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HomeMy WebLinkAbout2012-054 ~ 1 RESOLUTION NO. 2012-54 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF TWO 3 LANDSCAPE MAINTENANCE SERVICES AGREEMENTS RELATIVE TO THE 4 PROPOSED ASSESSMENT DISTRICT NO. 1068 (TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE, DETENTION BASIN AND STORM DRAIN 5 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, two Landscape Maintenance Services Agreements, the 10 forms of which are attached hereto as Exhibit "I", HW SOUTHGATE, L.P., and Exhibit "2", 11 HW SOUTHGATE BLDG 3, LLC, and made a part hereof, relative to proposed Assessment 12 13 District No. 1068, known as the Tippecanoe A venue and Central A venue Area Landscape, 14 Detention Basin and Storm Drain Maintenance Assessment District, as set forth in the 15 Engineer's Report for said Assessment District, on file in the office of the City Clerk. 16 17 SECTION 2. Authorization to execute the Landscape Maintenance Services Agreements 18 is rescinded if the parties fail to execute them within ninety (90) days of the passage of this 19 Resolution. 20 1// 21 22 23 24 25 26 27 28 .. 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF TWO LANDSCAPE MAINTENANCE 2 SERVICES AGREEMENTS RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1068 3 (TIPPECANOE A VENUE AND CENTRAL A VENUE AREA LANDSCAPE, DETENTION BASIN AND STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT). 4 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a jnin~ ""g"1,,,. 12 13 14 15 16 17 18 meeting thereof day of March ,2012, by the following vote, to wit: AYES ABSTAIN ABSENT NAYS x JENKINS x VALDIVIA x SHORETT x KELLEY x JOHNSON x MCCAMMACK x 19 ~~/(h4U- 20 ~ Georgeann Hanna, City Clerk 21 f-. The foregoing resolution is hereby approved this ~l day of March ,2012. 22 23 24 25 26 27 ayor By: 28 AMES F. PENMAN, City Attorney 2012-54 RECORDING REQUESTED BY: City of San Bernardino 300 North "D" Street San Bernardino, CA 924 I 8 When Recorded, Mail To: City of San Bernardino Real Property Section, 3'" Floor 300 North "0" Street San Bernardino, CA 924 18 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Tippecanoe Avenue and Central Avenue Area) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance A~reement") is dated as of this day of , 2012, and evidences the agreement by and between (i) HW SOUTHGATE, L.P., a California limited partnership (the "Prooertv Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1068 (the "Assessment District No. 1068"), which property is the subject of this Maintenance Agreement (the "Prooertv"), 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 I. Obli~ations of Prooertv 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 ("Municioal Code Chaoter 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 Assessment District No. 1068. Exhibit "B" attached hereto and incorporated herein, reflects the boundaries of Assessment District No.1 068 and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Prooertv Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. AD 1068 - Maintenance Agreement Page I 2012-54 (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, Assessment District No. 1068 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. 1068, and the Property Owner shall pay the City the first year assessments for Assessment District No.1 068, 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. 1068. 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 Assessment District No. 1068 during the fiscal year of the City in which the default occurs and in each subsequent fiscal year thereafter. Such assessments (net of the 15% of costs along Tippecanoe Avenue and 10% of costs along Central A venue deemed to be the 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 among the nine (9) commercial parcels created by Parcel Map No. 17887, as recorded in Book 237 of Parcel Maps, Pages 66-73, in the office of the San Bernardino County Recorder, State of California.. (c) The City Engineer or his designee, has prepared the Engineer's Report for Assessment District No. 1068 dated October 25, 2011, on file with the City Clerk as File No. 14.40-167 (the "En1!ineers' Renort"). (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.1 068 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 Assessment District No. 1068. 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 Assessment District No. 1068. AD 1068 - Maintenance Agreement Page 2 2012-54 (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) (ii) 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 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 Ri~ht bv City En~ineer. (a) City Engineer shall mean the engineer for the City, or his/her designee. (b) In accordance with this 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 furnishing of 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 Mayor and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided) shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or furnishing of the services described in Section l(b) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with AD 1068 - Maintenance Agreement Page 3 2011-54 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 Assessment District No. 1068 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 part of the property covered by the Parcel Map No. 17887 described in the attached Exhibit "A" (the "Parcel Map Property"). The Parcel Map Property is currently composed of nine (9) separate parcels (each, a "Parcel"). If a Parcel is divided into one or more small subdivisions (each a "Lot") by Property Owner or any 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 I (b) above, the rights and remedies available to City including those AD 1068 - Maintenance Agreement Page 4 2012-54 set forth in this Agreement, may only be enforced against that owner and 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 Owner: HW Southgate, 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 Hillwood Development Company, LLC 5430 LBJ Freeway, Suite 800 Dallas, Texas 75240 Attn: Patricia Brown Edwards Fax: (972) 201-2889 (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 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 AD 1068 - Maintenance Agreement Page 5 2012-54 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 2012/2013 assessment to the Property Owner by the City pursuant to Assessment District No. 1068 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 ofthis 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. 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 AD 1068 - Maintenance Agreement Page 6 2012-54 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 Scooe and Limits oflnsurance. 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." (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 AD 1068 - Maintenance Agreement Page 7 2012-54 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 Partv Beneficiarv 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 prooffavoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy 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 Agreementis and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. AD 1068 - Maintenance Agreement Page 8 2012-54 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. 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. Section 24. Consent. Wells Fargo Bank, National Association, will consent to this Maintenance Agreement and the easements and rights created hereunder and will subordinate all liens and security interests against the Property securing any and all indebtedness owed to Wells Fargo Bank, National Association, to this Maintenance Agreement and to all easements and rights created hereunder as evidenced by the Consent and Subordination attached hereto. [Signatures Follow On Next Page] AD 1068 - Maintenance Agreement Page 9 2012-54 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: SEAL ATTE~. ~ .~ City Cle ~Z~ AMES F. PENMAN, City Attorney STATE OF CALIFORNIA COUNTY OF } S.S. On before me, Notary Public, 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 helshelthey executed the same in hislher/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person( s), or the entity on behalf of which the person(s) acted, executed the instrument. I certiJY under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL: Signature (signatures contioued on the following page) AD 1068 - Maintenance Agreement Page 10 2012-54 PROPERTY OWNER: HW SOUTHGATE, L.P., a California limited partnership By: DTC Phase II, LLC, a Delaware limited liability company its general partner By: Name: Title: STATE OF TEXAS ~ ~ COUNTY OF DALLAS ~ This instrument was acknowledged before me on , 2011, by of DTC Phase II, LLC, a Delaware limited liability company, on behalf of said limited liability company, in its capacity as general partner of HW Southgate, L.P., a California limited partnership, on behalf of said limited partnership. Notary Public, State of Texas AD 1068 - Maintenance Agreement Page 11 2012-54 Consent of Lender WELLS FARGO BANK, NATIONAL ASSOClA TION ("Agent"), hereby consents to and subordinates that certain Construction Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated March 25, 2008, and recorded on April 2, 2008, as Document No. 2008-0145378 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: Name: Title: WELLS FARGO BANK, NATIONAL ASSOCIATION By: Name: Title: STATE OF TEXAS ~ ~ ~ ss. COUNTY OF DALLAS This instrument was ACKNOWLEDGED before me on , 2012, by , 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 AD 1068 - Maintenance Agreement Page 12 2012-54 EXHIBIT "A" PROPERTY DESCRIPTION Parcel Map No. 17887 filed in Book 237, Pages 66-73 of Parcel Maps, in the office of the San Bernardino County Recorder, State of California, save and except, Lot B of Certificate of Compliance for Lot Line Adjustment No. LLA 11-02 recorded November 11, 2012, under Document No. 2011-0456118 in Official Records of San Bernardino County, California, and save and except Parcel 8 of said Parcel Map 17887. AD 1068 - Maintenance Agreement Page 13 2012-54 EXHIBIT "A-I" Lot Line Adjustment Map (LLA 11-02) ~ ~ ~ ~~~ ~ ~I~ ii I , i:1 ~~~~ ::1~~~ " ~~ 81 ~ ~ ~ ,I ,zi !~~I u~~ I iii! I I I I I I I I I I ~ :, II ,.., :ii/ll.tt.~-+-_ AD 1068 - Maintenance Agreement Page 14 2012-54 EXHmIT "B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained by the property owner will be landscaping and all appurtenances along portions of the easterly side of Tippecanoe Avenue south of Central Avenue, together with the northerly and southerly side of Central Avenue east of Tippecanoe Avenue, as further depicted on Exhibit "B-1". Page 15 AD 1 068 - Maintenance Agreement 2012-54 EXHIBIT "B-1" ASSESSMENT DIAGRAM f lll~i I It I Ii I I !hl! ! J Id~~li r~H I. 1111.11,1111 i[ IWUi,il , I l'i'III"1 I It I I' 'I I' f'l f, ill,l II hi fJil1 i 1,~iU'11 i I r Hlill ill h ~! ufJll' JI ~! ~ II 1I111f 'Il d 'J') ,i !Ilil I, I Ii I' ,! \111'111;,II! I! L 5" ~)u ~ .! g 138' U .I.sUh !J r-\ ...~ \ . I \'~ \ ~ \~...~., ~ \\..,,~\ ~ ~ \ ""~ ' !~t \ \ \,;. \ . ... ~~ \ \ "\ \ ~ ~ ~ Ii I ~\-//~,~. , g ~ hh ..~~\ \ \ \ ! ~ !Z; :ti ~ ~ ~ ~. \ \ .. \' \ ~li5 ~...~~.~ \ II ~\ ~n '" !Z; ~ ~ ~ ~ \ ' \ i~i. ~ ~ h B m \, . w I hot ~ ~ i~~~ \ '\,1-/// ~< I ~\ II ni ~~ ~.,\. {J \ ' \ -< ~~ .~ '\' I ~ \ \ \\ "I / U I \ \ ;. \...... \ <, ~ . \ .....\1 \!\ \ \ 'N'~\ 'I ;\. ' ..f I' .. 'j, \ \ \ \ I \1- I \\ , \--'~ '~~' \' \ \ \ ' \ ~\" \ ~ \ I ~ \ \ ,;,,,. lij ""'''"" - ~~- o B II ili III. ~ i ll~i Ii ~h hd , o~~ ~~~ I' 5< ~~~ lie I ! ! III II! 1111 iI . ~ ! ei II AD 1068 - Maintenance Agreement Page 16 2012-54 EXHmIT "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 ofthe day and for such durations to be determined based upon the season of the year. AD 1068 - Maintenance Agreement Page 17 ' Recorded in Official Records, County of San Bernardino 4111/2012 DENNIS DRAEGER 11:38 AM SS RECORDING REQUESTED BY - ,. ASSESSOR - RECORDER - CLERK AND WHEN RECORDED MAR DOCUMENT TO: P Counter r,,,,,E �� «� �� .��� o 000#: 2012-0137862 Tines: 1 Pages: 19 ADDRESS ue 30D N«K A.fN'LN A I II IIII II IIII II III VIII III II II III PRtDr so.ee as ME S 1 1 / �f 241 SPACE ABOVE FOR RECORDER'S USE ONLY Title of Document 1 TH Rlr_ i / M �1 7 f453 THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) 2012-54 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`d Floor 300 North"D"Street San Bernardino,CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Tippecanoe Avenue and Central Avenue Area) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of this _11_'r* day of y4P,ct, , 2012, and evidences the agreement by and between (i) HW SOUTHGATE,L.P., a California limited partnership(the"Property Owner"),as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1068 (the "Assessment District No. 1068"), which property is the subject of this Maintenance Agreement(the"Prop "),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 M., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of Assessment District No. 1068. Exhibit "B" attached hereto and incorporated herein,reflects the boundaries of Assessment District No. 1068 and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. AD 1068—Maintenance Agreement Page 1 2012-54 (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, Assessment District No. 1068 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. 1068, and the Property Owner shall pay the City the first year assessments for Assessment District No. 1068,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. 1068. 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 Assessment District No. 1068 during the fiscal year of the City in which the default occurs and in each subsequent fiscal year thereafter. Such assessments(net of the 15%of costs along Tippecanoe Avenue and 10%of costs along Central Avenue deemed to be the 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 among the nine (9) commercial parcels created by Parcel Map No. 17887, as recorded in Book 237 of Parcel Maps, Pages 66-73, in the office of the San Bernardino County Recorder, State of California.. (c) The City Engineer or his designee,has prepared the Engineer's Report for Assessment District No. 1068 dated October 25, 2011, on file with the City Clerk as File No. 14.40-167 (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. 1068 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 Assessment District No. 1068. 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 Assessment District No. 1068. AD 1068—Maintenance Agreement Page 2 2012-54 (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 ig neer. (a) City Engineer shall mean the engineer for the City, or his/her designee. (b) In accordance with this 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 famishing 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 furnishing of 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 Mayor and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided)shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or furnishing of 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 AD 1068—Maintenance Agreement Page 3 2012-54 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 Assessment District No. 1068 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 part of the property covered by the Parcel Map No. 17887 described in the attached Exhibit "A" (the "Parcel Map Property"). The Parcel Map Property is currently composed of nine (9) separate parcels (each, a "Parcel"). If a Parcel is divided into one or more small subdivisions(each a"Lot")by Property Owner or any 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 AD 1068—Maintenance Agreement Page 4 2012-54 set forth in this Agreement, may only be enforced against that owner and 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 HW Southgate, 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 Hillwood Development Company, LLC 5430 LBJ Freeway, Suite 800 Dallas, Texas 75240 Attn: Patricia Brown Edwards Fax: (972) 201-2889 (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 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 AD 1068—Maintenance Agreement Page 5 2012-54 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 2012/2013 assessment to the Property Owner by the City pursuant to Assessment District No. 1068 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. 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 AD 1068—Maintenance Agreement Page 6 2012-54 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." (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 AD 1068—Maintenance Agreement Page 7 2012-54 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 of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at anytime 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 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. AD 1068—Maintenance Agreement Page 8 2012-54 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. Authori . 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 Runnintz 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. Recordine. 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. Section 24. Consent. Wells Fargo Bank, National Association, will consent to this Maintenance Agreement and the easements and rights created hereunder and will subordinate all liens and security interests against the Property securing any and all indebtedness owed to Wells Fargo Bank,National Association, to this Maintenance Agreement and to all easements and rights created hereunder as evidenced by the Consent and Subordination attached hereto. [Signatures Follow On Next Page] AD 1068—Maintenance Agreement Page 9 2012-54 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 S CN BERNARDINO By / CHA . MC EELY, ity anger SEAL ATTEST: City Cle Approved as to Form: AMES F. PENMAN, City Attorney STATE OF CALIFORNIA� / COUNTY.� S.S. yOF / Jqn ��//1,lYsr/�d L} On ./' e2G ZO�z before me, i Notary Public,personally appeared who proved to me on the basis of satisfactory evidence to be the person( tose name(trris/aresubscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(iPaY and that by his/herAhaif signature(4 on the instrument the person(,W,or the entity on behalf of which the personwf acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. WITNESS m and anseal. SEAL: VALERIE R. MONTOYA N BERN # INO COUNTY 2 z Z NOTARY PUBLIC-CALIFORNIA3 SAN BERNARDINO COUNTY Signature My Comm.Expires Aug.2,2012 (signatures continued on the following page) AD 1068—Maintenance Agreement Page 10 2012-s6 PROPERTY OWNER: HW SOUTHGATE.L.P., a Cdfhmialimitedpmftom p 83: DTC Phew 17,LLC, a Ds4wea IhWW Habft compmq, ibd�P"rtoer Now M.Thomas Mason Tlft Frnrrntivp Vrn Pr Qidfmt STATE OF TMW § 4 COUNTYOFDALLAS ¢ mmumem was acknowww 6 " me m ( J �q, by I Yl .1 rvw,c fa1n•. GXCr uh Vt� DTC Phm 8, LW, a Delaware Hmbod Hd ty oampaq,m bdWaf add limbed 8abft=mp W,io ib aapWW ae. pemd parmar of HW Smb*%e,L.P..a Ca*cda limited puma*p,an bdWof Said limhad PAP• [awwrjEAN EITEO LFMM IbIl% taleofT=m em�rn+aucmAhamw 09-15-2012 AD 106{—MMSY wAp� Pye 11 2012-54 CONSENT AND SUBORDINATION The undersigned, WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, acting as agent for itself and each of the lenders party to a Loan Agreement (defined in the Deed of Trust [hereinafter defined]) ("Administrative Agent"), and the beneficiary under that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated March 9, 2012 (as modified, the 'Deed of Trust") executed by HW Southgate, L.P., a California limited partnership, as borrower ('"I'rustor"), to Chicago Title Company, as original Trustee, recorded on March 9, 2012, as Instrument Number 2012-0093269, Official Records of the County of San Bernardino, State of California, which replaced that certain Construction Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated March 25, 2008, recorded on April 2, 2008, as Document No. 2008-0145378 in the Official Records of San Bernardino County, California, released by that certain Full Reconveyance dated April 3,2012,recorded on April 9,2012,under Document No. 2012-0132972, hereby consents to the terms, provisions and conditions of the Agreement of Property Owner for Provision of Landscape Maintenance Services for City Imposed Landscape Maintenance Assessment District ("LMD") to which this Consent and Subordination is attached, and, subject to the terms and provisions of this Consent and Subordination, subordinates the lien and security interests of the Deed of Trust to the LMD, such that from and after the effective date of this Consent and Subordination, the terms, provisions and conditions of the LMD are and shall be prior and superior to the liens, security interest, terms and provisions of the Deed of Trust; provided, however, this Consent and Subordination: (i)shall not be construed or operate as a consent and subordination to any other amendment to or modification of the LMD, or a release of the lien and security interests of the Deed of Trust,but shall instead confirm that the lien and security interests of the Deed of Trust shall hereafter be upon and against all of the property subject to the Deed of Trust; and (ii) shall not modify or amend the terms and provisions of the Deed of Trust LENDER: WELLS FARGO BANK,NATIONAL ASSOCIATION a national banking association (as Administrative Agent for itself and each of the other Lenders r the Loan Agreear By: Print Name: ^L; Title: V%'c rG5 i 4,-t 2012-54 STATE OF T COUNTYOF j�aAlaS On hAl I LL, 2012, before me, �'1�I�L �� � Notary Public, PW ommy appeared Fvn u n 8 -Ad V t C4 1Si deA c,(!'N 15 T N•-/*. ,who proved to me on the basis of satisfactory evidence to be be person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/sbdthey executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatme(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. Signature My Commission Expires. * `�0 J� This area for official notarial seal Notary Notary Name: E7Q{l Phone: County of Principal Place of Notary Registration Business: Number: �cQS�]�'7Slo S e CIO/flJ>�EFR1 iwr"..wee es�-zoo e ��:! o«orsarera ner 2012-54 EXHIBIT"A" PROPERTY DESCRIPTION Parcel Map No. 17887 filed in Book 237, Pages 66-73 of Parcel Maps, in the Office of the San Bernardino County Recorder, State of California, save and except, Lot B of Certificate of Compliance for Lot Line Adjustment No. LLA 11-02 recorded November 11, 2012, under Document No. 2011-0456118 in Official Records of San Bernardino County, California, as shown on Exhibit"A-1" attached hereto, and save and except Parcel 8 of said Parcel Map 17887. 2012-54 EXHIBIT "A-1" Lot Line Adjustment Map (LLA 11-02) OR* a _ 41P Cd � a ° °"1-- s��iucili!wKna! tf ice/ I gQ tS!��p91 4Y E61 ��- 5 ` e Ent ' ° PRO nil p • Y #°# 241 ¢i U i21k n I I Y 'f0 SQZYY uy I I aaa �GGI I AD 1068—Maintenance Agreement Page 14 2012-54 EXHIBIT `B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained by the property owner will be landscaping and all appurtenances along portions of the easterly side of Tippecanoe Avenue south of Central Avenue, together with the northerly and southerly side of Central Avenue east of Tippecanoe Avenue, as further depicted on Exhibit`B-1". AD 1068—Maintenance Agreement Page 15 t 2012-54 EXHIBIT `B-1° ASSESSMENT DIAGRAM sill as 6 a s f e a is 9 !! 5 a �o HIS! N a n8x� s�if1 �t � �t Exeixttti� ey � z so At `n \ Z g i _ m31 Nvi \)mow I �O J 4 F I Z 3fINAV 130NtlJ3ddLL AD 1068—Maintenance Agreement Page 16 2012-54 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. AD 1068—Maintenance Agreement Page 17 Recorded in Official Records,County at San Bernardino 4/1112012 DENNIS DRAEGER e AN B RECORDING REQUESTED BY IF ASSESSOR — RECORDER — CLERK BS AND WHEN RECORDED MAIL DOCUMENT TO: P Counter aura c i'M _r SN-' 3coNAPor'O Dock: 2012-0137861 Titles: 1 Pages: 19 a 00 wET �3oSK g.m..rAy� oI Cwt IIIIII II IIII II IIIIIIIIIII IIIIII CRio6 $0.00 LP Con! 11.4% SPACE ABOVE FOR RECORDER'S USE ONLY Title of Document TH R R- S r , 1i i e THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) 2012-54 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`d Floor 300 North"D"Street San Bernardino,CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Tippecanoe Avenue and Central Avenue Area) THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of this 197* day of Alaral% , 2012, and evidences the agreement by and between (i) HW SOUTHGATE BLDG 3, LLC, a California limited liability company (the "Pro e Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No. 1068 (the"Assessment District No. 1068"),which property is the subject of this Maintenance Agreement(the"Pro a "),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 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 sue., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of Assessment District No. 1068. Exhibit `B" attached hereto and incorporated herein,reflects the boundaries of Assessment District No. 1068 and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. AD 1068—Maintenance Agreement Page 1 2012-54 (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, Assessment District No. 1068 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. 1068, and the Property Owner shall pay the City the first year assessments for Assessment District No. 1068,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. 1068. 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 Assessment District No. 1068 during the fiscal year of the City in which the default occurs and in each subsequent fiscal year thereafter. Such assessments(net of the 15%of costs along Tippecanoe Avenue and 10%of costs along Central Avenue deemed to be the 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 among the nine (9) commercial parcels created by Parcel Map No. 17887, as recorded in Book 237 of Parcel Maps, Pages 66-73, in the office of the San Bernardino County Recorder, State of California.. (c) The City Engineer or his designee,has prepared the Engineer's Report for Assessment District No. 1068 dated October 25, 2011, on file with the City Clerk as File No. 14.40-167 (the "Engineers' Reno "). (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. 1068 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 Assessment District No. 1068. 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 Assessment District No. 1068. AD 1068—Maintenance Agreement Page 2 2012-54 (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 ig neer. (a) City Engineer shall mean the engineer for the City, or his/her designee. (b) In accordance with this 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 furnishing of 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 Mayor and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided)shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or furnishing of 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 AD 1068—Maintenance Agreement Page 3 2012-54 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 Assessment District No. 1068 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 part of the property covered by the Parcel Map No. 17887 and Certificate of Compliance for Lot Line Adjustment 11-02 described in the attached Exhibit"A"(the "Parcel Map Property"). The Parcel Map Property is currently composed of nine(9)separate parcels (each, a "Parcel"). If a Parcel is divided into one or more small subdivisions (each a "Lot") by Property Owner or any 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) AD 1068—Maintenance Agreement Page 4 2012-54 above,the rights and remedies available to City including those set forth in this Agreement,may only be enforced against that owner and 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 HW Southgate Bldg 3, LLC, 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 Hillwood Development Company, LLC 5430 LBJ Freeway, Suite 800 Dallas, Texas 75240 Attn: Patricia Brown Edwards Fax: (972) 201-2889 (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 parry 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 has not provided an address for notice,any other parry 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. AD 1068—Maintenance Agreement Page 5 2012-54 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 2012/2013 assessment to the Property Owner by the City pursuant to Assessment District No. 1068 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. Section 11. Attorneys' Fees. In the event that litigation is brought by any parry in connection with this Maintenance Agreement,the prevailing party shall be entitled to recover from the opposing parry 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 AD 1068—Maintenance Agreement Page 6 2012-54 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." (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." AD 1068—Maintenance Agreement Page 7 2012-54 (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 of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy 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. Severabiliri. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in goad faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. AD 1068—Maintenance Agreement Page 8 2012-54 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. Recordine. 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. Section 24. Consent. JPMorgan Chase Bank, N.A., will consent to this Maintenance Agreement and the easements and rights created hereunder and will subordinate all liens and security interests against the Property securing any and all indebtedness owed to JPMorgan Chase Bank, N.A.,to this Maintenance Agreement and to all easements and rights created hereunder as evidenced by the Consent and Subordination attached hereto. [Signatures Follow On Next Page] AD 1068—Maintenance Agreement Page 9 2012-54 THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Properly 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: dRL N BE4NEELY, O . C I Man er SEAL `ATTEST: Georg nn Hanna, City Clerk Approved as to Form: fArACS F. PENMAN,City Attorney STATE OF CALIFORNIA Q / COUNTY OF �J Sn (U�/?f/�(n�y� / } S.S. On ///Iror�i i 2012' befo��rr/e//me, l�jliiG AL 1ios/, Z Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(oTwhose name(*is/are subscribed to the within instrument and acknowledged to me that he/shE/they executed the same in his/her/their authorized capacity(iesj,and that by his/her/their signatures4on the instrument the person(*);or the entity on behalf of which the person(eacted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. VALERIE R. MONTOYA WITNESSA hand and o ial seal. SEAL: g* CO M IM . 1808252 i NOTARlU L -CALWORNIAC SAN BERNARDINO COUNTY My Comm.Expires Aug.2,2012 Signature (signatures continued on the following page) AD 1068-Maintenance Agreement Page 10 2012-34 PROPERTY OWNER: HW SOUTHGATE BIRO 3,LLC, a California limited 66 ty company By. Noe: M.Thomas rdason Tick: Executive Vice Press ent STATE OF&SEA TixaS COUNTY OF SAWNWAMAMO I OS onJ�_gyJLJ 2012, 11- �( ytP1 �P_ �1 i�Ter .Noary Public, pe�saoafty appeased �'1 . 1 �[�YY1r.S flcrn who proved to me at the hub of satlahotory evidence to be the pasonWwbou nase(aJWms ubsa ibedtothewithin instrument and admowledged to medal boVielheymmuted the same in hislhadarkauthotisedapas ity(ks).aod*atbyhis&w hen signamraWan die instrument the penon(s);or the entity upon behalf of which the peeaon(eyacted, exeeused the hlstrusneat. T certify under PENALTY OF PERJURY under the laws of the Stew of Cie Ka'nTa that the foregoing paragraph Is hue and coned. WITNESS my hand and official semi. 116 NETTS OLNER amaanacmaaamm Z-\&.•'09$20'12 SigaU My Commies m Expires: 5 ( 2 TMi mrafbr o9kial normlal ital Notary Notary Nsmr Jenylr f 011ve- Phone: ZI�I - 10 -� 'S3 County of Principal Place of Number TI �l C7 Eaai"em. ,S AD 1069—M"m m Agreanmt Page i l 2012-54 Consent of Lender CONSENT AND SUBORDINATION The undersigned,JPMOROAN CHASE BANK,N.A.,a national banking association,in its capacity as Administrative Agent,forthe ratable benefit ofitself,the otherLenders(as defined inthe Loan Agreement)and each of JPMorgan Chase Bank,NA's affiliates that is a party to any Swap Agreements(together with each and every successor agent for the Lenders and such affiliates of JPMorgan Chase Bank,N.A.)C`jmIdd ),the beneficiary under that certain Construction Deed of Trust and Security Agreement(with Assignment ofRents)dated February 10,2012(as modified,the "Deed of Tnut"1 executed by HW Southgate Bldg 3,LLC,a California limited liability company,as owner and as borrower(collectively,"Tpg{Wj,to Chicago Title Insurance Company,as original Trustee,recorded on February 10,2012,as Instrument Number 2012-0056185,Official Records of the County of Sao Bernardino,State of California,hereby consents to the terms,provisions and conditions of that certain AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT by HW Southgate Bldg 3,LLC,a California limited liability company(the"jam n,and,subject to the terms and provisions of this Consent and Subordination, subordinates the lien and security interests of the Deed of Trust to the LMD Agreement,such that from and after the effective date of this Consent and Subordination,the terms,provisions and conditions of the LMD Agreement are and shall be prior and superior to the liens,security interest,terms and provisions of the Deed of Trust;provided,however,this Consent and Subordination: (i) shall not be construed or operate as a consent and subordination to any amendment to or modification ofthe LMD Agreement,or a release ofthe lien and security interests ofthe Deed ofTlust,but shall instead confirm that the lien and security interests of the Deed ofTrust shall hereafter be upon and against all ofthe property subject to the LMD Agreement;and(ii)shall not modify or amend the terms and provisions of the Deed of Trust. LENDER: JPMORGAN CHASE BANK,N.A., as A d as a Lender By; / -- Name: Title: Utcc Pig ;,leak AD 1068—Mainwamee Agreement Page 12 2012-54 STATE OF e V&-� COUNTY OF I Ia On 2012, before me, �kt r CC 14 Public, perso y appeared t A,i�b TpeYC�S S �Z :( (_ . -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. STEVEN PAUL CASANOVA W1TNE$$my hand and Off1Ci81 seal. Notary Public, State of Texas ., My Commission Expires February 24, 2013 Si Commiss on Expires. ( is area for glfictal notarial seal Notary Name �4eve� Pau. b:SI' ,n� L)ua NPotar ���{ q(P L105 ) County of i c�iQal Place of Notary Registration Business: I (lG� Number 2012-54 EXHIBIT "A" PROPERTY DESCRIPTION Lot B of Certificate of Compliance for Lot Line Adjustment No.LLA 11-02 recorded November 11, 2012, under Document No. 2011-0456118 in Official Records of San Bernardino County, California, w5 sti•wK •K 19)(WFi}%+-1" -t-V *11" h.P•lo . AD 1068-Maintenance Agreement Page 13 ai2-5; EXHIBIT"A-r yea«__ pc& !1-0a a � © | | $ § § & § § | fa ■[ / t ---- m § � � / � S ■q 2 k \ k § / � & � - o/ � � t \ \■ \ � % � � m � | � k - � . % J%� ■{ ` � K �• § \ ] t §k ,. �� ® ` t i . \° ` A } � c Al( . « m r ®- �����- AD 1068-Maintemmce Agreement Page 14 2012-54 EXHIBIT °B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained by the property owner will be landscaping and all appurtenances along portions of the easterly side of Tippecanoe Avenue south of Central Avenue, together with the northerly and southerly side of Central Avenue east of Tippecanoe Avenue, as further depicted on Exhibit`B-1". AD 1068—Maintenance Agreement Page 15 2012-54 EXHIBIT EB-1" ASSESSMENT DIAGRAM Eg 114 11 pai a I E d 3 9 . 91St FE11 g�Y is 8 a E anfiai a y bR Ftd aaFE gE �¢ � � 'gn 9 9 ffi as 9 8y��2 a ¢ ¢9 ♦S !j' i�b yggag£ ¢¢9 9 €�il� t 2 §d S`{i LL z 3 \ -- ivinn I O a bw� ,d I oo gS\\ •® 1N flag �I ROM A 7 §3 •• 1 \ y \ 3IINNV �301N]3d]LL AD 1068—Maintenance Agreement Page 16 r 2012-54 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. AD 1068—Maintenance Agreement Page 17