2003-912758
,
. . # ~H'"'O7 -O91r)r"'58
DOC
RECORDED AT THE REQUEST OF ...U,j . L.. (
CHICAGO TITLE COMPANY JUL =-"30. 2003 3: :::"0 r:'I"'.
SUBDIVISION DEPT.
7299 OFFICIAL RECORDS
FREE RECORDING REQUESTED Sf1N DIEGO COUNTY RECORDER'S OFFICE
PURSUANT TO GOY. CODE SECTION GREGORY J. SMITH, COUNTY RECORDER
1~" 27383 FEES: 0.00
Recording Requested By: 1IIIIIIIIIIIIIIIIIII"III~~~!I~('~WIIIIIIIIIIIIIIIIIIIIIIIII
~~ City of Encinitas
Community Development
505 S. Vulcan Avenue
Encinitas, CA 92024
!ßl And When Recorded Mail To:
City of Encinitas
L-/rytl Community Development
q/II~J 505 S. Vulcan Avenue
Encinitas, CA 92024
';¿,ð57- ./l-
DEED OF TRUST
(This is a Second Deed ofTrust)
THIS DEED OF TRUST is made this ~;? day of ,l , 2003, among
the Trustor, James L. McDonald, Jr. and Rebecca E. Soto (herei "Borrower"), and
CHICAGO 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 1760 S. EI Camino Real #D205 , 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
I . .
37300
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
leasehold) are hereinafter referred to as the "Property";
TO SECURE to CITY the repayment of the indebtedness evidenced by
Borrower's Promissory Note dated ,\u l't¿¿ ~ , 2003, and Note Rider, and extensions and
renewals thereof (herein collectively re rred to as the "Note"), In the principal sum of One
Hundred Three Thousand Four Hundred and Ninetv-Three U.S. Dollars ($103.493) 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 fifty five (55) 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 COYENANTS
Borrower and CITY covenant and agree 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.
tdfonn.doc Page 2 of 16
. . .
37301
3. Application of Payments. Unless applicable law provides otherwise,
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 Mortaaaes and Deeds of Trust: Charaes. 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 payor 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.
5. 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 ofTrust.
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 and shall comply with the provisions of any lease if this Deed of Trust is on a
leasehold. Borrower shall perform all of Borrower's obligations under the declaration of
covenants, conditions and restrictions creating or governing the condominium, the bylaws and
regulations of the condominium, and constituent documents.
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
tdfonn.doc Page 3 of 16
. . 37302
attorneys' fees, and take such action as is necessary to protect CITY's interest. If CITY's
required mortgage insurance is a condition of making the loan secured by this Deed of Trust,
Borrower shall pay the premiums required to maintain such insurance in effect until such time
as the requirement for such insurance terminates in accordance with Borrower's and CITY's
written agreement or applicable law.
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
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 Assians Bound. Joint and Several Liabilitv: Co-
Sianors. 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 16 hereof. All covenants and agreements of Borrower
shall be joint and several. Any Borrower who co-signs this Deed of Trust, but does not
execute the Note:
(a) is co-signing this Deed of Trust only to grant and convey that Borrower's
interest in the Property to Trustee under the terms of this Deed of Trust;
(b) is not personally liable on the Note or under this Deed of Trust; and,
tdfonn.doc Page 4 of 16
. . 3t7303
(c) agrees that CITY and any other Borrower hereunder may agree to
extend, modify, forbear or make any other accommodation with regard to the
terms of this Deed of Trust or the Note, without that Borrower's consent and
without releasing that Borrower or modifying this Deed of Trust as to that
Borrower's interest in the property.
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
or CITY when given in the manner designated herein.
13. Governina 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, unless the person is an
income "Eligible Household". As used herein, an income "Eligible Household" shall mean a
household whose eligible income does not exceed eighty percent (80%) of the Area Median
Income for San Diego, as determined by the U.S. Department of Housing & Urban
tdfonn.doc Page 5 of 16
. . 37304
Development. Further, the rent charged to the Eligible Household shall not exceed thirty
percent (30%) of eighty percent of the Median Income, minus a utility allowance. For
purposes of this restriction, rents shall be based upon a household size of four (4). Leasing
of the Property to a household that is not an Eligible Household or rents that exceed the
restricted rental rates set forth herein 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 Fifty Five (55)
Years. The sale, transfer and/or conveyance of the Property is restricted as follows:
If Borrower sells, transfers or conveys the Property less than fifty five (55)
years after the date of recordation of this Deed of Trust, then said sale, conveyance and/or
transfer shall be subject to the following:
(a) 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.
(b) 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, fifty five (55) years from the recordation date hereof.
(c) 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-three percent (33%) 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 four (4).
(d) 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
tdfonn.doc Page 6 of 16
. . 3'1305
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 anyone 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.
(e) The afford ability requirement shall remain in effect for a total of fifty-five
(55) 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.
(f) 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 afford ability 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 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
tdfonn.doc Page 7 of 16
. . 3'7306
purchase price equal to the highest purchase price at which an Eligible Person or Family
could qualify 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.
NON-UNIFORM COYENANTS
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.
tdfonn.doc Page 8 of 16
. . 3'1307
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.
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 Riaht 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
tdfonn.doc Page 9 of 16
. . 37308
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. AssiQnment 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
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. Reconveyance. 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. Reauest 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 Obliaation. 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.
tdfonn.doc Page 10 of 16
. . 37309
26. Deed of Trust Rider. The Deed of Trust Rider executed by Borrower is
attached hereto and made part of this Deed of Trust.
27. Covenants. Conditions and Restrictions. 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.
28. Warranties of Borrower. Borrower warrants to CITY as follows:
(a) That Borrower's household annual gross income does not exceed
eighty percent (80%) 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 latter of:
(1) the date of initial occupancy of the Property; or,
(2) the date of the recordation of this Deed of Trust.
(b) Except as provided in Paragraph 16 of this Deed of Trust, for so
long as Borrower owns the Property, Borrower will reside in the Property as
Borrower's principal place of residence and will not to sublet, lease or rent out
the Property during the term of this Deed of Trust.
29. Subordinate to Senior Deed of Trust. This Declaration is subordinate
to any deed of trust or mortgage on the Property, which deed of trust is senior in recording
priority to this Declaration, and is 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. Any
party, and its successors and assigns, receiving title to the Property through a trustee's sale,
judicial foreclosure sale, or deed in lieu of foreclosure of such senior deed of trust or mortgage
which is given in connection with such refinancing, and any conveyance or transfer thereafter,
shall receive title free and clear of the provisions of this Declaration.
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.
tdfonn.doc Page 11 of 16
. . 37310
IN WITNESS WHEREOF, Borrower has executed this Deed of Trust.
Date: '7 { Z ß / ö~
Date: 7lz410~
I
tdfonn.doc Page 12 of 16
. . 37311
DEED OF TRUST RIDER
THIS DEED OF TRUST RIDER (herein "Rider") is attached to and made a part
of the Deed of Trust dated , 2003 made between the CITY OF
ENCINITAS, a municipal corporatio herein "CITY") and executed by James L. McDonald,
Jr. and Rebecca E. Soto as Borrower.
Borrower agrees to the provisions of this Deed of Trust Rider in addition to those
of the Deed of Trust. THE LANGUAGE OF THIS RIDER PREYAILS OYER THE DEED OF
TRUST IN THE EYENT OF A CONFLICT.
1. Borrower agrees that the Property being purchased is affordable as
described in the Deed, and that the continued use of the Propert must be in accordance with
the Declaration of Covenants, Conditions and Restrictionsdated<!l\ ~J ~Oò3and that no
transfer of the Property will be permitted and no successor-in-inter stto the Borrower(s) will
be permitted to assume the loan of Borrower(s) evidenced by the Note secured by this Deed
of Trust Rider, unless the written consent of CITY to the transfer has been first obtained. No
such consent will be given by CITY except in the following limited circumstances:
(a) the transfer results from the death of a Borrower and the transfer
is to the surviving spouse of the Borrower and the surviving spouse is also a
Borrower;
(b) a transfer by a Borrower to his or her spouse when the spouse
becomes, by such a transfer, a co-owner of the Property;
(c) a transfer of the Property resulting from a decree of dissolution of
the marriage or legal separation or from a property settlement agreement
incidental to such a decree which requires the Borrower to continue to make
payments on the Note and by which a spouse who is already a Borrower
becomes the sole owner of the Property;
(d) a transfer by a Borrower to an inter vivos trust in which the
Borrower is the sole beneficiary; and/or,
(e) a transfer in accordance with the ownership restrictions contained
in paragraphs 16,17 and 18 of the Deed ofTrust.
2. This Deed of Trust is subordinate to any deed of trust or mortgage on the Property
made by or held by an institutional lender or investor.
tdfonn.doc Page 13 of 16
. . 37312
NOTICE TO BORROWER:
Do not sign this Deed of Trust Rider if it contains blank spaces. All spaces
should be completed before you sign.
Date: 7/¿"¡{ /ð~
Date: ~ldI6~
tdfonn,doc Page 14 of 16
. . 37313
ACKNOWLEDGMENT
State of California )
County of San Diego )
. on'\\1\~ Q?, . 2003, before me. !\.\(In(JJ ~O<:'Q& personally appeared.
\.\('\('1\" <:., J-.. ['Í\(\ 1\ìM\ d ¡Je [JÇ1oull"lly lulunli to me (or proved to me on the
basis of satisfactory evidence) to be the personfsTwhose nameW is/_subscribed to the within
instruments "DEED OF TRUST" and "DEED OF TRUST RIDER" and acknowledged to me that
he/she/they cxecuted the same in his/~ authorized capacity(ies1-, and that by his/hef.4hcix
signatureW-on the instrument the persontsJ, or the entity on behalf of which the personts}-acted,
executed the instrument.
WITNESS my hand and official seal. ~ - : - - - ~crm~ ;o;'s- - ~
~ '::£ -, Commission # 1316825 z
Signature rll'i'o( I ! } (J!.[V,/J ~ N olary Public - California ~
Z San Diego County
-Q I I -- MyComm. ExpiresAug 6, 2005
My commission expires 0 5" òS
ACKNOWLEDGMENT
On ,\ 1.1 \~ ó;) & .2003, before me, 1\\(\(\( ~ \ . RoSt:L"; personally appeared.
~ebe('cc:.. E - 'Som peIsol14lly lu,vnli to me (or proved to me on the
basis of satisfactory evidence) to be the persontsj- whose nameW- isfare-subscribed to the within
instruments "DEED OF TRUST" AND "DEED OF TRUST RIDER" and acknowledged to me that
---helshe/they executed the same in-itisfher/their authorized capacity6es}, and that by -hislher/th8it:-
signaturefs1-on the instrument the perso~ or the entity on behalf of which the person(st acted,
executed the instrument.
WITNESS my hand and official seal. (Seal)
Signatu>Y¡r¡ 1)'1( 1 ( ~ )\IO-:)"/J ~ - - - - ~ ~. ;O;::AS- - ~
I / ------ Comm,sslon#1316825 z
My commission expires "'ð ~ ¡Y5 ~ ,..,; Notary Public - California ~
J Sail Diego County t
- - - ~y:o:m;..~,,:A~5.:.2~
tdfonn.doc Page 15 of 16
, 8 8
. EXHIBIT A
. 3t7314
(ASSESSOR'S PARCEL NO. 262-160-20)
PARCEL 1:
AN UNDIVIDED ONE-SIXTH FOURTH (1/64TH) FRACTIONAL INTEREST AS TENANT-IN-COMMON
IN AND TO
LOT 1 OF COUNTY OF SAN DIEGO TRACT 3960, IN THE CITY OF ENCINITAS, IN THE
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 10675
THEREOF, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY,
CALIFORNIA, JULY 8, 1983, TOGETHER WITH ALL THAT PORTION OF LOT 10 OF COUNTY
OF SAN DIEGO TRACT 3960 MAP NO. 10675, IN THE CITY OF ENCINITAS, COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF, RECORDED IN THE OFFICE
OF THE COUNTY RECORDER OF SAID COUNTY JULY 8, 1983, DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF LOT 10 AS SHOWN ON SAID MAP, SAID
POINT BEING ON THE WESTERLY LINE OF EL CAMINO REAL; THENCE LEAVING SAID POINT
SOUTHWESTERLY ON THE LINE COMMON TO SAID LOT 10 AND LOT 1 AS SHOWN ON SAID MAP
ALONG THE ARC OF A CURVE CONCAVE NORTHWESTERLY WITH A RADIUS OF 20.00 FEET, A
RADIAL LINE TO THE LAST SAID POINT BEARS SOUTH 89°20'51" EAST; THENCE
SOUTHWESTERLY ALONG THE ARC OF LAST SAID CURVE A DISTANCE OF 28.30 FEET
THROUGH A CENTRAL ANGLE OF 81005'14" TO A POINT THAT IS TANGENT TO A CURVE WITH
RADIUS OF 122.00 FEET CONCAVE SOUTHERLY, A RADIAL LINE TO SAID POINT ON THE
LAST SAID CURVE BEARS NORTH 08°15'37" WEST; THENCE WESTERLY ALONG THE ARC OF
THE LAST SAID CURVE A DISTANCE OF 67.05 FEET THROUGH A CENTRAL ANGLE OF
31°29'23" TO A POINT ON A TANGENT LINE; THENCE ALONG SAID LINE SOUTH 50°15'00"
WEST A DISTANCE OF 82.87 FEET TO A TANGENT 128.00 FOOT RADIUS CURVE CONCAVE
NORTHERLY, A RADIAL TO SAID POINT BEARS SOUTH 39°45'00" EAST; THENCE WESTERLY
ALONG THE ARC OF LAST SAID CURVE A DISTANCE OF 15.49 FEET THROUGH A CENTRAL
ANGLE OF 06°55'58" TO THE MOST SOUTHERLY CORNER OF LOT 1; THENCE LEAVING SAID
LINE COMMON TO LOT 1 AND LOT 10 SOUTHEASTERLY INTO LOT 10 ALONG A RADIAL LINE
TO THE LAST SAID CURVE SOUTH 32°49'02" EAST A DISTANCE OF 78.04 FEET TO A POINT
ON THE SOUTHERLY LINE OF LOT 10; THENCE SOUTH 89°24'55" EAST A DISTANCE OF
109.51 FEET TO THE MOST SOUTHEASTERLY CORNER OF SAID LOT 10 TO ITS
INTERSECTION WITH THE WESTERLY LINE OF EL CAMINO REAL; THENCE NORTHERLY ALONG
SAID WESTERLY LINE NORTH 00°39'09" EAST A DISTANCE OF 175.36 FEET TO THE TRUE
POINT OF BEGINNING.
EXCEPTING THEREFROM ALL LIVING UNITS, AS SHOWN AND DEFINED IN THAT CERTAIN
CONDOMINIUM PLAN ENTITLED "TORREY PINES RACQUET CLUB PHASE 1 CONDOMINIUM PLAN"
RECORDED ON JULY 9, 1986, AS FILE/PAGE NO. 1986-281772, IN THE OFFICE OF THE
SAN DIEGO COUNTY RECORDER, CALIFORNIA (HEREAFTER THE "CONDOMINIUM PLAN").
ALSO EXCEPTING THEREFROM THE RIGHT TO POSSESSION OF ALL THOSE AREAS DESIGNATED
AS "EXCLUSIVE USE AREAS" AS DESCRIBED ON THE CONDOMINIUM PLAN REFERRED TO
ABOVE AND THE DECLARATION DESCRIBED HEREAFTER.
PARCEL 2:
LIVING UNIT 57L, AS SHOWN ON THAT CERTAIN CONDOMINIUM PLAN REFERRED TO IN
PARCEL 1 ABOVE:
PARCEL 3:
THE EXCLUSIVE RIGHT TO THE USE, POSSESSION AND OCCUPANCY OF THOSE PORTIONS OF
PARCEL 1 DESCRIBED IN THE DECLARATION AND/OR THE CONDOMINIUM PLAN AS
"EXCLUSIVE USE AREAS" WHICH SHALL BE APPURTENANT TO PARCEL 2 DESCRIBED ABOVE.
-
NOTICE: This Note may require payment of principal and interest upon the sale
or transfer of the property or upon a prepayment.
NOTE
~u \~ (~8 ,2003 San Diego, California
1760 S. EI Camino Real #D205, Encinitas, California 92024
1. Borrower's Promise to Pay. In return for a loan that I have
received, I promise to pay One Hundred Three Thousand Four Hundred and Ninety-
Three U.S. Dollars ($103.493) (herein "principal") to the order of the CITY OF
ENCINITAS, a Municipal Corporation (herein "Lender"). I understand that Lender may
transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled
to receive payments under this Note may be called "Note Holder".
2. No. Interest. This Note will bear no interest unless I default under
the terms of this Note, the Deed of Trust securing it and/or the Covenants, Conditions and
Restrictions affecting the Property. In the event of default, interest from the date of
recordation of the Deed of Trust securing this Note shall be calculated at ten percent
(10%) per annum.
3. Payments. I will make any payments at Lender's offices located at
505 S. Vulcan Avenue, Encinitas, California 92024.
This Note is due and payable, including the principal and interest thereon, if
any, upon default by me, or when a Prohibited Transfer occurs as defined in the Deed of
Trust. This Note will be forgiven on the date which is fifty-five (55) years after the
recordation of the Deed of Trust securing this Note, if the Borrower has not defaulted or
made a Prohibited Transfer of the Property, or any portion thereof.
4. This Note Secured by a Deed of Trust. In addition to the
protection given to Note Holder under this Note, a Deed of Trust dated the same day as
this Note protects Note Holder from possible losses which might result if I do not keep the
promises which I make in this Note. That Deed of Trust describes how and under what
conditions I may be required to make immediate payment in full of all amounts that I owe
under this Note.
5. Borrower's Waiver. I waive my rights to require Note Holder to do
certain things. Those things are:
SCANNED
.
. .
NOTICE TO BORROWER:
Do not sign this Note if it contains blank spaces. All spaces should be
completed before you sign.
The Note Rider executed by Borrower is attached hereto and made a part
of this Note.
Date: '7 / 'L~ jO5
Date: 7 /zcz If) ~
I /
(SIGN ORIGINAL ONLY)
notefonn.doc Page 3 of 8
. .
NOTE RIDER
THIS NOTE RIDER is attached to and made a part of the Note
dated~, 2003 made payable to the CITY OF ENCINITAS ("CITY") as
Lender and xecuted by Borrower.
1. Borrower agrees to the provisions of this Note Rider in addition to
those of the Note. THE LANGUAGE OF THIS RIDER PREVAILS OVER THE
PROMISSORY NOTE IN THE EVENT OF A CONFLICT.
2. Transfer. Conveyance of Property Restricted for Eifiï.:five (55)
Years. The sale, transfer and/or conveyance of the Property is restricted as follows:
If Borrower sells, transfers or conveys the Property less than fifty-five
(55) years after the date of recordation of the Deed of Trust securing this Note Rider, then
said sale, conveyance and/or transfer shall be subject to the following:
(a) 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 for
the San Diego metropolitan area, as adjusted for family size,
and verified by CITY.
(b) Except as provided in Paragraph 2(d) hereof, the Property
must be used only as the principal residence of the
subsequent purchaser during the time of ownership.
(c) 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 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, for a
family of four (4).
(d) 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
notefonn.doc Page 4 of 8
. .
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 anyone 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.
(e) The affordability requirement shall remain in effect for a total
of fifty-five (55) years, measured from the date of recordation
of the Deed of Trust securing this Note Rider. 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.
(f) 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 2a through 2d, inclusive, before
the end of the affordability term as defined in paragraph 2,
then such transfer shall be deemed a Prohibited Transfer as
noteform.doc Page 5 of 8
. .
defined in Paragraph 3 hereof.
These provisions of paragraph 2 shall bind the heirs, successors and assigns of the
Borrower.
3. Prohibited Transfer. If Borrower sells, agrees to sell, conveys,
rents and/or transfers the Property in violation of the terms of Paragraph 2 hereof and
Paragraphs 16 and 17 of the Second Deed of Trust, 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 proYide 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 3 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.
4. Warranties of Borrower. Borrower warrants to CITY as follows:
(a) Borrower's household annual gross income does not exceed
eighty percent (80%) 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 latter of:
(1) the date of occupancy of the Property; or,
(2) the date of the recordation of the Deed of Trust.
notefonn.doc Page 6 of 8
- .
(b) Except as provided in Paragraph 16 of the Deed of Trust for
so long as Borrower owns the Property, Borrower will reside in the Property
as Borrower's principal place of residence and will not rent, lease or sublet
the Property during the term of the Declaration, i.e., fifty-fiye (55) years after
the date if recordation of the Deed of Trust securing this Note Rider.
5. Subordinate to Senior Deed of Trust This Declaration is subordinate to any
deed of trust or mortgage on the Property, which deed of trust is senior in recording
priority to this Declaration, and is 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.
Any party, and its successors and assigns, receiving title to the Property through a
trustee's sale, judicial foreclosure sale, or deed in lieu of foreclosure of such senior deed
of trust or mortgage which is given in connection with such refinancing, and any con-
veyance or transfer thereafter, shall receive title free and clear of the provisions of this
Declaration.
NOTICE TO BORROWER:
Do not sign this Note Rider if it contains blank spaces. All spaces should be
completed before you sign.
Date: 7/Z-ß/D3
Date: (/2~ló~
notefonn.doc Page 7 of 8
-
. .
ACKNOWLEDGMENT
State of California )
County of San Diego )
On ~,,\~ i)Z ,2003, before me. J'J~"(j ,\. ~=", personally appeared,
\~a ffi~ ~ L. f'fìQ.l)orvJd --\Q ef'3oftftll:y knovv'ft to file (or proved to me
on the basis of satisfactory evidence) to be the personfst-whose namets}- is/are-subscribed to the
within instrument "NOTE" and acknowledged to me that he/she/they executed the same in
his/hcr/thoir authorized capacity(ies}., and that by his/her/their signaturefsj-on the instrument the
personfst-, or the entity on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
SignatuT~ 'Y) U I ~f\ ~~ NANCYJ.ROSAS
Commission # 1316825 z
Notary Public - California ~
San Diego County
My commission expires ~ /~I òZ:: My Comm. Expires Aug 5, 2005
ACKNOWLEDGMENT
.' On ~ ~ tv 2003, before me, ¡., Ie¡ f)( j j . : tDiSpersonally appeared,
kbr(ì(' - - ersonally kllUWll tô me (or proved to me
on the basis of satisfactory evidence) to be the personfs}whose name(s)-isfare-subscribed to the
within instrument "NOTE" and acknowledged to me that-hefshe/tlrey-executed the same in
-ftt8fher/their authorized capacit~, and that byffislher/thcir signaturefst on the instrument the
persozW-, or the entity on behalf of which the personfst-acted, executed the instrument.
WITNE S my hand and official seal. (Seal)
Signature
My commission expires
notefonn.doc Page 8 of 8