section 2.1 prior to the issuance of each certificate of occupancy for residential development in the amount of 56,349.88 per dwelling unit per year, whether for a single family or a multi-family unit, FEmpeno'PlanninpMitigationAgmtMcShane 2 rer and prior to the issuance of each certificate of occupancy for commercial/'retail/office/industrial zoning classifications in the amount of 544,358.47 per acre of development as set forth on a site plan of development, which amounts shall increase by an amount not to exceed 2% per Fiscal Year of the amount in effect for the previous Fiscal Year, commencing July 1, 2005 up to the Fiscal Year commencing July 1, 2033. "Project" means any project undertaken for the purpose of development involving the approval or issuance of any permit or entitlement for use by any governmental agency and includes all such permits and entitlements for use whether classified as quasi- legislative, quasi-judicial or ministerial in nature, including, but not limited to, the adoption, amendment, approval or issuance of any general plan, specific plan, master plan, zoning ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final parcel map, variance, conditional use permit, site plan, plot plan, development plan, annexation, public utility connection, building pen-nit and certificate of occupancy. "Fire Station Services" means the operations and maintenance of fire suppression and protection facilities, to serve needs created by development within the boundaries of CFD No. 1033. "Special Tax" or "Special Taxes" means the " Special Tax" as defined in Exhibit "C" including any whole or partial prepayment thereof as provided in Section F of Exhibit "State" means the State of California. 2. Mitigation of Fire Station Services. 2.1 Pavment of In-Lieu Fee/Annexation to the Mello-Roos District. In consideration for the City providing Fire Station Services to serve the Property, the Landowner shall, prior to the issuance of a certificate of occupancy, pay to the City the In-Lieu Fee in accordance with the applicable land use zone designation, or, in the alternative, the Landowner agrees to execute this Agreement and all other documents requested by the City relative to annexation of the Property to CFD No. 1033 and Special Taxes of CFD No. 1033 as described in Exhibit "C", in which event City agrees to annex the Property to CFD No. 1033 at the earliest practicable date. The annexation of the Property to CFD No. 1033 shall be on the basis of the parameters set forth in Exhibit "C" with respect to the Rate and Method of Apportionment of the therein described Special Taxes. The Landowner, and its successors and assigns, shall be deemed to have fulfilled and mitigated their entire obligation to assist in financing Fire Station Services to serve the development of the Property, so long as the provisions of this Agreement are complied with by the Landowner, upon the occurrence of the Annexation of the Property to CFD No. 1033 or the payment of the In-Lieu Fee, if such In-Lieu Fee is paid pursuant to the terns of this Agreement. The Landowner hereby acknowledges that there are certain costs associated with the Annexation of the Property into CFD No. 1033. In this regard the Landowner and the City agree •F`.Empeno,Planning`AlitigationAgmtMeShane 3 that any costs relative to such Annexation proceedings shall be borne by the Landowner. The City agrees that it will periodically annex property into CFD No. 1033, in accordance with and pursuant to the provisions of the Act, in order to fairly distribute the costs of annexation across the property or properties participating in such Annexation. The City agrees to undertake reasonable efforts to contact other developers and notify such other developers of the opportunity to annex the property of such other developers into CFD No. 1033. The City however gives no representation or warranty whatsoever to the Landowner that any other parcels of property will be prepared to annex into CFD No. 1033 at the time of such notification. The parties agree that if the Landowner and one or more other developers participate in an Annexation to CFD No. 1033, the costs of Annexation shall be distributed between or among the Landowner and the other developers on a pro rata basis by acreage of property or properties included in such Annexation proceedings. Landowner specifically acknowledges that the cost to the City relative to such Annexation shall include, but shall not necessarily be limited to, costs of preparation of relevant documentation, recording fees, if any, reasonable engineering and attorneys fees, and similar and related costs. 2.2 Landowner Consent and Waivers: Landowner hereby requests that the Property be included, at the earliest possible date, in CFD No. 1033. Landowner hereby consents to the inclusion of the Property in CFD No. 1033 and to the levy and collection of the Special Tax for CFD No. 1033 and hereby waives any and all rights to challenge the Formation of, or Annexation to, CFD No. 1033, the proceedings to include the Property, the levy and collection of the Special Tax for CFD No. 1033 and any and all other proceedings related thereto. Landowner represents that it is the person legally entitled and authorized to cast the ballots attributable to the Property in the landowner, mailed-ballot election to be conducted within CFD No. 1033 to determine, among other things, whether certain land, including the Property, shall be included in CFD No. 1033 and shall be subject to the Special Tax. Landowner consents to the assessment of the Special Tax on the Property in the amount of 5350.00 per parcel for Residential property per year and $2,445 per parcel for Commercial, Retail, Office or Industrial property per year (2004 Special Tax amounts, subject to adjustment in accordance with Section C.1 of the Rate and Method of Apportionment attached hereto as Exhibit "C") and waives the requirements for notice and hearing on the imposition of said Special Tax, and waives any and all minimum time periods relative to the election pursuant to Government Code Section 53326(a). Further, the Landowner hereby waives the following: a) the preparation and distribution of an impartial analysis of the ballot measure, as well as arguments in favor and against, under the authority of Government Code Section 53327(b); b) the requirements regarding the time to mail ballots to the qualified electors under Elections Code Section 4101, and agrees that the Landowner or F`,Empeno`.Planning\MitigationAgmtMcShane 4 Landowner's designated representative may accept either mailed service or personal service of the ballots; C) the requirements regarding identification envelopes for the return of mailed ballots contained in Government Code Section 53327.5; d) any and all defects in notice or procedure in the conduct of the election, whether known or unknown (except the right to vote and to have the ballots fairly counted), and Landowner hereby further states that the election is being expedited, pursuant to this waiver and consent, at the particular instance and request of the Landowner. 2.3 Other Properties. In order to equalize treatment of landowners seeking to develop within the City boundaries, the City agrees to use its best efforts to enter into agreements comparable to this Agreement with the owners of other properties within the City in order to obtain financial commitments for Fire Station Services from them at least equal to that committed to by the Landowner hereby; provided, however, if, notwithstanding the use of such best efforts, the City is unable to enter into such agreements, such inability shall not constitute a breach of this Agreement. 2.4 Landowner's Covenant. The Landowner hereby covenants to the City that the Landowner shall provide, or by contract with any developer or merchant builder of any part of the Property require to be provided, the "Notice of Special Tax" required by Section 53341.5 of the Act or any similar successor statute. The Landowner expressly acknowledges that the City and CFD No. 1033 shall have no duty or obligation and shall incur no liability, jointly or severally, with respect to the foregoing covenant of the Landowner. 2.5 Indemnification Rel?arding Disclosure. The Landowner shall assume the defense of, indemnify and hold hannless the City and CFD No. 1033 and each of their officers, employees and agents from and against any and all actions, damages, claims, losses, expenses or liability arising from, or related to, Landowner's covenant and obligation to disclose the Special Tax to property owners as provided in Section 53341.5 of the Act, or as amended in the future to the extent such information is furnished by the Landowner. 3. Binding on Community Facilities District. Upon Annexation to CFD No. 1033, CFD No. 1033 shall automatically become a party to this Agreement, and all provisions hereof which apply to the City shall also apply to CFD No. 1033. The Mayor and the Common Council of the City, acting as the legislative body of CFD No. 1033, shall perfonn all parts of this Agreement which require performance on the part of CFD No. 1033. 4. General Provisions. 4.1 All of the covenants, stipulations, promises and agreements contained in this Agreement by or on behalf of, or for the benefit of, any of the parties hereto, shall bind and inure to the benefit of the successors of the respective parties F'•Empeno`Planning AlitigationAgmNcShane 4.2 Assignment. (a) No Separate Transfers. No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. (b) Notice and Assumption. Prior to Annexation of' the Propert% into ('FD No. 1033 or payment iii lull of the In-Lieu Fee. then concurrent with any such sale, transfer or assignment, or within thirty (30) days thereafter, the Landowner shall notify the City, in writing, of such sale, transfer or assignment and shall provide City with an executed agreement, in a form reasonably acceptable to the City, by the purchaser, transferee or assignee by which the purchaser, transferee or assignee expressly and unconditionally assumes all duties and obligations of the Landowner in this Agreement with respect to the Property or part thereof conveyed. (c) Consequences of Non-Compliance. Any sale, transfer or assignment not made in strict compliance with paragraph (b) of this Section 4.2 shall constitute a default by the seller, transferor or assignor under this Agreement; provided, however, such default may be cured at any time by the purchaser, transferee, or assignee executing an agreement pursuant to paragraph (b) of this Section 4.2 and no such default shall affect the rights under this Agreement of any other owner of any part of the Property. Notwithstanding the failure of any purchaser, transferee or assignee, to execute the agreement required by paragraph (b) of this Section 4.2, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. 4.3 Amendment and Waiver. This Agreement shall be amended only by a written instrument executed by the parties hereto or their respective successors and assigns. All waivers of this.Agreement must be in writing and signed by the appropriate authorities of the parties hereto. 4.4 Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality or enforceability of the remaining portions hereof shall not, in any way, be affected or impaired thereby. 4.5 Integration. This Agreement supersedes any and all other agreements, either oral or in writing, between the parties with respect to the subject matter of this Agreement. 4.6 Notices. Demands and Communication. Formal notices, demands and communications between the City and the Landowner hereunder shall be sufficiently given if(1) personally delivered, (ii) mailed by registered or certified mail, postage prepaid, return receipt requested, or (iii) delivered by Federal Express or other reliable private express delivery service to the principal offices of the City or Landowner, as set forth below. Such written notices demands and communications may be sent in the same manner to such other addresses as either F,Empeno?lanning MitigationAgmtWShane 6 party may from time to time designate by mail as provided in this Section. Such notices demands or communications shall be deemed received upon delivery if personally served, or upon the expiration of three (3) business days if given by other approved means as specified above: If to the City: City Hall 300 North "D" Street San Bernardino, California 92418 Attn: Director, Development Services If to the Landowner: Sean Cummings McShane Corporation 2850 E. Camelback Road, Suite 325 Phoenix, Arizona 85016 (602) 508-6166 scumniings@mcshane.com With a copies to: John Dobrott Vice President McShane Corporation 4590 MacArthur Road, Suite 500 Newport Beach, CA 92660 (619) 222-1000 j dobrott@mcshane.com Steve Wellington Senior Counsel Allen Matkins 501 West Broadway, 15th Floor San Diego, CA 92101-3541 (619) 233-1155 swellington a allenmatkitls.com Dan McShane McShane Corporation 9550 W. Higgins Road, Suite 200 Rosemont, IL 60018 (847) 292-4300 4.7 Attorneys' Fees. In any litigation arising out of the breach of this Agreement by any party, the prevailing party in such litigation, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to recover reasonable attorneys' fees and all other reasonable costs incurred in such litigation and allowed by the court. The costs, salary and expenses of the City Attorney and members of his office, shall constitute attorneys' fees for the purposes of this Agreement. F`,Fmpeno,•Planningl9itigationAgmtMcShane 7 4.8 InteEpretation. The terms of this Agreement, including all Exhibits hereto, shall not be construed for or against any party by reason of the authorship of this Agreement, but shall be construed in accordance with the meaning of the language used. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 49 Force Majeure. The obligations of any party under this Agreement, and all deadlines by which any party's obligations hereunder must be performed, shall be excused or extended for a period of time equal to any prevention, delay or stoppage in performance which is attributable to any strike, lock-out or other labor or industrial disturbance, civil disturbance, act of a public enemy, war, riot, sabotage, blockade, embargo, lightning, earthquake, fire, storm, hurricane, tornado, flood, explosion, court injunction, moratorium on any necessary public utilities. 4.10 Recordation and Subordination. (a) Recordation. This Agreement or a notice describing the existence of this Agreement and the Property may be recorded by the Landowner or by the City. The parties hereby agree to execute such documents as may be needed to give such notice. (b) Subordination. Any existing monetary encumbrances or options in favor of non-governmental agencies or entities shall be subordinated to this Agreement prior to City certifying to the availability of the Fire Station Services for the Property. 4.11 Execution. This Agreement may be executed in several counterparts each of which shall be an original and all of which shall constitute but one and the same agreement. 4.12 Mutual Cooperation. Each party to this Agreement agrees to cooperate with the others, to act in good faith, to sign any other and further documents, and perform such other acts, as may be reasonably necessary or proper in order to accomplish the intent of this Agreement. No party shall do anything which shall have the effect of harming or injuring the right of any other party to receive the benefits of this Agreement. The parties shall refrain from doing anything which would render their performance under this Agreement impossible or impractical. 4.13. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person or entity shall have any right of action based on any provision of this Agreement. 4.14 Exhibits. All Exhibits attached hereto are incorporated into this Agreement by reference FEmpenoPlanning Mitigation AgmtMcShane 8 FUNDING AND MITIGATION AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND McSHANE SHENANDOAH INDUSTRIAL, LLC, RELATIVE TO MITIGATION OF FIRE STATION SERVICE IMPACTS ( DEVELOPMENT PERMIT TYPE II No. 05-35). IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY: LANDOWNER: McSHANE SHENANDOAH INDUSTRIAL, LLC, By: By: PATRICK J. MORRIS, Mayor Print Name/Title: Attest: By: City Clerk Approved as to form: MES F. PENMAN, City Attorney F'�EmpenoAPlanning MitigationAgmtMcShane 9 EXHIBIT A LEGAL DESCRIPTION I F\EmpenoNP lann ing',Nt itigationAgmtMcShane 10 EXHIBIT LEGAL DESCRIPTION Apn: 0266-362-01 Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows: PARCEL NO. A: PARCEL 1, AS PER PLAT ATTACHED TO CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 84-1, RECORDED NOVEMBER 20, 1985, INSTRUMENT NO. 85-292624, OFFICIAL RECORDS, BEING DESCRIBED AS FOLLOWS: A PORTION OF PARCEL 1 AND A PORTION OF PARCEL 2, PARCEL MAP NO. 4437, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 43 OF PARCEL MAPS, PAGE (S) 63 TO 66, INCLUSIVE, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1; THENCE NORTH 38 DEG. 55' 44" WEST, 1042.00 FEET; THENCE NORTH 51 DEG. 04' 16" EAST, 215.00 FEET; THENCE NORTH 01 DEG. 31' 25" WEST, 85.60 FEET; THENCE NORTH 51 DEG. 04' 16" EAST, 289.58 FEET; THENCE SOUTH 38 DEG. 55' 44" EAST, 1070.00 FEET TO THE NORTHERLY LINE OF SHENANDOAH WAY (AS SAME IS NOW 80 FEET WIDE); THENCE SOUTH 51 DEG. 04' 16" WEST, 410.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 50.00 FEET; THENCE THROUGH A CENTRAL ANGLE OF 78 DEG. 27' 47" AND AN ARC LENGTH OF 68.47 FEET; THENCE SOUTH 51 DEG. 04' 16" WEST, 101.01 FEET TO THE POINT OF BEGINNING. EXHIBIT B MAP OF PROPERTY • i I F\Empeno\Plann ing`,.M itigationAgmtMcShane 11 r;° '!' i i s#' s t i iii i f!i:id �,�•_. a `Z 3` EH oil , .f • : F ti 4 I ' ,.' t (F i 1p �'6 tt� rl!i• [ !IE I•"• [ �' ii' �i Ft,c,f ;'{ ; � !� I � ,t � '.,C t' s ( ••: }1 � I j i a \��'�ti� a�:�I� �r�a{'!F.r i i.r i;9..!iif�i r+i.!?F E•{;I�tP}f.E[!_•�1�°?i:t.'.i_f:'+Ifi,.�(f_F,G!ri:a_.ar�el iij.n['F„1 j,t.�+t�f 1::i.i•�:.i-lIt:r F���,l•i f.e! 1;f7(l:F::�(°tt}'4P l.r,.,'tFLf A oGdn,:'G;%'fFF,F,'' FK 1: [i_ `� -1f.'a'.I.'.i-i ti1•i.f.:F`-.irG s.i r' t(t hr o p-i(4°o'�.a t"!i E.!i;Jf i'i�p!ir[F i.7-�tr[E•iE�t r i. �1 i:t�r,S i-r{3:t_:i'.!.tri1.:::t: �.;±''t(ii1`'r”,¢..r•"=.C T,i�i i:°{p s:[ r t j ;ifi map l °F i I 6 ,jII 1l11 l i ! ,y+� sit rf s;i�4:i ' r !.l PJ A.M lot • �,-,...:-/ n: - -.� - -- -- °- - - - - \/�•-;•r {III i[!7t } I �.!• .� iI - I s ` I I -1 III' i rn III J'Jtt.. �'� 'Im z° � i' II' ! ) tAtt{� a �; �,•[F6'F ., I , [ �� _ { I, I t • Naa I E[t• _ ..:PEii�i[ii[d •� � m �y I�.h� :I 2 Ali. I ,' - 1 r` g{ L,Y I1 ,oe oil�'3 >— rllri t i3 .. J ��• ���i S�fp a F!�j f i i I _ ,- _:.. EXHIBIT "B„ EXHIBIT C RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX COMMUNITY FACILITIES DISTRICT NO. 1033 CITY OF SAN BERNARDINO This Rate and Method of Apportionment of this Special Tax sets forth the special tax applicable to each Assessor's Parcel within Community Facilities District No. 1033 ("CFD No. 1033") of the City of San Bernardino ("City") to be levied and collected according to the special tax liability determined by the Common Council of the City, acting as the Legislative Body of CFD No. 1033. The applicable Special Tax shall be determined pursuant to the application of the appropriate amount or rate as described below. All Taxable Property within CFD No. 1033, unless exempted by law, or the provisions of Section E, below, shall be subject to the applicable Special Tax levied and collected to the extent and in the manner herein provided. This Rate and Method of Apportionment also is provided as an explanation to allow landowners or residents within CFD No. 1033 to estimate the Special Tax to be annually levied and collected, or prepaid, as the case may be, with regard to property within CFD No. 1033. A. Definitions "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 (commencing with Section 53311) of Division 2 of Title 5 of the California Government Code. "Administrative Expense" means any costs incurred by the City on behalf of CFD No. 1033 related to the determination of the amount of the annual levy of the Special Tax, the collection of the Special Tax, and the other costs incurred in order to carry out the authorized purposes of CFD No. 1033. "Special Tax" means the special tax to be levied in each Fiscal Year pursuant to Sections C. and D. on each Assessor's Parcel for a period not to exceed 30 years including the Initial Fiscal Year. "Assessor's Parcel" means a parcel of land as designated on an official map of the San Bernardino County Assessor which has been assigned a discrete identifying parcel number. "Commercial/Retail/Office/Industrial Property" means property zoned for commercial, retail, office or industrial uses or other non-residential uses. "Common Council" means the Common Council of the City of San Bernardino. wrr F�'Empeno.Planning`MitigationAgmt`1cShane 12 "Residential Property" means for any Fiscal year all Taxable Property for which a foundation building permit for single family or multi-family units was issued prior to May 1 preceding the Fiscal Year in which the Special Tax is being levied. "Facilities" means the Fire Station Services as may be identified in the Community Facilities District Engineer's Report prepared for CFD No. 1033 on file in the Office of the City Clerk, or the continued operation and maintenance of the Verdemont Fire Station, including but not limited to payment of compensation of employees, including salaries and benefits, maintenance and operation of fire safety vehicles and the fire station structures, any other expenses required to keep the such equipment and improvements in fit operating condition and any incidental expenses (collectively, the "O&M Expenses") to be financed by CFD No. 1033 pursuant to the Act. "Fiscal Year" means the period starting on July 1 st and ending the following June 30th. "In-Lieu Fee" means a one-time fee, which fee shall be deposited into an interest bearing reserve account for future O&M Expenses in the following amounts and for which a further explanation of the In-Lieu Fee will be described in an estimated cost report: Residential Zone 56,349.88 per residential dwelling unit as an In- Lieu Fee Commercial, Retail, Office Zone S44,358.47 per acre of development as set forth on a site plan of development as an In-Lieu Fee Industrial Zone S44,358.47 per acre of development as set forth on a site plan of development as an In-Lieu Fee "Land Use Class" means any of the classes of Property listed in Table 1 and Table 2, below. "Project" means any project undertaken for. the purpose of development involving the approval or issuance of any permit or entitlement for use by any governmental agency and includes all such permits and entitlements for use whether classified as quasi- legislative, quasi-judicial or ministerial in nature, including, but not limited to, the adoption, amendment, approval or issuance of any general plan, specific plan, master plan, zoning ordinance, tentative subdivision map, tentative parcel map, final subdivision map, final parcel map, variance, conditional use permit, site plan, plot plan, development plan, annexation, public utility connection, building permit and certificate of occupancy. "Taxable Property" means all Assessor's Parcels within the boundaries of CFD No. 1033 which are not exempt from the Special Tax pursuant to the Act and the provisions of Section E. herein. 1"Empeno.Planning MitigationAgm0,16hane 13 B. Assignment to Land Use Classes As soon as practicable, as of May 1 for the next succeeding Fiscal Year, all Taxable Property within CFD No. 1033 shall be categorized as Residential Property or either Commercial/Retail/Office/Industrial Zone Property. Taxable Property shall be subject to a Special Tax pursuant to Sections C. and D. below. C. Special Tax 1. Residential Property The Special Tax for each Assessor's Parcel classified as Residential Property shall be the amount determined by reference to Table 1 and the paragraphs that follow Table 1. Table 1 Special Tax Rates for Residential Property (For the Initial Fiscal Year 2004-05) Special Land Use Class Land Use Description Tax Per Unit (2004-05) 1 Single Family Detached Unit $350.00 2 Multi-Family Unit/Attached Dwelling Unit $350.00 In determining the Special Tax which may be levied in any Fiscal Year, on July 1, 2005, and on each July 1 thereafter, the Special Tax shall be increased by an amount not to exceed 2 % of the amount in effect for the previous Fiscal Year, up to the Fiscal Year commencing July 1, 2033. The Special Tax shall terminate as to such Assessor's Parcel at the close of the thirtieth (30`h) Fiscal Year following the beginning of the Initial Fiscal Year 2004-2005, i.e., the Special Tax shall terminate as of June 30, 2034. 2. Commercial/Retait/Office/Industrial Zone Property The Special Tax for each Assessor's Parcel classified as either Commercial, Retail, Office, or Industrial Zone Property shall be the amount determined by reference to Table 2 and the paragraphs that follow Table 2. Table 2 Special Tax Rates for Commercial/Retail/Office/Industrial Zone Property (For the Initial Fiscal Year 2004-05) Special Land Use Class Land Use Description Tax Per Acre (2004-05) 3 Commercial $2,445.00 4 Retail $2,445.00 5 Office $2,445.00 6 Industrial $2,445.00 F`Empeno Plannine,MitigationAgmtNicShane 14 In determining the Special Tax which may be levied in any Fiscal Year, on July 1, 2005, and on each July 1 thereafter, the Special Tax shall be increased by an amount not to exceed 2 % of the amount in effect for the previous Fiscal Year, up to the Fiscal Year commencing July 1, 2033. The Special Tax shall terminate as to such Assessor's Parcel at the close of the thirtieth (30th) Fiscal Year following the beginning of the Initial Fiscal Year 2004-2005, i.e., the Special Tax shall terminate as of June 30, 2034. D. Method of Apportionment of the Special Tax Commencing with Fiscal year 2004-05, and each Fiscal Year thereafter, the Council shall determine the Special Tax to be collected from Taxable Property in CFD No. 1033. The Council may levy the Special Tax on all Assessor's Parcels of Development Property by levying the Special Tax for Land Use Classes 1, 2, 3, 4, 5 and 6. E. Limitations The Council shall not levy a Special Tax on properties owned by the State of California, federal or other local governments, except as otherwise provided in Sections 53317.3 and 53317.5 of the Act. Property which becomes the property of the State of California, the federal government or other public agency is liable for the Special Tax levied in the Fiscal Year during which such transfer occurs and will be subject to the Special Tax in each Fiscal Year thereafter under the original Land Use Class for such Assessor's Parcel. Such Assessor's Parcel may be exempted, at the direction, and in the discretion, of the Council in any Fiscal Year. F. Prepayment of the Special Tax Any owner of property within CFD No. 1033 may discharge the Special Tax obligation in full or in part, by making payment pursuant to the applicable Sections F. 1. or F. 2 as follows: 1. Upon the Approval of a Tentative or Parcel Map At the time of approval of a tentative or parcel map, the owner of such residential unit may prepay the Special Tax in full or in part by making a cash payment to CFD No. 1033, in which case the Special Tax for the Initial Fiscal Year, and each Fiscal Year thereafter, shall be reduced according to the following steps: a. Determine the maximum prepayment if the owner were to prepay the Special Tax in entirety. For example, for Projects approved prior to July 1, 2005, the maximum prepayment for each residential unit is 56,439.88 and for each acre of development as set forth on a site plan of development for Commercial/Retail/Office or Industrial zone property is 544,358.47. b. Determine the property's revised Special Tax by multiplying the property's applicable Special Tax for the Initial Fiscal Year determined F.Empeno`Planning llitigationAemtMcShane 15 pursuant to Section C. 1. by one minus the quotient obtained by dividing the cash payment made by the owner pursuant to this Section F. 1 .b. by the maximum prepayment obligation determined pursuant to Section F. 1 .a. The property's revised Special Tax for the Initial Fiscal Year, and each Fiscal Year thereafter, shall be the Special Tax for the applicable land use designation (Residential or Commercial/Retail/Office/Industrial zone Property) for purposes of Sections C. and D. herein. 2. After the Approval of the Tentative Map/Parcel Map After the time a tentative or parcel map has been approved, and prior to May 1 for the next succeeding Fiscal Year, the owner of such parcel may prepay the Special Tax in full or in part by making a cash payment to CFD No. 1033, in which case the Special Tax for the applicable Fiscal Year, and each Fiscal Year thereafter, shall be reduced according to the following steps: a. Compute the present value of the Special Tax using a period equal to the lesser of the remaining term for which the Special Tax may be levied on such parcel; then b. Multiply the amount determined in Section F.2.a; above, by the owner's desired prepayment percentage (which shall be a minimum of twenty percent (20%) of the present value of the total Special Tax) to determine the prepayment amount subject to additional adjustments as specified below; then C. Add the following to the result of Section F.2.b.: I) Unpaid special taxes, interest and penalties, if any, which have been entered on the Assessor's tax.roll; and iv) a S75 administrative charge per Assessor Parcel. d. The Special Tax applicable to property utilizing a prepayment percentage less than 100% shall be revised in the Fiscal Year following the date of prepayment by multiplying such property's Special Tax by the prepayment percentage actually determined in Section F.2.b. Such property's revised Special Tax for the Fiscal Year following the date of prepayment, and each Fiscal Year thereafter, shall be the Special Tax for such property for purposes of Sections C. and D. herein. In no event shall the In-Lieu Fee be increased by more than 2% per year nor shall the Tax be increased by more than 2% per year, based upon a cost inflation formula to be continued in the Estimated Cost Report and the Engineer's Report and made a part of the formation documents for the District, from the previous year for any property located within the District that was previously assessed and charged with the Tax in the immediately preceding year. The F`•Empeno'Tlann ing`N9itigationAgmuNicShane 16 Special Tax and the In-Lieu Fee shall be recalculated annually to reflect (1) any changes in the O&M Expenses, (ii) the annexation of additional property into the District, (iii) the payment of the O&M Expenses, or any portion thereof, with funds other than the Tax, (iv) the amount of In- Lieu Fees available to be applied for the applicable for which the calculation is being made, and (v) any other changes which may affect the estimated O&M Expenses for such year. G. Manner of Collection The Special Tax will be collected in the same manner and at the same time as ordinary ad valorem real property taxes. The Special Tax shall be subject to the same penalties and the same procedure, sale and lien priority in case of a delinquency as provided for with ad valorem taxes. The collection of the Special Tax shall otherwise be subject to the provisions of the Act. The Common Council reserves the power to provide for alternative means of collection of special taxes as permitted by the Act. H. Termination of Special Tax Levy Provided that Special Taxes previously levied on an Assessor's Parcel are not delinquent, the lien of special taxes of CFD No. 1033 shall terminate as to such Assessor's Parcel at the close of the thirtieth (30) Fiscal Year following the beginning of the Initial Fiscal Year for such Assessor's Parcel. Furthermore, provided an owner within CFD No. 1033 fully and completely discharges their special tax obligation pursuant to Sections F.1 and/or F.2, the lien of special taxes of CFD No. 1033 shall terminate. Pursuant to Section 53330.5 of the Act the Common Council shall, upon written request, cause to be recorded in the official records of San Bernardino County a Notice of Cessation of Special Tax Lien for each Assessor's Parcel upon tennination of the lien on such Assessor's Parcel. I. Review/Appeal Board The Council shall establish, as part of the proceedings and administration of CFD No. 1033, a special Review/Appeal Board. Any landowner who feels that the amount of the Special Tax, as to their Assessor's Parcel, is in error may file a notice with the Review/Appeal Board appealing the amount of the levy. The Review/Appeal Board shall interpret this Rate and Method of Apportionment of the Special Tax and make determinations relative to the annual administration of the special tax and any landowner appeals, as herein specified. F,EmpenoPlanning MitigationAgmtWShane 17