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HomeMy WebLinkAbout1999-08-03; City Council; 15075; Calavera Hills Village L-1RECOMMENDED ACTION: That the City Council ADOPT Resolution No. 59 - ?f as recommended by the Housing Commission, APPROVING a request to provide $75,000 in financial assistance from the Housing Trust Fund to Heritage-Cliffs, LLC., and approving and authorizing the City Manager to execute the related loan documents for the construction of five, for-sale, affordable four bedroom single family detached units in order to satisfy the lnclusionary Housing Ordinance requirements for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. ITEM EXPLANATION The Calavera Hills Village L-l project is located on the northwest corner of Harwich Drive and future Edgeware Way in the Calavera Hills Master Plan. The proposed project will provide a total of 35 single family detached housing units. The affordable project consists of five (5) single family detached units which will be distributed throughout the project and will be developed concurrently with the market rate units. Each affordable unit will contain 1,330 square feet of living space, 4 bedrooms and a two-car garage. The units will be restricted and affordable to households with incomes not exceeding 80% of the area median. On September 11, 1997, the Housing Commission recommended approval of the site development plan for the five affordable units to the Planning Commission. On November 5, 1997, the Planning Commission approved the Village L-l project. On February 12, 1998, the Housing Commission recommended approval of the applicant’s request for financial assistance for the project. The request for financial assistance is now being forwarded to the City Council for approval and authorization to execute the appropriate documents. FINANCIAL ASSISTANCE FOR THE AFFORDABLE HOUSING PROJECT Developer, as well as City assistance, has been structured in a form which is first used for project construction and then for deferred financing for the actual homebuyer. This subsidy financing is structured as a loan which is repaid to the City upon resale of the unit. Any real appreciation is shared between the City and the homebuyer based on the contribution to the initial purchase. Proiect Aareements In order for the project to receive the $75,000 loan, the Developer is required to enter into loan and regulatory agreements with the City of Carlsbad. These agreements and related documents are attached for review as Exhibit 2. As one of the actions set forth within this report, the City Council is being asked to approve, in substantially the form presented, the Loan Agreement, Developer Deed of Trust and Security Agreement, Developer Promissory Note, Borrower Promissory Note, Borrower Deed of Trust and Security Agreement and Borrower Disclosure Statement. These documents are explained below. Page 2 l Loan Agreement - this agreement outlines the terms of the loan to be provided by the City of Carlsbad to Heritage-Cliffs, LLC., during construction of the Village L-l Affordable Housing Project. The maximum amount of the loan to the Developer shall be $75,000. As each individual home is sold, the developer will be credited with repayment of $15,000 of the City Loan. The loan will then be recorded against the individual property and be recaptured when the home is sold. l Developer Promissory Note - this document is an instrument of implementation related to the Loan Agreement described above. It is a “promise to pay” the City for the total amount of the construction loan advanced to Heritage-Cliffs, LLC for the subject project. The note is secured by a Deed of Trust. l Developer Deed of Trust and Security Agreement - this document outlines the security for the construction loan to be made by the City of Carlsbad to Heritage-Cliffs, LLC. The security provided for the loan includes: 1) the owner’s fee interest in the property, 2) interest in all easement, right-of-ways, and other rights used for access purposes, 3) all buildings and improvements of every kind and description on the property, 4) interest in all building materials and equipment on property, and 5) interest in all personal property or fixtures on the property. l Borrower Promissory Note- this document offers the same security for the borrower’s (home) loan as outlined above for the City’s Developer Loan Agreement. In this agreement, the borrower is promising to repay the seller carryback loan which includes the original City Loan of $15,000, all developer subsidy, and any contingent interest upon sale or transfer of the property. l Borrower Deed of Trust and Security Agreement - this document outlines the security for the loan between the City of Carlsbad and the individual property owner. The security provided for the loan includes: 1) the owner’s interest in the property, 2) all buildings and improvements of every kind and description on the property, and 3) interest in all personal property or fixtures on the property. l Borrower Disclosure Statement - this document explains the major provisions of the Promissory Note and Deed of Trust to help the borrower better understand the terms and conditions of said documents. HOUSING COMMISSION/STAFF RECOMMENDATION At their meeting on February 12, 1998, the Housing Commission reviewed the request from Heritage- Cliffs, LLC., for financial assistance related to the subject affordable housing project. The Commission also reviewed the draft financial assistance agreements/documents. The Commission recommended by a vote of 5-l (Calverly - No), that the City Council approve the loan in the amount of $75,000 from the Housing Trust Fund and related loan and regulatory documents. SUBORDINATION OF CITY AGREEMENTS It is important to note that by approving the subject agreements, the Council is also agreeing to subordinate the City’s loans and agreements to the lien of deeds of trust securing the Construction and Permanent Financing provided by a private lender. The lenders will require that the City subordinate its loan and agreements to those of the Bank. As with similar previous projects, staff will ensure that the Bank provide commitments reasonably designed to protect the City’s investment in the event of default. These protections include a notice of default to the City and a right of the City to cure the default. AB# 15;l’37’j Page 3 ENVIRONMENTAL REVIEW A Statement of Previous Environmental Compliance was adopted by the Planning Commission in their approval of the project in July of 1997. No further environmental review is required as part of the approval of the financial assistance. FISCAL IMPACT: The financial assistance will be provided from the City of Carlsbad’s Housing Trust Fund. The Trust Fund has a current undesignated fund balance of approximately $5.1 million. The $75,000 loan will be in the form of a silent second trust deed loan and will be repaid, along with the Developers subsidy and shared appreciation, upon sale or transfer of each individual property. EXHIBITS: I. City Council Resolution No. 99 - 3-5, approving financial assistance for the Calavera Hills Village L- 1 Project and authorizing City Manager to execute appropriate documents. 2. Loan Agreement, Developer Promissory Note, Developer Deed of Trust and Security Agreement, Borrower Promissory Note, Borrower Deed of Trust and Security Agreement, and Borrower Disclosure Statement. 3. Development Proforma for the Calavera Hills Village L-l Project. 4. Housing Commission Staff Report dated February 12, 1998. 5. Housing Commission Minutes dated February 12, 1998 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CITY COUNCIL RESOLUTION NO. gg- 7 5 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, TO PROVIDE $75,000 IN FINANCIAL ASSISTANCE FROM THE HOUSING TRUST FUND TO HERITAGE-CLIFFS, LLC., BUILDERS, INC., AND APPROVING THE RELATED LOAN DOCUMENTS FOR THE CONSTRUCTION OF FIVE, FOR-SALE, AFFORDABLE FOUR BEDROOM SINGLE FAMILY DETACHED UNITS IN ORDER TO SATISFY THE REQUIREMENTS OF THE INCLUSIONARY HOUSING ORDINANCE FOR THE DEVELOPMENT OF 35 RESIDENTIAL UNITS IN VILLAGE L-l OF THE CALAVERA HILLS DEVELOPMENT. APPLICANT: HERITAGE-CLIFFS, LLC. CASE NO: CT 97-04, SDP 97-03 WHEREAS, the City of Carlsbad has identified a need to provide housing which is affordable to low income households in a variety of different forms; and WHEREAS, a project known as “Calavera Hills, Village L-l” has been approved for construction which will provide five (5) for-sale, four bedroom, single family detached housing units on property generally located on the northwest corner of Harwich Drive and future Edgeware Way in the Calavera Hills Master Plan which will provide housing affordable to low income households; and WHEREAS, the affordability level and the unit mix of the proposed project are consistent with the City of Carlsbad’s Housing Element objectives, Consolidated Plan, and Inclusionary Housing Ordinance; and WHEREAS, on February 12, 1998 the City of Carlsbad Housing Commission held a public meeting and recommended that, based upon the financial analysis of the project, City financial participation in the project is necessary, appropriate and exceeded by the public benefit received by the City; and WHEREAS, the City Council did hold a public meeting to consider a request to approve loan documents for City financial assistance for the construction of said five (5) for-sale, four bedroom, single family detached housing units affordable to low income households and; WHEREAS, at said public meeting, upon hearing and considering all testimony, if any, of all persons designing to be heard, said Council considered all factors relating to said request: 1 2 3 4 5 6 .7 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - CC Reso. 99-75 Page 2 NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. 2. 3. 4. 5. The above recitations are true and correct. The request for City financial assistance has been determined to be consistent with the goals and objectives of the City of Carlsbad’s Housing Element and Consolidated Plan, the Inclusionary Housing Ordinance, and the Carlsbad Genera1 Plan. The request for City financial assistance will assist the affordable housing developer to construct a total of five (5) for-sale, four bedroom, single family detached housing units. The project, therefore, has the ability to effectively serve the City’s housing needs and priorities as expressed in the Housing Element and the Consolidated Plan. That based on the information provided within the City Council Staff Report and the testimony presented during the public meeting of the City Council, the City Council hereby APPROVES the Loan Agreement, Developer Promissory Note, Developer Deed of Trust and Security Agreement, Borrower Promissory Note, Borrower Deed of Trust and Security Agreement, and Borrower Disclosure Statement between the City of Carlsbad and Heritage-Cliffs, LLC., in the amount of $75,000 to assist the construction of five (5) for-sale, four bedroom, single family detached housing units affordable to low income households. That the City Council authorizes the City Manager or his designee to execute all documents related to provision of the City assistance, including but not limited to a Loan Agreement, Developer Promissory Note, Developer Deed of Trust and Security Agreement, Borrower Promissory Note, Borrower Deed of Trust and Security Agreement, and Borrower Disclosure Statement, in substantially the form presented to the City Council and subject to review and approval by the City Attorney. PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 3rd day of August , 1999 by the following vote, to wit: AYES:Council Members Lewis, Nygaard, Finnila, Hall & Kulchin NOES: None ABSENT: None ABSTAIN: None ATTEST: ALETHA L. RAUTENKRANZ, CITY CLERK 1 zxhibit 2 LOAN AGREEMENT BY AND BETWEEN THE CITY OF CARLSBAD and HERITAGE-CLIFFS, LLC 6 TABLE OF CONTENTS ARTICLE 1. DEFINITIONS AND EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 1.2 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ARTICLE 2. LOAN PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 2.1 Section 2.2 Section 2.3 Section 2.4 Section 2.5 Section 2.6 Section 2.7 Section 2.8 Section 2.9 Section 2.10 Loan. ........................................................................................................... .4 Interest ......................................................................................................... .4 Use of Loan Funds ....................................................................................... 4 Security. ...................................................................................................... .5 Disbursement of Loan Proceeds . ................................................................. 5 Intercreditor Agreement ............................................................................... 6 Subordination ............................................................................................... 6 Term and Repayment Schedule ................................................................... 6 Assumption. ................................................................................................ .7 Approval of Additional Financing. ............................................................. .7 ARTICLE 3. CONSTRUCTION OF THE DEVELOPMENT ..................................................... 8 Section 3.1 Schedule of Performance ............................................................................. 8 Section 3.2 Construction Pursuant to Plans and Laws .................................................... 8 Section 3.3 Equal Opportunity.. ...................................................................................... . Section 3.4 Mechanics Liens, Stop Notices, and Notices of Completion.. .................... .8 ARTICLE 4. REQUIREMENTS DURING AND AFTER CONSTRUCTION.. ........................ .9 Section 4.1 Information. ................................................................................................ .9 Section 4.2 Records . ....................................................................................................... 9 Section 4.3 Inspections . .................................................................................................. 9 Section 4.4 Insurance. ................................................................................................... 10 7 TABLE OF CONTENTS (continued) Page Section 4.5 Hazardous Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Section 4.6 Fees and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Section 4.7 Nondiscrimination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Section 4.8 Notice of Litigation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , .13 Section 4.9 Transfers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .,. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Section 4.10 Sale of Units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 ARTICLE 5. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..f... 14 Section 5.2 Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Section 5.3 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Section 5.4 Waiver of Terms and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ARTICLE 6. REPRESENTATIONS AND WARRANTIES OF DEVELOPER . . . . . . . . . . . . . . . . . . . . . . . 17 Section 6.1 Representations and Warranties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE 7. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 7.1 Section 7.2 Section 7.3 Section 7.4 Section 7.5 Section 7.6 Section 7.7 Section 7.8 Section 7.9 Section 7.10 Relationship of Parties s .............................................................................. 18 No Claims . ................................................................................................. 19 Amendments. ............................................................................................ .19 Indemnification. ........................................................................................ .19 Non-Liability of City Offkials, Employees and Agents . .......................... 19 No Third Party Beneficiaries. ................................................................... .19 Discretion Retained By City . ..................................................................... 19 Notices, Demands and Communications ................................................... 19 Applicable Law. ........................................................................................ .20 Parties Bound; Covenants Running with the Land. .................................. .20 TABLE OF CONTENTS (continued) Section 7.11 Attorneys’ Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.12 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..f.......................... 20 Section 7.13 Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.14 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Section 7.15 Title of Parts and Sections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 7.16 Entire Understanding of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2 1 Section 7.17 Multiple Originals; Counterpart. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Section 7.18 Time of the Essence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 9 LOAN AGREEMENT This Loan Agreement (the “Agreement”) is entered into as of ,1999, by and between the City of Carlsbad, a municipal corporation (the “City”), and Heritage-Cliffs, LLC, a limited liability company (the “Developer”), with reference to the following facts: A. The Developer is the owner of certain real property in the City of Carlsbad, in the County of San Diego, California described in Exhibit A attached hereto and incorporated herein (the “Affordable Development Property”). B. The Developer received approval from the City to construct 35 residential housing units in the City, in a development known as The Cliffs at Calvera Hills (the “Development”). In satisfaction of certain conditions of approval in connection with the City’s approvals of the Development, the City and the Developer executed an Affordable Housing Agreement Imposing Restrictions on Real Property dated as of (the ” Affordable Housing Agreement”). C. Pursuant to the Affordable Housing Agreement, the Developer agreed to sell 5 of the housing units in the Development at affordable housing cost to lower income households (the “Affordable Units”). The Developer further agreed to carry back second mortgage financing on the Affordable Units in an amount equal to the difference between the market rate purchase price of the Affordable Unit and the affordable price of such unit, and to assign such second mortgage financing to the City. D. The City agreed to provide financial assistance to the Developer for the Affordable Units in the form of a $75,000 construction loan (the “City Loan”), which represents a direct City subsidy amount of $15,000 per Affordable Unit. As more fully set forth herein, upon sale of each Affordable Unit to an eligible lower income household in compliance with the Affordable Housing Agreement, and execution of second mortgage loan documents by the homebuyer to the City in compliance with the Affordable Housing Agreement, the City will credit the Developer with repayment of $15,000 of the City Loan. E. The City intends to fund the City Loan with moneys from the City’s Housing Trust Fund created pursuant to City Ordinance No. NS-232. NOW, THEREFORE, the Parties agree as follows: ARTICLE 1. Definitions and Exhibits 1.1 Definitions. The following capitalized terms shall have the following meanings in this Agreement; (9 “Affordable Development” shall mean the Affordable Development Property, the Affordable Units, and all landscaping, roads, parking spaces, and common area appurtenant to such units. Heritage-Cliffs Loan Agr (b) “Affordable Development Property” shall mean the property described in Exhibit A on which the Affordable Development will be constructed. (4 “Affordable Housing Agreement” shall mean the Affordable Housing Agreement Imposing Restrictions on Real Property by and between the City and the Developer dated 19 and recorded against the Property as Document No. the Official Record; of S&r Diego County. in (d> “Affordable Unit” shall mean a Unit sold to an Eligible Purchaser in compliance with the Affordable Housing Agreement. 6) “Agreement” shall mean this Loan Agreement. “Bank” shall mean the maker of the Bank Loan. (g) “Bank Loan” shall mean the construction loan obtained by the Developer from a private institutional lender, to pay for costs of construction of the Affordable Units not paid from the City Loan. @I “Borrower Disclosure Statement” shall mean the borrower disclosure statement to be signed by Eligible Buyers purchasing Units. (0 “City” shall mean the City of Carlsbad, a municipal corporation. 0’) “City Loan” shall mean the loan for the amount of Seventy Five Thousand Dollars ($75,000) by the City to the Developer pursuant to this Agreement. 09 “City/Homebuyer Second Mortgage Loan” shall mean the carryback financing provided by the Developer to Eligible purchasers and assigned by the Developer to the City. Each City/Homebuyer Second Mortgage Loan shall be evidenced by an Eligible Buyer Note and secured by an Eligible Buyer Deed of Trust. (1) “Default” shall have the meaning set forth in Section 5.1 below. cm> “Developer Deed of Trust” shall mean the deed of trust to be placed on the Affordable Development Property, in substantially the form shown in the attached Exhibit C, securing the Developer Note and naming the City as beneficiary. 09 “Developer Note” shall mean the promissory note, in substantially the form shown in the attached Exhibit B, in the principal amount of Seventy Five Thousand Dollars ($75,000), evidencing the City Loan. (0) “Direct City Subsidy Amount” shall mean the $15,000 increment of the City Loan attributable to each Affordable Unit. CP) Affordable Unit. “Eligible Buyer” shall mean a Lower Income Household purchasing an Heritage-Cliffs Loan Agr. 2 (9) “Eligible Buyer Deed of Trust” shall mean the deed of trust held by the City to secure payment of an Eligible Buyer Note executed and delivered to the City by the Eligible Buyer of an Affordable Unit, in the form attached hereto as Exhibit E. 6) “Eligible Buyer Note” shall mean the promissory note, in the form attached hereto as Exhibit D, executed and delivered to the City by an Eligible Buyer of a Affordable Unit. below. (4 “Hazardous Materials” shall have the meaning set forth in Section 4.5 4.5 below. (9 “Hazardous Materials Claim” shall have the meaning set forth in Section below. 00 “Hazardous Materials Law” shall have the meaning set forth in Section 4.5 (9 “Intercreditor Agreement” shall mean the Intercreditor Agreement to be entered into by and among the City, the Bank, and the Developer pursuant to Section 2.6 of this Agreement. w “Loan Documents” shall mean the following documents: (i) the Developer Note; (ii) the Developer Deed of Trust; (iii) the Affordable Housing Agreement and (iv) this Agreement. (9 “Lower Income Household” shall mean a household with an annual income, adjusted for actual household size, that is no greater than eighty percent (80%) of Median Income. (Y) “Median Income” shall mean the median gross yearly income for households in San Diego County, California, as adjusted for household size, as published periodically by the United States Department of Housing and Urban Development (“HUD”). In the event such income determinations are no longer published by HUD, or are not updated for a period of at least eighteen (18) months, the City shall provide the Developer with other income determinations which are reasonably similar with respect to method of calculation to those previously published by HUD. (z) “Parties” shall mean the City and the Developer. (aa) “Primary Affordability Subsidy” shall have the meaning set forth in Section 2.3.2 of the Affordable Housing Agreement. NO “Property” shall mean the property on which the Developer shall construct the Improvements, as more particularly described in the attached Exhibit A. (cc) “Schedule of Performance” shall mean the schedule of performance set forth in Section 2.2 of the Affordable Housing Agreement. Heritage-Cliffs Loan Agr. 3 (W “Term” shall mean the thirty-six (36) month term of the Loan, commencing on the date of recordation of the Deed of Trust and continuing for thirty-six (36) months thereafter. (eel “Transfer” shall have the meaning set forth in Section 4.9 below. (f-f) “Unit” shall mean a housing unit located within the Affordable Development. Section 1.2 Exhibits. The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference: EXHIBIT A: Legal Description of the Affordable Development Property EXHIBIT B: Form of the Developer Note EXHIBIT C: Form of the Developer Deed of Trust EXHIBIT D: Form of Eligible Buyer Note EXHIBIT E: Form of Eligible Buyer Deed of Trust EXHIBIT F: Form of Borrower Disclosure Statement EXHIBIT G: Development Budget ARTICLE 2. Loan Provisions 2.1 Loan. The City shall loan to the Developer the Loan in the principal amount of Seventy Five Thousand Dollars ($75,000) for the purposes set forth in Section 2.3 of this Agreement. The obligation of the Developer to repay the Loan shall be evidenced by the Developer Note in substantially the form attached to this Agreement as Exhibit B. 2.2 Interest. The Loan shall not bear interest; provided, however, if a Default is declared by the City, the Loan shall bear interest, commencing on the date of declaration of the Default (subject to applicable cure periods), at the default rate equal to the lesser of ten percent (1 O%), compounded annually or the maximum rate permitted by law. 2.3 Use of Loan Funds. The Developer shall use the City Loan to pay for a portion of costs associated with development of the Affordable Units, identified as City-funded costs in the budget attached hereto as Exhibit G. The Developer shall not use the City Loan funds for any other purpose without the prior written consent of the City. Heritage-Cliffs Loan Agr. 2.4 Security. The Developer shall secure its obligation to repay the City Loan, as evidenced by the Developer Note, by signing and delivering to the City the Developer Deed of Trust in substantially the form attached to this Agreement as Exhibit C. 2.5 Disbursement of Loan Proceeds. (4 The City shall have no obligation to disburse any portion of the City Loan unless the following conditions have been satisfied and continue to be satisfied: (0 The Developer has signed and delivered to the City the Developer Note in substantially the form attached to this Agreement as Exhibit B and the Developer Deed of Trust in substantially the form attached to this Agreement as Exhibit C. (ii) The Developer Deed of Trust has been recorded against the Affordable Development Property in the Office of the Recorder of the County of San Diego. (iii) A title insurer reasonably acceptable to the City is unconditionally and irrevocably committed to issuing a CLTA Lender’s Policy of insurance insuring the priority of the City Deed of Trust in the amount of the City Loan, subject only to such exceptions and exclusions as may be reasonably acceptable to the City and containing such endorsements as the City may reasonably require. The City agrees to accept the deed of trust securing the Bank Loan as a prior exception to title. (iv) The Developer has furnished the City with evidence of the insurance coverage required pursuant to Section 4.4 below. 09 The City has received a good standing certificate issued by the California Secretary of State’s office indicating that the Developer exists in good standing at the time of the proposed disbursement, as well as a copy of a resolution of the Developer indicating that Developer has duly authorized entry into and performance under this Agreement. (vi) The Developer has certified in writing to the City that the City Loan, together with the Bank Loan and any other financing obtained by the Developer, is projected to be sufficient to pay all development costs of the Affordable Units. (vii) The Developer (A) has received all general plan and zoning approvals necessary to construct the Affordable Units, (B) has submitted to the City a proposed final tract map for the Affordable Development which satisfies all tentative tract map conditions and is reasonably acceptable to the City Engineer, together with all fees required therefor, and (C) has submitted to the City all grading and improvement plans required for the Affordable Development, in a form which is reasonably acceptable to the City Engineer, together with all fees required therefore, and (D) has received from the City temporary or interim approval to commence grading of the Affordable Development Property, and (E) has received approval of building plans for the Affordable Development by the City Building and Safety Department, pending pad certification for permit issuance. Heritage-Cliffs Loan Agr. 5 (viii) The closing of the Bank Loan shall be completed and the City, the Bank, and the Developer shall have executed an Intercreditor Agreement as provided in Section 2.6 below. Prior to such closing, the City and the Developer shall cooperate in good faith with the Bank and shall make changes to the terms and conditions of this Agreement (including the exhibits hereto) as the Bank may require, and which the Developer and the City Housing and Community Development Director determine are reasonable. (b) Upon satisfaction of the conditions set forth in Section 2.5(a) above the City shall promptly, but in no event later than five (5) business days after receiving Developer’s written request and any required documentation, disburse the City Loan proceeds to Developer from time to time, but in no event more often than monthly. Disbursement requests shall include a certified statement from Developer: (i) reaffirming the accuracy as of the date of the disbursement request of Developer’s representations and warranties set forth in Article 6 below; (ii) certifying that Borrower is not in default under the City Loan Documents or loan documents for the Bank Loan; and (iii) setting forth the proposed uses of funds consistent with Section 2.3 and Exhibit G, the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to pay any contractor in connection with the Affordable Development, the written request must be accompanied by certification by Developer that the work for which disbursement is requested has been completed (although the City reserves the right to inspect the Affordable Development and make an independent evaluation), and lien releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City. City Loan proceeds utilized for hard construction costs of on-site improvements shall be subject to a retention of ten percent (lo%), with retained proceeds to be released upon completion of the on-site improvements. 2.6 Intercreditor Agreement. As set forth in Section 2.5(a)(viii) above, the City, the Bank, and the Developer shall enter into an Intercreditor Agreement as a condition of closing the City Loan. The Intercreditor Agreement shall set forth any agreements between the parties regarding the following issues: 60 the procedure and timing for disbursement of the City Loan proceeds by the City and Bank Loan proceeds by the Bank. m the provision to the City of notice of any default by Developer under the Bank Loan documents, and the nature and extent of the City’s cure rights, including the right of the City to foreclose on the City Deed of Trust, succeed to Developer under the Bank Loan (or assign its right to do so to another developer), and complete the Affordable Units. 2.7 Subordination. The City shall execute such documents as may be necessary to subordinate the priority of the City Deed of Trust to the lien of the deed of trust securing the Bank Loan. The subordination documents shall provide the City with reasonably adequate notice and cure rights to enable the City to avoid foreclosure of a senior deed of trust. Heritage-Cliffs Loan Agr. 6 2.8 Term and Repayment Schedule. The Loan shall be repaid as follows: (a) Upon sale of an Affordable Unit to an Eligible Buyer, the Developer shall carry back second mortgage financing to the Eligible Buyer in an amount equal to the Primary Affordability Subsidy for the Affordable Unit, as established pursuant to the Affordable Housing Agreement. The Developer shall assign its interest in such second mortgage financing to the City, and shall require that the Eligible Buyer sign, at close of escrow on the purchase of the Affordable Unit, the Borrower Disclosure Statement and the Eligible Buyer Note and the Eligible Buyer Deed of Trust for the benefit of the City. Upon the execution of the Borrower Disclosure Statement, the Eligible Buyer Note and the Eligible Buyer Deed of Trust, and the recordation of the Eligible Buyer Deed of Trust against the Affordable Unit, the City shall credit the Developer with repayment of Fifteen Thousand Dollars ($15,000) of the City Loan. The City and the Developer acknowledge that the principal amount of the Eligible Buyer Note to the City shall be equal to the Primary Affordability Subsidy, which includes the value to the Eligible Purchaser of the City’s inclusionary housing restrictions pursuant to the Affordable Housing Agreement and will therefore be greater in principal amount than the Direct City Subsidy Amount of Fifteen Thousand Dollars ($15,000), but nevertheless agree that only the Direct City Subsidy Amount of Fifteen Thousand Dollars ($15,000) shall be credited toward repayment of the City Loan. (b) Upon the sooner of the date of expiration of the Term, the date of an unauthorized Transfer of the Development, or Developer’s Transfer of the last Affordable Unit still owned by the Developer, all principal remaining unpaid or uncredited shall be due and payable. (4 At the time of sale of an Affordable Unit to an Eligible Buyer, the City shall execute a partial reconveyance of the Developer Deed of Trust to release the Affordable Unit being sold from the lien of the Developer Deed of Trust. Upon the sale of all Affordable Units in compliance with the Affordable Housing Agreement, the City shall entirely reconvey the Developer Deed of Trust. (4 The Developer may pay the principal and any interest due the City under the Developer Note prior to or in advance of the time for payment thereof as provided in the Developer Note, without penalty. However, the provisions of this Agreement and the Affordable Housing Agreement will be applicable to the Affordable Development even though Developer may have prepaid the Developer Note, including the requirement that a minimum of five (5) of the Units shall be sold to Eligible Buyers who execute City Second Mortgage Loan documents. 2.9 Assumption. Subject to Section 4.9 below, the Developer Note shall not be assumable by successors and assigns of Developer without the prior written consent of the City, which consent shall not be withheld unreasonably. 2.10 Approval of Additional Financing. The Developer shall not place any additional encumbrances on the Affordable Development Property without the prior written consent of the City, which consent shall not be withheld unreasonably. The City consents to encumbrances in connection with the Bank Loan. Heritage-Cliffs Loan Agr. 7 ARTICLE 3. Construction of the Development 3.1 Schedule of Performance. The Developer shall develop the Affordable Development in compliance with the Schedule of Performance. 3.2 Construction Pursuant to Plans and Laws. 60 The Developer shall construct the Affordable Development in conformance with the construction drawings approved by the City in connection with approval of the building permits for the Affordable Development. Co) The Developer shall cause all work performed in connection with the Affordable Development to be performed in compliance with (i) all applicable laws, ordinances, rules and regulations of federal, state, county or municipal governments or agencies now in force or that may be enacted hereafter, and (ii) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and the Developer shall be responsible to the City for the procurement and maintenance thereof, as may be required of the Developer and all entities engaged in work on the Affordable Development. (c) All construction work and professional services shall be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California. (4 The Developer shall be solely responsible for all aspects of the Developer’s conduct in connection with the Affordable Development, including (but not limited to) the quality and suitability of the construction drawings, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Affordable Development is solely for the purpose of determining whether the Developer is properly discharging its obligations to the City, and should not be relied upon by the Developer or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Affordable Development. 3.3 Equal Opportunity. During the construction of the Affordable Development there shall be no discrimination on the basis of race, color, creed, religion, age, disability, sex, sexual orientation, marital status, national origin, or ancestry, in the hiring, firing, promoting, or demoting of any person engaged in the construction work. Heritage-Cliffs Loan Agr. 8 C 3.4 Mechanics Liens, Stop Notices, and Notices of Completion. (4 If any claim of lien is filed against the Affordable Development Property or the Affordable Development or a stop notice affecting the City Loan is served on the City or any other lender or other third party in connection with the Affordable Development, then the Developer shall, within twenty (20) days after such tiling or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a surety bond in sufficient form and amount, or provide the City with other assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged. Co) If the Developer fails to discharge any lien, encumbrance, charge, or claim in the manner required in Section 3.4(a), then in addition to any other right or remedy, the City may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at the Developer’s expense. Alternately, the City may require the Developer to immediately deposit with the City the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof. The City may use such deposit to satisfy any claim or lien that is adversely determined against the Developer. (4 The Developer shall file a valid notice of cessation or notice of completion upon cessation of construction on the Affordable Development for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims or lien against the Affordable Development. The City may (but has no obligation to) record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Affordable Development. ARTICLE 4 Requirements During and After Construction 4.1 Information. The Developer shall promptly provide any information reasonably requested by the City in connection with the Affordable Development. 4.2 Records. The Developer shall maintain complete, accurate, and current records pertaining to the Affordable Development for a period of five (5) years after the creation of such records, and shall permit any duly authorized representative of the City to inspect and copy records, including records pertaining to income and household size of purchasers of the Affordable Units. Such records shall include records regarding the occupancy and sales price of the Affordable Units, as well as records that accurately and fully show the date, amount, purpose, and payee of all expenditures drawn from Loan funds. Such records shall also include all invoices, receipts, and other documents related to expenditures from the Loan funds. Records shall be maintained accurately and shall be kept current. 4.3 Inspections. The Developer shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Affordable Development by the City and by public authorities during reasonable business hours and upon reasonable advance notice for the purposes of determining compliance with this Agreement. Heritage-Cliffs Loan Agr. 9 4.4 Insurance. Throughout the period of Developer’s ownership of any portion of the Affordable Development, Developer shall maintain the following insurance policies: 09 Worker’s Compensation insurance, including Employer’s Liability coverage, with limits not less than One Million Dollars ($l,OOO,OOO) each accident, if required by law or if the Developer has employees. @I Comprehensive General Liability insurance with limits not less than Five Million Dollars ($5,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations. Cc) Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1 ,OOO,OOO) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable. However, if the Developer does not own or lease vehicles for purposes of this Agreement, then no automobile insurance shall be required. (d) Property insurance covering all Affordable Development real and personal (non-expendable) property, in form appropriate for the nature of such property, covering all risks of loss, including flood (if the Affordable Development Property is located within a flood zone), for 100% of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. w The Developer shall cause any general contractor or agent working on the Affordable Development under direct contract with the Developer to maintain insurance of the types and in at least the minimum amounts described in Sections 4.4(a), (b) and (c), and shall require that such insurance meet all of the general requirements of Sections 4.4(f), (g), and (h). Liability and Comprehensive Automobile Liability insurance to be maintained by such general contractor and agents pursuant to this subsection shall name as additional insureds the City, its officers, agents, employees, and members of the City Council. The Developer shall cause the conditions in this Section 4.4(e) to continue to be satisfied at all times after the disbursement of any City Loan funds and before sale of all Affordable Units in compliance with the Affordable Housing Agreement. (9 The required insurance shall be provided under an occurrence form, and Developer shall maintain such coverage continuously until all Affordable Units are sold. (is) Comprehensive General Liability, Comprehensive Automobile Liability and Property insurance policies shall be endorsed to name as additional insured the City and its officers, agents, and employees, as well members of the City Council. 0 All policies and bonds shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or intent not to renew to the address established for notices to the City. Heritage-Cliffs Loan Agr. 10 4.5 Hazardous Materials. (4 The Developer shall keep and maintain the Affordable Development in compliance with, and shall not cause or permit the Affordable Development to be in violation of, any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Affordable Development including, but not limited to, soil and ground water conditions. The Developer shall not use, generate, manufacture, store or dispose of on, under, or about the Affordable Development or transport to or from the Affordable Development any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of “hazardous substances, “hazardous wastes,” “hazardous materials,” or “toxic substances” under any applicable federal or state laws or regulations (collectively referred to hereinafter as “Hazardous Materials”) except such of the foregoing as may be customarily kept and used in and about single family residential property. 0-J) The Developer shall immediately advise the City in writing if at any time it receives written notice of(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Developer or the Affordable Development pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials (“Hazardous Materials Law”); (ii) all claims made or threatened by any third party against the Developer or the Affordable Development relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as “Hazardous Materials Claims”); and (iii) the Developer’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Affordable Development that could cause the Affordable Development or any part thereof to be classified as “border-zone property” under California Health and Safety Code Sections 25220 et seq. or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Affordable Development Property under any Hazardous Materials Law. (4 The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys’ fees in connection therewith paid by the Developer. The Developer shall indemnify, defend (with counsel reasonably chosen by the City, at the City’s option), and hold harmless the City and its officers, councilmembers, employees, and agents from and against any loss, damage, cost, expense, or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Affordable Development, including (without limitation): (i) all foreseeable consequential damages; (ii) the costs of any required or necessary repair, cleanup, or detoxification of the Affordable Development and the preparation and implementation of any closure, remedial, or other required plans; and (iii) all reasonable costs and expenses incurred by the City in connection with clauses (i) and (ii), including (but not limited to) reasonable attorneys’ fees. This paragraph shall survive termination of this Agreement. Heritage-Cliffs Loan Agr. 11 w Without the City’s prior written consent, which shall not be unreasonably withheld, the Developer shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Affordable Development, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the City’s reasonable judgement, impair the value of the City’s security hereunder. However, the City’s prior consent shall not be necessary if the presence of Hazardous Materials on, under, or about the Affordable Development either poses an immediate threat to the health, safety or welfare of any individual, or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City’s consent before taking such action, provided that in such event the Developer shall notify the City as soon as practicable of any action so taken. The City shall not withhold its consent, where consent is required hereunder, if either (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) the Developer will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; or (iii) the Developer establishes to the reasonable satisfaction of the City that there is no reasonable alternative to such remedial action which would result in less impairment of the City’s security hereunder. (9 The Developer acknowledges and agrees that (i) this Section 4.5 is intended as the City’s written request for information (and the Developer’s response) concerning the environmental condition of the Affordable Development as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of or such representation and warranty) with respect to the environmental condition of the Affordable Development is intended by the Parties to be an “environmental provision” for purposes of California Code of Civil Procedure Section 736. 4.6 Fees and Taxes. During the period of ownership of the Affordable Development by the Developer, the Developer shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Affordable Development or portion thereof owned by the Developer, and shall pay such charges prior to delinquency. However, the Developer shall not be required to pay and discharge any such charge so long as (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the City, the Developer deposits with the City any funds or other forms of assurance that the City in good faith from time to time determines appropriate to protect the City from the consequences of the contest being unsuccessful. 4.7 Nondiscrimination. The Developer 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, or enjoyment of any Affordable Unit, nor shall the Developer or any person claiming under or through the Developer establish or permit any such practice or practices of discrimination or segregation. The foregoing covenant shall run with the land. Heritage-Cliffs Loan Agr. 12 4.8 Notice of Litigation. During the period of ownership of the Affordable Development by the Developer, the Developer shall promptly notify the City in writing of any litigation affecting the Developer or the Development and of any claims or disputes that involve a material risk of litigation. 4.9 Transfers. (4 The qualifications and identity of the Developer are of particular concern to the City. It is because of those qualifications and identity that the City has entered into this Agreement with the Developer. The City shall have no obligation to perform hereunder if any voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. The City may terminate this Agreement upon the occurrence of a Transfer prohibited by subsection (b). The City shall approve a proposed Transfer if the Developer is transferring the entire Affordable Development Property to the transferee and the City reasonably determines that the proposed transferee possesses the qualifications, development experience and financial capability necessary and adequate to fulfil1 the obligations undertaken in this Agreement and the Affordable Housing Agreement by the Developer. Co) No Transfer shall be permitted prior to repayment of the City Loan in full or prior to sale of all Affordable Units in compliance with the Affordable Housing Agreement without the prior written consent of the City, which the City shall grant or withhold in accordance with the standard set forth in subsection (a) above. Pursuant to Section 2.8(b) above, the City Loan shall automatically accelerate and be due in full upon any Transfer for which prior written City approval has not been obtained. (4 For purposes of this Agreement, “Transfer” shall mean, except as excluded by the provisions of subsection (d), any sale, assignment, or transfer, whether voluntary or involuntary, of(i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Development, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Affordable Development is transferred and the Developer retains title. (4 The term “Transfer” shall exclude the following transfers that would otherwise be Transfers under subsection (a): (0 the assignment of this Agreement (and the transfer of the Affordable Development) to a corporation controlled by the Developer, or to a partnership or joint venture in which the Developer, or an entity controlled by the Developer, is a general partner and is in control thereof; (ii) the admission of additional new general or limited partners, or the substitution or deletion of partners to any partnership or joint venture set forth in (i) above so long as the Developer, or an entity controlled by the Developer, continues in control; Heritage-Cliffs Loan Agr. 13 C (iii) the granting of easements, licenses or permits to facilitate the development of the Affordable Development; (iv) the granting of any security interest in the Affordable Development or other financing arrangement for the purposes of securing the Bank Loan or other financing or the transfer of such security interests to another entity; w the transfer or conveyance of all or any portion of the Affordable Development by foreclosure of a mortgage or deed of trust or by transfer in-lieu-of foreclosure thereof, and a subsequent transfer or conveyance of all or any portion of the Development to a third party transferee. (vi) the sale or transfer of individual Units in the Affordable Development to homebuyers in compliance with the Affordable Housing Agreement. w In the absence of specific written agreement by the City, or except to a transferee otherwise authorized in this Agreement (whereupon the transferor-assignor shall be relieved of its obligations hereunder), no Transfer (whether authorized or unauthorized) shall be deemed to relieve the Developer or any other party of any obligations under this Agreement. 4.10 Sale of Units. All Units in the Affordable Development shall be sold to Eligible Buyers in compliance with the Affordable Housing Agreement. The Developer shall grant preference in the sale of Units to persons who have lived for sixty (60) days in the City of Carlsbad or who are employed in the City of Carlsbad. ARTICLE 5. Default 5.1 Events of Default. Each of the following shall constitute a “Default” by Developer under this Agreement: (4 Failure to Make Payment. Failure to make prompt payments of the principal on the Developer Note when due; (b) Breach of Covenants. Failure by the Developer to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Loan Documents (other than a monetary default as described in paragraph (a) above). If such a non-monetary event of default occurs under the terms of the Loan Documents, unless automatic acceleration is provided for hereunder, prior to exercising any remedies thereunder, the City shall give the Developer written notice of such default and the Developer shall have thirty (30) days (unless an alternative time period is specified hereunder, in which event such alternate cure period shall apply) to effect a cure prior to exercise of remedies by the City. (c) Insolvency. A court having jurisdiction shall have made or entered any decree or order (i) adjudging the Developer to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of the Developer or seeking any arrangement for the Developer under the bankruptcy law or any other applicable debtor’s relief law or statute of Heritage-Cliffs Loan Agr. 14 &3 the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or for any of their properties, or (iv) directing the winding up or liquidation of the Developer, or the Developer shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. The occurrence of any of the events described in clauses (i) to (iv) with regard to Developer’s managing member shall also be a Default hereunder. The occurrence of any of the events of Default in this Section 5.1(c) shall act to accelerate automatically, without the need for any notice or action by the City, the indebtedness evidenced by the Developer Note. (4 Assignment; Attachment. The Developer, by reason of a default under its obligations to creditors, has assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property; provided that Developer shall have sixty (60) days to cure any sequestration, attachment, or execution not consented to by Developer. The occurrence of any of the events of Default in this Section 5.1(d) shall act to accelerate automatically, without the need for any notice or action by the City, the indebtedness evidenced by the Developer Note. (e) Suspension; Termination. The Developer shall have voluntarily suspended its business or, if Developer is a partnership, the partnership shall have been dissolved or terminated. (0 Liens on the Development. There shall be filed any claim of lien (other than the deed(s) of trust and other security instruments in connection with the Bank Loan lien approved in writing by the City) against the Affordable Development or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the City Loan, and such claim of lien or notices to withhold is maintained for a period of forty- five (45) days without discharge or satisfaction thereof or provision therefor satisfactory to the City. (g) Condemnation. The condemnation, seizure, or appropriation of all or, in the opinion of the City, a substantial part of the Affordable Development. 0 Defaults Under Other Loans. Any default declared by the lender under any loan document related to the Bank Loan or other loan secured by the Affordable Development Property, which default is not cured by the Developer following the expiration of applicable notice and cure periods under the Bank Loan Documents or other loan document, shall act to accelerate automatically, without the need for any notice or action by the City, the indebtedness evidenced by the Developer Note. (9 Breach of Representation. Any representation or warranty of Developer to the City was materially incorrect when made. 5.2 Remedies. The occurrence of any Default will either at the option of the City, or automatically where so specified, relieve the City of any obligation to make or continue the City . Heritage-Cliffs Loan Agr. 15 Loan and shall give the City the right to proceed with any and all remedies set forth in this Agreement and the Loan Documents, including but not limited to the following: (9 Acceleration of Developer Note. The City shall have the right to cause all indebtedness of the Developer to the City under this Agreement and the Developer Note to become immediately due and payable, with interest accruing on the principal amount from the date of acceleration to the date of repayment at an interest rate equal to the lesser of ten percent (10%) or the maximum rate permitted by law. The Developer waives all right to presentment, demand, protest or notice of protest or dishonor. The City may proceed to enforce payment of the indebtedness and to exercise any or all rights afforded to the City as a creditor and secured party under the law including the Uniform Commercial Code, including foreclosure under the City Deed of Trust. The Developer shall be liable to pay the City on demand all expenses, costs and fees (including, without limitation, attorney’s fees and expenses) paid or incurred by the City in connection with the collection of the City Loan and the preservation, maintenance, protection, sale, or other disposition of the security given for the Loan. @I Specific Performance. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the Developer to perform its obligations and covenants under the Loan Documents or to enjoin acts on things which may be unlawful or in violation of the provisions of the Loan Documents. (4 Right to Cure at the Developer’s Expense. The City shall have the right to cure any monetary default by the Developer under a loan other than the City Loan. The Developer shall reimburse the City for any funds advanced by the City to cure a monetary default by Developer upon demand therefor, together with interest thereon at the rate of interest equal to the rate of interest on the Bank Loan from the date of expenditure until the date of reimbursement. 5.3 Remedies Cumulative. No right, power, or remedy given to the City by the terms of this Agreement or the Loan Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against the Developer and any other person. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy. 5.4 Waiver of Terms and Conditions. The City’s Housing and Redevelopment Director may at his or her discretion waive in writing any of the obligations of the Developer under this Agreement, without the Developer completing an amendment to this Agreement. No waiver of any default or breach by Developer hereunder shall be implied ti-om any omission by the City to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any Heritage-Cliffs Loan Agr. 16 subsequent breach of the same covenant, term, or condition. The consent or approval by the City to or of any act by the Developer requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this Agreement or the Loan Documents, nor shall it invalidate any act done pursuant to notice of default, or prejudice the City in the exercise of any right, power, or remedy hereunder or under the Loan Documents, unless in the exercise of any such right, power, or remedy all obligations of the Developer to City are paid and discharged in full. ARTICLE 6. Representations And Warranties Of Developer 6.1 Representations and Warranties. Developer hereby represents and warrants to the City as follows: (4 Organization. Developer is duly organized, validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted. @I Authority of Developer. Developer has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the City Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above. (4 Authority of Persons Executing Documents. This Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Developer, and all actions required under Developer’s organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Loan Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. (4 Valid Binding Agreements. This Agreement and the Loan Documents and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Developer enforceable against it in accordance with their respective terms. 03 No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the Loan Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on Developer, or any provision of the organizational documents of Developer, or will conflict with or constitute a breach of or a default under any Heritage-Cliffs Loan Agr. 17 agreement to which Developer is a party, or will result in the creation or imposition of any lien upon any assets or property of Developer, other than liens established pursuant hereto. (0 Pending Proceedings. Developer is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Developer, threatened against or affecting Developer or the Affordable Development, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Developer, materially affect Developer’s ability to repay the City Loan or impair the security to be given to the City pursuant hereto. (ia Financial Statements. The financial statements of Developer and other financial data and information furnished by Developer to the City fairly present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of Developer from that shown by such financial statements and other data and information. @I Sufficient Funds. Developer holds sufficient funds and/or binding commitments for sufficient funds to complete the construction of Affordable Development in accordance with the plans and specifications approved by the City. ARTICLE 7. General Provisions 7.1 Relationship of Parties. Nothing contained in this Agreement shall be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and the Developer or its agents, employees or contractors, and the Developer shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. The Developer has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the construction of the Improvements and sale of the Units, the Developer shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each contract that contractors shall be solely responsible for similar matters relating to their employees. The Developer shall be solely responsible for its own acts and those of its agents and employees. 7.2 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person that the Developer may have employed or with whom the Developer may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the construction or sale of the Affordable Units, and the Developer shall include similar requirements in any contracts entered into for the construction or sale of the Affordable Units. Heritage-Cliffs Loan Agr. 18 27 7.3 Amendments. No alteration or variation of the terms of this Agreement shall be valid unless made in writing by the Parties. 7.4 Indemnification. Developer shall indemnify, defend, and hold harmless (without limit as to amount) City and its elected officials, officers, employees and agents in their official capacity (hereinafter collectively referred to as “Indemnitees”), and any of them, from and against all loss, all risk of loss and all damage (including expense and attorneys fees) sustained or incurred because of or by reason of any and all claims, demands, suits, actions, judgments and executions for damages of any and every kind and by whomever and whenever made of obtained, allegedly caused by, arising out of or relating in any manner to Developer’s actions or defaults pursuant to this Agreement, or construction of the Development and sale of any Units, and shall protect and defend Indemnitees, and any of them with respect thereto. The provisions of this Section 7.4 shall survive the expiration of the Term or the termination of this Agreement. 7.5 Non-Liability of City Offkials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to the Developer in the event of any default or breach by the City or for any amount which may become due to the Developer or its successor or on any obligation under the terms of this Agreement. 7.6 No Third Party Beneficiaries. There shall be no third party beneficiaries to this Agreement. 7.7 Discretion Retained By City. The City’s execution of this Agreement in no way limits the discretion of the City in the permit and approval process in connection with the Development. 7.8 Notices, Demands and Communications. Formal notices, demands, and communications between the Parties shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows: City: City of Carlsbad Housing and Community Development Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Attention: Housing and Redevelopment Director Developer: Phillip M, Jones, President Heritage Home Builders 2420 Grand Avenue, Suite G2 Vista, CA 92083 Heritage-Cliffs Loan Agr. 19 Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section 7.8. Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable). 7.9 Applicable Law. This Agreement shall be governed by California law. 7.10 Parties Bound; Covenants Running with the Land. Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal representatives, successors, and assigns. This Agreement is intended to run with the land and shall bind the Developer and its successors and assigns in the Land and the Development for the entire Term, and the benefit hereof shall inure to the benefit of the City and its successors and assigns. 7.11 Attorneys’ Fees. If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorneys’ fees and costs of suit from the other Party. 7.12 Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 7.13 Force Majeure. In addition to specific provisions of this Agreement, performance by either Party shall not be deemed to be in default where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods; earthquakes; fires; quarantine restrictions; freight embargoes; lack of transportation; third party lawsuit; or court order; or any other similar causes beyond the control or without the fault of the Party claiming an extension of time to perform (but not including any inability by Developer to secure financing). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause. If, however, notice by the party claiming such extension is sent to the other party more than thirty (30) days after the commencement of the cause, the period shall commence to run only thirty (30) days prior to the giving of such notice. 7.14 Approvals. Whenever this Agreement calls for City approval, consent, or waiver, the written approval, consent, or waiver of the City’s Housing and Redevelopment Director shall constitute the approval, consent, or waiver of the City, without further authorization required from the City Council. The City hereby authorizes the City’s Housing and Redevelopment Director to deliver such approvals or consents as are required by this Agreement, or to waive requirements under this Agreement, on behalf of the City. 7.15 Title of Parts and Sections. Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement’s provisions. Heritage-Cliffs Loan Agr. 20 7.16 Entire Understanding of the Parties. This Agreement constitutes the entire understanding and agreement of the Parties with respect to the Loan. 7.17 Multiple Originals; Counterpart. This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts. 7.18 Time of the Essence. Time is of the essence in this Agreement. Heritage-Cliffs Loan Agr. 21 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. Developer: HERITAGE-CLIFFS, LLC, a California limited liability company By: Phillip M. Jones, President City: City of Carlsbad, a municipal corporation By: Ray Patchett, City Manager Approved as to Form By: Ron Ball, City Attorney Heritage-Cliffs Loan Agr. 22 3/ STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , 199-, 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. STATE OF CALIFORNIA ) 1 ss COUNTY OF ) On , 1999, 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. Heritage-Cliffs Loan Agr. 23 C EXHIBIT A LEGAL DESCRIPTION OF THE AFFORDABLE DEVELOPMENT PROPERTY A-l 33 EXHIBIT B FORM OF THE DEVELOPER NOTE B-l $75,000 PROMISSORY NOTE Carlsbad, California ,lR FOR VALUE RECEIVED, the undersigned Heritage-Cliffs, LLC, a California limited liability company (the “Developer”), hereby promises to pay to the order of the City of Carlsbad, a municipal corporation (the “Holder”), a principal amount equal to Seventy-Five Thousand Dollars ($75,000), or so much thereof as is advanced by the Holder to the Developer pursuant to the Loan Agreement between the Developer and the Holder dated as of 1999 (the “Agreement”). All capitalized terms not otherwise defined in this Note shall have the meanings set forth in the Agreement. 1. Interest; Renavment Terms. The indebtedness evidenced by this Note shall not bear interest; provided, however, if a default occurs hereunder, the principal amount of this Note shall bear interest commencing on the date of default at the default rate equal to the lesser of ten percent (lo%), compounded annually, or the maximum amount permitted by law. The Note shall be due and payable at the times and in the manner set forth in Section 2.8 of the Agreement. 2. No Assumntion. Except as provided in Section 4.9 of the Agreement, this Note shall not be assumable by the successors and assigns of Developer without the prior written consent of the City. 3. Terms of Pavment. a. All payments due under this Note shall be paid in currency of the United States of America, which at the time of payment is lawful for the payment of public and private debts. b. All payments on this Note shall be paid to Holder at the Housing and Community Development Department, City of Carlsbad, 2965 Roosevelt Street, Suite B, Carlsbad, CA 92008, Attn: Housing and Redevelopment Director, or to such other place as the Holder of this Note may from time to time designate. C. All payments on this Note shall be without expense to the Holder, and the Developer agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney’s fees of the Holder, incurred in connection with the payment of this Note and the release of any security hereof. 4. Acceleration. Upon the occurrence of a Default (as defined in the Loan Agreement), the City shall have the right to accelerate the debt evidenced by this Note and Herritage-Cliffs Promissory Note 1 declare all of the unpaid principal and interest, if any, immediately due and payable. Upon the occurrence of a Default, the outstanding portion of the principal shall bear interest at the rate of the lesser of ten percent (lo%), compounded annually, and the highest rate permitted by law. 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 Deed of Trust, and the Loan Agreement. 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 payment owed. 5. No Offset. The Developer hereby waives any rights of offset it now has or may hereafter have against the City, its successors and assigns, and agrees to make the payments called for herein in accordance with the terms of this Note and the Loan Agreement. 6. Waiver: Attomevs’ Fees. Developer, for itself, its heirs, legal representatives, successors and assigns, respectively, waives diligence, presentment, protest, and demand, and notice of protest, dishonor and non-payment of this Note, and expressly waives 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 waives 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 agrees to pay all costs of collection when incurred, including reasonable attorneys’ fees. If an action is instituted on this Note, the undersigned 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. This Note is secured by a Deed of Trust and Security Agreement Securitv. (the “Developez’Deed of Trust”), of even date herewith, wherein the Developer is the Trustor and the Holder is the Beneficiary, constituting a second priority lien against the Affordable Development. 8. Miscellaneous Provisions. a. All notices to the Holder or the Developer shall be given in the manner and at the addresses set froth in the Agreement, or to such addresses as the Holder and the Developer may hereinafter designate. b. This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought. C. This Note shall be governed by and construed in accordance with the laws of the State of California. d. The times for the performance of any obligations hereunder shall be strictly construed, time being of the essence. Herritage-Cliffs Promissory Note 2 36. e. This document, together with the other Loan Documents, contains the entire agreement between the parties as to the City Loan. It may not be modified except upon written consent of the parties. Developer: Heritage-Cliffs, LLC, a California limited liability company By: Phillip M. Jones, President Herritage-Cliffs Promissory Note 37 EXHIBIT C FORM OF THE DEVELOPER DEED OF TRUST C-l RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk’s Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: City Clerk No fee for recording pursuant to Government Code Section 27383 (Space above for Recorder’s Use) DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT (“Deed of Trust”) is made as of this 1999, by and among Heritage-Cliffs, LLC, a California limited day of liability company (“Trustor”\, (“Trustee”), and the City of Carlsbad, a municipal corporation (“Benet&&‘). FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions hereinafter set forth, Trustor’s fee interest in the property located in the City of Carlsbad, County of San Diego, State of California, that is described in the attached Exhibit A, incorporated herein by this reference (the “Property”). TOGETHER WITH all interest, estates or other claims, both in law and in equity which Trustor now has or may hereafter acquire in the Property and the rents; TOGETHER WITH all easements, rights-of-way and rights used in connection therewith or as a means of access thereto, including (without limiting the generality of the foregoing) all tenements, hereditaments and appurtenances thereof and thereto; TOGETHER WITH any and all buildings and improvements of every kind and description now or hereafter erected thereon, and all property of the Trustor now or hereafter affixed to or placed upon the Property; TOGETHER WITH all building materials and equipment now or hereafter delivered to said property and intended to be installed therein; TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter acquired, in and to any land lying within the right-of-way of any street, open or proposed, adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to or used in connection with the Property; Heritage-Cliffs Deed of Trust I 3Y - TOGETHER WITH all estate, interest, right, title, other claim or demand, of every nature, in and to such property, including the Property, both in law and in equity, including, but not limited to, all deposits made with or other security given by Trustor to utility companies, the proceeds from any or all of such property, including the Property, claims or demands with respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may hereafter acquire, any and all awards made for the taking by eminent domain or by any proceeding or purchase in lieu thereof of the whole or any part of such property, including without limitation, any awards resulting from a change of grade of streets and awards for severance damages to the extent Beneficiary has an interest in such awards for taking as provided in Paragraph 4.1 herein; and TOGETHER WITH all of Trustor’s interest in 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 therefor, whether or not the same are, or shall be attached to said building or buildings in any manner. TOGETHER WITH all of Trustor’s interest in all building materials, fixtures, equipment, work in process and other personal property to be incorporated into the Property; all goods, materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other personal property now or hereafter appropriated for use on the Property, whether stored on the Property or elsewhere, and used or to be used in connection with the Property; all rents, issues and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles, chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance and condemnation awards and proceeds, trade names, trademarks and service marks arising from or related to the Property and any business conducted thereon by Trustor; all replacements, additions, accessions and proceeds; and all books, records and files relating to any of the foregoing. 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. FOR THE PURPOSE OF SECURING: Go Payment ofjust indebtedness of Trustor to Beneficiary as set forth in the Note (defined in Article 1 below) until paid or canceled. Said principal and other payments shall be due and payable as provided in the Note. Said Note and all its terms are incorporated herein by reference, and this conveyance shall secure any and all extensions thereof, however evidenced; and Heritage-Cliffs Deed of Trust 2 (b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to the terms and provisions of this Deed of Trust following a breach of Trustor’s obligation to advance said sums and the expiration of any applicable cure period, with interest thereon as provided herein; and w Performance of every obligation, covenant or agreement of Trustor contained herein and in the Loan Documents (defined in Section 1.2 below). AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR COVENANTS AND AGREES: ARTICLE 1 DEFINITIONS In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall have the following meanings in this Deed of Trust: 1.1 The term “Affordable Housing Agreement” means that certain Affordable Housing Agreement Imposing Restrictions on Real Property between Heritage-Cliffs, LLC., Beneficiary dated , 1998 and recorded as Document in the Official Records of San Diego County. 1.2 The term “Loan Agreement” means that certain Loan Agreement between Trustor and Beneficiary, dated 1998 providing for the Beneficiary to loan to the Trustor in the amount of Fifteen Thousand Dollars ($15,000) for the construction of improvements on the Property. 1.3 The term “Loan Documents” means this Deed of Trust, the Note, the Loan Agreement, and the Affordable Housing Agreement and any other debt, loan or security instruments between Trustor and the Beneficiary relating to the Property. 1.4 The term “Note” means the promissory note in the principal amount of Fifteen Thousand Dollars ($15,000) of even date herewith executed by the Trustor in favor of the Beneficiary, the payment of which is secured by this Deed of Trust. (A copy of the Note is on file with the Beneficiary and terms and provisions of the Note is incorporated herein by reference.) 1.5 The term “Principal” means all amounts (including interest) required to be paid under the Note. ARTICLE 2 MAINTENANCE AND MODIFICATION OF THE PROPERTY AND SECURITY Heritage-Cliffs Deed of Trust 3 2.1 Maintenance and Modification of the Property by Trustor. The Trustor agrees that at all times prior to full payment of the sum owed under the Note, the Trustor will, at the Trustor’s own expense, maintain, preserve and keep the Security or cause the Security to be maintained and preserved in good condition. The Trustor will from time to time make or cause to be made all repairs, replacements and renewals deemed proper and necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the making of improvements or additions to the Security. Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all claims for labor done and for material and services furnished in connection with the Security, diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation of labor on the work or construction on the Security for a continuous period of thirty (30) days or more, and to take all other reasonable steps to forestall the assertion of claims of lien against the Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary as its agent (said agency being coupled with an interest) with the authority, but without any obligation, to file for record any notices of completion or cessation of labor or any other notice that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the Loan Documents; provided, however, that Beneficiary shall exercise its rights as agent of Trustor only in the event that Trustor shall fail to take, or shall fail to diligently continue to take, those actions as hereinbefore provided. Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or claims as Beneficiary shall specify upon laborers, materiahnen, subcontractors or other persons who have furnished or claim to have furnished labor, services or materials in connection with the Security. Nothing herein contained shall require Trustor to pay any claims for labor, materials or services which Trustor in good faith disputes and is diligently contesting provided that Trustor shall, within thirty (30) days after the filing of any claim of lien, record in the Office of the Recorder of San Diego County, a surety bond in an amount 1 and l/2 times the amount of such claim item to protect against a claim of lien. 2.2 Granting of Easements. Trustor may not grant easements, licenses, rights- of-way or other rights or privileges in the nature of easements with respect to any property or rights included in the Security except those required or desirable for installation and maintenance of public utilities including, without limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law. As to these exceptions, Beneficiary will grant and/or direct the Trustee to grant such easements. ARTICLE 3 TAXES AND INSURANCE; ADVANCES 3.1 Taxes, Other Governmental Charges and Utility Charges. Trustor shall pay, or cause to be paid, at least fifteen (15) days prior to the date of delinquency, all taxes, assessments, charges and levies imposed by any public authority or utility company which are or may become a lien affecting the Security or any part thereof; provided, however, that Trustor Heritage-Cliffs Deed of Trust 4 shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a) the legality thereof shall be promptly and actively contested in good faith and by appropriate proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this Section 3.1. With respect to taxes, special assessments or other similar governmental charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of the Security; provided, however, if such taxes, assessments or charges may be paid in installments, Trustor may pay in such installments. Except as provided in clause (b) of the first sentence of this paragraph, the provisions of this Section 3.1 shall not be construed to require that Trustor maintain a reserve account, escrow account, impound account or other similar account for the payment of future taxes, assessments, charges and levies. In the event that Trustor shall fail to pay any of the foregoing items required by this Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within seven (7) business days after receipt of such notice. Any amount so advanced therefor by Beneficiary, together with interest thereon from the date of such advance at the maximum rate permitted by law, shall become an additional obligation of Trustor to the Beneficiary and shall be secured hereby, and Trustor agrees to pay all such amounts. 3.2 Provisions Respecting Insurance. Trustor agrees to provide insurance conforming in all respects to that required under the Loan Documents during the course of construction and following completion, and at all times until all amounts secured by this Deed of Trust have been paid and all other obligations secured hereunder fulfilled, and this Deed of Trust reconveyed. All such insurance policies and coverages shall be maintained at Trustor’s sole cost and expense. Certificates of insurance for all of the above insurance policies, showing the same to be in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time prior to the Beneficiary’s receipt of the entire Principal and all amounts secured by this Deed of Trust. 3.3 Advances. In the event the Trustor shall fail to maintain the full insurance coverage required by this Deed of Trust or shall fail to keep the Security in accordance with the Loan Documents, the Beneficiary, after at least seven (7) days prior notice to Beneficiary, may (but shall be under no obligation to) take out the required policies of insurance and pay the premiums on the same or may make such repairs or replacements as are necessary and provide for payment thereof; and all amounts so advanced therefor by the Beneficiary shall become an additional obligation of the Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby, which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid, shall bear interest from the date of the advance at the lesser of ten percent (10%) per annum or the maximum rate permitted by law. ARTICLE 4 DAMAGE, DESTRUCTION OR CONDEMNATION Heritage-Cliffs Deed of Trust 5 4.1 Awards and Damages. All judgments, awards of damages, settlements and compensation made in connection with or in lieu of (1) taking of all or any part of or any interest in the Property by or under assertion of the power of eminent domain, (2) any damage to or destruction of the Property or in any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the Property (“Funds”) are hereby assigned to and shall be paid to the Beneficiary by a check made payable to the Beneficiary. The Beneficiary is authorized and empowered (but not required) to collect and receive any funds and is authorized to apply them in whole or in part upon any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary shall determine at its sole option. The Beneficiary shall be entitled to settle and adjust all claims under insurance policies provided under this Deed of Trust and may deduct and retain from the proceeds of such insurance the amount of all expenses incurred by it in connection with any such settlement or adjustment. All or any part of the amounts so collected and recovered by the Beneficiary may be released to Trustor upon such conditions as the Beneficiary may impose for its disposition. Application of all or any part of the Funds collected and received by the Beneficiary or the release thereof shall not cure or waive any default under this Deed of Trust. The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior mortgage lender. ARTICLE 5 AGREEMENTS AFFECTING THE PROPERTY; FURTHER ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST 5.1 Other Agreements Affecting Property. The Trustor shall duly and punctually perform all terms, covenants, conditions and agreements binding upon it under the Loan Documents and any other agreement of any nature whatsoever now or hereafter involving or affecting the Security or any part thereof. 5.2 Agreement to Pay Attorneys’ Fees and Expenses. In the event of any Event of Default (as defined below) hereunder, and if the Beneficiary should employ attorneys or incur other expenses for the collection of amounts due or the enforcement of performance or observance of an obligation or agreement on the part of the Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such expenses are incurred at the lesser of ten percent (10%) per annum or the maximum rate permitted by law. 5.3 Payment of the Principal. The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth in the Note in the amounts and by the times set out therein. Heritage-Cliffs Deed of Trust 6 5.4 Personal Property. To the maximum extent permitted by law, the personal property subject to this Deed of Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall constitute a fixtures filing under the California Commercial Code. As to any personal property not deemed or permitted to be fixtures, this Deed of Trust shall constitute a security agreement under the California Commercial Code. 5.5 Financing Statement. The Trustor shall execute and deliver to the Beneficiary such financing statements pursuant to the appropriate statutes, and any other documents or instruments as are required to convey to the Beneficiary a valid perfected security interest in the Security. The Trustor agrees to perform all acts which the Beneficiary may reasonably request so as to enable the Beneficiary to maintain such valid perfected security interest in the Security in order to secure the payment of the Note in accordance with their terms. The Beneficiary is authorized to tile a copy of any such financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order to protect the security interest established pursuant to this instrument. 5.6 Operation of the Security. The Trustor shall operate the Security (and, in case of a transfer of a portion of the Security subject to this Deed of Trust, the transferee shall operate such portion of the Security) in full compliance with the Loan Documents. 5.7 Inspection of the Security. At any and all reasonable times upon seventy-two (72) hours’ notice, the Beneficiary and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right, without payment of charges or fees, to inspect the Security. 5.8 Nondiscrimination. The Trustor herein covenants by and for itself, its heirs, executors, administrators, and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the Trustor itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of transferees or vendees in the Security. The foregoing covenants shall run with the land. ARTICLE 6 HAZARDOUS WASTE Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and ground water conditions. Trustor shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of “hazardous substances,” hazardous wastes, ” “hazardous materials,” or “toxic Heritage-Cliffs Deed of Trust 7 substances” under any applicable federal or state laws or regulations (collectively referred to hereinafter as “Hazardous Materials”) except such of the foregoing as may be customarily kept and used in and about multifamily residential property. Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of(i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, (“Hazardous Materials Law”); (ii) all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above hereinafter referred to a “Hazardous Materials Claims”); and (iii) Trustor’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be classified as “border-zone property” under the provision of California Health and Safety Code, Sections 25220 et seq. or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. Beneficiary shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys’ fees in connection therewith paid by Trustor. Trustor shall indemnify and hold harmless Beneficiary and its councihnembers, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property including without limitation: (a) all foreseeable consequential damages; (b) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (c) all reasonable costs and expenses incurred by Beneficiary in connection with clauses (a) and (b), including but not limited to reasonable attorneys’ fees. Without Beneficiary’s prior written consent, which shall not be unreasonably withheld, Trustor shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in Beneficiary’s reasonable judgement, impair the value of the Beneficiary’s security hereunder; provided, however, that Beneficiary’s prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain Beneficiary’s consent before taking such action, provided that in such event Trustor shall notify Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if either (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable Heritage-CMfs Deed of Trust 8 alternative to such remedial action which would result in less impairment of Beneficiary’s security hereunder; or (iv) the action has been agreed to by Beneficiary. The Trustor hereby acknowledges and agrees that (i) this Article is intended as the Beneficiary’s written request for information (and the Trustor’s response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the property is intended by the Beneficiary and the Trustor to be an “environmental provision” for purposes of California Code of Civil Procedure Section 736. In the event that any portion of the Property is determined to be “environmentally impaired” (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an “affected parcel” (as that term is defined in California Code of Civil Procedure Section 7265(e)(l)), then, without otherwise limiting or in any way affecting the Beneficiary’s or the Trustee’s rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and remedies of an unsecured creditor, including reduction of its claim against the Trustor to judgment, and (b) any other rights and remedies permitted by law. For purposes of determining the Beneficiary’s right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor shall be deemed to have willfully permitted or acquiesced in a release or threatened release of hazardous materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(l), if the release or threatened release of hazardous materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Trustor knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys’ fees, incurred by the Beneficiary in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the rate specified in the Note until paid, shall be added to the indebtedness secured by this Deed of Trust and shall be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action. ARTICLE 7 EVENTS OF DEFAULT AND REMEDIES 7.1 Events of Default. The following shall constitute Events of Default following the expiration of any applicable notice and cure periods: (1) failure to make any payment to be paid by Trustor under the Loan Documents; (2) failure to observe or perform any of Trustor’s other covenants, agreements or obligations under the Loan Documents, including, without limitation, the provisions concerning discrimination; or (3) failure to make any payment or perform any of Trustor’s other covenants, agreements, or obligations under any other debt Heritage-Cliffs Deed of Trust 9 - instruments or regulatory agreement secured by the Property, which default shall not be cured within the times and in the manner provided therein. 7.2 Acceleration of Maturity. If an Event of Default shall have occurred and be continuing, then at the option of the Beneficiary, the amount of any payment related to the Event of Default and the unpaid Principal of the Note shall immediately become due and payable, upon written notice by the Beneficiary to the Trustor (or automatically where so specified in the Loan Documents), and no omission on the part of the Beneficiary to exercise such option when entitled to do so shall be construed as a waiver of such right. 7.3 The Beneficiary’s Right to Enter and Take Possession. If an Event of Default shall have occurred and be continuing, the Beneficiary may: (a) 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 Trustee, and do any acts which it deems necessary or desirable to preserve the value or marketability of the Property, 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 Event of Default or Notice of Default (as defined below) hereunder or invalidate any act done in response to such Default or pursuant to such Notice of Default and, notwithstanding the continuance in possession of the Security, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise the power of sale; (b) Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (c) Deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and election to cause Trustor’s interest in the Security to be sold (“Notice of Default and Election to Sell”), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official Records of San Diego County; or (d) Exercise all other rights and remedies provided herein, in the instruments by which the Trustor 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. 7.4 Foreclosure By Power of Sale. Should the Beneficiary elect to foreclose by exercise of the power of sale herein contained, the Beneficiary shall give notice to the Trustee (the “Notice of Sale”) and shall deposit with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be deemed to constitute evidence that the unpaid principal amount of the Note is immediately due and payable), and such receipts and evidence of any expenditures made that are additionally secured hereby as Trustee may require. Heritage-Cliffs Deed of Trust 10 (4 Upon receipt of such notice from the Beneficiary, Trustee shall cause to be recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse of such time as may then be required by law and after recordation of such Notice of Default and Election to Sell and after Notice of Sale having been given as required by law, sell the Security, at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate lots or parcels or items as Trustee shall deem expedient and in such order as it may determine unless specified otherwise by the Trustor according to California Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of the United States payable at the time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient deed or deeds conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed or any matters of facts shall be conclusive proof of the truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary, may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such purchaser or purchasers. (b) After deducting all reasonable costs, fees and expenses of Trustee, including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other amounts owed to Beneficiary under the Loan Documents; (iii) all other sums then secured hereby; and (iv) the remainder, if any, to Trustor. (c) Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter, and without further notice make such sale at the time fixed by the last postponement, or may, in its discretion, give a new Notice of Sale. 7.5 Receiver. If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of right and without further notice to Trustor or anyone claiming under the Security, and without regard to the then value of the Security or the interest of Trustor therein, shall have the right to apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice of any application therefor. Any such receiver or receivers shall have all the usual powers and duties of receivers in like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided herein, and shall continue as such and exercise all such powers until the date of confirmation of sale of the Security, unless such receivership is sooner terminated. 7.6 Remedies Cumulative. No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of Trust is intended to be exclusive of any other right, power or remedy, but each and every such right, power and remedy shall be cumulative and concurrent and shall be in addition to any other right, power and remedy given hereunder or now or hereafter existing at law or in equity. Heritage-Cliffs Deed of Trust 11 7.7 No Waiver. (a) No delay or omission of the Beneficiary to exercise any right, power or remedy accruing upon any Event of Default shall exhaust or impair any such right, power or remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. No consent or waiver, expressed or implied, by the Beneficiary to or any breach by the Trustor in the performance of the obligations hereunder shall be deemed or construed to be a consent to or waiver of obligations of the Trustor hereunder. Failure on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, irrespective of how long such failure continues, shall not constitute a waiver by the Beneficiary of its right hereunder or impair any rights, power or remedies consequent on any Event of Default by the Trustor. (b) If the Beneficiary (i) grants forbearance or an extension of time for the payment of any sums secured hereby, (ii) takes other or additional security or the payment of any sums secured hereby, (iii) waives or does not exercise any right granted in the Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the granting of any easement or other right affecting the Security, or (iv) makes or consents to any agreement subordinating the lien hereof, any such act or omission shall not release, discharge, modify, change or affect the original liability under this Deed of Trust, or any other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co- signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or omission preclude the Beneficiary from exercising any right, power or privilege herein granted or intended to be granted in any Event of Default then made or of any subsequent Event of Default, nor, except as otherwise expressly provided in an instrument or instruments executed by the Beneficiary shall the lien of this Deed of Trust be altered thereby. 7.8 Suits to Protect the Security. The Beneficiary shall have power to (a) institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Security and the rights of the Beneficiary as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its interest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or compliance with any legislation or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, rule or order would impair the Security thereunder or be prejudicial to the interest of the Beneficiary. 7.9 Trustee May File Proofs of Claim. In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, the Beneficiary, to the extent permitted by law, shall be entitled to file such proofs of claim and other documents as may be necessary or advisable in order to have the claims of the Beneficiary allowed in such proceedings and for any additional amount which may become due and payable by the Trustor hereunder after such date. Heritage-Cliffs Deed of Trust 12 7.10 Waiver. The Trustor waives presentment, demand for payment, notice of dishonor, notice of protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in taking any action to collect any sums owing under the Note or in proceedings against the Security, in connection with the delivery, acceptance, performance, default, endorsement or guaranty of this Deed of Trust. ARTICLE 8 MISCELLANEOUS 8.1 Amendments. This instrument cannot be waived, changed, discharged or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor. 8.2 Reconveyance by Trustee. Upon written request of Beneficiary stating that all sums secured hereby have been paid or forgiven, and upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment by Trustor of Trustee’s reasonable fees, Trustee shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto. 8.3 Notices. If at any time after the execution of this Deed of Trust it shall become necessary or convenient for one of the parties hereto to serve any notice, demand or communication upon the other party, such notice, demand or communication shall be in writing and shall be served personally or by depositing the same in the registered United States mail, return receipt requested, postage prepaid and (1) if intended for Beneficiary shall be addressed to: City of Carlsbad Housing and Community Development Department 2965 Roosevelt Street Carlsbad, CA 92008-2389 Attn: Housing and Redevelopment Director and (2) if intended for Trustor shall be addressed to: Her&age-Cliffs, LLC Philip Jones, President c/o Her&age West Development Company 2420 Grand Avenue, Suite G2 Vista, CA 92083 Any notice, demand or communication shall be deemed given, received, made or communicated on the date personal delivery is effected or, if mailed in the manner herein specified, on the delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either party may change its address at any time by giving written notice of such change to Beneficiary or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the date such change is desired to be effective. Heritage-Cliffs Deed of Trust 13 8.4 Successors and Joint Trustors. Where an obligation is created herein binding upon Trustor, the obligation shall also apply to and bind any transferee or successors in interest. Where the terms of the Deed of Trust have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be deemed to be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than one entity or person, all obligations of Trustor shall be deemed to be a joint and several obligation of each and every entity and person comprising Trustor. 8.5 Captions. The captions or headings at the beginning of each Section hereof are for the convenience of the parties and are not a part of this Deed of Trust. 8.6 Invalidity of Certain Provisions. Every provision of this Deed of Trust is intended to be severable. In the event any term or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of the terms and provisions hereof, which terms and provisions shall remain binding and enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or partially secured portion of the debt, and all payments made on the debt, whether voluntary or under foreclosure or other enforcement action or procedure, shall be considered to have been first paid or applied to the full payment of that portion of the debt which is not secured or partially secured by the lien of this Deed of Trust. 8.7 Governing Law. This Deed of Trust shall be governed by and construed in accordance with the laws of the State of California. 8.8 Gender and Number. In this Deed of Trust the singular shall include the plural and the masculine shall include the feminine and neuter and vice versa, if the context so requires. 8.9 Deed of Trust, Mortgage. Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and any reference to a deed of trust shall also refer to a mortgage. 8.10 Actions. Trustor agrees to appear in and defend any action or proceeding purporting to affect the Security. 8.11 Substitution of Trustee. Beneficiary may from time to time substitute a successor or successors to any Trustee named herein or acting hereunder to execute this Trust. Upon such appointment, and without conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties conferred upon any Trustee herein named or acting hereunder. Each such appointment and substitution shall be made by written instrument executed by Beneficiary, containing reference to this Deed of Trust and its place of record, which, when duly recorded in the proper office of the county or counties in which the Property is situated, shall be conclusive proof of proper appointment of the successor trustee. Heritage-Cliffs Deed of Trust 14 8.12 Statute of Limitations. The pleading of any statute of limitations as a defense to any and all obligations secured by this Deed of Trust is hereby waived to the full extent permissible by law. 8.13 Acceptance by Trustee. Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is made public record as provided by law. Except as otherwise provided by law the Trustee is not obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee. IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and year first above written. TRUSTOR: Heritage-Cliffs, LLC, a California limited liability company By: Phillip M, Jones, President Heritage-Cliffs Deed of Trust 15 STATE OF CALIFORNIA ) ) ss COUNTY OF ) On , before me, , 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. Heritage-Cliffs Deed of Trust 16 EXHIBIT A (Legal Description) The land is situated in the State of California, City of Carlsbad, County of San Diego, and is described as follows: Heritage-Cliffs Deed of Trust 17 EXHIBIT D FORM OF ELIGIBLE BUYER NOTE NOTICE TO BORROWER: THIS NOTE IS NOT ASSUMABLE PROMISSORY NOTE Secured by Deed of Trust $ Carlsbad, California ) 199- FOR VALUE RECEIVED, the undersigned (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, or such other place as the City may designate in writing, the principal sum of $ , plus Contingent Interest calculated pursuant to Section 3 below. 1. Purpose of Loan. Borrower is purchasing the Residence located at in the City of Carlsbad. This Note evidences a seller carryback loan made by the Seller of the Residence (the “Seller”) to the Borrower, 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 fulfilhnent of the inclusionary housing obligations of the Seller pursuant to City Ordinance No. NS-232 and an Affordable Housing Agreement between the Seller and the City dated , 199-. 2. Definitions. The terms set forth in this Section shall have the following meanings in this Note. (4 “Appreciation Amount” shall mean the amount calculated by subtracting the total original purchase price of the Residence paid by the Borrower, which was Dollars ($ ), 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 12 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. Amount set out?! Section 4. “Contingent Interest” shall mean the percentage of the Appreciation (c) “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 Heritage-Cliffs Borrower Note 1 three-month period. The cost of the appraisal shall be shared equally by the City and 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. 6-9 “First Mortgage” shall mean the promissory note and deed of trust evidencing and securing the first mortgage loan for the Residence. (4 “Residence” shall mean the housing unit and land encumbered by the deed of trust executed in connection with this Note. (0 “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 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) by the Borrower into an inter vivos trust in which the Borrower is the beneficiary; or (v) by deed of trust or imposition of a lien subordinate to the Deed of Trust, 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 and the Borrower shall provide written notice of such transfer to the Agency pursuant to Section 13 below. 3. This Note is secured by a second deed of trust dated the same date as Security. this Note (the “Deed of Trust”). 4. Contingent Interest. The Borrower shall pay contingent interest equal to percent ( %) 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 7(c) below, unless forgiven by the City pursuant to Section 7(d) below. Borrower acknowledges, that the calculation of the percentage amount of the Contingent Interest includes a credit to Borrower for capital improvements Borrower may make to the Residence. 5. The Term of this Note shall mean the period commencing on the date of Term. this Note and expiring on the date fifteen (15) years thereafter. 6. Owner-Occunancv Reauired: Representations Regarding Income. (4 The Borrower is required to occupy the Residence as his or her principal place of residence, and failure by the Borrower to comply with this requirement shall be a default under this Note. The Borrower shall be considered as occupying the Residence if the Borrower is living in the Residence for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Residence as his or her principal place of residence. The Borrower shall not lease the Home to another party. Any lease of the Residence shall be a default under this Note. Heritage-Cliffs Borrower Note 2 @I Borrower hereby certifies that all income information previously submitted to the Seller and/or the City is true and correct. Misrepresentation by Borrower of income information provided to the Seller and/or the City shall be a default under this Note. 7. Renavment. (a) Repayment of the principal amount of this Note shall be deferred for the first five years from the date of this Note. At the end of five (5) years, the Borrower shall begin making monthly repayments of principal in the amount of Dollars ($ ) based on a ten (10) year principal repayment schedule and due and payable on the first day of each calendar month commencing ,20 -- (b) In the event that, during the five (5) year deferral period described above, the Borrower encumbers the Residence with a junior deed of trust securing a loan under which payments are not deferred until full repayment of this Note (a “Junior Deed of Trust”), the Borrower shall commence to make monthly payments to the City in an amount sufficient to amortize the unpaid principal balance of this Note over the remaining Term of this Note, provided, however, that during the Deferral Period such payments shall be limited to an amount which, when added to the payments on the First Mortgage and the note secured by the Junior Deed of Trust, will not exceed thirty three (33%) of the Borrower’s original qualifying income for the First Mortgage. At the expiration of the Deferral Period, payments shall be in an amount sufficient to amortize the unpaid principal balance of this Note over the remaining Term of this Note and there shall be no limitation of such payment based on payments on any other loans. All monthly payments required to be made pursuant to this Section 7(b) shall commence on the first day of the month following the month in which a Junior Deed of Trust is recorded in the Official Records of the County of San Diego. (c) The total amount of the principal and any Contingent Interest owed under this Note shall immediately become due and payable (i) in the event of a default by the Borrower under this Note, 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. Cd) In the event, upon expiration of the Term, (i) no Transfer has occurred, (ii) Borrower has repaid all principal pursuant to subsections (a) or (b) above, (iii) Borrower continues to owner-occupy the Residence, and (iv) Borrower is not in default hereunder or under the Deed of Trust, the City shall forgive repayment of all Contingent Interest due hereunder. 8. Prenavments. 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. 9. No Assumntion 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 Agency to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. Heritage-Cliffs Borrower Note 3 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. 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 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 term of the refinanced loan is not shorter than the term of the original First Mortgage. 12. Certification of Purchase Price on Transfer. Upon any sale of the Residence, the Borrower shall submit to the City at least fifteen (15) days prior to the close of escrow, a copy of the sales contract and a written declaration, under penalty of perjury, from the Borrower and the proposed purchaser in a form acceptable to the City stating the gross sales price of the Residence. The certification shall also provide that the proposed purchaser or any other party has not paid and will not pay to the Borrower, and the Borrower 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. 13. Notice to Citv of Transfers. Borrower shall provide the City with written notice of any sale, assignment or transfer, voluntary or involuntary, of any interest in the Residence, including, but not limited to, encumbrance of the Residence with a Junior Deed of Trust or transfer of the Residence to a spouse or trust. 14. Default. 69 The Borrower shall be in default under this Note if he or she is in default under the First Mortgage following the expiration of First Mortgage cure periods, or if, after the notice and cure period provided by the City to the Borrower pursuant to the notice and cure provisions of the Deed of Trust, the Borrower (i) fails to pay any money when due under this Note; (ii) breaches any representation or covenant made in this Note in any material respect; or (iii) breaches any provision of the Deed of Trust. 09 Upon the Borrower’s breach of any covenant or agreement of the Borrower in this Note 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 19, 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. 15. Acceleration. Upon the occurrence of a default under this Note, 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 Heritage-Cliffs Borrower Note 4 waiver of the City’s right to declare a default and exercise all of its rights under this Note 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. 16. 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. 17. 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. 18. No Waiver bv the City. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure of the City to take action with respect to such breach, default or failure or from any previous waiver of any similar or unrelated breach, default or failure. 19. 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 19. Heritage-Cliffs Borrower Note 5 .I 20. 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. 21. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California. 22. Assknment bv Citv. 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. 23. 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. 24. Entire Agreement. This Note (along with the Deed of Trust) sets forth the entire understanding and agreement of the City and the Borrower and any amendment, alteration or interpretation of this Note must be in writing signed by both the City and the Borrower. BORROWER (Print Name) (Print Name) Heritage-Cliffs Borrower Note 6 PROMISSORY NOTE CITY OF CARLSBAD ADMINISTRATIVE COVER SHEET (Remove Upon Completion) BLANK LINES: CHECKLIST Amount of City Loan, p. 1, upper left Date of Document, p. 1, upper right Borrower’s Name, p. 1, first paragraph Amount of City Loan, p. 1, first paragraph Street Address of Residence, p. 1, Section 1 Original Purchase Price of Residence, p. 1, Section 2(a) Contingent Interest Percent, p. 2, Section 4 Monthly Repayment Amount, p. 3, Section 7(a) Date Monthly Repayment Commences, p. 3, Section 7(a) Signatures, p. 8 EXHIBIT E FORM OF ELIGIBLE BUYER DEED OF TRUST - RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Carlsbad City Clerk’s Office Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad, CA 92008 (Spacej NOTE TO BORROWER: THIS DEED OF TRUST CONTAINS PROVISIONS PROHIBITING ASSUMPTIONS DEED OF TRUST AND SECURITY AGREEMENT THIS DEED OF TRUST AND SECURITY AGREEMENT (“Deed of Trust”) made as of this day of , 1999, among (“Borrower”) as trustor, and (“Trustee”), and the City of Carlsbad, a municipal corporation (the “City”), as beneficiary. The Borrower, in consideration of the promises herein recited and the trust herein created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of sale, the property located in the City of Carlsbad, State of California, described in the attached Exhibit T,A1T (the “Property”). TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities conducted therein, similar to the one herein described and referred to, and all renewals or replacements thereof or articles in substitution therefore, whether or not the same are, or shall be attached to said building or buildings in any manner; and all of the foregoing, together with the Property, is herein referred to as the “Security”; To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the City the repayment of the sums evidenced by a promissory note executed by the Borrower to the City dated ,19-, in the amount of Dollars ($ ) (the “Note”); Heritage-Cliffs Borrower D.O.T. 1 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 the performance of any obligations of Borrower in any other agreements with respect to the financing of the Property or the Security the failure of which would adversely affect Beneficiary, whether or not Beneficiary is a party to such agreements. BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS: 1. Borrower’s Estate. That the Borrower is lawmlly 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 that deed of trust executed by the Borrower in connection with a loan made to the Borrower by or its successors and assigns (the “First Lender”), dated 3 19 executed by the Borrower in favor of First Lender, and recorded in the County of San Dzgo on 3 19-T 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. The Borrower agrees to warrant and defend generally the title to the Security against all claims and demands, subject to any declarations, easements or restrictions listed in a schedule of exceptions to coverage in any title insurance policy insuring the City’s interest in the Security. (As used in this Deed of Trust, the term “First Lender” shall include all successors and assigns of the First Lender.) 2. Renavment of Loan. The Borrower will promptly repay, when due, the principal and interest required by the Note. The Note contains the following provisions concerning repayment of the loan under certain conditions: 3. No Assumntion 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 Agency to assist in the purchase of homes by lower income persons. Consequently, this Note is not assumable by transferees of the Residence, but is due in full upon Transfer. 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. 5. Owner-Occunancv Reauired. The Borrower shall occupy the Property as his or her principal place of residence. The Borrower shall be considered as occupying the Property if the Borrower is living in the unit for at least ten (10) months out of each calendar year. The Borrower shall provide an annual written certification to the City that the Borrower is occupying the Property as his or her principal place of residence. 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. Heritaae-Cliffs Borrower D.O.T. 2 7. Hazard Insurance. The Borrower will keep the Security insured by 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 Mat, the United States Department of Housing and Urban Development, the United States Department of Veterans Affairs, or successors thereto. All insurance policies and renewals thereof will be in a form acceptable to the City and will include a standard mortgagee clause with standard lender’s endorsement in favor of the holder of the First Lender Note and the City as their interests may appear and in a form acceptable to the City. The City shall have the right to hold, or cause its designated agent to hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or its designated agent, the original insurance policies or certificates of insurance, all renewal notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt notice to the insurance carrier and the City or its designated agent. The City, or its designated agent, may make proof of loss if not made promptly by the Borrower. The City shall receive thirty 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. 8. Preservation and Maintenance of Securitv. The Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 9. Protection of the Citv’s Securitv. If the Borrower fails to perform the covenants and agreements contained in this Deed of Trust, 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 Heritaae-Cliffs Borrower D.O.T. 3 67 but not limited to, disbursement of reasonable attorney’s fees and entry upon the Security to make repairs. Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and City agree in writing to other terms of payment, such amount will be payable upon notice from the City to the Borrower requesting payment thereof, and will bear interest from the date of disbursement at the lesser of ten 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. 10. Insnection. 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. 11. Forbearance bv the Citv 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. 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. 12. Remedies Cumulative. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 13. Successors and Assigns Bound. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the City and the Borrower subject to the provisions of this Deed of Trust. 14. Joint and Several Liabilitv. All covenants and agreements of the Borrower shall be joint and several. 15. Notice. Except for any notice required under applicable law to be given in another manner, all notices required in this Deed of Trust shall be sent by certified mail, return receipt requested or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was returned as undeliverable as follows: To the Owner: At the address of the Residence. To the City: City of Carlsbad Housing and Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Attn: Housing and Redevelopment Director The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. Heritaae-Cliffs Borrower D.O.T. 4 16. Controlling; Law. This Deed of Trust shall be construed in accordance with and be governed by the laws of the State of California. 17. Invalid Provisions. If any one or more of the provisions contained in this Deed of Trust 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 and the Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Deed of Trust or the Note. 18. Captions. The captions and headings in this Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. 19. Default: Remedies. Upon the Borrower’s breach of any covenant or agreement of the Borrower in 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, 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. 20. Acceleration. Upon the occurrence of a default under the Note, 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 Heritaae-Cliffs Borrower D.O.T. 5 - the Note 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. 21. 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 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 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. 22. Reconvevance. Upon payment or forgiveness 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. 23. Substitute Trustee. The City, at the City’s option, may from time to time remove the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by applicable law. 24. Subordination to First MortPae. 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 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. Heritaae-Cliffs Borrower D.O.T. 25. Attomev’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 (Print Name) Borrower (Print Name) Heritaae-Cliffs Borrower D.O.T. EXHIBIT A Property Description STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO “) On , 199-, before me, , 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. STATE OF CALIFORNIA ) 1 COUNTY OF SAN DIEGO “) On , 199-, before me, , 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. 73 DEED OF TRUST AND SECURITY AGREEMENT CITY OF CARLSBAD ADMINISTRATIVE CHECKLIST (Remove Upon Completion) BLANK LINES: CHECKLIST Date of Document, p. 1, first paragraph Borrower’s Name, p. 1, first paragraph Trustee’s Name, p. 1, first paragraph Date and Amount of Promissory Note, p. 2, second full paragraph First Lender’s Name, p. 2, Section 1 Date of First Lender’s Deed of Trust, p. 2, Section 1 Recording Information for First Lender’s Deed of Trust, p. 2, Section 1 Signatures, p. 9 Include Exhibit A, Property Description Notary . EXHIBIT F FORM OF BORROWER DISCLOSURE STATEMENT 75 BORROWER DISCLOSURE STATEMENT FIRST-TIME HOMEBUYER THE CLIFFS AT CALAVERA HILLS ASSISTANCE PROGRAM The City of Carlsbad (the “City”), through its Inclusionary Housing Ordinance, has required the developer of The Cliffs at Calavera Hills to sell the homes in the development to qualified households under terms that make the home affordable to you and the other new homebuyers. The City has also provided financial assistance to the developer to assist in making the Cliffs at Calavera Hills homes affordable. Your new home is affordable to you because the City and the developer are providing you with second mortgage financing through the Cliffs at Calavera Hills Homebuyer Assistance Program (the “Program”) so that you will be able to buy your home. The City offers the Program in order to enable low income households to own their own homes in Carlsbad. As a condition of the financing, the City will require you to sign a Promissory Note and a Deed of Trust. The Deed of Trust will be recorded against vour m-ooertv. This Disclosure Statement explains the major provisions of the Promissory Note and the Deed of Trust to help you understand their requirements. You should, of course, read all of the City loan documents yourself and become completely familiar with them. A. PRIMARY RESIDENCE AND LEASING YOUR HOME Under the terms of the Promissory Note and Deed of Trust, the house you buy with the assistance of the City loan must be your main place of residence. This means you must live in the house no less than 10 months out of each calendar year. Each year, you must certi@ in writing to the City that you are living in your home as your main place of residence. In addition, you cannot lease your home. If you fail to follow these provisions, you are considered to be in default, and the City may declare its loan immediately due and payable. B. NOTICES TO CITY 1. Notice of Intent to Sell. Assim or Transfer. If you decide to sell, assign or transfer your home or any partial interest in your home, or if you record a mortgage or deed of trust against your home, you must let the City know in writing at least fifteen (15) days prior to the sale, assignment, transfer, or the recording of a mortgage. 2. Notice and Certification of Purchase Price. If you go to sell your home, at least fifteen (15) days before the sale closes (close of escrow), you must give the City a copy of the sales contract and a written statement that declares, under penalty of perjury, the gross sales price of the home. The written statement must be signed by both you (as seller) and the proposed Heritage-Cliffs Borrower Disclosure 1 buyer. The written statement must also certify that the proposed buyer, or any other party, has not paid and will not pay to you money or any other consideration that is not set out in the sales contract for the home. The statement must also certify that you (as the seller) have not received and will not receive from the proposed buyer, or anybody else, money or other consideration that is not included in the sales contract. 3. Deliverv of Reauired Notices. Any notice you must provide to the City under the terms of the City loan documents must be sent by certified mail, return receipt requested, or express delivery service with a delivery receipt, or personally delivered with a delivery receipt obtained. C. INTEREST ON THE CITY LOAN: “CONTINGENT INTEREST” The City loan charges “contingent interest”. The contingent interest represents the benefit you received from the City loan, and may generally be described as the percentage of the sales price that the City loaned to you, with an adjustment or discount applied. The contingent interest on your loan is due immediately if: . You default under the City loan or the First Mortgage, or . You sell or transfer title to your home, or . The end of the term of your loan is reached, with exceptions (see section E. below) The contingent interest on your City loan has three (3) parts: (1) Appreciation Amount; (2) Contingent interest percentage; and (3) Automatic 25% discount to account for any improvements you may make to the house. An example is used to show each of the three (3) parts and how each would be calculated. Example 1 Your loan from the City is $18,200. The original sales price you paid for your home was $140,000. When you sell, the sales price is $173,600. 1. Annreciation Amount. The appreciation amount is generally the difference between the original sales price you paid for the home and the price at which you sell it. For example: Price of House When You Sell: Minus $173,600 Price of House When You Bought: - $140,000 Appreciation Amount: $33,600 Heritage-Cliffs Borrower Disclosure 2 77 The appreciation amount is calculated differently under certain circumstances. If you (a) prepay your City loan, or (b) transfer your home by means other than selling it, or (c) are in default under the terms of the City loan, the appreciation amount will be figured by using the Fair Market Value of the home (instead of the price of house when you sell, as above). Fair Market Value is the value of the home as determined by an independent appraiser chosen by the City. If such an appraisal is necessary, the cost of the appraisal would be paid by you. If a creditor takes title to your home, the appreciation amount will be figured by using the amount paid for the home at the creditor’s sale. 2. Contingent Interest Percentage. The contingent interest percentage is the percentage of the sales price that the City loaned to you. This percentage is figured by dividing the amount of the City loan by the purchase price you paid for the home. Continuing with the example: City Loan Amount: $18,200 Divided By Price of House When You Bought: + $140,000 Contingent Interest Percentage 13% 3. Automatic Discount For Possible Canital Imnrovements. During the time that you live in your home, you may make improvements to it that will increase its value. For example, you may put in a new central heating system or update the bathroom. To recognize the possibility that you have invested in improvements which have contributed to an increase in value beyond the increase due to a rise in the general real estate market, the contingent interest on the City loan provides for a 25% discount. This discount is given automatically, even if you have not made any improvements. Continuing with the example, the discount for capital improvements reduces the contingent interest owed the City as follows: Appreciation Amount: $ 33,600 Multiplied By Contingent Interest Percentage x .13 Multiplied By 4,368 Automatic Discount X .25 Total Dollar Amount of Discount $ 1,092 $ 4,368 1,092 Contingent Interest You Owe City $ 3,276 Heritage-Cliffs Borrower Disclosure The automatic capital improvement discount shall be calculated by the City as set out in the Promissory Note under Section 4. “Contingent Interest”. The result is the same as with the calculation above. A mathematical step has been eliminated. Appreciation Amount: $ 33,600 Multiplied By Contingent Interest Percentage x .13 $ 4,368 Automatic Discount Applied .75 Contingent Interest You Owe City $ 3,276 D. PAYING BACK YOUR CITY LOAN 1. No Pavments Reauired for 30 Years Unless You Sell, Transfer. or Default. Your loan from the City is a “deferred” loan. This means that you do not have to make payments on your loan for the entire 30 year term. If, however, at any time you sell, assign or transfer the home or if you break the terms of the loan documents, both the principal and contingent interest owed on the loan will be immediately due and payable. The refinancing of your first mortgage loan does not trigger immediate payment of principal and contingent interest if the refinancing meets the terms of Promissory Note (as described in section F. below). 2. When You Sell Your Home. When you sell, transfer, or assign your home or any interest in it, the principal and contingent interest owing is immediately due and payable. The only times when this is not the case is when a transfer is to an existing husband or wife who signed the Promissory Note, to a husband or wife who then becomes a co-owner of the home, to a husband or wife as part of a marriage or a divorce, to an inter vivos trust in which you are the beneficiary, or to a husband, wife, or child upon death of the borrower. Example 2 shows the repayment process for the City loan when the house is sold. Example 2 You have lived in your home for 8 full years and now must sell it because you received a promotion to a job in another state. You bought your home for $140,000. The City provided you with a loan of $18,200 to help you buy your house. The sales price of your home is 200,000. (a) Amount of PrinciDal Owed Uwon Sale. Since the City Loan is a deferred loan, and you have made no payments during the time you have held the loan, the full amount of principal must be repaid to the City at the time of sale. In this example, the principal amount due is $18,200. Heritage-Cliffs Borrower Disclosure (b> Amount of Contingent Interest Owed. To figure out the amount of contingent interest you owe the City, we need to calculate the appreciation amount and the contingent interest percentage, and then apply the automatic discount. Calculatinp the ADDreciation Amount Sales Price of Your Home: $200,000.00 Price You Originally Paid: $140,000.00 Appreciation Amount $60,000.00 Calculatinp the Continpent Interest PercentaPe Your City Loan x Price You Originally Paid: Contingent Interest Percentage $18,200 + $140,000 = .13 = 13% Calculating Contingent Interest Owed With Discount ADDlied) Appreciation Amount: Multiplied By Contingent Interest Percentage Multiplied By Automatic Discount Contingent Interest Owed City $60,000.00 X .13 $ 7,800.OO X .75 $ 5,850.OO Total You Owe Citv Won Sale of the Home Principal Owed: Contingent Interest: $ 18,200.OO $ 5,850.OO Total Owed $24,050.00 E. POTENTIAL FORGIVENESS OF CONTINGENT INTEREST Under the terms of the Promissory Note, the contingent interest on your loan is due at the end of the 30-year loan term. However, you will not have to pay the contingent interest at the end of the loan term if you meet all of the following conditions: (1) You live in your home and there has been no sale or transfer during the entire 30 year term, and Heritage-Cliffs Borrower Disclosure 5 (2) You have repaid all of the principal you owe the City, and (3) You are not in default under the City loan. F. REFINANCING FIRST MORTGAGE LOAN The Promissory Note allows you to refinance your first mortgage loan without triggering repayment of your City loan if the following conditions are met. The refinancing must be approved by the City. The amount received from the refinancing can be no more than the remaining principal amount of your first mortgage plus reasonable closing costs of the refinancing. The refinance cannot result in higher monthly payments on the first mortgage loan than were due before the refinancing. If these conditions are not met, principal and contingent interest on your City loan must be paid to the City when you refinance. G. DEFAULT PROVISIONS When you accept City loan assistance, you agree to meet all of the conditions of all of the City loan documents. If you violate any provisions of the documents, you are considered to be in default under your City loan. Also, if you default under the first mortgage loan, you would also be considered to be in default under the City loan. If you do not correct the violation, the City could require you to immediately repay the principal and contingent interest owing on the City loan. The City could also go to court and get a court order to enforce the provisions of the City loan documents, which may result in a foreclosure on your home. ************** Please sign the enclosed copy of this Borrower Disclosure Statement in the space provided below and return it to the City at , Carlsbad, California. I have read and understand the above Borrower Disclosure Statement. By: Dated: Signature of Borrower Print Name of Borrower By: Signature of Borrower Dated: Print Name of Borrower Heritage-Cliffs Borrower Disclosure 6 EXHIBIT G DEVELOPMENT BUDGET ExY5t 3 2 1 ; : e . , j I r . - 1 2 f i P c ; E L 2 ! l9'te (It, i I _ 0; ' 2; % c? $1 8 di "! 10 I I j e\u? w ( -!- 31 ' -r' $1 $i 4 . c , , 8 1 L c 6 < < E L P b : c f L 2 I : d x < 5 I n c ' z: 0 c)* -/ a; c 9,u+696 T $1 / ! --I-. i' E ! 2 c ;g' 2 13 :J ;; ;o ;k i i r Ok-F ilLcfl‘ !OO k-02 ; g gig ;I 0 -lit- - T ,I/ ), “I I( -- , G 1. i 4 < I : 1 ’ < : . -r c t i c I$ u ii 7 i i 1 z? $ I i gi cri! a eu ’ P f T :! b9u ‘:: w ! a : #s,H ’ n s s 7” et4 ai -- *i .._r . $2 e : u I iv) !i! :: g :g ia : s - t 01; r’ mOowu(3X --7YJZZO aurrml-33 3‘> q.-: 0 0 8: I I d c -i Ii / I, 1 I j j /M Y !- I II: # / ; i 1 ? -/ I -L : I; 51 : (1 I 5’ ii 1 , j( 1 +I’ T 1 : ~ lc I: ‘ij I- I I c I- IC I0 (< F v I t ; I : j 1 , c 1 ; ic 1 6 ; : . c 1 6 I 1 < C 0 ' c d c 3 k _- 5 i I i; I ! 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( f i : f : . C 6 : . I b s : : b ; : : R 5 7 3 5 3 1 . ; f I) > -. 3 c R 3 c 9 ? E d 5 E ‘Z : ;cz 1 E 4 ii ;Ei r w c 9 - z : 9 t - 9 .--__ r 9 t [s 5 ‘I ? i ,z 6 : Q. B 4. IS 65. : Ll ?’ > 1 I I I \ , , I I Rfl 1 , I i)f 3 < : i li z ‘2 .c t Y ?C i z I : )C I ;:: c 8; dt : 2: tRft 2: =? ( NC b9f I 2: b9f _- t z: k+f z: I *f)i z: . t I f i d L -1 2 1 E P . R 6 2 E : T R Y f c c R e s x R e 5 T 9 (t 7 a 5 .F m 6 ‘5 .” ; E rJ E ii 0 30, gz - a -CO >T -h f . ; b : I L s i . f i j : - i i I ! - ; ; : L 3 : c 6 C : r , 4 , t . 1 t : L P . : , , - - I I I , - L>hibit 4 a The C3ty of CazX~Eaad Housixz~ & Redeudopment Depax-tment AREPORT TO THE HOUSING+ aOMMISSXON Btafi: Craig Ruiz Mana@snent JLnalymt XITEM NO. 2 DATE: FEBRUARY 12,1998 SUBJECT: CALAVERA HILLS VILLAGE L-l - RECOMMENDATION OF APPROVAL TO THE CITY COUNCIL TO PROVIDE $75,000 IN FINANCIAL ASSISTANCE FOR THE CONSTRUCTION OF FIVE, FOR SALE, AFFORDABLE FOUR BEDROOM SINGLE FAMILY DETACHED UNITS IN ORDER TO SATISFY THE REQUIREMENTS OF THE INCLUSIONARY HOUSING ORDINANCE FOR THE DEVELOPMENT OF 35 RESIDENTIAL UNITS IN VILLAGE L-l OF THE CALAVERA HILLS MASTER PLAN. I. RECOMMENDATION That the Housing Commission ADOPT Resolution No. 98-003 recommending APPROVAL to the City Council to provide $75,000 in financial assistance from the Housing Trust Fund to Heritage Builders, Inc., for construction of five, for sale, affordable four bedroom single family detached units fee in order to satisfy the requirements of the Inclusionary Housing Ordinance for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. II. PROJECT BACKGROUND On September 11, 1997, the Housing Commission recommended approval of the construction of the site development plan for five affordable units to the Planning Commission. At the September meeting, the applicant had not requested financial assistance for the project. Subsequent to that meeting, the applicant determined that financial assistance is necessary to develop the affordable housing product, as approved. III. PROTECT DESCRIPTION The project is located on the northwest corner of Harwich Drive and future Edgeware Way in the Calavera Hills Master Plan. The affordable units will be distributed throughout the project and are to be developed concurrently with the market units. Each unit will contain 1,330 square feet of living space, 4 bedrooms and a two-car garage. The five affordable for-sale units in Village L-l will be restricted and affordable to households with incomes not exceeding 80% of the area median. CALAVERA HILLS VILLAGE L-l FEBRUARY 12,1998 PAGE 2 Iv. FINANCIAL The developer has made a request for financial assistance to support the sale of the five units at affordable prices. The Affordable Housing Policy Team is recommending that financial assistance be provided in the amount of $15,000 per unit or a total of $75,000. The following factors were considered in arriving at this recommendation. A. Development Team It is important that the developer have the capacity to successfully implement the proposed project. Although the developer is not experienced with assisted for-sale development, the team is experienced and has been successful in developing conventional homeownership projects. B. Cost Reasonableness The developer has provided detailed proforma development cost information for review by staff and the Housing Commission (See Attachment 5). Since development costs are one of the key variables deter mining the need for subsidies, it is important that those costs be reasonable. At $207,000, including land but no profit, these average unit costs are consistent with typical development within the City. C. Undue Gain It is important that any financial assistance have the effect of making the units more affordable and not creating undue gain for any party. In the proposed affordable project there is no developer return or profit factored into the project proforma and there are no other incentives tied to either the market or affordable projects which would create any gain for the developer. D. Subsidy Analvsis With projected costs and a known restricted purchase price based on the maximum household incomes, it is possible to determine the estimated level of subsidy required to develop and sell the affordable units. With this subsidy estimate, an amount of City assistance is recommended which effectively “leverages” the City’s housing funds. Leveraging is defined as the ratio of City subsidy to subsidy provided from other sources. The following chart estimates the required subsidy for the affordable project and shows the recommended level of City assistance and developer subsidy necessary for the project to be feasible. - CALAVERA HILLS VILLAGE L-l FEBRUARY 12,1998 PAGE 3 PROFORMA SUBSIDY ANALYSIS CALAVERA HILLS -VILlAGE L-l (Per Unit Average) COST: IAND OTHER TOTAL MAXIMUM PURCHASE PRICE** HOMEBUYER INCOME HOMEBUYER INCOME 80% AMI* 70% AMI* (MAX/MUM ALLOWABLE) (MAXMUM ALLOWABLE) $66,000 $66,000 141,000 141,000 $207,440 $207,440 $141,950 $121,990 SUBSIDY REQUIREMENT (Including Land) SUBSIDY SOURCES ‘As;~i~tari”Ce ,,,j),:,; ,: Developer Subsidy (Including Land) ($ 65,490) ($ 85,450) ,,: ‘$ ,5;ooo ‘!,. ” I, ‘, ‘$ ‘15;OOO :. ,I! , $ 50,490 $ 70,450 CITY LEVERAGE $3.3: $1 $4.7: $1 * AMI = Area Median Income, San Diego County * * Based on housing cost of 30% of income for household sizes of 7.5 (4 bedrooms) The Subsidy Analysis shows estimated subsidy needs for two levels of homebuyer income. Eighty percent (80%) of Area Median Income (AMI) is the maximum allowed income and is used to determine the maximum allowed purchase price. However, actual buyers will have incomes below 80% AMI, therefore, 70% AM1 is used to illustrate the subsidy requirement based on the realistic actual average incomes of buyers. Based on 70% of AM1 the recommended level of City assistance would provide $1 of subsidy for each $4.70 from the developer or some other outside source (leverage of 4.7: 1). Although this is a lower level of leveraging than rental projects such as Villa Loma and Laurel Tree Apartments, staff believes it is acceptable for a homeownership project where there are no “deep subsidy” funding programs available to assist in production. CALAVERA HILLS VILLAGE L-l FEBRUARY 12,1998 PAGE 4 E. Form of Assistance City as well as developer assistance would be provided in the form of funds which are first used for construction and then for deferred (no payment for a period of time) financing for the actual homebuyer. This subsidy financing is structured as loan which is repaid to the City upon resale of the unit. Any real appreciation is shared between the City and the homebuyer based on the contribution to the initial purchase. No “windfall” comes to the subsidized buyer. City assistance will be structured to provide for a reduction in the amount of assistance if the proceeds from the sale of the affordable units exceeds their actual cost, not including the land value. F. Securitv As indicated, the City takes a security interest in each property. Because the amount of City assistance is only a portion of the total subsidy, the City will have a significant “cushion” of equity protecting its actual cash loan. G. Risks I The two major types of risk in this for-sale development are construction risk (units do not get built) and market risk (units do not sell). In addition, it is likely that any City financial assistance will be subordinated to conventional bank financing. If a problem did arise, the bank’s interest would come ahead of the City’s. Although the City would be taking on some of the risk inherent with development, there are several factors that mitigate these risks. First, the City’s financial involvement would constitute a very small portion of the project, meaning that the other lenders and developer will be motivated to insure successful completion. Second, in terms of market risk, the City’s assistance will be fixed and additional subsidies required to insure sale of all units will be the obligation of the developer. V. AFFORDABLE HOUSING AGREEMENT Prior to final map or issuance of building permits, the developer will be required to enter into an Affordable Housing Agreement with the City which binds the developer to the specifics of the affordable housing project including, but not limited to the affordable purchase price and household income limits. The Housing Commission approved the drat Affordable Housing Agreement on September 11,1997. Execution of the agreement is pending. VI LOAN AGREEMENT A draft of the Loan Agreement is attached for review by the Housing Commission. Staff is requesting that the Housing Commission recommend approval of the agreement in substantially the form presented, subject to final approval by the City Attorney. 90 CALAVERA HILLS VILLAGE L-l * FEBRUARY 12,199s PAGE 5 VII. SUMMARY It is the role of the Housing Commission to make recommendations to the City Council based on several considerations with respect to affordable housing projects. These are: The proposal’s effectiveness in serving the City’s needs and priorities as expressed in the Housing Element of the General Plan and the HUD Consolidated Plan. The proposal’s consistency with the City’s affordable housing policies and ordinances as expressed in the Housing Element, Inclusionary Housing Ordinance, Density Bonus Ordinance, etc. The proposal’s development and operating feasibility, emphasizing the development team capacity, financing sources and the role of the City in providing financial assistance or incentives. Staff recognizes that affordable homeownership units of the size and type proposed are costly in comparison to other affordable housing alternatives. The financial information contained in the Proforma demonstrates the need for financial assistance to assist in the development of this project. The project will meet an affordable housing need and is consistent with City policies and ordinances on affordable housing. The Affordable Housing Policy Team (staff) is recommending that the Housing Commission approve a recommendation to the City Council to commit a total of $75,000 to the Calavera Hills Village L-l for-sale affordable housing project. The funding will be provided from the City of Carlsbad’s Housing Trust Fund and will be provided to the builder/ developer, Heritage Builders, Inc. The team (staff) is also requesting that the Housing Commission review and recommend approval of the Loan Agreement in substantially the form submitted subject to final approval by the City Attorney. VIII. EXHIBITS 1. Housing Commission Resolution No. 98-003 2. Minutes of the September 11,1997 Housing Commission Meeting 3. Letter Requesting Financial Assistance . 4. Draft Loan Agreement 5. Proforma 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21' 22 23 24 25 26 27 28 HOUSING COMMISSION RESOLUTION NO. 98-003 THAT THE HOUSING RECOMMEND APPROVAL TO THE CITY COUNCIL OF $75,000 IN FINANCIAL ASSISTANCE FOR THE CONSTRUCTION OF FIVE, FOR SALE, AFFORDABLE FOUR BEDROOM SINGLE FAMILY DETACHED UNITS IN ORDER TO HELP SATISFY THE REQUIREMENTS OF THE INCLUSIONARY HOUSING ORDINANCE FOR THE DEVELOPMENT OF 35 RESIDENTIAL UNITS IN VILLAGE L-l OF THE CALAVERA HILLS MASTER PLAN. APPLICANT: HERITAGE BUILDERS, INC CASE NO: CT 97-04, CP 97-02, SDP 97-03 WHEREAS, the developer of the Calavera Master Plan received approval to construct a 35 single family planned unit development as allowed by Carlsbad Tract Map CT 97-04; WHEREAS, the developer has proposed to construct five, for-sale, four bedroom detached single family homes affordable to lower income households as a means to satisfy their affordable housing obligations as permitted by Carlsbad Municipal Code Section 21.85 of the City’s Inclusionary Housing Ordinance; j WHEREAS, on September 11, 1997, the Housing Commission recommended to the Planning Commission approval of the developer’s proposal to construct said units; WHEREAS, said Housing Commission did, on the 12 th day of February, 1998, hold a public meeting to consider the developer’s request for financial assistance to construct said units; WHEREAS, at said public meeting, upon hearing and considering all testimony, if any, of all persons desiring to be heard, said Commission considered all factors relating to the request for financial assistance; NOW, THEREFORE, BE IT HEREBY RESOLVED by the Housing Commission of the City of Carlsbad, California, as follows: 1 . The above recitations are true and correct. 2. The project is consistent with the goals and objectives of the City of Carlsbad’s Housing Element and Comprehensive Housing Affordability Strategy, the Inclusionary Housing Ordinance, and the Carlsbad General Plan. - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18' 19 20 21 22 23 24 25 26 27 28 3. The project will provide a total of five, for-sale, four bedroom single family detached units affordable for purchase to households at 80% or below of the county median which meets a “medium priority” affordable housing need as outlined within the City of Carlsbad’s approved 1995-2000 Consolidated Plan. The project, therefore, has the ability to effectively serve the City’s housing needs and priorities as expressed in the Housing Element and the Consolidated Plan. 4. That based on the information provided within the Housing Commission Staff Report and testimony presented during the public meeting of the Housing Commission on February 12, 1998, the Housing Commission ADOPT Resolution No. 98-003, recommending APPROVAL to the City Council to provide $75,000 in financial assistance from the City of Carlsbad’s Housing Trust Fund to heritage Builders, Inc., for the construction of five, for sale, affordable four bedroom single family detached units to satisfy the requirements of the Inclusionary Housing Ordinance for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. 5. That the Housing Commission recommends that the City Manager or his designee be authorized to execute the Loan Agreement for the financial assistance in substantially the form presented in Exhibit 4 to the Housing Commission Staff Report, subject to review and approval by the City Attorney. PASSED, APPROVED, AND ADOPTED at a regular meeting of the Housing Commission of the City of Carlsbad, California, held on the 12th day of February, 1998, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: KATHLEEN WELLMAN, CHAIRPERSON CARLSBAD HOUSING COMMISSION DEBORAH K. FOUNTAIN HOUSING & REDEVELOPMENT DIRECTOR HC RESO NO. 98-003 PAGE 2 , - s HOUSING COMMISSIC.. ~JIINUTES SEPTEMBER 11, 1997 PAGE 4 - Exhi.bit : 2 _.- 2. CALAVERA HILLS VILLAGE L- 1 - Request for recommendation of approval to the Planning Commission of the construction of five, for-sale, affordable four bedroom single family detached units and the payment of 25 of the City’s in-lieu fee in order to satisfy the requirements of the Inclusionary housing ordinance for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. Craig Ruiz stated that this project was also previously before the Commission. The original project was to allow a higher density project, which included nine affordable townhomcs. In response to the concerns raised by the surrounding property owners about the density issue, the project has been redesigned. Mr. Ruiz stated that the project currently being presented provides for 35 single-family homes, five of which will bc for-sale affordable units. The five homes will be similar in style to the market-rate units as far as architecture and design. The project will consist of four bedroom units with 1,330 square feet of living space and two-car garages of 4.50 square feet. Mr. Ruiz explained the location of the project and showed how the affordable units are distributed throughout the overall project. Mr. Ruiz stated that this project is consistent with the City’s Affordable Housing Policies and Ordinances, in addition to the Inclusionary Housing Ordinance. This project will be the second for-sale project in the City, and it is meeting an unmet need in the City. These large four-bedroom units are quite desirable as affordable units according to Mr. Ruiz. They will be affordable at a minimum of 80 percent of median income. Vice Chairperson Wellman asked if there were questions of Mr, Ruiz. Commissioner Calverley asked if there will be restrictions on the developer as to whom they sell to, i.e., the family size occupying the affordable units. Mr. Ruiz responded that the City will not put any restrictions on the developer. Vice Chairperson Wellman asked if there are large families on waiting lists who would qualify for four-bedroom for- sale homes. Ms. Fountain responded that generally the City is in short supply of large units in the rental market. The City does not carry any waiting lists for the for-sale market, however. She added that the rental assistance program is for people who are 50 percent or below the median, SO they may not actually be able to qualify for a for-sale product. Vice Chairperson Wellman asked about extended families purchasing these units. Mr. Ruiz responded that extended families are okay as long as they qualify on their combined incomes. Vice Chairperson Wellman invited the applicant to speak. Mr. Mike Howes, Hofman Planning Associates, 2386 Faraday Avenue, Suite 120, Carlsbad, addressed the Commission and introduced the property owner, Don Chuman, and the site designer, Lex Williman. He said that he is not aware of any other four bedroom, affordable ownership units being proposed in this portion of Carlsbad (the northeast quadrant). He added that this is an excellent location for four bedroom, affordable units because they are in walking distance from an elementary school, a City park, a future commercial site, and a future junior high school site, with existing and future public transportation. Mr. Howes stated that at this time it has not been determined if any financial substantial subsidies will be required for this project. Vice Chairperson Wellman asked if there were any questions of the applicant. HOUSING COMMISSICIti MINUTES SEPTEMEER 11, 1997 PAGE 6 put into the project so the City can reinvest the money in another project on a first-time home-buyer product. Ms. Fountain said that there will be restrictions on the property so that if the home is sold, the new buyer will know what the requirements are. If the Property is sold, the City will be notified. Ms. Fountain added that 55 years is the term of affordability. ACTION: VOTE: AYES: NOES: ABSTAIN: Motion by Commissioner Scarpelli, and duly seconded, to ADOPT Resolution No. 97-O 1 I, recommending APPROVAL to the Planning Commission of the construction of five, for sale, affordable four bedroom single family detached units and the payment of -25 of the City’s In-Lieu fee in order to satisfy the requirements of the Inclusionary Housing Ordinance for the development of 35 residential units in Village L- 1 of the Calavera Hills Master Plan. 6-O-O Calverley, Latas, Rose, Scarpelli, Walker, Wellman None None 3. DEVELOPER PRESENTATION ON THE PROPOSED RANCH0 CARRILLO AFFORDABLE HOUSING PROJECT Craig Ruiz informed the Commissioners that this item is an informational item only and there will be no request for action by the Commission; however, this project is going to come before the Commission at a later date. This item is to introduce the Commissioners to the development team. The developer of Ranch0 Carrillo, the architect for the affordable project, and the non-profit developer are all present and will make a brief presentation, he said. Mr. Ruiz gave the background of the project describing it as an approved Master Plan for over 1,800 units. This project was previously before the Commission with affordable units in Villages E and F. Currently the affordable project will be moving into Village B to be built in phases including multi-family units with a mixture of both affordable units and potentially some market-rate units as well. Vice Chairperson Wellman invited the development team to speak. Mr. Chris Chambers, Continental Homes, 12636 High Bluff Drive, San Diego, addressed the Commission and said it has been over four years since he was last before the Commission in connection with the approval of the Master Plan of Ranch0 Carrillo. Mr. Chambers’was also before the Commission for the approval ofthe fist tentative maps in Rancho Carrillo. Mr. Chambers stated that this is the largest grading project that has been undertaken in Carlsbad since Aviara. He said they will be moving about 9 million cubic yards of earth all within the boundaries of Ranch0 Carrillo, being about 80 percent done with the grading and all the infrastructure work. When Ranch0 Carrillo first came before the Commission, it was comprised of four ownerships. Continental Homes owned the south and eastern comers. UDC, Scripps, and an individual by the name of Don Woodward, later taken over by Merrill Lynch, owned other parts of the project. When it came time to develop, Continental Homes purchased the other parcels of the project. Having a single ownership gave Continental Homes an opportunity to re-evaluate the planning efforts of Ranch0 Carrillo. Even before this time, the contributions of Ranch0 Carrillo to the City of Carlsbad continued to escalate. Today the project has almost 300 acres of open space out of the original acreage of 650. The land on-site approaches 40 percent of open space; and there is another 20 acres off-site that has been acquired. Mr. Chambers said they have contributed Village G, which was at one time designated and allowed for 101 detached dwelling units. Today it is 39 dwelling units. There is a plant species (wild onion plant) which will have the largest population preserved in the County of San Diego, and there are extensive negotiations to preserve the eastern edge and the middle part of the project as wildlife corridors of all manner of animals; but primarily on the eastern edge to HOUSING COMMISSION MINUTES SEPTEMBER 11, 1997 PAGE 5 Commissioner Scarpelli asked the developer how he is going to make this project work. Mr. Howes responded that it is not going to be easy--it’s going to be painful. He added that the site has been previously graded and the number of utilities are already in. The adjacent street, Harwich, is in with full improvements, and Edgeware has been graded in. Vice Chairperson Wellman asked about the price ofthe market-rate and affordable units. Mr. Howes estimated the range to be between $220,000 to $225,000. He said he is aware of the large difference in cost between the market-rate units and the affordable units. He added that there is going to be quite a bit of subsidy for the affordable units with a $35,000 to $40,000 negative cash flow on the affordable units. Commissioner Scarpelli asked why the developer chose four bedroom over three bedroom units. Mr. Howes responded that the idea W% compatibility with other homes in the project, which are all four bedroom homes. He added that there is a need for four bedroom homes. * Vice Chairperson Wellman asked if there will be much difference in the quality ofthe units and whether landscaping will be included. Mr. Howes responded that the units will be very similar in architecture and style. The affordable units will be a little bit smaller, but they will fit right in. Mr. Howes said that the front yards will be landscaped. Commissioner Rose asked about the amenities. Mr. Howes responded that there is a common ret facility, half basketball court, and a tot lot in the center of the project that will be accessible to all members--affordable and non affordable. In addition, there will be ocean views and be within walking distance to Calavera Park. Vice Chairperson Wellman opened the item for discussion among the Commission members. Commissioner Calverley thanked the applicant for the completion ofthe package, wiEh its elevations and blue lines. Commissioner Walker applauded the developer for having these units integrated the way they are. Commissioners Latas and Scarpelii suggested the developer return to the Commission if they are in need of some type of modest subsidy. Ms. Fountain added that the prices of the other units are in the moderate income range for the size of units so this project is actually a good mix of units in both the low and moderate mcome category, which the City has a need for as well. The City does not require developers to do anything for the moderate income, but it is nice to see the mix come in with this type of project, she said. Vice Chairperson Wellman asked what happens to the affordability of the units when they are sold. Mr. Howes responded that it is put in the CC&Rs that the unit has to be sold to another low-income household. Ms. Fountain added that there are two options or ways the developer can market these homes. They can either choose to continue the affordability by making sure that the next buyer qualifies and the unit is sold at an affordable price. Or, if the home is sold at a non-affordable price or to a non-qualified person, the City recaptures the subsidy the developer -Exhi.bit 3 ---_-----. January 29, 1998 Heritage Builders, Inc. Heritage Builders, Inc. 4809 Dulin Road 4809 Dulin Road Fallbrook, Ca 92028 Fallbrook, Ca 92028 (760) 723-2207 office (760) 723-6664 fax (760) 723-2207 office (760) 723-6664 fax Debbie Fountain City of Carlsbad Housing & Redevelopment Department 2965 Roosevelt Street, Suite B Carlsbad, Ca 92008 SUBJECT: Calavera Hills Village L-l Affordable Housing Subsidy Dear Ms. Fountain: Per our discussions with you and your staff, this letter formally requests a financial subsidy for the five affordable housing units within the Calavera Hills Village L-l project. These for-sale units will be similar in style to the market rate units and will be developed concurrently with the market rate units. The affordable units within the project will each have four bedrooms with 1,330 square feet of living space and two-car garages. For the construction of each of these affordable housing units, we will be incurring a negative cash flow between $40,000 and $50,000 per affordable unit. In light of the economic difficulties posed by providing affordable units, we are requesting an affordable housing subsidy. During our meetings, a subsidy of $15,000 for each unit was discussed. We are requesting this amount due to the higher costs associated with providing affordable four bedroom ownership units for lower income families in the northeast quadrant of Carlsbad. We appreciate your support and consideration. +s President C.C. Craig Ruiz I... - ? Exhibit 5 to be used for emergency housing Ms. Hines responded t ity Council did approve County of San Diego’s Hotel/Motel voucher program for homeless She said that the City is am which is specifically geared to the elderly, disabled, or fame h children. Ms. Hines a tels or motels are available for those persons needing shelter throu line Community Services and St. Francis Center in Vista. She said that any pe f assistance this winter should be referred to these two agencies. In a dictions as well as social service providers to look at a more regional approach e next winter season so there is something available for the homeless next year. Commissioner Noble added that there ar ties that request and get funds from the CDBG funds to provide for the ‘homeless. Ms. Hines responded that ther CDBG program. She added HOME program, they do that do not have as many and shelters funded through the d not want to participate in the donations and other funding sources ederal programs do. o ADOPT Housing Commission 1 that the reallocation of $13,400 hip Program funds originally e City of Carlsbad’ s Single Family Residential Rehabilitation Program. NOES: ABSTAIN: Calverley, Escobedo, Noble, Rose, Walker, Welhnan None None 2. CALAVERA HILLS VILLAGE L-l - Recommendation of approval to the City Council to provide $75,000 in financial assistance from the City of Carlsbad’s Housing Trust Fund for the construction of five, for sale, affordable four bedroom single family detached units in order to help satisfy the requirements of the Inclusionary Housing Ordinance for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. Craig Ruiz reminded the Commissioners that this project was before them in September of 1997. He said the project is located in the Calavera Master Plan with a total of 3.5 units, five of which will be affordable for-sale units for families earning 80 percent or less of the area median income. He added that the five affordable units are spread throughout the development and will be developed concurrently with the market-rate units. Each unit will include 1,300 square feet of living area with four bedrooms and two-car garages. At the September meeting, the Housing Commission recommended approval of this project for the construction. At that meeting there was not a discussion of financial assistance. Subsequent to that meeting, there was a transfer of the property and the property was sold to a home builder. The new developer has prepared a detailed proforma, which was included in the Commissioners’ packet as Attachment 5. Based on this profoma, the applicant has determined that financial assistance is necessary to help develop the project. -..- HOUSING COMMISSION MINUTES FEBRUARY 12. 1998 Page 3 Mr. Ruiz discussed the “Proforma Subsidy Analysis” that Staff provided in the Staff report (page 3), which summarizes the detailed proforma. He said that typically the Housing Commission has reviewed rental projects, which have a higher level of leverage than this project. Mr. Ruiz said that Staff is recommending $15,000 per unit for a total of $75,000 for five units. He said that this may seem high on a per-unit basis; but Staff feels there are extenuating circumstances that justify the cost. First, this is a for-sale project--only the second for-sale project in the City. Second, these are four bedroom units, and there are few, if any, affordable large for-sale units in the City; so these units will serve a very under-served segment of the City’s population. Chairperson Wellman asked if there were any questions of Staff. Chairperson Wellman asked for confirmation that the subsidy from the City is in the form of a loan. Mr. Ruiz responded affirmatively and said that the “gap” amount would be taken back against the property in the form of a second trust deed. The buyer would not have to make any payment on it, but when they go to re-sell the property, there will be no restrictions on who they can re-sell to, but the second deed would be repaid in full to the City plus the City’s subsidy at that time, which would go into the Housing Trust Fund to be used for other housing projects. No money would go to the developer, according to Mr. Ruiz. He said this is the same setup the City used with Sambi. The developer would, however, get the full purchase price of the homes. Chairperson Wellman invited the applicant to speak. Mike Howes, Hoffman Planning and Associates, 2386 Faraday Avenue, Suite 120, Carlsbad, CA, addressed the Commission, and said that Mr. Ruiz did a very good job in summing up the project and the applicant’s request. He stated that Phil Jones of Heritage Builders is available to answer questions about the proforma. Commissioner Calverley asked why a developer would buy a project that does not “pencil.” Mr. Howes responded that the applicant felt they could make it pencil. Commissioner Calverley said that it is not logical to close an escrow on a project with a $15,000 negative cash flow on five units. She is assuming that the negative cash flow does not exist. Mr. Howes asked Mr. Jones to explain the cash flow issue. Mr. Philip Jones, 4809 Dulin Road, Fallbrook, CA, addressed the Commission and said that the affordable houses do not pencil, and said they will be making up the losses in the market-rate units. Commissioner Calverley responded that prior to closing escrow part of the proforma would be knowing how much they were going to make per unit and how much of a difference they had to make on the market-rate units in order to make the affordable units pencil. She said she feels the applicant is before the Commission asking them for “gravy”; that they have already done their numbers and know the project pencils as is with nothing coming from the City, or else they would not have bought the project. Mr. Jones responded that when they did their proformas they figured they could sell the affordable units for a littler higher than what is on Mr. Ruiz’s proforma. He added that this is their first affordable housing project, and they did not really understand all the rules that were applying to the affordable housing project. He said they assumed that they -would be able to sell the houses for at least $145,000. - .- HOUSING COMMISSION MINUTES FEBRUARY 12,1998 Page 4 Commissioner Calverley asked Mr. Jones where he got this number from. Mr. Jones responded that this was the number he was told. He said that they are still trying to figure out who the buyers are and how much they can afford. In reality, as Mr. Ruiz said, the buyer may not even be able to afford $141,000. They may be able to afford $125,000 to $126,000, making the applicant’s losses increase even more than Mr. Jones projected. Mr. Jones said that as a builder looking at the actual numbers and what it costs to build and what the units can be sold for, there is actually an increase loss. Chairperson Wellman asked if there were any follow-up questions of Staff. Commissioner Walker asked about the developer and City subsidies being a second returning to the City after the sale of the home, and about interest on the subsidies. Mr. Ruiz responded that instead of interest the City does a shared equity. For example, he said that if the City and developer contributions equal 25 percent of the total purchase, the City would take roughly 25 percent of the equity .when the unit is sold. Chairperson Wellman asked if the developers will ask for more money if it is difficult to find buyers who qualify for the affordable units. Mr. Ruiz responded that the developer would have to answer this question, Ms. Fountain added that the developer can come back and ask but the Commission can also make it clear that this is all they are willing to put into the project. If they do come back, the agreement will have to be amended and the Housing Commission would have to approve the agreement if the developer wanted to ask for additional money. Chairperson Welhnan asked if the applicant would like to address this issue. Mr. Jones responded that at this time he assumes this is all they will be asking for. He said he has never been in this position before where he has had to build affordable units and said they are in the position to take the $50,000 loss on the affordable units. He said it depends on the kind of buyers they have. He is assuming that they will get a lot of buyers that can come in and afford the homes at $140,000. If that’s the case, then it is not a problem. Mr. Jones said it is difficult for him to say “absolutely, no way will I ever come back here.” He does not plan on it and hopes that the market increases enough to make up the difference with the other homes. He hopes and assumes buyers will come in that can fall within the qualifications of the program. The program, as he understands it, is a very tight program and it is a little difficult to get a person to qualify with this program. He said they are determined to make this thing work and will work really hard with Staff, the mortgage companies, and with the applicants of the homes to make it work. Chairperson Wellman asked when the applicant will start the project. Mr. Jones said they will file their final map in about two weeks, so they will probably start in July or August. There being no other persons desiring to address the Commission on this topic, Chairperson Wellman declared the public testimony closed and opened the item for discussion among the Commission members. ACTION: Motion by Commissioner Rose, and duly seconded, that the Housing Commission ADOPT Resolution No. 98-003 recommending APPROVAL to the City Council to provide $75,000 in financial assistance from the Housing Trust Fund to Heritage Builders, Inc., for construction of five, for sale, affordable four bedroom single family detached units in order HOUSING COMMISSION MINUTES FEBRUARY 12,1998 Page 5 VOTE: AYES: NOES: ABSTAIN: to satisfy the requirements of the Inclusionary Housing Ordinance for the development of 35 residential units in Village L-l of the Calavera Hills Master Plan. 5-1-o Escobedo, Noble, Rose, Walker, Welhnan Calverley None RANCH0 CARRILLO AFFORDABLE HOUSING PROJECT - Recommendation of ap Council to provide up to a maximum of $1 ,160,OOO in financial assistance from the City Housing Trust Fund for the construction of one hundred sixteen (116) affordable apartm isfy a portion of the requirements of the Inclusionary Housing Ordinance for the R Carrillo Master Special Meeting whe the site development financial assistance c issioners that this project has been before them twice. He a at last month there was a ommission recommended approval of the developer’s a ble housing agreement and e Housing Commission is being asked to recommendation on the Mr. Ruiz stated that the Staff report recommendation is that the Commission prov assistance, depending on the actual fmancing dollar amount will be significantly reduced. e exact financing source for the project. t program. Because of this the ecome accustomed to, He added that the of money, that being $1.16 million in financial d at a later date. Depending on the source, the Mr. Ruiz stated that in the Staff report the two tax different project costs because the two different o .accounts they need to have and the amount of Subsidy Analysis” that Staff prepared (page lled Option A and Option B and there are two requirements as far as different types of reserve lained the two options in the “Proforma Mr. Ruiz stated that the 4 percent tax cr eject is one they consider to be certain” assuming the developer gets all their approval ir application in on time to CHFA that the City’s Inclusionary Housing Ordinance will require program, the developer is propos percent at 60 percent of medi come, and the remaining 40 percent at 80 percent; so th income levels in this proj out half the units will be three bedrooms, and the remain bedroom units, thus th 1s going to be more affordable than the City’s requirements. nent loan is going to be greatly reduced compared to Option A. With the 9 y greater amount of tax credit--$7.5 million--that that reduces the “gap” by ained that Staff looked at dollars leveraged per the total cost of the project and they looked at dollars quired. The developer is paying a significantly larger portion, he said. In the 9 percent option, the C for every $11.5 of subsidy required, which is in line with Laurel Tree and Villa Loma. The 4 percen nly raises a small percentage of the equity, therefore, the City’s contribution would have to be much greater. everaging is less than half compared with what the City would get with the 9 percent project.