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HomeMy WebLinkAboutResolution - 2005-R0188 - Deed Of Trust - City View Christian Fellowship - 04_28_2005 (2)Resolution No. 2005-RO188 April 28, 2005 Item No. 38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Deed of Trust between the City of Lubbock and City View Christian Fellowship. Said Deed of Trust is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 28t:h d, ATTEST: Rebecca Garza, City Secretary APPROVED AS TO CONTENT: Hertel, CAy Engineer Lee Ann Dumbauld, C ief Financial Officer APPROVED AS TO FORM: Richard K. Casner First Assistant City Attorney r ml/ccdocs/Milwaukee Paving.City View Christian,Deed of Trust.res April 28, 2005 1-43 Resolution No. 2005-RO188 Deed of Trust Terms Date: April 28, 2005 Grantor: CHRISTIAN CITY VIEW FELLOWSHIP, a Texas tax-exempt nonprofit corporation Grantor's Mailing Address: City View Christian Fellowship P.O. Box 93657 Lubbock, TX 79423 Trustee: Lee Ann Dumbauld Trustee's Mailing Address: City of Lubbock Attn: Lee Ann Dumbauld P.O. Box 2000 Lubbock, TX 79457 Contractual Obligee ("Obligee"): CITY OF LUBBOCK Obligee's Mailing Address: P.O. Box 2000 Lubbock, TX 79457 Obligation: The contractual obligations of Grantor, including without limitation, the Obligation to pay to Obligee the sum of Three Hundred Forty Thousand and Five Hundred Sixty -Two Dollars ($340,562), with interest, as set forth by that certain Development Agreement for Design and Construction of Milwaukee Avenue, executed April 28, 2005, (the "Development Agreement's by and between Grantor and Obligee, the obligations being more particularly described therein, and incorporated herein by reference. Subordination: At the request of Grantor, Obligee will subordinate the lien created by this Deed of Trust to the lien created by that certain bond issue (the promissory note or notes, lien, bond and/or trust indenture, deed of trust and any other documentation executed and/or delivered in connection with the below described bond issue, are collectively referred to herein as the "Third Party Lien'), being described as "Christian City View Fellowship, Issuer, First Mortgage Bonds, 2005 Series, Reliance Trust Company, as Trustee for First Mortgage Bondholders, a bank and trust company organized and existing under the laws of the State of Georgia, and San Joaquin Bank, a corporation, duly organized and existing under the laws of the State of California as co - beneficiaries" (collectively, the "Bond Trustee'), such funds to be solely utilized by Grantor to construct improvements on the Property, as defined below. Property (including any improvements): Being described on Exhibit "A," attached hereto and made a part hereof for all purposes. For value received, the receipt and sufficiency of which is hereby acknowledged, and to secure payment and performance of the Obligation, Grantor conveys the Property to Trustee in trust. Grantor warrants and agrees to defend the title to the Property. On payment and performance of the Obligation and all other amounts secured by this deed of trust, this deed of trust will have no further effect, and Obligee will release it at Grantor's expense. Clauses and Covenants A. Grantor's Obligations Grantor agrees to — I. keep the Property in good repair and condition; 2. pay all taxes and assessments on the Property before delinquency; 3. defend title to the Property and preserve the lien's priority as it is established in this deed of trust; 4. maintain, in a form acceptable to Obligee, an insurance policy that a. covers all improvements for their full insurable value as determined when the policy is issued and renewed, unless Obligee approves a smaller amount in writing; b. contains an 80 percent coinsurance clause; C. provides all-risk coverage; d. protects Obligee with a standard mortgage clause; e. provides flood insurance at any time the Property is in a flood hazard area; and f. contains such other coverage as Obligee may reasonably require; 5. comply at all times with the requirements of the 80 percent coinsurance clause; 6. deliver the insurance policy to Obligee within ten (10) days of the date of this deed of trust and deliver renewals to Obligee at least fifteen (15) days before expiration; 7. obey all laws, ordinances, and restrictive covenants applicable to the Property; 8. keep any buildings occupied as required by the insurance policy; and 9. promptly notify Obligee in writing of any change of address. B. Obligee's Rights 1. Obligee may appoint, at any time and from time to time, in writing a substitute trustee, succeeding to all rights and responsibilities of Trustee. The appointment of a substitute trustee shall be at the discretion of Obligee. 2. Obligee may apply any proceeds received under the insurance policy either to reduce the Obligation or to repair or replace damaged or destroyed improvements covered by the policy. 3. Notwithstanding the terms of the Obligation to the contrary, and unless applicable law prohibits, all payments received by Obligee from Grantor with respect to the Obligation or this deed of trust may, at Obligee's discretion, be applied first to amounts payable under this deed of trust and then to amounts due and payable to Obligee with respect to the Obligation, to be applied to late charges, principal, or interest in the order Obligee in its discretion determines. 4. If Grantor fails to perform any of Grantor's obligations, Obligee may perform those obligations and be reimbursed by Grantor on demand for any amounts so paid, including attorney's fees, plus interest on those amounts from the dates of payment at the rate stated in the Development Agreement for matured, unpaid amounts. The amount to be reimbursed will be secured by this deed of trust. 5. If there is a Default, as hereinafter defined, on the Obligation or if Grantor fails to perform any of Grantor's obligations and the Default continues after any required notice of the Default and the time allowed to cure, Obligee may, at its option — (a) remedy the Default by taking any action necessary to do so, including, without limitation, making any payments on principal, interest, penalties, and attorney's fees with respect to any prior lien debt, payment of insurance premiums, payment of taxes and assessments, or any other action that Obligee deems necessary to protect the lien created by this deed of trust. Any sums so paid shall bear interest from the dates of the payment at 6.75 percent per year, shall be paid by Grantor on demand, and shall become a part of the debt secured by this deed of trust and recoverable as such in all respects; (b) declare all sums, including the unpaid balance and earned interest on the Obligation and further secured by this deed of trust, immediately due, and shall demand payment by either a written demand served personally on Grantor or mailed to Grantor at P.O. Box 93657, Lubbock, Texas 79423; and/or (c) direct Trustee to foreclose this lien as provided herein. 6. Obligee may remedy any Default without waiving it and may waive any Default without waiving any prior or subsequent Default. C. Trustee's Rights and Duties 1. If after Default, the debt is declared due, the Trustee, or Trustee's successor or substitute as provided herein, shall enforce this trust by foreclosing the lien, if requested to do so by Obligee or Obligee's agent. In foreclosing the lien, Trustee, personally or by agent, shall do the following — (a) Advertise the time, place, and terms of the sale of the Property for twenty-one (21) days prior to the day of sale by posting written notices on the courthouse door, or at another place as may be designated for such notices to be posted, of each county in which the Property is situated. (b) File these notices in the office of the county clerk of each county in which the Property is situated at least twenty-one (21) days prior to the proposed sale date. (c) Send written notice of the time, place, and terms of the sale of the Property by certified mail to each person obligated to pay the debt secured by this Deed of Trust according to the records of Obligee at least twenty-one (21) days preceding the date of the sale at the most recent address as shown by the records of Obligee. (d) Sell the Property "AS IS" at public auction in accordance with the notice at the courthouse door, or at other such place as may be designated by the county, of the county in which the Property is situated (provided when the Property is situated in more than one county, the Property may be sold at the courthouse door, or other place designated by said county, of any one of these counties, and the notices shall designate the county where the Property will be sold), on the first Tuesday in any month between the hours of 10:00 a.m. and 4:00 p.m., to the highest bidder for cash, selling all of the Property as an entirety or in such parcels as the Trustee may elect. (e) Convey title to the Property to the purchaser or purchasers, with general warranty binding Grantor, Grantor's heirs, personal representatives, successors, and assigns, but 'without representation or warranty, express or implied, by Trustee; (f) From the proceeds of the sale, pay in this order: (i) All the expenses of advertising the sale and making the conveyance. (ii) To Obligee the full amount of principal, interest, attorney's fees, and other charges due and unpaid on the Obligation, pursuant to the Development Agreement, and all other debt secured hereby. (iii) Any amounts required by law to be paid before payment to Grantor (iv) The balance of the sales price, if any, to Grantor, Grantor's heirs, personal representatives, successors, and assigns. D. General Provisions 1. In case the lien shall be foreclosed by Trustee's sale or by judicial action, the purchaser at the sale shall receive immediate possession of the Property as an incident to the purchaser's ownership. Grantor agrees that if Grantor or anyone claiming under Grantor shall hold possession of the Property, or any part of it, subsequent to foreclosure, the party or parties holding possession shall be considered as tenants at sufferance of the purchaser at the foreclosure sale, and shall be subject to an action for forcible detainer. 2. Recitals in any trustee's deed conveying the Property will be presumed to be true as to the matters therein stated, and all prerequisites to the sale shall be presumed to have been performed. The sale and conveyance shall be conclusive against Grantor, Grantor's heirs, personal representatives, successors, and assigns. Obligee may be a purchaser at any such foreclosure sale, and on being the highest bidder, may have the amount for which the Property is sold credited on the debt secured by this deed of trust. 3. Proceeding under this deed of trust, filing suit for foreclosure, or pursuing any other remedy will not constitute an election of remedies. 4. This lien will remain superior to liens later created even if the time of payment or performance of all or part of the Obligation is extended or part of the Property is released. 5. If any portion of the Obligation cannot be lawfully secured by this deed of trust, payments will be applied first to discharge that portion. 6. Grantor assigns to Obligee all amounts payable to or received by Grantor from condemnation of all or part of the Property, from private sale in lieu of condemnation, and from damages caused by public works or construction on or near the Property. After deducting any expenses incurred, including attorney's fees and court and other costs, Obligee will either release any remaining amounts to Grantor or apply such amounts to reduce the Obligation. Obligee will not be liable for failure to collect or to exercise diligence in collecting any such amounts. Grantor will immediately give Obligee written notice of any actual or threatened proceedings for condemnation of all or part of the Property. 7. Grantor assigns to Obligee absolutely, not only as collateral, all present and future rent and other income and receipts from the Property. Grantor warrants the validity and enforceability of the assignment. Grantor may as Obligee's licensee collect rent and other income and receipts as long as Grantor is not in default with respect to the Obligation or this deed of trust. Grantor will apply all rent and other income and receipts to payment and performance of the Obligation and performance of this deed of trust, but if the rent and other income and receipts exceed the amount due with respect to the Obligation and the deed of trust, Grantor may retain the excess. If Grantor defaults in payment of the Obligation or performance of this deed of trust, Obligee may terminate Grantor's license to collect rent and other income and then as Grantor's agent may rent the Property and collect all rent and other income and receipts. Obligee neither has nor assumes any obligations as lessor or landlord with respect to any occupant of the Property. Obligee may exercise Obligee's rights and remedies under this paragraph without taking possession of the Property. Obligee will apply all rent and other income and receipts collected under this paragraph first to expenses incurred in exercising Obligee's rights and remedies and then to Grantor's obligations with respect to the Obligation and this deed of trust in the order determined by Obligee. Obligee is not required to act under this paragraph, and acting under this paragraph does not waive any of Obligee's other rights or remedies. If Grantor becomes a voluntary or involuntary debtor in bankruptcy, Obligee's filing a proof of claim in bankruptcy will be deemed equivalent to the appointment of a receiver under Texas law. 8. Interest on the debt secured by this deed of trust will not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law. Any interest in excess of that maximum amount will be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess will be canceled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the debt or, if the principal of the debt has been paid, refunded. This provision overrides any conflicting provisions in this and all other instruments concerning the debt. 9. In no event may this deed of trust secure payment of any debt that may not lawfully be secured by a lien on real estate or create a lien otherwise prohibited by law. 10. When the context requires, singular nouns and pronouns include the plural. 11. The term Obligation includes, but is not limited to, all extensions, modifications, and renewals of the Development Agreement and all amounts and performances secured by this deed of trust. 12. The term Default includes, but is not limited to, the occurrence of any of the following events: (a) The failure of Grantor to pay the debt or otherwise perform the Obligation secured by this deed of trust or any part of it, as they become due according to the terms of the Development Agreement, or when accelerated, pursuant to any power to accelerate. (b) The failure of Grantor punctually and properly to perform the Obligation or any other covenant, agreement, or condition contained in this deed of trust or the Development Agreement. (c) The failure of Grantor punctually and properly to perform any covenant, agreement or condition contained in, or otherwise be in default under, the Third Party Lien. 13. This deed of trust binds, benefits, and may be enforced by the successors in interest of all parties. 14. Grantor and each surety, endorser, and guarantor of the Obligation waive all demand for payment, presentation for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, protest, and notice of protest, to the extent permitted by law. 15. Grantor agrees to pay reasonable attorney's fees, trustee's fees, and court and other costs of enforcing Obligee's rights under this deed of trust if this deed of trust is placed in the hands of an attorney for enforcement. 16. If any provision of this deed of trust is determined to be invalid or unenforceable, the validity or enforceability of any other provision will not be affected. 17. Grantor represents that this deed of trust is given and granted to secure the contractual obligations of Grantor under the Development Agreement. The Development Agreement provides for, among other things, the payment by Grantor of funds due to Obligee regarding the costs associated with the paving, drainage, water, and sewer infrastructure related to the Milwaukee Project, as defined in the Development Agreement. 18. Grantor agrees to execute, acknowledge, and deliver to Obligee any document requested by Obligee, at Obligee's request from time to time, to (a) correct any defect, error, omission, or ambiguity in this deed of trust or in any other document executed in connection with the Development Agreement or this deed of trust; (b) comply with Grantor's obligations under this deed of trust, the Development Agreement and other documents; (c) subject to and perfect the liens and security interests of this deed of trust and other documents any property intended to be covered thereby; and (d) protect, perfect, or preserve the liens and the security interests of this deed of trust and other documents against third persons or make any recordings, file any notices, or obtain any consents requested by Obligee in connection therewith. Grantor agrees to pay all costs of the foregoing. 19. Grantor represents and warrants to the City that (i) Grantor is a tax-exempt nonprofit corporation, duly organized and existing in good standing under the laws of the state of Texas, and has the power and authority to own and encumber its properties and assets, including the property covered by this deed of trust; (ii) Grantor has the power and requisite authority to execute, deliver and perform this deed of trust and the Development Agreement; Grantor is duly authorized to, and has taken all action necessary to authorize Grantor to execute, deliver and perform this deed of trust and the Development Agreement and is and will continue to be duly authorized to perform this deed of trust and the Agreement; and (iii) this deed of trust and the Development Agreement are legal and binding obligations of Grantor, enforceable in accordance with their respective terms. 20. This written deed of trust represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. Executed this 28th ATTEST: Rebecca Garza, City Secretary day of April 2005. APPROVED AS TO CONTENT: Larry Hert , City Engineer 44'4a-ext ---- Leigh Ann Dumbauld, Chief Financial Officer APPROVED AS TO FORM: Richard K. Casner, First Assistant City Attorney State of Texas County of Lubbock This instrument was acknowledged before me on this 3 /i-�- day of ! , 2005 by Marc McDougal as Mayor of the City of Lubbock. mcmomooaac=� ' CELIA �a► EBB Not blic, State of Texas Notary Public, State at Texas My commission expires: 0� - D - DO b W Commission Expires ' �i-07 �atxiE� CHRISTIAN CITY VIEW FELLOWSHIP Title: ay&W,41 STATE OF TEXAS COUNTY OF L u b 6 oc, -� The foregoing instrument was acknowledged before me on this 2 9 r� day of 2005, by /fit [i/dD. rr , of e"Ar / M. SOONER � Notary � Public, State of Texas 1?2 I-IooI,� My Commission Expires Notary Public in and for the State of Texas 1''• •+ 12-16-2006 L:Cityatt/Richard/Miwaukee Ave Paving Project.Deed of Trust .redin.accpt EXHIBIT "A" METES AND BOUNDS DESCRIPTION of a 64.790 acre tract Orland located in Section 37. Block AK, Lubbock Crwnty, Texas. some bring a poetwa of a 213.127 acre tract. being Qrrther desert`bod as rolbw:: . BEGINNING at a l/Y iron rod with cap set in the West line or Section 37. Block AK. same being in the South line orthat 600 row a 130 root drainage easement rreordrd in Vohtma 6422. Page 130. Real Property Records or Lubbock County. Texas. which bears N. 00'OT E. 264.23 feet from.a W iron rod round at the common suction comer or Sections 35. 36, 37. A 38, Bloek_AK, Lubbock County. Texas; THENCE N. 00'OT E. along the West line or Section 37. Block AK, a distance of 1000.09 feet to a 1I2' iron iod with cap set at a point curvature; THENCE Northeasterly. around a curve to the right. said curve having a radius of $05.00 feet. a central angle of 2e3510'. tangent lengths or 190.19 feet. and a chord distance of 370.19 feet to a lir iron rod with cap set at a point of reverse curvature; TIMNCE Northeasterly. around a curve to the left. said curve having a radius of 805.00 rect. a central angle of 26'40'40". tangent imsths or 190.87 feet. and a chord distance or371.44 rcct to a IX iron rod with up set at a point ortangcncy; THETICL• N. 0060130' E a distance or 100.00 rect to a lir iron rod with cap set in the South right orway line or the West Texas and Lubbock Railroad. sarne bring the North line orsaid 219.127 acre tract; TH04CE S. 72'08' E. along the South right orway line or the West Texas and Lubbock Railroad, same being the North line of said 218.127 acre tract, at 2031.37 feet pus a 112" imn rod with cap round in rererence, continuing along the South right orway line or the West Texas and Lubbock Railroad. same being the North line orsaid 2 18. 127 acre tract. for a total distance or2068.37 rect to a IR' iron and with cap set; THUNCE S. I7'S2' W. a distance of 790.32 reel to a IIr iron rod with cap set; THENCE S. 53•54' W. a distance or 391-s I rect to a 112" iron rod with cap set; THENCE West a distance or 62713 rust to a 1/2' iron rod with cap set; THENCE South a distance or97.S0 rcctto a 1!3' iron rod with cap set; THENCE N. 89'53' 10" W. a distance or 795.00 feat to the Point or Beginning. Bearings rctativc to the South right -or --way line or the West Texas and Lubbock Railroad as bring previously described as S. 72'OS' E