HomeMy WebLinkAboutLLEWELLYN, RYAN; 2011-04-13;DQCtt 2011-0192282
Recording Requested by:
First American Title
Subdivision Sale-Out
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
4681
APR 13, 2011 8:00 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dmnenbuig, Jr., COUNTY RECORDER
FEES 0.00 WAYS: 2
DA: 1
PAGES: 13
(Space above for Recorder's Use)
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING CERTAIN ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
this 7th day of December, 2010. among Ryan Llewellyn, a Single ManC'Borrower") as trustor, and
First American Title Company ("Trustee"), and the City of Carlsbad, a municipal corporation (the
"City"), as beneficiary.
The Borrower, in consideration of the promises herein recited and the trust herein created,
irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the
property located in the City of Carlsbad, State of California, described in the attached Exhibit A
(the "Property").
TOGETHER with all the improvements now or hereafter erected on the property, and all
easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of
which, including replacements and additions thereto, shall be deemed to be and remain a part of the
property covered by this Deed of Trust; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to or
used in and about the building or buildings now erected or hereafter to be erected on the Property
which are necessary to the complete and comfortable use and occupancy of such building or
buildings for the purposes for which they were or are to be erected, including all other goods and
chattels and personal property as are ever used or furnished in operating a building, or the activities
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conducted therein, similar to the one herein described and referred to, and all renewals or
replacements thereof or articles in substitution therefore, whether or not the same are, or shall be
attached to said building or buildings in any manner; and all of the foregoing, together with the
Property, is herein referred to as the "Security";
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by a promissory note in the
amount of One Hundred Forty-One Thousand Nine Hundred Ninety-Three Dollars ($141,993)
executed by the Borrower to the City as of the date of this Deed of Trust (the "Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced in
accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained; and
TO SECURE to the City the performance of the covenants and agreements of Borrower
contained in that certain Resale Restriction Agreement and Option to Purchase executed by and
between the Borrower and the City of even date herewith (the "Resale Agreement") and to secure
the payment of Excess Sales Proceeds (as defined in the Resale Agreement) that may become due
by Borrower to City;
TO SECURE the performance of any obligations of Borrower in any other agreements with
respect to the financing of the Property or the Security the failure of which would adversely affect
Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1. Borrower's Estate. That the Borrower is lawfully seized of the estate hereby
conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the
Security is encumbered only by: (a) that deed of trust executed by the Borrower in connection with
a loan made to the Borrower by San Diego Habitat for Humanity or its successors and assigns (the
"First Lender"), dated *** , executed by the Borrower in favor of First Lender, and recorded in
the County of San Diego on _*** , and assigned Recorder's Serial No. ***_ (the "First Lender
Deed of Trust"), securing a promissory note executed by the Borrower in favor of the First Lender
("First Lender Note"), to assist in the purchase of the Property; (b) the Resale Agreement; and (e)
other subordinate financing previously approved by the City. 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.)
*** RECORDED CONCURRENTLY HEREWITH
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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. The Note
contains the following provisions prohibiting assumption:
"The Borrower acknowledges that this Note is given in connection with the purchase of the
Home as part of programs of the City and Agency to assist in the purchase of homes by lower
income persons. Consequently, this Note is assumable only by Eligible Purchasers (as defined in
Section 15B of the Resale Agreement) of the Home. The Note is due in full upon all other
Transfers (as defined in Section 7 of the Resale Agreement). In the event this Note is assumed by
an Eligible Purchaser, the Eligible Purchaser shall execute a new note, which shall be in an amount
equal to the principal and Contingent Interest owed by Borrower, a new deed of trust and a new
resale restriction agreement with new forty-five (45) year terms in forms approved by the City.
Any Eligible Purchaser assuming the Note shall be obligated to ensure that the new deed of trust
and resale restriction agreement shall remain in at least the same order of priority as the Homebuyer
Deed of Trust and Resale Agreement."
3. First Lender Loan. The Borrower will observe and perform all of the covenants and
agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender loan
documents.
4. Resale Agreement. The Borrower will observe and perform all of the covenants and
agreements of the Resale Agreement.
5. Charges; Liens. The Borrower will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority over this Deed of
Trust, by the Borrower making any payment, when due, directly to the payee thereof. Upon request
of City, the Borrower will promptly furnish to the City all notices of amounts due under this
paragraph, and in the event the Borrower makes payment directly, the Borrower will promptly
discharge any lien which has priority over this Deed of Trust; provided, that the Borrower will not
be required to discharge the First Lender Deed of Trust or any other lien described in this paragraph
so long as the Borrower will agree in writing to the payment of the obligation secured by such lien
in a manner acceptable to the City, or will, in good faith, contest such lien by, or defend
enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien
or forfeiture of the Security or any part thereof.
6. Insurance. The Borrower will keep the Security insured with a an all-risk property
insurance policy in at least an amount equal to the replacement cost of the Security (adjusted every
five (5) years by appraisal if requested by City) naming the City as an additional insured and loss
payee. If the Security is located in a flood plain, borrower shall obtain flood insurance. In no event
shall the amount of insurance be less than the amount necessary to prevent the Borrower from
becoming a co-insurer under the terms of the policy.
The insurance carrier providing this insurance shall be licensed to do business in the State
of California and be chosen by the Borrower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal Home
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Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing
and Urban Development, the United States Department of Veterans Affairs, or successors thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and will
include a standard mortgagee clause with standard lender's endorsement in favor of the holder of
the First Lender Note and the City as their interests may appear and in a form acceptable to the
City. The City shall have the right to hold, or cause its designated agent to hold, the policies and
renewals thereof, and the Borrower shall promptly furnish to the City, or its designated agent, the
original insurance policies or certificates of insurance, all renewal notices and all receipts of paid
premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and
the City or its designated agent. The City, or its designated agent, may make proof of loss if not
made promptly by the Borrower. The City shall receive thirty (30) days advance notice of
cancellation of any insurance policies required under this section.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject to
the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of Trust is
not thereby impaired. If such restoration or repair is not economically feasible or if the security of
this Deed of Trust would be impaired, the insurance proceeds will be used, subject to the rights of
the First Lender, to repay the loan evidenced by the Note and all sums secured by this Deed of
Trust, with the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower,
or if the Borrower fails to respond to the City, or its designated agent, within thirty (30) days from
the date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle
a claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of Trust.
If the Security is acquired by the City, all right, title and interest of the Borrower in and to
any insurance policy and in and to the proceeds thereof resulting from damage to the Security prior
to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed of
Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
7. Preservation and Maintenance of Security. The Borrower will keep the Security in
good repair in a neat clean and orderly condition and will not commit waste or permit impairment
or deterioration of the Security. If there arises a condition in contravention of this section, and if
the Borrower has not cured such condition within thirty (30) days after receiving a City notice of
such a condition, then in addition to any other rights available to the City, the City shall have the
right (but not the obligation) to perform all acts necessary to cure such condition, and to establish or
enforce a lien or other encumbrance against the Security to recover its cost of curing.
8. Protection of the City's Security. If the Borrower fails to perform the covenants and
agreements contained in this Deed of Trust, the Resale Agreement, the First Lender Note, the First
Lender Deed of Trust, or if any action or proceeding is commenced which materially affects the
City's interest in the Security, including, but not limited to, default under the First Lender Deed of
Trust, the First Lender Note or any other deed of trust encumbering the Property, eminent domain,
insolvency, code enforcement, or arrangements or proceedings involving a bankrupt or decedent,
then the City, at the City's option, upon notice to the Borrower, may make such appearances,
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disburse such sums and take such action as it determines necessary to protect the City's interest, Av/O w
including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security
to make repairs.
Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will
become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and
City agree in writing to other terms of payment, such amount will be payable upon notice from the
City to the Borrower requesting payment thereof, and will bear interest from the date of
disbursement at the lesser often percent (10%) or the highest rate permissible under applicable law.
Nothing contained in this paragraph will require the City to incur any expense or take any action
hereunder.
9. Inspection. The City may make or cause to be made reasonable entries upon and
inspections of the Security; provided that the City will give the Borrower reasonable notice of
inspection.
10. Hazardous Substances. Borrower shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not
do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage
on the Property of small quantities of Hazardous Substances that are generally recognized to be
appropriate to normal residential uses and to maintenance of the Property.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
Borrower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving the
Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any
removal or other remediation of any Hazardous Substance affecting the Property is necessary,
Borrower shall promptly take all necessary remedial actions in accordance with Environmental
Law.
11. Nondiscrimination.
(1) There shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) and (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955 and Section 12955.2 of the Government Code in
the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the property nor shall the
transferee or any person claiming under or through the transferee establish or permit any such
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practice or practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land.
(2) Notwithstanding paragraph (1), with respect to familial status, paragraph (1) shall
not be construed to apply to housing for older persons, as defined in Section 12955.9 of the
Government Code. With respect to familial status, nothing in paragraph (1) shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to housing for
senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil Code and subdivisions
(n), (o), and (p) of Section 12955 of the Government Code shall apply to paragraph (1).
12. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
Borrower and lender and Borrower and the administrator of the City affordable homeownership
housing program, and that the City does not undertake or assume any responsibility for or duty to
Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality,
adequacy or suitability of the Security or any other matter. The City owes no duty of care to
protect Borrower against negligent, faulty, inadequate or defective building or construction or any
condition of the Security and Borrower agrees that neither Borrower, or Borrower's heirs,
successors or assigns shall ever claim, have or assert any right or action against the City for any
loss, damage or other matter arising out of or resulting from any condition of the Security and will
hold City harmless from any liability, loss or damage for these things.
13. Indemnity. Borrower agrees to defend, indemnify, and hold the City of Carlsbad
and the Carlsbad Redevelopment Agency harmless from all losses, damages, liabilities, claims,
actions, judgments, costs, and reasonable attorneys' fees that the City may incur as a direct or
indirect consequence of:
a. Borrower's failure to perform any obligations as and when required by the
Note, Resale Restriction Agreement, and this Deed of Trust; or
b. The failure at any time of any of Borrower's representations or warranties to
be true and correct.
14. Default: Remedies. Upon the Borrower's breach of any covenant or agreement of
the Borrower in the Note, Resale Agreement or this Deed of Trust, including, but not limited to, the
covenants to pay, when due, any sums secured by this Deed of Trust, the City, prior to acceleration,
will send, in the manner set forth in Section 24 of this Deed of Trust, notice to the Borrower
specifying: (1) the breach; (2) if the breach is curable, the action required to cure such breach; (3) a
date, not less than thirty (30) days from the date the notice is effective as set forth in Section 24 of
this Deed of Trust, by which such breach, if curable, is to be cured; and (4) if the breach is curable,
that failure to cure such breach on or before the date specified in the notice may result in
acceleration of the sums secured by this Deed of Trust and sale of the Security. The notice will
also inform the Borrower of the Borrower's right to reinstate after acceleration and the right to bring
a court action to assert the nonexistence of default or any other defense of the Borrower to
acceleration and sale. If the breach is not curable or is not cured on or before the date specified in
the notice, the City, at the City's option, may: (a) declare all of the sums secured by this Deed of
Trust to be immediately due and payable without further demand and may invoke the power of sale
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and any other remedies permitted by California law; (b) either in person or by agent, with or
without bringing any action or proceeding, or by a receiver appointed by a court, and without
regard to the adequacy of its security, enter upon the Security and take possession thereof (or any
part thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any
acts which it deems necessary or desirable to preserve the value or marketability of the Security, or
part thereof or interest therein, increase the income therefrom or protect the security thereof. The
entering upon and taking possession of the Security shall not cure or waive any breach hereunder or
invalidate any act done in response to such breach and, notwithstanding the continuance in
possession of the Security, the City shall be entitled to exercise every right provided for in this
Deed of Trust, or by law upon occurrence of any uncured breach, including the right to exercise the
power of sale; (c) commence an action to foreclose this Deed of Trust as a mortgage, appoint a
receiver, or specifically enforce any of the covenants hereof; (d) deliver to the Trustee a written
declaration of default and demand for sale, pursuant to the provisions for notice of sale found at
California Civil Code Sections 2924, et seq.. as amended from time to time; or (e) exercise all other
rights and remedies provided herein, in the instruments by which the Borrower acquires title to any
Security, or in any other document or agreement now or hereafter evidencing, creating or securing
all or any portion of the obligations secured hereby, or provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
15. Acceleration. Upon the occurrence of a default under the Note, the Resale
Agreement, this Deed of Trust, the First Lender Note, or the First Lender Deed of Trust, the City
shall have the right to declare the full amount of the principal along with any interest under the
Note immediately due and payable. Any failure by the City to pursue its legal and equitable
remedies upon default shall not constitute a waiver of the City's right to declare a default and
exercise all of its rights under the Note, the Resale Agreement, and this Deed of Trust. Nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed.
16. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the sums
secured by this Deed of Trust, the Borrower will have the right to have any proceedings begun by
the City to enforce this Deed of Trust discontinued at any time prior to five (5) days before sale of
the Security pursuant to the power of sale contained in this Deed of Trust or at any time prior to
entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all sums, if any,
which would be then due under this Deed of Trust and no acceleration under the Note has occurred;
(b) the Borrower cures all breaches of any other covenants or agreements of the Borrower
contained in the Note, Resale Agreement or this Deed of Trust; (c) the Borrower pays all
reasonable expenses incurred by City and the Trustee in enforcing the covenants and agreements of
the Borrower contained in the Note, Resale Agreement or this Deed of Trust, and in enforcing the
City's and the Trustee's remedies, including, but not limited to, reasonable attorney's fees; and (d)
the Borrower takes such action as City may reasonably require to assure that the lien of this Deed
of Trust, City's interest in the Security and the Borrower's obligation to pay the sums secured by
this Deed of Trust shall continue unimpaired. Upon such payment and cure by the Borrower, this
Deed of Trust and the obligations secured hereby will remain in full force and effect as if no
acceleration had occurred.
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17. Forbearance by the City Not a Waiver. Any forbearance by the City in exercising
any right or remedy will not be a waiver of the exercise of any such right or remedy, nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed. The procurement of
insurance or the payment of taxes or other liens or charges by the City will not be a waiver of the
City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
18. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and
cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently, independently or successively.
19. Reconveyance. Upon payment of all sums secured by this Deed of Trust and the
expiration of the Resale Agreement, the City will request the Trustee to reconvey the Security and
will surrender this Deed of Trust and the Note to the Trustee. The Trustee will reconvey the
Security without warranty and without charge to the person or persons legally entitled thereto.
Such person or persons will pay all costs of recordation, if any.
20. Substitute Trustee. The City, at the City's option, may from time to time remove the
Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor trustee
will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable
law.
21. Subordination to First Lender Mortgage. Notwithstanding any other provision
hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender Deed
of Trust and shall not impair the rights of the First Lender, or the First Lender's successor or assign,
to exercise its remedies under the First Lender Deed of Trust in the event of default under the First
Lender Deed of Trust by the Borrower. Such remedies under the First Lender Deed of Trust
include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After
such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or upon assignment
of the First Lender Deed of Trust to the Secretary of the United States Department of Housing and
Urban Development (the "Secretary"), this Deed of Trust shall be forever terminated and shall have
no further effect as to the Property or any transferee thereafter; provided, however, if the holder of
such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in
lieu of foreclosure, or if the First Lender's Deed of Trust is assigned to the Secretary, this Deed of
Trust shall automatically terminate upon such acquisition of title or assignment to the Secretary
provided that (i) the City has been given written notice of default under such First Lender Deed of
Trust and (ii) the City shall not have cured or commenced to cure the default within such thirty
(30)-day period and given its firm commitment to complete the cure in the form and substance
acceptable to the First Lender. Borrower agrees to record any necessary documents to effect such
termination, if applicable.
22. Successors and Assigns Bound. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City
and the Borrower subject to the provisions of this Deed of Trust.
23. Joint and Several Liability. All covenants and agreements of the Borrower shall be
joint and several.
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468924. Notice. Except for any notice required under applicable law to be given in another
manner, all notices required in this Deed of Trust shall be sent by certified mail, return receipt
requested or express delivery service with a delivery receipt, or personally delivered with a delivery
receipt obtained, and shall be deemed to be effective as of the date shown on the delivery receipt as
the date of delivery, the date delivery was refused, or the date the notice was returned as
undeliverable as follows:
To the Owner:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Redevelopment Director
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
25. Controlling Law. This Deed of Trust shall be construed in accordance with and be
governed by the laws of the State of California.
26. Invalid Provisions. If any one or more of the provisions contained in this Deed of
Trust, Resale Agreement or the Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from the
remaining provisions, and this Deed of Trust, the Resale Agreement and the Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in this
Deed of Trust, Resale Agreement or the Note.
27. Captions. The captions and headings in this Deed of Trust are for convenience only
and are not to be used to interpret or define the provisions hereof.
28. Request for Notice.
City requests that copies of the notice of default and notice of sale be sent to City at the address set
forth in Section 24 above.
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IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date first
written above.
469B
Borrower
(Print Name)
Borrower
(Print Name)
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STATE OF CALIFORNIA
COUNTY
On )«£' %
Public, personally appeared
"6
, 20|0 before me,
Roberta L. Porter
Notary Public j Notary
, 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
foregojn^fparagsaph is true and corps
*T 7TWI j i rr- • tand and official
/o n(Seal)
ROBERTA LCOMM.f 1905324
NOTARY PUBLIC • CALIFORNIA •
SAN OEGO COUNTY
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4692
EXHIBIT A
Property Description
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EXHIBIT "A"
Legal Description of Property
Real property situated in the City of Carlsbad, County of San Diego, State of California, described as
follows:
Condominium No. 2 as shown upon the ROOSEVELT GARDEN CONDOMINIUM PLAN, recorded June
11, 2010, as Document No. 2010-0293333, in the Office of the County Recorder of San Diego County,
California ("Condominium Plan"), which is composed of the following portions of Lot 1 of CITY OF
CARLSBAD TRACT NO. 06-18 ROOSEVELT GARDEN CONDOMINIUMS, the City of Carlsbad, County
of San Diego, State of California, according to Map thereof No. 15635, filed with the Office of the County
Recorder of San Diego County, California, on October 29, 2007 ("Lot 1"), and the following easements:
PARCEL 1 (Living Unit):
The Living Unit with the same number as the Condominium described above.
PARCEL 2 (Common Area):
An appurtenant undivided fractional interest as tenant in common in and to the Common Area in
the Phase in which the Living Unit described in PARCEL 1 above is located equal to the
reciprocal of the number of Living Units within that Phase; the Common Area is shown and
described on the Condominium Plan.
PARCEL 3 (Easement Over Association Property):
Non-exclusive appurtenant easements in and to the Association Property now or hereafter owned
by Association. "Association Property" is defined in the Condominium Plan and in the
Declaration.
PARCEL 4 (Exclusive Use Area):
The exclusive right to use any Exclusive Use Area shown on the Condominium Plan as being
appurtenant to the Living Unit described in PARCEL 1 above.
PARCEL 5 (Access Over Drives):
A non-exclusive appurtenant easement for ingress and egress over the "Drives" within Lot 1,
pursuant and subject to the terms and provisions of the Access Declaration described in the Deed
to which this Exhibit is attached.
PARCEL 6 (Right to Use Parking Space):
The right to use 2 Assigned Parking Spaces pursuant to Section 17.1 of the Declaration.
RESERVING FROM ALL PARCELS all exceptions and reservations of record, including, but not limited
to, all rights and easements set forth in (i) the Declaration of Restrictions for Roosevelt Garden
Condominiums recorded June 11, 2010 as Document No. 2010-0293334 in the Office of the County
Recorder of San Diego County, California ("Declaration") and any presently existing or future
amendments to such Declaration; and (ii) the Deed and Declaration Establishing Access Easement
Rights recorded June 11, 2010 as Document No. 2010-0293335 in the Office of the County Recorder of
San Diego County, California ("Access Declaration") and any presently existing or future amendments to
such Access Declaration.
Recording Requested by:
First American Title
Subdivision Sale-Out DOCtt 2011-0192280
REGGftBING REQUESTED BY
CITY OF CARLSBAD
AND WHEN RECORDED MAIL, TO:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn; City Clerk
4644
APR 13, 2011 8:00 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenbutg, Jr., COUNTY RECORDER
FEES: 27.00
PAGES:
(Space above for Recorder's Use)
NOTICE OF AFFORD ABILITY RESTRICTIONS ON TRANSFER OF
PROPERTY
NOTICE IS HEREBY GIVEN, that the City of Carlsbad (the "City"), has
required Ryan Llewellyn, a Single Man(the "Owner") to enter into certain
affordability covenants and restrictions entitled, Affordability Restrictions on
Transfer of Property, Occupancy, and Refinancing Restrictions and Option to
Purchase (the "Restrictions"), with reference to certain real property (the
"Property"), located at 2562 Roosevelt Street, Carlsbad, San Diego County, 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.
1010\13\530682.1
4645
5. The Owner's rights to pledge the Property as security for a debt are
limited.
In the event of any conflict between this Notice of Affordability Restrictions on
Transfer of Property (the "Notice") and the Restrictions, the terms of the
Restrictions shall prevail.
The Restrictions have been recorded concurrently herewith and shall remain in
effect for forty-five (45) years commencing on the date of recordation of the
Restrictions.
This Notice is being recorded and filed by the Carlsbad Redevelopment Agency
(the "Agency") in compliance with Health and Safety Code Sections 33334.5(f)(3)
and (4) and/or Section 33413(b)(4), as amended effective this date, and shall be
indexed against the Agency 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:
CARLSBAD REDEVELOPMENT
AGENCY, a public body corporate and
politic
By: ;
Name:
Its: C.; /•
OWNER:
Ryan Llewellyn
R
1010\13\530682.1
4646
State of California
County
Roberta L. Porter
Notary Public _, Notary
Public, personally appeared , who proved to me on
the basis of satisfactory evidencWto be the person(s) whos^ 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 and official seal.
Signa
ROBERTAL PORTERlCOMM. #1905324 *
NOTARY PUBLIC • CALIFORNIA 3
SANDCGOCOUNTY *
lw Oct 22,2014 IwmMi^^
(Seal)
State of California
County
On QoflQ rwJhe^
Public, personally appeared
before me,
H i
Notary
> wno proved to me on. _
the basis of satisfactory evidence to be the person^ whose name(#)(is?!afe-subscribed to the
within instrument and acknowledged to me that-h«/^Kgft:hey executed the same in his/^e^fthei*-
authorized capacity(j^s), and that by-hts22^tfee»-signatureXs)-on the instrument the persoii^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 and official seal.
Signature
SHEILA RENAE COBIAN
Commission # 1848471
Notary Public - California
San Diego County
Comm. Expiret Miy 10.^2013
1010\13\530682.1
4647
EXHIBIT A
Legal Description
A-l
1010\13\530682.1
4648
EXHIBIT "A"
Legal Description of Property
Real property situated in the City of Carlsbad, County of San Diego, State of California, described as
follows:
Condominium No. 2 as shown upon the ROOSEVELT GARDEN CONDOMINIUM PLAN, recorded June
11, 2010, as Document No. 2010-0293333, in the Office of the County Recorder of San Diego County,
California ("Condominium Plan"), which is composed of the following portions of Lot 1 of CITY OF
CARLSBAD TRACT NO. 06-18 ROOSEVELT GARDEN CONDOMINIUMS, the City of Carlsbad, County
of San Diego, State of California, according to Map thereof No. 15635, filed with the Office of the County
Recorder of San Diego County, California, on October 29, 2007 ("Lot 1"), and the following easements:
PARCEL 1 (Living Unit):
The Living Unit with the same number as the Condominium described above.
PARCEL 2 (Common Area):
An appurtenant undivided fractional interest as tenant in common in and to the Common Area in
the Phase in which the Living Unit described in PARCEL 1 above is located equal to the
reciprocal of the number of Living Units within that Phase; the Common Area is shown and
described on the Condominium Plan.
PARCEL 3 (Easement Over Association Property):
Non-exclusive appurtenant easements in and to the Association Property now or hereafter owned
by Association. "Association Property" is defined in the Condominium Plan and in the
Declaration.
PARCEL 4 (Exclusive Use Area):
The exclusive right to use any Exclusive Use Area shown on the Condominium Plan as being
appurtenant to the Living Unit described in PARCEL 1 above.
PARCEL 5 (Access Over Drives):
A non-exclusive appurtenant easement for ingress and egress over the "Drives" within Lot 1,
pursuant and subject to the terms and provisions of the Access Declaration described in the Deed
to which this Exhibit is attached.
PARCEL 6 (Right to Use Parking Space):
The right to use 2 Assigned Parking Spaces pursuant to Section 17.1 of the Declaration.
RESERVING FROM ALL PARCELS all exceptions and reservations of record, including, but not limited
to, all rights and easements set forth in (i) the Declaration of Restrictions for Roosevelt Garden
Condominiums recorded June 11, 2010 as Document No. 2010-0293334 in the Office of the County
Recorder of San Diego County, California ("Declaration") and any presently existing or future
amendments to such Declaration; and (ii) the Deed and Declaration Establishing Access Easement
Rights recorded June 11, 2010 as Document No. 2010-0293335 in the Office of the County Recorder of
San Diego County, California ("Access Declaration") and any presently existing or future amendments to
such Access Declaration.
Recording Requested by:
First American Title
Subdivision Sale-Out DOCtt 2011-0192281
^ECORDINQ REQUES^BB-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
,ro
APR 13, 2011 8:00 AM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 138.00 WAYS: 3
PAGES: 32
(SPACE ABOVE THIS LINE FOR RECORDER'S USE)
AFFORD ABILITY RESTRICTIONS ON TRANSFER OF PROPERTY, OCCUPANCY AND
REFINANCING RESTRICTIONS, AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM - 2010
Owner: Ryan Llewellyn
Address of Home: 2562Roosevelt Street
Carlsbad, CA 92008
This Affordability Restrictions on Transfer of Property, Occupancy and Refinancing
Restrictions, and Option to Purchase (the "Agreement") is entered into as of this 7th day of
December, 20JJO, by and between the City of Carlsbad (the "City"), and Ryan Llewellyn, a
Single Man(the "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
(the "Homebuyer Program").
B. The Carlsbad Redevelopment Agency (the "Agency") and San Diego Habitat For
Humanity, Inc. ("Habitat") entered into that certain Disposition, Development and Loan
Agreement (the "DDLA") pursuant to which the Agency conveyed certain real property to
Habitat for the development of eleven (11) attached single-family dwelling units (the
"Development"), and pursuant to which the Agency made a loan to Habitat for the development
of the Development (the "Habitat Loan").
1010\13\495354.3
4650
C. Habitat has completed the construction of the Development and desires to convey
a unit within the Development, as more particularly described in the attached Exhibit A, (the
"Home") to the Owner. In connection with Habitat's sale of the Home to the Owner, the Agency
desires to convert a portion of the Habitat Loan to a loan to the Owner in the amount of One
Hundred Forty-One Thousand Nine Hundred Ninety-Three Dollars ($141,993) to assist the
Owner in purchasing the Home (the "Loan" or the "Homebuyer Loan").
D. As used herein, the term "Home " includes both the real property and all
improvements now or hereafter erected on the property and all easements, rights, appurtenances,
and all fixtures now or hereafter attached to the Property.
E. In order to fulfill Habitat's charitable purpose of providing home ownership
opportunities to low-income households and to insure the long-term affordability of the units
within the Development, including the Home, Habitat has recorded against the Development that
certain Declaration dated ***, as instrument number *** (the "Habitat Declaration").
F. The "Original Affordable Purchase Price" of the Home is One Hundred Eighteen
Thousand Seven Dollars ($118,007). The Original Affordable Purchase Price is the effective
price of the Home paid by the Owner. The actual price of the Home is equal to the Original
Affordable Purchase Price plus the amount of the Promissory Note, the Habitat Loan and other
financing approved by the Agency (the "Full Purchase Price"). Owner is a very-low income
household.
G. The Owner is receiving a First Lender Loan in the amount of Eighty-Eight
Thousand Seven Dollars ($88,007) (the "First Lender Loan") from San Diego Habitat for
Humanity (the "First Lender"). The First Lender Loan is secured by a deed of trust dated ***_,
executed by the Buyer in favor of First Lender and recorded in the County of San Diego on ***,
and assigned Recorder's Serial No. *** (the "First Lender Deed of Trust").
H. The Loan is evidenced by a promissory note in the amount of the Loan (the "City
Note"). This Agreement and the City Note shall be secured by a deed of trust (the "City Deed of
Trust") subordinate to the lien of First Lender Deed of Trust.
I. The purpose of this Agreement is to place resale controls on the Home, to provide
the City an option to purchase the Home at a restricted price and to ensure that the Owner
complies with the Homebuyer Program requirements.
J. 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). In accordance with Health and
Safety Code Section 33334.2(f)(3)(B), in connection with the Loan and this Agreement, the
Agency has caused the recordation of a "Notice of Affordability Restrictions on Transfer of
Property" against the Property.
*** RECORDED CONCURRENTLY HEREWITH
1010\13\495354.3
4651
K. 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).
(2) "Agreement" - first sentence of the Agreement on page 1.
(3) "City" - first sentence of the Agreement on page 1.
(4) "City Deed of Trust" - Recital H.
(5) "City Designated Purchaser" - Section 12B.
(6) "City Note" - Recital H.
(7) "City Option" - Section 12A.
(8) "City Response Notice" - Section 10.
(9) "Eligible Purchaser" Section 15B.
(10) "Extended Term" - IOC.
(11) "Excess Sales Proceeds" - Section 16.
(12) "Fair Market Value" - Section 14B.
(13) "First Lender" - Recital G.
(14) "First Lender Deed of Trust" - Recital E.
(15) "First Lender Loan" - Recital G.
(16) "Full Purchase Price" - Recital F.
1010\13\495354.3
4652
(17) "Full Sales Price" - Section 14A.
(18) "Home" - Recital C.
(19) "Homebuyer Loan" - Recital C.
(20) "HUD" - Section 30.
(21) "Initial Term"-1 OB.
(22) "Market Purchaser" - Section 1OC.
(23) "Maximum Restricted Resale Price" - Section 14.
(24) "Median Income" - Section 14A.
(25) "Original Affordable Purchase Price" - Recital F.
(26) "Owner" - first sentence of the Agreement on page 1.
(27) "Owner's Notice of Intent to Transfer" - Section 8.
(28) "Proposed Purchaser" - Section 15A.
(29) "Transfer" - Section 7.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A: Legal Description of Property (Home)
(2) Exhibit B: Form of Owner Occupancy Certification
(3) Exhibit C: Form of Owner's Notice of Intent to Transfer
(4) Exhibit D: Form of 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 Home is true and correct as of the date first written above, (ii) the
1010\13\495354.3 4
4653
Owner is an Eligible Purchaser, and (iii) the Owner shall occupy the Home as the Owner's
principal place of residence.
3. OCCUPANCY AND LEASING OF HOME
The Owner shall occupy the Home as the Owner's principal place of residence within
sixty (60) days of close of escrow on the Homebuyer Loan. Failure by the Owner to occupy the
Home as the Owner's principal place of residence shall constitute a default under this Agreement
for which the City may exercise its option to purchase pursuant to Section 21 below. The Owner
shall be considered as occupying the Home if the Owner is living in the unit for at least ten (10)
months out of each calendar year. The Owner shall provide an annual written certification in the
form shown in the attached Exhibit B, to the City that the Owner is occupying the Home as his or
her principal place of residence.
4. LEASING OF PROPERTY
The Owner shall not lease the Property to another party. Any lease of the Property in
violation of this Agreement is prohibited, and shall be a default under this Agreement and the
City Deed of Trust. The Owner further agrees that, in the event the Owner leases the Property to
a third party in violation of this section, any rents in excess of the Owner's monthly housing
payment, which includes the principal mortgage payment and interest, property taxes and
insurance ("Excess Rental Proceeds") paid to the Owner by the lessee which exceed the
Affordable Rent shall be due and payable to the City immediately upon receipt thereof by the
Owner. Such Excess Rental Proceeds shall be considered a recourse debt of the Owner to the
City, as evidenced by the Note, which the City may collect by legal action against the Owner
and/or by foreclosure under the City Deed of Trust.
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time homebuyer education class offered by
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 Home, including landscaping, in good repair and in
a neat, clean and orderly condition and will not commit waste or permit deterioration of the
Home. Failure by the Owner to maintain the Home shall constitute a default under this
Agreement for which the City may exercise the City Option to purchase the Home pursuant to
Section 21 below.
B. The Owner shall maintain a standard fire and extended coverage Home insurance
policy equal to the replacement value of the Home (adjusted every five (5) years by appraisal, if
1010\13\495354.3
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 Home will be subject to the provisions of this Agreement including,
without limitation, exercise of the City Option pursuant to Section 12 below. "Transfer " shall
mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home,
including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common
interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which
possession of the Home is transferred and Owner retains title. Any Transfer without satisfaction
of the provisions of this Agreement is prohibited. A Transfer shall not include a transfer: (i) to
an existing spouse or Domestic Partner who is also an obligor under the City Note; (ii) by the
Owner to a spouse or Domestic Partner where the spouse or Domestic Partner becomes the co-
owner of the Home; (iii) between spouses as part of a marriage dissolution proceeding; (iv) to an
existing spouse or Domestic Partner of Owner by devise or inheritance following the death of
Owner; (v) by Owner into an inter vivos revocable trust in which Owner is the 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 Home as his or her principal place of residence (except
where the transfer occurs pursuant to subsection (iii) or (iv) above, in which event the transferee
shall owner-occupy the Home and affirmatively assume Owner's obligations under this
Agreement, the City Note and the City Deed of Trust). For the purposes of this Section 7,
"Domestic Partners" shall mean two unmarried people, at least eighteen (18) years of age, who
have lived together continuously for at least one (1) year and who are jointly responsible for
basic living expenses incurred during their domestic partnership. For purposes of this section, an
individual shall be considered a Domestic Partner of Owner upon presentation of an affidavit or
other acceptable evidence by Owner to City.
8. NOTICE OF INTENDED TRANSFER
A. In the event the Owner intends to transfer (including without limitation all
"Transfers " as defined in Section 7) or vacate the 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 no later than the date the Owner notifies Habitat of Owner's desire to transfer the Home
in accordance with the Habitat Declaration, and prior to notifying real estate brokers or lenders
of Owner's intent to Transfer the Property and/or 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;
1010\13\495354.3
4655
(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, the Habitat Loan, and other
financing approved by the City).
(5) a copy of the HUD-1 Settlement Statement or equivalent document from
the close of escrow on the Owner's purchase of the Property;
(6) the date on which Owner intends to vacate Property;
(7) the date the Property will be placed on the market; and
(8) the name and phone number of the person to contact to schedule
inspection of the Property by the City.
9. OWNER PREPARATION OF 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. In the event Habitat fails to acquire the Home from the Owner in accordance with
the Habitat Declaration, then 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 (30) 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;
1010\13\495354.3
4656
(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 Home. The City Response Notice shall be sent within thirty (30) days of City receipt of
Owner's Notice of Intent to Transfer and shall include the City's calculation of the (i) Maximum
Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated
Purchaser and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below.
B. Initial Term: Owner Sale at a Restricted Sales Price to Eligible Purchaser.
Alternatively, the City Response Notice may notify the Owner that the City or a City Designated
Purchaser will not exercise the City Option to purchase the Home. In this case, if the Owner has
sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
Agreement (the "Initial Term"), the City Response Notice shall tell the Owner that the Owner
may proceed to sell the Home to an Eligible Purchaser at a price not to exceed the Maximum
Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set forth in
Section 14 below. In this event, the City Response Notice shall include the following
information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the
same income category as the Owner at the time of the Owner's purchase); (2) the certifications
required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may
receive for the Home, calculated by the City pursuant to Section 14 below; (4) whether
Homebuyer Program assistance from the City may be available to an Eligible Purchaser, (5)
Owner's repayment obligation as required by Section 13.
C. Extended Term Owner Sale to Market Purchaser. If the City Response Notice
notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option
to purchase the Home, and the Owner has sent the Notice of Intent to Transfer between the
fifteenth (15th) 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 Home to a third party at
any income level (the "Market Purchaser") for an unrestricted price. The City Response Notice
shall also inform Owner of Owner's repayment obligation as required by Section 13.
1010\13\495354.3
4657
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 Home.
12. CITY PURCHASE OPTION
A. The Owner agrees that if the Owner decides to Transfer the Home, the City shall
have the option to purchase the Home for the Maximum Restricted Resale Price calculated
pursuant to Section 14 of this Agreement (the "City Option"). The Owner shall pay the City a
transaction fee 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 Home. The City Option
may be exercised by the City or by a City Designated Purchaser in the City Response Notice. If
the City Response Notice notifies the Owner that the City or a City Designated Purchaser will
exercise the City Option to purchase the Home, the City or the City Designated Purchaser shall
purchase the Home within ninety (90) days of the date of the City Response Notice and title shall
be delivered by the Owner to the City by grant deed free and clear of any mortgage or other
liens, unless approved in writing by the City.
B. The City may assign the City Option to another public agency, a nonprofit
corporation, or an Eligible Purchaser selected by the City (any of which shall be referred to
herein as a "City Designated Purchaser"). If the City assigns the City Option to a City
Designated Purchaser, the City Response Notice shall be executed by the City Designated
Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City
Option in lieu of the City.
C. In the event of exercise of the City Option and purchase of the Home by the City
or a City Designated Purchaser, the Owner shall permit a final walk-through of the Home by the
City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the
Transfer.
13. REPAYMENT OF CITY NOTE
Upon any Transfer of the 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 Home, 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.
1010\13\495354.3
4658
14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price (the "Maximum Restricted Resale Price") is the amount that
the Owner shall receive from the resale of the Home from purchase of the Home by the City or
City Designated Purchaser or from other sale or Transfer by the Owner when the Owner sends
the Notice of Intent to Transfer. During the Initial Term, the Maximum Restricted Resale Price
shall be the Full Sales Price or the Fair Market Value, whichever is less.
A. Full Sales Price.
(1) The Full Sales Price of the Home 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 Home by the Owner to the date of receipt by the City of the Owner's Notice of
Intent to Transfer "Median Income" shall refer to the median yearly income, adjusted for a
household size of four, in San Diego County, as published by the California 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-Five Thousand
Five Hundred Dollars ($75.500).
(2) The Affordable Sales Price shall include a downward adjustment, where
applicable, in an amount necessary to repair any violations of applicable building, plumbing,
electric, fire or housing codes or any other provisions of the City of Carlsbad Building Code, as
well as any other repairs needed to put the Home into a "sellable condition". Items necessary to
put a Home into sellable condition shall be determined by the City, and may include cleaning,
painting and making needed structural, mechanical, electrical, plumbing and fixed appliance
repairs and other deferred maintenance repairs.
B. Fair Market Value. In certain circumstances it may be necessary to determine the
fair market value of the 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 Home to a Market Purchaser is comparable to
the Fair Market Value; and (3) to calculate the amount due under the City Note at the end of the
term of the City Note 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.
1010\13\495354.3 10
4659
15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE
OPTION TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the Home to
an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the Owner
may proceed to sell the Home in compliance with the following requirements:
A. Marketing. The Owner shall use bona fide good faith efforts to sell the Home to
an Eligible Purchaser in compliance with this section, including listing the Home on the Multiple
Listing Service, keeping the Home in an orderly condition, making the Home available to show
to agents and prospective buyers, and providing buyers with Eligible Purchaser requirements,
including income qualifications and the City's form of disclosure statement summarizing the
terms of the buyer's occupancy and resale restriction agreement with option to purchase. A
proposed purchaser ("Proposed Purchaser") who the Owner believes will qualify as an Eligible
Purchaser shall be referred to the City for an eligibility determination. If the Proposed Purchaser
qualifies as an Eligible Purchaser the City will also determine if such Eligible Purchaser is
eligible for City housing-related financial assistance that may be available at the time of resale.
B. Eligible Purchaser. A Proposed Purchaser shall qualify as an "Eligible Purchaser"
if he or she meets the following requirements, as determined by the City:
(1) Income Eligibility. The combined maximum income for all household
members of the Proposed Purchaser shall not exceed the income level designated by the City in
the City Response Notice.
(2) Intent to Owner Occupy. The Proposed Purchaser shall certify that he or
she will occupy the Home as to his or her principal place of residence throughout his or her
ownership. Co-signers are not required to occupy the Home.
(3) Agreement to Sign Resale Restriction Agreement and to Cooperate with
the City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting
future resale of the Home and shall agree to cooperate fully with the City in promptly providing
all information requested by the City to assist the City in monitoring the Proposed Purchaser's
compliance with the resale restriction agreement.
C. Maximum Restricted Resale Price. The purchase price for the sale of the Home
by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set forth in the City Response Notice.
The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego. 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 Home is likely to be the Affordable
Sales Price.
1010\13\495354.3 \\
4661
D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1) The name, address and telephone number in writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other supporting documentation requested by the City. The
financial information shall be used by the City to determine the income eligibility of the
Proposed Purchaser.
(3) The proposed sales contract and all other related documents which shall
set forth all the terms of the sale of the Home. Said documents shall include at least the
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for
the Owner's personal Home, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
(4) A written certification, from the Owner and the Proposed Purchaser in a
form acceptable to the City that the sale shall be closed in accordance with the terms of the sales
contract and other documents submitted to and approved by the City. The certification shall also
provide that the Proposed Purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract and documents submitted to the City. The written certification shall
also include a provision that in the event a Transfer is made in violation of the terms of this
Agreement or false or misleading statements are made in any documents or certification
submitted to the City, the City shall have the right to foreclose on the Home or file an action at
law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred
by the Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and
legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold
the City harmless and reimburse the City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5) An executed buyer's resale agreement and deed of trust to the City from
the Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is receiving
assistance from the Homebuyer Program, a promissory note to the City shall also be required.
The recordation of the new deed of trust and buyer's resale agreement shall be a condition of the
City's approval of the proposed sale.
(6) The name of the title company escrow holder for the sale of the Home, the
escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, certified copies of the recorded City
deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement
statement, escrow instructions, and any other documents which the City may reasonably request.
1010\13\495354.3 12
4661
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 Home 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 Home, 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 Home. This amount shall be a debt of the Owner to the City, further evidenced by the City
Note, and secured by the City Deed of Trust. The Owner acknowledges that the City shall have
no obligation to cause reconveyance of this Agreement or of the City Deed of Trust until the
Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales Proceeds for
City affordable housing programs. The Owner and the City acknowledge that the formula for
calculation of the amount of Excess Sales Proceeds due from the Owner to the City is intended to
cause the Owner to receive the same net sales proceeds (following payment by Owner of a
standard broker's commission) from sale of the Home at an unrestricted price to a market
purchaser (in violation of this Agreement) as the Owner would receive from sale of the Home to
the City, City Designated Purchaser or to an Eligible Purchaser at the Maximum Restricted
Resale Price.
17. SALE OF PROPERTY BY OWNER DURING EXTENDED TERM
In the event the City Response Notice notifies the Owner to proceed to sell the Home to a
Market Purchaser at a price greater than or equal to the Fair Market Value of the Home, the
Owner may proceed to sell the Home in compliance with the following requirements:
Upon any sale of the Home, the Owner shall submit to the City at least fifteen (15) days
prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a written
declaration, under penalty of perjury, from the Owner and the proposed purchaser in a form
acceptable to the City stating the gross sales price of the Home. The certification shall also
provide that the proposed purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the proposed purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract. At close of escrow, Owner shall submit to the City a copy of the
HUD-1 Settlement Statement showing the purchase price paid for the Home.
18. DEFAULTS
A. The following events shall constitute a Default by the Owner under this
Agreement:
1010\13\495354.3 13
4862
(1) The City determines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Home or in connection with its obligations under this
Agreement;
(2) The Owner fails to owner occupy the home, as required pursuant to
Section 3 above, and such failure continues following written notice by the City and sixty (60)
days opportunity to cure following the date of such notice.
(3) The Owner rents the Home in violation of Section 4 above, and such
failure continues following written notice by the City and sixty (60) days opportunity to cure.
(4) The Owner fails to provide information to the City necessary to determine
Owner's compliance with the requirements of this Agreement.
(5) The Owner makes a Transfer in violation of this Agreement;
(6) The Owner otherwise fails to comply with the requirements of this
Agreement and such violation is not corrected to the satisfaction of the City within ten (10) days
after the date of written notice by the City to the Owner of such violation; or
(7) A notice of default is issued under First Lender Loan or other financing
secured by the Home.
(8) A lien is recorded against the Home other than the lien of a bona fide
mortgage loan.
(9) Owner places a mortgage on the Home in violation of Section 28 below.
(10) Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the
following:
(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
1010\13\495354.3 14
4663
(4) Exercise the City Option upon Default as described in Section 21 below.
19. NOTICE AND CURE
Upon Default or a violation of any of the provisions of this Agreement, the City may give
written notice to the Owner specifying the nature of the violation. If the violation is not
corrected to the satisfaction of the City within a reasonable period of time, not longer than thirty
(30) days after the date the notice is mailed, or within such further time as the City determines is
necessary to correct the violation, or if the Owner is in default under any other mortgage loan on
the Home, the City may declare a default under this Agreement.
The City shall notify First Lender at the address provided by the First Lender to the City
in the manner set forth in Section 33 of this Agreement, if the City has declared a default under
this Agreement or under the City Note or City Deed of Trust.
20. NOTICE TO CITY OF DEFAULT
A request for notice of default and any notice of sale under any deed of trust or mortgage
with power of sale encumbering the Home shall be recorded by the City in the Office of the
Recorder of the County of San Diego for the benefit of the City. The City may declare a default
under this Agreement upon receipt of any notice given to the City pursuant to Civil Code Section
2924b, and may exercise its rights as provide in Sections 18 and 21.
In the event of default and foreclosure under the First Lender Loan or any other mortgage
loan on the Home, the City shall have the same right as the Owner to cure defaults and redeem
the Home prior to the foreclosure sale. Nothing herein shall be construed as creating any
obligation of the City to cure any such default, nor shall this right to cure and redeem operate to
extend any time limitations in the default provisions of the underlying deed of trust or mortgage.
If the City failed to file the request for notice of default, the City's right to purchase the
Home shall commence from the date a notice of default is given by the City to the Owner.
21. PURCHASE OPTION UPON DEFAULT
A. Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Option provided in Section 12, the Owner hereby grants to the
City or the City Designated Purchaser the option to purchase the Home effective upon the
declaration of a default by the City pursuant to Section 18 and Section 19 above, and subject to
notice and cure rights set forth in Section 19. Said option to purchase is given in consideration
of the economic benefits received by the Owner resulting from ownership of the Home made
possible by the financial assistance of the City in the purchase of the Home.
B. Exercise of Option. The option to purchase may be exercised upon a default
under this Agreement or upon default under any promissory note, deed of trust or any other lien,
1010\13\495354.3 15
4664
including a judgment lien, recorded against the Home. The City shall have thirty (30) days after
a default is declared to notify the Owner and the First Lender of its decision to exercise its option
to purchase. Not later than ninety (90) days after the notice is given by the City to the Owner of
the City's intent to exercise its option, the City shall purchase the Home for the Maximum
Restricted Resale Price set forth in Section 14. The City may assign its rights to purchase the
Home under this section to a City Designated Purchaser.
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.
C. Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from
all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees
that the City may incur as a direct or indirect consequence of: (1) Owner's default, performance,
or failure to perform any obligations as and when required by this Agreement or the Deed of
Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and
correct.
23. RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Home through a deed in lieu of foreclosure, a trustee's
deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent
that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited
to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder
of such excess proceeds (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 Home under this Agreement.
1010\13\495354.3
4665
24. RESTRICTION ON INSURANCE PROCEEDS
If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the
Home, the Owner shall pay the City the portion of any insurance proceeds received by the
Owner for such destruction or damage which is in excess of the Maximum Restricted Resale
Price calculated pursuant to Section 14 above.
25. TERM OF AGREEMENT
All the provisions of this Agreement, including the benefits and burdens, run with the
land and the Home and this Agreement shall bind, and the benefit hereof shall inure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors until the earlier of (i) forty-five (45) years from the date of
recordation of this Agreement or (ii) the date of Transfer of the 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
Except for the Habitat Declaration, 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. In the event of any conflict between the terms or requirements of this Agreement
and the Habitat Declaration, the Owner shall comply with the more restrictive requirement.
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 Home or any transferee thereafter; provided, however, if the holder of
such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in
lieu of foreclosure, this Agreement shall automatically terminate upon such acquisition of title,
provided that (i) the City has been given written notice of default under such First Lender Deed
of Trust and (ii) the City shall not have cured or commenced to cure the default within such
thirty (30)-day period and given its firm commitment to complete the cure in the form and
1010\13\495354.3 17
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 Home, nor shall the
Owner or any person claiming under or through the Owner establish or permit any such practice
or practices of discrimination or segregation with reference to the use, occupancy, or transfer of
the Home. The foregoing covenant shall run with the land.
30. PJGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement
shall not diminish or affect the rights of the California Housing Finance Agency ("CHFA"), the
United States Department of Housing and Urban Development ("HUD"), the Federal National
Mortgage Association ("FNMA"), or the Veterans Administration ("VA") under the First Lender
Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the Home
in compliance with Section 28 above.
1010\13\495354.3 Jg
4667
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief, or (ii) the Owner is
undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment
(TMAP) program.
32. INVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
3 3. NOTICES
All notices required herein shall be sent by certified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on he delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or the date
Notice was returned as undeliverable as follows:
To the Owner:
At the address of the Home.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Homebuyer Program
To the First Lender:
San Diego Habitat for Humanity
10222 San Diego Mission Road
San Diego, CA 92108-2135
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
1010\13\495354.3 19
4S68
34. INTERPRETATION OF AGREEMENT
The terms of this Agreement shall be interpreted so as to avoid speculation on the Home
and to insure to the extent possible that the mortgage payments remain affordable to low and
moderate income households.
35. CONTROLLING LAW
The terms of this Agreement shall be interpreted under the laws of the State of California.
36. RIGHTS OF THIRD PARTIES TO ENFORCE COVENANTS
Notwithstanding any other provision of law, all covenants and restrictions contained
herein which implement Health and Safety Code Sections 33334.3 and/or 33413(b)(4), or
successor provisions, shall run with the land and shall by enforceable by the Agency, the City,
and any of the parties listed in Health and Safety Code Section 33334.3(f)(7), so long as such
provision or successor provision remains in effect.
37. LISTING OF PROPERTY IN DATABASE
Owner hereby acknowledges and agrees that Health and Safety Code Section 33418(c)
requires that the Property be listed in a database that shall be made available to the public on the
internet and which will include the street address, assessor's parcel number, and other
information about the Property.
38.EXHIBITS
Any exhibits referred to in this Agreement are incorporated in this Agreement by such
reference.
1010\13\495354.3 20
4669
IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date
first written above.
CITY:
City of Carlsbad, a municipal corporation
Byi,
Name: *—i
Title: ^-/ / y
OWNER:
r>
Print Name
Signature
Print Name
Signature
1010\13\495354.3 21
4670
STATE OF CALIFORNIA
COUNTY OF
On_
Notary Public, personally appeared
_, 20/0 before me,
Roberta L. Porter
Notary Public
, 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 certifyund^-PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and
(Seal)
COMM. #1905324
NOTARY PUBLIC • CALIFORNIA
, SAN DIEGO COUNTY 1
Commission Expires Oet 22,2014 |IWVWVWWVtAAMMVWWMWMMVyWMn
STATE OF CALIFORNIA )\
COUNTY OF ^Gjr^Ui C^J )
, 20/0 before me,
Notary Public, personally appeared /-/iSa.
_ _ , who
proved to me on the basis of satisfactory evidence to be the personfs^whose nameteCTsfefe-
subscribed to the within instrument and acknowledged to me that lra(§he/5tkey-executed the same
«i'authorized capacity(ies)rand that by ht^Ke^tliew-signature^on the instrument
the persojjfS'Cor 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.
Signature
SHEILA RENAE COBIAN
Commission # 1848471
Notary Public • California
San Oitgo Countyan tgo ouny -
My Comm. ExpjrM May 10. 2018 1
A-l
1010\13\495354.3
4671
EXHIBIT A
Legal Description of Property (Home)
A-2
1010\13\495354.3
4672
EXHIBIT "A"
Legal Description of Property
Real property situated in the City of Carlsbad, County of San Diego, State of California, described as
follows:
Condominium No. 2 as shown upon the ROOSEVELT GARDEN CONDOMINIUM PLAN, recorded June
11, 2010, as Document No. 2010-0293333, in the Office of the County Recorder of San Diego County,
California ("Condominium Plan"), which is composed of the following portions of Lot 1 of CITY OF
CARLSBAD TRACT NO. 06-18 ROOSEVELT GARDEN CONDOMINIUMS, the City of Carlsbad, County
of San Diego, State of California, according to Map thereof No. 15635, filed with the Office of the County
Recorder of San Diego County, California, on October 29, 2007 ("Lot 1"), and the following easements:
PARCEL 1 (Living Unit):
The Living Unit with the same number as the Condominium described above.
PARCEL 2 (Common Area):
An appurtenant undivided fractional interest as tenant in common in and to the Common Area in
the Phase in which the Living Unit described in PARCEL 1 above is located equal to the
reciprocal of the number of Living Units within that Phase; the Common Area is shown and
described on the Condominium Plan.
PARCEL 3 (Easement Over Association Property):
Non-exclusive appurtenant easements in and to the Association Property now or hereafter owned
by Association. "Association Property" is defined in the Condominium Plan and in the
Declaration.
PARCEL 4 (Exclusive Use Area):
The exclusive right to use any Exclusive Use Area shown on the Condominium Plan as being
appurtenant to the Living Unit described in PARCEL 1 above.
PARCEL 5 (Access Over Drives):
A non-exclusive appurtenant easement for ingress and egress over the "Drives" within Lot 1,
pursuant and subject to the terms and provisions of the Access Declaration described in the Deed
to which this Exhibit is attached.
PARCEL 6 (Right to Use Parking Space):
The right to use 2 Assigned Parking Spaces pursuant to Section 17.1 of the Declaration.
RESERVING FROM ALL PARCELS all exceptions and reservations of record, including, but not limited
to, all rights and easements set forth in (i) the Declaration of Restrictions for Roosevelt Garden
Condominiums recorded June 11, 2010 as Document No. 2010-0293334 in the Office of the County
Recorder of San Diego County, California ("Declaration") and any presently existing or future
amendments to such Declaration; and (ii) the Deed and Declaration Establishing Access Easement
Rights recorded June 11, 2010 as Document No. 2010-0293335 in the Office of the County Recorder of
San Diego County, California ("Access Declaration") and any presently existing or future amendments to
such Access Declaration.
4673
EXHIBIT B
Form of Owner Occupancy Certification
To: City of Carlsbad ("City")
From:
Address of Home:
Date:
[name of owner(s)] ("Owner(s)")
("Property")
By signature below, I [insert name or names of Owner] hereby
certify to the City under penalty of perjury that I/we occupy the home located at
[insert address] (the "Home") as my/our
principal place of residence and that I/we have occupied the Home for ( )
[insert number] months of the calendar year [insert previous calendar year].
Attached to this letter is a copy of [insert utility bill or driver's license] showing
my place of residence.
This Owner Occupancy Certification is signed on
perjury.
, 20 , under penalty of
Due Date:of each calendar year.
By:_
By:.
Owner [type name]
Owner [type name]
Attach copy of utility bill or driver's license showing address of Home.
B-l
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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 Home: ("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 [insert date] under penalty of perjury.
By:.
Owner
By:.
Owner
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EXHIBIT D
FORM OF CITY RESPONSE NOTICE
To: ("Owner")
From: The City of Carlsbad (the "City")
Address of Home: ("Home")
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 Home or assign its option the Home 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 Home (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 Home.
If a Designated Purchaser purchases your Home, that Designated purchaser may assume the
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amount you owe on the Homebuyer Loan. If the City purchases your home 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 Home 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 rice for which you may sell your Home (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 home 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 $_
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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 Home, 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 home 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 Home between the 16th year of the Resale Agreement and the end of the
Term. At this point you may proceed to sell your Home to a third party for a market price.
Upon sale of the Home, 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:
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:
Date:
I, [insert name] hereby acknowledge that I received the City
Response Notice (as described in Section 10 of the Resale Agreement on [insert
date].
By:
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EXHIBIT F
Form of Owner Request for City Subordination
to Refinanced First Lender Loan
To: City of Carlsbad ("City")
From: ("Owner")
Property Address: ("Property")
Date:
The Owner hereby requests the City to approve the Owner's refinance of the existing first
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 Request is
executed under penalty of perjury on [insert date].
By:
Owner
By:
Owner
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