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HomeMy WebLinkAboutR40-Economic Development Agency ECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO FROM: Gary Van Osdel Executive Director Or:' ,<. , . ~ ,.,' rJECT: I, ' I , i ""', .. I 'Ii i \ LEASE OF AGENCY PROPERTY TO THE EAST VALLEY WATER DISTRICT DATE: September 20, 200 I Svnopsis of Previous Commission/Council/Committee Action(s): On January II, 2001, the Redevelopment Committee recommended that this item be sent to the Community Development Commission for approval. On March 5, 2001, the Community Development Commission adopted Resolution No, CDCj2001-12 approving a Lease Agreement by and between the Redevelopment Agency and the East Valley Water District for Agency owned property on Foothill Drive westerly of Little Sand Canyon Creek. Recommended Motion(s): (Community Development Commission) MOTION: RATIFY CHANGES TO ENVIRONMENTAL INDEMNITY PROVISIONS OF LEASE AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND THE EAST VALLEY WATER DISTRICT AND AUTHORIZE EXECUTION OF THE AGREEMENT BY THE EXECUTIVE DIRECTOR Contact Person(s): Gary Van Osdel Phone: 663-1044 Project Area(s) N/A Ward(s): Supporting Data Attached: [{I Staff Report [{I Resolution(s) [{I Agreement(s)jContract(s) 0 Map(s) 0 LetterlMemo FUNDING REQUIREMENTS Amount $ N/A Source: SIGNATURE: Budget Authority: N/A NjA Commission/Council Notes: GVO:lag:IO-OI.OI East Valley Water COMMISSION MEETING AGENDA Meeting Date: lOj1l2001 Agenda Item Number: ..A'lO ECONOMIC DEVELOPMENT AGENCY STAFF REPORT LEASE OF AGENCY PROPERTY TO THE EAST V ALLEY WATER DISTRICT BACKGROUND The East Valley Water District (the "District") needs to replace its water tank located near the intersection of Foothill Drive and Sterling Avenue, The replacement tank will be built into the ground on property owned by the San Bernardino Municipal Water Department northerly of the current tank site, During construction, the contractor will have to excavate and haul approximately 55,000 cubic yards of soil to an offsite location for temporary storage. In addition, the storage site will most likely be used by the contractor for the construction office trailer and to store other construction materials, To accommodate this requirement, the contractor will need approximately four acres ofland for up to two years, The closest property that can accommodate the temporary construction storage needs of the District contractor is the Redevelopment Agency's 8.3 acre parcel on Foothill Drive westerly of Little Sand Canyon Creek (see attached map) The District has requested to lease this Agency property for up to 24 months. Proposed uses for the property would consist of storing soil, marshalling construction materials and construction office placement. The District would assure that the contractor prepare and adhere to a Storm Water Pollution Plan for the area and be responsible for site security and appearance. Upon completion of the project, the District would require the contractor to reconstruct the Agency site by restoring the original grade and seeding the entire disturbed area, CURRENT ISSUE Prior to seeking Commission approval of the proposed Lease Agreement between the Agency and the District, Agency Special Counsel was assured by District Counsel that the form and content of the proposed Lease Agreement were acceptable, However, when the proposed Lease Agreement was presented to the District's Board of Directors for approval, the Board requested revisions to the provisions pertaining to environmental indemnification and restoration ofthe premises at end of the term ofthe lease for consistency with the District's public works contract for the water tank installation and to fix the point in time when the District's contractual indemnity obligation to the Agency would be determined, Since the Commission's approval of the Lease Agreement, Agency Special Counsel and counsel for the District have diligently negotiated new environmental inspection and indemnity provisions for the lease, The changes to the lease occur in Sections 7 and 8 and provide for an environmental assessment of the property before the District uses it and after the District uses it to determine what, if any, environmental issues result from the District's use ofthe Agency's property, The District agrees to remedy and indemnify the Agency for any discrepancies identified between the two environmental assessments of the property, GYO:lag:10-Ol-Ol East Yalley Water COMMISSION MEETING AGENDA Meeting Date: lOj1l2001 Agenda Item Number: #12- Economic Development Agency Staff Report East Valley Water District September 20,2001 Page Number -2- The District approved the revised Lease Agreement in September 2001 and Agency Special Counsel approved the revised Lease Agreement. ENVIRONMENTAL The use of the land for temporary storage of excavated soil and construction materials and equipment is a minor temporary use of land having negligible or no permanent effects on the environment. FISCAL IMP ACT No negative fiscal impact. RECOMMENDATION That the C unity Development Commission ratify the attached revised Lease Agreement e Rede lopment Agency of the City of San Bernardino and the East Valley Water d aut rize e Executive Director to execute the lease agreement. GVO:lag: 10-01-01 East Valley Water COMMISSION MEETING AGENDA Meeting Date: lOj1/Z001 Agenda Item Number: ~ REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 2001 LEASE AGREEMENT (East Valley Water District) THIS 2001 LEASE AGREEMENT (East Valley Water District) (this "Lease") is entered into by and between the redevelopment Agency of the City of San Bernardino, a California public entity (the "Agency"), and the East Valley Water District, a California public entity ("EVWD"), with reference to the following facts: Recitals: WHEREAS, EVWD needs to replace a water tank located near the intersection of Foothill Drive and Sterling A venue; and WHEREAS, the EVWD's replacement water tank will be installed underground on a site to the north ofthe site of the existing water tank (the "Project"); and WHEREAS, the installation of the new underground water tank requires EVWD to excavate and remove approximately 55,000 cubic yards of soil that will need to be stored off-site during installation of the new water tank; and WHEREAS, EVWD will also require an off-site location for temporary storage of construction materials and equipment related to the new underground water tank installation and placement of a temporary construction office for its prime contractor on the new underground water tank installation; and WHEREAS, the closest property that meets the off-site requirements ofEVWD regarding the new underground water tank installation is an 8,3 acre parcel owned by the Agency, generally located on Foothill Drive west of Little Sand Canyon Creek, with Assessor Parcel Number 0155-381-45, and specifically described by the legal description attached to this Lease as Exhibit "A" (the "Premises"); and WHEREAS, the Agency desires to lease and EVWD desires to use the Premises for the limited purposes related to the installation of a new underground water storage tank, as described above; NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS LEASE, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES TO THIS LEASE AGREE AS FOLLOWS: 1 SB2001:1332.4 I, Term of Lease. EVWD leases the Premises from the Agency for a period of 24 consecutive months (the "Term"), commencing on the date of execution of this Lease by the Agency, as set forth next to the signature ofthe authorized representative of the Agency on this Lease, Following the initial Term of this Lease, EVWD may continue to occupy the Premises on a month-to-month basis, not to exceed an aggregate of 12 months in addition to the initial Term of this Lease. If during the Term, EVWD no longer requires the use of the Premises for the allowable uses set forth in Section 3, EVWD may terminate this Lease, upon 30 days written notice to the Agency delivered in accordance with Section II. IfEVWD terminates this Lease during the Term, in accordance with the previous sentence, EVWD will not be obligated to pay Rent (as defined in Section 2) for the remainder of the Term, following the 30th day after the effective date of EVWD's notice of termination under Section 11. 2, Rent. EVWD will pay the Agency $1,600,00 per month during the initial Term of this Lease, If EVWD continues to occupy the Premises on a month-to-month basis following the expiration ofthe original Term of this Lease, as provided in Section I, EVWD will pay the Agency $1,600,00 per month during the first 6 months following the expiration of the initial term ofthis Lease, IfEVWD continues to occupy the Premises on a month-to- month basis more than 6 months after the expiration ofthe original Term of this Lease, EVWD will pay the Agency $3,200,00 per month for each month it occupies the Premises more than 6 months after the expiration of the original Term of this Lease, 3, Allowable Uses, EVWD may only use the Premises for the following uses: A. Storage of soil excavated for installation of new underground water tank to replace existing water tank located near the intersection of Foothill Drive and Sterling Avenue; and B. Placement of a temporary construction trailer/office for EVWD's prime contractor for the underground water tank installation; and C, Storage of construction materials and equipment required for installation of the EVWD's new underground water tank; and D. Any other use ofthe Premises that is approved in writing by the Executive Director of the Agency, prior to the commencement of such use. 4, \, Storm Water Pollution Plan. EVWD must prepare an appropriate Storm Water Pollution Plan and obtain any necessary NPDES Permit for its operations or the operations of its contractors on the Premises. 5, Premises Maintenance and Security, EVWD must provide security for the Premises, including without limitation, temporary fencing around all portions of the Premises and security guard/patrol services, if necessary, Additionally, EVWD must maintain the Premises in a clean and orderly manner and in a safe condition for construction sites of 2 SB200Ll332.4 similar type and magnitude, 6. Insurance, Prior to occupying the Premises, EVWD must furnish, or cause to be furnished, to the Agency duplicate originals or appropriate certificates of public indemnity and liability insurance in the amount of One Million Dollars ($1,000,000,00) combined single limit, naming the Agency and the City as additional insureds, Said insurance must cover comprehensive general liability including, but not limited to, contractual liability; acts of subcontractors; premises-operations; explosion, collapse and underground hazards, if applicable; broad form property damage, and personal injury including libel, slander and false arrest. In addition, EVWD must provide to the Agency adequate proof of comprehensive automobile liability insurance covering owned, non- owned and hired vehicles, combined single limit in the amount of One Million Dollars ($1,000,000,00) each occurrence; and proof of workers' compensation insurance. Any and all insurance policies required under this Lease must be obtained from insurance companies admitted in the State of California and rated at least B+: XII in Best's Insurance Guide. All insurance policies must provide that they may not be canceled or materially altered unless the Agency and the City receive written notice of cancellation or alteration at least thirty (30) calendar days prior to the effective date of cancellation or alteration. Any and all insurance obtained by EVWD in satisfaction of the requirements of this Section 6 will be primary to any and all insurance that the Agency and/or City may otherwise carry, including self insurance, which for all purposes of this Lease will be separate and apart from the requirements of this Lease. Any insurance policies covering the Premises as obtained by the Agency will not be transferred from the Agency to EVWD, Appropriate insurance means those insurance policies approved by Agency legal counsel consistent with this Lease, Any and all insurance required under this Lease shall be maintained and kept in force until the expiration of the Term or earlier termination ofthis Lease. Notwithstanding the foregoing, ifEVWD is self-insured under a bona fide public entity self-insurance program, evidence of such self-insurance program acceptable to Agency legal counsel will satisfy the insurance requirements set forth in this Section 6, 7, Restoration of the Premises at End of Lease Term. A. Upon execution of this Lease, the parties hereto shall meet and confer in a coordinated effort to reach mutual agreement on the selection of an environmental consultant to be retained by EVWD, at its sole cost and expense, for the purpose of conducting an independent environmental assessment of the Premises, including without limitation the sampling of soil thereon and issuing a report on the environmental condition of the Premises as it exists at the commencement of the Term, As part of this process, the parties shall also attempt to reach mutual agreement on the location of soil samples to be taken by the environmental consultant on the Premises, the materials and substances to be tested for, the testing methodology to be used to analyze said materials and substances, and the 3 S82oo1:1332.4 minimum contents of the consultant's report, Ifthe parties hereto cannot reach agreement on the above matters within 45 days ofthe date ofthis Agreement, or any extension thereof mutually agreed upon in writing by both parties hereto, this Lease may be terminated by either party by delivery of written notice to the other party, without incurring any loss or liability therefor, If the parties are able to reach agreement on the above matters, a copy of the report issued by the consultant retained by EVWD shall be delivered to the Agency within five (5) days ofEVWD's receipt thereof, EVWD shall not take possession of the Premises by entry or otherwise, other than limited entry onto the Premises for EVWD's consultant to perform the environmental assessment activities mutually agreed upon, until EVWD has accepted the environmental condition ofthe Premises set forth in its consultant's report or waived the requirement of such report, If the results of said consultant's report are not satisfactory to EVWD, EVWD may terminate this Lease at any time prior to taking possession ofthe Premises, without incurring any loss or liability, EVWD shall require that the consultant agree in a written contract between EVWD and the consultant that the Agency may rely on the report of the consultant and all supporting information and data for any purpose, B. Following EVWD's taking possession ofthe Premises or waiver of such condition, EVWD shall provide sixty (60) days written notice to the Agency of its intent to surrender the Premises. Thereafter, prior to the expiration or termination of this Lease, the Agency shall retain an environmental consultant that is mutually agreed upon by both parties to conduct a second independent environmental assessment of the Premises, including without limitation the sampling, testing, and analysis of soil thereon in a manner substantively similar to the procedure agreed upon by the parties pursuant to Section 7.A. ofthis Lease and to issue a report on the condition of the Premises as it exists at the time EVWD surrenders occupancy thereofto the Agency. EVWD shall reimburse the Agency for all costs and expenses associated with retaining said environmental consultant for assessment of the Premises and compilation of a report, within thirty (30) days of demand for reimbursement from the Agency, A copy of the consultant's report shall be delivered to the EVWD within five (5) days of Agency's receipt thereof, The Agency shall require that the consultant agree in a written contract between the Agency and the consultant that the EVWD may rely on the report of the consultant and all supporting information and data, including any remedial action recommendations of the consultant, for any purpose. C, Prior to expiration or termination of this Lease, EVWD must restore the Premises to its condition before EVWD's use or occupancy of the Premises (as reflected in the report issued pursuant to Section 7,A, of the Lease), as reasonably determined by the independent environmental 4 SB2QOl: 1332.4 consultant retained pursuant to Section 7,B. ofthis Lease, including without limitation, removal of any fencing, removal of any construction trailer/office, removal of construction materials, supplies and equipment, trash and grading the Premises to its original contours, elevations and compaction, ensuring or restoring the original soil content such that no hazardous substances or materials or concentrations or quantities of hazardous substances or materials are allowed to remain on the Premises that did not exist on the Premises prior to EVWD taking possession of the Premises, Also, EVWD will restore the vegetation that existed on the Premises prior to EVWD using or occupying the Premises, 8, Indemnification. A. Excepting the active negligence or willful misconduct of the Agency and subject to Section 8.B. of this Lease, EVWD shall indemnify and hold the Agency and its officers, directors, agents, consultants, attorneys and employees, harmless from and against all claims and liabilities of any kind arising out of, in connection with, or resulting from, any and all acts or omissions on the part ofEVWD and/or its agents, contractors, consultants, and employees occurring during the Term in connection with the Project, the performance of their obligations under this Lease, or their use and/or occupancy ofthe Premises, and defend the Agency and its officers, directors, agents, consultants, attorneys and employees from any suits or actions at law or in equity and to pay all court costs and counsel fees incurred in connection therewith, B, With respect to all claims, losses, liabilities, damages, demands, actions, judgments, causes of action, assessments, penalties, costs, regulatory fines, compliance and remediation costs, expenses (including, without limitation, the reasonably fees and disbursements oflegal counsel, expert witnesses, and accountants), and all foreseeable and unforeseeable consequential damages which might arise or be asserted against the Agency and/or EVWD with regard to the presence or any increase in the concentration or quantity of any "Hazardous Materials" (as such term is defined in Exhibit "B" attached hereto) on, in, under, or affecting all or any portion of the Premises, EVWD shall defend, indemnify, and hold the Agency and its officers, directors, agents, consultants, attorneys and employees harmless therefrom only to the extent that: (I) the presence, concentration or quantity of any Hazardous Materials were not reported to be present on the Premises in the report issued pursuant to Section 7,A. of this Lease, (2) the presence or increased concentration or quantity of any Hazardous Materials are expressly reported to be present on the Premises in the report issued pursuant to Section 7,B. ofthis Lease and (3) any newly reported presence, or increased concentration or quantity of any 5 SB2ool: 1332.4 Hazardous Materials identified in the report issued pursuant to Section 7,B, (in comparison with the report issued pursuant to Section 7 ,A.) is not appropriately remediated by EVWD, as reasonably determined by the independent environmental consultant retained pursuant to Sections 7,B, and 7.C. of this Lease, Any presence of Hazardous Materials on the Premises identified in the report issued pursuant to Section 7,B. that was not identified in the report issued pursuant to Section 7,A, shall be considered a new presence, or increased concentration or quantity of Hazardous Materials for the purposes of this section, 9, Default and Remedies. Failure or delay by either party to perform any term or provision of this Lease is a material default under this Lease, IfEVWD fails to pay any monetary obligation owed to the Agency under this Lease when it is due, the Agency may provide written notice ofthe monetary default to EVWD. IF EVWD does not cure the monetary default within 5 days of the mailing of the notice of default by the Agency, the Agency may terminate this Lease by written notice to EVWD, which shall be effective at the time of mailing by the Agency. If a party otherwise in default of a non-monetary obligation under this Lease commences to cure, correct or remedy such non-monetary default within 30 calendar days after receipt of written notice from the injured party specifying such default, and diligently and continuously prosecutes a reasonable cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Lease, then within said time limits), such party is not in default hereunder, A, The injured party must give written notice of the non-monetary default to the party in default, specifying the default complained of by the nondefaulting party, Delay in giving this notice is not a waiver of any default nor does it change the time of default. B. Any failure or delays by either party in asserting any of their rights and/or remedies as to any default does not operate as a waiver of any default or of any such rights or remedies. Delays by either party in asserting any of their rights and/or remedies do not deprive either party of its right to institute and maintain any actions or proceedings that it deems necessary to protect, assert or enforce any such rights or remedies, C, In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with this Lease, Any such legal actions must be instituted in the Superior Court of the State of California in and for the County of San Bernardino or any other appropriate court within the County of San Bernardino, or in the Federal District Court for the Central District of California located in the County of Riverside, California, 6 SB2oo1;1332.4 D. The rights and remedies of the parties set forth in this Section are cumulative and the exercise by either party of one or more of such rights or remedies does not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 10. Inspection, Upon reasonable notice to EVWD, the Agency has the right to inspect the Premises at reasonable times for compliance with any or all of the terms and conditions of this Lease. 11. Notices, Any notice to be given or other documents to be delivered by any party to another party or parties hereunder may be delivered in person to an officer of any party or may be deposited with the United States Postal Service within the State of California, duly certified or registered, return receipt requested, with adequate postage prepaid, or by Federal Express or other comparable express delivery service and addressed to the party for whom intended, as follows: To the Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attention: Executive Director With a Copy to: Lewis, D'Amato, Brisbois & Bisgaard, LLP 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Attention: Timothy J, Sabo To EVWD: 1155 Del Rosa Avenue P,O, Box 3427 San Bernardino, California 92413 Attention: General Manager All notices or other documents delivered in person to an officer of any party will be immediately effective and those deposited with the United States Postal Service for delivery, in accordance with this Section, will be effective 5 days following such deposit. 12, Construction of Lease, The agreements contained herein shall not be construed in favor of or against any party, but shall be construed as if all parties prepared this Lease, 7 SB2001 :1332.4 13, Headers. Titles and Captions. The headers, titles and captions used in this Lease are for convenience only and are not a part ofthis Lease and do not in any way limit or expand the terms and provisions hereof, 14, Governine Law. Jurisdiction and Venue. This Lease and the documents in the forms attached hereto as exhibits will be governed by and construed under the laws ofthe State of California, This Lease is deemed made and entered into in San Bernardino County, California, Any legal actions arising from or under the terms and provisions ofthis Lease must be brought in the Superior Court of the State of California in and for the County of San Bernardino, 15, Attornev's Fees, If any action is instituted by any party to this Lease against any other party or parties to this Lease in connection with this Lease, the party or parties prevailing in such action are entitled to recover from the losing party or parties all of its/their costs and expenses, including reasonable attorney's fees and costs, For the purposes ofthis Lease, the phrase "reasonable attorney's fees and costs" includes the salary, wages, benefits and overhead ofthe City Attorney of the City of San Bernardino and members of his staff, 16, Gender and Number, In this Lease, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another, 17, Entire Aereement. This Lease constitutes the entire agreement between the Agency and EVWD and may not be amended without the prior written consent of each of them, This Lease supersedes all prior negotiation, discussions and previous agreements between the parties concerning the subject matters covered herein, The parties intend this Lease to be the final expression of their agreement with respect to the subjects covered herein and a complete and exclusive statement of such terms, 18, Modification or Amendment. No modification, waiver, amendment, discharge, change or alteration of this Lease is valid, unless in writing and signed by each of the parties to this Lease, 19, Counterparts/Duplicate Orieinals, This Lease may be executed by the parties hereto in duplicate originals, each of which shall be considered an original, but all of which together shall constitute one and the same instrument. ~ 20, Severability, Every provision of this Lease is intended to be severable, If any provision of this Lease or the application of any provision hereof to any party or circumstance is declared to be illegal, invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity shall not affect the other terms and provisions hereof or the application of the provision in 8 S82ool:1332.4 question to any other party or circumstance, all of which shall continue in full force and effect. 21. Required Approvals, This Lease is not binding on the Agency, until signed by an authorized representative of EVWD, as evidenced by a certified copy of the resolution of the EVWD governing board approving and accepting this Lease attached to this Lease as Exhibit "C," approved by the Community Development Commission of the City of San Bernardino, as the governing body of the Agency, approved as to form by Agency Special Counsel and executed by the authorized representative of the Agency. 9 S8200 1: 1332.4 IN WITNESS WHEREOF, the Agency and EVWD have duly executed this Lease as of the dates set forth below. AGENCY Redevelopment Agency of the City of San Bernardino Date: By: Gary Van Osdel Executive Director APPROVED AS TO FORM: Agency Special Counsel EVWD East Valley Water District, a California public entity Date: By: Name: Title: 10 S82001 :1332.4 EXHffiIT A LEGAL DESCRIPTION OF THE PROPERTY PARCEL NO, 1: PORTION OF LOT 5, AS PER MAP OF SUBDIVISIONS OF FRACTIONAL SOUTHWEST 1/4 OF SECTION 19, TOWNSHIP 1 NORTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, KNOWN AS ZIMMERMAN SUBDIVISION, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 8 OF MAPS, PAGE 80, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT NORTH 45 DEG, WEST 135 FEET FROM THE SOUTHEAST CORNER OF LOT 5, OF SAID SUBDIVISION; THENCE NORTH 45 DEG, WEST ALONG THE NORTHERLY LINE OF THE MUSCUPIABE RANCHO 225 FEET; THENCE NORTH 71 DEG. EAST, 165 FEET; THENCE SOUTH 56 DEG, EAST, 50 FEET; THENCE NORTH 36 DEG, 30' EAST, 130,12 FEET; THENCE SOUTH 73 DEG. 36' EAST, 85,70 FEET; THENCE SOUTH 36 DEG, 43' WEST, 331 FEET TO THE POINT OF BEGINNING, EXCEPTING THEREFROM ANY PORTION THAT MIGHT BE INCLUDED IN PROPERTY GRANTED A. E. STERLING TRUSTEE, BY DEED RECORDED JANUARY 13, 1898, IN BOOK 248, PAGE 124, OF DEEDS, DESCRffiED AS FOLLOWS: BEING A STRIP OF LAND OFF THE SOUTHEAST CORNER OF LOT 5, ACCORDING TO A MAP OF A SUBDIVISION OF THE FRACTIONAL SOUTHWEST 1/4 OF SECTION 19, TOWNSHIP 1 NORTH, RANGE 3 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER SURVEY MADE BY J. M, PARSONS, JANUARY 16, 1892, SAID MAP BEING RECORDED IN BOOK 8 OF MAPS, PAGE 80 AND MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE EAST LINE OF SAID LOT 5 WITH THE NORTH LINE OF THE RANCHO MUSCUPIABE; THENCE ALONG SAID RANCHO LINE 135 FEET; THENCE NORTHERLY 331 FEET TO THE DITCH OF THE BEAR VALLEY IRRIGATION COMPANY; THENCE ALONG SAID DITCH 36 FEET TO THE EAST LINE OF SAID LOT 5; THENCE SOUTHERLY 380 FEET TO PLACE OF BEGINNING. ALSO EXCEPTING THEREFROM AN UNDIVIDED 28/30THS INTEREST IN AND TO THAT PORTION (CALLED WELL SITE) OF LOT 5 OF THAT CERTAIN SUBDIVISION KNOWN AS ZIMMERMAN SUBDIVISION, AS PER PLAT RECORDED IN BOOK 8 OF MAPS, PAGE 80, RECORDS OF SAID COUNTY DESCRIBED AS: COMMENCING AT THE NORTHWEST CORNER OF LOT 4, BLOCK 19, OF WEST HIGHLANDS, AS PER PLAT RECORDED IN BOOK 5 OF MAPS, PAGE 77, RECORDS OF 11 58200 I: 1332.4 SAID COUNTY, SAID POINT BEING IN THE MUSCUPIABE RANCHO LINE; THENCE ALONG SAID RANCHO LINE NORTH 45 DEG, 00' WEST, 221.12 FEET; THENCE NORTH 40 DEG, 25' EAST TO THE NORTHERLY LINE OF FOOTHILL DRIVE AS NOW LOCATED, 40 FEET WIDE, FOR THE TRUE POINT OF BEGINNING; SAID TRUE POINT OF BEGINNING BEING IN THE EAST LINE OF A PARCEL OF LAND CONVEYED TO BODIE FITE AND WIFE, RECORDED FEBRUARY 20,1946, IN BOOK 1865, PAGE 281, OFFICIAL RECORDS; THENCE NORTH 40 DEG. 25' EAST, 40 FEET; THENCE SOUTH 45 DEG. 00' EAST 25 FEET; THENCE SOUTH 40 DEG, 25' WEST, 40 FEET TO THE NORTHERLY LINE OF FOOTHILL DRIVE; THENCE NORTH 45 DEG. WEST, 25 FEET TO THE TRUE POINT OF BEGINNING. 12 SB2001:1332.4 EXHIBIT B HAZARDOUS MATERIALS DEFINED "Hazardous Materials" as used in this Indemnity shaU mean any hazardous or toxic materials, poUutants, effluents, contaminants, radioactive materials, flammable explosives, chemicals known to cause cancer or reproductive toxicity, emissions or wastes and any other chemical, material or substance, the handling, storage, release, transportation, or disposal of which is or becomes prohibited, limited or regulated, is or becomes known to pose a hazard to the health and safety of the occupants of the Property including, without limitation, (i) asbestos, (ii) petroleum and petroleum by-products, (iii) urea formaldehyde foam insulation, (iv) polychlorinated biphenyls, (v) aU substances now or hereafter designated as "hazardous substances", "hazardous materials", or "toxic substances" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U,S,C, Section 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Federal Water PoUution Control Act, 33 U,S,C, Section 1251 et seq" the Clean Air Act, 42 U,S,C, Section 7401 et seq" the Hazardous Materials Transportation Act, 49 U.S.C, Section 1801 et seq" or the Resource, Conservation and Recovery Act, 42 U,S.C. Section 6901 et seq,; (vi) aU substances now or hereafter designated as "hazardous wastes" in Section 25117 of the California Health and Safety Code; (vii) aU substances now or hereafter designated by the Governor of the State of California pursuant to the Safe Drinking Water and Toxic Enforcement Act of 1986 as being known to cause cancer or reproductive toxicity, or (viii) aU substances now or hereafter designated "hazardous substances", "hazardous materials" or "toxic substances" under any other federal, state or local laws or in any regulations adopted and publications promulgated pursuant to said laws, 13 SB2oo1 :1332.4 EXHffilT C RESOLUTION OF EAST V ALLEY WATER DISTRICT APPROVING AND ACCEPTING LEASE . < 14 582001: 1332.4 .