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HomeMy WebLinkAbout22-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 Amendment to the Dept: Development Services Agreement to form a Landscape Maintenance District, & Resolution Ordering Work relative to Date: November 15,2007 proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057(Parcel Map No. 17375). File No. 14.40-148 MCC Date: November 19, 2007 Synopsis of Previous Council Action: 10/17/06—Tentative Parcel Map No. 17375 was approved,with conditions. 03/19/07—Resolution No. 2007-83 was adopted,directing the execution of an Agreement to form a Landscape Maintenance District, for the purpose of allowing the Parcel Map to be recorded. 03/22/07—Parcel Map No. 17375 was recorded. 07/02/07—Authorization was given to proceed with the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment Districts No. 1057,and Resolution of Intention No. 2007-209 was adopted. 08/20/07—Public Hearing was continued to 9/17/07. 09/17/07—Public Hearing was continued to 10/01/07. 10/01/07—Public Hearing was continued to 10/15/07. 10/15/07—Public Hearing was continued to 11/19/07. Recommended Motion: 1. That the public hearing relative to the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment Districts No. 1057 be closed. 2. That a resolution continued from October 19,2007,regarding the execution of a Maintenance Agreement be tabled. AND 3. Adopt resolutions(2) -(4/5 vote required for formation of LMD). Valerie C. Ross Contact person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report,Maps,Reso's. Ward: 6 $4,000(Processing fee paid by applicant) FUNDING REQUIREMENTS: Amount: $4,464(Estimated annual General Benefit amount) Source: (Acct. No.) 254-000-2301-6051 Assessment District (Acct. Description) Deposits/General Fund Finance: Council Notes: E3oa 2007— -2667- ` 6 /1-nfigr Q1 a7"ay e s 9 sf .de �oxs ill oz Rk- a eW XVrmcrc1 /off D7 +0o13 Agenda Item No. �l� 11 q 6 7 CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Public hearing—4:00 p.m., Resolution authorizing the execution of an Amendment to the Agreement to form a Landscape Maintenance District,& Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). BACKGROUND: On October 17, 2006, the Planning Commission approved Tentative Parcel Map No. 17375, located to the northeast of Cajon Boulevard and southeast of University Parkway. On November 3, 2006, Hillwood Investments, 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 future landscaping within slopes along portions of the easterly and westerly side of the overpass realignment of University Parkway (Lot `C') and also include the detention basin (Lot `D') on the southerly portion of Tentative Parcel Map No.17375. The detention basin will consist of native growth and will protect the parcels within the district from flood damage and is a direct benefit to this development. Maintenance in the detention basin will consist of periodic cutting of native vegetation and removal of debris and silt as needed. Parcel Map No. 17375 consists of 7 commercial parcels and 3 lettered lots. The annual cost of maintenance and incidentals will be spread across these 7 parcels while the lettered lots will be nil assessed due to not receiving any benefit from the improvements. 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 the retention basin, which on file 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, portions of the landscaping along the overpass realignment of University Parkway has been deemed to be of a general benefit. The general benefit portion of the annual cost of maintenance is estimated to be $4,464.81, and cannot be assessed to the District. This amount will need to be paid from the general fund or other non-district fund source. When the Assessment District takes over the maintenance, a budget transfer for the General Benefit amount will be requested by the Parks, Recreation and Community Services Department, into the Assessment District fund, when the maintenance contract is awarded. As set forth in the Engineer's Report, the estimated total annual assessment, including all incidental expenses, is $64,774.15. 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 $927.89 to $23,672.31 per parcel. 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. On March 19, 2007, Resolution No. 2007-83 was adopted authorizing the execution of an Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Staff Report— continued Consent to Levy of Special Assessments Thereunder, with Hillwood. The Agreement was recorded with the County Recorder,on March 28, 2007. Initially, Hillwood wanted to include the large detention basin on the south end of the project into a "Default Assessment Agreement", as set forth in the Agreement that was recorded, to allow Hillwood to maintain the basin at their cost. In the event of default in the maintenance, the City would assume the maintenance after the second default. On July 2, 2007, Resolution of Intention No. 2007-209 was adopted, setting a public hearing for August 20, 2007, and preliminarily approving the Engineer's Report. The public hearing was continued to September 17, 2007, and October 1, 2007, and October 15, 2007, and November 19, 2007, because the Default Assessment Agreement was not in final form. Hillwood no longer wishes to enter into a Default Assessment Agreement, thus allowing the City, through an Assessment District, to maintain the basin. Since the recorded Agreement requires Hillwood to enter into a Default Assessment Agreement, it will need to be amended. The attached resolution authorizes the City Manager to execute the Amendment to the Agreement with Hillwood for the purpose of removing the language that is no longer pertinent. 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 resolution amending the Agreement requesting Formation of Landscape Maintenance District 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 $4,000 processing fee. Estimated costs of annual maintenance in the amount of $64,774.15, 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 $4,464.81, deemed to be a general benefit, will need to be paid from the General Fund, for the landscape maintenance portion of the District. RECOMMENDATION: Staff recommends that the public hearing be closed and the attached resolutions be adopted. / LOCATION OF PROPOSED ASSESSMENT d. DISTRICT NO. 1057 A e F 18 /j B� 40th St. 99a i Marshall Blvd. d Li i o 10 Highland Ave. 3 N 0 Base Line St. w y 9th St m 5th St. 0 Rialto Ave. m m 2 15 w MITI St. m 0 g210 Orange how Rd. F D t� VICINITY MAP p NO SCALE J CITY OF SAN BERNARDINO Proposed Landscape Maintenance DEVELOPMENT SERVICES DEPARTMENT Assessment District No. 1057 - ,y REAL PROPERTY SECTION Cajon Boulevard and University Parkway Indicates un-incorporated areas within City's Area (PM 17375) Sphere of Influence Created by: Ryan Sandoval Date:4/12/07 yiE on-I 8'; 61�i L SEFp d It {# EpF y E �2 N i y yy ]$ ■9* yEs A a yy y8 I INA 10 �W WOO gg � o 0W � S / Ufa g " d OVA al 4 Uo 3 cc w. _ Iil plO� �i� ale } d 1111S \.� � . 1 ffik III h all, 1 � / Z � Qz °0 .� �.. � W2 d � I W U V /UN� RSRY a it 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE AGREEMENT TO FORM A LANDSCAPE MAINTENANCE DISTRICT BETWEEN THE 4 CITY OF SAN BERNARDINO AND HSB I-215, LP, SE I-215, LP AND HILLWOOD 5 ENTERPRISES,LP,FOR THAT CERTAIN REAL PROPERTY GENERALLY LOCATED ON THE WEST SIDE OF I-215,NORTH OF SHANDIN HILLS GOLF COURSE,SOUTH 6 OF UNIVERSITY PARKWAY, AND EAST OF CAJON BOULEVARD, IN SAN BERNARDINO. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 8 OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 10 directed to execute on behalf of the City, an Amendment to the Agreement between the City and 11 12 SE I-215,LP and HSB I-215, LP,each a California Limited Partnership,and Hillwood Enterprises, 13 LP,a Texas Limited Partnership,relating to certain real property generally located on the west side 14 of I-215, north of Shandin Hills Golf Course, south of University Parkway, and east of Cajon 15 Boulevard, in San Bernardino. A copy of the Amendment to the Agreement is attached as Exhibit 16 "1"and incorporated herein by reference. 17 18 SECTION 2. Authorization to execute the Amendment to the said Agreement is rescinded 19 if the parties fail to execute it within 60 days of the passage of this Resolution. 20 21 22 23 24 25 26 27 28 1 ,15/07 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE AGREEMENT TO FORM A 1 LANDSCAPE MAINTENANCE DISTRICT BETWEEN THE CITY OF SAN BERNARDINO AND HSB I-215, LP, SE I-215, LP AND HILLWOOD ENTERPRISES, LP, FOR THAT CERTAIN REAL PROPERTY 2 GENERALLY LOCATED ON THE WEST SIDE OF I-215,NORTH OF SHANDIN HILLS GOLF COURSE, SOUTH OF UNIVERSITY PARKWAY,AND EAST OF CAJON BOULEVARD,IN SAN BERNARDINO. 3 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 6 Common Council of the City of San Bernardino at a meeting thereof 7 held on the day of 120 ,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 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 25 Approved as to Form: 26 27 By: JAMES F. PENMAN, City Attorney 28 11/15/07 2 PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: AND WHEN RECORDED MAILTO: City of San Bernardino City Clerk 300 N. "D" Street - San Bernardino, CA 92415 APN: FEE EXEMPT PURSUANT TO SPACE ABOVE FOR RECORDER'S USE ONLY GOV.CODE SECTION 27383 AMENDMENT TO AN AGREEMENT DOC#:2007-0192179 Title of Document THIS COVER SH EET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION (53.DDAdditional Recording Fee Applies) ;Rev.ww:-ay ,VJG:]:S::7S txatr::lr 5^=cP Exhibit "1" AMENDMENT TO AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER I This Amendment to Agreement is made as of this day of I 2007, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "City", and HSB I-215, LP, SE I-215, LP AND HILLWOOD ENTERPRISES, LP, hereinafter collectively referred to as"Owner". WHEREAS, the parties have previously executed an Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder, recorded March 28, 2007, as Document No. 2007-0192179, in the County Recorder's Office, San Bernardino County, a copy of which is attached and incorporated herein as Exhibit "A", for that certain property generally located on the west side of I-215, north of Shandin Hills Golf Course, south of University Parkway, and east of Cajon Boulevard, in the City of San Bernardino; NOW THEREFORE, the parties hereby mutually agree to an amendment to said Agreement as follows: I. Section 4 (ii)of said Agreement is hereby deleted. 2. All other terms and conditions of said Agreement shall remain in full force and effect. (Signatures on the following page.) 1 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year as first written above. CITY: CITY OF SAN BERNARDINO Date: By: EXHIBIT COPY FRED WILSON, City Manager ATTEST: RACHEL CLARK, City Clerk Approved as to Form: EXHIBIT COPY JAMES F. PENMAN, City Attorney (Signatures continued on the following page.) 2 OWNER: HSB I-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member By: HGI Group, L.P., A Texas limited partnership, its general partner By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general partner Date: By: EXHIBIT COPY John M. Magness Senior Vice President t (Signatures continued on the following page.) i SE I-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member i By: HGI Group, L.P., A Texas limited partnership, its general partner By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, j its general partner Date: By: EXHIBIT COPY John M. Magness Senior Vice President t HILLWOOD ENTERPRISES, L.P., a Texas limited partnership i By: AHB, LLC, a Texas limited liability company, its general partner Date: By: EXHIBIT COPY John M. Magness Senior Vice President 3 i 3 !j1 i i 1 1 A Y flacorded In WOW Reeorde. County of San Bernardino 3/2812007 12:04 PM LARRY WALKER 2007-83 ,.►ew" 03 � Auditor/Controller - Recorder P Counter Recording Requested by And When Recorded Mail To: Doe#: 2007-0192179 Titles: t Pages: 9 City lop an Bernardino II' II,�IIII�IIII�N�III IIIIIINII��IIIIII PAID se.eeDecelo meet Services Department I j Division of Public Works Attn: City Engineer 300 North "D"Street San Bernardino, Califomia 92418 AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER THIS AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER (this "Agreement") is dated as of March _, 2007, and evidences the request of HSB 1-215, L.P. and SE I-215, L.P., each a Califomia limited partnership, and Hillwood Enterprises, L.P., a Texas limited partnership (collectively, "Owner'), the owner of the property more fully described in Exhibit "A" attached hereto (the `Property"), for the Mayor and Common Council of the City of San Bemardino (the "City'), to proceed without further notice to Owner, and its successors and assigns, to form a special landscape maintenance assessment district for the Property for the purposes set forth below in this Agreement. OWNER HEREBY SUBMITS THIS AGREEMENT TO THE CITY AND DECLARES, COVENANTS AND AGREES AS FOLLOWS: Section 1. As used in this Agreement the words "Assessment District Areas"mean and refer to the portions of the Property described as follows: 0) Lot C. I (ii) Lot D. (iii) The 20-foot Stlorm drain and access easement extending southeasterly from the most easterly cul-de-sac at the end of Lot B to Lot D(together, the"Stone Drain Easement Area"). (ie) Lot C, Lot D end the Stone Drain Easement Area are shown on the copy of page 8 of I -t• F: EMPEWPArwlnpmem Services%l endscYpe lramtc,wce-3-IS 47 FINAL doe Exhibit "A" Parcel Map No. 17375 that is part of the attached Exhibit A-1. Owner is the property owner of Lot D and the Storm Drain Easement Area. The City is the j property owner of Lot C. The City joins in this Agreement for the sole purpose of evidencing its consent to this Agreement for the purpose of the inclusion of Lot C as part of the Assessment District Areas and shall have no obligation for the payment of any assessments referenced in this Agreement or by the Landscape District (hereinafter defined). Owner has agreed to offer to dedicate Lot D to the City together with the storm drain easements that carry storm water to Lot D as shown on Exhibit A-1. Section 2. This Agreement is delivered to the City in accordance with the provisions of City of San Bernardino Municipal Code Section 12.90.040 C.S., and other applicable law including, without limitation, Streets and Highways Code Section 22500, et seq., in order to satisfy certain conditions of the approval by the City for the development, improvement and use of the Property under City Development Permit II No. 05-18, dated October 17, 2006, as the same relates to the formation a landscape maintenance assessment district (D.P. II No. 05-18: Public Works Division Condition No. 2(c) and (w)) for the Property for the purpose of providing for the maintenance and servicing of public landscaping improvements within the Assessment District Areas. The City accepts this Agreement in full and complete satisfaction of DP II No. 05-18, Public Works Department Condition No. 2(w). Section 3. (a) Owner for itself and its successors and assigns hereby requests the City to initiate proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 3(b) below (the "Landscape District') for the maintenance and servicing of public landscaping improvements on the portion of the Properly situated within the Assessment District Areas. The Landscape District may only include the Assessment District Areas for the purposes set forth in Section 3(b) below and the Property for the purposes of the levy and collection of the assessment as may hereafter be ordered by the City under and subject to Section 4 below. (b) Within the Assessment District Areas, the Landscape District and the special assessments as may hereafter be levied by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any planting of landscaping within the Assessment District Areas approved by the City and installed within the Assessment District Areas by the owner of the Property in accordance with D.P. lI No. 05-18. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by any owner of the Property in the Assessment District Areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs of preparation of engineering reports and the collection of the assessment. -2- (c) Owner for itself and its successors and assigns hereby waives its right to protest the formation of the Landscape District and further waives any right to object to the performance by the City of any of the maintenance or furnishing of services described in Section 3(b) under City Municipal Code Section 12.90, et seq., or other applicable law, subject to the provisions of Section 4 below. Owner for itself and its successors and assigns hereby waives any requirement for giving or receipt of notice from the City with respect to the formation of the Landscape District or, except as provided in Section 4(ii), the ordering or performance of any maintenance or furnishing of services in the Assessment District Areas described in Section 3(b). Section 4. Owner for itself and its successors and assigns hereby waives right to protest the amount of any assessment which may hereafter be levied by the City on the Property for the Landscape District under City Municipal Code Section 12.90, et seq., or other applicable law including, without limitation, Streets and Highways Code Section 22620, et seq., in any year for the performance by the City of any maintenance or services in the Assessment District Areas, and hereby consents to the levy of a special assessment on the Property therefor, subject to the following conditions: (i) the City shall have completed the formation of the Landscape District as evidenced by the recordation of an assessment district boundary map which conforms with this Agreement and the requirements of Streets and Highways Code Section 3111 or filed a resolution confirming the formation of such Landscape District and assessment under other applicable law, including, without limitation, Streets and Highways Code Section 22641; (ii) pursuant to a Default Assessment Agreement by and between the City and Owner in such form as is typically used by the City, subject to City approval at its discretion, in the event Owner or any then current owner of the Property shall have failed to perform the maintenance or furnishing of services described in Section 3(b) within the Assessment District Areas or any portion thereof following at least sixty(60) days prior written notice from the City ordering Owner or the then current owners of the Property to perform the maintenance or furnishing of services described in such notice (subject to prudent seasonal planting practices); and (iii) the amount of the assessment levied by the City for maintenance or furnishing of services it may perform under subparagraph (ii), above, shall not exceed the lesser oF. (A) the actual costs paid by the City for the performance of such maintenance and servicing, plus a reasonable administrative charge; or: (B) Fifty Cents ($0.50) multiplied by the number of square feet within the Assessment District Areas on which the City performed the maintenance or furnishing of services described in the notice, adjusted as of July I of each year following the recordation of this Agreement by an amount equal to the change(if any)over the twelve (12)months preceding the last such adjustment in the Consumer Price Index (all items) all urban consumers (with a base 1982 = 100) for the San Bernardino-Riverside metropolitan areas as published by the United States Department of Labor, Business of Labor Statistics. 1 -3- i i 3 I Section 5. Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be levied by the City under Section 4, at the same time and in the same mariner as county property taxes are collected and all the laws providing for the collection and enforcement of county property taxes shall apply to the collection and enforcement of any such assessments Section 6. This Agreement shall not be withdrawn. modified or amended by the owner of the Property without the prior written consent of the City,which consent the City may grant or withhold in its sole and absolute discretion and such consent of the City shall be evidenced by an instrument in recordable form. THIS AGREEMENT has been executed by the authorized officers of Owner and the City on the date indicated next to the signatures of each of them. CITY: CITY OF SAN BERNARDINO, CALIFORNIA By: atric J. Moms, r i Date: March20 2007 Approved as to Form: des F. Penman, ity Attomey Date: March 2007 r (Signatures continued on the following page.) i I Ji t t i -4- r 3 OWNER: HSB 1-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership, its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability-company, its general Pont By :t Name: Title: Date: March ZY,2007 (Signatures continued on the following page.) -5- SE I-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership, its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general paper . By: Name:' Title: t !- Date: March?7, 2007 HILLWOOD ENTERPRISES, L.P., a Texas limited partnership By: AHB, LLC, a Texas limited liability company, its general partner , 4 .I By: �. Name: :'s"h r' t. \a. . Title: e:utr L.�c. Yir .uEt.r� Date: 1\1 av A\ ;'7. a -6- CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) )SS. County of San Bernardino ) On March 27,2007, before me, Marissa L.Johnson,Notary Public,personally appeared John M.Magness , ❑X personally known tome ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the MAaKfALJO11n50N person(s), or the entity upon behalf of which the 6Commlubn f 161!640 person(s)acted,executed the instrument. Notary Pubk-California Tan bmardno Counlr WITNESS my hand and official seal. ,MV Comm.�a 001 9,200! L�ll1a:2��_ . IJIIGrr2Sl)'1 Signature of Notary Public ****+*+++++++++++*+*++++ OPTIONA I. *++*++++++*++**+++++++++*+++ Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder Document Date: March 27,2007 Number of Pages: Six(6)plus exhibits Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: ❑ Individual Top of rhumb here ❑ Corporate Officer—Title(s): ❑ Partner- 13 Limited ❑ General ❑ Attomey-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: EXHIBIT A Parcels 1, 2, 3, 4, 5 and 6 of the propegy that is the subject of City of San Bernardino Parcel Map No. 17375 recorded at *A'6fficial Records, San Bernardino County, California. A copy of Page 8 of Parcel Map No. 17375 showing Lot C, Lot D and the Storm Drain Easement Area is attached as Exhibit A-1. Exhibit A EXHIBIT A-1 et ' _ o ii{ YII `ii i1 a'aYt zfr >«vaxa{ QG` dEYr ' t 5.e: -R-t xCa:ee{a3:: ={9i:itRS;aya: •i B� .s5 {}� x��i°¢ lO�•i �! al. °"ti A 4tm•i<. a e?aR:xRi:iaiaaz:: '. to � .. 1 i •alli tti-. pig,' U ay�h'a� _YR / 1/ E � .. Qt g Y �I I I J II y,•t ��,x'xe. �, i Y :6'�i Yl�i � :ii°:'t ��i�=:aiii:: 374 • p, �IYYa Y' � 1. R W•I �l�.Y N� II \�RV•,._� i '�nf Y ?55..':SS?SS!:a3t..e a I Up!p E{l"i n� 'ya, I" I i tPa{a^,:x]apY{tPVxO �I ' I �� Qe jj[ �i i q WY le. � RRt'4tiax uiai ii?ir9 ' u 9 i{>aei;`aSp ii ! 1 ° Y [ t �Ila �i / aauaeavaaxuuue � II 6:EYVav:vv:a.e.et; S I t x>• ,Y) ' ' Ii6 s e`e=':Sit J � 1��1 y�s� ¢P ° d�� C Q� 1 1 'I ieiiiihbskiii's:':e4arSk j I is •I Yaa'itrx ' p;n�era 1{ 1 � s P !' !° '` �- f': I [ j� aa��eovRRaaara�ac i y 1 xxxeAeeO � gP •„`^ I� � �y�yR $ dtlp.IlevY'�µ ata .n j m R [ .. �� O ,,(( JY V iRT^14>a:xpF^Rriiii2 '!^ �� l�g•, >,,,1H" e a �'Ri S'� � a+.e.zh,>a'axar si:: ' 3 /P{ I�' � q pI I � I r 'LatRRYribbiiiil{''iFtat{t { a �`-c 'p °• �\°o e 1 OP ��I �1 pp q?iei•eypiaie:ea:c4ak N 41 $se as r !'�,e it S 41 R hpa •i-i3ig {i! : J i COPY 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE AGREEMENT TO FORM A LANDSCAPE MAINTENANCE DISTRICT BETWEEN THE 4 CITY OF SAN BERNARDINO AND HSB I-215, LP, SE 1-215, LP AND HILLWOOD 5 ENTERPRISES,LP,FOR THAT CERTAIN REAL PROPERTY GENERALLY LOCATED ON THE WEST SIDE OF I-215,NORTH OF SHANDIN HILLS GOLF COURSE,SOUTH 6 OF UNIVERSITY PARKWAY, AND EAST OF CAJON BOULEVARD, IN SAN BERNARDINO. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 8 OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 10 directed to execute on behalf of the City,an Amendment to the Agreement between the City and 11 12 SE I-215,LP and HSB I-215, LP,each a California Limited Partnership, and Hillwood Enterprises, 13 LP,a Texas Limited Partnership, relating to certain real property generally located on the west side 14 of I-215, north of Shandin Hills Golf Course, south of University Parkway, and east of Cajon 15 Boulevard, in San Bernardino. A copy of the Amendment to the Agreement is attached as Exhibit 16 "1" and incorporated herein by reference. 17 18 SECTION 2. Authorization to execute the Amendment to the said Agreement is rescinded 19 if the parties fail to execute it within 60 days of the passage of this Resolution. 20 / 21 22 23 24 25 26 27 21 �' RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AMENDMENT TO THE AGREEMENT TO FORM A LANDSCAPE MAINTENANCE DISTRICT BETWEEN THE CITY OF SAN BERNARDINO AND HSB I-215, 1 LP, SE I-215, LP AND HILLWOOD ENTERPRISES, LP, FOR THAT CERTAIN REAL PROPERTY 2 GENERALLY LOCATED ON THE WEST SIDE OF I-215,NORTH OF SHANDIN HILLS GOLF COURSE, SOUTH OF UNIVERSITY PARKWAY,AND EAST OF CAJON BOULEVARD,IN SAN BERNARDINO. 3 4 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 5 5 Common Council of the City of San Bernardino at a meeting thereof 7 held on 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 16 JOHNSON 17 MCCAMMACK 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 . 'r S F. PENMAN, City Attorney 28 PLEASE COMPLETE THIS INFORMATION RECORDING REQUESTED BY: AND WHEN RECORDED MAILTO: City of San Bernardino City Clerk 300 N. "D" Street San Rernardino, CA 97.415 APN: FEE EXEMPT PURSUANT TO SPACE ABOVE FOR RECORDER'S USE ONLY GOV. CODE SECTION 27383 AMENDMENT TO AN AGREEMENT DOC#:2007-0192179 Title of Document F i THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION ($3.00 Additional Recording Fee Applies) jRev.&-00 a) UvvS:fDm ExaivCo e-S,1 e1) AMENDMENT TO AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER This Amendment to Agreement is made as of this day of , 2007, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "City", and HSB 1-215, LP, SE I-215, LP AND HILLWOOD ENTERPRISES, LP, hereinafter collectively referred i to as"Owner". i WHEREAS, the parties have previously executed an Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder, recorded March 28, 2007, as Document No. 2007-0192179, in the County Recorder's Office, San Bernardino County, a copy of which is attached and incorporated herein as Exhibit "A", for that certain property generally located on the west side of I-215, north of Shandin Hills Golf Course, south of University Parkway, and east of Cajon Boulevard, in the City of San Bernardino; NOW THEREFORE, the parties hereby mutually agree to an amendment to said Agreement as follows: 1. Section 4 (ii)of said Agreement is hereby deleted. 2. All other terms and conditions of said Agreement shall remain in full force and effect. i (Signatures on the following page.) G IN WITNESS WHEREOF, the parties have executed this Agreement the day and year as first written above. CITY: CITY OF SAN BERNARDINO Date: By: FRED WILSON, City Manager ATTEST: RACHEL CLARK,City Clerk Approved as to Form:p JADES F. PENMAN, City Attorney (Signatures continued on the following page.) 2 V OWNER: HSB I-215, L.P., I a California limited partnership By: HSB GP,LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member By: HGI Group, L.P., A Texas limited partnership, its general partner By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general partner Date: By: John M. Magness Senior Vice President (Signatures continued on the following page.) 3 © SE I-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member By: HGI Group, L.P., A Texas limited partnership, its general partner By: Hillwood Associates,L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general partner 0 Date: By: John M.Magness Senior Vice President HILLWOOD ENTERPRISES, L.P., a Texas limited partnership By: AHB, LLC, a Texas limited liability company, its general partner Date: By: John M. Magness Senior Vice President 4 recorded In Official records,County of San iferan nano 3/2812007 12:04 PM 2007—s3 LARRY WALKER es © ,�. Auditor/Controller — Recorder P Counter Recording Requested by And When Recorded Mail To: Doc#: 2007-0192179 Titles: 1 Pages: 9 City of Development Services r es Department I II IIII II IIILII III III III II I IIII PAID $e.00 Division of Public Works Attn: City Engineer 300 North "D" Street San Bemardino,Califomia 92418 AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER THIS AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING © FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER (this "Agreement') is dated as of March , 2007, and evidences the request of HSB I-215, L.P. and SE I-215, L.P., each a California limited partnership, and Hillwood Enterprises, L.P., a Texas limited partnership (collectively, "Owner"), the owner of the property more fully described in Exhibit "A" attached hereto (the `Property"), for the Mayor and Common Council of the City of San Bernardino (the "City"), to proceed without further notice to Owner, and its successors and assigns, to form a special landscape maintenance assessment district for the Property for the purposes set forth below in this Agreement. OWNER HEREBY SUBMITS THIS AGREEMENT TO THE CITY AND DECLARES, COVENANTS AND AGREES AS FOLLOWS: Section 1. As used in this Agreement the words "Assessment District Areas"mean and refer to the portions of the Property described as follows: 0) Lot C. (ii) Lot D. (iii) The 20-foot st rm drain and access easement extending southeasterly from the most easterly cul-de-sac at the end of Lot B to Lot D(together,the"Storm Drain Easement Area"). (iv) Lot C, Lot D a nd the Storm Drain Easement Area are shown on the copy of page 8 of © t F:\EMPENO\DevelopmentSemicm\Land pe Maimenance�J-IS-07 FINAL.doc Exhibit "A" II Parcel Map No. 17375 that is part of the attached Exhibit A-l. Owner is the property owner of Lot D and the Storm Drain Easement Area. The City is the property owner of Lot C. The City joins in this Agreement for the sole purpose of evidencing its consent to this Agreement for the purpose of the inclusion of Lot C as part of the Assessment District Areas and shall have no obligation for the payment of any assessments referenced in this Agreement or by the Landscape District (hereinafter defined). Owner has agreed to offer to dedicate Lot D to the City together with the storm drain easements that carry storm water to Lot D as shown on Exhibit A-1. Section 2. This Agreement is delivered to the City in accordance with the provisions of City of San Bernardino Municipal Code Section 12.90.040 C.S., and other applicable law including, without limitation, Streets and Highways Code Section 22500, et seq., in order to satisfy certain conditions of the approval by the City for the development, improvement and use of the Property under City Development Permit II No. 05-18, dated October 17, 2006, as the same relates to the formation a landscape maintenance assessment district (D.P. II No. 05-18: Public Works Division Condition No. 2(c) and(w)) for the Property for the purpose of providing for the maintenance and servicing of public landscaping improvements within the Assessment District Areas. The City accepts this Agreement in full and complete satisfaction of DP II No. 05-18, Public Works Department Condition No. 2(w). Section 3. (a) Owner for itself and its successors and assigns hereby requests the City to initiate proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 3(b) below (the "Landscape District') for the maintenance and servicing of public landscaping improvements on the portion of the Property situated within the Assessment District Areas. The Landscape District may only include the Assessment District Areas for the purposes set forth in Section 3(b) below and the Property for the purposes of the levy and collection of the assessment as may hereafter be ordered by the City under and subject to Section 4 below. (b) Within the Assessment District Areas, the Landscape District and the special assessments as may hereafter be levied by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any planting of landscaping within the Assessment District Areas approved by the City and installed within the Assessment District Areas by the owner of the Property in accordance with D.P. II No. 05-18. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by any owner of the Property in the Assessment District Areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury,the removal of trimmings,rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs of preparation of engineering reports and the collection of the assessment. © -2- caner for itself and its successors and assigns hereby waives its right to protest the formation (c) O of the Landscape District and further waives any right to object to the performance by the City of any of the maintenance or furnishing of services described in Section 3(b) under City Municipal Code Section 12.90, el seq.,or other applicable law, subject to the provisions of Section 4 below. Owner for itself and its successors and assigns hereby waives any requirement for giving or receipt of notice from the City with respect to the formation of the Landscape District or, except as provided in Section 4(ii), the ordering or performance of any maintenance or furnishing of services in the Assessment District Areas described in Section 3(b). Section 4. Owner for itself and its successors and assigns hereby waives right to protest the amount of any assessment which may hereafter be levied by the City on the Property for the Landscape District under City Municipal Code Section 12.90, et seq., or other applicable law including, without ' limitation, Streets and Highways Code Section 22620, et seq, in any year for the performance by the City of any maintenance or services in the Assessment District Areas, and hereby consents to the levy of a special assessment on the Property therefor, subject to the following conditions: (i) the City shall have completed the formation of the Landscape District as evidenced by the recordation of an assessment district boundary map which conforms with this Agreement and the requirements of Streets and Highways Code Section 3111 or filed a resolution confirming the formation of such Landscape District and assessment under other applicable law, including, without limitation, Streets and Highways Code Section 22641; (ii) pursuant to a Default Assessment Agreement by and between the City and Owner in such form as is typically used by the City, subject to City approval at its discretion, in the event Owner or any then current owner of the Property shall have failed to perform the maintenance or furnishing of services described in Section 3(b) within the Assessment District Areas or any portion thereof following at least sixty(60)days prior written notice from the City ordering Owner or the then current owners of the Property to perform the maintenance or furnishing of services described in such notice (subject to prudent seasonal planting practices); and (iii) the amount of the assessment levied by the City for maintenance or furnishing of services it may perform under subparagraph (ii), above, shall not exceed the lesser of (A) the actual costs paid by the City for the performance of such maintenance and servicing, plus a reasonable administrative charge; or: (B) Fifty Cents ($0.50) multiplied by the number of square feet within the Assessment District Areas on which the City performed the maintenance or furnishing of services described in the notice, adjusted as of July 1 of each year following the recordation of this Agreement by an amount equal to the change(if any)over the twelve(12)months preceding the last such adjustment in the Consumer Price Index (all items) all urban consumers (with a base 1982 = 100) for the San Bemardino-Riverside metropolitan areas as published by the United States Department of Labor, Business of Labor Statistics. -3- � O Section 5. Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be levied by the City under Section 4, at the same time and in the same manner as county property taxes are collected and all the laws providing for the collection and enforcement of county property taxes shall apply to the collection and enforcement ! of any such assessments I Section 6. This Agreement shall not be withdrawn, modified or amended by the owner of the Property without the prior written consent of the City,which consent the City may grant or withhold in its sole and absolute discretion and such consent of the City shall be evidenced by an instrument in recordable form. THIS AGREEMENT has been executed by the authorized officers of Owner and the City on the date indicated next to the signatures of each of them. CITY: CITY OF SAN BERNARDINO,CALIFORNIA By: ^+` attic J. Morris, r Date: Martha_, 2007 Approved as to Form: F. Penm)!es y Attorney Date: March 2007 (Signatures continued on the following page.) I I o 1 i j i OWNER: HSB I-215,L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership, its sole member By: Hillwood Associates,L.P., a Texas limited partnership, its general partner By: Hillwood Development Company,LLC, a Texas limited liability-company, its general artner By: Name: -T(A*\ N) . (�t��'14. •.,_, Title: Levu[.' .acs Date: March �,2007 (Signatures continued on the following page.) SE I-215, L.P., aC alifornia limited partnership By: HSB GP, LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership,its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: f illwood Development Company, LLC, a Texas limited liability company, its general p r © By: Name:' M ! t11w Title: ! ., r• ,d— Date: March?7>2007 HILLWOOD ENTERPRISES,L.P., a Texas limited partnership By: AHB, LLC, a Texas limited liability company, its general partner F ' By: Name: 'T M A. AU • Title: `se!„U: L.0 Pr: .ihl• Date: f\'k dy A% ;�-7, 2, 7 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) )SS. County of San Bernardino ) On March 27,2007,before me,Marissa L.Johnson,Notary Public,personally appeared John M.Magness , ❑X personally known tome ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the MARML JOW4110N person(s), or the entity upon behalf of which the Conwnk_0 n i 161!620 person(s)acted,executed the instrument. Nolaly RdAc-Camomia bon @a mdh Co my WITNESS my hand and official seal. �Jmaj-,gZ � Signature of Notary Public ************************ OPTIONAL **************************** Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder Document Date: March 27,2007 Number of Pages: Six(6)plus exhibits Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: ❑ Individual Top of thumb here ❑ Corporate Officer—Title(s): ❑ Partner--t] Limited O General ❑ Attorney-in-Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: EXHIBIT A Parcels 1, 2, 3, 4, 5 and 6 of the propely that is the subject of City of San Bernardino Parcel Map No. 17375 recorded at Pl/1$212��4'bfFicial Records, San Bernardino County, California. A copy of Page 8 of Parcel Map No. 17375 showing Lot C, Lot D and the Storm Drain Easement Area is attached as Exhibit A-1. EXHIBIT A-1 j L ^�` gi ! �` ' ._.7a aR�jaSil}��{✓ kF6aEtl6FxF ZtiF � ! I `/--'G:'....�:-.al."°-=—'•`+'...:. 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S^x OS Box I F� " a f C (Dlpy I RESOLUTION NO. 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 CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA, 6 APPROVING THE FINAL ENGINEER'S REPORT, CREATING AN ASSESSMENT DISTRICT TO COVER THE COSTS OF SAID MAINTENANCE, KNOWN AS 7 ASSESSMENT DISTRICT NO. 1057, ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL, AND DETERMINING THAT THE SPECIAL 8 ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 9 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 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 15 costs and expenses in connection therewith, that the project is feasible, and that the lands to be 16 assessed will be able to cant'the burden of the proposed assessments to pay the costs and expenses 17 thereof; and 18 WHEREAS, on July 2, 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 21 District No. 1057, which is on file in the office of the City Clerk, and adopted Resolution No. 22 2007-209 entitled: 23 "RESOLUTION OF THE CITY OF SAN BERNARDINO PRELIMINARILY DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE 24 THE FORMATION OF A LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT 25 LOCATED IN THE CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA WITHOUT COMPLIANCE WITH THE SPECIAL ASSESSMENT INVESTIGATION, 26 LIMITATION AND MAJORITY PROTEST ACT OF 1931; DECLARING ITS INTENTION TO PROCEED TO ORDER WORK WITHIN THE DISTRICT, TO BE 27 KNOWN AS ASSESSMENT DISTRICT NO. 1057; PRELIMINARILY APPROVING THE 28 ENGINEER'S REPORT AND GIVING NOTICE OF A PUBLIC HEARING." /Vo aye I RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL 2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1057,ORDERING THE WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 3 SHALL NOT APPLY. 4 Said resolution was duly and legally published and notice given of a Public Hearing in the manner 5 required by law, and pursuant to Section 4 of Article XIIID of the California Constitution. All 6 7 property owners given notice were also given an Assessment Ballot to indicate support or 8 opposition to the proposed assessment. 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 11 WHEREAS,a Diagram of the Assessment District has been prepared and is on file in the 12 13 office of the City Clerk; and 4 14 WHEREAS,an Assessment Roll has been prepared totaling$64.774.15,which sets forth 15 the individual assessments to be levied on each of the parcels of land within Assessment District 16 No. 1057, 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 August 20, September 17, 21 22 October 1 & 15, and November 19, 2007 the Mayor and Common Council, having heard and 23 considered any and all comments received thereon and being fully advised in the premises,hereby 24 determine that any and all protests received represent less than a Majority Protest,as represented 25 by the assessment units assessable on the 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 11/15/07 2 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 1 PROTEST...CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL 2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1057,ORDERING THE WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE 3 SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 4 the assessment. 5 SECTION 3. That it is hereby determined that all properties,parcels and lots within the 6 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 properties within the boundaries of the Assessment District in direct proportion to the benefits 12 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. 1057, along with the 17 work and appurtenances described in said Resolution No. 2007-209 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. 1057 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 stand as the Report for all future proceedings for this Assessment District. 25 26 SECTION 6. That the Mayor and Common Council do hereby find and determine that the 21 proportionate costs to be levied against the parcels of land within Assessment District No. 1057 28 are correctly set forth on Assessment Roll No. 1057 for the fiscal year 2008-2009, as set forth in 11/15/07 3 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL 2 ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1057,ORDERING THE WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 3 SHALL NOT APPLY. 4 said Engineer's Report, as now approved, and on file in the office of the City Clerk of the City of 5 San Bernardino, and do hereby confirm said assessments. 6 7 SECTION 7. The City Clerk is hereby directed and authorized to publish a Notice Inviting 8 Bids for performing the work ordered, in the San Bernardino County Sun, a newspaper published 9 and circulated in said City, according to the specifications prepared or as will be prepared by the 10 City Engineer and on file or to be filed in the office of the City Engineer, at such time when the 11 installation of the landscaping and appurtenances has been accepted by the City. The contract will 12 13 be awarded pursuant to standards used by the City in the award of Public Works contracts. 14 SECTION 8. It is hereby determined that the formation of the assessment district is 15 categorically exempt from the requirements of the California Environmental Quality Act(CEQA), 16 pursuant to Class 1, Section 15301(c). 17 SECTION 9. Reference hereby is made to said Resolution No. 2007-209 and said 18 19 Engineer's Report for a description of the work,the extent of the assessment district,the financing 20 alternatives and for further particulars. 21 SECTION 10. That the City Clerk is directed to cause a copy of this Resolution to be 22 transmitted to the office of the Auditor-Controller for the County of San Bernardino with the 23 request that the individual assessments as shown on Assessment Roll No. 1057 be placed on the 24 subject 2008-2009 property tax bills for collection together with all other property taxes. 25 26 27 28 11/15/07 4 I RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY PROTEST... CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1057,ORDERING THE 2 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 3 SHALL NOT APPLY. 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 held on 6 7 the day of 20 , by the following vote,to-wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 ESTRADA 10 BAXTER 11 BRINKER 12 13 DERRY 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 _ City Clerk 19 20 The foregoing resolution is hereby approved this day of 20 21 22 PATRICK J. MORRIS,Mayor 23 City of San Bernardino 24 Approved as to form: 25 `�- 26 JAYES F. PENMAN, City Attorney 27 28 11/15/07 5 23. Continued. A. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing and directing the execution of a Landscape Maintenance Services Agreement relative to the proposed Assessment District No. 1057 (Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District). (Resolution not available at time of printing.) B. Resolution of the City of San Bernardino finding and determining the existence of less than a majority protest, that ballots submitted in favor of the assessment exceed the ballots submitted in opposition to the assessment and that the public convenience and necessity require the maintenance of landscaping in the Cajon Boulevard and University Parkway area, approving the final Engineer's Report, creating an assessment district to cover the costs of said maintenance, known as Assessment District No. 1057, ordering the work, confirming the 2008- 2009 Assessment Roll, and determining that the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 shall not apply. (Resolution not available at time of printing.) The hearing remains open . . . Approved MOTION: That the matter be continued to November 19, 2007. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx XXXXX CONTINUED FROM OCTOBER 1, 2007 TO BE HEARD AT 4:00 P.M. 24. Public hearing - resolution authorizing the execution of an agreement and resolution ordering work relative to the proposed Central Avenue and Lena Road Area Landscape Maintenance Assessment District No. 1063 - Parcel Map No. 17721. (Backup material was distributed on October 1, 2007, Item No. 25.) Ward 1 A. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing and directing the execution of a Landscape Maintenance Services Agreement relative to the proposed Assessment District No. 1063 (Central Avenue and Lena Road Area Landscape Maintenance Assessment District). (Resolution not available at time of printing.) (Item Continued on Next Page) 10 10/15/2007 r 21. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the execution of an agreement and issuance of a purchase order in the amount of $36,550.00 with two (2) one-year extensions at the City's option between the City of San Bernardino and Smithson Electric, Inc. pursuant to Section 3.04.010 B-3 of the Municipal Code for loop replacement services, labor, and materials utilized by the Public Services Department, Streets Division. (See Attached) (Cost to City -- $36,550 from 07-08 CIP various funds.) All Wards Approved MOTION: That said resolution be adopted. Adopted 2007-426 END OF CONSENT CALENDAR PUBLIC HEARINGS XXXXXXXX XXXXXXXXXXXXXXX7IICg TO BE HEARD AT 4:00 P.M Development Services 22. Public hearing for adoption of Master Facilities Plan Regional Circulation System update to adjust the Regional Traffic Systems Fee and amendment to Resolution No. 2006-97. (See Attached) (No cost to City.) All Wards Mayor to open the hearing . . . Approved MOTION: That the matter be continued to November 5, 2007. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxXXXXXXX CONTINUED FROM OCTOBER 1, 2007 TO BE HEARD AT 4:00 P.M. 23. Public hearing - Resolution authorizing the execution of an Agreement and Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). (Backup material was distributed on August 20, 2007, Item No. 45; continued to September 17, 2007, Item No. 32; continued to October 1, 2007, Item No. 24.) Ward 6 (Item Continued on Next Page) 9 10/15/2007 PUBLIC HEARINGS XX CONTINUED FROM SEPTEMBER 17, 2007 TO BE HEARD AT 4:00 P.M Development Services 24. Public hearing - Resolution authorizing the execution of an Agreement and Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). (Cost to City -- $4,000 processing fee - paid by applicant; $4,464 - estimated annual General Benefit amount Assessment District Deposits/General Fund.) (Backup material was distributed on August 20, 2007, Item No. 45; continued to September 17, 2007, Item No. 32.) Ward 6 A. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing and directing the execution of a Landscape Maintenance Services Agreement relative to the proposed Assessment District No. 1057 (Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District). (Resolution not available at time of printing.) B. Resolution of the City of San Bernardino finding and determining the existence of less than a majority protest, that ballots submitted in favor of the assessment exceed the ballots submitted in opposition to the assessment and that the public convenience and necessity require the maintenance of landscaping in the Cajon Boulevard and University Parkway area, approving the final Engineer's Report, creating an assessment district to cover the costs of said maintenance, known as Assessment District No. 1057, ordering the work, confirming the 2008- 2009 Assessment Roll, and determining that the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 shall not apply. (Resolution not available at time of printing.) The hearing remains open . . Approved MOTION: That the matter be continued to October 15, 2007. XXXXxxxXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX `r7 tt XXXXXXXXX CONTINUED FROM AUGUST 20, 2007 Development Services 32. Public hearing - Resolution authorizing the execution of an Agreement and Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). (New Staff Report Attached) (Cost to City -- $4,000 processing fee - paid by applicant; $4,464 - estimated annual General Benefit amount) Assessment District Deposits/General Fund.) (Backup material was distributed on August 20, 2007, Item No. 45.) Ward 6 A. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing and directing the execution of a Landscape Maintenance Services Agreement relative to the proposed Assessment District No. 1057 (Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District). (Resolution not available at time of printing.) B. Resolution of the City of San Bernardino finding and determining the existence of less than a majority protest, that ballots submitted in favor of the assessment exceed the ballots submitted in opposition to the assessment and that the public convenience and necessity require the maintenance of landscaping in the Cajon Boulevard and University Parkway area, approving the final Engineer's Report, creating an Assessment District to cover the costs of said maintenance, known as Assessment District No. 1057, ordering the work, confirming the 2008- 2009 Assessment Roll, and determining that the Special Assessment Investigation, Limitation and Majority Protest Act of 1931 shall not apply. (Resolution not available at time of printing.) Mayor to open the hearing. . . Approved MOTION: That the matter be continued to October 1, 2007. XXXXXXXXXXXXX END OF PUBLIC HEARING! 13 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, & Dept: Development Services Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Date: August 30, 2007 Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). File No. 14.40-148 MCC Date: September 17 2007 Synopsis of Previous Council Action: 10/17106—Tentative Parcel Map No. 17375 was approved, with conditions. 03119/07—Resolution No. 2007-83 was adopted, directing the execution of an Agreement to form a Landscape Maintenance District, for the purpose of allowing the Parcel Map to be recorded. 03/22/07—Parcel Map No. 17375 was recorded. 07/02/07—Authorization was given to proceed with the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment Districts No. 1057, and Resolution of Intention No. 2007-209 was adopted. 08/20/07—Public Hearing was held and continued to 9/17/07. Recommended Motion: 1. That the public hearing relative to the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment Districts No. 1057 be closed. AND 2. Adopt resolution's(2)-(4/5 vote required for formation of LMD) Valerie C. Ross Contact person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report, Maps, Reso. Ward: 6 $4,000 (Processing fee paid by applicant) FUNDING REQUIREMENTS: Amount: $4,464 (Estimated annual General Benefit amount) Source: (Acct. No.) 254-000-2301-6051 Assessment District (Acct. Description) Deposits/General Fund Finance: Council Notes: Agenda Item No. 17/110-7 CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Public hearing—4:00 p.m., Resolution authorizing the execution of an Agreement, & Resolution Ordering Work relative to proposed Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057(Parcel Map No. 17375). BACKGROUND: On October 17, 2006, the Planning Commission approved Tentative Parcel Map No. 17375, located to the northeast of Cajon Boulevard and southeast of University Parkway. On November 3, 2006, Hillwood Investments,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 future landscaping within slopes along portions of the easterly and westerly side of the overpass realignment of University Parkway (Lot `C') and also include the detention basin (Lot `D') on the southerly portion of Tentative Parcel Map No.17375. The detention basin will consist of native growth and will protect the parcels within the district from flood damage and is a direct benefit to this development. Maintenance in the detention basin will consist of periodic cutting of native vegetation and removal of debris and silt as needed. Parcel Map No. 17375 consists of 7 commercial parcels and 3 lettered lots. The annual cost of maintenance and incidentals will be spread across these 7 parcels while the lettered lots will be nil assessed due to not receiving any benefit from the improvements. 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 the retention basin, which on file 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, portions of the landscaping along the overpass realignment of University Parkway has been deemed to be of a general benefit. The general benefit portion of the annual cost of maintenance is estimated to be $4,464.81, 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 $64,774.15. 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 $927.89 to $23,672.31 per parcel. The Engineer's Report allows for annual increases of Price Index) or 5%, whichever is less, to cover increases in maintenance costa this amount will either need to be approved by the property owners within the Di for by the City. /Uo, 3a Pelploremenf F,*---s Staff Report— continued On March 19, 2007, Resolution No. 2007-83 was adopted, directing the execution of an Agreement to form a Landscape Maintenance District. The purpose of this Agreement was to waive the owner's right to protest the formation of a Landscape Maintenance District so that the City would allow the owner to record Parcel Map No. 17375 prior to the Landscape Maintenance District being formed. Parcel Map No. 17375 was recorded on March 22, 2007. The developer/owner has requested this Landscape Maintenance Assessment District to be a "default" district, where the property owners, through an Association, will be maintaining the detention basin only. The District will still maintain the landscaping in the slope area along University Parkway. 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 July 2, 2007, Resolution of Intention No. 2007-209 was adopted, setting a public hearing for August 20, 2007, and preliminarily approving the Engineer's Report. The public hearing was continued to September 17, 2007 because the Maintenance Agreement was not in final form and the Agreement needed to be approved prior to the formation of the District. 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 $4,000 processing fee. Estimated costs of annual maintenance in the amount of$64,774.15, 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 $4,464.81, 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. LOCATION OF PROPOSED ASSESSMENT a DISTRICT NO. 1057 e Qa Hea t a 'e1 �v0 40th St. 330 d ti Q mow' Marshall Blvd. 10 Highland Ave. 3 N Base Line St. w rn 9th St 5th St. a 0 E Rialto Ave. f 15 u Mill St. a v 3 z10 Orange how Rd. 0 VICINITY MAP p NO SCP E CITY OF SAN BERNARDINO Proposed Landscape Maintenance LOWDEVELOPMENT SERVICES DEPARTMENT Assessment District No. 1057 - REAL PROPERTY SECTION Cajon Boulevard and University Parkway Indicates un-incorporated areas within City's Area (PM 17375) Sphere of Influence Created by: Ryan Sandoval Date: 4/12/07 g s � �g�Ea�gRgg g �� ry�o9�m ®ri)'s 8 4g $ P ( �� 9Qp9pp9 yy F l _Bg gRy9ER5 ZR 45'{S �� � ! Ef L £ U nl3i.§� 6E � g $'g Eb m£RyF E E pq` S 4 C8 A � �ZZZ�B out {{ E g s loo ea6 a € Q g a €€ s E � S 5 4 N • J q, = Z w �yq arrea cc W Q / p I zws Im 4 Z n 9 e LLz pp 00 m w w a rc 0 cc a LLI i 4n 1 n W IWI wa LQ4 �/ w9 o _ IQ rcio^ a Z ai I o 5 o Ga JI Wa® fi � •, ; �� J a O a '3 ¢ba n s ❑ � A'® , � o O p @ y w p u¢ ZQ � a e� � w a �f O /UNI ftSiT�' 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. 1057 (CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA LANDSCAPE MAINTENANCE ASSESSMENT 6 DISTRICT). 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 8 OF SAN BERNARDINO AS FOLLOWS: 9 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized and 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 13 District No. 1057, known as the Cajon Boulevard and University Parkway Area Landscape 14 Assessment District,as set forth in the Engineer's Report for said Assessment District, on File in 15 the office of the City Clerk. 16 SECTION 2. The owner(s) of property(ies) within the boundaries of said proposed 17 Assessment District No. 1057,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 20 Engineer, or his designee, is hereby authorized to accept said Agreement on behalf of the City of 21 San Bernardino. 22 SECTION 3. Authorization to execute the Landscape Maintenance Services Agreement 23 is rescinded if the parties fail to execute it within 60 days of the passage of this Resolution. 24 25 26 27 J 28 08/22/07 1 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A LANDSCAPE MAINTENANCE SERVICES 2 AGREEMENT RELATIVE TO THE PROPOSED ASSESSMENT DISTRICT NO. 1057 (CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA LANDSCAPE MAINTENANCE ASSESSMENT 3 DISTRICT). 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 7 held on the day of 20�by the following vote,to wit: 8 9 Council Members: AYES NAYS ABSTAIN ABSENT 10 ESTRADA 11 BAXTER 12 BRINKER 13 14 DERRY 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 City Clerk 20 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 28 By' JAMES F. PENMAN, City Attorney 08/22/07 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, P 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 (InterChange/I-215 at University Parkway) 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(i)the property owners identified on the attached Exhibit"A"(collectively,the"Property Owner"),as the owners of certain property within the boundaries of the City of San Bernardino Assessment District No. 1057(the"Landscape District"), which property is the subject of this Maintenance Agreement (the "Property'), 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' 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"D"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. 1057, and the Property Owner shall pay the City the first year assessments for AD No. 1057,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. 1057. 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 15%general benefit portion to be paid by the City) shall be allocated among the Property Owners as set forth on the attached Exhibit"C",and as set forth in the Engineer's Report referenced below. (c) The City Engineer or his/her designee, has prepared the Engineer's Report for Assessment District No. 1057 dated May 22,2007, on file with the City Clerk as File No. 1440-148 (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. 1057 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: 2 (i) the maintenance and servicing by the City of any landscaping within the Property Owner Maintenance Areas. As used herein,the words"maintenance 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 "D" attached hereto and incorporated by this reference as if set forth frilly 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"D"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"D"within the Property Owner Maintenance Areas or any portion thereof which results in a hazardous safety situation in the professional opinion of the City Engineer, following at least 48 hours prior written notice to the Property Owner to completely cure said hazardous safety situation, and the Property Owner has failed to so completely cure (or to have commenced such cure with diligent efforts to cure)upon the expiration of such 48-hour notice and cure period. Any termination of this Maintenance Agreement 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 i 3 3 i 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. i I i 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. Governine 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. CounteWgIts. 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 wan-ant 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. 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 ten days following the execution of this Maintenance Agreement. 7 Section 23. Master Association. Property Owner has formed the InterChange Business Center Association,a California nonprofit mutual benefit corporation("Master Association"),to act as the master owners association for the Property. Notwithstanding the provisions of Section 21 above, the Master Association shall be responsible for the maintenance of the Property Owner Maintenance Areas as required by this Maintenance Agreement. Section 24. Prior Agreement. This Maintenance Agreement is the "Default Assessment Agreement"referenced in the Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and connected to the Levy of Special Assessments recorded as Document#2007-0192179 in the Official Records, County of San Bernardino, California. In the event of any inconsistency between such earlier recorded agreement and this Maintenance Agreement, the provisons of this Maintenance Agreement shall control. [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 By: EXHIBIT COPY FRED WILSON, City Manager SEAL ATTEST: RACHEL CLARK City Clerk Approved as to Form: EXHIBIT COPY JAMES F. PENMAN, City Attorney (Signatures continued on the following page.) 9 Parcel 2 Owner: HW LIT INTERCHANGE, LP, a California limited partnership By: DTC Phase 11,LLC, a Delaware limited liability company its general partner By: EXHIBIT COPY John M. Magness Senior Vice President Parcel 4 Owner: Parcel 5 Owner: Parcel 6 Owner: HSB I-215, L.P., a California limited partnership By: HSB GP,LLC, a California limited liability company, Its general partner By: HGI GP,LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership, its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company,LLC, a Texas limited liability company, its general partner By: EXHIBIT COPY John M. Magness Senior Vice President (Signatures continued on the following page.) 10 Parcel l Owner: Parcel 3 Owner: SE I-215,L.P., a California limited partnership By: HSB GP,LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group,L.P., a Texas limited partnership, its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company,LLC, a Texas limited liability company, its general partner By: EXHIBIT COPY John M. Magness Senior Vice President Parcel 7 Owner: HILLWOOD LIT II,LP, a Delaware limited partnership By: Hillwood LIT II GP,LLC, a Texas limited liability company, its general partner By: EXHIBIT COPY John M.Magness Senior Vice President 11 EXHIBIT"A" PROPERTY OWNERS 1. Prop=Owners A. Parcel 1 Owner— SE I-215,L.P. B. Parcel 2 Owner—HW LIT Interchange, LP C. Parcel Owner—SE I-215, L.P. D. Parcel 4 Owner—HSB I-215, L.P. E. Parcel 5 Owner—HSB 1-215,L.P. F. Parcel caner—HSB I-215, L.P. G. Parcel 7 Owner—Hillwood LIT 11,LP 2. All of the Property is situated within Parcel Map. No. 17375, filed in Book 219,Pages 84-91 of the Parcel Maps of San Bernardino County, California(the"subdivision") 3. Parcel 1 Owner owns Parcel I of the Subdivision Parcel 2 Owner owns Parcel 2 of the Subdivision Parcel 3 Owner owns Parcel 3 of the Subdivision Parcel 4 Owner owns Parcel 4 of the Subdivision Parcel 5 Owner owns Parcel 5 of the Subdivision Parcel 6 Owner owns Parcel 6 of the Subdivision Parcel 7 Owner owns Parcel 7 of the Subdivision 12 EXHIBIT"B" PROPERTY OWNER MAINTENANCE AREAS 1. Lot D in the Subdivision. 13 EXHIBIT C ASSESSMENTS ALLOCATION Parcel 1 16.158% Parcel 36.546% Parcel 9.316% Parcel 5.976% Parcel 7.685% Parcel 22.886% Parcel 7 1.433% 100% 14 EXHIBIT"D" 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 v—isual— — quality of the landscaping treatments. The Property Owner shall provide for adequate amounts of irrigation water to be applied to Lot D,as applicable—currently not planned,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. 15 PROPERTY OWNERS 1. Property Owners A. Parcel 1 Owner—SE I-215,L.P. B. Parcel 2 Owner—HW LIT Interchange, LP C. Parcel 3 Owner—SE I-215, L.P. D. Parcel 4 Owner—HSB I-215,L.P. E. Parcel 5 Owner—HSB I-215, L.P. F. Parcel 6 Owner—HSB I-215,L.P. G. Parcel 7 Owner—Hillwood LIT II,LP 2. All of the Property is situated within Parcel Map. No. 17375, filed in Book 219, Pages 84-91 of the Parcel Maps of San Bernardino County, California(the "subdivision") 3. Parcel 1 Owner owns Parcel 1 of the Subdivision Parcel 2 Owner owns Parcel 2 of the Subdivision Parcel 3 Owner owns Parcel 3 of the Subdivision Parcel 4 Owner owns Parcel 4 of the Subdivision Parcel 5 Owner owns Parcel 5 of the Subdivision Parcel 6 Owner owns Parcel 6 of the Subdivision Parcel 7 Owner owns Parcel 7 of the Subdivision Exhibit "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 CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA, APPROVING THE FINAL ENGINEER'S REPORT, CREATING AN ASSESSMENT 7 DISTRICT TO COVER THE COSTS OF SAID MAINTENANCE, KNOWN AS 8 ASSESSMENT DISTRICT NO. 1057, ORDERING THE WORK, CONFIRMING THE 2008-2009 ASSESSMENT ROLL, AND DETERMINING THAT THE SPECIAL 9 ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 SHALL NOT APPLY. 10 11 WHEREAS,pursuant to Chapter 12.90 of the San Bernardino Municipal Code, the Mayor 12 and Common Council of the City of San Bernardino have preliminarily found that the public 13 interest,convenience, and necessity require the maintenance of landscaping in a portion of the Cite. 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 18 thereof; and 19 WHEREAS, on July 2, 2007, the Mayor and Common Council of the City of San 20 Bernardino preliminarily approved the Engineer's Report relative to the formation of Assessment 21 District No. 1057, which is on file in the office of the City Clerk, and adopted Resolution No. 22 2007-209 entitled: 23 24 `RESOLUTION OF THE CITY OF SAN BERNARDINO PRELIMINARILY DETERMINING THAT THE PUBLIC CONVENIENCE AND NECESSITY REQUIRE 25 THE FORMATION OF A LANDSCAPE MAINTENANCE ASSESSMENT DISTRICT LOCATED IN THE CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA 26 WITHOUT COMPLIANCE WITH THE SPECIAL ASSESSMENT INVESTIGATION, 27 LIMITATION AND MAJORITY PROTEST ACT OF 1931; DECLARING ITS INTENTION TO PROCEED TO ORDER WORK WITHIN THE DISTRICT, TO BE 28 KNOWN AS ASSESSMENT DISTRICT NO. 1057; PRELIMINARILY APPROVING THE ENGINEER'S REPORT AND GIVING NOTICF OF A PUBLIC HEARING." Q11 c 1ni 1 I RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST...CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO. 1057,ORDERING THE 3 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 4 SHALL 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 XIED 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 10 of the proposed district, the work to be done or the extent of the district to be assessed were heard 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 $64,774.15,which sets forth 15 16 the individual assessments to be levied on each of the parcels of land within Assessment District 17 No. 1057, 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 September 17, 2007,the Mayor 22 and Common Council, having heard and considered any and all comments received thereon and 23 being fully advised in the premises, hereby determine that any and all protests received represent 24 25 less than a Majority Protest, as represented by the assessment units assessable on the properties 26 represented 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 8/15/07 2 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST...CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO.1057,ORDERING THE 3 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 4 SHALL 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. 1057, along with the 18 work and appurtenances described in said Resolution No. 2007-209 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. 21 22 SECTION 5. That the Engineer's Report relative to the formation of Assessment District 23 No. 1057 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. 1057 are correctly set forth on Assessment Roll No. 1057 11or the fiscal year 2008-2009, as set forth in 8/15/07 3 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST... CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO.1057,ORDERING THE 3 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 4 SHALL NOT APPLY. 5 said Engineer's Report, as now approved, and on file in the office of the City Clerk of the City of 6 San Bernardino, and do hereby confirm said assessments. 7 SECTION 7. The City Clerk is hereby directed and authorized to publish a Notice Inviting 8 Bids for performing the work ordered, in the San Bernardino County Sun, a newspaper published 9 10 and circulated in said City, according to the specifications prepared or as will be prepared by the 11 City Engineer and on file or to be filed in the office of the City Engineer, at such time when the 12 installation of the landscaping and appurtenances has been accepted by the City. The contract will 13 be awarded pursuant to standards used by the City in the award of Public Works contracts. 14 SECTION S. It is hereby determined that the formation of the assessment district is 15 categorically exempt from the requirements of the California Environmental Quality Act(CEQA), 16 17 pursuant to Class 1, Section 15301(c). 18 SECTION 9. Reference hereby is made to said Resolution No. 2007-209 and said 19 Engineer's Report for a description of the work, the extent of the assessment district, the financing 20 alternatives and for further particulars. 21 SECTION 10. That the City Clerk is directed to cause a copy of this Resolution to be 22 23 transmitted to the office of the Auditor-Controller for the County of San Bernardino with the 24 request that the individual assessments as shown on .Assessment Roll No. 1057 be placed on the 25 subject 2008-2009 property tax bills for collection together with all other property taxes. 26 27 28 8/15/07 4 1 RESOLUTION...FINDING AND DETERMINING THE EXISTENCE OF LESS THAN A MAJORITY 2 PROTEST...CAJON BOULEVARD AND UNIVERSITY PARKWAY AREA,APPROVING THE FINAL ENGINEER'S REPORT,CREATING AN ASSESSMENT DISTRICT...NO.1057,ORDERING THE 3 WORK,CONFIRMING THE 2008-2009 ASSESSMENT ROLL,AND DETERMINING THAT THE SPECIAL ASSESSMENT INVESTIGATION,LIMITATION AND MAJORITY PROTEST ACT OF 1931 4 SHALL NOT APPLY. 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 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 25 Approved as to form: 26 27 JAMES F. PENMAN, City Attorney 28 8/15/07 5 44. Continued. Note: City Attorney Penman advised that this matter should be brought back to the September 4, 2007 Council meeting in resolution form. END OF COMMITTEE CONSENT PUBLIC HEARINGS TO BE HEARD AT 4:00 P.M 45. Public hearing - Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). (See Attached) (No cost to the City-- $4,000 processing fee paid by applicant.) Ward 6 Mayor to open the hearing. . . Approved MOTION: That the hearing relative to the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057, be continued to September 17, 2007. END OF PUBLIC HEARINGS CONTINUED ITEMS XXXXXXXXXXXXXXXXXXXXXxxx CONTINUED FROM AUGUST 6. 2007 46. An Ordinance of the City of San Bernardino repealing Chapter 8.35 to Title 8 of the San Bernardino Municipal Code that any vehicle used to solicit an act of prostitution or to acquire or attempt to acquire a controlled substance is a nuisance subject to seizure and impoundment. FIRST READING (Backup distributed on August 6, 2007,Item No. 42.) Approved MOTION: That said ordinance be laid over for final adoption. Vote: Unanimous xxxxxxxxxxxxxxx END OF CONTINUED ITEMS STAFF REPORTS 47. Election of Mayor Pro Tem. Approved MOTION: That Councilman Deny be named Mayor Pro Tem. 17 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Valerie C. Ross, Director Subject: Public hearing—4:00 p.m.—Cajon Boulevard and University Parkway Area Dept: Development Services Landscape Maintenance Assessment District No. 1057 (Parcel Map No. 17375). Date: August 2, 2007 File No. 14.40-148 MCC Date: August 20 2007 Synopsis of Previous Council Action: 10/17/06—Tentative Parcel Map No. 17375 was approved, with conditions. 07/02/07—Authorization was given to proceed with the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057, and Resolution of Intention No. 2007-209 was adopted. Recommended Motion: That the public hearing relative to the formation of the Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057 be continued to September 17, 2007. G,T0kJ'-- Valerie C. Ross Contact person: Ryan Sandoval Phone: 5226 Supporting data attached: Staff Report&Maps Ward: 5 FUNDING REQUIREMENTS: Amount: $4,000(Processing fee paid by applicant) Source: (Acct. No.) 254-000-2301-6051 (Acct. Description) Assessment District Deposits Finance: Council Notes: Agenda Item No. L15 Fla /01 CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Public hearing — 4:00 p.m.— Cajon Boulevard and University Parkway Area Landscape Maintenance Assessment District No. 1057(Parcel Map No. 17375). BACKGROUND: On October 17, 2006, the Planning Commission approved Tentative Parcel Map No. 17375, located to the northeast of Cajon Boulevard and southeast of University Parkway. On November 3, 2006, Hillwood Investments, 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 future landscaping within slopes along portions of the easterly and westerly side of the overpass realignment of University Parkway(Lot `C') and also to include the detention basin(Lot `D') on the southerly portion of Tentative Parcel Map No.17375. The detention basin will consist of native growth and will protect the parcels within the district from flood damage and is a direct benefit to this development. Maintenance in the detention basin will consist of periodic cutting of native vegetation and removal of debris and silt as needed. Parcel Map No. 17375 consists of 7 commercial parcels and 3 lettered lots. The annual cost of maintenance and incidentals will be spread across these 7 parcels while the lettered lots will be nil assessed due to not receiving any benefit from the improvements. 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 the retention basin, which is attached for your review. As required by law, only special benefit may be assessed to properties within an assessment district. Any benefit found to be a general benefit may not be assessed to the District. As set forth in the Engineer's Report, portions of the landscaping along the overpass realignment of University Parkway has been deemed to be of a general benefit. The general benefit portion of the annual cost of maintenance is estimated to be $4,464.81, 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 $64,774.15. 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 to its size relative to the other parcels within the district. The per lot assessment will vary across each parcel but ranges from $927.89 to $23,672.31 per parcel. 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 by the City. Staff Report- continued On July 2, 2007, Resolution of Intention No. 2007-209 was adopted, setting a public hearing for August 20, 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 potential 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 developer/owner has requested this Landscape Maintenance Assessment District to be a "default" district, where the property owners, through an Association, will be maintaining the detention basin only. The District will still maintain the landscaping in the slope area along University Parkway. 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 Maintenance Agreement between the City and Hillwood Investments is currently being drafted and will be submitted in final form for approval on September 17, 2007. The Maintenance Agreement will need to be considered prior to the adoption of the resolution creating the Assessment District, thus the closing of the hearing and adoption of the resolution creating the District will need to be deferred to September 17, 2007. FINANCIAL IMPACT: The applicant has paid the $4,000 processing fee. Estimated costs of annual maintenance in the amount of$64,774.15, 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 $4,464.81, deemed to be a general benefit, will need to be paid from the General Fund. RECOMMENDATION: Staff recommends that the public hearing be continued to September 17,2007. 1 LOCATION OF PROPOSED ASSESSMENT a DISTRICT NO. 1057 c c 1 a •`v d'i� e�r0 40th St. 330 a W Marshall Blvd. — o 10 Highland Ave. 3 Base Line St. "' a w gin St m 5th St. a E Rialto Ave. E ti Mill S L 15 m si Orange how Rd. r VICINITY MAP 2f/ No ScuE CITY OF SAN BERNARDINO Proposed Landscape Maintenance LDEVELOPMENT SERVICES DEPARTMENT Assessment District No. 1057 - REAL PROPERTY SECTION Cajon Boulevard and University Parkway Area (PM 17375) Indicates on-incorporated areas within City's Sphere of Influence Created by: Ryan Sandoval Date: 4/12/07 �. yEk yy 00 3434 y j {QS {{ A B I 3 7 e€ k4 Ito Q 9 a $maf� U m �d n 3 } rca`a I cc � a I Q it W � 1 4 a t r✓ y �� Q 4 %� w2 0 - a � > I I IIy I Ili � 4 t m � zo Orl w rAu 268 W. Hospitality Lane, Suite 105 1 I H I LLWOOD San Bernardino California 92408 909-382-0033 ofc. A PEROT COMPANY 909-382-0073 Fax LETTER OF TRANSMITTAL TO: City Clerk DATE: 1/15/08 IJOB NO.: ATTENTION: City of San Bernardino RE: InterChange 300 North D Street San Bernardino, Ca 92418 WE ARE SENDING YOU Attached ❑ Under separate cover A HAND DELIVERED the following items: COPIES DATE DESCRIPTION 1 01/15/08 Interchange- Returned uneaecuted copies of the Amendment to Agreement THESE ARE TRANSMITTED as checked below: ❑For signature ❑Approved as submitted E] For bid due 11 For your use Approved as noted at am/pm RAs requested Returned after use ❑ For review and comment REMARKS CC: SIGNED: Kama Rorick Ta NS-NCS,LP vet If enclosures are not as noted,kindly notify us at once. 2007-459 PLEASE COMPLETETH IS INFORMATION RECORDING REQUESTED BY: AND WHEN RECORDED MAILTO: City of San Bernardino City Clerk 300 N. "D" Street San Remardinn, CA 92415 APN: FEE EXEMPT PURSUANT TO SPACE ABOVE FOR RECORDER'S USE ONLY GOV.CODE SECTION 27353 AMENDMENT TO AN AGREEMENT DOC#:2007-0192179 Title of Document THIS . ; RECI'61-- USE ONI: ' THIS COVER SH EET ADDED TO PROVIDE AD EQUATE SPACE FOR RECORDING INFORMATION (S3.00 Additional Recording Fee Applies) :�°;. :::.._. ... 1NaNS:A)m ExanCovaShw) 2007-459 AMENDMENT TO AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER This Amendment to Agreement is made as of this 19th day of November , 2007, by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter referred to as "City", and HSB I-215, LP, SE I-215, LP AND HILLWOOD ENTERPRISES, LP, hereinafter collectively referred to as "Owner". WHEREAS, the parties have previously executed an Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder, recorded March 28, 2007, as Document No. 2007-0192179, in the County Recorder's Office, San Bernardino County, a copy of which is attached and incorporated herein as Exhibit "A", for that certain property generally located on the west side of I-215, north of Shandin Hills Golf Course, south of University Parkway, and east of Cajon Boulevard, in the City of San Bernardino; NOW THEREFORE, the parties hereby mutually agree to an amendment to said Agreement as follows: 1. Section 4 (ii) of said Agreement is hereby deleted. 2. All other terms and conditions of said Agreement shall remain in full force and effect. (Signatures on the following page.) 1 2007-459 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year as first written above. CITY: CITY OF SAN BERNARDINO Date: By: _ Ak FRE6WItSON, City Manager ATTEST: RACHEL CLARK, City Clerk Approved as to Form: JAMES F. PENMAN, City Attomey (Signatures continued on the following page.) 2 2007-459 OWNER: HSB I-215, L.P., a California limited partnership By: HSB GP,LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member By: HGI Group, L.P., A Texas limited partnership, its general partner By: Hillwood Associates, L.P., Q a Texas limited partnership, Ur(J its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, (� its general partner s Date: By: John M. Magness Senior Vice President (Signatures continued on the following page.) 3 2007-459 SE I-215, L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, By: HGI GP, LLC A Texas limited liability company, its sole member By: HGI Group,L.P., A Texas limited partnership, its general partner By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general partner Date: By: John M. Magness Senior Vice President HILLWOOD ENTERPRISES, L.P., a Texas limited partnership By: AHB,LLC, a Texas limited liability company, its general partner Date: By: John M. Magness Senior Vice President I i 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California 1 County of can Bernardino J} On Nov. 30,. 2007- beforeme, Julie M. Frazier-Mathews, Notary Public• Data Name aM TNe of OMNr(ag.,',am,ON,Notary PuW) personally appeared Fred Wilson Name(a)d Signeryc) X personally known to me ❑ (or proved to me on the basis of satisfactory evidence) to be the person(Awhose narl is/A subscribed to the within instrument and acknowledged to me that he/94j2�executed the same in his/h,</tor authorized capac'dy(iA, and that by his / it signaturAon the instrument the person or the entity upon behalf of which the person(Kacted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Aecve Signature • • /• ` Si9natura of Notary tic P OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s)Other Than Named Above: Capacity(tes)Claimed by Signer(s) Signer's Name: Signer's Name: • Individual ❑ Individual • Corporate Officer—Title(s): ❑Corporate Officer—Title(s): ❑ Partner—❑ Limited ❑General ❑ Partner—❑ Limited ❑General ❑ Attorney in Fact ' b" El Attorney in Fact b" El Trustee Too or thumb Wore 11 Trustee Too of moral,Here ❑ Guardian or Conservator ❑Guardian or Conservator ❑ Other: ❑Other: Signer Is Representing: Signer Is Representing: 0 20M Netbnal Notery Association•9350 De Soto Are.,P.O.Box 2402•Chat rffi,CA 91313-2402 Item No.5907 v808 RNrtler:Call Tdl.Fina 1-800-818-882] 2007-459 Recorded In 01ficlal Records,County of San Bernardino 8/28/2087 2007-83 .- - .., t LARRY WALKER 12`06'" Auditor/Controller — Recorder Be 4 P Counter Recording Requested by And When Recorded Mail To: Doc#: 2007-0192179 Titles: 1 papa: B City of San Bernardino ! II IIII II VIII II III III IIIIII I III Omer 00:ell Development Services Department aeTo se.ee Division of Public Works Attn: City Engineer 300 North"D" Street San Bernardino,California 92418 AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER THIS AGREEMENT AND PETITION OF PROPERTY OWNER REQUESTING FORMATION OF LANDSCAPE MAINTENANCE DISTRICT AND CONSENT TO THE LEVY OF SPECIAL ASSESSMENTS THEREUNDER (this "Agreement") is dated as of March _, 2007, and evidences the request of HSB 1-215, L.P. and SE I-215, L.P., each a California limited partnership, and Hillwood Enterprises, L.P., a Texas limited partnership (collectively, "Owner'), the owner of the property more fully described in Exhibit "A" attached hereto (the "Property"), for the Mayor and Common Council of the City of San Bernardino (the "City"), to proceed without further notice to Owner, and its successors and assigns, to form a special landscape maintenance assessment district for the Property for the purposes set forth below in this Agreement. OWNER HEREBY SUBMITS THIS AGREEMENT TO THE CITY AND DECLARES, COVENANTS AND AGREES AS FOLLOWS: Section 1. As used in this Agreement the words "Assessment District Areas"mean and refer to the portions of the Property described as follows: W Lot C. (ii) Lot D. (iii) The 210 foot st rm drain and access easement extending southeasterly from the most easterly cul-de-sac at the end tot B to Lot D(together, the"Storm Drain Easement Area"). (iv) Lot C,Lot D E nd the Storm Drain Easement Area are shown on the copy of page 8 of -I- F:\EMPENO\Developmens Semicm\Lends pe Maimmnan¢-3-1"7FrNAL.doc Exhibit "A" 2007-459 Parcel Map No. 17375 that is part of the attached Exhibit A-1. Owner is the property owner of Lot D and the Storm Drain Easement Area. The City is the property owner of Lot C. The City joins in this Agreement for the sole purpose of evidencing its consent to this Agreement for the purpose of the inclusion of Lot C as part of the Assessment District Areas and shall have no obligation for the payment of any assessments referenced in this Agreement or by the Landscape District (hereinafter defined). Owner has agreed to offer to dedicate Lot D to the City together with the storm drain easements that carry storm water to Lot D as shown on Exhibit A-1. Section 2. This Agreement is delivered to the City in accordance with the provisions of City of San Bernardino Municipal Code Section 12.90.040 C.S., and other applicable law including, without limitation, Streets and Highways Code Section 22500, et seq., in order to satisfy certain conditions of the approval by the City for the development, improvement and use of the Property under City Development Permit II No. 05-18, dated October 17, 2006, as the same relates to the formation a landscape maintenance assessment district (D.P. II No. 05-18: Public Works Division Condition No. 2(c) and(w)) for the Property for the purpose of providing for the maintenance and servicing of public landscaping improvements within the Assessment District Areas. The City accepts this Agreement in full and complete satisfaction of DP II No. 05-18, Public Works Department Condition No.2(w). Section 3. (a) Owner for itself and its successors and assigns hereby requests the City to initiate proceedings to form a landscape maintenance assessment district for the purposes set forth in Section 3(b) below (the "Landscape District') for the maintenance and servicing of public landscaping improvements on the portion of the Property situated within the Assessment District Areas. The Landscape District may only include the Assessment District Areas for the purposes set forth in Section 3(b) below and the Property for the purposes of the levy and collection of the assessment as may hereafter be ordered by the City under and subject to Section 4 below. (b) Within the Assessment District Areas, the Landscape District and the special assessments as may hereafter be levied by the City each fiscal year may provide for the following improvements: (i) the maintenance and servicing by the City of any planting of landscaping within the Assessment District Areas approved by the City and installed within the Assessment District Areas by the owner of the Property in accordance with D.P. II No. 05-18. As used herein, the words "maintenance and servicing" mean and refer to the furnishing of services and materials for the ordinary and usual maintenance, operation of the landscaping installed by any owner of the Property in the Assessment District Areas including providing for the growth, health, cultivation, irrigation, trimming, spraying, fertilizing or treating for disease or injury, the removal of trimmings, rubbish, debris and other solid waste and the cleaning, sandblasting and painting of walls and other improvements to remove or cover graffiti; and (ii) incidental costs associated with the maintenance and servicing described in subparagraph (i), above, including the costs of preparation of engineering reports and the collection of the assessment. -2- 2007-459 (c) Owner for itself and its successors and assigns hereby waives its right to protest the formation of the Landscape District and further waives any right to object to the performance by the City of any of the maintenance or furnishing of services described in Section 3(b) under City Municipal Code Section 12.90, et seq., or other applicable law, subject to the provisions of Section 4 below. Owner for itself and its successors and assigns hereby waives any requirement for giving or receipt of notice from the City with respect to the formation of the Landscape District or, except as provided in Section 4(ii), the ordering or performance of any maintenance or furnishing of services in the Assessment District Areas described in Section 3(b). Section 4. Owner for itself and its successors and assigns hereby waives right to protest the amount of any assessment which may hereafter be levied by the City on the Property for the Landscape District under City Municipal Code Section 12.90, et seq., or other applicable law including, without limitation, Streets and Highways Code Section 22620, et seq., in any year for the performance by the City of any maintenance or services in the Assessment District Areas, and hereby consents to the levy of a special assessment on the Property therefor, subject to the following conditions: (i) the City shall have completed the formation of the Landscape District as evidenced by the recordation of an assessment district boundary map which conforms with this Agreement and the requirements of Streets and Highways Code Section 3111 or filed a resolution confirming the formation of such Landscape District and assessment under other applicable law, including, without limitation, Streets and Highways Code Section 22641; (ii) pursuant to a Default Assessment Agreement by and between the City and Owner in such form as is typically used by the City, subject to City approval at its discretion, in the event Owner or any then current owner of the Property shall have failed to perform the maintenance or furnishing of services described in Section 3(b) within the Assessment District Areas or any portion thereof following at least sixty(60)days prior written notice from the City ordering Owner or the then current owners of the Property to perform the maintenance or furnishing of services described in such notice(subject to prudent seasonal planting practices); and (iii) the amount of the assessment levied by the City for maintenance or furnishing of services it may perform under subparagraph (ii), above, shall not exceed the lesser of: (A) the actual costs paid by the City for the performance of such maintenance and servicing, plus a reasonable administrative charge; or: (B) Fifty Cents ($0.50) multiplied by the number of square feet within the Assessment District Areas on which the City performed the maintenance or furnishing of services described in the notice, adjusted as of July 1 of each year following the recordation of this Agreement by an amount equal to the change (if any)over the twelve(12) months preceding the last such adjustment in the Consumer Price Index (all items) all urban consumers (with a base 1982 = 100) for the San Bernardino-Riverside metropolitan areas as published by the United States Department of Labor,Business of Labor Statistics. -3- 2007-459 Section 5. Owner for itself and its successors and assigns hereby acknowledges and consents to the collection of any special assessments as may hereafter be levied by the City under Section 4, at the same time and in the same mariner as county property taxes are collected and all the laws providing for the collection and enforcement of county property taxes shall apply to the collection and enforcement of any such assessments Section 6. This Agreement shall not be withdrawn. modified or amended by the owner of the Property without the prior written consent of the City, which consent the City may grant or withhold in its sole and absolute discretion and such consent of the City shall be evidenced by an instrument in recordable form. THIS AGREEMENT has been executed by the authorized officers of Owner and the City on the date indicated next to the signatures of each of them. CITY: CITY OF SAN BERNARDINO,CALIFORNIA By: atric J. Morris, a Dr Date: Marcha0, 2007 Approved as to Form: mes F. Penman, ity Attorney Date: March , 2007 (Signatures continued on the following page.) -4- 2007-459 OWNER: HSB 1-215,L.P., a California limited partnership By: HSB GP, LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership, its sole member By: Hillwood Associates,L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liabilit)�company, its general artner� !e. By: C . Name: 3Y �w� t�1 ( 1c�• 1� Title: r-acwll[: :.rC.� 1; '.•_,.�ctxa;+' Date: March.2�7 2007 (Signatures continued on the following page.) -5- 2007-459 SE 1-215,L.P., a California limited partnership By: HSB GP,LLC, a California limited liability company, Its general partner By: HGI GP, LLC, a Texas limited liability company, its sole member By: HGI Group, L.P., a Texas limited partnership,its sole member By: Hillwood Associates, L.P., a Texas limited partnership, its general partner By: Hillwood Development Company, LLC, a Texas limited liability company, its general pa r . By. \ —, Name:' _T•:��. t!1 1 11 Ilk Title: -- C (— Date: March 71, 2007 HILLWOOD ENTERPRISES,L.P., a Texas limited partnership By: AHB, LLC, a Texas limited liability company, its general partner Name: 'Y h AN. \a. Title: `S.<�.a: L.ta Vr:-•.ukr.rl- Date: (k1 dv A% ;1--). Z t 7 -6- 2007-459 CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT State of California ) )SS. County of San Bernardino ) On March 27.2007,before me,Marissa L.Johnson,Notary Public,personally appeared John M.Magness , ❑X personally known to me ❑ proved to me on the basis of satisfactory evidence to be the person(s) whose namc(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the Pa�RgML.lONN50N person(s), or the entity upon behalf of which the CommWbn f 1618670 person(s)acted,executed the instrnment. Pl6totP Pubic•Co lbmW Son leowd1no Cou* WITNESS my hand and official seal. My Comm.BgINaIMf 9, Signature of Notary Public ss*ss«ssss***sssssssssss OPTIONAL sssssssss**sssssssss*s*s**ss Though the information below is not required by law, it may prove valuable to persons relying on this document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Agreement and Petition of Property Owner Requesting Formation of Landscape Maintenance District and Consent to the Levy of Special Assessments Thereunder Document Date: March 27,2007 Number of Pages: Six(6)plus exhibits Signer(s)Other Than Named Above: Capacity(ies) Claimed by Signer RIGHT THUMBPRINT OF SIGNER Signer's Name: ❑ Individual Top of thumb hem ❑ Corporate Officer—Title(s): ❑ Partner--O Limited ❑ General ❑ Attorney-in-Fact • Trustee • Guardian or Conservator ❑ Other: Signer is Representing: 2007-459 EXHIBIT A Parcels 1, 2, 3, 4, 5 and 6 of the propegy that is the subject of City of San Bernardino Parcel Map No. 17375 recorded at PW g 'official Records, San Bernardino County, California. A copy of Page 8 of Parcel Map No. 1737 showing Lot C, Lot D and the Storm Drain Easement Area is attached as Exhibit A-1. 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