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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Valerie C. Ross, Director Subject: Public hearing — 4:00 p.m.,
Resolution authorizing the execution of an
Dept: Development Services Agreement, and Resolution Ordering Work
relative to proposed Cajon Boulevard and Glen
Date: May 5, 2008 Helen Parkway Area Landscape Maintenance
Assessment District No. 1064.
File No. 14.40-161 MCC Date: June 2 2008
Synopsis of Previous Council Action:
04/07/2008 —Authorization was given to proceed with the formation of the Cajon Boulevard
and Glen Helen Parkway Area Landscape Maintenance Assessment Districts No.
1064, and Resolution of Intention No. 2008-90 was adopted.
Recommended Motion:
1. That the public hearing relative to the formation of the Cajon Boulevard and Glen Helen
Parkway Area Landscape Maintenance Assessment Districts No. 1064 be closed.
AND
2. Adopt resolutions (2) - (4/5 vote required for formation of LMD).
Valerie C. Ross
Contact person: Ryan Sandoval Phone: 5226
Supporting data attached: Staff Report, Maps, Reso. Ward: 6
FUNDING REQUIREMENTS: Amount: $20.236.92(Estimated annual General Benefit amount
Source: (Acct. No.) N/A
(Acct. Description) N/A
Finance:
Council Notes: 4=SO s 2oo&-178 ,o 2 oo e-- 1 7-?
Agenda Item No. 3�D
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CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Staff Report
SUBJECT:
Public hearing — 4:00 p.m., Resolution authorizing the execution of an Agreement, and
Resolution Ordering Work relative to proposed Cajon Boulevard and Glen Helen Parkway Area
Landscape Maintenance Assessment District No. 1064.
BACKGROUND:
On December 14, 2006, the D/ERC approved Development Permit Type 2 No. 06-23, generally
located southerly of Cajon Boulevard and easterly of Glen Helen Parkway. On March 29, 2007,
Hillwood Investment Properties, the developer/owner of this property, submitted a petition for
the formation of a landscape maintenance assessment district, as required by the conditions of
approval for the development of this site. The formation of this District will assess the special
benefit costs of maintaining the landscaping and appurtenances to the owners of the properties
benefiting from the maintenance area. The areas to be maintained by the District will be
landscaping along portions of the southerly side of Cajon Boulevard adjacent to this site.
Currently, the boundary of the district contains a total of 2 parcels of land, but due to the County
Assessors tax rate line splitting a parcel, it made 3 assessor parcel numbers, therefore the annual
cost of maintenance and incidentals will be spread across these 3 parcel numbers. Part of the
formation proceedings includes the preparation of an Engineer's Report, which details the costs
necessary to carry out the ongoing maintenance of landscaping, which is filed in the City Clerk's
office. As required by law, only special benefits may be assessed to properties within an
assessment district. Any benefit found to be a general benefit may not be assessed to the District.
As set forth in the Engineer's Report,the landscaping along Cajon Boulevard has been deemed to
be of a general benefit. The general benefit portion of the annual cost of maintenance is
estimated to be $20,236.92 and cannot be assessed to the District. This amount will need to be
paid from the general fund or other non-district fund source. As set forth in the Engineer's
Report, the estimated total annual assessment, including all incidental expenses, is $121,553.28.
Assessment units on commercial land are assigned to each parcel based on the number of 7,200
square foot single family lots that could be developed on the site if it were developed for
residential use and gives a basis for calculating the assessment spread. In essence, each parcel is
assessed in proportion of its size to the other parcels within the district. The Engineer's Report
allows for annual increases of CPI (Consumer Price Index) or 5%, whichever is less, to cover
increases in maintenance costs. Increases over this amount will either need to be approved by the
property owners within the District, or be paid for by the City.
The developer/owner has requested this Landscape Maintenance Assessment District to be a
"default" district, where the property owner will be maintaining the landscaping. The
Assessment District will assume maintenance of the landscaping in the event of default of the
maintenance by the owner. However, the City will collect the first year's maintenance cost,
which will be held in reserve in the event that the City has to assume the maintenance. A
Staff Report— continued
resolution approving the execution of the Maintenance Agreement has been prepared and is
attached for your action.
On April 7, 2008, Resolution of Intention No. 2008-90 was adopted, setting a public hearing for
June 2, 2008, and preliminarily approving the Engineer's Report. Notice of the hearing and
assessment ballots were mailed to the owner of record. Since the developer still owns all of the
parcels, a majority protest is not anticipated. Future property owners will purchase the parcels
subject to the Assessment District and will be given disclosure of the District and assessments by
the developer or subsequent property owners, as required by law.
At the conclusion of the hearing, the results of the assessment ballots returned will be submitted.
Ballots are weighted in proportion to the assessment amount. The formation of the district
requires that the ballots returned in support for the proposed district exceed the ballots returned
in opposition to the proposed district. A majority opposition to the formation of the district is not
anticipated. All future buyers will be given a disclosure notice by the developer, advising them
of the existence of an assessment district and the proposed annual cost.
The Maintenance Agreement will need to be considered prior to the adoption of the resolution
creating the Assessment District, which will require a four-fifths (4/5) affirmative vote of the
council members voting thereon.
FINANCIAL IMPACT:
The applicant has paid the $5,900 processing fee. Since this is a "default" district, the estimated
costs of annual maintenance in the amount of$121,553.28, deemed to be a special benefit, will
be assessed back to property owners within the Assessment District, and the estimated annual
cost of maintenance in the amount of$20,236.92, deemed to be a general benefit, will need to be
paid from the general fund, in the event the property owners default and the city assumes the
maintenance. The actual general benefit amount will be determined and a source will need to be
identified in the event the City does assume maintenance sometime in the future.
RECOMMENDATION:
Staff recommends that the public hearing be closed and the attached resolutions be adopted.
ATTACHMENTS:
Vicinity Map
Diagram Map
r, LOCATION OF
PROPOSED ASSESSMENT
DISTRICT NO. 1064
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VICINITY MAP
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CITY OF SAN BERNARDINO Proposed Landscape Maintenance
DEVELOPMENT SERVICES DEPARTMENT Assessment District No. 1064 —
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C (OPY
RESOLUTION NO.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A
4 LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE
PROPOSED ASSESSMENT DISTRICT NO. 1064 (CAJON BOULEVARD AND GLEN
5 HELEN PARKWAY AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT).
6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
7 OF SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and
9 directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, the form
10 of which is attached hereto as Exhibit"1"and made part hereof, relative to proposed Assessment
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12 District No. 1064, known as the Cajon Boulevard and Glen Helen Parkway Area Landscape
13 Assessment District, as set forth in the Engineer's Report for said Assessment District, on file in
14 the office of the City Clerk.
15 SECTION 2. Authorization to execute the Landscape Maintenance Services Agreement
16 is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution.
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05/05/08
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
1 AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE
SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1064
I -- 2 (CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA LANDSCAPE MAINTENANCE
ASSESSMENT DISTRICT).
3
4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof
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7 held on the day f
Y , 20 , by the following vote, to wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
I9 ESTRADA
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BAXTER
11
12 BRINKER
13 DERRY
14 KELLEY
15 JOHNSON
16
17 MCCAMMACK
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19 City Clerk
20 The foregoing resolution is hereby approved this day of , 20
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23 PATRICK J. MORRIS, Mayor
24 City of San Bernardino
25 Approved as to Form:
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27 By: a .�--
28 J ES F. PENMAN, City Attorney
05/20/08 2
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
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AGREEMENT OF PROPERTY OWNERS
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
(Cajon Boulevard and Glen Helen Parkway Area)
THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY
- OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY
IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance
Agreement") is dated as of , 2008, and evidences the agreement of LIT
INDUSTRIAL LIMITED PARTNERSHIP, a Delaware limited partnership (owner of Parcel 1 as
described in Exhibit "A") and NORTH SAN BERNARDINO INDUSTRIAL PARK, L.P., a
California limited partnership (owner of Parcel 2 in as described in Exhibit"A") (collectively, the
"Property Owner"), as the owner of certain property within the boundaries of the City of San
Bernardino Assessment District No. 1064 (the "Landscape District"), which property is the subject
of this Maintenance Agreement (the "Pro e "), as more fully described in Exhibit "A" attached
hereto and incorporated herein, and (ii) the City of San Bernardino, a municipal corporation and
charter city of the State of California (the
THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS:
Section 1. Obligations of Property Owner.
(a) This Maintenance Agreement is entered into by the parties pursuant to the provisions
of City of San Bernardino Municipal Code Chapter 12.90 ("Municipal Code Chapter 12.90"), and
other applicable law, including without limitation, Streets and Highways Code Section 22500, et
seq., for the purpose of providing for the private maintenance and operation of certain landscaping
within agreed upon areas of the Landscape District. Exhibit "B" attached hereto and incorporated
herein, reflects the boundaries of the Landscape District and describes the areas thereof that are the
EXHIBIT 661"
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subject of this Maintenance Agreement which are intended to be maintained by the Property Owner
(the "Property Owner Maintenance Areas"). The Landscape District includes no property other than
the Property.
(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"attached
hereto and incorporated herein, 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. 1064, and the
Property Owner shall pay the City the first year assessments for Assessment District No. 1064,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.
1064. 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 pay or 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 thereafter. Such assessments (net of the 15% 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
1(c) below, including the allocation of the assessments solely between the two commercial parcels
referenced in the Engineer's Report, as well as a third parcel that will be created by Parcel Map No.
18979,when and if such Parcel Map is approved by the City and recorded. Parcel Map No. 18979,
if approved and recorded, will further subdivide Parcel 2 of LLA 07-03 into two separate parcels.
(c) The City Engineer or his/her designee, has prepared the Engineer's Report for
Assessment District No. 1064 dated November 26, 2007, on file with the City Clerk as File No.
14.40-161 (the "Engineers' Report").
(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 shall pay
the City the annual assessments of Assessment District No. 1064 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.
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Section 2. Landscape Maintenance.
(a) The Property Owner recognizes that the City has initiated and completed proceedings
to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below
for the maintenance and servicing of public landscaping improvements on the Property Owner
Maintenance Areas situated within the Landscape District.
(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:
(i) the maintenance and servicing by the City of any landscaping 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, 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, all as more extensively set forth in Exhibit "C"
attached hereto and incorporated by this reference as if set forth fully herein;
and
(ii) incidental costs associated with the maintenance and servicing described in
subparagraph (i), above, including the costs associated with (1) the
preparation of annual engineering reports, (2) the levy of the annual
assessments, and (3) the collection of the assessments as set forth in this
Maintenance Agreement.
Section 3. Termination Right by City En ineer.
(a) City Engineer shall mean the City Engineer, or his/her designee.
(b) In accordance with Section 3 (b)herein, the City shall have the right to terminate this
Maintenance Agreement in the event the Property Owner shall have failed to perform the
maintenance or the furnishing of services described in Section 1(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 furnish the 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
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have the right to terminate this Maintenance Agreement in the event the Property Owner shall have
failed to perform the maintenance or furnish the services described in Section 1(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
diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination
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
i 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.
(e) The Property is currently composed of two separate parcels (each, a "Parcel"). If a
Parcel is divided into one or more small subdivisions (each a "Lot") by Property Owner or any
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successor in interest,the obligations of this Agreement shall be apportioned among the owners (each
an"Owner")of each Lot in proportion to the area of each Lot. In the event of a default by an Owner
of one Lot or Parcel, including any obligations pursuant to Section 1(b) above, the rights and
remedies available to City including those set forth in this Agreement, may only be enforced against
that Owner or its interest in the Lot or Parcel upon which the default occurred.
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 North San Bernardino Industrial Park, L.P.,
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
and LIT Industrial Limited Partnership
c/o ING Clarion Partners
3141 Hood Street, Suite 700
Dallas, TX 75219
Attn: Stacey Magee
Fax: (214) 647-4901
(b) Such written notices, demands and communications may be sent in the same manner
to such other addresses as either party may from time to time designate as provided in this Section.
Any such notice, demand or communication shall be deemed to be received by the addressee,
regardless of whether or when any return receipt is received by the sender on the date set forth on
such return receipt, on the day that it is dispatched by messenger for immediate personal delivery,
the date sent by FAX and confirmed by First Class United States Mail or two calendar days after it
is placed in the United States Mail or personal delivery as heretofore provided.
(c) Either party may change its address for notice by giving written notice of such change
to the other party not less than ten days prior to the effective date of such address change. If a party
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has not provided an address for notice,any other party may deliver notice to such party at the address
shown as the address for the owner of the property in question in the county tax records.
Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its
successors and assigns hereby acknowledges and consents to the collection of any special
assessments as may hereafter be assessed by the City under 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 Agreement. This Maintenance Agreement shall remain in full force
and effect for a term of 30 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.
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 Agreement, Amendment and Termination. This Maintenance
Agreement constitutes the entire agreement between the parties with respect to any matter referenced
herein and supersedes any and all other prior writings and oral negotiations. The terms of this
Maintenance Agreement shall prevail over any inconsistent provision in any other contract document
appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance
Agreement may be amended or terminated only by written agreement, signed by the parties in
interest at the time of such amendment or termination, except as also provided in Section 3 regarding
termination.
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Section 11. Attorneys' Fees. In the event that litigation is brought by any party in
connection with this Maintenance Agreement,the prevailing party shall be entitled to recover from
the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any
of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney
and members of his office in connection with that action, shall be considered as"attorneys' fees"for
the purposes of this Maintenance Agreement.
Section 12. Governing Law. This Maintenance Agreement shall be governed by and
construed under the laws of the State of California without giving effect to that body of laws
pertaining to conflict of laws. In the event of any legal action to enforce or interpret this
Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court
of competent jurisdiction located in San Bernardino County, California.
Section 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 attorneys' fees, damage to property or
injuries to or death of any person or persons or damages of any nature including, but not limited to,
all civil claims or workers' compensation claims, arising out of or in any way connected with the
acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the
performance of this Maintenance Agreement.
Section 14. Insurance
(a) Minimum Scope 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
contractual liability, 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."
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(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.
Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered
into for the sole benefit of City and Property Owner and no other parties are intended to be direct or
incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in,
under or to this Maintenance Agreement.
Section 16. Headings. Paragraphs and subparagraph headings contained in this
Maintenance Agreement are included solely for convenience and are not intended to modify, explain
or to be a full or accurate description of the content thereof and shall not in any way affect the
meaning or interpretation of this Maintenance Agreement.
Section 17. Construction. The parties have participated jointly in the negotiation and
drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or
interpretation arises with respect to this Maintenance Agreement,this Maintenance Agreement shall
be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall
be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship
Iof any of the provisions of this Maintenance Agreement.
Section 18. Waiver. The delay or failure of any party at any time to require performance
i 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 with respect to any occurrence or event shall not be deemed a waiver of any right or
remedy with 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
8
- i
for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be
enforced to the extent permitted by law and the parties shall negotiate in good faith for such
amendments to this Maintenance Agreement as may be necessary to achieve its intent,
notwithstanding such invalidity or unenforceability.
Section 20. Counterparts. This Maintenance Agreement may be executed in one or more
counterparts,each of which shall be deemed an original. All counterparts shall be construed together
and shall constitute one agreement.
Section 21. Authority. The persons executing this Maintenance Agreement on behalf of
the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on
behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions
of this Maintenance Agreement.
Section 22. Covenant Running with the Land. The provisions of this Maintenance
Agreement shall run with the Property and any portion thereof or interest therein, and shall be
binding upon and inure to the benefit of all persons having or acquiring any interest in the Property
or any portion thereof, and their respective successive owners and assigns.
Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement
to be recorded with the Office of the County Recorder of San Bernardino County, California,within
thirty(30) days following the execution of this Maintenance Agreement.
[Signatures Follow On Next Page]
9
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.
CITY:
City of San Bernardino
By: EXHIBIT COPY
FRED WILSON, City Manager
SEAL
ATTEST:
E [ IT COPY
RACHEL CLARK, City Clerk
Approved as to Form:
EXHIBIT COPY
JAMES F. PENMAN, City Attorney
(signatures continued on the following page)
10
PARCEL 1 OWNER:
LIT INDUSTRIAL LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LIT Holdings GP, LLC, a Delaware limited liability company,
its sole general partner
By: Lion Industrial Properties, L.P., a Delaware limited partnership,
its sole member
By: LIT GP Sub, LLC, a Delaware limited liability company,
its sole general partner
By: Lion Industrial Trust, a Maryland real estate investment trust,
its sole member and manager
By: EXHIBIT COPY
Name:
Title:
STATE OF TEXAS §
§ ss.
COUNTY OF DALLAS §
On before me, (here insert name and title of the officer),
personally appeared , who 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/hr/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument, I certify under PENALTY OF PERJURY under the laws
of the State of Texas that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
(signatures continued on the following page)
11
PARCEL 2 OWNER:
NORTH SAN BERNARDINO INDUSTRIAL PARK, L.P.,
a California limited partnership
By: Hillwood Fund GP 1, LLC,
a Texas limited liability company,
its general partner
By: Hillwood Property Fund, L.P.,
a Delaware limited partnership,
its sole member
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company
its general partner
By: EXHIBIT COP'S'
John M. Magness
Senior Vice President
(Notary Acknowledgment Attached)
12
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 December 22, 2006 and recorded on January 3, 2007 as
Document No. 2007-3877 and the Deed of Trust with Absolute Assignment of Leases and Rents,
Security Agreement and Fixture Filing recorded on November 16, 2007 as Document No. 2007-
0636457 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
and such Lenders
By:
J. Kent Howard
Senior Vice President
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
J. Kent Howard
Senior Vice President
STATE OF TEXAS §
§ ss.
COUNTY OF DALLAS §
This instrument was ACKNOWLEDGED before me on , 2008, 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.
[SEAL]
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
13
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 April 11, 2008 and recorded on April 17, 2008 as Document No.
in the Official Records of San Bernardino County, California, to this Maintenance
Agreement.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
STATE OF TEXAS §
§ ss.
COUNTY OF DALLAS §
On before me, (here insert name and title of the officer),
personally appeared , who 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/hr/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument, I certify under PENALTY OF PERJURY under the laws
of the State of Texas that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
14
EXHIBIT "A"
PROPERTY DESCRIPTION
Real property in the City of San Bernardino, County of San Bernardino, State of California,
described as follows:
Parcels 1 and 2 of Certificate of Compliance recorded October 15, 2007 as Instrument No.
0579046 Official Records, more completely described as follows:
PARCEL 1:
PARCEL 1 AS SHOWN ON CERTIFICATE OF COMPLIANCE AS EVIDENCED BY
DOCUMENT RECORDED OCTOBER 15, 2007 AS INSTRUMENT NO. 2007-0579046 OF
OFFICIAL RECORDS AND MORE COMPLETELY DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 37 OF RANCHO MUSCUPIABE, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THAT CERTAIN COURSE IN THE SOUTHWESTERLY
LINE OF CAJON BOULEVARD, BEING A LINE PARALLEL WITH AND 70.00 FEET
SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF
SAID CAJON BOULEVARD, AS SHOWN ON MAP RECORDED IN BOOK 120, PAGES 7
THROUGH 14 INCLUSIVE OF RECORD OF SURVEYS, IN THE OFFICE OF SAID
COUNTY RECORDER, SHOWN AS HAVING A BEARING AND DISTANCE OF "NORTH
470 09' 11" WEST, 5490.88 FEET", DISTANT THEREON SOUTH 47° 09' 14" EAST
(ROTATED FROM 470 09' 11" FOR THE PURPOSE OF THIS LEGAL DESCRIPTION)
ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, 3559.86 FEET FROM
THE NORTHWESTERLY TERMINUS THEREOF;
THENCE SOUTH 420 52' 22" WEST, 1121.68 FEET TO THE NORTHEASTERLY RIGHT-
OF-WAY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD, AS SHOWN
ON SAID RECORD OF SURVEY;
THENCE ALONG SAID NORTHEASTERLY RIGHT-OF-WAY THE FOLLOWING THREE
(3) COURSES:
1)NORTH 26° 09' 38" WEST, 816.36 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 1960.88 FEET;
2)NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 250
23' 52" AN ARC LENGTH OF 869.21 FEET;
3) TANGENT TO SAID CURVE NORTH 51° 33' 29" WEST, 1526.71 FEET TO THE
15
EASTERLY LINE OF MAP OF DEVORE, AS PER MAP RECORDED IN BOOK 17, PAGES
79 AND 80 OF SAID MAPS, IN THE OFFICE OF SAID COUNTY RECORDER AS SHOWN
ON SAID RECORD OF SURVEY;
THENCE ALONG SAID EASTERLY LINE, NORTH 15° 40' 49" EAST, 924.01 FEET, MORE
OR LESS TO SAID NORTHWESTERLY TERMINUS OF SAID SOUTHWESTERLY LINE
OF CAJON BOULEVARD;
THENCE ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, SOUTH 47°
09' 14" EAST, 3559.86 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
PARCEL 2 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 15, 2007 AS
INSTRUMENT NO. 2007-0579046 OFFICIAL RECORDS, MORE COMPLETELY
DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF LOT 37 OF RANCHO MUSCUPIABE, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, AND LOTS "N", "O", "P", AND "Q", BLOCK 12, OF
RESUBDIVISION OF MEYER AND BARCLAY SUBDIVISION, AS PER MAP RECORDED
IN BOOK 12, PAGE 18 OF SAID MAPS, IN THE OFFICE OF SAID COUNTY RECORDER,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THAT CERTAIN COURSE IN THE SOUTHWESTERLY
LINE OF CAJON BOULEVARD, BEING A LINE PARALLEL WITH AND 70.00 FEET
SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF
SAID CAJON BOULEVARD, AS SHOWN ON MAP RECORDED IN BOOK 120, PAGE 7
THROUGH 14 INCLUSIVE OF RECORD OF SURVEYS, IN THE OFFICE OF SAID
COUNTY RECORDER, SHOWN AS HAVING A BEARING AND DISTANCE OF "NORTH
47°09'11" WEST, 5490.88 FEET", DISTANT THEREON SOUTH 47°09'14 EAST(ROTATED
FROM 47°09'11" FOR THE PURPOSE OF THIS LEGAL DESCRIPTION) ALONG SAID
SOUTHWESTERLY LINE OF CAJON BOULEVARD, 3559.86 FEET FROM THE
NORTHWESTERLY TERMINUS THEREOF;
THENCE SOUTH 42 052'22" WEST, 1121.68 FEET TO THE NORTHEASTERLY RIGHT-OF-
WAY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD, AS SHOWN ON
SAID RECORD OF SURVEY;
THENCE ALONG SAID NORTHEASTERLY RIGHT-OF-WAY THE FOLLOWING SIX (6)
COURSES:
1) SOUTH 26°09'38" EAST, 451.27 FEET TO THE BEGINNING OF A TANGENT CURVE,
16
i
CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 1860.88 FEET;
2) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF
44 007'47" AN ARC LENGTH OF 1432.65 FEET TO THE WESTERLY LINE OF SAID LOT
110";
3) NORTHERLY ALONG SAID WESTERLY LINE OF LOT "O", NORTH 02°29'03 EAST,
52.44 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE
NORTHERLY AND HAVING A RADIUS OF 1810.08 FEET, A RADIAL LINE TO SAID
BEGINNING OF CURVE BEARS SOUTH 20 016'44"WEST;
4) EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 09°40'13" AN
ARC LENGTH OF 305.50 FEET;
5) TANGENT TO SAID CURVE, SOUTH 79°23'29" EAST, 347.64 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A
RADIUS OF 5829.65 FEET;
6) EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 0°23'21" AN
ARCH LENGTH OF 39.60 FEET TO THE INTERSECTION OF THAT CERTAIN COURSE
IN THE WESTERLY LINE OF MAP RECORDED IN BOOK 44, PAGE 28 OF SAID
RECORD OF SURVEYS, IN THE OFFICE OF SAID COUNTY RECORDER, SHOWN AS
HAVING A BEARING AND DISTANCE OF "NORTH 06 046'20" EAST, 801.83 FEET"
THENCE ALONG LAST SAID WESTERLY LINE, NORTH 06°22'51" EAST, 802.06 FEET
TO AN ANGLE POINT IN LAST SAID RECORD OF SURVEY;
THENCE SOUTH 47 008'02" EAST, 25.01 FEET TO AN ANGLE POINT IN LAST SAID
RECORD OF SURVEY;
THENCE NORTH 42 052'34" EAST, 227.20 FEET TO SAID SOUTHWESTERLY LINE OF
CAJON BOULEVARD;
THENCE ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, NORTH
47 009'14" WEST, 1931.07 FEET, MORE OR LESS TO THE POINT OF BEGINNING.
[end of legal description]
17
EXHIBIT "B"
PROPERTY OWNER MAINTENANCE AREAS
The areas to be maintained will be landscaping and all appurtenances within slopes along portions
on the southerly side of Cajon Boulevard, southeasterly of Glen Helen Parkway, as further depicted
on Exhibit B-1.
18
EXHIBIT B-1
ASSESSMENT DISTRICT DIAGRAM
(see attached)
19
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EXHIBIT "C"
PROPERTY OWNER MAINTENANCE STANDARDS
The Property Owner hereby agrees to maintain the landscaping 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 improvements as required by this Maintenance
Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee,
consistent with the then current standards for landscape maintenance within 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.
20
copy
1 RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO FINDING AND
3 DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST, THAT
BALLOTS SUBMITTED IN FAVOR OF THE ASSESSMENT EXCEED THE BALLOTS
4 SUBMITTED IN OPPOSITION TO THE ASSESSMENT AND THAT THE PUBLIC
5 CONVENIENCE AND NECESSITY REQUIRE THE MAINTENANCE OF
LANDSCAPING IN THE CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA,
6 APPROVING THE FINAL ENGINEER'S REPORT, CREATING AN ASSESSMENT
DISTRICT TO COVER THE COSTS OF SAID MAINTENANCE, KNOWN AS
7 ASSESSMENT DISTRICT NO. 1064, ORDERING THE WORK, CONFIRMING THE
2008-2009 ASSESSMENT ROLL, AND DETERMINING THAT THE SPECIAL
8 ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF
9 1931 SHALL NOT APPLY.
10 WHEREAS,pursuant to Chapter 12.90 of the San Bernardino Municipal Code, the Mayor
11 and Common Council of the City of San Bernardino have preliminarily found that the public
12 interest, convenience, and necessity require the maintenance of landscaping in a portion of the City,
13
14 as more fully hereinafter described, and the appurtenances and appurtenant work and incidental
15 costs and expenses in connection therewith, that the project is feasible, and that the lands to be
16 assessed will be able to carry the burden of the proposed assessments to pay the costs and expenses
17 thereof; and
18 WHEREAS, on April 7, 2008, the Mayor and Common Council of the City of San
19
20 Bernardino preliminarily approved the Engineer's Report relative to the formation of Assessment
21 District No. 1064, which is on file in the office of the City Clerk, and adopted Resolution No.
22 2008-90 entitled:
23 "RESOLUTION OF THE CITY OF SAN BERNARDINO PRELIMINARILY
DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE
24 THE FORMATION OF A LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
25 LOCATED IN THE CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA
WITHOUT COMPLIANCE WITH THE SPECIAL ASSESSMENT INVESTIGATION,
26 LIMITATION AND MAJORITY PROTEST ACT OF 1931; DECLARING ITS
INTENTION TO PROCEED TO ORDER WORK WITHIN THE DISTRICT, TO BE
27 KNOWN AS ASSESSMENT DISTRICT NO. 1064; PRELIMINARILY APPROVING THE
28 ENGINEER'S REPORT AND GIVING NOTICE OF A PUBLIC HEARING."
6-�og
nSi�AmQ _
1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY
PROTEST... CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA,APPROVING THE FINAL
ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1064,ORDERING THE
2 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE
SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931
3 SHALL NOT APPLY.
4 Said resolution was published and notice given of a Public Hearing in the manner required by law,
5
6 and pursuant to Section 4 of Article X111D of the California Constitution, all property owners given
7 notice were also given an Assessment Ballot to indicate support or opposition to the proposed
8 assessment; and written objections and protests, if any, to the formation of the proposed district,
9 the work to be done or the extent of the district to be assessed were heard and considered; and
10 WHEREAS,a Diagram of the Assessment District has been prepared and is on file in the
11 office of the City Clerk; and
12
13 WHEREAS, an Assessment Roll has been prepared totaling$121,553.28,which sets forth
14 the individual assessments to be levied on each of the parcels of land within Assessment District
15 No. 1064, for the fiscal year 2008-2009, as set forth in the Engineer's Report, as now submitted,
16 on file in the office of the City Clerk.
17 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
18 OF SAN BERNARDINO AS FOLLOWS:
19 SECTION 1. That a Public Hearing having been held on June 2, 2008, the Mayor and
20 Common Council, having heard and considered any and all comments received thereon and being
21
22 fully advised, hereby determine that any and all protests received represent less than a Majority
23 Protest, as represented by the assessment units assessable on the properties represented by said
24 protests.
25 SECTION 2. That ballots having been received and considered, it is hereby determined
26 that the ballots submitted in favor of the assessment exceed the ballots submitted in opposition to
27 the assessment.
28
05/29/08 2
RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY
1 PROTEST... CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA,APPROVING THE FINAL
2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1064,ORDERING THE
WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE
SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931
3 SHALL NOT APPLY.
4 SECTION 3. That it is hereby determined that all properties, parcels and lots within the
5
boundaries of the Assessment District receive a local and direct benefit for the works of
6
7 improvement as proposed for said Assessment District, except for portions determined to be of a
8 general benefit as set forth in said Engineer's Report, and it is hereby further determined and
9 declared that all assessable costs and expenses have been apportioned and spread over the
10 properties within the boundaries of the Assessment District in direct proportion to the benefits
11 received thereby.
12
13 SECTION 4. That the public convenience and necessity require the proposed maintenance
14 and the Mayor and Common Council hereby order, by an affirmative vote of not less than 4/5ths
15 of its members present and voting, the formation of Assessment District No. 1064, along with the
16 work and appurtenances described in said Resolution No. 2008-90 and said Engineer's Report as
17 herein approved and that the Special Assessment Investigation, Limitation and Majority Protest Act
18
of 1931 shall not apply.
19
20 SECTION 5. That the Engineer's Report relative to the formation of Assessment District
21 No. 1064 as now submitted, together with a Diagram of the Assessment District, both on file in the
22 office of the City Clerk, are hereby accepted and approved and that said Engineer's Report shall
23 stand as the Report for all future proceedings for this Assessment District.
24
25 SECTION 6. That the Mayor and Common Council do hereby find and determine that the
26 proportionate costs to be levied against the parcels of land within Assessment District No. 1064
27 are correctly set forth on Assessment Roll No. 1064 for the fiscal year 2008-2009, as set forth in
28 said Engineer's Report, as now approved, and on file in the office of the City Clerk of the City of
05/29/08 3
1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY
PROTEST... CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA,APPROVING THE FINAL
2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1064,ORDERING THE
WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE
SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931
3 SHALL NOT APPLY.
4 San Bernardino, and do hereby confirm said assessments.
5
SECTION 7. The City Clerk is hereby directed and authorized to publish a Notice Inviting
6
7 Bids for performing the work ordered, in the San Bernardino County Sun, a newspaper published
8 and circulated in said City, according to the specifications prepared or as will be prepared by the
9 City Engineer and on file or to be filed in the office of the City Engineer, at such time when the
10 installation of the landscaping and appurtenances has been accepted by the City. The contract will
11
be awarded pursuant to standards used by the City in the award of Public Works contracts.
12
13 SECTION 8. It is hereby determined that the formation of the assessment district is
14 categorically exempt from the requirements of the California Environmental Quality Act(CEQA),
15 pursuant to Class 1, Section 15301(c).
16 SECTION 9. Reference hereby is made to said Resolution No. 2008-90 and said
17 Engineer's Report for a description of the work, the extent of the assessment district,the financing
18
19 alternatives and for further particulars.
20 SECTION 10. That the City Clerk is directed to cause a copy of this Resolution to be
21 transmitted to the office of the Auditor-Controller for the County of San Bernardino with the
22 request that the individual assessments as shown on Assessment Roll No. 1064 be placed on the
23 subject 2008-2009 property tax bills for collection together with all other property taxes.
24
25
26
27
28
05/29/08 4
ti
1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY
PROTEST... CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA,APPROVING THE FINAL
2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1064,ORDERING THE
WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE
SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931
3 SHALL NOT APPLY.
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 held on
7 the day of , 20 , by the following vote, to-wit:
8 Council Members: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12
DERRY
13
14 KELLEY
15 JOHNSON
16 MCCAMMACK
17
18
19 City Clerk
20 The foregoing resolution is hereby approved this day of 20
21
22 PATRICK J. MORRIS, Mayor
23 City of San Bernardino
24 Approved as to form:
25
26 .S F. PENMAN, City Attorney
27
28
05/29/08 5
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, 3'" Floor
300 North "D" Street
San Bernardino, CA 92418
AGREEMENT OF PROPERTY OWNERS
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
(Cajon Boulevard and Glen Helen Parkway Area)
THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY
OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY
IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance
Agreement") is dated as of , 2008, and evidences the agreement of LIT
INDUSTRIAL LIMITED PARTNERSIDP, a Delaware limited partnership (owner of Parcel 1 as
described in Exhibit "A") and NORTH SAN BERNARDINO INDUSTRIAL PARK, L.P., a
California limited partnership (owner of Parcel 2 in as described in Exhibit "A") (collectively, the
"Prooertv Owner"), as the owner of certain property within the boundaries of the City of San
Bernardino Assessment District No. I 064 (the "Landscape District"), which property is the subject
of this Maintenance Agreement (the "Prol'l:rtv"), as more fully described in Exhibit "A" attached
hereto and incorporated herein, and (ii) the City of San Bernardino, a municipal corporation and
charter city of the State of California (the "Citv").
THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS:
Section 1.
Obligations ofProoertv Owner.
(a) This Maintenance Agreement is entered into by the parties pursuant to the provisions
of City of San Bernardino Municipal Code Chapter 12.90 ("Municinal Code Chanter 12.90"), and
other applicable law, including without limitation, Streets and Highways Code Section 22500, et
seQ., for the purpose of providing for the private maintenance and operation of certain landscaping
within agreed upon areas of the Landscape District. Exhibit "B" attached hereto and incorporated
herein, reflects the boundaries of the Landscape District and describes the areas thereof that are the
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subject of this Maintenance Agreement which are intended to be maintained by the Property Owner
(the "Prouertv Owner Maintenance Areas"). The Landscape District includes no property other than
the Property.
(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" attached
hereto and incorporated herein, 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. 1064, and the
Property Owner shall pay the City the first year assessments for Assessment District No. 1064, 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.
1064. 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 thereafter. Such assessments (net of the 15% 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, as well as a third parcel that will be created by Parcel Map No.
18979, when and if such Parcel Map is approved by the City and recorded. Parcel Map No. 18979,
if approved and recorded, will further subdivide Parcel 2 of LLA 07-03 into two separate parcels.
(c) The City Engineer or his/her designee, has prepared the Engineer's Report for
Assessment District No. 1064 dated November 26,2007, on file with the City Clerk as File No.
14.40-161 (the "Emrineers' Reoort").
(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 shall pay
the City the annual assessments of Assessment District No. 1064 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.
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Section 2.
Landscape Maintenance.
(a) The Property Owner recognizes that the City has initiated and completed proceedings
to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below
for the maintenance and servicing of public landscaping improvements on the Property Owner
Maintenance Areas situated within the Landscape District.
(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:
(i)
Section 3.
the maintenance and servicing by the City of any landscaping 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, 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, all as more extensively set forth in Exhibit "C"
attached hereto and incorporated by this reference as if set forth fully herein;
and
(ii)
incidental costs associated with the maintenance and servicing described in
subparagraph (i), above, including the costs associated with (I) the
preparation of annual engineering reports, (2) the levy of the annual
assessments, and (3) the collection of the assessments as set forth in this
Maintenance Agreement.
Termination Risffit bv Citv Engineer.
(a) City Engineer shall mean the City Engineer, or his/her designee.
(b) In accordance with Section 3 (b) herein, the City shall have the right to terminate this
Maintenance Agreement in the event the Property Owner shall have failed to perform the
maintenance or the furnishing of services described in Section I (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 furnish the 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
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have the right to terminate this Maintenance Agreement in the event the Property Owner shall have
failed to perform the maintenance or furnish the services described in Section 1 (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
diligent efforts to cure) upon the expiration of such 48-hour notice and cure period. Any termination
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.
( e) The Property is currently composed of two separate parcels (each, a "Parcel"). If a
Parcel is divided into one or more small subdivisions (each a "Lot") by Property Owner or any
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successor in interest, the obligations of this Agreement sball be apportioned among the owners (eacb
an "Owner'') of eacb Lot in proportion to the area of eacb Lot. In the event of a default by an Owner
of one Lot or Parcel, including any obligations pursuant to Section l(b) above, the rights and
remedies available to City including those set forth in this Agreement, may only be enforced against
that Owner or its interest in the Lot or Parcel upon whicb the default occurred.
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
dispatcbed 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 eacb 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:
North San Bernardino Industrial Park, L.P.,
c/o Hillwood Development Company, LLC
268 West Hospitality Lane, Suite 105
San Bernardino, CA 92408
Attn: John M. Magness
Fax: (909) 382-0073
and
LIT Industrial Limited Partnership
c/o ING Clarion Partners
3141 Hood Street, Suite 700
Dallas, TX 75219
Attn: Stacey Magee
Fax: (214) 647-4901
(b) Sucb written notices, demands and communications may be sent in the same manner
to sucb other addresses as either party may from time to time designate as provided in this Section.
Any sucb notice, demand or communication sball be deemed to be received by the addressee,
regardless ofwbether or wben any return receipt is received by the sender on the date set forth on
sucb return receipt, on the day that it is dispatcbed 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 beretofore provided.
(c) Either party may change its address for notice by giving written notice of sucb change
to the other party not less than ten days prior to the effective date of sucb address change. If a party
5
has not provided an address for notice, any other party may deliver notice to such party at the address
shown as the address for the owner of the property in question in the county tax records.
Section 5. Acceotance of Assessment Lien. The Property Owner for itself and its
successors and assigns hereby acknowledges and consents to the collection of any special
assessments as may hereafter be assessed by the City under 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 Agreement. This Maintenance Agreement shall remain in full force
and effect for a term of 30 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.
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. Citv 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 Agreement. Amendment and Termination. This Maintenance
Agreement constitutes the entire agreement between the parties with respect to any matter referenced
herein and supersedes any and all other prior writings and oral negotiations. The terms of this
Maintenance Agreement shall prevail over any inconsistent provision in any other contract document
appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance
Agreement may be amended or terminated only by written agreement, signed by the parties in
interest at the time of such amendment or termination, except as also provided in Section 3 regarding
termination.
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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. Governing Law. This Maintenance Agreement shall be governed by and
construed under the laws of the State of California without giving effect to that body of laws
pertaining to conflict of laws. In the event of any legal action to enforce or interpret this
Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court
of competent jurisdiction located in San Bernardino County, California.
Section 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 attorneys' fees, damage to property or
injuries to or death of any person or persons or damages of any nature including, but not limited to,
all civil claims or workers' compensation claims, arising out of or in any way connected with the
acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the
performance of this Maintenance Agreement.
Section 14. Insurance
(a) Minimum Scone 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
contractual liability, 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."
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(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.
Section 15. No Third Party Beneficiary Ril!:bts. This Maintenance Agreement is entered
into for the sole benefit of City and Property Owner and no other parties are intended to be direct or
incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in,
under or to this Maintenance Agreement.
Section 16. Headings. Paragraphs and subparagraph headings contained in this
Maintenance Agreement are included solely for convenience and are not intended to modifY, explain
or to be a full or accurate description of the content thereof and shall not in any way affect the
meaning or interpretation of this Maintenance Agreement.
Section 17. Construction. The parties have participated jointly in the negotiation and
drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or
interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall
be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall
be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Maintenance Agreement.
Section 18. Waiver. The delay or failure of any 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 with respect to any occurrence or event shall not be deemed a waiver of any right or
remedy with 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
8
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.
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
thirty (3.000) days following the execution of this Maintenance Agreement.
[Signatures Follow On Next Page]
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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.
CITY:
City of San Bernardino
By:
FRED WILSON, City Manager
SEAL
ATTEST:
RACHEL CLARK, City Clerk
Approved as to Form:
(signatures continued on the following page)
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PARCEL 1 OWNER:
LIT INDUSTRIAL LIMITED PARlNERSIDP,
a Delaware limited partnership
By: LIT Holdings GP, LLC, a Delaware limited liability company,
its sole general partner
By: Lion Industrial Properties, L.P., a Delaware limited partnership,
its sole member
By: LIT GP Sub, LLC, a Delaware limited liability company,
its sole general partner
By: Lion Industrial Trust, a Maryland real estate investment trust,
its sole member and manager
By:
Name:
Title:
STATE OF TEXAS
~
~
~
ss.
COUNTY OF DALLAS
On before me, (here insert name and title of the officer),
personally appeared , who proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in hislher/their authorized capacity(ies), and that by
his/hr/their signature( s) on the instrument the person( s), or the entity upon behalf of which the
person(s) acted, executed the instrument, I certify under PENALTY OF PERJURY under the laws
of the State of Texas that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
(signatures continued on the following page)
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PARCEL 2 OWNER:
NORTH SAN BERNARDINO INDUSTRIAL PARK, L.P.,
a California limited partnership
By: Hillwood Fund GPI, LLC,
a Texas limited liability company,
its general partner
By: Hillwood Property Fund, L.P.,
a Delaware limited partnership,
its sole member
By: Hillwood Operating, L.P.,
a Texas limited partnership,
its general partner
By: Hillwood Development Company, LLC,
a Texas limited liability company
its general partner
By:
John M. Magness
Senior Vice President
(Notary Acknowledgment Attached)
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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 December 22, 2006 and recorded on January 3, 2007 as
Document No. 2007-3877 and the Deed of Trust with Absolute Assignment of Leases and Rents,
Security Agreement and Fixture Filing recorded on November 16, 2007 as Document No. 2007-
0636457 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
and such Lenders
By:
J. Kent Howard
Senior Vice President
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
J. Kent Howard
Senior Vice President
STATE OF TEXAS
~
~
~
ss.
COUNTY OF DALLAS
This instrument was ACKNOWLEDGED before me on ,2008, 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.
[SEAL]
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
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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 April 11 , 2008 and recorded on April 17, 2008 as Document No.
in the Official Records of San Bernardino County, California, to this Maintenance
Agreement.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
Name:
Title:
STATE OF TEXAS
~
~
~
ss.
COUNTY OF DALLAS
On before me, (here insert name and title of the officer),
personally appeared , who 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/hr/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument, I certify under PENALTY OF PERJURY under the laws
of the State of Texas that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
My Commission Expires:
Notary Public, State of Texas
Printed Name of Notary Public
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EXHIBIT "A"
PROPERTY DESCRIPTION
Real property in the City of San Bernardino, County of San Bernardino, State of California,
described as follows:
Parcels 1 and 2 of Certificate of Compliance recorded October 15, 2007 as Instrument No.
0579046 Official Records, more completely described as follows:
PARCEL 1:
PARCEL I AS SHOWN ON CERTIFICATE OF COMPLIANCE AS EVIDENCED BY
DOCUMENT RECORDED OCTOBER 15, 2007 AS INSTRUMENT NO. 2007-0579046 OF
OFFICIAL RECORDS AND MORE COMPLETELY DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 37 OF RANCHO MUSCUPIABE, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THAT CERTAIN COURSE IN THE SOUTHWESTERLY
LINE OF CAJON BOULEVARD, BEING A LINE PARALLEL WITH AND 70.00 FEET
SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF
SAID CAJON BOULEVARD, AS SHOWN ON MAP RECORDED IN BOOK 120, PAGES 7
THROUGH 14 INCLUSIVE OF RECORD OF SURVEYS, IN THE OFFICE OF SAID
COUNTY RECORDER, SHOWN AS HAVING A BEARING AND DISTANCE OF "NORTH
47009' II" WEST, 5490.88 FEET", DISTANT THEREON SOUTH 470 09' 14" EAST
(ROTATED FROM 470 09' 11" FOR THE PURPOSE OF THIS LEGAL DESCRIPTION)
ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, 3559.86 FEET FROM
THE NORTHWESTERLY TERMINUS THEREOF;
THENCE SOUTH 42052' 22" WEST, 1121.68 FEET TO THE NORTHEASTERLY RIGHT-
OF- WAY LINE OF THE ATCHISON, TOPEKA AND SANTA FE RAILROAD, AS SHOWN
ON SAID RECORD OF SURVEY;
THENCE ALONG SAID NORTHEASTERLY RIGHT-OF-WAY THE FOLLOWING THREE
(3) COURSES:
I) NORTH 260 09' 38" WEST, 816.36 FEET TO THE BEGINNING OF A TANGENT CURVE,
CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 1960.88 FEET;
2) NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 250
23' 52" AN ARC LENGTH OF 869.21 FEET;
3) TANGENT TO SAID CURVE NORTH 51033' 29" WEST, 1526.71 FEET TO THE
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EASTERLY LINE OF MAP OF DEVORE, AS PER MAP RECORDED IN BOOK 17, PAGES
79 AND 80 OF SAID MAPS, IN THE OFFICE OF SAID COUNTY RECORDER AS SHOWN
ON SAID RECORD OF SURVEY;
THENCE ALONG SAID EASTERLY LINE, NORTH 15040' 49" EAST, 924.01 FEET, MORE
OR LESS TO SAID NORTHWESTERLY TERMINUS OF SAID SOUTHWESTERLY LINE
OF CAJON BOULEVARD;
THENCE ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, SOUTH 470
09' 14" EAST, 3559.86 FEET TO THE POINT OF BEGINNING.
PARCEL 2:
PARCEL 2 OF CERTIFICATE OF COMPLIANCE RECORDED OCTOBER 15, 2007 AS
INSTRUMENT NO. 2007-0579046 OFFICIAL RECORDS, MORE COMPLETELY
DESCRIBED AS FOLLOWS:
THOSE PORTIONS OF LOT 37 OF RANCHO MUSCUPIABE, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER
MAP RECORDED IN BOOK 7, PAGE 23 OF MAPS, IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, AND LOTS "N", "0", "P", AND "Q", BLOCK 12, OF
RESUBDIVISION OF MEYER AND BARCLAY SUBDIVISION, AS PER MAP RECORDED
IN BOOK 12, PAGE 18 OF SAID MAPS, IN THE OFFICE OF SAID COUNTY RECORDER,
DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT ON THAT CERTAIN COURSE IN THE SOUTHWESTERLY
LINE OF CAJON BOULEVARD, BEING A LINE PARALLEL WITH AND 70.00 FEET
SOUTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF
SAID CAJON BOULEVARD, AS SHOWN ON MAP RECORDED IN BOOK 120, PAGE 7
THROUGH 14 INCLUSIVE OF RECORD OF SURVEYS, IN THE OFFICE OF SAID
COUNTY RECORDER, SHOWN AS HAVING A BEARING AND DISTANCE OF ''NORTH
47009'11" WEST, 5490.88 FEET", DISTANT THEREON SOUTH 47009'14 EAST (ROTATED
FROM 47009'11" FOR THE PURPOSE OF THIS LEGAL DESCRIPTION) ALONG SAID
SOUTHWESTERLY LINE OF CAJON BOULEVARD, 3559.86 FEET FROM THE
NORTHWESTERLY TERMINUS THEREOF;
THENCE SOUTH 42052'22" WEST, 1121.68 FEET TO THE NORTHEASTERLY RIGHT -OF-
WAY LINE OF THE ATCmSON, TOPEKA AND SANTA FE RAILROAD, AS SHOWN ON
SAID RECORD OF SURVEY;
THENCE ALONG SAID NORTHEASTERL Y RIGHT-OF-WAY THE FOLLOWING SIX (6)
COURSES:
1) SOUTH 26009'38" EAST, 451.27 FEET TO THE BEGINNING OF A TANGENT CURVE,
16
CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 1860.88 FEET;
2) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF
44"07'47" AN ARC LENGTH OF 1432.65 FEET TO THE WESTERLY LINE OF SAID LOT
"0";
3) NORTHERLY ALONG SAID WESTERLY LINE OF LOT "0", NORTH 02"29'03 EAST,
52.44 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE
NORTHERLY AND HAVING A RADIUS OF 1810.08 FEET, A RADIAL LINE TO SAID
BEGINNING OF CURVE BEARS SOUTH 20016'44"WEST;
4) EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 09040'13" AN
ARC LENGTH OF 305.50 FEET;
5) TANGENT TO SAID CURVE, SOUTH 79"23'29" EAST, 347.64 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHERLY AND HAVING A
RADIUS OF 5829.65 FEET;
6) EASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 0"23'21" AN
ARCH LENGTH OF 39.60 FEET TO THE INTERSECTION OF THAT CERTAIN COURSE
IN THE WESTERLY LINE OF MAP RECORDED IN BOOK 44, PAGE 28 OF SAID
RECORD OF SURVEYS, IN THE OFFICE OF SAID COUNTY RECORDER, SHOWN AS
HAVING A BEARING AND DISTANCE OF "NORTH 06046'20" EAST, 801.83 FEET"
THENCE ALONG LAST SAID WESTERLY LINE, NORTH 06"22'51" EAST, 802.06 FEET
TO AN ANGLE POINT IN LAST SAID RECORD OF SURVEY;
THENCE SOUTH 47008'02" EAST, 25.01 FEET TO AN ANGLE POINT IN LAST SAID
RECORD OF SURVEY;
THENCE NORTH 42052'34" EAST, 227.20 FEET TO SAID SOUTHWESTERLY LINE OF
CAJON BOULEVARD;
THENCE ALONG SAID SOUTHWESTERLY LINE OF CAJON BOULEVARD, NORTH
47009'14" WEST, 1931.07 FEET, MORE OR LESS TO THE POINT OF BEGINNING.
[end ofIegal description)
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EXHIBIT "B"
PROPERTY OWNER MAINTENANCE AREAS
The areas to be maintained will be landscaping and all appurtenances within slopes along portions
on the southerly side of Cajon Boulevard, southeasterly of Glen Helen Parkway, as further depicted
on Exhibit B-1.
18
EXlDBIT B-1
ASSESSMENT DISTRICT DIAGRAM
(see attached)
19
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EXlDBIT "C"
PROPERTY OWNER MAINTENANCE STANDARDS
The Property Owner hereby agrees to maintain the landscaping 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 improvements as required by this Maintenance
Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee,
consistent with the then current standards for landscape maintenance within 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.
20