HomeMy WebLinkAboutYoung, Yanna & Padilla, Javier Benitez; 2005-11-11;NOTICE TO BORROWER:
THIS NOTE IS NOT ASSUMABLE
PROMISSORY NOTE
Secured by Deed of Trust
$ 218,500.00 Carlsbad, California
NOVEMBER 11 20()5
FOR VALUE RECEIVED, the undersigned YANNA YUNG
JAVIER BENITEZ PADILLA
(the "Borrower")
promises to pay to the City of Carlsbad, a municipal corporation (the "City"), or order, at the
Housing and Redevelopment Department, 2965 Roosevelt Street, Suite B, Carlsbad, California
92008-2389, or such other place as the City may designate in writing, the principal sum of
TWO HUNDRED EIGHTEEN THOUSAND FIVE HUNDRED AND 00/100 Dollars
($7i«Jsnn.nn plus Contingent Interest calculated pursuant to Section 3 below, plus 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
2673 LEIGHTON CIRCLE, CARLSBAD, 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
downpayment 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 the 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 (15) 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 the Resale Agreement.
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2. Definitions. The terms set forth in this section shall have the following meanings
in this Note.
a. "Appreciation Amount" shall mean the amount calculated by subtracting
the total original purchase price of the Residence paid by the Borrower, which was
FOUR HUNDRED TWENTY THOUSAND AND 00/100 Dollars
($420,000.00 )) 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 ha1 ve 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)-month period. The cost of the appraisal shall be paid by the Borrower. Nothing in this
subparagraph shall preclude the Borrower and the City from establishing the Fair Market Value
of the Residence by mutual agreement in lieu of an 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 unit and 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 11, 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
'THTKTY WINE percent ( 39 %) 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, (ii)
on the date Transfer is made whether voluntarily, involuntarily, or by operation of law and
whether by deed, contract of sale, gift, devise, bequest or otherwise, (iii) in the event Borrower
ceases to occupy the 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
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damages and costs sustained by the City due to the failure to make timely payments would be
extremely difficult to measure and that the charges specified in this paragraph represent a
reasonable estimate by Borrower and the City of a fair average compensation for such damages
and costs. Such charges shall be paid by Borrower without prejudice to the right of the City to
collect any other amounts provided to be paid under this Note, the Resale Agreement or the 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. Assumption of Note. The Borrower acknowledges that this Note is given in
connection with the purchase of property (the "Residence") as part of a program of the City to
assist in the purchase of homes by lower income persons. Consequently, this Note is
assumableonly by Eligible Purchasers (as defined in Section 15B 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 plus reasonable costs of
refinance, and (iii) the refinance does not result in higher monthly payments on the First
Mortgage Loan than were due prior to the refinance.
12. Default.
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a. The Borrower shall be in default under this Note if he or she is in default
underline 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 than 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, that 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 this 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 this Note, for themselves, their heirs, legal representatives, successors and assigns,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest,
dishonor and non-payment of this Note, and expressly waive any rights to be released by reason
of any extension of time or change in terms of payment, or change, alteration or release of any
security given for the payments hereof, and expressly waive the right to plead any and all statutes
of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incurred, including reasonable attorney
fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs
and disbursements allowed by law, such sum as a court may adjudge reasonable as attorneys'
fees in such action.
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16. No Waiver by the City. No waiver of any breach, default or failure of condition
under the terms of this Note shall be implied from any failure of the City to take action with
respect to such breach, default or failure or from any previous Waiver of any similar or unrelated
breach, default or failure.
17. Notices. All notices required in this Note shall be sent by certified mail, return
receipt requested, or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Borrower:
At the address of the 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. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
borrower and lender, and that the City does not undertake or assume any responsibility for or
duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of
the quality, adequacy or suitability of the Residence 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 Residence 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
Residence and will hold the City harmless from any liability, loss or damage for these things.
20. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys
fees that the City may incur as a direct or indirect consequence of:
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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, the Resale Agreement or the 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 lieu of foreclosure, or assignment to the-
Secretary of the United States Department of Housing and Urban Development.
22. Controlling Law. This Note shall be construed in accordance with and be
governed by the laws of the State of California.
23. Assignment by City. The City may assign its right to receive the proceeds under
this Note to any person and upon notice to the Borrower by the City all payments shall be made
to the assignee.
24. Invalid Provisions. If any one or more of the provisions contained in this Note
shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions contained in
this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision
had never been contained in this Note.
25. Entire Agreement. This Note (along with the Resale Agreement and Deed of
Trust) sets forth the entire understanding and agreement of the City and the Borrower and any
amendment, alteration or interpretation of this Note must be in writing signed by bom the City
and the Borrower.
BORROWER
JAVOSR \BENITEZ PADILLA
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STATE OF CALIFORNIA
COUNTY OF
)
) ss.
)
On V"7
personally appeared
O < \_v^ A
200^ before me, the undersigned, a Notary Publjc,
, personally knewn to
rnfi-(e*-proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is&re subscribed to the within instrument, and acknowledged to me that fee/she/they executed the
same in hj&flrerytheir authorized capacity(ies), and that by hkriieT/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.
STATE OF CALIFORNIA
COUNTY OF
)
) ss.
)
DAVID T.HUMMERICH
Commission* 1397103
Notary Public - California
San Diego County
My Comm. Expires Feb 27,2007
]
J
On _, 200_, before me, the undersigned, a Notary Public,
personally appeared
_, 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.
1010V15VI72084.3
12/10/03
ORDER NO. 7303963-24
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 1 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. 63, 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 4
ORDER NO. 7303963-24
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 5
NORTH AMERICAN TITLE CO.
RECORDING REQUESTED BY:
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad. California 92008
Q ^ A A«7 O t U
/
^
A
f
DOC# 2005-1019450
NOV 23, 2005 4:56 PM
OFFICIAL RECORDS
:.AN DIEGO COUNTY RECORDER'S OFFICE
GREGORY..! SMITH, COUNTY RECORDER
FEES: 0,00 WAYS' ?
PAGES 13 DA ,
(Space above for Recorder's Use)
NOTE TO BORROWER:
THIS DEED OF TRUST CONTAINS
PROVISIONS PROHIBITING ASSUMPTIONS
DEED OF TRUST
AND SECURITY AGREEMENT
-NiI
OS
f?
THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of
11TH day of NOVEMBER 200_L among YANNA YUNG ANB JAVIER gENITEZ PAPILLA,this
WIFE .AND HUSBAND
as trustor, and UNIVERSAL AMERICAN MORTGAGE COMPANY. LLC •
and the City of Carlsbad, a municipal corporation (the "City"), as beneficiary.
. ("Borrower")
. ("Trustee"),
The Borrower, in consideration of the promises herein recited and the trust herein
created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of
sale, the property located in the City of Carlsbad, State of California, described in the attached
Exhibit A (the "Property").2673 LEIGHTON CIRCLE, 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
the property covered by this Deed of Trust; and
TOGETHER with all articles of personal property or fixtures now or hereafter attached to
or used in and about the building or buildings now erected or hereafter to be erected on the
Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, including all
other goods and chattels and personal property as are ever used or furnished in operating a
building, or the activities 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
THIS DEED OF TRUST IS SECOND AND SUBORDINATE
TO A FIRST DEED OF TRUST RECORDING
CONCURRENTLY HEREWITH.
12/16/2003
9547
same are, or shall be attached to said building or buildings in any manner; and all of the
foregoing, together with the Property, is herein referred to as the "Security";
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by a promissory note in
the amount of TWO HUNDRED EIGHTEEN THOUSAHD FIVE HDUDKED AND DO/100 p^ars
f$ 218'500'0.°executed by the Borrower to the City as of the date of this Deed of Trust (the
"Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced
in accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained; and
TO SECURE to the City the performance of the covenants and agreements of Borrower
contained in that certain Resale Restriction Agreement and Option to Purchase executed by and
between the Borrower and the City of even date herewith (the "Resale Agreement") and to secure
the payment of Excess Sales Proceeds (as defined in the Resale Agreement) that may become
due by Borrower to City;
TO SECURE the performance of any obligations of Borrower in any other agreements
with respect to the financing of the Property or the Security the failure of which would adversely
affect Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
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, that other than this Deed of
Trust, the Security is encumbered only by: (a) that deed of trust executed by the Borrower in
connection with a loan made to the Borrower by UNIVERSAL AMERICAN MORTGAGE COMPANY
OF CALIFORNIA or its successors and assigns (the "First Lender"), dated
NOVEMBER 11TH y 200 5_, 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 the
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 than 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 Loan. The Borrower will promptly repay, when due, the
principal, interest and other sums required by the Note and Resale Agreement, including all
principal and interest on the City/Seller Loan (as defined in the Note) and the Excess Sales
*** RECORDED CONCURRENTLY HEREWITH
9 12/16/2003
29548
Proceeds due tinder the Resale Agreement. The Note contains the following provisions
concerning repayment of the 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 "Residence") 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 15B 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 prinicipal 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 all of the
covenants and agreements of the First Lender Note, First Lender Deed of Trust, and related First
Lender loan documents.
Sections.. 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 this
paragraph so long as the Borrower will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or
defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement
of the lien or forfeiture of the Security or any part thereof.
Section 7. Insurance. The Borrower will keep the Security insured with a standard
fire and extended coverage insurance policy in at least an amount equal to the replacement cost
of the Security, but in no event less than the amount necessary to prevent the Borrower from
becoming a co-insurer under the terms of the policy.
The insurance carrier providing this insurance shall be licensed to do business in the State
of California and be chosen by the Borrower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal
Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of
Housing and Urban Development, the United States Department of Veterans Affairs, or
successors thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and
will include a standard mortgagee clause with standard lender's endorsement in favor of the
holder of the First Lender Note and the City as their interests may appear and in a form
12/16/2003
29549
acceptable to the City. The City shall have the right to hold, or cause its designated agent to
hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or
its designated agent, the original insurance policies or certificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt
notice to the insurance carrier and the City or its designated agent. The City, or its designated
agent, may make proof of loss if not made promptly by the Borrower. The City shall receive
thirty (30) days advance notice of cancellation of any insurance policies required under this
section.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject
to the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of
Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to
the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with
the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the
Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the
date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a
claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of
Trust.
If the Security is acquired by the City, all right, title and interest of the Borrower in and to
any insurance policy and in and to the proceeds thereof resulting from damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed
of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
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 there arises a condition in contravention of this section, and if the Borrower has not
cured such condition within thirty (30) days after receiving a City notice of such a condition,-
then in addition to any other rights available to the City, the City shall have the right (but not the
obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien
or other encumbrance against the Security to recover its cost of curing.
Section 9. Protection of the City's Security. If the Borrower fails to perform the
covenants and agreements contained in this Deed of Trust, the Resale Agreement, the First
Lender Note, the First Lender Deed of Trust, or if any action or proceeding is commenced which
materially affects the City's interest in the Security, including, but not limited to, default under
the First Lender Deed of Trust, the First Lender Note or any other deed of trust encumbering the
Property, eminent domain, insolvency, code enforcement, or arrangements or proceedings
involving a bankrupt or decedent, then the City, at the City's option, upon notice to the Borrower,
may make such appearances, disburse such sums and take such action as it determines necessary
to protect the City's interest, including but not limited to, disbursement of reasonable attorney's
fees and entry upon the Security to make repairs.
12/16/2003
29550
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 by the City Not a Waiver. Any forbearance by the City in
exercising any right or remedy will not be a waiver of the exercise of any such right or remedy,
nor shall acceptance by the City of any payment provided for in the Note constitute a waiver of
the City's right to require prompt payment of any remaining principal and interest owed. The
procurement of insurance or the payment of taxes or other liens or charges by the City will not be
a waiver of the City's right to accelerate the maturity of the indebtedness secured by this Deed of
Trust.
Section 12. Hazardous Substances. Borrower shall not cause or permit the presence,
use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower
shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of
any Environmental Law. The preceding two sentences shall not apply to the presence, use, or
storage on the Property of small quantities of Hazardous Substances that are generally
recognized to be appropriate to normal residential uses and to maintenance of the Property.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
Borrower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving the
Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that
any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
Section 13. Remedies Cumulative. All remedies provided in this Deed of Trust are
distinct and cumulative to any other right or remedy under this Deed of Trust or any other
document, or afforded by law or equity, and may be exercised concurrently, independently or
successively.
12/16/2003
29551
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 the provisions of this Deed of Trust.
Section 15. 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 the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Owner:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Housing and Redevelopment Director
The parries may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
Section 17.Controlling Law. This Deed of Trust shall be construed in accordance with
and be governed by the laws of the State of California.
Section 1 SJnvalid Provisions. If any one or more of the provisions contained in this
Deed of Trust, Resale Agreement or the Note shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from
the remaining provisions, and this Deed of Trust, the Resale Agreement and the Note shall be
construed as if such invalid, illegal or unenforceable provision had never been contained in this
Deed of Trust, Resale Agreement or the Note.
Section 19.Captions. The captions and headings in this Deed of Trust are for
convenience only and are not to be used to interpret or define the provisions hereof.
12/16/2003
2 9552
Section 20. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of an
Borrower and the administrators of City inclusionary housing program, and that the City does
not undertake or assume any responsibility for or duty to Borrower to select, review, inspect,
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, the covenants to pay, when due, any sums secured by this Deed of Trust, the City,
prior to acceleration, will send, in the manner set forth in Section 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 this Deed of Trust, by which such breach, if curable, is to be cured; and
(4) if the breach is curable, that failure to cure such breach on or before the date specified in the
notice may result in acceleration of the sums secured by this Deed of Trust and sale of the
Security. Notice shall be effective as of the date shown on the delivery receipt as the date of
delivery, the date delivery was refused or the date the notice was returned as undeliverable. The
notice will also inform the Borrower of the Borrower's right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of default or any other defense of the
Borrower to acceleration and sale. If the breach is not curable or is not cured on or before the
date specified in the notice, the City, at the City's option, may: (a) declare all of the sums
secured by this Deed of Trust to be immediately due and payable without further demand and
may invoke the power of sale and any other remedies permitted by California law; (b) either in
person or by agent, with or without bringing any action or proceeding, or by a receiver appointed
by a court, and without regard to the adequacy of its security, enter upon the Security and take
possession thereof (or any part thereof) and of any of the Security, in its own name or in the
name of the Trustee, and do any acts which it deems necessary or desirable to preserve the value
or marketability of the Security, or part thereof or interest therein, increase the income therefrom
or protect the security thereof. The entering upon and taking possession of the Security shall not
cure or waive any breach hereunder or invalidate any act done in response to such breach and,
12/16/2003
29553
notwithstanding the continuance in possession of the Security, the City shall be entitled to
exercise every right provided for in this Deed of Trust, or by law upon occurrence of any
uncured breach, including the right to exercise the power of sale; (c) commence an action to
foreclose this Deed of Trust as a mortgage^ appoint a receiver, or specifically enforce any of the
covenants hereof; (d) deliver to the Trustee a written declaration of default and demand for sale,
pursuant to the provisions for notice of sale found at California Civil Code Sections 2924, et
seq.. as amended from time to time; or (e) exercise all other rights and remedies provided herein,
in the instruments by which the Borrower acquires title to any Security, or in any other document
or agreement now or hereafter evidencing, creating or securing all or any portion of the
obligations secured hereby, or provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
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 this Deed of Trust. Nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed.
Section 24. Borrower's Right to Reinstate. Notwithstanding the City's acceleration of
the sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings
begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days
before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all
sums, if any, which would be then due under this Deed of Trust and no acceleration under the
Note has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of
the Borrower contained in the Note, Resale Agreement or this Deed of Trust; (c) the Borrower
pays all reasonable expenses incurred by City and the Trustee in enforcing the covenants and
agreements of the Borrower contained in the Note, Resale Agreement or this Deed of Trust, and
in enforcing the City's and the Trustee's remedies, including, but not limited to, reasonable
attorney's fees; and (d) the Borrower takes such action as City may reasonably require to assure
that the lien of this Deed of Trust, City's interest in the Security and the Borrower's obligation to
pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and
cure by the Borrower, this Deed of Trust and the obligations secured hereby will remain in full
force and effect as if no acceleration had occurred.
Section 25. Reconveyance. Upon payment of all sums secured by this Deed of Trust,
the City will request the Trustee to reconvey the Security and will surrender this Deed of Trust
and the Note to the Trustee. The Trustee will reconvey the Security without warranty and
without charge to the person or persons legally entitled thereto. Such person or persons will pay
all costs of recordation, if any.
12/16/2003
29554
Section 26. Substitute Trustee. The City, at the City's option, may from time to time
remove the Trustee and appoint a successor trustee to any trustee appointed hereurider. The
successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein
and by applicable law.
Section 27. Subordination to First Lender Mortgage. Notwithstanding any other
provision hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First
Lender Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's
successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of
default under the First Lender Deed of Trust by the Borrower. Such remedies under the First
Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in
lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of
foreclosure, or upon assignment of the First Lender Deed of Trust to the Secretary of the United
States Department of Housing and Urban Development (the "Secretary"), this Deed of Trust
shall be forever terminated and shall have no further effect as to the Property or any transferee
thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to
the Property pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed
of Trust is assigned to the Secretary, this Deed of Trust shall automatically terminate upon such
acquisition of title or assignment to the Secretary provided that (i) the City has been given
written notice of default under such First Lender Deed of Trust and (ii) the City shall not have
cured or commenced to cure the default within such thirty (30)-day period and given its firm
commitment to complete the cure in the form and substance acceptable to the First Lender.
• Borrower agrees to record any necessary documents to effect such termination, if applicable.
Section 28. Attorney's Fees. If any action or proceeding is brought to enforce this
Deed of Trust or any provision of this Deed of Trust or the Note, the prevailing party shall be
entitled to its attorney's fees and the cost of such action or proceeding.
IN WITNESS WHEREOF, the Borrower has executed this Deed Of Trust as of the date
first written above.
Borrower
JAVIE&MlfI£EZ PADILLA
Borrower
12/16/2003
29555
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
OnVl 200
appeared V NJO-
before me.
-A A\J v g*J \T<s.-*
. personally
IJL A
, perDonolly-
known to mc-for proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) js/are subscribed to the within instrument and acknowledged to me that he/sfce/they
executed the same in Msfller/their authorized capacity(ies), and that by htsflrer/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
>d official seal.
DAVID T. HUMMERICH
Commission #1397103
Notary Public - California |
San Diego County f
My Comm. ExpiresFeb 27,2007P
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On
appeared.
200 , 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.
EXHIBIT A
Property Description
1010U5\172083.3 A-l
29556
ORDER NO. 7303963-24
29557
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 3 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 3 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. 63, 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 4
ORDER NO. 7303963-24 '29558
'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 5
RECORDING REQUESTED BY:
4
City of Carlsbad
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
Carlsbad, California 92008
3901
DOC# 2005-1038933
DEC 02, 2005 8:00 AM
OFFICIAL RE CORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G R E G 0 RY J. S MIT H, CO LI N T Y R E CO R D E R
FEES: 0.00
PAGES: 2 DA 1
2005-1038933
Title Order No.
A.P.N.
REQUEST FOR NOTICE
Space above this line for Recorder's use
Escrow No.:
In accordance with Civil Code, section 2924b, request is hereby made that a copy of any Notice of Default and a copy of any
Notice of Sale under the Deed of Trust recorded as Instrument No. L00$'~/o^^</^ on / //LL/o$ , in Book
A//^ Page t//A , of Official Records in the County Recorder's Office of San Diego County,
California, executed by YANNA YUNG AND JAVIER BENITEZ PAPILLA as Trustor in which City of Carlsbad, a
municipal corporation 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.
Dated: November 21, 2005
LISA HILDABRAND
ASSISTANT CITY MANAGER
STATE OF CALIFORNIA} ss COUNTY OF SAN DIEGO 1
On VApv\PjrrvVier oil
f
before me Q-rVr'\C\Q \_ C
Personally appeared
personally known to me (ef-pi y ovidonoo) to be the person(ywhose name(sYis/a»-subscribed to the within instrument
and acknowledged to me that he/she/they executed the same in hra/her/thw-authorized capacity(fe#, and that by Ws/her/tbeir signature^ on the instrument
the personte^or the entity upon behalf of which the person^acted, executed the instrument.
WITNESS my hand and official seal.
^
Signature
ASAForm#018
PATRICIA L. CRESCENTI
Commission f 1358062
Notary Public - California
S«n Dingo County
MyCornrn. BtpinMM«y24,2006
DOC# 2005-1019451
NORTH AMERICAN TITLE CO.
RECORDING REQUESTED PURSUANT
TO GOVERNMENT
CODE SECTION 27383 29559
RECORDING REQUESTED BY
City of Carlsbad
WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
Attn: City Clerk
1200 Carlsbad Village Drive
CARLSBAD. CALIFORNIA 92008
III!
NOV 23, 2005 4:56 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
G R E G 0 RY J. S MIT H, CO U N TY R E CO R D E R
FEES: 0.00 WAYS: 2
OC NA
RAGES: 28
(Space above for Recorder's Use)
IN)*
0-
RESALE RESTRICTION AGREEMENT,
AND OPTION TO PURCHASE
CITY OF CARLSBAD
HOMEBUYER PROGRAM - 2005
YANNA YUNG AND JAVIER BENITEZ PADILLA
Owner:
2673 LEIGHTON CIRCLE
Address of Home: CARLSBAD, CA 92009
This Resale Restriction Agreement and Option to Purchase (the "Agreement ") is entered
into as of this 11TH day of NOVEMBER 2005 , by and between the City of^ - '.' - . '" ' -"• — -— —•=.-=?. ri — . — — . •*Carlsbad (the "City") and YANNA YUNG AND JAVIER BENITEZ PADILLA
(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 TWO HUNDRED EIGHTEEN THOUSAND
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29560
FIVE HUNDRED AND 00/100 _ _ Dollars ($ 218,500.00 _ )
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 the 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 FOUR HUNDRED TWENTY THOUSAND
AND 00/100 _ Dollars (^20,000.00 ) (the "Purchase Price ").
D. The Owner is receiving a First Lender Loan in the amount of ONE HUNDRED NINETY
FOUR THOUSAND FIVE HUNDRED AND 00/100 _ Dollars ($194.500.00 ^ (the
"First Lender Loan ") from UNIVERSAL AMERICAN MORTGAGE COMPANY _ (the
"First Lender "). The First Lender Loan is secured by a deed of trust dated NOVEMBER llTH
, executed by the Owner 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 ").
E. The City/Seller Loan is evidenced by a promissory note in the amount of the Loan
(the "City Note "). This Agreement and the City Note shall be secured by a deed of trust (the
"City Deed of Trust ") subordinate to the lien of First Lender Deed of Trust.
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 Health and Safety Code Sections
33334.2 and 33334.3 and permits the City to meet the affordable housing production
requirements of Health and Safety Code Section 3341 3(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:
(1) "Agreement " - first sentence of the Agreement on page 1 .
** RECORDED CONCURRENTLY HEREWITH
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29561
(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) "City Option " - Section 12A.
(8) "City Response Notice " - Section 10.
(9) "Eligible Purchaser " Section 15B.
(10) "Extended Term " - 1OC.
(11) "Excess Sales Proceeds " - Section 16.
(12) "Fair Market Value " - Section 14B.
(13) "First 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 Term "-10B.
(19) "Market Purchaser " - Section 1 OC.
(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 15A.
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29562
(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 (i) the financial and other information previously provided in
order to qualify to purchase the Home is true and correct as of the date first written above, (ii) the
Owner is an Eligible Purchaser, and (iii) the Owner shall occupy the Home as the Owner's
principal place of residence.
3. OCCUPANCY AND LEASING OF HOME
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 pi ace of residence.
4. LEASING OF PROPERTY
The Owner shall not lease the Property to another party. Any lease of the Property in
violation of this Agreement is prohibited, and shall be a default under this Agreement and the
City Deed of Trust. The Owner further agrees that, in the event the Owner leases the Property to
a third party in violation of this section, any rents in excess of the 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
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29563
the Owner to the City, as evidenced by the Note, which the City may collect by legal action
against the Owner and/or by foreclosure under the City Deed of Trust.
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time homebuyer education class offered by
UNITED GUARANTY . .
6. MAINTENANCE AND INSURANCE PROCEEDS
A. The Owner shall maintain the Home, including landscaping, in good repair and in
a neat, clean and orderly condition and will not commit waste or permit deterioration of the
Home. Failure by the Owner to maintain the Home shall constitute a default under this
Agreement for which the City may exercise the City Option to purchase the Home pursuant to
Section 21 below.
B. The Owner shall maintain a standard fire and extended coverage Home insurance
policy equal to the replacement value of the Home (adjusted every five (5) years by appraisal, if
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 lien subordinate to the City
Deed of Trust or (vii) refinance of the First Mortgage meeting the requirements of Section 28 of
this Agreement; provided, however, that Owner shall provide written notice of all such transfers
to City pursuant to Section 8 below; and Owner shall continue to occupy the Home as his or her
principal place of residence (except where the transfer occurs pursuant to subsection (iii) or (iv)
above, in which event the transferee shall 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).
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29564
8. NOTICE OF INTENDED TRANSFER
A. In the event the Owner intends to transfer (including without limitation all
"Transfers " as defined in Section 7) or vacate the Property, the Owner shall promptly give the
City written notice of such intent (the "Owner's Notice of Intent to Transfer ") in the form shown
in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to
Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the
Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice
of Intent to Transfer shall be sent to the City in the manner and at the address provided in Section
33 of this Agreement. The Owner's Notice of Intent to Transfer shall include the information
necessary for the City to determine the Maximum Restricted Resale Price of the Property,
including the following information:
(1) the address of the Property;
(2) the date of purchase of the Property by the Owner;
(3) the purchase price of the Property 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 the City.
9. OWNER PREPARATION OF HOME FOR SALE
A. The Owner may not wish to contract with a real estate broker to sell the
Home until the Owner has received the City Response Notice pursuant to Section 10 below,
as the services of a broker will not be required if the City exercises the City Option to
purchase the Home pursuant to Section 12 below.
B. Following delivery to the City of the Owner's Notice of Intent to Transfer, the
Owner shall prepare the Home for sale, as follows:
(1) within thirty (30) days of delivery of the Owner's Notice of Intent to
Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of
the Home by a licensed structural pest control operator;
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29565
(2) within the sooner of (a) sixty (60) days from the date of delivery of the
Owner's Notice of Intent to Transfer, or (b) prior to close of escrow on the Transfer, the Owner
shall repair all damage noted in the pest report including damage caused by infestation or
infection by wood-destroying pests;
(3) within thirty (30) days of the date of the Owner's Notice of Intent to
Transfer, the Owner shall allow the City to inspect the Home to determine its physical condition;
(4) if the Home is vacant, the Owner shall maintain utility connections until
the close of escrow on the Transfer;
(5) in the event of purchase of the Property by the City or City Designated
Purchaser, the Owner shall permit a final walk-through of the Property by the City or City
Designated Purchaser, in the final three (3) days prior to close of escrow on the Transfer.
10. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER
City shall respond in writing (the "City Response Notice ") to the Owner's Notice of
Intent to Transfer. The City Response Notice shall inform the Owner of the City's election to
proceed under one (1) of the following two (2) alternatives:
A. City Exercise of City Purchase Option. The City Response Notice may notify the
Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase
the Home. The City Response Notice shall be sent within thirty (30) days of City receipt of
Owner's Notice of Intent to Transfer and shall include the City's calculation of the (i) Maximum
Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated
Purchaser and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below.
B. Initial Term: Owner Sale at a Restricted Sales Price to Eligible Purchaser.
Alternatively, the City Response Notice may notify the Owner that the City or a City Designated
Purchaser will not exercise the City Option to purchase the Home. In this case, if the Owner has
sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
Agreement (the "Initial Term "), the City Response Notice shall tell the Owner that the Owner
may proceed to sell the Home to an Eligible Purchaser at a price not to exceed the Maximum
Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set forth in
Section 14 below. In this event, the City Response Notice shall include the following
information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the
same income category as the Owner at the time of the Owner's purchase); (2) the certifications
required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may
receive for the Home, calculated by the City pursuant to Section 14 below; (4) whether
Homebuyer Program assistance from the City may be available to an Eligible Purchaser, (5)
Owner's repayment obligation as required by Section 13.
C. Extended Term Owner Sale to Market Purchaser. If the City Response Notice
notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option
to purchase the Home, and the Owner has sent the Notice of Intent to Transfer between the
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fifteenth (15th) 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
the City Response Notice notifies the Owner that the City or a City Designated Purchaser will
exercise the City Option to purchase the Home, the City or the City Designated Purchaser shall
purchase the Home within ninety (90) days of the date of the City Response Notice and title shall
be delivered by the Owner to the City by grant deed, free and clear of any mortgage or other
liens, unless approved in writing by the City.
B. The City may assign the City Option to another public agency, a nonprofit
corporation, or an Eligible Purchaser selected by the City (any of which shall be referred to
herein as a "City Designated Purchaser "). If the City assigns the City Option to a City
Designated Purchaser, the City Response Notice shall be executed by the City Designated
Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City
Option in lieu of the City.
C. In the event of exercise of the City Option and purchase of the Home by the City
or a City Designated Purchaser, the Owner shall permit a final walk-through of the Home by the
City or the City Designated Purchaser in the final three (3) days prior to close of escrow on the
Transfer.
D. The City acknowledges and agrees that the City Option shall only be exercised by
the City or a City Designated Purchaser for the purpose of retaining the Home as an affordable
housing unit and that the Home may only be resold by the City or a City Designated Purchaser as
an affordable housing unit in compliance with the Homebuyer Program and/or other City
affordable housing programs.
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29567
13. REPAYMENT OF CITY NOTE
Upon any Transfer of the Property, the outstanding principal and interest due under the
City Note shall be repaid pursuant to the City Note and shall not be credited against the purchase
price; provided, however, that upon City exercising the City Option to purchase the Home, the
outstanding amount of principal and Contingent Interest due under the City Note shall be paid to
the City in the form of a credit against the purchase price to be paid by the City to the Owner,
and/or, the City Note may be assumed by an Eligible Purchaser provided that the Eligible
Purchaser executes a new note (in the amount of the total principal and contingent interest that is
owed), deed of trust and resale restriction agreement in forms provided by the City. Repayment
of the City Note shall not affect Owner's obligation to comply with this Agreement, which shall
remain in full force and effect following any repayment of the Agency Note.
14. DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price (the "Maximum Restricted Resale Price ") that the Owner
shall receive from the resale of the Home or from the purchase of the Home by the City or City
Designated Purchaser or from other sale or Transfer by the Owner when the Owner sends the
Notice of Intent to Transfer during the Initial Term shall be the Restricted Future Sales Price or
the Fair Market Value, whichever is less.
A. Restricted Future Sales Price.
(1) The Restricted Future Sales Price of the Home means the restricted sales
price of the Home at the time of purchase by the Owner, as set forth in Recital E to this
Agreement, increased by the percentage of increase in the Median Income from the date of the
original purchase of the Home by the Owner to the date of receipt by the City of the Owner's
Notice of Intent to Transfer. "Median Income " shall refer to the median yearly income,
adjusted for a household size of four, in San Diego County, as published by the California
Department of Housing and Community Development ( "HCD "), or, in the event such income
determination is no longer published by HCD, or has not been updated for a period of at least
eighteen (18) months, the City may use or develop such other reasonable method as it may
choose in order to determine the median yearly income in San Diego County. As of the date of
Owner's purchase of the Property, the Median Income for a household of four persons is sixty-
nine thousand dollars ($69.000).
(2) The Restricted Future Sales Price shall include a downward adjustment,
where applicable, in an amount necessary to repair any violations of applicable building,
plumbing, electric, fire or housing codes or any other provisions of the City of Carlsbad Building
Code, as well as any other repairs needed to put the Home into a "sellable condition ". Items
necessary to put a Home into sellable condition shall be determined by the City, and may include
cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed
appliance repairs and other deferred maintenance repairs.
B. Fair Market Value. In certain circumstances it may be necessary to determine the
fair market value of the Property without taking account of the resale restrictions imposed by this
Agreement (the "Fair Market Value "). These circumstances include: (1) where the parties wish
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29568
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 City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting
future resale of the Home and shall agree to cooperate fully with the City in promptly providing
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29569
all information requested by the City to assist the City in monitoring the Proposed Purchaser's
compliance with the resale restriction agreement.
C. Maximum Restricted Resale Price. The purchase price for the sale of the Home
by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set forth in the City Response Notice.
The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego .
D. Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1) The name, address and telephone number in writing of the Proposed
Purchaser.
(2) A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other supporting documentation requested by the City. The
financial information shall be used by the City to determine the income eligibility of the
Proposed Purchaser.
(3) The proposed sales contract and all other related documents which shall
set forth all the terms of the sale of the Home. Said documents shall include at least the
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for
the Owner's personal property, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
(4) A written certification, from the Owner and the Proposed Purchaser in a
form acceptable to the City that the sale shall be closed in accordance with the terms of the sales
contract and other documents submitted to and approved by the City. The certification shall also
provide that the Proposed Purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract and documents submitted to the City. The written certification shall
also include a provision that in the event a Transfer is made in violation of the terms of this
Agreement or false or misleading statements are made in any documents or certification
submitted to the City, the City shall have the right to foreclose on the Home or file an action at
law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred
by the Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and
legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold
the City harmless and reimburse the City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5) An executed resale agreement and deed of trust to the City from the
Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is receiving
assistance from the Homebuyer Program, a promissory note to the City shall also be required.
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29570
The recordation of the new deed of trust and buyer's resale agreement shall be a condition of the
City's approval of the proposed sale.
(6) The name of the title company escrow holder for the sale of the Home, the
escrow number, and name, address, and phone number of the escrow officer.
(7) Upon the close of the proposed sale, certified copies of the recorded City
deed of trust and buyer's resale agreement, a copy of the final sales contract, settlement
statement, escrow instructions, and any other documents which the City may reasonably request.
16. PAYMENT TO CITY OF EXCESS SALES PROCEEDS
If the Owner makes a Transfer in violation of this Agreement at any time during the
Initial Term or Extended Term, the Owner shall pay the Excess Sales Proceeds to the City. For
purposes of this Agreement, "Excess Sales Proceeds " shall mean ninety-four percent (94%) of
the amount by which the gross sales proceeds received by the Owner from the new purchaser
exceed the Maximum Restricted Resale Price for the Home (in the amount that was stated in the
City Response Notice). This amount shall be a debt of the Owner to the City, further evidenced
by the City Note, and secured by the City Deed of Trust. The Owner acknowledges that the City
shall have no obligation to cause reconveyance of this Agreement or of the City Deed of Trust
until the Excess Sales Proceeds are paid to the City. The City shall utilize the Excess Sales
Proceeds for City affordable housing programs. The Owner and the City acknowledge that the
formula for calculation of the amount of Excess Sales Proceeds due from the Owner to the City
is intended to cause the Owner to receive the same net sales proceeds (following payment by
Owner of a standard broker's commission) from sale of the Home at an unrestricted price to a
market purchaser (in violation of this Agreement) as the Owner would receive from sale of the
Home to the City, City Designated Purchaser or to an Eligible Purchaser at the Maximum
Restricted Resale Price.
17. SALE OF 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 least fifteen (15) days
prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a written
declaration, under penalty of perjury, from the Owner and the proposed purchaser in a form
acceptable to the City stating the gross sales price of the Home. The certification shall also
provide that the proposed purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the proposed purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract. At close of escrow, Owner shall submit to the City a copy of the
HUD-1 Settlement Statement showing the purchase price paid for the Home.
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29571
18. DEFAULTS
A. The following events shall constitute a Default by the Owner under this
Agreement:
(1) The City determines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Home or in connection with its obligations under this
Agreement;
(2) The Owner fails to owner occupy the home as his or her principal place of
residence, as required pursuant to Section 3 above, and such failure continues following written
notice by the City and sixty (60) days opportunity to cure following the date of such notice.
(3) The Owner rents the Home in violation of Section 4 above, and such
failure continues following written notice by the City and sixty (60) days opportunity to cure.
(4) The Owner fails to provide information to the City necessary to determine
Owner's compliance with the requirements of this Agreement.
(5) The Owner makes a Transfer in violation of this Agreement;
(6) The Owner otherwise fails to comply with the requirements of this
Agreement and such violation is not corrected to the satisfaction of the City within ten (10) days
after the date of written notice by the City to the Owner of such violation; or
(7) A notice of default is issued under First Lender Loan or other financing
secured by the Home.
(8) A lien is recorded against the Home other than the lien of a bona fide
mortgage loan.
(9) Owner places a mortgage on the Home in violation of Section 28 below.
(10) Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the
following:
(1) Declare all Excess Sales Proceeds immediately due and payable without
further demand, accelerate payments due under the City Note and invoke the power of sale under
the City Deed of Trust;
(2) Apply to a court of competent jurisdiction for such relief at law or in
equity as may be appropriate;
]3 Revised: 3/2/2005
29572
(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 the City within a reasonable period of time, not longer than thirty
(30) days after the date the notice is mailed, or within such further time as the City determines is
necessary to correct the violation, or if the Owner is in default under any other mortgage loan on
the Home, the City may declare a default under this Agreement.
The City shall notify First Lender at the address provided by the First Lender to the City
in the manner set forth in Section 33 of this Agreement, if the City has declared a default under
this Agreement or under the City Note or City Deed of Trust.
20. NOTICE TO CITY OF DEFAULT
A request for notice of default and any notice of sale under any deed of trust or mortgage
with power of sale encumbering the Home shall be recorded by the City in the Office of the
Recorder of the County of San Diego for the benefit of the City. The request for notice shall
include a statement that 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 in the default provisions of the underlying deed of trust or mortgage.
If the City failed to file the request for notice of default, the City's right to purchase the
Home shall commence from the date a notice of default is given by the City to the Owner.
21. PURCHASE OPTION UPON DEFAULT
A. Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Option provided in Section 12, the Owner hereby grants to the
City or the City Designated Purchaser the option to purchase the Home effective upon the
declaration of a default by the City pursuant to Section 18 and Section 19 above, and subject to
J4 Revised: 3/2/2005
29573
notice and cure rights set forth in Section 19. Said option to purchase is given in consideration
of the economic benefits received by the Owner resulting from ownership of the Home made
possible by the financial assistance of the City in the purchase of the Home,
B. Exercise of Option. The option to purchase may be exercised upon a default
under this Agreement or upon default under any promissory note, deed of trust or any other lien,
including a judgment lien, recorded against the Home. The City shall have thirty (30) days after
a default is declared to notify the Owner and the First Lender of its decision to exercise its option
to purchase. Not later than ninety (90) days after the notice is given by the City to the Owner of
the City's intent to exercise its option, or prior to the date of the foreclosure sale should that be
sooner than the expiration of the 90 days, the 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 the
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.Affordable 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 the Home may only be
resold by the City or a City Designated Purchaser as an affordable housing unit in compliance
with the Homebuyer Program and/or other City affordable housing programs.
22. NONLIABILITY OF THE CITY
A. No Obligation to Exercise Option. The City shall have no obligation to exercise
any option granted it under this Agreement. In no event shall the City become in any way liable
or obligated to the Owner or any successor-in-interest to the Owner by reason of its option to
purchase under Sections 12 and 21 nor shall the City be in any way obligated or liable to the
Owner or any successor-in-interest to the Owner for any failure to exercise its option to
purchase.
B. Nonliability for Negligence. Loss, or Damage. Owner acknowledges,
understands and agrees that the relationship between Owner and the City is solely that of 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
] 5 Revised: 3/2/2005
29574
resulting from any condition of the Property and will hold the City harmless from any liability,
loss or damage for these things.
C. Indemnity. Owner agrees to defend, indemnify, and hold the City harmless from
all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees
that the City may incur as a direct or indirect consequence of: (1) Owner's default, performance,
or failure to perform any obligations as and when required by this Agreement or the Deed of
Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and
correct.
23. RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Home through a deed in lieu of foreclosure, a trustee's
deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent
that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited
to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder
of such excess proceeds to pay such proceeds (in addition to other amounts due the City pursuant
to the City Note and this Agreement) to the City in consideration of the benefits received by the
Owner through purchase of the Home under this Agreement.
24. RESTRICTION ON INSURANCE PROCEEDS
If the Home is damaged or destroyed and the Owner elects not to rebuild or repair the
Home, the Owner shall pay the City the portion of any insurance proceeds received by the
Owner (subject to the rights of the First Lender) for such destruction or damage which is in
excess of the Maximum Restricted Resale Price calculated pursuant to Section 14 above.
25. TERM OF AGREEMENT
All the provisions of this Agreement, including the benefits and burdens, run with the
land and the Home and this Agreement shall bind, and the benefit hereof shall inure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors until the earlier of (i) thirty (30) years from the date of recordation of
this Agreement or (ii) the date of Transfer of the Property to the City or another purchaser in
compliance with this Agreement (including execution by the purchaser of a new resale restriction
agreement for the benefit of the City).
26. SUPERIORITY OF AGREEMENT
The Owner covenants that he or she has not, and will not, execute any other agreement
with provisions contradictory to or in opposition to the provisions of this Agreement hereof, and
that, in any event, this Agreement is controlling as to the rights and obligations between and
among the Owner, the City and their respective successors.
16 Revised: 3/2/2005
29575
27. SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of the First Lender Loan and shall not impair the rights of the First
Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender
Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such
remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a
deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Agreement shall be forever terminated and shall have no
further effect as to the Home or any transferee thereafter; provided, however, if the holder of
such First Lender Deed of Trust acquired title to the Home pursuant to a deed or assignment in
lieu of foreclosure, this Agreement shall automatically terminate upon such acquisition of title,
provided that (i) the City has been given written notice of default under such First Lender Deed
of Trust and (ii) the City shall not have cured or commenced to cure the default within such
thirty (30)-day period and given its firm commitment to complete the cure in the form and
substance acceptable to the First Lender. Owner agrees to record any necessary documents to
effect such termination, if applicable.
28. REFINANCE OF FIRST LENDER LOAN
The outstanding principal on the City Note shall not be due upon prepayment and
refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be
subordinated to the refinanced First Lender Loan, provided that (i) such refinancing is approved
by the City, (ii) the amount refinanced does not exceed the outstanding principal balance of the
First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance
does not result in higher monthly payments on the First Lender Loan than were due prior to the
refinance. Mortgage loans or equity lines of credit junior in lien priority to the City deed of trust
are not permitted. The City and the Owner agree that the requirements of this section are
necessary to ensure the continued affordability of the Property to Owner and to minimize the risk
of loss of the Property by Owner through default and foreclosure of mortgage loans. Owner
further acknowledges that violation of the provisions of this section shall constitute a Default
under this Agreement. A form for use by the Owner in requesting City subordination to a
refinanced First Lender Loan is attached hereto as Exhibit E.
29. NONDISCRIMINATION
The Owner covenants by and for itself and its successors and assigns that there shall be
no discrimination against or segregation of a person or of a group of persons on account of race,
color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Home, nor shall the
Owner or any person claiming under or through the Owner establish or permit any such practice
or practices of discrimination or segregation with reference to the use, occupancy, or transfer of
the Home. The foregoing covenant shall run with the land.
30. RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
17 Revised: 3/2/2005
29576
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement
shall not diminish or affect the rights of the California Housing Finance Agency ( "CHFA "), the
United States Department of Housing and Urban Development ( "HUD "), the Federal National
Mortgage Association ( "FNMA "), or the Veterans Administration ( "VA ") under the First
Lender Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against
the Home in compliance with Section 28 above.
31. HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Home, and (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief, or (ii) the Owner is
undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment
(TMAP) program.
32. INVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
33. NOTICES
All notices required herein shall be sent by certified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on he delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or the date
Notice was returned as undeliverable as follows:
To the Owner: YANNA YUNG AND JAVIER BENITEZ PADILLA
At the address of the Home. .
2673 LEIGHTON CIRCLE
To the City: CARLSBAD, CA 92009
City of Carlsbad
Housing and Redevelopment Department
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
Attn: Homebuyer Program
18 Revised: 3/2/2005
29577
To the First Lender: UNIVERSAL AMERICAN MORTGAGE COMPANY
311 PARK PLACE BLVD., SUITE 500
CLEARWATER, FL 33759
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
34. INTERPRETATION OF AGREEMENT
The terms of this Agreement shall be interpreted so as to avoid speculation on the Home
and to insure to the extent possible that the mortgage payments remain affordable to low and
moderate income households.
35. CONTROLLING LAW
The terms of this Agreement shall be interpreted under the laws of the State of California.
*****
36. EXHIBITS
Any exhibits referred to in this Agreement are incorporated in this Agreement by such
reference.
IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date
first written above.
CITY:
City of Carlsbad, a municipal corporation
a municipal corporation
Name: LISA HILDABRAND
Title: ASSISTANT CITY MANAGER
OWNER:
YANNA YUNG
Print Name
19 Revised: 3/2/2005
29578
STATE OF CALIFORNIA )
)ss.
COUNTY OF SAN DIEGO )
On
appeared
200 5 before meA/A o personally
,rperBonalr
jtnown to me -(pj. 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 be/she/they
executed the same in bisflier/their authorized capacity(ies), and that by htsflrer/their signature(s)
on the instrument the person(s) or the entity upon behalf of which the person(s) acted, executed
the instrument.
WI official seal.
DAVID T. HUMMERICH
Commission* 1397103
Notary Public - California
San Diego County
My Comm. Expires Feb 27,2007
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN DIEGO )
On
appeared L
J 200\5, before me,
Mi T personally
_, personally
known to me (01 piovcd ta in&on the baaia of satiafactory evidence) to be the person(^whose
name(^jt is/a?e subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/the» authorized capacity(ips(^ and that by his/her/their signaturej^
on the instrument the person^Tor the entity upon behalf of which the personf^acted, executed
the instrument.
WITNESS my hand and official seal.
1010\15\172081.3
ORDER NO. 7303963-24 « ~ .. _29579
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 3 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 3 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. 63, 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 4
ORDER NO. 7303963-24 295&0
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 5
29581
EXHIBIT B
Form of Owner Occupancy Certification
To: City of Carlsbad ( "City ")
From:
Address of Home:
Date:
[name of owner(s)J ( "Owner(s) ")
( "Property ")
By signature below, I.[insert name or names of Owner] hereby
certify to the City under penalty of perjury that I/we occupy the home located at
' [insert address] (the "Home ") as my/our
principal place of residence and that I/we have occupied the Home for ( )
[insert number] months of the calendar year [insert previous calendar year].
Attached to this letter is a copy of [insert utility bill or driver's license] showing
my place of residence.
This Owner Occupancy Certification is signed on.
perjury.
20 , under penalty of
Due Date:. of each calendar year.
By:_
By:_
Owner [type name]
Owner [type name]
Attach copy of utility bill or driver's license showing address of Home.
1010M5VI72084.3 B-l
12/10/03
29582
EXHIBIT C
Form of Owner's Notice of Intent to Transfer
To: City of Carlsbad ( "City ")
From: [name of owner(s)] ( "Owner(s) ")
Address of Home: ("Property")
Date:
Please be notified pursuant to Section 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 City to contact to schedule inspection:
and
(name) (phone number)
B. As required by Section 8 of the Resale Agreement, the following the HUD-1 Settlement
Statement from Owner's purchase of the property is attached.
C. I have not yet listed the Property for sale with a multiple listing service, or contacted a
real estate broker or financial institution. I agree to prepare the Property for sale by:
1. obtaining a pest control report within thirty (30) days of the date of this notice,
2. repairing all damage noted in the pest report within the sooner of: (i) sixty (60)
days from the date of this notice, or (ii) two (2) weeks prior to close of escrow or the transfer of
the Property,
1010\15\172084.3 C-l
12/10/03
29583
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
101DM5Y172084.3 C-2
12/10/03
29584
EXHIBIT D
Form of Owner Acknowledgement of City Response Notice
Name:
Address of Property:
Date:
I, [insert name] hereby acknowledge that I received the City
Response Notice (as described in Section 10 of the Resale Agreement on [insert
date).
By:
1010VI5Y172084.3 D-l
12/10/03
29585
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 perjury on [insert date).
By:_
Owner
By:
Owner
10NA15V172084.3 E-l
12/10/03
29586
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: November 22,2005
North American Title Company
3902
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: November 22, 2005
North American Title Company