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HomeMy WebLinkAbout27-Development Services ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Resolution authorizing the execution of various Default Agreements relative to proposed Assessment District No. 1022 (SBIAN Alliance-California area Landscape and Lighting Maintenance Assessment District). MCC Date: 7-24-06 Dept: Development Services Date: July 18, 2006 File No. 14.40-134 Synopsis of Previous Council Action: 04/07/1997 - Authorization to proceed with the formation of a Landscape and Lighting Maintenance Assessment District in the San Bernardino International Airport area (former Norton Airforce Base) was given. 04/03/2006 -Resolution ofIntention No. 2006-91 was adopted. 05/15/2006 - Public Meeting was held and item carried over to the Public Hearing on 06/05/2006. 06/05/2006 - Public Hearing and Resolution approving AD 1022 was continued to 06/19/2006. 06/19/2006 - Public Hearing was Resolution approving AD 1022 continued to 07/10/2006. 07/10/2006 - Public Hearing was Resolution approving AD 1022 continued to 07/24/2006. Recommended Motion: Adopt Resolution VmAW (). 'R #44/ Valerie C. Ross Contact person: LASZLO "Les" FOGASSY Phone: 5026 Supporting data attached: Staff Report, Map, Reso. Ward: FUNDING REQUIREMENTS: Amount: None I Source: (Acct. No.) NIA (Acct. Description) NIA Finance: Council Notes: J?iSn. ~VJ~ CJ.-,5Q Agenda Item No. 7/ d..'1/ 014 d.. 7' e e e CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolution authorizing the execution of various Default Agreements relative to proposed Assessment District No., 1022 (SBlAN Alliance-California area Landscape and Lighting Maintenance Assessment District). BACKGROUND: On July 17, 1996, the Inland Valley Development Agency (IVDA) Board requested the City, through the office of the Director of Public Works, to initiate proceedings for the establishment of a Landscape and Lighting Maintenance Assessment District within a major portion of the former Norton Air Force Base property, now known as San Bernardino International Airport (SBlA) and Alliance-California. On April 7, 1997, authorization was given for the formation of the proposed assessment district. Due to the dynamic changes occurring at this site over the years, no master plan had been formed regarding the assessment district, what was to be maintained and what the district boundaries should be until recently. The IVDA had hired an Assessment Engineering firm (David Evans and Associates) to complete the Engineer's Report and mapping that was required to bring this project to completion. The formation of the Assessment District is now ready for completion and is being considered today as a separate item. The Engineer's Report, a copy of which is on file in the office of the City Clerk, makes provisions for property owners to maintain areas within the District that are adjacent to their property if established criteria is met. Specifically, the property must be at least 2.25 acres in size, or have a frontage of 400 feet or more. Multiple parcels under one ownership may be combined to meet the criteria. Property owners desiring to maintain their adjacent area must execute a Default Agreement that sets forth the specific responsibilities of the property owners in carrying out the maintenance. Since the District would not be carrying out the maintenance of these areas, the City would forebear the annual collection for these costs while the Default Agreement is in effect. In the event that the property owners default on their maintenance, the City will advise them in writing of the specific areas of deficiency. After two notices of default, the City may terminate the Default Agreement and, through the Assessment District, may take over the maintenance and assess the respective property owners for the maintenance costs. Property owners will still be responsible for their share of maintenance costs of the common areas, which includes median landscaping, street lighting maintenance and energy costs, and Timber Creek Channel, all within the district boundaries. The formation process includes the submission of assessment ballots by the property owners. The ballots are weighted by the total proposed assessment amount, without consideration of the execution of a Default Agreement. e e e Staff in the City Attorney's office has been working with attorneys representing the various property owners wanting to execute a Default Agreement to produce an agreement that was acceptable to all parties involved. Since these property owners did not want to submit an Assessment Ballot in favor of the formation of the Assessment District without approval of the Default Agreement, the public hearing for the formation of the District has been continued several times. The following property owners have elected to execute a Default Agreement: Stater Bros., Matich Properties; Inland Valley Development Agency, Kohl's, and Hillwood and their various entities. A resolution approving all ofthe Default Agreements has been prepared and is attached for your action. After approval of this resolution, the resolution forming the Assessment District may be considered (separate agenda item following this item). After any other public comments on that resolution, the public hearing may be closed, the Assessment Ballots tallied, and (depending on the ballot counts) the resolution forming the Assessment District may be approved. FINANCIAL IMPACT: None. The costs for maintenance of certain areas within the Assessment District will be paid for by the property owners carrying out the maintenance and will not be included in the annual assessment roll. RECOMMENDATION: Adopt Resolution HighLQnd Ave. Bo.se Line St. d ~ ~ ~ ~ 9th St c o c ~ > 5th St. MiLl St. . No Sco.le :> > <( Oro.ng Show Cl1 o c U _a I ~ Q. Q. . ;", 0 LOCA TlON OF PROPOSED ASSESSMENT DISTRICT NO. 1022 VICINITY MAP CITY OF SAN BERNARDINO VELOPMENT SERVICES DEPARTMENT REAL PROPERTY SECTION ~ indicates un-incorporated areas ~ within City's Sphere of Influence Proposed Landscape and Lighting Maintenance Assessment District No. 1022 - San Bernardino International Airport/Alliance-California area. Created by: :.nhl:f/'f Date: ....,/ !r/ tl6 I ! I . ~ I I I ~gj. <( 0 ~ 0:: T""" ~ CJ 0 ffi <( z ~ - r- . 00 ~ I- ~ ~ Zr- 8 UJ <5 WO~ ~I-~ U)Z~ U) W ~ W:2; ~ U)~ 5 U)ill !i! <(UJ. UJ - <{ , . j ~I ~~. . i ~ 5 . H ~ 1 .. ~j~ ~, . ~hj~l! II~ 0 ".Ii!!.", II! 2 ]'~i.H ! 'I .h. H~, I~'I'I ,~:! ~ ~~, .1 I' ! ="..: ~ ~ .~ "i ~ i!i~ ~~o j ~l'l ! ~ ~IJIi ~ i. ~ 'E G. ~ fel~~ ~ ~ j s ~~ H h. j J ~i ! <C~ ~15 'I! I~Z: -'u.' dUo !":: c: u'" u:~ f~ i ~~ ~~ ~~ 1] D. .. ,." 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That the Mayor of the City of San Bernardino is hereby authorized and 8 directed to execute on behalf of said City, the "Agreement of Property Owners for Provision of 9 Landscape Maintenance Services for City Imposed Landscape and Street Lighting Maintenance 10 11 Assessment District" (also referred to as "Default Assessment Agreements"). which are attached 12 hereto as Exhibits I through 8. and made a part hereof, relative to proposed Assessment District 13 No. 1022. known as the San Bernardino International Airport/Alliance-California Landscaping 14 and Lighting Maintenance Assessment District, as set forth in the Engineer's Report for said 15 Assessment District. on file in the office of the City Clerk. The eight attached Default 16 Assessment Agreements are with the following property owners: 17 18 19 20 21 22 23 24 25 I. 2. 3. 4. 5. 6. 7. 8. HSB Gateway No. I, L.P. (Gateway North) HSB Gateway No.2, L.P. (Medline) Westgate No. I. L.P. (Pep Boys) Tec Parc Land, L.P. (MatteI) Inland Valley Development Agency (IVDA) (DFAS Property I & 2) Kohl's Department Stores, Inc. Stater Bros. Markets Matich Properties. LLC. SECTION 2. In order that the deadlines of the San Bernardino County Tax Assessor are et. only those Agreements properly executed and delivered to and accepted by the City ngineer. or his designee. on or before July 31. 2006, shall be effective for the current fiscal 26 ear. ND.~l 7/~~ j6f2 27 II 28 7/20/06 1 RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF VARIOUS DEFAULT ASSESSMENT AGREEMENTS RELATIVE TO PROPOSED ASSESSMENT DISTRICT NO. 1022 (SAN 2 BERNARDINO INTERNATIONAL AIRPORT/ALLIANCE-CALIFORNIA LANDSCAPE AND LIGHTING ASSESSMENT DISTRICT. 3 4 5 6 Common Council of the City of San Bernardino at a 7 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and meeting thereof held on the day of , 2006, by the following vote, to wit: AYES NAYS ABSTAIN ABSENT 15 JOHNSON 16 MCCAMMACK 17 18 19 20 The foregoing resolution is hereby approved this City Clerk day of ,2006. 21 PATRICKJ. MORRIS City of San Bernardino 2 26 27 28 7/20/06 2 EXHIBIT 1 HSB GATEWAY NO.1, L.P. (GATEWAY NORTH) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office ofthe City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 9241 8 ) 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 (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofHSB GATEWAY NO. I, 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 Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. 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 ~., 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 illustrates the entire boundaries of the AD No. I 022 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 "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this 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" as attached hereto, 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 11 ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination ofthis 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 I, Part II 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 ofthe 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 payor 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the 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 Component"). 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 2 force and effect and for the further purposes ofthe collection of the assessment as may hereafter be ordered by the City under Section 4. 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 oflandscaping, 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 !lnd 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereoffollowing at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is defined 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 3 maintenance or the furnishing of services described in Section I(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 ofthe 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. 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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) il\cidental costs associated with subparagraph (i), above, including the cost of (I) the preparation of annual engineering reports, (2) the levy ofthe annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confinned by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: HSB Gateway No. I, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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 Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) 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. 5 Section 8. First Year's Assessment. The 2006/2007 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. 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 ofthis 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 ofthe Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. Entire Agreement. Amendment and Tennination. 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 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. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 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 attorney 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 6 or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 15. No Third Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate Authoritv. 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. 7 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 ofthis 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. [Signatures Follow On Next Page] 8 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: By: HSB GATEWAY NO. I, L.P., a California limited partnership Patrick J. Morris, Mayor SEAL ATTEST: By: DTC Phase II, LLC, a Delaware limited liability company, its general partner By: Rachel Clark, City Clerk John M. Magness Senior Vice-President Approved as to Form: 9 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Parcell of Lot Line Adjustment No. 05-05 Recorded November 16, 2005 as Instrument No. 2005-0861950 of Official Records, described as follows: Lots 2 and 3 of Block 46, of the Rancho San Bemardino all file in Book 7 of Maps, Page 2 thereof, Records of San Bernardino County, California. 10 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 11 . ~ -"' ~> . > II ; o~J .g! u ~ " ' I' l . ~Hlli If <; " ~ ! , l' ! ! .! o. d; n.~ - ~ 0' " ~ ~'6!-Ojl E I ! l' H r ' 8 j! ~ l~l. ';,' , " :i~~ :;;'3",~ . 0 .: i !:~ie :i8d . . Ii j 00"! !I I < i !5~;;; l ~ , I !~ . ~ .l; 1 ...~ c <=>.. "0 i ~5~.~ ~Nl , >N l . , . u ~ <; '.]' & . ~ ; ! > ~~ ~ c ~"1; . , , u , ~ ~ ~ ~ . : J ~ I 00 !., 0" ! I . . , . , ~...,~~ ., <; . . !!!Jiju" .0: ~ I , i I -. 1 "I f~01_E I~ i' 0 , ~ I " .. l!! "5 ~ 8 ii ~ j h. 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" 0 ~ z _ N " >- . <C n~ a '" ~ w , , , f- ~ ~ ~ < ~ <C z (0 n~ , o 0 " ~ m . . . " ~ . ~ z (f) . ~ ~ ~ I . . . . . . 2 ~ ~ ~ z " . ~ ~ z U~ ~ . . z I . . . ~ . f- . . . z ~ '" . . . z ~U " " ~ 0 ~ ~ ~ " ~ ~ z I ~ f f f 0 >- <C I 118 '" w f- I <C (0 ~ ~@ ~ ; e N 3 z. , . u " , z a [to ai z > 8 lI'IIBI. JIlfd ""'" .... O"'ai ~ > .. i ~ . . -- -.- -. - ~ . ~, ~; .!!!$ ~ . z ;!" EXHIBIT "B" ----' 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 Area 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 ofthe 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 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. 11/ 11/ 12 EXHIBIT 2 HSB GATEWAY NO.2, L.P. (MEDLINE) Recording Requested By: ) ) City of San Bernardino ) 300 North "0" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Pemnan, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "0" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofHSB GATEWAY NO.2, L.P., a California limited partnership (the "Property Owner"), as the owner of certain property within the boundaries ofthe 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 Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Pro pert v 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 ~., 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 illustrates the entire boundaries 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 1 the Property Owner (the "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City 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 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" as attached hereto, the AD No. I 022 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 ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this 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 I, Part II 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 ofthe 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 payor 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.1 022 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 initiated and cOl'npleted proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the 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 Component"). 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 2 force and effect and for the further purposes of the collection of the assessment as may herciafter be ordered by the City under Section 4. 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 ofthe 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 detennined pursuant to Part I ofthe 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 ofthe 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part 111 ofthe Engineer's report and the fonnation documents for the AD No.1 022. Section 3. Termination Right by City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is defined 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 3 maintenance or the furnishing of services described in Section I(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. 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 armual 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults detennined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may tenninate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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.1 022 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 (I) the preparation of annual engineering reports, (2) the levyofthe annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (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 ifin 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 confinned by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: HSB Gateway No.2, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance 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 Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) years and shall terminate, unless tenninated sooner as permitted in this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. 5 Section 8. First Year's Assessment. The 2006/2007 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. On request from time to time of the Property Owner, the City Engineer shall confinn in writing, addressed as requested by the Property Owner, the existence ofthis Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 10. Non-discrimination. In perfonning 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. Tbis Maintenance Agreement may be amended or tenninated 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 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 ofthe 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. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 1-4. 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 attorney 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 6 or omissions of Property Owner, its employees, agents or subcontractors in the perfonnance of this Maintenance Agreement. Section 15. No Third Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at anytime to require perfonnance 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 perfonnance 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 in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision ofthis 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 pennitted 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. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate Authoritv. 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 fonnally bound to the provisions ofthis Maintenance Agreement. 7 l Section 22. Covenant Running with the Land. The provisions of this Mainienance 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. [Signatures Follow On Next Page] 8 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: By: HSB GATEWAY NO. 2, L.P., a California limited partnership Patrick J. Morris, Mayor SEAL ATTEST: By: DTC Phase II, LLC, a Delaware limited liability company, its general partner By: Rachel Clark, City Clerk John M. Magness Senior Vice-President Approved as to Form: James F. Penman, City Attorney 9 EXHIBIT "An LEGAL DESCRIPTION OF PROPERTY Parcel 1 of Certificate of Compliance for Lot Line Adjustment No. 05-10, recorded February 10, 2006, os instrument No. 2006-0098997, Official Records, described as follows: Lot 1.1; 810de 46. Rant:ho San lMmanIIno, In tho ~ of S8n IArmt1IrIino, Catm/y of Still BtlmarrHna, statlt of Calrfom/q, as Pit'" map ...~-dttd In Book 7. Pogo .2 of Map$, In /hit 0IIH:a of /110 Counl,y H_ldar of !Ja/d crJ/Jnl,y. ~t th<nfrom tho EMimfy 4O.!W (oat ~f. 10 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 11 I" s ~ ~ . 1 ! . i I "0 ~N I < . u > o . . 00 , > i'l ~~' ~N <(~ 0 z 5 O:::~ . ~ CO (90 . z w i= - <(Z z II- ~ >20 _f-- w -,- O~ 0 1-'" ~ WI- f-O:: ~ wI!! 0 ",0 ztn u 1-1- ,; "'Z z OW WiS 5 . Z~ ~f-- < ",,,, z . W'" w C/)Z - a.W z ",'" C/)W ~ 0'" W~ w ",'" 0 0 ~ Z C/)CIl 0 '" C/)W w -' ~ <(~ . <{ ~ g .~ iO '" I .' ~ j!j'li Iii H 'oil ! H !N.~ 8 '~l ~ ;~><.' JlI "'<=2" ~ t ~_8~i c." 'I' ~3 ~ ~ i -~! 'E 1]:0_ ~~.. mN~ ~~I! "I ~ -. ~ Q 15 .!~ 0'0 ~ 1; -~ ~ >- ~ ,e;!J! Gill ~ f~ l I~ ~ . 0 ii i~ g "u -;-!i i~ il.!i~_l~ _<( U _II:: <> <> OLe . 0 ~ , 0 . ! I . u g ~ I ~ . 0=1'6 . , ~ I I < , ' . . 10' f ~ !N!O; " ci1 , u . I; , 1 . I I: I 1'1 Ii' . " - ~ 1:'0...1 ~ Eg~8~ . I-Zulll.. 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"'!!(t) ~ ~ z -- -.- ~ EXHIBIT "B" ,------- 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 "8" 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 Area 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 ofthe 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 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. 11/ 11/ 12 EXHIBIT 3 WESTGATE NO.1, L.P. (PEP BOYS) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofWESTGA TE NO.1, 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 ofthis Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Pro pert v Owner. (a) This Maintenance Agrecmcnt 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 seq., 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 illustrates the entire boundaries 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 1 the Property Owner (the "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 owncr 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 of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defmed and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this 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" as attached hereto, the AD No.1 022 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 ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this 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.1 022 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 I, Part II and Part 1II 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 ofthe 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 payor 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions ofthe 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 Component"). The AD No.1 022 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 2 force and effect and for the further purposes ofthe collection of the assessment as may hereafter be ordered by the City under Section 4. 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 oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as detennined pursuant to Part I and Part III of the fonnula 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.1 022 which are of benefit to the Property as approved by the CitY!lnd 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No.1 022. Section 3. Termination Right bv City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "e" within the Property Owner Maintenance Areas or any portion thereoffollowing at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 3D-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 ("receipt of notice" is defined 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 3 maintenance or the furnishing of services described in Section I(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. 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 11 and Part III of the formula contained in the Engineer's Report. (b) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults detelmined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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. 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Westgate No. I, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Attn: John M. Magness Fax: (909) 382-0073 With a copy to: Westgate No. I, L.P. 3141 Hood Street, Suite 700 Dallas, Texas 75219 Attn: Stacey Magee Fax: (214) 647-4901 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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. 5 Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) 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 2006/2007 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. On request from time to time of the Property Owner, the City Engineer shall confinn 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 II. 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 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. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed undei the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6 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 attorney 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 PartY Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragrap.hs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of prooffavoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counteroarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 7 Section 21. Comorate Authoritv. 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 fonnally 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. [Signatures Follow On Next Page] 8 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: By: SEE ATTACHED SIGNATURE PAGE. Patrick J. Morris, Mayor SEAL ATTEST: Rachel Clark, City Clerk Approved as to Form: .Ie 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND LIGHTING MAINTENANCE ASSESSMENT DISTRICT Signature Page WESTGATE NO. ], L.P" a California limited partnership By: HlLLWOOD LIT GP, LLC, a Delaware limited liability company, its general partner By: Name: Title: EXHIBIT "An LEGAL DESCRIPTION OF PROPERTY 11 WESTGATE NO.1, L.P. LEGAL DESCRIPTION AFTER LOT MERGER Parcel A of Certificate of Compliance for Lot Merger recorded March 15 2006 as Document No. 2006-0176704, described as follows: ' PARCEL A Lot I and portions of Lots 2, 13 and 14 9fBlock 45, of the Rancho San Bernardino on file in Book 7 of Maps, Page 2 thereof, Records of San Bernardino County, California, located in the City of San Bernardino, and being more particularly described as follows: COMMENCING at the intersection oftbe cepterIine of Tippecanoe Avenue and Mill Street as shown by Record of Survey No. 98-0019 on file in Book llO of Records of Surveys, Pages Sl through 53 thereof; ThenceN.OOo25'OO"W. along the centerline of said Tippecanoe Avenue, a distance of 41.25 feet, to the easterly prolongation ofthe northerly line of said Mill Street, said northerly line being a line parallel with and 41.25 feet northerly of said centerline of Mill Street, also being the POINT OF BEGINNING; Thence S.89038'20"W. along said northerly line, a distance of IllS .25 feet; Thence N.00021'40''W., a distance of120.S9 feet; Thence N.2202S'SS"E., a distance of169.64 feet; Thence N.00025'00''W., a distance of 1880.42 feet; Thence N.89019'S5"E" a distance of 563.12 feet; Thence S.8905S'09"E., a distance of 486.16 foet, to centerline of said Tippecanoe Avenue; Thence S .00"24'SO"E. along said centerIine, a distance oI38.02 feet, to the intersection with tbe centerline of Harry Sheppard Boulevard; Thence S.0002S'00''E. continuing along said centerline of Tippecanoe Avenue, a distance of 2llB.6S feet, to the Point of Beginning. SUBJECT TO easements for Poblic Street and Highway pnrpos.. over Tippecanoe Avenue and Mill Street in favor ofthe City of San Bernardino, by Instrument No. 200S-0306998, recorded May 2, 200S, Instrument No. 200S.Q24111B, recorded April 7, 2005, Instrument No. 2004-0450030, ..corded June 24,2004 and Instrument No. 2002-0124767, recorded March 13, 2002, all of Offi~ial Records of San Bernardino COWlty, California K:\Clients\1210 Hillw(lod\Legal De5eriptitlll$\1210-06 Pllr.Merg-Weil(:1l1C-Prop-Porccls.doc: EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 12 - 0 . w ] ~ :ic8 ~. ~ .~ 'l!1l , ~!~ U 0 I"E " u . ,. 0 ., . lilt ~ ~ ~ j !~ ~ VUI "'.. .!'l-Iz:.:!. ;8. 0 g '" l ~ ~ Ci ~ , w 1;Ig 15 ~ . 8j'SI';1'l~~ . I 'l!2f- o ~ ' I c ~ i,.o -'0.. ~ 0 !C, <3 .!'l! hjH ~:g, 8 iJ ...j ~ ~... 'l! 8~~i~ '8i I &.:i'"'i5, 'l!g8~ . ~ :!" ,-,\1 ~ j! g ~"'j ! "8~! '" 'l! ~ 1'8 .6 '2 1 '0 ~ "' ',l!: I:: ! " ~ 6'&1;; "2 I:: I ~ "'.1:l 0 ~ 'i ~ i? ~:~ ~ ~ ~ . :I .. ~ "'6 'g.. . We d' · ,; j~ ;J ! 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( \ \ \ ) " Z ;:: If- Qu -,- f-'" Wf- W~ ",0 f-f- OOZ OW Z:' ",00 wOO Q.W ",00 Uoo 00'" o Z '" -' Iii L ~ "., U", O"'c:i ~ , ~: M ~@ ~<' ~ ........ lONV:l3oWL :............................................ : , ". , U 0 , 0'" <Ii , li'IIG'IW Il'1Wd .. EXHIBIT "B" 8 ~I . " 0 1 "0 , IJ ~ - ~ 'I f' , , 00 IIJ ! ~ Iii! 0 I : ~ :~ ~ I , I; "., I 0., I ! , o "'<Ii . ~ 0 U , i ~.. . ~ ;: ~ ~ ! ~ i ~ S ! ~ ! ~ ~ ci z , . " . z -1 !I' < j- a: 0 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 "8" 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 Area so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the lands<<aping 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 ofirrigation water to 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. 1// /1/ 13 EXHIBIT 4 TEC PARC LAND, L.P. (MATTEL) . Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of July 24,2006, and evidences the agreement ofTEC P ARC LAND, 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 Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. Obligations ofProoertv Owner. (a) This Maintenance Agreement is entered into between th.e 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 ~., 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 illustrates the entire boundaries of the AD No. I 022 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 "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 of2.25 acrcs or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the tenn "City 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 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" as attached hereto, the AD No. I 022 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 fonnula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said fonnula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and tennination of this 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.1 022 for which the previously approved annual assessment shall be collected by the City. In such case the full amount of the annual assessment detennined pursuant to Part 1, Part II and Part III of the fonnula contained in the Engineer's Report shall be applicable to the Property. The City shall thereupon calculate the full amount as detennined pursuant to the fonnula 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 payor 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 initiated and completed proceedings to fonn 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 pennitted pursuant to Municipal Code Chapter 12.90 (the "Street Lighting District Component"). The AD No.1 022 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 2 I force and effect and for the further purposes of the collection ofthe assessment as may hereafter be ordered by the City under Section 4. 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 oflandscaping, 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 ofthe fonnula 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!lnd installed within the AD No. 1022 as determined pursuant to Part I ofthe 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 ofthe 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I( c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is defined 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 perfonn the 3 maintenance or the furnishing of services described in Section I(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. 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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 (I) the preparation of annual engineering reports, (2) the levy ofthe annual assessments, and (3) the collection of the assessments. 4 Section 5. Notices and Communications Between the Parties. (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 ifin writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "0" Street San Bernardino, California 92418 To Property Owner: TEC PARC LAND, L.P. 105 N. Leland Norton Way, Suite 3 San Bernardino, CA 92408 Atln: John M. Magness Fax: (909) 382-0073 With a copy to: TEC PARC LAND, L.P. 3141 Hood Street, Suite 700 Dallas, Texas 75219 Attn: Stacey Magee Fax: (214) 647-4901 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 6. Acceotance 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. 5 1---- Section 7. Term of Agreement. This Maintenance Agreement shall remain in fu11 force and effect for a term of thirty (30) 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 2006/2007 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. 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 II. 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 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 tenns, 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. Governing Law. This Maintenance Agreement shall be governed by and construed undeF the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 6 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 attorney 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 Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. ParagrapjJs 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 ofthis 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 ofthe 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 perfonnance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Scvcrability. Every provision ofthis 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. Counteroarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 7 Section 21. Corporate Authoritv. 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 ofthis Maintenance Agreement to be recorded with the Office ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 8 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: By: SEE ATTACHED SIGNATURE PAGE. Patrick J. Morris, Mayor SEAL ATTEST: Rachel Clark, City Clerk Approved as to Fonn: ,fc 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE AND LIGHTING MAINTENANCE ASSESSMENT DISTRICT Signature Page TEC PARC LAND, L.P., a California limited partnership By: HilIwood LIT GP, LLC, a Delaware limited liability company, its general partner By: Name: Title: EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY 11 ,. TEG PARe LAND, L.P. Property Description Alliance California Mattei Site Parcel J of City of San Bernardino Certificate of Compliance for Lot Line Adjustment No. 2003-06, recorded July 2,2003 as Instrument No. 2003-0486485, Official Records of San Bernardino County, California, described as follows: Those portions ofLat 7 of Block 48 and Lats 5, 6, 7 and 8 of Block 49, all of the Rancho San Bernardino on file in Book 7 of Maps, Page 2 thereof, Records of San Bernardino County, California, located in'the City of San Bernardino, and being more particularly described as follows: BEGINNING at the intersection ofthe o.enterlines of Tippecanoe Avenue and Harry Sheppard Boulevard as shown on Record of Survey No. 97-0020, recorded in Book 109 of Record of Surveys, Pages 3 and 4 thereof, Records of said San Bernardino County; Thence N.75'44'55"E. along the centerline of said Harry Sheppard Boulevard, a distance of 4.98 feet, to an angle point therein; Thence N.79"34'15"E, continuing along said centerline, a distance of 724.55 feet; Thence northeasterly continuing along said centerline along a tangent Curve Concave southeasterly, having a radius of 1 030.80 feet, through an angle of 09'26'22", and an arc length of 169.82 feet; Thence N.89000'37"E. continuing along said centerline, a distance of 654. 77 feet; Thence N.00057'45"W., a distance of625.14 feet; Thence N.88'53' 15"E., a distance of 44.51 feet; Thence N.00'24'SO"W., a distance of761.96 feet; Thence S.88057'51 "W., a distance 0000.09 feet; Thence N.00056'02"W., a distanceof445.75; Thence S.88053 '20"W., a distance of 642.89 feet; Thence S.0I'06' 56"E., a distance of 59.16 feet; Thence S.89035' I O"W., a distance of634.27 feet, to the centerline of said Tippecanoe Avenue; Thence S.00024'50"E. along said centerline, a distance of 1912.55 feet, to the Point of Beginning. SUBJECT TO easements over Tippecanoe Avenue and Han'y Shepard Boulevard for public utilities and rights of way as they now exist. The above described parcel of land contains 63.202 acres, more or less. ,----- EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 12 w ~ . ~ I W I ~~. <(O~ o::~~ (90~ <( Z z - r- ~ O~ ~ I- 0:: a z~ ~. w Ci ~ < ~"""ffi C/)Z~ C/) lJ.J ~ w~ ~ C/) C/) u C/) lJ.J ~ <( ~ . <t: w o z U g !:!>- on IJl l .," " i! nfl Ii ,,~? :(;1" 11 ~ ~l!I!.L. ' i Ii 1lI .c c 8" ~'" g. ~8~i ;;; 1-1, -u 2 ~::: r~_ 'E iR;~ 2.~ ~ ~.~ ~"I ~ '; ~::::" "5 "5 ~. . ! '00" '"~ ~;;- ~ ~a ! I. !i :"]j i~ i i.~Ji~ ~~ u€a:oo[o , i l ~ ~ , I , ! . , " , ~~ u l i u z U . . :~ ,. S. ~ I , j !Ill ~E " z i= If- Q" -,- f-'" wf- w~ ",0 f-f- OOZ OW z::E ",00 WOO Q.w ",00 ,,00 00'" o z '" -' @ i I K @ ........ ]ONYO]oldl1 ~......._..._....._---_.........._....._-_._- , .w, U W , 00:: cD ., ~, ,""d 1 ~ Ii -d ~ gi!~ 8:.!IIci ~~i~ ~o:i ! j~~i -g 1-~- i~! i ~ ~ !~- !~i "'B'" l€~ -. . ig~ i 1 ~ :::~ i! ~ :do .'i~~i ! d, i., "I" w< ~.t~ H "i l. ". ~~ III ~IH ,. Il ., l~ .!s:1 g~i H. O\'l~ li~ !i8 L ( \ \ '\ ) ~ .w, u., o"w ~ z @ ....... ~ 5 ~ . " ..... ..., .. ~ ~, a' ...EIl ~ ~ z EXHIBIT "B" . 0 , . " I ! u ~ I 'I) . < . " , f ! ie, iI; 0 u , 0 1 , i! 0 :D '! , w 00. . " ~~~ < . " w 0:;: I zu i J is ~ z ~ ~Q IliI ~~ Z z5 15 W. ~a ~~ II~ I DI a ~ ~ ~:s w~ i,. au ~~ HI l!s ~" .~Il z~ W ! i ~~ I ag a I w. I I ~~ ~ ,N _ ,., .' N '1 .' , ~ ~ 0 8 ~ 1<< o . 0 Il . <0' I~ U'II" ,! . 0",,,; i I' ~ w, . " 01 u > , " . . i Ii · : ; I .. i Dlll I ~ ~ ~:5 d z ~i~ " z J ~ ~ " . ~ ~ ~ ~ [L -' . 0 B @ . " " ~ z n~ <t: ! -' , , , ~ ~ ~ , ~ U . n~ , 0::: . . . " . <( " " " . . !.!!.! !.! ~ ~ [L . . . . . w ~ , o 2i a ~n ~ i . u ~ w ~n ; ~ . r- 1 < < < ~ ffi n~ . . ~ o 0 0 . . & & & l ~ ~ -' ~ ~ ~ w I 118 r- r- I <( :2' '-.-/ 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 adj acent 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 Area 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 ofthe City Engineer All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied 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. /11 11/ 13 EXHIBIT 5 INLAND VALLEY DEVELOPMENT AGENCY (IVDA) (DF AS PROPERTY 1 & 2) Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of July _, 2006, and evidences the agreement of the Inland Valley Development Agency, a joint exercise of powers authority (the "Property Owner"), as the owner of certain property within the boundaries ofthe City of San Bernardino Assessment District No. 1022 (referred to herein as either the "AD No.1 022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City"). The Property is also referred to as the DF AS Property I and 2. THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Pro pert v 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 seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the AD NO.1 022. Exhibit "B" as attached hereto 4827-9034-7777.1 1 illustrates the entire boundaries 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 "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City 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 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" as attached hereto, 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 II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this 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.1 022 for which the previously approved armual assessment shall be collected by the City. In such case the full amount of the armual assessment determined pursuant to Part I, Part II 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 payor 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.1 022 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the 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 4827-9034-7777.1 2 District Component"). The AD No.1 022 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. 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 oflandscaping, and any other common area landscaping considered to be of benefit to the Property Owner Maintenance Areas as determined pursuant to Part 1 and Part III ofthe 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.1 022 which are of benefit to the Property as approved by the City and installed within the AD No. 1022 as determined pursuant to Part 1 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 ofthe 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 documents for the AD No.1 022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer 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) and/or Exhibit "c" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is 4827-9034-7777.1 3 defined 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 the furnishing of services described in Section I (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. 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 ofthe 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination ofthis Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Street Lighting District Component. Whether or not this Maintenance Agreement remains in effect through the full term hereof, the Property shall be subj ect 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: (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. 4827-9034-7777.1 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Inland V alley Development Agency 294 S. Leland Norton Way San Bernardino, California 92408 Attention: Executive Director With a copy to: Lewis Brisbois Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Attention: Timothy J. Sabo (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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 Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) years and shall terminate, unless terminated sooner as permitted in 4827-9034-7777.1 5 this Maintenance Agreement, thirty (30) years after the effective date set forth in the introductory paragraph hereof. Section 8. First Year's Assessment. The 2006/2007 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. 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 ofthe Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. 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 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. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to contlict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 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 attorney fees, damage to property or injuries 4827-9034-7777.1 6 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 ofthis Maintenance Agreement. Section 15. No Third Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18 . Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision ofthis 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. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate Authoritv. 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 4827-9034-7777.1 7 provisions of this Maintenance Agreement. Section 22. Covenant Rwming 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 ofthis Maintenance Agreement to be recorded with the Office ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 4827.9034-7777.1 8 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 By: Patrick J. Morris, Mayor SEAL ATTEST: Rachel Clark, City Clerk Approved as to Form: roperty Owner: Inland Valley Development Agency Co-Chairperson Co-Chairperson Approved as to Form: Timothy Sabo, Agency Counsel 4827-9034-7777.1 9 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY [Portion ofDFAS currently owned by IVDA] Tract 1: - LOT 14 , BLOCK 46, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 2, IN THE OFFICIAL RECORDS OF SAID COUNTY. Tract 2: THE EASTERLY 40.59 FEET OF LOT 13, BLOCK 46, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 7 OF MAPS, PAGE 2, IN THE OFFICIAL RECORDS OF SAID COUNTY. 4827-9034-7777.1 10 4827-9034-7777.1 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY 11 . " ~ . w w ~ . I ~gj. <( 0 ~ O::~~ C) 0 ~ <( z ~ -I- . OU 0 I- 0:: ~ I- 8 ZUJ~ WCi~ < ~t-ffi (f)Z~ (f) UJ ~ W~ ~ (f) UJ u (f) UJ ~ <(gJ. <{ "I ~ ~:5 .~ ~ .. 5 I]H . '0 d '8" ~ ~ ' ,. i "$~ I ' , B~ Wili If , I" 1 , "~." I 8 d';1i;J 'l!iS:i",Ol!! E I Ii ~u . 1 H !' , 8 IU ~ i~L 'f'> ","'0 ,,~~ ;~8~ u HB j g.Jl il! :i8~ ~ , ' .,. I ~~~i . ~ Ii i ~ ! I~ I ~u:~ t,l" ~ hi< j~ P "NO , . ! ~ -ll I s . ~ ~ - ~ , . ~, ~"1!~ ~ ~ ! ~ ! > < ~~_ll" 'O- j , " " .~~~ I 'I , I ~ , =.." ! . ! ~ I I I ~~~Bi ,~ , , . ! ! . . "I" u , e i ~i i ~ ~ , il , >-","- "'u -l!l l h~g ! ~ i l' h i1 11 '" 8 ~..= _ ...\!l , , ~~l5 ~ _ o("'u e:: C 0 "'0 u < ! ! t ~-'--_._-"".._"_._---_._._---"'..'..."--_._--_.': '-' Z >= :1:>- Qu ~- >-'" w>- W'!! ",0 >->- <flZ OW z:l; <(<fl W<fl a.w <(<fl U<fl <fl<( o Z <( ~ Iii I ~@ ~<' ~ ........ lONW:l3ddl ~_.-.._...._---_....__.._......._--_..__..... @ : ". , u. , 0'" ai , . _. fl1I<d CJVOlI .... .. ~ ~< r ~ ( \ \ \ ) N "., u., o"m ~ > @ ~ 0 , , ~ ! I ~ . u . , 8 ~ 0;1 m , " , " " , 1 " " , , , , l " t t " 10 . 'N < ' 1'0 > I u . u i ~ 0 , , , ! i ~ < , , 0 l . ~] - , . e ~ ~ '8 < " ,...Z-Oal ~ 0:;: zu is ffiz It: ~Q i<C g~ ~o ~~ o~ ~ ~g; w~ Ou ~~ Om IL ~ ~ o z~ ~~ og o I i J liil ,I~ I !~~ illll .~II ! i m m I . I I I ~ I I ~ 8 2 I~ S~ ~ 00 . ~ ~ 0 10 I~ lit I '" I 15 ~~, ~ :g ""! m ie > . · I! ; ~ ~ ~ ~ ~ 5 , 0' u .' O"'o:i u , o z " z ~ < " o !!II 9 -' , , i "- I ~ >- z U ~ Z ~ w i 0 " <( < I- ~ Z @ _ N " . w ~H " L , , , ~ CL > > > 0 ~ ~ ~ ~ ~ ~H , -' " ~ W o "'rri ~ ~ > u > " " v ~ W ~ ~ ~ . . . , 0 g g ~ > " ~ ~ >- n~ . ~ ~ ~ ~ ~ ~ W . -' ~ ~ ~ " . -' ~ ~ ~ " ~ <( f f f i ~ > <ri 0 -.osC[) ~ i .1 118 0 z I <( -' Z ~ e EXHIBIT "B" 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 Area 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 water to 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. /11 11/ 4827-9034-7777.1 12 EXHIBIT 6 KOHL'S DEPARTMENT STORES, INC. . Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of ,200_, and evidences the agreement of Kohl's Department Stores, Inc, a Delaware Corporation (the "Property Owner"), as the owner of certain property within the boundaries ofthe 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 Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section I. Obligations of Pro pert v 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 seq., 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 illustrates the entire boundaries of the AD No. I 022 and includes therein a notation of the areas C:\Documents and Settings\carlyle\Local Settings\Temp\mJt2B.trnp 1 - thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner (the "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 "City 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 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" as attached hereto, the AD No. I 022 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 II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this 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 I, Part II 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 payor 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the 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 Component"). The AD No. 1022 shall only include within the Property Owner Maintenance C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 2 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. 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 oflandscaping, 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 documents for the AD No. 1022. Section 3. Termination Right bv Citv Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is defined in Section 5(b) herein). The City Engineer shall also have the right to terminate this C:\Documenls and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 3 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) 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. 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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.1 022 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: (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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments. C:\Documents and Settings\carlyle\LocaJ Settings\Temp\mlt2B.tmp 4 Section 5. Notices and Communications Between the Parties. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Kohl's Department Stores, Inc. N56 WI7000 Ridgewood Drive Menomonee Falls, WI 53051 Attn: SVP of Logistics with a copy to General Counsel at same address (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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 Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) 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 2006/2007 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 C:\Documents and Settings\carlyle\Local Senings\Temp\mlt2B.tmp 5 the Engineering Report. Section 9. 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 Maintenance Agreement. Amendment and Termination. This Maintenance Agreement constitutes the entire Maintenance 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. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis.Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 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 attorney 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. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 6 1 Section 15. No Third Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Corporate 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 C:\DocumenlS and Settlngs\carlyle\Local Settings\Temp\mlt2B.tmp 7 or any portion thereof, and their respective successive owners and assigns. Section 23. Recording. The City Clerk shall cause a copy ofthis Maintenance Agreement to be recorded with the Office ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 8 " 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 tbe 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: Kohl's Department Stores, Inc. By: Patrick 1. Morris, Mayor llY~.~ Name: ent Title: S V Logistics SEAL ATTEST: Rachel Clark, City Clerk Approved as to Form: James F. Penman, City Attorney STATE OF Wisc.ciOS., ) \ I 1...IA' )SS COUNTYOF~ ) Personally came before meY:l~l:lB;.,~ay of ,) ~/ ,2006, tbe above-~amed J ~ W , to me .k.hOWI) tQ,'t)e:,1,I;1e person W 0 exec te the foregomg mstru ent and acknowledged the sam(:.\ Ie:, .' . :,' >. }:,,:\ 'Y ~-: ':'-.~\"j'::.. 5 Printed e ';Notary Public: State of ~~~ My CommIssIon expIres . S;i'(?f:::~'! J. ,..... .,.'....' C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 9 I""-~'<:"f~ r;'~~;..~"-":~ ~..= ,,~ .,~ t :r-'i', ~ ~( l""'~,,i' ~.~ ,'~~~ </ '" f:L_. ~~ '.""=,,,,>.~.~ ._..-..,.__.....'..~<-:... -.' '" ~,. ''''--~ .,,,.,,._~~ EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY KOHL, PnUe I Gran lot 3 and portions of Lots 2. 4, 11, 12 and 13 of Slock 45, l'{lll1cho S~n Bernardino, ftled in Bllok 7 of Maps, !>age 2lhereDf, ReCOrds of San Bernardino County, Califomla, lOS/ether with Lot 15 "nd portions of L.ots 13, 14 and 16 and Stockton Street (vacated), of Ihe Ida Stockton F'lVe Acre $ubd"'Nis1on, filed In Soak 19 or Maps. Pages 57 imo SS !Ile~r, Records of Sill1 Semanjino CQ1Jnty, CaJifomla, as &MWn by Record of Survey No, 98-0019 on file 1n Book 110 of J'lecord of Surveys, Pages 51l"~U9h 53. there~, ReCOrds of San Bernardino Counjy, California, aU bealed in fle Cily OrSaR Bemardlno, and belr-.g more partieularly clescrlbed liS fol1owo; "'::":, COMMENCING at the Sovthwe.t CQmerof safd LoU, belnQ a point4~.25 'eet nortJerly and 3fJ.oO feel westel1y of the cenlerline fnooIliedion of Lena Roed llnd MJR . Street as shown by said Record of Survey NQ. $6-0019; Tnenee N.ooo2S~ 1W. alol'll/the Westerly line of said L.oI4, being II ~ne paralfel and .,~.OO fEelllleslefly of said centerline of lena Road,ll distance of 2SS.sa feet, to the wtl$terly prQlongation of ~'ie IiQrtI1~rfy line of the southerly 300.00 feet of ~id Lot" M ' shown by said Record of Survey No. 018-0019; Tnenee N.89"38'a5'E. alot19 said ....'e$!erly PfQdUeed nor'J1eny line, II dj~ce of 152.83 feet, to the POINT OF BEGINNING; Thence N,OO"26'21W.. a disl:.ance of 1:260.00 feet; Thonce S.8S.3S'04'W.. a dis:ance of 752.00 feet, to the Westerly fme of $aid Lol 1 e. beil1g a line parallel end 38.00 f~l we~ell'y 0/ the cerJelline 01 said Lena Road as shown by said Reoord of Survey No. 9$-0019; . Thence N.OO"20'58W. 1l10<lg sard W~rly l4,e, a distance of'407 .341eet, to tl1e SQ\lthelfy Ul'le Qf the Draillage Ditch Easement as de1;aibed In Deed !'!eOre~d June~, 1944 in eooll 1693, Pag. 2Q thereof, OffICial Records OfSlln Semaro1no County, Califom ta; Thence N.69.36'SS'E. along $;lid 50ulherly fine, a distance 0/699.23 feet; Thence tloril1ees~rIy along Silk! Southe.1y line, alcng II curve coneava northwesterly, having a radius of 225.00 fe-et througn a angle of 30.22'32" and all are length 01119.26 leet, to the east line of sald Lot 13, alllo be~wcslline of said Lo114; Thence N,Sso14'2J'S.. a dlstance 0/208.31 feet; Thane.; nOrlh!>~ste(ly along a WIVe concave SOlltheastMy, ha"Yil'lg 3 radius or 2€e.OO fee!, lhrolJ~ an lingle v1SO"SO'iS' and all <lre iIlr.glh 0/ 143.1S feet; Thence S.89"S5'OS"E., a distallce 0/715.48 (eet; C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 10 Thence S.OO'2S'21"E.. EI distance of 2155.21 feel. to the northerly llne of I street, beln~ 8 line parallel with ;Ind 41.25 feel northerly (If the cel1terli.~ cf said J Street; Thence S.6.go3S'20"\iV. along Mid northoeriy n.ne of Mil! S!ree~ a distance c 2::!8.60 fee!" to the sout.'1east cotne! of said lot 3; Thcttce S.89'38~S"W. 1I1ong said nartlwrty line of MiD Strefl'~ a distance t 807.34 felit to the southeast comer of said LeU as $i'l~ by said Record of SUI No. ea-OCl'19; Th!;lll~ N.OO"W'SSW. ~I~ng ~ easterly line or said lot4. a distance d: feet, to the nortlled)' line of the $aid ooullieIly 300.00 feet of Lot 4; thence s~a~SYI.. a QlStance of 58.81 fool. to the Pt)lnl Of Beglnnrl'lg. 'l1ra above descril;>ed parcel of land contains: &0.251'1 acres, moliiJ or less. . ~ cP....~- -=-" Marissa Cro....1her, PLS 6152 Dale; 1l-12.-0\ Prepared under the tUjleMsiot'l of: C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 11 ,---- . . EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 12 . ~ u . i " { u o o ~ . . 1; . o o € -;;;' !:! I '. ' i :; I"!',I , i! i I ! ~_I jig, .. g ~ ~.; s z"cs'" .s i l!Hl ou~... ~ !~! It 8 8 ~~:<l ~ li::o .0 i:ll! II ",:;i ~ u p_ : ! ,~ 0 ~ . I: , i ::1<:" -g ! ~ -ll ~ ~ ] i ~~ ~ 1 ~ i ~II ! i ~ ~ ! ~ i,.. I ! l ~ ! Us '0 :;'0 ~:s ~ g <( ~i~5~ :s II,., ; ! ~. . rli Iii f"H 8 j I i.. ~ . ,,<, . '.8" ~ ~ II ;; h~ ~ ~-1l. ~ I · ~ , , : 'I r~ 1 U'D .ct : I~' "0 ~ a _ "u -$ ~ --,! !!-~ 8.dicJi . I i . !. K : . p . i ~ : , l .?; ,0;- u ! i o f 5 ~ , i l I ~ I ~~ ~ I I . : i I IE . ! ~ j ~ ! . . 1; ~ u ~ . . . 1; . u . u . u , I ..1 '.'1 I-I IIU I'II {s . i 0:;: zu ~L ~a ~v; Z z5 ; ~i5 ~~ a~ ~~ ~ '!ia w" au ::;~ ... ~=> o z~ w ~~ ag a I .' , G ( \ \ \ .~ ) " .:::. u., O""c:i ~ , ~gj. <( 0 ~ O::~~ c.90~ <(Z~ _ f- " OU 0 I-cd f-u zoog w is ~ ~f-i enZ. enW~ W~~ en (/) 0 enW~ <(gJ. <( . .1 I!~ ~;I ~ ..,....1...... 00' III I ~ ~ 0 .---...--........--...---.-------..........-...------. . . co z ;:: I.... Qu ;:0:: w"" W!!! ",0 ........ "'Z OW z~ <'" w'" Q.W <'" U'" ",< o z :'i I , !il 1 i @ . . o i : ~ ~ ~ o ..;; nn ~ ! ~ ~ @ y., u., o"'ai , '%@/ ~ , I ! ~ @ .@ ~ / @ ~., "k. ~~; @ ~ ~ ci i ~I~ @I ~. ~'>:>NY:lldoIL .---.----........---....---.--............... --.... z ~ ~ () ~ Z . Ul ~ - W ~ Dc: 0 ~ f- H~ ~ Ul i i i , - f- . Z U~ , ~ " ~ W " " " ~ . :;; !.!!.! !:! € ~ ~ ~ ~ f- o 0 0 ~ Dc: ~ ~ 5 ~ " <( ~ ~ a a ; € 0... ~ ~ ~ , w < < < . 0 ~ ~ ~ . . o 0 i ~ & & & ~ Ul f f f 0 --' I I 118 0 I y: '-' @ < < y.' u ~ , 0'" <Ii ~ , O"'CIi ~ > -. - .. ~ -- j- e ~ ~; ~. '" " z "SEf) -- _.~ ;.\ EXHIBIT "B" 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 Area 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 water to 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. III III C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 13 I EXHIBIT 7 STATER BROS. MARKETS I Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office ofthe City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of ,2006, and evidences the agreement of Stater Bros. Markets, a California corporation (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 Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into 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 seq., 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 illustrates the entire boundaries of the AD No. 1022 and includes therein a notation of the areas thereof that are the subject ofthis Maintenance Agreement which are intended to be maintained by C:\Documents and Scttings\carlyle\Local Settings\Temp\m1t2B.tmp 1 the Property Owner (the "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City Engineer" as used in this document shall be defined and shall mean the "City Engineer or hislher designee"). The Property Owner is eligible to enter into this 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" as attached hereto, 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 II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination ofthis 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 I, Part II 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 payor 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the portions ofthe 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 Component"). 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 C\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 2 force and effect and for the further purposes of the collection ofthe assessment as may hereafter be ordered by the City under Section 4. 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 oflandscaping, 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD No. 1022. Section 3. Termination Right by City Engineer. (a) In accordance with subsection (b) herein the City Engineer shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section I (c) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of 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 ("receipt of notice" is defined 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 C:\Documents and Settings\carly1c\Local Scttings\Tcmp\mlt2B.tmp 3 I maintenance or the furnishing of services described in Section I (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. 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 ofthe 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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 party pursuant to or as required by C:\Documents and Settings\carlyle\Local Settings\Temp\mlt28.tmp 4 this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Stater Bros. Markets 21700 Barton Road Colton, California 92324 Attn: Phillip 1. Smith Facsimile: (909)370-2390 With copies to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, California 92501 Attn: Bruce D. Varner, Esq. Facsimile: (951)274-7770 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt28.tmp 5 Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term ofthirty (30) 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 2006/2007 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. 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 ofthis 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 ofthe Government Code. Violation ofthis provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section II. 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 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. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 6 I 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 attorney 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 Party Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modifY, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of pro off avo ring or disfavoring any party by virtue ofthe authorship of any of the provisions of this Maintenance Agreement. Section 18. Waiver. The delay or failure of either party at anytime to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Maintenance Agreement shall be effective unless in writing and signed by a duly authorized representative ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severability. Every provision ofthis 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 ofthis 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. Countemarts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. C:\Documcnls and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 7 Section 21. Corporate Authoritv. 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 ofthis Maintenance Agreement to be recorded with the Office ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. /II /II [Signatures Follow On Next Page] C\Documents and Settings\carlyle\Local Settings\Temp\mltlB.tmp 8 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: Patrick J. Morris, Mayor Stater Bros. Markets, a California corporation By: SEAL ATTEST: By: Jack H. Brown, Chairman and CEO Rachel Clark, City Clerk By: Bruce D. Varner, Secretary Approved as to Form: James F. Penman, City Attorney C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 9 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mlt28.tmp 10 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERIY LOT 7, BLOCK 48, RANCHO SAN BERNARDINO, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 7 OF MAPS, PAGE(S) 2, RECORDS OF SAID COUNTY, DESCRIBED AS FOLLOWS: COMMENCING AT A I" IRON PIPE WITH THE CITY OF SAN BERNARDINO TAG MARKING THE CENTERLINE INTERSECTION OF TIPPECANOE AVENUE AND MILL STREET, AS SHOWN ON RECORD OF SURVEY FILED IN BOOK 100, PAGES 76 THROUGH 81, INCLUSIVE, OF RECORD OF SURVEYS OF SAID COUNTY; THENCE NORTH 00 25' 00" WEST ALONG THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 1338.06 FEET; THENCE NORTH 890 35' 00" EAST PERPENDICULAR TO THE CENTERLINE OF SAID TIPPECANOE AVENUE A DISTANCE OF 86.14 FEET TO A POINT IN THE EASTERLY LINE OF SAID TIPPECANOE A VENUE, SAID POINT BEING THE NORTHWEST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL, SAID POINT ALSO BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 00 25' 00" WEST ALONG SAID EASTERLY LINE OF TIPPECANOE AVENUE A DISTANCE OF 256.72 FEET; THENCE NORTH 890 00' 20" EAST A DISTANCE OF 421.79 FEET; THENCE SOUTH 0059' 10" EAST A DISTANCE OF 256.71 FEET TO THE NORTHEAST CORNER OF SAID UNITED STATES FOREST SERVICE PARCEL, SAID CORNER BEING MARKED BY A 3" BRASS DISK STAMPED "USFS 1993"; THENCE SOUTH 890 00' 20" WEST ALONG THE NORTHERLY LINE OF SAID UNITED STATES FOREST SERVICE PARCEL A DISTANCE OF 424.34 FEET TO THE TRUE POINT OF BEGINNING. THIS LEGAL IS MADE PURSUANT TO THAT CERTAIN CERTIFICATE OF COMPLIANCE, CERTIFICATE NO. 98-002, RECORDED JULY 30, 1998, INSTRUMENT NO. 98-300250, OFFICIAL RECORDS. APN: 0136-341-17-0000 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY THAT PORTION Of BLOCK 48 Of RANCHO SAN BERNARDINO AS PER MAP RECORDED IN BOOK 7 Of MAPS, PAGE 2, RECORDS Of SAID COUN1Y, IN THE CITY Of SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS fOLLOWS; COMMENCING AT THE INTERSECTION OF THE CENTERLlNES OF OTTO GERICKE DRIVE AND HARRY SHEPPARD BOULEVARD, AS SHOWN ON RECORD OF SURVEY RECORDED IN BOOK 109, PAGES 3 AND 4, OF RECORDS OF SURVEY IN SAID OFFICE OF COUNTY RECORDER; THENCE NORTH 89' 00' 37" EAST ALONG SAID CENTERLINE OF HARRY SHEPPARD BOULEVARD, 368.06 FEET; THENCE SOUTH 00' 59' 23" EAST, 40.00 FEET TO THE SOUTHERLY RIGHT-OF-WAY Of HARRY SHEPPARD BOULEVARD, SAID POINT BEING THE TRUE POINT Of BEGINNING; THENCE SOUTH 00' 58' 49" EAST, 563.07 fEET; THENCE NORTH 89' 24' 21" EAST, 342.30 fEET; THENCE NORTH 01' 04' 03" WEST, 565.44 FEET, TO THE SOUTHERLY RIGHT-Of-WAY Of HARRY SHEPPARD BOULEVARD; THENCE SOUTH 89' 00' 37" WEST, ALONG SAID RIGHT-Of-WAY, 341.44 FEET, TO THE POINT Of BEGINNING. SAID LAND IS DESCRIBED PURSUANT TO CERTIFICATE Of COMPLIANCE FOR LOT LINE ADJUSTMENT NO. 2001-005, RECORDED JUNE 7, 2001 AS INSTRUMENT NO. 01-220978 OFFICIAL RECORDS. APN: 0136-341-28-0-000 EXHIBIT "A" LEGAL DESCRlPTION OF PROPERTY THE LAND SHOWN ON CERTIFICATE OF COMPLlANCElLOT LINE ADJUSTMENT NO. 2001, 004 RECORDED JUNE 7,2001 AS INSTRUMENT NO. 20010220977 OF OFFICiAl RECORDS, BEING MORE PARTICULARLY DESCRIBED IN THE DOCUMENT AS FOLLOWS: IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING A PORTION OF BLOCK 48 OF THE RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7 OF MAPS, AT PAGE 2, RECORDS OF SAID COUNTY, TOGETHER WITH PORTIONS OF VACATED STREETS AND AlLEYS LYING WITHIN AND ADJACENT TO SAID BLOCKS, DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERLlNES OF TIPPECANOE AVENUE AND MILL STREET; THENCE, NORTH 89'39'04" EAST, ALONG SAID CENTERLINE OF MILL STREET, 541.14 FEET, TO THE CENTERLINE OF MEMORIAL DRIVE; THENCE, NORTH 00'59'10" WEST, ALONG SAID CENTERLINE OF MEMORIAL DRIVE, 426,36 FEET, TO THE CENTERLINE OF PAUL VILLASENOR BOULlEVARD (PROPOSED STREET); THENCE, NORTH 89'00'52" EAST, ALONG SAID CENTERLINE OF PAUl. VIl.LASENOR BOULEVARD (PROPOSED STREET), 299,00 FEET; THENCE, AT RIGHT ANGl.ES TO SAID CENTERLINE, NORTH 00'59'08" WEST, 44.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE, NORTH 00'59'10" WEST, 689.75 FEET; THENCE, NORTH 89'02'13" EAST, 351 07 FEET; THENCE, SOUTH 00'59'11" EAST, 689.61 FEET, TO THE NORTHERl. Y LINE OF PAUl. VILLASENOR BOULEVARD (PROPOSED STREET); THENCE, soum 89'00'52" WEST, ALONG SAID NORTHERLY LINE, 351.09 FEET, TO THE POINT OF BEGINNING. APN, 0136-341-26-0000 Exhibit "A " IN THE 0lY OF SAN BERNARDINO, COUN1Y Of SAN BERNARDINO, STATE OF CAUFORNlA, BEING A PORTION Of BLOCK 48, RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7, PAGE 2, RECORDS Of SAID COUN1Y, TOGETHER WITH PORTIONS OF VACATED STREETS AND AUEYS LYING WITHIN AND ADJACENT TO SAID BLOCK DESCRIBED AS FOLLOWS: COMMENCING AT THE INTERSECTION OF THE CENTERUNES OF TIPPECANOE AVENUE AND MILL STREET, PER RECORD OF SURVEY, RECORDED IN BOOK 100, PAGES 76 THROUGH 81, RECORDS OF SAID COUN1Y; THENCE ALONG SAID TIPPECANOE AVENUE CENTERUNE, NORTH 000 26' 01" WEST, 1, 808.90 FEET; THENCE PERPENDICULAR TO SAID CENTERUNE, NORTH 890 34' 59" EAST, 86.14 FEET TO THE EAST RIGHT -DF-WAY UNE Of SAID "T1PPECANOE AVENUE, AND THE TRUE POINT OF BEGINNING; THENCE ALONG SAID EAST RIGHT-OF-WAY UNE, NORTH 000 25' 01" WEST, 304.06 FEET; THENCE LEAVING SAID RIGHT-Of-WAY UNE, 390 03' 37" EAST, 31.60 fEET, A UNE PARALLEL AND 40 fEET SOUTHERLY OF THE CENTERUNE OF HARRY SHEPPARD BOULEVARD AS SHOWN ON RECORD Of SURVEY 97-008, RECORDED IN BOOK 109, PAGE 6 AND 7, RECORDS Of 5AID COUN1Y; THENCE ALONG SAID SOUTH RIGHT-Of-WAY UNE, NORTH 79034' 15" EAST, 348.23 FEET; THENCE LEAVING SAID RIGHT, SOUTH 500 42' 27" EAST, 34.26 FEET; THENCE SOUTH 000 59' 10" EAST, 363.18 FEET; THENCE SOUTH 890 00' 29" WEST, 393.00 FEET TO SAID EAST RIGHT-Of-WAY UNE OF TIPPECANOE AVENUE AND THE POINT OF BEGINNING. APN, 0136-341-33-0000 I PARCEL t-2 Property acquired from I VDA Page 1 of 11 EXHIBIT "A" In the City of San Bernardino, County of San Bernardino, State of California, being those portions of Block 48 and 49 of the Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacent to said block and lots, described as follows: BEGINNING atlhe centerline intersections of Harry Sheppard Boulevard and Del Rosa Drive as shown on Record of Survey, filed in Book 109, Pages 3 and 4, of Record of Surveys of said County; thence along the centerline of said Harry Sheppard Boulevard, South 89'00'37" West, a distance of 149.32 feet to the beginning of a tangent curve concave southerly, havJng a radius of 1,200.75 feet; thence westerly along said curve and centerline, through a central angle of 2051'45", an arc distance of 59.98 feet; thence continuing along said centerline, South 86'08'52" West, a distance of 40.12 feet to [he beginning of a tangent curve, concave northerly, having a radius of 1,200.75 feet; thence westerly along said curve and centerline, through a central angle of 2'51'45", an arc distance of 59.99 feet; thence continuing along said centerline, South 89'00'37" West, a distance of 32.72 feet; thence at right angles to said centerline, South 00059'23" East, a distance of 40.00 feet; thence South 01'04'03" East, a distance of 565.44 feet; thence South 89'24'21" West, a distance of 342.30 feet; thence North 00'58'48" West, a distance of 563.07 feet; thence North 00'59'23" West, a distance of 40.00 feet to the centerline of said Harry Sheppard Boulevard; thence along said centerline, South 89000'37" West, a distance of 1,004.66 feet to the beginning of a tangent curve concave southerly, having a radius of 1 ,030.73 feet; thence westerly along said curve and centerline, through a central angle of 9026'22". an arc distance of 169.81 feet; thence continuing along said centerline, South 79034'15" West, a distance of 208.69 feet; thence leaving said centerline, South 00'59'10" East, a distance of 548.55 feet; thence North 89000'50" East, a distance of 305.00 feet; thence South 00'59'10" East, a distance of 506.50 feel; thence South 89000'50" West, a distance of 305.00 feel: thence South 00'59'10" East, a distance of 752.02 feet; thence North 89000'52" East, a distance of 305.00 feet; thence North 00"59'10" West, a distance of 715.74 feet; thence North 89'02'13" East, a distance of 351.07 feet; thence South 00" 59' 17" East, a distance of 715.60 feet; thence North 89000'52" East, a distance of 105.96 feet; thence North 00056'06" West, a distance of 25.99 feet; thence North 89000'52" East, a distance of 1,257.97 feet; thence North 01'09'52" West, a distance of 1,794.41 feet: thence North 89000'37" East, a distance of 4871 feet; thence North 01'09'52" West, a distance of 40.00 feet to the intersection of centerlines of 1;'tvDA f'ROJ(CT\LfG"'lS\NewFolde~ParcelI2 1Q.2002 ....pd Page 1 of 2 PARCEL 1-2 Property acquired from IVDA Page 2 of 11 said Harry Sheppard Boulevard and said Del Rosa Drive and the POINT OF BEGINNING Bearings and Distances used in the above description are on the Califomia Coordinate System, Zone 5 (NAD-83). Multiply distances shown by 1.0000684 to obtain ground level distances. END OF DESCRIPTION This real property description has been prepared by me, or under my direction, in con\onmance with the Professional Land Surveyors Act. Signature Professional Land Surveyor Date ? t;\lVOA f'ROJECnL EGALS'tNewF'olderIParcelj_2 10-2002wpd Page 2 of 2 PARCEL K-2 Remainder LEGAL DESCRIPTION Property acquired from IVDA Page 3 of 11 In the City of San Bernardino, County of San Bernardino, State of California, being a portion of Lot 7, Block 48, Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacent to said block and lots, described as follows: COMMENCING at a 1" iron pipe with the City of San Bernardino tag marking the centerline intersection ofTippecanoe Avenue and Mill Street, per Record of Survey filed in Book 109, pages 6 and 7, inclusive, of Record of Survey of said County; thence, North 00025'01" West, along the centerline of said Tippecanoe Avenue a distance of 1,594.77 feet and the TRUE POINT OF BEGINNING; thence along said centerline, North 00025'01" West, 214.99 feel; thence at right angles to said centerline, North 89034'59" East, B6.14 feet, to the southwest corner of that parcel of land conveyed to the Smart Start Child Development Center, by Quitclaim Deed Number 20020165B1B, Recorded April 4, 2002, Records of said County also known as K-2, thence along south line of said parcel, North 89000'29" East, 431.00 feet, thence leaving said south line, South 00059'10" East, 214.96 feet to the easterly prolongation of the northerly line of that parcel of land conveyed to the Norton Credit Union, by Quitclaim Deed Number 19980168698, Recorded May 4,1998, Records of said County, also known as Parcel K-3; thence along said easterly prolongation of the northerly line of said parcel, South 89000'20" West, 433.14 feet to the easterly right of way line of Tippecanoe Avenue; . thence South 89034'59" West, 86.14 feet to centerline of Tippecanoe Avenue and the POINT OF BEGINNING. SUBJECT TO easements over Third Street and Del Rosa Drive for public utilities and right of way as they now exist. Bearings and Distances used in the above description are on the California Coordinate System, Zone 5 (NAD-B3). Multiply distances shown by 1.0000684 to obtain ground level distances. END OF DESCRIPTION Professiofli21 Land Surveyor Dale -~fv0/n )~ PARCEL K-4 LEGAL DESCRIPTION Property acquired from \VDA Page 4 of 11 In the City of San Bernardino, County of San Bernardino, Slate of California, being a portions of Lots 5 and 6, Block 48, Rancho San Bernardino, as per Map recorded in Book 7, Page 2, Records of said County, together with portions of vacated streets and alleys lying within and adjacent to said block and lots, described as follows: COMMENCING at a 1" iron pipe with the City of San Bernardino tag marking the centerline intersection ofTippecanoe Avenue and Mill Street, per Record of Survey filed in Book 109, pages 6 and 7, inclusive, of Record of Survey of said County; thence, North 00"25'01" West, along the centerline of said Tippecanoe Avenue a distance of 41.25 feet, to the westerly prolongation of the northerly right-of-way line of said Mill Street and the TRUE POINT OF BEGINNING; thence continuing along said centerline line, North 00'25'01" West, a distance of 786.66 feet, thence at right angles to said centerline, North 89"34'59" East, 86.14 feet to the easterly right of way line of Del Rosa Drive; thence, North 89000'20" East, a distance of 44t .76 feet, thence, South 00059'10" East, a distance of 388.72 feet, thence, North 89"00'52" East, a distance of 762.05 feet, to the west line of the San Bernardino International Airport Property; thence, South 00056'06" East, a distance of 411.52 feet, to the north right-of-way line of Mill Street; thence along said right-of-way line, South 89039'04" West, a distance of 1,2964fi feet. to the POINT OF BEGINNING. SUBJECT TO easements over Tippecanoe Avenue for public utilities and right of way as they now exist. Bearings and Distances used in the above description are grid, based on the California Coordinate System, Zone 5 (NAD-83). Divide distances shown by 0.99993157 to obtain ground level distances. END OF DESCRIPTION Dale :;:f':~'N"",' 7-- Signature _on ~ Property acquired from IVDA Page 5 of 11 EXHIBIT A A PORTION OF BLOCK 48 OF TIlE RANCHO SAN BERNARDINO PER PLAT RECORDED IN BOOK 7, PAGE 2 OF MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA. COMMENCING AT A I" IRON PIPE WITIl TIlE CITY OF SAN BERNARDINO TAG MARKING THE CENTERLINE INTERSECTION OF TIPPECANOE AVENUE AND MILL STREET. AS SHOWN ON RECORD OF SURVEY FU-ED IN BOOK 100, PAGE 76 TIlROUGH 81, INCLUSiVE, OF RECORD OF SUIl.VEYS OF SAID COUNTY; TIlBNCE NORTIl 0.25'00" WEST ALONG THE CENTERLINE OF SAlD TIPPECANOE AVENUE A DISTANCE OF 828.94 FEET: TIlENCE NORTH 89.35' EAST PERPENDICULAR TO THE CENTERLINE OF SAlD TIPPECANOE AVENUE A DISTANCE OF 86.24 FEET TO A POINT IN THE EASTERLY LINE OF SAID TIPPECANOE AVENUE, SAlD POiNT BEING THE SOUTHWEST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL, SAID POINT ALSO BEING TIlE TRUE POINT OF BEGINNING; THENCE NORTH 89"01 '26" EAST A DISTANCE OF 402.70 FEET TO THE SOU'ffiEAST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL, FROM WHICH A 2 1/2 "BRASS DISC STAMPED "USPS SE CORNER R.P .26.66' Jm" BEARS NORTH 89.01 '26" EAST 26.66 FEET: THENCE NORTH 0.59'10" WEST. ALONG THE WESTBRL Y LINE OF MEMORIAL DRIVE, A DISTANCE OF 509.17 FEET TO THE NORTIlEAST CORNER OF TIlE UNITED STATES FOREST SERVICE PARCEL FROM WHICH A 2 1/2 " BRASS DISC STAMPED "USFS NE CORNER RP. 26.67' 1999" BEARS NORTH 89.00'21" EAST, 26.67 FEET; THENCE SOUTH 89.00'21" WEST A DISTANCE OF 397.64 FEET TO TIlE NORTHWEST CORNER OF THE UNITED STATES FOREST SERVICE PARCEL FROM WHICH A CONCRETE NAn. AND TAG STAMPED "LS51 04" BEARS NORTH 89"00'21" EAST. 0.16 FEET; THENCE SOUTH 0"25'00" EAST ALONG THE EASTERLY LINE OF TIPPECANOE AVENUE A DISTANCE OF 509.07 FEET TO THE TRUE POINT OF BEGINNING, CONT AlNING 4.68 ACRES. END OF DESCRIPTION Formor Norton AFD. CA 13 P,,'ollH c2C:.l"ipUon; s.n Bern~rd.t.no.CA Document-Year.DocID 200S.!145877 p"9'e: 13 CJ~ 16 mer: l'JoU'y COJJlIOOnt: . - ~BlblLPARCELS- EXHIBIT "A" Legal Description Property acquired from IVDA Page 6 of 11 IVDAlSBlAA Land Transfer ParcelS Those portions of Parcels "A", "AI ", and "AS" as shown Record of Survey No. 97-0077 in the City of San Bernardino, County of Son Bernardino, State of California filed in Book 113, pages 15 through 22 of Records of Survey in the office of the County Recorder of said county together with a portion of Block 48 of the Rancho San Bernardino per map recorded in Book 7, Page 2 of Maps in the office of said County Recorder, described as follows; BEGINNING at the easterly terminus of that certain cowse shown has having a bearing of North 89000'52" East, 1257.97 feet in the north line of that certain parcel shown as Area "B-4" on Record of Survey No. 97-0077 filed in Book 113, pages IS through 22 of Records of SUlVey in the office of the County Recorder of said county; thence along the east line of said Area "B-4", South 0 1 009' 52" East, 237.43 feet to a line that is parallel with and 798.00 feet northwesterly of the centerline of the existing mnway as shown on Parcel" A" on said Record of Survey; thence along said parallel line, South 69059' 55" West, 1444.93 feet to a point on a curve in the northeasterly line ofParccl "AS" shown as being concave southwesterly, having a radius of 800.00 feet, a central angle of37"06'42", and an arc length of518.\8 feet on said Record of Survey, a radial line to said point bears North 41024 '10" East; thence along the boundary line of said Pareel "AS" the following courses: (I) Northwesterly 139.34 feet along said curve through a central angle of 09058'47"; (2) thence North 58034'37" West, 46.98 feet; (3) thence North 66015'21" West, 94.25 feet; (4) thence North 81029'50" West, 100.95 feet; (5) thence South 00035'31" East, 282.04 fcetto said parallel line; thence along said parallel line, South 69059'55" West, 908.\3 feet to the centerline of Tippecanoe Avenue as shown on said Record of Survey; thence along said centerline, North 00027' \1" West, 656.05 feet to the centerline of Mill Street (vacated) as shown on said Record of Survey; thence continuing alongtlJe centerline of said Tippecanoe Avenue, North 00025' 00" West, 41.25 feet to a line that i~patal]el with l!I1d 41.25 feet north of the centerline of said Mill Street; thC!lce along said parallel line, North $9039'04" East, 1296.46 feet to west line of said Area "B4"; Pa.ge I of2 Property acquired from IVOA Page 7 of 11 thence along said west line, North 00'56 '06" West, 437.52 feet to the northwest corner of said flJea "B-4"; thence along the north line of said Area "B-4", North 89'00'52" East, 1257.97 feet to the POTIvT OF BEGlNNTIVG. The above-described parcel o[[and contains approximately 25.74 acres The bearings and distances used in the above description are on tile California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 to obtain ground level distances. nus real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. Date Expires: 09-30c04 DA VID EVANS AND ASSOCIATES, INC. rage 2 of2 ;..,.. Property acquired from IVDA Page 8 of t 1 EXHIBIT" A" Legal Descriptinn IVDAJSBlAA Land Transfer Parcel 6 That portion of Block 48 of the Rancho San Bcrnardino in the City of San Bernardino, County of San Bernardino, State of California per map recorded in Book 7, Page 2 of Maps in the office of the County Recorder of said county, described as follows: BEGINNING at the northerly terminus of that certain course shown has having a bearing of North 01009' 52" West and a length of 1764.40 feet in the westerly line of that certain parcel identified as Area "B-3" on Record of Survey No. 97-0077 filed in Book 113, pages 15 through 22 of Records of Survey in the office of the County Recorder of said CO\U1ty; thence along the boundary of said Area "B-3" the following courses: (l) North 88050'08" East, 80.00 feet; (2) thence North 43055'23" East, 42.02 feet; thence continuing along said boundary and its easterly prolongation, North 89000'37" East, 178.63 feet; thence South 00056'41" East, 996.05 feet to a line that is parallel with and 70.00 feet northerly of that certain course shown has having a bearing of North 89003 '19" East, and a length of 902.72 feet in the boundary line ofParcel "IWL" on said Record of Survey No. 97-0077; thence along said parallel line, South 89003 '19" West, 52.69 feet to the northerly prolongation of that certain course shown as having a bearing of North 00056'41" West, and a length of 473.56 feet in the boundary line of Parcel "IWL" on said Record of Survey No. 97-0077; thence along said last mentioned certain course and its southerly prolongation, South 00056'4 I" East, 957.27 feet to a line that is parallel with and 798.00 feet northwesterly of the centerline of the existing runway as shown on Parcel "A" on said Record of Survey 97-0077; thence along said parallel line, South 69059'55" West, 241.12 feet to the southerly prolongation of said westerly line of Area "B-3"; thence atong said westerly line and its southerly prolongation, North 01009'52" West, 2001.83 feet to the P9INT OF BEGINNING. The above-described pared of land contains approximately 11.75 acres Page I of2 Property acquired from IVDA Page 9 of 11 The bearings and distances used in the abow description are on the California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 to obUlin ground level disUlnces. This real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. DA VID EVANS AND ASSOCIATES, INC. Page 2 (If 2 Property acquired from lVDA Page 10 of 11 EXIllBIT "A" Legal Description IVDAlSBIAA Land Transfer Parcel 9 That portion of Block 48 of the Rancho San Bernardino in the City of San Bernardino, COlffity of San Bernardino, State ofCalifomia per map recorded in Book 7, Page 2 of Maps in the office of the County Recorder of said county, described as follows: COMMENCING at the northerly terminus of that certain course shown has having a bearing of North 01009'52" West and a length of 1764.40 feet in the westerly line of that certain parcel identified as Area "B-3" on Record of Survey No. 97-0077 filed in Book 113, pages 15 through 22 of Records ofSlIIVey in the office of the County Recorder of said county; thence along the boundary of said Area "B-3" the following courses: (1) North 88050'08" East, 80.00 feet; (2) thence North 43055'23" East, 42.02 feet; thence continuing along said boundary and its easterly prolongation, North 89000'37" East, 178.63 feet; thence course "A", South 00056'41" East, 261.50 feet to the TRUE POINT OF BEGINNING; thence North 89'03' 19" East, 258.36 feet; thence South 00058'49" East, 273.63 feet; thence North 89003'] 9" East, 30.00 feet; thence South 00058'49" East, 260.92 feet; thence North 89003'19" East, 361.09 feet; thence South 00056'41" East, 200.00 feet to a line that is parallel with and 70.00 feet northerly of that certain course shown has having a bearing of North 89003 '19" East, and a length of 902.72 feet in the boundary line of Parcel "IWL" on said Record of Survey No. 97-0077; thence along said parallel line, South 89003' 19" West, 649.78 feet to the southerly prolongation of said cotUse uAn; thence northerly along said course "A" and its southerly prolongation, North 00056'41" West, 734.55 feet to the TRlJE POINT OF BEGINNING; Page 1 of2 Property acquired from lVDA Page 11 of 11 The above-described parcel of land ccntains approximately 6.34 acres The bearings and distances used in the above description are on the California Coordinate System of 1983, Zone 5. Multiply distances shown by 1.00006844 10 obtain ground level distances. lbis real property description has been prepared by me, or under my direction, in conformance with the Professional Land Surveyors Act. DAVID EVANS AND ASSOCIATES, INC. Page 2 of2 EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\local Settings\Temp\mlt2B.tmp 11 , 1 " . 0 ~ . . 0 , f " > . ! '" ., "" O~ i I z~ i ffiz :iU ~o f~ ~Ci !I~ I ~~ 0, ~ ~~ w' ~Ir 00 ~~ HI Om ~ ~~ i~~ z~ w ~~ a~ ~ i 0 " . " z. . ;:j ~ ;: I~ ~~ ~ I~ ~ ~ I ~- ~ c !g i '" "I > c 0 u !l! >- "'I . 'i ' ,I, i '" ",;8 '''' I 1:h~ I~ g ~ ~ d % . , " - ! % ~ i < n ~ ~ h I i Ii J; ! an " I ~ H ~ '0 '5" ~ ~ ei I ~ ~1i I! II · hli ! rill ! j P ! jl~l :lo..a~1! ~~1!S~.1i 8 ~ 10; ~>! UII~ <] , ~o ~.!! ~ !,], 8 ~ ::l~.. '8 .ll! "'1:'8'" ~ !3~j . ! 'I ! l-, , <, . . ~ ~- I I 00 ('I i ~, ~ : 'U 8 ~ '5 '0 ~[5 , I I , i , ! . w. b' o , . . ~ I ] ! " ! ~ , , . I ! I , . ! ! , . , :1 ~ d ~ I ( \ \ \ ) ::EN ~~ (90 <(Z -f- 00 1-0:: ztn WCi ::Ef- Cf)Z Cf)UJ wii5 Cf)CfJ Cf)UJ <(~ <{ CJ z ;:: It- \2u ~- t-'" ttl~ ",0 t-t- "'z OW z;> <'" W'" tLW <'" u'" ",< o z < ~ AVM +OUION (JH'U1 @ "'-r i @ @~< ,~ "~@~ o ~I , '@ lnPG\V lONY03ddll. , i < I > < 0 ~ (J) f- , w 3 'C: , cr: ~ <{ ~ 2' j (J) ~ 0 cr: ~ co j e cr: ; W f- . <{ f- ~ (J) ~ I ~~G @ 8 OVO~ VIG"I ]"<01. ."" ."'""';::; i ~~ ~ " Z !"'!!EB I EXHIBIT "B" 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 Area 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 water to 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. //1 //1 C:\Documents and Settings\carlyle\Local Settings\Temp\mltlB.tmp 12 EXHIBIT 8 MATICH PROPERTIES, LLC. Recording Requested By: ) ) City of San Bernardino ) 300 North "D" Street ) San Bernardino, CA 92418 ) ) ) When Recorded, Mail To: ) ) Mr. James F. Penman, Esq. ) Office of the City Attorney ) City Hall, Sixth Floor ) 300 North "D" Street ) San Bernardino, CA 92418 ) 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 (the "Maintenance Agreement") is dated as of _,2006, and evidences the agreement of Matich Properties, LLC, a California limited liability company (the "Property Owner"), as the owner of certain property within the boundaries of the City of San Bernardino Assessment District No.1 022 (referred to herein as either the "AD No. 1022" or the "Landscape District") which property that is the subject of this Agreement (the "Property"), is more fully described in Exhibit "A" attached hereto, and the City of San Bernardino, a municipal corporation and charter city of the State of California (the "City). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Pro pert v 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 ~., 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 illustrates the entire boundaries of the AD No. I 022 and includes therein a notation of the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by C:\Documents and Senings\carlyle\Local Scttings\Temp\m1t2B.tmp 1 the Property Owner (the "Property Owner 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 the City in the same manner as the City maintains landscaping within other landscape and streetlight maintenance assessment districts elsewhere within the City. (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 ifthe property owner has a minimum street frontage of 400 linear feet or a minimum area of2.25 acres or, if not, then only if agreed to in the sole and absolute discretion of the City Engineer (the term "City 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 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" as attached hereto, the AD No. I 022 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 ofthe formula contained within the Engineer's Report. The City agrees to forebear the collection of such assessments as to the Part II of said formula for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Agreement. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this 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 I, Part II 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 payor 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 initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the 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 Component"). 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 C:\Documents and Settings\carlyle\Local Settings\Temp\m1t2B.tmp 2 force and effect and for the further purposes of the collection ofthe assessment as may hereafter be ordered by the City under Section 4. 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 oflandscaping, 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.1 022 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 (I) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in Part III of the Engineer's report and the formation documents for the AD NO.1 022. Section 3. Termination Right by City Engineer. (a) In accordance with subsection (b) herein the City Engineer 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) and/or Exhibit "C" within the Property Owner Maintenance Areas or any portion thereof following at least thirty (30) days' prior written notice of the City Engineer to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subj ect 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 ("receipt of notice" is defined 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 C:\Documents and Scttings\carlyle\Local Settings\Tcmp\mlt2B.tmp 3 maintenance or the furnishing of services described in Section I(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. 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 ofthe 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 City Engineer at his sole discretion, the Property Owner shall only be permitted to have two (2) defaults determined by the City Engineer to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer, by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination ofthis Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 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: (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 party pursuant to or as required by C:\Documenls and Settings\carlyle\Local Settings\Tcmp\mltlB.tmp 4 this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property Owner: Matich Properties, LLC 1596 Harry Sheppard Boulevard San Bernardino, California 92408 Attn: Stephen A. Matich Facsimile: (909)382-0169 With copies to: Varner & Brandt LLP 3750 University Avenue, Suite 610 Riverside, California 92501 Attn: Bruce D. Varner, Esq. Facsimile: (951)274-7770 (b) Such written notices, demands and communications may be sent in the same manner to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender on the date set forth on such return receipt, on the day that it is dispatched by messenger for immediate personal delivery, the date sent by FAX and confirmed by First Class United States Mail or two (2) calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. 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. C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 5 Section 7. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of thirty (30) 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 2006/2007 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. On request from time to time ofthe Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence ofthis 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 ofthe Government Code. Violation ofthis 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 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 ofthe City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees" for the purposes ofthis Maintenance Agreement. Section 13. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. C:\Documents and Settings\carlyle\Local Settings\Tcmp\mltlB.tmp 6 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 attorney 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 Partv Beneficiary Rights. This Maintenance Agreement is entered into for the sole benefit of City and Property Owner and no other parties are intended to be direct or incidental beneficiaries of this Maintenance Agreement and no third party shall have any right in, under or to this Maintenance Agreement. Section 16. Headings. Paragraphs and subparagraph headings contained in this Maintenance Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Maintenance Agreement. Section 17. Construction. The parties have participated jointly in the negotiation and drafting of this Maintenance Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Maintenance Agreement, this Maintenance Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden of pro off avo ring 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 ofthe party against whom enforcement of a waiver is sought. The waiver of any right or remedy in respect to any occurrence or event shall not be deemed a waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. Section 19. Severabilitv. Every provision ofthis 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 ofthis 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. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. C:\Documents and Settings\carlyle\Local Settings\Temp\mIt2B.tmp 7 Section 21. Corporate Authoritv. 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 ofthe County Recorder of San Bernardino County, California, within ten days following the execution of this Maintenance Agreement. 11/ 11/ [Signatures Follow On Next Page] C:\Documcnts and Settings\carlyle\Local Settings\Temp\mltlB.tmp 8 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: Patrick J. Morris, Mayor Matich Properties, LLC, a California limited liability company By: SEAL ATTEST: By: Stephen A. Matich, Member Rachel Clark, City Clerk Approved as to Form: C:\Documents and Settings\carlyle\Local Settings\Temp\mlt2B.tmp 9 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY C:\Documcnts and Settings\carlylc\Local Scttings\Tcmp\m1t2B.tmp ] 0 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, BEING THOSE PORTIONS OF BLOCK 49 OF THE RANCHO SAN BERNARDINO, AS PER MAP RECORDED IN BOOK 7, PAGE 2, RECORDS OF SAID COUNTY, TOGETHER WITH PORTIONS OF V ACA TED STREETS AND ALLEYS LYING WITHIN AND ADJACENT TO SAID BLOCK AND LOTS, DESCRIBED AS FOLLOWS: PARCEL] OF PARCEL MAP 15986 AS RECORDED IN BOOK 198, PAGES 34 AND 35, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. THE ABOVE DESCRIBED PARCEL OF LAND CONTAINS 2.28 GROSS ACRES, MORE EXHIBIT "B" BOUNDARIES OF AD NO. 1022 AND SUBJECT PROPERTY C:\Documents and Settings\carlyle\Local Settings\Temp\mlt28.tmp 11 ~ .: 8 ~ '" ~IH n Ii ~~~2' I:' ,,~, g ~ ~jl~ :3~...~ ~u> I 8~!i ~8~~~! - [, .~; , , '., :!! ~ 'ii .~ IE . 'U ~ " i I' 11 f ~ ; ~ ~ i~ ~ ! . ~~I;; ~ Ii U i j ~~~" 15 '0 !' ljJ~ 11 I o~ '" ~~~~~ ~ I ~10 '5 IO~Bu-3..l! I t", .~ ~O<f)-1~ 10' I II ~!j~~~~J~ '2!1!.1 U !:~~ ~1 i!! ~E 5 ~~~~l~~o~~ . r . . . - ~ I ~~6 <( 0 ~ a: "": ~ <.90~ <( z ~ -I- . 000 - ~ I- 0:: ' I- 8 Z(J)g W5~ ~I-l (f)Z~ U)W~ W::2~ (J) ~ U) (J) 0 CJ)W~ <( (J) ~ (J) ~ <l: 1 ] , 1 . , ! , go i "" <, u Z , I . Z , i , " . , . u . " < u " z i= II- Qu -,- I-'" UJI- UJ'!2 ",0 1-1- WZ oUJ z" <W UJW a.UJ <W UW W< o Z :5 1 . " ' ~ , z. 0' z' ", ~ uu < ,;, U i I' , , H i ~~! .. - - I" 1I~1~~ u~ j.lll8 h':;;:l~ .: l j::lU '''56 I,} H i" ~l!~i I) ~]! 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I is SiS g ~ g z " . ~ . " I U~ ; ~ . () ~ ~ ~ ! . f- < < < z ~ ~ ~ . . ~ <( . . ~ ~ ~ ~ i ~ :;: f f f ~ I I 118 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 Area 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 water to 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. 1/1 1/1 C:\Documcnts and Scttings\carlyle\Local Settings\Temp\mlt2B.tmp 12 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Item # 2.1 t:r Vote: Ayes Nays Companion Resolutions ) Change to motion to amend original documents 0 NulIIVoid After: days / Resolution # On Attachments: 0 Abstain Resolution # dOD6 - d.-J 0 &--' Absent 't5--- PUBLISH 0 POST 0 RECORD W/COUNTY 0 Note on Resolution of attachment stored separately: 0 By: Date Sent to Mayor: '7?- 'c", Date of Mayor's Signature: 17 ot 1/ (Jb Date of Clerk/CDC Signature: ' 1/ cJ-7 i !J& , I Reso. Log Updated: ~ Seal Impressed: Reso. # on Staff Report l2IJ. Date Memo/Letter Sent for Signature: I" Reminder Letter Sent: Date Returned: 2nd Reminder Letter Sent: Not Returned: 0 Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585, L Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: Animal Control 0 EDA 0 City Administrator 0 Facilities 0 City Attorney 0" Finance 0 Code Compliance 0 Fire Department 0 Development ServIC8s. I ~ mav..{ Human Resources 0 Others: 0/ J\.PlY .L IJJ&\L- ~~QQ4.L ~fvf~C\-t~~ {~~~ ~.~ b~tbLt~ (-'8 Q lWtG\t'-t~d. ~'crdJ looJJ ~ pJrAJ1'iJ.Q~ 0~oml ~ rR Water Department 0 Notes: Ready to File: _ Date: Revised 12/18/03 CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: July 27, 2006 YOUR COPY TO: Henry Empeiio, Jr" Senior Deputy City Attorney FROM: Sandra Medina, Assistant to the City Clerk RE: Transmitting Documents - Resolution No. 2006-259 At the Mayor and Common Council meeting of July 24, 2006, the City of San Bernardino adopted Resolution No. 2006-259 - Resolution authorizing and directing the execution of various default assessment agreements relative to the proposed Assessment District No. i022 (San Bernardino international Airport/Alliance-California Landscape and Lighting Maintenance Assessment District). Attached are one (I) fully executed original Agreement of Property Owner and seven (7) partially executed original Agreements of Property Owner for City Imposed Landscape and Street Lighting Maintenance Assessment District No. 1022. All of these agreements need to be recorded with the County Recorder. As per your request, I am providing you with the agreements for your office to facilitate the recordings. Once recordings have been completed, please return the original documents to the City Clerk's Office for filing. If you have any questions, please do not hesitate to contact Dodie Otterbein at ext. 3215. Thank 2~lJi~dL~O-J Assistant to the City Clerk I hereby acknowledge receipt of the above mentioned documents. Signed: Date: Please sign and return