HomeMy WebLinkAboutGurule, Denise Marie; 2001-08-30;2.27vu
II GOVERNMENT CODE 27361.7 II
I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE
DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
Name of the Notary:. ____ J)=--_E_AJ_~--=---~-""""ez __ 'A_/(J_,;;;_~--S.c;;.._ ____ _
Commission Number: L2rz&Ll23 Date Commission Expires: q_;LJ-OZ/
County Where Bond is Filed: ____ 5...;;;;.....;.~..;..;N;__·.....;"J),..__;...:;z::.....:....;;;;£.;,_C9-_0-=---------
Manufacturer or Vendor Number:. __ ___._)J----"'/'0--=-+A-;-=i,"--________ _
(Located on both sides of the notary seal border)
Signature: __ ✓1-"~-------,~f'--~=----+,E/2 __ :7!"-.::..a7c:_..azv=::;;,...__----------~ Firm Name (if applicable)
Place of Execution:_~5_AAJ __ ~ ___ c_CLJ ____ Date: tz::>-30 -2cv (
Rec. Form #R10 (Rev. 7/96)
CARLSBAD HOrvi:EBUYER ASSISTANCE PROGRAM
NOTICE TO BORROWER:
THIS-NOTE IS NOT ASSUMABLE
$ *20 , 000. 00
PROMISSORY NOTE
Secured by Deed of Trust
Carlsbad, California
AUGUST 24 • • 2001
FOR VALUE RECEIVED, the undersigned DENISE MARIE GURULE
_________ (the "Borrower") promises to pay to the City of Carlsbad, a municipal
corporation (the "City"), or order, at the Housing and Redevelopment Department, 2965 ·
Roosevelt Street, Suite B, Carlsbad, California 92008, or such other place as the City may
designate in writing, the principal sum of$ 20, 000. 00 plus Contingent Interest calculated
pursuant to Section 4 below:
1. Purpose of Loan. Borrower is purchasing the Residence located
at 6166 PASEO GRANITO in the City of Carlsbad. This Note evidences a loan made by the
City to the Borrower (the "City Loan") pursuant to the Carlsbad Ho1mebuyer Assistance Program
("CHAP"). The City Loan is in the amount determined• by the City to be necessary for the
Borrower to afford to purchase the Residence making a reasonable downpayment and using
conventional first mortgage financing for the balance of the purchase price not financed by the
City Loan, as amended, · ,
2. Definitions. The terms set forth in t~is Section shall have the
following meanings in this Note.
11fY THAT THIS
THIS IS TO CER TRUE AND
opcuMEN1~: f HE ORIGINAL.
EXACT coP;URE COMPANY
. SIGNA .L .. lb, l . ~,~~~t:J"'i---BY-~-:----
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WF•13·
a. "Appreciation Amoun"t11 shall diean the amount calculated by
subtracting the total original purchase price of lhe Residence paid by the Borrower, which was
*** Dollars($ *** ). from one of the following amounts, as·_applicnble: (i) in>,
the event of a sale of the Re-sidence, the amount received by the Borrower as the sale price of the
Residence, as certified by the Borrower pursuant to Section 13 below; or (ii) in the ev~nt of a ··
prepayment of this Note, a Transfer other than sale of the Residence, or in the event of.a default,
the Fair Market Value of the.Residence; or (iii) in the event a ·creditor acquires .title to the · .
Residence through a deed in lieu of foreclosure, ~ trustee's deed upon sale, or otherwise, the
amount paid for the Residence al a creditor's sale;of the Resirlenr.e. . ·
***ONE HUNDRED SEVENI'Y -FIVE THOUSAND / 175,000 .00
b. "Contingent Interest" shall mean the percentage of the· Appreciatio_n.
Amount set out in _Section 4. ; . "
c. "Fair Market Value" shall b·e detennineiby a re.-il estat~ appraisal .
made by on independent residential appraiser designated by the City .. Jf possible, the appraisal · ·, . · ·
shall be based upon the sales prices of comparable properties sold· in the market-area during th~·
preceding three-month period. The cost of the appraisal shall be paid.by the Borrower. Nothing
in this subparagraph shall preclude the Borrower and the -City from establishing the Fair:Market
Value of the Residenc·e by mutual agreement in lieu of an appraisal. · ·'
d. "First Mortgage" shall mean th~ promissory" note ·ao<l d~ed ot\n;·~t
evidencing and securing the first mortgage loan for the R°esidcnce.
e. . "Residence" shall mean the housing unit and land encumbered by
the deed of tnist executed in connection with this Note.
f. "Transfer" shall mean any sale, assig~mcnt or transfer, volun~ary or
involuntary, of any interest in the Residence. including, but not limited to, a rc·e simple interest. a ·
joint tenancy interest, tenancy in common interest, a life-estate,' a leasehold interest, or an interest
evidenced by a land contract by which possession of the Residence is transferred and the · · ·
Borrower tetains title. Any Transfer without satisfac.tion of the provisions of this Note is
prohibited. A transfer: (i) to an existing spouse who is also nn obligor under the Note;· (ii) by a
Borrower to a spouse where the spouse becomes the co-owner of the Residence; (iii) between
spouses as part of a marriage dissolution proceed in~; (iv) to an ex.isling spouse· or child of the ·
Borrower by device or inheritance following the death of the Borrower;· (v) by the Borrowe:r into
an inter vivos trust in which the Borrower is the beneficiary; or (vi) l>y deed of. trust or imposition
of a lien subordinate to the Deed ofTnist, shall not be considered a Transfer for the purposes of ·
this Note; provided, however, that the Borrower shall continue lo occupy the Residence ns his or
her principal. place of residence and the Borrower'shall provide wrillcn notice of such transfer to
the City pursuant to Section 14 below. : ·
3. Securijy_~~This Note is secured by a second deed of trust dated the
same date as this Note (the "Deed of Trust").
1010'D21111700.3 2
4. Contingent Interest. The Bo~ower'shall pay contingent interest
equal to *** percent~,%) of the Appreciation Am~unt (the "Contingent Interest"). No
interest other than Contingent Interest shall be due hereunder. The Contingent Interest shall be
paid to the City at the time set forth in Section 7(b) below, unless forgiven by the City pursuant to
Section 7(c) below. Borrower acknowledges that the Contingent Interest percentage amount is
equal to the City/Seller Loan principal amount a~ a percentage of the total purchase price of the
Home paid by the Borrower at the time of purchase, multiplied by seventy-five one hundredths
(. 75). Borrower acknowledges that this calculation bf the percentage of the Appreciation
Amount due to the City as Contingent Interest includes a twenty-five percent (25%) discount to
Borrower to account for any capital improvemertts Borrower may make to the Residence.
***TEN PIONI' EIGHTY ONE PERCENT/ 10.81%
5. Term. The Term of this Note shall mean the period commencing
on the date of this Note and expiring on the date fifteen (15) years thereafter.
6. Residency, First Time Homebuyer, and Owner-Occupancy
Requirements: Representations Regarding Requirements. . .
a. The Borrower shall either have lived in the City for a minimum of
sixty (60) days or work in the City, and also be a first time homebuyer. Failure of the Borrower
to comply with these requirements shall be a default under this Note. The Borrower shall provide
written ~ertification to the City that he or she meets these requirements. ·
b. .. The Borrower is required to occupy the Residence as his or her
principal place of residence, and failure by the Borrower to comply with this requirement shall be
a default under this Note. The Borrower shall •be considered as occupying the_ Residence if the ·
Borrower is living in the Residence for at least ten ( I 0) months Ol!t of each calendar year. The.·
Borrower shall provide an annual written certification to the City that the Borrower is occupying
the Residence as his or her principal place of residence.-The Borrower shall not lease the Home
to another party. Any lease of the Residence shall~~ a default under this Note.
c. Borrower hereby certifies that all income, residency or employment,·
and first time homebuyer status infonnation previously submitted to the City is true and correct.
Misrepresentation by Borrower of this information provided to the, City shall be a default under
this Note.
7. Repayment.
a. Repayment of the prin~ipal amount of this Note shall be deferred
for the first five years from the date of this Note.i At the end of five (5) years, the Borrower shall
begin making monthly repayments of principal in: the amount of *** · Dollars
($ 167 .6)7based on· a ten (IO) year principal repayment schedule and due and payable on the first
day of each calendar month commencing JULY 1, 2006 200 _ .
***ONE HUNDRED SIXTY Six [X)LLAR AND SIXTY SEVEN CENTS.
1010\02\111700.3 3
b. The total amount of the principal and any Contingent Interest owed
under this Note shall immediately become due and payable (i) in the event of a default by the
Borrower-under this Note, the Deed of Trust, or the First Mortgage, (ii) on the date Transfer is
made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of
sale, gift, devise, bequest or otherwise, (iii) in the event Borrower ceases to occupy the Residence .
· as his or her principal place of residence; or (iv) ~t the end of the Term of this Note as described
above in Section 5. Failure to declare such amounts due shall not constitute a waiver on the part
of the City ·to declare them due in the event of a ~ubs'equent Transfer.
c. In the event, upon ~xpiration of the Term, (i) no Transfer has
occurred, (ii) Borrower has repaid all principal pursuant to subsection (a) above, (iii) Borrower
continues to owner-occupy the Residence, and (iv) ·Borrower is not in default hereunder or under
the Deed of Trust; the City shall forgive repayment of all Contingent Interest due hereunder.
8. Late Payment Fees. If any payment due hereunder is not paid
within five (5) days from the date such becomes due, Borrower shall pay a reasonable late or
collection charge equal to five percent (5%) of the amount so unpaid. The City and Borrower
agree that the actual damages and costs sustained by.the City due to the failure to make timely
payments would be extremely difficult to measure and that the charges specified in this paragraph
represent a reasonable estimate by Borrower and the City of a fair average compensation for such
damages and costs. Such charges shall be paid by Borrower without prejudice to the right of the
City to collect any other amounts provided to be paid under this Note or the Deed of Trust or,
with respect to late payments, to declare a default.
9. Prepayments. The Borrower may prepay all or part of the balance
due under this Note including principal and Contingent Interest. In the event the entire amount of
principal due under this Note is prepaid, all Contingent Interest, calculated as of the date of
prepayment, shall also be due at the time of prepayment. '
10. No Assumption of Note. The Borrower acknowledges that this
Note is given in connection with the purchase of pro.perty (the "Residence") as part ofa program
of the Agency to assist in the purchase of homes by lower income persons. Consequently, this
Note is not assumable by transferees of the Residence, but is due in full upon Transfer.
11. Maintenance: Taxes· lnsurance. Borrower shall maintain the
Residence in good repair and in a neat, clean and orderly condition. Borrower shall promptly pay
all property taxes due on the Residence prior to any delinquency and shall comply with the
insurance requirements set forth in the Deed ofT'.11st.
12. Refinance of First Mortgage Loan. The outstanding principal and
interest on this Note shall not be due upon prepayment and refinance of the First Mortgage, and
the Deed of Trust shall be subordinated to the refinanced loan, provided that (i) such refinancing
is approved by the City, (ii) the amount refinanced does not exceed the outstanding principat'
balance of the First Mortgage at the time of refinance plus reasonable costs of refinance, and (iii)
1010'02\111700.3 4
the refinance does not result in higher monthly payments o~ the First Mortgage Loan than were
due prior to the refinance.
13. Certification of Purchase Price on Transfer. Upon any sale of the
Residence, the Borrower shall submit to the City at least fifteen (15) days prior to the close of
escrow, a copy of the sales contract and a Vw'.fitt~n declaration, under penalty of perjury, from the
Borrower and the proposed purchaser in a form :acceptable to the City stating the gross sales price
of the Residence. The certification shall also prqvide that the proposed purchaser or any other
party has not paid and will not pay to the Borrower, and the Borrower has not received and will
not receive from the proposed purchaser or any other party, money or other consideration,
including personal property, in addition to what is set forth in the sales contract.
14. Notice to City of Transfers. Borrower shall provide the City with
written notice of any sale, assignment or transfer, voluntary or involuntary, of any interest in the
Residence, including, but not limited to, encumbrance of the Residence with a junior deed of trust ·
or transfer of the Residence to a spouse or trust. Borrower shall provide this notice to the City no
later than fifteen (15) days before the sale, assignment, or transfer occurs, except where the
transfer is by devise or inheritance after death of the Borrower in which event notice shall be
provided within thirty (30) days of the date of the transfer.
15. Default.
a. The Borrower shall be in default under this Note if he or she is in
default under the First Mortgage following the expiration of First Mortgage· cure periods, or if,
after the notice and cure period provided by the City to the Borrower pursuant to the notice and
cure provisions of the Deed of Trust, the Borrower" (i) fails to pay any money when due under this
Note; (ii) breaches. any representation or covenant made in this N9-te in any material respect; or
(iii) br~aches any provision of the Deed of Trust.
b. Upon the Borrower's breach of any covenant or agreement of the
Borrower in this Note or the Deed of Trust, including, but not limited to, the covenants to pay,
when due, any sums secured by the Deed of Trust, the City, prior to acceleration, will send, in the
manner set forth in Section 20, notice to the Borrower specifying: (I) the breach; (2) if the breach
is curable, the action required to cure such breach; (3) a date, not less than thirty (30) days from ·
the date the notice is effective, by which such breach,.if curable, is to be cured and (4) if the
breach is curable, that failure to cure such breach on or before the date specified in the notice may
result i.n acceleration of the sums secured by the Deed of Trust and foreclosure by the City. The
notice will also infonn the Borrower of the Borrower's right to reinstate after acceleration and the
right to bring a court action to assert the nonexistence of default or any other defense of the
Borrower to acceleration and sale. ]
16. Acceleration. Upon the occurrence ofa default under this Note,
the Deed of Trust, or the First Mortgage, the City shall have the right to declare the full amount
of the prindpal along with any Contingent Interest uncler this Note immediately due and payable.
Any failure by the City to pur~u~ its legal and e_quitable remedies upon default shall not constitute
1010\02\111700.3 5
a waiver of the City's right to declare a default and exercise· all of its rights under this Note and
the Deed of Trust. Nor shall acceptance by the City of any payment provided for herein
constitute a waiver of the City's right to require prompt payment of any remaining principal and
interest owed. ·
17. No Offset. The B:orrower hereby waives any rights of offset it now
has or may later have against the City, its successors and assigns, and agrees to make_the
payments called for in this Note in accordance ~ith lhe terms of this Note.
18. Waiver: Attorney Fees and Costs. The Borrower and any
endorsers or guarantors of this Note, for themselves, their heirs, legal representatives, successors
and assigns, respectively, severally waive diligence, pi:esentment, protest, and demand, and notice
of protest, disho~or and non-payment of this Note, and expressly waive any rights to be released
by reason of any extension of time or change in terms of payment, or change, alteration or release
of any security given for the payments hereof, and expressly waive the right to plead any and all
statutes .of limitations as a defense to any demand o·n this Note or agreement to pay the same, and
jointly and severally agree to pay all costs of collection when incurred, including reasonable
attorney fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to
the costs and disbursements allowed by law, such sum as a court may adjudge reasonable as ·
attorneys' fees in such action.
19. No Waiver by the City. No waiver of any breach, default or failure
of condition under the terms of this Note shall be implied from any failure of the City to take
action with respect to such breach, default or failure or from any previous waiver of any similar or
unrelated breach, default or failure.
20. Notices. All notices required in this Note shall be sent by certified .
mail, return receipt requested, or express delivery service with a delivery receipt, or personally
delivered with a delivery receipt obtained and shall be deemed to be effective as of the date shown
on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice
was returned as undeliverable as follows: ··
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To the Borrower:
At the address of the Residence.
To the City:
City of Carlsbad .
Housing and Redevelopment Department
2965 Roosevelt Street, Suite-B :
Carlsbad, CA 92008-2389
Attention: Housing and Redevelopment Director
6
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this Section 20.
21. Joint and Several Obligations. This Note is the joint and several obligation
of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their
successors and assigns.· ·
22. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges,
understands and agrees that the relationship between Borrower and the City is solely that of
borrower and lender, and that the City does not Undertake or assume any responsibility for or
duty to Borrower to select, review, inspect, supervise, pass judgment on, ·or inform Borrower of
the quality, adequacy or suitability of the Residence or any other matter. The City owes no duty
of care to protect Borrower against negligent, faulty, inadequate or defective building or ·
construction or any condition of the Residence and Borrower agrees that neither Borrower, or
Borrower's heirs, successors or assigns shall ever claim, have or assert any right or action against
the City for any loss, damage or other matter arising out of or resulting from any condition of the
Residence and will hold the City hannless from any liability, loss or damage for these things.
23. Indemnity. Borrower agrees to defend, indemnify, and hold the City
harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable
attorneys fees that the City may incur as a direct or indirect consequence of:
a. the making of the loan to Borrower;
b. Borrower's failure to perform any obligations as and when required
by the Note or the Deed of Trust; of
c. the failure at any time of any of Borrower's representations to the
Seller or the City to be true and correct.
24. Termination ofRestrictions. Any legal restrictions on conveyance of the
Residence (as defined in 24 CFR 203 .41 (a)(3)(u)) included in this Note shall tenninate upon
transfer of the Residence by foreclosure, deed in lieu. of foreclosure, or assignment to the
Secretary of the United States Department of Housing and Urban Qevelopment.
25. Controlling Law. This Note shall be construed in accordance with and be
governed by the laws of the State of California.
26. Assignment by City. The City may assign its right to receive the proceeds
under this Note to any person and upon notice to;the Borrower by the City all payments shall be
made to the assignee. · ·
27. Invalid Provisions. If any one or more of the provisions contained in this
Note shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions contained in this ~,. . I .
1010\02\111700.3 7
RECORDING REQUESTED
BY URST AMERICAN TDTIUE
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Carlsbad
City Clerk's Office
1200 Carlsbad Vill~ge Drive
Carlsbad, CA 92008 / ·
A11cnlion: City Clerk ('.:5c,ro ~ ~'7?>1 l_>: _.
No fee for recording pursuant to Or-W svf"/~tl/!J
Government Code Section 27383
: WF #13
{Space above for lie corder's Use)
NOTE TO BORROWER:
THIRD LIEN . nns DEED OF TRUST CONTAINS ' . FY THAT THIS ..
PROVISlONS PROHIDITING ASSUM5Il~~f;1A TRU~ AN.O-. ·.<
. . . oocUM~~ OF THE ORIGINAL_:.:, ..
'. &X~CT co RE coMPAl'iY . . . . ..
DEED OF TRUST 1 • S~GNATU j _ ~ I .. ·t-' . . .
AND SECURITY AGRE~_!iT rvt~~iWl~----c.,
TIIlS DEED OF TRUST AND SECURITY AGREE~NT ("Deed ofTn1st") mad~ as· of
this 24 day of AUGUST 200 I. among DENISE MARIE GURULE .
("Borrower") as truster, and FIRST AMERICAN TITLE CCMPANY** · ("Trustee"). and ·
the City of Carlsbad, a municipal corporation (the ''City"). as beneficiary.
** CALIFORNIA .CORroRATION
The Borrower, in consideration of the promises herei~ recited and the trust hcrei;, cr~ated, ·
irrevocably grants. transfers, conveys and assigns to the Trustee, in tnist. with power of sale, the
properly located in the Cily of Carlsbad, State of California. described in the attached Exhillit "A"'
(the "Property").
TOGETHER with all the improvements now or hereafter erected 011 the property, and all
easements, rights, appurtenances, and all fixtures now· or hereafter attached· to the pro1mrty, 1ill of
which, including replacements and additions thereto, shall be deem~d to be and remain a pnrt of ·
the property covered by th.is Peed of Trust; and
TOGETHER with all articles of personal properly or fixtures now or hereafier·attached to
or used in and about the building or buildings now erected or hereafter to be erected on the ·
Property which are necessary to the complete and comfortable use and occupancy of such
building or buildings for the purposes for which they were or are to be erected, including all other
goods and chattels and personal or.opcrty as are ever used or furnished in ope;ating a building, or·
the activities conducted there~i_-giiniJar to the one herein described a·nd referred to,· and all · · · .-.
renewals or replacements thereof or articles in substitution therefore, whether or not the same are, :
or shall be attached to said building or buildings in any manner; and all of the foregoing, together ·
with the Property, is herein referred to as the "Security"; ·
; 1
To have and to hold the Security together with acqui_ttances to the Trustee, its successors
and assigns forever; · ·
TO SECURE t~ the City the repayment of the sums evidenced by a pro~is.sory· note
executed by the Borrower to the City dated.i\UGUST 24 • ~~!)], in the amount of • ·
SIXTY THOUSAND Dollars ($60,000 .,00) (tbe "Note");. . · .. · _ . _ · : ,·
TO SECURE to the City the payment of all ·other sums, with i~terest thereon,. advanced in
accordance herewith to protect the security oftbis Deed ofTrust;-and t~e perform~nce of the
covenants and agreements of the Borrower herein contained; and ·
TO SECURE the performance of any obligations of Borrower in any other agreements
with respect to the financing of the Property or the Security the failure of_whicl:i 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 ofTrust, :
the Security is encumbered only by th~:iffed oftru.st executed by the Borrower_ in C<?nnection
with a loan made to the Borrower by · or its successoi:s and assigns . ·
(the "First Lender"), datedAUGUST 24 , 2001, exec~*i~Y the Borrower in favor ofFirst .·
Lender, and recorded in the County of San Diego on . · 2001, and assigned ·
Recorder's Serial No. ____ (the "First Lender Deed of Trust"), securing a promissory note
executed by the Borrower in favor of the First Lender ("First Lender.Note"), to assist 'in the
purchase of the Property. The Borrower agrees to warrant and defend generally the'title to the
Security against all claims and demands, subject to any declarations, easements or restric_tions
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 tenn "First Lender"_ shall include all
successors and assigns of the First Lender.)
*** WELLS FARGO HOME MORTGAGE, INC.,/***~RECORDED CONCURRENTLY:
2. Repayment of Loan. The Borrower will promptly repay, when due, the principal
and interest required by the Note. The Note contains the following provisions concerning
repayment of the loan under certain conditio~s:
No Assumption of Note. The Borrower acknowledges that this Note is given in
connection with the purchase of property (the "Residence") as part of a· program of the City to · .
assist in the purchase of homes by lower income persons. Consequently, this Note is not ·
assumable by transferees of the Residence, but is due in full upon a Transfer as defir1ed in the.
Note.
3. First Lender U)a1t. 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. Owner-Occupancy Required. The Borrower shall occupy the Property as his or -
her principal place ofresidence. The Borrower shall be considered as occupying the Property if . . .
the .tlorrower 1s Jiving in the unit tor at least ten (10) months out of each calendat· year. ·The
Borrower sliall provide an aMual written certification to the City that the Borrower is occupying
the Property as his or her principal place of residence. . 1
5. Charges: Liens.· The Borrower will pay all truces, assessments and other charges,
fines and impositions attributable to the Security;which may attain a priority senior to this Deed of·.
Trust, by the Borrower making any payment, when due, directly to the payee thereof. The · · ·
Borrower will promptly furnish to the 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 senior to this Deed of Trust; provided, that the Borrower will not be required
to discharge the lien of the First Lender Deed of Trust or any other lien described in this
paragraph so long as the Borr.ower.will agree in writing t<;> the payment of the obligation secured
by such lien in a maMer 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. Hazard lnsurance. The Borrower will keep the Security insured by a standard fire .
and extended coverage insurance policy in at least an amount equal to the replacement cost of the
Security, but in no event less than the amount necessary to prevent the Borrower from becoming
a co-insurer under the terms of the policy.
The insurance carrier providing this insurance shall be licensed to do business in the State
of California and be chosen by the Borrower subject to approval by the City; provided, that such
approval will not be withheld if the insurer is also approved by the First Lender, the Federal Home
Loan Mortgage Corporation, Fannie Mae, Freddie Mac, the United States Department of
Housing and Urban Development, the United States Department of Veterans Affairs; or
successors thereto.
All insurance policies and renewals thereof will be in a form acceptable to the City and will
include a standard mortgagee clause with standard lender's endorsement in favor of the holcf er of
the First Lender Note and the City as their interests may appear and in a fonn acceptable to;the
City. The City shall have the right to hold, or cause _its designated agent to hold, the policicf; and
renewals thereof, and the Borrower shall promptly furnish to the City, or its designated ageht, the
original insurance policies or certificates of insurance, all renewal notices and all receipts of paid
premiums. In the event ofloss, the Borrower will give prompt notice to the insurance carrier and
the City or its designated agent. The City, or its designated agent, may make proof of loss if not
made promptly by the Borrower. The City shall receive thirty days advanee notice of cancellation
of any insurance policies required under this sectipn.
Unless the City and the Borrower otherwise agree in writing, insurance proceeds, subject
to the rights of the First Len~~r, will be applied to restoration or repair of the.Security damaged,
provided such restoration or teg~fr is economically feasibl~ 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 ofTrust would be impaired, the insurance proceecis 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 des'ign~ted agent, within thirty (30) days from the date notice is
3
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 oy this Deed of Trust.:, . , · .-, : . .. ,',. .
If the Sec~rity is acquired by the Cify,. all;righ~, ~itle:·~nd i~terest.o/t~~,g~~o~er i~.a-~d ~6· :;
any insurance pollcy anq in and to the proceeds t:hereof resulting from damage to. the ·security · : • · '.
prior to the sale or acquisition will pass to the City to the extent of the slims secured qy this Deed ·
of Trust immediately prior to such sale or acquisition subject to the rig~ts -ofthe First Lender., ,
7. Preservation and Maintenance of Security. The Borrowe~ will keep 'the Security in
good· repair and will not commit waste or permit impairment or deterioration of the Security .. · · ·
·. . .. '· . . .
8. Protection of the City's Security. If the Borrower fails to perform the coven.ants .
and agreements contained in this Deed of Trust, the First Lender Note, the First Lender Deed of.'
Trust, or if any action or proceeding is commenced which materially' a:ffects _the City's interest in
the Security, including, but not limited to, default under the First LenderDe'ed ofTnist, the First
Lender Note or any other deed of trust encumbering the Property, em1nent domain, insolve·ncy, ,: '
code enforcement, or arrangements or proceedings involving a bankrupt or decedent, then the · .. . ·
City, at the Gity.'s option, upon notice to the Borrower, may make such'appearimces, disburse .. · · .. ·.
such sums and take such action as it determines necessary to protect the.City•s·iiiterest, 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.t/1ereon; ·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,frorn the date of -.
disbursement at the lesser of (1) ten percent (10%) per annum or (2) the highest interest rate
permissible under applicable law. Nothing contained. in this paragraph will require the City io .··• ....
incur any expense or take ~ny action hereunde~. . : .. ,.
9. Ins1>ection. 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 i~ exercising .
any right or remedy will not be a waiver of the exercise' of any such right or.remedy. The
procurement of insurance or the payment of taxes or. other ii ens or charges by the Ci°ty will not be ·
a waiver of the City's right to accelerate the maturity of_ the indebtedness secured by this Deed o(
Trust. · . ·
11. Remedies Cumulative. AJl remedies provided in this-De~d of Trust ar·e distinct _arid ·.
cumulative to any other right or remedy under this Deed of Trnst or any other documeint, or
afforded by law or equity, and may;be-exercised concurrently, independently or· successively.
12. Successors and Assigns Bound. The covenants and agr:eements her~in contained .
shall bind, and the rights hereunder shall inure to, the respective successors and assi-gns of the City
and the Borrower subject to the provisions of this Deed of Trust. ·
13. Joint and Several Liability. Al! covenants and agreements of the Borrower shall b~ : .-
joint and several. \ · ,
14. ~-Except for any notice required under applicable law to be giv~n in anoth~r-•
manner, all notices required in this Deec!. ofTnist shall be sent by ccrtifie·d mail, retti111 receipt
requested or express delivery service with a delivery receipt, or persona!Jy delivered with a· · · _ ,
delivery receipt obtained, and shall be deemed to be effective as of the date shown on the delivery
receipt as the date of delivery, the date delivery was refused, or the date the notice was returned .,
as undeliverable as follows: · · ·
To the Owner:
At the address of the Borrower.
To the City:
City of Carlsbad
Housing and Redevelopment Department
Attn: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
The parties may subsequently change addresses by providing written notice of the change_
in address to the other parties in accordance with this section. ·
. .
15. Controlling Law. This Deed of Trust shall be construed.in accordance with and be
governed by the laws of the State of California. :
16. Invalid Provisions. If any one or more of the provisions contained in this Deed of · ·
Trust or the Note shall for any reason be held' to be invalid, illegal or unenforceable in any respect, ,
then such provision or provisions shall be deemed severable· from the remaining. provisions, and
this Deed of Trust and the Note shall be construed as if such invalid, illegal or unenforceable
provision had never been contained in this Deed of Trust or th~ Note. ·
17. Captions. The captions and headings in this Deed of Trust are for convenience
only and are no: to be used t_o _interpret or define the provisions hereof. .
I 8. Default: Remedi~s. Upon the Borrower's breach of any covenant ·or agreement of '
the Borrower in this Deed of Trust, including, but-not limited to, the covenants to pay, when due,
any sums secured by· this Deed of Trust, the City, prior to acceleration, will send, in the manner
set forth in Section 14 of this Deed of Trust, notice lo 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 ·. ·
5
i
I I.
1 •
(30) days from the date the notice is_ effective as· set forth in Section 14 of th.is 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 th.is Deed ofTrust and sale of the Security. Notice shall be effective as ofthe 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 Bofrower's
right to reinstate after acceleration and the right to bring a court action to assert the nonexistence
of default or any other defense ofthe Borrower to acceleration and sale. If the breach is not
curable or is not cured on or before the date spe~ified in the notice, the City~ at the Cfry's option,.
may: (a) declare all of the sums secured by this Deed of Trust to be immed_iately due. and payable
without further demand and may invoke the power of sale and any other,remedies petmitted 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) afld of any cif ·
the Security, in its own name or in the name of the Trustee, and do a_ryy 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 declarati~n ·of ·
default and demand for sale, pursuant to the provisions for notice of sale found at California Ci'!'il .
Code Sections 2924, et~-, 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 ~d expenses incurred ·in pursuing
the remedies provided in this paragraph, including, but not limited to, reasonabl~ attorney's fees.
19: Acceleration. Upon the occurrence of a default under the Nqte, 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 imn:iediately due
and payable. Any failure by the City to pursue its legal and equitable ren,edies upon default.shall
not constitute a waiver of the City's right t~ declare a default and exercise all 'of its rights under: '
the Note and this Deed of Trust. Nor shall acceptance by the-City of any payment provided for in
the Note constitute a waiver of the City's right to require prompt payment of any remaining ·
principal and interest owed.
20. Borrower's Right.to Reinstate. Notwithsfan.ding the City's acceleration of the
sums secured by this Deed ofTrust, the Borrower will have the right to have any pro<,eedings
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 th.is Deed of Trust if: (a) the Borrower pays City all
sums, if any, wruch would be then due under this Deed of Trust as if acceleration under the Not~
6
has occurred; (b) the Borrower cures all breaches of any other covenant~ or agreements of the · .
Borrower contained in this Deed of Trust; (c) the Borrower pays all reasonable· expenses incurred
by City and the Trustee in enforcing the covenants and agreements of the Borrower contained in
this Deed of Trust, and in enforcing the City's and the Trustee's remedies, including, but not
limited to, reasonable attorney's fees; and (d) the Borrower takes such action as City may
reasonably require to assure that the lien of this 0eed of Trust, City's interest in the Sec~uity and ·.
the Borrqwer'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 for~e a9d effect as if no acceleration had' occurred.
21. Reconveyance. Upon payment or forgiveness of all sums secured by this Deed of
Trust, the City will request the Trustee to reconvey the Security and will surrender this Deed of
Trust and the Note to the Trustee. ·The Trustee will reconvey the Security without warranty and
without charge to the person or persons legally entitled thereto.· Such person or persons will pay
all costs of recordation, if any. · ·
22. Substitute Trustee. The City, at the City's option, may from time to time remove
the Tmstee and appoint a successor trustee to any trustee appoint~d hereunder. The successor
trustee will succeed to all the title, power and duties conferred upon the Trustee herein and by
applicable law.
23. Subordination to First Mortgage. Notwithstanding artY other provision hereof,
the provisions of this Deed ofTrust shall be subordinate to the lien'ofthe First Lender Deed of·
Trust and shall not impair the rights of lhe First Lender, or the First Lender"s successor or a.ssign, .
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 foreclosµre 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 ofTrnst to the Secretary of the United States Department. of
Housing and Urban Development (the "Secretary"), this Deed ofTrust:shall be forever tenninated
and shall have no further effect as to the Property or any transferee thefeafier; provided, however,
if the holder of such First Lender Deed of Trust acquired titl.e to the Property pursuant to a deed
or ·assignment in lieu of foreclosure, or if the First Lender's Deed ofT~st 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 beeri given written notice of default ·
under such First Lender Deed of Trust and (ii) the City shalfnot have ctlred or commenced to
cure the default within such 3O-day period and given its finn'commitme~t 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. ·
1
to the Residence through a deed in lieu of foreclosure, a trustee'~ deed 1;1pon sale, _or otherwise,
the amount paid for the Residence at a creditor's sale of the Residence. · •
b. "Contingent Interest" shall m~an the pi r~,entage of ihe Appre~iatio~ .
Amount set out in Section 4.
! . . . . ' . . . . ~ . . . . ' . . : : . > .. !
c. "Fair Market Vatu·e" shall be determirieci by a real estate.-appraisaf1 ':
made by an independent resid~tial appraiser d~ignated by the City. If po_s.sible, the i;ppraisal . ·' ·'.:
shall be based upon the sales prices of comparable properties sold in the mar~et area during the · .
preceding three-month period. The cost of the llppraisal shall be paid by the Borrower. Nothing
in this subparagraph shall preclude the Borrower and the City from establ_ishing tne Fair Market
Value of the Residence by mutual·agreement in lieu of an appraisal. . · ·· · ··.-·
d. "First Mortgage" shall mean the promiss~ry n~t~·and deed oftrust.
evidencing and securing the first mortgage loan for the Rcsid~nce.
. .
e. "Residence" shall mean the housing unit and,land'ericumbered by
the deed oftnast executed in connection with this Note. · ·: · • · · '.,
f. "Transfer" ~hall mean any sale, assignment or trarisfer, voluntary or.
involuntary, of any interest in the Residence, including, but not limited to, a ·ree simple interest, a '.
joint tenancy interest, tenancy in common interest, a life estate, a leasehold interest, or.:an interest ···
evidenced by a land contract by which possession of the Residence is transfert'ed and the . ·· . ··
Borrower retains title. Any Transfer without satisfaction of the provisions of this Note is ..
prohibited. A transfer: (i) to an existing spouse who is also an obligot under the Note; (ii) by a
Borrower to a spouse where the spouse becomes the co-owner of,the Residence; (iii) between. .
spouses as part of a marriage dissolution proceeding; (iv) to'an existing spOU$e or child of the
Borrower by devise or inheritance following the death of the Borrower; (v) by the Borrower into .··
an inter vivos trust in which the Borrower is the beneficiary; or (vi) byldeed oftnist or imposition .
of a lien subordinate to the Deed of Trust, shall not be considered a '):ransfer for t~e purposes of. .
this Note; provided, however, that the Borrower shall contiriue·to occupy the Residence as his or
her principal place of residence and the Borrower shall provide written notice of such transfer tci
the City pursuant to Section 14 below. · : ·
3. Security. This Note is secured by a second deed of trust dated the same
date as this Note (the "Deed of Trust").
4. Contingent Interest. The Borrower shall pay contingent interest e·qual to
*** percent ( *** % ) ("Contingent Interest Percentage Amount") (seller to insert ·
appropriate percentage which shall -in no event exceed (SO¾)] of the Appreciation Amount
(the "Contingent Interest"). 'No ipterest other than Contingent Interest shall tie due hereunder:
The Contingent Interest shalfbe-paid to the City at the time set forth in Section 7(a) below, unless
forgiven by the City pursuant to Section 7(b) below.· Borrow.er acknowledges that the Contingent
Interest Percentage Amount is equal to the City/Seller Loan principal amount as a percentage of
the total purchase price of the Residence paid by the_ Borrower at the time of purchase, multiplied
by seventy-five one hundredths (.75). Borrower acknowledges th~t this calculation of the
***THIRTY FDUR POINT TWENTY NINE/ 34.29%
O,V02J99 2
percentage of the Appreciation Amount due to the City.as Contingent Interest includes a t~~~ty-•
five percent (25%) discount to Borrower to. account for any capital improvements _Borrower: may .
make to the Residence_. . . ' .. . . . . .
' . 5. Term. The Tenn of this Note shall mean the period con:imendng on the
date of this Note and expiring on the date thirty (~0) years thereafter. · ··. · · · · ~ · ; ·
6. Owner-Occupancy Required: Representations Regarding Income.
a. The Borrower is required io occupy the Residence as his or her
principal place of residence, and failure by the Borrower to comply with this requirement shall be
a default under this Note. The Borrower shall be considered as occupying the Residence if the, _
Borrower is living in the Residence for at least ten (10) months out_ of each calendar year. The ::•,
Borrower shall provide an annual written certification to the City that the Borrower is occupying· ·
the Residence as his or her principal place of residence. The Borrower shall· not lease the : · ·
Residence to another party. Any lease of the Residence shall_b_e a _default under this Note.
b. Borrower hereby certifies that all income information• previously .
submitted to the Seller and/or the City is true and correct. Misrepresentation by Bo,rrower of, .. ·:.
income information provided to the Seller and/or the City shall be a default under this Note._ . •
7. Repayment.
a. The total amount of the principal and any Contingent I_nterest owrd.
under this Note shall immediately become due and payable (i) in the event of a default by the .· • ...
Borrower under this Note, the Deed ofTrust, or the First Mortgage, (ii) on the dafe Transfer-is :
made whether voluntarily, involuntarily, or by operation of law and whether by deed, contract of·.
sale, gift, devise, bequest or otherwise, (iii) in the event Borrower ceases to occupy the Residence ,
as his or her principal place of residence; or (iv) at the end of the Term of this Note ·as described · .
above in Section 5. Failure to declare such amounts due shall not constitute a waiver on the part
of the City to declare them due in the event of a subsequenfTransfer. · · .. -· · ·
b. ·1n the event, upon expiration of the Term;: (i)' no Transfer ha;. ; · .. · .
occurred, (ii) Borrower has repaid all principal pursuant to subsection (a) above. (iii) Borrower ·. ·
continues to owner-occupy the Residence. and (iv) Borrower is not : in ~efau\t hereunder·or tinder.
the Deed of Trust, the City shall forgive repayment of all Contingent I!]terest due hereunder.. '
8. Late Payment Fees. If any .payment d~e here~nder is not pai~ w~th.in fiv~ -~-.
(5) days from the date it is due, Borrower shall pay a reasonable late or coHection .charge eq.ual to
five percent (5%) of the amount so unpaid. The City•and Borrower agree th~t the actual damages·
and costs sustained by the City due to the failure to make timely payments would be e~tremely . · :
difficult to measure and that the cbarges specified in this paragraph represent a reasonable .
estimate by Borrower and the City of a fair average compens·ation fo~ su~h damages and costs.
Such charges shall be paid by Borrower withou·t prejudice to the right of the City to collect any .
other amounts provided to be paid under this Note or: the Deed of Trust or, with respect to lat_e
payments, to declare a default. · ·
04/02199 3
9. Prepayments. The Borrower may prep~y all or part of the balance ·due .
under this Note including principal and Contingent Interest.. In the event .the entire amount of
principal due under this Note is prepaid, all Contingent Interest, calculated as_ oft~e date ~f
prepayment, shall also be due at the time of prepayment. • · ··
I 0. No Assumption of Note. ;fhe Borrower acknowledges. that this Note i~ ·. ·
given in connection with the purchase of property (the "Residence") as part ofa program of the·.
City to assist in the purchase of homes by lower income persons. _Consequently, this Note is not .
assumable by transferees of the Residence, but is;due i_n full .upon Transfer.-· : . . . ....
l I. Maintenance: Taxes: Insurance. Borrower shall maintain the Residence in
good repair and in a neat, clean and orderly condition. Borrower shall promptly ·pay all property
taxes due on the Residence prior to any delinquency and shall comply: with the insuran~e : ·
requirements set forth in the Deed of Trust. · ·. · :
. ·,
12. Refinance of First Mortgage Loan. The outstanding principal and interest
on this Note shall not be due upon prepayment and refinance of the First Mortgage, and the Deed .• ·
of Trust shall be subordinated to the refinanced loan, provided that (i) such refinancing·is ·
approved by the City, (ii) the amount refinanced does not exceed the outstanding principal
balance of the First Mortgage at the time of refinance plus reasonable costs.of refinance, and (iii) ··
the refinance does not tesult in higher monthly payments on ·the First Mortgage Loan than were
due prior to the refinartce. ' · · ·
13. Certification of Purchase Price on Tr~nsfe~. Upoi1 any sale of the:
Residence, the Borrower shall submit to the City at least fifteen (15) days pnor' to the close of
escrow, a copy of the sales contract and a written declaratioi1, under penalty of perjury, from the: ..
Borrower and the proposed purchaser in a form acceptable to the City stating the gross sales price: :
of the Residence. The certification shall also provide that the proposed purchaser or any other
party has not paid and will not pay to the Borrower, and the Borrower has no_~ receive<t and will
not receive from the proposed purchaser or any other party,money or other consideration, ·. ·.
including personal property, in addition to what is set forth in the sales contract. ·
14. Notice to City of Transfers. Borrower shall provide the Cit)' V:..ith.written
notice of any Transfer of the Residence or of any interest in the R.esidence (including, but not·
limited to, encumbrance of the Residence with a junior deed of trust or transfer of the Residence
to a spouse or trust). Borrower shall provide this notice to the City no later than fifteen (15) days·
before the Transfer occurs, except where the Transfer is by devise or inheritance after death of the
Borrower in which event notice shall be provided within thirty (30) day_s of the date of Transfer.
15. Default.
-a. The Borrower shall be in defa.ult under:this Note if lie or she'fa in _._.
default under the First Mortgage following the expiration ofFirst'Mortgage cure periods, or if, ':
after the notice and cure period provided by the City to the Borrower pursuaritto the:notice and:
cure provi_sions of the Deed of Trust, the Borrower (i) fails (o pay any money ·whe_n due under this ·
04/02/1)9 4
Note; (ii) breaches any representation or covenant made in ihis Note in any material respect; or
(iii) breaches any provision of the Deed of Trust.
b. Upon the Borrower's breach of any covenant or agreement. of the
Borrower in this Note or the Deed of Trust, including, but not limited to, the covenants to pay,·
when due, any sums secured by the Deed ofTru$t, the City, prior to acceleration, will send, in the
manner set forth in Section 20 notice to the Borrower specifying: (1) the breach; (2) if the breach
is curable, the action required to cure such breach; (3) a date, not less than thirty (30).days from ·
the date the notice is effective, by which such brbach, if curable, is to· be c_ured and ( 4) if the · ·
breach is curable, that failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by the Deed of Trust and foreclosure by the City. The
notice will also inform the Borrower of the Borrower's right to reinstate. ·after acceleratioQ and the ·
right to bring a court action to assert the non~xistence of default or any other defense of the :
Borrower to acceleration and sale.
16. Acceleration. _Upon the occurrence of a default under this Note, the Deed_
of Trust, or the First Mortgage, the City shall have the right to declare the full 'amount of the ·
principal along with any Contingent Interest under this Note immediately due and payable. Any··
failure by the City to pursue its legal and equitable remedies upon default shall not constitute a
waiver of the City's right to declare a default and exercise all of its rights under this Note and the
Deed of Trust. Nor shall acceptance by the City of any payment provided for herein constitute a
waiver of the City's right to require prompt payment of any remaining principal and interest owed.
17. No Offset. The Borrower hereby waives any rights of offset it now has or:
may later have against the City, its successors and assigns. and agrees to make.the payments
called for in this Note in accordance with the terms of this Note.
I 8. Waiver: Attorney Fees and Costs. The Borrower ind any endorsers or
guarantors of this Note, for themselves, their heirs, Jegal·representatives, successors and assigns·,
respectively, severally waive diligence, presentment, protest, and demand, and notice of protest;
dishonor and non-payment of this Note, and expressly waive any rights to be released by reason
of any extension of time or change in terms of P<\Yment, or change, alteration or release of any
security given for the payments hereof, and expressly waive .the right to plead any, and all statutes
of limitations as a defense to any demand on this Note or agreement to pay the same, and jointly
and severally agree to pay all costs of collection when incurred, including reasonable attorney
fees. If an action is instituted on this Note, the Borrower promises to pay, in addition to the costs
and disbursements allowed by Jaw, such sum as a court may adjudge reasonable as attorneys' fees
in such action. · ·
19. No Waiver by the City. No waiver of any breach, default or failure of .
condition under the terms of~s}fote shall be implied from any failure ofthe"City _to ta.kc action .·
with respect to such breach, default or failure or from any previous waiver of any similar or
unrelated breach, default or failure. · ·
. 20. Notices. All notices required in this Note shall bei sent by certified_ mail, ~ .
return receipt requested, or express delivery servic~ with a delivery receipt, or personally_·: . ,
l
,!)4,'02/99 5
delivered with a delivery receipt obtained and shall be deemed to be effective as of the date shown
on the delivery receipt as the date of delivery, the date delivery was refused, or the date the notice
was returned as undeliverable as follows: · ·
To the Borrower:
At the address of the Residence.
To the City:
City of Carlsbad
Housing and Redevelopment Department
Attention: Housing and Redevelopment Director
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008-2389
The parties may subsequently change addresses by providing written notice of the change
in address to the other parties in accordance with this Section 20.
21. · Joint and Several Obligations. This Note is the joint and several obligation
of all makers, sureties, guarantors and endorsers, and shall be binding upon them and their
successors and assigns. ·
22. Nonliability for Negligence, Loss, or Damage. Borrower acknowledges;
understands and agrees that the relationship between Borrower and the City is solely that of
borrower and lender, and that the City does not undertake or assume any responsibility for or
duty to Borrower to select, review, inspect, supervise, pass judgment on, or inform Borrower-of
the quality; adequacy or suitability of the Residence or any other matter. The City owes no duty .
of care to protect Borrower against negligent, faulty, inadequate _or defective building or . ·
construction or any condition of the Residence and Borrower agrees that neither Borrower, or
Borrower's heirs, successors or assigns shall ever claim, have or assert a~y right or action against·
the City for any loss, damage or other matter arising out of or resulting from any condition of the
Residence and will hold the City hann!ess from any liability,_loss or damage for these things.
23. indemnity. Borrower ~grees to defend, indemnify, and h~jd th~ City · ·
harmless from all losses, damages, liabilities, claims, actions, judgments, costs, and reasonable .
attorneys fees that the City may incur as a direct or indirect consequence of:
a. the making of the loan to Borrower;
b. · -130.rrower's failure to perform any obligations as and when required
by the Note or the Deed of Trost; or
c. the failure at any time of any of Borrower's ·representations to the
Seller or the City to be true and correct.
04/()mg 6