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HomeMy WebLinkAboutMINUTES - 06271989 - 1.107 1�lv W TO: BOARD OF SUPERVSUPERVISORSFROM: MARK FINUCANE, MA THSERVICES DIRECTOR DATE: June 27, 1989 SUBJECT: Acquisition of Real Property - Assistance to Housing for Independent People, Inc. Project No. 4331 Task: ACQ Account: 4419 SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION I. Recommended Action: A. APPROVE the form of the Note and Deed of Trust (copy attached) as a security device in County's financial assistance for acquisition of real property located at 1859 Clayton Way, Concord, California. B. APPROVE payment of $20, 816 for County's share of said property acquisition and AUTHORIZE the Auditor-Con- troller to issue a check in said amount payable to Chicago Title Company, Escrow No. 55994 to be forwarded to the Real Property Division for delivery. C. DIRECT the Real Property Division to deliver Escrow Instructions requiring said Title Company to retain the above payment amount in escrow until Housing for Independent People, Inc. executes said note and deed of trust and acquires title to property located at 1859 Clayton Way, Concord, California. /� Cont'd on Attachment: XX yes Signature* Q. _ Recommendation of County Administrator Recommendation of Board Committee Approve Other Signature(s) Action of Board on Approved as recommended ?C other Vote of Supervisors X Unanimous (Absent ) I HEREBY CERTIFY THAT THIS Ayes: Noes: IS A TRUE AND CORRECT COPY Absent: Abstain: OF AN ACTION TAKEN AND ENTERED ON THE MINUTES OF THE BOARD OF SUPERVISORS ON DATE SHOWN. JUN 2 7 1989 ATTESTED PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator BY AzntX,eG PBG:rs DEPUTY BO.2 .t6 Orig. Div: Public Works (R/P) cc: County Administrator Auditor-Controller (via R/P) P., W. Accounting Recorder (via R/P) II. Financial Impact: The $20,816 payment amount is funded in the Health Services Department Budget by $18,734 in State Rollover Funds for the Homeless Mentally Disabled [State General Fund Account 4440- 101-001(g) for Targeted Supplemental Homeless Program Funds] received from the State Department of Mental Health and $2, 082 in required County matching funds. The Health Services Department is simultaneously processing the necessary Appropriations Adjustment for Board approval on June 27, 1989, to appropriate the $20,816 into Project No. 4331. III. Reasons for Recommendations/Background: On July 19, 1988, the Board approved the County Mental Health Plan Amendment and Rollover Proposal for Retention of Unexpended FY 1987-88 State Mental Health Funds for Use in FY 1988-89. • This Rollover Proposal included a project under which Housing for Independent People, Inc. (a non-profit California corporation located at 25 East Hedding, San Jose, California) would use State Rollover Funds for the homeless mentally disabled toward the purchase of real property located in Contra Costa County to be used as a licensed board and care home facility for mentally disturbed persons who are homeless and are at risk of becoming homeless. On January 3, 1989, the State Department of Mental Health approved the use of $18,734 in State Rollover Funds for the Homeless Mentally Disabled to be used for this rollover project in FY 1988-89. The attached Note and Deed of Trust have been approved as to form by the Office of the County Counsel. I.io� NO= FOR VALUE RECEIVED, Housing for Independent People, Inc. , a California non- profit corporation ("Trustor") , promises to pay the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("Beneficiary") , or order, at a place designated by the Beneficiary, the sum of TWENTY THOUSAND EIGHT HUNDRED AND SDUEErr DOLLARS and no/100 ($20,816.00) . The indebtedness evidenced by this Note is secured by a Deed of Trust on real property located at 1859 Clayton Way, Concord, California. After five years from the date of execution of this Note, the Trustor may request the Beneficiary to cancel the indebtedness evidenced by this Note. Provided that the Trustor has complied with all of the terms and conditions of this note and is not in default under the Deed of Trust which secures this note, the Beneficiary will cancel said indebtedness, and will return the original Note to the Trustor. This note shall be payable upon the demand of Beneficiary if any of the following events occur: The sale, transfer, hypothecation, assignment or encumbrance, whether voluntary, involuntary or by operation of the law, of all or any part of the subject property or any interest therein, without the prior written consent of the Beneficiary, the Trus- tor's default under the Deed of Trust which secures this note or his failure to fully comply with any of the terms and conditions of the Deed of Trust. The Trustor's default or compliance shall be determined by Beneficiary in the sole discretion of Benefic- iary. If any of these conditions should occur, the Beneficiary may, at its sole option, by written notice to the Trustor, declare all obligations secured hereby immediately due and payable. The Trustor shall notify the Benefic- iary promptly in writing of any transaction or event which may give rise to a right of acceleration hereunder. The Trustor shall pay to the Beneficiary all damages the Beneficiary sustains by reason of the breach of the covenant of notice set forth herein. If action be instituted on this Note the Trustor premises to pay such sum as the Beneficiary may fix as attorney's fees. This note is secured by a Deed of Trust in which the undersigned is named as "Trustor". Trustor agrees to indemnify, defend, save and protect Beneficiary, its officers and employees from all claims, liability, cost and expense, howsoever the same may be caused, for loss or damage to property and for injuries to or death of persons or property arising out of or connected to this agreement or the Deed of Trust which secures this agreement, regardless of any negligence or alleged negligence on the part of Beneficiary, its agents or employees. DATED: HOUSING FOR INDEPENDENT PEOPLE, INC. Signature Title Signature Title APPROVED AS TO FORM THIS DAY OF , 1989. Title Company is hereby authorized to insert the dates corresponding to the date of close of escrow on the original of this document. VICTOR J. WF.STMAN, COUNTY-COUNSEL BY: Deputy Mrs note.t6 Recording Requested By and When Recorded, Return To: County of Contra Costa Department of Public Works Real Property Division 255 Glacier Drive Martinez, CA 94553 Attn: P. B. Gavey DEED OF TRUST The parties of this Deed of Trust, made as of the day of , 1989, are HOUSING FOR INDEPENDENT PEOPLE, INC. , a California non-profit corporation ("Trustor") , CHICAGO TITLE COMPANY, a corporation ("Trustee") , and the COUNTY OF CONTRA COSTA, a political subdivision of the State of California ("Beneficiary") . GRANT' IN n4M Trustor irrevocably grants and assigns to Trustee, in trust, with poser of sale and right of entry and possession, all of that certain real property commonly known as 1859 Clayton Way, in the City of Concord, County of Contra Costa, State of California, as more particularly described on Exhibit A attached hereto and by this reference incorporated herein, together with all easements and other rights now or hereafter made appurtenant thereto, all improvements now or hereafter located thereon, all fixtures, and all additions and accretions thereto. Said real property, appurtenances, improvements, fixtures, additions and accretions are hereinafter called the "Subject Property." "Fixtures" shall include all articles of personal property now or hereafter attached to, place upon for an indefinite term or used in connection with said real property, appurtenances and improvements. Trustor makes the foregoing grant to Trustee to hold the Subject Property in trust for the benefit of Beneficiary, and for the purpose and upon the terms and conditions hereafter set forth. OBLIGATIONS SECURED Trustor mikes the foregoing grant for the purpose of securing: 1. Payment to Beneficiary of all indebtedness evidenced by and arising under a promissory note (the "Note") , dated as of the date hereof, payable to Beneficiary or its order, whether or not any such modifica- tion, extension or. renewal is evidenced by a new or additional prcmis- sory note or notes; 2. Payment of such further sums and/or performance of such further obliga- tions as the then record owner of the Subject Property may undertake to pay and/or perform (whether as principal, surety or guarantor) , for the benefit of Beneficiary, its successors or assigns, when said borrowing and/or obligation is evidenced by a writing or writings reciting that it or they are so secured; 3. Performance of each agreement of Trustor herein contained or in- corporated herein by reference and payment of each fee, cost and expense by Trustor as herein set forth; 4. Any additional obligations set forth in any rider attached hereto and incorporated by this reference herein. TO PROTElCI' THE SECURITY OF THIS DEm OF TRUST, THE PARTIES AGREE AS EIOLiOWS: A. RI2M AND DUTIES OF THE PARTIES. 1. Title. Trustor warrants that, except as otherwise disclosed to Beneficiary in writing, Trustor lawfully holds and possesses the Subject Property in fee simple, free and clear of all liens, encum- 1 brances and other exceptions and without limitations on the right to encumber. 2. Taxes and Assessments. Trustor shall pay, prior to delinquency, all taxes, assessments, reviews and charges imposed by any public or quasi public authority or utility company which are or may become a lien upon the Subject Property, any part of thereof or interest therein. Trustor shall also pay, prior to delinquency, all taxes, assessments, levies and charges imposed by any public authority upon Beneficiary by reason of its interest in the Subject Property created hereby or by reason of any payment, or portion thereof, made to Beneficiary hereunder or pursuant to any obligation hereby secured. Trustor's obligations hereunder may be discharged pursuant to para- graph A.4. 3. Insurance. Trustor shall insure the Subject Property against loss or damage by fire and such other risks as Beneficiary shall from time to time require. Trustor shall carry public liability and other insurance as Beneficiary may require. Trustor shall maintain all required insurance companies, amounts, coverages and forms satisfactory to Beneficiary. neither Beneficiary nor Trustee shall, by reason of accepting, rejecting, approving or obtaining insurance, incur any liability for (i) the existence, nonexistence, form or legal suf- ficiency thereof, (ii) the solvency of any insurer, or (iii) the payment of losses. All such policies or certificates of insurance shall name Beneficiary as the primary loss payee, and they shall also provided that they cannot be terminated, cancelled, lapsed, or modified as to Beneficiary except upon thirty (30) days prior written notice to Beneficiary. Trustor shall deliver the original of all such policies or certificates to Beneficiary, together with receipts satisfactory to Beneficiary evidencing payment of the premiums therefor, except where Beneficiary makes payments as provided in paragraph A.4. 4. Liens and Encumbrances. Trustor shall pay, at or prior to maturity, all obligations secured by or reducible to liens and encumbrances which shall now or hereafter encumber or appear to encumber the Subject Property or any part thereof or interest therein, whether senior or subordinate hereto, including with limitation all claims for work or labor performed, or materials or suppliers furnished, in connection with any work of demolition, alteration, improvement of or construction upon the Subject Property. 5. Disposition of Insurance and Condemnation Proceeds. Trustor assigns to Beneficiary (i) all awards for damages suffered or compensation paid by reason of a taking for public use of, or an action in eminent domain affecting all or any part of, the Subject Property or any, interest therein, and (ii) all proceeds of any insurance policies paid by reason of loss sustained to the Subject Property or any part thereof. Beneficiary ray apply any such sum to any indebtedness or obligation secured hereby and in such order as Beneficiary may, at its sole option, determine. Beneficiary shall be entitled to settle and adjust all claims under insurance polices provided hereunder. However, Beneficiary may, at the absolute discretion of Beneficiary impairment of security, release to Trustor all or any part of the entire amount so collected upon any conditions Beneficiary chooses. Application of all or any portion of said funds, or the release thereof, shall not cure or waive any default or notice of default hereunder or invalidate any acts done pursuant to such notice. 6. Maintenance and Preservation of the Subject Empgrty. (a) Trustor covenants: (i) to keep the Subject Property in good condition and repair; (ii) not to remove or demolish the Subject Property or any part thereof; (iii) to complete or restore promptly and in good workmanlike manner the Subject Property or nay part thereof which may be damaged or destroyed; (iv) to comply with and not suffer violations of (a) all laws, ordinances, regulations and standards, (b) all covenants, conditions, restrictions and equitable servitudes, whether public or private, of every kind and character, and (c) all requirements of insurance companies and any bureau or agency which establishes standards of insurability, which laws, covenants or requirements affect 2 the Subject Property and pertain to acts committed or conditions existing thereon, including without limitation such work of alteration, improvement or demolition as such laws, covenants or requirements mandate; (v) not to commit or permit waste of the Subject Property or any part thereof; (vi) to do all other acts which from the character or use of the Subject Property may be reasonably necessary to maintain, preserve and enhance its value; (vii) to perform all obligations required to be performed in leases, conditional sales contracts or like agreements affecting the Subject Property or the operation, occupation or use thereof (and in the event of default all right, title and interest of Trustor under any such leases, conditional sales contracts or like agreements shall be automatically assigned to Beneficiary hereunder, together with any deposits made in connect@on therewith) ; (viii) not to create any deed of trust or encumbrance upon the Subject Property, except specifically subject to the assignment of rents hereunder and the provisions hereof; (xi) to execute and, where appropriate, acknowledge and deliver such further instruments as Beneficiary or Trustee deems necessary or appropriate to preserve, continue, perfect and enjoy the security provided for herein, including without limitation assignments of Trustor's interest in leases of the Subject Property. (b) Without the prior written consent of Beneficiary, Trustor will not seek, make, or consent to any change in the zoning or conditions of use of the Subject Property. The Trustor will comply with and make all payments required under the provisions of any covenants, conditions, or restrictions affecting the Subject Property, including but not limited to those contained in any declaration and constituent documents of any condominium, cooperative, or planned development project on the Subject Property. Trustor will comply with all existing and future require- ments of all governmental authorities having jurisdiction aver the Subject Property. 7. Defense and Notice of Actions. Trustor shall, without liability, cost or expense to Beneficiary or Trustee, protect, preserve and defend title to the Subject Property, the security hereof and the rights or powers of Beneficiary or Trustee hereunder. Said protection, preserva- tion and defense shall include protection, preservation and defense against all adverse claimants to title or any possessory or non- possessory interest therein, whether or not such claimants or en- cumbrances assert title paramount to that of Trustor or claim their in- terest on the basis of events or conditions arising subsequent to the date hereof. Trustor shall give Beneficiary and Trustee prompt notice in writing of the filing of any such action or proceeding. 8. Books and Records. (a) Trustor will keep adequate books and records of account of the Subject Property and its own financial affairs suffi- cient to permit the preparation of financial statements therefrom in accordance with generally accepted accounting principles. Beneficiary will have the right to examine, copy, and audit Trustor's records and books of account at all reasonable times. If the Subject Property is at any time used for commercial or residential income purposes, Trustor will deliver to Beneficiary, upon request, certified financial statements and profit-and-loss statements for the Trustor and the Subject Property prepared in accordance with generally accepted accounting principles. (b) Trustor will promptly furnish, upon the Beneficiary's request, a duly acknowledged written statement setting forth all amounts due on the indebtedness secured by this Deed of Trust and stating whether any offsets or defenses exist, and containing such other matters as Beneficiary may reasonably required. 9. Collection of Rents, Issues and Profits. Beneficiary confers upon Trustor the authority to collect and retain rents, issues and profits resulting from the use of the Subject property as a residential facility for the developmentally disabled as they become due and payable; provided, however, that Beneficiary may revoke said authority and collect and retain the rents, issues and profits of the Subject Property assigned herein to Beneficiary upon default by Trustor 3 hereunder or under any of the obligations secured hereby, and without taking possession of all or any part of the Subject Property. The right to collect rents and profits as herein provided shall not grant to Beneficiary or Trustee the right to possession, except as expressly herein provided; nor shall said right impose upon Beneficiary or Trustee the duty to produce rents or profits or maintain the Subject Property in whole or in part. Beneficiary may apply, in its sole discretion, any rents, issues and profits collected against any indebtedness secured hereby or any obligations of Trustor arising hereunder or any other obligations of Trustor to Beneficiary, whether existing on the date hereof or hereafter arising. Collection of any rents, issues and profits by Beneficiary shall not cure or waive any default or notice of default hereunder or invalidate any acts done pursuant to such notice. 10. Right of Inspection. Beneficiary, its agents, contractors and employ- ees, may enter the Subject Property at any reasonable time for the purpose of inspecting the Subject Property and ascertaining Trvstor's compliance with the terms hereof. 11. Acceptance of Trust; Notice of Indemnification. Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, becomes 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 shall be a party unless Trustee brings such action. Trustee shall not be obligated to perform any act required of it hereunder unless the performance of such act is requested in writing and Trustee is reason- ably indemnified against loss, cost, liability and expense. 12. Powers of Trustee. From time to time upon written request of Benefici- ary and presentation of this Deed of Trust for endorsement, and without affecting the personal liability of any person for payment of any indebtedness or performance of the obligation secured hereby, Trustee may, without liability therefor and without notice, reconvey all or any part of the Subject Property, consent to the making of any map or plat thereof, join in granted any easement thereon, join in any declaration of covenants and restrictions, or join in any extension agreement or any agreement subordinating the lien or charge hereof. Trustee or Beneficiary may from time to time apply to any court of competent jurisdiction for aid and direction in the execution of the trusts hereunder and the enforcement of the rights and remedies available hereunder, and Trustee or Beneficiary may obtain orders or decrees directing or confirming or approving acts in the execution of said trusts and the enforcement of said remedies. Trustee has no obligation to notify any party of any pending sale or any action or proceeding unless held or cmm)enced and maintained by Trustee reasonable compensa- tion and reimbursement for services and expenses in the administration of the trust created hereunder, including reasonable attorney's fees. Trustor indemnifies Trustee and Beneficiary against all losses, claims, demands and liabilities (except loss, claims, demands or liabilities arising from the sole negligence of the indemnified party) which either may incur, suffer, or sustain in the execution of the trusts created hereunder or in the performance of any act required or permitted hereunder or by law. 13. Substitution of Trustees. From time to time, by a writing signed and acknowledged by Beneficiary and recorded in the Office of the Recorder of the county in which the Subject Property is situated, Beneficiary may appoint another trustee to act in the place and stead of Trustee or any successor. Such writing shall refer to this Deed of Trust and set forth the date, book and page of its recordation. The recordation of such instrument of substitution shall discharge Trustee herein named and shall appoint the new trustee as the trustee hereunder with the same effect as if originally named Trustee herein. A writing recorded pursuant to the provisions of this paragraph shall be conclusive proof of the prcper.substitution of such new trustee. 14. Acceleration Upon Sale or knciunbrance. Upon sale, transfer, hypotheca- tion, assigrment or encumbrance, whether voluntary, involuntary or by 4 operation of law, of all or any part of the subject property or any interest therein, without the prior written consent of Beneficiary, then Beneficiary may, at its sole option, by written notice to Trustor, declare all obligations secured hereby immediately due and payable, except to the extent that such acceleration, and in such particular circumstances where exercise of such a right by Beneficiary, is prohibited by law. The provisions hereof shall prevail notwithstanding any contrary provisions hereof in any note or other instrument which evidences the obligations hereby secured. Trustor shall notify Beneficiary promptly in writing of any transaction or event which may give rise to a right of acceleration hereunder. In addition to other damages and costs resulting from Trustor's breach of Trustor's obliga- tions under this paragraph, Trustor acknowledges that failure to give such notice may damage Beneficiary in an amount equal to not less than the difference between the interest payable on the obligations hereby secured and the interest which Beneficiary could obtain on said sum on the date when the event of acceleration occurred". Trustor shall pay to Beneficiary all damages Beneficiary sustains by reason of the Breach of the covenant of notice set forth herein. 15. Reconveyance. Upon Beneficiary's written request, and upon surrender to Trustee for cancellation of this Deed of Trust and any note, instrument or instruments, setting forth all obligations secured hereby, Trustee shall reconvey, without warranty, the subject Property or that portion thereof then held hereunder. The recitals of any matters or facts in any reconveyance executed hereunder shall be conclusive proof of the truthfulness thereof. To the extent permitted by law, the reconveyance may describe the grantee as "the person or persons legally entitle thereto." Neither Beneficiary nor Trustee shall have any duty to determine the rights of persons claiming to be rightful grantees of any reconveyance. Mien the Subject Property has been fully reconveyed, the last such reconveyance shall operate as a reassignment of all future rents, issues and profits of the Subject Property to the persons or persons legally entitled thereto, unless such reconveyance expressly provides to the contrary. 16. Additional Liens. Trustor shall obtain the prior written consent of the Beneficiary prior to entering into agreements or obligations secured by or reducible to liens or encuLTbrances on the Subject Property, whether senior or subordinate hereto. B. DEFAULT PROVISIONS 1. Events of Default. The occurrence of any of the following events shall be deemed an event of default ("Event of Default") hereunder and shall entitle Beneficiary and Trustee to exercise their remedies hereunder or as otherwise provided by law: a. Default by Trustor in making payment, as and when due, any obligation secured or imposed hereby, or any part thereof; or default by Trustor in performing any of its covenants or obliga- tions hereunder or under any of the Loan Documents; b. (i) Trustor shall: (A) admit in writing its inability to pay its debts generally as they become due; (B) file a petition in bankruptcy or petition to take advantage of any insolvency act; (c) make an assignment for the benefit of creditors; (D) consent to, or acquiesce in, the appointment of a receiver, liquidator, trustee, sequestrator or other similar official of itself or of the whole or any substantial part of its properties or assets; (E) file a petition or answer seeing reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the federal bankruptcy laws or any other applicable laws; or (ii) (A) a court of competent jurisdiction shall enter an order, judgment or decree appointing a receiver, liquidator, trustee, sequestrator or other similar official of Trustor, or of the whole •or any substantial part of the property or assets of Trustor, and such order, judgment or decree shall remain un- vacated, or not set aside, or unstayed for thirty (30) days, or 5 (B) a petition shall be filed against it seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the federal bankruptcy laws or any other applicable law and such petition shall remain undismissed for thirty (30) days, or (C) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of Trustor or of the whole or any substantial part of its property or assets, and such custody or control shall remain unterminated or unstayed for thirty (30) days; or (iii) an attachment or execution is levied against any substantial portion of the property of Trustor or against any portion of the Subject Property and is not discharged within (30) days. (C) the events of default set forth in Section B.12 of this agreement occur. 2. Rights and Remedies. At any time after the occurrence of an Event of Default, Beneficiary and Trustee shall each have the following rights and remedies; (a) With or without notice, to declare all obligations secured hereby immediately due and payable. (b) With or without notice, and without releasing Trustor from any obligation hereunder, to cure any default of Trustor and, in connection therewith, to enter upon the Subject Property and to do such acts and things as Beneficiary or Trustee deem necessary or desirable to protect the security hereof, including without limitation to appear in and defend any action or proceeding purporting to affect the security hereof or the rights of powers of Beneficiary or Trustee hereunder; to pay, purchase, contest or compromise any encumbrance, charge, lien or claim of lien which, in the judgment of either Beneficiary or Trustee, is prior or superior hereto, the judgment of Beneficiary or Trustee being conclusive as between the parties hereto; to pay any premiums or charges with respect to insurance required to be carried hereunder; and to employ counsel, accountants, contractors and other appropriate persons to assist them. (c) To commence and maintain an action or actions in any court of competent jurisdiction to foreclose this instrument as a mortgage or to obtain specific enforcement of the covenants of Trustor hereunder, and Truster agrees that such covenants shall be specifically enforceable by injunction or any other appropriate equitable remedy and that for the purposes of any suit brought under this subparagraph, Trustor waives the defense of latches and any applicable statute of limitations; (d) Beneficiary or its employees, acting by themselves or through a court-appointed receiver may enter upon, possess, manage and operate the Subject Property or any part thereof; make terminate, enforce or modify leases of the Subject Property upon such terms and conditions as Beneficiary deems proper; and/or make repairs, alterations and improvements to the Subject Property necessary, in Trustee's or Beneficiary's judgment, to protect or enhance the security hereof. All sums realized by Beneficiary under this subparagraph, less all costs and expenses incurred by it under this subpara- graph, including attorney's fees, and less such stuns as Beneficiary deems appropriate as a reserve to meet future expenses under the subparagraph, shall be applied on any indebtedness secured hereby in such order as Beneficiary shall determine. Neither application of said sums to said indebtedness nor any other action taken by Beneficiary under this subparagraph shall sure or waive any default or notice of default hereunder or nullify the effect of any such notice of default. Beneficiary or Trustee, or any employee or agent of Beneficiary of Trustee, or a receiver appointed 6 by a court, may take any action or proceeding hereunder without regard to (i) the adequacy of the security for the indebtedness secured hereunder, (ii) the existence of a declaration that the indebtedness secured hereby has been declared immediately due and payable, or (iii) the filing of a notice of default. (e) To execute a written notice of such default and of its election to cause the Subject Property to be sold to satisfy the • obligations secured hereby. Trustee shall give and record such notice as the law then requires as a condition precedent to a Trustee's sale. When the minimum period of time required by law after such notice has elapsed, Trustee, without notice to or demand upon Trustor except as otherwise required by law, shall sell the Subject Property at the time and place of sale fixed by it in the notice of sale, either as a whole or in separate parcels and in such order as it or Beneficiary may determine, at public auction to the highest bidder for cash, in lawful money of the United States, payable at the tim of sale (the obligations hereby secured being the equivalent of cash for purposes of said sale) . Trustor shall have no right to direct the order in which the Subject Property is sold. Trustee may postpone sale of all or any portion of the Subject Property by public announcement at such time and place of sale, and from time to time there- after may postpone such sale by public announcement at such time fixed by the preceding postponement. Trustee shall deliver to the purchaser at such sale a deed conveying the Subject Property or portion thereof so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustee.. Trustor or Beneficiary, may purchase at such sale. After deducting all costs, fees and expenses of Trustee and of this trust, including all costs of evidence of title and attor- neys' fees in connection with sale, Trustee shall apply the proceeds to sale to payment of all sums so expended under the terms hereof not then repaired, with accrued interest at a rate equal to five percent (5%) above the interest rate a set forth in the Note (the "Default Rate") , the payment of all other sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto; and (f) To resort to and realize upon the security hereunder and any other security now or hereafter held by Beneficiary in such order and manner as Trustee and Beneficiary or either of them may, in their sole discretion, determine; and resort to any or all such security may be taken concurrently or successive- ly and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both. 3. Payment of Costs, Expenses and Attorneys' Fees. All costs and expenses incurred by Trustee and Beneficiary pursuant to subpara- graphs (a) through (f) inclusive of paragraph 2 (including without limitation court costs and attorney's fees, whether incurred in litigation or not) shall bear interest at the Default Rate, from the date of expenditure until said sums have been paid. Benefic- iary shall be entitled to bid, at the sale of the Subject Property held pursuant to subparagraph (e) above, the amount of said costs, expenses and interest in addition to the amount of the other obligations hereby secured as a credit bid, the equivalent of cash. 4. Remedies Cumulative. All rights and remedies of Beneficiary and Trustee hereunder are cumulative and in addition to all rights and remedies provided by law. 5. Releases Extensions, Modifications and Additional Security. Without affecting the liability of any person for payment of any indebtedness secured hereby, or the lien or priority of this Deed 7 of Trust upon the Subject Property, Beneficiary may, from time to time, with or without notice, do one or more of the following: Release any person's liability from the payment of an indebtedness secured hereby, make any agreement or take any action extending the maturity or otherwise altering the terms or increasing the amount of any indebtedness secured hereby, and accept additional security or release all or a portion of the Subject Property and/or other security held to secure the indebtedness secured hereby. 6. Marshalling. Trustor hereby waives any right to require that any security given hereunder or under any other agreement securing the obligation secured hereby be marshalled and further waives any right otherwise available in respect to marshalling of assets which secure any obligation secured or imposed hereby or to require Beneficiary to pursue its remedies against any such assets. C. MISCELIANEOUS PROVISIONS. 1. Non-Waiver. By accepting payment of any sum secured hereby after its due date or late performance of any obligation secured hereby, Beneficiary shall not waive its right against any person obligated directly or indirectly hereunder; or on any obligation hereby secured, either to require prompt payment or performance when due of all other sums and obligations so secured or to declare default for failure to make such prompt payment or performance. No exercise of any right or remedy by Beneficiary or Trustee hereunder shall constitute a waiver of any other right or remedy herein contained or provided by law. 2. Further Assurances. Trustor shall, upon demand by Beneficiary or Trustee, execute, acknowledge (if appropriate) and deliver any and all documents and instruments and do or cause to be done all further acts necessary or appropriate to effectuate the provisions hereof. 3. Statements of Conditions. From time to time as required by law, Beneficiary shall furnish to Trustor such statement as may be required concerning the condition of the obligations secured hereby. Upon demand by Beneficiary, Trustor covenants and agrees to pay Beneficiary's costs incurred in furnishing such statement, but not in excess of the maximum amount allowed by law. 4. Attorney's Fees. In the event legal action is commenced to enforce or interpret any provision hereof or rights hereunder, the prevailing party herein shall be entitled to collect from the party not prevailing all costs and expenses, including attorneys' fees, incurred by such prevailing party. 5. Obligations of Trustor Joint and Several. If more than one person has executed this Deed of Trust as "Trustor", the obligations of all such •persons hereunder, shall be joint and several. 6. Recourse to Separate Property. Any. married person who executes this Deed of Trust as a Trustor agrees that Beneficiary or Trustee may have recourse hereunder against his or her separate property and any community property in which he or she has an interest, whether or not such property is part of the Subject Property, to the extent permitted by law. 7. Trustor and Beneficiary Defined. The term "Trustor" herein includes both the original Trustor and any subsequent owner or owners of any of the Subject Property, and the term "Beneficiary" includes the original Beneficiary and also any future owner or holder, including pledges and participants, of that certain Promissory Note of even date herewith referred to above or any interest therein. 8 8. Rules of Construction. When the identify of the parties hereto or other circumstances make it appropriate the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. Specific enumeration of rights, powers and remedies of Trustee and Beneficiary and of acts which they may do and acts Trustor must or must not do shall not exclude or limit the general. The headings of each paragraph are for information and convenience and do not limit or construe the contents of any provision hereof. 9. Severability. If any term of this Deed of Trust, or the applica- tion thereof to any persons or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this Deed of Trust, or their application of such term to persons or cir- cumstances other than those as to which it is invalid or un- enforceable, shall not be affected thereby, and each term of this Deed of Trust shall be valid and enforceable to the fullest extent permitted by law. 10. Successors in Interest. The terms, covenants, and conditions herein contained shall be binding upon and inure to the benefit of the heirs, successors and assigns of the parties hereto. 11. Request for Notice. In accordance with California Civil Code Section 2924b, Trustor hereby requests that a copy of any notice of default and/or notice of sale filed pursuant hereto be mailed to Trustor at the address set forth below opposite Trustor's signature. Failure to insert an address shall constitute a waiver of the right to receive a copy of a notice of default and/or notice of sale. 12. Certain Events of Default. Trustor will be in default hereunder upon nonperformance of any payments or obligations imposed by this Deed of Trust or any of the Loan Documents, and Trustor will also be in default hereunder if: (a) Trustor terminates or suspends its project for "facility renovation/remodeling/property purchase for the homeless/men- tally disabled", or operation of such facility, as approved by the State Department of Mental Health in their letter of approval to Contra Costa County, dated January 3, 1989; or (b) A default occurs under any agreement which guarantees any part of the indebtedness or obligations secured by this Deed of Trust; or (c) Any representation or disclosure made to Beneficiary by Trustor or disclosure made to Beneficiary by Trustor or by any guarantor of any indebtedness or obligation secured by this Deed of Trust provides to be materially false or misleading on the date as of which made, whether or not that representation or disclosure appears in this Deed of Trust; or (d) Any other event occurs which, constitutes a default by Trustor or gives Beneficiary the right to accelerate the maturity of any part of the indebtedness secured by this Deed of Trust. 9 13. Headings. The headings of the articles of this Deed of Trust are for convenience only and do not limit its provisions. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust on the day and year set forth above. TRUSTOR PLEASE NOTE: IN THE EVENT OF YOUR DEFAULT, CALIFORNIA PROCEDURE PERMITS THE TRUSTEE TO SELL THE SUHTECr PROPERTY AT A SALE HELD WITHOUT SUPERVISION BY ANY COURT AFTER EXPIRATION OF A PERIOD PRESCRIBED BY LAW. SEE PROVISION B.2. (2) ABOVE FOR A DESCRIPTION OF THIS PROCEDURE. UNLESS YOU PROVIDE AN ADDRESS FOR THE GIVING OF NOTICE, YOU MAY NOT BE ENTITLED TO OTHER NOITCE OF THE OOMMENCMENT OF SALE PROCEEDINGS. BY EXECUTION OF THIS DEED OF TRUST, YOU CONSENT TO SUCH PROCEDURE. IF YOU HAVE ANY QUESTIONS CONCERNING IT, YOU SHOULD CONSULT YOUR LEGAL ADVISOR. BENEFICIARY URGES YOU TO GIVE IT PROMPT NOTICE OF ANY CHANGE IN YOUR ADDRESS SO THAT YOU MAY RECEIVE PROMPTLY ANY NOTICE GIVEN PURSUANT TO THIS DEED OF TRUST. ,Trustor Address Housing for Independent 1859 Clayton Way People, Inc. , a California Concord, CA non-profit corporation Signature Title Signature Title STATE OF CALIFORNIA ) ss ACKNOWLEDGEMENT COUNTY OF CONTRA COSTA ) The person(s) signing above for the Trustor, personally ]mown to me in individual and business capacity(s) as stated, personally appeared before me today and acknowledged that he/she/they executed this Deed of Trust on behalf of the Trustor, and acknowledged to me that the Association executed it pursuant to its by-laws or a resolution of its Board of Directors. Dated: Notary Public (NOTARIAL SEAL) PBG:rs dot June 13, 1989 10 J M—M--BIT A All that certain real property located in the City of Concord, County of Contra Costa, State of California more particularly described as follows: The land referred to in this report is situated in the State of California, County of Contra Costa and is described as follows: CITY OF CONCORD Portion of Lot 212 as shown on the map of R. N. Burgess Company's Map No. 2, Walnut Lands filed March 21, 1911 in Book 4 of Maps at page 92 in the Office of the Recorder of Contra Costa County described as follows: Commencing at the northwest corner of Lot 211 as shown on R. N. Burgess Company's Map No. 2 Walnut Lands, filed March 21, 1911; thence from said point of commencement north 10 52' west 10 feet; thence parallel with the north line of said lot, north 880 08' east 210.88 feet to the actual point of beginning for this description; thence from said point of beginning north 10 25' west, 48 feet; thence on a direct line to a point in the center of Clayton Way as shown on said map which bears north 470 23' west, 538.39 feet from the intersection of the center line of said Clayton Way and the center line of Wren Avenue as shown on said map, said point is also distant south 470 23' east 80 feet from the northerly line of parcel two, described in the deed to Lynn W. Eaton, et ux. , recorded March 1, 1943 Book 715, page 256, Contra Costa County records; thence along said center line of Clayton Way south 470 23' east, 188.73 feet; thence south 880 08' west, 278.48 feet to the point of beginning. Assessor's Parcel No. 114-432-025 PBG:rs dot June 13, 1989 11