HomeMy WebLinkAboutDanco 2019-11-15; Acknowledgement 2024-11-08 MORTGAGEE JOINDER AND CONSENT
The undersigned Mortgagee does hereby join in and consent to the granting of the easements set
forth in this Easement and Shared Use Agreement over the Summercreek Land herein described,
and agrees that its Deed of Trust, dated August 15, 2003 and recorded on November 16, 2004 as
Instrument No. 2004-25581 in the Official Records of Mendocino County, shall be subordinated
to this Easement and Shared Use Agreement.
IN WITNESS WHEREOF, the City of Ukiah has caused this Mortgagee Joinder and Consent to
be executed on I I I V _, 202 .
11
CITY OF UKIAH, a political subdivision of the
State of California
By:
Name: r,*� ;Ale-01p
Title: i
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached,and not the truthfulness,accuracy,or vandity of that
document.
STATE OF CALIFORNIA }
COUNTY OF- Pa-,, A 4 C r la.a )
On 1 _ before me, a Notary
Public, personally appeared .Q A I� i �[ +1�, who proved to me on the
basis of satisfactory evidence to be th person w se name( is.erc subscribed to the within
instrument, and acknowledged to that e; f executed the same in isr7h, ei•r-
authorized capacity(}; and that b hi ignature(S�on the instrument the personA, or
the entity upon behalf of which the person(A acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
Witness my ha d and offial seal.
tary Public
(SEAL)
*my
KRISTINE LAWLER
Notary Public.California
Mendocino County
Commission N 2340924
Comm.Expires Jan 2,2025
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
CONSENT AND SUBORDINATION
TO
RECIPROCAL EASEMENTS, MAINTENANCE AND USE AGREEMENT
The undersigned is mortgage lender pursuant to that certain Multifamily Deed of Trust,
Assignment of Rents, Security Agreement and Fixture Filing dated as of October 21, 2004 and
recorded October 26, 2004 as Document Number 2004-24116 (the "Deed of Trust") in the
Recorders Office of the Recorder of Mendocino County, State of California ("Official
Records"), executed by UKIAH SUMMERCREEK ASSOCIATES, a California limited
partnership ("Borrower") to FIRST AMERICAN TITLE COMPANY, as Trustee for the
benefit of LEWISTON STATE BANK, a Utah banking corporation ("Original Lender"), as
assigned to CAPSTONE REALTY ADVISORS, LLC, by Original Lender by Assignment of
Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing, dated as of
November 6, 2006 (the "Interim Assignment'), recorded November 13, 2006 as Document
Number 2006-22347 in the Official Records, as further assigned to Mortgagee MIDLAND
LOAN SERVICES, INC., a Delaware corporation by Interim Lender by Corporate Assignment
of Deed of Trust, dated as of October 22, 2009 (the "Assignment'), recorded November 16,
2009 as Document Number 2009-17320 in the Official Records.
The undersigned does hereby consent, solely in its capacity as a mortgage lender to Borrower, to
the terms and conditions of the foregoing Reciprocal Easements, Maintenance and Use
Agreement.
Further, the undersigned agrees that its interest as such mortgagee, assignee, and secured party
pursuant to the Security Instrument or any other related financing documents shall be subject and
subordinate to the terms and provisions of the Reciprocal Easements, Maintenance and Use
Agreement.
[Remainder of this page intentionally left blank.]
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
Executed this day of 12023.
LENDER:
MIDLAND LOAN SERVICES, a division of PNC
Bank,National Association
By:
Name:
Title:
STATE OF KANSAS )
ss.
COUNTY OF JOHNSON )
On this day of , 2023, before me, a Notary Public in and for the
State of Kansas, personally appeared , personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that he was authorized to execute the instrument, and
acknowledged that he is the Senior Vice President and Servicing Officer of Midland Loan
Services, a division of PNC Bank, National Association to be the free and voluntary act and
deed of said company for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year
first above written.
(seal)
(Print Name)
NOTARY PUBLIC in and for the State of
Kansas.
My appointment expires
]5
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
EXHIBIT A
LEGAL DESCRIPTION OF SUMMERCREEK LAND
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF UKIAH,
COUNTY OF MENDOCINO, STATE OF CALIFORNIA AND IS DESCRIBED AS
FOLLOWS:
PARCEL ONE:
COMMENCING AT A CITY MONUMENT AT THE INTERSECTION OF THE
CENTERLINE OF STATE STREET IN THE CITY OF UKIAH WITH THE CENTERLINE
OF THE RIVER ROAD; THENCE RUNNING NORTH 72° 29' EAST, ALONG THE
CENTERLINE OF THE RIVER ROAD 460.69 FEET; THENCE SOUTH I I" 00' EAST, 25.17
FEET TO THE NORTHWEST CORNER OF A RIGHT OF WAY DESCRIBED IN THE
DECREE QUIETING TITLE IS MARIE CYRSON, DATED APRIL 3, 1931, AND
RECORDED IN BOOK 60 OF OFFICIAL RECORDS, AT PAGE 64, MENDOCINO
COUNTY RECORDS, BEING THE POINT OF BEGINNING; THENCE SOUTH 11' 00'
EAST, ALONG THE WEST LINE OF SAID RIGHT OF WAY 351.31 FEET; THENCE
NORTH 82`' 10' EAST, 585.14 FEET TO THE WESTERLY LINE OF THE
NORTHWESTERN PACIFIC RAILROAD RIGHT OF WAY; THENCE SOUTH 10' 09'
EAST, ALONG THE WEST LINE OF SAID RAILROAD RIGHT OF WAY 451.54 FEET;
THENCE SOUTH 82` 07' 03" WEST, 764.14 FEET; THENCE NORTH 07' 15' WEST, 372.86
FEET; THENCE NORTH 81� 44' EAST, 141.25 FEET; THENCE NORTH I F, 00' WEST,
77.93 FEET; THENCE NORTH 11' 00' WEST PARALLEL WITH THE WESTERLY LINE
OF THE ABOVE MENTIONED RIGHT OF WAY 347.97 FEET TO THE SOUTH LINE OF
THE RIVER ROAD; THENCE NORTH 72° 29' EAST, 20.13 FEET TO THE POINT OF
BEGINNING.
SAVING AND EXCEPTING THAT PORTION CONVEYED:
1) BY HOGAN'S SURPLUS STORES, INC., TO GEO. H. LOUIS REALTY CO., BY
DEED RECORDED APRIL 14, 1961 IN BOOK 566 OF OFFICIAL RECORDS, PAGE 111,
UNDER RECORDER'S SERIAL NO. 23235, MENDOCINO COUNTY RECORDS.
2) ROBERT H. GERBER, ET UX, TO ESSENAR INVESTMENT OF AUBURN, A
LIMITED PARTNERSHIP, BY DEED RECORDED APRIL 14, 1965 IN BOOK 686, PAGE
737, MENDOCINO COUNTY RECORDS.
3) BY UKIAH SUMMER CREEK ASSOCIATES TO THE COUNTY OF MENDOCINO
RECORDED MAY 6, 2004 AS DOCUMENT NO. 2004-9902 OF OFFICIAL RECORDS.
PARCEL TWO:
1 r,
Easement and Shared Use Agreement
Ukiah Acorn Vailey Plaza
COMMENCING AT THE MONUMENT AT THE INTERSECTION OF THE CENTERLINES
OF SOUTH STATE STREET(US. HIGHWAY 101) AND GOBBI STREET, UKIAH,
CALIFORNIA, THENCE SOUTH 05'43' 30" EAST ALONG THE CENTERLINE OF
SOUTH STATE STREET, 244.11 FEET TO STATE HIGHWAY STATION 718104.16 E.C.;
THENCE CONTINUING ALONG SAID CENTERLINE ALONG THE ARC OF A CURVE
TO THE LEFT, RADIUS 20,000.00 FEET, TO A CENTRAL ANGLE OF 01° 06' 11", 385.04
FEET TO STATE HIGHWAY STATION 714-19.12 P.O.C.; THENCE NORTH 831, 10' 19"
EAST, 50.00 FEET TO THE EASTERLY RIGHT OF WAY LINE OF SAID SOUTH STATE
STREET; THENCE NORTH 82' 16' 10" EAST, 281.70 FEET; THENCE SOUTH 07" 05' 12"
EAST, 120.64 FEET; THENCE NORTH 82- 2F 15" EAST ALONG THE SOUTH LINE OF
THE PARCEL OF LAND DESCRIBED AS PARCEL ONE IN THE DEED FROM HOGON'S
SURPLUS STORES INC., TO ROBERT F. GERBER, ET UX, DATED OCTOBER 10, 1961
RECORDED OCTOBER 30, 1961 IN VOLUME 580 OF OFFICIAL RECORDS, PAGE 339,
MENDOCINO COUNTY RECORDS, 353.63 FEET TO THE POINT OF BEGINNING;
THENCE NORTH OT' 38' 45" WEST, 374.59 FEET; THENCE SOUTH 82' 02' 50" WEST
208.32 FEET; THENCE NORTH 10' 46' 04" WEST,425.97 FEET TO THE SOUTHERLY
RIGHT OF WAY LINE OF GOBBI STREET; THENCE ALONG SAID RIGHT OF WAY
LINE NORTH 72" 39' 30" EAST, 20.13 FEET; THENCE LEAVING SAID RIGHT OF WAY
LINE AND ALONG THE EXTERIOR LINE OF SAID GERBER PARCEL SOUTH 10' 46'
04" EAST 351.46 FEET AND NORTH 82:' 25' 02" EAST 385.24 FEET; THENCE SOUTH 09�
46' 14" EAST 451.15 FEET TO THE SOUTH LINE OF SAID GERBER PARCEL; THENCE
SOUTH 82' 2 P 15" WEST ALONG SAID SOUTH LINE 209.44 FEET TO THE POINT OF
BEGINNING.
EXCEPTING THEREFROM THAT PORTION GRANTED TO THE COUNTY OF
MENDOCINO RECORDED MAY 6, 2004 AS DOCUMENT NO. 2004-9902 OF OFFICIAL
RECORDS.
PARCEL THREE:
THE EASEMENT FOR STORM DRAIN RESERVED BY UKIAH SUMMERCREEK
ASSOCIATES IN THE DEED TO THE COUNTY OF MENDOCINO RECORDED MAY 6,
2004 AS DOCUMENT NO. 2004-9902 OF OFFICIAL RECORDS.
PARCEL FOUR:
THE EASEMENT FOR EMERGENCY ACCESS GRANTED TO UKIAH SUMMERCREEK
ASSOCIATES BY THE COUNTY OF MENDOCINO RECORDED MAY 5, 2004 AS
DOCUMENT NO. 2004-9906 OF OFFICIAL RECORDS.
APN: 003-040-83
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
EXHIBIT B
LEGAL DESCRIPTION OF ACORN LAND
For APNIParcel ID s : 003-040-77-00,003-040-78-013 and 003-040-79-00
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF UKIAH,
COUNTY OF MENDOCINO, STATE OF CALIFORNIA AND IS DESCRIBED AS
FOLLOWS:
PARCEL ONE:
COMMENCING AT A 1 1i4 INCH IRON PIPE ON THE WESTERLY RIGHT OF WAY LINE
OF THE NORTHWESTERN PACIFIC RAILROAD AT THE SOUTHERLY TERMINUS OF
THE COURSE "SOUTH 09'' 47' 26" EAST, 225.30 FEET" AS SHOWN ON A PARCEL MAP
FILED IN MAP CASE 2, DRAWER 48 PAGE 25, MENDOCINO COUNTY RECORDS, THE
SAID IRON PIPE ALSO MARKING THE NORTHEAST CORNER OF THAT 4.68 ACRE
PARCEL AS SHOWN ON A RECORD OF SURVEY MAP FILED IN MAP CASE 2,
DRAWER 22, PAGE 71, MENDOCINO COUNTY RECORDS; THENCE SOUTH 82°25' 02"
WEST (RECORD SOUTH 82"15' 08" WEST ALONG THE NORTH LINE OF THE SAID 4.68
ACRE PARCEL 226.87 FEET TO THE POINT OF BEGINNING: THENCE CONTINUING
ALONG THE SAID NORTH LINE OF THE 4.68 ACRE PARCEL SOUTH 82" 25' 02" WEST,
71.18 FEET; THENCE LEAVING THE SAID NORTH LINE OF THE 4.68 ACRE PARCEL
NORTH 08° 00' 59" WEST, 126.94 FEET (RECORD NORTH OK 16' 08" WEST, 127.00
FEET) TO THE SOUTHWEST CORNER OF PARCEL 1 AS SHOWN ON THE SAID
PARCEL MAP; THENCE ALONG THE WEST LINE OF THE SAID PARCEL 1,NORTH 07'
51- 3 1" WEST (RECORD NORTH 08:: 04' 42" WEST), 271.13 FEET TO THE SOUTHERLY
RIGHT OF WAY LINE OF GOBBI STREET AS SHOWN ON THE SAID PARCEL MAP;
THENCE NORTH 72" 49' 02" EAST (RECORD NORTH 72' 39' 3L" EAST), 102.29 FEET;
THENCE LEAVING THE SAID SOUTHERLY RIGHT OF WAY LINE OF GOBBI STREET
SOUTH 62" 06' 11" EAST, 15.95 FEET; THENCE FROM A TANGENT THAT BEARS
SOUTH 14" 10' 15" EAST, ALONG THE ARC OF A CURVE TO THE RIGHT WITH A
RADIUS OF 375.00 FEET, A CENTRAL ANGLE OF 21` 57' 17" AND AN ARC LENGTH
OF 143.69 FEET; THENCE ALONG A REVERSE CURVE TO THE LEFT WITH A RADIUS
OF 825.00 FEET, A CENTRAL ANGLE OF 15" 22' 00" AND AN ARC LENGTH OF 221.26
FEET; THENCE SOUTH 07' 34' 58"EAST,44.85 FEET TO THE POINT OF BEGINNING.
SAID DESCRIPTION IS PURSUANT TO CITY OF UKIAH BOUNDARY LINE
ADJUSTMENT NO. 02- 29 DISCLOSED BY QUITCLAIM DEED RECORDED OCTOBER
25, 2002, INSTRUMENT NO. 2002-23305, OFFICIAL RECORDS,
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
PARCEL TWO:
COMMENCING AT A 1 1.14 INCH IRON PIPE ON THE WESTERLY RIGHT OF WAY LINE
OF THE NORTHWESTERN PACIFIC RAILROAD AT THE SOUTHERLY TERMINUS OF
THE COURSE"SOUTH 09" 47' 26" EAST, 225.30 FEET" AS SHOWN ON A PARCEL MAP
FILED IN MAP CASE 2, DRAWER 48, PAGE 25, MENDOCINO COUNTY RECORDS, THE
SAID IRON PIPE ALSO MARKING THE NORTHEAST CORNER OF THAT 4.68 ACRE
PARCEL AS SHOWN ON A RECORD OF SURVEY MAP FILED IN MAP CASE 2,
DRAWER 22, PAGE 71, MENDOCINO COUNTY RECORDS; THENCE NORTH 09" 37' 32"
WEST (RECORD NORTH 09' 47' 26" WEST ALONG THE SAID WESTERLY RIGHT OF
WAY LINE OF THE NORTHWESTERN PACIFIC RAILROAD, 225.30 FEET TO THE
POINT OF BEGINNING: THENCE LEAVING THE SAID WESTERLY RIGHT OF WAY
LINE OF THE NORTHWESTERN PACIFIC RAILROAD SOUTH 82° 25' 02" WEST, 147.57
FEET; THENCE FROM A TANGENT THAT BEARS NORTH 05" 52' 15" EAST ALONG
THE ARC OF A CURVE TO THE RIGHT WITH A RADIUS OF 775.00 FEET, A CENTRAL
ANGLE OF 01`'54' 47" AND AN ARC LENGTH OF 25.88 FEET; THENCE ALONG A
REVERSE CURVE TO THE LEFT WITH A RADIUS OF 425.00 FEET, A CENTRAL
ANGLE OF 22c 20' 30" AND AN ARC LENGTH OF 165.72 FEET; THENCE NORTH 28' 5 F
04" EAST, 15.92 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF GOBBI STREET;
THENCE ALONG THE SAID SOUTHERLY RIGHT OF WAY LINE OF GOBBI STREET
NORTH 72" 49' 02" EAST (RECORD NORTH 72" 39' 31" EAST), 113.33 FEET TO THE
SAID WESTERLY RIGHT OF WAY LINE OF THE NORTHWESTERN PACIFIC
RAILROAD; THENCE LEAVING THE SAID SOUTHERLY RIGHT OF WAY LINE OF
GOBBI STREET AND ALONG THE SAID WESTERLY RIGHT OF WAY LINE OF THE
NORTHWESTERN PACIFIC RAILROAD, SOUTH 09" 37' 32" EAST (RECORD SOUTH 09:'
47' 26"EAST),221.14 FEET TO THE POINT OF BEGINNING.
SAID DESCRIPTION IS PURSUANT TO CITY OF UKIAH BOUNDARY LINE
ADJUSTMENT NO. 02- 29 DISCLOSED BY QUITCLAIM DEED RECORDED OCTOBER
25,2002, INSTRUMENT NO.2002-23306, OFFICIAL RECORDS.
PARCEL THREE:
BEGINNING AT A 1 114 INCH IRON PIPE ON THE WESTERLY RIGHT OF WAY LINE
OF THE NORTHWESTERN PACIFIC RAILROAD AT THE SOUTHERLY TERMINUS OF
THE COURSE "SOUTH 09c 47' 26" EAST, 225.30 FEET" AS SHOWN ON A PARCEL MAP
FILED IN MAP CASE 2, DRAWER 48, PAGE 25, MENDOCINO COUNTY RECORDS, THE
SAID IRON PIPE ALSO MARKING THE NORTHEAST CORNER OF THAT 4.68 ACRE
PARCEL AS SHOWN ON A RECORD OF SURVEY MAP FILED IN MAP CASE 2,
DRAWER 22 PAGE 71, MENDOCINO COUNTY RECORDS; THENCE LEAVING THE
SAID WESTERLY RIGHT OF WAY LINE OF THE NORTHWESTERN PACIFIC
RAILROAD SOUTH 82" 25' 02" WEST (RECORD SOUTH 82" 15' 08" WEST) ALONG
THE NORTH LINE OF THE SAID 4.68 ACRE PARCEL, 176.87 FEET; THENCE LEAVING
THE SAID NORTH LINE NORTH 07° 34' 58" WEST, 44.85 FEET; THENCE ALONG A
CURVE TO THE RIGHT WITH A RADIUS OF 775.00 FEET, A CENTRAL ANGLE OF 11:
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
27' 13" AND AN ARC LENGTH OF 181.98 FEET; THENCE NORTH 82" 25' 02" EAST,
147.57 FEET TO THE SAID WESTERLY RIGHT OF WAY LINE OF THE
NORTHWESTERN PACIFIC RAILROAD; THENCE SOUTH 09' 37' 32" EAST (RECORD
SOUTH 09° 47' 26" EAST) ALONG THE SAID WESTERLY RIGHT OF WAY LINE, 225.30
FEET TO THE POINT OF BEGINNING.
SAID DESCRIPTION IS PURSUANT TO CITY OF UKIAH BOUNDARY LINE
ADJUSTMENT NO. 02- 29 DISCLOSED BY QUITCLAIM DEED RECORDED OCTOBER
25, 2002, INSTRUMENT NO. 2002-23307,OFFICIAL RECORDS.
EXCEPTING FROM PARCELS ONE, TWO AND THREE, ALL THAT PORTION
DESCRIBED IN THE QUITCLAIM DEED IN FAVOR OF UKIAH SUMMERCREEK
ASSOCIATES, RECORDED OCTBER 25, 2002, INSTRUMENT NO. 2002-23304, OFFICIAL
RECORDS.
PARCEL FOUR:
A NON-EXCLUSIVE EASEMENT, AS AN APPURTENANCE TO PARCELS ONE, TWO
AND THREE DESCRIBED ABOVE, FOR INGRESS, EGRESS AND PUBLIC UTILITY
PURPOSES MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A 1 114 INCH IRON PIPE ON THE WESTERLY RIGHT OF WAY
LINE OF THE NORTHWESTERN PACIFIC RAILROAD AT THE SOUTHERLY
TERMINUS OF THE COURSE "SOUTH 09" 47' 26" EAST, 225.30 FEET" AS SHOWN ON
A PARCEL MAP FILED IN MAP CASE 2 DRAWER 48 PAGE 25 MENDOCINO
COUNTY RECORDS, THE SAID IRON PIPE ALSO MARKING THE NORTHEAST
CORNER OF THAT 4.68 ACRE PARCEL AS SHOWN ON A RECORD OF SURVEY MAP
FILED IN MAP CASE 2, DRAWER 22, PAGE 71, MENDOCINO COUNTY RECORDS;
THENCE SOUTH 82° 25' 02" WEST (RECORD SOUTH 82"15' 08" WEST) ALONG THE
NORTH LINE OF THE SAID 4.68 ACRE PARCEL 176.87 FEET TO THE POINT OF
BEGINNING: THENCE CONTINUING ALONG THE SAID NORTH LINE OF THE 4.68
ACRE PARCEL SOUTH 820 25' 02" WEST, 50.00 FEET; THENCE LEAVING THE SAID
NORTH LINE OF THE 4.68 ACRE PARCEL NORTH 07"34' 58" WEST, 44.85 FEET;
THENCE ALONG A CURVE TO THE RIGHT WITH A RADIUS OF 825.00 FEET, A
CENTRAL ANGLE OF 15° 22' 00" AND AN ARC LENGTH OF 221.26 FEET; THENCE
ALONG A REVERSE CURVE TO THE LEFT WITH A RADIUS OF 375.00 FEET, A
CENTRAL ANGLE OF 21° 57' 17" AND AN ARC LENGTH OF 143.69 FEET THENCE
NORTH 620 06' 11" WEST, 15.95 FEET TO THE SOUTHERLY RIGHT OF WAY LINE OF
GOBBI STREET; THENCE ALONG THE SAID SOUTHERLY RIGHT OF WAY LINE OF
GOBBI STREET NORTH 72° 49' 02" EAST (RECORD NORTH 720 39' 3 1" EAST), 72.79
FEET; THENCE LEAVING THE SAID SOUTHERLY RIGHT OF WAY LINE OF GOBBI
STREET SOUTH 28° 51' 04" WEST, 15.92 FEET; THENCE ALONG CURVE TO THE
RIGHT WITH A RADIUS OF 425.00 FEET, A CENTRAL ANGLE OF 220 20' 30" AND AN
ARC LENGTH OF 165.72 FEET; THENCE ALONG A REVERSE CURVE TO THE LEFT
WITH A RADIUS OF 775.00 FEET, A CENTRAL ANGLE OF 15° 22' 00" AND AN ARC
LENGTH OF 207.86 FEET; THENCE SOUTH 07' 34' 58" EAST, 44.85 FEET TO THE
POINT OF BEGINNING.
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
CONTRACT INFORMATION
CONTRACT No.: (gI 01 - 1q,5-
SUBMITTED BY: A&a Date:
PERSON/COMPANY:
PROJECT NAME: v�-cw vim. V
City Council Approval: Date:
Agenda Item No.:
Budget No(s):
Please attach:
• Sourcing method and justification (attach documentation if necessary)
• Post meeting staff report showing approval
• Documentation or description showing funding
• Insurance Documents
ADDITIONAL COMMENTS:_ M7 yL t� 'ft
AA
This instrument prepared by and when recorded return to:
Ukiah Gobbi Street LP
5251 Ericson Way
Arcata, CA 95521
RECIPROCAL EASEMENTS, MAINTENANCE,AND USE AGREEMENT
This Reciprocal Easements, Maintenance, and Use Agreement (this "Agreement") is dated as of
, 2023, by and between UKIAH SUMMERCREEK ASSOCIATES, A
CALIFORNIA LIMITED PARTNERSHIP, whose address is 3351 M Street, Merced, CA
95348 ("Summercreek Owner"), and UKIAH GOBBI STREET LP, a California limited
partnership, whose address is 5251 Ericson Way, Arcata, CA 95521 ("Acorn Owner").
Summercreek Owner and Acorn Owner are sometimes individually referred to herein as a
"Party"or collectively as the "Parties."
RECITALS
A. Summercreek Owner owns certain real property in the City of Ukiah, Mendocino
County, State of California, located at 755 Village Circle more particularly described on Exhibit
"A" attached hereto ("Summercreek Land").
B. Acorn Owner owns certain real property in the City of Ukiah, Mendocino County,
State of California, located adjacent to the Summercreek Land at the corner of Gobbi Street and
Village Circle and more particularly described on Exhibit"B"attached hereto ("Acorn Land").
C. Summercreek Owner has developed a 64-unit affordable apartment community
commonly known as "Summercreek Village" ("Summercreek") on the Summercreek Land. In
addition to affordable apartments, Summercreek contains a community center, an outdoor
children's play area, and outdoor recreation areas and amenities (collectively, "Summercreek
Amenities") for the use of the tenants, guests, and invitees of residents of Summercreek.
D. Acorn Owner intends to develop a 71-unit affordable apartment community to be
known as "Acorn Valley Plaza" ("Atom") on the Acorn Land. In addition to affordable
apartments, Acorn contains an outdoor children's play area, and outdoor recreation areas and
amenities (collectively, "Acorn Amenities") for the use of the tenants, guests, and invitees of
residents of Acorn.
E. The Summercreek Land and the Acorn Land are sometimes referred to
individually herein as a"Parcel" and collectively as the "Parcels."
F. Summercreek Owner desires to allow the Acorn Owner, and the employees,
agents, tenants, guests, and invitees of Acorn (collectively, the "Acorn Parties") to have access to
the Summercreek Amenities in the same manner as the tenants, guests, and invitees of
Summercreek, all subject to the terms of this Agreement.
G. Acorn Owner desires to allow the Summercreek Owner, and the employees,
agents, tenants, guests, and invitees of Summercreek (collectively, the "Summercreek Parties")
to have access to the Acorn Amenities in the same manner as the tenants, guests and invitees of
Acorn, all subject to the terms of this Agreement.
H. Summercreek Owner and Acorn Owner previously entered into that certain
unrecorded Sharing Agreement dated February 27, 2021 ("Sharing Agreement") that relates to
the subject matter of this Agreement. Upon the recordation of this Agreement in the official
records of Mendocino County, California ("Official Records"), the Sharing Agreement shall be
deemed terminated and the Parties shall have no further rights or obligations thereunder.
NOW, THEREFORE, in consideration of the foregoing and mutual representations,
warranties, covenants, and agreements herein contained, and such other consideration, the
receipt of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated into this Agreement.
2. Term and Commencement Date. The commencement date of this Agreement shall be
the date of recordation of this Agreement in the Official Records or such later date set forth
herein. The covenants under this Agreement are to run with the land in perpetuity and will be
binding on all parties and all persons claiming under them.
3. Mutual Use Easements.
3.1 Grant of Summercreek Easement; Use and Enjoyment of the
Summercreek Amenities. Subject to the terms and conditions of this Agreement, Summercreek
Owner hereby grants to the Acorn Parties, an easement for the non-exclusive use of the
Summercreek Amenities, under the same terms and conditions that the Summercreek Owner and
Summercreek Parties may use the Summercreek Amenities. Such rights of the Acorn Parties
shall include an easement for ingress and egress over such other portions of the Summercreek
Land as may be reasonably necessary to carry out the intent of this Agreement. The
Summercreek Owner, with the consultation of Acorn Owner, shall have the right to establish,
administer and enforce reasonable and non-discriminatory rules and regulations governing the
use and enjoyment of the Summercreek Amenities, and Acorn Owner on its own behalf and on
behalf of the acorn Parties, by signing this Agreement, agree to abide by such rules and
regulations, provided such rules and regulations shall not materially and adversely affect the
Acorn Owner or the Acorn Parties. The Summercreek Owner shall not enter into any agreement
or do or suffer any other act or permit any condition which would unreasonably interfere with the
reasonable access to, and use of the Summercreek Amenities by the Acorn Parties as set forth
herein.
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Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
3.2 Grant of Acorn Easement, Use and Enjoyment of the Acorn Amenities.
Subject to the terms and conditions of this Agreement, Acorn Owner hereby grants to the
Summercreek Parties, an easement for the non-exclusive use of the Acorn Amenities, under the
same terms and conditions that the Acorn Owner and Acorn Parties may use the Acorn
Amenities. Such rights of the Summercreek Parties shall include an easement for ingress and
egress over such other portions of the Acorn Land as may be reasonably necessary to carry out
the intent of this Agreement. The Acorn Owner, with the consultation of Summercreek Owner,
shall have the right to establish, administer and enforce reasonable and non-discriminatory rules
and regulations governing the use and enjoyment of the Acorn Amenities, and Summercreek
Owner on its own behalf and on behalf of the acorn Parties, by signing this Agreement, agree to
abide by such rules and regulations, provided such rules and regulations shall not materially and
adversely affect the Summercreek Owner or Summercreek Parties. The Acorn Owner shall not
enter into any agreement or do or suffer any other act or permit any condition which would
unreasonably interfere with the reasonable access to, and use of the Acorn Amenities by the
Summercreek Parties as set forth herein.
The term of the easements set forth in Section 3.1 and 3.2 hereof shall commence with respect to
each Parcel on the date that the respective Owner receives its final certificate of occupancy from
the City of Ukiah (each, an"Occupancy Date").
3.3 Indemnification.
3.3.1. Unless caused by the negligence or willful misconduct of Acorn
Owner, Summercreek Owner hereby agrees to defend, indemnify and hold Acorn Owner
harmless from and against any and all claims, liabilities, loss, damage, cost or expense,
including, but not limited to, attorneys' fees and court costs, which may be incurred or suffered
by Acorn Owner in connection with (i) failure by the Summercreek Owner to comply fully with
its obligations under this Agreement, and,'or (ii) the use of the Acorn Land by the Summercreek
Parties. This provision shall survive the expiration or termination of this Agreement.
3.3.2. Unless caused by the negligence or willful misconduct of
Summercreek Owner, Acorn Owner hereby agrees to defend, indemnify and hold Summercreek
Owner harmless from and against any and all claims, liabilities, loss, damage, cost or expense,
including, but not limited to, attorneys' fees and court costs, which may be incurred or suffered
by Summercreek Owner in connection with (i) failure by the Acorn Owner to comply fully with
its obligations under this Agreement, and.'or (ii) the use of the Summercreek Land by the
Summercreek Parties. This provision shall survive the expiration or termination of this
Agreement.
4, Maintenance Obligations and Cost Sharing_
4.1 Maintenance and Costs.
4.1.1. Summercreek Owner shall maintain and repair the Summercreek
Amenities, and other common improvements and buildings located on the Summercreek Land, in
such a manner as not to limit or impair the non-exclusive uses of the Summercreek Amenities as
provided for herein. The cost of such repair and maintenance of the Summercreek Amenities
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shall be the joint responsibility of Summercreek Owner and Acorn Owner. Commencing on the
Acorn Occupancy Date, Summercreek Owner shall be responsible for 70%' and Acorn Owner
shall be responsible for 30"o of all costs and expenses incurred in connection with such
operation, maintenance, replacement, and repair of the Summercreek Amenities ("Summercreek
Costs"). The determination of the requirement for, or manner of performing, any maintenance,
repair, replacement, or improvement to the Summercreek Amenities shall be determined by the
Summercreek Owner, subject to the approval of the Acorn Owner, which approval shall not be
unreasonably withheld, conditioned, or delayed. Acorn Owner shall remit payment to
Summercreek Owner for its share of Summercreek Costs within thirty (30) days of receipt by
Acorn Owner of invoices or other evidence that such work has been performed.
4.1.2 Acorn Owner shall be responsible for performing all maintenance,
repair, and replacement of improvements to the Acorn Amenities. The cost of such repair and
maintenance shall be the joint responsibility of Summercreek Owner and Acorn Owner.
Commencing on the Acorn Occupancy Date, Summercreek Owner shall be responsible for 70%
and Acorn Owner shall be responsible for 30%' of all costs and expenses incurred in connection
with such operation, maintenance, replacement, and repair of the Acorn Access Area ("Acorn
Costs"). The determination of the requirement for, or manner of performing, any maintenance,
repair, replacement, or improvement to the Acorn Amenities shall be determined by the Acorn
Owner, subject to the approval of the Summercreek Owner, which approval shall not be
unreasonably withheld, conditioned, or delayed. Summercreek Owner shall remit payment to
Acorn Owner for its share of Acorn Costs within thirty (30) days of receipt by Summercreek
Owner of invoices or other evidence that such work has been performed.
Insurance on each of the Parcels will be maintained by each respective Parcel owner in
accordance with Section 20 below and will not be shared or considered a part of the maintenance
and repair costs attributed to any of the Parcels.
4.2 Failure to Perform Maintenance Obligations. If any Owner fails to
comply with the maintenance requirements of Article 4.1 of this Agreement, and if such failure
is not corrected within sixty (60) days following written notice of such failure to the non-
complying Owner, a complying Owner shall be entitled, at its option, to perform such
maintenance responsibilities upon written notice to the non-complying Owner. If the complying
Owner undertakes the non-complying Owner's maintenance responsibilities, the non-complying
Owner shall reimburse the complying Owner for the reasonable out-of-pocket expenses incurred
by the complying Owner in completing such maintenance, repair, and replacement obligations
within thirty (30) days after the non-complying Owner's receipt of written demand for payment.
In no event will any breach of the terms of this Agreement result in loss of use or termination of
the use and access easements provided for in Sections 3.1 and 3.2 above.
4.3 Expenses of a Party. If any maintenance, repair, replacement or capital
improvements of the Acorn Amenities or Summercreek Amenities are attributable solely to one
Party or its tenant(s), guest(s) or invitee(s), whether through gross negligence or otherwise, that
Party and its tenant(s), guest(s) or invitee(s), shall be solely responsible for the costs and
expenses of said maintenance, repair replacement or capital improvement, reasonable wear and
tear excepted.
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Ukiah Acorn Valley Plaza
5. Subordination of Assessments to Mortgages, Mortgagee Protection. Any costs,
expenses, fees or assessments created under, or as a result of, this Agreement, including,
without limitation, those related to sharing costs of maintenance obligations set forth in Section
4 hereof (collectively, "Assessments") shall be subordinate and subject to the lien of any
mortgage or deed of trust, now or hereafter placed upon any Parcel ("Mortgage"), which has
been made in good faith and for value and recorded in the Official Records, and the sale or
transfer of any Parcel pursuant to judicial or non judicial foreclosure of such Mortgage shall
extinguish any lien recorded in respect of such Assessments as to payments which became due
prior to such sale or transfer; provided, however, that the owner of the affected Parcel shall
continue to remain personally liable for the Assessments. No sale or transfer shall relieve such
Parcel from lien rights for any Assessments thereafter becoming due nor from the lien of any
subsequent Assessment. Where the mortgagee ("Mortgagee") of a Mortgage or other purchaser
of a Parcel obtains title to the same as a result of foreclosure, such purchaser and their
successors or assigns shall not be liable for Assessments chargeable to such Parcel which
became due prior to the acquisition of title to such Parcel by such Mortgagee or other
purchaser. Notwithstanding anything to the contrary herein, no breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust made in
good faith for value now or hereafter encumbering any Parcel or any portion thereof. Any
party acquiring title to any Parcel or any portion thereof pursuant to the foreclosure or deed-in-
lieu of foreclosure of a Mortgage shall not be liable for any fines, penalties, reimbursement
obligations or other amounts owing under this Agreement which arise prior to the date such
party acquires title to any Parcel or any portion thereof(provided, however, such party shall be
liable under this Agreement for Assessments attributable to the acquired Parcel for any
amounts arising after the date such party acquires title to any Parcel).
6. Entire Agreement. This Agreement constitutes the whole agreement between the Parties
hereto and no warranties, agreements or representations have been made or shall be binding
upon either Party unless set forth within this Agreement or within a written addendum executed
by all Parties hereto. All prior oral agreements between the Parties are superseded by this
Agreement.
7. Amendments. This Agreement may not be amended, modified, changed, or terminated
except by a writing signed by all the Parties hereto, the Summercreek Owner investor Limited
Partner, and the Acorn Owner Investor Limited Partner. A Party may waive one or more of its
rights under this Agreement in writing signed by the Party and such writing need not be
recorded. Otherwise, no modification or amendment of any provision of this Agreement shall
be binding unless signed by both Parties and consented to by the Summercreek Owner Investor
Limited Partner and the Acorn Owner Investor Limited Partner and recorded against the
Parcels in the real property records of Mendocino County, California.
8. Notice. (a) All notices shall be addressed to the parties at such addresses as are
specified in page I to this Agreement, or as the parties may from time to time direct in writing.
Specifically, the Parties agree to give the Investor Limited Partners (as defined below) and any
Mortgagee of a Parcel prompt written notice of any default by the other Party under this
Agreement. Any notice under this Agreement shall be in writing and be delivered in person or
by public or private courier service (including U.S. Postal Service Express Mail and Federal
Express)or certified mail or by electronic mail. Any notice given by certified mail shall be sent
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Ukiah Acorn Valley Plaza
with return receipt requested. All notices pursuant to facsimile shall be sent to such facsimile
number as the parties may direct in writing. Any notice shall be deemed to have been given on
(a) actual day or delivery or refusal, (b) the day of mailing by registered or certified mail, or(c)
the day electronic mail delivery is verified.
(b) Notice to Investor Limited Partners.
Acorn Owner agrees to give Alliant Tax Credit Fund XXIV, Ltd., Summercreek Owner's
investor limited partner ("Summercreek Owner Investor Limited Partner"), written notice of
any and all defaults by Summercreek Owner under this Agreement, and an opportunity, at the
Summercreek Owner Investor Limited Partner's option, to cause the cure of such default
within the cure periods set forth herein, prior to exercising any remedies under this Agreement.
Acorn Owner agrees that the Summercreek Owner Investor Limited Partner will have thirty
(30) days after the Summercreek Owner Investor Limited Partner's receipt of notice of such
default to cure, or, as to non-monetary defaults, such longer period as is reasonably necessary
for the Summercreek Owner Investor Limited Partner to effect a cure, provided that curative
action is commenced within the cure period and diligently prosecuted. Acorn Owner agrees to
accept cure by the Summercreek Owner Investor Limited Partner as if such cure were made by
Summercreek Owner. All notices to Summercreek Owner Investor Limited Partner shall be
sent in accordance with the procedures for delivering notices set forth herein to the following
address or such alternate or additional contact names and/or addresses of which Acorn Owner
is so notified in writing by the Summercreek Owner Investor Limited Partner:
Alliant Tax Credit Fund XXIV, Ltd.
c:'o Alliant Asset Management Company LLC
21550 Oxnard Street, Suite 1020
Woodland Hills, CA 92367
Phone: 818-668-6800
Summercreek Owner agrees to give to BF FRE 2018, Limited Partnership, a Massachusetts
limited partnership, together with its successors and assigns, Acorn Owner's investor limited
partner("Acorn Owner Investor Limited Partner"), written notice of any and all defaults by
Acorn Owner under this Agreement, and an opportunity, at the Acorn Owner Investor Limited
Partner's option, to cause the cure of such default within the cure periods set forth herein, prior
to exercising any remedies under this Agreement. Summercreek Owner agrees that the Acorn
Owner Investor Limited Partner will have thirty (30) days after the Acorn Owner Investor
Limited Partner's receipt of notice of such default to cure, or, as to non-monetary defaults, such
longer period as is reasonably necessary for the Acorn Owner Investor Limited Partner to effect
a cure,provided that curative action is commenced within the cure period and diligently
prosecuted. Summercreek Owner agrees to accept cure by the Acorn Owner Investor Limited
Partner as if such cure were made by Summercreek Owner. All notices to Acorn Owner Investor
Limited Partner shall be sent in accordance with the procedures for delivering notices set forth
herein to the following address or such alternate or additional contact names and/or addresses of
which Summercreek Owner is so notified in writing by the Acorn Owner Investor Limited
Partner.
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Ukiah Acorn Valley Plaza
BF FRE 2018, Limited Partnership
c/o Boston Financial Investment Management, LP
101 Arch Street, 13th Floor
Boston, MA 02110
Attention: Asset Management-- Acorn Valley Plaza
With a copy to:
Holland & Knight LLP
10 St. James Avenue, 11 th Floor
Boston, MA 02116
Attention: Kristen M. Cassetta, Esq.
9. Time. Time is of the essence of this Agreement.
10, Counterparts, This Agreement may be executed in counterparts and upon every Party
having executed a counterpart, each signed copy shall have the same force and effect as an
original document and as if the Parties to the counterparts had signed the same document.
11. Binding Agreement. This Agreement shall extend to and bind the representatives,
successors and assigns of the parties hereto.
12. Severability. If any term or provision of this Agreement or the application of it to any
Party or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to Parties or circumstances, other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
13. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall
they be in any way interpreted or construed to create a joint venture, partnership, or any other
similar relationship between the Parties.
14. Captions and Headings. The captions and headings in this Agreement are for reference
only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions or agreements contained herein.
15. Construction. In construing the provisions of this Agreement and whenever the context
so requires, the use of a gender shall include all other genders, the use of the singular shall
include the plural, and the use of the plural shall include the singular.
16. Exhibits and Recitals. The recitals above, mortgagee consents, and exhibits attached
hereto are incorporated herein and made a part hereof to the full extent as if each were set forth
in its entirety in the body hereof.
17. Interpretation. This Agreement is intended to satisfy the requirements of Internal
Revenue Code Section 42, as amended, and the treasury regulations promulgated thereunder
and all applicable affordable housing requirements and shall be interpreted consistently
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Ukiah Acorn Valley Plaza
therewith. If this Agreement does not satisfy any such requirement, it shall be retroactively
amended in the smallest amount possible so as to comply with such requirements. The parties
agree to make any adjustments necessary to facilitate such compliance.
18. Estoppel Certificates. From time to time, upon written request of either party or any of
their mortgagees, limited partners, successors or assigns, each party shall execute and deliver to
the requesting party an estoppel certificate confirming whether there are any defaults under this
Agreement and such other matters as such requesting party shall reasonably request.
19. Choice of Law. This Agreement and all rights and obligations of the parties hereunder
will be governed by and construed and interpreted in accordance with the laws of the State of
California.
20. Insurance. Each owner of a Parcel shall maintain adequate insurance, including
comprehensive broad form general liability insurance in the amount of$1,000,000.12,000,000,
covering any use, operation, repair or maintenance of the amenities located within its Parcel. In
addition, each Party shall cause their insurance carrier to name the other as additional insured
on its general liability policy and shall provide evidence of such insurance to the other Party
upon request. This provision shall survive the expiration or termination of the Agreement.
21. No Public Dedication. Nothing contained herein shall be deemed to be a gift or
dedication of any portion of the Summercreek Land or Acorn Land for the benefit of the
general public or for any public purposes whatsoever, it being the intention of the parties hereto
that this Agreement shall be strictly limited to the purposes herein expressed.
[Signatures appear on the following page.]
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
IN WITNESS WHEREOF, Summercreek Owner and Acorn Owner have executed this
Agreement as of the day, month and year first above written.
SUMMERCREEK OWNER:
UKIAH SUMMERCREEK ASSOCIATES,
A CALIFORNIA LIMITED PARTNERSHIP,
a California limited partnership
By: Johnson & Johnson Investments, LLC,
a California limited liability company,
its Co-General Partner
By:
Daniel Johnson
Manager
By: Roope, LLC, an Idaho limited liability company,
its Co-General Partner
By:
Caleb Roope
Manager
By: Central Valley Coalition for Affordable Housing,
a California nonprofit public benefit corporation,
its Managing General Partner
By:
Christina Alley
CEO
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
ACORN OWNER:
UKIAH GOBBI STREET LP,
a California limited partnership
By: Ukiah Gobbi Street LLC,
a California limited liability company,
its Administrative General Partner
By: Danco Communities,
a California corporation,
its Manager
By:
Daniel Johnson
President
By: Community Revitalization and Development
Corporation, a California nonprofit public
benefit corporation, its Managing General Partner
By:
David Rutledge
President
In
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that
document.
STATE OF CALIFORNIA )
COUNTY OF )
On before me, , a Notary
Public, personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ics), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public
(SEAL)
] l
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza
A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that
document.
STATE OF CALIFORNIA )
COUNTY OF )
On before me, , a Notary
Public, personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument, and acknowledged to me that he/she/they executed the same in his.`here'their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
Witness my hand and official seal.
Notary Public
(SEAL)
17.
Easement and Shared Use Agreement
Ukiah Acorn Valley Plaza