Loading...
HomeMy WebLinkAbout29-Development Services ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Public hearing—4:00 p.m., Resolution authorizing the execution of an Agreement, and Dept: Development Services Resolution Ordering Work relative to proposed Central Avenue and Lena Road Area Landscape Date: September 6, 2007 Maintenance Assessment District No. 1063 (Parcel Map No. 17721). File No. 14.40-159 MCC Date: October 1, 2007 Synopsis of Previous Council Action: 1/23/2007—Tentative Parcel Map No. 17721 was approved, with conditions. 08/06/07—Authorization was given to proceed with the formation of the Central Avenue and Lena Road Area Landscape Maintenance Assessment Districts No. 1063, and Resolution of Intention No. 2007-318 was adopted. Recommended Motion: 1. That the public hearing relative to the formation of the Central Avenue and Lena Road Area Landscape Maintenance Assessment Districts No. 1063 be closed. AND 2. Adopt resolutions (2) - (4/5 vote required for formation of LMD). kwzl'bw Valerie C. Ross Contact person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Maps, Reso. Ward: 1 $5,900(Processing fees paid by applicant) FUNDING REQUIREMENTS: Amount: $1,380.13 (Estimated annual General Benefit amount) Source: (Acct. No.) 254-000-2301-6059 Assessment District Deposits/ (Acct. Description) General Fund Finance: Council Notes: SD °�Od7r 7 Agenda Item No. °� g CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Public hearing — 4:00 p.m., Resolution authorizing the execution of an Agreement, and Resolution Ordering Work relative to proposed Central Avenue and Lena Road Area Landscape Maintenance Assessment District No. 1063 (Parcel Map No. 17721). BACKGROUND: On January 23, 2007, the Planning Commission approved Tentative Parcel Map No. 17721 and DP3 No. 06-06, generally located south of Central Avenue and east of an extension of Lena Road. On February 12, 2007, Hillwood Investment Properties, the developer/owner of this property, submitted a petition for the formation of a landscape maintenance assessment district, as required by the conditions of approval for the development of this site. The formation of this District will assess the special benefit costs of maintaining the landscaping and appurtenances to the owners of the properties benefiting from the maintenance area. The areas to be maintained by the District will be landscaping along portions of the easterly side of Lena Road, the southerly side of Central Avenue, the westerly side of Clevenger Road, and portions of the northerly side of Norman Road all adjacent to this site. Currently, the boundary of the district contains a total of 59 parcels of land, one of which is owned by the Water Department and will not be assessed. Initially the annual cost of maintenance and incidentals will be spread across 58 parcels. When Tentative Parcel Map No. 17721 is approved and recorded, there will be 2 large commercial parcels and two remnant smaller parcels, one of which is the Water Department parcel. Part of the formation proceedings includes the preparation of an Engineer's Report, which details the costs necessary to carry out the ongoing maintenance of landscaping and is filed in the City Clerk's office. As required by law, only special benefit may be assessed to properties within an assessment district. Any benefit found to be a general benefit may not be assessed to the District. As set forth in the Engineer's Report, the landscaping along Central Avenue has been deemed to be of a general benefit. The general benefit portion of the annual cost of maintenance is estimated to be $1,380.13 and cannot be assessed to the District. This amount will need to be paid from the general fund or other non- district fund source. As set forth in the Engineer's Report, the estimated total annual assessment, including all incidental expenses, is $65,236.05. Assessment units on commercial land are assigned to each parcel based on the number of 7,200 square foot single family lots that could be developed on the site if it were developed for residential use and gives a basis for calculating the assessment spread. In essence, each parcel is assessed in proportion of its size to the other parcels within the district. The per lot assessment will vary across each parcel but ranges from $90.82 to $21,544.12 per parcel. When the map records, the lot assessment for the 2 large parcels and the 1 remnant parcel will be recalculated. This is estimated to be as follows: Parcel 1 = $42,265.87, Parcel 2 = $22,850.43, and the remnant parcel = $119.75. The Engineer's Report allows for annual increases of CPI (Consumer Price Index) or 5%, whichever is less, to cover increases in maintenance costs. Increases over this amount will either need to be approved by the property owners within the District, or be paid for by the City. Staff Report— continued The developer/owner has requested this Landscape Maintenance Assessment District to be a "default" district, where the property owner will be maintaining the landscaping. The Assessment District will assume maintenance of the detention basin in the event of default of the maintenance by the Association. However, the City will collect the first year's maintenance cost, which will be held in reserve in the event that the City has to assume the maintenance. A resolution approving the execution of the Maintenance Agreement has been prepared and is attached for your action. On August 6, 2007, Resolution of Intention No. 2007-318 was adopted, setting a public hearing for October 1, 2007, and preliminarily approving the Engineer's Report. Notice of the hearing and assessment ballots were mailed to the owner of record. Since the developer still owns all of the parcels, a majority protest is not anticipated. Future property owners will purchase the parcels subject to the Assessment District and will be given disclosure of the District and assessments by the developer or subsequent property owners, as required by law. At the conclusion of the hearing, the results of the assessment ballots returned will be submitted. Ballots are weighted in proportion to the assessment amount. The formation of the district requires that the ballots returned in support for the proposed district exceed the ballots returned in opposition to the proposed district. A majority opposition to the formation of the district is not anticipated. All future buyers will be given a disclosure notice by the developer, advising them of the existence of an assessment district and the proposed annual cost. The Maintenance Agreement will need to be considered prior to the adoption of the resolution creating the Assessment District, which will require a four-fifths (4/5) affirmative vote of the council members voting thereon. FINANCIAL IMPACT: The applicant has paid the $5,900 processing fee. Estimated costs of annual maintenance in the amount of$65,236.05, deemed to be a special benefit, will be assessed back to property owners within the Assessment District. The estimated annual cost of maintenance in the amount of $1,380.13, deemed to be a general benefit, will need to be paid from the General Fund, for the landscape maintenance portion of the District. RECOMMENDATION: Staff recommends that the public hearing be closed and the attached resolutions be adopted. 0 m m h, 215 Ga QJ5 �� 18 i 0. 40th St. i i'r 330 d Q Marshall Blvd. — Z 210 Highland Ave. zss a m rn m Base Line St. w in 3: 9th St 5th St. 0 C Rialto Ave. °' ai Mill St. 0 Central Ave. 210 a Orange I how Rd. ao ` 0 V I LOCATION OF VICINITY MAP PROPOSED ASSESSMENT DISTRICT NO. 1063 NO SCALE CITY OF SAN BERNARDINO Proposed Landscape Maintenance DEVELOPMENT SERVICES DEPARTMENT Assessment District No. 1063 - g� REAL PROPERTY SECTION Central Avenue & Lena Road Area indicates un-incorporated areas within City's (Tentative Parcel Map 17721 ) Sphere of Influence Created by: Ryan Sandoval Date: 6/26/07 Q a 3z � �Z N W 0WZ a Z� > mul wpzz A~ �I a fWi1 " amtNE10 E� Z a E, Qp � oOE �£ CO� _I °vs u 4 O� W o m � a a f d A E" Ind � 2 {Z7 w oIF E g - om�'"' ° W W a U Q W� acm Imm Up mea W ° P 19 o o n II c o. 6 , c y. ,, w E d °c 8 d p� U O v and 2 . U u w` 2 o m (] �, D E o m c W ¢z H U m Elm D m m >5 05v m o ° o 'o u rn o tY m E zl �i £dU m YS wE �v ko°mc X'S c mm? zl w m $E° m o w m z m « °$° w m E n o o °w gu 2U mm° Ic U xU E >`o E @`° xU m E 3 D > ?� o- o QU Z, CL. m o y� L g �'v .. rc �n o U-0 IQ¢ CIVVtJ �(j�(y�J��e SNEER Q • C A✓l91 .At,Lfe X hFP �j _.. X13103, 4 j Q o V. j J © 30 F Z z. ftf OO Z N¢ O W " " J W II I - �——--7=73 t-----------r-- 3/1N3nV M3N .(3"l�Vil TNLL SIX 1 2 RESOLUTION NO. 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 4 SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE 5 PROPOSED ASSESSMENT DISTRICT NO. 1063 (CENTRAL AVENUE AND LENA ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT). 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 9 10 directed to execute on behalf of the City, a Landscape Maintenance Services Agreement, the form 11 of which is attached hereto as Exhibit "1"and made part hereof, relative to proposed Assessment 12 District No. 1063, known as the Central Avenue and Lena Road Area Landscape Assessment 13 District, as set forth in the Engineer's Report for said Assessment District, on File in the office of 14 the City Clerk. 15 SECTION 2. The owner(s) of property(ies) within the boundaries of said proposed 16 17 Assessment District No. 1063, as set forth on Exhibit"2", attached hereto and made a part hereof, 18 and are hereby approved to execute a Landscape Maintenance Services Agreement, and the City 19 Engineer, or his designee, is hereby authorized to accept said Agreement on behalf of the City of 20 San Bernardino. 21 SECTION 3. Authorization to execute the Landscape Maintenance Services Agreement 22 23 is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution. 24 25 26 27 28 l 09/04/07 1 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE 2 SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1063 (CENTRAL AVENUE AND LENA ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT 3 DISTRICT). 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof 6 held on the day of , 20 , by the following vote, to wit: 7 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 12 BRINKER 13 DERRY 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 City Clerk 20 The foregoing resolution is hereby approved this day of 120 21 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 25 Approved as to Form: 26 27 By: 28 JAMES F. PENMAN, City Attorney 09/04/07 2 Recording Requested By: City of San Bernardino 300 North"D" Street San Bernardino, CA 92418 When Recorded, Mail To: City of San Bernardino Real Property Section, 3`d Floor 300 North"D" Street EXHIBIT COPY San Bernardino, CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Central Avenue and Lena Road/Gateway South) THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of , 2007, and evidences the agreement of HSB 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. 1063 (the "Landscape District"),which property is the subject of this Maintenance Agreement(the"Pro e "), as more fully described in Exhibit "A" attached hereto, and (ii) the City of San Bernardino, a municipal corporation and charter city of the State of California(the "City"). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90 ("Municipal Code Chapter 12.90"), and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the Landscape District. Exhibit "B" as attached hereto reflects the boundaries of the Landscape District and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner(the "Pro e Owner Maintenance Areas"). The Landscape District includes no property other than the Property. Exhibit "1" 1 (b) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the maintenance standards as set forth in Exhibit"C"as attached hereto, the Landscape District shall be considered to be a"default assessment district"for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Maintenance Agreement. Notwithstanding the foregoing,the City shall not forbear the collection of the first year assessments for AD No. 1063, and the Property Owner shall pay the City the first year assessments for AD No. 1063,which the City shall collect and hold in reserve until such time as this Maintenance Agreement is terminated, at which time the City may apply such reserve to the costs of AD No. 1063. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Maintenance Agreement by the City,the City shall consider the Property Owner Maintenance Areas to be treated the same as any other property within the other landscape maintenance assessment districts in the City for which an annual assessment is collected by the City to pay for the landscape maintenance services performed by the City. Such assessment amount(to be reflected on the annual property tax bill) as may then be collected by the City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting from the default by the Property Owner under this Maintenance Agreement for the annual maintenance of the landscaping and administration and collection of assessments related to the Landscape District during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Such assessments (net of the 10% general benefit portion to be paid by the City) shall be allocated to the Property Owner as set forth in the Engineer's Report referenced in Section 1(c)below, including the allocation of the assessments solely between the two commercial parcels referenced in the Engineer's Report that will be created by Parcel Map No. 17721 (Parcel 1 and Parcel 2), when and if such Parcel Map is approved by the City and recorded. (c) The City Engineer or his/her designee, has prepared the Engineer's Report for Assessment District No. 1063 dated June 1, 2007, on file with the City Clerk as File No. 14.40-159 (the "Engineers' Report"). (d) Beginning with the second year assessments and during the remaining term of this Maintenance Agreement, the City shall not forbear the collection of, and Property Owner shall pay the City the annual assessments of AD No. 1063 attributable to the costs of Weekly Inspections, Annual Assessment Engineering, and Outside Department Services (collectively the "Administrative Costs"), which are described in the Engineer's Report and the formation documents for the Landscape District. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b) below for the maintenance and servicing of public landscaping improvements on the Property Owner Maintenance Areas situated within the Landscape District. 2 (b) At such time as this Maintenance Agreement no longer is in full force and effect, the special assessments as may thereafter be collected by the City each fiscal year shall be the costs incurred by the City for the following: (i) the maintenance and servicing by the City of any landscaping within the Property Owner Maintenance Areas. As used herein,the words"maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance of the landscaping, including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury,the removal of trimmings,rubbish,debris and other solid waste, including appurtenant contract administration, inspection and incidentals thereto, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this Maintenance Agreement. Section 3. Termination Right by City En ig neer. (a) City Engineer shall mean the City Engineer, or his/her designee. (b) In accordance with Section 3 (b)herein, the City shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) above and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior written notice from the City Engineer, or his/her designee, to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement(subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default(subject to prudent seasonal planting practices), the City(if such termination is first approved by the Major and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided) shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination 3 of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and Common Council at a duly held and noticed public meeting, wherein the Mayor and Common Council shall be presented with the facts and circumstances of any alleged default together with any recommendations for the termination of this Maintenance Agreement. It shall be sufficient for purposes hereof that the action of the Mayor and Common Council shall be to declare a default hereunder by the Property Owner, and upon the expiration of the applicable notice period without an adequate cure having been completed, no further official action shall be required by the Mayor and Common Council for such termination to be effective. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of the Landscape District to be a"default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance and seek collection of the annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. (c) The sole right of the Property Owner to contest any determination by the City for the termination of this Maintenance Agreement shall be to appear before the Mayor and Common Council at the public meeting at such time it is proposed for the Mayor and Common Council to take official action with respect to such termination. The Property Owner agrees not to file any court action or to seek any judicial relief from any such determination of the City to terminate this Maintenance Agreement or for any interpretation of this Maintenance Agreement. (d) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two defaults determined by the Mayor and Common Council pursuant to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer(if such termination is first approved by the Mayor and Common Council as provided above), by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. Section 4. Notices and Communications. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery,or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. 4 To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North"D" Street San Bernardino, California 92418 To Property c/o Hillwood Development Company, LLC Owner: 268 West Hospitality Lane, Suite 105 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 calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under Section 2,of this Maintenance Agreement, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property, and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of 30 years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. Section 7. First Year's Assessment. The 2008/2009 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts shown on Table 1 of the Engineer's Report. Section 8. City Confirmation. On request from time-to-time of the Property Owner,the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. 5 Section 9. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 10. Entire Agreement, Amendment and Termination. This Maintenance Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3 regarding termination. Section 11. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as"attorneys' fees" for the purposes of this Maintenance Agreement. Section 12. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 13. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including 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 14. 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. 6 Section 15. 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 16. 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 17. 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 18. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 19. 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 20. Authori . The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. Section 21. 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. 7 Section 22. 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 sixty(60)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 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 HSB LAND, L.P., a California limited partnership By: By:Hillwood Operating, L.P., FRED WILSON, City Manager a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, SEAL its general partner ATTEST: EXHIBIT COPY By: RACHEL CLARK, City Clerk John M. Magness Senior Vice President Approved as to Form: EXHIBIT COPY JAMES F. PENMAN, City Attorney 9 EXHIBIT "A" PROPERTY DESCRIPTION (See Attached) 10 EXHIBIT "B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained will be landscaping and all appurtenances along portions of the easterly side of Lena Road that abut the Property, the southerly side of Central Avenue that abut the Property, the westerly side of Clevenger Road that abut the Property, and portions of the northerly side of Norman Road that abut the Property, as further depicted on Exhibit B-1. 11 EXHIBIT B-1 0 z Q b a �O N 0 0 � Ow x zd Z oz m€9 � L QW � zz � ir Q m 0 8 522 lL� o � Z C m°u� Z Q O> U U� Ii1Z LL; E D � z ¢ 'F Cn LwU > `I LL t$I °o` I Q Z z U O Z. W z w ¢ $� W a Em� €�� ��8� R�o } � a FQ W 7 0 BNW�E°$ a c�mH°�'�o gE+�� _- Q ' E q� E a U Q Z O omm`Q�r�i d v� O v E g E E -.N 6 a, n c� E E U z o pg P p50 o f°a_ m _8io0 3 asi F Y O £d U U x 5 poQ C E L' c° S �_ lo z o U r E L c L)V £ Z m 9 W g U E m E W m 0 u Q C U ¢2 U >$ S U m E D z KU tyU £ m KU UU Q pay Z y QUQ m _ U �v .. ¢ =N C KU N F£m 0 Q n k � x S ® 0 © g 8 © W Q ® I 2 e O wl H o � 28 a a Ld 1x101�.111YC0 M N � f J z s O O C) > C) �nrv3nv�v.min i_»-i n �niu:ix?� EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping improvements located within the Property Owner Maintenance Areas identified in Exhibit "B" as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping improvements as required by this Maintenance Agreement in a condition, as reasonably determined by the City Engineer, or his authorized designee, consistent with the then current standards for landscape maintenance within other City landscape assessment districts on file in the office of the City Engineer. All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied, as applicable, pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. 13 ASSESSMENT DISTRICT No. 1063 PROPERTY OWNERS Assessment No. Parcel No. Owner 1 0280-152-10 HSB LAND, L.P. 2 0280-152-11 HSB LAND, L.P. 3 0280-152-12 HSB LAND, L P 4 0280-152-15 HSB LAND LP 5 0280-152-16 HSB LAND, L.P. 6 0280-152-17 HSB LAND, L.P. 7 0280-152-18 HSB LAND, L.P. 8 0280-152-19 HSB LAND, L.P. 9 0280-152-20 LISB LAND, L.P. 10 0280-152-21 HSB LAND, L.P. 11 0280-152-22 HSB LAND, L.P. 12 0280-181-01 HSB LAND, L.P. 13 0280-181-11 HSB LAND LP 14 0280-181-12 HSB LAND LP 15 0280-181-13 HSB LAND L P 16 0280-181-14 HSB LAND LP 17 0280-181-15 HSB LAND LP 18 0280-181-16 HSB LAND LP 19 0280-181-17 HSB LAND L P 20 0280-181-18 HSB LAND LP 21 0280-181-19 HSB LAND 22 0280-181-03 HSB LAND L P 23 0280-181-04 HSB LAND LP 24 0280-181-36 HSB LAND L, P 25 0280-181-37 HSB LAND LP ETAL 26 0280-181-42 HSB LAND L P 27 0280-181-43 HSB LAND L P 28 0280-181-08 HSB LAND L P 29 0280-181-09 HSB LAND LP 30 0280-181-30 HSB LAND LP 31 0280-181-31 HSB LAND L.P. 32 0280-181-32 HSB LAND L.P. 33 0280-181-23 HSB LAND LP 34 0280-181-06 HSB LAND, L.P. 35 0280-181-40 HSB LAND LP 36 0280-181-41 HSB LAND L.P. 37 0280-181-34 HSB LAND LP 38 0280-181-35 HSB LAND LP 39 0280-181-46 HSB LAND 40 0280-181-47 HSB LAND, L P 41 0280-181-28 HSB LAND LP 42 0280-181-39 HSB LAND LP 43 0280-181-21 HSB LAND LP 44 0280-191-01 HSB LAND LP Page 1 of 2 Exhibit "2" ASSESSMENT DISTRICT No. 1063 PROPERTY OWNERS Assessment No. Parcel No. Owner 45 0280-191-02 IISB LAND LP 46 0280-191-03 FISB LAND LP 47 0280-191-11 HSB LAND LP 48 0280-191-12 HSB LAND LP 49 0280-201-01 HSB LAND LP 50 0280-201-02 HSB LAND LP 51 0280-201-03 HSB LAND LP 52 0280-201-04 HSB LAND LP 53 0280-201-10 IISB LAND LP 54 0280-201-11 HSB LAND LP 55 0280-201-13 HSB LAND LP 56 0280-201-14 HSB LAND LP 57 0280-201-16 HSB LAND LP 58 0280-201-17 HSB LAND LP Page 2 of 2 1 2 RESOLUTION NO. 3 RESOLUTION OF THE CITY OF SAN BERNARDINO FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST, THAT 4 BALLOTS SUBMITTED IN FAVOR OF THE ASSESSMENT EXCEED THE BALLOTS 5 SUBMITTED IN OPPOSITION TO THE ASSESSMENT AND THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE THE MAINTENANCE OF 6 LANDSCAPING IN THE CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S REPORT, CREATING AN ASSESSMENT DISTRICT TO 7 COVER THE COSTS OF SAID MAINTENANCE,KNOWN AS ASSESSMENT DISTRICT 8 NO. 1063, ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL, AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, 9 LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 10 WHEREAS, pursuant to Chapter 12.90 of the San Bernardino Municipal Code, the Mayor 11 and Common Council of the City of San Bernardino have preliminarily found that the public 12 13 interest, convenience, and necessity require the maintenance of landscaping in a portion of the City, 14 as more fully hereinafter described, and the appurtenances and appurtenant work and incidental 15 costs and expenses in connection therewith, that the project is feasible, and that the lands to be 16 assessed will be able to carry the burden of the proposed assessments to pay the costs and expenses 17 thereof; and 18 WHEREAS, on August 6, 2007, the Mayor and Common Council of the City of San 19 20 Bernardino preliminarily approved the Engineer's Report relative to the formation of Assessment 21 District No. 1063, which is on file in the office of the City Clerk, and adopted Resolution No. 22 2007-318 entitled: 23 "RESOLUTION OF THE CITY OF SAN BERNARDINO PRELIMINARILY 24 DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE THE FORMATION OF A LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT 25 LOCATED IN THE CENTRAL AVENUE AND LENA ROAD AREA WITHOUT COMPLIANCE WITH THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION 26 AND MAJORITY PROTEST ACT OF 1931; DECLARING ITS INTENTION TO 27 PROCEED TO ORDER WORK WITHIN THE DISTRICT, TO BE KNOWN AS ASSESSMENT DISTRICT NO. 1063; PRELIMINARILY APPROVING THE 28 ENGINEER'S REPORT AND GIVING NOTICE OF A PUBLIC HEARING." 09/04/07 1 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, 3 CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL 4 NOT APPLY. 5 which said resolution duly and legally was published and notice given of a Public Hearing in the 6 manner required by law, and pursuant to Section 4 of Article XIIID of the California Constitution, 7 all property owners given notice were also given an Assessment Ballot to indicate support or 8 9 opposition to the proposed assessment, and written objections and protests, if any, to the formation 10 of the proposed district, the work to be done or the extent of the district to be assessed were heard I 11 and considered; and 12 WHEREAS, a Diagram of the Assessment District has been prepared and is on file in the 13 office of the City Clerk; and 14 WHEREAS,an Assessment Roll has been prepared totaling $65,236.05,which sets forth 15 16 the individual assessments to be levied on each of the parcels of land within Assessment District 17 No. 1063, for the fiscal year 2008-2009, as set forth in the Engineer's Report, as now submitted, 18 on file in the office of the City Clerk. 19 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 20 OF SAN BERNARDINO AS FOLLOWS: 21 SECTION 1. That a Public Hearing having been held on October 1, 2007, the Mayor and 22 Common Council, having heard and considered any and all comments received thereon and being 23 fully advised in the premises, hereby determine that any and all protests received represent less than 24 a Majority Protest, as represented by the assessment units assessable on the properties represented 25 26 by said protests. 27 SECTION 2. That ballots having been received and considered, it is hereby determined 28 that the ballots submitted in favor of the assessment exceed the ballots submitted in opposition to 09/04/07 2 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST... CENTRAL AVENUE AND LENA ROAD AREA, APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, 3 CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL 4 NOT APPLY. 5 the assessment. 6 SECTION 3. That it is hereby determined that all properties, parcels and lots within the 7 boundaries of the Assessment District receive a local and direct benefit for the works of 8 9 improvement as proposed for said Assessment District, except for portions determined to be of a 10 general benefit as set forth in said Engineer's Report, and it is hereby further determined and 11 declared that all assessable costs and expenses have been apportioned and spread over the 12 properties within the boundaries of the Assessment District in direct proportion to the benefits 13 received thereby. 14 15 SECTION 4. That the public convenience and necessity require the proposed maintenance 16 and the Mayor and Common Council hereby order, by an affirmative vote of not less than 4/5ths 17 of its members present and voting, the formation of Assessment District No. 1063, along with the 18 work and appurtenances described in said Resolution No. 2007-318 and said Engineer's Report as 19 herein approved and that the Special Assessment Investigation, Limitation and Majority Protest Act 20 of 1931 shall not apply. PP Y• 21 22 SECTION 5. That the Engineer's Report relative to the formation of Assessment District 23 No. 1063 as now submitted, together with a Diagram of the Assessment District, both on file in the 24 office of the City Clerk, are hereby accepted and approved and that said Engineer's Report shall 25 stand as the Report for all future proceedings for this Assessment District. 26 SECTION 6. That the Mayor and Common Council do hereby find and determine that the 27 28 proportionate costs to be levied against the parcels of land within Assessment District No. 1063 09/04/07 3 r 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, 3 CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL 4 NOT APPLY. 5 are correctly set forth on Assessment Roll No. 1063 for the fiscal year 2008-2009, as set forth in 6 said Engineer's Report, as now approved, and on file in the office of the City Clerk of the City of 7 San Bernardino, and do hereby confirm said assessments. 8 9 SECTION 7. The City Clerk is hereby directed and authorized to publish a Notice Inviting 10 Bids for performing the work ordered, in the San Bernardino County Sun, a newspaper published 11 and circulated in said City, according to the specifications prepared or as will be prepared by the 12 City Engineer and on file or to be filed in the office of the City Engineer, at such time when the 13 installation of the landscaping and appurtenances has been accepted by the City. The contract will 14 be awarded pursuant to standards used by the City in the award of Public Works contracts. 15 16 SECTION 8. It is hereby determined that the formation of the assessment district is 17 categorically exempt from the requirements of the California Environmental Quality Act(CEQA), 18 pursuant to Class 1, Section 15301(c). 19 SECTION 9. Reference hereby is made to said Resolution No. 2007-318 and said 20 Engineer's Report for a description of the work, the extent of the assessment district, the financing 21 22 alternatives and for further particulars. 23 SECTION 10. That the City Clerk is directed to cause a copy of this Resolution to be 24 transmitted to the office of the Auditor-Controller for the County of San Bernardino with the 25 request that the individual assessments as shown on Assessment Roll No. 1063 be placed on the 26 subject 2008-2009 property tax bills for collection together with all other property taxes. 27 28 09/04/07 4 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, 3 CONFIRMING THE 2008-2009 ASSESSMENT ROLL, AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL 4 NOT APPLY. 5 6 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 7 Common Council of the City of San Bernardino at a meeting thereof held on 8 the day of , 20 , by the following vote, to-wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 BAXTER 12 13 BRINKER _ 14 DERRY 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 20 City Clerk 21 The foregoing resolution is hereby approved this day of --' 20 22 23 — PATRICK J. MORRIS, Mayor 24 City of San Bernardino 25 Approved as to form: 26 27 JAMES F. PENMAN, City Attorney 28 09/04/07 5 COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE 4 PROPOSED ASSESSMENT DISTRICT NO. 1063 (CENTRAL AVENUE AND LENA 5 ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT). 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 9 directed to execute on behalf of the City, a Landscape Maintenance Services Agreement,the form 10 of which is attached hereto as Exhibit "1" and made part hereof, relative to proposed Assessment 11 District No. 1063, known as the Central Avenue and Lena Road Area Landscape Assessment 12 District, as set forth in the Engineer's Report for said Assessment District, on file in the office of 13 " the City Clerk. 14 15 SECTION 2. Authorization to execute the Landscape Maintenance Services Agreement 16 is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution. 17 18 19 20 21 22 23 24 25 26 27 28 10/12/07 1 a9 A RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO 1 AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1063 2 (CENTRAL AVENUE AND LENA ROAD AREA LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT). 3 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 Common Council of the City of San Bernardino at a meeting thereof 6 held on the day of 20 , by the following vote, to wit: 7 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 BRINKER 12 13 DERRY 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 City Clerk 20 The foregoing resolution is hereby approved this day of , 20 21 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 Approved as to Form: 25 26 s 27 By: rJ JAMES F. PENMAN, City Attorney 28 i 10/12/07 2 ` Recording Requested By: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 When Recorded, Mail To: City of San Bernardino Real Property Section, 3`d Floor 300 North "D" Street E San Bernardino, CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Central Avenue and Lena Road/Gateway South) THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of , 2007, and evidences the agreement of HSB 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. 1063 (the "Landscape District"),which property is the subject of this Maintenance Agreement(the"Pro e "), as more fully described in Exhibit "A" attached hereto, and (ii) the City of San Bernardino, a municipal corporation and charter city of the State of California (the THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90 ("Municipal Code Chapter 12.90"), and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the Landscape District. Exhibit "B" as attached hereto reflects the boundaries of the Landscape District and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner(the "Pro e Owner Maintenance Areas"). The Landscape District includes no property other than the Property. Exhibit "1" 1 (b) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the maintenance standards as set forth in Exhibit "C" as attached hereto, the Landscape District shall be considered to be a"default assessment district" for which the i City shall forebear the collection of assessments for the Property Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Maintenance Agreement. Notwithstanding the foregoing, the City shall not forbear the collection of the first year assessments for Assessment District No. 1063,and the Property Owner shall pay the City the first year assessments for Assessment District No. 1063, which the City shall collect and hold in reserve until such time as this Maintenance Agreement is terminated, at which time the City may apply such reserve to the costs of Assessment District No. 1063. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Maintenance Agreement by the City, the City shall consider the Property Owner Maintenance Areas to be treated the same as any other property within the other landscape maintenance assessment districts in the City for which an annual assessment is collected by the City to pay for the landscape maintenance services performed by the City. Such assessment amount(to be reflected on the annual property tax bill) as may then be collected by the City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting from the default by the Property Owner under this Maintenance Agreement for the annual maintenance of the landscaping and administration and collection of assessments related to the Landscape District during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Such assessments (net of the 10% general benefit portion to be paid by the City) shall be allocated to the Property Owner as set forth in the Engineer's Report referenced in Section 1(c) below, including the allocation of the assessments solely between the two commercial parcels referenced in the Engineer's Report that will be created by Parcel Map No. 17721 (Parcel 1 and Parcel 2), when and if such Parcel Map is approved by the City and recorded. (c) The City Engineer or his/her designee, has prepared the Engineer's Report for Assessment District No. 1063 dated June 1. 2007, on file with the City Clerk as File No. 14.40-159 (the "Engineers' Report"). (d) Beginning with the second year assessments and during the remaining term of this Maintenance Agreement, the City shall not forbear the collection of, and Property Owner shall pay the City the annual assessments of Assessment District No. 1063 attributable to the costs of Weekly Inspections, Annual Assessment Engineering, and Outside Department Services (collectively the "Administrative Costs"), which are described in the Engineer's Report and the formation documents for the Landscape District. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below for the maintenance and servicing of public landscaping improvements on the Property Owner Maintenance Areas situated within the Landscape District. (b) At such time as this Maintenance Agreement no longer is in full force and effect, the special assessments as may thereafter be collected by the City each fiscal year shall be the costs incurred by the City for the following: (i) the maintenance and servicing by the City of any landscaping and sand filtration units within the Property Owner Maintenance Areas. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance of the landscaping and sand filtration units, including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste, including appurtenant contract administration, inspection and incidentals thereto, and including the maintenance standards for the sand filtration units, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this Maintenance Agreement. Section 3. Termination Right by City Engineer. (a) City Engineer shall mean the City Engineer, or his/her designee. (b) In accordance with Section 3 (b)herein,the City shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) above and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior written notice from the City Engineer, or his/her designee, to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default(subject to prudent seasonal planting practices), the City(if such termination is first approved by the Major and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided) shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) and/or Exhibit"C" within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with 3 diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and Common Council at a duly held and noticed public meeting, wherein the Mayor and Common Council shall be presented with the facts and circumstances of any alleged default together with any recommendations for the termination of this Maintenance Agreement. It shall be sufficient for purposes hereof that the action of the Mayor and Common Council shall be to declare a default hereunder by the Property Owner, and upon the expiration of the applicable notice period without an adequate cure having been completed, no further official action shall be required by the Mayor and Common Council for such termination to be effective. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of the Landscape District to be a"default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance and seek collection of the annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. ' (c) The sole right of the Property Owner to contest any determination by the City for the termination of this Maintenance Agreement shall be to appear before the Mayor and Common Council at the public meeting at such time it is proposed for the Mayor and Common Council to take official action with respect to such termination. The Property Owner agrees not to file any court action or to seek any judicial relief from any such determination of the City to terminate this Maintenance Agreement or for any interpretation of this Maintenance Agreement. (d) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two defaults determined by the Mayor and Common Council pursuant to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer(if such termination is first approved by the Mayor and Common Council as provided above), by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 4 Section 4. Notices and Communications. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property c/o Hillwood Development Company, LLC Owner: 268 West Hospitality Lane, Suite 105 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 calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under Section 2 of this Maintenance Agreement, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property, and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of 30 years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. 5 Section 7. First Year's Assessment. The 2008/2009 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts shown on Table 1 of the Engineer's Report. Section 8. City Confirmation. On request from time-to-time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 9. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 10. Entire Agreement, Amendment and Termination. This Maintenance Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3 regarding termination. Section 11. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as"attorneys' fees" for the purposes of this Maintenance Agreement. Section 12. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 13. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including 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 S or omissions of Property Owner, its employees, agents or subcontractors in the performance of this Maintenance Agreement. Section 14. Insurance (a) Minimum Scope and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (1) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits,per occurrence and aggregate. (ii) Automobile liability for owned vehicles, hired, and non-owned vehicles,with a policy limit of not less than One Million Dollars($1,000,000.00), combined single limits, per occurrence and aggregate. (iii) Workers' compensation insurance as required by the State of California. (b) Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (i) Additional insured: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insured with I respect to Property Owner's performance under this Agreement with City." I (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty(30) days after written notice is given to City." (iii) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." (c) Certificates of Insurance. Property Owner shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. (d) Non-limiting. Nothing in this Section shall be construed as limiting in any way, any indemnification provision contained in this Agreement, or the extent to which Property Owner may be held responsible for payments of damages to persons or property. 7 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. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason, then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Authori . The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. 8 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 sixty (60) days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE 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 HSB LAND, L.P., a California limited partnership . II COPS By: By:Hillwood Operating, L.P., FRED WILSON, City Manager a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, SEAL its general partner ATTEST: X1 .1 By. RACHEL CLARK, City Clerk John M. Magness Senior Vice President Approved as to Form: EXKIRIT JAMES F. PENMAN, City Attorney 10 Consent of Lender WELLS FARGO BANK, NATIONAL ASSOCIATION ("Agent"), hereby consents to and subordinates that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated July 20, 2005, and recorded on August 2, 2005 as Document No.2005-0558862, as modified by document recorded on January 31, 2006 as Document No. 2006- 0069269 in the Official Records of San Bernardino County, California, to this Maintenance Agreement. WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions identified in an Intercreditor Agreement executed by Agent and such Lenders By: EXHIBIT 001 LP VIL J. Kent Howard Senior Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: J. Kent Howard Senior Vice President STATE OF TEXAS § § ss. COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on , 2007, by J. Kent Howard,the Senior Vice President of Wells Fargo Bank,National Association, a national banking association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions (collectively, "Lenders") identified in an Intercreditor Agreement executed by Agent and such Lenders. [SEAL] My Commission Expires: Notary Public, State of Texas Printed Name of Notary Public 11 EXHIBIT "A" PROPERTY DESCRIPTION (See Attached) 12 SHEET 1 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY LOTS 10 THROUGH 20 INCLUSIVE, AND A PORTION OF LOT 9 OF TRACT NO. 2228, VALLEY TRUCK FARMS NO. 4, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE 95 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH PORTIONS OF LOTS 1 THROUGH 11 INCLUSIVE, OF TRACT NO. 2980, PETER HELD'S SUBDIVISION, AS PER MAP RECORDED IN BOOK 40, PAGE 50 OF MAPS,AND PORTIONS OF LOTS 11 AND 12, BLOCK 12 OF THE SAN BERNARDINO RANCHO, AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, BOTH IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE CENTERLINE OF CENTRAL AVENUE, DISTANT THEREON NORTH 890 43'27"EAST, 109.12 FEET FROM THE CENTERLINE OF VALLEY VIEW AVENUE, AS SHOWN ON SAID TRACT NO. 2980; THENCE SOUTH 000 28' 38" WEST 30.33 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 900.00 FEET, THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 00 52' 12"AN ARC LENGTH OF 13.67 FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 22, 1964 IN BOOK 6256, PAGE 928, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID SOUTHERLY LINE BEING PARALLEL WITH AND 44.00 FEET SOUTHERLY OF SAID CENTERLINE OF CENTRAL AVENUE; THENCE ALONG SAID SOUTHERLY LINE, NORTH 890 43' 27" EAST, 68.12 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 450 57' 37" WEST, 34.17 FEET TO THE BEGINNING OF A NON- TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 944.00 FEET AND BEING CONCENTRIC WITH SAID 900.00 FEET RADIUS CURVE,A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS SOUTH 880 12' 13"EAST,' THENCE SOUTHERLY ALONG SAID NON-TANGENT CURVE, THROUGH A CENTRAL ANGLE OF 100 55'04"AN ARC LENGTH OF 179.88 FEET; THENCE SOUTH 120 42' 51" WEST, 96.41 FEET, THENCE SOUTH 45017'09"EAST, 5.31 FEET, THENCE SOUTH 120 42'51-WEST, 26.51 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 851.50 FEET; THENCE SOUTHERLYALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 57'46"AN ARC LENGTH OF 29.17 FEET- THENCE SOUTH 680 45'05"WEST, 5.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 856.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 790 26' 12"EAST; THENCE SOUTHERLY ALONG SAID 856.00 RADIUS CURVE, THROUGH A CENTRAL ANGLE OF 110 02,041,AN ARC LENGTH OF 164.85 FEET,- THENCE TANGENT TO SAID CURVE, SOUTH 000 28,16" EAST, 86.26 FEET,• THENCE SOUTH 580 28' 16-EAST, 5.31 FEET,• THENCE SOUTH 000 28' 16" EAST, 55.48 FEET; THENCE SOUTH 570 31' 44" WEST, 5.31 FEET; THENCE SOUTH 000 28' 16" EAST, 325.93 FEET,• THENCE SOUTH 5°28, 16" EAST, 5.71 FEET; THENCE SOUTH 000 28'16"EAST, 57.70 FEET,• THENCE SOUTH 510 31'44"WEST, 5.71 FEET; THENCE SOUTH 000 28' 16" EAST, 33.05 FEET TO THE SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980; THENCE ALONG SAID SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980 AND THE SOUTHERLY LINE OF SAID LOT 11, BLOCK 55 OF RANCHO SAN BERNARDINO, NORTH 890 50' 45" EAST, 829.87 FEET TO THE NORTHWEST CORNER OF SAID LOT 20; THENCE ALONG THE BOUNDARY OF SAID LOTS 10 THROUGH 20 OF TRACT NO. 2228, SOUTH 000 36'15"EAST, 505.43 FEET, SHEET 2 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY NORTH 890 53' 27" EAST, 78.13 FEET, NORTH 860 44' 54" EAST, 1022.61 FEET AND NORTH 00° 33' 48" WEST, 50.06 FEET TO A LINE PARALLEL WITH AND 50.00 FEET NORTHERLY, MEASURED AT RIGHT ANGLES, FROM THE MOST SOUTHERLY LINE OF SAID LOT 9; THENCE ALONG SAID PARALLEL LINE AND ITS EASTERLY PROLONGATION, NORTH 860 44' 54"EAST, 39.89 FEET TO THE WESTERLY LINE OF CLEVENGER DRIVE (60.00 FEET WIDE) AS PRESENTLY EXISTS AT THE DATE OF RECORDATION OF THIS DOCUMENT THENCE ALONG SAID WESTERLY LINE THE FOLLOWING TWO (2) COURSES: 1) NORTH 001 32' 19" WEST, 35.14 FEET TO THE . BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET, 2) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 000 52' 08"AN ARC LENGTH OF 14.71 FEET, THENCE NORTH 360 47' 07" WEST, 7.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 965.50 FEET AND BEING CONCENTRIC WITH SAID 970.00 FEET RADIUS CURVE,A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 88° 12'53"EAST; THENCE NORTHERLY ALONG SAID 965.50 FEET CURVE, THROUGH A CENTRAL ANGLE OF 40 22' 54"AN ARC LENGTH OF 73.83 FEET,• THENCE NORTH 280 49'59"EAST, 7.81 FEET TO SAID WESTERLY LINE, BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS, NORTH 830 27' 19" EAST- THENCE ALONG SAID WESTERLY LINE THE FOLLOWING FOUR (4) COURSES: 1) NORTHERLY ALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 02' 12"AN ARC LENGTH OF 17.55 FEET;2) TANGENT TO SAID CURVE, NORTH 07°34'53" WEST, 79.60 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 1030.00 FEET,• 3) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 60 51' 20" AN ARC LENGTH OF 123.24 FEET; 4) NORTH 00° 43' 33" WEST, 42.20 FEET TO THE INTERSECTION OF A LINE PARALLEL WITH AND 30.00 FEET WESTERLY, MEASURED AT RIGHT ANGLES, FROM THE WESTERLY LINE OF LOT 13, BLOCK 55 OF SAID RANCHO SAN BERNARDINO, AS SHOWN ON TRACT NO. 2896, AS PER MAP RECORDED IN BOOK 40, PAGES 47 AND 48 OF MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32' 15"WEST, 111.58 FEET; THENCE NORTH 45° 12'29-WEST, 6.40 FEET,• THENCE NORTH 000 32' 15"WEST, 60.66 FEET,• THENCE NORTH 44° 07' 59" EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, THENCE, NORTH 000 32' 15" WEST, 355.24 FEET; THENCE NORTH 450 12' 29" WEST, 6.40 FEET; THENCE NORTH 000 32' 15" WEST, 60.67 FEET,• THENCE NORTH 440 07'59"EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32, 15" WEST, 245.13 FEET TO THE SOUTH LINE OF THE NORTH 246.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID SOUTH LINE, SOUTH 890 43'27"WEST, 90.00 FEET TO THE WEST LINE OF THE EAST 120.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID WEST LINE, NORTH 000 32' 15" WEST, 60.00 FEET TO THE SOUTH LINE OF THE NORTH 186.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO, THENCE ALONG SAID SOUTH LINE OF THE NORTH 186.00 FEET, NORTH 890 43' 27" EAST, 90.00 FEET TO SAID PARALLEL LINE OF LOT 13, ALSO BEING THE WESTERLY LINE OF PARCEL NO. 2 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 30, 1964 IN BOOK 6262, PAGE 458, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG THE BOUNDARY OF LAST SAID GRANT OF EASEMENT THE FOLLOWING TWO(2) - SHEET 3 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY COURSES: 1) NORTH 000 32' 15" WEST, 163.34 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 20.00 FEET; 2) NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 890 44'18"AN ARC LENGTH OF 31.32 FEET TO THE SOUTH LINE OF PARCEL NO. 1 OF LAST SAID GRANT OF EASEMENT; THENCE TANGENT TO SAID CURVE ALONG SAID SOUTH LINE OF PARCEL NO. 1 AND ITS WESTERLY PROLONGATION, SOUTH 890 43' 27" WEST, 318.42 FEET,• THENCE SOUTH 420 43' 27" WEST, 6.15 FEET, THENCE SOUTH 890 43'27" WEST, 49.97 FEET,• THENCE NORTH 430 16'33- WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43'27" WEST, 564.04 FEET; THENCE SOUTH 520 13'27" WEST, 7.39 FEET; THENCE SOUTH 890 43'27"WEST, 71.45 FEET, THENCE NORTH 520 46'33"WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 89°43'27-WEST, 148.42 FEET,• THENCE SOUTH 520 13'27"WEST, 7.39 FEET,• THENCE SOUTH 890 43'27"WEST, 80.74 FEET, THENCE NORTH 520 46'33" WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION, THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43' 27" WEST, 238.86 FEET; THENCE SOUTH 420 43'27"WEST, 6.15 FEET; THENCE SOUTH 890 43,271,WEST, 49.97 FEET THENCE NORTH 430 16' 33" WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43' 27"WEST, 261.45 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING:2,634,738 SQUARE FEET OR 60.485 ACRES MORE OR LESS. EXHIBIT`B"ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION. DATE: N1 LAND J. D. ELLZEY 1 P.L.S. No. 2767 ���� �• E�C�F��` REG. EXP. 06130108 p �c CL N0. 2767 * N:25571ESMT12557 LMD.doc EXP. 06/30/08 Q' Last Update:10112107 SCALE:1"=300' EXH/B/T 'YA —/ P.O.C.SHEET 1 OF 2 THE PROPERTY T 1 T2 T.P.O.B. v NOM T5 __ T61 4-- SEE SHEET 2 OF 2 FOR (RAD) 44 T4 CURVE AND TANGENT TABLES. I Z Q i DETAIL: U I Q P.O.C. � c., T.P.O.B. CENTRAL A VE. oI T1 cpo� -v It (D C10 - -- -'--- - T6 T57 T53 T49 T45 (RA D-) 6 1 1 d co "� I ti T59 T55 T51 T47 lV o 1 0 l I T43 00 4 -'� I I i T41 N �\ T8 BLOCK 55 RANCHO SAN I BERNARDINO ~ Q, O T10 C4 LOT 4 I p U ' - =T 9_ �RAD1 I ~ 30' 44F CS_ Lo T 5� T 1 1- (RAD) I cO T39 LOT 6 o I ~ w T12 T37— � LOT 1 1 LOT 12 a' u- d T 15 :- LOT 7 W ,, 1 I W > — — V' ` LOT 8 — L r w LOT 9 N z I I M.B. 7 / 2 V 44' — — T35 J LOT 10 Z � I M T 1 00 — — ri I F— T33 w T 1 LOT 1 1 N I T32 °j w T20 N 89'50'45" E 829.87' — r -1� � — T- � T -r — � �— o ui ,IL INI w TRACT NO. 2223, VALLEY TRUCK FARMS NO, 14, /i.S. p1 951 C9 i c i U i I I i I ICI ° I ° i ° ISI T30 FN N I °' I `° I I `° I 1 0 I T29 _BRAD)---i------ " T28 I � � I � i � I � -- 7 " C7 0 0 1 0 0 0 0 1 ------- ------ T26 T27 (RAD) I T24 C6 ° T22 I I I 1 1 T23 _ - - — � — _ ' 02N 5 ' T25 AREA: NORMAN ROAD CONTAINS. 2,634,7,38 SO FT f SURVEYOR: 60.485 ACRES f PREPARED UNDER THE SUPERVISION OF.• Thienes Engineering, Inc. No. 2767 �b ��2 07 EXP. 06 CML ENGINEERING•LAND SURVE)'lNG /30/08 14349 FIRESTONE BOULEVARD U D. EL Z Y DATE ��9 LA M/RADA, G4UFORNIA 90638 P.L.S. NO. 2767 lF O� "` ``` PH.(714)521-4811 FMX714)521-417J REG. EXP. JUNE 30 OF CAL, 2008 \� EXHIBIT 'A '-1 SHEET 2 OF 2 THE PROPERTY TANGENT TABLE: TANGENT TABLE: NUMBER DISTANCE BEARING NUMBER DISTANCE BEARING T1 109.12' N 89'4327" E T35 6.40' N 44'0759" E T2 30.33' N 00'2838" W T36 355.24' N 00'32'15" W Ti 68. 12' N 89'43 27" E T37 6.40' N 45'12 29" W T4 34.17' N 45'5737" E T38 60.67' N 00'32'15" W T5 944.00' N 88'12'13" W T39 6.40' N 44'0759" E T6 96.4 1' N 12'42'51" E T40 245. 13' N 00'32'15" W T7 5.31' N 45'17'09" W T41 90.00' N 89'43 27" E T8 26.5 1' N 12'42 51" E T42 60.00' N 00'32'15" W T9 851.50' N 77'17'09" W T43 90.00' N 89'43 27" E T 10 5.30, N 68'45'05" E T44 163.J4' N 00'32'15" W TI 856.00' N 79'26'12" W T45 318.42' N 89'4327" E T12 86.26' N 00'28'16" W T46 6. 15' N 42'43 27" E T13 5.31' N 5828'16" W T47 49.97' N 89'4J27" E T14 55.48' N 00'28'16" W T48 6. 15' N 43'1633" W T15 5.31' N 57'31'44" E T49 564.04' N 89'4J27" E T16 325.93' N 0028'16" W T50 7.39' N 52'1327" E T17 5.71' N 52'28'16" W T51 71.45' N 8-9'43'27" E T18 57.70' N 00'28'16" W T52 7.39' N 52'4633" W T19 5.71' N 51'31'4 4" E T53 148.42' N 89'4J27" E T20 33.05' N 00'28'16" W T54 739' N 52'1327" E T21 505.43' N 00'36'15" W T55 80.74' N 89'43 27" E T22 78. 13' N 895J27" E T56 7.39' N 52'4633" W T23 50.06' N 00'3348" W T57 238.86' N 89'4327" E T24 39.89' N 86'4454" E T58 6. 15' N 42'4327" E T25 3,5. 14' N 00'32'19" W T59 49.97' N 89W27" E T26 7.81' N 36'47'07" W T60 6. 15' N 43'1633" W T27 965.50' N 88'12'53" E T61 261.45' N 89'4J27" E T28 7.81' N 28'49 59" E T29 970.00' N 83'27'19" E T30 79.60' N 07'34 53" W T31 42.20' N 00'43 33" W CURVE TABLE.' T32 711.58' N 00'32'75" W T33 6.40' N 4 5'12 29" W NUMBER DEL TA RADIUS L ENGTH T34 60.66' N 00'32'15" W C 1 0752'12" 900.00' 13.67' C2 13'11 29" 900.00' 207.21' C3 10'55'04" 944.00' 179.88' C4 1'5746" 851.50' 29. 17' C5 11'02`04" 856.00' 164.85' C6 0'52'08" 970.00' 74.71' C7 4 22 54" 965.50' 73.83' C8 1'02'12" 970.00' 17.55' C9 6'51 20" 1030.00' 123,24' CIO 89'44'78" 20.00' 31.32' SURVEYOR: *Pk LANG Lost Updote:10/12/07 57- PREPARED UNDER THE SUPERVISION OF.• ����\O• E L(���� N:'\2557\ESIrIT\2557_LbID.d wq Thienes Engineering, Inc. m z-o� No. 2767 CML ENGINEERING •LAND SURVEY EXP. 06/30/08 14,349 FIRESTONE BOULEVARD ,/ D. fLL EY DATE �y LA MIRADA, CAUFORNA 906J8 P.L.S. NO. 2767 z:' »zr PN.(714)521-4811 FAX(714)521-4173 REG. E OF C XP. JUNE 30, 2008 \� EXHIBIT "B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained will be landscaping and all appurtenances along portions of the easterly side of Lena Road that abut the Property,the southerly side of Central Avenue that abut the Property, the westerly side of Clevenger Road that abut the Property, and portions of the northerly side of Norman Road that abut the Property, as further depicted on Exhibit B-1. 13 EXHIBIT B-1 Q v • 3o ti az Z z E E I °cam O G s O W D U Z > Z 5wZ O0. < O gTr E;R = ~ 0 y Z Nm N�DIp'_ s s� Qul cz r >°i m„a I e Z � ? — ar Fx” q zy CIE CE CL °z � c rh °� mwY Qtr F uj Q r.x �a uNZ l Zw0 � a Fil z. to Q LL L.l U V, 5 - to �Wd '�` _I wOU > < Z p� E n,e sm og �; uIS r��� m� Q W � � Q < A woC !i Ev all. I$ F- d Q W O E FF Uc �j 7 OC ° Sin'fi�Eg _ UyR'y°uo ° itic 5<0. U Q F-. J < L' U ende -mm W5 -u u ? O uj 5 z � tggl � r° men m e E i=' m (� u+ vUi O U E `` E Ip`v-`,, 2 U °c iJ m °u U a Er-• U m E=m �� m nF- . m g of g W U t c t -" c .;u ° y la- PS o =O J w � �N ° uE 3� OE Yy. ° bm n z o 5� �Es 5� ?mn' = � o E -,Uy ,0 a9 �N U-6 ( so o U w W° c '=U amc E 'SU °u� m '_> m m 3`0? o as » » ® e© ® (D � � � 8 ® O © o � ' Ld I�,!' Q � F K Q zz < y �i o z O b 3/1N3�✓M3� A3]]v/� �NtI S/X3) EXHIBIT PROPERTY OWNER MAINTENANCE STANDARDS AND SAND FILTRATION UNIT MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping and sand filtration unit improvements located within the Property Owner Maintenance Areas identified in Exhibit "B" as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping and sand filtration unit 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 sand filtration unit maintenance within other City landscape assessment districts on file in the office of the City Engineer. All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied, as applicable,pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. The following maintenance standards apply to the Sand Filtration Units located to the south of Building One. • The performance of the units shall be maintained as determined by the Water Quality Management Plan (WQMP) prepared on November 30th, 2006 by Thienes Engineering on file with the Development Services Department. • Dust control shall be mitigated using methods acceptable to the City Engineer. • Records of all inspections, maintenance and repairs are to be available upon request. • Any modifications are subject to City of San Bernardino approval. The City of San Bernardino Public Works Division shall be notified within 72 hours about any emergency repairs. • All maintenance will comply with Landscape Maintenance District and WQMP requirements. 15 1 RESOLUTION NO. COPY 2 RESOLUTION OF THE CITY OF SAN BERNARDINO FINDING AND 3 DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST, THAT BALLOTS SUBMITTED IN FAVOR OF THE ASSESSMENT EXCEED THE BALLOTS 4 SUBMITTED IN OPPOSITION TO THE ASSESSMENT AND THAT THE PUBLIC 5 CONVENIENCE AND NECESSITY REQUIRE THE MAINTENANCE OF LANDSCAPING IN THE CENTRAL AVENUE AND LENA ROAD AREA,APPROVING 6 THE FINAL ENGINEER'S REPORT, CREATING AN ASSESSMENT DISTRICT TO COVER THE COSTS OF SAID MAINTENANCE,KNOWN AS ASSESSMENT DISTRICT 7 NO. 1063, ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT 8 ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 9 10 WHEREAS, pursuant to Chapter 12.90 of the San Bernardino Municipal Code,the Mayor i 11 and Common Council of the City of San Bernardino have preliminarily found that the public 12 interest, convenience, and necessity require the maintenance of landscaping in a portion of the City, 13 as more fully hereinafter described, and the appurtenances and appurtenant work and incidental 14 costs and expenses in connection therewith, that the project is feasible, and that the lands to be 15 assessed will be able to carry the burden of the proposed assessments to pay the costs and expenses 16 thereof, and 17 18 WHEREAS, on August 6, 2007, the Mayor and Common Council of the City of San 19 Bernardino preliminarily approved the Engineer's Report relative to the formation of Assessment 20 District No. 1063, which is on file in the office of the City Clerk, and adopted Resolution No. 21 2007-318 entitled: 22 "RESOLUTION OF THE CITY OF SAN BERNARDINO PRELIMINARILY 23 DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE 24 THE FORMATION OF A LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT LOCATED IN THE CENTRAL AVENUE AND LENA ROAD AREA WITHOUT 25 COMPLIANCE WITH THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931; DECLARING ITS INTENTION TO 26 PROCEED TO ORDER WORK WITHIN THE DISTRICT, TO BE KNOWN AS ASSESSMENT DISTRICT NO. 1063; PRELIMINARILY APPROVING THE 27 ENGINEER'S REPORT AND GIVING NOTICE OF A PUBLIC HEARING." 28 In/ice/nom 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S 2 REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL 3 NOT APPLY. 4 which said resolution duly and legally was published and notice given of a Public Hearing in the 5 6 manner required by law, and pursuant to Section 4 of Article XI11D of the California Constitution, 7 all property owners given notice were also given an Assessment Ballot to indicate support or 8 opposition to the proposed assessment, and written objections and protests, if any,to the formation 9 of the proposed district, the work to be done or the extent of the district to be assessed were heard 10 and considered; and I 11 WHEREAS, a Diagram of the Assessment District has been prepared and is on file in the 12 office of the City Clerk; and 13 14 WHEREAS, an Assessment Roll has been prepared totaling $65,236.05, which sets forth 15 the individual assessments to be levied on each of the parcels of land within Assessment District I 16 No. 1063, for the fiscal year 2008-2009, as set forth in the Engineer's Report, as now submitted, 17 on file in the office of the City Clerk. 18 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 19 OF SAN BERNARDINO AS FOLLOWS: 20 SECTION 1. That a Public Hearing having been held on October 1 and 15, and November 21 22 5, 2007, the Mayor and Common Council, having heard and considered any and all comments 23 received thereon and being fully advised, hereby determine that any and all protests received 24 represent less than a Majority Protest, as represented by the assessment units assessable on the 25 properties represented by said protests. 26 SECTION 2. That ballots having been received and considered, it is hereby determined 27 that the ballots submitted in favor of the assessment exceed the ballots submitted in opposition to 28 10/30/07 2 I 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S 2 REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL 3 ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 4 the assessment. 5 6 SECTION 3. That it is hereby determined that all properties, parcels and lots within the 7 boundaries of the Assessment District receive a local and direct benefit for the works of 8 improvement as proposed for said Assessment District, except for portions determined to be of a 9 general benefit as set forth in said Engineer's Report, and it is hereby further determined and 10 declared that all assessable costs and expenses have been apportioned and spread over the 11 12 properties within the boundaries of the Assessment District in direct proportion to the benefits 13 received thereby. 14 SECTION 4. That the public convenience and necessity require the proposed maintenance 15 and the Mayor and Common Council hereby order, by an affirmative vote of not less than 4/5ths 16 of its members present and voting,the formation of Assessment District No. 1063, along with the 17 work and appurtenances described in said Resolution No. 2007-318 and said Engineer's Report as 18 19 herein approved and that the Special Assessment Investigation, Limitation and Majority Protest Act 20 of 1931 shall not apply. 21 SECTION 5. That the Engineer's Report relative to the formation of Assessment District 22 No. 1063 as now submitted, together with a Diagram of the Assessment District, both on file in the 23 office of the City Clerk, are hereby accepted and approved and that said Engineer's Report shall 24 25 stand as the Report for all future proceedings for this Assessment District. 26 SECTION 6. That the Mayor and Common Council do hereby find and determine that the 27 proportionate costs to be levied against the parcels of land within Assessment District No. 1063 28 10/12/07 3 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 1 PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S 2 REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063, ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL 3 ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 4 are correctly set forth on Assessment Roll No. 1063 for the fiscal year 2008-2009, as set forth in 5 6 said Engineer's Report, as now approved, and on file in the office of the City Clerk of the City of 7 San Bernardino, and do hereby confirm said assessments. 8 SECTION 7. The City Clerk is hereby directed and authorized to publish a Notice Inviting 9 Bids for performing the work ordered, in the San Bernardino County Sun, a newspaper published 10 and circulated in said City, according to the specifications prepared or as will be prepared by the 11 12 City Engineer and on file or to be filed in the office of the City Engineer, at such time when the 13 installation of the landscaping and appurtenances has been accepted by the City. The contract will 14 be awarded pursuant to standards used by the City in the award of Public Works contracts. 15 SECTION 8. It is hereby determined that the formation of the assessment district is I 16 categorically exempt from the requirements of the California Environmental Quality Act(CEQA), � 17 pursuant to Class 1, Section 15301(c). 18 19 SECTION 9. Reference hereby is made to said Resolution No. 2007-318 and said 20 Engineer's Report for a description of the work, the extent of the assessment district, the financing 21 alternatives and for further particulars. 22 SECTION 10. That the City Clerk is directed to cause a copy of this Resolution to be 23 transmitted to the office of the Auditor-Controller for the County of San Bernardino with the 24 25 request that the individual assessments as shown on Assessment Roll No. 1063 be placed on the 26 subject 2008-2009 property tax bills for collection together with all other property taxes. 27 /// 28 10/12/07 4 A 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CENTRAL AVENUE AND LENA ROAD AREA,APPROVING THE FINAL ENGINEER'S 2 REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1063,ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL 3 ASSESSMENT INVESTIGATION, LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 4 5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a meeting thereof held on 7 the day of 20 , by the following vote, to-wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 10 ESTRADA 11 BAXTER 12 BRINKER 13 DERRY 14 KELLEY 15 I 16 JOHNSON 17 MCCAMMACK 18 19 City Clerk 20 The foregoing resolution is hereby approved this day of , 20 21 22 23 PATRICK J. MORRIS, Mayor City of San Bernardino 24 Approved as to form: 25 26 27 JA ES F. PENMAN, City Attorney 28 10/12/07 5 Recording Requested By: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 When Recorded, Mail To: City of San Bernardino Real Property Section, 3`d Floor 300 North "D" Street San Bernardino, CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Central Avenue and Lena Road/Gateway South) THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of , 2007, and evidences the agreement of HSB 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. 1063 (the "Landscape District'), which property is the subject of this Maintenance Agreement(the"Pro e "), as more fully described in Exhibit "A" attached hereto, and (ii) the City of San Bernardino, a municipal corporation and charter city of the State of California(the "City"). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90 ("Municipal Code Chapter 12 90"), and other applicable law, including without limitation, Streets and Highways Code Section 22500, et seq., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the Landscape District. Exhibit "B" as attached hereto reflects the boundaries of the Landscape District and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner(the"EMperty Owner Maintenance Areas"). The Landscape District includes no property other than the Property. 1 (b) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the maintenance standards as set forth in Exhibit"C" as attached hereto,the Landscape District shall be considered to be a"default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Maintenance Agreement. Notwithstanding the foregoing, the City shall not forbear the collection of the first year assessments for Assessment District No. 1063, and the Property Owner shall pay the City the first year assessments for Assessment District No. 1063, which the City shall collect and hold in reserve until such time as this Maintenance Agreement is terminated, at which time the City may apply such reserve to the costs of Assessment District No. 1063. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Maintenance Agreement by the City, the City shall consider the Property Owner Maintenance Areas to be treated the same as any other property within the other landscape maintenance assessment districts in the City for which an annual assessment is collected by the City to pay for the landscape maintenance services performed by the City. Such assessment amount(to be reflected on the annual property tax bill)as may then be collected by the City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting from the default by the Property Owner under this Maintenance Agreement for the annual maintenance of the landscaping and administration and collection of assessments related to the Landscape District during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Such assessments (net of the 10% general benefit portion to be paid by the City) shall be allocated to the Property Owner as set forth in the Engineer's Report referenced in Section 1(c) below, including the allocation of the assessments solely between the two commercial parcels referenced in the Engineer's Report that will be created by Parcel Map No. 17721 (Parcel 1 and Parcel 2), when and if such Parcel Map is approved by the City and recorded. (c) The City Engineer or his/her designee, has prepared the Engineer's Report for Assessment District No. 1063 dated June 1, 2007, on file with the City Clerk as File No. 14.40-159 (the "Engineers' Report"). (d) Beginning with the second year assessments and during the remaining term of this Maintenance Agreement, the City shall not forbear the collection of, and Property Owner shall pay the City the annual assessments of Assessment District No. 1063 attributable to the costs of Weekly Inspections, Annual Assessment Engineering, and Outside Department Services (collectively the "Administrative Costs"), which are described in the Engineer's Report and the formation documents for the Landscape District. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below for the maintenance and servicing of public landscaping improvements on the Property Owner Maintenance Areas situated within the Landscape District. 2 (b) At such time as this Maintenance Agreement no longer is in full force and effect, the special assessments as may thereafter be collected by the City each fiscal year shall be the costs incurred by the City for the following: (i) the maintenance and servicing by the City of any landscaping and sand filtration units within the Property Owner Maintenance Areas. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance of the landscaping and sand filtration units, including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste, including appurtenant contract administration, inspection and incidentals thereto, and including the maintenance standards for the sand filtration units, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this Maintenance Agreement. Section 3. Termination Right by City Engineer. (a) City Engineer shall mean the City Engineer, or his/her designee. (b) In accordance with Section 3 (b) herein,the City shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b)above and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior i written notice from the City Engineer, or his/her designee, to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement(subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default(subject to prudent seasonal planting practices), the City(if such termination is first approved by the Major and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided) shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with 3 a diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and Common Council at a duly held and noticed public meeting, wherein the Mayor and Common Council shall be presented with the facts and circumstances of any alleged default together with any recommendations for the termination of this Maintenance Agreement. It shall be sufficient for purposes hereof that the action of the Mayor and Common Council shall be to declare a default hereunder by the Property Owner, and upon the expiration of the applicable notice period without an adequate cure having been completed, no further official action shall be required by the Mayor and Common Council for such termination to be effective. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of the Landscape District to be a"default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance and seek collection of the annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. (c) The sole right of the Property Owner to contest any determination by the City for the termination of this Maintenance Agreement shall be to appear before the Mayor and Common Council at the public meeting at such time it is proposed for the Mayor and Common Council to take official action with respect to such termination. The Property Owner agrees not to file any court action or to seek any judicial relief from any such determination of the City to terminate this Maintenance Agreement or for any interpretation of this Maintenance Agreement. (d) Unless waived by the City Engineer at his sole discretion, the Property Owner shall ► only be permitted to have two defaults determined by the Mayor and Common Council pursuant to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer(if such termination is first approved by the Mayor and Common Council as provided above), by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 4 Section 4. Notices and Communications. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property c/o Hillwood Development Company, LLC Owner: 268 West Hospitality Lane, Suite 105 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 calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under Section 2 of this Maintenance Agreement, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property, and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of 30 years and shall terminate,unless terminated sooner as permitted in this Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. 5 Section 7. First Year's Assessment. The 2008/2009 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts shown on Table 1 of the Engineer's Report. Section 8. City Confirmation. On request from time-to-time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 9. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 10. Entire Agreement, Amendment and Termination. This Maintenance Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3 regarding termination. Section 11. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as "attorneys' fees"for the purposes of this Maintenance Agreement. i Section 12. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws i pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 13. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including 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 14. Insurance (a) Minimum Scope and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (1) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (ii) Automobile liability for owned vehicles, hired, and non-owned vehicles, with a policy limit of not less than One Million Dollars($1,000,000.00), combined single limits, per occurrence and aggregate. (iii) Workers' compensation insurance as required by the State of California. (b) Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: (i) Additional insured: "The City of San Bernardino and its elected and i appointed boards, officers, agents, and employees are additional insured with respect to Property Owner's performance under this Agreement with City." (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty(30) days after written notice is given to City." (iii) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." (c) Certificates of Insurance. Property Owner shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. (d) Non-limiting. Nothing in this Section shall be construed as limiting in any way, any indemnification provision contained in this Agreement, or the extent to which Property Owner may be held responsible for payments of damages to persons or property. Section 15. No Third Party Beneficiar Right s. 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 °wrr 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 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. 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. I 8 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 sixty (60) days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE 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 HSB LAND, L.P., a California limited partnership By: By:Hillwood Operating, L.P., FRED WILSON, City Manager a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, SEAL its general partner ATTEST: By: RACHEL CLARK, City Clerk John M. Magness Senior Vice President Approved as to Form: �'o . -Le-��' Y ES F. PENMAN, City Attorney L 10 Consent of Lender WELLS FARGO BANK, NATIONAL ASSOCIATION ("Agent"), hereby consents to and subordinates that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated July 20, 2005, and recorded on August 2, 2005 as Document No.2005-0558862, as modified by document recorded on January 31, 2006 as Document No. 2006- 0069269 in the Official Records of San Bernardino County, California, to this Maintenance Agreement. WELLS FARGO BANK,NATIONAL ASSOCIATION, as agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions identified in an Intercreditor Agreement executed by Agent and such Lenders By: J. Kent Howard Senior Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: J. Kent Howard Senior Vice President STATE OF TEXAS § § ss. COUNTY OF DALLAS § I This instrument was ACKNOWLEDGED before me on , 2007, by J. Kent i Howard, the Senior Vice President of Wells Fargo Bank, National Association, a national banking association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions(collectively, "Lenders") identified in an Intercreditor Agreement executed by Agent and such Lenders. [SEAL] My Commission Expires: Notary Public, State of Texas Printed Name of Notary Public 11 EXHIBIT "A" PROPERTY DESCRIPTION (See Attached) 12 SHEET 1 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY LOTS 10 THROUGH 20 INCLUSIVE, AND A PORTION OF LOT 9 OF TRACT NO. 2228, VALLEY TRUCK FARMS NO. 4, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE 95 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH PORTIONS OF LOTS 1 THROUGH 11 INCLUSIVE, OF TRACT NO. 2980, PETER HELD'S SUBDIVISION, AS PER MAP RECORDED IN BOOK 40, PAGE 50 OF MAPS,AND PORTIONS OF LOTS 11 AND 12, BLOCK 12 OF THE SAN BERNARDINO RANCHO, AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, BOTH IN THE OFFICE OF SAID COUNTY RECORDER, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE CENTERLINE OF CENTRAL AVENUE, DISTANT THEREON NORTH 890 43'27"EAST, 109.12 FEET FROM THE CENTERLINE OF VALLEY VIEW AVENUE, AS SHOWN ON SAID TRACT NO. 2980; THENCE SOUTH 001 28' 38" WEST, 30.33 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 900.00 FEET, THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 00 52' 12"AN ARC LENGTH OF 13.67 FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 22, 1964 IN BOOK 6256, PAGE 928, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID SOUTHERLY LINE BEING PARALLEL WITH AND 44.00 FEET _. SOUTHERLY OF SAID CENTERLINE OF CENTRAL AVENUE; THENCE ALONG SAID SOUTHERLY LINE, NORTH 890 43' 27" EAST, 68.12 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 450 57' 37" WEST, 34.17 FEET TO THE BEGINNING OF A NON- TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 944.00 FEET AND BEING CONCENTRIC WITH SAID 900.00 FEET RADIUS CURVE, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS SOUTH 880 12' 13"EAST- THENCE SOUTHERLY ALONG SAID NON-TANGENT CURVE, THROUGH A CENTRAL ANGLE OF 100 55'04"AN ARC LENGTH OF 179.88 FEET; THENCE SOUTH 120 42' 51" WEST, 96.41 FEET; I THENCE SOUTH 450 17'09"EAST, 5.31 FEET; THENCE SOUTH 120 42'51"WEST, 26.51 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 851.50 FEET; THENCE SOUTHERLY ALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 57'46"AN ARC LENGTH OF 29.17 FEET; THENCE SOUTH 680 45'05"WEST, 5.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 856.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 790 26' 12"EAST; THENCE SOUTHERLY ALONG SAID 856.00 RADIUS CURVE, THROUGH A CENTRAL ANGLE OF 110 02'04"AN ARC LENGTH OF 164.85 FEET THENCE TANGENT TO SAID CURVE, SOUTH 000 28' 16" EAST, 86.26 FEET; THENCE SOUTH 58°28' 16"EAST, 5.31 FEET' THENCE SOUTH 000 28' 16" EAST, 55.48 FEET; THENCE SOUTH 570 31' 44" WEST, 5.31 FEET, THENCE SOUTH 000 28' 16" EAST, 325.93 FEET; THENCE SOUTH 50 28' 16" EAST, 5.71 FEET THENCE SOUTH 000 28'16"EAST, 57.70 FEET; THENCE SOUTH 51°31'44"WEST, 5.71 FEET" THENCE SOUTH 000 28' 16" EAST, 33.05 FEET TO THE SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980; THENCE ALONG SAID SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980 AND THE SOUTHERLY LINE OF SAID LOT 11, BLOCK 55 OF RANCHO SAN BERNARDINO, NORTH 890 50' 45" EAST, 829.87 FEET TO THE NORTHWEST CORNER OF SAID LOT 20; THENCE ALONG THE BOUNDARY OF SAID LOTS 10 THROUGH 20 OF TRACT NO. 2228, SOUTH 000 36'15"EAST, 505.43 FEET, SHEET 2 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY NORTH 890 53' 27" EAST, 78.13 FEET, NORTH 860 44' 54" EAST, 1022.61 FEET AND NORTH 000 33' 48" WEST, 50.06 FEET TO A LINE PARALLEL WITH AND 50.00 FEET NORTHERLY, MEASURED AT RIGHT ANGLES, FROM THE MOST SOUTHERLY LINE OF SAID LOT 9; THENCE ALONG SAID PARALLEL LINE AND ITS EASTERLY PROLONGATION, NORTH 860 44' 54"EAST, 39.89 FEET TO THE WESTERLY LINE OF CLEVENGER DRIVE (60.00 FEET WIDE) AS PRESENTLY EXISTS AT THE DATE OF RECORDATION OF THIS DOCUMENT; THENCE ALONG SAID WESTERLY LINE THE FOLLOWING TWO (2) COURSES: 1) NORTH 001 32' 19" WEST, 35.14 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET, 2) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 000 52' 08"AN ARC LENGTH OF 14.71 FEET; THENCE NORTH 360 47' 07" WEST, 7.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 965.50 FEET AND BEING CONCENTRIC WITH SAID 970.00 FEET RADIUS CURVE, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 880 12'53"EAST; THENCE NORTHERLY ALONG SAID 965.50 FEET CURVE, THROUGH A CENTRAL ANGLE OF 40 22' 54"AN ARC LENGTH OF 73.83 FEET; THENCE NORTH 280 49'59"EAST, 7.81 FEET TO SAID WESTERLY LINE, BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS, NORTH 830 27' 19" EAST,• THENCE ALONG SAID WESTERLY LINE THE FOLLOWING FOUR(4) COURSES: 1) NORTHERLY ALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 02' 12"AN ARC LENGTH OF 17.55 FEET 2) TANGENT TO SAID CURVE, NORTH 07°34,53" WEST, 79.60 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 1030.00 FEET; 3) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 60 51' 20" AN ARC LENGTH OF 123.24 FEET,' 4) NORTH 000 43' 33" WEST, 42.20 FEET TO THE INTERSECTION OF A LINE PARALLEL WITH AND 30.00 FEET WESTERLY, MEASURED AT RIGHT ANGLES, FROM THE WESTERLY LINE OF LOT 13, BLOCK 55 OF SAID RANCHO SAN BERNARDINO, AS SHOWN ON TRACT NO. 2896, AS PER MAP RECORDED IN BOOK 40, PAGES 47 AND 48 OF MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32' 15" WEST, 111.58 FEET; THENCE NORTH 45° 12'29"WEST, 6.40 FEET,• THENCE NORTH 000 32' 15"WEST, 60.66 FEET; THENCE NORTH 440 07' 59" EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, THENCE, NORTH 00°32' 15" WEST, 355.24 FEET' THENCE NORTH 450 12' 29" WEST, 6.40 FEET; THENCE NORTH 000 32' 15" WEST, 60.67 FEET; THENCE NORTH 440 07'59"EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32' 15" WEST, 245.13 FEET TO THE SOUTH LINE OF THE NORTH 246.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID SOUTH LINE, SOUTH 890 43'27"WEST, 90.00 FEET TO THE WEST LINE OF THE EAST 120.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID WEST LINE, NORTH 000 32' 15" WEST, 60.00 FEET TO THE SOUTH LINE OF THE NORTH 186.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO, THENCE ALONG SAID SOUTH LINE OF THE NORTH 186.00 FEET, NORTH 890 43' 27" EAST, 90.00 FEET TO SAID PARALLEL LINE OF LOT 13, ALSO BEING THE WESTERLY LINE OF PARCEL NO. 2 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 30, 1964 IN BOOK 6262, PAGE 458, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG THE BOUNDARY OF LAST SAID GRANT OF EASEMENT THE FOLLOWING TWO(2) SHEET 3 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY COURSES: 1) NORTH 00° 32' 15" WEST, 163.34 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 20.00 FEET; 2) NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 890 44'18"AN ARC LENGTH OF 31.32 FEET TO THE SOUTH LINE OF PARCEL NO. 1 OF LAST SAID GRANT OF EASEMENT; THENCE TANGENT TO SAID CURVE ALONG SAID SOUTH LINE OF PARCEL NO. 1 AND ITS WESTERLY PROLONGATION, SOUTH 890 43' 27" WEST, 318.42 FEET; THENCE SOUTH 420 43' 27" WEST, 6.15 FEET- THENCE SOUTH 890 43' 27" WEST, 49.97 FEET,•.THENCE NORTH 430 16' 33" WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 89°43'27" WEST, 564.04 FEET; THENCE SOUTH 520 13' 27" WEST, 7.39 FEET, THENCE SOUTH 890 43'27"WEST, 71.45 FEET THENCE NORTH 520 46'33"WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43'27"WEST, 148.42 FEET,• THENCE SOUTH 52° 13'27"WEST, 7.39 FEET, THENCE SOUTH 890 43'27" WEST, 80.74 FEET, THENCE NORTH 52°46' 33" WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 89° 43' 27" WEST, 238.86 FEET, THENCE SOUTH 420 43'27"WEST, 6.15 FEET; THENCE SOUTH 890 43'27"WEST, 49.97 FEET; THENCE NORTH 430 16' 33" WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43' 27"WEST, 261.45 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING:2,634,738 SQUARE FEET OR 60.485 ACRES MORE OR LESS. EXHIBIT"B"ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION. DATE: N� LAND J. D. ELLZEY P.L.S. No. 2767 REG. EXP. 06130108 N0. 2767 * EXP. 06/30/08 N:25571ESMn2557 LMD.doc Q Last Update:10/12%07 I SCALE:1"=300' HXH/B/T 7A —1 py P.O.C.SHEET 1 OF 2 THE PROPERTY T 1 T2 T.P.O.B. v NOTE C 1 r T5 --SEE SHEET 2 OF 2 FOR 44 CURVE AND TANGENT TABLES. AIL: P.O.C. cn W T.P.0.8. CENTRAL A VE. 00 cD —� — T5 T2__ - (RAD) - T61 T57 T53 T49 T45 t cD "� m I N I - I T59 T55 T51 T47 v of o 0 1 T43 \ I O JI N rn I _ T41 CN - T8—�— BLOCK 55 RANCHO SAN I SERNARDINO ~ T7 —1 6 T 10 = _ C4 LOT 4 44' _= 30 CS— LOT (RADA 1 10 af T12 LOT 6 0 1 rn T39 w - - - iio—{ LO f 1 1 i LO—f l 2 ~ T37 a T13 W T15 F LOT 7� � I LOT 8 d 3 �J LOT 9 N w 44' ~ — — — Z l i M.S, 7 / 2 V LOT 10 > T35 Ti 00 — — I T33 w T 1 � LOT i t N I T32 0 w T20 N 89'50'45" E 829.87' r �� T' — r °� ! I I I I J4-- I � I c9 TRACT ND. 2228, VALLEY TRUCK FARMS O. 4 �B. 31 951 1 0 ui F I — I I ° 1 S I T30 0 m I i�)---C�B T28 o o I o o o o I J J J J --I --a----- - T26 I I I I T24° T22 I I I T2'3 C6- - - - - - 'c — T25 N 86'44'54" E 1022.61 AREA: NORMAN ROAD CONTAINS 2,6J4,738 SO FT. f SURVEYOR:60.485 ACRES f \OIL, . LANV S PREPARED UNDER THE SUPERVISION OF oc�`'j0' E L 0 Thienes Engineering Inc. N0. 2767 CML ENGINEERING •LAND SURVEYING I(J I Z—D 7 * EXP. 06/30/08 14349 FIRESTONE BOULEVARD /, D. EL Z Y DATE LA MIRADA, CAVFORNA 90638 P P.L.S. NO. 2767 F 0 ::.; N.(714)5Z1-4911 FAX(714J521-417J PEG. EXP. JUIVE 30, 2008 OF CA�'�� ` EXH IB I T 'FA -1 ff SHEET 2 of 2 THE PROPERTY TANGENT TABLE.• TANGENT TABLE: NUMBER DISTANCE BEARING NUMBER DISTANCE BEARING T1 109. 12' Al 89'4327" E T35 6.40' N 44'0759" E T2 30.33' N 0028:38" W T36 355.24' N 00'.32'15" W T3 68. 12' N 89'43 27" E T37 6.40' N 45'12 29" W T4 J4. 17' N 4557:37" E T38 60.67' N 00'32'15" W T5 944.00' N 88'12'13" W T39 6.40' N 44'0759" E T6 96.4 1' N 12'42'51" E 1-40 245. 13' N 00'32'15" W T7 5.31' N 45'17`09" W T41 90.00' N 89'43 27" £ T8 26.51' N 12'42'51" E T42 60.00' N DO;32'15" W T9 851.50' N 771709" W T43 90.00' N 89'4327" E T10 5.30' N 68'45'05" E T44 163.34' N 00'32'15" W TI 856.00" N 7926'12" W T45 .318.42' N 894327" E T12 86.26' N 00'28'16" W T46 6. 15' N 42'43 27" E T13 5.31' N 58'28'16" W T47 49.97' N 89"4327" E T14 55.48' N 0028'16" W T48 6. 15' N 43'16:33" W T15 5.31' N 57'31'44" E T49 564.04' N 89'43 27" E T16 325.93' N 00'28'16" W T50 7.39' N 52'1327" E T17 5.71' N 5228'16" W T51 71.45' N 89'4327" £ T18 57.70' N 00'28'16" W T52 7.39' N 52'46:33" W T19 5.71' N 51'31'44" E T53 148.42' N 89'43'27" E T20 33.05' N 00'28'16" W T54 7.39' N 52'13:27" E - T21 505.43' N 00'36'15" W T55 80.74' N 89W27" E T22 78. 13' N 895J27" E T56 7.39' N 5246:33" W T23 50.06' N 00'3348° W T57 238.86' N 89'4327" E T24 39.89' N 86'44 54" E T58 6. 15' N 424J27" E T25 35. 14' N 00'32'19" W T59 49.97' N 89'4327" E T26 7.81' N 36'47 07" W T60 6.15' N 43'16:33" W T27 965.50' N 88'1253" E T61 261.45' N 89'4327" E T28 7.81' N 28'4959" E T29 970.00' N 8327'19" E T30 79.60' N 0734 53" W T31 42.20' N 00'43 33" W CURVE TABLE: T32 111.58' N 00'J2'15" W T33 6.40' N 45'12'29" W NUMBER DEL TA RADIUS LENGTH T34 60.66' N 00'32'15" W Cl 0'52'12" 900.00' 13.67' C2 13'11 29" 900.00' 207.21' C3 10755104" 944.00' 179.88' C4 1'5746" 851.50' 29.17' C5 11 P02`04" 856.00' 164.85' C6 0'52`08" 970.00' 14.71' C7 422.54" 965.50' 73.83' C8 1'02'12" 970.00' 1755' C9 6'51'20" 1030.00' 12J.24' CIO 89'44'18" 20.00' 31.32' DPI s Lost UDdole:10/12/07 SURVEYOR: NA NO� N:\2557\ESMT\2557-LA10.dwq PREPARED UNDER THE SUPERVISION OF. 0 Thienes Engineering, lnc. �a z 7 No. 2767 CML ENGINEERING •LAND SURVEYING / ur,EXP. 06/30/08 © 14.349 FIRESTONE BOULEVARD J, D. ELL EY DATE �9 LA M/RAD4, CAUFORNIA 90638 P.L.S. N0. 2767 Q PH.(714)521-4811 FAX(714)521-4173 REG. EXP. JUNE 30, 2008 OF C A�\F EXHIBIT "B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained will be landscaping and all appurtenances along portions of the easterly side of Lena Road that abut the Property,the southerly side of Central Avenue that abut the Property, the westerly side of Clevenger Road that abut the Property, and portions of the northerly side of Norman Road that abut the Property, as further depicted on Exhibit B-1. 13 EXHIBIT B-1 a z It —I r o o a O w Z> ° Z ¢ oz RE oc � o 4z � °° vdm Qw w < < r m N Z > Q x ` Z rR Cr a0 p vFi O h °mAmrE - w 0 OC LizZ 20 UocDUd c > C:7 �zF Z Z O m v m E o z < �LL o � � - !Ta moo z � Em� m - < < Z ° E aP ?c o� m5yo tlZ m Z w A z d m B V u 5 u ���� m m O d x< 4 < H m < o�A� 9- laa= m In � Q zu 0 za r oN�nEm r UA off? E� a u < � z o _ �w w < z t � ( -I� E zl w F a < c m e ° �; eb m E = m (o)° ° f%1 IE c o y 2, ° ° W ;d z mE Z o .2•._m D m w w n�.£m m r a Q m V U m.L V U Z m Ef c m y U U m E m E zy ym um E ° xU um ci =� a w5 m DIANA ow Ur L & U a c E'` i ga0 m �_m'o �a'c� m' ° ta. it O G 0 z �J Q O z°) M< 5 g, ,tf�M't,R,9COD N N � o h U u O � z _ u9 a JtRm N 9 O yC� ----------T---------------r — 3(IN3.1✓M3N A3'l�✓A rN[l SIX3J EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS AND SAND FILTRATION UNIT MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping and sand filtration unit improvements located within the Property Owner Maintenance Areas identified in Exhibit"B"as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping and sand filtration unit 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 sand filtration unit maintenance within other City landscape assessment districts on file in the office of the City Engineer. All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied, as applicable,pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. The following maintenance standards apply to the Sand Filtration Units located to the south of Building One. • The performance of the units shall be maintained as determined by the Water Quality Management Plan (WQMP) prepared on November 30`h, 2006 by Thienes Engineering on file with the Development Services Department. • Dust control shall be mitigated using methods acceptable to the City Engineer. • Records of all inspections, maintenance and repairs are to be available upon request. • Any modifications are subject to City of San Bernardino approval. The City of San Bernardino Public Works Division shall be notified within 72 hours about any emergency repairs. • All maintenance will comply with Landscape Maintenance District and WQMP requirements. 0 15 Recording Requested By: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 When Recorded, Mail To: City of San Bernardino Real Property Section, 3`d Floor 300 North "D" Street San Bernardino, CA 92418 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (Central Avenue and Lena Road/Gateway South) THIS AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND PROPERTY ``�.. OWNERS FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT (this "Maintenance Agreement") is dated as of , 2007, and evidences the agreement of HSB 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. 1063 (the "Landscape District"),which property is the subject of this Maintenance Agreement(the"Prop "), as more fully described in Exhibit "A" attached hereto, and (ii) the City of San Bernardino, a municipal corporation and charter city of the State of California(the "City"). THE PROPERTY OWNER AS THE OWNER OF THE PROPERTY AND THE CITY HEREBY AGREE AS FOLLOWS: Section 1. Obligations of Property Owner. (a) This Maintenance Agreement is entered into by the parties pursuant to the provisions of City of San Bernardino Municipal Code Chapter 12.90 ("Municipal Code Chapter 12.90"), and other applicable law, including without limitation, Streets and Highways Code Section 22500, et Se Mc., for the purpose of providing for the private maintenance and operation of certain landscaping within agreed upon areas of the Landscape District. Exhibit "B" as attached hereto reflects the boundaries of the Landscape District and describes the areas thereof that are the subject of this Maintenance Agreement which are intended to be maintained by the Property Owner(the"Pro e Owner Maintenance Areas"). The Landscape District includes no property other than the Property. 1 (b) To the extent that the Property Owner complies with the requirements of this Maintenance Agreement, including the maintenance standards as set forth in Exhibit"C"as attached hereto, the Landscape District shall be considered to be a"default assessment district" for which the City shall forebear the collection of assessments for the Property Owner Maintenance Areas. The City agrees to forebear the collection of such assessments for the Property Owner Maintenance Areas during the period of time that the Property Owner complies with the provisions of this Maintenance Agreement. Notwithstanding the foregoing, the City shall not forbear the collection of the first year assessments for Assessment District No. 1063, and the Property Owner shall pay the City the first year assessments for Assessment District No. 1063, which the City shall collect and hold in reserve until such time as this Maintenance Agreement is terminated, at which time the City may apply such reserve to the costs of Assessment District No. 1063. Upon a default by the Property Owner of any material obligation incurred pursuant to this Maintenance Agreement and termination of this Maintenance Agreement by the City, the City shall consider the Property Owner Maintenance Areas to be treated the same as any other property within the other landscape maintenance assessment districts in the City for which an annual assessment is collected by the City to pay for the landscape maintenance services performed by the City. Such assessment amount(to be reflected on the annual property tax bill)as may then be collected by the City shall be in an amount to pay or reimburse the City for all costs incurred by the City resulting from the default by the Property Owner under this Maintenance Agreement for the annual maintenance of the landscaping and administration and collection of assessments related to the Landscape District during the fiscal year in which the default occurs and in each subsequent fiscal year of the City thereafter. Such assessments (net of the 10% general benefit portion to be paid by the City) shall be allocated to the Property Owner as set forth in the Engineer's Report referenced in Section 1(c) below, including the allocation of the assessments solely between the two commercial parcels referenced in the Engineer's Report that will be created by Parcel Map No. 17721 (Parcel 1 and Parcel 2), when and if such Parcel Map is approved by the City and recorded. (c) The City Engineer or his/her designee, has prepared the Engineer's Report for Assessment District No. 1063 dated June 1, 2007, on file with the City Clerk as File No. 14.40-159 (the "Engineers' Report"). (d) Beginning with the second year assessments and during the remaining term of this Maintenance Agreement, the City shall not forbear the collection of, and Property Owner shall pay the City the annual assessments of Assessment District No. 1063 attributable to the costs of Weekly Inspections, Annual Assessment Engineering, and Outside Department Services (collectively the "Administrative Costs"), which are described in the Engineer's Report and the formation documents for the Landscape District. Section 2. Landscape Maintenance. (a) The Property Owner recognizes that the City has initiated and completed proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 2(b)below for the maintenance and servicing of public landscaping improvements on the Property Owner Maintenance Areas situated within the Landscape District. 2 (b) At such time as this Maintenance Agreement no longer is in full force and effect, the special assessments as may thereafter be collected by the City each fiscal year shall be the costs incurred by the City for the following: (i) the maintenance and servicing by the City of any landscaping and sand filtration units within the Property Owner Maintenance Areas. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance of the landscaping and sand filtration units, including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste, including appurtenant contract administration, inspection and incidentals thereto, and including the maintenance standards for the sand filtration units, all as more extensively set forth in Exhibit "C" attached hereto and incorporated by this reference as if set forth fully herein; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs associated with (1) the preparation of annual engineering reports, (2) the levy of the annual assessments, and (3) the collection of the assessments as set forth in this Maintenance Agreement. Section 3. Termination Right by City En ineer. (a) City Engineer shall mean the City Engineer, or his/her designee. (b) In accordance with Section 3 (b) herein, the City shall have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b)above and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof following at least 30 days' prior written notice from the City Engineer, or his/her designee, to the Property Owner ordering the Property Owner to perform the maintenance or furnishing of services described in such notice as required by this Maintenance Agreement (subject to prudent seasonal planting practices). Upon the expiration of such 30-day notice and cure period, in the event the Property Owner has not cured the default(subject to prudent seasonal planting practices),the City(if such termination is first approved by the Major and Common Council as hereinafter provided) shall have the right at any time thereafter to terminate this Maintenance Agreement effective upon the receipt of notice of termination by the Property Owner (as provided in Section 4(b) herein). The City (if such termination is first approved by the Major and Common Council as hereinafter provided) shall also have the right to terminate this Maintenance Agreement in the event the Property Owner shall have failed to perform the maintenance or the furnishing of services described in Section 1(b) and/or Exhibit"C"within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with 3 AVWL diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination of this Maintenance Agreement must be approved pursuant to the official action of the Mayor and Common Council at a duly held and noticed public meeting, wherein the Mayor and Common Council shall be presented with the facts and circumstances of any alleged default together with any recommendations for the termination of this Maintenance Agreement. It shall be sufficient for purposes hereof that the action of the Mayor and Common Council shall be to declare a default hereunder by the Property Owner, and upon the expiration of the applicable notice period without an adequate cure having been completed, no further official action shall be required by the Mayor and Common Council for such termination to be effective. Upon the termination of this Maintenance Agreement by the City Engineer, the City shall thereupon no longer deem any portion of the Landscape District to be a"default assessment district" as to the Property and the City shall undertake the regular periodic landscape maintenance and seek collection of the annual landscape maintenance amount against the Property as provided in this Maintenance Agreement. (c) The sole right of the Property Owner to contest any determination by the City for the termination of this Maintenance Agreement shall be to appear before the Mayor and Common Council at the public meeting at such time it is proposed for the Mayor and Common Council to take official action with respect to such termination. The Property Owner agrees not to file any court action or to seek any judicial relief from any such determination of the City to terminate this Maintenance Agreement or for any interpretation of this Maintenance Agreement. (d) Unless waived by the City Engineer at his sole discretion, the Property Owner shall only be permitted to have two defaults determined by the Mayor and Common Council pursuant to this Maintenance Agreement, which may be cured by the Property Owner. Unless so waived by the City Engineer, upon the occurrence of a third default hereunder, regardless of whether the prior defaults were cured by the Property Owner, this Maintenance Agreement shall terminate, if so determined by the City Engineer(if such termination is first approved by the Mayor and Common Council as provided above), by the City Engineer sending a notice, within 30 days after the occurrence of such third default, advising the Property Owner of said termination of this Maintenance Agreement, without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such third default. If a waiver is granted, then the City Engineer may terminate this Maintenance Agreement upon the occurrence of any subsequent default, unless waived by the City Engineer, by sending notice, within 30 days after the occurrence of such default, advising the Property Owner of said termination of this Maintenance Agreement without the necessity of having given the Property Owner a notice of default and cure opportunity with respect to such subsequent default. 0 4 Section 4. Notices and Communications. (a) Any and all notices, demands or communications submitted by either party to another party pursuant to or as required by this Maintenance Agreement shall be proper if in writing and dispatched by messenger for immediate personal delivery, or by registered or certified United States mail, postage prepaid, return receipt requested, or transmitted by FAX and confirmed by the sender by First Class United States Mail postage prepaid or by personal delivery and in each case, addressed to the principal office of the parties, as applicable, as designated below. To City: City of San Bernardino City Engineer City Hall, Third Floor 300 North "D" Street San Bernardino, California 92418 To Property c/o Hillwood Development Company, LLC Owner: 268 West Hospitality Lane, Suite 105 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 calendar days after it is placed in the United States Mail or personal delivery as heretofore provided. Section 5. Acceptance of Assessment Lien. The Property Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be assessed by the City under Section 2 of this Maintenance Agreement, at the same time and in the same manner as County of San Bernardino general property taxes are collected against real property, and all the laws providing for the collection and enforcement of County of San Bernardino property taxes shall apply to the collection and enforcement of any such assessments. Nothing shall prevent the City from the foreclosure of any assessment lien and independently pursuing judicial remedies for the enforcement of any assessment lien in the manner as may be available to the City pursuant to the Municipal Code or other applicable California law. Section 6. Term of Agreement. This Maintenance Agreement shall remain in full force and effect for a term of 30 years and shall terminate, unless terminated sooner as permitted in this Maintenance Agreement, 30 years after the effective date set forth in the introductory paragraph hereof. 5 Section 7. First Year's Assessment. The 2008/2009 assessment to the Property Owner by the City pursuant to the Landscape District shall be limited to the amounts shown on Table 1 of the Engineer's Report. Section 8. City Confirmation. On request from time-to-time of the Property Owner, the City Engineer shall confirm in writing, addressed as requested by the Property Owner, the existence of this Maintenance Agreement and the existence or non-existence of any defaults hereunder then known to the City Engineer. Section 9. Non-discrimination. In performing this Maintenance Agreement, Property Owner shall not engage in, nor permit its agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, physical handicap, medical condition, marital status, sexual gender or sexual orientation, except as permitted pursuant to Section 12940 of the Government Code. Violation of this provision may result in the imposition of penalties referred to in Labor Code, Section 1735. Section 10. Entire Agreement, Amendment and Termination. This Maintenance Agreement constitutes the entire agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. The terms of this Maintenance Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Maintenance Agreement. This Maintenance Agreement may be amended or terminated only by written agreement, signed by the parties in interest at the time of such amendment or termination, except as also provided in Section 3 regarding termination. Section 11. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Maintenance Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in connection with that action, shall be considered as"attorneys' fees"for I the purposes of this Maintenance Agreement. Section 12. Governing Law. This Maintenance Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Maintenance Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. Section 13. Indemnification and Hold Harmless. Property Owner shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, officers, and employees from any and all claims, liabilities, expenses, including 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 14. Insurance (a) Minimum Scope and Limits of Insurance. Property Owner shall obtain and maintain during the life of this Agreement all of the following insurance coverages: (i) Comprehensive general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (ii) Automobile liability for owned vehicles, hired, and non-owned vehicles,with a policy limit of not less than One Million Dollars ($1,000,000.00),combined single limits, per occurrence and aggregate. (iii) Workers' compensation insurance as required by the State of California. (b) Endorsements. The comprehensive general liability insurance policy shall contain • or be endorsed to contain the following provisions: (i) Additional insured: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insured with respect to Property Owner's performance under this Agreement with City." (ii) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the coverage reduced, until thirty(30)days after written notice is given to City." (iii) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." (c) Certificates of Insurance. Property Owner shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. (d) Non-limiting. Nothing in this Section shall be construed as limiting in any way, any indemnification provision contained in this Agreement, or the extent to which Property Owner may be held responsible for payments of damages to persons or property. 7 Section 15. No Third Party Beneficiar Right s. 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. Severability. Every provision of this Maintenance Agreement is and shall be construed to be a separate and independent covenant. Without limiting the generality of the foregoing, if any provision of this Maintenance Agreement is found to be invalid or unenforceable for any reason,then the remainder of this Maintenance Agreement shall not be affected and shall be enforced to the extent permitted by law and the parties shall negotiate in good faith for such amendments to this Maintenance Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. Section 20. Counterparts. This Maintenance Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. Section 21. Authority. The persons executing this Maintenance Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Maintenance Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Maintenance Agreement. 8 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 sixty (60) days following the execution of this Maintenance Agreement. [Signatures Follow On Next Page] 9 AGREEMENT OF PROPERTY OWNER FOR PROVISION OF LANDSCAPE MAINTENANCE SERVICES FOR CITY IMPOSED LANDSCAPE 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 HSB LAND, L.P., a California limited partnership By: By:Hillwood Operating, L.P., FRED WILSON, City Manager a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, SEAL its general partner ATTEST: By: RACHEL CLARK, City Clerk John M. Magness Senior Vice President Approved as to Form: I & JAMES F. PENMAN, City Attorney i I 10 Consent of Lender WELLS FARGO BANK,NATIONAL ASSOCIATION ("Agent"), hereby consents to and subordinates that certain Deed of Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated July 20, 2005, and recorded on August 2, 2005 as Document No.2005-0558862, as modified by document recorded on January 31, 2006 as Document No. 2006- 0069269 in the Official Records of San Bernardino County, California, to this Maintenance Agreement. WELLS FARGO BANK, NATIONAL ASSOCIATION, as agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions identified in an Intercreditor Agreement executed by Agent and such Lenders By: J. Kent Howard Senior Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: J. Kent Howard Senior Vice President STATE OF TEXAS § § ss. COUNTY OF DALLAS § This instrument was ACKNOWLEDGED before me on , 2007, by J. Kent Howard, the Senior Vice President of Wells Fargo Bank,National Association, a national banking association, on behalf of said association, as the Agent for and on behalf of Wells Fargo Bank, National Association and any and all other financial institutions (collectively, "Lenders") identified in an Intercreditor Agreement executed by Agent and such Lenders. [SEAL] My Commission Expires: Notary Public, State of Texas Printed Name of Notary Public 11 EXHIBIT "A" PROPERTY DESCRIPTION (See Attached) 12 Now " SHEET 1 OF 3 EXHIBIT "`A" LEGAL DESCRIPTION ° THE PROPERTY LOTS 10 THROUGH 20 INCLUSIVE, AND A PORTION OF LOT 9 OF TRACT NO. 2228, VALLEY TRUCK FARMS NO. 4, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 31, PAGE 95 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, TOGETHER WITH PORTIONS OF LOTS 1 THROUGH 11 INCLUSIVE, OF TRACT NO, 2980, PETER HELD'S SUBDIVISION, AS PER MAP RECORDED IN BOOK 40, PAGE 50 OF MAPS,AND PORTIONS OF LOTS 11 AND 12, BLOCK 12 OF THE SAN BERNARDINO RANCHO, AS PER MAP RECORDED IN BOOK 7, PAGE 2 OF MAPS, BOTH IN THE ° OFFICE OF SAID COUNTY RECORDER, DESCRIBED AS FOLLOWS: COMMENCING AT A POINT ON THE CENTERLINE OF CENTRAL AVENUE, DISTANT THEREON NORTH 890 43'27"EAST, 109.12 FEET FROM THE CENTERLINE OF VALLEY VIEW AVENUE, AS SHOWN ON SAID TRACT NO. 2980; THENCE SOUTH 000 28' 38' WEST, 30.33 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 900.00 FEET, THENCE SOUTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 0°52' 12"AN ARC LENGTH OF 13.67 FEET TO A POINT ON THE SOUTHERLY LINE OF PARCEL NO. 1 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 22, 1964 IN BOOK 6256, PAGE 928, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER, SAID SOUTHERLY LINE BEING PARALLEL WITH AND 44.00 FEET SOUTHERLY OF SAID CENTERLINE OF CENTRAL AVENUE; THENCE ALONG SAID o SOUTHERLY LINE, NORTH 89° 43' 27" EAST, 68.12 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 450 57' 37" WEST, 34.17 FEET TO THE BEGINNING OF A NON- TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 944.00 FEET AND BEING CONCENTRIC WITH SAID 900.00 FEET RADIUS CURVE, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS SOUTH 880 12' 13"EAST; THENCE SOUTHERLY ALONG SAID NON-TANGENT CURVE, THROUGH A CENTRAL ANGLE OF 100 55'04"AN ARC LENGTH OF 179.88 FEET; THENCE SOUTH 120 42' 51" WEST, 96.41 FEET, THENCE SOUTH 450 17'09"EAST, 5.31 FEET; THENCE SOUTH 12°42'51"WEST, 26.51 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 851.50 FEET; THENCE SOUTHERLYALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 57'46"AN ARC LENGTH OF 29.17 FEET,• THENCE SOUTH 68°45'05"WEST, 5.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 856.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 790 26' 12"EAST; THENCE SOUTHERLY ALONG SAID 856.00 RADIUS CURVE, THROUGH A CENTRAL ANGLE OF 110 02,04"AN ARC LENGTH OF 164.85 FEET; THENCE TANGENT TO SAID CURVE, SOUTH 00°28,16" EAST, 86.26 FEET; THENCE SOUTH 58°28' 16"EAST, 5.31 FEET,• THENCE SOUTH 000 28' 16" EAST, 55.48 FEET; THENCE SOUTH 570 31' 44" WEST, 5.31 FEET,• THENCE SOUTH 000 28' 16" EAST, 325.93 FEET, THENCE SOUTH 5° 28' 16" EAST, 5.71 FEET THENCE SOUTH 000 28'16-EAST, 57.70 FEET; THENCE SOUTH 510 31'44"WEST, 5.71 FEET,' THENCE SOUTH 000 28' 16" EAST, 33.05 FEET TO THE SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980; THENCE ALONG SAID SOUTHERLY LINE OF SAID LOT 11 OF TRACT NO. 2980 AND THE SOUTHERLY LINE OF SAID LOT 11, BLOCK 55 OF RANCHO SAN BERNARDINO, NORTH 890 50' 45" EAST, 829.87 FEET TO THE NORTHWEST CORNER OF SAID LOT 20; THENCE ALONG THE BOUNDARY OF SAID LOTS 10 THROUGH 20 OF TRACT NO. 2228, SOUTH 000 36'15"EAST, 505.43 FEET, SHEET 2 OF 3 EXHIBIT "A" LEGAL DESCRIPTION THE PROPERTY NORTH 890 53' 27" EAST, 78.13 FEET, NORTH 860 44' 54" EAST, 1022.61 FEET AND NORTH 000 33' 48" WEST, 50.06 FEET TO A LINE PARALLEL WITH AND 50.00 FEET NORTHERLY, MEASURED AT RIGHT ANGLES, FROM THE MOST SOUTHERLY LINE OF SAID LOT 9; THENCE ALONG SAID PARALLEL LINE AND ITS EASTERLY PROLONGATION, NORTH 860 44' 54"EAST, 39.89 FEET TO THE WESTERLY LINE OF CLEVENGER DRIVE (60.00 FEET WIDE) AS PRESENTLY EXISTS AT THE DATE OF RECORDATION OF THIS DOCUMENT THENCE ALONG SAID WESTERLY LINE THE FOLLOWING TWO (2) COURSES: 1) NORTH 001 32' 19" WEST, 35.14 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET; 2) NORTHERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 000 52' 08"AN ARC LENGTH OF 14.71 FEET, THENCE NORTH 360 47' 07" WEST, 7.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 965.50 FEET AND BEING CONCENTRIC WITH SAID 970.00 FEET RADIUS CURVE, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS NORTH 88°12'53"EAST; THENCE NORTHERLY ALONG SAID 965.50 FEET CURVE, THROUGH A CENTRAL ANGLE OF 40 22' 54"AN ARC LENGTH OF 73.83 FEET; THENCE NORTH 280 49'59"EAST, 7.81 FEET TO SAID WESTERLY LINE, BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE WESTERLY AND HAVING A RADIUS OF 970.00 FEET, A RADIAL LINE TO SAID BEGINNING OF CURVE BEARS, NORTH 830 27' 19" EAST; THENCE ALONG SAID WESTERLY LINE THE FOLLOWING FOUR (4) COURSES: 1) NORTHERLY ALONG LAST SAID CURVE, THROUGH A CENTRAL ANGLE OF 10 02' 12"AN ARC LENGTH OF 17.55 FEET, 2) TANGENT TO SAID CURVE, NORTH 07°34,53" WEST, 79.60 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE EASTERLY AND HAVING A RADIUS OF 1030.00 FEET,• 3) NORTHERLY ALONG SAID CURVE, - THROUGH A CENTRAL ANGLE OF 60 51' 20" AN ARC LENGTH OF 123.24 FEET; 4) NORTH 000 43' 33" WEST, 42.20 FEET TO THE INTERSECTION OF A LINE PARALLEL WITH AND 30.00 FEET WESTERLY, MEASURED AT RIGHT ANGLES, FROM THE WESTERLY LINE OF LOT 13, BLOCK 55 OF SAID RANCHO SAN BERNARDINO, AS SHOWN ON TRACT NO. 2896, AS PER MAP RECORDED IN BOOK 40, PAGES 47 AND 48 OF MAPS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32'15" WEST, 111.58 FEET; THENCE NORTH 45-12'29"WEST, 6.40 FEET, THENCE NORTH 000 32' 15"WEST, 60.66 FEET; THENCE NORTH 440 07' 59" EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, THENCE, NORTH 000 32' 15" WEST, 355.24 FEET, THENCE NORTH 450 12' 29" WEST, 6.40 FEET; THENCE NORTH 000 32' 15" WEST, 60.67 FEET; THENCE NORTH 44°07'59"EAST, 6.40 FEET TO SAID PARALLEL LINE OF LOT 13; THENCE ALONG SAID PARALLEL LINE OF LOT 13, NORTH 000 32' 15" WEST, 245.13 FEET TO THE SOUTH LINE OF THE NORTH 246.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID SOUTH LINE, SOUTH 890 43'27"WEST, 90.00 FEET TO THE WEST LINE OF THE EAST 120.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO; THENCE ALONG SAID WEST LINE, NORTH 000 32' 15" WEST, 60.00 FEET TO THE SOUTH LINE OF THE NORTH 186.00 FEET OF SAID LOT 12, BLOCK 55 OF RANCHO SAN BERNARDINO, THENCE ALONG SAID SOUTH LINE OF THE NORTH 186.00 FEET, NORTH 890 43' 27" EAST, 90.00 FEET TO SAID PARALLEL LINE OF LOT 13, ALSO BEING THE WESTERLY LINE OF PARCEL NO. 2 OF GRANT OF EASEMENT TO THE COUNTY OF SAN BERNARDINO, RECORDED OCTOBER 30, 1964 IN BOOK 6262, PAGE 458, OF OFFICIAL RECORDS, IN THE OFFICE OF SAID COUNTY RECORDER; THENCE ALONG THE BOUNDARY OF LAST SAID GRANT OF EASEMENT THE FOLLOWING TWO(2) SHEET 3 OF 3 EACH/B/T "A" LEGAL DESCRIPTION THE PROPERTY COURSES: 1) NORTH 00° 32' 15" WEST, 163.34 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 20.00 FEET 2) NORTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 890 44'18"AN ARC LENGTH OF 31.32 FEET TO THE SOUTH LINE OF PARCEL NO. 1 OF i LAST SAID GRANT OF EASEMENT; THENCE TANGENT TO SAID CURVE ALONG SAID SOUTH LINE OF PARCEL NO. 1 AND ITS WESTERLY PROLONGATION, SOUTH 890 43' 27" WEST, 318.42 FEET; THENCE SOUTH 420 43' 27" WEST, 6.15 FEET, THENCE SOUTH 89°43' 27" WEST, 49.97 FEET; THENCE NORTH 43° 16' 33" WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION, THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43'27" WEST, 564.04 FEET; THENCE SOUTH 520 13' 27" WEST, 7.39 FEET, THENCE SOUTH 890 43'27"WEST, 71.45 FEET, THENCE NORTH 520 46'33"WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43'27-WEST, 148.42 FEET,• THENCE SOUTH 520 13'27"WEST, 7.39 FEET; THENCE SOUTH 890 43'27"WEST, 80.74 FEET, THENCE NORTH 520 46' 33" WEST, 7.39 FEET TO SAID WESTERLY PROLONGATION, THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 89° 43' 27" WEST, 238.86 FEET; THENCE SOUTH 420 43'27"WEST, 6.15 FEET; THENCE SOUTH 890 43'27"WEST, 49.97 FEET; THENCE NORTH 430 16' 33" WEST, 6.15 FEET TO SAID WESTERLY PROLONGATION; THENCE ALONG SAID WESTERLY PROLONGATION, SOUTH 890 43' 27"WEST, 261.45 FEET TO THE TRUE POINT OF BEGINNING. CONTAINING:2,634,738 SQUARE FEET OR 60.485 ACRES MORE OR LESS. EXHIBIT"B"ATTACHED HERETO AND BY THIS REFERENCE MADE A PART HEREOF. DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION. IC�12 -o, DATE: NL LAN —P— -i�J. D. aLZEY AV P.L.S. No. 2767 c�G'S EL��F�,`^ REG. EXP. 06130108 >• .c a N0. 2767 N:2557IESM712557 LMD.doc *tll EXP. 06/30/08 Last Update:10/12107 OF CA��F� SCA LE:1"=300' EXH IB I T "A —1 f SHEET 1 OF 2 _THE PROPERTY T1 P.O.C. T2 T.P.O.B. NOTE.' T5 C 1 -- rT _._ - T - --- - ----- 4-- SEE SHEET 2 OF 2 FOR (RAD) CURVE AND TANGENT TABLES. 44�^ �Q U AIL:P.O.C. __ I T.P.O.B. CENTRAL A VH.. T1 � c000 N � N O 00(D Lo clo T5 �/ T2--- - (RAD) T61 T57 7 T53 79 T45 i "I "' I T59 T55 T51 T47 ;� W T43 00 I I N N �\ T8 ( BLOCK 55 RANCHO SAN I BERNARDINO � T41; Q O T10 = C4 LOT4 ( I o v 44' < CS LOT 5 t T (RAC 1 30' T12 LOT 6 o I I T39 d T 13 :! m:'n� LOT 1 1 I LOT 1 2 ~ T3�7 T15 LOT 7 w I W wI LOT 8 — 11 mJ _ c0 � LOT9 `O1„ :il 44' ~ - - Z II I M.B. 7 / 2 V LLJ a LOT 1O— >��f� 1 `� T35 T 1 r° — I I ~ T33 Z T 1 LOT T32 w T20 N 89'50'45" E 829.87' � — r- -T — T- �- oll Z Li TRACT ND. 2223, VALLEY TRUCIC FARMS No. I4, �.B. 95I C9 v Idlololol � l 0 I I 1 I 1 � 1 � I � 1 .� I � 1 T30 04 N I °_' I m I ^ I m I i o ( T29 BRAD)--�C8 C, I o I p l o I o l 0 1 r C7 T26 i -j I I I - -- ----- ---T23---- ' I T27 (RAD) I T24 C6 - - - - - - - - - � — r22 I I I �--_ T25 N 86'44'54" E 1022.61' o AREA: NORMAN ROAD M CONTAINS 2,634,738 SO. FT. --i- 60.485 ACRES f SURVEYOR.' E l Np sG PREPARED UNDER THE SUPERVISION OF �c`� O' <> o A ,c O Thienes Engineering Inc. NO. 2767 70 Q CML ENGINEERING •LAND SURVEY/NG EXP. 06/30/08 Q 14349 f7RE5TONE BOULEVARD D. EL Z Y LA M/R4pq, CAUFORNG4 90638 DATE ��ql PH, 14)521-140811 FAX(714J511-417J P.L.S. NO. 2767 REG. EXP. JUNE 30, 2008 OF CAL mono EXH/B/T 'YA -1� SHEET 2 OF 2 THE PROPERTY TANGENT TABLE TANGENT TABLE.' NUMBER DISTANCE BEARING NUMBER DISTANCE BEARING TI 109. 12' N 89'4327" E T35 6.40' N 44'0759" E T2 30.33' N 00'2838" W T36 J55.24' N 00'J2'15" W T3 68. 12' N 89'4J27" E T37 6.40' N 45'12'29" W T4 34. 17' N 45'57:37" E T38 60.67' N 00'.32'15" W T5 944.00' N 88'12'13" W T39 6.40' N 44'0759" E T6 96.4 1' N 12'42'51" E T40 245. 13' N 00'32'15" W T7 5.31' N 45'17'09" W T41 90.00' N 89'4J27" E T8 26.5 1' N 12'4251" E T42 60.00' N 00'J2'15" W T9 851.50' N 771709" W T43 90.00' N 89W27" E T 10 5.30' N 68'45'05" E T44 16.3 J4' N 00'J2'15" W Tl1 856.00' N 7926'12" W T45 318.42' N 89'4327" E T72 86.26' N 00'28'16" W T46 6. 15' N 42'4J27" E T73 5_31' N 58'28'16" W T47 49.97' N 89'4327" E T14 55.48' N 00'28'16" W T48 6. 15' N 43'16"33" W T15 5.31' N 57'31'44" E T49 564.04' N 89'4J27" E T16 325.93' N 00'28'16" W T50 7.39, N 52'13 27" E T17 5.71' N 52 28'16" W T51 71,45' N 89'43 27" E T18 57.70' N 00'28'16" W T52 7.39' N 52'4633" W T19 5.71' N 51'31'44" E T53 148.42' N 89'43 27" E T20 33.05' N 00'28'16" w T54 7.39' N 52'13 27" E - T21 505.43' N 00'36'15" W T55 80.74' N 89'4327" E T22 78. 13, N 89'5J27" E T56 7.39' N 52'46:33" W T23 50.06' N 00'33'48" W T57 238.86' N 89'43 27" E T24 39.89' N 86'4454" E T58 6. 15' N 42'4327" E T25 35. 14' N 00'32'19" W T59 49.97' N 89'4J27" E T26 7.81' N 36'47'07" W T60 6. 15' N 43'16:33" W T27 965.50' N 88'12 53" E T61 261.45' N 89'4J27" E T28 7.81' N 28'49 59" E T29 970.00' N 83'27'19" E T30 79.60' N 07'34 53" W T31 42.20' N 00'43 33" w CURVE TABLE T32 111.58' N 00'J2'15" W T33 6.40' N 45'12 29" W NUMBER DEL TA RADIUS LENGTH T34 60.66' N 00'32'15" W Cl 0'52'12" 900.00' 1367' C2 13'11 29" 900.00' 207.21' C3 10'55 04" 944.00' 179.88' C4 1'5746" 851.50' 29. 17' C5 11'02'04" 856.DO' 164,85' C5 0'52'08" 970.00' 74.71' C7 42254" 965.50' 73.83' C8 1'02'12" 970.00' 17.55' C9 6'51'20" 1030.00' 12J.24' C70 89'44'18" 20.00' 31.32' SURVEYOR: ��pL Lost uoaoie:10/12/07 LAND N:\2557\ESMT\2557_LMD.d*9 PREPARED UNDER THE SUPERVISION OF- �c�`'�\O E L Thieves Engineering, lnc. N z� NO, 2767 CML ENGINEERING •LAND SURVEYING EXP. 06/30/08 Q I ;E . 14349 FIRESTONE BOULEVARD /DA D. ELL EY DATE \may LA MIRA , CAUFORNM 90638 P.L.S. NO. 2767 Q PPH(714)521-481t FAV14521-4173 RE C G. EXP. JUNE 30, 2008 \Fn EXHIBIT "B" PROPERTY OWNER MAINTENANCE AREAS The areas to be maintained will be landscaping and all appurtenances along portions of the easterly side of Lena Road that abut the Property, the southerly side of Central Avenue that abut the Property, the westerly side of Clevenger Road that abut the Property, and portions of the northerly side of Norman Road that abut the Property, as further depicted on Exhibit B-1. f T 13 EXHIBIT B-1 C9 Z �I i - I 30 z C M o 3�e ° c E y I o E W ti C N ci a a 0 U o�m Z_ > � U OU .. c R m E o CO Z 5 Z < 0 v<i o£. I a m y ac F` Z W — �' m H w �$� �y�T' _ E Woo g Q' V z Nr X05 'ss° E -" mwY Qom ° A Mdy Z n = `I a"c d t N E I5 m E Z W U d E"I ° u1 OU v opE i. lloc I VJOU > H MCI Z U E a�coj v z _ CO A < z 8 F LL- zm ^ zv < ° m 'oQd�U Ef�cr �w � < 4 < c„ Z ;i CL F-� 6 � w r aoe°mm F`N°�� u N Una uQ W h�l•M cY Q N w E o I o cl y c w E E m m° - o E.T o i o ml U1 z r r E W U U m Er 2 m vm o` m o o ° 5 0 o c o y% v m c c c _�_o 0 o p ir° /I Z o �`-1 .�c❑ r Z o:� w E e o m E er m U C7 �� m Yo a r x u E o E W m y Z m c " E ! ml o 2 U❑ v w.E xu m E a'U C UU 6n End CU © Al. i 000 O ® }\si t ® O D a = N e^ l7 i � U W a M oo z 0 Z f p Af !.w M O N J u o y U n \ I F us t tm,„h S O yC� I � ' 3/7N3nY M3N.t377Yi1 rNLL 5IX3J EXHIBIT "C" PROPERTY OWNER MAINTENANCE STANDARDS AND SAND FILTRATION UNIT MAINTENANCE STANDARDS The Property Owner hereby agrees to maintain the landscaping and sand filtration unit improvements located within the Property Owner Maintenance Areas identified in Exhibit `B"as required by this Maintenance Agreement. The Property Owner shall be solely responsible for all costs incurred in fulfilling its obligations under this Maintenance Agreement and, as between the City and the Property Owner, shall be responsible for any injury, damage or loss to any person or other properties caused by any activities of the Property Owner in the performance of its obligations under this Maintenance Agreement within the Property Owner Maintenance Areas so long as this Maintenance Agreement is in effect. The Property Owner shall maintain the landscaping and sand filtration unit 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 sand filtration unit maintenance within other City landscape assessment districts on file in the office of the City Engineer. All plantings shall be replaced at the sole cost and expense of the Property Owner as frequently as necessary as shall be reasonably determined to ensure the visual quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied, as applicable, pursuant to an irrigation schedule and at times of the day and for such durations to be determined based upon the season of the year. The following maintenance standards apply to the Sand Filtration Units located to the south of Building One. • The performance of the units shall be maintained as determined by the Water Quality Management Plan (WQMP) prepared on November 30'', 2006 by Thienes Engineering on file with the Development Services Department. • Dust control shall be mitigated using methods acceptable to the City Engineer. • Records of all inspections, maintenance and repairs are to be available upon request. • Any modifications are subject to City of San Bernardino approval. The City of San Bernardino Public Works Division shall be notified within 72 hours about any emergency repairs. • All maintenance will comply with Landscape Maintenance District and WQMP requirements. 15