HomeMy WebLinkAboutCogbill, Ronald and Christine; 2020-12-18;Recording Requested by:
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Recording requested by
and when recorded mail to:
City of Carlsbad
Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOC# 2020-0817947
1111111111111111111111111111111111111111111111111111111111111111111111
Dec 18, 2020 04:59 PM
OFFICIAL RECORDS Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER FEES: $0.90 (S92 Atkins: $0.00) •. PCOR: N/A
PAGES: 12
leeNo fee for recording pursuant to*
Government Code Section 27383
DEED OF TRUST AND SECURITY AGREEMENT
(City of Carlsbad Homebuyer Program)
Note to Borrower: This Deed of Trust contains provisions prohibiting assumption
THIS DEED OF TRUST AND SECURITY AGREEMENT ,(the "Deed of Trust")
is made as of this IP day of overnbeit , 20,20 among Ronald L. Cogbill and
Christine L. Cogbill, Husband and Wife as Joint Tenants ("Borrower(s)"), as Trustor, and
Chicago Title ("Trustee"), as trustee, and the City of Carlsbad, a municipal corporation ("City"),
as beneficiary.
The Borrower, in consideration of the promises herein recited and the trust herein
created, irrevocably grants, transfers, conveys and assigns to the Trustee, in trust, with power of
ale, the real property located in the City of Carlsbad, State of California, described in the
attached Exhibit A (the "Property");
TOGETHER with all the improvements now or hereafter erected on the real property
described in Exhibit A, 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 (collectively, the
"Property"); 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 hereqter 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 ortare &be erected, including all
other goods and chattels and personal property as are ever USA 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 substitutio0herefore, 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";
101011712045536,2
To have and to hold the Security together with acquittances to the Trustee, its successors
and assigns forever;
TO SECURE to the City the repayment of the sums evidenced by a promissory note in
the amount of Four Hundred Fourteen Thousand Dollars ($414,000) executed by the Borrower in
favor of the City as of the date of this Deed of Trust ("Note");
TO SECURE to the City the payment of all other sums, with interest thereon, advanced
in accordance herewith to protect the security of this Deed of Trust; and the performance of the
covenants and agreements of the Borrower herein contained;
TO SECURE to the City the performance of the covenants and agreements of Borrower
contained in that certain Declaration of Restrictive Covenants Regarding Restrictions on
Transfer of Property, Occupancy Restrictions, Refinancing Restrictions and Option to Purchase
executed by and between the Borrower and the City of even date herewith and recorded against
the Property on, or about, the date this Deed of Trust is recorded as a lien against the Property
(the" Resale Restriction Agreement ") and to secure the payment of Excess Sales Proceeds (as
defined in the Resale Restriction Agreement) and Unauthorized Rental Proceeds (as defined in
the Resale Restriction Agreement) that may become due by Borrower to City; and
TO SECURE the performance of any obligations of Borrower in any other agreements
with respect to the financing of the Property or the Security the failure of which would adversely
affect Beneficiary, whether or not Beneficiary is a party to such agreements.
BORROWER AND CITY COVENANT AND AGREE AS FOLLOWS:
1.Borrower's Estate. That the Borrower is lawfully seized of the estate hereby
conveyed and has the right to grant and convey the Security, that other than this Deed of Trust,
the Security is encumbered only by: (a) that deed of trust executed by the Borrower in
connection with a loan made to the Borrower by CrossCountry Mortgage, Inc. or its successors
and assigns (the "First Lender"), dated De. ce ',Moe tr n , 20 7-0, executed by the Borrower in
favor of First Lender, and recorded in the County of San Diego on 6°""4"in ,A , , 20 and
assigned Recorder's Serial No. cavt(ltriVil+ ("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; and (b) the Resale Restriction Agreement. The Borrower
agrees to warrant and defend generally the title to the Security against all claims and demands,
subject to any declarations, easements or restrictions listed in a schedule of exceptions to
coverage in any title insurance policy insuring the City's interest in the Security. (As used in this
Deed of Trust, the term "First Lender" shall include all successors and assigns of the First
Lender.)
2.Repayment of Loan; Prohibition on Assumptions. The Borrower will promptly
repay, when due, the principal, interest and other sums required by the Note and Resale
Restriction Agreement including all principal and interest on the Homebuyer Loan (as defined in
the Note) and the Excess Sales Proceeds and Unauthorized Rental Proceeds due under the Resale
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Restriction Agreement. Among other things, the Note contains the following provisions
concerning repayment of the loan under certain conditions:
Limitations on Assumption of Note. The Borrower acknowledges that this
Note is given in connection with the purchase of the Property as part of a
program of the City to assist in the purchase of homes by low and
moderate income persons. Consequently, this Note is only assumable by
Eligible Purchasers (as defined in the Resale Restriction Agreement).
This Note is due in full upon all other Transfers. In the event this Note is
assumed by an Eligible Purchaser, the Eligible Purchaser shall execute a
new note, which shall be in an amount equal to the principal and
Contingent Interest owed by Borrower, a new Deed of Trust and a new
Resale Restriction Agreement with a restarted term in forms approved by
the City.
3.First Lender Loan. The Borrower will observe and perform all of the covenants
and agreements of the First Lender Note, First Lender Deed of Trust, and related First Lender
loan documents.
4.Resale Restriction Agreement. The Borrower will observe and perform all of the
covenants and agreements of the Resale Restriction Agreement. Among other things, the Resale
Restriction Agreement requires the Borrower to utilize the Property as the Borrower's principal
residence, and restricts: (i) the Borrower's ability to transfer the Property, or the obligations
under the Note; (ii) the Borrower's ability to refinance the First Lender Note; and (iii) the
Borrower's ability to use the Property as security for additional loans or financing. The
Borrower's failure to comply with the requirements of the Resale Restriction Agreement
constitutes a default under this Deed of Trust.
5.Charges; Liens. The Borrower will pay all taxes, assessments and other charges,
fines and impositions attributable to the Security which may attain a priority over this Deed of
Trust, by the Borrower making any payment, when due, directly to the payee thereof. The
Borrower will promptly furnish to the City all notices of amounts due under this paragraph, and
in the event the Borrower makes payment directly, the Borrower will promptly discharge any
lien which has priority over this Deed of Trust; provided, that the Borrower will not be required
to discharge the lien of the First Lender Deed of Trust or any other lien described in this
paragraph so long as the Borrower will agree in writing to the payment of the obligation secured
by such lien in a manner acceptable to the City, or will, in good faith, contest such lien by, or
defend enforcement of such lien in, legal proceedings which operate to prevent the enforcement
of the lien or forfeiture of the Security or any part thereof.
6.Insurance. The Borrower will keep the Security insured with a standard fire and
extended coverage insurance policy in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessary to prevent the Borrower from becoming
a co-insurer under the terms of the policy.
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The insurance carrier providing this insurance shall be licensed to do business in the State
of California and be chosen by the Borrower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal
Home Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of
Housing and Urban Development, the United States Department of Veterans Affairs, or any
successor thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and
will include a standard mortgagee clause with standard lender's endorsement in favor of the
holder of the First Lender Note and the City as their interests may appear and in a form
acceptable to the City. The City shall have the right to hold, or cause its designated agent to
hold, the policies and renewals thereof, and the Borrower shall promptly furnish to the City, or
its designated agent, the original insurance policies or certificates of insurance, all renewal
notices and all receipts of paid premiums. In the event of loss, the Borrower will give prompt
notice to the insurance carrier and the City or its designated agent. The City, or its designated
agent, may make proof of loss if not made promptly by the Borrower. The City shall receive ten
(10) days advance notice of cancellation of any insurance policies required under this section.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject
to the rights of the First Lender, will be applied to restoration or repair of the Security damaged,
provided such restoration or repair is economically feasible and the Security of this Deed of
Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the
security of this Deed of Trust would be impaired, the insurance proceeds will be used, subject to
the rights of the First Lender, to repay the Note and all sums secured by this Deed of Trust, with
the excess, if any, paid to the Borrower. If the Security is abandoned by the Borrower, or if the
Borrower fails to respond to the City, or its designated agent, within thirty (30) days from the
date notice is mailed by either of them to the Borrower that the insurance carrier offers to settle a
claim for insurance benefits, the City, or its designated agent, is authorized, subject to the rights
of the First Lender, to collect and apply the insurance proceeds at the City's option either to
restoration or repair of the Security or to repay the Note and all sums secured by this Deed of
Trust.
If the Security is acquired by the City, all right, title and interest of the Borrower in and to
any insurance policy and in and to the proceeds thereof resulting from damage to the Security
prior to the sale or acquisition will pass to the City to the extent of the sums secured by this Deed
of Trust immediately prior to such sale or acquisition subject to the rights of the First Lender.
7. Preservation and Maintenance of Security. The Borrower will keep the Security
in good repair and will not commit waste or permit impairment or deterioration of the Security.
If there arises a condition in contravention of this section, and if the Borrower has not cured such
condition within thirty (30) days after receiving a City notice of such a condition, then in
addition to any other rights available to the City, the City shall have the right (but not the
obligation) to perform all acts necessary to cure such condition, and to establish or enforce a lien
or other encumbrance against the Security to recover its cost of curing.
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1010117\2045536.2
8.Protection of the City's Security. If the Borrower fails to perform the covenants
and agreements contained in this Deed of Trust, the Resale Restriction Agreement, the First
Lender Note, the First Lender Deed of Trust, or if any action or proceeding is commenced which
materially affects the City's interest in the Security, including, but not limited to, default under
the First Lender Deed of Trust, the First Lender Note, eminent domain, insolvency, code
enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the City, at
the City's option, upon notice to the Borrower, may make such appearances, disburse such sums
and take such action as it determines necessary to protect the City's interest, including but not
limited to, disbursement of reasonable attorney's fees and entry upon the Security to make
repairs.
Any amounts disbursed by the City pursuant to this paragraph, with interest thereon, will
become an indebtedness of the Borrower secured by this Deed of Trust. Unless the Borrower
and City agree in writing to other terms of payment, such amount will be payable upon notice
from the City to the Borrower requesting payment thereof, and will bear interest from the date of
disbursement at the lesser of ten percent (10%) or the highest rate permissible under applicable
law. Nothing contained in this paragraph will require the City to incur any expense or take any
action hereunder.
9.Inspection. The City may make or cause to be made reasonable entries upon and
inspections of the Security; provided that the City will give the Borrower reasonable notice of
inspection.
10.Forbearance by the City Not a Waiver. Any forbearance by the City in exercising
any right or remedy will not be a waiver of the exercise of any such right or remedy, nor shall
acceptance by the City of any payment provided for in the Note constitute a waiver of the City's
right to require prompt payment of any remaining principal and interest owed. The procurement
of insurance or the payment of taxes or other liens or charges by the City will not be a waiver of
the City's right to accelerate the maturity of the indebtedness secured by this Deed of Trust.
11.Hazardous Substances. Borrower shall not cause or permit the presence, use,
disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall
not do, nor allow anyone else to do, anything affecting the Property that is in violation of any
Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage
on the Property of small quantities of Hazardous Substances that are generally recognized to be
appropriate to normal residential uses and to maintenance of the Property.
"Hazardous Substances" shall mean those substances defined as toxic or hazardous
substances or hazardous waste under any Environmental Law, and the following substances:
gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,
volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials.
"Environmental Law" shall mean all federal and state of California laws that relate to
health, safety or environmental protection.
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1010\1712045536.2
Borrower shall promptly give City written notice of any investigation, claim, demand,
lawsuit or other action by any governmental or regulatory agency or private party involving the
Property and any Hazardous Substance or Environmental Law of which Borrower has actual
knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that
any removal or other remediation of any Hazardous Substance affecting the Property is
necessary, Borrower shall promptly take all necessary remedial actions in accordance with
Environmental Law.
12.Remedies Cumulative. All remedies provided in this Deed of Trust are distinct
and cumulative to any other right or remedy under this Deed of Trust or any other document, or
afforded by law or equity, and may be exercised concurrently, independently or successively.
13.Successors and Assigns Bound. The covenants and agreements herein contained
shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the
City and the Borrower subject to the provisions of this Deed of Trust.
14.Joint and Several Liability. All covenants and agreements of the Borrower shall
be joint and several.
15.Notice. Except for any notice required under applicable law to be given in
another manner, all notices required in this Deed of Trust shall be sent by certified mail, return
receipt requested or express delivery service with a delivery receipt, or personally delivered with
a delivery receipt obtained, and shall be deemed to be effective as of the date shown on the
delivery receipt as the date of delivery, the date delivery was refused, or the date the notice was
returned as undeliverable as follows:
To the Owner:
Address of the Property
To the City:
City of Carlsbad
1-lousing Services Division
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Homebuyer Program
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this section.
16.Controlling Law. This Deed of Trust shall be construed in accordance with and
be governed by the laws of the State of California.
17.Invalid Provisions. If any one or more of the provisions contained in this Deed of
Trust, Resale Restriction Agreement or the Note shall for any reason be held to be invalid, illegal
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or unenforceable in any respect, then such provision or provisions shall be deemed severable
from the remaining provisions, and this Deed of Trust, the Resale Restriction Agreement and the
Note shall be construed as if such invalid, illegal or unenforceable provision had never been
contained in this Deed of Trust, Resale Restriction Agreement or the Note.
18. Captions. The captions and headings in this Deed of Trust are for convenience
only and are not to be used to interpret or define the provisions hereof.
19. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of a
borrower and the administrator of a municipal inclusionary housing program, and that the City
does not undertake or assume any responsibility for or duty to Borrower to select, review,
inspect, supervise, pass judgment on, or inform Borrower of the quality, adequacy or suitability
of the Security or any other matter. The City owes no duty of care to protect Borrower against
negligent, faulty, inadequate or defective building or construction or any condition of the
Security and Borrower agrees that neither Borrower, or Borrower's heirs, successors or assigns
shall ever claim, have or assert any right or action against the City for any loss, damage or other
matter arising out of or resulting from any condition of the Security and will hold City harmless
from any liability, loss or damage for these things.
20. Indemnity. Borrower agrees to defend, indemnify, and hold the City harmless
from all losses, damages, liabilities, claims, actions, judgments, costs, expenses and reasonable
attorneys' fees that the City may incur as a direct or indirect consequence of:
a.Borrower's failure to perform any obligations as and when required by the
Note, Resale Restriction Agreement, and this Deed of Trust; or
b.the failure at any time of any of Borrower's representations or warranties
to be true and correct.
This provision shall survive the term of this Agreement.
21. Default; Remedies. Upon the Borrower's breach of any covenant or agreement of
the Borrower in the Note, Resale Restriction Agreement or this Deed of Trust, including, but not
limited to, the covenants to pay, when due, any sums secured by this Deed of Trust, the City,
prior to acceleration, will send, in the manner set forth in Section 15 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 15 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.
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If the breach is not curable or is not cured on or before the date specified in the notice, the
City, at the City's option, may: (a) declare all of the sums secured by this Deed of Trust to be
immediately due and payable without further demand and may invoke the power of sale and any
other remedies permitted by California law; (b) either in person or by agent, with or without
bringing any action or proceeding, or by a receiver appointed by a court, and without regard to
the adequacy of its security, enter upon the Security and take possession thereof (or any part
thereof) and of any of the Security, in its own name or in the name of the Trustee, and do any
acts which it deems necessary or desirable to preserve the value or marketability of the Security,
or part thereof or interest therein, increase the income therefrom or protect the security thereof.
The entering upon and taking possession of the Security shall not cure or waive any breach
hereunder or invalidate any act done in response to such breach and, notwithstanding the
continuance in possession of the Security, the City shall be entitled to exercise every right
provided for in this Deed of Trust, or by law upon occurrence of any uncured breach, including
the right to exercise the power of sale; (c) commence an action to foreclose this Deed of Trust as
a mortgage, appoint a receiver, or specifically enforce any of the covenants hereof; (d) deliver to
the Trustee a written declaration of default and demand for sale, pursuant to the provisions for
notice of sale found at California Civil Code Sections 2924, et seq., as amended from time to
time; or (e) exercise all other rights and remedies provided herein, in the instruments by which
the Borrower acquires title to any Security, or in any other document or agreement now or
hereafter evidencing, creating or securing all or any portion of the obligations secured hereby, or
provided by law.
The City shall be entitled to collect all reasonable costs and expenses incurred in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonable attorney's fees.
22.Acceleration. Upon the occurrence of a default under the Note, the Resale
Restriction Agreement, this Deed of Trust, the First Lender Note, or the First Lender Deed of
Trust, the City shall have the right to declare the full amount of the principal along with any
interest under the Note immediately due and payable. Any failure by the City to pursue its legal
and equitable remedies upon default shall not constitute a waiver of the City's right to declare a
default and exercise all of its rights under the Note, the Resale Restriction Agreement, and this
Deed of Trust. Nor shall acceptance by the City of any payment provided for in the Note
constitute a waiver of the City's right to require prompt payment of any remaining principal and
interest owed.
23.Borrower's Right to Reinstate. Notwithstanding the City's acceleration of the
sums secured by this Deed of Trust, the Borrower will have the right to have any proceedings
begun by the City to enforce this Deed of Trust discontinued at any time prior to five (5) days
before sale of the Security pursuant to the power of sale contained in this Deed of Trust or at any
time prior to entry of a judgment enforcing this Deed of Trust if: (a) the Borrower pays City all
sums, if any, which would be then due under this Deed of Trust and no acceleration under the
Note has occurred; (b) the Borrower cures all breaches of any other covenants or agreements of
the Borrower contained in the Note, Resale Restriction Agreement or this Deed of Trust; (c) the
Borrower pays all reasonable expenses incurred by City and the Trustee in enforcing the
covenants and agreements of the Borrower contained in the Note, Resale Restriction Agreement
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101011712045536.2
or this Deed of Trust, and in enforcing the City's and the Trustee's remedies, including, but not
limited to, reasonable attorney's fees; and (d) the Borrower takes such action as City may
reasonably require to assure that the lien of this Deed of Trust, City's interest in the Security and
the Borrower's obligation to pay the sums secured by this Deed of Trust shall continue
unimpaired. Upon such payment and cure by the Borrower, this Deed of Trust and the
obligations secured hereby will remain in full force and effect as if no acceleration had occurred.
24.Reconveyance. Upon payment of all sums secured by this Deed of Trust, the City
will request the Trustee to reconvey the Security and will surrender this Deed of Trust and the
Note to the Trustee. The Trustee will reconvey the Security without warranty and without
charge to the person or persons legally entitled thereto. Such person or persons will pay all costs
of recordation, if any.
25.Substitute Trustee. The City, at the City's option, may from time to time remove
the Trustee and appoint a successor trustee to any trustee appointed hereunder. The successor
trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by
applicable law.
26.Subordination to First Lender Mortgage. Notwithstanding any other provision
hereof, the provisions of this Deed of Trust shall be subordinate to the lien of the First Lender
Deed of Trust and shall not impair the rights of the First Lender, or the First Lender's successor
or assign, to exercise its remedies under the First Lender Deed of Trust in the event of default
under the First Lender Deed of Trust by the Borrower. Such remedies under the First Lender
Deed of Trust include the right of foreclosure or acceptance of a deed or assignment in lieu of
foreclosure. After such foreclosure or acceptance of a deed or assignment in lieu of foreclosure,
or upon assignment of the First Lender Deed of Trust to the Secretary of the United States
Department of Housing and Urban Development (the "Secretary"), this Deed of Trust shall be
forever terminated and shall have no further effect as to the Property or any transferee thereafter;
provided, however, if the holder of such First Lender Deed of Trust acquired title to the Property
pursuant to a deed or assignment in lieu of foreclosure, or if the First Lender's Deed of Trust is
assigned to the Secretary, this Deed of Trust shall automatically terminate upon such acquisition
of title or assignment to the Secretary provided that: (i) the City has been given written notice of
default under such First Lender Deed of Trust; and (ii) the City shall not have cured or
commenced to cure the default within such thirty (30) day period and given its firm commitment
to complete the cure in the form and substance acceptable to the First Lender. Borrower agrees
to record any necessary documents to effect such termination, if applicable.
Remainder of Page Left Intentionally Blank
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1010\17\2045536.2
cc)
(Borrower Signature
1S-7
(Print Name)
-
IN WITNESS WHEREOF, the Borrower has executed this Deed of Trust as of the date
first written above.
Note to Borrower: This Deed of Trust contains provisions prohibiting assumption
(24,44%1
(Borrower Signaty
:A)o 'td L , C061-7 L
(Print Name)
(Date)
(Date)
(Proper Notarial Acknowledgement of Execution by Borrower(s) Must Be Attached)
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1010\1712045536.2
WITNESS my hand and ficial se
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNIY OF SAN DIEGO
On IIIX OD
1- CO 1 f.7 ,11)1i Notary Public, personally appeared PO L - 10 1
who proved to me on 14 basis of satisfactory evidentd to be the
person(s)whose name(s)Ware subscribed to the within instrument and
nowledged to me that 0/she/they executed the same in
9gn
her/their authorized capacity(ies) and that by/her/their
iature(s)on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State
of California that the foregoing p agraph is true and correct.
WITNESS my h d and o eal.
ss:
before me, FOR NOTARY SEAL OR STAMP
J. COLTER
Notary Public - California
San Diego County
Commission 4 2290309 ,
My Cornm. Expires Jun 23. 2023
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFOWA
COUNTY OF 50„, u 1
On I 24102-WD before me,
1 /"1"-C.
Notary Public, personally appeared L. 4 'ego L
who proved to me on t e basis of satisfactory evidence to be the
person(s)whose name(s) are subscribed to the within instrument and
acknowledged to me that h sh they exec d the same in hi e their
authorized capacity(ies) an that by hi their signature(s on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragra h is true and correct.
} SS:
FOR NOTARY SEAL OR STAMP
J. COLTER
f'.511:14
Notary Public - California
San Diego County
Commission 0 2290309 .
Coma'- Expires Jun 23. 2023
Notaryak (DS1 Rev. 02/09115)
Escrow No.: SHK12008-006-AM4
EXHIBIT "A"
Legal Description
A CONDOMINIUM COMPRISED OF:
PARCEL 1:
AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN
THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL
TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS
SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON
JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO
(COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO.
14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP").
PARCEL 2:
RESIDENTIAL UNIT NO. 8, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN;
PARCEL 3:
AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY,
DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES
DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL
RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS
DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY,
THE "DECLARATION").
PARCEL 4:
A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS
AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY
DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D,
AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT
GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON SEPTEMBER 4, 2019 AS DOCUMENT NO. 2019-0380430, WHICH EASEMENT IS
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 5:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND
EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY
DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH
EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE.
Recording Requested by:
FNTG Builder Services— s•-)T,
S RI; 2-00 8 —M6 Kc,
Recording requested by and
when recorded mail to:
City of Carlsbad
Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
DOC# 2020-0817946
111111.3111E1Ell111111111111111111EM111111111111111111111
Dec 18, 2020 04:59 PM
OFFICIAL RECORDS Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $0.00 (SB2 Atkins: $0.00)
PAGES: 33
+-No fee for recording pursuant to
Government Code Section 27383
DECLARATION OF RESTRICTIVE COVENANTS REGARD4NG RESTRICTIONS ON
TRANSFER OF PROPERTY, OCCUPANCY RESTRICTIONS, REFINANCING
RESTRICTIONS, AND OPTION TO PURCHASE
(City of Carlsbad Homebuyer Prograin)
Owners: Ronald L. Coghill and Christine L. Cogbill
Address of Property: 6164 Colt Place #103
Carlsbad, CA 92009
This Declaration of Restrictive Covenants Regarding Restrictions on Transfer of
Property, Occupancy Restrictions, Refinancing Restrictions and Option to Purchase ("Resale
Restriction Agreement") is entered into as of this Jr - day of 40Valb•a--
20 ek, by and between the City of Carlsbad, a municinal corporation ("City"), and Ronald L.
Coghill and Christine L. Coghill, Husband and Wife as Joint Tenants ("Owner").
RECITALS
A.The City has developed a second mortgage prograrnAesigncd to assist qualified
low or moderate income households purchase their homes locatedwithin the City of Carlsbad
("Homebuyer Program").
B.In connection with the Homebuyer Program and in fulfillment of its inclusionary
obligation pursuant to an Affordable Housing Agreement ("Affordable Housing Agreement")
between Shea Homes Limited Partnership, a California limited partnership ("Developer") and the
City dated November 11. 2017, the Developer made a loan ("Homebuyer Loan") in the amount
of Four Hundred Fourteen Thousand Dollars ($414,000) to allow for the purchase of a single-
family dwelling by a low income household located in Carlsbad, California on that certain real
property and more particularly described in Exhibit A ("Property"), and then assigned the
Homebuyer Loan to the City.
•'
C. As used herein, the tern "Property" includes both the real property and all
improvements now or hereafter erected thereon (including, but not limited to the residential
dwelling unit), and all easements, rights, appurtenances, and all fixtures now or hereafter
attached thereto.
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1010/17/2032990.2
D.The "Original Affordable Purchase Price" of the Property is Three Hundred Eleven
Thousand Dollars ($311,000). The Original Affordable Purchase Price is the effective price of
the Residence paid by the Owner. The actual price of the Residence is equal to the Original
Affordable Purchase Price plus the amount of the Promissory Note ("Full Purchase Price").
Owner is a low income household.
E.The Loan is evidenced by a promissory note in the amount of the Loan ("City Note").
This Agreement and the City Note shall be secured by a deed of trust ("City Deed of Trust")
subordinate to the lien of First Lender Deed of Trust.
F.The Homebuyer Loan is evidenced by a promissory note in the amount of the
Loan ("City Note"). This Agreement and the City Note shall be secured by a deed of trust ("City
Deed of Trust") subordinate to the lien of First Lender Deed of Trust.
G.The purpose of this Agreement is to place resale controls on the Property, to
provide the City an option to purchase the Property at a restricted price, and to ensure that the
Owner complies with the Homebuyer Program requirements.
H.This Agreement and the City Note require repayment of the Homebuyer Loan
plus contingent interest and, in certain instances, payment of excess proceeds of sale. This
Agreement will remain in full effect as an encumbrance on the Property after any prepayment of
the City Note by the Owner.
NOW, THEREFORE, in consideration of the benefits received by the Owner and the
City, the Owner and the City agree, as follows:
1. DEFINITIONS AND EXHIBITS
A. The following terms are specifically defined for this Agreement and their
definitions can be found in the Sections indicated below:
(1)"Affordable Sales Price" — Section 14A(1).
(2)"Agreement" - first sentence of the Agreement on page 1.
(3)"City" — first sentence of the Agreement on page 1.
(4)"City Deed of Trust" - Recital F.
(5)"City Designated Purchaser" — Section 12B.
(6)"City Note" - Recital F.
(7)"City Option" - Section 12A.
(8)"City Response Notice" - Section 10.
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(9)"Default" — Section 18
(10)"Eligible Purchaser" Section 15B.
(11)"Excess Sales Proceeds" - Section 16.
(12)"Extended Period" — 10C.
(13)"Fair Market Value" - Section 14B.
(14)"First Lender" - Recital E.
(15)"First Lender Deed of Trust" or "First Mortgage"- Recital E.
(16)"First Lender Loan" - Recital E.
(17)"Full Purchase Price" — Recital D.
(18)"Full Sales Price" - Section 14A.
(19)"Homebuyer Loan" - Recital B.
(20)"HUD" — Section 30.
(21)"Initial Period" — 10B.
(22)"Market Purchaser" — Section 10C.
(23)"Maximum Restricted Resale Price" — Section 14.
(24)"Median Income" — Section 14A.
(25)"Official Records" — Recital E.
(26)"Original Affordable Purchase Price" — Recital D.
(27)"Owner" - first sentence of the Agreement on page 1.
(28)"Owner's Notice of Intent to Transfer" - Section 8.
(29)"Property" - Recital B.
(30)"Proposed Purchaser" - Section 15A.
(31)"Transfer" - Section 7.
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(32) "Unauthorized Rental Proceeds" — Section 4.
B. The following Exhibits are attached to this Agreement:
(1) Exhibit A: Legal Description of Property
(2) Exhibit B: Form of Owner Occupancy Certification
(3) Exhibit C: Form of Owner's Notice of Intent to Transfer
(4) Exhibit D: Form of City Response Notice
(5) Exhibit E: Form of Owner Acknowledgement of City Response
Notice
(6) Exhibit F: Form of Owner Request for City Subordination to
Refinanced First Lender Loan
2. OWNER CERTIFICATIONS
The Owner certifies that: (i) the financial and other information previously provided in
order to qualify to purchase the Property is true and correct as of the date first written above; (ii)
the Owner is an Eligible Purchaser; (iii) the Owner has disclosed all individuals that shall reside
at the Property; and (iv) the Owner shall occupy the Property as the Owner's principal place of
residence.
3.OCCUPANCY OF PROPERTY
The Owner shall occupy the Property as the Owner's principal place of residence within
sixty (60) days after the close of escrow on the Homebuyer Loan. Failure by the Owner to
occupy the Property as the Owner's principal place of residence shall constitute a Default under
this Agreement for which the City may exercise its option to purchase pursuant to Section 21
below. The Owner shall be considered as occupying the Property if the Owner is residing at the
Property for at least ten (10) months out of each calendar year. The Owner shall provide an
annual written certification in the form shown in the attached Exhibit B to the City that the
Owner is occupying the Property as his or her principal place of residence, and listing all
occupants residing at the Property. No later than ten (10) days after receipt of the City's written
request, the Owner shall provide any additional information and documents which the City
requests including but not limited to tax returns and bank statements, which may evidence
whether the Owner is occupying the Property. Failure to provide any additional information or
documentation requested shall constitute a Default under this Agreement.
4.NO LEASING OF PROPERTY
The Owner shall not lease all, or any portion of, the Property to another party. Any lease,
sublease, or any other renting of the Property to a third-party is prohibited and shall be a Default
under this Agreement and the City Deed of Trust. For the avoidance of doubt, the City and the
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1010/17/2032990.2
Owner agree and acknowledge that: (i) the Property (or any portion of the Property) is
prohibited from being used a "short-term vacation rental" (as such term is defined in Chapter
5.60 of the City of Carlsbad Municipal Code, as may be amended from time to time); (ii) no
portion of the Property may be used for tourist or transient use, or any other short-term rental of
the Property; and (iii) listing the Property on any "hosting platform" (as defined in California
Business & Professions Code 22590, as may be amended from time to time), including, but not
limited to any Internet-based "hosting platform", such as "airbnb.com", or any similar service, is
prohibited. All proceeds derived from any leasing, subleasing, or any other activity prohibited
by this Section are defined as "Unauthorized Rental Proceeds". In addition to all other available
rights and remedies set forth in this Agreement, in the event of violation of this Section, the
Owner shall pay to the City all Unauthorized Rental Proceeds in accordance with Section 19.
5. HOMEBUYER EDUCATION CLASS
The Owner shall attend all sessions of a first-time borncbuyer education class offered by
The Framework Homeowner Education Course.
6. MAINTENANCE AND INSURANCE PROCEEDS
A.The Owner shall maintain the Property, including landscaping, in good repair and
in a neat, clean and orderly condition and will not commit waste or permit deterioration of the
Property. Failure by the Owner to maintain the Property shall constitute a Default under this
Agreement for which the City may exercise the City Option to purchase the Property pursuant to
Section 21 below.
B.The Owner shall maintain a standard fire and extended coverage home insurance
policy equal to the replacement value of the Property (adjusted every five (5) years by appraisal,
if requested by City), naming the City as an additional insured. Additional insurance
requirements are set forth in Section 6 of the City Deed of Trust.
7. TRANSFER AND SALE RESTRICTIONS
Any Transfer of the Property will be subject to the provisions of this Agreement
including, without limitation, exercise of the City Option pursuant to Section 12 below.
"Transfer" shall mean any sale, assignment or transfer, voluntary or involuntary, of any interest
in the Property, including, but not limited to, a fee simple interest, a joint tenancy interest,
tenancy in common interest, a life estate, a leasehold interest, an interest evidenced by a land
contract by which possession of the Property is transferred and Owner retains title. Any Transfer
without satisfaction of the provisions of this Agreement is prohibited. A Transfer shall not
include a transfer: (i) to an existing spouse who is also an obligor under the City Note; (ii) by the
Owner to a spouse where the spouse becomes the co-owner of the Property; (iii) between
spouses as part of a marriage dissolution proceeding; (iv) to an existing spouse of Owner by
devise or inheritance following the death of Owner; (v) by Owner into an inter vivos revocable
trust in which Owner is the Trustor; or (vi) refinance of the First Mortgage meeting the
requirements of Section 28 of this Agreement; provided, however, that Owner shall provide
written notice of all such transfers to City pursuant to Section 8 below; and Owner shall continue
to occupy the Property as his or her principal place of residence (except where the transfer occurs
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pursuant to subsection (iii) or (iv) above, in which event the transferee shall owner-occupy the
Property and affirmatively assume Owner's obligations under this Agreement, the City Note and
the City Deed of Trust).
8. NOTICE OF IN I ENDED TRANSFER
A. In the event the Owner intends to transfer (including without limitation all
"Transfers" as defined in Section 7) or vacate the Property, the Owner shall promptly give the
City written notice of such intent (the "Owner's Notice of Intent to Transfer") in the form shown
in the attached Exhibit C. The Owner shall give the City the Owner's Notice of Intent to
Transfer prior to notifying real estate brokers or lenders of Owner's intent to Transfer the
Property and prior to listing of the Property on the Multiple Listing Service. The Owner's Notice
of Intent to Transfer shall be sent to the City in the manner and at the address provided in Section
33 of this Agreement. The Owner's Notice of Intent to Transfer shall include the information
necessary for the City to determine the Maximum Restricted Resale Price of the Property,
including the following information:
(1)the address of the Property;
(2)the date of purchase of the Property by the Owner;
(3)the Original Affordable Purchase Price of the Property;
(4)the Full Purchase Price of the Property (which is the Original Affordable
Purchase Price plus the original amount of the Homebuyer Loan).
(5)a copy of the HUD-1 Settlement Statement or equivalent document from
the close of escrow on the Owner's purchase of the Property;
(6)the date on which Owner intends to vacate Property;
(7)the date the Property will be placed on the market; and
(8)the name and phone number of the person to contact to schedule
inspection of the Property by the City.
9. OWNER PREPARATION OF PROPERTY FOR SALE
A.The Owner may not wish to contract with a real estate broker to sell the
Property until the Owner has received the City Response Notice pursuant to Section 10
below, as the services of a broker will not be required if the City exercises the City Option
to purchase the Property pursuant to Section 12 below.
B.Following delivery to the City of the Owner's Notice of Intent to Transfer, the
Owner shall prepare the Property for sale, as follows:
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(1)within thirty (30) days of delivery of the Owner's Notice of Intent to
Transfer, the Owner shall obtain and deliver to the City a current written report of inspection of
the Property by a licensed structural pest control operator;
(2)within the sooner of: (a) sixty (60) days from the date of delivery of the
Owner's Notice of Intent to Transfer; or (b) prior to close of escrow on the Transfer, the Owner
shall repair all damage noted in the pest report including damage caused by infestation or
infection by wood-destroying pests;
(3)within thirty (30) days of the date of the Owner's Notice of Intent to
Transfer, the Owner shall allow the City to inspect the Property to determine its physical
condition;
(4)if the Property is vacant, the Owner shall maintain utility connections until
the close of escrow on the Transfer; and
(5)in the event of purchase of the Property by the City or City Designated
Purchaser, the Owner shall permit a final walk-through of the Property by the City or City
Designated Purchaser, in the final three (3) days prior to close of escrow on the Transfer.
10. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER
City shall respond in writing (the "City Response Notice") to the Owner's Notice of Intent
to Transfer. The form of City Response Notice is attached as Exhibit D. The City Response
Notice shall inform the Owner of the City's election to proceed under one (1) of the following
two (2) alternatives:
A.City Exercise of City Purchase Option. The City Response Notice may notify the
Owner that the City or a City Designated Purchaser elects to exercise the City Option to purchase
the Property. The City Response Notice shall be sent within thirty (30) days of City receipt of
Owner's Notice of Intent to Transfer and shall include the City's calculation of the: (i) Maximum
Restricted Resale Price pursuant to Section 14 below to be paid by the City or a City Designated
Purchaser; and (ii) the transaction fee to be paid by the Owner pursuant to Section 12 below;
B.Initial Period: Owner Sale at a Restricted Sales Price to Eligible Purchaser.
Alternatively, the City Response Notice may notify the Owner that the City or a City Designated
Purchaser will not exercise the City Option to purchase the Property. In this case, if the Owner
has sent the Notice of Intent to Transfer within fifteen (15) years of the date of recordation of this
Agreement (the "Initial Period"), the City Response Notice shall inform the Owner that the
Owner may proceed to sell the Property to an Eligible Purchaser at a price not to exceed the
Maximum Restricted Resale Price, as set forth in Section 14 and pursuant to the procedure set
forth in Section 14 below. In this event, the City Response Notice shall include the following
information: (1) the maximum qualifying income for an Eligible Purchaser (which shall be the
same income category as the Owner at the time of the Owner's purchase); (2) the certifications
required of an Eligible Purchaser; (3) the Maximum Restricted Resale Price the Owner may
receive for the Property, calculated by the City pursuant to Section 14 below; (4) whether
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1010/17/2032990.2
Homebuyer Program assistance from the City may be available to an Eligible Purchaser; and (5)
Owner's repayment obligation as required by Section 13; and
C. Extended Period Owner Sale to Market Purchaser. If the City Response Notice
notifies the Owner that the City or a City Designated Purchaser will not exercise the City Option
to purchase the Property, and the Owner has sent the Notice of Intent to Transfer between the
fifteenth (15th) year of the Term and the end of the Term, (the "Extended Period"), the City
Response Notice shall inform Owner that Owner may proceed to sell the Property to a third party
at any income level (the "Market Purchaser") for an unrestricted price. The City Response
Notice shall also inform Owner of Owner's repayment obligation as required by Section 13.
11.OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
No later than seven (7) days following the date of the City Response Notice, the Owner
shall acknowledge in writing to the City, in the form shown in the attached Exhibit E, that he/she
has received the City Response Notice and still intends to Transfer the Property.
12.CITY PURCHASE OPTION
A.The Owner agrees that if the Owner decides to Transfer the Property, the City
shall have the option to purchase the Property for the Maximum Restricted Resale Price
calculated pursuant to Section 14 of this Agreement (the "City Option"). The Owner shall pay
the City a transaction fee up to six percent (6%) of the Maximum Restricted Resale Price if
the City or a City Designated Purchaser exercises the City Option and purchases the
Property. The City Option may be exercised by the City or by a City Designated Purchaser in
the City Response Notice. If the City Response Notice notifies the Owner that the City or a City
Designated Purchaser will exercise the City Option to purchase the Property, the City or the City
Designated Purchaser shall purchase the Property within ninety (90) days of the date of the City
Response Notice and title shall be delivered by the Owner to the City by grant deed free and
clear of any mortgage or other liens, unless approved in writing by the City.
B.The City may assign the City Option to another public agency, a nonprofit
corporation, or an Eligible Purchaser selected by the City (any of which shall be referred to
herein as a "City Designated Purchaser"). If the City assigns the City Option to a City
Designated Purchaser, the City Response Notice shall be executed by the City Designated
Purchaser and shall notify the Owner that a City Designated Purchaser is exercising the City
Option in lieu of the City.
C.In the event of exercise of the City Option and purchase of the Property by the
City or a City Designated Purchaser, the Owner shall permit a final walk-through of the Property
by the City or the City Designated Purchaser in the final three (3) days prior to close of escrow
on the Transfer.
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13.REPAYMENT OF CITY NOTE
Upon any Transfer of the Property, the outstanding principal and interest due under the
City Note shall be repaid pursuant to the City Note unless: (i) such principal and interest is
assumed by an Eligible Purchaser in accordance with Section 9 of the City Note; or (ii) the City
exercises the City Option to purchase the Property, in which event the outstanding amount of
principal and Contingent Interest due under the City Note shall be paid to the City in the form of
a credit against the purchase price to be paid by the City to the Owner. Repayment of the City
Note shall not affect Owner's obligation to comply with this Agreement, which shall remain in
full force and effect following any repayment of the City Note.
14.DETERMINATION OF MAXIMUM RESTRICTED RESALE PRICE
The maximum sales price that the Owner shall receive from the resale of the Property to
the City or City Designated Purchaser, or from other sale or Transfer by the Owner when the
Owner sends the Notice of Intent to Transfer during the Initial Period (the "Maximum Restricted
Resale Price") shall be the Full Sales Price or the Fair Market Value, whichever is less.
A. Full Sales Price.
(1)The Full Sales Price of the Property means: (a) the Affordable Sales
Price; plus (b) the principal and contingent interest then due on the City Note. The Affordable
Sales Price means the Original Affordable Purchase Price, as set forth in Recital D to this
Agreement, increased by the percentage of increase in the Median Income from the date of the
original purchase of the Property by the Owner to the date of receipt by the City of the Owner's
Notice of Intent to Transfer. "Median Income" shall refer to the median yearly income, adjusted
for a household size of four, in San Diego County, as published by the California Department of
Housing and Community Development ("HCD"), or, in the event such income determination is
no longer published by HCD, or has not been updated for a period of at least eighteen (18)
months, the City may use or develop such other reasonable method as it may choose in order to
determine the median yearly income in San Diego County. As of the date of Owner's purchase
of the Property, the Median Income for a household of four persons is Ninety Two Thousand
Seven Hundred Dollars ($92,700).
(2)The Affordable Sales Price shall include a downward adjustment, where
applicable, in an amount necessary to repair any violations of applicable building, plumbing,
electric, fire or housing codes or any other provisions of the City of Carlsbad Building Code, as
well as any other repairs needed to put the Property into a "sellable condition". Items necessary
to put a Property into sellable condition shall be determined by the City, and may include
cleaning, painting and making needed structural, mechanical, electrical, plumbing and fixed
appliance repairs and other deferred maintenance repairs.
B. Fair Market Value. In certain circumstances it may be necessary to determine the
fair market value of the Property without taking account of the resale restrictions imposed by this
Agreement (the "Fair Market Value"). These circumstances include but are not limited to: (1)
where the parties wish to determine if the Full Sales Price exceeds the Fair Market Value in
order to determine the Maximum Restricted Resale Price pursuant to this section; (2) where the
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parties wish to determine if the sales price of the Property to a Market Purchaser is comparable
to the Fair Market Value; and (3) to calculate the amount due under the City Note at the end of
the term of the City Note or upon prepayment. If it is necessary to determine the Fair Market
Value of the Property, it shall be determined by a certified MAI or other qualified real estate
appraiser approved in advance by the City. If possible, the appraisal shall be based upon the
sales prices of comparable properties sold in the market area during the preceding three (3)
month period. The cost of the appraisal shall be paid by the Owner, unless the appraisal is
obtained from a new purchaser. Nothing in this section shall preclude the Owner and the City
from establishing the Fair Market Value of the Property by mutual agreement in lieu of an
appraisal pursuant to this section.
15. SALE BY OWNER DURING INITIAL PERIOD IF CITY DOES NOT EXERCISE
OPTION TO PURCHASE
In the event the City Response Notice notifies the Owner to proceed to sell the Property
to an Eligible Purchaser at a price not exceeding the Maximum Restricted Resale Price, the
Owner may proceed to sell the Property in compliance with the following requirements:
A.Marketing. The Owner shall use bona fide good faith efforts to sell the Property
to an Eligible Purchaser in compliance with this section, including listing the Property on the
Multiple Listing Service, keeping the Property in an orderly condition, making the Property
available to show to agents and prospective buyers, and providing buyers with Eligible Purchaser
requirements, including income qualifications and the City's form of disclosure statement
summarizing the terms of the buyer's occupancy and resale restriction agreement with option to
purchase. A proposed purchaser ("Proposed Purchaser") who the Owner believes will qualify as
an Eligible Purchaser shall be referred to the City for an eligibility determination. If the
Proposed Purchaser qualifies as an Eligible Purchaser the City will also determine if such
Eligible Purchaser is eligible for City housing-related fmancial assistance that may be available
at the time of resale.
B.Eligible Purchaser. A Proposed Purchaser shall qualify as an "Eligible Purchaser"
if he or she meets the following requirements, as determined by the City:
(1)Income Eligibility. The combined maximum income for all household
members of the Proposed Purchaser shall not exceed the income level designated by the City in
the City Response Notice.
(2)Intent to Owner Occupy. The Proposed Purchaser shall certify that he or
she will occupy the Property as to his or her principal place of residence throughout his or her
ownership. Co-signers are not required to occupy the Property.
(3)Agreement to Sign Resale Restriction Agreement and to Cooperate with
the City. The Proposed Purchaser shall agree to sign a resale restriction agreement restricting
future resale of the Property and shall agree to cooperate fully with the City in promptly
providing all information requested by the City to assist the City in monitoring the Proposed
Purchaser's compliance with the resale restriction agreement.
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C.Maximum Restricted Resale Price. The purchase price for the sale of the Property
by the Owner to the Eligible Purchaser shall not exceed the Maximum Restricted Resale Price
calculated by the City pursuant to Section 14 above, as set forth in the City Response Notice.
The closing costs paid by the Eligible Purchaser shall not exceed reasonable customary buyer's
closing costs in the County of San Diego. Pursuant to Section 13 of this Agreement and Section
9 of the City Note, the Eligible Purchaser may assume the Homebuyer Loan and the effective
purchase price that the Eligible Purchaser will pay for the Property is anticipate to be the
Affordable Sales Price.
D.Disclosure and Submittals. The Owner and the Proposed Purchaser shall provide
the following information and documents to the City:
(1)The name, address and telephone number in writing of the Proposed
Purchaser.
(2)A signed financial statement of the Proposed Purchaser in a form
acceptable to the City and any other supporting documentation requested by the City. The
financial information shall be used by the City to determine the income eligibility of the
Proposed Purchaser.
(3)The proposed sales contract and all other related documents which shall
set forth all the terms of the sale of the Property. Said documents shall include at least the
following terms: (a) the sales price; and (b) the price to be paid by the Proposed Purchaser for
the Owner's personal Property, if any, for the services of the Owner, if any, and any credits,
allowances or other consideration, if any.
(4)A written certification, from the Owner and the Proposed Purchaser in a
form acceptable to the City that the sale shall be closed in accordance with the terms of the sales
contract and other documents submitted to and approved by the City. The certification shall also
provide that the Proposed Purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the Proposed Purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract and documents submitted to the City. The written certification shall
also include a provision that in the event a Transfer is made in violation of the terms of this
Agreement or false or misleading statements are made in any documents or certification
submitted to the City, the City shall have the right to foreclose on the Property or file an action at
law or in equity as may be appropriate. In any event, any costs, liabilities or obligations incurred
by the Owner and the Proposed Purchaser for the return of any moneys paid or received in
violation of this Agreement or for any of the Owner's and/or the Proposed Purchaser's costs and
legal expenses, shall be borne by the Owner and/or the Proposed Purchaser and they shall hold
the City harmless and reimburse the City's expenses, legal fees and costs for any action they
reasonably take in good faith in enforcing the terms of this Agreement.
(5)An executed buyer's resale restriction agreement and deed of trust to the
City from the Proposed Purchaser in forms provided by the City. If the Proposed Purchaser is
receiving assistance from the Homebuyer Program, a promissory note to the City shall also be
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required. The recordation of the new deed of trust and buyer's resale restriction agreement shall
be a condition of the City's approval of the proposed sale.
(6)The name of the title company escrow holder for the sale of the Property,
the escrow number, and name, address, and phone number of the escrow officer.
(7)Upon the close of the proposed sale, certified copies of the recorded City
deed of trust and buyer's resale restriction agreement, a copy of the final sales contract,
settlement statement, escrow instructions, and any other documents which the City may
reasonably request.
16.PAYMENT TO CITY OF EXCESS SALES PROCEEDS
If the Owner makes a Transfer in violation of this Agreement at any time during the
Initial Period or Extended Period, the Owner shall pay the Excess Sales Proceeds to the City. If
the Owner Transfers the Property in violation of this Agreement, the Appreciation Amount (as
such term is defined in the City Note) shall be calculated using the Maximum Restricted Resale
Price of the Property, rather than the actual sales price. For purposes of this Agreement, "Excess
Sales Proceeds" shall mean ninety-four percent (94%) of the amount by which the gross sales
proceeds received by the Owner from the new purchaser exceed the Maximum Restricted Resale
Price for the Property. This amount shall be a debt of the Owner to the City, further evidenced
by the City Note, and secured by the City Deed of Trust. The Owner acknowledges that the City
shall have no obligation to cause the release and termination of this Agreement, or the
reconveyance of the City Deed of Trust, until the Excess Sales Proceeds are paid to the City.
The City shall utilize the Excess Sales Proceeds for City affordable housing programs. The
Owner and the City acknowledge that the formula for calculation of the amount of Excess Sales
Proceeds due from the Owner to the City is intended to cause the Owner to receive the same net
sales proceeds (following payment by Owner of a standard broker's commission) from sale of the
Property at an unrestricted price to a market purchaser (in violation of this Agreement) as the
Owner would receive from sale of the Property to the City, City Designated Purchaser or to an
Eligible Purchaser at the Maximum Restricted Resale Price.
17.SALE OF PROPERTY BY OWNER DURING EXTENDED PERIOD
In the event the City Response Notice notifies the Owner to proceed to sell the Property
to a Market Purchaser at a price greater than or equal to the Fair Market Value of the Property,
the Owner may proceed to sell the Property in compliance with the following requirements:
Upon any sale of the Property, the Owner shall submit to the City at least fifteen (15)
days prior to the close of escrow, a copy of the appraisal, and a copy of the sales contract and a
written declaration, under penalty of perjury, from the Owner and the proposed purchaser in a
form acceptable to the City stating the gross sales price of the Property. The certification shall
also provide that the proposed purchaser or any other party has not paid and will not pay to the
Owner, and the Owner has not received and will not receive from the proposed purchaser or any
other party, money or other consideration, including personal property, in addition to what is set
forth in the sales contract. At close of escrow, Owner shall: (i) submit to the City a copy of the
HUD-1 Settlement Statement showing the purchase price paid for the Property; and (ii) repay all
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outstanding amounts owed by to Owner to the City pursuant to this Agreement, the City Deed of
Trust, and the City Note. Upon such full repayment to the City, the City shall cause this
Agreement to be terminated and released from the Property and shall cause the City Deed of
Trust to be reconveyed from the Property.
18. DEFAULTS
A. A Default by the Owner is any failure to comply with the requirements of this
Agreement, the City Note or the City Deed of Trust, whether by commission or omission which
includes, but is not limited to the following:
(1)The City determines that the Owner has made a misrepresentation to
obtain the benefits of purchase of the Property or in connection with its obligations under this
Agreement.
(2)The Owner fails to owner occupy the Property, as required pursuant to
Section 3 above, and such failure continues following written notice by the City and sixty (60)
days opportunity to cure following the date of such notice.
(3)The Owner rents all or a portion of the Property in violation of Section 4
above, and such failure continues following written notice by the City and sixty (60) days
opportunity to cure.
(4)The Owner fails to provide information or documents to the City that the
City deems necessary to determine Owner's compliance with the requirements of this
Agreement.
(5)The Owner makes a Transfer in violation of this Agreement.
(6)A notice of default is issued under First Lender Loan.
(7)A lien is recorded in the Official Records against the Property other than
the First Mortgage.
(8)Owner records a deed of trust against the Property in the Official Records,
or otherwise places a mortgage on the Property in violation of Section 28 below.
(9)Owner declares bankruptcy or makes an assignment of assets for the
benefit of creditors.
B. Upon a declaration of Default by the City under this Agreement, the City may
exercise any remedies at law or in equity, including without limitation, any or all of the
following:
(1) Declare all Excess Sales Proceeds immediately due and payable without
further demand, accelerate payments due under the City Note and invoke the power of sale under
the City Deed of Trust;
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(2)Apply to a court of competent jurisdiction for such relief at law or in
equity as may be appropriate, including, but not limited to specific performance.
(3)Declare a Default under the City Note and the City Deed of Trust and
pursue all City remedies under the City Note and the City Deed of Trust; and
(4)Exercise the City Option upon Default as described in Section 21, below.
Owner acknowledges that any breach in Owner's performance of Owner's obligations under this
Agreement shall cause irreparable harm to the City. Therefore, Owner agrees that the City is
entitled to equitable relief in the form of specific performance upon its exercise of the City
Option set forth in Section 21, below, and that an award of damages may not be adequate to
compensate the City for Owner's failure to perform according to the terms of this Agreement.
The City, in its sole and absolute discretion, may elect the appropriate remedy for Owner's
default under this Agreement.
19.NOTICE AND CURE
Upon a violation of any of the provisions of this Agreement, the City Note or the City
Deed of Trust, the City shall give written notice to the Owner specifying the nature of the
violation and demanding a cure. If the violation is not corrected to the satisfaction of the City
within a reasonable period of time, not longer than thirty (30) days from the date the notice is
mailed, or within such further time as the City determines is necessary to correct the violation, or
if the Owner is in default under the First Mortgage, the City may declare a Default under this
Agreement. If the violation is failure to occupy the Property, as set forth in Section 3, or any
rental of the Property or any other act prohibited by Section 4, then Owner shall be given sixty
(60) days from the date the notice is mailed to correct that violation, and, to the extent applicable,
remit all Unauthorized Rental Proceeds to the City before the City may declare a Default.
The City shall notify First Lender at the address provided by the First Lender to the City
in the manner set forth in Section 33 of this Agreement, if the City has declared a Default under
this Agreement or under the City Note or City Deed of Trust.
20.NOTICE TO CITY OF DEFAULT
A request for notice of default and any notice of sale under any deed of trust or mortgage
with power of sale encumbering the Property shall be recorded by the City in the Official
Records for the benefit of the City. The City may declare a default under this Agreement upon
receipt of any notice given to the City pursuant to Civil Code Section 2924b, and may exercise
its rights as provided in Sections 18 and 21.
In the event of default and foreclosure under the First Lender Loan or any other mortgage
loan on the Property, the City shall have the same right as the Owner to cure defaults and redeem
the Property prior to the foreclosure sale. Nothing herein shall be construed as creating any
obligation of the City to cure any such default, nor shall this right to cure and redeem operate to
extend any time limitations in the default provisions of the underlying deed of trust or mortgage.
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If the City failed to file the request for notice of default, the City's right to purchase the
Property shall commence from the date a notice of default is given by the City to the Owner.
21. PURCHASE OPTION UPON DEFAULT
A.Purchase Option. Notwithstanding, and in addition to, the remedies provided the
City in Section 18, and the City Purchase Option provided in Section 12, the Owner hereby
grants to the City or the City Designated Purchaser the option to purchase the Property effective
upon the declaration of a Default by the City pursuant to Section 18 and Section 19 above, and
subject to notice and cure rights set forth in Section 19.
B.Exercise of Option. The option to purchase may be exercised upon a Default
under this Agreement or upon default under any promissory note, deed of trust or any other lien,
including a judgment lien, recorded against the Property. The City shall have thirty (30) days
after a Default is declared to notify the Owner and the First Lender of its decision to exercise its
option to purchase. Not later than ninety (90) days after the notice is given by the City to the
Owner of the City's intent to exercise its option, the City shall purchase the Property for the
Maximum Restricted Resale Price set forth in Section 14. The City may assign its rights to
purchase the Property under this section to a City Designated Purchaser.
22. NONLIABILITY OF THE CITY
A.No Obligation to Exercise Option. The City shall have no obligation to exercise
any option granted it under this Agreement. In no event shall the City become in any way liable
or obligated to the Owner or any successor-in-interest to the Owner by reason of its option to
purchase under Sections 12 and 21 nor shall the City be in any way obligated or liable to the
Owner or any successor-in-interest to the Owner for any failure to exercise its option to
purchase.
B.Nonliability for Negligence. Loss, or Damage. Owner acknowledges,
understands and agrees that the relationship between Owner and the City is solely that of an
owner and an administrator of a City inclusionary housing program, and that the City does not
undertake or assume any responsibility for or duty to Owner to select, review, inspect, supervise,
pass judgment on, or inform Owner of the quality, adequacy or suitability of the Property or any
other matter. The City owes no duty of care to protect Owner against negligent, faulty,
inadequate or defective building or construction or any condition of the Property and Owner
agrees that neither Owner, or Owner's heirs, successors or assigns shall ever claim, have or assert
any right or action against the City for any loss, damage or other matter arising out of or
resulting from any condition of the Property and will hold the City harmless from any liability,
loss or damage as set forth in Section 22(c). Any review by the City of any documents submitted
by the Owner to the City pursuant to this Agreement, including, but not limited to any purchase
and sale agreement for the Property, is solely to confirm compliance with the requirements of
this Agreement and shall not be deemed to be a representation of any kind of the validity or legal
enforceability of such document(s).
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C. Indemnity. Owner agrees to defend (with counsel reasonably selected by the
City), indemnify, and hold the City harmless from all losses, damages, liabilities, claims, actions,
judgments, and costs, including expenses, and reasonable attorneys' fees that the City may incur,
as a direct or indirect consequence of: (1) Owner's default, performance, or failure to perform
any obligations as and when required by this Agreement, the City Note, or the City Deed of
Trust; or (2) the failure at any time of any of Owner's representations to the City to be true and
correct. This provision shall survive the termination or expiration of this Agreement, and the
reconveyance of the City Deed of Trust.
23.RESTRICTIONS ON FORECLOSURE PROCEEDS
If a creditor acquires title to the Property through a deed in lieu of foreclosure, a trustee's
deed upon sale, or otherwise, the Owner shall not be entitled to the proceeds of sale to the extent
that such proceeds otherwise payable to the Owner when added to the proceeds paid or credited
to the creditor exceed the Maximum Restricted Resale Price. The Owner shall instruct the holder
of such excess proceeds (in addition to other amounts due to the City pursuant to the City Note
and this Agreement) to pay such proceeds to the City in consideration of the benefits received by
the Owner through purchase of the Property under this Agreement.
24.RESTRICTION ON INSURANCE PROCEEDS
If the Property is damaged or destroyed and the Owner elects not to rebuild or repair the
Property, the Owner shall pay the City the portion of any insurance proceeds received by the
Owner for such destruction or damage which is in excess of the Maximum Restricted Resale
Price calculated pursuant to Section 14 above.
25.TERM OF AGREEMENT
All the provisions of this Agreement, including the benefits and burdens, run with the
land and the Property and this Agreement shall bind, and the benefit hereof shall inure to, the
Owner, his or her heirs, legal representatives, executors, successors in interest and assigns, and to
the City and its successors until the earlier of: (i) thirty (30) years from the date of recordation of
this Agreement in the Official Records; or (ii) the date of Transfer of the Property to the City or
another purchaser in compliance with this Agreement (including execution by the purchaser of a
new resale restriction agreement for the benefit of the City). The "Term" consists of the Initial
Period and the Extended Period.
26.SUPERIORITY OF AGREEMENT
The Owner covenants that he or she has not, and will not, execute any other agreement
with provisions contradictory to or in opposition to the provisions of this Agreement hereof, and
that, in any event, this Agreement is controlling as to the rights and obligations between and
among the Owner, the City and their respective successors.
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27.SUBORDINATION
Notwithstanding any other provision hereof, the provisions of this Agreement shall be
subordinate to the lien of the First Lender Loan and shall not impair the rights of the First
Lender, or the First Lender's successor or assign, to exercise its remedies under the First Lender
Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such
remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a
deed or assigmnent in lieu of foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Agreement shall be forever terminated and shall have no
further effect as to the 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, this Agreement shall automatically terminate upon such acquisition of title,
provided that: (i) the City has been given written notice of default under such First Lender Deed
of Trust; and (ii) the City shall not have cured or commenced to cure the default within such
thirty (30) day period and given its firm commitment to complete the cure in the form and
substance acceptable to the First Lender. Owner agrees to record any necessary documents to
effect such termination, if applicable.
28.REFINANCE OF FIRST LENDER LOAN
The outstanding principal on the City Note shall not be due upon prepayment and
refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be
subordinated to the refinanced First Lender Loan, provided that: (i) such refmancing is approved
by the City; (ii) the amount refmanced does not exceed the outstanding principal balance of the
First Mortgage at the time of refinance plus reasonable costs of refinance; and (iii) the refinance
does not result in higher monthly payments on the First Lender Loan than were due prior to the
refinance. Mortgage loans or equity lines of credit junior in lien priority to the City Deed of
Trust are not permitted. Owner acknowledges that such prohibition on junior liens was
granted in consideration for the receipt of the Homebuyer Loan on favorable terms that have
assisted the Owner acquire the Property for Original Affordable Purchase Price, and that without
such financial assistance from the City, the Owner would not be have able to pay the Original
Affordable Purchase Price, or otherwise acquire the Property. The City and the Owner agree that
the requirements of this section are necessary to ensure the continued affordability of the
Property to Owner and to minimize the risk of loss of the Property by Owner through default and
foreclosure of mortgage loans. Owner further acknowledges that violation of the provisions of
this section shall constitute a Default under this Agreement. A form for use by the Owner in
requesting City subordination to a refinanced First Lender Loan is attached hereto as Exhibit F.
29.NONDISCRIMINATION
The Owner covenants by and for itself and its successors and assigns that there shall be
no discrimination against or segregation of a person or of a group of persons on account of race,
color, religion, creed, age, disability, sex, sexual orientation, marital status, ancestry or national
origin in the sale, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall the
Owner or any person claiming under or through the Owner establish or permit any such practice
or practices of discrimination or segregation with reference to the use, occupancy, or transfer of
the Property. The foregoing covenant shall run with the land.
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30.RIGHTS OF BENEFICIARIES UNDER DEEDS OF TRUSTS
This Agreement shall not diminish or affect the rights of the City under the City Note and
the City Deed of Trust.
Notwithstanding any other provision in this Agreement to the contrary, this Agreement
shall not diminish or affect the rights of the California Housing Finance Agency ("CalHFA"), the
United States Department of Housing and Urban Development ("HUD"), the Federal National
Mortgage Association ("FNMA"), or the Veterans Administration ("VA") under the First Lender
Deed of Trust or any subsequent First Lender deeds of trust hereafter recorded against the
Property in compliance with Section 28 above.
31.HUD FORBEARANCE RELIEF
Notwithstanding other provisions of this Agreement, the Option shall not be exercised by
the City when a deed of trust insured by HUD is secured by the Property, and: (i) the Owner is
undergoing consideration by HUD for assignment forbearance relief; or (ii) the Owner is
undergoing consideration for relief under HUD's Temporary Mortgage Assistance Payment
(TMAP) program.
32.INVALID PROVISIONS
If any one or more of the provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall
be deemed severable from the remaining provisions contained in this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
33.NOTICES
All notices required herein shall be sent by certified mail, return receipt requested or
express delivery service with a delivery receipt or personally delivered with delivery receipt
obtained and shall be deemed to be effective as of the date shown on the delivery receipt as the
date of delivery, or the date delivery was refused as indicated on the return receipt, or the date
Notice was returned as undeliverable as follows:
To Owner:
Address of the Property
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To the City:
City of Carlsbad
Housing Services Division
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Homebuyer Program
The parties may subsequently change addresses by providing written notice of the change in
address to the other parties in accordance with this section.
34.INTERPRETATION OF AGREEMENT
The terms of this Agreement shall be interpreted so as to avoid speculation on the
Property and to insure to the extent possible that the mortgage payments remain affordable to
low and moderate income households. Owner acknowledges that, pursuant to this Agreement, in
addition to other rights of the City set forth herein, the Owner has granted the City multiple
options to purchase the Property (as more particularly set forth in Section 12 and Section 21),
and that each option to purchase is given in consideration of the economic benefits received by
the Owner resulting from ownership of the Property made possible by the financial assistance
provided by the City to the Owner for the purchase of the Property. This Agreement shall not be
construed as if it had been prepared by one of the parties, but rather as if both parties had
prepared it. The parties have read and reviewed this Agreement and agree that any rule of
construction to the effect that ambiguities are to be resolved against the drafting party (including
but not limited to Civil Code Section 1654 as may be amended from time to time) shall not apply
to the interpretation of this Agreement. In the event of any conflict between the terms of this
Agreement, and the terms of the disclosure statement executed by the City and the Owner in
conjunction with this Agreement, the terms of this Agreement shall prevail.
35.CONTROLLING LAW: VENUE
The terms of this Agreement shall be interpreted under the laws of the State of California.
In the event any legal action is commenced to interpret or to enforce the terms of this Agreement
or to collect damages as a result of any breach thereof, the venue for such action shall be the
Superior Court of the County of San Diego.
36.ATTORNEYS' FEES
In the event any action or proceeding in court or other dispute resolution mechanism
permitted under this Agreement is commenced by either party to interpret or enforce the terms of
this Agreement, the prevailing party therein shall be entitled to recover from the non-prevailing
party all of the prevailing party's reasonable costs and expenses in connection therewith,
including on any appeal and including expert witness fees, document copying expenses, exhibit
preparation costs, carrier expenses and postage and communication expenses, and reasonable
attorneys' fees and costs for the services rendered to the prevailing party in such action or
proceeding (which shall include the reasonable costs for services of the City's in-house counsel).
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37.TIME IS OF THE ESSENCE
In all matters under this Agreement, the parties agree that time is of the essence.
38.TITLE OF PARTS AND SECTIONS
Any titles of the articles, sections or subsections of this Agreement are inserted for
convenience of reference only and shall be disregarded in construing or interpreting any part of
its provision.
39.EXHIBITS
Any exhibits referred to in this Agreement are incorporated in this Agreement by such
reference.
40.INTREPRETATION
Where the context requires herein, the singular shall be construed as the plural, and
neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa.
References in this Agreement to days shall be to calendar days. If the last day of any period to
give or reply to a notice, meet a deadline or undertake any other action occurs on a day that is not
a day of the week on which the City of Carlsbad is open to the public for carrying on
substantially all business functions (a "Business Day"), then the last day for giving or replying to
such notice, meeting such deadline or undertaking any such other action shall be the next
succeeding Business Day. In no event shall a Saturday or Sunday be considered a Business Day.
The use in this Agreement of the words "including", "such as" or words of similar import when
used with reference to any general term, statement or matter shall not be construed to limit such
statement, term or matter to the specific statements, terms or matters, unless language of
limitation, such as "and limited to" or words of similar import arc used with reference thereto.
.41. NON-WAIVER OF BREACH
Neither the failure of the City to insist upon strict performance of any of the covenants
and agreements of this Agreement, nor the failure by the City to exercise any rights or remedies
granted to the City under the terms of this Agreement shall be deemed a waiver or
relinquishment of: (i) any covenant contained in this Agreement, or of any of the rights or
remedies of the City under this Agreement; or (ii) the right in the future of the City to insist upon
and to enforce by any appropriate legal remedy a strict compliance with all of the covenants and
conditions of this Agreement.
42. OWNER'S ACKNOWLEDGEMENT OF RESALE RESTRICTION
Owner hereby acknowledges and agrees that:
A. Owner hereby subjects the Property to the restrictions set forth above, and hereby
limits the price for which Owner may sell the Property and the persons to whom Owner may sell
the Property as set forth above. The resale price limitation and other provisions contained in this
20
1010/17/2032990.2
Agreement restrict the full benefits of owning the Property. Owner may not enjoy the same
economic or other benefits from owning the Property that Owner would enjoy if this Agreement
did not exist.
B.Owner acknowledges that the City provided the Homebuyer Loan to the Owner
because of the Owner's income eligibility, and the Owner further acknowledges that this
Agreement requires that the Property be made available to Eligible Purchasers at an affordable
price.
C.Owner understands all of the provisions of this Agreement. In recognition of the
acknowledgments and agreements stated in this Section, Owner accepts and agrees to the
provisions of this Agreement with the understanding that this Agreement will remain in full force
and effect as to the Property following any Transfer of the Property throughout the Term.
D.OWNER UNDERSTANDS THAT THE DETERMINATION OF THE
MAXIMUM RESTRICTED RESALE PRICE OF THE PROPERTY TO AN ELIGIBLE
PURCHASER CAN BE MADE ONLY AT THE TIME OF THE PROPOSED TRANSFER,
TAKING INTO CONSIDERATION INCREASES IN MEDIAN INCOME AND OTHER
FACTORS THAT CANNOT BE ACCURATELY PREDICTED, AND THAT THE SALES
PRICE PERMITTED HEREUNDER MAY NOT INCREASE OR DECREASE IN THE SAME
MANNER AS OTHER SIMILAR REAL PROPERTY WHICH IS NOT ENCUMBERED BY
THIS AGREEMENT OR SUBJECT TO THE CITY'S HOMEBUYER PROGRAM. OWNER
FURTHER ACKNOWLEDGES THAT AT ALL TIMES IN SETTING THE SALES PRICE OF
THE HOME, THE PRIMARY OBJECTIVE OF THE CITY AND THIS AGREEMENT IS TO
IMPLEMENT THE CITY'S HOMEBUYER PROGRAM IN ORDER TO PROVIDE HOUSING
TO ELIGIBLE PURCHASERS AT AFFORDABLE HOUSING COST. THE MAXIMUM
RESTRICTED RESALE PRICE COULD BE LESS THAN OTHER SIMILAR PROPERTIES
THAT HAVE NO RESTRICTIONS. NOTWITHSTANDING SUCH LIMITATIONS AND
RESTRICTIONS IMPOSED ON THE PROPERTY PURSUANT TO THIS AGREEMENT,
OWNER DESIRES TO OBTAIN THE HOMEBUYER LOAN AND HAVE THE PROPERTY
SUBJECT TO THIS AGREEMENT.
/
(Initials of Owners
43. COUNTERPARTS
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts, which shall constitute one and the same agreement.
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R424,4
(9110-1..ct L. C 0
By:
Name:
Date:
IN WITNESS WHEREOF, the parties have executed this Agreement on or as of the date
first written above.
CITY:
CITY OF CARLSBAD, a municipal corporation
By: .e.
Name: P11-1 1-2-)--
Its: A
OWNER:
OWNER:
By:
Name:
Date:
/-
0,r‘ ir-c347 Oc40((
//p2y,pa-c)
(Proper notarial acknowledgment of execution must be attached)
22
1010/17/2032990.2
(Seal)
MOAG.EN FRY
Notary Pubbc - California
CornSamnispsronotiC2o2u67605
"`"° my Comm. Expires Dec 24, 2022
WITNESS my hand and official seal.
Signature
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California S County of an Diego
On before me, Morgen Fry, Notary Public
(insert name and title of the officer)
personally appeared (;--e:A--iC
who proved to me on the basis of satisfactory evidence to be the person) whose name(s) istafe
subscribed to the within instrument and acknowledged to me that he/she/they-executed the same in
his/her/their authorized capacity(res), and that by his/her/their signature( on the instrument the
person), or the entity upon behalf of which the person) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
_ Notary Pubk a - Californi
J. COLTER
5 San Diego County
Commission ti 2290309 .
MV Comm. Expires Jun 23. 2023
WITNESS my hL. and o
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY PF SAN DIEGO
On tit 1_21)20
ss:
before me, FOR NOTARY SEAL OR STAMP
Notary Public, personally appeared Dq i
who proved to me on jhq basis of satisfactory evidefree to be the
person(s)whose name(s scribed to the within instrument and
acknowledged to me that h she/they executed th same in
(9/her/their authorized capacity(ies) and that by his er/their
signature(s)on the instrument the person(s), or the entity pon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State
of California that the forego g aragraph is true and correct.
WITNESS my ha i and of ia seal.
J. COLTER
i
Notary Public - California
San Diego County
Commission it 2290309
My Comm. Expires Jun 23. 2023
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFOBS,
COUNTY OF AA) EU)
On III aS 202..O before me,
Notary Public, personally appeared tila( (Shae.., L • (,)' 12a
who proved to me on h basis of satisfactory evidence ° be the
person(s)whose name(s) jsPare ubscribed to the within instru ent and
acknowledged to me that he they execute4 the same in hi the their
authorized capacity(ies) an that by his their signature s on the
instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing par graph is true and correct.
} SS:
FOR NOTARY SEAL OR STAMP
Notaryak (DSI Rev. 02;09115)
Escrow No.: SHK12008-006-AM4
EXHIBIT "A"
Legal Description
A CONDOMINIUM COMPRISED OF:
PARCEL 1:
AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN
THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL
TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS
SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON
JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO
(COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO.
14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP").
PARCEL 2:
RESIDENTIAL UNIT NO. 8, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN;
PARCEL 3:
AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY,
DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES
DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL
RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS
DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY,
THE "DECLARATION").
PARCEL 4:
A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS
AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY
DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D,
AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT
GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON SEPTEMBER 4, 2019 AS DOCUMENT NO. 2019-0380430, WHICH EASEMENT IS
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 5:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND
EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY
DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH
EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE.
EXHIBIT B
FORM OF OWNER OCCUPANCY CERTIFICATION
To: City of Carlsbad ("City")
From: [name of owner(s)] ("Owner(s)")
Address of Property: ("Property")
Date:
By signature below, I [insert name or names of
Owner(s)] hereby certify to the City under penalty of perjwy that I/we occupy the home located
at [insert address] ("Property") as my/our
principal place of residence and that 1/we have occupied the Property for
[insert number] months of the calendar year [insert previous calendar year].
Attached to this letter is a copy of [insert utility bill or driver's license] showing
my place of residence?
All of the occupants of the Property are listed as follows:
This Owner Occupancy Certification is signed on 20, under penalty of
perjury.
By:
Date:
By:
Date:
Owner signature
Owner signature
Due Date: of each calendar year.
Attach copy of utility bill or driver's license showing address of Property.
B-1
1010/17/2032990.2
EXHIBIT C
FORM OF OWNER'S NOTICE OF INTENT TO TRANSFER
To: City of Carlsbad ("City")
From: [name of owner(s)] ("Owner(s)")
Address of Property: ("Property")
Date:
Please be notified pursuant to Section 8 of the Resale Restriction Agreement and Option to
Purchase between Owner and City dated that the Owner intends to transfer the
Property listed above.
A. The following information is provided to the City pursuant to Section 8 of the Resale
Agreement:
1.Address of Property:
2.Date Owner purchased Property:
3.Original Affordable Purchase Price:
4.Original amount of Homebuyer Loan:
5.Full Purchase Price:
6.Date Owner intends to vacate Property:
7.. Date Property will be placed on market:
8. Name and phone number of person for City to contact to schedule inspection:
and
(name) (phone number)
B.As required by Section 8 of the Resale Restriction Agreement, the following the HUD-1
Settlement Statement from Owner's purchase of the property is attached.
C.I have not yet listed the Property for sale with a multiple listing service, or contacted a
real estate broker or financial institution. I agree to prepare the Property for sale by:
1. obtaining a pest control report within thirty (30) days of the date of this notice;
C- 1
1010/17/2032990.2
2.repairing all damage noted in the pest report within the sooner of: (i) sixty (60)
days from the date of this notice; or (ii) two (2) weeks prior to close of escrow or the transfer of
the Property;
3.allowing the City or its designee to inspect the Property within thirty (30) days of
this notice;
4.maintaining utility connections until the Property is transferred;
5.permitting a walk through by the City prior to close of escrow or the transfer.
This Owner's Notice of Intent to Transfer is certified by Owner to be true and cornet and
is signed on the date(s) below under penalty of perjury.
By:
Date:
By:
Date:
Owner signature
Owner signature
C-1
1010/17/2032990.2
EXHIBIT D
FORM OF CITY RESPONSE NOTICE
To: ("Owner(s)")
From: City of Carlsbad ("City")
Address of Property: ("Property")
Date:
Thank you for delivering the Notice of Intent to Transfer. This letter is the City Response Notice
described in Section 10 of the Resale Restriction Agreement that was recorded against title to
your home. The City:
1. City will check this Sentence #1 and complete other information listed in #1 if the
City intends to exercise its option to purchase the Property or assign its option to the Property to
a Designated Purchaser at any point during the entire Term of the Resale Restriction Agreement.
A.Affordable Sales Price: $
B.Amount owed on Homebuyer Loan: $
C.Full Sales Price (add numbers in 1(A) and 1 (B)): $
D.Fair Market Value (as estimated by the City): $
The Price for which you may sell your Property (or the Maximum Restricted Resale
Price)
(The greater of 1(C) and 1(D)): $
In connection with the City's Option, you will owe a $ to City.
If the City has assigned its option, the name of Designated Purchaser is
The City or its Designated Purchaser will follow up with you to complete the sale of your
Property. If a Designated Purchaser purchases your Property, that designated purchaser may
assume the amount you owe on the Homebuyer Loan. If the City purchases your Property the
amount you owe on the Homebuyer Loan shall credited against the purchase price paid by the
City.
D-1
1010/17/2032990.2
2. City will check this Sentence #2 and complete other information listed in #2 if
the City intends for Owner to sell the Property to an Eligible Purchase during years 1-15 of the
Resale Restriction Agreement.
A.Affordable Sales Price: $
B.Amount owed on Homcbuyer Loan: $
C.Full Sales Price (add numbers in 1(A) and 1(B)): $
D.Fair Market Value (as estimated by the City): $
The total price for which you may sell your Property (or the Maximum Restricted Resale
Price) (the greater of 1(C) and l(D)): $
As noted in 2(B) above, the amount owed on the Homebuyer Loan is $ . An
Eligible Purchaser is likely to assume the City Note and will then agree to repay the
amount of the Homebuyer Loan.
You must market your Property to an "Eligible Purchaser" as required by Section 15 of
the Resale Restriction Agreement.
The Maximum Qualifying Income of Eligible Purchaser is:
Low Income Household
1 person household $
2 person household $
3 person household $
4 person household $
5 person household $
6 person household $
Moderate Income Household
1 person household $
2 person household $
D-2
I 010117/2032990.2
3 person household $
4 person household $
5 person household $
6 person household $
When you locate a proposed purchaser of your Property, you must provide the City with
the information listed in Section 15(B) of the Resale Restriction Agreement and 15(D)(1)
through (4). Upon sale of your Property to a proposed purchaser who has been approved by the
City as an Eligible Purchaser, you must provide the information required by Section 15(D)(5)
through (7).
3. The City will check this Sentence #3 if it does not wish to exercise or assign its
option to purchase the Property between the sixteenth (16th) year of the Resale Restriction
Agreement and the end of the Term. At this point you may proceed to sell your Property to a
third party for a market price. Upon sale of the Property, you must provide the City with the
information required by Section 17 of the Resale Restriction Agreement. You also you must
repay $ to the City as required by the City Promissory Note.
CITY:
Name:
Title:
Date:
Designated Purchaser (if applicable):
Name: Name:
Date: Date:
All questions regarding this notice should be directed to
D-3
1010/17/2032990.2
EXHIBIT E
FORM OF OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
Name:
Address of Property:
I (We), [insert name(s)] hereby acknowledge that I (We)
received the City Response Notice (as described in Section 10 of the Resale Restriction
Agreement on [insert date(s)].
By:
Owner signature
Date:
By:
Owner signature
Date:
E-1
1010/17/2032990.2
EXHIBIT F
FORM OF OWNER REQUEST FOR CITY SUBORDINATION
TO REFINANCED FIRST LENDER LOAN
To: City of Carlsbad ("City")
From: ("Owner(s)")
Property Address: ("Property")
The Owner hereby requests the City to approve the Owner's refinance of the existing first
mortgage on the Property. The Owner provides the following information which it certifies to be
true and correct:
1.Original Affordable Purchase Price of Property: $
2.Original I Iomebuyer Loan Amount $
3.Full Purchase Price of Property (1 plus 2) $
3. Original principal balance of existing First Lender Loan: $
4.Interest rate of existing First Lender Loan:
5.Outstanding principal balance of existing First
Lender Loan:
6.Monthly payments due on existing First Lender Loan
7.Principal amount of proposed new First Lender Loan:
8.Interest rate of Proposed new First Lender Loan:
9.Monthly payments to be due on new First Lender Loan: $
The Owner hereby certifies the above information is true and correct and this Owner(s) Request
is executed under penalty of perjury on the date(s) below.
By:
Owner signature Date
By:
Owner signature Date
F-1
1010/17/2032990.2
DOC# 2020-08 1 7948 -
I MI111111 illPillE1111111111111 111 1E1 111 11111111il
...D:ec 18, 2020 04:59 PM
; OFFICIAL RECORDS
•:Synest3. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $29.00 (SB2 Atkins: $0.00)
PAGES: 6
RECORDING REQUESTED BY:
FNTG BUILDER SERVICES— •N-)-f3'
ESCROW NO. SHK12008-006-AM4
ORDER NO. SHK12008-006KC
AND WHEN RECORDED MAIL TO:
City of Carlsbad
Attn: Housing Services manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
APN: 213-262-22-08
77-1IS SPACE FOR RECORDERS USE
NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
1 El Exempt from fee per GC27383; No fee shall be charged by the recorder for services
rendered to the State, to any municipality, county in the State:or other political subdivision
thereof, except for making a copy of a paper or record.
2 Exempt from fee per GC27388.1 due to being recorded in connection tvith concurrent transfer that
is subject to the imposition of documentary transfer tax, or,
THIS PAGE ADDED TO PROVIDE SENATE BILL 2 DITAPTION INFORMATION
(Additional recordingfeeapplies)
Recording Requested by:
FNTG Builder Services
CD 60(a 11A/K.0
RECORDING REQUESTED PURSUANT
TO GOVERNMENT
CODE SECTION 27383
When Recorded Mail To:
City of Carlsbad
Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
NOTICE OF AFFORDABILITY RESTRICTIONS ON TRANSFER OF PROPERTY
NOTICE IS HEREBY GIVEN, that the City of Carlsbad ("City"), has required Ronald L. Cogbill
and Christine L. Cogbill, Husband and Wife as Joint Tenants ("Owner") to enter into certain
affordability covenants and restrictions entitled, Affordability Restrictions on Transfer of Property,
Occupancy, and Refinancing Restrictions and Option to Purchase ("Restrictions"), with reference to
certain real property located at 6164 Colt Place #103, Carlsbad, CA 92009, San Diego County
("Property"), and further described in Exhibit A, incorporated herein by reference.
The affordability covenants and restrictions contained in the Restrictions include without limitation
and as further described in the Restrictions:
1.The Property is restricted for resale to a low-income household at a purchase price
affordable to a low-income household, except as set forth in the Restriction.
2.The Owner must occupy the Property as the Owner's principal residence.
3.The Owner must give notice to the City before resale of the Property.
4.The Owner has granted the City an option to purchase the Property upon resale or default.
5.The Owner's rights to pledge the Property as security for a debt are limited.
In the event of any conflict between this Notice of Affordability Restrictions on Transfer of Property
("Notice") and the Restrictions, the terms of the Restrictions shall prevail.
The Restrictions have been recorded concurrently herewith and shall remain in effect for thirty (30)
years commencing on the date of recordation of the Restrictions.
This Notice is being recorded and filed by the City of Carlsbad ("City") in compliance with Health and
Safety Code Sections 33334.5(f)(3) and (4) and/or Section 33413(c)(5), as amended effective this date,
and shall be indexed against the City and the Owner.
1
(Signatu
14 4. C 6)Gb LL
(Signature)
1 L
IN WITNESS WHEREOF, the parties have executed this Notice of Affordability Restrictions on
Transfer of Property on or as of the date first written above.
CITY:
CITYOF CARLSBAD
By:
Geoff Patnoe, Assistant City Manager
OWNER:
(Print Name)
Dated: I ( Dated:
(Print Name)
Dated:
(PROPER NOTO.RIAL ACKNOWLEDGEMENT MUST BE ATTACHED)
2
WITNESS my hand official
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA }
COUNTI OF SAN DIEGO ss:
On 11 a-.5 2.& before me,
o
Notary Public, personally appeared f<Prit, AA L. • I.Dcliji 1 (
who proved to me on the basis of satisfactory evidence to be the
person(s)whose name()are Jscribed to the within instrument and
acJpowledged to me that he/they executed same in
er/their authorized capacity(ies) and that b hi /her/their
signature(s)on the instrument the person(s), or the entity upon behalf
of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State
of California that the foregoin paragraph is true and correct.
WITNESS my d and al seal.
FOR NOTARY SEAL OR STAMP
J. COLTER
, ... . Notary Public - California m Sar Diego County g Commission # 2290309 , --'-'9-:"—' my Comrn. Expires Jun 23. 2023
Signature
A notary public or other officer completing this
certificate verifies only the identity of the
individual who signed the document to which this
certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
On 1 1 I aW)cle)
Notary Public, personally appeared L. &).L / 11
who proved to me on th basis of satisfactory evidence To be the
person(s)whose name(s)Usr subscribed to the within instrument and
acknowledged to me that h she they executed the same in h. their
authorized capacity(ies) an that by hi their signature on the
instrument the person(s), or the entity
person(s) acted, executed the instrument.
certify under PENALTY OF PERJURY under the laws of the State of
California that the foregoing paragrap is true and correct.
} SS:
before me, FOR NOTARY SEAL OR STAMP
COUNTY OF 5
J. COLTER
Notary Public - California
Sa7 Diego County
•Commisior Ii 2290309
My Comm. Expires Jun 23. 2023
on behalf of which the
Notaryak (DSI Rev. 02109115)
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Diego
On Dte, , before me, Morgen Fry, Notary Public
(insert name and title of the officer)
personally appeared 67.c"-C, pectl Acc
who proved to me on the basis of satisfactory evidence to be the persons) whose name ts) is/are-
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(res), and that by his/her/their signature(s) on the instrument the
person(N, or the entity upon behalf of which the person( N acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
MORGEN FRY
Notary Public - California 0 . San Diego County
11 Commission # 226E1605
r*"" d'Aty Comm. Expires Dec 24, 2022
Escrow No.: SHK12008-006-AM4
EXHIBIT "A"
Legal Description
A CONDOMINIUM COMPRISED OF:
PARCEL 1:
AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN
THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL
TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS
SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON
JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO
(COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO.
14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP").
PARCEL 2:
RESIDENTIAL UNIT NO. 8, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN;
PARCEL 3:
AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY,
DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES
DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL
RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS
DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY,
THE "DECLARATION").
PARCEL 4:
A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS
AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY
DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D,
AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT
GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON SEPTEMBER 4, 2019 AS DOCUMENT NO. 2019-0380430, WHICH EASEMENT IS
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 5:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND
EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY
DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH
EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE.
DOC# 2020-0817949
I 11E1 11111 1 11E1E1111BH 1 1111111111111111111 11111
Dec 18, 2020 04:59 PM
OFFICIAL RECORDS Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER
FEES: $53.00 (SB2 Atkins: $0.00)
PAGES: 14
RECORDING REQUESTED BY:
FNTG BUILDER SERVICES — 1,1
ESCROW NO. SHK12008-006-AM4
ORDER NO. SHK12008-006KC
AND WHEN RECORDED MAIL TO: '
City of Carlsbad
Attn: Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
APN: 213-262-22-08
THIS SPACE FOR RECORDERS USE
SUBORDINATION AGREEMENT
1 (El Exempt from fee per GC27388.1 due to being recorded in connection with concurrent transfer that
is subject to the imposition of documentary transfer tax, or,
2 0 Exempt from fee per GC27388.1 due to being recorded in connection with a transfer that was
subject to documentary transfer tax which was paid on document recorded previously on:
(date) is document number of Official Records
3 0 , Exempt from fee per GC2788.1 due to the maximum fees being paid on documents in this
transaction, or,
,
4 0 Exempt from fee per GC27388.1 due to the maximum fees haw* been paid on documents in the
transaction(s) recorded previously on (date) as document number(s)
of Official Records, or
5 - 0 Exempt from fee per GC27388.1; document transfers real property that is a residential dwelling to
an owner-occupier, or,
6 0 Exempt from fee per GC27388.1 due to being recorded in connection with concurrent transfer that
is a residential dwelling to an owner-occupier, or,
7 0 Exempt from fee per GC27388.1 due to it being recorded in connection with a transfer of real
property that is a residential dwelling to an owner-occupier. The recorded document transferring
the dwelling to the owner-occupier was recorded on (date) as
document number(s) • , or,
8 0 Exempt from the fee per GC 27388.1 (a) (1); Not related to real property, or,
9 0 Exempt from fee under GC27388.1 for the following reasons:
THIS PAG E ADDED TO PROVIDE SENATE BIU_21NNIPTION INFORMATION
(Additional recordingfeeapplies)
REQUESTED BY:
FNTG Builder Services
Order No. SHK12008-006AM/KC
City of Carlsbad
WHEN RECORDED RETURN TO:
City of Carlsbad
Attention: Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, California 92008
Space above for Recorder's Use
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS
IN YOUR SECURITY IN THE PROPERTY BECOMING
SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN
OF SOME OTHER OR LATER SECURITY INSTRUMENT
THIS SUBORDINATION AGREEMENT ("Agreement") is made and entered into as of
November 25, 2020, by and among CrossCountry Mortgage, LLC (together with its successors and
assigns, "Senior Lender"), CITY OF CARLSBAD, a municipal corporation ("Subordinated Lender"),
and Ronald L. Cogbill and Christine L. Cogbill, Husband and Wife as Joint Tenants "Borrower").
RECITALS:
Senior Lender has agreed, subject to certain conditions, to lend to Borrower up to $181,000.00 to be
secured by a promissory note (the "Senior Note") and a Deed of Trust, Security Agreement, Assignment
of Leases and Rents, and Fixture Filing dated as of De ( .try..W.Ae t 1 , 2020 granted by
Borrower for the benefit of Senior Lender against the real property described on Exhibit A attached hereto
(the "Property") (the "Senior Trust Deed." and the Senior Note and Senior Trust Deed being collectively,
the "Senior Loan Documents").
Subordinated Lender has agreed, subject to certain conditions, to make a loan to Borrower in the aggregate
maximum principal amount of $414,000.00 (the "Subordinated Loan") securing Subordinated Lender's
contribution under its Homebuyer Program, Affordable Housing Agreement, Resale Restriction, Deed of
Trust and Promissory Note identified on Exhibit B attached hereto (collectively, the "Subordinated Loan
Documents), and which Subordinated Loan Documents are secured against the Property.
One of the conditions of Senior Lender extending credit to Borrower is the subordination of (a) the
Borrower's obligations to the Subordinated Lender under the Subordinated Loan Documents to the
Borrower's obligations to the Senior Lender under the Senior Loan Documents and (b) the Subordinated
Liens, defmed below, to the Senior Trust Deed.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as
follows:
I. Definitions. For purposes of this Agreement, the following terms shall have the following
meanings:
1.1 "Subordinated Indebtedness" means all obligations of any type or nature owed under
the Subordinated Loan or secured by the Subordinated Liens, presently or hereafter due from
Borrower to Subordinated Lender under the Subordinated Loan Documents, including without
limitation the Subordinated Loan, together with all interest and other charges or expenses
incidental thereto.
1.2 "Subordinated Liens" means all liens, mortgages, encumbrances, restrictions, and
security interests of any type or nature, previously or hereafter granted by Borrower to
Subordinated Lender, including without limitation, mortgages, encumbrances, restrictions, and
security interests granted in or arising under the Subordinated Loan Documents.
1.3 "Senior Indebtedness" means all obligations of any type or nature owed under the
Senior Loan Documents or secured by the Senior Trust Deed, presently or hereafter due from
Borrower, its successors and assigns, to Senior Lender, its successors, assigns, or participants,
including, without limitation, all principal, interest, charges, and expenses under or incidental to
the indebtedness owed under the Senior Loan Documents or secured by the Senior Liens.
1.4 "Senior Liens" means all liens, mortgages, security interests, and collateral
assignments of any type or nature granted by Borrower to Senior Lender in or arising under the
Senior Trust Deed, or in any other document or agreement securing payment of the Senior
Indebtedness, and any amendments, modifications, or supplements thereto.
2.Consent of Subordinated Lender. Notwithstanding any of the terms of the documents and
instruments creating the Subordinated Indebtedness, the Subordinated Lender does hereby consent to
the creation, now or hereafter, of the Senior Indebtedness and the Senior Liens and to the execution and
delivery by Borrower of any and all documents and instruments in connection therewith, including,
without limitation, the Senior Note, the Senior Trust Deed, and to the performance by Borrower of any
and all of its obligations under or in connection therewith. Subordinated Lender agrees that no such
action shall constitute an event of default or event, which with the passage of time, will become an event
of default under any document or instrument relating to the Subordinated Indebtedness or
Subordinated Liens.
3.Subordination of Subordinated Liens. In consideration of Senior Lender advancing the
Senior Indebtedness, the Subordinated Lender agrees that the Subordinated Indebtedness is hereby
subordinated to the Senior Indebtedness and the Subordinated Liens are hereby subordinated to the Senior
Liens; the Senior Liens shall be first, prior, and superior to the Subordinated Liens. The terms and
provisions of any document creating Subordinated Indebtedness or a Subordinated Lien are hereby
amended to provide that the Subordinated Indebtedness and the Subordinated Liens therein granted are
subordinate to the Senior Indebtedness and the Senior Liens respectively and that none of the terms of
such documents or instruments evidencing the Senior Indebtedness or the Subordinated Liens shall affect
or limit in any way the rights or remedies provided to the holder of the Senior Indebtedness under the
Senior Loan Documents or the Senior Liens.
4.Insolvency Proceeding Against Borrower. The insolvency or bankruptcy of Borrower
shall not affect this Agreement, and the same shall remain in full force and effect. In any insolvency or
bankruptcy proceeding for the complete liquidation of Borrower (as opposed to a Chapter I 1
Reorganization), Subordinated Lender shall not receive any distribution from the bankruptcy estate of
Borrower unless and until the Senior Indebtedness has been satisfied in full.
5.Subordinated Loan Documents. Subordinated Lender shall not, without the prior written
consent of Senior Lender, amend, modify, or supplement the Subordinated Loan Documents or any other
documents or instruments creating or evidencing the Subordinated Indebtedness or Subordinated Liens.
6.Assignment. Subordinated Lender represents and warrants that no part of the Subordinated
Indebtedness or Subordinated Liens have been assigned or transferred to or for the benefit of others.
Subordinated Lender agrees not to sell, assign, transfer, or endorse the Subordinated Indebtedness, no
matter how evidenced, to anyone except subject to the terms and conditions of this Agreement. The
terms of this Agreement shall bind the successors and assigns of the parties.
7.Additional Documentation. Subordinated Lender agrees to execute and deliver to Senior
Lender such other instruments as may reasonably be requested by Senior Lender in order to enable
Senior Lender to enforce its rights hereunder.
8.No Liability. The parties hereto agree that Senior Lender shall not be liable for any action
or failure to act under or in connection with any of the documents or instruments creating the Senior
Liens or the Senior Indebtedness, it being understood that the decision of whether and when to act and
the manner of proceeding under such instruments and documents shall not be affected in any manner by
the existence of the Subordinated Indebtedness and the Subordinated Liens. It is further agreed that such
obligations as may be imposed under the documents and instruments creating the Senior Indebtedness
and the Senior Liens or under applicable laws shall run exclusively to the benefit of Borrower and may
be enforced or waived only by Borrower and not by the holders of the Subordinated Liens or
Subordinated Indebtedness.
9.Insurance and Condemnation. Subordinated Lender agrees that if it receives any
insurance or condemnation proceeds in respect of any of the assets of Borrower subject to the Senior
Liens, Subordinated Lender shall immediately so notify Senior Lender in writing and shall deliver such
proceeds to Senior Lender so long as any Senior Indebtedness remains unpaid.
10.Irrevocability of Agreement. Subordinated Lender agrees that, without notice to or further
assent by Subordinated Lender (a) the liability of Borrower in respect of the Senior Indebtedness or the
Senior Liens may, in whole or in part, be released by Senior Lender and the documents and instruments
creating or evidencing the Senior Indebtedness or the Senior Liens may be amended or supplemented,
as Senior Lender may deem advisable, provided, however, Senior Lender shall not increase the interest
rate, increase the principal amount , or reduce the term of its loan, except as set forth in or permitted under
the terms of the Senior Loan Documents, without the prior written consent of the Subordinated Lender,
provided that no such written consent is required for the Lender to enter into (i) any modification, deferral
or forbearance agreement with the Borrower relating to the Senior Indebtedness or the Senior Liens
(which may involve deferral or capitalization of principal on an interest-free or interest-bearing basis or
extending the maturity date) as the result of the Borrower's temporary or permanent financial hardship or
caused by natural disasters or other events impacting the Borrower or the property subject to the Senior
Liens or (ii) any deed involving a transfer of title by the Borrower to the Senior Lender in satisfaction of
the Senior Indebtedness to avoid foreclosure (b) any collateral and/or security interests in respect of the
Senior Indebtedness or the Senior Liens may, from time to time, in whole or in part, be exchanged, sold,
or surrendered by Senior Lender, and (c) any deposit balance or balances to the credit of Borrower may,
from time to time, in whole or in part, be surrendered or released by Senior Lender to Borrower, all
without impairing or in any way affecting the subordination contained in this Agreement; nor shall the
subordination herein contained be impaired or affected in any way by any other action, inaction, or
omission in respect of the Senior Indebtedness or the Senior Liens or this Agreement.
11. Default.
11.1 Upon the occurrence of any event which would permit Subordinated Lender to
accelerate the maturity of the Subordinated Indebtedness, before exercising such acceleration
remedy, Subordinated Lender shall provide thirty (30) calendar days ' advance written notice to
Senior Lender of its intent to accelerate the Subordinated Indebtedness. Such notice shall specify
in reasonable detail the default entitling Subordinated Lender to accelerate. Subordinated Lender
shall accept any cure by Senior Lender as if made by Borrower.
11.2 Following the Senior Lender's providing notice to the Borrower of acceleration of the
maturity of the Senior Indebtedness, Senior Lender shall endeavor to notify Subordinated Lender
thereof within five (5) business days after giving such notice and shall provide Subordinated Lender
with not less than sixty (60) days' notice to cure the default that caused the acceleration. Lender
shall be entitled to commence or continue any proceedings to enforce its rights against the
Borrower, including foreclosure proceedings, provided that Lender shall suspend or postpone the
scheduled date of any foreclosure sale until after the period of notice to the Subordinated Lender
has expired. The Senior Lender will not be in violation of this Section 11.2 if a court with
jurisdiction over the foreclosure proceeding (if any), or the bankruptcy court in a bankruptcy case,
or the public official charged with carrying out the activity or event, fails or refuses to halt the sale
after the Senior Lender has made reasonable efforts to move the court or request the public official
for a suspension or postponement of the sale. After receipt of notice from Senior Lender of such
acceleration, Subordinated Lender shall hold for the benefit of Senior Lender all payments received
thereafter from Borrower and shall promptly remit the same to Senior Lender. Senior Lender shall
accept any cure by Subordinated Lender that fully remedies the default as if made by Borrower.
12. Miscellaneous.
12.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, including any party' substituted as a beneficiary under
the Senior Trust Deed. This Agreement shall be construed and enforced in accordance with the
laws of the State of California.
12.2 If any of the provisions or terms of this Agreement shall for any reason be held invalid
or unenforceable, such invalidity or unenforceability shall not affect any other of the terms hereof,
and this Agreement shall be construed as if such unenforceable term had never been contained
herein.
12.3 All notices and other communications hereunder shall be deemed to have been duly
given, made, or served, if in writing and delivered personally or mailed by first class mail, postage
prepaid, to the respective parties to this Agreement as follows:
(a) If to Borrower:
6164 Colt Place #103
Carlsbad, CA 92009
(b) If to Subordinated Lender:
Carlsbad Housing Services Department
Attn: Housing Services Manager
1200 Carlsbad Village Drive
Carlsbad, CA 92008
With a copy to:
Carlsbad City Attorney
1200 Carlsbad Village Drive
Carlsbad, California 92008
(c) If to Senior Lender:
CrossCountry Mortgage, LLC
6850 Miller Road
Breckersville, OH 44141
The designation of the person to be so notified or the address of such person for the purposes of
such notice may be changed from time to time by similar notice in writing, except that any
communication with respect to a change of address shall be deemed to be given and made when
received by the party to whom such communication was sent.
12.4 This Agreement represents the entire Agreement between the parties hereto on the
subject matter hereof and, except as expressly provided herein, shall not be affected by reference
to any other documents. Neither this Agreement nor any provision hereof may be changed,
waived, discharged, or terminated orally, but such may be accomplished only by an instrument in
writing signed by the party against whom enforcement of the change, waiver, discharge, or
termination is sought.
12.5 In the event any action is filed to enforce or construe the terms of this Agreement,
the prevailing party shall be entitled to recover reasonable attorney fees. Attorney fees
shall include services rendered at both the trial and appellate levels, as well as rendered
in any bankruptcy proceeding or arbitration proceeding.
[Remainder of this page intentionally left blank.]
TN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date and year first above written.
CITY OF CARLSBAD,
a municipal corporation
BY:
Its:'
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF Stk V\ TA Q-4Y)
) ss.
On OLC- .1 NA() B ,2020, before me, . _ 11)
Notary Public, personally appeared PA---2h\, who proved to me
on the basis of satisfactory evidence to be the personN whose name) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ie,), and that by his/her/their signature(6) on the instrument the person(s), or
the entity upon behalf of which the person(k) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
. the foregoing paragraph is true and correct.
WrrNTEss my hand and official seal. mORGEN FRY
Notary Public • California
- San Diego County
Commission 8 2268605
My Comm. Expires Dec 24, 2022
5
[Signature Page to Subordination Agreement]
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if Wit&
CvJ4cIaf
By:
SENIOR LENDER:
CrossCountry Mortgage, LLC
4 t-cf/ pt
A notary public or other officer completing. this certificate verifies only .the
identity or the individual who signed. the document to which this certificate. is
attached, and not the truthfulness, accuracy, or validity of that document.
FE OF OHIO
) ss.
COUNT F Cuyahoga
, 2020, before me, Alex J. Ragon
Notary Pub Ii c, persot appeared Brett Schiffer , who proved to me. on
Fidence to be the person(s) whose name(s) is/are subscribed .to the
dged to me that he/she/they executed the same in his/her/their
his/her/their signature(s) on the instrument the person(s), or
(s) acted, executed the instrument.
On
the basis of satisfactory
within instrument and ackno
authorized. capacity(ies), and that
the entity upon behalf of which the per
I certify under PENALTY OF PERJUR
foregoing paragraph is true and correct
WITNESS official seal.
mder the laws of the State of California that the
ALEX J. RAGON
ATTORNEY-AT-LAW
NOTARY PUBLIC - STATE OF OHIO
LIFETIME COMMISSION
[Signature Page to Subordination Agreement)
S-2 4842-7210-8112.4
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed
the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF OHIO
COUNTY OF CUYAHOGA
On NOVEMBER 3, 2020 before me, ALEX RAGON
Notary Public, personally appeared BRETT A. SCHIFFER
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies) and that by his/her/their signature(s)on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
ALEX J. RAGON
ATTORNEY-AT-LAIN
I NOTARY PUBLIC - STATE OF OHIO
LIFETIME COMMISSION
FOR NOTARY SEAL OR STAMP
Notaryak (DSI Rev. 02/09/15)
NOTARY SEAL
GOVERNMENT CODE SECTION 27361.7
I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE DOCUMENT TO
WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
NAME OF NOTARY Al? x -a . v_asav,
DATE COMMISSION EXPIRES Li Yv\e, Lolry-\ rvA j S Si' 0 v)
COMMISSION NUMBER lV/A
PLACE OF EXECUTION C 06e\o03 01n
DATE Novtivvto-e-r 3, 49.0.-0
SIGNED
Notary Seal Affidavit (notarysealaff)(04-06)
BORROWER:
By:
R°7:
1
Christine L. Cogbill
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this celtificate is
attached, and not the truthfulness, accuracy, or validity of that document.
) ss.
On ,2O2
0 bee c7-S'
Notary Public, personally appeared fo L.. LO /0I ti , who proved to me on
the basis of satisfactory evidence to be the person(s) 'hose name(s) are subscribed to the
within instrument and acknowledged t ne thate/she/they executed the same in@i5her/their
authorized capacity(ies) , and that b hi her/their signature(s) on the instrument the person(s) , or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and oøicial seal.
STATE OF CALIFORNIA
COUNTY OF c541-1U,V.
J. COLTER
_ Notary Public - California z
Tea Saii.0i.eso County . Cor"irniwon 2290309 .
my Cornm. Fyoires Jun 23, 2023
[Signature Page to Subordination Agreement]
S-3 4842-7210-8112.4
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ZAD
On
Notary Public, personally appeared
ss:
'before me,
TIbt)
STATE OF CALIFO
COUNTY
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
who proved to me on the basis of satisfactory evidence to be the person(s)whose name( e subscribed to the within
instrument and acknowledged to me that h /they executed the same in 1-1. their authorized capacity(ies) and that
by hisRtitheir signature(s)on the instrument the person(s), or the entity 1pc1 behalf of which the person(s) acted,
executtlithe instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Signature
J. COuT
0., Notary
Sar Oingo County Commission 4 2290309 My Comm. Expitps Jon 23, I023
FOR NOTARY SEAL OR STAMP
Nolacyck (DST Rcv. 02/09/15)
Escrow No.: SHK12008-006-AM4
EXHIBIT "A"
Legal Description
A CONDOMINIUM COMPRISED OF:
PARCEL 1:
AN UNDIVIDED FEE SIMPLE INTEREST AS A TENANT IN COMMON IN AND TO THE COMMON AREA IN
THE MODULE IN WHICH THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 BELOW IS LOCATED EQUAL
TO THE RECIPROCAL OF THE NUMBER OF RESIDENTIAL UNITS LOCATED WITHIN SUCH MODULE, AS
SHOWN ON THE AMENDED AND RESTATED CONDOMINIUM PLAN FOR KENSINGTON AT THE SQUARE,
RECORDED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA, ON
JUNE 13, 2019, AS DOCUMENT NO. 2019-0230474, AND ANY AMENDMENTS OR SUPPLEMENTS THERETO
(COLLECTIVELY "CONDOMINIUM PLAN"), LOCATED IN A PORTION OF LOT 1 OF CARLSBAD TRACT NO.
14-09 UPTOWN BRESSI RANCH, IN THE CITY OF CARLSBAD, COUNTY OF SAN DIEGO, STATE OF
CALIFORNIA, ACCORDING TO MAP THEREOF NO. 16253, FILED IN THE OFFICE OF THE COUNTY
RECORDER OF SAN DIEGO COUNTY, MARCH 9, 2018 ("MAP").
PARCEL 2:
RESIDENTIAL UNIT NO. 8, AS SHOWN AND DESCRIBED ON THE CONDOMINIUM PLAN;
PARCEL 3:
AN EXCLUSIVE EASEMENT TO USE EACH PORTION OF THE ASSOCIATION PROPERTY, IF ANY,
DESIGNATED IN THE CONDOMINIUM PLAN AS BEING AN EXCLUSIVE USE EASEMENT AREA
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE FOR THE PURPOSES
DESCRIBED IN THE DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND
ESTABLISHMENT OF EASEMENTS OF KENSINGTON AT THE SQUARE RECORDED IN THE OFFICIAL
RECORDS OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, CALIFORNIA ON JUNE 13, 2019 AS
DOCUMENT NO. 2019-0230475, AND ANY AMENDMENTS AND SUPPLEMENTS THERETO (COLLECTIVELY,
THE "DECLARATION").
PARCEL 4:
A NON-EXCLUSIVE TEMPORARY EASEMENT FOR PEDESTRIAN AND VEHICULAR ACCESS, INGRESS
AND EGRESS BY GRANTEE OVER, UPON AND ACROSS THE PRIVATE STREETS MORE PARTICULARLY
DESCRIBED AS STREET MODULE A, STREET MODULE B, STREET MODULE C, AND STREET MODULE D,
AS SHOWN ON THE CONDOMINIUM PLAN, AND DESCRIBED IN THAT CERTAIN ACCESS EASEMENT
GRANT DEED RECORDED IN THE OFFICIAL RECORDS OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY ON SEPTEMBER 4, 2019 AS DOCUMENT NO. 2019-0380430, WHICH EASEMENT IS
APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED IN PARCEL 2 ABOVE.
PARCEL 5:
A NON-EXCLUSIVE EASEMENT, IN COMMON WITH OTHER OWNERS, FOR ACCESS, INGRESS AND
EGRESS, IN, TO, OVER, UNDER AND ACROSS CERTAIN PORTIONS OF THE ASSOCIATION PROPERTY
DESCRIBED IN THE DECLARATION, SUBJECT TO THE LIMITATIONS SET FORTH THEREIN, WHICH
EASEMENT IS APPURTENANT TO THE RESIDENTIAL UNIT DESCRIBED ABOVE.
EXHIBIT B
Subordinated 1..oan Documents
(I) Affordable Housing Agreement Imposing Restrictions on Real Property recorded
April 19, 2018 as Document No. 2018-0156905 and First Amendment to Affordable Housing
Agreement Amendment Imposing Restrictions on Real Property recorded July 19, 2019 as Document
No. 2019-0293997 in the Official Records of the San Diego County Recorder's Office.
(2)Promissory Note dated gOVeitibefi- .,202°from Borrower to Subordinated
Lender in the amount of $ 000, 1"c3'
(3)Deed of Trust and Security Agreement dated OGV6443e4e. _,20 Zaby
Borrower for the benefit of Subordinated Lender to secure a loan in the amount of
$ A1IIt DOD. , to be recorded in the Official Records of the San Diego County Recorder' s
Office concurrently herewith.
(4)Resale Restriction Agreement and Option to Purchase dated ,20
between Borrower and Subordinated Lender, to be recorded in the Official Records of the San
Diego County Recorder's Office concurrently herewith.
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