2001-788743 '"
,, Recording requested by
DOC -07B8743
OCT 50, 2001 4:59
FREE RECORDING REQUESTED ~[IClt ~
PURSUANT TO GOV. CODE SECTION ~ ~I~ C~T~ ~[~'8
27383 ~ J. ~I~, ~
O2246 FE8: 0.~
Recording Requested By And When
Re~orded Mail To:
C
ommuni~ Development
505 S. Vulcan Avenue
? Encinitas, CA 92024 ~00~-0z~r4a
DEED OF TRDST IS SDBO~I~ATE i~ I~ DEED OF TRUST
SECOND POSITIO~ TO THE DEED 0F TROST I~
HERE~ITBTUE ~0D~T OF $115,000.00 RECO~I~G CO~CO~E~TLY ~ ~ ~
THIS DEED OF TRUST is marlo this ~ day of ~, 200~, among
the Trustor, ~ARIA lHfiRfiS~ 818ON (heroin "Borrower"), and FIRST AMERICAN
COMPANY (herein "Trusteo"), and the Benoficia~, Gl~ OF ENGINITAS (herein
whoso address is 505 S. Vulcan Avonuo, Encinitas, California ¢2024.
BORROWER, in consideration of the indobtodnoss herein recited and the trust
horein created, irrevocably grants and conveys to Trustoo, in trust, with powor of salo, the
following described propo~ located in tho Ooun~ 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
leasehold) are hereinafter referred to as the "Property";
TO SECURE to CIT~ tine^ repayment of the indebtedness evidenced by
Borrower's Promissory Note dated [)d,{-~l~z~ 5, 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,
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 Mortgaqes and Deeds of Trust; Charges, Liens. Borrower shall
perform all of Borrower's obligations under any mortgage, deed of trust or other security
buyerdeed.doc Page 2 of 12
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.
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 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
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
buyerdeed.doc Page 3 of 12
02 467
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. Condemnatiort 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
or CITY when given in the manner designated herein.
13. Governin.q 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
buyerdced.do¢ Page 4 of 12
02246S
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 Right 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:
If Borrower sells, transfers or conveys the Property less than thirty (30)
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) Within twenty (20) years after the date of recordation of the 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 the 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 2(d) hereof, the Property must
be used only as the principal residence of the subsequent
purchaser during the time of ownership.
(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
buyerdeec[doe Page 5 of 12
022~69
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 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
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 applyto sales of
the Property from the subsequent purchaser to other purchaser(s) during the
buyerdeed.doc Page 6 of 12
0224?0
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 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 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:
buyerdecd.doc Page 7 of 12
(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.
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.
b.ye~a¢,d.aoc Page 8 of 12
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
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.
buyerdeed.doc Page 9 of 12
OZZ4 ?3
Trustee shall reconvey the P~opea'y without warranty and without charge to the person or
persons legally entitled thereto. Such person or persons sba[[ pay ail 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 sba][ 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 sba[[, without conveyance of the
Property, succeed to ail the tit[e, power and duties conferred upon the Trustee herein and by
applicable [aw. This procedure for substitution of trustee sba[[ 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 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.
27. Warranties of Borrower. Borrower warrants to CITY as follows:
(a) That Borrower's 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 latter of:
(1) the date of initial occupancy of the Property; or,
(2) the date of the recordation of this Deed of Trust.
(b) 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.
28. Subordinate to Senior Deed of Trust 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.
Page I0 of 12
REQUEST FOR NOT{CE OF D£FAULT
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, Bo ~wer bas executed this Deed of Trust.
MARIA TI' IERESA SISON
buyerdeed.do¢ Page 11 of 12
AMER/
STATE OF CALIFORN IA '~ ~1,~ 0" }ss.
COUNTY OF ':' }
personally appeared [rjr Q~, ~ (,~ I,[/~z_t, ( g 0._
, p~rson~lly
(or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s) or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand~an~fficia seal.,
Signature
~ ('j[-~'~ ~5.J;J~iNOTARY PUBLiC.CALIFORNIA
~ ~.~J 8AN DIEGO COUNTY
"~ ~,' COMM. EXP. JAN, 31, 2004
(This area f~ off, cial notmial sea~
Title of Document [-'~ ]~
Date of Document No. of Pages .
Other signatures not acknowledged
3oo8 (1/94) (Genera))
First Amedcan T~e Insurance Company
· ' ' ORDER NO. 1271783-8
LEGAL DESCRIFTION
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 ENC1NITAS, 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 00o43'47" 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 00°43'36" 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
00°43'36" 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 90o00'00" EAST, 25.20 FEET TO THE EASTERLY LINE OF SAID PARCEL B;
THENCE ALONG THE EASTERLY LINE THEREOF, SOUTH 00°43'36" 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
DOC
;first Americatt Title
OCT 30, 2001 4:59 PM
FREE RECORDING REQUESTED ~ICI~ ~
PURSUANT TO GOV. CODE SECTION ~ BIE~ ~TY ~R'S ~FI~
27383 ~ ~. ~ITH, ~ E~
~. 0~55 FES: 0.~
Recording Requested By And When
Recorded Mail.To:
Communi~ Development
505 S. Vulcan Avenue 2001.0788742
Encinitas, CA 92024
DECLA~TION OF COVENANTS ~-~ ' ~ ~ ~- ~ ~ -oo ~
J/~ CONDITIONS AND RESTRICTIONS
~%~ '~ [AFFORDABILI~ RESTRICTIONS]
THIS DECLA~TION OF COVENANTS, CONDITIONS AND RESTRICTIONS
(hereafter "Declaration") is made as of this day of ~ ~ , 2001, by MARIA
THERESA SISON (hereafter, "BORROWER" or "DEC~NT"), in connexion with that
ce~ain parcel of real prope~y Cthe Prope~") located in the City of Encinitas, County of San
Diego, Califomia, described in Exhibit "A" a~ached 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"), a copy of which is attached hereto as Exhibit "B", 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 conditioned 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:
1. RESTRICTIVE COVENANTS. BORROWER agrees and covenants, on behalf
of itself and its successors and assigns and each successor-in-interestto 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:
buyerCC&RS.doc I
0224S~
'16.' Lease of Property Probibite~[ Dudag the term of the affordability
restrictions as set forth in Paragraph 17(e) of this Deed of Trust, the 8orrower shah not rent or
sub[et the Property, or any part thereof, to any person and/or entity. [easing of the Propert~
shah be deemed a prohibited transfer of the Property, withia 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) Year,~.
The sale, transfer and/or conveyance of the Property is restricted as follows:
If Borrower sells, transfers or conveys the Property less than thirty (30)
years after the date of recordation of the Deed of Trust, then said sale, conveyance and/or
transfer shall be subject to the following:
(a) Within twenty (20) years after the date of recordation of the 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 the 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 2(d) hereof, the Property must
be used only as the principal residence of the subsequent
purchaser during the time of ownership.
(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
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 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
buyerCC&RS doc Page 2 of 9
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 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 17e, inclusive, before the end of the affordabilityterm 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
buyerCC&RS.doc Page 3 of 9
0: : 4SS
~mmediate 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 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.
26. Covenants, Conditions and Restriction,~ 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. Borrowerwarrants to CITY as follows:
(a) That Borrower's 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 latter of:
(1) the date of initial occupancy of the Property; or,
(2) the date of the recordation of this Deed of Trust.
(b) That for so long as Borrower owns the Property, Borrower will
reside in the Property as Borrower's principal place of residence. Borrower
agrees not to sublet, lease or rent out the Property during the term of this Deed
of Trust.
buyerCC&RS.doc Page 4 of 9
2. TERM. This Declaration shall expire thirty (30) years from the recordation of this
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 LANI3. 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.
buyerCC&RS.dcc Page 5 of 9
0224 0
10. MORTGAGEE PROTECTION, No violation or breach of the covenants,
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 INSURANCF. 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
buyerCC&RS.doc Page 6 of 9
not more frequently than once a year BORROWER shall certify to the CITY that
BORROWER:
(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 SUBORDINATF 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: I~/'-Gf¢I (~ ,MARIATHERESASISON
buyerCC&RS.doc Page 7 of 9
ACKNOWLEDGMENT
State of California )
)
County of San Diego )
On ,2001, before me, sonally appeared,
. ~. .... ,,~,)' r,,[uw], tu i~,~ (~-proved to me on
the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument "COVENANTS, CONDITIONS AND RESTRICTIONS" and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity on behalf of which the
person(s) acted, executed the instrument.
O~ MAcReYANN ANGEL ~
OMM. # 1248357 ~
WITN ESS ~nd off :iai seal. O~NOTARY PUBLIC-CALIFORNIA ~
t / I ~ ~'*4~_ ~ .COMM. EXP. JAN. 31, 2004 '~
Signature i
~ (Seal)
buyerCC&RS.doc Page 8 of 9
ORDER NO. 1271783-8
022463
LEGAL DESCRIFTION
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 00043'47" 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 89014' 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
00043'36" EAST FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 00°43 '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
00°43'36" WEST, 3.82 FEET; THENCE LEAVING SAID WESTERLY LINE, NORTH 82008'38"
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
NOTICE: This Note may require payment of principal and interest upon the sale
or transfer of the property or upon a prepayment.
NOTE
2001 San Diego, California
830 Leucadia Boulevard, Encinitas, California 92024
1. Borrower's Promise to Pay. In return for a loan that I have
received, I promise to pay Two Hundred Ten Thousand U.S. Dollars ($210,000) (herein
"principal") to the order of the CITY OF ENCINITAS, a Municipal Corporation (herein
"Lende('). 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 the greater of
the following amounts 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 thirty (30) 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:
(a) to demand payment of amounts due (known as "pre-
sentment'');
(b) to give notice that amounts due have not been paid (known
as "notice of dishonor"); and,
(c) to obtain any official certification of nonpayment (known as
"protest").
Anyone else who agrees to keep the promises made in this Note, or who
agrees to make payments to Note Holder if I fail to keep my promises under this Note, or
who signs this Note to transfer it to someone else also waives these rights. These
persons are known as "guarantors, sureties and endorsers".
6. Giving of Notices. Any notice that must be given to me under this
Note will be given by delivering it or by mailing it by certified mail addressed to me at the
PropertyAddress above. A notice will be delivered or mailed to me at a different address
if l give a notice of that different address.
Any notice that must be given to the Note Holder under this Note will be
given by mailing it by certified mail to Note Holder at the address stated in paragraph 3
above. A notice will be mailed to Note Holder at a different address if I am given a notice
of that different address.
7. Responsibility of Persons Under This Note, If more than one
person signs this Note, each of us is fully and personally obligated to pay the full amount
owed and to keep all promises made in this Note. Any guarantor, surety or endorser of
this Note (as described in paragraph 5 above) is also obligated to do these things. Note
Holder may enforce its rights under this Note against each of us individually or against all
of us together. This means that any one of us may be required to pay all of the amounts
owed under this Note. Any person who takes over my rights or obligations under this
Note will have all of my rights and must keep all of my promises made in this note. Any
person who takes over the rights and obligations of a guarantor, surety or endorser of this
Note (as described in paragraph 5 above) is also obligated to keep all of the promises
made in this Note.
8. Attorneys' Fees. Upon the breach of the terms of this Note, the
Deed of Trust securing it, and/or the Covenants, Conditions and Restrictions
encumbering the Property, I agree to pay Lender any and all attorneys' fees, court costs,
trustee fees, and any and all other fees and costs incurred by Lender as a result of said
breach and/or default.
noteform.doc Page 2 of 8
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: l0 0 1 , MARIA THERESA SISON
(SIGN ORIGINAL ONLY)
notefotm.doc Page 3 of 8
NOTE RIDER
_ , -[HIS NOTE RIDER is attached to and made a part of the Note
dated ~jC,{'a.~z~ ~., 2001 made payable to the CITY OF ENCINITAS ("CITY") as
Lender and executed 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 Thirty (30)
Years. The sale, transfer and/or conveyance of the Property is restricted as follows:
If Borrower sells, transfers or conveys the Property less than thirty
(30) 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) Within twenty (20) years after the date of recordation of the
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 the 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 2(d) hereof, the Property
must be used only as the principal residence of the
subsequent purchaser during the time of ownership.
(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 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 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
noteform.doc Page 4 of 8
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 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.
(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
noteform.doc Page 5 of 8
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 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 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 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
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 latter of:
(1) the date of occupancy of the Property; or,
noteform.doc Page 6 of 8
(2) the date of the recordation of the Deed of Trust.
(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., thirty (30) years after
the date if recordation of the Deed of Trust securing this Note Rider.
NOTICE TO BORROWER:
Do not sign this Note Rider if it contains blank spaces. All spaces should be
completed before you sign.
Date: ~0[~, ./'~ ~ MARIA THERESA SISON
\
(SIGN ORIGINAL ONLY)
not~fo~m.doc Page 7 of 8
ACKNOWLEDGMENT
State of California )
)
County of San Diego )
On ,0{~ .2001.befo. reme.~L~/~.lt~f~iersonayappeared'
~LV i ~----'~--~Y ~.~A' ~::~ G o l,'~ ~or proved to
me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument "NOTE" AND "NOTE RIDER" and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity0es), and that
by his/her/their signature(s) on the instrument the person(s), or the entity on behalf of
which the person(s} acted, executed the instrument.
WITNESS m~/~nj;I and official
Signature '
(Seal)
,- ~-~ MARYANN ANGEL :~
O~ COMM, # 1248357 ~
0 ~,?~--' ~}NOTARY PUBDC-CALIFORNIA ~
~ ~r-~'~ SAN DIEGO COUNTY 0
~' COMM EXP JAN 31 2004 '"
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