HomeMy WebLinkAboutD-1614 1582 Eto Circle - De Tolosa Ranch Development Recorded 12/10/2004RECORDED AT THE REQUEST
OF FINANCIALTr COMPANY
WHEN RECORDED RETURN TO:
JULIE RODEWALD
San Luis Obisp, 'tnty — Clerk/Recorder
Recorded at the requee. of
Title Court Services Inc
City of San Luis Obispo 0 0 c # : 2004107610
990 Palm Street
San Luis Obispo, CA 93401
Attn: City Clerk I IIII II III I II IIIIIII II IIIIII
Record for the benefit of the City of San Luis Obispo
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
SR
12/10/2004
11:35 AM
Titles: 1 Pages: 6
Fees
22.00
Taxes
0.00
Others
0.00
PAID
S22.00
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 Joseph J. Reichmuth and Monica A. Reichmuth,
Owner 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, Joseph J. Reichmuth and Monica A. Reichmuth, did execute a deed of
trust, dated April 26, 2004, to First American Title Insurance Company, as trustee, covering
property located at 1582 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 211,175.00, dated April 26, 2004, in favor of City of San Luis
Obispo, which deed of trust was recorded as instrument document no. 2004042899, on May 19,
2004, of Official Records of said county; and
WHEREAS, Owner has executed, or is about to execute, a deed of trust and note in the sum of
181,000, dated November 4, 2004in favor of Wells Fargo, 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
WHEREAS, lender is willing to make said loan provided the deed of trust securing the same is a
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
Page I of 5 INITIALS i�
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:
1. 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:
c. 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 and
subordination; and
Page 2 of 5 INITIA IMP,
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 TO THE EXECUTION OF THIS
SUBORDINATION AGREEMENT, THE PARTIES CONSULT WITH THEIR
ATTORNEYS WITH RESPECT THERETO.
City of S n Luis Obispo, Beneficiary:
en Ha is , City Ad 'nistrative Officer
Owner(s):
Jose h J. Reichmuth Monica A. Reichmuth
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
STATE OF CALIFORNIA
personally appeared�/Cl°i g!960mgM , personally known to me (or
roved to me on the basis of satisfactory evidence) to be the persons) whose name(s)
is re subscribed to the within instrument and acknowledged to me that pshe /they
executed the same in Pi /her /their authorized capacity(ies), and that by ti /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 m d and official seal
Signat re
APPROVED AS TO FORIvi.
ATHAN P. LOWELL
City Attorney
Page 3 of 5
INITIALS haL
STATE OF C,
COUNTY OF , °;1112 G611f.YW �v
ON before
Ze N2 d14,40 personally
appeared
personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s is e
subscribed to the within instrument and acknowledged to me that h sh /they
executed the same in his e heir authorized capacity(ies), and that by hisl9their
signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
MARC -4A GERBER
Ca fissm r 1389288
CPublic
SWABARBARACOUNTY
tlyCmimsson Ewes December9 2006
Paae 4 of 5 INITIALS volt
STATE OF CALIFORNIA )
)ss
COUNTY OF SAN LUIS OBISPO )
On December 2, 2004, before me Audrey Hooper, 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.
Signature 6 9
Clerk
(This area for official City Seal.)
EXHIBIT "ONE"
rom Exhibit "A" of Title Report:
Parcel A:
Lot 35 of Tract 3307, in the City of San Luis Obispo, County of San Luis Obispo, State
of California, according to map recorded September 35, 3001 in book 19, page 77 of
maps, in the office of the County Recorder of said county.
Parcel B:
An easement for sideyard, landscaping and incidental purposes over a 0.37 meter (1.21')
wide strip of land over a portion of Lot 34 of Tract No. 2307, in the City of San Luis
Obispo, County of San Luis Obispo; State of California, as filed in book 19 at page 77 of
maps, in the office of the county recorder of said county, said strip lying southeasterly of
the following described line:
Commencing at the most northerly corner of said Lot 34, also being the most easterly
corner of Lot 35 of said Tract No. 3307;
Thence along the line common to said Lots, south 56 06' 35" west 5.65 meters (18.54'.)
to the true point of beginning;
Thence continuine, along said line, south 56 06' 35" west 3.86 meters (12.66')
APN/Parcel number: 053 - 511 -035
Page 5 of 5
INITIAL
END OF DOCUMENT
1
2 RETURN TO:
3
4 City Clerk
5 City of San Luis Obispo
6 990 Patin Street
7 San Luis Obispo, CA 93401 -3249
8
9
10 DE TOLOSA PROMISSORY NOTE
11 SECURED BY DEED OF TRUST
12
13 $ 211,175.00 Date:_April 26, 2004
14 At San Luis Obispo, California
15
16 FOR VALUE RECEIVED, Joseph J. Reiciunuth and Monica A. Reiclunuth, Husband and Wife,
17 ( "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 Two Hundred Eleven Thousand One Hundred Seventy -Five Dollars
20 ($211,175.00) 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 11`h 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. Securih' 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 1582 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
35 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 I
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
17 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
19 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
35 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 May 2034.
39
40 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
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 until May 2034.
3
4 7. Prepavment. This Note may not be prepaid in whole or in part, unless called due by City.
5
6 S. Pavment. 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 govenmiental 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. Liability. 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 13. Severability. If any provision of this Note or any application of such provision be
29 declared by a court to be invalid or unenforceable, such invalidity or unenforceability shall not
30 affect any other application of such provision or the balance of the provisions hereof, which
31 shall, to the fullest extent possible, remain in full force and effect.
32
33 MAKER:
34
35 Joseph J. Reichmuth
36
37 �GL
38 Monica A. Reichmuth
39
40 (attach notarization)
41
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Affordable Housing Promissory Note
Page 5
CITY:
/ L
Ken Ham 'an, ity Ad iinistrative Officer
APPROVED AS TO FORM AND LEGAL EFFECT:
Jonathdn v, City Attomey
Title Order Number: 4009 - 760513
File Number: 4009- 760513
Exhibit "A"
Real property in the City of San Luis Obispo, County of San Luis Obispo, State of California, described as
follows:
PARCEL A:
LOT 35 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.
PARCEL B:
AN EASEMENT FOR SIDEYARD, LANDSCAPING AND INCIDENTAL PURPOSES OVER A 0.37 METER (1.21')
WIDE STRIP OF LAND OVER A PORTION OF LOT 34 OF TRACT NO. 2307, IN THE CITY OF SAN LUIS
OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN
BOOK 19 AT PAGE 77 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, SAID
STRIP LYING SOUTHEASTERLY OF THE FOLLOWING DESCRIBED LINE:
COMMENCING AT THE MOST NORTHERLY CORNER OF SAID LOT 34, ALSO BEING THE MOST EASTERLY
CORNER OF LOT 35 OF SAID TRACT NO. 2307;
THENCE ALONG THE LINE COMMON TO SAID LOTS, SOUTH 560 06'35" WEST 5.65 METERS (18.54') TO
THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID LINE, SOUTH 560 06' 35" WEST 3.86 METERS (12.66').
THE ABOVE DESCRIBED STRIP OF LAND IS GRAPHICALLY SHOWN ON EXHIBIT "E" ATTACHED HERETO
AND MADE A PART HEREOF.
APN: 053 - 511 -035
$r� AMERIC
}
STATE OF CA ORNIA }ss.
COUNTY OFCh��l��_J,�� (� }
On` `('\10�1 a
personally appeared
, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person(s)-whose name(s) is re
subscribed to the within instrument and acknowledged tome that he /sh the executed the same
in his /he the r authorized capacity(ies), and that by his/heG 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.
Signature
(This area for official notarial seal)
C/11 9tKARENL.00BURN
comm. # 1413283 <
-M'y Notary Public- California
County of San Luis Obispo r2
Comm. Exp, May 20, 2007
Title of Document fjVY1 �S
Date of Document Z gyp- Q 4 No. of l4ages
Other signatures not acknowledged
3008 (1/94) (General)
First American Title Insurance Company