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Home My WebLink About2008-178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2008-178 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1064 (CAJON BOULEVARD AND GLEN HELEN P ARKW A Y AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT). BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, the form of which is attached hereto as Exhibit" I " and made part hereof, relative to proposed Assessment District No. 1064, known as the Cajon Boulevard and Glen Helen Parkway Area Landscape Assessment District, as set forth in the Engineer's Report for said Assessment District, on file in the office of the City Clerk. SECTION 2. Authorization to execute the Landscape Maintenance Services Agreement is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution. II/ 05/05/08 I 2008-178 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1064 (CAJON BOULEVARD AND GLEN HELEN PARKWAY AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT). I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a ioint regular meeting thereof held on the 2nd day of June , 20~, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x BAXTER x BRINKER x DERRY x KELLEY x JOHNSON x MCCAMMACK x 5!tw~nwlW~ ~ City Clerk J The foregoing resolution is hereby approved this t -r,III day of June ,20~. Approved as to Form: ~ ES F. PENMAN, City Attorney OS/20/08 2 Recording Requested By: Tilles: Peges: 23 City of San Bernardino Fees 77.00 300 North "D" Street Taxes 0.00 San Bernardino, CA 92418 Other 13.00 PAID $77 . 013 8/18/2008 2:08 PM Ne . . Recorded in Official Records, County of San Bernardino When Recorded, Mail To: City of San Bernardino l Real Property Section, 3rd Floor 300 North "D" Street , San Bernardino, CA 9241 ~ AGREEMENT OF PROPERTY OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Cajon Boulevard and Glen Helen Parkway Area) TIllS 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 June 2 , 2008, and evidences the agreement of LIT INDUSTRIAL LIMITED PARTNERSHIP, a Delaware limited partnership (owner of Parcel I 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 "Propertv 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 "ProDertv"), 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 "City"). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations ofPropertv 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 sea., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the Landscape District. Exhibit "B" attached hereto and incorporated herein, reflects the boundaries of the Landscape District and describes the areas thereof that are the I , , 2008-178 subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Prooertv 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 $eas 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 t\l,e first year assessments for Assessment District No. 1064, and the Property Owner shall pay th.~ 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 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 hislher 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 "Enl!ineers' 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. I 064 attributable to the costs of W eeldy 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. 2 Section 2. 2008-178 . Landscaoe 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 fojiowing: (i) (ii) Section 3. the Ipaintenance 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 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 Right bv City Engineer. (a) City Engineer shall mean the City Engineer, or his/her designee. (b) In accordance with Section 3 (b) herein, the City 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 3 2008-178 . 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 I (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 witJithe 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 altion 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"). Ifa Parcel is divided into one or more small subdivisions (each a "Lot") by Property Owner or any 4 2008-178 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 requirQft 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, returtl, receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States }Jail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: 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 INO 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 5 2008-178 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 assesllments. 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 ~ 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 I of the Engineer's Report. Section 8. City Confirmation. On request from time-to-time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 9. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 10. Entire Al!I'eement. 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. 6 2008-178 . Section II. 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 /he 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, 1:41;: parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction IQcated 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 SCODe and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (i) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket 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." 7 2008-178 . (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 ins~e coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 1-., (d) Non-limitin2. 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!hts. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. 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. Severabilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable 8 2008-178 . 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. Authoriiy. 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 ~!lt 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] 9 2008"-178 . 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: ,. pi ': By: SEAL ATTEST: ~~.1 f.:J. ~ RA EL CLARK, City Clerk Approved as to Form: /~ ES F. PENMAN, City Attorney (signatures continued on the following page) 10 '"",..""",'C,,''''''','"O...'',''.M,,.''''"''W' """,","Co\', '0''''"''','",'.,,,,,'.,,,''',,,.......,[[...,.1<[.,,,,.,'.,.'''., State of California Countyof \~af'l Sevvr.wdirlO CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT ('6 On '-.1 lAMP 6/ 2.00 ~ before me, personally appeared _necl. IN i ~ &J h So.V\ l1?>~V vttw"di Vlll I (here inse t name and title of the 0 ieer) (1~-hf-llitlt~fN Ii ~ 04 0+ who proved to me on the basis of satisfactory evidence to be the persontsl whose namei6t is.lafe subscribed to the within instrument and acknowledged to me that he/sRQ/tRey executed the same in hisfRer/tReir authorized capacityfje5t, and that by his/I ,!I/tl ,~il signatur~ on the instrument the person\5l, or the entity upon behalf of which the person\5l acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ...: -- MAYRA OCH1Ql!Tl COMM. #1790419 " NOTARY PUBLIC. CALIFORNIA ill . SAN BERNAROINO COUNTY My Comm. Expires February 3. 2012 Signature ~7-L.<<.- &~~-<-~. (Seal) OPTIONAL INFORMATION Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document The preceding Certificate of Acknowledgment is attached to a document titled/for the purpose of asis of satisfactory evidence: of identification 0 credible witness(es) containing pages, and dated. . otarial event is detailed in notary journal on: Page # Entry # The signer(s) capacity or authority is/are as: D Individual(s) D Attorney-in-Fact D Corporate Officer(s) Notary contact: Other D Additional Signer(s) D Signer{s) Thumbprint(s) D D Guardian/Conservator o Partner - Limited/General D Trustee(s) D Other Name(s) 01 Person{s) or Entity{ies) Signer is Representing It) Copyright 7007 Notary Rotary,lnc. 9,5 29th St, Des Moines, IA 50312-3612 Form ACK03 10/07 To re,order, call toll-free 1-877-349-6588 or visit llS 011 the Internet at http://www.notaryrotarycom 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' ~~ N~ ~ v...s e.v-~ t Title: 11"11 .(\/....S; I STATE OF TEXAS s s s ss. COUNTY OF DALLAS before me, (here insert name and title of the officer), , who proved to me on the basis of satisfactory evidence to be the person(s) ose 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 certity under PENALTY OF PERJURY under the laws of the State of Texas that the foregoing paragra is true and correct. WITNESS my hand and official seal. My Commission Expires: ~ .;; 6 - d-O 1/ 11 ~'\ \^ A^' '*II/. ,S' C" 'VI.. ~ ~n'\ ...........'v ~ !"~-""~f".t{Y ,o~"'~\ iifn"'..O*....("'!% $-:~ ("".O)~ ~ : 0 :0" 5 : ~ : E % :. -y~ ~.: S ~ .... ~ OF ,~~.... j ':::1: .~... . ~ ~ O<5...~~~~.~~..... # ~/IIIJ: "'20.20'\ 1t,\\,#' 1IIII/fIlIlIltnllll1\\\\\\'\ (signatures continued on the following page) 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: (Notary Acknowledgment Attached) 12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) ) SS. County of San Bernardino ) On June 12. 2008, before me, Theresa Wright, Notary Public, personally appeared John M. Magness, I.UU__~~~ I NoIaIy NIle - CalIlamIa I I-~~ ~ .:=-..:..::, . _. . - - - - - - - - - - - - _I 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/her/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 California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. ************************ OPTIONAL **************************** Though the information be/ow is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Cajon-Hunter Maintenance Agreement Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: o Individual o Corporate Officer - Title(s): o Partner --0 Limited 0 General o Attorney-in-Fact o Trustee o Guardian or Conservator o Other: Top of thumb here Signer is Representing: Consent of Lender WELLS FARGO BANK, NATIONAL ASSOCIATION ("Agent"), hereby consents to and subordinates that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated 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:9~~~ Francine G. Bradford Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: ~cJ /!~~ Francine G. Bradford Vice President STATE OF TEXAS S S ss. COUNTY OF DALLAS S On 'O)~ %" ! J.oog before me, ~ /f.... - ~ , personallyapp ed Francme G. Bradford, 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. ~~-~ NotaI)' Publi~ State of Texas f( tJ1..u.. tt.am - "aAtr(~ Printed Name of Notary Public My Commission Expires: tJ c-1lP3 tie. ~ 02..011 : n."~~,1,; ".... "'E -,1 RENU ELt.M.,.-mE NO~~ ~ri~~i;~~~ E~J~::s October 29. 2011 I3 RENU EIAM-BATTLE Notary Public. State of Texas My CommisSion Exptres OCtober 29. 2011 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 II ,2008 and recorded on April I?, 2008 as Document No. 0l{)(fG-0/1;)'so'6 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: a~~~ ~~ Francine G. Bradford Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: ~~ A~~ Francine G. Bradford Vice President STATE OF TEXAS s s s ss. COUNTY OF DALLAS On Dh'Uf 8 . .;loot before me, ~~. ~ , personally appeared Frar'tcine G. Bradford, 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 hislhr/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. ""'\'~~~~..... ,,,...~....f"" :"..:' .~ : : ~:.. )~i .....\"..'(1 ~_:,~!?!~,ilif' ".-~-- RENEE EL"M.8AlllE Notary Public. State of "'fex8s My Commission Expires October 29, 2011 ~~.~ NotaIJSPublic, State of Texas t<.eJ1 ei &aPr - eJll7!l g:... Printed Name of Notary Public RENEE ElAM.8"tTLE NotarY Public. SlOte of 1e",,' My commi.."", ExPires Ocfobel 290 2011 14 My Commission Expires: ~(...7PI8~ ~P:dOII 2008'-178 EXHIBIT" A" PROPERTY DESCRIPTION Real property in the City of San Bernardino, County of San Bernardino, State of California, described as follows: Parcels I and 2 of Certificate of Compliance recorded October 15, 2007 as Instrument No. 0579046 Official Records, more completely described as follows: PARCEL 1: , pi PARCEL I AS SHOWN ~ CERTIFICATE OF COMPLIANCE AS EVIDENCED BY DOCUMENT RECORDEO 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' II" 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 510 33' 29" WEST, 1526.71 FEET TO THE 15 2008--178 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 FEETko THE POINT OF BEGINNING. f, 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 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 26009'38" EAST, 451.27 FEET TO THE BEGINNING OF A TANGENT CURVE, 16 2008"-178 . CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 1860.88 FEET; 2) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 44007'47" 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 BI3tI.RS SOUTH 20016'44"WEST; 4) EASTERLY ALONG S~ID CURVE, THROUGH A CENTRAL ANGLE OF 09040'13" AN ARC LENGTH OF 305.s0)'EET; 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 of legal description) 17 2008-178 . 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 2008-178 . EXHIBIT B-1 ASSESSMENT DISTRICT DIAGRAM (see attached) ~' ~, .i 19 . il."I! J · W~~ t !I ld f I I II'~ ili i j 5 j j' I e H;.f i ~!~n_ i ~I I !IV iil I fR1 ~~ j ~jH I ;t · j !e feili~li !e' f ii i ~f dlfU:lf,;f j u ~ Q .... ~ '" ~O~~iS~ ;j Z "Q~i:l ~t~i~~ g S ng~ E-<rr.li!i"'~~ Z.... ::!u~;S = o::!"'~ ~E-<~~~~ rr.lZ~p< ~~~~ai rr.I rr.I '" ill!:l ~ < ~ !!S~~ rr.I< rr.lu < --~ II ~"Ii! h~'~J!1 ~ If!! I J .Rl !! I U S i I 51 tli' ~) hlhH n~~ In i!hip ~db~1 . 5 ~ . J I .~ I' , I'! 'I 'tl ~I " d! ' j ! 'i.! II J n I! Iii H ! ~e j ~dj !! or I 200~~. ilg i~ i , o ~IH i O~Ul ,z g i5;I~ ~~~I~ Q a:~~!" ~ Illl~~I~~~ ~Q~ ~<~ en!!; (.) ~ ~ eJ l.L!z:J ,,~::! ow!!l il~1 ~~.. !!So. ulh ~ o ~ I! f I I' .I. i I :Ie I M M 'II in i BH z "1 ." I · ~ IS ~ ~ "i ~g; ~ t ~ !;- zO o. P ~! "~ ~ 2008-178 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,1l\reas so long as this Maintenance Agreement is in effect. The Property Owner shall waintain the landscaping improvements as required by this Maintenance Agreement in a condition, ~ 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