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HomeMy WebLinkAbout1984-04-17; City Council; 7209-2; Acceptance of deed of trust and promisory note0 "2 3 0 oora.a. 2 O HOUSING ANT C C o - AGENDA BILL AR# 7-2o<?-^ MTG. 4/17/84 DEPT.RE D TITLE: ACCEPTANCE OF DEED OF TRUST AND PROMISSORY NOTE FOR CHINQUAPIN INVESTMENTS SENIOR HOUSING PROJECT OPPT. HDVVt^ CITY ATTYME& niTY MGR.<^*tX- RECOMMENDED ACTION: It is recommended that the City Council accept the Deed of Trust and promissory note for Chinquapin Investments as conditioned in the Senior Housing Ordinance. ITEM EXPLANATION: On December 7, 1982, the City Council approved CUP 220, a permit to construct a 37 unit senior citizen housing project at 987 Chinquapin. Pursuant to the provisions of the Senior Housing Ordinance, Section 21.18.045, the applicant is permitted to increase the density to 52 du/ac and reduce the required parking from 56 spaces to 25 spaces. It is also provisioned that if a developer wishes to take advantage of these special standards contained in the ordinance, the developer, as a condition of approval, shall grant the City an equity position in the project. This equity is secured by a second trust deed conveyed to the City by the developer. This Deed of Trust is held by the City to assure that the project is constructed, operated and maintained in accordance with the Senior Housing Ordinance and the conditional use permit. The developer has provided the City with the proper documentation to satisfy the equity condition of the ordinance. The City Council is asked to accept the Deed of Trust in the amount of $171,000 and promissory note from the applicant, Chinquapin Investments. FISCAL IMPACT; There will be no fiscal impact resulting from this action, EXHIBITS: 1 - Chinquapin Investments Deed of Trust 2 - Promissory Note RECORDING REOUESTf—1Y City Clerk City of Carlsbad AND WHEN RECORDED MAIL TO NAME City Clerk AOORESS 120° V™ AVSnUe CIT¥» Carlsbad, CA 92008 ~1 STATEZIPL_ _J Title Order No Escrow No DEED OF TRUST AND ASSIGNMENT OF RENTS BY THIS DEED OF TRUST, made this 7th CHINQUAPIN INVESTMENTS, a General 3229 Valley Street, Carlsbad, CA day of February ,19 84 .between Partnership , herein called Trustor, whose address is 92008(number and street) (city) (state zip) and SAFECO TITLE INSURANCE COMPANY, CITY OF CARLSBAD a California corporation, herein called Trustee, and , herein called Beneficiary, Trustor grants, transfers, and assigns to trustee, in trust, with power of sale, that property in The City of Carlsbad, San Diego County, California, described as: SEE EXHIBIT "A" ATTACHED for legal description See Exhibit "B" attached hereto and incorporated herein for additional provisions to this Deed of Trust Trustor also assigns to Beneficiary all rents, issues and profits of said realty reserving the right to collect and use the same except during continuance of default hereunder and during continuance of such default authorizing Beneficiary to collect and enforce the same by any lawful means in the name of any party hereto. For purpose of securing : (1 ) Payment of the indebtedness evidenced by one promissory note in the principal sum of $171 , 000 of even date herewith, payable to Beneficiary, and any extensions or renewals thereof; (2) the payment of any money that may be advanced by the Beneficiary to Trustor, or his successors, with interest thereon, evidenced by additional notes (indicating they are so secured) or by endorsement on the original note, executed by Trustor or his successor; (3) performance of each agreement of Trustor incorporated by reference or contained herein. On October 25, 1 973, identical fictitious Deeds of Trust were recorded in the offices of the County Recorders of the Counties of the State of California, the first page thereof appearing in the book and at the page of the records of the respective County Recorder as follows: COUNTY Book Page COUNTY Book Page COUNTY Book Page COUNTY Book Page Alameda 3540 89 Kings 1018 Alpine 18 753 Lake 743 Amador 250 243 Lassen 271 Butte 1870 678 Los Angeles T8512 Calaveras 368 92 Madera 1176 Colusa 409 347 Marin 2736 Contra Costa 7077 178 Mariposa 143 Del Norte 174 526 Mendocino 942 El Dorado 1229 594 Merced 1940 Fresno 6227 411 Modoc 225 Glenn 565 290 Mono 160 HumboWt 1213 31 Monterey 877 Imperial 1355 801 Napa 922 Inyo 205 660 Nevada 665 Kem 4809 2351 Orange 10961 394 Placer 1528 440 Siskiyou 697 407 552 Plumas 227 443 Solano 1860 581 367 Riverside 1973 139405 Sonoma 2810 975 751 Sacramento 731025 59 Stanislaus 2587 332 234 SanBenito 386 94 Sutler 817 182 463 San Bemai .mo 8294 877 Tehama 630 522 717 San Francisco B820 585 Trinity 161 393 242 SanJoaquin 3813 6 Tulare 3137 567 361 San Luis Obispo 1750 491 Tuolumne 396 309 668 SanMateo 6491 600 Ventura 4182 662 215 Santa Barbara 2486 1244 Yolo 1081 335 243 Santa Clara 0623 713 Yuba 564 163 96 Santa Cruz 2358 744 File No. 303 Shasta 1195 293 San Diego 73-299568 398 Sierra 59 439 The provisions contained in Section A. including paragraphs 1 through 5, and the provisions contained in Section B, including paragraphs 1 through 9 of said fictitious Deeds of Trust are incorporated herein as fully as though set forth at length and in full herein. The undersigned Trustor requests that a copy of any notice of default and any notice ofsale hereu/ider be maijjejl to Trustor at the address hereinabove set forth, being the address designated STATE OF CALIFORNIA, j > SSCOUNTY OF_San J)ie.go. ( On this the 2nd. day of -March 19 84. before me, the undersigned, a Notary Public in and for said County and State, personally appeared Mlcr)3 f^l D» O'Gara for the purpp«&£if receiving sujeh ngtfce /j ' // //</'•* /y /y / /^-i Michael D. O'Gara P T" f* R "i e^ f^trf" Cif f Vi *i n mi ^m "i n Tr»\7OT*t"mr*nf'^J. .1- CS O J. \Jt^^l I L. \J 2- <*~11 J.IIV^UCl^-'Xil X 11 V w 0 UVll^ii 1_ O cno urtTADv CCAI nn CTAUP Pxesidejot_of_- Chinquapin Investments ffLLL |LLJ . personally known to me or proved to me on the basis o! satisfactory evidence to be the personj^ whose nameCK) is tGK) subscribed to the within instrument and acknowlftdoed that J^e * execuleo the san^e '~ • i /- "~*"' ~-<L' ' \ , -') rn ~) ' <•^ *-<- ^ (~<^"^\ - _ ^.^i....L-l-i»A^s-.-L_A-_v-- - • /S**1?*^. »'HCl»i SIM BteT»tt VICKI L HARLANDE*fit%Tj8v7 "lATFl*LIC-ailf0'?-:*ff \S§8X SAN BERNARDINO COUNTY | SAFECO Stock No CAL-92 (Rev. 12-82) EXHIBIT "A" LEGAL DESCRIPTION That portion of Tract Two Hundred Thirty-eight of Thum Lands, in the County of 3ui- Dl^yu, Clute of California, according to Map thereof No. 1681, filed in the Office of the County Recorder of San Diego County, described as follows: Beginning at a point in the center line of Chinquapin Avenue, which said point is distant 557.93 feet on a bearing of South 61°21fOO" West from the center line inter- section of Chinquapin Avenue with the centerline of Adams Street; thence from the said beginning point South 28°39'00" East a distance of 259.00 feet; thence South 61°21'00" West a distance of 437.02 feet; thence North 28°39'00" West a distance of 259.00 feet to the center line of Chinquapin Avenue; thence North 61°21'00" East a distance of 437.02 feet along the center line of Chinquapin Avenue to the place of beginning. EXCEPTING that the following portion of said real property was by Grant Deed recorded October 11, 1966 as No. 163477, deeded to the State of California; "That portion of Tract 238 of Thum Lands, according to Map thereof No. 1681, filed in the Office of the County Recorder of San Diego County, December 9, 1915, described in the Deed to Gilbert R. Kidson, et ux, recorded October 25, 1944 in Book 1768 at Page 102, San Diego County Official Records, lying Westerly of the following described 1 i ne : Beginning at a point on the course described as South 72°57'48H West, 50.00 feet in the Deed to the State of California, recorded November 27, 1951 in Book 4302, Page 239, San Diego County Official Records, said point bears South 73°33'06" West, 25.00 feet from the Easterly terminus of said course; thence (1) North 18°17'05" West, 375.17 feet; thence C2) North 15°23'41" West, 44.24 feet; thence (3) North 21°24'23" West, 1131.23 feet to a point on the course described as South 12°27'32" East, 304.84 feet in the Deed to the State of California, recorded November 9, 1951 in Book 4287 at Page 97, San Diego County Official Records, last said point bears North 11052'12" West, 98.13 feet from the Southerly terminus of last said course. (ALSO) "EXCEPTING THEREFROM that portion conveyed to the State of California, in Proceeding No. 170970, Parcel 1, by Final Order of Condemnation, recorded January 19, 1953 in Book 4721 at Page 46, San Diego County Official Records." "The bearings and distances used in the above description are on the California Coordinate System, Zone 6. Multiply distance shown by 1.0000472 to obtain ground level distances." EXHIBIT "B" ADDITIONAL PROVISIONS TO SUBORDINATED DEED OF TRUST This deed of trust is given to the City of Carlsbad to insure that the maker thereof constructs, operates and maintains the property described in the Deed of Trust secured hereby as a Senior Citizens Housing Project in accordance with the requirements of said Section and Conditional Use Permit 220-A or if not so constructed, operated and maintained, that the maker hereby would allow the reduction of units to meet guidelines established through Conditional Use Permit 220-A and then such changes may be imposed by the City^of Carlsbad. No payment shall be required to the City of Carlsbad because of this Deed of Trust except as follows: 1. If the property is operated or maintained in violation of the requirement that no school age children occupy the property or is converted to a use permitting occupancy by school age children, the Carlsbad Unified School District may declare the maker hereof in default for an amount equal to the normal and customary fees then chargeable by the school district for the use of the property by school age children. Upon payment in full of the proper school fees, the Carlsbad Unified School District shall reconvey the lien of this Deed of Trust. 2. The entire amount of school fees shall become immediately due and payable at the option of the Carlsbad Unified School District in the event that upon the sale, conveyance or other disposition of the property described in the Deed of Trust, the buyer fails to agree in writing to accept and abide by all the terms and provisions of this Deed of Trust. The maker hereof shall have the right at any time to pay the then proper amount of school fees. Upon payment in full, the lien of this Deed of Trust shall be reconveyed. This Deed of Trust is given solely to conform with the requirements of the City of Carlsbad and neither the maker nor any partner, officer, agent or employee of the maker shall have personal liability for the reduction of the number of units. The holder thereof shall look only to its interest in the property described in this Deed of Trust, This Deed of Trust shall be subordinated and subject to any deeds of trust to be executed by Trustor or his successor in interest concurrently herewith or at any time hereafter: (1) To secure loans called "construction loans," "permanent loans" or any other form of loan, refinancing, additional financing, or promissory note given by the purchaser of the property; and (2) To secure the obligations to the City of Carlsbad pursuant to Section 21.18.045 of the Carlsbad Municipal Code and Conditional Use Permit 220-A, This Deed of Trust is specifically made subject and subordinate to that certain Deed of Trust dated February 7, 1984, executed by Chinquapin Investments, a General Partnership, in which Midwest Pacific Financial,, Inc. is named as beneficiary and Burlington Financial Service, Inc., a corporation as Trustee,' which is being recorded concurrently herewith. This Deed of Trust is further specifically made subject and subordinate to that certain Deed of Trust dated February 7, 1984, executed by Chinquapin Investments in which the City of Carlsbad is named as Beneficiary and Union Land Title Insurance Co., a corporation, as Trustee, CITY OF CARLSBAD CHINQUAPIN INVESTMEN By: MARY H. CASLER, Mayor STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss On 2nd March » 198_£_, before me, the undersigned, a Notary Public in and for said State, personally appeared Michael D. O'Gara, personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as Managing General Partner of the partners of the partnership that executed the within instrument, and acknowledged to me that such partnership executed the same. WITNESS my hand and official seal. Ml'chael D, "O'Gara, President Of HCi»l SHI VICKI L. HARLANOER NClMtY PUBLIC - CUtfORNII SAN BCRNARD1KO COUNTY *< temrnwor Upm Fetnuary 1i. 1W6 Notary PuMi'c in and for said County & State. u RENTAL AGREEMENT (RESIDENTIAL) THIS IS A LEGALLY BINDING AGREEMENT READ IT CAREFULLY This agreement is made at Carlsbad, California, on , 198 , between Chinquapin Senior Housing, hereinafter called Owner, and hereinafter called Resident, who agree as follows: 1. TERM The term of this agreement shall be for month(s) commencing , 198 , and terminating ' , 198 . (See HUD #2") 2. PROPERTY Owner hereby rents to Resident for the term of this agreement the property located at:_ , Apt. which includes Refrigerator: Yes No 3. RENT The monthly rental for the premises is $__ per month, which Resident agrees to pay Owner, in advance, without deduction or offset, at Owner's office at No. 1003-A Chinquapin Ave., Carlsbad, CA 92008. Rent shall be payable in installments as follows: A. The sum of $ upon execution of this Rental Agreement as rent for the period beginning , 198 . through , 198 B. The sum of $ _ for the period _ , 198 _ , through" _ , 198_ _ (.second month prorated) payable on _ _ , 198 initial C. The sum of $ on the first day of each calendar month commencing , 198 4. LATE CHARGES initial Recognizing that late payments cause Owner damage in an amount which is difficult to ascertain, Resident agrees to pay to Owner a charge of $15.00 as liquidated damages if the rent is not i paid on or before 5:00 P.M. on the 5th day of the month. In the event any check tendered by Resident as payment of rent is returned by the bank for "not sufficient funds" or "account closed," Resident shall be required to pay to Owner immediately a charge of $15.00 as liquidated damages. In the event any check is returned by bank for "not sufficient funds" or "account closed," Resident shall be required, at Owner's option, to make any future payments with cash, cashier's check, certified check, or postal money order. 5. SECURITY, REPAIR AND CLEANING DEPOSIT Resident shall pay Owner, upon execution of this agreement, a security deposit of $ . Said deposit shall be held by Owner as security for the faithful performance by Resident of all the terms of this agreement. Owner may at any time use any part or all of said deposit to remedy Resident's default in the payment of the rent, to repair damages caused by Resident (exclusive of ordinary wear and tear), and to clean the premises, if necessary, upon termin- ation of tenancy, to include painting, carpet cleaning and drapery cleaning. If any part of the security deposit is so utilized by Owner during the term of tenancy, Resident agrees to reinstate said total security deposit upon five (5) days written notice delivered to Resident in person or by mailing. No later than (.2) weeks after Resident has vacated the premises, the owner shall furnish Resident with an itemized written statement of the disposition of such security deposit and shall return any remaining portion of said deposit to Resident. 6. ACCEPTANCE AND SURRENDER OF PREMISES Resident accepts said premises and appliances listed herein as is, and as being in good sanitary condition and repair and agrees at the termination of this Rental Agreement to peaceably surrender same to Owner in a clean and satisfactory condition. Resident has inspected the premises, including but not limited to the windows, doors, plumbing facilities, hot and cold water supply, heating facilities, electrical lighting, building grounds and appurtenances and receptacles for trash, and accepts the same "as is," and acknowledges that the same are in good condition and/or repair, unless noted to the contrary in this Agreement. Resident shall, upon vacating, deliver all keys for the demised premises to Owner, or remain liable for the payment of rent until said delivery is made. 7. USE OF PREMISES A. The premises are rented for residential use only and shall be occupied by not more than two.... adult (s). B. No dogs, cats, birds, or other pets of any kind shall be kept or allowed on the premises. C. Resident shall not disturb, annoy, endanger or inconvenience other residents or neighbors, nor use the premises for any immortal or unlawful purpose, nor violate any law or .ordinance, nor commit waste or nuisance upon or about the prem- ises. Owner agrees to prevent other residents and other persons in the building or common areas from similarly disturbing Resi- dent's peace and quiet. 8. RESIDENT'S DUTY TO MAINTAIN PREMISES A. Resident shall keep the dwelling unit in a clean and sanitary condition and shall otherwise comply with all state and local laws requiring Residents to maintain rented premises. If damage to the dwelling until (other than normal wear and tear) is caused by acts or neglect of Resident or others occupying the premises with his permission, Resident may repair such damage at his own expense. Upon Resident's failure to make such repairs, after reasonable notice by Owner, Owner may cause such repairs to be made and Resident shall be liable to Owner for any reasonable expense thereby incurred by Owner. B. Resident shall not make( or suffer any alteration or repairs to be made to the premises without the written consent of Owner. C. Resident shall immediately notify Owner should any plumbing, electrical, mechanical or other equipment or part of the premises become damaged, faulty or in disrepair. 9. UTILITIES Resident shall pay for all electricity and other utilities consumed on said premises; Owner agrees to pay for reasonable water which Resident shall not use in a wasteful, unreasonable, or arduous manner or extent. Resident shall not perform any on-site car washing. -3- 7 10. INSPECTION BY OWNER Upon reasonable advance notice of at least twenty-four (24) hours, Resident shall make the premises available during normal business hours to Owner or his agent for the purposes of: making necessary or agreed repairs, decorations, alterations or improvements, supplying necessary or agreed services, or exhibiting the premises to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. Normal business hours are hereby agreed to be: 8:00 a.m. to 6:00 p.m., Monday through Saturdays (except holidays). In case of emergency, Owner or his agent may enter the premises at any time without notice to, or permission of, Resi- dent for the purpose of making corrections or repairs to alle- viate such emergency. 11. HOLDOVERS If Resident holds over upon termination of this agree- ment and Owner accepts Resident's tender of the monthly rent provided by this agreement, this agreement shall continue to be binding on the parties as a month-to-month agreement. 12. WAIVER OF LIABILITY Owner shall not be liable for damages by reason of any injury to any person, including Resident and his family, or to any property belonging to any person, including Resident and his family (except as caused by Owner's negligence), which injuries or damages may in any way be connected with said premises or the land surrounding said premises, storage rooms or the swimming pool on said premises, or the acts or neglects of co-residents, or other occupants of said premises, or of any owners or occu- pants of adjacent and contiguous property, and Resident hereby agrees to indemnity and hold harmless Owner from any liability, loss or obligation resulting from any such injuries or damages. 13. NOTICE Owner may terminate this agreement during the term thereof or any extensions thereof for non-payment of rent or default in performance of the provisions of this agreement by giving Resi- dent a three (3) day written notice. Owner may terminate this agreement for any other reason at any time upon giving at least thirty (30) days written notice of its election to do so to Resident prior to termination of the term. During any month- to-month tenancy, Resident shall give notice in writing to Owner thirty (30) days prior to the date Resident desires to vacate said premises. Resident shall be liable for a full thirty (30) days rent from the date of giving notice. 14. ATTORNEY FEES If any legal action or proceeding is instituted by either Owner or Resident to enforce any part of this Agreement, the prevailing party shall recover, in addition to all other relief, reasonable attorneys fees and costs. 15. AMENDMENTS TO AGREEMENT This agreement cannot be altered, amended or changed in any manner whatsoever unless in writing and properly signed by Owner and Resident. 16. SUBLETTING Resident shall not let or sublet all or any part of the premises nor assign this agreement or any interest in it without the prior written consent of Owner. 17. JOINT AND SEVERAL RESPONSIBILITY Each Resident of the premises rented pursuant to this Agreement shall have joint and several liability for all terms and conditions herein including, but not limited to, the payment of rent. 18. WAIVER OF BREACH The waiver by Owner of any breach shall not be con- strued to be a continuing waiver of any subsequent breach. 19. COMPLIANCE WITH CARLSBAD SENIOR HOUSING REQUIREMENTS Resident acknowledges that he/she will no longer be eligible for occupancy of the premises and must immediately vacate the premises upon failure to meefc the following conditions which are requirements of the City of Carlsbad imposed directly upon Resident: A. The minimum age of at least one occupant of each apartment shall be sixty-two years of age. B. There shall be no more than two people residing in any one-bedroom apartment, and the second person shall be over twenty-five. C. There shall be no school age children under twenty-five occupying an apartment for any reason. -5- Resident agrees to certify to Owner and/or the City of Carlsbad, at such times as may be requested, the continuing accuracy of the above conditions and to promptly notify Owner of any changes causing Resident to become ineligible to continue occupancy of the premises. Resident represents to Owner and the City of Carlsbad that, as of the date of this Agreement, Resident fully complies with all the foregoing conditions. Resident further represents that if Resident is now or in the future becomes unable to live on a totally independent basis because of age or infirmity, Resident's level of function and degree of competence in performing daily living activities is or will remain such that he/she possesses the ability to sustain relative independence given the nature of the premises. LESSOR: CHINQUAPIN SENIOR HOUSING LESSEE; By: • • --• _- AGENT FOR OWNER Receipt of Rules and Regulations initial initial -6- PROMISSORY NOTE $171,000.00 February 7, 198*4 Carlsbad, CA 92008 FOR VALUE RECEIVED, the undersigned promises to pay to the City of Carlsbad at Carlsbad, California, the sum of $171,000.00 with interest at the rate of ten percent (10%) per-annum simple interest until paid or cancelled as herein provided. This note is given to the City of Carlsbad pursuant to Section 21.18.0^5 of the Carlsbad Municipal Code to insure that the maker hereof constructs, operates and maintains the property described in the deed of trust secured hereby as a Senior Citizen Housing Project in accordance with the requirements of said Section and Conditional Use Permit 220-A, or if not so constructed, operated and maintained, that the property is brought up to the standards of the approved conversion plan pursuant to CUP 220A or any other conversion plan approved by the City of Carlsbad. No payment shall be required on this note except as follows: 1. If the Council of the City of Carlsbad or any successor thereto determines that the property is being operated or maintained in violation of any of the terms of said Section 21.18.0^5 or said Conditional Use Permit 220-A, or used for other than a Senior Citizens Housing Project without the consent of the City Council, the City Council may declare the whole sum of principal and any accrued interest thereon immediately due and payable. The maker hereof shall then have the option to elect to pay said principal and accrued interest in full or within a reasonable time thereafter to convert the project to meet the approved conversion plan pursuant to CUP22DA or any other conversion plan approved by the City of Carlsbad. Upon said payment in full or conversion of the project to the approved conversion plan pursuant to CUP22QA or any other conversion plan approved by the City of Carlsbad, the City of Carlsbad shall return this note to the maker "and reconvey the lien of the deed of trust securing this note. 2. The entire principal and accrued interest thereon shall be come immediately due and payable at the option of the City of Carlsbad in the event that upon the sale, conveyance or othere disposition of the property described in the deed of trust securing this note, the buyer fails to agree in writing to accept and abide by all the terms and provisions of this promissory note. The maker shall have.the right at any time to prepay all or any part of this note or to elect to convert the property to meet the approved conversion plan pursuant to CUP 217 or any other conversion plan approved by the City of Carlsbad. Upon prepayment in full or such conversion of the property, this note shall be cancelled and the lien of the deed of trust securing this note shall be reconveyed to the maker hereof. This note is given solely to conform with the provisions of said Section 21.18.01+5 of the Carlsbad Municipal Code and neither the maker nor any partner, officer, agent or employee of the maker shall have personal liability for payment of this note. The holder hereof shall look only to its interest in the property secured hereby for payment. If action be instituted on this note, the undersigned promises to pay such sum as a court may affix as attorneys' fees. This note is secured by a deed of trust to Saf§cp_J1tle_Jnsuranc^_Corngan^ as Trustee. I SAFECO TITLE INSURANCE .9- STATE OF CALIFORNIA COUNTY OF San Diego Onthistne-___9±h ss. said State, personally appeared Michael D. O'Gara . day nt April I9o4 , before me, the undersigned, a Notary Public in and for _ O .., personally known to me or proved to me on the basis of satisfactory evidence to be the person who executed the within instrument as General Partner of partners of the partnership that executed the within instrument, and acknowledged to me that such partnership executed the same. WITNESS my hand andofficial seal Signature E. Lynne Riemer FOR NOTARY SEAL OR STAMP '! NOT'TV PJTLIC - C-" :"C'"niA s",;: DIEGO COJNTY My Commission Expires Mar. 29, 1985 I!