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HomeMy WebLinkAbout; |CATHOLIC CHARITIES|DIOCESE OF SAN DIEOG|; 2010-0458858; PropertyDOCtt 2010-0458858 RECORDING REQUESTED BY: Carlsbad City Clerk's Office , WHEN RECORDED MAIL TO: City Clerk ))p City of Carlsbad r\t 1200 Carlsbad Village Drive *'"'. Carlsbad, CA 92008 SEP 01, 2010 1:20 PM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L BUTLER, COUNTY RECORDER FEES: 0.00 WAYS: 2 DA: 1 PAGES: 11 ,x SPACE ABOVE FOR RECORDER'S USE NOTE TO BORROWER: This Deed of Trust Contains Provisions Prohibiting Assumptions DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT ("Security Instrument") is made on the /o? day of /4-CiGU£>"f 2010, among the Cathlic Charities, Diocese of San Diego, a non-profit corporation, ( Borrower") as trustor, and Lawyers Title Company, a California corporation ("Trustee"), and the City of Carlsbad, a municipal corporation ("the City"), as beneficiary. The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the property located in the City of Carlsbad, State of California, which has the address of 2472-78 Impala Drive, Carlsbad, California, and is further described in the attached Exhibit "A" (the "Property"). TOGETHER WITH all easements, appurtenances, and fixtures now or hereafter a part of the property, all of which, including replacement and additions thereto, shall be deemed to be and remain a part of the property covered by this Security Instrument; and, TO SECURE to the City the repayment of the sums evidenced by a promissory note executed by the Borrower to the City dated 3(^.tJ6 (I , 2010, the principal sum of one hundred fifty thousand dollars ($150,000) (the "Note"). TO SECURE to the city the payment of all other sums, with interest thereon, advanced in accordance herewith to protect this Security Instrumentl; and the performance of the covenants and agreements of Borrower herein contained; and, TO SECURE the performance of any obligations of Borrower in any other agreements with respect to the financing of the Property, the failure of which would adversely affect Beneficiary whether or not Beneficiary is party to such agreements. City Attorney Approved 10/31/08 BORROWER AND THE CITY COVENANT AND AGREE AS FOLLOWS: 1. Borrower's Estate. That Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Property, that other than another security instrument benefiting the City, the Property is unencumbered. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City's interest in the Property. 2. Payment of Principal and Prepayment. Borrower shall promptly pay when due the principal of the debt evidenced by the Note. The Note contains the following provisions concerning payment of the loan under certain conditions: No Assumptions of Note. Borrower acknowledges that the Note is given in connection with predevelopment activities related to rebuilding of La Posada de Guadalupe homeless shelter. Consequently, the Note is not assumable by transferees of the Property, but is due and payable in full on the date the Property is sold or transferred. 3. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property, which may attain priority over this Security Instrument. Borrower shall pay these obligations on time directly to the person owed payment. Borrower shall promptly furnish to the City all notices of amounts to be paid under this Section. If Borrower makes these payments directly, Borrower shall promptly furnish to the City receipts evidencing the payments. Borrower shall promptly discharge any other lien which shall have attained priority over this Security Instrument unless Borrower: (1) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to the City; (2) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the City's opinion operate to prevent the enforcement of the lien; or (3) secures from the holder of the lien an agreement satisfactory to the City subordinating the lien to this Security Instrument. If the City determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, the City may give Borrower a notice identifying the lien. Borrower shall satisfy such lien or take one or more of the actions set forth above within 10 days of the giving of notice. 4. Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire, hazards included within the term "extended coverage" and any other hazards, including floods or flooding, for which the City requires insurance. This insurance shall be maintained in an amount equal to the replacement cost of the Property and for the periods that the City requires. The insurance carrier providing the insurance shall be licensed to do business in the State of California and be chosen by Borrower subject to the City's approval which shall not be unreasonably withheld. If Borrower fails to maintain coverage described above, the City may, at the City's option, obtain coverage to protect the City's rights in the Property in accordance with Section 6. The City shall be named as additional insured on any such policies of insurance. All insurance policies and renewals shall be acceptable to the City and shall include a standard mortgagee clause with standard lender's endorsement in favor of the Deed of Trust and 2 City Attorney Approved 10/31/08 the City as their interest may appear and in a form acceptable to the City. The City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and Borrower shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices, and receipts of paid premiums. In the event of loss, Borrower shall give prompt notice to the insurance carrier and the City or its designated agent. The City or its designated agent may make proof of loss if not made promptly by the Borrower. The City shall receive thirty days advance notice of cancellation of any insurance policies required under this Section. Unless the City and Borrower otherwise agree in writing, insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the City's security is not thereby impaired. If the restoration or repair is not economically feasible or the City's security of this Deed of Trust would be impaired, the insurance proceeds shall be applied to repay the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from the City or its designated agent that the insurance carrier has offered to settle a claim, then the City or its designated agent may collect the insurance proceeds. City may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, whether or not then due. The 30-day period will begin when the notice is given. 5. Occupancy, Preservation, Maintenance and Protection of the Property. Borrower shall obtain all necessary permits required to occupy, establish, and use the Property as a homeless shelter and maintain the property consistent with the requirements of such permits. Borrower shall not destroy, damage or impair the Property, allow the Property to deteriorate, or commit waste on the Property. Borrower shall be in breach if any forfeiture action or proceeding, whether civil or criminal, is begun that in the City's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or the City's security interest. Borrower may cure such a breach and reinstate, as provided in Section 18, by causing the action or proceeding to be dismissed with a ruling that, in the City's good faith determination, precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or the City's security interest. 6. Protection of the City's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument or if any action or proceeding is commenced which may materially affect the City's rights in the Property, including but limited to breach under any other deed of trust encumbering the property, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower, may make appearances, disburse such sums and take such actions at it deems necessary to protect the value of the Property and the City's rights in the Property. The City's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorneys' fees and entering on the Property to make repairs. Any amounts disbursed by the City pursuant to this Section shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and the City agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the lesser of ten percent (10%) or the highest rate permissible under applicable law and shall be payable, 3 City Attorney Approved 10/31/08 with interest, upon notice from the City to Borrower requesting payment. Nothing contained in this Section will require the City to incur any expense or take any action hereunder. 7. Inspection. The City or its agent may make reasonable entries upon and inspections of the Property. The City shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. 8. Forbearance By the City Not a Waiver. Any forbearance by the City in exercising any right or remedy will not be a waiver of the exercise of any such right or remedy. 9. Remedies Cumulative. All remedies provided in this Security Instrument are distinct and cumulative to any other right or remedy under this Security Instrument or any other document, or afforded by law or equity, and may be exercised concurrently, independently, or successfully. 10. Successors and Assigns Bound; Joint and Several Liability. The covenants and agreements of this Security Instrument shall bind and benefit the respective successors and assigns of the City and Borrower, subject to the provisions of this Security Instrument. Borrower's covenants and agreements shall be joint and several. 11. Notices. Except for any notice required under applicable law to be given in another manner, any notice to Borrower provided for in this Security Instrument shall be sent certified mail, return receipt requested or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained, and shall be deemed to be effective as of the date shown of the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable. Notices shall be directed as follows: Borrower: Cathlic Charities, Diocese of San Diego 349 Cedar Street San Diego, CA92101 Attn: Executive Director City of Carlsbad: Housing and Redevelopment Department 2965 Roosevelt Street Suite B Carlsbad CA 92010-2389 Attn: Housing and Redevelopment Director The parties may subsequently change addresses by providing written notice of the change in address to the other party in accordance with this Section. 12. Governing Law. This Security Instrument shall be construed in accordance with and be governed by the laws of the State of California. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are 4 City Attorney Approved 10/31/08 declared to be severable. 13. Severability. In the event that any provision or clause contained in this Security Instrument or the Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or clause shall be deemed severable from the remaining provision, and this Security Instrument and the Note shall be construed as if such invalid, illegal, be severable. 14. Captions. The captions and headings in this Security Instrument are for convenience only and are not to be used to interpret or define the provisions hereof. 15. Default; Remedies. Upon the Borrower's breach on any covenant or agreement of the Borrower in this Security Instrument, including, but not limited to, the covenants to pay, when due, any sums secured by this deed of Trust, the City, prior to acceleration shall give notice to Borrower specifying: (1) the breach; (2) if the breach is curable; (3) the action required to cure the breach; (4) a date, not less than 30 days from the date the notice is given to Borrower by which the breach must be cured; and (5) if the breach is curable, failure to cure the breach on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the breach is not cured by the Borrower on or before the date specified in the notice, then the City, at its option may: (a) require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the power of sale and any other remedies permitted by California law; (b) 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 Property, in its own name or in the name of the 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 Property shall not cure or waive any breach hereunder or invalidate any act done in response to such breach and notwithstanding the continuance in possession of the Property, the City shall be entitled to exercise every right provided for in this Security Instrument or by law upon occurrence of any uncured breach, including the right to exercise the power of sale; (c) commence an action to foreclose this Security Instrument as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale, pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et seq.. as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which the Borrower acquires title to any Property, 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. The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Section, including, but not limited to, reasonable attorney's fees. 16. Acceleration. Upon the occurrence of a default under the Note, or this Security Instrument, the City shall have the right to declare the full amount of the principal under the Note immediately due and payable. Any failure by the City to pursue its legal and equitable remedies upon default shall not constitute a waiver of the City's right to declare a default and exercise all of its rights under the Note and this Security Instrument. Nor shall acceptance by the City of any 5 City Attorney Approved 10/31/08 payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and shared appreciation owed. 17. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Security Instrument, Borrower shall have the right to have any proceedings begun by the City to enforce this Security Instrument discontinued at any time prior to the earlier of: (1) 5 days before sale of the Property pursuant to any power of sale contained in this Security Instrument; or (2) entry of a judgment enforcing this Security Instrument if Borrower: (a) pays the City all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred; (b) cures any breach of any other covenants or agreements of the Borrower contained in this Security Instrument; (c) pays all reasonable expenses incurred in enforcing the covenants and agreements of this Security Instrument, including, but not limited to, reasonable attorneys' fees; and (d) takes such action as the City may reasonably require to assure that the lien of this Security Instrument, the City's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unimpaired. Upon such payment and cure by Borrower, this Security Instrument and the obligations secured hereby shall remain in full force and in effect as if no acceleration had occurred. 18. Reconveyance. Upon payment of all sums secured by this Security Instrument, or upon forgiveness of the debt pursuant to Paragraph 9 and/or other provisions of the Note, the City will surrender this Security Instrument and the Note to the Trustee. The Trustee will reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons will pay all costs of recordation, if any. 19. Substitute Trustee. The City, at its option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee shall succeed to all the title, power and duties conferred upon Trustee herein and by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give the City written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. Prior to taking any such remedial action, however, Borrower shall notify the City that such remedial action is necessary and shall obtain the City's prior written consent for such remedial action. As used in this Section, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this 6 City Attorney Approved 10/31 /08 Section, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. 21. Subordination to Senior Financing. This Deed of Trust and the provisions contained herein shall be subordinate to any senior financing approved by the beneficiary. City Attorney Approved 10/31 /08 Executed by Borrower this BORROWER: Cathlic Charities. Diocese of San Diego (name of Borrower) By: day of _, 2010. CITY OF CARLSBAD, a municipal corporation of the State of California r (print name/title) By: & (sign here) ATTEST: <f} -ej>uJ-j QdL,i / City Clerk(print name/title1) (Proper notarial acknowledgment of execution by Subrecipient must be attached?.^ Agreement must be signed by one corporate officer from each of the following ,,,, *GroupA. Chairman, President, or Vice-President **GroupB. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney BY: /I/MJ1ML AssisrantCity Attorney City Attorney Approved 10/31/08 State of California County of JPl^ til&Gti //.before me,&•., Notary to me on to the_ Public, personally appeared 5jf#E% fffiiftotiOA JWVML t /hJ*J the basis of satisfactory evidence to be the person(s) whose name(s) within instrument and acknowledged to me that •he/9he(ffie^ executed the same in \ authorized capacity(ies), and that by-h«/h«r/<Eeir3signature(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. Signature ***** **"*SMDtafoCM*Comm. . (Seal) State of California County ic ^ On Public, p&sonally appeared efore me,,^»UlWu fl. rAt . Notary ww proved to me on the basis of satisfactory evidence to tie the person^ whose name($ is/ajpe' subscribed to the within instrument and acknowledged to me that h^she/thpy executed the same in h/£/her/th«fr authorized capacity(ie^), and that by h^/her/tiVir signature(sfl on the instrument the person(§£ or the entity upon behalf of which the person^ acted, executea 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. Signatu: 1010\13\530682.1 (Seal) SHERRY A. Commission* )727064 Notary Public - California I Coun«V GOVERNMENT CODE 27361.7 I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of the Notary: Liberata R. Herrera Commission Number: 1807960 Date Commission Expires: Jul 31. 2012 County Where Bond is Filed: San Diego Manufacturer or Vendor Number: NNA1 (Located on both sides of the notary seal border) Signature: QCJ^V ^^V City of Carlsbad /O Place of Execution: Office of the City Clerk/City of Carlsbad Date: 8/20/10 Rec. Form #R10 (Rev.7/96) EXHIBIT "A" LEGAL PROPERTY DESCRIPTION Parcel 2 of Parcel Map No. 15247, in the City of Carlsbad, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County, May 25, 1988 as File/Page No. 88-247094 of Official Records. Excepting therefrom all oil, mineral, gas and other hydrocarbon substances below a depth of 500.00 feet from surface of said land, but without the right of surface entry as reserved by Palomar Vista, Ltd., a limited partnership in deed recorded September 30, 1977 as File/Page No. 77-401720 of Official Records.