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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; 2 (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 3 EXHIBIT A Performance Deed of Trust 2629619.1 4 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. 5 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"); 6 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 7 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 8 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 9 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 10 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 11 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