HomeMy WebLinkAboutEvers, Allyson O; 2006-08-26;NOTICE TO BORROWER:
THIS NOTE IS NOT ASSUMABLE
PROMISSORY NOTE
Secured by Homebuyer Deed of Trust
(Laguna Pointe)
$322,000 / Carlsbad, California
_,2006
FOR VALUE RECEIVED, the undersigned Allvson? Evers
• (the "Borrower") promises to pay to the
City of Carlsbad, a municipal corporation (the "City"), or order, at the Housing and
Redevelopment Department, 2965 Roosevelt Street, Suite B, Carlsbad, California 92008-2389,
or such other place as the City may designate in writing, the principal sum of three hundred
twenty-two thousand Dollars ($322,000 X plus Contingent Interest calculated
pursuant to Section 3 below, plus any amounts due the City as Excess Sales Proceeds and Excess
Rental Proceeds pursuant to the Resale Restriction Agreement and Option to Purchase (the
"Resale Agreement") by and between Borrower and City of even date herewith.
' 1. Purpose of Loan. Bo/rower is purchasing the Home (as defined below) located at
579 Laguna A¥efttte/Vg/'v£ Kty> in tne City of Carlsbad. This Promissory Note (the
"Note") evidences a loan assigned from Wave Crest Resorts II, LLC, a California limited
liability company (the "Seller") to the City. When the Seller sold the Home, the Seller made a
loan to Borrower. To make that loan, the Seller used Low and Moderate Income Housing funds
provided by Carlsbad Redevelopment Agency (the "Agency") and other funds derived from the
Seller's inclusionary obligations to the City under that certain affordable Housing Agreement
dated November 17, 2003 by and between City and Developer. The Seller's initial loan to
Borrower has been assigned by the Seller to the City and such assigned loan is evidenced by this
Note and shall be referred to in this Note as the "Homebuyer Loan".
The principal amount of the Homebuyer Loan as set forth above is equal to the amount
determined by the City to be necessary for the Borrower to afford to purchase the Home making
a reasonable downpayment and using conventional first mortgage financing for the balance of
the purchase price not financed by the Homebuyer Loan. Because the Home has been made
affordable to Borrower, the Borrower is required and has agreed to execute a Resale Agreement
(as defined below) which restricts the price of the Home upon resale for a period of forty-five
(45) years and which requires the Borrower to pay any Excess Rental Proceeds and Excess Sales
Proceeds to the City. This Note evidences both (a) the obligation of Borrower to repay the
Homebuyer Loan evidenced by this Note and (b) the obligation of Borrower to pay any Excess
Sales Proceeds and Excess Rental Proceeds to the City pursuant to the Resale Agreement.
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2. Definitions. The terms set forth in this section shall have the following meanings
in this Note.
a. "Appreciation Amount" shall mean the amount calculated by subtracting
the total original purchase price of the Home paid by the Borrower, which was four hundred
forty-seven thousand Dollars ($447,000 ), from one of the following amounts, as
applicable: (i) in the event of a sale of the Home, the amount received by the Borrower as the
sale price of the Home, as certified by the Borrower pursuant to Section 15d or Section 17 of the
Resale Agreement below; or (ii) in the event of a prepayment of this Note, a Transfer other than
sale of the Home, or in the event of a default, the Fair Market Value of the Home; or (iii) in the
event a creditor acquires title to the Home through a deed in lieu of foreclosure, a trustee's deed
upon sale, or otherwise, the amount paid for the Home at a creditor's sale of the Home; or (iv) in
the event of payment at the expiration of the forty-five (45) year term the Fair Market Value of
the Home.
b. "Contingent Interest" shall mean the percentage of the Appreciation
Amount set out in Section 4.
c. "Domestic Partner" shall have the meaning set forth in Section 7 of the
Resale Agreement.
d. "Excess Rental Proceeds" shall have the meaning set forth in Section 4 of
the Resale Agreement.
e. "Excess Sales Proceeds" shall have the meaning set forth in Section 16 of
the Resale Agreement.
f. "Fair Market Value" shall be determined by a real estate appraisal made
by an independent residential appraiser designated by the City. If possible, the appraisal shall be
based upon the sales prices of comparable properties sold in the market area during the preceding
three (3)-month period. The cost of the appraisal shall be paid by the Borrower. Nothing in this
subparagraph shall preclude the Borrower and the City from establishing the Fair Market Value
of the Home by mutual agreement in lieu of an appraisal.
g. "First Mortgage" shall mean the promissory note and deed of trust
evidencing and securing the first mortgage loan for the Home.
h. "Home" shall mean the housing unit and land encumbered by the deed of
trust executed in connection with this Note.
i. "Homebuyer Deed of Trust" shall mean the second deed of trust of even
date herewith by Borrower for the benefit of the City recorded against title to the Home and
securing this Note and the Resale Agreement.
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j. "Maximum Restricted Resale Price" shall have the same meaning as set
forth in Section 14 of the Resale Agreement.
k. "Resale Agreement" shall mean the Resale Restriction Agreement and
Option to Purchase executed by the Borrower and the City in connection with the Homebuyer
Loan.
1. "Transfer" shall mean any sale, assignment or transfer, voluntary or
involuntary, of any interest in the Home, including, but not limited to, a fee simple interest, a
joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an interest
evidenced by a land contract by which possession of the Home is transferred and the Borrower
retains title or a deed of trust. Any Transfer without satisfaction of the provisions of this Note is
prohibited. A transfer: (i) to an existing spouse or Domestic Partner who is also an obligor
under the Note; (ii) by a Borrower to a spouse or Domestic Partner where the spouse becomes
the co-owner of the Home; (iii) between spouses as part of a marriage dissolution proceeding;
(iv) to an existing spouse or Domestic Partner of the Borrower by devise or inheritance following
the death of the Borrower; (v) by the Borrower into an inter vivos revocable trust in which the
Borrower is the beneficiary and which does not relate to a right of occupancy to the Home; (vi)
by deed of trust or imposition of a lien subordinate to the Homebuyer Deed of Trust; or (vii) by
refinance of the First Mortgage meeting the requirements of Section 28 of the Resale Agreement,
shall not be considered a Transfer for the purposes of this Note; provided, however, that the
Borrower shall continue to occupy the Home as his or her principal place of residence (except
where the transfer occurs pursuant to subsection (iii) or (iv) above, in which event the transferee
shall owner-occupy the Home and affirmatively assume Owner's obligations under this Note, the
Homebuyer Deed of Trust, and the Resale Agreement) and the Borrower shall provide written
notice of such transfer to the City pursuant to Section 8 of the Resale Agreement.
3. Security. This Note is secured by the Homebuyer Deed of Trust.
4. Contingent Interest. The Borrower shall pay contingent interest equal to fifty
percent (50_%) of the Appreciation Amount (the "Contingent Interest"). No interest other than
Contingent Interest shall be due hereunder. The Contingent Interest shall be paid to the City at
the time set forth in Section 6 below. Borrower acknowledges that the Contingent Interest
percentage amount is equal to the Homebuyer Loan principal amount as a percentage of the total
purchase price of the Home paid by the Borrower at the time of purchase, multiplied by seventy-
five one hundredths (.75). Borrower acknowledges that this calculation of the percentage of the
Appreciation Amount due to the City as Contingent Interest includes a twenty-five percent
(25%) discount to Borrower to account for any capital improvements Borrower may make to the
Home.
5. Term. The Term of this Note shall mean the period commencing on the date of
this Note and expiring on the date forty-five (45) years thereafter.
6. Repayment. The total amount of the principal and any Contingent Interest owed
under this Note (including Excess Sales Proceeds due to the City pursuant to the Resale
Agreement) shall immediately become due and payable (i) in the event of a default by the
1010\19\345385.1
Borrower under this Note, the Resale Agreement, the Homebuyer Deed of Trust, or the First
Mortgage, (ii) on the date Transfer is made whether voluntarily, involuntarily, or by operation of
law and whether by deed, contract of sale, gift, devise, bequest or otherwise, (iii) in the event
Borrower ceases to occupy the Home as his or her principal place of residence; or (iv) at the end
of the Term of this Note as described above in Section 5. Failure to declare such amounts due
shall not constitute a waiver on the part of the City to declare them due in the event of a
subsequent Transfer.
7. Late Payment Fees. If any payment due hereunder is not paid within five (5) days
from the date such becomes due, Borrower shall pay a reasonable late or collection charge equal
to five percent (5%) of the amount so unpaid. The City and Borrower agree that the actual
damages and costs sustained by the City due to the failure to make timely payments would be
extremely difficult to measure and that the charges specified in this paragraph represent a
reasonable estimate by Borrower and the City of a fair average compensation for such damages
and costs. Such charges shall be paid by Borrower without prejudice to the right of the City to
collect any other amounts provided to be paid under this Note, the Resale Agreement or the
Homebuyer Deed of Trust or, with respect to late payments, to declare a default.
8. Prepayments. The Borrower may prepay all or part of the balance due under this
Note including principal and Contingent Interest. In the event the entire amount of principal due
under this Note is prepaid, all Contingent Interest, calculated as of the date of prepayment, shall
also be due at the time of prepayment. In the event of partial prepayment, the amount of
Contingent Interest due upon prepayment shall be determined at the time of any partial
prepayment based on the Fair Market Value of the Home. Partial prepayments shall be allocated
between payment of Contingent Interest and payment of principal in the same proportion as the
ratio of each to the total amount due (principal and interest) at the time of prepayment.
Following a prepayment, the percentage of Contingent Interest due the City shall be recalculated
to reflect the paydown in principal owed the City. The recalculated Contingent Interest shall
equal the outstanding principal amount of the Note divided by the original purchase price of the
Home paid by the Borrower. If the principal and shared Appreciation under this Note are
entirely prepaid, the Homebuyer Deed of Trust shall remain on title to the Home to secure
compliance with the Resale Agreement and payment of excess Proceeds. Notwithstanding any
prepayment of amounts due under this Note, the Resale Agreement shall continue in full force
and effect for the period of time set forth in Section 25 of the Resale Agreement.
9. Assumption of Note. The Borrower acknowledges that this Note is given in
connection with the purchase of the Home as part of programs of the City and Agency to assist in
the purchase of homes by lower income persons. Consequently, this Note is assumable only by
Eligible Purchasers (as defined in Section 15B of the Resale Agreement) of the Home. The Note
is due in full upon all other Transfers (as defined in Section 7 of the Resale Agreement). 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 new forty-five(45)
year terms in forms approved by the City. Any Eligible Purchaser assuming the Note shall be
obligated to ensure that the new deed of trust and resale restriction agreement shall remain in at
least the same order of priority as the Homebuyer Deed of Trust and Resale Agreement.
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10. Maintenance; Taxes: Insurance. Borrower shall maintain the Home in good repair
and in a neat, clean and orderly condition. Borrower shall promptly pay all property taxes due
on the Home prior to any delinquency and shall comply with the insurance requirements set forth
in the Homebuyer Deed of Trust and Resale Agreement.
11. Refinance of First Mortgage Loan. The outstanding principal and interest on this
Note shall not be due upon prepayment and refinance of the First Mortgage, and the Resale
Agreement and Homebuyer Deed of Trust shall be subordinated to the refinanced loan, provided
that the refinance meets the requirements of section 28 of the Resale Agreement.
12. Default.
a. The Borrower shall be in default under this Note if he or she is in default
under the First Mortgage following the expiration of First Mortgage cure periods, or if, after the
notice and cure period provided by the City to the Borrower pursuant to the notice and cure
provisions of the Homebuyer Deed of Trust, the Borrower (i) fails to pay any money when due
under this Note; (ii) breaches any representation or covenant made in this Note or Resale
Agreement in any material respect; or (iii) breaches any provision of the Homebuyer Deed of
Trust. In the event of default by Borrower pursuant to this Section, Borrower shall pay any
Excess Sales Proceeds required by Section 15 of the Resale Agreement.
13. Acceleration. Upon the occurrence of a default under this Note, the Resale
Agreement, the Homebuyer Deed of Trust, or the First Mortgage, the City shall have the right to
declare the full amount of the principal along with any Contingent Interest under this Note
immediately due and payable. Any failure by the City to pursue its legal and equitable remedies
upon default shall not constitute a waiver of the City's right to declare a default and exercise all
of its rights under this Note, the Resale Agreement, and the Homebuyer Deed of Trust. Nor shall
acceptance by the City of any payment provided for herein constitute a waiver of the City's right
to require prompt payment of any remaining principal and interest owed.
14. No Offset. The Borrower hereby waives any rights of offset it now has or may
later have against the City, its successors and assigns, and agrees to make the payments called for
in this Note in accordance with the terms of this Note.
15. Waiver; Attorney Fees and Costs. The Borrower and any endorsers or guarantors
of this Note, for themselves, their heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest,
dishonor and non-payment of this Note, and expressly waive any rights to be released by reason
of any extension of time or change in terms of payment, or change, alteration or release of any
security given for the payments hereof, and expressly waive the right to plead any and all statutes
of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incurred, including reasonable attorney
fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs
and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys'
fees in such action.
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16. No Waiver by the City. No waiver of any breach, default or failure of condition
under the terms of this Note shall be implied from any failure of the City to take action with
respect to such breach, default or failure or from any previous waiver of any similar or unrelated
breach, default or failure.
17. Notices. All notices required in this Note 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 Borrower:
At the address of the Home.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attention: Housing and Redevelopment Director
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
18. Joint and Several Obligations. This Note is the joint and several obligations of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors
and assigns.
19. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
borrower and lender, 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 Home 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 Home 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
Home and will hold the 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, and reasonable attorneys'
fees that the City may incur as a direct or indirect consequence of:
1010\19\345385.1
a. the making of the loan to Borrower;
b. Borrower's failure to perform any obligations as and when required by the
Note, the Resale Agreement or the Homebuyer Deed of Trust; of
c. the failure at any time of any of Borrower's representations to the Seller or
the City to be true and correct.
21. Termination of Restrictions. Any legal restrictions on conveyance of the Home
(as defined in 24 CFR 203.41(a)(3)) included in this Note shall terminate upon transfer of the
Home by foreclosure, deed in lieu of foreclosure, or assignment to the Secretary of the United
States Department of Housing and Urban Development.
22. Controlling Law. This Note shall be construed in accordance with and be
governed by the laws of the State of California.
23. Assignment by City. The City may assign its right to receive the proceeds under
this Note to any person and upon notice to the Borrower by the City all payments shall be made
to the assignee.
24. Invalid Provisions. If any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions contained in
this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained in this Note.
25. Entire Agreement. This Note (along with the Resale Agreement and Homebuyer
Deed of Trust) sets forth the entire understanding and agreement of the City and the Borrower
and any amendment, alteration or interpretation of this Note must be in writing signed by both
the City and the Borrower.
BORROWER
0.
(Print Name)
(Print Name)
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' RECORDING REQUESTED BY
STEWART TITLE OF CALIFORNIA
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
DOC# 2006-0625088
AUG 31, 2006 4:59 PM
OFFICIAL RECORDS
SAN DIEhO COUNTY RECORDER'S OFFICE
GREGORYJ SMITH,COUNTY RECORDER
FEES 0.00 WAYS: 2
PAGES: 15 DA: 1
2006-0625088
(Space above for Recorder's Use)
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
THIS DEED OF TRUST IS SECOND
AND SUBSEQUENT TO A DEED OF
TRUST RECORDING CONCURRENTLY
HEREWITH
this
A
Inc.
DEED OF TRUST
AND SECURITY AGREEMENT
(Laguna Pointe)
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
day rtfll/£l/S'f , 2006, among ALLy3d/(J. Q. EV&ftS. _
("Borrower") as trustor. 'and Stewart Title of CaliforniaT~~
("Trustee"), and the City of Carlsbad, a municipal
corporation (the "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
property located in the City of Carlsbad, State of California, described in the attached Exhibit A
(the "Property").
TOGETHER with all the improvements now or hereafter erected on the property, and all
easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of
which, including replacements and additions thereto, shall be deemed to be and remain a part of the
property covered by this Deed of Trust; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to or
used in and about the building or buildings now erected or hereafter to be erected on the Property
which are necessary to the complete and comfortable use and occupancy of such building or
buildings for the purposes for which they were or are to be erected, including all other goods and
1010\19\345301.2
40984
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";
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 twenty-two thousand Dollars ($322,000 )
executed by the Borrower to the City as of the date of this Deed of Trust (the "Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained; and
TO SECURE to the City the performance of the covenants and agreements of Borrower
contained in that certain Resale Restriction Agreement and Option to Purchase executed by and
between the Borrower and the City of even date herewith (the "Resale Agreement") and to secure
the payment of Excess Sales Proceeds (as defined in the Resale Agreement) that may become due
by Borrower to City;
TO SECURE the performance of any obligations of Borrower in any other agreements with
respect to the financing of the Property or the Security the failure of which would adversely affect
Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Borrower's Estate. That the Borrower is lawfully seized of the estate hereby
conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the
Security is encumbered only by: (a) that deed of trust executed by the Borrower in connection with
a loan made to the Borrower by ftMttlCAS tJ/M0/£S4/£ l£A/&E£- or
its successors and assigns (the "First Lender"), dated AUGUST £ </ . 2006, executed by the
Borrower in favor of First Lender, and recorded in the County of San Diego on _*** ,
2006, and assigned Recorder's Serial No. *** (the "First Lender Deed of Trust"), securing
a promissory note executed by the Borrower in favor of the First Lender ("First Lender Note"), to
assist in the purchase of the Property; and (b) the Resale Agreement. The Borrower agrees to
warrant and defend generally the title to the Security against all claims and demands, subject to any
declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title
insurance policy insuring the City's interest in the Security. (As used in this Deed of Trust, the term
"First Lender" shall include all successors and assigns of the First Lender.)
2. Repayment of Loan. The Borrower will promptly repay, when due, the principal,
interest and other sums required by the Note and Resale Agreement, including all principal and
*** Recorded concurrently herewith
1010\19\345301.2
40985
interest on the Homebuyer Loan (as defined in the Note) and the Excess Sales Proceeds. The Note
contains the following provisions prohibiting assumption:
"The Borrower acknowledges that this Note is given in connection with the purchase of the
Home as part of programs of the City and Agency to assist in the purchase of homes by lower
income persons. Consequently, this Note is assumable only by Eligible Purchasers (as defined in
Section 15B of the Resale Agreement) of the Home. The Note is due in full upon all other
Transfers (as defined in Section 7 of the Resale Agreement). 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 new forty-five(45) year terms in forms approved by the City. Any
Eligible Purchaser assuming the Note shall be obligated to ensure that the new deed of trust and
resale restriction agreement shall remain in at least the same order of priority as the Homebuyer
Deed of Trust and Resale Agreement."
3. First Lender Loan. The Borrower will observe and perform all of the covenants and
agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender loan
documents.
4. Resale Agreement. The Borrower will observe and perform all of the covenants and
agreements of the Resale Agreement.
5. Charges: Liens. The Borrower will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority over this Deed of
Trust, by the Borrower making any payment, when due, directly to the payee thereof. Upon request
of City, 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 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 an all-risk property
insurance policy in at least an amount equal to the replacement cost of the Security (adjusted every
five (5) years by appraisal if requested by City) naming the City as an additional insured and loss
payee. If the Security is located in a flood plain, borrower shall obtain flood insurance. In no event
shall the amount of insurance be 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 Home
Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing
and Urban Development, the United States Department of Veterans Affairs, or successors thereto.
1010\19\345301.2
4098«
All insurance policies and renewals thereof will be in a form acceptable to the City and will
include a standard mortgagee clause with standard lender's endorsement in favor of the holder of
the First Lender Note and the City as their interests may appear and in a form acceptable to the
City. The City shall have the right to hold, or cause its designated agent to hold, the policies and
renewals thereof, and the Borrower shall promptly furnish to the City, or its designated agent, the
original insurance policies or certificates of insurance, all renewal notices and all receipts of paid
premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and
the City or its designated agent. The City, or its designated agent, may make proof of loss if not
made promptly by the Borrower. The City shall receive thirty (30) days advance notice of
cancellation of any insurance policies required under this section.
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 loan evidenced by 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 in a neat clean and orderly condition and will not commit waste or permit impairment
or deterioration of the Security. If there arises a condition in contravention of this section, and if
the Borrower has not cured such condition within thirty (30) days after receiving a City notice of
such a condition, then in addition to any other rights available to the City, the City shall have the
right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or
enforce a lien or other encumbrance against the Security to recover its cost of curing.
8. Protection of the City's Security. If the Borrower fails to perform the covenants and
agreements contained in this Deed of Trust, the Resale Agreement, the First Lender Note, the First
Lender Deed of Trust, or if any action or proceeding is commenced which materially affects the
City's interest in the Security, including, but not limited to, default under the First Lender Deed of
Trust, the First Lender Note or any other deed of trust encumbering the Property, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent,
then the City, at the City's option, upon notice to the Borrower, may make such appearances,
disburse such sums and take such action as it determines necessary to protect the City's interest,
including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security
to make repairs.
1010\19\345301.2
40987
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. Hazardous Substances. Borrower shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not
do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage
on the Property of small quantities of Hazardous Substances that are generally recognized to be
appropriate to normal residential uses and to maintenance of the Property.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
Borrower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving the
Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any
removal or other remediation of any Hazardous Substance affecting the Property is necessary,
Borrower shall promptly take all necessary remedial actions in accordance with Environmental
Law.
11. Nondiscrimination. The Borrower 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 Borrower or any person claiming under or through the Borrower establish or
permit any such practice or practices of discrimination or segregation with reference to the use,
occupancy, or transfer of the Home. The foregoing covenant shall run with the land.
12. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
Borrower and lender and Borrower and the administrator of the City inclusionary and affordable
homeownership 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
1010\19\345301.2
40988
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.
13. Indemnity. Borrower agrees to defend, indemnify, and hold the City of Carlsbad
and the Carlsbad Redevelopment Agency harmless from all losses, damages, liabilities, claims,
actions, judgments, costs, and reasonable attorneys' fees that the City may incur as a direct or
indirect consequence of:
a. 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.
14. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of
the Borrower in the Note, Resale Agreement or this Deed of Trust, including, but not limited to, the
covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to acceleration,
will send, in the manner set forth in Section 24 of this Deed of Trust, notice to the Borrower
specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a
date, not less than thirty (30) days from the date the notice is effective as set forth in Section 24 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. The notice will
also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to bring
a court action to assert the nonexistence of default or any other defense of the Borrower to
acceleration and sale. If the breach is not curable or is not cured on or before the date specified in
the notice, the City, at the City's option, may: (a) declare all of the sums secured by this Deed of
Trust to be immediately due and payable without further demand and may invoke the power of sale
and any other remedies permitted by California law; (b) either in person or by agent, with or
without bringing any action or proceeding, or by a receiver appointed by a court, and without
regard to the adequacy of its security, enter upon the Security and take possession thereof (or any
part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any
acts which it deems necessary or desirable to preserve the value or marketability of the Security, or
part thereof or interest therein, increase the income 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
1010\19\345301.2
40989
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.
15. Acceleration. Upon the occurrence of a default under the Note, the Resale
Agreement, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City
shall have the right to declare the full amount of the principal along with any interest under the
Note immediately due and payable. Any failure by the City to pursue its legal and equitable
remedies upon default shall not constitute a waiver of the City's right to declare a default and
exercise all of its rights under the Note, the Resale Agreement, and this Deed of Trust. Nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed.
16. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums
secured by this Deed of Trust, the Borrower will have the right to have any proceedings begun by
the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of
the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to
entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all sums, if any,
which would be then due under this Deed of Trust and no acceleration under the Note has occurred;
(b) the Borrower cures all breaches of any other covenants or agreements of the Borrower
contained in the Note, Resale Agreement or this Deed of Trust; (c) the Borrower pays all
reasonable expenses incurred by City and the Trustee in enforcing the covenants and agreements of
the Borrower contained in the Note, Resale Agreement or 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 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.
17. 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.
18. 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.
19. Reconveyance. Upon payment of all sums secured by this Deed of Trust and the
expiration of the Resale Agreement, 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
1010\19\345301.2
40990
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,
20. 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.
21. 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.
22. 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.
23. Joint and Several Liability. All covenants and agreements of the Borrower shall be
joint and several.
24. Notice. Except for any notice required under applicable law to be given in another
manner, all notices required in this Deed of Trust shall be sent by certified mail, return receipt
requested or express delivery service with a delivery receipt, or personally delivered with a delivery
receipt obtained, and shall be deemed to be effective as of the date shown on the delivery receipt as
the date of delivery, the date delivery was refused, or the date the notice was returned as
undeliverable as follows:
To the Owner:
At the address of the Residence.
1010\19\345301.2
40991
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Redevelopment Director
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
25. Controlling Law. This Deed of Trust shall be construed in accordance with and be
governed by the laws of the State of California.
26. Invalid Provisions. If any one or more of the provisions contained in this Deed of
Trust, Resale Agreement or the Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from the
remaining provisions, and this Deed of Trust, the Resale Agreement and the Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in this
Deed of Trust, Resale Agreement or the Note.
27. 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.
28. Request for Notice.
City requests that copies of the notice of default and notice of sale be sent to City at the address set
forth in Section 24 above.
1010\19\345301.2
40992
IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date first
written above.
Borrower
0.
(Prin1/Name)
Borrower
(Print Name)
1010\19\345301.2 10
40993
State of California
County of
2006, before me.fcV"%CVOa A'nfsU\Y"\h . NotaryOn
Public, personally appeared f-\\\mSor\ C . F: VfLT5 personally known to me (or proved to
me on the basis of satisfactory eviaence) to be the person^ whose name(«^ is/arc subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in hfs/her/tjse'ir
authorized capacity(jcs), and that by Iffe/her/tHeir signature^ on the instrument the person^, or
the entity upon behalf of which the person^ acted, executed the instrument.
WITNESS my hand and official seal.
Signature fL
Commtaton* 1656206
Notary PuWte-CoWOmta
State of California
County of
On
Public, personally appeared
, 2006, before me,, Notary
, personally known to me (or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature (Seal)
1010\19\345301.2
40994
EXHIBIT A
Property Description
1010\19\345301.2
40995
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF San Diego AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM LOCATED ON THE REAL PROPERTY DESCRIBED AS LOT 1
OF CITY OF CARLSBAD TRACT NO. 01-13, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14797, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MAY 17, 2004 AS FILE NO.
2004-0446317 OF OFFICIAL RECORDS, COMPRISED OF:
PARCEL 1:
UNIT 579, AS SHOWN UPON THAT CERTAIN CONDOMINIUM PLAN
FOR LACUNA POINT, AS RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538003, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN DIEGO
COUNTY, CALIFORNIA ("CONDOMINIUM PLAN").
PARCEL 2:
AN UNDIVIDED 1/21ST INTEREST AS A TENANT IN COMMON IN THE
UNDIVIDED INTEREST COMMON AREA AS SHOWN AND DEFINED ON THE
CONDOMINIUM PLAN AND AS DESCRIBED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LAGUNA POINT
HOMEOWNERS ASSOCIATION, RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538002, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN
DIEGO COUNTY, CALIFORNIA ("DECLARATION"). THE UNDIVIDED
INTEREST COMMON AREA WILL NOT BE OWNED BY LAGUNA POINT
HOMEOWNERS ASSOCIATION, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT
CORPORATION ("ASSOCIATION").
PARCEL 3:
NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, ACCESS, ENJOYMENT,
USE AND SUPPORT OVER THE ASSOCIATION PROPERTY AS DESCRIBED IN
THE DECLARATION AND INDICATED ON THE CONDOMINIUM PLAN, WHICH
WILL BE OWNED BY THE ASSOCIATION.
EXCEPTING THEREFROM THE FOLLOWING:
(a) ALL UNITS, AS SHOWN UPON THE CONDOMINIUM PLAN OTHER THAN
THE UNIT CONVEYED AS PARCEL 1 ABOVE.
(b) THE EXCLUSIVE RIGHT OF POSSESSION AND OCCUPANCY OF ALL
THOSE AREAS DESIGNATED AS EXCLUSIVE USE ASSOCIATION PROPERTY AS
DESCRIBED IN THE DECLARATION AND AS SHOWN UPON THE CONDOMINIUM
PLAN WHICH ARE SET ASIDE AND ALLO GATED FOR THE EXCLUSIVE USE
OF OWNERS OF UNITS.
(c) THE EASEMENT AND OTHER RIGHTS RESERVED IN FAVOR OF
DECLARANT AS DESCRIBED IN THE DECLARATION AND ON THE
CONDOMINIUM PLAN
PARCEL 4:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS D-579.
PARCEL 5:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS S-579.
PARCEL 6:
ONE CLASS A MEMBERSHIP IN THE ASSOCIATION.i
GRANTEES IN ACCEPTING THIS DEED AND THE CONVEYANCE HEREUNDER DO
HEREBY AGREE, JOINTLY AND SEVERALLY FOR THE BENEFIT OF GRANTOR
AND FOR THE BENEFIT OF THE ASSOCIATION AND EACH AND EVERY ONE
OF THE MEMBERS OF SAID ASSOCIATION THAT GRANTEES WILL PROMPTLY,
FULLY, AND FAITHFULLY COMPLY AND CONFORM TO THE DECLARATION,
THE RULES AND REGULATIONS FROM TIME TO TIME PRESCRIBED
THEREUNDER BY THE BOARD OF DIRECTORS OF THE ASSOCIATION OR ITS
OFFICERS AND IN PARTICULAR, GRANTEES DO HEREBY AGREE, JOINTLY
AND SEVERALLY, TO PROMPTLY PAY IN FULL ANY DUES, FEES OR
ASSESSMENTS LEVIED BY SAID ASSOCIATION ON THE MEMBERSHIP
CONVEYED HEREBY.
THE OBLIGATIONS OF GRANTEES HEREIN SET FORTH SHALL BE COVENANTS
RUNNING WITH THE ABOVE DESCRIBED PROPERTY, IT BEING UNDERSTOOD
THAT SAID MEMBERSHIP IN THE ASSOCIATION, AND THE OBLIGATIONS
HEREOF, WILL AUTOMATICALLY PASS TO GRANTEES' SUCCESSORS IN
TITLE IN THE ABOVE DESCRIBED PROPERTY WHETHER SUCH SUCCESSORS
ACQUIRE TITLE BY FORECLOSURE OR OTHERWISE, AND SHALL BE BINDING
UPON THE GRANTEES ABOVE-NAMED THEIR HEIRS, DEVISEES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS, PROVIDED THAT GRANTEES
AND THEIR SAID SUCCESSORS IN TITLE SHALL BE BOUND BY THE
FOREGOING COVENANTS ONLY AS LONG AS THEY RESPECTIVELY ARE IN
TITLE TO THE ABOVE DESCRIBED PROPERTY.
THE FOLLOWING PROVISIONS (THE "RIGHT TO REPAIR PROVISIONS")
PERTAINING TO MATTERS CONCERNING TITLE 7 OF PART 2 OF DIVISION
2 OF THE CALIFORNIA CIVIL CODE (THE "RIGHT TO REPAIR LAW")
SHALL APPLY TO THE DEED:
(a) GRANTEES ACKNOWLEDGE THAT GRANTOR HAS PROVIDED AND GRANTEES
40997
HAVE RECEIVED THE DOCUMENTS PROVIDED TO GRANTEES IN CONJUNCTION
WITH THIS ORIGINAL TRANSFER OF THE CONDOMINIUM, INCLUDING
GRANTORS'S FIT AND FINISH WARRANTY (THE "FIT AND FINISH
WARRANTY") WHICH INCLUDES A ONE YEAR EXPRESS WARRANTY WHICH
ADDRESSES THE STATUTORY REQUIRED COMPONENTS (CABINETS, MIRRORS,
FLOORING, INTERIOR AND EXTERIOR WALLS, COUNTERTOPS, PAINT
FINISHES AND TRIM), AND GRANTOR'S MAINTENANCE RECOMMENDATION
(AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED FROM TIME TO
TIME) . GRANTEES SHALL PROVIDE THE FIT AND FINISH WARRANTY TO
ANY PERSON WHO PURCHASES THE CONDOMINIUM FROM GRANTEES ON OR
BEFORE THE FIRST ANNIVERSARY OF THE DEED RECORDATION DATE, AND
GRANTOR'S MAINTENANCE RECOMMENDATIONS (AS THE SAME MAY BE
AMENDED FROM TIME TO TIME) TO ANY PERSON WHO PURCHASES THE
CONDOMINIUM FROM GRANTEES AT ANY TIME. GRANTEES ACKNOWLEDGE
THEIR OBLIGATION TO FOLLOW THE MAINTENANCE RECOMMENDATIONS
PROVIDED BY GRANTOR, AS WELL AS ANY PRODUCT MANUFACTURERS, AND
COMMONLY ACCEPTED MAINTENANCE PRACTICES.
(b) GRANTOR ADVISES GRANTEES OF THE EXISTENCE OF THE
PRELITIGATION PROCEDURES SET FORTH IN CHAPTER 4 OF THE RIGHT TO
REPAIR LAW AND THAT SUCH PROCEDURES IMPACT THE LEGAL RIGHTS OF
GRANTEES. GRANTEES ACKNOWLEDGE THAT (i) GRANTEES HAVE BEEN
PROVIDED A WRITTEN COPY OF THE RIGHT TO REPAIR LAW, (ii)
GRANTEES HAVE BEEN OFFERED A COMPLETE COPY OF ALL OF PART 2 AND
(iii) A COMPLETE COPY OF PART 2 IS AVAILABLE FROM GRANTOR UPON
REQUEST. GRANTOR INSTRUCTS GRANTEES TO, AND GRANTEES
ACKNOWLEDGES THAT GRANTEES SHALL, PROVIDE SUCH DOCUMENTS TO ANY
SUBSEQUENT PURCHASER OF THE CONDOMINIUM FROM GRANTEES, AND
SHALL REQUIRE ANY SUCH SUBSEQUENT PURCHASER TO PROVIDE SAID .
DOCUMENTS TO ANY PERSON OR ENTITY WHO PURCHASES THE CONDOMINIUM
FROM SUCH SUBSEQUENT PURCHASER.
(c) GRANTEES SHALL INDEMNIFY, DEFEND AND HOLD GRANTOR HARMLESS
FROM ANY LOSS, COST OR DAMAGES ARISING FROM GRANTEES' FAILURE
TO CARRY OUT GRANTEES' OBLIGATIONS UNDER THIS DEED.
yj RECORDING REQUESTED BY
STEWART TITLE OF CALIFORNIA
RECORDING REQUESTED BY:
City of Carlsbad
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
01
DOC# 2006-0625089
AUG31,2006 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G R E G 0 RY J. S MIT H. CO U N TY R E CO R D E R
FEES: 0.00
PAGES: 5 DA: 1
2006-0625089
Title Order No.
A.P.N. ^••o^
REQUEST FOR NOTICE
Space above this line for Recorder's use
Escrow No.:
In accordance with Civil Code, section 2924b, request is hereby made that a copy of any Notjce of Default and a copy of any
Notice of Sale under the Deed of Trust recorded as Instrument No. t^nM^UJiMJiJ^C^ /#f&0iftjn , in Book
NA , Page NA , of Official Records in the County Recorder's Office of San Diego County,
California, executed by Allvson Evers as Trustor in which City of Carlsbad, a municipal corporation is named as
Beneficiary, and Stewart Title of California, Inc. L as Trustee, be
mailed to: City of Carlsbad, City Clerk's Office, 1200 Carlsbad Village Drive, Carlsbad, California 92008 >
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded
request. If your address changes, a new request must be recorded.
Dated:
LISA HILDABRAND
ASSISTANT CITY MANAGER
STATE OF CALIFORNIA} ss COUNTY OF SAN DIEGO
before me
Personally appeared
personally known to me (e e) to be the person(«) whose name(») is/aw subscribed to the within instrument
and acknowledged to me that to/she/t bay-executed the same in JMe/her/UM* authorized capacityO**), and that by bis/her/tfeak signature!*) on the instrument
the person(«) or the entity upon behalf of which the/£ferson(*) acted, executed the instrument.
WITNESS my hai
Signature
ASA Form #018
HARLIB
f1399035
PUBLIC* c -RMA
40999
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: K^Ff /?# l~t£>
COMMISSION
DATE COMMISSION EXPIRES:
COUNTY WHERE BOND IS FILED:
MANUFACTURER OR VENDOR NUMBER:
(LOCATED ON BOTH SIDES OF THE NOTARY SEAL BORDER)
SIGNATURl _
(FIRM NAME IF APPLICABLE)
^/^PLACE OF EXECUTION:
DATED:
41000
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF San Diego AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM LOCATED ON THE REAL PROPERTY DESCRIBED AS LOT 1
OF CITY OF CARLSBAD TRACT NO. 01-13, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14797, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MAY 17, 2004 AS FILE NO.
2004-0446317 OF OFFICIAL RECORDS, COMPRISED OF:
PARCEL 1:
UNIT 579, AS SHOWN UPON THAT CERTAIN CONDOMINIUM PLAN
FOR LACUNA POINT, AS RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538003, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN DIEGO
COUNTY, CALIFORNIA ("CONDOMINIUM PLAN").
PARCEL 2:
AN UNDIVIDED 1/21ST INTEREST AS A TENANT IN COMMON IN THE
UNDIVIDED INTEREST COMMON AREA AS SHOWN AND DEFINED ON THE
CONDOMINIUM PLAN AND AS DESCRIBED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LACUNA POINT
HOMEOWNERS ASSOCIATION, RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538002, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN
DIEGO COUNTY, CALIFORNIA ("DECLARATION"). THE UNDIVIDED
INTEREST COMMON AREA WILL NOT BE OWNED BY LACUNA POINT
HOMEOWNERS ASSOCIATION, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT
CORPORATION ("ASSOCIATION").
PARCEL 3:
NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, ACCESS/, -ENJOYMENT,
USE AND SUPPORT OVER THE ASSOCIATION PROPERTY AS DESCRIBED IN
THE DECLARATION AND INDICATED ON THE CONDOMINIUM PLAN, WHICH
WILL BE OWNED BY THE ASSOCIATION.
EXCEPTING THEREFROM THE FOLLOWING:
(a) ALL UNITS, AS SHOWN UPON THE CONDOMINIUM PLAN OTHER THAN
THE UNIT CONVEYED AS PARCEL 1 ABOVE.
(b) THE EXCLUSIVE RIGHT OF POSSESSION AND OCCUPANCY OF ALL
THOSE AREAS DESIGNATED AS EXCLUSIVE USE ASSOCIATION PROPERTY AS
DESCRIBED IN THE DECLARATION AND AS SHOWN UPON THE CONDOMINIUM
PLAN WHICH ARE SET ASIDE AND ALLO GATED,. FOR , THE EXCLUSIVE USE
OF OWNERS OF UNITS. >"V^>
(c) THE EASEMENT AND OTHER RIGHTS RESERVED IN FAVOR OF
DECLARANT AS DESCRIBED IN THE DECLARATION AND^OTtTTHE"
CONDOMINIUM PLAN
PARCEL 4:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS D-579.
PARCEL 5:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS S-579.
PARCEL 6:
ONE CLASS A MEMBERSHIP IN THE ASSOCIATION.
GRANTEES IN ACCEPTING THIS DEED AND THE CONVEYANCE HEREUNDER DO
HEREBY AGREE, JOINTLY AND SEVERALLY FOR THE BENEFIT OF GRANTOR
AND FOR THE BENEFIT OF THE ASSOCIATION AND EACH AND EVERY ONE
OF THE MEMBERS OF SAID ASSOCIATION THAT GRANTEES WILL PROMPTLY,
FULLY, AND FAITHFULLY COMPLY AND CONFORM TO THE DECLARATION,
THE RULES AND REGULATIONS FROM TIME TO TIME PRESCRIBED
THEREUNDER BY THE BOARD OF DIRECTORS OF THE ASSOCIATION OR ITS
OFFICERS AND IN PARTICULAR, GRANTEES DO HEREBY AGREE, JOINTLY
AND SEVERALLY, TO PROMPTLY PAY IN FULL ANY DUES, FEES OR
ASSESSMENTS LEVIED BY SAID ASSOCIATION ON THE MEMBERSHIP
CONVEYED HEREBY.
THE OBLIGATIONS OF GRANTEES HEREIN SET FORTH SHALL BE COVENANTS
RUNNING WITH THE ABOVE DESCRIBED PROPERTY, IT BEING UNDERSTOOD
THAT SAID MEMBERSHIP IN THE ASSOCIATION, AND THE OBLIGATIONS
HEREOF, WILL AUTOMATICALLY PASS TO GRANTEES' SUCCESSORS IN
TITLE IN THE ABOVE DESCRIBED PROPERTY WHETHER SUCH SUCCESSORS
ACQUIRE TITLE BY FORECLOSURE OR OTHERWISE, AND SHALL BE BINDING
UPON THE GRANTEES ABOVE-NAMED THEIR HEIRS, DEVISEES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS, PROVIDED THAT GRANTEES
AND THEIR SAID SUCCESSORS IN TITLE SHALL BE BOUND BY THE
FOREGOING COVENANTS ONLY AS LONG AS THEY RESPECTIVELY ARE IN
TITLE TO THE ABOVE DESCRIBED PROPERTY.
THE FOLLOWING PROVISIONS (THE "RIGHT TO REPAIR PROVISIONS")
PERTAINING TO MATTERS CONCERNING TITLE 7 OF PART 2 OF DIVISION
2 OF THE CALIFORNIA CIVIL CODE (THE "RIGHT TO REPAIR LAW")
SHALL APPLY TO THE DEED:
(a) GRANTEES ACKNOWLEDGE THAT GRANTOR HAS PROVIDED AND GRANTEES
41002
HAVE RECEIVED THE DOCUMENTS PROVIDED TO GRANTEES IN CONJUNCTION
WITH THIS ORIGINAL TRANSFER OF THE CONDOMINIUM, INCLUDING
GRANTORS'S FIT AND FINISH WARRANTY (THE "FIT AND FINISH
WARRANTY") WHICH INCLUDES A ONE YEAR EXPRESS WARRANTY WHICH
ADDRESSES THE STATUTORY REQUIRED COMPONENTS (CABINETS, MIRRORS,
FLOORING, INTERIOR AND EXTERIOR WALLS, COUNTERTOPS, PAINT
FINISHES AND TRIM), AND GRANTOR'S MAINTENANCE RECOMMENDATION
(AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED FROM TIME TO
TIME) . GRANTEES SHALL PROVIDE THE FIT AND FINISH WARRANTY TO
ANY PERSON WHO PURCHASES THE CONDOMINIUM FROM GRANTEES ON OR
BEFORE THE FIRST ANNIVERSARY OF THE DEED RECORDATION DATE, AND
GRANTOR'S MAINTENANCE RECOMMENDATIONS (AS THE SAME MAY BE
AMENDED FROM TIME TO TIME) TO ANY PERSON WHO PURCHASES THE
CONDOMINIUM FROM GRANTEES AT ANY TIME. GRANTEES ACKNOWLEDGE
THEIR OBLIGATION TO FOLLOW THE MAINTENANCE RECOMMENDATIONS
PROVIDED BY GRANTOR, AS WELL AS ANY PRODUCT MANUFACTURERS, AND
COMMONLY ACCEPTED MAINTENANCE PRACTICES.
(b) GRANTOR ADVISES GRANTEES OF THE EXISTENCE OF THE
PRELITIGATION PROCEDURES SET FORTH IN CHAPTER 4 OF THE RIGHT TO
REPAIR LAW AND THAT SUCH PROCEDURES IMPACT THE LEGAL RIGHTS OF•
GRANTEES. GRANTEES ACKNOWLEDGE THAT (i) GRANTEES HAVE BEEN
PROVIDED A WRITTEN COPY OF THE RIGHT TO REPAIR LAW, (ii)
GRANTEES HAVE BEEN OFFERED A COMPLETE COPY OF ALL OF PART 2 AND
(iii) A COMPLETE COPY OF PART 2 IS AVAILABLE FROM GRANTOR UPON
REQUEST. GRANTOR INSTRUCTS GRANTEES TO, AND GRANTEES
ACKNOWLEDGES THAT GRANTEES SHALL, PROVIDE SUCH DOCUMENTS TO ANY
SUBSEQUENT PURCHASER OF THE CONDOMINIUM FROM GRANTEES, AND
SHALL REQUIRE ANY SUCH SUBSEQUENT PURCHASER TO PROVIDE SAID .
DOCUMENTS TO ANY PERSON OR ENTITY WHO PURCHASES THE CONDOMINIUM
FROM SUCH SUBSEQUENT PURCHASER.
(c) GRANTEES SHALL INDEMNIFY, DEFEND AND HOLD GRANTOR HARMLESS
FROM ANY LOSS, COST OR DAMAGES ARISING FROM GRANTEES' FAILURE
TO CARRY OUT GRANTEES' OBLIGATIONS UNDER THIS DEED.
RECORDING REQUESTED BY:
City of Carlsbad, Housing and Redevelopment
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
DOC# 2007-0603107
SEP 13, 2007 12:50 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G REG 0 RY J. 3 MIT H, CO U N TY R E CO R D E R
FEES: 0.00
PAGES:
REQUEST FOR NOTICE
Space above this line for Recorder's use
In accordance with Civil Code, section 2924b, request is hereby made that a copy of any Notice of Default and a
copy of any Notice of Sale under the Deed of Trust recorded as Instrument No. 2006-0625086 on _8/31706 . in
Book N/A _, Page N/A , of Official Records in the County Recorder's Office of San Diego
County, California, executed by ALLYSON EVERS as Trustor in which MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS is named as Beneficiary, and RECONSTRUST COMPANY, as Trustee, be mailed
to: City of Carlsbad. City Clerk's Office, 1200 Carlsbad Village Drive. Carlsbad, California 92008 >
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded
request. If your address changes, a new request must be recorded.
Dated: August 15, 2007
LISA HILDABRAND
ASSISTANT CITY MANAGER
STATE OF CALIFORNIA } ss COUNTY OF SAN DIEGO )
on 3D aDO7
Q
before me PoTYlGQ L , NOTARY PUBLIC
Personally appeared 1—iSQ
Comrmnon* 1661400
Notary PuMc - CoHWnta
Son dago County
MyComm. Expires Mov24.2010
personally known to me (°r rrr"i'"rl tn IT* "n tho basis pf sPtrf?T*nry mririnnnn) to be the personfyj'whose name(j$ is/are subscribed to the within instrument
and acknowledged to me that he/she/tt»y executed the same in his/her/their authorized capacity(!)ss}, and that by hts/her/their signaturej(J^on the instrument
the persoribfor the entity upon behalf of which the person)^ acted, executed the instrument.
WITNESSjnyJwid and official seal."^ ^
Signature
ASA Form #018
40995
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF San Diego AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM LOCATED ON THE REAL PROPERTY DESCRIBED AS LOT 1
OF CITY OF CARLSBAD TRACT NO. 01-13, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14797, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MAY 17, 2004 AS FILE NO.
2004-0446317 OF OFFICIAL RECORDS, COMPRISED OF:
PARCEL 1:
UNIT 579, AS SHOWN UPON THAT CERTAIN CONDOMINIUM PLAN
FOR LACUNA POINT, AS RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538003, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN DIEGO
COUNTY, CALIFORNIA ("CONDOMINIUM PLAN").
PARCEL 2:
AN UNDIVIDED 1/21ST INTEREST AS A TENANT IN COMMON IN THE
UNDIVIDED INTEREST COMMON AREA AS SHOWN AND DEFINED ON THE
CONDOMINIUM PLAN AND AS DESCRIBED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LACUNA POINT
HOMEOWNERS ASSOCIATION, RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538002, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN
DIEGO COUNTY, CALIFORNIA ("DECLARATION"). THE UNDIVIDED
INTEREST COMMON AREA WILL NOT BE OWNED BY LACUNA POINT
HOMEOWNERS ASSOCIATION, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT
CORPORATION ("ASSOCIATION").
PARCEL 3:
NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, ACCESS, ENJOYMENT,
USE AND SUPPORT OVER THE ASSOCIATION PROPERTY AS DESCRIBED IN
THE DECLARATION AND INDICATED ON THE CONDOMINIUM PLAN, WHICH
WILL BE OWNED BY THE ASSOCIATION.
EXCEPTING THEREFROM THE FOLLOWING:
(a) ALL UNITS, AS SHOWN UPON THE CONDOMINIUM PLAN OTHER THAN
THE UNIT CONVEYED AS PARCEL 1 ABOVE.
(b) THE EXCLUSIVE RIGHT OF POSSESSION AND OCCUPANCY OF ALL
THOSE AREAS DESIGNATED AS EXCLUSIVE USE ASSOCIATION PROPERTY AS
DESCRIBED IN THE DECLARATION AND AS SHOWN UPON THE CONDOMINIUM
PLAN WHICH ARE SET ASIDE AND ALLO GATED FOR THE EXCLUSIVE USE
OF OWNERS OF UNITS.
(c) THE EASEMENT AND OTHER RIGHTS RESERVED IN FAVOR OF
DECLARANT AS DESCRIBED IN THE DECLARATION AND ON THE
CONDOMINIUM PLAN
PARCEL 4:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS D-579.
PARCEL 5:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS S-579.
PARCEL 6:
ONE CLASS A MEMBERSHIP IN THE ASSOCIATION.i
GRANTEES IN ACCEPTING THIS DEED AND THE CONVEYANCE HEREUNDER DO
HEREBY AGREE, JOINTLY AND SEVERALLY FOR THE BENEFIT OF GRANTOR
AND FOR THE BENEFIT OF THE ASSOCIATION AND EACH AND EVERY ONE
OF THE MEMBERS OF SAID ASSOCIATION THAT GRANTEES WILL PROMPTLY,
FULLY, AND FAITHFULLY COMPLY AND CONFORM TO THE DECLARATION,
THE RULES AND REGULATIONS FROM TIME TO TIME PRESCRIBED
THEREUNDER BY THE BOARD OF DIRECTORS OF THE ASSOCIATION OR ITS
OFFICERS AND IN PARTICULAR, GRANTEES DO HEREBY AGREE, JOINTLY
AND SEVERALLY, TO PROMPTLY PAY IN FULL ANY DUES, FEES OR
ASSESSMENTS LEVIED BY SAID ASSOCIATION ON THE MEMBERSHIP
CONVEYED HEREBY.
THE OBLIGATIONS OF GRANTEES HEREIN SET FORTH SHALL BE COVENANTS
RUNNING WITH THE ABOVE DESCRIBED PROPERTY, IT BEING UNDERSTOOD
THAT SAID MEMBERSHIP IN THE ASSOCIATION, AND THE OBLIGATIONS
HEREOF, WILL AUTOMATICALLY PASS TO GRANTEES' SUCCESSORS IN
TITLE IN THE ABOVE DESCRIBED PROPERTY WHETHER SUCH SUCCESSORS
ACQUIRE TITLE BY FORECLOSURE OR OTHERWISE, AND SHALL BE BINDING
UPON THE GRANTEES ABOVE-NAMED THEIR HEIRS, DEVISEES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS, PROVIDED THAT GRANTEES
AND THEIR SAID SUCCESSORS IN TITLE SHALL BE BOUND BY THE
FOREGOING COVENANTS ONLY AS LONG AS THEY RESPECTIVELY ARE IN
TITLE TO THE ABOVE DESCRIBED PROPERTY.
THE FOLLOWING PROVISIONS (THE "RIGHT TO REPAIR PROVISIONS")
PERTAINING TO MATTERS CONCERNING TITLE 7 OF PART 2 OF DIVISION
2 OF THE CALIFORNIA CIVIL CODE (THE "RIGHT TO REPAIR LAW")
SHALL APPLY TO THE DEED:
(a) GRANTEES ACKNOWLEDGE THAT GRANTOR HAS PROVIDED AND GRANTEES
40997
HAVE RECEIVED THE DOCUMENTS PROVIDED TO GRANTEES IN CONJUNCTION
WITH THIS ORIGINAL TRANSFER OF THE CONDOMINIUM, INCLUDING
GRANTORS'S FIT AND FINISH WARRANTY (THE "FIT AND FINISH
WARRANTY") WHICH INCLUDES A ONE YEAR EXPRESS WARRANTY WHICH
ADDRESSES THE STATUTORY REQUIRED COMPONENTS (CABINETS, MIRRORS,
FLOORING, INTERIOR AND EXTERIOR WALLS, COUNTERTOPS, PAINT
FINISHES AND TRIM), AND GRANTOR'S MAINTENANCE RECOMMENDATION
(AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED FROM TIME TO
TIME) . GRANTEES SHALL PROVIDE THE FIT AND FINISH WARRANTY TO
ANY PERSON WHO PURCHASES THE CONDOMINIUM FROM GRANTEES ON OR
BEFORE THE FIRST ANNIVERSARY OF THE DEED RECORDATION DATE, AND
GRANTOR'S MAINTENANCE RECOMMENDATIONS (AS THE SAME MAY BE
AMENDED FROM TIME TO TIME) TO ANY PERSON WHO PURCHASES THE
CONDOMINIUM FROM GRANTEES AT ANY TIME. GRANTEES ACKNOWLEDGE
THEIR OBLIGATION TO FOLLOW THE MAINTENANCE RECOMMENDATIONS
PROVIDED BY GRANTOR, AS WELL AS ANY PRODUCT MANUFACTURERS, AND
COMMONLY ACCEPTED MAINTENANCE PRACTICES.
(b) GRANTOR ADVISES GRANTEES OF THE EXISTENCE OF THE
PRELITIGATION PROCEDURES SET FORTH IN CHAPTER 4 OF THE RIGHT TO
REPAIR LAW AND THAT SUCH PROCEDURES IMPACT THE LEGAL RIGHTS OF
GRANTEES. GRANTEES ACKNOWLEDGE THAT (i) GRANTEES HAVE BEEN
PROVIDED A WRITTEN COPY OF THE RIGHT TO REPAIR LAW, (ii)
GRANTEES HAVE BEEN OFFERED A COMPLETE COPY OF ALL OF PART 2 AND
(iii) A COMPLETE COPY OF PART 2 IS AVAILABLE FROM GRANTOR UPON
REQUEST. GRANTOR INSTRUCTS GRANTEES TO, AND GRANTEES
ACKNOWLEDGES THAT GRANTEES SHALL, PROVIDE SUCH DOCUMENTS TO ANY
SUBSEQUENT PURCHASER OF THE CONDOMINIUM FROM GRANTEES, AND
SHALL REQUIRE ANY SUCH SUBSEQUENT PURCHASER TO PROVIDE SAID .
DOCUMENTS TO ANY PERSON OR ENTITY WHO PURCHASES THE CONDOMINIUM
FROM SUCH SUBSEQUENT PURCHASER.
(c) GRANTEES SHALL INDEMNIFY, DEFEND AND HOLD GRANTOR HARMLESS
FROM ANY LOSS, COST OR DAMAGES ARISING FROM GRANTEES' FAILURE
TO CARRY OUT GRANTEES' OBLIGATIONS UNDER THIS DEED.
BY
•STEWART TITLE OF CALIFORNIA DOC# 2006-0625087
0
RECORDING REQUESTED PURSUANT
TO GOVERNMENT
CODE SECTION 27383
RECORDING REQUESTED BY:
City of Carlsbad
AUG 31, 2006 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Q R E G 0 RY,!, S MIT H, CO LI N T Y R E CO R D E R
FEES: 0.00 WAYS: ;
OC: AFNF
PAGES 30
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
40***'
2006-0625087
(Space above for Recorder's Use)
RESALE RESTRICTION AGREEMENT,
AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM - 2006
Owner: AllysonEvers
£>/?//£
Address of Home: 579 Laguna Avenue
Carlsbad, CA 92008
This Resale, Restriction Agreement and Option to Purchase (the "Agreement") is entered
into as of this ^b day of H M&VST 2006, by and between the City of Carlsbad
(the "City "), Wave Crest Resorts II, LLC, aCalifornialimited liability company (the "Developer ")
and AflvlfrgEfafry AU-y3ori &.&/£'££ (the "Owner ").
RECITALS
A. The City has developed an affordable homeownership program designed to assist
qualified lower income households purchase their homes located within the City of Carlsbad (the
"Homebuyer Program ").
B. In connection with the Homebuyer Program, Wave Crest Resorts II, LLC, a
California limited liability company (the "Seller ") and the City entered into that certain Affordable
Housing Agreement dated November 17, 2003 (the "Affordable Housing Agreement").
1010\19\345304.3
40954
C. Also in connection with the Homebuyer Program, the Developer entered into a loan
agreement with the Carlsbad Redevelopment Agency (the "Agency") dated June 26, 2006 (the
"Agency Loan Agreement").
D. Pursuant to the Agency Loan Agreement and the Affordable Housing Agreement,
the Developer made a loan in the amount of three hundred twenty-two thousand Dollars
($322,000 ) to Owner to purchase a single-family dwelling located in Carlsbad, California on
that certain real property and more particularly described in Exhibit A (the "Home"). The
Developer then assigned this loan to the City (the "Homebuyer Loan").
E. The Homebuyer Loan is made up of Agency Low and Moderate Income Housing
Funds and a City subsidy more particularly described in the Affordable Housing Agreement. In
consideration of the Homebuyer Loan, the Owner agreed to enter into the Agreement.
F. As used in this Agreement, the term "Home " includes both the real property and all
improvements now or hereafter erected on the property and all easements, rights, appurtenances,
and all fixtures now or hereafter attached to the property.
G. The purchase price of the Home is four hundred forty-seven thousand
Dollars ($447.000 ) (the "Purchase Price ").
H. The Owner is receiving a First Lender Loan in the amount of.
_ Dollars ($/#3^. M ) (the "First Lender Loan ") from
ttJtit>J6S4iE L£A/£>£^ _ (the "First Lender "). The First Lender Loan
is secured by a deed of trust dated A<j£tfST <3<-j ^ao & _ , 2006, executed by the
Buyer in favor of First Lender and recorded in the County of San Diego on _*** _
2006, and assigned Recorder's Serial No. _*** _ (the "First Lender Deed of Trust").
I. The Loan is evidenced by a promissory note in the amount of the Loan (the "City
Note "). This Agreement and the City Note shall be secured by a deed of trust (the "City Deed of
Trust ") subordinate to the lien of First Lender Deed of Trust.
J. The purpose of this Agreement is to place resale controls on the Home, to provide
the City an option to purchase the Home at a restricted price and to ensure that the Owner complies
with the Homebuyer Program requirements.
K. The Home is located in the Village Redevelopment Project Area. This agreement
meets the requirements of Health and Safety Code Sections 33334.2 and 33334.3 and permits the
Agency to meet the affordable housing r production requirements of Health and Safety Code
Section 3341 3(b).
L. This Agreement and the City Note require repayment of the loan plus contingent
interest and, in certain instances, payment of excess proceeds of sale and excess rental proceeds.
This Agreement and the City Deed of Trust will remain in full effect as an encumbrance on the
Home after any prepayment of the City Note by the Buyer.
*** RECORDED CONCURRENTLY HEREWITH
1010\19\345304.3
40955
NOW, THEREFORE, in consideration of the benefits received by the Owner and the City,
the Owner and the City agree, as follows:
1.1. 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) "Agency" - Recital C
(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 H.
(5) "City Designated Purchaser" - Section 12B.
(6) "City Note" - Recital H.
(7) "City Option" - Section 12A.
(8) "City Response Notice" - Section 10.
(9) "Eligible Purchaser" Section 15B.
(10) "Excess Rental Proceeds" - Section 4.
(11) "Excess Sales Proceeds" - Section 16.
(12) "Extended Term"-IOC.
(13) "Fair Market Value" - Section 14B.
(14) "First Lender" - Recital G.
(15) "First Lender Deed of Trust " - Recital G
(16) "First Lender Loan" - Recital G.
(17) "Homebuyer Loan" - Recital D.
(18) "Home" - Recital D and Recital F.
(19) "HUD" - Section 30.
1010\19\345304.3
40956
(20) "Initial Term"-1 OB.
(21) "Market Purchaser" - Section 1OC.
(22) "Maximum Restricted Resale Price" - Section 14.
(23) "Median Income" - Section 14A.
(24) "Owner" - first sentence of the Agreement on page 1.
(25) "Owner's Notice of Intent to Transfer" - Section 8.
(26) "Proposed Purchaser" - Section 15A.
(27) "Purchase Price" - Recital F.
(28) "Restricted Future Sales Price" - Section 14A.
(29) "Transfer" - Section 7.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A: Legal Description of Property (Home)
(2) Exhibit B: Form of Owner Occupancy Certification
(3) Exhibit C: Form of Owner's Notice of Intent to Transfer
(4) Exhibit D: Form of Owner Acknowledgement of City Response Notice
(5) Exhibit E: 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 Home is true and correct as of the date first written above, (ii) the Owner
is an Eligible Purchaser, and (iii) the Owner shall occupy the Home as the Owner's principal place
of residence.
3. OCCUPANCY AND LEASING OF HOME
A. The Owner shall occupy the Home as the Owner's principal place of residence
within sixty (60) days of close of escrow on the Homebuyer Loan. Failure by the Owner to occupy
and continue to occupy the Home as the Owner's principal place of residence shall constitute a
default under this Agreement for which the City may exercise its option to purchase pursuant to
1010\19\345304.3 4
40957
i-
Section 21 below. The Owner shall be considered as occupying the Home if the Owner is living in
the unit for at least ten (10) months out of each calendar year. The Owner shall provide an annual
written certification in the form shown in the attached Exhibit B, to the City that the Owner is
occupying the Home as his or her principal place of residence.
4. LEASING OF HOME
The Owner shall not lease the Home to another party. Any lease of the Home in violation of
this Agreement is prohibited, and shall be a default under this Agreement and the City Deed of
Trust. The Owner further agrees that, in the event the Owner leases the Home to a third party in
violation of this section, any rents in excess of the owners monthly housing payment, which
includes the principal mortgage payment and interest, property taxes and insurance, paid to the
Owner by the lessee (the "Excess Rental Proceeds") shall be due and payable to the City
immediately upon receipt thereof by the Owner. Such excess rental proceeds shall be considered a
recourse debt of the Owner to the City, as evidenced by the Note, which the City may collect by
legal action against the Owner and/or by foreclosure under the City Deed of Trust.
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time homebuyer education class offered by
Community Housing Works .
6. MAINTENANCE AND INSURANCE PROCEEDS
A. The Owner shall maintain the Home, including landscaping, in good repair and in a
neat, clean and orderly condition and will not commit waste or permit deterioration of the Home.
Failure by the Owner to maintain the Home shall constitute a default under this Agreement for
which the City may exercise the City Option to purchase the Home pursuant to Section 21 below.
B. The Owner shall maintain a all-risk property insurance coverage on the Home equal
to the replacement value of the Home (adjusted every five (5) years by appraisal, if requested by
City), naming the City as an additional insured. Additional insurance requirements are set forth in
Section 6 of the City Deed of Trust. Owner shall provide City with proof of insurance as part of its
annual occupancy certification pursuant to Section 3.
1. TRANSFER AND SALE RESTRICTIONS
Any Transfer of the Home will be subject to the provisions of this Agreement including,
without limitation, exercise of the City Option pursuant to Section 12 below. "Transfer " shall
mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home,
including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common
interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which
possession of the Home is transferred and Owner retains title, or a deed of trust. Any Transfer
without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not include a
transfer: (i) to an existing spouse or Domestic Partner who is also an obligor under the City Note;
(ii) by the Owner to a spouse or Domestic Partner where the spouse or Domestic Partner becomes
1010\19\345304.3
40958
the co-owner of the Home; (iii) between spouses as part of a marriage dissolution proceeding; (iv)
to an existing spouse or Domestic Partner of Owner by devise or inheritance following the death of
Owner; (v) by Owner into an inter vivos revocable trust in which Owner is the beneficiary and
which does not relate to a transfer of right of occupancy to the Home; (vi) by deed of trust or
imposition of a lien subordinate to the City Deed of Trust or (vii) refinance of the First Lender
Loan meeting the requirements of Section 28 of this Agreement; provided, however, that Owner
shall provide written notice of all such transfers to City pursuant to Section 8 below; and Owner
shall continue to occupy the Home as his or her principal place of residence (except where the
transfer occurs pursuant to subsection (iii) or (iv) above, in which event the transferee shall owner-
occupy the Home and affirmatively assume Owner's obligations under this Agreement, the City
Note and the City Deed of Trust). For the purposes of this Section 7, "Domestic Partners" shall
mean two unmarried people, at least eighteen (18) years of age, who have lived together
continuously for at least one (1) year and who are jointly responsible for basic living expenses
incurred during their domestic partnership. For purposes of this section, an individual shall be
considered a Domestic Partner of Owner upon presentation of an affidavit or other acceptable
evidence by Owner to the City.
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 Home (or, in the event of death of the Owner, the
Owner's heirs), 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 Home and prior to listing of the Home 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 Home, including the following information:
(1) the address of the Home;
(2) the date of purchase of the Home by the Owner;
(3) the purchase price of the Home paid by the Owner at the time of his/her
purchase;
(4) a copy of the HUD-1 Settlement Statement or equivalent document from the
close of escrow on the Owner's purchase of the Home;
(5) the date on which Owner intends to vacate Home;
(6) the date the Home will be placed on the market; and
(7) the name and phone number of the person to contact to schedule inspection
of the Home by the City.
1010\19\345304.3
40959
9. OWNER PREPARATION OF HOME FOR SALE
A. The Owner may not wish to contract with a real estate broker to sell the Home until
the Owner has 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 Home pursuant to
Section 12 below.
B. Following delivery to the City of the Owner's Notice of Intent to Transfer, the
Owner shall prepare the Home for sale, as follows:
(1) within thirty (3 0) days of delivery of the Owner's Notice of Intent to
Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of the
Home by a licensed structural pest control operator;
(2) within the sooner of (a) sixty (60) days from the date of delivery of the
Owner's Notice of Intent 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 Owner's Notice of Intent to
Transfer, the Owner shall allow the City to inspect the Home to determine its physical condition;
(4) if the Home is vacant, the Owner shall maintain utility connections until the
close of escrow on the Transfer;
(5) in the event of purchase of the Home by the City or City Designated
Purchaser, the Owner shall permit a final walk-through of the Home by the City or City Designated
Purchaser, in the final three (3) days prior to close of escrow on the Transfer.
10. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER
City shall respond in writing (the "City Response Notice ") to the Owner's Notice of Intent
to Transfer. The City Response Notice shall inform the Owner of the City's election to proceed
under one (1) of the following two (2) alternatives:
A. City Exercise of City Purchase Option. The City Response Notice may notify the
Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase
the Home. The City Response Notice shall be sent within 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 Term: Owner Sale at a Restricted Sales Price to Eligible Purchaser.
Alternatively, the City Response Notice may notify the Owner that the City or a City Designated
Purchaser will not exercise the City Option to purchase the Home. In this case, if the Owner has
sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
1010\19\345304.3
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Agreement (the "Initial Term "), the City Response Notice shall tell the Owner that the Owner may
proceed to sell the Home to an Eligible Purchaser at a price not to exceed the Maximum Restricted
Resale Price, as set 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 Home, calculated by the
City pursuant to Section 14 below; (4) whether Homebuyer Program assistance from the City may
be available to an Eligible Purchaser, (5) Owner's repayment obligation as required by Section 13.
C. Extended Term Owner Sale to Market Purchaser. If the City Response Notice
notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option to
purchase the Home, and the Owner has sent the Notice of Intent to Transfer between the fifteenth
(15th) and forty-fifth (45th) years of the Term, (the "Extended Term "), the City Response Notice
shall inform Owner that Owner may proceed to sell the Home to a third 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 D, that he/she
has received the City Response Notice and still intends to Transfer the Home.
12. CITY PURCHASE OPTION
A. The Owner agrees that if the Owner decides to Transfer the Home, the City shall
have the option to purchase the Home for the Maximum Restricted Resale Price calculated pursuant
to Section 14 of this Agreement (the "City Option "). The Owner shall pay the City a transaction
fee equal to six percent (6%) of the Maximum Restricted Resale Price if the City or a City
Designated Purchaser exercises the City Option and purchases the Home. The City Option may be
exercised by the City or by a City Designated Purchaser in the City Response Notice. If the City
Response Notice notifies the Owner that the City or a City Designated Purchaser will exercise the
City Option to purchase the Home, the City or the City Designated Purchaser shall purchase the
Home within ninety (90) days of the date of the City Response Notice 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.
1010\19\345304.3
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C. In the event of exercise of the City Option and purchase of the Home by the City or
a City Designated Purchaser, the Owner shall permit a final walk-through of the Home by the City
or the City Designated Purchaser in the final three (3) days prior to close of escrow on the Transfer.
D. The City acknowledges and agrees that the City Option shall only be exercised by
the City or a City Designated Purchaser for the purpose of retaining the Home as an affordable
housing unit and that the Home may only be resold by the City or a City Designated Purchaser as
an affordable housing unit in compliance with the Homebuyer Program and/or other City
affordable housing programs.
13. REPAYMENT OF CITY NOTE
Upon any Transfer of the Home, the outstanding principal and Contingent Interest as well
as other amounts due under the City Note shall be repaid pursuant to the City Note unless (i) the
principal and Contingent Interest are 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 Home, in which event
the outstanding amount of principal and Contingent Interest and other amounts 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 (the "Maximum Restricted Resale Price ") that the Owner shall
receive from the resale of the Home from purchase of the Home by the City or City Designated
Purchaser or from other sale or Transfer by the Owner when the Owner sends the Notice of Intent
to Transfer during the Initial Term shall be the Restricted Future Sales Price or the Fair Market
Value, whichever is less.
A. Restricted Future Sales Price.
(1) The Restricted Future Sales Price of the Home means the sales price of the
Home at the time of purchase by the Owner, as set forth in Recital F to this Agreement, increased
by the percentage of increase in the Median Income from the date of the original purchase of the
Home by the Owner to the date of receipt by the City of the Owner's Notice of Intent to Transfer.
"Median Income " shall mean the median gross yearly income for households in San Diego County,
California, as adjusted for household size (which for one bedroom units will be assumed to include
2 (two) people), as published periodically by the United States Department of Housing and Urban
Development ("HUD"). In the event such income determinations are no longer published by HUD,
or are not updated for a period of at least eighteen (18) months, the City shall provide the
Developer with other income determinations which are reasonably similar with respect to method
of calculation to those previously published by HUD. As of the date of Owner's purchase of the
Home, the Median Income for a household of four persons is sixty-four thousand nine hundred
Dollars ($64.900 ).
1010\19\345304.3
40962
(2) The Restricted Future 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 Home into a "sellable condition ". Items necessary to
put a Home into sellable condition shall be determined by the City, and may include cleaning,
painting and making needed structural, mechanical, electrical, plumbing and fixed appliance repairs
and other deferred maintenance repairs.
B. Fair Market Value. In certain circumstances it may be necessary to determine the
fair market value of the Home without taking account of the resale restrictions imposed by this
Agreement (the "Fair Market Value "). These circumstances include: (1) where the parties wish to
determine if the Restricted Future Sales Price exceeds the Fair Market Value in order to determine
the Maximum Restricted Resale Price pursuant to this section; (2) where the parties wish to
determine if the sales price of the Home 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 term of the City
Note. If it is necessary to determine the Fair Market Value of the Home, 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 Home by mutual agreement in
lieu of an appraisal pursuant to this section.
15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE OPTION
TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the Home to an
Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the Owner may
proceed to sell the Home in compliance with the following requirements:
A. Marketing. The Owner shall use bona fide good faith efforts to sell the Home to an
Eligible Purchaser in compliance with this section, including listing the Home on the Multiple
Listing Service, keeping the Home in an orderly condition, making the Home available to show to
agents and prospective buyers, and providing buyers with Eligible Purchaser requirements,
including income qualifications and the City's form of disclosure statement summarizing the terms
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 determine 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:
1010\19\345304.3 10
40963
(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 Home as to his or her principal place of residence throughout his or her ownership.
Co-signers are not required to occupy the Home.
(3) Agreement to Sign Resale Restriction Agreement and to Cooperate with the
City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting future
resale of the Home and shall agree to cooperate fully with the City in promptly providing all
information requested by the City to assist the City in monitoring the Proposed Purchaser's
compliance with the resale restriction agreement.
C. Maximum Restricted Resale Price. The purchase price for the sale of the Home by
the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set 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.
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 Home. Said documents shall include at least the following
terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for the Owner's
personal Home, if any, for the services of the Owner, if any, and any credits, allowances or other
consideration, if any.
(4) A written 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 property, 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 Home or file an action at law or in equity as may be
1010\19\345304.3
40964
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 agreement and deed of trust to the City from the
Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is receiving
assistance from the Homebuyer Program, a promissory note to the City shall also be required. The
recordation of the new deed of trust and buyer's resale agreement shall be a condition of the City's
approval of the proposed sale.
(6) The name of the title company escrow holder for the sale of the Home, the
escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, certified copies of the recorded City
deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement statement,
escrow instructions, and any other documents which the City may reasonably request.
16. PAYMENT TO CITY OF EXCESS SALES PROCEEDS
If the Owner makes a Transfer in violation of this Agreement at any time during the Initial
Term or Extended Term, the Owner shall pay the Excess Sales Proceeds to the City. 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 Home (in the amount that was stated in the City
Response Notice). This amount shall be a debt of the Owner to the City, further evidenced by the
City Note, and secured by the City Deed of Trust. The Owner acknowledges that the City shall
have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust until the
Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales Proceeds for
City affordable housing programs. The Owner and the City acknowledge that the 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 Home at an unrestricted price to a market purchaser (in
violation of this Agreement) as the Owner would receive from sale of the Home to the City, City
Designated Purchaser or to an Eligible Purchaser at the Maximum Restricted Resale Price.
17. SALE OF HOME BY OWNER DURING EXTENDED TERM
During the Extended Term, in the event the City Response Notice notifies the Owner to
proceed to sell the Home to a Market Purchaser at a price greater than or equal to the Fair Market
Value of the Home, the Owner may proceed to sell the Home in compliance with the following
requirements:
1010\19\345304.3 12
409651
Upon any sale of the Home, the Owner shall submit to the City at least fifteen (15) days
prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a written
declaration, under penalty of perjury, from the Owner and the proposed purchaser in a form
acceptable to the City stating the gross sales price of the Home. The certification shall also provide
that the proposed purchaser or any other party has not paid and will not pay to the Owner, and the
Owner has not received and will not receive from the proposed purchaser or any other party, money
or other consideration, including personal property, in addition to what is set forth in the sales
contract. At close of escrow, Owner shall submit to the City a copy of the HUD-1 Settlement
Statement showing the purchase price paid for the Home.
18. DEFAULTS
A. The following events shall constitute a Default by the Owner under this Agreement:
(1) The City determines that the Owner has made a misrepresentation to obtain
the benefits of purchase of the Home or in connection with its obligations under this Agreement;
(2) The Owner fails to owner occupy the home, as required pursuant to Section 3
above, and such failure continues following written notice by the City and sixty (60) days
opportunity to cure following the date of such notice.
(3) The Owner rents the Home in violation of Section 4 above, and such failure
continues following written notice by the City and sixty (60) days opportunity to cure.
(4) The Owner fails to provide information to the City necessary to determine
Owner's compliance with the requirements of this Agreement.
(5) The Owner makes a Transfer in violation of this Agreement;
(6) The Owner otherwise fails to comply with the requirements of this
Agreement and such violation is not corrected to the satisfaction of the City within ten (10) days
after the date of written notice by the City to the Owner of such violation; or
(7) A notice of default is issued under First Lender Loan or other financing
secured by the Home.
(8) A lien is recorded against the Home other than the lien of a bona fide
mortgage loan meeting the requirements of Section 28 below.
(9) Owner places a mortgage on the Home in violation of Section 28 below.
(10) Owner declares bankruptcy or makes an assignment of assets for the benefit
of creditors.
B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the following:
1010\19\345304.3 13
40966
(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;
(2) Declare Excess Rental Proceeds due and payable;
(3) Apply to a court of competent jurisdiction for such relief at law or in equity
as may be appropriate;
(4) Declare a Default under the City Note and the City Deed of Trust and pursue
all City remedies under the City Note and the City Deed of Trust; and
(5) Exercise the City Option upon Default as described in Section 21 below.
19. NOTICE AND CURE
Upon Default or a violation of any of the provisions of this Agreement, the City may give
written notice to the Owner specifying the nature of the violation. If the violation is not corrected
to the satisfaction of the City within a reasonable period of time, not longer than thirty (30) days
after 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 any other mortgage loan on the Home, the
City may declare a default under this Agreement.
The City shall notify First Lender at the address provided by the First Lender to the City in
the manner set forth in Section 33 of this Agreement, if the City has declared a default under this
Agreement or under the City Note or City Deed of Trust.
20. NOTICE TO CITY OF DEFAULT
A request for notice of default and any notice of sale under any deed of trust or mortgage
with power of sale encumbering the Home shall be recorded by the City in the Office of the
Recorder of the County of San Diego for the benefit of the City. The City may declare a default
under this Agreement upon receipt of any notice given to the City pursuant to Civil Code Section
2924b, and may exercise its rights as provide in Sections 18 and 21.
In the event of default and foreclosure under the First Lender Loan or any other mortgage
loan on the Home, the City shall have the same right as the Owner to cure defaults and redeem the
Home prior to the foreclosure sale. Nothing herein shall be construed as creating any obligation of
the City to cure any such default, nor shall this right to cure and redeem operate to extend any time
limitations in the default provisions of the underlying deed of trust or mortgage.
If the City failed to file the request for notice of default, the City's right to purchase the
Home shall commence from the date a notice of default is given by the City to the Owner.
1010\19\345304.3 14
40967
21. PURCHASE OPTION UPON DEFAULT
A. Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Option provided in Section 12, the Owner hereby grants to the City
or the City Designated Purchaser the option to purchase the Home effective upon the declaration of
a default by the City pursuant to Section 18 and Section 19 above, and subject to notice and cure
rights set forth in Section 19. Said option to purchase is given in consideration of the economic
benefits received by the Owner resulting from ownership of the Home made possible by the
financial assistance of the City in the purchase of the Home.
B. Exercise of Option. The option to purchase may be exercised upon a default under
this Agreement or upon default under any promissory note, deed of trust or any other lien,
including a judgment lien, recorded against the Home. The City shall have 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 Home for the Maximum Restricted
Resale Price set forth in Section 14. The City may assign its rights to purchase the Home under this
section to a City Designated Purchaser.
C. Affordable Housing Purposes. The City acknowledges and agrees that the City
option granted by this Section 21 shall only be exercised by the City or a City Designated
Purchaser for the purpose of retaining the Home as an affordable housing unit and that the Home
may only be resold by the City or a City Designated Purchaser as an affordable housing unit in
compliance with the Homebuyer Program and/or other City affordable housing programs.
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 a Borrower and
Lender and 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
Home 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 Home 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 Home and will hold the City and Agency harmless from any liability,
loss or damage for these things.
1010\19\345304.3 15
40968
C. Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from all
losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees that the
City and Agency may incur as a direct or indirect consequence of: (1) Owner's default,
performance, or failure to perform any obligations as and when required by this Agreement or the
Deed of Trust; or (2) the failure at any time of any of Owner's representations to the City to be true
and correct.
23. RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Home 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 to pay such proceeds (in addition to other amounts due the City pursuant to the
City Note and this Agreement) to the City in consideration of the benefits received by the Owner
through purchase of the Home under this Agreement.
24. RESTRICTION ON INSURANCE PROCEEDS
If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the
Home, the Owner shall pay the City the portion of any insurance proceeds received by the Owner
(subject to the rights of the First Lender) 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 Home 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) forty-five (45) years from the date of recordation of this
Agreement or (ii) the date of Transfer of the Home 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).
26. SUPERIORITY OF AGREEMENT
The Owner covenants that he or she has not, and will not, execute any other agreement with
provisions contradictory to or in opposition to the provisions of this Agreement hereof, and that, in
any event, this Agreement is controlling as to the rights and obligations between and among the
Owner, the City and their respective successors.
27. SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of the First Lender Loan and shall not impair the rights of the First Lender,
or the First Lender's successor or assign, to exercise its remedies under the First Lender Deed of
1010\19\345304.3
40969*
Trust in the event of default under the First Lender Deed of Trust by the Owner. Such remedies
under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or
assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment in
lieu of foreclosure, this Agreement shall be forever terminated and shall have no further effect as to
the Home or any transferee thereafter; provided, however, if the holder of such First Lender Deed
of Trust acquired title to the Home pursuant to a deed or assignment in lieu of foreclosure, this
Agreement shall automatically terminate upon such acquisition of title, provided that (i) the City
has been given written notice of default under such First Lender Deed of Trust and (ii) the City
shall not have cured or commenced to cure the default within such 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.
28. REFINANCE OF FIRST LENDER LOAN
A. City Consent Required. The Owner covenants and agrees not to place any
additional mortgage or deed of trust, including any line of credit, on the Home without obtaining
prior written consent of the City.
B. 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 Lender Loan 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. The City will not approve any mortgage loan which
includes negative amortization. A form for use by the Owner in requesting City subordination to a
refinanced First Lender Loan is attached hereto as Exhibit E.
C. Junior Loans and Equity Lines of Credit. Mortgage loans or equity lines of credit
junior in lien priority to this Agreement and the City Deed of Trust are not permitted.
D. Request for Notice of Default. Any time an Owner enters into a new mortgage loan,
the Owner shall cause to be recorded against the Home a request for notice of default, providing for
notice of default under such loan to be delivered to the City.
E. Purpose of Restrictions on Refinance and Junior Loans. The City and the Owner
agree that the requirements of this Section 28 are necessary to ensure the continued affordability of
the Home to Owner and to minimize the risk of loss of the Home by Owner through default and
foreclosure of mortgage loans. Owner further acknowledges that violation of the provisions of this
Section 28 shall constitute a Default under this Agreement, for which the City may exercise the
City's option upon default pursuant to Section 21 above.
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
1010\19\345304.3 17
40970
the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the Owner or any
person claiming under or through the Owner establish or permit any such practice or practices of
discrimination or segregation with reference to the use, occupancy, or transfer of the Home. The
foregoing covenant shall run with the land.
30. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement shall
not diminish or affect the rights of the California Housing Finance Agency ("CHFA "), the United
States 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 Home in
compliance with Section 28 above.
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief, or (ii) the Owner is
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 he delivery receipt as the date
of delivery, or the date delivery was refused as indicated on the return receipt, or the date Notice
was returned as undeliverable as follows:
To the Owner:
At the address of the Home.
1010\19\345304.3
40971
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Homebuyer Program
To the First Lender:
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 terms of this Agreement shall be interpreted so as to avoid speculation on the Home
and to insure to the extent possible that the mortgage payments remain affordable to low and
moderate income households.
35. CONTROLLING LAW
The terms of this Agreement shall be interpreted under the laws of the State of California.
36. EXHIBITS
Any exhibits referred to in this Agreement are incorporated in this Agreement by such
reference.
IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date
first written above.
CITY: OWNER:A <^ ^ p
City of Carlsbad, a municipal corporation a T\nl/y^?t'V 1 (J« llVC,! O
municipal corporation %J Print Name
Signature
Name: Li's A ////<r
Title: Afsir+x*/*- £-,'J /^A^Ae-R Print Name
Signature
I0l0\l9\345304.3 19
40972
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:
COMMISSION NUMBER:
DATE COMMISSION EXPIRES:
COUNTY WHERE BOND IS FILED:
MANUFACTURER OR VENDOR NUMBER:
(LOCATED ON eom^tBES OF THE NOTARY SEAL BORDER)
SIGNATUR
(FIRM NAME IF APPLICABLE)
SL*. \t/.J* *
PLACE OF EXECUTION:.
DATED:
40973
STATE OF CALIFORNIA
COUNTY OF
)
) ss.
v
^
On ftO^WbV '2_ Co , 2006, before me?4hru7rdu Mgnid^a Notary Public,
personally appeared AU<-Vi>erv C. £TVCT^ , personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person($ whose name(g) is/ass
subscribed to the withm instrument, and acknowledged to me that hetehe/they executed the same in
hts/her/thSi? authorized capacity(io), and that by his/her/tj*eir signature(s) on the instrument the
person^S), or the entity upon behalf of which the person^ acted, executed the instrument.
WITNESS my hand and official seal.
1666206
Notoiy PuMc - CoMomki _
Son Dtogo County f
My Comm. Exptf«« Apr 2.201 of
STATE OF CALIFORNIA
COUNTY OF
)
) ss.
)
,
On f\ V&tJ *T"
personally appeared
me (o^rovod to mr
, 2006, before me, flic uiidoioignod, a Notary Public,
/rt*-&4'&&A't3t> , personally known to
the basis of satisfactory cvidonce) to be the person^Q whose name^S) is/»e-
subscribed to the within instrument, and acknowledged to me that-fee/she/tfeey executed the same in
feis/her/tbeir authorized capacity(ies«), and that by Ms/her/their signature^ on the instrument the
), or the entity upon behalf of which the person^ acted, executed the instrument.
WITNESS my hand and official seal.
1010\19\345304.3
40974
EXHIBIT A
Legal Description of Property (Home)
1010\19\345304.3
40975
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF San Diego AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM LOCATED ON THE REAL PROPERTY DESCRIBED AS LOT 1
OF CITY OF CARLSBAD TRACT NO. 01-13, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING
TO MAP THEREOF NO. 14797, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MAY 17, 2004 AS FILE NO.
2004-0446317 OF OFFICIAL RECORDS, COMPRISED OF:
PARCEL 1:
UNIT 579, AS SHOWN UPON THAT CERTAIN CONDOMINIUM PLAN
FOR LACUNA POINT, AS RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538003, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN DIEGO
COUNTY, CALIFORNIA ("CONDOMINIUM PLAN").
PARCEL 2:
AN UNDIVIDED 1/21ST INTEREST AS A TENANT IN COMMON IN THE
UNDIVIDED INTEREST COMMON AREA AS SHOWN AND DEFINED ON THE
CONDOMINIUM PLAN AND AS DESCRIBED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS FOR LACUNA POINT
HOMEOWNERS ASSOCIATION, RECORDED ON JUNE 27, 2005, AS FILE NO.
2005-0538002, IN THE OFFICE OF THE COUNTY RECORDER FOR SAN
DIEGO COUNTY, CALIFORNIA ("DECLARATION"). THE UNDIVIDED
INTEREST COMMON AREA WILL NOT BE OWNED BY LAGUNA POINT
HOMEOWNERS ASSOCIATION, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT
CORPORATION ("ASSOCIATION").
PARCEL 3:
NON-EXCLUSIVE EASEMENTS FOR INGRESS, EGRESS, ACCESS, ENJOYMENT,
USE AND SUPPORT OVER THE ASSOCIATION PROPERTY AS DESCRIBED IN
THE DECLARATION AND INDICATED ON THE CONDOMINIUM PLAN, WHICH
WILL BE OWNED BY THE ASSOCIATION.
EXCEPTING THEREFROM THE FOLLOWING:
(a) ALL UNITS, AS SHOWN UPON THE CONDOMINIUM PLAN OTHER THAN
THE UNIT CONVEYED AS PARCEL 1 ABOVE.
(b) THE EXCLUSIVE RIGHT OF POSSESSION AND OCCUPANCY OF ALL
THOSE AREAS DESIGNATED AS EXCLUSIVE USE ASSOCIATION PROPERTY AS
DESCRIBED IN THE DECLARATION AND AS SHOWN UPON THE CONDOMINIUM
PLAN WHICH ARE SET ASIDE AND ALLO GATED FOR THE EXCLUSIVE USE
OF OWNERS OF UNITS.
(c) THE EASEMENT AND OTHER RIGHTS RESERVED IN FAVOR OF
40976
DECLARANT AS DESCRIBED IN THE DECLARATION AND ON THE
CONDOMINIUM PLAN
PARCEL 4:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS D-579.
PARCEL 5:
THE EXCLUSIVE RIGHT TO POSSESSION AND OCCUPANCY OF THAT PORTION
OF THE ASSOCIATION PROPERTY, DESIGNATED AS EXCLUSIVE USE
ASSOCIATION PROPERTY, AS SHOWN ON THE CONDOMINIUM PLAN,
DESIGNATED AS S-579.
PARCEL 6:
ONE CLASS A MEMBERSHIP IN THE ASSOCIATION.
GRANTEES IN ACCEPTING THIS DEED AND THE CONVEYANCE HEREUNDER DO
HEREBY AGREE, JOINTLY AND SEVERALLY FOR THE BENEFIT OF GRANTOR
AND FOR THE BENEFIT OF THE ASSOCIATION AND EACH AND EVERY ONE
OF THE MEMBERS OF SAID ASSOCIATION THAT GRANTEES WILL PROMPTLY,
FULLY, AND FAITHFULLY COMPLY AND CONFORM TO THE DECLARATION,
THE RULES AND REGULATIONS FROM TIME TO TIME PRESCRIBED
THEREUNDER BY THE BOARD OF DIRECTORS OF THE ASSOCIATION OR ITS
OFFICERS AND IN PARTICULAR, GRANTEES DO HEREBY AGREE, JOINTLY
AND SEVERALLY, TO PROMPTLY PAY IN FULL ANY DUES, FEES OR
ASSESSMENTS LEVIED BY SAID ASSOCIATION ON THE MEMBERSHIP
CONVEYED HEREBY.
THE OBLIGATIONS OF GRANTEES HEREIN SET FORTH SHALL BE COVENANTS
RUNNING WITH THE ABOVE DESCRIBED PROPERTY, IT BEING UNDERSTOOD
THAT SAID MEMBERSHIP IN THE ASSOCIATION, AND THE OBLIGATIONS
HEREOF, WILL AUTOMATICALLY PASS TO GRANTEES' SUCCESSORS IN
TITLE IN THE ABOVE DESCRIBED PROPERTY WHETHER SUCH SUCCESSORS
ACQUIRE TITLE BY FORECLOSURE OR OTHERWISE, AND SHALL BE BINDING
UPON THE GRANTEES ABOVE-NAMED THEIR HEIRS, DEVISEES, EXECUTORS,
ADMINISTRATORS, SUCCESSORS AND ASSIGNS, PROVIDED THAT GRANTEES
AND THEIR SAID SUCCESSORS IN TITLE SHALL BE BOUND BY THE
FOREGOING COVENANTS ONLY AS LONG AS THEY RESPECTIVELY ARE IN
TITLE TO THE ABOVE DESCRIBED PROPERTY.
THE FOLLOWING PROVISIONS (THE "RIGHT TO REPAIR PROVISIONS")
PERTAINING TO MATTERS CONCERNING TITLE 7 OF PART 2 OF DIVISION
2 OF THE CALIFORNIA CIVIL CODE (THE "RIGHT TO REPAIR LAW")
SHALL APPLY TO THE DEED:
(a) GRANTEES ACKNOWLEDGE THAT GRANTOR HAS PROVIDED AND GRANTEES
4097?
HAVE RECEIVED THE DOCUMENTS PROVIDED TO GRANTEES IN CONJUNCTION
WITH THIS ORIGINAL TRANSFER OF THE CONDOMINIUM, INCLUDING
GRANTORS'S FIT AND FINISH WARRANTY (THE "FIT AND FINISH
WARRANTY") WHICH INCLUDES A ONE YEAR EXPRESS WARRANTY WHICH
ADDRESSES THE STATUTORY REQUIRED COMPONENTS (CABINETS, MIRRORS,
FLOORING, INTERIOR AND EXTERIOR WALLS, COUNTERTOPS, PAINT
FINISHES AND TRIM), AND GRANTOR'S MAINTENANCE RECOMMENDATION
(AS THE SAME MAY BE MODIFIED OR SUPPLEMENTED FROM TIME TO
TIME) . GRANTEES SHALL PROVIDE THE FIT AND FINISH WARRANTY TO
ANY PERSON WHO PURCHASES THE CONDOMINIUM FROM GRANTEES ON OR
BEFORE THE FIRST ANNIVERSARY OF THE DEED RECORDATION DATE, AND
GRANTOR'S MAINTENANCE RECOMMENDATIONS (AS THE SAME MAY BE
AMENDED FROM TIME TO TIME) TO ANY PERSON WHO PURCHASES THE
CONDOMINIUM FROM GRANTEES AT ANY TIME. GRANTEES ACKNOWLEDGE
THEIR OBLIGATION TO FOLLOW THE MAINTENANCE RECOMMENDATIONS
PROVIDED BY GRANTOR, AS WELL AS ANY PRODUCT MANUFACTURERS, AND
COMMONLY ACCEPTED MAINTENANCE PRACTICES.
(b) GRANTOR ADVISES GRANTEES OF THE EXISTENCE OF THE
PRELITIGATION PROCEDURES SET FORTH IN CHAPTER 4 OF THE RIGHT TO
REPAIR LAW AND THAT SUCH PROCEDURES IMPACT THE LEGAL RIGHTS OF
GRANTEES. GRANTEES ACKNOWLEDGE THAT (i) GRANTEES HAVE BEEN
PROVIDED A WRITTEN COPY OF THE RIGHT TO REPAIR LAW, (ii)
GRANTEES HAVE BEEN OFFERED A COMPLETE COPY OF ALL OF PART 2 AND
(iii) A COMPLETE COPY OF PART 2 IS AVAILABLE FROM GRANTOR UPON
REQUEST. GRANTOR INSTRUCTS GRANTEES TO, AND GRANTEES
ACKNOWLEDGES THAT GRANTEES SHALL, PROVIDE SUCH DOCUMENTS TO ANY
SUBSEQUENT PURCHASER OF THE CONDOMINIUM FROM GRANTEES, AND
SHALL REQUIRE ANY SUCH SUBSEQUENT PURCHASER TO PROVIDE SAID .
DOCUMENTS TO ANY PERSON OR ENTITY WHO PURCHASES THE CONDOMINIUM
FROM SUCH SUBSEQUENT PURCHASER.
(c) GRANTEES SHALL INDEMNIFY, DEFEND AND HOLD GRANTOR HARMLESS
FROM ANY LOSS, COST OR DAMAGES ARISING FROM GRANTEES' FAILURE
TO CARRY OUT GRANTEES' OBLIGATIONS UNDER THIS DEED.
40978
EXHIBIT B
Form of Owner Occupancy Certification
To: City of Carlsbad ("City ")
From:
Address of Home:
Date:
[name of owner(s)] ("Owner(s)")
__ ("Property")
By signature below, I [insert name or names of Owner] hereby certify to
the City under penalty of perjury that I/we occupy the home located at
[insert address] (the "Home ") as my/our principal
place of residence and that I/we have occupied the Home for ( _) [insert number]
months of the calendar year [insert previous calendar year]. Attached to this
letter is a copy of
residence.
[insert utility bill or driver's license] showing my place of
This Owner Occupancy Certification is signed on
perjury.
20 , under penalty of
Due Date:of each calendar year.
By:_
By:.
Owner [type name]
Owner [type name]
Attach copy of utility bill or driver's license showing address of Home.
Also attached is a certificate of insurance for the all-risk insurance on my Home.
1010\19\345304.3 B-l
40979
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 Home: ("Property ")
Date:
Please be notified pursuant to Section * 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 7 of the Resale
Agreement:
1. Address of Property:
2. Date Owner purchased Property:
3. Purchase Price paid by Owner when Property was purchased:
4. Date Owner intends to vacate Property:
5. Date Property will be placed on market:
6. Name and phone number of person for City to contact to schedule inspection:
and
(name) (phone number)
B. As required by Section 8 of the Resale Agreement, the following the HUD-1 Settlement
Statement from Owner's purchase of the 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 report within thirty (30) days of the date of this notice,
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,
1010\19\345304.3
40980
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 of Intent to Transfer is certified by Owner to be true and correct and is
signed on [insert date] under penalty of perjury.
By:.
Owner
By:_
Owner
1010\19\345304.3
40981
EXHIBIT D
Form of Owner Acknowledgement of City Response Notice
Name:
Address of Property:
Date:
I, [insert name] hereby acknowledge that I received the City Response
Notice (as described in Section 10 of the Resale Agreement on [insert date].
By:
1010\19\345304.3
4098$
EXHIBIT E
Form of Owner Request for City Subordination
to Refinanced First Lender Loan
To: City of Carlsbad ("City ")
From: ("Owner")
Property Address: ("Property ")
Date:
The Owner hereby requests the City to approve the Owner's refinance of the existing First Lender
Loan on the Property. The Owner provides the following information which it certifies to be true
and correct:
1. Original Purchase Price of Property: $
2. Original principal balance of existing First Lender Loan: $
3. Interest rate of existing First Lender Loan: $
4. Outstanding principal balance of existing First
Lender Loan: $
5. Monthly payments due on existing First Lender Loan $
6. Principal amount of proposed new First Lender Loan: $
7. Interest rate of Proposed new First Lender Loan: $
8. Monthly payments to be due on new First Lender Loan: $
The Owner hereby certifies the above information is true and correct and this Owner Request is
executed under penalty of perjury on [insert date].
By:.
Owner
By:
Owner
1010\19\345304.3