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HomeMy WebLinkAboutD-1891 1043 Ella Street #10 security for note Recorded 06/30/2011Fidelity National Title Company m 599 Higuera Street, Suite B, San Luis Obispo, CA 93401 805 7825900 • FAX 805 7825909 ATTN: Michael Codron/Tyler Corey DATE: June 30, 2011 City of San Luis Obispo ESCROW NO.: 11- 400104878 -CO 919 Palm Street LOAN NO.: n/a San Luis Obispo, CA 93401 BORROWER(S): Daniel L. Slusser and Sara J. Slusser PROPERTY ADDRESS: 1043 Ella Street #10, San Luis Obispo, CA 93401 We enclose the following documents and /or papers in connection with the above- referenced loan: - Original Promissory Note Escrow has closed and all documents have been recorded as of June 30, 2011. Your policy of title insurance will follow under separate cover. We trust that this transaction has been handled to your satisfaction and look forward to the opportunity of serving you again in the near future. Thank you! Sincerely, indy Opray Escrow Officer 805 782 -6900 EO enclosure(s) Closing Letter — Lender /Mortgage Broker (clslnmtg) (10-03) (Rev. 12 -09) N.- it 1 2 3 4 5 6 7 8 9 10 1.1 12 1.3 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 29 30 31. 32 33 34. 35 36 37 38 39 40 41 42 43 44 45 46 City Clerk City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 -3249 $ 162,050 PROMISSORY NOTE - SECURED BY DEED OF TRUST Date: , ZD1 L At San Luis Obispo, California FOR VALUE RECEIVED, Daniel L Slusser and Sara J Slusser, ( "Maker ") promises to pay to the order of the City of San Luis Obispo ( "City ") at 990 Palm Street, San Luis Obispo, California 93401 or such other address as City may from time to time designate, the sum of the difference between the appraised market value and restricted sales price one hundred sixty -two thousand z t y Dollars ($162,050.00) according to the terms set forth herein. This Note shall accrue interest, compounded monthly, at an annual rate of 4.5 percentage points added to the 11th District Cost of Funds, as published by the Federal Home Loan Bank Board, amortized over 30 years. The Loan shall be amortized over thirty years, with monthly payments of principal and interest due and payable to the City on the first day of each month unless waived or forgiven, as set forth below. 1. Security for Note. This Note is secured by a deed of trust dated . a y �_ g of I herewith (the "Deed of Trust ") executed by Maker, as Trustor, and naming City as Beneficiary, covering_ certain real property ( "the Property") owned by Maker in the County of San Luis Obispo, State of California, commonly knows as 1.043 Ella Street #10, San Luis Obispo, which Property is more particularly described in Exhibit A, attached hereto. 2. Incorporation of Affordable Housing Agreement. This Note and the Deed of Trust are executed and delivered pursuant to that certain Affordable Housing Agreement" recorded in the County of San Luis Obispo on April 1. 2008, regarding affordable housing requirements applying to Tract 2865, the Terrace Commons residential development: Pursuant to the Affordable Housing Agreement and Deed of Trust, Maker is to live at the Property. Consequently, this Note is subject to section 711.5 of the California Civil Code, which grants to City the authority to accelerate all amounts due under this Note if any subsequent transfer of the Property at any time does not comply with the provisions of the Affordable Housing Agreement or Deed of Trust. The Affordable Housing Agreement is incorporated herein by this reference as though set forth in its entirety and attached hereto as Exhibit B. 3. City's Right of First Refusal. Upon resale, the City or the Housing Authority of the City of San Luis Obispo shall have the first right of refusal to purchase the property at then current 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Affordable Housing Promissory Note Page 2 • appraised value. The consideration for the City's right of first refusal shall consist of I percent of the principal balance remaining on the City's loan. If the City chooses to exercise the purchase option, any accrued interest shall be forgiven and the principal balance of the City loan remaining after deducting this 1 percent of the loan balance shall be credited toward -the purchase price. The provisions of this section shall not impair the rights of a first mortgage lender secured by a recorded deed of trust. The purchase money lender shall have a higher priority than the City's loan. The City's security shall be prioritized as a second mortgage. This first priority applies to the purchase money lender's assignee or successor in interest, to:. i. Foreclose on the subject property pursuant to the remedies permitted by law and written in a recorded contract or deed of trust; or ii. Accept a deed of trust or assignment to the extent of the value of the unpaid first mortgage to the current market value in lieu of foreclosure in the event of default by a trustor; or iii. Sell the property to any person at a fair market value price subsequent to exercising its rights under the deed of trust. Any value in excess of the unpaid mortgage and costs of sale administration shall be used to satisfy the City loan. In no case may a first mortgage lender, exercising foreclosure assignment in -lieu of foreclosure or sale, obtain value or rights to value greater than the value of the outstanding indebtedness on the first mortgage at the time of the debt clearing action. The following types of transfers shall remain subject to the requirements of the City's loan and right of first refusal: transfer by gift, devise, or inheritance .to the owner's spouse; transfer to a surviving joint tenant; transfer to a spouse as part of divorce or dissolution proceedings; or acquisition in conjunction with a marriage. 4. Due_ on Transfer. In the event Maker sells, leases, rents or otherwise transfers the Property to any person or entity other than an "eligible household" (as such term is defined in the Affordable Housing Agreement), then the Principal of and accrued interest on the Loan shall be immediately due and payable to the City as set forth in the Deed of Trust in favor of City recorded simultaneously herewith as a second deed of trust subordinate to the deed of trust of the first mortgage lender on the Property. 5. Waiver of .Principal. and Interest. City waives timely payment of the Principal of and interest on the Loan for such time as Maker, who has been determined by City or its Housing Authority to be an eligible buyer, remains as the owner and occupant of the Property as Maker's principal residence until May 20, 2056. Affordable Housing Promissory Note Page 3 1 6. Forgiveness of Loan. City will forgive the repayment of the outstanding Principal of the 2 Loan and all interest thereon as long as Maker, or subsequent buyer determined by City or its 3 Housing Authority to be an eligible household, remains as the owner and occupant of the 4 Property as Maker's principal residence until May 20,.2056. 5 6 7. Prepayment. This Note may not be prep_ aid in whole or in part, unless called due by City. 7 8 8. Payment. The amount due under this Note shall be paid without the necessity for notice 9 or demand by City. 10 11 9. Payment Amount. The amount due under this Note shall be paid from the net proceeds 12 as a result of any transfer. Net proceeds is the sales price minus any loans or liens that are senior 1.3 to this Note and minus closing costs. 14 15 10. Default Defined. In addition to other defaults referred to in this Note and the Deed of 16 Trust, it shall be a default under this Note if Maker fails to make any payment or perform. any 17 obligation under or in connection with (a) this Note, (b) the Deed of Trust, or (c) any other note, 18 trust deed or other obligation of Maker relating to the Property, including but not limited to the 19 Affordable Housing Agreement, or .secured by all or any part of the Property, whether junior or 20 senior to this Note, and if such failure is not cured within such time as may be permitted by the 21 obligation or the obligee. 22 23 11. Options of City upon Default. Upon the occurrence of a default, City shall have the 24 option, without further notice or demand: 25 26 (a) To declare the Note to be immediately due and payable; 27 28 (b) If the default relates to a transfer of the Property, to bring an action at law or in 29 equity to require Maker and the proposed transferee to terminate and/or rescind the sales 30 contract or lease and /or to declare the transfer void, notwithstanding that the transfer may 31 have closed and become final as between Maker and the transferee; or 32 33 (c) To pursue any other remedy available under this Note or the Deed of Trust, or 34 at law or in equity or under any other agreement, instrument or document entered into by 35 Maker and City, or as provided in the Affordable Housing Agreement. 36 37 12. Failure to Exercise Options. Failure to exercise any such option upon the occurrence of 38 one or more events of default shall not constitute a waiver of City's right to exercise any such 39 option at a later time. 40 • • Affordable Housing Promissory Note Page 4 1 13. Costs of Enforcement and Collection. If Maker defaults under this Note, Maker shall 2 pay all costs of enforcement and collection, including, but not limited to, costs and attorney's fees 3 whether or not such enforcement or collection includes filing a lawsuit or prosecution of a 4 lawsuit, if filed. 5 6 14. City's Right to Transfer Interest in Note. City and any subsequent holder of this Note 7 may at any time, without consent of Maker, sell, assign, pledge, hypothecate, transfer and 8 negotiate or grant participation in any part of or any interest in City's rights and benefits under 9 this Note to another governmental body or nonprofit organization which is eligible to receive 10 such transfer under state and federal law. 11 12 15. Waiver of Notice and Statute of Limitations. Except for any notice expressly required 13 by this Note, Maker waives demand, notice of demand, presentation for payment, notice of non- 14 payment or dishonor, protest and notice of protest. To the fullest extent permitted by law, Maker 15 waives the defense of the statute of limitations in any action on this Note or to recover on the 16 security for this Note. 17 18 16. Liability. City's acceptance of any payment under this Note which is less than payment in 19 full of all amounts then due and payable, or the granting of any extension of time for payment of 20 any amount due under this Note or for the performance of any covenant, condition or agreement 21 entered into by Maker and City, or City's grant of any other indulgence to Maker, or City's taking 22 or release of other or additional security for the indebtedness evidenced hereby, or any other 23 modification or amendment of this Note shall in no way release or discharge the liability of 24 Maker or any endorser, guarantor or other person secondarily liable for this Note. 25 26 17. Governing Law. This Note shall be governed by the laws of the State of California. 27 Maker agrees that the site of any hearing or action of whatever nature or kind regarding this Note 28 shall be conducted in the County of San Luis Obispo, State of California. 29 30 18. Severability. If any, provision of this Note or any application of such provision be 31 declared by a court to be invalid or unenforceable, such invalidity or unenforceability shall not 32 affect any other application of such provision or the balance of the provisions hereof, which 33 shall, to the fullest extent possible, remain in full force and effect. 34 35 MAKER: 36 37 Daniel L. Slusser 38 (attach notarization) 39 40 41 ara J. lusser 1 2 3 4 5 6 7 8 10 11 12 13 14 15 1( 18 19 20 21 22 2.3 24 25 26 27 28 29 30 3.1 32 33 34 35 36 37 38 39 40 Affordable Housing Promissory Note Page 5 CITY: Katie Lichtig, City anager APPROVED AS TO FORM: stine Dietrick, City Attorney State of California } County of San Luis Obispo } On May 18, 2011 , before me, Laurie L. Thomas, Notary.Public , ate Name and Title ot the Otticer personally appeared, Daniel L. and Sara J. Slusser , Name ot Signer(s) who proved to me on the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons 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. LAURIE L. THOMAS Commission # 1791185 WITNESS my hand and official seal. a Notary Public - California San Luis Obispo County Signature Signature of otary Public Place Notary Seal Above • t Exhibit "A" Affordable Housing Promissory Note Page 6 Legal Description THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN LUIS OBISPO, COUNTY OF SAN LUIS OBISPO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: Parcel 1: An undivided 1 /16th interest in Lot 1 of Tract No. 2865, in the City of San Luis Obispo, County of San Luis Obispo, State of California, according to the Map recorded April 1, 2008, in Book 31, Page 30 of Maps, in the office of the County Recorder of said County. Except therefrom Units 1 through 16 and the exclusive use common area appurtenant to each unit as disclosed and delineated on the Condominium Plan recorded April 1, 2008, Instrument No. 2008016266, Official Records. Parcel 2: Unit 10 together with the exclusive use common areas appurtenant to each unit as disclosed and delineated on the Condominium. Plan recorded April 1; 2008, Instrument No. 2008016266, Official Records. 3 JULIE ROi D MEL. San Luis Obispo C — Clerk/Recorder 4/01/2008 Recorded at the request of 8:12 AM Chicago Title Company RECORDING REQUESTED BY: City of San Luis Obispo WHEN RECORDED MAIL TO: Community Development Department City of San Luis Obispo 919 Palm Street San Luis Obispo, CA 93401 -3218 2008016267 1111111111111111111111111111 Titles: 1 Pages: 6 Fees 0.00 Taxes 0.00 Others 0.00 PAID $0.00 Exhibit "B" AFFORDABILITY AGREEMENT /DEED OF TRUST COVENANTS FOR TRACT 2865 THIS AGREEMENT is made and entered into this qW day of M,44cH , 2008 , by and between the City of San Luis Obispo (the "City ") and _ Adelaida Prroperties. L.P., a California Limited Partnership (Owner) collectively referred to as "the parties." RECITALS A. In 2007 , the City Council adopted Resolution No. 9876 -07 ; approving a condominium conversion project to be identified as Terrace Commons with sixteen dwellings and _ 16,576 total square feet (1,036 square feet each) of floor area, located at 1043 Ella Street ("the project "); and B. Project Condition (in Resolution No. 9876 -07, Section 2. Approval Subject to Conditions, Item 8,) of that approval requires the applicant to provide a minimum of two two - bedroom "very lows' category affordable dwelling units, including at least—: .0- rentals and two for -sale units; and C. The parties have agreed that the Owner shall construct and sell homes in conformance with the City's Affordable Housing Standards; and D. The City and Owner desire to assure that the affordable dwelling units identified in this agreement remain affordable to very low, low or moderate income households for a period of at least 45 years. NOW, THEREFORE, the parties acknowledge and agree as follows: ARTICLE 1. DEFINITIONS 1.01. "Moderate income households" means persons and families whose income does not exceed 120 percent of the County of San Luis Obispo area median income, adjusted, for family size pursuant to the City of San Luis Obispo Affordable Housing Standards. 1.02. "Low income households" means persons and families whose income does not exceed 80 percent of the County of San Luis Obispo area median income, adjusted for family size pursuant to the City of San Luis Obispo Affordable Housing Standards. 1.02.5 "Very low income households" means persons and families whose income does not i exceed 50 percent of the County of San Luis Obispo area median income, adjusted for family size pursuant to the City of San Luis Obispo Affordable Housing Standards. 1.03 Persons and families meeting the definition under Sections 1.01 and 1.02 shall be referred to as "eligible households." 1.04 `The properties" shall mean those specific real properties described in this agreement, intended to be sold to and occupied by eligible households. ARTICLE 2. RESTRICTIONS 2.01. The two units, which shall be Unit 8 (which shall have the mailing address of 1043 Ella Street #8) and Unit 10 (which shall have the mailing address of 1043 Ella Street #10) to be constructed on the properties shall be used for owner- occupied housing purposes and shall be sold to eligible households. At initial sale, the sales prices shall be determined at time of building occupancy release, in accordance with City of San Luis Obispo Affordable Housing Standards. For subsequent sales to eligible households, sales prices shall be based on and consistent with then current City Affordable Housing Standards. 2.02. The grant deed from Owner, or Owner's successors in interest and all future grant deeds for transfers of interest in the properties shall contain a restriction providing that for the period of time specified in this Agreement, there shall be no sale, lease, rental, or other transfer of the properties except for the sale to and occupation by eligible very low income households. Any sale, lease, rental, or other transfer of the property in violation of this covenant shall be void. 2.03. The Owner agrees to retain the Housing Authority of the City of San Luis Obispo, or other qualified entity acceptable to the City, for screening of potential buyers to determine if they qualify as eligible households. 2.04. These affordability requirements shall be covenants running with the land as defined in California Civil Code Section 1460, and shall apply to the properties as shown on Exhibit A. Pursuant to Civil Code Section 1468, which governs such covenants, the provisions of this Agreement shall be binding upon all parties having any right, title, or interest in any of the properties described herein, or any portion thereof and on their heirs, successors in interest and assigns for a period of 45 years from the date of occupancy of the property. The parties agree that all future deeds or transfers of interest regarding the properties shall show the restrictions of this Agreement for as long as the Agreement is in effect. 2.05. When a designated affordable housing unit is first sold to an eligible buyer, the buyer and City shall enter into an Affordable Housing Agreement which shall be recorded as an encumbrance on the property, and secured by a recorded deed of trust. Said agreement and deed of trust shall establish the monetary difference between the initial purchase price and the initial appraised value as a loan payable to the City. Said loan shall accrue interest, compounded annually, at an annual rate equal to 4.5 points F4 added to the 11th District Cost of Funds as currently published by the Federal Home Loan Bank Board, amortized over 30 years, and the monthly payments of principal and interest shall be waived by the City as long as the owner previously approved by the City Housing Authority as an eligible household, or subsequent buyers approved by the Housing Authority as eligible households, continue to own and reside in the property subject to the City loan as his or her principal residence. 2.06. If a designated affordable housing unit is sold, leased, or otherwise transferred to an entity other than to an eligible household, in violation of this agreement, the City's loan shall immediately become due and payable from the proceeds of sale of the property. "Proceeds of sale" shall mean the value of any and all consideration, however denominated, received or to be received by the Seller from the sale of the property after the payment of the first deed of trust. 2.07. Upon resale, the City or the Housing Authority of the City of San Luis Obispo shall have the first right of refusal to purchase the property or properties at current appraised value. The consideration for the City's right of first refusal shall consist of 1 percent of the remaining City loan balance. The balance of the City loan remaining after deducting this 1 percent of the loan balance shall be credited toward the purchase price if the City chooses to exercise the purchase option. The provisions of this section shall not impair the rights of a first mortgage lender secured by a recorded deed of trust. The purchase money lender shall have a higher priority than the City's loan. The City's security shall be prioritized as a second mortgage. This first priority applies to the purchase money lender's assignee or successor in interest, to: (i) Foreclose on the subject property pursuant to the remedies permitted by law and written in a recorded contract or deed of trust; or (ii) Accept a deed of trust or assignment to the extent of the value of the unpaid first mortgage to the current market value in lieu of foreclosure in the event of default by a trustor; or. (iii) Sell the property to any person at a fair market value price subsequent to exercising its rights under the deed of trust. Any value in excess of the unpaid mortgage and costs of sale administration shall be used to satisfy the City loan. In no case may a first mortgage lender, exercising foreclosure assignment in -lieu of foreclosure or sale, obtain value or rights to value greater than the value of the outstanding indebtedness on the first mortgage at the time of the debt clearing action. In addition, the following types of transfers shall remain subject to the requirements of the City's loan and right of first refusal: transfer by gift, devise, or inheritance to the owner's-spouse; transfer to a surviving joint tenant; transfer to a spouse as part of divorce or dissolution proceedings; or acquisition in conjunction with a marriage. 3 - ARTICLE 3. TIMING i. 3.01. In the event the Owner has not completed the construction of the housing units and received a final building inspection on all units within two years from the date of conveyance of the Grant Deed, the property ownership and control of the properties shall revert to the City. Extensions of this period of time may be granted at the discretion of the City if the developer has demonstrated just cause and a "good faith" effort to develop the property. ARTICLE-4. GENERAL 4.01. Required notices shall be sent by certified mail, return receipt requested, to the following addresses: If to the City: City of San Luis Obispo Community Development Director 919 Palm Street San Luis Obispo, CA 93401 -3218 If to the Owners: Adelaida Properties, LP Attn: Brian Rolph, Managing Partner 1063 Ella Street San Luis Obispo, CA 93401 4.02. The Owner hereby specifically acknowledges and agrees to be bound by the covenants respecting affordability on the Property contained herein. IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned as of the date set forth ,Blow. Brian Rolph, Managing Partner CITY: On C. f John Mandeville, Comm evelopment Director By Kim Murry, Acting Director 4 � lqoz - - Date APPROVED AS TO FORM: JO HAN P. LOWFLL Attorney • ' State of California } County of San Luis Obispo } On )Mn� 8 , 2008, before me, icy e', Sj l, xaj , , Notary Public, personally appeared Brian Rolah who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which the person 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 hand and official seal. - Mm � Motary Public Capacity claimed by signer(s): DIANE R. STUART COMM. #1581455 OTARY PUBLIC • CALFF2O!j SM Ul1S OBISPO Ily Corms. Expires June 2 ( ) individual(s) ( ) corporation ( X ) partnership ( ) attorney -in -fact ( ) political agency State of California County of San Luis Obispo) On Mo Y(`)j2� - 1 ` , 2008, before me, T) 1u��, Sj UQL I , Notary Public, personally appeared Kim Murry, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that. by her signature on the instrument the person or the entity upon behalf of which the person 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 hand and official seal. 1 ,r Notary Public Capacity claimed by signer(s): ( ) individual(s) ( ) corporation () partnership DIANE R. STUAF T COMM. #1581455 i7 VOTARY PUBLIC • CAUFOFMR r • SAN LUIS OBISPO COUNTY a �y Comm. Expires June 20.2009 ( ) attorney -in -fact ( X ) political agency • EXHIBIT "All I Parcel l: Lot of Tract No. 2865, in the City of San Luis Obispo, County of San Luis Obispo, State of California, according to the map recorded 04 - of - 0$ in Book 31 , Page 3x-31 of Maps, in the office of the County Recorder of said County. EXCEPT THEREFROM Units L through L and the appurtenant areas as disclosed and delineated on the Condominium Plan recorded N -01 - 0$ as document no. 2008- oiLvxdo of Official Records. Parcel 2: Units 8 and 10 with appurtenant areas as disclosed and delineated on the Condominium Plan recorded 04- 01- dg as document no. 2008- otugu(p of Official Records. END OF DOCUMENT