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HomeMy WebLinkAboutD-1604B De Tolosa Ranch Development Recorded 05/12/2005RECORDING REQUEST BY: r Cuesta Title om JULIE ROD LD San Luis Obis iinty— Clerk1Recorder DG 5/12/2005 WHEN RECORDED IFURN TO: Recorded at the request of 8 :00 AM Cuesta Title Company City of San Luis Obispo D 0 C # : 2005038821 Titles: 1 Pages: 9 5 990 Palm Street San Luis Obispo, CA 93401 Fees 0.00 Attn: City Clerk Taxes 0.00 Others 0.00 Record for the benefit of the City of San Luis Obispo PAID $0.00 At No Fee under Section 27383 of the Government Code. The undersigned declare that there is no documentary Transfer tax on this matter. SUBORDINATION AGREEMENT NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LEIN OF SOME OTHER OR LATER SECURITY INSTRUMENT. THIS AGREEMENT, made by Santos Sarabia.and Josephine Sepulveda, Owners of the land hereinafter described and hereinafter referred to as "Owner," and City of San Luis Obispo present owner and holder of the deed of trust and note first hereinafter described and hereinafter referred to as "Beneficiary"; WITNESSETH THAT WHEREAS, Santos Sarabia and Josephine Sepulveda, did execute a deed of trust, dated February 26, 2004, to First American Title Insurance Company, as trustee, covering property located at 1598 Eto Circle, as more particularly described in Exhibit One; SEE EXHIBIT ONE ATTACHED HERETO AND MADE A PART HEREOF To secure a note in the sum of $171,175, dated February 23, 2004 in favor of City of San Luis Obispo, which deed of trust was recorded as instrument document no. 2004 - 015597, on February 27, 2004, of Official Records of said county; and WHEREAS, Owner did execute a second deed of trust, dated February 26, 2004, to First American Title Company, as trustee, in the amount of $15,125, which was recorded as instrument document no. 2004 - 015466, on February 27, 2004, and WHEREAS, Owner has executed, or is about to execute, a new second deed of trust and note in the sum of $30,000, dated MAY 4, 2005 in favor of Sesloc Federal Credit Union, hereinafter referred to as "Lender," payable with interest and upon the terms and conditions described therein, which deed of trust is to be recorded concurrently herewith; and WHEREAS, it is a condition precedent to obtaining said loan that said deed of trust last above mentioned shall unconditionally be and remain at all times a lien or charge upon the land hereinbefore described, prior and superior to the lien or charge of the deed of trust first above mentioned; and Page 1 of 5 INITIAL b M 09 T WHEREAS lender is willin to make said loan provided the deed IRA the same is a g P 'securing lien or charge upon the above described property prior and superior to the lien or charge of the deed of trust first above mentioned and provided that Beneficiary will specifically and unconditionally subordinate the lien or charge of the deed of trust first above mentioned to the lien or charge of the deed of trust in favor of Lender; and WHEREAS, it is to the mutual benefit of the parties hereto that Lender make such loan to Owner; and Beneficiary is willing that the deed of trust securing the same shall, when recorded, constitute a lien or charge upon said land which is unconditionally prior and superior to the lien or charge of the deed of trust first above mentioned. NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce Lender to make the loan above referred to, it is hereby declared, understood and agreed as follows: That said deed of trust securing said note in favor of Lender, and any renewals or extensions thereof, shall unconditionally be and remain at all times a lien or charge on the property therein described, prior and superior to the lien or charge of the deed of trust above mentioned. 2. That Lender would not make its loan above described without this subordination agreement. 3. That this agreement shall be the whole and only agreement with regard to the subordination of the lien or charge of the deed of trust above mentioned to the lien or charge of the deed of trust in favor of the lender above referred to and shall supersede and cancel, but only insofar as would affect the priority between the deeds of trust hereinbefore specifically described, any prior agreement as to such subordination including, but not limited, those provisions, if any, contained in the deed of trust first above mentioned, which provide for the subordination of the lien or charge thereof to another deed or deeds of trust or to another mortgage or mortgages. Beneficiary declares, agrees and acknowledges that a. He consents to and approves (i) all provisions of the note and deed of trust in favor of Lender above referred to, and (ii) all agreements, including but not limited to any loan or escrow agreements, between Owner and Lender for the disbursement of the proceeds of Lender's loan; b. Lender in making disbursements pursuant to any such agreement is under no obligation or duty to, nor has Lender represented that it will, see to the application of such proceeds but the person or persons to whom Lender disburses such proceeds and any application or use of such proceeds for purposes other than those provided for in such agreement or agreements shall not defeat the subordination herein made in whole or in part; He intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the deed of trust first above mentioned in favor of the lien or charge upon said land of the deed of trust in favor of lender above referred to and understands that in reliance upon, and in consideration of, this waiver, relinquishment and subordination, specific loans and advances are being and will be made and, as part and parcel thereof, specific monetary and other obligations are being and will be entered into which would not be made or entered into but for said reliance upon this waiver, relinquishment ano subordination; and Page 2 of 5 �J d. An endorsement has been placed upon the note secured by the deed of trust first above - mentioned that said deed of trust has by this instrument been subordinated to the lien or charge of the deed of trust in favor of Lender above referred to. NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN A PORTION OF WHICH MAY BE EXPENDED FOR OTHER PURPOSES THAN IMPROVEMENT OF THE LAND. IT IS RECOMMENDED THAT, PRIOR SUBORDINATION AGREEMENT, THE ATTORNEYS WITH RESPECT THERETO. City of San Luis Obispo, Beneficiary: Ken HIIApian, City AdAinistrative Officer Owner(s): Page 3 of 5 TO THE EXECUTION OF THIS PARTIES CONSULT WITH THEIR APPROVED AS TO FORM: 19NATIIM P LOWELL City Attorney (ALL SIGNATURES MUST BE ACKNOWLEDGED) STATE OF CALIFORNIA COUNTY, /OF SAN LUIS OBISPO ON 7 — // -0) before m personally appeared t try proved to me on the basis of satisfactory e4(dente) to be the person(s) whose name(s) ,Ware subscribed to the within instrument and acknowledged to me that hek4e /they executed the same in his/her /their authorized capacity(ies), and that by 4isAw /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Witnes4han official seal Signatu RUSSELL N. HAYNES COMM.01"'1370 m Notary Public - California 0 LU , SAN LUIS OBISPO COUNTY My Comm. Exp. Sept 23, 2001 STATE OF CALIFORNIA ) )ss COUNTY OF SAN LUIS OBISPO ) • On April 26, 2005, before me Audrey per, City Clerk, personally appeared Ken Hampian, (City Administrative Officer), CITY OF SAN LUIS OBISPO, 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. m - y "1 gnattire ' � ;,'�'�� �•�-;. �` -`" y Clerk r ^. - EXHIBIT "ONE" LEGAL DESCRIPTION Lot 27 of Tract 2307, in the County of San Luis Obispo, State of California, according to map recorded September 25, 2001 in Book 19, Page 77 of Maps. Assessor's Parcel No: 053,511,027 Page 5 of 5 END OF DOOU9ENV 1 i 2 RETURN TO: 3 4 City Clerk 5 City of San Luis Obispo 6 990 Palm Street 7 San Luis Obispo, CA 93401 -3249 8 9 10 DE TOLOSA PROMISSORY NOTE 11 SECURED BY DEED OF TRUST 12 13 $ 171,175.00 Date: _February 23, 2004 14 At San Luis Obispo, California 15 16 FOR VALUE RECEIVED, Josephine Sepulveda, a single womand and Santos Sarabia, a single 17 man, ( "Maker ") promises to pay to the order of the City of San Luis Obispo ( "City") at 990 Palm 18 Street, San Luis Obispo, California 93401 or such other address as City may from time to time 19 designate, the sum of One Hundred Seventy -One Thousand One Hundred Seventy -Five Dollars 20 ($171,175.00) according to the terms set forth herein. This Note shall accrue interest, 21 compounded monthly, at an annual rate of 4.5 percentage points added to the 11t' District Cost 22 of Funds, as published by the Federal Home Loan Bank Board, amortized over 30 years. The 23 Loan shall be amortized over thirty years, with monthly payments of principal and interest due 24 and payable to the City on the first day of each month unless waived or forgiven, as set forth 25 below. 26 27 1. Security for Note. This Note is secured by a deed of trust of even date herewith (the "Deed 28 of Trust ") executed by Maker, as Trustor, and naming City as Beneficiary, covering certain real 29 property ( "the Property ") owned by Maker in the County of San Luis Obispo, State of California, 30 commonly knows as 15.98 Eto Circle, which Property is more particularly described in Exhibit A, 31 attached hereto. 32 33 2. Incorporation of Affordable Housing Agreement. This Note and the Deed of Trust are 34 executed and delivered pursuant to that certain "Affordable Housing Agreement" ( "Affordability 3S Agreement ") recorded in the County of San Luis Obispo on September 25, 2001 between City 36 and SLO Estates, Inc., regarding affordable housing requirements applying to the De Tolosa 37 Ranch Residential Development. Pursuant to the Affordability Agreement, Maker is to live at 38 the Property. Consequently, this Note is subject to section 711.5 of the California Civil Code, 39 which grants to City the authority to accelerate all amounts due under this Note if any subsequent 40 transfer of the Property at any time does not comply with the provisions of the Affordability 41 Agreement or Deed of Trust. The Affordability Agreement is incorporated herein by this 42 reference as though set forth in its entirety and attached hereto as Exhibit B. 43 44 3. City's Right of First Refusal. Upon resale, the City or the Housing Authority of the City 45 of San Luis Obispo shall have the first right of refusal to purchase the property at then current 46 appraised value. The consideration for the City's right of first refusal shall consist of 1 percent of Affordable Housing Promissory Note Page 2 1 the remaining City loan balance. The balance of the City loan remaining after deducting this 1 2 percent of the loan balance shall be credited toward the purchase price if the City chooses to 3 exercise the purchase option. The provisions of this section shall not impair the rights of a first 4 mortgage lender secured by a recorded deed of trust. The purchase money lender shall have a 5 higher priority than the City's loan. The City's security shall be prioritized as a second mortgage. 6 This first priority applies to the purchase money lender's assignee or successor in interest, to: 7 8 i. Foreclose on the subject property pursuant to the remedies permitted by law and 9 written in a recorded contract or deed of trust; or 10 11 ii. Accept a deed of trust or assignment to the extent of the value of the unpaid first 12 mortgage to the current market value in lieu of foreclosure in the event of default 13 by a trustor; or 14 15 iii. Sell the property to any person at a fair market value price subsequent to 16 exercising its rights under the deed of trust. Any value in excess of the unpaid 1.7 mortgage and costs of sale administration shall be used to satisfy the City loan. In 18 no case may a first mortgage lender, exercising foreclosure assignment in -lieu of 1.9 foreclosure or sale, obtain value or rights to value greater than the value of the 20 outstanding indebtedness on the first mortgage at the time of the debt clearing 21 action. 22 23 The following types of transfers shall remain subject to the requirements of the City's loan 24 and right of first refusal: transfer by gift, devise, or inheritance to the owner's spouse; 25 transfer to a surviving joint tenant; transfer to a spouse as part of divorce or dissolution 26 proceedings; or acquisition in conjunction with a marriage. 27 28 4. Due on Transfer. In the event Maker sells, leases, rents or otherwise transfers the 29 Property to any person or entity other than an "eligible household" (as such term is defined in the 30 Housing Agreement), then the Principal of and accrued interest on the Loan shall be immediately 31 due and payable to the City as set forth in the Deed of Trust in favor of City recorded 32 simultaneously herewith as a second deed of trust subordinate to the deed of trust of the first 33 mortgage lender on the Property. 34 3s 5. Waiver of Principal and Interest. City waives timely payment of the Principal of and 36 interest on the Loan for such time as Maker, who has been determined by City or its Housing 37 Authority to be an eligible buyer, remains as the owner and occupant of the Property as Maker's 38 principal residence until February_ 27 , 2034. 39 4o 6. Forgiveness of Loan. City will forgive the repayment of the outstanding Principal of the 41 Loan and all interest thereon as long as Maker, or subsequent buyer determined by City or its 0 � 0 Affordable Housing Promissory Note Page 3 1 Housing Authority to be an eligible household, remains as the owner and occupant of the 2 Property as Maker's principal residence untiVebruary 27. 2034. 3 4 7. Prepayment. This Note may not be prepaid in whole or in part, unless called due by City. 5 6 8. Payment. The amount due under this Note shall. be paid without the necessity for notice 7 or demand by City. 8 9 9. Payment Amount. The amount due under this Note shall be paid from the net proceeds 10 as a result of any transfer. Net proceeds is the sales price minus any loans or liens that are senior 11 to this Note and minus closing costs. 12 13 10. Default Defined. In addition to other defaults referred to in this Note and the Deed of 14 Trust, it shall be a default under this Note if Maker fails to make any payment or perform any 15 obligation under or in connection with (a) this Note, (b) the Deed of Trust, or (c) any other note, 16 trust deed or other obligation of Maker relating to the Property, including but not limited to the 17 Affordability Agreement, or secured by all or any part of the Property, whether junior or senior to 18 this Note, and if such failure is not cured within such time as may be permitted by the obligation 19 or the obligee. 20 21 11. Options of City upon Default. Upon the occurrence of a default, City shall have the 22 option, without further notice or demand: 23 24 (a) To declare the Note to be immediately due and payable; 25 26 (b) If the default relates to a transfer of the Property, to bring an action at law or in 27 equity to require Maker and the proposed transferee to terminate and/or rescind the sales 28 contract or lease and/or to declare the transfer void, notwithstanding that the transfer. may 29 have closed and become final as between Maker and the transferee; or 30 31 (c) To pursue any other remedy available under this Note or the Deed of Trust, or 32 at law or in equity or under any other agreement, instrument or document entered into by 33 Maker and City, including but not limited to the Affordability Agreement. 34 35 12. Failure to Exercise Options. Failure to exercise any such option upon the occurrence of 36 one or more events of default shall not constitute a waiver of City's right to exercise any such 37 option at a later time. 38 39 13. Costs of .Enforcement and Collection. If Maker defaults under this Note, Maker shall 40 pay all costs of enforcement and collection, including, but not limited to, costs and attorney's Affordable Housing Promissory Note Page 4 1 fees, including reasonable attorney's fees, whether or not such enforcement or collection includes 2 filing a lawsuit or prosecution of a lawsuit, if filed. 3 4 14. City's Right to Transfer Interest in Note. City and any subsequent holder of this Note 5 may at any time, without consent of Maker, sell, assign, pledge, hypothecate, transfer and 6 negotiate or grant participation in any part of or any interest in City's rights and benefits under 7 this Note to another governmental body or nonprofit organization which is eligible to receive 8 such transfer under state and federal law. 9 10 15. Waiver of Notice and Statute of Limitations. Except for any notice expressly required 11 by this Note, Maker waives demand, notice of demand, presentation for payment, notice of non- 12 payment or dishonor, protest and notice of protest. To the fullest extent permitted by law, Maker 13 waives the defense of the statute of limitations in any action on this Note or to recover on the 14 security for this Note. 15 16 16. Liabili . City's acceptance of any payment under this Note which is less than payment in 17 full of all amounts then due and payable, or the granting of any extension of time for payment of 18 any amount due under this Note or for the performance of any covenant, condition or agreement 19 entered into by Maker and City, or City's grant of any other indulgence to Maker, or City's taking 20 or release of other or additional security for the indebtedness evidenced hereby, or any other 21 modification or amendment of this Note shall in no way release or discharge the liability of 22 Maker or any endorser, guarantor or other person secondarily liable for this Note. 23 24 17. Governing Law. This Note shall be governed by the laws of the State of California. 25 Maker agrees that the site of any hearing or action of whatever nature or kind regarding this Note 26 shall be conducted in the County of San Luis Obispo, State of California. 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 18. Severability. If any provision of this Note or any application of such provision be declared by a court to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other application of such provision or the balance of the provisions hereof, which shall, to the fullest extent possible, remain- ll.torcefeqt. 10 Ell 4 (attach notarization) Santos Sarabia 1 2 3 4 6 7 8 9 10 1- 1 1 1 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Affordable Housing Promissory Note Page 5 CITY: K am 'an, City Adm&strafive Officer APPROVED AS TO FORM AND LEGAL EFFECT: Affordable Housing Promissory Note Page 6 • EXHIBIT "A' DESCRIPTION OF REAL PROPERTY Lot 27 of Tract 2307, in the City of San Luis Obispo, County of San Luis Obispo; State of California, according to map recorded September 25, 2001 in Book 19, Page 77 of Maps, in the office of the County Recorder of said County. AMERI • 44 q } STATE OF CA ORNIA }ss. COUNTY OF Lima LLv �x } On W-)Q, a , -, O personally appeared _ before me, � -�• 9&c- -I,-- R Y�DCp personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name67 is are subscribed to the within instrument. and acknowledged to me thaZ`h�j(she /they executed the same irk hi her /their authorized capacity(ies), and that bXhip er/their signature(s) on the instrument the person(s) or the entity upon behalf of which the person(s) WITNESS my hand and official seal. Signature (This area for official notarial seal) Title of Document acted, executed the instrument. N KAREN L. OGBURN COMM. # 1413283 < � Notary Public -Cal fomia County of Santuls Obispo N Comm. Exp: May 20, 2007 Date of Document c;k, 3 -04 No. of Pages Other signatures not acknowledged :1008 (1194) (General) First American Title Insurance Company i AME �� RI • 1 � �9 } STATE OF CA , ORN A - }ss. COUNTY OF before me, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name is re subscribed to the within instrument and acknowledged to me that h /she hey executed the same in his /her heir authorized capacity(ies), and that by hi her eir 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. !.S1111MV (This area for official notarial seal) 1 KAREN L. OGBURN COMM. # 1413283 < Notary Public- California ^� County of San Luis Obispo N +r1y Ce?1m. Exp. May 20, 2007 Title of Document CZ7 Date of Document ���D No. of s Other signatures not acknowledged 3008 (1/94) (General) First Ame *ican Title Insurance Company