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HomeMy WebLinkAbout; Catholic Charities; 2012-0656152; PropertyDOCtt 2012-065G Ill I BECORDED AT THE REQUEST OF CHICAGO TITLE COMPANY-COMMERCIAL SERVICES RECORDD^Q REQUESTED BY AND) WHEN RECORDED MAIL TO: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, Califomia 92008-1989 52 OCT 25, 2012 8:00 AM inn OFFICIAL RECORDS 1 U U O 2 SAN DIEGO COUNTY RECORDER'S OFFICE Emest J. Dronenburg, Jr., COUNTY RECORDER FEES: 0.00 WAYS" 2 DA: 1 PAGES: 10 space above this line 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 ("Deed of Trust") made as of this 18th day of September, 2012, among Catholic Charities Diocese of San Diego ("Borrower(s)") as Trustor, and Lawyers* Title Companv ("Trustee"), and the City of Carlsbad, a municipal corporation ("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 real property located in the City of Carlsbad, State of Califomia, described in the attached Exhibit A ("Legal Description of Real Property") TOGETHER with all the improvements now or hereafter erected on the Real Property described in Exhibit A, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the Real Property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust ("Property"); and TOGETHER with 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 Real 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 fumished 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 therefore, whether or not the same are, or shall be attached to said building or buildings in any manner; and 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; 144\105\442067.1 AGP 06-16 - La Posada de Guadalupe de Carlsbad TO SECURE to the City the repayment of the sums evidenced by a promissory note in the amount of Two-Million Dollars ($2,000,000) executed by the Borrower to the City as of the date of this Deed of Tmst ("Note"); 10083 TO SECURE to the City the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Deed of Tmst; and the performance of the covenants and agreements of the 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 or the Security the failure of which would adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS: 1. Borrower's Estate. That the Borrower is lawftilly seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Tmst, the Security is encumbered only by: (a) that deed of tmst executed by the Borrower in connection with a loan made to the Borrower by j or its successors and assigns (the "First Lender"), dated Lender Note"), to assist in the improvement of the Property. The Borrower agrees to warrant and defend generally the title to the Security 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 Security. (As used in this Deed of Trust, the term "First Lender" shall include all successors and assigns of the First Lender.) 2. Repayment of Loan. The Borrower will promptly repay, when due, the principal, interest and other sums required by the Note, including all principal and interest on the loan . The Note contains the following provisions conceming repayment of the loan under certain conditions: Limitations on Assumption of Note. The Borrower acknowledges that this Note is given in connection with the development of the Property as part of the Agricultural Conversion Mitigation Fee program of City for purchase and improvement of agricultural lands for continued agricultural production, or for the provision of research activities or ancillary uses necessary for the continued production of agriculture and/or aquaculture in the city's coastal zone, including, but not limited to, farm worker housing. In the event this Note is assumed , the assuming party or parties shall execute a new note, which shall be in an amount equal to the principal and Contingent Interest owed by Borrower, a new deed of trust agreement with a restarted term in forms approved by the City. 3. First Lender Loan. The Borrower will observe and perform all of the covenants and agreements of the First Lender Note, First Lender Deed of Tmst, and related First Lender loan documents. 4. Charges; Liens. The Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority over this Deed of Trust, by the Borrower making any payment, when due, directly to the payee thereof. The Borrower will promptly fumish to the City all notices of amounts due under this paragraph, and in the event the Borrower makes payment directly, the Borrower will promptly discharge any lien which has priority over this Deed of CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad Tmst; provided, that the Borrower will not be required to discharge the lien of the First Lender Deed of ^ ^ Tmst or any other lien described in this paragraph so long as the Borrower will agree in writing to the JL U 0 8 4 payment ofthe obligation secured by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof 5. Insurance. The Borrower will keep the Security insured with a standard fire and extended coverage insurance policy in at least an amount equal to the replacement cost of the Security, but in no event less than the amount necessary to prevent the Borrower from becoming a co-insurer under the terms of the policy. The insurance carrier providing this insurance shall be licensed to do business in the State of Califomia and be chosen by the Borrower subject to approval by the City; provided, that such approval will not be withheld if the insurer is also approved by the First Lender or successors thereto. All insurance policies and renewals thereof will be in a form acceptable to the City and will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of the First Lender Note and the City as their interests 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 the Borrower shall promptly ftimish to the City, or its designated agent, the original insurance policies or certificates oflnsurance, all renewal notices and all receipts of paid premiums. In the event of loss, the Borrower will 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 ten (10) days advance notice of cancellation of any insurance policies required under this section. Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject to the rights of the First Lender, will be applied to restoration or repair of the Security damaged, provided such restoration or repair is economically feasible and the Security of this Deed of Tmst is not thereby impaired. 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, subject to the rights of the First Lender, to repay the Note and all sums secured by this Deed of Tmst, with the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights of the First Lender, to collect and apply the insurance proceeds at the City's option either to restoration or repair of the Security or to repay the Note and all sums secured by this Deed of Tmst. If the Security is acquired by the City, all right, title and interest of the Borrower in and to any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender. 6. Preservation and Maintenance of Securitv. The Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. If there arises a condition in contravention of this section, and if the Borrower has not cured such condition within thirty (30) days after receiving a City notice of such a condition, then in addition to any other rights available to the City, the City shall have the right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Security to recover its cost of curing. CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad 7. Protection of the City's Security. If the Borrower fails to perform the covenants and 10085 agreements contained in this Deed of Trust, the First Lender Note, the First Lender Deed of Tmst, or if any action or proceeding is commenced which materially affects the City's interest in the Security, including, but not limited to, default under the First Lender Deed of Tmst, the First Lender Note or any other deed of tmst 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 such appearances, disburse such sums and take such action as it determines necessary to protect the City's interest, including but not limited to, disbursement of reasonable attomey's fees and entry upon the Security to make repairs. Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will become an indebtedness ofthe Borrower secured by this Deed of Trust. Unless the Borrower and City agree in writing to other terms of payment, such amount will be payable upon notice from the City to the Borrower requesting payment thereof, and will bear interest from the date of disbursement at the lesser of ten percent (10%) or the highest rate permissible under applicable law. Nothing contained in this paragraph will require the City to incur any expense or take any action hereunder. 8. Inspection. The City may make or cause to be made reasonable entries upon and inspections of the Security; provided that the City will give the Borrower reasonable notice of inspection. 9. Forbearance by the Citv 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, nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. The procurement of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of the City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 10. 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 uses of a housing shelter and to maintenance of the Property. "Hazardous Substances" shall mean those substances defined as toxic or hazardous substances or hazardous waste under any 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. "Environmental Law" shall mean all federal and state of Califomia laws that relate to health, safety or environmental protection. Borrower shall promptly give City written notice of any investigation, claim, demand, lawsuit or other action by any govemmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower leams, or is notified by any govemmental 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. CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad 11. Remedies Cumulative. All remedies provided in this Deed of Tmst are distinct and 10086 cumulative to any other right or remedy under this Deed of Tmst or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City and the Borrower subject to the provisions of this Deed of Tmst. 13. Joint and Several Liability. All covenants and agreements of the Borrower shall be joint and several. 14. Notice. Except for any notice required under applicable law to be given in another manner, all notices required in this Deed of Tmst shall be sent by certified mail, retum 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 on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was retumed as undeliverable as follows: To the Owner: Catholic Charities Diocese of San Diego 349 Cedar Street San Diego, CA 92101-3197 To the City: City of Carlsbad Community & Economic Development Department 1635 Faraday Avenue Carlsbad, CA 92008-7314 Attn: Community & Economic Development Director The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 15. Controlling Law. This Deed of Tmst shall be constmed in accordance with and be govemed by the laws of the State of Califomia. 16. Invalid Provisions. If any one or more of the provisions contained in this Deed of Tmst, or the Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions, and this Deed of Tmst and the Note shall be constmed as if such invalid, illegal or unenforceable provision had never been contained in this Deed of Tmst or the Note. 17. Captions. The captions and headings in this Deed of Tmst are for convenience only and are not to be used to interpret or define the provisions hereof 18. Nonliabilitv for Negligence, Loss, or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and the City is solely that of an Borrower and the administrators of Agricultural Conversion Mitigation Fee program, and that the City does not undertake or assume any responsibility for or duty to Borrower to select, review, inspect, supervise, pass judgment CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad on, or inform Borrower of the quality, adequacy or suitability of the Security or any other matter. The 10 0 8 T City owes no duty of care to protect Borrower against negligent, faulty, inadequate or defective building or construction or any condition of the Security and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against the City for any loss, damage or other matter arising out of or resulting from any condition of the Security and will hold City harmless from any liability, loss or damage for these things. 19. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, expenses and reasonable attomey's fees that the City may incur as a direct or indirect consequence of: a. Borrower's failure to perform any obligations as and when required by the Note, and this Deed of Tmst; or b. the failure at any time of any of Borrower's representations or warranties to be tme and correct. This provision shall survive the term of this Agreement. 20. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in the Note, or this Deed of Tmst, including, but not limited to, the covenants to pay, when due, any sums secured by this Deed of Tmst, the City, prior to acceleration, will send, in the manner set forth in Section 14 of this Deed of Trust, notice to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a date, not less than thirty (30) days from the date the notice is effective as set forth in Section 14 of this Deed of Tmst, by which such breach, if curable, is to be cured; and (4) if the breach is curable, that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the Security. Notice shall be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused or the date the notice was retumed as undeliverable. The notice will also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of the Borrower to acceleration and sale. If the breach is not curable or is not cured on or before the date specified in the notice, the City, at the City's option, may: (a) declare all of the sums secured by this Deed of Tmst to be immediately due and payable without further demand and may invoke the power of sale and any other remedies permitted by Califomia 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 Security and take possession thereof (or any part thereof) and of any of the Security, 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 Security, 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 breach hereunder or invalidate any act done in response to such breach and, notwithstanding the continuance in possession of the Security, the City shall be entitled to exercise every right provided for in this Deed of Tmst, 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 Deed of Trust 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 Califomia Civil Code Sections 2924, et seq., as amended from time to time; or (e) exercise all other rights and remedies provided herein, in the instmments by which the Borrower 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. CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the 10088 remedies provided in this paragraph, including, but not limited to, reasonable attomey's fees. 21. Acceleration. Upon the occurrence of a default under the Note, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City shall have the right to declare the full amount of the principal along with any interest 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 Deed of Tmst. Nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of the City's right to require prompt payment of any remaining principal and interest owed. 22. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Deed of Tmst, the Borrower will have the right to have any proceedings begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of the Security pursuant to the power of sale contained in this Deed of Tmst or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all sums, if any, which would be then due under this Deed of Trust and no acceleration under the Note has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower contained in the Note or this Deed of Tmst; (c) the Borrower pays all reasonable expenses incurred by City and the Trustee in enforcing the covenants and agreements of the Borrower contained in the Note, or this Deed of Tmst, and in enforcing the City's and the Trustee's remedies, including, but not limited to, reasonable attomey's fees; and (d) the Borrower takes such action as City may reasonably require to assure that the lien of this Deed of Trust, City's interest in the Security and the Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Tmst and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 23. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the Note to the Tmstee. The Tmstee will reconvey the Security 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. 24. Substitute Tmstee. The City, at the City's option, may from time to time remove the Tmstee and appoint a successor tmstee to any trustee appointed hereunder. The successor tmstee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 25 IN WITNESS WHEREOF, the Borrower has executed this Deed Of Trust as of the date first written above. // // // // // // // // // // // // // // 7 CA 5/12/2011 AGP 06-16 - La Posada de Guadalupe de Carlsbad Catholic Charities, Diocese of San Diego By: n ^ 10089 (]6orrower Signature) Sister RayMonda DuVall, Executive Director (Print Name) Date (Borrower Signature) (Print Name) Date (Proper Notarial Acknowledgement of Execution by Borrower(s) Must Be Attached) CA 5/12/2011 10090 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT } State of California County of _ On before me, Date Here Insert Name and Title of the Officer personally appeared J)i7g7g /Cjiy/r^C/^OA <DO {f/U.L Name(s) of Signer(s) U8EIMTAR.HEflflEfM Conwiittioii # 1984138 Notary Public - CaNfornia San Oitgo County aComm.E)tpiratJyl31.20161 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person^ whose name(^) is/a^e subscribed to the within instrument and acknowledged to me that Ja€/she/tl^ executed the same in JstS/her/tbeir authorized capacityCieS), and that by>Ti^/her/lh^r signature(^») on the instrument the person(il), or the entity upon behalf of which the person(;gO 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. Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Docunnent Date: Number of Pages: Slgner(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer's Name: • Individual • Corporate Officer — Title(s): • Partner — • Limited • General • Attorney in Fact • Trustee • Guardian or Conservator • Other: RIGHTTHUMBPRINT OF SIGNER Top of thumb here Signer Is Representing:. ©2007 National Notary Association • 9350 De Soto Ave., RO. Box 2402 • Chatswortti, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1 -800-876-6827 AGP 06-16 - La Posada de Guadalupe de Carlsbad EXHIBITA ^gpg^ Address: 2476-2478 Impala Drive, Carlsbad, California 92008 Assessor Parcel No.: 209-041-28 LEGAL DESCRIPTION OF PROPERTY 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 20,1977 AS FILE/PAGE NO. 77-401720 OF OFFICIAL RECORDS. CA 5/12/2011