HomeMy WebLinkAboutRutherford, Theresa Lynn; 2005-05-17;NOTICE TO BORROWER:
THIS NOTE IS NOT ASSUMABLE
PROMISSORY NOTE
Secured by Deed of Trust
191,400.00 Carlsbad, California
17 .200
FOR VALUE RECEIVED. the undersigned '
THERESA LYNN RUTHERFORD,
. (the Borrowei)
promises to pay to the City of Carlsbad, a municipal corporation (the "City11), or order, at the
Housing and Redevelopment Department, 2965 Roosevelt Street, Suite B, Carlsbad, California
92008-2389, or such other place as the City may designate in writing, the principal sum of
ONE HUNDRED NINETY ONE THOUSAND FOUR HUNDRED AND 00/100 Dollars
(£191,400.00,, plug Contingent Interest calculated pursuant to Section 3 below, phis any
amounts due the City as Excess Sales Proceeds pursuant to the Resale Restriction Agreement and
Option to Purchase (the "Resale Agreement") by and between Borrower and City of even date
herewith.
1. Purpose of Loan. Borrower is purchasing the Residence located at
r.ABT.SBA CA 92009 _ .in the
City of Carlsbad. This Note evidences a loan made by
GREYSTONE HOMES INC. (the "Seller") to the
Borrower, utilizing subsidy funds provided by the City and the Seller, and assigned by the Seller
to the City (the "City/Seller Loan"). The City/Seller Loan is in the amount determined by the
City to be necessary for the Borrower to afford to purchase the Residence making a reasonable
downpayraent and using conventional first mortgage financing for the balance of the purchase
price not financed by the City/Seller Loan. The Seller made the City/Seller Loan to the
Borrower and assigned the City/Seller Loan to the City in fulfillment of certain inclusionary
housing obligations pursuant to an Affordable Housing Agreement between GREYSTONE
HOMES, INC., a Delaware corporation, LENNAR BRESSI RANCH VENTURE, LLC, a
California limited liability company, BARRATT AMERICAN, INC., a California corporation
and the City dated February 20, 2003. Because me purchase price was set at an affordable price,
the Borrower is required and has agreed to execute a Resale Agreement which during the first
fifteen (IS) years of Borrower's Ownership of the Residence, restricts the price of the Property
upon resale and which requires the Borrower to pay any Excess Sales Proceeds (as defined
below) at resale to the City. This Note evidences both (a) the obligation of Borrower to repay
the City/Seller Loan, and (b) the obligation of Borrower to pay any Excess Sales Proceeds to the
City pursuant to die Resale Agreement
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2. Definitions. The terms set forth in this section shall have the following meanings
in this Note.
a. "Appreciation Amount" shall mean the amount calculated by subtracting
the total original purchase price of the Residence paid by the Borrower, which wasHUNDRED SEVENTY FIVE THOUSAHD AMP 00/100 Dollars
rnpn.no ), from one of the following amounts, as applicable: (i) in the event of a
sale of the Residence, the amount received by the Borrower as the sale price of the Residence, as
certified by the Borrower pursuant to Section 15d or Section 17 of the Resale Agreement below;
or (ii) in the event of a prepayment of this Note, a Transfer other than sale of the Residence, or in
the event of a default, the Fair Market Value of the Residence; or (iii) in the event a creditor
acquires title to the Residence through a deed in lieu of foreclosure, a trustee's deed upon sale, or
otherwise, the amount paid for the Residence at a creditor's sale of the Residence; or (iv) in the
event of payment at the expiration of the thirty (30) year tern the Fair Market Value of the
Residence.
b. "Contingent Interest" shall mean the percentage of the Appreciation
Amount set out in Section 4.
c. "Excess Sales Proceeds'! shall have the meaning set forth in Section 16 of
the Resale Agreement
d. "Fair Market Value" shall be determined by a real estate appraisal made
by an independent residential appraiser designated by the City. If possible, the appraisal shall be
based upon the sales prices of comparable properties sold in the market area during the preceding
three (3)-monm period. The cost of the appraisal shall be paid by the Borrower. Nothing in this
subparagraph shall preclude the Borrower and the City from establishing the Fair Market Value
of die Residence by mutual agreement in lieu of ah appraisal.
e. "First Mortgage" shall mean the promissory note and deed of trust
evidencing and securing the first mortgage loan for the Residence.
f. "Maximum Restricted Resale Price" shall have the same meaning as set
forth in Section 14 of the Resale Agreement
g. "Resale Agreement" shall mean the Resale Restriction Agreement and
Option to Purchase executed by the Borrower and the City in connection with the City/Seller
Loan.
h. "Residence" shall mean the housing unhand land encumbered by the deed
of trust executed in connection with this Note.
i. "Transfer" shall mean any sale, assignment or transfer, voluntary or
involuntary, of any interest in the Residence, including, but not limited to, a fee simple interest, a
joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or an interest
evidenced by a land contract by which possession of the Residence is transferred and the
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Borrower retains title. Any Transfer without satisfaction of the provisions of this Note is
prohibited. A transfer (i) to an existing spouse who is also an obligor under the Note; (ii) by a
Borrower to a spouse where the spouse becomes the co-owner of the Residence; (iii) between
spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse or child of the
Borrower by devise or inheritance following the death of the Borrower; (v) by the Borrower into
an inter vivos revocable trust in which the Borrower is the trustor; (vi) by deed of trust or
imposition of a lien subordinate to the Deed of Trust; or (vii) by refinance of the First Mortgage
meeting the requirements of Section II, shall not be considered a Transfer for the purposes of
this Note; provided, however, that the Borrower shall continue to occupy the Residence 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 occupy the residence as his or her principal place
of residence and affirmatively assume the Borrower's obligations under this Note and the City
Deed of Trust, and the Resale Agreement) and the Borrower shall provide written notice of such
transfer to the City pursuant to Section 8 of the Resale Agreement.
3. Security. This Note is secured by a second deed of trust dated the same date as
this Note (the "Deed of Trust").
4- Contingent Interest. The Borrower shall pay contingent interest equal to
, EIGHT _ percent ( ,38 %) of the Appreciation Amount (the "Contingent
Interest"). No interest other than Contingent Interest shall be due hereunder. The Contingent
Interest shall be paid to the City at the time set forth in Section 6 below. Borrower
acknowledges that the Contingent Interest percentage amount is equal to the City/Seller Loan
principal amount as a percentage of the total purchase price of the Residence paid by the
Borrower at the time of purchase, multiplied by seventy-five one hundredths (.75). Borrower
acknowledges that this calculation of the percentage of the Appreciation Amount due to the City
as Contingent Interest includes a twenty-five percent (25%) discount to Borrower to account for
any capital improvements Borrower may make to the Residence.
5. Term. The Term of this Note shall mean the period commencing on the date of
this Note and expiring on the date thirty (30) years thereafter.
6. Repayment. The total amount of the principal and any Contingent Interest owed
under this Note (including Excess Sales Proceeds due to the City pursuant to the Resale
Agreement) shall immediately become due and payable (i) in the event of a default by the
Borrower under this Note, the Resale Agreement, the Deed of Trust, or the First Mortgage, (if)
on the date Transfer is made whether voluntarily, involuntarily, or by operation of law and
whether by deed, contract of sale, gift, devise, bequest or otherwise, (iii) in the event Borrower
ceases to occupy the Residence as his or her principal place of residence; or (iv) at the end of the
Term of this Note as described above in Section 5. Failure to declare such amounts due shall not
constitute a waiver on the part of the City to declare them due in the event of a subsequent
Transfer.
7. Late Payment Fees. If any payment due hereunder is not paid within five (5) days
from the date such becomes due, Borrower shall pay a reasonable late or collection charge equal
to five percent (5%) of the amount so unpaid. The City and Borrower agree that the actual
3/29/05
damages and costs sustained by the City due to die failure to make timely payments would be
extremely difficult to measure and that the charges specified in this paragraph represent a
reasonable estimate by Borrower and the City of a fair average compensation for such damages
and costs. Such charges shall be paid by Borrower without prejudice to the right of the City to
collect any other amounts provided to be paid under this Note, the Resale Agreement or the Deed
of Trust or, with respect to late payments, to declare a default.
8. Prepayments. The Borrower may prepay all or part of the balance due under this
Note including principal and Contingent Interest In the event the entire amount of principal due
under this Note is prepaid, all Contingent Interest, calculated as of the date of prepayment, shall
also be due at the time of prepayment In the event of partial prepayment, the amount of
Contingent Interest due upon prepayment shall be determined at the time of any partial
prepayment based on the Fair Market Value of the Property. Partial prepayments shall be
allocated between payment of Contingent Interest and payment of principal in the same
proportion as the ratio of each to the total amount due (principal and interest) at the time of
prepayment. Following a prepayment, the percentage of Contingent Interest due the City shall
be recalculated to reflect the paydown in principal owed the City, The recalculated Contingent
Interest shall equal the outstanding principal amount of the Note divided by the original purchase
price of the Property paid by the Borrower. Notwithstanding any prepayment of amounts due
under this Note, the Resale Agreement shall continue in full force and effect for the period of
time set forth in Section 25 of the Resale Agreement
9. Asyupptfon of Note. The Borrower acknowledges mat this Note is given in
connection with the purchase of property (the "Residence") as part of a program of the City to
assist hi the purchase of homes by lower income persons. Consequently, mis Note is
assumableonly by Eligible Purchasers (as defined in Section 1SB of the Resale Agreement) of
the Residence. 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 thirty (30) year terms in forms approved by the City. -
10. Maintenance: Taxes; Insurance. Borrower shall maintain the Residence in good
repair and in a neat, clean and orderly condition. Borrower shall promptly pay all property taxes
due on the Residence prior to any delinquency and shall comply with the insurance requirements
set forth in the Deed of Trust and Resale Agreement.
11. Refinance of First Mortgage Loan. The outstanding principal and interest on this
Note shall not be due upon prepayment and refinance of the First Mortgage, and the Resale
Agreement and Deed of Trust shall be subordinated to the refinanced 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 phis reasonable costs of
refinance, and (iii) the refinance does not result in higher monthly payments on the Fast
Mortgage Loan than were due prior to me refinance.
12. Default
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a. The Borrower shall be in default under this Note if he or she is in default
under the First Mortgage following the expiration of First Mortgage cure periods, or if, after the
notice and cure period provided by the City to the Borrower pursuant to the notice and cure
provisions of the Deed of Trust, the Borrower (i) fails to pay any money when due under this
Note; (ii) breaches any representation or covenant made in this Note or Resale Agreement in any
material respect; or (iii) breaches any provision of the Deed of Trust
b. Upon the Borrower's breach of any covenant or agreement of the
Borrower in this Note, the Resale Agreement or the Deed of Trust, including, but not limited to,
the covenants to pay, when due, any sums secured by the Deed of Trust, the City, prior to
acceleration, will send, in the manner set forth in Section 17, 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 man thirty (30) days from the date the notice is effective, by which such breach, if curable, is
to be cured and (4) if the breach is curable, mat failure to cure such breach on or before the date
specified in the notice may result in acceleration of the sums secured by the Deed of Trust and
foreclosure by the City. 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.
13. Acceleration. Upon the occurrence of a default under this Note, the Resale
Agreement, the Deed of Trust, or the First Mortgage, the City shall have the right to declare the
full amount of the principal along with any Contingent Interest under this Note immediately due
and payable. Any failure by the City to pursue its legal and equitable remedies upon default
shall not constitute a waiver of the City's right to declare a default and exercise all of its rights
under mis Note, the Resale Agreement, and the Deed of Trust Nor shall acceptance by the City
of any payment provided for herein constitute a waiver of the City's right to require prompt
payment of any remaining principal and interest owed.
14. No Offset. The Borrower hereby waives any rights of offset it now has or may
later have against the City, its successors and assigns, and agrees to make the payments called for
in this Note in accordance with the terms of this Note.
15. Waiver. Attorney Fees and Costs. The Borrower and any endorsers or guarantors
of mis Note, for themselves, their heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest,
dishonor and non-payment of mis Note, and expressly waive any rights to be released by reason
of any extension of time or change in terms of payment, or change, alteration or release of any
security given for the payments hereof, and expressly waive the right to plead any and all statutes
of limitations as a defense to any demand on mis Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incurred, including reasonable attorney
fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs
and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys'
fees in such action.
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16. No Waiver bv the City. No waiver of any breach, default or failure of condition
under the terms of this Note shall be implied from any failure of the City to take action with
respect to such breach, default or failure or from any previous waiver of any similar or unrelated
breach, default or failure.
17. Notices. All notices required in this Note shall be sent by certified mail, return
receipt requested, or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, die date delivery was refused, or the date die notice was
returned as undeliverable as follows:
To the Borrower.
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
Attention: Housing and Redevelopment Director
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
18. Joint and Several Obligations. This Note is the joint and several obligation of all
makers, sureties, guarantors and endorsers, and shall be binding upon them and their successors
and assigns.
19. NflnilHfrilitv for Negligence. Loss, or Pflff^fii?- Borrower acknowledges,
understands and agrees that die relationship between Borrower and die City is solely that of
borrower and lender, and that the City does not undertake or assume any responsibility for or
duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of
die quality, adequacy or suitability of die Residence or any otiier matter. The City owes no duty
of care to protect Borrower against negligent, faulty, inadequate or defective building or
construction or any condition of die Residence and Borrower agrees diat neitiier Borrower, or
Borrower's heirs, successors, or assigns shall ever claim, have or assert any right or action against
die City for any loss, damage or odier matter arising out of or resulting from any condition of die
Residence and will hold die City harmless from any liability, toss or damage for tiiese tilings.
20. Indemnity. Borrower agrees to defend, indemnify, and hold die City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys
fees tint die City may incur as a direct or indirect consequence oft
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a. the making of the loan to Borrower;
b. Borrower's failure to perform any obligations as and when required by the
Note, die Resale Agreement or die Deed of Trust; of
c. the failure at any time of any of Borrower's representations to the Seller or
the City to be true and correct.
21. Termination of Restrictions. Any legal restrictions on conveyance of the
Residence (as defined in 24 CFR 203.41(aX3)) included in this Note shall terminate upon
transfer of the Residence by foreclosure, deed in lien of foreclosure, or assignment to the
Secretary of the United States Department of Housing and Urban Development.
22. ffont^flHiqff r^w. This Note shall be construed in accordance with and be
governed by die laws of die State of California.
23. ^B^igmnqnt by Chv. The City may assign its right to receive the proceeds under
this Note to any person and upon notice to die Borrower by die City all payments shall be made
to die assignee.
24. Invalid Provisions. If any one or more of die provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from die remaining provisions contained in
dtis Note, and diis Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained in diis Note.
25. Entire Agreement This Note (along with die Resale Agreement and Deed of
Trust) sets form die entire understanding and agreement of die City and die Borrower and any
amendment, alteration or interpretation of diis Note must be in writing signed by both die City
and die Borrower.
3129/05
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On
appeared.
200^before . personally
, porsuually '
kuuwn tu me (ui proved to me on the basis of satisfactory evidence) to be the person(s} whose
namc(8) is/am- subscribed to the within instrument and acknowledged to me that J»e/she/«h«jc
executed the same in .his/her/their authorized capacity^**), and that by tta/her/tbeip signature's)
on the instrument the person^-or the entity upon behalf of which the person^ acted, executed
the instrument
seal.
DAVID T. HUMMERICH
Commission # 1397103
Notary Public - California f
San Diego County f
My Comm. Expires Feb 27,2007f
• mmmmmmmwl
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On
appeared.
200_, before me,personally
_, personally
known to roe (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signatures)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument
WITNESS my hand and official seal.
1010M5M72081.3
EXHIBIT "A"
(LEGAL DESCRIPTION)
A CONDOMINIUM UNIT COMPOSED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA OF
PHASE 2 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM PLAN (THE
"CONDOMINIUM PLAN") RECORDED FEBRUARY 11, 2005, AS DOCUMENT NO. 2005-0117224, IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, BEING A PORTION OF LOT
1 OF CARLSBAD TRACT MAP CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST
HEREBY CONVEYED IS THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE
CONDOMINIUM PLAN AS BEING WITHIN PHASE 1 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
ALSO EXCEPTING THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL
PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE ABOVE
DESCRIBED LAND ("LAND"), TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING SAME FROM SAID LAND OR
ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THE LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER THE RIGHT TO DRILL, MINE,
STORE, EXPLORE OR OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND, AS RESERVED BY BRESSI GARDENLANE, LLC, BY DEED RECORDED JANUARY 25, 2005,
AS DOCUMENT NO. 2005-0061440, OFFICIAL RECORDS
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 100, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS:
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLAN AS
BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE ASSOCIATION
PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR MULBERRY AT BRESSI
RANCH RECORDED ON MARCH 10, 2005, AS DOCUMENT NO. 2005-0197712, OFFICIAL RECORDS),
EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT HEREBY RESERVED, WHICH IS APPURTENANT
TO THE LIVING UNIT DESCRIBED ABOVE, IS FOR ACCESS AND USE OF THE ASSOCIATION PROPERTY,
SUBJECT TO THE PROVISIONS OF THE DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES
AND REGULATIONS OF THE MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A
CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION.
rtECORDING REQUESTED BY
NORTH AMERICAN TITLE CO.
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Cleric's Office
Attn: City Cleric 4
1200 Cariibad Village Drive
Carlsbad. CaBfomia 92008
DQC# 2005-0450725
MAY 21, 2005 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
GREGORY J. SMITH, COUNTY RECORDER
FEES: 000
PAGES: 12 DA: 1
(Space above for Recorder's Use)
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
AND SECUMTY AGREJgMENT
N
this
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
17THrfavof MAY p 200 5r among THERESA LYNN RUTHERFORD,
AM UNMARRIED
day ofWOMAN
("Borrower")
("Tnistee"),as trustor, and. _____a-Hk-________
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
E7rf>ft>4t A (the "Property"). 624? SHAMROCK PLACE, CARLSBAD, CA 92009
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
me 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 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
1Z/1W2003
36845
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 me "Security";
To have and to hold the Security together with acquittances to die 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 NINETY ONE THOUSAND FOUR HUNDRED & 00/100 .Dollars
(S.191,400, oq executed by the Borrower to die 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 CFTY COVENANT AND AGREE AS FOLLOWS:
Section 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, mat 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
or its successors and assigns (the "First Lender"), dated
_, 200_, executed by the Borrower in favor of First Lender, and
recorded in the County of San Diego on *** , 200_, and assigned Recorder's Serial
No. *** (the "First Lender Deed of Trust"), securing a promissory note executed by me
Borrower in favor of the First Lender ("First Lender Note"), to assist in the purchase of the
Property; (b) the Resale Agreement; and (c) the declarations, easements, restrictions and other
exceptions to coverage listed in any title insurance policy insuring the City's interest in the
Security (the "Permitted Title Exceptions). The Borrower agrees to warrant and defend
generally the title to the Security against all claims and demands other man the Permitted Title
Exceptions. As used in this Deed of Trust, the term "First Lender" shall include all successors
and assigns of the First Lender.
Section 2. Repayment of {.nan The Borrower will promptly repay, when due, the
principal, interest and other sums required by the Note and Resale Agreement, including all
principal and interest on the City/Seller Loan (as defined in the Note) and the Excess Sales
*** RECORDED CONCURRENTLY HEREWITH
•5 t2/1«2003
36846
Proceeds due under the Resale Agreement. The Note contains the following provisions
concerning repayment of die loan under certain conditions:
Section 3. Assumption of Note. The Borrower acknowledges that this Note is given in
connection with the purchase of property (the "Residence1*) as part of a program of the City to
assist in the purchase of homes by lower income persons. Consequently, this Note is assumable
only by Eligible Purchasers (as defined in Section 1SB of the Resale Agreement) of the
Residence. 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 prinictpal and Contingent
Interest owed by Borrower, a new deed of trust and a new resale restriction agreement with new
thirty (30) year terms in forms approved by the City.
Section 4. First Lender Loan. The Borrower will observe and perform ail of the
covenants and agreements of the First Lender Note, Fust Lender Deed of Trust, and related First
Lender loan documents.
Section 5.. Resale Agreement The Borrower will observe and perform all of the
covenants and agreements of the Resale Agreement.
Section 6.. Charges: Liens. The Borrower will pay all taxes, assessments and other
charges, fines and impositions attributable to the Security which may attain a priority over this
Deed of Trust, by the Borrower making any payment, when due, directly to the payee thereof.
The Borrower will promptly furnish to the City all notices of amounts due under this paragraph,
and in the event the Borrower makes payment directly, the Borrower will promptly discharge
any lien which has priority over this Deed of Trust; provided, that the Borrower will not be
required to discharge the lien of the First Lender Deed of Trust or any other lien described in mis
paragraph so long as the Borrower will agree in writing to the payment of the obligation secured
by such lien hi a manner acceptable to the City, or will, in good faith, contest such hen 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.
Section 7. HfjfflFIW The Borrower will keep the Security insured with a standard
fire and extended coverage insurance policy in at least an amount equal to the replacement cost
of the Security, but in no event less man the amount necessary to prevent the Borrower from
becoming a co-insurer under the terms of the policy.
The insurance carrier providing mis 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, mat such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal
Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of
Housing and Urban Development, the United States Department of Veterans Affairs, or
successors thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and
will include a standard mortgagee clause with standard lender's endorsement in favor of the
holder of me First Lender Note and the City as their interests may appear and in a form
12rt«20Q3
36847
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, (he 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 Note and all sums secured by mis 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 mem 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.
Section 8. Preservation and Maintenance of Security. The Borrower will keep the
Security in good repair and will not commit waste or permit impairment or deterioration of the
Security. If mere 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.
Section 9. Protection of the City's Security. If the Borrower fails to perform the
covenants and agreements contained in mis Deed of Trust, the Resale Agreement, the First
Lender Note, the First Lender Deed of Trust, or if any action or proceeding is commenced which
materially affects the City's interest in the Security, including, but not limited to, default under
the First Lender Deed of Trust, the First Lender Note or any other deed of trust encumbering the
Property, eminent domain, insolvency, code enforcement, or arrangements or proceedings
involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower,
may make such appearances, disburse such sums and take such action as it determines necessary
to protect the City's interest, including but not limited to, disbursement of reasonable attorney's
fees and entry upon the Security to make repairs.
121O2003
36848
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.
Section 10. 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.
Section 11. Forbearance bv 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
Section 12. flfliW^ft'Tf8 SllfrffffMftfff- 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, mat
any removal or other remediation of any Hazardous Substance affecting the Properly is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
Section 13. Remedies Cymyfotjvfe All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under mis Deed of Trust or any other
document, or afforded by law or equity, and may be exercised concurrently, independently or
successively.
12M8/20Q3
36849
Section 14. 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 die provisions of this Deed of Trust.
Section IS. Joint and Several Liability. All covenants and agreements of the Borrower
shall be joint and several.
Section 16. 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 die
delivery receipt as the date of delivery, die date delivery was refused, or die date die notice was
returned as undetiverable as follows:
To the Owner
At die address of die Residence.
To die 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 die change
in address to die odier parties in accordance wim diis section.
Section 17.ControUmg taw. This Deed of Trust shall be construed in accordance wim
and be governed by die laws of die State of California.
Section ISJnvaHd Pirov»3k>ns, If any one or more of die provisions contained in
Deed of Trust, Resale Agreement or die Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, tiien such provision or provisions shall be deemed severable from
die remaining provisions, and tiiis Deed of Trust, die Resale Agreement and die Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in dus
Deed of Trust, Resale Agreement or die Note.
Section 19.Captions. The captions and headings in diis Deed of Trust are for
convenience only and are not to be used to interpret or define die provisions hereof.
1916/2003
36850
Section 20. NfltlliiftfoUtv for Negligence. Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of an
Borrower and the administrators of City inclusionary housing program, and that the City does
not undertake or assume any responsibility for or duty to Borrower to select, review, inspect,
supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the
Security or any other matter. The City owes no duty of care to protect Borrower against
negligent, faulty, inadequate or defective building or construction or any condition of the
Security and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns
shall ever claim, have or assert any right or action against the City for any loss, damage or other
matter arising out of or resulting from any condition of the Security and will hold City harmless
from any liability, loss or damage for these things.
Section 21. Indemnity. Borrower agrees to defend, indemnify, and hold the City
harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable
attorneys fees that the City may incur as a direct or indirect consequence of:
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
Section 22. 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, die covenants to pay, when due, any sums secured by this Deed of Trust, the City,
prior to acceleration, will send, in the manner set form in Section 14 of this Deed of Trust, notice
to the Borrower specifying: (1) the breach; (2) if the breach is curable, the action required to
cure such breach; (3) a date, not less than thirty (30) days from the date the notice is effective as
set forth in Section 14 of mis Deed of Trust, by which such breach, if curable, is to be cured; and
(4) if the breach is curable, mat failure to cute such breach on or before the date specified in the
notice may result in acceleration of the sums secured by mis Deed of Trust and sale of the
Security. Notice shall be effective as of the date shown on the delivery receipt as the date of
delivery, the date delivery was refused or the date the notice was returned as undeliverable. The
notice will also inform the Borrower of the Borrower's right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of default or any other defense of the
Borrower to acceleration and sale. If the breach is not curable or is not cured on or before the
date specified in the notice, the City, at the City's option, may: (a) declare all of the sums
secured by this Deed of Trust to be immediately due and payable without further demand and
may invoke the power of sale and any other remedies permitted by California law; (b) either in
person or by agent, with or without bringing any action or proceeding, or by a receiver appointed
by a court, and without regard to the adequacy of its security, enter upon the Security and take
possession thereof (or any part thereof) and of any of the Security, in its own name or in the
name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value
or marketability of the Security, or part thereof or interest therein, increase the income therefrom
or protect the security thereof. The entering upon and taking possession of the Security shall not
cure or waive any breach hereunder or invalidate any act done in response to such breach and,
12/16/2003
36851
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 die provisions for notice of sale found at California Civil Code Sections 2924, gt
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.
Section 23 .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 mis 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.
Section 24. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of
the sums secured by mis Deed of Trust, the Borrower will have the right to have any proceedings
begun by the City to enforce mis 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 mis Deed of Trust if: (a) the Borrower pays City all
sums, if any, which would be men due under mis Deed of Trust and no acceleration under the
Note has occurred; (b) me 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 mis 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, mis Deed of Trust and the obligations secured hereby will remain in full
force and effect as if no acceleration had occurred.
Section 25. Reconveyance. Upon payment of all sums secured by mis Deed of Trust,
the City will request the Trustee to reconvey the Security and will surrender this Deed of Trust
and the Note to the Trustee. The Trustee will reconvey the Security without warranty and
without charge to the person or persons legally entitled thereto. Such person or persons will pay
all costs of recordation, if any.
1218/2003
36852
Section 26. Substitute Trustee. The City, at the City's option, may from time to time
remove die Trustee and appoint a successor trustee to any trustee appointed hereunder. The
successor trustee will succeed to all the tide, power and duties conferred upon the Trustee herein
and by applicable law.
Section 27. Subordmation 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 die First Lender's
successor or assign, to exercise its remedies under die First Lender Deed of Trust in the event of
default under the First Lender Deed of Trust by die Borrower. Such remedies under the First
Lender Deed of Trust include die 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 die Secretary of die United
States Department of Housing and Urban Development (die "Secretary"), this Deed of Trust
shall be forever terminated and shall have no further effect as to die Property or any transferee .
diereafter; provided, however, if die holder of such First Lender Deed of Trust acquired tide to
die Property pursuant to a deed or assignment in lieu of foreclosure, or if die First Lender's Deed
of Trust is assigned to die Secretary, du's Deed of Trust shall automatically terminate upon such
acquisition of title or assignment to die Secretary provided tiiat (i) die City has been given
written notice of default under such First Lender Deed of Trust and (ii) die City shall not have
cured or commenced to cure die default witiiin such thirty (30)-day period and given its turn
commitment to complete die cure in the form and substance acceptable to die Fust Lender.
Borrower agrees to record any necessary documents to effect such termination, if applicable.
Section 28. Attorney's Fees. If any action or proceeding is brought to enforce this ,
Deed of Trust or any provision of tiiis Deed of Trust or die Note, die prevailing party shall be
entitled to its attorney's fees and dw cost of such action or proceeding.
IN WITNESS WHEREOF, the Borrower
first written above.
tilis Deed Of Trust as of die date
Borrower
12f16/2003
36853
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On _, 2(XQ_, before me,\o personally
_ ntimmnlly „
o (or proved to me on the basis of satisfactory evidence) to be the person^ whose
name{s) is/are subscribed to the within instrument and acknowledged to me that fee/she/thcy
executed the same in hie&er/thei* authorized capacity(ies), and that by-Ms/her/timr signature^
on the instrument the person(s) or the entity upon behalf of which the personfa) acted, executed
the instrument.
WITN:
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On
appeared.
before me,personally
_, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS my hand and official seal.
ORDER NO. 7304000-24 36854
EXHIBIT "A"
(LEGAL DESCRIPTION)
A CONDOMINIUM UNIT COMPOSED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON
AREA OF PHASE 2 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM
PLAN (THE "CONDOMINIUM PLAN") RECORDED FEBRUARY 11, 2005, AS DOCUMENT NO.
2005-0117224, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA, BEING A PORTION OF LOT 1 OF CARLSBAD TRACT MAP CT 03-03, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST HEREBY CONVEYED IS
THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN
AS BEING WITHIN PHASE 1 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
ALSO EXCEPTING THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE ABOVE DESCRIBED LAND ("LAND"), TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING
THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER
THAN THE LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT,
HOWEVER THE RIGHT TO DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH THE
SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED BY
BRESSI GARDENLANE, LLC, BY DEED RECORDED JANUARY 25, 2005, AS DOCUMENT NO.
2005-0061440, OFFICIAL RECORDS
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 100, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS:
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM
PLAN AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
Page 5
ORDER NO. 7304000-24
36855
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE
ASSOCIATION PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR
MULBERRY AT BRESSI RANCH RECORDED ON MARCH 10, 2005, AS DOCUMENT NO. 2005-
0197712, OFFICIAL RECORDS), EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT
HEREBY RESERVED, WHICH IS APPURTENANT TO THE LIVING UNIT DESCRIBED ABOVE, IS
FOR ACCESS AND USE OF THE ASSOCIATION PROPERTY, SUBJECT TO THE PROVISIONS OF
THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION
OF EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES AND REGULATIONS OF
THE MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A CALIFORNIA
NONPROFIT MUTUAL BENEFIT CORPORATION.
Page 6
RECORDINC'REQUESTED Bj.': North American Title Company
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerks's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
DOC# 2006-0306024
22202 MAY 01,2006 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G R E G 0 RY J. S MIT H. CO 0 N TY R E CO R D E R
FEES 0.00
PAGES: 3 DA: 1
2006-0306024
Space above this line for Recorder's use
REQUEST FOR NOTICE
Title Order No.
A.P.N.
Escrow No.
In accordance with Civil Code, section 2924b, request is hereby made that a copy of any Notice of Default and a copy of
any Notice of Sale under the Deed of Trust recorded as Instrument No. 3oD5 -£H/ S'CH^S on ^-^7-300^ .
in Book i]/ft Page hQ /A , of Official Records in the County Recorder's Office of San Diego
County, California, executed by THERESA LYNN RUTHERFORD. AN UNMARRIED WOMAN
as Trustor in which Universal American Mortgage Company of California is
named as Beneficiary, and Universal American Mortgage Company. LLC. as Trustee, be mailed to: City of Carlsbad.
City Clerk's Office. 1200 Carlsbad Village Drive. Carlsbad. California 92008
NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this
recorded request. If your address changes, a new request must be recorded.
RAYMOND) R. PATCHETT, CITY MANAGER
STATE OF CALIFORNIA JssCOUNTY OF
0
On
before me L
Personally appeared '(^CV^yYV''>fyC)' K
personally known to me (or-provod to ma OB the basin of ootisfactoryevkteBce) to be the personftf whose name{$ is/are-subscribed to thewithin
instrument and acknowledged to me that he/ahc/they executedthe same in his/befflbek authorized capacity(ie^£ and that byhis/hetdheir signature^
on the instrument the person(«J or the entityupon behalf of which the person&f acted, executed the instrument
WITNESSjny hand and official .seal.
PATRICIA L. CRESCENT! |
Commission * 1353062 |
Notary Public - California g
San Diago County f
My Comm, Expires May 24,200S 9
22203
EXHIBIT "A"
(LEGAL DESCRIPTION)
A CONDOMINIUM UNIT COMPOSED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA OF
PHASE 2 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM PLAN (THE
"CONDOMINIUM PLAN") RECORDED FEBRUARY 11, 2005, AS DOCUMENT NO. 2005-0117224, IN THE
OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, BEING A PORTION OF LOT
1 OF CARLSBAD TRACT MAP CT 03-03, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST
HEREBY CONVEYED IS THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE
CONDOMINIUM PLAN AS BEING WITHIN PHASE 1 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
ALSO EXCEPTING THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS
RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL
PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE ABOVE
DESCRIBED LAND ("LAND"), TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING,
EXPLORING AND OPERATING THEREFOR AND STORING IN AND REMOVING SAME FROM SAID LAND OR
ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE
FROM LANDS OTHER THAN THE LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR
BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR,
DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT, HOWEVER THE RIGHT TO DRILL, MINE,
STORE, EXPLORE OR OPERATE THROUGH THE SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE
OF THE LAND, AS RESERVED BY BRESSI GARDENLANE, LLC, BY DEED RECORDED JANUARY 25, 2005,
AS DOCUMENT NO. 2005-0061440, OFFICIAL RECORDS
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 100, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS:
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM PLAN AS
BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
22204
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE ASSOCIATION
PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION OF COVENANTS,
CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR MULBERRY AT BRESSI
RANCH RECORDED ON MARCH 10, 2005, AS DOCUMENT NO. 2005-0197712, OFFICIAL RECORDS),
EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT HEREBY RESERVED, WHICH IS APPURTENANT
TO THE LIVING UNIT DESCRIBED ABOVE, IS FOR ACCESS AND USE OF THE ASSOCIATION PROPERTY,
SUBJECT TO THE PROVISIONS OF THE DECLARATION OF COVENANTS, CONDITIONS AND
RESTRICTIONS AND RESERVATION OF EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES
AND REGULATIONS OF THE MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A
CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION.
RECORDING REQUESTED BV
NORTH AMERICAN TITLE CO.
RECORDING REQUESTED PURSUANT
TOGOVERNMENT .
CODE SECTION 27383
RECORDING REQUESTED BY:
CityofCarisbad
WHEN RECORDED MAIL TO:
CityofCarisbad
City aerie's Office
Attn: City Cleric
1200 Carlsbad Village Drive
IA 92008
DQCtf 2005-0450726
MAY 27, 2005 4:59 PM
OFFICIAL RE CORDS
SAN DIEGO CO UN TY RECORDER'S OFFICE
G fl E G 0 RY J S MIT H CO U N T Y R E CO R D E R
FEES, 0.00 WAYS i
OC: NA
PAGES: 30
2005-0450726
(Space above for Recorder's Use)
Oo
O
F
RESALE RESTRICTION AGREEMENT,
AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM - 200^.
Owner THERESA LYNN RUTHERFORD
6247 -SHAMROCK PLACE
Address of Home: CARLSBAD. CA 92009
This Resale Restriction Agreement and Option to Purchase (the "Agreement") is entered
into as of this i ?TH day of MAY 200s . by and between the City of
Carlsbad (the "City ") and THERESA LYNN RUTHERFORD. AN UNMARRIED WOMAN
.(the "Owner").
RECITALS
A. The City has developed a second mortgage program designed to assist qualified
lower income households purchase their homes located within the City of Carlsbad (the
"Homebuyer Program ").
B. In connection with the Homebuyer Program and in fulfillment of its inclusionary
obligation pursuant to an Affordable Housing Agreement (the "Affordable Housing Agreement")
between GREYSTONE HOMES, INC., a Delaware corporation, LENNAR BRESSI RANCH
VENTURE, LLC, a California limited liability company, and BARRATT AMERICAN INC., a
California corporation (the "Developer") and the City dated February 23, 2003, the Developer
made a loan (the "City/Seller Loan") in the amount of OME HDKDRED NINETY OHE _
Revised: 3/2/2005
36857
THOUSAND FOUR HUNDRED frffp QQ/10Q _ Dollars ($_ 191,400.00 _ )
to Owner to purchase a single-family dwelling located in Carlsbad, California on that certain real
property and more particularly described in Exhibit A (the "Home") and then assigned the
City/Seller Loan to die City. In consideration of the City/Seller Loan, the Owner agreed to enter
into the Agreement. As used herein, the term "Home "includes both the real property and all
improvements now or hereafter erected on the real property and all easements, rights,
appurtenances, and all fixtures now or hereafter attached to the real property.
C. The purchase price of the Home is THBEB mnmagp amreiyrv
THOUSAND AMP 00/100 _ Dollars (fe?5 . 000.00 ) (the "Purchase Price ").
D, The Owner is receiving a First Lender Loan in the amount of.
. Dollars ($ ) (the
"First Lender Loan") from _ (the
"First Lender "). The First Lender Loan is secured by a deed of trust dated.
200__, executed by me Owner in favor of First Lender and recorded in the County of San Diego
on ** _ ,
Lender Deed of Trust ").
on ** _ ,200j^ and assigned Recorder's Serial No. _ _ (the "First
E. The City/Seller Loan is evidenced by a promissory note in the amount of the Loan
(the "City Note"). This Agreenx^t and the City Note shall be secured by a deed of trust (the
"City Deed of Trust ") subordinate to the Hen of First Lender Deed of Trust.
F. 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.
G. This Agreement also meets the requirements of Heal thand Safety Code Sections
33334.2 and 33334.3 and permits the City to meet the affordable housing production
requirements of Health and Safety Code Section 33413(b).
H. This Agreement and the City Note require repayment of the city/seller loan plus
contingent interest and, in certain instances, payment of excess proceeds of sale. This
Agreement will remain in full effect as an encumbrance on the Property after any prepayment of
the City Note by the Owner.
NOW, THEREFORE, in consideration of the benefits received by the Owner and the
City, the Owner and the City agree, as follows;
1. DEFINITIONS AND EXHIBITS
A. The following terms are specifically defined for this Agreement and their
definitions can be found in the Sections indicated below:
(I ) "Agreement " - first sentence of the Agreement on page 1 .
** RECORDED COHCURRENTLY HEREWITH
Revised: 3/2/2005
36858
(2) "City "-first sentence of the Agreement on page 1.
(3) "City Deed of Trust"-Recital E.
(4) "City Designated Purchaser " - Section 12B.
(5) "City/Seller Loan"- Recital B.
(6) "City Note"- Recital E.
(7) "CHy 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 MB.
(13) Tint Lender"-Recital D.
(14) "First Lender Deed of Trust"-Recital D
(15) "First Lender Loan"-Recital D.
(16) -Home " - Recital B.
(17) "HUD "-Section 30.
(18) "Initial Tenn"-10B.
(19) "Market Purchaser "-Section IOC.
(20) "Maximum Restricted Resale Price "-Section 14.
(21) "Median Income * - Section 14A.
(22) "Owner "-first sentence of the Agreement on page 1.
(23) "Owner's Notice of Intent to Transfer "-Section 8.
(24) "Proposed Purchaser " - Section ISA.
Revised: 3/2/2005
36859
(25) "Purchase Price"-Recital C.
(26) "Restricted Future Sales Price "-Section 14A.
(27) "Transfer "-Section 7.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A: Legal Description of Property (Home)
(2) Exhibit B: Form of Owner Occupancy Certification
(3) Exhibit C: Form of Owner's Notice of Intent to Transfer
(4) Exhibit D: Form of Owner Acknowledgement of City Response
Notice
(5) Exhibit E: Form of Owner Request for City Subordination to
Refinanced First Lender Loan
2. OWNER CERTIFICATIONS
The Owner certifies that (0 the financial and other information previously provided in
order to qualify to purchase the Home is true and correct as of the date first written above, (ii) the
Owner is an Eligible Purchaser, and (iii) the Owner shall occupy the Home as the Owner's
principal place of residence.
3- OCCUPANCY AND LEASING OF HOME
The Owner shall occupy the Home as the Owner's principal place of residence within
sixty (60) days of close of escrow on the City/Seller 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, hi the event the Owner leases the Property to
a third party in violation of this section, any rents in excess of the owners monthly housing
payment, which includes the principal mortgage payment and interest, property taxes and
insurance, paid to the Owner by the lessee 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
Revised: 3/2/2005
36860
the Owner to die City, as evidenced by die Note, which die 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 fust-time homebuyer education class offered by
UNITED GUARANTY .
6. MAINTENANCE AND INSURANCE PROCEEDS
A. Th«» Owner shall maintain rtu» Horn* inrhuting 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 (S) years by appraisal, if
requested by City), naming the City as an additional insured. Additional insurance requirements
are set forth in Section 6 of the City Deed of Trust.
7- TRANSFER AND SALE RESTRICTIONS
Any Transfer of the Home will be subject to the provisions of this Agreement including,
without limitation, exercise of the City Option pursuant to Section 12 below. "Transfer " shall
mean any sale, assignment or transfer, voluntary or involuntary, of any interest in the Home,
including, but not limited to, a fee simple interest, a joint tenancy interest, tenancy in common
interest, a life estate, a leasehold interest, an interest evidenced by a land contract by which
possession of the Home is transferred and Owner retains title, or a deed of trust Any Transfer
without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not
include a transfer, (i) to an existing spouse who is also an obligor under the City Note; (ii) by the
Owner to a spouse where the spouse becomes the co-owner of the Home; (iii) between spouses
as part of a marriage dissolution proceeding; (iv) to an existing spouse of Owner by devise or
inheritance following the death of Owner; (v) by Owner into an inter vivos revocable trust in
which Owner is the trustor, (vi) by deed of trust or imposition of a Hen subordinate to the City
Deed of Trust or (vii) refinance of the Fust Mortgage meeting the requirements of Section 28 of
this Agreement; provided, however, mat 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 occupy the Home as his or her principal place of
residence and affirmatively assume Owner's obligations under this Agreement, the City Note and
the City Deed of Trust).
Revised: 3/2/2005
36861
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 die
City written notice of such intent (the "Owner's Notice of Intent to Transfer ") in the form shown
in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to
Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the
Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice
of Intent to Transfer shall be sent to the City in the manner and at the address provided in Section
33 of this Agreement. The Owner's Notice of Intent to Transfer shall include die information
necessary for the City to determine the Maximum Restricted Resale Price of the Property,
including the following information:
(1) the address of the Property;
(2) the date of purchase of the Property by the Owner;
(3) the purchase price of the Properly paid by the Owner at the time of his/her
purchase;
(4) a copy of the HUD-1 Settlement Statement or equivalent document from
the close of escrow on the Owner's purchase of the Property;
(5) the date on which Owner intends to vacate Property;
(6) the date the Property will be placed on the market; and
(7) the name and phone number of the person to contact to schedule
inspection of the Property by die City.
9. OWNER PREPARATION OF HOMF Ff>R $ArK
A. The Owner may not wish to contract with a real estate broker to sdl the
Home until the Owner ha* received the Cfty Response Notice pursuant to Section 10 below,
as the services of a broker will not be required if the City exercises toe City Option to
purchase die Home pursuant to Section 12 below.
B. Following delivery to die City of the Owner's Notice of Intent to Transfer, die
Owner shall prepare die Home for sale, as follows:
(1) within thirty (30) days of delivery of die Owner's Notice of Intent to
Transfer, die Owner shall obtain and deliver to die City a current written report of inspection of
die Home by a licensed structural pest control operator;
Revised: 3/2/2005
36862
(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 die date of the Owner's Notice of Intent to
Transfer, the Owner shall allow the City to inspect the Home to determine its physical condition;
(4) if the Home is vacant, the Owner shall maintain utility connections until
the close of escrow on the Transfer;
(5) in the event of purchase of the Property by the City or City Designated
Purchaser, die 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 City Response Notice shall inform the Owner of the City's election to
proceed under one (1) of die 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 Purr^fti9T
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 mat 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 die
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 die Owner may
receive for die Home, calculated by die City pursuant to Section 14 below; (4) whether
Homebuyer Program assistance from die City may be available to an Eligible Purchaser, (S)
Owner's repayment obligation as required by Section 13.
C. Extended Term Owner Sale to Market Purchaser. If die City Response Notice
notifies die Owner that die City or a City Designated Purchaser will not exercise die City Option
to purchase die Home, and die Owner has sent die Notice of Intent to Transfer between the
Revised: 3/2/2005
36863
fifteenth (15*) and thirty (30) years of the Term, (the "Extended Term "), the City Response
Notice shall inform Owner that Owner may proceed to sell the Home to a third party at any
income level (the "Market Purchaser ") for an unrestricted price. The City Response Notice
shall also inform Owner of Owner's repayment obligation as required by Section 13.
11- OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
No later than seven (7) days following the date of the City Response Notice, the Owner
shall acknowledge in writing to the City, in the form shown in the attached Exhibit D, that he/she
has received the City Response Notice and still intends to Transfer the Home.
12. CITY PURCHASE OPTION
A. The Owner agrees that if the Owner decides to Transfer the Home, the City shall
have the option to purchase the Home for the Maximum Restricted Resale Price calculated
pursuant to Section 14 of this Agreement (the "City Option "). The Owner shall pay the City a
transaction fee equal to six percent (6%) of the Maximum Restricted Resale Price if the City or a
City Designated Purchaser exercises the City Option and purchases the Home. The City Option
may be exercised by the City or by a City Designated Purchaser in the City Response Notice. If
die 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 die City Designated
Purchaser and shall notify the Owner mat 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 flw
City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the
Transfer.
D. The City acknowledges and agrees that the City Option snail only be exercised by
the City or a City Designated Purchaser for the purpose of retaining the Home as an affordable
housing unit and that the Home may only be resold by the City or a City Designated Purchaser as
an affordable housing unit in compliance with the Homebuyer Program and/or other City
affordable housing programs.
Revised: 3/2/2005
36864
13- REPAYMENT OF CITY NOTE
Upon any Transfer of the Property, die outstanding principal and interest due under die
City Note shall be repaid pursuant to die City Note and shall not be credited against die purchase
price; provided, however, that upon City exercising the City Option to purchase die Home, die
outstanding amount of principal and Contingent Interest due under die City Note shall be paid to
die City in die form of a credit against die purchase price to be paid by die City to die Owner,
and/or, die City Note may be assumed by an Eligible Purchaser provided tiiat die Eligible
Purchaser executes a new note (in die amount of die total principal and contingent interest tiiat is
owed), deed of trust and resale restriction agreement in forms provided by die City. Repayment
of die 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 die Agency Note.
14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price (die "Maximum Restricted Resale Price ") diat die Owner
shall receive from die resale of die Home or from die purchase of die Home by the City or City
Designated Purchaser or from odier sale or Transfer by die Owner when die Owner sends die
Notice of Intent to Transfer during die Initial Term shall be die Restricted Future Saks Price or
die Fair Market Value, whichever is less.
A. Restricted Future Sales Price.
(1) The Restricted Future Sales Price of die Home means die restricted sales
price of die Home at die time of purchase by die Owner, as set forth in Recital E to diis
Agreement, increased by die percentage of increase in die Median Income from die date of die
original purchase of die Home by die Owner to die date of receipt by die City of die Owner's
Notice of Intent to Transfer. "Median Income " shall refer to die median yearly income,
adjusted for a household size of four, in San Diego County, as published by die California
Department of Housing and Community Development ( "HCD "), or, in die event such income
determination is no longer published by HCD, or has not been updated for a period of at least
eighteen (18) montiis, die City may use or develop such odier reasonable mediod as it may
choose in order to determine die median yearly income in San Diego County. As of die date of
Owner's purchase of die Property, dw Median Income for a household of four persons is sixty-
nine diousand dollars fS69..000).
(2) The Restricted Future Saks 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 odier provisions of die City of Carlsbad Building
Code, as well as any odier repairs needed to put die Home into a "sellable condition ". Items
necessary to put a Home into sellable condition shall be determined by die City, and may include
cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed
appliance repairs and odier deferred maintenance repairs.
B. Fair Market Value. In certain circumstances it may be necessary to determine die
fair market value of die Property without taking account of die resale restrictions imposed by tius
Agreement (die "Fair Market Value "). These circumstances include: (1) where die parties wish
Revised: 3/2/200$
36865
to determine if the Restricted Future Sales Price exceeds the Fair Market Value in order to
determine the Maximum Restricted Resale Price pursuant to this section; (2) where the parties
wish to determine if the sales price of the Home to a Market Purchaser is comparable to the Fair
Market Value; and (3) to calculate the amount due under the City Note at the end of the term of
the City Note. If it is necessary to determine the Fair Market Value of the Property, it shall be
determined by a certified MAI or other qualified real estate appraiser approved in advance by the
City. If possible, the appraisal shall be based upon the sales prices of comparable properties sold
in the market area during the preceding three (3)-month period. The cost of the appraisal shall be
paid by the Owner, unless the appraisal is obtained from a new purchaser. Nothing in this
section shall preclude the Owner and the City from establishing the Fair Market Value of the
Property by mutual agreement in lieu of an appraisal pursuant to this section.
15. SALE BY OWNER DURING INITIAL TERM IF CITY DOES NOT EXERCISE
OPTION TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the 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 purchasers, and providing prospective purchasers 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 Citv. 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
10 Revised: 3/2/2005
36866
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 die sale of the Home
by the Owner to die 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 die Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego.
D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1) The name, address and telephone number in writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to me 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 die
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser tor
the Owner's personal property, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
(4) A written certification, from die Owner and the Proposed Purchaser in a
form acceptable to die City that the sale shall be closed in accordance with the terms of die sales
contract and other documents submitted to and approved by the City. The certification shall also
provide that die 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 die Proposed Purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in die sales contract and documents submitted to the City. The Written certification shall
also include a provision that in die event a Transfer is made in violation of the terms of Uiis
Agreement or false or misleading statements are made in any documents or certification
submitted to die City, die City shall have the right to foreclose on die Home or file an action at
law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred
by die Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of dris Agreement or for any of the Owner's and/or die Proposed Purchaser's costs and
legal expenses, shall be borne by die Owner and/or the Proposed Purchaser and tiiey shall hold
the City harmless and reimburse die City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of du's Agreement
(5) An executed resale agreement and deed of trust to die City from die
Proposed Purchaser in forms provided by the City. If die Proposed Purchaser is receiving
assistance from die Homebuyer Program, a promissory note to die City shall also be required.
H Revised-3/2/2005
36867
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 die sale of the Home, the
escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, certified copies of the recorded City
deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement
statement, escrow instructions, and any other documents which the City may reasonably request.
16. PAYMENT TO CITY OF EXCESS SALES PROCEEDS
If the Owner makes a Transfer in violation of this Agreement at any time during the
Initial Term or Extended Term, the Owner shall pay ow Excess Sales Proceeds to the City. For
purposes of this Agreement, "Excess Sales Proceeds " shall mean ninety-four percent (94%) of
the amount by which the gross sales proceeds received by the Owner from the new purchaser
exceed the Maximum Restricted Resale Price forme Home (in the amount that was stated in the
City Response Notice). This amount shall be a debt of the Owner to the City, further evidenced
by the City Note, and secured by the City Deed of Trust The Owner acknowledges that the City
shall have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust
until the Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales
Proceeds for City affordable housing programs. The Owner and the City acknowledge mat 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. jflAMg Of PROPERTY BY OWNER DURING EXTENDED TERM
During the Extended Term, in the event the City Response Notice notifies the Owner to
proceed to sell the Home to a Market Purchaser at a price greater than or equal to the Fair Market
Value of the Home, the Owner may proceed to sell the Home in compliance with the following
requirements:
Upon any sale of the Home, the Owner shall submit to the City at feast 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 sates price of die Home. The certification shall also
provide mat 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.
12 Revised: 3/2/2005
36868
18. DEFAULTS
A. The following events shaft constitute a Default by the Owner under this
Agreement:
(1) The City determines that die 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 his or her principal place of
residence, as required pursuant to Section 3 above, and such failure continues following written
notice by die 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
(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 Chy Deed of Trust;
(2) Apply to a court of competent jurisdiction for such relief at law or in
equity as may be appropriate;
13 Revised: 3/2/2005
36869
(3) Declare a Default under the City Note and the City Deed of Trust and
pursue all City remedies under the City Note and the City Deed of Trust; and
(4) Exercise the City Option upon Default as described in Section 21 below.
19. NOTICE AND CURE
Upon 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 die City within a reasonable period of time, not longer man 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
mis 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 die City in the Office of the
Recorder of the County of San Diego for the benefit of the City. The request for notice shall
include a statement oat failure on the part of the First Lender to send such notice of default or a
notice of sale shall not affect the time limitations in the default provisions of the underlying deed
of trust or mortgage or in any way affect the validity of any foreclosure actions taken by the First
Lender under any deed of trust or mortgage. 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 hi 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 snail 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
Chy 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
14 Revised: 3/2/2005
36870
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. Exercjse 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 Hen,
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, or prior to the date of the foreclosure sale should that be
sooner than the expiration of flie 90 days, die City shall purchase the Home for the Maximum
Restricted Resale Price set forth in Section 14 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. This option to purchase the Home in the event of default under this Agreement or upon
default under any other promissory note, deed of trust or any other lien recorded against die
Home shall not operate to extend any time limitations in the default provisions of the underlying
deed of trust or mortgage or to grant the City any further rights under the underlying deed of trust
or mortgage than are afforded to the Owner. In no event shall the City have any time beyond the
date of the foreclosure sale to purchase the Home. The City may assign its rights to purchase the
Home under this section to a City Designated Purchaser.
C.Affbrdable Housing Purposes. The City acknowledges and agrees that the City option
granted by Section 21 shall only be exercised by the City or a City Designated Purchaser for the
purpose of retaining the Home as an affordable housing unit and that Ac Home may only be
resold by the City or a City Designated Purchaser as an affordable housing unit in compliance
with the Homebuyer Program and/or other City affordable housing programs.
22. NONLIABILITY OF THE CITY
A. No Obligation to Exercise Option. The City shall have no obligation to exercise
any option granted it under this Agreement. In no event shall the City become in any way liable
or obligated to the Owner or any successor-m-mterest 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 succcssor-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
15 Revised: 3/2/2005
36871
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 me holder
of such excess proceeds to pay such proceeds (in addition to other amounts due the City pursuant
to the City Note and mis Agreement) to the City in consideration of the benefits received by the
Owner through purchase of the Home under mis Agreement
24. RESTRICTION ON INSURANCE PROCEEDS
If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the
Home, the Owner shall pay the City the portion of any insurance proceeds received by the
Owner (subject to the rights of the First Lender) for such destruction or damage which is in
excess of the Maximum Restricted Resale Price calculated pursuant to Section 14 above.
25. TERM OF
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) thirty (30) years from the date of recordatkm of
mis Agreement or (it) 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.
The Owner covenants mat he or she has not, and will not, execute any other agreement
with provisions contradictory to or in opposition to the provisions of this Agreement hereof, and
that, in any event, this Agreement is controlling as to the rights and obligations between and
among the Owner, the City and their respective successors.
16 Revised: 3/2/2005
36872
27. SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of die First Lender Loan and shall not impair the rights of the First
Lender, or die First Lender's successor or assign, to exercise its remedies under die First Lender
Deed of Trust in die event of default under die First Lender Deed of Trust by die Owner. Such
remedies under die First Lender Deed of Trust include die 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, diis Agreement shall be forever terminated and shall have no
further effect as to die Home or any transferee thereafter; provided, however, if die holder of
such First Lender Deed of Trust acquired tide to die Home pursuant to a deed or assignment in
lieu of foreclosure, diis Agreement shall automatically terminate upon such acquisition of tide,
provided diat (i) die City has been given written notice of default under such First Lender Deed
of Trust and (ii) die City shall not have cured or commenced to cure die default widtin such
diirty (30)-day period and given its firm commitment to complete die cure in die form and
substance acceptable to die 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 die City Note shall not be due upon prepayment and
refinancing of die First Lender Loan, and diis Agreement and die City Deed of Trust shall be
subordinated to die refinanced First Lender Loan, provided diat (i) such refinancing is approved
by die City, (ii) die amount refinanced does not exceed die outstanding principal balance of die
First Mortgage at die time of refinance phis reasonable costs of refinance, and (iii) die refinance
does not result in higher monthly payments on die First Lender Loan dun were due prior to die
refinance. Mortgage loans or equity lines of credit junior in lien priority to die City deed of trust
are not permitted. The City and die Owner agree diat die requirements of diis section are
necessary to ensure die continued affordability of die Property to Owner and to minimize die risk
of loss of die Property by Owner dirough default and foreclosure of mortgage loans. Owner
further acknowledges diat violation of die provisions of diis section shall constitute a Default
under diis Agreement A form for use by die Owner in requesting City subordination to a
refinanced First Lender Loan is attached hereto as Exhibit E.
29. NOND1SCRIMINATION
The Owner covenants by and for itself and its successors and assigns diat diere 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 die sale, transfer, use, occupancy, tenure or enjoyment of die Home, nor shall die
Owner or any person claiming under or dirough die Owner establish or permit any such practice
or practices of discrimination or segregation with reference to die use, occupancy, or transfer of
die Home. The foregoing covenant shall run with die land.
30. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
17 Revised: 3/2/2005
36873
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement
shall not diminish or affect the rights of the California Housing Finance Agency ( "CHFA "), the
United States Department of Housing and Urban Development ( "HUD "), the Federal National
Mortgage Association ( "FNMA "), or the Veterans Administration ( "VA ") under the First
Lender Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against
the Home in compliance with Section 28 above.
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief, or (it) the Owner is
undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment
^ 1 AAAJr y pfO^HUIl*
32. IfrTVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for airy reason be
held to be invalid, illegal or unenforceable in any respect, men such provision or provisions shall
be deemed severable from the remaining provisions contained in mis Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
33. NOTICES
All notices required herein shall be sent by certified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on he delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or die date
Notice was returned as undeliverable as follows:
Tothe 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
1$ Revised: 3/2/2005
36874
To the First Lender
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
34. INTERPRETATION OF AGREEMENT
The terms of this Agreement shall be interpreted so as to avoid speculation on the Home
and to insure to the extent possible that the mortgage payments remain affordable to low and
moderate income households.
35. CONTROLLING LAW
The terms of this Agreement shall be interpreted under the laws of the State of California.
*****
36. EXHIBITS
Any exhibits referred to hi this Agreement are incorporated in this Agreement by such
reference.
IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date
fust written above.
CITY:
City of Carlsbad,
OWNER:
By
Name:
Title: CITY MANAGER
Print Name
Signature
19 Revised: 3/2/2005
36875
STATE OF CALIFORNIA
COUNTY OF
)
)ss.)
On
personally appeared'
., 2002, before me, the undersigned, a Notary Public,
to me on the basis of satisfactory evidence) to be the person(s). whose name(6)
is/are-subscribed to the within instrument, and acknowledged to me tnatJhc/Bhe/thoy- executed the
same in Jris/her/Uwk authorized capacity(ies), and that by hi6/her/Ae»^ignature(8)jon the
instrument the person^ or the entity upon behalf of which the personfs) acted, executed the
instrument.
WITNESS my ifficial seal.
DAVID T.HUMMERICH
Commission #1397103
Notary Public - California
San Diego County
My Comm. Expires Feb 27,2007
101CM5U72084.3
12/10/D3
36876
STATE OF CALIFORNIA
COUNTY OF San
)
)ss.
)
On hAo/ o)lo
personally appeared Ra CL
2<X& before me, the undersigned, a Notary Public,
, personalty known to
die die-to yfaotipfaotorygvide
executed me
on die
is/are subscribed to die widiin instrument,,and acknowledged to me diat
same in his/her/dfeir audwrized capacity(i£$, and diat by his/hecftheirsi
instrument die person^, or die entity upon behalf of which die person^) acted, executed die
instrument.
WITNESS my hand and official seal.
STATE OF CALIFORNIA
COUNTY OF
)
)ss.
)
PAJR\CiA L.
Commission « 1353062
Notary PuhSic - California
Sen Diego County
My Corr»Ti. Expiras ?.*av 24,
RATR'CiAL CResCGNTt' 'L
Corrsfnission # 1358052 &
Notary Pu&lic - California f
3,"'i D;i>f3o County r
P/y CorsTTi tlxpcfrg M-y24,20051
On
personally appeared.
_, 200_, before me, die undersigned, a Notary Public,
_, personally known to me (or
proved to me on die basis of satisfactory evidence) to be dw person(s) whose name(s) is/are
subscribed to die wrdiin instrument, and acknowledged to me diat he/she/diey executed die same
in his/herftheir audiorized capacity(ies), and diat by his/her/dieir signature(s) on die instrument
die person(s), or die entity upon behalf of which die person(s) acted, executed die instrument
WITNESS my hand and official seal.
101CM5\172064 3
12/KVD3
36877
EXHIBIT A
Legal Description of Property (Home)
10KMA172MM.3 A-l
ORDER NO. 7304000-24
36878
EXHIBIT "A"
(LEGAL DESCRIPTION)
A CONDOMINIUM UNIT COMPOSED OF:
PARCEL 1 (COMMON AREA INTEREST):
AN UNDIVIDED FRACTIONAL INTEREST AS TENANT IN COMMON IN AND TO THE COMMON
AREA OF PHASE 2 AS DESCRIBED ON THE MULBERRY AT BRESSI RANCH CONDOMINIUM
PLAN (THE "CONDOMINIUM PLAN") RECORDED FEBRUARY 11, 2005, AS DOCUMENT NO.
2005-0117224, IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA, BEING A PORTION OF LOT 1 OF CARLSBAD TRACT MAP CT 03-03, IN THE CITY
OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 14800 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON MAY 21, 2004. THE UNDIVIDED FRACTIONAL INTEREST HEREBY CONVEYED IS
THE RECIPROCAL OF THE NUMBER OF LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN
AS BEING WITHIN PHASE 1 OF THE CONDOMINIUM PLAN.
EXCEPTING THEREFROM ALL LIVING UNITS SHOWN ON THE CONDOMINIUM PLAN.
ALSO EXCEPTING THEREFROM, ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN,
GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT
MAY BE WITHIN OR UNDER THE ABOVE DESCRIBED LAND ("LAND"), TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
STORING IN AND REMOVING SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING
THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER
THAN THE LAND, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS
THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND
BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO REDRILL, RETUNNEL,
EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT,
HOWEVER THE RIGHT TO DRILL, MINE, STORE, EXPLORE OR OPERATE THROUGH THE
SURFACE OR THE UPPER 500 FEET OF THE SUBSURFACE OF THE LAND, AS RESERVED BY
BRESSI GARDENLANE, LLC, BY DEED RECORDED JANUARY 25, 2005, AS DOCUMENT NO.
2005-0061440, OFFICIAL RECORDS
PARCEL 2 (LIVING UNIT):
LIVING UNIT NO. 100, AS SHOWN UPON THE CONDOMINIUM PLAN.
PARCEL 3 (EXCLUSIVE USE AREAS:
THE EXCLUSIVE RIGHT TO USE ANY EXCLUSIVE USE AREA SHOWN ON THE CONDOMINIUM
PLAN AS BEING APPURTENANT TO THE LIVING UNIT DESCRIBED IN PARCEL 2 ABOVE.
Page 5
ORDER NO. 7304000-24
36879
PARCEL 4 (EASEMENT OVER ASSOCIATION PROPERTY):
A NON-EXCLUSIVE EASEMENT FOR USE AND ENJOYMENT OF AND ACCESS OVER THE
ASSOCIATION PROPERTY ("ASSOCIATION PROPERTY" IS DEFINED IN THE DECLARATION
OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION OF EASEMENTS FOR
MULBERRY AT BRESSI RANCH RECORDED ON MARCH 10, 2005, AS DOCUMENT NO. 2005-
0197712, OFFICIAL RECORDS), EXCEPTING ANY EXCLUSIVE USE AREA. THE EASEMENT
HEREBY RESERVED, WHICH IS APPURTENANT TO THE LIVING UNIT DESCRIBED ABOVE, IS
FOR ACCESS AND USE OF THE ASSOCIATION PROPERTY, SUBJECT TO THE PROVISIONS OF
THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RESERVATION
OF EASEMENTS FOR MULBERRY AT BRESSI RANCH AND THE RULES AND REGULATIONS OF
THE MULBERRY AT BRESSI RANCH HOMEOWNERS ASSOCIATION, A CALIFORNIA
NONPROFIT MUTUAL BENEFIT CORPORATION.
Page 6
36880
EXHIBIT B
Form of Owner Occupancy Certification
To: City of Carlsbad ( "City")
From: [name of owners)] ( "Owners)")
Address of Home: ("Property")
Date: '
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) (die "Home ") as my/our
principal place of residence and that I/we have occupied me Home for ( )
(insert nmber) months of the calendar year (insert previous calendar year).
Attached to this letter is a copy of (insert utility bfll or driver's license] showing
my place of residence.
This Owner Occupancy Certification is signed on - , 20 , under penalty of
perjury.
By:_
Owner (type name]
By:.
Owner (type name]
Doe Date: of each calendar year.
Attach copy of utility bfll or driver's license showing address of Home.
101*151172084.3 B-l
12/10/03
36881
EXHIBIT C
Form of Owner's Notice of Intent to Transfer
To: City of Carlsbad ("City")
From: [name of owner(s)| ( "Owners) ")
Address of Home: ("Property")
Date:
Please be notified pursuant to Section 7 of the Resale Restriction Agreement and Option to
Purchase between Owner and City dated , that the Owner intends to transfer the
Property listed above.
A. The following information is provided to the City pursuant to Section 7 of the Resale
Agreement:
1. Address of Property:
2. Date Owner purchased Property:
3. Purchase Price paid by Owner when Property was purchased:
4. Date Owner intends to vacate Property:
5. Date Property will be placed on market:
6. Name and phone number of person for Cfty to contact to schedule inspection:
and ,
(name) (phone number)
B. As required by Section 8 of the Resale Agreement, the following the HUD-1 Settlement
Statement from Owner's purchase of the property is attached.
C. I have not yet listed the Property for sale with a multiple listing service, or contacted a
real estate broker or financial institution. I agree to prepare the Property for sale by:
1. obtaining a pest control report within thirty(30) days of die 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,
1010MSM72084.3 C-l
36882
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
101(A15\1T20ft4.3 C-2
12/1W03
36883
EXHIBIT D
Form of Owner Acknowledgement of City Response Notice
Name:
Address of Property:
Date:
. [insert name) hereby acknowledge that I received the City
Response Notice (as described in Section 10 of the Resale Agreement on (insert
date]
By; ,
D-l
12/1W03
36884
EXHIBIT E
Form of Owner Request for City Subordination
to Refinanced First Lender Loan
To: City of Carlsbad ("City")
From: ("Owner")
Property Address: ("Property")
Date: •
The Owner hereby requests the City to approve the Owner's refinance of the existing first
mortgage on the Property. The Owner provides the following information which it certifies to be
true and correct:
1. Original Purchase Price of Property: $
2. Original principal balance of existing First Lender Loan: $_
3. Interest rate of existing First Lender Loan: $_
4. Outstanding principal balance of existing First
Lender Loan: $_
5. Monthly payments due on existing First Lender Loan $_
6. Principal amount of proposed new First Lender Loan: $_
7. Interest rate of Proposed new First Lender Loan: $_
8. Monthly payments to be due on new First Lender Loan: $_
The Owner hereby certifies the above information is true and correct and this Owner Request is
executed under penalty of penury on (insert date).
By:_
Owner
By:
Owner
101CM5M72064.3 E-l
12/W03
36885
GOVERNMENT CODE SEC. 27361.7
I certify under the penalty of perjury that the notary seal on the document to which
this statement is attached reads as follows:
NAME OF NOTARY: PATRICIA L. CRESCENTI
DATE COMMISSION EXPIRES: MAY 24, 2006
COMMISSION NO: 1358062
VENDOR NO: NNA1
COUNTY WHERE BOND IS FILED: SAN DIEGO
* * # *
Place of execution: Orange, California Date: May 27, 2005
North American Title Company