HomeMy WebLinkAboutR07- Economic development ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
*^- REQUEST FOR COMMISSION/COUNCIL ACTION
FROM: BARBARA J.LINDSETH SUBJECT: OSBORNE HOME BUYER'S
Acting Director ASSISTANCE
DATE: March 15, 1995
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Sinopsis of Previous Commission/Council/Committee Action(s):
On November 15, 1994,the Housing Committee approved$200,000 in available FY 1994/95 low-mod housing set-aside funds
and recommended forwarding to the Community Development Commission.
On March 14, 1995,the Housing Committee approved a grant of$50,000 by Osborne Development to the Redevelopment
Agency and recommended forwarding to the Community Development Commission.
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Recommended Motion(s):
(Community Development Commission)
MOTION: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN
BERNARDINO,ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO,APPROVING A CERTAIN ADDENDUM NO. 1 TO OWNER PARTICIPATION
AGREEMENT(OSBORNE COLLECTION OF NORTHPARK-PHASE fI).
Administrator BARBARA J.LINDSETH
Acting Director
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Contact Person(s):Barbara J.Lindseth/Adam B.F.liason Phone: 5081
Project Area(s): State College Ward(s): Five(5)
Supporting Data Attached: Staff Report-, Map-, Addendum
FUNDING REQUIREMENTS: Amount:$ -0- Source: N/A
Budget Authority:
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Commission/Council Notes:
BJL:ABE:paw:osbome.cdc COMMISSION MEETING AGENDA
Meeting Date: 03/20/95
Agenda Item No:
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
STAFF REPORT
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OSBORNE HOME BUYER'S ASSISTANCE
On December 5, 1994 the Community Development Commission approved financial assistance to the
Northpark Collection by Osborne Development. The development is located within the State College
Redevelopment Project Area, at the intersection of Northpark Boulevard and Mountain Avenue. Of the
total seventy-two (72) homes in the development, the approved Owner Participation Agreement (OPA)
of December 1994, authorized financial assistance to thirty(30) qualified low to moderate income home
buyers.
In an effort to assist a portion of the remaining forty-two (42) homes that did not get financial assistance,
Osborne Development has offered to grant the Agency $50,000 to be deposited into the Agency's
housing fund and obligated towards the financial assistance of a portion of the remaining forty-two (42)
qualified low to moderate income home buyers. The financial assistance would be rendered in the form
of down payment and closing costs and would have recorded silent second trust deeds and promissory
notes similar to the highly successful Mortgage Assistance Program (MAP) already approved and
operating in the City. Repayment of the notes would be made back to the Agency's housing fund with no
further obligation to Osborne Development.
This method of financial assistance allows the home buyer to obtain down payment and closing costs
assistance from a government agency, with lenders, therefore, treating the assistance as if it were the
home buyer's money and not a loan. No other entity or financial institution can offer the same attractive
financing. All other entities offering similar financing would be treated as a separate loan and would
consequently make it more difficult for the potential home buyer to obtain a first trust deed.
Based upon the significant benefit to the City, the Redevelopment Agency, the Developer and potential
low to moderate income home buyers, Agency staff recommends adoption of the form motion.
BARBARA J. LINDSETH, Acting Director
Development Department
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B.11,:ABE:paNvosbome.cdc COMMISSION MEETING AGENDA
Meeting Date: 03/20/95
Agenda Item No:
I RESOLUTION NO.
2 RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO, ON
3 BEHALF OF THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, APPROVING A CERTAIN
4 ADDENDUM NO. 1 TO OWNER PARTICIPATION
AGREEMENT (OSBORNE COLLECTION OF NORTHPARK -
5 PHASE II)
6 WHEREAS, the City of San Bernardino, California (the
7 "City") is a municipal corporation and a charter city duly
8 created and existing pursuant to the Constitution and the laws of
9 the State of California; and
10
11 WHEREAS, the Community Development Commission of the
12 City of San Bernardino (the "Commission") , on behalf of the
13 Redevelopment Agency of the City of San Bernardino (the
14 "Agency") , is a redevelopment agency, a public body, corporate
15 and politic of the State of California, organized and existing
16 pursuant to the Community Redevelopment Law (Part 1 of
17 Division 24) commencing with Section 33000 of the Health and
18 Safety Code of the State of California (the "Act") ; and
19
20 WHEREAS, Northpark Builders, Ltd. (the "Participant")
21 is a California limited partnership organized and existing by and
22 pursuant to the laws of the State of California; and
23
24 WHEREAS, the City has previously approved and adopted
25 a Redevelopment Plan for the State College Redevelopment Project
26 Area (hereinafter referred to as the "Redevelopment Plan") ; and
27 -
28
-1-
1 WHEREAS, the Participant has previously entered into an
2 Owner Participation Agreement (the "OPA") with the Agency
3 pursuant to which it has caused, or is in the process of causing,
4 the development of certain property located within the
5 Redevelopment Project Area subject to the Redevelopment Plan,
6 with the construction thereon of 72 single family residential
7 units; and
8
9 WHEREAS, pursuant to the terms of the OPA, the Agency
10 has agreed to provide certain assistance under the Agency's
11 existing Mortgage Assistance Program in order to assist the
12 Participant in the marketing and sale of the residential lots to
13 qualifying low- and moderate-income households; and
14
15 WHEREAS, the Agency at this time deems it desirable to
16 approve an Addendum to the original OPA whereby the Participant
17 has agreed to contribute Participant's own funds to further
18 assist in the sale and marketing of residential lots to low- and
19 moderate-income households; and
20
21 WHEREAS, the provision of additional assistance by the
22 Participant pursuant to the terms of the Addendum shall not
23 require any additional financial contributions by the Agency but
24 instead will benefit the Agency to the extent that potential
25 homebuyers who avail themselves of the additional assistance will
26 execute a Promissory Note in favor of the Agency secured by a
27 Deed of Trust whereby they will agree to repay the Agency in the
28 event the residential lot is sold or transferred to a household
-2-
1 that does not qualify as a low- and moderate-income household;
2 and
3
4 WHEREAS, the Addendum, a copy of which is attached
5 hereto as Exhibit "A" and incorporated herein by this reference,
6 will provide a direct benefit to the State College Redevelopment
7 Project Area and to the City generally by facilitating the sale
8 of residential units to low- and moderate-income households at
9 affordable housing costs.
10
11 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION
12 ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
13 SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
14 FOLLOWS:
15
16 Section 1. The foregoing recitals are true and
17 correct and are incorporated herein by this reference.
18
19 Section 2 . The Agency hereby approves the form of
20 the Addendum No. 1, a copy of which is attached hereto as Exhibit
21 "A" and incorporated herein by this reference.
22
23 Section 3 . The Agency hereby authorizes the
24 Chairman or the Executive Director of the Agency, and Secretary
25 to execute the Addendum No. 1 in substantially the form of
26 Exhibit A, on behalf of the Agency with any such changes as may
27 be approved by the Executive Director of the Agency and Agency
28 Counsel.
-3-
1 section 4 . The Agency finds and determines that the
2 additional assistance as described in Addendum No. 1 will not
3 require the contribution of any additional Agency funds but
4 instead will provide a direct benefit to the Agency by
5 facilitating the sale of residential units to low- and moderate-
6 income households at affordable housing costs.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO, ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY
2 OF SAN BERNARDINO, APPROVING A CERTAIN ADDENDUM NO. 1 TO OWNER
PARTICIPATION AGREEMENT (OSBORNE COLLECTION OF NORTHPARK - PHASE
3 II)
4 Section 5. The findings and determinations herein
5 shall be final and conclusive. This Resolution shall take effect
6 upon the date of its adoption.
7
8 I HEREBY CERTIFY that the foregoing Resolution was duly
9 adopted by the Community Development Commission of the City of
10 San Bernardino at a meeting
11 thereof, held on the day of
12 1994, by the following vote, to wit:
13
14 Commission Members: AYES NAYS ABSTAIN ABSENT
NEGRETE
15 CURLIN
16 HERNANDEZ
OBERHELMAN
DEVLIN
17 POPE-LUDLAM
MILLER
18
19 Secretary
20 The foregoing resolution is hereby approved this
21 day of , 1994.
22 Tom Minor, Chairman
Community Development
23 Commission of the
City of San Bernardino
24 Approved as to
form and legal content:
2 By. 4
6
Agency Cddsisel
27 ssEO\0001\DOC\2025
28
-5-
EXHIBIT "A"
ADDENDUM NO. 1
SBEO/0001/OSBORNE OPA/ADDDM
3/01/95 2:52 jrf
RECORDING REQUESTED BY:
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND WHEN RECORDED RETURN TO:
SABO & GREEN,
a Professional Corporation
Suite 2039
23801 Calabasas Road
Calabasas, California 91302
(Space Above for Recorder's Use)
ADDENDUM NO. 1 TO
OWNER PARTICIPATION AGREEMENT
(OSBORNE COLLECTION OF NORTHPARK - PHASE II)
By and Between
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
and
NORTHPARK BUILDERS, LTD.
A CALIFORNIA LIMITED PARTNERSHIP
ADDENDUM NO. 1 TO
OWNER PARTICIPF.'PION AGREEMENT
(OSBORNE COLLECTION OF NORTHPARR - PHASE II)
THIS ADDENDUM NO. 1 IS ENTERED INTO this day of
March, 1995, by and between the REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO (the "Agency") and Northpark Builders, Ltd. , a
California limited partnership (the "Participant") . Agency and
Participant hereby agree as follows:
RECITALS
WHEREAS, the Redevelopment Plan for the State College
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the City Council of the City of San
Bernardino (the "City") ; and
WHEREAS, the Participant and the Agency have previously
entered into a certain Owner Participation Agreement ("Osborne
Collection of Northpark - Phase II) dated as of , 1994,
(the "Owner Participation Agreement") pertaining to the development
of certain residential properties located within the project area
subject to the Redevelopment Plan; and
WHEREAS, the Owner Participation Agreement provided for
the construction of seventy two (72) single family homes for
occupancy by low- and moderate-income households; and
- 1 -
WHEREAS, the homes to be constructed pursuant to the
Owner Participation Agreement are to be sold at affordable housing
costs as such term is defined in Health and Safety Code
Section 50052 .5 and as may be amended from time to time; and
WHEREAS, pursuant to the terms of the Owner Participation
Agreement, the Agency has agreed to provide certain Agency
Assistance in order to facilitate the sale and marketing of certain
residential lots, provided that said lots are subject to certain
restrictions, all as more fully described in the Owner
Participation Agreement; and
i
WHEREAS, as a result of factors beyond the control of the
parties, the costs associated with the purchase of a home by
prospective low- and moderate-income buyers have exceeded the
levels contemplated under the Owner Participation Agreement and
therefor the Participant has deemed it necessary to provide
additional assistance in order to make the development viable and
marketable under the present economic conditions; and
WHEREAS, the Participant has proposed to deposit with the
Agency certain funds in the amount of
Dollars ($ ) to be used by the Agency to assist prospective
homeowners to acquire properties comprising the Project.
2 -
NOW, THEREFORE, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. Except as hereby supplemented, the Owner
Participation Agreement is in all respects ratified and confirmed
and all of the terms, provisions and conditions thereof, including
covenants as to affordability, shall be and remain in full force
and effect, and this Addendum No. 1 to the Owner Participation
Agreement and all of its terms, provisions and conditions shall be
deemed to be in addition and supplemental to the Owner
Participation Agreement.
Section 2 . Except as otherwise provided herein, all
terms not otherwise defined in this Addendum No. 1 shall have the
same meanings in this Addendum No. 1 as those terms are given in
the Owner Participation Agreement.
Section 3 . In addition to the provision of the Agency
Assistance as provided in Section 202 of the Owner Participation
Agreement, the Participant agrees to deposit with the Agency an
amount equal to Dollars ($ )
(the "Participant Assistance") which shall be administered by the
Agency. The Participant Assistance shall be made available to any
potential low- and moderate-income homebuyers in such amounts as
may be designated by the Participant in order to assist potential
purchasers in financing the acquisition of residential lots. The
only restriction with respect to the use of the Participant
3 -
Assistance will be that any potential homebuyers that avail
themselves of the use of such assistance must (i) qualify as low-
and moderate-income households as such term is defined in Health
and Safety Code Section 50093 and (ii) must execute a no interest
Promissory Note in favor of the Agency, secured by a Deed of Trust
on the applicable residential lot, which Promissory Note will
provide that the Promissory Note shall be immediately due and
payable in full upon any sale, transfer, disposition or lease of
the residential lot to a household that does not qualify as a low-
and moderate-income household. Said Promissory Note and Deed of
Trust shall be in substantially the form of Exhibit "A" and Exhibit
"B" attached hereto and incorporated herein by this reference. Any
additional restrictions as may be contained in the Agency existing
Mortgage Assistance Program other than those set forth in this
Addendum, shall not be applicable to a residential lot as a
condition of receipt of the Participant Assistance.
Section 4 . The Agency shall hold the Participant
Assistance in a separate fund and shall make disbursements, only to
eligible low- and moderate-income households who otherwise intend
to purchase the properties in accordance with the terms of the
Owner Participation Agreement.
4 -
Section 5. The Addendum No. 1 may be simultaneously
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one in the same
instrument.
IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement on the day and date first above shown.
"Agency"
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Tom Minor
Chairman
By:
Secretary
APPROVED AS TO FORM AND
LEGAL CONTENT:
By:
Special Agency Counsel
"Participant"
NORTHPARK BUILDERS, LTD.
a California Limited Partnership
By:
Title:
SBEO\0001\OSBORNE OPA\ADDM
3\01\95\2:52 jf
5 -
EXHIBIT "A"
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
SABO & GREEN )
A PROFESSIONAL CORPORATION )
23801 Calabasas Road )
Suite 2039 )
Calabasas, CA. 91302 )
(Space Above for Recorder' s Use)
PROMISSORY NOTE SECURED BY DEED OF TRUST
$ Place: Development Department
Housing Division
201 North "E" Street
Third Floor
San Bernardino, CA 92401
Date:
FOR VALUE RECEIVED, the undersigned promises to pay to
the Redevelopment Agency of the City of San Bernardino (the
"Agency") or its successors, the sum of
($ ) . Payment of principal shall be made as
follows:
1. This Note shall have a term of thirty (30) years
from the date of execution hereof.
2 . This Note shall accrue no interest during its term.
3 . In the event the property which is subject to the
Deed of Trust securing this Note is sold to a purchaser who does
not qualify as a Low and Moderate Income Household and who is not
acquiring the property at affordable housing cost as described in
the Agreement, then the outstanding principal balance of this Note
shall be deemed immediately due and payable in full.
4 . A failure to pay any sum provided for in this Note
when due or a material breach of this Note, the Agreement which is
the subject of this Note or the Deed of Trust, shall constitute a
breach hereof and shall entitle the Agency to declare all sums due
hereunder immediately due and payable and to pursue all remedies
available under this Note, the Agreement or the Deed of Trust.
available under this Note, the Agreement or the Deed of Trust.
All payments due under this Note shall be made in lawful
money of the United States at the principal office of the Agency,
201 North "E" Street, City Hall Annex, San Bernardino, CA 92401-
1507, or at such other place as may from time to time be designated
by the Agency in writing.
Notwithstanding any language herein to the contrary, this
Note shall become immediately due and payable in the amount of all
unpaid principal upon any transfer in violation of the Agreement of
title of the property described in the Deed of Trust to any person,
firm or corporation other than the undersigned and except as
provided in said Deed of Trust, whether such transfer of title be
voluntary, involuntary, or by operation of law.
The undersigned reserves the right to prepay at any time
all or any part of the principal amount of this Note without the
payment of penalties or premiums. All payments on this Note shall
be applied first to the principal due on the Note and the remaining
balance shall be applied to late charges or penalty interest, if
any.
IN THE EVENT the undersigned shall fail to pay the
payments when due, and if such failure be subsisting thirty (30)
days thereafter, the unpaid principal amount of this Note, together
with any accrued interest and late charges, shall become due and
payable, at the option of the Agency, without notice to the
undersigned. Failure of the Agency to exercise such option shall
not constitute a waiver of such default. If the payments on this
Note are not paid within ten (10) days of the due date, the
undersigned shall pay to the Agency a late charge of 4% on the
amount past due and remaining paid. If this Note be reduced to
judgment, such judgment shall bear the statutory interest rate on
judgments.
In no event shall the interest and late charge payable
hereunder exceed the maximum amount of interest permitted under the
usury laws of the State of California.
If suit is instituted by the Agency to recover on this
Note, the undersigned agrees to pay all costs of such collection
including reasonable attorney' s fees and court costs.
THIS NOTE is secured by a Deed of Trust of even date,
duly filed for record in the office of the County Recorder of the
County of San Bernardino, State of California.
DEMAND, protest and notice of demand and protest are
hereby waived and the undersigned hereby waives, to the extent
authorized by law, any and all homestead and other exemption rights
which otherwise would apply to the debt evidenced by this Note.
EXHIBIT "A" - Page 2
IN WITNESS WHEREOF, THIS NOTE has been duly executed by
the undersigned, as of its date.
By:
EXHIBIT "A" - Page 3
EXHIBIT "B"
RECORDING REQUESTED BY )
AND WHEN RECORDED MAIL TO: )
(Space Above for Recorder' s Use)
DEED OF TRUST WITH ASSIGNMENT OF RENTS
Deed of trust made on 11 1994, by
, hereinafter called "Trustor, " whose
address is
California Attn: , to
, hereinafter referred to as "Trustee" , whose
business address is , California ,
in favor of the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO,
hereinafter referred to as "Beneficiary" , whose business address is
201 North "E" Street, Third Floor, San Bernardino, California
92401.
Trustor irrevocably grants, transfers, and assigns to
Trustee in trust, with power of sale, all that property, including
all easements and rights of way used in connection therewith or as
a means of access thereto, in the City of San Bernardino, County of
San Bernardino, State of California, described as follows:
That certain property located in the City of
San Bernardino, County of San Bernardino, State of California, more
particularly described as:
SEE ATTACHMENT NO. 1
together with the rents, issues and profits thereof, subject
however to the right reserved by Trustor in Paragraph B-16 hereof
to collect and apply such rents, issues and profits, prior to any
default hereunder; for the purpose of securing performance in a
timely manner of all of Trustor's obligations under that certain
Owner Participation Agreement and payment of the indebtedness
evidenced by a Promissory Note executed by Trustor in the principal
sum of ($ ) , payable to
EXHIBIT "B" - Page 1
Beneficiary or order and each extension thereof, both executed in
connection with this Deed of Trust; and performance of each
agreement to Trustor incorporated herein by reference or contained
herein.
A. To protect the security of this Deed of Trust, Trustor agrees:
1. To maintain the property in good condition and
repair; not to remove or demolish any building or improvement
thereon; to complete promptly in workmanlike manner any improvement
hereafter constructed thereon and to restore promptly in
workmanlike manner any improvement thereon that is damaged or
destroyed, and to pay when due all costs incurred therefor or in
connection therewith; to comply with all laws, ordinances,
regulations, covenants, conditions and restrictions affecting the
property; not to commit or permit any waste thereof or any act upon
the property in violation of law or of covenants, conditions or
restrictions affecting the property.
2 . To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; and also, if at any time Beneficiary or
Trustee is a party to or appears in any such action or proceeding,
or in any action or proceeding to enforce any obligation hereby
secured, to pay all cost and expenses paid or incurred by them or
either of them in connection therewith, including, but not limited
to, cost of evidence of title and attorneys' fees in a reasonable
SUM.
3 . To pay (a) at least ten (10) days before
delinquency, all taxes and assessments affecting the property, all
assessment upon water company stock, and all rents, assessments and
charges for water appurtenant to or used in connection with the
property; (b) when due, all encumbrances, charges and liens, with
interest, on the property or any part thereof, which appear to be
prior or superior hereto; and (c) all costs, fees and expenses of
this trust.
4 . If Trustor fails to make any payment or to do any
act as herein provided, then Beneficiary or Trustee (but without
obligation so to do, and with or without notice to or demand upon
Trustor, and without releasing Trustor from any obligation hereof)
may (a) make or do the same in such manner and to such extent as
either deems necessary to protect the security hereof, Beneficiary
or Trustee being authorized to enter upon the property for such
purpose; (b) appear in or commence any action or proceeding
purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; (c) pay, purchase, contest, or compromise
any encumbrance, charge or lien that, in the judgment of either,
appears to be superior hereto; and in exercising any such power,
Beneficiary or Trustee may incur necessary expenses, including
reasonable attorneys' fees.
EXHIBIT "B" - Page 2
5. To pay immediately and without demand all sums
expended hereunder by Beneficiary or Trustee, with interest from
date of expenditure at the annual rate of two percentage points
over Bank of America's published prime rate.
B. It is mutually agreed that:
1. Any award of damages made in connection with the
condemnation for public use of or injury to the property or any
part thereof is hereby assigned and shall be paid to Beneficiary,
who may apply or release such moneys received therefor upon any
indebtedness secured hereby in such order as Beneficiary
determines, or at the option of Beneficiary the entire amount so
received or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or
notice of default hereunder or invalidate any act done pursuant to
such notice.
2 . The acceptance by Beneficiary of any payment less
than the amount then due shall be deemed an acceptance on account
only and shall not constitute a waiver of the obligation of Trustor
to pay the entire sum then due or of Beneficiary's right either to
require prompt payment of all sums then due or to declare default.
The acceptance of payment of any sum secured hereby after its due
date will not waive the right of Beneficiary either to require
prompt payment when due of all other sums so secured or to declare
default for failure so to pay. No waiver of any default shall be
a waiver of any preceding or succeeding default of any kind.
3 . At any time or from time to time, without liability
therefor and with or without notice, upon written request of
Beneficiary and presentation of this deed and the secured note for
endorsement, and without effecting the personal liability of any
person for payment of the indebtedness secured hereby or the effect
of this deed upon the remainder of the property, Trustee may
reconvey any part of the property, consent to the making of any map
or plat thereof, join in granting any easement or join in any
extension agreement or any agreement subordinating the lien or
charge thereof.
4. Upon written request of Beneficiary stating that all
sums secured hereby have been paid, surrender of this deed and the
note to Trustee for cancellation and retention, and payment of its
fees, Trustee shall reconvey, without warranty the property then
held hereunder. The recitals in such reconveyance shall be
conclusive proof of the truthfulness thereof. The grantee may be
designated in such reconveyance as "the person or persons legally
entitled thereto. "
5. Trustor may give such notice to Beneficiary at any
time before there is a Trustee' s sale of the property. At any time
EXHIBIT "B" - Page 3
Trustor is in default in payments to be made to Beneficiary
hereunder, any amounts paid to and received by Beneficiary for
execution of releases pursuant to the terms of this paragraph after
notice of default and election to sell has been recorded shall not,
unless the requirements of Section 2924c of the Civil Code are
fully met by or on behalf of Trustor, waive the right of
Beneficiary to continue its plans to have the property sold, nor
shall they have any effect on the exercise by Beneficiary of the
acceleration privilege contained herein, except to entitle the
person effecting such payment to the release of the property for
which the release amount was paid, and insofar as Beneficiary is
concerned, to constitute a credit against the secured debt.
6. If Trustor or any subsequent owner of the property
covered hereby shall occupy the property, or any part thereof,
after any default in payment of any amount secured by this deed of
trust, Trustor or such owner shall pay to Beneficiary in advance on
the first day of each month a reasonable rental for the premises so
occupied. On failure to pay such reasonable rental, Trustor or
such owner may be removed from the premises by summary
dispossession proceedings or by any other appropriate action of
proceeding.
7 . If default is made in payment of any indebtedness or
in performance of any agreement hereby secured, then Beneficiary,
with or without notice to Trustor, may declare all sums secured
hereby immediately due and payable by instituting suit for the
recovery thereof or for the foreclosure of this deed, or by
delivering to Trustee a written declaration of default and demand
for sale, as well as a written notice of default and of election to
cause the property to be sold, which notice Trustee shall cause to
be filed for record. If such declaration is delivered to Trustee,
Beneficiary shall also deposit with Trustee this deed, the secured
note, and all documents evidencing expenditures secured hereby.
8. Should Trustor, without the consent in writing of
Beneficiary, voluntarily sell, transfer or convey his interest in
the property or any part thereof, or if by operation of law, it be
sold, transferred or conveyed, then Beneficiary may, at its option,
declare all sums secured hereby immediately due and payable.
Consent to one such transaction shall not be deemed to be a waiver
of the right to require such consent to future or successive
transactions.
9. After the time then required by law has elapsed
after recordation of such notice of default, and notice of sale
having been given as then required by law, Trustee, with or without
demand on Trustor, shall sell the property at the time and place
fixed in the notice of sale, either as a whole or in separate
parcels and in such order as Trustee determines, 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 from
EXHIBIT "B" - Page 4
time to time sale of all or any portion of the property by public
announcement at the time and place of sale originally fixed or at
the last preceding postponed time. Trustee shall deliver to the
purchaser its deed conveying the property sold, but without any
covenant or warranty, express or implied. The recitals in such
deed of any matters or facts shall be conclusive proof of the
truthfulness thereof. Trustor, Trustee, Beneficiary or any other
person may purchase at the sale.
10. After deducting all costs, fees and expenses of
Trustee and of this trust, including cost of evidence of title and
reasonable attorneys' fees in connection with sale, Trustee shall
apply the proceeds of sale to payment of (a) all sums expended
under the terms hereof and not theretofore repaid, with accrued
interest at two percentage points over Bank of America' s published
prime rate per annum, and (b) all other sums then secured hereby in
such order as Beneficiary, in the exercise of its sole discretion,
directs. The remainder, if any, shall be paid to the person or
persons legally entitled thereto.
11. Before Trustee' s sale, Beneficiary may rescind such
notices of default and of election to cause the property to be sold
by delivering to Trustee a written notice of rescission, which
notice, when recorded, shall cancel any prior declaration of
default, demand for sale and acceleration of maturity. The
exercise of such a right of rescission shall not constitute a
waiver of any default then existing or subsequently occurring, or
impair the right of Beneficiary to deliver to Trustee other
declarations of default and demands for sale or notices of default
and of election to cause the property to be sold, or otherwise
affect any provision of the secured note or of this deed or any of
the rights, obligations or remedies of Beneficiary or Trustee
hereunder.
12 . Beneficiary may, from time to time as provided by
statute, or by a writing signed and acknowledged by him and
recorded in the office of the county recorder of the county in
which the land or such party thereof as is then affected by this
deed of trust is situated, appoint another trustee in stead and of
Trustee herein named; and thereupon, the Trustee herein named shall
be discharged, and the trustee so appointed shall be substituted as
Trustee hereunder with the same effect as if originally named
Trustee herein.
13 . If two or more persons are designated as Trustee
herein, any or all powers granted herein to Trustee may be
exercised by any of such persons if the other person or persons is
unable, for any reason, to act. Any recital of such inability in
any instrument executed by any of such persons shall be conclusive
against Trustor, his heirs and assigns.
EXHIBIT "B" - Page 5
14 . All leases nor or hereafter affecting the property
are hereby assigned and transferred to Beneficiary by Trustor.
Trustor hereby covenants that none of such leases will be modified
or terminated without the written consent of Beneficiary.
15. When requested to do so, Trustor shall give such
further written assignments of rents, royalties, issues and
profits; of all security for the performance of leases; and of all
money payable under any option to purchase, and shall give executed
originals of all leases, now or hereafter on or affecting the
property.
16. Trustor reserves the right, prior to any default in
payment of any indebtedness or performance of any obligation
secured hereby, to collect all such rents, royalties, issues and
profits, as but not before they become due. Upon any such default,
Trustor' s right to collect such moneys shall cease, not only as to
amounts accruing thereafter, but also as to amounts then accrued
and unpaid. In the event of default, Beneficiary, with or without
notice and without regard to the adequacy of security for the
indebtedness hereby secured, either in person or by agent, or by a
receiver to be appointed by the court, (a) may enter upon and take
possession of the property at any time and manage and control it in
Beneficiary's discretion, and (b) with or without taking
possession, may sue for or otherwise collect the rents, issues and
profits thereof, whether past due or coming due thereafter, and
apply the same, less costs and expenses of operation and
collection, including reasonable attorneys ' fees, upon any
obligation secured hereby and in such order as Beneficiary
determines. None of the aforesaid acts shall cure or waive any
default hereunder or invalidate any act done pursuant to such
notice. Beneficiary shall not be required to act diligently in the
care or management of the property or in collecting any rents,
royalties or other profits that it is hereby authorized to collect,
and shall be accountable only for sums actually received.
17 . Without affecting the liability of Trustor or of any
other party now or hereafter bound by the terms hereof, from time
to time and with or without notice, may release any person now or
hereafter liable for performance of such obligation, and may extend
the time for payment or performance, accept additional security,
and alter, substitute or release any security.
18. In any judicial action brought to foreclose this
deed or to enforce any right of Beneficiary or of Trustee
hereunder, Trustor shall pay to Beneficiary and to Trustee
attorneys ' fees in a reasonable sum, to be fixed by the court.
19. No remedy hereby given to Beneficiary or Trustee is
exclusive of any other remedy hereunder or under any present or
future law.
EXHIBIT "B" - Page 6
20. The pleading of any statute of limitations as a
defense to any and all obligations secured by this deed is hereby
waived, to the full extent permissible by law.
21. In the event of default in the payment of any
indebtedness secured hereby, and if such indebtedness is secured at
any time by any other instrument, Beneficiary shall not be
obligated to resort to any security in any particular order; and
the exercise by Beneficiary of any right or remedy with respect to
any security shall not be a waiver of or limitation on the right of
Beneficiary to exercise, at any time or from time to time
thereafter, any right or remedy with respect to this deed.
22 . Trustor shall, upon request made by Beneficiary,
furnish the Beneficiary with annual statements covering the
operations of the property.
23 . Beneficiary may collect a "late charge" not to
exceed an amount equal to four percent (4%) on the amount past due
and remaining unpaid on any installment that is not paid within ten
(10) days from the due date thereof, to cover the extra expense
involved in handling delinquent payments.
24 . This deed applies to, inures to the benefit of and
binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, successors in interest, and
assigns. The term "Beneficiary" means the owner and holder,
including pledgees, of the note secured hereby, whether or not
named as Beneficiary herein. In this deed, whenever the context so
requires, the masculine gender includes the feminine and neuter,
and the singular number includes the plural, and all obligations of
each Trustor hereunder are joint and several.
25. Trustee accepts this trust when this deed, duly
executed and acknowledged, is made a public record as provided by
law. Trustee is not obligated to notify any party hereto of
pending sale under any other deed of trust or of any action or
proceeding in which Trustor, Beneficiary or Trustee is a party
unless brought by Trustee.
Trustor requests that a copy of notice of default and of
any notice of sale hereunder shall be mailed to him at the address
set out opposite his name, immediately below.
EXHIBIT "B" - Page 7
MAILING ADDRESSES FOR NOTICES:
as Trustor:
Attn:
Executed at San Bernardino, California, on the date first
above written.
By:
By:
Title:
EXHIBIT "B" - Page 8
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On before me, ,
personally appeared ,
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies) , and that by his/her/their signature(s) on the
instrument the person(s) , or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal. (Seal)
Signature
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EXHIBIT "B" - Page 9
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