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2023-294130FREE RECORDING REQUESTED PURSUANT TO GOV. CODE § 27383 Recording Requested BY: City of Encinitas Development Services Department 505 S. Vulcan Avenue Encinitas, CA 92024 And When Recorded Mail To: City of Encinitas City Clerk's Office 505 S. Vulcan Avenue Encinitas, CA 92024 DOC# 2023-0294130- llllllllllllllllllllllllllllllll Illllll11111111111111111111 Oct 26, 2023 09:25 AM OFFICIAL RECORDS JORDAN Z. MARKS, SAN DIEGO COUNTY RECORDER FEES: $0.00 (SB2 Atkins: $0.00) SUBORDINATION AGREEMENT (La Costa 48) PAGES: 11 THIS SUBORDINATION AGREEMENT ("Subordination Agreement") is dated as of theta day ofJ)Cfiber' , 2023, by and among the City of Encinitas ("City"), Tall West Coast LLC, a Delaware limited liability company ("Developer"), and Michael T. Tudury and Holly Weston Tudury, Trustees of the Tudury Family Trust dated January 6, 2020, Fred E. Weston, Trustee of the Fred E. Weston Family Trust dated March 28, 2002, Fred E. Weston, Trustee of the Joseph Weston Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Camille Tudury Irrevocable Trust dated October 1, 2020, Fred E. Weston, Trustee of the Fred Weston Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Holly Weston Tudury Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Fred Weston Marital Trust created under the Weston Family Trust U/D/T dated September 9, 1998 (collectively, the "Beneficiary"). RECITALS A. Developer owns and is developing the real property generally located at 510 & 514 La Costa Avenue, in the City of Encinitas, County of San Diego, California, more particularly described in that certain Deed of Trust with Assignment of Rents dated as of July 27, 2021, and recorded on August 3, 2021, as Instrument No. 2021-0552833 in the Office of the Recorder of the County of San Diego, State of California ("Deed of Trust"). B. Concurrently with recordation of this Subordination Agreement, the Developer is causing a Regulatory Agreement and Declaration of Covenants, Conditions and Restrictions for Affordable Housing Units ("Affordable Housing Agreement") to be recorded against the Property in the Office of the Recorder of the County of San Diego, State of California. C. The City, Beneficiary and Developer all agree and desire to execute this Subordination Agreement to memorialize their understanding and agreement with regard to FREE RECORDING REQUESTED PURSUANT TO GOV. CODE § 27383 Recording Requested By: City of Encinitas Development Services Department 505 S. Vulcan Avenue Encinitas, CA 92024 And When Recorded Mail To: City of Encinitas City Clerk's Office 505 S. Vulcan Avenue Encinitas, CA 92024 SUBORDINATION AGREEMENT (La Costa 48) THIS SUBORDINATION AGREEMENT ("Subordination Agreement") is dated as of the 2a day of h(--o bj,-r ) 2023, by and among the City of Encinitas ("City"), Toll West Coast LLC, a Delaware limited liability company ("Developer"), and Michael T. Tudury and Holly Weston Tudury, Trustees of the Tudury Family Trust dated January 6, 2020, Fred E. Weston, Trustee of the Fred E. Weston Family Trust dated March 28, 2002, Fred E. Weston, Trustee of the Joseph Weston Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Camille Tudury Irrevocable Trust dated October 1, 2020, Fred E. Weston, Trustee of the Fred Weston Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Holly Weston Tudury Irrevocable Trust dated October 1, 2020, Holly Weston Tudury, Trustee of the Fred Weston Marital Trust created under the Weston Family Trust U/D/T dated September 9, 1998 (collectively, the "Beneficiary"). RECITALS A. Developer owns and is developing the real property generally located at 510 & 514 La Costa Avenue, in the City of Encinitas, County of San Diego, California, more particularly described in that certain Deed of Trust with Assignment of Rents dated as of July 27, 2021, and recorded on August 3, 2021, as Instrument No. 2021-0552833 in the Office of the Recorder of the County of San Diego, State of California ("Deed of Trust"). B. Concurrently with recordation of this Subordination Agreement, the Developer is causing a Regulatory Agreement and Declaration of Covenants, Conditions and Restrictions for Affordable Housing Units ("Affordable Housing Agreement") to be recorded against the Property in the Office of the Recorder of the County of San Diego, State of California. C. The City, Beneficiary and Developer all agree and desire to execute this Subordination Agreement to memorialize their understanding and agreement with regard to the respective priorities of each of the above -referenced documents. It is the intention of the parties that the Affordable Housing Agreement shall unconditionally continue to be and remain at all times a lien, claim and charge on the Property prior and superior to the Deed of Trust. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties hereto agree as follows: 1. Subordination to the Regulatory Agreement. The Deed of Trust, together with all rights and privileges of Developer and Beneficiary thereunder, are hereby irrevocably and unconditionally made subordinate to and subject to the Affordable Housing Agreement and the Affordable Housing Agreement is and will remain at all times, a lien, claim and charge on the Property prior and superior to the Deed of Trust and to all rights and privileges of Developer and Beneficiary thereunder; provided, however, that a violation of the Affordable Housing Agreement shall not defeat, render invalid or limit the Deed of Trust. 2. Notices. The parties agree to give to each other copies of all notices of events of default under their respective documents. All notices given under this Subordination Agreement shall be in writing and sent to the party at its address appearing below (a) by certified or registered U.S. mail, return receipt requested, (b) overnight by a nationally recognized overnight courier such as UPS Overnight or Fed Ex, or (c) by personal delivery. All notices shall be effective upon receipt (or refusal to accept delivery). These addresses may be changed by any party by written notice to all other parties. If to City: City of Encinitas 505 S. Vulcan Ave. Encinitas, CA 92024 Attn: Housing If to Developer: Toll West Coast LLC 350 Commerce, Suite 200 Irvine, CA 92602 If to Beneficiary: Higgs Fletcher & Mack LLP Attn: F. Gregory Pyke 401 West A Street, Suite 2600 San Diego, CA 92101 3. Whole Agreement; Binding Effect. This Subordination Agreement is the whole and only agreement with regard to the priority of the liens, claims and charges of the Affordable Housing Agreement and the Deed of Trust. This Subordination Agreement is binding on and inures to the benefit of the legal representatives, heirs, successors and assigns of the parties. 4. Attorney's Fees. If any party to this Subordination Agreement brings an action to interpret or enforce its rights under this Subordination Agreement, the prevailing party will be entitled to recover its costs and reasonable attorney's fees as awarded in the action. 2 5. Governing Law. This Subordination Agreement is governed by, and shall be construed in accordance with, the laws of the State of California. 6. Counterparts. This Subordination Agreement may be executed in counterparts, and all counterparts constitute but one and the same document. 7. Signatures. All individuals signing this Subordination Agreement for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as a trustee, guardian, conservator, or in any other legal capacity, covenant to one another that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. IN WITNESS WHEREOF, the parties have executed this Subordination Agreement as of the date first set forth above and agree to be bound hereby. DEVELOPER: Toll West Coast LLC, a Delaware limited liability company By: Z;-e- Print Name: $g-� ff4&E- Its: 'b 1 V %S t o N. 4-FS pO �v By: Pri ' ame: er C-0,N-+-jjtnrjjn s: [SIGNATURES CONTINUED ON FOLLOWING PAGE] 3 F-1101 arlZ[9l►Tl1111114DMkvi1:4ZkI A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Orange ) On September 26, 2023 before me, Heidi L. Ferguson, Notary Public (insert name and title of the officer) personally appeared Bradley Hare who proved to me on the basis of satisfactory evidence to be the person(* -Whose name* is/tee subscribed to the within instrument and acknowledged to me that he/&heA4ey executed the same in his/hohYi& authorized capacity(iie , and that by his/ha4t4eir signaturekeron the instrument the person(}) or the entity upon behalf of which the person cted, 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. Signatu qHEIOI L. FERGUSON Oft # 2314023NOTARY PUBLIC•CAIIFORNIAfORAN.'acc iv(Seal} Mr coE, EXP. DEC. 20, 2023'd CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Californi 1 ' J} County of ry Ort. � i�(` ✓, �, r� efore me, LA ' � — 1 i�l Date {� Here Insert Name and Title off e Officer personally appeared yyy"i li Nome(s)-of Signer(S)- who proved to me on the basis of satisfactory evidence to be the personjs.) whose name(s) is/are-subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/theif authorized capacity(ies), and that by his/her/their signature(s-) on the instrument the persons) -or the entity upon behalf of which the person(s)-acted, executed the instrument. 6my LINDA BOOLEN Notary Public - CaliforniaSan Diego County Commission # 2433984 Comm. Expires Feb 7, 2027 Place Notary Seal and/or Stamp Above 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. 1 Signature V s 0 Signature of Notary Public yr 1 IVI\ML Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Other: Signer is Representing: ❑ Guardian or Conservator Number of Pages: Signer's Name: ❑ Corporate Officer - Title(s): ❑ Partner - ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: 5.< 'rEh>: :F: ,{ .. .P: •§: K• �'•::{•?:' S'rs ii•:.`:(`:£•3 :----- Pic{•7a;•i:G. 9:{>e{i i•.aC�,g:fr.: ::}:4xct,•: `2t:�' ?y{i :r:F.: :{•�:: h7•:?": �+.:3:C•:. Q2019 National• Association BENEFICIARY: Tudury Family Trust dated January 6, 2020 By: MichaerT. Tudury, Trustee By: wj-�-� Holly W"ton Tudury, Trustees ,j Fred E. Weston Family Trust dated March 28, 2002 By: Fred E. Weston, Trustee Joseph Weston Irrevocable Trust dated October 1, 2020 Fred E. Weston, Trustee Camille Tudury Irrevocable Trust dated October 1, 2020 By: Holly We6ton Tudury, Trustee Fred Weston Irrevocable Trust dated October 1, 2020 By: g)' Fred . Weston, Trustee Holly Weston Tudury Irrevocable Trust dated October 1, 2020 ' I By: 1dntwVj--wM :L,� Holly Wbbton Tudury, Trustee U Fred Weston Marital Trust created under the Weston Family Trust U/D/T dated September 9,1998 twuzov '641fly6"na tu By: Holly W66ton Tudury, Trustee 11, 111 li ji I � j,�, III 'III "I 'JI'l 0 CITY OF ENCINITAS: By: Pamela Antil, City Manager Approved as to -Form for City: By: / Tar#j in Preziosi, City Attorney CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Sc►n ' - 0 On 04tr *2,5,, 2023 before me, 1-4ne-,1 .-Ii iG Date Here Insert Name and Title of the O ficer personally appeared Vam G, nA- e Name(s) ofSigner(s) 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/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. ewwLEWIS Notary public - California San Diego County Commission N 2402633 4pmy Comm. Expires play t4, 2026 Place Notary Seal and/or Stamp Above 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. s� Signature Signature of Notary Pu Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: 3 i A 'on LLI-Alr.-fe f LA COSTA 't,y Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: C aka. 1�rli S ©2019 National Notary Association Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Individual ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer is Representing: ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego ) On d 'y `L( , 2023, before nX d , notary public, personally appeared ►.a who proved to me on the basis of satisfactory eviden a to be the person(s) w ose 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. Signature (Seal) JON SCOTT Commission No. 2407853 NOTARY PUBLIC - CALIFORNIA SAN DIEGO COUNTY iJ Commission Expires July 4, 20?_6 [.1 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego ) On OA 1110 , 2023, before me, notary public, personally appeared 'E 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/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. Signature 19 (Seal) JON SCOTT Commission No. 240r''853 z CALWMA NOTARY PUBLIC - � SAN DIEGO COUNTY 3 Commission Expires July 4, 2026 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego } On n 1 , 2023, before me, notary public, personally appeared I( L al -M q_ who proved to me on the basis of satisfactory evidence to be theheperson(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. i WITNESS my hand and official seal. Signature 0 (Seal) JON SCOTT�M�\^ Commission No. 2407853 s < L NOTARY PUBLIC - CALIFORNIA i SAN DIEGO COUNTY Commission Expires July 4, 2026