HomeMy WebLinkAboutCB Ranch Enterprises; 2009-04-08;a
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR CONSTRUCTION OF ARMSTRONG FLOWER FIELD IMPROVEMENTS FROM
CUP 98-20/CDP 98-91 INCLUDED UNDER
CIP 3811 PALOMAR AIRPORT ROAD WIDENING
Between
CITY OF CARLSBAD,
A MUNICIPALITY
AND
CB RANCH ENTERPRISES,
A CALIFORNIA CORPORATION
3-23-09
-1 -
AGREEMENT FOR REIMBURSEMENT OF COSTS
FOR CONSTRUCTION OF ARMSTRONG FLOWER FIELD IMPROVEMENTS FROM CUP 98-
20/CDP 98-91 INCLUDED UNDER CIP 3811 PALOMAR AIRPORT ROAD WIDENING
This Agreement for Reimbursement of Costs for Construction of Armstrong Flower Field
Improvements from CUP 98-20/CDP 98-91 included under CIP 3811 Palomar Airport Road
Widening, dated as of A/dAjUt o , 2009 ("Agreement") is made at San Diego
County, California, by and between the CITY OF CARLSBAD ("City"), and CB RANCH
ENTERPRISES, A CALIFORNIA CORPORATION, ("Developer") with reference to the following
recitals:
RECITALS
A. The City has approved Capital Improvement Program ("CIP") 3811 Palomar
Airport Road Widening, hereafter referred to as "City Improvements", which includes
construction of an additional through lane and an overhead sign structure in the Project Area.
B. All references in this Agreement to the "Project Area" shall represent the
westbound side of Palomar Airport Road ("PAR") between Paseo Del Norte ("PDN") and
Armada Drive.
C. Developer has obtained approval for CUP 98-20/CDP 98-91, which includes a
deceleration lane on the north side of PAR between PDN and Armada Drive, a driveway from
the deceleration lane, parking lot improvements, and a traffic signal at the corner of PDN and
the first street (unnamed) north of the intersection of PDN and PAR. All references in this
Agreement to "Developer's Improvements" shall represent the before-mentioned improvements.
D. Developer has dedicated additional public right-of-way by way of a Grant Deed
of Easement, Doc # 1999-0645232, for the construction of an additional through lane on PAR in
the Project Area.
E. The City is preparing Plans and Specifications (City of Carlsbad Drawing No.
455-8) for the City Improvements and a portion of the Developer's Improvements (the "Plans
and Specifications"). The Developer's Improvements contained in the Plans and Specifications
include the construction of the deceleration lane.
F. The Developer has employed Daedalus Design Group to prepare landscape and
irrigation plans for Developer's Improvements. The City has been working with Daedalus
Design Group to include said plans as part of the City Improvements.
G. A probable construction cost estimate including only those bid items to be
allocated to Developer consistent with the Plans and Specifications, has been prepared by the
City and is attached hereto as Exhibit "A" (the "Probable Construction Cost Estimate"). The
Probable Construction Cost Estimate coincides with the bid form. Each bid item is either paid
for by the Developer, or shared by both the City and Developer. The construction cost of each
bid item shall be allocated based on the quantity or in the proportion indicated in the Probable
Construction Cost Estimate. The parties acknowledge that the Probable Construction Cost
3-23-09
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Estimate is for estimating purposes and for indentifying the respective party's responsibilities.
The Developer's and City's proportionate responsibility for the identified bid items will remain
unchanged, but the true amount of reimbursement will be based on the actual bids received by
the Contractor who is defined in Paragraph 3(b), below.
H. The Developer still needs to obtain a Local Coastal Plan Amendment ("LCPA") from
Coastal Commission for the driveway in to the Flower Fields parking lot.
I. A letter from the City addressed to the Developer dated March 26, 2008
identifies verbal agreements between the City and Developer. This Agreement supersedes the
above letter and all other previous reimbursement agreements related to the construction of the
City's Improvements.
NOW, THEREFORE, the City and Developer agree as follows:
1. Recitals. The Recitals, above, are true and correct and are incorporated herein by
this reference.
2. General Developer Obligations.
(a) The Developer shall grant an easement to the City for additional right-of-
way to include the deceleration lane. The easement area shall be a 3'
offset from the back of proposed sidewalk, 2' offset around the Filterra
planter boxes, and 2' offset around the concrete foundation for the
overhead sign structure. Developer shall be responsible for preparing the
grant of easement for the required right-of-way, except for the legal
description of the easement area which shall be prepared by the City.
(b) The Developer shall reimburse the City for the bid items shown on the
Probable Construction Cost Estimate for the quantity or in the proportion
indicated in the Construction Contract, as defined in Paragraph 4, below.
With respect to the bid item described on Exhibit "A" as "Construction
Contingency," the calculation of Developer's proportion of fifteen percent
(15%) shall be based on the sum of only the bid items shown on Exhibit
"A."
(c) The Developer shall allow the Contractor to stage construction equipment
and allow site access in the Project Area as depicted in the drawing titled
"Work Limits" attached hereto as Exhibit "B."
(d) A fill site located in Lot 3 of the Carlsbad Ranch owned by an affiliate of
Developer has been identified as being able to receive clean earth
material from the Project Area. It is expected that approximately 3,000
cubic yards of material will need to be exported to the identified fill site.
The Developer and its affiliate shall allow access to the fill site and shall
permit earth hauling on the route. The haul route and fill site are
identified in the drawing titled "Haul Route and Fill Site" attached hereto
as Exhibit "C." The Developer or its affiliate shall take ownership of the
fill site and the materials it contains.
(e) The Developer shall take ownership of and be responsible for maintaining
the landscaping installed by the City after landscaping is installed.
Maintaining the landscaping involves, but may not be limited to trimming,
3-23-09
-3-
irrigating, fertilizing, and replanting if plants die outside the construction
warranty time period of 12 months from date of "Notice of Completion"
issued to the City's Contractor. Maintenance of the landscaping shall be
performed to allow plant growth. The landscaping includes the plant
species planted in the Filterra planter box.
(f) The Developer shall take ownership of and be responsible for maintaining
the irrigation system after construction is complete. Maintenance of the
irrigation system includes, but may not be limited to replacing valves,
adjusting sprinkler heads, and repairing leaks. The irrigation system shall
be setup to support the plants in the Filterra planter box and maintenance
of such irrigation system shall be included among Developer's obligations
hereunder.
(g) In the event the LCPA is not obtained by the time the Contractor is ready
to construct the driveway, then the (i) driveway will be deleted from the
scope of work as a change order, (ii) pavement, curb and gutter, and
sidewalk will be installed as planned, but a barricade will be installed at
the end of the deceleration lane, (iii) the "Flower Fields" sign will not be
installed on the overhead sign structure and (iv) the deceleration lane will
be striped, all consistent with Exhibit "D" attached hereto. Although this
change order, if it occurs, is anticipated to have a minor financial impact,
it shall be the Developer's financial responsibility.
(h) In the event the LCPA is obtained prior to the expiration of the approval
described in Paragraph 2(b) above, as such approval may be extended
and the work shown in Exhibit "D" has been completed by the City, then
Developer shall have the right to construct the driveway, subject to
Developer's obligation to re-stripe the deceleration lane and install the
"Flower Fields" sign on the overhead sign structure, consistent with the
Plans and Specifications prior to the change order described in
Paragraph 2(g), above.
(i) In addition to the amounts described in Paragraph 2(b) above, Developer
shall reimburse the City for any other costs, losses, or liabilities otherwise
associated with the construction of the Developer Improvements,
including but not limited to attorney's fees arising from any dispute
concerning construction of Developer's Improvements. Any costs, losses
or liabilities to be reimbursed from Developer to the City pursuant to this
subparagraph (i) and arising after the final payment due under Paragraph
4, below, shall be paid by Developer within thirty (30) days after the City
delivers notice thereof to Developer.
3. General City Obligations.
(a) The City shall prepare the Plans and Specifications, City of Carlsbad
Drawing No. 455-8, for the City Improvements and a portion of the
Developer's Improvements under CUP 98-20/CDP 98-91.
(b) The City shall solicit the project for Bids. The project shall be awarded by
the City and the Contractor chosen by the City (the "Contractor") shall be
employed by the City.
3-23-09
-4-
(c) In the event of any change order under the contract between the City and
the Contractor (the "Construction Contract") affecting Developer's
Improvements and which the City intends to accept, the City shall give
Developer written notice of the proposed change order and the
opportunity to review and comment at least seven (7) business days prior
to the City's authorization or approval of the change order, if it is
determined by the City that such a review by the Developer will not
impact the Contractor's construction schedule or impact the project cost
for either party.
(e) The City shall pay fully for the installation of landscaping and irrigation
system.
(f) The City shall install a "Flower Field" sign on the overhead sign structure.
(g) The City shall maintain the Filterra planter box structures, metal grates,
media contained therein, and the PVC under drain pipe.
(h) In the event the LCPA is not obtained or the driveway is not constructed
prior to the expiration of the approval described in Paragraph 2(b) above,
as such approval may be extended, then Palomar Airport Road shall
have an extended right turn pocket, a portion of which was to have been
the deceleration lane for the driveway, and the City shall make such
changes to the improvements within the right-of way as necessary, at its
sole cost and expense. Upon any such changes to the improvements,
the grant of easement described in Paragraph 2(a) shall be modified
accordingly.
4. Payment of Reimbursement Amount.
(a) The City shall promptly provide Developer with written notice (the
"Contract Award Notice") upon the City Council's award of the
Construction Contract. The Contract Award Notice shall set forth the
"Reimbursement Amount" which shall be an amount equal to the sum of
Developer's portion of the bid items described in Paragraph 2(b) above
and based on the Construction Contract. The Contract Award Notice
shall also provide in reasonable detail supporting information with respect
to the calculation of the Reimbursement Amount.
(b) Developer shall pay the City the Reimbursement Amount, plus interest
thereon as follows:
(1) The Reimbursement Amount shall be paid in twelve (12) equal
monthly installments commencing on April 1, 2010, and continuing
thereafter on the first day of each calendar month until March 1, 2011.
Each such installment shall be a "Monthly Payment."
(2) Interest shall accrue on the unpaid Reimbursement Amount at the
Interest Rate, as defined below, from the date of the first payment made
to the Contractor by the City under the Construction Contract. All interest
accrued as of the last day of the calendar month immediately preceding
3-23-09
-5-
each Monthly Payment shall be due and payable with such Monthly
Payment.
(3) The Interest Rate shall be defined to mean the greater of (i) six
percent (6%) per annum, or (ii) the average yield of the City's investment
portfolio determined monthly for the applicable period. Not less than
fourteen (14) days before each Monthly Payment due date, the City shall
provide Developer with a written statement of such Monthly Payment,
which statement shall reasonably set forth the supporting calculation of
such payment and the Monthly Payment due date.
(c) Notwithstanding the provisions of Paragraph 4(b) above, in the event the
Developer's Improvements are financed through any other source of
funds specifically identified for this project, Developer shall pay the
Reimbursement Amount to the City, plus any accrued and unpaid interest
thereon, to the City within fourteen (14) days after Developer receives
said funds.
(d) Within forty-five (45) days after the City files a notice of completion in the
Office of the County Recorder for San Diego County (the "Recorder's
Office") for the City Improvements, the City shall perform a final audit and
reconciliation of all costs of construction for improvements described in
the Plans and Specifications and shall provide a copy thereof to
Developer. The Reimbursement Amount, and interest accrual, shall be
adjusted accordingly. If Developer has paid the City pursuant to
Paragraph 4(c) and has underpaid the amount due hereunder, then
Developer shall promptly deliver the amount of such underpayment to the
City. If Developer has overpaid the amount due hereunder, then the City
shall promptly deliver the amount of such overpayment to Developer.
(e) Developer's obligation to pay the Reimbursement Amount shall be
secured by a deed of trust in the form of Exhibit "E" attached hereto and
incorporated herein by this reference (the "Deed of Trust"), which shall be
executed and delivered by Developer to the City in recordable form within
five (5) days after Developer receives the Contract Award Notice. The
City shall promptly record the Deed of Trust in the Recorder's Office.
The Deed of Trust shall be released upon payment by Developer of the
Reimbursement Amount, and any interest thereon, pursuant to the
provisions of this Agreement. The City agrees that, in order to release
the Deed of Trust, it shall promptly upon request by Developer execute
and deliver to Developer, or the trustee named in the Deed of Trust, the
appropriate documents in the appropriate form as necessary to reconvey
the Deed of Trust to Developer.
5. Disputes/Claims. If a dispute should arise regarding the performance or interpretation
of this Agreement, the following procedure shall be used to resolve any question of fact
or interpretation not informally resolved by the parties. Such questions, if they become
identified as a part of a dispute among persons operating under the provisions of this
Agreement shall be reduced to writing by the principal of Developer or the Director.
A copy of such documented dispute shall be forwarded to both parties involved along
with recommended methods of resolution which would be of benefit to both parties. The
Director, or principal, upon receipt, shall reply to the letter, including a recommended
method of resolution within ten (10) days. If the recommended resolution is
unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to
3-23-09
-6-
the City Council for their resolution through the office of the City Manager. The City
Council may, but is not obligated to resolve the dispute. If the City Council considers
the dispute, and directs a solution, the action of the City Council shall be binding upon
the parties involved, although nothing in this procedure shall prohibit the parties from
seeking remedies available to them at law.
6. Assignment of Contract. The Developer shall not assign this contract or any part
thereof or any monies due thereunder without the prior written consent of the City, which
approval shall not be unreasonably withheld.
7. Notices. Unless otherwise specifically provided herein, all notices, demands or other
communications given hereunder shall be in writing and shall be deemed to have been
duly delivered upon personal delivery, or by Federal Express (or similar reputable
express delivery service), or by facsimile transmission with back-up copy mailed the
same day, or as of the second business day after mailing by United States Certified
Mail, return receipt requested, postage prepaid, addressed as shown below. Notices
required to be given to Developer shall be addressed as follows:
Carltas Company
Attention: Chris Calkins
5600 Avenida Encinas #100
Carlsbad, CA 92008
Telephone: (760) 431-5600 ext. 112
FAX: (760) 431-9020
Notices to City shall be delivered to the following:
CITY OF CARLSBAD
Attention: Public Works Director
1635 Faraday Avenue
Carlsbad, CA 92008
Telephone: (760) 602-2730
FAX: (760)602-8562
Each party shall notify the other immediately of any changes of address that would
require any notice delivered hereunder to be directed to another address.
8. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute one and the same instrument.
9. Governing Law and Venue. This Agreement shall be interpreted and enforced under
the laws of the State of California, and venue shall reside in San Diego County,
California.
10. Complete Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter contained herein, and supersedes all
negotiations, discussions, and prior drafts with respect to this subject matter.
11. Amendment. This Agreement may be amended by a written instrument executed by
City and Developer except that no amendment regarding the provisions for
3-23-09
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reimbursement to Developer shall be valid unless executed by both the Developer and
the City.
12. Term. This Agreement shall be effective as of the date first above written, and shall
extend for the life of the project.
13. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights
upon any individual or entity which is not a party hereto, and the parties hereto expressly
disclaim any such third-party benefit.
14. Severabilitv. The invalidity or unenforceability of any provision of this Agreement, as
determined by a court of competent jurisdiction, shall in no way affect the validity or
enforceability of any other provision hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agj^ement to be executed as of
the date first above written.
CB RANCH ENTERPR
a CALIFORNIA ION
CITY
Its: President
title of i
OOD City Clerk
Its: Secretary
(Proper notarial acknowledgment of execution by Contractor must be attached.
Chairman, president or vice-president and secretary, assistant secretary, CFO or
assistant treasurer must sign for corporations. 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, General Counsel
•Beetrt General Counsel
3-23-09
-8-
ACKNOWLEDGMENT
State of California
County of
On fr/Uf£K 1b i 0.0(7^ __ before
(insert name and title of the officer)
personally appeared Q\cc^pf>)pes £nCAVcms cA'Vi. Lixbg^K A. E^k. _ ,
who proved to me on the basis of satisfactory evidence to be the person{£J>/hose name(s))t9/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/hef/their authorized capacitydej^, and that by^io/hor/their signature^) on the instrument the
persor^, or the entity upon behalf of which the person(s}>e.cted, 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. T a «in-
UNw W
_ )6»1 I
WITNESS my hand and official seal.
Signature
MONICA ,
Commttiton* 1753681
Notary Public - California i
ton Dl«go County ^
MyComm.inpHiJUl16.20n f
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WHI-N RECORDED MAIL TO:
SPACE ABOVE THIS LINE EOR RECORDER'S USE
CORPORATION DEED OF TRUST WITH ASSIGNMENT OF RENTS
This DEED OF TRUST, made , 20_, between CB RANCH ENTERPRISES, herein called
TRUSTOR, whose address is 5600 Avenida Encinas, Suite 100, Carlsbad, CA 92008,
FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation, herein called TRUSTEE, and the CITY OF
CARLSBAD, herein called BENEFICIARY,
WITNESSETH: That Trustor grants to Trustee in trust, with power of sale, that property in the City of Carlsbad, County of San
Diego, State of California, described as:
LOT 1 OF CARLSBAD TRACT NO. 94-09, CARLSBAD RANCH UNIT NO. 1 IN THE CITY OF CARLSBAD, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13357, FILED IN THE OFFICE OF THE
COUNTY RECORDER OF SAN DIEGO COUNTY SEPTEMBER 11, 1996.
together with the rents, issues and profits thereof, subject, however, to the right, power and authority hereinafter given to and conferred upon
Beneficiary to collect and apply such rents, issues and profits for the purpose of securing (1) payment of the sum of $201,814.00 according
to the terms of that certain Agreement for Reimbursement of Costs for Construction of Armstrong Flower Field Improvements from CUP 98-
20/CDP 98-91 included under CIP 3811 Palomar Airport Road Widening of even date herewith between Beneficiary and Trustor, (2) the
performance of each agreement of Trustor incorporated by reference or contained herein and (3) payment of additional sums and interest
thereon which may hereafter be loaned to Trustor, or his successors or assigns, when evidenced by a promissory note or notes reciting that
they are secured by this Deed of Trust.
To protect the security of this Deed of Trust, and with respect to the property above described, Trustor expressly makes each and all of the
agreements, and adopts and agrees to perform and be bound by each and all of the terms and provisions set forth in subdivision A, and it is
mutually agreed that each and all of the terms and provisions set forth in subdivision B of the fictitious deed of trust recorded in Orange
County August 17, 1964. and in all other counties August 18, 1964, in the book and at the page of Official Records in the office of the county
recorder of the county where said property is located, noted below opposite the name of such county, namely
BEST
COPY
(CONTINUED ON NEXT PAGE)
\e
COUNTY
Alameda
Alpine
Amador
Butle
Calaveras
Colusa
Contra Cosla
Del Norte
El Dorado
Fresno
Glenn
Humboldt
Imperial
Inyo
Kern
BOOK
1288
3
133
1330
185
323
4684
101
704
5052
469
801
1189
165
3756
PAGE
556
130-31
438
513
338
391
1
549
635
623
76
83
701
672
690
COUNTY
Kings
Lake
Lassen
Los Angeles
Madera
fvlarin
Mariposa
Mendocino
Merced
Modoc
Mono
Monterey
Napa
Nevada
Orange
BOOK
858
437
192
T-3878
911
1849
90
667
1660
191
69
357
704
363
7182
PAGE
713
110
367
874
136
122
453
99
753
93
302
239
742
94
18
COUNTY
Placer
Plumas
Riverside
Sacramento
San Benito
San Bernardino
San Francisco
San Joaquin
San Luis Obispo
San Mateo
Santa Barbara
Santa Clara
Santa Cruz
Shasta
San Diego
BOOK
1028
166
3778
5039
300
6213
A-804
2855
1311
4778
2065
6626
1638
800
SERIES
PAGE
379
1307
347
124
405
768
596
283
137
175
881
664
607
633
5 Book 1964,
COUNTY
Sierra
Siskiyou
Solano
Sonoma
Stanislaus
Sutler
Tehama
Trinity
Tulare
Tuolumne
Ventura
Yolo
Yuba
Page 149774
BOOK
38
506
1287
2067
1970
655
457
108
2530
177
2607
769
398
PAGE
187
762
621
427
56
585
183
595
108
160
237
16
693
shall inure to and bind the parties hereto, with respect to the property above described. Said agreements, terms and
provisions contained in said subdivisions A and B, (identical in all counties, and printed on pages 3 and 4 hereof) are by the
within reference thereto, incorporated herein and made a part of this Deed of Trust for all purposes as fully as if set forth at
length herein, and Beneficiary may charge for a statement regarding the obligation secured hereby, provided the charge
therefor does not exceed the maximum allowed by law.
The undersigned Trustor, requests that a copy of any notice of default and any notice of sale hereunder be mailed to him al
his address hereinbefore set forth.
Trustor:
CB Ranch Enterprises, a California corporation
By:
Christopher C. Calkins, President
By:_
Lizbeth A. Ecke. Secretary
On
proved lo me on die baMs of salisfacioiA evidence lo be ihc person(s)
\\hose nnme(s) is/arc subscribed lo the uilhin instrument and
acknowledged lo me thai he she ihe\ executed Ihe same in his/herlheir
authorized capacity fies). and lha! b\ his her then sijHialure(s) on Ihe
instrument Ihe persoii(s) or Ihe enlily upon behalf of which Ihe
person(s) acted, executed die instrument, i ccrtilv under PHNALTV
OK PKR.IUKY under die laws ol die Stale of ( aliforma dial Ihc
foreuomu paragraph is irue and eorreci.
COPY
(CONTINUED ON NEXT PAGE)
DO NOT RECORD
The following is a copy of Subdivisions A and B of the fictitious Deed of Trust recorded in each county in California as stated in the foregoing Deed of Trust
and incorporated by reference in said Deed of Trust as being a part thereof as if set lorth at length therein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or restore promptly and in good
and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and
materials furnished therefor; to comply with all laws affecting said property or requiring any alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not excluding the general
2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary. The amount collected under
any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured hereby and in such order as Beneficiary may determine, or at
option of Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice
3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee: and
to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed
4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including assessments on appurtenant water
stock; when due, all encumbrances, charges and liens with interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs.
fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any acl as herein provided, then Beneficiary or Trustee, but without obligation so to do and without
notice to or demand upon Trustor and without releasing Trustor from any obligation hereof, may: make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes; appear in
and defend any action or proceeding purporting to affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears lo be prior or superior hereto; and, in exercising any such powers, pay
necessary expenses, employ counsel and pay his reasonable fees
5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement provided for by law in effect at the date hereof regarding the obligation secured hereby
any amount demanded by the Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded
B. It is mutually agreed:
1) That any award of damages in connection with any condemnation for public use of or injury to said property or any part thereof is hereby
assigned and shall be paid to Beneficiary who may apply or release such moneys received by him in the same manner and with the same effect as above
provided for disposition of proceeds of fire or other insurance
2) That by accepting payment of any sum secured hereby after its due date Beneficiary does not waive his right either to require prompt payment
when due of all other sums so secured or to declare default for failure so lo pay
3) That at any time or from time to time without liability therefor and without notice, upon written request of Beneficiary and presentation of this
Deed and said note for endorsement, and without affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee may
reconvey any part of said property; consent to the making of any map or plat thereof join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien or charge hereof
4) That upon written request of beneficiary staling that all sums secured hereby have been paid, and upon surrender of this Deed and said note to
Trustee for cancellation and retention or other disposition as Trustee in its sole discretion may choose and upon payment of its fees, Trustee shall reconvey.
without warranty, the property then held hereunder The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof The Grantee in such reconveyance may be described as "the person or persons legally entitled thereto "
5) That as additional security Trustor hereby gives to and confers upon Beneficiary the right power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said properly reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement hereunder to collect and retain such rents, issues and profits as they become due and payable. Upon
any such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and lake possession of said property or any part thereof, in his own name sue for
or otherwise colled such rents, issues and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured hereby and in such order as Beneficiary may determine The entering upon
and taking possession of said property the collection of such rents issues and profits and the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any acl done pursuant to such notice
6) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any agreement hereunder. Beneficiary may
declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of default and demand for sale and of written
notice of default and of election to cause to be sold said property, which notice Trustee shall cause to be filed for record Beneficiary also shall deposit with
Trustee this Deed, said note and all documents evidencing expenditures secured hereby
After the lapse of such lime as may then be required by law following the recordation of said notice of default, and notice of sale having been given
as then required by law. Trustee, wilhoul demand on Trustor shall sell said properly at the time and place fixed by it in said notice of sale, either as a whole or
in separate parcels, and in such order as it may determine at public auction to the highest bidder for cash in lawful money of the United States, payable at
time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at such lime and place of sale, and from time to time
thereafter may postpone such sale by public announcement at the lime fixed by the preceding postponement Trustee shall deliver to such purchaser its deed
conveying the property so sold, but without any covenant or warranty express or implied The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof Any person including Trustor. Trustee or Beneficiary as hereinafter defined, may purchase at such sale
COPY
(CONTINUED ON NEXT PAGE) i^.i n
l';i.w ; "I I
2.0
After deducting all costs, fees and expenses of Trustee and of this Trust, including costs of evidence of title in connection with sale, Trustee shall
apply the proceeds of sale to payment of: all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in
effect at the date hereof; all other sums then secured hereby; and the remainder, if any. to the person or persons legally entitled thereto.
7) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a
successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and
recorded in the office of the recorder of the county or counties where said property is situated shall be conclusive proof of proper substitution of such
successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said
instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder. the book and page where this Deed is recorded and the name
and address of the new Trustee.
8) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees, administrators, executors,
successors and assigns. The term Beneficiary shall mean the owner and holder, including pledgees, of the note secured hereby, whether or not named as
Beneficiary herein. In this Deed, whenever the context so requires the masculine gender includes the feminine and/or neuter, and the singular number
includes the plural.
9) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of Trust or ol any action or proceeding in which Trustor, Beneficiary or Trustee shall
be a party unless brought by Trustee.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO FIRST AMERICAN TITLE INSURANCE COMPANY, TRUSTEE:
The undersigned is the legal owner and holder of the note or notes and ol all other indebtedness secured by the foregoing Deed of Trust Said note
or notes, together with all other indebtedness secured by said Deed of Trust, have been fully paid and satisfied; and you are hereby requested and directed,
on payment to you of any sums owing to you under the terms of said Deed of Trust to cancel said note or notes above mentioned, and all other evidences ol
indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to reconvey. without warranty, to the parties
designated by the terms of said Deed of Trust, all the estate now held by you under the same
Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do Not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made.
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