HomeMy WebLinkAboutAgr 2009-06-02 (Marin Housing Authority)* * OLD REPUBLIC TITLE COMPANY
* 9t* 545 Fourth Street - San Rafael CA - 94901 - (415) 454-8300 - FAX (415) 453-3563
June 5, 2009
EE ~ E 'S E
Attn: Ann
The Town of Tiburon - JUN _ 8 ?009
1155 Tiburon Blvd.
Tiburon, CA 94920 TOWN ATTORNEY'S OFFICE
TOWN OF TIBURON
Re: Your Loan No.:
Borrower: The Housing Authority of the County of Marin
Escrow No.: 0435009246-CB
Property: 32 Marsh Road, Tiburon, CA 94920
Dear Ann
The escrow covering the new financing on the above referenced property has been closed. The document
securing your loan was recorded on 6/5/2009.
In connection with the completion of this escrow, we are enclosing the following:
1. Certified Copy of HUD-1 Settlement Statement
2. original Promissory Note
We appreciated the opportunity to work with you in this transaction and hope that it was handled to your
satisfaction. We look forward to working with you again in the near future.
If you have any questions, please feel free to contact me.
Sincerely,
revlfK~
Caren Bearinger
Sr. Commercial Escrow Officer
enclosures: as noted above
e
a,
CB/cb
PROMISSORY NOTE
$140,000
San Rafael, California
JUNE 2, 2009
FOR VALUE RECEIVED, the HOUSING AUTHORITY OF THE COUNTY OF
MARIN, a public body corporate and politic, (the "Authority"), hereby promises
to pay to the order of the TOWN OF TIBURON, a public body corporate and
politic ("Tiburon"), at 1505 Tiburon Boulevard, Tiburon, CA 94920, or at such
other place or to such other party as Tiburon may from time to time designate in
writing, the principal sum of $140,000 (One Hundred and Forty Thousand
Dollars), together with accrued interest on the unpaid principal from time to time
outstanding, as set forth in this Note until fully paid.
This promissory note (this "Note") shall be due and payable upon any conveyance
to a third party by the Authority of that certain real property and improvements
thereon located at 32 Marsh Road, Tiburon, CA, 94920, and having Assessor's
Parcel No. 058-440-03 (the "Property"). Commencing the date hereof, this Note
shall accrue interest at a per annum percentage rate equal to the average interest
rate paid by the Local Agency Investment Fund during the duration of the loan.
All accrued interest shall be calculated at a daily rate of 1/365 of one (1) year's
interest times the exact number of days principal is outstanding. Accrued interest
shall be due and payable concurrently with the payment of principal as herein
provided.
This Note is secured by that certain Deed of Trust with Assignment of Rents (the
"Deed of Trust") of even date herewith, made by the Authority, as trustor, for the
benefit of Tiburon, as beneficiary, and recorded against the Property.
Prepayment of the principal and all accrued interest on this Note shall be allowed
at any time, and from time to time, without penalty, and any such prepayment
shall be applied first to interest accrued but unpaid to such date on the outstanding
principal balance hereof immediately preceding such prepayment and then to
reduction of the principal balance hereof.
The Authority shall pay immediately upon demand all costs and expenses of
Tiburon, including reasonable attorneys' fees, if, after default, this Note is placed
in the hands of an attorney or attorneys for collection.
The Authority expressly waives presentment, protest and demand, notice of
protest, demand, int6ntion to accelerate the maturity of this Note and dishonor and
nonpayment of this Note, and all other notices of any kind, and expressly agrees
that this Note, or any payment hereunder, may be extended from time to time
without in any way affecting the liability of the Authority and endorsers hereof.
No single or partial exercise of any power hereunder shall preclude other or
further exercise thereof or the exercise of any other power. No delay or omission
on the part of Tiburon in exercising any right hereunder shall operate as a waiver
of such right or of any other right under this Note.
This Note shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, the undersigned has caused this Note to be
executed at San Rafael, California as of the date first set forth above.
"Authority"
HOUSING AUTHORITY OF THE
CO Y O MARIN
Daniel Nackerman
Executive Director
1w.
2
RECORDING REQUESTED BY:
Old Republic Title Company
ORDER NO.: 0435009246
APN: 058-440-03
WHEN RECORDED MAIL TO
Recorded I REC FEE
Official Records I
County of I
Marzn I
~'UHN C. THAYER I
Assessor-Recorder I
i
I AD
08:36AM 05-Jun-2009 I Page 1 of 5
The Town of Tiburon
1505 Tiburon Blvd.
Tiburon, CA 94920
SPACE ABOVE THIS LINE 15 FOR RECORDER'S USE
Deed of Trust and Assignment of Rents
This Deed of Trust, made this 2nd day of June, 2009, between the Housing Authority of the County of Marin, a public
body corporate and politic, herein called TRUSTORI whose address is 4020 Civic Center Drive, San Rafael, CA 94903,
Old Republic Title Company, a California corporation, herein called TRUSTEE, and the Town of Tiburon, a public body
corporate and politic, herein called BENEFICIARY,
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE IN TRUST, WITH POWER OF
SALE, that property in Marin County, California, described as:
See "Exhibit A" attached hereto and made a part hereof.
Ct 'r
';P•37 F
PvA 1
N 2 9 2009
A
E
r- INANCE DEPARTMENT
TOWN OF TIBURON _
40~.
Together With the rents, issues and profits thereof, SUBJECT, HOWEVER, to the right, power and authority hereinafter
given to and conferred upon Beneficiary to collect and apply such rents, issues and profits.
For the Purpose of Securing:
1. Performance of each agreement of Trustor herein contained. 2. Payment of the indebtedness evidenced by one
promissory note of even date herewith, and any extension or renewal thereof, in the principal sum of $140,000.00
executed by Trustor in favor of Beneficiary or order. 3. Payment of such further sums as the then record owner of said
property hereafter may borrow from Beneficiary, when evidenced by another note (or notes) reciting it is so secured.
To Protect the Security of This Deed of Trust, Trustor Agrees:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon; to complete or
restore promptly and in good and workmanlike manner any building which may be constructed, damaged or destroyed
Deed of Trust and Assignment of Rents Page 1 of 4
thereon and to pay when due all claims for labor performed and materials furnished therefor; to comply with all laws
affecting said property or requiring any alterations or improvements to be made thereon; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon said property in violation of law; to cultivate, irrigate,
fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary.
The amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness
secured hereby and in such order as Beneficiary may determine, or at option of Beneficiary the entire amount so
collected or any part thereof may be released to Trustor. Such application or release shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers
of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorney's fees in
a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit
brought by Beneficiary to foreclose this Deed.
(4) To pay: at least ten days before delinquency all taxes and assessments affecting said property, including
assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with interest, on said
property or any part thereof, which appear to be prior or superior hereto; all costs, fees and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee, but
without obligation so to do and without notice to or demand upon Trustor and without releasing Trustor from any
obligation hereof, may: make or do the same in such manner and to such extent as either may deem necessary to
protect the security hereof, Beneficiary or Trustee being authorized to enter upon said property for such purposes;
appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of
Beneficiary or Trustee; pay, purchase, contest or compromise any encumbrance, charge or lien which in the
judgment of either appears to be prior or superior hereto; and, in exercising any such powers, pay necessary
expenses, employ counsel and pay his reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with interest from date
of expenditure at the amount allowed by law in effect at the date hereof, and to pay for any statement provided for
by law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the Beneficiary
not to exceed the maximum allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any condemnation for public use of or injury to said property or
any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release such moneys received
by him in the same manner and with the same effect as above provided for disposition of proceeds of fire or other
insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive his right
either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
(8) That at any time or from time to time, without liability therefor and without notice, upon written request of
Beneficiary and presentation of this Deed and said note for endorsement, and without affecting the personal liability
of any person for payment of the indebtedness secured hereby, Trustee may: reconvey any part of said property;
consent to the making of any map or plat thereof; join in granting any easement thereon; or join in any extension
agreement or any agreement subordinating the lien of charge thereof.
(9) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and upon
surrender of this Deed and said note to Trustee for cancellation and retention and upon payment of its fees, Trustee
shall reconvey, without warranty, the property then held hereunder. The recitals in such reconveyance of any matters
or facts shall be conclusive proof of the truthfulness thereof. The grantee in such reconveyance may be described as
"the person or persons legally entitled thereto". Five years after issuance of such full reconveyance, Trustee may
destroy said note and this Deed (unless directed in such request to retain them).
(10) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power and authority,
during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto Trustor
Deed of Trust and Assignment of Rents Page 2 of 4
the right, prior to any default by Trustor in payment of any indebtedness secured hereby or in performance of any
agreement hereunder, to collect and retain such rents, issues and profits as they become due and payable. Upon any
such default, Beneficiary may at any time without notice, either in person, by agent, or by a receiver to be appointed
by a court, and without regard to the adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said property or any part thereof, in his own name sue for or otherwise collect such rents, issues
and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured hereby, and in such order as
Beneficiary may determine. The entering upon and taking possession of said property, the collection of such rents,
issues and profits and the application thereof as aforesaid, shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(11) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of any
agreement hereunder, Beneficiary may declare all sums secured hereby immediately due and payable by delivery to
Trustee of written declaration of default and demand for sale and of written notice of default and of election to cause
to be sold said property, which notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with
Trustee this Deed, said note and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of default, and
notice of sale having been given as then required by law, Trustee, without demand on Trustor, shall sell said
property at the time and place fixed by it in said notice of sale, either as a whole or in separate parcels, and in such
order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States,
payable at time of sale. Trustee may postpone sale of all or any portion of said property by public announcement at
such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property so
sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall
be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary as hereinafter
defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust, including cost of evidence of title in
connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums expended under the terms
hereof, not then repaid, with accrued interest at the amount allowed by law in effect at the date hereof; all other
sums then secured hereby; and the remainder, if any, to the person or persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured hereby, may from time to time, by
instrument in writing, substitute a successor or successors to any Trustee named herein or acting hereunder, which
instrument, executed by the Beneficiary and duly acknowledged and recorded in the office of the recorder of the
county or counties where said property is situated, shall be conclusive proof of proper substitution of such successor
Trustee orTrustees, who shall, without conveyance from the Trustee predecessor, succeed to all its title, estate, rights,
powers and duties. Said instrument must contain the name of the original Trustor, Trustee and Beneficiary hereunder,
the book and page where this Deed is recorded and the name and address of the new Trustee.
(13) That this Deed applies to, inures to the benefit of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors and assigns. The term Beneficiary shall mean the owner and holder, including pledges, of the note secured hereby, whether or not named as Beneficiary herein. In this Deed, whenever the context
so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trust when this Deed, duly executed and acknowledged, is made a public record as
provided by law. Trustee is not obligated to notify any parry hereto of pending sale under any other Deed of Trust or of
any action or proceeding in which Trustor, Beneficiary or Trustee shall be a party unless brought by Trustee.
Deed of Trust and Assignment of Rents Page 3 of 4
The undersigned Trustor requests that a copy of any Notice of Default and of any Notice of Sale hereunder be mailed
to him at his address hereinbefore set forth.
the Housing Authority of the County of Marin,
a public body corporate and politic
by:
Daniel Nackerman, Executive Director
State of Ue-~ ¢~-r2~ cL
County of
~'~Lbi'L LE 1
ya Notary Public,
On ~ before me,
personally appeared (k who proved to me on the basis of satisfactory evidence to be the person("hose nameWis/axe-subscribed to the within
instrument and acknowledged to me that he/sloe -executed the same in his/ eir authorized capacity(-i@4, and
that by his/hefiWae.ir signature(s) on the instrument the personasy, or the entity upon behalf of which the person(a)-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.
Signature:
Name: d~0 6 { rIc( C~
(typed or printed)
C XM 11on 16a101
NON019 Ric - C 1kww
Mom Cojr
MICOM. 64" !Ol
(Seal)
Deed of Trust and Assignment of Rents Page 4 of 4
ORDER NO.: 0435009246-CB
EXHIBIT A
The land referred to is situated in the County of Marin, City of Tiburon, State of California, and
is described as follows:
PARCEL ONE:
Unit No. 3, as shown and defined on that certain Condominium Plan recorded May 1, 1987, as
Recorder's Serial No. 87-29234, Marin County Records and as defined and limited in the
Declaration of Restrictions recorded May 1, 1987, as Recorder's Serial No. 87-29235, Marin
County Records.
PARCEL TWO:
An undivided 1/34th interest as tenants in common in and to the Common Area, designated Lot
9, as shown upon that certain Map entitled, "Point Tiburon, in the Town of Tiburon, Marin
County, California, filed for record February 16, 1984, in Volume 19 of Maps, at Page 4, Marin
County Records, and as shown and defined on the Condominium Plan referred to herein and as
defined and limited by the Declaration of Restrictions referred to herein.
PARCEL THREE:
A non-exclusive easement for ingress, egress and support through the Common Area as shown
upon the filed Map referred to herein and as shown and defined on the Condominium Plan
referred to herein.
Exclusive easements for use of the areas designated as GP-14 for Parking, as shown and
defined on the Condominium Plan referred to herein.
APN: 058-440-03
41,
Page 1ofI
To:
From:
Subject:
Reviewed By:
TIBURON REDEVELOPMENT
AGENCY
1505 Tiburon Boulevard
Tiburon, CA 94920
Chair and Members of the Board
Administrative Services Department
Town Council Meeting
February 18, 2009
Agenda Item:
"4 "
Recommendation to Approve a Loan to Marin Housing Authority
for Below Market Rate Unit at Point Tiburon Marsh
BACKGROUND
The Town has contracted with the Marin County Housing Authority ("Housing Authority") to
administer the Below Market Rate ("BMR") program for ownership units. Pursuant to that
contract, the Housing Authority locates qualified buyers for units as they become available for
purchase. Each purchaser must sign two documents that ensure that the unit stays in the BMR
program: (1) A Resale and Financing Restriction and Option to Purchase ("Resale Restriction")
and (2) A Deed of Trust that allows the Housing Authority to foreclose on the unit if the buyer
breaches the first document. The has the right of first refusal; should the Town not desire to
exercise the option to purchase, the Town then may convey the option to the Housing Authority.
The majority of BMR unit re-sales occur between a willing seller and another low or moderate
income family that has been qualified by the Housing Authority, in which case no public agency
funds are required to close the transaction. But occasionally, the Housing Authority must
exercise the option because of the owner's failure to pay the mortgage, property taxes or HOA
dues, or because of a breach of the Resale Restriction. In these cases, the Housing Authority
must exercise its option to purchase the unit to maintain the unit in the BMR program. This is
presently the case with one of the Marsh Road one-bedroom units. Town staff does not
recommend that the Town exercise its first right of refusal, as we have had difficulty renting one-
bedrooms in the past. Instead, staff recommends that the Agency loan the Housing Authority the
funds necessary to exercise the option. The unit will ultimately be resold to another qualified
buyer and the funds returned to the Town.
The Housing Authority estimates that it will take between six to eight months to complete the
exercise option. Barring complications, the resale price can be set at an amount that will enable
the Town to recoup all of its cost including legal fees.
FINANCIAL IMPACT
The loan amount shall not exceed $150,000 and would be charged to the Affordable Housing
fund. The eventual resale price will include any lost interest income calculated at the current
Local Agency Investment Fund rate. Therefore there is no fiscal impact to approving this loan.
RECOMMENDATION
Staff recommends that the Town Council:
Affirm its desire to provide a loan to the Marin County Housing Authority from the
Tiburon Redevelopment Agency's affordable housing fund for the purchase of a below
market rate housing unit in an amount not to exceed $150,000 and authorize the Town
Manager to execute any documents required to provide this loan.
Prepared By: Heidi Bigall, Director of Administrative Services