HomeMy WebLinkAboutMoog, Jill; 2004-11-19;FlECORDlf✓G RFOI.IEST Y
UNITED rnLE COtv'1PANY
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Car ls bad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad California 92008
30551
D ,._; # 2004-1111 84 7
111111111 111 1111I 11111 lllll 111111111111111 1111111111 11111 111111111111I
NOV 23, 2004 4:59 PM
1111111 11111 111111111111111 1111111111 11111 11111 1111111111 11111 11111 11111 11111111
2004-1111847
(Space above for Recorder's Use)
NOTE TO BORROWER:
TIDS DEED OF TRUST CONTAINS
PROVISIONS PROIDBITING ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
TIDS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
this 1tttl, day of ~O JQ ~ W , 200J:}_, among Jill Moog ("Bo1rnwe:r") as trusto:r, and
United Title Company ("Trustee"), and the City of Carlsbad, a
municipal corporation (the "City"), as beneficiary.
The BmTowe:r, in consideration of the promises herein :recited and the trust herein
created, inevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of
sale, the prope1ty located in the City of Carlsbad, State of California, described in the attached
Exhibit A (the "Prope1ty").
TOGETHER with all the improvements now or hereafter erected on the prope1ty, and all
easements, rights, appmtenances, and all fixtures now or hereafter attached to the prope1ty, all of
which, including :replacements and additions thereto, shall be deemed to be and remain a pait of
the prope1ty covered by this Deed of Trust; and
TOGETHER with all articles of personal prope1ty or fixtures now or hereafter attached to
or used in and about the building or buildings now erected or hereafter to be erected on the
Prope1ty which are necessai·y to the complete and comfo1table use and occupancy of such
building or buildings for the purposes for which they were or ai·e to be erected, including all
other goods and chattels and personal prope1ty as are ever used or furnished in operating a
building, or the activities conducted therein, similar to the one herein described and :referred to,
and all :renewals or :replacements thereof or aiticles in substitution therefore, whether or not the
same are, or shall be attached to said building or buildings in any manner; and all of the
foregoing, together with the Prope1ty, is herein :refened to as the "Security";
1 12/16/2003
30552
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by a promissory note in
the amount of one hundred twenty thousand Dollars ($ ___ 12_0_,~0_0_0 ____ __,
executed by the B01Tower to the City as of the date of this Deed of Trust (the "Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced
in accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the BoITower herein contained; and
TO SECURE to the City the performance of the covenants and agreements of BoITower
contained in that ce1tain Resale Restriction Agreement and Option to Purchase executed by and
between the Bmrnwer and the City of even date herewith (the "Resale Agreement") and to secure
the payment of Excess Sales Proceeds (as defined in the Resale Agreement) that may become
due by B01Tower to City;
TO SECURE the performance of any obligations of B01Tower in any other agreements
with respect to the financing of the Prope1iy or the Security the failure of which would adversely
affect Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. B01Tower's Estate. That the BoITower is lawfully seized of the estate hereby
conveyed and has the right to grant and convey the Security, that other than this Deed of Trust,
the Security is encumbered only by: (a) that deed of trust execj.lted by the BoITower in
connection with a loan made to the Borrower by VJ O.,,.. I Pl 5 A. \I I n @S or its successors
and assigns (the "First Lender"), dated U D\J 1'8 , 200~, executed oy the BoITower in favor
of First Lender, and recorded in the County of San Diego on ______ , 200 __) and
assigned Recorder's Serial No. ____ (the "First Lender Deed of Trust"), securing a
promissory note executed by the B01Tower in favor of the First Lender ("First Lender Note"), to
assist in the purchase of the Prope1ty; and (b) the Resale Agreement. The B01Tower agrees to
wan-ant and defend generally the title to the Security against all claims and demands, subject to
any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any
title insurance policy insuring the City's interest in the Security. (As used in this Deed of Trust,
the te1m "First Lender" shall include all successors and assigns of the First Lender.)
2. Repayment of Loan. The B01Tower will promptly repay, when due, the principal,
interest and other sums required by the Note and Resale Agreement, including all principal and
interest on the City/Seller Loan (as defined in the Note) and the Excess Sales Proceeds due under
the Resale Agreement. The Note contains the following provisions concerning repayment of the
loan under ce1tain conditions:
No Assumption of Note. The Bonower acknowledges that this Note is
given in connection with the purchase of prope1ty (the "Residence") as
pait of a program of the City to assist in the purchase of homes by lower
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I
income persons. Consequently, this Note is not assumable by transferees
of the Residence, but is due in full upon Transfer.
80553
3. First Lender Loan. The B01Tower will observe and perfo1m all of the covenants
and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender
loan documents.
4. Resale Agreement. The B01Tower will observe and perform all of the covenants
and agreements of the Resale Agreement.
5. Charges; Liens . The Bmrnwer will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority over this Deed of
Trust, by the B01Tower making any payment, when due, directly to the payee thereof The
BoITower will promptly furnish to the City all notices of amounts due under this paragraph, and
in the event the B01Tower makes payment directly, the B01Tower will promptly discharge any
lien which has priority over this Deed of Trust; provided, that the B01rnwer will not be required
to discharge the lien of the First Lender Deed of Trust or any other lien described in this
paragraph so long as the B01Tower will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or
defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement
of the lien or forfeiture of the Security or any pait thereof
6. Insurance. The BoITower will keep the Security insured with a standard fire and
extended coverage insurance policy in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessai·y to prevent the BoITower from becoming
a co-insurer under the te1ms of the policy.
The insurance ca11·ier providing this insurance shall be licensed to do business in the State
of California and be chosen by the B01Tower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal
Home Loan Mmtgage Corporation, Fannie Mae, Freddie Mac, the United States Depaitment of
Housing and Urban Development, the United States Depaitment of Veterans Affairs, or
successors thereto .
All insurance policies and renewals thereof will be in a form acceptable to the City and
will include a standard mmtgagee clause with standard lender's endorsement in favor of the
holder of the First Lender Note and the City as their interests may appear and in a form
acceptable to the City. The City shall have the right to hold, or cause its designated agent to
hold, the policies and renewals thereof, and the Bmrnwer shall promptly furnish to the City, or
its designated agent, the original insurance policies or ce1tificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss, the B01Tower will give prompt
notice to the insurance catTier and the City or its designated agent. The City, or its designated
agent, may make proof of loss if not made promptly by the BoITower. The City shall receive
thiity (30) days advance notice of cancellation of any insurance policies required under this
section.
3 12/16/2003
Unless the City and the B01rnwer othe1wise agree in writing, insurance proceeds, subject
to the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of
Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to
the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with
the excess, if any, paid to the B01rnwer. If the Security is abandoned by the B01Tower, or if the
B01rnwer fails to respond to the City, or its designated agent, within thiliy (30) days from the
date notice is mailed by either of them to the B01rnwer that the insurance catTier offers to settle a
claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of
Trust.
If the Security is acquired by the City, all right, title and interest of the B01rnwer in and to
any insurance policy and in and to the proceeds thereof resulting from damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed
of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
7. Preservation and Maintenance of Security. The BotTower will keep the Security
in good repair and will not commit waste or permit impairment or deterioration of the Security.
If there arises a condition in contravention of this section, and if the B01rnwer has not cured such
condition within thiliy (30) days after receiving a City notice of such a condition, then in
addition to any other rights available to the City, the City shall have the right (but not the
obligation) to perf01m all acts necessary to cure such condition, and to establish or enforce a lien
or other encumbrance against the Security to recover its cost of curing.
8. Protection of the City's Security. If the B01Tower fails to perf01m the covenants
and agreements contained in this Deed of Trust, the Resale Agreement, the First Lender Note,
the First Lender Deed of Trust, or if any action or proceeding is commenced which materially
affects the City's interest in the Security, including, but not limited to, default under the First
Lender Deed of Trust, the First Lender Note or any other deed of trust encumbering the Prope1ty,
eminent domain, insolvency, code enforcement, or aiTangements or proceedings involving a
bankrupt or decedent, then the City, at the City's option, upon notice to the B01rnwer, may make
such appearances, disburse such sums and take such action as it determines necessary to protect
the City's interest, including but not limited to, disbursement of reasonable attorney's fees and
entry upon the Security to make repairs.
Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will
become an indebtedness of the BotTower secured by this Deed of Trust. Unless the B01Tower
and City agree in writing to other te1ms of payment, such amount will be payable upon notice
from the City to the B01Tower requesting payment thereof, and will bear interest from the date of
disbursement at the lesser of ten percent (10%) or the highest rate pe1missible under applicable
law. Nothing contained in this paragraph will require the City to incur any expense or take any
action hereunder.
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9. Inspection. The City may make or cause to be made reasonable entries upon and
inspections of the Security; provided that the City will give the Bonower reasonable notice of
inspection.
10. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising
any right or remedy will not be a waiver of the exercise of any such right or remedy, nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed. The procurement
of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of
the City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
11. Hazardous Substances. B01rnwer shall not cause or pennit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Prope1ty. B01rnwer shall
not do , nor allow anyone else to do, anything affecting the Prope1ty that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage
on the Prope1ty of small quantities of Hazardous Substances that are generally recognized to be
appropriate to n01mal residential uses and to maintenance of the Prope1ty.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or f01maldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
Bonower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private pmty involving the
Prope1ty and any Hazm·dous Substance or Environmental Law of which Bonower has actual
knowledge. If BotTower learns, or is notified by any governmental or regulatory authority, that
any removal or other remediation of any Hazardous Substance affecting the Prope1ty is
necessm·y, B01Tower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
12. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concmTently, independently or successively.
13. Successors and Assigns Bound. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the
City and the B01Tower subject to the provisions of this Deed of Trust.
14. Joint and Several Liability. All covenants and agreements of the B01Tower shall
be joint and several.
5 12/16/2003
I
15. Notice. Except for any notice required under applicable law to be given in
another manner, all notices required in this Deed of Trust shall be sent by ce1tified mail, return
receipt requested or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Owner:
Jill Moog
2362 Hosp Way# 234
Carls bad, CA 92008
To the City:
City of Carlsbad
Housing and Redevelopment Depattment
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Redevelopment Director
The patties may subsequently change addresses by providing written notice of the change
in address to the other patties in accordance with this section.
15 Controlling Law. This Deed of Trust shall be construed in accordance with and
be governed by the laws of the State of California.
16 Invalid Provisions. If any one or more of the provisions contained in this Deed of
Trust, Resale Agreement or the Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from
the remaining provisions, and this Deed of Trust, the Resale Agreement and the Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in this
Deed of Trust, Resale Agreement or the Note.
17 Captions. The captions and headings in this Deed of Trust are for convenience
only and are not to be used to interpret or define the provisions hereof
18 Nonliability for Negligence, Loss, or Damage. Bonower acknowledges,
understands and agrees that the relationship between Bonower and the City is solely that of an
B01Tower and the administrators of City inclusionat·y housing program, and that the City does
not unde1take or assume any responsibility for or duty to Bmrnwer to select, review, inspect,
supervise, pass judgment on, or inform Bmrnwer of the quality, adequacy or suitability of the
Security or any other matter. The City owes no duty of care to protect Bmrnwer against
negligent, faulty, inadequate or defective building or construction or any condition of the
Security and Bonower agrees that neither B01Tower, or Bonower's heirs, successors or assigns
shall ever claim, have or asse1t any right or action against the City for any loss, damage or other
6 12/16/2003
matter arising out of or resulting from any condition of the Security and will hold City harmless
from any liability, loss or damage for these things .
7 12/16/2003
19. Indemnity. B01Tower agrees to defend, indemnify, and hold the City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys
fees that the City may incur as a direct or indirect consequence of:
a. BoITower's failure to perfo1m any obligations as and when required by the
Note, Resale Restriction Agreement, and this Deed of Trust; or
b. the failure at any time of any of BoITower's representations or wairnnties
to be true and coITect.
20. Default; Remedies. Upon the B01Tower's breach of any covenant or agreement of
the BoITower in the Note, Resale Agreement or this Deed of Trust, including, but not limited to,
the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to
acceleration, will send, in the manner set fo1th in Section 14 of this Deed of Trust, notice to the
BoITower specifying: (1) the breach; (2) if the breach is curable, the action required to cure such
breach; (3) a date, not less than thiity (30) days from the date the notice is effective as set fo1th in
Section 14 of this Deed of Trust, by which such breach, if curable, is to be cured; and ( 4) if the
breach is curable, that failure to cure such breach on or before the date specified in the notice
may result in acceleration of the sums secured by this Deed of Trust and sale of the Security.
Notice shall be effective as of the date shown on the delivery receipt as the date of delivery, the
date delivery was refused or the date the notice was returned as undeliverable. The notice will
also inform the BoITower of the B01rnwer's right to reinstate after acceleration and the right to
bring a comt action to asse1t the nonexistence of default or any other defense of the Bo1Tower to
acceleration and sale. If the breach is not curable or is not cured on or before the date specified
in the notice, the City, at the City's option, may: (a) declai·e all of the sums secured by this Deed
of Trust to be immediately due and payable without fu1ther demand and may invoke the power
of sale and any other remedies permitted by California law; (b) either in person or by agent, with
or without bringing any action or proceeding, or by a receiver appointed by a comt, and without
regai·d to the adequacy of its security, enter upon the Security and take possession thereof ( or any
pmt thereof) and of any of the Security, in its own name or in the name of the Trustee, and do
any acts which it deems necessm·y or desirable to preserve the value or mm·ketability of the
Security, or pmt thereof or interest therein, increase the income therefrom or protect the security
thereof. The entering upon and taking possession of the Security shall not cure or waive any
breach hereunder or invalidate any act done in response to such breach and, notwithstanding the
continuance in possession of the Security, the City shall be entitled to exercise every right
provided for in this Deed of Trust, or by law upon occuITence of any uncured breach, including
the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as
a m01tgage, appoint a receiver, or specifically enforce any of the covenants hereof; ( d) deliver to
the Trustee a written declm·ation of default and demand for sale, pursuant to the provisions for
notice of sale found at California Civil Code Sections 2924, et seq .. as amended from time to
time; or ( e) exercise all other rights and remedies provided herein, in the instruments by which
the B01Tower acquii·es title to any Security, or in any other document or agreement now or
hereafter evidencing, creating or securing all or any p01tion of the obligations secured hereby, or
provided by law.
8 12/16/2003
The City shall be entitled to collect all reasonable costs and expenses incmTed in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees .
21 Acceleration. Upon the occmTence of a default under the Note, the Resale
Agreement, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City
shall have the right to declare the full amount of the principal along with any interest under the
Note immediately due and payable. Any failure by the City to pursue its legal and equitable
remedies upon default shall not constitute a waiver of the City's right to declare a default and
exercise all of its rights under the Note, the Resale Agreement, and this Deed of Trust. Nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed.
22. B01Tower's Right to Reinstate. Notwithstanding the City's acceleration of the
sums secured by this Deed of Trust, the BoITower will have the right to have any proceedings
begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days
before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: ( a) the Borrower pays City all
sums, if any, which would be then due under this Deed of Trust and no acceleration under the
Note has occmTed; (b) the B01Tower cures all breaches of any other covenants or agreements of
the B01rnwer contained in the Note, Resale Agreement or this Deed of Trust; (c) the B01Tower
pays all reasonable expenses incmTed by City and the Trustee in enforcing the covenants and
agreements of the BoITower contained in the Note, Resale Agreement or this Deed of Trust, and
in enforcing the City's and the Trustee's remedies, including, but not limited to, reasonable
attorney's fees; and ( d) the B01Tower takes such action as City may reasonably require to assure
that the lien of this Deed of Trust, City's interest in the Security and the B01Tower's obligation to
pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and
cure by the Bo1Tower, this Deed of Trust and the obligations secured hereby will remain in full
force and effect as if no acceleration had occmTed.
23 . Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City
will request the Trustee to reconvey the Security and will smTender this Deed of Trust and the
Note to the Trustee. The Trustee will reconvey the Security without wairnnty and without
charge to the person or persons legally entitled thereto. Such person or persons will pay all costs
of recordation, if any.
24. Substitute Trustee. The City, at the City's option, may from time to time remove
the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties confe1Ted upon the Trustee herein and by
applicable law .
25 . Subordination to First Lender Mmtgage. Notwithstanding any other provision
hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender
Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's successor
or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default
under the First Lender Deed of Trust by the B01Tower. Such remedies under the First Lender
Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of
9 12/16/2003
( 30560
foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure,
or upon assignment of the First Lender Deed of Trust to the Secretary of the United States
Depaitment of Housing and Urban Development (the "Secretai-y"), this Deed of Trust shall be
forever tenninated and shall have no fmther effect as to the Prope1ty or any transferee thereafter;
provided, however, if the holder of such First Lender Deed of Trust acquired title to the Prope1ty
pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed of Trust is
assigned to the Secretai·y, this Deed of Trust shall automatically terminate upon such acquisition
of title or assignment to the Secretai-y provided that (i) the City has been given written notice of
default under such First Lender Deed of Trust and ( ii) the City shall not have cured or
commenced to cure the default within such thirty (30)-day period and given its firm commitment
to complete the cure in the form and substance acceptable to the First Lender. B01Tower agrees
to record any necessai·y documents to effect such termination, if applicable.
26. Attorney's Fees. If any action or proceeding is brought to enforce this Deed of
Trust or any provision of this Deed of Trust or the Note, the prevailing party shall be entitled to
its attorney's fees and the cost of such action or proceeding.
IN WITNESS WHEREOF, the B01Tower has executed this Deed Of Trust as of the date
first written above.
Bo~wer
(Print Name) _J
B01Tower
(Print Name)
10 12/16/2003
(
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On ~DVCM bev Ill , 200!:t_, before me,J(I Qv-...,, l. J.<+vl l :U-J , personally
appeared .. j j I I ::f. vYl D D ~ , 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.
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On ________ 200 , before me, ___________ , 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.
Page 1
EXHIBIT "A"
PARCEL A:
AN UNDIVIDED 11108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81-41, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS PER MAP
THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM THE FOLLOWING:
(A) ALL UNITS AS SHOWN UPON THE GROVE PHASE I CONDOMINIUM PLAN
(HEREINAFTER "CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE
NO. 83-337701 AND RE-RECORDED DECEMBER 7, 1983 AS FILE NO. 83-444150
BOTH OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF THE COUNTY OF
SAN DIEGO.
(B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS
BALCONY, PATIO, STORAGE, COVERED PARKING SPACE AND PARKING SPACE
EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE
REFERRED TO.
PARCEL B:
UNIT LU 234 AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO ABOVE.
PARCEL C:
EXCLUSIVE RIGHT TO USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF
PARCEL A DESCRIBED ABOVE DESIGNATED AS B 234, CPS-234, P_, S-234, AND PS-
234, AS APPURTENANT TO PARCELS A AND B ABOVE DESCRIBED.
PARCEL D:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT
OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER
MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH
EASEMENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS
EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY,
UPON RECORDATION OF A DECLARATION OF ANNEXATION DECLARING SUCH LOTS,
RESPECTIVELY, TO BE SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES
THE OWNERS OF SAID LOTS, RESPECTIVELY, TO BE MEMBERS OF THE ASSOCIATION
(AS DEFINED BELOW) ALL AS MORE FULLY SET FORTH IN THE DECLARATION TO WHICH
REFERENCE IS HEREAFTER MADE. THE COMMON AREA REFERRED TO HEREIN AS TO
EACH OF SAID LOTS SHALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN
OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND PORTION
THEREOF WHICH MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA.
PARCEL E:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG, ACROSS
AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS:
A STRIP OF LAND 7.50 FEET, LYING WITHIN SAID LOT 2, THE WESTERLY, NORTHERLY
AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE
BOUNDARY LINE OF SAID LOT NORTH 30° 32' 30" EAST, 325.37 FEET; THENCE SOUTH
64° 47' 19" EAST, 56.45 FEET; THENCE SOUTH 25° 40' 47" EAST 219.40 FEET; THENCE
SOUTH 67° 11' 43" EAST, 16.00 FEET; THENCE NORTH 57° 33' 00" EAST, 85.00 FEET.
ALSO THE SOUTHEASTERLY 75.00 FEET OF LOT 3. 80564
SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE OWNERS OF
LOT 1 OF CARLSBAD TRACT 81 -41, AS PER MAP THEREOF NO. 10725, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA.
THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS SAID EASEMENT SHALL BE
APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH
THE COVENANTS, CONDITIONS AND RESTRICTIONS.
NOTE: SAID COVENANTS, CONDITIONS AND RESTRICTIONS WERE RECORDED
SEPTEMBER 21, 1983 AS FILE NO. 83-337702 OF OFFICIAL RECORDS.
NOTICE TO BORROWER:
THIS NOTE IS NOT ASSUMABLE
$ 120,000
PROMISSORY NOTE
Secured by Deed of Trust
Carls bad, California
____ ,200_
FOR VALUE RECEIVED, the undersigned Jill Moog (the "B01Tower") promises to pay
to the City of Carlsbad, a municipal corporation (the "City"), or order, at the Housing and
Redevelopment Depa1.tment, 2965 Roosevelt Street, Suite B, Carlsbad, California 92008-2389,
or such other place as the City may designate in writing, the pi·incipal sum of one hundred
twenty thousand Dolla1.·s ($ 120,000_), plus Contingent Interest calculated pursuant to
Section 3 below, plus any amounts due the City as Excess Sales Proceeds pursuant to the Resale
Restriction Agreement and Option to Purchase (the "Resale Agreement") by and between
B01rnwer and City of even date herewith.
1. Purpose of Loan. B01Tower is purchasing the Residence located at 2362 Hosp
Way #234 in the City of Carlsbad. This Note evidences a loan made by
Cmtis L. Fa1.·ber (the "Seller") to the B01Tower,
utilizing subsidy funds provided by the City and the Seller, and assigned by the Seller to the City
(the "City/Seller Loan"). The City/Seller Loan is in the amount determined by the City to be
necessary for the B01rnwer to afford to purchase the Residence making a reasonable
downpayment and using conventional first m01tgage financing for the balance of the purchase
price not financed by the City/Seller Loan. The Seller made the City/Seller Loan to the
Bonower and assigned the City/Seller Loan to the City in fulfillment of ce1tain inclusionary
housing obligations pursuant to an Affordable Housing Agreement between Cmtis L. Fa1.·ber
(Seller's predecessor in interest) and the City dated September 1 , 2004. Because the purchase
price was set at an affordable price, the Bonower is required and has agreed to execute a Resale
Agreement which during the first fifteen (15) years of B01Tower's Ownership of the Residence,
restricts the price of the Prope1ty upon resale and which requires the Bonow er to pay any Excess
Sales Proceeds (as defined below) at resale to the City. This Note evidences both (a) the
obligation of Bonower to repay the City/Seller Loan, and (b) the obligation of Bonower to pay
any Excess Sales Proceeds to the City pursuant to the Resale Agreement.
2. Definitions. The terms set fo1th in this section shall have the following meanings
in this Note.
a. "Appreciation Amount" shall mean the amount calculated by subtracting
the total original purchase price of the Residence paid by the Bonower, which was two hundred
fifty-five thousand Dollars ($255,000), from one of the following amounts, as applicable: (i) in
1 12/16/2003
the event of a sale of the Residence, the amount received by the B01Tower as the sale price of the
Residence, as ce1tified by the Bmrnwer pursuant to Section 15d or Section 17 of the Resale
Agreement below; or (ii) in the event of a prepayment of this Note, a Transfer other than sale of
the Residence, or in the event of a default, the Fair Market Value of the Residence; or (iii) in the
event a creditor acquires title to the Residence through a deed in lieu of foreclosure, a trustee's
deed upon sale, or otherwise, the amount paid for the Residence at a creditor's sale of the
Residence; or (iv) in the event of payment at the expiration of the thilty (30) year tern the Fair
Market Value of the Residence.
b. "Contingent Interest" shall mean the percentage of the Appreciation
Amount set out in Section 4.
c. "Excess Sales Proceeds" shall have the meaning set f01th in Section 16 of
the Resale Agreement.
d. "Fair Market Value" shall be determined by a real estate appraisal made
by an independent residential appraiser designated by the City. If possible, the appraisal shall be
based upon the sales prices of comparable prope1ties sold in the market area during the preceding
three (3)-month period. The cost of the appraisal shall be paid by the Bmrnwer. Nothing in this
subparagraph shall preclude the B01rnwer and the City from establishing the Fair Market Value
of the Residence by mutual agreement in lieu of an appraisal.
e. "First M01tgage" shall mean the promissory note and deed of trust
evidencing and securing the first m01tgage loan for the Residence.
f. "Maximum Restricted Resale Price" shall have the same meaning as set
fo1th in Section 14 of the Resale Agreement.
g. "Resale Agreement" shall mean the Resale Restriction Agreement and
Option to Purchase executed by the B01rnwer and the City in connection with the City/Seller
Loan.
h. "Residence" shall mean the housing unit and land encumbered by the deed
of trust executed in connection with this Note.
i. "Transfer" shall mean any sale, assignment or transfer, voluntaiy or
involuntaiy, of any interest in the Residence, including, but not limited to, a fee simple interest, a
joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an interest
evidenced by a land contract by which possession of the Residence is transfened and the
Bonower retains title. Any Transfer without satisfaction of the provisions of this Note is
prohibited. A transfer: (i) to an existing spouse who is also an obligor under the Note; (ii) by a
B01rnwer to a spouse where the spouse becomes the co-owner of the Residence; ( iii) between
spouses as pait of a maniage dissolution proceeding; (iv) to an existing spouse or child of the
B01rnwer by devise or inheritance following the death of the Bonower; (v) by the B01Tower into
an inter vivas trust in which the Bonower is the beneficiai·y; (vi) by deed of trust or imposition
of a lien subordinate to the Deed of Trust; or (vii) by refinance of the First Mo1tgage meeting the
requirements of Section 11, shall not be considered a Transfer for the purposes of this Note;
2 12/16/2003
(
provided, however, that the B01Tower shall continue to occupy the Residence as his or her
principal place of residence ( except where the transfer occurs pursuant to subsection (iii) or (iv)
above, in which event the transferee shall owner-occupy the Home and affirmatively assume
Owner's obligations under this Note and the City Deed of Trust, and the Resale Agreement) and
the Bo1rnwer shall provide written notice of such transfer to the City pursuant to Section 8 of the
Resale Agreement.
3. Security. This Note is secured by a second deed of trust dated the same date as
this Note (the "Deed of Trust").
a. Contingent Interest. The B01rnwer shall pay contingent interest equal to
thirty-five percent (_35_%) of the Appreciation Amount (the "Contingent Interest"). No
interest other than Contingent Interest shall be due hereunder. The Contingent Interest shall be
paid to the City at the time set f01ih in Section 6 below. B01Tower acknowledges that the
Contingent Interest percentage amount is equal to the City/Seller Loan principal amount as a
percentage of the total purchase price of the Residence paid by the Bonow er at the time of
purchase, multiplied by seventy-five one hundredths (.75). B01rnwer acknowledges that this
calculation of the percentage of the Appreciation Amount due to the City as Contingent Interest
includes a twenty-five percent (25%) discount to B01rnwer to account for any capital
improvements B01rnwer may make to the Residence.
4. Te1m. The Term of this Note shall mean the period commencing on the date of
this Note and expiring on the date thiliy (30) years thereafter.
5. Repayment. The total amount of the principal and any Contingent Interest owed
under this Note (including Excess Sales Proceeds due to the City pursuant to the Resale
Agreement) shall immediately become due and payable (i) in the event of a default by the
B01rnwer under this Note, the Resale Agreement, the Deed of Trust, or the First M01igage, (ii)
on the date Transfer is made whether voluntarily, involuntarily, or by operation of law and
whether by deed, contract of sale, gift, devise, bequest or othe1wise, (iii) in the event Bo1rnwer
ceases to occupy the Residence as his or her principal place of residence; or (iv) at the end of the
Te1m of this Note as described above in Section 5. Failure to declare such amounts due shall not
constitute a waiver on the pmi of the City to declare them due in the event of a subsequent
Transfer.
6. Late Payment Fees. If any payment due hereunder is not paid within five (5) days
from the date such becomes due, Bonower shall pay a reasonable late or collection charge equal
to five percent (5%) of the amount so unpaid. The City and Bonower agree that the actual
damages and costs sustained by the City due to the failure to make timely payments would be
extremely difficult to measure and that the charges specified in this pm·agraph represent a
reasonable estimate by B01Tower and the City of a fail· average compensation for such damages
and costs. Such charges shall be paid by Bonower without prejudice to the right of the City to
collect any other amounts provided to be paid under this Note, the Resale Agreement or the Deed
of Trust or, with respect to late payments, to declm·e a default.
3 12/16/2003
7. Prepayments. The Bo1rnwer may prepay all or part of the balance due under this
Note including principal and Contingent Interest. In the event the entire amount of principal due
under this Note is prepaid, all Contingent Interest, calculated as of the date of prepayment, shall
also be due at the time of prepayment. In the event of paitial prepayment, the amount of
Contingent Interest due upon prepayment shall be determined at the time of any paitial
prepayment based on the Fair Mai·ket Value of the Prope1ty. Paitial prepayments shall be
allocated between payment of Contingent Interest and payment of principal in the same
propmtion as the ratio of each to the total amount due (principal and interest) at the time of
prepayment. Following a prepayment, the percentage of Contingent Interest due the City shall
be recalculated to reflect the paydown in principal owed the City. The recalculated Contingent
Interest shall equal the outstanding principal amount of the Note divided by the original purchase
price of the Prope1ty paid by the B01Tower. Notwithstanding any prepayment of amounts due
under this Note, the Resale Agreement shall continue in full force and effect for the period of
time set fmth in Section 25 of the Resale Agreement.
8. No Assumption of Note. The BmTower acknowledges that this Note is given in
connection with the purchase of prope1ty (the "Residence") as pait of a program of the City to
assist in the purchase of homes by lower income persons. Consequently, this Note is not
assumable by transferees of the Residence, but is due in full upon Transfer.
9. Maintenance; Taxes; Insurance. Bmrnwer shall maintain the Residence in good
repair and in a neat, clean and orderly condition. BoITower shall promptly pay all prope1ty taxes
due on the Residence prior to any delinquency and shall comply with the insurance requirements
set fmth in the Deed of Trust and Resale Agreement.
10. Refinance of First Mmtgage Loan. The outstanding principal and interest on this
Note shall not be due upon prepayment and refinance of the First Mmtgage, and the Resale
Agreement and Deed of Trust shall be subordinated to the refinanced loan, provided that (i) such
refinancing is approved by the City, (ii) the amount refinanced does not exceed the outstanding
principal balance of the First Mmtgage at the time of refinance plus reasonable costs of
refinance, and ( iii) the refinance does not result in higher monthly payments on the First
Mmtgage Loan than were due prior to the refinance.
11 . Default.
a. The BolTower shall be in default under this Note if he or she is in default
under the First M01tgage following the expiration of First Mmtgage cure periods, or if, after the
notice and cure period provided by the City to the Bo1Tower pursuant to the notice and cure
provisions of the Deed of Trust, the Bmrnwer (i) fails to pay any money when due under this
Note; (ii) breaches any representation or covenant made in this Note or Resale Agreement in any
material respect; or (iii) breaches any provision of the Deed of Trust.
b. Upon the Bmrnwer's breach of any covenant or agreement of the
BmTower in this Note, the Resale Agreement or the Deed of Trust, including, but not limited to,
the covenants to pay, when due, any sums secured by the Deed of Trust, the City, prior to
acceleration, will send, in the manner set fo1th in Section 17, notice to the Bo1Tower specifying:
4 12/16/2003
(1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a date, not
less than thirty (30) days from the date the notice is effective, by which such breach, if curable, is
to be cured and ( 4) if the breach is curable, that failure to cure such breach on or before the date
specified in the notice may result in acceleration of the sums secured by the Deed of Trust and
foreclosure by the City. The notice will also inform the Bon-ower of the Borrower's right to
reinstate after acceleration and the right to bring a comt action to asse1t the nonexistence of
default or any other defense of the B01Tower to acceleration and sale.
12. Acceleration. Upon the occmTence of a default under this Note, the Resale
Agreement, the Deed of Trust, or the First M01tgage, the City shall have the right to declare the
full amount of the principal along with any Contingent Interest under this Note immediately due
and payable. Any failure by the City to pursue its legal and equitable remedies upon default
shall not constitute a waiver of the City's right to declare a default and exercise all of its rights
under this Note, the Resale Agreement, and the Deed of Trust. Nor shall acceptance by the City
of any payment provided for herein constitute a waiver of the City's right to require prompt
payment of any remaining principal and interest owed.
13. No Offset. The B01rnwer hereby waives any rights of offset it now has or may
later have against the City, its successors and assigns, and agrees to make the payments called for
in this Note in accordance with the terms of this Note.
14. Waiver; Attorney Fees and Costs. The Bon-ower and any endorsers or guarantors
of this Note, for themselves, their heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest,
dishonor and non-payment of this Note, and expressly waive any rights to be released by reason
of any extension of time or change in tenns of payment, or change, alteration or release of any
security given for the payments hereof, and expressly waive the right to plead any and all statutes
of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incmTed, including reasonable attorney
fees . If an action is instituted on this Note, the Bonower promises to pay, in addition to the costs
and disbursements allowed by law, such sum as a comt may adjudge reasonable as attorneys'
fees in such action.
15. No Waiver by the City. No waiver of any breach, default or failure of condition
under the terms of this Note shall be implied from any failure of the City to take action with
respect to such breach, default or failure or from any previous waiver of any similar or umelated
breach, default or failure.
16. Notices. All notices required in this Note shall be sent by ce1tified mail, return
receipt requested, or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
5 12/16/2003
To the Bo1rnwer:
Jill Moog
2362 Hosp Way #234
Carlsbad, CA 92008
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attention: Housing and Redevelopment Director
The paities may subsequently change addresses by providing written notice of the change
in address to the other paities in accordance with this section.
17. Joint and Several Obligations. This Note is the joint and several obligation of all
makers, sureties, guai·antors and endorsers, and shall be binding upon them and their successors
and assigns.
18. Nonliability for Negligence, Loss, or Damage. B01rnwer acknowledges,
understands and agrees that the relationship between Bonower and the City is solely that of
b01Tower and lender, and that the City does not unde1take or assume any responsibility for or
duty to B01Tower to select, review, inspect, supervise, pass judgment on, or inform B01Tower of
the quality, adequacy or suitability of the Residence or any other matter. The City owes no duty
of care to protect B01rnwer against negligent, faulty, inadequate or defective building or
construction or any condition of the Residence and B01rnwer agrees that neither Bonower, or
Bonower's heirs, successors or assigns shall ever claim, have or asse1t any right or action against
the City for any loss, damage or other matter ai·ising out of or resulting from any condition of the
Residence and will hold the City hai·mless from any liability, loss or damage for these things.
19. Indemnity. B01Tower agrees to defend, indemnify, and hold the City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys
fees that the City may incur as a direct or indirect consequence of:
a. the making of the loan to B01rnwer;
b. B01Tower's failure to perf01m any obligations as and when required by the
Note, the Resale Agreement or the Deed of Trust; of
c. the failure at any time of any of B01Tower's representations to the Seller or
the City to be true and conect.
6 12/16/2003
20. Tennination of Restrictions. Any legal restrictions on conveyance of the
Residence (as defined in 24 CFR 203.41(a)(3)) included in this Note shall terminate upon
transfer of the Residence by foreclosure, deed in lieu of foreclosure, or assignment to the
Secretary of the United States Depaitment of Housing and Urban Development.
21. Controlling Law. This Note shall be construed in accordance with and be
governed by the laws of the State of California.
22. Assignment by City. The City may assign its right to receive the proceeds under
this Note to any person and upon notice to the B01Tower by the City all payments shall be made
to the assignee.
23 . Invalid Provisions. If any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions contained in
this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained in this Note.
24. Entire Agreement. This Note (along with the Resale Agreement and Deed of
Trust) sets f01th the entire understanding and agreement of the City and the B01Tower and any
amendment, alteration or interpretation of this Note must be in writing signed by both the City
and the B01Tower.
BORROWER
(Print Name)
7 12/16/2003
RECORDING REQUESTED PURSUANT
TO GOVERNMENT
CODE SECTION 27383
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
CARLSBAD CALIFORNIA 92008
(Space above for Recorder's Use)
RESALE RESTRICTION AGREEMENT,
AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM -2003
Owner: Jill Moog
Address of Home: 2362 Hosp Way #234,
Carlsbad CA 92008
This Resale Restriction Agreement and Option to Purchase (the "Agreement 11) is entered
into as of this .1B...±h:_ day of N {l\J -e Vl'-b er , 2001 by and between the City of Carlsbad ( the
"City "), Gid:u, \_,, f<Act>eI (the "Developer ") and Jill Moog (the "Owner 11).
RECITALS
A. The City has developed a second mortgage program designed to assist qualified
lower income households purchase their homes located within the City of Carlsbad (the
"Homebuyer Program 11).
B. In connection with the Homebuyer Program and in fulfillment of its inclusionary
obligation pursuant to an Affordable Housing Agreement (the "Affordable Housing Agreement 11) between Curtis L. Farber (the "Sponsor 11) and the City dated
September 1, 2004, the Developer made a loan (the "City/Seller Loan 11) in the amount of _one
hundred twenty thousand Dollars ($_120,000 to Owner to purchase a single-
family dwelling located in Carlsbad, California on that certain real property and more
1 12/16/2003
paiticularly described in Exhibit A (the "Home ") and then assigned the City/Seller Loan to the
City. In consideration of the City/Seller Loan, the Owner agreed to enter into the Agreement.
As used herein, the term "Home II includes both the real prope1ty and all improvements now or
hereafter erected on the prope1ty and all easements, rights, appmtenances, and all fixtures now or
hereafter attached to the prope1ty.
C. The purchase price of the Home 1s _two hundred fifty-five thousand
____________ Dollars ($ __ 25_5~,_00_0 _____ _, (the "Purchase Price ").
D. The Owner is receiving a First Lender Loan in the amount of (Jnfl ~l U.11d r"f>t: n;►·) -ftlDU5a..~1
Dollai·s ($io q15 00 S1/) (the "First Lender Loan ") from Wo (' I cl Stl v, YI §~ (the -f,v·~ h1,V1c.\teA
"First Lender "). The First Lender Loan is secured by a deed of trust dated >J o\J . t ~ t:L
2°"'/, executed by the Buyer in favor of First Lender and recorded in the County of San Diego
on ________ , 20_, and assigned Recorder's Serial No. ______ (the "First
Lender Deed of Trust").
E. The Loan is evidenced by a promissory note in the amount of the Loan (the "City
Note "). This Agreement and the City Note shall be secured by a deed of trust (the "City Deed
of Trust ") subordinate to the lien of First Lender Deed of Trust.
F. The purpose of this Agreement is to place resale controls on the Home, to provide
the City an option to purchase the Home at a restricted price and to ensure that the Owner
complies with the Home buyer Program requirements.
G. This Agreement also meets the requirements of Health and Safety Code Sections
33334.2 and 33334.3 and permits the City to meet the affordable housing production
requirements of Health and Safety Code Section 33413(6).
H. This Agreement and the City Note require repayment of the loan plus contingent
interest and, in ce1tain instances, payment of excess proceeds of sale. This Agreement will
remain in full effect as an encumbrance on the Prope1ty after any prepayment of the City Note by
the Buyer.
NOW, THEREFORE, in consideration of the benefits received by the Owner and the
City, the Owner and the City agree, as follows :
1. DEFINITIONS AND EXHIBITS
A The following terms are specifically defined for this Agreement and their
definitions can be found in the Sections indicated below:
( 1) "Agreement " -first sentence of the Agreement on page 1.
(2) "City 11
-first sentence of the Agreement on page 1.
2 12/16/2003
(3) "City Deed of Trust 11
-Recital E.
(4) "City Designated Purchaser" -Section 12B.
( 5) "City/Seller Loan 11
-Recital B.
(6) "City Note" -Recital E.
(7) "City Option" -Section 12A.
(8) "City Response Notice" -Section 10.
(9) "Eligible Purchaser II Section 15B.
(10) "Extended Te1m" -l0C.
( 11) "Excess Sales Proceeds " -Section 16.
(12) "Fair Market Value" -Section 14B.
(13) "First Lender" -Recital D.
(14) "First Lender Deed of Trust" -Recital D
(15) "First Lender Loan" -Recital D.
( 16) "Home " -Recital B.
(17) "HUD" -Section 30.
(18) "Initial Term" -lOB.
(19) "Market Purchaser" -Section l0C.
(20) "Maximum Restricted Resale Price" -Section 14 .
(21) "Median Income" -Section 14A.
(22) "Owner" -first sentence of the Agreement on page 1.
(23) "Owner's Notice oflntent to Transfer" -Section 8.
(24) "Proposed Purchaser" -Section 15A.
(25) "Purchase Price " -Recital C.
3 12/16/2003
(26) "Restricted Future Sales Price 11 -Section 14A.
(27) "Transfer 11
-Section 7.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A:
(2) Exhibit B:
(3) Exhibit C:
(4) Exhibit D:
(5) Exhibit E:
2. OWNER CERTIFICATIONS
Legal Description of Prope1ty (Home)
Fmm of Owner Occupancy Ce1tification
Fmm of Owner's Notice oflntent to Transfer
F01m of Owner Acknowledgement of City Response
Notice
Fmm of Owner Request for City Subordination to
Refinanced First Lender Loan
The Owner ce1tifies that (i) the financial and other information previously provided in
order to qualify to purchase the Home is true and coITect as of the date first written above, ( ii) the
Owner is an Eligible Purchaser, and ( iii) the Owner shall occupy the Home as the Owner's
principal place of residence.
3. OCCUPANCY AND LEASING OF HOME
A. The Owner shall occupy the Home as the Owner's principal place of residence
within sixty (60) days of close of escrow on the City/Seller Loan. Failure by the Owner to
occupy the Home as the Owner's principal place of residence shall constitute a default under this
Agreement for which the City may exercise its option to purchase pursuant to Section 21 below.
The Owner shall be considered as occupying the Home if the Owner is living in the unit for at
least ten ( 10) months out of each calendar year. The Owner shall provide an annual written
ce1tification in the form shown in the attached Exhibit B, to the City that the Owner is occupying
the Home as his or her principal place of residence.
4. LEASING OF PROPERTY
The Owner shall not lease the Prope1ty to another patty. Any lease of the Prope1ty in
violation of this Agreement is prohibited, and shall be a default under this Agreement and the
City Deed of Trust. The Owner fmther agrees that, in the event the Owner leases the Prope1ty to
a third . patty in violation of this section, any rents in excess of the owners monthly housing
payment, which includes the principal mmtgage payment and interest, prope1ty taxes and
insurance, paid to the Owner by the lessee over the shall be due and payable to the City
immediately upon receipt thereof by the Owner. Such excess rental proceeds shall be considered
a recourse debt of the Owner to the City, as evidenced by the Note, which the City may collect
by legal action against the Owner and/or by foreclosure under the City Deed of Trust.
4 12/16/2003
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time home buyer education class offered by
an organization approved by the Housing and Redevelopment Director
6. MAINTENANCE AND INSURANCE PROCEEDS
A The Owner shall maintain the Home, including landscaping, in good repair and in
a neat, clean and orderly condition and will not commit waste or permit deterioration of the
Home . Failure by the Owner to maintain the Home shall constitute a default under this
Agreement for which the City may exercise the City Option to purchase the Home pursuant to
Section 21 below.
B. The Owner shall maintain a standard fire and extended coverage Home insurance
policy equal to the replacement value of the Home (adjusted every five (5) years by appraisal, if
requested by City), naming the City as an additional insured. Additional insurance requirements
are set fo1th in Section 6 of the City Deed of Trust.
7. TRANSFER AND SALE RESTRICTIONS
Any Transfer of the Home will be subject to the provisions of this Agreement including,
without limitation, exercise of the City Option pursuant to Section 12 below . "Transfer " shall
mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home,
including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common
interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which
possession of the Home is transfen-ed and Owner retains title, or a deed of trust. Any Transfer
without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not
include a transfer: (i) to an existing spouse who is also an obligor under the City Note; (ii) by the
Owner to a spouse where the spouse becomes the co-owner of the Home; ( iii) between spouses
as patt of a matTiage dissolution proceeding; (iv) to an existing spouse of Owner by devise or
inheritance following the death of Owner; (v) by Owner into an inter vivos trust in which Owner
is the beneficiary; (vi) by deed of trust or imposition of a lien subordinate to the City Deed of
Trust or (vii) refinance of the First M01tgage meeting the requirements of Section 28 of this
Agreement; provided, however, that Owner shall provide written notice of all such transfers to
City pursuant to Section 8 below; and Owner shall continue to occupy the Home as his or her
principal place of residence (except where the transfer occurs pursuant to subsection (iii) or (iv)
above, in which event the transferee shall owner-occupy the Home and affirmatively assume
Owner's obligations under this Agreement, the City Note and the City Deed of Trust).
8. NOTICE OF INTENDED TRANSFER
A In the event the Owner intends to transfer (including without limitation all
"Transfers " as defined in Section 7) or vacate the Prope1ty, the Owner shall promptly give the
City written notice of such intent ( the "Owner's Notice of Intent to Transfer ") in the fo1m shown
in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to
5 12/16/2003
Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the
Prope1ty and prior to listing of the Prope1ty on the Multiple Listing Service. The Owner's Notice
oflntent to Transfer shall be sent to the City in the manner and at the address provided in Section
33 of this Agreement. The Owner's Notice of Intent to Transfer shall include the information
necessary for the City to dete1mine the Maximum Restricted Resale Price of the Prope1ty,
including the following information:
( 1) the address of the Prope1ty;
(2) the date of purchase of the Prope1ty by the Owner;
(3) the purchase price of the Prope1ty paid by the Owner at the time of his/her
purchase;
( 4) a copy of the HUD-1 Settlement Statement or equivalent document from
the close of escrow on the Owner's purchase of the Prope1ty;
(5) the date on which Owner intends to vacate Prope1ty;
( 6) the date the Prope1ty will be placed on the market; and
(7) the name and phone number of the person to contact to schedule
inspection of the Prope1ty by the City.
9. OWNER PREPARATION OF HOME FOR SALE
A The Owner may not wish to contract with a real estate broker to sell the
Home until the Owner has 1·eceived the City Response Notice pursuant to Section 10 below,
as the services of a broker will not be required if the City exercises the City Option to
purchase the Home pursuant to Section 12 below.
B. Following delivery to the City of the Owner's Notice of Intent to Transfer, the
Owner shall prepare the Home for sale, as follows:
(1) within thilty (30) days of delivery of the Owner's Notice of Intent to
Transfer, the Owner shall obtain and deliver to the City a cun-ent written rep01t of inspection of
the Horne by a licensed structural pest control operator;
(2) within the sooner of (a) sixty (60) days from the date of delivery of the
Owner's Notice oflntent to Transfer, or (b) prior to close of escrow on the Transfer, the Owner
shall repair all damage noted in the pest rep01t including damage caused by infestation or
infection by wood-destroying pests;
(3) within thi1ty (30) days of the date of the Owner's Notice of Intent to
Transfer, the Owner shall allow the City to inspect the Home to dete1mine its physical condition;
6 12/16/2003
(4) if the Home is vacant, the Owner shall maintain utility connections until
the close of escrow on the Transfer;
(5) in the event of purchase of the Prope1ty by the City or City Designated
Purchaser, the Owner shall permit a final walk-through of the Prope1ty by the City or City
Designated Purchaser, in the final three (3) days prior to close of escrow on the Transfer.
10. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER
City shall respond in writing (the "City Response Notice ") to the Owner's Notice of
Intent to Transfer. The City Response Notice shall inform the Owner of the City's election to
proceed under one (1) of the following two (2) alternatives:
A City Exercise of City Purchase Option. The City Response Notice may notify the
Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase
the Home. The City Response Notice shall be sent within thi1ty (30) days of City receipt of
Owner's Notice oflntent to Transfer and shall include the City's calculation of the (i) Maximum
Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated
Purchaser and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below.
B. Initial Term: Owner Sale at a Restricted Sales Price to Eligible Purchaser.
Alternatively, the City Response Notice may notify the Owner that the City or a City Designated
Purchaser will not exercise the City Option to purchase the Home. In this case, if the Owner has
sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
Agreement (the "Initial Term"), the City Response Notice shall tell the Owner that the Owner
may proceed to sell the Home to an Eligible Purchaser at a price not to exceed the Maximum
Restricted Resale Price, as set fmth in Section 14 and pursuant to the procedure set fmth in
Section 14 below. In this event, the City Response Notice shall include the following
information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the
same income category as the Owner at the time of the Owner's purchase); (2) the ce1tifications
required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may
receive for the Home, calculated by the City pursuant to Section 14 below; (4) whether
Homebuyer Program assistance from the City may be available to an Eligible Purchaser, (5)
Owner's repayment obligation as required by Section 13 .
C. Extended Term Owner Sale to Market Purchaser. If the City Response Notice
notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option
to purchase the Home, and the Owner has sent the Notice of Intent to Transfer between the
fifteenth (15 th) and thi1ty (30) years of the Term, (the "Extended Term "), the City Response
Notice shall inform Owner that Owner may proceed to sell the Home to a third paiiy at any
income level (the "Mai·ket Purchaser ") for an umestricted price. The City Response Notice
shall also inform Owner of Owner's repayment obligation as required by Section 13.
7 12/16/2003
11 . OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
No later than seven (7) days following the date of the City Response Notice, the Owner
shall acknowledge in writing to the City, in the fo1m shown in the attached Exhibit D, that he/she
has received the City Response Notice and still intends to Transfer the Home.
12. CITY PURCHASE OPTION
A The Owner agrees that if the Owner decides to Transfer the Home, the City shall
have the option to purchase the Home for the Maximum Restricted Resale Price calculated
pursuant to Section 14 of this Agreement (the "City Option"). The Owner shall pay the City a
transaction fee equal to six percent ( 6%) of the Maximum Restricted Resale Price if the City or a
City Designated Purchaser exercises the City Option and purchases the Home. The City Option
may be exercised by the City or by a City Designated Purchaser in the City Response Notice. If
the City Response Notice notifies the Owner that the City or a City Designated Purchaser will
exercise the City Option to purchase the Home, the City or the City Designated Purchaser shall
purchase the Home within ninety (90) days of the date of the City Response Notice.
B. The City may assign the City Option to another public agency, a nonprofit
corporation, or an Eligible Purchaser selected by the City ( any of which shall be refened to
herein as a "City Designated Purchaser "). If the City assigns the City Option to a City
Designated Purchaser, the City Response Notice shall be executed by the City Designated
Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City
Option in lieu of the City.
C. In the event of exercise of the City Option and purchase of the Home by the City
or a City Designated Purchaser, the Owner shall permit a final walk-through of the Home by the
City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the
Transfer.
13 . REPAYMENT OF CITY NOTE
Upon any Transfer of the Prope1iy, the outstanding principal and interest due under the
City Note shall be repaid pursuant to the City Note and shall not be credited against the purchase
price; provided, however, that upon City exercises the City Option to purchase the Home, the
outstanding amount of principal and Contingent Interest due under the City Note shall be paid to
the City in the form of a credit against the purchase price to be paid by the City to the Owner.
Repayment of the City Note shall not affect Owner's obligation to comply with this Agreement,
which shall remain in full force and effect following any repayment of the Agency Note.
14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price (the "Maximum Restricted Resale Price ") that the Owner
shall receive from the resale of the Home from purchase of the Home by the City or City
Designated Purchaser or from other sale or Transfer by the Owner when the Owner sends the
Notice of Intent to Transfer during the Initial Term shall be the Restricted Future Sales Price or
8 12/16/2003
the Fair Market Value, whichever is less.
A. Restricted Future Sales Price.
( 1) The Restricted Future Sales Price of the Home means the sales price of the
Home at the time of purchase by the Owner, as set forth in Recital E to this Agreement,
increased by the percentage of increase in the Median Income from the date of the original
purchase of the Home by the Owner to the date of receipt by the City of the Owner's Notice of
Intent to Transfer. "Median Income " shall refer to the median yearly income, adjusted for a
household size of four, in San Diego County, as published by the California Depaitment of
Housing and Community Development ( "HCD "), or, in the event such income detennination is
no longer published by HCD, or has not been updated for a period of at least eighteen ( 18)
months, the City may use or develop such other reasonable method as it may choose in order to
determine the median yeai·ly income in San Diego County. As of the date of Owner's purchase
of the Prope1ty, the Median Income for a household of four persons 1s
$63,400 Dollars ($ 63,400 ).
(2) The Restricted Future Sales Price shall include a downward adjustment,
where applicable, in an amount necessai·y to repair any violations of applicable building,
plumbing, electric, fire or housing codes or any other provisions of the City of Cai·lsbad Building
Code, as well as any other repairs needed to put the Home into a "sellable condition ". Items
necessai·y to put a Home into sellable condition shall be determined by the City, and may include
cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed
appliance repairs and other defe1Ted maintenance repairs.
B. Fair Market Value. In ce1iain circumstances it may be necessai·y to detennine the
fair market value of the Prope1ty without taking account of the resale restrictions imposed by this
Agreement (the "Fair Market Value"). These circumstances include: (1) where the paities wish
to detennine if the Restricted Future Sales Price exceeds the Fair Market Value in order to
determine the Maximum Restricted Resale Price pursuant to this section; (2) where the patties
wish to determine if the sales price of the Home to a Mai·ket Purchaser is comparable to the Fair
Market Value; and (3) to calculate the amount due under the City Note at the end of the te1m of
the City Note. If it is necessai·y to dete1mine the Fair Market Value of the Prope1ty, it shall be
dete1mined by a ce1tified MAI or other qualified real estate appraiser approved in advance by the
City. If possible, the appraisal shall be based upon the sales prices of comparable prope1ties sold
in the market area during the preceding three (3)-month period. The cost of the appraisal shall be
paid by the Owner, unless the appraisal is obtained from a new purchaser. Nothing in this
section shall preclude the Owner and the City from establishing the Fair Market Value of the
Prope1ty by mutual agreement in lieu of an appraisal pursuant to this section.
15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE
OPTION TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the Home to
an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the Owner
may proceed to sell the Home in compliance with the following requirements:
9 12/16/2003
A Marketing. The Owner shall use bona fide good faith efforts to sell the Home to
an Eligible Purchaser in compliance with this section, including listing the Home on the Multiple
Listing Service, keeping the Home in an orderly condition, making the Home available to show
to agents and prospective buyers, and providing buyers with Eligible Purchaser requirements,
including income qualifications and the City's fo1m of disclosure statement summarizing the
te1ms of the buyer's occupancy and resale restriction agreement with option to purchase. A
proposed purchaser ( "Proposed Purchaser ") who the Owner believes will qualify as an Eligible
Purchaser shall be refe1Ted to the City for an eligibility determination. If the Proposed Purchaser
qualifies as an Eligible Purchaser the City will also dete1mine if such Eligible Purchaser is
eligible for City housing-related financial assistance that may be available at the time of resale.
B. Eligible Purchaser. A Proposed Purchaser shall qualify as an "Eligible Purchaser
" if he or she meets the following requirements, as dete1mined by the City:
( 1) Income Eligibility. The combined maximum income for all household
members of the Proposed Purchaser shall not exceed the income level designated by the City in
the City Response Notice.
(2) Intent to Owner Occupy. The Proposed Purchaser shall ce1tify that he or
she will occupy the Home as to his or her principal place of residence throughout his or her
ownership. Co-signers are not required to occupy the Home.
(3) Agreement to Sign Resale Restriction Agreement and to Cooperate with
the City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting
future resale of the Home and shall agree to cooperate fully with the City in promptly providing
all information requested by the City to assist the City in monitoring the Proposed Purchaser's
compliance with the resale restriction agreement.
C. Maximum Restricted Resale Price. The purchase price for the sale of the Home
by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set fmth in the City Response Notice.
The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego .
D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1) The name, address and telephone number m writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other suppmting documentation requested by the City. The
financial information shall be used by the City to dete1mine the income eligibility of the
Proposed Purchaser.
10 12/16/2003
(3) The proposed sales contract and all other related documents which shall
set fmth all the terms of the sale of the Home. Said documents shall include at least the
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for
the Owner's personal Home, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
( 4) A written ce1tification, from the Owner and the Proposed Purchaser in a
form acceptable to the City that the sale shall be closed in accordance with the terms of the sales
contract and other documents submitted to and approved by the City. The ce1tification shall also
provide that the Proposed Purchaser or any other patty has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other patty, money or other consideration, including personal prope1ty, in addition to what is set
faith in the sales contract and documents submitted to the City. The written ce1tification shall
also include a provision that in the event a Transfer is made in violation of the terms of this
Agreement or false or misleading statements at·e made in any documents or ce1tification
submitted to the City, the City shall have the right to foreclose on the Home or file an action at
law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incmTed
by the Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and
legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold
the City hat·mless and reimburse the City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5) An executed buyer's resale agreement and deed of trust to the City from
the Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is receiving
assistance from the Homebuyer Program, a promissory note to the City shall also be required.
The recordation of the new deed of trust and buyer's resale agreement shall be a condition of the
City's approval of the proposed sale.
( 6) The name of the title company escrow holder for the sale of the Home, the
escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, ce1tified copies of the recorded City
deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement
statement, escrow instructions, and any other documents which the City may reasonably request.
16. PA YJ\1ENT TO CITY OF EXCESS SALES PROCEEDS
If the Owner makes a Transfer in violation of this Agreement during the Initial Term or
after providing the City with a the Notice oflntent to Transfer during the Initial Term, the Owner
shall pay the Excess Sales Proceeds to the City. For purposes of this Agreement, "Excess Sales
Proceeds II shall mean ninety-four percent (94%) of the amount by which the gross sales
proceeds received by the Owner from the new purchaser exceed the Maximum Restricted Resale
Price for the Home ( in the amount that was stated in the City Response Notice). This amount
shall be a debt of the Owner to the City, further evidenced by the City Note, and secured by the
City Deed of Trust. The Owner acknowledges that the City shall have no obligation to cause
11 12/16/2003
reconveyance of this Agreement or of the City Deed of Trust until the Excess Sales Proceeds are
paid to the City. The City shall utilize the Excess Sales Proceeds for City affordable housing
programs. The Owner and the City acknowledge that the f01mula for calculation of the amount
of Excess Sales Proceeds due from the Owner to the City is intended to cause the Owner to
receive the same net sales proceeds (following payment by Owner of a standard broker's
commission) from sale of the Home at an umestricted price to a market purchaser (in violation of
this Agreement) as the Owner would receive from sale of the Home to the City, City Designated
Purchaser or to an Eligible Purchaser at the Maximum Restricted Resale Price.
17. SALE OF PROPERTY BY OWNER DURING EXTENDED TERM
In the event the City Response Notice notifies the Owner to proceed to sell the Home to a
Market Purchaser at a price greater than or equal to the Fair Market Value of the Home, the
Owner may proceed to sell the Home in compliance with the following requirements:
Upon any sale of the Home, the Owner shall submit to the City at least fifteen (15) days
prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a written
declaration, under penalty of pe1jury, from the Owner and the proposed purchaser in a form
acceptable to the City stating the gross sales price of the Home. The certification shall also
provide that the proposed purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the proposed purchaser or any
other party, money or other consideration, including personal prope1ty, in addition to what is set
f01ih in the sales contract. At close of escrow, Owner shall submit to the City a copy of the
HUD-1 Settlement Statement showing the purchase price paid for the Home.
18. DEFAULTS
A The following events shall constitute a Default by the Owner under this
Agreement:
( 1) The City dete1mines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Home or in connection with its obligations under this
Agreement;
(2) The Owner fails to owner occupy the home, as required pursuant to
Section 3 above, and such failure continues following written notice by the City and sixty (60)
days oppo1tunity to cure following the date of such notice.
(3) The Owner rents the Home in violation of Section 4 above, and such
failure continues following written notice by the City and sixty (60) days oppmtunity to cure.
( 4) The Owner fails to provide information to the City necessary to dete1mine
Owner's compliance with the requirements of this Agreement.
( 5) The Owner makes a Transfer in violation of this Agreement;
12 12/16/2003
( 6) The Owner othe1wise fails to comply with the requirements of this
Agreement and such violation is not c01Tected to the satisfaction of the City within ten (10) days
after the date of written notice by the City to the Owner of such violation; or
(7) A notice of default is issued under First Lender Loan or other financing
secured by the Home.
(8) A lien is recorded against the Home other than the lien of a bona fide
mortgage loan.
(9) Owner places a mo1tgage on the Home in violation of Section 28 below.
(10) Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the
following:
( 1) Declare all Excess Sales Proceeds immediately due and payable without
fmther demand, accelerate payments due under the City Note and invoke the power of sale under
the City Deed of Trust;
(2) Apply to a comt of competent jurisdiction for such relief at law or in
equity as may be appropriate;
(3) Declare a Default under the City Note and the City Deed of Trust and
pursue all City remedies under the City Note and the City Deed of Trust; and
( 4) Exercise the City Option upon Default as described in Section 21 below.
19. NOTICE AND CURE
Upon Default or a violation of any of the provisions of this Agreement, the City may give
written notice to the Owner specifying the nature of the violation. If the violation is not
coITected to the satisfaction of the City within a reasonable period of time, not longer than thilty
(30) days after the date the notice is mailed, or within such fmther time as the City determines is
necessary to con-ect the violation, or if the Owner is in default under any other mmtgage loan on
the Home, the City may declare a default under this Agreement.
The City shall notify First Lender at the address provided by the First Lender to the City
in the manner set fmth in Section 33 of this Agreement, if the City has declared a default under
this Agreement or under the City Note or City Deed of Trust.
13 12/16/2003
20. NOTICE TO CITY OF DEFAULT
A request for notice of default and any notice of sale under any deed of trust or m01tgage
with power of sale encumbering the Home shall be recorded by the City in the Office of the
Recorder of the County of San Diego for the benefit of the City. The City may declare a default
under this Agreement upon receipt of any notice given to the City pursuant to Civil Code Section
2924b, and may exercise its rights as provide in Sections 18 and 21.
In the event of default and foreclosure under the First Lender Loan or any other m01tgage
loan on the Home, the City shall have the same right as the Owner to cure defaults and redeem
the Home prior to the foreclosure sale. Nothing herein shall be construed as creating any
obligation of the City to cure any such default, nor shall this right to cure and redeem operate to
extend any time limitations in the default provisions of the underlying deed of trust or m01tgage.
If the City failed to file the request for notice of default, the City's right to purchase the
Home shall commence from the date a notice of default is given by the City to the Owner.
21. PURCHASE OPTION UPON DEFAULT
A Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Option provided in Section 12, the Owner hereby grants to the
City or the Designee the option to purchase the Home effective upon the declaration of a default
by the City pursuant to Section 18 and Section 19 above, and subject to notice and cure rights set
f01th in Section 19. Said option to purchase is given in consideration of the economic benefits
received by the Owner resulting from ownership of the Home made possible by the financial
assistance of the City in the purchase of the Home.
B. Exercise of Option. The option to purchase may be exercised upon a default
under this Agreement or upon default under any promissory note, deed of trust or any other lien,
including a judgment lien, recorded against the Home. The City shall have thi1ty (30) days after
a default is declared to notify the Owner and the First Lender of its decision to exercise its option
to purchase. Not later than ninety (90) days after the notice is given by the City to the Owner of
the City's intent to exercise its option, the City shall purchase the Home for the Maximum
Restricted Resale Price set fo1th in Section 14. The City may assign its rights to purchase the
Home under this section to a City Designated Purchaser.
22. NONLIABILITY OF THE CITY
A No Obligation to Exercise Option. The City shall have no obligation to exercise
any option granted it under this Agreement. In no event shall the City become in any way liable
or obligated to the Owner or any successor-in-interest to the Owner by reason of its option to
purchase under Sections 12 and 21 nor shall the City be in any way obligated or liable to the
Owner or any successor-in-interest to the Owner for any failure to exercise its option to
purchase.
14 12/16/2003
B. Nonliability for Negligence, Loss, or Damage. Owner acknowledges,
understands and agrees that the relationship between Owner and the City is solely that of an
owner and an administrator of a City inclusionaiy housing program, and that the City does not
unde1take or assume any responsibility for or duty to Owner to select, review, inspect, supervise,
pass judgment on, or inform Owner of the quality, adequacy or suitability of the Prope1ty or any
other matter. The City owes no duty of cai·e to protect Owner against negligent, faulty,
inadequate or defective building or construction or any condition of the Prope1ty and Owner
agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert
any right or action against the City for any loss , damage or other matter arising out of or
resulting from any condition of the Prope1ty and will hold the City hai·rnless from any liability,
loss or damage for these things.
C. Indemnity. Owner agrees to defend, indemnify, and hold the City hai·rnless from
all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees
that the City may incur as a direct or indirect consequence of: (1) Owner's default, performance,
or failure to perfmm any obligations as and when required by this Agreement or the Deed of
Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and
COlTect.
23. RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Horne through a deed in lieu of foreclosure, a trustee's
deed upon sale, or othe1wise, the Owner shall not be entitled to the proceeds of sale to the extent
that such proceeds othe1wise payable to the Owner when added to the proceeds paid or credited
to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder
of such excess proceeds to pay such proceeds to the City in consideration of the benefits received
by the Owner through purchase of the Horne under this Agreement.
24. RESTRICTION ON INSURANCE PROCEEDS
If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the
Horne, the Owner shall pay the City the pmtion of any insurance proceeds received by the
Owner for such destruction or damage which is in excess of the Maximum Restricted Resale
Price calculated pursuant to Section 14 above.
25. TERM OF AGREEMENT
All the provisions of this Agreement, including the benefits and burdens, run with the
land and the Horne and this Agreement shall bind, and the benefit hereof shall inure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors until the eai·lier of (i) thi1ty (30) yeai·s from the date of recordation of
this Agreement or (ii) the date of Transfer of the Prope1ty to the City or another purchaser in
compliance with this Agreement (including execution by the purchaser of a new resale restriction
agreement for the benefit of the City).
15 12/16/2003
26. SUPERIORITY OF AGREEMENT
The Owner covenants that he or she has not, and will not, execute any other agreement
with provisions contradictory to or in opposition to the provisions of this Agreement hereof, and
that, in any event, this Agreement is controlling as to the rights and obligations between and
among the Owner, the City and their respective successors.
27. SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of the First Lender Loan and shall not impair the rights of the First
Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender
Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such
remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a
deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Agreement shall be forever tenninated and shall have no
fmiher effect as to the Home or any transferee thereafter; provided, however, if the holder of
such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in
lieu of foreclosure, this Agreement shall automatically terminate upon such acquisition of title,
provided that (i) the City has been given written notice of default under such First Lender Deed
of Trust and (ii) the City shall not have cured or commenced to cure the default within such
thiiiy (30)-day period and given its firm commitment to complete the cure in the form and
substance acceptable to the First Lender. Owner agrees to record any necessary documents to
effect such te1mination, if applicable.
28. REFINANCE OF FIRST LENDER LOAN
The outstanding principal on the City Note shall not be due upon prepayment and
refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be
subordinated to the refinanced First Lender Loan, provided that (i) such refinancing is approved
by the City, (ii) the amount refinanced does not exceed the outstanding principal balance of the
First M01igage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance
does not result in higher monthly payments on the First Lender Loan than were due prior to the
refinance. M01igage loans or equity lines of credit junior in lien priority to the City deed of trust
are not pe1mitted. The City and the Owner agree that the requirements of this section are
necessary to ensure the continued affordability of the Prope1iy to Owner and to ininimize the risk
of loss of the Prope1iy by Owner through default and foreclosure of m01igage loans. Owner
further acknowledges that violation of the provisions of this section shall constitute a Default
under this Agreement. A form for use by the Owner in requesting City subordination to a
refinanced First Lender Loan is attached hereto as Exhibit E.
29. NONDISCRIMINATION
The Owner covenants by and for itself and its successors and assigns that there shall be
no discrimination against or segregation of a person or of a group of persons on account of race,
color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national
16 12/16/2003
(
origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the
Owner or any person claiming under or through the Owner establish or permit any such practice
or practices of discrimination or segregation with reference to the use, occupancy, or transfer of
the Home. The foregoing covenant shall run with the land.
30. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement
shall not diminish or affect the rights of the California Housing Finance Agency ( "CHFA "), the
United States Depaitment of Housing and Urban Development ( "HUD "), the Federal National
Mo1tgage Association ( "FNMA "), or the Veterans Administration ( "VA ") under the First
Lender Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against
the Home in compliance with Section 28 above.
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is
undergoing consideration by HUD for assignment forbeai·ance relief, or (ii) the Owner is
undergoing consideration for relief under HUD's Temporai-y Mmtgage Assistance Payment
(TMAP) program.
32. INVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
33. NOTICES
All notices required herein shall be sent by ce1tified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on he delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or the date
Notice was returned as undeliverable as follows:
17 12/16/2003
(
To the Owner:
Jill Moog
2362 Hosp Way# 234
Carls bad, CA 92008
To the City:
City of Carls bad
Housing and Redevelopment Depmtment
296 5 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Homebuyer Program
To the First Lender:
[ to be inserted]
The patties may subsequently change addresses by providing written notice of the change in
address to the other patties in accordance with this section.
34. INTERPRETATION OF AGREEMENT
The tenns of this Agreement shall be interpreted so as to avoid speculation on the Home
and to insure to the extent possible that the mmtgage payments remain affordable to low and
moderate income households .
35. CONTROLLINGLAW
The te1ms of this Agreement shall be interpreted under the laws of the State of California.
* * * * *
18 12/16/2003
36. EXHIBITS
Any exhibits refen-ed to in this Agreement are incorporated in this Agreement by such
reference.
IN WITNESS WHEREOF, the patties have executed this Agreement on or as of the date
first written above.
CITY: OWNER:
City of Cai·lsbad, a municipal corporation ::Jil)' JYJ~
Print Nam~
Name: J-£A'\IMO t-..)~:B.?e,clii\t"
\
Signature Ci
Title: ~ \ t~ 'M.a,.~Q_,\
Print Name
Signature
19 12/16/2003
STATE OF CALIFORNIA
COUNTY OF Sa,)'\ t,'f~O
)
) ss.
)
On rJoveh"! l.J.Rf ,c; , 2004, before me, the undersigned, a Notaty Public,
personally appeared I I -, Y'YI , personally known to
me ( or proved to me on the basis of satisfactm evidence) to be the person(s) whose name(s)
is/ai·e 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.
)
) ss.
COUNTY OF )
On----------~-' 2004, before me, the undersigned, a Notaiy Public,
personally appeared _____ ____,,,,_ ______________ , personally known to
me (or proved to me on the basis of s ·sfactory evidence) to be the person(s) whose name(s)
is/ai·e subscribed to the within instrumen , d 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 beli of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
1010\15\172084.3
12/10/03
EXHIBIT A
Prope1ty Description
1010\15\172083.3 A-1
Page 1
EXHIBIT "A"
PARCEL A:
AN UNDIVIDED 11108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81 -41, IN
THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS PER MAP
THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM THE FOLLOWING :
(A) ALL UNITS AS SHOWN UPON THE GROVE PHASE I CONDOMINIUM PLAN
(HEREINAFTER "CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE
NO. 83-337701 AND RE-RECORDED DECEMBER 7, 1983 AS FILE NO. 83-444150
BOTH OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF THE COUNTY OF
SAN DIEGO.
(B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS
BALCONY, PATIO, STORAGE, COVERED PARKING SPACE AND PARKING SPACE
EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE
REFERRED TO.
PARCEL B:
UNIT LU 234 AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO ABOVE.
PARCEL C:
EXCLUSIVE RIGHT TO USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF
PARCEL A DESCRIBED ABOVE DESIGNATED AS B 234, CPS-234, P_, S-234, AND PS-
234, AS APPURTENANT TO PARCELS A AND B ABOVE DESCRIBED.
PARCEL D:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT
OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER
MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH
EASEMENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS
EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY,
UPON RECORDATION OF A DECLARATION OF ANNEXATION DECLARING SUCH LOTS,
RESPECTIVELY, TO BE SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS,
AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES
THE OWNERS OF SAID LOTS, RESPECTIVELY, TO BE MEMBERS OF THE ASSOCIATION
(AS DEFINED BELOW) ALL AS MORE FULLY SET FORTH IN THE DECLARATION TO WHICH
REFERENCE IS HEREAFTER MADE. THE COMMON AREA REFERRED TO HEREIN AS TO
EACH OF SAID LOTS SHALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN
OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, STATE OF CALIFORNIA.
EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND PORTION
THEREOF WHICH MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA.
PARCEL E:
A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG, ACROSS
AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS:
A STRIP OF LAND 7.50 FEET, LYING WITHIN SAID LOT 2, THE WESTERLY, NORTHERLY
AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE
BOUNDARY LINE OF SAID LOT NORTH 30° 32' 30" EAST, 325.37 FEET; THENCE SOUTH
64° 47' 19" EAST, 56.45 FEET; THENCE SOUTH 25° 40' 47'' EAST 219.40 FEET; THENCE
SOUTH 67° 11' 43" EAST, 16.00 FEET; THENCE NORTH 57° 33' 00" EAST, 85.00 FEET.
(
ALSO THE SOUTHEASTERLY 75.00 FEET OF LOT 3.
SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE OWNERS OF
LOT 1 OF CARLSBAD TRACT 81 -41, AS PER MAP THEREOF NO. 10725, FILED IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA.
THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS SAID EASEMENT SHALL BE
APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH
THE COVENANTS, CONDITIONS AND RESTRICTIONS.
NOTE: SAID COVENANTS, CONDITIONS AND RESTRICTIONS WERE RECORDED
SEPTEMBER 21, 1983 AS FILE NO. 83-337702 OF OFFICIAL RECORDS.
EXHIBITB
Fmm of Owner Occupancy Certification
To: City of Carlsbad ("City")
From: ~ I I I I. n1 D D 5 [name of owner(s)] ( "Owner(s) ")
Address of Home: 2?i&,~ Ho-sp Wa,~ ~'-3L/ ( "Prope1ty ")
C, f1 rl s bt1-~ C q ~ O D 8
Date: N D v . / q rJ..D O 4
By signature below, I -Ji 11 I. vY) o D 1 [insert name or names of Owner] hereby
ce1tify to the City under penalty of pe1jury that I/we occupy the home located at
23 ft,J. Hos p Y\lo.y -t1-:;_,2,L/,. {!>a,y-f~hot\ OB q~r,g [insert address] (the "Home") as my/our
principal place of residence and that I/we have occupied the Home for _____ (_)
[insert number] months of the calendar year ______ [insert previous calendar year].
Attached to this letter is a copy of ____ [insert utility bill or driver's license] showing
my place of residence.
This Owner Occupancy Ce1tification is signed on }J p-,Je ro bg..,c 19._, 20bt/,, under penalty of
perJury.
By: ___________ _
Owner [ type name]
By: _____________ _
Owner [type name]
Due Date: ____ of each calendar year.
Attach copy of utility bill or driver's license showing address of Home.
1010\15\172084.3 B-1
12/10/03
EXHIBIT C
F01m of Owner's Notice oflntent to Transfer
To : City of Carlsbad ( "City ")
From: ___________ [name of owne1·(s)] ( "Owner(s) ")
Address of Home: ____________ ( "Prope1ty ")
Date:
Please be notified pursuant to Section 7 of the Resale Restriction Agreement and Option to
Purchase between Owner and City dated ______ , that the Owner intends to transfer the
Prope1ty listed above.
A The following information is provided to the City pursuant to Section 7 of the Resale
Agreement:
1. Address of Prope1ty:
2. Date Owner purchased Prope1ty:
3. Purchase Price paid by Owner when Prope1ty was purchased:
4. Date Owner intends to vacate Prope1ty:
5. Date Prope1ty will be placed on market:
6. Name and phone number of person for City to contact to schedule inspection:
and -----------------(name) (phone number)
B. As required by Section 8 of the Resale Agreement, the following the HUD-1 Settlement
Statement from Owner's purchase of the prope1ty is attached.
C. I have not yet listed the Prope1ty for sale with a multiple listing service, or contacted a
real estate broker or financial institution. I agree to prepare the Prope1ty for sale by:
1. obtaining a pest control rep01t within thi1ty (30) days of the date of this notice,
2. repairing all damage noted in the pest rep01t within the sooner of: (i) sixty (60)
days from the date of this notice, or (ii) two (2) weeks prior to close of escrow or the transfer of
the Prope1ty,
1010\ 15\172084.3 C-1
12/10/03
3. allowing the City or its designee to inspect the Prope1iy within thi1iy (30) days of
this notice,
4. maintaining utility connections until the Prope1ty is transfe1Ted,
5. permitting a walk through by the City prior to close of escrow or the transfer.
This Owner's Notice oflntent to Transfer is ce1iified by Owner to be true and coITect and
is signed on _____________ [insert date] under penalty ofpe1jury.
By: --------------Owner
By: ---------------Owner
1010\15\172084.3 C-2
12/10/03
EXHIBIT D
F01m of Owner Acknowledgement of City Response Notice
Name:
Address of Prope1ty:
Date:
I, __________ [insert name] hereby acknowledge that I received the City
Response Notice (as described in Section 10 of the Resale Agreement on _____ [insert
date].
By: _______________ _
1010\15\172084.3 D-1
12/10/03
To:
From:
EXHIBITE
Form of Owner Request for City Subordination
to Refinanced First Lender Loan
City of Carlsbad ( "City")
Prope1ty Address:
_________________ ("Owner")
_________________ ( "Prope1ty ")
Date:
The Owner hereby requests the City to approve the Owner's refinance of the existing first
mmtgage on the Prope1ty. The Owner provides the following information which it ce1tifies to be
true and c01Tect:
1. Original Purchase Price of Prope1ty: $ _______ _
2. Original principal balance of existing First Lender Loan: $ _______ _
3. Interest rate of existing First Lender Loan: $ ______ _
4. Outstanding principal balance of existing First
Lender Loan: $ -------
5. Monthly payments due on existing First Lender Loan $ -------
6. Principal amount of proposed new First Lender Loan: $ ______ _
7. Interest rate of Proposed new First Lender Loan: $ -------
8. Monthly payments to be due on new First Lender Loan: $ ______ _
The Owner hereby certifies the above information is true and c01Tect and this Owner Request is
executed under penalty ofpe1jury on _________ [insert date].
By: ___________________ _
Owner
By: ___________________ _
Owner
1010\151172084.3 E-1
12/10/03