HomeMy WebLinkAboutSilvas, Sabrina Mandujano; 2019-11-20;R~_cordJng Requested by:
F"N.TG Huilder Services
RECORDING REQUESTED BY:
FNTG Builder Services
Escrow No.: SHK60118-006-AM4
Title No.: SHK60118-006-KC
WHEN RECORDED MAIL DOCUMENT AND
TAX STATEMENT TO:
City of Carlsbad
City Clerks Office
1200 Carlsbad VIiiage Drive
Carlsbad, CA 92008
APN: 213-262-22-00 WOP
DOC# 2019-0610620
111111111111 lllll 111111111 111111111111111111111 Ulll 111111111111111111
. Dec 27, 2019 04:59 PM
OFFICIAL RECORDS.
Ernest J. Dronenburg, Jr.,
SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00)
. PCOR: N/A
PAGES: 36
SPACE ABOVE THIS LINE FOR RECORDER'S USE
The undersigned declares exemption under the foflowfng:
~ Exempt from fee per GC 27383 ; 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 record4'
Exempt from fee per GC 27388.1 (a) (2);
recorded concurrently in connection with
a transfer subject to the imposition of
documentary transfer tax
DEC~ARATION OF RESTRICTIVE COVl;NANTS REGARDING RESTRICTIONS
ON TRANSFER OF PROPERTY, OCCUPANCY RESTRICTIONS, REFINANCING
RESTRICTIONS, AND OPTION TO PURCHASE
Title Page of Document to Record
REC00059 (OSI Rev. 4/5/18)
DOCUMENT TITLE
Escrow No.: SHK70057-006-AM4
Recording Requested by: .
FNTG Builder Services
S ff K to o I I f--oD ~ fto/1< c_
Recording requested by and
when recorded mail to:
City of Carlsbad
City Clerk's Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
~ No fee for recording pursuant to ~
Government Code Section 27383 ~
DECLARATION OF RESTRICTIVE COVENANTS REGARDING RESTRICTIONS ON
TRANSFER OF PROPERTY, OCCUPANCY RESTRICTIONS, REFINANCING
RESTRICTIONS, AND OPTION TO PURCHASE
(City of Carlsbad Home buyer Program)
Owner: Sabrina Mandujano Silvas
Address of Property: 6034 Colt Place #201
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 ~ day of NoVf4'll-, 20 f.J_,
by and between the City of Carlsbad a municipal corporation ("City"), and Sabrina Mandujano
Silvas, A Single Woman ("Owner").
RECITALS
A. The City has developed a second mortgage program designed to assist qualified
low or moderate income households purchase their homes located within 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 Three Hundred Thirty Thousand Eight Hundred Four Dollars ($330,804) 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 term "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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D. The "Original Affordable Purchase Price" of the Property is One Hundred Fifty Nine
Thousand One Hundred Ninety Six Dollars ($159,196). 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(l).
(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" -l0C.
(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 1 0C.
(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 I.
(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:
(2) Exhibit B:
(3) Exhibit C:
(4) Exhibit D:
(5) Exhibit E:
(6) Exhibit F:
Legal Description of Property
Form of Owner Occupancy Certification
Form of Owner's Notice oflntent to Transfer
Form of City Response Notice
Form of Owner Acknowledgement of City Response
Notice
Fonn 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 Home buyer 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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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 tennis 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 home buyer education class offered by
The Framework Homeownership 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), nan1ing 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
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to occupy the Property as his or her principal place of residence ( except where the transfer occurs
pursuant to subsection (iii) or (iv) above, in which event the transferee shall 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 INTENDED TRANSFER
A. In the event the Owner intends to transfer (including without limitation all
"Transfers" as defined in Section 7) or vacate the Property, the Owner shall promptly give the
City written notice of such intent (the "Owner's Notice oflntent 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:
(I) 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.
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B. Following delivery to the City of the Owner's Notice oflntent to Transfer, the
Owner shall prepare the Property for sale, as follows:
(1) within thirty (30) days of delivery of the Owner's Notice oflntent 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.
l 0. CITY RESPONSE TO OWNER'S NOTICE OF INTENDED TRANSFER
City shall respond in writing (the "City Response Notice") to the Owner's Notice oflntent
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 oflntent 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 oflntent 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
infomrntion: (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
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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
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 oflntent to Transfer between the
fifteenth (15th) year of the Tenn 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 oflntent 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 Eighty Six Thousand
Three Hundred Dollars ($86,300).
(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 detern1ined 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 circwnstances include but are not limited to: (1)
where the parties wish to detennine 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 detem1ined 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 fonn of disclosure statement
summarizing the terms of the buyer's occupancy and resale restriction agreement with option to
purchase. A proposed purchaser ("Proposed Purchaser") who the Owner believes will qualify as
an Eligible Purchaser shall be referred to the City for an eligibility determination. If the
Proposed Purchaser qualifies as an Eligible Purchaser the City will also determine if such
Eligible Purchaser is eligible for City housing-related financial assistance that may be available
at the time of resale.
B. Eligible Purchaser. A Proposed Purchaser shall qualify as an "Eligible Purchaser"
if he or she meets the following requirements, as determined by the City:
(1) Income Eligibility. The combined maximum income for all household
members of the Proposed Purchaser shall not exceed the income level designated by the City in
the City Response Notice.
(2) Intent to Owner Occupy. The Proposed Purchaser shall certify that he or
she will occupy the 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 fonnula 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
12
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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 infom1ation 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 perfonnance of Owner's obligations under this
Agreement shall cause irreparable hann to the City. Therefore, Owner agrees that the City is
entitled to equitable relief in the fonn of specific perfonnance 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 tenns 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 hannless 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).
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,
15
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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.
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
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Deed of Trust in the event of default under the First Lender Deed of Trust by the Owner. Such
remedies under the First Lender Deed of Trust include the right of foreclosure or acceptance of a
deed or assignment in lieu of foreclosure. After such foreclosure or acceptance of a deed or
assignment in lieu of foreclosure, this Agreement shall be forever terminated and shall have no
further effect as to the 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 fim1 commitment to complete the cure in the form and
substance acceptable to the First Lender. Owner agrees to record any necessary documents to
effect such termination, if applicable.
28. REFINANCE OF FIRST LENDER LOAN
The outstanding principal on the City Note shall not be due upon prepayment and
refinancing of the First Lender Loan, and this Agreement and the City Deed of Trust shall be
subordinated to the refinanced First Lender Loan, provided that: (i) such refinancing is approved
by the City; (ii) the amount refinanced does not exceed the outstanding principal balance of the
First Mortgage at the time of refinance plus reasonable costs of refinance; and (iii) the refinance
does not result in higher monthly payments on the First Lender Loan than were due prior to the
refinance. Mortgage loans or equity lines of credit iunior 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 Home buyer 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.
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.
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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(s):
Address of the Property
To the City:
City of Carlsbad
Housing and Neighborhood Services
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.
18
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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 tenns 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).
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.
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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 are 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
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.
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1010/17/2032990.2
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 CONS ID ERA TION 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 HA VE NO RESTRICTIONS. NOTWITHSTANDING SUCH LIMITATIONS AND
RESTRICTIONS IMPOSED ON THE PROPERTY PURSUANT TO THIS AGREEMENT,
OWNER DESIRES TO OBTAIN THE HOMEBUYER LOAN AND HA VE THE PROPERTY
SUBJECT TO THIS AGREEMENT.
(Initials of Owner)
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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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:
Name:
Its:
OWNER:
(Proper notarial acknowledgment of execution must be attached)
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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
before me Morgen Fry, Notary Public '-------------------(insert name and title of the officer)
personally appeared ~Cl -Z.... b D t---U.... "2..._.
who proved to me on the basis of satisfactory evidence to be the person~) whose name~) ishtre
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
hi-s/her/their authorized capacity(tss), and that by ht./her~ir signaturecs) on the instrument the
person('&), or the entity upon behalf of which the person(~ acted, executed the instrument.
I certify under PENAL TY 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 z
San Diego County ~
Commission# 2268605 -
My Comm. Expires Dec 24, 2022
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 Californi~ L
Coun~of ~~
On ___ /~~.__'Ii_, __ ~ ____ before me, RIK THOMAS, Notary Public
(insert nam~ and title of the officer)
b,,,,ja l'U,,'4Ju tt"1tJ C./v'6 personally appeared ---+-+------------<,__ ___ 0_ ' ____________ _
who proved to me on the ba s of satisfactory evidence to be the person(~ whose name(~ isf.afe-
subscribed to the within instrument and acknowledged to me that be{she/~xecuted the same in
bis/her/tbeir""authorized capacity_oes), and that by t.uslher/tAetrsignature(~ on the instrument the
person~, or the entity upon behalf of which the person~) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
ooeoooooeeeel
' RIK THOMAS J-··. , Notary Public -California ii. J · San Diego County !
. Commission# 2210854
My Comm. Expires Sep 17, 2021
(Seal)
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
ADDRESS:
ASSESSOR PARCEL NO.:
A-1
IO I 0/17/2032990.2
Escrow No.: SHK60118-006-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. 118, 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.
EXHIBITB
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 perjury that I/we occupy the home located
at _________________ [insert address] ("Property") as my/our
principal place of residence and that I/we have occupied the Property for _____ L_)
[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:
Owner signature
Date:
By:
Owner signature
Date:
Due Date: ____ of each calendar year.
Attach copy of utility bill or driver's license showing address of Property.
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EXHIBITC
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.
2.
3.
4.
5.
6.
7 ..
8.
Address of Property: ___________________ _
Date Owner purchased Property: ________________ _
Original Affordable Purchase Price: ______________ _
Original amount of Homebuyer Loan: ______________ _
Full J;>urchase Price: ---------------------
Date Owner intends to vacate Property: _____________ _
Date Property will be placed on market: _____________ _
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;
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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 correct and
is signed on the date(s) below under penalty of perjury.
By:
Owner signature
Date:
By:
Owner signature
Date:
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EXHIBITD
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:
l. __ 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 Tenn of the Resale Restriction Agreement.
A. Affordable Sales Price: $ -------
B. Amount owed on Homebuyer Loan: $ ________ _
C. Full Sales Price (add numbers in l(A) and l(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 l(C) and l(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 Home buyer Loan. If the City purchases your Property the
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amount you owe on the Homebuyer Loan shall credited against the purchase price paid by the
City.
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 Homebuyer Loan: $ ________ _
C. Full Sales Price (add numbers in l(A) and l(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 l(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 $ ______ _
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2 person household $ ______ _
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 infonnation listed in Section 15(B) of the Resale Restriction Agreement and 15(D)(l)
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
infom1ation 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:
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All questions regarding this notice should be directed to __________ .
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EXIDBIT E
FORM OF OWNER ACKNOWLEDGEMENT OF CITY RESPONSE NOTICE
Name:
Address of Property:
I (We), ____________ [insert narne(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:
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To:
From:
EXHIBITF
FORM OF OWNER REQUEST FOR CITY SUBORDINATION
TO REFINANCED FIRST LENDER LOAN
Property Address:
City of Carlsbad ("City")
_______________ ("Owner(s)")
________________ ("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 Homebuyer Loan Amount
3. Full Purchase Price of Property (I 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
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