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RESOLUTION NO. 2017-223
RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE
EXECUTION OF DEFAULT LANDSCAPE MAINTENANCE AGREEMENTS AND
AMENDMENTS WITH WESTGATE AC, L.P., WESTGATE NO. 1, L.P., AND THE
INLAND VALLEY DEVELOPMENT AGENCY RELATIVE TO ASSESSMENT
DISTRICT NO. 1022, ZONE 2
BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor and City Council of the City of San Bernardino hereby
authorizes and directs the City Manager to execute the Default Landscape Maintenance
Agreements and Amendments attached hereto as Exhibits "1" through "Y', inclusive, and
incorporated herein by reference as though set forth at length.
SECTION 2. The above authorization is rescinded if the parties to the Agreements do
not execute the agreements and return the fully executed agreements to the Office of the City
Clerk within sixty (60) days of the passage of this resolution.
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RESOLUTION OF THE MAYOR AND CITY COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, AUTHORIZING AND DIRECTING THE
EXECUTION OF DEFAULT LANDSCAPE MAINTENANCE AGREEMENTS AND
AMENDMENTS WITH WESTGATE AC, L.P., WESTGATE NO. 1, L.P., AND THE
INLAND VALLEY DEVELOPMENT AGENCY RELATIVE TO ASSESSMENT
DISTRICT NO. 1022, ZONE 2
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and City Council of the City of San Bernardino at a Joint Regular Meeting thereof, held on the
15th day of November 2017, by the following vote, to wit:
Couneil Members:
MARQUEZ
BARRIOS
VALDIVIA
SHORETT
NICKEL
RICHARD
AYES NAYS
x
X
X
XM
X
X
ABSTAIN ABSENT
MULVIHILL X(S)
Georgewi anna, CM ity Clerk
The foregoing Resolution is hereby approved this 15'x' day of November 2017.
Approved as to form:
Gary D. Saenz, City Attorney
Byi
' ,puri.•- 7
R. Carey Dav' , Mayor
City of San Vemardino
RECORDING REQUESTED BY:
City of San Bernardino
290 North "D" Street
San Bernardino, CA 92401
When Recorded, Mail To:
City of San Bernardino
Real Property Section
201 North "E" Street
San Bernardino, CA 92401
AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
(San Bernardino International Trade Center Specific Plan and
Adjacent Areas to the former Norton Air Force Base)
THIS AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE
MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement') is dated as of
November 15 , 2017, and evidences the agreement by and between (i)
WESTGATE AC, L.P., a California limited partnership (the "Property Owner"), as the owner of
certain property within the boundaries of the City of San Bernardino Assessment District No. 1022
(referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is
the subject of this Maintenance Agreement (the "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 California (the
THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY
HEREBY AGREE AS FOLLOWS:
Section 1. Obligations of Property Owner: (a) This Maintenance Agreement is entered
into between the parties pursuant to the provisions of City of San Bernardino Municipal Code
Chapter 12.90, and other applicable law, including without limitation, Streets and Highways Code
Section 22500, et seg., for the purpose of providing for the private maintenance and operation of
certain landscaping within agreed upon areas of the AD No. 1022. Exhibit "B" as attached hereto
and incorporated herein illustrates the entire boundary of the AD No. 1022 and includes therein a
notation of the areas thereof that are the subject of this Maintenance Agreement which are intended
to be maintained by the Property Owner (the "Propgrty "PropertyOwner Maintenance Areas"). All other areas
of AD No. 1022 which are not the subject of this Maintenance Agreement and which are not
required to be maintained by the Property Owner as the Property Owner Maintenance Areas shall be
maintained by either the City, in the same manner as the City maintains landscaping within other
landscape and streetlight maintenance assessment districts elsewhere within the City, or other
property owners pursuant to separate agreements.
(b) The Property Owner shall grant to the City a landscape easement in accordance with
Municipal Code Chapter 12.90 for each landscape area within the Property Owner Maintenance
Areas that is owned by the Property Owner. A property owner is eligible to enter into this
Maintenance Agreement only if the property owner has a minimum street frontage of 400 linear feet
or a minimum area of 2.25 acres or, if not, then only if agreed to in the sole and absolute discretion
of the City Engineer (the term "Cies Engineer" as used in this document shall be defined and shall
mean the "City Engineer or his/her designee"). The Property Owner is eligible to enter into this
Maintenance Agreement.
(c) To the extent that the Property Owner complies with the requirements of this
Maintenance Agreement, including the minimum landscape maintenance standards as set forth in
Exhibit "C" attached hereto and incorporated herein, the AD No. 1022 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 but solely with respect to landscape purposes as set forth in Part
II of the formula contained within the Engineer's Report. The City agrees to forebear the collection
of such assessments as to the Part H of said formula for the Property Owner Maintenance Areas
during the period of time that the Property Owner complies with the provisions of this Maintenance
Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to
this Maintenance Agreement and termination of this Maintenance Agreement by the City, the City
shall consider the portions of AD No. 1022 that were deemed to be the Property Owner Maintenance
Areas to be treated the same as any other property within the AD No. 1022 for which the previously
approved annual assessment shall be collected by the City. In such case the full amount of the
annual assessment determined pursuant to Part 1, Part 11 and Part III of the formula contained in the
Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full
amount as determined pursuant to the formula contained in the Engineer's Report to be paid with
respect to the Property of the Property Owner representing the costs incurred by the City for the
default of the Property Owner as to the Property Owner Maintenance Areas. Such assessment
amount 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 including the costs of
the annual maintenance of the landscaping and administration and collection of assessments related
to the AD No. 1022 during the fiscal year in which the default occurs and in each subsequent fiscal
year of the City thereafter.
Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has
formed 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 portions of the
Property situated within the AD No. 1022 and for other street lighting purposes as permitted pursuant
to Municipal Code Chapter 12.90 (the "Street, Lighting District Conipo...nent" ). The AD No. 1022
shall only include within the Property Owner Maintenance Areas the purposes set forth in Section
2(b) below so long as this Maintenance Agreement is in full force and effect and for the further
purposes of the collection of the assessment as may hereafter be ordered by the City under Section 4.
K
The Property Owner will be required to pay on the annual property tax bill all other costs of the AD
No. 1022 which are allocable to the Property Owner Maintenance Area with respect to street lights
and traffic signals, inspection of landscaping, and any other common area landscaping considered to
be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part I and Part III
of the formula contained in the Engineer's Report.
(b) Within the Property Owner Maintenance Areas and so long as this Maintenance
Agreement remains in full force and effect, the Landscape District and the special assessments as
may hereafter be collected by the City each fiscal year may provide for the following improvements:
(i) the maintenance and servicing by the City of any common area planting of
landscaping within the AD No. 1022 which are of benefit to the Property as
approved by the City and installed within the AD No. 1022 as determined
pursuant to Part I of the Engineer's Report and the formation documents and
the Engineer's Report for the AD No. 1022. As used herein, the words
"maintenance and servicing" mean and refer to the furnishing of services and
materials for the ordinary and usual maintenance, operation of the
landscaping installed by the owner of the Property in the Part I common areas
including providing for the growth, health, cultivation, irrigation, trimming,
spraying, fertilizing or treating for disease or injury, the removal of
trimmings, rubbish, debris and other solid waste and the cleaning,
sandblasting and painting of walls and other improvements to remove or
cover graffiti, all as more extensively set forth in Exhibit "C" attached hereto
and incorporated by this reference as if set forth fully herein; and
(ii) incidental costs associated with the maintenance and servicing described in
subparagraph (i), above, including the costs associated with (1) the
preparation of annual engineering reports, (2) the levy of the annual
assessments, and (3) the collection of the assessments as set forth in Part III
of the Engineer's Report and the formation of AD No. 1022.
Section 3. Termination Right by Cita Engineer. (a) In accordance with subsection (b)
herein, the City shall have the right to terminate this Maintenance Agreement in the event the
Property Owner shall have failed to perform the maintenance or the furnishing of services described
in Section 1(c) above and/or Exhibit "C" within the Property Owner Maintenance Areas or any
portion thereof following at least thirty (30) days' prior written notice from the City Engineer to the
Property Owner ordering the Property Owner to perform the maintenance or furnishing of the
services described in such notice as required by this Maintenance Agreement (subject to prudent
seasonal planting practices). Upon the expiration of such 30 -day notice and cure period, in the event
the Property Owner has not cured the default (subject to prudent seasonal planting practices), the
City Engineer 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
5(b) herein). The City Engineer shall also have the right to terminate this Maintenance Agreement in
the event the Property Owner shall have failed to perform the maintenance or furnishing of the
services described in Section 1(c) and/or Exhibit --"C" within the Property Owner Maintenance Areas
or any portion thereof which results in a hazardous safety situation in the professional opinion of the
City Engineer, following at least 48 hours prior written notice to the Property Owner to completely
cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to
have commenced such cure with diligent efforts to cure) upon the expiration of such 48-hour notice
and cure period. Any termination of this Maintenance Agreement may be appealed by the Property
Owner to the Public Works Director, who shall be presented with the facts and circumstances of any
alleged default together with any recommendations for the termination of this Maintenance
Agreement. Upon the termination of this Maintenance Agreement by the City Engineer, the City
shall thereupon no longer deem any portion of AD No. 1022 to be a "default assessment district" as
to the Property and the City shall undertake the regular periodic landscape maintenance, and seek
collection of the annual landscape maintenance amount against the Property in the same manner as
with other properties within the AD No. 1022 and the calculation of the amounts owed annually
pursuant to Part I, Part II and Part III of the formula contained in the Engineer's Report.
(b) Unless waived by the Public Works Director, at his sole discretion, the Property
Owner shall only be permitted to have two (2) defaults determined by the City Engineer pursuant to
this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by th e
Public Works Engineer, upon the occurrence of a third default hereunder, regardless of whether the
prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so
determined by the City Engineer, by the City Engineer sending a notice, within thirty (30) days after
the occurrence of such third default, advising the Property Owner of said termination of this
Maintenance Agreement, without the necessity of having given the Property Owner a notice of
default and cure opportunity with respect to such third default. If a waiver is granted, then the City
Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default,
unless waived by the Public Works Director, by sending notice, within thirty (30) days after the
occurrence of such default, advising the Property Owner of said termination of this Maintenance
Agreement without the necessity of having given the Property Owner a notice of default and cure
opportunity with respect to such subsequent default.
(c) The Property is part of the property covered by the Parcel Map No. 19677 and
Certificate of Compliance for Lot Line Adjustment No. LLA 2016-04 described in the attached
Exhibit "A" (the "Parcel Map Propett�a'). The Parcel Map Property is currently composed of two
separate parcels (each, a "Parcel"). If a Parcel is divided into one or more small subdivisions (each a
"Lot") by Property Owner or any successor in interest, the obligations of this Agreement shall be
apportioned among the owners (each an "Owner") of each Lot in proportion to the area of each Lot.
In the event of a default by an Owner of one Lot or Parcel, including any obligations pursuant to
Section 1(b) above, the rights and remedies available to City including those set forth in this
Agreement, may only be enforced against that owner and its interest in the Lot or Parcel upon which
the default occurred.
Section 4. Street Lighting District Component. Whether or not this Maintenance
Agreement remains in effect through the full term hereof, the Property shall be subject to the portion
of the AD No. 1022 considered to be the Street Lighting District Component for which the special
assessments as may hereafter be collected by the City in each fiscal year may provide for the
following services:
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(i) furnishing of electric current to any public lighting facilities by the City within the
AD No. 1022 areas approved by the City and installed within the AD No. 1022 and
the maintenance, repair and replacement of all electrical components, light standards,
switches, light bulbs, signal lights, wiring and other appurtenant facilities;
(ii) incidental costs associated with subparagraph (i), above, including the cost of (1) the
preparation of annual engineering reports, (2) the levy ofthe annual assessments, and
(3) the collection of the assessments.
Section 5. Notices and Communications Between the Parties. (a) Any and all notices,
demands or communications submitted by either party to another parry pursuant to or as required by
this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate
personal delivery, or by registered or certified United States mail, postage prepaid, return receipt
requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail
postage prepaid or by personal delivery and in each case, addressed to the principal office of the
parties, as applicable, as designated below.
To City: City of San Bernardino
City Engineer
290 N "D" Street
San Bernardino, California 92401
To Property Westgate AC, L.P.
Owner- 901 Via Piemonte, Suite 175
Ontario, CA 91764
Attn: John M. Magness
Phone: (909) 382-0073
With a copy to: Westgate AC, L.P.
1717 McKinney Avenue, Suite 1900
Dallas, Texas 75202
Attn: Sarah Madewell
Phone: (214) 647-4905
(b) Such written notices, demands and communications may be sent in the same manner
to such other addresses as either parry may from time to time designate as provided in this Section.
Any such notice, demand or communication shall be deemed to be received by the addressee,
regardless of whether or when any return receipt is received by the sender on the date set forth on
such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the
date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is
placed in the United States Mail or personal delivery as heretofore provided.
(c) Either party may change its address for notice by giving written notice of such change
to the other party not less than ten (10) days prior to the effective date of such address change. 1f a
parry has not provided an address for notice, any other party may deliver notice to such party at the
address shown as the address for the owner of the property in question in the county tax records.
Section 6. 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 either Section 2 or Section 4, at the same
time and in the same manner as County of San Bernardino general property taxes are collected
against real property and all the laws providing for the collection and enforcement of County of San
Bernardino property taxes shall apply to the collection and enforcement of any such assessments.
Nothing shall prevent the City from accelerating the foreclosure of any assessment lien and
independently pursuing judicial remedies for the enforcement of any assessment lien in the manner
as may be available to the City pursuant to the Municipal Code or other applicable California law.
Section 7. Term of Aureement. This Maintenance Agreement shall remain in full force
and effect for a term of thirty (3 0) years and shall terminate, unless terminated sooner as permitted in
this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory
paragraph hereof.
Section 8. First Year's Assessment. The 2016/2017 assessment to the Property Owner
by the City pursuant to the Landscape District shall be limited to the amounts set forth on Table A to
the Engineering Report.
Section 9. Cit v Confirmation. On request from time -to -time of the Property Owner, the
City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence
of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then
known to the City Engineer.
Section 10. Non-discrimination. In performing this Maintenance Agreement, Property
Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of
persons because of their race, religion, color, national origin, ancestry, age, physical handicap,
medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to
Section 12940 of the Government Code. Violation of this provision may result in the imposition of
penalties referred to in Labor Code, Section 1735.
Section 11. Entire Agreement, Amendment and Termination. This Maintenance
Agreement constitutes the entire agreement between the parties with respect to any matter referenced
herein and supersedes any and all other prior writings and oral negotiations. The terms of this
Maintenance Agreement shall prevail over any inconsistent provision in any other contract document
appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance
Agreement may be amended or terminated only by written agreement, signed by the parties in
interest at the time of such amendment or termination, except as also provided in Section 3,
regarding termination.
Section 12. Attornevs' Fees. In the event that litigation is brought by any party in
connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from
2
the opposing parry all costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any
of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney
and members of his office in connection with that action, shall be considered as "attorneys' fees" for
the purposes of this Maintenance Agreement.
Section 13. Governinu Law, This Maintenance Agreement shall be governed by and
construed under the laws of the State of California without giving effect to that body of laws
pertaining to conflict of laws. In the event of any legal action to enforce or interpret this
Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a courtof
competent jurisdiction located in San Bemardino County, California.
Section 14. Indemnification and Hold Harmless. Property Owner shall protect, defend,
indemnify and hold harmless City and its elected and appointed officials, officers, and employees
from any and all claims, liabilities, expenses, including attorneys' fees, damage to property or
injuries to or death of any person or persons or damages of any nature including, but not limited to,
all civil claims or workers' compensation claims, arising out of or in any way connected with the
acts, errors or omissions of Property Owner, its employees, agents or subcontractors in the
performance of this Maintenance Agreement.
Section 15. No Third Part v Beneficia Rig -lits. This Maintenance Agreement is entered
into for the sole benefit of City and Property Owner and no other parties are intended to be direct or
incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in,
under or to this Maintenance Agreement.
Section 16. Heading s. Paragraphs and subparagraph headings contained in this
Maintenance Agreement are included solely for convenience and are not intended to modify, explain
or to be a full or accurate description of the content thereof and shall not in any way affect the
meaning or interpretation of this Maintenance Agreement.
Section 17. Construction. The parties have participated jointly in the negotiation and
drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or
interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall
be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall
be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of
any of the provisions of this Maintenance Agreement.
Section 18. Waiver. The delay or failure of either party at any time to require performance
or compliance by the other of any of its obligations or agreements shall in no way be deemed a
waiver of those rights to require such performance or compliance. No waiver of any provision of
this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized
representative of the party against whom enforcement of a waiver is sought. The waiver of any right
or remedy with respect to any occurrence or event shall not be deemed a waiver of any right or
remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing
waiver.
Section 19. 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
foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable
for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be
enforced to the extent permitted by law and the parties shall negotiate in good faith for such
amendments to this Maintenance Agreement as may be necessary to achieve its intent,
notwithstanding such invalidity or unenforceability.
Section _20. Countel-I arts. This Maintenance Agreement maybe executed in one or more
counterparts, each of which shall be deemed an original. All counterparts shall be construed together
and shall constitute one agreement.
Section 21. Cor ,orate Authority. The persons executing this Maintenance Agreement on
behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance
Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the
provisions of this Maintenance Agreement.
Section 22. Covenant Running with the Land. The provisions of this Maintenance
Agreement shall run with the Property and any portion thereof or interest therein, and shall be
binding upon and inure to the benefit of all persons having or acquiring any interest in the Property
or any portion thereof, and their respective successive owners and assigns.
Section 23. Recording. The City Clerk shall cause a copy of this Maintenance Agreement
to be recorded with the Office of the County Recorder of San Bernardino County, California, within
ten days following the execution of this Maintenance Agreement.
Section 24. Consent. JPMorgan Chase Bank, N.A., as administrative agent on behalf of
itself and certain other lenders (collectively, the "Lenders"), will consent to this Maintenance
Agreement and the easements and rights created hereunder and will subordinate all liens and security
interests against the Property securing any and all indebtedness owed to Lenders, to this Maintenance
Agreement and to all easements and rights created hereunder as evidenced by the Consent and
Subordination attached hereto.
[Signatures Follow On Next Page]
93
AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
THIS MAINTENANCE AGREEMENT is executed by the authorized officers of the
Property Owner and the City of San Bernardino and this Maintenance Agreement is effective as of
the date set forth in the introductory paragraph hereof.
City of San Bernardino Property Owner:
'I
By: MLj SEE ATTACHED SIGNATURE PAGE
Andrea M. Miller, City Manager
SEAL
ATTEST:.
Georgeann Wanna, CMC, Clerk
Approved as to Form:
Gary D. Saenz, City Attorney
By.� c/
0
[add CA acknowledgment page for the City]
10
AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
Signature Page
Property Owner:
WESTGATE AC, L.P.,
a California limited partnership
By: DTC Phase Il, LLC,
a Delaware limited liability company,
its general p^
By:
Nage:
Title: `
State of C41 i fns n i A )
) ss.
County of Ser h 2Y114rj 10 0 )
On R iolgwLl1 11 before me, h. VIP, L� Vim bpi l personally appeared _
M V1S personally kown to me (or proved to me on the basis of satisfactory
evidence) to be person(s) whose name(s) is/am- subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/hw/their authorized capacity(ics), and
that by his/her/th&u- signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
CHRISTINE LYNN BUCKLE L�
Comndit IN # 2110124 ' {S
Signature Nowt' Public - CaIHomis Z
Sm Bernadino County
Al COMM. E : Ires4.2018
N1s
11
Consent of Lender
CONSENT AND SUBORDINATION
The undersigned, JPMORGAN CHASE BANK, N.A., a national banking association, in its
capacity as Administrative Agent, for the ratable benefit of itself, the other Lenders (as defined in the
Loan Agreement) and each of JPMorgan Chase Bank, N.A.'s affiliates that is a party to any Swap
Agreements (together with each and every successor agent for the Lenders and such affiliates of
JPMorgan Chase Bank, N.A.) ("Lender"), the beneficiary under that certain Construction Deed of
Trust and Security Agreement (with Assignment of Rents) dated October 4, 2016 (as modified, the
"Deed of Trust") executed by WESTGATE AC, L.P., a California limited partnership, as owner and
as borrower (collectively, "Trustor'), to Fidelity National Title Insurance Company, as original
Trustee, recorded on October 4, 2016, as Instrument Number 2016-0412170, Official Records of the
County of San Bernardino, State of California, hereby consents to the terms, provisions and
conditions of that certain AGREEMENT OF PROPERTY OWNER FOR PROVISION OF
LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE
MAINTENANCE ASSESSMENT DISTRICT by WESTGATE AC, L.P., a California limited
partnership (the "LMD A: eement"), and, subject to the terns and provisions of this Consent and
Subordination, subordinates the lien and security interests of the Deed of Trust to the
LMD Agreement, such that from and after the effective date of this Consent and Subordination, the
terms, provisions and conditions of the LMD Agreement are and shall be prior and superior to the
liens, security interest, terms and provisions of the Deed of Trust; provided, however, this Consent
and Subordination: (i) shall not be construed or operate as a consent and subordination to any
amendment to or modification of the LMD Agreement, or a release of the lien and security interests
of the Deed of Trust, but shall instead confirm that the lien and security interests of the Deed of Trust
shall hereafter be upon and against all of the property subject to the LMD Agreement; and (ii) shall
not modify or amend the terms and provisions of the Deed of Trust.
LENDER:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and as a Lender
By./'' r --
F r, _ e
Title: A-, t 4i *-N,c_
12
State of Texas }
) ss.
County of Dallas )
On Au st 151 2017 before me, Lktat hr L- L- {hfi R personally appeared
19�4 personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signatffu11re
It(- U ,! +-t
13
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Yn4 MICHAEL L. HAIR
10776591
k NOTARY PUBLIC, STATE OF TEXAS
MY COMMISSION EXPIRES
JULY 24, 2019
,ea�riri•�rr.�s�1✓r�..cr�rirrr
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
PARCEL A:
PARCEL 1 OF PARCEL MAP NO. 19677, IN THE CITY OF SAN BERNARDINO, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 246, PAGES 88
THROUGH 92, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
PARCEL B:
AN EASEMENT FOR COMMON DRIVEWAY AS CONTAINED IN THAT CERTAIN
COMMON DRIVEWAY EASEMENT AGREEMENT RECORDED JUNE 24, 2014 AS
INSTRUMENT NO. 2004-0450038 OF OFFICIAL RECORDS.
PARCEL C:
A NON -BUILDABLE EASEMENT AREA AS CONTAINED IN THAT CERTAIN EASEMENT
AGREEMENT RECORDED JUNE 29, 2016, AS INSTRUMENT NO. 2016-0256587 OF
OFFICIAL RECORDS.
EXCEPTING ALL OF THE OIL, GAS AND OTHER MINERALS OF EVERY KIND AND
CHARACTER GRANTED IN THAT CERTAIN MINERAL DEED RECORDED SEPTEMBER
29, 2016 AS INSTRUMENT NO. 2016-0404402 OF OFFICIAL RECORDS.
APN: 0136-341-56 and a portion of 0136-341-64
APN: 0136-341-56-0-000
14
EXHIBIT "B"
BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY
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EXHIBIT "C"
PROPERTY OWNER MAINTENANCE STANDARDS
The Property Owner hereby agrees to maintain the landscaping improvements located within the
Property Owner Maintenance Areas identified more precisely in the drawing included in Exhibit `B"
which areas are adjacent to the Property of the Property Owner as required by this Maintenance
Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its
obligations under this Maintenance Agreement and, as between the City and the Property Owner,
shall be responsible for any injury, damage or loss to any person or other properties caused by any
activities of the Property Owner in the performance of its obligations under this Maintenance
Agreement within the Property Owner Maintenance Areas so long as this Maintenance Agreement is
in effect.
The Property Owner shall maintain the landscaping improvements as required by this Maintenance
Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee,
consistent with the then current standards for landscape maintenance within City assessment districts
on file in the office of the City Engineer.
All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as
necessary as shall be reasonably determined to ensure the visual quality of the landscaping
treatments. The Property Owner shall provide for adequate amounts of irrigation waterto be applied
pursuant to an irrigation schedule and at times of the day and for such durations to be determined
based upon the season of the year.
111
111
16
RECORDING REQUESTED BY
City of San Bernardino
290 North "D" Street
San Bernardino, CA 92401
When Recorded, Mail To:
City of San Bernardino
Real Property Section
201 North "E" Street
San Bernardino, CA 924101
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
(San Bernardino International Trade Center Specific Plan and
Adjacent Areas to the former Norton Air Force Base)
THIS FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER FOR
PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED
LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (this
"First Amendment") is dated as of November 15 , 2017, by and between
WESTGATE NO. 1,L.P., a California limited partnership (the "ProllertN Owner"), as the owner of
certain property within the boundaries of the City of San Bernardino Assessment District No. 1022,
and the CITY OF SAN BERNARDINO, a municipal corporation and charter city of the State of
California (the "City").
BACKGROUND/RECITALS:
a. Property Owner and the City entered into that certain Agreement of Property Owner
for Provision of Landscape Maintenance Services for City Imposed Landscape and Street Lighting
Maintenance Assessment District dated July 24, 2006, recorded on August 4, 2006 under Document
No. 2006-0533847 in the Official Records of San Bernardino County, California (the "LMD
Agreement").
b. Property Owner and the City desire to amend the LMD Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained in this First
Amendment and other good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, Property Owner and the City agree
as follows:
1
Section 1. Propert\, to be Removed. The property described in Exhibit "A'' attached
hereto and incorporated herein shall hereby be removed from the LMD Agreement (such property is
herein called the "Removed Property") and from and after the date of this First Amendment, the
definition of Property, as defined in the LMD Agreement shall no longer include the Removed
Property.
Section 2. Remaining Property. The property described in Exhibit `B" attached hereto
and incorporated herein is the sole remaining property subject to the LMD Agreement and from and
after the date of this First Amendment the term Property as used in the LMD Agreement shall mean
the property described on Exhibit `B" (and the legal description on Exhibit `B" attached hereto shall
replace the description on Exhibit "A" to the LMD Agreement.
Section 3. Entire ALlreement. Amendment and Termination. This First Amendment
constitutes the entire agreement between the parties with respect to any matter referenced herein and
supersedes any and all other prior writings and oral negotiations. The terms of this First Amendment
shall prevail over any inconsistent provision in any other contract document appurtenant hereto,
including exhibits to this First Amendment. This First Amendment may be amended or terminated
only by written agreement, signed by the parties in interest at the time of such amendment or
termination, except as also provided in Section 3 of the LMD Agreement, regarding termination.
Section 4. Governing, _Law. This First Amendment shall be governed by and construed
under the laws of the State of California without giving effect to that body of laws pertaining to
conflict of laws. In the event of any legal action to enforce or interpret this First Amendment, the
parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction
located in San Bernardino County, California.
Section.5. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original. All counterparts shall be construed together
and shall constitute one agreement.
Section 6. Recordin_ . The City Clerk shall cause a copy of this First Amendment to be
recorded with the Office of the County Recorder of San Bernardino County, California, within ten
days following the execution of this First Amendment.
[Signatures Follow On Next Page]
2
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
THIS FIRST AMENDMENT is executed by the authorized officers of the Property Owner
and the City of San Bernardino and this First Amendment is effective as of the date set forth in the
introductory paragraph hereof.
CITY:
CITY OF SAN BERNARDINO
By:.
Andrea M. Miller, City Manager
SEAL
ATTEST -
Georgeann 40iia, CMC, C' f erk
Approved as to Form:
Gary D. Saenz, City Attorney
Property Owner:
SEE ATTACHED SIGNATURE PAGE
[add CA acknowledgment page for the City]
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
Signature Page
PROPERTY OWNER:
WESTGATE NO. 1, L.P., a California limited partnership
By: LIT HWl GP, LLC, a Delaware limited liability company, its general partner
By: LIT HW 1, LP, a Delaware limited partnership, its sole member
By: LIT -FT GP, L.L.C., a Delaware limited liability company, its general partner
By: LIT Industrial Limited Partnership, a Delaware limited partnership,
its sole member
By: LIT Holdings GP, LLC, a Delaware limited liability company,
its sole general partner
By: Lion Industrial Properties, L.P., a Delaware limited
partnership, its sole member
By: LIT GP Sub, LLC, a Delaware limited liability
Company, its general partner
By: Lion Industrial Trust, a Maryland real
estate investment trust,
its sole member and manager
By:
Name: cILA-
Title:r— Post P Hui it
^y
5
State of
ss.
County of i )
On r-11-?
Z61,� before me, �� Cr . n `�� uPn: rl personally appeared _
! N -personally kown to me (or proved me on the basis of satisfactory
evidenca the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Stare
1!&Y
PAfiRMIA ANN BAUMGART
c Notary Public, State of Texas
F Comm. Expires 06.20.2019
Notary 10 807819-9
0
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
TO BE REMOVED FROM LMD AGREEMENT
THAT PORTION OF PARCEL A OF CERTIFICATE OF COMPLIANCE FOR LOT MERGER, IN
THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, RECORDED MARCH 15, 2006 AS DOCUMENT NO. 2006-0176704 OF
OFFICIAL RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF PARCEL 3 OF LOT LINE
ADJUSTMENT NO. 04-001, OF SAID CITY, COUNTY AND STATE, RECORDED MAY 6,
2004 AS INSTRUMENT NO.2004-0316870 OF OFFICIAL RECORDS, THENCE NORTH 00° 21-
40 "
1'40" WEST 120.59 FEET; THENCE NORTH 22'25'55" EAST 169.64 FEET; THENCE NORTH
890 38'20" EAST 21.25 FEET; THENCE SOUTH 23° 10'51" EAST 160.81 FEET; THENCE
SOUTH 000 21'40" EAST 128.76 FEET TO THE NORTHERLY LINE OF SAID MILL STREET;
THENCE ALONG SAID NORTHERLY LINE SOUTH 890 38'20" WEST 149.34 FEET TO THE
POINT OF BEGINNING.
7
EXHIBIT B"
LEGAL DESCRIPTION OF SOLE PROPERTY
REMAINING UNDER LMD AGREEMENT
LOT A OF CERTIFICATE OF COMPLIANCE FOR LOT LINE ADJUSTMENT, IN THE CITY
OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA,
RECORDED AUGUST 29, 2016 AS INSTRUMENT NO. 2016-349245 OF OFFICIAL RECORDS
OF SAID COUNTY.
PARCEL A OF CERTIFICATE OF COMPLIANCE FOR LOT MERGER, IN THE CITY OF SAN
BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED
MARCH 15, 2006 AS DOCUMENT NO. 2006-0176704 OF OFFICIAL RECORDS OF SAID
COUNTY.
RECORDING REQUESTED BY:
City of San Bernardino
290 North "D" Street
San Bernardino, CA 92418
When Recorded, Mail To:
City of San Bernardino
Real Property Section
201 North 'U" Street
San Bernardino, CA 92401
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
(San Bernardino International Trade Center Specific Plan and
Adjacent Areas to the former Norton Air Force Base)
THIS FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER FOR
PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED
LANDSCAPE AND STREET LIGHTING MAINTENANCE ASSESSMENT DISTRICT (this
"First Amendment") is dated as of November 15 , 2017, by and between the
INLAND VALLEY DEVELOPMENT AGENCY, a joint exercise of powers authority (the "Prope
Owner'), as the owner of certain property within the boundaries of the City of San Bernardino
Assessment District No. 1022, and the CITY OF SAN BERNARDINO, a municipal corporation and
charter city of the State of California (the
BACKGROUND/RECITALS:
a. Property Owner and the City entered into that certain Agreement of Property Owner
for Provision of Landscape Maintenance Services for City Imposed Landscape and Street Lighting
Maintenance Assessment District dated July 24, 2006, recorded on August 4, 2006 under Document
No. 2006-0533845 in the Official Records of San Bernardino County, California (the "LMD
Agreement").
b. Owner and the City desire to amend the LMD Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained in this First
Amendment and other good and valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, Property Owner and the City
agree as follows:
Section 1. Property to be Removed. The property described in Exhibit "A" attached
hereto and incorporated herein shall hereby be removed from the LMD Agreement.
Section 2. Entire ALreement. Amendment and Termination. This First Amendment
--- .... ... ..�...._....._....
constitutes the entire agreement between the parties with respect to any matter referenced herein and
supersedes any and all other prior writings and oral negotiations. The terms of this First Amendment
shall prevail over any inconsistent provision in any other contract document appurtenant hereto,
including exhibits to this First Amendment. This First Amendment may be amended or terminated
only by written agreement, signed by the parties in interest at the time of such amendment or
termination, except as also provided in Section 3 of the LMD Agreement, regarding termination.
Section 3. GoverninL, Law. This First Amendment shall be governed by and construed
under the laws of the State of California without giving effect to that body of laws pertaining to
conflict of laws. In the event of any legal action to enforce or interpret this First Amendment, the
parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction
located in San Bernardino County, California.
Section 4. Counterparts. This First Amendment may be executed in one or more
counterparts, each of which shall be deemed an original. All counterparts shall be construed together
and shall constitute one agreement.
Section 5. Recording. The City Clerk shall cause a copy of this First Amendment to be
recorded with the Office of the County Recorder of San Bernardino County, California, within ten
days following the execution of this First Amendment.
[Signatures Follow On Next Page]
2
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
THIS FIRST AMENDMENT is executed by the authorized officers of the Property Owner
and the City of San Bernardino and this First Amendment is effective as of the date set forth in the
introductory paragraph hereof.
CITY:
CITY OF SAN BERNARDINO
WrlBy:
Andrea M. Miller, City Manager
SEAL
ATTEST:
Georgeann H uia, CMC, Cit Clerk
Approved as to Form:
Gary D. Saenz, City Attorney
By:
Property Owner:
SEE ATTACHED SIGNATURE PAGE
[add CA acknowledgment page for the City]
FIRST AMENDMENT TO AGREEMENT OF PROPERTY OWNER
FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES
FOR CITY IMPOSED LANDSCAPE AND STREET LIGHTING
MAINTENANCE ASSESSMENT DISTRICT
Signature Page
PROPERTY OWNER:
INLAND VALLEY DEVELOPMENT AGENCY,
a joint powers authority established under the laws
of the State of California
By: -
Name:
Title: ec-
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
State of California
County of . !�At)
On jr iR�t 1� AO/ before me, Si�/,!}j20•t�)D�1�A) . A4rhty &6 Lim ,
Date `� Here Insert Name and iltle of the Officer
personally appeared %I11�1��L /JA—xyA 1
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person($) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/shwlhey executed the same in
his/her./their authorized capacity(es), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
SHARON 0. LEON
C=M111100 a 212 721
Sm offarmea cou*
• 12.2014
Place Notary Seal Above
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
SignatureV'.14 ,J
Signature of Notary Public
OPTIONAL' --
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document
Description of Attached Document
Title or Type of Document: Document Date:
Number of Pages: Signer(s) Other Than Named Above:
Capacityres) Claimed by Signer(s)
Signer's Name:
❑ Corporate Officer — Title(s): _
❑ Partner — D Limited ❑ General
❑ Individual ❑ Attorney In Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
Signer's Name:
❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General
D Individual ❑ Attorney in Fact
❑ Trustee ❑ Guardian or Conservator
❑ Other:
Signer Is Representing:
02014 National Notary Association • www.NationaiNotary.org • 1 -800 -US NOTARY (1-800-876-6827) Item #5907
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
TO BE REMOVED FROM LMD AGREEMENT
PARCEL 3 OF LOT LINE ADJUSTMENT NO. 04-001, CITY OF SAN BERNARDINO,
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED MAY 6, 2004 AS
INSTRUMENT NO. 2004-0316870 OF OFFICIAL RECORDS OF SAID COUNTY.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF SAN BERNARDINO,
A MUNICIPAL CORPORATION, BY GRANT DEED RECORDED MAY 25, 2004 AS
INSTRUMENT NO. 2004-0366191 OF OFFICIAL RECORDS OF SAID COUNTY.
0