HomeMy WebLinkAbout2000-05-22 City Council (17)City of Palo Alto
City Manager’s Report
TO:
FROM:
HONORABLE CITY COUNCIL
CITY MANAGER
’
DEPARTMENT: PLANNING AND
COMMUNITY ENVIRONMENT
DATE:MAY 22,2000 CMR:23I:00
SUBJECT:MODIFICATION OF SUBDIVISION AGREEMENT FOR WISTERIA
CONDOMINIUMS, 4114 GOEBEL LANE AND 579 VISTA, TRACT
NO. 9128
RECOMMENDATION
Staff recommends that the City Council approve an amendment to the Subdivision
Agreement. for Wisteria Condominiums at 4114 Goebel Lane to allow the payment of a fee
instead of providing an off-site Below Market Rate (BMR) unit.
BACKGROUND
On December 6, 1998, the City Council approved a Subdivision Agreement for a 13-unit
condominium project located 4114 Goebel Lane, the Wisteria Condominium project. The
project consists of thirteen (13) residential condominiums, including one two-family unit.
Vista Goebel LLC was required to provide 2.6 units of below market rate (BMR) housing.
Vista Goebel, LLC made a contract with the City to meet this requirement by:
1.Selling one condominium unit, #11, for the reduced price of $198,950 (subsequently
increased to $240,000 to reflect increased costs) to a qualified purchaser through the
City’s BMR program;
2.Selling a second off-site unit, which could be the house located at 3491 Park Boulevard,
for a price of $198,950 to a qualified purchaser; ~nd
Making a fee payment in-lieu of providing the 0.6 units. This payment is 1.09 percer~t
of the higher of the actual sales price, (including any developer-provided fixtures,
appliances, landscaping, etc.) or fair market value of each of the 11 market rate units to
be sold (one of them is a two-unit property). Vista Goebel, LLC posted a $90,000 bond
to secure the in-lieti payments.
CMR:231:00 Page 1 of 3
DISCUSSION
The C~ty and the Palo Alto Housing Corporation concluded that Vista Goebel, LLC could
.not, in a satisfactory way, rehabilitate and deliver the 3491 Park Boulevard unit. The.
acceptability of this off-site unit was a point of contention with the developer during the
initial review of the subdivision agreement. The current subdivision agreement reserves Unit
#5 within the project as the BMR unit at an estimated sales price of $240,000 (based on
comparability to Unit # 11) until the delivery of the 3491 Park Boulevard unit. This provision
was built into the subdivision agreement as security for the provision of an off-site unit. The
delivery of Unit #5 would fulfill the BMR obligation and would not require any additional
approval by the City Council. However, the City did not originally require two on-site BMR
units and Vista Goebel, LLC does not find this alternative acceptable. It proposes instead
to pay $336,000 into the City’s Residential Housing In-Lieu Fund.
It is staff’s opinion that this alternative is within the intent of the original Subdivision
Agreement and Program H-20 of the Comprehensive Plan. Consequently, a proposed First
Amendment to Subdivision Agreement modifying the original Subdiv.ision Agreement and
signed by the property owner is attached to this report. It restates and modifies the original
BMR requirements as follows:
One on-site unit, #11, will be sold through the City’s BMR program to a buyer
selected by the City’s housing program manager, the Palo Alto Housing Corporation,
for the price of $240,000.
$336,000 will be paid to the City in lieu of providing a second BMR unitl Vista
Goebel, LLC plans to pay a portion of this sum to the City as each escrow for the 11
market rate units closes.. However, payment in full will be due within 180 days from
the date of this agreement, even if all the sales have not yet closed escrow.
Vista Goebel, LLC will pay to the City 1.09 percent of the higher of the actual sales
price or fair market value of each market rate unit as each is transferred. The fee will
also be due on any unit retained by the developer. The City holds a bond securing
payment of these sums. The City is not proposing to increase the bond even though
the listing prices of the homes indicate that the total sum due will exceed the bond
amount.
Staff’recommends the $336,000 figure based on a survey of sale prices during the last six
months of 1999 for 3-bedroom, 2-bath townhomes. The fee, when combined .with the
$198,950 sales price, sets the value of the proposed off-site unit at approximately $535,000.
This was the midpoint in the sales surveyed.
During the course of construction, Vista Goebel’s contractors damaged or destroyed a
CMR:231:00 Page 2 of 3
number of trees in violation of the conditions of project approval. This matter was settled
last month with a Stipulated Administrative Enforcement Settlement and Agreement. Vista
Goebel, LLC has replaced some of the damaged trees, in some cases with larger trees,
performed remedial work on the surviving trees, and has agreed to pay the City the sum of
$14,000. In addition, Vista Goebel, LLC has agreed to post a cash bond in the amount of
$21,000 as a security guarantee for three trees.
ALTERNATIVES TO STAFF RECOMMENDATION
The City Council may reject the offer to pay the in-lieu fee instead of a second BMR unit and
require that the second BMR unit be met by the provision of Unit #5 at a sales price of
$240,000.
RESOURCE IMPACT
Approval of the staff recommendation would increase the balance in the Residential Housing
In-Lieu Fund by $336,000 once full payment of the fee is received by the City.
POLICYIMPLICATIONS
This recommendation is consistent with existing City policies.
ENVIRONMENTAL REVIEW
An initial study was prepared, and a
subject condominium project.
Mitigated Negative Declaration was issued for the
ATTACHMENTS
Attachment A: Amended Subdivision Agreement
PREPARED BY:John Lusardi, Assistant Planning Official
DEPARTMENT HEAD REVIEW ~~~d~
G. EI)WARD GAWF ~O
Director ofPlanning and Community Environment
CITY MANAGER APPROVAL:
Assistarit City Manager
CMR:231:00 Page’
This document is recorded
for the benefit o.f the City
of Palo Alto and is entitled
to be recorded free of charge
in accordance with Section 6103
of the Government Code
After Recordation, mail to:
OFFICE OF THE CITY ATTORNEY
250 Hamilton Avenue
P.alo Alto, CA 94301
FIRST AMENDMENT TO AGREEMENT BETWEEN SUBDIVIDER AND
.CITY OF PALO ALTO
UNDER PROVISIONS OF TITLE 21 OF THE
PALOALTOMUNICIPAL CODE
4114 Goebel Lane; 579 Vista Avenue
Palo Alto, California
Tract No. 9128
THIS FIRST AMENDMENT, made and executed this day
of , 2000, by and between the CITY OF PALO
ALTO, a municipal corporation of the State of California,
hereinafter referred to as "City", and Vista Goebel, L.L.C., a
California limited liability company, hereinafter referred to as
"Subdivider";
WITNES SETH:
WHEREAS, Subdivider is the owner of that certain tract of
land situated in the City of Palo Alto, County of Santa Clara, State
of California, generally known and described as 4114 Goebel Land and
579 Vista Avenue, Palo Alto, California (the "Property"); and
WHEREAS, on December 6, 1998, City and Subdivider entered
into an "AGREEMENT BETWEEN SUBDIVIDER AND CITY OF PALO ALTO UNDER
PROVISIONS OF TITLE 21 OF THE PALO ALTO MUNICIPAL CODE (TRACT
9128) ("the Agreement")," recorded in the Official Records of the
Santa Clara County Recorder on December 22, 1998 as Document
#14565370, and
WHEREAS, Subdivider recorded Tract No. 9128 on
December 22, 1998, Santa Clara County Assessor’s Parcel
No. 137-37-002 in Official Records of the Santa Clara County
000428 syn 0090538
Recorder as, hereinafter referred to as the "Map" and incorporated
herein by this reference;
WHEREAS, Subdivider and City wish to amend the Agreement
to permit Subdivider to substitute a cash payment for a second,-off-
site, below market rate ("BMR") unit; and
NOW, THEREFORE, for and in consideration of the promises
contained herein, the parties hereto mutually covenant and agree as
follows:
I. Section 24 of the Agreement is amended to read as
follows: J
24. Below-Market-Rate Program Units and In-Lie~1
Fee Payment. In conformance with City’s Below Market Rate
("BMR") housing program requirements of Programs H-16 and
H-20, Subdivider agrees to.provide on on-site unit to be
included in the City’s BMR program and to make a payment
of money to meet the balance of the 2.6 unit requirement.
a. One (I) three-bedroom unit to be included in the
City’s BMR program and sold at the initiai sales price
specified in this Agreement to an eligible buyer whose
qualifications have been certified by the City’s program
administrator, the Palo Alto Housing Corporation, subject
to the City’s deed restrictions applicable to "for sale"
units placed in the BMR program~ The unit shall be a
Plan "I" unit, Lot II, as specified on the approved plans
and on Exhibit B attached to this Agreement and a part of
it. This unit shall have no second dwelling unit.
The design, construction, .materials, filnishes, windows,
hardware, light fixtures, landscaping, irrigation,
appliances and like features of the BMR units shall be
comparable to all other units in the project. The owners
of the BMR units shall have access to all facilities,
amenities, parking and storage as provided to other owners
in the project.The initial sales price of the BMR units
shall be Two Hundred and Forty Thousand Dollars
($240,000.00).This price is not subject to further
adjustment.
The terms, of occupancy, future encumbrances, and
subsequent transfers, (including price and qualifications
of transferee) shall be subject to the requirements of
the BMR deed restrictions set forth in Exhibit "A"
attached hereto.
b. In lieu of providing a second BMR unit, Subdivider
shall pay to the City the sum of Three Hundred and Thirty
Six Thousand Dollars ($336,000.00) The sum of Thirty
000428 syn 0090538
Thousand Five Hundred and Forty Five .Dollars and Forty Six
Cents ($30,545.46) shall be due upon sale of each market
.rate unit of the P.roperty or within. 180 days of the date
of execution of this First Amendment. (The duplex unit
shall be counted as a single unit for these purposes.).
Payment of this amount shall be secured by a note and deed
of trust on Lots 1-12, excluding Lot ii, in the form
attached hereto as Exhibit B. Upon recordation of this
First Amendment together with the note and deed of trust,
and the issuance of a lender’s title policy in favor of
City, the cost of Which shall be paid by Developer, City
shall promptly record a release of its previously recorded
Below-Market-Rate covenant on Lot 5.
c. If the project is to be used for rental purposes a new BMR
agreement must be negotiated with the City prior to occupancy.
2. Except .as amended by this First Amendment, all provisions
of the Agreemen~ shall remain in full force and effect.
IN WITNESS’WHEREOF, the parties hereto have caused this
agreement to be executed in duplicate the day and year first above
written.
APPROVED AS’ TO FORM CITY OF PALO ALTO
Senior Asst. City Attorney City Manager
APPROVED:
Director of Public Works
Director of Planning and
Community .Environment
VIS~.L.C.. .
~e:k~~A.. . Levin
A.P.N. Nos: 137-37-0-002
O0428syn 0090538
3
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code ~ 1189)
COUNTY OF ~-~ ~--o-- O~x~/
)
)
)
On ~ \ ~ao , before me, ~ ~2~ 0~,3~ ~ , a
notary p in and for said County, personally appeared
,_-~v~.tto~A , 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.
Commission # 1187191
Notary Pub,c- Ca~I[omla
Santa Clara C~n~
~~m.~Jm 15,~
O0428syn 0090538
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code ~ 1189)
STATE OF
COUNTY OF
)
)
)
On , before me, , a
notary public in and for said County, 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!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 sfgnature(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.
00428syn 0090538
EXHIBIT "A"
SUBJECT TO:
A.Right Of First Refusal.
Grantee hereby grants and gives to the City of Palo Alto
("City") a right to purchase the real property conveyed hereby and
any improvements thereon (the "Premises") under conditions
hereinafter set forth. City may deslgnate a governmental or
nonprofit organization to exercise its right of firs~ refusal. City
or its designee may assign this right to an individual private buyer
who meets the City’s eligibility qualifications~ After the exercise
of said right by City, its designee or assignee in the manner
hereinafter prescribed, City, its designee or assignee may assign
said right to purchase to any substitute individual private buyer
who meets the City’s eligibility requirements and is approved by the
City; provided, however, that such subsequent assignment shall not
extend any time limits contained herein. Any~attempt to transfer
title or any interest therein in violation of these covenants shall
be void.
B.Procedure on Sale.
Whenever the Owner ("Owner" refers to Grantee and all
successors in interest) of said Premises no longer desires to own
said Premises, Owner shall notify City in writing to that effect.
Such notice shall be personally delivered or deposited in the United
States mail, postage prepaid, first class, certified, addressed to
City Manager, City of Palo Alto, 250 Hamilton Avenue, Palo Alto, CA,
94301, with a copy to the Palo Alto Housing Corporation, 725 Alma
Street, Palo Alto, CA 94301-2403~ City, its designee or assignee
shall then have .the rlght to exercise its right to purchase said
Premises~by delivery of written notice, by personal delivery or
certified mail, to the Owner thereof at any time within sixty (60)
days from the receipt by Cityof such written notice from Owner of
intent to sell or dispose of the Premises.
If City, its designee or assignee exercises its right to
purchase said Premises, close, of escrow of said purchase shall be
within ninety (90) days of the opening of such escrow by either
party. Said escrow shall be opened upon delivery to Owner of
written notice of the exercise of the option or as soon. thereafter
as POssible. In the event City decides to assign the right to
purchaseprovided herein, City may postpone opening of escrow until
selection of such assignee, or as soon thereafter as possible,
provided that the opening of the escrow shall not be postponed
longer than ninety (~0) days after Owner is notified of City’s
exercise of its right to purchase.
00428 syn 0090625
Closing costs and title.insurance shall be paid pursuant to ~he
custom and practice in the. City of Palo Alto at the time of the
opening of such escrow. The Seller shal! -bear the expense, of
providing a current written report of an inspection by a licensed
Structural Pest Control Operator. All work recommended in.said
report to repair damage caused by infestation or infection of wood-
destroying, pests or o.rganisms found and all work to correct
conditions that caused such infestation or infection, shall be done
at the expense of the Seller. Any work to correct conditions
usually, deemed likely to lead. to infestation or infection of wood-
destroying pests or organisms, but where no evidence of infestation
or infection is found with respect to such conditions, is not the
responsibility.of the Seller, and such work shall be done only if
requested by the Buyer and then at the expense Of the Buyer. The
Buyer shall be responsible for payment of any prepayment fe~s
imposed by any lender by reason of the sale of the Premises. The
purchase price shall be. paid in cash at the close of escrow or as
may be otherwise provided.by mutual agreement .of the Buyer and
Seller. .The purchaseprice ofthe Premises shall be fixed at the
lower amount arrived at via.the following two methods:
City’ or its designee shall have an appraisal made by an
appraiser of its choice to establish the market value. Owner
may also have an appraisal made by an appraiser of Owner’s
choice to establishthe market value. If agreement cannot be
reached, the average of the two appraisalsshall be termed the
market price.
Dollars ($)
plus the amount of any.prepayment fees paid by the selling
Owner at the time said Owner purchased the Premises (base
price), plus an amount, if any, to compensate for any increase
in the cost of living as measured by one-third.(i/3) of the
Consumer Price Index for the San Francisco-Oakland-San Jose
area published by the U.S..Department of Labor, Bureau of Labor
Statistics (hereinafter "the Index"). For that purpose, the
Index prevailing on the date of the purchase by the selling
Owner of said Premises shall be compared with the latest Index
available on the. date of receipt by City of notice of intent to
sell. The percentage increase in the Index, if any, shall be
computed and thebase price shall be increased by one-third
(1/3) of that percentage; provided, however, that the price
shall in no event be lower than the purchase price paid by the
selling .Owner when he purchased the Premises.. This adjusted
price shall be increased by the value of any~ substantial
structural or permanent fixed improvements which cannot be
removed without substantial damage, to the Premises Or
substantial or total loss of value of said improvements and by
the value of any appliances, fixtures, or equipment purchased
to replace appliances, fixtures, or equipment which were
originally acquired as part of the Premises by. Owner; provided
00428 ~n 0090625
2
that. such price adjustment for. replacement appliances,
fixtures, or equipment shall be allowed only ~when the
expenditure is necessitated by the nonoperative or other
deteriorated condition of the original appliance, fixture~ or
equipment. If at the time of replacement the originll
appliance, fixture, or equipment had in excess of twenty
percent (20%) of its original estimated useful life remaining~
Owner shall document to City’s satisfaction the condition of
the .appliance, fixture, or equipment which necessitated its
replacement. No such price adjustment Shall be made
significantly in excess of the reasonable cost to replace the
original appliance, fixture, or equipment with a new appliance,
fixture, or equipment of comparable quality as hereinafter
provided. No such adjustment shall be made. except for
improvements, appliances, fixtures, or equipment made or
installed by the selling Owner. No improvements, appliance,
fixture, or equipment shall be deemed substantial unless the
actual initial cost thereof to the Owner exceeds one percent
(1.0%) of the purchase price .paid by the Owner for the
Premises; providgd that this minimum limitation shall not apply
in either of the following situations:
(a)Where the expenditure was made pursuant to a mandatory
assessment levied by the Homeowners’ assoclation for the
development in which the Premises is located, whether
levied for improvements or maintenance to the Premises,
the common area, or related purposes.
(b)Where the expenditure was made for the replacement of
appliances, fixtures, or equipment which were originally
acquired as part of the Premises by Owner..
No adjustment shall be made for the value of any improvements,
appliances, fixtures, or equipment unless the Owner shall
presen~ to the CitY valid written documentation of the cost of
said improvements. The value of such improvemenns by which the
sale price shall be adjusted shall be determined as follows:
(a).The value of any improvement, appliance, fixture, or
equipment, the original cost of which was less than Five
Thousand Dollars ($5,000), shall be the depreciated v&lue
of the improvement, appliance, fixture or equipment
calculated in accordance with principles of straight-line
depreciation applied to the original cost of the
improvement, appliance, fixture or equipment based upon
the estimated original useful life of the improvement,
appliance, fixture or equipment.
(b)The value o.f any improvement, appliance, fixture, or
equipment, the original cost of which was Five Thousand
Dollars ($5,0.00) or more, shall be the appraised market
00428 syn 0090625
3
value of the improvement, appliance, fixture or equipment
when considered as an addition or fixture to the Premises
(i.e., the amount by which said improvement, appliance,
fixture or equipment enhances the market value of the
.Premises) at the time of sale. Said value shall be
determined in the same manner as the market value of the
Premises in method 1 above.
-(c)On January i, 1982, and every two years thereafter,
regardless of the date of execution or recordation hereof,
the amount.of Five Thousand Dollars ($5,000) referred to
in paragraphs (a) and (b) immediately above shall be
automatically adjusted for the purpose of those paragraphs
in the following manner. On each adjustment date, the
Consumer Price Index for the San Francisco-Oakland area
published by the U.S. Department of Labor, Bureau of Labor
Statistics ("Index") prevailing on January ~I, 1980, shall
be compared with the Indexprevailing on the date of
recordation~of this deed. The.percentage increase in the
Index, if any, shall be computed and the sum of Five
Thousand Dollars ($5,000) shall be .increased in the same
percentage. In no event shall the sum be reduced below
Five Thousand Dollars ($5,000).
(d)No price adjustment will be made except upon presentation
to City of written documentation of all expenditures made
by Owner for which an adjustment is requested.
Any sale price determined through the use-of this method number
2 (base price adjusted by Consumer Price Index and value
improvements, appliances, fixtures or equipment added) shall be
adjusted by. decreasing said price by an amount to compensate
for deferred maintenance costs,, which amount shall be
determined as follows: Upon receipt of notice of Owner’s
intent to sell, City or its designee shall be entitied to
inspect the Premises. City or its designee-shall .have an
opportunity.to determine whether all plumbing, electrical, and
heating systems are in working order; whether any violations of
applicable building, plumbing, electric, fire, or housing codes
exist;.whether all appliances.which were originally furnished
to Owner as part of the Premises,-or~any replacements thereof,
are in working order; whether walls, ceilings and floors, are
clear and free of holes or other defects (except for holes
typical of picture hangers); whether doors, windows, screens
and similar appurtenances are cracked,-broken or torn; and
whether carpets, drapes and similar features which were
originally furnished to Owner as part of the premises, or any
replacement thereof, are clean and fr@e of holes, tears or
other defects. In the event deficiencies are noted, the Real
Property Administrator of City shall obtain estimates to cure
the observed deficiencies. Owner shall cure the deficiencies
00428 syn 0090625
in a reasonable manner acceptable to City or designee within
sixty (60) days of being notified of the result8 of the
inspection, but .in no event later than close of escrow.. Should
Owner fail to cure such deficiencies prior to the scheduled
date of close of escrow, at .the option of City, its designee Or
assignee, escrow may beclosed, title passed and money paid to
the selling Owner subject to the condition that such funds as
are necessary to pay for curing such deficiencies (based upon
written estimates obtained’by City) shall be withheld from the
money due the selling..Owner and held by the escrow holder for
the purpose of curing such deficiencies. City, its designee or
assignee shall cause such deficiencies to be cured and upon
certification of completion of work by City, escrow holder
shall utilize such funds to pay for saidwork. Any remaining
funds shall be paid to the selling Owner. No other payment
shall be due said Owner.
In no event shall City becom~ liableto the selling Owner or to
any. potentialor actual Buyer of the Premises, in connection with
any sale or other conveyance of the Premises. City shall also not
become obligated in any manner to Owner or any potential or actual
Buyer by reason of the. assignment of the City’s option to purchase
the Premises. Nor shall the City be in any way obligated or liable
to Owner or any potential or actual Buyer for any failure of City’s
assignee to consummate a purchase of .the Premises, or to comply with
the terms of any purchase and sale agreement concerning the
Premises.
Until. such time as the City’s right to purchase are exercised,
waivedor expire, neither the Premises, nor any part or portion
thereof, nor any interest therein shall be sold, conveyed, leased,
rented, assigned, encumbered or otherwise transferred to any person
or entity except with the prior express written consent of the City
of.Palo Alto, or its designee, which consent shall be consistent
¯ with City’s goal of creating, preserving, maintaining and protect±ng
housing in Palo Alto for persons of low and moder’ate income. No
encumbering of title of the Premises in connection with securing any
financing or loan may be accomplishedwith the City’s prior express
written consent~ In the event of foreclosure, or deed in lieu
thereof, title shall be taken subject to these restrictions.
The following transfers of title or any interest therein are
not subject to the right of first refusal provisions of this deed:
transfer by gift, devise, .or inheritance to grantee’s spouse or
issue; taking of title by surviving joint tenant; transfer of title
to spouse as part of divorce or dissolution proceedings; acquisition
of title or interest therein in conjunction with marriage; provided,
however, that these covenants shall continue to run with the title
to said Premises following said transfers.
5
00428 syn 0090625 "
Co Termination of Right of First Ref~$a.l.
The provisions set forth in this deed relating to .City"s
rights to.purchase shall terminate.and become void automaticai!y
fifty-nine (59) years following the, date of recordation of-this
deed.
Upon the expiration of said fifty-nine (59) year period, the
Palo Alto Housing Corporation, a non-prOfit charitable organization
or its successor organization, shall have the right to purchase the
Premises, and if Owner no longer desires to own the Premises, Owner
shall notify the Palo Alto Housing Corporation in.accordance with
the.procedures for notifying the City in Paragraph B above. If the
Palo Alto Housing Corporation elects to exercise its right to
purchase, it shalldo so in accordance with the procedures and price
set forth for the City in Paragraph B above.
D.Default.
Owner covenants to cause to be filed for record in the Office
of the Recorder of the County of Santa Clara a request for a copy of
any notice of default and of any notice of sale under any deed of
trust or mortgage with power of sale encumbering said Premises
pursuant to Section 2924(b) of the Civil Code of the State of
California. Such request shall specify that any such notice shall
be mailed to the City.Manager, City of Palo Alto, 250 Hamilton
Avenue, Palo Alto, CA 94301. Any noticeof-sale given pursuant to
Civil Code section 2924(f) shall constitute a notice of intent to
sell hereunder and City may exercise its preemptive right prior to
any trustee’s sale, judicial foreclosure sale, or transfer by deed
in lieu of foreclosure.
in the event owner fails to file such request for notice,
city’s right to purchase shall run from the date City obtains actual
knowledge of a sale or proposed sale. In the event City elects not
to exercise its right to purchase upon default, any surplus Zo which
Owner may be entitled pursuant to Code of Civil Procedure Section
727 shall be paid as follows: That portion of surplus (after
payment of encumbrances), if any, up to but not exceeding_ the net
amount that Owner would have receivedafter payment of encumbrances
under the formula set forth above had City exercised its right to
purchase the property on the date of the foreclosure sale, shall be
paid to Owner on the date of the foreclosure sale; the balance of
surplus, if any, shall be paid to City or its successors or assigns.
E..Distribution Of Insurance and Condemnation Proceeds.
In the event that the Premises .are destroyed and insurance
proceeds are distributed to Owner instead of being used to rebuild,
or in the event of condemnation, if proceeds thereof are distributed
to Owner, or in the case of a condominium project, in the event of
00428 syn 0090625
termination of the condominium and/or liquidation of.the association
and distribution of the assets of the association to the members
thereof, including Owner, any.surplus of proceeds so distributed
remaining after payment of encumbrances Of said .Premises shall be
distributed as follows: That ~ortion of the surplus up to but not
to exceed the net amount that Owner would have received under the
formula set forth above had City exercised its right to purchase the
property on the date of the destruction, condemnation valuation
date, or liquidation, shall be distributed to Owner, and the balance
of such surplus, if any, shall be distributed to City or its
successors or assigns.
All notices required herein shall be sent to the following
addresses: ..
CITY:
DEVELOPER:
City Manager
City Of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
OWNER:
PALO"ALTO HOUSING
CORPORATION:
By acceptance of this deed, Grantee/Owner accepts-and agrees to
be bound by the c~venants contained herein, and further acknowledges
receipt of and agrees to be bound by the provisions Of these deed
restrictions.
IN WITNESS WHEREOF, the undersigned Grantee has caused this
instrument to be executed this day of , 19
Signature of Grantee
Print Name
00428 ~n 0090625
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF
COUNTY OF
)
)
)
On ,- before me, , a
notary publlc in and for said County, 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/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.
00428 syn 0090625
Us$336,000.00
PROMISSORY NOTE
Palo Alto, California
, 2000
FOR VALUE RECEIVED, the undersigned VISTA GOEBEL LLC, a
California limited liability company (’~Maker"), .promises to pay.
to THE CITY OF PALO ALTO, a municlpal, corporation of the State
of California ("City"), or order, at Department of Planning and
Community Development, 5th Floor, 250 Hamilton Avenue~ Palo
Alto, California 94301, or such other place as the holder hereof
may designate in .writing, the Principal sum of Three Hundred
Thirty Six Thousand and 00/I00 Dollars (US$336,000.00). This
Promissory Note evidences certain obligations of Maker in favor
of City arising under that certain "Agreement between Subdivider
and City of Palo Alto under Provisions of Title 21 of the Palo
Alto Municipal Code (Tract No. 9128)" dated December 6, 1998 as
amended May __, 2000, and may be referred to herein as the
"Note.’’
MATURITY. The principal~ if not sooner paid, shall be due
ind payable on [in 180 days],. (the"Maturity Date").
SECURITY. The indebtedness evidenced by this Note is
secured by that certain Deed of Trust, Assignment. of Rents and
Request for Notices of even date herewith executed by Maker (the
"Deed of Trust") encumbering real property more particularly
described therein (the "Property"). The Property .consists of
eleven condominium units commonly known as units I, 2, 3, 4, 5~
6, 7, 8~ 9, I0 and 12 of Tract 9128, County of Santa Clara,
, also known as 4101,. 4105,4109, 4110, 4113, 4117, 4118, 4121, 4122, 4125, 4126 Wisteria
Lane, Palo Alto, California (collectively, the "Units" and each
individually a "Unit").
PREPAYMENT. This Note may be prepaid at any time in whole
or in part without.premium or penalty.
MANDATORY PREPAYMENT. A mandatory prepayment of.principal
shall be due.and payable immediately, and without demand by the
holder hereof,, from time to time as any Unit at the Property is
conveyed to .a third party. The amount of the mandatory
prepayment shall equal the product of $30,545.46 multiplied by
the number of units being conveyed. Such payment will be
1000428 syn 0090621
EXHIBIT ¯ "B"
applied upon receipt by holder -(after deducting all costs
incurred by holder in connection with releasing the Unit from
the lien of the Deed of Trust, including but not limited to
attorneys’ Ifees, recording fees, trustee’s fees, and escrow and
title charges) first to outstanding sums owed to holder other
than the principal amount of this Note, and thereafter any
excess will be applied to repay the principal amount of this
Note. In no event will any Unit be released from the lien of
the Deed of Trust unless the conditions set forth in the
immediately following paragraph have been satisfied, and payment
has been made to holder as set forth in this paragraph.
PARTIAL RELEASES FROM DEED OF TRUST. Maker may, from time
to time, obtain releases of Units from the lien of the. Deed of
Trust upon the following terms and conditions:
A. At least I0 business days in advance, Maker shall have
delivered to holder written notice requesting thai the trustee
of the Deed of Trust release from the lien of the Deed of Trust
one or more or Units identified in Maker’s notice (the
"Requested Units");
B. No Event of Default shall have occurred;
C. Holder shall concurrently with the release of each
Requested Unit receive (i) a mandatory repayment equal to
$30,545.46 for each Requested Unit to be released, plus (ii)
reimbursement of all costs incurred by holder in connection with
the release of Requested Units from the lien of the Deed of
Trust, including but not limited to attorneys’ fees, trustee’s
fees, recording fees and title and escrow charges. As used
herein, the term "Mandatory Prepayment Amount" shall mean the
product of $30,545.46 multiplied by the n~mber of Requested
Units;
D. The unpaid principal balance of the Note, after
application of the .Mandatory Prepayment Amount in respect of the
Requested Units, shall not be greater than the product of
$30,545.96 multiplied by the number of Units that will continue
to be encumbered by the Deed of Trust following the release of
the Requested Units; and
E. All instruments and documents executed and delivered
in connection with the release of Requested Units shall be in
form and substance satisfactory to holderand its counsel.
Upon receipt of the .applicable Mandatory Prepayment Amount,
holder will cause the trustee to release the applicable
000428 syn 0090612
Requested Units from the lien of the Deed of Trust; provided~
however, following any such release, thelien of the Deed of
Trust shall continhe in full force and effect and unmodified as
to the remaining Units.
EVENTS OF DEFAULT; ACCELERATION. The following shall
constitute. "Events of Default" hereunder.: (i) failure of Maker
to make any payment of princiPal (including any Mandatory
Principal Payment) under this Note when due, whether at maturity
or otherwise; (ii) failure of Maker to pay any amount from time
to time owing under this Note or the Deed of.Trust (.other than
amounts subject to the preceding paragraph) within i0 days
following written demand, (iii) a cour~ enters a decree or order
for relief with respect to Maker in a case under the Bankruptcy "
Code, or Maker commences a voluntary case Under t~he Bankruptcy
Code, or consents to the entry of an order for relief in an
involuntary bankruptcy case or to the conversion of an
involuntary bankruptcy case to a voluntary case, or consents to
the appointment of or taking possession by a receiver, trustee
or Other custodian for itself or for all or a substantial part
of its property, or it makes an assignment for the benefit of
creditors, or all or any portion of the Property becomes the
possession of the estate or subject to the automatic stay in any
case .or proceeding under, the Bankruptcy Code or any applicable
bankruptcy, insolvency, or similar law now or hereafter in
effect, (iv) any lien, money judgment, writ or warrant
attachment, or similar process in excess of $i00,000 is entered
or filed against Maker or any of its assets and remains
undischarged, unvacated, unbonded or unstayed for a period which
continues either for 30 days or until the 20th day prior to the
date of any proposed sale thereunder; or (v) any event
constituting a default under any promissory note or other
obligation secured by a deed of trust on the Property, or under
any such deed of trust, whether senior to or subordinate to the
Deed of Trust.
Upon and at any time following the occurrence of any Event
of Default, then at the option of the holder hereof and without
notice, the entire principal, amount outstanding hereunder shall
at once become due and payable, and the holder hereof may
exercise any and all of its rights and remedies under the Deed
of Trust or pursuant to applicable law. The holder hereof may
so accelerate such obligations and exercise such remedies at any
time after the occurrence 6f any Event of Default, regardless, of
any prior forbearance.
LATE CHARGES; ADDITIONAL INTEREST ON DEFAULT. If any
installment under this Note or any other amount owing hereunder
000428 syn 0090612
3
or under any of the other Loan Documents is not received by the
holder .hereof as .and when the same is due, then the undersigned
shall pay to the holder hereof a late charge¯equal to five
percent (5%) of such installment, such la~e charge to be
immediately due and payable without demand by the hol.der hereof.
In addition, t~e outstanding principal balance of this Note
shall-bear interest at the rate of ten percent (10%) .per annum
from and after the date of any Event of Default occurs
(including but not limited to the failure of Maker to pay a
Mandatory Prepayment Amount when required, or the failure of
Maker to pay the prlncipal balance of the Note in full on or
before the Maturity Date).
Maker agrees that such late charge and rate of interest in
the event of default are reasonable and do not constitute a
penalty.
LAWFUL INTEREST. The parties hereto -intend to conform
strictly to the applicable usury laws. In no event, whether by
reason of demand for. payment, prepayment,, acceleration of the
maturity hereof or otherwise, shall the interest contracted for,
charged or received by the holder hereof hereunder or otherwise
exceed the maximum amount permissible under applicable law. If
from any circumstance whatsoever interest would otherwise be
payable to the holder hereof in excess of the maximum lawful
amount, the interest¯ payable to the holder hereof shall, be
reduced, automatically to the. maximum amount permitted by
applicable law. If the holder hereof shall ever. receive
anything of value deemed interest under applicable law which
would apart from this provision be in excess of the maximum
lawful amount, an amount equal to ~any amount which would have
been excessive interest shall be applied to the reduction of the
principal amount owing ~hereunder in the inverse..order of its
maturity and not to the payment of interest, or if such’ amount
which would have been excessive interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to
the undersigned. All interest paid oragreed to be paid to the
holder hereof shall, ~o the extent permitted by applicable law,
be amortized, prorated, allocated, and spread-throughout the
full stated term (including any renewal orextension) of such
indebtedness so that the amount of interest-on account ofsuch
indebtedness does not exceed the maximum permitted byapp!icable
law. The provisions of this paragraph shall control all
existing and future, agreements between the undersigned and the
holder hereof.
000428 syn 0090612
4
WAIVERS. Presentment, notice of ~dishonor, and protest are
hereby waived by all Maker. This Note shall be binding upon
Maker and its successors and assigns.
THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES. ANY RIGHT THE UNDERSIGNED MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER ORIN CONJUNCTION WITH THIS NOTE, OR ANY
COURSE.OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF EITHER PARTY.
ATTORNEYS’ FEES, COSTS OF COLLECTION. Maker~shall p~y<to
holder on demand all costs and expenses, including attorneys’
fees and expenses, incurred by holder in collecting the
indebtedness arising hereunder or secured by the Deed of Trust,
or in determining the rights and obligations of any parties
hereto or thereto, or as a consequence of any breach or default
by Maker hereunder or thereunder, or otherwise as a consequence
of any .right evidenced or secured by this Note or the Deed of
Trust. Without limitation, such costs and expenses to be
reimbursed by Maker shall include attorneys’ fees and expenses
incurred in any bankruptcy case or proceeding and in any appeal.
APPLICABLE LAW. This Note shall be governed by and
construed in accordance with the law of the state of California.
In witness whereof, the undersigned has executed this
Promissory Note as of the date first written above.
compan~ ~
< " Jeff~y~ Levin, Manager
000428 syn 0090612
This document is recorded for
the benefit of the’City’of.
¯ Palo. Alt~ and is. entitled to
be recbrded freeof charge in
Bcc~rdance wi[h’ Section6103
of the Government’Code.
After¯Recordation, mail to:
CITY OF PALO .ALTO.
Office of the City Attorney.
250 Hamilton Avenue
Palo Alto, CA 9.4031.
SPACE ABOVE THIS LINE. FOR RECORDER’S USE
DEED OF TRUST, ASSIGNMENT OF RENTS A~D
REQUEST ~OR NOTICES
THIS DEED OF TRUST, ASSIGNMENT OF R~NTS AND .REQUEST FOR
NOTICES, made on , 2000, between VISTA GOEBEL LLC,
a California ~limit¯ed liability company (.~T’rustor"), ’whose
address is c/o J. Levin Properties, 350 Second Street, Suite .7,-
Los Altos~ CA 94022, CHICAGO .TITLE .COMPANY, a Calif6rnia
corporation (~Trustee"), whose address is IIO.W. Tayio~ Street,
San Jose,California 951i2, and THE CITY OF PALO ALTO, a
municip~l corporation of¯the State of ’California
(~B?neficiary"), whose address is Attn~ Directorof.Planning ind
Community Deyelopment~ 250 Hamilton Avenue, 5th Floor, Palo
Al~o, california 94301,
WITNESSETH:
That Trustor IRREgOCABLY GRANTS," TRANSFERS AND ASSIGNS TO
TRUSTEE IN TRUST, wITH POWER OF. SALE, that real ,property and
improvementB¯ in .the City of Palo .Alto, County of santa c~ara,
state- of"California, describe~ in Exhibit "A", attached hereto
and .made i part hereof b9 reference’ (~’Se’curity" or ""Property"),’
TOGETHER WITH the rents, is.sues and. p~of~ts thereof, SUBJECT~
HOWEVER, to .the right, ’power,. and. authority, given to and
onferr4d upon. Beneficiary, by subdivision B of the fictitious
deed .Of.trust recorded in the.office of the-Recorde~ of the
County.of Santa Clara, in Book ’5336 of Official.Records, at ’Page
341, adopted and inc6rporated herein by reference and made a
part hereof as-if ful~y set forth herein,, to collect an~’ apply
such rents., issues and Profits.
FOR THE PURPOSE OF. SECURING payment of the indebtedness
evidedced by that .Promissory iNote ("Noteei, and’any extensions
or renewals thereof, in the principal amount of $336,000.00
.executed by Trustor infa.~or of .Beneficiary... .
1
000428 syn 0090623 EXHIBIT
TO PROTECT THE sEcuRITY OR THIS. DEED OF TRUST, TRUS~OR AGREES:
’i. Fictitious Deed of Trust. By the executi’on and
delivery of this Deed ofTrust and the Note secured he~eby,¯~ha~
the ..provisions of subdivisions A and- B inclusive, Of .the
fictitious deed of tr~s~ recorded, i~ the office’ of the Recorder
of the Cohnty of Sahta Clara-in Book 5336of Official Records,
atPage 341, hereby.are adopted an~ incorporated herein and made
a part. hereof as fully as though¯ set .forth herein at length;
that it. will observe and perform.said provisions;, and that the
~eferences to ~property, ¯obligations,.. and parties ~n said
provisionsshall- be construed to refer .to the .property,
obligations, and parties set. forth in this Deed of T~ust.
.- 2. Prohibited Trans~ers~ Trus~or shall not,.-voluntarily
~r involuntarily ~r by operation of law, ¯sell, transfer, lease,
pledge, encumber, create a .security interest in, or otherwise
hypothecate or alienate all or any par’~ of the Security, w~th0ut
Ben@ficiary[.s .prior ¯written consent. T~e consent ¯by Beneficiary
to any ’sale, trans.fer, lease,¯ pledge, encumbrance, creation-of¯a
security .interest in,. or Other hypothecation.’¯of the Sedurity
Shall. not be deemed to constitute a novation or a consent to any
further sale, transfer, lease, pl~dge, ehcumbrance, creation of.
a.security:interest .in or Other .hypothecation. Beneficfary may,
at ¯its option,declare ¯ the .indebtedness- secured- .hereby
immed~ately.due and.payable, without notice to Tru~tor or any
other person Or entity, upon any s.uch sale, itransfer, lease,
¯ pledge, encumbrance,, creation of a-security interest¯ in, or
other hypothecation or alienation in violation hereof. Without
the written ~onsent of Beneficiary, no sale, transfer,, lease,
P~edge, encumbrance, creation of a seCUrity interest in,.-or
other hypothecation, of the ¯Segurity shall r~lieve or release
Trustor.from primaryliability, under this Deed Of-Trust or the
.Note, as the case¯may..be. As used in this Section 2, the term..
~transfer" includes,without limitation, the f~llowing
transactions:.¯.
a. .Any- total or p~.tial sale¯, assignment, or.
conveyance, or ¯creation of any t!ust or" power, or any transfer
in any. 0ther modeor form with resp.ect to the 3ecuri~y ¯or any
part¯ herebf, or any.interest herein, or any contract or ¯agreement
.to¯ do the Same; .
¯ . b. The cumulative transfer of more than ten percent
(10%) of the capital., stock, partDership. profit ¯and
interest, Or other ferm of interest in Trustor; and
c. A~y merge£, c~nsolidation¯,’ sale. or lease of ~ii
o.r substantially .all of the a~sets of Trustor~¯ provided that
this pro$ision .shall not be ~interpreted to prohibit the¯ leasing
000428 Sy~ 0090623
of. the individual apartment .units in the iiprovements located.at
¯ the Rroperty to tenants in the ordinary course of~b~sin~ss’.
¯ Notwithstanding..anything ’¯to i~he ~ont.rary contiined her~in,
Trustor ackn6wledges that this-.Deed .of Trust is junior-an’d. ¯
subordinateto the. Senior Deed’of T~ust’ (as deff~ed in section .4
below) and .further agrees thit the encumbrance of the property
by-the Senior.Deed of Trust shall not constitute a violiti6nof
this Section’2.
¯ ¯.3. Due’oh Sale. In the 4vent of default, b9 T’rlstor under
%beNote or this Deed of Trust~ or if ~he Property’or any part
thereof¯ or any interest therein is sold,¯.agreed to be .sold,
conveyed~ a~ienated. or /refinanced. by Trustor, or.¯ by the
operation of law or .otherwise, wi.t¯h0ut. the written c~nsent of
Beneficiary, all¯ obligations .. secured .by this., inshrumen~,
irrespective of’ the ..maturity. dates expressed therein, ab ’.the
.option :of. Beneficiary’hereof and¯ without.d~emand ~r no%ice.skall
immediately become due and¯¯payable. Notwiths~’~nding ~nything to
the cgntra~y contained in Section 2 or. Section 3.¯ of this Deedof
Trust, ’.Trustor shall have the right f~om time "t6. tim~ .to
transfer one or. more of the .individual condolinium units, hhat
collectively’~onstitute theProperty (the."Units") and to ~btainreleases .of ¯units .f~o~ the lien o.f this Deed .of Trust upon.
¯S~tisfaction .of the conditions thereto set forth in .the Note"
(inbl~ding. but not limited to payment o.f the Mandatqry
’Prepayment Amount¯ described in the Note), .which cQndi¯t¯ions are
incorporated in this Deed’iof. Trust bythis reference.
4. . R~quest .forNotices of Defahlt. and Sale. B~neficiary
req~e’sts that a cop~ of’any Notice 6f. Default a~d"Qf any NOtice
of Sale under.the deed of trust recorded in Book.
Page in the OffiGial Records of" Santa Clara "County,.
Califo~-~nia, executed .by.T~ustor as t~usto~’in which’ is
named as b~neficiary.and as. trustee¯ (the.’,Senior Deed
of Tru~t").bemailed to Beneficiary at its"address her%inabove
s~t forth~ and ’tha~ an additiona~¯ copy of a~y such.notice be
mailed to .the City of Palo ¯Alto., ¯Office. of .the City Clerk, 250
Hamil~en.Av~nue, Seventh.’Floor, Palo. Alto, California 94301.
VISTA GOEBEL LLC,
a Calif,
compan
liability
B
Manager
~.. Levin,
000428
STATE OF CALIfoRNIA ¯)
)
)
.~ .". On .th%~ day .O ,¯~ in hhe year 2000
before .. me, .’ .~ij~.!. ~~_~j_ . , ".personally
appeared JEFFREY k, LEVI~; p~&.onall~, knowp to me. or pro$ed to
me on the.-~asis of satisfac~ory .ev~de~ce to:be the.. person(d)
whose name Q~) is/a~e’ subscribed to the within instrumeat ..and
acknQwledge~ to me that he2s.~/t/<ey ’executed the same.¯ in
his/h~r/th~i~ authorized capacity(Us)., ~nd that by
his/h~/.~iir signature(~ on th~ .instrument the person(<), .or
.- the entity upon [behalf’of] which the.person{q! ac~ed, ~xecuted
the instrument. .. .~
Witness my hand’ and official seal.
Notary Pflblic
EXHIBIT "A"
All that..ce’rtain RealProperty in thi ’.City of Palo Alt0, .County.
df Santa Clara, Sbate of California, described as follows:
-PARCEL oNE
Condominium Unit NO. 1-12 on Lot .I of ~ract No. 9128 filed
DeQember 22,I~98 in book 711. of¯Maps, Pages 27 and 28, as .such
unit.¯is shown on the Condominium’Plan¯ ("P~an"). Which .is attached
tO the Wisteria Declaration’¯ 6f .Restrictions. (CC%Rs)
("Declaration")- recorded DeCember 23, 1999, Document NO.
15100615, Santa C1ara C0un~y Records, .and.as described in said
.-Declaration. . .-.
P~RCEL TWO
An undivided I/i2 interest is Tenant in common in and to the
Common Area as shown onthe .Plan¯ and defined in~he Declaration,
exceptingand reserving therefrom the fo~lowing:
¢6)
(B)
(c)
(D)
All Units as delineated onEx~ibit "A" of Declaration.
Exclusive Use Common Areas. fo< possession, .use and
enjoyment of all those areas desi’gnated on the Plan as Yard
Areas.’.--
Non-Exclusive Easements for use, enjg.yment{ ingress.,
egress, and Supportin and to the .Common Area as defined in
the Declaration..
All Easements as defined in the’Declirat.ion..
PA.RCEL THREE
A Non-Exclusive.Easement for use, .enjoyment, ingress, egress and
sUpport in and to the Common. Area excipt the "Exclusive Use
Common .Areas, as def[ned i.n the Declaration for the ’benefit of
ParCel one hereinabove.
PARCEL FOUR
An easement for Exclusive Use Common Area Yard, designated Y- ~s
Shown. on the Plan, appurtenant to Parcel One hereinabove for the
.possession, use and enjoyment thereof. ¯ -
PARCEL FIVE.
Lot 1 of ~ract..9128 filed December 22, 1998 in Book 711 of Maps,
Pages 27 and28.
000515 s},n 0090630