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HomeMy WebLinkAbout2003-09-11; Housing Commission; MinutesThe City of Carhbad Housing& Redevdopment Depax-tment AREPORT TO THE HOUSINe COXMXSSXON I Staff: CraigRuSz Management Jkna.l~mt XtemNo, 1 DATE: SEPTEMBER 11,2003 SUBJECT: FARBER JEFFERSON STREET CONDOMINIUMS COMBINED AFFORDABLE HOUSING PROJECT RECOMMENDATION OF APPROVAL TO THE CITY COUNCIL OF AN AFFORDABLE HOUSING UNITS IN A COMBINED AFFORDABLE HOUSING PROJECT TO SATISFY THE INCLUSIONARY HOUSING REQUIREMENT FOR THE FARE3ER JEFFERSON STREET CONDOMINIUMS LOCATED AT 1100 LAS FLORES DRIVE AGREEMENT TO ALLOW TWO OFF-SITE AFFORDABLE HOUSING I. RECOMMENDATION That the Housing Commission ADOPT Resolution No. 2003-004 recommending APPROVAL to the City Council of an affordable housing agreement to allow two off-site affordable housing units in a combined affordable housing project to satis@ the inclusionary housing requirement for the Farber Jefferson Street Condominiums located at 1 100 Las Flores Drive. 11. PROJECT DESCRIPTION On January 15, 2003, the Planning Commission approved the Farber Jefferson Street Condominiums. The project is an 1 1-unit condominium project and is located at 1 100 La Flores Road, at the northeast comer of Jefferson Street and Las Flores Road. The project has a requirement to provide two inclusionary housing units. When the Planning Commission reviewed the project, the developer was given the option of providing the two affordable units within the market rate development or to find a suitable off-site combined project, subject to the review and approval of the Housing Commission and City Council. The developer is proposing to provide the two affordable units in an off-site combined project. The Inclusionary Housing Ordinance states that whenever reasonably possible, inclusionary units should be built bn the residential development project site. However, the Ordinance also allows for the required units to be provided off-site when it can be demonstrated by a developer that the goals of this chapter and the city’s housing element would be better served by allowing some or all of the inclusionary units associated with one residential project site to be produced and operated at an alternative site or sites. The resulting linked inclusionary project site(s) is defined as a combined inclusionary housing proj ect. FAlU3ER JEFFERSON STREET CONDOMINIUMS SEPTEMBER 1 1,2003 PAGE 2 The most common example of a combined project to date is the Villa Loma Apartments. Villa Loma was developed to meet the 160-unit affordable housing requirement for the Aviara development and establish a “credit bank” of 184 units. These credits are purchased by developers of smaller projects in the southern half of the City and the City is able to recoup its subsidy to the project. To date, over 20 projects have met the inclusionary housing requirement in this combined project. The primary difference between Villa Loma and the Farber Jefferson Street Condominiums is that the proposed project will allow a for-sale development to meet its inclusionary requirement by providing for-sale affordable units off-site. Projects participating in Villa Loma are for-sale developments that have purchased credits in a rental development. The Farber project is proposing that the combined project be located at 2362 Hosp Way, in The Grove Condominiums, an existing development. As stated in the developer’s letter (see Attachment 4), the small size of the market rate development makes it financially difficult to integrate the affordable units into an overall development. The proposed combined project is located within the same quadrant (northwest) as required by the Inclusionary Housing Ordinance and is within 1 % miles of the new market rate development. The proposal was reviewed by the Affordable Housing Policy Staff Team (“Team”). The Team agreed with the developer that the combined project had numerous locational advantages over the site of the market rate development. The site is located adjacent to El Camino Real, approximately ?4 mile south of Marron Road. Within ?4 mile of the site of the affordable units, there are numerous mass transit options (bus routes, transit center, Highway 78) and three commercial centers that offer both employment and shopping opportunities. All of these amenities are closer than would be available within the market rate development on Las Flores Drive and Jefferson Street. 111. FINANCIAL ASSISTANCE The Developer is not requesting any financial assistance for this project. However, as part of the sale of the affordable units, the developer will provide a subsidy to the buyer to make the units affordable to lower income households. The subsidy will be assigned to the City. The subsidy, plus a percentage share of contingent interest, will be repaid to the City at the time the unit is sold to a non-low income household which shall be no less than 15 years after the initial sale. IV. LOAN DOCUMENTS The borrower promissory note, deed of trust and disclosure statement related to this transaction are attached as Attachment 3 for the Commission’s review and approval. The buyer of the affordable unit will be required to enter into these agreements at the time ofthe purchase to ensure that the affordability requirements for the project are maintained. The loan documents state if the property is re-sold within 15 years of the original purchase, the property must b e resold to a subsequent 1 ow income household at a price which is affordable to a low income household earning 80% or less of the AMI. The documents also allow that if the property is sold FARBER JEFFERSON STREET CONDOMINTUMS SEPTEMBER 1 1,2003 PAGE 3 after 15 years of the initial purchase, the property may be sold at market price, and the City will recapture the initial subsidy, plus a share of any appreciation. V. AFFORDABLE HOUSING AGREEMENT Prior to the issuance of a final map or issuance of 'any building permits for the Farber development, 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. The Agreement will require the inclusionary units be sold at a price that is affordable to a low income household earning 80% or less of the San Diego County Area Median Income (AMI). VI. SUMMARY AND STAFF RECOMMENDATION It is the role of the Housing Commission to make recommendations regarding combined off-site projects to the City Council based on several considerations with respect to affordable housing projects. These are: 0 The proposal's effectiveness in serving the City's needs and priorities as expressed in the Housing Element of the General Plan and the Consolidated Plan. 0 The proposal's consistency with the City's affordable housing policies and ordinances as expressed in the Housing Element and Inclusionary Housing Ordinance. As stated previously, the proposed affordable units have numerous locational advantages over the market rate development. Thus, the affordable units have the ability to meet the goals and objectives of the City's affordable housing program. The project location is close to numerous service facilities, retail locations, mass transit, and employment opportunities in the area. The developer of the market rate development has recently purchased the proposed affordable units. The developer, who is also an experienced mortgage lender, has the necessary skills and knowledge to ensure that the affordable units will be sold to qualified low income households. It is staffs recommendation that the Housing Commission approve the resolution recommending approval of the proposed affordable housing agreement to allow two off-site affordable housing units in a combined affordable housing project located at 2362 Hosp Way to satisfy the inclusionary housing requirement for the Farber Jefferson Street Condominiums located at 1 100 Las Flores Drive. VII. ATTACHMENTS 1. Housing Commission Resolution No. 2003-004 2. Draft Affordable Housing Agreement 3. Borrower Loan Documents 4. Developer Off-Site and Combined Inclusionary Housing Project Assessment Worksheet 5. Vicinity Maps 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. 2003-004 THAT THE HOUSING COMMISSION RECOMMENDS APPROVAL TO THE CITY SITE AFFORDABLE HOUSING UNITS IN A COMBINED AFFORDABLE HOUSING PROJECT TO SATISFY THE INCLUSIONARY HOUSING REQUIREMENT FOR THE FARBER JEFFERSON STREET CONDOMINIUMS LOCATED AT 1100 LAS FLORES COUNCIL OF AN AFFORDABLE HOUSING AGREEMENT TO ALLOW TWO OFF- . DRIVE APPLICANT: FARBER JEFFERSON STREET CONDOMINIUMS- CASE NUMBER: SDP 02-14 WHEWAS, on January 15, 2003, the Planning Commission approved the Farber Jefferson Street Condominiums to allow for the development of an 11 unit condominium project at 1100 Las Flores Drive; and WHEREAS, the Planning Commission required that the development provide two affordable housing units to meet the requirements of the City’s Inclusionary Housing Ordinance; and WHEREAS, the Inclusionary Housing Ordinance states that whenever reasonably possible, inclusionary units should be built on the residential development project site; and WHEREAS, the Inclusionary Housing Ordinance also allows that when it can be demonstrated by a developer that the goals of the Ordinance and the city’s housing element would be better served by allowing some or all of the inclusionary units associated with one residential project site to be produced and operated at an alternative site or sites with the resulting linked inclusionary project site(s) to be defined as a combined inclusionary housing project; and WHEREAS, the developer of the Farber Jefferson Street Condominiums has proposed to meet the project’s Inclusionary Housing Ordinance requirement through the provision of two off- site affordable housing units in a combined project; and 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 HC RESOLUTION NO. 2003-004 PAGE 2 WHEREAS, the location of the combined project at 2362 Hosp Way has locational advantages over the market rate development which include closer proximity to mass transit, employment and shopping opportunities; and WHEREAS, based upon the locational advantages, the combined project has demonstrated that the goals of the Inclusionary Housing Ordinance and the City’s Housing Element would be better served by allowing the inclusionary units associated with the Farber Jefferson Street Condominiums to be produced and operated at an alternative site which results in a combined inclusionary housing project located at 2362 Hosp Way; and WHEREAS, the Housing Commissi6n did, on the llh day of September, 2003, hold a public meeting to consider the developer’s request to approve an affordable housing agreement to allow two off-site affordable housing units in a combined affordable housing project to satisfy the inclusionary housing requirement for the Farber Jefferson Street Condominiums located at 11 00 Las Flores Drive; and WHEREAS, upon hearing and considering all testimony, if any, of all persons desiring to be heard, said Commission considered all factors relating to the proposed off-site combined project. 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. 1 1 I E 5 1( 11 1; 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HC RESOLUTION NO. 2003-004 PAGE 3 2. 3. 4. 5. Ill /I1 Ill The Affordable Housing Agreement to allow two off-site affordable housing units in a combined affordable housing project to satisfy the inclusionary housing requirement for the Farber Jefferson Street Condominiums is consistent with the goals and objectives of the City of Carlsbad’s Housing Element, Consolidated Plan, the Inclusionary Housing Ordinance, and the Carlsbad General Plan. The .Affordable Housing Agreement to allow two off-site affordable housing units in a combined affordable housing project to satisfy the inclusionary housing requirement for the Farber Jefferson Street Condominiums will provide two (2) affordable housing units which will be affordable to lower income households. 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 Housing Commission Staff Report and testimony presented during the public meeting of the Housing Commission on September 1 1, 2003, the Housing Commission hereby ADOPTS Resolution No. 2003-004, recommending APPROVAL to the City Council of an affordable housing agreement to allow two off-site affordable housing units in a combined affordable housing project to satisfy the inclusionary housing requirement for the Farber Jefferson Street Condominiums located at 1 100 Las Flores Drive. That the Housing Commission recommends that the Community Development Director or his or her designee be authorized by the City Council to execute all documents related to approval of the combined project, including but not limited to an Affordable Housing Agreement. 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 6. That the Housing Commission recommends that the City Council approve the Promissory Note, Deed of Trust and Borrower Disclosure Statement related to the sale of the affordable housing units, in substantially the form presented to the Housing Commission on September 11, 2003, and subject to review and final 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 1 l* day of September, 2003, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: EDWARD SCARPELLI, CHAIRPERSON CARLSBAD HOUSING COMMISSION DEBORAH K. FOUNTAIN HOUSING AND REDEVELOPMENT DIRECTOR HC RESOLUTION NO. 2003-003 PAGE 4 ATTACHMENT2 RECORDING REQUESTED BY: City of Carlsbad WHEN RECORDED MAIL TO: City of Carlsbad City Clerk's Office Attn: City Clerk 1200 Carlsbad Village Drive Carlsbad, California 92008 (Space above for Recorder's Use) AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY This AFFORDABLE HOUSING AGREEMENT IMPOSING RESTRICTIONS ON REAL PROPERTY ("Agreement"), entered into as of the by and between the CITY OF CARLSBAD, a municipal corporation (hereinafter referred to as the ("City"), and ,a , (hereinafter referred to as the ("Developer"), is made with reference to the following: day of 2003, A. Developer is the owner of certain real property in the City of Carlsbad, in the County of San Diego, California (hereinafter referred to as the ("subject property") descried in Attachment "A", which is attached hereto and incorporated herein by this reference. B. Developer wishes to construct eleven (1 1) residential housing units for sale at prevailing market prices ("Market Units") and two (2) residential housing units for sale at affordable prices ("Affordable Units"). The City has approved Site Development Permit SDP 02-14, Carlsbad Tentative Tract Map CT 02-13, Condominium Permit CP 02-08, and Coastal Development Permit CDP 02-32 for the proposed development (Development). The City issued these approvals subject to certain Conditions of Approval, including a condition requiring the Developer to enter into an Affordable Housing Agreement in which Developer agrees to provide two (2) dwelling units affordable to lower-income households. C. Developer is required by the Conditions of Approval to enter into an Affordable Housing Agreement as required and with the content specified by the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code ("CMC") Chapter 21.85. This Agreement is that Affordable Housing Agreement pursuant to Section 21.85.140 of CMC Chapter 21.85, and shall be executed and recorded prior to the approval of any final map, including Master Tentative Map, for the Subject Property. 1 D. Developer is seeking to meet the requirements of the Inclusionary Housing Ordinance for the Development by providing the two (2) affordable units in an off-site combined inclusionary housing project as permitted by Section 21.85.80 of CMC Chapter 21.85. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. Satisfaction o f A ffordable H ousing Obligation and Conditions of Approval. In order to satisfy the Conditions of Approval and requirements of the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter 21.85, Developer shall provide a total of two (2) Affordable Units that shall be restricted and affordable to lower-income households. This Agreement is an Affordable Housing Agreement pursuant to Section 21.85.140 of the Carlsbad Municipal Code. Developer shall submit this Agreement to the City and the Agreement shall be executed prior to the approval of the final map for the subject property. 2. Combined Inclusionary Housing Proiect. In order to satisfy the Conditions of Approval and requirements of the City's Inclusionary Housing Ordinance, Carlsbad Municipal Code Chapter 21 35, the Developer has elected to provide the two (2) Affordable Units in an off- site C ombined Inclusionary H ousing Project 1 ocated at 2 362 H osp Way # 234 and 2362 Hosp Way #334, which are more further described in Attachment B. The units shall be sold at a price that is restricted and affordable to lower-income households according to the Affordable Subsidized Purchase Prices attached hereto and incorporated herein as Attachment D. 3. Terms Governing Provision of Affordable Units. 3.1. Oblipation to Provide Affordable Units. 3.1.1. Developer shall provide the two (2) Affordable Units in relation to Market Units ("Market Units") on the Subject Property. The Affordable Multifamily Units shall include one bedroom units in the numbers and with the square footage indicated in "Attachment C" to this Agreement. The maximum allowable income level of buyers of the affordable units shall be restricted to a maximum of 80% of the area median income. 3.2 Schedule for Developing Affordable Units. 3.2.1. Prior to the approval o fa ny F inal M ap for the D evelopment: ( i) this Agreement shall be duly executed and recorded; (ii) the developer of the Affordable Units shall have received approval of a Redevelopment Permit for the Development. 3.2.2 Upon satisfLing the applicable conditions stated in Sections 3.2.1, all building permits for the Development can be released for a total of eleven (1 1) Market Units. 3.2.3. Prior t o receiving the first C ertificate o f 0 ccupancy for the final Market Unit, Developer shall sell the two off-site combined units described in Attachment B to low income households as described in Section 3.3 below. Once the sales transaction of the off- 2 site Combined Units is completed, the first Certificate of Occupancy may be obtained for the Market Units. 3.3 Terms for Sale of Affordable Units. 3.3.1. The Schedule of Maximum Eligible Buyer Incomes and Affordable Subsidized Purchase Prices (the "Schedule") attached hereto and incorporated herein as Attachment D sets forth the City's requirements for determining the maximum household income of buyers of the Affordable Units ("Eligible Buyers") and the methodology for calculation of the subsidized purchase prices of Affordable Units which will be affordable to each of the Eligible Buyers (the "Affordable Purchase Prices"). The Schedule also includes initial estimates of Eligible Buyer actual incomes and the corresponding Affordable Purchase Prices. The Final Schedule shall be established prior to sale based on the San Diego County Area Median Income and the cost factors applicable at the time. The Final Schedule shall be submitted by the Developer and approved by the City's Housing and Redevelopment Director prior to the marketing of the Affordable Units. 3.3.2. The Developer shall sell the Affordable Units only to Eligible buyers whose household incomes have been verified by the Developer. The purchase price for an Affordable Unit (the "Market Purchase Price") shall be the market price charged for a comparable unit (and not to exceed fair market value), or if there is no comparable unit, then the market Purchase Price shall be at the value established by an appraiser approved by the City; provided, however, that .the Developer shall carry back financing equal to the difference between the Market Purchase Price and the Affordable Purchase Price for the particular Eligible Buyer (the "Primary Affordability Subsidy"). The carryback financing shall be assigned by the Developer to the City, and shall be evidenced by a promissory note from the Eligible Buyer to the City, secured by a second mortgage deed of trust on the Affordable Unit (the "City Second Mortgage"). The balance of the Market Purchase Price shall be paid by the Eligible Buyer to the Developer in cash, utilizing downpayment monies and first mortgage proceeds. 3.4 Terms for Re-sale of Affordable Units. After the initial sale of the inclusionary for- sale units at a price affordable to the target income level group, inclusionary for-sale units shall remain affordable to subsequent low income eligible buyers pursuant to a resale restriction for a minimum term of fifteen (15) years. Beginning fifteen years after the initial purchase of an Af5ordable Unit, for-sale units m ay b e s old at a m arket price to other than targeted households provided that the sale shall result in the recapture by the City or its designee of a financial interest in the units equal to the amount of subsidy necessary to make the unit affordable to the designated income group and a proportionate share of any appreciation. Funds recaptured by the City shall be used in assisting other eligible households with home purchases at affordable prices. To the extent possible, projects using for-sale units to satisfjr inclusionary requirements shall be designed to be compatible with conventional mortgage financing programs including secondary market requirements. 4. City Auproval of Documents. 3 4.1. The following documents, in form and substance acceptable to the City, shall be used in connection with the sale of Affordable Units. Documents to be prepared by the Developer shall be submitted to the Housing and Redevelopment director for review and approval no later than the start of construction of the Affordable Units. 4.1.1. A marketing plan establishing the process for seeking, selecting and determining the eligibility of buyers of the Affordable Units shall be prepared by the Developer. 4.1.2. An educational program informing Affordable Unit purchasers of the obligations of home ownership and the specific features of this program shall be prepared by the Developer. 4.1.3. Purchase and Sale Agreements for sale of the Affordable Units shall be prepared by the Developer. 4.1.4. City Second Mortgage promissory note, deed of trust, and borrower disclosure form shall be provided by the City, substantially in the form attached hereto respectively as Exhibits , , and respectively. 4.2 Any of the documents identified in this section 3.1 may be revised by Developer from time to time with the prior written approval of the Housing and Redevelopment Director. 5. Mortgage Credit Certificate Promam. Buyers of the Affordable Units may qualify for income tax credits pursuant to Mortgage Credit Certificate (MCC) Program, for a portion of the annual interest paid on a first mortgage used to acquire the Affordable Unit. City shall cooperate with Developer in obtaining and providing to prospective buyers Mortgage Credit Certificates fiom allocations that it may receive. 6. ReDortinn and Compliance Monitoring. A report verifying compliance with the requirements of this Agreement covering the initial sales of the Affordable Units shall be provided to the City by the Developer and approved by the Housing and Redevelopment Director. Developer shall provide the City with other reports as reasonably required by the City to verify compliance with this Agreement. 7. Default. Failure of the Developer to cure any default in the Developer's obligations under the terms of this Agreement within (90) days after the delivery of a notice of default fiom the City (or where the default is of the nature which cannot be cured within such ninety (90) period, the failure of the Developer to c ommence to c ure such default within the ninety (90) day period or the Developer's failure to proceed diligently to complete the cure of such a default within a reasonable time period but in no event not greater than 180 days) will constitute a failure to satisfy the Conditions of Approval with respect to the Subject Property and the requirements of Chapter 21.85 of the Carlsbad Municipal Code and void the approval of the Final Map and Site Development Plan; and the City may exercise any and all remedies available 4 to it with respect to the Developer's failure to satis@ the Conditions of Approval, including but not limited to, the withholding of building permits for the Market Units within the Subject Property until such cure is completed. 8. Amointment of Other Agencies. At its sole discretion, City may designate, appoint or contract with any other public agency, for-profit or non-profit organization to perform the City's obligations under this Agreement. 9. Release of Subiect Property From Agreement. The covenants and conditions herein contained shall apply to and bind the Developers and its heirs, executors, administrators, successors, transferees, and assignees of all the parties having or acquiring any right, title or interest in or to any part of Subject Property and shall run with and burden the Subject Property and shall run with and burden the Subject Property until terminated in accordance with the provisions hereof. Prior to the issuance of building permits, the Developer shall expressly make the conditions and covenants contained in this Agreement a part of any deed or other instrument conveying any interest in the Subject Property. Notwithstanding anything to the contrary set forth in the Agreement, individual purchasers of units pursuant to an approved public report in compliance with the California Subdivided Lands Act, and mortgage lenders holding deeds of trust on such individual units after sale to such purchasers, shall not be subject to the terms of this Agreement; and the terms of this Agreement shall be of no further force or effect with respect to such completed unit on the date of the recordation of a deed to the individual purchaser. Upon issuance of certificates of occupancy for all of the Affordable Units, the entire Subject Property, with the exception of the property subject to the approval Site Development Plan SDP 02-14, shall be released fkom the burdens of this Agreement. The burdens of this agreement shall remain in full force and effect and recorded against the property subject to the approval Site Development Plan SDP 02-14 for the duration of this agreement. 10. Hold Harmless. Developer will indemnify 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, fkom and against all loss, all risk of loss and all damage (including expense) 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 or obtained, allegedly caused by, arising out of or relating in any manner to Developer's performance or non-performance pursuant to this Agreement, and shall protect and defend Indemnitees, and any of them with respect thereto. The provisions of this section shall survive expiration or other termination of this Agreement or any release of part or all of the Property fiom the burdens of this Agreement: and the provisions of this Section 9 shall remain in full force and effect 1 1. Insurance Reauirements: Developer shall obtain, at its expense, comprehensive general liability insurance for the development of the Subject Property naming hdemnitees as additional named insureds with aggregate limits of not less than five million dollars ($5,000,000) for bodily injury and death and property damage, including coverages for contractual liability and products and completed operations, purchased by Developer or its successors or assigns fi-om an insurance company duly licensed to engage in the business of issuing such insurance in the State, 5 with a current Best's Key Rating of not less than A-:V, such insurance to be evidenced by an endorsement which so provides and delivered to the Housing and Redevelopment Department prior to the issuance of any building permit for the Subject Property.. 12. Notices. All notices required pursuant to this Agreement shall be in writing and may be given by personal delivery or by registered or certified mail, return receipt requested, to the party to receive such notice at the addressed set forth below: TO THE CITY OF CARLSBAD CITY OF CARLSBAD Housing and Redevelopment Department Attn: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, California 92008-2389 TO THE DEVELOPER: Attn: Any party may change the address to which notices are to be sent by notifying the other parties of the new address in the manner set forth above. 13. the parties and no modification hereof shall be binding unless reduced to writing and signed by the parties hereto. Integrated Agreement. This Agreement constitutes the entire Agreement between 14. Duration of Agreement. This Agreement shall terminate and become null and void upon the earlier of (a) the closing of the sale of the last of the Affordable Units to an individual purchaser pursuant to a sale on an approved public report in compliance with the California Subdivided Lands Act, or (b) upon the granting of a written release by the Community Development Director. This Agreement, and any section, subsection, or covenant contained herein, may be amended only upon the written consent of Developer and the Community Development Director. 15. Recording of Agreement. The parties hereto shall cause this Agreement to be recorded against the Subject Property in the Official Records of he County of San Diego. 16. Severability. In the event any limitation, condition, restriction, covenant, or provision contained in this Agreement is to be held invalid, void or unenforceable by any court of competent jurisdiction, the remaining portions of this Agreement shall nevertheless be and remain in full force and effect. 6 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the day and year first above written. DEVELOPERS CITY City of Carlsbad, a Municipal corporation By: By: Sandra L. Holder Community Development Director (Print Name & Title) By: (Print Name & Title) Proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, Secretary, President, or Vice-president **Group B. Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney By: Assistant City Attorney 7 ATTACHMENT A LEGAL DESCRIPTION OF SUBJECT PROPERTY a ATTACHMENT B LEGAL DESCRIPTION OF OFF-SITE COMBINED PROJECT 9 ORDER NO 40303873-40 EXHIBIT "A" PARCEL A: AN UNDIVIDED 1/108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81-41, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, EXCEPTING THEREFROM THE FOLLOWING: (A) ALL UNITS AS SHOWN UPON THE GROVE PHASE I CONDOMINIUM PLAN (HEREINAFTER "CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE NO. 83-337701 AND RE- RECORDED DECEMBER 7, 1983 AS FILE NO. 83-444150 BOTH OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO. (B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS BALCONY, PATIO, STORAGE, COVERED PARKING SPACE AND PARKING SPACE EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO. PARCEL B: UNIT LU 234 AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO ABOVE. PARCEL C: EXCLUSIVE RIGHT TO USE, POSSESSION 'AND OCCUPANCY OF THOSE PORTIONS OF PARCEL A DESCRIBED ABOVE DESIGNATED AS B 234, CPS-234, P , S-234, AND PS-234, AS APPURTENANT TO PARCELS A AND B ABm DESCRIBED. PARCEL D: .. -4- ORDER NO 40303873-40 A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH EASENENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY, UPON RECORDATION OF A DECLNXATION OF ANNEXATION DECLARING SUCH LOTS, RESPECTIVELY, ~ TO BE SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES THE OWNERS OF SAID LOTS, RESPECTIVELY, TO BE MEMBERS OF THE ASSOCIATION (AS DEFINED BELOW) ALL AS MORE FULLY SET FORTH IN THE DECLARATION TO WHICH REFERENCE IS HEREAFTER MADE. THE COMMON AREA REFERRED TO HEREIN AS TO EACH OF SAID LOTS SHALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND PORTION THEREOF WHICH-MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA. PA~CEL E: A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG, ACROSS AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS: A STRIP OF LAND 7.50 FEET, LYING WITHIN SAID LOT 2, THE WESTERLY, NORTHERLY AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE BOUNDARY LINE OF SAID LOT NORTH 30" 32' 30" EAST, 325.37 FEET; THENCE SOUTH 64O 47' 19" EAST, 56.45 FEET; THENCE SOUTH 25" 40' 47" EAST 219.40 FEET; THENCE SOUTH 67" 11' 43" EAST, 16.00 FEET; THENCE NORTH 57" 33' 00" EAST, 85.00 FEET. ALSO THE SOUTHEASTERLY 75.00 FEET OF LOT 3. SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE OWNERS OF LOT 1 OF CARLSBAD TRACT 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS SAID EASEMENT SHALL BE APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH THE COVENANTS, CONDITIONS AND RESTRICTIONS. NOTE : SAID COVENANTS, CONDITIONS AND RESTRICTIONS WERE RECORDED SEPTEMBER 21, 1983 AS FILE NO. 83-337702 OF OFFICIAL RECORDS. -5- &WT# 33Lj ORDER NO 40303874-40 EXHIBIT "A". A CONDOMINIUM COMPRISED OF: PARCEL A: AN UNDIVIDED 1/108TH INTEREST IN AND TO LOT 1 OF CARLSBAD TRACT NO. 81-41, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, ,STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, SEPTEMBER 19, 1983. EXCEPTING THEREFROM THE FOLLOWING: (A) ALL UNITS AS SHOWN UPON THE GROVE PHASE 1 CONDOMINIUM PLAN ("CONDOMINIUM PLAN") RECORDED SEPTEMBER 21, 1983 AS FILE/PAGE NO. 83-337701 OF OFFICIAL RECORDS OF THE COUNTY RECORDER OF COUNTY OF SAN DIEGO AND RE-RECORDED DECEMBER 7, 1983 AS FILE/PAGE NO. 83-444150 OF OFFICIAL RECORDS. (B) THE EXCLUSIVE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED AS -BALCONY, PATIO, STORAGE, COVERED PARKING SPACE AND PARKING SPACE EXCLUSIVE USE AREAS AS SHOWN UPON THE CONDOMINIUM PLAN ABOVE REFERRED TO. PARCEL B: UNIT LU 334, AS SHOWN UPON THE CONDOMINIUM PLAN REFERRED TO ABOVE. PARCEL C: EXCLUSIVE RIGHT TO USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF PARCEL A DESCRIBED ABOVE DESIGNATED ON SAID CONDOMINIUM PLAN AS EXCLUSIVE USE AREAS AS APPURTENANT TO PARCELS A AND B ABOVE DESCRIBED. -4- .. ORDER NO 40303874-40 PARCEL D: A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS, USE AND ENJOYMENT OVER THE COMMON AREA OF LOTS 2 AND 3 OF CARLSBAD TRACT NO. 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, ON SEPTEMBER 19, 1983 WHICH EASEMENT IS APPURTENANT TO PARCELS A, B, AND C DESCRIBED ABOVE. THIS EASEMENT SHALL BECOME EFFECTIVE AS TO EACH OF SAID LOTS, RESPECTIVELY, UPON RECORDATION OF A DECLARATION OF ANNEXATION DECLARING SUCH LOTS, RESPECTIVELY, TO BE SUBJECT TO THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS TO WHICH REFERENCE IS HEREAFTER MADE OR A SEPARATE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS WHICH REQUIRES THE OWNERS OF SAID LOTS, RESPECTIVELY, TO BE MEMBERS OF THE ASSOCIATION, ALL AS MORE FULLY SET FORTH IN COMMON AREA REFERRED TO HEREIN, AS TO EACH OF SAID LOTS SHALL BE SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN OR PLANS RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA. EXCEPTING THEREFROM ANY RESIDENTIAL BUILDINGS THEREON AND ANY PORTION THEREOF WHICH MAY BE DESIGNATED AS AN EXCLUSIVE USE AREA. THE DECLARATION TO WHICH REFERENCE IS HEREAFTER MADE. THE PARCEL E: ACROSS AND THROUGH THAT REAL PROPERTY DESCRIBED AS FOLLOWS: A STRIP OF LAND 7.50 FEET LYING WITHIN SAID LOT 2, THE WESTERLY, NORTHERLY AND EASTERLY BOUNDARY OF SAID STRIP OF LAND BEING DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHWESTERLY CORNER OF SAID LOT 2; THENCE ALONG THE BOUNDARY LINE OF SAID LOT NORTH 30' 32' 30" EAST 325.37 FEET; THENCE SOUTH 64' 47' 19" EAST 56.45 FEET; THENCE SOUTH 25' 40' 47'' EAST 219.40 FEET; THENCE SOUTH 67' 11' 43'' EAST 16.00 FEET; THENCE NORTH 57' 33' 00" EAST 85.00 FEET. ALSO THE SOUTHEASTERLY 7.50 FEET OF LOT 3. A NON-EXCLUSIVE EASEMENT FOR INGRESS AND EGRESS OVER, ALONG, SAID NON-EXCLUSIVE EASEMENT SHALL BE FOR THE BENEFIT OF THE OWNERS OF LOT 1 OF CARLSBAD TRACT 81-41, AS PER MAP THEREOF NO. 10725, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, STATE OF CALIFORNIA, THEIR SUCCESSORS IN INTEREST, HEIRS AND ASSIGNS WITH SAID EASEMENT SHALL BE APPURTENANT TO SAID LOT 1 AND SHALL RUN WITH THE LAND IN ACCORDANCE WITH THE COVENANTS, CONDITIONS AND RESTRICTIONS. -5- I , :. . , .. 1 167-,250 .. -4 1' ,. *._ . r- llllll 111111111 IIII~11 liIlllllI 111111111 SCALE IN 1/10 OF AH INCH 2 3 5 6 PAR I @ 18.00 AC. \ I+ CONDM \ THE GROVE- PHME m ---. --. - .- I . 4 167-25 SHT IOF 2 ..'MbP 10725- CARLSBAD TCT NO. 81-41 CO ' MAP 10161 - CARLSBAD TCT NO 79-27 ([COl S-RIIh - POR W '1/2 JUL 0 819% .:.. , ... . . : .. 'b 4 5g T! 5= -fl V z? 5 I I .I k’ ~ --. r I rw+ . v, m m T 5 n I ‘. ATTACHMENT C LOCATION, SIZE, AND BEDROOM COUNT OF AFFORDABLE UNITS IO ATTACHMENT D SCHEDULE OF MAXIMUM ELIGIBLE BUYER INCOMES AND AFFORDABLE SUBSIDIZED PURCHASE PRICES 11 For-Sale Product Affordable Housing Calculation Maximum Selling Price Example As sump tions : One Bedroom Unit: 5% of market appraised value for down payment; 1.5 person household @ 80% of AMI; 30% front end ratio; interest rate of 6.5% Median Household Annual Income: Maximum Monthly Payment: $38,350 $ 959 Housing Costs: Private Mortgage Insurance Property Taxes HOA Dues Utility Allowance Principal & Interest Total Monthly Payment $ 40 $ 175 $ 140 $ 38 $ 556 $ 959 1 st Trust Deed Loan Down Payment Maximum Purchase Price $ 90,000 $ 8,750 $ 98,750 Appraised Value of Home: $.175,000 Max. Purchase Price (for 80% AMI): 98,750 Gap Financing Required: ($ 76,250) Builder Silent Second $76,250 (43.6% of appraised value) * ATTACHMENT 3 Farber Jefferson Street Condominiums NOTICE TO BORROWER: THIS NOTE CONTAINS PROVISIONS RESTRICTING ASSUMPTION PROMISSORY NOTE Secured by Deed of Trust Carlsbad, California 7 200- FOR VALUE RECEIVED, the undersigned (the "Borrower") promises to pay to the Carlsbad Redevelopment Agency, a body corporate and politic (the "Agency"), or order, at the Housing and Redevelopment Department, 2965 Roosevelt Street, Suite B, Carlsbad, California 92008, or such Contingent Interest calculated pursuant to Section 4 below. other place as the Agency may designate in writing, the principal sum of $ 7 plus 1. Purpose of Loan. Borrower is purchasing the Residence located at in the City of Carlsbad. This Note evidences a loan made by the Seller of the Residence (the "Seller") to the Borrower, utilizing subsidy funds provided by the Agency and the Seller, and assigned by the Seller to the Agency (the "Agency/Seller Loan"). The Agency/Seller Loan is in the amount determined by the Agency 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 Agency/Seller Loan. The Seller made the Agency/Seller Loan to the Borrower and assigned the AgencyISeller Loan to the Agency in fulfillment of certain inclusionary housing obligations pursuant to City of Carlsbad Municipal Code Chapter 21.85 and an Affordable Housing Agreement between the Seller and the Agency dated in the Official Records of San Diego County. and recorded as Document No. 2. Definitions. The terms set forth in this Section shall have the following a. meanings in this Note. 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 13 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. "Appreciation Amount" shall mean the amount calculated by 1 b. "Contingent Interest" shall mean the percentage of the Appreciation Amount set out in Section 4. C. "Fair Market Value" shall be determined by a real estate appraisal made by an independent residential appraiser designated by the Agency. If possible, the appraisal shall be based upon the sales prices of comparable properties sold in the market area during the preceding three-month period. The cost of the appraisal shall be paid by the Borrower. Nothing in this subparagraph shall preclude the Borrower and the Agency from establishing the Fair Market Value of the Residence by mutual agreement in lieu of an appraisal. d. "First Mortgage" shall mean the promissory note and deed of trust evidencing and securing the first mortgage loan for the Residence. e. "Residence" shall mean the housing unit and land encumbered by the deed of trust executed in connection with this Note. f. "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) to an existing spouse or child of the Borrower by devise or inheritance following the death of the Borrower; (v) by the Borrower into an inter vivos trust in which the Borrower is the beneficiary; or (vi) 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 14 below. 3. -. This Note is secured by a second deed of trust dated the same date as this Note (the "Deed of Trust"). 4. Contingent Interest. The Borrower shall pay contingent interest equal to percent ( %) ("Contingent Interest Percentage Amount") [seller to insert appropriate percentage which shall in no event exceed (SO%)] 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 Agency at the time set forth in Section 7(a) below, unless forgiven by the Agency pursuant to Section 7(b) below. Borrower acknowledges that the Contingent Interest Percentage Amount is equal to the Agency/Seller Loan principal amount as a percentage of the total purchase price of the Residence paid by the Borrower at the time of purchase, multiplied by seventy-five one hundredths (.75). Borrower acknowledges that this calculation of the percentage of the Appreciation Amount due to the Agency as Contingent Interest includes a twenty-five percent (25%) discount to Borrower to account for any capital improvements Borrower may make to the Residence. 2 5. Term. The Term of this Note shall mean the period commencing on the date of this Note and expiring on the date thirty (30) years thereafter. 6. Owner-Occupancy Required: Representations Regarding Income. a. 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 Agency that the Borrower is occupying the Residence as his or her principal place of residence. The Borrower shall not lease the Residence to another party. Any lease of the Residence shall be a default under this Note. b. Borrower hereby certifies that all income information previously submitted to the Seller and/or the Agency is true and correct. Misrepresentation by Borrower of income information provided to the Seller and/or the Agency shall be a default under this Note. 7. Resale Restriction The Agency and the Developer have provided financial assistance to the developer to assist in making the Farber Jefferson Street Condominiums affordable. Your new home is affordable to you because the Agency and the developer are providing you with second mortgage financing through the Farber Jefferson Street Condominiums Homebuyer Assistance Program (the "Program") so that you will be able to buy your home. As such, there are restrictions in your Deed of Trust and Promissory Note that limit your ability to sell your home, the sales price at which you are able to sell your home, and of the amount of income the purchaser of the home may earn in a year. Beginning on the date you purchase your home (close escrow) and for fifteen years thereafter, you may only sell your home to a qualified lower income household. A lower income household is one in witch the households gross annual income does not exceed 80% of the median income for San Diego County, adjusted for assumed household size. Further, the sales price can increase above the original sales price by an amount that is equal to the increase annual increase in the San Diego Area Median Income. Median income figures shall be those published annually by the United States Department of Housing and Urban Development. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the Department of Housing and Urban Development. Assumed household size figures shall be provided by the Agency. Fifteen (15) business days prior to the completion of the sales transaction (close o f escrow), the seller must provide documentation to the satisfaction of the Agency that the new home buyer is in fact a lower income household and the sales price is affordable to that lower income household. Beginning sixteen (16) years after the initial purchase of the home, the home units may be sold at a market price to non low income households provided that the sale shall result in the recapture by the City or its designee of a financial interest in the units equal to the amount of 3 subsidy necessary to make the unit affordable to the designated income group and a proportionate share of any appreciation. The repayment process of the Agency loan is explained below. 7. Repayment. a. 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 Agency to declare them due in the event of a subsequent Transfer. b. In the event, upon expiration of the Term, (i) no Transfer has occurred, (ii) Borrower has repaid all principal pursuant to subsection (a) above, (iii) Borrower continues to owner-occupy the Residence, and (iv) Borrower is not in default hereunder or under the Deed of Trust, the Agency shall forgive repayment of all Contingent Interest due hereunder. 8. Late Payment Fees. If any payment due hereunder is not paid within five (5) days from the date it is due, Borrower shall pay a reasonable late or collection charge equal to five percent (5%) of the amount so unpaid. The Agency and Borrower agree that the actual damages and costs sustained by the Agency due to the failure to make timely payments would be extremely difficult to measure and that the charges specified in this paragraph represent a reasonable estimate by Borrower and the Agency of a fair average compensation for such damages and costs. Such charges shall be paid by Borrower without prejudice to the right of the Agency to collect any other amounts provided to be paid under this Note or the Deed of Trust or, with respect to late payments, to declare a default. 9. Prepayments. The Borrower may prepay all or part of the balance due under this Note including principal and Contingent Interest. In the event the entire amount of principal due under this Note is prepaid, all Contingent Interest, calculated as of the date of prepayment, shall also be due at the time of prepayment. 10. No Assumption of Note. The Borrower acknowledges that this Note is given in connection with the purchase of property (the "Residence") as part of a program of the Agency to assist in the purchase of homes by lower income persons. Consequently, this Note may be assumed or will be due in full upon Transfer per the requirements of Section 7. 1 1. 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. 12. 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 4 of Trust shall be subordinated to the refinanced loan, provided that (i) such refinancing is approved by the Agency, (ii) the amount refinanced does not exceed the outstanding principal balance of the First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii) the refinance does not result in higher monthly payments on the First Mortgage Loan than were due prior to the refinance. 1 3. Certification of Purchase Price on Transfer. Upon any sale of the Residence, the Borrower shall submit to the Agency at least fifteen (1 5) 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 Agency 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. 14. Notice to Agency of Transfers. Borrower shall provide the Agency with written notice of any Transfer of the Residence or 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). Borrower shall provide this notice to the Agency no later than fifteen (1 5) days before the Transfer occurs, except where the Transfer is by devise or inheritance after death of the Borrower in which event notice shall be provided within thirty (30) days of the date of Transfer. 15. Default. a. The Borrower shall be in default under this Note if he or she is in default under the First Mortgage following the expiration of First Mortgage cure periods, or if, after the notice and cure period provided by the Agency 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. b. 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 Agency, prior to acceleration, will send, in the manner set forth in Section 20 notice to the Borrower specifjmg: (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 Agency. 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. 16. Acceleration. _Upon the occurrence of a default under this Note, the Deed of Trust, or the First Mortgage, the Agency shall have the right to declare the full amount of the 5 principal along with any Contingent Interest under this Note immediately due and payable. Any failure by the Agency to pursue its legal and equitable remedies upon default shall not constitute a waiver of the Agency'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 Agency of any payment provided for herein constitute a waiver of the Agency's right to require prompt payment of any remaining principal and interest owed. 17. No Offset. The Borrower hereby waives any rights of offset it now has or may later have against the Agency, its successors and assigns, and agrees to make the payments called for in this Note in accordance with the terms of this Note. 18. 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. 19. No Waiver by the Agency. No waiver of any breach, default or failure of condition under the terms of this Note shall be implied from any failure of the Agency 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. 20. 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 refbsed, or the date the notice was returned as undeliverable as follows: To the Borrower: At the address of the Residence. To the Agency: Carlsbad Redevelopment Agency Housing and Redevelopment Department Attention: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 6 The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this Section 20. 21. 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. 22. Nonliabilitv for Negligence, Loss, or Damage. Borrower acknowledges, understands and agrees that the relationship between Borrower and the Agency is solely that of borrower and lender, and that the Agency does not undertake or assume any responsibility for or duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability of the Residence or any other matter. The Agency owes no duty of care to protect Borrower against negligent, faulty, inadequate or defective building or construction or any condition of the Residence and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against the Agency for any loss, damage or other matter arising out of or resulting from any condition of the Residence and will hold the Agency harmless from any liability, loss or damage for these things. 23. Indemnitv. Borrower agrees to defend, indemnifl, and hold the Agency harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable attorneys fees that the Agency may incur as a direct or indirect consequence of: a. the making of the loan to Borrower; b. Borrower's failure to perform any obligations as and when required by the Note or the Deed of Trust; or c. the failure at any time of any of Borrower's representations to the Seller or the Agency to be true and correct. 24. Termination of Restrictions. Any legal restrictions on conveyance of the Residence (as defined in 24 CFR 203.41(a)(3)(u)) included in this Note shall terminate upon transfer of the Residence by foreclosure, deed in lieu of foreclosure, or assignment to the Secretary of the United States Department of Housing and Urban Development. 25. Controlling Law. This Note shall be construed in accordance with and be governed by the laws of the State of California. 26. Assiment bv Agency. The Agency may assign its right to receive the proceeds under this Note to any person and upon notice to the Borrower by the Agency all payments shall be made to the assignee. 27. 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 7 this Note, and this Note shall be construed as if such invalid, illegal or unenforceable provision had never been contained in this Note. 28. Entire Am-eement. This Note (along with the Deed of Trust) sets forth the entire understanding and agreement of the Agency and the Borrower and any amendment, alteration or interpretation of this Note must be in writing signed by both the Agency and the Borrower. Borrower (Print Name) Borrower (Print Name) 8 PROMISSORY NOTE ADMINISTRATIVE COVER SHEET (Remove Upon Completion) BLANK LINES: CHECKLIST Amount of Agency Loan, p. 1, upper left Date of Document, p. 1, upper right Borrower's Name, p. 1, first paragraph Amount of Agency 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 Signatures, p. 7 RECORDING REQUESTED BY AND WHEN RECORDED MAIL. TO: Agency of Carlsbad Agency Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 Attention: Agency Clerk No fee for recording pursuant to 7181 (Space above for Recorder's Use) NOTE TO BORROWER: THIS DEED OF TRUST CONTAINS PROVISIONS PROHIBITING ASSUMPTIONS THIS DEED OF TRUST AND SECURITY AGREEMENT ("Deed of Trust") made as of this day of ,2003, among ("Borrower") as trustor, and the Carlsbad Redevelopment Agency, a body corporate and politic (the "Agency"), as beneficiary. ("Trustee"), and 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 Agency of Carlsbad, State of California, described in the attached Exhihit !!A!! (the "Property"). TOGETHER with all the improvements now or hereafter erected on the property, and all easements, rights, appurtenances, and all fixtures now or hereafter attached to the property, all of which, including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Deed of Trust; and TOGETHER with all articles of personal property or fixtures now or hereafter attached to or used in and about the building or buildings now erected or hereafter to be erected on the Property which are necessary to the complete and comfortable use and occupancy of such building or buildings for the purposes for which they were or are to be erected, including all other goods and chattels and personal property as are ever used or furnished in operating a building, or the activities 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"; 1 To have and to hold the Security together with acquittances to the Trustee, its successors and assigns forever; TO SECURE to the Agency the repayment of the sums evidenced by a promissory note executed by the Borrower to the Agency dated ,2003, in the amount of Dollars ($ ) (the "Note"); TO SECURE to the Agency 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 AGENCY COVENANT AND AGREE AS FOLLOWS: 1. Bnrmnwer's Fktak. That the Borrower is lawfully seized of the estate hereby conveyed and has the right to grant and convey the Security, that other than this Deed of Trust, the Security is encumbered only by 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 Lender, and recorded in the County of San Diego on ,2003, and as Document 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 Agency'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.) ,2003, executed by the Borrower in favor of First 2. Ihpymmtentnf. 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. the ,hmm@bnnf 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 may be transferred under certain circumstances as permitted by the Note or due in full upon a Transfer as defined in the Note. 3. and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender loan documents. First TRnder. The Borrower will observe and perform all of the covenants 2 4. cv Requid. 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 (1 0) months out of each calendar year. The Borrower shall provide an annual written certification to the Agency that the Borrower is occupying the Property as his or her principal place of residence. 5. -. The Borrower will pay all taxes, assessments and other charges, fines and impositions attributable to the Security which may attain a priority senior to this Deed of Trust, by the Borrower making any payment, when due, directly to the payee thereof. The Borrower will promptly furnish to the Agency 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 senior to 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 Agency, or will, in good faith, contest such lien by, or defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement of the lien or forfeiture of the Security or any part thereof. 6. Hazard. 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 Agency; provided, that such approval will not be withheld if the insurer is also approved by the First Lender, the Federal Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of Housing and Urban Development, the United States Department of Veterans Affairs, or successors thereto. All insurance policies and renewals thereof will be in a form acceptable to the Agency and will include a standard mortgagee clause with standard lender's endorsement in favor of the holder of the First Lender Note and the Agency as their interests may appear and in a form acceptable to the Agency. The Agency 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 Agency, 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 Agency or its designated agent. The Agency, or its designated agent, may make proof of loss if not made promptly by the Borrower. The Agency shall receive thirty days advance notice of cancellation of any insurance policies required under this section. Unless the Agency 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, 3 . 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 Agency, 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 Agency, or its designated agent, is authorized, subject to the rights of the First Lender, to collect and apply the insurance proceeds at the Agency'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 Agency, 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 Agency to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender. 7. u. The Borrower will keep the Security in good repair and will not commit waste or permit impairment or deterioration of the Security. 8. Pmt& of theAgcy's Seudy. 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 Agency'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 Agency, at the Agency'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 Agency's interest, including but not limited to, disbursement of reasonable attorney's fees and entry upon the Security to make repairs. Any amounts disbursed by the Agency pursuant to this paragraph, with interest thereon, will become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower and Agency agree in writing to other terms of payment, such amount will be payable upon notice from the Agency to the Borrower requesting payment thereof, and will bear interest from the date of disbursement at the lesser of (1) ten percent (1 0%) per annum or (2) the highest interest rate permissible under applicable law. Nothing contained in this paragraph will require the Agency to incur any expense or take any action hereunder. 9. Inpxhn. The Agency may make or cause to be made reasonable entries upon and inspections of the Security; provided that the Agency will give the Borrower reasonable notice of inspection. 10. hv the Agfmv Nnt a Waiuer. Any forbearance by the Agency 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 Agency will not be a waiver of the Agency's right to accelerate the maturity of the indebtedness secured by this Deed of Trust. 4 11. Remedies. All remedies provided in this Deed of Trust are distinct and cumulative to any other right or remedy under this Deed of Trust or any other document, or afforded by law or equity, and may be exercised concurrently, independently or successively. 12. m. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the Agency and the Borrower subject to the provisions of this Deed of Trust. 13. Sev euUhMi@. All covenants and agreements of the Borrower shall be joint and several. 14. 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 Borrower. To the Agency: Carlsbad Redevelopment Agency Housing and Redevelopment Department Attn: Housing and Redevelopment Director 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 The parties may subsequently change addresses by providing written notice of the change in address to the other parties in accordance with this section. 15. TAW. This Deed of Trust shall be construed in accordance with and be governed by the laws of the State of California. .. 16. rnvi. 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. 17. Captbs. 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. 5 18. -. 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 Agency, 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 Agency, at the Agency'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 Agency 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 q., 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 Agency shall be entitled to collect a11 reasonable costs and expenses incurred in pursuing the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees. 19. 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 Agency 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 Agency to pursue its legal and equitable remedies upon default shall not constitute a waiver of the Agency's right to declare a default and exercise all of its rights under the Note and this Deed of Trust. Nor shall acceptance by the Agency of any payment provided for in the Note constitute a waiver of the Agency's right to require prompt payment of any remaining principal and interest owed. 6 20. nwer I’ s -. Notwithstanding the Agency’s acceleration of the sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings begun by the Agency 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 Agency all sums, if any, which would be then due under this Deed of Trust as if 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 Agency and the Trustee in enforcing the covenants and agreements of the Borrower contained in this Deed of Trust, and in enforcing the Agency‘s and the Trustee’s remedies, including, but not limited to, reasonable attorney’s fees; and (d) the Borrower takes such action as Agency may reasonably require to assure that the lien of this Deed of Trust, Agency’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. 21. IZecm-m. Upon payment or forgiveness of all sums secured by this Deed of Trust, the Agency 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. 22. Trustee. The Agency, at the Agency’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. 23. n First Mortgage. Notwithstanding any other provision hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender Deed of Trust and shall not impair the rights of the First Lender, or the First Lender’s successor or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default under the First Lender Deed of Trust by the Borrower. Such remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure, or upon assignment of the First Lender Deed of Trust to the Secretary of the United States Department of Housing and Urban Development (the “Secretary”), this Deed of Trust shall be forever terminated and shall have no further effect as to the Property or any transferee thereafter; provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender’s Deed of Trust is assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition of title, or assignment to the Secretary provided that (i) the Agency has been given written notice of default under such First Lender Deed of Trust and (ii) the Agency 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. 7 24. Attorney's Fees . If any action or proceeding is brought to enforce this Deed of Trust or any provision of this Deed of Trust or the Note, the prevailing party shall be entitled to its attorney's fees and the cost of such action or proceeding. IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date first written above. Borrower (Print Name) (Print Name) 8 EXHIBIT A Property Description r. DEED OF TRUST AND SECURITY AGREEMENT AGENCY OF CAIUSBAD ADMINISTRATIVE CHECKLJST (Remove Upon Completion) K 1,lN- 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 ExhhL4 , Property Description Notary .. BORROWER DISCLOSURE STATEMENT Farber Jefferson Street Condominiums The Carlsbad Redevelopment Agency (the "Agency"), through the City of Carlsbad Inclusionary Housing Ordinance, has required the developer of the Farber Jefferson Street Condominiums development 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 Agency has also provided financial assistance to the developer to assist in making the Farber Jefferson Street Condominiums affordable. Your new home is affordable to you because the Agency and the developer are providing you with second mortgage financing through the Farber Jefferson Street Condominiums Homebuyer Assistance Program (the "Program") so that you will be able to buy your home. The Agency offers the Program in order to enable low income households to own their own homes in Carlsbad. As a condition of the financing, the Agency will require you to sign a Promissory Note and a Deed of Trust. The Deed of Trust will be recorded against your property. 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 Agency 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 home you buy with the assistance of the Agency loan must be your main place of residence. This means you must live in the home no less than 10 months out of each calendar year. Each year, you must certifL in writing to the Agency 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 Agency may declare its loan immediately due and payable. B. RESALE RESTRICTIONS The Agency and the Developer have provided financial assistance to the developer to assist in making the Farber Jefferson Street Condominiums affordable. Your new home is affordable to you because the Agency and the developer are providing you with second mortgage financing through the Farber Jefferson Street Condominiums Homebuyer Assistance Program (the "Program") so that you will be able to buy your home. As such, there are restrictions in your Deed of Trust and Promissory Note that limit your abilitv to sell your home, the sales price at which you are able to sell your home, and of the amount of income the purchaser of the home may earn in a year. Beginning on the date you purchase your home (close escrow) and for fifteen years thereafter, you may only sell your home to a qualified lower income household. A lower income household is one in which the households gross annual income does not exceed 80% of the median income for San Diego County, adjusted for assumed household size. Further, the sales price can increase above the original sales price by an amount that is equal to the increase annual increase in the San Diego -1 - Area Median Income. Median income figures shall be those published annually by the United States Department of Housing and Urban Development. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (1 8) months, the City shall provide the Owner with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by the Department of Housing and Urban Development. Assumed household size figures shall be p rovided b y the A gency. F ifteen ( 15) business days prior to the completion of the sales transaction (close of escrow), the seller must provide documentation to the satisfaction of the Agency that the new home buyer is in fact a lower income household and the sales price is affordable to that lower income household. Beginning sixteen (1 6) years after the initial purchase of the home, the home units may be sold at a market price to non low income households provided that the sale shall result in the recapture by the City or its designee of a financial interest in the units equal to the amount of subsidy necessary to make the unit affordable to the designated income group and a proportionate share of any appreciation. The repayment process of the Agency loan is explained below. C. NOTICES TO AGENCY 1. Notice of Intent to Sell, Assign 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 Agency know in writing at least fifteen business (1 5) days prior to the sale, assignment, transfer, or the recording of a mortgage or deed of trust. 2. Notice and Certification of Purchase Price. If you go to sell your home, at least fifteen business (1 5) days before the sale closes (close of escrow), you must give the Agency 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 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 fkom the proposed buyer, or anybody else, money or other consideration that is not included in the sales contract. 3. Deliverv of Required Notices. Any notice you must provide to the Agency under the terms of the Agency 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. D. INTEREST ON THE AGENCY LOAN: "CONTINGENT INTEREST" When the loan is eligible to be repaid under the terms and conditions listed in Section B above, the Agency loan charges "contingent interest". The contingent interest represents the benefit you received fkom the Agency loan, and may generally be described as the percentage of the sales price that the Agency loaned to you, with an adjustment or discount applied. The contingent interest on your loan is due immediately if: -2- $ $ $ You default under the Agency 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 Agency 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 home. An example is used to show each of the three (3) parts and how each would be calculated. Your loan fkom the Agency is $1 8,200. The original sales price you paid for your home was $140,000. When you sell, the sales price is $173,600. Example 1 1. Appreciation 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 Home When You Sell: $173,600 Minus Price of Home When You Bought: - $140,000 Appreciation Amount: $33,600 The appreciation amount is calculated differently under certain circumstances. If you (a) prepay your Agency loan, or (b) transfer your home by means other than selling it, or (c) are in default under the terms of the Agency loan, the appreciation amount will be figured by using the Fair Market Value of the home (instead of the price of the home when you sell, as above). Fair Market Value is the value of the home as determined by an independent appraiser chosen by the Agency. If such an appraisal is necessary, the cost of the appraisal will 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 Agency loaned to you. This percentage is figured by dividing the amount of the Agency loan by the purchase price you paid for the home. Continuing with the example: Agency Loan Amount: Divided By $ 18,200 Price of Home When You Bought: f $140.000 Contingent Interest Percentage = 13100% Equals 3. Automatic Discount For Possible Capital Improvements. During the time that you -3- 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 Agency 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 Agency as follows: Appreciation Amount: $ 33,600 Contingent Interest Percentage X .13 $4,368.00 Multiplied By $4,368 Multiplied By Automatic Discount X .25 Total Dollar Amount of Discount $ 1,092.00 Contingent Interest Amount $ 4,368.00 Minus Contingent Interest You Owe Agency $ 3,276.00 Discount Amount - 1,092.00 The automatic capital improvement discount shall be calculated by the Agency 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 Contingent Interest Percentage x .13 $ 4,368 Contingent Interest You Owe Agency $ 3,276 Multiplied By Automatic Discount Applied x .75 E. PAYING BACK YOUR AGENCY LOAN 1. No Payments Required for 30 Years Unless You Sell, Transfer, or Default. Your loan from the Agency 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 may be immediately due and payable, per the terms and conditions of Section B above. The refinancing of your first mortgage loan does not trigger immediate payment of principal and contingent interest if the refinancing meets the terms of the Promissory Note (as described in section G. below). -4- 2. When You Sell Your Home. Per Section B above, 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 Agency loan when the home 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 Agency 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 Principal Owed Upon Sale. Since the Agency 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 Agency at the time of sale. In this example, the principal amount due is $18,200. (b) Amount of Contingent Interest Owed. To figure out the amount of contingent interest you owe the Agency, we need to calculate the appreciation amount and the contingent interest percentage, and then apply the automatic discount. Calculating the Appreciation Amount Sales Price of Your Home: Minus Price You Originally Paid: - !§ 140,000.00 Appreciation Amount $ 60,000.00 $200,000.00 Calculating the Contingent Interest Percentage Your Agency Loan divided by the Price You Originally Paid: Contingent Interest Percentage = 13% $18,200 + $140,000 = 0.13 Calculating Contingent Interest Owed (With Discount Applied) Appreciation Amount: $60,000.00 Contingent Interest Percentage X .13 $ 7,800.00 Automatic Discount X .75 Multiplied By Multiplied By Contingent Interest Owed Agency $5,850.00 Total You Owe Apency Upon Sale of the Home Principal Owed: $ 18,200.00 Plus Contingent Interest: + $ 5,850.00 Total Owed $ 24,050.00 F. 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) term, and You live in your home and there has been no sale or transfer during the entire 30 year (2) You have repaid all of the principal you owe the Agency, and (3) You are not in default under the Agency loan. G. REFINANCING FIRST MORTGAGE LOAN The Promissory Note allows you to refinance your first mortgage loan without triggering repayment o f y our A gency 1 oan i f t he following c onditions a re m et. T he refinancing m ust b e approved by t he Agency. 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 Agency loan may be required to be paid to the Agency when you refinance, per the terms and conditions listed in Section B above. G. DEFAULT PROVISIONS When you accept Agency loan assistance, you agree to meet all of the conditions of all of the Agency loan documents. If you violate any provisions of the documents, you are considered to be in default under your Agency loan. Also, if you default under the first mortgage loan, you would also be considered to be in default under the Agency loan. If you do not correct the violation, the Agency could require you to immediately repay the principal and contingent interest owing on the Agency loan. The Agency could also go to court and get a court order to enforce the provisions of the Agency loan documents, which may result in a foreclosure on your home. -6- Please sign the enclosed copy of this Borrower Disclosure Statement in the space provided below and return it to the Agency at 2965 Roosevelt Street, Suite B, Carlsbad, California, 92008-23 89. I have read and understand the above Borrower Disclosure Statement. By: By: Signature of Borrower Signature of Borrower Print Name of Borrower Print Name of Borrower Dated: Dated: -7- ATTACHMENT 4 BUENA VISTA VILLAGE OFF-SITE AND COMBINED INCLUSIONARY HOUSING PROJECT ASSESSMENT WORKSHEET 1. Feasibility of the on-Site Proposal a. Are there significant feasibility issues due to factors such as project size, site constraints, amount and availability of required subsidy, and competition from multiple projects that make an on-site option impractical? 0 The site is too small to effectively integrate two substantially different styles of units in such close proximity in a project of this size. A subterranean garage was employed in the complex design due to site restraints. There is not enough room on the site to successfully alter the complex design. b. Will an affordable housing product be difficult to integrate into the proposed market development because of significant price and product disparity? Price disparities would be substantial between the two proposed low- income for sale units and the project approved higher-end condominium units which have and estimated base price range from the mid $700,000.00’~ to the upper $800,000.00’~. The two for sale units would have to be priced under $200,000.00 to allow families with the highest level of income allowed by inclusionary housing guidelines to qualify to purchase the units. The differential is in the mid 300% to over 400% range. 0 The integration of two affordable condominium units, that would be from 725 to 1,100 sq. ft., into the complex with the approved 1900 to 2200 sq. ft. units, would result in major product type disparity on-site. The affordable units would be surrounded by the larger units that are dictated by market demand for an ocean-view site such as the subject property. The on-site project would, therefore, also result in substantial product disparity with the surrounding development character. c. Does the on-site development entity have the capacity to deliver the proposed affordable housing on-site? The design of the development would have to be compromised to alter the complex to include two substantially different units. Compromising the design would alter many of the features that make the proposed development a plus for the community. The project would change the 32% lot coverage when 60% is allowed, average front setbacks over 50 feet when 15 feet is allowed, underground parking to keep vehicles and garages unseen, and exceeding the minimum recreational space by approximately 30%. 2. Relative AdvantagesDisadvantages of the Off-site Prowsal a. Does the off-site option offer greater feasibility and cost effectiveness than the on-site alternative, particularly regarding potential local public assistance? 0 The Grove Complex is built and has proven its feasibility; no additional assistance is required. 0 The applicant’s provision of two for sale units in the Grove Complex will meet the City’s mandate to provide affordable housing. The on-site alternative is not economically feasible for the project. b. Does the off-site proposal have location advantages over the on-site alternative Such as proximity to jobs, schools, transportation services; less impact on other existing developments? 0 The location of The Grove Condominium complex has advantages over the on-site project in terms of access to employment in the large retail facilities across the street (El Camino Real), public transportation, library within walking distance, schools, parks, complex pool as well as other amenities and services due to being located directly next to a major thoroughfare, El Camino Real. 0 The Grove is a self-contained condominium development in an area designated for higher density residential development such as condominiums and townhomes. The on-site proposal could be a source of land-use conflicts that typically occur when attempting to locate affordable units on a small high-end site. - 0 c. Does the off-site option offer a development entity with the capacity to deliver the proposed project? The Grove is an existing development and managed by an experienced Homeowners Association. d. Does the off-site option satisfy multiple developer obligations that would be difficult to satisfy with multiple projects? 0 The Northwest Quadrant is currently lacking in City subsidized afford- . . able housing projects for developers to participate in to fulfill their affordable housing requirements. Small in-fill projects such as Buena Vista Village that meet a community housing need are unable to be built without the availability of off-site solutions. The proposed off-site solution that involves the provision of an existing market development for sale at a level affordable to low income households is one that allows other developers of small in-fill projects an economically feasible alternative to an on-site solution. This off-site solution benefits the community in general by providing both needed in- fill housing and affordable units for low-income households. 3. Advancing Housing Goals and Strategy a. Does the off-site proposal advance andor support City housing goals and policies expressed in the Housing Element, CHAS and Inclusionary Housing Ordinance? General Plan Housing Element and CHAS Goals: Providing two affordable units for sale at The Grove contributes to the highest priority need identified, units that low income households can afford to purchase. Provision of for sale units at The Grove will provide for available low- income housing without a cost to the City, preserving resources for additional affordable housing developments. Inclusionary Housing Ordinance Policies: 0 Consistent with the City and public interests to use existing units before supporting additional new construction. 0 In conjunction with the combined The Grove units, the Buena Vista Village development will provide for 15% of the total units for affordable (lower income) residential units. The project also complies with the Inclusionary requirements as contained in the General Plan Housing Element. Growth Management Zone, Ord. No. NS-257 Guidelines: The Grove is coordinated with surrounding properties by providing direct Access to a major Circulation Element Roadway, El Camino Real, as well as circulation and pedestrian access to public facilities. t r FARBER JEFFERSON STREET CONDO CT 02-1 3/CP 02-O8/CDP 02-32/SDP 02-1 4