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HomeMy WebLinkAbout07.B- Public Works RESOLUTION(ID# 1485) DOC ID: 1485 B CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Nadeem Majaj M/CC Meeting Date: 03/19/2012 Prepared by: Ryan Sandoval, (909)384-5140 Dept: Public Works Ward(s): 1 Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing and Directing the Execution of a Landscape Maintenance Services Agreement Relative to the Proposed Assessment District No. 1068 (Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and Storm Drain Maintenance Assessment District) (Item Continued to February 21,2012; Item Continued to March 19, 2012) Financial Impact: The applicant has paid the$5,900 processing fee. Since this is a"default'district, in the event the property owners default and the City assumes the maintenance, the estimated costs of annual maintenance in the amount of$34,441.16, deemed to be a special benefit,will he assessed back to property owners within the Assessment District, and the estimated annual cost of maintenance in the amount of$3,568.65,deemed to be a general benefit,will need to be paid from the general fund,The actual general benefit amount will be determined and a source will need to be identified in the event the City does assume maintenance sometime in the future. The hearing was opened on February 21,2012. Motion: Close the hearing; and adopt Resolution. Synopsis of Previous Council Action: 02/06/2012 On February 6,2012,this item was continued to February 21,2012,due to some software related issues and the item could not be reviewed by Council. In the time of the continuance,the developer changed the legal entity name to one of the parcels within the district area, and therefore would also need to execute a Maintenance Agreement. The item was continued to March 19,2012,to allow for the addition of the new agreements. 12/05/2011 Authorization was given to proceed with the formation of the Tippecanoe Avenue and Central Avenue Area Landscape Maintenance Assessment Districts No. 1068 and Resolution of hitention No. 2011-319 was adopted. Backeround: On May 21, 2007, the Planning Commission approved Tentative Parcel Map No. 17887/Development Permit Type 2 No. 06-06, generally located easterly of Tippecanoe Avenue Updated:3/8/2012 by Linda Sutherland B 1485 on the northerly and southerly side of Central Avenue. On October 19, 2010, Hillwood QInvestment Properties, the developer/owner of this property, submitted a petition for the formation of a landscape maintenance assessment district ("District"), as required by the conditions of approval for the development of this site. The formation of this District will assess the special benefit costs of maintaining the landscaping, detention basin, storm drains and all appurtenances to the owners of the properties benefiting from the maintenance area. The areas to be maintained by the District will be landscaping and all appurtenances along portions of the north and south side of Central Avenue east of Tippecanoe Avenue; the east side of Tippecanoe Avenue, south of Central Avenue; the detention basin south of Central Avenue, located within Parcel 8 of Parcel Map No. 17887; the storm drain and all appurtenances connecting from the catch basins in Central Avenue to the detention basin; and the storm drain connecting from the detention basin and terminating at the Santa Ana River,all within the district boundaries. Currently, the boundary of the district contains a total of nine parcels of land, all within the boundaries of Parcel Map No. 17887, one of which is the detention basin and will receive no benefit as it will remain undevelopable. The annual cost of maintenance and incidentals will be spread across the remaining eight parcels receiving special benefit. Part of the formation proceedings includes the preparation of an Engineer's Report, which details the costs necessary to carry out the ongoing maintenance of the District and is attached for your review. As required by law, only special benefit may be assessed to properties within an assessment district. Any benefit found to be a general benefit may not be assessed to the District. As set forth in the Engineer's Report, the landscaping along Tippecanoe Avenue and Central Avenue has been deemed to be of a general benefit. The general benefit portion of the annual cost of maintenance is estimated to be $3,568.65 and cannot be assessed to the District. This amount will need to be paid from the general fund or other non-district fund source. As set forth in the Engineer's Report, the estimated total annual assessment, including all incidental expenses, is $34,441.16. Assessment units on commercial land are assigned to each parcel based on the number of 7,200 square foot single family lots that could be developed on the site if it were developed for residential use and gives a basis for calculating the assessment spread. In essence, each parcel is assessed in proportion of its size to the other parcels within the district. The Engineer's Report allows for annual increases of CPI (Consumer Price Index) or 5%, whichever is less, to cover increases in maintenance costs. Increases over this amount will either need to be approved by the property owners within the District, or be paid for by the City. The developer/owner has requested this Landscape Maintenance Assessment District to be a "default" district, where the property owner will be maintaining the landscaping along Central Avenue and Tippecanoe Avenue, but the City or designated contractor will maintain the detention basin and storm drains, which those maintenance costs will be assessed to those parcels within the district. The Assessment District will assume maintenance of the landscaping in the event of default of the maintenance by the owner. However, the City will collect the first year's Updated:3/8/2012 by Linda Sutherland B — Packet Pg.477 1485 maintenance cost, which will be held in reserve in the event that the City has to take over the © maintenance. A resolution approving the execution of the Maintenance Agreement has been prepared and is attached for the Council's action. i On December 5, 2011, Resolution of Intention No. 2011-319 was adopted, setting a public hearing for February 6, 2012, and preliminarily approving the Engineer's Report. Notice of the hearing and assessment ballots were mailed to the owner of record. Since the developer still owns all of the parcels, a majority protest is not anticipated. Future property owners will purchase the parcels subject to the Assessment District and will be given disclosure of the District and assessments by the developer or subsequent property owners, as required by law. At the conclusion of the hearing, the results of the assessment ballots returned will be submitted. Ballots are weighted in proportion to the assessment amount. The formation of the district requires that the ballots returned in support for the proposed district exceed the ballots returned in opposition to the proposed district. A majority opposition to the formation of the district is not anticipated. All future buyers will be given a disclosure notice by the developer, advising them of the existence of an assessment district and the proposed annual cost. The Maintenance Agreement will need to be considered prior to the adoption of the resolution creating the Assessment District, which will require a four-fifths (4/5) affirmative vote of the Council members voting thereon. City Attorney Review: .Supporting Documents: Combined Item with ID 1486(TXT) 7B-C -Attachment B -RCA Attach-Engineers Report REV 2011-10-25 - Southgate (PDF) RCA Attach- Engineers Report-Exhibit 1 -Vicinity Map (PDF) 7B-C -Attachment D -RCA Attach-Engineers Report-Exhibit 2 -Boundary Map (PDF) 7B-C-Attachment E-RCA Attach-Engineers Report-Exhibit 3 -Diagram Map (PDF) 7B-C -Attachment F-RCA Attach-Engineers Report-Exhibit 4-Notice of Exemption(PDF) 7B-C -Attachment G-RCA Attach-Engineers Report-Exhibit 5 -Proposed AD Roll (PDF) **OLD** RESOLUTION-Maintenance Agreement AD 1068 (PDF) Updated:3/8/2012 by Linda Sutherland B 1485 **OLD** Exhibit 1 - Southgate LMD Default Agreement (PDF) **OLD** Original- Southgate LMD Default Agreement (PDF) **NEW** RESOLUTION-Maintenance Agreement-AD 1068 (PDF) j **NEW** Exhibit 1 -Maint Agmnt-HW SOUTHGATE (PDF) **NEW** Exhibit 2 -Maint Agmnt-HW SOUTHGATE BLDG 3(PDF) **NEW** Original Maint Agmnt-HW SOUTHGATE (PDF) **NEW** Original Maint Agmnt -HW SOUTHGATE BLDG 3 (PDF) Updated:3/8/2012 by Linda Sutherland B Packet Pg. 479 T.B.a 1844 This item should be combined with 1D 1486 (Public Hearing) and be heard together at the council meeting. c 0 E w v rn Q c 'm rn c d Z u a fL a ao m 0 a N K a m a m m v 0 r .3 E d v d c 'a E 0 U C m L u A Q Page 1 P�igKEg�ded "' ENGINEER'S REPORT n for co 0 ASSESSMENT DISTRICT NO. 1068 0 (Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and a Storm Drain Maintenance Assessment District) a In the N W a CITY OF SAN BERNARDINO COUNTY OF SAN BERNARDINO STATE OF CALIFORNIA 0 v v s 0 0 ���OF,tLNARD�Np�<i N N O O N z > 1 W r a w p o �DG�DED IN ix ti d d c c W t U F a a File No. 14.40-167 Ix m c CITY OF SAN BERNARDINO E DEPARTMENT OF PUBLIC WORKS a U Prepared October 25, 2011 m d E L �... PUBLIC WORKS COF a 1 Packet Pg.481 7.B.b i Engineers Report—AD 1068 ENGINEER'S REPORT for o ASSESSMENT DISTRICT NO. 1068 0 0 FILED in the office of the City Clerk of the City of San Bernardino on the day of ,2011. a ix N L it CITY CLERK n City of San Bernardino c 0 .y PRELIMINARY approval by the Mayor and Common Council of the City of San Bernardino, County of San 'm Bernardino, State of California on the_day of — 2011. CD M rn L 0 O N CITY CLERK City of San Bernardino 0 0 FINAL approval by the Mayor and Common Council of the City of San Bernardino,County of San Bernardino, x State of California on the day of 2012. o a 0 N d m CITY CLERK S City of San Bernardino w` r u I HEREBY CERTIFY that the foregoing assessments,together with the Diagram of Assessment District No. 1068, a were approved and confirmed by the Mayor and Common Council of the City of San Bemardino,County of San 4 Bernardino, State of California on the_day of 2012. Ix in c m E L V CITY CLERK City of San Bernardino U m n c S E r m tr a 2 Packet Pg. 482 7.B.b Engineers Report—AD 1068 Q CITY OF SAN BERNARDINO a DEPARTMENT OF PUBLIC WORKS a' 0 ENGINEER'S REPORT °a N ASSESSMENT DISTRICT NO. 1068 a (Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and Storm Drain Maintenance Assessment District) e PETITION--On October 19,2010,a petition was received from the owner or the developer representing the owner of property within the proposed assessment district for the establishment of an assessment district for the `o maintenance of landscaping areas along Central Avenue, Tippecanoe Avenue, a detention basin south of Central H Avenue and the storm drain connecting to the detention basin and terminating at the Santa Ana River. These rr improvements are relative to the proposed development within Parcel Map No. 17887.The signatures on the petition m represent 100%of the property owners of the parcels within the proposed boundaries of the district.This petition W was the result of a requirement placed upon the developer of Parcel Map No. 17887 by the City to relieve the City 5 from having to maintain the areas of landscaping. N AUTHORIZATION -- On 2011,by action of the Mayor and Common Council c of the City of San Bernardino,the Director of Public Works and City Clerk were authorized to initiate proceedings for the formation of Assessment District No. 1068 (Tippecanoe Avenue and Central Avenue Area Landscape, c (' Detention Basin and Storm Drain Maintenance Assessment District)pursuant to the provisions of San Bernardino j 1w City Municipal Code Chapter 12.90 and this Report has been prepared and is hereby submitted pursuant to said lux, provisions and in accordance with Resolution of Intention No. adopted by the Mayor and c Common Council of the City of San Bernardino on the_day of 2011. d rc ADVANCE OF ESTIMATED COSTS OF PROCEEDINGS--On October 20,2010,pursuant to Section m 12.94.030 of the Municipal Code, the developer deposited $5,900 with the City to cover the estimated cost of as proceedings.At the conclusion of the proceedings and after confirmation of all costs,any amounts remaining will be w` returned to the developer. If actual costs are more than the deposit,then the remainder can either be paid in a lump r sum by the developer or assessed against the properties involved. a EASEMENTS—All areas to be maintained will be within City owned property,dedicated right of way,or within easements granted to the City for maintenance purposes and no maintenance will be carried out on private property. m c m DESCRIPTION OF IMPROVEMENTS— E L - The improvements to be maintained by the District will be landscaping and all appurtenances along portions m of the north and south side of Central Avenue east of Tippecanoe Avenue, and the east side of Tippecanoe a Avenue, south of Central Avenue; and, u - The detention basin and all appurtenances south of Central Avenue,located within Parcel of Parcel Map m No. 17887; and, - Two catch basins located within Central Avenue east of the detention basin, the storm drain and all E appurtenances connecting to the catch basins along the north side of Central Avenue, which travels west x 3 i JI Engineers Report—AD 1068 towards Tippecanoe Avenue and crosses south under Central Avenue and terminates at the detention basin; n © and, ' a - The storm drain and all appurtenances connecting to the detention basin and terminating at the Santa Ana oc River, all within the District boundaries. c 0 a Maintenance of the detention basin will consist of periodic cutting of native vegetation and removal of debris and N silt as needed. Maintenance of the storm drains will consist of periodic removal of debris and silt,which includes z the use of a vacuum truck and replacement of any appurtenant equipment related to such storm drains. .n PLANS AND SPECIFICATIONS--Plans and Specifications for the landscaping have been prepared by the developer according to the standards of the City and is subject to final approval by the City prior to the installation of any landscaping. 0 .y DESCRIPTION OF BOUNDARIES -- The boundaries of the proposed district are shown on the .� Assessment Boundary Map of Assessment District No. 1068 and are generally described as follows: a, m The centerline of Tippecanoe Avenue on the west, and the northerly, easterly, and southerly t boundary lines of Parcel Map No. 17887 on the north, east and south respectively. $ T VICINITY MAP--A vicinity map showing the general location of the proposed Assessment District is N attached as Exhibit"1". ° DISTRICT BOUNDARYMAP--A proposed District Boundary Map has been prepared and is on file in the office of the City Clerk. A reduced copy of the District Boundary Map is attached as Exhibit"2". Lu c DISTRICT DIAGRAM--A proposed Diagram of the Assessment District has been prepared and will be n filed with the City Clerk after preliminary approval of this Report and will be filed with the County Recorder and z recorded in the office of the City Engineer after final approval of this Report,confirmation of the Assessment Roll 2 and Resolution Ordering Work. A reduced copy of the Assessment District Diagram is attached as Exhibit"3". C c NOTICE OF EXEMPTION--a"Notice of Exemption"declaring a Categorical Exemption was prepared w and will be filed with the Clerk of the Board of Supervisors of San Bernardino County upon formation of the District.No further environmental proceedings will be necessary.A copy of the Notice of Exemption is attached as a Exhibit"4" a U K METHOD OF ASSESSMENT AND DETERMINATION OF BENEFIT—Landscaping and its proper ro maintenance enhances the esthetics of any given area and the benefit received by the owners of properties in the area c is determined to be equal to the area of each lot or parcel that utilizes the landscaped areas either as ingress and E egress or by actual physical use of the land as in the cases of large open areas. The boundaries of the proposed district are drawn with this in mind and the Resolution of Intention delineates the specific areas of maintenance, a which will benefit all of the properties within the boundaries. The benefit received by each lot or parcel is proportional to the area of each lot or parcel in relation to the total area within the District boundaries. Since the o0 proposed development for this area is commercial use,assessment units are assigned to each lot or parcel based on the number of single family residential units that could be built if the area were developed for residential use,based m © on the minimum lot size of 7,200 square feet as set forth in the City's General Plan.Thus,each lot or parcel area(in r U W Q 4 Packet Pg. 484 7.B.b Engineers Report—AD 1068 ® square feet)is divided by 7,200 to determine its assigned assessment unit or portion thereof.(7,200 Square Feet= 1 a Assessment Unit). Based upon the commercial parcels proposed to be developed,the total assessment units for the a' district will be 887.43. m 0 The benefit received by the parcels within the boundaries of the district is determined to be of more than ordinary a public benefit,thus each parcel within the district being assessed receives a special benefit from the improvements. N If property not within the boundaries of a district also receives some benefit from the improvements,consideration must then be given to ageneral benefit given by the improvements,which may not be assessed to the parcels within the district.Since the installation and maintenance of the landscaping and establishment of an assessment district for the maintenance of the landscaping is specific and incidental to this development,it is further determined that the e improvements to be maintained by the assessment district are of special benefit to the district only and are 100% assessable to the parcels within the boundaries of the assessment district,except as follows: 0 y 1. Areas of maintenance that front on major arterial streets,as determined by the Circulation Plan of the City's General Plan,are determined to be 15%general benefit and the proportional costs thereof are not 0 assessable to the District. rn L 2. Areas of maintenance that front on secondary arterial streets,as determined by the Circulation Plan of moo the City's General Plan,are determined to be 10%general benefit and the proportional costs thereof are not assessable to the District. N 0 3. Areas of maintenance that front on collector streets,as determined by the Circulation Plan of the City's S © General Plan, are determined to be 5% general benefit and the proportional costs thereof are not w assessable to the District. z C 4. Areas that front on local streets are determined to be 100%special benefit and are 100%assessable to 0. the District. z N d *These percentages are based on the traffic circulation for the various street classifications. c .W c Based on the City of San Bernardino's current circulation element of its General Plan,this portion of Tippecanoe w Avenue is designated as a maior arterial street and this portion of Central Avenue is designated as a secondary arterial street. Thus 15%of the cost of landscaping maintenance and appurtenances along Tippecanoe Avenue and a 10%of the cost of landscaping maintenance and appurtenances along Central Avenue,is deemed to be of general < benefit and not assessable to the lots within the Assessment District. m m Publicly owned lands within the Assessment District,if any,are subject to assessments,unless they receive to no benefit with the exception of public right of way, which is not subject to assessments. E L v METHOD OF FINANCING--The estimated cost of the first year's maintenance shall be assessed against R the properties involved within the current fiscal year or the fiscal year following the establishment of the district. a Depending upon when the costs are assessed and when the actual maintenance is assumed by the City,this assessed m amount can be used as a source of pre-funding the first year's maintenance contract and incidental costs. Once the City has assumed the responsibility for the maintenance, the properties may be assessed in advance each year E © thereafter to establish a source of pre-funding each year's costs, or may be assessed for the actual contract and u m a 5 ' Packet Pg.485 Engineers Report—AD 1068 u Oincidental costs plus interest.Interest will be included in the assessment costs for any amounts or portions not pre- a funded through previous assessments. If there is a surplus from the estimated assessment in the event costs are pre- a' funded through previous assessments,any such surplus shall be applied as a credit to the following year's assessment or placed in a reserve fund to cover future increases or maintenance until such reserves are depleted. The assessment,whether pre-funded or not,shall be levied,collected and enforced in the same manner,at the same time, a and with the same penalties and interest as in the case of taxes levied for property taxes. Table 1 sets forth the w estimated costs of the first year's maintenance. No Bonds will be sold relative to this Assessment District. CL W ASSESSMENT SPREAD -- The amount of each Assessment Unit is determined by dividing the total maintenance costs,including all incidentals,by the total number of assessment units, as determined by the above Method of Assessment.Each parcel in the district is then assessed based upon the total number of Assessment Units calculated for that parcel. o 2 ASSESSMENT ROLL--Parcel Map No. 17887 recorded 12/13/2010,which created 9 commercial parcels, � with 7,200 sq. ft. representing 1 assessment unit as described under Method of Assessment, and assessments are spread accordingly. No further subdivision of the parcels is anticipated. An Assessment Roll representing the w estimated first year's maintenance costs has been prepared and is shown as Exhibit"5". Any parcels remaining vacant,or not being subdivided,will be assessed based on the number of residential lots that could be built pursuant o to the City's existing General Plan. N N FUTURE APPORTIONMENTS--In the event that the assessment units,as determined under Method of Assessment, change for any parcel(s)during the term of the Assessment District, the assessment amount for that o parcel(s)will change accordingly. Any increases based solely on change in parcel size,land use or density,which would result in an increase of assessment units, will not be subject to a public hearing as long as the formula for rc determining the assessments as described is applied. Pursuant to Chapter 12.90 of the San Bernardino Municipal o Code, such reapportionment's do not require the recording of an amended Diagram Map. rX FUTURE INCREASES--Due to the nature of landscape maintenance;it is anticipated that there will be m future increases in assessments as contract,labor,water and energy costs are all subject to future increases.Annual c increases may be increased without further notice or public hearing by a percentage equal to the increase in the c Consumer Price Index (CPI) for all Urban Consumers in the Los Angeles-Orange County-Inland Empire area, Lu published by the United States Department of Labor, Bureau of Labor Statistics over the previous year, or 5%, whichever is less. The CPI is typically used for maintenance districts.The rate varies from year to year,but in no R event will an increase, if needed,exceed 5% without a majority approval of property owners in the district. z m c d E L qu F Q U m n c d E L Q 6 7.B.b Engineers Report—AD 1068 U © TABLE I a a' ESTIMATED FIRST YEAR'S COST SUMMARY 0 ASSESSMENT DISTRICT NO.1068 0 (Tippecanoe Avenue and Central Avenue Area Landscape,Detention Basin and Q Storm Drain Maintenance Assessment District) rn w Description of Costs Quantity Unit CoWlAit Annual Cost IL A NUntemarre of Tort/Irrigation - 0.201 $ - B Maittanarce of Grmmdcover Mmbs/Irnigation 37,981 S4FL 0.201 $ 7,596.25 C Maintenance of Trees/Irrigation 164 Ea 50.001 $ 8,200.00 r- O IANDS(AFEAREA SUBTOTAL:(A+B) 31,981 E Irrigation Casts(water and ) 37,981 SqFL 0.10 $ 3,798.13 c F Detention Basin V ion Abatement/Slope Repair 1 LS. $ 1,500.00 D Detention Basin NIArtenance Cost-25 Cabic Yams(Estimated a G based on four(4)storm events a yea) 1 LS. - $ 5,640.00 m Storm DrainMaintemance Cast-(Estimated based on four(4) m m N storm events a yea) 1 LS. - $ 6,772.80 3 I TOTAL MAINIENANCEARE9:(D+F) 37,982 Scl.R. 0 N J Wedcly Inspection paboywertnead)(Total Annual EIrs) 52 Harr 30.00 $ 1,560.00 K Amoal A ssat.Engineering(labor+owxbead) 5 Etas 33.00 $ 165.00 c,+ L Catrnct Adrirsbation Qabw+metnead) 15 Hours 72.00 $ 330.00 ° M InddentaLs(materials,supplies,olbar costs) 1 LS. 100.00 $ 100.00 N Outside Department Senices(labw+uvedrearb 1 LS. 400.00 $ 400.00 N O Subtotal(A Own N) $ 36,062.18 w P General Benefit Calculations: O -Area of General Benefit(Certrd Avenue) 32,967 SqFL 0 R Perot of Total Area (Q/1) 86.80% S Subtotal (O*R) $ 31,300 y T General Benefit Pereen 1 d d U General Bent Amount Not Assessable(S*T) $ 3,130.04 $ (3,130.04) E m V -Area of General Benefit(7SppecmrceAvenue) 5014 SqFL w W Percentof Total Area (V/I) 13.20% X Subtotal ((O-F-G-H)*VO $ 2,914.08 m Y Geneal Benefit Percentage 15 Q Z General Benefit Amount Not Assessable(X* $ 438.61 $ (438.61 Q AA Subtotal(0+U+Z) $ 32,493.52 U tr BB Estimated Interest For non mfunded anrormts* $ 1.949.61 CC Subtotal(AA+BB) $ 34,443.13 m DD Adjustment(Rounding for Assessment RAO $ (1.97) E E TOTAL FUM YEAR'S ESTIMATED COSTS(T+U) $ 34,441.16 Q ASSESSMENT CALCULATION -- Applying the Method of Assessment and Assessment Spread described above, the a following formula is used to determine the assessment amount per Assessment Unit: ap n Total Costs .' Total Assessment Units= Cost per Assessment Unit a Thus E $34,441.16-887.43=$38.81 per Assessment Unit per year. 7 Packet Pg.487 Engineers Report—AD 1068 © ENGINEER'S STATEMENT a ao m 0 This Report,together with the Assessment District Boundary Map,Assessment Diagram and Proposed Assessment N Roll has been prepared and is being filed pursuant to and in compliance with Chapter 12.90 of the San Bernardino z IL Municipal Code and also in compliance with the requirements set forth in Article XMD of the California a Constitution for the establishment of Assessment District No.1068(Tippecanoe Avenue and CentralAvenue Area Landscape Detention Basin and Storm Drain Maintenance Assessment District). 2 m m W r 0 0 N N N O_ Date Robert Eisenbeisz, City Engineer 0 N W CL C O a m Vi W d C C W s n a a U K to c m E L U A Q U CO r C U [� E V L U Q 8 7.B.b Engineers Report—AD 1068 U_ C a a' List of Exhibits 0 0 a fA 1.Vicinity Map..................................................... Exhibit I" a w 2. Reduced copy of Boundary Map....................... Exhibit "2" 0 3. Reduced copy of Assessment District Diagram Exhibit"3" 0 4. Copy of"Notice of Exemption.......................... Exhibit "4" v 5. Proposed Assessment Roll(FY 2012/2013)...... Exhibit "5" m rn L O N h N O O N 1 W K O a v K m v v c c W L U N a a U m c v E L U R Q U 00 c v E © L U Q l� Packet Pg. 489 7.B.c df/ `r• c m y� w 6 � e a E ° c R m .@ 18 W `m 15 m S U B 4 aoth St. 330 i rp Marshall Blvd. s 0 a — 210 N Highland Ave. � 3 c IN a C m € N Base Line St w 3" v a sm St m 2 5th St. 'E Rialto Ave. n 15 a > Mill St. U C Central Nve. 210 ;p Orange how Rd. t r x W O 10 LOCATION OF PROPOSED ASSESSMENT DISTRICT W 7N VICINITY MAP NO. 1068 t U N NTS Q Q U EXHIBIT "1" d E CITY OF SAN BERNARDINO PUBLIC WORKS DEPARTMENT PROPOSED TIPPECANOE AVENUE AND CENTRAL i REAL PROPERTY SECTION AVENUE AREA LANDSCAPE, DETENTION BASIN AND a Nsweria STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT -ASSESSMENT DISTRICT NO. 1068- ® Indicates un4noorporated areas within City's Sphere of Influence Created bV: Ryan Sandoval Packet Pg.490 1PPECANOE AVENUE p � \ N�) —� N �bl 4 I IZ a\ �n O m m n II ICI n \� imo III I i - / �'\� m j N 5 y §§ Q z m ° c o�oi m l o o m y $3 '30 0 a o i ° n 0 ilI z Ng X11 a ®� a mZ Z O ' 201U TAIN IEW A E \ o� O m fr•=�'y� K G 195. ,1 \ \ xig mxZ �s \\ ` o•, o 1 m W \ c olzm37 9 N pp pp y33y g¢' s Of NN�R33 ¢ F N z q nm S ppN I l FIR EXHIBIT "2" TIPPECANOE AVENUE $ d � 0 ez I g, i � 1 V I � 3 Z O D i II m Z a \, � � 9 II A A 'z:4 m y IrA D m rA D z o :m I C �- \ z �, r> y V1 3m o 0. I zKAo nO � � � W� pTyp it I I I y O y Iry z w yy I` 2i �S7jI �o �6 IZ 'oo � � F � rJ Y o >m t ® FA- MOU TAIN IEW A E C > " O a Icy i 3 S l�"F �Y$ °g 9� � H� 4 �34m YY co $ g C Y Cma "4 a§" s Haig $ pYp � $ 9 3 '3. 58$ a s Mzq g $ gS 'ms'gg 9g B � Y'� p 5 n S 4 ` o mpm�4 �w; Id'3 A ur aa. S t sa n �mg°�. 3"s3 gI3'Fgg�$e3g �$ 3Sm$os s � I u s 's all 3 Y � �?a IIaS�d a $ ngSg S B EXHIBIT 'T' :.:..17.B.f' CITY OF SAN BERNARDINO PUBLIC WORKS DEPARTMENT u NOTICE OF EXEMPTION 0 0 a FROM: CITY OF SAN BERNARDINO TO: OFFICE OF PLANNING AND RESEARCH N PUBLIC WORKS DEPARTMENT 1400 TENTH STREET, ROOM 121 300 N. "D"STREET SACRAMENTO,CA 95814 a K SAN BERNARDINO, CA 92418 X CLERK OF THE BOARD COUNTY OF SAN BERNARDINO a 385 NORTH ARROWHEAD AVENUE SAN BERNARDINO,CA 92415 c 0 Project Title: ASSESSMENT DISTRICT NO. 1068 An d Project Location-Specific: TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE, 0 DETENTION BASIN AND STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT .a E Project Location-City: SAN BERNARDINO Project Location-County: SAN BERNARDINO x w w Description of project: SBMC 12.90 PROCEEDINGS FOR THE ESTABLISHMENT OF A LANDSCAPE o v U MAINTENANCE ASSESSMENT DISTRICT o z a a Xx W Name of Public Agency Approving Project: CITY OF SAN BERNARDINO 0 0 Name of Person or Agency Carrying out Project: CITY OF SAN BERNARDINO o- m tY Exem t Status: (check one) Ministerial(Sec.21080(b)(1);15268); m ❑ Declared Emergency(Sec.21080(b)(3);15269(a)); ❑ Emergency Project(Sec.21080(b)(4);15269(b)(c)); ER Categorical Exemption.State type and section number: Class 1 15301(c) Res.90-217.Sec. B2c w ❑ Statutory Exemptions.State code number: t v Reason why project is exempt: ESTABLISHMENT PROCEEDINGS FOR ASSESSMENT DISTRICT TO Q PROVIDE FUNDING SOURCE FOR MAINTENANCE OF LANDSCAPING U LL Lead Agency d Contact Person: RYAN SANDOVAL Area Code/Telephone/Extension: (909) 384-5226 E r U If filed by applicant: ;9 1. Attach certified document of exemption finding. Q 2. Has a notice of exemption been filed by the public agency approving the project? ❑ Yes❑ No U m n Signature: Date: Title: Real Property Specialist c ®Signed by Lead Agency ❑Signed by Applicant Date received for filing at OPR: E z U A a EXHIBIT "4" ev LIN packet Pg.493 CITY OF SAN BERNARDINO PROPOSED 2 t `S 2012 / 2013 ASSESSMENT ROLL -AD 1068 a TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE,DETENTION BASIN AND STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT c Assessment No. Parcel No.or Lot No. Assessment Amt. N 1 0136-361-30 $511.52 2 0136-361-31 $1,183.32 N 3 0136-361-32 $1,864.04 v 4 0136-361-33 $5,350.73 .. 5 0136-361-34 $11,814.93 0 6 0136-371-38 $9,607.80 2h 7 0280-251-65 $3,587.60 8 0280-251-66 $0.00 0 It 9 0280-251-67 $521.22 p Q TOTALS: 9 Parcels $34,441.16 v v 0 0 0 0 a` N ® a t x w t: 0 a m N d d C C W t U M Q Q U K C7 c m E s U A Q U m r t d ' ^ L [v. U R Q 1068 12012 EXHIBIT °5" Page I of I PacketPg.494 r E 1 RESOLUTION NO. o, a 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY S OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF 2 3 A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE c 4 PROPOSED ASSESSMENT DISTRICT NO. 1068 (TIPPECANOE AVENUE AND E CENTRAL AVENUE AREA LANDSCAPE, DETENTION BASIN AND STORM = 5 DRAIN MAINTENANCE ASSESSMENT DISTRICT). a 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE a ' CITY OF SAN BERNARDINO AS FOLLOWS: ao 0 8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized 4 9 and directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, 10 the form of which is attached hereto as Exhibit"1"and made part hereof, relative to proposed N 11 v Assessment District No. 1068, known as the Tippecanoe Avenue and Central Avenue Area 12 Landscape, Detention Basin and Storm Drain Maintenance Assessment District,as set forth in o 13 N 14 the Engineer's Report for said Assessment District,on file in the office of the City Clerk. d 15 SECTION 2. Authorization to execute the Landscape Maintenance Services c 16 Agreement is rescinded if the parties fail to execute it within ninety (90) days of the passage Q c 17 of this Resolution. E 18 E 19 v 20 d 21 'm 22 Z 23 0 24 0 N 25 it 26 0 27 c 28 E a Packet Pg.495 i i Y C d E m RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 1 AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE Q SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1068 2 (TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE,DETENTION BASIN AND o 3 STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT). w c 4 d I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 - a 6 and Common Council of the City of San Bernardino at a meeting a' 7 thereof,held on the_day of 2012,by the following vote,to wit: o 8 °a Council Members: AYES NAYS ABSTAIN ABSENT rn 9 W 10 MARQUEZ E 0 11 JENKINS 12 BRINKER 13 SHORETT H — 5 14 KELLEY 15 m 0 JOHNSON 16 a 17 MCCAMMACK w E 18 m a 19 Rachel G. Clark, CMC,City Clerk $ m 20 The foregoing resolution is hereby approved this day of 2012. d 21 a 22 z Patrick J.Moms,Mayor O 23 City of San Bernardino D ' 24 0 Approved as to form: w 25 JAMES F. PENMAN, W 26 City ttomey o o 27 By' ! c 28 1 v u a i i S I EXHIBIT "1" Q RECORDING REQUESTED BY: c E City of San Bernardino y 300 North"D"Street 0 San Bernardino,CA 92418 Q c When Recorded,Mail To: rn c City of San Bernardino m Real Property Section,3"'Floor = 300 North"D"Street o San Bernardino,CA 92418 a 0 AGREEMENT OF PROPERTY OWNER o FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES a FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT a (Tippecanoe Avenue and Central Avenue Area) N CO THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE N ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of this day o © of 2012, and evidences the agreement by and between (i) HW SOUTHGATE,L.P.,a California limited partnership(the"PronertY 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 E "Pro p as more fully described in Exhibit"A"attached hereto and incorporated herein,and(ii) m the CITY OF SAN BERNARDINO, a municipal corporation and charter city of the State of a California(the m THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY o" HEREBY AGREE AS FOLLOWS: J Section 1. Obligations of Property Owner. o t (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions w 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 2 within agreed upon areas of Assessment District No. 1068. Exhibit "B" attached hereto and w incorporated herein,reflects the boundaries of Assessment District No. 1068 and describes the areas c thereof that are the subject of this Maintenance Agreement which are intended to be maintained by p the Property Owner (the "Property Owner Maintenance Areas'). Assessment District No. 1068 includes no property other than the Property. d E C r U Q AD 1068—Maintenance Agreement Page 1 Packet Pg.497 (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 m assessment district"for which the City shall forebear the collection of assessments for the Property R 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 a Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall o consider the Property Owner Maintenance Areas to be treated the same as any other property within c the other landscape maintenance assessment districts in the City for which an annual assessment is a 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 Q 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 a 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 F each subsequent fiscal year thereafter. Such assessments(net of the 15%of costs along Tippecanoe c 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) c commercial parcels created by Parcel Map No. 17887, as recorded in Book 237 of Parcel Maps, d E Pages 66-73, in the office of the San Bernardino County Recorder, State of California.. rn a (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 w d "Engineers' Report"). 0 (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 w "Administrative Costs"),which are described in the Engineer's Report and the formation documents for Assessment District No. 1068. a t LU X O m E ` s Q AD 1068—Maintenance Agreement Page 2 PacketPg.498.. Q Section 2. Landscape Maintenance. c N E (a) The Property Owner recognizes that the City has initiated and completed proceedings d 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. M of (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: 2 a (i) the maintenance and servicing by the City of any landscaping within the a Property Owner Maintenance Areas. As used herein,the words"maintenance o and servicing"mean and refer to the furnishing of services and materials for c the ordinary and usual maintenance of the landscaping,including providing a for the growth,health, cultivation,irrigation,trimming,spraying,fertilizing or treating for disease or injury,the removal oftrimmings,rubbish,debris and a other solid waste,including appurtenant contract administration,inspection and incidentals thereto, all as more extensively set forth in Exhibit "C" v attached hereto and incorporated by this reference as if set forth fully herein; and r c 0 o (ii) incidental costs associated with the maintenance and servicing described in _^ d 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. d a Section 3. Termination Right by City Engineer. m w (a) City Engineer shall mean the City Engineer for the City,or his/her designee. o C3 f (b) In accordance with this Section 3(b)herein,the City shall have the right to terminate -' m 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 6 the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior t'o� 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 a 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 w default(subject to prudent seasonal planting practices),the City(if such termination is fast approved c by the Mayor and Common Council as hereinafter provided) shall have the right at any time p 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 m termination is first approved by the Major and Common Council as hereinafter provided)shall also E a AD 1068—Maintenance Agreement Page 3 PacketPg.499 �^ 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 E Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a m hazardous safety situation in the professional opinion of the City Engineer, following at least 48 I hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and Common Council at a duly held and noticed public meeting, wherein the Mayor and Common Council shall be presented with the facts and circumstances of any alleged default together with any u 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 a hereunder by the Property Owner,and upon the expiration of the applicable notice period without an o adequate cure having been completed,no further official action shall be required by the Mayor and c Common Council for such termination to be effective. Upon the termination of this Maintenance Agreement by the City,the City shall thereupon no longer deem any portion of Assessment District U 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 W. amount against the Property as provided in this Maintenance Agreement. e (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 o G 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. E d m (d) Unless waived by the City Engineer,at his sole discretion,the Property Owner shall a only be permitted to have two defaults determined by the Mayor and Common Council pursuant to w this Maintenance Agreement,which may be cured by the Property Owner. Unless so waived by the w City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior o defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so C3 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 rn 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 N 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, a 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 w necessity of having given the Property Owner a notice of default and cure opportunity with respect to c such subsequent default. o (e) The Property is currently composed of nine(9)separate parcels(each,a"Parcel"). I£ d a Parcel is divided into one or more small subdivisions (each a"Lot")by Property Owner or any r © U a AD 1068—Maintenance Agreement Page 4 Parke Pg.500 7.B.i successor in interest,the obligations of this Agreement shall be apportioned among the owners(each O an"Owner")of each Lot in proportion to the area of each Lot. In the event of a default by an Owner E of one Lot or Parcel, including any obligations pursuant to Section 1(b) above, the rights and d remedies available to City including those set forth in this Agreement,may only be enforced against 4 that owner and its interest in the Lot or Parcel upon which the default occurred. q 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 u dispatched by messenger for immediate personal delivery,or by registered or certified United States a 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 o to the principal office of the parties, as applicable, as designated below. c To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North"D" Street v San Bernardino,California 92418 N To Property HW Southgate, L.P., o Owner: c/o Hillwood Development Company,LLC "- C268 West Hospitality Lane, Suite 105 San Bernardino,CA 92408 Attn: John M. Magness E Fax: (909) 382-0073 m a and Hillwood Development Company,LLC 5430 LBJ Freeway, Suite 800 w° m Dallas,Texas 75240 0 Attn: Patricia("Patty")Brown Edwards f Fax: (972) 201-2889 d m 0 (b) Such written notices,demands and communications may be sent in the same manner 5 to such other addresses as either party may from time to time designate as provided in this Section. w 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 a such return receipt,on the day that it is dispatched by messenger for immediate personal delivery,the K date sent by FAX and confirmed by First Class United States Mail or two calendar days after it is a+ placed in the United States Mail or personal delivery as heretofore provided. 0 0 (c) Either party may change its address for notice by giving written notice of such change " d to the other party not less than ten days prior to the effective date of such address change. If a party E U a 1 AD 1068—Maintenance Agreement Page 5 Packet Pg. 501 7.B.i 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. E d d Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its a 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 o assessment lien and independently pursuing judicial remedies for the enforcement of any assessment Z lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable a California law. c 0 Section 6. Tent of Agreement. This Maintenance Agreement shall remain in full force a and effect for a term of 30 years and shall terminate,unless terminated sooner as permitted in this Cn Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. N W 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 v 1 of the Engineer's Report. `o_ y 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 E known to the City Engineer. m m a 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 w persons because of their race, religion, color, national origin, ancestry, age, physical handicap, c" medical condition,marital status,sexual gender or sexual orientation,except as pemutted pursuant to °g Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. o r Section 10. Entire Agreement Amendment and Termination. This Maintenance 0 N 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 a Maintenance Agreement shall prevail over any inconsistent provision in any other contract document x appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance w Agreement may be amended or terminated only by written agreement, signed by the parties in o interest at the time of such amendment or termination,except as also provided in Section 3 regarding p termination. c v Section 11. Attorneys' Fees. In the event that litigation is brought by any party in t © u AD 1068—Maintenance Agreement Page 6 © connection with this Maintenance Agreement,the prevailing party shall be entitled to recover from c the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the E0 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 Cn and members of his office in connection with that action,shall be considered as"attorneys'fees"for the purposes of this Maintenance Agreement. R m Section 12. Governing Law. This Maintenance Agreement shall be governed by and 0 0 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 u Maintenance Agreement,the parties hereto agree that the sole and exclusive venue shall be a court of B competent jurisdiction located in San Bernardino County, California. �o 0 Section 13. Indemnification and Hold Harmless. Property Owner shall protect,defend, c 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 v performance of this Maintenance Agreement. N Section 14. Insurance o V (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: d E (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 d aggregate. 0 f (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. 0 0 N (iii) Workers' compensation insurance as required by the State of California. a (b) Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: LU 0 (i) Additional insured: "The City of San Bernardino and its elected and 0 appointed boards,officers,agents,and employees are additional insured with mrespect to Property Owner's performance under this Agreement with City." E m AD 1068—Maintenance Agreement Page 7 Packet Pg. 503 7.B.i © (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." d d (iii) Other insurance: "Any other insurance maintained by the City of San a Bernardino shall be excess and not contributing with the insurance provided by this policy." m (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. o a 3 (d) Non-limiting. Nothing in this Section shall be construed as limiting in any way,any o indemnification provision contained in this Agreement,or the extent to which Property Owner may c be held responsible for payments of damages to persons or property. o 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. v Section 16. Headings. Paragraphs and subparagraph headings contained in this R Maintenance Agreement are included solely for convenience and are not intended to modify,explain `o 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. c Section 17. Construction. The parties have participated jointly in the negotiation and E 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 z be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of 2 d any of the provisions of this Maintenance Agreement. o 0 Section 18. Waiver. The delay or failure of either party at any time to require performance v 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 n 0 representative of the party against whom enforcement of waiver is sought. The waiver of any right IL 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 K waiver. W 0 Section 19. Severability. Every provision of this Maintenance Agreement is and shall be p 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 d for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be L 7 U 1 Q j AD 1068-Maintenance Agreement Page 8 i Packet Pg. 504 I i 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, E notwithstanding such invalidity or unenforceability. E m 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. E 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 u behalf of said parties and that by doing so,the parties hereto are formally bound to the provisions of a a this Maintenance Agreement. 0 Section 22. Covenant Running with the Land. The provisions of this Maintenance o Agreement shall run with the Property and any portion thereof or interest therein, and shall be Q binding upon and inure to the benefit of all persons having or acquiring any interest in the Property V) or any portion thereof,and their respective successive owners and assigns. a W Section 23. Recording. The City Clerk shall cause a copy of Us 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. N c 0 y [Signatures Follow On Next Page] E m d M a w 0 0 J U R 01 t 0 O N 1 a X K w 0 J 0 C U E U Q AD 1068—Maintenance Agreement Page 9 Packet Pg. 505 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 E the date set forth in the introductory paragraph hereof. m CITY: City of San Bernardino m x U By: EXHIBIT COPY CHARLES E. MCNEELY, City Manager o 0 D Q SEAL n: tY ATTEST: EXHIBIT COPY N RACHEL CLARK,City Clerk `_ C > Approved as to Form: E E m m EXHIBIT COPY a JAMES F. PENMAN,City Attorney w d ❑ 0 J N R O) t 0 O N (signatures continued on the following page) s L W J O C U (� E Fq �.+ L v Q AD 1068—Maintenance Agreement Page 10 PacketPg. 506 7.B.i Q PROPERTY OWNER: w E HW SOUTHGATE, L.P., a California limited partnership a c By: DTC Phase 11,LLC, a Delaware limited liability company its general partner d x EXHIBIT COPY a By: a' Name: Title: O — o ❑ a u� a STATE OF TEXAS § v § COUNTY OF DALLAS § c 0 © This instrument was acknowledged before me on 2011, by of DTC Phase 11, 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 £ m partnership. artnershi w m a_ A Notary Public, State of Texas o ❑ J d N L 0 O N a s X W J ❑ C d E G L U r Q AD 1068-Maintenance Agreement Page 11 Consent of Lender E WELLS FARGO BANK,NATIONAL ASSOCIATION("Agent"),hereby consents to and d 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 f Maintenance Agreement. c E WELLS FARGO BANK,NATIONAL ASSOCIATION,as = agent for and on behalf of Wells Fargo Bank,National Association and any and all other financial institutions a identified in an Intercreditor Agreement executed by Agent and such Lenders o 0 By: J. Kent Howard L Senior Vice President v WELLS FARGO BANK, NATIONAL ASSOCIATION N c 0 © BY > J. Kent Howard � Senior Vice President 0 E STATE OF TEXAS § § ss. a COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on 2011,by J.Kent o Howard,the Senior Vice President of Wells Fargo Bank,National Association,a national banking association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions(collectively,"Lenders")identified M in an Intercreditor Agreement executed by Agent and such Lenders. Z 0 T [SEAL] a z X My Commission Expires: W Notary Public, State of Texas o J Q Printed Name of Notary Public c m E © L u Q AD 1068—Maintenance Agreement Page 12 7.B.i © EXHIBIT"A" d d PROPERTY DESCRIPTION c Parcel Map No. 17887,filed in Book 237,Pages 66-73 of Parcel Maps, in the office of the San ai Bernardino County Recorder, State of California. `- m x U_ a c CL 0 O Q N K a tY w v N G O Mn C d d N W J w d O J d l0 T t 0 O vl a_ t x W J G d E © L U Q AD 1068—Maintenance Agreement Page 13 Packet Pg. 509 EXHIBIT `B" E PROPERTY OWNER MAINTENANCE AREAS m c 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 rn northerly and southerly side of Central Avenue east of Tippecanoe Avenue,as further depicted on E Exhibit`B-1". i v B 0 a co 0 Q to a N W C N C O 2 C U E m d rn m v J U A L 0 O N a L X W ❑ J (1 C d E ® L U Q AD 1068—Maintenance Agreement Page 14 Packet Pg. 110 i 7.8.1 O EXHIBIT "B-1" E ASSESSMENT DIAGRAM w IOLA 111 m a is eras bx�l a ^t IE' l i a a ljl8 k U �ll .- sa g$lnt i 5 EIFIg i 3 BFI a$ $ $ $ ;I$ His lei Ho i w� g a \ h oig � n 0 3 0 \ \ \ m O oz Yy 6a C IV M3 Mryl !MW gg I # { k7 ccz I it F _ Q �ai w H _ 0 ri a� NI y v — — — --v Uau E t(,✓ U a AD 1065—Maintenance Agreement Page 15 Packet Pg. 511 7.B.i EXHIBIT"C" c �f PROPERTY OWNER MAINTENANCE STANDARDS d The Property Owner hereby agrees to maintain the landscaping located within the Property Owner a 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 'o 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. a The Property Owner shall maintain the landscaping improvements as required by this Maintenance a Agreement in a condition,as reasonably determined by the City Engineer,or his authorized designee, o consistent with the then current standards for landscape maintenance within other City landscape o assessment districts on file in the office of the City Engineer. ¢ N K 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, v 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. N c 0 .N C d E v v rn m `w ❑ ! m m s_ 0 0 w 9 L X W ❑ J (7 C E i � A j AD 1068—Maintenance Agreement Page 16 Packet Pg. 512 7.B.j © RECORDING REQUESTED BY: c v City of San Bernardino 300 North"D"Street M San Bernardino,CA 92418 Q c When Recorded,Mail To: m c City of San Bernardino v Real Property Section,3'd Floor x 300 North"D"Street U San Bernardino,CA 92418 IL ro ° AGREEMENT OF PROPERTY OWNER ° FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES a FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT w o: (Tippecanoe Avenue and Central Avenue Area) m 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 day o © of 2012, and evidences the agreement by and between (i) HW ;u 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 E "Pro ),as more fully described in Exhibit"A"attached hereto and incorporated herein,and(ii) v the CITY OF SAN BERNARDINO, a municipal corporation and charter city of the State of 2 California(the w THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY c HEREBY AGREE AS FOLLOWS: f J Section 1. Obligations of Property Owner. s (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions w 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 seq.,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 0 incorporated herein,reflects the boundaries of Assessment District No. 1068 and describes the areas o thereof that are the subject of this Maintenance Agreement which are intended to be maintained by o the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. d ^ E V s U Q AD 1068—Maintenance Agreement Page 1 Packet Pg. 513 (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 E hereto and incorporated herein,Assessment District No. 1068 shall be considered to be a"default m assessment district"for which the City shall forebear the collection of assessments for the Property a 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 o forbear the collection of the fast 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 u 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 a 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 o the other landscape maintenance assessment districts in the City for which an annual assessment is a 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 a City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting W 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 o O 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.. m m (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 d "Engineers' Report"). o 0 (d) Beginning with the second year assessments and during the remaining term of this v 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 m "Administrative Costs"),which are described in the Engineer's Report and the formation documents for Assessment District No. 1068. c H 0 0 J C d E r u Q AD 1068—Maintenance Agreement Page 2 Packet Pg. 514 7.B.j Q Section 2. Landscape Maintenance. E (a) The Property Owner recognizes that the City has initiated and completed proceedings d to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below a for the maintenance and servicing of public landscaping improvements on the Property Owner c Maintenance Areas situated within Assessment District No. 1068. m m (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: 2 a (i) the maintenance and servicing by the City of any landscaping within the a Property Owner Maintenance Areas. As used herein,the wards"maintenance and servicing"mean and refer to the furnishing of services and materials for o the ordinary and usual maintenance of the landscaping,including providing a for the growth,health,cultivation,irrigation,trimming,spraying,fertilizing or treating for disease or injury,the removal of trimmings,rubbish,debris and a 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 C 0 (ii) incidental costs associated with the maintenance and servicing described in 2 subparagraph (i), above, including the costs associated with (1) the ix preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this E Maintenance Agreement. v m Section 3. Termination Right by City Engineer. a m (a) City Engineer shall mean the City Engineer for the City, or his/her designee. o 0 (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 0 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 s expiration of such 30-day notice and cure period,in the event the Property Owner has not cured the 0 default(subject to prudent seasonal planting practices),the City(if such termination is first approved o by the Mayor and Common Council as hereinafter provided) shall have the right at any time o 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 E 0 a AD 1068—Maintenance Agreement Page 3 Packet Pg. 515 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 E Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a d hazardous safety situation in the professional opinion of the City Engineer, following at least 48 rn a 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 R 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 u 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 n 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,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 a regular periodic landscape maintenance and seek collection of the annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. v (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 o 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 c Maintenance Agreement or for any interpretation of this Maintenance Agreement. E m d (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 w City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior o 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 n 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, c 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 O necessity of having given the Property Owner a notice of default and cure opportunity with respect to 0 such subsequent default. 0 i (e) The Property is currently composed of nine(9)separate parcels(each,a"Parcel"). If d i a Parcel is divided into one or more small subdivisions (each a"Lot') by Property Owner or any ' � z AD 1068—Maintenance Agreement Page 4 Packet Pg. 516 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 d d of one Lot or Parcel, including any obligations pursuant to Section 1(b) above, the rights and „ remedies available to City including those set forth in this Agreement,may only be enforced against rn a that owner and its interest in the Lot or Parcel upon which the default occurred. c Section 4. Notices and Communications. m (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 u 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 a 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. o a To City: City of San Bernardino N City Engineer a City Hall,Third Floor 300 North"D"Street San Bernardino, California 92418 To Property HW Southgate,L.P., o Owner: c/o Hillwood Development Company,LLC 268 West Hospitality Lane, Suite 105 San Bernardino, CA 92408 Attn: John M. Magness E Fax: (909) 382-0073 a m and Hillwood Development Company, LLC 5430 LBJ Freeway, Suite 800 R Dallas,Texas 75240 0 Attn: Patricia('Patty") Brown Edwards Fax: (972) 201-2889 d m (b) Such written notices,demands and communications may be sent in the same manner t 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 "c such return receipt,on the day that it is dispatched by messenger for immediate personal delivery,the .2) date sent by FAX and confirmed by First Class United States Mail or two calendar days after it is O placed in the United States Mail or personal delivery as heretofore provided. o 0 (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 E C L U Q AD 1068—Maintenance Agreement Page 5 has not provided an address for notice,any other party may deliver notice to such party at the address shown as the address for the owner of the property in question in the county tax records. m E d d Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its a 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 9 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 v assessment lien and independently pursuing judicial remedies for the enforcement of any assessment 3 lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable a California law. 0 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 a hereof. n N W 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. o © 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 E known to the City Engineer. w m Section 9. Non-discrimination. In performing this Maintenance Agreement, Property a Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of 'm persons because of their race, religion, color, national origin, ancestry, age, physical handicap, c medical condition,marital status,sexual gender or sexual orientation,except as permitted pursuant to f Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. s Section 10. Entire Agreement, Amendment and Termination. This Maintenance n 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 °c Maintenance Agreement shall prevail over any inconsistent provision in any other contract document .m appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance O Agreement may be amended or terminated only by written agreement, signed by the parties in o interest at the time of such amendment or termination,except as also provided in Section 3 regarding o termination. d ® Section 11. Attorneys' Fees. In the event that litigation is brought by any party in E U Q AD 1068—Maintenance Agreement Pugc G Packet Pg. 518 7.B.j 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 a and members of his office in connection with that action,shall be considered as"attorneys'fees"for c the purposes of this Maintenance Agreement. m 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 0 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. a m ° 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 °a 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, L III all civil claims or workers' compensation claims, arising out of or in any way connected with the W acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 14. Insurance 0 An (a) Minimum Scone and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: " c v (i) Comprehensive general liability, including premises-operations, E 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 °m aggregate. o 0 (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 8 single limits,per occurrence and aggregate. r 0 0 (iii) Workers'compensation insurance as required by the State of California. u' m S (b) Endorsements. The comprehensive general liability insurance policy shall contain or p) be endorsed to contain the following provisions: o 0 (i) Additional insured: "The City of San Bernardino and its elected and o appointed boards,officers,agents,and employees are additional insured with respect to Property Owner's performance under this Agreement with City." d E C U a AD 1068—Maintenance Agreement Page 7 Packet Pg. 519 (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." m E m m (iii) Other insurance: "Any other insurance maintained by the City of San a Bernardino shall be excess and not contributing with the insurance provided S by this policy." S m (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. U a (d) Non-limiting. Nothing in this Section shall be construed as limiting in any way,any n 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. ° 0 a 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 a incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. v Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify,explain o or to be a full or accurate description of the content thereof and shall not in any way affect the G' meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and E drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or d 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 <c be no presumption or burden of proof favoring or disfavoring any party by virtue ofthe authorship of 'm any of the provisions of this Maintenance Agreement. o 0 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 s this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized o 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 6 remedy with respect to any other occurrence or event,nor shall any waiver constitute a continuing 81 waiver. O �I a Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be o 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 d for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be E U a AD 1068-Maintenance Agreement Page 8 Packet Pg.520 7.6.) © 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, E notwithstanding such invalidity or unenforceability. m a Section 20. Counterparts. This Maintenance Agreement maybe 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. o c 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 v behalf of said parties and that by doing so,the parties hereto are formally bound to the provisions of this Maintenance Agreement. a ° Section 22. Covenant Running with the Land. The provisions of this Maintenance ° Agreement shall ran with the Property and any portion thereof or interest therein, and shall be a binding upon and inure to the benefit of all persons having or acquiring any interest in the Property n or any portion thereof, and their respective successive owners and assigns. a o! 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. c 0 .N A [Signatures Follow On Next Page] E m v m a v 0 0 J d A L 3 O N c O J G O L U N Q AD 1068—Maintenance Agreement Page 9 Packet Pg. 521 7.B.j 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 m a CITY: c m City of San Bernardino c m S U By: j CHARLES E.MCNEELY,City Manager a m u, 0 a SEAL a ATTEST: v RACHEL CLARK,City Clerk o ("�; A V Approved as to Form: E E v m a JAMES F. PENMAN, City Attorney w d ❑ J d m m L O (signatures continued on the following page) N m c O 0 J C d E u a AD 1068-Maintenance Agreement Page 10 PacketPg. 522 7.B.j © PROPERTY OWNER: E HW SOUTHGATE,L.P., d a California limited partnership a E By: DTC Phase 11,LLC, a Delaware limited liability company its general partner m x U By. o' Name: Title: 0 0 a y a o! STATE OF TEXAS § § v COUNTY OF DALLAS § R c o This instrument was acknowledged before me on 2011, by 3 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 E partnership. d m M M Notary Public, State of Texas o 0 J N R s L_ 0 O N A C O J O C U E ® S u Q AD 1068—Maintenance Agreement Page 11 Packet Pg. 523 © Consent of Lender E0 E WELLS FARGO BANK,NATIONAL ASSOCIATION("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. IM •c WELLS FARGO BANK,NATIONAL ASSOCIATION, as i agent for and on behalf of Wells Fargo Bank,National u Association and any and all other financial institutions 0 identified in an httercreditor Agreement executed by Agent a and such Lenders e 0 O a By: J. Kent Howard a Senior Vice President WELLS FARGO BANK, ° NATIONAL ASSOCIATION c O © By: J.Kent Howard Senior Vice President c m E STATE OF TEXAS § § ss. o a COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on 2011,by J.Kent o Howard,the Senior Vice President of Wells Fargo Bank,National Association,a national banking association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions(collectively,'Lenders")identified m in an Intercreditor Agreement executed by Agent and such Lenders. 3 O f/7 [SEAL] c My Commission Expires: 0 Notary Public, State of Texas o 0 Printed Name of Notary Public c d E s C u a AD 1068—Maintenance Agreement Page 12 '''packet Pg.524 I 7.B.j EXHIBIT "A" E m PROPERTY DESCRIPTION m a c Parcel Map No. 17887, filed in Book 237,Pages 66-73 of Parcel Maps, in the office of the San E in Bernardino County Recorder, State of California. E d x _U a 3 a m 0 O a U3 w a N M V C O C N C E E m v m `w 0 0 J N O) L 3 O N N G O J J O c E E L © u AD 1068—Maintenance Agreement Page 13 Packet Pg. 525 EXHIBIT "B" c E0 E PROPERTY OWNER MAINTENANCE AREAS m 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 a northerly and southerly side of Central Avenue east of Tippecanoe Avenue,as further depicted on ° Exhibit`13-1". _ v a a m m 0 0 Q N K a z a c 0 c E E m a m m d Q 0 I J I O) I L O N C W O I O E L � � Q F AD 1068—Maintenance Agreement Page 14 Packet Pg.526 1 7.B.j © EXHIBIT "B-l" E ASSESSMENT DIAGRAM d rn a A lit ,6111� ���°; $i #gy p} 1 j g q tt {g dal EF r6ai� aY FF n�A jf y { e d 8 Y = n$ey�ay�l$@ A � v F pi pf e d IF 8 ?nSF� 63{g �E Y tSE sa3IF;fFF$a $E e � � � c m t OU O \ � Va6 {�� A J-^ ` YM3 NIYl IIOW O zp < o \ re < ik 4 m Iz i 3 rn Fi \� _ 3 ml y S t\ C 1 O l ` ❑ \ NB \ t 1 `\ C _ W E L U a AD 1068—Maintenance Agreement Page 15 PacketPg. 527 EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS E w v 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 o 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. u a 3 The Property Owner shall maintain the landscaping improvements as required by this Maintenance a 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 o assessment districts on file in the office of the City Engineer. a N All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as a 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. c 0 EzN U C U E m d m m `w ❑ J U M O7 S 0 O I? m C M O 0 J O c v E ® c U a AD 1068—Maintenance Agreement Page 16 PacketPg.528 C 0 1 RESOLUTION NO. d 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF a SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF TWO 3 LANDSCAPE MAINTENANCE SERVICES AGREEMENTS RELATIVE TO THE 2 4 PROPOSED ASSESSMENT DISTRICT NO. 1068 (TIPPECANOE AVENUE AND c CENTRAL AVENUE AREA LANDSCAPE, DETENTION BASIN AND STORM DRAIN 5 MAINTENANCE ASSESSMENT DISTRICT). _ u a 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY a' 7 OF SAN BERNARDINO AS FOLLOWS: m �o 0 8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and a 9 directed to execute on behalf of the City, two Landscape Maintenance Services Agreements, the 10 a forms of which are attached hereto as Exhibit "1", HW SOUTHGATE, L.P., and Exhibit "2", 11 0 a 12 HW SOUTHGATE BLDG 3, LLC, and made a part hereof, relative to proposed Assessment 13 District No. 1068, ]mown as the Tippecanoe Avenue and Central Avenue Area Landscape, o .2 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 SECTION 2. Authorization to execute the Landscape Maintenance Services Agreements a 17 c is rescinded if the parties fail to execute them within ninety (90) days of the passage of this d 18 „ 19 Resolution. v u 20 21 m 22 2 23 0 F 24 0 W W 25 26 w 27 z I c i 28 i ' a I � PacketPg:529 C d E d 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDDiO 2 AUTHORIZING AND DIRECTING THE EXECUTION OF TWO LANDSCAPE MAINTENANCE a SERVICES AGREEMENTS RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1068 3 (TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE, DETENTION BASIN AND 'ia STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT). m 4 d 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and = v 6 Common Council of the City of San Bernardino at a meeting thereof a3 7 o held on the day of 2012,by the following vote,to wit: o 8 0 a 9 Council Members: AYES NAYS ABSTAIN ABSENT r 10 ° MARQUEZ 11 a 12 JENKINS _ 13 VALDIVIA `o N 14 SHORETT © 15 KELLEY o 16 a JOHNSON 17 d 18 MCCAMMACK d Fu 19 a d d 20 City Clerk c d 21 e The foregoing resolution is hereby approved this day of 2012, W 22 z 23 0 24 PATRICK J.MORRIS, Mayor p City of San Bernardino w 25 z 26 Approved as to F 3 w z 27 By' c 28 JAMES F. PENMAN, City Attorney E z M a Packe[Pg. 530 EXHIBIT 441" ORECORDING REQUESTED BY: City of San Bernardino 300 North"D"Street San Bernardino,CA 92418 E m v rn When Recorded,Mail To: ¢ c City of San Bernardino g Real Property Section,3b Floor rn 300 North"D"Street S San Bernardino,CA 92418 a@i x u a AGREEMENT OF PROPERTY OWNER a' FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT o 0 (Tippecanoe Avenue and Central Avenue Area) m 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 day v of 2012, and evidences the agreement by and between (i)HW SOUTHGATE,L.P.,a California limited partnership(the"Property Owner"),as the owner a 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 o herein,and(ii)the CITY OF SAN BERNARDINO,a municipal corporation and charter city of the State of California(the c THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY E HEREBY AGREE AS FOLLOWS: a M Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions a of City of San Bernardino Municipal Code Chapter 12.90("Municipal Code Chanter 12.90 ),and w 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 w within agreed upon areas of Assessment District No. 1068. Exhibit "B" attached hereto and z 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 = u includes no property other than the Property. G AD 1068—Maintenance Agreement Page 1 PacketPg.531 (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 m Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the m Property Owner Maintenance Areas during the period of time that the Property Owner complies with rn 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 2 the City shall collect and hold in reserve until such time as this Maintenance Agreement is c 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 = u Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall a consider the Property Owner Maintenance Areas to be treated the same as any other property within a' 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 c assessment amount(to be reflected on the annual property tax bill) as may then be collected by the a City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting m 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 v Avenue and 10%of costs along Central Avenue deemed to be the general benefit portion to be paid LU 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.. w 3 (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 c "Ensineers' Report"). o a (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 a r "Administrative Costs"),which are described in the Engineer's Report and the formation documents w for Assessment District No. 1068. 3 W Section 2. Landscape Maintenance. z G (a) The Property Owner recognizes that the City has initiated and completed proceedings E to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below = u for the maintenance and servicing of public landscaping improvements on the Property Owner Maintenance Areas situated within Assessment District No. 1068. a AD 1068—Maintenance Agreement Page 2 (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: m (i) the maintenance and servicing by the City of any landscaping within the a 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 c or treating for disease or injury,the removal of trimmings,rubbish,debris and v other solid waste,including appurtenant contract administration,inspection and incidentals thereto, all as more extensively set forth in Exhibit "C" a attached hereto and incorporated by this reference as if set forth fully herein; o' and m 0 (ii) incidental costs associated with the maintenance and servicing described in a subparagraph (i), above, including the costs associated with (1) the w preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this CL Maintenance Agreement. a Section 3. Termination Right by City Engineer. w (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 N this Maintenance Agreement in the event the Property Owner shall have failed to perform the 3 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 E written notice from the City Engineer, or his/her designee, to the Property Owner ordering the a 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 m 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 fast approved by the Mayor and Common Council as hereinafter provided) shall have the right at any time a r thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of w 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 w 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 E 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 a AD 1068—Maintenance Agreement Page 3 oft r 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 v recommendations for the termination of this Maintenance Agreement. It shall be sufficient for d purposes hereof that the action of the Mayor and Common Council shall be to declare a default d m hereunder by the Property Owner,and upon the expiration of the applicable notice period without an a adequate cure having been completed,no further official action shall be required by the Mayor and 5 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 °c 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. a 3 a (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 o 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 z Maintenance Agreement or for any interpretation of this Maintenance Agreement. a rr N (d) Unless waived by the City Engineer,at his sole discretion,the Property Owner shall v 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 0 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 N Council as provided above), by the City Engineer sending a notice, within 30 days after the 3 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 o Engineer may temrinate this Maintenance Agreement upon the occurrence of any subsequent default, a unless waived by the City Engineer,by sending notice,within 30 days after the occurrence of such R 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. a s x W (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 w 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 E 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 a AD 1068—Maintenance Agreement Page 4 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. v E d (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 a 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 c to the principal office of the parties,as applicable, as designated below. d x U To City: City of San Bernardino a City Engineer o'. City Hall,Third Floor 300 North"D" Street o San Bernardino,California 92418 0 a To Property HW Southgate,L.P., Owner: c/o Hillwood Development Company,LLC L 268 West Hospitality Lane, Suite 105 San Bernardino, CA 92408 0 Attn: John M. Magness Fax: (909) 382-0073 a c� and Hillwood Development Company,LLC 5430 LBJ Freeway, Suite 800 0 Dallas, Texas 75240 3 Attn: Patricia Brown Edwards x Fax: (972)201-2889 E m (b) Such written notices,demands and communications may be sent in the same manner a 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 w placed in the United States Mail or personal delivery as heretofore provided. W (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. A z T Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its a AD 1068-Maintenance Agreement Page 5 Packet Pg. 535 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 a enforcement of County of San Bernardino property taxes shall apply to the collection and d enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any m assessment lien and independently pursuing judicial remedies for the enforcement of any assessment a lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable 5 .W California law. m c 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 a hereof. a o� Section 7. First Year's Assessment. The 2012/2013 assessment to the Property Owner o by the City pursuant to Assessment District No. 1068 shall be limited to the amounts shown on Table 1 of the Engineer's Report. at It 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 a known to the City Engineer. W w 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, N medical condition,marital status,sexual gender or sexual orientation,except as permitted pursuant to 3 Section 12940 of the Government Code. Violation of this provision may result in the imposition of = penalties referred to in Labor Code, Section 1735. E E Section 10. Entire Agreement. Amendment and Termination. This Maintenance a 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 r Agreement may be amended or terminated only by written agreement, signed by the parties in w interest at the time of such amendment or termination,except as also provided in Section 3 regarding termination. w z t 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-Maiatemmce Agreement Page 6 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 E construed under the laws of the State of California without giving effect to that body of laws d pertaining to conflict of laws. In the event of any legal action to enforce or interpret this rn 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. A f Section 13. Indemnification and Hold Harmless. Property Owner shall protect,defend, c indemnify and hold harmless City and its elected and appointed officials,officers, and employees d from any and all claims, liabilities, expenses, including attorneys' fees, damage to property or = u injuries to or death of any person or persons or damages of any nature including,but not limited to, a all civil claims or workers' compensation claims, arising out of or in any way connected with the a acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. 0 Section 14. Insurance N K (a) Minimum Scone and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: W a (i) Comprehensive general liability, including premises-operations, LU 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. o N 3 (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 E 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: t X w (i) Additional insured: "The City of San Bernardino and its elected and k appointed boards,officers,agents,and employees are additional insured with m respect to Property Owner's performance under this Agreement with City." E c (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the E coverage reduced,until thirty(30)days after written notice is given to City." j (iii) Other insurance: "Any other insurance maintained by the City of San AD 1068—Maintenance Agreement Page 7 Packet Pg. 537 i 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 d 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. a (d) Nan-limiting. Nothing in this Section shall be construed as limiting in any way,any S M indemnification provision contained in this Agreement,or the extent to which Property Owner may f be held responsible for payments of damages to persons or property. c M d Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered = v into for the sole benefit of City and Property Owner and no other parties are intended to be direct or a incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, CL under or to this Maintenance Agreement. 0 Section 16. Headings. Paragraphs and subparagraph headings contained in this ° a Maintenance Agreement are included solely for convenience and are not intended to modify,explain n 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. CL Section 17. Construction. The parties have participated jointly in the negotiation and v 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 a be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall to 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. N 3 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 c waiver of those rights to require such performance or compliance. No waiver of any provision of o this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized a 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. a s X w Section 19. Sevembilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the w foregoing,if any provision of this Maintenance Agreement is found to be invalid or unenforceable Z 2 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 Section 20. Counterparts. This Maintenance Agreement maybe 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. c ar Section 21. Authori . The persons executing this Maintenance Agreement on behalf of E 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 c Agreement shall run with the Property and any portion thereof or interest therein, and shall be d binding upon and inure to the benefit of all persons having or acquiring any interest in the Property = U or any portion thereof,and their respective successive owners and assigns. a IL IL 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 o thirty(30) days following the execution of this Maintenance Agreement. a Section 24. Consent. Wells Fargo Bank, National Association, will consent to this s 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 v created hereunder as evidenced by the Consent and Subordination attached hereto. w Q x 0 O N [Signatures Follow On Next Page] x E m c E a s X U1 3: w Z c v E L U ¢ O AD 1068—Maintenance Agreement Page 9 PacketPg. 539 © 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 c v CITY: E m P CITY OF SAN BERNARDINO By: EXHIBIT COPY m CHARLES E.MCNEELY,City Manager E `m m x U SEAL a m ATTEST: � 0 O Q City Clerk a tY Approved as to Form: m v EXHIBIT COPY W a JAMES F. PENMAN,City Attorney � x r 0 O STATE OF CALIFORNIA N COUNTY OF ) S.S. _ c On before me, E rn Notary Public,personally appeared E 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/ber/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity on behalf of which the person(s)acted,executed the instrument. s X W I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. w z WITNESS my hand and official seal. SEAL: c a E L Signature � (signatures continued on the following page) AD 1068—Maintenance Agreement Page to PacketPg. 540 7.6.1 PROPERTY OWNER: HW SOUTHGATE, L.P., a California limited partnership `m E v By: DTC Phase II,LLC, rn a Delaware limited liability company Q its general partner m c By: EXHIBIT COPY Name: _ U Title: s a m 0 Q STATE OF TEXAS § COUNTY OF DALLAS § a This instrument was acknowledged before me on 2011, by of DTC Phase II, LLC, a 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. o V) 3 x c Notary Public, State of Texas E rn a a_ z x w 3 w z c v E L u Q AD 1068—Maintenance Agreement Page 11 4`Packet Pg. 541 QConsent of Lender WELLS FARGO BANK,NATIONAL ASSOCIATION("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 d Document No.2008-0145378 in the Official Records of San Bernardino County,California,to this rn Maintenance Agreement. a c WELLS FARGO BANK,NATIONAL ASSOCIATION, as agent for and on behalf of Wells Fargo Bank,National c Association and any and all other financial institutions identified in an Intercreditor Agreement executed by Agent = 2 and such Lenders 9 3 a w By: Name: ° a Title: WELLS FARGO BANK, NATIONAL ASSOCIATION a By: w Name: Title: 7 0 STATE OF TEXAS § 3 § ss. _ COUNTY OF DALLAS § E i m This instrument was ACKNOWLEDGED before me on 2012, by a Senior Vice President of Wells Fargo Bank, National A 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 hntercreditor Agreement executed by Agent and such a L Lenders. " w 3 [SEAL] z My Commission Expires: E Notary Public, State of Texas R Printed Name of Notary Public a AD 1068—Maintenance Agreement Page 12 EXHIBIT "A" PROPERTY DESCRIPTION c a E d at 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 M Document No.2011-0456118 in Official Records of San Bernardino County,California,and save m and except Parcel 8 of said Parcel Map 17887. d x U_ 3 a m 0 O a U) a m �n m e w C7 x O N 2 c E rn a a r X w 3 w z c d E L U F Q O AD 1068—Maintenance Agreement Page 13 ac et 9.' S EXHIBIT "A-1" Lot Line Adjustment Map (LLA 11-02) c v E d y OZl � USaiOHd * w$ a�d o a 2gyp � o '3Ab M3N NIYL//IOIY •g y______ �l 44�Y m I � v ryp I W ID, O 1 I f� IY�� n 1�• j "1 a ° ° E VIIPopp �25 os Se S�l% ���44 i "IIM^M •C1��7p a wI Y llj � CR4 ' ® z I I t1� ems' ^ d t ®® E �d 3avv�dait�__ � v A a AD 1068—Maintenance Agreement Page 14 "PackeYPgI544,;` I i i i i OEXHIBIT`B" PROPERTY OWNER MAINTENANCE AREAS c m E y 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 a northerly and southerly side of Central Avenue east of Tippecanoe Avenue,as further depicted on E Exhibit`B-1". m c R v x U s a m m 0 O N K a x m a Q f7 x F O rn c E rn Q i a L W 3 W i Z E z Y a AD 1068—Maintenance Agreement Page 15 Packet Pg. 545 7:B.1 ® EXHIBIT "B-1" ASSESSMENT DIAGRAM c u E 2I2 2 E 2 + A �ft ' ; a as�aEF 22 "ttp I4 �` 2ibgpfid1Iy '� � �3 t{3 ¢g 4q $ J V 8 282. 88H. �8 i ad 213F2F522% 8 � � I s a ¢ b o and o Q IMIZ2 � j N " � a F � <® � Z4 . \ pp a QJs'z�`ll aI �6ge E N Will � � 46 1 = I Q LLJ z a n N s \ s • � kB u AD 1068—Maintenance Agreement Page 16 Packet Pg. 546 7.6.1 (� EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping located within the Property Owner w Maintenance Areas identified in Exhibit `B" as required by this Maintenance Agreement. The E Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under rn this Maintenance Agreement and,as between the City and the Property Owner,shall be responsible Q 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. c `m v The Property Owner shall maintain the landscaping improvements as required by this Maintenance = U Agreement in a condition,as reasonably determined by the City Engineer,or his authorized designee, a consistent with the then current standards for landscape maintenance within other City landscape i assessment districts on file in the office of the City Engineer. 0 All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as 0 a necessary as shall be reasonably determined to ensure the visual quality of the landscaping n 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. m v w c7 x t- 0 O rn S c E 0 Q t a t X W W Z m E s U Q AD 1068—Maintenance Agreement Page 17 Packet Pg.547 EXHIBIT 662" ® RECORDING REQUESTED BY: City of San Bernardino 300 North"D"Street E San Bernardino,CA 92418 v m a When Recorded,Mail To: 'c m City of San Bernardino c Real Property Section,3'Floor 300 North"D"Street w x San Bernardino,CA 92418 U a 3 a AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES o FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT a N (Tippecanoe Avenue and Central Avenue Area) a 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 day M of 2012, and evidences the agreement by and between o (i)HW SOUTHGATE BLDG 3, LLC, a California limited liability company (the "Prope to Owner"), as the owner of certain property within the boundaries of the City of San Bernardino F Assessment District No. 1068 (the"Assessment District No. 1068"),which property is the subject of a c� 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 N 3 x THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: E a Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions w of City of San Bernardino Municipal Code Chapter 12.90("Municipal Code Chapter 12.90"),and a other applicable law, including without limitation, Streets and Highways Code Section 22500, et x seq., 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 z 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 d includes no property other than the Property. E U AD 1068—Maintenance Agreement Page 1 Packetpg. 548 (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 E assessment district"for which the City shall forebear the collection of assessments for the Property d Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the G 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 rn 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. o 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 a 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 o collected by the City to pay for the landscape maintenance services performed by the City. Such a 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 d 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 M © Avenue and 10%of costs along Central Avenue deemed to be the general benefit portion to be paid o by the City)shall be allocated to the Property Owner as set forth in the Engineer's Report referenced m in Section 1(c) below, including the allocation of the assessments solely among the nine (9) w r commercial parcels created by Parcel Map No. 17887, as recorded in Book 237 of Parcel Maps, Q 0 Pages 66-73,in the office of the San Bernardino County Recorder, State of California.. _ 0 0 (c) The City Engineer or his designee,has prepared the Engineer's Report for Assessment w District No. 1068 dated October 25, 2011, on file with the City Clerk as File No. 14.40-167 (the = `Engineers' Report"). c E (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 c 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 N "Administrative Costs"),which are described in the Engineer's Report and the formation documents a for Assessment District No. 1068. x w Section 2. Landscape Maintenance. ; w z (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 d for the maintenance and servicing of public landscaping improvements on the Property Owner E L Maintenance Areas situated within Assessment District No. 1068. AD 1068—Maintenance Agreement Page 2 Packet Pg. 549 V (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 E incurred by the City for the following: m a (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 famishing of services and materials for m 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 v other solid waste,including appurtenant contract administration,inspection and incidentals thereto, all as more extensively set forth in Exhibit "C" a attached hereto and incorporated by this reference as if set forth fully herein; m and 0 (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the a preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this 00 Maintenance Agreement. M Section 3. Termination Right by City Engineer. o J m (a) City Engineer shall mean the engineer for the City,or his/her designee. w a c� (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 O maintenance or the furnishing of services described in Section I(b)above and/or Exhibit"C"within w 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 E 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 2 by the Mayor and Common Council as hereinafter provided) shall have the right at any time N thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of n termination by the Property Owner (as provided in Section 4(b) herein). The City (if such x termination is first approved by the Major and Common Council as hereinafter provided)shall also w have the right to terminate this Maintenance Agreement in the event the Property Owner shall have 3 failed to perform the maintenance or furnishing of the services described in Section 1(b) and/or z 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 d hours prior written notice to the Property Owner to completely cure said hazardous safety situation, z and the Property Owner has failed to so completely cure (or to have commenced such cure with a AD 1068—Maintenance Agreement Page 3 Packet Pg. 550 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 E 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 a 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 E 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 anyportion of Assessment District No. 1068 to be a"default assessment district"as to the Property and the City shall undertake U the regular periodic landscape maintenance and seek collection ofthe annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. a ao (c) The sole right of the Property Owner to contest any determination by the City for the o 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 a 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 M © only be permitted to have two defaults determined by the Mayor and Common Council pursuant to 0 this Maintenance Agreement,which may be cured by the Property Owner. Unless so waived by the m City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior F defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so a cs 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 0 occurrence of such third default, advising the Property Owner of said termination of this to 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, E 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 2 such subsequent default. N a (e) The Property is part of the property covered by the Parcel Map No. 17887 and x Certificate of Compliance for Lot Line Adjustment 11-02 described in the attached Exhibit"A"(the w "Parcel Map Property"). The Parcel Map Property is currently composed of nine(9)separate parcels w (each, a "Parcel'). If a Parcel is divided into one or more small subdivisions (each a "Lot' by z 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. ht the event m of a default by an Owner of one Lot or Parcel, including any obligations pursuant to Section 1(b) E L u a AD 1068—Maintenance Agreement Page 4 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. E E Section 4. Notices and Communications. d P a (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 rn 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. o a To City: City of San Bernardino a City Engineer City Hall,Third Floor ° 300 North°D" Street °a San Bernardino, California 92418 a To Property HW Southgate Bldg 3,LLC, Owner: c/o Hillwood Development Company, LLC 268 West Hospitality Lane, Suite 105 San Bernardino, CA 92408 M Attn: John M. Magness o Fax: (909)382-0073 in w and Hillwood Development Company,LLC a 5430 LBJ Freeway, Suite 800 Dallas, Texas 75240 D 0 Attn: Patricia Brown Edwards y Fax: (972)201-2889 = (b) Such written notices,demands and communications may be sent in the same manner E to such other addresses as either party may from time to time designate as provided in this Section. a 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 N date sent by FAX and confirmed by First Class United States Mail or two calendar days after it is a placed in the United States Mail or personal delivery as heretofore provided. x W (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 z 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. E L U © a AD 1068—Maintenance Agreement Page 5 PacketPg. 552 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 c assessments as may hereafter be assessed by the City under Section 2 of this Maintenance E Agreement,at the same time and in the same manner as County of San Bernardino general property w taxes are collected against real property, and all the laws providing for the collection and rn a 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 rn lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable `- California law. U 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 a Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. ° 0 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 a Table 1 of the Engineer's Report. N CO 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 o known to the City Engineer. m w 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, 0 medical condition,marital status,sexual gender or sexual orientation,except as permitted pursuant to N Section 12940 of the Government Code. Violation of this provision may result in the imposition of i penalties referred to in Labor Code, Section 1735. c E Section 10. Entire Agreement. Amendment and Termination. This Maintenance a 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 N appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance n Agreement may be amended or terminated only by written agreement, signed by the parties in K interest at the time of such amendment or termination,except as also provided in Section 3 regarding w termination. ; w z 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 apposing party all costs and expenses, including reasonable attorneys' fees, incurred by the r prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any r a AD 1068—Maintenance Agreement Page 6 Packet Pg.553 7.B.m 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. E m v Section 12. Governing Law. This Maintenance Agreement shall be governed by and rn a 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. `- m x Section 13. Indemnification and Hold Harmless. Property Owner shall protect,defend, u indemnify and hold harmless City and its elected and appointed officials, officers, and employees B from any and all claims, liabilities, expenses, including attorneys' fees, damage to property or a 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 o acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the a performance of this Maintenance Agreement. a Section 14. Insurance 0: (a) Minimum Scone and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: M 0 (i) Comprehensive general liability, including premises-operations, m products/completed operations, broad form property damage, blanket w contractual liability,personal injury with a policy limit of not less than One a c� Million Dollars($1,000,000.00),combined single limits,per occurrence and = aggregate. 0 N (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. E m a (iii) Workers' compensation insurance as required by the State of California. (b) Endorsements. The comprehensive general liability insurance policy shall contain or N be endorsed to contain the following provisions: a r X (i) Additional insured: "The City of San Bernardino and its elected and °1 appointed boards,officers,agents,and employees are additional insured with 3 respect to Property Owner's performance under this Agreement with City." z (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the m coverage reduced,until thirty(30)days after written notice is given to City." r Fq U O a AD 1068—Maintenance Agreement Page 7 Packet Pg. 554 © (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." E d (c) Certificates of Insurance. Property Owner shall provide to City certificates of a 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. rn (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. o a Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered a 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, o under or to this Maintenance Agreement. N Section 16. Headings. Paragraphs and subparagraph headings contained in this a 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. n Section 17. Construction. The parties have participated jointly in the negotiation and o drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or m interpretation arises with respect to this Maintenance Agreement,this Maintenance Agreement shall F be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall a 0 be no presumption or burden ofproof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. 0 N 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 N waiver. a_ L x Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be w 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 z 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 m amendments to this Maintenance Agreement as may be necessary to achieve its intent, E L notwithstanding such invalidity or imenforceability, m a AD 1068-Maintenance Agreement Page 8 Packet Pg. 555 Section 20. Counterparts. This Maintenance Agreement maybe 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. w a Section 21. Authori . The persons executing this Maintenance Agreement on behalf of c 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. d x Section 22. Covenant Running with the Land. The provisions of this Maintenance v 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 n or any portion thereof,and their respective successive owners and assigns. o 0 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 It thirty(30) days following the execution of this Maintenance Agreement. a W 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 N.A.,to this Maintenance Agreement and to all easements and rights created hereunder as evidenced o by the Consent and Subordination attached hereto. m W a C7 x h 0 O [Signatures Follow On Next Page] '" 3 x c E rn a N a s X W LU W Z C m E U U a AD 1068—Maintenance Agreement Page 9 Packet Pg. 556 i ^ THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the Property Owner [V; and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the introductory paragraph hereof. E d CITY: m CITY OF SAN BERNARDINO S m rn By: EXHIBIT COPY S CHARLES E.MCNEELY,City Manager = U a SEAL a co o_ ATTEST: ° ¢ rn City Clerk a a: N CO V Approved as to Form: ..., M 0 © EXHIBIT COPY ° J m JAMES F. PENMAN,City Attorney w c� x STATE OF CALIFORNIA COUNTY OF ) S.S. 3 On before me, _ c Notary Public,personally appeared E rn who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to a 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 on behalf of which the person(s)acted,executed the instrument. w a I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph x is true and correct. w WITNESS my hand and official seal. SEAL: Z c Signature m E U v (signatures continued on the following page) Q AD 1068—Maintenance Agreement Page 10 "T�ac(Cet Pg. 557 7.B.m PROPERTY OWNER: c HW SOUTHGATE BLDG 3,LLC, E a California limited liability company v rn By.EXHIBIT COPY Name: Title: rn c v Z U_ a n. STATE OF CALIFORNIA m 0 O COUNTY OF SAN BERNARDINO a ti On 12012,beforeme, Notary Public, d 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 v to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/then signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, (� executed the instrument. ° w m I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing a paragraph is true and correct. _ 0 0 WITNESS my hand and official seal. N 3 x Signature E a a c My Commission Expires: This area for official notarial seal Notary Notary Name: Phone: County of Principal Place of a Notary Registration Business: w Number: 3 w Z c m E t U Rf © a AD 1068-Maintenance Agreement Page I 1 Packet Pg. 558 Consent of Lender CONSENT AND SUBORDINATION d d The undersigned,JPMORGAN CHASE BANK,N.A.,a national banking association,in its a capacity as Administrative Agent,for the ratable benefit of itself,the other Lenders(as defined in the Loan Agreement) and each of JPMorgan Chase Bank,N.A.'s affiliates that is a party to any Swap m Agreements (together with each and every successor agent for the Lenders and such affiliates of W JPMorgan Chase Bank,N.A.)("Lender"),the beneficiary under that certain Construction Deed of 5 Trust and Security Agreement(with Assignment of Rents)dated February 10,2012(as modified,the "Deed of Trust")executed by HW Southgate Bldg 3,LLC,a California limited liability company,as owner and as borrower(collectively, "Trustor'), to Chicago Title Insurance Company, as original B Trustee,recorded on February 10,2012,as Instrument Number 2012-0056185,Official Records of a the County of San 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 w liability company(the"LMD Agreement"),and,subject to the terms and provisions of this Consent a 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 c amendment to or modification of the LMD Agreement,or a release of the lien and security interests m of the Deed of Trust,but shall instead confirm that the lien and security interests of the Deed of Trust F shall hereafter be upon and against all of the property subject to the LMD Agreement;and(ii)shall not modify or amend the terms and provisions of the Deed of Trust. X 0 0 N LENDER: _ JPMORGAN CHASE BANK,N.A., E as Administrative Agent and as a Lender c By: g Name: Title: a t X W W Z a c m E z v m a AD 1068-Maintenance Agreement Page 12 Packet Pg. 559 Q EXHIBIT"A" G U PROPERTY DESCRIPTION m a Lot B of Certificate of Compliance for Lot Line Adjustment No.LLA 11-02 recorded November 11, m 2012, under Document No. 2011-0456118 in Official Records of San Bernardino County, rn California. d x U B a w 0 O Q N o: m v M J (L W F- 0 x N 0 O N x E rn Q c N a L X W LU W Z c U !_ t U (0 © Q AD 1068—Maintenance Agreement Page 13 Packef Pg.560 r EXHIBIT "A-1" V � Lot Line Adjustment Map(LLA 11-02) £ E d m a E(ES ES hy`yo cel a e e $ 3 `� FOF v m n h^QQ y h 4. o � ad .4 h N W � y fL �axn�nvtvn_a`r J y v -y- H y U m n^ W m J - , o r 1 6 4 ;ge ...... x O WW 0 = l Ul ° N E ISIS Y Yb I ° Z$ I O � ° �g 1 I 14. �i ° $m lc a 04 i�0 q It i I L „ �4aa y � x 4 s U a AD 1068—Maintenance Agreement Page 14 Packet Pg. 561 EXHIBIT `B" PROPERTY OWNER MAINTENANCE AREAS £ d d m a The areas to be maintained by the property owner will be landscaping and all appurtenances along c portions of the easterly side of Tippecanoe Avenue south of Central Avenue, together with the ii northerly and southerly side of Central Avenue east of Tippecanoe Avenue, as further depicted on rn Exhibit`B-1" `- a x U a 3 a m m 0 O Q N lY a o! N W O M l7 J W F Q C7 x H 0 O rn 2 c E rn Q c 'm N J? x if W W W Z c m E t U N a AD 1068—Maintenance Agreement Pa 1"C 15 Packet Pg. 562 7.B.m Q EXHIBIT"B-1" c ASSESSMENT DIAGRAM E v v g { 5 p m Tfi�2f l g `il5x2 a to tt �2° 2 i J a y rl � �Mill it ii8jf°, F1116,11.1 3 Il oil dz ego ooa wy o \ \ M 5 V m3 m,, no" I 9� pO W Wo o a E Q \ \ I rn :ii `\ ¢¢iiyy r x \\Y g 3 AD 1068—Maintenance Agreement Page 16 I PacketPg. 563 1 3 EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS E E The Property Owner hereby agrees to maintain the landscaping located within the Property Owner d 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 c 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. U The Property Owner shall maintain the landscaping improvements as required by this Maintenance 3 Agreement in a condition,as reasonably determined by the City Engineer,or his authorized designee, a consistent with the then current standards for landscape maintenance within other City landscape 0 assessment districts on file in the office of the City Engineer. o a All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as V necessary as shall be reasonably determined to ensure the visual quality of the landscaping a 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. M o C3 C3 w ti C7 x D 0 O rn 3 x E m a N L X � W Z G E Q v AD 1068—Maintenance Agreement Page 17 j Packet Pg. 564 7.B.n RECORDING REQUESTED BY: City of San Bernardino 300 North"D"Street San Bernardino,CA 92418 E d v When Recorded,Mail To: C City of San Bernardino Real Property Section,3rd Floor 300 North"D"Street c San Bernardino,CA 92418 ,E m x _2 9 AGREEMENT OF PROPERTY OWNER a' FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT o 0 (Tippecanoe Avenue and Central Avenue Area) a v 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 day v O of 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"Pro a "),as more fully described in Exhibit"A"attached hereto and incorporated y herein,and(ii)the CITY OF SAN BERNARDINO,a municipal corporation and charter city of the State of California(the c THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: a Section 1. Obligations of Property Owner. c (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 w M.,for the purpose of providing for the private maintenance and operation of certain landscaping z 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 v thereof that are the subject of this Maintenance Agreement which are intended to be maintained by s the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. AD 1068—Maintenance Agreement Pagel Packet Pg. 565 (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 d Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the m 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 a forbear the collection of the first year assessments for Assessment District No. 1068, and the S 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 m 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 a' 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 o assessment amount(to be reflected on the annual property tax bill)as may then be collected by the o a City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting rn 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 v Avenue and 10%of costs along Central Avenue deemed to be the general benefitportion to be paid �j by the City)shall be allocated to the Property Owner as set forth in the Engineer's Report referenced a in Section 1(c) below, including the allocation of the assessments solely among the nine (9) U x 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.. m 3 (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"). E a (d) Beginning with the second year assessments and during the remaining term of this m 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 o "Administrative Costs"),which are described in the Engineer's Report and the formation documents for Assessment District No. 1068. ; w z Section 2. Landscape Maintenance. c v (a) The Property Owner recognizes that the City has initiated and completed proceedings t 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 a Maintenance Areas situated within Assessment District No. 1068. AD 1068—Maintenance Agreement Page 2 Packet Pg. 566 © (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: v E d (i) the maintenance and servicing by the City of any landscaping within the Property Owner Maintenance Areas. As used herein,the words"maintenance a and servicing"mean and refer to the famishing 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" a attached hereto and incorporated by this reference as if set forth fully herein; a' and 0 (ii) incidental costs associated with the maintenance and servicing described in a subparagraph (i), above, including the costs associated with (1) the w preparation of annual engineering reports, (2) the levy of the annual IK assessments, and (3) the collection of the assessments as set forth in this Maintenance Agreement. v Section 3. Termination Right by City Engineer. (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 N this Maintenance Agreement in the event the Property Owner shall have failed to perform the 3 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 E written notice from the City Engineer, or his/her designee, to the Property Owner ordering the o Property Owner to perform the maintenance or furnishing of the services described in such notice as a 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 o 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 w 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 d Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a r 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, a Oand the Property Owner has failed to so completely cure (or to have commenced such cure with AD 1068—Maintenance Agreement Page 3 I 1 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 d purposes hereof that the action of the Mayor and Common Council shall be to declare a default rn hereunder by the Property Owner,and upon the expiration of the applicable notice period without an a 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 anyportion 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. a a (c) The sole right of the Property Owner to contest any determination by the City for the m termination of this Maintenance Agreement shall be to appear before the Mayor and Common o Council at the public meeting at such time it is proposed for the Mayor and Common Council to take ° a official action with respect to such termination. The Property Owner agrees not to file any court v 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. N (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 W this Maintenance Agreement,which may be cured by the Property Owner. Unless so waived by the a City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior x 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 o m Council as provided above), by the City Engineer sending a notice, within 30 days after the 3 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 E default and cure opportunity with respect to such third default. If a waiver is granted,then the City a 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 ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to =_ such subsequent default. ° 0 (e) The Property is part of the property covered by the Parcel Map No. 17887 described 3 in the attached Exhibit "A" (the "Parcel Map Property"). The Parcel Map Property is currently z 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 12 obligations pursuant to Section 1(b)above,the rights and remedies available to City including those a AD 1068—Maintenance Agreement Page 4 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. d E d (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 a 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. x To City: City of San Bernardino City Engineer a' City Hall,Third Floor 300 North"D" Street o San Bernardino, California 92418 a To Property HW Southgate,L.P., it Owner: c/o Hillwood Development Company, LLC 268 West Hospitality Lane, Suite 105 San Bernardino,CA 92408 v Attn: John M. Magness Fax: (909)382-0073 a and Hillwood Development Company,LLC 5430 LBJ Freeway, Suite 800 0 Dallas,Texas 75240 3 Attn: Patricia Brown Edwards x Fax: (972) 201-2889 15 E M (b) Such written notices,demands and communications may be sent in the same manner a to such other addresses as either party may from time to time designate as provided in this Section. F 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 I such return receipt,on the day that it is dispatched by messenger for immediate personal delivery,the M 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. w z (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 E has not provided an address for notice,any other parry may deliver notice to such party at the address E shown as the address for the owner of the property in question in the county tax records. a Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its AD 1068—Maintenance Agreement Page 5 Packet Pg.569 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 m enforcement of County of San Bernardino property taxes shall apply to the collection and E enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any rn assessment lien and independently pursuing judicial remedies for the enforcement ofany assessment 4 lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable S California law. rn Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force v 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. ' a m Section 7. First Year's Assessment. The 2012/2013 assessment to the Property Owner o by the City pursuant to Assessment District No. 1068 shall be limited to the amounts shown on Table CI 1 of the Engineer's Report. a N n: Section 8. City Confirmation. On request from time-to-time of the Property Owner,the 0. 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. W 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, o medical condition,marital status,sexual gender or sexual orientation,except as permitted pursuant to 3 Section 12940 of the Government Code. Violation of this provision may result in the imposition of = penalties referred to in Labor Code, Section 1735. i E M Section 10. Entire Agreement Amendment and Termination This Maintenance a Agreement constitutes the entire agreement between the parties with respect to any matter referenced m 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 "c_ appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance o 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 w termination. z Section 11. Attorneys' Fees. In the event that litigation is brought by any party in d connection with this Maintenance Agreement the prevailing party shall be entitled to recover from s 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 a of the terms,conditions, or provisions hereof. The costs,salary and expenses of the City Attorney AD 1068—Maintenance Agreement Page 6 Packet Pg. 570 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 L aw. This Maintenance Agreement shall be governed by and m construed under the laws of the State of California without giving effect to that body of laws E pertaining to conflict of laws. In the event of any legal action to enforce or interpret this o Maintenance Agreement,the parties hereto agree that the sole and exclusive venue shall be a court of a competent jurisdiction located in San Bernardino County,California. f Section 13. Indemnification and Hold Harmless. Property Owner shall protect,defend, c indemnify and hold harmless City and its elected and appointed officials, officers, and employees m 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, a all civil claims or workers' compensation claims, arising out of or in any way connected with the a' acts, errors or omissions of Property Owner, its employees, agents or subcontractors in th e performance of this Maintenance Agreement. o 0 Section 14. Insurance a N (a) Minimum Scone and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: a (i) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket a 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. o (ii) Automobile liability for owned vehicles,hired,and non-owned vehicles,with = i apolicy limit of not less than One Million Dollars($1,000,000.00),combined c single limits,per occurrence and aggregate. E m a (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: o (i) Additional insured: "The City of San Bernardino and its elected and w appointed boards,officers,agents,and employees are additional insured with ? respect to Property Owner's performance under this Agreement with City." c d (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." U a (iii) Other insurance: "Any other insurance maintained by the City of San AD 1068—Maintenance Agreement Page 7 Packet Pg. 571 Bernardino shall be excess and not contributing with the insurance provided C by this policy." (c) Certificates of Insurance. Property Owner shall provide to City certificates of m insurance showing the insurance coverages and required endorsements described above,in a form d 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 f be held responsible for payments of damages to persons or property. c A v Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered ? v into for the sole benefit of City and Property Owner and no other parties are intended to be direct or a incidental beneficiaries of this Maintenance Agreement and no third parry shall have any right in, a' under or to this Maintenance Agreement. o 0 Section 16. Headings. Paragraphs and subparagraph headings contained in this a Maintenance Agreement are included solely for convenience and are not intended to modify,explain v 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 v drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or w v interpretation arises with respect to this Maintenance Agreement,this Maintenance Agreement shall Q be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall x be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of F- any of the provisions of this Maintenance Agreement. o 3 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 E waiver of those rights to require such performance or compliance. No waiver of any provision of a 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. 0 Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be w 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 E 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, x notwithstanding such invalidity or unenforceability. ¢ O AD 1068—Maintenance Agreement Page 7 Packet Pg. 572 i 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. c Section 21. Authori . The persons executing this Maintenance Agreement on behalf of E 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 a 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 v 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. .2 IL Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement m to be recorded with the Office of the County Recorder of San Bernardino County,California,within o thirty(30)days following the execution of this Maintenance Agreement. a Section 24. Consent. Wells Fargo Bank, National Association, will consent to this s 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 N Fargo Bank,National Association, to this Maintenance Agreement and to all easements and rights a created hereunder as evidenced by the Consent and Subordination attached hereto. LU a u x 0 0 [Signatures Follow On Next Page] w 3 x c E at a m c O w z d E U U F Q AD 1068—Maintenance Agreement Page 9 _ Packet Pg. 573 THIS MAINTENANCE AGREEMENT is executed by the authorized officers ofthe 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. c CITY: E d v CITY OF SAN BERNARDINO a c m By: a CHARLES E. MCNEELY,City Manager c v x SEAL a a ATTEST: 0 Q City Clerk o! o: o! Approved as to Form: m v w AMES F.PENMAN, City Attorney x 0 0 STATE OF CALIFORNIA N COUNTYOF } S.S. z c On before me, E rn Notary Public,personally appeared a 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 on behalf of S which the person(s)acted,executed the instrument. - O I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph 3 is true and correct. w z WITNESS my hand and official seal. SEAL: w E L V Signature n Q (signatures continued on the following page) AD 1068-Maintenance Agreement Page 10 Packet Pg.574 7.B.n PROPERTY OWNER: HW SOUTHGATE,L.P., a California limited partnership d E d By: DTC Phase II, LLC, a Delaware limited liability company a its general partner S m By: Name: _ Title: U a a 0 D a STATE OF TEXAS § § COUNTY OF DALLAS § v This instrument was acknowledged before me on 2011, by W of DTC Phase 11, LLC, a a Delaware limited liability company, on behalf of said limited liability company, in its capacity as x general partner of HW Southgate, L.P., a California limited partnership, on behalf of said limited partnership. o°, 3 x Notary Public, State of Texas E a 0 3 W F v E r U a AD 1068—Maintenance Agreement Page 1 f Packet Pg: 575 7.B:n Consent of Lender WELLS FARGO BANK,NATIONAL ASSOCIATION("Agenr%hereby consents to and subordinates that certain Construction Deed ofTntst with Absolute Assignment of Leases and Rents, d Security Agreement and Fixture Filing dated March 25, 2008, and recorded on April 2, 2008, as d Document No.2008-0145378 in the Official Records of San Bernardino County,California,to this Maintenance Agreement. a c WELLS FARGO BANK,NATIONAL ASSOCIATION,as agent for and on behalf of Wells Fargo Bank,National Association and any and all other financial institutions m identified in an Intercreditor Agreement executed by Agent = and such Lenders .2 a By: o Name: a Title: w WELLS FARGO BANK, NATIONAL ASSOCIATION v O By' w Name: � Title: x 0 STATE OF TEXAS § § ss. _ COUNTY OF DALLAS § E rn This instrument was ACKNOWLEDGED before me on 2012, by a 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 s (collectively, "Lenders") identified in an Intercreditor Agreement executed by Agent and such Lenders. 0 3 w [SEAL] z c m My Commission Expires: s Notary Public, State of Texas a Printed Name of Notary Public AD 1066—Maintenance Agreement Page 12 Packet Pg, 570 7.B.n �./ EXHIBIT"A" PROPERTY DESCRIPTION d E d m 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. d x U a a m - o to 0! n: o! n m a w a c� x 0 0 3 x E rn c c O 3 w z c m E s U tC a AD 1068—Maintenance Agreement Page 13 Packet Pg. 577 EXHIBIT"A-1" Lot Line Adjustment Map (LLA 11-02) m E m wl I �l W yEYES+Y� a N Yl19 m �Fu�41 goad «s�Q' `- � ^� U nl V J � � J B �$ ��44 •�9 a`� 9f � O to g a 3nr,u3'n hrvlxnav 4� .. •�, Y Qi 0 / en V I 2 O 0�iy�m � i g!Cn •A 7 I F Q Ll i w yy���I(!Vf G y� r I wb 1 I to tqy �T SU i�Z� ay h C •� O if ' o 't�0 tt I viii t� illy w I ® E I III ezi p � E 4 AD 1068—Maintenance Agreement Page 14 P.ac�C®f Pg;578 i 7.B.n EXIIIBIT °B" PROPERTY OWNER MAINTENANCE AREAS v E d The areas to be maintained by the property owner will be landscaping and all appurtenances along rn portions of the easterly side of Tippecanoe Avenue south of Central Avenue, together with the a northerly and southerly side of Central Avenue east of Tippecanoe Avenue,as further depicted on Exhibit`B-1". m c d X U_ a a m m 0 a y C< a m v w a x D 0 0 3 x E m a c m w c O w z m E z U N ri Q AD 1068—Maintenance Agreement Page 15 Packet Pg. 579 © EXHIBIT`B-1" ASSESSMENT DIAGRAM c ¢ F E its gg ` IItrFEE Ifq ; 8pl Eg3ZRfi�Rj1 1 .<� ± JI tp� p R S; jA U �3 $ _ddL. 3aFS t of FLIFL:3LL'l f a FFFF 1 a \ xtS o z§ _ a BE ®\ C7 ro 5pa_ y F W Y�v � • / — � Y M31 N!Vl IIOW I �O I x A5 \ qe j i ` iI 0 z �o5 N ',\ • { I c W ! 1 { m N\ u i mo mo q � a W •\ „\ j 1, � .. AD 1068—Maintenance Agreement Page 16 7.B.n 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 E 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 a 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 2 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, a consistent with the then current standards for landscape maintenance within other City landscape a' assessment districts on file in the office of the City Engineer. 0 All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as a 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, 1� as applicable,pursuant to an irrigation schedule and at times of the day and for such durations to be a determined based upon the season of the year. o! N W R C W H Q 2 D 0 O f/7 3 x E rn c m c O w z c v E U U N AD 1068—Maintenance Agreement page 17 Packet Pg. 581 7.13:p /�+�. RECORDING REQUESTED BY: E (�1✓ E m a City of San Bernardino Q 300 North"D"Street San Bernardino,CA 92418 9 rn When Recorded,Mail To: c d City of San Bernardino = Real Property Section,3rd Floor u a 300 North"D"Street a San Bernardino,CA 92418 ro 0 0 AGREEMENT OF PROPERTY OWNER a FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT a. (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 day © of 2012, and evidences the agreement by and between x (i)HW SOUTHGATE BLDG 3, LLC, a California limited liability company (the "Pry " Owner"), as the owner of certain property within the boundaries of the City of San Bernardino 0 Assessment District No. 1068 (the"Assessment District No. 1068"),which property is the subject of to this Maintenance Agreement(the"Pro ),as more fully described in Exhibit"A"attached hereto a and incorporated herein,and(ii)the CITY OF SAN BERNARDINO,a municipal corporation and charter city of the State of California(the 0 0 THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: _ Section 1. Obligations of Property Owner. rn a (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions S of City of San Bernardino Municipal Code Chapter 12.90("Municipal Code Chanter 12.9 D,and E 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 O1 within agreed upon areas of Assessment District No. 1068. Exhibit "B" attached hereto and O 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 z the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068 includes no property other than the Property. / E 4 U V a AD 1068–Maintenance Agreement Page ] - -"—" Packet Pg. 582 7.B.o c u (b) To the extent that the Property Owner complies with the requirements of this E Maintenance Agreement, including the maintenance standards as set forth in Exhibit"C"attached o hereto and incorporated herein,Assessment District No. 1068 shall be considered to be a"default Q assessment district"for which the City shall forebear the collection of assessments for the Property 5 Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the 2 Property Owner Maintenance Areas during the period oftime 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 a the City shall collect and hold in reserve until such time as this Maintenance Agreement is a' 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 o Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall a 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 M 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 v 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%ofcosts 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, m Pages 66-73, in the office of the San Bernardino County Recorder, State of California.. a (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 u°°, "Engineers' Report"). 3 x (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 E the City the annual assessments of Assessment District No. 1068 attributable to the costs of weekly a 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. R c Section 2. Landscape Maintenance. 0 3 (a) The Property Owner recognizes that the City has initiated and completed proceedings z 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 d Maintenance Areas situated within Assessment District No. 1068. E L i_ Q AD 1068—Maintenance Agreement Page 2 —" Packet Pg. 583 C E (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 a incurred by the City for the following: R (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 a for the growth,health,cultivation,irrigation,trimming,spraying,fertilizing a° or treating for disease or injury,the removal oftrimmings,rubbish,debris and other solid waste, including appurtenant contract administration,inspection o and incidentals thereto, all as more extensively set forth in Exhibit "C" a attached hereto and incorporated by this reference as if set forth fully herein; and w a o! (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the v 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, o y — Section 3. Termination Right by City Engineer. (a) City Engineer shall mean the engineer for the City, or his/her designee. 0 J no (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 o written notice from the City Engineer, or his/her designee, to the Property Owner ordering the 3 Property Owner to perform the maintenance or furnishing ofthe 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 E default(subject to prudent seasonal planting practices),the City(if such termination is first approved a 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 c termination is fast 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 o 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 z 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, v and the Property Owner has failed to so completely cure (or to have commenced such cure with E a AD 1068—Maintenance Agreement Page 3 Packet Pg. 584 i f © diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination d of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and W Common Council at a duly held and noticed public meeting, wherein the Mayor and Common a Council shall be presented with the facts and circumstances of any alleged default together with any 5 recommendations for the termination of this Maintenance Agreement. It shall be sufficient for f purposes hereof that the action of the Mayor and Common Council shall be to declare a default to hereunder by the Property Owner,and upon the expiration of the applicable notice period without an d 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 a Agreement by the City Engineer,the City shall thereupon no longer deem any portion ofAssessment a° 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 o amount against the Property as provided in this Maintenance Agreement. o a (c) The sole right of the Property Owner to contest any determination by the City for the c 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. 0 0 (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 m 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 N default and cure opportunity with respect to such third default. If a waiver is granted,then the City 3 Engineer may terminate this Maintenance Agreement upon the occurrence ofany 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 E necessity of having given the Property Owner a notice of default and cure opportunity with respect to a such subsequent default. 2 (e) The Property is part of the property covered by the Parcel Map No. 17887 and c Certificate of Compliance for Lot Line Adjustment 11-02 described in the attached Exhibit"A"(the P "Parcel Map Property'). The Parcel Map Property is currently composed of nine(9)separate parcels o (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 z 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) L u m a AD 1068—Maintenance Agreement Page 4 '. PacketPg. 585 7.B.o c f ° above,the rights and remedies available to City including those set forth in this Agreement,may only d `✓ be enforced against that owner and its interest in the Lot or Parcel upon which the default occurred. a Section 4. Notices and Communications. c A (a) Any and all notices,demands or communications submitted by either party to another c party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and v 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 .2 by First Class United States Mail postage prepaid or by personal delivery and in each case,addressed a to the principal office of the parties,as applicable, as designated below. 0 To City: City of San Bernardino a City Engineer City Hall, Third Floor 300 North"D"Street a San Bernardino, California 92418 a 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 0 and Hillwood Development Company,LLC iii 5430 LBJ Freeway, Suite 800 a Dallas,Texas 75240 cs Attn: Patricia Brown Edwards Fax: (972) 201-2889 0 (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 a 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 (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 z shown as the address for the owner of the property in question in the county tax records. v a AD 1068—Maintenance Agreement Page 5 -Packet Pg,586 7.B.o c Section 5. Acceptance of Assessment Lien The Property Owner for itself and its E 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 a 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 2 enforcement of County of San Bernardino property taxes shall apply to the collection and c 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 .n California law. a. Section 6. Term of Agreement This Maintenance Agreement shall remain in full force o 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 a hereof. n a 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 v 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 0 of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then W known to the City Engineer. M t7 C3 Section 9. Non-discrimination. In performing this Maintenance Agreement, Property m Owner shall not engage in, nor permit its w p 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 0 penalties referred to in Labor Code, Section 1735. rn 3 x Section 10. Entire Agreement. Amendment and Termination This Maintenance Agreement constitutes the entire agreement between the parties with respect to any matter referenced E herein and supersedes any and all other prior writings and oral negotiations. The terms of this a 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 c interest at the time of such amendment or termination,except as also provided in Section 3 regarding ° termination. o w Section 11. Attorneys' Fees. In the event that litigation is brought by any party in z 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 d prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any E a AD 1068—Maintenance Agreement Page 6 e of Pg:.587 7.B.o c of the terms,conditions,or provisions hereof. The costs,salary and expenses of the City Attorney E ``.. and members ofhis office in connection with that action,shall be considered as"attorneys'Fees"for rn the purposes of this Maintenance Agreement. a c Section 12. Govemine Law. This Maintenance Agreement shall be governed by and 2 construed under the laws of the State of California without giving effect to that body of laws m 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. a 3 a 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 o from any and all claims, liabilities, expenses, including attorneys' fees, damage to property or ° in uries to or death of an erson or a j y p 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. N a 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: d (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 m Million Dollars($1,000,000.00),combined single limits,per occurrence and aggregate. x t- (ii) Automobile liability for owned vehicles,hired,and non-owned vehicles,with N a policy limit of not less than One Million Dollars($1,000,000.00),combined 3 single limits,per occurrence and aggregate. ? (iii) Workers'compensation insurance as required by the State of California. E a (b) Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: S A (i) Additional insured: "The City of San Bernardino and its elected and O° appointed boards,officers,agents,and employees are additional insured with o respect to Property Owner's performance under this Agreement with City." ; W z (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." v C L R a AD 1068-Maintenance Agreement Page 7 PacketPg. 588 (iii) Other insurance: "Any other insurance maintained by the City of San E Bernardino shall be excess and not contributing with the insurance provided by this policy." a (c) Certificates of Insurance. Property Owner shall provide to City certificates of 2 insurance showing the insurance coverages and required endorsements described above,in a form 6 and content approved by City,prior to performing any services under this Agreement. x (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 Z be held responsible for payments of damages to persons or property. 0 Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City d Pro a ty 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. a o! Section 16. Headings. Paragraphs and subparagraph headings contained in this v 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. 9 N j 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 `n be no presumption or burden of proof favoring or disfavoring any party by virtue ofthe authorship of a any of the provisions of this Maintenance Agreement. x Section 18. Waiver. The delay or failure of either party at any time to require performance N or compliance by the other of any of its obligations or agreements shall in no way be deemed a 3 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 parry against whom enforcement of a waiver is sought. The waiver of any right E or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or Q remedy with respect to any other occurrence or event,nor shall any waiver constitute a continuing waiver. e lion 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 0 foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable 3 for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be z 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. E L N Q AD 1068—Maintenance Agreement Page 8 -- Packet Pg. 589 7.B.o c E E 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 Q 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. a 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 o 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. a rr Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement i� to be recorded with the Office of the County Recorder of San Bernardino County,California,within W. thirty(30)days following the execution of this Maintenance Agreement. v 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 2 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. 0 J m LU F Q [Signatures Follow On Next Page] 0 0 3 x E m m S P O 3 w Z c v © L Q AD 1068—Maintenance Agreement Page 9 PacketPg.590 7.B.o c THIS MAINTENANCE AGREEMENT is executed by the authorized officers ofthe Property Owner m and the City of San Bernardino and this Maintenance Agreement is effective as of the date set forth in the d introductory paragraph hereof. CITY: CITY OF SAN BERNARDINO m x By: a CHARLES E. MCNEELY,City Manager a 0 SEAL 0 a u, ATTEST: ri o! N City Clerk c Approved as to Form: o N 'TAMES F.PENMAN,City Attorney o J on W N STATE OF CALIFORNIA COUNTY OF } S.S. On before me, vii 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 he/she/they executed the same in his/her/their authorized rn capacity(ies),and that by his/her/their signature(s)on the instrument the person(s),or the entity on behalf of a which the person(s)acted,executed the instrument. S I certify under PENALTY OF PERJURY under the laws of the State of California the foregoing paragraph is true and correct. S ` WITNESS my hand and official seal. o SEAL: W W Z Signature v r/ (signatures continued on the following page) E V M AD 1068 a —Maintenance Agreement Page 10 - -- PacketPg. 59t 7,B.o c Q PROPERTY OWNER: E v HW SOUTHGATE BLDG 3,LLC, a California limited liability company By, Name: m d Title: _ _U a a ro 0 O STATE OF CALIFORNIA a N COUNTY OF SAN BERNARDINO a Of On 2012,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 o to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that byhis/her/their .2 signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, Cexecuted the instrument. M 1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing m paragraph is true and correct. w LU a WITNESS my hand and official seal. 0 0 V) Signature 3 x c My Commission Expires: This area for official notarial seal Notary Notary Name: Phone: County of Principal Place of Notary Registration Business: c Number: 0 3 W z m U Q AD 1068—Maintenance Agreement Page 11 Packet Pg. 592 7.B.o c Consent of Lender d P CONSENT AND SUBORDINATION a c The undersigned,JPMORGAN CHASE BANK,N.A.,a national banking association,in its M capacity as Administrative Agent,for the ratable benefit of itself,the other Lenders(as defined in the Loan Agreement)and each of JPMorgan Chase Bank,N.A.'s affiliates that is a party to any Swap Agreements (together with each and every successor agent for the Lenders and such affiliates of z JPMorgan Chase Bank,N.A.) ("Lender'),the beneficiary under that certain Construction Deed of 2 Trust and Security Agreement(with Assignment ofRents)dated February 10,2012(as modified,the a "Deed of Trust")executed by HW Southgate Bldg 3,LLC,a California limited liability company,as owner and as borrower(collectively,"Trustor"),to Chicago Title Insurance Company,as original o Trustee,recorded on February 10,2012,as Instrument Number 2012-0056185,Official Records of o the County of San Bernardino, State of California,hereby consents to the terms,provisions and a conditions of that certain AGREEMENT OF PROPERTY OWNER FOR PROVISION OF U) LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT by HW Southgate Bldg 3,LLC,a California limited N liability company(the"LMD Agreement"),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 2 liens,security interest,terns 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 of the LMD Agreement,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 LMD Agreement;and(ii)shall m not modify or amend the terms and provisions of the Deed of Trust. a cs x LENDER: o V) JPMORGAN CHASE BANK,N.A., 3 x as Administrative Agent and as a Lender By: a Name: c Title: m m 0 3 w z c L r a AD 1068—Maintenance Agreement Page 12 - Packet Pg. 593 c E E EXHIBIT"A" rn Q PROPERTY DESCRIPTION m c Lot Bof Certificate of Compliance for Lot Line AdjustmentNo.LLAI1-02 recorded November 11, 'R 2012, under Document No. 2011-0456118 in Official Records of San Bernardino County, _ California. u a a ao e 0 D Q N a vi a C O .y d K M J m W F a x 0 0 3 x E m a c .E c O 3 w Z c m E L U N Q AD 1068—Maintenance Agreement Page 13 Packet Pg, 594 c v EXHIBIT "A-1" m R M Lot Line Adjustment Map (LLA 11-02) a S R �I ye • I1 >3 `�QVN s*��do `m ort ^ y � $ N Q lyF� � e m c• a ° � J J O O IM1 �yy as p Um JAk g i Sya �Y BlU_ .l p •� 3A�MHA MWhttM (/t I f4 j nn Q@ M ^e 1 b o INS� � 464 E£1 1 m Q �' �I Q � 1 •3 \EZl 4 °° x ZI y s� Ki i s` IIIIIOPP r s"�a ; Z � n� It 9 a U (ptltlZ LL � wM h rt N - m �a 16dn58i,.r 1 ° $ oa� W m 1 �L CN 1 gy O i 8Z1 �� W Z E L U R Q AD 1068-Maintenance Agreement Page 14 Paeka�Pg,p595"' 7.B.o C EXHIBIT `B" El d PROPERTY OWNER MAINTENANCE AREAS a 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"13-1". n a m 0 D Q rn a rr N W a c 0 N j d ❑ J m 111 H Q (7 2 H 7 O N 2 C E rn a .0 o` 3 w z c d s A Q AD 1068—Mavitenance Agreement Page 15 Packet Pg. 596 C EXHIBIT"B-1" d d m ASSESSMENT DIAGRAM Q In Its 11 to ti�i a1�x� t� •d � � g a ! {g E t t U tptpffyy * jjgg JAI g t ag F ,. F FiiiitA2r _} ISJjfd IIIII4�F F adlg c td � b�ac3 to i� 3 d aite �j r ,a°—t 1 6 dig �d elt� 96 et ? 8 � 8 stl�t�Ftt, d a jF3 Q W P4 N \ b \ \ \ 1 ! a o O o \ \ U "> d Q 2 R, 0� x NSa �i i I ! jGtI 11 ! ~ yp o \ f 1 ��— © xrmiaci L U N LU Ll a AD 1068—Maintenance Agreement Page 16 Packet Pg..597 �.B.o v EXHIBIT"C" m �- PROPERTY OWNER MAINTENANCE STANDARDS m a The Property Owner hereby agrees to maintain the landscaping located within the Property Owner 6 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 c 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 x Property Owner in the performance of its obligations under this Maintenance Agreement within the a Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. a' The Property Owner shall maintain the landscaping improvements as required by this Maintenance o Agreement in a condition,as reasonably determined by the City Engineer,or his authorized designee, a consistent with the then current standards for landscape maintenance within other City landscape assessment districts on file in the office of the City Engineer. a K 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 v 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. .0 in v CM t' J m nl F- a x 0 O N 3 x E rn a 2 0 3 W Z c a © L A a AD 1068—Maintenance Agreement Page 17 Packet Pg. 598