HomeMy WebLinkAboutTavarua Senior Apartments LP; 2011-12-12;DOC tt 2011 -0675586
Recording Requested By:
FIRST AMEHIC/\N TITLE
National Commercial Se rices I 1111111111111111111111111111111111111111111111 IIIII IIIII IIIII IIII IIII
, RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
DEC 15, 2011 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES : 0.00 WAYS: 3
DA: 1 Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008
Attn: Executive Director
PAGES: 13847
1111111111111111111111111111111111111111111111111111111111111111111111111111111111111
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No fee for recording pursuant to
Government Code Section 27383
/\J LS -37·qffJ'
DEED OF TRUST WITH ASSIGNMENT OF RENTS
ANDSECURJTYAGREEMENT
(Tavarua Senior Apartments)
THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS AND SECURITY
AGREEMENT ("Deed of Trust") is made as of De~EHBE'l? 12., 2011, by and among
Tavarua Senior Apartments, L.P., a limited partnership ("Trustor"), First American Title
Company, a California corporation ("Trustee"), and the Carlsbad Redevelopment Agency, a
public body, corporate, and politic ("Beneficiary").
FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions
hereinafter set forth, Trustor's fee interest in the property located in the City of Carlsbad, County
of San Diego, State of California, that is described in the attached Exhibit A, incorporated herein
by this reference (the "Property").
TOGETHER WITH all interest, estates or other claims, both in law and in equity which
Trustor now has or may hereafter acquire in the Property and the rents;
TOGETHER WITH all easements, rights-of-way and rights used in connection therewith
or as a means of access thereto, including (without limiting the generality of the foregoing) all
tenements, hereditaments and appurtenances thereof and thereto;
TOGETHER WITH any and all buildings and improvements of every kind and
description now or hereafter erected thereon, and all property of the Trustor now or hereafter
affixed to or placed upon the Property;
TOGETHER WITH all building materials and equipment now or hereafter delivered to
said property and intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street, open or proposed,
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adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connection with the Property;
TOGETHER WITH all estate, interest, right, title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity, including, but
not limited to, all deposits made with or other security given by Trustor to utility companies, the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including
without limitation, any awards resulting from a change of grade of streets and awards for
severance damages to the extent Beneficiary has an interest in such awards for taking as
provided in Paragraph 4.1 herein;
TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or buildings now erected or
hereafter to be erected on the Property which are necessary to the complete and comfortable use
and occupancy of such building or buildings for the purposes for which they were or are to be
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one herein
described and referred to, and all renewals or replacements thereof or articles in substitution
therefor, whether or not the same are, or shall be attached to said building or buildings in any
manner; and
TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment,
work in process and other personal property to be incorporated into the Property; all goods,
materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other
personal property now or hereafter appropriated for use on the Property, whether stored on the
Property or elsewhere, and used or to be used in connection with the Property; all rents, issues
and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles,
chattel paper, instruments, documents, notes drafts, letters of credit, insurance policies, insurance
and condemnation awards and proceeds, trade names, trademarks and service marks arising from
or related to the Property and any business conducted thereon by Trustor; all replacements,
additions, accessions and proceeds; and all books, records and files relating to any of the
foregoing.
All of the foregoing, together with the Property, is herein referred to as the "Security."
To have and to hold the Security together with acquittances to the Trustee, its successors and
assigns forever.
FOR THE PURPOSE OF SECURING:
(a) Payment of just indebtedness of Trustor to Beneficiary as set forth in the Note
(defined in Article 1 below) until paid or cancelled. Said principal and other payments shall be
due and payable as provided in the Note. Said Note and all its terms are incorporated herein by
reference, and this conveyance shall secure any and all extensions thereof, however evidenced;
and
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(b) Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein; and
( c) Performance of every obi igation, covenant or agreement of Trustor contained
herein and in the Loan Documents (defined in Section 1.2 below).
AND TO PROTECT THE SECURJTY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE 1
DEFINITIONS
In addition to the terms defined elsewhere in this Deed of Trust, the following terms shall
have the following meanings in this Deed of Trust:
Section 1.1 The term "Loan Agreement" means that certain Loan Agreement between
Trustor and Beneficiary, dated of even date herewith providing for the Beneficiary to loan to the
Trustor an amount not to exceed Three Million Seven Hundred Fifty Thousand Dollars
($3,750,000) for the development of the Property.
Section 1.2 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, the Regulatory Agreement, and any other debt, loan or security instruments between
Trustor and the Beneficiary relating to the Property.
Section 1.3 The term "Note" means the promissory note in the principal amount of
Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000) dated of even date herewith
executed by the Trustor in favor of the Beneficiary, the payment of which is secured by this
Deed of Trust. (A copy of the Note is on file with the Beneficiary and terms and provisions of
the Note are incorporated herein by reference.).
Section 1.4 The term "Principal" means the amount required to be paid under the
Note.
Section 1.5 The term "Regulatory Agreement" means the regulatory agreement by and
between the Beneficiary and the Trustor, dated and recorded in the official Records of San Diego
County concurrently herewith.
ARTICLE2
MAINTENANCE AND MODIFICATION OF THE PROPERTY
AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
The Trustor agrees that at all times prior to full payment of the sum owed under the Note,
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the Trustor will, at the Trustor's own expense, maintain, preserve and keep the Security or cause
the Security to be maintained and preserved in good condition. The Trustor will from time to
time make or cause to be made all repairs, replacements and renewals deemed proper and
necessary by it. The Beneficiary shall have no responsibility in any of these matters or for the
making of improvements or additions to the Security.
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all
claims for labor done and for material and services furnished in connection with the Security,
diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation
of labor on the work or construction on the Security for a continuous period of thirty (30) days or
more, and to take all other reasonable steps to forestall the assertion of claims of lien against the
Security of any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary
as its agent (said agency being coupled with an interest) with the authority, but without any
obligation, to file for record any notices of completion or cessation of labor or any other notice
that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the
Loan Documents; provided, however, that Beneficiary shall exercise its rights as agent of Trustor
only in the event that Trustor shall fail to take, or shall fail to diligently continue to take, those
actions as hereinbefore provided.
Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or
claims as Beneficiary shall specify upon laborers, materialmen, subcontractors or other persons
who have furnished or claim to have furnished labor, services or materials in connection with the
Security. Nothing herein contained shall require Trustor to pay any claims for labor, materials or
services which Trustor in good faith disputes and is diligently contesting provided that Trustor,
upon written request of the Beneficiary, shall, within thirty (30) days after the filing of any claim
of lien, record in the Office of the Recorder of San Diego County, a surety bond in an amount 1
and I /2 times the amount of such claim item to protect against a claim of lien.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in
the nature of easements with respect to any property or rights included in the Security except
those required or desirable for installation and maintenance of public utilities including, without
limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law and as
approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
As part of the consideration for the indebtedness evidenced by the Note, Trustor hereby
absolutely and unconditionally assigns and transfers to Beneficiary all the rents and revenues of
the Property including those now due, past due, or to become due by virtue of any lease or other
agreement for the occupancy or use of all or any part of the Property, regardless of to whom the
rents and revenues of the Property are payable. Trustor hereby authorizes Beneficiary or
Beneficiary's agents to collect the aforesaid rents and revenues and hereby directs each tenant of
the Property to pay such rents to Beneficiary or Beneficiary's agents; provided, however, that
prior to written notice given by Beneficiary to Trustor of the breach by Trustor of any covenant
or agreement of Trustor in the Loan Documents, Trustor shall collect and receive all rents and
revenues of the Property as trustee for the benefit of Beneficiary and Trustor to apply the rents
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and revenues so collected to the sums secured by this Deed of Trust with the balance, so long as
no such breach has occurred, to the account of Trustor, it being intended by Trustor and
Beneficiary that this assignment of rents constitutes an absolute assignment and not an
assignment for additional security only. Upon delivery of written notice by Beneficiary to
Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan
Documents, and without the necessity of Beneficiary entering upon and taking and maintaining
full control of the Property in person, by agent or by a court-appointed receiver, Beneficiary shall
immediately be entitled to possession of all rents and revenues of the Property as specified in this
Section 2.3 as the same becomes due and payable, including but not limited to rents then due and
unpaid, and all such rents shall immediately upon delivery of such notice be held by Trustor as
trustee for the benefit of Beneficiary only; provided, however, that the written notice by
Beneficiary to Trustor of the breach by Trustor shall contain a statement that Beneficiary
exercises its rights to such rents. Trustor agrees that commencing upon delivery of such written
notice of Trustor's breach by Beneficiary to Trustor, each tenant of the Property shall make such
rents payable to and pay such rents to Beneficiary or Beneficiary's agents on Beneficiary's
written demand to each tenant therefor, delivered to each tenant personally, by mail or by
delivering such demand to each rental unit, without any liability on the part of said tenant to
inquire further as to the existence of a default by Trustor.
Except as previously approved by the Beneficiary as set forth in the Loan Agreement,
Trustor hereby covenants that Trustor has not executed any prior assignment of said rents, that
Trustor has not performed, and will not perform, any acts or has not executed and will not
execute, any instrument which would prevent Beneficiary from exercising its rights under this
Section 2.3, and that at the time of execution of this Deed of Trust, there has been no anticipation
or prepayment of any of the rents of the Property for more than two (2) months prior to the due
dates of such rents. Trustor covenants that Trustor will not hereafter collect or accept payment
of any rents of the Property more than two (2) months prior to the due dates of such rents.
Trustor further covenant that Trustor will execute and deliver to Beneficiary such further
assignments ofrents and revenues of the Property as Beneficiary may from time to time request.
Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents,
Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy
of Beneficiary's security, enter upon and take and maintain full control of the Property in order to
perform all acts necessary and appropriate for the operation and maintenance thereof including,
but not limited to, the execution, cancellation or modification of leases, the collection of all rents
and revenues of the Property, the making of repairs to the Property and the execution or
termination of contracts providing for the management or maintenance of the Property, all on
such terms as are deemed best to protect the security of this Deed of Trust. In the event
Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of
any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to
the appointment of such receiver. Beneficiary or the receiver shall be entitled to receive a
reasonable fee for so managing the Property.
All rents and revenues collected subsequent to delivery of written notice by Beneficiary
to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan
Documents shall be applied first to the costs, if any, of taking control of and managing the
Property and collecting the rents, including, but not limited to, attorney's fees, receiver's fees,
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premiums on receiver's bonds, costs of repairs to the Property, premiums on insurance policies,
taxes, assessments and other charges on the Property, and the costs of discharging any obligation
or liability of Trustor as lessor or landlord of the Property and then to the sums secured by this
Deed of Trust. Beneficiary or the receiver shall have access to the books and records used in the
operation and maintenance of the Property and shall be liable to account only for those rents
actually received. Beneficiary shall not be liable to Trustor, anyone claiming under or through
Trustor or anyone having an interest in the Property by reason of anything done or left undone by
Beneficiary under this Section 2.3.
If the rents of the Property are not sufficient to meet the costs, if any, of taking control of
and managing the Property and collecting the rents, any funds expended by Beneficiary for such
purposes shall become indebtedness of Trustor to Beneficiary secured by this Deed of Trust
pursuant to Section 3.3 hereof. Unless Beneficiary and Trustor agree in writing to other terms of
payment, such amounts shall be payable upon notice from Beneficiary to Trustor requesting
payment thereof and shall bear interest from the date of disbursement at the rate stated in
Section 3.3.
Any entering upon and taking and maintaining of control of the Property by Beneficiary
or the receiver and any application of rents as provided herein shall not cure or waive any default
hereunder or invalidate any other right or remedy of Beneficiary under applicable law or
provided herein. This assignment of rents of the Property shall terminate at such time as this
Deed of Trust ceases to secure indebtedness held by Beneficiary. The rights of the Beneficiary
under this Section 2.3 are subject to the rights of any senior mortgage lender.
ARTICLE3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
Trustor shall pay, or cause to be paid prior to the date of delinquency, all taxes,
assessments, charges and levies imposed by any public authority or utility company which are or
may become a lien affecting the Security or any part thereof; provided, however, that Trustor
shall not be required to pay and discharge any such tax, assessment, charge or levy so long as (a)
the legality thereof shall be promptly and actively contested in good faith and by appropriate
proceedings, and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant
to this Section 3.1. With respect to taxes, special assessments or other similar governmental
charges, Trustor shall pay such amount in full prior to the attachment of any lien therefor on any
part of the Security; provided, however, if such taxes, assessments or charges may be paid in
installments, Trustor may pay in such installments. Except as provided in clause (b) of the first
sentence of this paragraph, the provisions of this Section 3.1 shall not be construed to require that
Trustor maintain a reserve account, escrow account, impound account or other similar account
for the payment of future taxes, assessments, charges and levies.
ln the event that Trustor shall fail to pay any of the foregoing items required by thi s
Section to be paid by Trustor, Beneficiary may (but shall be under no obligation to) pay the
same, after the Beneficiary has notified the Trustor of such failure to pay and the Trustor fails to
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fully pay such items within seven (7) business days after receipt of such notice. Any amount so
advanced therefor by Beneficiary, together with interest thereon from the date of such advance at
the maximum rate permitted by law, shall become an additional obligation of Trustor to the
Beneficiary and shall be secured hereby, and Trustor agrees to pay all such amounts.
Section 3.2 Provisions Respecting Insurance.
Trustor agrees to provide insurance conforming in all respects to that required under the
Loan Documents during the course of construction and following completion, and at all times
until all amounts secured by this Deed of Trust have been paid and all other obligations secured
hereunder fulfilled, and this Deed of Trust reconveyed.
All such insurance policies and coverages shall be maintained at Trustor's sole cost and
expense. Certificates of in surance for all of the above insurance policies, showing the same to be
in full force and effect, shall be delivered to the Beneficiary upon demand therefor at any time
prior to the Beneficiary's receipt of the entire Principal and all amounts secured by this Deed of
Trust. Trustee is aware that California Civil Code Section 2955.S(a) provides as follows: No
lender shall require a borrower, as a condition of receiving or maintaining a loan secured by real
property, to provide hazard insurance coverage against risks to the improvements on that real
property in an amount exceeding the replacement value of the improvements on the property.
Section 3.3 Advances.
In the event the Trustor shall fail to maintain the full insurance coverage required by this
Deed of Trust or shall fail to keep the Security in accordance with the Loan Documents, the
Beneficiary, after at least seven (7) days prior notice to Beneficiary, may (but shall be under no
obligation to) take out the required policies of insurance and pay the premiums on the same or
may make such repairs or replacements as are necessary and provide for payment thereof; and all
amounts so advanced therefor by the Beneficiary shall become an additional obligation of the
Trustor to the Beneficiary (together with interest as set forth below) and shall be secured hereby,
which amounts the Trustor agrees to pay on the demand of the Beneficiary, and if not so paid,
shall bear interest from the date of the advance at the lesser of eight percent (8%) per annum or
the maximum rate permitted by law.
ARTICLE4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 A wards and Damages.
All judgments, awards of damages, settlements and compensation made in connection
with or in lieu of(]) taking of all or any part of or any interest in the Property by or under
assertion of the power of eminent domain, (2) any damage to or destruction of the Property or in
any part thereof by insured casualty, and (3) any other injury or damage to all or any part of the
Property ("Funds") are hereby assigned to and shall be paid to the Beneficiary by a check made
payable to the Beneficiary. The Beneficiary is authorized and empowered (but not required) to
collect and receive any funds and is authorized to apply them in whole or in part upon any
indebtedness or obligation secured hereby, in such order and manner as the Beneficiary shall
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determine at its sole option. The Beneficiary shall be entitled to settle and adjust all claims under
insurance policies provided under this Deed of Trust and may deduct and retain from the
proceeds of such insurance the amount of all expenses incurred by it in connection with any such
settlement or adjustment. All or any part of the amounts so collected and recovered by the
Beneficiary may be released to Trustor upon such conditions as the Beneficiary may impose for
its disposition, and Beneficiary agrees to release Funds to Trustor to be used for the restoration
of the Project so long as Beneficiary is reasonably satisfied that the proceeds of insurance,
together with any additional proceeds made available by Trustor, are sufficient to restore the
Project, subject to the rights of any senior mortgage lender. Application of all or any part of the
Funds collected and received by th e Beneficiary or the release thereof shall not cure or waive any
default under this Deed of Trust. The rights of the Beneficiary under this Section 4.1 are subject
to the rights of any senior mortgage lender.
ARTICLE 5
AGREEMENTS AFFECTING THE PROPERTY; FURTHER
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
Section 5.1 Other Agreements Affecting Property.
The Trustor shall duly and punctually perform all terms, covenants, conditions and
agreements binding upon it under the Loan Documents and any other agreement of any nature
whatsoever now or hereafter involving or affecting the Security or any part thereof.
Section 5.2 Agreement to Pay Attorneys' Fees and Expenses.
In the event of any Event of Default (as defined below) hereunder, and if the Beneficiary
should employ attorneys or incur other expenses for the collection of amounts due or the
enforcement of performance or observance of an obligation or agreement on the part of the
Trustor in this Deed of Trust, the Trustor agrees that it will, on demand therefor, pay to the
Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so incurred
by the Beneficiary; and any such amounts paid by the Beneficiary shall be added to the
indebtedness secured by the lien of this Deed of Trust, and shall bear interest from the date such
expenses are incurred at the lesser of ten percent (10%) per annum or the maximum rate
permitted by law.
Section 5.3 Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth
in the Note in the amounts and by the times set out therein.
Section 5.4 Personal Property.
To the maximum extent permitted by law, the personal property subject to this Deed of
Trust shall be deemed to be fixtures and part of the real property and this Deed of Trust shall
constitute a fixtures filing under the California Commercial Code. As to any personal property
not deemed or permitted to be fixtures, this Deed of Trust shall constitute a security agreement
under the California Commercial Code.
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Section 5.5 Financing Statement.
The Trustor shall execute and deliver to the Beneficiary such financing statements
pursuant to the appropriate statutes, and any other documents or instruments as are required to
convey to the Beneficiary a valid perfected security interest in the Security. The Trustor agrees
to perform all acts which the Beneficiary may reasonably request so as to enable the Beneficiary
to maintain such valid perfected security interest in the Security in order to secure the payment of
the Note in accordance with their terms. The Beneficiary is authorized to file a copy of any such
financing statement in any jurisdiction(s) as it shall deem appropriate from time to time in order
to protect the security interest established pursuant to this instrument.
Section 5.6 Operation of the Security.
The Trustor shall operate the Security ( and, in case of a transfer of a portion of the
Security subject to this Deed of Trust, the transferee shall operate such portion of the Security) in
full compliance with the Loan Documents.
Section 5.7 Inspection of the Security.
At any and al I reasonable times upon seventy-two (72) hours' notice, the Beneficiary and
its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall
have the right, without payment of charges or fees, to inspect the Security.
Section 5.8 Nondiscrimination.
The Trustor herein covenants by and for itself, its heirs, executors, administrators, and
assigns, and all persons claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of race, color, creed,
religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor shall the Trustor
itself or any person claiming under or through it establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing
covenants shall run with the land.
ARTICLE 6
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance with, and shall not cause or
permit the Property to be in violation of any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions on, under or about the Property
including, but not limited to, soil and ground water conditions. Trustor shall not use, generate,
manufacture, store or dispose of on, under, or about the Property or transport to or from the
Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or
related materials, including without limitation, any substances defined as or included in the
definition of "hazardous substances," hazardous wastes," "hazardous materials," or "toxic
substances" under any applicable federal or state laws or regulations (collectively referred to
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hereinafter as "Hazardous Materials") except such of the foregoing as may be customarily kept
and used in and about multifamily residential property.
Trustor shall immediately advise Beneficiary in writing if at any time it receives written
notice of (i) any and all enforcement, cleanup, removal or other governmental or regulatory
actions instituted, completed or threatened against Trustor or the Property pursuant to any
applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous
Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party
against Trustor or the Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii)
above hereinafter referred to a "Hazardous Materials Claims"); and (iii) Trustor's discovery of
any occurrence or condition on any real property adjoining or in the vicinity of the Property that
could cause the Property or any part thereof to be classified as "border-zone property" under the
provision of California Health and Safety Code, Sections 25220 et seq., or any regulation
adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Hazardous Materials Law.
Beneficiary shall have the right to join and participate in, as a party if it so elects, any
legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to
have its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall
indemnify and hold harmless Beneficiary and its boardmembers, supervisors, directors, officers,
employees, agents, successors and assigns from and against any loss, damage, cost, expense or
liability directly or indirectly arising out of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about
the Property including without limitation: (a) all foreseeable consequential damages; (b) the costs
of any required or necessary repair, cleanup or detoxification of the Property and the preparation
and implementation of any closure, remedial or other required plans; and (c) all reasonable costs
and expenses incurred by Beneficiary in connection with clauses (a) and (b), including but not
limited to reasonable attorneys' fees.
Without Beneficiary's prior written consent, which shall not be unreasonably withheld,
Trustor shall not take any remedial action in response to the presence of any Hazardous
Materials on, under or about the Property, nor enter into any settlement agreement, consent
decree, or other compromise in respect to any Hazardous Material Claims, which remedial
action, settlement, consent decree or compromise might, in Beneficiary's reasonable judgement,
impair the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's
prior consent shall not be necessary in the event that the presence of Hazardous Materials on,
under, or about the Property either poses an immediate threat to the health, safety or welfare of
any individual or is of such a nature that an immediate remedial response is necessary and it is
not reasonably possible to obtain Beneficiary's consent before taking such action, provided that
in such event Trustor shall notify Beneficiary as soon as practicable of any action so taken.
Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if
either (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Trustor
will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required
action; (iii) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no
reasonable alternative to such remedial action which would result in less impairment of
Beneficiary's security hereunder; or (iv) the action has been agreed to by Beneficiary.
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The Trustor hereby acknowledges and agrees that (i) this Article is intended as the
Beneficiary's written request for information (and the Trustor's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warranty in this Deed of Trust or any of the other
Loan Documents (together with any indemnity applicable to a breach of any such representation
and warranty) with respect to the environmental condition of the property is intended by the
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code
of Civil Procedure Section 736.
In the event that any portion of the Property is determined to be "environmentally
impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or
to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section
726.S(e)(l)), then, without otherwise limiting or in any way affecting the Beneficiary's or the
Trustee's rights and remedies under this Deed of Trust, the Beneficiary may elect to exercise its
rights under California Code of Civil Procedure Section 726.S(a) to (1) waive its lien on such
environmentally impaired or affected portion of the Property and (2) exercise (a) the rights and
remedies of an unsecured creditor, including reduction of its claim against the Trustor to
judgment, and (b) any other rights and remedies permitted by law. For purposes of determining
the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil
Procedure Section 726.S(a), the Trustor shall be deemed to have willfully permitted or
acquiesced in a release or threatened release of hazardous materials, within the meaning of
California Code of Civil Procedure Section 726.S(d)(l), if the release or threatened release of
hazardous materials was knowingly or negligently caused or contributed to by any lessee,
occupant, or user of any portion of the Property and the Trustor knew or should have known of
the activity by such lessee, occupant, or user which caused or contributed to the release or
threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred
by the Beneficiary in connection with any action commenced under this paragraph, including any
action required by California Code of Civil Procedure Section 726.S(b) to determine the degree
to which the Property is environmentally impaired, plus interest thereon at the rate specified in
the Note until paid, shall be added to the indebtedness secured by this Deed of Trust and shall be
due and payable to the Beneficiary upon its demand made at any time following the conclusion
of such action.
ARTICLE 7
EVENTS OF DEFAULT AND REMEDIES
Section 7.1 Events of Default.
The following shall constitute Events of Default following the expiration of any
applicable notice and cure periods: (1) failure to make any payment to be paid by Trustor under
the Loan Documents; (2) failure to observe or perform any ofTrustor's other covenants,
agreements or obligations under the Loan Documents, including, without limitation, the
provisions concerning discrimination; or (3) failure to make any payment or perform any of
Trustor's other covenants, agreements, or obligations under any other debt instruments or
regulatory agreement secured by the Property, which default shall not be cured within the times
and in the manner provided therein.
IO I 0\20\406821.21 M 11
13858
Section 7 .2 Acceleration of Maturity.
If an Event of Default shall have occurred and be continuing, then at the option of the
Beneficiary, the amount of any payment related to the Event of Default and the unpaid Principal
of the Note shall immediately become due and payable, upon written notice by the Beneficiary to
the Trustor (or automatically where so specified in the Loan Documents), and no omission on the
part of the Beneficiary to exercise such option when entitled to do so shall be construed as a
waiver of such right.
Section 7.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default shall have occurred and be continuing, the Beneficiary may:
(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its
security, enter upon the Security and take possession thereof (or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts which it deems
necessary or desirable to preserve the value or marketability of the Property, or part thereof or
interest therein, increase the income therefrom or protect the security thereof. The entering upon
and taking possession of the Security shall not cure or waive any Event of Default or Notice of
Default (as defined below) hereunder or invalidate any act done in response to such Default or
pursuant to such Notice of Default and, notwithstanding the continuance in possession of the
Security, Beneficiary shall be entitled to exercise every right provided for in this Deed of Trust,
or by law upon occurrence of any Event of Default, including the right to exercise the power of
sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof;
( c) Deliver to Trustee a written declaration of default and demand for sale,
and a written notice of default and election to cause Trustor's interest in the Security to be sold
("Notice of Default and Election to Sell"), which notice Trustee or Beneficiary shall cause to be
duly filed for record in the Official Records of San Diego County; or
(d) Exercise all other rights and remedies provided herein, in the instruments
by which the Trustor acquires title to any Security, or in any other document or agreement now
or hereafter evidencing, creating or securing all or any portion of the obligations secured hereby,
or provided by law.
Section 7.4 Foreclosure By Power of Sale.
Should the Beneficiary elect to foreclose by exercise of the power of sale herein
contained, the Beneficiary shall give notice to the Trustee (the "Notice of Sale") and shall deposit
with Trustee this Deed of Trust which is secured hereby (and the deposit of which shall be
deemed to constitute evidence that the unpaid principal amount of the Note is immediately due
and payable), and such receipts and evidence of any expenditures made that are additionally
secured hereby as Trustee may require.
IO l 0\20\40682 I .2JM 12
1 38 59
(a) Upon receipt of such notice from the Beneficiary, Trustee shall cause to be
recorded, published and delivered to Trustor such Notice of Default and Election to Sell as then
required by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after lapse
of such time as may then be required by law and after recordation of such Notice of Default and
Election to Sell and after Notice of Sale having been given as required by law, sell the Security,
at the time and place of sale fixed by it in said Notice of Sale, whether as a whole or in separate
lots or parcels or items as Trustee shall deem expedient and in such order as it may determine
unless specified otherwise by the Trustor according to California Civil Code Section 2924g(b), at
public auction to the highest bidder, for cash in lawful money of the United States payable at the
time of sale. Trustee shall deliver to such purchaser or purchasers thereof its good and sufficient
deed or deeds conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed or any matters of facts shall be conclusive proof of the
truthfulness thereof. Any person, including, without limitation, Trustor, Trustee or Beneficiary,
may purchase at such sale, and Trustor hereby covenants to warrant and defend the title of such
purchaser or purchasers.
(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in connection with such sale, Trustee shall apply the proceeds
of sale to payment of: (i) the unpaid Principal amount of the Note; (ii) all other amounts owed to
Beneficiary under the Loan Documents; (iii) all other sums then secured hereby; and (iv) the
remainder, if any, to Trustor.
( c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
Section 7.5 Receiver.
If an Event of Default shall have occurred and be continuing, Beneficiary, as a matter of
right and without further notice to Trustor or anyone claiming under the Security, and without
regard to the then value of the Security or the interest of Trustor therein, shall have the right to
apply to any court having jurisdiction to appoint a receiver or receivers of the Security (or a part
thereof), and Trustor hereby irrevocably consents to such appointment and waives further notice
of any application therefor. Any such receiver or receivers shall have all the usual powers and
duties of receivers in li ke or similar cases, and all the powers and duties of Beneficiary in case of
entry as provided herein, and shall continue as such and exercise all such powers until the date of
confirmation of sale of the Security, unless such receivership is sooner terminated.
Section 7 .6 Remedies Cumulative.
No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of
Trust is intended to be exclusive of any other right, power or remedy, but each and every such
right, power and remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy given hereunder or now or hereafter existing at law or in equity.
13 IO I 0\20\406821.2JM
1 3860
Section 7.7 No Waiver.
(a) No delay or omission of the Beneficiary to exercise any right, power or
remedy accruing upon any Event of Default shall exhaust or impair any such right, power or
remedy, or shall be construed to be a waiver of any such Event of Default or acquiescence
therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may
be exercised from time to time and as often as may be deemed expeditious by the Beneficiary.
Beneficiary 's expressed or implied consent to a breach by Trustor, or a waiver of any obligation
of Trustor hereunder shall not be deemed or construed to be a consent to any subsequent breach,
or further waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure
on the part of the Beneficiary to complain of any act or failure to act or to declare an Event of
Default, irrespective of how long such failure continues, shall not constitute a waiver by the
Beneficiary of its right hereunder or impair any rights, power or remedies consequent on any
Event of Default by the Trustor.
(b) If the Beneficiary (i) grants forbearance or an extension of time for the
payment of any sums secured hereby, (ii) takes other or additional security or the payment of any
sums secured hereby, (iii) waives or does not exercise any right granted in the Loan Documents,
(iv) releases any part of the Security from the lien of this Deed of Trust, or otherwise changes
any of the terms, covenants, conditions or agreements in the Loan Documents, (v) consents to the
granting of any easement or other right affecting the Security, or (iv) makes or consents to any
agreement subordinating the lien hereof, any such act or omission shall not release, discharge,
modify, change or affect the original liability under this Deed of Trust, or any other obligation of
the Trustor or any subsequent purchaser of the Security or any part thereof, or any maker, co-
signer, endorser, surety or guarantor (unless expressly released); nor shall any such act or
omission preclude the Beneficiary from exercising any right, power or privilege herein granted
or intended to be granted in any Event of Default then made or of any subsequent Event of
Default, nor, except as otherwise expressly provided in an instrument or instruments executed by
the Beneficiary shall the lien of this Deed of Trust be altered thereby.
Section 7.8 Suits to Protect the Security.
The Beneficiary shall have power to (a) institute and maintain such suits and proceedings
as it may deem expedient to prevent any impairment of the Security and the rights of the
Beneficiary as may be unlawful or any violation of this Deed of Trust, (b) preserve or protect its
interest (as described in this Deed of Trust) in the Security, and (c) restrain the enforcement of or
compliance with any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment,
rule or order would impair the Security thereunder or be prejudicial to the interest of the
Beneficiary.
Section 7 .9 Trustee May File Proofs of Claim.
In the case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property,
the Trustee, to the extent permitted by law, shall be entitled to file such proofs of claim and other
documents as may be necessary or advisable in order to have the claims of the Beneficiary
IO I 0\20\40682 I .2JM 14
13 861
allowed in such proceedings and for any additional amount which may become due and payable
by the Trustor hereunder after such date.
Section 7.10 Waiver.
The Trustor waives presentment, demand for payment, notice of dishonor, notice of
protest and nonpayment, protest, notice of interest on interest and late charges, and diligence in
taking any action to collect any sums owing under the Note or in proceedings against the
Security, in connection with the delivery, acceptance, performance, default, endorsement or
guaranty of this Deed of Trust.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Amendments.
This instrument cannot be waived, changed, discharged or terminated orally, but only by
an instrument in writing signed by Beneficiary and Trustor.
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all sums secured hereby have been paid
or forgiven, that all obligations to be performed by the Trustee under the Loan Documents
(including, but not limited to, the operation of the Property in accordance with, and for the entire
term of, the Regulatory Agreement), and upon surrender of this Deed of Trust to Trustee for
cancellation and retention, and upon payment by Trustor of Trustee's reasonable fees, Trustee
shall reconvey the Security to Trustor, or to the person or persons legally entitled thereto.
Section 8.3 Notices.
If at any time after the execution of this Deed of Trust it shall become necessary or
convenient for one of the parties hereto to serve any notice, demand or communication upon the
other party, such notice, demand or communication shall be in writing and shall be served
personally, by reputable overnight delivery service, or by depositing the same in the registered
United States mail, return receipt requested, postage prepaid and (1) if intended for Beneficiary
shall be addressed to:
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008
Attn: Executive Director
and (2) if intended for Trustor shall be addressed to:
IO I 0\20\40682 I .2JM
Tavarua Senior Apartments LP
C/O Meta Housing Corp
1640 Sepulveda Blvd., Ste 425
15
and a copy to:
and a copy to:
Los Angeles, Ca.
Attn: John Huskey
Bocarsly Emden
633 W. Fifth St., 70th Floor
Los Angeles, Ca. 90071
Attn: Lance Bocarsly
Wells Fargo Affordable Housing
Community Development Corporation
MAC Dl-53-170
301 South College Street
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management
13 862
Any notice, demand or communication shall be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either
party may change its address at any time by giving written notice of such change to Beneficiary
or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the
date such change is desired to be effective.
Section 8.4 Successors and Joint Trustors.
Where an obligation is created herein binding upon Trustor, the obligation shall also
apply to and bind any transferee or successors in interest. Where the terms of the Deed of Trust
have the effect of creating an obligation of the Trustor and a transferee, such obligation shall be
deemed to be a joint and several obligation of the Trustor and such transferee. Where Trustor is
more than one entity or person, all obligations ofTrustor shall be deemed to be a joint and
several obligation of each and every entity and person comprising Trustor.
Section 8.5 Captions.
The captions or headings at the beginning of each Section hereof are for the convenience
of the parties and are not a part of this Deed of Trust.
Section 8.6 Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term
or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or
other body of competent jurisdiction, such illegality or invalidity shall not affect the balance of
the terms and provisions hereof, which terms and provisions shall remain binding and
IO I 0\20\40682 I .2JM 16
13863
enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the
debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or
partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure, shall be considered to have been
first paid or applied to the full payment of that portion of the debt which is not secured or
partially secured by the lien of this Deed of Trust.
Section 8.7 Governing Law.
This Deed of Trust shall be governed by and construed in accordance with the laws of the
State of California.
Section 8.8 Gender and Number.
In this Deed of Trust the singular shall include the plural and the masculine shall include
the feminine and neuter and vice versa, if the context so requires.
Section 8.9 Deed of Trust, Mortgage.
Any reference in this Deed of Trust to a mortgage shall also refer to a deed of trust and
any reference to a deed of trust shall also refer to a mortgage.
Section 8.10 Actions.
Trustor agrees to appear in and defend any action or proceeding purporting to affect the
Security.
Section 8.11 Substitution of Trustee.
Beneficiary may from time to time substitute a successor or successors to any Trustee
named herein or acting hereunder to execute this Trust. Upon such appointment, and without
conveyance to the successor trustee, the latter shall be vested with all title, powers, and duties
conferred upon any Trustee herein named or acting hereunder. Each such appointment and
substitution shall be made by written instrument executed by Beneficiary, containing reference to
this Deed of Trust and its place of record, which, when duly recorded in the proper office of the
county or counties in which the Property is situated, shall be conclusive proof of proper
appointment of the successor trustee.
Section 8.12 Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all obligations secured
by this Deed of Trust is hereby waived to the full extent permissible by law.
Section 8.13 Subordination.
The rights and remedies of the Beneficiary under this Deed of Trust shall be subject in all
respects to the terms and conditions of that certain subordination agreement by and among the
Beneficiary, the Trustor, JP Morgan Chase Bank NA and First American Title Company, as
trustee, recorded concurrently herewith.
17 IO I 0\20\406821.21 M
13 864
Section 8.14 Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is
made public record as provided by law. Except as otherwise provided by law the Trustee is not
obligated to notify any party hereto of pending sale under this Deed of Trust or of any action of
proceeding in which Trustor, Beneficiary, or Trustee shall be a party unless brought by Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IO I 0\20\40682 I .2JM 18
13 865
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and
year first above written.
TAVARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
TRUSTOR:
By: Western Community Housing Inc.
Its: Sole Member of the Managing General Partner
By: ~ ~-~ Grah'i;. Espley=:ion~ '------
Its: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administrative General Partner
By:
John M. Huskey
Its: Member
PROPER NOTARIAL ACKNOWLEDGEMENT OF EXECUTION MUST BE ATTACHED
19 IO I 0\20\40682 I .2JM
13866
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of the day and
year first above written.
TRUSTOR:
TAVARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By: Western Community Housing Inc.
Its: Sole Member of the Managing General Partner
By: ------------Graham P. Espley-Jones
Its: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administrative Ge er I Partner
By:
John M. H
Its: Membe
PROPER NOTARIAL ACKNOWLEDGEMENT OF EXECUTION MUST BE ATTACHED
IO I 0\20\40682 l .2JM 19
13 867
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
'$1l\m"-¢:f;ffl~~~~~«~~~
State of California
County of ----'o"-R----'----A_f..1_6_£, ____ _ }
On Peeember f, Jo II
Date '
before me, /...(CPn /)f_ !(a(), f
Here Insert Na
personally appeared ----0~fi,_._0,,_,/2'---'-=t1.-'-'rn----'-_,_/J_,---=['-S---,,,..e=-=t-:':'fJ.c.t{'7--;1 s=:gn:":'-:ZO""'/("""'()-'--=e'"""S'----------
Q LEANNE TRUOFREH
Commission # 1887730 j Notary Public • California f j Orange County -•••••• Ml :oT"1 txere: ~·112-.2~1!(
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(.s) whose name(8") is/are subscribed to the
within instrument and acknowledged to me that
he/&hoAhey executed the same in his/hoF/.thQir authorized
capacity(ie8), and that by his/her/their signature(a:) on the
instrument the person(s)', or the entity upon behalf of
which the person(81 acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
OPTIONAL---------1,------
Though the information below is not required by law. it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: --"D"--€_€_._()-'O-'f:.~T,D. __ {_S_T ________________ _
Document Date: ___________________ Number of Pages: ________ _
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: ____________ _
Individual
Corporate Officer -Title(s):
'I( Partner -Limited 'V.. General
_ Attorney in Fact
Trustee
Guardian or Conservator
Other: ________ _
Signer Is Representing: ___ _
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name: ______________ _
_ Individual
Corporate Officer -Title(s): ________ _
Partner -Limited r General
Attorney in Fact
Trustee
Guardian or Conservator
· Other: __________ _
Signer Is Representing: ____ _
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
@;,.v<,,rn,q(;,v<,,-v.-<,....z<,.~--c<,,g,~™3<,~,e;c'M()(X,"<J<;,'@,"G<;,~~~t<,-wg,__~--Q<,,_~'<.l{;,,'¼Xl(,-y(,-,W:
C2007 National Notary Associabon • 9350 De Soto Ave .. P.O. Box 2402 •Chatsworth.CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder;Call Toll-Free 1-800-876-6827
13868
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT f ~.c<>.c:<".o<'~~.C'(',ex'~~~R,:O,&.c'<'~~~~.,ci'~,0('~1 ~ I ~ State of California } -.: ~ County of LAS ~ Le .s I
I
~ On t-k<!.§½~ ~ "\-il(I before me, \2-:L,vt):GL-~ I l L-U) 1-vt o~v\.. Y P LA. ?J, UC---,~
~1• personally .;::.,.: -J-t ft,J'\\:'.~[: ("'~ •"' '"" • "" "'-~
' Name(s) of Signer(s)
~ i ~
@.
@
@
@
I ~ ~ i ~ ~ @ ~ ~ ~ Place Notary Seal and/or Stamp Above
who proved to me on the basis of satisfactory
evidence to be the person($) whose name(st is/are
subscribed to the within instrument and acknowledged
to me that he/shetttmy executed the same in
his/he#tAetf-authorized capacity(ies), and that by
his/h9rltheir signature(s) on the instrument the
person(e}, or the entity upon behalf of which the
person(~ acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature:-+--=---~--~---,--------
i ~ Though the information below is not required by law, it may prove valuable to persons relying on the document
~ Description of Attached Doc~ {_ 1 ~ Title or Type of Document: ~ 1. 1 µ.,,v( _ ~~ -
I
•I
~ and could prevent fraudulent removal and reattachment of this form to a~nother document.
i Document Date: ___________ 7J ________ Number of ages: ~ ------I
~ Signer(s) Other Than Named Above:________________________ I ~ Capacity(ies) Claimed by Signer(s) ~ Signer's Name:.______________ Signer's Name: ____________ ~
& □ Corporate Officer -Title(s): ________ □ Corporate Officer -Title(s): ________ @
@ I.I 1~ □ Individual □ Individual j □ Partner -□ Limited □ General Top of thumb here □ Partner -□ Limited □ General Top of thumb here
! □ Attorney in Fact □ Attorney in Fact I i, □ Trustee □ Trustee 1
2 □ Guardian or Conservator □ Guardian or Conservator ~ ! □ Other ________ □ Other: ________ ~
~ Signer Is Representing: ____ Signer Is Representing: ____ !
~ i ~ g
l'<-'<.,~~='§(;,'§v"G<;.~~-g,~~~'<'1,<,~~'0(;>'C<,~=~~~~~~'Q(,,.~~i
C2008 National Notary Association• 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827
EXHIBIT A
(Legal Description)
13869
The land is situated in the City of Carlsbad, County of San Diego, State of California, and
is described as follows:
"PARCEL A" AS SHOWN ON CERTIFICATE OF COMPLIANCE WITH CONDITIONS EVIDENCED BY
DOCUMENT RECORDED SEPTEMBER 7, 1993 AS INSTRUMENT NO. 93-0588928 OF OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
ALL OF LOT 5 AND LOT 6 AND THE NORTHERLY 4.85 FEET OF LOT 4 IN BLOCK "B" OF THE
RESUBDIVISION OF A PORTION OF ALLES AVOCADO ACRES, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2027,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 17, 1927,
AND; THAT PART OF THAT PORTION OF LOTS 7 AND 8 IN BLOCK "B" OF THE RESUBDIVISION
OF A PORTION OF ALLES AVOCADO ACRES AS SHOWN ON MAP NO. 2027, ALED IN THE
OFACE OF THE RECORDER OF SAN DIEGO COUNTY, MAY 17, 1927, AS SAID PORTION WAS
CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JANUARY 6, 1967 AS
INSTRUMENT NO. 1884 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY. SAID PART HEREBY
CONVEYED LYING SOUTHWESTERLY OF THAT PORTION OF THE SOUTHWESTERLY LINE OF
THE STATE HIGHWAY 11-SD-5-48.8 DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH BEARS SOUTH 67 DEGREES 26' 53" WEST, 108.72 FEET FROM
ENGINEER'S STATION 178 + 10 OF THE "O" LINE OF THE 1964 SURVEY FOR SAID HIGHWAY
BETWEEN CANNON ROAD AND BUENA VISTA CREEK; THENCE ALONG SAID SOUTHWESTERLY
LINE NORTH 22 DEGREES 41' 17" WEST, 344.41 FEET TO NORTHERLY LINE OF PALM AVENUE
SHOWN AS ALLES AVENUE ON SAID MAP NO. 2027; THENCE CONTINUING NORTH 22 DEGREES
41' 17" WEST, 195.59 FEET TO A POINT WHICH BEARS SOUTH 67 DEGREES
26' 53" WEST, 110.00 FEET FROM ENGINEER'S STATION 183 + 50 OF SAID "O" LINE.
APN: 204-192-12-00
A-1 IO I 0\20\406821.1
$3,750,000
PROMISSORY NOTE
(Tavarua Senior Apartments)
Carlsbad, California
[E::2EkBER \ 2-, 2011
FOR VALUE RECEIVED, Tavarua Senior Apartments, L.P, a California limited
partnership ("Borrower"), promises to pay to the Carlsbad Redevelopment Agency, a public
body, corporate, and politic (the "Agency"), or order, the principal sum of up to Three Million
Seven Hundred Fifty Thousand Dollars ($3,750,000), or so much as is disbursed to Borrower,
plus interest thereon pursuant to Section 2 below.
I . Borrower's Obligation. This promissory note ("Note") evidences the
Borrower's obligation to pay the Agency the principal amount of up to Three Million Seven
Hundred Fifty Thousand Dollars ($3,750,000), or so much as is disbursed, for the funds loaned
to the Borrower by Agency to finance the development of the Property pursuant to the Loan
Agreement between the Borrower and the Agency, dated DEC..E:-Me:€ R, 12, 2011 (the
"Agreement"). All capitalized terms not otherwise defined in this Note shall have the meanings
set forth in the Agreement.
2. Interest. The outstanding principal balance of this Note shall bear simple
interest at the rate of three percent (3%) per annum from the date of disbursement until paid;
provided, however, if a Default occurs, interest on the principal balance shall begin to accrue, as
of the date of Default (following expiration of applicable notice and cure periods), and
continuing until such time as the Loan funds are repaid in full or the Default is cured, at the
default rate of the lesser often percent (10%), compounded annually, or the highest rate
permitted by law.
3. Term and Repayment Requirements. The term of this Note shall
commence with the date of this Note and shall expire fifty-five (55) years thereafter. This Note
shall be due and payable as set forth in Section 2.6 of the Agreement. Repayment of this Note
shall be nonrecourse to the Borrower pursuant to Section 2.8 of the Agreement, and subject to
the exceptions set forth therein.
4. No Assumption. This Note shall not be assumable by the successors and
assigns of Borrower without the prior written consent of the Agency, or as set forth in Article 4
of the Agreement.
5. Security. This Note is secured by a Deed of Trust with Assignment of
Rents and Security Agreement (the "Deed of Trust") of even date herewith, wherein the
Borrower is Trustor and the Agency is the Beneficiary, covering the Borrower's fee interest in
the Property.
IO I 0\20\406820.1
' .
6. Terms of Payment.
(a) All payments due under this Note shall be paid in currency of the
United States of America, which at the time of payment is lawful for the payment of public and
private debts.
(b) All payments on this Note shall be paid to the Agency at Carlsbad
Redevelopment Agency, 2965 Roosevelt Street, Suite B, Carlsbad, CA 92008 or to such other
place as the Agency may from time to time designate in writing.
(c) All payments on this Note shall be without expense to the Agency,
and the Borrower agrees to pay all costs and expenses, including re-conveyance fees and
reasonable attorney's fees of the Agency, incurred in connection with the payment of this Note
and the release of any security hereof.
(d) Notwithstanding any other provision of this Note, or any
instrument securing the obligations of the Borrower under this Note, if, for any reason
whatsoever, the payment of any sums by the Borrower pursuant to the terms of this Note would
result in the payment of interest which would exceed the amount that the Agency may legally
charge under the laws of the State of California, then the amount by which payments exceeds the
lawful interest rate shall automatically be deducted from the principal balance owing on this
Note, so that in no event shall the Borrower be obligated under the terms of this Note to pay any
interest which would exceed the lawful rate.
7. Default.
(a) Any of the following shall constitute an Event of Default under
this Note:
(i) Any failure to pay, in full, any payment required under this
Note when due following written notice by the Agency to Borrower and Tax Credit lnvestor of
such failure and thirty (30) days opportunity to cure by Borrower and Tax Credit Investor;
(ii) Any failure in the performance by the Borrower of any
term, condition, provision or covenant set forth in this Note subject to the notice and cure period
set forth in Section 6.1 of the Agreement; and
(iii) The occurrence of any Default under the Agreement, the
Deed of Trust or the Regulatory Agreement (the "Loan Documents"), or other instrument
securing the obligations of the Borrower under this Note or under any other promissory notes
hereafter issued by the Borrower to the Agency pursuant to the Agreement or the Deed of Trust,
subject to notice and cure periods, if any, set forth therein.
(b) Upon the occurrence of such an Event of Default, the entire unpaid
principal balance, together with all interest thereon, and together with all other sums then
payable under this Note and the Deed of Trust shall at the option of the Agency become
immediately due and payable upon written notice by the Agency to the Borrower without further
demand.
IO I 0\20\406820.3
2
' '
(c) The failure to exercise the remedy set forth in Subsection 7(b)
above or any other remedy provided by law upon the occurrence of one or more of the foregoing
events of default shall not constitute a waiver of the right to exercise any remedy at any
subsequent time in respect to the same or any other default. The acceptance by Agency hereof of
any payment which is less than the total of all amounts due and payable at the time of such
payment shall not constitute a waiver of the right to exercise any of the foregoing remedies or
options at that time or at any subsequent time, or nullify any prior exercise of any such remedy
or option, without the express consent of the Agency, except as and to the extent otherwise
provided by law.
(d) The rights and remedies of the Agency under this Note shall be
subject in all respects to the terms and conditions of that certain Subordination Agreement by
and among the Agency, the Borrower and First American Title Company, as Trustee, executed
concurrently herewith.
8. Waivers.
(a) The Borrower hereby waives diligence, presentment, protest and
demand, and notice of protest, notice of demand, and notice of dishonor of this Note. The
Borrower expressly agrees that this Note or any payment hereunder may be extended from time
to time, and that the Agency may accept further security or release any security for this Note, all
without in any way affecting the liability of the Borrower.
(b) No extension of time for payment of this Note or any installment
hereof made by agreement by the Agency with any person now or hereafter liable for payment of
this Note shall operate to release, discharge, modify, change or affect the original liability of the
Borrower under this Note, either in whole or in part.
(c) The obligations of the Borrower under this Note shall be absolute
and the Borrower waives any and all rights to offset, deduct or withhold any payments or charges
due under this Note for any reason whatsoever.
9. Miscellaneous Provisions.
(a) All notices to the Agency, Tax Credit Investor, or the Borrower
shall be given in the manner and at the addresses set forth in the Agreement, or to such addresses
as the Agency and the Borrower may hereinafter designate.
(b) The Borrower promises to pay all costs and expenses, including
reasonable attorney's fees, incurred by the Agency in the enforcement of the provision of this
Note, regardless of whether suit is filed to seek enforcement.
(c) This Note may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change, modification or
discharge is sought.
(d) This Note shall be governed by and construed in accordance with
the laws of the State of California.
IO I 0\20\406820.3 3
. ' ..
(e) The times for the performance of any obligations hereunder shall
be strictly construed, time being of the essence.
(f) This document, together with the Loan Documents, contains the
entire agreement between the parties as to the Loan. It may not be modified except upon written
consent of the parties.
TAVARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By: Western Community Housing, Inc.
Its: Sole Managing Member of the Managing General Partner
By: _________ _
Graham P. Espley-Jones
lts: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administraf e General Partner
By:
John
IO I 0\20\406820.3
4
..
(e) The times for the performance of any obligations hereunder shall
be strictly construed, time being of the essence.
(t) This document, together with the Loan Documents, contains the
entire agreement between the parties as to the Loan. It may not be modified except upon written
consent of the parties.
TAVARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By: Western Community Housing, Inc.
Its: Sole Managing Member of the Managing General Partner
By: s-t.~r& Grah;i;. ~pie;.ioes ...__________
Its: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administrative General Partner
By:
John M. Huskey
Its: Member
IO I 0\20\406820.3 4
Recording Req,JCsted 13y:
FIRST AMEP.:CAN TITLE
National Commercial Se rices
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, Ca. 92008
Attn: Executive Director
DOC ti 2011 -0 675585
I 11111111 1111111111111 11111111111111111111 11111111111111111111 IIII IIII
DEC 15, 2011 4:59 PM
OFFICIAL RECORD S
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 36.00
13 8 3 9 PAGES: 8
1111111 11111111111111111111111111111111111 1111111111 111111111111111 11111 1111111111111
NOTICE OF AFFORDABILITY RESTRICTIONS
ON TRANSFER OF PROPERTY
NOTICE IS HEREBY GIVEN, that the Carlsbad Redevelopment Agency, a public body corporate and politic (the
"Agency"), to carry out certain obligations under the Community Redevelopment Law of the State of California
(Health and Safety Code Section 33000 et. seq.) and the Redevelopment Plan for the Carlsbad Village
Redevelopment Area and the South Carlsbad Coastal Redevelopment Area, has required Tavarua Senior
Apartments, L.P., a California Limited Partnership (the "Owner") to enter into certain affordability covenants
and restrictions entitled, Regulatory Agreement and Declaration of Restrictive Covenants with the Agency and
the City of Carlsbad (the "Restrictions"), with reference to a housing development (the "Development")
situated on the certain real property (the "Property") located at 3568 Harding Street, City of Carlsbad,
Assessor's Parcel No. 204-192-12-00, and further described in Exhibit "A", incorporated herein by reference.
The affordability covenants and restrictions contained in the Restrictions include without limitation and as
further described in the Restrictions:
1. One (1) unit in the Development is restricted for a management unit, as an "other income" household.
2. Thirty-Four (34) units in the Development are restricted for occupancy by lower income households, at
rents affordable to lower income households.
3. Fifteen (15) units in the Developer are restricted for occupancy by very low income households, at
rents affordable to very low income households.
4. Additional requirements concerning operation, management and maintenance of the Development are
also imposed by the Restrictions.
In the event of any conflict between this Notice of Affordability Restrictions on Transfer of Property (the
"Notice") and the Restrictions, the terms of the Restrictions shall prevail.
-------------------Page 1
13840
The Restrictions were recorded concurrently herewith, as Instrument No.~Ol I-Ole 7~C.Yo1 in the Official
Records of San Diego County, and shall remain in effect until fifty-five (55) years after the date of this Notice.
This Notice is being recorded and filed by the Agency in compliance with Health and Safety Code Sections
33334.3(f)(3) and (4) and/or Section 33413(c)(5), as amended effective this date, and shall be indexed against
the Agency and the Owners.
Date: peC1JY1Jz,v:f::i-. I 2011
IN WITNESS WHEREOF, the parties have executed this Notice of Affordability Restrictions on Transfer of
Property on or as of the date first written above.
OWNER:
Tavarua Senior Apartments L.P,
a California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By §,C~
Graham P. E~ nes "'-----------
Its: President
By: Tavarua Senior Apartments, LLC,
a California limited partnership
-------------------Page 2
CITY:
CITY OF CARLSBAD, a municipal corporation
By: _______________ _
Its: ________________ _
AGENCY:
CARLSBAD REDEVELOPMENT AGENCY, a public body
corporate and politic
By: ______________ _
Its ________________ _
13 841
The Restrictions were recorded concurrently herewith, as Instrument No. 'J,ou -o<oJSS~~ in the Official
Records of San Diego County, and shall remain in effect until fifty-five (55) years after the date of this Notice.
This Notice is being recorded and filed by the Agency in compliance with Health and Safety Code Sections
33334.3(f)(3) and (4) and/or Section 33413(c)(5), as amended effective this date, and shall be indexed against
the Agency and the Owners.
Date: [X{fAtv1 blf / ► , ~ ~ \
IN WITNESS WHEREOF, the parties have executed this Notice of Affordability Restrictions on Transfer of
Property on or as of the date first written above.
OWNER:
Tavarua Senior Apartments L.P,
a California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By: ________________ _
Graham P. Es pley-Jones
Its: President
By: Tavarua Senior Apartments, LLC,
a California limited partnership
By: _______________ _
John M . Huskey
Its: Member
------------Page 2
CITY:
Its: CtT'f M ANA,GE.f2.
AGENCY:
CARLSBAD REDEVELOPMENT AGENCY, a public body
corpo?~itic
By:~'-
Its ex r;C.\)T\\JE PhRECTDR
13842
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
~;m~:m~~,-{&'~~~~-00¢(
State of California }
County of ___ O_R-_f+._~_0_£, ____ _
On Decerhb-er t:J,:Joll before me, J (Jfl(., fiucfreA Nrrk_r
Da~ ' ..L..:="-'--'c...:....:..------'---'--=--.:,H:::e,e;;-;l;;::ns=ert;;-;Nc;::a=me'=:--::i.';.,TI,ait';:-le-::;m;-;;the:::-',;Ofhce:ii:c::,-:-f---'-==-..::........:----'
personally appeared __ ___,_0/""12_,,Cl.=A_-=t('-'-'----111---'--_,_r)_.-=f -r;~J)~/ e_...,..,--fc /=-------,-,Jc,-O_rJ_e_S ______ _
IName(s) r/f Signer(s)
LEANNE TRUOFREH
Commission # 1887730
Notary Public • California
Orange County
Comm. Ex Ires Ma 12. 2014
Place Notary Seal Above
z z ~
who proved to me on the basis of satisfactory evidence to
be the person-'8) whose name(.s} is/&e subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/hOF/thoir authorized
capacity(iesy, and that by his/hefltheir signature(s-) on the
instrument the person(8)', or the entity upon behalf of
which the person(s:} acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
TitleorTypeofDocument: No·Hce of fffrord11.J11//b; /(~Jl-1/c-/7{})1.j
Document Date: ___________________ Number of Pages: ________ _
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: ____________ _
Individual
Corporate Officer -Title(s):
('-Partner -_ Limited ,t\General
Attorney in Fact
Trustee
Guardian or Conservator
Other: ________ _
Signer Is Representing: ___ _
RIGHT THUMBPRINT
OF SIGNER
Top of lhumb here
Signer's Name: ______________ _
Individual
Corporate Officer -Title(s): ________ _
Partner -Limited '-:::: General
Attorney in Fact
Trustee
Guardian or Conservator
Other: __________ _
Signer Is Representing: ____ _
RIGHT THUMBPRINT
OFSlGNER
Top of thumb here
%-~~~-v,<,,~v0<X.rntj;.~~m.~--Q00(,"!-X.-'G<;.i,;(,~'¼.,~"<.l(,~~¼-~'tj;,'G<--'(l<,'«
0 2007 National Notary AssociabOn • 9350 De Soto Ave., P.O. Box 2402 • Ctlatsworth, CA 91313-2402 • www.NatlonalNotary.Oll) Item #5907 Reorder Call Toll-Free H I00-876-6827
13843
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
Place Notary Seal and/or Stamp Above
who 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/sAeltAey executed the same in
his/het'AAetr authorized capacity(~). and that by
his/l'lerftheir signature~) on the instrument the
person($), or the entity upon behalf of which the
person(.s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
and official seal.
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: f1A Tf CA:: ~ A-rfelt-Af:'t,{{.,,( TY -Pl(,.+ ,.e..u.,r
Document Date: ___________________ Number of Pages: _____ _
Signer(s) Other Than Named Above: ________________________ _
Capacity(ies) Claimed by Signer(s)
Signer's Name:. _____________ _
□ Corporate Officer -Title(s): _______ _
□ Individual
□ Partner -□ Limited □ General
□ Attorney in Fact
□ Trustee
□ Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name: ___________ _
□ Corporate Officer -Title(s): _______ _
□ Individual
□ Partner -□ Limited □ General
□ Attorney in Fact
□ Trustee
□ Guardian or Conservator
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
I
I
@
02008 National Notary Association• 9350 De Soto Ave .. P.O. Box 2402 •Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE 13844
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of ,5:an::tu~~
On ~QoS: \3 ~II before me, ..-4=,..J....U!.L.e,..l.........;.::,""-'L..i...=.,i---'-~=<..U..JLL...l,-~u...J.-'"""'1...-'-4-+-IJ-=h=....!I...J....'c=------1
personally appeared L \ s ci, tt~ I c\ a b C-anl
who proved to me on the basis of satisfacto1y evidence to be the perso~S, whose name(~are subscribed to
the within instrwnent and acknowledged to me that-he~t,they-executed the same in-his/@tlre-i; authorized
capacity!i,esf, and that by~eirsignaturefs) on the instrument the personts7, or the entity upon behalf of
which the persotJ.{sf acted, executed the instrument.
l certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
.X;b 9 ~~() IV)(}..Q c&~
Signature of Notary Public
(Notary Seal)
SHEILA RENAE COBIAN a Commission# 1848471 z
... Notary Public • California ~ i San Olego County I r O O O O !'¥ c.o'Dmi e:eire; ~al \O}i1:
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages __ Document Date ____ _
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
D Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
D Trustee(s)
D Other _____________ _
2008 Version CAPA vl2.I0.07 800-873-9865 www.NotaryClasses.com
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exact(Y as
appears above in the nota,y section or a separate acknowledgment form must be
proper(y completed and at/ached to thar document. The only exception is if a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the nora,y to do something rhat is illegal for a nota,,· in
California (i.e. cenifying the amhorized capacity of the signe1). Please check the
document carefully for proper notarial wording and a/tach this form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name{s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect fom1s (i.e.
he/she/~ is /8ff>) or circling the correct forms. Failure to correctly indicate this
infom,ation may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal if a
sufficient area permits, otherwise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
❖ Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
❖ Indicate title or type of attached document, number of pages and date.
❖ Indicate the capacity claimed by the signer. If the claimed capacity is a
corporate officer, indicate the title (i.e. CEO, CFO, Secretary).
• Securely attach this document to the signed document
13845
EXHIBIT 'A'
File No.: NCS-399888-SD (MKAM)
Property: 3568 Harding Street, Carlsbad, CA 92008
"PARCEL A" AS SHOWN ON CERTIFICATE OF COMPUANCE WITH CONDITIONS
EVIDENCED BY DOCUMENT RECORDED SEPTEMBER 7, 1993 AS INSTRUMENT NO. 93-
0588928 OF OFFICIAL RECORDS, DESCRIBED AS FOLLOWS:
ALL OF LOT 5 AND LOT 6 AND THE NORTHERLY 4.85 FEET OF LOT 4 IN BLOCK "B" OF
THE RESUBDIVISION OF A PORTION OF ALLES AVOCADO ACRES, IN THE CITY OF
CARLSBAD, COUNTY OF SAN DIEGO, STATE OF CAUFORNIA, ACCORDING TO MAP
THEREOF NO. 2027, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, MAY 17, 1927, AND; THAT PART OF THAT PORTION OF LOTS 7 AND 8 IN
BLOCK "B" OF THE RESUBDIVISION OF A PORTION OF ALLES AVOCADO ACRES AS
SHOWN ON MAP NO. 2027, FILED IN THE OFFICE OF THE RECORDER OF SAN DIEGO
COUNTY, MAY 17, 1927, AS SAID PORTION WAS CONVEYED TO THE STATE OF
CAUFORNIA BY DEED RECORDED JANUARY 6, 1967 AS INSTRUMENT NO. 1884 OF
OFFICIAL RECORDS OF SAN DIEGO COUNTY. SAID PART HEREBY CONVEYED LYING
SOUTHWESTERLY OF THAT PORTION OF THE SOUTHWESTERLY UNE OF THE STATE
HIGHWAY 11-SD-5-48.8 DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH BEARS SOUTH 67 DEGREES 26' 53" WEST, 108.72 FEET
FROM ENGINEER'S STATION 178 + 10 OF THE "O" UNE OF THE 1964 SURVEY FOR SAID
HIGHWAY BETWEEN CANNON ROAD AND BUENA VISTA CREEK; THENCE ALONG SAID
SOUTHWESTERLY LINE NORTH 22 DEGREES 41' 17" WEST, 344.41 FEET TO NORTHERLY
LINE OF PALM AVENUE SHOWN AS ALLES AVENUE ON SAID MAP NO. 2027; THENCE
CONTINUING NORTH 22 DEGREES 41' 17" WEST, 195.59 FEET TO A POINT WHICH
BEARS SOUTH 67 DEGREES
26' 53" WEST, 110.00 FEET FROM ENGINEER'S STATION 183 + 50 OF SAID "O" UNE.
A.P.N. 204-192-12-00
NCS-399888-SD 1 of 1
13846
NOTARY SEAL CERTIFICATION
(Government Code 27361 7)
I CERTIFY UNDER PENALTY OF PERJURY THAT THE NOTARY SEAL ON THE
DOCUMENT TO WHICH THIS STATEMENT IS ATTACHED READS AS FOLLOWS:
Name of the Notary: Ru+z.£\ C\,s t\ \-o
Commission Number: \Gr'l..Q\ \) :) Date Commission Expires:?;i 19 ( 16
County Where Bond is Filed:_--1.5~&"-""--'--V'\..1....1)__,(~\~~-~b'c"'-"'------------
Manufacturer or Vendor Number: __ ~ __ N_t\...._.__\_.__ __________ _
(Located on both sides of the notary seal border)
Signature: _____ \,.,,,_~--"--"'"~==---------------------
Firm Name (if applicable)
Place of Execution : __ ~lc,,,,.C""-=-L-Y\..__1)----1_.L-~\ ~~0"""--Date:----41-~2{~\""""'f)L-j.f-¥-k ..._J __
Rec. Fom, #R10 (Rev 8/13197)
.. . , '
Recording Requested By:
FIRST AMERICAN 1 ITLE { (l f
National Commercial Serices f £1)_
RECORDING REQUESTED BY J tU
AND WHEN RECORDED MAIL TO: N f
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008
Attn: Executive Director
No fee for recording pursuant to
Government Code Section 27383
DOC tt 2011 -0675584
I 1111111111111111111111111111111111111111111111 IIIII IIIII IIIII IIII IIII
DEC 15, 2011 4:59 PM
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 0.00 WAYS: 2
138 17 PAGES: 22
11111111111111111111111111111111111111111111111111111111111111 11111111111111111111111
REGULATORYAGREEMENTAND
DECLARATION OF RESTRICTIVE COVENANTS
(Tavarua Senior Low Income Affordabl e Apartments)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement")
is made and entered into as of pe<:.F;>ye.Eg I 2-, 2011 (the "Agreement Date"), by and
between the Carlsbad Redevelopment Agency, a public body, corporate and politic (the
"Agency"), and Tavarua Senior Apartments, L.P., a California limited partnership (the
"Developer").
RECITALS
1. The Agency and the Developer have entered into a Loan Agreement (the "Loan
Agreement") under which the Agency agreed to loan up to Three Million Seven Hundred Fifty
Thousand Dollars ($3,750,000) ("Loan") to the Developer to finance the development of a fifty
(50)-unit senior-only affordable apartment complex ("Development") on certain real property in
the City of Carlsbad owned by the Developer and more particularly described in Exhibit A
attached to and incorporated herein ("Property"). Capitalized terms used but not defined in this
Agreement shall have the meanings set forth in the Loan Agreement.
2. The Loan consists of Low and Moderate Income Housing Fund monies, which
must be utilized in accordance with the requirements of the Community Redevelopment Law
(Health and Safety Code Section 33000 et film.).
3. Through this Agreement, the Agency is imposing occupancy and affordability
restrictions on the Development pursuant to Health and Safety Code Section 33334.3(£)(1 )(A)
and in order to meet replacement housing requirements applicable to the Redevelopment Area
pursuant to Health and Safety Code Section 33413(a).
4. The Agency also intends to utilize the Development to obtain affordable housing
production credits pursuant to Health and Safety Code Section 334 l 3(b )(2)(A) as newly
constructed units located outside of the Redevelopment Area and available at affordable housing
IO I 0\20\406818.1
13 818
cost to very low, lower, and moderate income households. Such units are required to remain
affordable to such households for fifty-five (55) years. This Agreement is also intended to
implement this requirement.
5. In consideration ofreceipt of the Loan, the Developer has further agreed to
observe all the terms and conditions set forth below.
6. In order to ensure that the entire Development will be used and operated in
accordance with these conditions and restrictions, the Agency and the Developer wish to enter
into this Agreement.
THEREFORE, the Agency and the Developer hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1 Definitions.
When used in this Agreement, the fo llowing terms shall have the respective meanings
assigned to them in this Article 1.
(a) "Actual Household Size" shall mean the actual number of persons in the
applicable household.
(b) "Adjusted Income" shall mean the total anticipated annual income of all
persons in a household, as calculated in accordance with 25 California Code of Regulations
Section 6914 or pursuant to a successor State housing program that utilizes a reasonably similar
method of calculation of adjusted income. In the event that no such program exists, the Agency
shall provide the Owner with a reasonably similar method of calculation of adjusted income as
provided in said Section 6914.
(c) "Agency" shall mean the Carlsbad Redevelopment Agency, a public body,
corporate and politic.
(d) "Agreement" shall mean this Regulatory Agreement and Declaration of
Restrictive Covenants.
(e) "Agreement Date" shall mean the date of this Agreement as set forth
above.
(f) "Assumed Household Size" shall have the meaning set forth in Section
2.2(d). The definition is utilized to calculate affordable rent and is not intended to be a limit on
the number of persons occupying a unit.
(g) "City" shall mean the City of Carlsbad, a municipal corporation.
2 IO 10\20\4068 I 8.1
13 8 19
(h) "Loan" shall mean the funds loaned to the Developer by the Agency
pursuant to the Loan Agreement.
(i) "Deed of Trust" shall mean the deed of trust of even date herewith in favor
of the Agency on the Developer's fee interest in the Property which secures repayment of the
Loan and performance of this Agreement.
(i) "Developer" shall mean Tavarua Senior Apartments, L.P, a California
limited partnership, and its permitted successors and assigns.
(k) "Development" shall mean the Property and the fifty (50) residential units
to be constructed on the Property, as well as any additional improvements, and all landscaping,
roads and parking spaces existing thereon, as the same may from time to time exist.
(I) "Loan Agreement" shall mean that certain Loan Agreement dated
concurrently herewith by and between the Agency and the Developer.
(m) "Lower Income Household" shall mean a household with an Adjusted
Income that does not exceed the qualifying limits for lower income households, as established
and amended from time to time pursuant to Section 8 of the United States Housing Act of 1937,
and as published by the State of California Department of Housing and Community
Development.
(n) "Lower Income Units" shall mean any of the Units which, pursuant to
Section 2.1 below, are required to be occupied by Lower Income Households.
(o) "Median Income" shall mean the median gross yearly income, adjusted for
Actual Household Size or Assumed Household Size as specified herein, in the County of San
Diego, California, as published from time to time by the United States Department of Housing
and Urban Development ("HUD") and the State of California. In the event that such income
determinations are no longer published, or are not updated for a period of at least eighteen (18)
months, the Agency shall provide the Developer with other income determinations which are
reasonably similar with respect to methods of calculation to those previously published by HUD
and the State.
(p) "Other Income Household" shall mean a household with an Adjusted
Income which does not exceed ninety percent (90%) of Median Income, adjusted for Actual
Household Size.
( q) "Other Income Units" shall mean the Units which, pursuant to Section 2.1
below, are required to be occupied by Other Households.
(r) "Property" shall mean the real property described in Exhibit A attached
hereto and incorporated herein.
3 IO I 0\20\406818.1
13820
(s) "Redevelopment Area" shall mean, collectively, the Carlsbad Village
Redevelopment Project Area and the South Carlsbad Coastal Redevelopment Area, as may be
amended from time to time.
(t) "Rent" shall mean the total of monthly payments by the Tenant of a Unit
for the following: use and occupancy of the Unit and land and associated facilities, including
parking; any separately charged fees or service charges assessed by the Developer which are
required of all Tenants, other than security deposits; an allowance for the cost of an adequate
level of service for utilities paid by the Tenant, including garbage collection, sewer, water,
electricity, gas and other heating, cooking and refrigeration fuel, but not telephone service or
cable TV; and any other interest, taxes, fees or charges for use of the land or associated facilities
and assessed by a public or private entity other than the Developer, and paid by the Tenant.
(u) "Tenant" shall mean a household legally occupying a Unit pursuant to a
valid lease with the Developer.
(v) "Term" shall mean the term of this Agreement, which shall commence on
the Agreement Date and shall continue for fifty-five (55) years.
(w) "Unit(s)" shall mean one (1) or all of the fifty (50) rental units to be
constructed on the Property, with the exception of the manager unit.
(x) "Very Low Income Household" shall mean a household with an Adjusted
Income that does not exceed the qualifying limits for very low income households, as established
and amended from time to time pursuant to Section 8 of the United States Housing Act of 193 7,
and as published by the State of California Department of Housing and Community
Development.
(y) "Very Low Income Rent" shall mean the maximum allowable rent for a
Very Low Income Unit pursuant to Section 2.2(a) below.
(z) "Very Low Income Units" shall mean any of the Units which, pursuant to
Section 2.1 below, are required to be occupied by Very Low Income Households.
ARTICLE 2.
AFFORDABILITY AND OCCUPANCY COVENANTS
Section 2.1 Occupancy Requirements.
The Developer shall regulate the use and occupancy of the Units in the following manner:
IO 10\20\406818.1 4
13821
Very Low Lower Other Income Total
One Bedroom 13 27 0 40
Two Bedroom 2 7 I 10
Three Bedroom 0 0 0 0
Total 15 34 1 50
Section 2.2 Allowable Rent.
(a) Extremely Low Income Rent. Subject to the provisions of Section 2.3
below, the Rent charged to Tenants of the Extremenly Low Income Units, if applicable, shall not
exceed one-twelfth (1/lih) of thirty percent (30%) of thirty percent (30%) of Median Income,
adjusted for Assumed Household Size.
(b)Very Low Income Rent. Subject to the provisions of Section 2.3 below, the
Rent charged to Tenants of the Very Low Income Units shall not exceed one-twelfth (1/lih) of
thirty percent (30%) of fifty percent (50%) of Median Income, adjusted for Assumed Household
Size.
(c) Lower Income Rent. Subject to the provisions of Section 2.3 below, the
Rent charged to Tenants of the Lower Income Units shall not exceed one-twelfth (I/12th) of
thirty percent (30%) of seventy percent (70%) of Median Income, adjusted for Assumed
Household Size.
(d) Other Income Rent. Subject to the provisions of Section 2.3 below, the
Rent charged to Tenants of the Other Income Units shall not exceed one-twelfth (1/l ih) of thirty
percent (30%) of one hundred percent (100%) of Median Income, adjusted for Assumed
Household Size.
(e) Assumed Household Size. In calculating the allowable Rent for the Units,
the following Assumed Household Sizes shall be utilized (except that if any federal statutes or
regulations require use of alternate household size assumptions in calculating rents, such
federally-or state-mandated household size assumptions shall be used instead of the assumptions
provided below):
Number of Bedrooms
One
Two
Three
Assumed Household Size
1.5
3
5
(f) Approval of Rents for Units. Initial rents for all Units shall be approved
by the Agency prior to occupancy. All rent increases for all Units shall also be submitted to the
Agency for approval not less than thirty (30) days before notice is given to the affected Tenant
and shall be imposed only if in compliance with this Agreement. The Agency shall provide the
Developer with a schedule of maximum permissible rents for the Units annually.
1010\20\4068 I 8.1 5
13822
Section 2.3 Increased Income of Tenants.
(a) Increased Income Over Extremely Low and Very Low Income. In the
event, upon recertification of a Tenant's household's income, the Developer determines that a
former Extremely Low or Very Low Income Household has an Adjusted Income that exceeds
the qualifying income for an Extremely Low or Very Low Income Household, respectively, but
has an Adjusted Income not exceeding the qualifying limit for a Lower Income Household, upon
expiration of the Tenant's lease, and sixty (60) days' written notice to the Tenant, the Rent may
be increased to one-twelfth (1/lih) of thirty percent (30%) of sixty percent (60%) of Median
Income, and the Owner shall rent the next available Unit to an Extremely Low or Very Low
Income Household to comply with the requirements of Section 2. 1 above.
(b) Increased Income Over Lower Income. In the event that, following
recertification of a Tenant's income, the Developer determines that a former Extremely Low or
Very Low Income Household, or Lower Income Household has an Adjusted Income that exceeds
the qualifying limit for a Lower Income Household but does not exceed ninety percent (90%) of
Median Income, adjusted for Actual Household Size, then, upon expiration of the Tenant's lease
and sixty (60) days' written notice to the Tenant, such household's Unit shall be considered an
Other Unit, and the Rent may be increased to one-twelfth (1/lih) of thirty percent (30%) of
ninety percent (90%) of Median Income, and the Developer shall rent the next available Unit to
an Extremely Low, Very Low Income Household or Lower Income Household to comply with
the requirements of Section 2.1 above.
( c) Increased Income Over 90% of Median Income. If, upon recertification of
a Tenant's income, the Developer determines that a Tenant has an Adjusted Income exceeding
ninety percent (90%) of Median Income, adjusted for Actual Household Size, such Tenant shall
be permitted to continue to occupy the Unit, and, upon expiration of the Tenant's lease, and sixty
(60) days' written notice to the Tenant, the Rent may be increased to one-twelfth (1/li11) of thirty
percent (30%) of the Tenant's actual Adjusted Income, and the Unit shall continue to be
classified as a Other Unit until the Tenant vacates the Unit at which time the Unit shall be re-
rented to an income-eligible household to meet the requirements of Section 2.1 .
(d) Termination of Occupancy. Upon termination of occupancy of a Unit by a
Tenant, such Unit shall be deemed to be continuously occupied by a household of the same
income level (e.g., Extremely Low Income Household, Very Low Income Household, Lower
Income Household, or Other Income Household) as the income level of the vacating Tenant,
until such Unit is reoccupied, at which time the income character of the Unit (e.g ., Extremely
Low Income Household, Very Low Income Household, Lower Income Household, or Other
Income Household) shall be redetermined.
Section 2.4 Tax Credit Rules. To the extent the provisions of this Agreement,
regarding Adjusted Income, assumed household size or increased income of Tenants, conflict
with requirements applicable to any Units regulated by a low income housing tax credit
regulatory agreement, such that the Developer cannot comply with both the tax credit
requirements and the requirements of this Agreement, the Developer shall so notify the Agency
6 JO I 0\20\4068 I 8.1
13823
and may comply with the tax credit requirements regarding Adjusted Income, assumed
household size or increased income in lieu of the requirements of this Agreement.
ARTJCLE 3.
INCOME CERTIFICATION AND REPORTING
Section 3.1 Income Certification.
The Developer shall obtain, complete and maintain on file, immediately prior to initial
occupancy and annually thereafter, income certifications from each Tenant renting any of the
Units (excluding the manager's Unit). The Developer shall make a good faith effort to verify that
the income provided by an applicant or occupying household in an income certification is
accurate by taking one or more of the following steps as a part of the verification process: (])
obtain a pay stub for the most recent pay period; (2) obtain an income tax return for the most
recent tax year; (3) conduct a credit agency or similar search; (4) obtain an income verification
form from the applicant's current employer; (5) obtain an income verification form from the
Social Security Administration and/or the California Department of Social Services if the
applicant receives assistance from either of such agencies; or (6) if the applicant is unemployed
and has no such tax return, obtain another form of independent verification. Copies of tenant
income certifications shall be available to the Agency upon request.
Section 3.2 Annual Report to the Agency.
The Developer shall submit to the Agency (a) not later than the ninetieth (90th) day after
the close of each calendar year, or such other date as may reasonably be requested by the
Agency, a statistical report, including income and rent data for all Units covered by this
Agreement, setting forth the information called for therein, and (b) within fifteen ( 15) days after
receipt of a written request, any other information or completed forms requested by the Agency
in order to comply with reporting requirements of the State of California, the City, and/or the
Agency.
Section 3.3 Additional Information.
The Developer shall provide any additional information reasonably requested by the
Agency. The Agency shall have the right to examine and make copies of all books, records or
other documents of the Developer which pertain to the Development.
Section 3 .4 Records.
The Developer shall maintain complete, accurate and current records pertaining to the
Development, and shall permit any duly authorized representative of the Agency to inspect
records, including records pertaining to income and household size of Tenants. All Tenant lists,
applications and waiting lists relating to the Development shall at all times be kept separate and
identifiable from any other business of the Developer and shall be maintained as required by the
Agency, in a reasonable condition for proper audit and subject to examination during business
hours by representatives of the Agency. The Developer shall retain copies of all materials
7 IO I 0\20\406818.1
13824
obtained or produced with respect to occupancy of the Units for a period of at least five (5)
years.
Section 3.5 On-site Inspection.
The Agency shall have the right to perform an on-site inspection of the Development at
least one (1) time per year. The Developer agrees to cooperate in such inspection. If the Agency
desires to inspect the interior of the Units, the Agency shall give Developer sufficient notice to
allow the Developer to give seventy-two (72) hours notice to residents. Such right to annually
inspect the Development shall be addition to the City's right to inspect the Development in
accordance with the City's municipal code as may be amended from time to time.
ARTICLE 4.
OPERATION OF THE DEVELOPMENT
Section 4.1 Residential Use.
The Development shall be operated only for residential use. No part of the Development
shall be operated as transient housing.
Section 4.2 Compliance with Loan Agreement.
The Developer shall comply with all the terms and provisions of the Loan Agreement.
Section 4.3 Taxes and Assessments.
The Developer shall pay all real and personal property taxes, assessments and charges
and all franchise, income, employment, old age benefit, withholding, sales, and other taxes
assessed against it, or payable by it, at such times and in such manner as to prevent any penalty
from accruing, or any lien or charge from attaching to the Property; provided, however, that
Developer shall have the right to contest in good faith, any such taxes, assessments, or charges.
In the event Developer exercises its right to contest any tax, assessment, or charge against it,
Developer, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered against it, together with all costs, charges and
interest. The Developer shall not apply for a property tax exemption for the Property under any
provision of law, except pursuant to Revenue and Taxation Section 214(g), without the Agency's
prior written consent.
Section 4.4 Preference to Displacees.
The Developer shall give a preference in the rental of any Units to eligible households
displaced by activity of the Agency upon receiving a written request of the Agency regarding
such displacement.
8 I 010\20\406818.1
13825
ARTJCLE 5.
PROPERTY MANAGEMENT AND MAINTENANCE
Section 5.1 Management Responsibilities.
The Developer is responsible for all management functions with respect to the
Development, including without limitation the selection of Tenants, certification and
recertification of household size and income, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and
security. The Agency shall not have any responsibility over management of the Development.
The Developer shall retain a professional property management company approved by the
Agency in its reasonable discretion to perform its management duties hereunder as set forth
below. A resident manager shall also be required.
Section 5.2 Management Agent.
The Development shall at all times be managed by an experienced management agent
reasonably acceptable to the Agency, with demonstrated ability to operate residential facilities
like the Development in a manner that will provide decent, safe, and sanitary housing (as
approved, the "Management Agent"). The Agency hereby approves Western Seniors Housing,
as the initial Management Agent. The Developer shall submit for the Agency's approval the
identity of any other proposed Management Agent. The Developer shall also submit such
additional information about the background, experience and financial condition of any proposed
Management Agent as is reasonably necessary for the Agency to determine whether the
proposed Management Agent meets the standard for a qualified Management Agent set forth
above. If the proposed Management Agent meets the standard for a qualified Management
Agent set forth above, the Agency shall approve the proposed Management Agent by notifying
the Developer in writing. If the proposed Management Agent is disapproved by the Agency, the
disapproval shall state with reasonable specificity the basis for disapproval. Thereafter, the
Developer shall submit a different proposed Management Agent, and submit such additional
information about the background, experience and financial condition of the proposed
Management Agent as is reasonably necessary for the Agency to determine whether the
proposed Management Agent meets the standard for a qualified Management Agent set forth
above. Only upon the written approval of the Agency of the Developer's proposed Management
Agent shall constitute the Developer's compliance with this Section.
Section 5.3 Periodic Performance Review.
The Agency reserves the right to conduct an annual (or more frequently, if deemed
necessary by the Agency) review of the management practices and financial status of the
Development, including the performance of the Management Agent. The purpose of each
periodic review will be to enable the Agency to determine if the Development is being operated
and managed in accordance with the requirements and standards of this Agreement. The
Developer shall cooperate with the Agency in such reviews.
Section 5.4 Replacement of Management Agent.
JOI 0\20\406818.1 9
13826
If, as a result of a periodic review, the Agency determines in its reasonable judgment that
the Development is not being operated and managed in accordance with any of the material
requirements and standards of this Agreement, the Agency shall deliver notice to Developer and
the investor limited partner of its intention to cause replacement of the Management Agent,
including the reasons therefor. Within fifteen (15) days after receipt by Developer of such
written notice, Agency staff and the Developer shall meet in good faith to consider methods for
improving the financial and operating status of the Development, including, without limitation,
replacement of the Management Agent.
If, after such meeting, Agency staff recommend in writing the replacement of the
Management Agent, Developer shall promptly dismiss the then Management Agent, and shall
appoint as the Management Agent a person or entity meeting the standards for a Management
Agent set forth in Section 5.2 above and approved by the Agency and investor limited partner
pursuant to Section 5.2 above.
Any contract for the operation or management of the Development entered into by
Developer shall provide that the contract can be terminated as set forth above. Failure to remove
the Management Agent in accordance with the provisions of this Section shall constitute default
under this Agreement, and the Agency may enforce this provision through legal proceedings as
specified in Section 6.8.
Section 5.5 Approval of Management Policies .
The Developer shall submit its written management policies with respect to the
Development to the Agency for review, and shall amend such policies in any way necessary to
ensure that such policies comply with the provisions of this Agreement.
Section 5.6 Property Maintenance.
The Developer agrees, for the entire Term of this Agreement, to maintain all interior and
exterior improvements, including landscaping, on the Property in good condition and repair (and,
as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules,
ordinances, orders and regulations of all federal, state, county, municipal, and other
governmental agencies and bodies having or claiming jurisdiction and all their respective
departments, bureaus, and officials.
The Agency places prime importance on quality maintenance to protect its investment
and to ensure that all Agency-assisted affordable housing projects within the City are not allowed
to deteriorate due to below-average maintenance. Normal wear and tear of the Development will
be acceptable to the Agency assuming the Developer agrees to provide all necessary
improvements to assure the Development is maintained in good condition. The Developer shall
make all repairs and replacements necessary to keep the improvements in good condition and
repair.
10 IO l0\20\406818.l
13827
In the event that the Developer breaches any of the covenants contained in this section
and such default continues for a period of ten (10) days after written notice from the Agency
with respect to graffiti, debris, and waste material, or thirty (30) days after written notice with
respect to general maintenance, landscaping and building improvements, (and subject to any
stricter requirements included in any applicable City ordinance) then the Agency, in addition to
whatever other remedy it may have at law or in equity, shall have the right to enter upon the
Property and perform or cause to be performed all such acts and work necessary to cure the
default. Pursuant to such right of entry, the Agency shall be permitted (but are not required) to
enter upon the Property and perform all acts and work necessary to protect, maintain, and
preserve the improvements and landscaped areas on the Property, and to attach a lien on the
Property, or to assess the Property, in the amount of the reasonable expenditures arising from
such acts and work of protection, maintenance, and preservation by the Agency and/or costs of
such cure, including an administrative charge equal to fifteen percent (15%) of such
expenditures, which amount shall be promptly paid by the Developer to the Agency upon
demand.
ARTICLE 6.
MISCELLANEOUS
Section 6.1 Lease Provisions.
The Developer shall use a form of Tenant lease approved by the Agency. The form of
Tenant lease shall also comply with all requirements of this Agreement, and the Loan
Agreement, and shall, among other matters:
(a) provide for termination of the lease and consent by the Tenant to
immediate eviction for failure: (1) to provide any information required under this Agreement or
reasonably requested by the Developer to establish or recertify the Tenant's qualification, or the
qualification of the Tenant's household, for occupancy in the Development in accordance with
the standards set forth in this Agreement, or (2) to qualify as a Extremely Low Income
Household, Very Low Income Household, Lower Income Household, or Other Income
Household as a result of any material misrepresentation made by such Tenant with respect to the
income computation or certification; and
(b) be for an initial term of not less than one (1) year, and provide for no Rent
increase during such year. After the initial year of tenancy, the lease may be month to month by
mutual agreement of the Developer and the Tenant, however the Rent may not be raised more
often than once every twelve (12) months. The Developer will provide each Tenant with at least
sixty (60) days' written notice of any increase in Rent applicable to such Tenant, and with such
further notice as may be required by Section 2.3 above.
Section 6.2 Nondiscrimination.
All of the Units shall be available for occupancy on a continuous basis to members of the
general public who are income eligible and meet the requirements to reside within a senior only
11 IO 10\20\4068 I 8.1
13828
development. The Developer shall not give preference to any particular class or group of
persons in renting the Units, except to the extent that the Units are required to be leased to Senior
and Extremely Low Income Households, Very Low Income Households, Lower Income
Households, and Other Income Households. There shall be no discriminat ion against or
segregation of any person or group of persons, on account of race, color, creed, religion, sex,
sexual orientation, marital status, national origin, source of income (e.g., SSI), age, ancestry, or
disability, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of any
Unit nor shall the Developer or any person claiming under or through the Developer, establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use, or occupancy, of tenants, lessees, sub lessees, subtenants, or
vendees of any Unit or in connection with the employment of persons for the construction,
operation and management of any Uni t. All deeds, leases or contracts made or entered into by
Developer as to the Units or the Development or portion thereof, shall contain covenants
concerning discrimination as prescribed by the Loan Agreement.
Section 6.3 Section 8 Certificate Holders.
The Developer will accept as Tenants, on the same basis as all other prospective Tenants,
persons who are recipients of federal certificates for rent subsidies pursuant to the existing
housing program under Section 8 of the United States Housing Act of 193 7, as amended, or its
successor. The Developer shall not apply selection criteria to Section 8 certificate or voucher
holders that are more burdensome than criteria applied to all other prospective Tenants, nor shall
the Developer apply or permit the application of management policies or lease provisions with
respect to the Development which have the effect of precluding occupancy of units by such
prospective Tenants.
Section 6.4 Term.
The provisions of this Agreement shall apply to the Property for the entire Term. This
Agreement shall bind any successor, heir or assign of the Developer, whether a change in interest
occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly
released by the Agency. The Agency makes the Loan on the condition, and in consideration of,
this provision, and would not do so otherwise.
Section 6.5 Compliance with Loan Agreement and Program Requirements.
The Developer's actions with respect to the Property shall at all times be in full
conformity with: (i) all requirements of the Loan Agreement; and (i i) all requirements imposed
on projects assisted with the Agency monies under California Health and Safety Code Section
33334.2 et .fil:9., as may be amended from time to time.
Section 6.6 Notice of Expiration of Term.
At least six (6) months prior to the expiration of the Term the Developer shall provide by
first-class mail, postage prepaid, a notice to all Tenants in the Units containing (a) the anticipated
date of the expiration of the Term, (b) any anticipated Rent increase upon the expiration of the
12 I 010\20\4068 18.1
13829
Term, (c) a statement that a copy of such notice will be sent to the Agency, and (d) a statement
that a public hearing may be held by the Agency on the issue and that the Tenant will receive
notice of the hearing at least fifteen (15) days in advance of any such hearing. The Developer
shall also file a copy of the above-described notice with the Agency.
Section 6.7 Covenants to Run With the Land.
The Agency and the Developer hereby declare their express intent that the covenants and
restrictions set forth in this Agreement shall run with the land, and shall bind all successors in
title to the Property, provided, however, that on the expiration of the Term of this Agreement
said covenants and restrictions shall expire. Each and every contract, deed or other instrument
hereafter executed covering or conveying the Property or any portion thereof, shall be held
conclusively to have been executed, delivered and accepted subject to such covenants and
restrictions, regardless of whether such covenants or restrictions are set forth in such contract,
deed or other instrument, unless the Agency expressly releases such conveyed portion of the
Property from the requirements of this Agreement.
Section 6.8 Default by the Developer; Enforcement by the Agency.
If the Developer fails to perform any obligation under this Agreement (including but not
limited to the failure to rent the Units as set forth in Article 2), and fails to cure the default within
thirty (30) days after the Agency has notified the Developer, and the Developer's investor limited
partner, in writing of the default or, if the default cannot be cured within thirty (30) days, fails to
commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete
such cure within ninety (90) days, or such longer period as approved by the Agency in writing,
the Agency shall have the right to enforce this Agreement by any or all of the following actions,
or any other remedy provided by law:
(a) Calling the Loan. The Agency may declare a default under the Loan
Agreement, and declare the Loan due and payable and proceed with forec losure under the Deed
of Trust.
(b) Action to Compel Performance or for Damages. The Agency may bring
an action at law or in equity to compel the Developer's performance of its obligations under this
Agreement, and/or for damages.
(c) Remedies Provided Under Loan Agreement. The Agency may exercise
any other remedy provided under the Loan Agreement.
( d) Agency Sublease of Units. If and to the extent necessary to correct any
Developer default which extends beyond any applicable notice and cure period, the Developer
hereby grants to the Agency the option to lease, from time to time, Units in the Development for
a rental of One Dollar ($1.00) per Unit per year for the purpose of subleasing such units to
comply with Article 2 of this Agreement. Upon the request of the Agency following such
default by the Developer, the Developer hereby agrees to execute such documents as reasonably
requested by the Agency, including but not limited to, rental agreement(s) in a form prepared by
13
l 0 I 0\20\406818. I
13 8 30
the Agency, to implement the sublease of the Unit(s). Any rents received by the Agency under
any such sublease shall be paid to the Developer after the Agency has been reimbursed for any
expenses incurred in connection with such sublease.
Section 6.9 Recording and Filing.
The Agency and the Developer shall cause this Agreement, and all amendments and
supplements to it, to be recorded in the Official Records of the County of San Diego.
Section 6.10 Governing Law.
This Agreement shall be governed by the laws of the State of California.
Section 6.11 Waiver of Requirements.
Any of the requirements of this Agreement may be expressly waived by the Agency in
writing, but no waiver by the Agency of any requirement of this Agreement shall, or shall be
deemed to, extend to or affect any other provision of this Agreement.
Section 6.12 Amendments.
This Agreement may be amended only by a written instrument executed by all the parties
hereto or their successors in title, and duly recorded in the real property records of the County of
San Diego.
Section 6.13 Notices.
Any notice requirement set forth herein shall be deemed to be satisfied one (I) day after
mailing of the notice by reputable overnight delivery service or three (3) days after mailing of the
notice by first-class United States certified mail, postage prepaid, addressed to the appropriate
party as fo llows:
Developer:
IO I 0\20\4068 18.1
Tavarua Senior Apartments
C/O Meta Housing Corp
1640 Sepulveda Blvd., Ste 425
Los Angeles, Ca.
Attn: John Huskey
Western Community Housing, Inc.
151 Kalmus Drive, Suite J-5
Costa Mesa, CA 92626
Attn: Graham Espley-Jones
14
and a copy to:
Bocarsly Emden
633 W. Fifth St., 70th Floor
Los Angeles, Ca. 90071
Attn: Lance Bocarsly
13831
and a copy to: Investor Limited Partner:
Agency:
Wells Fargo Affordable Housing Community Development Corporation
MACD1053-170
30] South College Street
Charlotte, NC 28288
Attention: Director of Tax Credit Asset Management
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, CA 92008
Attn: Executive Director
Such addresses may be changed by notice to the other party given in the same manner as
provided above.
Section 6.14 Severability.
If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining portions of this Agreement shall not in any way be
affected or impaired thereby.
Section 6.15 Multiple Originals; Countemarts.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
15 IO I 0\20\406818.1
1383 2
fN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement
by duly authorized representatives, as of the last date written below.
Developer:
TA V ARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VU, LLC
Its: Managing General Partner
By: Western Community Housing, Inc.
Its: Sole Managing Member of the Managing General
Parnter
By:~.e ~ Grah~. Espley-J~--=-::::::::_:
Its: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administrative General Partner
By:
John M. Huskey
Its: Member
Signatures Continue on Following Page
IO I 0\20\406818.1 16
13 8 3 3
IN WITNESS WHEREOF, the Agency and the Developer have executed this Agreement
by duly authorized representatives, as of the last date written below.
Developer:
TAVARUA SENIOR APARTMENTS, L.P.,
A California limited partnership
By: WCH Affordable VII, LLC
Its: Managing General Partner
By: Western Community Housing, Inc.
Jts: Sole Managing Member of the Managing General
Parnter
By: -------------Graham P. Espley-Jones
Its: President
By. Tavarua Senior Apartments, LLC,
a California limited liability company
Its: Administrati neral Partner
By:
John
Its: Member
Signatures Continue on Following Page
16 10 l 0\20\406818.1
APPROVED AS TO FORM:
13834
Agency:
CARLSBAD REDEVELOPMENT AGENCY, a public
body corP,orate and politic By e¾,,;__~-
Its:
~~~C....!...!..._/1-:;::::w.__'f-: ~ i~
onald Ball], Agency Counsel /, l'J I/ / ,,2,--/ ,--11
17 IO 10\20\4068 I 8.1
13835
CALIFORNIA ALL-PURPOSE ACK NOWLEDGMENT
v<'"'-f'~~.§'l"~~~~"'-"X
State of California }
County of _....,..Oc...L.Q=-<ft...J.....:.....Af----=:{;_r;,-cc ____ _
On Ofcemhet 81 'JIJ/1 before me, te.aoo~ 1t«-ofreftd N1r/a(u Eco/;~
personally ap:::re~ ----"~:.-LLraL.f-.'/2'--'--"a"'--'-m-'-_:____JPL__L_..l,~-=,,4~~!'---He,,;re""ln,;,se,,..rt_:~a(f?J~and-'-"-'~c..L..!eGS1 ... of!::::th:....e Off_ice_r __ f-_____ _
•
LEANNE TRUOFREH
Commission # 1887730 ~ Notary Public -California I
z Orange County ~ J. o ~ • o .Ml S0T"1 tx~re ~al L2,n1!l
1 Name(~gner(s)
who proved to me on the basis of satisfactory evidence to
be the personfs') Whose name(5) is/are-subscribed to the
within instrument and acknowledged to me that
he/SAefthey executed the same in his/hofltheir authorized
capacity(ies), and that by his/horlthcir-signatur$) on the
instrument the person'8), or the entity upon behalf of
which the person(S-, acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature ~Jui f ":Jd-c~1lt:Q Place Nolary Seal Above ~ ~,gna\e of~ubl,c r
OPTIONAL------------
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: fe.t:u la -/2 r <-j &Jr.et' me.11 f-
oocument Date: ___________________ Number of Pages: ________ _
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: ____________ _
_J Individual
Corporate Officer -Title(s):
')(, Partner -~ Limited y General
....1 Attorney in Fact
.J Trustee
_J Guardian or Conservator
_J Other: ________ _
Signer Is Representing: ___ _
AIGHTTHUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name: ______________ _
_ Individual
" Corporate Otticer -Title(s): ________ _
, Partner -_ Limited C General
Attorney in Fact
_ Trustee
Guardian or Conservator
Other: __________ _
Signer Is Representing: ____ _
U<.,~v<,~--(;.(;.'<i.;(."!¼~'tl<,"'<X..'<.}(,...:X,'<.X,~"'<X,~"C(,.~t(.,'C(,'"C<:,~~"C<,"(l(
C 2007 National Notary AssoclalJon • 9350 De Soto Ave .. P.O. Box 2402 • Cllatswor11l. CA 91313-2402 • www.NallOnalNotary.org Item #5907 Reorder: CsnTotl-Free 1-800-876-6827
13836
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
ii~:: ~~~L 1.· __ :I:
~ Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Documeny tr ~ .-. { 1.. I ~\ ~ Title or Type of Document: ~~ ~ ~~ ~) ~ ~ Document Date: ---, Number of Pages: / g
~ Signer(s) Other Than Named Above: I I Capacity(ies) Claimed by Signer(s) 1
~ Signer's Name:______________ Signer's Name:____________ .: ~ □ Corporate Officer -Title(s): ________ □ Corporate Officer -Title(s): ________ . ~ ~ ~ ~
□ Individual
□ Partner -□ Limited □ General
□ Attorney in Fact
□ Trustee
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
□ Individual
□ Partner -□ Limited □ General
□ Attorney in Fact
□ Trustee
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
@ j □ Guardian or Conservator □ Guardian or Conservator 1
~ D Other: □ Other: I
& --------:, ~ ! Signer Is Representing: ____ '--------' Signer Is Representing: ____ '------' I
l~~~~~~~~~~~~~'§<.,.~~"<X).~":g,,g;.~~~~'Q<:.~~~1
102008 National Nota,y Association• 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder. Call Toll-Free t-800-876-6827
r
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CALIFORNIA ALL-PURPOSE 13837
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of cS an Q/e;J 0
On Wem W/2-i 2o / ( before me, ~~..µ..L--'-'>~1....:..>....----1._.I.L.[..LL.:,,,j"-'--LII-JIJ-u....YSL.......lU/---U,u"-!b~1~C...,=
1
==----
personally appeared ___ ___:L-=.L.1=s ..... a"--,J.,tiL~'-!d"-'d,""""---=b=-..,rcc....:0."'-''f7'--"-""-/ _____________ ,
who proved to me on the basis of satisfactory evidence to be the person(_srwhose nam~aFe-Subscribed to
the within instrument and acknowledged to me that ~xecuted the same in~theiNluthorized
capacity(ie-s), and that by ~tRe-ir signature~ on the instrument the person(£t-, or the entity upon behalf of
which the person(s1acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Cali fornia that the foregoing paragraph
is true and correct.
WlTNESS my hand and official seak
~!:s~w. Gx ~ (Notary Seal)
SHEILA RENAE COBIAN
Commission# 1848471
Notary Public • Calltornia z
San Diego County !
Comm. Expires Ma 10, 2013
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages __ Document Date ____ _
(Additional information)
CA PACITY CLA IMED BY THE SIGNER
D Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
D Trustee(s)
D Other ___________ _
2008 Version CAPA vl2. 10.07 800-873-9865 www NotaryClasses.com
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in 1he nota,y section or a separate acknowledgment form must be
properly compleled and al/ached to tha1 document. The only exceplion is if a
doc11ment is lo be recorded outside of California. In such mstances, any alrernarive
acknowledgment verbiage as may be printed on s11ch a doc11ment so long as rhe
verbiage does not req11ire the notary to do somelhing 1har is illegal for a notary in
California (i.e. cerlijj,ing rhe authori:ed capacity of rhe signer). Please check the
documenr caref11/ly for proper no/aria/ wording and auach rhis form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public).
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural fonns by crossing off incorrect fonns (i.e.
he/she/!l,ey;-is lafe) or circling the correct forms. Failure 10 correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible.
Impression must not cover text or lines. If seal impression smudges, re-seal 1f a
sufficient area permits, otherwise complete a different acknowledgment form
• Signature of the notary public must match the signature on file with the office of
the county clerk
❖ Additional information is not required but could help 10 ensure this
acknowledgment is not misused or attached to a different document.
❖ Indicate title or type of attached document, number of pages and date
❖ Indicate the capacity claimed by the signer If the claimed capacity is a
corporate officer, indicate the title (i e. CEO, CFO. Secretary).
• Securely attach this document to the signed document
I
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EXHIBIT A
(Legal Description)
13838
The land is situated in the State of California, County of San Diego, City of Carlsbad, and
is described as follows:
"PARCEL A" AS SHOWN ON CERTIFICATE OF COMPLIANCE WITH CONDffiONS EVIDENCED BY
DOCUMENT RECORDED SEPTEMBER 7, 1993 AS INSTRUMENT NO. 93-0588928 OF OFFICIAL
RECORDS, DESCRIBED AS FOLLOWS:
ALL OF LOT 5 AND LOT 6 AND THE NORTHERLY 4.85 FEET OF LOT 4 IN BLOCK "B" OF THE
RESUBDIVISION OF A PORTION OF ALLES AVOCADO ACRES, IN THE CITY OF CARLSBAD,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 2027,
FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MAY 17, 1927,
AND; THAT PART OF THAT PORTION OF LOTS 7 AND 8 IN BLOCK "B" OF THE RESUBDIVISION
OF A PORTION OF ALLES AVOCADO ACRES AS SHOWN ON MAP NO. 2027, FILED IN THE
OFFICE OF THE RECORDER OF SAN DIEGO COUNTY, MAY 17, 1927, AS SAID PORTION WAS
CONVEYED TO THE STATE OF CALIFORNIA BY DEED RECORDED JANUARY 6, 1967 AS
INSTRUMENT NO. 1884 OF OFFICIAL RECORDS OF SAN DIEGO COUNTY. SAID PART HEREBY
CONVEYED LYING SOUTHWESTERLY OF THAT PORTION OF THE SOUTHWESTERLY LINE OF
THE STATE HIGHWAY 11-SD-5-48.8 DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH BEARS SOUTH 67 DEGREES 26' 53" WEST, 108.72 FEET FROM
ENGINEER'S STATION 178 + 10 OF THE "O" LINE OF THE 1964 SURVEY FOR SAID HIGHWAY
BETWEEN CANNON ROAD AND BUENA VISTA CREEK; THENCE ALONG SAID SOUTHWESTERLY
LINE NORTH 22 DEGREES 41' 17" WEST, 344.41 FEET TO NORTHERLY LINE OF PALM AVENUE
SHOWN AS ALLES AVENUE ON SAID MAP NO. 2027; THENCE CONTINUING NORTH 22 DEGREES
41' 17" WEST, 195.59 FEET TO A POINT WHICH BEARS SOUTH 67 DEGREES
26' 53" WEST, 110.00 FEET FROM ENGINEER'S STATION 183 + 50 OF SAID "O" LINE.
APN: 204-192-12-00
A-1
IO I 0\20\406818.1