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HomeMy WebLinkAboutCT 98-14-03; Chang, Angela/United Titled Co; 2004-0839470; PropertyDOC # 2004-0839470 RECORDING REQUESTED BY: RECORDING REQUESTED BY UNITED T iBLE COMPANY WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office Attn: Cityclerk 1200 Carlsbad Village Drive Carlsbad. California 92008 * 4F73.7 L -- 4i, t iiiiiii t iii i t iii iiiii iiii t iiiii iiii t iiiii iii t i iiiii iii t I iiiiiiiii iiii SEP 02,2004 11:ll AM 0 FFI ClAL RECORDS SAN DlEGO COUNTY RECORDER'S OFFICE GREGORY J. SMITH, COUNTY RECORDER FEES: 0.00 WKfS: 2 PAGES: 12 DA: 1 I111111 Ulll ll1111111111111 Ill11 11111 Ill11 Ill11 Rlll Ill11 Ill11 11111 1111 1111 1111 (Space above for Recorder's Use) NOTE TO BORROWER: THIS DEED OF TRUST CONTAINS u PROVISIONS PROHIBITING ASSUMPTIONS DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of this 31s~ , 200% among Angela Chann. an unmarried ("Trustee"), and the City of Carlsbad, a municipal corporation (the "City"), as beneficiary. wornan -United Title Company The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the property located in the City of Carlsbad, State of California, described in the attached Exhibit A (the "Property"). TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and TOGETHER with all articles of personal property 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 Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or hrnished 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 articles 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 Property, is herein referred to as the "Security"; 1 121 612003 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 Dollars ($ 120,000 ) the amount of -one hundred twenty thousand executed by the Borrower 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 Borrower herein contained; and TO SECURE to the City the performance of the covenants and agreements of Borrower contained in that certain Resale Restriction Agreement and Option to Purchase executed by and between the Borrower 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 Borrower to City; TO SECURE the performance of any obligations of Borrower in any other agreements with respect to the financing of the Property 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. Borrower's Estate. That the Borrower 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 executed by the Borrower in connection with a loan made to the Borrower by flfih./ IY]ovf+@or its successors and assigns (the "First Lender"), dated @q 4trsf 30, 2002, executed by the' Borrower in favor of First Lender, and recorded in the Cohty of San Diego on , 200- and assigned Recorder's Serial No. (the "First Lender Deed of Trust"), securing a promissory note executed by the Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase of the Property; and (b) the Resale Agreement. The Borrower agrees to warrant 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 term "First Lender" shall include all successors and assigns of the First Lender.) 2. Rmavment of Loan. The Borrower 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 certain conditions: No AssumDtion of Note. The Borrower acknowledges that this Note is given in connection with the purchase of property (the "Residence") as part of a program of the City to assist in the purchase of homes by lower 2 12/16/2003 income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. 3. First Lender Loan. The Borrower will observe and perform 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 Borrower will observe and perform all of the covenants and agreements of the Resale Agreement. 5. Charges; Liens. The Borrower 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 Borrower making any payment, when due, directly to the payee thereof The Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and in the event the Borrower makes payment directly, the Borrower will promptly discharge any lien which has priority over this Deed of Trust; provided, that the Borrower 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 Borrower 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 part thereof. 6. Insurance. The Borrower 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 necessary to prevent the Borrower fiom becoming a co-insurer under the terms of the policy. The insurance carrier providing this insurance shall be licensed to do business in the State of California and be chosen by the Borrower 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 Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing and Urban Development, the United States Department 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 mortgagee 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 Borrower shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof of loss if not made promptly by the Borrower. The City shall receive thirty (30) days advance notice of cancellation of any insurance policies required under this section. 3 12/16/2003 Unless the City and the Borrower otherwise 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 Borrower. If the Security is abandoned by the Borrower, or if the Borrower fails to respond to the City, or its designated agent, within thirty (30) days fiom the date notice is mailed by either of them to the Borrower that the insurance carrier 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 Borrower 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 Borrower 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 Borrower has not cured such condition within thirty (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 perform 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 Borrower fails to perform 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 Property, eminent domain, insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower, 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 Borrower secured by this Deed of Trust. Unless the Borrower and City agree in writing to other terms of payment, such amount will be payable upon notice from the City to the Borrower requesting payment thereof, and will bear interest from the date of disbursement at the lesser of ten percent (10%) or the highest rate permissible under applicable law. Nothing contained in this paragraph will require the City to incur any expense or take any action hereunder. 4 12/16/2003 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 Borrower 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. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. "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 formaldehyde, and radioactive materials. "Environmental Law" shall mean all federal and state of California laws that relate to health, safety or environmental protection. Borrower shall promptly give City written notice of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower 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 concurrently, independently or successively. 13. Successors and Assinns 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 Borrower subject to the provisions of this Deed of Trust. 14. be joint and several. Joint and Several Liability. All covenants and agreements of the Borrower shall 5 1 2/16/2003 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 certified 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: At the address of the Residence. To the City: City of Carlsbad Housing and Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Attn: Housing and Redevelopment Director The parties may subsequently change addresses by providing written notice of the change in address to the other parties 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 Nonliabilitv for Negligence, Loss, or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and the City is solely that of an Borrower and the administrators of City inclusionary housing program, and that the City does not undertake or assume any responsibility for or duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the Security or any other matter. The City owes no duty of care to protect Borrower against negligent, faulty, inadequate or defective building or construction or any condition of the Security and Borrower agrees that neither Borrower, or Borrower’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 fi-om any condition of the Security and will hold City harmless from any liability, loss or damage for these things. 6 12/16/2003 19. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless fiom 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. Borrower's failure to perform 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 Borrower's representations or warranties to be true and correct. 20. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower 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 forth in Section 14 of this Deed of Trust, notice to the Borrower specifying: (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 as set forth 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 Borrower of the Borrower's right to reinstate after acceleration and the right to bring a court action to assert the nonexistence of default or any other defense of the Borrower 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) declare all of the sums secured by this Deed of Trust to be immediately due and payable without further 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 court, and without regard to the adequacy of its security, enter upon the Security and take possession thereof (or any part 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 necessary or desirable to preserve the value or marketability of the Security, or part thereof or interest therein, increase the income therefi-om 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 occurrence 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 mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written declaration 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 Erom time to time; or (e) exercise all other rights and remedies provided herein, in the instruments by which the Borrower acquires title to any Security, or in any other document or agreement now or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or provided by law. 7 12/16/2003 The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. 21 Acceleration. Upon the occurrence 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. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums secured by this Deed of Trust, the Borrower 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 occurred; (b) the Borrower cures all breaches of any other covenants or agreements of the Borrower contained in the Note, Resale Agreement or this Deed of Trust; (c) the Borrower pays all reasonable expenses incurred by City and the Trustee in enforcing the covenants and agreements of the Borrower contained in the Note, Resale Agreement or ths 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 Borrower 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 Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the obligations secured hereby will remain in full force and effect as if no acceleration had occurred. 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 surrender this Deed of Trust and the Note to the Trustee. The Trustee will reconvey the Security without warranty 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 conferred upon the Trustee herein and by applicable law. 25. Subordination to First Lender Mortgage. 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 Borrower. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of 8 1Z1612OO3 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 Department of Housing and Urban Development (the "Secretary"), this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed of Trust is assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition of title or assignment to the Secretary 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 fm commitment to complete the cure in the form and substance acceptable to the First Lender. Borrower agrees to record any necessary 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 Borrower has executed this Deed Of Trust as of the date first written above. - (Print Name) I (Print Name) 9 Borrower 12/16/2003 STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. On Aa4M5 f 31 , 200%, before me, -frr v)& LC . K&q If?4J , personally , personally known to me (or pdved to me on the appeared Ad basis of satisfagory evidencu to be the person(s) whose name(s) idare 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 hidheritheir 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. &kiK- STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ) ss. 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. EXHIBIT “A” A CONDOMINIUM COMPRISED OF: PARCEL A: AN UNDIVIDED 1/108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81-41, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 19,1983. EXCEPTING THEREFROM THE FOLLOWING: (A) ALL UNITS AS SHOWN UPON THE GROVE PHASE 1 CONDOMINIUM PLAN 337701 OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF COUNTY OF OF OFFICIAL RECORDS. (“CONDOMINIUM PLAN”) RECORDED SEPTEMBER 21, 1983 AS FILE/PAGE NO. 83- SAN DIEGO AND RE-RECORDED DECEMBER 7, 1983 AS FILE/PAGE NO. 83-444150 (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 334, 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 ON SAID CONDOMINIUM PLAN AS EXCLUSIVE USE AREAS AS APPURTENANT TO PARCELS A AND B ABOVE DESCRIBED. I Page 1 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 SAN DIEGO COUNTY, 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, 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 ANY 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 21 9.40 FEET; THENCE SOUTH 67" 11' 43" EAST 16.00 FEET; THENCE NORTH 57" 33' 00" EAST 85.00 FEET. ALSO THE SOUTHEASTERLY 7.50 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 WITH SAID EASEMENT SHALL BE APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH THE COVENANTS, CONDITIONS AND RESTRICTIONS. - . . . . . .