HomeMy WebLinkAbout2009 CON CDC (DEED OF TRUST) San Diego Habitat for HumanityDOC # 2009-0 7 017
RECORDING REQUESTED BY
STEWART TITLE OF CALIFORNIA
Recording Requested By:
J;i!
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
And When Recorded Mail To:
Community Development Commission
of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
7924
III
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JUL 08, 2009 8:00 AM
OFFICIAL RECORDS
SAN DIECO COUNTY RECORDERS OFFICE
DA..ID L BUTLER. COUNTY RECORDER
FEES: 0.00
G.A:
PAGES: 10
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This document is exempt from the payment of a recording fee pursuant to Government Code Section
6103.
DEED OF TRUST
THIS DEED OF TRUST is made this Iclilday of June, 2009, between San Diego Habitat
for Humanity, Inc., a California nonprofit corporation, whose address is 10222 San Diego Mission
Road, San Diego, CA 92108 ("Trustor"), Stewart Title Company ("Trustee"); and the Community
Development Commission of the City of National City ("Beneficiary"), whose address is 1243
National City Boulevard, National City, California 91950-4397;
TRUSTOR HEREBY irrevocably grants, transfers, and assigns to Trustee, in trust, with
power of sale, all that property in the City of National City, County of San Diego, State of California,
described as:
(See Legal Description - Exhibit "A")
FOR THE PURPOSE OF SECURING:
(a) Payment of the indebtedness evidenced by that certain Promissory Note of even date herewith
executed by Trustor, in the principal sum of Eight Hundred Thirty -Five Thousand and No/100
Dollars ($835,000.00), and any renewal, extension, or modification of the promissory note (the
"Note");
(b) Any additional sums and interest that may hereafter be loaned to the then record owner of the
Property by Beneficiary, when evidenced by another note or notes reciting that it or they are so
secured;
(c) That certain Development and Disposition Agreement of even date herewith executed by
Trustor and Beneficiary, and any renewal, amendment, extension, or modification of the
Development and Disposition Agreement (the "DDA");
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(d) That certain Agreement Affecting Real Property of even date herewith executed by Trustor
and Beneficiary, and any renewal, amendment, extension, or modificationof the Agreement
Affecting Real Property (the "AARP");
(e) The performance of each agreement contained in this Deed of Trust.
A. TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
1. Maintenance and Repair. To keep the Property in good condition and repair; to pay when due
all claims for labor performed and materials furnished for the Property; to comply with all laws
affecting the Property or requiring any alterations or improvements to be made on the Property; not
to commit or permit waste of the Property; not to commit, suffer, or permit any act upon the Property
in violation of law; and to cultivate. maintain the landscaping, and do all other acts that from the
character or use of the Property may be reasonably necessary.
2. Fire Insurance. To provide, maintain, and deliver to Beneficiary fire insurance satisfactory to
and with loss payable to Beneficiary as its interest may appear. The amount collected under any fire
or other insurance policy may be applied by Beneficiary upon any indebtedness secured by this Deed
of Trust and in any order determined by Beneficiary, or at the option of Beneficiary the entire amount
so collected or any part of that amount may be released to Trustor, except that if the proceeds of the
award for any taking or injury to the Property or the amount of such proceeds plus funds provided by
Trustor is sufficient to allow for the repair and restoration of the Property and such repair and/or
restoration is physically and legally possible, then the Trustor shall use the proceeds of the award to
timely effectuate such repair and/or restoration. Upon receipt of such proceeds, Beneficiary may
hold the proceeds as further security, or apply or release them in the same manner and with the same
effect as provided in this Deed of Trust for the disposition of proceeds of fire or other insurance.
This application or release shall not cure or waive any default or notice of default under this Deed of
Trust or invalidate any act done pursuant to such a notice.
3. Defense of Security. To appear in and defend any action or proceeding purporting to affect
the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; and to pay all
costs and expenses, including cost of evidence of title and attorneys' 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 of Trust.
4. Payment of Liens and Taxes. To pay, at least ten (10) days before delinquency, all taxes and
assessments affecting the Property, including assessments on appurtenant water stock, all
encumbrances, charges. and liens, with interest, on the Property or any part of the Property, which
appear to be prior or superior to this Deed of Trust; and all costs, fees, and expenses of this Trust. if
Trustor fails to make any payment or to do any act as provided in this Deed of Trust, then
Beneficiary or Trustee may (but is not obligated to) make the payment or do the act in the required
manner and to the extent deemed necessary by Beneficiary or Trustee to protect the security of this
Deed of Trust. The performance by Beneficiary or Trustee of such an act shall not require notice to
or demand upon Trustor and shall not release Trustor from any obligation under this Deed of Trust.
Beneficiary or Trustee shall also have the following related rights and powers: to enter upon the
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Property for the foregoing purposes; to appear in and defend any action or proceeding purporting to
affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; to pay,
purchase, contest, or compromise any encumbrance, charge, or lien that in the judgment of either
appears to be prior or superior to this Deed of Trust; to employ counsel; and to pay necessary
expenses and costs, including attorneys' fees.
5. Reimbursement of Costs. To pay immediately and without demand all sums expended by
Beneficiary or Trustee pursuant to this Deed of Trust, with interest from date of expenditure at the
amount allowed by law in effect at the date of this Deed of Trust, and to pay any reasonable amount
demanded by Beneficiary (up to the maximum allowed by law at the time of the demand) for any
beneficiary statement requested by Trustor or any other beneficiary of a Deed of Trust encumbering
the Property regarding the obligation secured by this Deed of Trust.
6. Use. That Trustor will not permit or suffer the use of any of the Property for any purpose
other than the use for which the same was intended at the time this Deed of Trust was executed.
7. Incorporation of DDA and AARP. That the DDA and AARP are incorporated herein by
reference and made a part of this Deed of Trust.
8. Performance of Other Obligations. To perform, in a timely manner, each agreement and
covenant by and between Trustor on any and all notes, loans and deeds of trust that are senior and/or
junior to this Deed of Trust. A default in any of these obligations, beyond any applicable cure
period, shall constitute a default under this Deed of Trust.
B. THE PARTIES AGREE THAT:
9. Waiver of Late Payments. By accepting payment of any sum secured by this Deed of Trust
after its due date, Beneficiary does not waive its right either to require prompt payment when due of
all other sums so secured or to declare default for failure to pay any indebtedness secured by this
Deed of Trust.
10. Trustee's Powers. Upon written request of Beneficiary and presentation of this Deed of
Trust, Trustee may (a) reconvey all or any part of the Property; (b) consent to the making and
recording, or either, of any map or plat of all or any part of the Property; (c) join in granting any
easement on the Property; or (d) join in or consent to any extension agreement or any agreement
subordinating the lien, encumbrance, or charge of this Deed of Trust. Trustee need not provide
Trustor with notice before taking any of the foregoing actions, and shall not be liable for the proper
performance of the act. The exercise by Trustee of any of the foregoing powers shall not affect the
personal liability of any person for payment of the indebtedness secured by this Deed of Trust, or the
lien of this Deed of Trust on the remaining property as security for the repayment of the full amount
secured by this Deed of Trust.
11. Partial Reconveyance. Beneficiary shall cause Trustee to partially reconvey this Deed of
Trust, with respect to each Affordable Unit, upon the last to occur of: (i) the sale of the Affordable
Unit; (ii) the Low -Income Household's execution of the First -Time Homebuyer Note; (iii) the
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recordation against the individual Affordable Unit of the Resale Restriction; and (iv) the recordation
against the individual Affordable Unit of the deed of trust securing the First -Time Homebuyer Note
and the Resale Restriction.
12. Full Reconveyance. Upon written request of Beneficiary stating that all obligations secured
by this Deed of Trust have been performed in full, surrender of this Deed of Trust, any notes secured
by this Deed of Trust to the Trustee for cancellation and retention, and payment of Trustee's fees and
charges, Trustee shall reconvey, without warranty. the Property then subject to this Deed of Trust.
Absent manifest error, the recitals in the reconveyance shall be conclusive proof of the truthfulness
of the recitals. The grantee in the reconveyance may be described as "the person or persons legally
entitled thereto." Five years after issuance of the full reconveyance, Trustee may destroy the Note
and this Deed of Trust, unless directed in the request to retain them.
13. Assignment of Rents. 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 the Property, but reserves the right, prior to any default by Trustor in
payment of any indebtedness secured by this Deed of Trust or in the performance of any agreement
under this Deed of Trust, to collect and retain these rents, issues, and profits as they become due and
payable. Upon any such default for which cure has not been commenced within thirty (30) days and
thereafter completed with diligence, Beneficiary may, without notice and without regard to the
adequacy of the security for the indebtedness secured by this Deed of Trust, either personally or by
agent or court -appointed receiver, do the following: enter upon and take possession of the Property
or any part of the Property; sue for or otherwise collect all rents, issues, and profits, including those
past due and unpaid; and apply these rents, issues, and profits, less costs and expenses of operation
and. collection (including reasonable attorneys' fees), upon any indebtedness secured by this Deed of
Trust, in any order determined by Beneficiary. The exercise of the foregoing rights by Beneficiary
shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act
done pursuant to such a notice.
14. Default in Foreclosure. Upon default by Trustor in the payment of any indebtedness secured
by this Deed of Trust or in the performance of any obligation under this Deed of Trust, the DDA
and/or the AARP for which cure has not been commenced within thirty (30) days and thereafter
completed with diligence, Beneficiary may declare all sums secured by this Deed of Trust
immediately due and payable by delivering to Trustee a written declaration of default and demand for
sale and a written notice of default and election to sell the Property. Trustee shall cause the notice of
default and election to sell to be recorded. Beneficiary also shall deposit with Trustee this Deed of
Trust, a copy of the Agreement, and all other documents evidencing obligations secured by this Deed
of Trust. After the required time period has lapsed following the recordation of the notice of default,
and after notice of sale has been given as required by law, Trustee, without demand on Trustor, shall
sell the Property at the time and place specified in the notice of sale, either as a whole or in separate
parcels, and in any order determined by Trustee, at public auction to the highest bidder for cash in
lawful money of the United States, payable at the time of sale. Trustee may postpone sale of all or
any portion of the Property by public announcement at the time and place of sale, and from time to
time thereafter may postpone the sale by public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser at the auction its deed conveying the Property
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sold. but without any covenant or warranty, express or implied. Absent manifest error, the recital in
the deed of any matter or fact shall be conclusive proof of the truthfulness of the recital. Any person,
including Trustor, Trustee, or Beneficiary, may purchase at the sale. After deducting all costs, fees,
and expenses of Trustee and Beneficiary under this paragraph, including costs of procuring evidence
of title incurred in connection with sale, Trustee shall apply the proceeds of sale to payment of: all
sums expended under the terms of this Deed of Trust, not then repaid, with accrued interest at the
amount allowed by law in effect at the date of this Deed of Trust; all other sums then secured by this
Deed of Trust; and the remainder, if any, to the person or persons legally entitled to the remaining
proceeds.
15. Further Encumbrances. Should the undersigned agree to or actually sell, convey. transfer, or
dispose of, or further encumber the Property, or any part of it, or any interest in it (each, a
"Transfer"), without first obtaining the written consent of the Beneficiary, then all obligations
secured by the Deed of Trust may be declared due and payable, at the option of the Beneficiary,
unless such Transfer is permitted under Section 603 of the DDA. Consent to one transaction of this
type will not constitute a waiver of the right to acquire consent to future or successive transactions.
16. General Provisions. This Deed of Trust applies to, inures to the benefit of, and binds all
parties to this Deed of Trust and their heirs, legatees, devisees, administrators, executors, successors,
and assigns. The term `Beneficiary" shall mean the Community Development Commission of the
City of National City, and the heirs, legatees, devisees, administrators, executors, and assigns of any
such person. In this Deed, whenever the context so requires, the masculine gender includes the
feminine and/or neuter, and the singular number includes the plural.
17. Acceptance by Trustee. Trustee accepts this Trust when this Deed, duly executed and ack-
nowledged, is made a public record as provided by law. Trustee is not obligated to notify any party
to this Deed of Trust of pending sale under any other deed of trust or of any action or proceeding in
which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
18. Substitution of Trustees. Beneficiary, or any successor in ownership of any indebtedness
secured by this Deed of Trust, may from time to time, by written instrument, substitute a successor or
successors to any Trustee named in or acting under this Deed of Trust. The substitution instrument
shall contain the name of the original Trustor, Trustee, and Beneficiary under this Deed of Trust, the
book and page where this Deed is recorded, and the name and address of the new Trustee. When
executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the
county or counties where the Property is situated, the substitution instrument shall be conclusive
proof of proper substitution of the successor Trustee or Trustees. Any successor Trustee or Trustees
shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers,
and duties.
19. Cumulative Powers and Remedies. The powers and remedies conferred in this Deed of Trust
are concurrent and cumulative to all other rights and remedies provided in this Deed of Trust or
given by law. These powers and remedies may be exercised singly, successively, or together, and as
often as deemed necessary.
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20. Conclusiveness of Recitals. The recitals contained in any reconveyance, trustee's deed, or
any other instrument executed by the Trustee from time to time under the authority of this Deed of
Trust or in the exercise of its powers or the performance of its duties under this Deed of Trust, shall
be conclusive evidence of their truth, whether stated as specific and particular facts, or in general
statements or conclusions absent manifest error. Further, the recitals shall be binding and conclusive
upon the Trustor, its heirs, executors, administrators, successors, and assigns, and all other persons.
21. Attorneys' Fees. If any action is brought for the foreclosure of this Deed of Trust or for the
enforcement of any provision of this Deed of Trust (whether or not suit is filed), Trustor agrees to
pay all costs and expenses of Beneficiary and Trustee, including reasonable attorneys' fees; and these
sums shall be secured by this Deed of Trust.
22. Co -trustees. If two or more persons are designated as Trustees in this Deed of Trust, any, or
all, power granted in this Deed of Trust to Trustee may be exercised by any of those persons, if the
other person or persons are unable, for any reason, to act. Any recital of this inability in any
instrument executed by any of those persons shall be conclusive against Trustor and Trustor's heirs
and assigns.
23. Request for Notices of Default and Sale. In accordance with Section 2924b of the California
Civil Code. request is hereby made that a copy of any Notice of Default and a copy of any Notice of
Sale under that Deed of Trust executed by the Trustor concerning this Property be mailed to:
Community Development Commission of the City of National City
1243 National City Boulevard
National City, CA 91950-4397
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the
address contained in this recorded request. If your address changes, a new request must be
recorded.
The undersigned Trustor requests that a copy of any notice of default and of any notice of sale under
this Deed of Trust be mailed to Trustor at the address of Trustor set forth above.
24. Inspections. Trustor shall permit Beneficiary and its agents or representatives, to inspect the
Property at any and all reasonable times, with at least 24 hours advance notice. Inspections shall be
conducted so as not to interfere with the tenants' use and enjoyment of the Property.
25. Hazardous Materials Defined. For purposes of this Deed of Trust, "Hazardous Materials"
mean and include any hazardous, toxic or dangerous waste, substance or material including, without
limitation, flammable explosives, radioactive materials, asbestos, hazardous wastes, toxic substances
and any materials or substances defined as hazardous materials, hazardous substances or toxic
substances in (or for purposes of) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), as amended (42 U.S.C. §9601, et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. §1801, et seq.), the Resource Conservation and Recovery Act (42
U.S.C. §6901, et seq.), and those substances defined as hazardous wastes in §25117 of the California
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Health and Safety Code or as hazardous substances in §25316 of the California Health and Safety
Code or in any regulations promulgated under either such law, any so-called "Superfund" or
"Superlien" law. or any other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect.
26. Trustor's Hazardous Materials Representations and Warranties and Indemnity. In addition to
the general and specific representations, covenants and warranties set forth in the Deed of Trust or
otherwise, Trustor represents, covenants and warrants, with respect to Hazardous Materials, as
follows:
(a) Neither Trustor nor, to the best knowledge of Trustor, any other person, has ever
caused or permitted any Hazardous Materials to be manufactured, placed, held, located or disposed
of on, under or at the Property or any part thereof, and neither the Property nor any part thereof, or
any property adjacent thereto, has ever been used (whether by the Trustor or, to the best knowledge
of the Trustor, by any other person) as a manufacturing site, dump site or storage site (whether
permanent or temporary) for any Hazardous Materials;
(b) Trustor hereby agrees to indemnify Beneficiary, its officers, employees, contractors
and agents, and hold Beneficiary, its officers, employees, contractors and agents harmless from and
against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary, its officers,
employees, contractors or agents for, with respect to, or as a direct or indirect result of, the presence
or use, generation, storage, release, threatened release or disposal of Hazardous Materials on or under
the Property or the escape, seepage, leakage, spillage, discharge, emission or release of any
Hazardous Materials from the Property (including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under CERCLA, any so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct
concerning any Hazardous Materials) regardless of whether or not caused by or within the control of
Trustor. Notwithstanding the foregoing, Trustor's obligations under this section shall not apply to
any losses, liabilities, damages, injuries, costs, expenses, or claims which arise out of or relate to
Hazardous Materials which (1) were present, generated, released, or stored on the Property on or
before the date that Trustor acquired title to the Property or (2) are generated, released or stored on
the Property after the date that Beneficiary takes possession thereof.
(c) Trustor has not received any notice of (i) the happening of any event involving the
use, spillage, discharge, or cleanup of any Hazardous Materials ("Hazardous Discharge") affecting
Trustor or the Property or (ii) any complaint, order, citation or notice with regard to air emissions,
water discharges, noise emissions or any other environmental, health or safety matter affecting
Trustor or the Property ("Environmental Complaint") from any person or entity, including, without
limitation, the United. States Environmental Protection Agency ("EPA"). If Trustor receives any
such notice after the date hereof, then Trustor will give, within seven (7) business days thereafter,
oral and written notice of same to Beneficiary.
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(d) Without limitation of Beneficiary's rights under this Deed of Trust, Beneficiary shall
have the right, but not the obligation, to enter onto the Property or to take such other actions as it
deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise
deal with, any such Hazardous Materials or Environmental Complaint upon its receipt of any notice
from any person or entity, including without limitation, the EPA, asserting the existence of any
Hazardous Materials or an Environmental Complaint on or pertaining to the Property which, if true,
could result in an order, suit or other action against Trustor affecting any part of the Property by any
governmental agency or otherwise which, in the sole opinion of Beneficiary, could jeopardize its
security under this Deed of Trust. All reasonable costs and expenses incurred by Beneficiary in the
exercise of any such rights shall be secured by this Deed of Trust and shall be payable by Trustor
upon demand together with interest thereon at a rate equal to the highest rate payable under the note
secured hereby.
(e) The foregoing representation, covenants, indemnities and warranties shall be
continuing and shall be true and correct for the period from the date hereof to the release of this Deed
of Trust (whether by payment of the indebtedness secured hereby or foreclosure or action in lieu
thereof), and these representations, covenants, indemnities and warranties shall survive such release.
27. Choice of Law. This Deed of Trust shall be governed by and construed in accordance with
the laws of the State of California.
28. Authority to Sign. All individuals signing this Deed of Trust for a party which is a
corporation, limited liability company, partnership or other legalentity, or signing under a power of
attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to the
Beneficiary that they have the necessary capacity and authority to act for, sign and bind the
respective entity or principal on whose behalf they are signing.
TRUSTOR:
San Diego Habitat for Humanity, Inc., a California nonprofit corporation
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Michael Malone, Executive Director
VA- i-.,or\-'2--
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ACKNOWLEDGMENT
State of California )
County of San Diego )
7932
On � N 1 c1 � ` , 20f1 before me,C�'R 1.,.)N ) Y�ivt e�>�-1 �` t�tN , R N o w y
personally appeared t -t t E At of who proved to me on theP1/4Z1 1C-
basis of satisfactory evidence to be the person yvhose na sJYart-subscribed to the within
instrument and acknowled ed to me tha&s1;e4they,executed the same ilk authorized
capacity and that b his er/their signature'(s.),on the instrument the person(-s),,or the entity upon
behalf of which the person 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.
Signatur� fa
Q0Q-Q-ri\Cf\--)(Seal)
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EXHIBIT "A"
LEGAL DESCRIPTION
ORDER NO.: 126747
ESCROW NO.: 1820 G Ave
7933
The land referred to herein is situated in the State of California County of San Diego, and described as
follows:
Lots 16, 17, 18, 19 and 20 in Block 3 of the subdivision of W.S. Bullis, of Ten Acre Lot Fourteen, in
quarter section 153, of the Rancho De La Nacion, in the City of National City, County of San Diego,
State of California, according to Map thereof No. 201, filed in the office of the county recorder of said
San Diego County, May 27, 1881.
Also that portion of the westerly 10 feet of "G" Avenue adjoining the above -described property on the
east as vacated.
File Number: 126747 Exhibit A Legal Description Till
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