Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
Boess, Nicholas and Tomoko; 2019-08-20;
Recording Requested by: 'FNTG Builder Services -Nb RECORDING REQUESTED BY: FNTG Builder Services Escrow No.: SHK10078-006-AM4 Title No.: SHK10078-006KC WHEN RECORDED MAIL DOCUMENT AND TAX STATEMENT TO: City of Carlsbad City-Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 APN: 213-262-06-00 wop f Exempt from fee per GC 27388.1 (a) (2); recorded concurrently in connection with a transfer subject to the impositjon of documentary transfer tax ~ --· ·. DOC# 2019-0433434 111111111111 lllll 1111111111111111111111111 llllllllll 111111111111111111 Sep 30, 2019 03:42 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) PAGES: 14 SPACE ABOVE THIS LINE FOR RECORDER'S USE The undersigned declares exemption under the following: Exempt from fee per GC 27383; No fee shall be charged by the recorder for services rendered to the State, to any municipality, county in the State or other political subdivision thereof, except for making a copy of a paper or record. DEED OF TRUST AND SECURITY AGREEMENT Title Page of Document to Record REC00059 (OSI Rev. 4/5/18) DOCUMENT TITLE Escrow No.: SHK10078-006-AM4 Recording Requested by: FNTG Builder Services · S+rK 100?&-cm!Pmy'Jzc... Recording requested by and when recorded mail to: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 ~ No fee for recording pursuant to~ Government Code Section 27383 DEED OF TRUST AND SECURITY AGREEMENT (City of Carlsbad Homebuyer Program) Note to Borrower: This Deed of Trust contains provisions prohibiting assumption THIS DEED OF TRUST AND SECURITY AGREEMENT (the "Deed of Trust") is made as of this ::i..oih day of ~u.s't , 20lJ_, among Nicholas Walter Erhardt Boess and Tomoko Boess, Husband Wife as Joint Tenants ("Borrower(s)"), as Trustor, and Chicago Title ("Trustee"), as trustee, and the City of Carlsbad, a municipal corporation ("City"), as beneficiary. 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 real 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 real property described in Exhibit A, 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 (collectively, the "Property"); 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 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 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 1010\17\2045536.2 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 Three Hundred Fifty One Thousand Dollars ($351,000) executed by the Borrower in favor of the City as of the date of this Deed of Trust ("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; TO SECURE to the City the performance of the covenants and agreements of Borrower contained in that certain Declaration of Restrictive Covenants Regarding Restrictions on Transfer of Property, Occupancy Restrictions, Refinancing Restrictions and Option to Purchase executed by and between the Borrower and the City of even date herewith and recorded against the Property on, or about, the date this Deed of Trust is recorded as a lien against the Property (the" Resale Restriction Agreement") and to secure the payment of Excess Sales Proceeds (as defined in the Resale Restriction Agreement) and Unauthorized Rental Proceeds (as defined in the Resale Restriction Agreement) that may become due by Borrower to City; and 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 CrossCountry Mortgage, Inc. or its successors and assigns (the "First Lender"), datedSteiCMbtr 12-, 20 tJ., executed by the Borrower in favor of First Lender, and recorded in the County of San Diego onCOr)lc.uYtn-Hj, 20_, and assigned Recorder's Serial No. l.C)b( vUrln-t1 j ("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 Restriction 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. Repayment of Loan; Prohibition on Assumptions. The Borrower will promptly repay, when due, the principal, interest and other sums required by the Note and Resale Restriction Agreement including all principal and interest on the Homebuyer Loan (as defined in the Note) and the Excess Sales Proceeds and Unauthorized Rental Proceeds due under the Resale Restriction Agreement. Among other things, the Note contains the following provisions concerning repayment of the loan under certain conditions: 2 l0I0\l 712045536.2 Limitations on Assumption of Note. The Borrower acknowledges that this Note is given in connection with the purchase of the Property as part of a program of the City to assist in the purchase of homes by low and moderate income persons. Consequently, this Note is only assumable by Eligible Purchasers (as defined in the Resale Restriction Agreement). This Note is due in full upon all other Transfers. In the event this Note is assumed by an Eligible Purchaser, the Eligible Purchaser shall execute a new note, which shall be in an amount equal to the principal and Contingent Interest owed by Borrower, a new Deed of Trust and a new Resale Restriction Agreement with a restarted term in forms approved by the City. 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 Restriction Agreement. The Borrower will observe and perform all of the covenants and agreements of the Resale Restriction Agreement. Among other things, the Resale Restriction Agreement requires the Borrower to utilize the Property as the Borrower's principal residence, and restricts: (i) the Borrower's ability to transfer the Property, or the obligations under the Note; (ii) the Borrower's ability to refinance the First Lender Note; and (iii) the Borrower's ability to use the Property as security for additional loans or financing. The Borrower's failure to comply with the requirements of the Resale Restriction Agreement constitutes a default under this Deed of Trust. 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 from 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 3 1010\J 7\2045536.2 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 any successor 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 ofihe 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 ten (10) days advance notice of cancellation of any insurance policies required under this section. 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 from 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 Restriction 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 4 I 010\17\2045536.2 the First Lender Deed of Trust, the First Lender Note, 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 often 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. 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 5 1010\1712045536.2 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 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 Borrower subject to the provisions of this Deed of Trust. 14. Joint and Several Liability. All covenants and agreements of the Borrower shall be joint and several. 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: [ Address of the Property] To the City: City of Carlsbad Housing and Neighborhood Services Department 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Housing and Neighborhood Services 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. 16. Controlling Law. This Deed of Trust shall be construed in accordance with and be governed by the laws of the State of California. 17. Invalid Provisions. If any one or more of the provisions contained in this Deed of Trust, Resale Restriction 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 Restriction 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 Restriction Agreement or the Note. 6 1010\17\2045536.2 18. 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. 19. Nonliability for Negligence. Loss. or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and the City is solely that of a borrower and the administrator of a municipal 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 from any condition of the Security and will hold City harmless from any liability, loss or damage for these things. 20. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, costs, expenses 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. This provision shall survive the term of this Agreement. 21. Default: Remedies. Upon the Borrower's breach of any covenant or agreement of the Borrower in the Note, Resale Restriction 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 15 of this Deed of Trust, notice to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action r~quired 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 15 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 7 1010117\2045536.2 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 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 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 from 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. 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. 22. Acceleration. Upon the occurrence of a default under the Note, the Resale Restriction 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 Restriction 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. 23. 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 Restriction 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 Restriction 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 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 8 1010\17\2045536.2 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. 24. 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. 25. 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. 26. 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 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 firm 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. Remainder of Page Left Intentionally Blank 9 1010\17\2045536.2 IN WITNESS WHEREOF, the B01Tower has executed this Deed of Trust as of the date first written above. Note to Borrower: This Deed of Trust contains provisions proltibiting assumption (Bonower Signature) ,V,'c,VLO {({5 Wet l~ {;Y\'\t,l,"~ {S~ (Print Name) (Borrower Signature) (Print Name) (Proper Notarial Ack11owledgeme11t of Execution by Borrower(s) Must Be Attached) 10 l010\1712045536.2 CALIFO-RNlA. ALL-PURPOSE ACKNOWLEDGMENT CIVIL-CODE§. 1j89 A not-ary· public or other. officer completing this certificate verifies only, the identity of the individuaf who signed the tiocumentto which this-certificate is attached, and not the trutlmilP.ess, accuracy,_or_validity of that document State of California C ty 1 SAN DIEGO oun o--~----------- On q ID/JD/CJ before me, J. COL'I'ER,_ NOTARY PUBLIC Date . , __ · 1 :-. n , HemJnswt !,-ne -and Trtle of. the Offic,r personally apf)eared A) I CKV ~ LJ ~ flc ?~r &JlJ.S C<1£t ~ J, ,, f) " Name(s) of Signer(s) __l_{)J((]DW IXJ€.£S --I who proved to me on tr.e basis of satisfactory -evidence to be· the -persat-rose nar,:ie(s) ic::~ subscn500 the wlthin instrument and acknowledgeet · · that he/she~ ey xecuted the sam~ his/her: he' authorized capacityQes), and that by l:i!s/her heir ignature(s)_on th · strument the person(s), or the en ity upon behalf of which the person(s) acted, e .ed the-instrument·· · · · · . ············i • " . J. COLTER J ;~ Notary Public -California z ;; ::fe _ :t}•;.Ii· San Diego County ! r ~~;tJ Commission II 2290309 ~,. My Comr:1. Expires Jun 23, 2023 Place Notary Seal Above · I certify underPENAL TY OF-PERJURY under tbeJaws of the State. of California that the foregoing=f)ar-agraptr is true and correct. WITNESS my and -and ffic al seal. Signature of Notary Public ----------------OPTIONAL _______________ _ Though-this section is optional,_completing this information can-deter-altera.tirm.of the document or fra.1:1du/ent reattachment of this form to-an-unintended docYment Description of-Attached Document Title or Type of Document: _____________ Document Date:-_______ _ Number of Pages: Signe~s) Other Than Named Above: ___________ _ Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ____________ _ D Corporate Officer -Trtle(s): ______ _ □ Corporate Officer -litte(s}: ______ _ D Partner -D Limited D General □ Partner -□ Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other. _____________ _ D Other. ______________ _ .Signer Is Representing: _________ _ Signer Is Representing: ________ _ ©2014 National Notary Association· www.NationalNotary.org · 1-800-US NOTARY (1-800-876-6827} Item #5907 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Address: Assessor Parcel No. 1010\17\2045536.2 Escrow No.: SHK10078-006-AM4 EXHIBIT "A" Legal Description A CONDOMINIUM COMPRISED OF: PARCEL 1: AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO (COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO. 14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP"). PARCEL 2: RESIDENTIAL UNIT NO. 78, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN; PARCEL 3: AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY, DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY, THE "DECLARATION"). PARCEL 4: A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D, AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON lj4':'f /2.6\0\. AS DOCUMENT NO.20\'1-039'0'-{ 30, WHICH EASEMENT IS APPURTENANT O THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE. PARCEL 5: A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE. ,, Recording Requested by: f:NTG Builder Services R~CORDING REQUESTED BY: FNTG Builder Services Escrow No.: SHK10078-006-AM4 Title No.: SHK10078-006KC WHEN RECORDED MAIL DOCUMENT AND . TAX STATEMENT TO: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 APN: 213-262-06-00 wop _ Exempt from fee per GC 27388.1 (a) (2); recorded concurrently in connection with a transfer subject to the imposition of documentary transfer tax DOC# 2019-0433435 11111111111111111111111111111111 IIIII IIIII IIIII IIIII IIIII IIIII IIII IIII Sep 30, 2019 03:42 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $133.00 (S82 Atkins: $0.00) PCOR: N/A . PAGES: 36 SPACE ABOVE THIS LINE FOR RECORDER'S USE The undersigned declares exemption under the following: Exempt from fee per GC 27383; No fee shall be charged by the recorder for services rendered to the State, to any municipality, county in the State or other political subdivision thereof, except for making a copy of a paper or record. DECLARATION OF RESTRICTIVE COVENANTS REGARDING RESTRICTIONS ON TRANSFER OF PROPERTY, OCCUPANCY RESTRICTIONS, REFINANCING RESTRICTIONS, AND OPTION TO PURCHASE Title Page of Document to Record REC00059 (OSI Rev. 4/5/18) DOCUMENT TITLE Escrow No.: SHK10078-006-AM4 Recording Requested by: , FNTG Builder Services Sl-l l<.Jo v? g-lJO~ ftf(I, I /q_. Recording requested by and when recorded mail to: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 '¾.No fee for recording pursuant to -,\, Government Code Section 27383 DECLARATION OF RESTRICTIVE COVENANTS REGARDING RESTRICTIONS ON TRANSFER OF PROPERTY, OCCUPANCY RESTRICTIONS, REFINANCING RESTRICTIONS, AND OPTION TO PURCHASE (City of Carlsbad Homebuyer Program) Owner: Nicholas Walter Erhardt Boess and Tomoko Boess Address of Property: 6026 Colt Place #105. Carlsbad. CA 92009 This Declaration of Restrictive Covenants Regarding Restrictions on Transfer of Property, Occupancy Restrictions, Refinancing Restrictions and OJtion to Purchase ("Resale Restriction Agreement") is entered into as of this ~ day of ~~,e/L · , 20Jj_, by and between the City of Carlsbad a municipal corporatkm("City"), and Nicholas Walter Erhardt Boess and Tomoko Boess, Husband and Wife as Joint Tenants ("Owner"). RECITALS A. The City has developed a second mortgage program designed to assist qualified low or moderate income households purchase their homes located within the City of Carlsbad ("Homebuyer Program"). B. In connection with the Homebuyer Program and in fulfillment of its inclusionary obligation pursuant to an Affordable Housing Agreement ("Affordable Housing Agreement") between Shea Homes Limited Partnership, a California limited partnership ("Developer") and the City dated November 11, 2017, the Developer made a loan ("Homebuyer Loan") in the amount of Three Hundred Fifty One Thousand Dollars ($351,000) to allow for the purchase of a single-family dwelling by a low income household located in Carlsbad, California on that certain real property and more particularly described in Exhibit A ("Property"), and then assigned the Home buyer Loan to the City. C. As used herein, the term "Property" includes both the real property and all improvements now or hereafter erected thereon (including, but not limited to the residential dwelling unit), and all easements, rights, appurtenances, and all fixtures now or hereafter attached thereto. 1010/17/2032990.2 D. The "Original Affordable Purchase Price" of the Property is Three Hundred Eleven Thousand Dollars ($311,000). The Original Affordable Purchase Price is the effective price of the Residence paid by the Owner. The actual price of the Residence is equal to the Original Affordable Purchase Plice plus the amount of the Promissory Note ("Full Purchase Price"). Owner is a low income household. E. The Loan is evidenced by a promissory note in the amount of the Loan ("City Note"). This Agreement and the City Note shall be secured by a deed of trust ("City Deed of Trust") subordinate to the lien of First Lender Deed of Trust. F. The Homebuyer Loan is evidenced by a promissory note in the amount of the Loan ("City Note"). This Agreement and the City Note shall be secured by a deed of trust ("City Deed ofTrnst") subordinate to the lien of First Lender Deed of Trust. G. The purpose of this Agreement is to place resale controls on the Prope1ty, to provide the City an option to purchase the Property at a restricted price, and to ensure that the Owner complies with the Homebuyer Program requirements. H. This Agreement and the City Note require repayment of the Homebuyer Loan plus contingent interest and, in certain instances, payment of excess proceeds of sale. This Agreement will remain in full effect as an encumbrance on the Property after any prepayment of the City Note by the Owner. 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) "Affordable Sales Price" -Section 14A(l). (2) "Agreement" -first sentence of the Agreement on page 1. (3) "City" -first sentence of the Agreement on page 1. (4) "City Deed of Trust" -Recital F. (5) "City Designated Purchaser" -Section 12B. (6) "City Note'' -Recital F. (7) "City Option" -Section 12A. (8) "City Response Notice" -Section l 0. 2 1010/17/2032990.2 1010/17/2032990.2 (9) "Default" -Section 18 (10) "Eligible Purchaser" Section 158. (11) "Excess Sales Proceeds" -Section 16. (12) "Extended Period" -1 0C. (13) "Fair Market Value" -Section 14B. (14) "First Lender" -Recital E. (15) "first Lender Deed of Trust" or "First Mortgage"-Recital E. (16) "First Lender Loan" -Recital E. (17) "Full Purchase Price" -Recital D. (18) "Full Sales Price" -Section 14A. (19) "Homebuyer Loan" -Recital B. (20) "HUD" -Section 30. (21) "Initial Period" -10B. (22) "Market Purchaser" -Section 1 0C. (23) "Maximum Restricted Resale Price" -Section 14. (24) "Median Income" -Section 14A. (25) "Official Records" -Recital E. (26) "Original Affordable Purchase Price" -Recital D. (27) "Owner" -first sentence of the Agreement on page 1. (28) "Owner's Notice of Intent to Transfer" -Section 8. (29) "Property" -Recital B. (30) "Proposed Purchaser" -Section 1 SA. (31) "Transfer" -Section 7. 3 (32) "Unauthorized Rental Proceeds" -Section 4. B. The following Exhibits are attached to this Agreement: (1) Exhibit A: Legal Description of Property (2) Exhibit B: F01m of Owner Occupancy Certification (3) Exhibit C: Form of Owner's Notice of Intent to Transfer (4) Exhibit D: Form of City Response Notice (5) Exhibit E: Form of Owner Acknowledgement of City Response Notice (6) Exhibit F: Form of Owner Request for City Subordination to Refinanced First Lender Loan 2. OWNER CERTIFICATIONS The Owner certifies that: (i) the financial and other information previously provided in order to qualify to purchase the Property is true and correct as of the date first written above; (ii) the Owner is an Eligible Purchaser; (iii) the Owner has disclosed all individuals that shall reside at the Property; and (iv) the Owner shall occupy the Property as the Owner's principal place of residence. 3. OCCUPANCY OF PROPERTY The Owner shall occupy the Property as the Owner's principal place of residence within sixty (60) days after the close of escrow on the Homebuyer Loan. Failure by the Owner to occupy the Property 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 Property if the Owner is residing at the Property for at least ten ( 10) months out of each calendar year. The Owner shall provide an annual written certification in the form shown in the attached Exhibit B, to the City that the Owner is occupying the Property as his or her principal place of residence, and listing all occupants residing at the Property. No later than ten (10) days after receipt of the City's written request, the Owner shall provide any additional information and documents which the City requests including but not limited to tax returns and bank statements, which may evidence whether the Owner is occupying the Property. Failure to provide any additional information or documentation requested shall constitute a Default under this Agreement. 4. NO LEASING OF PROPERTY The Owner shall not lease all, or any portion of, the Property to another party. Any lease, sublease, or any other renting of the Property to a third-party is prohibited and shall be a Default under this Agreement and the City Deed of Trust. For the avoidance of doubt, the City and the 4 1010/17/2032990.2 Owner agree and acknowledge that: (i) the Property (or any portion of the Property) is prohibited from being used a "short-term vacation rental" (as such term is defined in Chapter 5.60 of the City of Carlsbad Municipal Code, as may be amended from time to time); (ii) no portion of the Property may be used for tourist or transient use, or any other short-term rental of the Property; and (iii) listing the Property on any "hosting platform" (as defined in California Business & Professions Code 22590, as may be amended from time to time), including, but not limited to any Internet-based "hosting platform", such as "airbnb.com", or any similar service, is prohibited. All proceeds derived from any leasing, subleasing, or any other activity prohibited by this Section are defined as "Unauthorized Rental Proceeds". In addition to all other available rights and remedies set forth in this Agreement, in the event of violation of this Section, the Owner shall pay to the City all Unauthorized Rental Proceeds in accordance with Section 19. 5. HOMEBUYER EDUCATION CLASS The Owner shall attend all sessions of a first-time homebuyer education class offered by Clearpoint Credit Counseling Solutions. 6. MAINTENANCE AND INSURANCE PROCEEDS A. The Owner shall maintain the Property, including landscaping, in good repair and in a neat, clean and orderly condition and will not commit waste or pe1mit deterioration of the Property. Failure by the Owner to maintain the Property shall constitute a Default under this Agreement for which the City may exercise the City Option to purchase the Property 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 Property (adjusted every five (5) years by appraisal, if requested by City), naming the City as an additional insured. Additional insurance requirements are set forth in Section 6 of the City Deed of Trust. 7. TRANSFER AND SALE RESTRICTIONS Any Transfer of the Property 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 Prope1ty, 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 Property is transferred and Owner retains title. 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 Property; (iii) between spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse of Owner by devise or inheritance following the death of Owner; (v) by Owner into an inter vivas revocable trnst in which Owner is the Trnstor; or (vi) refinance of the First Mortgage 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 Property as his or her principal place of residence ( except where the transfer occurs 5 1010/17/2032990.2 pursuant to subsection (iii) or (iv) above, in which event the transferee shall owner-occupy the Property and affamatively 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 Property, the Owner shall promptly give the City written notice of such intent (the "Owner's Notice of Intent to Transfer") in the form shown in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice of Intent 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 determine the Maximum Restricted Resale Price of the Property, including the following information: (1) the address of the Prope11y; (2) the date of purchase of the Property by the Owner; (3) the Original Affordable Purchase Price of the Property; (4) the Full Purchase Price of the Property (which is the Original Affordable Purchase Price plus the original amount of the Homebuyer Loan). (5) a copy of the HUD-1 Settlement Statement or equivalent document from the close of escrow on the Owner's purchase of the Property; (6) the date on which Owner intends to vacate Property; (7) the date the Property will be placed on the market; and (8) the name and phone number of the person to contact to schedule inspection of the Property by the City. 9. OWNER PREPARATION OF PROPERTY FOR SALE A. The Owner may not wish to contract with a real estate broker to sell the Property until the Owner has received 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 Property pursuant to Section 12 below. B. Following delivery to the City of the Owner's Notice oflntent to Transfer, the Owner shall prepare the Property for sale, as follows: 6 1010/17/2032990.2 (1) within thirty (30) days of delivery of the Owner1s Notice oflntent to Transfer, the Owner shall obtain and deliver to the City a cun-ent written report of inspection of the Property by a licensed structural pest control operator; (2) within the sooner of: (a) sixty (60) days from the date of delivery of the Owner1s Notice oflntent to Transfer; or (b) prior to close of escrow on the Transfer, the Owner shall repair all damage noted in the pest report including damage caused by infestation or infection by wood-destroying pests; (3) within thirty (30) days of the date of the Owner1s Notice oflntent to Transfer, the Owner shall allow the City to inspect the Property to determine its physical condition; (4) if the Property is vacant, the Owner shall maintain utility connections until the close of escrow on the Transfer; and (5) in the event of purchase of the Property by the City or City Designated Purchaser, the Owner shall permit a final walk-through of the Property 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 OWNER1S NOTICE OF INTENDED TRANSFER City shall respond in writing (the 11City Response Notice'1) to the Owner's Notice oflntent to Transfer. The form of City Response Notice is attached as Exhibit D. 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 Property. The City Response Notice shall be sent within thirty (30) days of City receipt of Owner's Notice of Intent 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 Period: 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 Property. 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 Period"), the City Response Notice shall inform the Owner that the Owner may proceed to sell the Property to an Eligible Purchaser at a price not to exceed the Maximum Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set forth 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 certifications required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may receive for the Property, calculated by the City pursuant to Section 14 below; (4) whether 7 IO I 0/! 7 /2032990.2 Homebuyer Program assistance from the City may be available to an Eligible Purchaser; and (5) Owner's repayment obligation as required by Section 13; and C. Extended Period 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 Property, and the Owner has sent the Notice oflntent to Transfer between the fifteenth (15th) year of the Term and the end of the Term, (the "Extended Period"), the City Response Notice shall inform Owner that Owner may proceed to sell the Property to a third party at any income level (the "Market Purchaser") for an unrestricted price. The City Response Notice shall also inform Owner of Owner's repayment obligation as required by Section 13. 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 form shown in the attached Exhibit E, that he/she has received the City Response Notice and still intends to Transfer the Property. 12. CITY PURCHASE OPTION A. The Owner agrees that if the Owner decides to Transfer the Property, the City shall have the option to purchase the Property 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 up 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 Property. 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 Property, the City or the City Designated Purchaser shall purchase the Property within ninety (90) days of the date of the City Response Notice and title shall be delivered by the Owner to the City by grant deed free and clear of any mortgage or other liens, unless approved in writing by the City. 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 referred 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 Property by the City or a City Designated Purchaser, the Owner shall permit a final walk-through of the Prope1ty by the City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the Transfer. 8 1010/17/2032990.2 13. REPAYMENT OF CITY NOTE Upon any Transfer of the Property, the outstanding principal and interest due under the City Note shall be repaid pursuant to the City Note unless: (i) such principal and interest is assumed by an Eligible Purchaser in accordance with Section 9 of the City Note; or (ii) the City exercises the City Option to purchase the Prope1ty, in which event 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 City Note. 14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE The maximum sales price that the Owner shall receive from the resale of the Property to the City or City Designated Purchaser, or from other sale or Transfer by the Owner when the Owner sends the Notice oflntent to Transfer during the Initial Period (the "Maximum Restricted Resale Price") shall be the Full Sales Price or the Fair Market Value, whichever is less. A. Full Sales Price. (1) The Full Sales Price of the Property means: (a) the Affordable Sales Price; plus (b) the principal and contingent interest then due on the City Note. The Affordable Sales Price means the Original Affordable Purchase Price, as set forth in Recital D to this Agreement, increased by the percentage of increase in the Median Income from the date of the original purchase of the Property 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 Department of Housing and Community Development ("HCD"), or, in the event such income dete1mination 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 yearly income in San Diego County. As of the date of Owner's purchase of the Property, the Median Income for a household of four persons is Eighty Six Thousand Three Hundred Dollars ($86,300). (2) The Affordable Sales Price shall include a downward adjustment, where applicable, in an amount necessary to repair any violations of applicable building, plumbing, electric, fire or housing codes or any other provisions of the City of Carlsbad Building Code, as well as any other repairs needed to put the Property into a "sellable condition". Items necessary to put a Property into sellable condition shall be dete1mined by the City, and may include cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed appliance repairs and other deferred maintenance repairs. B. Fair Market Value. In ce1tain circumstances it may be necessary to determine 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 but are not limited to: (1) where the parties wish to determine if the Full Sales Price exceeds the Fair Market Value in order to determine the Maximum Restricted Resale P1ice pursuant to this section; (2) where the 9 lOI0/17/2032990.2 pa1ties wish to dete1mine if the sales price of the Property to a Market 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 or upon prepayment. If it is necessary to detennine the Fair Market Value of the Property, it shall be determined by a certified 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 properties 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 Property by mutual agreement in lieu of an appraisal pursuant to this section. 15. SALE BY OWNER DURING INITIAL PERIOD IF CITY DOES NOT EXERCISE OPTION TO PURCHASE In the event the City Response Notice notifies the Owner to proceed to sell the Property to an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the Owner may proceed to sell the Property in compliance with the following requirements: A. Marketing. The Owner shall use bona fide good faith efforts to sell the Property to an Eligible Purchaser in compliance with this section, including listing the Property on the Multiple Listing Service, keeping the Property in an orderly condition, making the Prope1ty available to show to agents and prospective buyers, and providing buyers with Eligible Purchaser requirements, including income qualifications and the City's fonn of disclosure statement summarizing the tenns 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 referred to the City for an eligibility determination. If the Proposed Purchaser qualifies as an Eligible Purchaser the City will also detennine 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 determined 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 certify that he or she will occupy the Property as to his or her principal place of residence throughout his or her ownership. Co-signers are not required to occupy the Property. (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 Property 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. 10 1010/17/2032990.2 C. Maximum Restricted Resale Price. The purchase price for the sale of the Property 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 forth 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. Pursuant to Section 13 of this Agreement and Section 9 of the City Note, the Eligible Purchaser may assume the Homebuyer Loan and the effective purchase price that the Eligible Purchaser will pay for the Property is anticipate to be the Affordable Sales Price. 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 in writing of the Proposed Purchaser. (2) A signed financial statement of the Proposed Purchaser in a form acceptable to the City and any other supporting documentation requested by the City. The financial information shall be used by the City to determine the income eligibility of the Proposed Purchaser. (3) The proposed sales contract and all other related documents which shall set forth all the terms of the sale of the Property. 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 Property, if any, for the services of the Owner, if any, and any credits, allowances or other consideration, if any. (4) A written certification, 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 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 forth in the sales contract and documents submitted to the City. The written certification 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 are made in any documents or certification submitted to the City, the City shall have the right to foreclose on the Property or file an action at law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred 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 harmless 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 restriction 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 11 IO I O/l 7 /2032990.2 required. The recordation of the new deed of trnst and buyer's resale restriction 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 Property, the escrow number, and name, address, and phone number of the escrow officer. (7) Upon the close of the proposed sale, certified copies of the recorded City deed of trnst and buyer's resale restriction agreement, a copy of the final sales contract, settlement statement, escrow instructions, and any other documents which the City may reasonably request. 16. PAYMENT TO CITY OF EXCESS SALES PROCEEDS If the Owner makes a Transfer in violation of this Agreement at any time during the Initial Period or Extended Period, the Owner shall pay the Excess Sales Proceeds to the City. If the Owner Transfers the Prope1ty in violation of this Agreement, the Appreciation Amount (as such term is defined in the City Note) shall be calculated using the Maximum Restricted Resale Price of the Property, rather than the actual sales price. For purposes of this Agreement, "Excess Sales Proceeds" 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 Property. 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 the release and termination of this Agreement, or the reconveyance 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 formula 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 Property at an unrestricted price to a market purchaser (in violation of this Agreement) as the Owner would receive from sale of the Property 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 PERIOD In the event the City Response Notice notifies the Owner to proceed to sell the Property to a Market Purchaser at a price greater than or equal to the Fair Market Value of the Property, the Owner may proceed to sell the Property in compliance with the following requirements: Upon any sale of the Property, 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 perjury, from the Owner and the proposed purchaser in a form acceptable to the City stating the gross sales price of the Property. 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 arty other party, money or other consideration, including personal property, in addition to what is set forth in the sales contract. At close of escrow, Owner shall: (i) submit to the City a copy of the HUD-I Settlement Statement showing the purchase price paid for the Property; and (ii) repay all 12 IO I 0/17/2032990.2 outstanding amounts owed by to Owner to the City pursuant to this Agreement, the City Deed of Trust, and the City Note. Upon such full repayment to the City, the City shall cause this Agreement to be terminated and released from the Property and shall cause the City Deed of Trust to be reconveyed from the Property. 18. DEF AUL TS A. A Default by the Owner is any failure to comply with the requirements of this Agreement, the City Note or the City Deed of Trust, whether by commission or omission which includes, but is not limited to the following: (1) The City determines that the Owner has made a misrepresentation to obtain the benefits of purchase of the Property or in connection with its obligations under this Agreement. (2) The Owner fails to owner occupy the Property, as required pursuant to Section 3 above, and such failure continues following written notice by the City and sixty (60) days opportunity to cure following the date of such notice. (3) The Owner rents all or a po1tion of the Prope1ty in violation of Section 4 above, and such failure continues following written notice by the City and sixty (60) days opp01tunity to cure. (4) The Owner fails to provide information or documents to the City that the City deems necessary to determine Owner's compliance with the requirements of this Agreement. (5) The Owner makes a Transfer in violation of this Agreement. (6) A notice of default is issued under First Lender Loan. (7) A lien is recorded in the Official Records against the Prope1ty other than the First Mortgage. (8) Owner records a deed of trust against the Property in the Official Records, or otherwise places a mo1tgage on the Prope1ty in violation of Section 28 below. (9) 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 further demand, accelerate payments due under the City Note and invoke the power of sale under the City Deed of Trust; 13 IO I 0/1 7 /2032990.2 (2) Apply to a court of competent jurisdiction for such relief at law or in equity as may be appropriate, including, but not limited to specific performance. (3) Declare a Default under the City Note and the City Deed of Trnst and pursue all City remedies under the City Note and the City Deed of Trnst; and (4) Exercise the City Option upon Default as described in Section 21, below. Owner acknowledges that any breach in Owner's performance of Owner's obligations under this Agreement shall cause irreparable harm to the City. Therefore, Owner agrees that the City is entitled to equitable relief in the form of specific performance upon its exercise of the City Option set forth in Section 21, below, and that an award of damages may not be adequate to compensate the City for Owner's failure to perform according to the terms of this Agreement. The City, in its sole and absolute discretion, may elect the appropriate remedy for Owner's default under this Agreement. 19. NOTICE AND CURE Upon a violation of any of the provisions of this Agreement, the City Note or the City Deed ofTrnst, the City shall give written notice to the Owner specifying the nature of the violation and demanding a cure. If the violation is not corrected to the satisfaction of the City within a reasonable period of time, not longer than thirty (30) days from the date the notice is mailed, or within such further time as the City determines is necessary to correct the violation, or if the Owner is in default under the First Mortgage, the City may declare a Default under this Agreement. If the violation is failure to occupy the Property, as set forth in Section 3, or any rental of the Property or any other act prohibited by Section 4, then Owner shall be given sixty (60) days from the date the notice is mailed to correct that violation, and, to the extent applicable, remit all Unauthorized Rental Proceeds to the City before the City may declare a Default. The City shall notify First Lender at the address provided by the First Lender to the City in the manner set fo1ih 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 Trnst. 20. NOTICE TO CITY OF DEF AULT A request for notice of default and any notice of sale under any deed of trust or mortgage with power of sale encumbering the Property shall be recorded by the City in the Official Records 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 provided in Sections 18 and 21. In the event of default and foreclosure under the First Lender Loan or any other mortgage loan on the Property, the City shall have the same right as the Owner to cure defaults and redeem the Property 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 oftrnst or mortgage. 14 IO I 0/17/2032990.2 If the City failed to file the request for notice of default, the City's right to purchase the Property 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 Purchase Option provided in Section 12, the Owner hereby grants to the City or the City Designated Purchaser the option to purchase the Property 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 forth in Section 19. 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 Property. The City shall have thirty (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 Property for the Maximum Restricted Resale Price set forth in Section 14. The City may assign its rights to purchase the Property 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. 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 inclusionary housing program, and that the City does not undertake 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 Property or any other matter. The City owes no duty of care to protect Owner against negligent, faulty, inadequate or defective building or construction or any condition of the Property 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 Property and will hold the City harmless from any liability, loss or damage as set forth in Section 22(c). Any review by the City of any documents submitted by the Owner to the City pursuant to this Agreement, including, but not limited to any purchase and sale agreement for the Property, is solely to confirm compliance with the requirements of this Agreement and shall not be deemed to be a representation of any kind of the validity or legal enforceability of such document(s). 15 I 010/17/2032990.2 C. Indemnity. Owner agrees to defend ('Yith counsel reasonably selected by the City), indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions, judgments, and costs, including expenses, and reasonable attorneys' fees that the City may incur, as a direct or indirect consequence of: (1) Owner's default, perfo1mance, or failure to perform any obligations as and when required by this Agreement, the City Note, or the City Deed of Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and correct. This provision shall survive the termination or expiration of this Agreement, and the reconveyance of the City Deed of Trust. 23. RESTRICTIONS ON FORECLOSURE PROCEEDS If a creditor acquires title to the Property through a deed in lieu of foreclosure, a trustee's deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent that such proceeds otherwise 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 (in addition to other amounts due to the City pursuant to the City Note and this Agreement) to pay such proceeds to the City in consideration of the benefits received by the Owner through purchase of the Property under this Agreement. 24. RESTRICTION ON INSURANCE PROCEEDS If the Property is damaged or destroyed and the Owner elects not to rebuild or repair the Property, the Owner shall pay the City the portion 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 Property 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 earlier of: (i) thirty (30) years from the date of recordation of this Agreement in the Official Records; or (ii) the date of Transfer of the Property 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). The "Term" consists of the Initial Period and the Extended Period. 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. 16 IO I 0/17/2032990.2 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 Trnst 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 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 Trnst acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, this Agreement shall automatically te1minate 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 thirty (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 termination, if applicable. 17 IO I 0/17 /2032990.2 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 Mortgage 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. Mortgage loans or equity lines of credit junior in lien priority to the City Deed of Trust are not permitted. Owner acknowledges that such prohibition on junior liens was granted in consideration for the receipt of the Home buyer Loan on favorable terms that have assisted the Owner acquire the Prope1ty for Original Affordable Purchase Price, and that without such financial assistance from the City, the Owner would not be have able to pay the Original Affordable Purchase Price, or othe1wise acquire the Property. The City and the Owner agree that the requirements of this section are necessary to ensure the continued affordability of the Property to Owner and to minimize the risk of loss of the Property by Owner through default and foreclosure of mortgage 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 F. 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 origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the Owner or any person claiming under or through the Owner establish or pe1mit any such practice or practices of discrimination or segregation with reference to the use, occupancy, or transfer of the Property. 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 ("CalHFA"), the United States Department of Housing and Urban Development ("HUD"), the Federal National Mortgage 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 Prope1ty 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 Property, and: (i) the Owner is undergoing consideration by HUD for assignment forbearance relief; or (ii) the Owner is 18 1010/17/2032990.2 undergoing consideration for relief under HUD's Temporary Mortgage 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 certified 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 the 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: To Owner(s): [Address of the Property] To the City: City of Carlsbad Housing and Neighborhood Services 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attn: Homebuyer Program The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 34. INTERPRETATION OF AGREEMENT The tenns of this Agreement shall be interpreted so as to avoid speculation on the Property and to insure to the extent possible that the mortgage payments remain affordable to low and moderate income households. Owner acknowledges that, pursuant to this Agreement, in addition to other rights of the City set forth herein, the Owner has granted the City multiple options to purchase the Property (as more particularly set forth in Section 12 and Section 21), and that each option to purchase is given in consideration of the economic benefits received by the Owner resulting from ownership of the Property made possible by the financial assistance provided by the City to the Owner for the purchase of the Property. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties had prepared it. The parties have read and reviewed this Agreement and agree that any rule of 19 IO l 0/17 /2032990.2 construction to the effect that ambiguities are to be resolved against the drafting party (including but not limited to Civil Code Section 1654 as may be amended from time to time) shall not apply to the interpretation of this Agreement. In the event of any conflict between the terms of this Agreement, and the terms of the disclosure statement executed by the City and the Owner in conjunction with this Agreement, the terms of this Agreement shall prevail. 35. CONTROLLING LAW: VENUE The terms of this Agreement shall be interpreted under the laws of the State of California. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the venue for such action shall be the Superior Court of the County of San Diego. 36. ATTORNEYS' FEES In the event any action or proceeding in court or other dispute resolution mechanism permitted under this Agreement is commenced by either party to interpret or enforce the terms of this Agreement, the prevailing party therein shall be entitled to recover from the non-prevailing party all of the prevailing party's reasonable costs and expenses in connection therewith, including on any appeal and including expert witness fees, document copying expenses, exhibit preparation costs, carrier expenses and postage and communication expenses, and reasonable attorneys' fees and costs for the services rendered to the prevailing paiiy in such action or proceeding (which shall include the reasonable costs for services of the City's in-house counsel). 37. TIME IS OF THE ESSENCE In all matters under this Agreement, the parties agree that time is of the essence. 38. TITLE OF PARTS AND SECTIONS Any titles of the articles, sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in construing or interpreting any part of its provision. 3 9. EXHIBITS Any exhibits referred to in this Agreement are incorporated in this Agreement by such reference. 40. INTREPRETATION Where the context requires herein, the singular shall be construed as the plural, and neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa. References in this Agreement to days shall be to calendar days. If the last day of any period to give or reply to a notice, meet a deadline or undertake any other action occurs on a day that is not a day of the week on which the City of Carlsbad is open to the public for carrying on substantially all business functions (a "Business Day"), then the last day for giving or replying to 20 1010/17/2032990.2 such notice, meeting such deadline or undertaldng any such other action shall be the next succeeding Business Day. In no event shall a Saturday or Sunday be considered a Business Day. The use in this Agreement of the words "including", "such as" or words of similar import when used with reference to any general term, statement or matter shall not be construed to limit such statement, term or matter to the specific statements, terms or matters, unless language of limitation, such as "and limited to" or words of similar import are used with reference thereto. 41. NON-WAIVER OF BREACH Neither the failure of the City to insist upon strict performance of any of the covenants and agreements of this Agreement, nor the failure by the City to exercise any rights or remedies granted to the City under the te1ms of this Agreement shall be deemed a waiver or relinquishment of: (i) any covenant contained in this Agreement, or of any of the rights or remedies of the City under this Agreement; or (ii) the right in the future of the City to insist upon and to enforce by any appropriate legal remedy a strict compliance with all of the covenants and conditions of this Agreement. 42. OWNER'S ACKNOWLEDGEMENT OF RESALE RESTRICTION Owner hereby acknowledges and agrees that: A. Owner hereby subjects the Property·to the restrictions set forth above, and hereby limits the price for which Owner may sell the Property and the persons to whom Owner may sell the Property as set forth above. The resale price limitation and other provisions contained in this Agreement restrict the full benefits of owning the Prope1ty. Owner may not enjoy the same economic or other benefits from owning the Property that Owner would enjoy if this Agreement did not exist. B. Owner acknowledges that the City provided the Homebuyer Loan to the Owner because of the Owner's income eligibility, and the Owner further acknowledges that this Agreement requires that the Property be made available to Eligible Purchasers at an affordable price. C. Owner understands all of the provisions of this Agreement. In recognition of the acknowledgments and agreements stated in this Section, Owner accepts and agrees to the provisions of this Agreement with the understanding that this Agreement will remain in full force and effect as to the Property following any Transfer of the Property throughout the Term. 21 IO I 0/17/2032990.2 D. OWNER UNDERSTANDS THAT THE DETERMINATION OF THE MAXIMUM RESTRICTED RESALE PRICE OF THE PROPERTY TO AN ELIGIBLE PURCHASER CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER, TAKING INTO CON SID ERA TION INCREASES IN MEDIAN INCOME AND OTHER FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE SALES PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY THIS AGREEMENT OR SUBJECT TO THE CITY'S HOMEBUYER PROGRAM. OWNER FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF THE HOME, THE PRIMARY OBJECTIVE OF THE CITY AND THIS AGREEMENT IS TO IMPLEMENT THE CITY'S HOMEBUYER PROGRAM IN ORDER TO PROVIDE HOUSING TO ELIGIBLE PURCHASERS AT AFFORDABLE HOUSING COST. THE MAXIMUM RESTRICTED RESALE PRICE COULD BE LESS THAN OTHER SIMILAR PROPERTIES THAT HA VE NO RESTRICTIONS. NOTWITHSTANDING SUCH LIMITATIONS AND RESTRICTIONS IMPOSED ON THE PROPERTY PURSUANT TO THIS AGREEMENT, OWNER DESIRES TO OBTAIN THE HOMEBUYER LOAN AND HAVE THE PROPERTY SUBJECT TO THIS AGREEMENT. 43. COUNTERPARTS ~wm ,B (Initials of Owner) This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts, which shall constitute one and the same agreement. 22 IO 10/17/2032990.2 IN WITNESS WHEREOF, the paiiies have executed this Agreement on or as of the date first written above. 1010/17/2032990.2 CITY: CITY OF CARLSBAD, a municipal corporation By: Name: t{A,/tJt, ~V~&/ ~----"-------'----=------''-----------'--- Its: C tt r61 ~ ~flnc~s DFria:;f2- OWNE~ By: Name: .'\J1'c,h,.,Lc,.f Wa lk,r &havcz(..t ~~ By: Name: 7omo /4o Boess (Proper notarial acknowledgment of execution must be attached) 23 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On~.\~, e70\°\ before me Morgen Fry, Notary Public '-------------------(insert name and title of the officer) personally appeared ~ l ~ \ ~ ~ . , who proved to me on the basis of satisfactory evidence to be the personN whose name(~ is/ai::e subscribed to the within instrument and acknowledged to me that Re/she/tAe;' executed the same in ~/her/t-Retr authorized capacityties,, and that by f:!.i&/her/tAeif signature(~ on the instrument the person(sJ, or the entity upon behalf of which the personesJ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature\~~ • (Seal) 1············~ ~GEMFR'f' : ; · " '" ~ Notary Public • C11iforni1 z 1 ~ «~ ? Sin Di~ County ~ ' • ';. . .-a..:17f?J Commission If 226h05 - M~ Comm. Expire5 Dec 2-4, 2022 Notary Seal Certification (Gave rn m ent code 27361. 7) I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of Notary: ___ M_ofi___,,g~e,_n_f!:1_4--_________________ _ Commission Number: {).d'le ~O~ Date Commission Expires: 12 I 2 '-I \ 2 2 County Where Bond is Filed: ___ \fl_a_n_D_i_~....,,._0 ______________ _ Manufacturer Or Vendor Number: NN A\ ---'------------------ Signature: ____________________________ _ Ariana Serrato Place of Execution: ___ _..c,S..c..,an--=D""'ie"'"'g=o ______ Date: __ O\_..._I 2-_Cf?~(_l_C-i ____ _ CALIFO-RNIA.. ALL-PURPOSE ACKNOWLEDGMENT CIVIL-CODE§_ 1j89 A notary public or others officer completing this certificate verhas only the identity of the individuaf who signed the uocumentto which this-certificate is attached, and not the trutt-rinlP.ess; accuracy,_or_validity of thcrrdocument State of Galifomia C ty , SAN DIEGO o~wi q I 10 /oO l 1 before me, J. COLl'ER,_ NOTARY PUBLIC personally apf:)~: _ _e.ft)_l_clw----'-""-. hs~=----...... LJ"-"---"~~ri--'---tu~. ',,_ns_e_rt--'~""'N . ..L.....->'--a-'---na.:...,'!l....,77=1-o_f 6:-=.::..L_ffi_,~_es_r -~- Name(s) of Signer(s) who pro.ved to me on tr.e basis of satisfactory-evidence to be· the -pe~whose name(s) i subsc~to the within instrument and acknowledge~·-· that he/sb /they executed the same in his/her~authorized capacity(ies), and that by his/her ·r ignature(s)_on · · strument the person(s), or the entity upon behalf of which the person(s) acted, e uted tmrinstrument · · · · · · . I certify underP5'1.dAL TY OF-PERJURY under tbe:Jaws of the State. of California that th foregoing,,.par-agraprr is true and corr t. Place Notary Sea/ Above ----------------oPTTONAL _______________ _ Though-this section is optionaf,...completmg this information can-deter-e.Jteratinn. of the document or fra11du/ent reattachment of this form to-ar:i-unintended doc1c1ment Description of-Attached DocumeRt Title or Type of Document: _____________ Document Date-:-_______ _ Number of Pages: ___ Signer(s) Other Than Named Above: ____________ _ Capacity{ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ____________ _ □ Corporate Officer -Trtle(s): ______ _ D Corporate Officer -T1tte(s): ______ _ □ Partner -□ Limited· □ General □ Partner -D Limited □ General □ Individual □ Attorney in Fact D Individual D Attorney in Fact □ Trustee □ Guardian or Conservator D Trustee · D Guardian or Conservator □Other: _____________ _ D Other. _____________ _ .Signer Is Representing: ________ _ Signer Is Representing: ________ _ ©2014 National Notary Association· www.NationalNotary.org · 1-800-US NOTARY (1-800-876-6827) Item #5907 Escrow No.: SHK10078-006-AM4 EXHIBIT "A" Legal Description A CONDOMINIUM COMPRISED OF: PARCEL 1: AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO (COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO. 14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP"). PARCEL 2: RESIDENTIAL UNIT NO. 78, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN; PARCEL 3: AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY, DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY, THE "DECLARATION"). PARCEL 4: A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D, AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT GRANT DEED ~E{ORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ':1 }Z O\Cj AS DOCUMENT NO.2.0,9-0!» 80~ s'O, WHICH EASEMENT IS APPURTENANT 10 THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE. PARCEL 5: A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE. EXHIBITB FORM OF OWNER OCCUPANCY CERTIFICATION To: City of Carlsbad ("City") From: ___________ [name of owner(s)] ("Owner(s)") Address of Property: ____________ ("Property") Date: By signature below, I ______________ [insert name or names of Owner(s)] hereby certify to the City under penalty of perjury that I/we occupy the home located at _________________ [insert address] ("Property") as my/our principal place of residence and that I/we have occupied the Property for _____ LJ [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? All of the occupants of the Property are listed as follows: This Owner Occupancy Certification is signed on ________ , 20_, under penalty of perJury. By: Owner signature Date: By: Owner signature Date: Due Date: _____ of each calendar year. Attach copy of utility bill or driver's license showing address of Property. B-1 IO I 0/17 /2032990.2 EXHIBIT C FORM OF OWNER'S NOTICE OF INTENT TO TRANSFER To: City of Carlsbad ("City") From: __________ [name of owner(s)] ("Owner(s)") Address of Property: ___________ ("Property") Date: Please be notified pursuant to Section 8 of the Resale Restriction Agreement and Option to Purchase between Owner and City dated ______ that the Owner intends to transfer the Property listed above. A. The following information is provided to the City pursuant to Section 8 of the Resale Agreement: 1. AddressofProperty: ____________________ _ 2. Date Owner purchased Property: ________________ _ 3. Original Affordable Purchase Price: _______________ _ 4. Original amount of Home buyer Loan:~--------------- 5. Full Purchase Price: ---------------------- 6. Date Owner intends to vacate Property: ______________ _ 7.. Date Property will be placed on market: 8. 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 Restriction Agreement, the following the HUD-1 Settlement Statement from Owner's purchase of the property is attached. C. I have not yet listed the Property for sale with a multiple listing service, or contacted a real estate broker or financial institution. I agree to prepare the Property for sale by: 1. obtaining a pest control repo1t within thirty (30) days of the date of this notice; C-1 1010/17/2032990.2 2. repairing all damage noted in the pest report 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 Property; 3. allowing the City or its designee to inspect the Property within thirty (30) days of this notice; 4. maintaining utility connections until the Property is transferred; 5. permitting a walk through by the City prior to close of escrow or the transfer. This Owner's Notice oflntent to Transfer is certified by Owner to be true and co1Tect and is signed on the date(s) below under penalty of perjury. By: Owner signature Date: By: Owner signature Date: C-1 1010/17/2032990.2 EXHIBITD FORM OF CITY RESPONSE NOTICE To: __________ ("Owner(s)") From: City of Carlsbad ("City") Address of Prope1iy: ____________ ("Property") Date: Thank you for delivering the Notice oflntent to Transfer. This letter is the City Response Notice described in Section 10 of the Resale Restriction Agreement that was recorded against title to your home. The City: 1. __ City will check this Sentence # 1 and complete other information listed in # 1 if the City intends to exercise its option to purchase the Property or assign its option to the Prope1ty to a Designated Purchaser at any point during the entire Term of the Resale Restriction Agreement. A. Affordable Sales Price: $ -------- B. Amount owed on Homebuyer Loan: $ ________ _ C. Full Sales Price (add numbers in l(A) and l(B)): $ _____ _ D. Fair Market Value (as estimated by the City):$~----- The Price for which you may sell your Property ( or the Maximum Restricted Resale Price) (The greater of 1 (C) and 1 (D)): $ ______ _ In connection with the City's Option, you will owe a $ ___ to City. If the City has assigned its option, the name of Designated Purchaser is _____ _ The City or its Designated Purchaser will follow up with you to complete the sale of your Property. If a Designated Purchaser purchases your Property, that designated purchaser may assume the amount you owe on the Home buyer Loan. If the City purchases your Property the amount you owe on the Homebuyer Loan shall credited against the purchase price paid by the City. 0-1 1010/17/2032990.2 2. ___ City will check this Sentence #2 and complete other infotmation listed in #2 if the City intends for Owner to sell the Property to an Eligible Purchase during years 1-15 of the Resale Restriction Agreement. A. Affordable Sales Price: $ ------- B. Amount owed on Homebuyer Loan: _________ _ C. Full Sales Price (add numbers in l(A) and l(B)): $ _____ _ D. Fair Market Value (as estimated by the City):$ ______ _ The total price for which you may sell your Property ( or the Maximum Restricted Resale Price) (the greater of l(C) and l(D)): $ ______ _ As noted in 2(B) above, the amount owed on the Home buyer Loan is $ ____ . An Eligible Purchaser is likely to assume the City Note and will then agree to repay the amount of the Home buyer Loan. You must market your Propetiy to an "Eligible Purchaser" as required by Section 15 of the Resale Restriction Agreement. The Maximum Qualifying Income of Eligible Purchaser is: Low Income Household --- 1 person household$ ______ _ 2 person household$ ______ _ 3 person household$ ______ _ 4 person household$ _____ _ 5 person household$ ______ _ 6 person household$ ______ _ Moderate Income Household --- 1 person household$ ______ _ 2 person household$ ______ _ D-2 IO I 0/17/2032990.2 3 person household $ ------- 4 person household$ _____ _ 5 person household $ ______ _ 6 person household $ ______ _ When you locate a proposed purchaser of your Property, you must provide the City with the information listed in Section 15(8) of the Resale Restriction Agreement and l 5(D)(l) through ( 4 ). Upon sale of your Property to a proposed purchaser who has been approved by the City as an Eligible Purchaser, you must provide the information required by Section 15(D)(5) through (7). 3. __ The City will check this Sentence #3 if it does not wish to exercise or assign its option to purchase the Property between the sixteenth (16th) year of the Resale Restriction Agreement and the end of the Term. At this point you may proceed to sell your Property to a third party for a market price. Upon sale of the Property, you must provide the City with the information required by Section 17 of the Resale Restriction Agreement. You also you must repay$ _____ to the City as required by the City Promissory Note. CITY: Name: --------~---- Title: Date: Designated Purchaser (if applicable): Name: _____________ Name: _____________ _ Date: -------------Date: All questions regarding this notice should be directed to ---------,- D-3 1010/17/2032990.2 EXHIBIT E FORM OF OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE Name: Address of Prope11y: I (We), ____________ [insert name(s)] hereby acknowledge that I (We) received the City Response Notice (as described in Section 10 of the Resale Restriction Agreement on _____ [insert date(s)]. By: Owner signature Date: By: Owner signature Date: E-1 IOI0/17/2032990.2 To: From: EXHIBITF FORM OF OWNER REQUEST FOR CITY SUBORDINATION TO REFINANCED FIRST LENDER LOAN City of Carlsbad ("City") Property Address: _________________ ("Owner(s)") _________________ ("Property") The Owner hereby requests the City to approve the Owner's refinance of the existing first mortgage on the Property. The Owner provides the following information which it certifies to be true and correct: 1. Original Affordable Purchase Price of Property: $ ------- 2. Original Homebuyer Loan Amount $ ______ _ 3. Full Purchase Price of Prope1ty (1 plus 2) $ ______ _ 3. Original principal balance of existing First Lender Loan: $ ______ _ 4. Interest rate of existing First Lender Loan: $ ______ _ 5. Outstanding principal balance of existing First Lender Loan: $ ------- 6. Monthly payments due on existing First Lender Loan $ ______ _ 7. Principal amount of proposed new First Lender Loan: $ ______ _ 8. Interest rate of Proposed new first Lender Loan: $ ______ _ 9. Monthly payments to be due on new First Lender Loan: $ ______ _ The Owner hereby certifies the above information is true and correct and this Owner(s) Request is executed under penalty of pe1jury on the date(s) below. By: Owner signature Date By: Owner signature Date F-1 10 I 0/17/2032990.2 R~_cording Requested by: FNrG Builder Services -N6 RECORDING REQUESTED BY: FNTG Builder Services Escrow No.: SHK10078-006-AM4 Title No.: SHK10078-006KC WHEN RECORDED MAIL DOCUMENT AND TAX STATEMENT TO: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 APN: 213-262-06-00 wop #-Exempt from fee per GC 27388.1 (al (2); recorded concurrently in connection with a transfer subject to the imposition of documentary transfer tax * DOC# 2019-0433433 111111111111 lllll 1111111111111111111111111 lllll lllll 111111111111111111 Sep 30, 2019 03:42 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECORDER FEES: $32.00 (SB2 Atkins: $0.00) PAGES: 7 SPACE ABOVE THIS LINE FOR RECORDER'S USE The undersigned declares exemption under the following: ;I( >r Exempt from fee per GC 27383; No fee shall be charged by the recorder for services rendered to the State, to any municipality, county in the State or other political subdivision thereof, except for making a copy of a paper or record.~ .,)j!" NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY DOCUMENT TITLE Title Page of Document to Record REC00059 (OSI Rev. 4/5/18) Escrow No.: SHK10078-006-AM4 Recotding Requested by: FNTG Builder Services SH~IOD?~ {JD~ Mi,/ff_ RECORDING REQUESTED PURSUANT TO GOVERNMENT CODE SECTION 27383 When Recorded Mail To: City of Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY NOTICE IS HEREBY GIVEN, that the City of Carlsbad ("City"), has required Nicholas Walter Erhardt Boess and Tomoko Boess, Husband and Wife as Joint Tenants ("Owner") to enter into certain affordability covenants and restrictions entitled, Affordability Restrictions on Transfer of Property, Occupancy, and Refinancing Restrictions and Option to Purchase ("Restrictions"), with reference to certain real property located at 6026 Colt Place #105, Carlsbad, CA 92009, San Diego County ("Property"), and further described in Exhibit A, incorporated herein by reference. The affordability covenants and restrictions contained in the Restrictions include without limitation and as further described in the Restrictions: l. The Property is restricted for resale to a low-income household at a purchase price affordable to a low-income household, except as set forth in the Restriction. 2. The Owner must occupy the Property as the Owner's principal residence. 3. The Owner must give notice to the City before resale of the Property. 4. The Owner has granted the City an option to purchase the Property upon resale or default. 5. The Owner's rights to pledge the Property as security for a debt are limited. In the event of any conflict between this Notice of Affordability Restrictions on Transfer of Property ("Notice") and the Restrictions, the terms of the Restrictions shall prevail. The Restrictions have been recorded concurrently herewith and shall remain in effect for thirty (30) years commencing on the date of recordation of the Restrictions. This Notice is being recorded and filed by the City of Carlsbad ("City") in compliance with Health and Safety Code Sections 33334.5(t)(3) and (4) and/or Section 33413(c)(5), as amended effective this date, and shall be indexed against the City and the Owner. IN WITNESS WHEREOF, the parties have executed this Notice of Affordability Restrictions on Transfer of Prope1ty on or as of the date first written above. CITY: Cll~SJ.LSBAD By: ~f;~ Debbie ~ain,Community and Economic Development Director Dated: j'fl'2 / t 9 2 OWNER: (Signature) t--,,cY\n~ wo...l~ b'(~J.._q-~~ (Print Name) ~ (Signature) &ess; (Print Name) (PROPER NOTORIAL ACKNOWLEDGEMENT MUST BE ATTACHED) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Son D,~u On ~ro'ce< \(a a0\9 before me, ...Ll.!,.[!1'1~-=q~---=-~~='-~'--'---'--,..._µ.,1--=--1J;..u.....-,r-.----.JL...J£.:11,,,U-L-=c_,=---- OatJ personally appeared ~e, ~rd:z11f\ Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(,O whose nameM is/me subscribed to the within instrument and acknowledged to me that -ne/she/thily executed the same in Rie/hei:.4Reir authorized capacity(leS(, and that by AtS/her/tl'retr signature~on the instrument the personjsT, or the entity upon behalf of which the person.(e(acted, executed the instrument. 1············1 , PATRICIA L. CRESCENTI : ...,. Noury Public • Calif1rniil z ~ ' · '! Sin Di~ C1unty li "' · Commission I 2239911 - My Comm. Expires May 24, 2022 Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signal~ ,-6? Signeofotary Public ----------------opnoNAL----------------s:Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. D p o of.--Attached Document Title or Type of Document:---Document Da Number of Pages: ___ Signer(s Named Above.__: ~------------- Capacity(ies) Claimed by Signer(s) Signer's Name: ------------~---- U Corporate Officer -Title(s): -----~- □ Partner - I I Limited [] General □ Individual lJ Trustee Ci Attorney in [i Guar or Conservator I J Other: ----::::,,-"'"'----------- 1 's Name: ____________ _ J Corpor Officer -Title(s): ______ _ J Partner - [ · ·ted I I General -_1 Individual □ ey in Fact iJ Trustee □ Guardia Conservator [_] Other: ---------~,__ __ _ ©2014 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Notary Seal Certification (Gave rn m ent code 27361. 7) I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of Notary: Pc.tin' a a L . G re.see Y""\ti Commission Number: dd3 q°l / 1 Date Commission Expires: "!5 / Z '-l f 2 2 County Where Bond is Filed: __ lS'"_a_n_D_lqJ_,,_,_o _______________ _ N tJ r<\ Manufacturer Or Vendor Number: ___________________ _ Ariana Serrato Place of Execution: San Diego Date: 91 lLP r l ~ ---~='-'-..::;__;_;:=-=-------------------- CALIFO-RNlA. ALL-PURPOSE ACKNOWLEDGMENT CIVIL-CODE§. 1j89 A notary· public or others officer completing this certificate verifies only the Identity of the individuaf who signed the -documentto which this-certificate is attacheQ, and not the tn.rtfm11P.ess; accuracy,_or_validity of that-document State of California Cot:1nty of. _M_N_DI_E_G_O ______ _ On __ CJ_~/ '--+-~_J_q ___ before me, J. COL'l'ER,_ NOTARY PUBLIC ~ personally apt3~: (Vt Jno/g wJ-1-t;re l?r::::11° 71H;e Off~ -1or(1{)t-iJ ~ Name(s) of Signer(s) who pro.Yed to me on tl:ie basis of satisfactory -evidence to be-the -person(s) whose name(s) is~ subsc=·b to the wlthin instrument and acknowledge~·rne-that he/st5e/t~ executed the same m his/h r/..t:hei authorized capacity(ies), and that by l:i-islhe ·rs rrature(s)_o~strument the person(s), or the . · upon behalf of which the person(s) acted, ed 1:-heinstrument ·· · · · · · . ~ certify underPENAL1Y OF-PERJURY under tbe:Jaws of the State. of California that t e foregoing,,.p.ar-agra:plT is true and corr. t. J. COLTER . ~ Notary Public • California ! _ (/{~~ San Di~0 County -f '}f!fJ:;fl} Commission# 2290309 ~ My (or.im. Expires Jun 23, 2023 Public Place Notary Seal Above · ----------------oPTTONAL _______________ _ Though-this section is optional,-eompleting this inform'-2tion can-deter-alteratirm_of the document or fra11dulent reattachment of this form w-an-unintended document Description of-Attached Document 1itle or Type of Document: _____________ Document Date:-_______ _ Number of Pages: Signer(s) Other Than Named Above: ____________ _ Capacity{ies) Claimed by Signer(s) Signer's Name: ___________ _ D Corporate Officer -Trtle(s): ---,.---- □ Partner -D Limited· D General D Individual D Attorney in Fact D Trustee D Guardian or Conservator .□Other: ______________ _ .Signer Is Representing: _________ _ Signer's Name: ____________ _ D Corporate Officer -77tte(s): ______ _ D Partner -D Limited D General D Individual □ Attorney in Fact □ Trustee □ Guardian or Conservator □Other. ______________ _ Signer Is Representing: ________ _ ™"-~~~ ©2014 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 Escrow No.: SHK10078-006-AM4 EXHIBIT "A" Legal Description A CONDOMINIUM COMPRISED OF: PARCEL 1: AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO (COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO. 14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP"). PARCEL 2: RESIDENTIAL UNIT NO. 78, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN; PARCEL 3: AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY, DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY, THE "DECLARATION"). PARCEL 4: A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D, AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON °I /':f /2014 AS DOCUMENT NO.201~ ~o38Q'-430, WHICH EASEMENT IS APPURTENANT'TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE. PARCEL 5: A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE. Recording Requested by: FNTG 1Builder Services -Ne, RECORDING REQUESTED BY: FNTG Builder Services Escrow No.: SHK10078-006-AM4 Title No.: SHK10078-006KC WHEN RECORDED MAIL DOCUMENT AND TAX STATEMENT TO: Carlsbad Housing & Neighborhood Services Department ATTN: Housing & Neighborhood Services Director 1200 Carlsbad Village Drive Carlsbad, CA 92008 APN: 213-262-06-00 wop DOC# 2019-0433436 111111111111 lllll lllll mlllllll lllll lllll 1111111111111111111111111111 Sep 30, 2019 03:42 PM OFFICIAL RECORDS Ernest J. Dronenburg, Jr., SAN DIEGO COUNTY RECOR.DER FEES: $56.00 (S82 Atkins: $0.00) PAGES: 15 SPACE ABOVE THIS LINE FOR RECORDER'S USE Jl The undersigned declares exemption under the following: °'lf' Exempt from fee per GC 27388.1 (a} (2}; recorded in connection with a transfer subject to the imposition of documentary transfer tax >(' SUBORDINATION AGREEMENT Title Page of Document to Record REC00059 (DSI Rev. 4/5/18) DOCUMENT TITLE Escrow No.: SHK10078-006-AM4 RECORDING REQUESTED BY: FNTG Builder Services Order No. SHK I 0078-006AM WHEN RECORDED RETURN TO: Carlsbad Housing& Neighborhood Services Department Attn: Housing & Neighborhood Services Director 1200 Carlsbad Village Drive Carlsbad, California 92008 Form #001 Space Above for Recorder ·s Use SUBORDINATION AGREEMENT NOTICE; THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT THIS SUBORDINATION AGREEMENT ("Agreement") is made and entered into as of Sep+-e111 ~ l O , 20 Ji, by and among CrossCountry Mortgage, a Corporation (togetli.er with its successors and assigns, "Senior Lender"), CITY OF CARLSBAD, a municipal corporation ("Subordinated Lender"), and Nicholas Walter Erhardt Boess and Tomoko Boess ("Borrower"). RECITALS: Senior Lender has agreed, subject to certain conditions, to lend to Borrower up to $_~55 j ~ J). ov_ _ _ to be secured by a promissory note (the "Senior Note") and a Deed ofTrust, Security Agreement, Assignment of Leases and Rents, and Fixture Filing dated as of~ 11)( V . 20 Jj, granted by Borrower for the benefit of Senior Lender against the real pro;y described on Exhibit A attached hereto (the "Property") (the "Senior Trust Deed," and the Senior Note and Senior Trust Deed being collectively, the "Senior Loan Documents"). Subordinated Lender has agreed, subject to certain conditions, to make a loan to Borrower in the aggregate maximum principal amount of$ 3'S /, tll(). w (the I "Subordinated Loan") securing Subordinated Lender's contribution under its Homebuyer Program, Affordable Housing Agreement, Resale Restriction, Deed of Trust and Promissory Note identified on Exhibit B attached hereto ( collectively, the "Subordinated Loan Documents"), and which Subordinated Loan Documents are secured against the Property. One of the conditions of Senior Lender extending credit to Borrower is the subordination of (a) the Borrower's obligations to the Subordinated Lender under the Subordinated Loan Documents to the Borrower's obligations to the Senior Lender under the Senior Loan Documents and (b) the Subordinated Liens, defined below, to the Senior Trust Deed. 11/13/17 NOW, THEREFORE, m consideration of the mutual covenants contained herein, the parties agree as follows: I. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: I. 1 "Subordinated Indebtedness" means all obligations ofany type or nature owed under the Subordinated Loan or secured by the Subordinated Liens, presently or hereafter due from Borrower to Subordinated Lender under the Subordinated Loan Documents, including without limitation the Subordinated Loan, together with all interest and other charges or expenses incidental thereto. 1.2 "Subordinated Liens"· means all liens, mortgages, encumbrances, restrictions, and security interests of any type or nature, previously or hereafter granted by Borrower to Subordinated Lender, including without limitation, liens, mortgages, encumbrances, restrictions, and security interests granted in or arising under the Subordinated Loan Documents. 1.3 "Senior Indebtedness" means all obligations of any type or nature owed under the Senior Loan Documents or secured by the Senior Trust Deed, presently or hereafter due from Borrower, its successors and assigns, to Senior Lender, its successors, assigns, or participants, including, without limitation, all principal, interest, charges, and expenses under or incidental to the indebtedness owed under the Senior Loan Documents or secured by the Senior Liens. 1.4 "Senior Liens" means all liens, mortgages, security interests, and collateral assignments of any type or nature granted by Borrower to Senior Lender in or arising under the Senior Trust Deed, or in any other document or agreement securing payment of the Senior Indebtedness, and any amendments, modifications, or supplements thereto. 2. Consent of Subordinated Lender. Notwithstanding any of the terms of the documents and instruments creating the Subordinated Indebtedness, the Subordinated Lender does hereby consent to the creation, now or hereafter, of the Senior Indebtedness and the Senior Liens and to the execution and delivery by Borrower of any and all documents and instruments in connection therewith, including, without limitation, the Senior Note, the Senior Trust Deed, and to the performance by Borrower of any and all of its obligations under or in connection therewith. Subordinated Lender agrees that no such action shall constitute an event of default or event, which with the passage of time, will become an event of default under any document or instrument relating to the Subordinated Indebtedness or Subordinated Liens. 3. Subordination of Subordinated Liens. In consideration of Senior Lender advancing the Senior Indebtedness, the Subordinated Lender agrees that the Subordinated Indebtedness is hereby subordinated to the Senior Indebtedness and the Subordinated Liens are hereby subordinated to the Senior Liens; the Senior Liens shall be first, prior, and superior to the Subordinated Liens. The terms and provisions of any document creating Subordinated Indebtedness or a Subordinated Lien are hereby amended to provide that the Subordinated Indebtedness and the Subordinated Liens therein granted are subordinate to the Senior Form #00 1 -2 -4842-7210-8112.4 11/13/17 Indebtedness and the Senior Liens respectively and that none of the terms of such documents or instruments evidencing the Senior Indebtedness or the Subordinated Liens shall affect or limit in any way the rights or remedies provided to the holder of the Senior Indebtedness under the Senior Loan Documents or the Senior Liens. 4. Insolvency Proceedings Against Borrower. The insolvency or bankruptcy of Borrower shall not affect this Agreement, and the same shall remain in full force and effect. In any insolvency or bankruptcy proceeding for the complete liquidation of Borrower (as opposed to a Chapter 11 Reorganization), Subordinated Lender shall not receive any distribution from the bankruptcy estate of Borrower unless and until the Senior Indebtedness has been satisfied in full. 5. Subordinated Loan Documents. Subordinated Lender shall not, without the prior written consent of Senior Lender, amend, modify, or supplement the Subordinated Loan Documents or any other documents or instruments creating or evidencing the Subordinated Indebtedness or Subordinated Liens. 6. Assignment. Subordinated Lender represents and warrants that no part of the Subordinated Indebtedness or Subordinated Liens have been assigned or transferred to or for the benefit of others. Subordinated Lender agrees not to sell, assign, transfer, or endorse the Subordinated Indebtedness, no matter how evidenced, to anyone except subject to the terms and conditions of this Agreement. The terms of this Agreement shall bind the successors and assigns of the parties. 7. Additional Documentation. Subordinated Lender agrees to execute and deliver to Senior Lender such other instruments as may reasonably be requested by Senior Lender in order to enable Senior Lender to enforce its rights hereunder. 8. No Liability, The parties hereto agree that Senior Lender shall not be liable for any action or failure to act under or in connection with any of the documents or instruments creating the Senior Liens or the Senior Indebtedness, it being understood that the decision of whether and when to act and the manner of proceeding under such instruments and documents shall not be affected in any manner by the existence of the Subordinated Indebtedness and the Subordinated Liens. It is further agreed that such obligations as may be imposed under the documents and instruments creating the Senior Indebtedness and the Senior Liens or under applicable laws shall run exclusively to the benefit of Borrower and may be enforced or waived only by Borrower and not by the holders of the Subordinated Liens or Subordinated Indebtedness. 9. Insurance and Condemnation. Subordinated Lender agrees that if it receives any insurance or condemnation proceeds in respect of any of the assets of Borrower subject to the Senior Liens, Subordinated Lender shall immediately so notify Senior Lender in writing and shall deliver such proceeds to Senior Lender so long as any Senior Indebtedness remains unpaid. l 0. Irrevocability of Agreement. Subordinated Lender agrees that, without notice to or further assent by Subordinated Lender (a) the liability of Borrower in respect of the Senior Indebtedness or the Senior Liens may, in whole or in part, be released by Senior Lender and the documents and instruments creating or evidencing the Senior Indebtedness or the Senior Liens Form #00 1 -3 -4842-7210-8112.4 11/13/17 may be amended or supplemented, as Senior Lender may deem advisable, provided, however, Senior Lender shall not increase the interest rate, increase the principal amount , or reduce the term of its loan, except as set forth in or permitted under the terms of the Senior Loan Documents, without the prior written consent of the Subordinated Lender, provided that no such written consent is required for the Lender to enter into (i) any modification, deferral or forbearance agreement with the Borrower relating to the Senior Indebtedness or the Senior Liens (which may involve deferral or capitalization of principal on an interest-free or interest-bearing basis or extending the maturity date) as the result of the Borrower's temporary or permanent financial hardship or caused by natural disasters or other events impacting the Borrower or the property subject to the Senior Liens or (ii) any deed involving a transfer of title by the Borrower to the Senior Lender in satisfaction of the Senior Indebtedness to avoid foreclosure (b) any collateral and/or security interests in respect of the Senior Indebtedness or the Senior Liens may, from time to time, in whole or in part, be exchanged, sold, or surrendered by Senior Lender, and (c) any deposit balance or balances to the credit of Borrower may, from time to time, in whole or in part, be surrendered or released by Senior Lender to Borrower, all without impairing or in any way affecting the subordination contained in this Agreement; nor shall the subordination herein contained be impaired or affected in any way by any other action, inaction, or omission in respect of the Senior Indebtedness or the Senior Liens or this Agreement. 11. Default 11. l Upon the occurrence of any event which would permit Subordinated Lender to accelerate the maturity of the Subordinated Indebtedness, before exercising such acceleration remedy, Subordinated Lender shall provide thirty (30) calendar days' advance written notice to Senior Lender of its intent to accelerate the Subordinated Indebtedness. Such notice shall specify in reasonable detail the default entitling Subordinated Lender to accelerate. Subordinated Lender shall accept any cure by Senior Lender as if made by Borrower. 11.2 Following the Senior Lender's providing notice to the Borrower of acceleration of the maturity of the Senior Indebtedness, Senior Lender shall endeavor to notify Subordinated Lender thereof within five (5) business days after giving such notice and shall provide Subordinated Lender with not less than sixty (60) days' notice to cure the default that caused the acceleration. Lender shall be entitled to commence or continue any proceedings to enforce its rights against the Borrower, including foreclosure proceedings, provided that Lender shall suspend or postpone the scheduled date of any foreclosure sale until after the period of notice to the Subordinated Lender has expired. The Senior Lender will not be in violation of this Section 11.2 if a court with jurisdiction over the foreclosure proceeding (if any), or the bankruptcy court in a bankruptcy case, or the public official charged with carrying out the activity or event, fails or refuses to halt the sale after the Senior Lender has made reasonable efforts to move the court or request the public official for a suspension or postponement of the sale. After receipt of notice from Senior Lender of such acceleration, Subordinated Lender shall hold for the benefit of Senior Lender all payments received thereafter from Borrower and shall promptly remit the same to Senior Lender. Senior Lender shall accept any cure by Subordinated Lender that fully remedies the default as if made by Borrower. Form #00 1 -4 -4842-7210-8112.4 11/13/17 12. Misce))aneaus 12.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, including any party substituted as a beneficiary under the Senior Trust Deed. This Agreement shall be construed and enforced in clccordance with the laws of the State ofCalifornia. 12.2 If any of the provisions or terms of this Agreement shall for any reason be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other of the terms hereof, and this Agreement shall be construed as if such unenforceable term had never been contained herein. 12.3 All notices and other communications hereunder shall be deemed to have been duly given, made, or served, if in writing and delivered personally or mailed by first class mail, postage prepaid, to the respective parties to this Agreement as follows: (a) (b) If to Borrower: If to Subordinated Lender: Carlsbad Housing & Neighborhood Services Department Attn: Housing & Neighborhood Services Director 1200 Carlsbad Village Drive Carlsbad, California 92008 With a copy to: Carlsbad City Attorney City of Carlsbad 1200 Carlsbad Village Drive Carlsbad, California 92008 ( c) If to Senior Lender: The designation of the person to be so notified or the address of such person for the purposes of such notice may be changed from time to time by similar notice in writing, except that any communication with respect to a change of address shall be deemed to be given and made when received by the party to whom such communication was sent. Form #00 1 - 5 -4842-7210-8112.4 11/13/17 12.4 This Agreement represents the entire Agreement between the parties hereto on the subject matter hereof and, except as expressly provided herein, shall not be affected by reference to any other documents. Neither this Agreement nor any provision hereof may be changed, waived, discharged, or terminated orally, but such may be accomplished only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge, or termination is sought. 12.5 In the event any action is filed to enforce or construe the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees. Attorney fees shall include services rendered at both the trial and appellate levels, as well as services rendered in any bankruptcy proceeding or arbitration proceeding. [Remainder of this page intentionally left blank.] Form #001 - 6 -4842-72 I 0-8 I 12.4 11113117 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date and year first above written. CITY OF CARLSBAD, a municipal corporation By 1{~11!2:!}--, £/A-f/if£ WJ/Ke;y Its: C11 f GF Crerz_11r1 VIV> Vff itf)Z.. A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this 1ertificate is attached, and not the truthfulness, accuracy, or validity oft STATE OF CALIFORNIA COUNTY OF ______ _ On ______ ,20 Notary Public, personally appeared__,,.~------------' who proved to me on the basis of satisfactory evidence o be the person(s) whose name(s) is/are subscribed to the within instrument and acknow aged to me that he/she/they executed the same in his/her/their authorized capacity(ies), a that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf o vhich the person(s) acted, executed the instrument. I certify u er PENAL TY OF PERJURY under the laws of the State of California that . the foregoing p· agraph is true and correct. S-1 4842-7210-8112 4 11 IJ 17 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On .Se_p:t. \9. 1 ci0\9 before me, Mor_gen Fry, Notary Public (insert name ai:id title of the officer) personally appeared 6 \ ~ Y\..k:.. L\.A..k~ , who proved to me on the basis of satisfactory evidencto be the person~) whose nameN) is/e,i:e subscribed to the within instrument and acknowledged to me that ~/she/Ittsv executed the same in l'ris.lher/tksit..authorized capacity('teaj, and that by f'ri&/her/t'hsir signature~ on the instrument the person~, or the entity upon behalf of which the person~ acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. 1············ e MORGENF!ff f -Noury Public -Ciliforni1 1 S.n Oi@!O County f Commission II 2268'05 - ' #.y Comm. Expire\ DK 24, 2022 (Seal) SENIOR LENDER: CrossCountry Mortgage, Inc a Corporation By: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF E,JiElfi'Ofll~IA o)1to ) COUNTY OF CuYAfb_.~ ) ss. ) On ~~ l'.l. 20 d. before me, ~~~ Notary Pub Ii c. personally appeared ~~1~<L. ~"'-t!'.': . who proved to me on the basis of satisfactory e, idence to be the person(s) whose namc(s) is/arc subscribed to the "ithin instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies). and that b) his/her/their signature(s) on the instrument the person(s). or the entity upon behalf of v.:h ich the person( s) acted. executed the instrument. 0),-(u, I certify under PENALTY OF PERJURY under the laws of the State ofetllfom1a that the foregoing paragraph is true and correct. d and official seal. ALEX J. RAGO~ ATTORNEY-AT-LAW NOTARY PUBLIC . STATE OF OHIO LIFETIME COMMISSION [Signature !'age to Suhordination Agreement/ S-2 -18-12-7210-8112.-1 11 I 3, 17 BORROWER: By: A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this ce 1 tificate is attached, and not the truthfulness, accuracy, or validity of that document. ST A TE OF CALIFORNIA COUNTYOF 22~Ulz_W On 0} l lJ ) Notary Public, personally appeared..L.1.!:.:!::'.:IU.tllota........Ul.4&~~:...,=~~-~~-, who proved to me on the basis of satisfactory evidence to be the pers?u4-) whose name(s) 1s re subscribed to the within instrument and acknowledged to me thaU!.>'she/they executed the same i~her/their authorized capacity(ies), and that b@her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. official seal. J .• ":, •. e e o e e o e e e ~ J, COLTER l , ,}.~0 Notary Pu.blic · California 2 .; =-~ -··'.Jfi;i San Diego County t :.; ;'~ Commission # 2290309 f '.i • ·:.•· :2 ;'':· Expires Jun 23, 2023 - [Signature Page to Subordination Agreement] S-3 4842-7210-8 I I 2.4 11/13/17 2-in-1 Certification ( Government code 27361. 7) I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of Notary: ___ Ml........!;o:;_r~al---"e,,_n_ili::......:......---------------- Commission Number: __ o-_a-_{p_~ __ O_i; ____ Date Commission Expires: 12-/ 2 4 j 2 'Z County Where Bond is Filed: __ J"i_a_n __ D--=----i~...c.+-o ______________ _ Manufacturer Or Vendor Number: _N_N_f<_\ _______________ _ (Government code 27361.7) I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS: Name of Notary: J • (Ci\ 'Tif Commission Number: Oc7905D"1 Date Commission Expires: 0 lf / z-3 J I). 3 ~11n D1eAo County Where Bond is Filed: ___ l-t ____ .=_J.....,_ _____________ _ Manufacturer Or Vendor Number: _N'--'-'-.,l_A__,_\ ________________ _ Place of Execution: __ ~_(t_Y'\~b~-,-~-+-------------------- Signature: _____ ~---------------Date: _q_j _i _fl _{I_~ _ Ariana Serrato CALIFO-RNIA.ALL-PURPOSE ACKNOWLEDGMENT CIV1L-CODE § 1j89 A notary public or other. officer completing this certmcate verifies only the identity of the individuaf who signed the -document-to which this-certificate is attached. and not the truthfu!P.ess, accuracy,_or_validity of thatdocument State of Galifomia Dt:111 O· ____________ _ C ty 1 SAN DIEGO On q I o/J.Dl tj before me, J. CQL:I:ER,_ NOTARY P1J.BLIC Date -ro ,,-,/1;,L :" 12-!:!t;_ '?e_rt N"ame -and Trtle of. the Officer personally ap13eared ____ I_'-'--' T ll/"--~--"'~-LXJ _ __,.\..a......., .... .2 ______________ _ Na.me(s) of Signer(s) -----------~ who prayed to me on tl=le basis of satisfactory -evidence to be· the l:~!1(s) w-1:rose nan:,e(O;are suebed to the wlthin instrument and acknowl~g to-me-that he~ey executed the same in hi er. h~ir authorized capacityOes), and that by h: er/ eir signatu~e(s)_on the instrument the person(s), or t entity upon behalf of which the person(s) acte , executed t-rnrinstument · · · · · · . 1 certify under-PENAL 1Y OF-PERJURY under tbeJaws of the State. of California that e foregging,,.p.ar-agraptr is true and correct. Place Notary Seal Above · ----------------oPTTDNAL _______________ _ Though-this section is optiona/,...completing this information can-deter-alteratinn. of the document or fra1:1dulent reattachment of this form to-e.R-unintended docf:lment Description of-Attached Documer-it Title or Type of Document _____________ Document Date:-_______ _ Number of Pages: Signer(s) Other Than Named Above: ___________ _ Capacityfies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ____________ _ D Corporate Officer -Trtle(s): _____ _ D Corporate Officer -Titte(s): ______ _ D Partner -D Limited· D General D Partner -D Limited □ General D Individual D Attorney in Fact D IndMdual D Attorney in Fact D Trustee □ Guardian or Conservator D Trustee · D Guardian or Conservator .□Other. _____________ _ D Other. _____________ _ Signer ls Representing: ________ _ Signer Is Representing: ________ _ ~~~~~-~~ · ©2014 National Notary Association· www.NationalNotary.org · 1-800-US NOTARY (1-800-876-6827) Item #5907 Escrow No.: SHK10078-006-AM4 EXHIBIT "A" Legal Description A CONDOMINIUM COMPRISED OF: PARCEL 1: AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE, RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO (COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO. 14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP"). PARCEL 2: RESIDENTIAL UNIT NO. 78, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN; PARCEL 3: AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY, DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY, THE "DECLARATION"). PARCEL 4: A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D, AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY ON ot4'-f /z O ,e, AS DOCUMENT NO.20,°'-O31'04.30, WHICH EASEMENT IS APPURTENANT O THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE. PARCEL 5: A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE. EXHIBIT B Subordinated Loan Documents (I) Affordable Housing Agreement Imposing Restrictions on Real Property recorded April 19, 2018 as Document No. 2018-0156905 and First Amendment to Affordable Housing Agreement Amendment Imposing Restrictions on Real Property recorded July 19, 2019 as Document No. 20 I 9-0293997 in the Official Records of the San Diego County Recorder's Office. (2) Promissory Note dated RVJUSt J.I) .,20J1from Borrower to Subordinated Lender in the amount of$ .3~ lt-000. '1'D (3) Deed of Trust and Security Agreement dated @!!!_.SJ ~-_, 2011 by Borrower for the benefit of Subordinated Lender to secure a loan inihe amount of $ 35 J, ODO. ~, to be recorded in the Official Records of the San Diego County Recorder's Office concurrently herewith. (4) Resale Restriction Agreement and Option to Purchase dated %of:ur1~/f>,2o_JJ_ between Borrower and Subordinated Lender, to be recorded in the Official Records of the San Diego County Recorder's Office concurrently herewith. 4842-7210-8112.4 11/13/17