HomeMy WebLinkAbout07.B- Public Works RESOLUTION (ID # 1485) DOC ID: 1485 A
CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Nadeem Majaj M/CC Meeting Date: 02/06/2012
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).
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 be 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.
Mayor to open the hearing...
Motion: Close the hearing; and adopt Resolution.
Synopsis of Previous Council Action:
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 Intention No. 2011-319 was adopted.
Background:
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
on the northerly and southerly side of Central Avenue. On October 19, 2010, Hillwood
Investment 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
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1485
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
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.
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
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1485
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-fifffis (4/5) affirmative vote of the
Council members voting thereon.
City Attorney Review:
Supportin Documents:
Combined Item with ID 1486(TXT)
RCA Attach-Engineers Report REV 2011-10-25 - Southgate (PDF)
RCA Attach-Engineers Report-Exhibit I -Vicinity Map (PDF)
RCA Attach-Engineers Report-Exhibit 2 -Boundary Map (PDF)
RCA Attach-Engineers Report-Exhibit 3 -Diagram Map (PDF)
RCA Attach-Engineers Report-Exhibit 4 -Notice of Exemption (PDF)
RCA Attach-Engineers Report-Exhibit 5 -Proposed AD Roll (PDF)
RESOLUTION-Maintenance Agreement AD 1068(PDF)
Exhibit I - Southgate LMD Default Agreement (PDF)
Original - Southgate LMD Default Agreement (PDF)
Updated:2/2/2012 by Mayra Ochiqui A
Packet Pg. 286
1844.txt
This item should be combined with ID 1486 (Public Hearing) and be heard together at
the council meeting.
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ENGINEER'S REPORT
for
ASSESSMENT DISTRICT NO. 1068
(Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and
Storm Drain Maintenance Assessment District)
In the
CITY OF SAN BERNARDINO
COUNTY OF SAN BERNARDINO
STATE OF CALIFORNIA
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File No. 14.40-167
CITY OF SAN BERNARDINO
DEPARTMENT OF PUBLIC WORKS
Prepared October 25, 2011
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Engineers Report—AD 1068
ENGINEER'S REPORT
for
ASSESSMENT DISTRICT NO. 1068
FILED in the office of the City Clerk of the City of San Bernardino on the day of ,2011.
CITY CLERK
City of San Bernardino
PRELIMINARY approval by the Mayor and Common Council of the City of San Bernardino, County of San
Bernardino, State of California on the day of , 2011.
CITY CLERK
City of San Bernardino
FINAL approval by the Mayor and Common Council of the City of San Bernardino, County of San Bernardino,
State of California on the day of , 2012.
CITY CLERK
City of San Bernardino
I HEREBY CERTIFY that the foregoing assessments,together with the Diagram of Assessment District No. 1068,
were approved and confirmed by the Mayor and Common Council of the City of San Bernardino, County of San
Bernardino, State of California on the day of , 2012.
CITY CLERK
City of San Bernardino
2
Engineers Report—AD 1068
CITY OF SAN BERNARDINO
DEPARTMENT OF PUBLIC WORKS
ENGINEER'S REPORT
ASSESSMENT DISTRICT NO. 1068
(Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and
Storm Drain Maintenance Assessment District)
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
maintenance of landscaping areas along Central Avenue, Tippecanoe Avenue, a detention basin south of Central
Avenue and the storm drain connecting to the detention basin and terminating at the Santa Ana River. These
improvements are relative to the proposed development within Parcel Map No. 17887.The signatures on the petition
represent 100% of the property owners of the parcels within the proposed boundaries of the district. This petition
was the result of a requirement placed upon the developer of Parcel Map No. 17887 by the City to relieve the City
from having to maintain the areas of landscaping.
AUTHORIZATION -- On ,2011,by action of the Mayor and Common Council
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,
Detention Basin and Storm Drain Maintenance Assessment District)pursuant to the provisions of San Bernardino
City Municipal Code Chapter 12.90 and this Report has been prepared and is hereby submitted pursuant to said
provisions and in accordance with Resolution of Intention No. adopted by the Mayor and
Common Council of the City of San Bernardino on the day of 52011.
ADVANCE OF ESTIMATED COSTS OF PROCEEDINGS--On October 20,2010,pursuant to Section
12.94.030 of the Municipal Code, the developer deposited $5,900 with the City to cover the estimated cost of
proceedings.At the conclusion of the proceedings and after confirmation of all costs,any amounts remaining will be
returned to the developer. If actual costs are more than the deposit,then the remainder can either be paid in a lump
sum by the developer or assessed against the properties involved.
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.
DESCRIPTION OF IMPROVEMENTS-
- The improvements 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, and the east side of Tippecanoe
Avenue, south of Central Avenue; and,
- The detention basin and all appurtenances south of Central Avenue,located within Parcel 8 of Parcel Map
No. 17887; and,
- Two catch basins located within Central Avenue east of the detention basin, the storm drain and all
appurtenances connecting to the catch basins along the north side of Central Avenue, which travels west
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Engineers Report—AD 1068
towards Tippecanoe Avenue and crosses south under Central Avenue and terminates at the detention basin;
and,
- The storm drain and all appurtenances connecting to the detention basin and terminating at the Santa Ana
River, all within the District boundaries.
Maintenance of the detention basin will consist of periodic cutting of native vegetation and removal of debris and
silt as needed. Maintenance of the storm drains will consist of periodic removal of debris and silt,which includes
the use of a vacuum truck and replacement of any appurtenant equipment related to such storm drains.
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.
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:
The centerline of Tippecanoe Avenue on the west, and the northerly, easterly, and southerly
boundary lines of Parcel Map No. 17887 on the north, east and south respectively.
VICINITY MAP -- A vicinity map showing the general location of the proposed Assessment District is
attached as Exhibit"1".
DISTRICT BOUNDARY MAP--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".
DISTRICT DIAGRAM-- A proposed Diagram of the Assessment District has been prepared and will be
filed with the City Clerk after preliminary approval of this Report and will be filed with the County Recorder and
recorded in the office of the City Engineer after final approval of this Report,confirmation of the Assessment Roll
and Resolution Ordering Work. A reduced copy of the Assessment District Diagram is attached as Exhibit"311.
NOTICE OF EXEMPTION-- a "Notice of Exemption" declaring a Categorical Exemption was prepared
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
Exhibit"4".
METHOD OF ASSESSMENT AND DETERMINATION OF BENEFIT—Landscaping and its proper
maintenance enhances the esthetics of any given area and the benefit received by the owners of properties in the area
is determined to be equal to the area of each lot or parcel that utilizes the landscaped areas either as ingress and
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,
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
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
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
4
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
Assessment Unit). Based upon the commercial parcels proposed to be developed,the total assessment units for the
district will be 887.43.
The benefit received by the parcels within the boundaries of the district is determined to be of more than ordinary
public benefit,thus each parcel within the district being assessed receives a special benefit from the improvements.
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
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:
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
assessable to the District.
2. Areas of maintenance that front on secondary arterial streets,as determined by the Circulation Plan of
the City's General Plan,are determined to be 10%general benefit and the proportional costs thereof are
not assessable to the District.
3. Areas of maintenance that front on collector streets,as determined by the Circulation Plan of the City's
General Plan, are determined to be 5% general benefit and the proportional costs thereof are not
assessable to the District.
4. Areas that front on local streets are determined to be 100%special benefit and are 100% assessable to
the District.
*These percentages are based on the traffic circulation for the various street classifications.
Based on the City of San Bernardino's current circulation element of its General Plan, this portion of Tippecanoe
Avenue is designated as a major 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
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.
Publicly owned lands within the Assessment District,if any,are subject to assessments,unless they receive
no benefit with the exception of public right of way, which is not subject to assessments.
METHOD OF FINANCING--The estimated cost of the first year's maintenance shall be assessed against
the properties involved within the current fiscal year or the fiscal year following the establishment of the district.
Depending upon when the costs are assessed and when the actual maintenance is assumed by the City,this assessed
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
thereafter to establish a source of pre-funding each year's costs, or may be assessed for the actual contract and
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Engineers Report—AD 1068
incidental costs plus interest. Interest will be included in the assessment costs for any amounts or portions not pre-
funded through previous assessments. If there is a surplus from the estimated assessment in the event costs are pre-
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,
and with the same penalties and interest as in the case of taxes levied for property taxes. Table 1 sets forth the
estimated costs of the first year's maintenance. No Bonds will be sold relative to this Assessment District.
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.
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
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
to the City's existing General Plan.
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
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
determining the assessments as described is applied. Pursuant to Chapter 12.90 of the San Bernardino Municipal
Code, such reapportionment's do not require the recording of an amended Diagram Map.
FUTURE INCREASES -- Due to the nature of landscape maintenance; it is anticipated that there will be
future increases in assessments as contract,labor,water and energy costs are all subject to future increases.Annual
increases may be increased without further notice or public hearing by a percentage equal to the increase in the
Consumer Price Index (CPI) for all Urban Consumers in the Los Angeles-Orange County-Inland Empire area,
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
event will an increase, if needed, exceed 5% without a majority approval of property owners in the district.
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Engineers Report—AD 1068
TABLE I
ESTIMATED FIRST YEAR'S COST SUMMARY
ASSESSMENT DISTRICT NO. 1068
(Tippecanoe Avenue and Central Avenue Area Landscape, Detention Basin and
Storm Drain Maintenance Assessment District)
Description of Costs Quantity Unit CosvUnit Annual Cost
A Maintenance of Turf/Irrigation - S .Ft 0.20 $ -
B 1VLintename of Groundeover/Shnibs4mgation 37,981 Sq.Ft 0.20 $ 7,596.25
C Maintenance of Trees/Irrigation 164 Ea. 50.00 $ 8,200.00
D LANDSCAPE AREA SUBTOTAL: (A+B) 37,981
E Irrigation Costs(water and energy) 37,981 S .Ft 0.10 $ 3,798.13
F Detention Basin V eatation Abatement/SloW Repair 1 LS. - $ 1,500.00
Detention Basin Mairtenance Cost-25 Cubic Yantis(Estimated
G based on four(4)storm events a year) 1 LS. - 1 $ 5,640.00
Stan Drain Maintenance Cost-(Estimated based on four(4)
H storm events a year) 1 LS. - $ 6,772.80
1 TOTAL MAINIENANCE AREA:04) 37,982 Sq.Ft.
J Weekly Inspection(labor,overhead)(Total Annual Hrs) 52 Hours 30.00 $ 1,560.00
K Annual Assmt.Engineering(labor+overhead) 5 Hours 33.00 $ 165.00
L Contract Adrrrinstration 0abor+overhead) 15 Hours 22.00 $ 330.00
M Incidentals(materials,supplies,other costs) 1 LS. 100.00 $ 100.00
N Outside Departrnent Services(labor+overhead) 1 LS. 400.00 $ 400.00
O Subtotal(A thru N) $ 36,062.18
P General Benefit Calculations:
Q -Area of General Benefit(Central Avenue) 32,%7 S .Ft.
R Percent of Total Area ( /1) 86.80%
S Subtotal (O*R) $ 31,300
T General Benefit Percentage 100/0
U General Benefit Amount Not Assessable(S*T) $ 3,130.04 $ (3,130.04)
V -Area of General Benefit(TWpecmweAvenue) 5,014 S .Ft
W Percent of Total Area (V/1) 13.20%
X Subtotal ((O-F-G-H)*W $ 2,924.08
Y General Benefit Percentage 15%
Z General Benefit Amount Not Assessable(X*Y) $ 438.61 $ (438.61)
AA Subtotal(O+U+Z) $ 32,493.52
BB Estimated Interest for non refunded arrrourts* 6% $ 1,949.61
CC Subtotal(AA+BB) $ 34,443.13
DD Adjustnnent(Rounding for Assessment Roll) $ (1.97)
TOTAL FIRST YEAR'S FSI MATED COSTS(T+U) $ 34,441.16
ASSESSMENT CALCULATION -- Applying the Method of Assessment and Assessment Spread described above, the
following formula is used to determine the assessment amount per Assessment Unit:
Total Costs -Total Assessment Units = Cost per Assessment Unit
Thus
$34,441.16 _887.43 =$38.81 per Assessment Unit per year.
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Engineers Report—AD 1068
ENGINEER'S STATEMENT
This Report,together with the Assessment District Boundary Map,Assessment Diagram and Proposed Assessment
Roll has been prepared and is being filed pursuant to and in compliance with Chapter 12.90 of the San Bernardino
Municipal Code and also in compliance with the requirements set forth in Article XIBD of the California
Constitution for the establishment of Assessment District No.1068(Tippecanoe Avenue and CentralAvenue Area
Landscape, Detention Basin and Storm Drain Maintenance Assessment District).
Date Robert Eisenbeisz, City Engineer
B
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Engineers Report—AD 1068
List of Exhibits
1. Vicinity Map..................................................... Exhibit "I"
2. Reduced copy of Boundary Map....................... Exhibit "2"
3. Reduced copy of Assessment District Diagram Exhibit"3"
4. Copy of"Notice of Exemption"......................... Exhibit "4"
5. Proposed Assessment Roll (FY 2012/2013)...... Exhibit "5"
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CITY OF SAN BERNARDINO PUBLIC WORKS DEPARTMENT
NOTICE OF EXEMPTION
FROM: CITY OF SAN BERNARDINO TO: OFFICE OF PLANNING AND RESEARCH
PUBLIC WORKS DEPARTMENT 1400 TENTH STREET, ROOM 121
300 N. "D"STREET SACRAMENTO, CA 95814
SAN BERNARDINO, CA 92418
X CLERK OF THE BOARD
COUNTY OF SAN BERNARDINO
385 NORTH ARROWHEAD AVENUE
SAN BERNARDINO, CA 92415
Project Title: ASSESSMENT DISTRICT NO. 1068
Project Location-Specific: TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE,
DETENTION BASIN AND STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT
Project Location-City: SAN BERNARDINO Project Location—County: SAN BERNARDINO
Description of project: SBMC 12.90 PROCEEDINGS FOR THE ESTABLISHMENT OF A LANDSCAPE
MAINTENANCE ASSESSMENT DISTRICT
Name of Public Agency Approving Project: CITY OF SAN BERNARDINO
Name of Person or Agency Carrying out Project: CITY OF SAN BERNARDINO
Exem t Status: (check one)
7 Ministerial(Sec.21080(b)(1); 15268);
❑ Declared Emergency(Sec.21080(b)(3); 15269(a));
❑ Emergency Project(Sec.21080(b)(4); 15269(b)(c));
Ek Categorical Exemption.State type and section number: Class 1 15301(c) Res.90-217,Sec. 132c
❑ Statutory Exemptions.State code number:
Reason why project is exempt: ESTABLISHMENT PROCEEDINGS FOR ASSESSMENT DISTRICT TO
PROVIDE FUNDING SOURCE FOR MAINTENANCE OF LANDSCAPING
Lead Agency
Contact Person: RYAN SANDOVAL Area Code/Telephone/Extension: (909) 384-5226
If filed by applicant:
1. Attach certified document of exemption finding.
2. Has a notice of exemption been filed by the public agency approving the project? ❑ Yes ❑ No
Signature: Date: Title: Real Property Specialist
® Signed by Lead Agency ❑ Signed by Applicant Date received for filing at OPR:
*78—C
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— 0- 2012
EXHIBIT "4" e OC.
v rage 7o 1
CITY OF SAN BERNARDINO
PROPOSED
2012 / 2013 ASSESSMENT ROLL -AD 1068
TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE,DETENTION BASIN AND STORM DRAIN
MAINTENANCE ASSESSMENT DISTRICT
Assessment No. Parcel No. or Lot No. Assessment Amt.
1 0136-361-30 $511.52
2 0136-361-31 $1,183.32
3 0136-361-32 $1,864.04
4 0136-361-33 $5,350.73
5 0136-361-34 $11,814.93
6 0136-371-38 $9,607.80
7 0280-251-65 $3,587.60
8 0280-251-66 $0.00
9 0280-251-67 $521.22
TOTALS: 9 Parcels $34,441.16
1068 12012 EXHIBIT "5" Page i of i
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1 RESOLUTION NO.
a�
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF a
3 A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE
4 PROPOSED ASSESSMENT DISTRICT NO. 1068 (TIPPECANOE AVENUE AND
CENTRAL AVENUE AREA LANDSCAPE, DETENTION BASIN AND STORM =
5 DRAIN MAINTENANCE ASSESSMENT DISTRICT).
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6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
7 CITY OF SAN BERNARDINO AS FOLLOWS:
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8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized co
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'I 9 and directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, a
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10 the form of which is attached hereto as Exhibit"1" and made part hereof, relative to proposed
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Assessment District No. 1068, known as the Tippecanoe Avenue and Central Avenue Area Ln
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13 Landscape, Detention Basin and Storm Drain Maintenance Assessment District,as set forth in
14 the Engineer's Report for said Assessment District, on file in the office of the City Clerk. o
15 SECTION 2. Authorization to execute the Landscape Maintenance Services
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16 00
Agreement is rescinded if the parties fail to execute it within ninety (90) days of the passage o
17 0
of this Resolution. a
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO
1 AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE E
SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1068
2 (TIPPECANOE AVENUE AND CENTRAL AVENUE AREA LANDSCAPE,DETENTION BASIN AND °
STORM DRAIN MAINTENANCE ASSESSMENT DISTRICT). a
3
4
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
5
6 and Common Council of the City of San Bernardino at a meeting x
7 thereof, held on the day of , 2012,by the following vote,to wit: d
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Council Members: AYES NAYS ABSTAIN ABSENT Co
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10 MARQUEZ <
11 JENKINS
12 BRINKER o
13 SHORETT
14 KELLEY •N
15
JOHNSON
16 W
17 MCCAMMACK o
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Rachel G. Clark, CMC, City Clerk
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The foregoing resolution is hereby approved this day of 2012_
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23 Patrick J. Morris,Mayor
City of San Bernardino z
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Approved as to form: E'
25 JAMES F. PENMAN, o
26 City ttorney Cl)
27 By.
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EXHIBIT 661"
RECORDING REQUESTED BY: ._
City of San Bernardino v
300 North"D"Street E
San Bernardino,CA 92418 P
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When Recorded,Mail To: _
City of San Bernardino
Real Property Section,3rd Floor
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300 North"D"Street
San Bernardino,CA 92418 =
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AGREEMENT OF PROPERTY OWNER �o
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES o
FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT Q
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(Tippecanoe Avenue and Central Avenue Area)
THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE 0
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MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE
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ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of this day "
of 2012, and evidences the agreement by and between (i) HW r-
0 SOUTHGATE,L.P.,a California limited partnership(the"Property Owner"),as the owner of certain N
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
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"Pro e "),as more fully described in Exhibit"A"attached hereto and incorporated herein,and(ii)
the CITY OF SAN BERNARDINO, a municipal corporation and charter city of the State of E
California(the
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THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS: o
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Section 1. Obligations of Property Owner.
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(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 o
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
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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 w
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 E
includes no property other than the Property.
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AD 1068—Maintenance Agreement Page 1
Packet Pg. 304
(b) To the extent that the Property Owner complies with the requirements of this ^
Maintenance Agreement, including the maintenance standards as set forth in Exhibit"C"attached
hereto and incorporated herein, Assessment District No. 1068 shall be considered to be a"default
assessment district"for which the City shall forebear the collection of assessments for the Property
Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the a
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
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forbear the collection of the first year assessments for Assessment District No. 1068, and the E
Property Owner shall pay the City the first year assessments for Assessment District No. 1068,which
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the City shall collect and hold in reserve until such time as this Maintenance Agreement is
terminated, at which time the City may apply such reserve to the costs of Assessment District No.
1068. Upon a default by the Property Owner of any material obligation incurred pursuant to this
Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall 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
collected by the City to pay for the landscape maintenance services performed by the City. Such Q
assessment amount(to be reflected on the annual property tax bill) as may then be collected by the
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City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting
from the default by the Property Owner under this Maintenance Agreement for the annual
maintenance of the landscaping and administration and collection of assessments related to
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Assessment District No. 1068 during the fiscal year of the City in which the default occurs and in r
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each subsequent fiscal year thereafter. Such assessments(net of the 15%of costs along Tippecanoe
Avenue and 10%of costs along Central Avenue deemed to be the general benefit portion to be paid r-
by the City)shall be allocated to the Property Owner as set forth in the Engineer's Report referenced •N
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..
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(c) The City Engineer or his designee,has prepared the Engineer's Report for Assessment a,
District No. 1068 dated October 25, 2011, on file with the City Clerk as File No. 14.40-167 (the a
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"Engineers' Report").
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(d) Beginning with the second year assessments and during the remaining term of this o
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 CD
inspections, annual assessment engineering, and outside department services (collectively the
"Administrative Costs"),which are described in the Engineer's Report and the formation documents o
for Assessment District No. 1068.
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Section 2. Landscape Maintenance. ^
(a) The Property Owner recognizes that the City has initiated and completed proceedings a
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. ¢
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(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
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incurred by the City for the following:
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(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 furnishing of services and materials for
the ordinary and usual maintenance of the landscaping,including providing o
for the growth,health, cultivation,irrigation,trimming, spraying,fertilizing Q
or treating for disease or injury,the removal of trimmings,rubbish,debris and
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other solid waste,including appurtenant contract administration,inspection 9�
and incidentals thereto, all as more extensively set forth in Exhibit "C" W
attached hereto and incorporated by this reference as if set forth fully herein;
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and
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(ii) incidental costs associated with the maintenance and servicing described in
subparagraph (i), above, including the costs associated with (1) the .2
preparation of annual engineering reports, (2) the levy of the annual
assessments, and (3) the collection of the assessments as set forth in this W
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Maintenance Agreement.
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Section 3. Termination Right by City Engineer.
(a) City Engineer shall mean the City Engineer for the City, or his/her designee.
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(b) In accordance with this Section 3 (b)herein,the City shall have the right to terminate o
this Maintenance Agreement in the event the Property Owner shall have failed to perform the J
maintenance or the furnishing of services described in Section 1(b)above and/or Exhibit"C"within 0
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 o
Property Owner to perform the maintenance or furnishing of the services described in such notice as
required by this Maintenance Agreement(subject to prudent seasonal planting practices).Upon the
expiration of such 30-day notice and cure period,in the event the Property Owner has not cured the
default(subject to prudent seasonal planting practices),the City(if such termination is first approved w
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 0)
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
AD 1068—Maintenance Agreement Page 3
Packet Pg. 306
7.B.i
have the right to terminate this Maintenance Agreement in the event the Property Owner shall have ^
failed to perform the maintenance or furnishing of the services described in Section 1(b) and/or
Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a
hazardous safety situation in the professional opinion of the City Engineer, following at least 48
hours prior written notice to the Property Owner to completely cure said hazardous safety situation, Q
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
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recommendations for the termination of this Maintenance Agreement. It shall be sufficient for
purposes hereof that the action of the Mayor and Common Council shall be to declare a default
hereunder by the Property Owner,and upon the expiration of the applicable notice period without an 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,the City shall thereupon no longer deem any portion of Assessment District Q
No. 1068 to be a"default assessment district" as to the Property and the City shall undertake the N
regular periodic landscape maintenance and seek collection of the annual landscape maintenance 9�
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amount against the Property as provided in this Maintenance Agreement.
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(c) The sole right of the Property Owner to contest any determination by the City for the r
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.
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(d) Unless waived by the City Engineer,at his sole discretion,the Property Owner shall E
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 Q
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 0
determined by the City Engineer(if such termination is first approved by the Mayor and Common o
Council as provided above), by the City Engineer sending a notice, within 30 days after the
occurrence of such third default, advising the Property Owner of said termination of this
Maintenance Agreement, without the necessity of having given the Property Owner a notice of
default and cure opportunity with respect to such third default. If a waiver is granted,then the City o
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 w
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 w
such subsequent default.
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(e) The Property is currently composed of nine(9)separate parcels(each,a"Parcel"). If
a Parcel is divided into one or more small subdivisions (each a "Lot")by Property Owner or any r
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AD 1068—Maintenance Agreement Page 4
Packet Pg. 307
successor in interest,the obligations of this Agreement shall be apportioned among the owners(each
an"Owner")of each Lot in proportion to the area of each Lot. In the event of a default by an Owner
of one Lot or Parcel, including any obligations pursuant to Section 1(b) above, the rights and
remedies available to City including those set forth in this Agreement,may only be enforced against
that owner 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
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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
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.
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To City: City of San Bernardino a
City Engineer °
City Hall, Third Floor W-
300 North"D" Street W
San Bernardino, California 92418 LO
To Property HW Southgate,L.P.,
Owner: c/o Hillwood Development Company, LLC
268 West Hospitality Lane, Suite 105
San Bernardino, CA 92408
Attn: John M. Magness
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Fax: (909) 382-0073
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an d Hillwood Development Company, LLC
5430 LBJ Freeway, Suite 800 Q
Dallas, Texas 75240 R
Attn: Patricia("Patty") Brown Edwards o
Fax: (972) 201-2889 0
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(b) Such written notices,demands and communications may be sent in the same manner CD
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, o
regardless of whether or when any return receipt is received by the sender on the date set forth on Cn
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. 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
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AD 1068—Maintenance Agreement Page 5
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has not provided an address for notice,any other party may deliver notice to such party at the address
shown as the address for the owner of the property in question in the county tax records.
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Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its
successors and assigns hereby acknowledges and consents to the collection of any special
assessments as may hereafter be assessed by the City under Section 2 of this Maintenance Q
Agreement,at the same time and in the same manner as County of San Bernardino general property
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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 =
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enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any a
assessment lien and independently pursuing judicial remedies for the enforcement of any assessment
lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable
California law. Q
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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 Q
Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph
hereof.
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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 r
1 of the Engineer's Report.
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Section 8. City Confirmation. On request from time-to-time of the Property Owner,the In
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
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known to the City Engineer.
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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 Q
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 0
Section 12940 of the Government Code. Violation of this provision may result in the imposition of
penalties referred to in Labor Code, Section 1735.
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Section 10. Entire Agreement, Amendment and Termination. This Maintenance
Agreement constitutes the entire agreement between the parties with respect to any matter referenced o
herein and supersedes any and all other prior writings and oral negotiations. The terms of this
Maintenance Agreement shall prevail over any inconsistent provision in any other contract document
appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance
Agreement may be amended or terminated only by written agreement, signed by the parties in w
interest at the time of such amendment or termination,except as also provided in Section 3 regarding
termination.
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Section 11. Attorneys' Fees. In the event that litigation is brought by any party in
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connection with this Maintenance Agreement,the prevailing party shall be entitled to recover from
the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any
of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney
and members of his office in connection with that action,shall be considered as"attorneys'fees"for
the purposes of this Maintenance Agreement.
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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
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pertaining to conflict of laws. In the event of any legal action to enforce or interpret this a
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.
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Section 13. Indemnification and Hold Harmless. Property Owner shall protect, defend, co
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 Q
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 9�
acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the W
performance of this Maintenance Agreement. LO
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Section 14. Insurance
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(a) Minimum Scope and Limits of Insurance. Property Owner shall obtain and maintain °-
during the life of this Agreement all of the following insurance coverages:
(i) Comprehensive general liability, including premises-operations, CD
products/completed operations, broad form property damage, blanket E
contractual liability,personal injury with a policy limit of not less than One a,
Million Dollars($1,000,000.00),combined single limits,per occurrence and Q
aggregate. R
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(ii) Automobile liability for owned vehicles,hired,and non-owned vehicles,with o
a policy limit of not less than One Million Dollars($1,000,000.00),combined
single limits,per occurrence and aggregate.
(iii) Workers' compensation insurance as required by the State of California. o
(b) Endorsements. The comprehensive general liability insurance policy shall contain or
be endorsed to contain the following provisions: 72
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(i) Additional insured: "The City of San Bernardino and its elected and
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appointed boards,officers,agents,and employees are additional insured with E
respect to Property Owner's performance under this Agreement with City."
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(ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the ^
coverage reduced,until thirty(30)days after written notice is given to City."
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(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." a
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(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
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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 a
be held responsible for payments of damages to persons or property.
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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 N
incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in,
under or to this Maintenance Agreement.
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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
or to be a full or accurate description of the content thereof and shall not in any way affect the r-
meaning or interpretation of this Maintenance Agreement.
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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 E
be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall
be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of Q
any of the provisions of this Maintenance Agreement.
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Section 18. Waiver. The delay or failure of either party at any time to require performance
or compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized
representative of the party against whom enforcement of a waiver is sought. The waiver of any right o
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.
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Section 19. Severability. Every provision of this Maintenance Agreement is and shall be
construed to be a separate and independent covenant. Without limiting the generality of the E
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 .
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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.
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Section 20. Counterparts. This Maintenance Agreement may be executed in one or more Q
counterparts,each of which shall be deemed an original. All counterparts shall be construed together
and shall constitute one agreement.
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Section 21. Authori . The persons executing this Maintenance Agreement on behalf of =
the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on
behalf of said parties and that by doing so,the parties hereto are formally bound to the provisions of v
this Maintenance Agreement.
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Section 22. Covenant Running with the Land. The provisions of this Maintenance
Agreement shall run with the Property and any portion thereof or interest therein, and shall be
binding upon and inure to the benefit of all persons having or acquiring any interest in the Property <
or any portion thereof, and their respective successive owners and assigns. v�
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Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement W
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.
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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.
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CITY:
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City of San Bernardino =
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By: EXHIBIT COPY
CHARLES E. MCNEELY, City Manager
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ATTEST:
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RACHEL CLARK, City Clerk
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Approved as to Form:
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EXHIBIT COPY
JAMES F. PENMAN, City Attorney a
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PROPERTY OWNER:
HW SOUTHGATE, L.P., E
a California limited partnership
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By: DTC Phase 11, LLC, Q
a Delaware limited liability company S
its general partner a:
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EXHIBIT COPY
By: 2
Name: B
Title: a
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STATE OF TEXAS §
§ LO
COUNTY OF DALLAS §
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This instrument was acknowledged before me on 2011, by =
of DTC Phase Il, LLC, a
Delaware limited liability company, on behalf of said limited liability company, in its capacity as
general partner of HW Southgate, L.P., a California limited partnership, on behalf of said limited
partnership.
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Notary Public, State of Texas
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Consent 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 Q
Document No.2008-0145378 in the Official Records of San Bernardino County,California,to this
Maintenance Agreement.
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WELLS FARGO BANK,NATIONAL ASSOCIATION, as
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agent for and on behalf of Wells Fargo Bank,National
Association and any and all other financial institutions
identified in an Intercreditor Agreement executed by Agent
and such Lenders a
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By: Q
J. Kent Howard
Senior Vice President
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WELLS FARGO BANK,
NATIONAL ASSOCIATION r
By:
J. Kent Howard °-
Senior Vice President
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STATE OF TEXAS §
§ ss.
COUNTY OF DALLAS §
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This instrument was ACKNOWLEDGED before me on , 2011,by J.Kent
Howard,the Senior Vice President of Wells Fargo Bank,National Association, a national banking o
association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, ❑
National Association and any and all other financial institutions(collectively,"Lenders")identified
in an Intercreditor Agreement executed by Agent and such Lenders.
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[SEAL] o
My Commission Expires:
Notary Public, State of Texas w
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Printed Name of Notary Public
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EXHIBIT "A"
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PROPERTY DESCRIPTION
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Parcel Map No. 17887, filed in Book 237, Pages 66-73 of Parcel Maps, in the office of the San c
Bernardino County Recorder, State of California.
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EXHIBIT "B" ^
PROPERTY OWNER MAINTENANCE AREAS m
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The areas to be maintained by the property owner will be landscaping and all appurtenances along Q
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
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EXHIBIT "C" _
PROPERTY OWNER MAINTENANCE STANDARDS
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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 Q
this Maintenance Agreement and,as between the City and the Property Owner,shall be responsible S
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
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Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. a
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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
assessment districts on file in the office of the City Engineer.
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All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as
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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 LO
determined based upon the season of the year. �
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. '+ RECORDING REQUESTED BY:
City of San Bernardino
300 North"D"Street E
San Bernardino,CA 92418
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When Recorded,Mail To:
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Real Property Section,3rd Floor L
300 North"D"Street
San Bernardino,CA 92418 _
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AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES o
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FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT
(Tippecanoe Avenue and Central Avenue Area)
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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 (i) HW
SOUTHGATE,L.P.,a California limited partnership(the"Property Owner"),as the owner of certain .2
property within the boundaries of the City of San Bernardino Assessment District No. 1068 (the
"Assessment District No. 1068"),which property is the subject of this Maintenance Agreement(the
'Prop '),as more fully described in Exhibit"A"attached hereto and incorporated herein,and(ii)
the CITY OF SAN BERNARDINO, a municipal corporation and charter city of the State of E
California(the
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THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS: a
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Section 1. Obligations of Property Owner.
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(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 o
other applicable law, including without limitation, Streets and Highways Code Section 22500, et 0
M., for the purpose of providing for the private maintenance and operation of certain landscaping
within agreed upon areas of Assessment District No. 1068. Exhibit "B" attached hereto and
incorporated herein,reflects the boundaries of Assessment District No. 1068 and describes the areas p
thereof that are the subject of this Maintenance Agreement which are intended to be maintained by
the Property Owner (the "Property Owner Maintenance Areas"). Assessment District No. 1068
includes no property other than the Property.
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7.B.j
(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
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hereto and incorporated herein, Assessment District No. 1068 shall be considered to be a"default a
assessment district"for which the City shall forebear the collection of assessments for the Property E CD
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 Q
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 c
the City shall collect and hold in reserve until such time as this Maintenance Agreement is
terminated, at which time the City may apply such reserve to the costs of Assessment District No. _
1068. Upon a default by the Property Owner of any material obligation incurred pursuant to this
Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall a
consider the Property Owner Maintenance Areas to be treated the same as any other property within co
the other landscape maintenance assessment districts in the City for which an annual assessment is o
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collected by the City to pay for the landscape maintenance services performed by the City. Such o
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assessment amount(to be reflected on the annual property tax bill) as may then be collected by the
City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting
from the default by the Property Owner under this Maintenance Agreement for the annual W
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 v
each subsequent fiscal year thereafter. Such assessments(net of the 15%of costs along Tippecanoe
Avenue and 10%of costs along Central Avenue deemed to be the general benefit portion to be paid
by the City)shall be allocated to the Property Owner as set forth in the Engineer's Report referenced •N
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..
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(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 Q
"Engineers' Report").
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(d) Beginning with the second year assessments and during the remaining term of this o
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 s
"Administrative Costs"),which are described in the Engineer's Report and the formation documents o
for Assessment District No. 1068. cn
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Section 2. Landscape Maintenance. ^
(a) The Property Owner recognizes that the City has initiated and completed proceedings
to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below E
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for the maintenance and servicing of public landscaping improvements on the Property Owner
Maintenance Areas situated within Assessment District No. 1068. Q
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(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 c
incurred by the City for the following: CU
(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 furnishing of services and materials for
the ordinary and usual maintenance of the landscaping,including providing o
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for the growth,health,cultivation,irrigation,trimming,spraying,fertilizing o
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or treating for disease or injury,the removal of trimmings,rubbish,debris and
other solid waste, including appurtenant contract administration,inspection
and incidentals thereto, all as more extensively set forth in Exhibit "C"
attached hereto and incorporated by this reference as if set forth fully herein; LO
and
(ii) incidental costs associated with the maintenance and servicing described in
subparagraph (i), above, including the costs associated with (1) the .0
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.
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Section 3. Termination Right by City En ig neer.
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(a) City Engineer shall mean the City 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 o
this Maintenance Agreement in the event the Property Owner shall have failed to perform the
maintenance or the furnishing of services described in Section 1(b)above and/or Exhibit"C"within
the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior
written notice from the City Engineer, or his/her designee, to the Property Owner ordering the o
Property Owner to perform the maintenance or furnishing of the services described in such notice as N
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 p
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 U
termination is first approved by the Major and Common Council as hereinafter provided)shall also a
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7.B.j
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 r
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 E
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 Q
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 c
Council shall be presented with the facts and circumstances of any alleged default together with any a
recommendations for the termination of this Maintenance Agreement. It shall be sufficient for =
purposes hereof that the action of the Mayor and Common Council shall be to declare a default
hereunder by the Property Owner,and upon the expiration of the applicable notice period without an a
adequate cure having been completed,no further official action shall be required by the Mayor and co
Common Council for such termination to be effective. Upon the termination of this Maintenance o
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Agreement by the City,the City shall thereupon no longer deem any portion of Assessment District
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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.
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(c) The sole right of the Property Owner to contest any determination by the City for the
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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 y
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.
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(d) Unless waived by the City Engineer,at his sole discretion,the Property Owner shall E
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 Q
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 0
determined by the City Engineer(if such termination is first approved by the Mayor and Common o
Council as provided above), by the City Engineer sending a notice, within 30 days after the
occurrence of such third default, advising the Property Owner of said termination of this
Maintenance Agreement, without the necessity of having given the Property Owner a notice of
default and cure opportunity with respect to such third default. If a waiver is granted,then the City o
Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default,
unless waived by the City Engineer,by sending notice,within 30 days after the occurrence of such
default,advising the Property Owner of said termination of this Maintenance Agreement without the
necessity of having given the Property Owner a notice of default and cure opportunity with respect to p
such subsequent default.
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(e) The Property is currently composed of nine(9)separate parcels(each,a"Parcel"). If
a Parcel is divided into one or more small subdivisions (each a"Lot")by Property Owner or any Q
AD 1068—Maintenance Agreement Page 4
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®" successor in interest,the obligations of this Agreement shall be apportioned among the owners(each
an"Owner")of each Lot in proportion to the area of each Lot. In the event of a default by an Owner r
of one Lot or Parcel, including any obligations pursuant to Section 1(b) above, the rights and a
remedies available to City including those set forth in this Agreement,may only be enforced against E
that owner and its interest in the Lot or Parcel upon which the default occurred.
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Section 4. Notices and Communications.
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(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 a.
to the principal office of the parties, as applicable, as designated below. co
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To City: City of San Bernardino
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City Engineer
City Hall, Third Floor
300 North"D" Street Ix
San Bernardino, California 92418
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To Property HW Southgate, L.P.,
Owner: c/o Hillwood Development Company, LLC
268 West Hospitality Lane, Suite 105 °-
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San Bernardino, CA 92408
Attn: John M. Magness
Fax: (909) 382-0073
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and Hillwood Development Company,LLC
5430 LBJ Freeway, Suite 800 a
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Dallas, Texas 75240
Attn: Patricia("Patty")Brown Edwards o
Fax: (972) 201-2889 0
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(b) Such written notices,demands and communications may be sent in the same manner 2
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, o
regardless of whether or when any return receipt is received by the sender on the date set forth on
such return receipt,on the day that it is dispatched by messenger for immediate personal delivery,the
date sent by FAX and confirmed by First Class United States Mail or two calendar days after it is
placed in the United States Mail or personal delivery as heretofore provided. p
(c) Either party may change its address for notice by giving written notice of such change
to the other party not less than ten days prior to the effective date of such address change. If a party
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has not provided an address for notice,any other party may deliver notice to such party at the address
shown as the address for the owner of the property in question in the county tax records. r
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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 S
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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 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
California law.
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Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force o
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and effect for a term of 30 years and shall terminate,unless terminated sooner as permitted in this
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Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph
hereof.
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Section 7. First Year's Assessment. The 2012/2013 assessment to the Property Owner LO
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by the City pursuant to Assessment District No. 1068 shall be limited to the amounts shown on Table
1 of the Engineer's Report.
Section 8. City Confirmation. On request from time-to-time of the Property Owner,the °-
City Engineer shall confirm in writing,addressed as requested by the Property Owner,the existence
of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then
known to the City Engineer.
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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 Q
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 0
Section 12940 of the Government Code. Violation of this provision may result in the imposition of o
penalties referred to in Labor Code, Section 1735.
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Section 10. Entire Agreement, Amendment and Termination. This Maintenance
Agreement constitutes the entire agreement between the parties with respect to any matter referenced o
herein and supersedes any and all other prior writings and oral negotiations. The terms of this
Maintenance Agreement shall prevail over any inconsistent provision in any other contract document
appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance ,
Agreement may be amended or terminated only by written agreement, signed by the parties in p
interest at the time of such amendment or termination,except as also provided in Section 3 regarding
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termination. E
Section 11. Attorneys' Fees. In the event that litigation is brought by any party in .2
AD 1068—Maintenance Agreement Page 6
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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 r
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 E
and members of his office in connection with that action,shall be considered as"attorneys'fees"for
the purposes of this Maintenance Agreement. a
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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 c
pertaining to conflict of laws. In the event of any legal action to enforce or interpret this a
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.
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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
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from any and all claims, liabilities, expenses, including attorneys' fees, damage to property or o
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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 W
performance of this Maintenance Agreement.
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Section 14. Insurance
(a) Minimum Scope and Limits of Insurance. Property Owner shall obtain and maintain 2
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during the life of this Agreement all of the following insurance coverages:
(i) Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket E
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 a
aggregate.
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(ii) Automobile liability for owned vehicles,hired,and non-owned vehicles,with o
a policy limit of not less than One Million Dollars($1,000,000.00),combined
single limits,per occurrence and aggregate.
(iii) Workers' compensation insurance as required by the State of California. o
(b) Endorsements. The comprehensive general liability insurance policy shall contain or
be endorsed to contain the following provisions: ,
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(i) Additional insured: "The City of San Bernardino and its elected and
appointed boards,officers,agents,and employees are additional insured with
respect to Property Owner's performance under this Agreement with City." U
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7.B.j
(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." T
(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." Q
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(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. a
(d) Non-limiting. Nothing in this Section shall be construed as limiting in any way,any .2
indemnification provision contained in this Agreement,or the extent to which Property Owner may a
be held responsible for payments of damages to persons or property.
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Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered
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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.
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Section 16. Headings. Paragraphs and subparagraph headings contained in this
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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. •y
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Section 17. Construction. The parties have participated jointly in the negotiation and W
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 E
be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall
be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of Q
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any of the provisions of this Maintenance Agreement.
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Section 18. Waiver. The delay or failure of either party at any time to require performance o
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 o
or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or N
remedy with respect to any other occurrence or event,nor shall any waiver constitute a continuing
waiver.
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Section 19. Severability. Every provision of this Maintenance Agreement is and shall be
construed to be a separate and independent covenant. Without limiting the generality of the E
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 a
AD 1068—Maintenance Agreement Page 8
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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, r
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notwithstanding such invalidity or unenforceability.
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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 Q
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and shall constitute one agreement. _
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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 a
behalf of said parties and that by doing so,the parties hereto are formally bound to the provisions of =
this Maintenance Agreement.
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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
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binding upon and inure to the benefit of all persons having or acquiring any interest in the Property o
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or any portion thereof, and their respective successive owners and assigns.
Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement IX
to be recorded with the Office of the County Recorder of San Bernardino County,California,within ,f;
thirty(30) days following the execution of this Maintenance Agreement. v
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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
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the date set forth in the introductory paragraph hereof.
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CITY:
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City of San Bernardino =
By: _
CHARLES E. MCNEELY, City Manager
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ATTEST:
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RACHEL CLARK, City Clerk
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' Approved as to Form:
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JAMES F. PENMAN, City Attorney Q
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PROPERTY OWNER:
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HW SOUTHGATE, L.P.,
a California limited partnership
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By: DTC Phase II, LLC, Q
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a Delaware limited liability company =
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its general partner
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STATE OF TEXAS §
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COUNTY OF DALLAS §
This instrument was acknowledged before me on 2011, by =
of DTC Phase II, LLC, a °
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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. _
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Consent 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, E
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 Q
Maintenance Agreement.
WELLS FARGO BANK,NATIONAL ASSOCIATION, as c
agent for and on behalf of Wells Fargo Bank,National
Association and any and all other financial institutions =
identified in an Intercreditor Agreement executed by Agent .a
and such Lenders a
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By' °a
J. Kent Howard
Senior Vice President Ir
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WELLS FARGO BANK,
NATIONAL ASSOCIATION
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Senior Vice President >
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STATE OF TEXAS §
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COUNTY OF DALLAS §
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This instrument was ACKNOWLEDGED before me on ,2011,by J. Kent
Howard,the Senior Vice President of Wells Fargo Bank,National Association,a national banking o
association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, o
National Association and any and all other financial institutions(collectively,"Lenders")identified
in an Intercreditor Agreement executed by Agent and such Lenders.
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Notary Public, State of Texas o
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EXHIBIT "A"
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PROPERTY DESCRIPTION E
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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.
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EXHIBIT `B"
PROPERTY OWNER MAINTENANCE AREAS =
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The areas to be maintained by the property owner will be landscaping and all appurtenances along Q
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 2
Exhibit`B-1".
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EXHIBIT "C"
. PROPERTY OWNER MAINTENANCE STANDARDS r
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The Property Owner hereby agrees to maintain the landscaping located within the Property Owner E
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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 Q
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 n
Property Owner in the performance of its obligations under this Maintenance Agreement within the c
Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. a
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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
assessment districts on file in the office of the City Engineer. o
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All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as
necessary as shall be reasonably determined to ensure the visual quality of the landscaping
treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied,
as applicable,pursuant to an irrigation schedule and at times of the day and for such durations to be LO
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determined based upon the season of the year.
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