HomeMy WebLinkAbout2007-444
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RESOLUTION NO. 2007-444
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A
LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE
PROPOSED ASSESSMENT DISTRICT NO. 1063 (CENTRAL AVENUE AND LENA
ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT).
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and
directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, the form
of which is attached hereto as Exhibit "I" and made part hereof, relative to proposed Assessment
District No. 1063, known as the Central Avenue and Lena Road Area Landscape Assessment
District, as set forth in the Engineer's Report for said Assessment District, on file in the office of
the City Clerk.
SECTION 2. Authorization to execute the Landscape Maintenance Services Agreement
is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution.
/1/
10/12/07
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE
SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1063
(CENTRAL A VENUE AND LENA ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT
DISTRICT).
I HEREBY CERTIFY that the foregoing resolution was du1y adopted by the Mayor and
Common Council of the City of San Bernardino at a joint regular
meeting thereof
, 20~, by the following vote, to wit:
held on the 5th day of November
Council Members: AYES NAYS
ESTRADA x
BAXTER x
BRINKER x
DERRY X
KELLEY x
JOHNSON X
MCCAMMACK X
ABSTAIN ABSENT
The foregoing resolution is hereby approved this 7;711- day of November , 2())~.
ayor
Approved as to Form:
tP~
SF. PENMAN, City Attorney
10/12/07
2
2007-444.
Recording Requested By:
City of San Bernardino
300 North "D" Street
San Bernardino, CA 92418
When Recorded, Mail To:
City of San Bernardino
Real Property Section, 3rd Floor
300 North "D" Street
San Bernardino, CA 92418
AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
(Central Avenue and Lena Road/Gateway South)
TillS AGREEMENT BETWEEN TIlE CITY OF SAN BERNARDINO AND PROPERTY
OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY
IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance
Al!1'eement") is dated as of t"O'lem\lu 5, . 2007, and evidences the agreement ofHSB
LAND, L.P., a California Iirnited partnership (the "Property Owner"), as the owner of certain
property within the boundaries of the City of San Bernardino Assessment District No. 1063 (the
"Landscaoe District''), which property is the subject of this Maintenance Agreement (the "ProDertv''),
as more fully described in Exhibit "A" attached hereto, and (ii) the City of San Bernardino, a
municipal corporation and charter city of the State of California (the "Citv").
TIlE PROPERTY OWNER AS THE OWNER OF TIlE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS:
Section 1.
OblilZations ofPronertv Owner.
(a) This Maintenance Agreement is entered into by the parties pursuant to the provisions
of City of San Bemardino Municipal Code Chapter 12.90 ("Municipal Code Chanter 12.90"), and
other applicable law, including without limitation, Streets and Highways Code Section 22500, et
sea., for the purpose of providing for the private maintenance and operation of certain landscaping
within agreed upon areas of the Landscape District. Exhibit "B" as attached hereto reflects the
boundaries of the Landscape District and describes the areas thereof that are the subject of this
Maintenance Agreement which are intended to be maintained by the Property Owner (the "ProDertv
Owner Maintenance Areas"). The Landscape District includes no property other than the Property.
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2007-444
(b) To the extent that the Property Owner complies with the requirements of this
Maintenance Agreement, including the maintenance standards as set forth in Exhibit "c" as attached
hereto, the Landscape District 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. The
City agrees to forebear the collection of such assessments for the Property Owner Maintenance Areas
during the period of time that the Property Owner complies with the provisions of this Maintenance
Agreement. Notwithstanding the foregoing, the City shall not forbear the collection of the first year
assessments for Assessment District No. 1063, and the Property Owner shall pay the City the first
year assessments for Assessment District No. 1063, which the City shall collect and hold in reserve
until such time as this Maintenance Agreement is terminated, at which time the City may apply such
reserve to the costs of Assessment District No.1 063. Upon a default by the Property Owner of any
material obligation incurred pursuant to this Maintenance Agreement and termination of this
Maintenance Agreement by the City, the City shall consider the Property Owner Maintenance Areas
to be treated the same as any other property within the other landscape maintenance assessment
districts in the City for which an annual assessment is collected by the City to pay for the landscape
maintenance services performed by the City. Such assessment amount (to be reflected on the annual
property tax bill) 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 under this
Maintenance Agreement for the annual maintenance of the landscaping and administration and
collection of assessments related to the Landscape District during the fiscal year in which the default
occurs and in each subsequent fiscal year of the City thereafter. Such assessments (net of the 10%
general benefit portion to be paid by the City) shall be allocated to the Property Owner as set forth
in the Engineer's Report referenced in Section l(c) below, including the allocation of the
assessments solely between the two commercial parcels referenced in the Engineer's Report that will
be created by Parcel Map No. 17721 (parcell and Parcel 2), when and if such Parcel Map is
approved by the City and recorded.
(c) The City Engineer or hislher designee, has prepared the Engineer's Report for
Assessment District No. 1063 dated June 1, 2007, on file with the City Clerk as File No. 14.40-159
(the "Ensrineers' ReDort").
(d) Beginning with the second year assessments and during the remaining term of this
Maintenance Agreement, the City shall not forbear the collection of, and Property Owner shal1 pay
the City the annual assessments of Assessment District No. 1063 attributable to the costs of Weekly
Inspections, Annual Assessment Engineering, and Outside Department Services (collectively the
"Administrative Costs"), which are described in the Engineer's Report and the formation documents
for the Landscape District.
Section 2.
LandscaDe 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 Property Owner
Maintenance Areas situated within the Landscape District.
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2007-444
(b) At such time as this Maintenance Agreement no longer is in full force and effect, the
special assessments as may thereafter be collected by the City each fiscal year shall be the costs
incurred by the City for the following:
(ii)
Section 3.
(i)
the maintenance and servicing by the City of any landscaping and sand
filtration units within the Property Owner Maintenance Areas. As used
herein, the words "maintenance and servicing" mean and refer to the
furnishing of services and materials for the ordinary and usual maintenance
of the landscaping and sand filtration units, 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, including appurtenant contract administration, inspection
and incidentals thereto, and including the maintenance standards for the sand
filtration units, all as more extensively set forth in Exhibit "C" attached
hereto and incorporated by this reference as if set forth fully herein; and
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 this
Maintenance Agreement.
Termination Riszht bv City Engineer.
(a) City Engineer shall mean the City Engineer, or his/her designee.
(b) In accordance with Section 3 (b) herein, the City sha11 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 (b) above and/or Exhibit "C" within
the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior
written notice from the City Engineer, or his/her designee, 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 (if such termination is first approved
by the Major and Common Council as hereinafter provided) 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 (as provided in Section 4(b) herein). The City (if such
termination is first approved by the Major and Common Council as hereinafter provided) 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 l(b) 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
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2007-444
diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Any tennination
of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and
Common Council at a duly held and noticed public meeting, wherein the Mayor and Common
Council shall be presented with the facts and circumstances of any alleged default together with any
recommendations for the termination of this Maintenance Agreement. It shall be sufficient for
purposes hereof that the action of the Mayor and Common Council shall be to declare a default
hereunder by the Property Owner, and upon the expiration of the applicable notice period without
an adequate cure having been completed, no further official action shall be required by the Mayor
and Common Council for such termination to be effective. Upon the termination of this
Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion
of the Landscape District 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 as provided in this Maintenance Agreement.
(c) The sole right of the Property Owner to contest any determination by the City for the
termination of this Maintenance Agreement shall be to appear before the Mayor and Common
Council at the public meeting at such time it is proposed for the Mayor and Common Council to take
official action with respect to such termination. The Property Owner agrees not to file any court
action or to seek any judicial relief from any such determination of the City to terminate this
Maintenance Agreement or for any interpretation of this Maintenance Agreement.
(d) Unless waived by the City Engineer at his sole discretion, the Property Owner shall
only be permitted to have two defaults determined by the Mayor and Common Council pursuant 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 (if such termination is first approved by the Mayor and Common
Council as provided above), 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.
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2007-444
Section 4.
Notices and Communications.
(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:
c/o Hillwood Development Company, LLC
268 West Hospitality Lane, Suite 105
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 calendar days after it
is placed in the United States Mail or personal delivery as heretofore provided.
Section 5. AcceDtance 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 Section 2 of this Maintenance
Agreement, 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 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 6. Term of Al!reement. This Maintenance Agreement shall remain in full force
and effect for a term of30 years and shall terminate, unless terminated sooner as permitted in this
Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph
hereof.
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2007-444
Section 7. First Year's Assessment. The 2008/2009 assessment to the Property Owner
by the City pursuant to the Landscape District shall be limited to the amounts shown on Table 1 of
the Engineer's Report.
Section 8. City Confirmation. 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 9. 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 10. Entire Al!reement. 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 11. 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 12. GoverninlZ 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 13. 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
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2007-444
or omissions of Property Owner, its employees, agents or subcontractors in the performance of this
Maintenance Agreement.
Section 14. Insurance
(a) Minimum SCODe and Limits of Insurance. Property Owner shall obtain and maintain
during the life of this Agreement all of the following insurance coverages:
(i) Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractuailiability, personal injury with a policy limit of not less than One
Million Dollars ($1,000,000.00), combined single limits, per occurrence and
aggregate.
(ii) Automobile liability for owned vehicles, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1,000,000.00), combined
single limits, per occurrence and aggregate.
(iii) Workers' compensation insurance as required by the State of California.
(b) Endorsements. The comprehensive general liability insurance policy shall contain
or be endorsed to contain the following provisions:
(i) Additional insured: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insured with
respect to Property Owner's performance under this Agreement with City."
(ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to City."
(iii) Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance provided
by this policy."
(c) Certificates of Insurance. Property Owner shall provide to City certificates of
insurance showing the insurance coverages and required endorsements described above, in a form
and content approved by City, prior to performing any services under this Agreement.
(d) Non-limiting. Nothing in this Section shall be construed as limiting in any way, any
indemnification provision contained in this Agreement, or the extent to which Property Owner may
be held responsible for payments of damages to persons or property.
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2007-444
Section 15. No Third Party Beneficiary Ril!hts. 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. Headim!:s. 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. 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. 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.
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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
sixty (60) days following the execution of this Maintenance Agreement.
[Signatures Follow On Next Page]
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2007-444
AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE 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.
HSB LAND, L.P.,
a California limited partnership
By:
By: Hillwood Operating, L.P"
a Texas limited partnership, its general
partner
SEAL
By: Hillwood Development Company, LLC,
a Texas limited liability company,
its general partner
ATTEST:
~--.J~~ At. C(,~
RACH CLARK, City Clerk
Approved as to Form:
10
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
~ ~ - "" - A""--- - -~
_.~-_._,.,.."" -~
State of California
}
County of San Bernardino
On Nov. 7. 2007
Date
before me, Julie M. Frazier-Mathews. Notary Public,
Name and Title of Offtcer (e.g., ~Jane Doe, Notary Public")
personally appeared
Fred Wilson
Name(s) of Signer(s)
lX personally known to me
o (or proved to me on the basis of satisfactory evidence)
to be the person~ whose namellO islaF&subscribed to the
within instrument and acknowledged to me that
he/sRe/1I ,(., executed the same in hiG.4l9~~Reir authorized
capacity(~), and that by hi~er:1I 'v;, signature()ll on the
instrument the personoo. or the entity upon behalf of
which the person(~ acted, executed the instrument.
WITNESS my hand and official seal.
Place Notary Seal Above
Signature~. ~'m~
Signature of Not ublic
OPTIONAL
Though the information be/ow is not required by law; it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
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'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:
RIGHTTHur,lOPRINT
or SIGNER
RIGHTTHUrl1BPf1INT
OF SIGNER
Top of thumb here
Signer Is Representing:
Signer Is Representing:
""' ""'......... ...
C 2006 National Notary Association . 9350 De Seta Ave., P.O. Box 2402. Chatsworth, CA 91313-2402 Item No. 5907 v609 Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
State of California )
) SS.
County of San Bernardino )
On November 15, 2007, before me, Theresa Wright, Notary Public, personally appeared John M. Mal!Dess,
~ personally known to me
o
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. c:_..:. 1743336
i Nataly NIlIc . CUlomla I
~ _ Ion 1emal.cllllO C:ounly -
1_ _ _ _ _ _~~..=.!:I ~ ~~~_1 ~I
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 of Notary P lie
************************ 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 (Central & Lena)
Document Date: November 5, 2007
Number of Pages:
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
'D Guardian or Conservator
o Other:
Top of thumb here
Signer is Representing:
Consent of Lender
WELLS FARGO BANK, NATIONAL ASSOCIATION ("Agent"), hereby consents to and
subordinates that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security
Agreement and Fixture Filing dated July 20, 2005, and recorded on August 2, 2005 as Document
No.2005-0558862, as modified by document recorded on January 31,2006 as Document No. 2006-
0069269 in the Official Records of San Bernardino County, California, to this Maintenance
Agreement.
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
agent for and on behalf of Wells Fargo Bank, National
Association and any and all other financial institutions
identified in an Intercreditor Agreement executed by Agent
,",~h~ . J
By: \tI1 JJ 'j-
J.~ard
Senior Vice President
WELLS FARGO BANK,
NATION~ ASSOCIATION 9--.
By' ~-
-
. .
1. nt Howard
Senior Vice President
STATE OF TEXAS
{)
{)
{)
ss.
COUNTY OF DALLAS
This instrument was ACKNOWLEDGED before me on "v17JlOtt<. I:J.... ,2007, by J. Kent
Howard, the Senior Vice President of Wells Fargo Bank, National Association, a national banking
association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank,
National Association and any and all other financial institutions (collectively, "Lenders") identified
in an Intercreditor Agreement executed by Agent and such Lenders.
'CHEF E!.AM.eAmE
"r"",SSION EXPIRES
: '-~:rooer 28, 2007
~t(:)t~r ~Mtt:I
Notlpi)' Public, State of Texas
Kelfa lla/ll- ~1I7flE
Printed Name of Notary Public
My Commission Expires:
Oc..'ibIOfA., ~J ,;)007
.
e
RENEE EJ.AM.IlAmE
MY COMMISSION EXPIRES'
Ooilber 29, 'JI1f1
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2007-444
EXHIBIT "A"
PROPERTY DESCRIPTION
(See Attached)
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2007-444
SHEET 1 OF 3
EXHIBIT "A II
LEGAL DESCRIPTION
THE PROPERTY
LOTS 10 THROUGH 20 INCLUSIVE, AND A PORTION OF LOT 9 OF TRACT NO. 2228,
VALLEY TRUCK FARMS NO.4, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE
95 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TOGETHER WITH PORTIONS OF LOTS 1 THROUGH 11 INCLUSIVE, OF TRACT NO.
2980, PETER HELD'S SUBDIVISION, AS PER MAP RECORDED IN BOOK 40, PAGE 50
OF MAPS, AND PORTIONS OF LOTS 11 AND 12, BLOCK 12 OF THE SAN BERNARDINO
RANCHO, AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, BOTH IN THE
OFFICE OF SAID COUNTY RECORDER, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE CENTERLINE OF CENTRAL AVENUE, DISTANT
THEREON NORTH 89" 43' 27" EAST, 109.12 FEET FROM THE CENTERLINE OF VALLEY
VIEW AVENUE, AS SHOWN ON SAID TRACT NO. 2980; THENCE SOUTH 000 28' 38"
WEST, 30.33 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE
WESTERLY AND HAVING A RADIUS OF 900.00 FEET; THENCE SOUTHERLY ALONG
SAID CURVE, THROUGH A CENTRAL ANGLE OF oo 52' 12" AN ARC LENGTH OF 13.67
FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 OF GRANT OF
EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 22, 1964
IN BOOK 6256, PAGE 928, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY
RECORDER, SAID SOUTHERLY LINE BEING PARALLEL WITH AND 44.00 FEET
SOUTHERLY OF SAID CENTERLINE OF CENTRAL AVENUE; THENCE ALONG SAID
SOUTHERL Y LINE, NORTH 89" 43' 27" EAST, 68.12 FEET TO THE TRUE POINT OF
BEGINNING;
THENCE SOUTH 45" 57' 37" WEST, 34.17 FEET TO THE BEGINNING OF A NON-
TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 944.00 FEET
AND BEING CONCENTRIC WITH SAID 900.00 FEET RADIUS CURVE, A RADIAL LINE TO
SAID BEGINNING OF CURVE BEARS SOUTH 88" 12' 13" EAST; THENCE SOUTHERL Y
ALONG SAID NON- TANGENT CURVE, THROUGH A CENTRAL ANGLE OF 1oo 55' 04" AN
ARC LENGTH OF 179.88 FEET; THENCE SOUTH 12" 42' 51" WEST, 96.41 FEET;
THENCE SOUTH 45" 17' 09" EAST, 5.31 FEET; THENCE SOUTH 12" 42' 51" WEST, 26.51
FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND
HAVING A RADIUS OF 851.50 FEET; THENCE SOUTHERL Y ALONG LAST SAID CURVE,
THROUGH A CENTRAL ANGLE OF 1" 57' 46" AN ARC LENGTH OF 29.17 FEET; THENCE
SOUTH 68" 45' 05" WEST, 5.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE,
CONCAVE EASTERLY AND HAVING A RADIUS OF 856.00 FEET, A RADIAL LINE TO
SAID BEGINNING OF CURVE BEARS NORTH 79" 26' 12" EAST; THENCE SOUTHERL Y
ALONG SAID 856.00 RADIUS CURVE, THROUGH A CENTRAL ANGLE OF 11" 02' 04" AN
ARC LENGTH OF 164.85 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 00028'16"
EAST, 86.26 FEET; THENCE SOUTH 58" 28'16" EAST, 5.31 FEET; THENCE SOUTH 000
28' 16" EAST, 55.48 FEET; THENCE SOUTH 57" 31' 44" WEST, 5.31 FEET; THENCE
SOUTH DO" 28' 16" EAST, 325.93 FEET; THENCE SOUTH 5" 28' 16" EAST, 5.71 FEET,'
THENCE SOUTH OOO 28'16" EAST, 57.70 FEET; THENCE SOUTH 51" 31' 44" WEST, 5.71
FEET; THENCE SOUTH 000 28' 16" EAST, 33.05 FEET TO THE SOUTHERLY LINE OF
SAID LOT 11 OF TRACT NO. 2980; THENCE ALONG SAID SOUTHERL Y LINE OF SAID
LOT 11 OF TRACT NO. 2980 AND THE SOUTHERLY LINE OF SAID LOT 11, BLOCK 55
OF RANCHO SAN BERNARDINO, NORTH 89" 50' 45" EAST, 829.87 FEET TO THE
NORTHWEST CORNER OF SAID LOT 20; THENCE ALONG THE BOUNDARY OF SAID
LOTS 10 THROUGH 20 OF TRACT NO. 2228, SOUTH DO" 36'15" EAST, 505.43 FEET,
2007-444
SHEET.2 OF 3
EXHIBIT "A II
LEGAL I>ESCRIPnON
THE PROPERTY
NORTH 89" 53' 27" EAST, 78.13 FEET, NORTH 86" 44' 54" EAST, 1022.61 FEET AND
NORTH 00" 33' 48" WEST, 50.06 FEET TO A LINE PARALLEL WITH AND 50.00 FEET
NORTHERL Y, MEASURED AT RIGHT ANGLES, FROM THE MOST SOUTHERLY LINE OF
SAID LOT 9; THENCE ALONG SAID PARALLEL LINE AND ITS EASTERLY
PROLONGA TION, NORTH 86" 44' 54" EAST, 39.89 FEET TO THE WESTERL Y LINE OF
CLEVENGER DRIVE (60.00 FEET WIDE) AS PRESENTLY EXISTS AT THE DATE OF
RECORDA TION OF THIS DOCUMENT; THENCE ALONG SAID WESTERLY LINE THE
FOLLOWING TWO (2) COURSES: 1) NORTH 000 32' 19" WEST, 35.14 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS
OF 970.00 FEET; 2) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE
OF 000 52' 08" AN ARC LENGTH OF 14.71 FEET; THENCE NORTH 36" 47' 07" WEST,
7.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY
AND HAVING A RADIUS OF 965.50 FEET AND BEING CONCENTRIC WITH SAID 970.00
FEET RADIUS CURVE, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH
880 12' 53" EAST; THENCE NORTHERL Y ALONG SAID 965.50 FEET CURVE, THROUGH
A CENTRAL ANGLE OF 40 22' 54" AN ARC LENGTH OF 73.83 FEET; THENCE NORTH
26" 49' 59" EAST, 7.81 FEET TO SAID WESTERLY LINE, BEING THE BEGINNING OF A
NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00
FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS, NORTH 83" 27' 19"
EAST; THENCE ALONG SAID WESTERLY LINE THE FOLLOWING FOUR (4) COURSES:
1) NORTHERLY ALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 1002'
12" AN ARC LENGTH OF 17.65 FEET; 2) TANGENT TO SAID CURVE, NORTH 07" 34' 53"
WEST, 79.60 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERL Y
AND HAVING A RADIUS OF 1030.00 FEET; 3) NORTHERLY ALONG SAID CURVE,
THROUGH A CENTRAL ANGLE OF 6" 51' 20" AN ARC LENGTH OF 123.24 FEET; 4)
NORTH 00" 43' 33" WEST, 42.20 FEET TO THE INTERSECTION OF A LINE PARALLEL
WITH AND 30.00 FEET WESTERLY, MEASURED AT RIGHT ANGLES, FROM THE
WESTERL Y LINE OF LOT 13, BLOCK 55 OF SAID RANCHO SAN BERNARDINO, AS
SHOWN ON TRACT NO. 2896, AS PER MAP RECORDED IN BOOK 40, PAGES 47 AND
48 OF MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID
PARALLEL LINE OF LOT 13, NORTH 00" 32' 15" WEST, 111.58 FEET; THENCE NORTH
45012' 29" WEST, 6.40 FEET; THENCE NORTH 00" 32'15" WEST, 60.66 FEET; THENCE
NORTH 440 07' 59" EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE
ALONG SAID PARALLEL LINE OF LOT 13, THENCE, NORTH 00" 32' 15" WEST, 355.24
FEET; THENCE NORTH 45" 12' 29" WEST, 6.40 FEET; THENCE NORTH 00" 32' 15"
WEST, 60.67 FEET; THENCE NORTH 440 07' 59" EAST, 6.40 FEET TO SAID PARALLEL
LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 00" 32' 15"
WEST, 245.13 FEET TO THE SOUTH LINE OF THE NORTH 246.00 FEET OF SAID LOT
12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID SOUTH LINE,
SOUTH 89" 43' 27" WEST, 90.00 FEET TO THE WEST LINE OF THE EAST 120.00 FEET
OF SAID LOT 12, BLOCK 65 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID
WEST LINE, NORTH 00" 32' 15" WEST, 60.00 FEET TO THE SOUTH LINE OF THE
NORTH 186.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO,
THENCE ALONG SAID SOUTH LINE OF THE NORTH 186.00 FEET, NORTH 89" 43' 27"
EAST, 90.00 FEET TO SAID PARALLEL LINE OF LOT 13, ALSO BEING THE WESTERL Y
LINE OF PARCEL NO. 2 OF GRANT OF EASEMENT TO THE COUNTY OF SAN
BERNARDINO, RECORDED OCTOBER 30, 1964 IN BOOK 6262, PAGE 458. OF
OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG
THE BOUNDARY OF LAST SAID GRANT OF EASEMENT THE FOLLOWING TWO (2)
. .
2007-444
SHEET 3 OF 3
EXHIBIT "A II
LEGAL DESCRIPTION
THE PROPERTY
COURSES: 1) NORTH 00" 32' 15" WEST. 163.34 FEET TO THE BEGINNING OF A
TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 20.00
FEET; 2) NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF
89044' 18" AN ARC LENGTH OF 31.32 FEET TO THE SOUTH LINE OF PARCEL NO.1 OF
LAST SAID GRANT OF EASEMENT; THENCE TANGENT TO SAID CURVE ALONG SAID
SOUTH LINE OF PARCEL NO. 1 AND ITS WESTERLY PROLONGA TION, SOUTH 89" 43'
27" WEST, 318.42 FEET; THENCE SOUTH 4? 43' 27" WEST. 6.15 FEET; THENCE
SOUTH 890 43' 27" WEST. 49.97 FEET; THENCE NORTH 43" 16' 33" WEST, 6.15 FEET
TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY
PROLONGATION, SOUTH 89" 43' 27" WEST, 584.04 FEET; THENCE SOUTH 5? 13' 27"
WEST. 7.39 FEET; THENCE SOUTH 89" 43' 27" WEST, 71.45 FEET; THENCE NORTH 5?
46' 33" WEST, 7.39 FEET TO SAID WESTERL Y PROLONGA nON; THENCE ALONG SAID
WESTERL Y PROLONGA TION, SOUTH 89" 43' 27" WEST. 148.42 FEET; THENCE SOUTH
5? 13' 27" WEST, 7.39 FEET; THENCE SOUTH 890 43' 27" WEST, 80.74 FEET; THENCE
NORTH 5? 46' 33" WEST, 7.39 FEET TO SAID WESTERLY PROLONGA TlON; THENCE
ALONG SAID WESTERLY PROLONGATION, SOUTH 89" 43' 27" WEST. 238.86 FEET;
THENCE SOUTH 4? 43' 27" WEST, 6.15 FEET; THENCE SOUTH 89" 43' 27" WEST. 49.97
FEET; THENCE NORTH 43" 16' 33" WEST, 6.15 FEET TO SAID WESTERLY
PROLONGA TlON; THENCE ALONG SAID WESTERLY PROLONGA TION, SOUTH 890 43'
27" WEST, 261.45 FEET TO THE TRUE POINT OF BEGINNING.
.
CONTAINING: 2,634.738 SQUARE FEET OR 60.485 ACRES MORE OR LESS.
EXHIBIT "B" A TTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF.
DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION.
9JI
J. D. ELLZE~
P.L.S. No. 2767
REG. EXP. 06/30108
I~-'I'Z - 01
DA TE: I
N:2557\ESMT\2557 LMD.cIoc
Last Update: 10112AJ7
2007-444
THE PROPERTY
T1
T2
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SHEET 1 OF 2
p.a.c.
SCALE: 1"=300'
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SEE SHEET 2 OF 2 FOR
CURVE AND TANGeNT TABLES.
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ROAD ~
C9
TRACT NO. 2228. VALLEY TRUCK FARMS
AREA:
CONTAINS: 2.634.738 SQ, n: z
60.485 ACRES z
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NORMAN
T30
T28
T26
C6
T25
SlIRVEYOR:
T!li;"' -:;:
P.LS. NO. 2767
ReG, eXPo JUNe 30, 2008
2007-444
EXHIBIT wA--1w
THE PROPERTY
TANGENT TABLE:
NUU~ER DISTANCE
T1 109.12'
T2 30.33'
T3 68.12'
T4 34.17'
T5 944.00'
T6 96.41'
T7 5.31'
T8 26.51'
T9 851.SO'
TTO 5.30'
TT1 856.00'
TT2 86.26'
TT3 5.31'
TT4 55.48'
TT5 5.31'
TT6 325.93'
TT7 5.71'
TT8 57.70'
TT9 5.71'
T20 33-05'
T21 505.43'
T22 78.13'
T23 50.06'
T24 39.89'
T25 35.14'
T26 7.81'
T27 965.50'
T28 7.81'
T29 970.00'
T30 79.60'
T31 42.20'
TJ2 111.58'
T33 6.40'
TJ4 60.66'
loat Updole: 10/12/07
N:\2!l&?\ESUI\2557 _LMD.d"'l
BEARING
N 89'4.]'2r E
N 00"28'.18" W
N 89'43'2r E
N 45'57'3r E
N 88'12'13" W
N 12"42'51" E
N 45'17'09" W
N /2"42'51" E
N 7717'09" W
N 68"45'05" E
N 79'26'12" W
N 00"28'16" W
N 58"28'16" W
N 00'28'16- W
N 57"31'44" E
N 00'28'16" W
N 52'28'16- W
N 00'28'16" W
N 51"31'44" E
N 00'28'16" W
N 00'36'15- W
N 89'53'2r E
N OO'3J'48"W
N 86"44'54" E
N 00'32'19- W
N 36'47'Or W
N 88"12'5.1" E
N 2/1'49'59" E
N 8.J'27'19- E
N 07"34'53" W
N 00'43'33" W
NOO'32'15- W
N 45'12'29" W
N 00'32'15" W
SHEET 2 OF 2
TANGENT TABLE:
NUMBER OISTANCE
TJ5 6.40'
T36 355.24'
T37 6.40'
T38 60.67'
T39 6.40'
T40 245.13'
T41 90.00'
T42 60.00'
T43 90.00'
T44 163.34'
T45 318.42'
T46 6.15'
T47 49.97'
T48 6.15'
T49 564.04'
T50 7.39'
T51 71.45'
T52 7.39'
T53 148.42'
T54 7.39'
T55 80.74'
T56 7.39'
T57 2.18.86'
T58 6.15'
T59 49.97'
T60 6.15'
T61 261.45'
BEARING
N 44'07'59" E
N 00"32'15- W
N 45'12'29" W
N 00'32'.15" W
N 44'07'59" E
N 00'32'15" W
N 89'43'2r E
N 00'32'15" W
N 89'43'2r E
N 00'32'15- W
N 89'43'27" E
N 42"43'2r E
N 89'43'2r E
N 4.J'16'JJ- W
N 89'43'27" E
N 52'13'27" E
N 89'43'27" E
N 52'46'JJ" W
N 89'43'27" E
N 52"13'27" E
N 89'43'2r E
N 52'46'33- W
N 89'43'27" E
N 42'43'27" E
N 89'43'27" E
N4.1'16'33" W
N 89'43'27" E
CURVE TABLE:
NUMBER OELTA RAOIUS LENGTH
C1 0'52'12" 900.00' 13.67'
C2 13'" '29" 900.00 ' 207.21 '
C3 10'55'04" 944.00' 179.88'
C4 1'57'46- 851:50' 29.17'
C5 11'02'04 " 856.00' 164.85'
C6 0'52'08" 970.00' 14.71'
C7 4'22'54" 965.50' 73.83'
C8 1"02'.12" 970.00' 17.55'
C9 6'51 '20" 1030.00' 123.24'
C10 89'44 '18- 20.00' 31.32'
SURVEYOR:
/HZ.~7
DATE:
PREPAREO UNDER THE SUPERVISION OF:
~~5:1
P.L.S. NO. 2767
REG. EXP. JUNE 30, 2008
2007-444
EXHIBIT "B"
PROPERTY OWNER MAINTENANCE AREAS
The areas to be maintained will be landscaping and all appurtenances along portions of the easterly
side of Lena Road that abut the Property, the southerly side ofCentra1 Avenue that abut the Property,
the westerly side of Clevenger Road that abut the Property, and portions of the northerly side of
Norman Road that abut the Property, as further depicted on Exhibit B-1.
13
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EXHIBIT B-1
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2007-444
EXlllBIT "C"
PROPERTY OWNER MAINTENANCE STANDARDS AND
SAND FILTRATION UNIT MAINTENANCE STANDARDS
The Property Owner hereby agrees to maintain the landscaping and sand filtration unit improvements
located within the Property Owner Maintenance Areas identified in Exhibit "B" 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 Areas so long as this Maintenance
Agreement is in effect.
The Property Owner shall maintain the landscaping and sand filtration unit 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 sand filtration unit
maintenance within other City landscape 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,
as applicable, 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.
The following maintenance standards apply to the Sand Filtration Units located to the south of
Building One.
. The performance of the units shall be maintained as determined by the Water Quality
Management Plan (WQMP) prepared on November 30tb, 2006 by Thienes Engineering on
file with the Development Services Department.
. Dust control shall be mitigated using methods acceptable to the City Engineer.
. Records of all inspections, maintenance and repairs are to be available upon request.
. Any modifications are subject to City of San Bernardino approval. The City of San
Bernardino Public Works Division shall be notified within 72 hours about any emergency
replllrs.
. All maintenance will comply with Landscape Maintenance District and WQMP
requirements.
IS