HomeMy WebLinkAboutDeed of Trust and Security Agreement RECORDLNG REQUESTED BY:
. FIRST AMERICAN TITLE c0MrANY JULIE RODEWALD LO
Complimentary Recording Requested San Luis Obispo County— Clerk/Recorder 3/18 /2008
Pursuant To Govemment Code
Recorded at the request of 8:00 AM
Sections 6103 And 27383 First American Title Company
When Recorded Mail To: D 0 C # : 2008013143 Titles: 3 Pages: 10 Taxes 0.00
City of Arroyo Arroyo Box Grande, C 93421 I Others 0.00
Attn: City Clerk
(� PAID $0.00
2141 ' A- DEED OF TRUST
AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ( "Deed of Trust" made this
c't atiN, day of at , , 2008, among the Trustor, Charles and Gavle
Leaf ( "Owner "), whose address is 579 Camino Mercado # 417, and City of Arroyo Grande -
( "Trustee "), and the City of Arroyo Grande, a municipal (the "City ") as Beneficiary.
The Owner, in consideration of the promises herein recited and the trust herein created,
irrevocably grants, transfers, conveys and assigns to Trustee, in trust, with power of sale, the
property located in the City of Arroyo Grande, San Luis Obispo County, State of Califomia,
described in the attached Exhibit A and more commonly known as Ocean Oaks Condominiums.
TOGETHER with all the improvements now or hereafter erected on the property,
and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the
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; 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
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 furnished 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;
TO SECURE to the City the performance of the covenants and agreements of Owner
contained in that certain Buyer's Occupancy and Resale Agreement with Option to Purchase
executed by and between the Owner and the City of even date herewith (the "Resale
Agreement ") and to secure the payment of Excess Sales Proceeds (as defined in the Resale
Agreement) that may become due by Owner to City.
TO SECURE the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of Owner herein contained.
OWNER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Owner's Estate. That Owner is lawfully seized of the estate hereby conveyed and has the
right to grant and convey the Security, that other than this Deed of Trust, the Security is
encumbered only by: (a) that deed of trust executed by Owner in connection with a loan made to
Owner by 1,. )\s 1r_ re R4^1 A7 A . (the "First Lender "), and
1, 7 A (second Lender "), securing a promissory note executed
by Owner in favor of the First Lender ( "First Lender Note ") and Second Lender ( "Second Lender
Note "), to assist in the purchase of the Property and (b) the Resale Agreement. Owner 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 and the term
"Second Lender" shall include all successors and assigns of the Second Lender).
2. Payment of Excess Sales Proceeds. Owner will promptly pay to the City, when and if
due pursuant to the Resale Agreement, the Excess Sales Proceeds (as defined in the Resale
Agreement).
3. Resale Agreement. Owner will observe and perform all of the covenants and agreements
of the Resale Agreement.
4. Charges; Liens. Owner 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
Owner making any payment, when due, directly to the payee thereof. Upon request by the City,
Owner will promptly furnish to the City all notices of amounts due under this paragraph. In the
event Owner makes payment directly, Owner will promptly discharge any lien which has priority
over this Deed of Trust; provided, that Owner will not be required to discharge the lien of the
Deed of Trust securing the First or Second Lender Note (the "First Lender Deed of Trust" or
"Second Lender Deed of Trust ") or any other lien described in this paragraph so long as Owner
will agree in writing to the payment of the 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. Hazard Insurance. Owner will keep the Security insured by a standard all risk property
insurance policy equal to the replacement value of the Security (adjusted every five (5) years by
appraisal, if requested by the City). If the Security is located in a flood plain, Owner shall also
flood insurance. The insurance carrier providing this insurance shall be licensed to do business
in the State of California and be chosen by Owner subject to approval by the City.
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 and Second 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 Owner shall promptly furnish to the City, or its
designated agent, the original insurance policies or certificates of insurance, all renewal notices
and all receipts of paid premiums. In the event of loss, Owner 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 Owner. The City shall receive thirty (30) days
advance notice of cancellation of any insurance policies required under this section.
Unless the City and Owner 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 Trust
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 to repay
any amounts due under the Resale Agreement, with the excess, if any, paid to Owner. If the
Security is abandoned by Owner, or if Owner 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 Owner that the
insurance carrier offers to settle a claim for insurance benefits, the City, or its designated agent,
is authorized to collect and apply the insurance proceeds at the City's option either to restoration
or repair of the Security or to pay amounts due under the Resale Agreement.
If the Security is acquired by the City, all right, title and interest of Owner 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 immediate prior to such sale or acquisition, subject to the rights of the First Lender.
6. Preservation and Maintenance of Security. Owner will keep the Security in good repair
and in a neat, clean, and orderly condition and will not commit waste or permit impairment or
deterioration of the Security. If there arises a condition in contravention of this Section 5, and if
the Owner 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.
7. Protection of the City's Security. If Owner fails to perform the covenants and agreements
contained in this Deed of Trust 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 Trust, 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
Owner, 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
attorney'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 of Owner secured by this Deed of Trust. Unless Owner and City agree
to other terms of payment, such amount will be payable upon notice from the City to Owner
requesting payment thereof, and will bear interest from the date of disbursement at the lesser of
(i) ten percent (10 %); or (ii) 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 Owner reasonable notice of
inspection.
9. 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. 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 require payment of any amounts secured by this Deed of Trust.
10. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and
cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently, independently or successively.
11. 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
Owner subject to the provisions of this Deed of Trust.
12. Joint and Several Liability. All covenants and agreements of Owner shall be joint and
several.
13. Notice. Except for any notice required under applicable law to be given in another
manner, (a) any notice to Owner provided for in this Deed of Trust will be given by certified
mail, addressed to Owner at the address shown in the first paragraph of this Deed of Trust or
such other address as Owner may designate by notice to the City as provided herein, and (b) any
notice to the City will be given by express delivery, return receipt requested, to the City of
Arroyo Grande at P. O. Box 50000, Arroyo Grande, California, 95007 -5000, Attention: City
Manager, or to such other address as the City may designate by notice to Owner as provided
above. Notice shall be effective as of the date received by City as shown on the return receipt.
14. Governing Law. This Deed of Trust shall be governed by the laws of the State of
California.
15. Severability. In the event that any provision or clause of this Deed of Trust or the Resale
Agreement conflicts with applicable law, such conflict will not affect other provisions of this
Deed of Trust or the Resale Agreement which can be given effect without the conflicting
provision, and to this end the provisions of the Deed of Trust and the Resale Agreement are
declared to be severable.
16. Captions. The captions and headings in this Deed of Trust are for convenience only and
are not to be used to interpret or define the provisions hereof.
17. Nondiscrimination. The Owner covenants by and for itself and its successors and assigns
that there shall be no discrimination against or segregation of a person or of a group of persons
on account of race, color, religion, creed, age, disability, sex, sexual orientation, marital status,
ancestry or national origin in the sale, transfer, use, occupancy, tenure or enjoyment of the
Property, nor shall the Owner or any person claiming under or through the Owner establish or
permit any such practice or practices of discrimination or segregation with reference to the use,
occupancy, or transfer of the Home. The foregoing covenant shall run with the land.
18. Nonliability for Negligence, Loss, or Damage. Owner acknowledges, understands and
agrees that the relationship between Owner and City is solely that of an owner and an
administrator of a City density bonus program, and that City neither undertakes nor assumes any
responsibility for or duty to Owner to select, review, inspect, supervise, pass judgment on, or
inform Owner of the quality, adequacy or suitability of the Security or any other matter. City
owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building
or construction or any condition of the Security and Owner agrees that neither Owner, or
Owner's heirs, successors or assigns shall ever claim, have or assert any right or action against
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. Owner agrees to defend, indemnify, and hold City and Agency harmless from
all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees
that City and Agency may incur as a direct or indirect consequence of:
A. Owner's failure to perform any obligations as and when required by the Resale
Agreement and this Deed of Trust; or
B. the failure at any time of any of Owner's representations or warranties to be true
and correct.
20. Acceleration; Remedies. Upon Owner's breach of any covenant or agreement of Owner
in this Deed of Trust, including, but not limited to, the covenants to pay, when due, any sums
secured by this Deed of Trust, the City, prior to acceleration, will mail by express delivery,
return receipt requested notice to Owner specifying; (1) the breach; (2) the action required to
cure such breach; (3) a date, not less than thirty (30) days from the date the notice is received by
Owner as shown on the return receipt, by which such breach is to be cured; and (4) 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. The notice will also inform Owner
of Owner'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 Owner to acceleration and sale. If the breach 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 Trust to be immediately due and payable
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 Security and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of 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 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 Trust,
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 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 Owner 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.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
21. Owner's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured
by this Deed of Trust, Owner 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 Trust or at any time prior to
entry of a judgment enforcing this Deed of Trust if: (a) Owner pays City all sums which would
be then due under this Deed of Trust and no acceleration under this Deed of Trust or the Resale
Agreement has occurred; (b) Owner cures all breaches of any other covenants or agreements of
Owner contained in the Resale Agreement or this Deed of Trust; (c) Owner pays all reasonable
expenses incurred by City and Trustee in enforcing the covenants and agreements of Owner
contained in the Resale Agreement or this Deed of Trust, and in enforcing the City's and
Trustee's remedies, including, but not limited to, reasonable attorney's fees; and (d) Owner 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 Owner's obligation to pay the sums secured by this Deed of Trust
shall continue unimpaired. Upon such payment and cure by Owner, this Deed of Trust and the
obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
22. Due on Transfer of the Property. Upon a Transfer (as defined in the Resale Agreement)
of the Property or any interest in it, the City shall require immediate payment in full of all sums
secured by this Deed of Trust.
23. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City will
request Trustee to reconvey the Security and will surrender this Deed of Trust and the Resale
Agreement to Trustee. Trustee 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 Trustee. The City, at the City's option, may from time to time remove Trustee
and appoint a successor trustee to any Trustee appointed hereunder. The successor trustee will
succeed to all the title, power and duties conferred upon the Trustee herein and by applicable
law.
25. Superiority of First Lender Documents. Notwithstanding any provision herein, this Deed
of Trust shall not diminish or affect the rights of the First Lender under the First Lender Deed of
Trust or any subsequent First Lender deeds of trust hereafter recorded against the Security in
compliance with the requirements of Section 24 of the Resale Agreement. City agrees to
promptly upon request execute and deliver any documents reasonably requested to subordinate
this Deed of Trust to any subsequent First Lender Deed of Trust permitted by Section 24 of the
Resale Agreement.
Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall be
subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of the
First Lender, or such lender's assignee or successor in interest, to exercise its remedies under the
First Lender Deed of Trust in the event of default under the First Lender Deed of Trust by the
Owner. Such remedies under the First Lender Deed of Trust include the right of foreclosure or
acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance
of a deed in lieu of foreclosure, this Deed of Trust shall be forever terminated and shall have no
further effect as to the Property or any transferee thereafter; provided, however, if the holder of
such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in
lieu of foreclosure, this Deed of Trust shall automatically terminate upon such acquisition of title
by First Lender, provided that (i) the City has been given written notice of default under such
First Lender Deed of Trust with a sixty (60) -day cure period and (ii) the City shall not have cured
or commenced to cure the default within such sixty (60) -day period or commenced to cure and
given its firm commitment to complete the cure in form and substance acceptable to the First
Lender; or (iii) the City shall not have exercised its option to purchase the Property pursuant to
Section 17 of the Resale Agreement and then proceeded diligently to cure the default within such
sixty (60) -day period.
26. Request for Notice. Owner requests that copies of the notice of default and notice of sale
be sent to Owner at the address set forth in Section 13 above.
IN WITNESS WHEREOF, Owner has executed this Deed Of Trust as of the date first written
above.
CITY: OWN # .):
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By: CITY MAFIAGE 11 e- D . L ! -P-
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STATE OF CALIF )
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COUNTY OF siottristetsper ) Q ' A (�
On at& 1 q , 2008, before me, ai 1 t'l V'-) ( 2 vi N o"( v1 Pct-L
personally appeared CAq,r (e4 Leit-- ca sai 1 e, I-eti T , who proven to
me on the basis of satisfactory evidence to be the person(s) whose name(s) i• are ubscribed to
the within instrument and acknowledged to me that he /sh :,j executed the same in
his/he O. uthorized capacity(ies), and that by his/he ag ignature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s ac ed, executed the instrument.
I certify under the 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.
• NAIRN
Comm. # 1716622
N - NOTARY YUBOFCAUfORNIA N
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STATE OF CALIFORNIA )
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COUNTY OF SAN LUIS OBISPO ) 5 a A 4' fo- a
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personally appeared , who proven to
me on the basis of satisfactory evidence to be the pers• s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that e/she/they executed the same in
his/her /their authorized capacity(ies), and that b is/her /their signature(s) on the instrument the
person(s) or the entity upon behalf of which ' • person(s) acted, executed the instrument.
I certify under the PENALTY OF PE' 'IRY under the laws of the State of California that the
foregoing paragraph is true and corn t.
WITNESS my hand and o ial seal.
CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT
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personally appeared STEVEN.' f'DlkrYt S
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Carr. &pisa of the State of California that the foregoing paragraph is
true and correct.
WITNESS my harm -nd official seal. �/� �(� y /
Place Notary Seal Above Signature " - ! / S • o / of Y•� ""r/ t A _
/ rLr A6fary 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 C,
Title or Type of Document: 1 .Q Q 0 -f of us+ � �•t&ea
Document Date: 2' °i 'O8 Number of Pages: 10 ` / ( AC 1. AC k)
Signer(s) Other Than Named Above: C. -harks A r 4 Gol c. 1-e cc
Capacity(ies) Claimed by Signer(s)
Signer's Name: StL.v e N < Acla✓rns Signer's Name:
171 Individual ❑ Individual
❑ Corporate Officer — Title(s): ❑ Corporate Officer — Title(s):
❑ Partner — ❑ Limited ❑ General RIGHT THUMBPRINT ❑ Partner — ❑ Limited ❑ General RIGHT THUMBPRINT
❑ Attorney in Fact OF SIGNER ❑ Attorney in Fact OF SIGNER
❑ Trustee To of thumb here Trustee Top of thumb here
❑ Guardian or Conservator ❑ Guardian or Conservator
❑ Other: ❑ Other:
Signer Is Representing: Signer Is Representing:
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® 2007 National Notary Assooaton• 9350 De Soto Ave., P.O. Box 2402 ' Chatsworth, CA 91313-2402- www.NationelNotaryorg Item 45907 Reorder:Call Toll -Free 1- 803-876.6827
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EXHIBIT A
LEGAL DESCRIPTION
Real property in the City of Arroyo Grande, County of San Luis Obispo, State of California,
described as follows:
A CONDOMINIUM COMPRISED OF:
PARCEL 1:
Airspace Envelope No. 41 of Tract 2616, in the City of Arroyo Grande, County of San Luis Obispo,
State of California, as shown and particularly described on the First Amended Condominium Plan
for Tract 2616, recorded January 11, 2007 as Instrument No. 2007 - 002198 of Official Records.
EXCEPTING AND RESERVING THEREFROM, a non - exclusive easement for access, ingress, egress,
encroachment, maintenance, repair, drainage, support and for other purposes, all as described in
the Second Amended and Restated Declaration of Covenants, Conditions and Restrictions
Establishing a Plan of Condominium Ownership of Tract 2616 ("Declaration "), recorded March 7,
2007 as Instrument No. 2007- 015380 of Official Records.
PARCEL 2:
An undivided 1/61 interest as a tenant in common in the Undivided Interest Common Area as
defined in the Declaration, referred to above, which Undivided Interest Common Area consists of
the real property described as Lot 1 of Tract 2616, in the City of Arroyo Grande, County of San
Luis Obispo, State of California, according to map recorded July 19, 2005 in Book 26, Pages 81
and 82 of Maps, in the office of the County Recorder of said county, including any Undivided
Interest Common Area duly joined through a duly authorized Dedaration of Annexation pursuant
to the Dedaration.
EXCEPTING AND RESERVING THEREFROM, Airspace Envelopes 1 through 61 inclusive, and any
and all improvements that are or will be located thereon.
ALSO EXCEPTING AND RESERVING THEREFROM, non - exclusive easements for access, ingress,
egress, encroachment, maintenance, repair, drainage, support, and for other purposes, all as
described in the Declaration.
PARCEL 3:
An exdusive easement for storage and parking appurtenant to Parcel One, which storage area
and parking area are defined in the Declaration, for use as may be permitted in the Declaration.
PARCEL 4:
Non - exclusive rights appurtenant to Parcel One above, for access, ingress, egress, encroachment,
maintenance, repair, drainage, support and for other purposes all as described in the Declaration
referred to above.
APN: 007-776-041
END OF DOCUMENT