HomeMy WebLinkAboutUkiah Community Center and Food Bank 2010-06-17CONTRACT APPROVAL/AUTORIZATION TO PROCEED
Instruction: When requesting City Manager approval/signature on a contract, submit the attached
checklist confirming proper. review/approvals have been obtained, insurance documents have
been received and funding/expenditure authorizations approved.
To: CITY MANAGER
Submitted By:
Date:
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Apprv'I
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1. Use of City's Professional Services Contract
Template (pre-approved by City Attorney)
S:\City Manager\Risk Management\Contract Template
Use of Vendors Contract
(requires City Attorney review)
Modified City Contract
(requires City Attorney review)
2. Insurance Doemments-Re4~es i & Approved by
Risk Manager y4XG
3. Confirmed Sufficient Funding Available and
expenditure approved. Attach documentation as
necessary.
4. City Council Approved & Date
J
5. Other Documentation/Approvals:
6. For Consultants Only - Scope of Work Reviewed
by City Attorney for Conflict of Interest Disclosure.
Rev 5/07
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12/22/2008 8:37 AM
RESOLUTION NO. 2009-29
RESOLUTION OF THE CITY OF UKIAH COUNCIL APPROVING AN APPLICATION AND
CONTRACT EXECUTION FOR FUNDING FROM THE GENERAL ALLOCATION OF THE
STATE COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM AND
AUTHORIZING THE EXECUTION OF A GRANT AGREEMENT AND ANY AMENDMENTS
THERETO WITH THE STATE OF CALIFORNIA FOR THE PURPOSES OF THIS GRANT.
WHEREAS:
1. A Public Hearing was held pursuant to federal Citizen Participation requirements before
the City Council on July 1, 2009, to receive public comment and consider an eligible application
for a City of Ukiah Public Facilities Project grant
2. The City Council has reviewed and hereby approves an application for up to:
Public Facilities Project: Ukiah Community Center & Food Bank $340,400
Activity Delivery $ 29,600
General Administration $ 30,000
Total $400,000
3. The City has determined that federal Citizen Participation requirements were met during
the development of this application.
4. The City Manager or designee is hereby authorized and directed to act on the City's
behalf in all matters pertaining to this application.
5. If the application is approved, the City Manager or designee is authorized to enter into
and sign the grant agreement and any amendments thereto with the State of California for the
purposes of this grant.
6. The Executive Director or designee of the Community Development Commission of
Mendocino County is hereby authorized and directed to act on ffie City's behalf in all matters
pertaining to this application.
Passed and adopted by the City of Ukiah City Council on July 1, 2009 by the following roll call
vote:
AYES: Councilmember Landis, Crane, and Vice Mayor Baldwin
NOES: None
ABSTAIN: None
ABSENT: Councilmember Rodin and Mayor Baldwin
Benj Thomas, Vice Mayor
ATTEST:
J Anne Currie, City Clerk
PROPERTY REHABILITATION AND LEASE LIMITATION AGREEMENT BETWEEN
CITY OF UKIAH
AND
UKIAH COMMUNITY CENTER AND FOOD BANK
COMMUNITY PROJECT BLOCK GRANT #09-STBG-6417
This Property Rehabilitation and Lease Limitation Agreement, dated as of June 17, 2010 (the " Agreement"), is made and
entered into by and between Ukiah Community Center and Food Bank, a California nonprofit public benefit corporation
with an exemption determination from the Internal Revenue Service under Internal Revenue Code § 501(c)(3) (the
"UCC"), and the City of Ukiah, a general law municipal corporation (the "City").
RECITALS:
A. The UCC is the owner of, the real property improved with a Building which are located at: 888 North State Street,
Ukiah, CA 95482 (the "Property") more fully described in Exhibit 1 to Deed of Trust.
B. The UCC proposes to replace the roof on the Building which is used as a day shelter/resource center and food
bank for the homeless (the "Project"). The Project will consist of rehabilitation of Building's roof, installation of
solar panels, energy efficient insulation, and a rainwater catchment system, as described in the application on file
with the City, and constructed in accordance with the work description in said application ("Construction
Description"). The Project shall be financed by State Department of Housing and Community Development City
Community Project Block Grant #09-STBG-6417 and regulated in accordance with the requirements of Sections
50800 through 50806.5 of the Health and Safety Code and Title 25 of the California Code of Regulations, Sections
7950 through 7976 (the "Program").
C. The Project be subject to a promissory note ("Note"), in the form attached as Exhibit A, and deed of trust, in the
form attached as Exhibit B (collectively, "the Loan documents"), to insure that the Property and the Building
provide benefits to low income beneficiaries of the programs currently provided by the UCC and that the UCC
does not lease any portion of the Building, except to tenants who will provide free housing and related social
services to low income individuals and families. The Note and deed of trust will include the total amount of the
grant budgeted for the construction of the Project, which is in a principal amount not to exceed Three-Hundred
Forty Thousand Four Hundred Dollars ($340,400) (the "Loan").
D. The Property is subject to a first deed of trust in favor of the Savings Bank of Mendocino County in the principal
amount of Two Hundred Eighty Thousand Dollars ($280,000). The deed of trust attached as Ex. B shall be
subordinance to the existing first deed of trust.
E. The Community Development Commission of Mendocino County ("CDC") through the City and CDC's existing
subrecipient agreement will administer the Loan and the Grant on the City's behalf.
NOW, THEREFORE, the parties hereto agree as follows:
General
Recitals. The foregoing recitals are part of this Agreement.
2. Definitions. Unless the context requires otherwise, the definitions set forth in section 7950 of the Regulations shall
govern the meaning to the terms used herein.
3. Work Description. The UCC shall cause the Project and construction of the Project to be performed in an
expeditious and professional manner, in accordance with the work description.
4. Construction Schedule. The UCC shall follow the Construction Schedule, including all pertinent events from
transfer of ownership, if applicable.
Term. This Agreement shall be effective on the date set forth above and shall continue until the Loan is forgiven
or repaid in accordance with the promissory note.
REPRESENTATIONS AND WARRANTIES
6. Representations and Warranties. UCC represents and warrants to the City as follows:
a. Organization. UCC is duly organized, validly existing and in good standing under the laws of the State of
California and has the power and authority to own its property and carry on its business as now being
conducted. The copies of the documents evidencing the organization of UCC delivered to the City are
complete, true, and correct copies of the originals, as amended to the date of this Agreement.
Authority of UCC. UCC has full power and authority to execute and deliver this Agreement, the other Loan
Documents and all documents or instruments executed and delivered, or to be executed and delivered,
pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
C. Authority of Persons Executing Documents. The Loan Documents and all documents or instruments
executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been or, when
executed will be, executed and delivered by persons who are duly authorized to execute and deliver the
same for and on behalf of UCC, and all actions required under UCC's organizational documents and
applicable governing law for the authorization, execution, delivery and performance of this Agreement, the
other Loan Documents and all documents or instruments executed and delivered, or to be executed and
delivered, pursuant to this Agreement, have been duly taken.
d. Valid Binding Agreements. The Loan Documents and all documents or instruments executed and
delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered,
will, when so executed and delivered, constitute legal, valid and binding obligations of UCC enforceable
against it in accordance with their respective terms.
e. No Breach of Law or Agreement. None of the execution or delivery of the Loan Documents or of any
document or instrument executed and delivered, or to be executed or delivered, pursuant to this
Agreement, or the performance of any provision, condition, covenant or other term hereof or thereof, will
conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any
court, board, commission or agency whatsoever binding on UCC or any provision of the organizational
documents of UCC, will conflict with or constitute a breach of or a default under any agreement to which
UCC is a party, or will result in the creation or imposition of any lien upon any assets or property of UCC,
other than liens approved by the City.
Compliance With Laws; Consents and Approvals. The Project will comply with all applicable laws,
ordinances, rules and regulations of federal, state and local governments and agencies having jurisdiction
over either the UCC, the Property or the Project and with all applicable directions, rules and regulations of
the fire marshal, health officer, building inspector and other officers of any such government or agency.
All permits, consents, permissions and licenses required by any federal, state or local government or
agency to which UCC, the Property or the Project is subject, which may be necessary in relation to this
Agreement or the acquisition, Project, construction, or ownership of the Project, at, or prior to, the
commencement of construction have been obtained, and none of such consents, permissions and
licenses are subject to appeal or to conditions which have not been met.
Pending Proceedings. UCC is not in default under any law or regulation or under any order of any court,
board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending
or, to the knowledge of UCC, threatened against or affecting UCC, the Property or the Project, at law or in
equity, before or by any court, board, commission or agency whatsoever which might, if determined
adversely to UCC, materially affect UCC's ability to acquire, construct or develop the Project or repay the
Loan or impair the security to be given to the City pursuant thereto.
Title to Property. UCC has good and marketable title to the Property and, except for the first deed of trust
described in Recital D, there is no mortgage, lien, pledge or other encumbrance of any character
whatsoever other than liens for current real property taxes and assessments not yet due and payable..
Payment of Taxes. All federal, state, county and municipal taxes required to be paid by the UCC or on
account of the Property due and payable as of the date of this Agreement have been paid in full as of such
date.
Availability of Utilities. All utilities necessary for the Project and occupancy of the Project are available at
or within the boundaries of the Property or all steps necessary to assure that such utility services will be
available upon completion of the Project have been taken.
7. Repetition of Representations and Warranties. The representations and warranties made in paragraph 6 hereof
shall also be deemed to be made de novo on the date UCC executes the Note, and shall be true and correct as if
made on that date.
CONSTRUCTION
8. Construction Responsibilities. UCC shall be solely responsible for all aspects of UCC's business and conduct in
connection with the Property and the Project.
9. Delay. UCC shall promptly notify the City in writing of any event causing delay or interruption of construction or
rehabilitation work in excess of ten (10) working days, or the timely completion of construction or rehabilitation for
a period of fifteen (15) working days beyond the scheduled completion date. The notice shall specify the particular
work delayed and the cause and period of each delay.
10. Inspections.
a. Authorized representatives and agents of the City shall be permitted upon reasonable demand to inspect
all work, materials, payrolls, personnel records, materials invoices and other relevant data pertaining to
the Project, and shall have the right of entry and full access to the Property and the Project.
b. The City shall not have any affirmative duty to make any inspection, to make any investigation, or to
supervise or inform UCC or any third party as to any aspect of the construction or rehabilitation of the
Project and shall not incur any liability for failing to do so. Any inspection, investigation or review
undertaken by the City shall be solely to determine whether the UCC is properly discharging its obligations
to the City and may not be relied upon by UCC or any third party. Once having undertaken any such
inspection, investigation or review, the City shall not incur any liability for failing to do so properly or for
failing to complete the same. The City owes no duty of care to UCC or any third party to protect against,
or to inform UCC or any third party of, any negligent, faulty, inadequate or defective design, construction,
or rehabilitation of the Project.
DISBURSEMENT OF FUNDS
11.. Conditions Precedent to Disbursement of Funds. The City shall not be obligated to disburse the proceeds of the
Loan to UCC, unless all of the following conditions precedent are satisfied, or waived in writing by the City at the
time of such action:
a. there exists no Event of Default (as defined in Paragraph 14 hereof) under this Agreement or the Note, or
event, omission or failure of Condition that would constitute such a default or Event of Default after notice or
lapse of time, or both;
b. the Loan proceeds, together with all sums (if any) to be provided by UCC shall at all times be not less than
the amount which the City, in its sole judgment, determines necessary to: (i) pay all sums which may be
payable under the Note during the term of this Agreement; (ii) enable the UCC to perform and satisfy all of
the covenants of the UCC contained in this Agreement; provided that if the City determines at any time that
said funds are not sufficient for said purposes, the UCC may satisfy this condition by depositing the amount
of such deficiency in the account described in paragraph 20 hereof within seven (7) days of the City's written
demand or by providing evidence satisfactory to the City that UCC has obtained a binding commitment from
another entity which will provide funds to UCC in such amounts and upon terms which are satisfactory to the
City;
C. the UCC has authorized, executed and delivered or, if applicable, delivered to the City, the Note and deed
of trust, other documents, instruments, policies and forms of evidence or other materials required under
the terms of this Agreement or any of the other Loan Documents, all in form and substance satisfactory to
the City;
d. the Deed of Trust shall have been recorded in the Office of the Mendocino County Recorder;
12. Methods and Conditions of Payment. The City agrees to provide to or on behalf of the UCC, Loan funds in the
amount, and in accordance with the terms of this Agreement. All amounts paid to UCC hereunder shall be
considered advanced under the Note and secured by the Deed of Trust.
LEASE LIMITATION
13. Lease Limitation Provisions. During the term of this Agreement, UCC shall use the Building exclusively as a day
shelter/resource center, food bank for the homeless, and to provide free housing/social services for individuals
and families whose incomes do not exceed 80% of the median income in Mendocino County. UCC shall not lease
any portion of the Building for a use that is inconsistent with this paragraph 13. It shall file copies of any leases
with the City not less than ten (10) days prior to the effective date of any such lease.
DEFAULTS REMEDIES AND ENFORCEMENT
14. Events of Default. The occurrence of any of the following events shall constitute an "Event of Default" hereunder
following notice to the UCC by the City, specifying (1) the applicable event, (2) the action required to prevent such
event becoming an Event of Default, and (3) a date, which shall be not less than thirty (30) days after the date the
notice is given to UCC, by which such action must be taken:
a. Monetary. (i) UCC's failure to pay when due any sums payable under the Note; (ii) UCC's failure to
deposit any of UCC's funds as and when required under this Agreement; or (iii) UCC's failure to use or
apply Loan funds in the manner specified by, or consistent with the purposes of, this Agreement.
b. Liens; Attachment; Condemnation. The (i) filing of any claim or lien against the Property or the Project, or
any part thereof and the continuance of the claim for lien for twenty (20) days after UCC receives actual
notice thereof without discharge, satisfaction or provision for payment being made to the satisfaction of
the City; (ii) condemnation, seizure or appropriation of, or the occurrence of an uninsured casualty with
respect to, any material portion of the Property or the Project, such materiality to be determined by the City
in its sole and absolute discretion or; (iii) sequestration or attachment of, assignment by UCC for the
benefit of its creditors of, or any levy or execution upon, the Property, the Project, other collateral provided
by UCC under any of the Loan Documents, monies in either of the account established pursuant to
paragraph 21 hereof, or substantial portion of the other assets of UCC, which is not released, expunged or
dismissed prior to the earlier of sixty (60) days after sequestration, attachment or execution or the sale of
the assets affected thereby.
C. Representations and Warranties. (i) Any of UCC's representations or warranties in any of the Loan
Documents or any statements, certificates or schedules furnished by UCC to the City, shall prove to have
been untrue in any material respect when made or deemed to have been made pursuant to paragraph 7
or the UCC shall have concealed any material fact from the City; (ii) any of the UCC's representations or
warranties in any of the Loan Documents or any statement, certificates or schedules furnished by UCC to
the City, other than representations, warranties, statements and certificates as to the financial condition of
UCC or any other person, shall cease to be true and shall remain untrue for fifteen (15) days after notice
of such change to UCC by the City; or (iii) any material adverse change in the financial condition of UCC
or any other person or entity obligated in any manner to the City under the Loan Documents from the
financial condition represented to the City as of the date of this Agreement.
e. Voluntary Bankruptcy; Insolvency; Dissolution. UCC's or any general partner of UCC's (i) filing of a
petition for relief under any state or federal law regarding bankruptcy, reorganization or other relief to
debtors; (ii) filing any pleading in any involuntary proceeding under any state or federal law regarding
bankruptcy, reorganization or other relief to debtors which admits the jurisdiction of the court or the
petition's material allegations regarding the UCC's insolvency; (iii) making a general assignment for the
benefit of creditors; (iv) applying for, or the appointment of, a receiver, trustee, custodian or liquidator of
UCC, any general partner of UCC or any of their respective properties; (v) inability or admission in
writing of its inability to pay its debts as they are due; or (vi) death, if an individual, or the filing by or
against UCC or any general partner of UCC of a petition seeking the liquidation or dissolution of UCC or
any general partner of UCC or the commencement of any other procedure to liquidate or dissolve UCC
or any general partner of UCC.
Involuntary Bankruptcy. UCC's or any general partner of UCC's failure to effect a full dismissal of any
involuntary (i) petition under any state or federal law regarding bankruptcy, reorganization or other relief to
debtors; (ii) proceeding for the appointment of a receiver, trustee or liquidator of UCC or any general
partner of UCC or all or a material part of the assets of the UCC or any general partner of UCC, or (iii)
petition or proceeding under other state or federal law regarding bankruptcy, reorganization or other relief
to debtors that is filed against UCC or any general partner of UCC or in any way restrains or limits UCC or
any general partner of UCC or the City regarding the Loan, the Property or the Project, in any event prior
to the earlier of the entry of any order granting relief sought in the involuntary petition or proceeding, or
sixty (60) days after the date of filing of the petition or beginning of the proceeding.
g. General. UCC's breach of any condition, covenant, warranty, promise or representation contained in this
Agreement not otherwise resulting in an Event of Default hereunder and the continuance of such breach
for a period of thirty (30) days after written notice thereof to UCC.
14. Remedies upon an Event of Default. Upon the happening of an Event of Default the City's obligation to disburse
proceeds of the Loan shall terminate and the City shall have the right to terminate this Agreement. Additionally,
the City may, at its option, call all sums advanced under the Note and all interest accrued thereon which remains
unpaid, immediately due and payable, all without notice of default, presentment or demand for payment, protest or
notice of nonpayment or dishonor, or other notice or demand of any kind or character. Upon the occurrence of an
Event of Default the City may also, in addition to all other rights and remedies available to the City hereunder or
under the Loan Documents or applicable law, at its option, seek an order for specific performance in any court of
competent jurisdiction or may apply to any such court for the appointment of a receiver to take over and operate
the Project in accordance with the terms of the Loan Documents, or for such other relief as may be appropriate.
15. Right to Advance or Post Funds. Where disputes have arisen which, in the good faith opinion of the City, may
endanger fulfillment of any condition precedent or covenant herein or result in lien claims against the Property or
the Project, the City may agree to advance funds for the account of UCC without prejudice to UCC's rights, if any,
to recover said funds from the party to whom paid. Such agreement or agreements may take the form, which the
City, in its discretion, deems proper. All sums paid or agreed to be paid pursuant to such undertaking shall be for
the account of UCC, and UCC agrees to reimburse the City for any such payments made upon demand therefore
with interest at the rate of ten (10%) percent per annum, or such lower rate of interest as may be approved by the
City, from the date of payment until date of reimbursement. Nothing in this or any other section of this Agreement
shall be construed to require the City to advance monies over and above the amount of the Loan, though the City
may, at its option advance such amounts.
16. Right of Contest. UCC shall have the right to contest in good faith any claim, demand, levy or assessment the
assertion of which would constitute an Event of Default hereunder. Any such contest shall be prosecuted diligently
and in a manner not prejudicial to the City or the rights of the City hereunder. Upon demand by the City, UCC
shall make suitable provision by deposit of funds with the City or by bond or by title insurance or other assurance
satisfactory to the City for the possibility that the contest will be unsuccessful. Such provision shall be made five
(5) days after demand therefore, and, if made by deposit of funds with the City, the amount so deposited shall be
disbursed in accordance with the resolution of the contest either to UCC or the adverse claimant.
17. Rights Cumulative. No Waiver. All the City's rights and remedies provided in the Loan Documents, granted by law
or otherwise, are cumulative and may be exercised by the City at any time. No waiver shall be implied from any
failure of the City to take, or any delay by the City in taking, action concerning any Event of Default or failure of
condition under the Loan Documents, or from any previous waiver of any similar or unrelated Event of Default or
failure of condition. Any waiver or approval under any of the Loan Documents must be in writing and shall be
limited to its specific terms.
18. Attorneys' Fees; Enforcement. If any attorney, including the California Attorney General, is engaged by the City to
enforce, construe or defend any provision of any of the Loan Documents, or as a consequence of any Event of
Default hereunder or default under any other Loan Document, with or without the filing of any legal action or
proceeding, UCC shall pay to the City, immediately upon demand, the amount of all attorneys' fees and costs
incurred by the City in connection therewith, together with interest thereon from the date of such demand at the
rate of ten percent (10%) per annum; provided, however, that in any litigation between the City and UCC arising
under this Agreement, the prevailing party shall be entitled to recover as additional costs of suits the attorneys'
fees it incurred in the litigation.
INDEMNIFICATION AND INSURANCE
19. Indemnification and Waiver.
a. Indemnification. UCC agrees to indemnify the City and its agents, employees and officers against, and
holds the City and its agents, employees and officers harmless from, any losses, damages, liabilities,
claims, actions, judgments, court costs and legal or other expenses (including attorneys' fees), of every
name, kind and description, which the City may incur as a direct or indirect consequence of: (i) the
making of the Loan to the UCC, except for violations of banking laws or regulations by the City; (ii) UCC's
failure to perform any obligations as and when required by this Agreement or any of the Loan Documents;
(iii) any failure at any time of any of UCC's representations or warranties to be true and correct; (iv) any
act or omission by UCC, any contractor, subcontractor, material supplier, engineer, architect or other
person or entity with respect to the Property or Project; or (v) the presence of hazardous substances (as
defined in the Standard Agreement) at the Project or on the Property. UCC shall pay immediately upon
the City's demand any amounts owing under this indemnity together with interest from the date the
indebtedness arises until paid at the rate of ten percent (10%) per annum. The duty of the UCC to
indemnify and hold harmless includes the duties to defend as set forth in section 2778 of the Civil Code.
UCC shall indemnify and hold harmless the City and its agents, officers and employees as set forth herein
regardless of the existence or degree of fault or negligence whether active or passive, primary or
secondary on the part of the City or the UCC or their respective agents, officers, employees, contractors
or subcontractors; provided, however, that UCC's duty to indemnify and hold harmless hereunder shall not
extend to liability arising from gross negligence or willful misconduct of the City. UCC's duty to indemnify
the City shall survive the term of this Agreement, the release and cancellation of the Note and the
reconveyance or partial reconveyance of the Deed of Trust.
b. Waiver and Release. The UCC waives any and all rights to any types of express or implied indemnity
against the City or its agents, officers or employees.
C. Waiver. The UCC expressly waives the protections of section 1542 of the Civil Code in relation to
subparagraphs a. and b. above. Said section 1542 provides as follows:
d. A general release does not extend to claims which the creditor does not know or suspect to exist in
his favor at the time of executing the release, which if known by him must have materially affected
his settlement with the debtor.
e. UCC shall comply with the insurance requirements in Exhibit C.
MISCELLANEOUS
20. Further Assurances. At the City's request and at UCC's expense, UCC shall execute, acknowledge and deliver
any other instrument and perform any other act necessary, desirable or proper (as determined by the City) to carry
out the purpose of the Loan Documents or to perfect and preserve any liens created by the Loan Documents.
21. Notice. Except for any notice required under applicable law to be given in another manner, any notices, demands
or communications between the parties hereto shall be sufficiently given if, and shall not be deemed given unless,
dispatched by certified mail, postage prepaid, return receipt requested or delivered by express delivery service
with delivery receipt, to the address of the respective party as indicated herein, or to such other address as the
respective party may have designated by written notice given to the other party in the manner provided herein.
Such written notices, demands and communications shall be effective on the date shown on the delivery receipt as
the date delivered, the date on which delivery was refused, or the date on which delivery was attempted.
22. Displacement and Relocation. If the acquisition or rehabilitation of the Project will result in the temporary or
permanent displacement of tenants, the UCC shall comply with all requirements of California relocation law,
including the preparation and implementation of a tenant relocation plan, if applicable. The relocation plan shall be
subject to the approval of the City. UCC shall be solely responsible for all costs of relocation benefits and
assistance.
23. Amendments and Additional Agreements. This Agreement shall not be altered or amended except in writing
executed by all parties. The UCC agrees that any other agreements entered into by the UCC relating to the
performance of this Agreement shall be subject to the written approval of the City.
24. Books and Records. UCC shall maintain complete books of accounts and other records for the Project and for the
use of the Loan proceeds and operating income; including, but not limited to, records of preliminary notices, lien
releases, invoices and receipts, and certificates of insurance pertaining to the contractor and each subcontractor;
and the same shall be available for inspection and copying by the City for the period of the continued use
requirement upon reasonable notice to UCC.
25. No Third Parties Benefited. No person other than the City and UCC, and their permitted successors and assigns
or, in the case of the Regulatory Agreement, the tenants of the Project to the extent specified therein, shall have
any right of action under any of the Loan Documents.
26. Authority to File Notices. UCC irrevocably appoints and authorizes the City, as UCC's attorney-in-fact, which
agency is coupled with an interest, to execute and record, on either of them, in the City's or UCC's name, any
notices, instruments or documents that the City deems appropriate to protect the City's interest under any of the
Loan Documents.
27. Actions. The City may commence, appear in or defend any action or proceeding purporting to affect the Property,
Project, Loan Documents or the rights, duties or liabilities of UCC or the City under the Loan Documents. In
exercising this right, the City may incur or incur and pay reasonable costs and expenses including, without limit,
attorney's fees and court costs and UCC agrees to pay all such expenses so incurred and reimburse the City for
any expenses so paid.
28. Relationship of Parties. The relationship of UCC and the City under the Loan Documents is, and shall at all times
remain, solely that of UCC and lender. The City neither undertakes nor assumes any responsibility or duty to UCC
or to any third party with respect to the Property or the Project, except as expressly provided in the Loan
Documents.
29. Assignment of Loan Documents. UCC shall not assign UCC's interest, of any portion thereof, under any of the
Loan Documents, or in any monies due or to become due there under, without the City's prior written consent.
Any such assignment made without the City's consent shall be void. UCC recognizes that this is not an ordinary
commercial loan and that the City would not make the Loan except in reliance on UCC's expertise and reputation,
the City's knowledge of UCC, and the City's understanding that this Agreement is more in the nature of an
agreement involving personal services than a standard loan where the City would rely on security which already
exists. In this instance, the work funded has not been performed at the time of Loan approval and the City is
relying on UCC's expertise and prior experience to rehabilitate the Project in accordance with the terms of the
Loan Documents.
30. Restrictions on Transfer of Property, Proiect and Interest in UCC. UCC shall not assign, sell, transfer or convey
any interest in the UCC, the Property, or the Project, including, without limitation, any general partnership interest
in the UCC, without the City's prior written consent. UCC shall promptly notify the City of such transfers and shall
provide the City with any documents respecting such transfer as the City may reasonably request. Provided
however that UCC, if UCC is a limited partnership, may sell, assign, transfer or convey limited partnership
interests without the prior approval of the City.
31. Signs. During the construction period, the City may require UCC to place on the Property signs stating that the
City is providing financing for the Project.
32. City's Agents. The City may designate an agent or independent contractor to exercise any of the City's rights
under the Loan Documents. Any reference to the City in any of the Loan Documents shall include the City's
agents, employees or independent contractors.
33. Severability. If any provision of the Loan Documents shall be determined by a court of competent jurisdiction to be
invalid, illegal or unenforceable, that portion shall be deemed severed from the Loan Documents and the
remaining parts shall remain in full force as though the invalid, illegal, or unenforceable portion had never been
part of the Loan Documents.
34. Heirs. Successors and Assigns. The terms of the Loan Documents shall be binding upon and inure to the benefit
of the heirs, successors and assigns of the parties; provided however, that this paragraph does not waive the
provisions of paragraph 39.
25. Time. Time is of the essence of each term of the Loan Documents.
26. Headings. All headings appearing in any of the Loan Documents are for convenience only and shall be
disregarded in construing the Loan Documents.
27. Governing Law. The Loan Documents shall be governed by, and construed in accordance with, the laws of the
State of California, except to the extent preempted by federal laws. UCC and all persons and entities in any
manner obligated to the City under the Loan Documents consent to the jurisdiction of any federal or state court
within the State of California having proper venue and also consent to service of process by any means authorized
by California or federal law.
28. Integration; Interpretation. The Loan Documents contain or expressly incorporate by reference the entire
agreement of the parties with respect to the matters contemplated herein and supersede all prior negotiations. No
Loan Document shall be modified except by written instrument executed by all the parties thereto. Any reference
in any of the Loan Documents to the Property or Project shall include all or any parts of the Property or Project.
Any reference to the Loan Documents in any of the Loan Documents includes any amendments, renewals or
extensions approved by the City. Any reference in this Agreement to the Loan Documents shall include all or any
of the provisions of this Agreement and the Loan Documents unless otherwise specified.
29. Joint and Several Liability. The liability of all persons and entities that are in any manner obligated under any of
the Loan Documents shall be joint and several.
30. Incorporation. The following Exhibits, all attached hereto, are hereby incorporated into and made a part of this
Agreement.
Exhibit A Promissory Note
Exhibit B Deed of Trust
IN WITNESS HEREOF, the parties agree to and execute this Agreement as of the date first above stated.
CITY
City of Ukiah
300 Seminary Ave.
Ukiah, CA 95482
UCC
Ukiah Community Center
888 N. State Street
Ukiah, CA. 95482
By: ~~AA, eZA-~
J Chambers, City Manager
Attest:
BY
(L (0- - yy (L JNK2-a'
oAnne Currie, City Clerk
EXHIBIT A TO THE AGREEMENT
PROMISSORY NOTE
(Ukiah Community Center- Borrower)
$340,400
PROMISSORY NOTE
.Ukiah, California
June 17, 2010
FOR VALUE RECEIVED, Ukiah Community Center, a California public benefit corporation (the "Borrower"), promises to pay to the
City of Ukiah, a general law municipal corporation (the "Lender"), or order, the principal sum of Three-Hundred Forty Thousand Four Hundred
Dollars ($340,400) "the Loan," plus interest on the principal sum pursuant to the paragraph below headed: "INTEREST."
BORROWER'S OBLIGATION. This Note evidences the Borrower's obligation to pay the Lender the principal amount of Three-Hundred
Forty Thousand Four Hundred Dollars ($340,400).
INTEREST. The Note shall bear interest at a rate ("Rate") equal to 0% .
DEED OF TRUST. The Note shall be secured by a deed of trust on the Borrower's Property as described in the Exhibit to the Deed of Trust.
TERM AND REPAYMENT REQUIREMENTS. Borrower shall make no payment of principal or interest for a period of 5 years,
commencing with the expiration of the State of California/City of Ukiah Standard Agreement #09-STBG-6417 on December 31, 2012, and
ending on December 31, 2017. If Borrower fully complies with and is not in default of the Project Agreement throughout the term of the
Project Agreement, the Loan and the accrued interest shall be deemed paid in full, and Lender shall cause a deed of reconveyance to be
delivered to Borrower with respect to the trust deed securing the Note.
TERMS OF PAYMENT
All payments due under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the
payment of public and private debts.
All payments on this Note shall be paid to Lender at Ukiah Civic Center, 300 Seminary Avenue, Ukiah, CA. 95482 or to such other place
as the Lender may from time to time designate in writing.
Notwithstanding any other provision of this Note, or any instrument securing the obligations of the Borrower under this Note, if, for any
reason whatsoever, the payment of any sums by the Borrower pursuant to the terms of this Note would result in the payment of interest which
would exceed the amount that the Lender may legally charge under the laws of the State of California, then the amount by which payments
exceeds the lawful interest rate shall automatically be deducted from the principal balance owing on this Note, so that in no event shall the
Borrower be obligated under the terms of this Note to pay any interest which would exceed the lawful rate.
DEFAULT. Each of the following shall constitute an event of default ("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or the
Project Agreement or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained in
any other agreement between Lender and Borrower.
False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note
or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of
any proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan.
However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding
and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.
Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the same
provision of this Note within the preceding twelve (12) months, it may be cured (and no event of default will have occurred) if Borrower, after
receiving written notice from Lender demanding cure of such default: (1) cures the default within fifteen (15) days; or (2) if the cure requires
more than fifteen (15) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and
thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note and all accrued unpaid interest
immediately due, and then Borrower will pay that amount.
MISCELLANEOUS PROVISIONS
(a) All notices to the Lender or the Borrower shall be given in the manner and at the addresses set forth below, or to such addresses as the
Lender and the Borrower may designate. Notice shall be given by fax, with return receipt requested, personal delivery, overnight courier or
registered mail with return receipt request and shall be deemed given, when received. Notices shall be addressed or delivered as follows:
Lender Borrower
City of Ukiah Ukiah Community Center
Attention: City Manager Attention: Executive Director
300 Seminary Ave. 888 N. State Street
\ Ukiah, CA. 95482 Ukiah, CA. 95482
(b) The Borrower promises to pay all costs and expenses including reasonable attorney's fees, incurred by the Lender in the enforcement of the
provisions of this Note, regardless of whether suit is filed to seek enforcement.
(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
(d) This Note shall be governed by and construed in accordance with the laws of the State of California, and may be enforced in the California
state courts, the parties stipulating to jurisdiction and venue in Mendocino County.
(e) The times for the performance of any obligations under this Note shall be strictly construed, time being of the essence.
(f) This document, together with the Property Agreement, contains the entire agreement between the parties as to the Loan. It may not be
modified except upon written consent of the parties.
(g) The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and
shall inure to the benefit of Lender and its successors and assigns.
(h) Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower, to the extent allowed by
law, waives any applicable statute of limitations, presentment, demand for payment, and notice of dishonor.
10
Wherefore, the Borrower has executed this Note on the date first written above
UKIAH COMMUNITY CENTER
By
Its:
II
EXHIBIT B TO THE AGREEMENT
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Attn: City Manager
No fee for recording pursuant to
Government Code Section 27383
DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(Ukiah Community Center)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS AND SECURITY AGREEMENT ("Deed
of Trust") is made as of June 17, 2010, by and among Ukiah Community Center, a California public benefit
corporation ("Trustor"), Redwood Title Company, a California corporation ("Trustee"), and the City of Ukiah
("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the
trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers,
conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of
Beneficiary, under and subject to the terms and conditions hereinafter set forth, Trustor's fee interest in the
property located in the City of Ukiah, County of Mendocino, State of California, that is described in the attached
Exhibit 1, incorporated herein by this reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which Trustor now has
or may hereafter acquire in the Property and the rents;
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means
of access thereto, including (without limiting the generality of the foregoing) all tenements, hereditaments and
appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements of every kind and description now or
hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property;
TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and
intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any
land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all
sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such
property, including the Property, both in law and in equity, including, but not limited to, all deposits made with
or other security given by Trustor to utility companies, the proceeds from any or all of such property, including
12
the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which
Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation,
any awards resulting from a change of grade of streets and awards for severance damages to the extent
Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein; and
TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures now or
hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the
Property which are necessary to the complete and comfortable use and occupancy of such building or buildings
for the purposes for which they were or are to be erected, including all other goods and chattels and personal
property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the
one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefor,
whether or not the same are, or shall be attached to said building or buildings in any manner.
TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, work in
process and other personal property to be incorporated into the Property; all goods, materials, supplies, fixtures,
equipment, machinery, furniture and furnishings, signs and other personal property now or hereafter
appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in
connection with the Property; all rents, issues and profits, and all inventory, accounts, accounts receivable,
contract rights, general intangibles, chattel paper, instruments, documents, notes drafts, letters of credit,
insurance policies, insurance and condemnation awards and proceeds, trade names, trademarks and service
marks arising from or related to the Property and any business conducted thereon by Trustor; all replacements,
additions, accessions and proceeds; and all books, records and files relating to any of the foregoing.
All of the foregoing, together with the Property, is herein referred to as the "Security." To have and to
hold the Security together with acquittances to the Trustee, its successors and assigns forever.
FOR THE PURPOSE OF SECURING:
Payment of just indebtedness of Trustor to Beneficiary as set forth in the Note (defined in Article 1
below) until paid or cancelled. Said principal and other payments shall be due and payable as provided in the
Note. Said Note and all its terms are incorporated herein by reference, and this conveyance shall secure any and
all extensions thereof, however evidenced; and
Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and
provisions of this Deed of Trust following a breach of Trustor's obligation to advance said sums and the
expiration of any applicable cure period, with interest thereon as provided herein; and
Performance of every obligation, covenant or agreement of Trustor contained herein and in the Loan
Documents (defined in Section 1.2 below).
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND
AGREES:
DEFINITIONS
In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall have the
following meanings in this Deed of Trust:
13
The term "Project Agreement" means that certain PROPERTY REHABILITATION AND
LEASE LIMITATION AGREEMENT BETWEEN the Trustor and the Beneficiary, dated June 17, 2010,
providing for the Beneficiary to loan to the Trustor Three-Hundred Forty Thousand Four Hundred Dollars
($340,400) for the Project as defined in the Project Agreement.
The term "Loan Documents" means this Deed of Trust, the Note, and the Project Agreement.
The term "Note" means the promissory note in the principal amount of Three-Hundred Forty
Thousand Four Hundred Dollars ($340,400), dated June 17, 2010. (A copy of the Note is on file with the
Beneficiary and terms and provisions of the Note are incorporated herein by reference.).
The term "Principal" means the amount required to be paid under the Note.
MAINTENANCE AND MODIFICATION OF THE PROPERTY AND
SECURITY
Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment of the sum owed under the Note, the Trustor
will, at the Trustor's own expense, maintain, preserve and keep the Security or cause the Security to be
maintained and preserved in good condition. The Trustor will from time to time make or cause to be made all
repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no
responsibility in any of these matters or for the making of improvements or additions to the Security.
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor
done and for material and services furnished in connection with the Security, diligently to file or procure the
filing of a valid notice of cessation upon the event of a cessation of labor on the work or construction on the
Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the
assertion of claims of lien against the Security of any part thereof. Trustor irrevocably appoints, designates and
authorizes Beneficiary as its agent (said agency being coupled with an interest) with the authority, but without
any obligation, to file for record any notices of completion or cessation of labor or any other notice that
Beneficiary deems necessary or desirable to protect its interest in and to the Security or the Loan Documents;
provided, however, that Beneficiary shall exercise its rights as agent of Trustor only in the event that Trustor
shall fail to take, or shall fail to diligently continue to take, those actions as hereinbefore provided.
Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or claims as
Beneficiary shall specify upon laborers, materialmen, subcontractors or other persons who have furnished or
claim to have furnished labor, services or materials in connection with the Security. Nothing herein contained
shall require Trustor to pay any claims for labor, materials or services which Trustor in good faith disputes and
is diligently contesting provided that Trustor shall, within sixty (60) days after the filing of any claim of lien,
record in the Office of the Recorder of Mendocino County, a surety bond in an amount 1 and 1/2 times the
amount of such claim item to protect against a claim of lien.
Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in the nature of
easements with respect to any property or rights included in the Security except those required or desirable for
installation and maintenance of public utilities including, without limitation, water, gas, electricity, sewer,
telephone and telegraph, or those required by law and as approved, in writing, by Beneficiary.
14
Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby absolutely and
unconditionally assigns and transfers to Beneficiary all the rents and revenues of the Property including those
now due, past due, or to become due by virtue of any lease or other agreement for the occupancy or use of all or
any part of the Property, regardless of to whom the rents and revenues of the Property are payable. Trustor
hereby authorizes Beneficiary or Beneficiary's agents to collect the aforesaid rents and revenues and hereby
directs each tenant of the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however,
that prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant or
agreement of Trustor in the Loan Documents, Trustor shall collect and receive all rents and revenues of the
Property as trustee for the benefit of Beneficiary and Trustor to apply the rents and revenues so collected to the
sums secured by this Deed of Trust with the balance, so long as no such breach has occurred, to the account of
Trustor, it being intended by Trustor and Beneficiary that this assignment of rents constitutes an absolute
assignment and not an assignment for additional security only. Upon delivery of written notice by Beneficiary
to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan Documents, and without
the necessity of Beneficiary entering upon and taking and maintaining full control of the Property in person, by
agent or by a court-appointed receiver, Beneficiary shall immediately be entitled to possession of all rents and
revenues of the Property as specified in this Section as the same becomes due and payable, including but not
limited to rents then due and unpaid, and all such rents shall immediately upon delivery of such notice be held
by Trustor as trustee for the benefit of Beneficiary only; provided, however, that the written notice by
Beneficiary to Trustor of the breach by Trustor shall contain a statement that Beneficiary exercises its rights to
such rents. Trustor agrees that commencing upon delivery of such written notice of Trustor's breach by
Beneficiary to Trustor, each tenant of the Property shall make such rents payable to and pay such rents to
Beneficiary or Beneficiary's agents on Beneficiary's written demand to each tenant therefor, delivered to each
tenant personally, by mail or by delivering such demand to each rental unit, without any liability on the part of
said tenant to inquire further as to the existence of a default by Trustor.
Trustor hereby covenants that Trustor has not executed any prior assignment of said rents, that Trustor
has not performed, and will not perform, any acts or has not executed and will not execute, any instrument
which would prevent Beneficiary from exercising its rights under this Section, and that at the time of execution
of this Deed of Trust, there has been no anticipation or prepayment of any of the rents of the Property for more
than two (2) months prior to the due dates of such rents. Trustor covenants that Trustor will not hereafter
collect or accept payment of any rents of the Property more than two (2) months prior to the due dates of such
rents. Trustor further covenant that Trustor will execute and deliver to Beneficiary such further assignments of
rents and revenues of the Property as Beneficiary may from time to time request.
Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents, Beneficiary may
in person, by agent or by a court-appointed receiver, regardless of the adequacy of Beneficiary's security, enter
upon and take and maintain full control of the Property in order to perform all acts necessary and appropriate for
the operation and maintenance thereof including, but not limited to, the execution, cancellation or modification
of leases, the collection of all rents and revenues of the Property, the making of repairs to the Property and the
execution or termination of contracts providing for the management or maintenance of the Property, all on such
terms as are deemed best to protect the security of this Deed of Trust. In the event Beneficiary elects to seek the
appointment of a receiver for the Property upon Trustor's breach of any covenant or agreement of Trustor in this
Deed of Trust, Trustor hereby expressly consents to the appointment of such receiver. Beneficiary or the
receiver shall be entitled to receive a reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written notice by Beneficiary to Trustor of the
breach by Trustor of any covenant or agreement of Trustor in the Loan Documents shall be applied first to the
15
costs, if any, of taking control of and managing the Property and collecting the rents, including, but not limited
to, attorney's fees, receiver's fees, premiums on receiver's bonds, costs of repairs to the Property, premiums on
insurance policies, taxes, assessments and other charges on the Property, and the costs of discharging any
obligation or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this Deed
of Trust. Beneficiary or the receiver shall have access to the books and records used in the operation and
maintenance of the Property and shall be liable to account only for those rents actually received. Beneficiary
shall not be liable to Trustor, anyone claiming under or through Trustor or anyone having an interest in the
Property by reason of anything done or left undone by Beneficiary under this Section.
If the rents of the Property are not sufficient to meet the costs, if any, of taking control of and managing
the Property and collecting the rents, any funds expended by Beneficiary for such purposes shall become
indebtedness of Trustor to Beneficiary secured by this Deed of Trust pursuant to Section 3.3 hereof. Unless
Beneficiary and Trustor agree in writing to other terms of payment, such amounts shall be payable upon notice
from Beneficiary to Trustor requesting payment thereof and shall bear interest from the date of disbursement at
the rate stated in Section 3.3.
Any entering upon and taking and maintaining of control of the Property by Beneficiary or the receiver
and any application of rents as provided herein shall not cure or waive any default hereunder or invalidate any
other right or remedy of Beneficiary under applicable law or provided herein. This assignment of rents of the
Property shall terminate at such time as this Deed of Trust ceases to secure indebtedness held by Beneficiary.
TAXES AND INSURANCE; ADVANCES
Taxes, Other Governmental Charges and Utility Charges.
Trustor shall pay, or cause to be paid, at least five (5) days prior to the date of delinquency, all taxes,
assessments, charges and levies imposed by any public authority or utility company which are or may become a
lien affecting the Security or any part thereof, provided, however, that Trustor shall not be required to pay and
discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and
actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to
pay any liabilities contested pursuant to this Section. With respect to taxes, special assessments or other similar
governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any
part of the Security; provided, however, if such taxes, assessments or charges may be paid in installments,
Trustor may pay in such installments. Except as provided in clause (b) of the first sentence of this paragraph,
the provisions of this Section shall not be construed to require that Trustor maintain a reserve account, escrow
account, impound account or other similar account for the payment of future taxes, assessments, charges and
levies.
In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by
Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified
the Trustor of such failure to pay and the Trustor fails to fully pay such items within thirty (30) business days
after receipt of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon
from the date of such advance at the maximum rate permitted by law, shall become an additional obligation of
Trustor to the Beneficiary and shall be secured hereby, and Trustor agrees to pay all such amounts.
16
Provisions Respecting Insurance.
Trustor agrees to provide insurance conforming in all respects to that required under the Loan
Documents during the course of construction and following completion, and at all times until all amounts
secured by this Deed of Trust have been paid and all other obligations secured hereunder fulfilled, and this
Deed of Trust reconveyed.
All such insurance policies and coverages shall be maintained at Trustor's sole cost and expense.
Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect,
shall be delivered to the Beneficiary upon demand therefor at any time prior to the Beneficiary's receipt of the
entire Principal and all amounts secured by this Deed of Trust.
Advances.
In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust
or shall fail to keep the Security in accordance with the Loan Documents, the Beneficiary, after at least thirty
(30) days prior notice to Trustor, may (but shall be under no obligation to) take out the required policies of
insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and
provide for payment thereof, and all amounts so advanced therefor by the Beneficiary shall become an
additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be
secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid,
shall bear interest from the date of the advance at the lesser of Three Percent (3%) per annum or the maximum
rate permitted by law.
DAMAGE, DESTRUCTION OR CONDEMNATION
Awards and Damages.
All judgments, awards of damages, settlements and compensation made in connection with or in lieu of
(1) taking of all or any part of or any interest in the Property by or under assertion of the power of eminent
domain, (2) any damage to or destruction of the Property or in any part thereof by insured casualty, and (3) any
other injury or damage to all or any part of the Property ("Funds") are hereby assigned to and shall be paid to the
Beneficiary by a check made payable to the Beneficiary. Subject to the rights of any senior lenders, if any, such
Funds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is
economically feasible and the security of this Deed of Trust is not thereby impaired, as determined in the
Beneficiary's reasonable discretion. If such restoration or repair is not economically feasible or if the security of
this Deed of Trust would be impaired, the insurance proceeds will be used to repay any amounts due under this
Deed of Trust with the excess, if any, paid to Trustor. The Beneficiary shall be entitled to settle and adjust all
claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds
of such insurance the amount of all expenses incurred by it in connection with any such settlement or
adjustment. All or any part of the amounts so collected and recovered by the Beneficiary may be released to
Trustor upon such conditions as the Beneficiary may impose for its disposition. Application of all or any part of
the Funds collected and received by the Beneficiary or the release thereof shall not cure or waive any default
under this Deed of Trust. The rights of the Beneficiary under this Section are subject to the rights of any senior
mortgage lender.
17
AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES;
PAYMENT OF PRINCIPAL AND INTEREST
Other Agreements Affecting Property.
The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding
upon it under the Loan Documents and any other agreement of any nature whatsoever now or hereafter
involving or affecting the Security or any part thereof.
Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default (as defined below) hereunder, and if the Beneficiary should employ
attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or
observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that
it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other
reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be
added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such
expenses are incurred at the lesser of Three Percent (3%) per annum or the maximum rate permitted by law.
Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Note in
the amounts and by the times set out therein.
Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of Trust shall be
deemed to be fixtures and part of the real property and this Deed of Trust shall constitute a fixtures filing under
the California Commercial Code. As to any personal property not deemed or permitted to be fixtures, this Deed
of Trust shall constitute a security agreement under the California Commercial Code.
Financing Statement.
The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the
appropriate statutes, and any other documents or instruments as are required to convey to the Beneficiary a valid
perfected security interest in the Security. The Trustor agrees to perform all acts which the Beneficiary may
reasonably request so as to enable the Beneficiary to maintain such valid perfected security interest in the
Security in order to secure the payment of the Note in accordance with their terms. The Beneficiary is
authorized to file a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate from
time to time in order to protect the security interest established pursuant to this instrument.
Operation of the Security.
The Trustor shall operate the Security (and, in case of a transfer of a portion of the Security subject to
this Deed of Trust, the transferee shall operate such portion of the Security) in full compliance with the Loan
Documents.
18
Inspection of the Security.
At any and all reasonable times upon seventy-two (72) hours' notice, the Beneficiary and its duly
authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without
payment of charges or fees, to inspect the Security.
Nondiscrimination.
The Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all
persons claiming under or through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, age, sex, sexual orientation, marital status,
national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Security. The foregoing covenants shall run with the land.
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the
Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial
hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and
ground water conditions. Trustor shall not use, generate, manufacture, store or dispose of on, under, or about
the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous
wastes, toxic substances or related materials, including without limitation, any substances defined as or included
in the definition of "hazardous substances," hazardous wastes," "hazardous materials," or "toxic substances"
under any applicable federal or state laws or regulations (collectively referred to hereinafter as "Hazardous
Materials") except such of the foregoing as may be customarily kept and used in and about multifamily
residential property.
Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of (i) any
and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or
threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or
regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened
by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above
hereinafter referred to a "Hazardous Materials Claims"); and (iii) Trustor's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any
part thereof to be classified as "border-zone property" under the provision of California Health and Safety Code,
Sections 25220 et seq. or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials
Law.
Beneficiary shall have the right to join and participate in, as a party if it so elects, any legal proceedings
or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees
in connection therewith paid by Trustor. Trustor shall indemnify and hold harmless Beneficiary and its
boardmembers, supervisors, directors, officers, employees, agents, successors and assigns from and against any
loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation,
storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about
the Property including without limitation: (a) all foreseeable consequential damages; (b) the costs of any
required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation
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of any closure, remedial or other required plans; and (c) all reasonable costs and expenses incurred by
Beneficiary in connection with clauses (a) and (b), including but not limited to reasonable attorneys' fees.
Without Beneficiary's prior written consent, which shall not be unreasonably withheld, Trustor shall not
take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property,
nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous
Material Claims, which remedial action, settlement, consent decree or compromise might, in Beneficiary's
reasonable judgement, impair the value of the Beneficiary's security hereunder; provided, however, that
Beneficiary's prior consent shall not be necessary in the event that the presence of Hazardous Materials on,
under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or
is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain
Beneficiary's consent before taking such action, provided that in such event Trustor shall notify Beneficiary as
soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is
required hereunder, if either (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii)
Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action;
(iii) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to
such remedial action which would result in less impairment of Beneficiary's security hereunder; or (iv) the
action has been agreed to by Beneficiary.
The Trustor hereby acknowledges and agrees that (i) this Article is intended as the Beneficiary's written
request for information (and the Trustor's response) concerning the environmental condition of the Property as
required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this
Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any
such representation and warranty) with respect to the environmental condition of the property is intended by the
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code of Civil
Procedure Section 736.
In the event that any portion of the Property is determined to be "environmentally impaired" (as that term
is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an "affected parcel" (as that term
is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any
way affecting the Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary
may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien
on such environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and
remedies of an unsecured creditor, including reduction of its claim against the Trustor to judgment, and (b) any
other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an
unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor shall be deemed to
have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the
meaning of California Code of Civil Procedure Section 726.5(4)(1), if the release or threatened release of
hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of
any portion of the Property and the Trustor knew or should have known of the activity by such lessee, occupant,
or user which caused or contributed to the release or threatened release. All costs and expenses, including (but
not limited to) attorneys' fees, incurred by the Beneficiary in connection with any action commenced under this
paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine
the degree to which the Property is environmentally impaired, plus interest thereon at the rate specified in the
Note until paid, shall be added to the indebtedness secured by this Deed of Trust and shall be due and payable
to the Beneficiary upon its demand made at any time following the conclusion of such action.
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EVENTS OF DEFAULT AND REMEDIES
Events of Default.
The following shall constitute Events of Default following the expiration of any applicable notice and
cure periods: (1) failure to make any payment to be paid by Trustor under the Loan Documents; (2) failure to
observe or perform any of Trustor's other covenants, agreements or obligations under the Loan Documents,
including, without limitation, the provisions concerning discrimination; or (3) failure to make any payment or
perform any of Trustor's other covenants, agreements, or obligations under any other debt instruments or
regulatory agreement secured by the Property, which default shall not be cured within the times and in the
manner provided therein.
Acceleration of Maturity.
If an Event of Default shall have occurred and be continuing, then at the option of the Beneficiary, the
amount of any payment related to the Event of Default and the unpaid Principal of the Note shall immediately
become due and payable, upon written notice by the Beneficiary to the Trustor (or automatically where so
specified in the Loan Documents), and no omission on the part of the Beneficiary to exercise such option when
entitled to do so shall be construed as a waiver of such right.
The Beneficiary's Right to Enter and Take Possession.
If an Event of Default shall have occurred and be continuing, the Beneficiary may:
Either in person or by agent, with or without bringing any action or proceeding, or by a
receiver appointed by a court, and without regard to the adequacy of its security, enter upon the Security and
take possession thereof (or any part thereof) and of any of the Security, in its own name or in the name of
Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the
Property, or part thereof or interest therein, increase the income therefrom or protect the security thereof. The
entering upon and taking possession of the Security shall not cure or waive any Event of Default or Notice of
Default (as defined below) hereunder or invalidate any act done in response to such Default or pursuant to such
Notice of Default and, notwithstanding the continuance in possession of the Security, Beneficiary shall be
entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of
Default, including the right to exercise the power of sale;
Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or
specifically enforce any of the covenants hereof,
Deliver to Trustee a written declaration of default and demand for sale, and a written
notice of default and election to cause Trustor's interest in the Security to be sold ("Notice of Default and
Election to Sell"), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official
Records of Mendocino County; or
Exercise all other rights and remedies provided herein, in the instruments by which the
Trustor acquires title to any Security, or in any other document or agreement now or hereafter evidencing,
creating or securing all or any portion of the obligations secured hereby, or provided by law.
Foreclosure By Power of Sale.
Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the
Beneficiary shall give notice to the Trustee (the "Notice of Sale") and shall deposit with Trustee this Deed of
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Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the unpaid
principal amount of the Note is immediately due and payable), and such receipts and evidence of any
expenditures made that are additionally secured hereby as Trustee may require.
Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded,
published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by
this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required
by law and after recordation of such Notice of Default and Election to Sell and after Notice of Sale having been
given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice of Sale,
whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it
may determine unless specified otherwise by the Trustor according to California Civil Code Section 2924g(b),
at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale.
Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the
property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any
matters of facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation,
Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend
the title of such purchaser or purchasers.
After deducting all reasonable costs, fees and expenses of Trustee, including costs of
evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the
unpaid Principal amount of the Note; (ii) all other amounts owed to Beneficiary under the Loan Documents;
(iii) all other sums then secured hereby; and (iv) the remainder, if any, to Trustor.
Trustee may postpone sale of all or any portion of the Property by public announcement
at such time and place of sale, and from time to time thereafter, and without fixrther notice make such sale at the
time fixed by the last postponement, or may, in its discretion, give a new Notice of Sale.
Receiver.
If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and
without further notice to Trustor or anyone claiming under the Security, and without regard to the then value of
the Security or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to
appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to
such appointment and waives further notice of any application therefor. Any such receiver or receivers shall
have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of
Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the
date of confirmation of sale of the Security, unless such receivership is sooner terminated.
Remedies Cumulative.
No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is
intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity.
No Waiver.
No delay or omission of the Beneficiary to exercise any right, power or remedy accruing
upon any Event of Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a
waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this
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Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious
by the Beneficiary. Beneficiary's expressed or implied consent to a breach by Trustor, or a waiver of any
obligation of Trustor hereunder shall not be deemed or construed to be a consent to any subsequent breach, or
further waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the part of the
Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long
such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any
rights, power or remedies consequent on any Event of Default by the Trustor.
If the Beneficiary (i) grants forbearance or an extension of time for the payment of any
sums secured hereby, (ii) takes other or additional security or the payment of any sums secured hereby, (iii)
waives or does not exercise any right granted in the Loan Documents, (iv) releases any part of the Security from
the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the
Loan Documents, (v) consents to the granting of any easement or other right affecting the Security, or (iv)
makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release,
discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the
Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-signer, endorser, surety
or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from
exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then
made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or
instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby.
Suits to Protect the Security.
The Beneficiary shall have power to (a) institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any
violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of Trust) in the
Security, and (c) restrain the enforcement of or compliance with any legislation or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance
with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the
Beneficiary.
Trustee May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment,
composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent
permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or
advisable in order to have the claims of the Beneficiary allowed in such proceedings and for any additional
amount which may become due and payable by the Trustor hereunder after such date.
Waiver.
The Trustor waives presentment, demand for payment, notice of dishonor, notice of protest and
nonpayment, protest, notice of interest on interest and late charges, and diligence in taking any action to collect
any sums owing under the Note or in proceedings against the Security, in connection with the delivery,
acceptance, performance, default, endorsement or guaranty of this Deed of Trust.
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MISCELLANEOUS
Amendments.
This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument
in writing signed by Beneficiary and Trustor.
Reconveyance by Trustee.
Upon written request of Beneficiary stating that all sums secured hereby have been paid or forgiven, and
upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of
Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally
entitled thereto.
Notices.
If at any time after the execution of this Deed of Trust it shall become necessary or convenient for one of
the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or
communication shall be in writing and shall be served personally or by depositing the same in the registered or
certified United States mail, return receipt requested, postage prepaid and (1) if intended for Beneficiary shall be
addressed to:
City of Ukiah
300 Seminary Avenue
Ukiah, CA 95482
Attn: Executive Director
and (2) if intended for Trustor shall be addressed to:
Ukiah Community Center
888 N. State Street
Ukiah, CA 95482
Attn: Executive Director
Any notice, demand or communication shall be deemed given, received, made or communicated on the date
personal delivery is effected or, if mailed in the manner herein specified, on the delivery date or date delivery is
refused by the addressee or the date the item is returned as undeliverable, as shown on the return receipt. Either
party may change its address at any time by giving written notice of such change to Beneficiary or Trustor as the
case may be, in the manner provided herein, at least ten (10) days prior to the date such change is desired to be
effective.
Successors and Joint Trustors.
Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind
any transferee or successors in interest. Where the terms of the Deed of Trust have the effect of creating an
obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of
the Trustor and such transferee. Where Trustor is more than one entity or person, all obligations of Trustor shall
be deemed to be a joint and several obligation of each and every entity and person comprising Trustor.
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Captions.
The captions or headings at the beginning of each Section hereof are for the convenience of the parties
and are not a part of this Deed of Trust.
Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term or provision
hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent
jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which
terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or
unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security,
the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or
applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this
Deed of Trust.
Governing Law.
This Deed of Trust shall be governed by and construed in accordance with the laws of the State of
California.
Gender and Number.
In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine
and neuter and vice versa, if the context so requires.
Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and any reference to
a deed of trust shall also refer to a mortgage.
Actions.
Trustor agrees to appear in and defend any action or proceeding purporting to affect the Security.
Substitution of Trustee.
Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or
acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor
trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or
acting hereunder. Each such appointment and substitution shall be made by written instrument executed by
Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the
proper office of the county or counties in which the Property is situated, shall be conclusive proof of proper
appointment of the successor trustee.
Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of
Trust is hereby waived to the full extent permissible by law.
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Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public
record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any parry
hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or
Trustee shall be a party unless brought by Trustee.
Subordination
This Deed of Trust is and shall be subject and subordinate in all respects to the liens, terms, covenants
and conditions of the deeds of trust securing the Senior Financing as defined in the Loan Agreement. The
rights and remedies of Beneficiary under this Deed of Trust are subordinate and subject to the restrictions and
limitations set forth in the Senior Financing including any regulatory agreements and restrictive covenants.
Each successor or assign of Beneficiary shall be deemed, by virtue of such successor's or assign's acquisition of
the Deed of Trust, to have agreed to perform and observe all of the terms, covenants and conditions to be
performed or observed as required by the Senior Financing.
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above
written.
TRUSTOR:
Ukiah Community Center
B
Its: Executive Director
26
z ~
EXHIBIT I TO DEED OF TRUST
LEGAL DESCRIPTION
The land referred to herein is described as follows:
All that certain real property situate, lying and being in the City of Ukiah, County of Mendocino, State of California, more
particularly described as follows:
Tract One:
Parcel 1, as designated on Parcel Map for Jess Rawles, filed for record May 31,1973, in Map Case 2, Drawer 21, Page 58,
Mendocino County Records.
Together with that portion of Parcel 1, as numbered and designated upon Parcel Map No. MD 3-75 filed for record October
27, 1975 in Map Case 2, Drawer 27, Page 22, Mendocino County Records, described as follows:
Beginning at a 1/2" iron pipe as shown on the above mentioned Parcel Map No. MD 3-75 at the Southwest corner of said
Parcel I; thence along the Westerly line of said Parcel 1, North 02°16'05" West (N02°15'14"W) a distance of 98.38 fl.;
thence leaving said Westerly line, North 87°53'50" Fast (N8705111","E) along the Northerly boundary of said Parcel 1, a
distance of 86.29 ft.; (86.31 ff.); thence leaving said Northerly boundary of Parcel 1, South 02°19'46" East a distance of
100.60 ft. to a point on the Southerly line of said Parcel 1; thence along said Southerly line of said Parcel 1, South 89°22' 08"
West (589°21'22"W) a distance of 86.43 ft. to the point of beginning.
APN: 002-080-50
Tract Two:
An access easement described as follows:
That portion of Parcel 1, as numbered and designated upon Parcel Map MD 3-75, as mentioned above, lying northerly of the
following described line:
Commencing at a 1/2" iron pipe at the Southwest comer of said Parcel 1; thence along the Westerly line of said Parcel 1,
North 02116'05" West a distance of 98.38 ft.; thence leaving said Westerly line, North 87°53'50" East along the Northerly
boundary of said Parcel 1, a distance of 86.29 ft,; thence North 02`I9'49" West a distance of 20.64 ft. to the Point of
Beginning; thence leaving 'said Northerly boundary of said Parcel 1, North 87°53'23" East a distance of 124.65 ft., more or
less, to a point on the Basterly line of said Parcel 1.
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I
EXHIBIT C TO AGREEMENT
INSURANCE REQUIREMENTS
At close of escrow, the City must receive a one-year prepaid Certificate of Insurance policy (or
a binder followed by a certificate within thirty (30) days of loan closing) evidencing the following coverage:
GENERAL REQUIREMENTS:
Property and liability insurance policies, a separate flood insurance policy (if applicable) and
all renewals must be with a company that rates A- or better, and has a Financial Size of Class
VIII or better in Best's Key Rating Guide. The City must approve exceptions in writing.
All policies must name the City as loss payee. All liability policies must name the City
as an additional named insured.
2. HAZARD (PROPERTY):
A. Perils to be Insured:
Special perils for direct physical loss or damage to property, subject to policy exclusions,
definitions, and limitations. Include coverage for the following perils:
(1) Special form
(2) Ordinance or law, including:
(a) Loss to undamaged portion of the building
(b) Demolition cost
(c) Increased cost of construction
(d) Increased period of restoration
(3) Back up of sewers and drains
(4) Flood special form
B. Covered Property: Real property improvements; and contents coverage.
(1) Property Covered: All real and personal property owned by the insured or in which the insured
has an interest, or for which the insured may be legally liable or which the insured has agreed in
writing to insure, including:
a. Insurance also applies to all temporary structures on premises specified or within 100'
thereof
b. Accounts receivable
c. Valuable papers and records
d. Fine arts
e. Property in transit
f. Fire damage legal liability - real property
g. Trees, plants and shrubs
(2) Additional Coverage/Extensions (detail what items will not be included, if any):
a. Business income, including:
(i)
Extended period of indemnity
(ii)
Contingent business interruption
(iii)
Off-premise power
(iv)
Extra expense, including from dependent properties
(v)
Interruption by civil authority
(vi)
Neighboring property
(vii)
Loss of rents/maintenance fees
(viii)
Expending expenses
(ix)
Increased period of restoration
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b. Soft costs
c. Debris removal
d. Pollutant clean-up and removal, including mold (sub-limit acceptable)
e. Unnamed locations
f. Newly acquired locations
g. Waiver of subrogation
C. Limit of Insurance:
Blanket limit covering buildings, structures, and personal property with a separate blanket limit for business
income.
D. Valuation:
In the event of loss or damage to the insured property, the basis of adjustment shall be:
(1) All real property improvement and personal property replacement cost (unless a lesser amount is
approved by the City)
(2) Valuable papers and records - value: the cost of reproducing or reconstructing
(3) Fine arts - the lesser of market value, replacing or restoring the property
(4) Loss of rents/extra expense - actual loss sustained or 90% coinsurance
(5) EDP equipment - functional replacement cost
E. Deductibles:
$2,500 maximum deductible per occurrence; or
$1,000 maximum deductible per occurrence if the completed project value is less than $300,000.
Flood may have alternative deductibles.
F. Co-Insurance:
90% coinsurance clause on policy: Preauthorized Agreed Amount endorsement
Loss payee: Lenders Loss Payable Endorsement is required naming the City as Loss Payee.
3. OTHER PROPERTY INSURANCE (WHEN APPLICABLE):
Flood Insurance: Coverage required to 80% of replacement cost if the property is located in a FEMA flood
plain designation.
Boiler and Related (When applicable) 100% of Machinery: replacement cost coverage is required.
4. COMPREHENSIVE GENERAL LIABILITY FOR BODILY INJURY PROPERTY DAMAGE AND PERSONAL
INJURY ON A STANDARD ISO FORM:
Minimum amount: $1,000,000 per occurrence; $2,000,000 aggregate; $2,000,000 per occurrence for
buildings with elevators; $4,000,000 aggregate.
Minimum amount: $5,000,000 per occurrence; $10,000,000 aggregate. May be provided
by an umbrella or excess liability.
For buildings valued
at more than $10,000,000:
Minimum amount for $2,000,000 first story
Buildings over five stories: $1,000,000 per each additional story.
Medical payments: $25,000 per person optimum; $5,000 per person minimum
5. OTHER COVERAGE:
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Workers Compensation: Required by state law if employees are involved. Employer- liability shall be
$1,000,000.
Employer non-owned
Auto liability: Same limit as General liability.
6. SPECIAL COVERAGE:
SRO: Disclose central kitchens as separate personal property by square footage and value
of the kitchen service equipment (disclose receipts if applicable).
Recreation/Community Special coverage required if not included in the building and business personal
Rooms: property limits.
Day Care Facilities: Special coverage required if run separately. The day care center will be required to
have separate insurance with limits not less than the limits applicable above and said
policy shall name the owner and the City as an insured.
7. CERTIFICATES AND EVIDENCES:
All Certificates and Evidences must include the name of the project, the name of the UCC as named insured, the
HCD standard agreement number and the address of the project. The City, its officers, agents, employees,
directors, and appointees shall be named as insureds as their interests may appear.
ALL POLICIES MUST INCLUDE THE FOLLOWING:
Named Insured: UCC
Additional Named The City of Housing and Community Project and its officers, agents,
Insured: employees, and servants must be named as an insured.
Endorsement: Lender's Loss Payable Endorsement naming the City as Loss Payee.
Cancellation/Change The City must be notified 30 days prior to any change, non-renewal or cancellation
Clause: of the insurance policy.
The City shall be identified on all insurance documents as follows:
City of Ukiah
300 Seminary Ave.
Ukiah, CA 95482
Attach agent's signed certification of coverage on agent's letterhead.
30