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Performance Deed of Trust 2010-0368645RECORDING REQUESTED BY AND ) WHEN RECORDED, RETURN TO: ) {it1 City of Poway ) P.O. Box. 789 ) Poway, CA 92074 -0789 ) With a copy to: ) Donald L. and Kathleen A. Mechling ) Revocable Living Trust dated 7/31/92 ) 14633 High Valley Road ) Poway, CA 92064 ) D O C # 2010-0368645 IIIIIIII III IIIII IIIII IIIII IIIII IIIII IIIII 1111111111111111111111111111 JUL 22, 2010 10:58 AM OFFICIAL RECORDS SAN DIEGO COUNTY RECORDER'S OFFICE DAVID L. BUTLER, COUNTY RECORDER FEES: 4&00 DA. 1 PACES: 11 APN 321- 271 -35 SPACE ABOVE THIS LINE FOR RECORDER'S USE. PERFORMANCE DEED OF TRUST THIS PERFORMANCE DEED OF TRUST ( "Deed ") is from the Donald L. and Kathleen A. Mechling Revocable Living Trust dated July 31, 1992, as Truster ( "Trustor "), whose address is 14633 High Valley Road, Poway, California, 92064, to The City of Poway, a California municipal corporation, as Trustee ( "Trustee ") for the benefit of The City of Poway, ( "Beneficiary "), whose address is 13325 Civic Center Drive, Poway California, 92064. RECITALS WHEREAS, Truster is the developer of a residential subdivision located on APNs 321 - 030 -31 and 321- 030 -32, commonly known as 14633 High Valley Road and 14635 High Valley Road in Poway, California. Trustor has caused to be filed with the City of Poway a tentative tract map TTM 06 -04, and is in the process of recording a final tract map, which requires compliance with certain conditions imposed by the City of Poway pursuant to State and local law; and WHEREAS, as a condition of receiving a final map, Trustor is required to complete various improvements ( "Improvements "), as detailed in the Agreement for Cash Deposit and Deed of Trust in Lieu of Bond, which is incorporated by reference and attached as Exhibit A; and WHEREAS, Truster and Beneficiary have agreed Truster will grant Beneficiary this Deed of Trust for the real property located at 13387 Millards Ranch Lane, Poway; California, (the "Property ") more particularly described in Exhibit B, attached hereto as security for the completion of the Improvements in lieu of providing Beneficiary with a bond in accordance with section 66499 of the Government Code and local ordinance; and WHEREAS, the appraised total value of the Property is $550,000, which is sufficient to meet the Truster's remaining security obligation of $508,637.00. NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and confessed by Beneficiary, Trustor hereby agrees as follows: 1 of 5 ID-G�, ARTICLE I GRANTING CLAUSE: THE PROPERTY Truster, in consideration of the obligations herein defined, does hereby irrevocably grant, transfer and assign to Trustee, in trust, with power of sale, that certain property in the City of Poway, San Diego County, California, more particularly described as 13387 Millards Ranch Lane, Poway, California, APN 321 - 271 -35, described in Exhibit B. ARTICLE II SECURED OBLIGATION This Deed of Trust is given in lieu of a bond to secure the performance of the completion of the improvements, which are described in more detail in Exhibit A. ARTICLE III COVENANTS, REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF MORTGAGOR Trustor hereby covenants, represents, warrants and agrees: a. To keep the Property in good condition and repair, to complete or restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed thereon and to pay when due all claims for labor performed and materials furnished therefor, to comply with all laws affecting the Property or requiring any alterations or improvements to be made thereon, not to commit or permit waste thereof, not to commit, suffer or permit any act upon the Property in violations of law to cultivate, irrigate, fertilize, fumigate, prune and do all other acts which from the character or use of the Property may be reasonably necessary, the specific enumerations herein not excluding the general. b. 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 to pay all costs and expenses, including cost of evidence of title and attorney's fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed. c. To pay at least ten (10) days before delinquency, all taxes and assessments affecting the Property, when due, all encumbrances, charges and liens, with interest, on the Property or any part thereof, which appear to be prior or superior hereto, all costs, fees and expenses of this Deed of Trust. d. That any award of damages in connection with any 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 by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other insurance. 2of5 e. That at any time or from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust, and without affecting the personal liability of any person for performance of the obligation secured hereby, Trustee may reconvey any part of the Property, consent to the making of any map or plot thereof; join in granting any easement thereon; or join in any extension agreement or any agreement subordinating the lien or charge hereof. f That upon written request of Beneficiary, state Trustor has performed all obligations secured hereby (i.e., completion of the Off -Site Improvements), and upon surrender of this Deed for cancellation and retention, or other disposition as Trustee, in its sole discretion, may choose and upon payment of fees, Trustee shall reconvey, without warranty, the Property then held hereunder. The recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as, "The person or persons legally entitled thereto." Five years after issuance of such full reconveyance, Trustee may destroy this Deed (unless directed in such request to retain it). g. That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority, during the continuance of these Trusts, to collect the rents, issues and profits of the Property, reserving unto Trustor the right, prior to any non - performance of Trustor's obligations secured hereby, to collect the rents, issues and profits of the Property, reserving further unto Trustor the right, prior to any non- performance of Trustor's obligations, to collect and retain such rents, issues and profits as they become due and payable. h. That upon the non - performance by Trustor of the obligations secured hereby, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to Trustee of written declaration of Trustor's non - performance and demand for sale and of election to cause to be sold the Property which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed and all documents evidencing expenditures secured hereby. i. After the lapse of such time as may then be required bylaw following the recordation of said notice of default, and notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time fixed by the preceding postponement Trustee shall deliver to such purchaser its deed conveying the property 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 Trustor, Trustee, or Beneficiary as hereinafter defined, may purchase at such sale. 3 of 5 j. After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof, all other sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto. k. That by accepting payment of any sum or performance secured hereby after its due date, Beneficiary does not waive his right either to require prompt payment or performance when due of all other sums so secured or to declare default or failure so to pay. ARTICLE IV ENFORCEMENT OF THE SECURITY A power of sale has been granted in this Deed. A power of sale may allow Beneficiary to take the Property and sell it without going to court in a foreclosure action in the event the Improvements are not completed within after execution of this Deed. ARTICLE V RELEASE OF THE DEED Upon approval by the City of Poway that the Improvements are complete, this Deed of Trust shall be released. ARTICLE VI MISCELLANEOUS a. If any provision of this Deed of Trust is invalid or unenforceable in any jurisdiction, the other provisions hereof shall remain in full force and effect in such jurisdiction, and the invalidity of any provision hereof in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction. b. This Deed of Trust may be executed in any number of counterparts, each of which shall for all purposes be deemed to be an original, and all of which are identical. c. Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, shall be conclusive proof of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights, powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is recorded and the name and address of the new Trustee. 4 of d. That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, devisees, administrators, executors, successors and assigns. Whenever the context so requires, the masculine gender includes the feminine and /or neuter, and the singular number includes the plural. e. This instrument, the interpretation hereof and the rights, obligations, duties and liabilities hereunder shall be governed and controlled by the laws of the State of California. f That 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 Truster, Beneficiary or Trustee shall be a party unless brought by Trustee. g. Pursuant to California Government Code Section 27321.5(b), Trustor hereby requests that a copy of any notice of default and a copy of any notice of sale given pursuant to this instrument be mailed to Trustor at the address set forth herein. IN WITNESS WHEREOF, Truster has executed this Performance Deed of Trust as of the date first written. (Signatures must be notarized) TRUSTOR: Donald L. and Kathleen A. Mechling Revocable Living Trust, dated July 31, 1992 By: Donald L. Mechling, Trustee By: ; fl t- Ute kZ, A'( e ,LL-e- — Kathleen A. Mechling, Trustee 5 of 5 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California County of San Diego Data personally appeared before me, Phyllis Shinn, Notary Public Here Insert Name and Title of the Officer L. mr - PHYlL15 SN177 Commisalon '81111111,1101 1778898 ` Notary PubIIC • California San Diego County Comm.6 !Yov9 2011 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(4) whose name() is/am, subscribed to the within instrument and acknowledged to me that k? /sNe /they executed the same in "/their authorized capacity(es), and that by tjisP*rr /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my ha et and official s ., Signature z�[ lMJ Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Individual ❑ Corporate Officer— Title(s): _ C) Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: RIGHTTHUMRPRINr, ;'-GFSIGNER: " in Number of Pages: Signer's Nat ❑ Individual ❑ Corporate Officer — Title(s): _ ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: RIGHTTHUMBPRINT -,.GF SIGNER.- ! 0 02007 National Notary Association - 9350 De Soto Ave., R.O. Box 2402•Chalswod CA 913132402•wrw NationalNotaryoB Item #5907 Reorder: Call Toll Flee 1- 870 - 6]6682] Exhibit "A" AGREEMENT FOR CASH DEPOSIT AND PERFORMANCE DEED OF TRUST IN LIEU OF BOND THIS AGREEMENT, made and entered this_fb6iday of June, 2010, by and between Donald L. and Kathleen A. Mechling Revocable Living Trust dated July 31, 1992, by Donald and Kathleen Mechling, Trustees, whose mailing address is 14633 High Valley Road, Poway, California 92064, (hereinafter referred to as the "Developer ") and The City Of Poway, a political subdivision of the State of California, (hereinafter referred to as the "City "). WITNESSETH WHEREAS, the Developer desires to do and perform certain work, consisting of the construction of improvements for a residential subdivision map on APNS 321 -030- 31-00 and 321 - 030 -32 -00 commonly known as 14633 High Valley Road and 14635 High Valley Road, Poway, consisting of but not limited to: roads, waterlines, curb and gutter, retaining walls, SUSMP, drainage pipes or culverts, and other improvements in accordance with the Improvement Plans for TTM 06 -04, and in accordance with the City approved engineer's Construction Cost Estimate, a copy of which is attached hereto, marked Exhibit "A" and made by reference a part hereof, and WHEREAS, the City has agreed to accept, and the Developer has agreed to provide, a cash deposit in the amount of $40,000 and a Performance Deed of Trust on property owned by Developer in lieu of a surety and performance bond to cover project completion securing to the City the faithful performance of all of the terms and conditions thereof on the Developer's part to be performed; and WHEREAS, the City agrees to accept such cash deposit in partial satisfaction of the Developer's obligation to provide such bond; and WHEREAS, the Developer agrees to execute a Performance Deed of Trust in the amount of $508,637 in favor of the City on property owned by the Developer in lieu of the remainder of the surety and performance and payment bonds which would otherwise be required, on property located at 13887 Millards Ranch Lane, Poway, APN 321 - 271- 35 -00, provided that a proper agreement is entered into by and between the Developer and the City; and WHEREAS, the City agrees to accept such Performance Deed of Trust on property in satisfaction of the remainder of Developer's obligation to provide such bond; and NOW, THEREFORE, for and in consideration of the premises and of the mutual covenants and agreements hereinafter contained, the parties hereto agree as follows: 1. The Developer hereby represents that it will deposit the amount of forty thousand dollars ($40,000) with the City as partial security to assure the faithful performance of all of the terms and conditions of the aforesaid Improvements Plans on the Developer's part to be performed, said sum to be received and held by the City in accordance with the terms hereof and for no other purpose than herein stated. 2. It is understood and agreed that the money deposited, as herein provided, is a security interest and that the City's claim to said funds shall be prior to that of any creditor, referee, receiver or trustee in the event of insolvency or bankruptcy; and that in such event, said funds shall not be administered by any receiver, referee, or trustee. This Agreement shall be placed on public record to perfect said security interest. 3. Upon final acceptance by the City of all the improvements called for in said Improvement Plans, this Agreement shall become null and void and of no further force or effect, and all funds in said account shall be returned to the Developer. 4. The Developer further represents that it has free and clear title to the property located at 13887 Millards Ranch Lane, Poway with an appraised value of $550,000 as shown in the most recent appraisal provided to City, and Developer will execute a Performance Deed of Trust to that property to City in the amount $508,637 as partial security to assure for the faithful performance of all of the terms and conditions of the aforesaid Improvement Plans on the Developer's part to be performed, said Performance Deed of Trust to be recorded with the county recorder in accordance with the terms hereof and for no other purpose than herein stated. 5. It is understood and agreed that the Performance Deed of Trust on property, as herein provided, is a security interest and that the City's claim to said Deed shall be prior to that of any creditor, referee, receiver or trustee in the event of insolvency or bankruptcy; and that in such event, said Deed shall not be administered by any receiver, referee, or trustee, but shall be handled according to the terms of this Agreement. This Agreement shall be placed on public record to perfect said security interest. 6. In the event said improvements are not completed to the satisfaction of the City within the time prescribed in said Improvements Plans and /or as required by City ordinance and the City desires to exercise its option to foreclose on the Performance Deed of Trust on the property in order to 2 complete the improvements, Developer shall cooperate in all proceedings required to accomplish the foreclosure for the amount outstanding. 7. Upon final acceptance by the City of all the improvements called for in said Improvement Plans, this Agreement shall become null and void and of no further force or effect, and all rights to the property shall belong to the Developer and the Performance Deed of Trust will be reconveyed by the City. 8. This Agreement and all of the provisions hereof shall be binding upon and shall insure to the benefit of the parties hereto, their respective heirs, legal representatives, successors, and assigns. IN WITNESS WHEREOF, the parties hereto have executed, or have caused to be executed by their duly authorized representative, this Agreement in triplicate the day and year first above written. Donald L. and Kathleen A. Mechling Revocable Living Trust dated July 31, 1992, Developer Donald L. Mechling, Trusted Kathleen A. Mechling, Trustee 3 City of Poway Approved as to Form: Office of he . Lisa . Foster, City Attorney Exhibit "A" B o�bQ BILL YEN & ASSOCIATES, INC. OA Civil Engineering • Site Planning • Surveying PRELIMINARY CONSTRUCTION COST ESTIMATE CITY OF POWAY IMPROVEMENT PLAN TTM 06 -04 MECHLING SUBDIVISION (TTM 06 -04) W00433 ITEM QUANTITY UNIT COST TOTAL Grading: 0 -1,000 c.y. 1,000 C.Y. $8.20 /C.Y. $8,200 Grading: 1,001- 10,000 c.y. 9,000 C.Y. $4.10 /C.Y. $36,900 Grading: 10,001- 30,000 c.y. 9,000 C.Y. $2.85 /C.Y. $25,650 3" thick Asphalt Concrete Paving 7,533 S. F. $1.14 /S.F. $8,588 4" thick Aggregate Base Material 7,533 S. F. $0.56 /S. F. $4,218 6" Thick PCC Paving 17,517 S. F. $2.46 /S.F. $43,092 6" Concrete Curb & Gutter 2,662 L. F. $11.50 /L. F. $30,613 Construct Concrete Driveway Apron 600 S. F. $3.85 /S.F. $2,310 Sawcut AC Paving 37 L. F. $2.65 /L.F. $98 Waterline Tie -In to Main 1 EA $650.00 /EA $650 Install 8" dia. Waterline 1,236 L.F. $29.50 /L.F. $36,462 Install 22.5 or 45 degree Elbow 7 EA $185.00 /EA $1,295 Install Waterline Blow -Off Assembly 1 EA $1,000.00 /EA $1,000 Install 1" Water Service 10 EA $615.00 /EA $6,150 Construct Concrete Spillway 1 EA $175.00 /EA $175 Install Fire Hydrant 4 EA $3,150.00 /EA $12,600 6" dia. PVC Storm Drain Pipe 53 L. F. $18.00 /L.F. $954 12" dia. PVC Storm Drain Pipe 63 L. F. $31.50 /L.F. $1,985 18" dia. PVC Storm Drain Pipe 191 L. F. $63.00 /L.F. $12,033 Rip Rap Energy Dissipator Rock 44 C.Y. $105.00 /C.Y. $4,666 Keystone Walls 9,700 S. F. $16.00 /S.F. $155,200 Gravel Bags 1,577 EA $2.00 /EA $3,154 3'x3' Catch Basin 3 EA $600 /EA $1,800 4" dia. Cleanout 1 EA $100 /EA $100 1'x1' Clean Out 1 EA $265 /EA $265 3'x3' Clean Out 2 EA $600 /EA $1,200 Headwalls 4 EA $3,150.00 /EA $12,600 Hydroseeding 62,600 S.F. $0.27 /S.F. $16,902 Construct Curb Inlet 1 EA $3,050.00 /EA $3,050 Desilting Basin 4 EA $500.00 /EA $2,000 Thrust Block 7 EA $250.00 /EA $1,750 Stabilized Construction Entrance 2 EA $500.00 /EA $1,000 Storm Water Quality Unit 1 EA $6,500.00 /EA $6,500 48" dia. Detention Pipes 1 EA $8,064.00 /EA $8,064 TOTAL $451,224 rd Prepared by: e �yya� la Eat 36 410 William Yen RC 33730 Date 13071 Poway Road, Poway, CA 92064 -4519 • (858) 67 .? _roT858) 679 -8015 EXHIBIT "B" LEGAL DESCRIPTION PARCEL 1: LOT 2 OF CITY OF POWAY TRACT 89 -01, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 12975, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 21, 1992. PARCEL2: A 40.00 FOOT EASEMENT FOR ROAD AND UTILITY PURPOSES OVER A PORTION OF THE WEST HALF OF SECTION 8, TOWNSHIP 14 SOUTH, RANGE 1 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, THE CENTERLINE OF SAID EASEMENT DESCRIBED AS FOLLOWS: BEGINNING,ON THE WEST LINE OF SAID SECTION 8, DISTANT THEREON NORTH 00 °32'33" WEST, 1303.69 FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE SOUTH 83 °49'12" EAST, 267.48 FEET; THENCE NORTH 50 °56'40" EAST, 77.86 FEET; THENCE NORTH 89 °09'53" EAST, 193.51 FEET; TIIENCE SOUTH 59 °39 "04" EAST, 153.70 FEET; THENCE NORTH 8711'26" EAST, 278.19; THENCE NORTH 76 °42'14" EAST, 96.30 FEET; THENCE SOUTH 66 °21'31" EAST, 99.65 FEET; THENCE SOUTH 79 °20'48" EAST 93.24 FEET; THENCE NORTII I1 °48'46" EAST, 239.81 FEET; THENCE NORTH 10 °25'03" WEST, 239.87 FEET; THENCE NORTH 0718,57" WEST, 96.48 FEET; THENCE NORTH 21 °05'36" EAST, 131.27 FEET; THENCE NORTH 35 °54'18" EAST, 248.07; THENCE NORTH 02 °40'52 ", 231.09 FEET; THENCE NORTH 42 °29'30" EAST, 714.12 FEET; THENCE NORTH 44 °4642" EAST, 428.28 FEET; TFIENCE NORTH 52 033'52 ", EAST 99.88 FEET; THENCE NORTH 78 045'56" EAST, 263.60 FEET; THENCE NORTH 42 °27'00" EAST TO A POINT IN A LINE 20.00 FEET WESTERLY OF AND PARALLEL WITH THE EAST LINE OF THE SOUTH HALF OF TIIE NORTHWEST QUARTER OF SAID SECTION 8; TIIENCE NORTHERLY ALONG SAID PARALLEL LINE TO THE INTERSECTION WITH THE SOUTHERLY LINE OF SAID ROAD SURVEYS 472 AND 1713, KNOWN AS POWAY ROAD. EXCEPTING TIIEREFkOM ALL THAT PORTION LYING WITHIN PARCEL 1 ABOVE. PARCEL 3: AN EASEMENT FOR ROAD AND PUBLIC UTILITY PURPOSES, OVER, UNDER, ALONG AND ACROSS THOSE PORTIONS OF LOTS 3, 4, AND 5 OF CITY OF POWAY TRACT 89 -01, ACCORDING TO MAP THEREOF NO, 12975, FILED IN TFIE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 21, 1992 SHOWN ON SAID MAP AS "PROPOSED ROAD EASEMENT ". APN: 321- 271 -35