HomeMy WebLinkAboutKorn, Michael D; 2011-07-06;Recording Requested By
Lawyers Title
A Recording Requested
When Recorded Mail 10:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
D 0 C tt 201 1 -0387267
RECORD2*8 PMOFFICIAL RECORDSSAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J Dronenburg, Jr., COUNTY RECORDERFEES. OOQ WAys
DA: 1
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NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
this Twenty-Ninth day of June, 201 1, among Michael D. Korn, An Unmarried Man
("Borrower(s)") as Trustor, and Lawyer's Title Company, ("Trustee"), and the City of Carlsbad,
a municipal corporation ("City"), as beneficiary.
The Borrower, in consideration of the promises herein recited and the trust herein
created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of
sale, the real property located in the City of Carlsbad, State of California, described in the
attached Exhibit A ("Legal Description of Property")
TOGETHER with all the improvements now or hereafter erected on the real property
described in Exhibit A, and all easements, rights, appurtenances, and all fixtures now or hereafter
attached to the property, all of which, including replacements and additions thereto, shall be
deemed to be and remain a part of the property covered by this Deed of Trust ("Property"); and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to
or used in and about the building or buildings now erected or hereafter to be erected on the
Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, including all
other goods and chattels and personal property as are ever used or furnished in operating a
building, or the activities conducted therein, similar to the one herein described and referred to,
and all renewals or replacements thereof or articles in substitution therefore, whether or not the
same are, or shall be attached to said building or buildings in any manner; and all of the
foregoing, together with the Property, is herein referred to as the "Security";
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
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This Deed of Trust is aettrtd and
subordinate to a Deed of Trust
recorded concurros usy herewith,
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TO SECURE to the City the repayment of the sums evidenced by a promissory note in
the amount of Thirty-One Thousand Dollars ($31,000) executed by the Borrower to the City as
of the date of this Deed of Trust ("Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced
in accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained; 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 ("Resale Agreement") and to secure the
payment of Excess Sales Proceeds (as defined in the Resale Agreement) and Unauthorized
Rental 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 Northern Trust, NA or its successors and
assigns (the "First Lender"), dated *** , 20H., executed by the Borrower in favor of First
Lender, and recorded in the County of San Diego on *** . 20H., and assigned Recorder's
Serial No. _***_ ("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
interest on the Homebuyer Loan (as defined in the Note) and the Excess Sales Proceeds and
Unauthorized Rental Proceeds due under the Resale Agreement. The Note contains the
following provisions concerning repayment of the loan under certain conditions:
*** RECORDED CONCURRENTLY HEREWITH
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Limitations on Assumption of Note. The Borrower acknowledges that this
Note is given in connection with the purchase of the Property as part of a
program of the City to assist in the purchase of homes by low and
moderate income persons. Consequently, this Note is only assumable by
Eligible Purchasers (as defined in the Resale Agreement). This Note is due
in full upon all other Transfers. In the event this Note is assumed by an
Eligible Purchaser, the Eligible Purchaser shall execute a new note, which
shall be in an amount equal to the principal and Contingent Interest owed
by Borrower, a new deed of trust and a new resale restriction agreement
with a restarted term in forms approved by the City.
3. First Lender Loan. The Borrower will observe and perform all of the covenants
and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender
loan documents.
4. Resale Agreement. The Borrower will observe and perform all of the covenants
and agreements of the Resale Agreement.
5. Charges; Liens. The Borrower will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority over this Deed of
Trust, by the Borrower making any payment, when due, directly to the payee thereof. The
Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and
in the event the Borrower makes payment directly, the Borrower will promptly discharge any
lien which has priority over this Deed of Trust; provided, that the Borrower will not be required
to discharge the lien of the First Lender Deed of Trust or any other lien described in this
paragraph so long as the Borrower will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or
defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement
of the lien or forfeiture of the Security or any part thereof.
6. Insurance. The Borrower will keep the Security insured with a standard fire and
extended coverage insurance policy in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessary to prevent the Borrower 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.
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
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hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or
its designated agent, the original insurance policies or certificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt
notice to the insurance carrier and the City or its designated agent. The City, or its designated
agent, may make proof of loss if not made promptly by the Borrower. The City shall receive ten
(10) days advance notice of cancellation of any insurance policies required under this section.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject
to the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of
Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to
the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with
the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the
Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the
date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a
claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of
Trust.
If the Security is acquired by the City, all right, title and interest of the Borrower in and to
any insurance policy and in and to the proceeds thereof resulting from damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed
of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
7. Preservation and Maintenance of Security. The Borrower will keep the Security
in good repair and will not commit waste or permit impairment or deterioration of the Security.
If there arises a condition in contravention of this section, and if the Borrower has not cured such
condition within thirty (30) days after receiving a City notice of such a condition, then in
addition to any other rights available to the City, the City shall have the right (but not the
obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien
or other encumbrance against the Security to recover its cost of curing.
8. Protection of the City's Security. If the Borrower fails to perform the covenants
and agreements contained in this Deed of Trust, the Resale 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.
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Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will
become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower
and City agree in writing to other terms of payment, such amount will be payable upon notice
from the City to the Borrower requesting payment thereof, and will bear interest from the date of
disbursement at the lesser often percent (10%) or the highest rate permissible under applicable
law. Nothing contained in this paragraph will require the City to incur any expense or take any
action hereunder.
9. Inspection. The City may make or cause to be made reasonable entries upon and
inspections of the Security; provided that the City will give the Borrower reasonable notice of
inspection.
10. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising
any right or remedy will not be a waiver of the exercise of any such right or remedy, nor shall
acceptance by the City of any payment provided for m the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed. The procurement
of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of
the City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
11. Hazardous Substances. Borrower shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall
not do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage
on the Property of small quantities of Hazardous Substances that are generally recognized to be
appropriate to normal residential uses and to maintenance of the Property.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
Borrower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving the
Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that
any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
12. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently, independently or successively.
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13. Successors and Assigns Bound. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the
City and the Borrower subject to the provisions of this Deed of Trust.
14. Joint and Several Liability. All covenants and agreements of the Borrower shall
be joint and several.
15. Notice. Except for any notice required under applicable law to be given in
another manner, all notices required in this Deed of Trust shall be sent by certified mail, return
receipt requested or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Owner:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Neighborhood Services Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Neighborhood Services Director
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
16. Controlling Law. This Deed of Trust shall be construed in accordance with and
be governed by the laws of the State of California.
17. Invalid Provisions. If any one or more of the provisions contained in this Deed of
Trust, Resale 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.
18. Captions. The captions and headings in this Deed of Trust are for convenience
only and are not to be used to interpret or define the provisions hereof.
19. Nonliability for Negligence. Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of an
Borrower and the administrators of City inclusionary housing program, and that the City does
not undertake or assume any responsibility for or duty to Borrower to select, review, inspect,
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supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the
Security or any other matter. The City owes no duty of care to protect Borrower against
negligent, faulty, inadequate or defective building or construction or any condition of the
Security and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns
shall ever claim, have or assert any right or action against the City for any loss, damage or other
matter arising out of or resulting from any condition of the Security and will hold City harmless
from any liability, loss or damage for these things.
20. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, expenses and reasonable
attorneys fees that the City may incur as a direct or indirect consequence of:
a. Borrower's failure to perform any obligations as and when required by the
Note, Resale Restriction Agreement, and this Deed of Trust; or
b. the failure at any time of any of Borrower's representations or warranties
to be true and correct.
This provision shall survive the term of this Agreement.
21. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of
the Borrower in the Note, Resale Agreement or this Deed of Trust, including, but not limited to,
the covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to
acceleration, will send, in the manner set forth in Section 15 of this Deed of Trust, notice to the
Borrower specifying: (1) the breach; (2) if the breach is curable, the action 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 15 of this Deed of Trust, by which such breach, if curable, is to be cured; and (4) if the
breach is curable, that failure to cure such breach on or before the date specified in the notice
may result in acceleration of the sums secured by this Deed of Trust and sale of the Security.
Notice shall be effective as of the date shown on the delivery receipt as the date of delivery, the
date delivery was refused or the date the notice was returned as undeliverable. The notice will
also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to
bring a court action to assert the nonexistence of default or any other defense of the Borrower to
acceleration and sale.
If the breach is not curable or is not cured on or before the date specified in the notice, the
City, at the City's option, may: (a) declare all of the sums secured by this Deed of Trust to be
immediately due and payable without further demand and may invoke the power of sale and any
other remedies permitted by California law; (b) either in person or by agent, with or without
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
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continuance in possession of the Security, the City shall be entitled to exercise every right
provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including
the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as
a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to
the Trustee a written declaration of default and demand for sale, pursuant to the provisions for
notice of sale found at California Civil Code Sections 2924, et seq.. as amended from time to
time; or (e) exercise all other rights and remedies provided herein, in the instruments by which
the Borrower acquires title to any Security, or in any other document or agreement now or
hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or
provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
22. Acceleration. Upon the occurrence of a default under the Note, the Resale
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.
23. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the
sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings
begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days
before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all
sums, if any, which would be then due under this Deed of Trust and no acceleration under the
Note has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of
the Borrower contained in the Note, Resale 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.
24. Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City
will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the
Note to the Trustee. The Trustee will reconvey the Security without warranty and without
charge to the person or persons legally entitled thereto. Such person or persons will pay all costs
of recordation, if any.
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25. Substitute Trustee. The City, at the City's option, may from time to time remove
the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by
applicable law.
26. Subordination to First Lender Mortgage. Notwithstanding any other provision
hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender
Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's successor
or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default
under the First Lender Deed of Trust by the Borrower. Such remedies under the First Lender
Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of
foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure,
or upon assignment of the First Lender Deed of Trust to the Secretary of the United States
Department of Housing and Urban Development (the "Secretary"), this Deed of Trust shall be
forever terminated and shall have no further effect as to the Property or any transferee thereafter;
provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property
pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed of Trust is
assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition
of title or assignment to the Secretary provided that (i) the City has been given written notice of
default under such First Lender Deed of Trust and (ii) the City shall not have cured or
commenced to cure the default within such thirty (30)-day period and given its firm commitment
to complete the cure in the form and substance acceptable to the First Lender. Borrower agrees
to record any necessary documents to effect such termination, if applicable.
IN WITNESS WHEREOF, the Borrower has executed this Deed Of Trust as of the date
first written above.
(Borrower Signature)
Michael D. Korn
(Print Name)
"7/^/2011
bate/
(Borrower Signature)
(Print Name)
Date
(Proper Notarial Acknowledgement of Execution by Borrower(s) Must Be Attached)
9
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
ss
uJ .before me, JENNIFER CLEMENTS, NOTARY PUBLIC personally appeared:
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
1
WITNESS my hand an official seal
i ii ~in ^ -^^^•^~~~
SIGNATURE
JENNIFER CLEMENTS
COMM. #1778202
Notary Public - California §
San Diego County -*
My Comm. ExpiresJjo^S.jOTJ |
This area for official notarial seal.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying
on the document and could prevent fraudulent removal and reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) other than named above.
CAPACITY(IES) CLAIMED BY SIGNER(S)
D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
D PARTNER(S)-Q LIMITED
D GENERAL
D ATTORNEY-IN-FACT
DTRUSTEE(S)
D GUARDIAN OR CONSERVATOR
DOTHER
SIGNER IS REPRESENTING:
Right Thumbprint
Of Signer
Top of thumb here
D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
D PARTNER(S)- D LIMITED
D GENERAL
D ATTORNEY-IN-FACT
DTRUSTEE(S)
D GUARDIAN OR CONSERVATOR
DOTHER
Right Thumbprint
of Signer
Top of thumb here
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EXHIBIT "A"
THE LAND REFERRED TO HEREIN IS SITUATED IN THf COUNTY-OF SAN DIEGO, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM COMPRISED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA
OF PHASE 3 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM PLAN (THE
"CONDOMINIUM PLAN") RECORDED ON FEBRUARY 11, 2005, AS DOCUMENT NO. 2005-0117224,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT 1 OF
CARLSBAD TRACT MAP CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST HEREBY
CONVEYED IS THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE
CONDOMINIUM PLAN AS BEING WITHIN PHASE 3 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
EXCEPT THEREFROM THE OIL, GAS, MINERALS, AND OTHER HYDROCARBON SUBSTANCES LYING
BELOW THE SURFACE OF SAID LAND, AS PROVIDED IN DEEDS OF RECORD.
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 43, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS):
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLAN
AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE
ASSOCIATION PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR
MULBERRY AT BRESSI RANCH RECORDED ON MARCH 10, 2005 AS INSTRUMENT NO. 2005-
0197712, OF OFFICIAL RECORDS), EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT
HEREBY RESERVED, WHICH IS APPURTENANT TO THE LIVING UNIT DESCRIBED ABOVE, IS FOR
ACCESS AND USE OF THE ASSOCIATION PROPERTY, SUBJECT TO THE PROVISIONS OF THE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES AND REGULATIONS OF THE
MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL
BENEFIT CORPORATION.
ASSESSOR'S PARCEL NUMBER: 213-190-05-03
Recording Requested Bv
Lawyers Title
RECOR.DTNG REQUESTED BY
Cff¥-OF CARLSBAD.
AND WHEN RECORDED MAIL, TO:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn; City Clerk
DOCtt 2011-0387269
JUL29, 2011 2:58 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 27.00
14576 PAGES: 5
(Space above for Recorder's Use)
NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF
PROPERTY
NOTICE IS HEREBY GIVEN, that the City of Carlsbad ("City"), has required
Michael D. Korn, an Unmarried Man ("Owner") to enter into certain affordability
covenants and restrictions entitled, Affordability Restrictions on Transfer of Property,
Occupancy, and Refinancing Restrictions and Option to Purchase ("Restrictions"), with
reference to certain real property located at 6209 Shamrock Place, Carlsbad CA 92009,
San Diego County ("Property"), and further described in Exhibit A, incorporated herein
by reference.
The affordability covenants and restrictions contained in the Restrictions include
without limitation and as further described in the Restrictions:
1. The Property is restricted for resale to a very low-income household at a
purchase price affordable to a very low -income household, except as set forth
in the Restriction.
2. The Owner must occupy the Property as the Owner's principal residence.
3. The Owner must give notice to the City before resale of the Property.
4. The Owner has granted the City an option to purchase the Property upon
resale or default.
5. The Owner's rights to pledge the Property as security for a debt are limited.
6/28/2011
14577
In the event of any conflict between this Notice of Affordability Restrictions on
Transfer of Property ("Notice") and the Restrictions, the terms of the Restrictions shall
prevail.
The Restrictions have been recorded concurrently herewith and shall remain in effect for
thirty (30) years commencing on the date of recordation of the Restrictions.
This Notice is being recorded and filed by the City of Carlsbad ("City") in compliance
with Health and Safety Code Sections 33334.5(f)(3) and (4) and/or Section 33413(c)(5),
as amended effective this date, and shall be indexed against the City and the Owner.
IN WITNESS WHEREOF, the parties have executed this Notice of Affordability
Restrictions on Transfer of Property on or as of the date first written above.
AGENCY:
CITYOF CARLSBAD
By:
Name:
Title:
Dated:
(Signature)
Michael D. Korn
(Type name)
(Signature)
(Type Name)
(PROPER NOTORIAL ACKNOWLEDGEMENTMUST BE A TTA CHED)
6/28/2011
14578
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On OQ\U (
SS
U
J
.before me, JENNIFER CLEMENTS, NOTARY PUBLIC personally appeared:
<O-
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand an official seal
SIGNATU
JENNIFER CLEMENTS I
COMM. #1778202 z
Notary Public - California g
San Diego County -j
Mv Comm. Expires Nov. 5^2011 |
This area for official notarial seal.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying
on the document and could prevent fraudulent removal and reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) other than named above
CAPACITY(IES) CLAIMED BY SIGNER(S)
D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
D PARTNER(S)-D LIMITED
D GENERAL
D ATTORNEY-IN-FACT
D TRUSTEE(S)
D GUARDIAN OR CONSERVATOR
DOTHER
SIGNER IS REPRESENTING:
Right Thumbprint
Of Signer
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D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
CI PARTNER(S)- D LIMITED
D GENERAL
D ATTORNEY-IN-FACT
D TRUSTEE(S)
D GUARDIAN OR CONSERVATOR
DOTHER
Right Thumbprint
of Signer
Top of thumb here
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT 14579
State of California
County of
On 0>//W// ^// before me,Do
personally appeared ^^fA^fA^
(He« insert name andtitle of tr# officer)
who proved to me on the basis of satisfactory evidence to be the person^ whose name(^) is/ai^subscribed to
the within instrument and acknowledged to me that he/Site/they executed the same in his/he*£heir authorized
capacity(ies), and that by his/Ker/tfeek^ignatureCs^on the instrument the person(^, or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
\(Notary Seal)
MORGENFRY
Commission # 1918442
Notary Public - California
San Diego County
Mv Comm. Expires OteMJOU
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
D Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-i
Ll Trust
D
INSTRUCTIONS FOR COMPLETING
Any acknowledgment completed In California must conlaipSverbiage exactly as
appears above in the notary section or a separate ackpelwledgment form must be
properly completed and attached to that documexT The only exception is if a
document is to be recorded outside of Califojyttt^ In such instances, any alternative
acknowledgment verbiage as may be minted on such a document so long as the
verbiage does nor require the notapfTo do something that is illegal for a notary in
California (i.e. certifying theomhorized capacity of the signer). Please check the
document carefully for pm^er notarial wording and attach this form if required.
• State and Cojjjrfy information must be the State and County where the document
signer(sVfXfsonally appeared before the notary public for acknowledgment.
• Datexrfnotarization must be the date that the signer(s) personally appeared which
Ost also be the same date the acknowledgment is completed.
'The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
Print the name(s) of document signer(s) who personally appear at the time of
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Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
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The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
Signature of the notary public must match the signature on file with the office of
the county clerk.
••• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
•;• Indicate title or type of attached document, number of pages and date.
* Indicate the capacity claimed by the signer. If the claimed capacity is a
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Securely attach this document to the signed document
2008 Version CAP A vl2.10.07 800-873-9865 www.NotaryClasses.com
14580
EXHIBIT "A"
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM COMPRISED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA
OF PHASE 3 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM PLAN (THE
"CONDOMINIUM PLAN") RECORDED ON FEBRUARY 11, 2005, AS DOCUMENT NO. 2005-0117224,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT 1 OF
CARLSBAD TRACT MAP CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST HEREBY
CONVEYED IS THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE
CONDOMINIUM PLAN AS BEING WITHIN PHASE 3 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
EXCEPT THEREFROM THE OIL, GAS, MINERALS, AND OTHER HYDROCARBON SUBSTANCES LYING
BELOW THE SURFACE OF SAID LAND, AS PROVIDED IN DEEDS OF RECORD.
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 43, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS):
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLAN
AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE
ASSOCIATION PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR
MULBERRY AT BRESSI RANCH RECORDED ON MARCH 10, 2005 AS INSTRUMENT NO. 2005-
0197712, OF OFFICIAL RECORDS), EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT
HEREBY RESERVED, WHICH IS APPURTENANT TO THE LIVING UNIT DESCRIBED ABOVE, IS FOR
ACCESS AND USE OF THE ASSOCIATION PROPERTY, SUBJECT TO THE PROVISIONS OF THE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES AND REGULATIONS OF THE
MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL
BENEFIT CORPORATION.
ASSESSOR'S PARCEL NUMBER: 213-190-05-03
Recorbing
Lawyers
RECORDING REQUESTED PURSUANT
TO GOVERNMENT
CODE SECTION 27383
When Recorded Mail To:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, CA 92008
mi 111 inn mil n»i mi. .77....... ^J^JU i £DQ
JUL29.2011 2:58 PM
AM r, OFFICIAL RECORDS
EniS? nG° COkUNTY RECORDER'S OFFICEErnesU. Dronenburg, Jr., COUNTY RECORDER
0.00 WAYS 2
14545 PAGES: 31
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
RESALE RESTRICTION AGREEMENT,
AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM - 2011
Owner: Michael D. Korn
Address of Property: 6209 Shamrock Place,
Carlsbad, CA 92009
This Resale Restriction Agreement and Option to Purchase ("Agreement") is entered into
as of this Twenty-Ninth day of June, 2011, by and between the City of Carlsbad a municipal
corporation ("City"), and Michael D. Korn, An Unmarried Man ("Owner").
RECITALS
A. The City has developed a second mortgage program designed to assist qualified
low or moderate income households purchase their homes located within the City of Carlsbad
("Homebuyer Program").
In connection with its affordable homeownership program the City made a loan ("Homebuyer
Loan") in the amount of Thirty-One Thousand Dollars ($31,000) to Owner to purchase a single-
family dwelling located in Carlsbad, California on that certain real property and more
particularly described in Exhibit A ("Property"). The Homebuyer Loan in is an amount that will
make the Property affordable to low and moderate income households.]
CA 5/12/2011
14546
B. As used herein, the term "Property" includes both the real property and all
improvements now or hereafter erected thereon and all easements, rights, appurtenances, and all
fixtures now or hereafter attached thereto.
C. The "Original Affordable Purchase Price" of the Property is Two Hundred Thirty-
Four Thousand Dollars ($234,000).The Original Affordable Purchase Price is the effective price
of the Residence paid by the Owner. The actual price of the Residence is equal to the Original
Affordable Purchase Price plus the amount of the Promissory Note ("Full Purchase Price").
Owner is a low income household.
D. The Owner is receiving a First Lender Loan in the amount of One Hundred
Eighty Thousand Five Hundred Dollars ($ 180.500) ("First Lender Loan") from Northern
Trust, NA ("First Lender"). The First Lender Loan is secured by a deed of trust dated ***_.
2011, executed by the Buyer in favor of First Lender and recorded in the County of San Diego
on ***, 2011, and assigned Recorder's Serial No. *** ("First Lender Deed of Trust").
E. The Loan is evidenced by a promissory note in the amount of the Loan ("City
Note"). This Agreement and the City Note shall be secured by a deed of trust ("City Deed of
Trust") subordinate to the lien of First Lender Deed of Trust.
F. The purpose of this Agreement is to place resale controls on the Property, to
provide the City an option to purchase the Property at a restricted price and to ensure that the
Owner complies with the Homebuyer Program requirements.
G. This Agreement also meets the requirements of Health and Safety Code Sections
33334.2 and 33334.3 and permits the City to meet the affordable housing production
requirements of Health and Safety Code Section 33413(b).
H. This Agreement and the City Note require repayment of the loan plus contingent
interest and, in certain instances, payment of excess proceeds of sale. This Agreement will
remain in full effect as an encumbrance on the Property after any prepayment of the City Note by
the Buyer.
NOW, THEREFORE, in consideration of the benefits received by the Owner and the
City, the Owner and the City agree, as follows:
1. DEFINITIONS AND EXHIBITS
A. The following terms are specifically defined for this Agreement and their
definitions can be found in the Sections indicated below:
(1) "Affordable Sales Price" - Section 14A(l)(a).
*** RECORDED CONCURRENTLY HEREWITH
C A 5/12/2011
14547
(2) "Agreement" - first sentence of the Agreement on page 1.
(3) "City" - first sentence of the Agreement on page 1.
(4) "City Deed of Trust" - Recital F.
(5) "City Designated Purchaser" - Section 12B.
(6) "City Note" - Recital F.
(7) "City Option" - Section 12A.
(8) "City Response Notice" - Section 10.
(9) "Default"-Section 18
(10) "Eligible Purchaser" Section 15B.
(11) "Extended Term"-IOC.
(12) "Excess Sales Proceeds" - Section 16.
(13) "Fair Market Value" - Section 14B.
(14) "First Lender" - Recital E.
(15) "First Lender Deed of Trust" - Recital E.
(16) "First Lender Loan" - Recital E.
(17) "Full Purchase Price" - Recital D.
(18) "Full Sales Price" - Section 14A.
(19) "Homebuyer Loan" - Recital B.
(20) "HUD" - Section 30.
(21) "Initial Term"-! OB.
(22) "Market Purchaser" - Section IOC.
(23) "Maximum Restricted Resale Price" - Section 14.
(24) "Median Income" - Section 14A.
CA 5/12/2011
14548
(25) "Original Affordable Purchase Price" - Recital D.
(26) "Owner" - first sentence of the Agreement on page 1.
(27) "Owner's Notice of Intent to Transfer" - Section 8.
(28) "Property" - Recital B.
(29) "Proposed Purchaser" - Section 15A.
(30) "Transfer" - Section 7.
(31) "Unauthorized Rental Proceeds" - Section 4.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A: Legal Description of Property
(2) ExhibitB: Form of Owner Occupancy Certification
(3) Exhibit C: Form of Owner's Notice of Intent to Transfer
(4) Exhibit D: Form of City Response Notice
(5) Exhibit E: Form of Owner Acknowledgement of City Response
Notice
(6) Exhibit F: Form of Owner Request for City Subordination to
Refinanced First Lender Loan
2- OWNER CERTIFICATIONS
The Owner certifies that (i) the financial and other information previously provided in
order to qualify to purchase the Property is true and correct as of the date first written above, (ii)
the Owner is an Eligible Purchaser, and (iii) the Owner shall occupy the Property as the Owner's
principal place of residence.
3. OCCUPANCY OF PROPERTY
A. The Owner shall occupy the Property 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 the Property as the Owner's principal place of residence shall constitute a Default under
this Agreement for which the City may exercise its option to purchase pursuant to Section 21
below. The Owner shall be considered as occupying the Property if the Owner is 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 Property as his or her principal place of residence. Upon the City's written
4
CA 5/12/2011
14549
request, the Owner shall provide any additional information and documents which the City
requests including but not limited to tax returns and bank statements, which may evidence
whether the Owner is occupying the Property. Failure to provide any additional information or
documentation requested shall constitute a Default under this Agreement.
4. LEASING OF PROPERTY
The Owner shall not lease all or a portion of the Property to another party. Any lease of
the Property in violation of this Agreement is prohibited and all proceeds derived therefrom are
"Unauthorized Rental Proceeds", and shall be a Default under this Agreement and the City Deed
of Trust.
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time homebuyer education class offered by
a housing counseling organization approved by the U.S. Department of Housing and Urban
Development.
6. MAINTENANCE AND INSURANCE PROCEEDS
A. The Owner shall maintain the Property, including landscaping, in good repair and
in a neat, clean and orderly condition and will not commit waste or permit deterioration of the
Property. Failure by the Owner to maintain the Property shall constitute a default under this
Agreement for which the City may exercise the City Option to purchase the Property pursuant to
Section 21 below.
B. The Owner shall maintain a standard fire and extended coverage home insurance
policy equal to the replacement value of the Property (adjusted every five (5) years by appraisal,
if requested by City), naming the City as an additional insured. Additional insurance
requirements are set forth in Section 6 of the City Deed of Trust.
7. TRANSFER AND SALE RESTRICTIONS
Any Transfer of the Property will be subject to the provisions of this Agreement
including, without limitation, exercise of the City Option pursuant to Section 12 below.
"Transfer" shall mean any sale, assignment or transfer, voluntary or involuntary, of any interest
in the Property, including, but not limited to, a fee simple interest, a joint tenancy interest,
tenancy in common interest, a life estate, a leasehold interest, an interest evidenced by a land
contract by which possession of the Property is transferred and Owner retains title. Any Transfer
without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not
include a transfer: (i) to an existing spouse who is also an obligor under the City Note; (ii) by the
Owner to a spouse where the spouse becomes the co-owner of the Property; (iii) between
spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse of Owner by
5
CA 5/12/2011
14550
devise or inheritance following the death of Owner; (v) by Owner into an inter vivos revocable
trust in which Owner is the Trustor; (vi) by deed of trust or imposition of a lien subordinate to
the City Deed of Trust or (vii) refinance of the First Mortgage meeting the requirements of
Section 28 of this Agreement; provided, however, that Owner shall provide written notice of all
such transfers to City pursuant to Section 8 below; and Owner shall continue to occupy the
Property as his or her principal place of residence (except where the transfer occurs pursuant to
subsection (iii) or (iv) above, in which event the transferee shall owner-occupy the Property and
affirmatively assume Owner's obligations under this Agreement, the City Note and the City Deed
of Trust).
8. NOTICE OF INTENDED TRANSFER
A. In the event the Owner intends to transfer (including without limitation all
"Transfers" as defined in Section 7) or vacate the Property, the Owner shall promptly give the
City written notice of such intent (the "Owner's Notice of Intent to Transfer") in the form shown
in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to
Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the
Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice
of Intent to Transfer shall be sent to the City in the manner and at the address provided in Section
33 of this Agreement. The Owner's Notice of Intent to Transfer shall include the information
necessary for the City to determine the Maximum Restricted Resale Price of the Property,
including the following information:
(1) the address of the Property;
(2) the date of purchase of the Property by the Owner;
(3) the Original Affordable Purchase Price of the Property;
(4) the Full Purchase Price of the Property (which is the Original Affordable
Purchase Price plus the original amount of the Homebuyer Loan).
(5) a copy of the HUD-1 Settlement Statement or equivalent document from
the close of escrow on the Owner's purchase of the Property;
(6) the date on which Owner intends to vacate Property;
(7) the date the Property will be placed on the market; and
(8) the name and phone number of the person to contact to schedule
inspection of the Property by the City.
CA 5/12/2011
i4551
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 Property by the City or City Designated
Purchaser, the Owner shall permit a final walk-through of the Property by the City or City
Designated Purchaser, in the final three (3) days prior to close of escrow on the Transfer.
10. CITY RESPONSE TO 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 form of City Response Notice is attached as Exhibit D. The City Response
Notice shall inform the Owner of the City's election to proceed under one (1) of the following
two (2) alternatives:
A. City Exercise of City Purchase Option. The City Response Notice may notify the
Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase
the Property. The City Response Notice shall be sent within thirty (30) days of City receipt of
Owner's Notice of Intent to Transfer and shall include the City's calculation of the (i) Maximum
Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated
Purchaser and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below.
B. Initial 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 Property. In this case, if the Owner
7
CA 5/12/2011
14552
has sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
Agreement (the "Initial Term"), the City Response Notice shall tell the Owner that the Owner
may proceed to sell the Property to an Eligible Purchaser at a price not to exceed the Maximum
Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set forth in
Section 14 below. In this event, the City Response Notice shall include the following
information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the
same income category as the Owner at the time of the Owner's purchase); (2) the certifications
required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may
receive for the Property, calculated by the City pursuant to Section 14 below; (4) whether
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 Property, and the Owner has sent the Notice of Intent to Transfer between the
fifteenth (15th) year of the Term and the end of the Term, (the "Extended Term"), the City
Response Notice shall inform Owner that Owner may proceed to sell the Property to a third party
at any income level (the "Market Purchaser") for an unrestricted price. The City Response
Notice shall also inform Owner of Owner's repayment obligation as required by Section 13.
11. OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
No later than seven (7) days following the date of the City Response Notice, the Owner
shall acknowledge in writing to the City, in the form shown in the attached Exhibit E. that he/she
has received the City Response Notice and still intends to Transfer the Property.
12. CITY PURCHASE OPTION
A. The Owner agrees that if the Owner decides to Transfer the Property, the City
shall have the option to purchase the Property for the Maximum Restricted Resale Price
calculated pursuant to Section 14 of this Agreement (the "City Option"). The Owner shall pay
the City a transaction fee up to six percent (6%) of the Maximum Restricted Resale Price if the
City or a City Designated Purchaser exercises the City Option and purchases the Property. The
City Option may be exercised by the City or by a City Designated Purchaser in the City
Response Notice. If the City Response Notice notifies the Owner that the City or a City
Designated Purchaser will exercise the City Option to purchase the Property, the City or the City
Designated Purchaser shall purchase the Property within ninety (90) days of the date of the City
Response Notice and title shall be delivered by the Owner to the City by grant deed free and
clear of any mortgage or other liens, unless approved in writing by the City.
B. The City may assign the City Option to another public agency, a nonprofit
corporation, or an Eligible Purchaser selected by the City (any of which shall be referred to
herein as a "City Designated Purchaser"). If the City assigns the City Option to a City
Designated Purchaser, the City Response Notice shall be executed by the City Designated
CA 5/12/2011
14553
Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City
Option in lieu of the City.
C. In the event of exercise of the City Option and purchase of the Property by the
City or a City Designated Purchaser, the Owner shall permit a final walk-through of the Property
by the City or the City Designated Purchaser in the final three (3) days prior to close of escrow
on the Transfer.
13. REPAYMENT OF CITY NOTE
Upon any Transfer of the Property, the outstanding principal and interest due under the
City Note shall be repaid pursuant to the City Note unless (i) such principal and interest is
assumed by an Eligible Purchaser in accordance with Section 9 of the City Note or (ii) the City
exercises the City Option to purchase the Property, in which event the outstanding amount of
principal and Contingent Interest due under the City Note shall be paid to the City in the form of
a credit against the purchase price to be paid by the City to the Owner. Repayment of the City
Note shall not affect Owner's obligation to comply with this Agreement, which shall remain in
full force and effect following any repayment of the City Note.
14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price (the "Maximum Restricted Resale Price") that the Owner shall
receive from the resale of the Property from purchase of the Property 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 Full Sales Price or the Fair
Market Value, whichever is less.
A. Full Sales Price.
(1) The Full Sales Price of the Property means: (a) the Affordable Sales Price
plus (b) the principal and contingent interest then due on the City Note. The Affordable Sales
Price means the Original Affordable Purchase Price, as set forth in Recital D to this Agreement,
increased by the percentage of increase in the Median Income from the date of the original
purchase of the Property by the Owner to the date of receipt by the City of the Owner's Notice of
Intent to Transfer "Median Income" shall refer to the median yearly income, adjusted for a
household size of four, in San Diego County, as published by the California Department of
Housing and Community Development ("HCD"), or, in the event such income determination is
no longer published by HCD, or has not been updated for a period of at least eighteen (18)
months, the City may use or develop such other reasonable method as it may choose in order to
determine the median yearly income in San Diego County. As of the date of Owner's purchase
of the Property, the Median Income for a household of four persons is Seventy-Four Thousand
Nine Hundred Dollars ($74.900).
(2) The Affordable Sales Price shall include a downward adjustment, where
applicable, in an amount necessary to repair any violations of applicable building, plumbing,
C A 5/12/2011
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electric, fire or housing codes or any other provisions of the City of Carlsbad Building Code, as
well as any other repairs needed to put the Property into a "sellable condition". Items necessary
to put a Property into sellable condition shall be 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 Property without taking account of the resale restrictions imposed by this
Agreement (the "Fair Market Value"). These circumstances include but are not limited to: (1)
where the parties wish to determine if the Full Sales Price exceeds the Fair Market Value in
order to determine the Maximum Restricted Resale Price pursuant to this section; (2) where the
parties wish to determine if the sales price of the Property to a Market Purchaser is comparable
to the Fair Market Value; and (3) to calculate the amount due under the City Note at the end of
the term of the City Note or upon prepayment. If it is necessary to determine the Fair Market
Value of the Property, it shall be determined by a certified MAI or other qualified real estate
appraiser approved in advance by the City. If possible, the appraisal shall be based upon the
sales prices of comparable properties sold in the market area during the preceding three (3)-
month period. The cost of the appraisal shall be paid by the Owner, unless the appraisal is
obtained from a new purchaser. Nothing in this section shall preclude the Owner and the City
from establishing the Fair Market Value of the Property by mutual agreement in lieu of an
appraisal pursuant to this section.
15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE
OPTION TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the Property
to an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the
Owner may proceed to sell the Property in compliance with the following requirements:
A. Marketing. The Owner shall use bona fide good faith efforts to sell the Property
to an Eligible Purchaser in compliance with this section, including listing the Property on the
Multiple Listing Service, keeping the Property in an orderly condition, making the Property
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:
(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.
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(2) Intent to Owner Occupy. The Proposed Purchaser shall certify that he or
she will occupy the Property as to his or her principal place of residence throughout his or her
ownership. Co-signers are not required to occupy the Property.
(3) Agreement to Sign Resale Restriction Agreement and to Cooperate with
the City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting
future resale of the Property and shall agree to cooperate fully with the City in promptly
providing all information requested by the City to assist the City in monitoring the Proposed
Purchaser's compliance with the resale restriction agreement.
C. Maximum Restricted Resale Price. The purchase price for the sale of the Property
by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set forth in the City Response Notice.
The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego. Pursuant to Section 13 of this Agreement and Section
9 of the City Note, the Eligible Purchaser may assume the Homebuyer Loan and the effective
purchase price that the Eligible Purchaser will pay for the Property is likely to be the Affordable
Sales Price.
D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1) The name, address and telephone number in writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other supporting documentation requested by the City. The
financial information shall be used by the City to determine the income eligibility of the
Proposed Purchaser.
(3) The proposed sales contract and all other related documents which shall
set forth all the terms of the sale of the Property. Said documents shall include at least the
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for
the Owner's personal Property, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
(4) A written certification, from the Owner and the Proposed Purchaser in a
form acceptable to the City that the sale shall be closed in accordance with the terms of the sales
contract and other documents submitted to and approved by the City. The certification shall also
provide that the Proposed Purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other party, money or other consideration, including personal 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 Property or file an action at
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law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred
by the Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and
legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold
the City harmless and reimburse the City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5) An executed buyer's resale 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 Property,
the escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, certified copies of the recorded City
deed of 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. If the
Owner Transfers the Property in violation of this Agreement, the Appreciation Amount (as such
term is defined in the City Note) shall be calculated using the Maximum Restricted Resale Price
of the Property, rather than the actual sales price. For purposes of this Agreement, "Excess Sales
Proceeds" shall mean ninety-four percent (94%) of the amount by which the gross sales proceeds
received by the Owner from the new purchaser exceed the Maximum Restricted Resale Price for
the Property. This amount shall be a debt of the Owner to the City, further evidenced by the City
Note, and secured by the City Deed of Trust. The Owner acknowledges that the City shall have
no obligation to cause 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 Property at an unrestricted price to a market
purchaser (in violation of this Agreement) as the Owner would receive from sale of the Property
to the City, City Designated Purchaser or to an Eligible Purchaser at the Maximum Restricted
Resale Price.
17. SALE OF PROPERTY BY OWNER DURING EXTENDED TERM
In the event the City Response Notice notifies the Owner to proceed to sell the Property
to a Market Purchaser at a price greater than or equal to the Fair Market Value of the Property,
the Owner may proceed to sell the Property in compliance with the following requirements:
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Upon any sale of the Property, the Owner shall submit to the City at least fifteen (15)
days prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a
written declaration, under penalty of perjury, from the Owner and the proposed purchaser in a
form acceptable to the City stating the gross sales price of the Property. The certification shall
also provide that the proposed purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the proposed purchaser or 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 Property.
18. DEFAULTS
A. A Default by the Owner is any failure to comply with the requirements of this
Agreement, the Promissory Note or the Deed of Trust, whether by commission or omission
which includes, but is not limited to the following::
(1) The City determines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Property or in connection with its obligations under this
Agreement.
(2) The Owner fails to owner occupy the Property, as required pursuant to
Section 3 above, and such failure continues following written notice by the City and sixty (60)
days opportunity to cure following the date of such notice.
(3) The Owner rents all or a portion of the Property 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 or documents to the City that the
City deems necessary to determine Owner's compliance with the requirements of this
Agreement.
(5) The Owner makes a Transfer in violation of this Agreement.
(6) A notice of default is issued under First Lender Loan or other
financing secured by the Property.
(7) A lien is recorded against the Property other than the lien of a bona fide
mortgage loan.
(8) Owner places a mortgage on the Property in violation of Section 28 below.
(9) Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
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B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the
following:
(1) Declare all Excess Sales Proceeds immediately due and payable without
further demand, accelerate payments due under the City Note and invoke the power of sale under
the City Deed of Trust;
(2) Apply to a court of competent jurisdiction for such relief at law or in
equity as may be appropriate;
(3) Declare a Default under the City Note and the City Deed of Trust and
pursue all City remedies under the City Note and the City Deed of Trust; and
(4) Exercise the City Option upon Default as described in Section 21 below.
19. NOTICE AND CURE
Upon a violation of any of the provisions of this Agreement, the City Note or the City
Deed of Trust, the City may give written notice to the Owner specifying the nature of the
violation and requesting a cure. If the violation is not corrected to the satisfaction of the City
within a reasonable period of time, not longer than thirty (30) days from the date the notice is
mailed, or within such further time as the City determines is necessary to correct the violation, or
if the Owner is in default under any other mortgage loan on the Property, the City may declare a
Default under this Agreement. If the violation is failure to owner occupy or rental of the
Property, the Owner shall be given sixty (60) days from the date the notice is mailed to correct
that violation and remit all Unauthorized Rental Proceeds to the City before the City may declare
a Default.
The City shall notify First Lender at the address provided by the First Lender to the City
in the manner set 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 Property 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 provided in Sections 18 and 21.
In the event of default and foreclosure under the First Lender Loan or any other mortgage
loan on the Property, the City shall have the same right as the Owner to cure defaults and redeem
the Property prior to the foreclosure sale. Nothing herein shall be construed as creating any
14
CA 5/12/2011
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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
Property shall commence from the date a notice of default is given by the City to the Owner.
21. PURCHASE OPTION UPON DEFAULT
A. Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Purchase Option provided in Section 12, the Owner hereby
grants to the City or the City Designated Purchaser the option to purchase the Property effective
upon the declaration of a Default by the City pursuant to Section 18 and Section 19 above, and
subject to notice and cure rights set forth in Section 19. Said option to purchase is given in
consideration of the economic benefits received by the Owner resulting from ownership of the
Property made possible by the financial assistance of the City in the purchase of the Property.
B. Exercise of Option. The option to purchase may be exercised upon a Default
under this Agreement or upon default under any promissory note, deed of trust or any other lien,
including a judgment lien, recorded against the Property. The City shall have thirty (30) days
after a Default is declared to notify the Owner and the First Lender of its decision to exercise its
option to purchase. Not later than ninety (90) days after the notice is given by the City to the
Owner of the City's intent to exercise its option, the City shall purchase the Property for the
Maximum Restricted Resale Price set forth in Section 14. The City may assign its rights to
purchase the Property under this section to a City Designated Purchaser.
22. NONLIABILITY OF THE CITY
A. No Obligation to Exercise Option. The City shall have no obligation to exercise
any option granted it under this Agreement. In no event shall the City become in any way liable
or obligated to the Owner or any successor-in-interest to the Owner by reason of its option to
purchase under Sections 12 and 21 nor shall the City be in any way obligated or liable to the
Owner or any successor-in-interest to the Owner for any failure to exercise its option to
purchase.
B. Nonliability for Negligence. Loss, or Damage. Owner acknowledges,
understands and agrees that the relationship between Owner and the City is solely that of an
owner and an administrator of a City inclusionary housing program, and that the City does not
undertake or assume any responsibility for or duty to Owner to select, review, inspect, supervise,
pass judgment on, or inform Owner of the quality, adequacy or suitability of the Property or any
other matter. The City owes no duty of care to protect Owner against negligent, faulty,
inadequate or defective building or construction or any condition of the Property and Owner
agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert
any right or action against the City for any loss, damage or other matter arising out of or
resulting from any condition of the Property and will hold the City harmless from any liability,
loss or damage for these things.
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C. Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from
all losses, damages, liabilities, claims, actions, judgments, costs including expenses, and
reasonable attorneys fees that the City 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. This provision shall survive the term of the Agreement.
23. RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Property through a deed in lieu of foreclosure, a trustee's
deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent
that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited
to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder
of such excess proceeds (in addition to other amounts due to the City pursuant to the City Note
and this Agreement) to pay such proceeds to the City in consideration of the benefits received by
the Owner through purchase of the Property under this Agreement.
24. RESTRICTION ON INSURANCE PROCEEDS
If the Property is damaged or destroyed and the Owner elects not to rebuild or repair the
Property, the Owner shall pay the City the portion of any insurance proceeds received by the
Owner for such destruction or damage which is in excess of the Maximum Restricted Resale
Price calculated pursuant to Section 14 above.
25. TERM OF AGREEMENT
All the provisions of this Agreement, including the benefits and burdens, run with the
land and the Property and this Agreement shall bind, and the benefit hereof shall inure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors until the earlier of (i) forty-five (45) years from the date of
recordation of this Agreement or (ii) the date of Transfer of the Property to the City or another
purchaser in compliance with this Agreement (including execution by the purchaser of a new
resale restriction agreement for the benefit of the City).
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.
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27. SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of the First Lender Loan and shall not impair the rights of the First
Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender
Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such
remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a
deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Agreement shall be forever 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, 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
The outstanding principal on the City Note shall not be due upon prepayment and
refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be
subordinated to the refinanced First Lender Loan, provided that (i) such refinancing is approved
by the City, (ii) the amount refinanced does not exceed the outstanding principal balance of the
First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance
does not result in higher monthly payments on the First Lender Loan than were due prior to the
refinance. Mortgage loans or equity lines of credit junior in lien priority to the City deed of trust
are not permitted. The City and the Owner agree that the requirements of this section are
necessary to ensure the continued affordability of the Property to Owner and to minimize the risk
of loss of the Property by Owner through default and foreclosure of mortgage loans. Owner
further acknowledges that violation of the provisions of this section shall constitute a Default
under this Agreement. A form for use by the Owner in requesting City subordination to a
refinanced First Lender Loan is attached hereto as Exhibit F.
29. NONDISCRIMINATION
The Owner covenants by and for itself and its successors and assigns that there shall be
no discrimination against or segregation of a person or of a group of persons on account of race,
color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the
Owner or any person claiming under or through the Owner establish or permit any such practice
or practices of discrimination or segregation with reference to the use, occupancy, or transfer of
the Property. The foregoing covenant shall run with the land.
17
CA 5/12/2011
14562
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 Property in compliance with Section 28 above.
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Property, and (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief, or (ii) the Owner is
undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment
(TMAP) program.
32. INVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
33. NOTICES
All notices required herein shall be sent by certified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on the delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or the date
Notice was returned as undeliverable as follows:
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CA 5/12/2011
14563
To Owner(s):
579 Laguna Drive
Carlsbad, CA 92008
To the City:
City of Carlsbad
Housing and Neighborhood Services
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Homebuyer Program
To the First Lender:
NA
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
Property 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.
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C A 5/1 2/20 1
14564
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.
OWNER:
Michael D. jCor
Owner Signature
Print Name
Owner Signature Date
CITY OF CARLSBAD:
By:.
Name:
Title:
Date:
(Proper notarial acknowledgment of execution by Owner must be attached)
20
CA 5/12/2011
14565
CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
On
ss
(j)before me, JENNIFER CLEMENTS, NOTARY PUBLIC personally appeared:
who 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.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand an official seal.
SIGNATURE
JENNIFER CLEMENTS
COMM. #1778202 z
Notary Public - California g
San Diego County
Mv Comm. Expires Nov. 5,2011
This area for official notarial seal.
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying
on the document and could prevent fraudulent removal and reattachment of this form to another document.
DESCRIPTION OF ATTACHED DOCUMENT
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) other than named above.
CAPACITY(IES) CLAIMED BY SIGNER(S)
D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
D PARTNER(S)-D LIMITED
D GENERAL
D ATTORNEY-IN-FACT
DTRUSTEE(S)
D GUARDIAN OR CONSERVATOR
DOTHER
SIGNER IS REPRESENTING:
Right Thumbprint
Of Signer
Top of thumb here
D INDIVIDUAL
D CORPORATE OFFICER(S)
TITLE(S)
n PARTNER(S)- D LIMITED
D GENERAL
n ATTORNEY-IN-FACT
DTRUSTEE(S)
D GUARDIAN OR CONSERVATOR
D OTHER
Right Thumbprint
of Signer
Top of thumb here
CALIFORNIA ALL-PURPOSE 14566
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of
On
personally appeared
who proved to me on the basis of satisfactory evidence to be the person^) whose name(s} is/are, subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/KerTtheir authorized
capacity(ks^, and that by his/herytheuusignaturefs}-on the instrument the person(^, or the entity upon behalf of
which the person^) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
(Hitsinsert name andtitle f the officer)
WITNESS my hand and official seal
Signature of Notary Publ (Notary Seal)
MORGEN FRY
Commission # 1918442
Notary Public - Californii
San Diego County
My Comm. Expires Dec 24.2014
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
D Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
D Trustee(s)
D Other
INSTRUCTIONS FOR COMPLETING THISJFORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document The only exception is if a
document is to be recorded outside of Californipt'in such instances, any alternative
acknowledgment verbiage as may be prints* on such a document so long as the
verbiage does not require the ntttary. tq^O something that is illegal for a notary in
California (i.e. certifying the autfKpiied capacity of the signer). Please check the
document carefully for proper notlfrial wording and attach this form if required.
• State and County inftrfmation must be the State and County where the document
signer(s) personprty appeared before the notary public for acknowledgment.
• Date of nojarfzation must be the date that the signer(s) personally appeared which
must ajsooe the same date the acknowledgment is completed.
notary public must print his or her name as it appears within his or her
Commission followed by a comma and then your title (notary public).
Print the name(s) of document signer(s) who personally appear at the time of
notarization.
Indicate the correct singular or plural forms by crossing off incorrect forms (i.e.
tw/she/theyr is /are ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
Signature of the notary public must match the signature on file with the office of
the county clerk.
•;• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
Indicate title or type of attached document, number of pages and date.
Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
Securely attach this document to the signed document
•<•
•£•
2008 Version CAPA vl 2.10.07 800-873-9865 www.NotaryClasses.com
14567
EXHIBIT "A"
THE LAND REFERRED TO HEREIN IS SITUATED IN THE COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
A CONDOMINIUM COMPRISED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA
OF PHASE 3 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM PLAN (THE
"CONDOMINIUM PLAN") RECORDED ON FEBRUARY 11, 2005, AS DOCUMENT NO. 2005-0117224,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT 1 OF
CARLSBAD TRACT MAP CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST HEREBY
CONVEYED IS THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE
CONDOMINIUM PLAN AS BEING WITHIN PHASE 3 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
EXCEPT THEREFROM THE OIL, GAS, MINERALS, AND OTHER HYDROCARBON SUBSTANCES LYING
BELOW THE SURFACE OF SAID LAND, AS PROVIDED IN DEEDS OF RECORD.
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 43, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS):
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLAN
AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE
ASSOCIATION PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION OF
COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR
MULBERRY AT BRESSI RANCH RECORDED ON MARCH 10, 2005 AS INSTRUMENT NO. 2005-
0197712, OF OFFICIAL RECORDS), EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT
HEREBY RESERVED, WHICH IS APPURTENANT TO THE LIVING UNIT DESCRIBED ABOVE, IS FOR
ACCESS AND USE OF THE ASSOCIATION PROPERTY, SUBJECT TO THE PROVISIONS OF THE
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF
EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES AND REGULATIONS OF THE
MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL
BENEFIT CORPORATION.
ASSESSOR'S PARCEL NUMBER: 213-190-05-03
14568
EXHIBIT B
FORM OF OWNER OCCUPANCY CERTIFICATION
To: City of Carlsbad ("City")
From: [name of owner(s)] ("Owner(s)")
Address of Property: ("Property")
Date:
By signature below, I [insert name or names of
Owner(s) ] hereby certify to the City under penalty of perjury that I/we occupy the home located
at [insert address] ("Property") as my/our
principal place of residence and that I/we have occupied the Property for ( )
[insert number] months of the calendar year [insert previous calendar year].
Attached to this letter is a copy of [insert utility bill or driver's license] showing
my place of residence.
This Owner Occupancy Certification is signed on , 20 , under penalty of
perjury.
By:_
Owner signature
Date:
By:
Owner signature
Date:
Due Date: of each calendar year.
Attach copy of utility bill or driver's license showing address of Home.
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EXHIBIT C
FORM OF OWNER'S NOTICE OF INTENT TO TRANSFER
To: City of Carlsbad ("City")
From: [name of owner(s)] ("Owner(s)")
Address of Property: ("Property")
Date:
Please be notified pursuant to Section 8 of the Resale Restriction Agreement and Option to
Purchase between Owner and City dated , that the Owner intends to transfer the
Property listed above.
A. The following information is provided to the City pursuant to Section 8 of the Resale
Agreement:
1. Address of Property:
2. Date Owner purchased Property:
3. Original Affordable Purchase Price:
4. Original amount of Homebuyer Loan:
5. Full Purchase Price:
6. Date Owner intends to vacate Property:
7.. Date Property will be placed on market:
8. Name and phone number of person for City to contact to schedule inspection:
and
(name) (phone number)
B. As required by Section 8 of the Resale 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:
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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,
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 the date(s) below under penalty of perjury.
By:.
Owner signature
Date:
By: .
Owner signature
Date:
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14571
EXHIBIT D
FORM OF CITY RESPONSE NOTICE
To: ("Owner(s)")
From: City of Carlsbad ("City")
Address of Property: ("Property")
Date:
Thank you for delivering the Notice of Intent to Transfer. This letter is the City Response Notice
described in Section 10 of the Resale Agreement that was recorded against title to your home.
The City:
1. City will check this Sentence #1 and complete other information listed in #1 if the
City intends to exercise its option to purchase the Property or assign its option to the Property to
a Designated Purchaser at any point during the entire Term of Resale Agreement
A. Affordable Sales Price: $
B. Amount owed on Homebuyer Loan: $
C. Full Sales Price (add numbers in 1 (A) and 1 (B)): $_
D. Fair Market Value (as estimated by the City): $
The Price for which you may sell your Property (or the Maximum Restricted Resale
Price)
(the greater of 1(C) and 1(D)): $
In connection with the City's Option, you will owe a $ to City.
If the City has assigned its option, the name of Designated Purchaser is
The City or its Designated Purchaser will follow up with you to complete the sale of your
Property. If a Designated Purchaser purchases your Property, that Designated purchaser may
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14572
assume the amount you owe on the Homebuyer Loan. If the City purchases your Property the
amount you owe on the Homebuyer Loan shall credited against the purchase price e paid by the
City.
2. City will check this Sentence #2 and complete other information listed in #2 if
the City intends for Owner to sell the Property to an Eligible Purchase during years 1-15 of the
Resale Agreement.
A. Affordable Sales Price: $
B. Amount owed on Homebuyer Loan: $
C. Full Sales Price (add numbers in 1 (A) and 1 (B)): $_
D. Fair Market Value (as estimated by the City): $
The total price for which you may sell your Property (or the Maximum Restricted Resale
Price) (the greater of 1 (C) and 1 (D)): $
As noted in 2(B) above, the amount owed on the Homebuyer Loan is $ . An
Eligible Purchaser is likely to assume the City Note and will then agree to repay the
amount of the Homebuyer Loan.
You must market your Property to an "Eligible Purchaser" as required by Section 15 of
the Resale Agreement.
The Maximum Qualifying Income of Eligible Purchaser is:
Low Income Household
1 person household $
2 person household $
3 person household $
4 person household $
5 person household $
6 person household $
Moderate Income Household
1 person household $_
CA 5/12/2011
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2 person household $_
3 person household $_
4 person household $_
5 person household $_
6 person household $_
When you locate a proposed purchaser of your Property, you must provide the City with
the information listed in Section 15(B) of the Resale Agreement and 15(D)(1) through (4). Upon
sale of your Property to a proposed purchaser who has been approved by the City as an Eligible
Purchaser, you must provide the information required by Section 15(D)(5) through (7).
3. The City will check this Sentence #3 if it does not wish to exercise or assign its
option to purchase the Property between the 16th year of the Resale Agreement and the end of the
Term. At this point you may proceed to sell your Property to a third party for a market price.
Upon sale of the Property, you must provide the City with the information required by Section
17 of the Resale Agreement. You also you must repay $ to the City as required by
the City Promissory Note.
City:
Name:
Title: _
Date:
Designated Purchaser (if applicable):
Name: Name:
Date: Date:
All questions regarding this notice should be directed to
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EXHIBIT E
FORM OF OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
Name:
Address of Property:
I (We), [insert name(s)] hereby acknowledge that I (We)
received the City Response Notice (as described in Section 10 of the Resale Agreement on
[insert date(s)].
By:.
Owner signature
Date :
By:.
Owner signature
Date:
E-l
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14575
EXHIBIT F
FORM OF OWNER REQUEST FOR CITY SUBORDINATION
TO REFINANCED FIRST LENDER LOAN
To: City of Carlsbad ("City")
From: ("Owner(s)")
Property Address: ("Property")
The Owner hereby requests the City to approve the Owner's refinance of the existing first
mortgage on the Property. The Owner provides the following information which it certifies to be
true and correct:
1. Original Affordable Purchase Price of Property: $
2. Original Homebuyer Loan Amount
3. Full Purchase Price of Property (1 plus 2) $
3. Original principal balance of existing First Lender Loan: $
4. Interest rate of existing First Lender Loan: $
5. Outstanding principal balance of existing First
Lender Loan: $
6. Monthly payments due on existing First Lender Loan $
7. Principal amount of proposed new First Lender Loan: $
8. Interest rate of Proposed new First Lender Loan: $
9. Monthly payments to be due on new First Lender Loan: $
The Owner hereby certifies the above information is true and correct and this Owner(s) Request
is executed under penalty of perjury on the date(s) below.
By:.
Owner signature Date
By: :
Owner signature Date
CA 5/12/2011