First Amendmend and Restated Deed of Trust with Assignment of Rents and Security Agreement 2011-0441797DOC q 2011- 0447797
CHICAC�O bILE AUG 26. 2J11 BOO PM
AND W RECORDED INV
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CO
The Poway Housing Authority
13325 Civic Center Drive 63
Poway, CA 92064
Attn: Executive Director
OFFICIAL RECORDS
SAN DIEGO COUNTY RECORDER'S OFFICE
Ernest J. Dronenburg, Jr., COUNTY RECORDER
FEES: 111.00 WAYS: 3
PAGES: 23
IINN I II IIIII 111111111111111111111111111111111111111111 1111111111111 IN IN
NO FEE FOR RECORDING PURSUANT TO
GOVERNMENT CODE SECTION 27383
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FIRST ANvRDED AND RESTATED DEED OF TRUST WITH ASSIGNMENT OF RENTS
AND SECURITY AGREEMENT
(Orange Gardens — 125 10 Oak Knoll Road)
THIS FIRST AMENDED AND.RESTATED DEED OF TRUST WITH ASSIGNMENT OF
RENTS AND SECURITY AGREEMENT ("Deed of Trust') is made as of August 1, 2011, by
and among Poway Family Housing Partners; L.P.; a "California limited partnership ( "Trustor"),
Chicago Title Company, a California corporation ("Trustee' ), and the Poway Housing Authority,
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 Poway, 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;
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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,
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 (except laundry equipment owned by third parties),
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 re..ceivable, 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 THE FOLLOWING OBLIGATIONS (the
"Secured Obligations "):
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(a) Payment to Beneficiary of all sums at any time owing under or in connection with
the Agency Note (defined in Article 1 below) until paid or cancelled and any other amounts
owing under the Agency Loan Documents. Said principal and other payments shall be due and
payable as provided in the Agency Note or other Agency Loan Documents, as applicable. The
Agency Note and all its terms are incorporated herein by reference, and this conveyance shall
secure any and all extensions thereof, however evidenced; and
(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 obligation, covenant or agreement of Trustor contained
herein and in the Agency Loan Documents (defined in Section 1.2 below).
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
ARTICLE i
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 First Amended and
Restated Agency Loan Agreement, between the Poway Redevelopment Agency ( "Agency') and
Trustor, dated as of March 9, 2011, providing for the Agency to loan to the Trustor Eight Million
Eight Hundred Forty -Six Thousand Dollars ($8,846,000) ( "Agency Loan") for the acquisition
and development of the Property. Pursuant to the terms of that certain Cooperation Agreement
Between the Poway Redevelopment Agency and the Poway Housing Authority for Payment of
Costs Associated With Certain Redevelopment Agency Funded Low and Moderate Income
Housing Projects, dated as of March 11, 2011, 'by and between the Agency and Beneficiary,
Beneficiary agreed to cooperate with and assist the Agency in the implementation of certain
multifamily housing projects, including, without limitation, the Development and servicing the
Agency Loan. All capitalized terms not otherwise defined in this Note shall have the meanings
set forth in the Loan Agreement.
Section 1.2 The term "Agency Loan Documents" means this Deed of Trust, the
Agency Note, the Loan Agreement, the Agency Regulatory Agreement, Notice of Restriction on
Transfer of Property, the Assignment of Plans, and any other debt, loan or security instruments
between Trustor and the Beneficiary relating to the Property.
Section 1.3 The term "Agency Note" means the promissory note in the principal
amount of Eight Million Eight Hundred Forty -Six Thousand Dollars ($8,846,000) of even date
herewith executed by Trustor, the payment of which is secured by this Deed of Trust. (A copy of
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the Agency Note is on file with the Beneficiary and terms and provisions of the Agency Note are
incorporated herein by reference.).
Section 1.4 The term "Principal" means the amount required to be paid under the
Agency Note.
Section 1.5 The term "Notice of Affordability Restrictions" means the Notice of
Affordability Restrictions on Transfer of Property between the Trustor and the Beneficiary to be
recorded against the Property.
Section 1.6 The term "Regulatory Agreement" means the Amended and Restated
Regulatory Agreement and Declaration of Restrictive Covenants of even date herewith by and
between the Beneficiary and the Trustor.
Section 1.7 The term "Senior Lenders" means lenders making loans under the
Approved Financing as defined in Section 1.1 of the Loan Agreement.
ARTICLE 2
MAINTENANCE AND MODIFICATION OF THE PROPERTY AND SECURITY
Section 2.1 Maintenance and Modification of the Property by Trustor.
(a) The Trustor agrees that at all times prior to full payrpent and performance of the
Secured Obligations, 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.
(b) 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 or 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.
(c) 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
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for labor, materials or services which Trustor in good faith disputes and is diligently contesting
provided that Trustor 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 1/2 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 site access, installation and
maintenance of public utilities including, without limitation, water, gas, electricity, sewer, cable,
telephone and telegraph, or those required by law, and as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
(a) As part of the consideration for the indebtedness evidenced by the Agency 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 resident 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 and revenues so collected to the Secured Obligations 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 resident 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 resident therefor, delivered to each resident personally, by mail or by
delivering such demand to each rental unit, without any liability on the part of said resident to
inquire further as to the existence of a default by Trustor.
(b) Trustor hereby covenants that, except to senior mortgage lenders, 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
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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 ftuu thher covenant that Trustor will
execute and deliver to Beneficiary such further assignments of rents and revenues of the Property
as Beneficiary may from time to time request.
(c) 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.
(d) 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,
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.
(e) 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 part of the Secured Obligations 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
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provided herein. This assignment of rents of the Property shall terminate at such time as this
Deed of Trust ceases to secure the Secured Obligations.
ARTICLE 3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
(a) Trustor shall pay, or cause to be paid, at least fifteen (15) days 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 Iien 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 (1) the legality thereof shall be promptly and actively contested in good faith
and by appropriate proceedings, and (2) 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
(2) 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.
(b) In the event that Trustor shall fail to pay any of the foregoing items required by
this Section 3.1 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 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 part of the Secured Obligations
secured hereby, and Trustor agrees to pay all such amounts.
Section 3.2 Provisions Respecting Insurance.
(a) 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 Secured
Obligations secured hereunder fulfilled, and this Deed of Trust reconveyed.
(b) All such insurance policies and coverages shall be maintained at Trustor's sole
cost and expense. Certificates of insurance 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 Trustor's satisfaction of the Secured Obligations.
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
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(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 part
of the Secured Obligations (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 ten percent (10 %) per annum or
the maximum rate permitted by law.
ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages. Subject to the rights of senior lenders, all
judgments, awards of damages, settlements and compensation made in connection with or in lieu
of (a) taking of all or any part of or any interest in the Property by or under assertion of the.
power of eminent domain, (b) any damage to or destruction of the Property or in any part thereof
by insured casualty, and (c) 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 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
including repair or restoration in accordance with Section 5.7(b) of the Loan Agreement.
Application of all or any part of the Funds collected and received by the 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
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amounts paid by the Beneficiary shall be added to the Secured Obligations, 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 Agency 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.
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 Agency Note in accordance with its
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 all 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.
(a) 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 any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in
Sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself or
herself, or any person claiming under or through him or her, establish or permit any such practice
or practices of discrimination or segregation with reference to the selection, location, number,
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use, or occupancy, of tenants, lessees, sublessees, subtenants, or vendees in the premises herein
leased.
(b) Notwithstanding the preceding paragraph, with respect to familial status, the
preceding paragraph shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the Government Code. With respect to familial status, nothing in the
preceding paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and
799,5 of the Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the
Government Code shall apply to the preceding paragraph. The foregoing covenants shall run
with the land and survive the termination of this Agreement.
ARTICLE 6
HAZARDOUS WASTE
Section 6.1 Hazardous Waste.
(a) 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 hereinafter as "Hazardous Materials ") except such of the foregoing as may be
customarily kept and used in and about multifamily residential property.
(b) Trustor shall immediately advise Beneficiary in writing if at any time it receives
written notice of (1) 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"); (2) 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 (1) and (2)
above hereinafter referred to a "Hazardous Materials Claims'); and (3) 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.
(c) 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
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and to have its reasonable attorneys' fees in connection therewith paid by Trustor. Trustor shall
indemnify and hold harmless Beneficiary and its board members, supervisors, directors, officers,
employees, agents, successors and assigns from and against any loss, damage, cost, expanse 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: (1) all foreseeable consequential damages; (2) 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 (3) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses (1) and (2),
including but not limited to reasonable attorneys' fees.
(d) 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 judgment,
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
(e) Beneficiary agrees not to withhold its consent, where such consent is required
hereunder, if either (1) a particular remedial action is ordered by a court of competent
jurisdiction, (2) Trustor will or may be subjected to civil or criminal sanctions or penalties if it
fails to take a required action; (3) 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 (4) the action has been agreed to by
Beneficiary.
(f) The Trustor hereby acknowledges and agrees that (1) 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 (2) 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.
(g) 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
726.5(exl)), 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
11
Wardens DOT exe 8 -1 -11
WM
rights under California Code of Civil Procedure Section 726.5(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 726.5(a), the Trustor shall be r 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 726.5(d)(1), 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 726.5(b) to
determine the degree to which the Property is environmentally impaired, plus interest thereon at
the rate specified in the Agency 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
( "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 of Trustor'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.
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 Secured Obligation 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:
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
12
OGwdens DOT exe 8 -1 -11
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 Sale (as defined below)
hereunder or invalidate any act done in response to such Default or pursuant to such Notice of
Sale and, notwithstanding the continuance in possession of the Security, Beneficiary shall be
entitled to exercise every right provided for irr this Deed of Trust, or by law upon occurrence of
any Event of Default, including the right to exercise the power of sale;
Commence an action to foreclose this Deed of Trust as a mortgage, appoint a receiver, or
specifically enforce any of the covenants hereof;
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
Sale "), which notice Trustee or Beneficiary shall cause to be duly filed for record in the Official
Records of San Diego County; or
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 Secured Obligations.
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 Secured Obligations are immediately due and payable),
and such receipts and evidence of any expenditures made that are additionally secured hereby as
Trustee may require.
Upon receipt of such Notice of Sale from the Beneficiary, Trustee shall cause to be
recorded, published and delivered to Trustor such Notice of Sale 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 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 wan-ant and defend the title of such purchaser or purchasers.
13
Wardens DOT exe 8 -1 -11
! � N
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. (1) the unpaid Principal amount of the Agency Note; (2) all other Secured
Obligations owed to Beneficiary under the Loan Documents; (3) all other sums then secured
hereby; and (4) the remainder, if any, to Trustor.
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 therefore. Any such receiver or
receivers shall have all the usual powers and duties of receivers in like 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.
Section 7.7 No Waiver.
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 express or
implied consent to a breach by Trustor, or a waiver of any obligation of the 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.
14
Wardens DoT exe 8 -1 -11
90:
If the Beneficiary (I) grants forbearance or an extension of time for the payment or
performance of any Secured Obligation, (2) takes other or additional security or the payment of
any sums secured hereby, (3) waives or does not exercise any right granted in the Loan
Documents, (4) 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, (5)
consents to the granting of any easement or other right affecting the Security, or (6) 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 Beneficiary, 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 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 Secured Obligations 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 S.1 Amendments. This Deed of Trust cannot be waived, changed, discharged
or terminated orally, but only by an instrument in writing signed by Beneficiary and Trustor.
15
OGardens DOT "e 8 -1 -11
Section 8.2 Reconveyance by Trustee. Upon written request of Beneficiary stating 64 0.1
that all Secured Obligations have been paid or forgiven, and all obligations under the Agency
Loan Documents have been performed in full upon expiration of the 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.
(a) 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 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:
The Poway Housing Authority
13325 Civic Center Drive
Poway, CA 92064
Attn: Executive Director
and (2) if intended for Trustor shall be addressed to:
Poway Family Housing Partners, L.P.
c/o Foundation for Affordable Housing V, Inca
30950 Rancho Viejo Road, Suite 100
San Juan Capistrano, CA 92675
Attn: Executive Director
With a copy to Affirmed:
Affirmed Housing Group, Inc.
13250 Evening Creek Drive North, Suite 160
San Diego, CA 92128
Attention: President
(b) 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. A copy of any notice sent to Beneficiary must also be sent to the Office of the
City Clerk at the above address. 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 created herein is
binding upon Trustor, the obligation shall also apply to and bind any transferee or successors in
Mi
OGardens DOT exe 8-1 AI
1 i�
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
of Trustor shall be deemed to be a joint and several obligation of each and every entity and
person comprising Trustor. =4
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 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.
17
Wardew DOT exe 8-1-11
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 Acceptance by Trustee. Trustee accepts this Trust when this Deed of
Trust, duly executed and acknowledged, is made public record as provided bylaw. 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.
Section 8.14 Tax Credit Provisions. Notwithstanding anything to the contrary
contained herein or in any documents secured by this Deed of Trust or contained in any
subordination agreement, the Beneficiary acknowledges and agrees that in the event of a
foreclosure or deed -in -lieu of foreclosure (collectively, "Foreclosure's with respect to the
Property encumbered by this Deed of Trust, the following rule contained in 26 U.S.C. Section
42(hX6)(E)(ii), as amended, shall apply:
(a) For a period of three (3) years from the date of Foreclosure, with respect to any
unit that had been regulated by the Regulatory Agreement with the California Tax Credit
Allocation Committee, (i) none of the tenants occupying those units at the time of Foreclosure
may be evicted or their tenancy terminated (other than for good cause), (ii) nor may any rent be
increased except as otherwise permitted under Section 42 of the Internal Revenue Code.
Section 8.15 Amended and Restated Deed of Trust. Trustor executed the Agency Deed
of Trust with Assignment of Rents and Security Agreement, dated as of December 22, 2009 and
recorded ih the Official Records of the Office of the Recorder of the County of San Diego as
Document No. 2009- 0704719 (the "Original Deed of Trust "). This Deed of Trust amends and
restates the Original Deed of Trust in its entirety, and upon execution and recordation of this
Deed of Trust by the Trustor the Original Deed of Trust shall be cancelled and reconveyed.
[Signature Page Follows]
18
Wardens DOT exe 8 -1 -11
IN WITNESS WHEREOF, Trustor has executed this Deed of Trust as of aV 6 ST 1)
2011.
TRUSTOR:
POWAY FAMILY HOUSING PARTNERS, L.P.,..a
California limited partnership
By: Foundation for Affordable Housing V, Inc.,
a California nonprofit public benefit corporation
Its: Managing General Partner
By. 4 ' 4� v! a
Deborrah Willard, President
By: Affirmed Housing Group, Inc., a Delaware
Corporation
Its: Administrative General Partner
By:
Ja ilverwood, Presi ent
19
4R
OGardens DOT exe 8 -1 -11
6405
STATE OF CALIFORNIA
COUNTY OF )
On 20 1 before me,
Notary - P6blic, personally appeared jl
who
proved to me on the basis of satisfactory evidence to be the person(a) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the same
in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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. LORRAINE S. BENTLEY
Com s*a # 1902171
STATE OF CALIFORNIA
COUNTY OF Y� �� )
On S� L ` 20 l\ before me,
P b ,
Notary lic, personally appeared
, who
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
--bed to the within instrument and acknowledged to me that he /she /they executed the same
in his /her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
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. � Y. DECARLO
�.
*-W #1917933
IIP �� 16 2015
Signat (Seal)
OGardens DOT exe 8 -1 -11
EXHIBIT A
Legal Description
The land is situated in the City of Poway, County of San Diego, State of California, and is
described as follows:
PARCEL 1:
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 14, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT WHICH IS 30.00 FEET DISTANT NORTHERLY AT RIGHT
ANGLES FROM THE CENTER LINE OF THE 40 FOOT COUNTY ROAD TO POWAY,
SAID POINT OF BEGINNING BEARING NORTH 70 °02'46" EAST 1005.15 FEET FROM
THE POINT OF INTERSECTION OF THE SOUTH LINE OF SAID SECTION 14 WITH THE
CENTER LINE OF MISSION ROAD 1 -A AT STATION 378 + 70.9 THEREON, AS SHOWN
ON MAP THEREOF ON FILE IN THE OFFICE OF COUNTY SURVEYOR OF SAID SAN
DIEGO COUNTY, AND BEING ALSO THE SOUTHWEST CORNER OF LAND
DESCRIBED IN THE DEED FROM R. T. CREMER, ET UX, TO EVERETT DANIELSON,
ET UX, DATED OCTOBER 4, 1940, RECORDED OCTOBER 16, 1940 IN BOOK 1085,
PAGE 127 OF OFFICIAL RECORDS; RUNNING THENCE PARALLEL WITH AND 30.00
FEET NORTHERLY AT RIGHT ANGLES FROM THE CENTER LINE OF SAID POWAY
ROAD SOUTH 83 0 20'00" WEST, 133.69 FEET; THENCE PARALLEL WITH THE WEST
LINE OF SAID DANIELSON'S LAND, NORTH 00 °43'00" EAST TO THE SOUTH LINE OF
THE NORTH 162.65 FEET (MEASURED ALONG THE EAST AND WEST LINES) OF THE
LAND DESCRIBED IN THE DEED TO KENNETH C. SNYDER, ET UX, RECORDED JUNE
10, 1968 AS DOCUMENT NO. 96618; THENCE EAST ALONG SAID SOUTH LINE TO
THE WEST LINE OF THE HEREINABOVE REFERRED TO DANIELSON'S LAND;
THENCE ALONG SAID WEST LINE SOUTH 00 °43'00" WEST, 321.97 FEET TO THE
POINT OF BEGINNING.
PARCEL 2:
THAT PORTION OF THE SOUTHEAST QUARTER OF THE SOUTHWEST QUARTER OF
SECTION 14, TOWNSHIP 14 SOUTH, RANGE 2 WEST, SAN BERNARDINO MERIDIAN,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE
OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
Exhibit A — Legal Description — page 1 of 3
Wardens DOT exe 8 -1 -11
COMMENCING AT A POINT WHICH IS 30.00 FEET DISTANT NORTHERLY AT RIGHT
ANGLES FROM THE CENTER LINE OF THE 40 FOOT COUNTY ROAD TO POWAY,
SAID POINT OF BEGINNING BEARING NORTH 70 0 02'46" EAST 1005.15 FEET FROM
THE POINT OF INTERSECTION OF THE SOUTH LINE OF SAID SECTION 14 WITH THE
CENTER LINE OF MISSION ROAD 1 -A AT STATION 378 + 70.9 THEREON, AS SHOWN
ON MAP THEREOF ON FILE IN THE OFFICE OF COUNTY SURVEYOR OF SAID SAN
DIEGO COUNTY, AND BEING ALSO THE SOUTHWEST CORNER OF LAND
DESCRIBED IN THE DEED FROM R. T. CREMER, ET UX, TO EVERETT DANIELSON,
ET UX, DATED OCTOBER 4, 1940, RECORDED OCTOBER 16, 1940 IN BOOK 1085,
PAGE 127 OF OFFICIAL RECORDS; RUNNING THENCE PARALLEL WITH AND 30.00
FEET NORTHERLY AT RIGHT ANGLES FROM THE CENTER LINE OF SAID POWAY
ROAD SOUTH 83 WEST, 133.69 FEET TO THE TRUE POINT OF BEGINNING;
THENCE CONTINUING ALONG SAID PARALLEL LINE SOUTH 83 0 20'00" WEST, 133.68
FEET TO THE EAST LINE OF LAND AS DESCRIBED IN PARCEL 2 OF THE DEED TO J.
FRANK ZITTELL AND CHARLOTTE G. ZITTELL, RECORDED MARCH 26, 1947, IN
BOOK 2374, PAGE 80 OF OFFICIAL RECORDS; THENCE ALONG THE EAST LINE OF
LAND AS DESCRIBED IN SAID PARCEL 2, NORTH 00 °43'00" EAST TO THE
SOUTHWEST CORNER OF THE NORTH 162.65 FEET (MEASURED ALONG THE EAST
AND WEST LINES) OF THE LAND DESCRIBED IN DEED TO KENNETH C. SNYDER,
ET US, RECORDED JUNE 10, 1968 AS DOCUMENT NO. 96618; THENCE EAST ALONG
THE SOUTH LINE OF SAID NORTH 162.65 FEET TO A LINE WHICH BEARS NORTH
00 °43'00" EAST, PARALLEL WITH THE WEST LINE OF SAID DANIELSON'S LANDS,
FROM THE TRUE POINT OF BEGINNING; THENCE SOUTH 00 °43'00" WEST TO THE
TRUE POINT OF BEGINNING.
PARCEL 3:
A NON- EXCLUSIVE EASEMENT FOR THE INGRESS AND EGRESS OF MOTOR
VEHICLES AND PEDESTRIANS TO PERMIT THE FREE FLOW OF VEHICULAR AND
PEDESTRIAN INGRESS AND EGRESS PURSUANT TO RECIPROCAL EASEMENT
AGREEMENT RECORDED MAY 25, 2011, AS DOCUMENT NO. 2011- 0268977 OF
OFFICIAL RECORDS, TO, FROM, OVER, AND ACROSS THOSE PORTIONS OF THE
PROPERTIES DESCRIBED IN DEEDS TO CISSY FISHER RECORDED MAY 13, 1994, AS
DOCUMENT NO. 1994 - 0317060 AND TO POWAY FAMILY HOUSING PARTNERS
RECORDED DECEMBER 22, 2009 AS DOCUMENT NO. 2009- 704717, BOTH IN THE
OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO
COUNTY, STATE OF CALIFORNIA TOGETHER WITH A PORTION OF PARCEL 1
ACCORDING TO PARCEL MAP THEREOF NO. 3710, FILED IN THE COUNTY OF SAN
DIEGO RECORDER'S OFFICE, APRIL 19, 1975, BEING MORE PARTICULARLY
DESCRIBED IN PARCELS A AND B AS FOLLOWS:
Exhibit A — Legal Description — page 2 of 3
Wardens DOT exe 8 -1 -11
PARCEL A:
A 34.00 FOOT WIDE STRIP OF LAND LYING 14.00 FEET EASTERLY OF, MEASURED
AT RIGHT ANGLES, AND PARALLEL WITH THE FOLLOWING DESCRIBED LINE AND
20 FOOT WESTERLY OF, MEASURED AT RIGHT ANGLES, AND PARALLEL WITH
THE FOLLOWING DESCRIBED LINE:
BEGINNING AT THE SOUTHEAST CORNER OF THE PROPERTY DESCRIBED IN SAID
FISHER DEED; THENCE ALONG THE EASTERLY LINE OF SAID PROPERTY NORTH
01 EAST 503.39 FEET TO A POINT ON THE WESTERLY LINE OF SAID PARCEL
1 OF PARCEL MAP 3710; THENCE ALONG THE NORTHERLY PROLONGATION OF
SAID EASTERLY LINE OF SAID FISHER PROPERTY NORTH 01 0 52'33" EAST 36.92
FEET TO THE BEGINNING OF A TANGENT 21.00 FOOT RADIUS CURVE, CONCAVE
WESTERLY, THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL
ANGLE OF 28 0 19'49" AN ARC DISTANCE OF 10.38 FEET; THENCE NORTH 26 °27'16"
WEST 4.42 FEET, MORE OR LESS, TO A POINT ON A NON- TANGENT 1250.00 FOOT
RADIUS CURVE; A RADIAL LINE TO SAID POINT BEARS SOUTH 19 °23' 18" EAST;
SAID POINT ALSO BEING ON THE SOUTHERLY RIGHT -OF -WAY LINE OF POWAY
ROAD (100 FEET WIDE) AND THE POINT OF TERMINATION AND HEREAFTER
DESCRIBED AS POINT "A ".
PARCEL B:
COMMENCING AT THE HEREINABOVE DESCRIBED POINT "A ", THENCE
SOUTHWESTERLY ALONG SAID SOUTHERLY RIGHT -OF -WAY LINE OF SAID
POWAY ROAD THROUGH A CENTRAL ANGLE OF 00 0 55'29" AN ARC DISTANCE OF
20.17 FEET TO A POINT ON THE WESTERLY LINE OF THE HEREINABOVE
DESCRIBED PARCEL A AND THE TRUE POINT OF BEGINNING; THENCE ALONG
SAID WESTERLY LINE SOUTH 26 EAST 7.07 FEET TO THE BEGINNING OF A
TANGENT 1.00 FOOT RADIUS CURVE, CONCAVE WESTERLY; THENCE ALONG SAID
CURVE THROUGH A CENTRAL ANGLE OF 28 AN ARC DISTANCE OF 0.49
FEET ; THENCE SOUTH 01 °5233" WEST 54.53 FEET; THENCE LEAVING SAID
WESTERLY LINE NORTH 02 0 08'36" WEST 28.54 FEET; THENCE NORTH 01 °52'33"
EAST 18.92 FEET TO THE BEGINNING OF A TANGENT 7.50 FOOT RADIUS CURVE,
CONCAVE SOUTHWESTERLY; THENCE NORTHERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 80 AN ARC DISTANCE OF 10.53 FEET TO A
POINT OF REVERSE CURVATURE WITH A 7.50 FOOT RADIUS CURVE, CONCAVE
NORTHEASTERLY; A RADIAL LINE TO SAID POINT BEARS NORTH 11'24'10" EAST;
THENCE NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF
43 0 59'50" AN ARC DISTANCE OF 5.76 FEET TO A POINT ON A NON- TANGENT 1250.00
FOOT RADIUS CURVE, A RADIAL LINE TO SAID POINT BEARS SOUTH 17
EAST, ALSO BEING A POINT ON THE SOUTHERLY RIGHT -OF -WAY LINE OF SAID
POWAY ROAD; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 00 AN ARC DISTANCE OF 10.20 FEET TO THE TRUE
POINT OF BEGINNING.
Exhibit A — Legal Description — page 3 of 3
OGardens DOT exe 8 -1 -11