2001-788739 OCT ~0, 2001 4:5c) Piti
FREE RECORDING REQUESTED OFFICIAL
PURSUANT TO GOV. CODE SECTION ~ DIEGO C0t~Y ~Ci~DER'S OFFICE
27383 GREGORY J. S~ITH, COL~TY RECORDER
FEES: 0.00
Recording requested by d By:
City of Encinitas
Community Development
505 S. Vulcan Avenue
Encinitas, CA 92024
And When Recorded Mail To:
City of Encinitas
Community Development
'~.~ 505 S. Vulcan Avenue
Encinitas, CA 92024
· ~¥ ~_-Sc-wo~.~, ~ ~ O~.-Iqb3c
_~ , ,. / DEED OF TRUST
THIS DEED OF TRUST is made this ~+(4. day of September 2001, among
the Trustor, SAN DIEGO HABITAT FOR HUMANITY, INC. (herein "Borrower"), and FIRST
AMERICAN TITLE COMPANY (herein "Trustee"), and the Beneficiary, CITY OF ENCINITAS
(herein "CITY"), whose address is 505 S. Vulcan Avenue, Encinitas, California 92024.
BORROWER, in consideration of the indebtedness herein recited and the trust
herein created, irrevocably grants and conveys to Trustee, in trust, with power of sale, the
following described property located in the County of San Diego, State of California:
see Exhibit "A" attached hereto and incorporated herein by this reference
which has the address of 830 Leucadia Boulevard , Encinitas, California 92024 herein
"Property Address");
TOGETHER with all the improvements now and hereafter erected on the
Property, and all easements, rights, appurtenances and rents (subject, however, to the rights
and authorities given herein to CITY to collect and apply such rents), all of which shall be
deemed to be and remain part of the property covered by this Deed of Trust; and all of the
foregoing, together with said property (or the leasehold estate if this Deed of Trust is on a
all payments received by CITY under the Note shall be applied by CITY first in payment of
amounts advanced by CITY to CITY by Borrower, then to interest payable on the Note, and
then to the principal of the Note.
4. Prior Mortgages and Deeds of Trust; Charges, Liens. Borrower shall
perform all of Borrower's obligations under any mortgage, deed of trust or other security
agreement with a lien which has priority over this Deed of Trust, including Borrower's
covenants to make payments when due. Borrower shall pay or cause to be paid all taxes,
assessments and other charges, fines and impositions attributable to the Property which may
attain a priority over this Deed of Trust, and leasehold payments, if any.
$. Hazard Insurance. Borrower shall keep the improvement(s) now
existing or hereinafter erected on the Property insured against loss by fire, hazards included
within the terms "extended coverage", and such other hazards as CITY may require and in
such amounts and for such periods as CITY may require.
The insurance carrier providing the insurance shall be chosen by
Borrower subject to approval by CITY, provided that such approval will not be unreasonably
withheld. All insurance policies and renewals thereof shall be in a form acceptable to CITY
and shall include a standard mortgage clause in favor of and in a form acceptable to CITY.
CITY has the right to hold the policies and renewals thereof, subject to the terms of any
mortgage, deed of trust or other security agreement with a lien which has priority over this
Deed of Trust.
In the event of loss, Borrower shall give prompt notice to the insurance
carrier and CITY. CITY may make proof of loss if not made promptly by Borrower.
If Property is abandoned by Borrower, or if Borrower fails to respond to
CITY within thirty (30) days from the date notice is mailed by CITY to Borrower that the
insurance carrier offers to settle a claim for insurance benefits, CITY is authorized to collect
and apply the insurance proceeds at CITY's option either to restoration or repair of the
Property or to the sums secured by this Deed of Trust.
6. Preservation and Maintenance of Property. Borrower will keep the
Property in good repair and shall not commit waste or permit impairment or deterioration of
the Property. Borrower shall perform all of Borrower's obligations under the declaration of
covenants, conditions and restrictions.
7. Protection of CITY Security. If Borrower fails to perform the covenants
and agreements contained in this Deed of Trust, or if any action or proceeding is commenced
which materially affects CITY's interest in the Property, the CITY, at CITY's option, upon
notice to Borrower, may make such appearances, disburse such sums including reasonable
attorneys' fees, and take such action as is necessary to protect CITY's interest.
Any amounts disbursed by CITY pursuant to this paragraph, with interest
thereon, at the Note rate, will become additional indebtedness of Borrower secured by this
habitatdeed.doc Page 3 of 12
022426
Deed of Trust. Unless Borrower and CITY agree to other terms of payment, such amounts
will be payable upon notice from CiTY to Borrower requesting payment thereof. Nothing
contained in this paragraph will require CITY to incur any expense or take any action
hereunder.
8. Inspection. CITY may make or cause to be made reasonable entries
upon and inspections of the Property, provided that CITY will give the Borrower notice prior to
any such inspection, specifying reasonable cause therefor related to CITY's interest in the
property.
9. Condemnation The proceeds of any award of claim for damages,
direct or consequential, in connection with any condemnation or other taking of the Property,
or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be
paid to CITY subject to the terms of any mortgage, deed of trust or other security agreement
with a lien which has priority over this Deed of Trust.
10. Borrower Not Released; Forbearance by CITY Not a Waiver.
Extension of the time for payment or modification of amortization of the sums secured by this
Deed of Trust granted by CITY to any successor in interest of Borrower shall not operate to
release, in any manner, the liability of the original Borrower and Borrower's successors in
interest. CITY shall not be required to commence proceedings against such successor or
refuse to extend time for payment or otherwise modify amortization of the sums secured by
this Deed of Trust by reason of any demand made by the original Borrower and Borrower's
successors in interest. Any forbearance by CITY in exercising any right or remedy hereunder,
or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of
any such right or remedy.
11. Successors and Assigns Bound, Joint and Several Liability; Co-
Signors. The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of CITY
and Borrower, subject to the provisions of paragraph 17 hereof. All covenants
and agreements of Borrower shall be joint and several.
12. Notice. Except for any notice required under applicable law to be given
in another manner:
(a) any notice to Borrower provided for in this Deed of Trust shall be given by
delivering it or by mailing such notice by certified mail, addressed to Borrower at
the Property address or such other address as Borrower may designate by
notice to CITY as provided herein; and,
(b) any notice to CITY will be given by certified mail, return receipt
requested, to CITY's address stated herein or to such other address as CITY
may designate by notice to Borrower as provided herein.
Any Notice provided for in this Deed of Trust shall be deemed to have been given to Borrower
habitatdeed.doc Page 4 of 12
or CITY when given in the manner designated herein.
13. Governing Law, Severability. The state and local laws applicable to
this Deed of Trust shall be the laws of the jurisdiction in which the Property is located. The
foregoing sentence shall not limit the applicability of federal law to this Deed of Trust. In the
event that any provision or clause of this Deed of Trust or the Note conflicts with applicable
law, such conflict shall not affect other provisions of this Deed of Trust or the Note which can
be given effect without the conflicting provision and, to this end, the provisions of this Deed of
Trust and the Note are declared to be severable. As used herein, "costs", "expenses" and
"attorneys' fees" include all sums to the extent not prohibited by applicable law or limited
herein.
14. Borrower's Copy. Borrower shall be furnished a conformed copy of the
Note and this Deed of Trust at the time of execution or after recordation hereof.
15. Notice to CITY. Borrower agrees that it will give the CITY notice of any
prospective transfer, sale, or conveyance not less than forty five (45) days before the
proposed sale, transfer, or conveyance by personal delivery of a notice at the address set
forth for the CITY on Page 1 of this Deed of Trust. Time is of the essence.
16. Lease of Property Prohibited. During the term of the affordability
restrictions as set forth in Paragraph 17(e) of this Deed of Trust, the Borrower shall not rent or
sublet the Property, or any part thereof, to any person and/or entity. Leasing of the Property
shall be deemed a prohibited transfer of the Property, within the meaning of Paragraph 18,
and shall trigger the right of the CITY to foreclose and/or exercise its First Rig ht of Refusal.
17. Transfer, Conveyance of Property Restricted for Thirty {30) Yearn.
The sale, transfer and/or conveyance of the Property is restricted as follows:
Borrower will sell the Property to a Iow income family, with an income at
or below 60% of the area median !ncome as adjusted for family size, at an affordable price, of
which a payment would equate 30% of family's gross monthly income. When Borrower sells
Property to approved family, the City will release Borrower from this Deed of Trust and record
a new Deed of Trust with the new Borrower. Subsequent transfers within thirty (30) years after
the date of recordation of this Deed of Trust, shall be subject to the following:
(a) Within twenty (20) years after the date of recordation of this Deed
of Trust, the resale restrictions in the First mortgage documents by Habitat shall
be enforced.
(b) Between the dates of the expiration of the Habitat documents and
thirty (30) years after the date of recordation of this Deed of Trust, The Property
may only be sold, transferred or conveyed to a subsequent pumhaser whose
income is less than eighty percent (80%) of the median income as defined by
HUD from time to time for the San Diego metropolitan area, as adjusted for
family size and as verified and approved by CITY.
habitatdeed.doc Page 5 of 12
leasehold) are hereina~er referred to as the "Prope~y";
TO SECUR~ to CI~Y the repayment of the indebtedness evidenced by
Borrower's Promisso~ Note dated September ,2001, and Note Rider, and extensions and
renewals thereof (herein collectively referred to as the "Note"), in the principal sum of Two-
Hundred Ten Thousand U.S. Dollars ($210,000) with interest thereon, fully deferred with the
total indebtedness, if not sooner paid, due and payable upon default by Borrower, a
Prohibited Transfer as defined in the Deed of Trust. This Note will be forgiven on the date
which is thirty (30) years after the recordation date hereof, if Borrower has not defaulted or
made a Prohibited Transfer of the Property, or any portion thereof; CITY has received the
payment of all other sums, with interest thereon, advanced in accordance herewith to protect
the security of this Deed of Trust; and CITY has received the full performance of the
covenants and agreements of Borrower herein contained.
Borrower covenants that Borrower is lawfully seized of the estate hereby
conveyed and has the right to grant and convey the Property, and that the Property is
unencumbered except for encumbrances of record. Borrower covenants that Borrower
warrants and will defend generally the title to the Property against all claims and demands,
subject to encumbrances of record.
UNIFORM COVENANTS
Borrower and CITY covenant and agrees as follows:
1. Payment of Principal and Interest Borrower shall promptly pay when
due the principal and interest indebtedness evidenced by the Note.
2. Payment of Taxes and Insurance. To protect the security of the Deed
of Trust, Trustor agrees to pay, at least ten (10) days before delinquency, all taxes and
assessments affecting said property, including assessments on appurtenant water stock;
when due, all encumbrances, charges and liens, with interest, on said property or any part
thereof, which appear to be prior or superior hereto; and all costs, fees and expenses of this
Trust.
Should Trustor fail to make any payment or to do any act as herein
provided, then Beneficiary or Trustee, without obligation to do so and without notice to or
demand upon Trustor and without releasing Trustor from any obligation hereof, may make or
do the same in such manner and to such extent as either may deem necessary to protect the
security hereof, Beneficiary or Trustee being authorized to enter upon said property for such
purposes; appear in and defend any action or proceeding purporting to affect the security
hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears to be
prior or superior hereto; and, in exercising any such powers, pay necessary expenses, employ
counsel and pay his reasonable fees.
3. Application of Payments. Unless applicable law provides otherwise,
habitatdeed.doc Page 2 of 12
(i) Except as provided in Paragraph 17(d) hereof, the Property must
be used only as the principal residence of the subsequent purchaser
during the term of the Declaration, i.e, thirty (30) years from the
recordation date hereof.
(ii) The sale price to the subsequent purchaser must be at a price that
is "affordable to the subsequent purchaser(s)". "Affordable to the
subsequent purchaser(s)" is achieved if the monthly payments for
principal, interest, property taxes, insurance and a utility allowance
determined by CITY do not exceed thirty percent (30%) of the gross
income of a family with an income that is eighty percent (80%) of the
median income for the area, adjusted for a family size of five.
(iii) In the event that a Transferor is unable to find, despite diligent efforts
to do so, an Eligible Person or Family to purchase a Housing Unit, the
Transferor may sell the Housing Unit to a person other than an Eligible
Person or Family by first offering to sell the Housing Unit to the CITY for
a purchase price equal to highest purchase price at which an Eligible
Person or Family could qualify to purchase the Housing Unit at an
Affordable Housing Cost. The CITY shall accept or reject the offer to sell
the Housing Unit to the CITY within thirty (30) days of the date of receipt
of the offer to sell. In the event that the CITY declines to purchase the
Housing Unit, the Transferor may proceed to market and sell the Housing
Unit to any purchaser without regard to the resale conditions set forth in
this Agreement; provided that upon or prior to the close of escrow the
Transferor shall pay to the CITY the greater of: 1) the amount of the
Second Deed of Trust, or 2) "Equity Sharing Amount", hereinafter
defined.
The "Equity Sharing Amount" means an amount equal to the
appreciation in the value of the Property determined by the difference
between the Sales Price and the Affordable Housing Price (as defined
below).
The "Affordable Housing Price" is the purchase price that could be paid
by an Eligible Person or Family at an Affordable Housing Cost.
The "Sales Price" is the price to be paid by the buyer of the Property (the
"Buyer") to the Transferor for Transferor's interest in the Property,
exclusive of escrow fees, title insurance costs, broker's commissions,
loan fees or any other closing or transaction costs.
Upon a showing of hardship by the Transferor to the CITY in writing, the
CITY may waive any one or combination of the following: the resale
restrictions, the Transferor's obligation to sell to the CITY, the
habitatdeed.doc Page 6 of 12
Transferor's obligation to pay the CITY the Equity Sharing Amount and/or
the Transferor's obligation to pay the CITY the amount of the Second
Deed of Trust.
(c) The affordability requirement shall remain in effect for a total of thirty (30)
years, measured from the date of recordation of this Deed of Trust. This
requirement shall remain in full force and effect against all subsequent
purchasers during the restricted term. This restriction shall also apply to sales of
the Property from the subsequent purchaser to other purchaser(s) during the
restricted term.
(d) If the Borrower fails, refuses or is unable to convey, sell, or transfer the
Property to a person or persons meeting the requirements of paragraphs 16,
17a through 17c, inclusive, before the end of the affordability term as defined in
paragraph 17e, then such transfer shall be deemed a Prohibited Transfer as
defined in Paragraph 18 hereof.
These provisions of paragraph 17 shall bind the heirs, successors and assigns of the
Borrower.
18. Prohibited Transfer. If Borrower sells, agrees to sell, conveys, rents
and/or transfers the Property in violation of the terms of Paragraphs 16 and 17 hereof, then
CITY may, at its option, in addition to any and all other remedies available to it, require
immediate payment in full of all sums secured by the Deed of Trust. In the instance of a
prohibited transfer, the Transferor shall pay to the CITY the greater of: 1) the amount of the
Deed of Trust, including any interest, as described in the Note, or 2) "Equity Sharing Amount",
as defined above.
As an alternative, CITY may, at its option, purchase the Property for a
purchase price equal to the highest purchase price at which an Eligible Person or Family
could quali~ to purchase the Housing Unit at an Affordable Housing Cost. However, these
options shall not be exercised by CITY if such exercise is prohibited by federal law as of the
date of the Deed of Trust or if the CITY has executed a separate written waiver of these
options.
If CITY exercises any of these options, CITY shall give Borrower Notice
of Acceleration or, in the alternative, Notice of Exercise of First Right of Refusal Option. The
notice shall provide a period of not less than thirty (30) days from the date that the notice is
delivered or mailed within which Borrower must pay all sums secured by the Deed of Trust or
must enter into an escrow to convey the Property to CITY, depending upon the option
exercised by CITY. If Borrower fails to pay these sums or enter into an escrow prior to the
expiration of this period, CITY may invoke any remedies permitted by the Deed of Trust
without further notice or demand on Borrower. The escrow contemplated by this Paragraph
18 must close not more than ninety (90) days after CITY receives notice of such sale,
agreement to sell, conveyance, rental or transfer of the Property in violation hereof.
habitatdeed,doc Page 7 of 12
0E 430
NON-UNIFORM COVENANTS
Borrower and CITY further covenant and agree as follows:
19. Acceleration, Remedies. Upon Borrower's breach of any covenant or
agreement of Borrower in this Deed of Trust, including the covenants to pay when due any
sums secured by this Deed of Trust, and those contained in paragraphs 16, 17 and 18 hereof,
CITY, prior to acceleration, shall give notice to Borrower as provided in paragraph 12 hereof
specifying:
(a) the breach;
(b) the action required to cure such breach;
(c) a date, not less than ten (10) days from the date the notice is
mailed to Borrower, by which such breach must be cured; and,
(d) that failure to cure such breach on or before the date specified in
the notice may result in acceleration of the sums secured by this Deed of Trust
and sale of the Property.
The notice shall further inform Borrower of the right to reinstate after
acceleration and the right to bring a court action to assert the nonexistence of a default or any
other defense of Borrower to acceleration and sale. If the breach is not cured on or before the
date specified in the notice, CITY, at CITY's option, may declare all of the sums secured by
this Deed of Trust to be immediately due and payable without further demand and may invoke
the power of sale and any other remedies permitted by applicable law. CITY shall be entitled
to collect all reasonable costs and expenses incurred in pursuing the remedies provided in
this paragraph 19, including, but not limited to, reasonable attorneys' fees.
If CITY invokes power of sale, CITY shall execute or cause Trustee to
execute a written notice of the occurrence of an event of default and of CiTY's election to
cause the Property to be sold and shall cause such notice to be recorded in each county in
which the Property or some part thereof is located. CITY or Trustee shall mail copies of such
notice in the manner prescribed by applicable law. Trustee shall give public notice of sale to
the persons and in the manner prescribed by law. After the lapse of such time as may be
required by applicable law, Trustee, without demand on Borrower, shall sell the Property at
public auction to the highest bidder at the time and place and under the terms designated in
the notice of sale in one or more parcels and in such order as Trustee may determine.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the
time and place of any previously scheduled sale. CITY or CITY's designee may purchase the
Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the
Property so sold without any covenant or warranty, expressed or implied. The recitals in the
Trustee's deed shall be prima facie evidence of the truth of the statements made therein.
habitatdeed.doc Page 8 of 12
Trustee shall apply the proceeds of the sale in the following order:
(1) to all reasonable costs and expenses of the sale, including, but
not limited to, reasonable Trustee's and attorneys' fees and costs
of title evidence;
(2) to all sums secured by this Deed of Trust; and,
(3) the excess, if any, to the person or persons legally entitled thereto.
20. Borrower's Right to Reinstate. Notwithstanding CITY's acceleration of
the sums secured by this Deed of Trust due to Borrower's breach, Borrower shall have the
right to have any proceedings begun by CITY to enforce this Deed of Trust discontinued at
any time prior to five (5) days before the sale of the Property pursuant to the power of sale
contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed
of Trust if:
(a) Borrower pays CITY all sums which would be then due under this
Deed of Trust and the Note had no acceleration occurred;
(b) Borrower cures all breaches of any other covenants or
agreements of Borrower contained in this Deed of Trust;
(c) Borrower pays all reasonable expenses incurred by CITY and
Trustee in enforcing the covenants and agreements of Borrower continued in
this Deed of Trust and in enforcing Trustee's remedies as provided in paragraph
19 hereof, including, but not limited to, reasonable attorneys' fees; and,
(d) Borrower takes such action as CITY may reasonably require to
assure that the lien of this Deed of Trust, CITY's interest in the Property and
Borrower's obligation to pay the sums secured by this Deed of Trust shall
continue unimpaired.
Upon such payment and cure by Borrower, this Deed of Trust and the
obligations secured hereby shall remain in full force and effect as if no acceleration had
occurred.
21. Assignment of Rents; Appointment of Receiver; CITY in
Possession. As additional security hereunder, Borrower hereby assigns to CITY the rents of
the Property, provided that Borrower shall, prior to acceleration under paragraph 19 hereof or
abandonment of the Property, have the right to collect and retain such rents as they become
due and payable.
Upon acceleration under paragraph 19 hereof or abandonment of the
Property, CITY, in person, by agent or by judicially appointed receiver shall be entitled to enter
habitatdeed.doc Page 9 of 12
upon, take possession of and manage the Property and to collect the rents of the Property
including those past due. All rents collected by CITY or the receiver shall be applied first to
payment of the cost of management of the Property and collection or rents, including, but not
limited to, receiver's fees, premiums on receiver's bonds and reasonable attorneys' fees, and
then to the sums secured by this Deed of Trust. CITY and the receiver shall be liable to
account only for those rents actually received.
22. Reconveyanc& Upon payment of all sums secured by this Deed of
Trust, CITY shall request Trustee to reconvey the Property and will surrender this Deed of
Trust and all Notes evidencing indebtedness secured by this Deed of Trust to Trustee.
Trustee shall reconvey the Property without warranty and without charge to the person or
persons legally entitled thereto. Such person or persons shall pay all costs of recordation, if
any.
23. Substitute Trustee. CITY, at CITY's option, may from time to time
appoint a successor trustee to any Trustee appointment hereunder by an instrument executed
and acknowledged by CITY and recorded in the office of the Recorder of the county where
the Property is located. The instrument shall contain the name of the original lender, Trustee
and Borrower, the book and page where this instrument is recorded, and the name and
address of the successor trustee. The successor trustee shall, without conveyance of the
Property, succeed to all the title, power and duties conferred upon the Trustee herein and by
applicable law. This procedure for substitution of trustee shall govern to the exclusion of all
other provisions for substitution.
24. Request for Notices. Borrower requests that copies of the notice of
sale be sent to Borrower's address which is the Property Address.
25. Statement of Obligation, CITY may charge a fee not to exceed Sixty
Dollars ($60.00) for furnishing the statement of obligation as provided by Section 2943 of the
Civil Code of California.
26, Covenants, Conditions and Restriction& The Property is subject to
Covenants, Conditions and Restrictions [Affordability Restrictions] ("Restrictions") between
CITY and Borrower, which are not attached hereto but are incorporated by reference.
Borrower acknowledges receipt of said Restrictions and agrees, for himself, his heirs,
successors and assigns to be bound by the same.
27. Warranties of Borrower. Borrower warrants to CITY as follows:
That Borrower will sell the property within one hundred eighty (180) days of the
recordation of this Deed of Trust to a family whose household annual gross
income does not exceed sixty percent (60%) of the median income for the San
Diego metropolitan area, as adjusted for family size, as said median income is
determined by HUD, on the date of initial occupancy of the Property.
28. Subordinateto Senior Deed of Trust This Deed of Trust is subordinate
habitatdeed.doc Page 10 of 12
022433
to any deed of trust or mortgage on the Property made by or held by an institutional ~ender or
investor.
REQUEST FOR NOTICE OF DEFAULT
AND FORECLOSURE UNDER SUPERIOR
MORTGAGES OR DEEDS OF TRUST
CITY will request that copies of notices of foreclosure from the holder of any lien
which has priority over this Deed of Trust be sent to CITY's address, as set forth on page 1 of
this Deed of Trust, as provided by Section 2924b of the Civil Code of California.
IN WITNESS WHEREOF, Borrower has executed this Deed of Trust.
Date: /O - O~ r O / San Die.qo Habtat for Human ty, Inc.
~ ,Executive Director
Tom Durw~od
habitatdeed.doc Page 11 of 12
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STATE OF CALIFO~ )SS
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O~ON~
C~AC~ CLaD BY ~IC~R
hough sta~te does not ~qui~ te Not~ to fill ~ te data below, do~i so may prove invluable to perso~
document.
] XND~IDUAL
[ ] PAR~ER(S) - [ ] L~D [ ] ~ENE~L
[ ] A~O~EY-IN-FAC~
[ ] TRUSTE~(S}
[ ] GUA~/CONSERVA)OR
O~ON~ SECTION
~ou~ ~e date ~quest~ here is not required by law, it could prevent fraudulem mattachmem of ~is fo~.
ms c~'~cAT~ ~ST BE A~AC~D TO ~ ~OC~ DESEXED nELOW
TITL~ O~ TY~ O~ DOCUMenT: ~e e~ o~ ~ ¢
NUMBER OF PAGES [ ~ DATE OF DOCUMENT (~q - & ~ -O
S~N~(S> O~H~ TH*N ~D *~OW
ORDER NO. 1271783-8
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 15 OF HILLSIDE ACRES, IN THE CITY OF ENCINITAS, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1992, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 25, 1927,
DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT OF THE WESTERLY LINE OF THE EASTERLY 70.00 FEET OF THE
SOUTHERLY 145.00 FEET OF SAID LOT 17, SAID POINT BEARS NORTH 00°43'47" EAST, 33.50
FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE PARALLEL WITH THE
SOUTHERLY LINE OF SAID LOT 17 AND 15, SOUTH 89°14'13'' EAST, 78.21 FEET TO THE
TRUE POINT OF BEGINNING; THENCE CONTiNUiNG SOUTH 89°14'13" EAST, 91.79 FEET TO
THE WESTERLY LINE OF THE EASTERLY 100.00 FEET OF SAID LOT 15; THENCE ALONG
THE WESTERLY LINE THEREOF, NORTH 00°43'36" WEST, 116.10 FEET TO THE SOUTHERLY
LINE OF THE NORTHERLY 374.50 FEET OF SAID LOT 15; THENCE ALONG SAID
SOUTHERLY LINE, NORTH 89°16'01 WEST, 91.79 FEET TO A LINE THAT BEARS NORTH
00°43'36" EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 00o43'36'' WEST,
116.05 FEET TO THE TRUE POINT OF BEGINNING.
RESERVING THEREFROM AN EASEMENT FOR LANDSCAPE AND MAINTENANCE
PURPOSES AND APPURTENANCES THERETO OVER, UNDER, ALONG, ACROSS AND
THROUGH THOSE PORTIONS OF LOTS 15 AND 17 OF HILLSIDE ACRES IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 1992, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JANUARY 25, 1927, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL B; THENCE ALONG THE
SOUTHERLY LINE THEREOF, NORTH 89°14'13'' WEST, 91.79 FEET TO THE SOUTHWEST
CORNER OF SAID PARCEL B; THENCE ALONG THE WESTERLY LINE THEREOF, NORTH
00o43'36" WEST, 3.82 FEET; THENCE LEAVING SAID WESTERLY LINE, NORTH 82o08'38"
EAST, 0.37 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY 30.63 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 87°45'42"; THENCE NORTH 00°00'00'' WEST, 2.17 FEET;
THENCE NORTH 90000'00" EAST, 25.20 FEET TO THE EASTERLY LINE OF SAID PARCEL B;
THENCE ALONG THE EASTERLY LINE THEREOF, SOUTH 00o43'36'' WEST, 29.48 FEET TO
THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS PARCEL B IN A CERTIFICATE OF COMPLIANCE
RECORDED ON JULY 31, 2001 AS FILE NO. 2001-0536779 OF OFFICIAL RECORDS OF SAID
SAN DIEGO COUNTY.
AUGUST 03, 2001 2:39 PM RL
PAGE 4
D00 001-0788758
Recording requested by
First American Title OCT 30, 2001 4: 59 PM
FREE RECORDING REQUESTED EFIOI~L
PURSUANT TO GOV. CODE SECTION,.'~ ~ ~I~ ~ E~R'8 ~FI~
27383
~: 0.~
Reeordin9 Raquaated By:
City of Encinitas
~ncinitas, CA ~2024 ~o0~-o~,~
~nd ~hon Roeordod ~ail To:
q
City of ~ncinitas
Community Devolopment
505 S. Vulcan Avenue
fincinitas, CA ~2024
DECLARATION OF COVENANTS a s~ - a ~ z- 3 ~- o oz.,.--'
CONDITIONS AND RESTRICTIONS
[AFFORDABILITY RESTRICTIONS]
THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(hereafter "Declaration") is made as of this day of..~ ,,~,,- .~, 2001, by SAN DIEGO
HABITAT FOR HUMANITY, INC. (hereafter, "BORRO!,~/ER" or aDECLARANT"), in connection
with that certain parcel of real property ("the Property") located in the City of Encinitas, County
of San Diego, Califomia, described in Exhibit "A" attached hereto and incorporated herein by
reference.
RECITALS
BORROWER has acquired title to the Property from the City of Encinitas ("the CITY")
in order to provide affordable housing.
Concurrently with the recordation of this Declaration, the CITY is recording a deed of
trust (hereafter "Deed of Trust"), to secure a loan from CITY to BORROWER to aid
BORROWER in acquiring the Property. The Deed of Trust in favor of the CITY was condi-
tioned in part upon the recordation of a document setting forth certain restrictions upon the
use and sale of the Property.
NOW, THEREFORE, BORROWER hereby declares that the Property shall be subject
to the covenants, conditions and restrictions set forth below:
I. RESTRICTIVE COVENANTS. BORROWER agrees and covenants, on behalf
of itself and its successors and assigns and each successor-in-interest to the Property, that at
all times during the term of this Declaration set forth in paragraph 2 hereof, the Property shall
be subject to the provisions of paragraphs 16, 17, 18, 26, and 27 of the Deed of Trust,
whether or not said Deed of Trust continues to encumber the Property, which provisions are
hereinafter set forth at length:
16. Lease of Property Prohibited. During the term of the affordability
restrictions as set forth in Paragraph 17(e) of this Deed of Trust, the Borrower shall not rent or
sublet the Property, or any part thereof, to any person and/or entity. Leasing of the Property
shall be deemed a prohibited transfer of the Property, within the meaning of Paragraph 18,
and shall trigger the right of the CITY to foreclose and/or exercise its First Right of Refusal.
17. Transfer, Conveyance of Property Restricted for Thirty (30) Years,
The sale, transfer and/or conveyance of the Property is restricted as follows:
Borrower will sell the Property to a Iow income family, with an income at
or below 60% of the area median income as adjusted for family size, at an affordable price, of
which a payment would equate 30% of family's gross monthly income. When Borrower sells
Property to approved family, the City will release Borrower from this Deed of Trust and record
a new Deed of Trust with the new Borrower. Subsequent transfers within thirty (30) years after
the date of recordation of this Deed of Trust, shall be subject to the following:
(a) Within twenty (20) years after the date of recordation of this Deed of
Trust, the resale restrictions in the First mortgage documents by Habitat shall be
enforced.
(b) Between the dates of the expiration of the Habitat documents and thirty
(30) years after the date of recordation of this Deed of Trust, The Property may
only be sold, transferred or conveyed to a subsequent purchaser whose income
is less than eighty percent (80%) of the median income as defined by HUD from
time to time for the San Diego metropolitan area, as adjusted for family size and
as verified and approved by CITY.
(i) Except as provided in Paragraph 17(d) hereof, the Property must
be used only as the principal residence of the subsequent purchaser
during the term of the Declaration, i.e, thirty (30) years from the
recordation date hereof.
(ii) The sale price to the subsequent purchaser must be at a price that
is "affordable to the subsequent purchaser(s)". "Affordable to the
subsequent purchaser(s)" is achieved if the monthly payments for
principal, interest, property taxes, insurance and a utility allowance
determined by CITY do not exceed thirty percent (30%) of the gross
income of a family with an income that is eighty percent (80%) of the
median income for the area, adjusted for a family size of five.
(iii) In the event that a Transferor is unable to find, despite diligent efforts
/E. ncinitas/CC&RS.005 Page 2 of 9
022416
to do so, an Eligible Person or Family to purchase a Housing Unit, the
Transferor may sell the Housing Unit to a person other than an Eligible
Person or Family by first offering to sell the Housing Unit to the CITY for
a purchase price equal to highest purchase price at which an Eligible
Person or Family could qualify to purchase the Housing Unit at an
Affordable Housing Cost. The CITY shall accept or reject the offer to sell
the Housing Unit to the CITY within thirty (30) days of the date of receipt
of the offer to sell. In the event that the CITY declines to purchase the
Housing Unit, the Transferor may proceed to market and sell the Housing
Unit to any purchaser without regard to the resale conditions set forth in
this Agreement; provided that upon or prior to the close of escrow the
Transferor shall pay to the CITY the greater of: 1) the amount of the
Second Deed of Trust, or 2) "Equity Sharing Amount", hereinafter
defined.
The "Equity Sharing Amount" means an amount equal to the
appreciation in the value of the Property determined by the difference
between the Sales Price and the Affordable Housing Price (as defined
below).
The "Affordable Housing Price" is the purchase price that could be paid
by an Eligible Person or Family at an Affordable Housing Cost.
The "Sales Price" is the price to be paid by the buyer of the Property (the
"Buyer") to the Transferor for Transferor's interest in the Property,
exclusive of escrow fees, title insurance costs, broker's commissions,
loan fees or any other closing or transaction costs.
Upon a showing of hardship by the Transferor to the CITY in writing, the
CITY may waive any one or combination of the following: the resale
restrictions, the Transferor's obligation to sell to the CITY, the
Transferor's obligation to pay the CITY the Equity Sharing Amount and/or
the Transferor's obligation to pay the CITY the amount of the Second
Deed of Trust.
(c) The affordability requirement shall remain in effect for a total of thirty (30)
years, measured from the date of recordation of this Deed of Trust. This
requirement shall remain in full force and effect against all subsequent
purchasers during the restricted term. This restriction shall also apply to sales of
the Property from the subsequent purchaser to other purchase¢(s) during the
restricted term.
(d) If the Borrower fails, refuses or is unable to convey, sell, or transfer the
Property to a person or persons meeting the requirements of paragraphs 16,
17a through 17e, inclusive, before the end of the affordability term as defined in
paragraph 17e, then such transfer shall be deemed a Prohibited Transfer as
/Encinitas/CC&RS 005 Page 3 of 9
0 24 ?
defined in Paragraph 18 hereof.
These provisions of paragraph 17 shall bind the heirs, successors and assigns of the
Borrower.
18. Prohibited Transfer. If Borrower sells, agrees to sell, conveys, rents
and/or transfers the Property in violation of the terms of Paragraphs 16 and 17 hereof, then
CITY may, at its option, in addition to any and all other remedies available to it, require
immediate payment in full of all sums secured by the Second Deed of Trust. In the instance
of a prohibited transfer, the Transferor shall pay to the CITY the greater of: 1) the amount of
the Second Deed of Trust, including any interest, as described in the Note, or 2) "Equity
Sharing Amount", as defined above.
As an alternative, CITY may, at its option, purchase the Property for a
purchase price equal to the highest purchase price at which an Eligible Person or Family
could quality to purchase the Housing Unit at an Affordable Housing Cost. However, these
options shall not be exercised by CITY if such exercise is prohibited by federal law as of the
date of the Deed of Trust or if the CITY has executed a separate written waiver of these
options.
If CITY exercises any of these options, CITY shall give Borrower Notice
of Acceleration or, in the alternative, Notice of Exercise of First Right of Refusal Option. The
notice shall provide a period of not less than thirty (30) days from the date that the notice is
delivered or mailed within which Borrower must pay all sums secured by the Deed of Trust or
must enter into an escrow to convey the Property to CITY, depending upon the option
exercised by CITY. If Borrower fails to pay these sums or enter into an escrow prior to the
expiration of this period, CITY may invoke any remedies permitted by the Deed of Trust
without further notice or demand on Borrower. The escrow contemplated by this Paragraph
18 must close not more than ninety (90) days after CITY receives notice of such sale,
agreement to sell, conveyance, rental or transfer of the Property in violation hereof.
26. Covenants, Conditions and Restrictions The Property is subject to
Covenants, Conditions and Restrictions ("Restrictions") between CITY and Borrower, which
are not attached hereto but are incorporated by reference. Borrower acknowledges receipt of
said Restrictions and agrees, for himself, his heirs, successors and assigns to be bound by
the same.
27. Warranties of Borrower. Borrower warrants to CITY as follows:
That Borrower will sell the property within one hundred eighty (180) days of the
recordation of this Deed of Trust to a family whose household annual gross
income does not exceed sixty percent (60%) of the median income for the San
Diego metropolitan area, as adjusted for family size, as said median income is
determined by HUD, on the date of initial occupancy of the Property.
2. TERM. This Declaration shall expire thirty (30) years from the recordation of this
m,,ci.ltwcc&ws.005 Page 4 of 9
0224 8
Declaration.
3. COVENANT AGAINST DISCRIMINATION BORROWER covenants on behalf
of itself and its successors and assigns, and each successor in interest to the Property, not to
discriminate against any prospective purchaser of the Property on the basis of race, religion,
sex or national origin.
4. ENFORCEMENT. BORROWER expressly agrees and declares that the CITY
or any successor public agency is a proper party and shall have standing to initiate and
pursue any and all actions or proceedings, at law or in equity to enforce the provisions hereof
and/or to recover damages for any default hereunder and/or to enforce the terms of this
Declaration. Further, the CITY or any successor public agency shall be the proper party to
waive, relinquish, release or modify the rights, covenants, obligations or restrictions contained
in or arising under this Declaration.
5. ATTORNEYS' FEES. In the event of any litigation for the enforcement or
interpretation of this Declaration, whether an action-at-law, arbitration or any manner of non-
judicial dispute resolution agreed to by both parties by reason of the breach of any condition
or covenant, representation or warranty in this Declaration or otherwise arising out of this
Declaration, the prevailing party in such action, arbitration or proceeding shall be entitled to
recover from the other reasonable attorneys' fees to be fixed by the court which shall render a
judgment, as well as the costs of suit.
6. SEVERABILITY. In the event that any provision or covenant of this Declaration
is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be
severed from the remaining portions of this Declaration which shall remain in full force and
effect.
7. COVENANTS TO RUN WITH THE LAND. The covenants contained herein
shall constitute "covenants running with the land" pursuant to Civil Code Sections 1460, 1462,
1463, 1464, 1465, 1467 and 1468, to the extent applicable, and shall bind the Property and
every person having an interest therein during the term of this Declaration, including
BORROWER and its successors, heirs and assigns. BORROWER agrees for itself and its
successors that, in the event that, for any reason whatsoever, a court of competent jurisdiction
determines that the foregoing covenants do not run with the land, such covenants shall be
enforced as equitable servitude's against the Property.
8. RECORDATION. This Declaration shall be recorded in the Office of County
Recorder of San Diego, California.
9. REMEDIES CUMULATIVE. CITY shall have the right, in the event of any
breach of any such agreement or covenant contained herein, to exercise all the rights and
remedies, and to maintain any actions at law or suits in equity or other proper proceedings to
redress the breach of such agreement or covenant.
10. MORTGAGEE PROTECTION. No violation or breach of the covenants,
/Encinitas/CC&RS.005 Page 5 of 9
022419
conditions, restrictions, provisions or limitations contained in this Declaration shall defeat,
render invalid or in any way impair the lien or charge of any permitted deed of trust recorded
on the Property provided, however, that any subsequent owner of the Property shall be bound
by the covenants, conditions, restrictions, limitations and provisions of this Agreement,
whether such owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's
sale or otherwise.
11. HEADINGS, The headings used in this Declaration are for convenience only
and are not to be used to interpret the meaning of any of the provisions of this Declaration.
12, LIBERAL CONSTRUCTION. The provisions of this Declaration shall be
liberally construed to effectuate its purpose. Failure to enforce any provision of this
Declaration shall not constitute a waiver of the right to enforce the provision later.
13. NUMBER; GENDER. The singular shall include the plural and the plural the
singular, unless the context requires the contrary; and the masculine, feminine and neuter
shall include the masculine, feminine or neuter, as the context requires.
14. EXHIBITS. Any exhibits referenced herein and attached to this Declaration are
hereby incorporated by reference.
15. NOTICES TO MORTGAGEES OF RECORD. On any loss to the Property, if
such loss exceeds One Thousand Dollars ($1,000.00), notice in writing of such loss shall be
given to each mortgagee of record.
16. FIRE AND EXTENDED COVERAGE INSURANCE BORROWER shall obtain
and maintain a policy of fire insurance for the full insurable value of all the improvements
within the Property. The form, content and term of the policy, its endorsements and the
issuing company must be satisfactory to all mortgagees. If more than one mortgagee has a
loan of record against the Property, or any part thereof, the policy and endorsement shall
meet the maximum standards of the various mortgagees represented in the Property. The
policy shall contain an agreed amount endorsement or its equivalent, an increased cost of
construction endorsement, vandalism and malicious mischief coverage, a special form
endorsement and a determinable cash adjustment clause or a similar clause to permit cash
settlements covering the full value of the improvements in case of partial destruction and a
decision not to rebuild. The policy shall name as insureds the owners, BORROWER and the
mortgagees, as long as their respective interests may appear. "Mortgagees", as used herein,
includes beneficiaries under a deed of trust.
17. BINDING EFFECT. This Declaration shall inure to the benefit of and be binding
upon the successors and assigns of the BORROWER and the heirs, personal
representatives, grantees, tenants, successors-in-interestor assigns of the owners.
18. CERTIFICATIONS BY BORROWER. As and when required by the CITY, but
not more frequently than once a year BORROWER shall certify to the CITY that
BORROWER:
?En¢initas/CC&RS.O05 Page 6 of 9
022420
(a) Complies with all the terms and conditions of this Declaration and the
Trust Deed; and,
(b) Has obtained and does maintain fire and casualty insurance on the
Property satisfactory to the CITY, including a certificate of insurance, of which the CITY
shall be a holder, from the insurance company providing coverage satisfactory to the
CITY which may not be cancelled by the insurance company without thirty (30) days
advance notice of cancellation.
19, DECLARATION SUBORDINATE This Declaration shall subordinate to a deed
of trust or mortgage on the Property held by Habitat for Humanity, which deed of trust will be
senior in recording priority to this Declaration, and will likewise subordinate to any mortgage or
deed of trust which is given in connection with any refinancing of the loan secured by such
senior deed of trust or mortgage, provided the loan amount of such refinancing does not
exceed the then outstanding balance (plus refinancing and closing costs) of the existing
senior loan.
"BORROWER"
Date:/0 - O ~' ' ¢)/' SAN DIEGO HABITAT FOR HUMANITY, INC.
'"'T _ 'J'~r.~0 , Executive Director
Tom EJurw~od
/Encinitas/CC&RS.005 Page 7 of 9
ACKNOWLEDGMENT
State of California )
)
County of San Diego )
,2001, before me, C. - o s~persona I~a~peared,
~o~ '~~ oO ~ pcrs~nc',',y kncw~ tc me (or proved to me on
the basis of satisfacto~ evidence) to be the person~whose name(~ is/~subscribed to the
within instrument "COVENANTS, CONDITIONS AND RESTRICTIONS" and acknowledged to
me that he/s~e~ executed the same in his/h~r authorized capacity~s), and that by
his/h~/~eir signature~on the instrument the person), or the entity on behalf of which the
person(~ acted, executed the instrument.
=~ ~ COMM. ~1303411
WITNESS my hand and official seal. ~ NOTARY~BuC*OALIFORNIA
~[ MAY 5,
Signature .... -
(Seal)
/Encinitas/CC&RS.005 Page 8 of 9
ORDER NO. 1271783-8
022422
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS:
THAT PORTION OF LOT 15 OF HILLSIDE ACRES, IN THE CITY OF ENCINITAS, COUN2~ OF
SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 1992, FILED IN
THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JANUARY 25, 1927,
DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT OF THE WESTERLY LINE OF THE EASTERLY 70.00 FEET OF THE
SOUTHERLY 145.00 FEET OF SAID LOT 17, SAID POINT BEARS NORTH 00°43'47" EAST, 33.50
FEET FROM THE SOUTHWEST CORNER THEREOF; THENCE PARALLEL WITH THE
SOUTHERLY LINE OF SAID LOT 17 AND 15, SOUTH 89°14'13" EAST, 78.21 FEET TO THE
TRUE POINT OF BEGINNING; THENCE CONTINUING SOUTH 89°14'13" EAST, 91.79 FEET TO
THE WESTERLY LINE OF THE EASTERLY 100.00 FEET OF SAID LOT 15; THENCE ALONG
THE WESTERLY LINE THEREOF, NORTH 00043'36" WEST, 116. I0 FEET TO THE SOUTHERLY
LINE OF THE NORTHERLY 374.50 FEET OF SAID LOT 15; THENCE ALONG SAID
SOLrl'I-IERLY LINE, NORTH 89°16'01 WEST, 91.79 FEET TO A LINE THAT BEARS NORTH
00o43'36'' EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 00°43'36'' WEST,
116.05 FEET TO THE TRUE POINT OF BEGhNNING.
RESERVING THEREFROM AN EASEMENT FOR LANDSCAPE AND MAINTENANCE
PURPOSES AND APPURTENANCES THERETO OVER, UNDER, ALONG, ACROSS AND
THROUGH THOSE PORTIONS OF LOTS 15 AND 17 OF HILLSIDE ACRES IN THE CITY OF
ENCINITAS, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF NO. 1992, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, JANUARY 25, 1927, DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL B; THENCE ALONG THE
SOUTHERLY LiNE THEREOF, NORTH 89°14'13" WEST, 91.79 FEET TO THE SOUTHWEST
CORNER OF SAID PARCEL B; THENCE ALONG THE WESTERLY LINE THEREOF, NORTH
00°4Y36'' WEST, 3.82 FEET; THENCE LEAVING SAID WESTERLY LINE, NORTH 82°08'38"
EAST, 0.37 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHWESTERLY HAVING A
RADIUS OF 20.00 FEET; THENCE NORTHEASTERLY 30.63 FEET ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 87°45'42"; THENCE NORTH 00°00'00'' WEST, 2.17 FEET;
THENCE NORTH 90000'00" EAST, 25.20 FEET TO THE EASTERLY LINE OF SAID PARCEL B;
THENCE ALONG THE EASTERLY LINE THEREOF, SOUTH 00043'36" WEST, 29.48 FEET TO
THE POINT OF BEGINNING.
SAID PROPERTY BEING DESCRIBED AS PARCEL B IN A CERTIFICATE OF COMPLIANCE
RECORDED ON JULY 31, 2001 AS FILE NO. 2001-0536779 OF OFFICIAL RECORDS OF SAID
SAN DIEGO COUNTY.
AUGUST 03, 2001 2:39 PM RL
PAGE 4