HomeMy WebLinkAboutReso 45-2016 RESOLUTION NO, 45-2016
CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION APPROVING A PERFORMANCE DEED OF
TRUST WITH ROTARY PLAZA, INC FOR 300 MILLER
AVENUE AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID AGREEMENT.
WHEREAS, the City of South San Francisco ("City") is the owner of certain property
certain real property (the "Property") located in the City, known as County Assessor's Parcel
Numbers 012-311-230 (310 Miller Avenue),012-311-240(312 Miller Avenue),012-311-250(314
Miller Avenue and 012-311-260; and,
WHEREAS,on June 29,2011 the legislature of the State of California(the"State")adopted
Assembly Bill x1 26 ("AB 26"), which amended provisions of the Redevelopment Law; and,
WHEREAS, pursuant to AB 26 and the California Supreme Court decision in California
Redevelopment Association, et al. v.Ana Matosantos, et al.,which upheld AB 26(together with AB
1484, the "Dissolution Law"), the former South San Francisco Redevelopment Agency was
dissolved on February 1, 2012; and,
WHEREAS,pursuant to the Dissolution Law,the State of California Department of Finance
("DOF"), on August 31, 2012, approved transfer of certain properties to the City of South San
Francisco in its capacity as the Successor Housing Agency; and,
WHEREAS,in January of 2015,the City and Rotary Plaza,Inc("Developer")entered into
an Exclusive Negotiation Rights Agreement ("ENRA") that established a mutual understanding
among the City and the Developer regarding the potential development of the Property; and,
WHEREAS, the Developer has proposed construction of a mixed-use residential
development ("Project"), consisting of 80 affordable senior housing units, 1 manager's unit and
1,993 square feet of community assembly space over.56 acres at the following addresses: 310 Miller
Avenue, 312 Miller Avenue, 314 Miller Avenue and a municipal parking lot(collectively referred to
as "300 Miller Avenue" or"Project Site") in the City; and,
WHEREAS,the City is interested in selling the Property to the Developer as contemplated
in the ENRA, contingent upon approval of a Purchase and Sale Agreement, an Affordable Housing
Regulatory Agreement, a Performance Deed of Trust and a Development Agreement by the City
Council,Developer securing all funding for the Project,and Developer obtaining all applicable land
use entitlements from the City necessary to construct the Project on the Project Site; and,
WHEREAS, the City and the Developer wish to enter into a Performance Deed of Trust
("Deed of Trust")to create a lien and security interest in the Property in favor of the City to ensure
that the Developer complies with the affordability restrictions, attached hereto and incorporated
herein as Exhibit A; and,
WHEREAS, approval of a Purchase and Sale Agreement,Affordable Housing Regulatory
Agreement and Development Agreement are being undertaken in separate resolutions and an
ordinance; and
WHEREAS,Developer seeks approval of a Conditional Use Permit,Design Review,Waiver
and Modification,Density Bonus and Parking Reduction for the Project("Land Use Entitlements")
through a separate resolution; and,
WHEREAS,approval of the Developer's proposal is considered a"project"for purposes of
the California Environmental Quality Act, Pub, Resources Code § 21000, et seq. ("CEQA"); and,
WHEREAS, on January 28, 2015, the City Council certified an Environmental Impact
Report("EIR") (State Clearinghouse number 201310200 1)in accordance with the provisions of the
California Environmental Quality Act (Public Resources Code, §§ 21000, et seq., "CEQA") and
CEQA Guidelines, which analyzed the potential environmental impacts of the development of the
Downtown Station Area Specific Plan ("DSASP"); and,
WHEREAS,on January 28,2015,the City Council also adopted a Statement of Overriding
Considerations("SOC") in accordance with the provisions of the California Environmental Quality
Act (Public Resources Code, §§ 21000, et seq., "CEQA") and CEQA Guidelines, which carefully
considered each significant and unavoidable impact identified in the FIR and found that the
significant environmental impacts are acceptable in light of the project's economic, legal, social,
technological and other benefits; and,
WHEREAS,the Project is statutorily exempt from CEQA pursuant to Government Code §
65457 as a residential development project that is undertaken to implement and is consistent with the
DSASP and none of the conditions specified in CEQA § 21166 or CEQA Guidelines § 15162 have
occurred; and
WHEREAS, the Project is also categorically exempt from CEQA pursuant to CEQA
Guidelines § 15332 as an infill development project and none of the exceptions to the exemption
specified in CEQA Guidelines § 15300.2 have occurred; and
WHEREAS, the City prepared an Environmental Consistency Analysis for the Project
pursuant to CEQA Guidelines § 15168(c)(2)and concluded that in accordance with the requirernents
of CEQA Guidelines § 15162, as a result of the Project, no new effects could occur and no new
mitigation would be required even if the Project was not exempt from CEQA. The Environmental
Consistency Analysis demonstrates that the Project would not result in any new significant
environmental effects or a substantial increase in the severity of any previously identified effects
beyond those disclosed and analyzed in the DSASP EIR certified by City Council nor would any
new mitigation measures be required; and,
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of South San
Francisco does hereby take the following actions:
(1) Finds and determines that the recitals are true and correct;
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(2) Approves the Deed of Trust in substantially the same form attached hereto as Exhibit
A; and,
(3) Authorizes the City Manager to enter into and execute the Deed of Trust on behalf of
the City, in substantially the same form as attached hereto as Exhibit A, to make any revisions,
amendments,or modifications, subject to review and approval of City Attorney, deemed necessary
to carry out the intent of this Resolution and which do not materially alter or increase the City's
obligations thereunder.
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
City Council of the City of South San Francisco at a regular meeting held on the 13th day of April,
2016 by the following vote:
AYES: Councilmembers liar Matsumoto Richard A. Garbarino and Liza Normandy
Vice Mayor Pradeep Gupta and Mayor Mark N. Addiego
NOES: None
ABSTAIN: None
ABSENT: None
ATTEST(&
City Clerk
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EXHIBIT A
Performance Deed of Trust
2629619.1
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Recording requested by and when recorded
mail to:
City of South San Francisco
400 Grand Ave
South San Francisco, CA 94080
Attention: City Manager
EXEMPT FROM RECORDING FEES
PER
GOVERNMENT CODE§§6103,27383
Space above this line for Recorder's use.
APNs: 012-311-230, 240, 250 and 260
PERFORMANCE DEED OF TRUST WITH ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS PERFORMANCE DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT AND FIXTURE FILING ("Performance Deed of Trust") is made as of
7 2016 by Rotary Plaza, Inc-, a California nonprofit public benefit
corporation ("Trustor") to First American Title Company as trustee ("Trustee"), for the benefit
of the City of South San Francisco, a California municipal corporation ("Beneficiary").
RECITALS
A. Beneficiary has agreed to sell certain real property located at 300 Miller Avenue,
South San Francisco, California, also known as San Mateo Assessor's Parcel Number 0 12-311-230, 240, 250 and 260, and more particularly described in Exhibit A attached hereto (the
"Land") to Trustor, and Trustor has agreed to purchase the Land from the Beneficiary and to
construct certain improvements thereon pursuant to the terms set forth in that certain
Development Agreement between Beneficiary and Trustor dated 2016 (the
"DA").
B. The Land is located within the City of South San Francisco, and concurrently with
the recordation of this instrument, Beneficiary and Trustor have entered into an Affordable
Housing Regulatory Agreement and Declaration of Restrictive Covenants dated as of
5 2016 and executed by and among Beneficiary and Trustor (the "Regulatory
Agreement"). The Regulatory Agreement will be recorded in the Official Records of San Mateo
County concurrently herewith. Capitalized terms used herein without definition shall have the
meaning ascribed to such terms in the Regulatory Agreement. The DA, Regulatory Agreement
and this Performance Deed of Trust are collectively referred to as "City Documents".
C. Trustor shall use the Land to construct, own and operate a multi-family residential
building with eighty-one (81) dwelling units (the "Project"), The Project will contain at
minimum of thirty-nine (39) units restricted to very-low income households, forty-one (41) units
restricted to moderate-income households, and one (1) managers unit. All units in the Project,
except for one managers unit, shall be restricted to senior households.
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D. As a condition precedent to the entering into the DA, Beneficiary has required
that Trustor enter into this Performance Deed of Trust and grant to Trustee for the benefit of
Beneficiary, a lien and security interest in the Property (as hereafter defined) to secure Trustor's
performance under the Regulatory Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is agreed as follows:
1. Grant in Trust.In consideration of the foregoing and for the purpose of securing payment
and performance of the Secured Obligations defined and described in Section 2, Trustor hereby
irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the
benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title
and interest which Trustor now has or may later acquire in and to the Land, and all of the
following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or
constructed on the Land ("Improvements");
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires
and other rights used in connection with the Land or the Improvements or as a means of access
thereto, whether now or hereafter owned or constructed or placed upon or in the Land or
Improvements and all existing and future privileges, rights, franchises and tenements of the
Land, including all minerals, oils, gas and other commercially valuable substances which may be
in, under or produced from any part of the Land, and all water rights, rights of way, gores or
strips of land, and any land lying in the streets, ways, and alleys, open or proposed, in front of or
adjoining the Land and Improvements (collectively, "Appurtenances");
C. All machinery, equipment, fixtures, goods and other personal property of the
Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor and now or
hereafter located at or used in connection with the Land, the Improvements or Appurtenances,
and all improvements, restorations, replacements, repairs, additions or substitutions thereto
(collectively, "Equipment");
d. All existing and future leases, subleases, licenses, and other agreements relating to
the use or occupancy of all or any portion of the Land or Improvements (collectively, "Leases"),
all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other
payments which may now or hereafter accrue or otherwise become payable thereunder to or for
the benefit offrustor, including but not limited to security deposits (collectively, "Rents");
e. All insurance proceeds and any other proceeds from the Land, Improvements,
Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made
with or other security deposits given to utility companies, all claims or demands relating to
insurance awards which the Trustor now has or may hereafter acquire, including all advance
payments of insurance premiums made by Trustor, and all condemnation awards or payments
now or later made in connection with any condemnation or eminent domain proceeding
("Proceeds");
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f All revenues, income, rents, royalties,payments and profits produced by the
Land, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired
by Trustor ("Gross Revenues");
9. All architectural, structural and mechanical plans, specifications, design
documents and studies produced in connection with development of the Land and construction of
the Improvements (collectively, "Plans"); and
h. All interests and rights in any private or governmental grants, subsidies, loans or
other financing provided in connection with development of the Land and construction of the
Improvements (collectively, "Financing").
All of the above-referenced interests of Trustor in the Land, Improvements,
Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as
hereby conveyed to Trustee or made subject to the security interest herein described are
collectively referred to herein as the "Property."
2. Obligations Secured. This Performance Deed of Trust is given for the purpose of
securing payment and performance of the following (collectively,the "Secured Obligations"):
(i) all present and future obligations of Trustor to Beneficiary under the DA; (ii) all present and
future obligations of Trustor to Beneficiary under the Regulatory Agreement, including but not
limited to the fifty-five (55) year restriction of the project to occupancy by a combination of very
low-income and moderate-income seniors as more particularly described in the Regulatory
Agreement, (iii) all additional present and future obligations of Trustor to Beneficiary under any
other agreement or instrument acknowledged by Trustor(whether existing now or in the future)
which states that it is or such obligations are, secured by this Performance Deed of Trust; (iv) all
obligations of Trustor to Beneficiary under all modifications, supplements, amendments,
renewals, or extensions of any of the foregoing, whether evidenced by new or additional
documents; and (v) reimbursement of all amounts advanced by or on behalf of Beneficiary to
protect Beneficiary's interests under this Performance Deed of Trust or any other City Document
as such may be modified, supplemented, amended, renewed or extended. Notwithstanding any
other provision in this Performance Deed of Trust, Trustee agrees to subordinate this
Performance Deed of Trust to the lien of a senior lender providing funds to develop the Project
in accordance with the terms of the City Documents and consistent with the provisions of
Section 8.3 of the Regulatory Agreement.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely,
presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits,revenue,
income and proceeds of the Property. This is an absolute assignment and not an assignment for
security only. Beneficiary hereby confers upon Trustor a license to collect and retain such Rents,
royalties, issues, profits, revenue, income and proceeds as they become due and payable prior to
any Event of Default hereunder. Upon the occurrence of any such Event of Default, Beneficiary
may terminate such license without notice to or demand upon Trustor and without regard to the
adequacy of any security for the indebtedness hereby secured, and may either in person,by
agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property
or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including
those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees,to any indebtedness secured hereby, and in such
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order as Beneficiary may detennine. Beneficiary's right to the rents, royalties, issues, profits,
revenue, income and proceeds of the Property does not depend upon whether or not Beneficiary
takes possession of the Property. The entering upon and taking possession of the Property, the
collection of such rents, issues, and profits, and the application thereof as aforesaid, shall not
cure or waive any default or notice of default hereunder or invalidate any act done pursuant to
such notice. If an Event of Default occurs while Beneficiary is in possession of all or part of the
Property and/or is collecting and applying Rents as permitted under this Performance Deed of
Trust, Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke
every right and remedy afforded any of them under this Performance Deed of Trust and at law or
in equity, including the right to exercise the power of sale granted hereunder. Regardless of
whether or not Beneficiary, in person or by agent, takes actual possession of the Land or the
Improvements, Beneficiary shall not be deemed to be a "mortgagee in possession," shall not be
responsible for performing any obligation of Trustor under any Lease, shall not be liable in any
manner for the Property, or the use, occupancy, enjoyment or operation of any part of it, and
shall not be responsible for any waste committed by'Trustor, lessees or any third parties, or for
dangerous or defective condition of the Property or any negligence in the management, repair or
control of the Property. Absent Beneficiary's written consent, Trustor shall not accept
prepayment of Rents for any rental period exceeding one month.
4. Security Agreement. The parties intend for this Performance Deed of Trust to create a
lien on the Property, and an absolute assignment of the Rents and Leases, all in favor of
Beneficiary. The parties acknowledge that some of the Property may be determined under
applicable law to be personal property or fixtures. To the extent that any Property may be or be
determined to be personal property, Trustor as debtor hereby grants to Beneficiary as secured
party a security interest in all such Property to secure payment and performance of the Secured
Obligations. This Performance Deed of Trust constitutes a security agreement under the
California Uniform Commercial Code, as amended or recodified from time to time (the "UCC"),
covering all such Property. To the extent such Property is not real property encumbered by the
lien granted above, and is not absolutely assigned by the assignment set forth above, it is the
intention of the parties that such Property shall constitute "proceeds,products, offspring, rents, or
profits" (as defined in and for the purposes of Section 552(b) of the United States Bankruptcy
Code, as such section may be modified or supplemented) of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes
Beneficiary, as secured party, to file such financing statements and amendments thereof and such
continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and
preserve Beneficiary's security interest in the Property and Rents, without requiring any signature
or further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and
costs that Beneficiary may incur in filing such documents in public offices and in obtaining such
record searches as Beneficiary may reasonably require. If any financing statement or other
document is filed in the records normally pertaining to personal property,that filing shall not be
construed as in any way derogating from or impairing this Performance Deed of Trust or the
rights or obligations of the parties under it.
Everything used in connection with the Property and/or adapted for use therein and/or
which.is described or reflected in this Performance Deed of Trust is, and at all times and for all
purposes and in all proceedings both legal or equitable shall be regarded as part of the estate
encumbered by this Performance Deed of Trust irrespective of whether(i) any such item is
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physically attached to the Improvements, (ii) serial numbers are used for the better identification
of certain equipment items capable of being thus identified in a recital contained herein or in any
list filed with Beneficiary, or (iii) any such item is referred to or reflected in any such financing
statement so filed at any time. Similarly, the mention in any such financing statement of(1)
rights in or to the proceeds of any fire and/or hazard insurance policy, or (2) any award in
eminent domain proceedings for a taking or for lessening of value, or (3) Trustor's interest as
lessor in any present or future lease or rights to income growing out of the use and/or occupancy
of the property conveyed hereby, whether pursuant to lease or otherwise, shall not be construed
as in any way altering any of the rights of Beneficiary as determined by this instrument or
impugning the priority of Beneficiary's lien granted hereby or by any other recorded document.
Such mention in any financing statement is declared to be solely for the protection of Beneficiary
in the event any court or judge shall at any time hold, with respect to the matters set forth in the
foregoing clauses (1), (2), and (3), that notice of Beneficiary's priority of interest is required in
order to be effective against a particular class of persons, including but not limited to the federal
government and any subdivisions or entity of the federal government.
6. Fixture Filing. This Performance Deed of Trust is intended to be and constitutes a fixture
filing pursuant to the provisions of the UCC with respect to all of the Property constituting
fixtures, is being recorded as a fixture financing statement and filing under the UCC, and covers
property, goods and equipment which are or are to become fixtures related to the Land and the
Improvements. Trustor covenants and agrees that this Performance Deed of Trust is to be filed
in the real estate records of San Mateo County and shall also operate from the date of such filing
as a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC.
This Performance Deed of Trust shall also be effective as a financing statement covering
minerals or the like (including oil and gas) and accounts subject to the UCC, as arriended.
Trustor shall be deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured
party" for all purposes under the UCC.
7. Trustor's Representations, Warranties and Covenants; Rights and Duties of the Parties.
7.1 Representations and Warranties. Trustor represents and warrants that, subject to
the provisions of the DA: (i) Trustor lawfully possesses and holds fee simple interest in the Land
and the Improvements, (ii) Trustor has good and marketable title to all of the Property; (iii)
Trustor has the full and unlimited power, right and authority to encumber the Property and assign
the Rents; (iv) subject only to encumbrances of record and senior liens permitted pursuant to the
DA or otherwise approved in writing by Beneficiary("Permitted Encumbrances"), this
Performance Deed of Trust creates a valid lien on Trustor's entire interest in the Property; (v)
except with respect to Permitted Encumbrances, Trustor owns the Property free and clear of all
deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts,
(vi) there is no financing statement affecting the Property on file in any public office other than
as disclosed in writing to Beneficiary; and (vii) Trustor's correct current address is specified in
Section 10.2.
Trustor further represents and warrants that this Performance Deed of Trust and all other
documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly
authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do
not violate the provisions of any agreement to which Trustor is a party or which affects the
Property. Trustor further represents and warrants that there are no pending, or to Trustor's
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knowledge, threatened actions or proceedings before any court or administrative agency which
may adversely affect Trustor's ownership of the Property.
7.2 Performance of Secured Obligations. Trustor shall perform all obligations of
Trustor pursuant to the DA and in accordance with the respective terms thereof.
7.3 Preservation and Maintenance of Property; Compliance with Laws. Trustor shall
keep the Land and Improvements in good repair and condition, and from time to time shall make
necessary repairs, renewals and replacements thereto so that the Property shall be preserved and
maintained. Trustor covenants to comply with all federal, state and local laws,regulations,
ordinances and rules applicable to the Property and the Project, including without limitation all
applicable requirements of state and local building codes and regulations, Prevailing Wage Laws,
and all applicable statutes and regulations relating to accessibility for the disabled. Trustor shall
not remove, deniolish or materially alter any Improvement without Beneficiary's consent, shall
complete or restore promptly and in good and workmanlike manner any building, fixture or other
improvement which may be constructed, damaged, or destroyed thereon, and shall pay when due
all claims for labor performed and materials famished therefor. Trustor shall use the Land and
Improvements solely for purposes authorized by the DA and the Regulatory Agreement, shall not
commit or allow waste of the Property, and shall not commit or allow any act upon or use of the
Property which would violate any applicable law or order of any governmental authority, nor
shall Trustor bring on or keep any article on the Property or cause or allow any condition to exist
thereon which could invalidate or which would be prohibited by any insurance coverage required
to be maintained on the Property pursuant to the Regulatory Agreement.
7.4 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event
of Default hereunder if any Transfer(as defined in the DA) of the Property, any part thereof, or
interest therein occurs in violation of the requirements of the DA;provided, however, that the
Trustor shall be permitted to assign this Perfoiniance Deed of Trust or Transfer an interest in the
Property to a limited liability company of which Trustor is a member of which Trustor is a
member and holds not less than a 49% ownership interest ("Trustor LLC"), or a limited
partnership of which the Trustor or Trustor LLC is a partner without additional consent. If any
such Transfer shall occur in violation of such requirements, without limiting the provisions of
Section 8 hereof, all obligations secured by this Performance Deed of Trust, irrespective of the
maturity dates of such obligations, shall at the option of Beneficiary, and without demand,
immediately become due and payable, subject to any applicable cure period.
7.5 Inspections; Books and Records. Beneficiary and its agents and representatives
shall have the right at any reasonable time upon reasonable notice to enter upon the Land and
inspect the Property to ensure compliance with the Regulatory Agreement. Trustor shall
maintain complete and accurate books of account and other records (including copies of
supporting bills and invoices) adequate to document the operation of the Property, together with
copies of all written contracts, Leases and other instruments which affect the Property. The
books, records, contracts, Leases and other instruments shall be subject to examination and
inspection at any reasonable time by Beneficiary following two business days prior notice,
7.6 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all
taxes, levies, assessments and other charges affecting the Property that are (or if not paid may
become) a lien on all or part of the Property. Trustor may, at Trustor's expense, contest the
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validity or application of any tax, levy, assessment or charge affecting the Property by
appropriate legal proceedings promptly initiated and conducted in good faith and with due
diligence, provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any
part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result of such
contest, and (ii) Trustor shall have posted a bond or furnished other security as may reasonably
be required from time to time by Beneficiary; and provided further that Trustor shall timely
make any payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
Trustor shall immediately discharge or cause to be discharged any lien on the Property
(other than encumbrances approved by Beneficiary as of the date hereof in writing). Trustor
shall pay when due each obligation secured by or reducible to a lien, charge or encumbrance
which now does or later may encumber or appear to encumber all or part of the Property or any
interest in it, whether or not such lien, charge or encumbrance is or would be senior or
subordinate to this Performance Deed of Trust. Trustor shall not be required to pay any tax,
levy, charge or assessment so long as its validity is being actively contested in good faith and by
appropriate actions and/or proceedings.
7,7 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances,
whether released of record or not, which are discharged in whole or in part by Beneficiary in
accordance with this Performance Deed of Trust.
7.8 Hazard, Liability,and Workers' Compensation..Insurance. At all times during the
term hereof, Trustor shall at Trustor's expense, maintain insurance policies in accordance with
the requirements set forth in the DA and Regulatory Agreement. Trustor shall file with
Beneficiary prior to the commencement of the term hereof, certificates (or such other proof as
Beneficiary may reasonably require, (including without limitation copies of the required
insurance policies) evidencing each of the insurance policies and endorsements thereto as
required pursuant to the DA and Regulatory Agreement, and such certificates (or policies) shall
provide that at least thirty (30) days' prior written notice shall be provided to Beneficiary prior to
the expiration, cancellation or change in coverage under each such policy. If any insurance
policy required pursuant to the Grant Documents is canceled or the coverage provided
thereunder is reduced, Trustor shall, within ten (10) days after receipt of written notice of such
cancellation or reduction in coverage, but in no event later than the effective date of cancellation
or reduction, file with Beneficiary a certificate showing that the required insurance has been
reinstated or provided through another insurance company or companies. Upon failure to so file
such certificate, Beneficiary may, without further notice and at its option, procure such insurance
coverage at Trustor's expense, and Trustor shall promptly reimburse Beneficiary for such
expense upon receipt of billing from Beneficiary.
7.9 Hazardous Materials. Trustor shall not cause or permit any Hazardous Material
(as defined in Section 12.1 of the Purchase and Sale Agreement) to be brought upon, kept, stored
or used in, on, under, or about the Land by Trustor, its agents, employees, contractors or invitees
except for incidental supplies ordinarily used in the construction and operation of the Project in
compliance with all applicable laws, and shall not cause any release of Hazardous Materials into,
onto, under or through the Land. If any Hazardous Material is discharged, released, dumped, or
spilled in, on, under, or about the Land and results in any contamination of the Land or adjacent
property, or otherwise results in the release or discharge of Hazardous Materials in, on, under or
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from the Land, Trustor shall promptly take all actions at its sole expense as are necessary to
comply with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and
hold Beneficiary and its elected and appointed officials, officers, agents and employees
(collectively, "Indemnitees") harmless from and against any and all loss, claim, liability, damage,
demand,judgment, order, penalty, fine, injunctive or other relief, cost, expense (including
reasonable fees and expenses of attorneys, expert witnesses, and other professionals advising or
assisting Beneficiary), action, or cause of action (all of the foregoing,hereafter individually
"Claim" and collectively"Claims") arising in connection with the breach of Trustor's covenants
and obligations set forth in this Section 7.9 or otherwise arising in connection with the presence
or release of Hazardous Materials in, on, under, or from the Property. The foregoing indemnity
includes, without limitation, all costs of investigation, assessment, containment,removal,
remediation of any kind, and disposal of Hazardous Materials, all costs of determining whether
the Land is in compliance with Environmental Laws, all costs associated with bringing the Land
into compliance with all applicable Environmental Laws, and all costs associated with claims for
damages or injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor's own cost and
expense, do all of the following:
(i)pay or satisfy any judgment or decree that may be entered against any Indeninitee or
Indemnitees in any legal or administrative proceeding incident to any matters against which
Indemnitees are entitled to be indemnified under this Performance Deed of Trust;
(ii) reimburse Indemnitees for any expenses paid or incurred in connection with any
matters against which Indemnitees are entitled to be indemnified under this Performance Deed of
Trust; and
(iii) reimburse Indemnitees for any and all expenses, including without limitation out-of-
pocket expenses and fees of attorneys and expert witnesses, paid or incurred in connection with
the enforcement by Indemnitees of their rights under this Performance Deed of Trust, or in
monitoring and participating in any legal or administrative proceeding.
Trustor's obligation to indemnify the Indemnitees shall not be limited or impaired by any
of the following, or by any failure of Trustor to receive notice of or consideration for any of the
following: (i) any amendment or modification of the DA or Regulatory Agreement; (ii) any
extensions of time for performance required by the DA or Regulatory Agreement; (iii) any
provision of the DA or Regulatory Agreement limiting Beneficiary's recourse to property
securing the Secured Obligations, or limiting the personal liability of Trustor, or any other party
for payment of all or any part of the Secured Obligations; (iv) the accuracy or inaccuracy of any
representation and warranty made by Trustor under this Performance Deed of Trust or by Trustor
or any other party under any documents, (v) the release of Trustor or any other person, by
Beneficiary or by operation of law, from perfonnance of any obligation under the DA or
Regulatory Agreement; (vi) the release or substitution in.whole or in part of any security for the
Secured Obligations; and (vii) Beneficiary's failure to properly perfect any lien or security
interest given as security for the Secured Obligations.
12
The provisions of this Section 7.9 shall be in addition to any and all other obligations and
liabilities that Trustor may have under applicable law, and each Indemnitee shall be entitled to
indemnification under this Section without regard to whether Beneficiary or that Tridemnitee has
exercised any rights against the Property or any other security, pursued any rights against any
guarantor or other party, or pursued any other rights available under the Regulatory Agreement
or applicable law. The obligations of Trustor to indemnify the Indemnitees under this Section
shall survive any repayment or discharge of the Secured Obligations, any foreclosure proceeding,
any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of
the lien of this Performance Deed of Trust.
Without limiting any of the remedies provided in this Performance Deed of Trust, Trustor
acknowledges and agrees that each of the provisions in this Section 7.9 is an environmental
provision (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by
Trustor relating to real property security(the "Environmental Provisions"), and that Trustor's
failure to comply with any of the Environmental Provisions will be a breach of contract that will
entitle Beneficiary to pursue the remedies provided by Section 736 of the California Code of
Civil Procedure ("Section 736") for the recovery of damages and for the enforcement of the
Environmental Provisions. Pursuant to Section 736, Beneficiary's action for recovery of
damages or enforcement of the Environmental Provisions shall not constitute an action within
the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money
judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b,
580d, or 726(b) of the California Code of Civil Procedure.
"Environmental Law"means all federal, state or local statutes, ordinances, rules,
regulations, orders, decrees,judgments or common law doctrines, and provisions and conditions
of permits, licenses and other operating authorizations regulating, or relating to, or imposing
liability or standards of conduct concerning (i) pollution or protection of the environment,
including natural resources; (ii) exposure of persons, including employees and agents, to any
Hazardous Material (as defined above) or other products, raw materials, chemicals or other
substances; (iii) protection of the public health or welfare from the effects of by-products,
wastes, emissions, discharges or releases of chemical substances from industrial or commercial
activities; (iv) the manufacture, use or introduction into commerce of chemical substances,
including without limitation, their manufacture, formulation, labeling, distribution,
transportation, handling, storage and disposal; or(iv) the use, release or disposal of toxic or
hazardous substances or Hazardous Materials or the remediation of air, surface waters,
groun,dwaters or soil, as now or may at any later time be in effect, including but not limited to the
Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental
Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous
Materials Transportation Authorization.Act [49 U.S.C. Section 5 10 1, et seq.], the Resource
Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control
Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California
Underground Storage of Hazardous Substances Act [California Health and Safety Code Section
25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety
Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety
Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act
[California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water
Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are
hereafter amended, together with any regulations promulgated thereunder.
13
7.10 Notice of Claims; Defense of Security; Reimbursement of Costs.
(a) Notice of Claims. Truster shall provide written notice to Beneficiary of any
uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or
property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within three
business days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive
timely notice of, and shall have a right to cure, any default under any other financing document
or other lien affecting the Property and shall use best efforts to ensure that provisions mandating
such notice and allowing such right to cure shall be included in all such documents. Within three
business days of Trustor's receipt thereof, Trustor shall provide Beneficiary with a copy of any
notice of default Trustor receives in connection with any financing document secured by the
Property or any part thereof.
(b) Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and
defend the Property.and title to and right of possession of the Property, the security of this
Performance Deed of Trust and the rights and powers of Beneficiary and Trustee created under
it, against all adverse claims.
(c) Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable
fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or
Trustee may render in connection with this Performance Deed of Trust, including without
limitation, fees and expenses related to provision of a statement of obligations or related to a
reconveyance. Truster further agrees to pay or reimburse Beneficiary for all costs, expenses and
other advances which may be incurred or made by Beneficiary or Trustee in any efforts to
enforce any terms of this Performance Deed of Trust, including without limitation any rights or
remedies afforded to Beneficiary or Trustee or both of them under Sections 7.15 and 8.2,
whether or not any lawsuit is filed, or in defending any action or proceeding arising under or
relating to this Performance Deed of Trust, including reasonable attorneys' fees and other legal
costs, costs of any disposition of the Property under the power of sale granted hereunder or any
judicial foreclosure, and any cost of evidence of title,
(d) Notice of Changes. Trustor shall give Beneficiary prior written notice of any
change in the address of Trustor and the location of any Property, including books and records
pertaining to the Property.
7.11 Indemnification.
(a) Trustor shall indemnify, defend (with counsel reasonably acceptable to
Beneficiary), and hold harmless the Trustee and the Indemnitees (as defined in Section 7.9) from
and against all Claims arising directly or indirectly in any manner in connection with or as a
result of(a) any breach of Trustor's covenants under any City Document, (b) any representation
by Truster in any City Document which proves to be false or misleading in any material respect
when made, (c) injury or death to persons or damage to property or other loss occurring on the
Land or in any improvement located thereon, whether caused by the negligence or any other act
or omission of Trustor or any other person or by negligent, faulty, inadequate or defective
design, building, construction or maintenance or any other condition or otherwise, (d) any claim,
demand or cause of action, or any action or other proceeding, whether meritorious or not,
brought or asserted against any Indemnitee which relates to or arises out of the Property, or any
14
City Document or any transaction contemplated thereby, or any failure of Trustor to comply with
all applicable state, federal and local laws and regulations applicable to the Property, provided
that no Indemnitee shall be entitled to indemnification under this Section for matters caused by
such Indemnitee's gross negligence or willful misconduct. The obligations of Trustor under this
Section shall be secured by this Performance Deed of Trust. Notwithstanding any contrary
provision contained herein, the obligations of Trustor under this Section shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of a deed in lieu of foreclosure, and
any release or reconveyance of this Performance Deed of Trust.
(b) Limitation of Liabilit . Beneficiary shall not be directly or indirectly liable to
Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise
of or failure to exercise any rights, remedies or powers granted to Beneficiary in this
Performance Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any
obligation or liability of Trustor under any agreement related to the Property or under this
Performance Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or
any third parties, or any dangerous or defective condition of the Property; or (iv) any loss
sustained by Trustor or any third party resulting from any act or omission of Beneficiary in
managing the Property after an Event of Default, unless the loss is caused by the willful
misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly waives and
releases all liability of the types described in this Section 7.11 b , and agrees that Trustor shall
assert no claim related to any of the foregoing against Beneficiary.
7.12 Insurance and Condemnation Proceeds. Subject to the rights of any senior
lienholders, any award of damages in connection with any condemnation for public use of, or
injury to the Property or any part thereof is hereby assigned and shall be paid to Beneficiary who
may apply such moneys to any payments due to Beneficiary from Trustor arising out of the DA,
the Regulatory Agreement or this Performance Deed of Trust secured hereby in such order as
Beneficiary may determine, or at the option of Beneficiary the entire amount so collected or any
part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
7.13 Release, Extension Modification. At any time and from time to time, without
liability therefor and without notice, upon written request of Beneficiary and presentation of this
Performance Deed of Trust for endorsement, Trustee may release or reconvey all or any part of
the Property, consent to the making of any map or plat of the Land or part thereof,join in
granting any easement or creating any restriction affecting the Property, or join in any extension
agreement or other agreement affecting the lien or charge hereof. At any time and from time to
time, without liability therefor and without notice, Beneficiary may(i) release any person
responsible for performance of any Secured Obligation, (ii) extend the time for performance or
otherwise alter the terms of performance of any Secured Obligation; (iii) accept additional real or
personal property of any kind as security for any Secured Obligation, or (iv) substitute or release
any property securing the Secured Obligations.
7,14 Reconveyance. Upon written request of Beneficiary stating that all of the Secured
Obligations have been performed in full, and upon surrender of this Performance Deed of Trust,
Trustee shall reconvey, without warranty, the Property or so much of it as is then held under this
Performance Deed of Trust. The recitals in any reconveyance executed under this Performance
Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness thereof.
Trustor shall pay all fees of Trustee and all recordation fees related to such reconveyance.
15
7.15 Cure, Protection of Security. Either Beneficiary or Trustee may cure any breach
or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary or
Trustee may also enter the Property and/or do any and all other things which it may in its sole
discretion consider necessary and appropriate to protect the security of this Performance Deed of
Trust. Such other things may include. appearing in and/or defending any action or proceeding
which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under,
this Performance Deed of Trust; paying, purchasing, contesting or compromising any
encumbrance, charge, lien or claim of lien which in Beneficiary's or Trustee's sole judgment is or
may be senior in priority to this Performance Deed of Trust, such judgment of Beneficiary or
Trustee to be conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or
paying any premiums or charges for insurance required to be carried hereunder; other-wise caring
for and protecting any and all of the Property; and/or employing counsel, accountants,
contractors and other appropriate persons to assist Beneficiary or Trustee. Beneficiary and
Trustee may take any of the actions permitted under this Section 7.15 either with or without
giving notice, except for notices required under applicable law. Any amounts disbursed by
Beneficiary pursuant to this paragraph shall become additional indebtedness secured by this
Performance Deed of Trust.
8. Default and Remedies
8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default
shall occur under this Performance Deed of Trust upon the expiration of any applicable notice
and cure periods following the occurrence of any one or more of the following events:
(i) Beneficiary's declaration of an Event of Default under the DA or the
Regulatory Agreement, subject to the expiration of any applicable cure period set forth in such
document;
(ii) Trustor fails to perform any monetary obligation which arises under this
Performance Deed of Trust, and does not cure that failure within ten (10) days following written
notice from Beneficiary or Trustee,
(iii) If Trustor's interest in the Property or any part thereof is voluntarily or
involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of
Section 7.4 hereof or if any other Transfer occurs in violation of the Grant Agreement;
(iv) Trustor fails to maintain the insurance coverage required under the
Regulatory Agreement or otherwise fails to comply with the requirements of Section 7.8 hereof
and Trustor fails to cure such default within the time specified in Section 7.8-
(v) Subject to Trustor's right to contest such charges as provided herein,
Trustor fails to pay taxes or assessments due on the Land or the Improvements or fails to pay any
other charge that may result in a lien on the Land or the Improvements, and Trustor fails to cure
such default within 10 days.
(vi) Any representation or warranty of Trustor contained in or made in
connection with the execution and delivery of this Performance Deed of Trust or in any
16
certificate or statement furnished pursuant hereto or in any other City Document proves to have
been false or misleading in any material adverse respect when made;
(vii) If, pursuant to or within the meaning of the United States Bankruptcy
Code or any other federal or state law relating to insolvency or relief of debtors ("Bankruptcy
Law"), Trustor (i) commences a voluntary case or proceeding; (ii) consents to the entry of an
order for relief against Trustor in an involuntary case; (iii) consents to the appointment of a
trustee, receiver, assignee, liquidator or similar official for Trustor; (iv) makes an assignment for
the benefit of its creditors; or(v) admits in writing its inability to pay its debts as they become
due.
(viii) If a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that (i) is for relief against Trustor in an involuntary case, (11) appoints a trustee,
receiver, assignee, liquidator or similar official for Trustor or substantially all of Trustor's assets,
or (iii) issues or levies a judgment, writ, warrant of attachment or similar process against the
Property or the Project, and in each case the order or decree is not released, vacated, dismissed or
fully bonded within 60 days after its issuance.
(ix) The holder of any other debt instrument secured by a mortgage or deed of
trust on the Property or part thereof declares an event of default thereunder and exercises a right
to declare all amounts due under that debt instrument immediately due and payable, subject to
the expiration of any applicable cure period set forth in such holder's documents; or
(x) Trustor fails to perform any obligation arising under this Performance
Deed of Trust other than one enumerated in this Section 8.1, and does not cure that failure either
within ten (10) days after written notice from Beneficiary or Trustee in the event of a monetary
default, or within thirty (30) days after such written notice in the event of a nonmonetary default,
provided that in the case of a nonmonetary default that in Beneficiary's reasonable judgment
cannot reasonably be cured within thirty (30) days, an Event of Default shall not arise hereunder
if Trustor commences to cure such default within thirty (30) days and thereafter prosecutes such
cure to completion with due diligence and in good faith and in no event later than 120 days
following receipt of notice of default.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth herein, at
any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all
of the rights and remedies described below, and may exercise any one or more or all, of the
remedies set forth in the DA or Regulatory Agreement, and any other remedy existing at law or
in equity. All of Beneficiary's rights and remedies shall be cumulative, and the exercise of any
one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to
collect all expenses incurred in pursuing the remedies provided hereunder, including without
limitation reasonable attorneys' fees and costs.
(a) Receiver. Beneficiary may apply to any court of competent jurisdiction
for, and obtain appointment of, a receiver for the Property.
(b) Entry. Beneficiary, in person, by agent or by court-appointed receiver,
may enter, take possession of, manage and operate all or any part of the Property, and may also
do any and all other things in connection with those actions that Beneficiary may in its sole
17
discretion consider necessary and appropriate to protect the security of this Performance Deed of
Trust. Such other things may include: taking and possessing copies of all of Trustor's or the
then owner's books and records concerning the Property; entering into, enforcing, modifying, or
canceling Leases on such terms and conditions as Beneficiary may consider proper; evicting
tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to
Trustor; completing any unfinished construction; and/or contracting for and making repairs and
alterations. If Beneficiary so requests, Trustor shall assemble all of the Property that has been
removed from the Land and make all of it available to Beneficiary at the site of the Land. Trustor
hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-in-fact to perform
such acts and execute such documents as Beneficiary in its sole discretion may consider to be
appropriate in connection with taking these measures, including endorsement of Trustor's name
on any instruments.
(c) UCC Remedies. Beneficiary may exercise any or all of the remedies
granted to a secured party under the UCC
(d) Judicial Action. Beneficiary may bring an action in any court of
competent jurisdiction to foreclose this Performance Deed of Trust in the manner provided by
law for foreclosure of mortgages on real property and/or to obtain specific enforcement of any of
the covenants or agreements of this Performance Deed of Trust.
(e) Power of Sale. Under the power of sale hereby granted, Beneficiary shall
have the discretionary right to cause some or all of the Property, including any Property which
constitutes personal property, to be sold or otherwise disposed of in any combination and in any
manner permitted by applicable law.
8.3 Reserved.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all
statutes of limitations as a defense to any action or proceeding brought against Trustor by
Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing
for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of
marshalling in the event of foreclosure; and (d) all presentments, demands for performance,
notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance
of this Performance Deed of Trust and of the existence, creation, or incurring of new or
additional indebtedness, and demands and notices of every kind.
10. Miscellaneous Provisions
10.1 Additional Provisions. The Regulatory Agreement grants further rights to
Beneficiary and contain further agreements and affirmative and negative covenants by Trustor
which apply to this Performance Deed of Trust and the Property.
10.2 Notices. Trustor requests that a copy of notice of default and notice of sale be
mailed to Trustor at the address set forth below. That address is also the mailing address of
Trustor as debtor under the UCC, Beneficiary's address set forth below is the address for
Beneficiary as secured party under the UCC. Except for any notice required under applicable
18
law to be given in another manner, all notices to be sent pursuant to this Performance Deed of
Trust shall be made in writing, and sent to the parties at their respective addresses specified
below or to such other address as a party may designate by written notice delivered to the other
parties in accordance with this Section. All such notices shall be sent by:
(a) personal delivery, in which case notice shall be deemed delivered upon
receipt;
(b) certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered two (2) business days after deposit, postage prepaid in the United
States mail;
(c) nationally recognized overnight courier, in which case notice shall be deemed
delivered one (1) day after deposit with such courier; or
(d) facsimile transmission, in which case notice shall be deemed delivered on
transmittal, provided that a transmission report is generated reflecting the accurate transmission
thereof.
Beneficiary: City of South San Francisco
400 Grand Avenue
South San Francisco, CA 94080
Attention: City Manager
Truster: Rotary Plaza, Inc.
c/o Beacon Development Group
6120 Stoneridge Mall Road, Suite 300
Pleasanton, CA 94588
Attention: Ancel Romero
Trustee: First American Title Company
10.3 Binding on Successors. The terms, covenants and conditions of this Performance
Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators,
executors, successors in interest, transferees, and assigns of the Truster, Beneficiary and Trustee;
provided however this Section 10.3 does not waive the provisions of Section 7.4.
10.4 Substitution of Trustee. Beneficiary inay from time to time or at any time
substitute a trustee or trustees to execute the trust hereby created, and when any such substitution
has been filed for record in the office of the Recorder of San Mateo County, it shall be
conclusive evidence of the appointment of such. trustee or trustees, and such new trustee or
trustees shall succeed to all of the powers and duties of the Trustee named herein.
10.5 Attorneys' Fees and Costs. In any action or proceeding to foreclose this
Performance Deed of Trust or to enforce any right of Beneficiary or of Trustee, Truster shall pay
19
to Beneficiary and Trustee all costs of such action or proceeding, including reasonable attorneys'
fees.
10.6 Governing Law; Severability; Interpretation. This Performance Deed of Trust
shall be governed by the laws of the State of California without regard to principles of conflicts
of laws. Trustor agrees that any controversy arising under or in relation to this Performance
Deed of Trust shall be litigated exclusively in the jurisdiction where the Land is located (the
"Property Jurisdiction"). The state and federal courts and authorities with jurisdiction in the
Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise
under or in relation to the Regulatory Agreement. Trustor irrevocably consents to service,
jurisdiction, and venue of such courts for any such litigation, and waives any other venue to
which it might be entitled by virtue of domicile, habitual residence or otherwise. If any
provision of this Performance Deed of Trust is held unenforceable or void, that provision shall be
deemed severable from the remaining provisions, and shall in no way affect the validity of this
Performance Deed of Trust. The captions used in this Performance Deed of Trust are for
convenience only and are not intended to affect the interpretation or construction of the
provisions herein contained. In this Performance Deed of Trust, whenever the context so
requires, the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any
obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or
Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to
any act or omission by Trustor shall not be construed as a consent to any other or subsequent act
or omission or to waive the requirement for Beneficiary's or Trustee's consent to be obtained in
any future or other instance. No amendment to or modification of this Performance Deed of
Trust shall be effective unless and until such amendment or modification is in writing, executed
by Trustor and Beneficiary. Without limiting the generality of the foregoing, Beneficiary's
acceptance of payment of any sum secured hereby after its due date shall not constitute a waiver
by Beneficiary of its right either to require prompt payment when due of all other sums so
secured or to declare default for failure so to pay.
10.8 Action By Beneficiary. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, or consent by the Beneficiary is required or permitted
under this Agreement, such action shall be in writing, and such action may be given,made or
taken by Beneficiary's City Manager or by any person who shall have been designated by
Beneficiary's City Manager, without further approval by the City Council of Beneficiary.
Beneficiary shall use reasonable best efforts to respond to requests for any such approval, notice,
direction, or consent in a timely manner. In any approval, consent, or other determination by
Beneficiary required hereunder, Beneficiary shall act reasonably and in good faith.
10.9 Joint and Several I..,iability. If Trustor consists of more than one person or entity,
each shall be jointly and severally liable for the faithful performance of all of Trusto,r's
obligations under this Performance Deed of Trust.
10.19 Time is of the Essence. Time is of the essence for each provision of this
Performance Deed of Trust.
20
IN WITNESS WHEREOF, Trustor has executed this Performance Deed of Trust as of
the date first written above.
ROTARY PLAZA I.NC
=j
a C_AfiLorpig nonprofit pubhe benefit corporation
By:
Name:
Title:
SIGNA TURES MUST BE NO TA RIZED.
21
Exhibit A
LAND
(Attach legal description.)
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
22
STATE OF CALIFORNIA
COUNTY OF
On before me, Notary Public,
personally appeared who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENAIJY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Name:
Notary Public
2630880.1
23