HomeMy WebLinkAboutD-1850 1799 Tonini DRIVE Recorded 12/18/2009t
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RECORDI GREQUESTED BY:
FIRST -kA1_ERJC.kN TITLE CONIRkN -N'
WHEN RECORDED RETURN TO:
City of San Luis Obispo
990 Palm Street
San Luis Obispo, Ca. 93401
Attn: City Clerk
RECEIVE
JULIE R®D.E 0 PAM
San Luis Obispo County- 06WRecorder 12/18/2009
ReedMetl at the request of 8:00 AM
First Amer;ican_Title-C,ompany _ _ '
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JAN ,' 20'5
RLO CITY CLERK
The undersigned declare that there is no documentary
transfer tax on this matter.
Titles: 4 Pages: 19
Fees
0:00
Taxes
0.00
Others
0:00
PAID
50.00
—� Recorded for the Benefit of the
City of San Luis Obispo at No Fee Under
Section 27383 of the Government Code
PURCHASE MONEY DEED OF TRUST, DEED OF TRUST COVENANTS,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS PURCHASE MONEY DEED OF TRUST, DEED OF TRUST COVENANTS,
ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this
"Deed of Trust ") is made as of this I (al- day of , W , by Kevin
Selman and Amanda Selman, husband and wife as joint tenants ( "Trustor "), the owner of
the real property described herein below, whose address is:
1799 Tonini Drive, San Luis Obispo, California
To Allred & Company Escrow Services ( "Trustee ")
in favor of the CITY OF SAN LUIS OBISPO, a municipal corporation, whose address is
990 Palm Street, San Luis Obispo, California 93401 ( "Beneficiary")..
WHEREAS, on May 21, 2002, Beneficiary and LOVR -SLO, LLC, entered into an Affordable
Housing Agreement ( "Affordability Agreement ") to implement Council Resolution No. 9169,
approving the Rancho Obispo residential development; and
WHEREAS, to implement said Affordability Agreement, Beneficiary and Trustor entered into
that certain Promissory Note ( "Note ") dated "Lr- 16, 200 f , pursuant to which Trustor
agreed to certain restrictions on the sale or transfer of that certain real property located in the
County of San Luis Obispo, State of California, which is further described in Exhibit. A (the
"Real Property"); and
WHEREAS, Beneficiary and Trustor desire to ensure that the Real Property remain affordable to
moderate - income persons for a period of not less than 30 years - following the property's initial
date of sale, pursuant to the Affordability Agreement.
� `I5b
Deed of Trust, 1799 Tonini Drive
Page 2
1
2 NOW, THEREFORE, THIS DEED OF TRUST WITNESSETH:
4 Trustor, in consideration of the indebtedness referred to below and the trust herein created,
5 irrevocably grants, conveys, transfers and assigns to Trustee, and its successors and assigns, in
6 trust, with .power of sale and right of entry and possession, all. of Trustofs estate, right, title and
7 interest in, to and under the Real Property;
9 TOGETHER WITH all structures and improvements now existing or hereafter ,erected on the
10 Real Property, all easements, rights and appurtenances thereto or used in connection therewith,
11 all rents, royalties, issues, profits, revenues, income and other benefits thereof or arising from the
12 use or enjoyment of all or any portion thereof (subject, however, to the right, power and
13 authority given herein to Trustor to collect and apply such rents, royalties, issues, profits,
14 revenues, income and other benefits prior to an Event of Default hereunder), all interests in and
15 rights, royalties and profits in connection with all minerals, oil and gas and other hydrocarbon
16 substances thereon or therein, development rights or credits, air rights, water, water rights
17 (whether riparian, appropriative or otherwise and whether or not appurtenant) and water stock,
18 all intangible property and rights relating to the Real Property or the operation thereof or used in
19 connection therewith, including, without limitation, trade names and trademarks and all furniture
20 and fixtures, now or hereafter located in, or on, or attached or affixed to, or used or intended to
21 be used in connection with, the Real Property, including, but without limitation, all heating,
22 lighting, laundry, incinerating, gas, electric and power equipment, pipes, plumbing, fire
23 prevention and fire extinguishing, refrigerating, ventilating and communication apparatus, air
24 cooling and air conditioning apparatus, shades, awnings, blinds, curtains, drapes, attached floor
25 coverings, including rugs and carpeting and other installed appliances, attached cabinets, trees,
26 plants and other items of landscaping, shall, to the fullest extent permitted by law and for the
27 purposes of this Deed of Trust, be deemed to be part and parcel of, and appropriated to the use
28 of, the Real Property and, whether or not affixed or annexed thereto, be deemed conclusively to
29 be real property and conveyed by this Deed of Trust, and Trustor agrees to execute and deliver,
30 from time to time, such further instruments and documents as may be required by Beneficiary to
31 confirm the lien of this Deed of Trust on any of the foregoing;
32
33 TOGETHER WITH all of the estate, interest, right, title, other claim or demand which Trustor
34 now has or may hereafter acquire in any and all awards made for. the taking by eminent domain,
35 or by any proceeding or purchase in lieu thereof, of the whole or any part of the Property (as
36 hereinafter defined), including, without limitation, any awards resulting from a change of grade
37 of streets and awards for severance damages;
38
39 TOGETHER WITH all of the estate, interest, right, title and other claim or demand which
40 'Trustor now has or may hereafter acquire with respect to the unearned premiums accrued,
41 accruing or to accrue and the proceeds of insurance in effect with respect to all or any part of the
42 foregoing. All of the foregoing property referred to in this Deed of Trust, together with the Real
43 Property, is herein referred to as the "Property."
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Deed of Trust, 1799 Tonini Drive
Page 3
ARTICLE 1. PURPOSE AND CONSIDERATION. This trust deed is established for the
purpose of securing, in such order of priority as Beneficiary may elect:
(a) The repayment of the indebtedness evidenced by Trustor's Promissory Note (the
"Note ") of even date herewith payable to the order of Beneficiary, in the principal sum of
One Hundred Twenty -Four Thousand and Seventy. Five dollars ($124,075) ( "Principal "),
and any and all late charges; interest costs or fees required thereunder and all extensions,
renewals, modifications, amendments and replacements thereof. The amount of the Note
is the monetary difference between said property's initial sales price, as allowed by the
City's Affordable Housing Standards and its initial market value, as determined by City's
Community Development Director based on sales information for comparable market
rate units provided by. Trustee.
(b) The payment of. all other sums which may be advanced by or otherwise be due to
Trustee or Beneficiary under any provision of this Deed of Trust with interest (if any)
thereon at the rate provided herein or therein.
(c) Performance of all covenants. of Trustor made in this Deed of Trust.
(d) Performance of all obligations and conditions of the Housing Agreement.
ARTICLE 2. DEED COVENANTS. To protect the security of this Deed of Trust, Trustor and
Trustee hereby covenant and agree as follows:
SECTION 2.01. Restrictions on Use and Occupancy. The Real Property shall be used solely
for owner- occupied housing.
SECTION 2.02. Restrictions on Sale. The Real Property shall be sold or otherwise transferred
only to eligible households, as defined herein, or to the City, the Housing Authority of the City
of San Luis Obispo, or to a non -profit housing agency designated by City. Sales prices shall be
based on and consistent with the Affordable Housing Standards published by the City's
Community Development.Department.
SECTION 2.03. Term of Use, Occupancy and Sale Restrictions. Trustor agrees that the
above restrictions to the use, occupancy and sale of the Real Property shall remain in effect for a
period of not less than thirty (30) years from the date of the property's initial sale, or until
2039. Further, Trustor agrees that all future grant deeds
for or.transfers of interest in the properties shall contain a restriction providing that for the, period
of time specified in this deed of trust, there shall be no sale, lease, rental, or other transfer of the
properties except for the sale to eligible low or moderate income households. Any sale, lease,
rental, or other transfer of the property in violation of this covenant shall be void, as provided
below.
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Deed of Trust, 1799 Tonini Drive
Page 4
1 SECTION 2.04. Determination of Eligibility. Trustor and Trustee agree to retain the Housing
2 Authority of the City of San Luis Obispo, or other qualified entity acceptable to the City, to
3 determine whether prospective buyers qualify as eligible households as defined in the Affordable
4 Housing Standards.
5
6 SECTION 2.05. Covenants Binding. These affordability requirements shall be covenants
7 running with the land as defined in California Civil Code Section 1460, and shall apply to the
8 Real Property as further described on Exhibit A. Pursuant to Civil Code Section 1468, which
9 governs such covenants, the provisions of this Agreement shall be binding upon all parties
10 having any right, title, or interest in any of the properties described herein, or any portion thereof
11 and on their heirs, successors in interest and assigns for a period of 30 years from the initial date
12 of sale of the property. The parties agree that all future deeds or transfers of interest regarding
13 the properties shall show the restrictions of this Agreement for as long' as the Agreement is in
14 effect.,
15
16 SECTION 2.06. First Right of Refusal. Upon resale, Trustor and Trustee agree that the City or
17 the Housing Authority of the City 'of San Luis Obispo shall have the first right of refusal to
18 purchase the property or properties at the then current appraised value, as further described in the
19 Note.
20
21 SECTION 2.07. Performance of Obligations Secured. Trustor shall promptly pay when due
22 the indebtedness evidenced by the .Note and any late charges, costs and/or fees provided for in
23 the Note and shall further perform fully and in a timely manner all other obligations of Trustor
24 contained herein or in the Note.
25
26 ARTICLE 3 — INSURANCE REQUIREMENTS
27
28 SECTION 3.01. Trustor shall keep the Property and all improvements thereon insured against
29 loss or damage by fire with extended all -risk coverage clauses, including vandalism and
30 malicious mischief clauses, in an amount not less than one hundred percent (100 %) of the full
31 replacement cost of such improvements with a company or companies and in such form and with
32 such endorsements as may be approved or required by Beneficiary.
33
34 SECTION 3.02. Trustor shall also maintain in full force and effect a policy of homeowners'
35 general liability insurance insuring Trustor against liability for bodily injury, property damage
36 and personal injury arising out of the operation, use or occupancy of the Property. The initial
37 amount of such insurance shall be One Hundred Thousand Dollars ($100,000.00) per occurrence
38 and not in the aggregate and shall be subject to periodic increase based upon increased liability
39 awards or the reasonable recommendation of Trustor's professional insurance advisor. Trustor
40 shall name Beneficiary as an additional insured under .such policy. Such insurance shall be
41 primary with respect to any insurance maintained by Beneficiary and shall not call on
42 Beneficiary's insurance for contributions.
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Deed of Trust, 1799 Tonini Drive
Page 5
1 SECTION 3.03. Trustor shall pay all premiums for the insurance policies required to be
2 maintained under this Deed of Trust within fifteen (15) days after Trustor's receipt of a copy of
3 the premium statement or other evidence of the amount due. At least thirty (30) days prior to the
4 expiration of such policy, Trustor shall deliver to Beneficiary a renewal of such policy.
6 SECTION 3.04. Any insurance which Trustor is required to maintain under this Deed of Trust
7 shall include a provision requiring that the insurance carrier give Beneficiary not less than thirty
8 (30) days written notice prior to any cancellation or modification of such coverage. If Trustor (i)
9 fails to deliver any policy or renewal to Beneficiary required under this Deed of Trust within the
10 prescribed time period or (ii) if any such policy is canceled or modified to reduce the amount or
11 type of coverage without Beneficiary's consent and no substituted comparable coverage is
12 obtained by Trustor prior to such cancellation or modification, Beneficiary may obtain such
13 insurance. In such case, Trustor shall reimburse Beneficiary for the cost of such insurance within
14 fifteen (15) days after receipt of a statement that indicates the cost of such insurance and upon
15 proof that Beneficiary has paid said statement.
16
17 SECTION 3.05. Trustor shall maintain all insurance required under this Deed of Trust with
18 companies holding a "general policy rating" of A -8 or better, as set forth in the most current
19 issue of "Best Key Rating Guide." Trustor acknowledges that the insurance described in this
20 Section is for the primary benefit of Beneficiary. Beneficiary makes no representation as to the
21 adequacy of such insurance to protect Trustor's or Beneficiary's interests. Therefore, Trustor
22 shall obtain any additional property or liability insurance that Trustor deems necessary to protect
23 Beneficiary and Trustor, in the exercise of reasonable judgment.
24
25 SECTION 3.06. Notwithstanding anything to the contrary contained herein, Trustor's obligation
26 to carry the insurance provided for herein may' be brought within the coverage of a so- called
27 blanket policy or policies of insurance carried and maintained by Trustor; provided, however,
28 that Beneficiary shall be named as an additional insured thereunder and that the coverage
29 afforded Beneficiary will not be reduced or diminished by reason of the use of such blanket
30 policy of 'insurance and provided further that the requirements set forth herein are otherwise
31 satisfied.
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33 SECTION 3.07. All of the above - mentioned insurance policies or certificates of insurance must
34 be satisfactory to Beneficiary. Beneficiary shall not by the fact of approving, disapproving,
35 accepting, preventing, obtaining or failing to obtain any insurance, incur any liability for or with
36 respect to the amount of insurance carried, the form or legal sufficiency of insurance contracts,
37 insolvency of insurance companies or payment or defense of lawsuits and Trustor hereby
38 expressly assumes full responsibility therefor and all liability, if any, with respect thereto.
39
40 SECTION 3.08. Condemnation and Insurance Proceeds.
41
42 SUBSECTION 3.08(a). Any award of damages in connection with any taking or condemnation,
43 or for injury to the Property by reason of public use, or for damages for private trespass or entry
44 onto the Property is hereby assigned and shall be paid to Beneficiary as further security for all
45 obligations secured by this Deed of Trust. Upon receipt of such proceeds, Beneficiary may hold
Deed of Trust, 1799 Tonini Drive
Page 6
1 the proceeds as further security or apply or release them in the same manner and with the same
2 effect as provided in this Deed of Trust for the disposition of proceeds of fire or other insurance.
4 SUBSECTION 3.08(b). Any insurance proceeds or awards in connection with any casualty or
5 damage or injury to the Property covered by insurance ( "Insurance Proceeds ") are hereby
6 assigned to Beneficiary to be, held and applied by Beneficiary in the manner hereinafter
7 provided. Beneficiary may, at its option, and at its own expense, appear in and prosecute in its
8 own name any action or proceeding to enforce any cause of action for such Insurance Proceeds.
9 All Insurance Proceeds shall be applied by Beneficiary upon any • indebtedness secured by this
10 Deed of Trust and in any order determined by Beneficiary or, at the option of Beneficiary, the
11 entire amount so collected or any part of that amount may be released to Trustor. This
12 application or release shall not cure or waive any default or notice of default under this Deed of
13 Trust or invalidate any act done pursuant to such notice.
14
15 SUBSECTION 3.08(c). Trustor, immediately upon obtaining knowledge of the institution of any
16 proceedings relating to condemnation or other taking of or damage or injury to the Property or
17 any portion thereof, or knowledge of any casualty damage to the Property or damage in any other
18 manner, shall immediately notify Beneficiary in writing. Beneficiary may participate, at its own
19 expense, in any such proceedings and may join Trustor in adjusting any loss covered by
20 insurance.
21
22 ARTICLE 4. TAXES, LIENS AND OTHER ITEMS. Trustor shall pay, when due, all taxes,
23 bonds, assessments, fees, liens (including prior trust deed liens), charges, fines, impositions and
24 any and all other items which are attributable to or affect the Property and which may attain a
25 priority over this Deed of Trust or the indebtedness or evidence of indebtedness secured hereby,
26 by making payment prior to delinquency directly to the payee thereof. Trustor may initiate
27 proceedings to contest any such taxes, bonds, assessments, fees, liens, charges, fines, impositions
28 or other items so long as Trustor takes steps to ensure that Beneficiary's security is not
29 threatened in any manner. Trustor shall pay all costs of the proceedings, including any costs or
30 fees incurred by Beneficiary. Upon the final determination of any proceeding or contest, Trustor
31 shall immediately pay the amounts due, together with all costs, charges, interest and penalties
32 incidental to the proceedings.
33
34 ARTICLE 5. RENTS AND PROFITS. Trustor acknowledges and agrees that the Property
35 shall at all times be occupied by the Trustor as the Trustor's primary residence and shall not be
36 leased or rented during the term of the Note and this Deed of Trust. Notwithstanding the
37 foregoing, any rents, royalties, issues, profits, revenue, income and other benefits of the Property
38 arising from the use and enjoyment of all or any portion thereof or from any lease or agreement
39 pertaining thereto (the "Rents and Profits "), whether now due, past due, or to become due, and
40 including all prepaid rents and security deposits, are hereby absolutely, presently and
41 unconditionally assigned, transferred, conveyed and set over to Beneficiary to be applied by
42 Beneficiary in 'the payment of the principal and all other sums payable on the Note and of all
43 other sums payable under this Deed of Trust. It is understood and agreed that neither the
44 foregoing assignment of Rents and Profits to Beneficiary nor the.exercise by Beneficiary of any
45 of its rights or remedies under Article 5 hereof shall be deemed to defeat the owner- occupied
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Deed of Trust, 1799 Tonini Drive
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restriction set forth in the Agreement or to make Beneficiary a mortgagee -in- possession or
otherwise responsible or liable in any manner with respect to the Property or the use, occupancy,
enjoyment or operation of all or any portion thereof, unless and until Beneficiary, in person or by
agent, assumes actual possession thereof. Further, the appointment of a receiver for the Property
by any court at the request of Beneficiary or by agreement with Trustor, or the entering into
possession of the Property or any part thereof by such receiver, shall not be deemed to make
Beneficiary a mortgagee -in- possession or otherwise responsible or liable in any manner with
respect to the Property or the use, occupancy, enjoyment or operation of all or any portion
thereof.
ARTICLE 6. PRESERVATION AND MAINTENANCE OF PROPERTY. Trustor shall
keep the Property and every part thereof in good condition and repair and shall not permit or
commit any waste, impairment or deterioration of the Property nor commit, suffer or permit any
act upon or use of the Property in violation of law or applicable order of any governmental
authority, whether now existing or hereafter enacted and whether foreseen or unforeseen,
including, without limitation, violation of any zoning, building or environmental protection
statutes, ordinances, regulations, orders and restrictions or in violation of any covenants,
conditions or restrictions affecting the. Property or bring or keep any article upon any of the
Property or cause or permit any condition to exist thereon which would be prohibited by or could
invalidate any insurance, coverage maintained or required hereunder to be maintained by Trustor
on or with respect to any part of the Property and further shall do all other acts which from the
character or use of the Property may be reasonably necessary to protect the security hereof, the
specific enumerations herein not excluding the general. Trustor shall completely restore and
repair promptly and in a good and workmanlike manner any building, structure or improvement
thereon which may be damaged or destroyed and pay, when due, all claims for labor performed
and materials furnished therefor, whether or not insurance or other proceeds are available to
cover, in whole or in part, the costs of any such restoration or repair. Trustor shall notify
Beneficiary immediately in writing of any damage to the Property in excess of Ten. Thousand
Dollars ($10,000.00).
ARTICLE 7. PROTECTION OF SECURITY: COSTS AND EXPENSES. Trustor shall
appear in and defend any action or proceeding purporting to affect the security hereof or the
rights or powers of Beneficiary or Trustee and shall pay all reasonable costs and expenses,
including, without limitation, costs of evidence of title and reasonable attorney's fees, 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 or to enforce or establish any other rights or remedies
of Beneficiary hereunder. If Trustor fails to perform any of the covenants or agreements in this
Deed of Trust or if any action or proceeding is commenced which affects Beneficiary's interest in
the Property or any part thereof, including, but not limited to, eminent domain, code enforcement
or proceedings of any nature whatsoever under any federal or state law, whether now existing or
hereafter enacted or amended, relating to bankruptcy, insolvency, arrangement; reorganization or
other form of debtor relief, or to a decedent, then Beneficiary or Trustee may, but without
obligation to do so and upon ten (10) days' prior written notice to and demand .upon Trustor
(unless a shorter notice period is necessary to protect Beneficiary's interest in the security hereof,
in which case only reasonable notice and demand under the circumstances shall be required) and
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Deed of Trust, 1799 Tonini Drive
Page 8
1 without releasing Trustor from any obligation hereunder, make such appearances, disburse such
2 sums and take such action as Beneficiary or Trustee deems necessary or appropriate to protect
3 Beneficiary's interest, including, but not limited to, disbursement of reasonable attorney's fees,
4 entry upon the Property to make repairs or otherwise protect the security hereof, and payment,
5 purchase, contest or compromise of any encumbrance, charge or lien which in the judgment of
6 either Beneficiary or Trustee appear to be prior or superior hereto. Trustor further agrees to pay
7 all reasonable expenses of Beneficiary (including fees and disbursements of counsel) reasonably
8 related to the protection of the rights of Beneficiary hereunder, and enforcement or collection of
9 payment of the Note, whether by judicial or non - judicial proceedings, or in connection with any
10 bankruptcy, insolvency, arrangement, reorganization or other debtor relief proceeding of Trustor,
11 or otherwise. Beneficiary shall give Trustor ten (10) days' prior written notice before disbursing
12 any amounts pursuant to this Article. Any amounts disbursed by Beneficiary or Trustee pursuant
13 to this Section shall be additional indebtedness of Trustor secured by this Deed of Trust as of the
14 date of disbursement. All such amounts shall be payable by Trustor immediately without
15 demand. Nothing contained herein shall be construed to require Beneficiary or Trustee to incur
16 any expense, make any appearance or take any other action.
17
18 ARTICLE 8. ENFORCEMENT.
19
20 Section 8.01. Acknowledgement of Enforceability. Trustor represents, warrants, covenants
21 and agrees that it is the lawful owner of the Real Property and that it has good right and lawful
22 authority to encumber the same as provided herein; that the Real Property is free from any and
23 all liens and encumbrances excepting only such as have been approved by Beneficiary and that
24 Trustor warrants and will defend the title to the Property against all claims and demands
25 whatsoever not specifically excepted herein (and except for claims and demands arising from
26 acts or omissions of Beneficiary or any predecessor -in- interest to Beneficiary not previously
27 disclosed to Trustor), and Trustor will execute, acknowledge and deliver all and every such
28 further assurances unto Beneficiary of the title to the Property hereby conveyed and intended so
29 to be or that Trustor may be or shall become hereinafter bound so to do. Trustor covenants and
30 warrants that the Note and this Deed of Trust are valid andc enforceable obligations of Trustor in
31 accordance with the terms thereof and hereof, and that this Deed of Trust does not, nor does the
32 Note, nor does the performance or observance by Trustor of any of the matters or things in the
33 Note or this Deed of Trust, contravene any covenant in any indenture or agreement affecting
34 Trustor.
35
36 Section 8.02. Due on Sale and Other Enforcement Provisions., Trustor's agreement to ensure
37 the continued owner occupancy of the Real Property is a substantial material consideration to
38 Beneficiary and Beneficiary's agreement to accept the Note and to accept this Deed of Trust. In
39 accordance with California Civil Code Section 711.5 and in order to induce Beneficiary to
40 accept this Deed of Trust and the Note, Trustor agrees that Trustor shall not Transfer all or any
41 part of the Property without the prior written consent of Beneficiary. Except for a Transfer to a
42 Eligible Household (as defined in the City of San Luis Obispo's Affordable Housing Standards),
43 Beneficiary may grant or deny such consent in its sole and absolute discretion and as a condition
44 to such consent may require any transferee to assume all obligations hereunder and to agree to be
45 ' bound by all provisions contained herein. In the event of any proposed Transfer, Trustor shall
Deed of Trust, 1799 Tonini Drive
Page 9
1 provide Beneficiary with all financial and other information pertaining to the intended transferee
2 reasonably requested by Beneficiary. In the event of any Transfer without the prior written
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consent of Beneficiary, Beneficiary shall have the absolute right, at its option, without demand
or notice, to declare all outstanding Principal and all other sums due hereunder and under the
Note to be immediately due and payable. Further, Beneficiary may bring an action at law or in
equity to require Trustor and the proposed transferee to terminate and/or rescind any sales
contract or purchase and sale transaction between them and/or to declare the transfer void,
notwithstanding that the transfer may have closed and become final as between Trustor and the
transferee. Further, Beneficiary may pursue any other remedy available under this Deed of Trust
or the Note or at law or in equity or under any other agreement, instrument or document entered
into by Trustor and Beneficiary. Beneficiary's consent to one Transfer shall not be deemed to be
a waiver of the right to require consent to a future or successive Transfer. As used herein,
"Transfer" includes any sale, agreement to sell, assignment, exchange or other conveyance of the
Property or any portion thereof or any interest therein, whether voluntary or involuntary, by
operation of law or otherwise, except that a Transfer by gift, devise or inheritance to a spouse or
to a spouse as a part of a dissolution proceeding shall not be considered a Transfer for purposes
of this Section.
ARTICLE 9. EVENTS OF DEFAULT. Each of the following shall constitute an event of
default ( "Event of Default ") hereunder (including, if Trustor and Trustee consists of more than
one person or entity, the occurrence of any of such events with respect to any one or more of
such persons or entities):
SECTION 9.01. Breach of Covenants. Default by Trustor in the performance of any of the
covenants or agreements of Trustor contained herein, in the Note, in the Housing Agreement or
any other note or instrument, trust deed or other obligation of Trustor relating to the Property
secured by any part of or all of the Property, whether junior or senior to this Deed of Trust.
SECTION 9.02. Appointment of Trustee. The appointment pursuant to an order of a court of
competent jurisdiction, of a trustee, receiver or liquidator of the Property or any part thereof, or
of Trustor, or any termination or voluntary suspension of the transaction of business of Trustor,
or any attachment, execution or other judicial seizure of all or any substantial portion of Trustor's
assets; provided, however, that if such attachment, execution or seizure is involuntary, Trustor
shall not be deemed in default unless the same is not discharged within sixty (60) days.
SECTION 9:03. Bankruptcy Filing. The filing by or against Trustor of a petition in bankruptcy
or for an arrangement or for reorganization or for other form of debtor relief pursuant to the
federal Bankruptcy Act, as the same may be amended or replaced from time to time, or any other
law, federal , or state, whether now existing or hereafter amended or enacted relating to
insolvency or debtor relief (except that in the case of a filing against Trustor, an Event of Default
shall not exist unless Trustor fails to have the proceeding discharged within sixty (60) days after
such filing), or the adjudication of Trustor as a bankrupt or an insolvent by a decree of a court of
competent jurisdiction, or the making of an assignment for the benefit of creditors, or the
admission by Trustor in writing of its inability to pay its debts generally as they become due, or
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Deed of Trust, 1799 Tonini Drive
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the giving of consent by Trustor to the appointment of a receiver or receivers of ,all or
substantially all of its property.
SECTION 9.04. Misrepresentations. Any representation or disclosure made to Beneficiary by
Trustor as an inducement to the making of the loan evidenced by the Note that proves to be false
or misleading in any material respect as of the time the same was made, whether or not any such
representation or disclosure appears as part of this Deed of Trust.
SECTION 9.05. Other Events. Any other event which, under this Deed of Trust, or under the
Note or the Agreement, constitutes an Event of Default by Trustor hereunder or thereunder or
gives Beneficiary the right to accelerate the maturity of the indebtedness, or any part thereof,
secured hereby.
ARTICLE 10. REMEDIES. Upon the occurrence of any Event of Default and the expiration
of any applicable period within which to cure the. same, Trustee and Beneficiary shall have the
following rights and remedies:
SECTION 10.01. Acceleration. Beneficiary may declare the entire outstanding Principal and all
other sums or payments required hereunder to be due and payable immediately and
notwithstanding the date such sums would otherwise be due in accordance with the Note and the
Agreement.
SECTION 10.02. Entry. Whether or not Beneficiary exercises the right provided in Section
10.01 above, Beneficiary, in person or by agent or court- appointed receiver, may enter upon,
take possession of, manage and operate the Property or any part thereof and do all things
necessary or appropriate in Beneficiary's sole discretion in connection therewith, including,
without limitation, making and enforcing, and if the same be subject to modification or
cancellation, modifying or canceling leases upon. such terms or conditions as Beneficiary deems
proper, obtaining and evicting tenants, and fixing or modifying rents, contracting for and making
repairs and alterations, and doing any and all other acts which Beneficiary deems proper to
protect the security hereof; and either with or without so taking possession, in its own name, in
the name of Trustor or by court- appointed receiver (which may be appointed on notice or on ex
parte application without notice), suing for or otherwise collecting and receiving the rents and
profits, including those past due and unpaid, and applying 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. Upon request of Beneficiary, Trustor
shall assemble and make available to Beneficiary at the site of the Real Property , any of the
Property which has been removed therefrom. The entering upon and taking possession of the
Property, or any part thereof, the collection of any rents and profits and the application thereof as
aforesaid shall not cure or waive any Event of Default theretofore or thereafter occurring or
affect any notice or Event of Default or notice, and, notwithstanding continuance in possession
of the Property or any part thereof by Beneficiary, Trustor or a receiver, and the collection,
receipt and application of the rents and profits, Beneficiary shall be entitled to exercise every
right provided for in this Deed of Trust or by law or in equity upon or after the occurrence of an
Event of Default, including, without limitation, the right to exercise the power of sale. Any of the
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Deed of Trust, 1799 Tonini Drive
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1 actions referred to in this Section may be taken by Beneficiary irfespective of whether any notice
2 of an Event of Default or election to sell has been given hereunder and without regard to the
3 adequacy of the security for the indebtedness hereby secured.
5 SECTION 10.03. Judicial Action. Beneficiary may bring an action in any court of competent
6 jurisdiction to foreclose this Deed of Trust or to enforce any of the covenants and agreements of
7 this Deed of Trust, or the Note and the Housing Agreement.
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9 SECTION 10.04. Power of Sale.
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11 SUBSECTION 10.04(a). Beneficiary may elect to cause.the Property or any part thereof to be
12 sold under the power of sale herein granted in any manner permitted by applicable law. In
13 connection with any sale or sales hereunder, Beneficiary may elect to treat any of the Property
14 that consists of a right in action or that is property that can be severed from the Real Property or
15 any improvements thereon without causing structural damage thereto as if the same were
16 personal property and dispose of the same in accordance with applicable law, separate and apart
17 from the sale of the Real Property.
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19 SUBSECTION 10.04(b). Trustee may, and upon request of Beneficiary shall, from time to time,
20 postpone any sale hereunder by public announcement thereof at the time and place noticed
21 therefor. If the Property consists of several items of property, Beneficiary may designate the
22 order in which such items shall be offered for sale or sold. Any person, including Trustor,
23 Trustee or Beneficiary, may purchase at any sale hereunder, and Beneficiary shall have the right
24 to purchase at any sale hereunder by crediting upon the bid price the amount of all or any part of
25 the indebtedness hereby secured.
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27 SUBSECTION 10.04(c). Should Beneficiary desire that more than one sale or other disposition
28 of the Property be conducted, Beneficiary may, at its option, cause the same to be conducted
29 simultaneously, or successively, on the same day, or at such different days or times and in such
30 order as Beneficiary may deem to be in its best interests, and no such sale shall terminate or
31 otherwise affect the lien of this Deed of Trust on any part of the Property not sold until all
32 indebtedness secured hereby has been fully paid. Upon any sale hereunder, Trustee shall execute
33 and deliver to the purchaser or purchasers a deed or deeds conveying the Property so sold, but
34 without any covenant or warranty whatsoever, express or implied, whereupon such purchaser or
35 purchasers shall be let into immediate possession; and the recitals in any such deed or deeds of
36 facts, such as default, the giving of notice of default and notice of sale and other facts affecting
37 the regularity or validity of such sale or disposition, shall be conclusive proof of the truth of such
38 facts and any such deed or deeds shall be conclusive against all persons as to such facts recited
39 therein.
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41 SUBSECTION 10.04(d). In case of any sale of the Property pursuant to any judgment or decree
42 of any court or at public auction or otherwise in connection with the enforcement of any of the
43 terms of this Deed of Trust, Beneficiary, its successors or assigns, may become the purchaser,
44. and for the purpose of making settlement for or payment of the purchase price, shall be entitled
45 to deliver over and use the Note, together with all other sums, with interest, advanced and unpaid
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hereunder, in order that there may be credited as paid on the purchase price the sum then due
under the Note, including principal thereon and all other sums; with interest, advanced and
unpaid hereunder.
SECTION 10.05. Proceeds of Sale. The proceeds of any sale made under or by virtue .of this
Article, together with all other sums that then may be held by Trustee or Beneficiary under this
Deed of Trust, whether under the provisions of this Article or otherwise, shall be applied as
follows:
(a) First, to the payment of the costs and expenses of sale and of any judicial proceedings
wherein the same may be made, including reasonable compensation to Trustee and Beneficiary,
their agents and counsel, and to the payment of all expenses, liabilities and advances made or
incurred by Trustee under this Deed of Trust, together with interest on all advances made by
Trustee at the maximum rate permitted by law to be charged by Trustee.
(b) Second, to the payment of any and all sums expended by Beneficiary under the terms hereof
(including, but not limited to, sums paid. by Beneficiary on the prior trust deed) not then repaid
and all other sums required to be paid by Trustor pursuant to any provisions of this Deed of Trust
or the Note, including, without limitation, all expenses, liabilities and advances made or incurred
by Beneficiary under this Deed of Trust or in connection with the enforcement hereof, together
with interest thereon as herein provided.
(c) Third, to the payment of the entire amount then due, owing or unpaid upon the Note,
including attorney's fees and costs.
(d) Fourth, all amounts otherwise due Beneficiary.
(e) The remainder, if any, to the person or persons legally entitled thereto.
SECTION 10.06. . Waiver of Marshaling. Trustor, for itself and for all persons hereafter
claiming through or under it or who may at any time hereafter become holders of liens junior to
the lien of this Deed of Trust, hereby expressly waives and releases all rights to direct the order
in which any of the Property shall be sold in the event of any sale or sales pursuant hereto, and to
have any of the Property and/or other property now or hereafter constituted security for any of
the indebtedness secured hereby, marshaled upon any foreclosure of this Deed of Trust or for
any other security for any of said indebtedness.
SECTION 10.07.. Remedies Cumulative. No remedy herein conferred upon or reserved to
Trustee or Beneficiary is intended to be exclusive of any other remedy herein or by law
provided, but each shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of
Trustee or Beneficiary to exercise any right or power accruing upon any Event of Default shall
impair any right or power or shall be construed to be a waiver of any Event of Default or any
acquiescence 'therein; and every power and remedy given by this Deed of Trust to Trustee or
Beneficiary may be exercised from time to time as often as may be deemed expedient by Trustee
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1 or Beneficiary. If there exists additional security for the performance of the obligations secured
2 hereby, the holder of the Note, at its sole option, and without limiting or affecting any of its
3 rights or remedies hereunder, may exercise any of the rights and remedies to which it may be
4 entitled hereunder either concurrently with whatever rights and remedies it may have in
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connection with such other security or in such order as it may determine. Any application of any
amounts or any portion thereof held by Beneficiary at any item as additional security hereunder,
whether pursuant to this deed of trust or otherwise, to any indebtedness secured hereby shall not
extend or postpone the due dates of any payments due from Trustor to Beneficiary hereunder or
under the Note, or change the amounts of any such payments or otherwise -be construed to cure
or waive any default or notice of default hereunder or invalidate any act done pursuant to any
such default or notice. In the event that Beneficiary shall have proceeded to enforce any right
under this Deed of Trust by foreclosure, sale, entry or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason or shall have been determined adversely,
then, and in every such case, Trustor and Beneficiary shall be restored to their former positions
and rights hereunder with respect to the Property subject to the lien hereof.
ARTICLE 11. MISCELLANEOUS
SECTION 11.01. Severability. In the event that any one or more of the provisions contained in
this Deed of Trust shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Deed of Trust, and this Deed of Trust shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
SECTION 11.02. Certain Charges. Trustor agrees to ,pay the charges of Beneficiary for any
service rendered Trustor, or on its behalf, connected with this Deed of Trust or the indebtedness
secured hereby, including, without limitation, delivering to an escrow holder a request for full or
partial reconveyance of this Deed of Trust, transmitting to an escrow holder moneys secured
hereby, changing the records pertaining to this Deed of Trust and .indebtedness secured hereby,
showing a new owner of the Property and replacing an existing policy of insurance held
hereunder with another such policy.
SECTION 11.03. Notices. All notices expressly provided hereunder to be given by Beneficiary
to Trustor and all notices and demands of any kind or nature whatsoever that Trustor may be
required or may desire to give to or serve on Beneficiary shall be in writing and shall be served
by first class or registered or certified mail, return receipt requested. Any such notice .or demand
so served shall be deposited in the United States mail, with postage thereon fully prepaid and
addressed to the party so to be served at its address above stated or at such other address of
which said party shall have theretofore notified in writing, as provided above, the party giving
such notice. Service of any such notice or demand so made shall be deemed effective on the date
of actual delivery as shown by the addressee's return receipt or the expiration of forty-eight (48)
hours after the date of mailing, whichever is the earlier in time, except that service of any notice
of default or notice of sale provided or required by law shall, if mailed, be deemed effective on
the date of mailing.
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1 SECTION 11.04. Trustor Not Released. Extension of the ,time for payment or modification of
2 the terms of payment of any sums secured by this Deed of Trust granted by Beneficiary to any
3 successor -in- interest of Trustor shall not operate to release, in any manner, the liability of the
4 original Trustor. Beneficiary shall not be required to commence proceedings against such
5 successor or refuse to extend time for payment or otherwise modify the terms of the payment of
6 the sums secured by this Deed of Trust by reason of any demand made by the original Trustor.
7 Without affecting the liability of any person, including Trustor, for the payment of any
8 indebtedness secured hereby, or the lien of this Deed of Trust on the remainder of the Property
9 for the full amount of any such indebtedness and liability unpaid, Beneficiary and Trustee are
10 respectively empowered as follows: Beneficiary may from time to time and without notice (a)
11 release any person liable for the payment of any of the indebtedness, (b) extend the time or
12 otherwise alter the terms of payment of any of the indebtedness, (c)' accept additional real or
13 personal property of an kind as security therefor, whether evidenced by deeds of trust,
14 mortgages, security agreements or any other instruments of security, or (d) alter, substitute or
15 release any property securing the indebtedness; Trustee may, at any time and from time to time,
16 upon the written request of Beneficiary (a) consent to the making of any map or plat of the
17 Property or any part thereof, (b) join in granting any easement or creating any restriction thereon,
18 (c) join in any subordination agreement or other agreement affecting this Deed of Trust or the
19 lien or charge hereof, or (d) reconvey, without any warranty, all or part of the Property.
20
21 SECTION 11.05. Inspection. Beneficiary may at any reasonable time or times make or cause to
22 be made entry upon and inspections of the Property or any part thereof in person or by agent.
23
24 SECTION 11.06. Reconveyance. Upon the payment in full of all sums secured by this Deed of
25 Trust or upon forgiveness of such payment in ' accordance with the Note, Beneficiary shall
26 request that Trustee reconvey the Property and shall surrender this Deed of Trust and Note
27 evidencing indebtedness secured by this Deed of Trust to Trustee. Upon payment of its fees and
28 any other sums owing to it under this Deed of Trust; Trustee shall reconvey the Property without
29 warranty to the person or persons legally entitled thereto. Such person or persons shall pay all
30 costs of recordation, if any. The recitals in such reconveyance of any matters of facts shall be
31 conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described
32 as "the person or persons legally entitled thereto." Five (5) years after issuance of such full
33 reconveyance, Trustee may destroy the Note and this Deed of Trust unless otherwise directed by
34 Beneficiary.
35
36 SECTION 11.07. Interpretation. Wherever used in this Deed of Trust, unless the context
37 indicates a contrary intent, or unless otherwise specifically provided herein, the word "Trustor"
38 shall mean and include both Trustor and any subsequent owner or owners of the Property, and
39 the word 'Beneficiary" shall mean and include not only the original Beneficiary hereunder but
40 also any future owner and holder, including pledgees, of the Note secured hereby. In this Deed
41 of Trust wherever the context so requires, the masculine gender includes the feminine and/or
42 neuter, and the neuter includes the feminine and/or masculine, and the singular number includes
43 the plural and conversely. In this Deed of Trust, the use of the word "including" shall not be
44 deemed to limit the generality of the term or clause to which it has reference, whether or not
45 non - limiting language (such as "without limitation," or "but not limited to" or words of similar
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import) is used with reference thereto. The captions and, headings of the Articles and Sections of
this Deed of Trust are for convenience only and are not to be used to interpret, define or limit the
provisions hereof.
SECTION 11.08. Consent. The granting or withholding of consent by Beneficiary to any
transaction as required by the terms hereof shall not be deemed a waiver of the right to require
consent to future or successive transactions.
SECTION 11.09. Successors and Assigns. All of the: grants, obligations, covenants,
agreements, terms, provisions and conditions herein shall run with the land and shall apply to,
bind, and inure to the benefit of the heirs, administrators, executors, legal representatives,
successors and assigns of Trustor and the successors -in -trust of Trustee and the endorsees,
transferees, successors and assigns of Beneficiary. In the event that Trustor is composed of more
than one parry, the obligations, covenants, agreements and warranties contained herein as well as
the obligations arising therefrom are and shall be joint and several as to each such party.
SECTION 11.10. Governing Law. This Deed of Trust shall be governed by and construed under
the laws of the State of California.
SECTION 11.11. Trustor Waivers. Trustor waives the benefit of all laws now existing or that
hereafter may be enacted with respect to any statute of limitations for the filing of any action or
claims by Beneficiary.
SECTION 11.12. Superiority of First Lender Documents.
SUBSECTION 11.12(a). This Deed of Trust shall not diminish or affect the rights of the First
Lender under that certain deed of trust dated December- 11, 2009
executed by the Trustor in favor of the First Lender and recorded in the County of San Luis
Obispo on * , and assigned Instrument No. * or any
subsequent First Lender deeds of trust hereafter recorded against the Security (the "First Deed of
Trust "), except as provided in Subsection 12.13(b) below. Beneficiary and Trustor acknowledge
and agree that this Deed of Trust is subject and subordinate in all respects to the liens, terms,
covenants and conditions of the First Deed of Trust and to all advances heretofore made or
which may hereafter be made pursuant to the First Deed of Trust including all sums advanced for
the purpose of (i) protecting or further securing the lien of the First Deed of Trust, curing
defaults by the Trustor under the First Deed of Trust or for any other purpose expressly
permitted by the First Deed of Trust or (ii) constructing, renovating, repairing, furnishing,
fixturing or equipping the Property. The terms and provisions of the First Deed of Trust are
paramount and controlling, and they supersede any other terms and provisions hereof in conflict
therewith. *CONCURRENTLY HEREWITH
SUBSECTION 11.12(b). In the event of default, the First Lender may take the following actions
to cure the default, provided first that: (i) the Beneficiary has been given written notice of a
default under the First Deed of Trust, and (ii) the Beneficiary shall not have cured the default
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Deed of Trust, 1799 Tonini Drive
Page 16
1 under the First Deed of Trust, or diligently pursued curing the default as determined by the First
2 Lender, within the 60 -day period provided in such notice sent to the Beneficiary:
3
4 1) Foreclose on the subject property pursuant to the remedies permitted by law and written
5 in a recorded contract or deed of trust; or
6-
7 2) Accept a deed of trust or assignment to the extent of the value of the unpaid first
8 mortgage to the current market value in lieu of foreclosure in the event of default by a
9 _ - trustor; or
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11 3) Sell the property to any person at a fair market value price subsequent to exercising its
12 rights under the deed of trust. Any value in excess of the unpaid mortgage and costs of
13 sale administration shall be used to satisfy the City loan. In no case may a first mortgage
14 lender, exercising foreclosure assignment in -lieu of foreclosure or sale, obtain value or
15 rights to value greater than the value of the outstanding indebtedness on the first
16 mortgage at the time of the debt clearing action.
17
18 The following types of transfers shall remain subject to the requirements of the City's loan and
19 right of first refusal: transfer by gift, devise, or inheritance to the owner's spouse; 'transfer to a
20 surviving joint tenant; transfer to a spouse as part of divorce or dissolution proceedings; or
21 acquisition in conjunction with a marriage.
22
23 SECTION 11..13. Request for Notices of Default and Sale.
24
25 SUBSECTION 11.13(a). Trustor hereby requests that a copy of any notice of default and notice
26 of sale as may be required by law or by this Deed of Trust be mailed to Trustor at its address
27 above stated.
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29 SUBSECTION 11.13(b). In accordance with Section 2924b of the California Civil Code, request
30 is hereby made that a; copy of any notice of default and a copy of any notice of sale under that
31 deed trust recorded concurrently herewith, be mailed to: Community Development Director,
32 City of San Luis Obispo, 990 Palm Street, San Luis Obispo, California 93401.
33
34 SECTION 11.14. No Transfer. Trustor shall not voluntarily or involuntarily (except for a
35 transfer in accordance with the Housing Agreement) assign or otherwise transfer any of its
36 rights, duties, liabilities or obligations hereunder or under the Note without the prior written
37 consent of Beneficiary.
38
39 SECTION 11.15. Attorney's Fees. In any action to interpret or enforce any provision of this
40 Deed of Trust, the prevailing party shall be entitled to reasonable costs and attorney's fees.
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Deed of Trust, 1799 Tonini Drive
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IN WITNESS WHEREOF, the undersigned have executed this Deed of Trust as of the day and
year first above written. (attach notarization)
��Llr
Amanda Selman
Kevin Selman
17
State of California }
County of San Luis Obispo }
On September 16-2009 , before me, Laurie L.. Hanson Notary Public ,
ate Name ana I it le o1 f the Officer
personally appeared, Kevin _ : Selman and Amandal.__' Selman ,
Name of igner s .
who proved to me on the basis of satisfactory evidence to be the persons whose
names are subscribed to the within instrument and acknowledged to me that they
executed the same in their authorized capacities, and that by their signatures on
the instrument the persons, or the entity upon behalf of which the persons 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.
LAURIE L. NMWN
COmMWM * 17911"8
No1am roc • C411111000 WITNESS my hand and official seal. tan LVM Apo law
Signature , C"-/- 2L-40'-j PIK
Signature of o ary u is Place Notary Seal Above
0
Deed of Trust, 1799 Tonini Drive
Page 18
1 EXHIBIT "A'
2
3 LEGAL DESCRIPTION OF REAL PROPERTY
4
5.
6 Real property in the City of SAN LUIS OBISPO, County of SAN LUIS OBISPO, State of
7 California, described as follows:
8
9
10 LOT 53 OF TRACT 2401, IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO,
1.1 STATE OF CALIFORNIA, ACCORDING TO MAP RECORDED MAY 28, 2002 IN BOOK 20 PAGE it
12 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
13 j
14 APN:053- 514 -053
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END OF DOCUMENT